PARTICIPATION AGREEMENT
as of May 1, 2000
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin Xxxxxxxxx Distributors, Inc.
Lincoln Life & Annuity Company of New York
CONTENTS
SECTION SUBJECT MATTER
1. Parties and Purpose
2. Representations and Warranties
3. Purchase and Redemption of Trust Portfolio Shares
4. Fees, Expenses, Prospectuses, Proxy Materials and Reports
5. Voting
6. Sales Material, Information and Trademarks
7. Indemnification
8. Notices
9. Termination
10. Miscellaneous
SCHEDULES TO THIS AGREEMENT
A. The Company
B. Accounts of the Company
C. Available Portfolios and Classes of Shares of the Trust;
Investment Advisers
D. Contracts of the Company
E. Other Portfolios Available under the Contracts
F. Rule 12b-1 Plans of the Trust
G. Addresses for Notices
H. Shared Funding Order
1. PARTIES AND PURPOSE
This agreement (the "Agreement") is between certain portfolios,
specified below and in Schedule C, of Franklin Xxxxxxxxx Variable Insurance
Products Trust, an open-end management investment company organized as a
business trust under Massachusetts law (the "Trust"), Franklin Xxxxxxxxx
Distributors, Inc., a California corporation which is the principal
underwriter for the Trust (the "Underwriter," and together with the Trust,
"we" or "us") and the insurance company identified on Schedule A ("you"), on
your own behalf and on behalf of each segregated asset account maintained by
you that is listed on Schedule B, as that schedule may be amended from time
to time ("Account" or "Accounts").
The purpose of this Agreement is to entitle you, on behalf of the
Accounts, to purchase the shares, and classes of shares, of portfolios of the
Trust ("Portfolios") that are identified on Schedule C, solely for the
purpose of funding benefits of your variable life insurance policies or
variable annuity contracts ("Contracts") that are identified on Schedule D.
This Agreement does not authorize any other purchases or redemptions of
shares of the Trust.
2. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES BY YOU
You represent and warrant that:
2.1.1 redacted
2.1.2 All of your directors, officers, employees, and other
individuals or entities dealing with the money and/or securities of the Trust
are and shall be at all times covered by a blanket fidelity bond or similar
coverage, in an amount not less than $5 million. Such bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding company. You agree to make all reasonable efforts to see that this
bond or another bond containing such provisions is always in effect, and you
agree to notify us in the event that such coverage no longer applies.
2.1.3 Each Account is a duly organized, validly existing
segregated asset account under applicable insurance law and interests in each
Account are offered exclusively through the purchase of or transfer into a
"variable contract" within the meaning of such terms under Section 817 of the
Internal Revenue Code of 1986, as amended ("Code") and the regulations
thereunder. You will use your best efforts to continue to meet such
definitional requirements, and will notify us immediately upon having a
reasonable basis for believing that such requirements have ceased to be met
or that they might not be met in the future.
2.1.4 Each Account either: (i) has been registered or,
prior to any issuance or sale of the Contracts, will be registered as a unit
investment trust under the Investment Company Act of 1940 ("1940 Act"); or
(ii) has not been so registered in proper reliance upon an exemption from
registration under Section 3(c) of the 1940 Act; if the Account is exempt
from registration as an investment company under Section 3(c) of the 1940
Act, you will use your best efforts to maintain such exemption and will
notify us immediately upon having a reasonable basis for believing that such
exemption no longer applies or might not apply in the future.
2.1.5 The Contracts or interests in the Accounts: (i) are
or, prior to any issuance or sale will be, registered as securities under the
Securities Act of 1933, as amended (the "1933 Act"); or (ii) are not
registered because they are properly exempt from registration under Section
3(a)(2) of the 1933 Act or will be offered exclusively in transactions that
are properly exempt from registration under Section 4(2) or Regulation D of
the 1933 Act, in which case you will make every effort to maintain such
exemption and will notify us immediately upon having a reasonable basis for
believing that such exemption no longer applies or might not apply in the
future.
2.1.6 redacted
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2.1.7 The Contracts currently are treated as annuity
contracts or life insurance contracts under applicable provisions of the Code
and you will use your best efforts to maintain such treatment; you will
notify us immediately upon having a reasonable basis for believing that any
of the Contracts have ceased to be so treated or that they might not be so
treated in the future.
2.1.8 The fees and charges deducted under each Contract, in
the aggregate, are reasonable in relation to the services rendered, the
expenses expected to be incurred, and the risks assumed by you.
2.1.9 You will use shares of the Trust only for the purpose
of funding benefits of the Contracts through the Accounts.
2.1.10 redacted
2.1.11 With respect to any Accounts which are exempt from
registration under the 1940 Act in reliance on 3(c)(1) or Section 3(c)(7)
thereof:
2.1.11.1 the principal underwriter for each
such Account and any subaccounts
thereof is a registered
broker-dealer with the SEC under the
1934 Act;
2.1.11.2 the shares of the Portfolios of the
Trust are and will continue to be
the only investment securities held
by the corresponding subaccounts; and
2.1.11.3 with regard to each Portfolio, you,
on behalf of the corresponding
subaccount, will:
(a) vote such shares held by it in
the same proportion as the vote
of all other holders of such
shares; and
(b) refrain from substituting
shares of another security
for such shares unless the
SEC has approved such
substitution in the manner
provided in Section 26 of
the 0000 Xxx.
2.1.12 You and the principal underwriter for each of the
Contracts will comply in all material respects with the 1933 and 1940 Acts
and the rules and regulations thereunder.
2.2 REPRESENTATIONS AND WARRANTIES BY THE TRUST
The Trust represents and warrants that:
2.2.1 It is duly organized and in good standing under the
laws of the State of Massachusetts.
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2.2.2 All of its directors, officers, employees and others
dealing with the money and/or securities of a Portfolio, that are so required
by Rule 17g-1 under the 1940 Act, are and shall be at all times covered by a
blanket fidelity bond or similar coverage in an amount not less that the
minimum coverage required by Rule 17g-1 or other regulations under the 1940
Act. Such bond shall include coverage for larceny and embezzlement and be
issued by a reputable bonding company.
2.2.3 It is registered as an open-end management
investment company under the 0000 Xxx.
2.2.4 Each class of shares of the Portfolios of the
Trust is registered under the 0000 Xxx.
2.2.5 redacted
2.2.6 redacted
2.2.7 redacted
2.2.8 redacted
2.2.9 It currently intends for one or more classes of
shares (each, a "Class") to make payments to finance its distribution
expenses, including service fees, pursuant to a plan ("Plan") adopted under
rule 12b-1 under the 1940 Act ("Rule 12b-1"), although it may determine to
discontinue such practice in the future.
2.3 REPRESENTATIONS AND WARRANTIES BY THE UNDERWRITER
The Underwriter represents and warrants that:
2.3.1 It is registered as a broker dealer with the SEC
under the 1934 Act, and is a member in good standing of the NASD.
2.3.2 Each investment adviser listed on Schedule C (each,
an "Adviser") is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and any applicable state
securities law.
2.3.3 All of its directors, officers, employees and others
dealing with the money and/or securities of a Portfolio, that are so required
by Rule 17g-1 under the 1940 Act, are and shall be at all times covered by a
blanket fidelity bond or similar coverage in an amount not less that the
minimum coverage required by Rule 17g-1 or other regulations under the 1940
Act. Such bond shall include coverage for larceny and embezzlement and be
issued by a reputable bonding company. You agree to make all reasonable
efforts to see that this bond or another bond containing such provisions is
always in effect, and you agree to notify us in the event such coverage no
longer applies.
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2.3.4 It will comply in all material respects with the
1933 and 1940 Acts and the rules and regulations thereunder.
2.3.5 redacted
2.3.6 redacted
2.4 WARRANTY AND AGREEMENT BY BOTH YOU AND US
We received an order from the SEC dated November 16, 1993 (file no.
812-8546), which was amended by a notice and an order we received on
September 17, 1999 and October 13, 1999, respectively (file no. 812-11698)
(collectively, the "Shared Funding Order," attached to this Agreement as
Schedule H). The Shared Funding Order grants exemptions from certain
provisions of the 1940 Act and the regulations thereunder to the extent
necessary to permit shares of the Trust to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies and qualified pension and retirement
plans outside the separate account context. You and we both warrant and agree
that both you and we will comply with the "Applicants' Conditions" prescribed
in the Shared Funding Order as though such conditions were set forth verbatim
in this Agreement, including, without limitation, the provisions regarding
potential conflicts of interest between the separate accounts which invest in
the Trust and regarding contract owner voting privileges. In order for the
Trust's Board of Trustees to perform its duty to monitor for conflicts of
interest, you agree to inform us of the occurrence of any of the events
specified in condition 2 of the Shared Funding Order to the extent that such
event may or does result in a material conflict of interest as defined in
that order.
3. PURCHASE AND REDEMPTION OF TRUST PORTFOLIO SHARES
3.1 We will make shares of the Portfolios available to the Accounts
for the benefit of the Contracts. The shares will be available for purchase
at the net asset value per share next computed after we (or our agent)
receive a purchase order, as established in accordance with the provisions of
the then current prospectus of the Trust. For purposes of this Section 3, you
shall be the Trust's agent or designee for receipt of purchase orders and
requests for redemption. Notwithstanding the foregoing, the Trust's Board of
Trustees ("Trustees") may refuse to sell shares of any Portfolio to any
person, or may suspend or terminate the offering of shares of any Portfolio
if such action is required by law or by regulatory authorities having
jurisdiction or if, in the sole discretion of the Trustees, they deem such
action to be in the best interests of the shareholders of such Portfolio.
Without limiting the foregoing, the Trustees have determined that there is a
significant risk that the Trust and its shareholders may be adversely
affected by investors whose purchase and redemption activity follows a market
timing pattern, and have authorized the Trust, the Underwriter and the
Trust's transfer agent to adopt procedures and take other action (including,
without limitation, rejecting specific purchase orders) as they deem
necessary to reduce, discourage or eliminate market timing activity. You
agree to cooperate with us to the extent possible to assist us in
implementing the Trust's restrictions on purchase and redemption activity
that follows a market timing pattern.
3.2 We agree that shares of the Trust will be sold only to life
insurance companies which have entered into fund participation agreements
with the Trust ("Participating Insurance
5
Companies") and their separate accounts or to qualified pension and
retirement plans in accordance with the terms of the Shared Funding Order. No
shares of any Portfolio will be sold to the general public.
3.3 redacted
3.4 redacted
3.5 We shall calculate the net asset value per share of each
Portfolio on each Business Day, and shall communicate these net asset values
to you or your designated agent on a daily basis after the calculation is
completed (normally by 6:30 p.m. New York time).
3.6 You shall submit payment for the purchase of shares of a
Portfolio on behalf of an Account no later than the close of business on the
next Business Day after we receive the purchase order. Payment shall be made
in federal funds transmitted by wire to the Trust or to its designated
custodian.
3.7 redacted
3.8 Issuance and transfer of the Portfolio shares will be by book
entry only. Stock certificates will not be issued to you or the Accounts.
Portfolio shares purchased from the Trust will be recorded in the appropriate
title for each Account or the appropriate subaccount of each Account.
3.9 We shall furnish, on or before the ex-dividend date, notice to
you of any income dividends or capital gain distributions payable on the
shares of any Portfolio. You hereby elect to receive all such income
dividends and capital gain distributions as are payable on shares of a
Portfolio in additional shares of that Portfolio, and you reserve the right
to change this election in the future. We will notify you of the number of
shares so issued as payment of such dividends and distributions.
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4. FEES, EXPENSES, PROSPECTUSES, PROXY MATERIALS AND REPORTS
4.1 We shall pay no fee or other compensation to you under this
Agreement except as provided on Schedule F, if attached.
4.2 We shall prepare and be responsible for filing with the SEC, and
any state regulators requiring such filing, all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of the
Trust. We shall bear the costs of preparation and filing of the documents
listed in the preceding sentence, registration and qualification of the
Trust's shares of the Portfolios.
4.3 redacted
4.4 redacted
4.5 We shall provide you, at our expense, with copies of any
Trust-sponsored proxy materials in such quantity as you shall reasonably
require for distribution to Contract owners who are invested in a designated
subaccount. You shall bear the costs of distributing proxy materials (or
similar materials such as voting solicitation instructions) to Contract
owners.
4.6 You assume sole responsibility for ensuring that the Trust's
prospectuses, shareholder reports and communications, and proxy materials are
delivered to Contract owners in accordance with applicable federal and state
securities laws.
5. VOTING
5.1 All Participating Insurance Companies shall have the obligations
and responsibilities regarding pass-through voting and conflicts of interest
corresponding to those contained in the Shared Funding Order.
5.2 If and to the extent required by law, you shall: (i) solicit
voting instructions from Contract owners; (ii) vote the Trust shares in
accordance with the instructions received from Contract owners; and (iii)
vote Trust shares for which no instructions have been received in the same
proportion as Trust shares of such Portfolio for which instructions have been
received; so long as and to the extent that the SEC continues to interpret
the 1940 Act to require pass-through voting privileges for variable contract
owners. You reserve the right to vote Trust shares held in any Account in
your own right, to the extent permitted by law.
5.3 redacted
6. SALES MATERIAL, INFORMATION AND TRADEMARKS
6.1 For purposes of this Section 6, "Sales literature or other
Promotional material" includes, but is not limited to, portions of the
following that use any logo or other trademark related to the Trust, or
Underwriter or its affiliates, or refer to the Trust: advertisements (such as
material published or designed for use in a newspaper, magazine or other
periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, electronic communication or
other public media), sales literature (I.E., any written communication
distributed
7
or made generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts,
reprints or excerpts or any other advertisement, sales literature or
published article or electronic communication), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees in any media, and disclosure documents,
shareholder reports and proxy materials.
6.2 redacted
6.3 redacted
6.4 You and your agents shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust,
the Underwriter or an Adviser, other than information or representations
contained in and accurately derived from the registration statement or
prospectus for the Trust shares (as such registration statement and
prospectus may be amended or supplemented from time to time), annual and
semi-annual reports of the Trust, Trust-sponsored proxy statements, or in
Sales literature or other Promotional material approved by the Trust or its
designee, except as required by legal process or regulatory authorities or
with the written permission of the Trust or its designee.
6.5 We shall not give any information or make any representations
or statements on behalf of you or concerning you, the Accounts or the
Contracts other than information or representations contained in and
accurately derived from Disclosure Documents for the Contracts (as such
Disclosure Documents may be amended or supplemented from time to time), or in
materials approved by you for distribution, including Sales literature or
other Promotional materials, except as required by legal process or
regulatory authorities or with your written permission.
6.6 Except as provided in Section 6.2, you shall not use any
designation comprised in whole or part of the names or marks "Franklin" or
"Xxxxxxxxx" or any logo or other trademark relating to the Trust or the
Underwriter without prior written consent, and upon termination of this
Agreement for any reason, you shall cease all use of any such name or xxxx as
soon as reasonably practicable.
6.7 You shall furnish to us ten (10) Business Days prior to its
first submission to the SEC or its staff, any request or filing for no-action
assurance or exemptive relief naming, pertaining to, or affecting, the Trust,
the Underwriter or any of the Portfolios.
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7. INDEMNIFICATION
7.1 INDEMNIFICATION BY YOU
7.1.1 You agree to indemnify and hold harmless the
Underwriter, the Trust and each of its Trustees, officers, employees and
agents and each person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" and
individually the "Indemnified Party" for purposes of this Section 7) against
any and all losses, claims, damages, liabilities (including amounts paid in
settlement with your written consent, which consent shall not be unreasonably
withheld) or expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, liability or expense and
reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Indemnified Parties may become subject
under any statute or regulation, or at common law or otherwise, insofar as
such Losses are related to the sale or acquisition of shares of the Trust or
the Contracts and
7.1.1.1 arise out of or are based upon any untrue
statements or alleged untrue statements of any material fact contained
in a Disclosure Document for the Contracts or in the Contracts
themselves or in sales literature generated or approved by you on
behalf of the Contracts or Accounts (or any amendment or supplement to
any of the foregoing) (collectively, "Company Documents" for the
purposes of this Section 7), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that this indemnity shall not apply
as to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and was
accurately derived from written information furnished to you by or on
behalf of the Trust for use in Company Documents or otherwise for use
in connection with the sale of the Contracts or Trust shares; or
7.1.1.2 arise out of or result from statements or
representations (other than statements or representations contained in
and accurately derived from Trust Documents as defined below in
Section 7.2) or wrongful conduct of you or persons under your control,
with respect to the sale or acquisition of the Contracts or Trust
shares; or
7.1.1.3 arise out of or result from any untrue
statement or alleged untrue statement of a material fact contained in
Trust Documents as defined below in Section 7.2 or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Trust by
or on behalf of you; or
7.1.1.4 arise out of or result from any failure by
you to provide the services or furnish the materials required under
the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to have any Contract
qualify as a "variable contract" within the meaning of such term under
Section 817 of the Code, as amended, or any regulations thereunder);
9
7.1.1.5 arise out of or result from any material
breach of any representation and/or warranty made by you in this
Agreement or arise out of or result from any other material breach of
this Agreement by you; or
7.1.1.6 arise out of or result from a Contract
failing to be considered a life insurance policy or an annuity
Contract, whichever is appropriate, under applicable provisions of the
Code thereby depriving the Trust of its compliance with Section 817(h)
of the Code (including a failure, whether unintentional or in good
faith or otherwise).
7.1.2 You shall not be liable under this indemnification
provision with respect to any Losses to which an Indemnified Party would
otherwise be subject by reason of such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the Trust or
Underwriter, whichever is applicable. You shall also not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified you in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure to
notify you of any such claim shall not relieve you from any liability which
it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, you shall be entitled to
participate, at your own expense, in the defense of such action. Unless the
Indemnified Party releases you from any further obligations under this
Section 7.1, you also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from you
to such party of the your election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and you will not be liable to such party under this Agreement
for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs of investigation.
7.1.3 The Indemnified Parties will promptly notify you of
the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Trust shares or the Contracts or the
operation of the Trust.
7.2 INDEMNIFICATION BY THE UNDERWRITER
7.2.1 The Underwriter agrees to indemnify and hold harmless
you, and each of your directors and officers and each person, if any, who
controls you within the meaning of Section 15 of the 1933 Act (collectively,
the "Indemnified Parties" and individually an "Indemnified Party" for
purposes of this Section 7.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Underwriter, which consent shall not be unreasonably withheld) or
expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal
counsel fees incurred in connection therewith) (collectively, "Losses") to
which the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such Losses
10
are related to the sale or acquisition of the shares of the Trust or the
Contracts and:
7.2.1.1 arise out of or are based upon any untrue
statements or alleged untrue statements of any material fact contained
in the Registration Statement, prospectus, statement of additional
information or sales literature of the Trust (or any amendment or
supplement to any of the foregoing) (collectively, the "Trust
Documents") or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not apply
as to any Indemnified Party if such statement or omission of such
alleged statement or omission was made in reliance upon and in
conformity with information furnished to us by or on behalf of you for
use in the Registration Statement or prospectus for the Trust or in
sales literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Contracts or Trust shares; or
7.2.1.2 arise out of or as a result of statements or
representations (other than statements or representations contained in
the Disclosure Documents or sales literature for the Contracts not
supplied by the Underwriter or persons under its control) or wrongful
conduct of the Trust, Adviser or Underwriter or persons under their
control, with respect to the sale or distribution of the Contracts or
Trust shares; or
7.2.1.3 arise out of any untrue statement or alleged
untrue statement of a material fact contained in a Disclosure Document
or sales literature covering the Contracts, or any amendment thereof
or supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
to you by or on behalf of the Trust; or
7.2.1.4 arise as a result of any failure by us to
provide the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good faith
or otherwise, to comply with the qualification representation
specified above in Section 2.2.7 and the diversification requirements
specified above in Section 2.2.8); or
7.2.1.5 arise out of or result from any material
breach of any representation and/or warranty made by the Underwriter
in this Agreement or arise out of or result from any other material
breach of this Agreement by the Underwriter; as limited by and in
accordance with the provisions of Sections 7.2.2 and 7.2.3 hereof.
7.2.2 The Underwriter shall not be liable under this
indemnification provision with respect to any Losses to which an Indemnified
Party would otherwise be subject by reason of such Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the performance of
such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to you
or the Accounts, whichever is applicable.
7.2.3 The Underwriter shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have
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notified the Underwriter in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Underwriter of any such claim
shall not relieve the Underwriter from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. Unless the
Indemnified Party releases the Underwriter from any further obligations under
this Section 7.2, the Underwriter also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Underwriter to such party of the Underwriter's election
to assume the defense thereof, the Indemnified Party shall bear the expenses
of any additional counsel retained by it, and the Underwriter will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation.
7.2.4 You agree promptly to notify the Underwriter of the
commencement of any litigation or proceedings against you or the Indemnified
Parties in connection with the issuance or sale of the Contracts or the
operation of each Account.
7.3 INDEMNIFICATION BY THE TRUST
7.3.1 The Trust agrees to indemnify and hold harmless you,
and each of your directors and officers and each person, if any, who controls
you within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 7.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Trust, which consent shall not be
unreasonably withheld) or litigation (including legal and other expenses) to
which the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements result from the gross
negligence, bad faith or willful misconduct of the Board or any member
thereof, are related to the operations of the Trust, and arise out of or
result from any material breach of any representation and/or warranty made by
the Trust in this Agreement or arise out of or result from any other material
breach of this Agreement by the Trust; as limited by and in accordance with
the provisions of Sections 7.3.2 and 7.3.3 hereof. It is understood and
expressly stipulated that neither the holders of shares of the Trust nor any
Trustee, officer, agent or employee of the Trust shall be personally liable
hereunder, nor shall any resort be had to other private property for the
satisfaction of any claim or obligation hereunder, but the Trust only shall
be liable.
7.3.2 The Trust shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against any Indemnified Party
as such may arise from such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to you, the Trust, the
Underwriter or each Account, whichever is applicable.
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7.3.3 The Trust shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the Trust
in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claims shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure to
notify the Trust of any such claim shall not relieve the Trust from any
liability which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the Trust
will be entitled to participate, at its own expense, in the defense thereof.
Unless the Indemnified Party releases the Trust from any further obligations
under this Section 7.3, the Trust also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Trust to such party of the Trust's election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses
of any additional counsel retained by it, and the Trust will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
7.3.4 You agree promptly to notify the Trust of the
commencement of any litigation or proceedings against you or the Indemnified
Parties in connection with this Agreement, the issuance or sale of the
Contracts, with respect to the operation of the Account, or the sale or
acquisition of shares of the Trust.
8. NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth in Schedule G
below or at such other address as such party may from time to time specify in
writing to the other party.
9. TERMINATION
9.1 redacted
9.2 redacted
9.3 If this Agreement is terminated for any reason, except as
required by the Shared Funding Order or pursuant to Section 9.2.5.3, above,
we shall, at your option, continue to make available additional shares of any
Portfolio and redeem shares of any Portfolio pursuant to all of the terms and
conditions of this Agreement for all Contracts in effect on the effective
date of termination of this Agreement. If this Agreement is terminated as
required by the Shared Funding Order, its provisions shall govern.
9.4 The provisions of Sections 2 (Representations and Warranties)
and 7 (Indemnification) shall survive the termination of this Agreement. All
other applicable provisions of this Agreement shall survive the termination
of this Agreement, as long as shares of the Trust are held on behalf of
Contract owners in accordance with Section 9.3, except that we shall have no
further obligation to sell Trust shares with respect to Contracts issued
after termination.
13
9.5 You shall not redeem Trust shares attributable to the Contracts
(as opposed to Trust shares attributable to your assets held in the Account)
except: (i) as necessary to implement Contract owner initiated or approved
transactions; (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter
referred to as a "Legally Required Redemption"); or (iii) as permitted by an
order of the SEC pursuant to Section 26(b) of the 1940 Act. Upon reasonable
request, you shall promptly furnish to us the opinion of your counsel (which
counsel shall be reasonably satisfactory to us) to the effect that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the
Contracts, you shall not prevent Contract owners from allocating payments to
a Portfolio that was otherwise available under the Contracts without first
giving us ninety (90) days notice of your intention to do so.
10. MISCELLANEOUS
10.1 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions of
this Agreement or otherwise affect their construction or effect.
10.2 This Agreement may be executed simultaneously in two or
more counterparts, all of which taken together shall constitute one and the
same instrument.
10.3 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.
10.4 This Agreement shall be construed and its provisions
interpreted under and in accordance with the laws of the State of California.
It shall also be subject to the provisions of the federal securities laws and
the rules and regulations thereunder, to any orders of the SEC on behalf of
the Trust granting it exemptive relief, and to the conditions of such orders.
We shall promptly forward copies of any such orders to you.
10.5 The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this
Agreement, of any and every nature whatsoever, shall be satisfied solely out
of the assets of the Trust and that no Trustee, officer, agent or holder of
shares of beneficial interest of the Trust shall be personally liable for any
such liabilities.
10.6 The parties to this Agreement agree that the assets and
liabilities of each Portfolio of the Trust are separate and distinct from the
assets and liabilities of each other Portfolio. No Portfolio shall be liable
or shall be charged for any debt, obligation or liability of any other
Portfolio.
10.7 Each party to this Agreement shall cooperate with each other
party and all appropriate governmental authorities (including without
limitation the SEC, the NASD, and state insurance regulators) and shall
permit such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
14
10.8 Each party to this Agreement shall treat as confidential all
information reasonably identified as confidential in writing by any other
party to this Agreement, and, except as permitted by this Agreement or as
required by legal process or regulatory authorities, shall not disclose,
disseminate, or use such names and addresses and other confidential
information until such time as they may come into the public domain, without
the express written consent of the affected party to this Agreement. Without
limiting the foregoing, no party to this Agreement shall disclose any
information that such party has been advised is proprietary, except such
information that such party is required to disclose by any appropriate
governmental authority (including, without limitation, the SEC, the NASD, and
state securities and insurance regulators).
10.9 The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies
and obligations, at law or in equity, which the parties to this Agreement are
entitled to under state and federal laws.
10.10 The parties to this Agreement acknowledge and agree that
this Agreement shall not be exclusive in any respect, except as provided
above in Section 3.3.
10.11 Neither this Agreement nor any rights or obligations
created by it may be assigned by any party without the prior written approval
of the other parties.
10.12 No provisions of this Agreement may be amended or modified
in any manner except by a written agreement properly authorized and executed
by both parties.
15
IN WITNESS WHEREOF, each of the parties have caused their duly
authorized officers to execute this Agreement.
The Company: LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and 2nd Vice
President
The Trust: FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST
ONLY ON BEHALF OF EACH
PORTFOLIO LISTED ON
SCHEDULE C HEREOF.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
The Underwriter: FRANKLIN XXXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
16
SCHEDULE A
THE COMPANY
Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxx Xxxx 00000
Incorporated in New York.
17
SCHEDULE B
ACCOUNTS OF THE COMPANY
1. Name: LLANY Separate Account R
for Flexible Premium Variable Life Insurance
Date Established: January 29, 1998
SEC Registration Number: 811-08651
2. Name: Lincoln Life & Annuity Flexible
Premium Variable Life Account M
Date Established: November 24, 1997
SEC Registration Number: 811-08559
3. Name: Lincoln New York Separate Account N
for Variable Annuities
Date Established: March 11, 1999
SEC Registration Number: 811-09763
4. Name: LLANY Separate Account S
for Flexible Premium Variable Life Insurance
Date Established: March 2, 1999
SEC Registration Number: 811-09257
18
SCHEDULE C
AVAILABLE PORTFOLIOS AND CLASSES OF SHARES OF THE TRUST; INVESTMENT ADVISERS
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST INVESTMENT ADVISER
redacted
19
SCHEDULE D
CONTRACTS OF THE COMPANY
-----------------------------------------------------------------------------------------------------------
CONTRACT 1 CONTRACT 2 CONTRACT 3
-----------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT SVUL I VUL I Lincoln New York Choice
NAME AND TYPE Plus Variable Annuity
-----------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
-----------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-08651 811-08559 811-09763
NUMBER - 1940 ACT
-----------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN650NY LN605NY AN426NY
FORM NUMBERS
-----------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT LLANY Separate Account R Lincoln Life & Annuity Lincoln New York
NAME/DATE for Flexible Premium Flexible Premium Variable Separate Account N for
ESTABLISHED Variable Life Insurance Life Account M Variable Annuities
-----------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-46113 333-42507 333-93875
NUMBER - 1933 ACT
-----------------------------------------------------------------------------------------------------------
XXXXXXXXX VARIABLE Redacted Redacted Redacted
PRODUCTS SERIES
FUND ("TVP"),
FRANKLIN XXXXXXXXX
VARIABLE INSURANCE
PRODUCTS TRUST
("VIP") -PORTFOLIOS
AND CLASSES -
ADVISER
-----------------------------------------------------------------------------------------------------------
20
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
-----------------------------------------------------------------------------------------------------------
CONTRACT 4 CONTRACT 5 CONTRACT 6
-----------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT CVUL LVUL - I Lincoln Choice Plus
NAME AND TYPE CVUL Series III VUL Access
-----------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
-----------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-09257 811-08559 811-09763
NUMBER - 1940 ACT
-----------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN920NY LN615NY 30296-NY
FORM NUMBERS LN925 LN660NY
-----------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT LLANY Separate Account S Lincoln Life & Annuity Lincoln New York
NAME/DATE for Flexible Premium Flexible Premium Variable Separate Account N for
ESTABLISHED Variable Life Insurance Life Account M Variable Annuities
-----------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-74325 333-42507 333-37982
NUMBER - 1933 ACT
-----------------------------------------------------------------------------------------------------------
XXXXXXXXX Redacted Redacted Redacted
VARIABLE PRODUCTS
SERIES FUND
("TVP"), FRANKLIN
XXXXXXXXX
VARIABLE INSURANCE
PRODUCTS TRUST -
PORTFOLIOS AND
CLASSES - ADVISER
-----------------------------------------------------------------------------------------------------------
21
SCHEDULE E
OTHER PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
AIM X.X.Xxxxxxx Appreciation Fund Fidelity VIP Equity Income Portfolio
AIM V.I. Diversified Income Fund Fidelity VIP Growth
AIM V.I. Growth Fund Fidelity VIP High Income
AIM V.I. International Fund Fidelity VIP Overseas
AIM V.I. Value Fund Fidelity VIP II Asset Manager Portfolio
Fidelity VIP II Investment Grade Bond Portfolio
Fidelity VIP II Contrafund
Fidelity VIP III Growth Opportunities
Alliance Premier Growth Janus Aspen Balanced Portfolio
Alliance Growth and Income Janus Aspen Global Technology
Alliance Growth Janus Aspen Flexible Income
Alliance Technology Janus Aspen Worldwide Growth Portfolio
AMT Partners Fund Lincoln National Money Market Fund
AMT Mid-cap Growth Fund Lincoln National Bond Fund
Lincoln National Capital Appreciation Fund
Lincoln National Equity-Income Fund
Lincoln National Social Awareness Fund
Lincoln National Global Asset Allocation Fund
Avis Global Small Capitalization MFS Emerging Growth Series
Avis Growth MFS Total Return Series
Avis International MFS Utilities Series
Avis Growth-Income MFS Research
Xxxx Xxxx
Xxxx U.S. Government/AAA-Rated Securities Fund
Baron Capital Asset Fund OpCap Global Equity Portfolio
OpCap Managed Portfolio
BT EAFE Equity Index Fund
BT Equity 500 Index Fund
BT Small Cap Index Fund
Delaware Premium Aggressive Growth Fund
Delaware Devon Series
Delaware Emerging Markets Series
Delaware High Yield Series
Delaware International Series
Delaware Premium Growth & Income
Delaware REIT Series
Delaware Small Cap Value Series
Delaware Trend Series
22
SCHEDULE F
REDACTED
23
SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, CFO/2nd Vice President
To the Trust: Franklin Xxxxxxxxx Variable Insurance Products Trust
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
To the Underwriter: Franklin Xxxxxxxxx Distributors, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
24
AMENDMENT TO
PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin Xxxxxxxxx Distributors, Inc.
Lincoln Life & Annuity Company of New York
The
participation agreement, dated as of May 1, 2000, by and among Franklin
Templetion Variable Insurance Products Trust, Franklin Xxxxxxxxx
Distributors, Inc. and Lincoln Life & Annuity Company of New York (the
"Agreement") is hereby amended as follows:
Section 4.4 of the Agreement is deleted in its entirety and
replaced with the following provision:
4.4 At your option, we shall provide you, at our expense,
with either: (i) for each Contract owner who is invested through the
Account in a subaccount corresponding to a Portfolio ("designated
subaccount"), one copy of each of the following documents on each
occasion that such document is required by law or regulation to be
delivered to such Contract owner who is invested in a designated
subaccount: the Trust's current prospectus, annual report,
semi-annual report and other shareholder communications, including
any amendments or supplements to any of the foregoing, pertaining
specifically to the Portfolios ("Designated Portfolio Documents"); or
(ii) a camera ready copy of such Designated Portfolio Documents in a
form suitable for printing and from which information relating to
series of the Trust other than the Portfolios has been deleted to the
extent practicable. In connection with clause (ii) of this paragraph,
we will pay for proportional printing costs for such Designated
Portfolio Documents in order to provide one copy for each Contract
owner who is invested in a designated subaccount on each occasion
that such document is required by law or regulation to be delivered
to such Contract owner, and provided the appropriate documentation is
provided and approved by us. We shall provide you with a copy of the
Trust's current statement of additional information, including any
amendments or supplements, in a form suitable for you to duplicate.
The expenses of furnishing, including mailing, to Contract owners the
documents refereed to in this paragraph shall he borne by you. For
each of the documents provided to you in accordance with clause (i)
of this paragraph 4.4, we shall provide you, upon your request and at
your expense, additional copies. In no event shall we be responsible
for the costs of printing or delivery of Designated Portfolio
Documents to potential or new Contract owners or the delivery of
Designated Portfolio Documents to existing contract owners.
All other ten's and provisions of the Agreement not amended herein shall
remain in full force and effect
Effective Date as of May 1,2000.
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST FRANKLIN XXXXXXXXX DISTRIBUTORS. INC.
---------------------------------------------------- -------------------------------------
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxx
Name: Xxxxx X. Xxxxxxxx Name: Xxxx Xxxxxx
Title: Assistant Vice President Title: Vice President
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
----------------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
AMENDMENT TO
PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin Xxxxxxxxx Distributors, Inc.
Lincoln Life & Annuity Company of New York
The
participation agreement, dated as of May 1, 2000, by and among Franklin
Xxxxxxxxx Variable Insurance Products Trust, Franklin Xxxxxxxxx Distributors,
Inc. and Lincoln Life & Annuity Company of New York (the "Agreement") is hereby
amended as follows:
Schedule D of the Agreement is hereby deleted in its entirety and
replaced with the Schedule D attached hereto.
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective Date as of July 15, 2001.
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST FRANKLIN XXXXXXXXX DISTRIBUTORS, INC.
---------------------------------------------------- -------------------------------------
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx Xxxxxx
Title: Assistant Vice President Title: Vice President
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
-------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Second Vice President
SCHEDULE D
CONTRACTS OF THE COMPANY
-------------------------------------------------------------------------------------------------------------------------
CONTRACT 1 CONTRACT 2 CONTRACT 3
-------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT SVUL I VUL I Lincoln ChoicePlus
NAME AND TYPE Variable Annuity
-------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
-------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-46113 333-42507 333-93875
NUMBER - 1933 ACT
-------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN650NY LN605NY AN426NY
FORM NUMBERS
-------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT LLANY Separate Account R Lincoln Life & Annuity Lincoln New York
NAME/DATE for Flexible Premium Flexible Premium Variable Separate Account N for
ESTABLISHED Variable Life Insurance Life Account M Variable Annuities
1/29/98 11/24/97 3/11/99
-------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-08651 811-08559 811-09763
NUMBER - 1940 ACT
-------------------------------------------------------------------------------------------------------------------------
XXXXXXXXX VARIABLE
PRODUCTS SERIES
FUND ("TVP"), FRANKLIN
XXXXXXXXX VARIABLE
INSURANCE PRODUCTS
TRUST ("VIP") -
PORTFOLIOS AND
CLASSES - ADVISER
-------------------------------------------------------------------------------------------------------------------------
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
-------------------------------------------------------------------------------------------------------------------------
CONTRACT 4 CONTRACT 5 CONTRACT 6
-------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT CVUL LVUL - I Lincoln ChoicePlus Access
NAME AND TYPE CVUL Series III VUL
-------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
-------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-74325 333-42507 333-37982
NUMBER - 1933 ACT
-------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN920NY LN615NY 30296NY
FORM NUMBERS LN925 LN660NY
-------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT LLANY Separate Account S Lincoln Life & Annuity Lincoln New York
NAME/DATE for Flexible Premium Flexible Premium Variable Separate Account N for
ESTABLISHED Variable Life Insurance Life Account M Variable Annuities
3/2/99 11/24/97 3/11/99
-------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-09257 811-08559 811-09763
NUMBER - 19403 ACT
-------------------------------------------------------------------------------------------------------------------------
TEMPLETON VARIABLE
PRODUCTS SERIES
FUND ("TVP"), FRANKLIN
XXXXXXXXX VARIABLE
INSURANCE PRODUCTS
TRUST - PORTFOLIOS
AND CLASSES - ADVISER
-------------------------------------------------------------------------------------------------------------------------
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
-------------------------------------------------------------------------------------------------------------------------
CONTRACT 7 CONTRACT 8 CONTRACT 9
-------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT SVUL II MoneyGuard LVUL(CV)
NAME AND TYPE
-------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes
-------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-33778 333-42507
NUMBER - 1933 ACT
-------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN655NY LN665NY LN680NY
FORM NUMBERS
-------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT LLANY Separate Account R Lincoln Life & Annuity Lincoln Life & Annuity
NAME/DATE for Flexible Premium Flexible Premium Variable Flexible Premium Variable
ESTABLISHED Variable Life Insurance Life Account M Life Account M
1/29/98 11/24/97 11/24/97
-------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-08651 811-08559 811-08559
NUMBER - 1940 ACT
-------------------------------------------------------------------------------------------------------------------------
TEMPLETON VARIABLE < same funds as SVUL I Franklin Small Cap Fund - Franklin Small Cap Fund -
PRODUCTS SERIES FUND ...see "Contract 1 > Class 2 - Franklin Class 2 - Franklin
("TVP"), FRANKLIN Advisors, Inc. Advisors, Inc.
TEMPLETON VARIABLE
INSURANCE PRODUCTS TRUST Templeton Growth Securities Templeton Growth Securities
("VIP") -PORTFOLIOS AND Fund - Class 2 - Xxxxxxxxx Fund - Class 2 - Templeton
CLASSES - ADVISER Global Advisors Limited Global Advisors Limited
-------------------------------------------------------------------------------------------------------------------------
SCHEDULE D (CONTINUED)
CONTRACTS OF THE COMPANY
-------------------------------------------------------------------------------------------------------------------------
CONTRACT 10 CONTRACT 11 CONTRACT 12
-------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT Lincoln ChoicePlus II Lincoln ChoicePlus II Access Lincoln ChoicePlus II Advance
NAME AND TYPE
-------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N)
-------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION
NUMBER - 1933 ACT
-------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE
FORM NUMBERS
-------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT Lincoln New York Lincoln New York Lincoln New York
NAME/DATE Separate Account N for Separate Account N for Separate Account N for
ESTABLISHED Variable Annuities Variable Annuities Variable Annuities
3/11/99 3/11/99 3/11/99
-------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-09763 811-09763 811-09763
NUMBER - 1940 ACT
-------------------------------------------------------------------------------------------------------------------------
TEMPLETON VARIABLE Franklin Small Cap Fund - Franklin Small Cap Fund - Franklin Small Cap Fund -
PRODUCTS SERIES FUND Class 2 - Franklin Class 2 - Franklin Class 2 - Franklin
("TVP"), FRANKLIN Advisors, Inc. Advisors, Inc. Advisors, Inc.
TEMPLETON VARIABLE
INSURANCE PRODUCTS Templeton Growth Securities Templeton Growth Securities Templeton Growth Securities
TRUST - PORTFOLIOS Fund - Class 2 - Xxxxxxxxx Fund - Class 2 - Xxxxxxxxx Fund - Class 2 - Templeton
AND CLASSES - ADVISER Global Advisors Limited Global Advisors Limited Global Advisors Limited
-------------------------------------------------------------------------------------------------------------------------
AMENDMENT TO
PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin Xxxxxxxxx Distributors, Inc.
Lincoln Life & Annuity Company of New York
The
participation agreement, dated as of May 1, 2000, by and among Franklin
Xxxxxxxxx Variable Insurance Products Trust, Franklin Xxxxxxxxx Distributors,
Inc. and Lincoln Life & Annuity Company of New York (the "Agreement") is hereby
amended as follows:
Section 3.11 is hereby added as follows:
3.11 Each party to this Agreement agrees that, in the event of a
material error resulting from incorrect information or confirmations,
the parties will seek to comply in all material respects with the
provisions of applicable federal securities laws.
Schedule D of the Agreement is hereby deleted in its entirety and replaced
with the Schedule D attached hereto.
Schedule G of the Agreement is hereby amended as follows:
Addresses for Notices
To the Company: Lincoln Life & Annuity Company of New York
C/O Lincoln National Life Insurance Co.
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
Second Vice President
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective Date as of August 1, 200
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST FRANKLIN XXXXXXXXX DISTRIBUTORS, INC.
By: __/s/ Xxxxx X. Skidmore_________ By: ___/s/ Xxxxxx Kearns_____
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx Xxxxxx
Title: Assistant Vice President Title: Vice President
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: __/s/ Xxxxxx X. Kluever_________
Name: Xxxxxx X. Xxxxxxx
Title: Second Vice President
SCHEDULE D
CONTRACTS OF THE COMPANY
CONTRACT 1 CONTRACT 2 CONTRACT 3
----------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT NAME AND SVUL I VUL I Lincoln ChoicePlus Variable
TYPE Annuity
----------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-46113 333-42507 333-93875
NUMBER-1933 ACT
----------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN650NY LN605NY AN426NY
FORM NUMBERS
----------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT LLANY Separate Account R for Lincoln Life & Annuity Lincoln New York Separate
NAME/DATE Flexible Premium Variable Flexible Premium Variable Life Account N for Variable
ESTABLISHED Life Insurance Account M Annuities
1/29/98 11/24/97 3/11/99
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-08651 811-08559 811-09763
NUMBER - 1940 ACT
----------------------------------------------------------------------------------------------------------------------------
TEMPLETON VARIABLE Templeton Global Asset Templeton Global Asset Franklin Small Cap Fund -
PRODUCTS SERIES Allocation Fund - Class 1 Allocation Fund - Class 1 Class 2 - Franklin
FUND ("TVP"), - Xxxxxxxxx Investment - Xxxxxxxxx Investment Advisors, Inc.
FRANKLIN XXXXXXXXX Counsel, Inc. Counsel, Inc.
VARIABLE INSURANCE Mutual Shares Securities
PRODUCTS TRUST Xxxxxxxxx Foreign Xxxxxxxxx Foreign Fund Class 2 - Franklin
("VIP") - PORTFOLIOS Securities Fund - Class 1 Securities Fund - Class 1 - Mutual Advisers, LLC
AND CLASSES - - Xxxxxxxxx Investment Xxxxxxxxx Investment
ADVISER Counsel, Inc. Counsel, Inc. Xxxxxxxxx Foreign
Securities Fund - Class 2 -
Templeton Growth Templeton Growth Xxxxxxxxx Investment
Securities Fund - Class 1 Securities Fund - Class 1 - Counsel, Inc.
- Xxxxxxxxx Investment Xxxxxxxxx Investment
Counsel, Inc. Counsel, Inc. Templeton Growth
Securities Fund Class 2 -
Xxxxxxxxx Investment
Counsel, Inc.
----------------------------------------------------------------------------------------------------------------------------
CONTRACT 4 CONTRACT 5 CONTRACT 6
--------------------------- --------------------------- --------------------------- -------------------------------
CONTRACT/PRODUCT CVUL III LVUL - I Lincoln ChoicePlus Access
NAME AND TYPE VUL
----------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-74325 333-42507 333-37982
NUMBER - 1933 ACT
----------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN920NY LN615NY 30296NY
FORM NUMBERS LN925 LN660NY
----------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT LLANY Separate Account Lincoln Life & Annuity Lincoln New York
NAME/DATE S for Flexible Premium Flexible Premium Variable Separate Account N for
ESTABLISHED Variable Life Insurance Life Account M Variable Annuities
3/2/99 11/24/97 3/11/99
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-09257 811-08559 811-09763
NUMBER - 19403
ACT
----------------------------------------------------------------------------------------------------------------------------
XXXXXXXXX Xxxxxxxx Small Cap Fund - Xxxxxxxxx Foreign Franklin Small Cap Fund -
VARIABLE PRODUCTS Class 1 - Franklin Securities Fund - Class 2 - Class 2 - Franklin
SERIES FUND Advisors, Inc. Xxxxxxxxx Investment Advisors, Inc.
("TVP"), FRANKLIN Counsel, Inc.
TEMPLETON Templeton Growth Mutual Shares Securities
VARIABLE INSURANCE Securities Fund - Class 1 - Templeton Growth Fund Class 2 - Franklin
PRODUCTS TRUST - Xxxxxxxxx Investment Securities Fund - Class 2 - Mutual Advisers, LLC
PORTFOLIOS AND Counsel, Inc. Xxxxxxxxx Investment
CLASSES - ADVISER Counsel, Inc. Templeton Foreign
Securities Fund - Class 2 -
Xxxxxxxxx Investment
Counsel, Inc.
Templeton Growth
Securities Fund - Class 2 -
Xxxxxxxxx Investment
Counsel, Inc.
----------------------------------------------------------------------------------------------------------------------------
CONTRACT 7 CONTRACT 8 CONTRACT 9
----------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT SVUL II MoneyGuard LVUL(CV)
NAME AND TYPE
----------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-33778 333-42507
NUMBER -1933 ACT
----------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN655NY LN665NY LN680NY
FORM NUMBERS
----------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT LLANY Separate Lincoln Life & Annuity Lincoln Life & Annuity
NAME/DATE Account R for Flexible Flexible Premium Variable Flexible Premium Variable
ESTABLISHED Premium Variable Life Life Account M Life Account M
Insurance 11/24/97 11/24/97
1/29/98
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-08651 811-08559 811-08559
NUMBER - 1940 ACT
----------------------------------------------------------------------------------------------------------------------------
TEMPLETON VARIABLE Templeton Growth Franklin Small Cap Fund - Franklin Small Cap Fund -
PRODUCTS SERIES Securities Fund - Class 2 Class 1 - Franklin Class 1 - Franklin
FUND ("TVP"), - Xxxxxxxxx Global Advisors, Inc. Advisors, Inc.
FRANKLIN XXXXXXXXX Advisors Limited
VARIABLE INSURANCE Templeton Growth Templeton Growth
PRODUCTS TRUST Templeton Foreign Securities Fund - Class 1 - Securities Fund - Class 2 -
("VIP") -PORTFOLIOS Securities Fund - Class 2 Templeton Global Templeton Global
AND CLASSES - - Xxxxxxxxx Investment Advisors Limited Advisors Limited
ADVISER Counsel, Inc.
Xxxxxxxxx Foreign
Franklin Small Cap Fund Securities Fund - Class 2 -
- Class 1 - Franklin Xxxxxxxxx Investment
Advisors, Inc. Counsel, Inc.
----------------------------------------------------------------------------------------------------------------------------
CONTRACT 10 CONTRACT 11 CONTRACT 12
----------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT Lincoln ChoicePlus II Lincoln ChoicePlus II Access Lincoln ChoicePlus II Advance
NAME AND TYPE
----------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-93875 333-37982 333-61554
NUMBER -1933 ACT
----------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE 30070BNY 30070BNY 30070BNY
FORM NUMBERS
----------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT Lincoln New York Lincoln New York Lincoln New York Separate
NAME/DATE Separate Account N for Separate Account N for Account N for
ESTABLISHED Variable Annuities Variable Annuities Variable Annuities
3/11/99 3/11/99 3/11/99
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-09763 811-09763 811-09763
NUMBER - 1940 ACT
----------------------------------------------------------------------------------------------------------------------------
XXXXXXXXX Xxxxxxxx Small Cap Fund - Franklin Small Cap Fund - Franklin Small Cap Fund -
VARIABLE PRODUCTS Class 2 - Franklin Class 2 - Franklin Class 2 - Franklin
SERIES FUND Advisors, Inc. Advisors, Inc. Advisors, Inc.
("TVP"), XXXXXXXX
XXXXXXXXX Xxxxxxxxx Growth Templeton Growth Templeton Growth
VARIABLE INSURANCE Securities Fund - Class 2 - Securities Fund - Class 2 - Securities Fund - Class 2 -
PRODUCTS TRUST - Templeton Global Templeton Global Templeton Global
PORTFOLIOS AND Advisors Limited Advisors Limited Advisors Limited
CLASSES - ADVISER
----------------------------------------------------------------------------------------------------------------------------
CONTRACT 13 CONTRACT 14 CONTRACT 15
----------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT VULdb VULdb (Elite Series) Lincoln ChoicePlus II Bonus
NAME AND TYPE
----------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-52194 333-52194 333-91182
NUMBER-1933 ACT
----------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN680 LN680 30070BNYFA2
FORM NUMBERS LN680-U LN680-U
----------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT Lincoln Life & Annuity Lincoln Life & Annuity Lincoln New York Separate
NAME/DATE Flexible Premium Variable Flexible Premium Variable Life Account N for Variable
ESTABLISHED Life Account M Account M Annuities
11/24/97 11/24/97 3/11/99
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-08559 811-08559 811-09763
NUMBER - 1940 ACT
----------------------------------------------------------------------------------------------------------------------------
TEMPLETON Templeton Growth Templeton Growth Franklin Small Cap Fund -
VARIABLE PRODUCTS Securities Fund - Class 2 - Securities Fund - Class 1 - Class 2 - Franklin
SERIES FUND Templeton Global Xxxxxxxxx Global Advisors, Inc.
("TVP"), FRANKLIN Advisors Limited Advisors Limited
TEMPLETON Templeton Growth
VARIABLE INSURANCE Templeton Foreign Securities Franklin Small Cap Fund - Securities Fund - Class 2 -
PRODUCTS TRUST - Fund - Class 2 - Class 1 - Franklin Xxxxxxxxx Global
PORTFOLIOS AND Xxxxxxxxx Investment Advisors, Inc. Advisors Limited
CLASSES - ADVISER Counsel, Inc.
Franklin Small Cap Fund -
Class 1 - Franklin
Advisors, Inc.
----------------------------------------------------------------------------------------------------------------------------
CONTRACT 16 CONTRACT 17 CONTRACT 18
----------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT VULdb II SVUL (Elite) SVUL II (Elite)
NAME AND TYPE
----------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-84688 333-46113 333-46113
NUMBER -1933 ACT
----------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN690NY LN650NY LN655
FORM NUMBERS
----------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT Lincoln Life & Annuity LLANY Separate Account LLANY Separate Account
NAME/DATE Flexible Premium Variable R for Flexible Premium R for Flexible Premium
ESTABLISHED Life Account M Variable Life Insurance Variable Life Insurance
11/24/97 1/29/98 1/29/98
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-08559 811-08651 811-08651
NUMBER - 1940 ACT
----------------------------------------------------------------------------------------------------------------------------
TEMPLETON Templeton Growth Templeton Growth Templeton Growth
VARIABLE PRODUCTS Securities Fund - Class 1 - Securities Fund - Class 1- Securities Fund - Class 1 -
SERIES FUND Templeton Global Templeton Global Templeton Global
("TVP"), FRANKLIN Advisors Limited Advisors Limited Advisors Limited
TEMPLETON
VARIABLE INSURANCE Franklin Small Cap Fund - Franklin Small Cap Fund - Franklin Small Cap Fund -
PRODUCTS TRUST - Class 1 - Franklin Class 1 - Franklin Class 1 - Franklin
PORTFOLIOS AND Advisors, Inc. Advisors, Inc. Advisors, Inc.
CLASSES - ADVISER
----------------------------------------------------------------------------------------------------------------------------
CONTRACT 19 CONTRACT 20 CONTRACT 21
----------------------------------------------------------------------------------------------------------------------------
CONTRACT/PRODUCT VULcv II (Elite) VULcv III SVUL III
NAME AND TYPE
----------------------------------------------------------------------------------------------------------------------------
REGISTERED (Y/N) Yes Yes Yes
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 333-61594 333-84684 333-90508
NUMBER -1933 ACT
----------------------------------------------------------------------------------------------------------------------------
REPRESENTATIVE LN665 LN670NY LN656NY
FORM NUMBERS LN665-U
----------------------------------------------------------------------------------------------------------------------------
SEPARATE ACCOUNT Lincoln Life & Annuity Lincoln Life & Annuity LLANY Separate Account R for
NAME/DATE Flexible Premium Variable Flexible Premium Variable Life Flexible Premium Variable
ESTABLISHED Life Account M Account M Life Insurance
11/24/97 11/24/97 1/29/98
----------------------------------------------------------------------------------------------------------------------------
SEC REGISTRATION 811-08559 811-08559 811-08651
NUMBER - 1940 ACT
----------------------------------------------------------------------------------------------------------------------------
TEMPLETON Templeton Growth Templeton Growth Templeton Growth
VARIABLE PRODUCTS Securities Fund - Class 1 - Securities Fund - Class 1 - Securities Fund - Class 1-
SERIES FUND Templeton Global Templeton Global Templeton Global
("TVP"), FRANKLIN Advisors Limited Advisors Limited Advisors Limited
TEMPLETON
VARIABLE INSURANCE Franklin Small Cap Fund - Franklin Small Cap Fund - Franklin Small Cap Fund -
PRODUCTS TRUST - Class 1 - Franklin Class 1 - Franklin Class 1 - Franklin
PORTFOLIOS AND Advisors, Inc. Advisors, Inc. Advisors, Inc.
CLASSES - ADVISER
----------------------------------------------------------------------------------------------------------------------------
FORM OF
AMENDMENT NO. 3 TO
PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin Xxxxxxxxx Distributors, Inc.
Lincoln Life & Annuity Company of New York
[name of insurance company distributor]
The
participation agreement, dated as of May 1, 2000 by and among Franklin
Xxxxxxxxx Variable Insurance Products Trust, Franklin Xxxxxxxxx Distributors,
Inc. and Lincoln Life & Annuity Company of New York (the "Agreement"), is hereby
amended as follows:
1. [name of insurance company distributor] is added as a party to the
Agreement.
2. The following Section 2.1.12 is added to the Agreement:
"2.1.12 As covered financial institutions we, only with respect to
Portfolio shareholders, and you each undertake and agree to comply, and to
take full responsibility in complying with any and all applicable laws,
regulations, protocols and other requirements relating to money laundering
including, without limitation, the International Money Laundering Abatement
and Anti-Terrorist Financing Act of 2001 (Title III of the USA PATRIOT
Act)."
3. The following paragraphs of Section 3 are hereby deleted in their entirety
and replaced with the following paragraphs:
"3.1 We will make shares of the Portfolios available to the Accounts
for the benefit of the Contracts. The shares will be available for purchase
at the net asset value per share next computed after we (or our agent)
receive a purchase order, as established in accordance with the provisions
of the then current prospectus of the Trust. Notwithstanding the foregoing,
the Trust's Board of Trustees ("Trustees") may refuse to sell shares of any
Portfolio to any person, or may suspend or terminate the offering of shares
of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or if, in the sole discretion of the
Trustees, they deem such action to be in the best interests of the
shareholders of such Portfolio. Without limiting the foregoing, the
Trustees have determined that there is a significant risk that the Trust
and its shareholders may be adversely affected by investors with short term
trading activity and/or whose purchase and redemption activity follows a
market timing pattern as defined in the prospectus for the Trust, and have
authorized the Trust, the Underwriter and the Trust's transfer agent to
adopt procedures and take other action (including, without limitation,
rejecting specific purchase orders) as they deem necessary to reduce,
discourage or eliminate such trading and/or market timing activity. You
agree to cooperate with us to assist us in implementing the Trust's
restrictions on excessive and/or short term trading activity and/or
purchase and redemption activity that follows a market timing pattern.
1
3.4 You are hereby appointed as our designee for the sole purpose of
receiving from Contract owners purchase and exchange orders and requests
for redemption resulting from investment in and payments under the
Contracts that pertain to subaccounts that invest in Portfolios
("Instructions"). "Business Day" shall mean any day on which the New York
Stock Exchange is open for trading and on which the Trust calculates its
net asset value pursuant to the rules of the SEC and its current
prospectus. "Close of Trading" shall mean the close of trading on the New
York Stock Exchange, generally 4:00 p.m. eastern time. You represent and
warrant that all Instructions transmitted to us for processing on or as of
a given Business Day ("Day 1") shall have been received in proper form and
time stamped by you prior to the Close of Trading on Day 1. Such
Instructions shall receive the share price next calculated following the
Close of Trading on Day 1, provided that we receive such Instructions from
you before 9 a.m. Eastern Time on the next Business Day ("Day 2"). You
represent and warrant that Instructions received in proper form and time
stamped by you after the Close of Trading on Day 1 shall be treated by you
and transmitted to us as if received on Day 2. Such Instructions shall
receive the share price next calculated following the Close of Trading on
Day 2. You represent and warrant that you have and will maintain systems in
place reasonably designed to prevent Instructions received after the Close
of Trading on Day 1 from being executed with Instructions received before
the Close of Trading on Day 1. All Instructions we receive from you after 9
a.m. Eastern Time on Day 2 shall be processed by us on the following
Business Day and shall receive the share price next calculated following
the Close of Trading on Day 2."
4. Section 9 of the Agreement is hereby deleted in its entirety and replaced
with the following Section 9:
"9. TERMINATION
9.1 This Agreement may be terminated by mutual agreement at any time.
If this Agreement is so terminated, we shall, at your option, continue to
make available additional shares of any Portfolio and redeem shares of any
Portfolio for any or all Contracts or Accounts existing on the effective
date of termination of this Agreement, pursuant to the terms and conditions
of this Agreement.
9.2 This Agreement may be terminated by any party in its entirety or
with respect to one, some or all Portfolios for any reason by sixty (60)
days' advance written notice delivered to the other parties. If this
Agreement is so terminated, we may, at our option, continue to make
available additional shares of any Portfolio and redeem shares of any
Portfolio for any or all Contracts or Accounts existing on the effective
date of termination of this Agreement, pursuant to the terms and conditions
of this Agreement; alternatively, we may, at our option, redeem the
Portfolio shares held by the Accounts, PROVIDED that such redemption shall
not occur prior to six (6) months following written notice of termination,
during which time we will cooperate with you in effecting a transfer of
Portfolio assets to another underlying fund pursuant to any legal and
appropriate means.
2
9.3 This Agreement may be terminated immediately by us upon written
notice to you if you materially breach any of the representations and
warranties made in this Agreement or you are materially in default in the
performance of any of your duties or obligations under the Agreement,
receive a written notice thereof and fail to remedy such default or breach
to our reasonable satisfaction within 30 days after such notice. If this
Agreement so terminates, the parties shall cooperate to effect an orderly
windup of the business which may include, at our option, a redemption of
the Portfolio shares held by the Accounts, PROVIDED that such redemption
shall not occur prior to a period of up to six (6) months following written
notice of termination, during which time we will cooperate reasonably with
you in effecting a transfer of Portfolio assets to another underlying fund
pursuant to any legal and appropriate means.
9.4 This Agreement may be terminated immediately by us upon written
notice to you if, with respect to the representations and warranties made
in sections 2.1.3, 2.1.5, 2.1.7 and 2.1.12 of this Agreement: (i) you
materially breach any of such representations and warranties; or (ii) you
inform us that any of such representations and warranties may no longer be
true or might not be true in the future; or (iii) any of such
representations and warranties were not true on the effective date of this
Agreement, are at any time no longer true, or have not been true during any
time since the effective date of this Agreement. If this Agreement is so
terminated, the Trust may redeem, at its option in kind or for cash, the
Portfolio shares held by the Accounts on the effective date of termination
of this Agreement.
9.5 This Agreement may be terminated by the Board of Trustees of the
Trust, in the exercise of its fiduciary duties, either upon its
determination that such termination is a necessary and appropriate remedy
for a material breach of this Agreement which includes a violation of laws,
or upon its determination to completely liquidate a Portfolio. Pursuant to
such termination, the Trust may redeem, at its option in kind or for cash,
the Portfolio shares held by the Accounts on the effective date of
termination of this Agreement;
9.6 This Agreement shall terminate immediately in the event of its
assignment by any party without the prior written approval of the other
parties, or as otherwise required by law. If this Agreement is so
terminated, the Trust may redeem, at its option in kind or for cash, the
Portfolio shares held by the Accounts on the effective date of termination
of this Agreement.
9.7 This Agreement shall be terminated as required by the Shared
Funding Order, and its provisions shall govern.
9.8 The provisions of Sections 2 (Representations and Warranties) and
7 (Indemnification) shall survive the termination of this Agreement. All
other applicable provisions of this Agreement shall survive the termination
of this Agreement, as long as shares of the Trust are held on behalf of
Contract owners, except that we shall have no further obligation to sell
Trust shares with respect to Contracts issued after termination.
3
9.9 You shall not redeem Trust shares attributable to the Contracts
(as opposed to Trust shares attributable to your assets held in the
Account) except: (i) as necessary to implement Contract owner initiated or
approved transactions; (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"); or (iii) as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act.
Upon request, you shall promptly furnish to us the opinion of your counsel
(which counsel shall be reasonably satisfactory to us) to the effect that
any redemption pursuant to clause (ii) of this Section 9.9 is a Legally
Required Redemption. Furthermore, you shall not prevent Contract owners
from allocating payments to any Portfolio that has been available under a
Contract without first giving us ninety (90) days advance written notice of
your intention to do so."
5. The following Section 10.13 is added to the Agreement:
"10.13 We and you both agree that: (a) if the Trustees approve a
revision of Section 3 of the form of Participation Agreement used by the
Trust for the purpose of clarifying procedures and responsibilities
regarding purchase and redemption of Portfolio shares to address recent
regulatory concerns regarding late trading and market timing activity (the
"Form"), then we and you will both negotiate in good faith and execute an
amendment to Section 3 of this Agreement to achieve the purposes intended
by such revision of the Form ("Amendment"); and (b) if an Amendment is not
completed and fully executed by you and us by six months after the
Trustees' approval of the revised Form, then this Agreement will terminate
immediately at that time, notwithstanding any other termination provisions
in this Agreement, and such termination shall be considered a termination
by mutual agreement pursuant to Section 9.1 of this Agreement."
6. Schedules A, C, D, F and G of the Agreement are hereby deleted in their
entirety and replaced with the Schedules A, C, D, F and G attached hereto,
respectively.
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective Date as of May 1, 2003.
FRANKLIN XXXXXXXXX VARIABLE LINCOLN LIFE & ANNUITY COMPANY OF
INSURANCE PRODUCTS TRUST NEW YORK
By: By:
---------------------------------- ----------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Rise X.X. Xxxxxx
Title: Assistant Vice President Title: Senior Vice President
4
FRANKLIN XXXXXXXXX DISTRIBUTORS, [NAME OF INSURANCE COMPANY DISTRIBUTOR]
INC.
By: By:
---------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxx Name:
Title: Vice President Title:
5
SCHEDULE A
THE COMPANY AND ITS DISTRIBUTOR
THE COMPANY
Lincoln Life & Annuity Company of New York
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
A life insurance company incorporated in the Commonwealth of Massachusetts
ITS DISTRIBUTOR
[Name of Distributor]
Address ____________
______________________
A corporation organized under the laws of state of _________________.
B
SCHEDULE C
AVAILABLE PORTFOLIOS AND CLASSES OF SHARES OF THE TRUST; INVESTMENT ADVISERS
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS
TRUST INVESTMENT ADVISER
---------------------------------------------- ------------------
Franklin Small Cap Fund, Classes 1 and 2 Franklin Advisers, Inc.
Templeton Foreign Securities Fund, Classes 1 and 2 Xxxxxxxxx Investment Counsel, LLC
Templeton Global Asset Allocation Fund, Class 1 Xxxxxxxxx Investment Counsel, LLC
Templeton Growth Securities Fund, Classes 1 and 2 Xxxxxxxxx Global Advisors Ltd.
C
SCHEDULE D
CONTRACTS OF THE COMPANY
PRODUCT NAME
REGISTERED Y/N SEPARATE ACCOUNT NAME
1933 ACT #, STATE FORM REGISTRATION DATE
# ID 1940 ACT # CLASSES OF SHARES AND PORTFOLIOS
-------------------------------------------------------------------------------------------------------------
1. SVUL I LLANY Separate Account R for CLASS 1 SHARES:
Yes Flexible Premium Variable Xxxxxxxxx Foreign Securities Fund
333-46113 Life Insurance Templeton Global Asset Allocation Fund
LN650NY January 29, 1998 Templeton Growth Securities Fund
811-08651
2. VUL I Lincoln Life & Annuity CLASS 1 SHARES:
Yes Flexible Premium Variable Xxxxxxxxx Foreign Securities Fund
333-42507 Life Account M Templeton Global Asset Allocation Fund
LN605NY November 24, 1997 Templeton Growth Securities Fund
LN615NY 811-08559
3. Lincoln ChoicePlus Lincoln New York Separate CLASS 2 SHARES:
Variable Annuity Account N for Variable Franklin Small Cap Fund
Yes Annuities
333-93875 March 11, 1999 Templeton Growth Securities Fund
AN426NY 811-09763
4. CVUL III LLANY Separate Account S for CLASS 1 SHARES:
Yes Flexible Premium Variable Franklin Small Cap Fund
333-74325 Life Insurance Templeton Growth Securities Fund
LN925 March 2, 1999
811-09257
5. LVUL Lincoln Life & Annuity CLASS 2 SHARES:
Yes Flexible Premium Variable Xxxxxxxxx Foreign Securities Fund
333-42507 Life Account M Templeton Growth Securities Fund
LN660NY November 24, 1997
811-08559
6. Lincoln ChoicePlus Access Lincoln New York Separate CLASS 2 SHARES:
Yes Account N for Variable Franklin Small Cap Fund
333-37982 Annuities
30296NY March 11, 1999 Templeton Growth Securities Fund
811-09763
7. Lincoln ChoicePlus II Lincoln New York Separate CLASS 2 SHARES:
Yes Account N for Variable Franklin Small Cap Fund
333-93875 Annuities Templeton Growth Securities Fund
30070BNYMVA3 March 11, 1999
811-09763
D-1
PRODUCT NAME
REGISTERED Y/N SEPARATE ACCOUNT NAME
1933 ACT #, STATE FORM REGISTRATION DATE
# ID 1940 ACT # CLASSES OF SHARES AND PORTFOLIOS
-------------------------------------------------------------------------------------------------------------
8. Lincoln ChoicePlus II Lincoln New York Separate CLASS 2 SHARES:
Access Account N for Variable Franklin Small Cap Fund
Yes Annuities Templeton Growth Securities Fund
333-37982 March 11, 1999
30070BNYMVA3 811-09763
9. Lincoln ChoicePlus II Lincoln New York Separate CLASS 2 SHARES:
Advance Account N for Variable Franklin Small Cap Fund
Yes Annuities Templeton Growth Securities Fund
333-83718 March 11, 1999
30070BNYMVA3 811-09763
10. VULdb Lincoln Life & Annuity CLASS 2 SHARES:
Yes Flexible Premium Variable Xxxxxxxxx Foreign Securities Fund
333-52194 Life Account M Templeton Growth Securities Fund
LN680 November 24, 1997
LN680-U 811-08559 CLASS 1 SHARES:
Franklin Small Cap Fund
11. VULdb (Elite Series) Lincoln Life & Annuity CLASS 1 SHARES:
Yes Flexible Premium Variable Franklin Small Cap Fund
333-52194 Life Account M Templeton Growth Securities Fund
LN680 November 24, 1997
LN680-U 811-08559
12. Lincoln ChoicePlus II Lincoln New York Separate CLASS 2 SHARES:
Bonus Account N for Variable Franklin Small Cap Fund
Yes Annuities Templeton Growth Securities Fund
333-91182 March 11, 1999
30070BNYMVA3 811-09763
13. VULdb II Lincoln Life & Annuity CLASS 1 SHARES:
Yes Flexible Premium Variable Franklin Small Cap Fund
333-84688 Life Account M Templeton Growth Securities Fund
LN690NY November 24, 1997
811-08559
14. SVUL I (Elite) LLANY Separate Account R for CLASS 1 SHARES:
Yes Flexible Premium Variable Franklin Small Cap Fund
333-46113 Life Insurance Templeton Growth Securities Fund
LN650NY January 29, 1998
811-08651
15. SVUL II (Elite) LLANY Separate Account R for CLASS 1 SHARES:
Yes Flexible Premium Variable Franklin Small Cap Fund
333-33778 Life Insurance Templeton Growth Securities Fund
LN655NY January 29, 1998
811-08651
D-2
PRODUCT NAME
REGISTERED Y/N SEPARATE ACCOUNT NAME
1933 ACT #, STATE FORM REGISTRATION DATE
# ID 1940 ACT # CLASSES OF SHARES AND PORTFOLIOS
-------------------------------------------------------------------------------------------------------------
16. VULcv II (Elite) Lincoln Life & Annuity CLASS 1 SHARES:
Yes Flexible Premium Variable Franklin Small Cap Fund
333-61594 Life Account M Templeton Growth Securities Fund
LN665 November 24, 1997
LN665-U 811-08559
17. VULcv III Lincoln Life & Annuity CLASS 1 SHARES:
Yes Flexible Premium Variable Franklin Small Cap Fund
333-84684 Life Account M Templeton Growth Securities Fund
LN670NY November 24, 1997
811-08559
18. SVUL III LLANY Separate Account R for CLASS 1 SHARES:
Yes Flexible Premium Variable Franklin Small Cap Fund
333-90508 Life Insurance Templeton Growth Securities Fund
LN656NY January 29, 1998
811-08651
19. ChoicePlus Assurance (B Lincoln New York Separate CLASS 2 SHARES:
Share) Account N for Variable Franklin Small Cap Fund
Yes Annuities Templeton Growth Securities Fund
333-93875 March 11, 1999
30070BNYBA 811-09763
20. ChoicePlus Assurance (C Lincoln New York Separate CLASS 2 SHARES:
Share) Account N for Variable Franklin Small Cap Fund
Yes Annuities Templeton Growth Securities Fund
333-37982 March 11, 1999
30070BNYC 811-09763
21. ChoicePlus Assurance (L Lincoln New York Separate CLASS 2 SHARES:
Share) Account N for Variable Franklin Small Cap Fund
Yes Annuities Templeton Growth Securities Fund
333-83718 March 11, 1999
30070BNYAL 811-09763
22. ChoicePlus Assurance Lincoln New York Separate CLASS 2 SHARES:
(Bonus) Account N for Variable Franklin Small Cap Fund
Yes Annuities Templeton Growth Securities Fund
333-91182 March 11, 1999
30070BNYN 811-09763
D-3
SCHEDULE F
RULE 12b-1 PLANS OF THE TRUST
COMPENSATION SCHEDULE
Each Portfolio named below shall pay the following amounts pursuant to the terms
and conditions referenced below under its Class 2 Rule 12b-1 Distribution Plan,
stated as a percentage per year of Class 2's average daily net assets
represented by shares of Class 2.
PORTFOLIO NAME MAXIMUM ANNUAL PAYMENT RATE
-------------- ---------------------------
Franklin Small Cap Fund 0.25%
Xxxxxxxxx Foreign Securities Fund 0.25%
Templeton Growth Securities Fund 0.25%
AGREEMENT PROVISIONS
If the Company, on behalf of any Account, purchases Trust Portfolio shares
("Eligible Shares") which are subject to a Rule 12b-1 plan adopted under the
1940 Act (the "Plan"), the Company may participate in the Plan.
To the extent the Company or its affiliates, agents or designees
(collectively "you") provide any activity or service which is primarily intended
to assist in the promotion, distribution or account servicing of Eligible Shares
("Rule 12b-1 Services") or variable contracts offering Eligible Shares, the
Underwriter, the Trust or their affiliates (collectively, "we") may pay you a
Rule 12b-1 fee. "Rule 12b-1 Services" may include, but are not limited to,
printing of prospectuses and reports used for sales purposes, preparing and
distributing sales literature and related expenses, advertisements, education of
dealers and their representatives, and similar distribution-related expenses,
furnishing personal services to owners of Contracts which may invest in Eligible
Shares ("Contract Owners"), education of Contract Owners, answering routine
inquiries regarding a Portfolio, coordinating responses to Contract Owner
inquiries regarding the Portfolios, maintaining such accounts or providing such
other enhanced services as a Trust Portfolio or Contract may require, or
providing other services eligible for service fees as defined under NASD rules.
Your acceptance of such compensation is your acknowledgment that eligible
services have been rendered. All Rule 12b-1 fees, shall be based on the value of
Eligible Shares owned by the Company on behalf of its Accounts, and shall be
calculated on the basis and at the rates set forth in the Compensation Schedule
stated above. The aggregate annual fees paid pursuant to each Plan shall not
exceed the amounts stated as the "annual maximums" in the Portfolio's
prospectus, unless an increase is approved by shareholders as provided in the
Plan. These maximums shall be a specified percent of the value of a Portfolio's
net assets attributable to Eligible Shares owned by the Company on behalf of its
Accounts (determined in the same manner as the Portfolio uses to compute its net
assets as set forth in its effective Prospectus). The Rule 12b-1 fee will be
paid to you within thirty (30) days after the end of the three-month periods
ending in January, April, July and October.
F-1
You shall furnish us with such information as shall reasonably be requested
by the Trust's Boards of Trustees ("Trustees") with respect to the Rule 12b-1
fees paid to you pursuant to the Plans. We shall furnish to the Trustees, for
their review on a quarterly basis, a written report of the amounts expended
under the Plans and the purposes for which such expenditures were made.
The Plans and provisions of any agreement relating to such Plans must be
approved annually by a vote of the Trustees, including the Trustees who are not
interested persons of the Trust and who have no financial interest in the Plans
or any related agreement ("Disinterested Trustees"). Each Plan may be terminated
at any time by the vote of a majority of the Disinterested Trustees, or by a
vote of a majority of the outstanding shares as provided in the Plan, on sixty
(60) days' written notice, without payment of any penalty. The Plans may also be
terminated by any act that terminates the Underwriting Agreement between the
Underwriter and the Trust, and/or the management or administration agreement
between Franklin Advisers, Inc. and its affiliates and the Trust. Continuation
of the Plans is also conditioned on Disinterested Trustees being ultimately
responsible for selecting and nominating any new Disinterested Trustees. Under
Rule 12b-1, the Trustees have a duty to request and evaluate, and persons who
are party to any agreement related to a Plan have a duty to furnish, such
information as may reasonably be necessary to an informed determination of
whether the Plan or any agreement should be implemented or continued. Under Rule
12b-1, the Trust is permitted to implement or continue Plans or the provisions
of any agreement relating to such Plans from year-to-year only if, based on
certain legal considerations, the Trustees are able to conclude that the Plans
will benefit each affected Trust Portfolio and class. Absent such yearly
determination, the Plans must be terminated as set forth above. In the event of
the termination of the Plans for any reason, the provisions of this Schedule F
relating to the Plans will also terminate. You agree that your selling
agreements with persons or entities through whom you intend to distribute
Contracts will provide that compensation paid to such persons or entities may be
reduced if a Portfolio's Plan is no longer effective or is no longer applicable
to such Portfolio or class of shares available under the Contracts.
Any obligation assumed by the Trust pursuant to this Agreement shall be limited
in all cases to the assets of the Trust and no person shall seek satisfaction
thereof from shareholders of the Trust. You agree to waive payment of any
amounts payable to you by Underwriter under a Plan until such time as the
Underwriter has received such fee from the Trust.
The provisions of the Plans shall control over the provisions of the
Participation Agreement, including this Schedule F, in the event of any
inconsistency.
You agree to provide complete disclosure as required by all applicable statutes,
rules and regulations of all rule 12b-1 fees received from us in the prospectus
of the Contracts.
F-2
SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: Lincoln Life & Annuity Company of New York
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, President
To the Distributor [Name of Distributor]
Address ____________
_____________________
Attention: __________
To the Trust: Franklin Xxxxxxxxx Variable Insurance Products Trust
Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Assistant Vice President
To the Underwriter: Franklin Xxxxxxxxx Distributors, Inc.
Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Vice President
G
AMENDMENT NO. 3 TO PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin Xxxxxxxxx Distributors, Inc.
Lincoln Life & Annuity Company of New York
Lincoln Financial Advisors Corporation
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust"),
Franklin/Xxxxxxxxx Distributors, Inc. (the "Underwriter," and together with the
Trust, "we" or "us") and The Lincoln Life Y Annuity Company of New York ("you"),
and your distributor, on your behalf and on behalf of certain Accounts, have
previously entered into a Participation Agreement dated May 1, 2000 (the
"Agreement"). The parties now desire to amend the Agreement in this amendment
(the "Amendment").
Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect. Unless otherwise indicated, the terms
defined in the Agreement shall have the same meaning in this Amendment.
A M E N D M E N T
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Lincoln Financial Advisors Corporation is hereby added as a party to this
Agreement.
2. Section 2.1.6 of the Agreement is hereby amended to add the following
sentence at the end of the section:
"Without limiting the foregoing, you agree that in recommending to a
Contract owner the purchase, sale or exchange of any subaccount units under
the Contracts, you shall have reasonable grounds, based on representations
from the broker/dealers in their signed agreements with you, for believing
that the recommendation is suitable for such Contract owner."
3. A new Section 2.1.12 is hereby added to the Agreement as follows:
"2.1.12 As covered financial institutions we, only with respect to
Portfolio shareholders, and you each undertake and agree to comply, and to
take full responsibility in complying with any and all applicable laws,
regulations, protocols and other requirements relating to money laundering
including, without limitation, the International Money Laundering Abatement
and Anti-Terrorist Financing Act of 2001 (Title III of the USA PATRIOT
Act)."
1
4. Section 3 of the Agreement is hereby deleted in its entirety and replaced
with the following Section 3:
"3. PURCHASE AND REDEMPTION OF TRUST PORTFOLIO SHARES
3.1 AVAILABILITY OF TRUST PORTFOLIO SHARES
3.1.1 We will make shares of the Portfolios available to the
Accounts for the benefit of the Contracts. The shares will be available for
purchase at the net asset value per share next computed after we (or our
agent, or you as our designee) receive a purchase order, as established in
accordance with the provisions of the then current prospectus of the Trust.
All orders are subject to acceptance by us and by the Portfolio or its
transfer agent, and become effective only upon confirmation by us.
Notwithstanding the foregoing, the Trust's Board of Trustees ("Trustees")
may refuse to sell shares of any Portfolio to any person, or may suspend or
terminate the offering of shares of any Portfolio if such action is
required by law or by regulatory authorities having jurisdiction or if, in
the sole discretion of the Trustees, they deem such action to be in the
best interests of the shareholders of such Portfolio.
3.1.2 Without limiting the other provisions of this Section 3.1,
among other delegations by the Trustees, the Trustees have determined that
there is a significant risk that the Trust and its shareholders may be
adversely affected by investors with short term trading activity and/or
whose purchase and redemption activity follows a market timing pattern as
defined in the prospectus for the Trust, and have authorized the Trust, the
Underwriter and the Trust's transfer agent to adopt procedures and take
other action (including, without limitation, rejecting specific purchase
orders in whole or in part) as they deem necessary to reduce, discourage,
restrict or eliminate such trading and/or market timing activity. You agree
that your purchases and redemptions of Portfolio shares are subject to, and
that you will assist us in implementing, the Market Timing Trading Policy
and Additional Policies (as described in the Trust's prospectus) and the
Trust's restrictions on excessive and/or short term trading activity and/or
purchase and redemption activity that follows a market timing pattern.
3.1.3 We agree that shares of the Trust will be sold only to
life insurance companies which have entered into fund participation
agreements with the Trust ("Participating Insurance Companies") and their
separate accounts or to qualified pension and retirement plans in
accordance with the terms of the Shared Funding Order. No shares of any
Portfolio will be sold to the general public.
3.2 THIS SUBSECTION 3.2 IS NOT USED
3.3 PURCHASE AND REDEMPTION
3.3.1 You are hereby appointed as our designee for the sole
purpose of receiving from Contract owners purchase and exchange orders and
requests for redemption resulting from investment in and payments under the
Contracts that pertain to subaccounts that invest in Portfolios
("Instructions"). "Business Day" shall mean
2
any day on which the New York Stock Exchange is open for trading and on
which the Trust calculates its net asset value pursuant to the rules of the
SEC and its current prospectus. "Close of Trading" shall mean the close of
trading on the New York Stock Exchange, generally 4:00 p.m. New York time.
You represent and warrant that all Instructions transmitted to us for
processing on or as of a given Business Day ("Day 1") shall have been
received in proper form and time stamped by you prior to the Close of
Trading on Day 1. Such Instructions shall receive the share price next
calculated following the Close of Trading on Day 1, provided that we
receive such Instructions from you before 9:30 a.m. New York time on the
next Business Day ("Day 2"). You represent and warrant that Instructions
received in proper form and time stamped by you after the Close of Trading
on Day 1 shall be treated by you and transmitted to us as if received on
Day 2. Such Instructions shall receive the share price next calculated
following the Close of Trading on Day 2. You represent and warrant that you
have, maintain and periodically test, procedures and systems in place
reasonably designed to prevent Instructions received after the Close of
Trading on Day 1 from being executed with Instructions received before the
Close of Trading on Day 1. All Instructions we receive from you after 9:30
a.m. New York time on Day 2 shall be processed by us on the following
Business Day and shall receive the share price next calculated following
the Close of Trading on Day 2.
3.3.2 We shall calculate the net asset value per share of each
Portfolio on each Business Day, and shall communicate these net asset
values to you or your designated agent on a daily basis as soon as
reasonably practical after the calculation is completed (normally by 6:30
p.m. New York time).
3.3.3 You shall submit payment for the purchase of shares of a
Portfolio on behalf of an Account in federal funds transmitted by wire to
the Trust or to its designated custodian, which must receive such wires no
later than the close of the Reserve Bank, which is 6:00 p.m. New York time,
on the Business Day following the Business Day as of which such purchases
orders are made.
3.3.4 We will redeem any full or fractional shares of any
Portfolio, when requested by you on behalf of an Account, at the net asset
value next computed after receipt by us (or our agent or you as our
designee) of the request for redemption, as established in accordance with
the provisions of the then current prospectus of the Trust. We shall make
payment for such shares in the manner we establish from time to time, but
in no event shall payment be delayed for a greater period than is permitted
by the 1940 Act. Payments for the purchase or redemption of shares by you
may be netted against one another on any Business Day for the purpose of
determining the amount of any wire transfer on that Business Day.
3.3.5 Issuance and transfer of the Portfolio shares will be by
book entry only. Stock certificates will not be issued to you or the
Accounts. Portfolio shares purchased from the Trust will be recorded in the
appropriate title for each Account or the appropriate subaccount of each
Account.
3.3.6 We shall furnish, on or before the ex-dividend date,
notice to you of any income dividends or capital gain distributions payable
on the shares of any
3
Portfolio. You hereby elect to receive all such income dividends and
capital gain distributions as are payable on shares of a Portfolio in
additional shares of that Portfolio, and you reserve the right to change
this election in the future. We will notify you of the number of shares so
issued as payment of such dividends and distributions.
3.3.7 Each party to this Agreement agrees that, in the event of
a material error resulting from incorrect information or confirmations, the
parties will seek to comply in all material respects with the provisions of
applicable federal securities laws.
5. A new Section 6.8 is hereby added to the Agreement as follows:
"6.8 You agree that any posting of Portfolio prospectuses on your
website will result in the Portfolio prospectuses: (i) appearing identical
to the hard copy printed version; (ii) being clearly associated with the
particular Contracts in which they are available and posted in close
proximity to the applicable Contract prospectuses; (iii) having no less
prominence than prospectuses of any other underlying funds available under
the Contracts; and (iv) being used in an authorized manner. Notwithstanding
the above, you understand and agree that you are responsible for ensuring
that participation in the Portfolios, and any website posting, or other
use, of the Portfolio prospectuses is in compliance with this Agreement and
applicable state and federal securities and insurance laws and regulations,
including as they relate to paper or electronic use of fund prospectuses.
The format of such presentation, the script and layout for any website that
mentions the Trust, the Underwriter, an Adviser or the Portfolios shall be
routed to us as sales literature or other promotional materials, pursuant
to Section 6 of this Agreement.
In addition, you agree to be solely responsible for maintaining and
updating the Portfolio prospectuses' PDF files (including prospectus
supplements) and removing and/or replacing promptly any outdated
prospectuses, as necessary, ensuring that any accompanying instructions by
us, for using or stopping use are followed. You agree to designate and make
available to us a person to act as a single point of communication contact
for these purposes. We are not responsible for any additional costs or
additional liabilities that may be incurred as a result of your election to
place the Portfolio prospectuses on your website. We reserve the right to
revoke this authorization, at any time and for any reason, although we may
instead make our authorization subject to new procedures."
4
6. A new Section 6.9 is hereby added to the Agreement as follows:
"6.9 Each of your and your distributor's registered representatives,
agents, independent contractors and employees, as applicable, will have
access to our websites at xxxxxxxxxxxxxxxxx.xxx, and such other URLs
through which we may permit you to conduct business concerning the
Portfolios from time to time (referred to collectively as the "Site") as
provided herein: (i) upon registration by such individual on a Site; (ii)
if you cause a Site Access Request Form (an "Access Form") to be signed by
your authorized supervisory personnel and submitted to us, as a Schedule
to, and legally a part of, this Agreement; or (iii) if you provide such
individual with the necessary access codes or other information necessary
to access the Site through any generic or firm-wide authorization we may
grant you from time to time. Upon receipt by us of a completed registration
submitted by an individual through the Site or a signed Access Form
referencing such individual, we shall be entitled to rely upon the
representations contained therein as if you had made them directly
hereunder and we will issue a user identification, express number and/or
password (collectively, "Access Code"). Any person to whom we issue an
Access Code or to whom you provide the necessary Access Codes or other
information necessary to access the Site through any generic or firm-wide
authorization we may grant you from time to time shall be an "Authorized
User."
We shall be entitled to assume that such person validly represents you
and that all instructions received from such person are authorized, in
which case such person will have access to the Site, including all services
and information to which you are authorized to access on the Site. All
inquiries and actions initiated by you (including your Authorized Users)
are your responsibility, are at your risk and are subject to our review and
approval (which could cause a delay in processing). You agree that we do
not have a duty to question information or instructions you (including
Authorized Users) give to us under this Agreement, and that we are entitled
to treat as authorized, and act upon, any such instructions and information
you submit to us. You agree to take all reasonable measures to prevent any
individual other than an Authorized User from obtaining access to the Site.
You agree to inform us if you wish to restrict or revoke the access of any
individual Access Code. If you become aware of any loss or theft or
unauthorized use of any Access Code, you agree to contact us immediately.
You also agree to monitor your (including Authorized Users') use of the
Site to ensure the terms of this Agreement are followed. You also agree
that you will comply with all policies and agreements concerning Site
usage, including without limitation the Terms of Use Agreement(s) posted on
the Site ("Site Terms"), as may be revised and reposted on the Site from
time to time, and those Site Terms (as in effect from time to time) are a
part of this Agreement. Your duties under this section are considered
"services" required under the terms of this Agreement. You acknowledge that
the Site is transmitted over the Internet on a reasonable efforts basis and
we do not warrant or guarantee their accuracy, timeliness, completeness,
reliability or non-infringement. Moreover, you acknowledge that the Site is
provided for informational purposes only, and is not intended to comply
with any requirements established by any regulatory or governmental
agency."
5
7. A new paragraph is added at the end of Section 10.8 of the Agreement as
follows:
"Each party to this Agreement agrees to limit the disclosure of nonpublic
personal information of Contract owners consistent with its policies on
privacy with respect to such information and Regulation S-P of the SEC.
Each party hereby agrees that it will comply with all applicable
requirements under the regulations implementing Title V of the
Xxxxx-Xxxxx-Xxxxxx Act and any other applicable federal and state consumer
privacy acts, rules and regulations. Each party further represents that it
has in place, and agrees that it will maintain, information security
policies and procedures for protecting nonpublic personal customer
information adequate to conform to applicable legal requirements."
8. Schedules A, C, D, F and G of the Agreement are hereby deleted in their
entirety and replaced with the Schedules A, C, D, F and G attached hereto,
respectively.
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
This Amendment is executed effective as of May 1, 2003.
FRANKLIN XXXXXXXXX VARIABLE INSURANCE LINCOLN LIFE & ANNUITY COMPANY OF NEW
PRODUCTS TRUST YORK
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Rise X. X. Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Rise X. X. Xxxxxx
Title: Assistant Vice President Title: Second Vice President
FRANKLIN XXXXXXXXX DISTRIBUTORS, INC. LINCOLN FINANCIAL ADVISORS
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxx
-------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxx
Title: Vice President Title: Vice President
6
SCHEDULE A
THE COMPANY AND ITS DISTRIBUTOR
THE COMPANY
Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx, Xxxx 0000
Xxxxxxxx, XX 00000
A life insurance company incorporated in the State of New York
ITS DISTRIBUTOR
Lincoln Financial Advisors Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
A corporation organized under the laws of state of Indiana
B
SCHEDULE C
AVAILABLE PORTFOLIOS AND CLASSES OF SHARES OF THE TRUST; INVESTMENT ADVISERS
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS
TRUST INVESTMENT ADVISER
Franklin Small Cap Fund, Classes 1 and 2 Franklin Advisers, Inc.
Templeton Foreign Securities Fund, Classes 1 and 2 Xxxxxxxxx Investment Counsel,
LLC
Templeton Global Asset Allocation Fund, Class 1 Xxxxxxxxx Investment Counsel,
LLC
Templeton Growth Securities Fund, Classes 1 and 2 Xxxxxxxxx Global Advisors Ltd.
C
SCHEDULE D
CONTRACTS OF THE COMPANY
PRODUCT NAME
REGISTERED Y/N SEPARATE ACCOUNT NAME
1933 ACT #, STATE FORM REGISTRATION DATE CLASSES OF SHARES AND
# COMPANY NAME ID 1940 ACT # PORTFOLIOS
----------------------------------------------------------------------------------------------------------------------------------
1. Lincoln Life & SVUL I LLANY Separate Account R for CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Xxxxxxxxx Foreign Securities Fund
New York 333-46113 Life Insurance Templeton Global Asset
LN650NY January 29, 1998 Allocation Fund
811-08651 Templeton Growth Securities Fund
2. Lincoln Life & VUL I Lincoln Life & Annuity CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Xxxxxxxxx Foreign Securities Fund
New York 333-42507 Life Account M Templeton Global Asset Allocation
LN605NY November 24, 1997 Fund
LN615NY 811-08559 Templeton Growth Securities Fund
3. Lincoln Life & Lincoln ChoicePlus Variable Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Annuity for Variable Annuities Franklin Small Cap Fund
New York Yes March 11, 1999
333-93875 811-09763 Xxxxxxxxx Growth Securities Fund
AN426NY
4. Lincoln Life & CVUL III LLANY Separate Account S CLASS 1 SHARES:
Annuity Company of Yes for Flexible Premium Franklin Small Cap Fund
New York 333-74325 Variable Life Insurance Xxxxxxxxx Growth Securities Fund
LN925 March 2, 1999
811-09257
5. Lincoln Life & LVUL Lincoln Life & Annuity CLASS 2 SHARES:
Annuity Company of Yes Flexible Premium Variable Xxxxxxxxx Foreign Securities Fund
New York 333-42507 Life Account M Xxxxxxxxx Growth Securities Fund
LN660NY November 24, 1997
811-08559
6. Lincoln Life & Lincoln ChoicePlus Access Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Yes for Variable Annuities Franklin Small Cap Fund
New York 333-37982 March 11, 1999
30296NY 811-09763 Xxxxxxxxx Growth Securities Fund
7. Lincoln Life & Lincoln ChoicePlus II Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Yes for Variable Annuities Franklin Small Cap Fund
New York 333-93875 March 11, 1999 Xxxxxxxxx Growth Securities Fund
30070BNYMVA3 811-09763
D-1
PRODUCT NAME
REGISTERED Y/N SEPARATE ACCOUNT NAME
1933 ACT #, STATE FORM REGISTRATION DATE CLASSES OF SHARES AND
# COMPANY NAME ID 1940 ACT # PORTFOLIOS
----------------------------------------------------------------------------------------------------------------------------------
8. Lincoln Life & Lincoln ChoicePlus II Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Access for Variable Annuities Franklin Small Cap Fund
New York Yes March 11, 1999 Xxxxxxxxx Growth Securities Fund
333-37982 811-09763
30070BNYMVA3
9. Lincoln Life & Lincoln ChoicePlus II Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Advance for Variable Annuities Franklin Small Cap Fund
New York Yes March 11, 1999 Xxxxxxxxx Growth Securities Fund
333-83718 811-09763
30070BNYMVA3
10. Lincoln Life & VULdb Lincoln Life & Annuity CLASS 2 SHARES:
Annuity Company of Yes Flexible Premium Variable Xxxxxxxxx Foreign Securities Fund
New York 333-52194 Life Account M Xxxxxxxxx Growth Securities Fund
LN680 November 24, 1997
LN680-U 811-08559 CLASS 1 SHARES:
Franklin Small Cap Fund
11. Lincoln Life & VULdb (Elite Series) Lincoln Life & Annuity CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Franklin Small Cap Fund
New York 333-52194 Life Account M Xxxxxxxxx Growth Securities Fund
LN680 November 24, 1997
LN680-U 811-08559
12. Lincoln Life & Lincoln ChoicePlus II Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Bonus for Variable Annuities Franklin Small Cap Fund
New York Yes March 11, 1999 Xxxxxxxxx Growth Securities Fund
333-91182 811-09763
30070BNYMVA3
13. Lincoln Life & VULdb II Lincoln Life & Annuity CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Franklin Small Cap Fund
New York 333-84688 Life Account M Xxxxxxxxx Growth Securities Fund
LN690NY November 24, 1997
811-08559
14. Lincoln Life & SVUL I (Elite) LLANY Separate Account R for CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Franklin Small Cap Fund
New York 333-46113 Life Insurance Xxxxxxxxx Growth Securities Fund
LN650NY January 29, 1998
811-08651
15. Lincoln Life & SVUL II (Elite) LLANY Separate Account R for CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Franklin Small Cap Fund
New York 333-33778 Life Insurance Xxxxxxxxx Growth Securities Fund
LN655NY January 29, 1998
811-08651
D-2
PRODUCT NAME
REGISTERED Y/N SEPARATE ACCOUNT NAME
1933 ACT #, STATE FORM REGISTRATION DATE CLASSES OF SHARES AND
# COMPANY NAME ID 1940 ACT # PORTFOLIOS
----------------------------------------------------------------------------------------------------------------------------------
16. Lincoln Life & VULcv II (Elite) Lincoln Life & Annuity CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Franklin Small Cap Fund
New York 333-61594 Life Account M Xxxxxxxxx Growth Securities Fund
LN665 November 24, 1997
LN665-U 811-08559
17. Lincoln Life & VULcv III Lincoln Life & Annuity CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Franklin Small Cap Fund
New York 333-84684 Life Account M Xxxxxxxxx Growth Securities Fund
LN670NY November 24, 1997
811-08559
18. Lincoln Life & SVUL III LLANY Separate Account R CLASS 1 SHARES:
Annuity Company of Yes for Flexible Premium Franklin Small Cap Fund
New York 333-90508 Variable Life Insurance Xxxxxxxxx Growth Securities Fund
LN656NY January 29, 1998
811-08651
19. Lincoln Life & ChoicePlus Assurance (B Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Share) for Variable Annuities Franklin Small Cap Fund
New York Yes March 11, 1999 Xxxxxxxxx Growth Securities Fund
333-93875 811-09763
30070BNYBA
20. Lincoln Life & ChoicePlus Assurance (C Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Share) for Variable Annuities Franklin Small Cap Fund
New York Yes March 11, 1999 Xxxxxxxxx Growth Securities Fund
333-37982 811-09763
30070BNYC
21. Lincoln Life & ChoicePlus Assurance (L Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Share) for Variable Annuities Franklin Small Cap Fund
New York Yes March 11, 1999 Xxxxxxxxx Growth Securities Fund
333-83718 811-09763
30070BNYAL
22. Lincoln Life & ChoicePlus Assurance (Bonus) Lincoln New York Account N CLASS 2 SHARES:
Annuity Company of Yes for Variable Annuities Franklin Small Cap Fund
New York 333-91182 March 11, 1999 Xxxxxxxxx Growth Securities Fund
30070BNYN 811-09763
23. Lincoln Life & Momentum VUL(ONE) Lincoln Life & Annuity CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Franklin Small Cap Fund
New York 333-115839 Life Account M Xxxxxxxxx Growth Securities Fund
November 24, 1997
811-08559
D-3
PRODUCT NAME
REGISTERED Y/N SEPARATE ACCOUNT NAME
1933 ACT #, STATE FORM REGISTRATION DATE CLASSES OF SHARES AND
# COMPANY NAME ID 1940 ACT # PORTFOLIOS
----------------------------------------------------------------------------------------------------------------------------------
24. Lincoln Life & VUL(ONE) Lincoln Life & Annuity CLASS 1 SHARES:
Annuity Company of Yes Flexible Premium Variable Franklin Small Cap Fund
New York 333-112972 Life Account M
November 24, 1997 CLASS 2 SHARES:
811-08559 Xxxxxxxxx Growth Securities Fund
25. Lincoln Life & Director LNY Separate Account 401 CLASS 2 SHARES:
Annuity Company of No for Group Annuities Franklin Small Cap Fund
New York N/A April 20, 2004 Xxxxxxxxx Growth Securities Fund
N/A
D-4
SCHEDULE F
RULE 12b-1 PLANS OF THE TRUST
COMPENSATION SCHEDULE
Each Portfolio named below shall pay the following amounts pursuant to the terms
and conditions referenced below under its Class 2 Rule 12b-1 Distribution Plan,
stated as a percentage per year of Class 2's average daily net assets
represented by shares of Class 2.
PORTFOLIO NAME MAXIMUM ANNUAL PAYMENT RATE
Franklin Small Cap Fund 0.25%
Xxxxxxxxx Foreign Securities Fund 0.25%
Xxxxxxxxx Growth Securities Fund 0.25%
AGREEMENT PROVISIONS
If the Company, on behalf of any Account, purchases Trust Portfolio shares
("Eligible Shares") which are subject to a Rule 12b-1 plan adopted under the
1940 Act (the "Plan"), the Company may participate in the Plan.
To the extent the Company or its affiliates, agents or designees
(collectively "you") provide any activity or service which is primarily intended
to assist in the promotion, distribution or account servicing of Eligible Shares
("Rule 12b-1 Services") or variable contracts offering Eligible Shares, the
Underwriter, the Trust or their affiliates (collectively, "we") may pay you a
Rule 12b-1 fee. "Rule 12b-1 Services" may include, but are not limited to,
printing of prospectuses and reports used for sales purposes, preparing and
distributing sales literature and related expenses, advertisements, education of
dealers and their representatives, and similar distribution-related expenses,
furnishing personal services to owners of Contracts which may invest in Eligible
Shares ("Contract Owners"), education of Contract Owners, answering routine
inquiries regarding a Portfolio, coordinating responses to Contract Owner
inquiries regarding the Portfolios, maintaining such accounts or providing such
other enhanced services as a Trust Portfolio or Contract may require, or
providing other services eligible for service fees as defined under NASD rules.
Your acceptance of such compensation is your acknowledgment that eligible
services have been rendered. All Rule 12b-1 fees, shall be based on the value of
Eligible Shares owned by the Company on behalf of its Accounts, and shall be
calculated on the basis and at the rates set forth in the Compensation Schedule
stated above. The aggregate annual fees paid pursuant to each Plan shall not
exceed the amounts stated as the "annual maximums" in the Portfolio's
prospectus, unless an increase is approved by shareholders as provided in the
Plan. These maximums shall be a specified percent of the value of a Portfolio's
net assets attributable to Eligible Shares owned by the Company on behalf of its
Accounts (determined in the same manner as the Portfolio uses to compute its net
assets as set forth in its effective Prospectus). The Rule 12b-1 fee will be
paid to you within thirty (30) days after the end of the three-month periods
ending in January, April, July and October.
You shall furnish us with such information as shall reasonably be requested
by the Trust's Boards of Trustees ("Trustees") with respect to the Rule 12b-1
fees paid to you pursuant to the Plans. We shall furnish to the Trustees, for
their review on a quarterly basis, a written report of the amounts expended
under the Plans and the purposes for which such expenditures were made.
The Plans and provisions of any agreement relating to such Plans must be
approved annually by a vote of the Trustees, including the Trustees who are not
interested persons of the Trust and who have no financial interest in the Plans
or any related agreement ("Disinterested Trustees"). Each Plan may be terminated
at any time by the vote of a majority of the Disinterested Trustees, or by a
vote of a majority of the outstanding shares as provided in the Plan, on sixty
(60) days' written notice, without payment of any penalty. The Plans may also be
terminated by any act that terminates the Underwriting Agreement between the
Underwriter and the Trust, and/or the management or administration agreement
between Franklin Advisers, Inc. and its affiliates and the Trust. Continuation
of the Plans is also conditioned on Disinterested Trustees being ultimately
responsible for selecting and nominating any new Disinterested Trustees. Under
Rule 12b-1, the Trustees have a duty to request and evaluate, and persons who
are party to any agreement related to a Plan have a duty to furnish, such
information as may reasonably be necessary to an informed determination of
whether the Plan or any agreement should be implemented or continued. Under Rule
12b-1, the Trust is permitted to implement or continue Plans or the provisions
of any agreement relating to such Plans from year-to-year only if, based on
certain legal considerations, the Trustees are able to conclude that the Plans
will benefit each affected Trust Portfolio and class. Absent such yearly
determination, the Plans must be terminated as set forth above. In the event of
the termination of the Plans for any reason, the provisions of this Schedule F
relating to the Plans will also terminate. You agree that your selling
agreements with persons or entities through whom you intend to distribute
Contracts will provide that compensation paid to such persons or entities may be
reduced if a Portfolio's Plan is no longer effective or is no longer applicable
to such Portfolio or class of shares available under the Contracts.
Any obligation assumed by the Trust pursuant to this Agreement shall be limited
in all cases to the assets of the Trust and no person shall seek satisfaction
thereof from shareholders of the Trust. You agree to waive payment of any
amounts payable to you by Underwriter under a Plan until such time as the
Underwriter has received such fee from the Trust.
The provisions of the Plans shall control over the provisions of the
Participation Agreement, including this Schedule F, in the event of any
inconsistency.
You agree to provide complete disclosure as required by all applicable statutes,
rules and regulations of all rule 12b-1 fees received from us in the prospectus
of the Contracts.
SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx, Xxxx 0000
Xxxxxxxx, XX 00000
Attention: Rise X. X. Xxxxxx, Second Vice President
To the Distributor Lincoln Financial Advisors Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxx X. Xxxx, Vice President
To the Trust: Franklin Xxxxxxxxx Variable Insurance Products Trust
Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Assistant Vice President
With a copy to: Xxxxxx Xxxxxxx, General Counsel
To the Underwriter: Franklin Xxxxxxxxx Distributors, Inc.
Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Vice President
With a copy to: Xxxxxx Xxxxxxx, General Counsel
