Exhibit 23(h)(3)
SERVICE XXXX LICENSE AGREEMENT
This AGREEMENT is effective on February 26, 2009 (the "Effective Date"), by
and between DELAWARE MANAGEMENT HOLDINGS, INC., a company organized under the
laws of the State of Delaware, whose principal place of business is located in
Philadelphia, Pennsylvania (the "Licensor"), and LINCOLN INVESTMENT ADVISORS
CORPORATION, a company organized and existing under the laws of the State of
Tennessee, whose principal place of business is located in Fort Xxxxx, Indiana
(the "Licensee").
WHEREAS, the Licensor owns all right, title, and interest in and to the
service marks identified in the attached Schedule, each of which is federally
registered with the United States Patent and Trademark Office (the
"Registrations");
WHEREAS, the Licensee is the investment adviser for Lincoln mutual funds,
each a series of the Lincoln Variable Insurance Products Trust ("LVIP"), that
provide investment options under variable annuities and variable life insurance
products;
WHEREAS, Delaware Management Company is the sub-adviser for several of the
funds; and
WHEREAS, the Licensee desires to use the designations LVIP Delaware
Foundation(R) Aggressive Allocation Fund, LVIP Delaware Foundation(R) Moderate
Allocation Fund, and LVIP Delaware Foundation(R) Conservative Allocation Fund
as the names for three new funds (collectively, the "Funds") which are series
of LVIP throughout the United States (the "Territory");
WHEREAS, the names of the Funds contain the registered service xxxx
"Foundation" and the other common law (unregistered) service xxxx owned by the
Licensor "Delaware," and Licensee desires to use the registered service xxxx
"Foundation Funds" when referring to the three Funds collectively (the
registered and unregistered service marks shall hereinafter be referred to as
the "Licensed Designations");
NOW, THEREFORE, in consideration of the mutual covenants of the parities and
the sum of Ten Dollars ($10) paid by the Licensee to the Licensor, the receipt
of which is acknowledged by the Licensor, the parties agree as follows.
1. License. The Licensor grants to the Licensee the right to use under the
common law and under the auspices and privileges provided by the Registrations
during the term of this Agreement, and the Licensee undertakes to use, the
Licensed Designations in the Territory in connection with the rendition of the
Licensee's mutual fund investment services (these permitted services referred
to as the "Services").
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2. Quality of Services. The Licensor and the Licensee acknowledge the legal
obligation placed upon the Licensor to control closely the use of its marks by
the Licensee. Therefore, the Licensee shall use the Licensed Designations only
with the Services rendered by or for the Licensee in accordance with the
guidance and directions furnished to the Licensee by the Licensor, or its
representatives or agents, from time to time, if any, but always the quality of
the Services shall be satisfactory to the Licensor or as specified by the
Licensor. The Licensor shall be the sole judge of whether or not the Licensee
has met or is meeting the standards of quality so established.
3. Inspection. The Licensee will permit duly authorized representatives of
the Licensor to inspect the premises of the Licensee using the Licensed
Designations at all reasonable times, for the purpose of ascertaining or
determining compliance with Paragraphs 1 and 2 of this Agreement.
4. Use of Licensed Designations. The Licensee shall provide the Licensor
with samples of all literature, brochures, signs, and advertising material
prepared by the Licensee that contain the Licensed Designations or refer to any
of the Funds. The Licensee shall obtain the approval of the Licensor with
respect to all such literature, brochures, signs and advertising material
bearing the Licensed Designations before the use of such material; provided,
however, failure by the Licensor to respond within ten (10) calendar days to
the Licensee shall relieve the Licensee from the obligation to obtain the prior
written permission of the Licensor. When using the Licensed Designations under
this Agreement, the Licensee undertakes to comply substantially with all laws
pertaining to service marks in force at any time in the Territory, including
marking requirements.
5. Extent of License. The right granted in Paragraph 1 of this Agreement
shall be nonexclusive and shall not be transferable without the Licensor's
prior written consent, and the Licensor shall have the right to license its
Registrations and other service marks to any other designee in the Territory.
The license granted in this Agreement shall not be assignable or transferable
in any manner whatsoever, nor shall the Licensee have the right to grant any
sublicenses, except by prior written consent of the Licensor.
6. Warranty. The Licensor warrants that it owns or has the right to license
the Licensed Designations hereunder and that the Licensee's use of the Licensed
Designations, as permitted by this Agreement, shall not violate any trademark
or other intellectual property rights of any third party.
7. Indemnity. The Licensor assumes no liability to the Licensee or to third
parties with respect to the performance characteristics of the Services
rendered by the Licensee under the Licensed Designations, and the Licensee
shall indemnify the Licensor against losses incurred to claims of third parties
against the Licensor involving sale of the Licensee's Services.
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Licensor shall defend, indemnify, save and hold harmless the Licensee and
its affiliates and their partners, officers, employees, agents, independent
contractors and representatives from and against any and all costs, losses,
liabilities, obligations, damages, claims, demands and expenses (whether or not
arising out of third-party claims), including interest, penalties, costs of
mitigation, reasonable attorneys' fees and all amounts paid in investigation,
defense or settlement of any of the foregoing, incurred in connection with,
arising out of, resulting from or incident to any claim by a third party that
the Licensed Designations violate such third party's trade xxxx or service xxxx
rights.
8. Termination.
a. Except as otherwise provided in this Agreement, the Agreement shall
remain in full force and effect, but is terminable at the will of the Licensor
upon not less than sixty (60) days written notice to the Licensee.
b. If the Licensee makes any assignment of assets or business for the
benefit of creditors, or a trustee or receiver is appointed to conduct its
business or affairs, or it is adjudged in any legal proceeding to be either in
voluntary or involuntary bankruptcy, then the rights granted in this Agreement
shall automatically and immediately cease and terminate without prior notice or
legal action by the Licensor.
c. This Agreement shall automatically and immediately cease and terminate
without prior notice or legal action by the Licensor in the event that Delaware
Management Company ceases to be the sub-advisor for the Funds.
9. Ownership of Registrations. The Licensee and all parties to this
Agreement acknowledge the Licensor's exclusive right, title, and interest in
and to the Registrations, and any other registrations that have issued or may
issue on the Licensed Designations, and will not at any time do or cause to be
done any act or thing contesting or in any way impairing or tending to impair
the entire or any part of such right, title, and interest. In connection with
the use of the Licensed Designations, neither the Licensee nor any other party
to this Agreement shall in any manner represent that he, she, or it has any
ownership in the Licensed Designations or any registrations that might issue
for the Licensed Designations, or the Registrations, and all parties
acknowledge that use of the Licensed Designations shall inure to the benefit of
the Licensor.
10. Licensor acknowledges that it has no right, title or interest in and to
the names or service marks of "LVIP" and "Lincoln Variable Insurance Products
Trust."
11. On termination of this Agreement in any manner, Licensee shall not
produce additional Licensee materials containing the Licensed Designations.
However, the Licensee shall not be required to destroy any Licensee materials
already produced
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containing all or part of the Licensed Designations and may continue to use
such Licensee materials for two (2) quarters following expiration or
termination of this Agreement. Additionally, Licensee will be entitled to
retain, for archival purposes, paper copies of all Licensee materials
containing the Licensed Designations.
12. Notices. Any notices required or permitted to be given under this
Agreement shall be deemed sufficiently given if mailed by registered mail,
postage prepaid, addressed to the party to be notified at its address shown
below, or at such other address as may be furnished in writing to the notifying
party.
DELAWARE MANAGEMENT HOLDINGS, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
ATTN: Xxxxx X. X'Xxxxxx
LINCOLN INVESTMENT ADVISORS CORPORATION
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
ATTN: Legal Counsel
IN WITNESS WHEREOF, the Licensor and the Licensee have executed this
Agreement through the respective parties' duly authorized officers, as of the
Effective Date set forth above.
DELAWARE MANAGEMENT HOLDINGS, INC.: LINCOLN INVESTMENT ADVISORS CORPORATION:
By: /s/ Xxxxxxx X. Xxxxx By: Xxxxxx X. Xxxxx
------------------------------- ------------------------------------
Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxx
Title: President Title: President
Date: February 26, 2009 Date: March 3, 2009
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SCHEDULE OF REGISTERED SERVICE MARKS
Registration Registration
Xxxx Services No. Date
---- ------------------------- ------------ ------------
Foundation................. Fund Investment Services 2,970,834 7/19/05
Foundation Funds........... Fund Investment Services 2,938,413 4/5/05
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