DISTRIBUTION SERVICES AGREEMENT
This
Distribution Services Agreement
(“Agreement”) is made as of June 5, 2007 by and between Lincoln Financial
Distributors, Inc. (the “Distributor”), and
Nationwide Investment Services Corp. (the
“Broker-Dealer”), an Oklahoma corporation.
Recitals
WHEREAS,
the Distributor has been
appointed and currently serves as the principal underwriter of Lincoln Variable
Insurance Products Trust (the “Trust”), a Delaware statutory trust, and each of
its series listed in Schedule A (the “Funds”), pursuant to an underwriting
agreement by and between Distributor and the Trust;
WHEREAS,
each Fund currently offers
Standard Class shares and Service Class shares and has adopted a Service Class
Distribution and Service Plan (the “12b-1 Plan”) applicable to its Service Class
shares; and
WHEREAS,
the Broker-Dealer serves as
the principal underwriter of certain variable annuity and/or variable life
insurance contracts issued by an affiliated insurance company (the “Contracts”),
and Broker-Dealer desires to provide certain services in
connection with the Contracts that offer Service Class shares of the Funds
as
underlying investment options of the Contracts.
Agreement
1. Services
of the
Broker-Dealer
a. The
Broker-Dealer shall, as
agreed upon by the parties from time to time, provide certain services or incur
certain expenses relating to the Service Class shares of the Funds for
activities primarily intended to sell Contracts offering Service Class
shares. These services or expenses are the printing and mailing of
Fund prospectuses and reports used for sales purposes and the payment of service
fees as defined under NASD rules.
b. The
Broker-Dealer may, at its expense,
subcontract with any entity or person concerning the provision of the services
contemplated hereunder; provided, however, that the Broker-Dealer shall not
be
relieved of any of its obligations under this Agreement by the appointment
of
such subcontractor and provided further, that the Broker-Dealer shall be
responsible, to the extent provided in Section 5 hereof, for all acts of such
subcontractor as if such acts were its own.
c. The
Broker-Dealer will furnish to the
Trust or its designee such information as the Trust or its designee may
reasonably request, and will otherwise cooperate with the Trust in preparation
of reports to the Trust’s Board of Trustees concerning this Agreement, as well
as any other reports or filings that may be required by law.
2. Fees
In
consideration of the services provided by Broker-Dealer with respect to each
Fund’s Service Class shares pursuant to the 12b-1 Plan, the Distributor agrees,
to the extent legally permissible, to: (1) pay to the Broker-Dealer quarterly
in
arrears a fee (the “Fee”) which shall accrue daily in an amount equal to the
product of (A) the daily equivalent of [X.XX%] per annum multiplied by (B)
the
net asset value of the Service Class shares outstanding on such
day. Such Fee shall be paid quarterly (on a calendar year basis) in
arrears within thirty (30) days of the end of the quarter; provided, however,
that Broker-Dealer shall waive payment of the Fee until the Distributor is
in
receipt of the Fee. Documentation to support the calculation of this
Fee will be provided to the Broker-Dealer along with the
payment. The rate of the Fee with respect to any Fund may be
prospectively increased or decreased by the Trust, in its sole discretion,
at
any time upon notice to the Broker-Dealer.
3. Nature
of Services
The
Distributor and the Broker-Dealer agree that the Distributor’s payments pursuant
to this Agreement are only for the services listed in Section 1(a) herein and
do
not constitute payment in any manner for investment advisory services or for
administrative services. The Distributor and the
Broker-Dealer agree that this Agreement does not preclude
the Trust or Distributor from contracting separately with the
Broker-Dealer to provide other services to the Trust or
Distributor.
4. Representations
and
Warranties
a. The
Broker-Dealer agrees to comply with
requirements of all applicable laws, including federal and state securities
laws, the rules and regulations of the SEC in connection with its performance
under this Agreement.
b. The
Broker-Dealer agrees not to act as
dealer for its own account; the Broker-Dealer shall act solely for, upon the
specific or pre-authorized instructions of, and for the account of, Contract
owners. For all purposes of this Agreement, the Broker-Dealer will be
deemed to be an independent contractor, and will have no authority to act as
agent for the Trust or any dealer of the shares of the Funds in any matter
or in
any respect. Broker-Dealer shall not make any representations
concerning the Trust or a Fund’s shares except those representations contained
in the Fund’s then-current prospectus and statement of additional information
and in such printed information as the Trust may subsequently prepare, unless
otherwise agreed to by the parties to this Agreement or pursuant to the
Participation Agreement.
5. Exculpation
and
Indemnification
a. The
Broker-Dealer agrees that under no
circumstances shall the Trust or the Distributor be liable to the Broker-Dealer
or any other person under this Agreement as a result of any action by the SEC
affecting the operation or continuation of the 12b-1 Plan.
b. The
Distributor shall not be liable to
the Broker-Dealer, and the Broker-Dealer shall not be liable to the Distributor,
for acts or failures committed pursuant to its performance of the Agreement
except for acts or failures which constitute lack of good faith or gross
negligence and for obligations expressly assumed by either party
hereunder. Nothing contained in this Agreement is intended to operate
as a waiver by the Distributor or by the Broker-Dealer of compliance with any
applicable law, rule, or regulation.
c. The
Broker-Dealer will indemnify the
Trust and Distributor and hold each harmless from any claims or assertions
relating to the lawfulness of the Broker-Dealer’s participation in this
Agreement and the transactions contemplated hereby or relating to any activities
of any persons or entities affiliated with the Broker-Dealer performed in
connection with the discharge of its responsibilities under this
Agreement. If any such claims are asserted, the Trust and the
Distributor shall each have the right to manage its own defense, including
the
selection and engagement of legal counsel of its choosing, and all costs of
such
defense shall be borne by the Broker-Dealer.
6. Termination
a. Unless
sooner terminated with respect
to any Fund, this Agreement will continue with respect to a Fund only if the
continuance of a form of this Agreement is specifically approved at least
annually by the vote of a majority of the members of the Trust’s Board of
Trustees who are not “interested persons” (as such term is defined in the
Investment Broker-Dealer Act of 1940 (the “1940 Act”)) who have no direct or
indirect financial interest in the 12b-1 Plan relating to such Fund or any
agreement relating to such 12b-1 Plan, including this Agreement, (the
“Independent Trustees”) cast in person at a meeting called for the purpose of
voting on such approval. This Agreement may be terminated with
respect to any Fund at any time without penalty by the vote of a majority of
the
Independent Trustees, or by a vote of a majority of the Service Class shares
of
such Fund on 60 days’ written notice.
b. This
Agreement will automatically
terminate with respect to a Fund in the event of its assignment (as such term
is
defined in the 0000 Xxx) with respect to such Fund. This Agreement
may be terminated with respect to any Fund by the Trust, the Distributor or
the
Broker-Dealer, without penalty, upon 60 days’ prior written notice to the other
party.
7. Miscellaneous
a. This
Agreement may only be amended by
an instrument in writing signed by the parties to the Agreement; provided the
Trust may amend the amounts of the Fee in accordance with Section 2 of this
Agreement. All notices and other communications to either party will
be duly given if in writing to the other party.
b. The
Distributor may enter into other
similar agreements for the provision of the services contemplated hereunder
with
any other person or persons without the Broker-Dealer’s consent.
c. The
invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability
of
any other term or provision hereof. This Agreement shall be governed
by and construed in accordance with the laws (other than the conflict of laws
rules) of the State of Connecticut and shall bind and inure to the benefit
of
the parties hereto and their respective successors and assigns.
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by their officers designated below.
LINCOLN
FINANCIAL DISTRIBUTORS, INC.
By:
Name:
Title:
|
NATIONWIDE
INVESTMENT SERVICES CORP.
By:
Name: Xxxxx
X. Xxxxxx
Title: Product
Officer
|
Address
for Notices:
Lincoln
Financial Distributors, Inc.
Metro
Center, 000 Xxxxxx Xxxxxx
Xxxxxxxx,
Xx. 00000
Attn: Xxxx
Xxxxxxx
|
Address
for Notices:
Nationwide
Investment Services Corp.
Xxx
Xxxxxxxxxx Xxxxx
Xxxxxxxx,
Xxxx 00000
Attn: Xxxxx
X. Xxxxxx
|
00000000.0.XXXXXXXX
Schedule
A
Fund
|
LVIP
Baron Growth Opportunities Fund
|