EXHIBIT 28(H)(5)
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") entered into this ____ day of May
2011, with an effective date of __________, 2011 ("Effective Date"), is between
LINCOLN INVESTMENT ADVISERS CORPORATION, a Tennessee corporation (the
"Adviser"), and Wilshire Associates Incorporated ("Wilshire").
WHEREAS, the Adviser desires to appoint Wilshire to provide the services
described herein to the Adviser in respect of certain of the funds within the
Lincoln Variable Insurance Products Trust (the "Trust") as listed hereto on
Schedule A (the "Funds");
WHEREAS, Wilshire is willing to serve the Adviser in such capacity;
NOW THEREFORE, in consideration of the mutual covenants and for the mutual
consideration contained herein, the parties agree as follows:
1. APPOINTMENT OF WILSHIRE.
Wilshire agrees to provide the services described in Section 2 below
subject to the direction and control of the Adviser. Wilshire will be an
independent contractor and will have no authority to act for or represent the
Trust or Adviser in any way.
2. SERVICES TO BE RENDERED BY WILSHIRE TO THE ADVISER.
(a) Wilshire will provide the Adviser the following information and
services on an annual basis, or more frequently as described below or as may be
reasonably requested by the Adviser from time to time:
(i) recommended asset allocation targets for each Fund,
(ii) analysis of each underlying fund available (as communicated by
Adviser to Wilshire) for investment by each Fund in order to
evaluate its merits and understand its risk and return profile,
(iii) recommendations as to the optimal combination of the underlying
funds to assist Adviser in building each Fund,
(iv) provide background on Fund construction methodology,
(v) performance charts and graphs, research publications and text for
Adviser's use with sales representatives and financial Advisers,
(vi) upon reasonable request of the Adviser, attend internal sales
meetings to provide information about Wilshire and its investment
process,
(vii) no less frequently than quarterly, performance attribution and
contribution reports detailing performance relative to benchmark
and written performance commentary discussing fund performance
and a summary of broader capital market events;
(viii) such other information and reports regarding Wilshire's
services to the Adviser that the Adviser may reasonably request;
and
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(ix) upon reasonable request of Adviser, attend Trust's Board of
Trustee meetings to provide information related to its services
to the Adviser.
(b) Wilshire, at its expense, will furnish all necessary investment,
administrative, and management staff (including salaries of personnel),
facilities, and equipment necessary for it to execute its obligations under this
Agreement.
3. NO DISCRETION
Wilshire and the Adviser acknowledge and agree that Wilshire is not
providing discretionary investment advice to the Adviser or the Funds, has no
authority with respect to the Funds, and the Adviser is solely responsible for
the implementation of the Funds' investment program.
4. NON-EXCLUSIVE RELATIONSHIP.
The services provided by Wilshire under this Agreement are not to be deemed
exclusive, and Wilshire shall be free to render similar or different services to
others. The advice given and actions taken with respect to other clients, and
Wilshire's own investment decisions, may be similar to or different from advice
given with respect to the Adviser.
5. COMPENSATION.
As compensation for the services to be rendered by Wilshire under the
provisions of this Agreement, the Adviser will pay to Wilshire compensation in
accordance with the fee schedule as set forth in Schedule B attached hereto. All
fees are due and payable as set forth in Schedule B.
6. REPRESENTATIONS.
(a) Representations of the Adviser. The Adviser represents, warrants and
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agrees that the Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the 1940 Act, the Advisers Act or
other law, regulation or order from performing the services contemplated by this
Agreement; (iii) has met and will seek to continue to meet for so long as this
Agreement remains in effect, any other applicable federal or state requirements,
or other applicable requirements of any regulatory or industry self-regulatory
agency necessary to be met in order to perform the services contemplated by this
Agreement; (iv) has the authority to enter into and perform the services
contemplated by this Agreement ; and (v) will promptly notify Wilshire of the
occurrence of any event that would disqualify the Adviser from serving as an
investment adviser of an investment company pursuant to Section 9(a) of the 1940
Act or otherwise.
(b) Representations of Wilshire. Wilshire represents, warrants and agrees
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as follows: Wilshire (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the
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1940 Act, the Advisers Act or other law, regulation or order from performing the
services contemplated by this Agreement; (iii) has met and will seek to continue
to meet for so long as this Agreement remains in effect, any other applicable
federal or state requirements, or other applicable requirements of any
regulatory or industry self-regulatory agency necessary to be met in order to
perform the services contemplated by this Agreement; (iv) has the authority to
enter into and perform the services contemplated by this Agreement ; and (v)
will promptly notify the Adviser of the occurrence of any event that would
disqualify Wilshire from serving as an investment adviser pursuant to the
Advisers Act.
7. TERM, TERMINATION AND ASSIGNMENT.
This Agreement will operate on a continuous basis until terminated by
either party with sixty (60) days' prior written notice to the other party. This
Agreement shall automatically terminate in the event that the investment
advisory contract between the Adviser and the Fund shall have terminated for any
reason. Neither party shall assign this agreement without the prior written
consent of the other party.
8. LIABILITY OF WILSHIRE.
In the absence of willful misfeasance, bad faith or gross negligence on the
part of Wilshire, or reckless disregard of its obligations and duties hereunder,
neither Wilshire nor its officers, directors, employees or agents shall be
subject to any liability for any action performed or not performed or for errors
of judgment or mistake in providing the services hereunder.
9. CONFIDENTIAL INFORMATION
(a) Wilshire will use records or information obtained under this Agreement
only for the purposes contemplated hereby, and will not disclose such records or
information in any manner other than expressly authorized by the Adviser, or if
disclosure is expressly required by applicable federal or state regulatory
authorities or by this Agreement.
(b) Notwithstanding the foregoing, Wilshire shall not disclose to any third
party the "non-public portfolio holdings" of the Funds, unless (1) there is a
legitimate business purpose for such disclosure, and (2) such third party agrees
in writing with Wilshire to keep such information confidential and to not engage
in trading based upon such information. "Non-public portfolio holdings" means
holdings which have not first been made public by making a filing with the
Securities and Exchange Commission which is required to include such portfolio
holdings information.
10. USE OF NAME AND CONFLICT DISCLOSURE.
(a) The Adviser may use Wilshire's name in reference to the services
provided by Wilshire to the Adviser only with the prior written consent of
Wilshire. The Adviser shall furnish to Wilshire, prior to its use, each piece of
advertising, supplemental sales literature or other promotional materials in
which Wilshire or any of its affiliates is named. Wilshire
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agrees to respond to any request for approval on a prompt and timely basis.
Failure to respond within ten (10) calendar days to the Adviser shall relieve
the Adviser of the obligation to obtain the prior written permission of
Wilshire.
(b) Wilshire may identify the Adviser as a Wilshire client in response to
relevant inquiries relating to potential conflicts of interest from clients of
other Wilshire services.
11. GOVERNING LAW.
This Agreement shall be construed and interpreted in accordance with the
laws of the State of Delaware without regard to conflict of law principles.
12. NOTICES.
Any notice that is required to be given by the parties to each other under
the terms of this Agreement shall be given in writing, delivered, or mailed to
the other party, or transmitted by facsimile to the parties at the following
addresses or facsimile numbers, which may from time to time be changed by the
parties by notice to the other party:
(a) If to Wilshire:
Wilshire Associates Incorporated
0000 Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxx Xxxxxx, XX 00000
Attn: General Counsel
(b) If to the Adviser:
Lincoln Investment Advisers Corporation
Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
IN WITNESS WHEREOF, the parties have caused this instrument to be signed by
their duly authorized representatives, all as of the day and year first above
written.
LINCOLN INVESTMENT ADVISERS WILSHIRE ASSOCIATES
CORPORATION INCORPORATED
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Name: Xxxxxx X. Xxxxx Name:
Title: President Title:
Date: Date:
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