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SECOND AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
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TABLE OF CONTENTS
SECTION 1. Additional Definitions................................ 2
SECTION 2. Distribution Activities -- Authority.................. 3
SECTION 3. Distribution Activities -- Appointment................ 5
SECTION 4. Distribution Activities -- Duties..................... 6
SECTION 5. Limitations on Authority.............................. 6
SECTION 6. Sales Agreements...................................... 7
SECTION 7. Forms, Applications, and Licensing.................... 7
SECTION 8. Marketing Materials................................... 8
SECTION 9. The Distributor's Compensation........................ 11
SECTION 10. Representations and Warranties........................ 12
SECTION 11. Indemnification....................................... 14
SECTION 12. Records............................................... 19
SECTION 13. Investigations and Proceedings........................ 19
SECTION 14. Term and Termination.................................. 20
SECTION 15. Rights Upon Termination............................... 21
SECTION 16. Independent Contractor................................ 23
SECTION 17. Notices............................................... 23
SECTION 18. Arbitration........................................... 24
SECTION 19. Confidentiality....................................... 24
SECTION 20. Severability.......................................... 25
SECTION 21. Choice of Law......................................... 25
SECTION 22. No Waiver............................................. 25
SECTION 23. Agreement Non-Assignable.............................. 26
SECTION 24. Exhibits and Schedules................................ 26
SECTION 25. Headings.............................................. 26
SECTION 26. Entire Agreement...................................... 26
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SECOND AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 8th day of March, 1999, by and between Xxxxxx
Investors Life Insurance Company, an Illinois insurance company (the "Insurance
Company"), and Life Insurance Solutions, L.L.C., a Delaware limited liability
company d/b/a LIS Securities (the "Distributor"), on its own behalf and on
behalf of the individuals and entities listed on Schedule 1 to this Agreement
(the "Distributor Agency Affiliates"), as that Schedule may be amended from time
to time in accordance with this Agreement.
RECITALS:
WHEREAS, the Insurance Company and the Distributor have previously entered
into an Amended and Restated Distribution Agreement dated November 1, 1998, and
intend this Agreement to supersede and replace that agreement;
WHEREAS, the Insurance Company issues certain variable annuity contracts
and variable life insurance policies; and
WHEREAS, certain of the variable annuity contracts and variable life
insurance policies issued by the Insurance Company (the "Private Placements")
are being offered and sold in reliance upon exemptions from the registration
requirements of the Securities Act of 1933 (the "1933 Act") and the Investment
Company Act of 1940 (the "1940 Act"), while certain other variable annuity
contracts and variable life insurance policies issued by the Insurance Company
are being offered and sold pursuant to Registration Statements (the "Registered
Products") and their related Prospectuses filed with and declared effective by
the Securities and Exchange Commission (the "Commission") under the provisions
of the 1933 Act and the 1940 Act (collectively, the Private Placements and the
Registered Products are referred to as the "Variable Products") (Variable
Products are identified in Schedule 2 to this Agreement); and
WHEREAS, the Distributor is registered as a broker-dealer with the
Commission under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD") that engages in the distribution of
insurance products; and
WHEREAS, the Insurance Company desires to retain the Distributor to
distribute the Variable Products through registered broker-dealers
("Broker-Dealers") and their registered representatives ("Representatives"); and
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WHEREAS, the Distributor desires to be retained by the Insurance Company to
distribute the Variable Products on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of mutual promises contained herein, the
parties hereto agree as follows:
1. ADDITIONAL DEFINITIONS
(a) AFFILIATE -- With respect to a person, any other person controlling,
controlled by, or under common control with, such person.
(b) APPLICATIONS -- The forms used by the prospective purchaser to apply
for a variable life insurance policy or a variable annuity contract.
(c) CONTRACTS -- The variable annuity contracts and certificates set forth
in Schedule 2 to this Agreement as in effect at the time this Agreement is
executed, and such other variable annuity products that may be added to
Schedule 2 from time to time.
(d) POLICIES -- The variable life insurance policies set forth in Schedule
2 to this Agreement as in effect at the time this Agreement is executed,
and such other variable life insurance products that may be added to
Schedule 2 from time to time.
(e) PREMIUM -- A payment made under a Policy by an applicant or purchaser
to purchase the Policy.
(f) PRIVATE PLACEMENT GUIDELINES -- The guidelines set forth in Schedule 3
to this Agreement, as that Schedule may be amended from time to time.
(g) PRIVATE PLACEMENT MEMORANDUM -- The document through which the
Insurance Company offers Private Placements. For purposes of Section 11 of
this Agreement, the term "any Private Placement Memorandum" means any
document which is or at any time was a Private Placement Memorandum within
the meaning of this Section 1(g).
(h) PRIVATE PLACEMENTS -- Contracts and Policies being offered and sold
in reliance upon exemptions from the registration requirements of the 1933
Act and the 1940 Act for non-public offerings.
(i) PROSPECTUS -- The prospectus if any, included within a Registration
Statement or, if more recent, the prospectus filed pursuant to Rule 497
under the 1933 Act. For purposes of Section 11 of this Agreement, the term
"any Prospectus" means any
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document which is or at any time was a Prospectus within the meaning of
this Section 1(i).
(j) PURCHASE PAYMENT -- A payment made under a Contract by an applicant or
purchaser to purchase benefits under the Contract.
(k) REGISTRATION STATEMENT -- At any time that this Agreement is in
effect, each currently effective registration statement, or currently
effective post-effective amendment thereto, relating to the Contracts or
Policies, including financial statements included in, and all exhibits to,
that registration statement or post-effective amendment. For purposes of
Section 11 of this Agreement, the term "Registration Statement" means any
document which is or at any time was a Registration Statement within the
meaning of this Section 1(k).
(l) REGULATIONS -- The rules and regulations promulgated by the Commission
under the 1933 Act, the 1934 Act and the 1940 Act as in effect at the time
this Agreement is executed or thereafter promulgated.
(m) VARIABLE ACCOUNTS -- Separate accounts established pursuant to
Illinois state insurance law supporting the Variable Products specified in
Schedule 2 as in effect at the time this Agreement is executed, or as it
may be amended from time to time.
2. DISTRIBUTION ACTIVITIES -- AUTHORITY
(a) The Insurance Company authorizes the Distributor, and the Distributor
accepts the authority, to act as a distributor of the Variable Products,
subject to any applicable requirements of the 1933 Act and the 1940 Act.
The Insurance Company hereby authorizes the Distributor to select persons
that will be authorized to engage in solicitation activities with respect
to the Variable Products, including the recruitment and appointment of
Broker-Dealers and Representatives which in turn may be authorized to
engage in solicitation activities involving the solicitation of
Applications, Premiums and Purchase Payments directly from prospective
purchasers.
The Distributor shall enter into separate written "Sales Agreements" with
Broker-Dealers for distribution of the Variable Products. The Distributor
shall notify the Insurance Company of its intention to enter into a Sales
Agreement with a Broker-Dealer by providing to the Insurance Company a copy
of that Sales Agreement at least five (5) business days prior to the date
on which the Sales Agreement is to be executed by the
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parties thereto. The Distributor shall not enter into a Sales Agreement
with a Broker-Dealer if the Insurance Company reasonably objects within
five (5) days after delivery of the proposed Sales Agreement with the
Broker-Dealer by notifying the Distributor of its objection and reasons
therefor in writing.
(b) The Insurance Company shall not offer for sale or sell any Variable
Products to or through any of the persons listed on Schedule 4 to this
Agreement, as that Schedule may be amended from time to time, or any of the
successors or assigns of those persons, or to or through any affiliate of
such person (unless otherwise indicated on Schedule 4 that the use of an
affiliate is not precluded) other than sales (through Broker-Dealers or
directly) pursuant to this Agreement without the prior written consent of
the Distributor. It is understood that Schedule 4 will be re-evaluated
quarterly after the effective date of this Agreement and will be amended to
add persons with whom a Sales Agreement has been executed (or is reasonably
expected to be executed within one year of the quarterly re-evaluation) or
to delete persons for which no Sales Agreement has been executed during the
one year or longer period that person has been listed on Schedule 4.
Any person included on or added to Schedule 4 shall be subject to an annual
minimum production standard for the period beginning on the effective date
of that person's Sales Agreement through the end of this Agreement. The
annual minimum production standard for each such person shall be mutually
agreed to by the parties to this Agreement in writing and shall be reset
annually on the anniversary of the effective date of that person's Sales
Agreement. In the event that the parties cannot agree on terms or the
annual minimum production standard is not met with respect to any person,
such person shall be permanently deleted from Schedule 4 unless the
Insurance Company, in its discretion, consents in writing to the addition
of such person to Schedule 4 in a subsequent year.
(c) Any Sales Agreement between the Distributor and a Broker-Dealer shall
require the Broker-Dealer to prepare a monthly activity report in form and
substance mutually acceptable to the Distributor and the Insurance Company.
That Sales Agreement shall further require the Broker-Dealer to provide
those monthly activity reports to the Distributor no later than the fifth
business day following the end of each month. The Distributor shall provide
a copy of the monthly activity report to the Insurance Company no later
than the seventh business day following the end of each month.
(d) Nothing in this Agreement precludes additional distribution and
compensation arrangements among the parties to this Agreement, including
ones that may have compensation arrangements that reward the Insurance
Company for identifying and recruiting new Broker-Dealers to sell the
Variable Products, for identifying potential
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purchasers of the Variable Products, or for providing superior support
under this Agreement.
3. DISTRIBUTION ACTIVITIES -- APPOINTMENT
(a) Where required by applicable state insurance law, the Insurance
Company hereby appoints the Distributor as its agent under that state
insurance law to represent the Insurance Company in the distribution
activities contemplated by this Agreement. The Insurance Company hereby
authorizes the Distributor under applicable securities laws to engage in
the activities contemplated by this Agreement relating to the distribution
of the Variable Products.
(b) In states where the Distributor is not licensed as an insurance agent
and applicable state insurance law requires that the Distributor be so
licensed, the Insurance Company hereby appoints each Distributor Agency
Affiliate listed on Schedule 1 to this Agreement (as that Schedule may be
amended from time to time by the Distributor when required by applicable
state insurance law to reflect changes in the licensing status of the
Distributor or the Distributor Agency Affiliates) as its agent under
applicable state insurance laws to represent the Insurance Company in the
distribution activities contemplated by this Agreement.
(c) The Distributor is hereby vested with the power and authority to
authorize Broker-Dealers to recommend Representatives for appointment as
agents of the Insurance Company. The Insurance Company shall appoint in the
appropriate states or jurisdictions the Representatives recommended by the
Broker-Dealers, provided that the Insurance Company reserves the right,
which right shall not be exercised unreasonably, to refuse to appoint as
agent any Representative, and, once appointed, to terminate the same at any
time for cause. The Distributor shall submit to the Insurance Company a
"certificate of good standing" executed by a principal of the Broker-Dealer
for each Representative recommended for appointment. The Insurance Company
shall notify the Distributor of its intent to terminate a Representative
and the reasons therefor not less than two (2) business days prior to
delivering any notice of termination to the Representative and the
Broker-Dealer with whom the Representative is associated.
(d) The Insurance Company shall not enter into any agent or agency
agreement (an "Agent Agreement") with any Representative, Broker-Dealer, or
affiliate (contractual or otherwise) of a Broker-Dealer (a "Broker-Dealer
Affiliate") in connection with this Agreement for the sale of the Variable
Products, unless that Agent Agreement (i) is substantially identical to the
form of Agent Agreement attached hereto as Schedule 7 or (ii) is approved
by the Distributor, provided that the approval of the Distributor shall be
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deemed to have been given if no written objection to the Agent Agreement
has been delivered by the Distributor to the Insurance Company within five
(5) business days after being provided with a copy of the proposed Agent
Agreement. After entering into an Agent Agreement, the Insurance Company
shall not amend or supplement that agreement without the Distributor's
prior written consent, which consent shall not be unreasonably withheld.
The Insurance Company shall notify the Distributor of its intent to
terminate an Agent Agreement and the reasons therefor not less than two (2)
business days prior to delivering any notice of termination to the other
party to that agreement.
4. DISTRIBUTION ACTIVITIES -- DUTIES
(a) The Distributor shall use its best efforts to actively market the
Variable Products (except Series I-E Private Placement Group Variable Life
Insurance Policies and Series I-EF Private Placement Group Variable Life
Insurance Policies) through Broker-Dealers and Representatives in
accordance with the terms and conditions of this Agreement, subject to
applicable material market and regulatory conditions.
(b) The Distributor shall assist and provide information to Broker-Dealers
and Representatives in connection with servicing the Variable Products sold
or marketed by those Broker-Dealers and Representatives.
(c) Under no circumstances shall the Insurance Company or the Distributor
be responsible under this Agreement for any failure by Broker-Dealers or
Representatives to comply with applicable law.
(d) Under no circumstances shall the Distributor be responsible under this
Agreement for any failure by the Insurance Company to comply with
applicable law.
(e) Under no circumstances shall the Insurance Company be responsible
under this Agreement for any failure by the Distributor to comply with
applicable law.
5. LIMITATIONS ON AUTHORITY
(a) The Distributor shall not have the authority, and shall not grant
authority to Broker-Dealers or Representatives, on behalf of the Insurance
Company:
(1) to make, alter or discharge any Variable Product or other
contract entered into pursuant to a Variable Product;
(2) to waive any Variable Product forfeiture provision;
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(3) to extend the time of paying any Purchase Payments or Premiums
due under the Variable Products; and
(4) to receive any monies, Purchase Payments or Premiums (except for
the sole purpose of forwarding monies, Purchase Payments or Premiums
to the Insurance Company).
(b) The Distributor shall not expend, nor contract for the expenditure of,
funds of the Insurance Company.
(c) The Distributor shall not possess or exercise any authority on behalf
of the Insurance Company other than that expressly conferred on the
Distributor by this Agreement.
6. SALES AGREEMENTS
(a) The Distributor shall not enter into any Sales Agreement with a
Broker-Dealer relating to the distribution of any Variable Product, unless
that Sales Agreement (i) is substantially identical to the form of Sales
Agreement attached hereto as Schedule 10 or (ii) is approved by the
Insurance Company, provided that the approval of the Insurance Company
shall be deemed to have been given if no written objection to the Sales
Agreement has been delivered by the Insurance Company to the Distributor
within five (5) business days after being provided by facsimile or express
courier with a copy of the proposed Sales Agreement.
(b) The Distributor shall provide to the Insurance Company a copy of each
Sales Agreement entered into by the Distributor and a Broker-Dealer within
five (5) business days following execution thereof.
7. FORMS, APPLICATIONS, AND LICENSING
(a) The Insurance Company, or its agent, shall forward to the Distributor,
Applications, Policies, Contracts, subscription agreements, certificates,
other administrative forms, and any amendments or supplements to the
foregoing, necessary to carry out the Distributor's distribution authority
and responsibilities with respect to the Variable Products.
(b) The Insurance Company shall obtain all requisite regulatory approvals
of such materials furnished to the Distributor and shall comply with all
applicable laws, rules,
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regulations and orders of any governmental authority relating to the
issuance or sale of the Variable Products.
(c) All Premiums and Purchase Payments paid by check or money order that
are collected by the Distributor, any Broker-Dealer or Representative shall
be remitted promptly, and in any event not later than two business days, in
full, together with any subscription agreements, Applications, forms, and
any other required documentation, to the Insurance Company. Checks or money
orders in payment of Premiums and Purchase Payments shall be drawn to the
order of "Xxxxxx Investors Life Insurance Company." Premiums and Purchase
Payments may be transmitted by wire order from the purchaser of the
Variable Products, Broker-Dealer or any Representative to the Insurance
Company. If any Premium or Purchase Payment is held at any time by the
Distributor, Broker-Dealer, or any Representative, the Distributor,
Broker-Dealer, or Representative shall hold that Premium or Purchase
Payment in a fiduciary capacity. All Premiums and Purchase Payments whether
by check, money order or wire, shall be the property of the Insurance
Company.
(d) The Distributor acknowledges that the Insurance Company shall have the
unconditional right to reject, in whole or in part, any Application. The
Insurance Company shall return any monies received by it from an applicant
or purchaser whose Application has been rejected. The Insurance Company
shall notify the Distributor in writing one business day prior to taking
any action to return any such monies, which notice shall identify, if
applicable, the Broker-Dealer whose Representative submitted the rejected
Application.
(e) If a purchaser exercises its "free look right" under a Variable
Product, any refund of Premiums or Purchase Payments, due as provided in
that Variable Product, shall be made by the Insurance Company to the
purchaser. The Insurance Company shall notify the Distributor in writing
one business day prior to taking any action to refund any such Premiums or
Purchase Payments, which notice shall identify, if applicable, the
Broker-Dealer through which the Variable Product had been purchased.
8. MARKETING MATERIALS
(a) REGISTERED PRODUCTS
(1) The Distributor shall design, develop, produce, make the
determination whether to file and, if necessary, file for and obtain
all necessary regulatory approvals for, all advertising, sales
literature, and other promotional material
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(which shall not be deemed to include any Prospectus) required in
connection with its distribution of the Registered Products.
(2) Prior to use of any advertising, sales literature, or other
promotional material for the Registered Products, the following
procedures shall be observed:
(i) The Distributor shall provide to the Insurance Company
copies of all advertising, sales literature, and other
promotional material developed by the Distributor at least 10
days prior to first use;
(ii) The Insurance Company shall have the right to disapprove
use of any such promotional material, provided that written
notice of the disapproval and basis therefor is provided to the
Distributor within 10 days of receipt by the Insurance Company of
the promotional material;
(iii) If any advertising, sales literature, or other promotional
material names an investment company or an investment company's
investment adviser, the Distributor shall furnish such material
to that investment company or that investment company's
distributor or investment adviser, and written approval shall be
obtained from that investment company or its distributor or
investment adviser before use or authorization of use by the
Broker-Dealers or Representatives;
(iv) Any advertising, sales literature, or other promotional
material relating to the Registered Products required to be filed
with the Commission, NASD Regulation, Inc. ("NASDR"), and any
other appropriate securities and insurance regulatory
authorities, shall be timely filed by the Distributor. The
Distributor shall provide the Insurance Company with a copy of
any comments provided by the NASDR or any securities or insurance
regulatory authority on such material, and the Insurance Company
will cooperate in resolving and implementing any comments, as
applicable.
(b) PRIVATE PLACEMENTS
(1) The Distributor acknowledges that the Private Placements may only
be offered for sale or sold in transactions not involving any public
offering and may not be offered for sale or sold by any form of
general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D under the 1933 Act, and the Distributor agrees
that the Private Placements may only be offered
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through the use of Private Placement Memoranda and
prospective-purchaser-specific supplemental information.
(2) The Distributor shall design, develop, and produce, and obtain
all necessary regulatory approvals for, all prospective-
purchaser-specific supplemental information (which shall not be deemed
to include any Private Placement Memorandum) required in connection
with its distribution of the Private Placements.
(3) Any Sales Agreement between the Distributor and a Broker-Dealer
in respect of Series I-B Private Placement Group Variable Life
Insurance Policies, Series I-E Private Placement Group Variable Life
Insurance Policies (which is limited under this Agreement to one
existing case whose compensation schedule is included in Schedule 5
hereto), Series I-EF Private Placement Group Variable Life Insurance
Policies (which is limited under this Agreement to one existing case
whose compensation schedule is included in Schedule 5 hereto), Series
I-F Private Placement Group Variable Life Insurance Policies, Series
I-I Private Placement Group Variable Life Insurance Policies, Series
I-K Private Placement Group Variable Life Insurance Policies, and any
future variations of those Policies (collectively referred to herein
as "Series I Policies") and any other Private Placements shall require
that the form of all sales, training, explanatory, or other materials
prepared by that Broker-Dealer in connection with Private Placements
must be approved by the Distributor and the Insurance Company prior
to use. That Sales Agreement shall further require the Broker-Dealer
to submit to the Distributor and the Insurance Company, for written
approval at least ten days prior to use, all materials developed by
the Broker-Dealer to be used in connection with the sale of the Series
I Policies that describe the Series I Policies, or describe the terms
of the Series I Policies' offering, or contain Series I Policy
illustrations. The Sales Agreement shall further provide that the
Distributor and the Insurance Company have the right to disapprove the
use of any materials submitted to them by the Broker-Dealer, provided,
that written notice of the disapproval and the basis therefor is
PROVIDED to the Broker-Dealer within ten days of receipt of the
materials by the Distributor and the Insurance Company. The Sales
Agreement shall further require that all written communications
between the Broker-Dealer and prospective clients or Series I Policy
owners shall be maintained by the Broker-Dealer for a period of at
least 5 years and the Distributor and the Insurance Company shall have
the right to inspect those files during normal business hours.
(c) ALLOCATION OF COSTS
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(1) The Distributor shall pay for the development and printing of all
advertising, sales literature, and other promotional material (other
than those materials set forth in paragraph 2, below) and all fees
related to NASDR filings. The Distributor shall also bear the cost of
printing and distributing to prospective purchasers of Variable
Contracts or to owners of Variable Contracts all Prospectuses
(including, for this purpose, prospectuses of registered open-end
management investment companies that serve as funding media for the
Variable Contracts, to the extent not paid by those investment
companies) and Private Placement Memoranda.
(2) The Insurance Company shall bear the cost of registration and
qualification of the Registered Products; the preparation of all
Private Placement Memoranda; the preparation and filing of all
Prospectuses and Registration Statements; setting the Prospectuses and
Private Placement Memoranda in type; the preparation, filing,
printing, and distributing to existing owners of Policies or Contracts
of any proxy materials and reports and of all statements and notices
required by any state or federal law.
(3) The Insurance Company shall bear the cost of any review by it, or
on its behalf, of any advertising, sales literature, or other
promotional material.
(4) The Distributor shall bear the cost of any review by it, or on
its behalf, of any Prospectuses or Private Placement Memoranda.
9. THE DISTRIBUTOR'S COMPENSATION
(a) In consideration for the services rendered by the Distributor pursuant
to this Agreement, the Insurance Company shall pay the Distributor the
compensation set forth in Schedule 5 to this Agreement, as that schedule
may be amended from time to time, provided, that, any such amendments are
in writing and signed by the parties.
(b) With respect to Variable Products in connection with which the
Insurance Company has paid sales commissions as a percentage of Purchase
Payments or Premiums, as the case may be, to the Distributor, to a
Broker-Dealer, or to a Representative, in the event a Contract or Policy on
a Variable Product terminates within twelve (12) months of the date of
receipt of Premium or a Purchase Payment and no contingent deferred sales
charge is received by the Insurance Company, the Insurance Company reserves
the right to recover: (1) one hundred percent (100%) of the compensation
paid to Distributor respecting the sale of the Variable Product if that
Variable Product terminates for reasons other than death during the first
six (6) months
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following receipt of Premium or a Purchase Payment; (2) fifty percent (50%)
of the compensation paid to the Distributor if the Variable Product
terminates after six (6) months but before twelve (12) months have elapsed
following receipt of Premium or a Purchase Payment; and (3) nothing from
the Distributor (i.e., no charge back) if the Variable Product terminates
thereafter. With respect to any other terminations, the Insurance Company
has no right to recover any portion of the compensation paid to the
Distributor. In no event shall the Insurance Company have the right to
recover any portion of any compensation received by the Distributor as a
basis point charge against investment values under the contracts. The
Insurance Company shall have the right to set off any amounts owed by the
Distributor under this Section 9(b) against any amounts owed by the
Insurance Company to the Distributor.
(c) In the event that the Insurance Company exercises its right to assess
a front-end sales charge against Premium under the Private Placements
specified in Schedule 2, as may be amended from time to time, which right
it has reserved in the Private Placement Memoranda, the front-end sales
charge will be paid by the Insurance Company to the Distributor. The
Distributor will generally use the front-end sales charge to finance sales
commissions to Broker-Dealers and Registered Representatives.
10. REPRESENTATIONS AND WARRANTIES
(a) BY THE DISTRIBUTOR
The Distributor represents and warrants to, and covenants with, the
Insurance Company as follows:
(1) The Distributor has taken all action necessary including without
limitation, those necessary under its articles of incorporation,
by-laws and applicable state corporate law, to authorize the
execution, delivery and performance of this Agreement and all
transactions contemplated hereunder.
(2) The Distributor is and shall remain registered during the term of
this Agreement as a broker-dealer under the 1934 Act, a member in good
standing of the NASD, and duly registered under applicable state
securities laws.
(3) The Distributor is and shall remain during the term of this
Agreement in compliance with the eligibility requirements for certain
affiliated persons and underwriters found in Section 9(a) of the 0000
Xxx.
(4) The Distributor and each Distributor Agency Affiliate has all
necessary licenses and regulatory approvals to perform the services
required by this
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Agreement and that the Distributor will notify the Insurance Company
within three business days of obtaining actual knowledge of any change
in the status of such licenses or regulatory approvals.
(5) The Distributor has, or will have, the authority to bind the
Distributor Agency Affiliates to the terms of this Agreement.
(b) BY THE INSURANCE COMPANY
The Insurance Company represents and warrants to, and covenants
with, the Distributor as follows:
(1) All necessary regulatory approvals and licenses from any state or
federal governmental body having jurisdiction over the Insurance
Company or the Variable Products have been obtained, and the Insurance
Company will notify the Distributor within one business day of
obtaining actual knowledge of any change in the status of any
approvals or licenses related to the marketing, sale or distribution
of the Variable Products.
(2) The Insurance Company has taken all action necessary including,
without limitation, those necessary under its articles of
incorporation, bylaws and applicable state corporate law, to authorize
the execution, delivery and performance of this Agreement and all
transactions contemplated hereunder.
(3) The Insurance Company is and shall remain during the term of this
Agreement in compliance with the eligibility requirements for certain
affiliated persons and underwriters found in Section 9(a) of the 0000
Xxx.
(4) With respect to the cost of insurance rates for "HNW Policies"
(i.e., Policies other than Series I Policies), the Insurance Company
shall utilize the applicable current single life cost of insurance
rates contained in Schedule 8 to this Agreement. With respect to the
cost of insurance rates for HNW Policies issued on a survivorship
basis, the Insurance Company shall "fraserize" the applicable current
single life cost of insurance rates as described in Schedule 9 to this
Agreement. The Insurance Company shall notify the Distributor, in the
manner provided for in Section 17 of this Agreement, at least thirty
(30) days in advance of the anticipated implementation date of any
proposed changes to (i) the current single life cost of insurance
rates contained in Schedule 8 to this Agreement or (ii) the
"fraserization" process contained in Schedule 9 to this Agreement, and
the resulting changes, if any, to the cost of insurance rates. The
Insurance Company
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shall include with its notification to the Distributor a copy of the
proposed changes.
11. INDEMNIFICATION
(a) BY THE DISTRIBUTOR
(1) The Distributor agrees to indemnify and hold harmless the
Insurance Company and each director, officer, employee or agent of the
Insurance Company, and each person, if any, who controls the Insurance
Company within the meaning of the federal securities laws
(collectively, the "Indemnified Parties" for purposes of this Section
11(a)) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Insurance Company) or litigation (including legal and other expenses)
to which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the offer or sale of the
Variable Products or the operation of the Variable Accounts and:
(i) arise out of, or are based upon, violation(s) by the
Distributor or a Distributor Agency Affiliate of federal or state
securities law(s) or regulation(s), applicable banking law(s) or
regulation(s), insurance law(s) or regulation(s) or any rule or
requirement of the NASD; or
(ii) arise out of, or are based upon, any oral or written
misrepresentation, or any unlawful sales practices concerning the
Variable Products by the Distributor; or
(iii) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact or omission or
alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were
made, contained in any advertising, sales literature, or other
promotional material designed, developed, and produced by the
Distributor and used by it in the distribution of the Variable
Products; provided that the Distributor shall not be liable in
any such case to the extent that such losses, claims, damages,
liabilities or expenses arises out of, or are based upon, an
untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon information furnished in
writing to the Distributor by the Insurance Company specifically
for use in the preparation of any such promotional material; or
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(iv) arise out of, or are based upon, claims by the
Representatives or agents or representatives of the Distributor
for commissions or other compensation or remuneration of any
type; or
(v) arise as a result of any failure on the part of the
Distributor to submit Premiums, Purchase Payments, or
Applications to the Insurance Company, or to submit the correct
amount of a Premium or Purchase Payment, on a timely basis and in
accordance with this Agreement, subject to applicable law; or
(vi) arise as a result of any failure on the part of the
Distributor to deliver the Variable Products to purchasers
thereof on a timely basis; provided that the Distributor shall
not be liable in any such case to the extent that such losses,
claims, damages, liabilities or expenses arise as a result of any
failure on the part of the Insurance Company to perform its
obligations under this Agreement on a timely basis; or
(vii) arise as a result of a material breach by the Distributor
of any provisions of this Agreement; or
(viii) arise as a result of actions of a Broker-Dealer or its
Representatives, if, and to the extent that, the Distributor has
received monies from the Broker-Dealer as indemnification for
losses by, or expenses incurred by, the Insurance Company;
as limited by and in accordance with the provisions of Sections
11(a)(2) and 11(a)(3) hereof.
(2) The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation ("Losses" for purposes of this Section 11(a)(2)) incurred
or assessed against an Indemnified Party that may arise from any
Indemnified Party's willful misfeasance or bad faith. The
Distributor's liability for Losses in the event of its breach of this
Agreement shall be limited to that portion of Losses caused by its
breach, and the Distributor shall not be liable for that portion of
Losses caused by breach of this Agreement by an Indemnified Party or
from any act or omission by an Indemnified Party.
(3) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless that Indemnified Party shall have notified the Distributor in
writing within five (5)
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business days after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
that Indemnified Party (or after the Indemnified Party shall have
received notice of such service on any designated agent).
Notwithstanding the foregoing, the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Distributor of
its obligations hereunder except to the extent that the Distributor
has been prejudiced by such failure to give notice. In addition, any
failure by the Indemnified Party to notify the Distributor of any such
claim shall not relieve the Distributor from any liability which it
may have to the Indemnified Party against whom the action is brought
otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the
Distributor shall be entitled to participate, at its own expense, in
the defense of the action. The Distributor also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party
named in the action; provided, however, that if the Indemnified Party
shall have reasonably concluded that there may be defenses available
to it which are different from or additional to those available to the
Distributor, the Distributor shall not have the right to assume said
defense, but shall pay the costs and expenses thereof (except that in
no event shall the Distributor be liable for the fees and expenses of
more than one counsel for Indemnified Parties in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances). After notice from the Distributor to the Indemnified
Party of the Distributor's election to assume the defense thereof, and
in the absence of such a reasonable conclusion that there may be
different or additional defenses available to the Indemnified Party,
the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Distributor will not be
liable to that party under this Agreement for any legal or other
expenses subsequently incurred by the party independently in
connection with the defense thereof other than reasonable costs of
investigation.
(4) The Indemnified Parties will notify the Distributor within
five (5) business days of the commencement of any litigation or
proceedings against them in connection with the offer or sale of
the Variable Products or the operation of the Variable Accounts.
(b) BY THE INSURANCE COMPANY
(1) The Insurance Company agrees to indemnify and hold harmless the
Distributor and each director, officer, employee or agent of the
Distributor, and each person, if any, who controls the Distributor
within the meaning of the federal securities laws (collectively, the
"Indemnified Parties" for purposes of this
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Section 11(b)) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written
consent of the Insurance Company) or litigation (including legal and
other expenses) to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the offer or sale of
the Variable Products or the operation of the Variable Accounts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact or omission or
alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were
made, contained in any: (A) Registration Statement or Prospectus;
(B) blue-sky application or other document executed by the
Insurance Company specifically for the purpose of exempting the
Private Placements from, or qualifying any or all of the
Registered Products for sale under, the securities laws of any
jurisdiction; or (C) information furnished in writing to the
Distributor specifically for the purpose of being included in any
advertising, sales literature, or other promotional material to
be used in connection with the distribution of the Variable
Products; provided that the Insurance Company shall not be liable
in any such case to the extent that such losses, claims, damages,
liabilities or expenses arise out of, or are based upon, an
untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon information furnished in
writing to the Insurance Company by the Distributor specifically
for use in the preparation of any such document, application, or
promotional material; or
(ii) result because of the provisions of any Variable Product
or because of any material breach by the Insurance Company of any
provision of this Agreement or of any Variable Product or which
result from any activities of the Insurance Company's officers,
directors, employees or agents (except Life Insurance Solutions,
L.L.C. in its capacity as administrator of certain Variable
Products) or their failure to take any action in connection with
the sale, processing or administration of the Variable Products
including, without limitation, obtaining auditors' reports,
computing accurate separate account and/or underlying fund
performance data, preparation and timely filing and delivery, as
required, of annual and semiannual reports and reports on Form
N-SAR and the timely payment of all state and federal
registration fees;
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as limited by and in accordance with the provisions of Sections
11(b)(1) and 11(b)(2) hereof.
(2) The Insurance Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation ("Losses" for purposes of this Section
11(b)(2)) incurred or assessed against an Indemnified Party that may
arise from any Indemnified Party's willful misfeasance or bad faith.
The Insurance Company's liability for Losses in the event of its
breach of this Agreement shall be limited to that portion of Losses
caused by its breach, and that party shall not be liable for that
portion of Losses caused by breach of this Agreement by an Indemnified
Party or from any act or omission by an Indemnified Party.
(3) The Insurance Company shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless that Indemnified Party shall have notified
the Insurance Company in writing within five (5) business days after
the summons or other first legal process giving information of the
nature of the claim shall have been served upon that Indemnified Party
(or after the Indemnified Party shall have received notice of such
service on any designated agent). Notwithstanding the foregoing, the
failure of any Indemnified Party to give notice as provided herein
shall not relieve the Insurance Company of its obligations hereunder
except to the extent that the Insurance Company has been prejudiced by
such failure to give notice. In addition, any failure by the
Indemnified Party to notify the Insurance Company of any such claim
shall not relieve the Insurance Company from any liability which it
may have to the Indemnified Party against whom the action is brought
otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the
Insurance Company shall be entitled to participate, at its own
expense, in the defense of the action. The Insurance Company also
shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action; provided, however, that
if the Indemnified Party shall have reasonably concluded that there
may be defenses available to it which are different from or additional
to those available to the Insurance Company, the Insurance Company
shall not have the right to assume said defense, but shall pay the
costs and expenses thereof (except that in no event shall the
Insurance Company be liable for the fees and expenses of more than one
counsel for Indemnified Parties in connection with any one action or
separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances). After
notice from the Insurance Company to the Indemnified Party of the
Insurance Company's election to assume the defense thereof, and in the
absence of such a reasonable conclusion that there may be
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different or additional defenses available to the Indemnified Party,
the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Insurance Company will not
be liable to that party under this Agreement for any legal or other
expenses subsequently incurred by the party independently in
connection with the defense thereof other than reasonable costs of
investigation.
(4) The Indemnified Parties will notify the Insurance Company within
five (5) business days of the commencement of any litigation or
proceedings against them in connection with the offer or sale of the
Variable Products or the operation of the Variable Accounts.
12. RECORDS
The Insurance Company and the Distributor each shall maintain such
accounts, books and other documents as are required to be maintained by each of
them by applicable laws and regulations and shall preserve such accounts, books
and other documents for the periods prescribed by such laws and regulations. The
accounts, books and records of the Insurance Company as to all transactions
hereunder shall be maintained so as to clearly and accurately disclose the
nature and details of the transactions, including such accounting information as
necessary to support the reasonableness of the amounts paid by the Insurance
Company hereunder. Each party shall have the right to inspect and audit such
accounts, books and records of the other party during normal business hours upon
reasonable written notice to the other party. Any party that requests an audit
of the accounts, books and records of the other party shall bear the expense of
conducting such an audit, including the expenses of the other party reasonably
incurred in connection with the audit, but not including the costs associated
with the time spent on audit-related matters by directors, officers, or
employees of the other party and the associated overhead expenses incurred by
such party.
13. INVESTIGATIONS AND PROCEEDINGS
(a) COOPERATION
The Distributor and the Insurance Company shall notify each other
promptly of and cooperate fully in any insurance regulatory investigation
or proceeding or judicial proceeding arising in connection with the
offering, sale or distribution of the Variable Products pursuant to this
Agreement. Further, the Distributor and the Insurance Company shall
cooperate fully in any securities regulatory investigation or proceeding or
judicial proceeding with respect to the Insurance Company, the Distributor,
their affiliates, agents or employees to the extent that such investigation
or proceeding is in connection with the offering, sale or distribution of
the Variable Products pursuant to this Agreement.
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(b) COMPLAINTS
The Insurance Company and the Distributor shall notify each other
promptly of any complaint received by any party with respect to the
Insurance Company, the Distributor or any of their affiliates, agents or
employees or which may affect the Insurance Company's issuance of any
Variable Product marketed under this Agreement. In the case of a
substantive complaint, the Distributor and the Insurance Company shall
cooperate in investigating such complaint and any such response by any
party to such complaint shall be sent to the other party for written
approval not less than five (5) business days prior to its being sent to
the complainant or any regulatory authority. In any event, neither party
shall release any such response without the other party's prior written
approval.
14. TERM AND TERMINATION
(a) TERM -- This Agreement shall be effective from the date hereof through
December 31, 2001, which term shall automatically be extended for a period
of three years and tri-annually thereafter for an additional period of
three years until this Agreement is sooner terminated in accordance with
the terms of the Agreement.
(b) TERMINATION -- No party hereto may terminate this Agreement except as
expressly provided in this Section 14(b).
(1) Any party hereto may terminate this Agreement effective the date
that the term of this Agreement would otherwise automatically be
renewed upon written notice delivered to the other party not less than
30 nor more than 60 days prior to such effective date, which notice
shall specify that it is being given pursuant to this Section
14(b)(1).
(2) A party (the "Terminating Party") may terminate this Agreement
for cause if:
(i) another party (the "Breaching Party") materially breaches
this Agreement,
(ii) the Terminating Party has delivered to the Breaching Party
a notice specifying that it is a notice of breach being given
pursuant to this Section 14(b)(2), and
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(iii) the Breaching Party has not cured that breach within 30
days after the delivery of the notice.
(3) A Terminating Party may terminate this Agreement for cause (upon
30 days written notice to the other party) if, as a result of
(i) the voluntary institution by the Distributor of bankruptcy
proceedings or the voluntary institution by the Insurance Company
of insolvency or rehabilitation proceedings under any state
insurance laws or regulations (each an "Insolvent Party") or
(ii) a formal order or written finding by a court of competent
jurisdiction that the Insolvent Party is bankrupt or insolvent,
there is a degradation of the Insolvent Party's reputation that would
materially impair the ability of the Insolvent Party to carry out its
obligations under this Agreement.
(4) The Insurance Company may terminate this Agreement if: (i) 50% or
more of the voting interests in the Distributor ceases to be held by
an Affiliate of the Insurance Company; or (ii) the voting manager of
the Distributor who represents an Affiliate of the Insurance Company
is changed to a person who is unacceptable to the Insurance Company.
(c) ACTIVITIES AFTER TERMINATION -- Upon termination of this Agreement for
any reason, the Distributor agrees that it will not take any action
designed or calculated to result in the transfer or exchange of Contracts
or Policies.
(d) SURVIVAL -- The provisions of Sections 10, 11, 14(c), 18 and 19
(Representations and Warranties, Indemnification, Activities after
Termination, Arbitration and Confidentiality, respectively) shall survive
the termination of this Agreement.
15. RIGHTS UPON TERMINATION
(a) In no event will any further compensation be paid to the Distributor
should the Insurance Company terminate this Agreement for cause pursuant to
Section 14(b)(2) or Section 14(b)(3).
(b) As of the date of termination, the Insurance Company shall have the
right to set off against any monies it owes the Distributor any amounts
owed by the Distributor to the
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Insurance Company. In the event that the amounts owed by the Distributor
exceed the amounts owed by the Insurance Company, the difference shall
become immediately due and payable by the Distributor.
(c) In the event that either party does not pay within two weeks after
termination the net amount it owes, then the net amount owed will accrue
interest, compounded daily, at the fluctuating prime interest rate charged
by The Chase Manhattan Bank, N.A., plus two percent (2%).
(d) The parties acknowledge and agree that the damages that the
Distributor would suffer were the Distributor to terminate this Agreement,
pursuant to Section 14(b)(2) or 14(b)(3), are uncertain in amount and
difficult to establish. Therefore, if this Agreement is terminated in the
foregoing manner, the Insurance Company agrees to pay the Distributor
termination fees in the amount and in the manner set forth in Schedule 6
and Schedule 6(a) to this Agreement.
(e) If the Insurance Company terminates this Agreement pursuant to Section
14(b)(1) or Section 14(b)(4), the Insurance Company, after the termination
of this Agreement, shall continue to:
(1) pay the Distributor the compensation set forth in Schedule 5 to
this Agreement; and
(2) offer all of the Variable Products identified on Schedule 2 to
this Agreement for a period of one (1) year from the date of
termination of this Agreement, during which period of time (i) the
Insurance Company shall employ at least the same level of efforts in
offering and supporting the Variable Products as it did before the
termination of this Agreement and (ii) the terms of this Agreement
shall remain in full force and effect as though the Agreement had not
been terminated.
(f) If the Distributor terminates this Agreement pursuant to Section
14(b)(1), or if the Insurance Company terminates this Agreement pursuant to
Section 14(b)(4), the Insurance Company, after the termination of this
Agreement, shall continue to pay the Distributor the compensation set forth
in Schedule 5 to this Agreement.
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16. INDEPENDENT CONTRACTOR
The Distributor shall act as an independent contractor in the performance
of its duties and obligations under this Agreement and nothing herein contained
shall constitute the Distributor, Broker-Dealers, Representatives or employees
or officers of the Distributor or Broker-Dealers as employees of the Insurance
Company in connection with the distribution of the Variable Products.
17. NOTICES
Any notice required or permitted under this Agreement shall be delivered
personally or sent by facsimile or by registered or certified mail, return
receipt requested, with all postage prepaid:
(a) TO THE DISTRIBUTOR:
LIS Securities
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
(b) TO THE INSURANCE COMPANY:
Xxxxxx Investors Life Insurance Company
0 Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
A party may change its address or fax number for the delivery of notices by
delivering a written notice to the other party at its last specified address.
All notices shall be effective upon delivery; provided that any notice sent by
facsimile shall be deemed ineffective unless a copy of the notice is also
delivered personally or sent by express courier or mail for delivery on the same
or next business day.
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18. ARBITRATION
Any dispute between the Distributor and the Insurance Company arising under
or relating to this Agreement shall be settled by compulsory arbitration before
a panel of three (3) arbitrators in accordance with the Commercial Arbitration
Rules then in force of the American Arbitration Association. The arbitration
shall take place in Chicago, Illinois, unless some other location is mutually
agreed upon by the parties in dispute. Each party shall bear its own costs and
expenses in any such arbitration, except that the Distributor and the Insurance
Company shall bear the expenses of the arbitrators' services equally.
19. CONFIDENTIALITY
(a) GENERALLY. Each party will hold the other party's Confidential
Information (as defined below) in confidence and will safeguard it as
provided herein. The party receiving Confidential Information will not,
directly or indirectly, report, publish, distribute, disclose, or otherwise
disseminate the Confidential Information, or any portion thereof, to any
third party including its affiliates, and will not use the Confidential
Information, or any portion thereof, for the benefit of itself or any third
party including its affiliates or for any purpose, except only as necessary
to perform its duties and exercise its rights hereunder, or as expressly
authorized in writing by the party who owns such Confidential Information.
Disclosure of Confidential Information internally by a recipient will be
limited to those of its and its affiliates' officers, directors, employees,
and agents on a "need to know" basis who must have access to the
Confidential Information to enable such party to perform its duties and
exercise its rights hereunder. In order to safeguard the Confidential
Information, each party shall (i) inform each recipient of the Confidential
Information of the confidential nature thereof and of the requirements of
this Agreement, (ii) direct such recipients to comply with the terms of
this Agreement, and (iii) exercise any other precautions necessary to
prevent any improper use or disclosure of Confidential Information.
(b) DEFINITION. "Confidential Information" shall mean: (i) information
regarding a party's or such party's affiliates', financial condition,
information systems, business operations, plans and strategies, products or
services, customers and prospective customers, and marketing and
distribution plans, methods and techniques; (ii) information that is marked
"confidential", "proprietary" or in like words, or that is summarized in
writing as being confidential prior to or promptly after disclosure to the
other party; (iii) any and all related research; and (iv) any and all
designs, ideas, concepts, and technology embodied therein. Confidential
Information of the Distributor or its affiliates that is to be kept
confidential by the Insurance Company shall also include: (v) any
information regarding the pricing strategies of each Broker-Dealer; (vi)
specific marketing and training
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materials of each Broker-Dealer; (vii) any information of the Distributor
or its affiliates in any form whatsoever that is covered by a patent issued
by the United States Patent and Trademark Office; and (viii) any
information relating to the Skycomp illustration and case management
system.
Information is not considered confidential or proprietary if such
information: (1) is or becomes generally available to the public other than
as a result of disclosure by the recipient; (2) was available to or already
known by the recipient on a non-confidential basis prior to its receipt
from the party claiming confidentiality; (3) is developed by the recipient
independently of any information or data acquired from the party claiming
confidentiality; or (4) is disclosed pursuant to a court order or the
requirement of any federal or state regulatory, judicial, or government
authority.
(c) REMEDIES. Each party acknowledges and agrees that monetary damages
would not be a sufficient or adequate remedy for a breach or anticipated
breach of this Section and that, in addition to any other legal or
equitable remedies which may be available, each party shall be entitled to
specific performance and injunctive relief for any breach or anticipated
breach of this Section.
(d) SURVIVAL. The provisions of this Section shall survive the expiration
or other termination of this Agreement.
20. SEVERABILITY
If any provision of this Agreement is held to be unenforceable or invalid,
that provision shall be severed from this Agreement and the remainder of this
Agreement shall remain in full force and effect.
21. CHOICE OF LAW
This Agreement and any disputes, actions or other proceedings arising under
or relating to it shall be governed by law of the State of Illinois without
regard to its principles of conflicts of law.
22. NO WAIVER
No failure or delay on the part of any party hereto in exercising any power
or right under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No waiver by any
party of any provision of this Agreement, nor of any breach or
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default, shall be effective unless in writing and signed by the party against
whom such waiver is to be enforced.
23. AGREEMENT NON-ASSIGNABLE
Any assignment of this Agreement in whole or in part by a party without the
prior written consent of the other parties thereto shall be void and shall vest
no rights in the assignee.
24. EXHIBITS AND SCHEDULES
The Exhibits and Schedules to this Agreement are a part of this Agreement
as if set forth in full herein.
25. HEADINGS
The headings herein are for the purpose of convenience only and have no
legal force, meaning or effect.
26. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and there are no warranties, representations and/or
agreements between the parties in conjunction with the subject matter hereof
except as set forth in this Agreement. This Agreement, including any Schedule
or Exhibit hereto, may be amended or modified only by written instrument,
executed by duly authorized officers of the parties.
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be
executed as of the date first above written.
LIFE INSURANCE SOLUTIONS, L.L.C. XXXXXX INVESTORS LIFE INSURANCE
D/B/A LIS SECURITIES COMPANY
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- --------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxx Xxxxxxx
Title: President, LIS Securities, and Title: SVP
Chief Operating Officer, Life ------------------------
Insurance Solutions, L.L.C.
26
