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EXHIBIT (3)(b)
LIFE INSURANCE SOLUTIONS, LLC
D/B/A LIS SECURITIES
SELLING GROUP AGREEMENT
THIS AGREEMENT ("Agreement") is made by and between Life Insurance
Solutions, LLC, a Delaware limited liability company d/b/a LIS Securities
("LIS"), and the undersigned broker-dealer ("Broker-Dealer").
RECITALS:
A. LIS, pursuant to the provisions of a Distribution Agreement
("Distribution Agreement") between LIS and Xxxxxx Investors Life
Insurance Company ("KILICO"), acts as a distributor of certain variable
annuity contracts and/or variable life insurance policies and any
certificates under those contracts and/or policies (the "variable
products" or "Contracts") issued by KILICO. Such Contracts are
identified in the Schedule of Products attached to this Agreement at
the time that this Agreement is executed, and such other Contracts that
may be added to the Schedule of Products from time to time in
accordance with Section 1.5 of this Agreement. The Schedule of Products
is a part of this Agreement as if set forth herein.
B. Certain of the Contracts identified in the Schedule of Products with
the designation "Private Placement" (the "Private Placement Contracts")
are to be offered pursuant to a disclosure document ("private placement
memorandum" or "PPM") to be delivered to the prospective purchaser of
the variable product described therein in reliance upon certain
exemptions from the requirements of federal securities law for
placements of securities other than by means of a public offering.
Interests in the Private Placement Contracts will not be registered
under the Securities Act of 1933, as amended ("1933 Act"), or the
Investment Company Act of 1940, as amended ("1940 Act"), in reliance
upon exemptions therein.
C. LIS desires that Broker-Dealer distribute KILICO's variable products in
those states or jurisdictions in which Broker-Dealer, LIS, KILICO and
the Contracts are appropriately licensed, qualified or approved, and
Broker-Dealer desires to sell those Contracts, through its agents in
those states or jurisdictions, on the terms and conditions set forth
hereinafter. KILICO has authorized LIS to enter into separate written
agreements with broker-dealers that are registered under the Securities
Exchange Act of 1934, as amended ("1934 Act"), and are members in good
standing of the National Association of Securities Dealers, Inc.
("NASD") and pursuant to which the broker-dealers would be authorized
to participate in the distribution of the Contracts and would agree to
use their best efforts to solicit applications for the Contracts in
accordance with the terms of those agreements.
D. KILICO, pursuant to a General Agent Agreement, has authorized
Broker-Dealer or affiliates to act as a general agent ("General
Agent"), collectively if more than one, for the solicitation of
applications for the Contracts and to engage in the distribution
activities contemplated by this Agreement and that General Agent
Agreement.
E. The parties to this Agreement desire that Broker-Dealer be authorized
to solicit applications for the sale of the Private Placement Contracts
only to "Qualified Purchasers" or "Accredited Investors," as those
terms are defined herein, and the balance of the Contracts to the
general public, subject to the terms and conditions set forth herein.
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NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants hereinafter set forth, the parties agree as follows:
Section 1: Representations and Warranties; Authorizations
1.1 Broker-Dealer agrees to use its best efforts on behalf of LIS while
performing the functions set forth herein. Broker-Dealer shall be free
to exercise its own judgment as to whom and the time, place, and manner
of solicitation except, (a) Broker-Dealer shall only offer the Private
Placement Contracts to (i) an Accredited Investor, which is either an
individual, a corporation, or a trust which applies to KILICO for
insurance upon the life or lives of individuals that it desires to have
insured, and which meets the definition of accredited investor in Rule
501 of the 1933 Act, and (ii) a Qualified Purchaser, which is an
Accredited Investor that satisfies the definition of qualified
purchaser in Section 2(a)(51) of the 1940 Act; and (b) Broker-Dealer
shall not solicit applications for the Private Placement Contracts in
any manner which constitutes a public offering or involves any form of
general solicitation or general advertising. With respect to Qualified
Purchasers, Broker-Dealer shall use a questionnaire in substantially
the form included as Exhibit B to this Agreement to require each
prospective purchaser to represent and warrant that it owns sufficient
"investments" (as defined in Rule 2a51-1 under the 0000 Xxx) to meet
the financial requirements and otherwise meet the requirements of the
appropriate definition of "qualified purchaser" in Section 2(a)(51) of
the 1940 Act. Each Registered Representative (as defined below) of
Broker-Dealer shall keep a record of prospective purchasers with whom
the Private Placement Contracts are discussed or to whom the offering
materials are sent. Broker-Dealer shall also require each Registered
Representative to comply with the requirements of a non-public offering
of the Private Placement Contracts. Broker-Dealer shall pay all
expenses incurred by it hereunder and shall comply in all material
respects with all applicable federal and state laws, ordinances and
regulations relating thereto.
1.2 Broker-Dealer may recommend persons associated with it who are duly
licensed and qualified under applicable law and regulation to act in
the offer or sale of variable products ("Registered Representatives")
for appointment as insurance agents of KILICO. Broker-Dealer is
authorized, except as hereinafter specifically provided, to cause its
Registered Representatives to sell the Contracts in the states and
jurisdictions in which Broker-Dealer and its Registered Representatives
are appropriately licensed, registered or otherwise qualified and in
which the Contracts are duly authorized; provided, however,
Broker-Dealer shall be solely responsible for assuring that no
Registered Representative shall be allowed to participate in the
solicitation or sale of the Contracts unless at the time of the
solicitation or sale that person: (a) is of good character and business
repute as contemplated by the Principles and Code of Ethical Market
Conduct of the Insurance Marketplace Standards Association (the "Code
of Ethical Market Conduct"); (b) has been trained on how to use
information-gathering and analytical tools (including, but are not
limited to, questionnaires, financial plans, customer profiles, and
capital needs and financial needs analyses) for determining clients'
insurable needs and financial objectives and agrees to evaluate
carefully the insurance needs and financial objectives of clients and
use information-gathering and analytical tools to determine that the
insurance or annuity product being proposed meets those needs; (c)
agrees not to make any recommendation to an applicant or prospective
purchaser to purchase a Contract without having reasonable grounds to
believe that the purchase of the Contract is suitable for the applicant
or prospective purchaser or, with respect to the Private Placement
Contracts, in a manner inconsistent with the terms and conditions of
this Agreement; (d) possesses all necessary qualifications to sell the
Contracts, including appropriate licensure by the NASD and all other
applicable state insurance and securities regulatory authorities, has
been appointed as an insurance agent of KILICO, and agrees to maintain
all licenses necessary in connection with the solicitation and sale of
the Contracts; (e) agrees to
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report promptly in writing to KILICO and LIS all customer or regulatory
complaints or inquiries, whether written or oral, and to assist KILICO
and LIS in resolving any complaint to the satisfaction of all parties;
and (f) agrees to abide by the Code of Ethical Market Conduct.
Broker-Dealer shall not have the authority nor shall it grant such
authority to any of its Registered Representatives, on behalf of LIS
and KILICO: to make, alter or discharge any Contract or other contract
entered into pursuant to a Contract; to waive any Contract's forfeiture
provisions; to extend the time of paying any premiums; or to receive
any monies or premiums from applicants for or purchasers of the
Contracts (except for the sole purpose of forwarding monies or premiums
to KILICO). If Broker-Dealer or its Registered Representatives
inadvertently receive any monies from applicants for or purchasers of
the Contracts, as payment of any premium, loan interest, loan
principal, or other payments, they shall hold them in a fiduciary
capacity only and promptly submit them to KILICO. KILICO, in its sole
discretion, may reject any application for a Contract submitted to it
by the Broker-Dealer or any of its Registered Representatives.
1.3 LIS, subject to the terms and conditions contained herein, hereby
authorizes Broker-Dealer as an independent contractor, on a
non-exclusive basis, to make sales of the Contracts for which LIS acts
as distributor. Broker-Dealer agrees to instruct and train its
Registered Representatives in the marketing of the Contracts and the
legal requirements applicable to such marketing. Broker-Dealer shall
direct the sales activities of its Registered Representatives and shall
be solely responsible for the conduct of its Registered Representatives
in the solicitation of applications, subscription agreements, premium
and purchase payments. Further, Broker-Dealer shall be solely
responsible for the supervision of its Registered Representatives and
shall enforce written supervisory procedures to assure strict
compliance with applicable rules and regulations under the 1934 Act,
NASD rules, and other applicable federal and state statutes and
regulations. Further, Broker-Dealer agrees to abide by the Code of
Ethical Market Conduct, a copy of which is attached as Exhibit A to
this Agreement. Broker-Dealer also agrees to engage in active and fair
competition as contemplated by the Code of Ethical Market Conduct.
1.4 Nothing herein contained shall constitute Broker-Dealer or any of its
Registered Representatives as employees of LIS or KILICO in connection
with the solicitation of applications for the Contracts.
1.5 The Schedule of Products may be amended by LIS at its sole discretion
from time to time to include other Contracts distributed by LIS
pursuant to the Distribution Agreement or other distribution agreements
with KILICO, or to delete Contracts from the Schedule. The provisions
of this Agreement shall be equally applicable to each Contract listed
on the Schedule of Products unless the context otherwise requires.
Section 2: Representations and Warranties; Registration, Licensing and
Compliance
2.1 Broker-Dealer represents and warrants to, and covenants with, LIS that:
a. It is and will remain at all times during the term of this
Agreement a member in good standing of the NASD and a
broker-dealer duly registered with the Securities and Exchange
Commission ("SEC") under the 1934 Act and licensed as a
broker-dealer in each state or other jurisdiction in which
Broker-Dealer intends to perform its functions and fulfill its
obligations under this Agreement.
b. It is in compliance in all material respects, and during the term
of this Agreement, will remain in compliance in all material
respects, with all applicable federal and state securities laws
and regulations and the requirements of the NASD and any
applicable securities exchanges of which it is a member.
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c. It is a corporation organized, existing and in good standing under
applicable state law and is qualified to do business as a
corporation in those states or jurisdictions where it is or will
be doing business pursuant to this Agreement.
d. Only Registered Representatives of Broker-Dealer who are agents of
KILICO, and who are licensed, registered, or otherwise qualified
to offer and sell the variable products, may do so under this
Agreement and as permitted under the applicable insurance laws of
such state or jurisdiction under which the Registered
Representatives are authorized to perform their activities.
e. It, or a General Agent or an affiliate of Broker-Dealer, is in
compliance in all material respects with all applicable insurance
laws and regulations, including without limitation state insurance
laws and regulations imposing insurance licensing requirements.
f. It shall carry out its sales and administrative obligations under
this Agreement in continued compliance in all material respects
with federal and state laws and regulations, including those
governing securities and/or insurance-related activities or
transactions, as applicable.
g. It shall give LIS full and unfettered access to data gathered by
it or its Registered Representatives with respect to or arising
out of the solicitation and sale of Contracts pursuant to this
Agreement.
h. It will solicit sales of the Contracts only in those states or
jurisdictions and the manner in which the Contracts may be
lawfully sold.
i. All solicitation and sales activities of Broker-Dealer and its
Registered Representatives will be in compliance with all
applicable state and federal securities laws and regulations, all
applicable insurance laws and regulations, as well as all
applicable NASD rules and regulations.
2.2 Broker-Dealer will be responsible for the training, supervision and
control of its Registered Representatives engaged in the offer and sale
of the Contracts and will supervise strict compliance with applicable
federal and state securities laws, NASD rules, insurance licensing, and
general regulatory requirements. Neither LIS nor any issuer or
principal underwriter of the Contracts shall have any responsibility in
connection with Broker-Dealer's program of supervision and compliance
or any responsibility for failure by Broker-Dealer or its Registered
Representatives to comply with applicable law or regulation.
2.3 Broker-Dealer, through its Registered Representatives or otherwise,
shall not make any recommendations to an applicant or prospective
purchaser to purchase a Contract without having reasonable grounds to
believe that the purchase of the Contract is suitable for the applicant
or prospective purchaser. While not limited to the following, a
determination of suitability shall be based on information supplied to
a Registered Representative after a reasonable inquiry concerning the
applicant's or prospective purchaser's insurance and investment
objectives, financial situation and needs, and where applicable, the
suitability requirements referenced in Section 1.1 of this Agreement.
2.4 Broker-Dealer, through its Registered Representatives or otherwise,
shall not make any misrepresentation or incomplete comparison relating
a Contract for the purpose of inducing an applicant or prospective
purchaser to lapse, forfeit or surrender an existing
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insurance or annuity product in favor of purchasing a Contract or
another insurance or annuity product.
2.5 Broker-Dealer or its Registered Representatives may solicit exchanges
of other insurance contracts for Contracts only when Broker-Dealer can
demonstrate that the exchange would be beneficial to the prospective
purchaser or class of purchasers, provided that the exchange offer is
approved in advance by an NASD-licensed principal of Broker-Dealer.
Broker-Dealer shall maintain records of the basis for any determination
that an exchange would be beneficial to the prospective purchaser,
including the name of the principal approving the exchange offer.
2.6 Broker-Dealer, through its Registered Representatives or otherwise,
shall not: (a) give any information or make any representations or
statements in regard to the Contracts in connection with the offer or
sale of the Contracts that is not in accordance with any PPM,
registration statement, prospectus or statement of additional
information ("SAI") relating to the Contracts, as that PPM,
registration statement, prospectus or SAI may be amended or
supplemented from time to time, or the then effective prospectus or SAI
for an investment company, or in current advertising, sales literature
or other promotional material approved by LIS; or (b) provide
prospective purchasers any written materials other than Prospectuses,
Private Placement Memoranda, and advertising, sales literature, and
other promotional material, approved by LIS in writing.
2.7 If General Agent is an affiliate of Broker-Dealer as reflected in
Recital D to this Agreement, then by engaging in the distribution
activities contemplated by this Agreement, Broker-Dealer represents and
warrants that Broker-Dealer:
a. has obtained a letter from the Staff of the SEC advising
Broker-Dealer that the Staff will not recommend enforcement action
if General Agent is not registered as a broker-dealer with the
SEC; or
b. is relying upon a no-action letter issued by the Staff of the SEC
at the request of a broker-dealer that, also, has a licensed
insurance agent or agency engaged in distribution activities
similar to those contemplated by this Agreement, and where the
Staff did not recommend enforcement action if the insurance agent
or agency was not registered as a broker-dealer with the SEC; and
c. is complying and will continue to comply with the conditions set
forth in that letter at all times while this Agreement is in
effect.
2.8 Broker-Dealer shall notify LIS and KILICO immediately in writing if
Broker-Dealer fails to comply with any of the applicable provisions set
forth above.
2.9 LIS represents and warrants to, and covenants with, Broker-Dealer that:
a. interests in the Private Placement Contracts are exempt from
registration under the provisions of the 1933 Act;
b. the balance of the Contracts are duly registered under applicable
securities laws;
c. all Contracts are legally issued and filed as required by
applicable state insurance laws; and
d. each PPM and all promotional materials issued or approved by LIS
and provided to Broker-Dealer:
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(i) are and will be true, accurate and complete in
all material respects,
(ii) do not and will not contain any false or
misleading statements of material fact or omit any material
facts necessary to make statements contained therein not
misleading in light of the circumstances under which they
are made,
(iii) do and will fully and adequately disclose all
material terms, conditions, limitations and restrictions,
and
(iv) comply and will comply with all applicable laws
and regulations of those jurisdictions in which the
Contracts will be offered.
Section 3: Sales Materials
3.1 Interests in the Private Placement Contracts shall be sold in reliance
upon certain exemptions from federal securities law requirements for
placement of securities other than by means of a public offering.
Consequently, no advertising, sales literature, or other promotional
material will be employed in the sale of the Private Placement
Contracts, other than a PPM, the Private Placement Contract, statements
contained therein, certain client specific analyses and information,
and any authorized supplemental information provided by KILICO or LIS.
Material that has been approved for distribution by LIS may be provided
only to existing Broker-Dealer clients or clients of an affiliate of
Broker-Dealer who are known personally by Broker-Dealer or that
affiliate or their respective representatives, or to lawyers,
accountants or investment advisers of those clients ("Acceptable
Private Placement Clients"). Broker -Dealer and its Registered
Representatives shall not with respect to any Private Placement
Contracts: (i) engage in cold calling; (ii) publish any advertisement,
article, notice or other communication in any newspaper, magazine,
newsletter or similar media or broadcast on TV, radio or cable; and
(iii) hold any seminars or meetings unless each invitee is known to be
an Acceptable Private Placement Client.
3.2 Broker-Dealer and its Registered Representatives are not authorized to
develop or use any sales, training, explanatory, or other materials
without the prior written consent of LIS, and shall use only such
sales, training, explanatory, or other materials that have been
approved by LIS. Broker-Dealer shall submit to LIS, for written
approval in advance of use, all advertising, sales literature, and
other promotional material, as well as all signs, involving the use of
LIS' of KILICO's name or pertaining to the sale of any Contract.
3.3 LIS will file such materials or will cause such materials to be filed
with the SEC, the NASD, and with any state securities regulatory
authorities, as appropriate.
Section 4: Compensation
4.1 Except as otherwise stated herein, Broker-Dealer shall be entitled to
commissions and allowances with respect to sales of the Contracts it
shall make in accordance with the Schedule of Commissions and
Allowances attached to this Agreement, as amended from time to time.
The Schedule of Commissions and Allowances is a part of this Agreement
as if set forth herein. Commissions are payable by LIS or as otherwise
permitted by law or regulations.
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Section 5: Term of Agreement
5.1 This Agreement shall be subject to immediate termination at any time by
Broker-Dealer, or by LIS, upon receipt of written notice to the other
party. The notice shall be delivered personally or mailed to the last
known address of the other party via United States Mail.
5.2 This Agreement shall automatically terminate if Broker-Dealer ceases
doing business in the legal format indicated above its signature on
this Agreement.
5.3 This Agreement may be terminated for cause if Broker-Dealer or its
employees or Registered Representatives have wrongfully withheld any
funds, property or documents belonging to KILICO or LIS; have
misrepresented any product or service offered by or through KILICO; or
have failed to comply with the terms of this Agreement. Upon
termination for cause, Broker-Dealer shall have no further rights or
privileges under this Agreement.
5.4 In the event of termination as provided in this Agreement:
a. Any commissions or allowances remaining payable to Broker-Dealer
and charge-backs payable to LIS shall be paid in accordance with
the provisions contained in the Schedule of Commissions and
Allowances.
b. LIS reserves the right at its discretion to appoint a licensed
broker-dealer to service the business produced under this
Agreement;
c. Broker-Dealer agrees, upon demand, to deliver all of LIS' property
to LIS and shall, upon demand, repay any existing indebtedness
owed to LIS;
d. Broker-Dealer shall carry out all residual obligations which arose
while this Agreement was in force;
e. All compensation payable by LIS to Broker-Dealer with respect to
policies or contracts issued by KILICO shall be paid to
Broker-Dealer until the expiration or other termination of the
Agreement.
f. Broker-Dealer and its Registered Representatives shall promptly
return to KILICO all necessary records that it or they are
required to maintain and that are deemed to be the property of
KILICO.
5.5 This Agreement shall terminate contemporaneously with the termination of the
Distribution Agreement.
Section 6: Complaints and Investigations
6.1 Broker-Dealer shall report promptly in writing to KILICO and LIS all
customer complaints or inquiries relating to the offer and sale of the
Contract or made by or on behalf of any owner of a Contract, whether
written or oral, and shall assist KILICO and LIS in resolving those
complaints to the satisfaction of all parties.
6.2 Broker-Dealer shall cooperate fully in any securities or insurance
regulatory investigation or proceeding or judicial proceeding with
respect to LIS, KILICO, and/or Broker-Dealer and its Registered
Representatives or any affiliate, to the extent that the investigation or
proceeding is in connection with the Contracts marketed under this
Agreement.
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Section 7: Assignment
7.1 Broker-Dealer may not assign this Agreement without the prior written
approval of LIS.
7.2 This Agreement is exclusively for and shall inure to the benefit of the
parties hereto, their successors and assigns, and shall not be deemed
to create any rights for the benefit of third parties.
Section 8: Confidentiality
8.1 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 the 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 the party to perform its duties and exercise its
rights hereunder. In order to safeguard Confidential Information, each
party shall (a) inform each recipient of Confidential Information of
the confidential nature thereof and of the requirements of this
Agreement, (b) direct the recipients to comply with the terms of this
Agreement, and (c) exercise any other precautions necessary to prevent
any improper use or disclosure of Confidential Information.
8.2 Definition. "Confidential Information" shall mean: (a) information
regarding a party's or the 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; (b)
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; (c) any and all
related research; and (d) any and all designs, ideas, concepts, and
technology embodied therein. With respect to the Broker-Dealer,
Confidential Information shall include (e) any information regarding
customers that is provided to LIS hereunder and (f) any information
concerning premium, losses, profitability, expiration dates, and
insured demographics. Information is not considered confidential or
proprietary if that 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.
8.3 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.
8.4 Survival. The provisions of this Section shall survive the expiration
or other termination of this Agreement.
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Section 9: Modification of Agreement
9.1 This Agreement may not be modified in any way unless by written
agreement signed by all of the parties, except for any amendment of the
Schedule of Products pursuant to the terms of Section 1.5 hereof or of
the Schedule of Commissions and Allowances pursuant to the terms of
Section 4 hereof.
Section 10: Indemnification
10.1 Broker-Dealer shall indemnify and hold harmless LIS and each of its
members, managers, officers, employees, affiliates (including, but not
limited to, KILICO), agents, representatives, successors and assigns,
against any loss or expense, including reasonable attorneys' fees,
which arises out of, is based upon, or relates to: (i) any breach by
Broker-Dealer of any representation, warranty, covenant or agreement
contained in this Agreement; (ii) any negligent act or omission or
willful misconduct by Broker-Dealer or any of its Registered
Representatives or affiliates in carrying out their obligations under
this Agreement; or (iii) any failure by Broker-Dealer or any of its
Representatives or affiliates to comply with applicable law.
10.2 If any action or proceeding shall be brought against Broker-Dealer or
any of its Registered Representatives or affiliates relating to a
Contract sold pursuant to this Agreement, Broker-Dealer shall give
prompt written notice to LIS.
10.3 In the event of any dispute with a Contract owner, LIS shall have the
right, with prior written notice and consultation with Broker-Dealer,
to take such action as LIS may deem necessary to promptly effect a
mitigation of damages or limitation of losses, and without waiving or
electing to relinquish any rights or remedies LIS may have against
Broker-Dealer.
10.4 LIS shall have the right to settle with any Contract owner engaged in a
dispute with LIS or Broker-Dealer without the prior consent of
Broker-Dealer and without waiving or electing to relinquish any rights
or remedies LIS may have against Broker-Dealer.
10.5 The provisions of this Section shall survive the expiration or other
termination of this Agreement. All rights and remedies of the parties
hereunder shall be cumulative and in addition to all rights and
remedies available to those parties at law or in equity.
Section 11: Rights, Remedies etc. are Cumulative
11.1 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled
to under state and federal laws. Failure of either party to insist upon
strict compliance with any of the conditions of this Agreement shall
not be construed as a waiver of any of the conditions, but the same
shall remain in full force and effect. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute a
waiver of any other provisions, whether or not similar, nor shall any
waiver constitute a continuing waiver.
Section 12: Notices
12.1 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:
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a. TO LIS:
LIS Securities
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
b. TO BROKER-DEALER:
Attention: General Counsel
Fax:
12.2 A party may change its address or fax number for the delivery of
notices by delivering a written notice to the other parties at its last
specified address. All notices shall be effective upon delivery, except
as otherwise provided in Section 5.2 of this Agreement; 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.
Section 13: Arbitration
13.1 Any disagreement, dispute, claim or controversy arising out of or
relating to this Agreement, performance hereunder or the breach hereof,
or otherwise arising between Broker-Dealer and LIS, shall be subject to
mandatory arbitration under the auspices, rules and bylaws of the NASD,
to the full extent applicable and as may be amended from time to time.
13.2 Where the NASD Code of Arbitration Procedure is not applicable, any
dispute between Broker-Dealer and LIS arising under or relating to this
Agreement shall be settled by compulsory arbitration before one
arbitrator in accordance with the Commercial Arbitration Rules then in
force of the American Arbitration Association. The arbitration shall
take place in New York unless the parties agree on another location.
The arbitrator shall have no authority to issue any decision or award
for punitive damages or for treble or any other type of multiple
damages, consequential damages, or any compensatory damages based on a
claim of lost profits or similar claim. Each party shall bear its own
costs and expenses incurred by it in any such arbitration, except that
the parties shall bear the expenses of the arbitrator's services
equally. The provisions of this Section shall survive the expiration or
other termination of this Agreement.
Section 14: Audit
14.1 Each party shall, upon reasonable notice to the other party, have the
right to audit the books and records of the other party regarding
information directly related to this Agreement, during the other
party's normal business hours or by appointment, at such times as the
auditing party reasonably deems necessary. The party being audited
shall permit reasonable access to any of its facilities or any of its
affiliates' facilities in which information pertaining to this
Agreement is being processed or stored. Upon the auditing party's
request, the other party shall provide reasonable assistance in
performing the audit, including any audit required or requested by any
federal, state, or local regulatory
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authority having jurisdiction over the auditing party's business. The
auditing party shall reimburse the party being audited for its
reasonable out-of-pocket costs and expenses incurred in connection with
the audit. The provisions of this Section shall survive the expiration
or other termination of this Agreement.
Section 15: Interpretation, Jurisdiction, etc.
15.1 This Agreement constitutes the whole agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all
prior oral or written understandings, agreements or negotiations
between the parties with respect to the subject matter hereof. No prior
writings by or between the parties hereto with respect to the subject
matter hereof shall be used by either party in connection with the
interpretation of any provisions of this Agreement.
15.2 This Agreement is made in the State of New York, and all questions
concerning its validity, construction or otherwise shall be determined
under the laws of New York without giving effect to principles of
conflict of laws.
Section 16: Headings
16.1 The headings in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
Section 17: Counterparts
17.1 This Agreement may be executed in two or more counterparts, all of
which taken together shall constitute one and the same instrument.
Section 18: Severability
18.1 This is a severable Agreement. In the event that any provisions of this
Agreement would require a party to take action prohibited by applicable
federal or state law or prohibit a party from taking action required by
applicable federal or state law, then it is the intention of the
parties hereto that the provisions shall be enforced to the extent
permitted under the law, and, in any event, that all other provisions
of this Agreement shall remain valid and duly enforceable as if the
provision at issue had never been a part hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year indicated below.
LIFE INSURANCE SOLUTIONS, LLC D/B/A LIS SECURITIES
By: Date:
---------------------------- -------------------------
Title:
--------------------------
BROKER-DEALER
("BROKER-DEALER")
By: Date:
---------------------------- -------------------------
Title:
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