MARKETING AGREEMENT
This Marketing Agreement is made and entered into and effective as of June 5,
2002, by and between the parties as follows:
Investors Insurance Corporation ("IIC"), a Delaware corporation, and Legacy
Marketing Group ("LMG"), a California corporation, based on the following facts:
A. Concurrently herewith, LMG and IIC are entering into an Administrative
Services Agreement pursuant to which certain insurance business is to
be administered by LMG.
B. The objective of this Agreement is to provide an arrangement to sell
certain contracts ("Contracts") of IIC as specified in APPENDIX A.
C. LMG is engaged in the business of marketing insurance products
nationally and has developed a significant marketing operation and
sales force, identified as Producers: duly licensed and appointed
independent insurance agents; and Wholesalers: duly licensed and
appointed independent insurance agents or agencies who are
predominately responsible for recruiting, training and managing
Producers.
D. IIC desires to have LMG utilize its marketing operation and sales force
for the solicitation of the Contracts in the geographic territory
specified in APPENDIX A.
Based on the foregoing facts, LMG and IIC ("the parties") agree as follows:
1. DESIGNATION OF LMG AND SCOPE OF LMG'S AUTHORITY
1.1 IIC designates LMG to recruit and appoint Wholesalers and
Producers in the solicitation of the Contracts in the
geographic territory specified in APPENDIX A (the
"Territory").
1.2 LMG is designated by IIC for the purpose of soliciting
applications through LMG's Wholesalers and Producers the
Contracts referenced in APPENDIX A and otherwise transacting
the business of this Agreement. LMG accepts such designation
and agrees to use its best efforts to comply with all
applicable laws and regulations and to diligently devote
itself to the business of this designation to support sales of
the Contracts referenced in APPENDIX A.
1.3 LMG will enter into Wholesaler and Producer Agreements, in the
form attached as APPENDIX D with each new Wholesaler and
Producer, to which IIC will not be a party and shall have no
obligation or liability thereunder.
1.4 It is understood and agreed that LMG is an independent
contractor, and nothing herein shall be construed to create
the relationship of employer or employee between IIC and LMG
or between IIC and any officer, employee, Wholesaler,
Producer, or other associated person of LMG. Neither LMG nor
any Wholesaler or Producer has authority to incur any
liability on behalf of, or to bind, IIC in any way or change
its rights, duties, or obligations, except as may be set forth
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in the Administrative Services Agreement between IIC and LMG,
executed concurrently herewith. LMG understands that IIC
retains the authority to accept or reject any Contract
application submitted by any Wholesaler or Producer.
1.5 All Wholesalers and Producers who have been recruited and are
appointed to sell the Contracts referenced in APPENDIX A by
LMG shall be identified by IIC as Wholesalers and Producers of
LMG as to such Contracts. Any and all contracts entered into
by and between such Wholesalers or Producers with respect to
such Contracts shall be coded by LMG onto its system and
deemed Wholesalers and Producers of LMG. IIC may not terminate
IIC's appointment of any Wholesaler or Producer, without LMG's
written consent, unless termination is for cause. IIC will
provide prior written notice of any termination with cause.
IIC may not terminate, recode, or otherwise disturb the
relationship between LMG and Wholesalers and Producers with
respect to the Policies without the prior written consent of
LMG.
2. RIGHTS AND OBLIGATIONS OF IIC
2.1 It is acknowledged by both IIC and LMG that certain
obligations of IIC hereunder are to be performed by LMG as a
servicing organization, pursuant to the Administrative
Services Agreement between IIC and LMG. This does not relieve
IIC of any of its duties and obligations unless the specific
service is provided for in the Administrative Services
Agreement, executed concurrently herewith, or in this
Marketing Agreement, whereby LMG has explicitly acknowledged
the responsibility of the service.
2.2 APPENDIX B will provide for the compensation payable to LMG
from IIC. APPENDIX B will be amended to conform with each new
product specification as it is developed and finalized. The
marketing allowance and commissions may vary with the
development of each new product. Such marketing allowance will
be specifically provided for in APPENDIX B, or any subsequent
amendments pertaining to new products.
2.3 The commissions specified in APPENDIX B shall be modified
whenever necessary to conform to the legal requirements of any
state. Furthermore, IIC reserves the right to withdraw its
Contracts from any state or other jurisdiction with ninety
(90) days written notice to LMG, unless otherwise mutually
agreed upon in writing or unless mandated by any law,
regulation, regulatory authority, or court of law to do so
sooner. Further, if IIC withdraws any Contract that is
actively marketed by LMG, IIC shall reimburse LMG for the
costs of all marketing materials used solely in such
jurisdiction, including, but not limited to, the costs of
developing such marketing materials, unless otherwise mutually
agreed upon in writing.
2.4 IIC shall have the sole responsibility for maintaining and
filing, and the costs associated with the filing, advertising
materials in those states that so require prior to approving
their use by LMG. In addition, IIC shall use its best efforts
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* Confidential information omitted and filed separately with the SEC.
to ensure a timely response to LMG's submission of marketing
materials requiring approval by IIC. IIC agrees to the
following objectives in terms of service standards for IIC in
supporting the marketing activities LMG:
Description Turnaround Times
Advertising * hours
Policy/Forms * business days
Marketing Materials * business days
Education Materials * business days
Market Conduct Materials * business days
Failure to meet these standards does not constitute a
violation of this Agreement between IIC and LMG, but the
parties agree to take appropriate management action to correct
any problems in an effort to meet these standards.
2.5 IIC shall provide LMG with written notice of any change of
authority of persons authorized and enumerated in APPENDIX C
to provide LMG with instructions or directions relating to
services to be performed by LMG under this Agreement. In the
absence of notice and LMG relies to its detriment on
instructions or directions from one who is no longer
authorized but otherwise acting within the scope of his
authority, IIC will indemnify LMG for any loss or claim as a
result of such reliance.
2.6 It is understood between the parties that IIC will have
confidential information regarding LMG's Producers and
Wholesalers. IIC expressly covenants and agrees that it will
not, for any reason whatsoever, during the term of this
Agreement and *, intentionally, directly, or knowingly use
such confidential information to solicit and/or recruit such
Producers and Wholesalers of LMG. If * is solicited by a * of
*, * will contact * in writing to receive authorization to
work with such individual. With prior written authorization, *
may contract with such * but only on products offered by *
that are not jointly developed with *.
2.7 IIC shall pay all license or royalty fees for use of any
intellectual property belonging to a third party that is used
with any Contracts in APPENDIX A, except to the extent of any
intellectual property used by LMG in connection with
performing its services pursuant to the Administrative
Services Agreement between the parties or this Agreement.
Notwithstanding the foregoing, if this Agreement or the
Administrative Services Agreement terminates and IIC desires
to process or perform any services for which LMG had
previously been responsible, IIC shall be required to obtain
all licenses and pay any royalty fees on its own behalf to the
extent IIC wishes to use such intellectual property.
2.8 IIC shall be responsible for the cost of filing the Contract
forms with applicable regulatory authorities pertaining to the
business underwritten by IIC that is jointly developed with
LMG, including the costs of obtaining "opinion letters" on
such products. "Contract forms" shall include, but are not
limited to, master contract forms, riders, endorsements,
certificates, notices, disclosures, or administrative forms.
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* Confidential information omitted and filed separately with the SEC.
Further, IIC shall have the sole responsibility for filing
such Contract forms. In addition, IIC shall have the sole
responsibility for drafting and the costs of any required
group trusts. LMG will assist in the drafting, completion, and
preparation of filing of such Contract forms. If IIC
authorizes LMG to contract with outside consultants to assist
in the Contract form preparation or to expedite the Department
of Insurance approval process, IIC shall reimburse LMG for
such expenses. Further, IIC must approve LMG's choice of such
filing consultant
3. RIGHTS AND OBLIGATIONS OF LMG
3.1 At all times during the term of this Agreement, LMG (or the
licensed individual who is acting on behalf of LMG in the
capacity of an Officer in such states that do not permit the
licensing of corporations) and all Wholesalers and Producers
shall be properly licensed with each state or other
jurisdiction and properly appointed with IIC in each state or
other jurisdiction within the Territory before engaging in any
activity that under the laws of such state or other
jurisdiction makes such licensing and appointment necessary.
Without limiting the generality of the foregoing, LMG shall
require all such Wholesalers and Producers to, at all times,
bear the cost of maintaining all licenses required by any such
state, it being understood that IIC is not responsible for
licensing fees or other costs of licensing.
3.2 LMG will itself and will communicate to and cause each
Wholesaler and Producer to use only forms, applications,
advertising (as such term is generally defined by the
regulation of the state or other jurisdiction in which
Contracts, referenced in APPENDIX A, are solicited), guides,
and rules furnished, authorized, or promulgated by IIC and
agreed to by both parties and in each state or other
jurisdiction where any Wholesaler or Producer solicits
Contracts, referenced in APPENDIX A. No written advertising or
sales materials of any kind, including sales illustrations, or
recruiting material referencing the Contracts, referenced in
APPENDIX A, of IIC shall be authorized by LMG until after it
has been approved in writing by IIC. LMG will provide such
materials with sufficient lead time to allow appropriate
review by IIC. IIC will then use its best efforts to provide a
timely response, as indicated in section 2.4 of this
Agreement.
3.3 LMG agrees to maintain the following insurance coverage:
(a) LMG will possess an adequate fidelity bond for any
losses caused by the dishonesty of LMG's employees or
agents (not Wholesalers or Producers) with limits of
at least *. LMG will also maintain an adequate surety
bond(s) as so required in the states in which it is
compelled to do so. LMG will file such bond, if so
required, with the appropriate agency. The bond shall
be executed by a corporate insurer authorized to
transact business in the states that mandate the
maintenance of such bond.
(b) LMG will possess and maintain at all times errors and
omissions coverage with a limit of not less than *
written by an insurer with a minimum A.M. Best rating
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* Confidential information omitted and filed separately with the SEC.
of A-. Such coverage will comply with the
requirements of the states in which such insurance
coverage is required.
(c) LMG will possess and maintain commercial, general,
and liability insurance with limits of not less than
* per occurrence combined single limit.
(d) LMG will require, as part of the appointment process,
Wholesalers and Producers to provide proof of errors
and omissions coverage. If the Wholesaler or Producer
does not maintain the requisite errors and omissions
insurance coverage, LMG will purchase errors and
omissions insurance coverage on a per policy basis on
behalf of Wholesaler or Producer, with coverage of *
per Wholesaler and Producer, or per occurrence. LMG
will deduct all or a portion of Producer's
commissions to satisfy any indebtedness associated
therewith.
3.4 In performance of its marketing obligations and duties, LMG
will not , and will inform via e-mail, facsimile, mailings, or
posting to LMG's website, its Wholesalers or Producers
appointed hereunder in the performance of their obligations
and duties hereunder, of the restriction against any of the
following (where applicable):
(a) Enter into any agreement or incur any obligation on
behalf of IIC, except with IIC's written permission,
or commit IIC to:
(i) Pay any money to any such Wholesaler,
Producer, or employee.
(ii) A date that a payment will be made.
(b) Assign this Agreement or any compensation, other than
commissions payable to Wholesalers and Producers,
payable under it without the prior written consent of
IIC.
(c) Solicit applications for IIC in any manner prohibited
by, or inconsistent with, the provisions of this
Agreement or the rules and regulations mutually
agreed by both parties, now or hereafter in force.
(d) With respect to any Contract:
(i) Make any alterations, modifications, or
endorsements or otherwise alter IIC's
obligations as stated in the Contract, as
referenced in APPENDIX A.
(ii) Adjust or settle any claim; except as
provided for in the Administrative Services
Agreement, executed concurrently herewith.
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(e) Initiate any civil or criminal action or proceeding,
whether or not brought in the name of IIC, which may
in any way involve or affect IIC, its affiliates,
their business, operations, or any Contract, as
referenced in APPENDIX A, issued by IIC. The
foregoing shall not be construed as a waiver of any
other right or entitlement hereunder, at law or in
equity, that LMG may have to enforce its rights
arising out of this Agreement.
(f) Use or authorize the use of any written, oral, or
visual communication, circular, advertisement, or
other publication except as follows:
LMG agrees that it will not place into use, or
distribute to any person, any advertising, sales
material, or other document (including, without
limitation, illustrations, telephone scripts, and
training materials) referring directly or indirectly
to IIC or its Contracts, or cause, authorize, or
permit any person to do so, without IIC's prior
written consent. LMG agrees that it will not use the
name of IIC on any business card, letterhead,
website, or marquee or in any directory listing, or
in any other manner, or cause, authorize or permit
any Producer or other person to do so, without IIC's
prior written consent.
(g) Knowingly, intentionally, or willfully violate the
insurance laws or regulations of any regulatory
authority of any state or any other jurisdiction in
which LMG represents IIC.
(h) Embezzle or knowingly, intentionally, or willfully
misapply funds of IIC or any other person or entity.
(i) Perpetrate any fraud against IIC or any other person
or entity.
The Producer Agreement in the form attached hereto as APPENDIX
D contains similar requirements as those listed in this
Section 3.5.
3.5 LMG agrees that the compensation payable pursuant to Section
2.2 shall be accepted by it as full compensation from IIC for
its marketing services hereunder, except as otherwise agreed
by mutual written consent of LMG and IIC.
3.6 LMG will be solely responsible for any commissions to be paid
to Wholesalers or Producers, which are earned as a result of
selling IIC products through LMG, except as hereafter provided
in Section 8 of this Agreement.
3.7 LMG shall have no authority, nor shall it represent itself as
having such authority, other than as specifically set forth in
this Agreement. Without limiting the generality of the
foregoing sentence, LMG specifically agrees that it will not
do any of the following without the prior written consent of
IIC:
(a) Litigation: Institute, prosecute, or defend any legal
proceedings in connection with any matter pertaining
to the offering and/or sale of the Contracts
identified in APPENDIX A.
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(b) Alterations: Waive, amend, modify, alter, terminate,
or change any term, provision, or condition stated in
any Contract or discharge any contract in the name of
IIC.
(c) Advice to Wholesalers or Producers/prospective
Wholesalers or Producers: Offer tax, legal, or
investment advice to any Wholesaler or Producer or
prospective Wholesaler or Producer of IIC under any
circumstances, with respect to a contract.
Notwithstanding the foregoing, LMG shall not be
prohibited from providing detailed information
regarding the features of the Contracts.
4. ASSIGNMENT, MODIFICATION, AND TERMINATION OF AGREEMENT
4.1 Neither party may assign or delegate all or any part of its
rights and/or duties under this Agreement without the written
consent, as signed by one or more of the personnel shown on
APPENDIX C, of the granting party.
4.2 This Agreement may be modified or amended at any time by
mutual agreement of the parties, provided the modification or
amendment is in writing, signed by authorized personnel, as
provided in APPENDIX C of this Agreement.
4.3 The termination of this Agreement is governed by the following
provisions:
(a) LMG or IIC may terminate this Agreement without cause
by twelve (12) months written notice to the other.
This Agreement may be terminated by mutual agreement
of the parties in writing at any time. The
terminating party shall provide written notice of
termination or cancellation of this Agreement to the
appropriate departments of insurance within fifteen
(15) days of such termination, if, and to the extent
required by, applicable law or regulation. LMG and
IIC shall fulfill any lawful obligations with respect
to such contracts affected by this Agreement,
regardless of any dispute between LMG and IIC.
(b) If either of the parties hereto shall materially
breach this Agreement or be materially in default in
the performance of any of its duties and obligations
hereunder (the "Defaulting Party"), the aggrieved
party hereto may give written notice thereof to the
Defaulting Party and if such default or breach shall
not have been remedied within forty-five (45) days
after such written notice is given, then the
aggrieved party may terminate this Agreement by
giving thirty (30) days written notice of such
termination to the defaulting party. This Agreement
shall terminate immediately upon expiration of the
30-day notice period.
(c) Notwithstanding anything herein to the contrary, IIC
or LMG may immediately terminate this Agreement with
cause, upon written notice to the other. Cause
includes, without limitation, acts or omissions that
constitute fraudulent, criminal, or grossly unethical
activity or blatant disregard for the terms and
conditions of this Agreement.
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(d) Termination of this Agreement by default or breach by
IIC shall not constitute a waiver of any rights of
LMG in reference to services performed prior to such
termination; termination of this Agreement by default
or breach by LMG shall not constitute a waiver by IIC
of any other rights it might have under this
Agreement.
(e) Termination of this Agreement does not affect in any
way the Administrative Services Agreement executed
concurrently herewith.
4.4 Subject to termination as provided in Section 4.3 of this
Agreement, this Agreement shall remain in force and effect
until the close of business on March 31, 2007, the term of
this Agreement. This Agreement shall be renewed automatically
for successive terms of one (1) year unless terminated by
either party by prior written notice to the other at least
twelve (12) months prior to the end of the initial term or the
renewal term.
5. HOLD HARMLESS AND INDEMNIFICATION
5.1 LMG shall indemnify and hold harmless IIC from any and all
claims, liability, costs, and expenses, including reasonable
attorneys' fees, arising out of LMG's negligent act(s) or
omission(s); LMG's refusal to comply with the terms of this
Agreement; LMG's failure to comply with any law or regulation
with respect to its duties hereunder except that LMG shall not
be required to indemnify or hold harmless IIC for any act or
omission of LMG that which was directed orally or in writing
by IIC unless LMG knew that such direction by IIC was contrary
to applicable law or regulation or was otherwise contrary to
good business practices and LMG failed to advise IIC.
5.2 IIC shall indemnify and hold harmless LMG from any and all
claims, liability, costs, and expenses, including reasonable
attorneys' fees arising out of IIC's negligent act(s) or
omission(s); IIC's refusal to comply with the terms of this
Agreement; IIC's failure to comply with any law or regulation
with respect to the offering or sale of contracts, or the
records maintained. LMG may rely on instructions of any person
indicated on IIC's "Schedule of Authorized Personnel,"
attached hereto as APPENDIX C. Each such person is authorized
to give instructions under this section with respect to any
matter arising in connection with this Agreement. LMG shall
not be liable for, and shall be indemnified by IIC against,
any losses arising from any action taken or omitted by LMG in
good faith on reliance upon such instruction.
5.3 Neither party shall be entitled to indemnification from the
other party for any claim resulting from its own negligent
act(s) or omission(s).
5.4 If any claim is made by a party which would give rise to a
right or indemnification under paragraph 5.1, the party
entitled to indemnification (the "Indemnified Party") promptly
will give notice of the claim to the party required to provide
indemnification (the "Indemnifying Party"). The Indemnifying
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* Confidential information omitted and filed separately with the SEC.
Party shall have the right, at its option and its own expense
and by its own counsel, to participate in the defense of any
such indemnified claim for which indemnification is provided
by this Agreement. Notwithstanding the foregoing, the
Indemnifying Party shall not have the right to control or
represent the Indemnified Party in the defense of any claim.
6. RIGHTS AND OBLIGATIONS OF BOTH PARTIES
6.1 During the term of this Agreement, * agrees not to develop any
proprietary products with any *, who was not an existing agent
of * or any of its affiliates as of the effective date of this
Agreement, without the express written approval of * since the
termination of such Wholesaler or Producer in connection with
this Agreement.
6.2 Any Agent for IIC who desires to sell the IIC-LMG proprietary
products will need to contract with LMG to sell such product.
6.3 IIC and LMG agree to provide the other with ninety (90) days
written notice of any intent to make significant changes or
modifications to any Contract or Contract form for products
co-developed by IIC and LMG, except to the extent of any
charge or modification that is necessary to conform to
applicable law or regulation. Both parties will make best
efforts to achieve a satisfactory resolution to the cause of
the proposed changes and may also agree to extend the
timeframe to implement such change if such change is pursued,
unless otherwise mutually agreed upon in writing by LMG and
IIC.
6.4 Each party shall be excused from performance for any period
and to the extent that the party is prevented from performing
any services, in whole or in part, as a result of delays
caused by an act of God, war, terrorism, civil disturbance,
court order, labor dispute, or other cause beyond that
parties' reasonable control, including failures or
fluctuations in electrical power, heat, light, air
conditioning, or telecommunications equipment and such
nonperformance shall not be a default or a ground for
termination.
6.5 LMG and IIC shall each be liable for * of the net debit
balances (outstanding commission debit balances less any debit
amounts recovered via collection efforts) incurred by
Wholesalers and Producers that are mutually agreed in writing
to be deemed uncollectible.
7. PROPRIETARY AND CONFIDENTIAL INFORMATION
7.1 LMG acknowledges that certain information received from IIC
including, without limitation, information concerning IIC
customers or consumers, may be proprietary and/or confidential
in nature. All such information shall be used by LMG solely
for purposes of soliciting Contracts pursuant to this
Agreement or for providing services pursuant to the
Administrative Services Agreement between the parties. LMG
agrees to indemnify and hold IIC harmless from any and all
loss and expenses sustained by IIC as a result of the
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unauthorized use of proprietary and/or confidential
information by LMG.
7.2 IIC acknowledges that certain information received from LMG
may be proprietary and/or confidential in nature. All such
information shall be used by IIC solely for purposes
contemplated by, and in a manner that is consistent with, this
Agreement or the Administrative Services Agreement between the
parties. IIC agrees to indemnify and hold LMG harmless from
any and all loss and expenses sustained by LMG as a result of
the unauthorized use of proprietary and/or confidential
information by IIC.
7.3 LMG will not knowingly disclose any customer information
provided to it by or on behalf of IIC to any affiliated or
unaffiliated third party except to the extent reasonably
necessary to satisfy the purpose for which the customer
information was provided to LMG, and provided that LMG will
impose on such third party the same confidentiality
requirements that LMG is required to abide by with respect to
the customer information.
7.4 LMG will not knowingly use customer information for any
purpose other than the specific purpose for which it was
provided to LMG by or on behalf of IIC, and will make customer
information available to its employees only as reasonably
necessary to satisfy the purpose for which the customer
information was provided to LMG.
7.5 This Agreement shall be in addition to any confidentiality
provisions in this Agreement between the parties; provided,
however, that in the event of a conflict, the provision that
provides the most confidentiality or security protection for
customer information shall prevail.
7.6 Notwithstanding the foregoing, if such customer information
shall be necessary to comply with the requirements of any law,
government order, or regulation, LMG shall not be deemed in
breach of this Agreement for disclosure relating thereto
during the ordinary course of business.
7.7 LMG and IIC shall each have in place reasonable security
measures to safeguard the confidentiality of the other's
proprietary and confidential information and the nonpublic
information of consumers and customers in their possession.
8. VESTING OF RENEWAL COMMISSIONS
8.1 LMG, its successors, executors, assigns, or administrators are
vested as to commissions provided in APPENDIX B, and shall
continue to receive commissions on premiums on Contracts
received by IIC for as long as the Contract remains in force.
8.2 In the event of any dispute between LMG and IIC, IIC shall
continue to pay to LMG any commissions (including renewal and
trailing) due to any Wholesaler or Producer that were earned
prior to such dispute, except to the extent such
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* Confidential information omitted and filed separately with the SEC.
commissions are disputed by IIC. Furthermore, in the event of
the termination of this Agreement, IIC will remain liable to
LMG for the commission payment due to Wholesalers and
Producers to which they may have become entitled prior to the
effective date of termination, to the extent that IIC has not
previously remitted such commissions to LMG. IIC shall either
pay any outstanding commissions directly to the Producer or
Wholesaler or to LMG, which will remit such monies to the
appropriate Producer or Wholesaler. IIC will provide written
notice to LMG of its election to pay such commissions directly
to the Producer or Wholesaler or to LMG. Upon written notice,
LMG will use its best efforts to provide IIC with information
concerning the Producer(s) and transaction(s) required to pay
such commissions.
9. NON-COMPETE PROVISION
9.1 IIC agrees that it will not, during the term of this Agreement
and for a * after the termination of this Agreement, sell or
market any insurance product with features or specifications
that are substantially similar to those unique features
conceived by LMG in any proprietary product developed by LMG
and IIC, with any individual or entity other than LMG. LMG
agrees that it will not, during the term of this Agreement and
for a * after the termination of this Agreement, sell or
market any insurance product with features that are
substantially similar to those unique features conceived by
IIC in any proprietary product that was developed by LMG and
IIC. APPENDIX A shall identify all proprietary products with
any unique feature of LMG and IIC. However, if *.
10. GENERAL PROVISIONS
10.1 The parties agree this Agreement is an honorable undertaking
and agree to cooperate each with the other in carrying out its
provisions.
10.2 Each party will cause its employees to, upon receipt of any
summons or other notice of suit or regulatory authority
inquiry wherein the other party is named in any manner,
forward any and all such documents within five (5) business
days to the attention of the other party by facsimile, express
or overnight mail, or courier.
10.3 The waiver of any breach of any term, covenant, or condition
of this Agreement shall not be deemed a waiver of any
subsequent breach of the same or any other term, covenant, or
condition. No term, covenant, or condition of this Agreement
shall be deemed to have been waived unless such waiver is in
writing signed by the party charged therewith.
10.4 For any notice under this Agreement, notice shall be
sufficient and effective five (5) business days after deposit
in the U.S. Mail, postage prepaid, return receipt requested,
or upon receipt if delivered personally or by fax or delivery
service. Such notice shall be directed as follows:
To LMG: Legacy Marketing Group To IIC: Investors Insurance Corporation
Xxxxxxx Xxxxx, President Xxxxx X. Xxxxxx, EVP
0000 Xxxxxx Xxxxxx 0000 Xxxxxxx Xx.
Xxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
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With copy to: Xxxx Xxxxx With copy to: SCOR Life Re
Xxxxxx Xxxxxxx & Xxxxxxxxxx, LLP Xxxx Xxxxxx, CEO
80 Peachtree Park Dr. 00000 Xxxxxx xxxxxxx,
Xxxxxxx, XX 00000 Xxxxx 000
Xxxxxxx, XX 00000
10.5 To the extent that the rules and regulations do not conflict
with the terms of this Agreement, LMG and IIC will conform to
the rules and regulations as mutually agreed upon by LMG and
IIC. This provision shall not be construed to alter the
relationship of the parties as provided above.
10.6 Each party expressly represents and warrants that it has the
authority to enter into this Agreement and that it is not or
will not be, by virtue of entering into this Agreement or
otherwise, in breach of any other agreement with any other
insurance company, association, firm, person, or corporation.
Each party warrants that the other party will be free from
interference or disturbance in its use of all products,
advertising, marketing techniques, and all information
provided by the originating party.
10.7 This Agreement shall be binding upon the successor and
assignees of IIC as well as upon LMG's successor and
permissive assignees.
10.8 The persons signing this Agreement on behalf of IIC and LMG
warrant, covenant, and represent that they are authorized to
execute this document on behalf of such corporations pursuant
to their bylaws or a resolution of their board of directors.
10.9 This Agreement, including APPENDICES A, B, and C, attached and
the provisions thereof, and the Administrative Services
Agreement referenced on the first page hereof constitute the
entire agreement between the parties. The parties acknowledge
that the rights and obligations set forth in this Agreement
does not affect the rights and obligations in the
Administrative Services Agreement. This Agreement shall be
governed and construed in accordance with the laws of the
state of California. Any similar agreement signed prior to the
execution dates below is null and void and abrogated hereby.
No change, waiver, or discharge shall be valid unless in
writing and signed by an authorized representative of the
party against whom such change, waiver, or discharge is sought
to be enforced. No delay or omission by either party to
exercise any right or power shall impair such right or power
or be construed as a waiver. A waiver by either of the parties
of any of the covenants to be performed by the other or any
breach shall not be construed to be a waiver of any succeeding
breach or of any other covenant.
10.10 LMG shall provide reasonable access during normal business
hours to any location from which LMG conducts its business and
provides services to IIC pursuant to this Agreement to
auditors designated in writing by IIC for the purpose of
12
* Confidential information omitted and filed separately with the SEC.
performing audits for IIC. IIC shall give thirty (30) days
written notice for any normal and customary audits. An agenda
including the matters which it will audit shall be provided at
least fourteen (14) days in advance. Provided that adequate
notice is given, LMG shall provide the auditors any assistance
they may reasonably require. Such auditors shall have the
right during normal business hours to audit any business
record, activity, procedure, or operation of LMG that is
reasonably related to the business marketed under this
Agreement.
10.11 IIC shall be responsible for researching, obtaining, and
registering with the U.S. Patent and Trademark Office service
marks to be used in connection with the products jointly
developed by LMG and IIC, and any costs associated therewith,
and IIC shall own all rights arising therefrom. If IIC desires
that LMG seek registration of a service xxxx on its behalf,
IIC shall reimburse LMG. IIC grants to LMG a non-exclusive,
royalty-free license for the term of this Agreement for the
use of such marks in connection with the performance of LMG's
obligations hereunder, subject to IIC's quality control
guidelines with respect thereto. Notwithstanding the
foregoing, LMG may register and own its own marks that may be
used by LMG to market products jointly developed by LMG and
IIC that are underwritten by IIC. Further, LMG grants to IIC
the right to place IIC's marks on LMG and IIC proprietary
products. Each party will not use the other's service marks,
trademarks, and trade names, or the name of any affiliate of
the other, in any way or manner not specifically authorized in
writing by the other.
10.12 In no event and under no circumstances, however, shall either
party under this Agreement be liable to the other party under
any provision of this Agreement for lost profits or for
exemplary, speculative, special, consequential, or punitive
damages.
10.13 Any controversy or claim arising out of or relating to this
Agreement, or any claimed breach thereof, or arising out of or
relating to the relationship between the parties shall be
settled by arbitration administered by the American
Arbitration Association, in San Francisco, CA, under its
Commercial Arbitration Rules, and the judgment on the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
10.14 If any clause, paragraph, term, or provision of this Agreement
shall be found to be void or unenforceable by any court of
competent jurisdiction, such clause, paragraph, term, or
provision shall be severed from the Agreement, and such
findings shall not affect the remainder of this Agreement.
10.15 During the term of this Agreement and for * thereafter, IIC
and LMG shall not, directly or indirectly, solicit for
employment any person employed or working on the services
provided hereunder within the preceding twelve (12) months by
the other party or any affiliate of the other party without
the prior written consent of the other party; provided
however; that (i) in the event either party uses the services
of a professional recruiter and provides such recruiter solely
with generic job duties and job descriptions (without making
any reference to the other party or the party's affiliates)
13
* Confidential information omitted and filed separately with the SEC.
and such recruiter contacts a qualified candidate who happens
to be an employee of the other party and that candidate
initiates contact through a recruiter with that party, then
that party may employ that employee, or (ii) in the event an
employee of the other party responds to a general
advertisement placed by a party, then that party may employ
that employee.
10.16 This Agreement is the result of mutual negotiations between
the parties and shall not be deemed to have been prepared by
either party, but by both equally. The headings of the several
paragraphs contained herein are for convenience only and do
not define, limit, or construe the contents of such paragraph.
10.17 The parties agree that this Agreement constitutes the full,
complete, and entire Agreement between them and supersedes all
prior understandings, agreements, conversations, or
representations between them with respect to the subject
matter of this Agreement. Any prior agreement between LMG and
IIC regarding the same subject matter is null and void and
abrogated hereby.
10.18 IIC and LMG acknowledge and agree that there are not any
intended third-party beneficiaries of this Agreement
10.19 Survival: Sections 2.7, 5, 6.1, 6.2, 8, 9, 10.13, 10.14, and
10.15 shall survive the termination of this Agreement.
14
In witness whereof, the parties hereto have executed this Agreement to take
effect on the date specified.
LEGACY MARKETING GROUP
By /s/ R. Xxxxxxx Xxxxx
---------------------------
Title President
---------------------------
Date 6/5/02
---------------------------
Witness /s/ Xxx Xxxx
---------------------------
INVESTORS INSURANCE CORPORATION
By /s/ Xxxx Xxxxxx
---------------------------
Title C.E.O.
---------------------------
Date June 05, 2002
---------------------------
Witness /s/ Xxxx Xxxxx
---------------------------
15
APPENDIX A
GEOGRAPHIC TERRITORY:
The District of Columbia and all states in which IIC is authorized to transact
business, unless prohibited by IIC.
CONTRACT (POLICY) FORMS
The Product Specifications prepared for new products will include the Contract
forms for such products. Furthermore, such Product Specifications shall be
incorporated by reference herein to the Agreement, upon final written
authorization of IIC and LMG.
A-1
APPENDIX B
COMMISSION AND MARKETING ALLOWANCE FEES
COMMISSION
OVERRIDE COMMISSION
MARKETING ALLOWANCE
LMG TRAIL COMMISSION
B-1
APPENDIX C
SCHEDULE OF AUTHORIZED PERSONNEL
Representing IIC
Xxxx Xxxxx Senior Vice President and Treasurer
Xxxx Xxxxxxx Senior Vice President
Xxxx Xxxxxx Chief Executive Officer
Xxxxx Xxxxxx Executive Vice President
Representing LMG
Xxx Xxxx Vice President of Marketing
Xxxxxxx Xxxxx President
Xxxxx Xxxxx Chief Executive Officer
Xxxxx Xxxxxx Chief Financial Officer
C-1
APPENDIX D
WHOLESALER AND PRODUCER AGREEMENT
D-1
