EXHIBIT A
RESTRUCTURING AGREEMENT
dated as of
------------
among
ALLMERICA FINANCIAL CORPORATION
ALLMERICA FINANCIAL LIFE INSURANCE AND ANNUITY
COMPANY
and
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS 1
ARTICLE 2
TRANSFER OF SUBSIDIARIES AND ASSETS; ASSUMPTION OF LIABILITIES
SECTION 2.01. DIVIDEND OF SELLER RETAINED SUBSIDIARIES 3
SECTION 2.02. TRANSFER OF ASSETS 3
SECTION 2.03. ASSUMPTION OF LIABILITIES 4
SECTION 2.04. RETAINED LIABILITIES 4
SECTION 2.05. ASSIGNMENT OF CONTRACTS AND RIGHTS 4
ARTICLE 3
OTHER AGREEMENTS
SECTION 3.01. BOOKS AND RECORDS 5
SECTION 3.02. REASONABLE BEST EFFORTS; FURTHER ASSURANCES; POWER-OF-ATTORNEY 6
SECTION 3.03. TRANSITION SERVICES 7
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. TERMINATION 7
SECTION 4.02. RELEASES 7
SECTION 4.03. NOTICES 7
SECTION 4.04. EXPENSES 9
SECTION 4.05. AMENDMENTS; NO WAIVERS 9
SECTION 4.06. SUCCESSORS AND ASSIGNS 9
SECTION 4.07. THIRD-PARTY BENEFICIARIES 9
SECTION 4.08. GOVERNING LAW 9
SECTION 4.09. JURISDICTION 10
SECTION 4.10. WAIVER OF JURY TRIAL 10
SECTION 4.11. COUNTERPARTS; EFFECTIVENESS 10
SECTION 4.12. ENTIRE AGREEMENT 10
SECTION 4.13. CAPTIONS 10
SECTION 4.14. SEVERABILITY 10
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Schedule 1.01 - Seller Retained Subsidiaries
Schedule 2.02(a) - AFLIAC Transferred Assets
Schedule 2.02(b) - AFC Transferred Assets
Schedule 2.03(a) - AFLIAC Assumed Liabilities
Schedule 2.03(b) - AFC Assumed Liabilities
Schedule 4.02 - Releases
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RESTRUCTURING AGREEMENT
RESTRUCTURING AGREEMENT dated as of _____ , among Allmerica Financial
Corporation, a
Delaware corporation ("SELLER" or "AFC"), Allmerica Financial
Life Insurance and Annuity Company, a stock insurance corporation incorporated
in Massachusetts and a wholly-owned subsidiary of Seller (the "COMPANY"), and
First Allmerica Financial Life Insurance Company, a stock insurance corporation
incorporated in Massachusetts and a wholly-owned subsidiary of the Company
("FAFLIC").
RECITALS:
WHEREAS, Seller and The Xxxxxxx Xxxxx Group, Inc., a
Delaware corporation
("BUYER"), have entered into a Stock Purchase Agreement dated as of August 22,
2005 (the "SPA"), providing for the acquisition of the Company by Buyer; and
WHEREAS, as part of the Transactions (as defined in the SPA), and as a
condition precedent to the acquisition of the Company under the SPA, the parties
hereto will consummate the transactions contemplated by this Agreement prior to
the closing under the SPA.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS. (a) Capitalized terms used herein and not
otherwise defined herein have the respective meanings assigned to such terms in
the SPA.
(b) The following terms, as used herein, have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with such Person;
PROVIDED the Company shall not be considered an Affiliate of Seller or any
Seller Retained Subsidiary from and after the Closing.
"SELLER RETAINED SUBSIDIARIES" means each Subsidiary of the Company,
including those listed on Schedule 1.01.
"SUBSIDIARY" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at any time directly or indirectly owned by such Person. For the avoidance
of doubt, neither Allmerica Investment Trust nor Allmerica Securities Trust is a
Subsidiary of the Company.
"TRANSACTION AGREEMENTS" means the SPA, this Agreement, and the other
Ancillary Agreements.
(c) The words "hereof", "herein" and "hereunder" and words of like import
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof. References to Articles, Sections, Exhibits and Schedules
are to Articles, Sections, Exhibits and Schedules of this Agreement unless
otherwise specified. All Exhibits and Schedules annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Any capitalized terms used in any Exhibit or Schedule but
not otherwise defined therein, shall have the meaning as defined in this
Agreement, or if not defined herein, as defined in the SPA. Any singular term in
this Agreement shall be deemed to include the plural, and any plural term the
singular. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation", whether or not they are in fact followed by those words or words of
like import. "Writing", "written" and comparable terms refer to printing, typing
and other means of reproducing words (including electronic media) in a visible
form. References to any agreement or contract are to that agreement or contract
as amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof. References to any Person include the successors and
permitted assigns of that Person. References from or through any date mean,
unless otherwise specified, from and including or through and including,
respectively. Any reference in this Agreement to a statute shall be to such
statute, as amended from time to time, and to the rules and regulations
promulgated thereunder.
(d) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
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AFC Preamble
AFC Assumed Liabilities 2.03(b)
AFC Retained Liabilities 2.04(b)
AFC Transferred Assets 2.02(b)
AFLIAC Assumed Liabilities 2.03(a)
AFLIAC Retained Liabilities 2.04(a)
AFLIAC Transferred Assets 2.02(a)
Buyer Recitals
Company Preamble
FAFLIC Preamble
PCG Records 2.02(a)
Principals 3.02(c)
Seller Preamble
SPA Recitals
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TERM SECTION
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Transfer Time 2.01(b)
VeraVest Producer Records Schedule 2.02(a)
ARTICLE 2
TRANSFER OF SUBSIDIARIES AND ASSETS; ASSUMPTION OF LIABILITIES
Section 2.01. DIVIDEND OF SELLER RETAINED SUBSIDIARIES. (a) At or prior to
the Transfer Time and upon the terms and conditions of this Agreement, the
Company shall contribute to FAFLIC all of the outstanding shares of capital
stock, or other ownership interests in, each of the Seller Retained Subsidiaries
(other than (i) FAFLIC and any of its Subsidiaries, (ii) VeraVest and (iii)
AFIMS).
(b) At a time (the "TRANSFER TIME") prior to the Closing and upon the
terms and subject to the conditions of this Agreement, the Company shall
distribute by means of a dividend to Seller all of the outstanding shares of
capital stock of (i) FAFLIC, (ii) VeraVest and (iii) AFIMS.
Section 2.02. TRANSFER OF ASSETS. (a) Except as otherwise provided herein,
at or prior to the Transfer Time and upon the terms and subject to the
conditions of this Agreement, FAFLIC and Seller shall, and shall cause any of
their Affiliates to take all actions necessary to cause the conveyance,
transfer, assignment and delivery to the Company of all of the right, title and
interest of FAFLIC, Seller and any such Affiliates in any and all assets,
properties and rights, real, personal or mixed, tangible and intangible,
wherever located, that are set forth on Schedule 2.02(a) (the "AFLIAC
TRANSFERRED ASSETS"). Notwithstanding the foregoing, the VeraVest Producer
Records shall not be transferred to the Company at the Closing; PROVIDED that
the data contained in the VeraVest Producer Records regarding the individuals in
the "Preferred Client Group" ("PCG RECORDS") shall be transferred to the Company
thereafter, but only upon the written request of the Company, including the
written commitment of the Company and the Buyer (on the behalf of itself and its
Affiliates) in form and substance satisfactory to VeraVest to use the PCG
Records only for the purpose of administering the Core Business and otherwise in
compliance with the applicable privacy policy of VeraVest, including
restrictions on the marketing of products or services to such policyholders by
non-affiliated third parties, with such use subject to the right of VeraVest to
obtain equitable relief from the Company and the Buyer for any violation
thereof.
(b) Except as otherwise provided herein, at or prior to the Transfer Time
and upon the terms and subject to the conditions of this Agreement, the Company
shall take or shall cause to be taken all actions necessary to cause the
conveyance, transfer, assignment and delivery to FAFLIC (or another Seller
Retained Subsidiary designated by FAFLIC) of all of the right, title and
interest of the Company in any and all the assets, properties and rights, real,
personal or mixed,
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tangible and intangible, wherever located, that are set forth on Schedule
2.02(b) (the "AFC TRANSFERRED ASSETS").
Section 2.03. ASSUMPTION OF LIABILITIES. (a) Upon the terms and subject to
the conditions of this Agreement, the Company agrees to assume at or prior to
the Transfer Time the Liabilities set forth on Schedule 2.03(a) hereto (the
"AFLIAC ASSUMED LIABILITIES").
(b) Upon the terms and subject to the conditions of this Agreement,
FAFLIC (or another Seller Retained Subsidiary designated by FAFLIC) agrees to
assume at or prior to the Transfer Time the Liabilities set forth on Schedule
2.03(b) hereto (the "AFC ASSUMED LIABILITIES").
Section 2.04. RETAINED LIABILITIES. (a) Except as otherwise provided
herein, in the SPA or in the Ancillary Agreements, FAFLIC, together with each
other Seller Retained Subsidiary, assumes at or prior to the Transfer Time only
the AFC Assumed Liabilities and does not assume any of the other Liabilities of
the Company of whatever nature, whether presently in existence or arising
hereafter. The Company agrees that all Liabilities of the Company other than the
AFC Assumed Liabilities shall remain obligations and liabilities of the Company
(including any such Liabilities which are subject to indemnification by Seller
under the SPA) (all such other Liabilities being herein referred to as the
"AFLIAC RETAINED LIABILITIES").
(b) Except as otherwise provided herein, in the SPA or in the Ancillary
Agreements, the Company assumes at or prior to the Transfer Time only the AFLIAC
Assumed Liabilities and does not assume any of the other Liabilities of AFC,
FAFLIC or any of their Affiliates of whatever nature, whether presently in
existence or arising hereafter and AFC and FAFLIC, on behalf of themselves and
each of their Affiliates, agree that all of their respective Liabilities other
than the AFLIAC Assumed Liabilities shall remain obligations and liabilities of
AFC, FAFLIC or such Affiliates, as applicable (all such other Liabilities being
herein referred to as the "AFC RETAINED LIABILITIES").
Section 2.05. ASSIGNMENT OF CONTRACTS AND RIGHTS. (a) Anything in this
Agreement to the contrary notwithstanding, this Agreement shall not constitute
an agreement to assign any AFLIAC Transferred Asset or AFC Transferred Asset, as
the case may be, or any claim or right or any benefit arising thereunder or
resulting therefrom if such assignment (i) would violate applicable Law relating
to copyrights or privacy of customer information or (ii) without the consent of
a third party thereto, would constitute a breach or other contravention of such
AFLIAC Transferred Asset or AFC Transferred Asset or in any way adversely affect
the rights of the Company or any Seller Retained Subsidiary thereunder.
(b) Seller, the Company and FAFLIC will use their reasonable best efforts
to obtain the consent of any third parties to the conveyance, transfer,
assignment and delivery of any such AFC Transferred Asset or any claim or right
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or any benefit arising thereunder to any Seller Retained Subsidiary as FAFLIC
may request; PROVIDED that any costs and expenses incurred in connection with
obtaining any such consents shall be shared as provided in Section 12.03(b)(i)
of the SPA.
(c) Seller, the Company and FAFLIC will use their reasonable best efforts
to obtain the consent of any third parties to the conveyance, transfer,
assignment and delivery of any such AFLIAC Transferred Asset or any claim or
right or any benefit arising thereunder to the Company; PROVIDED that any costs
and expenses incurred in connection with obtaining any such consents shall be
shared as provided in Section 12.03(b)(i) of the SPA; and PROVIDED, FURTHER,
that Seller shall give Buyer (1) reasonable advance notice if any such
third-party consent is to be sought, and (2) a reasonable opportunity to
participate in, and review, any written communication with any such third party.
(d) If such consent is not obtained, or if an attempted assignment
thereof would be ineffective or would adversely affect the rights of the Company
or a Seller Retained Subsidiary thereunder so that the Company or a Seller
Retained Subsidiary, as applicable, would not in fact receive all such rights,
then Seller, the Company and FAFLIC will cooperate in a mutually agreeable
arrangement under which the Company or a Seller Retained Subsidiary, as
applicable, would obtain the benefits and assume the obligations thereunder in
accordance with this Agreement, including sub-contracting, sub-licensing, or
sub-leasing to the Company or a Seller Retained Subsidiary, or under which the
Company would enforce for the benefit of a Seller Retained Subsidiary, with such
Seller Retained Subsidiary assuming the Company's obligations, any and all
rights of the Company against a third party thereto and vice versa.
(e) The Company will promptly pay to FAFLIC (or such other Seller
Retained Subsidiary as FAFLIC may designate) when received all monies received
by the Company under any AFC Transferred Asset or any claim or right or any
benefit arising thereunder; and Seller or its Affiliates will promptly pay to
the Company (or such other Person as the Company may designate) when received
all monies received by Seller or any of its Affiliates under any AFLIAC
Transferred Asset or any claim or right or any benefit arising thereunder.
ARTICLE 3
OTHER AGREEMENTS
Section 3.01. BOOKS AND RECORDS. Except as would violate applicable Law
relating to copyrights or privacy of customer information, prior to or as
promptly as practicable after the Transfer Time or as otherwise specified in any
Transaction Documents (but, to the extent required by applicable Insurance Laws,
no later than the Closing), (x) the Company shall deliver to Seller (or to such
Affiliate of Seller as Seller may designate) the relevant portions (or copies
thereof) of all corporate books, records and data in the possession of the
Company
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relating to Seller or any of its Affiliates, the businesses or affairs of the
Seller or any of its Affiliates (after giving effect to the transactions
contemplated hereby), AFC Transferred Assets or AFC Assumed Liabilities, and (y)
Seller shall deliver to the Company (or such other Person as the Company may
designate) the relevant portions (or copies thereof of all corporate books,
records and data in the possession of Seller (or any of its Affiliates) relating
to the AFLIAC Transferred Assets and the AFLIAC Assumed Liabilities, including,
in each case, all active agreements, active litigation files and government
filings. From and after the Transfer Time, all such books, records and copies
shall be the property of Seller (or of such Affiliate of Seller as Seller may
designate) or the Company (or such other Person as the Company may designate),
as applicable.
Section 3.02. REASONABLE BEST EFFORTS; FURTHER ASSURANCES;
POWER-OF-ATTORNEY.
(a) Subject to the terms and conditions of this Agreement and the SPA,
each of Seller, each Affiliate of the Seller and the Company will use its
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary or desirable under applicable laws and
regulations to consummate the transactions contemplated by this Agreement. Each
of Seller, each Affiliate of the Seller and the Company agrees to execute and
deliver such other documents, certificates, agreements and other writings and to
take such other actions as may be necessary or desirable in order to consummate
or implement expeditiously the transactions contemplated by this Agreement and
to vest (x) in FAFLIC (or another Seller Retained Subsidiary), good and
marketable title to the AFC Transferred Assets or (y) in the Company, good and
marketable title to the AFLIAC Transferred Assets.
(b) The Company hereby constitutes and appoints, effective as of the
Transfer Time, FAFLIC and its successors and assigns as the true and lawful
attorney of the Company with full power of substitution in the name of FAFLIC,
or in the name of the Company but for the benefit of FAFLIC, in each case at the
expense of FAFLIC (or another Seller Retained Subsidiary), (i) to collect for
the account of FAFLIC (or any other Seller Retained Subsidiary) any items of AFC
Transferred Assets and (ii) to institute and prosecute all proceedings which
FAFLIC may in its sole discretion deem proper in order to assert or enforce any
right, title or interest in, to or under AFC Transferred Assets, and to defend
or compromise any and all actions, suits or proceedings in respect of AFC
Transferred Assets or AFC Assumed Liabilities. FAFLIC shall be entitled to
retain for its own account (or for the account of another Seller Retained
Subsidiary) any amounts collected pursuant to the foregoing powers, including
any amounts payable as interest in respect thereof.
(c) Each of Seller and any Affiliate of Seller (solely for purposes of
this Section 3.02(c), the "PRINCIPALS") hereby constitutes and appoints,
effective as of the Transfer Time, the Company and its successors and assigns as
the true and lawful attorney of the Principals and each of them individually
with full power of
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substitution in the name of the Company, or in the name of a Principal but for
the benefit of the Company, in each case at the Company's expense, (i) to
collect for the account of the Company any items of AFLIAC Transferred Assets
and (ii) to institute and prosecute all proceedings which the Company may in its
sole discretion deem proper in order to assert or enforce any right, title or
interest in, to or under AFLIAC Transferred Assets, and to defend or compromise
any and all actions, suits or proceedings in respect of AFLIAC Transferred
Assets or AFLIAC Assumed Liabilities. The Company shall be entitled to retain
for its own account any amounts collected pursuant to the foregoing powers,
including any amounts payable as interest in respect thereof.
Section 3.03. TRANSITION SERVICES. With respect to the provisions of
certain transition services by Seller or its Affiliates to the Company after the
Transfer Time, the parties hereto agree as set forth in the Transition Services
Agreement.
ARTICLE 4
MISCELLANEOUS
Section 4.01. TERMINATION. (a) In the event the SPA is terminated pursuant
to its terms prior to the Transfer Time, this Agreement shall automatically and
simultaneously terminate and the transactions contemplated by this Agreement
shall automatically and simultaneously be abandoned and of no further force or
effect without the approval of FAFLIC, the Company, Buyer and Seller.
(b) In the event of such termination, there shall be no liability or
obligation hereunder on the part of any parties, or any of their respective
directors, officers, employees, Affiliates, advisors, agents, representatives,
successors or assigns, to any other party pursuant to this Agreement.
Section 4.02. RELEASES. Except as set forth on Schedule 4.02 or as provided
in this Agreement, the SPA or any other Transaction Agreement, effective as of
the Transfer Time, the Company, on the one hand, and Seller and each of its
Affiliates, on the other hand, releases and forever discharges the other party
and its Affiliates, and its respective directors, officers, employees and agents
of and from all Liabilities against such other Person or any of its assigns
which the releasing person has or ever had arising out of or relating to events,
circumstances or actions taken by such other Person prior to the Transfer Time;
PROVIDED that the foregoing release shall not affect either Person's right to
enforce any of the agreements set forth on Schedule 4.02 or any Transaction
Agreement in accordance with its terms.
Section 4.03. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
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if to the Company, to:
Allmerica Financial Life Insurance and Annuity Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
Fax:
with a copy to:
The Xxxxxxx Xxxxx Group, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: (000) 000-0000
and:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
if to Seller and/or FAFLIC, to:
Allmerica Financial Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
and:
Allmerica Financial Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
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in each case with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed effective only upon (i)
mailing of such notice, request or other communication and the actual receipt
thereof by the relevant party, or (ii) a facsimile transmission of such notice,
request or other communication and the acknowledgment by the relevant party of
receipt thereof.
Section 4.04. EXPENSES. Except as otherwise specifically set forth in the
Transaction Agreements, all costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
Section 4.05. AMENDMENTS; NO WAIVERS. (a) Any provision of this Agreement
may be amended or waived prior to the Transfer Time if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement and by the Buyer or, in the case of a waiver, by
each party against whom the waiver is to be effective and by the Buyer.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
Section 4.06. SUCCESSORS AND ASSIGNS. Subject to the proviso in Section
4.07, the provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
PROVIDED that no party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the consent of each other
party hereto.
Section 4.07. THIRD-PARTY BENEFICIARIES. Nothing contained in this
Agreement is intended to confer upon any Person other than the parties hereto
and their respective successors and permitted assigns any benefit, right or
remedies under or by reason of this Agreement; PROVIDED that the Buyer shall be
deemed to be an intended third-party beneficiary of all rights and obligations
under this Agreement solely from and after the Closing.
Section 4.08. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of
Delaware, without regard to
the conflicts of law rules thereof.
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Section 4.09. JURISDICTION. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be brought
exclusively in the United States District Court for the District of
Delaware or
any
Delaware state court, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient form. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 4.03 shall
be deemed effective service of process on such party.
Section 4.10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 4.11. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
Section 4.12. ENTIRE AGREEMENT. This Agreement and the other Transaction
Agreements constitute the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof and thereof.
Section 4.13. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
Section 4.14. SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith and use their
reasonable best efforts to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner so that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ALLMERICA FINANCIAL
CORPORATION
By:
--------------------------------
Name:
Title:
ALLMERICA FINANCIAL LIFE
INSURANCE AND ANNUITY
COMPANY
By:
--------------------------------
Name:
Title:
FIRST ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
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