Execution Copy
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UNUM Life Insurance Company of America --
Variable Annuity I, II, and III
PRINCIPAL UNDERWRITING AGREEMENT
--------------------------------
THIS AGREEMENT is made as of the 1st day of October, 1996 and
effective as of the date specified in Section 19 hereof, among UNUM Life
Insurance Company of America ("UNUM"), a life insurance company organized and
existing under the laws of the State of Maine on behalf of itself and SEPARATE
ACCOUNT VA-1 OF UNUM (the "Separate Account"), a separate account established by
UNUM and existing pursuant to the Maine Insurance Code and LNC EQUITY SALES
CORPORATION ("Equity Sales"), a corporation organized and existing under the
laws of the State of Indiana.
W I T N E S S E T H:
WHEREAS, UNUM has issued and proposes to continue to issue to the
public certain group variable annuity contracts known as Variable Annuity I,
Variable Annuity II, and Variable Annuity III (the "Contracts") and has, by
resolution of its predecessor's Board of Directors on July 8, 1988, created a
segregated investment account in connection therewith; and
WHEREAS, UNUM has established the Separate Account for the purpose of
issuing the Contracts and has registered the Separate Account with the
Securities and Exchange Commission ("Commission") as a unit investment trust
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Contracts previously issued and to be issued by UNUM are
and will be registered with the Commission for offer and sale to the public, and
otherwise are in compliance with all applicable laws; and
WHEREAS, Equity Sales is a broker-dealer registered under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and a member of the
National Association of Securities Dealers, Inc. (along with any affiliates
thereof, "NASD"), and proposes to form a selling group for the distribution of
said Contracts; and
WHEREAS, Equity Sales is an affiliate of The Lincoln National Life
Insurance Company, a life insurance company organized and existing under the
laws of the State of Indiana ("LNL") and Lincoln Life & Annuity Company of New
York ("LLANY"); and
WHEREAS, LNL and UNUM have entered into that certain Amended and
Restated Asset Transfer and Acquisition Agreement, dated as of January 24, 1996
(as amended, the "Acquisition Agreement"), the provisions of which are not
intended to be affected or modified hereby, whereby certain Contracts will be
indemnity reinsured and assumptively reinsured by LNL while additional premiums
may be paid and additional contracts may be issued by UNUM on a coinsurance
basis with LNL; and
WHEREAS, the parties hereto intend this Agreement to become effective
as of and from the Closing, as defined in the Transfer and Acquisition
Agreement; and
WHEREAS, pursuant to the Acquisition Xxxxxxxxx, XXX and UNUM and/or
affiliates of each also intend to enter into one or more Administrative Services
Agreement(s) (the "Administrative Services Agreement(s)") as of the Closing, the
provisions of which are not intended to be affected or modified hereby; and
WHEREAS, UNUM desires to retain the services of Equity Sales as
principal underwriter of the Contracts issued by UNUM through the Separate
Account that are not assumptively reinsured by LNL and of any additional
Contracts issued after the Closing pursuant to that certain Coinsurance and
Assumption Agreement ("the Coinsurance and Assumption Agreement") and that
certain Post-Closing Indemnity Reinsurance Agreement (the "Post-Closing
Indemnity Reinsurance Agreement"), each of which will be entered into by LNL and
UNUM as of the Closing, the provisions of which are not intended to be affected
or modified hereby;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
UNUM, the Separate Account and Equity Sales hereby agree as follows:
Duties of Equity Sales
----------------------
1. Selling Group. Equity Sales will contract with a selling group
consisting of broker-dealers appointed by UNUM to distribute the Contracts which
are issued by UNUM through the Separate Account and are registered with the
Commission for offer and sale to the public. Subject to Section 2 of this
Agreement, the initial selling group shall consist of those broker-dealers
listed in the attached Schedule A who enter into dealer agreements with Equity
Sales. Said Schedule A may be amended from time to time by the mutual consent
of the parties to this Agreement. Equity Sales will also distribute the
Contracts through its own duly licensed registered representatives.
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2. Selling Group Agreements. Equity Sales will enter into and
maintain a dealer agreement with each broker-dealer listed in Schedule A and
each broker-dealer joining such selling group ("member"), and an executed copy
of each will be provided to UNUM; provided, however, that Equity Sales shall not
be required to enter into any dealer agreement with any broker-dealer listed in
Schedule A if Equity Sales does not believe that such person is qualified to act
in such capacity. Any such dealer agreement will provide:
(a) that each member will distribute the Contracts only in those
jurisdictions in which the Contracts are registered or qualified
for sale and only through duly licensed registered
representatives of such member who are fully licensed with UNUM
to sell the Contracts in the applicable jurisdiction(s);
(b) that all applications and initial and subsequent payments
under the Contracts collected by the member will be remitted
promptly by the member to UNUM at such address as it may from
time to time designate; and
(c) that each member will comply with all applicable federal and
state laws, rules and regulations.
3. Sales Efforts. Equity Sales will use reasonable efforts to provide
information and reasonable marketing assistance to the members, including
preparing and providing members with advertising materials and sales literature,
and providing members with current Prospectuses for the Contracts and the funds
listed on Schedule B hereto (the "Funds"). Equity Sales will use reasonable
efforts to ensure that members deliver only the currently effective Prospectuses
of the Contracts and the Funds. Equity Sales and UNUM will cooperate in the
development of advertising and sales literature. Equity Sales will deliver to
members, and use reasonable efforts to ensure that members use, only sales
literature and advertising material which conforms to the requirements of
federal and state laws and regulations and which has been authorized by UNUM and
Equity Sales. Equity Sales will be responsible for filing sales literature and
advertising material, where necessary, with appropriate securities regulatory
authorities, including the NASD. UNUM understands and agrees that Equity Sales
is not required to promote or encourage the sale of additional Contracts and
that Equity Sales will actively solicit owners of Contracts to novate their
Contracts with LNL as contemplated by the Transfer and Acquisition Agreement.
In addition, UNUM understands and agrees that Equity Sales and its affiliates
intend to promote actively and sell products that are directly competitive with
the Contracts. UNUM reserves the right in its sole discretion without notice to
Equity Sales to suspend, withdraw or modify the offering of Contracts or to
change the conditions of their offering with respect to anyone or any class.
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4. Exclusions from Equity Sales Obligations. Equity Sales shall not
be responsible for:
(a) taking or transmitting applications for the Contracts;
(b) examining or inspecting risks or approving, issuing or
delivering Contracts;
(c) receiving, collecting or transmitting premium payments;
(d) assisting in the completion of applications for Contracts;
(e) remitting sales commissions to licensed broker-dealers and
insurance agents, if such payments must be made by UNUM under
applicable state insurance law;
(f) supervising the activities of the members of the selling
group or their registered representatives (other than registered
representatives of Equity Sales); and
(g) offering and selling Contracts except to the extent
necessary to provide continuing servicing, including continued
receipt of contributions and enrollment of new participants under
Contracts issued prior to the Closing and to issue and service
new Contracts pursuant to the Coinsurance and Assumption
Agreement and the Post-Closing Indemnity Reinsurance Agreement,
all on a reasonable efforts basis only.
5. Certain Expenses. Equity Sales will bear all its expenses of
providing services under this Agreement, including the cost of preparing,
printing and mailing advertising and sales literature, and the cost of printing
and mailing Contract and Fund Prospectuses which are used for sales purposes.
Equity Sales shall bear the expenses of registering and qualifying Contracts
for sale under federal and state laws and expenses of printing and mailing
Prospectuses, proxies and shareholder reports. Equity Sales will not pay, or
reimburse UNUM for, state appointing fees and associated renewal fees incurred
to enable members to sell the Contracts; provided, however, that Equity Sales
will pay, or reimburse UNUM for payment of , any state appointing fees and
associated renewal fees incurred by members selling only, and receiving
commissions for, Contracts issued under the Coinsurance and Assumption Agreement
and the Post-Closing Indemnity Reinsurance Agreement.
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6. Certain Regulatory Matters. Equity Sales will advise UNUM
immediately upon Equity Sales becoming aware of:
(a) any request by the Commission (i) for amendment of the
registration statement relating to the Contracts or the Funds or
(ii) for additional information;
(b) the issuance by the Commission of any stop order suspending
the effectiveness of the registration statement of the Contracts
or the Fund or the initiation of and proceedings for that
purpose;
(c) the institution of any proceeding, investigation or hearing
involving the offer or sale of the Contracts or the Fund of which
it becomes aware; or
(d) the happening of any material event which makes untrue any
statement made in the registration statement of the Contracts or
the Fund or which requires the making of a change therein in
order to make any statement made therein not misleading.
Duties of UNUM
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7. Applications and Premiums. UNUM will receive and process
applications and premium payments in accordance with the terms of the Contracts
and the current Prospectuses. All applications for Contracts are subject to
acceptance or rejection by UNUM in its sole discretion. UNUM will inform Equity
Sales of any such rejection and the reason therefor.
8. Insurance Regulatory Matters. UNUM will be responsible for filing
the Contracts, applications, forms, sales literature and advertising material,
where necessary, with appropriate insurance regulatory authorities. UNUM
represents and warrants that all of the persons listed on Schedule A hereto have
been duly appointed as insurance agents for UNUM under applicable state law.
UNUM represents and warrants that such appointments will remain in effect after
the effective date of this Agreement, and UNUM will promptly notify Equity Sales
if any such appointment lapses for any reason.
9. Certain Regulatory Matters.
(a) UNUM will furnish to Equity Sales such information with
respect to the Separate Account and the Contracts in such form and signed by
such of its officers as Equity
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Sales may reasonably request, and will warrant that the statements therein
contained when so signed will be true and correct.
(b) UNUM will advise Equity Sales immediately of:
(i) any request by the Commission (i) for amendment of the
registration statement relating to the Contracts or the
Funds or (ii) for additional information;
(ii) the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement
of the Contracts or the Funds or the initiation of any
proceedings for that purpose;
(iii) the institution of any proceeding, investigation,
hearing or any action involving the offer or sale of the
Contracts or the Funds of which it becomes aware; and
(iv) the happening of any material event, if known, which
makes untrue any statement made in the registration
statement of the Contracts or the Funds or which requires
the making of a change therein in order to make may
statement made therein not misleading.
10. Additional Registrations. UNUM will use reasonable efforts to
register for sale, from time to time as necessary, additional dollar amounts of
the Contracts under the 1933 Act, and under state securities laws should it
ever be required, and to file for approval under state insurance laws when
necessary and will maintain the 1940 Act registration of the Separate Account.
11. Payments of Commissions. Equity Sales will pay all commissions
and service fees due by reason of sales of the Contracts (including continuing
commissions and service fees) to members of the selling group, as are from time
to time set forth in dealer agreements. Such dealer agreements shall provide
for the return of sales commissions by the members if the Contracts are tendered
for redemption to UNUM in accordance with the 10-day review ("free-look")
provision in the Contract.
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Representations and Warranties
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12. Representations and Warranties by UNUM. UNUM represents and
warrants to Equity sales that:
(a) registration statements under the 1933 Act (File Nos. 33-
45846, 33-45851, 33-47786) and under the 1940 Act (File No. 811-
5803) on Form N-4 with respect to the Contracts and Separate
Account have been filed with the Commission in the form
previously delivered to Equity Sales, and copies of any and all
amendments thereto will be forwarded to Equity Sales at the time
that they are filed with the Commission;
(b) the registration statements and any amendments or
supplements thereto have become effective, conform in all
material respects to the requirements of the 1933 Act and the
1940 Act, and the rules and regulations of the Commission
thereunder, and do not and will not contain any untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statement or omission made in
reliance upon and in conformity with information furnished in
writing to UNUM by Equity Sales expressly for use therein;
(c) UNUM is validly existing as a stock life insurance company
in good standing under the laws of the State of Maine, with power
(corporate or other) to own its properties and conduct its
business as described in the Acquisition Agreement, and has been
duly qualified for the transaction of business and is in good
standing under the laws of each other jurisdiction in which such
qualification is required in order for UNUM to conduct the
Business;
(d) the Contracts issued and to be issued through the Separate
Account have been duly and validly authorized and, when issued
and delivered against payment therefor as provided in the
Prospectuses and in the Contracts, were or will be (as the case
may be) duly and validly issued and conform and will conform to
the description of such Contracts contained in the Prospectuses
relating thereto;
(e) UNUM will not pay commissions or direct Equity Sales to pay
commissions to persons who, to the best of UNUM's knowledge, are
not
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appropriately licensed in a manner as to comply with the state
insurance laws;
(f) the performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a breach
or violation of any of the terms or provisions of, or constitute
a default under any statute, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument to which
UNUM is a party or by which UNUM is bound, UNUM's charter as a
stock life insurance company or by-laws, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over UNUM or any of its properties, and no consent,
approval, authorization or order of any court or governmental
agency or body which has not been obtained by the effective date
of this Agreement is required for the consummation by UNUM of the
transactions undertaken pursuant to this Agreement;
(g) there are no material legal or governmental proceedings
threatened or pending to which UNUM or the Separate Account is a
party or of which any property of UNUM or the Separate Account is
the subject, other than as set forth in the Prospectus relating
to the Contracts, and other than litigation incident to the kind
of business conducted by UNUM which, if determined adversely to
UNUM, would not individually or in the aggregate have a material
adverse effect on the separate account operations of UNUM;
(h) none of the information furnished in writing by UNUM for use
in the registration statements of the Contracts will not result
in the registration statements' failing to conform in all
respects to the requirements of the 1933 Act and the 1940 Act and
the rules and regulations thereunder contain any untrue statement
or a material fact or omit a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and
(i) neither the existence nor the performance of this Agreement
or the Acquisition Agreement (including any additional agreements
contemplated thereby) will cause any participation or similar
agreements with the Funds with respect to the Contracts to be
breached, terminated or give any party to any such agreement the
right to terminate any such agreement (whether with or without
notice or lapse of time).
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13. Representations and Warranties by Equity Sales. Equity Sales
represents and warrants to UNUM that:
(a) the performance of its duties under this Agreement by Equity
Sales will not result in a breach or violation of any of the
terms or provisions or constitute a default under any statute,
any indenture, mortgage, deed of trust, note, agreement or other
agreement or instrument to which Equity Sales is a party or by
which Equity Sales is bound, the Certificate of Incorporation or
By-Laws of Equity Sales, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over
Equity Sales;
(b) any statement or omission made by UNUM in reliance upon and
in conformity with information furnished in writing to UNUM by
Equity Sales expressly for use in the registration statements for
the Contracts will not result in the registration statements'
failing to conform in all respects to the requirements of the
1933 Act and the rules and regulations thereunder or containing
any untrue statement of a material fact or omission of a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(c) it is a broker-dealer duly registered with the Commission
pursuant to the 1934 Act and a member in good standing of the
NASD and is in compliance in all material respects with all state
and federal securities and insurance laws and regulations in
those states in which it conducts business as a broker-dealer;
(d) it will use reasonable efforts to ensure that any offering,
sale or other disposition of the Contracts will be limited to
those jurisdictions that have been approved by UNUM or otherwise
permit the offer and sale of the Contracts by UNUM; and
(e) it will comply in all material respects with the
requirements of state broker-dealer statutes and regulations and
the 1934 Act and the rules and regulations thereunder as each
applies to Equity Sales and shall conduct its affairs in
accordance with the Rules of Fair Practice of the NASD.
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Confirmations and Recordkeeping
-------------------------------
14. (a) Confirmations. Equity Sales, as agent for UNUM, shall
confirm to each applicant for and purchaser of a Contract, in accordance with
Rule 10b-10 under the 1934 Act, acceptance of premiums and such other
transactions as are required to be confirmed by Rule 10b-10 or administrative
interpretations thereunder, or any NASD requirements. Equity Sales shall not be
separately compensated for these services.
(b) Recordkeeping. Equity Sales shall maintain and preserve
such books and records with respect to the Contracts as required to be in
conformity with the requirements of Rules 17a-3 and 17a-4 under the 1934 Act
including, to the extent such requirements apply, all books and records with
respect to confirmations provided under Rule 10b-10. UNUM shall cooperate in
maintaining such books and records to the extent that it is not practicable for
Equity Sales to do so. UNUM shall not be separately compensated for these
services.
Miscellaneous
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15. No Duty to Promote Sales. Equity Sales makes no representation
or warranty regarding the number of Contracts to be sold by licensed broker-
dealers and insurance agents or the amount to be paid thereunder. Equity Sales
and UNUM agree that it is not the purpose of this Agreement actively to sell
additional Contracts.
16. No Exclusivity. Equity Sales may act as principal underwriter,
sponsor, distributor or dealer for issuers other than UNUM or its affiliates in
connection with mutual funds and insurance products and otherwise.
17. No Additional Agents. Nothing in this Agreement shall obligate
Equity Sales to appoint any additional member or registered representative of a
member its agent for purposes of the distribution of the Contracts.
18. Indemnification.
(a) By UNUM. UNUM shall indemnify and hold harmless Equity
Sales and each person who controls or is associated with the Equity Sales within
the meaning of such terms under the federal securities laws, and any officer,
director, employee or agent of the foregoing, against any and all losses,
claims, damages or liabilities, joint or several (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amounts
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which Equity Sales
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and/or any such person may become subject, under any statute or regulation, any
NASD rule or interpretation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of a
material fact or omission or alleged omission
to state a material fact required to be stated
therein or necessary to make the statements
therein not misleading, in light of the
circumstances in which they were made,
contained in any (i) registration statement or
in any prospectus for the Contracts; or (ii)
blue-sky application or other document
executed by UNUM specifically for the purpose
of qualifying any or all of the Contracts for
sale under the securities laws of any
jurisdiction; provided that UNUM shall not be
liable in any such case to the extent that
such loss, claim, damage or liability arises
out of, or is based upon, an untrue statement
or alleged untrue statement or omission or
alleged omission: (i) made in reliance upon
information furnished in writing to UNUM by
Equity Sales specifically for use in the
preparation of any such registration statement
or any such blue-sky application or any
amendment thereof or supplement thereto; or
(ii) contained in (A) any registration
statement, or any post-effective amendment
thereto which becomes effective, filed by a
Fund with the Commission relating to shares of
such Fund (the "Shares"), including any
financial statements included in, or any
exhibit to, such registration statement or
post-effective amendment, (B) any prospectus
of a Fund relating to the Shares either
contained in any such registration statement
or post-effective amendment or filed pursuant
to Rule 497(c) or Rule 497(e) under the 1933
Act, (C) in any blue-sky application or other
document executed by a Fund specifically for
the purpose of qualifying any or all of the
shares of such Fund for sale under the
securities law of any jurisdiction or (D) in
any promotional, sales or advertising material
or written information relating to the Shares
authorized by a Fund; or
(ii) result because of the terms of any Contract or
because of any breach by UNUM of any provision
of this Agreement or of any Contract; or
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(iii) result from any breach of any representation
or warranty made by UNUM under this Agreement.
This indemnification agreement shall be in addition to any liability that UNUM
may otherwise have; provided, however, that no person shall be entitled to
indemnification pursuant to this provision if such loss, claim, damage or
liability is due to the willful misfeasance, bad faith, gross negligence or
reckless disregard of duty by the person seeking indemnification.
(b) By Equity Sales. Equity Sales shall indemnify and
hold harmless UNUM and each person who controls or is associated with UNUM
within the meaning of such terms under the federal securities laws, and any
officer, director, employee or agent of the foregoing, against any and all
losses, claims, damages or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amounts paid in settlement of, any action, suit or proceeding or any
claim asserted), to which UNUM and/or any such person may become subject under
any statute or regulation, any NASD rule or interpretation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of a
material fact or omission or alleged omission
to state a material fact required to be stated
therein or necessary in order to make the
statements therein not misleading, in light of
the circumstances in which they were made,
contained in any (i) registration statement or
in any prospectus for the Contracts (ii) blue-
sky application or other document executed by
UNUM specifically for the purpose of
qualifying any or all of the Contracts for
sale under the securities laws of any
jurisdiction; in each case to the extent, but
only to the extent, that such untrue statement
or alleged untrue statement or omission or
alleged omission is made in reliance upon
information furnished in writing to UNUM by
Equity Sales specifically for use in the
preparation of any such registration statement
or any such blue-sky application or any
amendment thereof, or supplement thereto;
(ii) result because of any use by Equity Sales of
promotional, sales or advertising material not
authorized by UNUM or any verbal or written
misrepresentations by Equity Sales or any
unlawful sales practices concerning the
Contracts by Equity Sales under federal or
state laws or NASD
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regulations, but not including any state
insurance law, compliance with which is a
responsibility of UNUM under this Agreement or
otherwise;
(iii) result from any claims by agents or
representatives or employees of Equity Sales
for commissions or other compensation or
remuneration of any type with respect to
periods after the Closing; or
(iv) result from any breach of any provision of
this Agreement, including a breach of any
representation or warranty made by Equity
Sales under this Agreement.
This indemnification shall be in addition to any liability that Equity Sales may
otherwise have; provided, however, that no person shall be entitled to
indemnification pursuant to this provision to the extent such loss, claims,
damage or liability is due to the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the person seeking indemnification.
(c) General. After receipt by a party entitled to
indemnification ("indemnified party") under this Section 18 of notice of the
commencement of any action, if a claim in respect thereof is to be made against
any person obligated to provide indemnification under this Section 18
("indemnifying party"), such indemnified party shall notify the indemnifying
party in writing of the commencement thereof as soon as practicable thereafter,
provided that the omission to so notify the indemnifying party shall not relieve
the indemnifying party from any liability under this Section 18, except to the
extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
the failure to give such notice. The indemnifying party, upon the request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (1) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (2) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment.
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The indemnification provisions contained in this Section 19 shall
remain operative in full force and effect, regardless of (1) any investigation
made by or on behalf of either party or by or on behalf of any controlling
person thereof, (2) delivery of any Contracts and premiums therefor, and (3) any
termination of this Agreement. A successor by law of Equity Sales or UNUM, as
the case may be, shall be entitled to the benefits and bound by the obligations
of the indemnification provisions contained in this Section 18.
19. Term; Termination; No Assignment.
(a) The term of this Agreement shall commence as of the Closing.
(b) This Agreement will terminate automatically upon its
assignment, as that term is defined in the 1940 Act. This Agreement will also
terminate, without the payment of any penalty by either party:
(i) at the option of UNUM upon institution of formal
proceedings against Equity Sales by the NASD, by the
Commission or by any state securities commission;
(ii) at the option of Equity Sales upon the institution of
formal proceedings against UNUM by the Department of
Insurance of any state, the NASD, the Commission or any
state execution commission;
(iii) at the option of UNUM upon the termination of the
Administrative Services Agreement(s);
(iv) at the option of either party following the material
breach of this agreement by the other party, if such breach
is not cured within 30 days following notice by the
terminating party to the breaching party stating intent to
terminate and the nature of the breach; or
(v) as otherwise provided in the 1940 Act.
20. Arbitration. In the event of any disputes or differences arising
between the parties hereto with reference to any transaction under or relating
to any way to this Agreement as to which agreement between the parties cannot be
reached, the same shall be submitted to arbitration, which shall be mandatory
and binding. The arbitration shall be held in New York, New York. The
arbitration panel shall consist of three arbitrators who must be officers of
life insurance companies other than the parties to this Agreement or their
respective affiliates or subsidiaries.
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UNUM shall appoint one arbitrator and Equity Sales the second. Such arbitrators
shall then select the third arbitrator before arbitration commences. Should one
of the parties decline to appoint an arbitrator, or should the two arbitrators
be unable to agree upon the choice of a third, such appointment shall be left to
the American Arbitration Association. Decisions of the arbitrators shall be by
majority vote, and from their written decision there shall be no appeal. The
costs of arbitration, including the fees of the arbitrators, shall be borne as
the arbitrators shall decide. Judgment upon any award granted by the arbitrators
may be entered in a Federal court of competent jurisdiction located in New York,
New York. The provisions of this Section shall survive the termination of this
Agreement.
21. Notices. Any notice required or permitted hereunder shall be in
writing and shall be delivered personally (by courier or otherwise), sent by
confirmed facsimile transmission (with a confirmation copy sent by first class
U.S. mail, postage pre-paid, within 24 hours after transmission) or sent by
certified, registered or express U.S. mail, postage prepaid. Any such notice
shall be deemed given when so delivered personally, sent by facsimile
transmission or, if mailed, three days after the date of deposit in the United
States mails, as follows:
(a) If to Equity Sales to:
LNC Equity Sales Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
With a concurrent copy to
Xxxxxxxxxx, Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
(b) If to UNUM to:
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UNUM Life Insurance Company of America
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
With a concurrent copy to:
Xxxx & Xxxxxxx
0000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
22. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, permitted assigns
and legal representatives. Neither this Agreement, nor any right hereunder, may
be assigned by either party (in whole or in part) without the prior written
consent of the other party, subject to any additional requirements of the 1940
Act.
23. Amendments. This Agreement cannot be amended, modified, changed
or discharged, except by an instrument in writing signed by an authorized
officer of each of UNUM and Equity Sales, subject to any additional requirements
of the 1940 Act.
24. Execution in Counterparts. This Agreement may be executed by the
parties hereto in any number of separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one (1) and the same instrument. Each counterpart may
consist of a number of copies hereof each signed by less than all, but together
signed by all, of the parties hereto.
25. No Third Party Beneficiaries. Except as otherwise specifically
provided for herein, nothing in this Agreement is intended or shall be construed
to give any person, other than the parties hereto, their successors and
permitted assigns, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
26. Headings and Schedules. Headings used herein are not a part of
this Agreement and shall not affect the terms hereof. The attached Schedules
are a part of this Agreement.
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27. Standard of Conduct and Interpretation. Without in any way
limiting their obligations under this Agreement, the parties hereto agree to
carry out the intent and purposes of this Agreement in good faith, and any
interpretation of this Agreement or of the respective rights and obligations of
the parties established thereby shall be consistent with the intent and purposes
of this Agreement as stated in the recitals above.
28. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
29. No Joint Venture. The parties understand that there is no
intention to create a joint venture in the subject matter of this Agreement.
Accordingly, the right to terminate this Agreement and to engage in any activity
not inconsistent with this Agreement is absolute.
30. Relationship to Other Agreements. This Agreement does not affect
the provisions of the Acquisition Agreements, the Administrative Services
Agreements, the Coinsurance and Assumption Agreement, the Post-Closing Indemnity
Reinsurance Agreement or any other written agreement between UNUM and Equity
Sales or LNL. Any obligations of UNUM under this Agreement, and any
responsibilities excluded from Equity Sales' obligations under this Agreement,
shall nonetheless be performed, in whole or in part, by LNL or an affiliate of
LNL as agent for UNUM if so required by the terms of the Administrative Services
Agreement(s) or the Acquisition Agreement. The parties recognize that certain
obligations of UNUM under this Agreement are contemplated to be performed by
UNUM's agents, including LNL and its affiliates.
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IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be duly executed and attested as follows:
UNUM LIFE INSURANCE COMPANY
OF AMERICA on behalf of
itself and Separate Account VA-1
of UNUM Life Insurance
Company of America
Attest:
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
---------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
LNC EQUITY SALES CORPORATION
Attest:
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ----------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Director,
Chief Operating Officer
