EXHIBIT 10(K)
MARKETING AGREEMENT
This Marketing Agreement is made and entered into and effective as of January
18, 2001, by and between the parties as follows:
John Hancock Life Insurance Company ("Hancock"), a Massachusetts corporation,
and Legacy Marketing Group ("LMG"), a California corporation, based on the
following facts:
A. Concurrently herewith, LMG and Hancock are entering into a certain
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 policies ("Policies") of Hancock as specified in APPENDIX A.
C. Hancock desires to have LMG recruit, train, and appoint Wholesalers and
Producers in the sale of certain Policies issued by Hancock as
specified in APPENDIX A. Wholesalers and Producers are those licensed
insurance agents contracted with LMG and appointed to sell Hancock
products.
Based on the foregoing facts, LMG and Hancock ("the parties") agree as follows:
1. DESIGNATION OF LMG AND SCOPE OF LMG'S AUTHORITY
1.1 Hancock designates LMG to recruit, train, and appoint
Wholesalers and Producers in the solicitation of the Policies
in the geographic territory specified in APPENDIX A (the
"Territory").
1.2 LMG is designated by Hancock for the purpose of soliciting
applications for and processing the Policies referenced in
APPENDIX A and otherwise transacting the business of this
Agreement. LMG accepts such designation and agrees to comply
with all applicable laws and regulations, and to diligently
devote itself to the business of this designation in order to
support sales of the Policies referenced in APPENDIX A as well
as help prevent the termination of such Policies through
conservation procedures mutually agreed upon by Hancock and
LMG.
1.3 LMG shall cause each new Wholesaler and Producer to enter into
Wholesaler and Producer Agreements in the form shown in
APPENDIX C. Hancock will not be a party to the Wholesaler and
Producer agreements and shall have no obligation or liability
thereunder. If such Wholesaler or Producer Agreement is
modified by LMG, LMG will provide Hancock with copies, within
ten (10) business days of such modifications for the purpose
of granting Hancock an opportunity to reject such
modifications. LMG's modifications to the Wholesaler and
Producer agreements will be deemed to have been ratified by
Hancock absent its written objection, as hereafter required.
Hancock will forward any objections to such modifications in
writing to LMG within (10) business days of its notice. LMG
shall file appointments of Wholesalers and Producers in the
appropriate states' insurance departments and other
jurisdictions. LMG will report weekly to Hancock a list of
current appointments, adding new appointments and terminations
from the list each week. Consideration for processing such
appointments and terminations is provided for in the
Administrative Services Agreement, executed concurrently
herewith this Marketing Agreement.
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 Hancock and LMG
or between Hancock 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 Hancock in any way or change
its rights, duties, or obligations, except as may be set forth
in the Administrative Services Agreement between Hancock and
LMG, executed concurrently herewith.
1.5 All Wholesalers and Producers who have been recruited and are
appointed to sell the Policies referenced in APPENDIX A by LMG
shall be identified by Hancock as Wholesalers and Producers of
LMG as to such
Policies. Any and all contracts entered into by and between
such Wholesalers or Producers with respect to such Policies
shall be coded by LMG onto its system and deemed Wholesalers
and Producers of LMG. Hancock may terminate Hancock's
appointment of any Wholesaler or Producer, with cause, at its
reasonable discretion, with prior written notice to LMG.
Hancock may terminate Hancock's appointment of any Wholesaler
or Producer, without cause, by mutual written agreement of
LMG. Hancock may not otherwise terminate, recode, or otherwise
disturb the relationship between LMG and its Wholesalers and
Producers with respect the Polices without the prior written
consent of LMG.
2. RIGHTS AND OBLIGATIONS OF HANCOCK
2.1 It is acknowledged by both Hancock and LMG that certain
obligations of Hancock hereunder are to be performed by LMG as
a servicing organization, pursuant to the Administrative
Services Agreement between Hancock and LMG. This does not
relieve Hancock 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 Hancock. 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, Hancock reserves the right to withdraw its
Policies from any state or other jurisdiction, with 60 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.
2.4 Hancock shall have sole authority and responsibility for
filing advertising materials, pertaining to the business
underwritten by Hancock, with applicable regulatory
authorities prior to approving their use by LMG. All costs
associated with such filings will be the responsibility of
Hancock, unless the parties agree otherwise in writing.
2.5 (a) Agent Initial Appointment Fees--Unless mutually agreed
upon in writing otherwise, Hancock shall be responsible for
payment of LMG's Wholesaler and Producer resident initial
appointment fees for such Wholesalers and Producers who have
satisfied LMG's and Hancock's agreed upon selection and
compliance criteria. Unless mutually agreed upon in writing
otherwise, Hancock will be responsible for any Wholesaler and
Producer non-resident initial appointment fees. Such
non-resident appointment requirements will comply with
Hancock's policies and procedures in effect as of the
execution of this Agreement. If Hancock changes such policies
and procedures, the responsibility for payment of such
non-resident initial appointment fees will be mutually agreed
in writing by both LMG and Hancock.
(b) Agent Renewal Appointment Fees--Hancock will be
responsible for payment of LMG's Wholesaler and Producer
resident and non-resident renewal appointment fees for
contracted Wholesalers and Producers. Such non-resident
appointment requirements will comply with Hancock's policies
and procedures in effect as of the execution of this
Agreement. If Hancock changes such policies and procedures,
the responsibility for payment of such non-resident renewal
appointment fees will be mutually agreed in writing by both
LMG and Hancock.
(c) Agent Termination Fees--Hancock will be responsible for
LMG's Wholesaler and Producer Appointment termination fees in
the states which mandate such fees.
2.6 Hancock shall provide LMG with prompt written notice of any
change of authority of persons authorized and enumerated in
APPENDIX D to provide LMG with instructions or directions
relating to services to be performed by LMG under this
Agreement. In the absence of timely 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, Hancock will indemnify LMG for any loss or claim as
a result of such reliance.
2.7 *
2.9 2.8 Hancock shall pay all license or royalty fees for use of
any intellectual property belonging to a third party that is
utilized with any policies 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, in the event that this
Agreement or the Administrative Services Agreements terminates
and Hancock desires to process or perform any services for
which LMG had previously been responsible, Hancock shall be
required to obtain all licenses and pay any royalty fees on
its own behalf to the extent Hancock wishes to use such
intellectual property.Hancock shall be responsible for the
cost of filing the policy forms with applicable regulatory
authorities pertaining to the business underwritten by Hancock
that are jointly developed with LMG. "Policy forms," shall
include, but are not limited to, master policy forms, riders,
endorsements, certificates, notices, disclosures or
administartive forms. Notwithstanding the foregoing, LMG will
assist in the drafting, completing, preparation of filing of
such policy forms.
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 Hancock in each state
or other jurisdiction within the Territory before engaging in
any activity which 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 Hancock 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
Policies, referenced in APPENDIX A, are solicited), office
procedures, guides and rules furnished, authorized or
promulgated by Hancock and agreed to by both parties and in
each state or other jurisdiction where any Wholesaler or
Producer solicits Policies, referenced in APPENDIX A. No
written advertising or sales materials of any kind, including
sales illustrations, or recruiting material referencing the
Policies, referenced in APPENDIX A, of Hancock shall be
authorized by LMG until after it has been approved in writing
by Hancock. LMG will provide such materials with sufficient
lead-time to allow appropriate review by Hancock. Hancock will
then use its best efforts to provide a timely response. A time
period not to exceed ten (10) business days shall be deemed
timely. No oral presentation of any kind shall be authorized
by LMG that does not conform to applicable statutes and
regulations or which does not accurately reflect the terms and
conditions of the Policies, referenced in APPENDIX A, being
sold. All recruiting practices of LMG shall comply with all
applicable laws, ordinances, and regulations of the
appropriate authorities. Hancock shall be responsible for the
maintenance of the advertising files and logs, as mandated by
applicable laws and regulations.
3.3 LMG agrees to maintain the following insurance coverages:
(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 a surety bond(s)
as so required in the states 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 Best's rating 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 its Wholesalers and Producers to
maintain Errors and Omissions coverage with a limit
of at least * per Wholesaler and Producer, or per
occurrence.
3.4 LMG may rely on instructions of any person indicated on
Hancock's "Schedule of Authorized Personnel," when acting
within the scope of their authority, attached hereto as
APPENDIX D. Each of such persons is authorized to give
instructions under this section with respect to any matter
arising in connection with this Agreement.
3.5 In the event a malfunction of the LMG systems, used in the
offering and/or sale of Polices specified in APPENDIX A,
causes an error or mistake in any record, report, data,
information or output under the terms of this Agreement, LMG
shall at its expense correct and reprocess such records in the
most expeditious manner possible, with the understanding that
time is of the essence. LMG will reimburse Hancock for any
costs and/or expenses associated with such error or mistake.
In the event Hancock discovers any such errors or mistake it
shall, within three (3) business days after discovery, notify
LMG in writing of such error or mistake in any record, report,
data, information or output received by Hancock.
3.6 LMG is responsible for the payment to Hancock of all monies,
which LMG collects on behalf of Hancock. However, until
Hancock receives all monies due, the same shall be a debt
payable by the debtor upon demand for which Hancock may at its
option offset with commissions otherwise due until such
liability is satisfied. Any indebtedness to Hancock shall be a
first lien against monies otherwise due under this Agreement.
3.7 LMG, in performance of its marketing obligations and duties,
will not itself, and will use its best efforts, to prevent
Wholesalers or Producers appointed hereunder, in the
performance of their obligations and duties hereunder, from
any of the following:
(a) Enter into any agreement or incur any obligation on
behalf of Hancock, except with Hancock's written
permission, or commit Hancock to:
(i) pay any money to a ny such Wholesalers,
Producer or employee, or
(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
Hancock.
(c) Solicit applications for Hancock 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 Policy,
(i) make any alterations, modifications or
endorsements or otherwise alter Hancock's
obligations as stated in the Policy, as
referenced in APPENDIX A;
(ii) collect or receive any premiums after the
initial premium, except as may be required
in the Administrative Services Agreement
executed concurrently herewith, between
Hancock and LMG;
(iii) adjust or settle any claim; except as
provided for in the Administrative Services
Agreement, executed concurrently herewith.
(e) Initiate any civil or criminal action or proceeding,
whether or not brought in the name of Hancock, which
may in any way involve or affect Hancock, its
affiliates, their business, operations, or any
Policy, as referenced in APPENDIX A, issued by
Hancock. 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 Hancock or its Policies, or cause, authorize or
permit any person to do so, without Hancock's prior
written consent. LMG agrees that it will not use the
name of Hancock 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 Hancock's
prior written consent. LMG agrees that it will not,
nor will LMG permit its Wholesalers and/or Producers
to misrepresent Hancock or its Policies, as
referenced in APPENDIX A, or make any oral or written
representation which is inconsistent with the terms
of such policies or sales literature or is misleading
in any way, or refer to any insurance company tending
to bring it into disrepute.
(g) Knowingly or willfully violate the insurance laws or
regulations of any regulatory authority of any State
or any other jurisdiction in which LMG represents
Hancock.
(h) Embezzle or knowingly or willfully misapply funds of
Hancock or any other person or entity.
(i) Perpetrate any fraud against Hancock or any other
person or entity.
3.8 LMG agrees that the compensation payable pursuant to Section
2.2 shall be accepted by it as full compensation from Hancock
for its marketing services hereunder, except as otherwise
agreed by mutual written consent of LMG and Hancock.
3.9 LMG will be solely responsible for any commissions to be paid
to its Wholesalers or Producers, which are earned as a result
of selling Hancock products through LMG, except as hereafter
in Section 8 of this Agreement.
3.10 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
Hancock:
(a) Litigation: Institute, prosecute or defend any legal
proceedings in connection with any matter pertaining
to the offering and/or sale of the Policies
identified in APPENDIX A.
(b) Alterations: Waive, amend, modify, alter, terminate
or change any term, provision or condition stated in
any Policy Form or discharge any contract in the name
of Hancock. Notwithstanding the foregoing, LMG may
waive, amend, modify, alter, terminate or change any
term, provision or condition stated in any Policy
Form or discharge any contract in the name of Hancock
in the resolution of complaints from policyholders or
regulatory authorities in accordance with mutually
acceptable written guidelines and procedures.
(c) Advice to Policyholders/Prospective Policyholders:
Offer tax, legal, or investment advice to any
policyholder or prospective policyholder of Hancock
under any circumstances, with respect to a Policy.
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 D, 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 D of this Agreement.
4.3 The termination of this Agreement is governed by the following
provisions:
(a) LMG or Hancock may terminate this Agreement without
cause by twelve (12) months written notice to the
other, sent by mail. This Agreement may be terminated
by mutual agreement of the parties in writing at any
time. The terminating party shall provide fifteen
(15) days written notice of termination or
cancellation of this Agreement to the appropriate
Departments of Insurance if and to the extent
required by applicable law or regulation. LMG and
Hancock shall fulfill any lawful obligations with
respect to such policies affected by this Agreement,
regardless of any dispute between LMG and Hancock.
(b) In the event that any state insurance department
withdraws or cancels LMG's license (or the license of
the individual who is acting on behalf of LMG in such
states that do not permit the licensing of
corporations), or right to sell or conduct its
business, LMG will stop its marketing activity under
this Agreement in that state and notify Hancock.
Hancock may terminate the authority of LMG with
regard to such affected Policies which termination of
authority shall be effective immediately.
(c) Each party shall provide ninety (90) days prior
written notice to the other of a request to revise
the rates in APPENDIX B, or to revise the manner of
payment or to change any of the other terms of this
Agreement. The party receiving such notice must
respond in writing to such request within sixty (60)
days of receipt. No such change shall become
effective unless and until it is agreed to in writing
by both parties.
(d) 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 expiry of the 30 day
notice period.
(e) Either party may terminate this Agreement after
providing 180 days advance written notice of
termination to the other party in the event that the
actual production levels fall below expected levels,
as determined by LMG and Hancock. This Agreement
shall terminate immediately upon expiry of the 180
day notice period, unless the parties mutually agree
otherwise in writing.
(f) Notwithstanding anything herein to the contrary,
Hancock 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
unethical activity or blatant disregard for the terms
and conditions of this Agreement.
(g) Termination of this Agreement by default or breach by
Hancock 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 Hancock of any other rights it might have
under this Agreement.
(h) Termination of this Agreement does not affect in any
way the Administrative Services Agreement executed
concurrently herewith.
5. HOLD HARMLESS AND INDEMNIFICATION
5.1 LMG shall indemnify and hold harmless Hancock 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 Hancock for any act
or omission of LMG which was directed orally or in writing by
Hancock unless LMG knew that such direction by Hancock was
contrary to applicable law or regulation or was otherwise
contrary to good business practices and LMG failed to advise
Hancock.
5.2 Hancock shall indemnify and hold harmless LMG from any and all
claims, liability, costs and expenses, including reasonable
attorneys' fees arising out of Hancock's negligent act(s) or
omission(s); Hancock's refusal to comply with the terms of
this Agreement; Hancock's failure to comply with any law or
regulation with respect to the offering or sale of contracts,
or the records maintained.
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
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 Each party agrees that it will not, knowingly or willingly,
directly or indirectly, at any time during the term of this
Agreement or within two (2) years thereafter, induce or
attempt to induce any policyholder or contract holder of the
other party to terminate, reduce coverage, or replace any
Policy, as referenced in APPENDIX A, or otherwise disturb the
relationship between the other party and any of its
policyholders or contract holders.
6.2 *
6.4 Any Agent for Hancock who desires to sell the Hancock--LMG
proprietary products will need to contract with LMG to sell
such product.
6.5 Hancock 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 Policy form for products
co-developed by Hancock 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
Hancock.
6.6 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, 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 non-performance shall not be a default or a ground
for termination. Notwithstanding the above, LMG agrees that it
will establish and maintain reasonable recovery steps,
including technical disaster recovery facilities,
uninterruptable power supplies for computer equipment and
communications and that as a result thereof LMG will use its
best efforts to ensure that the Computer System shall be
operational within 48 hours of a performance failure. LMG's
Rome, Georgia, and Petaluma, California, offices will provide
for each others' off-premises site for storage of backup
software for the operating systems and data files.
6.7 LMG and Hancock 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
deemed to be uncollectible.
7. PROPRIETARY AND CONFIDENTIAL INFORMATION
7.1 LMG acknowledges that certain information received from
Hancock including, without limitation, information concerning
Hancock customers or consumers, may be proprietary and/or
confidential in nature. All such information shall be used by
LMG solely for purposes of soliciting Policies pursuant to
this Agreement or for providing services pursuant to the
Administrative Services Agreement between the parties. LMG
agrees to indemnify and hold Hancock harmless from any and all
loss and expenses sustained by Hancock as a result of the
unauthorized use of proprietary and/or confidential
information by LMG
7.2 Hancock acknowledges that certain information received from
LMG may be proprietary and/or confidential in nature. All such
information shall be used by Hancock solely for purposes
contemplated by, and in a manner that is consistent with, this
Agreement or the Administrative Services Agreement between the
parties. Hancock 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 Hancock.
7.3 LMG and Hancock 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 Policies
received by Hancock for as long as the Policy remains in
force.
8.2 In the event of any dispute between LMG and Hancock, Hancock
shall continue to pay to LMG any commissions due to any
Wholesaler or Producer that were earned prior to such dispute
except to the extent such commissions are disputed by Hancock.
Furthermore, in the event of the termination of this
Agreement, Hancock guarantees 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 Hancock has not previously remitted such
commissions to LMG. Hancock shall either pay any outstanding
commissions directly to the Producer or Wholesaler, or to LMG,
who will remit such monies to the appropriate Producer or
Wholesaler. Hancock will provide written notice to LMG of its
election to pay such commissions directly to the Producers or
Wholesalers or to LMG. Upon written notice, LMG will use its
best efforts to provide Hancock with information concerning
the Producer(s) and transaction(s) required to pay such
commissions.
9. NON-COMPETE PROVISION
9.1 *
9.2 *
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, and LMG will advise
its Wholesalers and Producers 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 facsimile
or by a delivery service. Such notice shall be directed as
follows:
To LMG: Legacy Marketing Group
Preston Pitts, President
2090 Marina Avenue
Petaluma, California 94954
To Hancock: John Hancock Life Insurance Company
Bruce Jones, Vice President
200 Clarendon Street
Boston, Massachusetts 02117
With copy to: Stokes Lazarus & Carmichael LLP
80 Peachtree Park Drive
Atlanta, Georgia 30309
With copy to: John Hancock Life Insurance Company
Marylou Gill Fierro, Senior Counsel
200 Clarendon Street
Boston, Massachusetts 02117
10.5 To the extent that the rules and regulations do not conflict
with the terms of this Agreement, LMG and Hancock will conform
to the rules and regulations as mutually agreed upon by LMG
and Hancock. 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 Hancock as well as upon LMG's successor and
permissive assignees.
10.8 The persons signing this Agreement on behalf of Hancock 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 or other authority.
10.9 This Agreement, including APPENDICES A, B, C, D and E attached
and the provisions thereof, constitute the entire agreement
between the parties. 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 Hancock pursuant to this Agreement to
auditors designated in writing by Hancock for the purpose of
performing audits for Hancock. Hancock shall give reasonable
advance written notice of an audit and include in that notice
the matters, which it will audit. 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, including the right to interview any LMG
personnel involved in providing or supporting such
responsibilities.
LMG will comply with all the relevant provisions contained in
applicable state and federal codes or statutes. If any
provision of this Agreement is in conflict with applicable
laws or regulations, such provision will be deemed to be
amended to conform with such laws. Further, if the laws of the
State that governs this Agreement require the inclusion of
certain provisions of relevant statutes, this contract shall
be deemed to be amended to conform with such laws.
10.11 LMG and Hancock agree to inform the other of any changes in
its legal structure, and of any material changes in its
officers or partners listed in APPENDIX D.
10.12 Hancock shall be responsible for researching, obtaining, and
the registration of any service marks issued by the U.S.
Patent and Trademark Office for use with the products jointly
developed by LMG and Hancock, and any costs associated
therewith, and Hancock shall own all such rights. Hancock
grants to LMG a gratuitous license for the use of such marks
on LMG and Hancock proprietary products. 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
Hancock that are underwritten by Hancock. Further, LMG grants
to Hancock a gratuitous license for the use of its marks on
LMG and Hancock proprietary products. Each party will not use
the other's Service Marks, Trademarks and Tradenames, or the
name of any affiliate of the other in any way or manner not
specifically authorized in writing by the other.
10.13 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 punitive
damages.
10.14 Any claim or dispute 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, California, under
its Commercial Arbitration Rules and the judgment on the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
10.15 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.
10.16 Survival: Sections 2.7, 5, 6.1, 6.2, 8, 9, 10.14 and 10.15
shall survive the termination of this Agreement.
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In witness whereof, the parties here to have executed this Agreement to take
effect on the effective date specified.
LEGACY MARKETING GROUP
By: /s/ Don J. Dady
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Title: V.P. Product Development
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Date: January 18, 2001
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John Hancock Life Insurance Company
By: /s/ Bruce M. Jones
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Title: Vice President
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Date: January 18, 2001
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APPENDIX A
GEOGRAPHIC TERRITORY:
The District of Columbia and all states except Alabama
POLICY FORMS
(To be incorporated upon completion of final product specifications.)
APPENDIX B
COMMISSION AND MARKETING ALLOWANCE FEES
COMMISSION
OVERRIDE COMMISSION
MARKETING ALLOWANCE
LMG TRAIL COMMISSION
(To be incorporated upon completion of final product specifications.)
APPENDIX C
WHOLESALER AND PRODUCER AGREEMENTS AND/OR APPROPRIATE AMENDMENTS
APPENDIX D
SCHEDULE OF AUTHORIZED PERSONNEL
Representing Hancock
*
*
Representing LMG
Lynn Stafford Chief Information Officer
Gregg Egger Chief Officer of Strategic Development
Steve Taylor Chief Financial Officer
Lynda Regan Chief Executive Officer
Bill Hrabik Chief Operations Officer
Don Dady Vice President of Product Development
Niju Vaswani Vice President of Distribution
Greg Carney Officer of Special Markets
APPENDIX E
Premium Level Goals
(To be incorporated upon completion of final product specifications.)