EXHIBIT 99.(3)(b)
Retirement Income and Investments
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx Xxx
[Genworth Financial Logo] Xxxxxxxx, XX 00000
xxx.xxxxxxxx.xxx
GENERAL AGENT AGREEMENT
NAME OF GENERAL AGENT: ADDRESS OF GENERAL AGENT:
This is an Agreement, made by and among the Genworth Financial companies
included on the Signature Page(s) to this Agreement (collectively, the
"Company") and You, (THE ABOVE NAMED GENERAL AGENT(S)), each severally and
not jointly, executed and effective as of the date signed by the Company as
shown on the Signature Page(s) of this Agreement. Both You and the Company
promise to comply with the terms of this Agreement, and any addendums and/or
amendments to this Agreement, and the terms of Your Sales Compensation
Plan(s).
SECTION I - DEFINITIONS
When used in this Agreement, the terms below have the following special
meanings:
"AFFILIATE" means any company that is a direct or indirect subsidiary of
Genworth Financial, Inc. and is controlled by or under common control with
the Company at any time while this Agreement is in effect.
"AGENT" means Your employee, an employee of Your affiliate or subsidiary, and
any person with whom You or Your affiliate or subsidiary have contracted as
an independent contractor, who is licensed as an insurance agent to market,
sell, deliver, and service insurance products. When the context indicates,
Agent shall mean a licensed person who has been appointed by the Company
pursuant to state insurance law to be an agent of the Company.
"GENERAL AGENT" means the party or parties contracting with the Company under
this Agreement. "You" and "Your" refers to the General Agent.
"PRODUCTS" means insurance and annuity policies/certificates, and riders or
endorsements thereto offered by the Company (including Variable Products, as
defined below, provided You and/or Your broker-dealer affiliate have entered
into a Broker-Dealer Sales Agreement with the Company and/or its
underwriter), which are identified on your Sales Compensation Plan(s).
"RECORDS AND MATERIALS" means all records, files, manuals, forms, materials,
supplies, stationery, business cards, literature, seminar materials, computer
software, diskettes, licenses, papers and books that the Company or an
Affiliate furnishes, licenses, or leases to You for use, in connection with
Your performance under this Agreement or with the Products.
"SALES COMPENSATION PLAN(S)" means the document(s) attached hereto and made a
part hereof, and those that may hereafter be issued to You, as amended and
published from time to time by the Company, which describe(s), among other
matters:
[i] the payment of commissions or other compensation;
[ii] the imposition of penalties and chargebacks;
[iii] production requirements, if any; and
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[iv] any special compensation rules published by the Company on
special class extra premiums, waived or commuted premiums,
advance premiums, premium refunds, conversions, replacements,
reinstatements or other special situations defined by the Company.
"VARIABLE PRODUCTS" means the Company's variable annuity and variable life
insurance products. You and/or Your broker-dealer affiliate are required to
enter into a Broker-Dealer Sales Agreement with the Company and/or its
underwriter prior to soliciting applications for the Company's Variable
Products.
SECTION II - AUTHORITY; DUTIES
1. AUTHORITY. You are hereby appointed as the Company's General Agent, and
You and Your Agents are authorized to do the following, which is the
extent of Your authority:
(a) To solicit applications for Products. You and Your Agents have no
exclusive right to solicit applications for the Company's
Products, and the Company reserves the right to appoint other
general agents or Agents. The Company makes no commitment that
all policies offered by the Company will be deemed authorized
Products hereunder. Any applications You submit are subject to
acceptance or rejection by the Company at its Home Office or
other facility designated by the Company in writing.
(b) To collect initial premium payments for Products solicited by You
but only, unless expressly authorized by the Company in writing
to the contrary, through checks payable to the Company. All
premiums You collect shall be the property of the Company, held
by You in a fiduciary capacity, and remitted immediately to the
Company's designated office.
(c) To recommend licensed Agents to the Company for appointment and
assignment to You. You acknowledge and agree that the Company
reserves the right to terminate, refuse to appoint and/or
contract with any Agent in its sole discretion. No recommendation
of any Agent by You to the Company shall be effective unless and
until such Agent has executed a written agreement with the
Company (if required), meets all regulatory requirements to
solicit applications for the Company's Products, and is accepted
by the Company.
(d) To provide marketing and sales support in connection with the
Company's Products. Such support includes, but is not limited to:
[i] "front office" administrative services (e.g., preparation
of applications);
[ii] training and distribution of approved marketing materials;
[iii] providing or developing proposals and advanced design
support; and
[iv] assisting your Agents in helping their prospects understand
the Products being recommended to them.
Marketing and sales support for Variable Products will be provided only
by registered persons supervised by Your broker-dealer affiliate (or by
You, if You are also a broker-dealer).
2. DUTIES. In accepting this appointment and authority, You (and, in
connection with paragraphs (b) - (j), (l), (m), and (p) - (t), Your
Agents) shall:
(a) Keep complete and accurate records of all transactions pursuant
to the requirements of Section IX of this Agreement.
(b) Not solicit applications for Products unless all licenses or
registrations and Company appointments required by law or by the
Company are in force and effect.
(c) In connection with the sale and servicing of the Products, fully
explain the terms of any Product, make no untrue statements, and
state all relevant facts with respect thereto.
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(d) In connection with Product recommendations, take reasonable steps
to ensure that none of your Agents makes recommendations to any
applicant to purchase, replace or exchange a Product in the
absence of reasonable grounds to believe that the purchase is
suitable for the applicant under all applicable laws, rules and
regulations, including but not limited to (i) the NAIC Senior
Protection in Annuity Transactions Model Regulation as adopted
(modified or unmodified) by the states, and (ii) NASD Conduct
Rules Regarding Recommendations to Customers.
(e) Comply with: (i) all laws, rules, and regulations, which shall
include, but are not limited to, applicable provisions of state
and federal insurance and securities laws, the USA PATRIOT ACT of
2001, the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the Violent Crime
Control and Law Enforcement Act of 1994, and (ii) Company
policies and procedures that apply to Your activities under this
Agreement.
(f) Promptly deliver (i) premium receipts in a form approved by the
Company and (ii) Products originating from applications taken
and/or submitted by You, but only when the applicant appears to
be in insurable condition and the initial premium (if required)
has been duly paid.
(g) (i) Immediately report and remit to the Company or its designee,
any initial premium payments You receive originating from
applications You take and/or submit, (ii) ensure that all premium
checks collected are made payable to the Company, but (iii) not
endorse or attempt to negotiate any checks payable to the Company.
(h) Be responsible for and pay all expenses and fees You incur while
carrying out the terms of this Agreement.
(i) Not alter or change the provisions of any Product, and not incur
any liability, indebtedness or expense on behalf of the Company.
(j) Not offer, pay, or allow to be offered or paid, as an inducement
to any proposed insured or applicant, a rebate of premiums or any
other inducement not specified in the Product (except as may be
expressly allowed by law and in compliance with state rules,
regulations or guidelines).
(k) Be responsible to the Company for all business produced by You
and Your Agents, for the acts of Your Agents and other employees,
and make reasonable efforts, including conducting criminal
background investigations and requiring the completion of
questionnaires, to prevent "prohibited persons" (as that term is
defined in The Violent Crime Control and Law Enforcement Act of
1994) from providing services or selling Products as contemplated
in this Agreement. This prohibition against prohibited persons
may be more restrictive than prohibitions imposed upon other
industries such as banking and securities, and records of such
investigations must be maintained for and provided to the Company
in accordance with the Record Keeping and Audit provisions of
this Agreement. You shall not recommend any Agent for appointment
with the Company who does not meet the Company's requirements for
appointment which includes, but is not limited to, Agents who are
identified as "prohibited persons" as outlined above. In
addition, You shall be responsible for providing prompt written
notification to the Company should You become aware of any acts
of Your Agents and/or other employees arising after You conduct a
criminal or other background investigation that would cause the
Agent(s) and/or employee(s) to not meet the Company's
requirements for appointment.
(l) Immediately upon receipt, deliver to the Company evidence of any
claim for benefits under the Products.
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(m) With respect to diskettes, compact disks or other software (the
"Software") supplied to You by the Company:
[i] not make any modifications to the Software;
[ii] update the Software with any required current information
upon notice thereof by the Company or its Affiliates;
[iii] not reproduce the Software except for back-up purposes or
where more than one computer is used on Your premises; and
[iv] not transfer, rent, sell or in any way make available the
Software to anyone without the prior written consent of the
Company.
(n) At all times during the term of this Agreement, encourage
maintaining liability insurance covering Agents or You or one of
Your affiliates or subsidiaries against claims for damages based
on actual or alleged professional errors or omissions.
(o) Train and supervise Agents to represent the Company in accordance
with all laws and the Company's policies, procedures and
standards.
(p) Not engage in any direct or indirect concerted or targeted sales
or marketing effort to induce any person to surrender, lapse or
forfeit any Product issued pursuant to this Agreement, and shall
not encourage any Agent or other person to do so. Nothing in this
subsection shall prevent You or Your Agents from recommending the
replacement of a Product after conducting a one-on-one meeting
with any person for the purpose of assessing that person's
financial position and needs to determine whether they are best
met by continuing an existing Product or another alternative. The
provisions of this Paragraph shall survive the termination of
this Agreement.
(q) Consistent with the recommendation of the Insurance Marketplace
Standards Association, and to the extent reasonably feasible,
encourage the use of reputable performance/financial needs
analysis tools.
(r) Make all disclosures required by law, or as requested by the
Company, including but not limited to disclosures regarding
compensation for Products sold or offered pursuant to this
Agreement.
(s) With respect to Variable Products (if You and/or Your
broker-dealer affiliate have entered into a Broker-Dealer Sales
Agreement with the Company and/or its underwriter), (i) abide by
the terms of the Variable Product contract and prospectus,
including but not limited to terms specific to the Company's
policies and procedures with respect to frequent trading
(sometimes referred to as "market timing") and late day trading
(collectively referred to as the "Company's Trading Policy"); and
(ii) not sell any such product for purposes of engaging in
frequent trading activity, or in any activity which would be
contrary to the Company's Trading Policy and/or any policy
adopted by an available portfolio in the Variable Product.
(t) Comply with the Company's Anti-Money Laundering Program ("AML
Program"). The Company is subject to rules issued by the
Financial Crimes Enforcement Network ("FinCEN"), a bureau of the
U.S. Department of Treasury, pursuant to the USA PATRIOT Act.
These rules require that (i) each insurance company implement a
program applicable to its covered products that is "reasonably
designed to prevent the insurance company from being used to
facilitate money laundering or the financing of terrorist
activities," and (ii) file Suspicious Transaction Reports where
appropriate. The Company's AML Program may include but is not
limited to: requiring periodic certifications from You as to Your
implementation of an anti-money laundering program relating to
Your Agents as may be required of You or an affiliated entity by
rules adopted by FinCEN; providing the Company
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with all relevant customer-related information necessary for an
effective anti-money laundering program; direct training of Your
Agents by the Company or a third party as to the Company's AML
Program requirements; certifications from You as to training of
Your Agents with respect to anti-money laundering obligations;
testing by the Company or a third party to monitor compliance of
Your Agents with their obligations under the AML Program; and
delegation to You or cooperation by You in the filing of
Suspicious Transaction Reports with FinCEN.
SECTION III - INDEPENDENT CONTRACTOR
1. For any and all purposes, You are and each Agent is an independent
contractor with respect to the Company and not an employee. This
includes, but is not limited to, for purposes of state or federal
income tax, Social Security, worker's compensation and unemployment
compensation. Nothing in this Agreement shall be interpreted as
creating an employer/employee relationship between the Company, on the
one hand, and You or Your Agents on the other hand. You accept any
responsibilities placed on an independent contractor by any statute,
regulation, rule of law, or otherwise.
2. You decide whom to choose as business prospects and when and where to
conduct Your working activities. You acknowledge that You set Your own
business hours.
3. As an independent contractor, You are responsible for paying all
present or future taxes, duties, assessments, and other governmental
charges (except Agent appointment fees) related to this Agreement.
SECTION IV - COMPENSATION
1. The Company will pay You commissions in accordance with the provisions
of this Agreement and Sales Compensation Plans.
This is a vested Agreement subject to the following conditions:
[i] If this Agreement is terminated for "cause" pursuant to
Section VI, commissions due or payable on or after the date
of termination shall be forfeited at the Company's sole
option.
[ii] If this Agreement terminates because of Your dissolution,
insolvency or bankruptcy, no commissions shall be payable
hereunder subsequent to the date of dissolution, insolvency
or bankruptcy unless the prior written consent of the
Company has first been obtained, which consent shall not be
unreasonably withheld.
2. The Company shall pay all commissions to You, and You shall be
responsible for and shall undertake and accept full responsibility and
liability for prompt and full payment of all such commissions to Your
Agents, keeping appropriate commission accounting records, and sending
commission reports to such Agents.
3. CHARGES AND PAYMENT
(a) Any commissions to which You may be entitled hereunder shall be
payable to You only after the due date of the premium on which it
is based and after receipt of the gross premium by the Company at
its designated office, unless otherwise expressly agreed to by
the Company in writing.
(b) No commissions will be payable on account of waived premiums or
premiums refunded for any reason. Any commissions You receive on
account of any such waived or refunded
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premiums shall be promptly returned in full to the Company by You
and shall constitute an indebtedness to the Company until
returned.
(c) If any of the events listed below in this Paragraph (c) should
occur while this Agreement remains in full force and effect or
thereafter, the Company may withhold any commissions that You
would otherwise have been entitled to receive or may have become
entitled to receive under this Agreement:
[i] Your suspension while the Company investigates whether
"cause" for terminating this Agreement exists (pursuant to
Section VI.4); or
[ii] Your disclosure or use of any trade secret or other
proprietary information of the Company or an Affiliate in
competition with or in a manner adverse to the interests of
the Company or an Affiliate.
Such withholding may continue until the violation has been
corrected or the situation has been resolved to the satisfaction
of the Company. No interest shall be payable on any amounts
withheld hereunder.
(d) In addition to other appropriate legal remedies, the Company has
the right to apply any commissions payable to You by the Company
against any debt You owe the Company. You hereby grant the
Company a first security interest in any and all such commissions.
(e) The Company may recover any amounts advanced to You or any
amounts paid on Your behalf by the Company or its Affiliate, or
any amounts charged to You under this Agreement from any
commission due You hereunder but not yet paid.
(f) Compensation for marketing and sales support for a Variable
Product is payable only to the supervising broker-dealer
referenced in Section II.1(d) and does not vest. In the event
that a Variable Product "free-look" is exercised, the Company
will charge back sales and support compensation in accordance
with the terms of the Sales Compensation Plan.
(g) Upon termination of this Agreement, You must promptly pay, on
demand, any debt You owe the Company and/or its Affiliates,
including any chargebacks payable and remaining due to the
Company and/or its Affiliates. Repayment is required even for
chargebacks made on or after termination of this Agreement. This
Paragraph shall survive the termination of this Agreement.
4. COMMISSION STATEMENTS
(a) Except for clerical errors and/or undisclosed material facts, the
regular commission statement the Company issues to You shall be
deemed to be an accurate and complete record accepted by and
satisfactory to You of:
[i] all the commissions the Company owes You, and
[ii] all commission accounts between You and the Company
purporting to be covered by that statement.
(b) Acceptance by You of these regular commission statements
constitutes full satisfaction and agreement by You as to the
amounts and accounts referred to in Paragraph (a) above.
Questions or discrepancies should be brought to the attention of
the Company, either verbally or in writing, within sixty (60)
days of the date of the commission statement, otherwise You will
be deemed to have waived any such question or discrepancy. If the
question or discrepancy is not resolved to Your satisfaction, You
have six (6) months from the date of the commission statement to
object and request a formal review by the Company, otherwise the
information on the commission statement will be deemed accepted.
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5. When an Agent appointed with the Company for any reason terminates
either (i) employment with You or an affiliate or subsidiary or (ii)
his or her relationship as an independent agent contracted with You or
one of Your affiliates or subsidiaries, and becomes associated with
another general agent contracted with the Company, the Company may pay
any trail commissions, add-on premium commissions and renewal
commissions on an insurance policy or annuity contract sold by that
Agent and issued by the Company to the Agent's new general agent
contracted with the Company, provided the Company receives a written
request to do so from the owner of the insurance policy or annuity
contract in question.
SECTION V - RESTRICTIONS ON YOUR ACTIVITIES
1. USING INFORMATION YOU ACQUIRE
(a) All Records and Materials are the property of the Company or an
Affiliate. You shall not reproduce or use or allow the
reproduction, distribution or use of the Records and Materials in
any manner whatsoever, except pursuant to written Company policy
or with the prior written consent of the Company.
(b) You are responsible for the safekeeping of Records and Materials,
which shall be open for audit and inspection by the Company at
any time during Your normal business hours. Upon termination of
this Agreement, all Records and Materials remain the Company's
property and must be returned to the Company immediately, or,
with the consent of the Company, destroyed.
2. ADVERTISING AND USING THE COMPANY NAME AND LOGO
You shall not publish or distribute any advertising or marketing
materials referencing the Company's name, trademarks, servicemarks,
products, logo, or services, including in any manner which would imply
or indicate the offer and/or sale of a security or interest in a
security as defined in the Securities Act of 1933, as amended, without
first obtaining the prior written approval of the Company to do so. You
do not need our prior written approval if we send you marketing or
promotional materials that are intended for public use. You further
agree to comply with any special advertising guidelines published by
the Company from time to time.
SECTION VI - TERMINATION
1. This Agreement may be terminated by either party for any reason and
without cause by giving the other party at least sixty (60) days prior
written notice to that effect. For cause the Company may terminate this
Agreement immediately upon written notice to You.
2. If this Agreement is terminated, appointments for some or all of Your
Agents may be terminated.
3. For purposes of this Agreement, "cause" shall include, but not be
limited to, the following:
(a) Commission of a fraudulent, dishonest or illegal act;
(b) Withholding or misappropriating funds of the Company or an
Affiliate, or its or their policyholders or applicants for any
reason;
(c) Violation of any provision hereunder regarding the making of
Records and Materials available for audit and inspection;
(d) Violation of any provision of Section VIII of this Agreement;
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(e) Voluntarily surrendering Your license after being cited for
misconduct, or involuntary revocation of Your license due to
misconduct;
(f) Your violation of the laws, rules or regulations of any
jurisdiction or any governmental authority exercising
jurisdiction over You; and
(g) Any material breach of this Agreement, including but not limited
to the failure or refusal to comply with any policies or programs
affecting Agents and other distributors of its Products (e.g.,
the Company's AML Program and the Company's Trading Policy) that
the Company has been required to institute pursuant to federal or
state law.
The Company shall have the right to deem this Agreement to have been
terminated for cause if, after the Agreement terminates without cause,
You or any of Your Agents at Your direction violate the provisions of
Section II.2(p) of this Agreement.
4. If the Company reasonably believes it may have the right to terminate
this Agreement for cause, the Company can notify You that it is
suspending this Agreement while it investigates whether cause for
termination exists. This suspension can be imposed in place of
terminating the Agreement, to provide time for determining the facts.
Until a suspension is withdrawn, it has the same effect on Your rights
to solicit applications for Products and Your rights to commissions and
other compensation hereunder as does notice of termination for cause.
The Company will notify You whether Your suspension is to be withdrawn
or the Agreement is to be terminated for cause. If the suspension is
withdrawn, all accumulated compensation will be paid immediately, and
you may solicit applications for Products. If the Agreement is
terminated, the termination shall take effect as of the date You
received the notice of suspension, and no further commissions shall be
due or payable hereunder for any reason after the date of termination.
5. This Agreement terminates automatically in the event:
(a) You are a natural person who dies, retires or becomes totally and
permanently disabled (You shall be considered totally and
permanently disabled if, by reason of a physical or mental
condition, You are unable to perform Your obligations and duties
under this Agreement); or
(b) Any license or registration You are required to maintain under
the terms of this Agreement is cancelled or not renewed, but such
termination shall only relate to the state or jurisdiction where
Your license or registration is cancelled or not renewed; or
(c) You are a corporation or partnership that is dissolved or
terminated.
6. If this Agreement is terminated for cause pursuant to this Section VI,
you shall and hereby do release the Company from any claim for profits,
anticipated profits or earnings hereunder, other than for commissions
earned prior to the termination. You further acknowledge and agree that
You have no claim for a refund or reimbursement of any funds You have
advanced or expenses You have paid or incurred in connection with Your
responsibilities under this Agreement, unless the Company specifically
authorized a reimbursement, in writing, prior to termination of this
Agreement.
7. Unless terminated for cause pursuant to this Section VI, the Company
shall continue to provide You with information on all Products sold by
You or Your Agents, unless a change of Agent has been requested by the
Product owner.
SECTION VII - INDEMNIFICATION
1. You shall indemnify and hold harmless the Company and its Affiliates,
including the Company's and its Affiliates' officers, directors,
employees, agents and/or representatives, from any and all expenses,
attorney fees, costs, causes of action and damages resulting from,
arising from, or based upon the following acts or alleged acts by You
or Your present or former Agents or employees:
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(a) Your failure to remain licensed as required by applicable laws;
(b) Negligent, reckless or intentional misconduct by You or Your
present or former Agents or employees;
(c) Any material breach of this Agreement by You or Your present or
former Agents or employees;
(d) Any alleged misrepresentation or other illegality done by You or
your present or former Agents or employees;
(e) Any failure by You to pay commissions to Your Agents as required
by Section IV of this Agreement; or
(f) Engaging or allegedly engaging in any activity which is in
violation of the Company's Trading Policy.
2. The Company shall indemnify, defend, and hold harmless General Agent
from any and all expenses, attorney fees, costs, causes of action and
damages resulting from, arising from, or based upon the following acts
or alleged acts:
(a) The Company's failure to remain licensed as required by
applicable laws;
(b) Any allegation that the Company's Products violate state
insurance laws or state or federal securities laws;
(c) Any alleged misrepresentation or other illegality arising from
the Company's approved advertising or sales materials; or
(d) Negligent, reckless or intentional misconduct of the Company or
its employees.
3. The party seeking indemnification agrees to notify the indemnifying
party within a reasonable time of receipt of a claim or demand. In the
case of a lawsuit, the party seeking indemnification must notify the
indemnifying party within ten (10) calendar days of receipt of written
notice that a lawsuit has been filed.
4. The Company may negotiate, settle and/or pay any claim or demand
against any of the parties identified in Subsection VII.1 hereof which
arises from:
(a) Any wrongful act or transaction or any alleged wrongful act or
transaction by You or Your present or former Agents or employees.
"Wrongful act or transaction" includes, but is not limited to,
fraud, misrepresentation, deceptive practices, negligence, errors
or omissions, or other unlawful conduct;
(b) The material breach of any provision of this Agreement; or
(c) The violation or alleged violation of any insurance or securities
laws.
Upon sufficient proof that the claim or demand arose from the
occurrences listed in this Subsection 4, the Company is entitled to
reimbursement for any amount paid plus any and all fees and expenses
incurred in investigating, defending against and/or paying the claim or
demand.
5. You shall immediately notify the Company in writing of any complaint or
grievance relating to the Products including, but not limited to, any
complaint or grievance arising out of or based on advertising,
promotional materials, or sales literature approved by the Company or
the marketing, promotion, or sale of the Products.
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6. You shall promptly furnish all relevant, non-privileged written
materials requested by the Company or its Affiliate in connection with
the investigation of any complaint or grievance relating to the
Products and will cooperate in the investigation in connection with
such complaint or grievance. The Company or its Affiliate will notify
You in a timely manner of any complaint or grievance arising out of, or
relating to, or based on this Agreement.
7. You shall immediately notify the Company in writing of any (i)
investigation or examination by any state, federal, or other regulatory
organization regarding the marketing, promotion, and sales practices
relating to the Products, or (ii) pending or threatened litigation
regarding the marketing, promotion, and sales practices relating to the
Products.
8. The provisions of this Section VII shall survive the termination of
this Agreement.
SECTION VIII - USE OF NON-PUBLIC INFORMATION; CONFIDENTIALITY
1. DEFINITIONS. When used in this Section VIII, the terms below shall have
the following special meanings:
(a) "CONSUMER" means an individual who seeks to obtain, obtains or
has obtained insurance or another financial product or service
from the Company pursuant to this Agreement, which product or
service is intended to be used for personal, family or household
purposes.
(b) "CONSUMER INFORMATION" means non-public personally identifiable
financial and health information as those terms are defined by
applicable Laws (i) provided by or on behalf of a Consumer to the
Company, including information obtained by You, and (ii)
resulting from the Company's transactions or services related to
a transaction with the Consumer. Consumer Information includes
all lists of customers, former customers, applicants and
prospective customers, and any list or grouping of customers
derived from personally identifiable financial or health
information that is not publicly available. Consumer Information
obtained by the Company in regards to Products issued by the
Company shall remain the property of the Company.
(c) "CONFIDENTIAL INFORMATION" means any data or information
regarding market share percentage, production goals, monthly
production targets, top producers, actual product production,
broker product listings, total sales data of the disclosing
party, marketing strategies, strategic plans, financial or
operational data, pricing information, sales estimates, business
plans, business relationships, and internal performance results
relating to the past, present or future business activities of
the disclosing party, its subsidiaries and affiliated companies
and the customers, clients, employees and suppliers of any of the
foregoing.
(d) "LAWS" mean all applicable requirements of Consumer privacy laws,
judicial interpretations, rules and regulations, including but
not limited to the Xxxxx-Xxxxx-Xxxxxx Act and where applicable,
the Health Insurance Portability and Accountability Act.
2. CONFIDENTIALITY OBLIGATIONS. Except as expressly authorized by prior
written consent of the disclosing party, each party shall:
(a) use and disclose Consumer Information in accordance with all
applicable Laws and its privacy policy;
(b) limit access to any of the disclosing party's Confidential
Information and Consumer Information to its partners,
shareholders, officers, directors, employees, representatives,
agents, advisers, affiliates or representatives of its agents or
advisers who need access to such information pursuant to this
Agreement. Confidential Information shall only be used in
connection therewith;
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(c) use and disclose Consumer Information only to (i) effect,
administer, enforce or process transactions requested by a
Consumer; (ii) adhere to applicable regulatory requirements;
(iii) evaluate each party's performance under this Agreement; or
(iv) perform services on behalf of the other party hereto
including, but not limited to, offering products and/or services
to Consumers. Each party shall use Consumer Information disclosed
by the other solely for the purposes for which it was disclosed
and must not use or disclose information for other purposes,
except as permitted or required by applicable Laws and subject to
any agreements between the parties;
(d) prior to disclosing Consumer Information to an affiliate for the
affiliate to perform services or functions pursuant to this
Agreement, the disclosing party must restrict the affiliate from
disclosing Consumer Information in a manner consistent with this
Agreement;
(e) prior to disclosing Consumer Information to a third party to
perform services or functions under this Agreement, the
disclosing party must enter into a written confidentiality
agreement requiring the third party to maintain the
confidentiality of such information in accordance with the
requirements of this Agreement; and
(f) safeguard all such Confidential Information and Consumer
Information received under this Agreement by implementing and
maintaining appropriate administrative, technical and physical
safeguards to: (i) ensure the security and confidentiality of
Confidential Information and Consumer Information; (ii) protect
against any anticipated threats or hazards to the security or
integrity of Confidential Information and Consumer Information;
and (iii) protect against unauthorized access to or use of
Confidential Information and Consumer Information which could
result in substantial harm or inconvenience to any Consumer.
3. EXCEPTIONS TO CONFIDENTIALITY.
(a) The obligations of confidentiality and restrictions on use set
forth in this Section VIII shall not apply to any Consumer
Information that:
[i] was already in the possession of the nondisclosing party
prior to receipt thereof, directly or indirectly, from the
disclosing party; or
[ii] is required to be disclosed pursuant to applicable Laws,
regulatory requests, legal process, subpoena or court order.
Nothing in this Section VIII shall prohibit the Company from
communicating with a Consumer for any reason.
(b) The obligations of confidentiality and restrictions set forth in
this Section VIII shall not apply to any Confidential Information
that:
[i] was in the public domain prior to the date of this
Agreement or subsequently came into the public domain
through no fault of the nondisclosing party or violation of
this Agreement;
[ii] was lawfully received by the nondisclosing party from a
third party free of any obligation of confidence to such
third party;
[iii] was already in the possession of the nondisclosing party
prior to receipt thereof, directly or indirectly, from the
disclosing party;
[iv] is required to be disclosed pursuant to applicable Laws,
regulatory requests, legal process, subpoena or court
order; or
page 11 of 15
[v] is subsequently and independently developed by employees,
consultants or agents of the nondisclosing party without
reference to or use of the Confidential Information
disclosed under this Agreement.
4. AUDIT. Each party may audit the other party's use and disclosure of
Confidential Information and Consumer Information, as well as its
safeguards to protect Confidential Information and Consumer
Information, during regular business hours upon forty-eight (48) hours
prior notice.
5. TERM. The provisions of this Section VIII shall survive termination of
this Agreement
SECTION IX - RECORD KEEPING AND AUDITS
1. You shall keep appropriate records of the services provided under this
Agreement as required by applicable laws, rules or regulations, or as
reasonably requested by the Company in accordance with its policies,
procedures and standards. In conjunction with this requirement, the
Company can audit, at times reasonably agreed to by the Company and
You, Your compliance with record keeping requirements. Further, the
Company is entitled to access to and copies of any policies and
procedures developed or utilized by You regarding these records upon
reasonable request of the Company.
2. In conjunction with Section II.2(k), You shall provide the Company with
documentation showing compliance with applicable background-check laws
and regulations on any individual employees or Agents that the Company
may identify as a result of its ongoing monitoring procedures. Except
as stated in Subsection 3 below, the number of employees or Agents
identified for such audit checks shall be reasonable in number.
3. You shall cooperate with the Company and provide the Company with
documentation relevant to any regulatory examination or investigation
of You or the Company, such as market-conduct exams or other
investigations, by state insurance regulators or other state or federal
regulators. Within fortyeight (48) hours of Your receipt of a request
by the Company (made as part of or in connection with a regulatory
examination or investigation), You shall provide the Company with all
records related to any provision of this Agreement, Agent background
checks as described in Section II.2(k) and Agent continuing education.
SECTION X - MISCELLANEOUS PROVISIONS
1. NOTICES. All notices or other communications given under this Agreement
may be made by guaranteed overnight delivery, telecopy (including
facsimile transmission), electronic mail, U.S. Postal Service delivery,
or certified mail. If directed to You, notice is effective when
addressed to Your last known address on file with the Company, if
different from the address shown on page 1 of this Agreement. If
directed to the Company, notice is effective when addressed to General
Counsel, Retirement Income & Investments, 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx Xxx, Xxxxxxxx, XX 00000.
2. RESERVATION OF RIGHTS. The Company reserves the right, in its sole
discretion, upon prior written notice, to withdraw or modify Products,
including but not limited to the premium rates charged and the benefits
provided, and to change the underwriting guidelines or practices for
Products at any time, and may unilaterally amend your Sales
Compensation Plan(s) in accordance with the terms and provisions
thereof. The Company shall provide you with at least thirty (30) days
notice of any reduction in sales compensation rates unless such rate
reduction is required to be implemented sooner for the Company to be in
compliance with a regulatory or other legal requirement. Such changes
will be effective only on a prospective basis beginning on the
effective date of such change.
3. ENTIRE CONTRACT. No oral or written representations were made about
this Agreement or about the relationship between You and the Company
that are not set forth in this Agreement, and other than any
broker-dealer sales agreement that may have been or is hereafter
entered into between you and/or your broker-dealer affiliate and the
Company's broker-dealer affiliate with respect to Variable
page 12 of 15
Products, this Agreement (including any addendums or amendments hereto
and the Sales Compensation Plans) constitutes the entire contract
between You and the Company regarding the subject matter hereof. Your
rights and the Company's rights are governed only by this written
Agreement (and by the broker-dealer sales agreement, if applicable) and
by any other subsequent written agreements or amendments hereto
executed in accordance with the terms and provisions hereof. This
Agreement may only be amended in writing. No oral representations or
promises shall be binding on the Company.
4. PRIOR AGREEMENTS SUPERSEDED. This Agreement supersedes any agency
agreement between the parties which was in effect immediately prior to
the effective date of this Agreement. However, this provision does not
impair your right to any compensation payable under such prior
agreement.
5. ARBITRATION. Except as set forth in Subsection 6 below, any dispute
arising out of or relating to this Agreement, including the breach,
termination or validity of this Agreement and the arbitrability of
disputes between the parties, shall be finally resolved by arbitration
by three arbitrators in accordance with the CPR International Institute
for Conflict Prevention and Resolution Rules for Non- Administered
Arbitration; provided, however, that any such dispute need not be
arbitrated while (i) a customer dispute is pending in a court of law or
equity against You (or Your Agent) and the Company, and (ii) You or
Your Agent are alleged to have engaged in fraud, other intentional
misconduct, an illegal act, or conduct otherwise outside the scope of
this Agreement. Furthermore, nothing in this provision shall prevent
the Company from asserting a claim (including a counterclaim or
cross-claim) against, impleading, or otherwise joining You or Your
Agent to any court proceeding between the Company and a customer. The
arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C.
Sections 1 ET SEQ., and judgment upon the award rendered by the
arbitrators may be entered by any court having jurisdiction thereof.
The place of the arbitration shall be Henrico County, Virginia. Except
as may be required by law, neither party nor any arbitrator may
disclose the existence, content, status or results of any arbitration
hereunder without the prior written consent of both parties.
6. EQUITABLE RELIEF. Each party agrees that money damages would not be a
sufficient remedy for breach of the confidentiality and other
obligations of this Agreement. Accordingly, in addition to all other
remedies that each party may have, each party shall be entitled to
specific performance and injunctive relief or other equitable relief
from a court of law as a remedy for any breach of this Agreement
without the requirement of posting a bond or other security. Any legal
proceeding initiated pursuant to this Subsection 6 must be brought
exclusively in Henrico County, Virginia, and in no other forum. All
parties to this Agreement expressly consent to jurisdiction in Henrico
County, Virginia.
7. GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Virginia.
8. ASSIGNMENT. You may not assign this Agreement or any payment You become
entitled to receive hereunder without the Company's prior written
consent, and any attempt to do so shall be void. The Company reserves
the right to assign this Agreement to any company, person or
corporation controlled by or under common control with the Company at
any time while this Agreement is in effect upon notice to You.
9. WAIVER. If a party to this Agreement waives any provision of this
Agreement, the waiver shall apply only to that provision, and not to
any other provision(s) of this Agreement. No waiver shall be effective
unless it is in writing and signed by a duly authorized officer of the
party.
10. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterpart copies, each of which shall be deemed an original and all
of which, together, shall constitute one and the same instrument.
12. CHANGES IN MANAGEMENT. You shall give the Company advance notice of all
changes in the management or ownership of the General Agent. The
Company reserves the right to terminate this
page 13 of 15
Agreement if it does not approve of the change in the management of the
General Agent. This Agreement cannot be sold, conveyed, or otherwise
transferred by the General Agent.
13. COOPERATION. Each party to this Agreement shall cooperate with the
other and with all governmental authorities, including, without
limitation, the SEC, the NASD and any state insurance or securities
regulators, and shall permit such authorities reasonable access to its
books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated under this
Agreement.
SECTION XI- SIGNATURE PAGE(S). The Signature Page(s) to this Agreement
immediately follow this Section.
[Remainder of Page Intentionally Blank]
page 14 of 15
SIGNATURE PAGE - TO GENERAL AGENT AGREEMENT
In witness whereof you and the Company have entered into this Agreement
through duly authorized representatives at the places and on the dates set
forth below.
EXECUTED ON BEHALF OF:
By: _______________________________
Title: ____________________________
Name: _____________________________
(Print or Type)
Date: _____________________________
Tax ID#: __________________________
EXECUTED ON BEHALF OF
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK
GENWORTH LIFE INSURANCE COMPANY
AMERICAN MAYFLOWER LIFE INSURANCE COMPANY OF NEW YORK
FIRST COLONY LIFE INSURANCE COMPANY:
By: _______________________________
Title: ____________________________
Name: _____________________________
(Print or Type)
Date: _____________________________
page 15 of 15
BROKER-DEALER SALES AGREEMENT
NAME OF BROKER-DEALER: ADDRESS OF BROKER-DEALER:
This Agreement is made this ______day of ____________, 20___ by and between
Capital Brokerage Corporation, a Washington corporation with its principal
office as listed above ("Capital Brokerage") and
_______________________________________________________, a
_________________________________ corporation with its principal office as
listed above ("Broker-Dealer").
In consideration of the mutual benefits to be derived and intending to be
legally bound the parties hereby agree to the following terms and conditions:
SECTION I - DEFINITIONS
1.1 Genworth Life and Annuity Insurance Company ("Genworth Life &
Annuity"), a Virginia corporation, and Genworth Life Insurance Company
of New York ("Genworth Life of New York") a New York corporation, which
have developed certain variable life insurance policies (hereafter
referred to as "Policies", listed in Schedule A, which is attached
hereto and made part of this Agreement) and certain variable annuity
contracts (hereafter referred to as "Annuities", listed in Schedule A,
which is attached hereto and made part of this Agreement) registered
with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933 (the "1933 Act").
1.2 Capital Brokerage is a Broker-Dealer registered as such under the
Securities Exchange Act of 1934 (the "1934 Act") and a member of the
National Association of Securities Dealers, Inc. ("NASD"). Genworth
Life & Annuity and Genworth Life of New York have appointed Capital
Brokerage as principal underwriter for the Policies and Annuities.
Broker-Dealer is registered as a Broker-Dealer under the 1934 Act, is a
member of the NASD and is properly licensed and appointed to promote,
offer and sell the Policies and Annuities.
1.4 Registered Representatives are NASD registered individuals either
employed by or associated with the Broker-Dealer, or duly licensed
through an affiliated company of Broker-Dealer, and whom Broker-Dealer
wishes to have appointed by Genworth Life & Annuity and/or Genworth
Life of New York to sell Policies and Annuities ("Registered
Representatives").
2. REPRESENTATIONS AND WARRANTIES OF CAPITAL BROKERAGE
2.1 Capital Brokerage represents and warrants that:
a. it has full power and authority to enter into this Agreement and
that it has all appropriate licenses to carry on its business and
to market the Policies and the Annuities;
b. the 1933 Act Registration Statements pertaining to the Policies
and the Annuities filed with the SEC have been declared
effective;
Genworth Financial, Inc. and our family of companies remain affiliates of
General Electric Company: American Mayflower Company of New York, Capital
Brokerage Corporation, Federal Home Life Insurance Company, First Colony Life
Insurance, Genworth Life of New York Assurance Company of New York, GE Group
Life Assurance Company, GE Life and Annuity Assurance Company, GE Private
Asset Management, Inc., General Electric Capital Assurance Company, General
Electric Mortgage Insurance Corporation, Genworth Financial Asset Management,
LLC., Professional Insurance Company, The Terra Financial Companies, Inc.
c. the 1933 Act Registration Statements pertaining to the Policies
and the Annuities comply or will comply in all material respects
with the provisions of the 1933 Act, the 1934 Act, the Investment
Company Act of 1940 (the "1940 Act") and the rules and
regulations of the SEC; and
d. the 1933 Act Registration Statements do not contain an untrue
statement of a material fact or fail to state a material fact
required to be stated.
2.2 Section 2.1c. shall not apply to statements made in or omissions from
Registration Statements and any related materials, which statements or
omissions were made in reliance upon written statements furnished by
Broker-Dealer.
2.3 Capital Brokerage represents and warrants that it, or an affiliate of
Capital Brokerage, will use its best efforts to obtain insurance
licenses and appointments to allow Registered Representatives to sell
the Policies or the Annuities provided Broker-Dealer cooperates in
obtaining such licenses.
3. REPRESENTATIONS OF BROKER-DEALER
3.1 Broker-Dealer represents and warrants that it has full power and
authority to enter into this Agreement and that it has all appropriate
licenses and or registrations to carry on its business and to market
the Policies and the Annuities directly or through another subsidiary
or affiliate that is properly licensed to sell insurance products.
3.2 Broker-Dealer represents and warrants that it is registered as a
Broker-Dealer under the 1934 Act, is a member in good standing of the
NASD, is bonded as required by all applicable laws and regulations, and
that it, or a subsidiary or affiliate, has all insurance licenses
required by the states in which the Broker-Dealer intends to market the
Policies and the Annuities.
3.3 Broker-Dealer represents and warrants that all individuals recommended
for licensing and appointment to sell the Policies and Annuities will
be Registered Representatives who are appropriately registered with
the NASD and who possess or can obtain all required insurance
licenses.
3.4 Broker-Dealer further represents and warrants that:
a. it made or will make a thorough and diligent inquiry and
investigation relative to each Registered Representative it seeks
to have appointed to sell the Policies and Annuities including an
investigation of the Registered Representative's identity and
business reputation;
b. all Registered Representatives are or will be personally known to
Broker-Dealer, are of good moral character, reliable, financially
responsible and worthy of an insurance license;
c. all examinations, training, and continuing educational
requirements have been or will be met for the NASD and the
specific state(s) in which Registered Representative is
requesting an insurance license;
d. if Registered Representative is required to submit to Genworth
Life & Annuity and/or Genworth Life of New York a picture or a
signature in conjunction with an application for an insurance
license, that any such items forwarded to Genworth Life & Annuity
and/or Genworth Life of New York will be those of Registered
Representative and any evidence of a securities registration
forwarded to Genworth Life & Annuity and/or Genworth Life of New
York will be a true copy of the original;
e. no Registered Representatives will apply for insurance licenses
with Genworth Life & Annuity and/or Genworth Life of New York in
order to place insurance on their life or property, the lives or
property of their relatives, or property or lives of their
associates;
Page 2 of 13
f. each Registered Representative will receive close and adequate
supervision consistent with the requirements of the NASD, and
Broker-Dealer will review, when necessary, any Policies or
Annuities written by Registered Representative;
g. Broker-Dealer will be responsible for all acts and omissions of
its Registered Representatives within the scope of their
appointment with Genworth Life & Annuity and/or Genworth Life of
New York or as Registered Representatives;
h. Broker-Dealer will not permit its Registered Representatives to
act as insurance agents until properly trained (including
training in the Policies and Annuities), licensed and appointed
nor will Broker-Dealer pay compensation to any Registered
Representative not properly licensed and appointed to sell the
Policies and Annuities;
i. Broker-Dealer will immediately notify Capital Brokerage and
Genworth Life & Annuity and/or Genworth Life of New York of any
change in the NASD registration or insurance licensing status of
any Registered Representative and will maintain a list of all
Registered Representatives authorized to sell the Policies or the
Annuities;
j. Broker-Dealer agrees to indemnify, defend and hold Genworth Life &
Annuity, Genworth Life of New York, and Capital Brokerage
harmless against any losses, claims, damages, liabilities or
expenses, including reasonable attorneys fees, to which Capital
Brokerage, Genworth Life & Annuity, or Genworth Life of New York
may be liable to the extent that the losses, claims, damages,
liabilities or expenses, including reasonable attorneys fees,
arise out of allegations that Broker-Dealer did not have the
right or authority to make discretionary purchases or to make or
change a client's asset allocation; and
k. Broker-Dealer, in the conduct of its business selling Policies and
the Annuities, shall observe high standards of commercial honor and
just and equitable principles of trade consistent with the
Conduct Rules of the NASD.
l. With respect to any diskettes, CD-ROMs or other software supplied
to Broker-Dealer and/or its Registered Representatives by Genworth
Life & Annuity, Genworth Life of New York or Capital Brokerage
(the "Software"), Broker-Dealer agrees:
(1) not to make any modifications the Software;
(2) to update the Software with any required current information
upon notice thereof by the Genworth Life & Annuity, Genworth
Life of New York, Capital Brokerage or its marketing
affiliates;
(3) not to reproduce the Software except for back-up purposes or
where more than one computer is used on your premises; and
(4) not to transfer, rent, sell or in any way make available the
Software to anyone without the prior written consent of the
Genworth Life & Annuity, Genworth Life of New York or Capital
Brokerage.
4. SALE OF POLICIES AND ANNUITIES
4.1 Soliciting Applications.
a. Broker-Dealer is hereby authorized by Capital Brokerage to
solicit applications for the purchase of Policies and Annuities
through its Registered Representatives in states where the
Broker-Dealer and its Registered Representatives are
appropriately licensed and appointed. This authorization is
non-exclusive and is limited to the states in which Policies and
Annuities have been approved for sale.
Page 3 of 13
b. Broker-Dealer shall have no authority on behalf of Capital
Brokerage, Genworth Life & Annuity, or Genworth Life of New York
to:
(1) make, alter or discharge any contract;
(2) waive or modify any terms, conditions or limitations of any
Policy or Annuity;
(3) extend the time for payment of any premiums, bind Genworth
Life & Annuity or Genworth Life of New York to the
reinstatement of any terminated Policy, or accept notes for
payment of premiums;
(4) adjust or settle any claim or commit Genworth Life &
Annuity or Genworth Life of New York with respect thereto;
(5) incur any indebtedness or liability, or expend or contract
for the expenditure of funds; or
(6) enter into legal proceedings in connection with any matter
pertaining to Capital Brokerage's, Genworth Life &
Annuity's, or Genworth Life of New York's business without
the prior consent of Capital Brokerage, Genworth Life &
Annuity, or Genworth Life of New York, unless Broker-Dealer
is named as a party to the proceedings.
c. Broker-Dealer acknowledges that only applications bearing the
signature of a Registered Representative who is on the list of
properly licensed Registered Representatives provided by
Broker-Dealer, according to this Agreement, will be processed by
Genworth Life & Annuity or Genworth Life of New York.
4.2 Suitability.
a. Capital Brokerage wishes to ensure that the Policies and
Annuities solicited by Broker-Dealer through Registered
Representatives will be issued to persons for whom they will be
suitable.
b. Broker-Dealer shall take reasonable steps to ensure that none of
its Registered Representatives makes recommendations to any
applicant to purchase, replace or exchange a Policy or Annuity
in the absence of reasonable grounds to believe that the purchase
is suitable for the applicant under the NASD Conduct Rules
regarding Recommendations to Customers.
c. A determination of suitability for the purchase, replacement or
exchange of a Policy or Annuity shall include, but not be limited
to, a reasonable inquiry of each applicant concerning the
applicant's financial status, tax status, and insurance and
investment objectives and needs.
4.3 Delivery of Prospectus (es) by Broker-Dealer.
a. The current Prospectus (es), the Statement(s) of Additional
Information where required by law, and all Supplements relating
to the Policies and the Annuities shall be delivered by
Broker-Dealer to every applicant seeking to purchase a Policy or
Annuity prior to the completion of an application.
b. Broker-Dealer shall not give any information or make any
representations concerning the Policies or the Annuities,
Genworth Life & Annuity, Genworth Life of New York, or Capital
Brokerage unless the information or representations are contained
in the current Prospectus (es) or are contained in sales
literature or advertisements approved in writing by the NASD,
Genworth Life & Annuity and/or Genworth Life of New York, and
Capital Brokerage.
Page 4 of 13
4.4 Issuance of Policies or Annuities.
a. Genworth Life & Annuity or Genworth Life of New York, at their
sole discretion, will determine whether to issue a Policy or an
Annuity.
b. Once a Policy or Annuity has been issued:
(1) Genworth Life & Annuity or Genworth Life of New York will
mail it promptly, accompanied by any required notice of
withdrawal rights and any additional required documents to
the individual or entity designated by the Broker-Dealer;
(2) Genworth Life & Annuity or Genworth Life of New York will
confirm to the owner, with a copy to Broker-Dealer, the
allocation of the initial premium under the Policy or the
Annuity; and
(3) Genworth Life & Annuity or Genworth Life of New York will
also notify the owner of the name of the Broker-Dealer
through whom the Policy or the Annuity was solicited.
4.5 Genworth Life & Annuity or Genworth Life of New York will administer
all Policies and Annuities issued according to the terms and conditions
set forth in the Policy or Annuity.
4.6 Genworth Life & Annuity or Genworth Life of New York, at its own
expense, will furnish to Broker-Dealer, in reasonably sufficient
quantities, the following materials:
a. The current Prospectus (es) for the Policies and Annuities and
any underlying mutual funds;
b. Any Prospectus Supplement for the Policies and Annuities and any
underlying mutual funds, including any Statement(s) of
Additional Information if requested by client or required by law;
c. Advertising materials and sales literature approved for use by
Genworth Life & Annuity and/or Genworth Life of New York; and
d. Applications for Policies and Annuities.
4.7 Money due Genworth Life & Annuity, Genworth Life of New York or Capital
Brokerage.
a. All money payable in connection with the Policies or the
Annuities whether as premium or otherwise is the property of the
appropriate insurer, either Genworth Life & Annuity or Genworth
Life of New York.
b. Money due Genworth Life & Annuity or Genworth Life of New York
and received by the Broker-Dealer under this Agreement shall be
held in a fiduciary capacity and shall be transmitted immediately
to either Genworth Life & Annuity or Genworth Life of New York in
accordance with the administrative procedures of Genworth Life &
Annuity or Genworth Life of New York.
c. Unless express prior written consent to the contrary is given to
Broker-Dealer by either Genworth Life & Annuity or Genworth Life
of New York, money due Genworth Life & Annuity or Genworth Life
of New York shall be forwarded without any deduction or offset
for any reason, including by example, but not limitation, any
deduction or offset for compensation claimed by Broker-Dealer.
Page 5 of 13
d. Unless express prior written consent to the contrary is given to
Broker-Dealer by Genworth Life & Annuity or Genworth Life of New
York, checks or money orders in payment for Policies or
Annuities, shall be drawn to the order of "Genworth Life and
Annuity Insurance Company" or "Genworth Life Insurance Company of
New York".
e. Checks drawn by or money orders purchased by the Registered
Representative will not be accepted by Genworth Life & Annuity,
Genworth Life of New York, or Capital Brokerage.
5. INDEMNIFICATION
5.1 Capital Brokerage agrees to indemnify and hold harmless Broker-Dealer
against any losses, claims, damages, liabilities or expenses, including
reasonable attorneys fees, to which Broker-Dealer and any affiliate,
parent, officer, director, employee or agent may be liable to the
extent that the losses, claims, damages, liabilities or expenses,
including reasonable attorneys fees, arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission of material fact contained in the 1933 Act
Registration Statement covering the Policies or the Annuities or in the
Prospectuses for the Policies or the Annuities or in any written
information or sales materials authorized and furnished to
Broker-Dealer by Capital Brokerage, Genworth Life & Annuity, or
Genworth Life of New York.
5.2 Capital Brokerage will not be liable to the extent that such loss,
claim, damage, liability or expense, including reasonable attorneys'
fees, arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon
information provided by Broker-Dealer and/or any affiliate, parent,
officer, director, employee or agent, including, without limitation,
negative responses to inquiries furnished to Capital Brokerage,
Genworth Life & Annuity, or Genworth Life of New York by or on behalf
of Broker-Dealer, specifically for use in the preparation of the 1933
Act Registration Statement covering the Policies or the Annuities or in
any related Prospectuses.
5.3 Broker-Dealer agrees to indemnify and hold harmless Capital Brokerage,
Genworth Life & Annuity, and Genworth Life of New York, against any
losses, claims, damages, liabilities or expenses, including reasonable
attorney's fees, to which Capital Brokerage, Genworth Life & Annuity,
Genworth Life of New York, and any affiliate, parent, officer,
director, employee or agent may be liable to the extent that the
losses, claims, damages, liabilities or expenses, including reasonable
attorneys fees, arise out of or are based upon:
a. Any untrue statement or alleged untrue statement of a material
fact or omission or alleged omission of a material contained in
the Registration Statement covering the Policies or the Annuities
or related Prospectuses but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission is made in reliance upon information, including, without
limitation, negative responses to inquiries, furnished to Capital
Brokerage, Genworth Life & Annuity, or Genworth Life of New York
by or on behalf of Broker-Dealer specifically for use in the
preparation of the 1933 Act Registration Statement covering the
Policies or the Annuities or in any related Prospectuses;
b. Any unauthorized use of advertising materials or sales literature or
any verbal or written misrepresentations or any unlawful sales
practices concerning the Policies or the Annuities by
Broker-Dealer, its Registered Representatives or its affiliates;
c. Broker-Dealer's violation of any provisions of Section 10 of this
Agreement; and
d. Claims by Registered Representatives or employees of Broker-Dealer
for commissions or other compensation or remuneration of any type.
5.4 The party seeking indemnification agrees to notify the indemnifying
party within a reasonable time of receipt of a claim or demand. In the
case of a lawsuit, the party seeking indemnification must notify the
indemnifying party within ten (10) calendar days of receipt of written
notification that a lawsuit has been filed.
Page 6 of 13
5.5 Broker-Dealer agrees that Genworth Life & Annuity, Genworth Life of New
York or Capital Brokerage may negotiate, settle and or pay any claim or
demand against them which arises from:
a. any wrongful act or transaction of Broker-Dealer or its
Registered Representatives. Wrongful act or transaction
includes, but is not limited to, fraud, misrepresentation,
deceptive practices, negligence, errors or omissions;
b. the breach of any provision of this Agreement; or
c. the violation or alleged violation of any insurance or securities
laws.
Upon sufficient proof that the claim or demand arose from the
occurrences listed above, Capital Brokerage, Genworth Life & Annuity,
or Genworth Life of New York may request reimbursement for any amount
paid plus any reasonable expenses incurred in investigating, defending
against and/or settling the claim or demand.
5.6 Broker-Dealer shall immediately notify Capital Brokerage, and the
appropriate insurer, either Genworth Life & Annuity or Genworth Life of
New York, in writing of any complaint or grievance relating to the
Policies or the Annuities, including, but not limited to any complaint
or grievance arising out of or based on advertising or sales literature
approved by Genworth Life & Annuity or Genworth Life of New York or the
marketing or sale of the Policies or Annuities.
5.7 Broker-Dealer shall promptly furnish all relative, non-privileged
written materials requested by Capital Brokerage, Genworth Life &
Annuity or Genworth Life of New York in connection with the
investigation of any such complaint and will provide reasonable
cooperation in the investigation. Genworth Life & Annuity, Genworth
Life of New York or Capital Brokerage will notify in a timely manner
the Broker-Dealer of any complaint.
5.8 Broker-Dealer shall immediately notify Capital Brokerage and the
appropriate insurer, either Genworth Life & Annuity or Genworth Life of
New York, in writing of any state, federal, or self regulatory
organization investigation or examination regarding the marketing and
sales practices relating to the Policies or Annuities or any pending or
threatened litigation regarding the marketing and sales practices
relating to the Policies or Annuities.
6. TERMINATION
6.1 This Agreement may be terminated by either Capital Brokerage or
Broker-Dealer at any time, for any reason, upon thirty (30) calendar
days advance written notice delivered to the other party under the
terms of Section 10.10 of this Agreement. Unless terminated as
provided in Section 6.2(a) or (c) below, Capital Brokerage will
continue to provide contract information to the Broker-Dealer and/or
its insurance affiliate on all contracts issued under this agreement
unless a change of dealer has been requested by the owner.
6.2 This Agreement will terminate immediately:
a. If the Broker-Dealer is dissolved, liquidated, or otherwise
ceases business operations;
b. If the Broker-Dealer fails, in Capital Brokerage's sole judgment, to
comply with any of its material obligations under this Agreement;
c. If the Broker-Dealer ceases to be registered under the 1934 Act or a
member in good standing of the NASD; or
d. In the event one party assigns or transfers its rights or
liabilities under this Agreement to any third party without
the prior written consent of the other party.
Page 7 of 13
6.3 The following provisions of the Agreement shall survive termination:
a. Section One - Definitions
b. Section Two - Representations
c. Section Five - Indemnification
d. Section Nine - Recordkeeping
e. Section Ten - Use of Non-Public Information; Confidentiality
7. COMPENSATION
7.1 Unless otherwise expressly agreed to in writing by the parties, no
compensation shall be payable to Broker-Dealer for its services under
this Agreement. All compensation payable with respect to sales of the
Policies and the Annuities by Broker-Dealer shall be paid in accordance
with the terms of the General Agent Agreement in effect between
Genworth Life & Annuity and/or Genworth Life of New York and
Broker-Dealer, or a duly licensed subsidiary or affiliate thereof.
8. ADVERTISEMENTS
8.1 Broker-Dealer shall not use any advertisements or sales literature for
the Policies or the Annuities or any advertisements or sales literature
referencing Genworth Life & Annuity, Genworth Life of New York or
Capital Brokerage without prior written approval of Genworth Life &
Annuity, Genworth Life of New York or Capital Brokerage. This includes
brochures, letters, illustrations, training materials, materials
prepared for oral presentations and all other similar materials.
Broker-Dealer further agrees not to publish or distribute any
advertising materials referencing the name, products, logo, or services
of Genworth Life & Annuity, Genworth Life of New York or Capital
Brokerage, including in any manner which would imply or indicate the
offer and/or sale of a security or interest in a security as defined in
the Securities Act of 1933, as amended, without first obtaining the
prior written approval of Genworth Life & Annuity, Genworth Life of New
York or Capital Brokerage to do so. Broker-Dealer agrees to comply
with any special advertising guidelines published by Genworth Life &
Annuity, Genworth Life of New York or Capital Brokerage from time to
time
9. RECORDKEEPING
9.1 Each party agrees to keep all records required by federal and state
laws, to maintain its books, accounts, and records (collectively, the
"Records") so as to clearly and accurately disclose the precise nature
and details of transactions, and to assist one another in the timely
preparation of records. Broker-Dealer agrees that it will not
reproduce or use or allow the reproduction, distribution or use of the
Records in any manner whatsoever, except: (i) pursuant to the written
policies of Genworth Life & Annuity, Genworth Life of New York or
Capital Brokerage; (ii) with the prior written consent of Genworth Life
& Annuity, Genworth Life of New York or Capital Brokerage; or (iii) as
required by law, rule or regulation.
9.2 Each party grants to the other and/or its representatives the right and
power at reasonable times to inspect, check, make extracts from, and
audit each of its Records as they relate to this Agreement, including,
but not limited to advertisements and sales materials, for the purpose
of verifying adherence to each of the provisions of this Agreement.
Upon termination of this Agreement, all Records remain the property of
Genworth Life & Annuity, Genworth Life of New York or Capital Brokerage
and must be immediately returned to the Genworth Life & Annuity,
Genworth Life of New York or Capital Brokerage, or, with consent,
destroyed.
Page 8 of 13
10. USE OF NON-PUBLIC INFORMATION; CONFIDENTIALITY
10.1. Definitions. When used in this Section 10, the terms listed below
shall have the following special meanings:
A. "CONSUMER" means an individual who seeks to obtain, obtains or has
obtained insurance or other financial product or service from
Capital Brokerage pursuant to this Agreement, which product or
service is intended to be used for personal, family or household
purposes.
B. "CONSUMER INFORMATION" means non-public personally identifiable
financial and health information as those terms are defined by
applicable Laws (i) provided by or on behalf of a Consumer to
Capital Brokerage, including information obtained by you, and
(ii) resulting from Capital Brokerage's transactions or services
related to a transaction with the Consumer. Consumer Information
includes all lists of customers, former customers, applicants and
prospective customers, and any list or grouping of customers
derived from personally identifiable financial or health
information that is not publicly available.
C. "CONFIDENTIAL INFORMATION" means any data or information regarding
market share percentage, production goals, monthly production
targets, top producers, actual product production, broker product
listings, total sales data of the disclosing party, marketing
strategies, strategic plans, financial or operational data,
pricing information, sales estimates, business plans, business
relationships, and internal performance results relating to the
past, present or future business activities of the disclosing
party, its subsidiaries and affiliated companies and the
customers, clients, employees and suppliers of any of the
foregoing.
D. "LAWS" mean all applicable requirements of Consumer privacy laws,
judicial interpretations, rules and regulations, including but
not limited to the Xxxxx-Xxxxx-Xxxxxx Act.
10.2 Confidentiality Obligations. Except as expressly authorized by prior
written consent of the disclosing party, each party shall:
a. use and disclose Consumer Information in accordance with all
applicable Laws and the privacy policies of each party hereto.
b. limit access to any of the disclosing party's Confidential
Information and Consumer Information to its partners, shareholders,
officers, directors, employees, representatives, agents, advisors,
affiliates or representatives of its agents or advisors who have
a need to know in connection with this Agreement. Confidential
Information shall only be used in connection therewith.
c. only use and disclose Consumer Information in order to (i) effect,
administer, enforce or process transactions requested by a
Consumer; (ii) adhere to certain regulatory requirements; (iii)
evaluate each party's performance under the this Agreement; or
(iv) perform services on behalf of the other including, but not
limited to, offering products and/or services to Consumers. Each
party shall use Consumer Information disclosed by the other
solely for the purposes for which it was disclosed and must not
reuse or redisclose information for other purposes, except as
permitted or required by applicable Laws and subject to any
agreements between the parties.
d. prior to disclosing Consumer Information to an Affiliate in order
for the Affiliate to perform services or functions pursuant to this
Agreement, the disclosing party must restrict the Affiliate from
disclosing Consumer Information.
e. prior to disclosing Consumer Information to a third party in order
to perform services or functions under the this Agreement, the
disclosing party must enter into a written
Page 9 of 13
confidentiality agreement requiring the third party it to maintain
the confidentiality of such information in accordance with the
requirements of this Agreement.
f. safeguard all such Confidential Information and Consumer
Information it receives by implementing and maintaining appropriate
administrative, technical and physical safeguards to: (i) ensure
the security and confidentiality of Confidential Information and
Consumer Information; (ii) protect against any anticipated
threats or hazards to the security or integrity of Confidential
Information and Consumer Information, and; (iii) protect against
unauthorized access to or use of Confidential Information and
Consumer Information which could result in substantial harm or
inconvenience to any Consumer.
10.3 Exceptions to Confidentiality.
a. The obligations of confidentiality and restrictions on use set
forth in Section 10.2 shall not apply to any Consumer Information
that:
(1) was already in the possession of the nondisclosing party
prior to receipt thereof, directly or indirectly, from the
disclosing party; or
(2) is required to be disclosed pursuant to applicable Laws,
regulatory requests, legal process, subpoena or court order.
b. The obligations of confidentiality and restrictions on use set
forth in Section 10.2 shall not apply to any Confidential
Information that:
(1) was in the public domain prior to the date of this Agreement
or subsequently came into the public domain through no fault
of the nondisclosing party or violation of this Agreement;
(2) was lawfully received by the nondisclosing party from a third
party free of any obligation of confidence of such third
party;
(3) was already in the possession of the nondisclosing party
prior to receipt thereof, directly or indirectly, from the
disclosing party;
(4) is required to be disclosed pursuant to applicable Laws,
regulatory requests, legal process, subpoena or court order;
or
(5) is subsequently and independently developed by employees,
consultants or agents of the nondisclosing party without
reference to or use of the Confidential Information disclosed
under this Agreement.
10.4 Equitable Relief. Each party agrees that money damages would not
be a sufficient remedy for breach of the confidentiality and other
obligations of this Agreement. Accordingly, in addition to all
other remedies that each party may have, each party shall be
entitled to specific performance and injunctive relief or other
equitable relief as a remedy for any breach of this Agreement
without the requirement of posting a bond or other security.
10.5 Audit. Each party may audit the other party's use and disclosure of
Confidential Information and Consumer Information, as well as it's
safeguards to protect Confidential Information and Consumer
Information, during regular business hours upon forty-eight (48)
hours prior notice.
11. GENERAL PROVISIONS
11. 1 Effective. This Agreement shall be effective upon execution by both
parties and will remain in effect unless terminated as provided in
Section Six.
Page 10 of 13
11.2 Assignment. You may not assign this Agreement or any payment you
become entitled to receive hereunder without the Capital
Brokerage's prior written consent, and any attempt to do so shall
be void. Capital Brokerage reserves the right to assign this
Agreement to any company, person or corporation controlled by or
under common control with Capital Brokerage at any time while this
Agreement is in effect upon notice to the Broker-Dealer.
11.3 Governing Law. This Agreement shall be construed in accordance with
the laws of the Commonwealth of Virginia.
11.4 Severability. If any provision of this Agreement shall be held or
rendered invalid by a court decision, state or federal statute,
administrative rule or otherwise, the remainder of this Agreement
shall not be rendered invalid.
11.5 Complete Agreement. The parties declare that, other than the General
Agent's Agreement between Broker-Dealer (or its affiliated insurance
agency) and Genworth Life & Annuity and/or Genworth Life of New York
(or its affiliated marketing company) there are no oral or other
agreements or understandings between them affecting this Agreement
or relating to the offer or sale of the Policies or the Annuities
and that this constitutes the entire Agreement between the parties.
This Agreement supersedes any Broker-Dealer agreement between the
parties, which was in effect immediately prior to the effective
date of this Agreement. However, this provision does not impair
your right to any compensation payable under such prior agreement.
11.6 Waiver. Forbearance by Capital Brokerage to enforce any of the
terms of this Agreement shall not constitute a waiver of such terms.
11.7 Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
11.8 Independent contractors. Broker-Dealer is an independent
contractor. Nothing contained in this Agreement shall create, or
shall be construed to create, the relationship of employer and
employee between Capital Brokerage and Broker-Dealer or
Broker-Dealer's directors, officers, employees, agents or
Registered Representatives.
11.9 Cooperation. Each party to this Agreement shall cooperate with
the other and with all governmental authorities, including,
without limitation, the SEC, the NASD and any state insurance or
securities regulators, and shall permit such authorities
reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the
transactions contemplated under this Agreement.
11.10 Notices. All notices, requests, demands and other communications
which must be provided under this Agreement shall be in writing
and shall be deemed to have been given on the date of service if
served personally on the party to whom notice is to be given or
on the date of mailing if sent by United States registered or
certified mail, postage prepaid. Notices should be sent to the
parties at the addresses first listed in this Agreement.
[Remainder of Page Intentionally Blank]
Page 11 of 13
12. SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized representatives.
CAPITAL BROKERAGE CORPORATION
--------------------------------------
Name of Broker-Dealer
-------------------------------------- --------------------------------------
(Signature) (Signature)
-------------------------------------- --------------------------------------
(Name) (Name)
-------------------------------------- --------------------------------------
(Title) (Title)
Date: Date:
--------------------------------- ---------------------------------
Tax ID #:
----------------------------
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SCHEDULE A
TO
BROKER-DEALER SALES AGREEMENT
VARIABLE LIFE INSURANCE POLICIES and VARIABLE ANNUITY CONTRACTS: See
Compensation Schedule(s) attached to General Agent or Agency Sales Agreement.
Page 13 of 13
