Exhibit 10.1
BONUS FORFEITURE AGREEMENT
This Bonus Forfeiture Agreement is entered into as of September 25,
2002, among Life Investors Insurance Company of America, Transamerica Life
Insurance Company, (collectively "Aegon"), and Xxxxx/Xxxxxx Consulting, Inc.
("Xxxxx/Xxxxxx").
WHEREAS, Aegon has entered into Administrative Services Agreements,
dated September 26, 2002 with Xxxxx/Xxxxxx (the "Xxxxx/Xxxxxx Administrative
Services Agreement") and Long, Xxxxxx & Associates, LLC ("LMA") (the "LMA
Administrative Services Agreement") (collectively, the "Administrative Services
Agreements") pursuant to which Xxxxx/Xxxxxx and LMA have agreed to provide
certain administrative services with respect to certain life and variable life
policies sold by and through duly licensed and appointed agents employed or
engaged by Xxxxx/Xxxxxx and its affiliates (including LMA which is expected to
be acquired by Xxxxx/Xxxxxx following the execution of this Agreement) with whom
Aegon has entered into Appointment Agreements. (All policies to which such
Administrative Services Agreements apply, including both the policies which are
the subject of the Xxxxx/Xxxxxx Administrative Services Agreement and the
policies which are the subject of the LMA Administrative Services Agreement, are
collectively hereinafter defined as the "Policies"). Persons who own Policies
are referred to hereafter as "Policyowners", and
WHEREAS, the parties to the Administrative Services Agreements intend
such agreements to operate together as an incentive to Xxxxx/Xxxxxx to provide
such a level of service as to limit the number of Policies surrendered or
exchanged, and
WHEREAS, to induce Aegon to enter into the Administrative Services
Agreements and in consideration of Aegon's agreement to pay compensation as
provided in the Administrative Sevices Agreements, Xxxxx/Xxxxxx has agreed to
enter into this Bonus Forfeiture Agreement,
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants set forth below and in the Administrative Services Agreements, the
parties agree as follows:
1.0 SURRENDER AND EXCHANGE.
1.0.1 Xxxxx/Xxxxxx agrees that it will use its best efforts to
maintain the Policies in force.
1.0.2 If a Policy is surrendered or if there is a Section 1035
exchange of any Policy or Policies, Aegon shall withhold from the next scheduled
payment to Xxxxx/Xxxxxx under the Xxxxx/Xxxxxx Administrative Services Agreement
an amount calculated as provided in this section (a "Bonus Forfeiture Amount").
If such Bonus Forfeiture Amount is in excess of the next scheduled payment to
Xxxxx/Xxxxxx under the Xxxxx/Xxxxxx Administrative Services Agreement,
Xxxxx/Xxxxxx will pay to Aegon an amount which, when added to the next scheduled
payment to Xxxxx/Xxxxxx under the Xxxxx/Xxxxxx
Administrative Services Agreement, will equal the Bonus Forfeiture Amount. The
Bonus Forfeiture Amount will be calculated by multiplying the applicable
percentage listed on Schedule A times the pro rata portion of the Net Cumulative
Compensation attributable to the Policy or Policies surrendered or exchanged.
"Net Cumulative Compensation" means all compensation paid by Aegon pursuant to
the Xxxxx/Xxxxxx Administrative Services Agreement since its effective date less
any prior Bonus Forfeiture Amounts. The pro rata portion of Net Cumulative
Compensation is determined by multiplying the Net Cumulative Compensation by a
fraction whose numerator is the cash value of the Policies surrendered or
involved in the Section 1035 exchange and whose denominator is the total cash
value of all Policies (including the Policies surrendered or exchanged), each at
the time of the surrender or exchange. At no time shall the sum of all (i) Bonus
Forfeiture Amounts, (ii) Exchange Amounts referred to in Section 1.0.3 below,
and (iii) Persistency Adjustments referred to in Section 2.0 below exceed the
Net Cumulative Compensation.
1.0.3 If there is a Section 1035 exchange of any Policies or
Policies surrendered and monies forwarded to an insurance carrier not affiliated
with Aegon, in addition to the Bonus Forfeiture Amount pursuant to Section
1.0.2, Xxxxx/Xxxxxx will pay Aegon an additional amount (an "Exchange Amount")
equal to the Bonus Forfeiture Amount.
1.0.4 Neither the Bonus Forfeiture Amount set forth in Section 1.0.2
nor the Exchange Amount set forth in Section 1.0.3 shall apply if the surrender
or exchange results (i) from the failure of the Aegon Affiliate issuing the
exchanged or surrendered Policy to achieve crediting rates within 5% of the
crediting rate determined by reference to the "straw man" portfolio established
for the customer or (ii) as a result of a ratings downgrade of the Policy
issuing Aegon affiliate to "A" (or its equivalent) by at least two of Xxxxx'x
Investors Service, Standard & Poor's and Fitch Ratings.
1.0.5 The Exchange Amount set forth in Section 1.0.3 shall not apply
if (i) Xxxxx/Xxxxxx has used its best efforts to prevent the surrender or
exchange of the Policy or Policies, including, without limitation, making a
written offer to the customer to reduce its compensation to zero with respect to
the Policy or Policies and (ii) Xxxxx/Xxxxxx is not receiving compensation with
respect to the Policies after such exchange from the insurance carrier which
issued the policy or policies exchanged for the Policy or Policies subject to
this Agreement.
2.0 PERSISTENCY ADJUSTMENT.
Xxxxx/Xxxxxx agrees to pay Aegon annually the amount, if any, by which
$2.3 million ($1.15 million if Xxxxx/Xxxxxx does not consummate its purchase of
100% of the membership interests in LMA pursuant to the Membership Interests
Purchase Agreement, dated September 26, 2002) exceeds the product of 10 basis
points (.1%) multiplied by the cash value of the Policies in force at December
31 of each year this Agreement is in force plus the cash value of any Policies
with respect to which a Bonus Forfeiture has been paid during such year.
Payment, if any, shall be due by January 15 of the following year.
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3.0 AEGON AGREEMENTS.
Xxxxx/Xxxxxx and Aegon agree that the Administrative Services
Agreements, the Appointment Agreements and Related Schedules and the Selected
Broker Agreements constitute all of the agreements pursuant to which Aegon is
obligated to compensate Xxxxx/Xxxxxx and its affiliates, including LMA, with
respect to the Policies. Xxxxx/Xxxxxx and Aegon agree that if Aegon elects to
participate in the highest level carrier program offered by Xxxxx/Xxxxxx or its
affiliates, the charge for its participation will not exceed $200,000.
Xxxxx/Xxxxxx and Aegon agree that new Policies will be compensated pursuant to
standard commission arrangements in addition to the payments contemplated by the
Administrative Service Agreements. Xxxxx/Xxxxxx agrees that neither Xxxxx/Xxxxxx
nor any of its affiliates will (i) ask Aegon, or its affiliates, to renegotiate
any compensation agreement between Xxxxx/Xxxxxx and its affiliates, on the one
hand, and Aegon or its affiliates on the other, with respect to compensation to
be paid to Xxxxx/Xxxxxx or its respective affiliates with respect to the
Policies or (ii) request any additional arrangement pursuant to which Aegon or
its affiliates would compensate Xxxxx/Xxxxxx or its affiliates with respect to
the Policies (in each case a "Renegotiation Request"). If Aegon receives a
Renegotiation Request, it will notify Xxxxx/Xxxxxx pursuant to Section 8.0 of
this Agreement, and such notice shall specifically reference this section and
the possibility of a $5 million renegotiation charge if such Renegotiation
Request is not cancelled as provided herein. If the Renegotiation Request is not
cancelled within 30 days after receipt of notice by Xxxxx/Xxxxxx, Aegon may
impose a renegotiation charge of up to $5 million. Aegon will notify
Xxxxx/Xxxxxx pursuant to Section 8.0 of its decision to impose a renegotiation
charge penalty under this Section 3.0 and Xxxxx/Xxxxxx agrees to pay such
renegotiation charge within 15 days of its receipt of such notice.
4.0 INCENTIVE PROGRAMS.
Any program offered by or through Xxxxx/Xxxxxx or its affiliates
incenting the sale of policies of participating insurance carriers will include
Aegon on substantially equivalent economic terms and conditions as the other
insurance carriers. In determining whether Aegon is included in such programs on
the same terms and conditions, Xxxxx/Xxxxxx will use aggregate payments made and
amounts payable under the Administrative Service Agreements to compensate
Xxxxx/Xxxxxx agents and employees to the extent necessary to provide its agents
and employees the same incentive to sell Aegon policies as the policies of other
participating insurance carriers.
5.0 TERM AND TERMINATION.
This Agreement shall become effective as of the date set forth above
and shall automatically expire on the sixth anniversary of the termination of
the last Administrative Services Agreement to expire.
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6.0 ASSIGNMENT.
No assignment by operation of law or otherwise of this Agreement or of
compensation payable hereunder shall be valid unless authorized in writing by
Aegon. Every assignment shall be subject to (a) any indebtedness and obligation
of Xxxxx/Xxxxxx that may be due or become due to Aegon or its affiliates; and
(b) any applicable NASD, SEC, or state insurance or securities regulation
pertaining to such assignments.
7.0 AMENDMENTS.
7.0.1 Writing Required. No waiver or amendment of this Agreement
shall be effective unless it is in writing and signed by a duly authorized
officer of Aegon and Xxxxx/Xxxxxx. The failure of Aegon or Xxxxx/Xxxxxx to
enforce any provisions of this Agreement shall not constitute a waiver of any
such provision or a course of conduct or a waiver in the future of that same
provision.
7.0.2 Past Waiver. No past waiver of a provision of this Agreement
by Aegon or Xxxxx/Xxxxxx shall constitute a course of conduct or a waiver in the
future of that same provision.
8.0 NOTICE.
Any and all notices required to be given under this Agreement or which
either of the parties may desire to give shall be in writing and shall be deemed
to be delivered when sent by certified mail, postage prepaid, return receipt
requested or sent by Federal Express or other recognized overnight courier
service, and addressed as follows:
If to Xxxxx/Xxxxxx:
Xxxxx Xxxxxxx
Xxxxx/Xxxxxx, Inc.
0000 Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
And
Xxxx Xxxxxx
Xxxxx/Xxxxxx, Inc.
000 Xxxxx Xxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxxxxx, XX 00000
If to Aegon:
Transamerica Life Insurance Company
Attn: President, Extraordinary Markets
0000 Xxxxxxxx Xx XX
Xxxxx Xxxxxx, XX 00000-0000
9.0 SEVERABILITY.
Any provision of this Agreement which is prohibited, unenforceable or
not authorized in any jurisdiction shall, as to such jurisdiction, by
ineffective to the extent of such prohibition, unenforceability or,
non-authorization without invalidating the remaining
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provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
10.0 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Iowa, without reference to its conflicts of laws
provisions.
11.0 CONFIDENTIALITY.
Each of the parties agrees that the terms and conditions of this
Agreement are confidential and, unless otherwise required by law, shall not be
disclosed by either party except to such party's officers, employees, directors,
attorneys, accountants, advisors and representatives, without the consent of the
other party.
12.0 HEADINGS.
Section headings in this Agreement are included herein for convenience
of reference only and shall not affect the meaning or interpretation of this
Agreement. References to Schedules, shall, unless otherwise indicated, refer to
Schedules attached to this Agreement, which shall be incorporated in and
constitute a part of this Agreement.
13.0 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
[INTENTIONALLY LEFT BLANK]
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LIFE INVESTORS INSURANCE COMPANY OF AMERICA
By: /s/
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Its: Vice President
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TRANSAMERICA LIFE INSURANCE COMPANY
By: /s/
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Its: Vice President
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XXXXX/XXXXXX CONSULTING, INC.
By: /s/ Xxxxxx X. Xxxx
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Its: Chief Financial Officer
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