Exhibit (c)(v)
SERIES 2002 MP CONTRACT
MANAGING PARTNER AGREEMENT
THIS MANAGING PARTNER AGREEMENT ("Agreement") is made and entered into as of the
date set forth on the signature page for this Agreement by and between GENERAL
AMERICAN LIFE INSURANCE COMPANY, a Missouri insurance company (the "Company"), a
wholly-owned subsidiary of GENAMERICA FINANCIAL CORPORATION, a Missouri
corporation, and the person or entity designated as the Managing Partner on the
signature page for this Agreement (the "Managing Partner").
W I T N E S S E T H:
WHEREAS, the Managing Partner desires to become an independent contractor
of the Company for the sale of certain Products (as hereafter defined); and
WHEREAS, the Company desires to have the Managing Partner become an
independent contractor of the Company for the sale of those certain products,
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual promises contained
herein, and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Appointment. (a) Subject to all the terms and conditions of this
Agreement, the Company hereby appoints the Managing Partner for the purpose of
procuring in person or through agents appointed by it and approved in writing by
the Company, applications for and the sale of all forms of individual life
insurance and other products, including Variable Products (as defined below)
provided the conditions of Section 1(b), below, are satisfied (collectively, the
"Products"), which the Managing Partner is properly licensed to sell, as may
from time to time be set forth in the Schedule of Compensation attached hereto
(the "Schedule of Compensation") and made a part of this Agreement (which
schedule may be from time to time amended, modified and/or replaced in the
Company's sole discretion).
(b) If the Managing Partner desires to procure applications for and
sell any variable life, annuity, endowment or other products underwritten by the
Company now or in the future and such products are deemed "securities" by
relevant authority subject to regulation by the Securities and Exchange
Commission (collectively, "Variable Products"), the Managing Partner, if he or
she is an individual, must either have entered into a valid registered
representative agreement or similar agreement with Walnut Street Securities,
Inc. or its successors ("WSS"), which is then current and in full force and
effect, or have a valid agreement with another broker/dealer with whom the
Company has a written selling agreement that permits the payment of commissions
or other compensation for the sale of Variable Products.
If the Managing Partner is a non-individual entity ("Entity"), including
but not limited to, a corporation, partnership, limited partnership, joint
venture, limited liability
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company or association, the Entity hereby acknowledges that any commissions,
bonuses, fees or other payments otherwise payable to the Managing Partner with
respect to Variable Products as set forth in the Schedule of Compensation
(collectively, the "Variable Commissions") can be paid only to an individual who
meets all of the requirements set forth below (the "Variable Commission
Individual"). The individual whose name is set forth as such on the signature
page (and any other individuals who may in the future desire to receive Variable
Commissions) will be a Variable Commission Individual if he or she meets the
following requirements:
(i) he or she is an individual who is separately contracted
with the Company as an Associate Partner, Advisor or Representative (or
similar designations which may be used by the Company);
(ii) he or she has either entered into a valid registered
representative agreement or similar agreement with WSS, which is then
current and in full force and effect, or has a valid agreement with
another broker/dealer with which the Company has a written selling
agreement that is then current and in full force and effect; and
(iii) he or she has executed this Agreement and agrees that he
or she must be and remain a Variable Commission Individual to be entitled
to receive the applicable Variable Commissions.
(c) The applicable Variable Commissions are payable to the Managing
Partner if he or she is an individual with a valid registered representative or
similar agreement with WSS. If the Managing Partner has a valid agreement with a
broker/dealer other than WSS with whom the Company has a written selling
agreement, then the applicable Variable Commissions are payable solely through
that selling agreement. If the Managing Partner is an Entity, then any Variable
Commissions that would otherwise be payable to the Managing Partner are payable
to the applicable Variable Commission Individual in accordance with the Schedule
of Compensation if that Variable Commission Individual has a valid registered
representative or similar agreement with WSS. If the applicable Variable
Commission Individual has a valid agreement with a broker/dealer other than WSS
with whom the Company has a written selling agreement, then the applicable
Variable Commissions are payable solely through that selling agreement.
(d) No territory is assigned hereunder, and the Company reserves the
right in its sole discretion to authorize or establish any number of agencies or
branches within any territory or jurisdiction.
(e) In the event that the Managing Partner is an Entity, then it
shall designate the principal individual(s) who has(have) authority to bind the
Managing Partner and, if licensed with WSS, the individual listed as the
Compensation Branch Manager (the "Individual Designee(s)"), acceptable to the
Company in its sole discretion. Each Individual Designee shall execute this
Agreement and agree to be bound by all of
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its terms and conditions. Each Individual Designee, by his or her signature
hereto, hereby personally and unconditionally guarantees all obligations of the
Managing Partner under this Agreement, including but not limited to, any and all
obligations for any indebtedness of the Managing Partner to the Company. In the
event of the death or disability of an Individual Designee, or in the event of a
change in control of the Managing Partner, the Managing Partner shall designate
a successor Individual Designee, acceptable to the Company in its sole
discretion, within ten (10) days after the event requiring the need to designate
such a successor. Such successor Individual Designee shall continue to be
subject to the provisions of this Agreement and shall execute such documents as
are deemed necessary by the attorneys for the Company to bind the successor
Individual Designee to the provisions of this Agreement. The name(s) of the
individual(s) designated by the Managing Partner as the Individual Designee(s)
is(are) set forth on the signature page of this Agreement.
2. Relationship of Parties. Nothing contained in this Agreement shall be
construed to create any relationship, partnership, employment or joint venture
between or among the Managing Partner, Variable Commission Individual or
Individual Designee(s) and the Company other than that of independent
contractors. Except as expressly set forth herein, each party shall be solely
responsible for the respective fees, costs and expenses incurred in connection
with the operation of its business and the fulfillment of its obligations
hereunder. Neither the Managing Partner, the Variable Commission Individual nor
the Individual Designee(s) is granted any right or authority to assume or create
any obligation or responsibility, express or implied, on behalf of the Company
or to bind the Company in any manner except as expressly permitted hereunder.
3. Sub-agents. The Managing Partner is hereby authorized to select and
recommend certain individuals and/or Entities as agents (collectively referred
to herein as "Sub-agents" and individually as "Sub-agent") under this Agreement
for appointment by the Company as Associate Partners, Advisors or
Representatives (or similar designations which may be used by the Company). The
Sub-agents of the Managing Partner shall include the Associate Partners,
Advisors and Representatives recommended by the Managing Partner and the
Advisors and Representatives recommended by an Associate Partner which is a
Sub-agent of the Managing Partner, and only individuals and/or Entities so
recommended shall become Sub-agents of the Managing Partner; provided, however,
that no Sub-agent's appointment shall be effective until and unless approved in
writing by the Company in its sole discretion. The Managing Partner shall be
responsible for making a thorough and diligent inquiry and investigation with
respect to such individuals and/or Entities and shall provide the Company, at
the time that the recommendation for appointment of each such individual and/or
Entity is submitted, such certifications regarding character, business
reputation, trustworthiness, qualifications, competence and other information as
the Company may require.
Upon such approval and appointment by the Company, each Sub-agent shall
enter into a written agreement with the Company and the Managing Partner (in
such form as is approved by the Company). Upon the execution of such a written
agreement, a Sub-agent shall be allowed to procure applications for and sell
Products pursuant to the terms
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thereof. The Managing Partner may not terminate a Sub-agent's association with
the Managing Partner or any Affiliate (as defined in Section 22) of the Managing
Partner without prior written notice thereof being duly given as provided in
this Agreement to the Company. Failure to provide such notice shall be deemed a
breach of this Agreement.
4. Supervision of Sub-Agents. The Managing Partner hereby agrees that, in
connection with the procurement of applications for and the sale of Products,
the Managing Partner shall supervise and be responsible for all acts and
failures to act of the Sub-agents, including but not limited to, the collection
and safekeeping of all monies received by the Sub-agents in connection with
applications for policies for the Products, and ensure that the Sub-agents
comply with all the rules and regulations of the Company with respect to
policies related to the Products. In this regard the Managing Partner shall
ensure that each Sub-agent is properly licensed at all relevant times under the
laws and regulations of all jurisdictions where it solicits or procures
applications for policies of the Company.
5. Compensation. The Managing Partner's Compensation (as defined below)
shall be as shown on the Schedule of Compensation attached to this Agreement on
fully paid and issued Products written by the Managing Partner or any of its
Sub-agents and placed with the Company hereunder. As used herein, "Compensation"
shall mean all commissions, bonuses, fees or other payments to be made as set
forth in the Schedule of Compensation, as it may from time to time be amended,
modified and/or replaced in the Company's sole discretion. In addition, Variable
Commissions based on the sales of Variable Products are payable as set forth in
Section 1 of this Agreement and the Schedule of Compensation. The Compensation
or Variable Commissions payable on any Product shall be determined solely in
accordance with the Schedule of Compensation (or the written selling agreement
between the Company and a broker/dealer other than WSS for Variable Commissions
payable to the Managing Partner or Variable Commission Individual who has a
valid agreement with such broker/dealer) in effect at the time the application
for such Product is submitted to the Company. Compensation and Variable
Commissions shown on the Schedule of Compensation are subject to change at any
time without notice, but no change shall affect Compensation or Variable
Commissions on any Product, the application for which is submitted to the
Company prior to the effective date of the change. The Company reserves the
right, in its sole discretion, to change the time or event that signifies a
change in the Compensation or Variable Commissions payable on any Product caused
by a change in the Schedule of Compensation upon the giving of prior notice
thereof to the Managing Partner. The Company's decision on the earning of
Compensation or Variable Commissions is final and binding.
6. Compensation to Sub-agents. Sub-agents shall be compensated for the
sale of Products in accordance with the terms and conditions set forth in their
respective written agreements with the Company and as set forth on the
respective schedules to those agreements as determined by the Managing Partner
and the Company. The Managing Partner hereby acknowledges and agrees that the
Compensation and/or Variable Commissions to be paid to Sub-agents as set forth
above will reduce the
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Compensation and/or Variable Commissions that would otherwise be payable to the
Managing Partner under the Schedule of Compensation.
7. Obligations of Managing Partner. (a) If for any reason the Company
returns all or a portion of a premium paid in respect of a Product, the Managing
Partner shall immediately refund to the Company the amount of Compensation or
Variable Commissions received on such returned premiums.
(b) If a Product issued by the Company is surrendered, the Managing
Partner shall immediately refund to the Company a proportionate part of the
unearned Compensation or Variable Commissions, as applicable, received on the
surrendered Product. The amount to be refunded shall equal the amount of the
Compensation or Variable Commissions, as applicable, paid to the Managing
Partner for the modal period in which the Product was surrendered, multiplied by
a fraction, the numerator of which is the number of complete months remaining in
the modal period and the denominator of which is the total number of complete
months in the modal period.
(c) The Managing Partner may collect only the initial premium on all
applications solicited for the Company. All other premiums shall be paid
directly to the Company. All premium or other payments must be made payable to
the Company and must be in the form of a check, bank draft, money order or other
form acceptable to the Company, in its sole discretion. Premiums or other
payments collected by the Managing Partner shall be delivered to the Company
immediately upon receipt. No funds received for the Company or on the Company's
behalf shall at any time be deposited in any account of the Managing Partner.
(d) The Managing Partner shall not, directly or indirectly, pay or
allow any of its employees, independent contractors, representatives, agents or
Sub-agents to pay, or offer to pay or allow any of its employees, independent
contractors, representatives, agents or Sub-agents to offer to pay, any rebate
of Compensation or Variable Commissions, as applicable, on any Product issued or
proposed to be issued by the Company, nor shall it make any misrepresentation or
incomplete comparisons for the purpose of inducing a policyholder of the Company
or any other company to convert, lapse, forfeit or surrender such policyholder's
insurance therein.
(e) In the event of the impounding or holding in abeyance of
premiums as a result of any court order or rule of any Insurance Department or
other lawful authority, the Compensation or Variable Commissions, as applicable,
otherwise payable to the Managing Partner or Variable Commission Individual, as
applicable, shall remain in abeyance in the same manner and to the same extent
as the premium upon which such Compensation or Variable Commissions, as
applicable, are payable.
(f) The Managing Partner shall not knowingly permit delivery of any
policy of life insurance unless the applicant therefor is in good health and has
performed all acts and completed all documents required by the Company for the
issuance of such insurance and has paid the first premium.
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(g) The Managing Partner shall not accept any premiums, applications
or policies from a Sub-agent or any other person who is not authorized and
properly licensed to sell insurance products in the applicable state, territory
or other jurisdiction in which the sale is made.
(h) The Managing Partner hereby acknowledges and agrees that it is
subject to and shall abide by all the rules, regulations, practices and
procedures from time to time in place, as the same are consistently applied by
the Company.
(i) The Managing Partner will take out and keep renewed any and all
licenses required by statute, rule or regulation of any applicable state,
territory or other jurisdiction needed to procure applications for and sell
Products.
(j) The Managing Partner shall provide continuing and ongoing
services to all of the policyholders to whom it sells Products hereunder and
shall utilize the "advertising or sales promotional material" (as defined in
Section 13) consented to and approved by the Company in soliciting applications
for and sales of Products.
8. Annualized Commissions. (a) Upon the request of the Managing Partner
and approval by the Company, the full first year's commissions for a Product
sold by the Managing Partner will be paid at the time the first premium
installment for the Product is paid to the Company. Entitlement to an annualized
commission payment shall be determined on a case by case basis and shall be
subject to the approval of the Company, in its sole discretion. If annualized
commissions are requested and approved for a particular Product, all commissions
payable for such Product to the Managing Partner and all applicable Sub-agents
shall be annualized. Annualized commissions shall be available only for Products
with a premium payment mode which has been approved by the Company for the
annualized commissions program. If any Product for which an annualized
commission has been paid shall lapse or terminate either before the end of the
first policy year or before the full first year's premium has been paid, any
part of the commission which has been paid on the unpaid and unearned premium
shall be reversed and charged back against the Managing Partner. Any such
chargeback will be treated as an indebtedness of the Managing Partner in the
same manner as any other indebtedness owed by the Managing Partner to the
Company. The Managing Partner hereby agrees that if its commission account is
not sufficient to offset the chargebacks, the Managing Partner (or the
Individual Designee(s), if applicable) will be personally liable for such
chargebacks. The Company reserves the right, in its sole discretion, to
determine which Products will qualify for annualized commissions, and to
terminate the Managing Partner's participation in the annualized commission
program at any time. The payment of annualized commissions as herein provided
shall fully discharge all obligations of the Company to the Managing Partner for
the payment of first year commissions on the Products to which such commissions
apply.
(b) The Company will extend participation in the annualized
commission program, as described in this Section, to those Sub-agents of the
Managing Partner who
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are recommended by the Managing Partner and approved by the Company, in its sole
discretion. Annualized commissions for a Sub-agent shall be paid on a case by
case basis, as requested by the Sub-agent and the Managing Partner, and approved
by the Company, in its sole discretion. The Managing Partner agrees that if
commissions on a Product are annualized for any Sub-agent of the Managing
Partner and if such Product shall lapse or terminate either before the end of
the first policy year or before the full first year's premium has been paid, any
part of the commission which has been paid on the unpaid and unearned premium
shall be reversed and charged back. The chargeback will be made first to the
Sub-agent's commission account and then to the Managing Partner's commission
account in accordance with the Company's standard chargeback procedure, it being
the intention of the parties that the Managing Partner shall be ultimately
responsible for the payment of any chargebacks owed by any of the Managing
Partner's Sub-agents.
9. Indebtedness to Company; Offset. The right of the Managing Partner,
Variable Commission Individual and/or any Sub-agent or other person claiming
through the Managing Partner to receive any of the Compensation or Variable
Commissions provided for in this Agreement shall at all times be subordinate to
the right of the Company and/or its Affiliates to offset and apply such
Compensation or Variable Commissions against or upon any indebtedness of the
Managing Partner, any of its Sub-agents and/or the Variable Commission
Individual, including any liability incurred by the Company and/or its
Affiliates to any persons by reason of the negligence or unauthorized acts
committed by the Managing Partner, any of its Sub-agents and/or the Variable
Commission Individual. The right of offset shall be in addition to and shall not
limit the Company's right to use any other legal or equitable remedy available
to it. The Company will have, and is hereby granted, a first lien on any and all
Compensation, Variable Commissions and claims payable hereunder as security for
the payment of any and all indebtedness and/or claims of the Managing Partner,
any of its Sub-agents and/or the Variable Commission Individual. Any debit
balance on the Managing Partner's commission statement resulting from any
charges or chargebacks of advances on Compensation or Variable Commissions as
well as chargebacks of indebtedness of the Variable Commission Individual and/or
any of the Sub-agents, shall be considered personal indebtedness of the Managing
Partner (or Individual Designee(s), if applicable) and shall be fully
recoverable by the Company. In the event of any termination of this Agreement,
any indebtedness of the Managing Partner, its Sub-agents and/or the Variable
Commission Individual to the Company and/or any Affiliate of the Company shall
thereby become immediately due and payable. It is the intention of the parties
that the Managing Partner shall be ultimately responsible for any indebtedness
of the Managing Partner, any of its Sub-agents and/or the Variable Commission
Individual.
10. Indemnification. The Managing Partner shall indemnify and hold the
Company, its present and former officers, directors, employees, representatives
and agents harmless from and against all liabilities, claims, causes of action,
losses, damages, costs or expenses (including attorneys' fees and costs) arising
from any negligence, misrepresentation, misconduct, breach of this Agreement,
improper or unlawful termination of a Sub-agent by the Managing Partner, errors
or omissions or other
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wrongful action of the Managing Partner, its Affiliates, employees, independent
contractors, representatives, agents or Sub-agents, including the failure to
comply with any applicable laws, rules or regulations.
11. Errors and Omissions. The Managing Partner shall maintain errors and
omissions liability insurance coverage and a bond of indemnity in such amount
and on such terms as the Company may from time to time determine and shall
provide evidence of such coverage when requested by the Company.
12. Books and Records. The Managing Partner shall keep full, true and
accurate records of all business transacted by the Managing Partner under this
Agreement. The Company may, during regular business hours, enter the Managing
Partner's business premises and examine any of these records pertaining to the
Company's business which are reasonably necessary to show compliance with this
Agreement or meet regulatory requirements. All records, books and papers
supplied by the Company shall be and remain the property of the Company and
shall be delivered to the Company upon demand.
13. Advertising Materials. The Managing Partner shall not place into use
or distribute to its Sub-agents or any other person or Entity any advertising or
sales promotional material describing or related to the Products without the
prior written consent of the Company. As used herein, "advertising or sales
promotional material" includes, but is not limited to, any printed or published
material, audiovisual materials, billboards, descriptive literature, brochures,
leaflets, booklets, seminar material, computer print-outs or computer generated
documents, illustrations or form letters.
14. Authorization. By executing this Agreement, the Managing Partner and
Individual Designee(s), if applicable, certify that all covenants,
representations and warranties are accurate, true and complete. The Managing
Partner acknowledges that the Company may wish to investigate its background and
qualifications and, accordingly, hereby authorizes, to the fullest extent
permitted by law, the Company to communicate with individuals and organizations,
including but not limited to former employees, business and personal references,
government agencies and credit/inspection bureaus to verify its history and
credentials and to obtain other data that may help to analyze its
qualifications. The Managing Partner hereby releases the Company, and its
officers, directors, agents, attorneys, and employees from all liability, causes
of action, claims or demands, which may result from this authorization to
investigate its background and qualifications.
15. Termination. This Agreement may be terminated at any time, with or
without cause, by either party giving the other party written notice thereof.
16. Obligations on Termination. Upon the termination of this Agreement for
any reason, the Managing Partner shall cooperate with the Company to settle all
outstanding accounts, immediately pay in cash any and all existing indebtedness
owed to the Company and immediately deliver to the Company any and all
previously furnished
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materials, supplies, advertising and other printed matter that mentions the
Company by name, rate books, and all other supplies connected with the Company's
business. Any obligation under this Agreement to pay Compensation or Variable
Commissions after the termination of this Agreement may be, at the Company's
option, discharged by the Company by payment of the commuted value of such
future Compensation or Variable Commissions. Such commuted value shall be
equivalent to the present value of such Compensation or Variable Commissions at
the time of payment, calculated by the Company on the basis of reasonable
premium payments, mortality, lapse and interest rates, as determined by the
Company in it sole discretion.
17. Securities. Any Product issued by the Company that is deemed a
security subject to regulation by the Securities and Exchange Commission may not
be sold jointly with any individual, agency or firm unless such individual,
agency or firm either is registered with the National Association of Securities
Dealers or is an associated person of an individual or Entity so registered and
holds a valid registered representative agreement with WSS or another
broker/dealer with whom the Company has a written selling agreement. Any joint
Products must be specified as such at the time the application is delivered to
the Company.
18. Modification of Contracts; Compliance with Law. The Managing Partner
shall have no power with respect to any contract or agreement to which the
Company is a party, to make, alter or discharge such contract or agreement, or
to waive any forfeiture or the performance of any of the terms or conditions of
such contract or agreement. The Managing Partner shall comply with all laws and
regulations from time to time in effect relating to the business of insurance.
19. Privacy. (a) The Managing Partner shall treat all nonpublic personal
information received by it from the Company or from individuals who are
applicants for, owners of or eligible for benefits from Products ("Customer
Information") as confidential information in accordance with applicable laws,
including but not limited to federal and state consumer privacy laws and
regulations designed to ensure the confidentiality, security and integrity of
such information. Customer Information may include, but is not limited to, the
name, address, telephone number, e-mail address, social security number and
policy or contract numbers of a consumer or customer, as well as financial and
health information related to the consumer or customer. Customer Information
also includes any customer list or similar compilation derived from Customer
Information. The Managing Partner shall use Customer Information only in
connection with the solicitation of applications for Products or the provision
of services with respect to Products offered by the Company, or as otherwise
permitted by applicable laws. The Managing Partner shall not have the right to
use or disclose Customer Information except as necessary to process transactions
requested by the consumer or customer; at the direction of the Company; or to
the extent permitted by applicable laws and regulations. The Managing Partner
shall take such steps as are necessary to ensure the security and integrity of
Customer Information in its possession.
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(b) To the extent that the Managing Partner receives, creates, has
access to or uses protected health information regarding individuals who are
applicants for, owners of or eligible for benefits under certain health
insurance Products and optional riders offered by or through the Company,
MetLife or any of their respective Affiliates (collectively, "PHI" as hereafter
more specifically defined), in accordance with the requirements of the federal
Health Insurance Portability and Accountability Act of 1996 and related
regulations ("HIPAA"), as may be amended from time to time, the Managing Partner
agrees:
(i) Not to use or disclose PHI except (A) to perform
functions, activities or services for, or on behalf of, the Company as specified
in this Agreement and consistent with applicable laws, or (B) to the extent that
such use or disclosure is required by law. Any such use or disclosure shall be
limited to that required to perform such services or to that required by
relevant law.
(ii) To use appropriate safeguards to prevent use or
disclosure of PHI other than as permitted by this Agreement.
(iii) To promptly report to the Company any use or disclosure
of PHI not permitted by this Agreement of which it becomes aware and to mitigate
any harmful effect of any use or disclosure that is made by it in violation of
the requirements of this Agreement.
(iv) To ensure that any third party with whom the Managing
Partner contracts or who is hired by the Managing Partner and who may, under
that arrangement, receive or have access to PHI agrees to the same restrictions
and conditions that apply to the Managing Partner with respect to PHI under this
Agreement.
(v) Within 15 days of the Company's request, to provide the
Company with any PHI or information relating to PHI as deemed necessary by the
Company to provide individuals with access to, amendment of and an accounting of
disclosures of their PHI.
(vi) To make its records relating to its use or disclosure of
PHI available to the Secretary of the United States Department of Health and
Human Services at his/her request to determine the Company's compliance with
HIPAA.
(vii) Upon termination of this Agreement, and in accordance
with the Company's wishes, either to return or to destroy all PHI it maintains
in any form, and retain no copies. If the Company agrees that such return or
destruction is not feasible, the Managing Partner shall extend the protections
set forth in this Section to the PHI beyond the termination of this Agreement,
in which case any further use or disclosure of the PHI will be solely for the
purposes that make return or destruction infeasible. Destruction without
retention of copies is deemed "infeasible" if prohibited by the terms of this
Agreement or by applicable law or regulation, including record retention
requirements of various state insurance laws.
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For these purposes, PHI means individually identifiable information that is
transmitted or maintained in any medium and relates to the past, present or
future physical or mental health or condition of an individual; the provision of
health care to an individual; or future payment for the provision of health care
to the individual. PHI includes demographic information about individuals,
including names; addresses; dates directly related to an individual, including
but not limited to birth date; telephone numbers; fax numbers; E-mail addresses;
Social Security numbers; policy numbers; medical record numbers; account
numbers; and any other unique identifying number, characteristic or code. PHI
includes, but is not limited to, information provided by an individual on an
application for a MetLife long term care insurance policy or other health care
plan; information related to the declination or issuance of, or claim under, a
MetLife long term care insurance policy; or information derived therefrom.
The Managing Partner's breach of any of these provisions shall constitute a
material breach of this Agreement and provide grounds for immediate termination
of this Agreement by the Company, notwithstanding any other provisions of this
Agreement. The provisions in this Section 19 will survive the termination of
this Agreement.
20. Minimum Production Standards. The Managing Partner hereby acknowledges
and agrees that the Company, in its sole discretion, may from time to time
establish minimum production requirements for the sale of Products that the
Managing Partner must meet during stated time periods in order to maintain its
ability to sell Products under the terms of this Agreement.
21. Payment of Compensation and Variable Commissions. The parties hereto
acknowledge and agree that in the event that the Company determines, in its
discretion, that the Managing Partner is in material violation of any of the
provisions of this Agreement, or if the Company receives an order, decree or
other notice from any court, Department of Insurance or other lawful authority
that Compensation or Variable Commissions are not to be paid or should not be
paid to the Managing Partner or Variable Commission Individual, as applicable,
for any reason whatsoever, or if the Company, in its discretion, determines that
there is a material issue regarding the appropriateness of paying Compensation
or Variable Commissions to the Managing Partner or Variable Commission
Individual, as applicable, from the sale of Products, then the Company shall
have the right to hold in abeyance any applicable Compensation or Variable
Commissions until such time as a final determination has been made, to the
Company's reasonable satisfaction, as to the status and appropriateness of
paying such Compensation or Variable Commissions.
22. Miscellaneous.
(a) Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, successors and permitted
assigns. The Managing Partner may not assign its rights or delegate its duties
under this Agreement
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either in whole or in part without the prior written consent of the Company. Any
attempted assignment or delegation without such consent will be void.
(b) Equitable Remedies. The Company will have the right to enforce
this Agreement and any of its provisions by injunction, specific performance or
other equitable relief without prejudice to any other rights and remedies that
it may have for a breach of this Agreement.
(c) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Missouri excluding that
body of law pertaining to conflict of laws.
(d) Notices. Any notice or consent required by this Agreement shall
be in writing and either (i) personally delivered, (ii) mailed by certified or
registered mail, postage-prepaid, return receipt requested, or (iii) sent by
telefacsimile transmission and followed by delivery via U.S. mail, to such party
at the address and facsimile number specified on the signature page or to such
other address and/or facsimile number as such party may designate by notice
given in accordance herewith. Such notices or consents shall be deemed duly
given upon the earlier of (i) actual receipt and written acknowledgement thereof
by the receiving party, (ii) deposit in the United States mail as hereinbefore
set forth, or (iii) electronic confirmation of transmission by telefacsimile.
(e) Complete Understanding; Modification; Binding Effect. This
Agreement, together with any exhibits and schedules hereto, constitutes the
complete and exclusive understanding and agreement of the parties and supersedes
all prior understandings and agreements, whether written or oral, with respect
to the subject matter hereof. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by
the parties hereto. This Agreement is binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
(f) Jurisdiction and Venue. Any suit or legal proceeding with
respect to the Agreement shall be brought in the Circuit Courts of St. Louis
City or County, Missouri or the United States District Court for the Eastern
District of Missouri.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument. A signature
transmitted by telefacsimile or similar equipment shall be deemed an original
signature.
(h) Severability. In the event any provision of this Agreement shall
be found invalid, void and/or unenforceable, for any reason, neither this
Agreement generally nor the remainder of this Agreement shall thereby be
rendered invalid, void and/or unenforceable, but instead each such provision,
and (if necessary) other provisions hereof, shall be reformed by a court of
competent jurisdiction so as to effect, insofar as is practicable, the intention
of the parties as set forth in this Agreement; provided, however,
12
that if such court is unable or unwilling to effect such reformation, the
remainder of this Agreement shall be construed and given effect as if such
invalid, void and/or unenforceable provisions had not been a part hereof.
(i) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver of consent shall be deemed to be or shall constitute
a waiver of consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(j) Headings. The description headings used in this Agreement are
inserted for convenience of reference only and do not and shall not be deemed to
modify the construction of any of the provisions of this Agreement.
(k) Gender and Number. Unless the context otherwise requires, any
pronouns whenever used herein shall include the corresponding masculine,
feminine or neuter pronouns and the plural shall include the singular and vice
versa.
(l) Arbitration. Except with respect to any actions seeking
injunctive relief or a restraining order, all disputes arising out of or
resulting from this Agreement shall be finally determined by binding arbitration
in St. Louis, Missouri, in accordance with the commercial rules of arbitration
of the American Arbitration Association. The arbitration shall be carried out by
one or more arbitrators in accordance with said rules. Any award shall be
enforceable in any court of competent jurisdiction in the same manner as
judgments. This agreement to arbitrate shall survive any termination of this
Agreement.
(m) Affiliates; Control. As used in this Agreement, "Affiliates" of
an Entity means any person or Entity which directly or indirectly through one or
more intermediaries Controls, is Controlled by, or is under common Control with
the specified Entity. "Control" means the ownership of a majority of the equity
or the ability to appoint or elect a majority of the board of directors or
similar governing body (by reason of equity ownership, contract or otherwise) of
an Entity.
[The remainder of this page is left intentionally blank.]
13
The undersigned hereby acknowledges and agrees that by its signature below it is
acknowledging that it has reviewed and has had the opportunity to consult with
counsel and is agreeing to be bound by and be subject to all the terms and
conditions of the Agreement designated as the Series 2002 MP Contract, as of
this ----- day of ---------------, 20--. Please complete each line in the
applicable section below in the capacity indicated.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
COMPANY: MANAGING PARTNER:
GENERAL AMERICAN LIFE INSURANCE COMPANY [ ]
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
Address: Address:
000 Xxxxxx Xxxxxx
------------------------------------
Xx. Xxxxx, Xxxxxxxx 00000
------------------------------------
Facsimile #: (314) Facsimile #:
------------------ ------------------------
General American
Code #:
----------------------------
Social Security #
Or Taxpayer ID #:
-------------------
(as applicable)
THE FOLLOWING APPLIES ONLY TO MANAGING PARTNERS THAT ARE NOT INDIVIDUALS.
MANAGING PARTNERS WHO ARE INDIVIDUALS SHOULD DISREGARD.
A. The Managing Partner hereby designates the person whose name appears on the
signature page hereto as the Variable Commission Individual (as defined in
Section 1(b) of the Agreement).
The Variable Commission Individual by his or her signature hereto hereby agrees
that he or she must be and remain a Variable Commission Individual (as defined
in Section 1(b) of the Agreement) to be entitled to receive Variable Commissions
hereunder and further acknowledges and agrees that the Company has a right of
offset against the Variable Commissions otherwise due to him or her in
accordance with the terms of Section 9 of the Agreement.
B. The Managing Partner hereby designates the person(s) whose name(s) appear on
the signature page hereto as its Individual Designee(s) (as defined in Section
1(e) of the Agreement).
14
Each Individual Designee by his or her signature hereto, hereby agrees to be
bound by all the provisions of this Agreement and hereby personally,
unconditionally, absolutely and irrevocably guarantees all obligations of the
Managing Partner under this Agreement, including but not limited to, any and all
obligations for any indebtedness of the Managing Partner to the Company. This is
a guaranty of payment and performance and not of collection. The liability of
each Individual Designee hereunder shall be direct and immediate and not
conditional or contingent upon the pursuit of remedies against any other
Individual Designee, person or Entity. Each Individual Designee acknowledges and
agrees that as a condition to the Company entering into this Agreement, it has
required such Individual Designee to guarantee to the Company payment and
performance of all obligations of the Managing Partner under the Agreement. Each
Individual Designee further acknowledges and agrees that the Managing Partner's
entering into this Agreement is of substantial benefit to such Individual
Designee. Each Individual Designee hereby waives demand, presentment for payment
and notice of nonpayment of any of the Managing Partner's obligations under the
Agreement.
VARIABLE COMMISSION INDIVIDUAL: INDIVIDUAL DESIGNEE(S):
------------------------------------- ------------------------------------
Name: Name:
-------------------------------- -------------------------------
Address: Address:
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
Facsimile #: Facsimile #:
------------------------- ------------------------
------------------------------------
Name:
-------------------------------
Address:
------------------------------------
------------------------------------
Facsimile #:
------------------------
15
ASSOCIATE PARTNER AGREEMENT
THIS ASSOCIATE PARTNER AGREEMENT ("Agreement") is made and entered into as
of the date set forth on the signature page for this Agreement by and between
GENERAL AMERICAN LIFE INSURANCE COMPANY, a Missouri insurance company (the
"Company"), a wholly-owned subsidiary of GENAMERICA FINANCIAL CORPORATION, a
Missouri corporation, and the person or entity designated as the Associate
Partner on the signature page for this Agreement (the "Associate Partner").
W I T N E S S E T H:
WHEREAS, the Company and the person or entity designated on the signature
page for this Agreement as the Managing Partner (the "Managing Partner") have
entered into a Managing Partner Agreement pursuant to which the Managing Partner
has the right to select and recommend one or more Associate Partners for
appointment by the Company in such capacity; and
WHEREAS, the Company and the Managing Partner desire to have the Associate
Partner be appointed as an Associate Partner and the Associate Partner desires
to be appointed by the Company to be an Associate Partner and to become an
independent contractor of the Company for the sale of certain Products (as
hereafter defined), subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual promises contained
herein, and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Appointment. (a) Subject to all the terms and conditions of this
Agreement, the Company hereby appoints the Associate Partner for the purpose of
procuring in person or through agents appointed by it and approved in writing by
the Company, applications for and the sale of all forms of individual life
insurance and other products, including Variable Products (as defined below)
provided the conditions of Section 1(b), below, are satisfied (collectively, the
"Products"), which the Associate Partner is properly licensed to sell, as may
from time to time be set forth in the Schedule of Compensation attached hereto
(the "Schedule of Compensation") and made a part of this Agreement (which
schedule may be from time to time amended, modified and/or replaced in the
Company's sole discretion).
(b) If the Associate Partner desires to procure applications for and
sell any variable life, annuity, endowment or other products underwritten by the
Company now or in the future and such products are deemed "securities" by
relevant authority subject to regulation by the Securities and Exchange
Commission (collectively, "Variable Products"), the Associate Partner, if he or
she is an individual, must either have entered into a valid registered
representative agreement or similar agreement with Walnut Street Securities,
Inc. or its successors ("WSS"), which is then current and in full force and
1
effect, or have a valid agreement with another broker/dealer with whom the
Company has a written selling agreement that permits the payment of commissions
or other compensation for the sale of Variable Products.
If the Associate Partner is a non-individual entity ("Entity"), including
but not limited to, a corporation, partnership, limited partnership, joint
venture, limited liability company or association, the Entity hereby
acknowledges that any commissions, bonuses, fees or other payments otherwise
payable to the Associate Partner with respect to Variable Products as set forth
in the Schedule of Compensation (collectively, the "Variable Commissions") can
be paid only to an individual who meets all of the requirements set forth below
(the "Variable Commission Individual"). The individual whose name is set forth
as such on the signature page (and any other individuals who may in the future
desire to receive Variable Commissions) will be a Variable Commission Individual
if he or she meets the following requirements:
(i) he or she is an individual who is separately contracted
with the Company as a Managing Partner, Advisor or Representative (or
similar designations which may be used by the Company);
(ii) he or she has either entered into a valid registered
representative agreement or similar agreement with WSS, which is then
current and in full force and effect, or has a valid agreement with
another broker/dealer with which the Company has a written selling
agreement that is then current and in full force and effect; and
(iii) he or she has executed this Agreement and agrees that he
or she must be and remain a Variable Commission Individual to be entitled
to receive the applicable Variable Commissions.
(c) The applicable Variable Commissions are payable to the Associate
Partner if he or she is an individual with a valid registered representative or
similar agreement with WSS. If the Associate Partner has a valid agreement with
a broker/dealer other than WSS with whom the Company has a written selling
agreement, then the applicable Variable Commissions are payable solely through
that selling agreement. If the Associate Partner is an Entity, then any Variable
Commissions that would otherwise be payable to the Associate Partner are payable
to the applicable Variable Commission Individual in accordance with the Schedule
of Compensation if that Variable Commission Individual has a valid registered
representative or similar agreement with WSS. If the applicable Variable
Commission Individual has a valid agreement with a broker/dealer other than WSS
with whom the Company has a written selling agreement, then the applicable
Variable Commissions are payable solely through that selling agreement.
2
(d) No territory is assigned hereunder, and the Company reserves the
right in its sole discretion to authorize or establish any number of agencies or
branches within any territory or jurisdiction.
(e) In the event that the Associate Partner is an Entity, then it
shall designate the principal individual(s) who has(have) authority to bind the
Associate Partner (the "Individual Designee(s)"), acceptable to the Company in
its sole discretion. Any Individual Designee licensed with WSS shall be a
registered representative (or similar designation) with WSS. Each Individual
Designee shall execute this Agreement and agree to be bound by all of its terms
and conditions. Each Individual Designee, by his or her signature hereto, hereby
personally and unconditionally guarantees all obligations of the Associate
Partner under this Agreement, including but not limited to, any and all
obligations for any indebtedness of the Associate Partner to the Company. In the
event of the death or disability of an Individual Designee, or in the event of a
change in control of the Associate Partner, the Associate Partner shall
designate a successor Individual Designee, acceptable to the Company in its sole
discretion, within ten (10) days after the event requiring the need to designate
such a successor. Such successor Individual Designee shall continue to be
subject to the provisions of this Agreement and shall execute such documents as
are deemed necessary by the attorneys for the Company to bind the successor
Individual Designee to the provisions of this Agreement. The name(s) of the
individual(s) designated by the Associate Partner as the Individual Designee(s)
is(are) set forth on the signature page of this Agreement.
2. Relationship of Parties. Nothing contained in this Agreement shall be
construed to create any relationship, partnership, employment or joint venture
between or among the Associate Partner, Variable Commission Individual or
Individual Designee(s) and the Company other than that of independent
contractors. Except as expressly set forth herein, each party shall be solely
responsible for the respective fees, costs and expenses incurred in connection
with the operation of its business and the fulfillment of its obligations
hereunder. Neither the Associate Partner, the Variable Commission Individual nor
the Individual Designee(s) is granted any right or authority to assume or create
any obligation or responsibility, express or implied, on behalf of the Company
or to bind the Company in any manner except as expressly permitted hereunder.
3. Sub-agents. The Associate Partner is hereby authorized to select and
recommend certain individuals and/or Entities as agents (collectively referred
to herein as "Sub-agents" and individually as "Sub-agent") under this Agreement
for appointment by the Company as Advisors or Representatives (or similar
designations which may be used by the Company), and only individuals and/or
entities so recommended by the Associate Partner shall become Sub-agents of the
Associate Partner; provided, however, that no Sub-agent's appointment shall be
effective until and unless approved in writing by the Company in its sole
discretion. The Associate Partner shall be responsible for making a thorough and
diligent inquiry and investigation with respect to such individuals and/or
entities and shall provide the Company, at the time that the recommendation for
appointment of each such individual and/or Entity is submitted, such
certifications
3
regarding character, business reputation, trustworthiness, qualifications,
competence and other information as the Company may require.
Upon such approval and appointment by the Associate Partner and the
Company, each Sub-agent shall enter into a written agreement with the Company,
the Managing Partner and/or the Associate Partner (in such form as is approved
by the Company). Upon the execution of such a written agreement a Sub-agent
shall be allowed to procure applications for and sell Products pursuant to the
terms thereof. The Associate Partner may not terminate a Sub-agent's association
with the Associate Partner or any Affiliate (as defined in Section 22) of the
Associate Partner without prior written notice thereof being duly given as
provided in this Agreement to the Company. Failure to provide such notice shall
be deemed a breach of this Agreement.
4. Supervision of Sub-Agents. The Associate Partner hereby agrees that, in
connection with the procurement of applications for and the sale of Products,
the Associate Partner shall supervise and be responsible for all acts and
failures to act of the Sub-agents, including but not limited to, the collection
and safekeeping of all monies received by the Sub-agents in connection with
applications for policies for the Products, and ensure that the Sub-agents
comply with all the rules and regulations of the Company with respect to
policies related to the Products. In this regard the Associate Partner shall
ensure that each Sub-agent is properly licensed at all relevant times under the
laws and regulations of all jurisdictions where it solicits or procures
applications for policies of the Company.
5. Compensation. The Associate Partner's Compensation (as defined below)
shall be as shown on the Schedule of Compensation attached to this Agreement on
fully paid and issued Products written by the Associate Partner or any of its
Sub-agents and placed with the Company hereunder. As used herein, "Compensation"
shall mean all commissions, bonuses, fees or other payments to be made as set
forth in the Schedule of Compensation, as it may from time to time be amended,
modified and/or replaced in the Company's sole discretion. In addition, Variable
Commissions based on the sales of Variable Products are payable as set forth in
Section 1 of this Agreement and the Schedule of Compensation. The Compensation
or Variable Commissions payable on any Product shall be determined solely in
accordance with the Schedule of Compensation (or the written selling agreement
between the Company and a broker/dealer other than WSS for Variable Commissions
payable to the Associate Partner or Variable Commission Individual who has a
valid agreement with such broker/dealer) in effect at the time the application
for such Product is submitted to the Company. Compensation and Variable
Commissions shown on the Schedule of Compensation are subject to change at any
time without notice, but no change shall affect Compensation or Variable
Commissions on any Product, the application for which is submitted to the
Company prior to the effective date of the change. The Company reserves the
right, in its sole discretion, to change the time or event that signifies a
change in the Compensation or Variable Commissions payable on any Product caused
by a change in the Schedule of Compensation upon the giving of prior notice
thereof to the Associate Partner. The Company's decision on the earning of
Compensation or Variable Commissions is final and binding.
4
6. Compensation to Sub-agents. Sub-agents shall be compensated for the
sale of Products in accordance with the terms and conditions set forth in their
respective written agreements with the Company and as set forth on the
respective schedules to those agreements as determined by the Managing Partner,
Associate Partner and the Company. The Associate Partner hereby acknowledges
that the Compensation and/or Variable Commissions to be paid to Sub-agents as
set forth above will reduce the Compensation and/or Variable Commissions that
would otherwise be payable to the Associate Partner under the Schedule of
Compensation.
7. Obligations of Associate Partner. (a) If for any reason the Company
returns all or a portion of a premium paid in respect of a Product, the
Associate Partner shall immediately refund to the Company the amount of
Compensation or Variable Commissions received on such returned premiums.
(b) If a Product issued by the Company is surrendered, the Associate
Partner shall immediately refund to the Company a proportionate part of the
unearned Compensation or Variable Commissions, as applicable, received on the
surrendered Product. The amount to be refunded shall equal the amount of the
Compensation or Variable Commissions, as applicable, paid to the Associate
Partner for the modal period in which the Product was surrendered, multiplied by
a fraction, the numerator of which is the number of complete months remaining in
the modal period and the denominator of which is the total number of complete
months in the modal period.
(c) The Associate Partner may collect only the initial premium on
all applications solicited for the Company. All other premiums shall be paid
directly to the Company. All premium or other payments must be made payable to
the Company and must be in the form of a check, bank draft, money order or other
form acceptable to the Company, in its sole discretion. Premiums or other
payments collected by the Associate Partner shall be delivered to the Company
immediately upon receipt. No funds received for the Company or on the Company's
behalf shall at any time be deposited in any account of the Associate Partner.
(d) The Associate Partner shall not, directly or indirectly, pay or
allow any of its employees, independent contractors, representatives, agents or
Sub-agents to pay, or offer to pay or allow any of its employees, independent
contractors, representatives, agents or Sub-agents to offer to pay, any rebate
of Compensation or Variable Commissions, as applicable, on any Product issued or
proposed to be issued by the Company, nor shall it make any misrepresentation or
incomplete comparisons for the purpose of inducing a policyholder of the Company
or any other company to convert, lapse, forfeit or surrender such policyholder's
insurance therein.
(e) In the event of the impounding or holding in abeyance of
premiums as a result of any court order or rule of any Insurance Department or
other lawful authority, the Compensation or Variable Commissions, as applicable,
otherwise payable to the
5
Associate Partner or Variable Commission Individual, as applicable, shall remain
in abeyance in the same manner and to the same extent as the premium upon which
such Compensation or Variable Commissions, as applicable, are payable.
(f) The Associate Partner shall not knowingly permit delivery of any
policy of life insurance unless the applicant therefor is in good health and has
performed all acts and completed all documents required by the Company for the
issuance of such insurance and has paid the first premium.
(g) The Associate Partner shall not accept any premiums,
applications or policies from a Sub-agent or any other person who is not
authorized and properly licensed to sell insurance products in the applicable
state, territory or other jurisdiction in which the sale is made.
(h) The Associate Partner hereby acknowledges and agrees that it is
subject to and shall abide by all the rules, regulations, practices and
procedures from time to time in place, as the same are consistently applied by
the Company.
(i) The Associate Partner will take out and keep renewed any and all
licenses required by statute, rule or regulation of any applicable state,
territory or other jurisdiction needed to procure applications for and sell
Products.
(j) The Associate Partner shall provide continuing and ongoing
services to all of the policyholders to whom it sells Products hereunder and
shall utilize the "advertising or sales promotional material" (as defined in
Section 13) consented to and approved by the Company in soliciting applications
for and sales of Products.
8. Annualized Commissions. (a) Upon the request of the Associate Partner
and approval by the Managing Partner and the Company, the full first year's
commissions for a Product sold by the Associate Partner will be paid at the time
the first premium installment for the Product is paid to the Company.
Entitlement to an annualized commission payment shall be determined on a case by
case basis and shall be subject to the approval of the Company, in its sole
discretion. If annualized commissions are requested and approved for a
particular Product, all commissions payable for such Product to the Associate
Partner and all applicable Sub-agents shall be annualized. Annualized
commissions shall be available only for Products with a premium payment mode
which has been approved by the Company for the annualized commissions program.
If any Product for which an annualized commission has been paid shall lapse or
terminate either before the end of the first policy year or before the full
first year's premium has been paid, any part of the commission which has been
paid on the unpaid and unearned premium shall be reversed and charged back
against the Associate Partner. Any such chargeback will be treated as an
indebtedness of the Associate Partner in the same manner as any other
indebtedness owed by the Associate Partner to the Company. The Associate Partner
hereby agrees that if its commission account is not sufficient to offset the
chargebacks, the Associate Partner (or the Individual Designee(s), if
applicable) will be personally liable for such chargebacks. The Company reserves
the
6
right, in its sole discretion, to determine which Products will qualify for
annualized commissions, and to terminate the Associate Partner's participation
in the annualized commission program at any time. The payment of annualized
commissions as herein provided shall fully discharge all obligations of the
Company to the Associate Partner for the payment of first year commissions on
the Products to which such commissions apply.
(b) The Company will extend participation in the annualized
commission program, as described in this Section, to those Sub-agents of the
Associate Partner who are recommended by the Associate Partner and approved by
the Company, in its sole discretion. Annualized commissions for a Sub-agent
shall be paid on a case by case basis, as requested by the Sub-agent and the
Associate Partner, and approved by the Company, in its sole discretion. The
Associate Partner agrees that if commissions on a Product are annualized for a
Sub-agent and if such Product shall lapse or terminate either before the end of
the first policy year or before the full first year's premium has been paid, any
part of the commission which has been paid on the unpaid and unearned premium
shall be reversed and charged back. The chargeback will be made first to the
Sub-agent's commission account and then to the Associate Partner's commission
account in accordance with the Company's standard chargeback procedure, it being
the intention of the parties that the Associate Partner shall be ultimately
responsible for the payment of any chargebacks owed by any of the Associate
Partner's Sub-agents.
9. Indebtedness to Company; Offset. The right of the Associate Partner,
Variable Commission Individual and/or any Sub-agent or other person claiming
through the Associate Partner to receive any of the Compensation or Variable
Commissions provided for in this Agreement shall at all times be subordinate to
the right of the Company and/or its Affiliates to offset and apply such
Compensation or Variable Commissions against or upon any indebtedness of the
Associate Partner, any of its Sub-agents and/or the Variable Commission
Individual, including any liability incurred by the Company and/or its
Affiliates to any persons by reason of the negligence or unauthorized acts
committed by the Associate Partner, any of its Sub-agents and/or the Variable
Commission Individual. The right of offset shall be in addition to and shall not
limit the Company's right to use any other legal or equitable remedy available
to it. The Company will have, and is hereby granted, a first lien on any and all
Compensation, Variable Commissions and claims payable hereunder as security for
the payment of any and all indebtedness and/or claims of the Associate Partner,
any of its Sub-agents and/or the Variable Commission Individual. Any debit
balance on the Associate Partner's commission statement resulting from any
charges or chargebacks of advances on Compensation or Variable Commissions as
well as chargebacks of indebtedness of the Variable Commission Individual and/or
any of the Sub-agents, shall be considered personal indebtedness of the
Associate Partner (or Individual Designee(s), if applicable) and shall be fully
recoverable by the Company. In the event of any termination of this Agreement,
any indebtedness of the Associate Partner, its Sub-agents and/or the Variable
Commission Individual to the Company and/or any Affiliate of the Company shall
thereby become immediately due and payable. It is the intention of the parties
that the
7
Associate Partner shall be ultimately responsible for any indebtedness of the
Associate Partner, any of its Sub-agents and/or the Variable Commission
Individual.
10. Indemnification. The Associate Partner shall indemnify and hold the
Company, its present and former officers, directors, employees, representatives
and agents harmless from and against all liabilities, claims, causes of action,
losses, damages, costs or expenses (including attorneys' fees and costs) arising
from any negligence, misrepresentation, misconduct, breach of this Agreement,
improper or unlawful termination of a Sub-agent by the Associate Partner, errors
or omissions or other wrongful action of the Associate Partner, its Affiliates,
employees, independent contractors, representatives, agents or Sub-agents,
including the failure to comply with any applicable laws, rules or regulations.
11. Errors and Omissions. The Associate Partner shall maintain errors and
omissions liability insurance coverage and a bond of indemnity in such amount
and on such terms as the Company may from time to time determine and shall
provide evidence of such coverage when requested by the Company.
12. Books and Records. The Associate Partner shall keep full, true and
accurate records of all business transacted by the Associate Partner under this
Agreement. The Company may, during regular business hours, enter the Associate
Partner's business premises and examine any of these records pertaining to the
Company's business which are reasonably necessary to show compliance with this
Agreement or meet regulatory requirements. All records, books and papers
supplied by the Company shall be and remain the property of the Company and
shall be delivered to the Company upon demand.
13. Advertising Materials. The Associate Partner shall not place into use
or distribute to its Sub-agents or any other person or Entity any advertising or
sales promotional material describing or related to the Products without the
prior written consent of the Company. As used herein, "advertising or sales
promotional material" includes, but is not limited to, any printed or published
material, audiovisual materials, billboards, descriptive literature, brochures,
leaflets, booklets, seminar material, computer print-outs or computer generated
documents, illustrations or form letters.
14. Authorization. By executing this Agreement, the Associate Partner and
Individual Designee(s), if applicable, certify that all covenants,
representations and warranties are accurate, true and complete. The Associate
Partner acknowledges that the Company may wish to investigate its background and
qualifications and, accordingly, hereby authorizes, to the fullest extent
permitted by law, the Company to communicate with individuals and organizations,
including but not limited to former employees, business and personal references,
government agencies and credit/inspection bureaus to verify its history and
credentials and to obtain other data that may help to analyze its
qualifications. The Associate Partner hereby releases the Company, and its
officers, directors, agents, attorneys, and employees from all liability, causes
of action, claims or
8
demands, which may result from this authorization to investigate its background
and qualifications.
15. Termination. This Agreement may be terminated at any time, with or
without cause, by either party giving the other party written notice thereof.
16. Obligations on Termination. Upon the termination of this Agreement for
any reason, the Associate Partner shall cooperate with the Company to settle all
outstanding accounts, immediately pay in cash any and all existing indebtedness
owed to the Company and immediately deliver to the Company any and all
previously furnished materials, supplies, advertising and other printed matter
that mentions the Company by name, rate books, and all other supplies connected
with the Company's business. Any obligation under this Agreement to pay
Compensation or Variable Commissions after the termination of this Agreement may
be, at the Company's option, discharged by the Company by payment of the
commuted value of such future Compensation or Variable Commissions. Such
commuted value shall be equivalent to the present value of such Compensation or
Variable Commissions at the time of payment, calculated by the Company on the
basis of reasonable premium payments, mortality, lapse and interest rates, as
determined by the Company.
17. Securities. Any Product issued by the Company that is deemed a
security subject to regulation by the Securities and Exchange Commission may not
be sold jointly with any individual, agency or firm unless such individual,
agency or firm either is registered with the National Association of Securities
Dealers or is an associated person of an individual or Entity so registered and
holds a valid registered representative agreement with WSS or another
broker/dealer with whom the Company has a written selling agreement. Any joint
Products must be specified as such at the time the application is delivered to
the Company.
18. Modification of Contracts; Compliance with Law. The Associate Partner
shall have no power with respect to any contract or agreement to which the
Company is a party, to make, alter or discharge such contract or agreement, or
to waive any forfeiture or the performance of any of the terms or conditions of
such contract or agreement. The Associate Partner shall comply with all laws and
regulations from time to time in effect relating to the business of insurance.
19. Privacy. (a) The Associate Partner shall treat all nonpublic personal
information received by it from the Company or from individuals who are
applicants for, owners of or eligible for benefits from Products ("Customer
Information") as confidential information in accordance with applicable laws,
including but not limited to federal and state consumer privacy laws and
regulations designed to ensure the confidentiality, security and integrity of
such information. Customer Information may include, but is not limited to, the
name, address, telephone number, e-mail address, social security number and
policy or contract numbers of a consumer or customer, as well as financial and
health information related to the consumer or customer. Customer Information
also includes any customer list or similar compilation derived from Customer
Information. The
9
Associate Partner shall use Customer Information only in connection with the
solicitation of applications for Products or the provision of services with
respect to Products offered by the Company, or as otherwise permitted by
applicable laws. The Associate Partner shall not have the right to use or
disclose Customer Information except as necessary to process transactions
requested by the consumer or customer; at the direction of the Company; or to
the extent permitted by applicable laws and regulations. The Associate Partner
shall take such steps as are necessary to ensure the security and integrity of
Customer Information in its possession.
(b) To the extent that the Associate Partner receives, creates, has
access to or uses protected health information regarding individuals who are
applicants for, owners of or eligible for benefits under certain health
insurance Products and optional riders offered by or through the Company,
MetLife or any of their respective Affiliates (collectively, "PHI" as hereafter
more specifically defined), in accordance with the requirements of the federal
Health Insurance Portability and Accountability Act of 1996 and related
regulations ("HIPAA"), as may be amended from time to time, the Associate
Partner agrees:
(i) Not to use or disclose PHI except (A) to perform
functions, activities or services for, or on behalf of, the Company as specified
in this Agreement and consistent with applicable laws, or (B) to the extent that
such use or disclosure is required by law. Any such use or disclosure shall be
limited to that required to perform such services or to that required by
relevant law.
(ii) To use appropriate safeguards to prevent use or
disclosure of PHI other than as permitted by this Agreement.
(iii) To promptly report to the Company any use or disclosure
of PHI not permitted by this Agreement of which it becomes aware and to mitigate
any harmful effect of any use or disclosure that is made by it in violation of
the requirements of this Agreement.
(iv) To ensure that any third party with whom the Associate
Partner contracts or who is hired by the Associate Partner and who may, under
that arrangement, receive or have access to PHI agrees to the same restrictions
and conditions that apply to the Associate Partner with respect to PHI under
this Agreement.
(v) Within 15 days of the Company's request, to provide the
Company with any PHI or information relating to PHI as deemed necessary by the
Company to provide individuals with access to, amendment of and an accounting of
disclosures of their PHI.
(vi) To make its records relating to its use or disclosure of
PHI available to the Secretary of the United States Department of Health and
Human Services at his/her request to determine the Company's compliance with
HIPAA.
10
(vii) Upon termination of this Agreement, and in accordance
with the Company's wishes, either to return or to destroy all PHI it maintains
in any form, and retain no copies. If the Company agrees that such return or
destruction is not feasible, the Associate Partner shall extend the protections
set forth in this Section to the PHI beyond the termination of this Agreement,
in which case any further use or disclosure of the PHI will be solely for the
purposes that make return or destruction infeasible. Destruction without
retention of copies is deemed "infeasible" if prohibited by the terms of this
Agreement or by applicable law or regulation, including record retention
requirements of various state insurance laws.
For these purposes, PHI means individually identifiable information that is
transmitted or maintained in any medium and relates to the past, present or
future physical or mental health or condition of an individual; the provision of
health care to an individual; or future payment for the provision of health care
to the individual. PHI includes demographic information about individuals,
including names; addresses; dates directly related to an individual, including
but not limited to birth date; telephone numbers; fax numbers; E-mail addresses;
Social Security numbers; policy numbers; medical record numbers; account
numbers; and any other unique identifying number, characteristic or code. PHI
includes, but is not limited to, information provided by an individual on an
application for a MetLife long term care insurance policy or other health care
plan; information related to the declination or issuance of, or claim under, a
MetLife long term care insurance policy; or information derived therefrom.
The Associate Partner's breach of any of these provisions shall constitute a
material breach of this Agreement and provide grounds for immediate termination
of this Agreement by the Company, notwithstanding any other provisions of this
Agreement. The provisions in this Section 19 will survive the termination of
this Agreement.
20. Minimum Production Standards. The Associate Partner hereby
acknowledges and agrees that the Company, in its sole discretion, may from time
to time establish minimum production requirements for the sale of Products that
the Associate Partner must meet during stated time periods in order to maintain
its ability to sell Products under the terms of this Agreement.
21. Payment of Compensation and Variable Commissions. The parties hereto
acknowledge and agree that in the event that the Company determines, in its
discretion, that the Associate Partner is in material violation of any of the
provisions of this Agreement, or if the Company receives an order, decree or
other notice from any court, Department of Insurance or other lawful authority
that Compensation or Variable Commissions are not to be paid or should not be
paid to the Associate Partner or Variable Commission Individual, as applicable,
for any reason whatsoever, or if the Company, in its discretion, determines that
there is a material issue regarding the appropriateness of paying Compensation
or Variable Commissions to the Associate Partner or Variable Commission
Individual, as applicable, from the sale of Products, then the Company shall
have the right to hold in abeyance any applicable Compensation or Variable
Commissions until such time as a final determination has been made, to the
Company's
11
reasonable satisfaction, as to the status and appropriateness of paying such
Compensation or Variable Commissions.
22. Miscellaneous.
(a) Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, successors and permitted
assigns. The Associate Partner may not assign its rights or delegate its duties
under this Agreement either in whole or in part without the prior written
consent of the Company. Any attempted assignment or delegation without such
consent will be void.
(b) Equitable Remedies. The Company will have the right to enforce
this Agreement and any of its provisions by injunction, specific performance or
other equitable relief without prejudice to any other rights and remedies that
it may have for a breach of this Agreement.
(c) Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Missouri excluding that body of law
pertaining to conflict of laws.
(d) Notices. Any notice or consent required by this Agreement shall
be in writing and either (i) personally delivered, (ii) mailed by certified or
registered mail, postage-prepaid, return receipt requested, or (iii) sent by
telefacsimile transmission and followed by delivery via U.S. mail, to such party
at the address and facsimile number specified on the signature page or to such
other address and/or facsimile number as such party may designate by notice
given in accordance herewith. Such notices or consents shall be deemed duly
given upon the earlier of (i) actual receipt and written acknowledgement thereof
by the receiving party, (ii) deposit in the United States mail as hereinbefore
set forth, or (iii) electronic confirmation of transmission by telefacsimile.
(e) Complete Understanding; Modification; Binding Effect. This
Agreement, together with any exhibits and schedules hereto, constitutes the
complete and exclusive understanding and agreement of the parties and supersedes
all prior understandings and agreements, whether written or oral, with respect
to the subject matter hereof. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by
the parties hereto. This Agreement is binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
(f) Jurisdiction and Venue. Any suit or legal proceeding with
respect to the Agreement shall be brought in the Circuit Courts of St. Louis
City or County, Missouri or the United States District Court for the Eastern
District of Missouri.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together
12
shall be deemed to be one and the same instrument. A signature transmitted by
telefacsimile or similar equipment shall be deemed an original signature.
(h) Severability. In the event any provision of this Agreement shall
be found invalid, void and/or unenforceable, for any reason, neither this
Agreement generally nor the remainder of this Agreement shall thereby be
rendered invalid, void and/or unenforceable, but instead each such provision,
and (if necessary) other provisions hereof, shall be reformed by a court of
competent jurisdiction so as to effect, insofar as is practicable, the intention
of the parties as set forth in this Agreement; provided, however, that if such
court is unable or unwilling to effect such reformation, the remainder of this
Agreement shall be construed and given effect as if such invalid, void and/or
unenforceable provisions had not been a part hereof.
(i) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver of consent shall be deemed to be or shall constitute
a waiver of consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(j) Headings. The description headings used in this Agreement are
inserted for convenience of reference only and do not and shall not be deemed to
modify the construction of any of the provisions of this Agreement.
(k) Gender and Number. Unless the context otherwise requires, any
pronouns whenever used herein shall include the corresponding masculine,
feminine or neuter pronouns and the plural shall include the singular and vice
versa.
(l) Arbitration. Except with respect to any actions seeking
injunctive relief or a restraining order, all disputes arising out of or
resulting from this Agreement shall be finally determined by binding arbitration
in St. Louis, Missouri, in accordance with the commercial rules of arbitration
of the American Arbitration Association. The arbitration shall be carried out by
one or more arbitrators in accordance with said rules. Any award shall be
enforceable in any court of competent jurisdiction in the same manner as
judgments. This agreement to arbitrate shall survive any termination of this
Agreement.
(m) Affiliates; Control. As used in this Agreement, "Affiliate" of
any Entity means any person or Entity which directly or indirectly through one
or more intermediaries Controls, is Controlled by, or is under common Control
with the specified Entity. "Control" means the ownership of a majority of the
equity or the ability to appoint or elect a majority of the board of directors
or similar governing body (by reason of equity ownership, contract or otherwise)
of an Entity.
13
The undersigned hereby acknowledges and agrees that by its signature below it is
acknowledging that it has reviewed and has had the opportunity to consult with
counsel and is agreeing to be bound by and be subject to all the terms and
conditions of the Associate Partner Agreement designated as the Series 2002 AP
Contract, as of this _____ day of _______________, 20___. Please complete each
line in the applicable section below in the capacity indicated.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
COMPANY: ASSOCIATE PARTNER:
GENERAL AMERICAN LIFE INSURANCE COMPANY [ ]
By: By:
----------------------------------- ---------------------------------
Name: Name:
--------------------------------- -------------------------------
Title: Title:
-------------------------------- ------------------------------
Address: Address:
000 Xxxxxx Xxxxxx
------------------------------------
Xx. Xxxxx, Xxxxxxxx 00000
------------------------------------
Facsimile #: (314) Facsimile #:
------------------- ------------------------
General American
Code #:
-----------------------------
Social Security #
Or Taxpayer ID #:
-------------------
(as applicable)
THE FOLLOWING APPLIES ONLY TO ASSOCIATE PARTNERS THAT ARE NOT INDIVIDUALS.
ASSOCIATE PARTNERS WHO ARE INDIVIDUALS SHOULD DISREGARD.
A. The Associate Partner hereby designates the person whose name appears on the
signature page hereto as the Variable Commission Individual (as defined in
Section 1(b) of the Agreement).
The Variable Commission Individual by his or her signature hereto hereby agrees
that he or she must be and remain a Variable Commission Individual (as defined
in Section 1(b) of the Agreement) to be entitled to receive Variable Commissions
hereunder and further acknowledges and agrees that the Company has a right of
offset against the Variable Commissions otherwise due to him or her in
accordance with the terms of Section 9 of the Agreement.
B. The Associate Partner hereby designates the person(s) whose name(s) appear on
the signature page hereto as its Individual Designee(s) (as defined in Section
1(e) of the Agreement).
14
Each Individual Designee by his or her signature hereto, hereby agrees to be
bound by all the provisions of this Agreement and hereby personally,
unconditionally, absolutely and irrevocably guarantees all obligations of the
Associate Partner under this Agreement, including but not limited to, any and
all obligations for any indebtedness of the Associate Partner to the Company.
This is a guaranty of payment and performance and not of collection. The
liability of each Individual Designee hereunder shall be direct and immediate
and not conditional or contingent upon the pursuit of remedies against any other
Individual Designee, person or Entity. Each Individual Designee acknowledges and
agrees that as a condition to the Company entering into this Agreement, it has
required such Individual Designee to guarantee to the Company payment and
performance of all obligations of the Associate Partner under the Agreement.
Each Individual Designee further acknowledges and agrees that the Associate
Partner's entering into this Agreement is of substantial benefit to such
Individual Designee. Each Individual Designee hereby waives demand, presentment
for payment and notice of nonpayment of any of the Associate Partner's
obligations under the Agreement.
VARIABLE COMMISSION INDIVIDUAL: INDIVIDUAL DESIGNEE(S):
-------------------------------------- ------------------------------------
Name: Name:
--------------------------------- -------------------------------
Address: Address:
-------------------------------------- ------------------------------------
-------------------------------------- ------------------------------------
Facsimile #: Facsimile #:
-------------------------- ------------------------
------------------------------------
Name:
-------------------------------
Address:
------------------------------------
------------------------------------
Facsimile #:
------------------------
By its signature below, the Managing Partner who recommended the Associate
Partner hereby acknowledges that it recommended such Associate Partner to the
Company. By its signature below, the Managing Partner further acknowledges that
pursuant to the terms of the Agreement it is responsible for all the acts and
failures to act of the Associate Partner under the Agreement and is further
responsible for all the obligations of the Associate Partner thereunder
including but not limited to, any and all obligations for any indebtedness of
the Associate Partner to the Company.
MANAGING PARTNER:
By:
---------------------------------
Name:
-------------------------------
Title (if applicable):
--------------
15
SERIES 2002 REP CONTRACT
REPRESENTATIVE AGREEMENT
THIS REPRESENTATIVE AGREEMENT ("Agreement") is made and entered into as of
the date set forth on the signature page for this Agreement by and between
GENERAL AMERICAN LIFE INSURANCE COMPANY, a Missouri insurance company (the
"Company"), a wholly-owned subsidiary of GENAMERICA FINANCIAL CORPORATION, a
Missouri corporation, and the person or entity designated as the Representative
on the signature page for this Agreement (the "Representative").
W I T N E S S E T H:
WHEREAS, the Company and the person or entity designated on the signature
page for this Agreement as either the Managing Partner or the Associate Partner
(either such person or entity referred to as the "Managing/Associate Partner")
have entered into a Managing Partner Agreement or Associate Partner Agreement
pursuant to which the Managing/Associate Partner has the right to select and
recommend one or more Representatives for appointment by the Company in such
capacity; and
WHEREAS, the Company and the Managing/Associate Partner desire to have the
Representative be appointed as a Representative and the Representative desires
to be appointed by the Company to be a Representative and to become an
independent contractor of the Company for the sale of certain Products (as
hereafter defined), subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual promises contained
herein, and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Appointment. (a) Subject to all the terms and conditions of this
Agreement, the Company hereby appoints the Representative for the purpose of
procuring applications for and the sale of all forms of individual life
insurance and other products, including Variable Products (as defined below)
provided the conditions of Section 1(b), below, are satisfied (collectively, the
"Products"), which the Representative is properly licensed to sell, as may from
time to time be set forth in the Schedule of Compensation attached hereto (the
"Schedule of Compensation") and made a part of this Agreement (which schedule
may be from time to time amended, modified and/or replaced in the Company's sole
discretion).
(b) If the Representative desires to procure applications for and
sell any variable life, annuity, endowment or other products underwritten by the
Company now or in the future and such products are deemed "securities" by
relevant authority subject to regulation by the Securities and Exchange
Commission (collectively, "Variable Products"), the Representative, if he or she
is an individual, must either have entered into a valid registered
representative agreement or similar agreement with Walnut Street Securities,
Inc. or its successors ("WSS"), which is then current and in full force and
effect, or have a valid agreement with another broker/dealer with whom the
Company has
a written selling agreement that permits the payment of commissions or other
compensation for the sale of Variable Products.
If the Representative is a non-individual entity ("Entity"), including but
not limited to, a corporation, partnership, limited partnership, joint venture,
limited liability company or association, the Entity hereby acknowledges that
any commissions, bonuses, fees or other payments otherwise payable to the
Representative with respect to Variable Products as set forth in the Schedule of
Compensation (collectively, the "Variable Commissions") can be paid only to an
individual who meets all of the requirements set forth below (the "Variable
Commission Individual"). The individual whose name is set forth as such on the
signature page (and any other individuals who may in the future desire to
receive Variable Commissions) will be a Variable Commission Individual if he or
she meets the following requirements:
(i) he or she is an individual who is separately contracted
with the Company as a Managing Partner, Associate Partner, Advisor or
Representative (or similar designations which may be used by the Company);
(ii) he or she has either entered into a valid registered
representative agreement or similar agreement with WSS, which is then
current and in full force and effect, or has a valid agreement with
another broker/dealer with which the Company has a written selling
agreement that is then current and in full force and effect; and
(iii) he or she has executed this Agreement and agrees that he
or she must be and remain a Variable Commission Individual to be entitled
to receive the applicable Variable Commissions.
(c) The applicable Variable Commissions are payable to the
Representative if he or she is an individual with a valid registered
representative or similar agreement with WSS. If the Representative has a valid
agreement with a broker/dealer other than WSS with whom the Company has a
written selling agreement, then the applicable Variable Commissions are payable
solely through that selling agreement. If the Representative is an Entity, then
any Variable Commissions that would otherwise be payable to the Representative
are payable to the applicable Variable Commission Individual in accordance with
the Schedule of Compensation if that Variable Commission Individual has a valid
registered representative or similar agreement with WSS. If the applicable
Variable Commission Individual has a valid agreement with a broker/dealer other
than WSS with whom the Company has a written selling agreement, then the
applicable Variable Commissions are payable solely through that selling
agreement.
(d) No territory is assigned hereunder, and the Company reserves the
right in its sole discretion to authorize or establish any number of agencies or
branches within any territory or jurisdiction.
2
(e) In the event that the Representative is an Entity, then it shall
designate the principal individual(s) who has(have) authority to bind the
Representative (the "Individual Designee(s)"), acceptable to the Company in its
sole discretion. Any Individual Designee licensed with WSS shall be a registered
representative (or similar designation) with WSS. Each Individual Designee shall
execute this Agreement and agree to be bound by all of its terms and conditions.
Each Individual Designee, by his or her signature to this Agreement, hereby
personally and unconditionally guarantees all obligations of the Representative
under this Agreement, including but not limited to, any and all obligations for
any indebtedness of the Representative to the Company. In the event of the death
or disability of an Individual Designee, or in the event of a change in control
of the Representative, the Representative shall designate a successor Individual
Designee, acceptable to the Company in its sole discretion, within ten (10) days
after the event requiring the need to designate such a successor. Such successor
Individual Designee shall continue to be subject to the provisions of this
Agreement and shall execute such documents as are deemed necessary by the
attorneys for the Company to bind the successor Individual Designee to the
provisions of this Agreement. The name(s) of the individual(s) designated by the
Representative as the Individual Designee(s) is(are) set forth on the signature
page of this Agreement.
2. Relationship of Parties. Nothing contained in this Agreement shall be
construed to create any relationship, partnership, employment or joint venture
between or among the Representative, Variable Commission Individual or
Individual Designee(s) and the Company other than that of independent
contractors. Except as expressly set forth herein, each party shall be solely
responsible for the respective fees, costs and expenses incurred in connection
with the operation of its business and the fulfillment of its obligations
hereunder. Neither the Representative, the Variable Commission Individual nor
the Individual Designee(s) is granted any right or authority to assume or create
any obligation or responsibility, express or implied, on behalf of the Company
or to bind the Company in any manner except as expressly permitted hereunder.
3. Compensation. The Representative's Compensation (as defined below)
shall be as shown on the Schedule of Compensation attached to this Agreement on
fully paid and issued Products written by the Representative and placed with the
Company hereunder. As used herein, "Compensation" shall mean all commissions,
bonuses, fees or other payments to be made as set forth in the Schedule of
Compensation, as it may from time to time be amended, modified and/or replaced
in the Company's sole discretion. In addition, Variable Commissions based on the
sales of Variable Products are payable as set forth in Section 1 of this
Agreement and the Schedule of Compensation. The Compensation or Variable
Commissions payable on any Product shall be determined solely in accordance with
the Schedule of Compensation (or the written selling agreement between the
Company and a broker/dealer other than WSS for Variable Commissions payable to
the Representative or Variable Commission Individual who has a valid agreement
with such broker/dealer) in effect at the time the application for such Product
is submitted to the Company. Compensation and Variable Commissions shown on the
Schedule of Compensation are subject to change at any time without notice, but
no change shall affect Compensation or Variable Commissions on any Product, the
3
application for which is submitted to the Company prior to the effective date of
the change. The Company reserves the right, in its sole discretion, to change
the time or event that signifies a change in the Compensation or Variable
Commissions payable on any Product caused by a change in the Schedule of
Compensation upon the giving of prior notice thereof to the Representative. The
Company's decision on the earning of Compensation or Variable Commissions is
final and binding.
4. Obligations of Representative. (a) If for any reason the Company
returns all or a portion of a premium paid in respect of a Product, the
Representative shall immediately refund to the Company the amount of
Compensation or Variable Commissions received on such returned premiums.
(b) If a Product issued by the Company is surrendered, the
Representative shall immediately refund to the Company a proportionate part of
the unearned Compensation or Variable Commissions, as applicable, received on
the surrendered Product. The amount to be refunded shall equal the amount of the
Compensation or Variable Commissions, as applicable, paid to the Representative
for the modal period in which the Product was surrendered, multiplied by a
fraction, the numerator of which is the number of complete months remaining in
the modal period and the denominator of which is the total number of complete
months in the modal period.
(c) The Representative may collect only the initial premium on all
applications solicited for the Company. All other premiums shall be paid
directly to the Company. All premium or other payments must be made payable to
the Company and must be in the form of a check, bank draft, money order or other
form acceptable to the Company, in its sole discretion. Premiums or other
payments collected by the Representative shall be delivered to the Company
immediately upon receipt. No funds received for the Company or on the Company's
behalf shall at any time be deposited in any account of the Representative.
(d) The Representative shall not, directly or indirectly, pay or
allow any of its employees, independent contractors, representatives or agents
to pay, or offer to pay or allow any of its employees, independent contractors,
representatives or agents to offer to pay any rebate of Compensation or Variable
Commissions on any Product issued or proposed to be issued by the Company, nor
shall it make any misrepresentation or incomplete comparisons for the purpose of
inducing a policyholder of the Company or any other company to convert, lapse,
forfeit or surrender such policyholder's insurance therein.
(e) In the event of the impounding or holding in abeyance of
premiums as a result of any court order or rule of any Insurance Department or
other lawful authority, the Compensation or Variable Commissions otherwise
payable to the Representative or Variable Commission Individual, as applicable,
shall remain in abeyance in the same manner and to the same extent as the
premium upon which such Compensation or Variable Commissions are payable.
4
(f) The Representative shall not knowingly permit delivery of any
policy of life insurance unless the applicant therefor is in good health and has
performed all acts and completed all documents required by the Company for the
issuance of such insurance and has paid the first premium.
(g) The Representative hereby acknowledges and agrees that it is
subject to and shall abide by all the rules, regulations, practices and
procedures from time to time in place, as the same are consistently applied by
the Company.
(h) The Representative will take out and keep renewed any and all
licenses required by statute, rule or regulation of any applicable state,
territory or other jurisdiction needed to procure applications for and sell
Products.
(i) The Representative shall provide continuing and ongoing services
to all of the policyholders to whom it sells Products hereunder and shall
utilize the "advertising or sales promotional material" (as defined in Section
10) consented to and approved by the Company in soliciting applications for and
sales of Products.
5. Annualized Commissions. Upon the request of the Representative and
approval by the Company and the Managing Partner or Associate Partner which
appointed the Representative, the full first year's commissions for a Product
sold by the Representative will be paid at the time the first premium
installment for the Product is paid to the Company. Entitlement to an annualized
commission payment shall be determined on a case by case basis and shall be
subject to the approval of the Company, in its sole discretion. Annualized
commissions shall be available only for Products with a premium payment mode
which has been approved by the Company for the annualized commissions program.
If any Product for which an annualized commission has been paid shall lapse or
terminate either before the end of the first policy year or before the full
first year's premium has been paid, any part of the commission which has been
paid on the unpaid and unearned premium shall be reversed and charged back
against the Representative. Any such chargeback will be treated as an
indebtedness of the Representative in the same manner as any other indebtedness
owed by the Representative to the Company. The Representative hereby agrees that
if its commission account is not sufficient to offset the chargebacks, the
Representative (or the Individual Designee(s), if applicable) will be personally
liable for such chargebacks. The Company reserves the right, in its sole
discretion, to determine which Products will qualify for annualized commissions,
and to terminate the Representative's participation in the annualized commission
program at any time. The payment of annualized commissions as herein provided
shall fully discharge all obligations of the Company to the Representative for
the payment of first year commissions on the Products to which such commissions
apply.
6. Indebtedness to Company; Offset. The right of the Representative and/or
Variable Commission Individual or other person claiming through the
Representative to receive any of the Compensation or Variable Commissions
provided for in this Agreement shall at all times be subordinate to the right of
the Company and/or its
5
Affiliates (as defined in Section 19) to offset and apply such Compensation or
Variable Commissions against or upon any indebtedness of the Representative
and/or the Variable Commission Individual, including any liability incurred by
the Company and/or its Affiliates to any persons by reason of the negligence or
unauthorized acts committed by the Representative and/or the Variable Commission
Individual. The right of offset shall be in addition to and shall not limit the
Company's right to use any other legal or equitable remedy available to it. The
Company will have, and is hereby granted, a first lien on any and all
Compensation, Variable Commissions and claims payable hereunder as security for
the payment of any and all indebtedness and/or claims of the Representative
and/or the Variable Commission Individual. Any debit balance on the
Representative's commission statement resulting from any charges or chargebacks
of advances on Compensation or Variable Commissions as well as chargebacks of
indebtedness of the Variable Commission Individual, shall be considered personal
indebtedness of the Representative (or the Individual Designee(s), if
applicable) and shall be fully recoverable by the Company. In the event of any
termination of this Agreement, any indebtedness of the Representative and/or the
Variable Commission Individual to the Company and/or any Affiliate of the
Company shall thereby become immediately due and payable. It is the intention of
the parties that the Representative shall be ultimately responsible for any
indebtedness of the Representative and/or the Variable Commission Individual.
7. Indemnification. The Representative shall indemnify and hold the
Company, its present and former officers, directors, employees and agents
harmless from and against all liabilities, claims, causes of action, losses,
damages, costs or expenses (including attorneys' fees and costs) arising from
any negligence, misrepresentation, misconduct, breach of this Agreement, errors
or omissions or other wrongful action of the Representative, its Affiliates or
employees, including the failure to comply with any applicable laws, rules or
regulations.
8. Errors and Omissions. The Representative shall maintain errors and
omissions liability insurance coverage and a bond of indemnity in such amount
and on such terms as the Company may from time to time determine and shall
provide evidence of such coverage when requested by the Company.
9. Books and Records. The Representative shall keep full, true and
accurate records of all business transacted by the Representative under this
Agreement. The Company may, during regular business hours, enter the
Representative's business premises and examine any of these records pertaining
to the Company's business which are reasonably necessary to show compliance with
this Agreement or meet regulatory requirements. All records, books and papers
supplied by the Company shall be and remain the property of the Company and
shall be delivered to the Company upon demand.
10. Advertising Materials. The Representative shall not place into use or
distribute to any person or Entity any advertising or sales promotional material
describing or related to the Products without the prior written consent of the
Company. As used
6
herein, "advertising or sales promotional material" includes, but is not limited
to, any printed or published material, audiovisual materials, billboards,
descriptive literature, brochures, leaflets, booklets, seminar material,
computer print-outs or computer generated documents, illustrations or form
letters.
11. Authorization. By executing this Agreement, the Representative and
Individual Designee(s), if applicable, certify that all covenants,
representations and warranties are accurate, true and complete. The
Representative acknowledges that the Company may wish to investigate its
background and qualifications and, accordingly, hereby authorizes, to the
fullest extent permitted by law, the Company to communicate with individuals and
organizations, including but not limited to former employees, business and
personal references, government agencies and credit/inspection bureaus to verify
its history and credentials and to obtain other data that may help to analyze
its qualifications. The Representative hereby releases the Company, and its
officers, directors, agents, attorneys, and employees from all liability, causes
of action, claims or demands, which may result from this authorization to
investigate its background and qualifications.
12. Termination. This Agreement may be terminated at any time, with or
without cause, by either party giving the other party written notice thereof.
13. Obligations on Termination. Upon the termination of this Agreement for
any reason, the Representative shall cooperate with the Company to settle all
outstanding accounts, immediately pay in cash any and all existing indebtedness
owed to the Company and immediately deliver to the Company any and all
previously furnished materials, supplies, advertising and other printed matter
that mentions the Company by name, rate books, and all other supplies connected
with the Company's business. Any obligation under this Agreement to pay
Compensation or Variable Commissions after the termination of this Agreement may
be, at the Company's option, discharged by the Company by payment of the
commuted value of such future Compensation or Variable Commissions. Such
commuted value shall be equivalent to the present value of such Compensation or
Variable Commissions at the time of payment, calculated by the Company on the
basis of reasonable premium payments, mortality, lapse and interest rates, as
determined by the Company in its sole discretion.
14. Securities. Any Product issued by the Company that is deemed a
security subject to regulation by the Securities and Exchange Commission may not
be sold jointly with any individual, agency or firm unless such individual,
agency or firm either is registered with the National Association of Securities
Dealers or is an associated person of an individual or Entity so registered and
holds a valid registered representative agreement with WSS or another
broker/dealer with whom the Company has a written selling agreement. Any joint
Products must be specified as such at the time the application is delivered to
the Company.
15. Modification of Contracts; Compliance with Law. The Representative
shall have no power with respect to any contract or agreement to which the
Company is a
7
party, to make, alter or discharge such contract or agreement, or to waive any
forfeiture or the performance of any of the terms or conditions of such contract
or agreement. The Representative shall comply with all laws and regulations from
time to time in effect relating to the business of insurance.
16. Privacy. (a) The Representative shall treat all nonpublic personal
information received by it from the Company or from individuals who are
applicants for, owners of or eligible for benefits from Products ("Customer
Information") as confidential information in accordance with applicable laws,
including but not limited to federal and state consumer privacy laws and
regulations designed to ensure the confidentiality, security and integrity of
such information. Customer Information may include, but is not limited to, the
name, address, telephone number, e-mail address, social security number and
policy or contract numbers of a consumer or customer, as well as financial and
health information related to the consumer or customer. Customer Information
also includes any customer list or similar compilation derived from Customer
Information. The Representative shall use Customer Information only in
connection with the solicitation of applications for Products or the provision
of services with respect to Products offered by the Company, or as otherwise
permitted by applicable laws. The Representative shall not have the right to use
or disclose Customer Information except as necessary to process transactions
requested by the consumer or customer; at the direction of the Company; or to
the extent permitted by applicable laws and regulations. The Representative
shall take such steps as are necessary to ensure the security and integrity of
Customer Information in its possession.
(b) To the extent that the Representative receives, creates, has
access to or uses protected health information regarding individuals who are
applicants for, owners of or eligible for benefits under certain health
insurance Products and optional riders offered by or through the Company,
MetLife or any of their respective Affiliates (collectively, "PHI" as hereafter
more specifically defined), in accordance with the requirements of the federal
Health Insurance Portability and Accountability Act of 1996 and related
regulations ("HIPAA"), as may be amended from time to time, the Representative
agrees:
(i) Not to use or disclose PHI except (A) to perform
functions, activities or services for, or on behalf of, the Company as specified
in this Agreement and consistent with applicable laws, or (B) to the extent that
such use or disclosure is required by law. Any such use or disclosure shall be
limited to that required to perform such services or to that required by
relevant law.
(ii) To use appropriate safeguards to prevent use or
disclosure of PHI other than as permitted by this Agreement.
(iii) To promptly report to the Company any use or disclosure
of PHI not permitted by this Agreement of which it becomes aware and to mitigate
any harmful effect of any use or disclosure that is made by it in violation of
the requirements of this Agreement.
8
(iv) To ensure that any third party with whom the
Representative contracts or who is hired by the Representative and who may,
under that arrangement, receive or have access to PHI agrees to the same
restrictions and conditions that apply to the Representative with respect to PHI
under this Agreement.
(v) Within 15 days of the Company's request, to provide the
Company with any PHI or information relating to PHI as deemed necessary by the
Company to provide individuals with access to, amendment of and an accounting of
disclosures of their PHI.
(vi) To make its records relating to its use or disclosure of
PHI available to the Secretary of the United States Department of Health and
Human Services at his/her request to determine the Company's compliance with
HIPAA.
(vii) Upon termination of this Agreement, and in accordance
with the Company's wishes, either to return or to destroy all PHI it maintains
in any form, and retain no copies. If the Company agrees that such return or
destruction is not feasible, the Representative shall extend the protections set
forth in this Section to the PHI beyond the termination of this Agreement, in
which case any further use or disclosure of the PHI will be solely for the
purposes that make return or destruction infeasible. Destruction without
retention of copies is deemed "infeasible" if prohibited by the terms of this
Agreement or by applicable law or regulation, including record retention
requirements of various state insurance laws.
For these purposes, PHI means individually identifiable information that is
transmitted or maintained in any medium and relates to the past, present or
future physical or mental health or condition of an individual; the provision of
health care to an individual; or future payment for the provision of health care
to the individual. PHI includes demographic information about individuals,
including names; addresses; dates directly related to an individual, including
but not limited to birth date; telephone numbers; fax numbers; E-mail addresses;
Social Security numbers; policy numbers; medical record numbers; account
numbers; and any other unique identifying number, characteristic or code. PHI
includes, but is not limited to, information provided by an individual on an
application for a MetLife long term care insurance policy or other health care
plan; information related to the declination or issuance of, or claim under, a
MetLife long term care insurance policy; or information derived therefrom.
The Representative's breach of any of these provisions shall constitute a
material breach of this Agreement and provide grounds for immediate termination
of this Agreement by the Company, notwithstanding any other provisions of this
Agreement. The provisions in this Section 16 will survive the termination of
this Agreement.
17. Minimum Production Standards. The Representative hereby acknowledges
and agrees that the Company, in its sole discretion, may from time to time
establish minimum production requirements for the sale of Products that the
9
Representative must meet during stated time periods in order to maintain its
ability to sell Products under the terms of this Agreement.
18. Payment of Compensation and Variable Commissions. The parties hereto
acknowledge and agree that in the event that the Company determines, in its
discretion, that the Representative is in material violation of any of the
provisions of this Agreement, or if the Company receives an order, decree or
other notice from any court, Department of Insurance or other lawful authority
that Compensation or Variable Commissions are not to be paid or should not be
paid to the Representative or Variable Commission Individual, as applicable, for
any reason whatsoever, or if the Company, in its discretion, determines that
there is a material issue regarding the appropriateness of paying Compensation
or Variable Commissions to the Representative or Variable Commission Individual,
as applicable, from the sale of Products, then the Company shall have the right
to hold in abeyance any applicable Compensation or Variable Commissions until
such time as a final determination has been made, to the Company's reasonable
satisfaction, as to the status and appropriateness of paying such Compensation
or Variable Commissions.
19. Miscellaneous.
(a) Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, successors and permitted
assigns. The Representative may not assign its rights or delegate its duties
under this Agreement either in whole or in part without the prior written
consent of the Company. Any attempted assignment or delegation without such
consent will be void.
(b) Equitable Remedies. The Company will have the right to enforce
this Agreement and any of its provisions by injunction, specific performance or
other equitable relief without prejudice to any other rights and remedies that
it may have for a breach of this Agreement.
(c) Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Missouri excluding that body of law
pertaining to conflict of laws.
(d) Notices. Any notice or consent required by this Agreement shall
be in writing and either (i) personally delivered, (ii) mailed by certified or
registered mail, postage-prepaid, return receipt requested, or (iii) sent by
telefacsimile transmission and followed by delivery via U.S. mail, to such party
at the address and facsimile number specified on the signature page or to such
other address and/or facsimile number as such party may designate by notice
given in accordance herewith. Such notices or consents shall be deemed duly
given upon the earlier of (i) actual receipt and written acknowledgement thereof
by the receiving party, (ii) deposit in the United States mail as hereinbefore
set forth, or (iii) electronic confirmation of transmission by telefacsimile.
10
(e) Complete Understanding; Modification; Binding Effect. This
Agreement, together with any exhibits and schedules hereto, constitutes the
complete and exclusive understanding and agreement of the parties and supersedes
all prior understandings and agreements, whether written or oral, with respect
to the subject matter hereof. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by
the parties hereto. This Agreement is binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
(f) Jurisdiction and Venue. Any suit or legal proceeding with
respect to the Agreement shall be brought in the Circuit Courts of St. Louis
City or County, Missouri or the United States District Court for the Eastern
District of Missouri.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument. A signature
transmitted by telefacsimile or similar equipment shall be deemed an original
signature.
(h) Severability. In the event any provision of this Agreement shall
be found invalid, void and/or unenforceable, for any reason, neither this
Agreement generally nor the remainder of this Agreement shall thereby be
rendered invalid, void and/or unenforceable, but instead each such provision,
and (if necessary) other provisions hereof, shall be reformed by a court of
competent jurisdiction so as to effect, insofar as is practicable, the intention
of the parties as set forth in this Agreement; provided, however, that if such
court is unable or unwilling to effect such reformation, the remainder of this
Agreement shall be construed and given effect as if such invalid, void and/or
unenforceable provisions had not been a part hereof.
(i) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver of consent shall be deemed to be or shall constitute
a waiver of consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(j) Headings. The description headings used in this Agreement are
inserted for convenience of reference only and do not and shall not be deemed to
modify the construction of any of the provisions of this Agreement.
(k) Gender and Number. Unless the context otherwise requires, any
pronouns whenever used herein shall include the corresponding masculine,
feminine or neuter pronouns and the plural shall include the singular and vice
versa.
11
(l) Arbitration. Except with respect to any actions seeking
injunctive relief or a restraining order, all disputes arising out of or
resulting from this Agreement shall be finally determined by binding arbitration
in St. Louis, Missouri, in accordance with the commercial rules of arbitration
of the American Arbitration Association. The arbitration shall be carried out by
one or more arbitrators in accordance with said rules. Any award shall be
enforceable in any court of competent jurisdiction in the same manner as
judgments. This agreement to arbitrate shall survive any termination of this
Agreement.
(m) Affiliates; Control. As used in this Agreement, "Affiliate" of
an Entity means any person or Entity which directly or indirectly through one or
more intermediaries Controls, is Controlled by, or is under common Control with
the specified Entity. "Control" means the ownership of a majority of the equity
or the ability to appoint or elect a majority of the board of directors or
similar governing body (by reason of equity ownership, contract or otherwise) of
an Entity.
[THE REST OF THIS PAGE LEFT INTENTIONALLY BLANK]
12
The undersigned hereby acknowledges and agrees that by its signature below it is
acknowledging that it has reviewed and has had the opportunity to consult with
counsel and is agreeing to be bound by and be subject to all the terms and
conditions of the Representative Agreement designated as the Series 2002 REP
Contract, as of this _____ day of _______________, 20___. Please complete each
line in the applicable section below in the capacity indicated.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
COMPANY: REPRESENTATIVE:
GENERAL AMERICAN LIFE INSURANCE [ ]
COMPANY -------------------
By: By:
----------------------------- -------------------------------
Name: Name:
-------------------------- ----------------------------
Title: Title:
------------------------- ---------------------------
Address: Address:
000 Xxxxxx Xxxxxx
----------------------------------
Xx. Xxxxx, Xxxxxxxx 00000
----------------------------------
Facsimile #: (314) Facsimile #:
------------- ---------------------
General American
Code #:
---------------------------
Social Security #
Or Taxpayer ID #:
(as applicable) -----------------
THE FOLLOWING APPLIES ONLY TO REPRESENTATIVES THAT ARE NOT INDIVIDUALS.
REPRESENTATIVES WHO ARE INDIVIDUALS SHOULD DISREGARD.
A. The Representative hereby designates the person whose name appears on the
signature page hereto as the Variable Commission Individual (as defined in
Section 1(b) of the Agreement).
The Variable Commission Individual by his or her signature hereto hereby agrees
that he or she must be and remain a Variable Commission Individual (as defined
in Section 1(b) of the Agreement) to be entitled to receive Variable Commissions
hereunder and further acknowledges and agrees that the Company has a right of
offset against the Variable Commissions otherwise due to him or her in
accordance with the terms of Section 6 of the Agreement.
B. The Representative hereby designates the person(s) whose name(s) appear on
the signature page hereto as its Individual Designee(s) (as defined in Section
1(e) of the Agreement).
13
Each Individual Designee by his or her signature hereto, hereby agrees to be
bound by all the provisions of this Agreement and hereby personally,
unconditionally, absolutely and irrevocably guarantees all obligations of the
Representative under this Agreement, including but not limited to, any and all
obligations for any indebtedness of the Representative to the Company. This is a
guaranty of payment and performance and not of collection. The liability of each
Individual Designee hereunder shall be direct and immediate and not conditional
or contingent upon the pursuit of remedies against any other Individual
Designee, person or Entity. Each Individual Designee acknowledges and agrees
that as a condition to the Company entering into this Agreement, it has required
such Individual Designee to guarantee to the Company payment and performance of
all obligations of the Representative under the Agreement. Each Individual
Designee further acknowledges and agrees that the Representative's entering into
this Agreement is of substantial benefit to such Individual Designee. Each
Individual Designee hereby waives demand, presentment for payment and notice of
nonpayment of any of the Representative's obligations under the Agreement.
VARIABLE COMMISSION INDIVIDUAL: INDIVIDUAL DESIGNEE:
------------------------------- ---------------------------------
Name: Name:
-------------------------- ----------------------------
Address: Address:
------------------------------- ---------------------------------
------------------------------- ---------------------------------
Facsimile #: Facsimile #:
------------------ --------------------
---------------------------------
Name:
----------------------------
Address:
---------------------------------
---------------------------------
Facsimile #:
--------------------
By its signature below, the Managing Partner (and, if applicable, the Associate
Partner) who recommended the Representative hereby acknowledges that it
recommended such Representative to the Company. By its signature below, the
Managing Partner (and, if applicable the Associate Partner) further acknowledges
that pursuant to the terms of the Agreement it (or they) is (or are) responsible
for all the acts and failures to act of the Representative under the Agreement
and is (or are) further responsible for all the obligations of the
Representative thereunder including but not limited to, any and all obligations
for any indebtedness of the Representative to the Company.
ASSOCIATE PARTNER: MANAGING PARTNER:
By: By:
------------------------------- -------------------------------
Name: Name:
---------------------------- ----------------------------
Title (if applicable): Title (if applicable):
------------ ------------
14
SERIES 2002 ADV CONTRACT
ADVISOR AGREEMENT
THIS ADVISOR AGREEMENT ("Agreement") is made and entered into as of the
date set forth on the signature page for this Agreement by and between GENERAL
AMERICAN LIFE INSURANCE COMPANY, a Missouri insurance company (the "Company"), a
wholly-owned subsidiary of GENAMERICA FINANCIAL CORPORATION, a Missouri
corporation, and the person or entity designated as the Advisor on the signature
page for this Agreement (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Company and the person or entity designated on the signature
page for this Agreement as either the Managing Partner or the Associate Partner
(either such person or entity referred to as the "Managing/Associate Partner")
have entered into a Managing Partner Agreement or Associate Partner Agreement,
as applicable, pursuant to which the Managing/Associate Partner has the right to
select and recommend one or more Advisors for appointment by the Company in such
capacity; and
WHEREAS, the Company and the Managing/Associate Partner desire to have the
Advisor be appointed as an Advisor and the Advisor desires to be appointed by
the Company to be an Advisor and to become an independent contractor of the
Company for the sale of certain Products (as hereafter defined), subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual promises contained
herein, and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Appointment. (a) Subject to all the terms and conditions of this
Agreement, the Company hereby appoints the Advisor for the purpose of procuring
applications for and the sale of all forms of individual life insurance and
other products, including Variable Products (as defined below) provided the
conditions of Section 1(b), below, are satisfied (collectively, the "Products"),
which the Advisor is properly licensed to sell, as may from time to time be set
forth in the Schedule of Compensation attached hereto (the "Schedule of
Compensation") and made a part of this Agreement (which schedule may be from
time to time amended, modified and/or replaced in the Company's sole
discretion).
(b) If the Advisor desires to procure applications for and sell any
variable life, annuity, endowment or other products underwritten by the Company
now or in the future and such products are deemed "securities" by relevant
authority subject to regulation by the Securities and Exchange Commission
(collectively, "Variable Products"), the Advisor, if he or she is an individual,
must either have entered into a valid registered representative agreement or
similar agreement with Walnut Street Securities, Inc. or its successors ("WSS"),
which is then current and in full force and effect, or have a valid agreement
with another broker/dealer with whom the Company has a written
selling agreement that permits the payment of commissions or other compensation
for the sale of Variable Products.
If the Advisor is a non-individual entity ("Entity"), including but not
limited to, a corporation, partnership, limited partnership, joint venture,
limited liability company or association, the Entity hereby acknowledges that
any commissions, bonuses, fees or other payments otherwise payable to the
Advisor with respect to Variable Products as set forth in the Schedule of
Compensation (collectively, the "Variable Commissions") can be paid only to an
individual who meets all of the requirements set forth below (the "Variable
Commission Individual"). The individual whose name is set forth as such on the
signature page (and any other individuals who may in the future desire to
receive Variable Commissions) will be a Variable Commission Individual if he or
she meets the following requirements:
(i) he or she is an individual who is separately contracted with the
Company as a Managing Partner, Associate Partner, Advisor or
Representative (or similar designations which may be used by the Company);
(ii) he or she has either entered into a valid registered
representative agreement or similar agreement with WSS, which is then
current and in full force and effect, or has a valid agreement with
another broker/dealer with which the Company has a written selling
agreement that is then current and in full force and effect; and
(iii) he or she has executed this Agreement and agrees that he or
she must be and remain a Variable Commission Individual to be entitled to
receive the applicable Variable Commissions.
(c) The applicable Variable Commissions are payable to the Advisor if he
or she is an individual with a valid registered representative or similar
agreement with WSS. If the Advisor has a valid agreement with a broker/dealer
other than WSS with whom the Company has a written selling agreement, then the
applicable Variable Commissions are payable solely through that selling
agreement. If the Advisor is an Entity, then any Variable Commissions that would
otherwise be payable to the Advisor are payable to the applicable Variable
Commission Individual in accordance with the Schedule of Compensation if that
Variable Commission Individual has a valid registered representative or similar
agreement with WSS. If the applicable Variable Commission Individual has a valid
agreement with a broker/dealer other than WSS with whom the Company has a
written selling agreement, then the applicable Variable Commissions are payable
solely through that selling agreement.
(d) No territory is assigned hereunder, and the Company reserves the right
in its sole discretion to authorize or establish any number of agencies or
branches within any territory or jurisdiction.
2
(e) In the event that the Advisor is an Entity, then it shall
designate the principal individual(s) who has(have) authority to bind the
Advisor (the "Individual Designee(s)"), acceptable to the Company in its sole
discretion. Any Individual Designee licensed with WSS shall be a registered
representative (or similar designation) with WSS. Each Individual Designee shall
execute this Agreement and agree to be bound by all of its terms and conditions.
Each Individual Designee, by his or her signature to this Agreement, hereby
personally and unconditionally guarantees all obligations of the Advisor under
this Agreement, including but not limited to, any and all obligations for any
indebtedness of the Advisor to the Company. In the event of the death or
disability of an Individual Designee, or in the event of a change in control of
the Advisor, the Advisor shall designate a successor Individual Designee,
acceptable to the Company in its sole discretion, within ten (10) days after the
event requiring the need to designate such a successor. Such successor
Individual Designee shall continue to be subject to the provisions of this
Agreement and shall execute such documents as are deemed necessary by the
attorneys for the Company to bind the successor Individual Designee to the
provisions of this Agreement. The name(s) of the individual(s) designated by the
Advisor as the Individual Designee(s) is(are) set forth on the signature page of
this Agreement.
2. Relationship of Parties. Nothing contained in this Agreement shall be
construed to create any relationship, partnership, employment or joint venture
between or among the Advisor, Variable Commission Individual or Individual
Designee(s) and the Company other than that of independent contractors. Except
as expressly set forth herein, each party shall be solely responsible for the
respective fees, costs and expenses incurred in connection with the operation of
its business and the fulfillment of its obligations hereunder. Neither the
Advisor, the Variable Commission Individual nor the Individual Designee(s) is
granted any right or authority to assume or create any obligation or
responsibility, express or implied, on behalf of the Company or to bind the
Company in any manner except as expressly permitted hereunder.
3. Compensation. The Advisor's Compensation (as defined below) shall be as
shown on the Schedule of Compensation attached to this Agreement on fully paid
and issued Products written by the Advisor and placed with the Company
hereunder. As used herein, "Compensation" shall mean all commissions, bonuses,
fees or other payments to be made as set forth in the Schedule of Compensation,
as it may from time to time be amended, modified and/or replaced in the
Company's sole discretion. In addition, Variable Commissions based on the sales
of Variable Products are payable as set forth in Section 1 of this Agreement and
the Schedule of Compensation. The Compensation or Variable Commissions payable
on any Product shall be determined solely in accordance with the Schedule of
Compensation (or the written selling agreement between the Company and a
broker/dealer other than WSS for Variable Commissions payable to the Advisor or
Variable Commission Individual who has a valid agreement with such
broker/dealer) in effect at the time the application for such Product is
submitted to the Company. Compensation and Variable Commissions shown on the
Schedule of Compensation are subject to change at any time without notice, but
no change shall affect Compensation or Variable Commissions on any Product, the
application for which is submitted to the Company prior to the effective date of
the change. The Company
3
reserves the right, in its sole discretion, to change the time or event that
signifies a change in the Compensation or Variable Commissions payable on any
Product caused by a change in the Schedule of Compensation upon the giving of
prior notice thereof to the Advisor. The Company's decision on the earning of
Compensation or Variable Commissions is final and binding.
4. Obligations of Advisor. (a) If for any reason the Company returns all
or a portion of a premium paid in respect of a Product, the Advisor shall
immediately refund to the Company the amount of Compensation or Variable
Commissions received on such returned premiums.
(b) If a Product issued by the Company is surrendered, the Advisor
shall immediately refund to the Company a proportionate part of the unearned
Compensation or Variable Commissions, as applicable, received on the surrendered
Product. The amount to be refunded shall equal the amount of the Compensation or
Variable Commissions, as applicable, paid to the Advisor for the modal period in
which the Product was surrendered, multiplied by a fraction, the numerator of
which is the number of complete months remaining in the modal period and the
denominator of which is the total number of complete months in the modal period.
(c) The Advisor may collect only the initial premium on all
applications solicited for the Company. All other premiums shall be paid
directly to the Company. All premium or other payments must be made payable to
the Company and must be in the form of a check, bank draft, money order or other
form acceptable to the Company, in its sole discretion. Premiums or other
payments collected by the Advisor shall be delivered to the Company immediately
upon receipt. No funds received for the Company or on the Company's behalf shall
at any time be deposited in any account of the Advisor.
(d) The Advisor shall not, directly or indirectly, pay or allow any
of its employees, independent contractors, representatives or agents to pay, or
offer to pay or allow any of its employees, independent contractors,
representatives or agents to offer to pay any rebate of Compensation or Variable
Commissions on any Product issued or proposed to be issued by the Company, nor
shall it make any misrepresentation or incomplete comparisons for the purpose of
inducing a policyholder of the Company or any other company to convert, lapse,
forfeit or surrender such policyholder's insurance therein.
(e) In the event of the impounding or holding in abeyance of
premiums as a result of any court order or rule of any Insurance Department or
other lawful authority, the Compensation or Variable Commissions otherwise
payable to the Advisor or Variable Commission Individual, as applicable, shall
remain in abeyance in the same manner and to the same extent as the premium upon
which such Compensation or Variable Commissions are payable.
(f) The Advisor shall not knowingly permit delivery of any policy of
life insurance unless the applicant therefor is in good health and has performed
all acts and
4
completed all documents required by the Company for the issuance of such
insurance and has paid the first premium.
(g) The Advisor hereby acknowledges and agrees that it is subject to
and shall abide by all the rules, regulations, practices and procedures from
time to time in place, as the same are consistently applied by the Company.
(h) The Advisor will take out and keep renewed any and all licenses
required by statute, rule or regulation of any applicable state, territory or
other jurisdiction needed to procure applications for and sell Products.
(i) The Advisor shall provide continuing and ongoing services to all
of the policyholders to whom it sells Products hereunder and shall utilize the
"advertising or sales promotional material" (as defined in Section 10) consented
to and approved by the Company in soliciting applications for and sales of
Products.
5. Annualized Commissions. Upon the request of the Advisor and approval by
the Company and the Managing Partner or Associate Partner which appointed the
Advisor, the full first year's commissions for a Product sold by the Advisor
will be paid at the time the first premium installment for the Product is paid
to the Company. Entitlement to an annualized commission payment shall be
determined on a case by case basis and shall be subject to the approval of the
Company, in its sole discretion. Annualized commissions shall be available only
for Products with a premium payment mode which has been approved by the Company
for the annualized commissions program. If any Product for which an annualized
commission has been paid shall lapse or terminate either before the end of the
first policy year or before the full first year's premium has been paid, any
part of the commission which has been paid on the unpaid and unearned premium
shall be reversed and charged back against the Advisor. Any such chargeback will
be treated as an indebtedness of the Advisor in the same manner as any other
indebtedness owed by the Advisor to the Company. The Advisor hereby agrees that
if its commission account is not sufficient to offset the chargebacks, the
Advisor (or the Individual Designee(s), if applicable) will be personally liable
for such chargebacks. The Company reserves the right, in its sole discretion, to
determine which Products will qualify for annualized commissions, and to
terminate the Advisor's participation in the annualized commission program at
any time. The payment of annualized commissions as herein provided shall fully
discharge all obligations of the Company to the Advisor for the payment of first
year commissions on the Products to which such commissions apply.
6. Indebtedness to Company; Offset. The right of the Advisor and/or
Variable Commission Individual or other person claiming through the Advisor to
receive any of the Compensation or Variable Commissions provided for in this
Agreement shall at all times be subordinate to the right of the Company and/or
its Affiliates (as defined in Section 19) to offset and apply such Compensation
or Variable Commissions against or upon any indebtedness of the Advisor and/or
the Variable Commission Individual, including any liability incurred by the
Company and/or its Affiliates to any persons by
5
reason of the negligence or unauthorized acts committed by the Advisor and/or
the Variable Commission Individual. The right of offset shall be in addition to
and shall not limit the Company's right to use any other legal or equitable
remedy available to it. The Company will have, and is hereby granted, a first
lien on any and all Compensation, Variable Commissions and claims payable
hereunder as security for the payment of any and all indebtedness and/or claims
of the Advisor and/or the Variable Commission Individual. Any debit balance on
the Advisor's commission statement resulting from any charges or chargebacks of
advances on Compensation or Variable Commissions as well as chargebacks of
indebtedness of the Variable Commission Individual, shall be considered personal
indebtedness of the Advisor (or Individual Designee(s), if applicable) and shall
be fully recoverable by the Company. In the event of any termination of this
Agreement, any indebtedness of the Advisor and/or the Variable Commission
Individual to the Company and/or any Affiliate of the Company shall thereby
become immediately due and payable. It is the intention of the parties that the
Advisor shall be ultimately responsible for any indebtedness of the Advisor
and/or the Variable Commission Individual.
7. Indemnification. The Advisor shall indemnify and hold the Company, its
present and former officers, directors, employees and agents harmless from and
against all liabilities, claims, causes of action, losses, damages, costs or
expenses (including attorneys' fees and costs) arising from any negligence,
misrepresentation, misconduct, breach of this Agreement, errors or omissions or
other wrongful action of the Advisor, its Affiliates or employees, including the
failure to comply with any applicable laws, rules or regulations.
8. Errors and Omissions. The Advisor shall maintain errors and omissions
liability insurance coverage and a bond of indemnity in such amount and on such
terms as the Company may from time to time determine and shall provide evidence
of such coverage when requested by the Company.
9. Books and Records. The Advisor shall keep full, true and accurate
records of all business transacted by the Advisor under this Agreement. The
Company may, during regular business hours, enter the Advisor's business
premises and examine any of these records pertaining to the Company's business
which are reasonably necessary to show compliance with this Agreement or meet
regulatory requirements. All records, books and papers supplied by the Company
shall be and remain the property of the Company and shall be delivered to the
Company upon demand.
10. Advertising Materials. The Advisor shall not place into use or
distribute to any person or Entity any advertising or sales promotional material
describing or related to the Products without the prior written consent of the
Company. As used herein, "advertising or sales promotional material" includes,
but is not limited to, any printed or published material, audiovisual materials,
billboards, descriptive literature, brochures, leaflets, booklets, seminar
material, computer print-outs or computer generated documents, illustrations or
form letters.
6
11. Authorization. By executing this Agreement, the Advisor and Individual
Designee(s), if applicable, certify that all covenants, representations and
warranties are accurate, true and complete. The Advisor acknowledges that the
Company may wish to investigate its background and qualifications and,
accordingly, hereby authorizes, to the fullest extent permitted by law, the
Company to communicate with individuals and organizations, including but not
limited to former employees, business and personal references, government
agencies and credit/inspection bureaus to verify its history and credentials and
to obtain other data that may help to analyze its qualifications. The Advisor
hereby releases the Company, and its officers, directors, agents, attorneys, and
employees from all liability, causes of action, claims or demands, which may
result from this authorization to investigate its background and qualifications.
12. Termination. This Agreement may be terminated at any time, with or
without cause, by either party giving the other party written notice thereof.
13. Obligations on Termination. Upon the termination of this Agreement for
any reason, the Advisor shall cooperate with the Company to settle all
outstanding accounts, immediately pay in cash any and all existing indebtedness
owed to the Company and immediately deliver to the Company any and all
previously furnished materials, supplies, advertising and other printed matter
that mentions the Company by name, rate books, and all other supplies connected
with the Company's business. Any obligation under this Agreement to pay
Compensation or Variable Commissions after the termination of this Agreement may
be, at the Company's option, discharged by the Company by payment of the
commuted value of such future Compensation or Variable Commissions. Such
commuted value shall be equivalent to the present value of such Compensation or
Variable Commissions at the time of payment, calculated by the Company on the
basis of reasonable premium payments, mortality, lapse and interest rates, as
determined by the Company in its sole discretion.
14. Securities. Any Product issued by the Company that is deemed a
security subject to regulation by the Securities and Exchange Commission may not
be sold jointly with any individual, agency or firm unless such individual,
agency or firm either is registered with the National Association of Securities
Dealers or is an associated person of an individual or Entity so registered and
holds a valid registered representative agreement with WSS or another
broker/dealer with whom the Company has a written selling agreement. Any joint
Products must be specified as such at the time the application is delivered to
the Company.
15. Modification of Contracts; Compliance with Law. The Advisor shall have
no power with respect to any contract or agreement to which the Company is a
party, to make, alter or discharge such contract or agreement, or to waive any
forfeiture or the performance of any of the terms or conditions of such contract
or agreement. The Advisor shall comply with all laws and regulations from time
to time in effect relating to the business of insurance.
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16. Privacy. (a) The Advisor shall treat all nonpublic personal
information received by it from the Company or from individuals who are
applicants for, owners of or eligible for benefits from Products ("Customer
Information") as confidential information in accordance with applicable laws,
including but not limited to federal and state consumer privacy laws and
regulations designed to ensure the confidentiality, security and integrity of
such information. Customer Information may include, but is not limited to, the
name, address, telephone number, e-mail address, social security number and
policy or contract numbers of a consumer or customer, as well as financial and
health information related to the consumer or customer. Customer Information
also includes any customer list or similar compilation derived from Customer
Information. The Advisor shall use Customer Information only in connection with
the solicitation of applications for Products or the provision of services with
respect to Products offered by the Company, or as otherwise permitted by
applicable laws. The Advisor shall not have the right to use or disclose
Customer Information except as necessary to process transactions requested by
the consumer or customer; at the direction of the Company; or to the extent
permitted by applicable laws and regulations. The Advisor shall take such steps
as are necessary to ensure the security and integrity of Customer Information in
its possession.
(b) To the extent that the Advisor receives, creates, has access to
or uses protected health information regarding individuals who are applicants
for, owners of or eligible for benefits under certain health insurance Products
and optional riders offered by or through the Company, MetLife or any of their
respective Affiliates (collectively, "PHI" as hereafter more specifically
defined), in accordance with the requirements of the federal Health Insurance
Portability and Accountability Act of 1996 and related regulations ("HIPAA"), as
may be amended from time to time, the Advisor agrees:
(i) Not to use or disclose PHI except (A) to perform
functions, activities or services for, or on behalf of, the Company as specified
in this Agreement and consistent with applicable laws, or (B) to the extent that
such use or disclosure is required by law. Any such use or disclosure shall be
limited to that required to perform such services or to that required by
relevant law.
(ii) To use appropriate safeguards to prevent use or
disclosure of PHI other than as permitted by this Agreement.
(iii) To promptly report to the Company any use or disclosure
of PHI not permitted by this Agreement of which it becomes aware and to mitigate
any harmful effect of any use or disclosure that is made by it in violation of
the requirements of this Agreement.
(iv) To ensure that any third party with whom the Advisor
contracts or who is hired by the Advisor and who may, under that arrangement,
receive or have access to PHI agrees to the same restrictions and conditions
that apply to the Advisor with respect to PHI under this Agreement.
8
(v) Within 15 days of the Company's request, to provide the
Company with any PHI or information relating to PHI as deemed necessary by the
Company to provide individuals with access to, amendment of and an accounting of
disclosures of their PHI.
(vi) To make its records relating to its use or disclosure of
PHI available to the Secretary of the United States Department of Health and
Human Services at his/her request to determine the Company's compliance with
HIPAA.
(vii) Upon termination of this Agreement, and in accordance
with the Company's wishes, either to return or to destroy all PHI it maintains
in any form, and retain no copies. If the Company agrees that such return or
destruction is not feasible, the Advisor shall extend the protections set forth
in this Section to the PHI beyond the termination of this Agreement, in which
case any further use or disclosure of the PHI will be solely for the purposes
that make return or destruction infeasible. Destruction without retention of
copies is deemed "infeasible" if prohibited by the terms of this Agreement or by
applicable law or regulation, including record retention requirements of various
state insurance laws.
For these purposes, PHI means individually identifiable information that is
transmitted or maintained in any medium and relates to the past, present or
future physical or mental health or condition of an individual; the provision of
health care to an individual; or future payment for the provision of health care
to the individual. PHI includes demographic information about individuals,
including names; addresses; dates directly related to an individual, including
but not limited to birth date; telephone numbers; fax numbers; E-mail addresses;
Social Security numbers; policy numbers; medical record numbers; account
numbers; and any other unique identifying number, characteristic or code. PHI
includes, but is not limited to, information provided by an individual on an
application for a MetLife long term care insurance policy or other health care
plan; information related to the declination or issuance of, or claim under, a
MetLife long term care insurance policy; or information derived therefrom.
The Advisor's breach of any of these provisions shall constitute a material
breach of this Agreement and provide grounds for immediate termination of this
Agreement by the Company, notwithstanding any other provisions of this
Agreement. The provisions in this Section 16 will survive the termination of
this Agreement.
17. Minimum Production Standards. The Advisor hereby acknowledges and
agrees that the Company, in its sole discretion, may from time to time establish
minimum production requirements for the sale of Products that the Advisor must
meet during stated time periods in order to maintain its ability to sell
Products under the terms of this Agreement.
18. Payment of Compensation and Variable Commissions. The parties hereto
acknowledge and agree that in the event that the Company determines, in its
discretion, that the Advisor is in material violation of any of the provisions
of this Agreement, or if
9
the Company receives an order, decree or other notice from any court, Department
of Insurance or other lawful authority that Compensation or Variable Commissions
are not to be paid or should not be paid to the Advisor or Variable Commission
Individual, as applicable, for any reason whatsoever, or if the Company, in its
discretion, determines that there is a material issue regarding the
appropriateness of paying Compensation or Variable Commissions to the Advisor or
Variable Commission Individual, as applicable, from the sale of Products, then
the Company shall have the right to hold in abeyance any applicable Compensation
or Variable Commissions until such time as a final determination has been made,
to the Company's reasonable satisfaction, as to the status and appropriateness
of paying such Compensation or Variable Commissions.
19. Miscellaneous.
(a) Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, successors and permitted
assigns. The Advisor may not assign its rights or delegate its duties under this
Agreement either in whole or in part without the prior written consent of the
Company. Any attempted assignment or delegation without such consent will be
void.
(b) Equitable Remedies. The Company will have the right to enforce
this Agreement and any of its provisions by injunction, specific performance or
other equitable relief without prejudice to any other rights and remedies that
it may have for a breach of this Agreement.
(c) Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Missouri excluding that body of law
pertaining to conflict of laws.
(d) Notices. Any notice or consent required by this Agreement shall
be in writing and either (i) personally delivered, (ii) mailed by certified or
registered mail, postage-prepaid, return receipt requested, or (iii) sent by
telefacsimile transmission and followed by delivery via U.S. mail, to such party
at the address and facsimile number specified on the signature page or to such
other address and/or facsimile number as such party may designate by notice
given in accordance herewith. Such notices or consents shall be deemed duly
given upon the earlier of (i) actual receipt and written acknowledgement thereof
by the receiving party, (ii) deposit in the United States mail as hereinbefore
set forth, or (iii) electronic confirmation of transmission by telefacsimile.
(e) Complete Understanding; Modification; Binding Effect. This
Agreement, together with any exhibits and schedules hereto, constitutes the
complete and exclusive understanding and agreement of the parties and supersedes
all prior understandings and agreements, whether written or oral, with respect
to the subject matter hereof. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by
the parties hereto. This Agreement is binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
10
(f) Jurisdiction and Venue. Any suit or legal proceeding with
respect to the Agreement shall be brought in the Circuit Courts of St. Louis
City or County, Missouri or the United States District Court for the Eastern
District of Missouri.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument. A signature
transmitted by telefacsimile or similar equipment shall be deemed an original
signature.
(h) Severability. In the event any provision of this Agreement shall
be found invalid, void and/or unenforceable, for any reason, neither this
Agreement generally nor the remainder of this Agreement shall thereby be
rendered invalid, void and/or unenforceable, but instead each such provision,
and (if necessary) other provisions hereof, shall be reformed by a court of
competent jurisdiction so as to effect, insofar as is practicable, the intention
of the parties as set forth in this Agreement; provided, however, that if such
court is unable or unwilling to effect such reformation, the remainder of this
Agreement shall be construed and given effect as if such invalid, void and/or
unenforceable provisions had not been a part hereof.
(i) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver of consent shall be deemed to be or shall constitute
a waiver of consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(j) Headings. The description headings used in this Agreement are
inserted for convenience of reference only and do not and shall not be deemed to
modify the construction of any of the provisions of this Agreement.
(k) Gender and Number. Unless the context otherwise requires, any
pronouns whenever used herein shall include the corresponding masculine,
feminine or neuter pronouns and the plural shall include the singular and vice
versa.
(l) Arbitration. Except with respect to any actions seeking
injunctive relief or a restraining order, all disputes arising out of or
resulting from this Agreement shall be finally determined by binding arbitration
in St. Louis, Missouri, in accordance with the commercial rules of arbitration
of the American Arbitration Association. The arbitration shall be carried out by
one or more arbitrators in accordance with said rules. Any award shall be
enforceable in any court of competent jurisdiction in the same manner as
judgments. This agreement to arbitrate shall survive any termination of this
Agreement.
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(m) Affiliates; Control. As used in this Agreement, "Affiliate" of
an Entity means any person or Entity which directly or indirectly through one or
more intermediaries Controls, is Controlled by, or is under common Control with
the specified Entity. "Control" means the ownership of a majority of the equity
or the ability to appoint or elect a majority of the board of directors or
similar governing body (by reason of equity ownership, contract or otherwise) of
an Entity.
[THE REST OF THIS PAGE LEFT INTENTIONALLY BLANK]
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The undersigned hereby acknowledges and agrees that by its signature below it is
acknowledging that it has reviewed and has had the opportunity to consult with
counsel and is agreeing to be bound by and be subject to all the terms and
conditions of the Advisor Agreement designated as the Series 2002 ADV Contract,
as of this _____ day of _______________, 20___. Please complete each line in the
applicable section below in the capacity indicated.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
COMPANY: ADVISOR:
GENERAL AMERICAN LIFE INSURANCE [ ]
COMPANY -------------------
By: By:
----------------------------- -------------------------------
Name: Name:
-------------------------- ----------------------------
Title: Title:
------------------------- ---------------------------
Address: Address:
000 Xxxxxx Xxxxxx
----------------------------------
Xx. Xxxxx, Xxxxxxxx 00000
----------------------------------
Facsimile #: (314) Facsimile #:
------------- ---------------------
General American
Code #:
---------------------------
Social Security #
Or Taxpayer ID #:
(as applicable) -----------------
THE FOLLOWING APPLIES ONLY TO ADVISORS THAT ARE NOT INDIVIDUALS. ADVISORS WHO
ARE INDIVIDUALS SHOULD DISREGARD.
A. The Advisor hereby designates the person whose name appears on the signature
page hereto as the Variable Commission Individual (as defined in Section 1(b) of
the Agreement).
The Variable Commission Individual by his or her signature hereto hereby agrees
that he or she must be and remain a Variable Commission Individual (as defined
in Section 1(b) of the Agreement) to be entitled to receive Variable Commissions
hereunder and further acknowledges and agrees that the Company has a right of
offset against the Variable Commissions otherwise due to him or her in
accordance with the terms of Section 6 of the Agreement.
B. The Advisor hereby designates the person(s) whose name(s) appear on the
signature page hereto as its Individual Designee(s) (as defined in Section 1(e)
of the Agreement).
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Each Individual Designee by his or her signature hereto,
hereby agrees to be bound by all the provisions of this Agreement and hereby
personally, unconditionally, absolutely and irrevocably guarantees all
obligations of the Advisor under this Agreement, including but not limited to,
any and all obligations for any indebtedness of the Advisor to the Company. This
is a guaranty of payment and performance and not of collection. The liability of
each Individual Designee hereunder shall be direct and immediate and not
conditional or contingent upon the pursuit of remedies against any other
Individual Designee, person or Entity. Each Individual Designee acknowledges and
agrees that as a condition to the Company entering into this Agreement, it has
required such Individual Designee to guarantee to the Company payment and
performance of all obligations of the Advisor under the Agreement. Each
Individual Designee further acknowledges and agrees that the Advisor's entering
into this Agreement is of substantial benefit to such Individual Designee. Each
Individual Designee hereby waives demand, presentment for payment and notice of
nonpayment of any of the Advisor's obligations under the Agreement.
VARIABLE COMMISSION INDIVIDUAL: INDIVIDUAL DESIGNEE:
------------------------------- ---------------------------------
Name: Name:
-------------------------- ----------------------------
Address: Address:
------------------------------- ---------------------------------
------------------------------- ---------------------------------
Facsimile #: Facsimile #:
------------------ --------------------
---------------------------------
Name:
----------------------------
Address:
---------------------------------
---------------------------------
Facsimile #:
--------------------
By its signature below, the Managing Partner (and, if applicable, the Associate
Partner) who recommended the Advisor hereby acknowledges that it (or they)
recommended such Advisor to the Company. By its signature below, the Managing
Partner (and, if applicable, the Associate Partner) further acknowledges that
pursuant to the terms of the Agreement it (or they) is (or are) responsible for
all the acts and failures to act of the Advisor under the Agreement and is (or
are) further responsible for all the obligations of the Advisor thereunder
including but not limited to, any and all obligations for any indebtedness of
the Advisor to the Company.
ASSOCIATE PARTNER: MANAGING PARTNER:
By: By:
------------------------------- -------------------------------
Name: Name:
---------------------------- ----------------------------
Title (if applicable): Title (if applicable):
------------ ------------
14
