STRATEGIC ALLIANCE AGREEMENT
by and among
JEFFERSON NATIONAL LIFE INSURANCE COMPANY
JEFFERSON NATIONAL SECURITIES CORPORATION
JEFFERSON NATIONAL FINANCIAL CORP.
and
PHOENIX LIFE INSURANCE COMPANY
PHL VARIABLE INSURANCE COMPANY
PHOENIX EQUITY PLANNING CORPORATION
Dated October 8, 2007
STRATEGIC ALLIANCE AGREEMENT............................................... 7
WITNESSETH................................................................. 7
Article I Design and Registration of the Phoenix Contract.................. 8
Section 1.1 Phoenix Contract Name..................................... 8
Section 1.2 Phoenix Contract Logo..................................... 8
Section 1.3 General Design of Phoenix Contract........................ 8
Section 1.4 Separate Account Establishment............................ 9
Section 1.5 Registration of the Phoenix Contract...................... 9
Section 1.6 Regulatory Filings........................................ 9
Section 1.7 Administration............................................ 9
Section 1.8 Insurance Filings......................................... 9
Section 1.9 Information to be Provided by Jefferson National.......... 10
Section 1.10 Participation Agreements.................................. 10
Section 1.11 Fees and Expenses Relating to the Phoenix Contract........ 10
Section 1.12 Expenses.................................................. 10
Article II Distribution and Sale of Phoenix Contract....................... 11
Section 2.1 Principal Underwriter..................................... 11
Section 2.2 Marketing Plan............................................ 11
Section 2.3 Review of Jefferson National Marketing Materials.......... 11
Section 2.4 Broker Support Obligation................................. 12
Section 2.5 Negotiating Selling Agreements............................ 12
Article III Administrative and Website Services............................ 12
Section 3.1 Product Web Site Development.............................. 12
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Section 3.2 Customer Service Representative Application............... 12
Section 3.3 Recordkeeping Services and Administration................. 13
Section 3.4 Processing Applications, Account Maintenance Forms and
Transactions.............................................. 13
Section 3.5 Jefferson National and JNSC Compliance Responsibilities... 14
Section 3.6 Problem Notification and Resolution....................... 14
Section 3.7 Data Feeds................................................ 14
Section 3.8 Disaster Recovery Plan.................................... 15
Section 3.9 AML Compliance............................................ 15
Section 3.10 Certifications............................................ 15
Section 3.11 Rule 38a-1................................................ 15
Section 3.12 Regulation S-P............................................ 16
Section 3.13 Late Trading.............................................. 16
Section 3.14 Market Timing............................................. 16
Section 3.15 Limitation on Administration of PLIC Contracts............ 16
Section 3.16 Bank Accounts............................................. 16
Section 3.17 Access.................................................... 17
Article IV Representations, Warranties and Covenants of PLIC, PHLVIC and
PEPCO.................................................................... 17
Section 4.1 Conformity with Organizational Documents and Applicable
Laws...................................................... 17
Section 4.2 Right, Power, and Authority............................... 18
Section 4.3 Appropriate Registration and Qualification................ 18
Section 4.4 PEPCO's Actions as Principal Underwriter of the Phoenix
Contracts................................................. 18
Section 4.5 No Conflicts.............................................. 19
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Section 4.6 Continuing Disclosure Obligation.......................... 19
Section 4.7 Ratings................................................... 19
Section 4.8 Phoenix Product Restriction............................... 19
Article V Representations, Warranties and Covenants of Jefferson National.. 19
Section 5.1 Conformity with Organizational Documents and Applicable
Laws...................................................... 19
Section 5.2 Right, Power, and Authority............................... 20
Section 5.3 Appropriate Registration and Qualification................ 20
Section 5.4 Tax Qualification......................................... 20
Section 5.5 Registration and Regulation Under the Federal Securities
Laws...................................................... 21
Section 5.6 Amendments to Phoenix Contract Materials.................. 21
Section 5.7 Separate Account Compliance Procedures.................... 21
Section 5.8 Compliance With Applicable Laws and Regulations........... 22
Section 5.9 No Conflicts.............................................. 22
Section 5.10 Continuing Disclosure Obligation.......................... 22
Section 5.11 Jefferson National Restriction............................ 23
Article VI Use of Marks, Co-Branding and Marketing Materials............... 23
Section 6.1 Use of Phoenix Marks...................................... 23
Section 6.2 Limitation on Use of PLIC and PHLVIC Names................ 24
Section 6.3 Clearance of Third Party Intellectual Property Rights..... 24
Section 6.4 Website Development and Maintenance....................... 24
Section 6.5 License of Patent Rights and Technology................... 25
Section 6.6 Post Termination License.................................. 26
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Article VII Additional Reinsurance Agreement and Recapture Events Under
the Phoenix Reinsurance Agreement....................................... 26
Section 7.1 JNL Reinsurance Agreement............................... 26
Section 7.2 Recapture under the Phoenix Reinsurance Agreement....... 27
Article VIII Indemnity 28
Section 8.1 Jefferson National, JNSC and JNFC Indemnity to PLIC and
PHLVIC and Affiliates................................... 28
Section 8.2 PLIC and PHLVIC Indemnity to Jefferson National, JNSC
and Affiliates.......................................... 30
Section 8.3 Limitation of Liability................................. 32
Article IX Term........................................................... 32
Section 9.1 Effective Date.......................................... 32
Section 9.2 Termination............................................. 32
Section 9.3 Jefferson National Purchase Right....................... 32
Section 9.4 Phoenix Material Adverse Effect......................... 33
Section 9.5 Survival of Provisions.................................. 33
Article X Miscellaneous................................................... 34
Section 10.1 Confidentiality......................................... 34
Section 10.2 Relationship of Parties................................. 35
Section 10.3 Agreement Not Assignable................................ 35
Section 10.4 Use of Third Party Service Providers.................... 35
Section 10.5 Waiver and Amendment.................................... 36
Section 10.6 Governing Law........................................... 36
Section 10.7 Entire Agreement and Severability....................... 36
Section 10.8 Notice.................................................. 36
Section 10.9 Certain Definitions..................................... 37
Section 10.10 Execution and Counterparts.............................. 37
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Section 10.11 Captions................................................. 37
Section 10.12 Submission to Jurisdiction............................... 37
Section 10.13 Force Majeure............................................ 38
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STRATEGIC ALLIANCE AGREEMENT
This STRATEGIC ALLIANCE AGREEMENT (hereinafter, the "Agreement'), is entered
into as of this 8th day of October, 2007, by and between Phoenix Life Insurance
Company ("PLIC"), PHL Variable Insurance Company ("PHLVIC"), Phoenix Equity
Planning Corporation ("PEPCO"), Jefferson National Life Insurance Company
("Jefferson National"), Jefferson National Securities Corporation ("JNSC"), and
Jefferson National Financial Corp. ("JNFC", and together with PLIC, PHLVIC,
PEPCO, and Jefferson National and JNSC the "Parties," and each individually, a
"Party"). For purposes of this Agreement, an "Affiliate" of a person shall mean
any person who controls, is controlled by or is under common control with such
other person within the meaning of Section 15 of the Securities Act of 1933
(the "1933 Act").
WITNESSETH
WHEREAS, Jefferson National is a stock life insurance company organized
under the laws of the state of Texas that is principally engaged in the life
insurance business in 49 states and the District of Columbia;
WHEREAS, JNSC is an affiliate of Jefferson National that is a broker-dealer
registered with the Securities and Exchange Commission (the "SEC") under
Section 15 of the Securities Act of 1934 (the "1934 Act") and a member of the
Financial Industry Regulatory Authority ("FINRA");
WHEREAS, JNFC is the holding company of Jefferson National and JNSC;
WHEREAS, PLIC is a New York-domiciled stock life insurance company that is
licensed to sell life insurance policies and annuity contracts in 50 states and
the District of Columbia through its affiliated distribution companies and
through brokers;
WHEREAS, PHLVIC is an affiliate of PLIC that is a Connecticut-domiciled
stock life insurance company that sells life insurance policies and annuity
contracts in 48 states (not in the States of New York and Maine) and the
District of Columbia through its affiliated distribution companies and through
brokers;
WHEREAS, PEPCO is an affiliate of PLIC and PHLVIC that is a broker-dealer
registered with the SEC under Section 15 of the 1934 Act and a member of FINRA;
WHEREAS, Jefferson National currently issues a variable annuity contract
known as the "Monument Advisor Variable Annuity Contract" (referred to
hereinafter as the "Monument Advisor Contract") funded through a segregated
asset account of Jefferson National known as "Jefferson National Life Annuity
Account G" ("Separate Account G") created under the insurance laws of Texas and
registered with the SEC as a unit investment trust under the Investment Company
Act of 1940 (the "1940 Act");
WHEREAS, PLIC and PHLVIC each desires to develop a variable annuity contract
(the "PLIC Contract" and the "PHLVIC Contract," respectively, and collectively,
the "Phoenix
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Contract") that will be based on the Monument Advisor Contract but will include
certain changes and additions, including a Guaranteed Minimum Withdrawal
Benefit ("GMWB") that the Parties will use their commercially reasonable
efforts to make available at launch;
WHEREAS, Jefferson National will provide certain assistance to PLIC and
PHLVIC in designing the Phoenix Contract in accordance with the terms and
provisions of this Agreement;
WHEREAS, PEPCO will serve as the principal underwriter for the distribution
of the Phoenix Contract;
WHEREAS, Jefferson National or an Affiliate will administer the Phoenix
Contract;
WHEREAS, PHLVIC and Jefferson National will enter into a modified
coinsurance arrangement whereby Jefferson National will coinsure the PHLVIC
Contracts and, under certain circumstances, PHLVIC and Jefferson National will
enter into a separate modified coinsurance arrangement whereby PHLVIC will
coinsure certain Monument Advisor Contracts; and
WHEREAS, the Parties desire to establish hereunder their mutual agreement as
to their respective roles, obligations and rights with respect to the foregoing;
NOW, THEREFORE, in consideration of the mutual undertakings contained in
this Agreement and for other good and valuable consideration, the Parties agree
as follows:
Article I
Design and Registration of the Phoenix Contract
Section 1.1 Phoenix Contract Name. The Parties intend that the Phoenix
Contract shall be marketed in accordance with the terms and provisions of this
Agreement bearing a brand name to be developed by PLIC and PHLVIC. The Parties
will mutually agree to a brand name for the Phoenix Contract within thirty
(30) days of the date hereof; provided, however, that PLIC and PHLVIC shall
have the right, subject to the prior approval of Jefferson National within ten
business days, such approval not to be unreasonably withheld, to use a
different initial brand name for the Phoenix Contract, or to change the brand
name of the Phoenix Contract at any time thereafter. The Parties acknowledge
that, as between the Parties, (i) Jefferson National shall retain sole
ownership of the name "Monument Advisor," and (ii) PLIC and PHLVIC shall retain
sole ownership of the brand name developed for the Phoenix Contract.
Section 1.2 Phoenix Contract Logo. The Parties agree that PLIC and PHLVIC
may create a logo for the Phoenix Contract, subject to the prior approval of
Jefferson National within ten business days, such approval not to be
unreasonably withheld, to be used in connection with the marketing and
distribution of the Phoenix Contract. PLIC and PHLVIC shall retain the sole
ownership of the Phoenix Contract logo.
Section 1.3 General Design of Phoenix Contract
(a) PLIC and PHLVIC will design the Phoenix Contract based on the
Monument Advisor Contract. PLIC and PHLVIC will design the Phoenix Contract
to include the standard features of a variable annuity contract, including
an accumulation phase,
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annuitization phase, and a death benefit equal to account value. In
addition, the Phoenix Contract will provide a GMWB rider for a separate
charge. The Parties will use commercially reasonable efforts to offer the
GMWB at launch.
(b) The Phoenix Contract will initially offer as investment options those
portfolios (the "Portfolios") of mutual funds (the "Underlying Funds") that
are mutually agreed upon by the Parties. The initial Phoenix Contract
design, Portfolios and Underlying Funds will be mutually agreed upon within
forty five days of the date of this Agreement.
(c) Neither PLIC nor PHLVIC will add, remove or modify any Portfolios, or
Underlying Funds without the consent of Jefferson National, which consent
shall not be unreasonably withheld.
(d) The Parties currently anticipate that the initial pricing structure
of the Phoenix Contract will be the same as that of the Monument Advisor
Contract, with the exception of an additional charge for the GMWB; provided,
however, that PLIC and PHLVIC shall have the right, subject to prior
approval by Jefferson National, such approval not to be unreasonably
withheld, to (i) establish a different initial pricing structure for the
Phoenix Contract (including differing versions of the Phoenix Contract if
PLIC and PHLVIC develop differing versions), or (ii) change the pricing
structure of the Phoenix Contract (including differing versions thereof) at
any time thereafter, subject to the terms and provisions of the Phoenix
Contract and any necessary State approval.
Section 1.4 Separate Account Establishment. PLIC and PHLVIC shall establish
separate segregated asset accounts or "separate accounts" (the "Accounts")
pursuant to Applicable Law through which the Phoenix Contract will be funded.
Section 1.5 Registration of the Phoenix Contract. PLIC and PHLVIC shall each
file a registration statement on Form N-4 under the 1933 Act and the 1940 Act
to register the Phoenix Contracts in accordance with the requirements of those
Acts. PLIC and PHLVIC acknowledge that time is of the essence in this endeavor,
and agree to take reasonable steps to file the Form N-4 registration statements
by November 1, 2007.
Section 1.6 Regulatory Filings. PLIC and PHLVIC shall have sole
responsibility for preparing, filing, obtaining necessary approvals of, and
maintaining and updating all disclosure documents and reports required under
applicable Federal and State laws and regulations, except for the filing of
marketing materials with FINRA pursuant to Section 2.3.
Section 1.7 Administration. Jefferson National and/or its Affiliates shall
provide the administrative services in connection with the Phoenix Contract
specified in Article III of this Agreement.
Section 1.8 Insurance Filings. As well as registering the Phoenix Contracts
with the SEC, PLIC and PHLVIC collectively shall file the Phoenix Contracts
with the insurance departments of the fifty States of the United States. PLIC
and PHLVIC acknowledge that time is of the essence in this endeavor, and agree
to take reasonable steps to file the various policy forms in the states that do
not require domiciliary state approval by November 1, 2007.
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Section 1.9 Information to be Provided by Jefferson National. In order to
facilitate PLIC and PHLVIC's duties under this Article I, upon reasonable
request, Jefferson National shall provide PLIC and PHLVIC with policy forms,
contracts, state and federal filings, marketing and sales materials, and
similar forms and documents relating to the Monument Advisor Contract.
Jefferson National personnel shall also provide reasonable assistance as
necessary to facilitate the design, registration, and filing of the Phoenix
Contracts.
Section 1.10 Participation Agreements. Jefferson National shall use its best
efforts to aid PLIC and PHLVIC in negotiating participation agreements with the
same Underlying Funds with which Jefferson National has negotiated
participation agreements in connection with the Monument Advisor Contract. Upon
reasonable request, Jefferson National shall provide PLIC and PHLVIC with the
forms of its agreements with such Underlying Funds, and any other information
relating to such Underlying Funds, to the extent it can do so under its
agreements with such Underlying Funds and under Applicable Law. Notwithstanding
the foregoing or any other provision of this Agreement, Jefferson National and
JNSC acknowledge and agree that any arrangements into which PLIC or PHLVIC may
enter with any Underlying Fund relating to the provision of administrative,
distribution or other types of services, including any fees, expenses, or other
types of payments that may be associated with such arrangements, may differ in
any respect from any arrangements into which Jefferson National or JNSC may
have entered, or will enter, with any Underlying Fund.
Section 1.11 Fees and Expenses Relating to the Phoenix Contract.
(a) In connection with the services to be provided by Jefferson National
under this Agreement for the PLIC Contracts, PLIC shall pay to Jefferson
National with respect to such contracts a fee consisting of the following
components:
(i) Upon issuance of a PLIC Contract, a one time licensing fee of
$2,800 to license the intellectual property and other rights described
in Section 6.5 below; and
(ii) A one time fee of $16 per issuance of a new PLIC Contract and a
quarterly administrative fee of $8 each quarter per PLIC Contract that
is in force and administered by Jefferson National.
(b) In connection with the services to be provided by Jefferson National
under this Agreement for the PHLVIC Contracts, PHLVIC will pay to Jefferson
National with respect to such contracts an expense allowance pursuant to
Article III of the Reinsurance Agreement between PHLVIC and Jefferson
National effective upon the first issuance of a PHLVIC Contract (the
"Phoenix Reinsurance Agreement"), a copy of which is attached hereto as
Exhibit A. For the avoidance of doubt, such administrative expense allowance
shall not be payable by PHLVIC under this Agreement.
Section 1.12 Expenses. Regardless of whether any or all of the transactions
contemplated by this Agreement are consummated, and except as otherwise
expressly provided herein, PLIC, PHLVIC and PEPCO, on the one hand, and
Jefferson National, JNFC and JNSC, on the other hand, shall each bear their
respective direct and indirect expenses incurred in
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connection with the negotiation and preparation of this Agreement, the
Ancillary Agreements and the consummation of the transactions contemplated
hereby and thereby.
Article II
Distribution and Sale of Phoenix Contract
Section 2.1 Principal Underwriter. PEPCO shall act as the principal
underwriter for the Phoenix Contracts and, subject to Section 2.5, shall be
responsible for executing selling agreements for the distribution of the
Phoenix Contracts.
Section 2.2 Marketing Plan.
(a) The Parties agree to use their best efforts to develop a mutually
agreeable marketing plan (the "Marketing Plan") within sixty days of the
date of this Agreement. In furtherance of the development of such Marketing
Plan and in no way in limitation thereof, the Parties acknowledge that their
expectation as of the date of this Agreement is that Jefferson National and
JNSC will have primary responsibility for marketing the Phoenix Contracts
and will use commercially reasonable efforts to market the Phoenix Contract
through their customary distribution methods (including, without limitation,
production of sales literature and marketing and offering materials
(including the marketing sections of the Website) (collectively, the
"Jefferson National Marketing Materials")) to appropriate parties. The
Marketing Plan shall contain a detailed listing of the respective
responsibilities of each of the Parties relating to the marketing and
distribution of the Phoenix Contract. Each Party shall initiate, fund and
manage their respective efforts in accordance with the Marketing Plan.
Attached hereto as Schedule 2.2(a) is a list of distribution firms through
which Jefferson National and JNSC will market the Phoenix Contracts. PHLVIC,
PLIC, Jefferson National and JNSC agree that it will not market the Phoenix
Contracts to distribution firms not on such list, as such list may be
mutually amended from time to time.
(b) The Parties agree that the Marketing Plan may be revised from time to
time in a mutually agreeable fashion.
Section 2.3 Review of Jefferson National Marketing Materials. Jefferson
National and JNSC agree to produce Jefferson National Marketing Materials and
to conduct any appropriate legal and compliance review of all Jefferson
National Marketing Materials in advance of forwarding such materials to PLIC
and/or PHLVIC (as the case may be) for final review. PLIC and PHLVIC agree to
review any such Jefferson National Marketing Materials expeditiously upon
receipt and to provide prompt (but, in any event, within ten business days)
notification to Jefferson National and JNSC as to whether they will permit such
materials to be used to market the Phoenix Contracts. If PLIC or PHLVIC, as
applicable, does not respond within ten business days, such Jefferson National
Marketing Materials shall be deemed approved by PLIC or PHLVIC, as applicable.
Any Jefferson National Marketing Materials approved by PLIC and PHLVIC in the
manner described in this Section 2.3 shall be filed expeditiously by Jefferson
National and JNSC with the Advertising Review Department of FINRA and
thereafter Jefferson National and JNSC may use such materials to market the
Phoenix Contracts as permitted by Applicable Laws. Upon receipt of an invoice
from JNSC, PLIC and PHLVIC shall promptly reimburse JNSC for the filing fees
incurred by JNSC in connection with such Jefferson National Marketing Materials.
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Section 2.4 Broker Support Obligation. Jefferson National and JNSC shall
have the responsibility for providing support services to the distribution
firms included on the distribution list as described in Section 2.2(a) of this
Agreement; provided, however, that Jefferson National shall be permitted, after
providing written notice to PEPCO, to coordinate with one or more registered
representatives of PEPCO who specialize in providing "wholesaling" services, to
request such registered representatives to assist Jefferson National and JNSC
in their marketing efforts in the areas and with the distribution firms
selected by Jefferson National and JNSC with respect to the Phoenix Contracts.
In connection with such wholesaling services, Jefferson National (or an
Affiliate), shall pay PEPCO a one-time fee equal to 0.06% of each annuity
purchase payment made with respect to each Phoenix Contract sold as a result of
such marketing efforts of PEPCO's wholesalers (the "Wholesaler Fee"). Such fee
shall be paid within thirty days of the end of each calendar quarter for a
period of 18 months from the later of January 1, 2008 or the effective date of
the registration statements for the Phoenix Contracts under the Applicable Law
and after such 18-month period, fees will be renegotiated by the Parties hereto
in good faith. PLIC and PHLVIC shall deliver or cause to be delivered to
Jefferson National updated electronic files containing information necessary
for Jefferson National to provide customer services described in Article III of
this Agreement, including, without limitation, representative identification
numbers, branch numbers and dealer numbers, or any other information Jefferson
National may reasonably request to provide such services.
Section 2.5 Negotiating Selling Agreements. Jefferson National shall assist
PEPCO in negotiating selling agreements for the Phoenix Contracts with the
distribution firms included on the distribution list as described in
Section 2.2(a) of this Agreement. In addition, Jefferson National shall provide
PEPCO with information regarding Jefferson National's agreements with
registered investment advisers, the clients of which have purchased a Monument
Advisor Contract. In furtherance of the foregoing, and not by way of
limitation, upon reasonable request, Jefferson National shall provide PEPCO
with the forms of its agreements with such registered investment advisers, to
the extent it is permitted to do so consistent with the terms of such agreements
Article III
Administrative and Website Services
Section 3.1 Product Web Site Development. Jefferson National shall develop
and implement, with PLIC and PHLVIC's joint assistance as set forth in
Section 6.4(d), a customer and partner web site for the offering and
maintenance of the Phoenix Contract.
Section 3.2 Customer Service Representative Application. Jefferson National
shall develop, host, implement, and maintain a web-based customer service
representative application ("CSR Application"), consistent in all material
respects to the customer service representative application Jefferson National
hosts currently with respect to the Monument Advisor Contracts. Jefferson
National shall provide a weekly feed of Phoenix Contract owner account
information to PLIC and PHLVIC in accordance with Section 3.7(a).
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Section 3.3 Recordkeeping Services and Administration.
(a) Subject to Section 3.15 hereof, PLIC and PHLVIC authorize Jefferson
National to provide all recordkeeping and administration services for the
Phoenix Contract and the contract owner accounts related thereto, including
recordkeeping for all contract owners and for all account transactions
received by Jefferson National, as further described in Section 3.4 below
(collectively, "Recordkeeping Services"). Jefferson National shall provide
the services under this Agreement (a) at a level of accuracy and
responsiveness not less favorable than the practices of Jefferson National
in administering its own comparable products during the term of this
Agreement, (b) in accordance with the terms of the Phoenix Contracts and all
Applicable Laws, (c) in accordance with the compliance policies and
procedures to be adopted by Jefferson National and PLIC and PHLVIC pursuant
to Rule 38a-1 under the 1940 Act, which compliance policies and procedures
are contemplated by the Parties to be substantially similar, with any
changes to be mutually agreed upon, to the Rule 38a-1 policies and
procedures adopted by Jefferson National as of September 28, 2006, and
(d) as otherwise specified herein or as the parties may agree in writing
from time to time. Jefferson National agrees to notify PLIC and PHLVIC if
and when it materially amends its Rule 38a-1 policies and procedures. In
furtherance of its Recordkeeping Services, Jefferson National shall prepare,
if applicable, and distribute to each contract holder, any and all
disclosure documents, Contract Owner reports, and other written
communications required under Applicable Law. Notwithstanding the foregoing
sentence, the Parties acknowledge that PLIC and PHLVIC are responsible for
the preparation and amendment of the Phoenix Contract registration
statements and policy forms, and the various underlying fund partners are
responsible for preparing all disclosure documents relating to the
underlying funds. To the extent required by Section 31 of the 1940 Act, and
the rules adopted thereunder, Jefferson National agrees that all records
prepared or maintained by Jefferson National relating to the services to be
provided by Jefferson National under the Agreement are the property of PLIC
or PHLVIC, as the case may be, on behalf of the Accounts, and will be
preserved, maintained and made available in accordance with such Section 31
and the rules thereunder, and will be surrendered promptly to PLIC or
PHLVIC, as applicable, on and in accordance with its request. Furthermore,
Jefferson National will prepare the financial statements for the Accounts in
the same manner it currently does for its own separate accounts. For
purposes of this Agreement, the administrative services to be provided by
Jefferson National shall include all administrative services for the GMWB
rider to the Phoenix Contracts; provided that PHLVIC and PLIC shall be
economically responsible for the GMWB rider.
(b) Within forty-five (45) days after the date hereof, the Parties shall
jointly develop and mutually agree upon detailed administrative services
level and standards for the servicing of the Phoenix Contracts hereunder.
Section 3.4 Processing Applications, Account Maintenance Forms and
Transactions. Jefferson National shall process and input all Phoenix Contract
applications, account maintenance requests and account-related transactions
provided to Jefferson National (such services performed by Jefferson National,
the "Processing Services"). Jefferson National shall perform such Processing
Services in accordance with its Rule 38a-1 compliance policies and procedures
as described in Section 3.11 of this Agreement and shall, if and as required by
Applicable Law, verify the identity of any actual or prospective contract
holder that has made Phoenix Contract application, account maintenance request
or account-related transaction request
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by using the non-public personal information of such actual or prospective
contract holder, including but not limited to, such actual or prospective
contract holder's address, date of birth, social security number, and other
clerical and administrative information (such Jefferson National verification
processes for actual or prospective contract holders, the "Identity Checks").
PLIC and PHLVIC expressly disclaim any responsibility on the part of themselves
or any of their Affiliates to perform the Identity Checks. The Parties
acknowledge that PLIC and PHLVIC are solely responsible for performing
background checks on, and appointing in applicable states, any and all agents
that are permitted to solicit applications for and sell the Phoenix Contract.
PLIC and PHLVIC, as applicable, shall provide sufficient information to
Jefferson National to establish such agents in Jefferson National's
administrative system.
Section 3.5 Jefferson National and JNSC Compliance Responsibilities. Subject
to Section 3.15 hereof, except for the appointment of agents by PLIC and PHLVIC
described in Section 3.4, Jefferson National shall be solely responsible for
compliance with, including reporting, recordkeeping, disclosure and other
obligations required by, all Applicable Laws governing the opening, approving
and monitoring of the accounts and account-related activity of contract holders
in the Phoenix Contract (collectively, "Compliance Obligations"). Jefferson
National acknowledges and agrees that its Compliance Obligations include, in
part, and as applicable, the satisfaction of requirements regarding
suitability, tax reporting, and other sales-related regulation requirements,
including, subject to Section 3.9, anti-money laundering requirements.
Notwithstanding the foregoing, PLIC and PHLVIC shall, at the request of
Jefferson National, provide Jefferson National with reasonable assistance
necessary to meet its Compliance Obligations set forth in this Section 3.5 and
the Parties agree that with respect to the PLIC Contracts, PLIC is ultimately
responsible for the resolution of any inquiries, complaints, suits, actions and
claims in connection with the PLIC Contracts.
Section 3.6 Problem Notification and Resolution. Jefferson National hereby
agrees: (i) to provide notifications to PLIC and PHLVIC of any problems within
Jefferson National's reasonable knowledge associated with the Recordkeeping
Services or Processing Services hereunder (collectively, "Jefferson Problem
Notifications"), (ii) to receive notifications from PLIC and PHLVIC of any
problems within PLIC and PHLVIC's reasonable knowledge associated with the
Recordkeeping Services or Processing Services provided hereunder (such notices
from PLIC or PHLVIC, collectively, "Phoenix Problem Notifications"); (iii) to
work with PLIC and PHLVIC in good faith to resolve any such problems with the
Recordkeeping Services and Processing Services; and (iv) to enter into the CSR
Application the resolution of all such problems to the extent the CSR
Application has such functionality (such entries by Jefferson National into the
CSR application, collectively, "CSR Entries"). Jefferson National shall provide
Jefferson Problem Notifications, respond to Phoenix Problem Notifications and
input CSR Entries in accordance with its Rule 38a-1 Policies and Procedures as
defined in Section 3.11.
Section 3.7 Data Feeds. Jefferson National, in its capacity as a technology
provider to PLIC and PHLVIC with respect to the Phoenix Contracts, shall make
certain information and systems (such as databases) available to PLIC and
PHLVIC as described below. Jefferson National's provision of systems and
information as described herein is provided to enable PLIC and PHLVIC to access
certain Jefferson National information and systems.
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(a) Jefferson National shall, on a weekly basis, transmit by electronic
means to PLIC and PHLVIC recordkeeping information with respect to accounts
of contract holders, which information shall include, but not be limited to,
name, address, account number, the date on which the account(s) was
established, and the asset contribution made for each such account.
(b) Jefferson National shall provide to PLIC and PHLVIC and process from
PLIC and PHLVIC any data feeds that may be deemed necessary to ensure that
the Phoenix Contract remains in compliance with Applicable Laws.
(c) In addition to the data feed listed on Schedule 3.7(c) hereto,
Jefferson National shall provide PLIC and PHLVIC with any additional data
PLIC and PHLVIC may reasonably request to comply with Applicable Law or as
otherwise mutually agreed to by the Parties hereto.
(d) PLIC and PHLVIC shall, on a daily basis, provide a data feed of
information needed by Jefferson National for Jefferson National to establish
agents appointed by PLIC and PHLVIC in its administrative system.
Section 3.8 Disaster Recovery Plan. Within ninety (90) days after execution
of this Agreement, Jefferson National shall develop and provide to PLIC and
PHLVIC a commercially reasonable written disaster recovery plan for maintaining
its service obligations hereunder (the "Contingency Plan"). Jefferson National
shall use commercially reasonable efforts to: (i) test the operability of the
Contingency Plan at least once every 24 months and revise the Contingency Plan
to assure its continued operability; (ii) perform a table top test of the
Contingency Plan at least once every 12 months; (iii) update the Contingency
Plan to assure compliance with any changes in Applicable Laws; and
(iii) activate the Contingency Plan upon the occurrence of a disaster or
significant outage (as further defined in such Contingency Plan).
Section 3.9 AML Compliance. Jefferson National, JNFC and JNSC represent and
warrant that they have designed and implemented an anti-money laundering
program that complies with Applicable Law ("Jefferson AML Program"), and agree
that they will cooperate with PLIC and PHLVIC to implement mutually agreed
changes consistent with PLIC's and PHLVIC's anti-money laundering program.
Section 3.10 Certifications. Jefferson National agrees to cooperate with
PLIC and PHLVIC by providing PLIC and PHLVIC and/or their respective officers
with any mutually agreed upon certifications or attestations in connection with
requested preparation of financial statements or certification relating to the
Accounts or the Phoenix Contracts; provided that PLIC and PHLVIC acknowledges
that Jefferson National is not required to provide any certification or
attestations required by or similar in substance to the Sarbanes Oxley Act of
2002 and Jefferson National acknowledges that PLIC and PHLVIC are entitled to
the audit of Jefferson National and its Affiliates in connection with the
Phoenix Contracts pursuant to section 3.17.
Section 3.11 Rule 38a-1. Jefferson National shall provide its written
policies and procedures pursuant to Rule 38a-1 under the 1940 Act ("Rule 38a-1
Policies and Procedures"), to PLIC's and PHLVIC's chief compliance officer for
review and approval as required by Rule 38a-1. Jefferson National further
agrees to cooperate with PLIC and PHLVIC in their review
15
and approval of such written policies and procedures, including, without
limitation, furnishing such mutually agreed upon certifications and
sub-certifications as PLIC or PHLVIC shall reasonably request from time to
time. Jefferson National agrees that it shall promptly furnish PLIC and PLVIC
with copies of any material amendments to its Rule 38a-1 Policies and
Procedures and that it shall promptly notify PLIC or PHLVIC in the event that a
"material compliance matter" (as such term is defined pursuant to Rule 38a-1
under the 0000 Xxx) arises with respect the services it provides under the
Agreement.
Section 3.12 Regulation S-P. Jefferson National shall not, directly or
indirectly, disclose or use any nonpublic personal information regarding the
consumers or customers of PLIC or PHLVIC (as the terms "consumer" and
"customer" are defined in Rule 3(g) and 3(i), respectively, of Regulation S-P
of the Securities and Exchange Commission), other than to carry out the
functions contemplated by the Agreement, and Jefferson National shall establish
appropriate administrative, technical and physical safeguards to protect the
security, confidentiality and integrity of any such nonpublic personal
information.
Section 3.13 Late Trading. Any orders for the purchase and redemption of
Phoenix Contract accumulation units and the corresponding Underlying Fund
shares, whether or not in good order, that are accepted by Jefferson National
after 4:00 p.m. Eastern time (or such earlier time as is required by the
Underlying Fund) on any Business Day, shall be processed at prices calculated
as of the next Business Day. For the purposes hereof, a "Business Day" shall
mean any day on which the New York Stock Exchange is open for trading and on
which an Underlying Fund calculates its net asset value pursuant to the rules
of the SEC as amended from time to time, subject to such terms and conditions
as may be set forth in the registration statement for the Underlying Fund as
filed with the SEC, as the same shall be amended from time to time.
Section 3.14 Market Timing. In connection with its administration of the
Phoenix Contracts, and in no way in limitation thereof, Jefferson National
agrees to implement the same automated market timing prevention system that as
of the date of this Agreement it uses in connection with Monument Adviser
Contracts. Jefferson National further agrees to notify PLIC and PHLVIC in
advance of any intended material changes to such automated market timing
prevention system and to not implement any such proposed material change
without PLIC's or PHLVIC's consent, such consent not to be unreasonably
withheld.
Section 3.15 Limitation on Administration of PLIC Contracts. Notwithstanding
anything contained herein to the contrary, PLIC acknowledges that Jefferson
National is only permitted to perform ministerial functions on its behalf in
administering the PLIC Contracts, and at no point shall Jefferson National
exercise discretion in administering the PLIC Contracts. In the event
discretion is required, Jefferson National shall request direction from PLIC,
and PLIC shall provide such direction promptly. In these instances, PLIC agrees
to use its commercially reasonable efforts to respond quickly enough for
Jefferson National to administer the PLIC Contracts in accordance with its Rule
38a-1 Policies and Procedures. PLIC shall provide Jefferson National with its
policies and procedures for administering New York business within thirty days
of the date of this Agreement.
Section 3.16 Bank Accounts. PLIC and PHLVIC shall open and maintain one or
more bank accounts, the number and use of such bank accounts to be consistent
with Applicable Law,
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(each, a "Bank Account") in the name of PLIC and PHLVIC for use in the
operation of the administrative services for the Phoenix Contracts. PLIC and
PHLVIC shall give Jefferson National non-exclusive authority over the Bank
Accounts in providing the administrative services. PLIC and PHLVIC agree that
without Jefferson National's prior written consent they shall not make any
changes to the authorized Jefferson National signatories on the Bank Accounts.
Upon the Conversion Date (as defined in Section 7.2(e)), Jefferson National's
authority over the Bank Accounts shall cease and shall promptly return to PLIC
and PHLVIC all unused check stock and other documents held by it in connection
with this Agreement.
Section 3.17 Access. PLIC and PHLVIC may from time to time reasonably
request, and Jefferson National shall provide, at reasonable times during
normal business hours, reasonable access for PLIC and PHLVIC or its designee(s)
(including PLIC and PHLVIC's auditors) to examine any books and records
relating to the Phoenix Contracts and/or the administrative services provided
by Jefferson National hereunder and to speak with employees and agents of
Jefferson National and its Affiliates or any subcontractor who are familiar
with the administrative services, for any reasonable business purpose relating
to (i) the preparation or audit of financial statements, (ii) the presentation
of filings and submissions to regulatory authorities and other Governmental
Authorities, (iii) responding to regulatory inquiries or other regulatory
purposes, (iv) the preparation of tax returns or in connection with any audit,
amended return, claim for refund or any proceeding with respect thereto,
(v) the investigation, arbitration, litigation and final disposition of any
claims that may have been or may be made against PLIC, PHLVIC or an Affiliate
in connection with the Phoenix Contracts or that PLIC, PHLVIC or an Affiliate
may make with respect to the Phoenix Contracts; provided, that any data or
information developed by Jefferson National in support or defense of any
indemnification claim under this Agreement or any Ancillary Agreement,
including without limitation any document subject to attorney-client privilege
or the work product doctrine, will not be required to be made available to PLIC
and PHLVIC, and (vi) the audit of the adequacy of the administrative services
and Jefferson National's compliance with this Agreement. Such access shall
include the right of PLIC and PHLVIC, at its sole expense, to make and retain
copies of any such books and records as PLIC and PHLVIC reasonably deem
necessary. PLIC and PHLVIC shall give Jefferson National reasonable prior
notice of the need for such access and shall comply with any written
instructions provided by Jefferson National in connection with the use of or
access to any of Jefferson National's information, personnel, facilities,
office and storage space. Without limiting the foregoing, each Party shall
cooperate with the other in all commercially reasonable respects in order to
accomplish the objectives of this Agreement.
Article IV
Representations, Warranties and Covenants of PLIC, PHLVIC and PEPCO
Each of PLIC, PHLVIC and PEPCO hereby represents, warrants and covenants,
severally and not jointly to Jefferson National and JNSC as follows (it being
understood that each of PLIC PHLVIC and PEPCO hereby makes only those
representations, warranties and covenants that specifically relate to it or to
its portion of the Phoenix Contracts):
Section 4.1 Conformity with Organizational Documents and Applicable Laws.
Each of PLIC, PHLVIC and PEPCO represents and warrants to Jefferson National
that (i) it is a corporation duly organized and validly existing and in good
standing under the laws of its
17
respective jurisdiction of incorporation; (ii) it is empowered under Applicable
Law and by its articles of incorporation and by-laws to enter into and perform
the services and obligations contemplated in this Agreement and the Ancillary
Agreements; (iii) it has acted and will continue to act in conformity with its
organizational documents (including, without limitation, its charters and
bylaws, as the same may be amended from time to time) and resolutions and other
instructions of its respective Board of Directors or equivalent controlling
person(s); and (iv) it has materially complied and will continue to materially
comply with all Applicable Laws. PLIC hereby agrees that it will only sell the
PLIC Contracts in the States of New York and Maine.
Section 4.2 Right, Power, and Authority. PLIC, PHLVIC and PEPCO each
represents and warrants that it has all requisite corporate power and authority
to execute and deliver, and to perform its respective obligations under, this
Agreement and under each of the Ancillary Agreements to be executed by it on or
after the date hereof. Other than the approvals and permits to be obtained as
contemplated by this Agreement, the execution and delivery of this Agreement by
each of PLIC, PHLVIC and PEPCO and the consummation by each of PLIC, PHLVIC and
PEPCO of the transactions contemplated hereby, and the execution and delivery
of the Ancillary Agreements and the other agreements, documents and instruments
to be executed and delivered in connection with this Agreement or the Ancillary
Agreements by PLIC, PHLVIC and PEPCO and their Affiliates which are parties
thereto and the consummation of the transactions contemplated thereby, have
been duly authorized by all other necessary corporate action on the part of
each such person. This Agreement has been duly executed and delivered by each
of PLIC, PHLVIC and PEPCO, and the Ancillary Agreements to be executed by such
Party will be duly executed and delivered by such Party, and, subject to the
due execution and delivery by the other parties to such agreements, this
Agreement and the Ancillary Agreements executed by each of PLIC, PHLVIC and
PEPCO will be, upon due execution and delivery, valid and binding obligations
of such Party, as the case may be, enforceable against such Party in accordance
with their respective terms, subject to: (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting the rights of creditors of
insurance companies or creditors' rights generally; and (b) general principles
of equity (regardless of whether considered in a proceeding at law or in
equity).
Section 4.3 Appropriate Registration and Qualification. PLIC and PHLVIC each
represents and warrants that it is an insurance company duly qualified and
admitted to sell insurance in each state in which it will offer and sell a
Phoenix Contract. PEPCO represents and warrants that it is, and will continue
to be, registered as a broker-dealer under the 1934 Act and a member of FINRA.
PLIC, PHLVIC, and PEPCO each represents and warrants that it will have, prior
to the commencement of the offering and marketing of the Phoenix Contract, and
will continue to have, all requisite appointed insurance agents, and registered
principals and representatives, each of whom is, and will continue to be,
properly registered, licensed and/or qualified under all applicable federal and
state laws and regulations (including without limitation the rules of FINRA).
Section 4.4 PEPCO's Actions as Principal Underwriter of the Phoenix
Contracts. Subject to Section 2.5, PEPCO shall act as the principal underwriter
for the Phoenix Contracts, and shall be primarily responsible for negotiating
selling agreements for the distribution of the
18
Phoenix Contracts. PEPCO represents and warrants that it will act in this
capacity pursuant to this Agreement and in accordance with all Applicable Law.
Section 4.5 No Conflicts. PLIC, PHLVIC and PEPCO each represents and
warrants that the execution and delivery by it of this Agreement and the
Ancillary Agreements, the performance of its duties hereunder and thereunder,
and the receipt of payments hereunder do not and will not conflict with or
result in a violation of or material breach of or constitute a default under
any material agreement to which it is a party.
Section 4.6 Continuing Disclosure Obligation. Each of PLIC, PHLVIC or PEPCO,
as the case may be, shall promptly inform Jefferson National and JNSC in the
event that any representation and warranty herein becomes inaccurate in any
material aspect, or upon having a reasonable basis for believing that a
representation and warranty has ceased to be accurate in all material respects
Section 4.7 Ratings. As of the date hereof, each of PLIC and PHLVIC have a
financial strength rating of "A" by A.M. Best Company, Inc. ("AM Best"). To the
knowledge of PLIC and PHLVIC, there is no reason to believe as of the date
hereof that the claims paying ability, financial strength or other ratings by
A.M. Best of PLIC and PHLVIC will be adversely affected by the consummation of
the transactions contemplated hereby.
Section 4.8 Phoenix Product Restriction. During the Initial Term and any
Renewal Term of this Agreement, other than with respect to the Phoenix
Contract, PLIC, PHLVIC and its Affiliates shall not, directly or indirectly,
without Jefferson National's prior written consent, register, market, offer,
distribute or sell a conventional deferred variable annuity (i) that is
qualified under Section 817(h) of the Internal Revenue Code and registered
under the 1940 Act, with a base variable contract fee (i.e, mortality and
expense risk charge) that is not an asset-based charge and (ii) that will
dilute the benefit to Jefferson National and its Affiliates as anticipated
under this Agreement. In addition to all other remedies available, Jefferson
National shall be entitled to seek equitable relief, including without
limitation, injunction and specific performance, as a remedy for
non-performance or breach under this Section.
Article V
Representations, Warranties and Covenants of Jefferson National
Each of Jefferson National, JNFC and JNSC hereby represents, warrants and
covenants, severally and not jointly to PLIC, PHLVIC and PEPCO as follows (it
being understood that each of Jefferson National, JNFC and JNSC hereby makes
only those representations, warranties and covenants that specifically relate
to it):
Section 5.1 Conformity with Organizational Documents and Applicable Laws.
Each of Jefferson National, JNFC and JNSC represents and warrants to PLIC and
PHLVIC that (i) it is a corporation duly organized and validly existing and in
good standing under the laws of its respective jurisdiction of incorporation;
(ii) it is empowered under Applicable Law and by its articles of incorporation
and by-laws to enter into and perform the services contemplated in this
Agreement and the Ancillary Agreements; (iii) it has acted and will continue to
act in conformity with its organizational documents (including, without
limitation, its charters and bylaws, as the
19
same may be amended from time to time) and resolutions and other instructions
of its respective Board of Directors or equivalent controlling person(s); and
(iv) it has materially complied and will continue to materially comply with all
Applicable Laws.
Section 5.2 Right, Power, and Authority. Jefferson National, JNFC and JNSC
each represents and warrants that it has all requisite corporate power and
authority to execute and deliver, and to perform its respective obligations
under, this Agreement and under each of the Ancillary Agreements to be executed
by it on or after the date hereof. Other than the approvals and permits to be
obtained as contemplated by this Agreement, the execution and delivery of this
Agreement by each of Jefferson National, JNFC and JNSC and the consummation by
each of Jefferson National, JNFC and JNSC of the transactions contemplated
hereby, and the execution and delivery of the Ancillary Agreements and the
other agreements, documents and instruments to be executed and delivered in
connection with this Agreement or the Ancillary Agreements by Jefferson
National, JNFC and JNSC and their Affiliates which are parties thereto and the
consummation of the transactions contemplated thereby, have been duly
authorized by all other necessary corporate action on the part of each such
person. This Agreement has been duly executed and delivered by each of
Jefferson National, JNFC and JNSC, and the Ancillary Agreements to be executed
by such Party will be duly executed and delivered by such Party, and, subject
to the due execution and delivery by the other parties to such agreements, this
Agreement and the Ancillary Agreements executed by each of Jefferson National,
JNFC and JNSC will be, upon due execution and delivery, valid and binding
obligations of such Party, as the case may be, enforceable against such Party
in accordance with their respective terms, subject to: (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other similar
laws now or hereafter in effect relating to or affecting the rights of
creditors of insurance companies or creditors' rights generally; and
(b) general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
Section 5.3 Appropriate Registration and Qualification. Jefferson National
represents and warrants that it is an insurance company duly qualified and
admitted to sell insurance in each state in which the Phoenix Contracts are
offered and sold, other than New York. JNSC represents and warrants that it is,
and will continue to be, registered as a broker-dealer under the 1934 Act and a
member of FINRA. Jefferson National and JNSC each represents and warrants that
it will have, prior to the commencement of the offering and marketing of the
Phoenix Contract, and will continue to have, all requisite appointed insurance
agents, and registered principals and representatives, each of whom is, and
will continue to be, properly registered, licensed and/or qualified under all
applicable federal and state laws and regulations (including without limitation
the rules of FINRA).
Section 5.4 Tax Qualification. Jefferson National represents and warrants
that the Monument Advisor Contract qualifies as an annuity contract under
Section 72(s) of the Internal Revenue Code. Jefferson National acknowledges
that PLIC and PHLVIC are relying on this representation and warranty with
respect to the qualification of the Phoenix Contract as an annuity contract
under Section 72(s). In the event that Jefferson National becomes aware of any
facts or circumstances that have resulted in, or may reasonably be believed to
potentially result in, the Monument Advisor Contract no longer qualifying as an
annuity contract under Section 72(s), Jefferson National shall immediately
notify PLIC and PHLVIC in writing of such facts or circumstances. In the event
an appropriate authority commences a proceeding against Jefferson
20
National seeking to terminate the Monument Advisor Contract's qualification
under Section 72(s), such proceeding is not dismissed or vacated within sixty
(60) days, and the reason for such disqualification is a provision
substantially identical to a corresponding provision of the Phoenix Contract,
PLIC and PHLVIC shall have the right to terminate pursuant to Section 9.2(iv).
PLIC and PHLVIC acknowledge that, to the extent the Phoenix Contract is not
substantially identical to the Monument Advisor Contract, in this regard,
neither PLIC nor PHLVIC is relying on Jefferson National to make the
determination that the Phoenix Contract qualifies as an annuity under
Section 72(s) of the Internal Revenue Code. PLIC and PHLVIC further acknowledge
that, with respect to the guaranteed minimum withdrawal benefit right included
in the Phoenix Contract and any other provision in the Phoenix Contract that is
not substantially identical to the Monument Advisor Contract Jefferson National
is relying on PLIC and PHLVIC to make the determination that such rider or
difference will not disqualify the Phoenix Contract as an annuity under
Section 72(s) of the Internal Revenue Code and will be administered by
Jefferson National accordingly.
Section 5.5 Registration and Regulation Under the Federal Securities Laws.
As provided in Section 1.9 of this Agreement, in order to facilitate PLIC's and
PHLVIC's duties under this Agreement, Jefferson National will provide PLIC and
PHLVIC with policy forms, contracts, state and federal filings, marketing and
sales materials, and similar forms and documents relating to the Monument
Advisor Contract. Jefferson National personnel shall also provide assistance as
necessary to facilitate the design, registration, and filing of the Phoenix
Contracts. Jefferson National acknowledges that PLIC and PHLVIC are relying on
it to ensure that these documents comply with Applicable Laws to the extent the
Phoenix Contract is substantially identical to the Monument Adviser Contract,
and with due regard to such reliance, Jefferson National represents and
warrants that (i) the Monument Advisor policy forms and contracts that it will
provide PLIC and PHLVIC are in substantial compliance with applicable state
insurance laws, regulations, insurance department bulletins and other
department interpretations; (ii) the state and federal filings for the Monument
Advisor Contract that it will provide to PLIC and PHLVIC will provide full and
fair disclosure regarding the Monument Advisor Contract and comply in all
material respects with Applicable Law. Jefferson National agrees to provide
PLIC and PHLVIC with copies of any and all SEC, FINRA or other governmental
releases, administrative decisions, no-action letters, examination reports
(including so-called "deficiency letters"), correspondence, and any other
communications relating to the Monument Advisor Contract.
Section 5.6 Amendments to Phoenix Contract Materials. Jefferson National
agrees to deliver to PLIC and PHLVIC a copy of (i) any amended documents or
materials listed in the foregoing Section 5.5 of this Agreement, including, but
not limited to, any contract and form amendments, prospectuses and Statements
of Additional Information and supplements thereto, which relate to the Monument
Advisor Contract's core product design or its qualification as an annuity under
Section 72(s) of the Internal Revenue Code, within five (5) days from the time
that such documents or materials are amended and in final form.
Section 5.7 Separate Account Compliance Procedures. Jefferson National
acknowledges and agrees that by providing the administrative services relating
to the Phoenix Contract to PLIC and PHLVIC as provided in the Agreement, it
will be an "administrator" as that term is defined in Rule 38a-1 under the 1940
Act. Jefferson National further acknowledges
21
that because of this status under Rule 38a-1, PLIC and PHLVIC (acting on behalf
of their respective Accounts) are required to review and approve compliance
policies and procedures developed and adopted by Jefferson National that are
reasonably designed to prevent material violations of the federal securities
laws in accordance with the requirements and standards set forth in Rule 38a-1.
In furtherance of assisting PLIC and PHLVIC in complying with Rule 38a-1, but
in no way in limitation of its duties and obligations under this Section 5.7,
Jefferson National agrees to prepare compliance policies and procedures
(hereinafter the "Phoenix Compliance Policies and Procedures") that shall
govern its provision of administrative services to PLIC and PHLVIC relating to
the Phoenix Contracts as provided in this Agreement. Jefferson National
represents and warrants that the Phoenix Compliance Policies and Procedures
will comply in all material respects with Rule 38a-1, including, without
limitation, the requirement that they be reasonably designed to prevent
material violations of federal securities laws. PLIC and PHLVIC agree that, to
the extent consistent with the provisions of this Section 5.7 and with this
Agreement generally, that the Phoenix Compliance Policies and procedures may be
developed based on Rule 38a-1 compliance policies and procedures currently used
by Jefferson National to administer the Monument Adviser Contracts.
Section 5.8 Compliance With Applicable Laws and Regulations. The Parties
acknowledge that the Phoenix Contract, like the Monument Advisor Contract, will
be developed and administered based on an innovative design that will permit
the Phoenix Contract to be administered electronically. In recognition of the
innovative nature of the Phoenix Contract and the associated administrative
system, but in no way in limitation of its responsibilities and obligations
with respect thereto, Jefferson National represents and warrants that (i) the
issuance, sale and administration of the Phoenix Contracts will comply in all
material respects with all Applicable Laws; and (ii) that the automated market
timing prevention system it currently uses in connection with its Monument
Adviser Contracts and the system it has agreed, pursuant to Section 3.14 of
this Agreement, to implement with respect to the Phoenix Contracts, are fully
and accurately described in all material respects in the Monument Adviser
Contract registration statement and will continue to be so described for the
Monument Adviser Contracts as of the date of this Agreement, and that such
system is reasonably designed to detect and deter harmful or abusive frequent
trading. Each of Jefferson National and JNFC further represents that it has all
licenses, permits and approvals necessary to perform its obligations under this
Agreement and the Ancillary Agreements and will maintain such licenses, permits
and approvals in full force and effect during the term of such agreements.
Section 5.9 No Conflicts. Jefferson National, JNFC and JNSC each represents
and warrants that the execution and delivery by it of this Agreement, the
performance of its duties hereunder, and the receipt of payments hereunder do
not and will not conflict with or result in a violation of or material breach
of or constitute a default under any material agreement to which it is a party.
Section 5.10 Continuing Disclosure Obligation. Jefferson National, JNFC or
JNSC, as the case may be, shall promptly inform PLIC and PHLVIC in the event
that any representation and warranty herein becomes inaccurate in any material
respect, or upon having a reasonable basis for believing that a representation
and warranty has ceased to be accurate in all material respects.
22
Section 5.11 Jefferson National Restriction. During the Initial Term and any
Renewal Term of this Agreement, Jefferson National and its Affiliates shall
not, directly or indirectly, without the prior written consent of PLIC, PHLVIC
or its Affiliates, enter into any arrangements or strategic alliance agreements
that are similar to the arrangements contemplated under this Agreement and the
Ancillary Agreements to register, market, offer, distribute or sell, on behalf
of another life insurance company, a conventional deferred variable annuity
(i) that is qualified under Section 817(h) of the Internal Revenue Code and
registered under the 1940 Act, with a base variable contract fee (i.e,
mortality and expense risk charge) that is not an asset-based charge and
(ii) that will dilute the benefit to PLIC and PHLVIC and their Affiliates as
anticipated under this Agreement. In addition to all other remedies available,
PLIC and PHLVIC shall be entitled to seek equitable relief, including without
limitation, injunction and specific performance, as a remedy for
non-performance or breach under this Section.
Article VI
Use of Marks, Co-Branding and Marketing Materials
Section 6.1 Use of Phoenix Marks. Without limitation of Sections 1.1 and
1.2, PLIC and PHLVIC hereby grant to Jefferson National a limited,
non-transferable, royalty-free license to use the Phoenix Marks (as defined
below) for the Initial Term and any Renewal Term, solely for the purpose of
carrying out Jefferson National's duties set forth in this Agreement, and
solely in accordance with the terms and conditions of this Agreement. Jefferson
National shall not alter, modify or change the Phoenix Marks in any way, and
shall utilize the Phoenix Marks in accordance with the Style Guide provided by
PLIC and PHLVIC. If PLIC and PHLVIC determine in their sole discretion that
Jefferson National is using or displaying the Phoenix Marks in a manner that is
or may be detrimental to PLIC or PHLVIC's interest, PLIC or PHLVIC, as the case
may be, may issue reasonable instructions to Jefferson National concerning the
manner, if any, in which Jefferson National may continue to use the Phoenix
Marks. Upon receipt of such instructions, Jefferson National shall promptly
comply with such instructions. PLIC and PHLVIC shall provide Jefferson National
with all the Phoenix Marks production materials (i.e. camera ready art)
required for use by Jefferson National. In accordance with Sections 2.3 and
6.4(d), Jefferson National shall obtain the prior approval of PLIC and PHLVIC
for all materials to be used by Jefferson National in connection with the
marketing, sale and administration of the Phoenix Contract which contain the
Phoenix Marks, including but not limited to solicitation materials, disclosure
statements, account statements, enrollment materials, customer agreements,
correspondence, and web pages and any material amendments thereto. Jefferson
National shall not combine or allow others to combine any Phoenix Marks with
any other xxxx or term without the prior written approval of PLIC and PHLVIC.
The consent of PLIC and PHLVIC in connection with the use of the Phoenix Marks
by Jefferson National shall not be construed as imposing any responsibility or
liability upon PLIC or PHLVIC for the compliance of any such materials with
Applicable Law, it being understood, unless otherwise provided herein, that
Jefferson National shall be responsible for the compliance of such materials
with all Applicable Law. The license and authorization granted by PLIC and
PHLVIC to Jefferson National pursuant to this Section 6.1 shall not be assigned
by Jefferson National except to the extent that this Agreement is assignable
pursuant to Section 10.3. All usage of the Phoenix Marks shall inure to PLIC's
and PHLVIC's benefit. For the Phoenix Contract materials it prepares or uses,
Jefferson National shall ensure that the Phoenix Marks, including product and
service marks used for the Phoenix Contract, appear clearly and prominently on
the Phoenix
23
Contract materials including, without limitation, the marketing and promotional
materials for the Phoenix Contract created and distributed by Jefferson
National. Except as set forth in this Section 6.1, PLIC and PHLVIC each
otherwise reserves all of its right, title and interest in and to the Phoenix
Marks. It is expressly agreed by the Parties herein that, except as set forth
in this Section 6.1, Jefferson National is not purchasing or acquiring any
ownership right, title or interest in Phoenix Marks or any other intellectual
property right owned by PLIC and PHLVIC. The term "Phoenix Marks" means the
registered, statutory or common law trademarks, logos, service marks, trade
names and other proprietary markings identified to Jefferson National by PLIC
and PHLVIC from time to time as being owned by or licensed to PLIC and PHLVIC
as set forth in the Style Guide. PLIC and PHLVIC may from time to time amend
the list of Phoenix Marks set forth in the Style Guide, provided that PLIC and
PHLVIC provide a copy of such amended schedule to Jefferson National prior to
the effective date thereof. Jefferson National agrees that, upon the request of
PLIC and PHLVIC, it will promptly provide PLIC and PHLVIC with copies of the
materials using the Phoenix Marks.
Section 6.2 Limitation on Use of PLIC and PHLVIC Names. No party shall use
the names of PLIC, PHLVIC, or their Affiliates other than as permitted under
this Agreement; provided, however, that the approval of PLIC and PHLVIC shall
not be required for the use of PLIC's, PHLVIC's, or their Affiliates' names by
any Party in connection with performing its duties and obligations hereunder in
a manner not inconsistent with this Agreement, or exercising its rights under
this Agreement to the extent provided herein, or which is required by the SEC,
FINRA, any state insurance authority or any other appropriate regulatory,
governmental or judicial authority or, if such party is PLIC and PHLVIC, in
connection with marketing and related materials not related to the Phoenix
Contract for PLIC and PHLVIC and its Affiliates.
Section 6.3 Clearance of Third Party Intellectual Property Rights. Under the
terms of this Agreement, Jefferson National will undertake the development and
maintenance of a customer and partner website for the Phoenix Contract, and
Jefferson National will undertake the creation, reproduction, and dissemination
of marketing and promotional materials. In implementing these aspects of the
Agreement, the Parties recognize the likelihood of using trademarks, service
marks, logos, photographs, artwork, and textual materials that may be owned, or
exclusively licensed, by others. In such cases, Jefferson National at its
expense shall clear all rights for the use of any proprietary products prior to
their incorporation into the web site or the marketing and promotional
materials. Furthermore, the Parties will include the appropriate copyright
notices and indications of trademark protection in the website and marketing
materials to ensure that customers, and others with access to them, understand
both their proprietary nature and the limitations on their unauthorized use.
Section 6.4 Website Development and Maintenance.
(a) As provided for in Section 3.1 above, Jefferson National shall
develop, host and implement a customer and partner Phoenix Contract website
for the offering and maintenance of the Phoenix Contract (together, the
"Website"), which Website shall contain functional web pages for the Phoenix
Contract that include access to account histories for both the contract
holders in the Phoenix Contract and broker-dealers and investment advisers,
and which shall be operational on a date mutually agreed to by the Parties.
Jefferson National shall retain and own rights to the uniform resource
locator ("URL") and domain name on which the
24
Website resides; provided, however, Jefferson National shall convey its
right, title and interest in and to the URL (but not Website content) to
PLIC, PHLVIC or its affiliate (i) upon termination of this Agreement
pursuant to Sections 9.2(ii) (but only if Jefferson National terminates),
9.2(iii), 9.2(iv) (but only if Jefferson National is the breaching party) or
9.2(vi), or (ii) if this Agreement is terminated for any reason and
Jefferson National or any of its Affiliates is not providing any
administrative services to the Phoenix Contracts; provided that in this
case, PLIC and PHLVIC shall only use the URL for purposes of administering
the Phoenix Contracts. Without obligating Jefferson National to obtain or
perform any such services, to the extent Jefferson National obtains any
service reports tracking the statistics of activities on the Website,
Jefferson National agrees to make such reports available to PLIC and PHLVIC.
(b) Jefferson National shall develop a single version of custom web
content to fill the content sections of the Websites. To assist in the
content development, Jefferson National will draw upon the existing content
sections of the Monument Advisor Contract website, provided that Jefferson
National shall retain all intellectual property rights with respect to such
content, except as provided herein. The content section of the Website shall
contain an "Investment Options" section, which shall include, if available,
underlying fund fact sheets, fund prospectuses, and portfolio level fact
sheets, as well as any other investment related information the Parties wish
to place in the Investment section.
(c) Jefferson National shall bear all costs associated with the
development, implementation, improvement and maintenance of the Website.
Jefferson National shall be responsible for securing the web development
resources to develop, host and implement the Website.
(d) In an effort to control the development costs of all content sections
of the Website, Jefferson National, PLIC, and PHLVIC agree to make
commercially reasonable efforts to limit the review and approval process of
content materials to two "rounds" of review upon which such content
materials shall be approved with no further change other than minor
editorial changes.
(e) Notwithstanding anything to the contrary, Jefferson National shall
retain ultimate ownership and control of the Website, including without
limitation, ownership and control of all content pages, tools, services and
other aspects of the Websites in connection with the Phoenix Contract, and,
subject to the conveyance described in Section 6.4(a) above, the URL and
domain name on which the Website resides.
(f) Jefferson National shall ensure that all site content on the Website
complies with all applicable regulatory requirements and Jefferson National
and/or JNSC, as the case may be, shall make appropriate filings relating to
the Website content sections as may be required by Applicable Law.
Section 6.5 License of Patent Rights and Technology. During the Initial Term
and any Renewal Term of this Agreement or the life of any intellectual property
right, whichever is shorter, JNFC and Jefferson National grant PHLVIC and PLIC
a sole, paid up, royalty free license, with the right to sublicense only to
PHLVIC and PLIC's Affiliates, to use their respective intellectual property,
including without limitation, any and all rights under U.S. Patent
25
Application No. 11/501,719, filed on August 10, 2006, and any patent that
issues therefrom, or any reissue, re-examination, division, continuation, or
continuation in part thereof for the purpose of offering, selling, issuing and
administering the Phoenix Contracts pursuant to the terms of this Agreement.
Section 6.6 Post Termination License.
(a) If Jefferson National terminates this Agreement pursuant to
Section 9.2(ii), or if this Agreement is terminated pursuant to 9.2(iv) (but
only if Jefferson National is the breaching party) or 9.2(vi), Jefferson
National and JNFC shall enter into a licensing agreement on commercially
reasonable terms, granting PHLVIC and PLIC a post termination license for
any then valid and continuing intellectual property rights described in
Section 6.5 above for purposes of PHLVIC's and PLIC's marketing, sale and
administration of new and existing Phoenix Contracts.
(b) If this Agreement is terminated pursuant to termination events other
than those under Section 6.6(a) and as long as there are Phoenix Contracts
outstanding, Jefferson National and JNFC shall enter into a licensing
agreement on commercially reasonable terms, granting PHLVIC and PLIC a post
termination license for any then valid and continuing intellectual property
rights described in Section 6.5 above solely for purposes of PHLVIC's and
PLIC's administration of the then existing Phoenix Contracts.
Article VII
Additional Reinsurance Agreement and Recapture Events
Under the Phoenix Reinsurance Agreement
Section 7.1 JNL Reinsurance Agreement.
(a) In connection with Jefferson National's issuance of the Monument
Advisor Contracts, the parties hereto agree that each twelve-month period
with the initial such period beginning January 1, 2010, and each following
twelve-month period starting after the last day of the previous twelve-month
period shall be a "Calculation Period." For purposes of this Agreement, the
payment and premiums (including any renewal premiums) collected on the
Monument Advisor Contracts during each Calculation Period less the sum of
(i) the premiums (including any renewal premiums) collected on the Phoenix
Contracts during such Calculation Period and (ii) $250 million shall be the
"Differential Amount;" provided, however, that the renewal premium on any
Monument Advisor Contract shall not be included in the calculation for any
Calculation Period if such Monument Advisor Contract is already included in
an existing JNL Reinsurance Agreement (as defined below). Jefferson National
shall calculate the Differential Amount in good faith and communicate such
amount to PHLVIC within thirty (30) days after the end of each Calculation
Period. If PHLVIC disagrees with any calculation of the Differential Amount,
the Parties shall resolve any dispute in good faith as promptly as
practicable. If for any Calculation Period, the Differential Amount is
greater than zero, Jefferson National and PHLVIC shall enter into a
reinsurance agreement substantially in the form attached hereto as Exhibit B
effective as of the beginning of such Calculation Period for the Monument
Advisor Contracts issued during such Calculation Period (the "JNL
Reinsurance Agreement").
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(b) The quota share of the Monument Advisor Contracts issued during such
Calculation Period to be reinsured by PHLVIC under any JNL Reinsurance
Agreement shall be a percentage equal to (i) divided by (ii), where:
(i) shall equal the sum of (1) 25% of the Differential Amount for the
Calculation Period subject to such JNL Reinsurance Agreement greater
than zero but not exceeding $250 million and (2) 10% of such
Differential Amount greater than $250 million, and
(ii) shall equal the total premiums and payments collected during
such Calculation Period on the Monument Advisor Contracts issued during
such Calculation Period.
Section 7.2 Recapture under the Phoenix Reinsurance Agreement.
(a) From and after the effective date of the Phoenix Reinsurance
Agreement, any of the following occurrences shall allow, but not obligate,
PHLVIC to exercise the recapture remedy set forth in this Section 7.2 with
respect to the PHLVIC Contracts reinsured under the Phoenix Reinsurance
Agreement (individually or collectively, as the context indicates, a
"Recapture Event"):
(i) a petition for insolvency, rehabilitation, conservation,
supervision, liquidation or similar proceeding is filed by or against
Jefferson National or its statutory representative in any jurisdiction;
(ii) Jefferson National has not, within 60 days of being notified of
its failure to maintain any licenses or authorizations necessary to
perform its obligations under the Phoenix Reinsurance Agreement and this
Agreement, taken substantial steps to obtain any such necessary license
or authorization, and the failure of Jefferson National to hold such
license or authorization causes PHLVIC to be in violation of any
Applicable Law or otherwise adversely affects PHLVIC in any material
respect, or Jefferson National materially breaches this Agreement or any
Ancillary Agreement (provided such material breach is not substantially
cured within sixty (60) days of notice of such breach; or Jefferson
National becomes subject to a criminal indictment or information or
similar proceedings;
(iii) Upon notice from Jefferson National that its authorized control
level risk based capital at the end of a calendar quarter falls below
250% for two consecutive quarters (such notice shall be provided by
Jefferson National within 7 days of knowledge of such event); or
(iv) Jefferson National provides notice to PHLVIC to terminate this
Agreement pursuant to Section 9.2(ii) thereof.
(b) Upon the occurrence of a Recapture Event described in (a) above,
PHLVIC shall have the right to recapture all, and not less than all, of the
PHLVIC Contracts reinsured under the Phoenix Reinsurance Agreement, by
providing Jefferson National with written notice of its
27
intent to effect recapture not later than ninety (90) days of receiving
notice of the occurrence of the relevant Recapture Event. PHLVIC shall give
Jefferson National written notice (the "Recapture Notice") specifying
(x) the grounds for the exercise of its remedies pursuant to this
Section 7.2 and (y) the fact of recapture; provided that the effective date
of such recapture shall be the Conversion Date (as defined below).
(c) If PHLVIC or PLIC provides notice to terminate this Agreement
pursuant to Section 9.2(ii) hereof, and within ninety (90) days of receiving
such termination notice, Jefferson National provides PHLVIC notice to
exercise its right pursuant to Section 9.3(c) hereof, then the Phoenix
Reinsurance Agreement shall be terminated effective as of the Conversion
Date.
(d) Any recapture by PHLVIC under above clause (b) or termination of the
Phoenix Reinsurance Agreement under above clause (c) or otherwise pursuant
to the provisions under the Phoenix Reinsurance Agreement shall not be
deemed to have been consummated until (i) PHLVIC or Jefferson National have
made a final settlement in accordance with the Phoenix Reinsurance Agreement
and with a termination charge as applicable, and (ii) administration of the
Phoenix Contracts has been converted to PHLVIC or PLIC as applicable
pursuant to Section 7.2(e). Following the consummation of the recapture of
the PHLVIC Contracts or the termination of the Phoenix Reinsurance
Agreement, no additional premiums, deposits or other amounts payable under
or in connection with such PHLVIC Contracts shall be paid to Jefferson
National under the Phoenix Reinsurance Agreement. The amount of any
termination charge shall be determined and payable in accordance with the
provisions set forth in the Phoenix Reinsurance Agreement.
(e) In connection with any recapture or termination of the Phoenix
Reinsurance Agreement, PHLVIC, PLIC or their designated third-party
administrator shall assume the administration of the Phoenix Contracts
within twelve (12) months from the date PHLVIC sent the recapture notice
under Section 7.2(b) or the date either PHLVIC or Jefferson National
provides notice to terminate the Phoenix Reinsurance Agreement, as
applicable and the Parties agree that, notwithstanding any other provisions
to the contrary, the termination or recapture, as applicable, under the
Phoenix Reinsurance Agreement shall be effective on the date the
administration of the Phoenix Contracts is assumed by PHLVIC and PLIC or
their designated third-party administrator (the "Conversion Date").
Jefferson National shall use commercially reasonable efforts to convert the
administrative services functions to PHLVIC or such designated third-party
administrator as smoothly as possible during the period between the
recapture notice or the termination notice, as applicable and the Conversion
Date. The Parties agree to cooperate and make every reasonable effort to
effectuate any such conversion or transfer and to complete a conversion or
transfer as soon as reasonably practicable.
Article VIII
Indemnity
Section 8.1 Jefferson National, JNSC and JNFC Indemnity to PLIC and PHLVIC
and Affiliates
(a) Each of Jefferson National, JNFC and JNSC, severally but not jointly,
shall indemnify, defend and hold PLIC, PHLVIC, PEPCO, and each of their
present or former
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directors, members, officers, employees, representatives and any of their
current or former Affiliates to the extent such Affiliate(s) directly
perform or performed services with respect to the Phoenix Contract
(collectively, "Phoenix Indemnitees"), free and harmless from and against
any and all direct losses, claims, demands, liabilities, damages, charges,
payments, costs and expenses, interest and penalties (including the costs of
investigating or defending any alleged losses, claims, demands, liabilities,
damages, charges, payments, costs or expenses and any reasonable counsel
fees incurred in connection therewith) ("Losses") which any Phoenix
Indemnitee may incur under the 1933 Act, the 1934 Act, any other statute or
any rule or regulation thereunder, or under any other Applicable Law or
otherwise,
(i) arising out of or based upon any untrue, or allegedly untrue,
statement of a material fact contained in disclosure documents, the
Phoenix Contract Marketing Materials, or other descriptive materials
relating to the Phoenix Contract to the extent that such materials were
prepared by Jefferson National, or JNSC, or any amendments or
supplements to the foregoing, or the omission, or alleged omission, to
state therein a material fact required to be stated therein or necessary
to make such statement not misleading; provided, however, that Jefferson
National's, JNSC's and JNFC's obligation to indemnify the Phoenix
Indemnitees shall not be deemed to cover any Losses arising out of any
untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information
furnished to Jefferson National, JNFC, JNSC or their counsel by PLIC,
PHLVIC, or PEPCO in writing, for the purpose of and used in the
preparation thereof,
(ii) arising out of or result from the willful misfeasance, bad faith
or negligence of any of Jefferson National, JNSC, their respective
employees, officers, managers, directors or members in the performance
of its duties, or by reason of its reckless disregard of its obligations
and/or duties, under this Agreement, or
(iii) arising out of a breach of or inaccuracy in the representation
and/or warranty of Jefferson National, JNSC or JNFC or any other breach,
nonfulfillment or default in the performance of any of the covenants or
terms of Jefferson National, JNFC, or JNSC contained in this Agreement
or any Ancillary Agreement.
(b) Promptly after receipt by a Phoenix Indemnitee of notice of the
commencement of an investigation, action, claim or proceeding, PLIC and
PHLVIC shall, if a claim for indemnification in respect thereof is to be
made under this section, notify Jefferson National, JNFC and JNSC
(collectively, the "JNL Parties") in writing of the commencement thereof,
although the failure to do so shall not prevent recovery by any Phoenix
Indemnitee, unless the JNL Parties are materially prejudiced thereby. The
JNL Parties shall be entitled to participate at their own expense in the
defense or, if they so elect, to assume the defense of any suit brought to
enforce any such investigation, action, claim or proceeding, but if JNL
Parties elect to assume the defense, such defense shall be conducted by
counsel chosen by the JNL Parties and approved by PLIC and PHLVIC, which
approval shall not be unreasonably withheld. In the event the JNL Parties
elect to assume the defense of any such suit and retain such counsel and
notifies PLIC and PHLVIC of such election, the indemnified defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by them subsequent to the receipt of the JNL Parties'
election. If the JNL Parties do not elect to assume the defense of any such
suit, or in case PLIC and PHLVIC does not, in the exercise of reasonable
judgment,
29
approve of counsel chosen by the JNL Parties, or in case there is a conflict
of interest between any JNL Party and PLIC and PHLVIC or any Phoenix
Indemnitee, the JNL Parties will reimburse the indemnified person or persons
named as defendant or defendants in such suit, for the reasonable fees and
expenses of any counsel retained by PLIC and PHLVIC. Any proposed settlement
or other disposition of such investigation, action, claim, or proceeding
must be approved by the JNL Parties (which approval shall not be
unreasonably withheld) prior to finalizing any such settlement or
disposition. Each JNL Party's indemnification agreement contained in this
Section 8.1 and its representations and warranties in this Agreement shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of a Phoenix Indemnitee, and shall
survive the delivery of any interests under the Phoenix Contract and the
termination of this Agreement subject to applicable statutes of limitations.
This agreement of indemnity will inure exclusively to the Phoenix
Indemnitees and their estates and successors. Each JNL Party agrees promptly
to notify PLIC and PHLVIC of the commencement of any litigation or
proceedings against Jefferson National or any of its current or former
officers, trustees, agents or Affiliates in connection with the issue and
sale of any interests under the Phoenix Contract.
Section 8.2 PLIC and PHLVIC Indemnity to Jefferson National, JNSC and
Affiliates.
(a) Each of PLIC, PHLVIC and PEPCO (the "Phoenix Party") severally but
not jointly, shall indemnify, defend and hold Jefferson National, JNSC, and
each of their present or former directors, members, officers, employees,
representatives, and any of their present or former Affiliates to the extent
such Affiliate(s) directly perform or performed services with respect to the
Phoenix Contract (collectively, "Jefferson National Indemnitees"), free and
harmless from and against any and all Losses which Jefferson National, and
each of the other Jefferson National Indemnitees, may incur under the 1933
Act, the 1934 Act, any other statute (including state "Blue Sky" laws) or
any rule or regulation thereunder, or under any other Applicable Law or
otherwise,
(i) arising out of or based upon any untrue, or allegedly untrue,
statement from PLIC, PHLVIC or PEPCO as applicable of a material fact
contained in disclosure documents, the Phoenix Contract Marketing Materials
or the descriptive materials relating to the Phoenix Contract to the extent
such materials were prepared, or accurately derived from information
provided in writing for the purpose of and used in the preparation thereof,
by PLIC, PHLVIC, or PEPCO, or any amendments or supplements to the
foregoing, or the omission, or alleged omission, to state therein a material
fact required to be stated therein or necessary to make the statement by
PLIC, PHLVIC or PEPCO not misleading; provided, however, that each Phoenix
Party's obligation to indemnify Jefferson National and any of the other
Jefferson National Indemnitees shall not be deemed to cover any Losses
arising out of any untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with
information furnished to the Phoenix Parties or their counsel by Jefferson
National or a Jefferson National Indemnitee in writing for the purpose of
and used in the preparation thereof,
(ii) arising out of or result from the willful misfeasance, bad faith or
negligence of such Phoenix Party, and its employees, officers, managers,
directors, members,
30
brokers or agents in the performance of their duties, or by reason of their
reckless disregard of their obligations and/or duties, under this Agreement,
(iii) arising out of a breach of or inaccuracy in the representation
and/or warranty of such Phoenix Party or any other breach, nonfulfillment or
default in the performance of any of the covenants or terms of such Phoenix
Party contained in this Agreement or any Ancillary Agreement; or
(iv) arising out of the inappropriate marketing, solicitation, or sale of
a Phoenix Contract by PLIC's or PHLVIC's appointed agents.
(b) Promptly after receipt by any Jefferson National Indemnitee of notice
of the commencement of an investigation, action, claim or proceeding,
Jefferson National shall, if a claim for indemnification in respect thereof
is to be made under this section, notify the Phoenix Parties in writing of
the commencement thereof, although the failure to do so shall not prevent
recovery by Jefferson National or any Jefferson National Indemnitee, unless
the relevant Phoenix Party is materially prejudiced thereby. Each Phoenix
Party shall be entitled to participate at their own expense in the defense
or, if they so elect, to assume the defense of any suit brought to enforce
any such investigation, action, claim or proceeding, but if such Phoenix
Party elects to assume the defense, such defense shall be conducted by
counsel chosen by such Phoenix Party and approved by Jefferson National,
which approval shall not be unreasonably withheld. In the event such Phoenix
Party elects to assume the defense of any such suit and retain such counsel
and notify Jefferson National of such election, the indemnified defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by them subsequent to the receipt of such Phoenix Party's
election. If the Phoenix Parties do not elect to assume the defense of any
such suit, or in case Jefferson National does not, in the exercise of
reasonable judgment, approve of counsel chosen by any Phoenix Party, or in
case there is a conflict of interest between any Phoenix Party and Jefferson
National or any Jefferson National Indemnitee, the relevant Phoenix Party
will reimburse the indemnified person or persons named as defendant or
defendants in such suit, for the reasonable fees and expenses of any counsel
retained by Jefferson National and them. Any proposed settlement or other
disposition of such investigation, action, claim, or proceeding must be
approved by the relevant Phoenix Party (which approval shall not be
unreasonably withheld) prior to finalizing any such settlement or
disposition. The Phoenix Parties' indemnification agreement contained in
this Section 8.2 and the Phoenix Parties' representations and warranties in
this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of Jefferson National
or any of the Jefferson National Indemnitees, and shall survive the delivery
of any interests under the Phoenix Contract and the termination of this
Agreement subject to applicable statutes of limitations. This agreement of
indemnity will inure exclusively to Jefferson National's benefit, to the
benefit of each of the Jefferson National Indemnitees and their estates and
successors. PLIC and PHLVIC agree promptly to notify Jefferson National of
the commencement of any litigation or proceedings against the Phoenix
Parties or any of their current or former officers, directors, managers,
members, agents or Affiliates in connection with the issue and sale of any
interests under the Phoenix Contract. PLIC and PHLVIC will require any
selling broker-dealer, in the Phoenix Contract's selling agreements, to
indemnify Jefferson National against losses caused by the willful
misfeasance, bad faith or negligence of such selling broker-dealer and its
registered representatives.
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Section 8.3 Limitation of Liability.
(a) In no event shall any Party hereunder or any of such Party's
Affiliates have any liability under this Agreement, any related agreement,
or otherwise in connection with the transactions contemplated hereby or
thereby for special, speculative, consequential, incidental, punitive, or
indirect damages, except that the foregoing shall not apply to any such
damages payable by and indemnified party to an unaffiliated third party.
(b) Each indemnified party shall be obligated to use its commercially
reasonable efforts to mitigate to the extent reasonably practicable the
amount of any Losses for which it is entitled to seek indemnification
hereunder
Article IX
Term
Section 9.1 Effective Date. This Agreement shall become effective as of the
date hereof (the "Effective Date"). Unless sooner terminated as provided
herein, this Agreement shall continue for an initial term of five (5) years
(the "Initial Term"), and unless terminated, shall automatically renew for
successive one (1) year terms thereafter (each, a "Renewal Term").
Section 9.2 Termination. This Agreement may be terminated (i) immediately
without penalty upon mutual consent of all Parties; (ii) by either PLIC or
PHLVIC, on the one hand, or Jefferson National, on the other hand upon giving
twelve months notice prior to the end of the Initial Term or any subsequent
Renewal Term, (iii) upon the termination of the Phoenix Reinsurance Agreement
whether through recapture or otherwise; (iv) immediately by either Phoenix
Party or JNL Party if the other Party materially breaches this Agreement or any
Ancillary Agreement (provided such material breach is not substantially cured
within sixty (60) days of notice of such breach; or if a petition for
insolvency, rehabilitation, conservation, supervision, liquidation or similar
proceeding is filed by or against such other Party or its statutory
representative in any jurisdiction; or if the other Party becomes subject to a
criminal indictment or information or similar proceedings; (v) by Jefferson
National if PLIC or PHLVIC is downgraded by A.M. Best to a financial strength
rating that is less than A-; or (vi) by either PLIC or PHLVIC, on the one hand,
or Jefferson National, on the other hand upon giving twelve months notice after
its change of control; provided that such twelve-month notice is given within
ninety days of the change in control. For the avoidance of doubt, in the
absence of recapture or termination right exercised by the Parties hereto, any
termination under this Section 9.2 shall mean only a termination with respect
to distribution and sale of new Phoenix Contracts under Article II hereof and
to the extent any Phoenix Contracts are administered by Jefferson National
despite a termination under this Section the provisions set forth in
Section 9.5(a) shall not be terminated.
Section 9.3 Jefferson National Purchase Right. If PLIC or PHLVIC provides
notice to terminate this Agreement pursuant to Section 9.2(ii), Jefferson
National shall have the option to (a) accept such termination in which case the
distribution and marketing of any new Phoenix Contract will terminate; or
(b) acquire the 40% quota share retained by PHLVIC under the Phoenix
Reinsurance Agreement, for a purchase price determined by using the same
economic principles described in Section VII.5 of the Phoenix Reinsurance
Agreement; or (c) force a
32
termination of the Phoenix Reinsurance Agreement. Jefferson National shall
provide written notice to PHLVIC of its intention to exercise one of its
options above within ninety days of receiving PLIC's or PHLVIC's termination
notice under Section 9.2(ii).
Section 9.4 Phoenix Material Adverse Effect.
(a) For purposes of this Agreement, a "Phoenix Material Adverse Effect"
means material adverse tax, regulatory, rating or other effect on PLIC and
PHLVIC (taken as a whole) resulting from the issuance of any new business
under this Agreement by PLIC or PHLVIC, other than such material adverse
effects resulting from a change in general economic or market conditions or
matters affecting, life or annuity business generally. If a Phoenix Material
Adverse Effect has occurred and is continuing, PLIC and PHLVIC may give
written notice of such event to Jefferson National and in such notice, PLIC
and PHLVIC may set forth a termination date for the new sales of the GMWB
rider in the Phoenix Contract.
(b) Upon receiving such notice from PLIC and PHLVIC, Jefferson National
shall choose to either (i) terminate the Phoenix Reinsurance Agreement with
respect to new business and terminate distribution and marketing of any
Phoenix Contract under this Agreement within thirty (30) days of receiving
such notice; provided that upon such termination, PHLVIC and PLIC shall pay
to Jefferson National $1,000,000 on the effective date of the termination
with respect to new business, or (ii) elect to continue new business without
the GMWB rider in the Phoenix Contract and amend the Phoenix Reinsurance
Agreement and this Agreement to change the reinsurance quota share
percentage under the Phoenix Reinsurance Agreement from 60% to 90% within
thirty (30) days of receiving such notice; provided that the expense
allowance payable by PHLVIC under the Phoenix Reinsurance Agreement and the
fees payable by PLIC under Section 1.11(a) shall be correspondingly adjusted
to reflect such change in the reinsurance quota share and PHLVIC and PLIC
shall also pay to Jefferson National $1,000,000 upon the effectiveness of
such amendment.
Section 9.5 Survival of Provisions.
(a) The Parties hereto agree that if this Agreement is terminated under
Section 9.2 or 9.4 but as long as the Phoenix Reinsurance Agreement is still
in effect, the provisions of this Agreement set forth in Articles I, III,
IV, V, VI (except for Section 6.5), VII (except for Section 7.1), VIII and X
and Sections 9.2(i), (iii), (iv) and 9.5 shall survive the termination of
this Agreement and Jefferson National shall retain all right, title and
interest in and to the Jefferson National Marketing Materials upon
termination of this Agreement.
(b) The Parties hereto further agree that if both this Agreement and the
Phoenix Reinsurance Agreement are terminated and all PHLVIC Contracts have
been recaptured, the provisions of this Agreement set forth in Sections
1.12, 6.6, Articles VIII and X and Section 9.5 shall nevertheless survive
such termination and Jefferson National shall retain all right, title and
interest in and to the Jefferson National Marketing Materials upon
termination of this Agreement.
33
Article X
Miscellaneous
Section 10.1 Confidentiality.
(a) PLIC, PHLVIC, and PEPCO agree on behalf of themselves, their
officers, directors, members, employees and representatives, to treat
confidentially and as proprietary information, information relating to the
Phoenix Contract, the contract holders therein and the accounts thereof,
Jefferson National and JNSC and their activities, and not to use such
information for any purpose other than performance of their responsibilities
and duties under this Agreement or as otherwise approved by Jefferson
National in writing.
(b) Jefferson National and JNSC agree on behalf of themselves, their
officers, directors, members, employees and representatives, to treat
confidentially and as proprietary information, information relating to the
Phoenix Contract, the contract holders therein and the accounts thereof,
PLIC, PHLVIC, and PEPCO and their Affiliates, and their activities, acquired
in the course of negotiating and performing this Agreement, and not to use
such information for any purpose other than performance of their
responsibilities and duties under this Agreement or as otherwise approved by
PLIC and PHLVIC in writing.
(c) Each Party agrees that, in furtherance of the purpose of this
Section 10.1, it will hold and ensure that its employees and agents, its
Affiliates and employees and agents of such Affiliates will hold the
information referenced herein in strict confidence, (ii) not give, sell or
disclose such information to its Affiliates or any other third party for any
purposes whatsoever other than as required for the provision of services as
contemplated by this Agreement, and (iii) advise each of its employees who
may be exposed to such information to keep such information confidential. It
is understood that in the event of a breach of this Section 10.1, damages
may not be an adequate remedy, and the other Party shall be entitled to
remedies including, but not limited to injunctive relief to restrain any
breach, threatened or actual, pending the outcome of any litigation,
arbitration or mediation.
(d) In the case of any request or demand for the inspection or disclosure
of such information by another party, the Party receiving such inspection or
disclosure request shall notify such other Party with respect to whose
information such inspection or disclosure request was made, instructions as
to permitting or refusing such inspection or disclosure; provided, however,
a Party may permit the inspection or make such disclosures without the
approval of the other Party to any person in any case where it is advised by
its counsel that it would be exposed to potential liability, loss or damage
resulting from or relating to the failure to do so (the costs of counsel in
considering the matter to be borne by such disclosing Party).
Notwithstanding anything in this Section 10.1 to the contrary, a Party may
disclose that any other Party has instructed it not to permit the inspection
or make the disclosures or otherwise limited or restricted its ability to do
so, as the case may be. Records and information which have become known to
the public through no wrongful act of any person or entity, and information
which was already legally in the possession of any party prior to receipt
thereof, shall not be subject to this Section 10.1.
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(e) Notwithstanding any provision of this Section 10.1 to the contrary,
each Party agrees not to use or disclose nonpublic personal information of
customers and consumers of the Phoenix Contract for any purpose other than
performance of its responsibilities and duties under this Agreement or as
required or permitted by Applicable Law. Each Party agrees to comply with
all federal and state privacy laws applicable to such party, including, to
the extent applicable, Title V of the Xxxxx-Xxxxx-Xxxxxx Act ("GLBA") and
any implementing rules, regulations and authoritative guidelines of any
applicable regulatory agency thereunder.
Section 10.2 Relationship of Parties. Nothing herein shall constitute
Jefferson National, JNSC, or either of their agents, officers, or employees as
agents, officers, or employees of PLIC, PHLVIC, or PEPCO. Nor shall anything
herein constitute PLIC, PHLVIC, PEPCO, or any of their agents, officers, or
employees as agents, officers, or employees of Jefferson National or JNSC.
Jefferson National and JNSC shall have no authority and will not represent
themselves as having any authority with respect to PLIC, PHLVIC, or PEPCO, nor
shall PLIC, PHLVIC, or PEPCO have any authority or represent themselves as
having any authority with respect to Jefferson or JNSC, other than as is
specifically set forth in this Agreement. Each Party is responsible for its own
conduct, for the employment, control and conduct of its brokers, agents and
employees and for injury to such brokers, agents or employees or to others
through its brokers, agents or employees. Each Party assumes full
responsibility for its brokers, agents, employees, officers, directors,
members, representatives, Affiliates, and any third party vendors retained by
such Party in the performance of its duties and obligations under this
Agreement, and for its own compliance and the compliance of each of its
brokers, agents, employees, officers, directors, members, representatives,
Affiliates, and vendors with all Applicable Laws.
Section 10.3 Agreement Not Assignable. Without the prior written consent of
the other Party hereto, no Party may assign this Agreement to any other person;
provided, however, that, upon not less than thirty (30) days prior written
notice, a Party may assign this Agreement in whole, but not in part, to an
Affiliate if, in any such case, said Affiliate shall either automatically by
operation of law or expressly in writing assume all obligations of the
assigning Party as fully as if it had originally been a Party hereto; and
provided further that such Affiliate must possess all necessary ability, power
and authority and financial and other resources for it to perform fully all of
the assigning Party's duties and obligations under this Agreement. Any
assignment in violation of this Section 10.3 shall be null and void. Subject to
the foregoing, this Agreement shall be binding upon, and shall inure to the
benefit of, the legal successors and assigns of the respective Parties hereto,
including, without limitation, any assignment by merger, operation of law,
consolidation, asset transfer, or otherwise.
Section 10.4 Use of Third Party Service Providers. Subject to the terms of
this Agreement, each Party may utilize the services of any third party in
fulfilling its obligations under this Agreement; provided, however, that in
such event, the Party utilizing the services of a third party shall enter into
a contractual arrangement with such third party that prohibits the third party
from disclosing or using any information obtained by it for any purpose other
than to carry out the purposes of this Agreement; and further provided that the
Party retaining and such third party shall remain responsible for such
obligations and be fully responsible for any acts or omissions of such third
party.
35
Section 10.5 Waiver and Amendment. Except as otherwise specifically provided
herein, this Agreement may only be amended by the written consent of the
Parties hereto. The terms of this Agreement shall not be waived, altered,
modified, amended or supplemented in any manner whatsoever except by a written
instrument signed by the Party waiving its rights.
Section 10.6 Governing Law. This Agreement shall be governed by the law of
state of New York, without giving effect to the principles of conflicts of laws
thereof.
Section 10.7 Entire Agreement and Severability. This Agreement (including
the Ancillary Agreements, the other agreements contemplated hereby and thereby,
and the Exhibits hereto and thereto) contains the entire agreement among the
Parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under any present or
future law or if determined by a court of competent jurisdiction to be
unenforceable, and if the rights or obligations of the Parties under this
Agreement will not be materially and adversely affected thereby, such provision
shall be fully severable, and this Agreement will be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement, and the remaining provisions of this Agreement shall remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
Section 10.8 Notice. Any notice required or to be permitted to be given by
either Party to the other shall be in writing and shall be deemed given upon
delivery if delivered personally, upon telephonic or electronic confirmation of
transmission if sent by facsimile or email, upon the third Business Day after
mailing is sent by registered or certified mail, postage prepaid, and upon
receipt if sent by messenger or courier, as follows:
Notice to PLIC, PHLVIC, and PEPCO shall be sent to:
General Counsel
The Phoenix Companies
Attn: Xxxxx Xxxx
Xxx Xxxxxxxx Xxx
XX Xxx 0000
Xxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
with a copy, which shall not constitute notice, to:
Xx. Xxxx X'Xxxxxxx
Senior Vice President
The Phoenix Companies
Xxx Xxxxxxxx Xxx
XX Xxx 0000
Xxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
36
Notice to Jefferson National, JNFC and JNSC shall be sent to:
Jefferson National Financial Corp.
000 Xxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
Facsimile: 000-000-0000
with a copy, which shall not constitute notice, to:
Jefferson National Financial Corp.
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Facsimile: 000-000-0000
Section 10.9 Certain Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "Ancillary Agreements" shall mean collectively, the Phoenix
Reinsurance Agreement and the JNL Reinsurance Agreement.
(b) "Applicable Law" means any domestic or foreign federal, state or
local statute, law, ordinance or code, or any written rules, regulations or
regulatory interpretations issued by any Governmental Authority pursuant to
any of the foregoing, and any order, writ, injunction, directive, judgment
or decree of a court of competent jurisdiction applicable to the Parties
hereto.
(c) "Governmental Authority" means any court, administrative or
regulatory agency or commission, or other federal, state or local
governmental authority or instrumentality, or FINRA or national securities
exchanges.
Section 10.10 Execution and Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original
agreement but such counterparts shall together constitute one and the same
instrument.
Section 10.11 Captions. The captions of this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise effect their construction or effect.
Section 10.12 Submission to Jurisdiction. Each of the Parties hereby
(i) irrevocably submits to the jurisdiction of the state courts of, and the
federal courts located in, the state of New York for the purpose of enforcing
the award or decision in any such proceeding and to the sole and exclusive
jurisdiction of such courts for the purpose of receiving injunctive relief,
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or
37
proceeding is improper or that this Agreement or the subject matter hereof may
not be enforced in or by such court, and (iii) waives and agrees not to seek
any review by any court of any other jurisdiction which may be called upon to
grant an enforcement of the judgment of any such court. Each of the parties
hereto hereby consents to service of process by registered mail at the address
to which notices are to be given. Each Party hereby agrees that its submission
to jurisdiction and its consent to service of process by mail are made for the
express benefit of the other parties hereto. Final judgment against any party
hereto in any such action, suit or proceeding may be enforced in other
jurisdictions by suit, action or proceeding on the judgment, or in any other
manner provided by or pursuant to the laws of such other jurisdiction;
provided, however, that any party hereto may at its option bring suit, or
institute other judicial proceeding for such purpose, in any state or federal
court of the United States or of any country or place where the other party or
its assets, may be found.
Section 10.13 Force Majeure. The Parties hereto shall not be liable for any
failure or delay in the performance of their respective obligations (other than
payment obligations) under this Agreement to the extent such failure or delay
both:
(a) is caused by any of the following: acts of war, terrorism, civil
riots or rebellions, quarantines, embargoes and other similar unusual
governmental action, extraordinary elements of nature or nature or acts of
God; and
(b) could not have been prevented by the non-performing Party's
reasonable precautions or commercially accepted processes, or could not
reasonably be circumvented by the non-performing Party through the use of
substitute services, alternate sources, work around plans or other
reasonable means.
(c) Events meeting both of the criteria set forth in Section 10.13(a) and
10.13(b) are referred to individually and collectively as "Force Majeure
Events." The Parties expressly acknowledge that Force Majeure Events do not
include vandalism, the regulatory acts of governmental authorities, or labor
strikes, or the non-performance by third-parties or Subcontractors relied on
for the delivery of the services to be provided hereunder, unless such
failure or non-performance by a third party or subcontractor is itself
caused by a Force Majeure Event.
(d) Upon the occurrence of a Force Majeure Event, the non-performing
Party shall be excused from any further performance of the affected
obligation(s) for so long as such circumstances prevail, provided that such
party continues to attempt to recommence performance to the greatest extent
possible without delay.
(e) Notwithstanding any other provision of this Section, a Force Majeure
Event that results in failure or substantial delay of the performance by a
Party of its obligations under this Agreement shall obligate such party, if
appropriate, to implement its disaster recovery plan within the time periods
described therein.
(f) If a Force Majeure Event causes a material failure or delay in the
performance of any obligation by Jefferson National, JNSC, or JNFC under
this Agreement for more than thirty (30) consecutive days, at the request of
PHLVIC and PLIC, Jefferson National shall cooperate with PHLVIC and PLIC in
good faith to transition the administrative services of the Phoenix
Contracts to a third party service provider at a fee arrangement as mutually
agreed to by the Parties in good faith.
38
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
a duly authorized officer as of the day and year first above written.
JEFFERSON NATIONAL LIFE INSURANCE JEFFERSON NATIONAL SECURITIES
COMPANY CORPORATION
/s/ Xxxxxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxx
--------------------------------------- --------------------------------------
[Name] Xxxxxxxx X. Xxxxxxxxx [Name] Xxxxx X. Xxxxxx
[Title] President & CEO [Title] President, General Counsel &
Secretary
JEFFERSON NATIONAL FINANCIAL CORP. PHL VARIABLE INSURANCE COMPANY
/s/ Xxxxxxxx X. Xxxxxxxxx /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------------------- --------------------------------------
[[Name] Xxxxxxxx X. Xxxxxxxxx] [Name] Xxxx Xxxxxxx X'Xxxxxxx
[[Title] President & CEO] [Title] Senior Vice President
PHOENIX EQUITY PLANNING CORPORATION PHOENIX LIFE INSURANCE COMPANY
/s/ Xxxx X. Xxxxx (SEAL) /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------------------- --------------------------------------
[Name] Xxxx X. Xxxxx [Name] Xxxx Xxxxxxx X'Xxxxxxx
[Title] Vice President and Secretary [Title] Senior Vice President
39
EXHIBIT A
PHOENIX REINSURANCE AGREEMENT
40
EXHIBIT B
JNL REINSURANCE AGREEMENT
41
Schedule 2.2(a)
Distribution Firms
Firm Annuity Contact Phone# Advisory Contact Phone#
---- ------------------- ------------ ------------------- ------------
LPL Xxxxx Xxxxx 000-000-0000 Xxxxx Xxxxx 000-000-0000
AGE/Wachovia Xxx Xxxxxx Xxx Xxxxxx
Xxxxxx Xxxxxxxxxx Xxxxx Xxx Xxxxxxxx 215-665-6210 Xxxxx Xxxxxxx 000-000-0000
x6052
Xxxxxxx Xxxxx Xxxxx Xxxxx 000-000-0000
Securities America Xxx Xxxxx 800-747-6111 Xxxxxx Xxxx 000-000-0000
JNF had discussions
with Xxxx Xxxxxxx
x2881
RBC Xxxx Xxxxxxxx Xxx Xxxxxxx 000-000-0000 I've heard Xxx
Xxxxx 612.371.7912
Xxxxxxx Xxxxx
UBS
Xxxxxx Xxxxxxx
42
Schedule 3.7(c)
Data Feed
Monthly --
Monthly accounting direct and ceded entries (Greenbook/Bluebook monthly summary)
Monthly Balance Sheet rec support (cash receipts, cash disbursements, bank
recs, among others)
Monthly Separate Account Transfer reconciliation and Due to/Due from Sep
account reconciliation
Monthly Reserve file
Quarterly --
Quarterly state reporting (Sch T, State Page info)
Annually --
Yearly Separate Account financials (split for PLIC and PHLVIC VA monument Sep
accounts, if applicable)
Yearly Sch D, Sch T
Other STAT filing requirements, as needed (Phoenix Valleyforge has Exh of Life
ins, Exh 1, 8, 9, 10 and 11, analysis of inc in reserves)
43
