Exhibit 10.2
Sales and General Agency Agreement
FINAL EXECUTION COPY
SALES AND GENERAL AGENCY AGREEMENT
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This agreement ("Agreement") is entered into as of the Effective Date by
and between PHL Variable Insurance Company ("PHLVIC"), Phoenix Life Insurance
Company ("PLIC"), Phoenix Equity Planning Corporation ("PEPCO") (collectively
referred to as "Phoenix"), Dreyfus Services Organization ("DSO"), MBSC
Securities Corporation ("MBSC") (DSO and MBSC being referred to collectively as
the "Authorized Selling Firm") and Xxxxxxxx Capital Management, Inc. ("LCM").
RECITALS
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WHEREAS, PHLVIC and PLIC are each insurance companies and securities
issuers of the GRIS, an insurance policy offered exclusively to investment
advisory clients of LCM who have established a Xxxxxxxx Investment Strategies
("LIS") account ("LIS Clients");
WHEREAS, LCM sponsors LIS, a discretionary, unified managed account wrap
product;
WHEREAS, the GRIS is a guarantee that is registered as a security with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933 and
deemed to be a group annuity contract for insurance regulatory purposes;
WHEREAS, PEPCO has entered into an underwriting agreement ("Underwriting
Agreement") with PHLVIC and PLIC, pursuant to which PEPCO serves as the
principal underwriter for the distribution of the GRIS;
WHEREAS, PHLVIC, PLIC, PEPCO, MBSC, DSO and LCM have entered into a
strategic alliance agreement ("Strategic Alliance Agreement") relating to the
arrangement whereby PHLVIC and PLIC issue the GRIS policy, LCM manages the LIS
program and Producers offer the GRIS to LIS Clients;
WHEREAS, PHLVIC, PLIC, and PEPCO wish to enter into this Agreement with the
Authorized Selling Firm to market and sell the GRIS;
WHEREAS, MBSC currently is registered as a broker-dealer with the SEC under
the Securities and Exchange Act of 1934 and is a member in good standing of the
Financial Industry Regulatory Authority ("FINRA"), and DSO currently is licensed
as an insurance agency in all fifty states, and is affiliated with MBSC by
ownership or contract with respect to the sale of the GRIS under this Agreement;
WHEREAS, Phoenix desires that the Authorized Selling Firm manage and
supervise the marketing and sales of the GRIS, subject to the terms and
conditions of this Agreement, to LIS Clients;
WHEREAS, certain employees of LCM are duly licensed individuals of the
Authorized Selling Firm for purposes of soliciting sales of the GRIS, subject to
the terms and conditions of this Agreement, to LIS Clients;
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINITIONS
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As used in this Agreement, and in addition to the terms defined in the
background recitals and elsewhere in this Agreement, the following terms shall
have the respective meanings provided below. Capitalized terms used herein and
not otherwise defined herein shall have the meaning set forth in the Strategic
Alliance Agreement.
A. 1933 ACT - The Securities Act of 1933, as amended.
B. 1934 ACT - The Securities Exchange Act of 1934, as amended.
C. ADVISERS ACT - The Investment Advisers Act of 1940, as amended.
D. AFFILIATE - With respect to a person, any other person controlling,
controlled by, or under common control with, such person.
E. AGENT - An individual who is properly licensed as an insurance agent
in any state and jurisdiction where the individual solicits GRIS policies and is
associated with DSO, and is also a Representative.
F. APPLICABLE LAW - Any applicable federal, state and self regulatory
organization law, rule or regulation, and any order or interpretation of any
governmental body, with judgment, injunction or court decree.
G. APPLICATION - Any application, enrollment form, or similar form
approved for use by PHLVIC or PLIC, as applicable, by which a LIS Client applies
for a GRIS.
H. BUSINESS DAY - A day the New York Stock Exchange is open for business.
I. CONTROL - The power to exercise a controlling influence over the
management or policies of a company, unless such power is solely the result of
an official position with such company.
J. DISCLOSURE PACKAGE - Numbered and catalogued packages containing
Applications, the Prospectus, as supplemented, and any Free Writing Prospectuses
that the parties hereto shall hereafter expressly agree in writing to treat as
part of the Disclosure Package.
K. FINRA RULES - The rules and regulations promulgated by the Financial
Industry Regulatory Authority, including, without limitation, all NASD rules,
and New York
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Stock Exchange rules incorporated by FINRA to apply to FINRA members who are
also member of the New York Stock Exchange.
L. FREE WRITING PROSPECTUS - a free writing prospectus, as defined in
Rule 405 under the 1933 Act relating to the GRIS.
M. GRIS - The GRIS shall have the meaning set forth in the Strategic
Alliance Agreement.
N. IAR - An investment adviser representative, as defined in the Advisers
Act, associated with and supervised by an Intermediary.
O. INTERMEDIARY - Registered representatives, investment adviser
representatives, financial advisers and other investment professionals that
provide advice to LIS Clients with respect to the LIS program that are not
Affiliates of LCM.
P. LICENSED SALES ASSISTANT - An individual who is appropriately
registered with FINRA who assists Producer in providing service for the GRIS.
Q. PEPCO FREE WRITING PROSPECTUS - A free writing prospectus, as defined
in Rule 405 under the 1933 Act, that is prepared by PEPCO.
R. PHLVIC FREE WRITING PROSPECTUS - A free writing prospectus, as defined
in Rule 405 under the 1933 Act, that is prepared by PHLVIC.
S. PLIC FREE WRITING PROSPECTUS - A free writing prospectus as defined in
Rule 405 under the 1933 Act, that is prepared by PLIC.
T. PRINCIPAL - An individual who is registered with FINRA as a principal
of MBSC within the meaning of National Association of Securities Dealers
("NASD") Membership and Registration Rule 1021.
U. PRODUCER - A duly licensed individual who sells GRIS and is a licensed
insurance agent of DSO and a registered representative of MBSC and who is
appropriately registered with FINRA and licensed and appointed in accordance
with all applicable insurance laws.
V. PROSPECTUS - The prospectus included within a Registration Statement,
including supplements thereto filed under Rule 424 under the 1933 Act, prepared
by PHLVIC and PLIC from and after the date on which each shall have been filed.
W. REGISTRATION STATEMENT - At any time that this Agreement is in effect,
each currently effective registration statement and each currently effective
post-effective amendment thereto filed with the SEC under the 1933 Act on Form
S-1 or otherwise relating to the GRIS including the Prospectus and financial
statements included in, and all exhibits to, such registration statement or
post-effective amendment, prepared by PHLVIC and PLIC.
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X. REPRESENTATIVE - An individual who is registered with FINRA as a
representative of MBSC within the meaning of NASD Membership and Registration
Rule 1031 and is also an Agent.
Y. ROAD SHOW - A type of offer as defined in Rule 433 under the 1933
Act.
2. APPOINTMENT AND AUTHORIZATION TO SOLICIT SALES
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Subject to the terms and conditions of this Agreement, Phoenix hereby appoints
DSO, as insurance agent, and authorizes MBSC, as broker, to solicit sales of the
GRIS to LIS Clients in all states and other jurisdictions where the GRIS may
lawfully be sold and in which the Authorized Selling Firm is authorized under
all Applicable Law to solicit sales of the GRIS during the term of this
Agreement, provided that there is an effective Registration Statement relating
to the GRIS under the 1933 Act. The Authorized Selling Firm hereby accepts such
appointment and authorization and agrees to use its best efforts to solicit
sales of the GRIS. These two appointments, taken together, constitute the
appointment of the Authorized Selling Firm in the capacities referred to above.
3. MAINTENANCE OF LICENSES AND REGISTRATIONS
-----------------------------------------
Throughout the term of this Agreement, DSO shall be properly licensed as an
insurance agency pursuant to the laws of any state in which it offers the GRIS
and in which such licensing is required by applicable insurance laws or
regulations for the sale of the GRIS. Throughout the term of this Agreement,
MBSC shall properly maintain its registration as a broker-dealer with the SEC
and the states, where required, in which it conducts business and its membership
is in good standing with FINRA. Throughout the term of this Agreement, PEPCO
shall properly maintain its registration as a broker-dealer with the SEC, and
the states, where required, in which it conducts business and its membership in
good standing with FINRA. Throughout the term of this Agreement PHLVIC and PLIC
shall properly maintain any required federal and state securities registrations
or filings and state insurance licenses for the GRIS policies.
4. PRODUCERS
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A. Recruitment of Producers LCM with the concurrence of MBSC and DSO
shall recruit and engage a reasonably sufficient number of Producers in order to
solicit the GRIS in view of the then existing volume of sales of the GRIS.
B. Training of Producers
MBSC is responsible for ensuring that the Producers are trained on (1) the
product features indicated in the specimen contract form of the GRIS, and (2)
standards that MBSC and the Producers have established to use in meeting their
duty to ensure suitable sales of the GRIS. This training shall be in a form and
include content approved by all parties hereto and shall be provided to
Producers by MBSC before they begin to conduct any solicitation activities.
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MBSC agrees to provide the Producers such additional periodic training as all
parties agree may be necessary from time to time.
C. Licensing and Registration of Producers DSO shall be responsible for
the preparation and submission of proper licensing forms and ensure that all
Producers are appropriately licensed as insurance agents in the state(s) where
such Producers will solicit and sell the GRIS. MBSC shall be responsible for the
preparation and submission to FINRA and to any applicable state regulators of
proper Representative registration forms and the assurance that all Producers
and Licensed Sales Assistants are and remain registered as representatives of
MBSC with FINRA and any applicable state regulators.
D. Appointment
LCM with the concurrence of MBSC and DSO shall recommend Producers for
appointment with PHLVIC and PLIC to PEPCO but PHLVIC and PLIC shall retain sole
authority to make appointments and may, by written notice to MBSC and DSO refuse
to permit any Producer to solicit the GRIS. Further, PHLVIC and PLIC may, in
their sole discretion, refuse to renew any such appointment, or terminate any
such appointment, consistent with their duties and responsibilities under
Applicable Law. PHLVIC and PLIC shall be responsible for the preparation and
submission of proper appointment forms and the payment of appointment fees in
those states that require PHLVIC and PLIC to appoint Producers.
E. Supervision
MBSC and DSO shall be responsible for the training and supervision of all
of the Producers who are engaged directly or indirectly in the offer or sale of
the GRIS. MBSC and DSO shall ensure that Producers comply with Applicable Laws
including, but not limited to, FINRA Rules applicable to the GRIS. MBSC shall
establish and maintain procedures to supervise the securities activities of
Producers as required by Applicable Law. DSO shall establish and maintain such
rules and procedures to supervise the insurance activity of its Agents as
required by Applicable Law.
F. Notice of Termination
MBSC and DSO shall promptly notify PEPCO, PHLVIC, and PLIC of each Producer
that has been either terminated or is otherwise no longer authorized to solicit
the GRIS.
5. MARKETING MATERIALS
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A. Preparation Marketing Materials
Materials other than the Registration Statement, Prospectus and Application
("Marketing Materials") may be prepared by the parties hereto and reviewed and
approved by the other parties in writing prior to their use. Each party shall
review and approve Marketing Materials within five business days of receipt.
Phoenix's approval of the Marketing Materials shall be limited to the
information regarding Phoenix and the GRIS and in no way shall this
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approval be deemed an approval of the content regarding LCM or LIS provided in
writing by LCM to Phoenix. MBSC shall ensure that no Producer or Representative
uses any Marketing Materials that have not been reviewed and approved by
Phoenix.
B. Filing of Material
Phoenix and PEPCO shall, as appropriate, be responsible for filing any
Marketing Materials, including, without limitation, any Free Writing
Prospectuses, if required, with the SEC or applicable state regulatory
authorities. Phoenix and PEPCO shall notify each Authorized Selling Firm and LCM
of any comments provided by the SEC or any state regulatory authorities
regarding such material, and shall cooperate in resolving and implementing any
comments, as applicable.
C. Termination of Use of Material
In the event that PEPCO chooses to recall any Marketing Materials or Free
Writing Prospectus, PEPCO shall notify the Authorized Selling Firm and LCM, and
the Authorized Selling Firm shall promptly cease its use and collect any unused
material in their possession and shall cause each Producer to which it has
provided such Marketing Materials or Free Writing Prospectus to promptly cease
using such material and destroy any unused material in their possession.
D. Disclosure Package
PEPCO shall be responsible for furnishing MBSC with the Prospectus and
Application for the GRIS for inclusion in the Disclosure Package, if any, for
use by MBSC and the Producers with respect to the GRIS.
E. Road Shows and Publicity Meetings The parties shall agree in advance
on the scope and content of any written statements or written presentations to
be provided at Road Shows and meeting with the press, securities analysts, other
broker-dealers or members of the public. In the event that the parties do not
agree in advance on the scope and content of any written statement to be made
and an written presentations to be given, no such materials may be used in
connection with a Road Show or meeting with the press, securities analysts,
other broker-dealers or members of the public.
6. SALES ACTIVITIES
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A. Producers shall provide information about the GRIS to prospective GRIS
owners and answer questions about GRIS from prospective GRIS owners.
B. The Authorized Selling Firm, LCM and Producers are authorized to
distribute the Disclosure Package and other material provided by PEPCO.
C. The Authorized Selling Firm shall maintain logs with respect to the
distribution of Disclosure Packages containing the name and address of each
client or prospective client of
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LCM to whom Disclosure Packages are distributed and the number of Disclosure
Packages distributed to each Producer.
D. The Authorized Selling Firm shall provide each of the Producers and
Intermediaries with written procedures, which may include a script, approved by
PEPCO, that outline the permissible activities of the Producers and
Intermediaries.
E. Before selling a GRIS policy to a prospective owner, the Authorized
Selling Firm shall conduct reasonable analysis of the account and a MBSC
Principal shall endorse the sale.
F. Neither Authorized Selling Firm nor LCM shall directly or indirectly
compensate an Intermediary or an IAR, for any referral for the sale of any GRIS
policy.
G. The Authorized Selling Firm and LCM shall transmit completed and
approved Applications for the GRIS that it receives to PHLVIC and PLIC (or to
another entity designated by Phoenix), and any other required documentation as
soon as reasonably possible and no later than two business days following
receipt.
H. All solicitation, sales and servicing activities engaged in by an
Authorized Selling Firm, LCM and its Producers with respect to the GRIS shall be
in compliance with all Applicable Law, including but not limited to FINRA Rules.
I. All statements made regarding the GRIS by the Authorized Selling Firm
or its Producers or by LCM shall be in accord with the Prospectus.
J. The Authorized Selling Firm and LCM acknowledge and agree that Phoenix
has the unconditional right to reject, in whole or in part, any Application or
payment for a GRIS policy in their sole discretion. In the event an Application
is rejected, any payment submitted in connection therewith shall be returned by
the Authorized Selling Firm or LCM to the prospective client. The Authorized
Selling Firm and LCM understand and agree that no sale of the GRIS shall be
executed until it is accepted and approved by PHLVIC or PLIC, as applicable.
K. PEPCO, on behalf of MBSC, shall confirm to each GRIS owner in
accordance with Rule 10b-10 under the 1934 Act the purchase, sale or exchange of
a GRIS and such other transactions as are required by Rule 10b-10 or
administrative interpretations thereunder, NASD Conduct Rule 2320, or by any
other SEC rule or FINRA Rule requiring the delivery of such information. PEPCO,
on behalf of MBSC, shall maintain and preserve such books and records with
respect to such confirmations in conformity with the requirements of Rules 17a-3
and 17a-4 under the 1934 Act to the extent such requirements apply.
L. The Authorized Selling Firm is responsible for ensuring that its
Producers are trained on the product features indicated in the specimen contract
form of the GRIS.
M. No party to this Agreement shall contract with any unaffiliated third
party to carry out any of their responsibilities assumed under this Agreement
without the prior written consent of the other parties.
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N. Each of the parties to this Agreement shall allocate sufficient
technical support, human resources and all other resources reasonably necessary
to carry out its responsibilities and obligations under this Agreement in a
timely manner.
7. COMPLIANCE RESPONSIBILITIES
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A. MBSC represents and warrants that it has established, and will
maintain and enforce, a reasonable system of supervisory control policies and
procedures that test and verify whether its supervisory procedures are
reasonably designed to comply with Applicable Law, including but not limited to,
securities laws and FINRA Rules and amend those supervisory procedures when
necessary. Upon request, the parties shall cooperate with one another in the
event any party needs additional information regarding a GRIS account.
B. DSO represents and warrants that it has established, and will maintain
and enforce, a reasonable system of supervisory control policies and procedures
that test and verify whether its supervisory procedures are reasonably designed
to comply with Applicable Law, including but not limited to, securities laws,
insurance laws, and FINRA Rules and to amend those supervisory procedures when
necessary. Upon request, the parties shall cooperate with one another in the
event any party needs additional information regarding a GRIS account.
8. REPRESENTATIONS AND WARRANTIES OF PHLVIC, PLIC, AND PEPCO
---------------------------------------------------------
A. PEPCO, PHLVIC and PLIC each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that the Registration Statement,
including the Prospectus (and any supplement thereto), complies in all material
respects with the applicable requirements of the 1933 Act and the respective
rules thereunder; the Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading in the light of the circumstances in which they were made; and the
Prospectus (together with any supplements thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that PEPCO, PHLVIC and PLIC
make no representations or warranties as to the information contained in the
Registration Statement or the Prospectus (or any supplement thereto) in reliance
upon and in conformity with information regarding LCM or any of its Affiliates
furnished in writing to PEPCO, PHLVIC or PLIC by LCM.
B. PEPCO, PHLVIC and PLIC each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that the GRIS is exempt from
registration or notice or other filing under, and the offer and sale of the GRIS
complies with the "blue sky" or insurance laws of each state or other
jurisdiction in which the GRIS will be offered and sold; provided however that
PEPCO, PHLVIC and PLIC shall not be required to seek to qualify the offer and
sale of the GRIS or
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obtain any approvals to permit or facilitate the offer or sale of the GRIS in
the States of New York or Maine.
C. PEPCO, PHLVIC and PLIC each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that each PEPCO Free Writing
Prospectus, each PHLVIC Free Writing Prospectus and each PLIC Free Writing
Prospectus, respectively, does not include any information that conflicts with
the information contained in the Registration Statement, including any document
included or incorporated by reference therein and any Prospectus supplement
deemed to be a part thereof that has not been superseded or modified.
D. PEPCO, PHLVIC and PLIC each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been issued
and, to PHLVIC's or PLIC's knowledge, no proceeding for that purpose has been
instituted or threatened by the SEC or by the state securities authority of any
jurisdiction. No order preventing or suspending the use of the Prospectus has
been issued and, to PHLVIC's or PLIC's knowledge, no proceeding for that purpose
has been instituted by the SEC or by the state securities authority of any
jurisdiction.
E. PHLVIC, PLIC and PEPCO each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that each has taken all action
including, without limitation, those necessary under its articles of
incorporation, by-laws and applicable state corporate law, necessary to
authorize the execution, delivery and performance of this Agreement and all
transactions contemplated hereunder.
F. PEPCO represents and warrants to the Authorized Selling Firm and LCM,
on the date hereof and at each time that a GRIS (including additional interests
therein that are issued in connection with increases in the guarantee provided
thereunder) is issued that it is and shall during the term of this Agreement
remain registered as a broker-dealer under the 1934 Act, remain a member in good
standing of FINRA, and remain duly registered under applicable state securities
laws.
G. PHLVIC, PLIC and PEPCO each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that each is, during the term of this
Agreement, in compliance in all material respects with all Applicable Law.
H. PHLVIC, PLIC and PEPCO each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that each has obtained any other
approvals, licenses, authorizations, orders
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or consents which are necessary for it to enter into this Agreement and to
perform its duties hereunder.
I. PEPCO represents and warrants to the Authorized Selling Firm and LCM,
on the date hereof and at each time that a GRIS (including additional interests
therein that are issued in connection with increases in the guarantee provided
thereunder) is issued that it has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Connecticut with
full power and authority to own, lease and operate its properties and conduct
its business in the manner described in its Form BD, is duly qualified to
transact the business of a broker-dealer, and principal underwriter, and is in
good standing, in each state or other jurisdiction where required.
J. PHLVIC represents and warrants to the Authorized Selling Firm and
LCM, on the date hereof and at each time that a GRIS (including additional
interests therein that are issued in connection with increases in the guarantee
provided thereunder) is issued that it has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Connecticut with full power and authority to own, lease and operate their
respective properties and each is in good standing, in each state or other
jurisdiction where required.
K. PLIC represents and warrants to the Authorized Selling Firm and LCM,
on the date hereof and at each time that a GRIS (including additional interests
therein that are issued in connection with increases in the guarantee provided
thereunder) is issued that it has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of New York with full
power and authority to own, lease and operate their respective properties and
each is in good standing, in each state or other jurisdiction where required.
L. PHLVIC, PLIC and PEPCO each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate action by PHLVIC, PLIC and PEPCO, and
when so executed and delivered this Agreement shall be the valid and binding
obligation of each of PHLVIC, PLIC and PEPCO enforceable in accordance with its
terms.
M. PHLVIC, PLIC and PEPCO each represent and warrant to the Authorized
Selling Firm and LCM, on the date hereof and at each time that a GRIS (including
additional interests therein that are issued in connection with increases in the
guarantee provided thereunder) is issued that the consummation of the
transactions contemplated by this Agreement, and the fulfillment of the terms of
this Agreement will not (i) violate any provision of its articles of
incorporation or by-laws (ii) result in a violation or breach of, or constitute
a default or an event of default under, any indenture, mortgage, bond or other
contract, license, agreement, permit, instrument or other commitment or
obligation to which it is a party or by which it is bound or (iii) materially
violate any Applicable Law applicable to it or its business.
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9. OBLIGATIONS OF PHLVIC, PLIC AND PEPCO
-------------------------------------
A. PEPCO, PHLVIC and PLIC shall cause the Prospectus, properly completed,
and any supplement thereto, following review by LCM (with respect to information
furnished in writing to PEPCO, PHLVIC or PLIC by the Authorized Selling Firm,
LCM or any of their Affiliates) to be filed with the SEC pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to MBSC of such timely filings. PEPCO, PHLVIC and
PLIC will immediately (no later than 24 hours after receipt, excluding Saturday
and Sunday) advise MBSC (1) when the Prospectus, and any supplement thereto,
have been filed with the SEC pursuant to Rule 424(b); (2) of any request by the
SEC or its staff for any amendment of the Registration Statement, or for any
supplement to the Prospectus or for any additional information; (3) of the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or of any notice that would prevent its use or the
institution or, to the knowledge of PEPCO, PHLVIC or PLIC, the threatening of
any proceeding for that purpose; and (4) of the receipt by any of PHLVIC, PLIC
or PEPCO of any notification with respect to the suspension of the qualification
of the GRIS for sale in any jurisdiction or the institution or threatening of
any proceeding for such purpose.
B. If PHLVIC or PLIC becomes aware of any event that occurs as a result
of which the Prospectus as then supplemented includes any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or it is necessary to amend the Registration Statement, PHLVIC
and PLIC shall immediately notify MBSC and shall file a new registration
statement or supplement the Prospectus to comply with the 1933 Act or the rules
thereunder.
C. PEPCO shall furnish to MBSC, without charge, signed copies of the
Registration Statement (including exhibits thereto) and a copy of the
Registration Statement (without exhibits thereto) and as many copies of each
Prospectus and any supplement thereto and each PEPCO Free Writing Prospectus,
PHLVIC Free Writing Prospectus and PLIC Free Writing Prospectus as MBSC may
reasonably request.
D. Phoenix agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and filing with the SEC
of the Registration Statement, including the Prospectus, and each PEPCO Free
Writing Prospectus, PHLVIC Free Writing Prospectus and PLIC Free Writing
Prospectus, and each amendment or supplement to any of them; (ii) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, including the Prospectus and each PEPCO Free Writing Prospectus,
PHLVIC Free Writing Prospectus and PLIC Free Writing Prospectus, and all
amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the GRIS; (iii)
the preparation, printing, authentication, issuance and delivery of certificates
for the GRIS; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the GRIS; (v)
the registration of the GRIS under the 1933 Act; (vi) any registration or
qualification for offer and sale of the GRIS under the securities or blue sky
laws of the states; (vii) any filings required to be made with FINRA; (viii) the
transportation and other expenses incurred by or on behalf of PEPCO
representatives in connection with presentations to prospective purchasers of
the GRIS; (ix) the fees and expenses of PEPCO's accountants and the fees and
expenses of counsel for PEPCO; (x) the Master Group
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Annuity Contracts; and (xi) all other costs and expenses incident to the
performance of its obligations hereunder.
E. Each Phoenix entity shall maintain all registrations, licenses,
memberships, approvals, orders and consents necessary to carry out its
obligations hereunder during the term of this Agreement. Each Phoenix entity
shall promptly notify Authorized Selling Firm in writing upon the lapse,
termination without renewal, suspension, revocation or cancellation (without
replacement) of any such registration, license, membership, approval, order or
consent.
F. Each Phoenix entity shall promptly inform Authorized Selling Firm of
any of the following of which it becomes aware: any violation of Applicable Law
by its associated persons that would impact its ability to fulfill the terms and
conditions of this Agreement or that relates to the GRIS; any complaint or
allegation by a GRIS policy owner; and any regulatory examination or allegation
concerning the GRIS or the activities of each Phoenix entity or MBSC (or their
associated persons) with respect to the GRIS.
G. Each Phoenix entity shall carry out its obligations under this
Agreement in compliance with all Applicable Law, including the rules of the SEC
or FINRA Rules.
10. REPRESENTATIONS AND WARRANTIES OF MBSC
--------------------------------------
MBSC represents and warrants to Phoenix, on the date hereof and at each
time that MBSC sells a GRIS:
A. MBSC has taken all action including, without limitation, those
necessary under its articles of incorporation, by-laws and applicable state
corporate law, necessary to authorize the execution, delivery and performance of
this Agreement and all transactions contemplated hereunder.
B. MBSC is and shall, during the term of this Agreement, remain
registered as a broker-dealer under the 1934 Act, remain a member in good
standing of FINRA, and remain duly registered under applicable state securities
laws.
C. MBSC is, and shall, during the term of this Agreement be, in
compliance in all material respects with all Applicable Law.
D. MBSC has obtained any other approvals, licenses, authorizations,
orders or consents which are necessary for it to enter into this Agreement and
to perform its duties hereunder.
E. MBSC has adopted an anti-money laundering compliance program that
satisfies the requirements of Applicable Law and it will promptly notify PEPCO
if an inspection by the appropriate regulatory authorities of its anti-money
laundering compliance program identifies any material deficiency and will
promptly remedy any such material deficiency.
F. MBSC has been duly organized and is validly existing as a corporation
in good standing under the laws of New York with full power and authority to
own, lease and operate its properties and conduct its business in the manner
described in its Form BD, is duly qualified to
- 12 -
transact the business of a broker-dealer, and solicit sales of the GRIS, and is
in good standing, in each state or other jurisdiction where required.
G. The execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have been duly authorized by all necessary
corporate action by MBSC, and when so executed and delivered this Agreement
shall be the valid and binding obligation of MBSC enforceable in accordance with
its terms.
H. The consummation of the transactions contemplated by this Agreement,
and the fulfillment of the terms of this Agreement will not (i) violate any
provision of the articles of incorporation or by-laws of MBSC, (ii) result in a
violation or breach of, or constitute a default or an event of default under,
any indenture, mortgage, bond or other contract, license, agreement, permit,
instrument or other commitment or obligation to which it is a party or by which
it is bound or (iii) materially violate any Applicable Law applicable to it or
its business.
11. REPRESENTATIONS AND WARRANTIES OF DSO
-------------------------------------
DSO represents and warrants to Phoenix on the date hereof and at each time
that DSO sells a GRIS:
A. DSO has taken all action including, without limitation, those
necessary under its certificate of incorporation, by-laws and applicable state
corporate law, necessary to authorize the execution, delivery and performance of
this Agreement and all transactions contemplated hereunder.
B. DSO is, and shall during the term of this Agreement be, in compliance
in all material respects with Applicable Law.
C. DSO is and shall during the term of this Agreement remain licensed as
an insurance agency in all states and jurisdictions where licenses are required
by Applicable Law.
D. DSO has obtained any other approvals, licenses, authorizations, orders
or consents which are necessary for it to enter into this Agreement and to
perform its duties hereunder.
E. DSO has been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware with full power and
authority to own, lease and operate its properties and conduct its business in
the manner described in its articles of incorporation, is duly qualified to
transact the business of an insurance agency and solicit sales of the GRIS, and
is in good standing, in each state or other jurisdiction where required.
F. The execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have been duly authorized by all necessary
corporate action by DSO, and when so executed and delivered this Agreement shall
be the valid and binding obligation of DSO enforceable in accordance with its
terms.
G. The consummation of the transactions contemplated by this Agreement,
and the fulfillment of the terms of this Agreement will not (i) violate any
provision of the certificate of incorporation or by-laws of DSO, (ii) result in
a violation or breach of, or constitute a default or
- 13 -
an event of default under, any indenture, mortgage, bond or other contract,
license, agreement, permit, instrument or other commitment or obligation to
which it is a party or by which it is bound or (iii) materially violate any
Applicable Law applicable to it or its business.
12. OBLIGATIONS OF THE AUTHORIZED SELLING FIRM AND LCM
--------------------------------------------------
A. The Authorized Selling Firm shall maintain all registrations,
licenses, memberships, approvals, orders and consents necessary to carry out its
obligations hereunder during the term of this Agreement. An Authorized Selling
Firm shall promptly notify Phoenix in writing upon the lapse, termination
without renewal, suspension, revocation or cancellation (without replacement) of
any such registration, license, membership, approval, order or consent relating
to LIS or GRIS.
B. The Authorized Selling Firm and LCM shall promptly inform Phoenix of
any of the following of which it becomes aware: any violation of Applicable Law
by its associated persons that would impact its ability to fulfill the terms and
conditions of this Agreement or that relates to the GRIS; any complaint or
allegation by a GRIS policy owner; and any regulatory examination or allegation
concerning the GRIS or the activities of the Authorized Selling Firm, LCM or
Phoenix (or their associated persons) with respect to the GRIS.
C. The Authorized Selling Firm shall carry out its obligations under this
Agreement in compliance with all Applicable Law, including, but not limited to,
the rules of the SEC and FINRA Rules.
D. If there occurs an event or development as a result of which LCM
becomes aware that the Disclosure Package would include an untrue statement of a
material fact regarding LCM or LIS or would omit to state a material fact
regarding LCM or LIS necessary in order to make the statements therein, in light
of the circumstances then prevailing, not misleading, LCM shall promptly notify
Phoenix so that any use of the Disclosure Package may cease until it is amended
or supplemented.
E. The Authorized Selling Firm shall cause each of its Producers to limit
solicitation of Applications for the GRIS to states and other jurisdictions
where the GRIS has been approved and where the Producers maintain all necessary
registrations and licenses required under applicable state securities and
insurance laws. The Authorized Selling Firm shall notify Phoenix if any Producer
ceases to be a representative of MBSC and/or no longer maintains all
registrations and licenses required under applicable state securities and
insurance laws.
F. The Authorized Selling Firm or its designated Affiliate is responsible
for performing background checks on each Producer except with respect to
insurance licensing and to his or her appointment with PHLVIC and PLIC. Such
background checks shall comply with all applicable regulations of the
departments of insurance and securities in the states in which the Producer will
solicit and sell the GRIS, and with the requirements of FINRA.
G. The Authorized Selling Firm and LCM shall ensure that all of their
officers, Representatives, agents, employees and associated persons who have
access to customer funds or securities, continue to be covered by blanket
fidelity bonds, including coverage for larceny and embezzlement, issued by a
reputable bonding company. These bonds shall be maintained at the
- 14 -
Authorized Selling Firm's or LCM's expense and shall be, at least, of the form,
type and amount required under FINRA Rules. Phoenix may require evidence,
satisfactory to it, that such coverage is in force and the Authorized Selling
Firm or LCM shall give prompt written notice to Phoenix of any notice of
cancellation or change of coverage.
H. The Authorized Selling Firm and LCM agree to pay all costs and
expenses incurred in carrying out their respective obligations under this
Agreement, including: expenses associated with the licensing, registration, and
training of Producers involved in the solicitation of the GRIS.
13. INDEMNIFICATION
---------------
A. By Phoenix
Each of PHLVIC, PLIC and PEPCO shall, jointly and severally, indemnify
and hold harmless each of the Authorized Selling Firm, LCM, their Affiliates,
and each of their respective officers, directors, employees, representatives,
successors, and permitted assigns (collectively, the "LCM Indemnitees"), from
and against any and all losses, claims, damages, liabilities, judgments, costs
and expenses, including reasonable attorney fees and costs of investigation
(collectively, "Loss" or Losses"), to which any LCM Indemnitee may become
subject, relating to or arising from any of the following:
I. any untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in light of the circumstances in
which they were made, contained in any Registration Statement,
Prospectus, PEPCO Free Writing Prospectus, PHLVIC Free Writing
Prospectus or PLIC Free Writing Prospectus, except that PHLVIC, PLIC
and PEPCO shall not be liable in any case to the extent such Losses
arise out of, or are based upon, an untrue statement or omission made
in reliance solely upon information regarding the Authorized Selling
Firm, LCM or any of their Affiliates provided by LCM in writing to
PHLVIC, PLIC or PEPCO;
II. any untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, in light of the
circumstances in which they were made, contained in any Marketing
Materials or other materials contained in a Disclosure Package (other
than the Registration Statement, Prospectus or Application), if such
Marketing Materials or other materials contained in a Disclosure
Package (other than the Registration Statement, Prospectus or
Application) were prepared by Phoenix or any of its Affiliates; except
that PHLVIC, PLIC and PEPCO shall not be liable in any case to the
extent such Losses arise out of, or are based upon, an untrue
statement or omission made in reliance solely upon information
regarding the Authorized Selling Firm, LCM or any of their Affiliates
provided by LCM in writing to PHLVIC, PLIC or PEPCO;
III. any material breach by Phoenix, PEPCO, or any of their respective
officers, directors, employees, representatives, agents, successors,
or permitted
- 15 -
assigns of any provision of this Agreement, including, but not limited
to, any material breach of any representation or warranty made by
Phoenix or PEPCO in this Agreement;
IV. a material violation of Applicable Law by any of PHLVIC, PLIC or
PEPCO; provided, however, that none of PHLVIC, PLIC or PEPCO shall owe
indemnification for Losses related to a material violation of
Applicable Law arising out of or based upon reliance by any of PHLVIC,
PLIC, PEPCO or any of their respective Affiliates upon information
about any of the Authorized Selling Firm, LCM or any Affiliate thereof
provided by the Authorized Selling Firm or LCM in writing to any of
PHLVIC, PLIC or PEPCO; or
V. PEPCO's distribution of GRIS policies and/or its activities as
broker-dealer with respect to the GRIS.
This indemnification shall be in addition to any liability that
Phoenix may otherwise have; provided, however, that no person shall be entitled
to indemnification pursuant to this provision if such loss, claim, damage or
liability is due to the willful misfeasance, bad faith, gross negligence or
reckless disregard of duty by the person seeking indemnification.
B. By LCM
LCM shall indemnify and hold harmless each of PHLVIC, PLIC, PEPCO,
their Affiliates, and each of their respective officers, directors, employees,
representatives, successors, and permitted assigns (collectively, the "PHL
Indemnitees") from and against any and all Losses to which to which any LCM
Indemnitee may become subject, relating to or arising from any of the following:
I. the acts or omissions of the Authorized Selling Firm or LCM or
any of their employees or Producers while acting on behalf of the
Authorized Selling Firm, LCM or Phoenix in connection with this
Agreement;
II. any untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in light of the circumstances in
which they were made, contained in any Registration Statement or
Prospectus, in each case only to the extent that such untrue statement
or omission is made in reliance solely upon information regarding the
Authorized Selling Firm, LCM or any of its Affiliates provided by LCM
in writing to PHLVIC, PLIC or PEPCO;
III. any untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, in light of the
circumstances in which they were made regarding LIS, LCM or the
Authorized Selling Firm contained in any Marketing Materials or other
materials contained in a Disclosure Package (other than the
Registration Statement, Prospectus or Application), if such Marketing
Materials or other materials contained in a Disclosure Package (other
than the Registration
- 16 -
Statement, Prospectus or Application) were prepared by LCM or any of
its Affiliates;
IV. any material breach by the Authorized Selling Firm, LCM or any of
their respective officers, directors, employees, representatives,
agents, successors, or permitted assigns of any provision of this
Agreement, including, but not limited to, any material breach of any
representation or warranty made by the Authorized Selling Firm or LCM
in this Agreement;
V. a material violation of Applicable Law by any of the Authorized
Selling Firm, LCM or a Producer; provided, however, that none of the
Authorized Selling Firm or LCM shall owe indemnification for Losses
related to a material violation of Applicable Law arising out of or
based upon reliance by any of the Authorized Selling Firm, LCM or any
of their respective Affiliates upon information about any of PHLVIC,
PLIC or PEPCO or any Affiliate thereof provided by PHLVIC, PLIC or
PEPCO in writing to the Authorized Selling Firm or LCM;
VI. DSO's activities as insurance agent relating to the GRIS; or
VII. MBSC's solicitation of sales of GRIS policies.
This indemnification shall be in addition to any liability that an
Authorized Selling Firm or LCM may otherwise have; provided, however, that no
person shall be entitled to indemnification pursuant to this provision if such
loss, claim, damage or liability is due to the willful misfeasance, bad faith,
gross negligence or reckless disregard of duty by the person seeking
indemnification.
C. Process
After receipt by a person entitled to indemnification ("Indemnified
Party") under this Section 13 of this Agreement of notice of the commencement of
any action, if a claim in respect thereof is to be made against any person
obligated to provide indemnification under this Section ("Indemnifying Party"),
the Indemnified Party shall notify the Indemnifying Party in writing of the
commencement thereof as soon as practicable thereafter, provided that the
omission to so notify the Indemnifying Party shall not relieve the Indemnifying
Party from any liability under this Section 13 of this Agreement, except to the
extent that the omission results in a failure of actual notice to the
Indemnifying Party and the Indemnifying Party is damaged solely as a result of
the failure to give such notice. The Indemnifying Party, upon the request of the
Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (1) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (2) the
named parties to any such proceeding (including any impleaded parties) include
the Indemnifying Party and the Indemnified Party and representation of the
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The Indemnifying Party shall not be
- 17 -
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Party shall indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment if
required by the terms of this Agreement.
14. ARBITRATION
-----------
A. All controversies, claims, or disputes arising out of or relating to
this Agreement, or the breach hereof, including matters relating to formation,
shall be settled by arbitration by the American Arbitration Association in
accordance with its Commercial Arbitration Rules and Title 9 of the U.S. Code.
B. The arbitrators shall be disinterested. The number of arbitrators
shall be three, one of whom shall be appointed by Phoenix and one of whom shall
be appointed by the Authorized Selling Firm and LCM, and the third of whom shall
be selected by mutual agreement of the first two arbitrators, or by the
administering authority if the first two arbitrators do not arrive at a mutual
agreement within thirty (30) days of the selection of the second arbitrator.
C. The place of arbitration shall be New York, New York.
D. A decision of a majority of the arbitrators shall be final and binding
and there shall be no appeal therefrom, unless (i) the decision was procured by
corruption, fraud or other undue means; (ii) there was evident partiality by the
arbitrator appointed as a neutral or corruption in any of the arbitrators or
misconduct prejudicing the rights of any party; or (iii) the arbitrators
exceeded their powers. The arbitrators shall issue a written opinion in support
of the arbitration award.
E. The arbitrators shall have no authority to award punitive damages or
any other damages not measured by the prevailing party's actual damages, and may
not, in any event, make any ruling, finding or award that does not conform to
the terms and conditions of the Agreement.
F. Each party shall be responsible for the costs and expenses incurred by
such party, including attorneys, although the cost of arbitration, including the
fees of the arbitrators, shall be borne equally by Phoenix, on the one hand, and
Authorized Selling Firm and LCM, on the other; provided, however, that the panel
of arbitrators may determine to award fees and costs, including attorney fees,
to the prevailing party.
G. Any party may seek injunctive relief from the arbitrators to maintain
the status quo until such time as the arbitration award is rendered or the
controversy is otherwise resolved.
H. Judgment upon the award rendered by the arbitrators may be entered in
the courts specified in Section 17 below.
15. RELATIONSHIP OF PARTIES
-----------------------
Each of Phoenix and their Affiliates, on the one hand, and each of the LCM,
Authorized Selling Firm and their Affiliates, on the other, shall be deemed to
be an independent contractor as
- 18 -
to the others for all purposes. This Agreement shall not be construed (1) to
create the relationship of employer and employee among the parties hereto or
between any party and any of the officers, directors, employees, or
representatives of any other party, (2) to create a partnership or joint venture
among the parties hereto, or (3) to authorize any party to act as a general or
special agent of any other, except as may be specifically set forth herein.
Specifically, and without limiting the foregoing, the Authorized Selling Firm
and LCM shall not, without the express written consent of Phoenix: make, waive,
alter, change or discharge any provision(s) of the GRIS; discharge any contract
in the name of Phoenix; waive a forfeiture; extend the time for making any
payment or other monies due under the GRIS; institute, prosecute or maintain any
legal proceedings on behalf of Phoenix; accept service of process on behalf of
Phoenix; make, accept or endorse notes, or endorse checks payable to Phoenix;
incur any expense or liability on behalf of Phoenix; offer to pay or pay,
directly or indirectly, any rebate of premium or any other inducement not
specified in the Prospectus; incur indebtedness on behalf of Phoenix; hold the
Producers out nor permit the Producers to hold themselves out as employees of
Phoenix; or alter or substitute the forms which PHLVIC or PLIC may prescribe for
use in connection with the GRIS.
16. NO THIRD-PARTY BENEFICIARIES
----------------------------
This Agreement is solely among the parties hereto and is not intended to
create any right or legal relationship, express or implied, among the parties
hereto or any of their respective Affiliates, officers, directors, employees,
agents, representatives, successors or permitted assigns, on the one hand, and
any third party, including any Certificate Owner or other person covered under a
GRIS, on the other hand; provided, however, that the LCM Indemnitees and the PHL
Indemnitees are expressly intended to be third-party beneficiaries under this
Agreement.
17. NOTICES
-------
Except as set forth in this paragraph, all notices hereunder shall be made
in writing and shall be effective upon delivery, which shall be made (1) by hand
delivery, (2) by registered or certified United States mail, postage prepaid
with return receipt requested (3) by a nationally-recognized overnight courier
service to the addresses set forth below, or to such other address as any party
may request by giving written notice to the other parties. A party may also
provide notice by electronic means (such as email or facsimile) or telephone in
cases when immediate notice is required so long as the party giving notice
delivers separate written notice to be with 24 hours pursuant to Sections 16(1)
or 16(3).
If to any of PHLVIC, PLIC or PEPCO:
Xxxxxxxx X. XxXxx
Vice President
Life and Annuity Counsel
Phoenix Life Insurance Company
Xxx Xxxxxxxx Xxx
XX Xxx 0000
Xxxxxxxx, XX 00000-0000
With a simultaneous copy that shall not constitute notice under this section to:
- 19 -
Xxxxxxx X. Xxxxxx
Debevoise & Xxxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
If to any of MBSC, DSO or LCM:
Xxxx Xxxxxxxx
Managing Counsel
Xxxxxxxx Capital Management, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxx
Legal Counsel
Xxxxxxxx Capital Management, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Xxxxxxxx XxXxxxxxxx
Assistant General Counsel
MSBC Securities Corporation
Legal Department
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a simultaneous copy that shall not constitute notice under
this section to:
Xxxxxx X. Xxxxx
Drinker Xxxxxx & Xxxxx LLP
18th and Cherry Sts.
Xxxxxxxxxxxx, XX 00000
18. JURISDICTION
------------
This Agreement shall be construed and its provisions interpreted under and
in accordance with the internal laws of the state of New York, without giving
effect to principles of conflict or choice of laws of that or any other
jurisdiction. The parties hereto shall submit to the jurisdiction of the courts
of the State of New York and the federal courts in the Southern District of New
York.
19. REGULATION
----------
This Agreement shall be subject to the provisions of the 1933 Act, 1934 Act
and the Advisers Act, and the regulations thereunder and the FINRA Rules, from
time to time in effect.
- 20 -
20. SEVERABILITY
------------
If any provision of this Agreement is held invalid, illegal, unenforceable,
or in conflict with the law of any jurisdiction, such provision shall be
enforced to the extent permitted under Applicable Law, and the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
21. COUNTERPARTS
------------
This Agreement may be executed in two or more counterparts, each of which
taken together shall constitute one and the same instrument. 22. SECTION AND
OTHER HEADINGS The headings in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
23. TERM OF AGREEMENT
-----------------
A. This Agreement shall continue until it is terminated.
B. This Agreement may be terminated in the following manners:
I. By any party, without cause, upon ninety (90) days notice to the
other parties.
II. By any party, immediately, if the other party materially breaches
this Agreement and does not cure such breach within sixty (60) days of
being provided written notice of such breach by the non-breaching
party. III. By any party, immediately, if another party is placed in
receivership or conservatorship or other proceedings pursuant to which
it is substantially prevented from continuing to engage in the lines
of business relevant to the subject matter hereof.
IV. By any party, immediately, if another party becomes a debtor in
bankruptcy, whether voluntary or involuntary, or is the subject of an
insolvency, rehabilitation, or delinquency proceeding.
V. By any party, immediately, if PEPCO or MBSC ceases to be
registered as a broker-dealer under the 1934 Act, is suspended as a
member of FINRA, or otherwise ceases to remain a member in good
standing of FINRA.
VI. By any party, immediately, if DSO ceases to be insurance licensed
in all states or jurisdictions where such licenses are required by
Applicable Laws;
VII. By any party, immediately, if another party becomes subject to a
criminal indictment or information or similar proceedings.
- 21 -
VIII. By any party, immediately, if PHLVIC or PLIC ceases to issue the
GRIS for any reason or if PEPCO or an Affiliate cease to serve as the
principal underwriter for the GRIS.
IX. By any party, immediately, upon an assignment or transfer of this
Agreement that does not comply with the provisions of Section 23 of
this Agreement.
X. By any party, if either of the Master Group Annuity Contracts
issued to LCM is terminated.
C. Notwithstanding any termination of this Agreement, the parties hereto
shall continue to service customers that have already purchased the GRIS policy.
D. Following the earlier of notice of termination being given by a party
or termination, no party shall (and shall ensure that their employees do not)
criticize, denigrate or speak adversely of, the others to clients or customers
or in any public forum or in any manner likely to result in public disclosure,
except to the extent required by Applicable Law and then only after consultation
with the others to the greatest extent possible in order to maintain goodwill
for each of the parties.
E. All provisions of this Agreement concerning arbitration and
indemnification, shall survive the termination of this Agreement.
24. ASSIGNMENT
----------
This Agreement shall be binding on and shall inure to the benefit of the
respective successors and assigns of the parties hereto, provided that no party
shall assign this Agreement or any rights or obligations hereunder without the
prior written consent of the other parties. A Change of Control, as defined in
Section 18.01.2 of the Strategic Alliance Agreement, shall be considered an
assignment under this Section 23.
25. AMENDMENT
---------
No change may be made to the terms or provisions of this Agreement except
by written agreement signed by the parties hereto.
26. LIMITATION OF LIABILITY
-----------------------
In no event will any party to this Agreement be responsible to any other
party for any incidental, indirect, consequential, special, punitive or
exemplary damages of any kind arising from this Agreement, including without
limitation, lost revenues, loss of profits or loss of business. The parties
agree that losses and damages arising under and/or covered by Section 14 shall
be subject to this limitation.
- 22 -
27. RIGHTS, REMEDIES, ETC. ARE CUMULATIVE
-------------------------------------
The rights, remedies, and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies, and obligations,
at law or in equity, which the parties hereto are entitled to under Applicable
Law.
28. WAIVER
------
The failure by any party to insist upon strict compliance with any
condition of this Agreement shall not be construed as a waiver of such
condition. Waiver by one party to this Agreement of any obligation of another
party to this Agreement does not constitute a waiver of any further or other
obligation of such party.
29. ENTIRE AGREEMENT
----------------
This Agreement, the other Transaction Documents, and the Indemnification
Agreement between the parties, effective as of the Effective Date (the
"Indemnification Agreement") constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and thereof, and supersede any
and all prior oral or written understandings, agreements or negotiations,
between or among the parties with respect to the subject matter hereof and
thereof. No prior writings by or among the parties with respect to the subject
matter hereof and thereof may be used by any party in connection with the
interpretation of any provision of this Agreement, the Indemnification
Agreement, or the other Transaction Documents. In the event of a conflict
between this Agreement and the Memorandum of Understanding, the terms of the
Memorandum of Understanding shall control.
30. CONSTRUCTION
------------
The parties hereto have participated, directly or indirectly, in the
negotiations and preparation of this Agreement. In no event shall this Agreement
be construed more or less stringently against any party by reason of another
party being construed as the principal drafting party hereto.
IN WITNESS WHEREOF, each party hereto represents that the officer signing
this Agreement on the party's behalf is duly authorized to execute this
Agreement; and the parties hereto have caused this Agreement to be duly executed
by such authorized officers on the date specified above.
- 23 -
PHL VARIABLE LIFE INSURANCE COMPANY
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
PHOENIX LIFE INSURANCE COMPANY
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
PHOENIX EQUITY PLANNING CORPORATION
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
- 24 -
PHL VARIABLE LIFE INSURANCE COMPANY
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
PHOENIX LIFE INSURANCE COMPANY
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
PHOENIX EQUITY PLANNING CORPORATION
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
- 24 -
PHL VARIABLE LIFE INSURANCE COMPANY
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
PHOENIX LIFE INSURANCE COMPANY
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
PHOENIX EQUITY PLANNING CORPORATION
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
- 24 -
MBSC SECURITIES CORPORATION
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
DREYFUS SERVICES ORGANIZATION, INC.
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
XXXXXXXX CAPITAL MANAGEMENT, INC.
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
- 25 -
MBSC SECURITIES CORPORATION
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
DREYFUS SERVICES ORGANIZATION, INC.
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
-----------------------------------
TITLE
XXXXXXXX CAPITAL MANAGEMENT, INC.
By: ----------------------------------- (SEAL)
SIGNATURE
-----------------------------------
PRINT NAME
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TITLE
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MBSC SECURITIES CORPORATION
By: ----------------------------------- (SEAL)
SIGNATURE
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TITLE
DREYFUS SERVICES ORGANIZATION, INC.
By: ----------------------------------- (SEAL)
SIGNATURE
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PRINT NAME
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TITLE
XXXXXXXX CAPITAL MANAGEMENT, INC.
By: ----------------------------------- (SEAL)
SIGNATURE
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PRINT NAME
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TITLE
- 25 -
