Exhibit
10.1


 


MASTER AGREEMENT


 


AMONG


 


GENERAL ELECTRIC
COMPANY,


 


GENERAL ELECTRIC
CAPITAL CORPORATION,


 


GEI, INC.,


 


GE FINANCIAL
ASSURANCE HOLDINGS, INC.


 


AND


 


GENWORTH
FINANCIAL, INC.


 


Dated
                  ,
2004


 

















 


TABLE
OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS

  	
   

  
	
  1.1

  	
  Certain
  Definitions

  	
   

  
	
  1.2

  	
  Other Terms

  	
   

  
	
  ARTICLE II

  	
  THE SEPARATION

  	
   

  
	
  2.1

  	
  Transfer of
  Assets; Assumption of Liabilities; Consideration

  	
   

  
	
  2.2

  	
  Genworth Assets

  	
   

  
	
  2.3

  	
  Genworth
  Liabilities

  	
   

  
	
  2.4

  	
  Termination of Agreements

  	
   

  
	
  2.5

  	
  DISCLAIMER
  OF REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  2.6

  	
  Governmental
  Approvals and Consents; Delayed Transfer Assets and Liabilities

  	
   

  
	
  2.7

  	
  Novation of Assumed
  Genworth Liabilities

  	
   

  
	
  2.8

  	
  Novation of
  Liabilities other than Genworth Liabilities

  	
   

  
	
  2.9

  	
  European Creditor Business

  	
   

  
	
  ARTICLE III

  	
  INTERCOMPANY TRANSACTIONS
  AS OF THE CLOSING DATE

  	
   

  
	
  3.1

  	
  Time and
  Place of Closing

  	
   

  
	
  3.2

  	
  Reinsurance, Reorganization and Transaction
  Documents

  	
   

  
	
  3.3

  	
  Amended
  and Restated Certificate of Incorporation and Amended and Restated Bylaws

  	
   

  
	
  3.4

  	
  Transfers of Assets and
  Assumption of Liabilities

  	
   

  
	
  3.5

  	
  The Initial Public Offering
  and the Concurrent Offerings

  	
   

  
	
  3.6

  	
  Rescission

  	
   

  
	
  3.7

  	
  European
  Transfers

  	
   

  
	
  (b) If the UK Transfer Plan has not taken
  effect by December 31, 2004, GE and Genworth shall cause all of the
  outstanding shares of capital stock of FACL promptly thereafter to be
  transferred to Genworth.

  	
   

  
	
  3.8

  	
  Additional
  Tax Matters Agreement

  	
   

  
	
  ARTICLE IV

  	
  FINANCIAL
  AND OTHER INFORMATION

  	
   

  
	
  4.1

  	
  Annual Financial
  Information

  	
   

  
				



 


i

















 


	
  4.2

  	
  Quarterly Financial
  Information

  	
   

  
	
  4.3

  	
  GE’s
  Operating Reviews

  	
   

  
	
  4.4

  	
  General
  Financial Statement Requirements

  	
   

  
	
  4.5

  	
  Twenty
  Percent Threshold

  	
   

  
	
  4.6

  	
  GE Public
  Filings

  	
   

  
	
  4.7

  	
  GE
  Annual Statements

  	
   

  
	
  4.8

  	
  Fifty Percent Threshold

  	
   

  
	
  4.9

  	
  Accountants’
  Reports

  	
   

  
	
  4.10

  	
  Agreement
  for Exchange of Information; Archives

  	
   

  
	
  4.11

  	
  Ownership of Information

  	
   

  
	
  4.12

  	
  Compensation
  for Providing Information

  	
   

  
	
  4.13

  	
  Record
  Retention

  	
   

  
	
  4.14

  	
  Liability

  	
   

  
	
  4.15

  	
  Other
  Agreements Providing for Exchange of Information

  	
   

  
	
  4.16

  	
  Production
  of Witnesses; Records; Cooperation

  	
   

  
	
  4.17

  	
  Privilege

  	
   

  
	
  ARTICLE V

  	
  RELEASE; INDEMNIFICATION

  	
   

  
	
  5.1

  	
  Release of Pre-Closing
  Claims

  	
   

  
	
  5.2

  	
  General
  Indemnification by Genworth

  	
   

  
	
  5.3

  	
  General Indemnification
  by GE

  	
   

  
	
  5.4

  	
  Registration
  Statement Indemnification

  	
   

  
	
  5.5

  	
  Contribution

  	
   

  
	
  5.6

  	
  Indemnification
  Obligations Net of Insurance Proceeds and Other Amounts, On an After-Tax
  Basis

  	
   

  
	
  5.7

  	
  Procedures
  for Indemnification of Third Party Claims

  	
   

  
	
  5.8

  	
  Additional
  Matters

  	
   

  
	
  5.9

  	
  Remedies
  Cumulative; Limitations of Liability

  	
   

  
	
  5.10

  	
  Survival
  of Indemnities

  	
   

  
	
  ARTICLE VI

  	
  OTHER AGREEMENTS

  	
   

  
	
  6.1

  	
  Further
  Assurances

  	
   

  
				



 


ii

















 


	
  6.2

  	
  Confidentiality

  	
   

  
	
  6.3

  	
  Insurance
  Matters

  	
   

  
	
  6.4

  	
  Allocation of Costs
  and Expenses

  	
   

  
	
  6.5

  	
  Covenants
  Against Taking Certain Actions Affecting GE

  	
   

  
	
  6.6

  	
  No Violations

  	
   

  
	
  6.7

  	
  Registration
  Statements

  	
   

  
	
  6.8

  	
  Charter
  Provision

  	
   

  
	
  6.9

  	
  Litigation and
  Settlement Cooperation

  	
   

  
	
  6.10

  	
  Continuation of
  Certain Arrangements

  	
   

  
	
  6.11

  	
  Future Intercompany
  Transactions

  	
   

  
	
  6.12

  	
  Use
  of Restricted Marks; Certain Commercial Arrangements

  	
   

  
	
  6.13

  	
  Committees

  	
   

  
	
  6.14

  	
  Bridge Loan

  	
   

  
	
  6.15

  	
  GE Policies

  	
   

  
	
  ARTICLE VII

  	
  DISPUTE RESOLUTION

  	
   

  
	
  7.1

  	
  General
  Provisions

  	
   

  
	
  7.2

  	
  Consideration by
  Senior Executives

  	
   

  
	
  7.3

  	
  Mediation

  	
   

  
	
  7.4

  	
  Arbitration

  	
   

  
	
  ARTICLE VIII

  	
  MISCELLANEOUS

  	
   

  
	
  8.1

  	
  Corporate Power;
  Fiduciary Duty

  	
   

  
	
  8.2

  	
  Governing Law

  	
   

  
	
  8.3

  	
  Survival
  of Covenants

  	
   

  
	
  8.4

  	
  Force Majeure

  	
   

  
	
  8.5

  	
  Notices

  	
   

  
	
  8.6

  	
  Severability

  	
   

  
	
  8.7

  	
  Entire
  Agreement

  	
   

  
	
  8.8

  	
  Assignment;
  No Third-Party Beneficiaries

  	
   

  
	
  8.9

  	
  Public
  Announcements

  	
   

  
				



 


iii

















 


	
  8.10

  	
  Amendment

  	
   

  
	
  8.11

  	
  Rules
  of Construction

  	
   

  
	
  8.12

  	
  Counterparts

  	
   

  



 


iv

















 


EXHIBITS


 


	
  A

  	
  Form of Transition
  Services Agreement

  
	
  B

  	
  Form of Registration
  Rights Agreement

  
	
  C

  	
  Form of Tax Matters
  Agreement

  
	
  D

  	
  Form of Employee
  Matters Agreement

  
	
  E

  	
  Form of Transitional
  Trademark License Agreement

  
	
  F

  	
  Form of Intellectual
  Property Cross License Agreement

  
	
  G

  	
  Form of Outsourcing
  Services Separation Agreement

  
	
  H

  	
  Form of European
  Transition Services Agreement

  
	
  I

  	
  Form of Investment
  Management Agreements

  
	
  J

  	
  Form of Viking
  Agreement

  
	
  K

  	
  Form of Liability and
  Portfolio Management Agreement

  
	
  L

  	
  Form of Transition
  Matters Agreement

  
	
  M

  	
  Form of UK Transfer
  Plan

  
	
  N

  	
  Form of French
  Transfer Plan

  
	
  O

  	
  Form of Derivatives
  Management Services Agreement

  
	
  P

  	
  Form of European Tax
  Matters Agreements

  
	
  Q

  	
  Form of Framework
  Agreement

  
	
  R

  	
  Form of Mortgage
  Services Agreement

  
	
  S

  	
  Form of UFLIC ESG
  Services Agreement

  
	
  T

  	
  French Transfer
  Agreement

  
	
  U

  	
  Form of Capital
  Maintenance Agreement

  
	
  V

  	
  Form of JLIC Recapture
  Agreement

  
	
  W

  	
  Form of Long-Term Care
  Retrocession Agreement

  
	
  X

  	
  Form of Medicare
  Supplement Reinsurance Agreement

  
	
  Y

  	
  Form of Structured
  Settlement Annuity Reinsurance Agreements

  
	
  Z

  	
  Form of Variable Annuity
  Reinsurance Agreements

  
	
  AA

  	
  Form of Trust
  Agreements

  
	
  BB

  	
  Form of Business
  Services Agreement

  
	
  CC

  	
  Form of Genworth
  Contingent Note

  
	
  DD

  	
  Form of Genworth
  Promissory Note

  
	
  EE

  	
  Plan of Divestiture

  
	
  FF

  	
  FACL Reinsurance
  Agreement

  
	
  GG

  	
  FACL Services Agreement

  
	
  HH

  	
  FICL Reinsurance
  Agreement

  
	
  II

  	
  FICL Services Agreement

  
	
  JJ

  	
  Form of French
  Reinsurance Agreement

  
	
  KK

  	
  French Share Transfer
  Agreement

  
	
  LL

  	
  Form of Amended and
  Restated Certificate of Incorporation

  
	
  MM

  	
  Form of Amended and
  Restated Bylaws

  
	
   

  	
   

  



 


v

















 


SCHEDULES


 


	
  Schedule 1.1

  	
  Discontinued Businesses

  
	
  Schedule 1.1(a)

  	
  Supply and Vendor
  Contracts

  
	
  Schedule 1.1(b)

  	
  GEFAHI Contracts

  
	
  Schedule 1.1(e)

  	
  Genworth Contracts

  
	
  Schedule 2.1(a)

  	
  Plan of Separation

  
	
  Schedule 2.1(b)

  	
  Delayed Transfer Assets

  
	
  Schedule 2.2(a)(i)

  	
  Genworth Assets

  
	
  Schedule 2.2(a)(ii)(B)

  	
  Capital Stock GE
  Subsidiaries

  
	
  Schedule 2.2(a)(ii)(C)

  	
  Capital Stock GE
  Affiliates

  
	
  Schedule 2.2(b)(i)

  	
  Excluded Assets

  
	
  Schedule 2.2(b)(ii)

  	
  Excluded Contracts

  
	
  Schedule 2.3(a)(i)

  	
  Genworth Liabilities

  
	
  Schedule 2.3(b)(iv)

  	
  Excluded Liabilities

  
	
  Schedule 2.4(b)(ii)

  	
  Continuing Agreements

  
	
  Schedule 2.4(b)(iii)

  	
  GE Guarantees

  
	
  Schedule 2.9

  	
  European Creditor
  Business Entities

  
	
  Schedule 3.2(d)

  	
  JLIC Surplus Notes

  
	
  Scheudle 3.2(g)

  	
  Dividends

  
	
  Schedule 4.1

  	
  Annual Corporate
  Reporting Data

  
	
  Schedule 4.2(a)

  	
  First and Second
  Quarter Corporate Reporting Data

  
	
  Schedule 4.2(b)

  	
  Third Quarter Corporate
  Reporting Data

  
	
  Schedule 4.3

  	
  FP&A Reports

  
	
  Schedule 4.8

  	
  Monthly Financial
  Information

  
	
  Schedule 5.2(d)

  	
  Transaction Documents —
  Genworth Indemnification

  
	
  Schedule 5.3(c)

  	
  Transaction Documents —
  GE Indemnification

  
	
  Schedule 6.3

  	
  Insurance Coverage

  
	
  Schedule 6.5(b)

  	
  GE Contracts

  
	
  Schedule 6.10

  	
  Continuation of Certain
  Arrangements

  
	
  Schedule 6.12(b)(i)(B)

  	
  Business Activities

  
	
  Schedule 7.1

  	
  Transaction Documents —
  Dispute Resolution

  



 


vi

















 


MASTER AGREEMENT


 


MASTER AGREEMENT, dated
            , 2004
(this “Agreement”), among General Electric Company, a New York
corporation (“GE”), General Electric Capital Corporation, a Delaware
corporation (“GECC”), GEI, Inc., a Delaware corporation (“GEI”),
GE Financial Assurance Holdings, Inc., a Delaware corporation (“GEFAHI”,
and collectively with GE, GEI and GECC, the “GE Parties”), and Genworth
Financial, Inc., a Delaware corporation (“Genworth”).  Certain terms used in this Agreement are
defined in Section 1.1.


 


W I T N E S S E T H:


 


WHEREAS, the board[s] of
directors of [GE] [and GECC] [has] [have] determined that it is in the best interests
of GE[, GECC] and [its] [their respective] stockholders to divest the Genworth
Group into a separate business, and the board of directors of GECC has adopted
the Plan of Divestiture for the purpose of divesting a controlling interest in
the stock of Genworth;


 


WHEREAS, Genworth has
been incorporated solely for these purposes and has not engaged in activities
except in preparation for its corporate reorganization and the sale of its
stock;


 


WHEREAS, in furtherance
of the foregoing, the board[s] of directors of [GE] [and GECC] and the board of
directors of Genworth have determined that it is appropriate and desirable to
transfer the Genworth Assets to Genworth and its Subsidiaries and to cause
Genworth and certain of its Subsidiaries designated by Genworth to assume the
Genworth Liabilities, all as more fully described in this Agreement and the
Transaction Documents;


 


WHEREAS, the board of
directors of GECC has further determined that it is appropriate and desirable
to divest (i) a portion of its interest in the stock of Genworth through the
Initial Public Offering registered under the Securities Act, (ii) all of its
interest in the Genworth Equity Units and (iii) all of its interest in the
Series A Preferred Stock, concurrently with the closing of the Separation and
the other transactions contemplated by this Agreement, and the board of
directors of Genworth has further determined that it is appropriate and
desirable to facilitate the Initial Public Offering;


 


WHEREAS, pursuant to the
Plan of Divestiture, GECC plans to dispose of additional stock of Genworth so
that within two years following the Initial Public Offering GECC will own in
the aggregate less than 50% of the outstanding stock of Genworth; and


 


WHEREAS, it is
appropriate and desirable to set forth the principal corporate transactions
required to effect the Separation and certain other agreements that will,
following the consummation of the Initial Public Offering and the Concurrent
Offerings, govern certain matters relating to the Separation and the Initial
Public Offering and the relationship of GE, Genworth and their respective
Subsidiaries.


 


1

















 


NOW, THEREFORE, in
consideration of the premises and the representations, warranties, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereby agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


1.1                                 Certain Definitions.  For purposes of this Agreement, the
following terms shall have the meanings specified in this Section 1.1:


 


“Action” means any
demand, action, claim, dispute, suit, countersuit, arbitration, inquiry,
proceeding or investigation by or before any federal, state, local, foreign or
international Governmental Authority or any arbitration or mediation tribunal.


 


“Affiliate” (and,
with a correlative meaning, “affiliated”) means, with respect to any
Person, any direct or indirect subsidiary of such Person, and any other Person
that directly, or through one or more intermediaries, controls or is controlled
by or is under common control with such first Person; provided, however,
that from and after the Closing Date, no member of the Genworth Group shall be
deemed an Affiliate of any member of the GE Group for purposes of this
Agreement and the Transaction Documents and no member of the GE Group shall be
deemed an Affiliate of any member of the Genworth Group for purposes of this
Agreement and the Transaction Documents. 
As used in this definition, “control” (including with correlative
meanings, “controlled by” and “under common control with”) means
possession, directly or indirectly, of power to direct or cause the direction
of management or policies or the power to appoint and remove a majority of
directors (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).


 


“AML” means
American Mayflower Life Insurance Company of New York, a New York insurance
company.


 


“Applicable Accounting
Method” means the applicable accounting method by which GE is required, in
accordance with GAAP, to account for its investment in Genworth (namely, on a
consolidated basis, under the equity method or under the cost method).


 


“Assets” means,
with respect to any Person, the assets, properties and rights (including
goodwill) of such Person, wherever located (including in the possession of
vendors or other third parties or elsewhere), whether real, personal or mixed,
tangible, intangible or contingent, in each case whether or not recorded or
reflected or required to be recorded or reflected on the books and records or
financial statements of such Person, including the following:


 


(a)                                  all
accounting and other books, records and files whether in paper, microfilm,
microfiche, computer tape or disc, magnetic tape or any other form;


 


2

















 


(b)                                 all
apparatus, computers and other electronic data processing equipment, fixtures,
machinery, equipment, furniture, office equipment, automobiles, trucks,
vessels, motor vehicles and other transportation equipment and other tangible
personal property;


 


(c)                                  all
interests in real property of whatever nature, including easements, whether as
owner, mortgagee or holder of a Security Interest in real property, lessor,
sublessor, lessee, sublessee or otherwise;


 


(d)                                 except
for the capital stock referred to in Section 2.2(a)(ii)(B) and Section 2.2(a)(ii)(C),
all interests in any capital stock or other equity interests of any Subsidiary
or any other Person, all bonds, notes, debentures or other securities issued by
any Subsidiary or any other Person, all loans, advances or other extensions of
credit or capital contributions to any Subsidiary or any other Person and all
other investments in securities of any Person;


 


(e)                                  all
license agreements, leases of personal property, open purchase orders for
supplies, parts or services and other contracts, agreements or commitments;


 


(f)                                    all
deposits, letters of credit and performance and surety bonds;


 


(g)                                 all
written technical information, data, specifications, research and development
information, engineering drawings, operating and maintenance manuals, and
materials and analyses prepared by consultants and other third parties;


 


(h)                                 all
domestic and foreign intangible personal property, patents, copyrights, trade
names, trademarks, service marks and registrations and applications for any of
the foregoing, mask works, trade secrets, inventions, designs, ideas,
improvements, works of authorship, recordings, other proprietary and
confidential information and licenses from third Persons granting the right to
use any of the foregoing;


 


(i)                                     all
computer applications, programs and other software, including operating
software, network software firmware, middleware, design software, design tools,
systems documentation and instructions;


 


(j)                                     all
cost information, sales and pricing data, customer prospect lists, supplier
records, customer and supplier lists, customer and vendor data, correspondence
and lists, product literature, artwork, design, formulations and
specifications, quality records and reports and other books, records, studies,
surveys, reports, plans and documents;


 


(k)                                  all
prepaid expenses, trade accounts and other accounts and notes receivables;


 


(l)                                     all
rights under contracts or agreements, all claims or rights against any Person
arising from the ownership of any Asset, all rights in connection with any bids
or offers and all claims, choses in action or similar rights, whether accrued
or contingent;


 


3

















 


(m)                               all
rights under insurance policies and all rights in the nature of insurance,
indemnification or contribution;


 


(n)                                 all
licenses, permits, approvals and authorizations which have been issued by any
Governmental Authority;


 


(o)                                 cash
or cash equivalents, bank accounts, lock boxes and other deposit arrangements;
and


 


(p)                                 interest
rate, currency, commodity or other swap, collar, cap or other hedging or
similar agreements or arrangements.


 


“Bridge Loan”
means the short-term loan to be obtained by Genworth in the amount of $2.4
billion, the proceeds of which will be used to repay the Genworth Promissory
Note.


 


“Brookfield” means
Brookfield Life Assurance Company Limited, a Bermuda insurance company.


 


“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by Law to close.  Any event the scheduled occurrence of which
would fall on a day that is not a Business Day shall be deferred until the next
succeeding Business Day.


 


“Business Services
Agreement” means the Business Services Agreement substantially in the form
attached hereto as Exhibit BB, by and between UFLIC and GNA.


 


“Capital Maintenance
Agreement” means the Capital Maintenance Agreement in substantially the
form attached as Exhibit U, between GE Capital and UFLIC.


 


“Class A Common Stock”
means the Class A common stock, $0.001 par value per share, of Genworth.


 


“Class B Common Stock”
means the Class B common stock, $0.001 par value per share, of Genworth.


 


“Code” means the
Internal Revenue Code of 1986, as amended.


 


“Concurrent Offerings”
means the registered public offerings by GEFAHI of Genworth Equity Units and
Series A Preferred Stock, each such offering to be made concurrently with the
Initial Public Offering.


 


“Consents” means
any consent, waiver or approval from, or notification requirement to, any third
parties.


 


4

















 


“Corporate Reporting
Data” means the Corporate Data Repository (CDR) submissions and data
requirements, the Data Request (DR) and Web Reporting Interface (WRI)
submissions and data requirements, and the Management’s Discussion and Analysis
(MD&A) and Annual Report (A/R) submissions and data requirements, as set
forth in detail on Schedules 4.1 and 4.2(a) and (b).


 


“Debt Registration
Statement” means the registration statement on Form S-1 filed under the
Securities Act (No. 333-        )
pursuant to which the Genworth Senior Notes will be registered.


 


“Delayed Transfer
Assets” means any Genworth Assets that are expressly provided in this
Agreement or any Transaction Document to be transferred after the Closing Date.


 


“Delayed
Transfer Legal Entities” means Financial Assurance Company Limited, Financial Insurance Company
Limited, Consolidated Insurance Group Limited, GE Financial Assurance Compania
de Seguros y Reaseguros de Vida SA and GE Financial Insurance Compania de
Seguros y Reaseguros SA.


 


“Delayed Transfer
Liabilities” means any Genworth Liabilities that are expressly provided in
this Agreement or any Transaction Document to be assumed after the Closing
Date.


 


“Derivatives
Management Services Agreement” means the Derivatives Management Services
Agreement in substantially the form attached hereto as Exhibit O, to be
entered into by and among GELAAC, FHL, First Colony, GECA, Genworth, GNA and
GECC.


 


“Employee Matters
Agreement” means the Employee Matters Agreement in substantially the form
attached hereto as Exhibit D, to be entered into by and between GE and
Genworth.


 


“Equity Units
Registration Statement” means the registration statement on Form S-1
filed under the Securities Act (No.
333-                )
pursuant to which the Genworth Equity Units issued to GEFAHI and sold by GEFAHI
will be registered.


 


 “ERISA” means the Employee Retirement
Income Security Act of 1974, as amended.


 


“European Creditor
Business” means the business of those entities set forth in Schedule 2.9
of this Agreement and the payment protection business of Vie Plus S.A.


 


“European Tax Matters
Agreements” means
[          ].


 


“European Transition
Services Agreement” means the Transition Services Agreement in
substantially the form attached hereto as Exhibit H, to be entered into
by and between Financial Insurance Group Services Limited and
                                      .


 


5

















 


“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect at the
time that reference is made thereto.


 


“Excluded Employee
Liabilities” shall have the meaning set forth in the Employee Matters
Agreement.


 


“FACL” means Financial Assurance Company
Limited.


 


“FACL
Reinsurance Agreement” means the Reinsurance Agreement, dated
                      ,
2004, by and between FACL and Viking as attached as Exhibit FF.


 


“FACL
Services Agreement” means the Services Agreement, dated
                      ,
2004, by and between FACL and Financial Insurance Group Services Limited as
attached as Exhibit GG .


 


“FHL” means
Federal Home Life Insurance Company, a Virginia insurance company.


 


“FICL
Reinsurance Agreement” means the Reinsurance Agreement, dated
                        ,
2004, by and between Financial Insurance Company Limited and Viking as attached
as Exhibit HH.


 


“FICL
Services Agreement” means the Services Agreement, dated
                        ,
2004, by and between Financial Insurance Company Limited and Financial
Insurance Group Services Limited as attached hereto as Exhibit II.


 


“FINCL” means Financial New Life Company
Limited.


 


“Financial Closing
Date” means, as to each fiscal quarterly or annual period of any member of
the Genworth Group, the last Saturday in such fiscal period.


 


“Firm Public Offering
Shares” means the Class A Common Stock sold in the Initial Public Offering,
other than Class A Common Stock sold as a result of exercise of the
Over-Allotment Option by the Underwriters, and the Series A Preferred Stock
sold in a Concurrent Offering.


 


“First Colony”
means First Colony Life Insurance Company, a Virginia insurance company.


 


“Force Majeure”
means, with respect to a party, an event beyond the control of such party (or
any Person acting on its behalf), which by its nature could not have been
foreseen by such party (or such Person), or, if it could have been foreseen,
was unavoidable, and includes, without limitation, acts of God, storms, floods,
riots, fires, sabotage, civil commotion or civil unrest, interference by civil or
military authorities, acts of war (declared or undeclared) or armed hostilities
or other national or international calamity or one or more acts of terrorism or
failure of energy sources.


 


6

















 


“FP&A Reports”
means the SRO data requirements, the Session I and Session II data requirements
and the Op Plan data requirements, as set forth in detail on Schedule 4.3.


 


“Framework Agreement”
means the Framework Agreement between GEFA International Holdings, Inc. and General
Electric Capital Corporation, in substantially the form attached hereto as Exhibit Q.


 


“French
Reinsurance Agreement” means the Reinsurance Agreement, dated
                        ,
2004, by and between Vie Plus S.A. and RD Plus S.A. as attached as Exhibit
JJ.


 


“French
Share Transfer Agreement” means the Share Transfer Agreement in
substantially the form attached hereto as Exhibit  KK, to be entered into by and between GE Capital SNC and
          .


 


“French Transfer
Agreement” means the Business Transfer Agreement in substantially the form
attached hereto as Exhibit T to be entered into by and between Vie Plus
S.A. and [a member of the Genworth Group to be designated by Genworth prior to
the Closing Date].


 


“French Transfer Plan”
means the Agreement on Transfer of a Portfolio of Insurance Contracts in
substantially the form attached as Exhibit N to be entered into by and
between Vie Plus S.A. and FINCL.


 


“GAAP” means
United States generally accepted accounting principles.


 


“GE Group” means
GE and each Person (other than any member of the Genworth Group) that is an
Affiliate of GE immediately after the Closing.


 


“GECA” means
General Electric Capital Assurance Company, a Delaware insurance company.


 


“GECLANY” means GE
Capital Life Assurance Company of New York, a New York insurance company.


 


“GEFA” means the
GE Financial Assurance operating unit within GE Capital.


 


“GELAAC” means GE
Life and Annuity Assurance Company, a Virginia insurance company.


 


“Genworth Balance
Sheet” means Genworth’s unaudited Pro Forma Combined Statement of Financial
Position as of December 31, 2003 included in the IPO Registration
Statement.


 


“Genworth Business”
means: the businesses of (a) the members of the Genworth Group; (b) GEFAHI; (c)
the Delayed Transfer Legal Entities and (d) those 


 


7

















 


terminated, divested or
discontinued businesses of the members of Genworth Group, other than those
listed on Schedule 1.1.


 


“Genworth Common Stock”
means the Class A Common Stock and the Class B Common Stock.


 


“Genworth Contingent
Note” means the $550 million Subordinated Contingent Promissory Note
payable by Genworth to GEFAHI, in substantially the form attached hereto as Exhibit
CC.


 


“Genworth Contracts”
means the following contracts and agreements to which GE or any of its
Affiliates is a party or by which GE or any of its Affiliates or any of their
respective Assets is bound, whether or not in writing, except for any such
contract or agreement that is contemplated to be retained by GE or any member
of the GE Group pursuant to any provision of this Agreement or any Transaction
Document:


 


(a)                                  any
supply or vendor contracts or agreements listed or described on Schedule 1.1(a)
and any other supply or vendor contracts or agreements entered into after the
date hereof and prior to the Closing Date that relate primarily to the Genworth
Business;


 


(b)                                 any
contract or agreement entered into in the name of GEFAHI that is not listed on Schedule 1.1(b);


 


(c)                                  any
contract or agreement entered into in the name of, or expressly on behalf of,
any division, business unit or member of the Genworth Group;


 


(d)                                 any
contract or agreement, including any joint venture agreement, that relates
primarily to the Genworth Business;


 


(e)                                  the
contracts, agreements and other documents listed or described on Schedule 1.1(e);


 


(f)                                    any
guarantee, indemnity, representation, warranty or other Liability of any member
of the Genworth Group or the GE Group in respect of (i) any other Genworth
Contract, (ii) any Genworth Liability or (iii) the Genworth Business; and


 


(g)                                 any
contract or agreement that is otherwise expressly contemplated pursuant to this
Agreement or any of the Transaction Documents to be assigned to Genworth or any
member of the Genworth Group.


 


“Genworth Equity Units”
means $600 million in aggregate amount of Equity Units to be sold by GEFAHI.


 


“Genworth Group”
means Genworth, each Subsidiary of Genworth immediately after the Closing and
each other Person that is either controlled directly or indirectly by Genworth
immediately after the Closing; provided, that any Delayed Transfer Asset that
is transferred to Genworth at any time following the Closing shall, to 


 


8

















 


the extent applicable, be
considered part of the Genworth Group for all purposes of this Agreement.


 


“Genworth Promissory
Note” means the $2.4 billion Promissory Note payable by Genworth to GEFAHI,
in substantially the form attached hereto as Exhibit DD.


 


“Genworth Senior Notes”
means approximately $1.9 billion aggregate principal amount of senior notes to
be issued by Genworth, the proceeds of which will be used to repay
approximately $1.9 billion of the Bridge Loan.


 


“GNA” means GNA
Corporation.


 


“Governmental
Approvals” means any notice, report or other filing to be made with, or any
consent, registration, approval, permit or authorization to be obtained from,
any Governmental Authority.


 


“Governmental
Authority”  means any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any governmental authority,
agency, department, board, commission or instrumentality whether federal,
state, local or foreign (or any political subdivision thereof), and any
tribunal, court or arbitrator(s) of competent jurisdiction.


 


“Group” means the
GE Group or the Genworth Group, as the context requires.


 


“Information”
means information, whether or not patentable or copyrightable, in written,
oral, electronic or other tangible or intangible forms, stored in any medium,
including studies, reports, records, books, contracts, instruments, surveys,
discoveries, ideas, concepts, know-how, techniques, designs, specifications,
drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data,
computer data, disks, diskettes, tapes, computer programs or other software,
marketing plans, customer names, communications by or to attorneys (including
attorney-client privileged communications), memoranda and other materials
prepared by attorneys or under their direction (including attorney work
product), and other technical, financial, employee or business information or
data.


 


“Initial Public
Offering” means the initial public offering of Genworth Common Stock.


 


“Insurance Policies”
means the insurance policies written by insurance carriers, including those
affiliated with GE and any self-insurance arrangements, pursuant to which
Genworth or one or more of its Subsidiaries (or their respective officers or
directors) will be insured parties after the Closing Date.


 


“Insurance Proceeds”
means those monies: (a) received by an insured from an insurance carrier; (b)
paid by an insurance carrier on behalf of the insured; or (c) received
(including by way of set off) from any third party in the nature of insurance,


 


9

















 


contribution or
indemnification in respect of any Liability; in any such case net of any
applicable premium adjustments (including reserves and retrospectively rated
premium adjustments) and net of any costs or expenses incurred in the
collection thereof.


 


“Intellectual Property
Cross License Agreement” means the Intellectual Property Cross License
Agreement in substantially the form attached hereto as Exhibit F, to be
entered into by and between GE and Genworth.


 


“Investment Management
Agreements” means (i) the Amended and Restated Investment Management
Agreements in substantially the form attached hereto as Exhibit I, to be
entered into by and between GE Asset Management Limited, on the one hand, and
certain members of the Genworth Group, on the other hand, (ii) the Investment
Management Agreement in substantially the form attached hereto as Exhibit I,
to be entered into by and between GE Asset Management Limited and GNA, (iii)
the Investment Management and Services Agreements in substantially the form
attached hereto as Exhibit I to be entered into by and between GE Asset
Management Limited, on the one hand, and
                              ,
                        
and
                      ,
on the other hand; (iv)
                        ;
(v)
                          ;
and (vi)
                                                                                        .


 


“IP Application”
means any application for the registration, acquisition or perfection of
intellectual property rights, including patent applications, copyright
applications and trademark applications.


 


“IPO Registration
Statement” means the registration statement on Form  S-1 filed under the Securities Act (No.
333-112009) pursuant to which the Genworth Common Stock to be issued to GEFAHI
and sold by GEFAHI in the Initial Public Offering will be registered.


 


“IRS” means the
United States Internal Revenue Service.


 


“JLIC Recapture
Agreement” means the Recapture Agreement in substantially the form attached
as Exhibit V, to be entered into by and between Jamestown Life Insurance
Company and GECA.


 


“Law” means any
federal, state, local or foreign law (including common law), statute, code,
ordinance, rule, regulation or other requirement enacted, promulgated, issued
or entered by a Governmental Authority.


 


“Liabilities”
means any debt, loss, damage, adverse claim, liability or obligation of any
Person (whether direct or indirect, known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or
due or to become due, and whether in contract, tort, strict liability or
otherwise), and including all costs and expenses relating thereto.


 


“Liability and
Portfolio Management Agreement” means the Liability and Portfolio
Management Agreement in substantially the form attached hereto as Exhibit K



 


10

















 


by and between Trinity
Plus Funding Company, LLC and Genworth Financial Asset Management, LLC and the
related agreements listed in that Exhibit.


 


“Licensed Marks”
shall have the meaning specified in the Transition Trademark Agreement.


 


“Long-Term Care
Retrocession Agreements” means the Retrocession Agreements in substantially
the form attached hereto as Exhibit W, to be entered into by and between
UFLIC, on the one hand, and each of GECA and GECLANY, on the other hand.


 


“Medicare Supplement
Reinsurance Agreement” means the Coinsurance Agreement in substantially the
form attached hereto as Exhibit X, to be entered into by and between
UFLIC and FHL.


 


“Mortgage Services
Agreement” means the Mortgage Services Agreement substantially in the
form attached hereto as Exhibit R to be entered into by and between GE
Mortgage Services, LLC and GE Mortgage Holdings, LLC.


 


“Outsourcing Services
Separation Agreement” means the Outsourcing Services Separation Agreement
in substantially the form attached hereto as Exhibit G, to be entered
into by and among GE, GECC, GE Capital International Services and Genworth.


 


“Over-Allotment Option”
means the over-allotment option that may be exercised by the underwriters of
the Initial Public Offering pursuant to the Underwriting Agreements relating to
the Initial Public Offering and the offering of the Series A Preferred Stock.


 


“Person” means any
individual, corporation, partnership, firm, joint venture, association,
joint-stock company, trust, unincorporated organization, Governmental Authority
or other entity.


 


“Plan of Divestiture”
means the plan of divestiture adopted by the board of directors of GECC
attached hereto as Exhibit EE.


 


“Pre-Closing Documents”
means the FACL Reinsurance Agreement, the FACL Services Agreement, the FICL
Reinsurance Agreement, the FICL Services Agreement and the Framework Agreement.


 


“Prospectus” means
the prospectus or prospectuses included in any of the Registration Statements,
as amended or supplemented by any prospectus supplement and by all other
amendments and supplements to any such prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus or
prospectuses.


 


11

















 


“Registration Rights
Agreement” means the Registration Rights Agreement in substantially the
form attached hereto as Exhibit B, to be entered into by and between
GEFAHI and Genworth.


 


“Registration
Statements” means the IPO Registration Statement, the Equity Units
Registration Statement, the Series A Preferred Stock Registration Statement and
the Debt Registration Statement, including in each case the Prospectus related
thereto, amendments and supplements to any such Registration Statement,
including post-effective amendments, all exhibits and all materials
incorporated by reference in any such Registration Statement and Prospectus.


 


“Reinsurance
Agreements” means the Long-Term Care Retrocession Agreements, the
Structured Settlement Annuity Reinsurance Agreements, the Variable Annuity
Reinsurance Agreements, and the Medicare Supplement Reinsurance Agreement.


 


“Restricted Marks”
means the Licensed Marks and the name “General Electric.”


 


“SEC” means the
Securities and Exchange Commission.


 


“Securities Act”
means the Securities Act of 1933, as amended.


 


“Security Interest”
means any mortgage, security interest, pledge, lien, charge, claim, option,
right to acquire, voting or other restriction, right-of-way, covenant,
condition, easement, encroachment, restriction on transfer, or other
encumbrance of any nature whatsoever.


 


“Separation” means
the transfer of the Genworth Assets to Genworth and its Subsidiaries and the
assumption by Genworth and its Subsidiaries of the Genworth Liabilities, and
the transfer of certain Excluded Assets to GE and its Subsidiaries and the
assumption by GE and its Subsidiaries of certain Excluded Liabilities, all as
more fully described in this Agreement and the Transaction Documents.


 


“Series A Preferred
Stock” means the     % series A cumulative preferred
stock, $       par value per share, of Genworth.


 


“Series A Preferred
Stock Registration Statement” means the registration statement on Form S-1
filed under the Securities Act (No. 333-  
) pursuant to which the Series A Preferred Stock issued to GEFAHI and
sold by GEFAHI will be registered.


 


“Structured Settlement
Annuity Reinsurance Agreements” means the Coinsurance Agreements in substantially
the form attached as Exhibit Y hereto, to be entered into by and between
UFLIC, on the one hand, and each of First Colony, FHL, GELAAC, GECA, GECLANY
and AML, on the other hand.


 


“Subsidiary” or “subsidiary”
means, with respect to any Person, any corporation, limited liability company,
joint venture or partnership of which such Person 


 


12

















 


(a) beneficially owns,
either directly or indirectly, more than fifty percent (50%) of (i) the total
combined voting power of all classes of voting securities of such entity, (ii)
the total combined equity interests, or (iii) the capital or profit interests,
in the case of a partnership; or (b) otherwise has the power to vote, either
directly or indirectly, sufficient securities to elect a majority of the board
of directors or similar governing body.


 


“Tax”  means
all federal, state, provincial, territorial, municipal, local or foreign
income, profits, franchise, gross receipts, environmental (including taxes
under Code Section 59A), customs, duties, net worth, sales, use, goods and
services, withholding, value added, ad
valorem, employment, social security, disability, occupation,
pension, real property, personal property (tangible and intangible), stamp,
transfer, conveyance, severance, production, excise, premium, retaliatory
and other taxes, withholdings, duties, levies, imposts, guarantee fund assessments and other similar charges and
assessments (including any and all fines, penalties and additions attributable
to or otherwise imposed on or with respect to any such taxes, charges, fees,
levies or other assessments, and interest thereon) imposed by or on behalf of
any Taxing Authority, in each case whether such Tax arises by Law, contract,
agreement or otherwise.


 


“Tax Returns”
means any report, return, declaration, claim for refund, information report or
return or statement required to be supplied to a Taxing Authority in connection
with Taxes, including any schedule or attachment thereto or amendment
thereof.


 


“Taxing Authority”
means any Governmental Authority exercising any authority to impose, regulate,
levy, assess or administer the imposition of any Tax.


 


“Tax Matters Agreement”
means the Tax Matters Agreement, in substantially the form attached hereto as Exhibit
C, to be entered into by and among GE, GECC, GEI, GEFAHI and Genworth.


 


“Transactions”
means, collectively, (i) the Separation, (ii) the Initial Public Offering and
(iii) all other transactions contemplated by this Agreement or any Transaction
Document.


 


“Transition Matters
Agreement” means the Asset Management Transition Services Agreement
substantially in the form attached as Exhibit L by and among Genworth,
GEFAHI and GE Asset Management Incorporated and the related agreements listed
in that Exhibit.


 


“Transition Services
Agreement” means the Transition Services Agreement in substantially the
form attached hereto as Exhibit A, to be entered into by and among GE,
GECC, GEI, GEFAHI, GNA and Genworth and GE Mortgage Holdings, LLC.


 


“Transitional Trademark
License Agreement” means the Transitional Trademark License Agreement in
substantially the form attached hereto as Exhibit E, to be entered into
by and between GE and Genworth.


 


13

















 


“Trigger Date”
means the first date on which members of the GE Group cease to beneficially own
(excluding for such purposes shares of Genworth Common Stock beneficially owned
by GE but not for its own account, including (in such exclusion) beneficial
ownership which arises by virtue of some entity that is an Affiliate of GE
being a sponsor of or advisor to a mutual or similar fund that beneficially
owns shares of Genworth Common Stock) more than fifty percent (50%) of the
outstanding Genworth Common Stock.


 


“Trust Agreements”
means the Trust Agreements in substantially the form attached hereto as Exhibit
AA, to be entered into by and among UFLIC and The Bank of New York, as
trustee, on the one hand, and each of AML, First Colony, FHL, GELAAC, GECA, and
GECLANY.


 


“UFLIC” means Union
Fidelity Life Insurance Company, an Illinois insurance company.


 


“UFLIC ESG Services
Agreement” means the Administrative Services Agreement in substantially the
form attached as Exhibit S, to be entered into by and between UFLIC and
GE Group Life Assurance Company.


 


“UK Transfer Plan”
means the Scheme for the Transfer to Financial New Life Company Limited of the
insurance business of Financial Assurance Company Limited in substantially the
form attached hereto as Exhibit M.


 


“Underwriters”
means the managing underwriters for the Initial Public Offering.


 


“Underwriting
Agreements” means the Underwriting Agreements to be entered into by and
among GEFAHI, Genworth and the Underwriters in connection with the offering of
Genworth Common Stock by GEFAHI in the Initial Public Offering and the offering
of Series A Preferred Stock and Equity Units by GEFAHI in the Concurrent
Offerings.


 


“Variable Annuity
Reinsurance Agreements” means the Reinsurance Agreements in substantially
the form attached hereto as Exhibit Z, to be entered into by and between
UFLIC, on the one hand, and each of GELAAC and GECLANY, on the other hand.


 


“Viking” means
Viking Insurance Company Ltd., a Bermuda insurance company.


 


“Viking Agreement”
means the Agreement Regarding Continued Reinsurance of Insurance Products in
substantially the form attached hereto as Exhibit J, to be entered into
between GECC and Viking.


 


1.2                                 Other Terms. 
For purposes of this Agreement, the following terms have the meanings
set forth in the sections indicated.


 


14

















 


	
  Term

  	
   

  	
  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Agreement

  	
   

  	
  Recitals

  	
   

  
	
  Closing

  	
   

  	
  3.1

  	
   

  
	
  Closing Date

  	
   

  	
  3.1

  	
   

  
	
  CPR

  	
   

  	
  7.3

  	
   

  
	
  CPR Arbitration Rules

  	
   

  	
  7.4(a)

  	
   

  
	
  Dispute

  	
   

  	
  7.1(a)

  	
   

  
	
  Excluded Assets

  	
   

  	
  2.2(b)

  	
   

  
	
  Excluded Liabilities

  	
   

  	
  2.3(b)

  	
   

  
	
  GE

  	
   

  	
  Recitals

  	
   

  
	
  GE Annual Statements

  	
   

  	
  4.7

  	
   

  
	
  GE Auditors

  	
   

  	
  4.7(a)

  	
   

  
	
  GE Confidential
  Information

  	
   

  	
  6.2(b)

  	
   

  
	
  GE Guarantees

  	
   

  	
  2.4(b)(iii)

  	
   

  
	
  GE Indemnified Parties

  	
   

  	
  5.2

  	
   

  
	
  GE Parties

  	
   

  	
  Recitals

  	
   

  
	
  GE Policies

  	
   

  	
  6.15

  	
   

  
	
  GE Public Filings

  	
   

  	
  4.6

  	
   

  
	
  GECC

  	
   

  	
  Recitals

  	
   

  
	
  GEI

  	
   

  	
  Recitals

  	
   

  
	
  GEFAHI

  	
   

  	
  Recitals

  	
   

  
	
  Genworth

  	
   

  	
  Recitals

  	
   

  
	
  Genworth Assets

  	
   

  	
  2.2(a)

  	
   

  
	
  Genworth Auditors

  	
   

  	
  4.7(a)

  	
   

  
	
  Genworth Confidential
  Information

  	
   

  	
  6.2(a)

  	
   

  
	
  Genworth Indemnified
  Parties

  	
   

  	
  5.3

  	
   

  
	
  Genworth Information

  	
   

  	
  4.5(g)

  	
   

  
	
  Genworth Liabilities

  	
   

  	
  2.3(a)

  	
   

  
	
  Genworth Public
  Documents

  	
   

  	
  4.5(e)

  	
   

  
	
  Indemnified Party

  	
   

  	
  5.6(a)

  	
   

  
	
  Indemnifying Party

  	
   

  	
  5.6(a)

  	
   

  
	
  Indemnity Payment

  	
   

  	
  5.6(a)

  	
   

  
	
  Initial Notice

  	
   

  	
  7.2

  	
   

  
	
  Privilege

  	
   

  	
  4.17

  	
   

  
	
  Registration
  Indemnified Parties

  	
   

  	
  5.4(a)

  	
   

  
	
  Reinsurance-Related
  Documents

  	
   

  	
  3.2(a)

  	
   

  
	
  Representatives

  	
   

  	
  6.2(a)

  	
   

  
	
  Response

  	
   

  	
  7.2

  	
   

  
	
  Third Party Claim

  	
   

  	
  5.7(a)

  	
   

  
	
  Transaction Documents

  	
   

  	
  3.2(b)

  	
   

  
	
  Transfer Documents

  	
   

  	
  3.4

  	
   

  



 


15

















 


ARTICLE II


 


THE SEPARATION


 


2.1                                 Transfer of Assets; Assumption of Liabilities;
Consideration.


 


(a)                                  Subject
to Section 3.6, immediately following the execution and delivery of
the Underwriting Agreements by each of the parties thereto, in accordance with
the plan and structure set forth on Schedule 2.1(a):


 


(i)                                     GE
shall, and shall cause its applicable Subsidiaries to, contribute, assign,
transfer, convey and deliver to Genworth or certain of its Subsidiaries
designated by Genworth, and Genworth or such Subsidiaries shall accept from GE
and its applicable Subsidiaries, all of GE’s and such Subsidiaries’ respective rights,
titles and interests in and to all Genworth Assets, other than the Delayed
Transfer Assets;


 


(ii)                                  Genworth
and certain of its Subsidiaries designated by Genworth, shall accept, assume
and agree faithfully to perform, discharge and fulfill all the Genworth
Liabilities, other than the Delayed Transfer Liabilities, in accordance with
their respective terms.  Genworth and
such Subsidiaries shall be responsible for all Genworth Liabilities, regardless
of when or where such Genworth Liabilities arose or arise, or whether the facts
on which they are based occurred prior to or subsequent to the Closing Date,
regardless of where or against whom such Genworth Liabilities are asserted or
determined (including any Genworth Liabilities arising out of claims made by
GE’s or Genworth’s respective directors, officers, employees, agents,
Subsidiaries or Affiliates against any member of the GE Group or the Genworth
Group) or whether asserted or determined prior to the date hereof, and, except
as set forth in Section 2.3(b)(v), regardless of whether arising
from or alleged to arise from negligence, recklessness, violation of Law, fraud
or misrepresentation by any member of the GE Group or the Genworth Group, or
any of their respective directors, officers, employees, agents, Subsidiaries or
Affiliates; and


 


(iii)                               Genworth
shall issue to GEFAHI (A)
           shares of Class B
Common Stock, (B) 2,000,000 shares of Series A Preferred Stock, (C) the
Genworth Promissory Note, (D) the Genworth Contingent Note and (E) the Genworth
Equity Units.


 


(b)                                 Each
of the parties hereto agrees that the Delayed Transfer Assets will be
contributed, assigned, transferred, conveyed and delivered, and the Delayed
Transfer Liabilities will be accepted and assumed, in accordance with the terms
of the applicable Transfer Documents or as otherwise set forth on Schedule 2.1(b).  Following such contribution, assignment,
transfer, conveyance and delivery of any Delayed Transfer Asset, or the
acceptance and assumption of any Delayed Transfer Liability, the applicable
Delayed Transfer Asset or Delayed Transfer Liability shall be treated for all
purposes of this Agreement and the Transaction Documents as a Genworth Asset or
a Genworth Liability, as the case may be.


 


16

















 


(c)                                  If
at any time or from time to time (whether prior to or after the Closing Date),
any party hereto (or any member of such party’s respective Group), shall
receive or otherwise possess any Asset that is allocated to any other Person
pursuant to this Agreement or any Transaction Document, such party shall
promptly transfer, or cause to be transferred, such Asset to the Person so
entitled thereto.  Prior to any such
transfer, the Person receiving or possessing such Asset shall hold such Asset
in trust for any such other Person.


 


(d)                                 Genworth
hereby waives compliance by each member of the GE Group with the requirements
and provisions of the “bulk-sale” or “bulk-transfer” Laws of any jurisdiction
that may otherwise be applicable with respect to the transfer or sale of any or
all of the Genworth Assets to any member of the Genworth Group.


 


2.2                                 Genworth Assets.


 


(a)                                  For
purposes of this Agreement, “Genworth Assets” shall mean (without
duplication):


 


(i)                                     the
Assets listed or described on Schedule 2.2(a)(i) and all other
Assets that are expressly provided by this Agreement or any Transaction
Document as Assets to be transferred to Genworth or any other member of the
Genworth Group;


 


(ii)                                  (A)
all Genworth Contracts, (B) all issued and outstanding capital stock of the
Subsidiaries of GE listed on Schedule 2.2(a)(ii)(B), and (C) the
shares of capital stock of certain entities held by GE as listed on Schedule 2.2(a)(ii)(C);


 


(iii)                               subject
to Section 6.4, any rights of any member of the Genworth Group
under any of the Insurance Policies, including any rights thereunder arising
after the Closing Date in respect of any Insurance Policies;


 


(iv)                              all
Assets reflected as Assets of Genworth and its Subsidiaries in the Genworth
Balance Sheet, subject to any dispositions of such Assets subsequent to the
date of the Genworth Balance Sheet; and


 


(v)                                 any
and all Assets owned or held immediately prior to the Closing Date by GE or any
of its Subsidiaries that are used primarily in the Genworth Business.  The intention of this clause (v) is only to
rectify any inadvertent omission of transfer or conveyance of any Assets that,
had the parties given specific consideration to such Asset as of the date
hereof, would have otherwise been classified as a Genworth Asset.  No Asset shall be deemed to be a Genworth
Asset solely as a result of this clause (v) if such Asset is within the
category or type of Asset expressly covered by the terms of a Transaction
Document unless the party claiming entitlement to such Asset can establish that
the omission of the transfer or conveyance of such Asset was inadvertent.  In addition, no Asset shall be deemed a
Genworth Asset solely as a result of this clause (v) unless a claim with
respect thereto is made by Genworth on or prior to the later of (A) the Trigger
Date and (B) the first anniversary of the Closing Date.


 


17

















 


Notwithstanding the
foregoing, the Genworth Assets shall not in any event include the Excluded
Assets referred to in Section 2.2(b).


 


(b)                                 For
the purposes of this Agreement, “Excluded Assets” shall mean:


 


(i)                                     the
Assets listed or described on Schedule 2.2(b)(i);


 


(ii)                                  the
contracts and agreements listed or described on Schedule 2.2(b)(ii);
and


 


(iii)                               any
and all Assets that are expressly contemplated by this Agreement or any
Transaction Document as Assets to be retained by a GE Party or any other member
of the GE Group.


 


2.3                                 Genworth Liabilities.


 


(a)                                  For
the purposes of this Agreement, “Genworth Liabilities” shall mean
(without duplication):


 


(i)                                     the
Liabilities listed or described on Schedule 2.3(a)(i) and all other
Liabilities that are expressly provided by this Agreement or any Transaction
Document as Liabilities to be assumed by Genworth or any other member of the
Genworth Group, and all agreements, obligations and Liabilities of Genworth or
any other member of the Genworth Group under this Agreement or any of the
Transaction Documents;


 


(ii)                                  all
Liabilities (other than Taxes, which shall be governed exclusively under the
Tax Matters Agreement, tax sharing agreements and arrangements specifically
identified therein [and the International Tax Matters Agreements]), including
any employee-related Liabilities (other than Excluded Employee Liabilities)
relating to, arising out of or resulting from:


 


(A)                              the
operation of the Genworth Business, as conducted at any time before, on or
after the Closing Date (including any Liability relating to, arising out of or
resulting from any act or failure to act by any director, officer, employee,
agent or representative (whether or not such act or failure to act is or was
within such Person’s authority));


 


(B)                                the
operation of any business conducted by any member of the Genworth Group at any
time after the Closing Date (including any Liability relating to, arising out
of or resulting from any act or failure to act by any director, officer,
employee, agent or representative (whether or not such act or failure to act is
or was within such Person’s authority)); or


 


(C)                                any
Genworth Assets (including any Genworth Contracts and any real property and
leasehold interests);


 


18

















 


in any such case whether arising before, on or after the Closing Date;


 


(iii)                               all
Liabilities reflected as liabilities or obligations of Genworth or its
Subsidiaries in the Genworth Balance Sheet, subject to any discharge of such
Liabilities subsequent to the date of the Genworth Balance Sheet; and


 


(iv)                              all
Liabilities arising out of claims made by GE’s or Genworth’s respective
directors, officers, employees, agents, Subsidiaries or Affiliates against any
member of the GE Group or the Genworth Group with respect to the Genworth
Business.


 


(b)                                 For
the purposes of this Agreement, “Excluded Liabilities” shall mean
(without duplication):


 


(i)                                     any
and all Liabilities that are expressly contemplated by this Agreement or any
Transaction Document as Liabilities to be retained or assumed by GE or any
other member of the GE Group (in each case other than Delayed Transfer
Liabilities), and all agreements and obligations of any member of the GE Group
under this Agreement or any of the Transaction Documents;


 


(ii)                                  any
and all Liabilities of a member of the GE Group relating to, arising out of or
resulting from any Excluded Assets;


 


(iii)                               the
Excluded Employee Liabilities;


 


(iv)                              the
Liabilities listed on Schedule 2.3(b)(iv); and


 


(v)                                 any
and all liabilities arising from a knowing violation of Law, fraud or
misrepresentation by any member of the GE Group (other than, for periods prior
to the Closing Date, GEFAHI or any Delayed Transfer Legal Entity) or any of
their respective directors, officers, employees or agents (other than any
individual who at the time of such act was acting in his or her capacity
as  a director, officer, employee or
agent of any member of the Genworth Group).


 


(c)                                  Any
Liabilities of any member of the GE Group not expressly referenced in Section 2.3(a)
above are Excluded Liabilities and all Excluded Liabilities shall not be
Genworth Liabilities.


 


2.4                                 Termination of Agreements.


 


(a)                                  Except
as set forth in Section 2.4(b), Genworth and each member of the
Genworth Group, on the one hand, and GE and each member of the GE Group, on the
other hand, hereby terminate any and all agreements, arrangements, commitments
or understandings, whether or not in writing, between or among Genworth or any
member of the Genworth Group, on the one hand, and GE or any member of the GE
Group, on the other hand, effective as of the Closing 


 


19

















 


Date.  No such terminated agreement, arrangement,
commitment or understanding (including any provision thereof which purports to
survive termination) shall be of any further force or effect after the Closing
Date.  Each party shall, at the reasonable
request of any other party, take, or cause to be taken, such other actions as
may be necessary to effect the foregoing.


 


(b)                         The
provisions of Section 2.4(a) shall not apply to any of the
following agreements, arrangements, commitments or understandings (or to any of
the provisions thereof):


 


(i)                                     this
Agreement and the Transaction Documents (and each other agreement or instrument
expressly contemplated by this Agreement or any Transaction Document to be
entered into or continued by any of the parties hereto or any of the members of
their respective Groups);


 


(ii)                                  the
agreements, arrangements, commitments and understandings listed or described on
Schedule 2.4(b)(ii);


 


(iii)                               the
guarantees, indemnification obligations, surety bonds and other credit support
agreements, arrangements, commitments or understandings listed or described on Schedule 2.4(b)(iii)
(the “GE Guarantees”);


 


(iv)                              any
agreements, arrangements, commitments or understandings to which any Person
other than the parties hereto and their respective Affiliates is a party (it
being understood that to the extent that the rights and obligations of the
parties and the members of their respective Groups under any such agreements,
arrangements, commitments or understandings constitute Genworth Assets or
Genworth Liabilities, they shall be assigned pursuant to Section 2.1);


 


(v)                                 any
accounts payable or accounts receivable between a member of the GE Group, on
the one hand, and a member of the Genworth Group, on the other hand, accrued as
of the Closing Date and reflected in the books and records of the parties or
otherwise documented in writing in accordance with past practices; provided,
however, that all such amounts must be settled within 90 days   after the Closing Date except as otherwise
provided for in the Transaction Documents;


 


(vi)                              any
agreements, arrangements, commitments or understandings to which any non-wholly
owned Subsidiary of GE or Genworth, as the case may be, is a party (it being
understood that directors’ qualifying shares or similar interests will be
disregarded for purposes of determining whether a Subsidiary is wholly owned);
and


 


(vii)                           any
other agreements, arrangements, commitments or understandings that this
Agreement or any Transaction Document expressly contemplates will survive the
Closing Date.


 


2.5                                 DISCLAIMER OF REPRESENTATIONS AND
WARRANTIES.  EACH OF GE (ON
BEHALF OF ITSELF AND EACH MEMBER OF THE GE GROUP) AND GENWORTH (ON BEHALF OF
ITSELF AND EACH MEMBER OF THE GENWORTH GROUP) UNDERSTANDS AND AGREES THAT,
EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY TRANSACTION DOCUMENT, NO 


 


20

















 


PARTY TO THIS AGREEMENT,
ANY TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY
THIS AGREEMENT, ANY TRANSACTION DOCUMENT OR OTHERWISE, IS REPRESENTING OR
WARRANTING IN ANY WAY AS TO THE ASSETS, BUSINESSES OR LIABILITIES TRANSFERRED
OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR APPROVALS
REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OR FREEDOM FROM
ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS OF SUCH
PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM
COUNTERCLAIM WITH RESPECT TO ANY CLAIM OR OTHER ASSET, INCLUDING ANY ACCOUNTS
RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY ASSIGNMENT,
DOCUMENT OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR
THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF.  EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN
OR IN ANY TRANSACTION DOCUMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS
IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A
QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES
SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO
BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY
SECURITY INTEREST, AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS
ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED
WITH.


 


2.6                                 Governmental Approvals and Consents;
Delayed Transfer Assets and Liabilities.


 


(a)                                  To
the extent that the Separation requires any Governmental Approvals or Consents,
the parties will use their commercially reasonable efforts to obtain such
Governmental Approvals and Consents; provided, however, that
neither GE nor Genworth shall be obligated to contribute capital in any form to
any entity in order to obtain such Governmental Approvals and Consents.


 


(b)                                 If
and to the extent that the valid, complete and perfected transfer or assignment
to the Genworth Group of any Genworth Assets or the assumption by the Genworth
Group of any Genworth Liabilities would be a violation of applicable Law or
require any Consent or Governmental Approval in connection with the Separation,
or the Initial Public Offering, then, unless the parties hereto mutually shall
otherwise determine, the transfer or assignment to the Genworth Group of such
Genworth Assets or the assumption by the Genworth Group of such Genworth
Liabilities shall be automatically deemed deferred and any such purported
transfer, assignment or assumption shall be null and void until such time as
all legal impediments are removed or such Consents or Governmental Approvals
have been obtained.  Any such Liability
shall be deemed a Delayed Transfer Liability. 
Any such Asset shall be deemed (i) a 


 


21

















 


Delayed Transfer Asset
and, (ii) notwithstanding the foregoing, a Genworth Asset for purposes of
determining whether any Liability is a Genworth Liability.


 


(c)                                  If
any transfer or assignment of any Genworth Asset intended to be transferred or
assigned hereunder or any assumption of any Genworth Liability intended to be
assumed by Genworth hereunder is not consummated on the Closing Date, whether
as a result of the provisions of Section 2.6(b) or for any other
reason, then, insofar as reasonably possible, (i) the Person retaining such
Genworth Asset shall thereafter hold such Genworth Asset for the use and
benefit of the Person entitled thereto (at the expense of the Person entitled
thereto) and (ii) Genworth shall, or shall cause its applicable Subsidiary to,
pay or reimburse the Person retaining such Genworth Liability for all amounts
paid or incurred in connection with such Genworth Liability.  In addition, the Person retaining such
Genworth Asset shall, insofar as reasonably possible and to the extent
permitted by applicable Law, treat such Asset in the ordinary course of business
in accordance with past practice and take such other actions as may be
reasonably requested by the Person to whom such Genworth Asset is to be
transferred in order to place such Person in the same position as if such
Genworth Asset had been transferred as contemplated hereby and so that all the
benefits and burdens relating to such Genworth Asset, including possession,
use, risk of loss, potential for gain, and dominion, control and command over
such Genworth Asset, is to inure from and after the Closing Date to the
Genworth Group.


 


(d)                                 If
and when the Consents and Governmental Approvals, the absence of which caused
the deferral of transfer of any Genworth Asset or the deferral of assumption of
any Genworth Liability pursuant to Section 2.6(b), are obtained,
the transfer of the applicable Genworth Asset or Genworth Liability shall be
effected in accordance with the terms of this Agreement and/or the applicable
Transaction Document.


 


(e)                                  The
Person retaining an Asset or Liability due to the deferral of the transfer of
such Asset or the deferral of the assumption of such Liability shall not be
obligated, in connection with the foregoing, to expend any money unless the
necessary funds are advanced (or otherwise made available) by the Person
entitled to the Asset or the Person intended to be subject to the Liability,
other than reasonable out-of-pocket expenses, attorneys’ fees and recording or
similar fees, all of which shall be promptly reimbursed by the Person entitled
to such Asset or the Person intended to be subject to the Liability.


 


2.7                                 Novation of Assumed Genworth Liabilities.


 


(a)                                  Each
of GE and Genworth, at the request of the other, shall use its reasonable best
efforts to obtain, or to cause to be obtained, any consent, substitution,
approval or amendment required to novate or assign all obligations under
agreements, leases, licenses and other obligations or Liabilities of any nature
whatsoever that constitute Genworth Liabilities, or to obtain in writing the
unconditional release of all parties to such arrangements other than any member
of the Genworth Group, so that, in any such case, Genworth and its Subsidiaries
will be solely responsible for such 


 


22

















 


Liabilities; provided,
however, that neither GE nor Genworth shall be obligated to pay any
consideration therefor to any third party from whom any such consent, approval,
substitution or amendment is requested.


 


(b)                         If GE or
Genworth is unable to obtain, or to cause to be obtained, any such required
consent, approval, release, substitution or amendment, the applicable member of
the GE Group shall continue to be bound by such agreement, lease, license or
other obligation and, unless not permitted by Law or the terms thereof,
Genworth shall, as agent or subcontractor for GE or such other Person, as the
case may be, pay, perform and discharge fully all the obligations or other
Liabilities of GE or such other Person that constitute Genworth Liabilities, as
the case may be, thereunder from and after the Closing Date.  Genworth shall indemnify each GE Indemnified
Party, and hold each of them harmless against any Liabilities arising in
connection therewith; provided  that pursuant hereto Genworth
shall have no obligation to indemnify any GE Indemnified Party that has engaged
in any knowing violation of Law, fraud or misrepresentation in connection
therewith.  GE shall, without further
consideration, pay and remit, or cause to be paid or remitted, to Genworth,
promptly all money, rights and other consideration received by it or any member
of its Group in respect of such performance (unless any such consideration is
an Excluded Asset).  If and when any
such consent, approval, release, substitution or amendment shall be obtained or
such agreement, lease, license or other rights or obligations shall otherwise become
assignable or able to be novated, GE shall thereafter assign, or cause to be
assigned, all its rights, obligations and other Liabilities thereunder or any
rights or obligations of any member of its Group to Genworth without payment of
further consideration and Genworth shall, without the payment of any further
consideration, assume such rights and obligations.


 


2.8                                 Novation of Liabilities other than
Genworth Liabilities.


 


(a)                                  Each
of GE and Genworth, at the request of the other, shall use its reasonable best
efforts to obtain, or to cause to be obtained, any consent, substitution,
approval or amendment required to novate or assign all obligations under
agreements, leases, licenses and other obligations or Liabilities for which a
member of the GE Group and a member of the Genworth Group are jointly or
severally liable and that do not constitute Genworth Liabilities, or to obtain
in writing the unconditional release of all parties to such arrangements other
than any member of the GE Group, so that, in any such case, the members of the
GE Group will be solely responsible for such Liabilities; provided, however,
that neither GE nor Genworth shall be obligated to pay any consideration
therefor to any third party from whom any such consent, approval, substitution
or amendment is requested.


 


(b)                                 If
GE or Genworth is unable to obtain, or to cause to be obtained, any such
required consent, approval, release, substitution or amendment, the applicable
member of the Genworth Group shall continue to be bound by such agreement,
lease, license or other obligation and, unless not permitted by Law or the
terms thereof, GE shall cause a member of the GE Group, as agent or
subcontractor for such member of the Genworth Group, to pay, perform and
discharge fully all the obligations or other 


 


23

















 


Liabilities of such
member of the Genworth Group thereunder from and after the Closing Date.  GE shall indemnify each Genworth Indemnified
Party and hold each of them harmless against any Liabilities (other than
Genworth Liabilities) arising in connection therewith; provided  that
pursuant hereto GE shall have no obligation to indemnify any Genworth
Indemnified Party that has engaged in any knowing violation of Law, fraud or
misrepresentation in connection therewith. 
Genworth shall cause each member of the Genworth Group without further
consideration, to pay and remit, or cause to be paid or remitted, to GE or to
another member of the GE Group specified by GE, promptly all money, rights and
other consideration received by it or any member of the Genworth Group in
respect of such performance (unless any such consideration is a Genworth
Asset).  If and when any such consent,
approval, release, substitution or amendment shall be obtained or such
agreement, lease, license or other rights or obligations shall otherwise become
assignable or able to be novated, Genworth shall promptly assign, or cause to
be assigned, all its rights, obligations and other Liabilities thereunder or
any rights or obligations of any member of the Genworth Group to GE or to
another member of the GE Group specified by GE without payment of further
consideration and GE, without the payment of any further consideration shall,
or shall cause such other member of the GE Group to, assume such rights and
obligations.


 


2.9                                 European Creditor Business.


 


In furtherance of the transactions contemplated
by this Agreement and without limiting any other provision hereof, the parties
intend that the transfer of the European Creditor Business into the Genworth
Group shall be effected by means of the documentation and procedures relating
to:


 


(a)                                  the UK Transfer Plan under which it is proposed
that the Assets and Liabilities of FACL be transferred subsequent to the
Closing Date to FINCL upon the effectiveness of such plan in accordance with
the provisions of Part VII of the Financial Services and Markets Act 2000 and
Section 2.1(b) of this Agreement;


 


(b)                                 the French Transfer Plan and the French
Transfer Agreement under which it is proposed that the Assets and Liabilities
of the payment protection business of Vie Plus S.A. be transferred subsequent
to the Closing Date to a member of the Genworth Group upon the effectiveness of
the French Transfer Plan in accordance with the terms of the French Transfer
Plan, the French Transfer Agreement and Section 2.1(b) of this Agreement;


 


(c)                                  the FACL Reinsurance Agreement, FICL
Reinsurance Agreement and French Reinsurance Agreement; and


 


(d)                                 the transfer of the stock of the entities
forming a part of the European Creditor Business listed in Schedule 2.9
of this Agreement.


 


24

















 


ARTICLE III


 


INTERCOMPANY TRANSACTIONS
AS OF THE CLOSING DATE


 


3.1                                 Time and Place of Closing.  Subject to the terms and conditions of this
Agreement, all transactions contemplated by this Agreement shall be consummated
at a closing (the “Closing”) to be held at the offices of Weil, Gotshal
& Manges LLP, 767 Fifth Avenue, New York, New York 10153, at 10:00 A.M.
EST, on the date on which (and after) the Underwriting Agreements are executed
and delivered by each of the parties thereto or at such other place or at such
other time or on such other date as GE and Genworth may mutually agree upon in
writing (the day on which the Closing takes place being the “Closing Date”).


 


3.2                                 Reinsurance, Reorganization and Transaction
Documents.  In each case subject to
Section 3.6, the appropriate parties hereto shall enter into or effect, as
the case may be, and (as necessary) shall cause their respective Subsidiaries
to enter into or effect, the agreements and transactions set forth below, in
each case in the order set forth below and prior to the Closing:


 


(a)                                  The
appropriate parties hereto shall enter into, and (as necessary) shall cause
their respective Subsidiaries to enter into, the agreements set forth below
(items (ii) through (vii) below being referred to as the “Reinsurance-Related
Documents”):


 


(i)                                     the
Pre-Closing Documents;


 


(ii)                                  the
Reinsurance Agreements;


 


(iii)                               the
Trust Agreements;


 


(iv)                              the Capital
Maintenance Agreement;


 


(v)                                 the
Business Services Agreement;


 


(vi)                              the
UFLIC ESG Services Agreement; and


 


(vii)                           the
JLIC Recapture Agreement.


 


(b)                                 The
appropriate parties hereto shall enter into, and (as necessary) shall cause
their respective Subsidiaries to enter into, the agreements set forth below
(collectively with the Reinsurance-Related Documents, the UK Transfer Plan and
the Pre-Closing Documents, the “Transaction Documents”):


 


(i)                                     the
Transition Services Agreement;


 


(ii)                                  the
Registration Rights Agreement;


 


(iii)                               the
Tax Matters Agreement;


 


25

















 


(iv)                              the
Employee Matters Agreement;


 


(v)                                 the
Transitional Trademark Agreement;


 


(vi)                              the
Intellectual Property Cross License Agreement;


 


(vii)                           the
Outsourcing Services Separation Agreement;


 


(viii)                        the
European Transition Services Agreement;


 


(ix)                                the
Investment Management Agreements;


 


(x)                                   the
Viking Agreement;


 


(xi)                                the
Liability and Portfolio Asset Management Agreement;


 


(xii)                             the
Transition Matters Agreement;


 


(xiii)                          the
Derivatives Management Services Agreement;


 


(xiv)                         the
European Tax Matters Agreements;


 


(xv)                            the
Mortgage Services Agreement;


 


(xvi)                         the
French Transfer Plan;


 


(xvii)                      the French
Transfer Agreement;


 


(xviii)                   the French
Share Transfer Agreement;


 


(xix)                           the
Genworth Contingent Note;


 


(xx)                              the
Genworth Promissory Note; and


 


(xxi)                           the
Transfer Documents.


 


(c)                                  FHL
shall transfer by dividend all shares of capital stock of UFLIC held by FHL to
GECA, GECA shall transfer by dividend all shares of capital stock of UFLIC then
held by GECA (which, together with the shares received from FHL, will
constitute 100% thereof) to GNA, and GNA shall transfer by dividend all such
shares of UFLIC capital stock to GEFAHI.


 


(d)                                 JLIC
shall pay accrued interest and principal amounts under the JLIC Surplus Notes
in the amounts and to the entities outlined in Schedule 3.2(d).


 


(e)                                  GEFAHI
shall purchase all shares of Viking from GELCO pursuant to the Viking Purchase
Agreement[Terms have not been determined].


 


26

















 


(f)                                    After
execution and delivery of the Underwriting Agreements by all parties thereto,
the Separation contemplated by Article II shall be effected.


 


(g)                                 After
effectiveness of the IPO Registration Statement, the dividends outlined in Schedule 3.2(g)
shall be paid by the entities and in the amounts set forth therein.


 


(h)                                 GEFAHI
shall thereafter contribute $1.45 billion in cash and/or securities to the
capital of UFLIC.


 


3.3                                 Amended and Restated Certificate of Incorporation
and Amended and Restated Bylaws.  At
or prior to the Closing, GE and Genworth shall each take all necessary action
that may be required to provide for the adoption by Genworth of the Amended and
Restated Certificate of Incorporation of Genworth in substantially the form
attached hereto as Exhibit LL, and the Amended and Restated Bylaws of
Genworth in substantially the form attached hereto as Exhibit MM.


 


3.4                                 Transfers of Assets and Assumption of
Liabilities.


 


(a)                                  In
furtherance of the assignment, transfer and conveyance of Genworth Assets and
the assumption of Genworth Liabilities set forth in Section 2.1(a)(i)
and Section 2.1(a)(ii), on the Closing Date (i) GE shall
execute and deliver, and shall cause its Subsidiaries to execute and deliver,
such bills of sale, stock powers, certificates of title, assignments of
contracts and other instruments of transfer, conveyance and assignment as and
to the extent necessary to evidence the transfer, conveyance and assignment of
all of GE’s and its Subsidiaries’ (other than Genworth and its Subsidiaries)
right, title and interest in and to the Genworth Assets to Genworth and its
Subsidiaries, and (ii) Genworth shall execute and deliver such assumptions of
contracts and other instruments of assumption as and to the extent necessary to
evidence the valid and effective assumption of the Genworth Liabilities by
Genworth.  All of the foregoing
documents contemplated by this Section 3.4 shall be referred to
collectively herein as the “Transfer Documents.”


 


(b)                                 To
the extent any Excluded Asset or Excluded Liability is transferred to a member
of the Genworth Group at the Closing or is owned or held by a member of the
Genworth Group after the Closing, from and after the Closing:


 


(i)                                     Genworth
shall, and shall cause its applicable Subsidiaries to, promptly contribute,
assign, transfer, convey and deliver to GE or certain of its Subsidiaries
designated by GE, and GE or such Subsidiaries shall accept from Genworth and
its applicable Subsidiaries, all of Genworth’s and such Subsidiaries’
respective rights, titles and interests in and to such Excluded Assets;


 


(ii)                                  GE
and certain of its Subsidiaries designated by GE, shall promptly accept, assume
and agree faithfully to perform, discharge and fulfill all such Excluded
Liabilities in accordance with their respective terms; and


 


27

















 


(iii)                               In
furtherance of the assignment, transfer and conveyance of Excluded Assets and
the assumption of Excluded Liabilities set forth in Section 3.4(b)(i)
and Section 3.4(b)(ii): (x) Genworth shall execute and
deliver, and shall cause its Subsidiaries to execute and deliver, such bills of
sale, certificates of title, assignments of contracts and other instruments of
transfer, conveyance and assignment as and to the extent necessary to evidence
the transfer, conveyance and assignment of all of Genworth’s and its
Subsidiaries’ right, title and interest in and to the Excluded Assets to GE and
its Subsidiaries, and (y) GE shall execute and deliver such assumptions of
contracts and other instruments of assumption as and to the extent necessary to
evidence the valid and effective assumption of the Excluded Liabilities by GE.


 


(iv)                              To
the extent that the transfer of such Excluded Assets and the assumption of such
Excluded Liabilities requires any Governmental Approvals or Consents, the
parties shall use their commercially reasonable efforts to obtain such
Governmental Approvals and Consents; provided however that neither GE nor
Genworth shall be obligated to contribute capital in any form to any entity in
order to obtain such Governmental Approvals and Consents.


 


(c)                                  If
any transfer or assignment of any Excluded Asset intended to be transferred or
assigned hereunder or any assumption of any Excluded Liability intended to be
assumed by GE hereunder is not consummated on the Closing Date, whether as a
result of the failure to obtain any required Governmental Approvals or Consents
under Section 3.4(b)(iv) or for any other reason, then, insofar as
reasonably possible, (i) the member of the Genworth Group retaining such
Excluded Asset shall thereafter hold such Excluded Asset for the use and
benefit of GE (at GE’s expense) and (ii) GE shall, or shall cause its
applicable Subsidiary to, pay or reimburse the member of the Genworth Group
retaining such Excluded Liability for all amounts paid or incurred in
connection with such Excluded Liability. 
In addition, the member of the Genworth Group retaining such Excluded
Asset shall, insofar as reasonably possible and to the extent permitted by
applicable Law, treat such Excluded Asset in the ordinary course of business in
accordance with past practice and take such other actions as may be reasonably
requested by GE in order to place GE in the same position as if such Excluded Asset
had been transferred as contemplated hereby and so that all the benefits and
burdens relating to such Excluded Asset, including possession, use, risk of
loss, potential for gain, and dominion, control and command over such Excluded
Asset, is to inure from and after the Closing Date to the GE Group.


 


(d)                                 If
and when the Consents and Governmental Approvals, the absence of which caused
the deferral of transfer of any Excluded Asset or the deferral of assumption of
any Excluded Liability, are obtained, the transfer of the applicable Excluded
Asset or Excluded Liability shall be effected in accordance with the terms of
this Agreement and/or the applicable Transaction Document.


 


(e)                                  Any
member of the Genworth Group retaining an Excluded Asset or Excluded Liability
due to the deferral of the transfer of such Excluded Asset or the deferral of
the assumption of such Excluded Liability shall not be obligated, in connection
with the foregoing, to expend any money unless the necessary funds are 


 


28

















 


advanced (or otherwise
made available) by GE or the member of the GE Group intended to be subject to
the Excluded Liability, other than reasonable out-of-pocket expenses,
attorneys’ fees and recording or similar fees, all of which shall be promptly
reimbursed by GE or the member of the GE Group entitled to such Excluded Asset
or intended to be subject to such Excluded Liability.


 


3.5                                 The Initial Public Offering and the
Concurrent Offerings.  Genworth
shall (i) consult with, and cooperate in all respects with, the GE Parties in
connection with the pricing of the (x) Class A Common Stock to be offered in
the Initial Public Offering and (y) Equity Units and Series A Preferred Stock
to be offered in the Concurrent Offerings, (ii) at the direction of any GE
Party, execute and deliver the Underwriting Agreements in such form and
substance as is reasonably satisfactory to the GE Parties and (iii) at the
direction of any GE Party, promptly take any and all actions necessary or desirable
to consummate the Initial Public Offering and the Concurrent Offerings as
contemplated by the IPO Registration Statement, the Equity Units Registration
Statement, the Series A Preferred Stock Registration Statement and the
Underwriting Agreements.


 


3.6                                 Rescission. 
Notwithstanding anything to the contrary set forth in this Agreement, if
delivery of the Firm Public Offering Shares to the Underwriters against payment
therefor is not complete within four (4) Business Days after the Closing Date,
all transactions theretofore completed under this Agreement or any of the
Transaction Documents shall immediately be rescinded in all respects and this
Agreement and all of the Transaction Documents shall terminate and all assets
transferred pursuant to the Transaction Documents shall be returned to the
entities that transferred such assets, and all assumptions of liabilities
hereunder and thereunder shall be rescinded and nullified.


 


3.7                                 European Transfers.


 


(a)                                  GE
and Genworth shall cause their relevant respective Subsidiaries to use all
commercially reasonable efforts to cause the UK Transfer Plan and the French
Transfer Plan to become effective (and to consummate the transactions
contemplated thereby and by the French Transfer Agreement) as promptly as
practicable.


 


(b)                                 If
the UK Transfer Plan has not taken effect by December 31, 2004, GE and
Genworth shall cause all of the outstanding shares of capital stock of FACL
promptly thereafter to be transferred to Genworth.


 


3.8                                 Additional Tax Matters Agreement.


 


(a)                                  GE and Genworth have entered into the Tax
Matters Agreement contemporaneously with the execution and delivery of this
Agreement.  All representations,
warranties, covenants and agreements between the parties with respect to Tax
matters are set forth in the Tax Matters Agreement, except to the extent set
forth in Section 3.8(b) of this Agreement.


 


29

















 


 


(b)                                 As
soon as reasonably practicable
after a determination has been made as to the members of the Genworth Group for
which elections will be made under Section 338(h)(10) of the Code, (a)
Genworth shall cause GECA and each GECA Subsidiary for which a
Section 338(h)(10) election has been made to enter into a tax matters
agreement substantially in the form attached hereto as Exhibit
    , and (b) Genworth shall enter into, and shall cause
each of its Subsidiaries (other than life insurance Subsidiaries) for which a
Section 338(h)(10) election has been made to enter into, a tax matters
agreement substantially in the form attached hereto as Exhibit
      .


 


ARTICLE IV


 


FINANCIAL AND OTHER INFORMATION


 


4.1                                 Annual
Financial Information. 
Genworth agrees that, during any fiscal year in which members of the GE
Group beneficially own shares of Genworth Common Stock (excluding for such
purposes shares of Genworth Common Stock beneficially owned by GE but not for
its own account, including (in such exclusion) beneficial ownership which
arises by virtue of some entity that is an Affiliate of GE being a sponsor of
or advisor to a mutual or similar fund that beneficially owns shares of
Genworth Common Stock), Genworth shall deliver to GE the Corporate Reporting
Data set forth on Schedule 4.1 for such year in respect of the
Applicable Accounting Method in effect as of the first day of such fiscal
year.  Genworth shall deliver the
financial data and schedules comprising such Corporate Reporting Data within
the time periods specified by GE in writing by no later than fifteen (15) days
prior to the end of each fiscal year. 
All annual consolidated financial statements of Genworth and its
Subsidiaries delivered to GE shall set forth in each case in comparative form
the consolidated figures for the previous fiscal year prepared in accordance
with Article 10 of Regulation S-X and consistent with the level of detail
provided in comparable financial statements furnished by GEFA to GE prior to
the Closing Date.  The Corporate
Reporting Data shall include all statistical information necessary for
inclusion in any GE Group member’s annual earnings press release, along with
appropriate supporting documentation. 
The Corporate Reporting Data shall include (i) a discussion and analysis
by management of Genworth’s and its Subsidiaries’ consolidated financial condition
and results of operations for the requisite years, including, without
limitation, an explanation of any material adverse change, all in reasonable
detail and prepared in accordance with Item 303(a) of Regulation S-K and (ii) a
discussion and analysis of Genworth’s and its Subsidiaries’ consolidated
financial condition and results of operations for the requisite years,
including, without limitation, an explanation of any material adverse change,
all in reasonable detail and prepared in accordance with Item 303(a) of
Regulation S-K, prepared for inclusion in the annual report to stockholders of
any member of the GE Group.  No later
than the day prior to the day Genworth publicly files its Annual Report on Form
10-K with the SEC or otherwise, Genworth shall deliver to GE the final form of
its Annual Report on Form 10-K, together with all certifications required by
applicable Law by each of the chief executive officer and chief financial
officer of Genworth and an opinion thereon by Genworth’s independent certified
public accountants.  Genworth shall also
deliver to GE all of the information required to be delivered in Schedule 4.1
with respect to each Subsidiary of Genworth which is itself required to file
financial 


 


30

















 


statements with the SEC or
otherwise make financial statements publicly available (other than statutory
financial statements filed with state insurance regulatory authorities, which
are addressed in Section 4.5(c)), with such financial statements to
be provided in the same manner and detail and on the same time schedule as
those financial statements of Genworth required to be delivered to GE pursuant
to Schedule 4.1.


 


4.2                                 Quarterly Financial
Information.  Genworth agrees
that, during any fiscal quarter in which members of the GE Group beneficially
own shares of Genworth Common Stock (excluding for such purposes shares of
Genworth Common Stock beneficially owned by GE but not for its own account,
including (in such exclusion) beneficial ownership which arises by virtue of
some entity that is an Affiliate of GE being a sponsor of or advisor to a
mutual or similar fund that beneficially owns shares of Genworth Common Stock),
Genworth shall deliver to GE the Corporate Reporting Data set forth on (i) Schedule 4.2(a)
for the first and second quarter of each year and (ii) Schedule 4.2(b)
for the third quarter of each year, in each case, in respect of the Applicable
Accounting Method in effect as of the first day of such fiscal quarter.  Genworth shall deliver the financial data
and schedules comprising such Corporate Reporting Data within the time periods
specified by GE in writing by no later than fifteen (15) days prior to the end
of each fiscal quarter.  All quarterly
consolidated financial statements of Genworth and its Subsidiaries delivered to
GE shall include financial statements for such quarterly periods and for the
period from the beginning of the current fiscal year to the end of such
quarter, setting forth in each case in comparative form for each such fiscal
quarter of Genworth the consolidated figures for the corresponding quarter and
periods of the previous fiscal year prepared in accordance with Article 10
of Regulation S-X and consistent with the level of detail provided in
comparable financial statements furnished by GEFA to GE prior to the Closing
Date.  The Corporate Reporting Data
shall include all statistical information necessary for inclusion in any GE
Group member’s quarterly earnings press release, along with appropriate supporting
documentation.  The Corporate Reporting
Data shall include a discussion and analysis by management of Genworth’s and
its Subsidiaries’ consolidated financial condition and results of operations
for the requisite quarters, including, without limitation, an explanation of
any material adverse change, all in reasonable detail and prepared in
accordance with Item 303(b) of Regulation S-K. 
No later than the day prior to the day Genworth publicly files a
Quarterly Report on Form 10-Q with the SEC or otherwise, Genworth shall deliver
to GE the final form of its Quarterly Report on Form 10-Q, together with all
certifications required by applicable Law by each of the chief executive
officer and chief financial officer of Genworth.  Genworth shall also deliver to GE all of the information required
to be delivered in Schedules 4.2(a) and (b) with respect to each
Subsidiary of Genworth which is itself required to file financial statements
with the SEC or otherwise make financial statements publicly available (other
than statutory financial statements filed with state insurance regulatory
authorities, which are addressed in Section 4.5(c)), with such
financial statements to be provided in the same manner and detail and on the
same time schedule as those financial statements of Genworth required to
be delivered to GE pursuant to Schedules 4.2(a) and (b).


 


4.3                                 GE’s
Operating Reviews.  Genworth
agrees that, during any fiscal quarterly or annual period in which members of
the GE Group beneficially own, in the 


 


31

















 


aggregate, (excluding for
such purposes shares of Genworth Common Stock beneficially owned by GE but not
for its own account, including (in such exclusion) beneficial ownership which
arises by virtue of some entity that is an Affiliate of GE being a sponsor of
or advisor to a mutual or similar fund that beneficially owns shares of
Genworth Common Stock) at least five percent (5%) of the then outstanding
Genworth Common Stock, Genworth shall deliver to GE the FP&A Reports set
forth on Schedule 4.3 for such quarterly or annual period in
respect of the Applicable Accounting Method in effect as of the first day of
such period.  Genworth shall deliver the
financial data and schedules comprising such FP&A Reports during each
fiscal year within the time periods specified by GE in writing by no later than
fifteen (15) days prior to the end of the preceding fiscal year, or within any
other time periods specified by GE in writing thereafter, but in any event
prior to fifteen (15) days before the date such FP&A Report is required to
be delivered to GE.  Genworth shall
provide GE an opportunity to meet with management of Genworth to discuss such
FP&A Reports upon reasonable notice during normal business hours.


 


4.4                                 General Financial Statement
Requirements.  All information
provided by Genworth or any of its Subsidiaries to GE pursuant to this
Article IV shall be consistent in terms of format and detail and otherwise
with the procedures and practices in effect prior to the Closing Date with
respect to the provision of such financial and other information by GEFA to GE
(and where appropriate, as presently presented in financial and other reports
delivered to the board of directors of GE), with such changes therein as may be
reasonably requested by GE from time to time, and any changes in such
procedures or practices that are required in order to comply with the rules and
regulations of the SEC, as applicable.


 


4.5                                 Twenty Percent Threshold.  Genworth agrees that, during any fiscal year
in which the members of the GE Group beneficially own, in the aggregate,
(excluding for such purposes shares of Genworth Common Stock beneficially owned
by GE but not for its own account, including (in such exclusion) beneficial
ownership which arises by virtue of some entity that is an Affiliate of GE
being a sponsor of or advisor to a mutual or similar fund that beneficially
owns shares of Genworth Common Stock) more than twenty percent (20%) of the
then outstanding Genworth Common Stock, or, notwithstanding such percentage,
during any fiscal year in which any member of the GE Group is required, in
accordance with GAAP, to account for its investment in Genworth on a
consolidated basis or under the equity method of accounting:


 


(a)                                  Maintenance
of Books and Records.  Genworth
shall, and shall cause each of its consolidated Subsidiaries to, (i) make and
keep books, records and accounts, which, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of the assets of Genworth and
such Subsidiaries and (ii) devise and maintain a system of internal accounting
controls sufficient to provide reasonable assurances that: (x) transactions are
executed in accordance with management’s general or specific authorization, (y)
transactions are recorded as necessary (1) to permit preparation of financial
statements in conformity with GAAP or any other criteria applicable to such
statements and (2) to maintain accountability for assets and (z) access 


 


32

















 


to assets is permitted
only in accordance with management’s general or specific authorization.


 


(b)                                 Fiscal
Year.  Genworth shall, and shall
cause each of its consolidated subsidiaries to, maintain a fiscal year which
commences on January 1 and ends on December 31 of each calendar year;
provided that, if on the Closing Date any consolidated Subsidiary of
Genworth has a fiscal year which ends on a date other than December 31,
Genworth shall use its commercially reasonable efforts to cause such Subsidiary
to change its fiscal year to one which ends on December 31 if such change
is reasonably practicable.


 


(c)                                  Quarterly
and Annual Reports Furnished to State Insurance Regulatory Authorities.  Promptly following the filing by Genworth or
any Subsidiary of Genworth of quarterly or annual reports with any and all
state insurance regulatory authorities in each jurisdiction in which such
reports are required to be filed, Genworth shall deliver the final forms of
such reports to GE.


 


(d)                                 Other
Financial Information.  Genworth
shall provide to GE upon request such other financial information and analyses
of Genworth and its Subsidiaries that may be necessary for any member of the GE
Group to (1) comply with applicable financial reporting requirements or its
customary financial reporting practices or (2) respond in a timely manner to
any reasonable requests for information regarding Genworth and its Subsidiaries
received by GE from investors or financial analysts; provided, however,
that neither GE nor any member of the GE Group shall disclose any material, non-public
information of Genworth except pursuant to policies and procedures mutually
agreed upon by GE and Genworth for the disclosure of such information and
except as required by applicable Law. 
In connection therewith, Genworth shall also permit GE, the GE Auditors
and other Representatives of GE to discuss the affairs, finances and accounts
of any member of the Genworth Group with the officers of Genworth and the
Genworth Auditors, all at such times and as often as GE may reasonably request
upon reasonable notice during normal business hours.


 


(e)                                  Public
Information and SEC Reports. 
Genworth and each of its Subsidiaries that files information with the
SEC shall cooperate with GE in preparing reports, notices and proxy and
information statements to be sent or made available by Genworth or such
Subsidiaries to their security holders, all regular, periodic and other reports
filed under Sections 13, 14 and 15 of the Exchange Act by Genworth or such
Subsidiaries and all registration statements and prospectuses to be filed by
Genworth or such Subsidiaries with the SEC or any securities exchange pursuant
to the listed company manual (or similar requirements) of such exchange
(collectively, “Genworth Public Documents”) and deliver to GE (to the
attention of its Senior Securities Counsel), no later than the date the same
are printed for distribution to its shareholders, sent to its shareholders or
filed with the SEC, whichever is earliest, final copies of all Genworth Public
Documents.  Genworth shall file its Quarterly
Reports on Form 10-Q and its Annual Reports on Form 10-K with the SEC
immediately (and in no event later than one hour) following GE’s filing of its
quarterly and annual reports with the SEC for the corresponding period.  Genworth shall cooperate with GE in
preparing all press releases 


 


33

















 


and other statements to
be made available by Genworth or any of its Subsidiaries to the public,
including, without limitation, information concerning material developments in
the business, properties, results of operations, financial condition or
prospects of Genworth or any of its Subsidiaries.  GE shall have the right to review, reasonably in advance of
public release or release to financial analysts or investors and in a manner
consistent with the procedures and practices in effect prior to the Closing
Date with respect to press releases issued by GEFA (1) all press releases and
other statements to be made available by Genworth or any of its Subsidiaries to
the public and (2) all reports and other information prepared by Genworth or
any of its Subsidiaries for release to financial analysts or investors; provided,
however, that neither GE nor any member of the GE Group shall disclose
any material, non-public information of Genworth except pursuant to policies
and procedures mutually agreed upon by GE and Genworth for the disclosure of
such information and except as required by applicable Law;  provided, further, that at any time when
members of the GE Group beneficially own, in the aggregate, (excluding for such
purposes shares of Genworth Common Stock beneficially owned by GE but not for
its own account, including (in such exclusion) beneficial ownership which
arises by virtue of some entity that is an Affiliate of GE being a sponsor of
or advisor to a mutual or similar fund that beneficially owns shares of
Genworth Common Stock) fifty percent (50%) or less of the then outstanding
Genworth Common Stock, GE shall only have the right to review such press
releases, public statements, reports and other information in advance if
necessary for any member of the GE Group to (1) comply with applicable
financial reporting requirements or its customary financial reporting practices
or (2) respond to any reasonable requests for information regarding Genworth
and its Subsidiaries received by GE from investors or financial analysts.  No press release, report, registration,
information or proxy statement, prospectus or other document which refers, or
contains information with respect, to any member of the GE Group shall be filed
with the SEC or otherwise made public or released to any financial analyst or
investor by Genworth or any of its Subsidiaries without the prior written
consent of GE with respect to those portions of such document that contain
information with respect to any member of the GE Group except as may be
required by Law (in such cases Genworth shall use its reasonable best efforts
to notify the relevant member of the GE Group and to obtain such member’s
consent before making such a filing with the SEC or otherwise making any such
information public).


 


(f)                                    Meetings
with Financial Analysts.  Genworth
shall notify GE reasonably in advance of the date of all meetings to be held
between Genworth and any financial analyst, and shall consult with GE as to the
appropriate timing for all such meetings. 
With respect to any such meeting to be held at a time when members of
the GE Group beneficially own, in the aggregate, (excluding for such purposes
shares of Genworth Common Stock beneficially owned by GE but not for its own
account, including (in such exclusion) beneficial ownership which arises by
virtue of some entity that is an Affiliate of GE being a sponsor of or advisor
to a mutual or similar fund that beneficially owns shares of Genworth Common
Stock) more than fifty percent (50%) of the then outstanding Genworth Common
Stock, Genworth shall not schedule such meeting on any date to which GE
objects.


 


34

















 


(g)                                 Earnings
Releases.  GE agrees that, unless
required by Law or unless Genworth shall have consented thereto, no member of
the GE Group will publicly release any quarterly, annual or other financial
information of Genworth or any of its Subsidiaries (“Genworth Information”)
delivered to GE pursuant to this Article IV prior to the time that GE
publicly releases financial information of GE for the relevant period.  GE will consult with Genworth on the timing
of their annual and quarterly earnings releases and GE and Genworth will give
each other an opportunity to review the information therein relating to
Genworth and its Subsidiaries and to comment thereon; provided that GE
shall have the sole right to determine the timing of all such releases if GE
and Genworth disagree.  Genworth shall
publicly release its financial results for each annual and quarterly period
immediately (and in no event later than one hour) following GE’s release of its
financial results for the corresponding period.  If any member of the GE Group is required by Law to publicly
release such Genworth Information prior to the public release of GE’s financial
information, GE will give Genworth notice of such release of Genworth
Information as soon as practicable but no later than two days prior to such
release of Genworth Information.


 


4.6                                 GE
Public Filings.  Genworth
shall cooperate fully, and cause its accountants to cooperate fully, with GE to
the extent reasonably requested by GE in the preparation of GE’s press
releases, public earnings releases, Quarterly Reports on Form 10-Q, Annual
Reports to Shareholders, Annual Reports on Form 10-K, any Current Reports on
Form 8-K and any amendments thereto and any other proxy, information and
registration statements, reports, notices, prospectuses and any other filings
made by GE or any of its Subsidiaries with the SEC, any national securities
exchange or otherwise made publicly available (collectively, “GE Public
Filings”).  Genworth agrees to
provide to GE all information that GE reasonably requests in connection with
any such GE Public Filings or that, in the judgment of GE’s legal department,
is required to be disclosed therein under any Law.  Genworth agrees to use reasonable best efforts to provide such  information in a timely manner to enable GE
to prepare, print and release such GE Public Filings on such date as GE shall
determine.  If and to the extent
reasonably requested by GE, Genworth shall diligently and promptly review all
drafts of such GE Public Filings and prepare in a diligent and timely fashion
any portion of such GE Public Filing pertaining to Genworth or its
Subsidiaries.  Prior to any printing or
public release of any GE Public Filing, an appropriate executive officer of
Genworth, shall, if requested by GE, continue the existing practice of certifying
and representing that the information provided by Genworth relating to
Genworth, in such GE Public Filing is accurate, true and correct in all
material respects.  Unless required by
Law, without the prior consent of GE, Genworth shall not publicly release any
financial or other information which conflicts with the information with
respect to Genworth, any Affiliate of Genworth or the Genworth Group that is
provided by Genworth for any GE Public Filing.


 


4.7                                 GE
Annual Statements.  In
connection with any GE Group member’s preparation of its audited annual
financial statements and its Annual Reports to Shareholders (collectively the “GE
Annual Statements”), during any fiscal year in which the members of the GE
Group own, in the aggregate, (excluding for such purposes shares of Genworth
Common Stock beneficially owned by GE but not for its own account, including
(in such exclusion) beneficial ownership which arises by virtue of some entity 


 


35

















 


that is an Affiliate of
GE being a sponsor of or advisor to a mutual or similar fund that beneficially
owns shares of Genworth Common Stock) more than twenty percent (20%) of the
then outstanding Genworth Common Stock, (or such lesser percentage during any
fiscal year that any member of the GE Group is required, in accordance with
GAAP, to account for its investment in Genworth on a consolidated basis or
under the equity method of accounting), Genworth agrees as follows:


 


(a)                                  Coordination
of Auditors’ Opinions.  Genworth will
use its commercially reasonable efforts to enable its independent certified
public accountants (the “Genworth Auditors”) to complete their audit
such that they will date their opinion on Genworth’s audited annual financial
statements on the same date that GE independent certified public accountants
(the “GE Auditors”) date their opinion on the GE Annual Statements, and
to enable GE to meet its timetable for the printing, filing and public
dissemination of the GE Annual Statements.


 


(b)                                 Cooperation.  Genworth will provide to GE on a timely
basis all information that GE or any of its Subsidiaries reasonably requires to
meet its schedule for the preparation, printing, filing, and public
dissemination of any GE Public Filing. 
Without limiting the generality of the foregoing, Genworth will provide
all required financial information with respect to it and its consolidated
Subsidiaries to the GE Auditors and management in a sufficient and reasonable
time and in sufficient detail to permit such auditors to take all steps and
perform all review necessary to provide sufficient assistance to such auditors
with respect to information to be included or contained in the GE Public
Filings.


 


(c)                                  Access
to Personnel and Working Papers. 
Genworth will request the Genworth Auditors to make available to the GE
Auditors both the personnel who performed or are performing the annual audit of
Genworth and, consistent with customary professional practice and courtesy of
such auditors with respect to the furnishing of work papers, work papers
related to the annual audit of Genworth, in all cases within a reasonable time
after the Genworth Auditors’ opinion date, so that the GE Auditors are able to
perform the procedures they consider necessary to take responsibility for the
work of the Genworth Auditors as it relates to the GE Auditors’ report on the
GE Annual Statements, all within sufficient time to enable GE to meet its
timetable for the printing, filing and public dissemination of the GE Annual
Statements.


 


4.8                                 Fifty
Percent Threshold.  Genworth
agrees that during any period in which the members of the GE Group beneficially
own, in the aggregate (excluding for such purposes shares of Genworth Common
Stock beneficially owned by GE but not for its own account, including (in such
exclusion) beneficial ownership which arises by virtue of some entity that is
an Affiliate of GE being a sponsor of or advisor to a mutual or similar fund
that beneficially owns shares of Genworth Common Stock) more than fifty percent
(50%) of the then outstanding Genworth Common Stock (or in which,
notwithstanding such percentage, any member of the GE Group is required, in
accordance with GAAP, to consolidate Genworth’s financial statements with its
financial statements):


 


36

















 


(a)                                  Internal
Auditors.  Genworth shall provide
GE, the GE Auditors or other Representatives of GE reasonable access upon
reasonable notice during normal business hours to Genworth’s and its
Subsidiaries’ books and records so that GE may conduct reasonable audits
relating to the financial statements provided by Genworth pursuant to this
Article IV, as well as to the internal accounting controls and operations
of Genworth and its Subsidiaries; provided, however, that any
such audits will be conducted in the same manner and using the same procedures
as conducted on the date hereof for audits of GEFA including, but not limited
to, reporting audit findings to management of the business or unit subject to
the audit.


 


(b)                                 Accounting
Estimates and Principles.  Genworth
will give GE reasonable notice of any proposed material change in accounting
estimates or material changes in accounting principles from those in effect
with respect to GEFA, its Subsidiaries and the GE Affiliates that comprise the
Genworth Group immediately prior to the Closing Date, and will give GE notice
immediately following adoption of any such changes that are mandated or
required by the SEC, the Financial Accounting Standards Board or the Public
Company Accounting Oversight Board.  In
connection therewith, Genworth will consult with GE and, if requested by GE,
Genworth will consult with the GE Auditors with respect thereto.  As to material changes in accounting
principles that could affect GE, Genworth will not make any such changes
without GE’s prior written consent, excluding changes that are mandated or
required by the SEC, the Financial Accounting Standards Board or the Public
Company Accounting Oversight Board, if such a change would be sufficiently
material to be required to be disclosed in Genworth’s financial statements as
filed with the SEC or otherwise publicly disclosed therein.  If GE so requests, Genworth will be required
to obtain the concurrence of the Genworth Auditors as to such material change
prior to its implementation.  GE will
use its reasonable best efforts to promptly respond to any request by Genworth
to make a change in accounting principles and, in any event, in sufficient time
to enable Genworth to comply with its obligations under Section 4.1.


 


(c)                                  Management
Certification.  Genworth’s chief
executive officer and Genworth’s chief financial or accounting officer shall
submit quarterly representations substantially in the form furnished to GE by
GEI prior to the Closing Date (with such changes thereto prescribed by GE
consistent with representations furnished to GE by other Subsidiaries of GE or
as otherwise required by changes to applicable Law or stock exchange
requirements) attesting to the accuracy and completeness of the financial and
accounting records referred to therein in all material respects.


 


(d)                                 Monthly  and Other Financial Information.  As soon as practicable, and within
       days after the end of each month, Genworth
shall furnish to GE the intercompany information in the form and detail set
forth in Schedule 4.8 and furnished by GEFA to GE prior to the
Closing Date.  With reasonable
promptness, Genworth shall deliver to GE such additional financial and other
information and data with respect to Genworth and its Subsidiaries and their
business, properties, financial position, results of operations and prospects
as from time to time may be reasonably requested by GE.


 


37

















 


(e)                                  Operating
Review Process.  Genworth shall
conduct its own strategic and operational review process on the same
schedule on which GE conducts its strategic and operational review
process.  GE acknowledges that, as a
supplement to the information furnished by Genworth to GE pursuant to Section 4.3,
GE shall conduct its  strategic and
operational reviews of Genworth through participation in meetings or other
activities of the Genworth board of directors by the members of Genworth’s
board of directors that are elected by GE. 
To facilitate GE’s participation in the process in this manner, Genworth
shall hold all of its regularly scheduled board meetings at which its strategic
and operational reviews are discussed within a time frame consistent with GE’s
strategic and operational review process. 
GE shall make a good faith attempt to conduct all other reviews of
Genworth’s operations, affairs, finances or results (other than those required
to comply with applicable financial reporting requirements or its customary
financial reporting practices) through participation in meetings or other
activities of the Genworth board of directors by the members of Genworth’s
board of directors that are elected by GE. 
In connection with strategic, operational or other reviews, relevant GE
personnel other than the members of Genworth’s board of directors elected by GE
may participate at GE’s invitation.  GE
will notify Genworth in advance of any such additional attendees.


 


4.9                                 Accountants’
Reports.  Promptly, but in no
event later than five Business Days following the receipt thereof, Genworth
shall deliver to GE copies of all reports submitted to Genworth or any of its
Subsidiaries by their independent certified public accountants, including,
without limitation, each report submitted to Genworth or any of its
subsidiaries concerning its accounting practices and systems and any comment
letter submitted to management in connection with their annual audit and all
responses by management to such reports and letters.


 


4.10                           Agreement for Exchange of
Information; Archives.


 


(a)                                  Each
of GE and Genworth, on behalf of its respective Group, agrees to provide, or
cause to be provided, to the other Group, at any time before or after the
Closing Date, as soon as reasonably practicable after written request therefor,
any Information in the possession or under the control of such respective Group
which the requesting party reasonably needs (i) to comply with reporting,
disclosure, filing or other requirements imposed on the requesting party
(including under applicable securities or tax Laws) by a Governmental Authority
having jurisdiction over the requesting party, (ii) for use in any other
judicial, regulatory, administrative, tax or other proceeding or in order to
satisfy audit, accounting, claims, regulatory, litigation, tax or other similar
requirements, in each case other than claims or allegations that one party to
this Agreement has against the other, or (iii) subject to the foregoing clause
(ii), to comply with its obligations under this Agreement or any Transaction
Document; provided, however, that in the event that any party
determines that any such provision of Information could be commercially
detrimental, violate any Law or agreement, or waive any attorney-client
privilege, the parties shall take all reasonable measures to permit the
compliance with such obligations in a manner that avoids any such harm or
consequence.


 


38

















 


(b)                                 After
the Closing Date, Genworth shall have access during regular business hours (as
in effect from time to time) to the documents and objects of historic
significance that relate to the Genworth Business that are located in archives
retained or maintained by any member of the GE Group.  Genworth may obtain copies (but not originals unless it is a Genworth
Asset) of documents for bona fide business purposes and may obtain objects for
exhibition purposes for commercially reasonable periods of time if required for
bona fide business purposes, provided that Genworth shall cause any such
objects to be returned promptly in the same condition in which they were
delivered to Genworth and Genworth shall comply with any rules, procedures or
other requirements, and shall be subject to any restrictions (including
prohibitions on removal of specified objects), that are then applicable to GE.  Genworth shall pay the applicable fee or
rate per hour for archives research services (subject to increase from time to
time to reflect rates then in effect for GE generally).  Nothing herein shall be deemed to restrict
the access of any member of the GE Group to any such documents or objects or to
impose any liability on any member of the GE Group if any such documents or
objects are not maintained or preserved by GE.


 


(c)                                  After
the Closing Date, GE shall have access during regular business hours (as in
effect from time to time) to the documents and objects of historic significance
that relate to the businesses of any member of the GE Group that are located in
archives retained or maintained by any member of the Genworth Group.  GE may obtain copies (but not originals
unless it is not a Genworth Asset) of documents for bona fide business purposes
and may obtain objects for exhibition purposes for commercially reasonable
periods of time if required for bona fide business purposes, provided that GE
shall cause any such objects to be returned promptly in the same condition in
which they were delivered to GE and GE shall comply with any rules, procedures
or other requirements, and shall be subject to any restrictions (including
prohibitions on removal of specified objects), that are then applicable to
Genworth.  GE shall pay the applicable
fee or rate per hour for archives research services (subject to increase from
time to time to reflect rates then in effect for Genworth generally).  Nothing herein shall be deemed to restrict
the access of any member of the Genworth Group to any such documents or objects
or to impose any liability on any member of the Genworth Group if any such
documents or objects are not maintained or preserved by Genworth.


 


4.11                           Ownership
of Information.  Any
Information owned by one Group that is provided to a requesting party pursuant
to Section 4.10 shall be deemed to remain the property of the
providing party.  Unless specifically
set forth herein, nothing contained in this Agreement shall be construed as
granting or conferring rights of license or otherwise in any such Information.


 


4.12                           Compensation for
Providing Information.  The
party requesting Information agrees to reimburse the other party for the
reasonable out-of-pocket costs, if any, of creating, gathering and copying such
Information, to the extent that such costs are incurred for the benefit of the
requesting party.  Except as may be
otherwise specifically provided elsewhere in this Agreement or in any other
agreement between the parties, 


 


39

















 


such costs shall be
computed in accordance with the providing party’s standard methodology and
procedures.


 


4.13                           Record
Retention.  To facilitate the
possible exchange of Information pursuant to this Article IV and
other provisions of this Agreement after the Closing Date, the parties agree to
use their commercially reasonable efforts to retain all Information in their
respective possession or control in accordance with the policies of GE as in
effect on the Closing Date or such other policies as may be reasonably adopted
by the appropriate party after the Closing Date.  No party will destroy, or permit any of its Subsidiaries to
destroy, any Information which the other party may have the right to obtain pursuant
to this Agreement prior to the fifth anniversary of the date hereof without
first using its reasonable efforts to notify the other party of the proposed
destruction and giving the other party the opportunity to take possession of
such Information prior to such destruction; provided, however,
that in the case of any Information relating to Taxes or employee benefits,
such period shall be extended to the expiration of the applicable statute of
limitations (giving effect to any extensions thereof); provided  further,
however, no party will destroy, or permit any of its Subsidiaries to
destroy, any Information required to be retained by applicable Law.


 


4.14                           Liability.  No party shall have any liability to any
other party in the event that any Information exchanged or provided pursuant to
this Agreement which is an estimate or forecast, or which is based on an
estimate or forecast, is found to be inaccurate in the absence of willful
misconduct by the party providing such Information. No party shall have any
liability to any other party if any Information is destroyed after commercially
reasonable efforts by such party to comply with the provisions of Section 4.13.


 


4.15                           Other Agreements Providing for
Exchange of Information.


 


(a)                                  The
rights and obligations granted under this Article IV are subject to
any specific limitations, qualifications or additional provisions on the
sharing, exchange, retention or confidential treatment of Information set forth
in any Transaction Document.


 


(b)                                 When
any Information provided by one Group to the other (other than Information
provided pursuant to Section 4.13) is no longer needed for the purposes
contemplated by this Agreement or any other Transaction Document or is no
longer required to be retained by applicable Law, the receiving party will
promptly after request of the other party either return to the other party all
Information in a tangible form (including all copies thereof and all notes,
extracts or summaries based thereon) or certify to the other party that it has
destroyed such Information (and such copies thereof and such notes, extracts or
summaries based thereon).


 


4.16                           Production of Witnesses; Records;
Cooperation.


 


(a)                                  After
the Closing Date, except in the case of an adversarial Action by one party
against another party, each party hereto shall use its reasonable 


 


40

















 


efforts to make available
to each other party, upon written request, the former, current and future
directors, officers, employees, other personnel and agents of the members of
its respective Group as witnesses and any books, records or other documents
within its control or which it otherwise has the ability to make available, to
the extent that any such person (giving consideration to business demands of
such directors, officers, employees, other personnel and agents) or books,
records or other documents may reasonably be required in connection with any
Action or IP Application in which the requesting party may from time to time be
involved, regardless of whether such Action or IP Application is a matter with
respect to which indemnification may be sought hereunder.  The requesting party shall bear all costs
and expenses in connection therewith.


 


(b)                                 If
an Indemnifying Party chooses to defend or to seek to compromise or settle any
Third Party Claim, the other parties shall make available to such Indemnifying
Party, upon written request, the former, current and future directors,
officers, employees, other personnel and agents of the members of its respective
Group as witnesses and any books, records or other documents within its control
or which it otherwise has the ability to make available, to the extent that any
such person (giving consideration to business demands of such directors,
officers, employees, other personnel and agents) or books, records or other
documents may reasonably be required in connection with such defense,
settlement or compromise, or the prosecution, evaluation or pursuit thereof, as
the case may be, and shall otherwise cooperate in such defense, settlement or
compromise, or such prosecution, evaluation or pursuit, as the case may be.


 


(c)                                  Without
limiting the foregoing, the parties shall cooperate and consult to the extent
reasonably necessary with respect to any Actions.


 


(d)                                 Without
limiting any provision of this Section, each of the parties agrees to
cooperate, and to cause each member of its respective Group to cooperate, with
each other in the defense of any infringement or similar claim with respect any
intellectual property and shall not claim to acknowledge, or permit any member
of its respective Group to claim to acknowledge, the validity or infringing use
of any intellectual property of a third Person in a manner that would hamper or
undermine the defense of such infringement or similar claim except as required
by Law.


 


(e)                                  The
obligation of the parties to provide witnesses pursuant to this Section 4.16
is intended to be interpreted in
a manner so as to facilitate cooperation and shall include the obligation to
provide as witnesses inventors and other officers without regard to whether the
witness or the employer of the witness could assert a possible business
conflict (subject to the exception set forth in the first sentence of Section 4.16(a)).


 


(f)                                    In
connection with any matter contemplated by this Section 4.16, the
parties will enter into a mutually acceptable joint defense agreement so as to
maintain to the extent practicable any applicable attorney-client privilege,
work product immunity or other applicable privileges or immunities of any
member of any Group.


 


41

















 


4.17                           Privilege. 
The provision of any information pursuant to this Article IV
shall not be deemed a waiver of any privilege, including privileges arising
under or related to the attorney-client privilege or any other applicable
privileges (a “Privilege”). 
Following the Closing Date, neither Genworth or its Subsidiaries nor GE
or its Subsidiaries will be required to provide any information pursuant to
this Article IV if the provision of such information would serve as
a waiver of any Privilege afforded such information.


 


ARTICLE V


 


RELEASE; INDEMNIFICATION


 


5.1                                 Release of Pre-Closing Claims.


 


(a)                                  Except
as provided in (i) Section 5.1(c), (ii) any exceptions to the indemnification
provisions of Sections 5.2, 5.3 and 5.4, and (iii) any
Transaction Document, effective as of the Closing Date, Genworth does hereby,
for itself and each other member of the Genworth Group, their respective
Affiliates, successors and assigns, and all Persons who at any time prior to
the Closing Date have been directors, officers, agents or employees of any
member of the Genworth Group (in each case, in their respective capacities as
such), remise, release and forever discharge GE and the other members of the GE
Group, their respective Affiliates, successors and assigns, and all Persons who
at any time prior to the Closing Date have been stockholders, directors,
officers, agents or employees of any member of the GE Group (in each case, in
their respective capacities as such), and their respective heirs, executors,
administrators, successors and assigns, from any and all Liabilities
whatsoever, whether at Law or in equity (including any right of contribution),
whether arising under any contract or agreement, by operation of Law or
otherwise, existing or arising from any acts or events occurring or failing to
occur or alleged to have occurred or to have failed to occur or any conditions
existing or alleged to have existed on or before the Closing Date, including in
connection with the transactions and all other activities to implement the
Separation, the Initial Public Offering and any of the other transactions
contemplated hereunder and under the Transaction Documents.


 


(b)                                 Except
as provided in (i) Section 5.1(c), (ii) any exceptions to the
indemnification provisions of Sections 5.2, 5.3 and 5.4,
and (iii) any Transaction Document, effective as of the Closing Date, GE does
hereby, for itself and each other member of the GE Group, their respective Affiliates,
successors and assigns, and all Persons who at any time prior to the Closing
Date have been stockholders, directors, officers, agents or employees of any
member of the GE Group (in each case, in their respective capacities as such),
remise, release and forever discharge Genworth, the respective members of the
Genworth Group, their respective Affiliates, successors and assigns, and all
Persons who at any time prior to the Closing Date have been stockholders,
directors, officers, agents or employees of any member of the Genworth Group
(in each case, in their respective capacities as such), and their respective
heirs, executors, administrators, successors and assigns, from any and all
Liabilities whatsoever, whether at Law or in equity (including any right of
contribution), whether 


 


42

















 


arising under any
contract or agreement, by operation of Law or otherwise, existing or arising
from any acts or events occurring or failing to occur or alleged to have occurred
or to have failed to occur or any conditions existing or alleged to have
existed on or before the Closing Date, including in connection with the
transactions and all other activities to implement the Separation, the Initial
Public Offering and any of the other transactions contemplated hereunder and
under the Transaction Documents.


 


(c)                                  Nothing
contained in Section 5.1(a) or Section 5.1(b) shall
impair any right of any Person to enforce this Agreement, any Transaction
Document or any agreements, arrangements, commitments or understandings that
are specified in Section 2.4(b)
or the applicable Schedules thereto not to terminate as of the Closing Date, in
each case in accordance with its terms. Nothing contained in Section 5.1(a)
or Section 5.1(b) shall release any Person from:


 


(i)                                     any
Liability provided in or resulting from any agreement among any members of the
GE Group or the Genworth Group that is specified in Section 2.4(b)
or the applicable Schedules thereto not to terminate as of the Closing Date, or
any other Liability specified in such Section 2.4(b) not to
terminate as of the Closing Date;


 


(ii)                                  any
Liability, contingent or otherwise, assumed, transferred, assigned or allocated
to the Group of which such Person is a member in accordance with, or any other
Liability of any member of any Group under, this Agreement or any Transaction
Document;


 


(iii)                               any
Liability for the sale, lease, construction or receipt of goods, property or
services purchased, obtained or used in the ordinary course of business by a
member of one Group from a member of the other Group prior to the Closing Date;


 


(iv)                              any
Liability for unpaid amounts for products or services or refunds owing on
products or services due on a value-received basis for work done by a member of
one Group at the request or on behalf of a member of the other Group; or


 


(v)                                 any
Liability that the parties may have with respect to indemnification or
contribution pursuant to this Agreement or otherwise for claims brought against
the parties by third Persons, which Liability shall be governed by the
provisions of this Article V and, if applicable, the appropriate
provisions of the Transaction Documents.


 


In addition, nothing
contained in Section 5.1(a) shall release GE from indemnifying any
director, officer or employee of Genworth who was a director, officer or
employee of GE or any of its Affiliates on or prior to the Closing Date, to the
extent such director, officer or employee is or becomes a named defendant in
any Action with respect to which he or she was entitled to such indemnification
pursuant to then existing obligations.


 


(d)                                 Genworth
shall not make, and shall not permit any member of the Genworth Group to make,
any claim or demand, or commence any Action asserting any 


 


43

















 


claim or demand,
including any claim of contribution or any indemnification, against GE or any
member of the GE Group, or any other Person released pursuant to Section 5.1(a),
with respect to any Liabilities released pursuant to Section 5.1(a).  GE shall not, and shall not permit any
member of the GE Group, to make any claim or demand, or commence any Action
asserting any claim or demand, including any claim of contribution or any
indemnification against Genworth or any member of the Genworth Group, or any
other Person released pursuant to Section 5.1(b), with respect to
any Liabilities released pursuant to Section 5.1(b).


 


(e)                                  It
is the intent of each of GE and Genworth, by virtue of the provisions of this Section 5.1,
to provide for a full and complete release and discharge of all Liabilities
existing or arising from all acts and events occurring or failing to occur or
alleged to have occurred or to have failed to occur and all conditions existing
or alleged to have existed on or before the Closing Date, between or among
Genworth or any member of the Genworth Group, on the one hand, and GE or any
member of the GE Group, on the other hand (including any contractual agreements
or arrangements existing or alleged to exist between or among any such members
on or before the Closing Date), except as expressly set forth in Section 5.1(c).  At any time, at the request of any other
party, each party shall cause each member of its respective Group to execute
and deliver releases reflecting the provisions hereof.


 


5.2                                 General Indemnification by Genworth.  Except as provided in Section 5.5,
Genworth shall, and shall cause the other members of the Genworth Group to,
indemnify defend and hold harmless on an After-Tax Basis each member of the GE Group
and each of their respective directors, officers and employees, and each of the
heirs, executors, successors and assigns of any of the foregoing (collectively,
the “GE Indemnified Parties”), from and against any and all Liabilities
of the GE Indemnified Parties relating to, arising out of or resulting from any
of the following items (without duplication):


 


(a)                                  the
failure of Genworth or any other member of the Genworth Group or any other
Person to pay, perform or otherwise promptly discharge any Genworth Liabilities
or Genworth Contract in accordance with its respective terms, whether prior to
or after the Closing Date;


 


(b)                                 any
Genworth Liability or any Genworth Contract;


 


(c)                                  the
GE Guarantees;


 


(d)                                 any
breach by any member of the Genworth Group of this Agreement or any of the
Transaction Documents (other than the Transaction Documents set forth on Schedule 5.2(d))
or any action by Genworth in contravention of its Amended and Restated
Certificate of Incorporation or Amended and Restated Bylaws; and


 


(e)                                  any
untrue statement or alleged untrue statement of a material fact contained in
any GE Public Filing or any other document filed with the SEC by any 


 


44

















 


member of the GE Group
pursuant to the Securities Act or the Exchange Act, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to
the extent, that those Liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information that is
either furnished to any of the GE Indemnified Parties by any member of the
Genworth Group or incorporated by reference by any GE Indemnified Party from
any filings made by any member of the Genworth Group with the SEC pursuant to
the Securities Act or the Exchange Act, and then only if that statement or
omission was made or occurred after the Closing Date.


 


5.3                                 General Indemnification by GE.  Except as provided in Section 5.5,
GE shall indemnify, defend and hold harmless on an After-Tax Basis each member
of the Genworth Group and each of their respective directors, officers and
employees, and each of the heirs, executors, successors and assigns of any of
the foregoing (collectively, the “Genworth Indemnified Parties”), from
and against any and all Liabilities of the Genworth Indemnified Parties
relating to, arising out of or resulting from any of the following items
(without duplication):


 


(a)                                  the
failure of any member of the GE Group or any other Person to pay, perform or
otherwise promptly discharge any Liabilities of the GE Group other than the
Genworth Liabilities, whether prior to or after the Closing Date or the date
hereof;


 


(b)                                 any
Excluded Liability or any Liability of a member of the GE Group other than the
Genworth Liabilities;


 


(c)                                  any
breach by any member of the GE Group of this Agreement or any of the
Transaction Documents (other than the Transaction Documents set forth on Schedule 5.3(c));
and


 


(d)                                 any
untrue statement or alleged untrue statement of a material fact contained in
any document filed with the SEC by any member of the Genworth Group pursuant to
the Securities Act or the Exchange Act other than the Registration Statements,
or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that those Liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information that is either furnished to any member of the Genworth
Indemnified Parties by any member of the GE Group or incorporated by reference
by any Genworth Indemnified Party from any GE Public Filings or any other
document filed with the SEC by any member of the GE Group pursuant to the Securities
Act or the Exchange Act.


 


45

















 


5.4                                 Registration Statement
Indemnification.


 


(a)                                  Genworth
agrees to indemnify and hold harmless on an After-Tax Basis the GE Indemnified
Parties and each Person, if any, who controls any member of the GE Group within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (collectively, the “Registration Indemnified Parties”) from
and against any and all Liabilities arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such Liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with (i)
information relating to a Registration Indemnified Party set forth on pages
           and under the
heading “Description of Selling Stockholders” of the IPO Registration Statement,
on pages            and under
the heading “Description of Selling Securityholders” of the Equity Units
Registration Statement, or on pages
           and under the
heading “Description of Selling Securityholders” of the Series A Preferred
Stock Registration Statement (ii) financial information, if any, provided by a
Registration Indemnified Party in writing to Genworth expressly for use in the
Registration Statement or Prospectus and (iii) information relating to any
underwriter furnished in writing to Genworth by or on behalf of such
underwriter expressly for use in the Registration Statement or Prospectus.


 


(b)                                 Each
Registration Indemnified Party agrees, severally and not jointly, to indemnify
and hold harmless on an After-Tax Basis Genworth and its Subsidiaries and any
of their respective directors or officers who sign any Registration Statement,
and any person who controls Genworth within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from Genworth to each Registration Indemnified
Party, but only with respect to (i) information relating to such Registration
Indemnified Party set forth on pages
           and under the
heading “Description of Selling Stockholders” of the IPO Registration
Statement, on pages
           and under the
heading “Description of Selling Securityholders” of the Equity Units
Registration Statement, or on pages
           and under the
heading “Description of Selling Securityholders” of the Series A Preferred
Stock Registration Statement and (ii) financial information, if any, provided
by such Registration Indemnified Party in writing to Genworth expressly for use
in the Registration Statement or Prospectus. 
For purposes of this Section 5.4(b), any information
relating to any underwriter that is contained in a Registration Statement or
Prospectus shall not be deemed to be information relating to a Registration
Indemnified Party.  If any Action shall
be brought against Genworth or its Subsidiaries, any of their respective
directors or officers, or any such controlling person based on any Registration
Statement or Prospectus and in respect of which indemnity may be sought against
a Registration Indemnified Party pursuant to this paragraph (b), such
Registration Indemnified Party shall have the rights and duties given to
Genworth by Section 5.5 hereof (except that if Genworth shall have
assumed the defense thereof, such Registration Indemnified Party shall not be
required to, but may, employ separate counsel therein and participate in the
defense thereof, but the fees and expenses of such counsel shall be at such
Registration Indemnified Party’s expense), and Genworth, its 


 


46

















 


directors or officers,
and any such controlling person shall have the rights and duties given to such
Registration Indemnified Party by Section 5.5 hereof.


 


5.5                                 Contribution.


 


(a)                                  If
the indemnification provided for in this Article V is unavailable
to, or insufficient to hold harmless on an After-Tax Basis, an indemnified
party under Section 5.2(e), Section 5.3(d) or Section 5.4
hereof in respect of any Liabilities referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such Liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and the indemnified party in connection with the actions
which resulted in Liabilities as well as any other relevant equitable
considerations.  The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or indemnified party, and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.  For the purposes of this Section 5.5(a),  the information relating to the Registration
Indemnified Party set forth on pages
           and under the
heading “Description of Selling Stockholders” of the IPO Registration
Statement, on pages      and under the heading “Description
of Selling Securityholders” of the Equity Units Registration Statement, or on
pages            and under
the heading “Description of Selling Securityholders” of the Series A Preferred
Stock Registration Statement shall be the only “information supplied by” such
Registration Indemnified Parties.


 


(b)                                 The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5.5 were determined by a pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (a) above. The amount
paid or payable by an indemnified party as a result of the Liabilities referred
to in paragraph (a) above, shall be deemed to include, subject to the
limitations set forth above any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating any claim
or defending any Action. 
Notwithstanding the provisions of this Section 5.5, a
Registration Indemnified Party shall not be required to contribute any amount in
excess of the amount by which the proceeds to such Registration Indemnified
Party exceeds the amount of any damages which such Registration Indemnified
Party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.


 


5.6                                 Indemnification Obligations Net of
Insurance Proceeds and Other Amounts, On an After-Tax Basis.


 


(a)                                  Any
Liability subject to indemnification or contribution pursuant to this Article V
will be net of Insurance Proceeds that actually reduce the amount of the 


 


47

















 


Liability and will be
determined on an After-Tax Basis. 
Accordingly, the amount which any party (an “Indemnifying Party”)
is required to pay to any Person entitled to indemnification hereunder (an “Indemnified
Party”) will be reduced by any Insurance Proceeds theretofore actually
recovered by or on behalf of the Indemnified Party in respect of the related
Liability.  If an Indemnified Party
receives a payment (an “Indemnity Payment”) required by this Agreement
from an Indemnifying Party in respect of any Liability and subsequently
receives Insurance Proceeds, then the Indemnified Party will pay to the
Indemnifying Party an amount equal to the excess of the Indemnity Payment
received over the amount of the Indemnity Payment that would have been due if
the Insurance Proceeds had been received, realized or recovered before the
Indemnity Payment was made.


 


(b)                                 An
insurer who would otherwise be obligated to pay any claim shall not be relieved
of the responsibility with respect thereto or, solely by virtue of the
indemnification provisions hereof, have any subrogation rights with respect
thereto.  The Indemnified Party shall
use its commercially reasonable efforts to seek to collect or recover any
third-party (which shall not include any captive insurance subsidiary)
Insurance Proceeds (other than Insurance Proceeds under an arrangement where
future premiums are adjusted to reflect prior claims in excess of prior
premiums) to which the Indemnified Party is entitled in connection with any
Liability for which the Indemnified Party seeks indemnification pursuant to
this Article V; provided that the Indemnified Party’s
inability to collect or recover any such Insurance Proceeds shall not limit the
Indemnifying Party’s obligations hereunder.


 


(c)                                  The
term “After-Tax Basis” as used in this Article V means that, in
determining the amount of the payment necessary to indemnify any party against,
or reimburse any party for, Liabilities, the amount of such Liabilities will be
determined net of any reduction in Tax derived by the indemnified party as the
result of sustaining or paying such Liabilities, and the amount of such
indemnification payment will be increased (i.e., “grossed up”) by the amount
necessary to satisfy any income or franchise Tax liabilities incurred by the
indemnified party as a result of its receipt of, or right to receive, such
indemnification payment (as so increased), so that the indemnified party is put
in the same net after-Tax economic position as if it had not incurred such
Liabilities, in each case without taking into account any impact on the tax
basis that an indemnified party has in its assets.


 


5.7                                 Procedures for Indemnification of
Third Party Claims.


 


(a)                                  If
an Indemnified Party shall receive notice or otherwise learn of the assertion
by a Person (including any Governmental Authority) who is not a member of the
GE Group or the Genworth Group of any claim or of the commencement by any such
Person of any Action (collectively, a
“Third Party Claim”) with respect to which an Indemnifying Party may be
obligated to provide indemnification to such Indemnified Party pursuant to Section 5.2,
Section 5.3 or Section 5.4, or any other Section of
this Agreement or any Transaction Document, such Indemnified Party shall give
such Indemnifying Party written notice thereof within 20 days after becoming
aware of such Third Party Claim.  Any
such notice shall describe the Third Party Claim in reasonable 


 


48

















 


detail.  Notwithstanding the foregoing, the failure
of any Indemnified Party or other Person to give notice as provided in this Section 5.7(a)
shall not relieve the Indemnifying Party of its obligations under this Article V,
except to the extent that such Indemnifying Party is actually prejudiced by
such failure to give notice.


 


(b)                                 An
Indemnifying Party may elect to defend (and to seek to settle or compromise),
at such Indemnifying Party’s own expense and by such Indemnifying Party’s own
counsel, any Third Party Claim.  Within
30 days after the receipt of notice from an Indemnified Party in accordance
with Section 5.7(a) (or sooner, if the nature of such Third Party
Claim so requires), the Indemnifying Party shall notify the Indemnified Party
of its election whether the Indemnifying Party will assume responsibility for
defending such Third Party Claim, which election shall specify any reservations
or exceptions.  After notice from an
Indemnifying Party to an Indemnified Party of its election to assume the
defense of a Third Party Claim, such Indemnified Party shall have the right to
employ separate counsel and to participate in (but not control) the defense,
compromise, or settlement thereof, but the fees and expenses of such counsel
shall be the expense of such Indemnified Party except as set forth in the next
sentence.  If the Indemnifying Party has
elected to assume the defense of the Third Party Claim but has specified, and
continues to assert, any reservations or exceptions in such notice, then, in
any such case, the reasonable fees and expenses of one separate counsel for all
Indemnified Parties shall be borne by the Indemnifying Party, but the
Indemnifying Party shall be entitled to reimbursement by the Indemnified Party
for payment of any such fees and expenses to the extent that it establishes
that such reservations and exceptions were proper.


 


(c)                                  If
an Indemnifying Party elects not to assume responsibility for defending a Third
Party Claim, or fails to notify an Indemnified Party of its election as
provided in Section 5.7(b), such Indemnified Party may defend such
Third Party Claim at the cost and expense of the Indemnifying Party.


 


(d)                                 Unless
the Indemnifying Party has failed to assume the defense of the Third Party
Claim in accordance with the terms of this Agreement, no Indemnified Party may
settle or compromise any Third Party Claim without the consent of the
Indemnifying Party.  No Indemnifying
Party shall consent to entry of any judgment or enter into any settlement of any
pending or threatened Third Party Claim in respect of which any Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party without the consent of the Indemnified
Party if (i) the effect thereof is to permit any injunction, declaratory
judgment, other order or other nonmonetary relief to be entered, directly or
indirectly against such Indemnified Party and (ii) such settlement does not
include an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such Third Party Claim.


 


(e)                                  The
provisions of this Section 5.7 shall not apply to Taxes (which are
covered by the Tax Matters Agreement).


 


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5.8                                 Additional Matters.


 


(a)                                  Indemnification
or contribution payments in respect of any Liabilities for which an Indemnified
Party is entitled to indemnification or contribution under this Article V
shall be paid by the Indemnifying Party to the Indemnified Party as such
Liabilities are incurred upon demand by the Indemnified Party, including
reasonably satisfactory documentation setting forth the basis for the amount of
such indemnification or contribution payment, including documentation with
respect to calculations made on an After-Tax Basis and consideration of any
Insurance Proceeds that actually reduce the amount of such Liabilities.  The indemnity and contribution agreements
contained in this Article V shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Indemnified Party; (ii) the knowledge by the Indemnified Party of
Liabilities for which it might be entitled to indemnification or contribution
hereunder; and (iii) any termination of this Agreement.


 


(b)                                 Any
claim on account of a Liability which does not result from a Third Party Claim
shall be asserted by written notice given by the Indemnified Party to the
applicable Indemnifying Party.  Such
Indemnifying Party shall have a period of 30 days after the receipt of such
notice within which to respond thereto. 
If such Indemnifying Party does not respond within such 30-day period,
such Indemnifying Party shall be deemed to have refused to accept
responsibility to make payment.  If such
Indemnifying Party does not respond within such 30-day period or rejects such
claim in whole or in part, such Indemnified Party shall be free to pursue such
remedies as may be available to such party as contemplated by this Agreement
and the Transaction Documents without prejudice to its continuing rights to
pursue indemnification or contribution hereunder.


 


(c)                                  If
payment is made by or on behalf of any Indemnifying Party to any Indemnified
Party in connection with any Third Party Claim, such Indemnifying Party shall
be subrogated to and shall stand in the place of such Indemnified Party as to
any events or circumstances in respect of which such Indemnified Party may have
any right, defense or claim relating to such Third Party Claim against any
claimant or plaintiff asserting such Third Party Claim or against any other
Person.  Such Indemnified Party shall
cooperate with such Indemnifying Party in a reasonable manner, and at the cost
and expense of such Indemnifying Party, in prosecuting any subrogated right,
defense or claim.


 


(d)                                 In
an Action in which the Indemnifying Party is not a named defendant, if either
the Indemnified Party or Indemnifying Party shall so request, the parties shall
endeavor to substitute the Indemnifying Party for the named defendant if they
conclude that substitution is desirable and practical.  If such substitution or addition cannot be
achieved for any reason or is not requested, the named defendant shall allow
the Indemnifying Party to manage the Action as set forth in this section, and
the Indemnifying Party shall fully indemnify the named defendant against all
costs of defending the Action (including court costs, sanctions imposed by a
court, attorneys’ fees, experts fees and all other external expenses), the
costs of any judgment or settlement, and the cost of any interest or penalties
relating to any judgment or settlement.


 


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(e)                                  The
provisions of this Section 5.8 shall not apply to Taxes and related
matters covered under Section 16 of the Tax Matters Agreement.


 


5.9                                 Remedies Cumulative; Limitations of
Liability.  The rights provided
in this Article V shall be cumulative and, subject to the
provisions of Article VII, shall not preclude assertion by any
Indemnified Party of any other rights or the seeking of any and all other remedies
against any Indemnifying Party. 
Notwithstanding the foregoing, neither Genworth or its Affiliates, on
the one hand, nor any GE Party, on the other hand, shall be liable to the other
for any special, indirect, incidental, punitive or consequential damages
(provided that any such liability with respect to a Third Party Claim shall be
considered direct damages) of the other arising in connection with the
Transactions.


 


5.10                           Survival of Indemnities.  The rights and obligations of each of GE and
Genworth and their respective Indemnified Parties under this Article V
shall survive the sale or other transfer by any party of any Assets or
businesses or the assignment by it of any Liabilities.


 


ARTICLE VI


 


OTHER AGREEMENTS


 


6.1                                 Further Assurances.


 


(a)                                  In
addition to the actions specifically provided for elsewhere in this Agreement,
each of the parties hereto will cooperate with each other and use (and will
cause their respective Subsidiaries and Affiliates to use) commercially
reasonable efforts, prior to, on and after the Closing Date, to take, or to
cause to be taken, all actions, and to do, or to cause to be done, all things
reasonably necessary on its part under applicable Law or contractual
obligations to consummate and make effective the transactions contemplated by
this Agreement and the Transaction Documents.


 


(b)                                 Without
limiting the foregoing, prior to, on and after the Closing Date, each party
hereto shall cooperate with the other parties, and without any further
consideration, but at the expense of the requesting party from and after the
Closing Date, to execute and deliver, or use its commercially reasonable
efforts to cause to be executed and delivered, all instruments, including
instruments of conveyance, assignment and transfer, and to make all filings
with, and to obtain all consents, approvals or authorizations of, any
Governmental Authority or any other Person under any permit, license,
agreement, indenture or other instrument (including any Consents or
Governmental Approvals), and to take all such other actions as such party may
reasonably be requested to take by any other party hereto from time to time,
consistent with the terms of this Agreement and the Transaction Documents, in
order to effectuate the provisions and purposes of this Agreement and the
Transaction Documents and the transfers of the Genworth Assets and the
assignment and assumption of the Genworth 
Liabilities and the other transactions contemplated hereby and thereby.  Without limiting the foregoing, each party
will, at the reasonable request, cost and expense of 


 


51

















 


any other party, take
such other actions as may be reasonably necessary to vest in such other party
good and marketable title to the Assets allocated to such party under this
Agreement or any of the Transaction Documents, free and clear of any Security
Interest, if and to the extent it is practicable to do so.


 


(c)                                  On
or prior to the Closing Date, GE and Genworth in their respective capacities as
direct and indirect stockholders of their respective Subsidiaries, shall each
ratify any actions that are reasonably necessary or desirable to be taken by
GE, Genworth or any other Subsidiary of GE or Genworth, as the case may be, to
effectuate the transactions contemplated by this Agreement.  On or prior to the Closing Date, GEFAHI and
Genworth shall take all actions as may be necessary to approve the stock-based
employee benefit plans of Genworth in order to satisfy the requirements of Rule
16b-3 under the Exchange Act and the applicable rules and regulations of The
New York Stock Exchange.


 


6.2                                 Confidentiality.


 


(a)                                  From
and after the Closing, subject to Section 6.2(c) and except as
contemplated by this Agreement or any Transaction Document, the GE Parties
shall not, and shall cause their respective Affiliates and their respective
officers, directors, employees, and other agents and representatives, including
attorneys, agents, customers, suppliers, contractors, consultants and other
representatives of any Person providing financing (collectively, “Representatives”),
not to, directly or indirectly, disclose, reveal, divulge or communicate to any
Person other than Representatives of such party or of its Affiliates who
reasonably need to know such information in providing services to any member of
the GE Group or use or otherwise exploit for its own benefit or for the benefit
of any third party, any Genworth Confidential Information.  If any disclosures are made in connection
with providing services to any member of the GE Group under this Agreement or
any Transaction Document, then the Genworth Confidential Information so
disclosed shall be used only as required to perform the services.  The GE Parties shall use the same degree of
care to prevent and restrain the unauthorized use or disclosure of the Genworth
Confidential Information by any of their Representatives as they currently use
for their own confidential information of a like nature, but in no event less
than a reasonable standard of care.  For
purposes of this Section 6.2, any Information, material or
documents relating to the Genworth Business currently or formerly conducted, or
proposed to be conducted, by any member of the Genworth Group furnished to or
in possession of the GE Parties, irrespective of the form of communication, and
all notes, analyses, compilations, forecasts, data, translations, studies,
memoranda or other documents prepared by the GE Parties or their respective
officers, directors and Affiliates, that contain or otherwise reflect such
information, material or documents is hereinafter referred to as  “Genworth Confidential Information.”  “Genworth Confidential Information”
does not include, and there shall be no obligation hereunder with respect to,
information that (i) is or becomes generally available to the public, other
than as a result of a disclosure by any of the GE Parties not otherwise
permissible hereunder, (ii) such GE Party can demonstrate was or became
available to such GE Party from a source other than Genworth or its Affiliates
or (iii) is developed independently by such GE Party without reference to the
Genworth 


 


52

















 


Confidential Information;
provided, however, that, in the case of clause (ii), the source
of such information was not known by the GE Parties to be bound by a
confidentiality agreement with, or other contractual, legal or fiduciary
obligation of confidentiality to, Genworth or any member of the Genworth Group
with respect to such information.


 


(b)                                 From
and after the Closing, subject to Section 6.2(c) and except as
contemplated by this Agreement or any Transaction Document, Genworth shall not,
and shall cause its Affiliates and their respective Representatives, not to,
directly or indirectly, disclose, reveal, divulge or communicate to any Person
other than Representatives of such party or of its Affiliates who reasonably
need to know such information in providing services to Genworth or any member
of the Genworth Group or use or otherwise exploit for its own benefit or for
the benefit of any third party, any GE Confidential Information.  If any disclosures are made in connection
with providing services to any member of the Genworth Group under this
Agreement or any Transaction Document, then the GE Confidential Information so
disclosed shall be used only as required to perform the services.  The Genworth Group shall use the same degree
of care to prevent and restrain the unauthorized use or disclosure of the GE
Confidential Information by any of their Representatives as they currently use
for their own confidential information of a like nature, but in no event less
than a reasonable standard of care.  For
purposes of this Section 6.2, any Information, material or
documents relating to the businesses currently or formerly conducted, or proposed
to be conducted, by GE or any of its Affiliates (other than any member of the
Genworth Group) furnished to or in possession of any member of the Genworth
Group, irrespective of the form of communication, and all notes, analyses,
compilations, forecasts, data, translations, studies, memoranda or other
documents prepared by Genworth, any member of the Genworth Group or their
respective officers, directors and Affiliates, that contain or otherwise
reflect such information, material or documents is hereinafter referred to
as  “GE Confidential Information.”  “GE Confidential Information” does
not include, and there shall be no obligation hereunder with respect to,
information that (i) is or becomes generally available to the public, other
than as a result of a disclosure by any member of the Genworth Group not
otherwise permissible hereunder, (ii) Genworth can demonstrate was or became
available to Genworth from a source other than the GE Parties and their
respective Affiliates or (iii) is developed independently by such member of the
Genworth Group without reference to the GE Confidential Information; provided,
however, that, in the case of clause (ii), the source of such
information was not known by Genworth to be bound by a confidentiality
agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, any of the GE Parties or their respective Affiliates with
respect to such information.


 


(c)                                  If
any of the GE Parties or their respective Affiliates, on the one hand, or
Genworth or its Affiliates, on the other hand, are requested or required (by
oral question, interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process) by any Governmental
Authority or pursuant to applicable Law to disclose or provide any Genworth
Confidential Information or GE Confidential Information (other than with
respect to any such information furnished pursuant to the provisions of
Article IV of this Agreement), as applicable, the entity or person receiving
such request or demand shall use all reasonable efforts to provide the


 


53

















 


other party with written
notice of such request or demand as promptly as practicable under the
circumstances so that such other party shall have an opportunity to seek an
appropriate protective order.  The party
receiving such request or demand agrees to take, and cause its representatives
to take, at the requesting party’s expense, all other reasonable steps
necessary to obtain confidential treatment by the recipient.  Subject to the foregoing, the party that
received such request or demand may thereafter disclose or provide any Genworth
Confidential Information or GE Confidential Information, as the case may be, to
the extent required by such Law (as so advised by counsel) or by lawful process
or such Governmental Authority.


 


6.3                                 Insurance Matters.


 


(a)                                  Schedule 6.3
sets forth the Insurance Policies under which members of the Genworth Group
will continue to have coverage until the Trigger Date, and the amounts payable
by Genworth to GE under each such Insurance Policy from and after the Closing
Date.  Members of the Genworth Group
will pay retrospective premium adjustments under each such Insurance Policy
based on their loss experience under the Insurance Policy and in accordance
with the pricing methodologies set forth on Schedule 6.3.  Except as otherwise set forth on Schedule 6.3,
the members of the Genworth Group will have coverage under all Insurance
Policies with respect to periods prior to the Trigger Date in accordance with
the terms of each such Insurance Policy. 
GE and Genworth agree to cooperate in good faith to provide for an
orderly transition of insurance coverage from the Closing Date through the
Trigger Date, and for the treatment of any Insurance Policies that will remain
in effect following the Trigger Date on a mutually agreeable basis.  Genworth may cancel coverage under any
Insurance Policy by written notice to GE at least [        ]
days prior to such cancellation.  In no
event shall GE, any other member of the GE Group or any GE Indemnified Party
have liability or obligation whatsoever to any member of the Genworth Group if
any Insurance Policy or other contract or policy of insurance shall be
terminated or otherwise cease to be in effect or for any reason shall be
unavailable or inadequate to cover any Liability of any member of the Genworth
Group for any reason whatsoever or shall not be renewed or extended beyond the
current expiration date.  GE shall
provide notice to Genworth promptly upon its becoming aware that any Insurance
Policy has been terminated or is otherwise no longer in effect or is reasonably
likely to be terminated or otherwise cease to be in effect.


 


(b)                                 (i)                                     Except
as otherwise provided in any Transaction Document, the parties intend by this
Agreement that Genworth and each other member of the Genworth Group be
successors-in-interest to all rights that any member of the Genworth Group may
have as of the Closing Date as a subsidiary, affiliate, division or department
of GE prior to the Closing Date under any policy of insurance issued to GE by
any insurance carrier or under any agreements related to such policies executed
and delivered prior to the Closing
Date, including any rights such member of the Genworth Group may have, as an
insured or additional named insured, subsidiary, affiliate, division or
department, to avail itself of any such policy of insurance or any such
agreements related to such policies as in effect prior to the Closing Date. At the
request of Genworth, GE shall take all reasonable steps, including the
execution and delivery of


 


54

















 


any instruments, to
effect the foregoing; provided, however that GE shall not be
required to pay any amounts, waive any rights or incur any Liabilities in
connection therewith.


 


(ii)                                  Except
as otherwise contemplated by any Transaction Document, after the Closing Date,
none of GE or Genworth or any member of their respective Groups shall, without
the consent of the other, provide any such insurance carrier with a release, or
amend, modify or waive any rights under any such policy or agreement, if such
release, amendment, modification or waiver would adversely affect any rights or
potential rights of any member of the other Group thereunder; provided, however
that the foregoing shall not (A) preclude any member of any Group from
presenting any claim or from exhausting any policy limit, (B) require any
member of any Group to pay any premium or other amount or to incur any Liability, or (C) require any
member of any Group to renew, extend or continue any policy in force. Each of
Genworth and GE will share such information as is reasonably necessary in order
to permit the other to manage and conduct its insurance matters in an orderly
fashion.


 


(c)                                  This
Agreement shall not be considered as an attempted assignment of any policy of
insurance or as a contract of insurance and shall not be construed to waive any
right or remedy of any member of the GE Group in respect of any Insurance
Policy or any other contract or policy of insurance.


 


(d)                                 Genworth
does hereby, for itself and each other member of the Genworth Group, agree that
no member of the GE Group or any GE Indemnified Party shall have any Liability
whatsoever to Genworth or any
other member of the Genworth Group as a result of the insurance policies and
practices of GE and its Affiliates as in effect at any time prior to the
Closing Date, including as a result of the level or scope of any such
insurance, the creditworthiness of any insurance carrier, the terms and
conditions of any policy, the adequacy or timeliness of any notice to any
insurance carrier with respect to any claim or potential claim or otherwise.


 


(e)                                  Nothing
in this Agreement shall be deemed to restrict any member of the Genworth Group
from acquiring at its own expense any other insurance policy in respect of any
Liabilities or covering any period; provided that Genworth shall give GE
prompt written notice of any such insurance policy acquired prior to the
Trigger Date.


 


6.4                                 Allocation of Costs and Expenses.  GE shall pay (or, to the extent incurred by
and paid for by any member of the Genworth Group, will promptly reimburse such
party for any and all amounts so paid) for all out-of-pocket fees, costs and
expenses incurred by Genworth or any member of the GE Group prior to the
consummation of the Initial Public Offering in connection with the
Transactions, including (a) the preparation and negotiation of this Agreement,
each Transaction Document (unless otherwise expressly provided therein) and all
other documentation related to the Transactions and all related transactions,
including any financing transactions entered into by Genworth or any of its
Subsidiaries, (b) the preparation and execution or filing of any and all other
documents, agreements, forms, applications, contracts or consents associated
with the 


 


55

















 


Transactions and all
related transactions, (c) the preparation and filing of Genworth’s and its
Subsidiaries’ organizational documents, (d) the preparation, printing and
filing of any Registration Statement, including all fees and expenses of
complying with applicable federal, state or foreign securities Laws and
domestic or foreign securities exchange rules and regulations, together with
fees and expenses of counsel retained to effect such compliance, (e) the
preparation, printing and distribution of each Prospectus, (f) the private
letter ruling from the Internal Revenue Service sought in connection with the
Transactions, (g) the initial listing of the Genworth Common Stock on The New
York Stock Exchange and (h) the preparation (including, but not limited to, the
printing of documents) and implementation of Genworth’s or its Subsidiaries’ employee
benefit plans, retirement plans and equity-based plans.


 


6.5                                 Covenants Against Taking Certain
Actions Affecting GE.


 


(a)                                  Genworth
hereby covenants and agrees that it shall not, without the prior written
consent of GE (which it may withhold in its sole and absolute discretion) take,
or cause to be taken, directly or indirectly, any action, including making or
failing to make any election under the Law of any state, which has the effect, directly or
indirectly, of restricting or limiting the ability of GE or any of its
Affiliates to freely sell, transfer, assign, pledge or otherwise dispose of
shares of Genworth Common Stock. 
Without limiting the generality of the foregoing, Genworth shall not,
without the prior written consent of GE (which it may withhold in its sole and
absolute discretion), take any action, or recommend to its stockholders any
action, which would among other things, limit the legal rights of, or deny any
benefit to, GE as a Genworth stockholder in a manner not applicable to Genworth
stockholders generally.


 


(b)                                 Prior
to the Trigger Date, to the extent that any member of the GE Group is a party
to any contract or agreement with a third party (i) that provides that certain
actions of GE’s Subsidiaries may result in GE being in breach of or in default
under such agreement and GE has advised Genworth, or Genworth is otherwise
aware, of the existence of, such contract or agreement (or the relevant
portions thereof), (ii) to which any member of the Genworth Group is a party or
(iii) under which any member of the Genworth Group has performed any
obligations on or before the date hereof, Genworth shall not take, and shall
cause each other member of the Genworth Group not to take, any actions that
reasonably could result in any member of the GE Group being in breach of or in
default under any such contract or agreement; provided, that, except as
set forth in any Transaction Document or otherwise agreed to in writing by any
member of the Genworth Group, the foregoing shall not obligate any member of
the Genworth Group to satisfy any volume assumptions or targets in any such
contracts or agreements that are not specifically applicable to such member of
the Genworth Group in such contracts or agreements.  As of the date hereof, the contracts and agreements described in
clause (i) above are set forth or generally described on Schedule 6.5(b).
Genworth hereby acknowledges and agrees that GE has made available to Genworth
copies of each contract or agreement (or the relevant portion thereof)
described on Schedule 6.5(b). The parties acknowledge and agree
that, after the date hereof, GE may in good faith (and not solely with the
intention of imposing restrictions on Genworth pursuant to this covenant) amend
the referenced agreements or enter into additional 


 


56

















 


contracts or agreements
that provide that certain actions of any member of the Genworth Group may
result in GE being in breach of or in default under such agreements; provided
that GE shall use reasonable efforts to notify and consult with Genworth prior
to entering into any such amendments or additional contracts or agreements to
the extent that compliance therewith (i) could reasonably be expected to have a
material adverse effect on any member of the Genworth Group or (ii) would
discriminate in an adverse way in the treatment of members of the Genworth
Group as compared with GE and its other Affiliates, and shall make available to
Genworth copies of such amendments or additional contracts or agreements.  In such event, Schedule 6.5(b)
shall be deemed to be automatically amended to reflect the addition of any
other contracts or agreements (or relevant portions thereof) of which GE
advises Genworth after the date hereof in accordance with this Section 6.5(b).


 


(c)                                  Genworth
shall not, without GE’s prior written consent, enter into any agreement or
arrangement that, directly or indirectly, binds or purports to bind any member
of the GE Group.


 


6.6                                 No Violations.


 


(a)                                  Genworth
covenants and agrees that it shall not, and shall cause its Subsidiaries not
to, take any action or enter into any commitment or agreement that may
reasonably be anticipated to result, with or without notice and with or without
lapse of time or otherwise, in a contravention or event of default by any
member of the GE Group of: (i) any provisions of applicable Law; (ii) any
provision of the organizational documents of any member of the GE Group; (iii)
any credit agreement or other material instrument binding upon any member of
the GE Group in effect as of the Closing Date; or (iv) any judgment, order or
decree of any Governmental Authority having jurisdiction over any member of the
GE Group or any of its respective assets.


 


(b)                                 GE
covenants and agrees that it shall not, and shall cause its Subsidiaries not to
take any action or enter into any commitment or agreement that may reasonably
be anticipated to result, with or without notice and with or without lapse of
time or otherwise, in a contravention or event of default by any member of the
Genworth Group of: (i) any provisions of applicable Law; (ii) any provision of
the organizational documents of Genworth; (iii) any credit agreement or other
material instrument binding upon Genworth in effect as of the Closing Date;
(iv) the Bridge Loan and the Genworth Senior Notes; or (v) any judgment, order
or decree of any Governmental Authority having jurisdiction over Genworth or
any of its Assets.


 


(c)                                  Genworth
and GE agree to provide to the other any information and documentation
reasonably requested by the other for the purpose of evaluating and ensuring
compliance with Sections 6.6(a) and Section 6.6(b)
hereof.


 


(d)                                 Notwithstanding
Section 6.6(b), nothing in this Agreement is intended to limit or
restrict in any way GE’s or its Affiliates’ rights as shareholders of Genworth.


 


57

















 


6.7                                 Registration Statements.  To the extent necessary to enable the
unrestricted transfer of the applicable shares of Genworth Common Stock, upon
consummation of the Initial Public Offering, Genworth shall file and cause to
remain effective a registration statement with the SEC to register Genworth
Common Stock that may be acquired by employees of any member of the Genworth
Group as contemplated by GE’s or its Subsidiaries’ employee stock or option
plans.


 


6.8                                 Charter Provision.  Genworth shall, and shall cause each of its
Subsidiaries to, take any and all actions necessary to ensure continued
compliance by Genworth and its Subsidiaries with the provisions of its
certificate or articles of incorporation and by-laws.  Genworth shall notify GE in writing promptly after becoming aware
of any act or activity taken or proposed to be taken by Genworth or any of its
Subsidiaries which resulted or would result in non-compliance with any such
charter provisions and so long as GE owns any shares of Class B Common Stock
Genworth shall take or refrain from taking all such actions as GE shall in its
sole discretion determine necessary or desirable to prevent or remedy any such
non-compliance.


 


6.9                                 Litigation and Settlement
Cooperation.  Prior to the
Trigger Date, GE will use its commercially reasonable efforts to include
Genworth and its Subsidiaries in the settlement of any Third Party Claim which
jointly involves a member of the GE Group and a member of the Genworth Group; provided,
however, that Genworth shall be responsible for its share of any such
settlement obligation and any incremental cost (as reasonably determined by GE)
to GE of including Genworth in such settlement; provided, further,
that Genworth shall be permitted in good faith to opt out of any settlement if
Genworth agrees to be responsible for defending its share of such Third Party
Claim.  The parties agree to cooperate
in the defense and settlement of any such Third Party Claim which primarily
relates to matters, actions, events or occurrences taking place prior to the
Trigger Date.  In addition, both
Genworth and GE will use their commercially reasonable efforts to make the
necessary filings to permit each party to defend its own interests in any such
Third Party Claim as of the Trigger Date, or as soon as practicable thereafter.


 


6.10                           Continuation of Certain Arrangements.  GE and Genworth will each use commercially
reasonably efforts to continue or cause to be continued the arrangements
described in Schedule 6.10.


 


6.11                           Future Intercompany Transactions.  All proposed intercompany transactions
between Genworth and GE after the Closing Date, including any material
amendments to the Transaction Documents, and any consent or approval proposed
to be granted by Genworth for GE’s benefit, in each case that would ordinarily
be submitted for approval by the board of directors of Genworth will be subject
to the approval of a majority of the independent directors (as defined under the
applicable rules of any securities exchange on which shares of Genworth Common
Stock are listed) of the board of directors of Genworth.


 


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6.12                           Use of Restricted Marks; Certain
Commercial Arrangements.


 


(a)                                  Except
as otherwise set forth below, during the period commencing on the Closing Date
and ending on the first to occur of (x) the fifth anniversary of the Closing
Date, (y) the termination of the right to use the Licensed Marks with respect
to products and services under the Transitional Trademark Agreement, and (z)
solely with respect to a specific type of product or service in a particular
jurisdiction (including the use of the Licensed Marks in connection with
products and services offered and jurisdictions entered after the Closing Date
in accordance with the Transitional Trademark Agreement), the first date that
Genworth ceases to use the Licensed Marks for a period of at least 180 days
with respect to such type of product or service in such jurisdiction, GE will
not, and will cause its Affiliates not to, use the Restricted Marks in
connection with (i) the underwriting, marketing, endorsing, issuing, or
administering (other than in connection with a reinsurance relationship) on a
primary basis of life insurance, long-term care insurance, annuities (other
than in conjunction with the offering of a GE or GE Affiliate-managed mutual
fund investment offering underlying such annuities), and work site benefits
insurance (for the avoidance of doubt, excluding employer stop loss, workers
compensation, and excess workers compensation insurance underwritten or issued
by any GE Affiliate on a direct basis as of the date hereof, provided
that in connection therewith, the Restricted Marks are used in a substantially similar
manner as used as of the date hereof) in the United States or of auto insurance
products in the Republic of Mexico or (ii) the underwriting or issuing of
mortgage insurance products or similar products providing credit default
protection on residential mortgages anywhere in the world.  In connection with clause (z) above,
Genworth shall notify GE as promptly as practicable in connection with any
cessation of use of the Restricted Marks as set forth above.


 


(b)                                 Notwithstanding
the foregoing, and without implicitly agreeing that any of the following
activities would be prohibited by the restrictions set forth in paragraph (a)
above, GE and its Affiliates shall not be prohibited from (i) using the
Restricted Marks in any way in connection with (A) any business in which GE or
any of its Affiliates (which, for purposes of this clause, shall not include
Genworth and its Subsidiaries) is engaged as of the Closing or (B) the
activities set forth on Schedule 6.12(b)(i)(B); (ii) using the
Restricted Marks in the underwriting, marketing, endorsing, issuing, renewing,
amending, and administering of any and all types of reinsurance and
retrocession whether or not so used by GE or any of its Affiliates as of the
Closing, including without limitation, reinsurance and retrocession of the
types of business that, if underwritten or marketed on a primary basis by GE or
its Affiliates using the Restricted Marks would violate the restrictions set
forth in paragraph (a) above, provided that in connection with such
reinsurance or retrocession, GE and its Affiliates will not use the Restricted
Marks in marketing activities primarily directed to consumers; or (iii) making
references to any Affiliate of GE as an Affiliate of GE or any of GE’s
Affiliates (including, without limitation, for the purposes of evidencing
credit rating or other support); or (iv) making such disclosures as may be
required by applicable Law.


 


(c)                                  GE
and Genworth agree that the underwriting, marketing, or issuing of payment
protection products (as defined in the Framework Agreement) by GE’s Consumer
Finance Division in Europe shall be governed by the Framework 


 


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Agreement.  GE agrees that to the extent GE or any other
controlled Affiliate of GE desires to offer payment protection products in the
jurisdictions covered by the Framework Agreement in conjunction with a consumer
financing arrangement where GE or a GE Affiliate acts as the provider of
finance, GE shall, or shall cause such controlled Affiliate, to enter into an
arrangement substantially similar to, and for the period covered by, the
Framework Agreement.


 


(d)                                 GE
agrees that if it or any of its controlled Affiliates decides to purchase
mortgage insurance or any similar products in respect of any residential first
mortgage loans or any such loans as it may purchase from third parties, it will
so advise Genworth and, if the contemplated transactions would be in a market
where Genworth is authorized to conduct such business, or can become so
authorized within a three month period, seek a proposal for such coverage from
Genworth no later than when it seeks such proposals or offers from any other
sources.  This obligation shall not
apply in a market where GE or such controlled Affiliate has an existing relationship
with a third party provider where it decides to purchase additional cover in
respect of residential first mortgage loans from that provider in that
market.  GE and its controlled
Affiliates will retain the right, in their sole discretion, to accept or reject
Genworth’s proposals or terms.


 


(e)                                  The
parties agree that it is not their intention to violate any law.  The parties intend that the provisions of
this Section 6.12 be enforced to the fullest extent permissible under the
laws applicable in each jurisdiction in which enforcement is sought.  If any provision of this Section 6.12
is found by a court or arbitrator to be unenforceable, the parties authorize
the court or arbitrator to amend or modify the provision to make it enforceable
in the most restrictive fashion permitted by law.  For the avoidance of doubt, any Disputes relating to this
Section 6.12 shall be resolved in accordance with the procedures set forth
in Article VII of this Agreement except, with respect to paragraph (c), as
otherwise provided in the Framework Agreement. 
GE acknowledges that any violation of the restrictions set forth above
could result in irreparable injury to Genworth and that, in the event of a
violation by GE or its Affiliates, Genworth shall be entitled to obtain
injunctive relief in accordance with Article VII.


 


6.13                           Committees.


 


(a)                                  Compensation
Committee.  Prior to the Trigger
Date, the compensation committee of the board of directors of Genworth shall be
comprised of three directors, one of whom shall be designated by GE and two of
whom shall be independent directors as defined under the applicable rules of
any securities exchange on which shares of Genworth Common Stock are
listed.  From and after the Trigger
Date, the compensation committee shall be comprised of three directors each of
whom shall be independent directors as defined under the applicable rules of
any securities exchange on which shares of Genworth Common Stock are listed.


 


(b)                                 Nominating
Committee.  Prior to the Trigger
Date the nominating committee shall be comprised of five directors, one of whom
shall be the chief 


 


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executive officer of
Genworth, one of whom shall be designated by GE and three of whom shall be
independent directors as defined under the applicable rules of any securities
exchange on which shares of Genworth Common Stock are listed.  From and after the Trigger Date, the
nominating committee shall be comprised of three directors each of whom shall
be independent directors as defined under the applicable rules of any
securities exchange on which shares of Genworth Common Stock are listed.


 


6.14                           Bridge Loan. 
Genworth shall enter into the Bridge Loan prior to the consummation of
the Initial Public Offering.


 


6.15                           GE Policies. 
If a provision of Genworth’s Amended and Restated Certificate of
Incorporation or Amended and Restated Bylaws or of any Transaction Document
contradicts a policy of the GE Parties (the “GE Policies”) that applies
to Subsidiaries of GE, such provision in Genworth’s Amended and Restated
Certificate of Incorporation or Amended and Restated Bylaws or Transaction
Document shall control.  In any other
case, and except as otherwise agreed pursuant to the following sentence, the GE
Policies that apply to Subsidiaries of GE shall apply to Genworth and its
Subsidiaries until the Trigger Date.


 


ARTICLE VII


 


DISPUTE RESOLUTION


 


7.1                                 General Provisions.


 


(a)                                  Any
dispute, controversy or claim arising out of or relating to this Agreement or
the Transaction Documents (other than the Transaction Documents set forth on Schedule 7.1),
or the validity, interpretation, breach or termination thereof (a “Dispute”),
shall be resolved in accordance with the procedures set forth in this Article VII,
which shall be the sole and exclusive procedures for the resolution of any such
Dispute unless otherwise specified below.


 


(b)                                 Commencing
with a request contemplated by Section 7.1(f) set forth below, all
communications between the parties or their representatives in connection with
the attempted resolution of any Dispute, including any mediator’s evaluation
referred to in Section 7.3 set forth below, shall be deemed to have
been delivered in furtherance of a Dispute settlement and shall be exempt from
discovery and production, and shall not be admissible in evidence for any
reason (whether as an admission or otherwise), in any arbitral or other
proceeding for the resolution of the Dispute.


 


(c)                                  Except
as provided in Section 7.1(f) in connection with any Dispute, the
parties expressly waive and forego any right to (i) punitive, exemplary,
statutorily-enhanced or similar damages in excess of compensatory damages, and
(ii) trial by jury.


 


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(d)                                 The
specific procedures set forth below, including but not limited to the time
limits referenced therein, may be modified by agreement of the parties in
writing.


 


(e)                                  All
applicable statutes of limitations and defenses based upon the passage of time
shall be tolled while the procedures specified in this Article VII
are pending.  The parties will take such
action, if any, required to effectuate such tolling.


 


(f)                                    Notwithstanding
anything to the contrary contained in this Article VII, any Dispute
relating to GE’s rights as a stockholder of Genworth pursuant to applicable
Law, Genworth’s Amended and Restated Certificate of Incorporation or Genworth’s
Amended and Restated Bylaws, including GE’s rights as the holder of the Class B
Common Stock, will not be governed by or subject to the procedures set forth in
this Article VII.  The
parties hereto hereby irrevocably submit to the exclusive jurisdiction of any
state court located within the State of Delaware over any such Dispute and each
party hereby irrevocably agrees that all claims in respect of any such Dispute
or any suit, action proceeding related thereto may be heard and determined in
such courts.  The parties hereby
irrevocably waive, to the fullest extent permitted by applicable Law, any
objection which they may now or hereafter have to the laying of venue of any
such Dispute brought in such court or any defense of inconvenient forum for the
maintenance of such dispute.  Each of
the parties hereto agrees that a judgment in any such Dispute may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by Law.


 


7.2                                 Consideration by Senior Executives.  If a Dispute is not resolved in the normal
course of business at the operational level, the parties shall attempt in good
faith to resolve such Dispute by negotiation between executives who hold, at a
minimum, the office of President and CEO of the respective business entities
involved in such Dispute.  Either party
may initiate the executive negotiation process by providing a written notice to
the other (the “Initial Notice”). 
Fifteen (15) days after delivery of the Initial Notice, the receiving
party shall submit to the other a written response (the “Response”).  The Initial Notice and the Response shall
include (i) a statement of the Dispute and of each party’s position, and (ii)
the name and title of the executive who will represent that party and of any
other person who will accompany the executive. 
Such executives will meet in person or by telephone within thirty (30)
days of the date of the Initial Notice to seek a resolution of the Dispute.


 


7.3                                 Mediation. 
If a Dispute is not resolved by negotiation as provided in Section 7.2
within forty-five (45) days from the delivery of the Initial Notice, then
either party may submit the Dispute for resolution by mediation pursuant to the
CPR Institute for Dispute Resolution (the “CPR”) Model Mediation
Procedure as then in effect.  The
parties will select a mediator from the CPR Panels of Distinguished
Neutrals.  Either party at commencement
of the mediation may ask the mediator to provide an evaluation of the Dispute
and the parties’ relative positions.


 


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7.4                                 Arbitration.


 


(a)                                  If
a Dispute is not resolved by mediation as provided in Section 7.3
within thirty (30) days of the selection of a mediator (unless the mediator
chooses to withdraw sooner), either party may submit the Dispute to be finally
resolved by arbitration pursuant to the CPR Rules for Non-Administered
Arbitration as then in effect (the “CPR Arbitration Rules”).  The parties consent to a single,
consolidated arbitration for all known Disputes existing at the time of the
arbitration and for which arbitration is permitted.


 


(b)                                 The
neutral organization for purposes of the CPR Arbitration Rules will be the CPR.
The arbitral tribunal shall be composed of three arbitrators, of whom each
party shall appoint one in accordance with the “screened” appointment procedure
provided in Rule 5.4 of the CPR Arbitration Rules.  The arbitration shall be conducted in New York City.  Each party shall be permitted to present its
case, witnesses and evidence, if any, in the presence of the other party.  A written transcript of the proceedings
shall be made and furnished to the parties. 
The arbitrators shall determine the Dispute in accordance with the law
of the State of New York, without giving effect to any conflict of law rules or
other rules that might render such law inapplicable or unavailable, and shall
apply this Agreement according to its terms, provided that the provisions
relating to arbitration shall be governed by the Federal Arbitration Act, 9
U.S.C. §§ 1 et seq.


 


(c)                                  The
parties agree to be bound by any award or order resulting from any arbitration
conducted in accordance with this Section 7.4 and further agree
that judgment on any award or order resulting from an arbitration conducted
under this Section 7.4 may be entered and enforced in any court
having jurisdiction thereof.


 


(d)                                 Except
as expressly permitted by this Agreement, no party will commence or voluntarily
participate in any court action or proceeding concerning a Dispute, except (i)
for enforcement as contemplated by Section 7.4(c) above, (ii) to
restrict or vacate an arbitral decision based on the grounds specified under
applicable law, or (iii) for interim relief as provided in paragraph (e) below.
For purposes of the foregoing, the parties hereto submit to the non-exclusive
jurisdiction of the courts of the State of New York.


 


(e)                                  In
addition to the authority otherwise conferred on the arbitral tribunal, the
tribunal shall have the authority to make such orders for interim relief,
including injunctive relief, as it may deem just and equitable. Notwithstanding
Section 7.4(d) above, each party acknowledges that in the event of
any actual or threatened breach of the provisions of (i) Section 6.2,
Section 6.12 or Section 6.13, (ii) the Employee Matters
Agreement, (iii) the Cross License Agreement, (iv) the Transitional Trademark
License Agreement or (v) the Registration Rights Agreement, the remedy at law
would not be adequate, and therefore injunctive or other interim relief may be
sought immediately to restrain such breach. 
If the tribunal shall not have been appointed, either party may seek
interim relief from a court having jurisdiction if the award to which the
applicant may be entitled may be rendered ineffectual without such interim
relief.  Upon appointment of the
tribunal following any grant of interim relief by a court, the tribunal may
affirm or disaffirm such relief, and the parties will seek 


 


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modification or
rescission of the court action as necessary to accord with the tribunal’s
decision.


 


(f)                                    Each
party will bear its own attorneys’ fees and costs incurred in connection with
the resolution of any Dispute in accordance with this Article VII.


 


ARTICLE VIII


 


MISCELLANEOUS


 


8.1                                 Corporate Power; Fiduciary Duty.


 


(a)                                  Each
of the GE Parties represents on behalf of itself, and Genworth represents on
behalf of itself, as follows:


 


(i)                                     each
such Person has the requisite corporate or other power and authority and has
taken all corporate or other action necessary in order to execute, deliver and
perform each of this Agreement and each other Transaction Document to which it
is a party and to consummate the transactions contemplated hereby and thereby;
and


 


(ii)                                  this
Agreement and each Transaction Document to which it is a party has been duly
executed and delivered by it and constitutes a valid and binding agreement of
it enforceable in accordance with the terms thereof.


 


(b)                                 Notwithstanding
any provision of this Agreement or any Transaction Document, none of the GE
Parties nor Genworth shall be required to take or omit to take any act that
would violate its fiduciary duties to any minority stockholders of Genworth or
any non-wholly owned Subsidiary of GE or Genworth, as the case may be (it being
understood that directors’ qualifying shares or similar interests will be
disregarded for purposes of determining whether a Subsidiary is wholly owned).


 


8.2                                 Governing Law. 
This Agreement and, unless expressly provided therein, each other
Transaction Document, shall be governed by and construed and interpreted in
accordance with the Laws of the State of New York irrespective of the choice of
Laws principles of the State of New York other than Section 5-1401 of the
General Obligations Law of the State of New York.


 


8.3                                 Survival of Covenants.  Except as expressly set forth in any
Transaction Document, the covenants and other agreements contained in this
Agreement and each Transaction Document, and liability for the breach of any
obligations contained herein or therein, shall survive each of the Separation
and the Initial Public Offering and shall remain in full force and effect; provided,
however, that Genworth’s obligations under Sections 4.6 and 4.9 shall
terminate on the first date on which GE ceases to beneficially own, in the
aggregate (excluding for such purposes shares of Genworth Common Stock
beneficially owned by GE but not for its own account, including (in such
exclusion) beneficial ownership which arises by virtue of some entity that is
an Affiliate of GE being a sponsor of or advisor to a mutual or similar fund
that beneficially owns 


 


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shares of Genworth Common
Stock) at least one percent (1%) of the outstanding Genworth Common Stock.


 


8.4                                 Force Majeure. 
No party hereto (or any Person acting on its behalf) shall have any
liability or responsibility for failure to fulfill any obligation (other than a
payment obligation) under this Agreement or, unless otherwise expressly
provided therein, any Transaction Document, so long as and to the extent to
which the fulfillment of such obligation is prevented, frustrated, hindered or
delayed as a consequence of circumstances of Force Majeure.  A party claiming the benefit of this
provision shall, as soon as reasonably practicable after the occurrence of any
such event:  (i) notify the other
parties of the nature and extent of any such Force Majeure condition and (ii)
use due diligence to remove any such causes and resume performance under this
Agreement as soon as feasible.


 


8.5                                 Notices.  All
notices, requests, claims, demands and other communications under this
Agreement and, to the extent applicable and unless otherwise provided therein,
under each of the Transaction Documents shall be in writing and shall be given
or made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by overnight courier service, by facsimile with receipt
confirmed (followed by delivery of an original via overnight courier service)
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this Section 8.5):


 


If to the GE Parties, to:


 


[to be completed]


 


If to Genworth, to:


 


[to be completed]


 


8.6                                 Severability. 
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced under any Law or as a matter of public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect.  Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties to this Agreement shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as originally
contemplated to the greatest extent possible.


 


8.7                                 Entire Agreement.  Except as otherwise expressly provided in this Agreement, this
Agreement (including the Schedules and Exhibits hereto) constitutes the entire
agreement of the parties hereto with respect to the subject matter of this
Agreement and supersedes all prior agreements and undertakings, both written
and oral, between or on behalf of the parties hereto with respect to the
subject matter of this Agreement.


 


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8.8                                 Assignment; No Third-Party
Beneficiaries.  This Agreement
shall not be assigned by any party hereto without the prior written consent of
the other parties hereto.  Except as
provided in Article V with respect to Indemnified Parties, this
Agreement is for the sole benefit of the parties to this Agreement and members
of their respective Group and their permitted successors and assigns and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other Person or entity any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.


 


8.9                                 Public Announcements.  GE and Genworth shall consult with each
other before issuing, and give each other the opportunity to review and comment
upon, any press release or other public statements with respect to the
transactions contemplated by this Agreement and the Transaction Documents, and
shall not issue any such press release or make any such public statement prior
to such consultation, except as may be required by applicable Law, court
process or by obligations pursuant to any listing agreement with any national
securities exchange or national securities quotation system.


 


8.10                           Amendment.  No
provision of this Agreement may be amended or modified except by a written
instrument signed by all the parties to such agreement.  No waiver by any party of any provision
hereof shall be effective unless explicitly set forth in writing and executed
by the party so waiving.  The waiver by
any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any other subsequent breach.


 


8.11                           Rules of Construction.  Interpretation of this Agreement shall be
governed by the following rules of construction:  (a) words in the singular shall be held to include the plural and
vice versa and words of one gender shall be held to include the other gender as
the context requires, (b) references to the terms Article, Section, paragraph,
and Schedule are references to the Articles, Sections, paragraphs, and
Schedules to this Agreement unless otherwise specified, (c) the word
“including” and words of similar import shall mean “including, without
limitation,” (d) provisions shall apply, when appropriate, to successive events
and transactions, (e) the table of contents and headings contained herein are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement and (f) this Agreement shall be construed without
regard to any presumption or rule requiring construction or interpretation
against the party drafting or causing any instrument to be drafted.


 


8.12                           Counterparts. 
This Agreement may be executed in one or more counterparts, and by the
different parties to each such agreement in separate counterparts, each of
which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be as effective as delivery of a manually executed
counterpart of any such Agreement.


 


[The remainder of
this page is intentionally left blank]


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed on the date first
written above by their respective duly authorized officers.


 


	
   

  	
  GENERAL ELECTRIC
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
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  GENERAL ELECTRIC
  CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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  GEI, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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  GE FINANCIAL ASSURANCE
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  GENWORTH FINANCIAL,
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