EXHIBIT 10.74
PROGRAM ADMINISTRATOR AGREEMENT
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This PROGRAM ADMINISTRATOR AGREEMENT is made and entered into as of
January 1, 1998, by and between the Professional Programs Division of Xxx &
Xxxxx, Inc., a Florida corporation ("PA"), and American Healthcare Indemnity
Company, a Delaware corporation ("AHI").
RECITALS
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A. PA, headquartered in Tampa, Florida, is an established program
administrator, licensed as an independent insurance agency on behalf of a number
of insurance companies. PA regularly sells and services a broad line of
professional liability-oriented property and casualty insurance.
B. PA is the originator of the Physicians' Protector Plan(R), a
program designed to provide professional liability and related insurance
coverages to physicians and mid-size medical groups (20 or fewer physicians) who
satisfy certain underwriting guidelines (the "Program"). PA has served as the
exclusive administrator of the Program, which is currently underwritten by the
CNA Insurance Companies ("CNA"). CNA has insured physicians and medical groups
under the Program principally in the states of Connecticut, Florida and Georgia,
and to a lesser extent in ten additional states. PA has marketed the Program
through a network of agents and brokers developed by PA in these states.
C. AHI is a property and casualty insurance company committed to
underwrite, market, sell and otherwise transact a broad line of property and
casualty insurance products to customers in the health care industry. AHI,
which is licensed to transact insurance in 45 states, is a subsidiary of SCPIE
Holdings Inc., a publicly held insurance holding company, headquartered in
Beverly Hills, California.
D. PA and CNA have agreed to terminate their relationship with
respect to the Program as of December 31, 1997, except for certain continuing
transitional underwriting services. PA desires AHI to become the underwriter
for the Program in certain states (the "Covered States"), and AHI is willing to
become the underwriter for the Program in the Covered States, all upon the terms
and conditions hereinafter set forth.
E. The parties desire that AHI assume the underwriting functions as
of the Effective Date. In furtherance of this objective, (i) CNA will continue
to underwrite the Program Policies in a particular state until AHI has received
all necessary rate and form approvals in such state to underwrite the Program
Policies, and (ii) AHI has entered into a reinsurance agreement with CNA,
pursuant to which AHI will assume, under a 100% quota share reinsurance
arrangement, the risk for the Program Policies (as defined herein) issued for
inception or renewal on or after the Effective Date (as defined herein).
AGREEMENT
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NOW, THEREFORE, in consideration of the respective covenants and
promises contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
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1.1 Defined Terms. As used herein, the terms below shall have the
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following meanings. Any of such terms, unless the context otherwise requires,
may be used in the singular or plural, depending upon the references.
"Administrative Guidelines" means those procedures set forth on
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Addendum "A," which have been agreed upon by AHI and PA for servicing the
insurance business under the Program and as they may be amended or supplemented
from time to time in accordance with the terms of this Agreement
"Affiliate" means, with respect to any party, any individual,
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corporation, partnership or other entity that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, such party.
"Agreement" refers to this Program Administrator Agreement,
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including all Addenda and Schedules hereto, as the same may be amended from time
to time.
"AHI" refers to American Healthcare Indemnity Company, Inc.,
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having its principal place of business at 0000 X. Xxxxxxx Xxxxxxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx, a Delaware corporation.
"Covered State" means a state or other jurisdiction in which PA
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and AHI agree that the Program will or may be marketed by PA and underwritten by
AHI on terms and conditions set forth in Sections 2.3 and 2.4 of this Agreement.
The initial Covered States are set forth in Part 1 of Schedule I to this
Agreement, as such schedule may be amended or supplemented from time to time in
accordance with the terms of this Agreement.
"Effective Date" means January 1, 1998 at 12:01 a.m.
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"Eligible Insured" means a physician or medical group of 20 or
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fewer physicians engaged in the private practice of medicine in a Covered State
who meets or meet the requirements of the Underwriting Guidelines for inclusion
as an insured in the Program.
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"Expansion State" means a state or other jurisdiction, if any,
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identified as an Expansion State in Part 2 of Schedule I, as such schedule may
be amended or supplemented from time to time in accordance with the terms of
this Agreement.
"Licensed Producer" means (i) a licensed insurance agent
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appointed as an "agent" of AHI in a Covered State or an Expansion State to act
as subagent of PA with respect to the Program; or (ii) a licensed broker in a
Covered State or an Expansion State who may legally place Program Policies with
AHI through PA.
"Loss Ratio" means, with respect to any accident year, the
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projected indemnity and allocated loss adjustment expense incurred for such
accident year calculated in accordance with the requirements for Schedule P of
the Annual Statement filed with state insurance regulatory authorities.
"Non-Covered State" means any state which is not a Covered State
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or an Expansion State.
"PA" refers to Xxx & Xxxxx, Inc., Professional Programs Division,
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having its principal place of business at 000 X. Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxx, Xxxxxxx.
"Policy Forms" means those insurance application forms, insurance
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policy forms and endorsements listed on Schedule II, which CNA and AHI have
used and will use for the Program, as such forms may be modified, deleted or
supplemented from time to time by AHI.
"Program" means the Program identified in Recital B, which shall
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include the Program Name, the Policy Forms, the Program Materials and the
Program Records.
"Program Claim Records" means those records containing the
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information set forth on Schedule III with respect to claims or potential claims
against insureds in the Program.
"Program Materials" means those advertising, marketing
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advertisements, circulars, brochures, pamphlets and other like materials
developed by PA to market the Program. "Program Materials" shall not include
those materials developed by AHI or its Affiliates for the general marketing of
their products which are adapted for use in the Program.
"Program Name" means Physicians' Protector Plan(R).
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"Program Policies" means those policies issued under the Program.
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"Program Records" means the Program Underwriting Records and the
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Program Claim Records.
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"Program Underwriting Records" means those records containing the
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names of the insureds under the Program, the policy applications, policy
coverages, endorsements and other information developed for the underwriting and
rating of individual physician insureds and medical groups.
"Underwriting Guidelines" means those rules, standards and
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procedures set forth on Addendum "B," including limits of insurance, which have
been established by AHI and are currently utilized for acceptance of risks, the
terms of such acceptance and the issuance of Program Policies in accordance with
such terms.
1.2 Other Defined Terms. The following terms shall have the meanings
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defined for such terms in the Sections set forth below:
Term Section
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AAA Section 10.2(a)
Account Current Section 5.1.1
Board Section 10.2
Disputes Section 10.2
Indemnification Claim Section 8.3
Indemnification Claim Notice Section 8.3
ARTICLE II
APPOINTMENT OF PROGRAM ADMINISTRATOR
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2.1. Appointment of Program Administrator. AHI hereby appoints PA as
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administrator of the Program to offer and sell the Program to Eligible Insureds
in the Covered States and to otherwise administer the solicitation,
underwriting, policy issuance, billing, collection and claim notification with
respect to Eligible Insureds, all in accordance with the terms of this
Agreement. PA hereby accepts such appointment and agrees that it will exercise
such authority as is granted in this Agreement and shall abide by all the terms
and conditions of this Agreement and the Administrative Guidelines and the
Underwriting Guidelines.
2.2 Program Transition.
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2.2.1. Rate and Policy Form Approvals. AHI has filed with the
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appropriate insurance regulatory authority in each of the Covered States an
application or applications to obtain all required approvals of rates for
Eligible Insureds, Policy Forms, Underwriting Guidelines and other matters to
enable AHI to underwrite and issue Program Policies in such state or states, and
AHI shall take all other actions necessary or appropriate to obtain such
approvals. AHI will promptly file a similar application or applications in any
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Expansion State for which an initial marketing plan is approved by AHI pursuant
to Section 2.5.1.
2.2.2 Interim Arrangement. AHI shall be the underwriting
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facility for new and renewing Program Policies in the Covered States on and
after the Effective Date, with the exception of those policies that continue to
be underwritten by CNA, and reinsured by AHI and its Affiliates, in one or more
Covered States, pending AHI obtaining required or appropriate policy form and
rate approvals in such state or states pursuant to Section 2.2.1. For purposes
of this Agreement, policies subject to such reinsurance agreement shall be
considered Program Policies.
2.2.3 Retirement Benefit Credits. Persons insured by CNA
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under the Program, who become insured by AHI under the Program with no gap in
coverage, shall be credited by AHI for all consecutive periods insured by CNA
under the Program for purposes of the calculation of their entitlement to
receive extended reporting period coverage, at no charge, in the event of
retirement from the practice of medicine.
2.3 Operating Authority and Restrictions on PA in the Covered
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States. PA shall have operating authority on behalf of AHI, and shall be
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subject to operating restrictions, as follows in the Covered States.
2.3.1 Authority of Program Administrator. AHI grants to PA
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the following authority exercisable by PA on behalf of AHI. PA shall: (i)
solicit and receive applications for Program Policies directly and from other
Licensed Producers, and bind and issue such policies and endorsements thereto;
(ii) execute and deliver Program Policies and endorsements thereto and
certificates thereof; (iii) xxxx for, collect and receive premiums on Program
Policies, renewals thereof and endorsements thereto in accordance with the
accounting provisions contained herein; (iv) pay to AHI premiums due on Program
Policies; and (v) receive notices of claims or of incidents or other occurrences
which may give rise to claims under any of the Program Policies. The authority
to execute and deliver certificates of insurance may be delegated by PA to
Licensed Producers at PA's discretion.
2.3.2 Licensed Producers. PA shall (i) recommend for
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appointment by AHI (as appointed "agents") Licensed Producers in Covered States
in accordance with the provisions of the Administrative Guidelines to initiate,
receive and accept Program Policies in accordance with such guidelines, and (ii)
designate those brokers in such Covered State who may act as Licensed Producers
and submit Eligible Insureds for coverage under the Program. PA shall cause each
of the Licensed Producers appointed as an insurance agent to enter into an
agreement with PA on a form which has been approved by AHI. A copy of each
executed agreement will be maintained by PA. All such Licensed Producers shall
act under PA's oversight with respect to the Program, and PA will have sole
responsibility for selecting and terminating Licensed Producers in accordance
with the provisions of the Administrative
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Guidelines. PA shall be solely responsible for any commissions or other amounts
due to Licensed Producers or insurance brokers with respect to the Program
Policies transacted by them.
2.3.3 Compliance with Guidelines. In its sales, solicitation,
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binding, selling and issuance of Program Policies, and in its premium charging
or billing thereof, PA shall act in accordance with the Administrative
Guidelines and the Underwriting Guidelines.
2.3.4 Compliance with Licensing Authority. PA shall act in
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accordance with all requirements and limitations imposed by PA's license or by
applicable state or federal law in its representation of AHI under this
Agreement and its selling and administrative activities under this Agreement.
2.3.5 Other Insurance Products. PA will solicit and accept
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only Eligible Insureds in Covered States for inclusion in the Program. PA may,
however, in its capacity as a broker, submit to AHI or its Affiliates other
physicians or medical groups in Covered States, other health care providers and
health care facilities to which AHI or one of its Affiliates offers such
coverage generally in such state or states. AHI will accept such submissions on
a brokerage basis, subject to negotiated terms if accepted for coverage.
2.3.6 Exclusive Program. PA will not offer any other program
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in competition with the Program in a Covered State, nor will it accept
submissions from Eligible Insureds in a Covered State for any program other than
the Program. Nothing herein, however, shall restrict PA from accepting
submissions for coverages other than those included in the Program Policies.
2.3.7 Marketing Plan. PA shall submit to AHI for AHI's
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approval, as soon as practicable but in no event later than June 30, 1998, a
draft initial three-year marketing plan for each of the Covered States, setting
forth for each Covered State projected premium volume, market share and Loss
Ratio targets for the Program in each state for each of the three years covered
by such plan. AHI will promptly review each such plan and consult with PA
regarding any proposed modifications. The parties agree to use their best
efforts to agree upon a final plan for each of the Covered States as soon as
practicable. The marketing plans for the Covered States shall be updated on a
yearly basis pursuant to Section 3.13 and may contain such additional items as
the parties may agree.
2.3.8 Failure to Meet Targets. In the event that the Program
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fails to achieve (x) at least 70% of the stated premium volume target and (y) a
Loss Ratio of less than 110% of the stated Loss Ratio target set forth in the
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then-existing marketing plan for a Covered State in any of the three years
covered by such plan, then each of AHI and PA shall have the right to terminate
such state's status as a Covered State by giving one year's written notice to
the other party of such intention (such one year period, the "Notice Period").
During the Notice Period, PA shall continue to renew business under the Program
in such Covered State and shall accept applications from Eligible Insureds for
coverage under the Program in such state.
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Additionally, AHI shall be obligated to continue to write such business in
accordance with the Underwriting Guidelines during the Notice Period.
During the Notice Period, PA will have the right to accelerate the
termination of a state's status as a Covered State upon 90 days' written notice
to AHI, which notice may be given no earlier than the date which is 90 days
after the Notice Period commenced with respect to such state. In no event will
AHI be allowed to terminate a state's status as a Covered State prior to the end
of the Notice Period unless PA chooses to exercise its right to cause an early
termination of the Notice Period as described in the preceding sentence.
During the Notice Period, AHI will have the right to solicit business that
renews or becomes effective after the expiration of the Notice Period (or
earlier termination thereof at the option of PA). Such solicitation shall be
made in accordance with the provisions of Section 9.7.
2.4 Operating Restrictions on AHI in the Covered States. AHI shall be
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subject to the following operating restrictions in the Covered States.
2.4.1 Agent Appointments. Except as otherwise provided in Section
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2.4.3, AHI will not appoint an agent or agents (other than PA or a Licensed
Producer) in a Covered State to solicit or sell professional liability policies
to Eligible Insureds.
2.4.2 Compliance with Guidelines, AHI will not amend or otherwise
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modify the Underwriting Guidelines in any material respect without first
consulting with PA, and will make only those modifications that it reasonably
determines are necessary for the effective operation of the Program without the
consent of PA. The Administrative Guidelines shall only be amended or otherwise
modified by the agreement of the parties.
2.4.3 Permissible Underwriting and Marketing. AHI will not offer or
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sell professional liability insurance to physicians or medical groups in a
Covered State other than through the Program, except that AHI may underwrite,
market and sell directly to insureds or through agents or brokers:
(a) policies to medical groups of more than 20 physicians who
would otherwise be Eligible Insureds;
(b) policies to individual physicians or medical groups of 20
or fewer physicians who do not qualify as Eligible Insureds under the
Underwriting Guidelines;
(c) policies to national accounts, consisting of medical groups
of all sizes that are part of or affiliated with a practice management
entity, an integrated
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health system or other organization that makes the decision to purchase
professional liability insurance for its owned or affiliated medical
groups;
(d) policies to members of "risk purchasing groups" provided
that (i) the sponsor of the risk purchasing group is not AHI or one of its
Affiliates or is not otherwise affiliated with AHI and (ii) AHI pays to PA
(X) 5% of the premiums paid by Eligible Insureds included in such "risk
purchasing group" in a Covered State where PA provides administrative
services for such group or (Y) 2% of such premiums paid by any such "risk
purchasing group" where PA does not provide administrative services for
such group; or
(e) policies to physicians or medical groups based in or
affiliated with a hospital or other health care facility or system insured
by AHI or one of its Affiliates, when the decision to purchase professional
liability insurance is made by the health care facility or hospital for
such medical group or groups and physicians.
2.4.4 Use Restrictions. Under no circumstances can AHI use the
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Program Name or the Program Materials, except as part of the Program. AHI may
use the Policy Forms or other forms in a Covered State with respect to policies
that may be issued by AHI pursuant to the provisions of Section 2.4.3(a) through
(e).
2.4.5 Improvement in Risk Classification. If an insured to whom AHI
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has issued a policy pursuant to the provisions of Section 2.4.3(b) as a person
who is not an Eligible Insured improves his or her or its risk classification so
that such insured is then qualified to be an Eligible Insured, AHI will use its
best efforts to cause such policy to be renewed as part of the Program.
2.4.6 Purchase of Existing Business. If AHI acquires an insurance
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company that already underwrites physicians' professional liability insurance in
a Covered State, AHI may continue to underwrite those professional liability
insurance policies written by the acquired company on a direct basis, so long as
the premium rates are at least equal to or higher than the rates under the
Program. AHI will only accept such policies written through brokers or agents of
the acquired company for renewal under the Program. Alternatively, if the volume
requirements set forth in Section 9.10 are met, AHI may terminate the Program in
such state as provided in Section 9.10.
2.5 Designation of Expansion States. The following provisions shall apply
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to the expansion of the Program to additional states.
2.5.1 Initial Marketing Plan. In the event that PA shall desire to
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expand the Program to a state that is not a Covered State, PA shall submit to
AHI for AHI's approval a two-year marketing plan applicable to such state,
setting forth for such state projected premium volume, market share and Loss
Ratio targets for the Program in such state for each of the two
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years covered by such plan. If the marketing plan submitted by PA to AHI with
respect to a state meets with AHI's approval, and if AHI is otherwise satisfied
that such state should be designated an Expansion State, such state will be
designated an Expansion State for a period of two years from the date that
necessary AHI filings are approved in such state.
2.5.2 Transfer of Policies. In the event that, in any state that is
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designated an Expansion State, AHI is underwriting policies which would
otherwise be subject to the Program, AHI shall cause such policies to be written
under the Program in such Expansion State as soon as practicable following the
date of such designation.
2.5.3 Accession to Covered State Status. In the event the Program
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meets the stated premium volume and Loss Ratio targets set forth in the initial
marketing plan for an Expansion State for each of the two years covered by such
plan, such state, at the request of PA, will become a Covered State under this
Agreement.
2.5.4 Failure to Meet Targets. In the event the Program fails to
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achieve (x) at least 70% of the stated premium volume target and (y) a Loss
Ratio of less than 110% of the stated Loss Ratio targets set forth in the
initial marketing plan for an Expansion State for either of the two years
covered by such plan, AHI has the right to terminate such state's status as an
Expansion State as of such date and such state shall thereafter be treated as a
Non-Covered State under this Agreement. PA shall be entitled to reinitiate the
process set forth in this Section 2.5 with respect to any such state.
2.5.5 Operating Authority of PA and Restrictions on PA and AHI in
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Expansion States. The provisions of Sections 2.3.1 through 2.3.6 and 2.4.1
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through 2.4.6 shall apply to each Expansion State.
2.6 Activities in Non-Covered States. In any state that is a not a
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Covered State or an Expansion State, (i) AHI will accept brokerage submissions
from PA on the same basis AHI will accept business from other brokers, so long
as AHI has not limited its right to do so contractually, (ii) AHI may underwrite
directly and through agents or brokers or otherwise without restriction
professional liability policies and programs for physicians and medical groups
of all types and sizes, (iii) AHI may appoint other agents, including managing
agents, on an exclusive or non-exclusive basis, to market and sell professional
liability policies and programs for physicians and medical groups of all types
and sizes, and (iv) PA may offer and sell the Program or any other competing
professional liability program utilizing another underwriter or underwriters.
In the event AHI appoints a managing agent in any Non-Covered State on an
exclusive basis, AHI shall use its best efforts to cause PA's business to be
sold under such managing agent arrangement. Neither AHI nor PA will have any
option or right of first refusal from the other party in any such state with
respect to the Program or the offering of other programs of professional
liability insurance. Notwithstanding the foregoing, AHI may not use the Program
Name or Program Materials in any state except as part of the Program. In the
event
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AHI acquires an insurance company that already sells professional liability
insurance in any such state, AHI may operate the acquired company without
restriction.
2.7 Application to Affiliates. The provisions of Sections 2.3 and 2.4
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regarding operating authority and restrictions shall apply to Affiliates of PA
under the direct control of PA and to Affiliates of AHI as though specifically
named in such sections.
ARTICLE III
DUTIES AND RESPONSIBILITIES OF PROGRAM ADMINISTRATOR
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Pursuant to this Agreement, PA will perform the following in accordance
with generally accepted good business and insurance practices:
3.1 Solicitation. PA will exert its best efforts to promote the Program
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and to solicit and sell Program Policies. PA will solicit risks and classes of
risk that in their pricing and insurability meet or exceed the underwriting and
pricing standards established in the Underwriting Guidelines and that otherwise
qualify as Eligible Insureds. In connection with such solicitation, PA shall
formulate and cause to be prepared programs and Program Materials designed to
acquaint and attract Eligible Insureds. PA shall submit to AHI all advertising
brochures and like materials utilized in connection with the Program for review
and written approval by AHI prior to their dissemination.
3.2 Servicing Business. PA shall act as the primary line of communication
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between AHI, the Licensed Producers and the insureds under the Program. PA
shall provide for all usual and customary services to agents, brokers and
insureds including delivery of Program Policies, return of premiums due insureds
and timely and appropriate responses to inquiries and complaints from agents,
brokers or insureds, and shall comply with the service standards set forth in
the Administrative Guidelines.
3.3 Underwriting and Binding of Risks. PA will act in accordance with the
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Underwriting Guidelines and any other reasonable underwriting and pricing
standards from time to time established by AHI. PA shall bind risks only in
accordance with the Underwriting Guidelines.
3.4 Policy Issuance. PA shall timely and properly issue, deliver and
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execute or countersign Program Policies, endorsements, binders and other
documents in accordance with the Policy Forms approved by AHI. PA will promptly
forward to AHI copies of any declarations, endorsements, other policy form
amendments, certificates or other evidences of insurance that contain any
variation not contemplated by the Underwriting Guidelines for the standard
Policy Forms or that include specific variables for which the approval of AHI is
required under the applicable Underwriting Guidelines. PA will provide AHI with
online access
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to policy information entered into its data processing system. Each party will
bear its own costs for such system access.
3.5 Premium Rates. PA shall quote accurate premiums and rates in
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compliance with the approved and applicable rating manuals or rating plans of
AHI for Program Policies at the approved limits of insurance.
3.6 Claim Notification. PA will promptly notify AHI of any information
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received by PA, whether from an insured or a Licensed Producer, or otherwise,
regarding a claim or potential claim against an Insured under a Program Policy.
3.7 Accounting. PA will account for all Program Policies, endorsements
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thereto and renewals thereof in accordance with the method of accounting
designated in Article V of this Agreement.
3.8 Billing, Collection and Deposit of Premiums. PA shall timely xxxx for
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and collect premiums for Program Policies. Upon collection, PA will hold all
such premiums for AHI in a fiduciary account. Such account shall be of a type
and be held at a bank or other institution that is approved in writing by AHI,
which approval shall not be unreasonably withheld. The bank account shall be
established and maintained by PA in such a manner as to clearly establish PA as
holding insurance premiums on behalf of various insurance carriers, including
AHI, with respect to the funds in the account. Interest or other income, if
any, accruing on these premium funds may be retained by PA for its own account.
The net premiums so held will be remitted to (i) AHI in accordance with the
provisions of Section 5.1.2, (ii) PA for commissions in accordance with the
provisions of Section 6.2, and (iii) insureds or their authorized
representatives for return and refund premiums.
On the day that such premiums are required to be paid to AHI by PA in
accordance with Section 5.1.2, PA shall deposit such premiums into a bank
account in the name of AHI under the control of a bank to be designated by PA
and approved by AHI, such approval not to be unreasonably withheld. No other
funds will be deposited by PA into such account and the account shall be
maintained solely for the collection of premiums pursuant to this Agreement.
Interest or other income, if any, accruing on the funds in such account shall
belong to PA and shall be paid to PA by AHI in accordance with the provisions of
Section 6.2. AHI may withdraw premiums from such account on the day that is 75
days after the last day of the month during which the premium was due from the
insured, regardless of the date such premium was actually deposited into the
account. The premiums so held will be disbursed to (i) AHI in accordance with
the provisions of Section 5.1.2, (ii) PA for commissions and interest payable in
accordance with the provisions of Section 6.2, and (iii) insureds or their
authorized representatives for return and refund premiums.
3.9 Administrator Expenses. PA will pay all of its expenses incurred in
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the performance of this Agreement or otherwise incident to the Program,
including, without
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limitation, commissions to Licensed Producers, travel expense, employee and
clerical salaries, benefits and expense, fees, counter-signature fees and
expense, postage, advertising, marketing, printing and license fees. AHI shall
be responsible only for its own costs and expenses unless otherwise agreed in
writing by AHI.
3.10 Licensed Producers.
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(a) PA will accept applications for Program Policies from Licensed
Producers. PA shall comply with AHI's agent or broker of record procedures as
agreed upon by the parties. PA will pay all counter-signature commissions or
fees required to be paid and be solely responsible to pay all commissions due
and payable to Licensed Producers as negotiated between PA and the Licensed
Producers.
(b) PA will verify that each Licensed Producer is properly licensed
and may legally place Program Policies with AHI through PA.
(c) PA will provide AHI access to copies of the standard contract or
agreement PA maintains with Licensed Producers, as necessary for AHI's audit
purposes.
3.11 Records.
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(a) PA will keep and maintain accurate records of all Program
Policies, endorsements and renewals issued by PA on behalf of AHI and all
premiums collected or due and owing thereon. Such records shall be open to
examination by AHI at any time during normal business hours on AHI's request.
(b) PA will establish and maintain reasonably adequate internal
controls and recordkeeping mechanisms for safekeeping and accounting of all
Policy Forms, Program Policies, premium xxxxxxxx, collections and maintenance of
all policyholder records relating to the Program, all as reasonably required for
the fulfillment of its duties as Program Administrator and in addition to any
procedural requirements that may be imposed by AHI.
(c) PA will establish a records retention process under which policy
forms, premium receipt records and records used to determine the status of
insurance in force are maintained for seven years. At the end of such seven-year
period, PA shall request directions from AHI with respect to the disposition of
such records. If PA does not receive any such directions from AHI within 30
days, PA shall ship such records to AHI at AHI's expense. Such records will not
be destroyed without the consent of AHI. PA will provide AHI with access to
these records.
(d) PA will be solely responsible for, and will own, the computer
systems, software and database utilized by PA in connection with the Program.
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(e) AHI will be solely responsible for, and will own, the computer
systems, software and database utilized by AHI in connection with the Program.
(f) AHI and PA shall each take all actions necessary to cause their
systems to be Year 2000 compliant.
3.12 Accounting. PA will account for all Program Policies, endorsements
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thereto and renewals thereof, for all premium xxxxxxxx, collections, cash
receipts and cash disbursements in accordance with the provisions of Article V.
3.13 Annual Marketing Plan. PA shall prepare and submit to AHI annually a
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written marketing plan for each Covered State covering the next three years,
including, but not limited to, projected premium volume, market share and Loss
Ratio targets for the Program in such Covered State (such targets to be used for
the evaluation of such state's status as a Covered State pursuant to Section
2.3.8). This plan is to be submitted to AHI no later than December 1 of the year
immediately preceding the year the marketing plan is effective.
3.14 Report of Sponsoring Organizations. PA may, with the consent of AHI,
----------------------------------
enter into agreements with local medical societies, medical specialty societies
and other organizations for sponsorship of the Program. PA will attend and
participate on a non-voting basis in all peer review activities by any such
sponsoring organizations, including insurability, loss prevention and claim
review committees.
3.15 Legal Compliance. PA shall use its best efforts to keep fully
----------------
informed of and comply fully with all applicable agency laws and regulations in
the Covered States and the Expansion States. PA will obtain and provide AHI,
upon request, copies of all licenses and permits required by PA for the proper
conduct of its duties under this Agreement.
ARTICLE IV
POWERS AND DUTIES OF AHI
------------------------
Pursuant to this Agreement, AHI will perform the following in accordance
with generally accepted good business and insurance practices:
4.1 Communication. AHI may communicate directly with insureds and with
-------------
sponsoring organizations, if any, in furtherance of the Program, but AHI will
rely principally on communication through PA.
4.2 Commissions. AHI will pay commissions to PA in accordance with this
-----------
Agreement.
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4.3 Marketing Support. AHI will provide PA with public relations and
-----------------
advertising/sales promotion support with respect to the Program from AHI's
internal design staff, including assistance in the design of descriptive
materials, brochure design, graphics, advice and consultation concerning Program
marketing. AHI shall not be required to provide any additional marketing
support or assistance.
4.4 Approval of Program Materials. AHI will review and approve or modify
-----------------------------
and approve in writing and within a reasonable time Program Materials proposed
by PA for use with the Program.
4.5 Claim Adjustment.
----------------
(a) AHI will have full responsibility for the investigation, defense
and settlement of claims made against insureds under Program Policies, including
the investigation of all claims, establishment of appropriate claim files, the
assembly of all claim forms and data necessary for proper claims administration,
the supervision of all litigation or other proceedings involving any claim, and
the disposition of all claims.
(b) AHI will provide PA with monthly program claim experience
computations for each Covered State as well as individual claim information and
on-line claims access to the AHI claims system deemed necessary for PA to
perform its underwriting obligations under this Agreement, which shall include,
but not be limited to, the information listed in Schedule III. PA will provide
AHI with online access to policy information entered into its data processing
system. Each party will bear its own costs in connection with such system
access.
(c) AHI will establish a retention process under which claim files
will be maintained indefinitely. After a claim is closed, such records may be
maintained on microfiche or in an electronic storage system.
4.6 Policyholder Inquiries or Requests. AHI will refer to PA for handling
----------------------------------
individual policyholder or medical group inquiries and comments concerning the
Program or any Program Policy, and all requests for action by AHI with respect
to Program Policies, except for (i) inquiries, comments or requests for action
with respect to pending claims or medical incidents or other occurrences which
may give rise to claims, or (ii) other matters that AHI determines are legally
necessary to be communicated directly to such insureds.
4.7 Regulatory Filings. AHI will maintain proper filings with Insurance
------------------
Departments in the Covered States.
4.8 Appointment of Licensed Producers. AHI will, upon the reasonable
---------------------------------
request of PA, appoint licensed agents and/or brokers for the Program in the
states in which such agents or brokers will be soliciting Eligible Insureds for
the Program.
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4.9 Risk Management Services. AHI will maintain and make available its
------------------------
internal risk management staff for services to associations, provider service
organizations, other similar organizations and insureds as agreed upon by PA and
AHI. If a substantial amount of risk management services are required, AHI, in
its discretion, may charge the association or organization for such services, at
its standard rates.
4.10 Cancellation or Non-Renewal of Program Policies. PA shall have the
-----------------------------------------------
right and duty to renew or non-renew a Program Policy and to cancel a Program
Policy for non-payment of premium. AHI shall cooperate with PA with respect to
giving any such non-renewal or cancellation notices required by law to be given
directly by AHI. AHI shall have the right to cancel any Program Policy for any
reason other than non-payment of premium. Nothing contained in this Agreement
shall be deemed to inhibit or interfere with the exercise by AHI of any
obligations it has under applicable law with respect to non-renewal or
cancellation of a Program Policy.
ARTICLE V
ACCOUNTING PROVISIONS
---------------------
5.1 Method of Accounting. All Program business written by PA shall be
--------------------
accounted for on an Account Current basis (as defined below).
5.1.1 Rendering of Account Current. PA shall submit to AHI an
----------------------------
"Account Current" for new Program Policies, renewals and endorsements not later
than the tenth day of the month following the month in which they are effective.
The "Account Current" shall contain the information shown on the attached sample
Account Current (Schedule IV). The weekly data transmission shall contain the
information specified on Schedule V for each such policy. In the event
circumstances outside of PA's control result in the delayed issuance of a
material number of Program renewal policies and thereby result in the inclusion
of such premiums in the Account Current of PA for a month subsequent to the
effective month, PA shall notify AHI of such event and request the consent of
AHI for the payment of such premiums along with the payment of the Account
Current in which such premiums are included. AHI shall not unreasonably withhold
such consent.
5.1.2 Payment of Premium and Compensation. Payment of gross
-----------------------------------
premium (net of all commissions) for all business reported on each month's
Account Current shall be paid to AHI so as to be received by AHI no later than
the 15th day of the second month succeeding (i) with respect to premiums due
upon policy inception or renewal, the month in which the policy inception or
renewal for which payment is being made is effective, or (ii) in the case of
subsequent installments, the month in which the installment is due.
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5.1.3 Responsibility for Collection of Premiums. PA is fully
-----------------------------------------
responsible for and will pay to AHI all premiums due on Program Policies in the
manner provided in this Article V, whether or not such premiums have been
collected by PA from policyholders.
5.1.4 General Obligations. PA and AHI agree to use their best
-------------------
efforts and to cooperate to cause all premiums under the Program to be paid to
AHI so that any unpaid agents' commissions can be carried by AHI in its
quarterly and annual statements as "admitted assets" under statutory accounting
principles.
ARTICLE VI
PAYMENT OF COMPENSATION TO PROGRAM ADMINISTRATOR
------------------------------------------------
6.1 Transition Payments AHI has paid to PA an amount equal to one percent
-------------------
of total Program "in force" premium as of December 31, 1997, to defray initial
marketing, advertising and related expenses required to effect the transition of
the Program to AHI. AHI will make an additional payment to PA equal to one
percent of the total direct written and assumed premium of the Program for the
1998 calendar year. Such payment shall be made by January 31, 1999.
6.2 Commission Payments. PA shall receive commissions at a rate of 15% on
-------------------
premium collected on Program Policies placed with AHI, or reinsured by AHI
pursuant to agreement with CNA during transition of the Program, as compensation
for the services to be rendered by PA pursuant to this Agreement. Commissions
on premium collected on any other non-Program policies issued by AHI for which
PA acted as broker will be paid at rates agreed upon from time to time by AHI
and PA. The rate of commission specified herein may be changed by AHI upon at
least 365 days' prior written notice.
Whenever premium is returned to any policyholder, PA shall refund
return commission applicable to such policyholder at the same rate at which
commission was originally retained. If AHI has made any such payments on PA's
behalf, PA shall refund such commissions to AHI and expressly authorizes AHI to
deduct such commissions from any commissions due PA.
If PA fails to collect premiums, AHI will have the right to collect
such premiums in any manner AHI deems appropriate.
6.3 Contingent Commission Payments. AHI will pay a contingent
------------------------------
commission of up to one percent of Program premiums earned for each calendar
year beginning with the calendar year ending December 31, 1999. Such payment
will be made on or before April 30 of the following year. The amount of such
commission will be based on loss experience of the Program and pursuant to an
annual profit sharing agreement which shall be in writing and agreed by the
parties no later than August 31, 1998. It is understood that such contingent
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commission payments shall be offset by an amount equal to 1% of the unearned
premium of the Program as of December 31, 1998.
ARTICLE VII
INSURANCE
---------
7.1 Insurance Maintained by PA. PA will maintain, for as long as this
--------------------------
Agreement remains in force, with insurers and on forms acceptable to AHI: (i) a
professional errors and omissions policy in an amount of $5,000,000 each
occurrence (with a retention of no more than $1,000,000 each occurrence); (ii) a
comprehensive general liability policy in an amount of $5,000,000 each
occurrence; and (iii) a blanket employee dishonesty bond covering all employees
of PA in an amount of $1,000,000 each occurrence. AHI may require certificates
of insurance or other evidence that the insurance required by this Article VII
is and remains in force.
7.2 Insurance Maintained by Licensed Producers. PA will require that its
------------------------------------------
principal Licensed Producers (including each Licensed Producer appointed by AHI
as an "agent") maintain professional errors and omissions insurance in required
amounts of at least $500,000 each occurrence. PA will obtain and submit proof
of such insurance to AHI, upon the request of AHI.
ARTICLE VIII
INDEMNIFICATION AND HOLD HARMLESS
---------------------------------
8.1 By AHI. AHI will indemnify, defend and hold harmless PA against any
------
and all liability, losses, damages, costs or expenses of whatever nature,
including, without limitation, settlement costs and reasonable attorneys' fees,
mediation, arbitration and court costs and other expenses actually incurred by
any such party, whether in investigating, prosecuting or defending any claim or
action, or any threatened claim or action which PA may incur caused by and
arising out of errors, omissions, negligence, dishonesty, fraudulent or criminal
acts or breach of duty or confidentiality of AHI or its employees or anyone
acting on their behalf or under their direct control. The provisions of this
Section 8.1 shall not apply to the extent PA has caused, contributed to, or
compounded any such error, omission or negligence.
8.2 By PA. PA will indemnify, defend and hold harmless AHI against any
------
and all liability, losses, damages, costs or expenses of whatever nature,
including, without limitation, settlement costs and reasonable attorneys' fees,
mediation, arbitration and court costs and other expenses actually incurred by
any such party, whether in investigating, prosecuting or defending any claim or
action, or any threatened claim or action which AHI may incur caused by and
arising out of errors, omissions, negligence, dishonesty, fraudulent or criminal
acts or breach of duty or confidentiality of PA, its employees or anyone acting
on their behalf or under their
-17-
direct control. The provisions of this Section 8.2 shall not apply to the extent
that AHI has caused, contributed to or compounded any such error, omission or
negligence.
8.3 Claims. If a claim for indemnification (an "Indemnification Claim")
------
is to be made by a party entitled to indemnification hereunder against the
indemnifying party, the party claiming such indemnification shall give written
notice (an "Indemnification Claim Notice") to the indemnifying party as soon as
practicable after the party entitled to indemnification becomes aware of any
fact, condition or event which may give rise to a claim for which
indemnification may be sought under this Section 8.3. If any lawsuit or
enforcement action is filed against any party entitled to the benefit of
indemnity hereunder, written notice thereof shall be given to the indemnifying
party as promptly as practicable (and in any event within 15 calendar days after
the service of the citation or summons). The failure of any indemnified party to
give timely notice hereunder shall not affect rights to indemnification
hereunder, except to the extent that the indemnifying party demonstrates actual
damage caused by such failure. After such Indemnification Claim Notice, if the
indemnifying party shall acknowledge in writing to the indemnified party that
the indemnifying party shall be obligated under the terms of its indemnity
hereunder in connection with such lawsuit or action, then the indemnifying party
shall be entitled, if it so elects at its own cost, risk and expense, (i) to
take control of the defense and investigation of such lawsuit or action, (ii) to
employ and engage attorneys of its own choice to handle and defend the same
unless the named parties to such action or proceeding include both the
indemnifying party and the indemnified party and the indemnified party has been
advised in writing by counsel that there may be one or more legal defenses
available to such indemnified party that are different from or additional to
those available to the indemnifying party, in which event the indemnified party
shall be entitled, at the indemnifying party's cost, risk and expense, to
separate counsel of its own choosing, and (iii) to compromise or settle such
claim, which compromise or settlement shall be made only with the written
consent of the indemnified party, such consent not to be unreasonably withheld.
If the indemnifying party fails to assume the defense of such claim within 15
calendar days after receipt of the Indemnification Claim Notice, the indemnified
party against which such claim has been asserted will (upon delivering notice to
such effect to the indemnifying party) have the right to undertake, at the
indemnifying party's cost and expense, the defense, compromise or settlement of
such claim on behalf of and for the account and risk of the indemnifying party.
In the event the indemnified party assumes the defense of the claim, the
indemnified party will keep the indemnifying party reasonably informed of the
progress of any such defense, compromise or settlement. The indemnifying party
shall be liable for any settlement of any action effected pursuant to and in
accordance with this Section 8.3 and for any final judgment (subject to any
right of appeal), and the indemnifying party agrees to indemnify and hold
harmless an indemnified party from and against any claim by reason of such
settlement or judgment.
8.4 Enforcement. The indemnity provisions set forth in Sections 8.1 and
-----------
8.2 are made for the benefit of the respective parties identified therein,
whether or not a party hereto, and may be specifically enforced by any such
party as if it were a party hereto. These provisions do not pertain only to
third party suits but also include the reasonable attorneys' fees, court costs
-18-
and other expenses incurred by a party in prosecuting any claim or suit to
enforce any of its rights hereunder.
No party otherwise entitled to be indemnified under this Article VIII
shall be entitled to be indemnified with respect to any payments made in
settlement of a claim made against it unless the party required to give
indemnity hereunder shall first approve in writing the terms of any such
settlement.
8.5 Survival. No termination of this Agreement shall relieve either
--------
party of its obligations of indemnity under this Article VIII.
ARTICLE IX
TERM AND TERMINATION
--------------------
9.1 Term. This Agreement shall become effective on the Effective Date,
----
and shall remain in effect indefinitely until terminated as herein provided.
9.2 Termination. AHI or PA may terminate this Agreement for any reason by
-----------
giving the other party 365 days' prior written notice of such party's intent to
terminate. This Agreement may be mutually terminated at any time.
9.3 Insolvency or Breach. This Agreement may be terminated immediately
---------------------
upon written notice from either AHI or PA to the other in the event of the
other's fraud, insolvency, assignment for the benefit of creditors, willful
misconduct, or breach of this Agreement, or in the event the other shall fail to
pay any sums due under this Agreement within ten days following written notice
of the nonpayment of such funds when due.
Notwithstanding anything in this Section 9.3 to the contrary, with
respect to a breach of any of the terms of this Agreement by either AHI or PA,
the party in breach shall, upon written notice to it, be granted a reasonable
time, not exceeding 30 days, to cure the breach.
9.4 Loss of Authority to Transact Business. This Agreement shall, without
--------------------------------------
regard to the giving of notice, simultaneously and immediately terminate upon:
(i) the loss of PA's authority to do business as an insurance agency in Florida;
or (ii) the loss by AHI of its certificate of authority to transact insurance in
its state of domicile, which is currently Delaware.
9.5 Acquisition or Merger of PA. If PA is acquired by a third party, by
---------------------------
way of sale, merger or otherwise, or if a third party acquires control of a
majority of the outstanding shares of capital stock of PA, AHI shall have the
right, within 90 days after such sale, merger or change of control, to terminate
this Agreement on 30-days' written notice.
-19-
9.6 Payment of Premiums Upon Termination. In the event of termination of
------------------------------------
this Agreement, any and all premiums due and payable by PA shall be paid to AHI
in accordance with the terms of Section 9.9(c).
9.7 Ownership of Records Upon Termination. In the event of termination of
-------------------------------------
this Agreement, or, with respect to any Covered State or an Expansion State,
such state's status as a Covered State or an Expansion State, and provided that
PA has, in accordance with the terms of this Agreement, accounted for and paid
to AHI all premiums and other monies due and owing to AHI under this Agreement
or with respect to such Covered State or Expansion State, exclusive ownership of
the records, including documents and electronically maintained and transmitted
information, and exclusive ownership of the right to use and control of
expirations of business produced under this Agreement, or with respect to such
Covered State or Expansion State, shall vest in PA. If there has not been such
accounting, payment or return upon written demand, the exclusive ownership of
the records and the exclusive ownership of the right to use and control of such
expirations of business covered or produced under this Agreement, or with
respect to such Covered State or Expansion State, shall vest in AHI. Nothing
contained in this Agreement shall restrict or prevent AHI from continuing to be
an insurance market for physicians' professional liability insurance or from
competing with PA for the insurance of Eligible Insureds insured under the
Program. AHI will not use any proprietary information of PA in soliciting such
prospective insureds in a Covered State or an Expansion State. AHI may (i)
enter into agreements with agents who responded to general mailings based on
publicly available information in the insurance industry or advertisements of
AHI, (ii) solicit and insure physicians or medical groups whose names were
obtained from generally available information in the medical community or
otherwise publicly available, and (iii) accept insurance from any broker who has
submitted a request for quotation or any prospective insured who contacts AHI
without solicitation. Each of AHI and PA agrees that during the term of this
Agreement and for a period of three years after termination of this Agreement,
it will not, directly or indirectly, offer employment to or seek to hire or
offer employment to any individual known by AHI or PA, respectively, to be an
employee of the other, unless AHI or PA first terminates the employment of such
employee.
Notwithstanding the foregoing, or any contrary provision of this
Agreement, if AHI terminates the Agreement pursuant to the provisions of Section
9.2 at any time on or prior to January 1, 2008, then AHI agrees that for a
period of one year after the date of such termination, it will not solicit,
divert, sell or accept any physicians' professional liability or related
business from any insured physician or medical group that was insured under the
Program in the Covered States listed on Schedule I on December 31, 1997, and
continuously insured under the Program thereafter.
9.8 Commissions Upon Termination. Upon termination of this Agreement,
----------------------------
AHI's obligation to pay commissions shall cease as of the date of such
termination, except that PA shall continue to receive any earned but unpaid
commission on Program Policies in force on the date of termination until
termination of the insurance policy or policies.
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9.9 Additional Procedures and Rights Upon Termination. In addition to the
-------------------------------------------------
provisions of Section 9.6 above, upon termination of this Agreement:
(a) The authority of PA to act on behalf of AHI with respect to the
Program and Program Policies shall cease forthwith;
(b) PA shall promptly return to AHI all policy and endorsement forms
and other materials supplied to it by AHI and then in its possession with
respect to the Program;
(c) The method of accounting for all Account Current Program Policies
will immediately be changed to a basis of AHI billing PA, with future premium
payments becoming due on the 25th day of the month following the month in which
the premium payment is due under the terms of the Program Policy in question.
9.10 Right to Terminate a Covered State. In the event that AHI or an
----------------------------------
Affiliate acquires an insurance company that already underwrites physicians'
professional liability insurance in a Covered State or an Expansion State, and
the acquired company has a larger premium volume than the Program in such state,
AHI may terminate the Program in such state by the payment to PA of (i) the
present fair value of the present Program in such state, plus (ii) an additional
payment equal to ten percent of such present value. Alternatively, the
provisions of Section 2.4.6 shall apply. The "present fair value" shall mean
the price at which the property would change hands between a willing buyer and a
willing seller when the former is not under any compulsion to buy and the latter
is not under any compulsion to sell, both parties having reasonable knowledge of
relevant facts. The present fair value shall be determined by agreement of the
parties or by an appraiser selected by the parties. If PA and AHI cannot agree
on an appraiser to make such determination, then each shall have the right to
appoint its own appraiser, and the two appraisers so appointed shall select a
third appraiser within 30 days after appointment. The three appraisers shall
then determine the present fair value of the Program in such state and the
determination shall be made by majority vote of the appraisers. In making such
determination of the present fair value of the Program in such state, the
appraisers shall (i) take into account all indirect and direct expenses of PA in
that state with respect to the Program so that the "fully burdened"
profitability of the Program in such state is considered, (ii) determine the
present fair value without consideration of any marketability discount or
control premium that may be applicable by reason of the fact that only a
portion, and not the entirety, of PA's business is being sold and (iii) consider
the terms and conditions of the sale that impact value, including the inclusion
or exclusion of covenants not to compete and rights to trading names. AHI shall
pay the price so determined within 30 days after determination. In the event
AHI or an Affiliate acquires an insurance company that is a direct writer of
physicians' professional liability insurance and the provisions of this Section
9.10 would otherwise apply, AHI will offer subproducers on such Program Policies
in such state the option of selling some or all of the Program Accounts in such
state to AHI for the present fair value of the commission
-21-
revenue received by such subproducers for such accounts, with the present fair
value for such accounts to be determined by AHI.
ARTICLE X
MISCELLANEOUS
-------------
10.1 Independent Contractor. PA is acting under this Agreement as an
----------------------
independent contractor with full power and authority to determine the means,
manner and method of performance of its duties, subject to the Administrative
Guidelines and the Underwriting Guidelines and other limitations and obligations
imposed upon PA by this Agreement, and with full responsibility and liability
for its acts, errors and omissions in its performance of this Agreement. PA
agrees it is not an employee of AHI and is not entitled to any benefits
available to AHI employees.
10.2 Dispute Resolution; Arbitration. Any and all disputes between AHI and
-------------------------------
PA arising out of, relating to, or concerning this Agreement, whether sounding
in contract or tort and whether arising during the term or after termination of
this Agreement (hereinafter "Disputes"), shall be resolved in accordance with a
two-step dispute resolution process involving, first, mediation before a
mediator mutually acceptable to the parties, followed, if necessary, by final
and binding arbitration before a board of arbitration composed of two
arbitrators and an umpire ("Board"), which may or may not include the mediator,
or if requested by either party, another Board. The parties confirm that by
agreeing to this dispute resolution process, they intend to and do waive their
right to have any dispute decided in court by a judge or jury. All proceedings
pursuant to this Section 10.2 shall take place in Dallas, Texas.
(a) Mediation. In the event any Dispute is not resolved by an
---------
informal negotiation between the parties within 30 days after either party
receives written notice from the other party that a Dispute exists, the matter
shall be referred to the Dallas, Texas, offices of the American Arbitration
Association ("AAA") for an informal, non-binding mediation consisting of one or
more conferences between the parties in which a mediator will seek to guide the
parties to a resolution of the Disputes. The parties shall select a mutually
acceptable neutral mediator meeting the qualifications set forth in clause
(b)(ii) below. In the event the parties cannot agree on a mediator, the
Administrator of AAA will appoint a mediator meeting such qualifications. The
mediation process shall begin on a date mutually agreed upon by the parties and
mediator or, in the event the parties cannot agree on a date, the mediator shall
select a date. The mediation process shall continue until the earliest to occur
of the following: (i) the Disputes are resolved, (ii) the mediator makes a
finding that there is no possibility of resolution through mediation, or (iii)
30 days have elapsed since the Dispute was first scheduled for mediation.
(b) Arbitration. Should any Disputes remain after the completion of
-----------
the mediation process described above, the parties agree to submit all remaining
Disputes to final and binding arbitration administered by AAA in accordance with
the then-existing AAA
-22-
Commercial Arbitration Rules. Neither party nor the Board shall disclose the
existence, content or results of any arbitration hereunder without the prior
written consent of all parties. The arbitration shall be conducted under the
Federal Arbitration Act and shall proceed as follows:
(i) Submission to Arbitration. Within 30 days of the
-------------------------
termination of mediation proceedings pursuant to this Section 10.2, each party
shall notify the other of the name of its appointed arbitrator. Either party may
appoint the mediator as its appointed arbitrator.
(ii) Arbitration Board Membership. Unless otherwise mutually
----------------------------
agreed, the members of the Board shall be impartial and disinterested and shall
be active or retired lawyers, familiar with insurance, or active or retired
officers of property-casualty insurance companies or agencies. AHI and PA as
aforesaid shall each appoint an arbitrator and the two (2) arbitrators shall
choose an umpire before instituting the hearing. As time is of the essence, if
either party fails to appoint its arbitrator within the 30-day period described
above, the other party is authorized to and shall appoint the second arbitrator.
If the two arbitrators fail to agree upon the appointment of an umpire within 30
days after notification of the appointment of the second arbitrator, within ten
days thereof, the two (2) arbitrators shall request the AAA to appoint an umpire
for the arbitration with the qualifications set forth above in this Section
10.2. If the AAA fails to name an umpire, either party may apply to the court
named below to appoint an umpire with the above required qualifications, and the
umpire shall promptly notify in writing all parties to the arbitration of his
selection and of the scheduled date for the hearing. Upon resignation or death
of any member of the Board, a replacement shall be appointed in the same fashion
as the resigning or deceased member was appointed.
(iii) Submission of Briefs. The claimant and respondent shall
--------------------
each submit initial briefs to the Board outlining the issues in dispute and the
basis, authority, and reasons for their respective positions within 30 days of
the date of notice of appointment of the umpire. The claimant and the respondent
may submit reply briefs to the Board within ten days after filing of the initial
brief(s). Initial and reply briefs may be amended by the submitting party at any
time, but not later than ten days prior to the date of commencement of the
arbitration hearing. Reasonable responses shall be allowed at the arbitration
hearing to new material contained in any amendments filed to the briefs but not
previously responded to.
(iv) Arbitration Award. The Board shall take such steps as may
-----------------
be necessary to hold a private hearing within 120 days of the submission of the
Disputes to arbitration and to conclude such hearing within three days. The
Board shall make a decision and award with regard to the terms of this
Agreement, the original intentions of the parties to the extent reasonably
ascertainable, and the custom and usage of the property and casualty insurance
business which decision and award shall be in writing and shall state the
factual and legal basis for the decision and award. The decision and award shall
be based upon a hearing in which evidence shall be allowed and in which the
formal rules of evidence shall not strictly apply but in which cross examination
and rebuttal shall be allowed. At its own election or at
-23-
the request of the Board, either party may submit a post-hearing brief for
consideration of the Board within 20 days of the close of the hearing. The Board
shall make its decision and award within 30 days following the close of the
hearing or the submission of post-hearing briefs, whichever is later, unless the
parties consent to an extension. Every decision by the Board shall be by a
majority of the members of the Board and each decision and award by the majority
of the members of the Board shall be final and binding upon all parties to the
proceeding. Either party may apply to a court of competent jurisdiction for an
order confirming any decision and the award; a judgment of that court shall
thereupon be entered on any decision or award. If such an order is issued, the
attorneys' fees of the party so applying and court costs will be paid by the
party against whom confirmation is sought. The Board may award interest at a
rate of 100 basis points above the prime rate as published in the Wall Street
Journal on the date of the award of the Board calculated from the date the Board
determines that any amounts due the prevailing party should have been paid to
the prevailing party but may not award punitive, exemplary, or treble damages.
(v) Arbitration Expense. Each party shall bear the expense of
-------------------
the one arbitrator appointed by it and shall jointly and equally bear with the
other party the expense of any stenographer requested, of the mediator and of
the umpire. The remaining costs of the arbitration proceedings shall be finally
allocated by the Board.
(vi) Evidence. Subject to customary and recognized legal rules
---------
of privilege, each party participating in the arbitration shall have the
obligation to produce those documents, and as witnesses to the arbitration those
of its employees, those of its affiliates, and those of any intermediary or
underwriting manager as any other participating party reasonably requests,
providing always that the same witnesses and documents be obtainable and
relevant to the issues before the arbitration and not be unduly burdensome or
excessive. The parties may mutually agree as to pre-hearing discovery prior to
the arbitration hearing and in the absence of agreement, upon the request of any
party, prehearing discovery may be conducted as the umpire shall determine in
his/her sole discretion to be in the interest of fairness, full disclosure, and
a prompt hearing, decision and award by the Board. The umpire shall be the
final judge of the procedures of the Board, the conduct of the arbitration, the
rules of evidence, the rules of privilege and production and the excessiveness
and relevancy of any witnesses and documents upon the petition of any
participating party. To the extent permitted by law, the Board and the umpire
shall have the authority to issue subpoenas and other orders to enforce their
decisions.
(vii) Equitable Relief. Nothing herein shall be construed to
-----------------
prevent any participating party from applying to a federal district court of
competent jurisdiction to issue a restraining order or other equitable relief to
maintain the "status quo" of the parties participating in the arbitration
pending the decision and award by the Board or to prevent any party from
incurring irreparable harm or damage at any time prior to the decision and award
of the Board. The Board shall also have the authority to issue interim
decisions or awards in the interest of fairness, full disclosure, and a prompt
and orderly hearing and decision and award by the Board.
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(c) Survival. The dispute resolution process set forth in this
--------
Section 10.2 shall survive the termination of this Agreement.
(d) Confidentiality. Any and all matters related to the arbitration,
---------------
including all discovery and all evidence presented at the arbitration hearing,
shall be treated as strictly confidential by the parties and the Board. The
award or decision of the Board shall not be disclosed to any other party, except
as may be required by law or as may be needed to confirm or enforce this award,
or upon the written consent of all parties.
10.3 Waiver of Punitive Damages. Each of the parties hereto expressly and
--------------------------
unequivocally agrees to waive its right to recover punitive or exemplary damages
in connection with any claim arising out of, in connection with, or in relation
to this Agreement.
10.4 Offset. All amounts due PA or AHI under this Agreement shall be
------
subject to the right of offset.
10.5 Amendment. This Agreement may be amended by the parties only by
---------
written agreement executed by both parties.
10.6 Conflict with Applicable Law. Any portion of this Agreement in
----------------------------
contravention of any applicable statute, insurance department regulation or
directive, or any governmental ruling shall, without further action by the
parties, be modified or deleted to the extent necessary to conform to such
statute, regulation, directive or ruling.
10.7 Notices. All notices from one party to the other shall be in writing,
-------
and except as otherwise expressly herein provided, shall be effective upon
mailing to the other by United States mail, postage pre-paid, certified or
registered mail with return receipt requested, addressed to the other as
follows:
If to PA, addressed to:
President
Professional Programs Division
Xxx & Xxxxx, Inc.
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
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with a copy to:
General Counsel
Xxx & Xxxxx, Inc.
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
and if to AHI addressed to:
American Healthcare Indemnity Company
0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxx
President and Chief Executive Officer
By notice given as above provided, either party may change the address or
the addressee to whom any such notice is to be sent.
10.8 Governing Law. This Agreement is to be performed in accordance
-------------
with the laws of the State of Florida. The parties agree that any questions
concerning the interpretation, construction, performance or enforcement of this
Agreement or remedies in the event of its breach are to be governed by the laws
of that State.
10.9 Entire Agreement. This Agreement represents the entire
----------------
agreement between the parties concerning its subject matter. All prior
discussions and agreements between the parties concerning the Program, the
Program Policies, procedures and practices of the parties in the conduct of
their business and anticipated manner of performance of the Agreement and
agreements and understandings between the parties concerning the same are merged
into this Agreement. Neither party is relying on any statements,
representations or warranties from the other party concerning any aspect of
their dealings under this Agreement which are not expressly set forth herein.
10.10 Assignment. Neither this Agreement nor any of the rights or
----------
obligations hereunder may be assigned by any party without the prior written
consent of the other party. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other person shall have any right,
benefit or obligation under this Agreement as a third party beneficiary or
otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK -
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, PA and AHI have caused this Agreement to be executed by
their fully authorized respective officers as of this 1st day of January, 1998.
XXX & XXXXX, INC., PROFESSIONAL
PROGRAMS DIVISION
ATTEST: /s/ Xxxxxx X. Xxxxx BY: /s/ Xxxxx X. Xxxxxx, III
-------------------------- -----------------------------------
Xxxxx X. Xxxxxx, III
TITLE: Executive Vice President President
----------------------------
AMERICAN HEALTHCARE INDEMNITY
COMPANY
ATTEST: /s/ Xxxxxx X. Xxxxxx BY: /s/ Xxxxxx X. Xxx
-------------------------- ----------------------------------
TITLE: Senior Vice President TITLE: President and Chief Executive
and Secretary Officer
---------------------------- --------------------------------
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