EXHIBIT 10.5
PROGRAM MANAGEMENT AGREEMENT
THIS AGREEMENT, made effective as of the 1st day of January, 1997 by and
between Environmental Management Insurance Services, Inc., a Georgia corporation
(hereinafter referred to as the "Program Manager"), having its principal office
in Atlanta, Georgia, and American Safety Risk Retention Group, Inc., a Vermont
corporation (hereinafter referred to as the "Company"), having its principal
office in Burlington, Vermont.
W I T N E S S E T H:
WHEREAS, the Program Manager is currently providing insurance program
management and administrative services to the Company, as well as insurance and
other companies; and
WHEREAS, the term of the current agreement between the Company and Program
Manager expired December 31, 1996; and
WHEREAS, the Company desires to continue to retain the Program Manager to
provide insurance program management and administrative services in accordance
with the terms hereof;
NOW THEREFORE, in consideration of their respective promises and covenants
hereinafter contained, the Program Manager and the Company renew and restate
their agreement and agree as follows:
A. Program Management Authority Granted
The Program Manager is authorized to solicit and accept applications for
insurance (as well as Company stock subscriptions) and to bind, execute and
administer direct contracts of
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insurance on behalf of the Company, subject to the program administration
rules and procedures of the Company as they exist and may in the future be
prescribed and communicated in writing from time to time by the Company to
the Program Manager. The Program Manager shall not be held responsible or
liable for any losses or errors or omissions arising out of insurance
binders, contracts or certificates issued or bound in accordance with such
rules and procedures of the Company.
If the Company fails to deliver to the Program Manager written program
administration rules and procedures sufficient for the Program Manager to
carry out its duties under this Agreement, the Program Manager may take its
own prudent actions, consistent with the Company's prior instructions to the
Program Manager, in administering the affairs of the Company, and the
Program Manager shall not be held liable for any losses, errors or omissions
arising out of such prudent actions.
B. Duties of the Program Manager
The Program Manager shall provide the following services:
1. Marketing Services, including:
(a) solicitation of applications of insurance (including transmittal of
stock subscriptions), in accordance with the rules and procedures of
the Company and in compliance with the federal Liability Risk
Retention Act of 1986 and any applicable state insurance laws and
regulations; and
(b) development and implementation, in cooperation with the Company, of
appropriate sales promotional materials and activities, including
brochures and advertising;
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(c) participation in trade association conventions and presentation of
speeches to appropriate audiences;
(d) providing marketing and advertising materials to insureds, brokers
and the media;
(e) promoting the Company's products and services by telephone and
personal visits with insureds and brokers and by exhibiting and/or
attending trade and/or industry shows; and
(f) developing and conducting marketing and promotional meetings of
insureds and brokers.
2. Program Administration Services, including:
(a) acceptance and processing of applications for insurance (as well as
stock subscriptions);
(b) issuance in the name of the Company, and countersigning where
required, of insurance binders, contracts and certificates;
(c) issuance in the name of the Company of notices of cancellation of
insurance binders, contracts and certificates;
(d) liaison with Company's Vermont Manager, the Vermont Department of
Banking, Insurance and Securities, and other state insurance
departments including necessary filings and regulatory compliance;
and
(e) maintenance of Company's records and computer software, and revision
of same as needed.
all in accordance with the written program administration rules and
procedures of the Company and the terms of this Agreement.
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All premiums received by the Program Manager on behalf of the Company,
net of fees, commissions or other deductions authorized hereunder, shall
be remitted to the Company along with a written statement summarizing
such premiums and deductions within thirty days of the end of each
month.
In addition, the Program Manager shall provide to the Company monthly
reports summarizing its activities on behalf of the Company under this
Agreement.
3. Underwriting Related Services, including:
(a) reviewing on behalf of the Company the risk profiles of all entities
applying for insurance coverage and ownership;
(b) advising the Company regarding acceptability of risks and
appropriate terms and conditions under which coverage shall be
offered;
(c) reviewing on behalf of the Company all insureds on an annual basis
and providing on behalf of the Company appropriate renewal terms and
conditions for each insured;
(d) advising the Company regarding its policy forms, terms, conditions
of coverage and premium rates and assisting in the implementation of
same; and
(e) advise the Company on new programs and coverages.
4. Claims Administration Services, including:
(a) receiving first reports of all claims and transmitting such reports
to the persons and organizations designated by the Company to manage
and adjust claims on behalf of the Company; and
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(b) reviewing all claims with such designated persons and organizations
on a periodic basis and assisting in the preparation of an annual
report to the Company summarizing recommended provisions for loss
reserves in the Company's financial statements.
5. Loss Control Services, including:
(a) technical review of submissions of insureds for insurance coverage;
(b) implement inspection program of prospective and existing insureds'
offices, operations and projects, in accordance with instructions
provided by the Company;
(c) preparation of quarterly reports on loss control activities;
(d) attending meetings of the Loss Control Committee, at the Company's
request; and
(e) advising the Company on loss control issues, and assist in
developing loss control technical guidelines/standards for review by
the Company.
6. Financial Services, including:
(a) billing and collection (exclusive of legal action) of all premiums
due to the Company on insurance binders, contracts and certificates,
and of other accounts receivable;
(b) payment of Producing Agent Commissions to licensed insurance agents
and brokers;
(c) payment of reinsurance premiums, and obtaining letters of credit
from reinsurers where required by contract or regulatory
authorities;
(d) prepare the Company's general ledger, income statement, balance
sheet and summary of investments;
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(e) maintain accounting data needed to prepare federal income tax
return, state premium tax returns and other business related returns
(excluding preparation of income tax returns), and liaison with the
Company's outside auditors and actuaries;
(f) review of invoices received by the Company, and payment of accounts
payable of the Company, whether for goods or services;
(g) transfer funds to the Company's investment manager in accordance
with guidelines established by the Company and/or liaison with the
Company's outside investment managers;
(h) performing premium audits of the Company's insureds in accordance
with standards developed or approved by the Company; and
(i) prepare operating budgets and reconcile bank accounts.
7. Consulting Services, including:
(a) advising on a periodic basis regarding insurance industry customs
and practices and conveying results or summaries of insurance
surveys, research and computations, as may be requested by the
Company;
(b) periodically evaluating and reporting on the potential adoption by
the Company of additional lines of insurance;
(c) periodically evaluating and reporting on the possible uses of other
reinsurance arrangements by the Company; and
(d) assisting in the preparation for and attending the meetings of the
Company's shareholders, directors, officers and committees.
8. The Program Manager will not provide any claims adjusting, actuarial,
legal, financial audit, or reinsurance intermediary services, or
investment advice under this
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Agreement, and the Company shall have sole responsibility for obtaining
these services and advice at its own expense as it deems advisable.
However, the Program Manager shall timely advise the Company of the need
for the foregoing services, and the Program Manager may provide such
services pursuant to Section D.2. hereof, and/or shall monitor the
status and results of such services provided by others.
9. The Program Manager shall have no power to enter into any contract,
including any insurance contract, on behalf of the Company unless
specifically authorized by the Company to do so.
10. The Program Manager represents and warrants that during the term of
the Agreement, Xxxxx X. Xxx, its President, shall be primarily
responsible for the administration and oversight of the performance of
the Program Manager under this Agreement. In the event of any
substantive change, voluntarily or involuntarily, in Xx. Xxx'x role in
connection with the Program Manager's services under this Agreement, the
Company may terminate this Agreement pursuant to the provisions of
Section E.1. hereof.
11. The Program Manager shall not be required to obtain errors and
omissions insurance covering the Program Manager's employees who perform
services for the Company while acting on behalf of the Company,
including, but not limited to, as signatories on any insurance contract
or certificate. If available, the Company shall have the right to
require that such coverages be purchased, at the Company's expense.
Program Manager shall obtain fidelity insurance or similar coverage with
respect to its financial services for the Company in connection with the
collection of premium and handling of the Company's funds.
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C. Duties of the Company
The Company shall:
1. pay to the Program Manager the compensation set forth in Section D of
this Agreement;
2. comply with any reasonable request for instructions which the Program
Manager may make in order for the Program Manager to perform its duties
efficiently under this Agreement;
3. deliver to the Program Manager the written rules and procedures
specified in Sections A., B.1.(a), B.2. and B.7. of this Agreement,
subject to the provisions of Section A above;
4. provide or arrange to provide the services specified in this Agreement
as being provided by entities other than Program Manager.
D. Compensation
1. The Company agrees to pay compensation and reimbursement to the Program
Manager as follows:
(a) an Administrative Fee for services to be provided, including
expenses (except as otherwise specified), equal to $45,000 per
month, payable in monthly installments by not later than the tenth
(10th) of each month. The Administrative Fee may be calculated and
deducted by the Program Manager
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on a monthly basis from the premiums received by the Program Manager
on behalf of the Company. At each anniversary of this Agreement,
Program Manager agrees to discuss with Company's Executive Committee
of the Board of Directors whether an adjustment or another basis for
compensation as described in this Section D is appropriate based on
Program Manager's operating budget. Notwithstanding the provisions
of Section E hereof, if Program Manager and Company cannot reach
agreement at such time, this Agreement shall continue in effect, and
at Program Manager's or Company's option, the issue may be referred
to arbitration, in accordance with Section I of this Agreement.
(b) during the term of this Agreement, a Producing Agent Commission
equal to ten percent (10%) of all gross written premiums (net of
cancellations and return premiums) received by the Company on any
insurance binders, contracts and certificates, issued by the Company
on which the insured, under such binders, contracts and
certificates, has designated in writing the Program Manager, or any
other related company, subsidiary or affiliate of Program Manager as
its insurance agent or broker of record, or has notified the Company
that no broker exists on such account, or elects to have its
coverage written directly by the Company, and for the small (and/or
"special") contractors program and any environmental automobile
program. The Producing Agent Commission shall be calculated and
payable on a monthly basis on the tenth (10th) day of the following
month and may be deducted by Program Manager from premiums received
on behalf of the Company;
(c) a Management Fee equal to (i) ten percent (10%) of all gross written
premium (as determined in the same manner described in Paragraph (b)
above)
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received by the Company for the Company's Standard Contractor/Owner
Program and (ii) fifteen percent (15%) of all gross written premiums
received by the Company (as determined in the same manner described
in Paragraph (b) above) for the Company's Special Contractor
Program, small contractors program, and any environmental automobile
program, and (iii) fifteen percent (15%) of all gross written
premiums received by the Company (as determined in the same manner
described in Paragraph (b) above) for insureds purchasing coverage
with the Company who are also insured by the Workers' Compensation
Insurance Program developed by Program Manager through other
companies for insureds of the Company. The Management Fee shall be
calculated and payable on a monthly basis on the tenth (10th) day of
the following month and may be deducted by Program Manager from
premiums received on behalf of the Company;
(d) with respect to the Company's professional liability insurance
program, a fee equal to thirty-five percent (35%) of the first Two
Hundred Thousand dollars ($200,000) of net written premium and
capital contributions collected by the Company, and twenty percent
(20%) of the net written premium and capital contributions collected
by the Company in excess of Two Hundred Thousand dollars ($200,000);
(e) reimbursement of the Program Manager's documented costs and expenses
of providing Loss Control Services as described in Section B.5.
hereof, including salaries, bonus or commissions, taxes, fringe
benefits, travel expenses, clerical support, office space,
equipment, telephone and related items plus a twenty percent (20%)
overhead allowance; and
(f) reimbursement of the Program Manager's documented costs and expenses
of providing Marketing Services as described in Section B.1. hereof,
including
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salaries, bonus or commissions, taxes, fringe benefits, travel
expenses, clerical support, office space, equipment, telephone,
advertising expense and related items and the Program Manager's
documented cost and expense for premium audit services, including
travel expenses
2. In the event the Program Manager or any other parent or related
company, subsidiary or affiliate of Program Manager negotiates and is
directed by the Company to bind reinsurance on behalf of the Company or
if Program Manager effects a bonding program or similar transaction or
additional lines of business at the request of or approved by the
Company, the Program Manager or such parent or related company,
subsidiary or affiliate shall be allowed to receive a reinsurance
commission or similar commission from the reinsurers, carriers, or
surety in an amount customarily paid by such reinsurers, carriers or
surety.
3. Except as otherwise provided herein, all expenses (including overhead
expenditures) incurred by the Program Manager in the performance of its
services under this Agreement shall be the responsibility of Program
Manager, and the Company shall have no obligation to reimburse the
Program Manager for any such expenses. However, any expenses incurred by
the Program Manager at the direction of or on behalf of the Company,
including, but not limited to attendance at meetings of the Company or
its reinsurers, attendance at regulatory and association meetings, and
extraordinary printing or operational expenses (e.g., policies; the
Company Guidelines; meeting materials; brochures; annual reports, etc.),
shall be promptly paid or reimbursed by the Company upon its receipt of
documentation evidencing such expenses.
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E. Termination
1. The Company may, at its option, terminate this Agreement without
liability in the event the Program Manager shall fail or refuse to
perform a material obligation imposed upon it under the terms of this
Agreement or shall, through negligence, willful misconduct or breach of
duty, do any act or thing in connection with the performance of its
duties under this Agreement which results in loss or liability to the
Company. In such event, the Company shall furnish written notice of
default to the Program Manager, specifying in such notice the default
giving rise to the right to terminate, and, upon the failure or refusal
of the Program Manager to cure such default or reimburse the Company for
such loss on or before 45 days after such notice, this Agreement may be
terminated by the Company. This provision shall in no way limit the
remedies of the non-defaulting party to seek any and all appropriate
legal or equitable relief.
2. The Program Manager may, at its option, terminate this Agreement
without liability in the event the Company shall fail or refuse to
perform a material obligation imposed on it under the terms of this
Agreement or shall, through negligence, willful misconduct or breach of
duty, do any act or thing on connection with the performance of its
duties under this Agreement which results in loss to or liability of the
Program Manager. In such event, the Program Manager shall furnish
written notice of default to the Company, specifying in such notice the
breach giving rise to the right to terminate, and, upon the failure or
refusal of the Company to cure such default or reimburse the Program
Manager for such loss on or before 45 days after such notice, this
Agreement may be terminated by the Program Manager. This
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provision shall in no way limit the remedies of the non-defaulting party
to seek any and all appropriate legal or equitable relief.
3. Either the Company or Program Manager may, at its option, terminate this
Agreement at any time without liability, if the Program Manager or
Company, as the case may be, becomes insolvent or bankrupt or admits, in
writing, its inability to pay its debts as they become due or makes an
assignment for the benefit of creditors or applies for or consents to
the appointment of a trustee or receiver for the major part of its
property or if bankruptcy, reorganization, rearrangement, insolvency or
liquidation proceedings or other proceedings for relief under any law of
debtors are instituted by or against the Program Manager, or the
Company, as the case may be, and if so instituted, are consented to or
not contested within 60 days after the commencement of such proceedings.
4. Termination of this Agreement shall not relieve any party hereto of its
liability for the performance of obligations imposed upon such party
during the effective period of this Agreement if such obligations have
not been performed or completed at the time of termination.
F. Term
1. The Initial Term ("Initial Term") of this Agreement shall be from
January 1, 1997 through December 31, 1999. Following the Initial Term,
this Agreement shall continue thereafter for successive period(s) of one
year each, as hereinafter provided, unless terminated under the
provisions of Section E hereof or Section F.2. below.
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2. Anything herein to the contrary notwithstanding, this Agreement in its
entirety shall continue in full force and effect for a one-year period
after the termination of the Initial Term hereof, and for successive
one-year periods thereafter, unless either party shall give written
notice to the other on or before 90 days prior to the end of the Initial
Term, or 90 days prior to the end of each successive renewal term, that
it elects to terminate this Agreement.
3. If neither party exercises its right to terminate under Section E or
Section F.2. above, the compensation payable to the Program Manager for
successive one-year periods beyond the Initial Term shall be subject to
renegotiation and mutual agreement by the parties prior to the first day
of each successive one-year period. In the event of the parties' failure
to reach agreement, either party may request arbitration, as provided in
Section I of this Agreement, or the then existing compensation structure
shall remain in effect if arbitration is not requested within thirty
(30) days after the beginning of the successive one-year period.
G. Books and Records
The Program Manager shall prepare, keep and maintain, for the duration of
this Agreement and for such period thereafter as the parties shall agree,
all books, records, reports, and statistics produced by it in rendering
services to the Company under this Agreement. The Company shall retain the
right of access to all such books, records, reports and statistics at such
times during the term of this Agreement, and any renewals thereof, as
reasonably requested, and after the termination of this Agreement, as the
parties shall determine. All books, records, reports, statistics, data,
computer programs, and information pertaining to the business and affairs of
the Company is confidential information, and the ownership
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thereof shall at all times be and remain in the Company. The Program Manager
shall not disclose any data or information developed or acquired by it in
the performance of its duties hereunder or the contents of any books,
records, reports or other material pertaining to the business and affairs of
the Company to any person not a party to this Agreement without the prior
written consent of the Company, unless such disclosure is in the ordinary
course of the Company's business (e.g., financial information to insurance,
corporate or securities regulators, brokers, insureds and prospects). In the
event of termination of this Agreement, the Program Manager shall be
permitted to retain copies of all such information for its records.
H. General
1. The Company shall indemnify the Program Manager, its directors,
officers and employees, for all claims, suits, judgments and damages
arising out of the Program Manager's good faith efforts to implement the
policies and procedures of the Company. However, such indemnification
shall not arise as a result of any action or failure to act by the
Program Manager through its negligence, willful misconduct or breach of
duty in connection with the performance of its duties under this
Agreement.
2. The Program Manager shall not be held responsible or liable for, and
shall be indemnified against, any losses or errors or omissions arising
out of insurance contracts, binders or certificates issued in accordance
with the rules and procedures of the Company as communicated to the
Program Manager from time to time in writing by the Company, except as a
result of any action or failure to act by the
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Program Manager through its negligence, willful misconduct or breach of
duty in connection with the performance of its duties under this
Agreement.
3. The Program Manager shall indemnify the Company, its directors,
officers and employees for all losses, claims, suits, judgments,
damages, liabilities or expenses incurred by the Company, or such
directors, officers and employees, as a result of the Program Manager's
failure or refusal to perform any material obligation imposed by it
under the terms of this Agreement or as a result of any action or
failure to act by the Program Manager through its negligence, willful
misconduct or breach of duty in connection with the performance of its
duties under this Agreement.
4. In performing the services pursuant to this Agreement, the Program
Manager shall be acting as an independent contractor and shall not be
deemed to be an agent or employee of the Company for any purposes.
5. It is expressly understood that all premiums collected by the Program
Manager are trust funds and that such premiums shall be held for the
Company by the Program Manager in accordance with applicable provisions
of Georgia law and, if applicable, the laws of other states until
delivered to the Company in accordance with rules and procedures from
time to time agreed to by the Company and the Program Manager. The
Program Manager shall not be held liable by the Company for any premiums
which it is unable to collect, after reasonable effort to do so under
this Agreement, on any binders, contracts or certificates of insurance
issued by the Program Manager in accordance with the rules and
procedures of the Company.
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6. This Agreement may not be assigned in whole or in part by either party
hereto without the prior written consent of the other party; provided,
however, that the Program Manager may fulfill its obligations under this
Agreement by assigning responsibilities to affiliated or commonly
controlled entities; or, by subcontracting for various services with
third parties to the extent the Program Manager deems advisable and
prudent upon prior written approval of the Company, which approval shall
not be unreasonably withheld.
7. This Agreement constitutes the entire agreement between the Program
Manager and the Company, and it cannot be altered or amended except in
writing, signed by an authorized representative of each of the parties.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of Vermont.
9. This Agreement is binding upon and shall inure to the benefit of the
parties hereto, their respective successors and assigns.
10. The recitals set forth at the beginning of this Agreement are
incorporated by reference in, and made a part of, this Agreement.
I. Arbitration
1. In the event that the Company and the Program Manager cannot reach
agreement with respect to compensation as described in Sections D.1.(a)
or F.3. of this
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Agreement, either party may refer such matter to arbitration as outlined
below in Section I.3.
2. As a precedent to any right of action hereunder, if any dispute shall
arise between the Company and the Program Manager with reference to the
interpretation of this Agreement or their rights with respect to any
transaction involved, whether such dispute arises before or after
termination of this Agreement, such dispute, upon the written request of
either party, shall be submitted to arbitration as outlined below in
Section I.3.
3. The arbitration shall be commenced upon the written notice of either
party and shall be submitted to two arbitrators, one to be chosen by
each party, and such arbitrators shall choose an umpire before entering
upon arbitration. If either party fails to appoint an arbitrator within
thirty days after the receipt of written notice from the other party
requesting them to do so, the requesting party may appoint two
arbitrators. If the two arbitrators fail to agree in the selection of an
umpire within thirty days of their appointment, each of them shall name
two, of whom the other shall decline one and the decision shall be made
by drawing lots. The arbitrators and umpire shall be active or former
executive officers of insurance or reinsurance companies not under the
control of either party to this Agreement.
The arbitrators and umpire shall interpret this Agreement as an
honorable engagement and not as merely a legal obligation, and they are
relieved of all judicial formalities and may abstain from following the
strict rules of the law, and they shall make their award with a view to
effecting the general purpose of this Agreement in a reasonable manner
rather than in accordance with a literal interpretation of the
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language. Each party shall submit their case to the arbitrators within
thirty days of the appointment of the umpire.
The decision in writing of the arbitrators, when filed with the parties
hereto, shall be final and binding on both parties. Should the
arbitrators fail to agree, the decision of the umpire shall be final and
binding on both parties. Judgment may be entered upon the final decision
of the arbitration in any court having jurisdiction. Each party shall
bear the expense of their own arbitrator and shall jointly and equally
bear with the other party the expense of the umpire and of the
arbitration. Said arbitration shall take place in Atlanta, Georgia
unless some other place is mutually agreed upon by the Company and the
Program Manager.
J. Notice
Any notice or communication required or permitted to be given between the
parties hereto pursuant to this Agreement shall be in writing and shall be
personally delivered or mailed by first-class or certified mail, postage
prepaid, or by any other reasonable method of delivery. Notices shall be
addressed as follows:
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To the Program Manager:
Environmental Management Insurance Services, Inc.
0000 Xxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxx
To the Company:
American Safety Risk Retention Group, Inc.
c/o Mutual Risk Management (Vermont), Ltd.
Xxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
Womble, Carlyle, Xxxxxxxxx & Rice
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxx, XX 00000
or to such other address as the parties may designate in writing.
IN WITNESS WHEREOF, the parties have executed this Agreement.
"Program Manager"
Environmental Management Insurance Services, Inc.
By: ________________________________________
Title: ______________________________________
Date: ______________________________________
"Company"
American Safety Risk Retention Group, Inc.
By: ________________________________________
Title: ______________________________________
Date: ______________________________________ January 15, 1997
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