Exhibit 10.11.1
TEMPORARY BLUE SHIELD
AFFILIATE LICENSE AGREEMENT
This agreement is by and between Blue Cross and
Blue Shield Association ("BCBSA") and RightChoice Managed
Care, Inc. (the "Affiliate"), an affiliate of the Blue Shield
Plan known as Blue Cross and Blue Shield of Missouri (the
"Plan"), which is also a Party signatory hereto.
Preamble
WHEREAS, BCBSA is the owner of the BLUE SHIELD and
the BLUE SHIELD Design service marks (collectively the
"Licensed Marks");
WHEREAS, the Affiliate had the right to use the
Licensed Marks as service marks and the name BLUE SHIELD in a
trade name (the "Licensed Name");
WHEREAS, BCBSA informed the Plan and the Affiliate
that the Plan's Blue Shield License Agreement and the
Affiliate's Blue Shield Affiliate License Agreement
automatically terminated as a result of claims made in
certain litigation pending among and between the Plan; Xxx
Xxxxxx, in his official capacity as Director of the Missouri
Department of Insurance; and Xxxxxxxx "Xxx" Xxxxx, in his
official capacity as the Attorney General of the State of
Missouri (the "Litigation");
WHEREAS, the Plan has told BCBSA that (i) the Plan
believes that the Litigation has not triggered the automatic
termination provisions of the Plan's Blue Shield License
Agreement or the Affiliate's Blue Shield Affiliate License
Agreement and the Plan contends that its Blue Shield License
Agreement and the Affiliate's Blue Shield Affiliate License
Agreement remain in full force and effect; and (ii) to
clarify the Affiliate's rights to continue to use the
Licensed Marks and Licensed Name, the Plan and the Affiliate
wish to receive, and are willing to accept benefits and
rights under, this Temporary Blue Shield Affiliate License
Agreement;
WHEREAS, BCBSA has determined that it is in the
best interest of BCBSA, the Licensed Marks, and its member
Plans to grant the Plan and the Affiliate this temporary
license;
NOW THEREFORE, in consideration of the foregoing
and the mutual agreements hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as
follows:
Agreement
1. BCBSA hereby grants the Affiliate, upon the
terms and conditions of this Temporary Blue Shield Affiliate
License Agreement ("Temporary Affiliate License"), the
temporary right to use the Licensed Marks and Name in its
licensed service area in connection with, and only in
connection with: (i) health care plans and related services
and administering the non-health portion of workers'
compensation insurance, and (ii) underwriting the indemnity
portion of workers' compensation insurance, provided that
Affiliate's total premium revenue comprises less than 15
percent of the sponsoring Plan's net subscription revenue.
This grant of rights is non-exclusive and is limited to the
Service Area served by the Plan. The Affiliate may not use
the Licensed Marks and Name in its legal name and may use the
Licensed Marks in its Trade Name only with the prior consent
of BCBSA.
2. This Temporary Affiliate License shall
incorporate the terms, covenants, conditions, and licensed
service area of the Affiliate's Blue Shield Affiliate License
Agreement (the "Full Affiliate License"), a current copy of
which is attached as Exhibit A, provided that paragraphs one
through seven of this Temporary License shall control to the
extent they conflict with the terms, covenants, and
conditions of the Full Affiliate License. The terms
"Agreement," "License," and "License Agreement" as used in
the Full Affiliate License shall be construed to include this
Temporary Affiliate License, and the Affiliate shall be
considered a "Larger Affiliate" as that term is used in the
Full Affiliate License.
3. The Affiliate agrees not to bring any claims,
causes of action, actions, suits, or any demands whatsoever
against BCBSA or any of its Member Plans, whether at law or
equity, whether in judicial, arbitral, or alternative fora,
and whether known or unknown, that the Affiliate now has or
may have had on behalf of itself or any other person or
entity at any time prior to and including the date of this
Temporary Affiliate License, or hereafter can, shall, or may
have or claim to have, arising out of or in any way related
to the aforementioned automatic terminations or any actions
taken or contemplated herein or related thereto, so long as
the Affiliate remains a licensee pursuant to any temporary
Blue Shield license or any then-effective Full Affiliate
License.
4. The Affiliate and the Plan covenant and
warrant that: (i) apart from the Litigation, they are in
compliance with all, and have no plans to engage in conduct
that would violate any, BCBSA rules and regulations,
including all provisions of this Temporary Affiliate License;
and (ii) there is no imminent risk of dissolution of the
Affiliate or the Plan or of the appointment of a trustee,
interim trustee, receiver, or other custodian for any of the
Affiliate's or the Plan's business or property. If any of
these covenants and warranties is inaccurate or breached,
BCBSA may terminate this Temporary Affiliate License pursuant
to a vote of the BCBSA Board of Directors.
5. The provisions of paragraph 7(G) of the Full
Affiliate License related to notice to customers shall not
apply so long as the Affiliate remains a licensee pursuant to
any temporary Blue Shield license or any then-effective Full
Affiliate License.
6. This Temporary Affiliate License shall
automatically terminate upon the earlier of (i) the
expiration or termination of the stay of proceedings entered
on December 30, 1996, by the Circuit Court of Xxxx County,
Missouri, in the Litigation; or (ii) the termination of the
Litigation. All provisions for termination of this Temporary
Affiliate License that require a vote shall be by the vote of
the BCBSA Board of Directors prescribed in Article VI,
Section 5 of the BCBSA Bylaws in effect as of the effective
date of this Temporary Affiliate License.
7. BCBSA shall award the then-effective Full
Affiliate License to the Affiliate effective immediately upon
the expiration or termination of this Temporary Affiliate
License and the satisfaction of the following conditions as
determined by BCBSA: (i) the Litigation has been addressed
to eliminate the risk of dissolution of the Plan or the
appointment of a trustee, interim trustee, receiver, or other
custodian for any of the Plan's business or property, and in
a manner that is in the best interest of BCBSA, the Licensed
Marks, and the Plans; and (ii) the Affiliate is in compliance
with, and has no plans to engage in any conduct that would
violate, the applicable BCBSA rules and regulations,
including the provisions of the then-effective Full Affiliate
License.
IN WITNESS WHEREOF, the parties have caused this Temporary
Blue Shield Affiliate License Agreement to be executed,
effective as of the date of the last signature written below:
BLUE CROSS AND BLUE SHIELD ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
Title: Vice President and Assistant Secretary
Date: February 7, 1997
RIGHTCHOICE MANAGED CARE, INC.
Affiliate
By: /s/ Xxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
Date: January 24, 0000
XXXX XXXXX XXX XXXX XXXXXX XX XXXXXXXX
Plan
By: /s/ Xxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
Date: January 24, 1997
Exhibit A
Previously Filed as Exhibit 10.11
