XXXXXXX 00.00
XXXXX XX XXXXX XXXXXXXX ) MARKETING AGREEMENT
)
COUNTY OF RICHLAND )
THIS AGREEMENT made and entered into this 21st day of May, 2003 by and between
Benefit Coordinators, Inc. (hereinafter "the Company") and CapitalBank.
WITNESSETH:
WHEREAS, the Company is a corporation in the business of developing
employee welfare benefit plans, including but not limited to plans for life,
medical, dental and disability insurance and administers plans, including but
not limited to Section 125, Section 105 and COBRA plans;
WHEREAS, the Company and CapitalBank will be involved in the marketing
effort for the employee welfare benefit plans developed by the Company;
WHEREAS, the Company and CapitalBank, for their mutual protection and the
more harmonious and successful management of the employee welfare benefit plans,
wish to provide for the marketing of the plan to the clients and potential
clients of CapitalBank;
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein below, the Company and CapitalBank hereby agree as follows:
ARTICLE I
Term
Except as set forth in Article V below, this Agreement shall continue in full
force and effect for a term of five (5) years from the date hereof, and shall
thereafter be automatically extended for an additional five (5) year term unless
written notice of termination is sent by either party to the other one hundred
eighty (180) days prior to the termination of the original term. Notwithstanding
the foregoing, but subject to Article V below, this Agreement may be terminated
by either party for "cause" upon fifteen (15) days prior written notice. "Cause"
for such termination shall occur when either party is in default under any
provision of this Agreement and by such default has not been cured within
fifteen (15) days after receipt of a termination notice.
ARTICLE II
(Reserved)
ARTICLE III
Duties of the Company
The Company covenants as follows
a) It will furnish to CapitalBank upon request, pricing and
technical information covering the employee welfare benefit plans
and services provided by the Company;
b) It will furnish to CapitalBank from time to time information
concerning the availability of new benefits, which may be
marketable to CapitalBank and is clients. However, such benefits
shall be included in this Agreement;
c) It will compensate CapitalBank as set forth in Article V.
ARTICLE IV
Duties of CapitalBank
CapitalBank covenants as follows:
(a) It will maintain all applicable licenses for marketing the
insurance programs including but not limited to life, health
insurance licenses.
(b) It will permit the Company and/or its representatives to address
meetings of CapitalBank's clients in order to promote the
employee welfare benefit plans and services;
(c) From time to time during the term of this Agreement, it will
promote and market the benefits and services available under the
employee welfare benefit plans, to its clients;
ARTICLE V
Compensation
The Company shall compensate CapitalBank for its performance in marketing
the employee welfare benefit plans and services. In the event The Company
provides employee welfare benefit related plans or services to any person or
entity which during the term of this Agreement is referred or introduced to The
Company by CapitalBank (a "Customer") and which at time of the referral or
introduction is not a client of The Company, The Company shall pay to
CapitalBank, within ten (10) days after the end of each month, a fee for each
such Customer calculated as follows:
A. Less than 25 Covered Lives. For each Customer whose benefit group at
the time of becoming a client or at the annual renewal of the benefit plan
consist of less than 25 covered lives, a fee equal to 10% of the aggregate
commissions and other fees that The Company received during such month from any
and all insurance carriers and other third parties related to such Customer.
B. 25 to 100 Covered Lives. For each Customer whose benefit group at the
time of becoming a client or at the annual renewal of the benefit plan consisted
of 25 to 100 covered lives, a fee equal to 20% of the aggregate commissions and
other fees that The Company received during such month from any and all
insurance carriers and other third parties related to such Customer.
C. Greater than 100 Covered Lives. For each Customer whose benefit group
at the time of becoming a client or at the annual renewal of the benefit plan
consisted of greater than 100 covered lives, a fee equal to 30% of the aggregate
commissions and other fees that The Company received during such month from any
and all insurance carriers and other third parties related to such Customer.
All payments to CapitalBank hereunder shall be accompanied by reasonable
and sufficient written detail to inform CapitalBank of the calculation of all
fees due CapitalBank hereunder for such preceding month. For purposes of this
Article V, the term "Company" shall include any and all Affiliates (as defined
below). For purposes hereof, "Affiliates" shall mean any corporation, limited
liability company, partnership or other legal entity that directly or indirectly
controls, is controlled by, or is under common control with, The Company. For
purposes of this definition, "control" means the power, whether or not normally
exercised, to direct the management and affairs of another corporation, limited
liability company, partnership or other legal entity, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise. In
the case of a corporation, the direct or indirect ownership of fifty percent
(50%) or more of its outstanding voting shares shall in any case be deemed to
confer control, provided that the direct or indirect ownership of a lower
percentage of such securities shall not necessarily preclude the existence of
control.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PARTIES HERETO
ACKNOWLEDGE AND AGREE THAT THE OBLIGATIONS OF THE COMPANY TO PAY FEES TO
CAPITALBANK PURSUANT TO THIS ARTICLE V SHALL CONTINUE WITHOUT INTERRUPTION, AND
SHALL SURVIVE THE EXPIRATION OF THE TERM OF THIS AGREEMENT SET FORTH IN ARTICLE
I ABOVE AND, UNLESS CAPITALBANK SPECIFICALLY AGREES OTHERWISE IN WRITING, SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON. The Company hereby
acknowledges that the right of CapitalBank to receive fees as described above is
material to CapitalBank's decision to enter into this Agreement and provide
services hereunder, and is reasonable both in time and amount for the services
to be provided to The Company by CapitalBank hereunder.
ARTICLE VI
Separate Entities
Nothing contained in the Agreement shall be construed to constitute CapitalBank
as a partner or employee of the Company for any purpose whatsoever; CapitalBank
being a separate entity engaged in its own and entirely separate business.
Nothing herein shall be deemed to create any joint venture or agency
relationship between the parties hereto. Neither party shall make any
representation or statement (whether oral or written) to any person or entity
inconsistent with this Article.
ARTICLE VII
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior or contemporaneous
written or oral agreements or representations between the parties with respect
thereto.
ARTICLE VIII
Severability; Headings
If a court declares any term of this Agreement invalid, the same will not
affect the validity of any other provision, provided that the basic purposes of
this Agreement are achieved through the remaining valid provisions. The headings
of Sections and subsections contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
ARTICLE IX
Compliance; Non-Waiver
Failure by CapitalBank or The Company to insist upon strict performance of
any provision of this Agreement will not modify such provision, render it
unenforceable, or waive any subsequent breach. No waiver or modification of any
of the terms or provisions of this Agreement shall be valid unless in each
instance the waiver or modification is accomplished pursuant to the amendment
provisions of Article X
ARTICLE X
Assignment; Amendment
Neither CapitalBank nor The Company can assign this Agreement without the
other party's prior written consent. This Agreement may be amended only by
written agreement of duly authorized officers of CapitalBank and The Company.
ARTICLE XI
Audits
Each party shall be authorized to perform audits of the records of payment
to all Participants and other data specifically related to performance of the
parties under this Agreement upon reasonable prior written notice to the other
party. Audits shall be performed during normal working hours. An agent of either
party may perform audits provided such agent signs an acceptable confidentiality
agreement. Each party agrees to provide reasonable assistance and information to
the auditors. CapitalBank acknowledges and agrees that if it requests an audit,
it shall reimburse Company for Company's reasonable expenses, including copying
and labor costs, in assisting CapitalBank to perform the audit. Each party also
agrees to provide such additional information and reports, as the other party
shall reasonably request.
ARTICLE XII
Non-Disclosure of Proprietary Information
a. General. CapitalBank and The Company each acknowledge that in
contemplation of entering into this Agreement (and as a result of the
contractual relationship created hereby), each party has revealed and
disclosed, and shall continue to reveal and disclose to the other,
information which is proprietary and/or confidential information of
such party. CapitalBank and The Company agree that each party shall;
(a) keep such proprietary and/or confidential information of the other
party in strict confidence; (b) not disclose confidential information
of the other party to any third parties or to any of its employees not
having a legitimate need to know such information; and (c) shall not
use confidential information of the other party for any purpose not
directly related to and necessary for the performance of its
obligations under this Agreement (unless required to do so by a court
of competent jurisdiction or a regulatory body having authority to
require such disclosure).
b. Confidential Information Defined. Information revealed or disclosed by
a party for any purpose not directly related to and necessary for the
performance of such party's obligations under this Agreement shall not
be considered confidential information for purposes hereof; (a) if,
when, and to the extent such information is or becomes generally
available to the public without the fault or negligence of the party
receiving or disclosing the information; or (b) if the unrestricted
use of such information by the party receiving or disclosing the
information has been expressly authorized in writing and in advance by
an authorized representative of the other party. For purposes of this
Section, confidential information is any information in written,
human-readable, machine-readable, or electronically recorded form (and
identified as confidential and/or proprietary or words of similar
import) and information disclosed orally in connection with this
Agreement and identified as confidential and/or proprietary (or words
of similar import); and programs, policies, practices, procedures,
files, records and correspondence concerning the parties' respective
businesses or finances. The terms and conditions of this Article XII
shall survive the termination of this Agreement.
ARTICLE XIII
Arbitration
Any controversy or claim arising out of or relating to this Agreement
between CapitalBank and The Company, or the breach thereof, shall be subject to
non-binding arbitration prior to the filing of a complaint in a court of law;
provided, however, that such arbitration shall be final and binding and may be
enforced in any court with the requisite jurisdiction if the parties agree in
advance, in writing, that such arbitration shall have final, binding effect. All
arbitration, whether binding or non-binding, shall be conducted in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
The arbitration shall take place in Columbia, SC.
ARTICLE XIV
Notices and Communications
(a) Notices. All notices provided for herein shall be sent by confirmed
facsimile, or guaranteed overnight mail, with tracing capability, or
by first class United States mail, with postage prepaid, addressed to
the other party at their respective addresses set forth below or such
other addresses as either party may designate in writing to the other
from time to time for such purposes. All notices provided for herein
shall be deemed given or made when received.
(b) Addresses.
CapitalBank's address for notices as described above is: X.X. Xxx 000
Xxxxxxxxx, XX 00000, Attn: R. Xxxxxx Xxxxxx
The Company's address for notices as described above is: 000 Xxxxxx
Xxxxxx Xxxx. Xxxxxxxx, XX 00000 Attn: Xxxxxx Xxxxxx
ARTICLE XV
Choice of Law
This Agreement shall be construed in accordance with the laws of the State of
South Carolina.
ARTICLE XVI
Interpretation
As used in this Agreement, the singular includes the plural number and the
masculine includes the feminine and neuter genders as the context or sense of
the Agreement or any section hereof may require.
ARTICLE XII
Modification
This Agreement shall not be modified unless in writing and signed by all of the
parties hereto in the same manner as this Agreement is executed.
ARTICLE XVIII
Indemnification
To the fullest extent permitted by law, The Company shall indemnify, defend
and hold harmless CapitalBank and its agents from and against any and all
claims, losses, costs, expenses, damages, awards or settlements (including the
payment of reasonable attorneys' fees) arising out of or resulting from the
performance of the services covered by this Agreement caused in whole or in part
by any negligence, intentional or willful act or omission of The Company or its
agents. The terms of this Article shall survive the termination of this
Agreement.
ARTICLE XIX
Miscellaneous
(a) The provisions of this Agreement are not intended to be for the
benefit of any third parties, and no third party shall be deemed to have any
privity of contract with either of the parties hereto by virtue of this
Agreement.
(b) All rights and remedies of a party hereunder shall be cumulative and
in addition to such rights and remedies as may be available to a party at law or
equity.
(c) The parties hereto hereby (i) agree that any litigation, action or
proceeding arising out of or relating to this Agreement may be instituted in a
state or federal court in the State of South Carolina, (ii) waive any objection
which it might have now or hereafter to any such litigation, action or
proceeding based upon improper venue or inconvenient forum, and (iii)
irrevocably submit to the jurisdiction of such courts in any such litigation,
action or proceeding.
(d) If it is necessary for CapitalBank to employ attorneys for the
collection of amounts payable hereunder, all costs and expenses incident to such
collection, including without limitation reasonable fees of such attorneys,
shall be added to the amounts payable hereunder and be collected as a part
thereof.
(e) The termination of this Agreement for any reason shall not be deemed
to extinguish or mitigate any payments, which are owed to CapitalBank by The
Company.
IN WITNESS WHEREOF, the parties have set their hand to two (2) copies of this
Agreement on the date above-written.
WITNESS: Benefit Coordinators, Inc.
/s/ XXXXXXX XXXXXX By: /s/ XXXXXX XXXXXX
----------------------- -----------------------
5-16-03 Its: President
-------
Date
CapitalBank
/s/ R. XXXXXX XXXXXX By: /s/ XXXXXXX X. XXXXXXX
----------------------- -----------------------
5-21-03 Its: C.E.O.
-------
Date
