Exhibit 10.19
AMENDED AND RESTATED BENEFITS ADMINISTRATION CONTRACT
THIS BENEFITS ADMINISTRATION CONTRACT ("Agreement"), dated as of January 1,
1998, is made by and between The Millers Mutual Fire Insurance Company, a Texas
mutual insurance company ("Millers Mutual"), and INSpire Insurance Solutions,
Inc., a Texas corporation ("INSpire," and together with Millers Mutual, the
"Parties").
PRELIMINARY STATEMENTS
A. Millers Mutual and INSpire (formerly known as MiliRisk, Inc.) were
parties to a management agreement, dated as of January 1, 1996 (the "Prior
Agreement"), pursuant to which Millers Mutual performed certain services for and
on behalf of INSpire.
B. Millers Mutual and INSpire amended in its entirety the
Prior Agreement pursuant to a Benefits Administration Contract
(the "Second Prior Agreement").
C. The Parties now desire to amend the Second Prior Agreement, in its
entirety, such that INSpire shall provide certain benefit administration
services to Millers Mutual, as more fully described herein.
NOW, THEREFORE, in consideration of the foregoing preliminary statements,
the mutual covenants and agreements contained herein, the parties hereto,
intending to be legally bound hereby, agree to amend and restate in its entirety
the Second Prior Agreement as follows:
STATEMENT OF AGREEMENT
ARTICLE I.
DEFINITIONS
Unless the context otherwise requires, the terms defined in this Article I
shall, for the purposes of this Agreement, have the meanings herein specified:
"EFFECTIVE DATE" means January 1, 1998.
"FISCAL YEAR" shall mean the period from January 1 through December 31 of
each year.
"TERM OF AGREEMENT" means the period from the Effective Date until the
Agreement is terminated pursuant to Article V.
ARTICLE II.
DUTIES AND OBLIGATIONS OF MILLERS MUTUAL
Section 2.1 BENEFITS ADMINISTRATION SERVICES. INSpire shall provide
administrative and support services for and on behalf of Millers Mutual and its
subsidiaries which shall include payroll and benefits administration and
preparation of Form 5500.
ARTICLE III.
COMPENSATION, EXPENSES AND PAYMENT
Section 3.1 FEE. The compensation due INSpire from Millers Mutual for
services provided pursuant to Section 2.1 of this Agreement shall be a monthly
fee of $15,000 (the "Monthly Fee").
Section 3.2 INVOICING AND PAYMENT. INSpire shall xxxx Xxxxxxx Mutual
monthly for the Monthly Fee within 15 days after the end of each calendar month
during the Term of Agreement. Payment shall be made by Millers Mutual within 30
days after the delivery of such invoice.
Section 3.3 LATE PAYMENT. Any amount owing from Millers Mutual to INSpire
that has not been paid by the due date shall be subject to a late payment charge
of 1% per month.
ARTICLE IV.
ACCESS TO INFORMATION, BOOKS AND RECORDS
INSpire and its duly authorized representatives shall have access, to the
extent necessary to perform the services pursuant to Section 2.1, to Millers
Mutual's offices, facilities and records, wherever located, in order to
discharge INSpire's responsibilities hereunder; provided, however, Millers
Mutual shall provide and make available to INSpire and its duly authorized
representatives at INSpire's Fort Worth, Texas offices, at INSpire's request,
all such records required by INSpire to perform its duties pursuant to this
Agreement. All records and materials furnished to INSpire by Millers Mutual in
performance of this Agreement shall at all times during the Term of Agreement
remain the property of Millers Mutual.
ARTICLE V.
TERM AND TERMINATION OF THE AGREEMENT
Section 5.1 INITIAL TERM. This Agreement shall be effective from the
Effective Date and shall continue for three (3) years thereafter (the "Initial
Term"); subject, however, to the terms of Section 5.2 hereof. At the end of the
Initial Term, this Agreement shall continue in force and effect for subsequent
one (1) year periods unless terminated by either Party by written notice at
least sixty (60) days prior to the anniversary date of the Effective Date.
Section 5.2 TERMINATION. This Agreement may be sooner terminated on the
first to occur of the following:
(a) TERMINATION BY MUTUAL AGREEMENT
In the event the Parties shall mutually agree in writing, this
Agreement may be terminated on the terms and dates stipulated therein.
(b) UNCORRECTED MATERIAL BREACH
In the event either Party shall fail to discharge any of its material
obligations hereunder, or shall commit a material breach of this
Agreement, and such default or breach shall continue for a period of
thirty (30) days after the other Party has served notice of such
default, this Agreement may then be terminated at the option of the
non-breaching Party by notice thereof to the breaching Party.
Section 5.3 EFFECTS OF TERMINATION. Except for covenants or other
provisions herein that, by their terms, expressly extend beyond the Term of
Agreement, the Parties' obligations hereunder are limited to the Term of
Agreement.
Section 5.4 REIMBURSEMENT BY INSPIRE. In the event of termination under
this Agreement, INSpire shall reimburse Millers Mutual within 30 days after such
termination for fees paid by Millers Mutual but unearned by INSpire.
Section 5.5 FORCE MAJEURE. If either Party shall be prevented from
performing any portion of this Agreement (except the payment of money) by causes
beyond its control, including labor disputes, civil commotion, war, governmental
regulations or controls, casualty, inability to obtain materials or services or
acts of God, the defaulting party shall be excused from performance for the
period of the delay and for a reasonable time thereafter.
ARTICLE VI.
INDEMNIFICATION OF INSPIRE
Section 6.1 LIMITATION OF LIABILITY. In providing services hereunder,
INSpire shall have a duty to act, and cause its affiliates and designees to act,
in a reasonably prudent manner. Neither INSpire, nor any officer, director,
employee or agent of INSpire shall be liable to Millers Mutual for any error of
judgment or for any loss incurred by Millers Mutual in connection with the
matters to which this Agreement relates, except a loss resulting from the gross
negligence or willful misconduct on the part of INSpire.
Section 6.2 INDEMNIFICATION. Millers Mutual hereby agrees to indemnify and
hold harmless INSpire from and against any and all claims, causes of action,
liabilities, damages, costs, charges, fees, expenses (including reasonable
attorneys' fees and expenses to be reimbursed as incurred), suits, orders,
judgments, adjudication's and losses of whatever nature and kind which INSpire
or its affiliates or designees or for which INSpire or its affiliates or
designees become liable as the result of the performance of INSpire's
obligations and duties pursuant to this Agreement; provided, INSpire shall not
be indemnified for gross negligence or willful misconduct on the part of
INSpire.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 RELATIONSHIP OF PARTIES. This Agreement does not create a
partnership, joint venture or association; nor does this Agreement, or the
operations hereunder, create the relationship of lessor and lessee or xxxxxx and
bailee. Nothing contained in this Agreement or in any agreement made pursuant
hereto shall ever be construed to create a partnership, joint venture or
association, or the relationship of lessor and lessee or xxxxxx and bailee, or
to impose any duty, obligation or liability that would arise therefrom with
respect to either or both of the Parties. Specifically, but not by way of
limitation, except as otherwise expressly provided for herein, nothing contained
herein shall be construed as imposing any responsibility on INSpire for the
debts or obligations of Millers Mutual or any of its affiliates. It is hereby
expressly understood that INSpire is hereby engaged by Millers Mutual to provide
benefits administration services as an agent of Millers Mutual. INSpire, its
affiliates and designees shall have the right to render similar services for
other business entities and persons, including its own, whether or not engaged
in the same business as Millers Mutual, and may enter into such other business
activities as INSpire and its affiliates, in their sole discretion, may
determine.
Section 7.2 NO THIRD PARTY BENEFICIARIES. Except to the extent a third
party is expressly given rights herein, any agreement herein contained,
expressed or implied, shall be only for the benefit of the Parties and their
respective legal representatives, successors and assigns, and such agreements or
assumption shall not inure to the benefit of any other party whomsoever, it
being the intention of the Parties hereto that no person or entity shall be
deemed a third party beneficiary of this Agreement except to the extent a third
party is expressly given rights herein.
Section 7.3 GENERAL REPRESENTATIONS. Each Party represents and warrants
that on the Effective Date: (i) it is a corporation, duly established, validly
existing and in good standing under the laws of its state or jurisdiction of
incorporation, with power and authority to carry on the business in which it is
engaged and to perform its respective obligations under this Agreement; (ii) the
execution and delivery of this Agreement have been duly authorized and approved
by all requisite corporate action; (iii) it has all the requisite corporate
power and authority to enter into this Agreement and to perform its obligations
hereunder; and (iv) the execution and delivery of this Agreement do not, and
consummation of the transactions contemplated herein will not, violate any of
the provisions of its charter or bylaws or any state or federal laws applicable
to them.
Section 7.4 ASSIGNMENT. No assignment of this Agreement or any of the
rights or obligations set forth herein by either Party shall be valid without
the specific written consent of the other Party.
Section 7.5 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally, mailed by first class mail postage prepaid and return receipt
requested or sent by recognized overnight delivery service or facsimile
transmission to the address below indicated:
If to Millers Mutual: The Millers Mutual Fire Insurance
Company
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxx X. Xxxxxx
Facsimile: (000) 000-0000
If to INSpire: INSpire Insurance Solutions, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Notice
so given shall, in the case of notice so given by mail, be deemed to be given
and received on the fourth calendar day after posting, in the case of notice so
given by recognized overnight delivery service, on the date of actual delivery
and, in the case of notice so given by facsimile transmission or personal
delivery, on the date of actual transmission or, as the case may be, personal
delivery.
Section 7.6 FAILURE TO PURSUE REMEDIES. The failure of any party to seek
redress for violation of, or to insist upon the strict performance of, any
provision of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
Section 7.7 CUMULATIVE REMEDIES. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive its right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
Section 7.8 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of all of the parties and, to the extent permitted by this
Agreement, their successors, legal representatives and assigns.
Section 7.9 INTERPRETATION. Throughout this Agreement, nouns, pronouns and
verbs shall be construed as masculine, feminine, neuter, singular or plural,
whichever shall be applicable. All references herein to "Articles," "Sections"
and paragraphs shall refer to corresponding provisions of this Agreement.
Section 7.10 HEADINGS. Headings are solely for convenience and ease of
reference and are not to be considered in the construction or interpretation of
any provision of this Agreement.
Section 7.11 SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted unless such invalid or unenforceable
provision affects the fundamental purpose of this Agreement.
Section 7.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties hereto had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. This Agreement may also be executed and
delivered by exchange of facsimile transmissions of originally executed copies.
Section 7.13 INTEGRATION. This Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and supersedes
all prior agreements and understandings pertaining thereto, including but not
limited to, the Prior Agreement and the Second Prior Agreement.
Section 7.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS,
OF THE STATE OF TEXAS.
Section 7.15 ARBITRATION.
(a) To the fullest extent permitted by law, any controversy or claim
arising out of or relating to any alleged breach shall be resolved by
arbitration by a panel of three (3) arbitrators under the American Arbitration
Association ("AAA") Arbitration Rules in force (the "AAA Rules") in accordance
with the following:
(1) In the event of any conflict between the AAA Rules and the provisions
of this Agreement, the provisions of this Agreement shall prevail.
(2) Either party may refer a matter to arbitration by written notice to
the other party by giving notice as provided in this Agreement.
(3) The place of the arbitration shall be Fort Worth,
Texas.
(4) The claimant party shall appoint one arbitrator and the respondent
party shall appoint one arbitrator, and the two arbitrators so
appointed shall appoint the third arbitrator, in accordance with the
AAA Rules. In the event of an inability to agree on a third
arbitrator, the appointing authority shall be the AAA.
(5) The decision of the arbitrators shall be made by majority vote and
shall be in writing.
(6) The decision of the arbitrators shall be final and binding on the
parties save in the event of fraud, manifest mistake or failure by any
of the arbitrators to disclose any conflict of interest.
(7) The decision of the arbitrators may be enforced by any court of
competent jurisdiction and may be executed against the person and
assets of the losing party in any jurisdiction.
(b) In the event any dispute is submitted to arbitration pursuant to
Section 7.15(a) above, the panel of arbitrators may, if it deems such award
appropriate, award a party costs and expenses incurred by such party in
enforcing its rights. Except as so awarded, each party shall bear its own costs
and expenses of enforcing its rights to arbitrate under this Section 7.15.
(c) Except for arbitration proceedings pursuant to Section 7.15(a) above,
no action (other than the enforcement of any arbitration decision) or lawsuit
shall be brought by or between Millers Mutual and INSpire concerning or arising
out of this Agreement.
Section 7.16 AGREEMENT TO PERFORM NECESSARY ACTS. Each party agrees to
perform any further acts and execute and deliver any and all further documents
and/or instruments which may be reasonably necessary to carry out the provisions
of this Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
THE MILLERS MUTUAL FIRE INSURANCE
COMPANY
By: /S/ XXX X. XXXXXX
---------------------------------------
Name: Xxx X. Xxxxxx
Title: Executive Vice President and CFO
INSPIRE INSURANCE SOLUTIONS, INC.
By: /S/ XXXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
