AMENDMENT NO. 4 TO THE SPECIALTY UNDERWRITERS’ ALLIANCE, INC. PARTNER AGENT PROGRAM AGREEMENT
Exhibit 10.1
This amendment (“Amendment”) is made and entered into as of August 30, 2007 by and between
American Team Managers (“ATM”) and Specialty Underwriters’ Alliance, Inc., and amends the Partner
Agent Program Agreement (“Agreement”) entered into by the parties on May 1, 2004, as amended. Any
terms defined in the Agreement and used herein shall have the same meaning in this Amendment as in
the Agreement. In the event that any provision of this Amendment and any provision of the
Agreement are inconsistent or conflicting, the inconsistent or conflicting provision of this
Amendment shall be and constitute an amendment of the Agreement and shall control, but only to the
extent that such provision is inconsistent or conflicting with the Agreement. Any capitalized
terms not defined herein shall be defined as in the Agreement.
Now, therefore, in accordance with Section IX, D of the Agreement and in consideration of the
mutual agreements and covenants hereinafter set forth, the parties wish to amend the Agreement as
follows:
| 1. | SUA Insurance Company, a wholly owned subsidiary of Specialty Underwriters’ Alliance,
Inc., shall be added as a party to this Agreement. |
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| 2. | Exhibit B-2 attached hereto shall be added to the Agreement and shall be used for all
profit sharing calculations for Profit Sharing Periods beginning after January 1, 2007
(“Effective Date”). Under Exhibit B-2, Profit Sharing Years 2005 and 2006 shall be treated
as one year for purposes of calculating the Annual Profit Share for Profit Sharing Year
2007 and thereafter. All profit sharing calculations for Profit Sharing Years prior to
2007 shall continue to be calculated in accordance with Exhibit B to the original
Agreement. |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed on their
behalf by their duly authorized officers as of the day, month and year above written.
SPECIALTY UNDERWRITERS’ ALLIANCE, INC.
SUA INSURANCE COMPANY
SUA INSURANCE COMPANY
By: Name: |
/s/ Xxxxxxx X. Xxxxx
|
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Title:
|
Senior Vice President and | |||
| Chief Underwriting Officer |
AMERICAN TEAM MANAGERS
By:
|
/s/ Xxxxx Xxxxxxxx | |||
Name:
|
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Title:
|
CEO |
EXHIBIT B-2
PROFIT SHARING SCHEDULE
PROFIT SHARING SCHEDULE
The Profit Sharing Due to Partner Agent will be calculated using the following Tables:
Table I
Annual Profit Share
Profit Sharing Year [ ]
Annual Profit Share
Profit Sharing Year [ ]
Premium |
||||
1. Eligible Earned Premium before write off for Profit Sharing Year |
$ | |||
2. Premium Written Off |
$ | |||
3. Eligible Earned Premium (Line 1 minus Line 2) |
$ | |||
Expenses |
||||
4. Losses and ALAE Incurred for Profit Sharing Year |
$ | |||
5. TPA Claims Fee for Profit Sharing Year |
$ | |||
6. Claims Charge for Profit Sharing Year |
$ | |||
7. IBNR Charge for Profit Sharing Year |
$ | |||
8. Commissions Incurred for Profit Sharing Year |
$ | |||
9. Taxes, Licenses and Fees for Profit Sharing Year |
$ | |||
10. Operating Charge |
$ | |||
11. Dividends Incurred for Profit Sharing Year |
$ | |||
12. Expense Total (Sum of Lines 4, 5, 6, 7, 8, 9, 10 and 11) |
$ | |||
Profit Sharing Year Result |
||||
13. Profit Sharing Year Result (Line 3 minus line 12) (Can be negative) |
$ | |||
14. Profit Sharing Factor |
* | |||
15. Profit to be Shared before Accelerated Quarterly Profit Share (Line 13 times Line 14) (Can be negative) |
$ | |||
16. Accelerated Quarterly Profit Share (cumulative) |
$ | |||
17. Profit to be Shared (Line 15 minus Line 16) |
$ | |||
18. Payout Factor |
% | |||
19. Result (Line 17 times Line 18) |
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(Can be Negative) |
$ |
2
Based on this Table, the Partner Agent’s Combined Ratio is % (line 12 divided by line 3).
The maximum Profit Sharing due the Partner Agent will be limited to 5% of Eligible Earned Premium
per Profit Sharing Year.
*Profit Sharing Factor shall be equal to 5/7 multiplied by 50% for Combined Ratios below 100% and
50% for Combined Ratios greater than or equal to 100%.
A minimum total Eligible Written Premium of twenty million dollars ($20,000,000) and minimum
Eligible Written Premium of five million dollars ($5,000,000) for each program must be achieved
during the Profit Sharing Year to be paid out under the profit sharing calculation. The profit
sharing calculation will be completed regardless of whether Partner Agent meets its minimum
requirements.
3
Table II
Quarterly Profit Share
Profit Sharing Quarter [ ]
Quarterly Profit Share
Profit Sharing Quarter [ ]
Premium |
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1. Eligible Earned Premium before write off |
$ | |||
2. Premium Written Off |
$ | |||
3. Eligible Earned Premium (Line 1 minus Line 2) |
$ | |||
Expenses |
||||
4. Losses and ALAE Incurred |
$ | |||
5. TPA Claims Fee |
$ | |||
6. Claims Charge |
$ | |||
7. IBNR Charge |
$ | |||
8. Commissions Incurred |
$ | |||
9. Taxes, Licenses and Fees |
$ | |||
10. Operating Charge |
$ | |||
11. Dividends Incurred |
$ | |||
12. Expense Total (Sum of Lines 4, 5, 6, 7, 8, 9, 10 and 11) |
$ | |||
Profit Sharing Year Result |
||||
13. Profit Sharing Result (Line 3 minus line 12) (Can be negative) |
$ | |||
14. Profit Sharing Factor |
_ | * | ||
15. Profit to be Shared (Line 13 times Line 14) |
$ | |||
(Can be negative) |
Profit to be Shared shall be calculated on a cumulative year to date basis.
Based on this Table, the Partner Agent’s Combined Ratio is % (line 13 divided by line 3).
The maximum Profit Sharing due the Partner Agent will be limited to 2% of Eligible Earned Premium
per Profit Sharing Quarter.
*Profit Sharing Factor shall be equal to 2/7 multiplied by 50%.
4
Defined Terms Used in Table I and Table II
| A. | “Accelerated Quarterly Profit Share” shall mean Profit to be Shared based on calculation in
Table II. |
| B. | “Claims Charge” shall be a designated amount determined by Company based on unallocated loss
adjustment expense for the current Profit Sharing Year. |
| C. | “Combined Ratio” shall mean the ratio of Expense Total to Eligible Earned Premium. |
| D. | “Commissions Incurred” shall include the direct commissions and policy fees (if included in
Eligible Earned Premium) incurred by Company for the Profit Sharing Year, relating to Eligible
Earned Premium. Additionally, Company shall add to such total any amounts or expenses of
Partner Agent which Company agrees to reimburse, assume, or share. |
| E. | “Dividends Incurred” shall include all dividends incurred (paid plus an estimate of accrued
but not paid) for the Profit Sharing Year by Company. |
| F. | “Eligible Earned Premium” shall mean direct premium earned for Profit Sharing Year less
earned premium ceded (less ceding commission earned) for reinsurance. |
| G. | “Eligible Written Premium” shall mean direct premium written for Profit Sharing Year. |
| H. | “Expense Total” shall mean the sum of the following: Losses and ALAE Incurred for Profit
Sharing Year; TPA Claims Fee for Profit Sharing Year; Claims Charge for Profit Sharing Year;
IBNR Charge for Profit Sharing Year; Commissions Incurred for Profit Sharing Year; Taxes,
Licenses and Fees for Profit Sharing Year; Operating Charge; and Dividends Incurred for Profit
Sharing Year. |
| I. | “Final Profit Sharing Quarter” shall mean the Profit Sharing Quarter in which this Agreement
is terminated. |
| J. | “Final Profit Sharing Year” shall mean the Profit Sharing Year in which this Agreement is
terminated. |
| K. | “IBNR Charge” shall be determined solely by Company and shall include a provision for the
reserve for Losses and ALAE Incurred but not reported during the Profit Sharing Year, which
reserve shall include development on losses and ALAE already reported to Company less losses
for IBNR ceded. |
| L. | “Losses and ALAE Incurred” shall be direct losses and expenses incurred (paid plus case
reserves) less Losses and ALAE Incurred ceded for reinsurance by Company on claims reported
for the Profit Sharing Year relating to Eligible Earned Premium, excluding unallocated loss
adjustment expense, plus any extra contractual or bad faith payments or reserves. |
| M. | “Operating Charge” shall be a designated amount for the current Profit Sharing Year.
Operating Charge shall be determined solely at Company’s discretion and shall be based on the
operating expenses of Company not included in any of the line items described herein. |
| N. | “Payout Factor” shall be calculated according to the following chart for Table I: |
PROFIT SHARING AGREEMENT
PAYOUT FACTORS
| 5 Years | ||||
1st Valuation |
20 | % | ||
2nd Valuation |
40 | % | ||
3rd Valuation |
60 | % | ||
4th Valuation |
80 | % | ||
5th Valuation |
100 | % | ||
5
| O. | “Premium Written Off” shall include any premium due Company which Company has charged off as
uncollectible for the Profit Sharing Year. |
| P. | “Profit Sharing Quarter” shall mean a calendar quarter, with the Initial Profit Sharing
Quarter beginning on January 1, 2007. |
| Q. | “Profit Sharing Year” shall mean January 1 to December 31, except for the initial Profit
Sharing Year which shall be from the Effective Date to December 31. |
| R. | “Taxes, Licenses and Fees” shall include any loss based or premium based assessments and any
expenses relating thereto, and premium taxes, boards, bureaus, and any miscellaneous taxes
including insurance department licenses and fees, relating to Eligible Earned Premium. |
| S. | “TPA Claims Fee” shall be third party claims fees incurred by Company on behalf of the
Partner Agent for the current Profit Sharing Year. |
| T. | “Valuation Date” shall mean June 30 of each year for each Profit Sharing Year and sixty (60)
days following each Profit Sharing Quarter. Except as otherwise set forth below, Company shall
continue providing calculations for each Profit Sharing Year through the June 30 of each
successive year following termination of this Agreement, the Final Profit Sharing Year, or
until the parties mutually agree in writing to close the calculations for a particular Profit
Sharing Year or Profit Sharing Years. |
6
Timing of Calculation of Profit Sharing Due
| A. | If Partner Agent meets the Minimum Eligible Written Premium requirements for profit sharing,
Company shall calculate Profit Sharing Due to Partner Agent for the applicable profit sharing
period based on Company’s records. Such calculation shall be provided to Partner Agent sixty
(60) days after each the Valuation Date for each Profit Sharing Year. |
| B. | Each Annual Profit Sharing calculation will include a separate re-calculation of each prior
Profit Sharing Year. Re-calculations for each prior Profit Sharing Year will be as of the
current Valuation Date, and will be made utilizing the formula set forth in Table I. Each
Profit Sharing Quarter calculation will be cumulatively adjusted for Profit to be Shared
calculated on Table II for prior Profit Sharing Quarters. |
| C. | Provided that all premium or other amounts due Company shall have been received by Company,
within sixty (60) days after completion of the calculation of Profit Sharing Due, Company
shall pay the amount of Profit Sharing Due to Partner Agent for the applicable profit sharing
period. |
7
Term and Termination
These profit sharing schedules will terminate upon the effective date of termination of this
Agreement. The Final Profit Sharing Year and Final Profit Sharing Quarter under this Agreement
will be the Profit Sharing Periods ending as of the effective date of termination.
In the event this Agreement is terminated prior to the fifth anniversary of the Effective Date by
the Partner Agent, Company shall provide no further Profit Sharing calculations. In the event that
this Agreement is terminated prior to the fifth anniversary of the Effective Date by Company in
accordance with Section VIII (D), Company shall provide no further Profit Sharing calculations.
General
No charge, offset, credit, or deduction for any Profit Sharing which is or may be due Partner Agent
shall be made or claimed by Partner Agent in accounts submitted to Company under this Agreement or
any other agreement. Profit Sharing Due shall be payable only by Company’s check. Company may
combine or offset any amount owed to Partner Agent by Company hereunder against any amount owed to
Company by Partner Agent under any other agreement between the parties.
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