EXHIBIT 10.92
EXECUTION COPY
AFS - MEGA
VENDOR AGREEMENT
This agreement ("Agreement") is made and entered into effective as of
January 1, 2005 by and between The MEGA Life and Health Insurance Company, an
Oklahoma domiciled life and health insurance company ("CARRIER"), and the
Americans for Financial Security, Inc., a non-profit corporation organized under
the laws of the District of Columbia ("AFS").
WHEREAS, AFS is a member organization that provides or makes available to
its members a variety of services and benefits, including health insurance
products and other insurance related products;
WHEREAS, CARRIER is in the business of selling life and health insurance
and other insurance related products;
WHEREAS, CARRIER currently has association group insurance policies
("Association Group Policies") in force with the Multiple Association Insurance
Trust, an Alabama trust (the "Trust"), pursuant to which certificates of
insurance have been and will be issued to members of AFS. CARRIER has also
issued individual insurance policies ("Individual Policies") to members of AFS
in states that do not authorize the marketing and sale of "association group"
policies;
WHEREAS, the Parties entered into that certain Agreement dated February
26, 1999 (the "1999 Agreement") setting forth the terms under which AFS made
available to its members insurance products and other health related products of
CARRIER; and
WHEREAS, the Parties desire to amend, revise and restate in its entirety
the 1999 Agreement defining the relationship between AFS and CARRIER;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the receipt and sufficiency of which is
acknowledged by all of the Parties hereto, AFS and CARRIER hereby agree as
follows:
1. VENDOR RELATIONSHIP. AFS agrees that, during the Term hereof and upon the
terms and conditions contained herein, it will make available to members of AFS
such Association Group Policies, Individual Polices and other insurance related
products (collectively, the "Products") offered by CARRIER as the Parties may
agree from time to time. CARRIER shall be solely responsible for designing the
Products and for establishing the prices to be charged for such Products,
subject to consultation with AFS. AFS shall be solely responsible for
determining which Products of CARRIER will be made available through AFS to its
members. AFS will make such Products available to its members through its
communications to members and prospective members, through its catalog of
benefits, through newspaper, television and other advertisements and/or through
other means selected by AFS. Nothing contained herein and no performance by AFS
of its obligations hereunder shall be deemed to constitute an endorsement by AFS
of CARRIER or of the Products, and AFS assumes no financial responsibility for
the profitability of any Products sold by CARRIER to members of AFS.
2. DEFINITIONS. For purposes of this Agreement, the following terms shall have
the following meanings:
(a) Administrative Expense means, with respect to any period, costs
incurred by CARRIER for policy issuance and policy maintenance during such
period, but excluding the cost of investigating and paying claims.
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(b) Collected Premium means, with respect to any period, the
insurance premiums actually received in cash by CARRIER in such period.
(c) Governmental Authority means any nation or government, any state
or political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
(d) Health Policies means individual and association group health
insurance policies (but excluding ancillary products) issued by CARRIER,
which are the principal Products that CARRIER will sell to members of AFS.
(e) Marketing Expense means, with respect to any period, the
insurance commissions paid to outside insurance agents during such period,
plus any out-of-pocket marketing costs incurred in such period by CARRIER
for selling and servicing the Health Policies to members.
(f) Person means any individual, corporation, limited liability
company, business trust, association, company, partnership, joint venture,
Governmental Authority, or other entity.
(g) Term shall have the meaning set forth in Section 24 hereof.
3. LIMITATION ON HEALTH POLICIES MARKETING EXPENSE AND ADMINISTRATIVE EXPENSE.
As partial consideration for AFS's agreement to make the Products available to
its members, CARRIER agrees as follows:
(a) unless otherwise agreed to by the Parties, Marketing Expense
with respect to Health Policies shall not exceed in any calendar year the
following amounts (expressed as a percentage of Collected Premiums in such
calendar year): (i) 44.5% of first year Collected Premiums, (ii) 30% of
second year Collected Premiums and (iii) 15% of all Collected Premiums
after the second policy year; and
(b) unless otherwise agreed to by the Parties, Administrative
Expense in any calendar year with respect to Health Policies shall not
exceed 10% of Collected Premiums in such calendar year.
4. CARRIER'S REPORTS.
(a). Annual Reports. Except for the reports provided pursuant to Section
4(a)(i), within ninety (90) days after the end of each calendar year during the
Term hereof, CARRIER shall submit written reports to AFS setting forth the
following information:
(i) Financial Status of CARRIER Report, including CARRIER's most
recent annual audited statutory financial statements filed with the state
insurance departments and CARRIER's current ratings with any rating
agencies, which reports shall be submitted to AFS on or before June 15 of
each year for the most recent calendar year.
(ii) Health Insurance in Force Report, including, with respect to
members of AFS, the number of policies in force and the amount of Earned
Premiums thereon for the most recent calendar year.
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(iii) Claims Report, which shall be substantially in the form, and
contain substantially the information, as set forth in Schedule 4(a)(iii)
hereto.
(iv) Complaints Report, including the number of complaints received
regarding claims handling and regarding agent conduct, the source of such
complaints (department of insurance, members of AFS or other) and the
number of claims disposed of during the most recent calendar year on
Health Policies issued by CARRIER.
(v) Litigation Report. The number of legal actions brought against
CARRIER with respect to any Products sold to members of AFS, the number of
such actions disposed of during the most recent calendar year and a brief
description of any material litigation pending at year-end.
(vi) Certificate of Compliance, containing the calculation of
CARRIER's compliance with the limitation on Marketing Expense and the
limitation on Administrative Expense for the most recent calendar year
and, if CARRIER did not comply with any of such limitations, CARRIER's
plan for curing such non-compliance.
(b) Quarterly Reports. If requested by AFS, within sixty (60) days
following the end of each calendar quarter during the Term hereof (other than
the fourth quarter of each year), CARRIER shall provide to AFS unaudited
statutory financial statements of CARRIER as filed with the Oklahoma state
insurance department, and a Health Insurance in Force Report, as described in
Section 4 (ii) above, in each case as of the end of and for such calendar
quarter.
(c) Other Reports. CARRIER shall also provide such other reports as may
reasonably be requested by AFS during the Term hereof.
5. NOTICE OF RATE INCREASES. CARRIER shall provide to AFS not less than forty
five (45) days' advance written notice of any proposed rate increases for the
Health Policies, such notice to include a statement that such premium rate
increase is deemed necessary based upon the analysis of the actuarial department
of CARRIER. AFS shall have the right to provide to CARRIER input with respect to
proposed rate decisions, and CARRIER agrees to share claim information and
experience with AFS to permit AFS to provide such input. CARRIER agrees to
consider recommendations by AFS and to provide its rationale to AFS for
decisions regarding rate increases that are contrary to AFS's recommendations.
Notwithstanding the foregoing, CARRIER shall at all times retain the right to
determine in its sole and absolute discretion the amount and timing of any rate
increase on Health Policies.
6. MUTUAL DISCLOSURES. Each of CARRIER and AFS agrees that it will promptly
notify the other Party of any lawsuits, complaints or notices of investigations
that it receives which will or may involve the other Party.
7. CONFIDENTIALITY. Each of the Parties recognizes that in the course of
exercising its rights and performing its obligations under this Agreement it
will come into possession of confidential or proprietary information of the
other Party or of customers of the other Party ("Confidential Information").
Each Party agrees that it will not disclose to anyone not a Party to this
Agreement any Confidential Information of the other Party or its customers and
will not use any such Confidential Information except to the extent necessary to
carry out its obligations hereunder. Each Party agrees to comply with the
confidentiality requirements imposed on it by state and Federal law, including
the Health Insurance Portability and Accountability Act of 1996 ("HIPPA").
Confidential Information does not include information which (i) is or becomes
generally available to the public other than pursuant to a violation of
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this Agreement, (ii) was available to the Parties on a non-confidential basis
prior to its disclosure by the other Party or its customer to such Party or
(iii) became available to a Party on a non-confidential basis from a third party
who was not bound by a confidentiality agreement with respect to such
information.
8. REPRESENTATIONS AND WARRANTIES.
(a) CARRIER hereby represents and warrants to AFS as follows:
(i) CARRIER is a corporation duly organized, validly existing and in
good standing under the laws of the State of Oklahoma and has all
necessary corporate power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby and to perform its
obligations hereunder.
(ii) All corporate and other actions or proceedings required to be
taken by or on the part of CARRIER to authorize and permit the execution
and delivery by it of this Agreement, the performance by it of its
obligations hereunder, and the consummation by it of the transactions
contemplated herein and therein, have been duly and properly taken.
(iii) This Agreement constitutes the legal, valid and binding
obligation of CARRIER, enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in
effect which affect the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies.
(iv) CARRIER is duly licensed and has authority to issue
"association group" health insurance policies and certificates, individual
policies of health insurance and multiple employer trust policies of
health insurance to insureds in each of the states in which CARRIER is
currently issuing such policies, and CARRIER will obtain and retain all
licenses necessary to conduct CARRIER's business during the Term hereof.
(v) No authorization, approval, or consent of, and no filing or
registration with, any Governmental Authority or third party is or will be
necessary for the execution, delivery of this Agreement, or performance by
CARRIER or for the validity or enforceability thereof, except for such
approvals or consents which have been obtained or made.
(b) AFS hereby represents and warrants to CARRIER as follows:
(i) AFS is a non-profit corporation duly organized, validly existing
and in good standing under the Texas Non-profit Corporation Act and has
all necessary corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby and to perform its
obligations hereunder.
(ii) All corporate and other actions or proceedings required to be
taken by or on the part of AFS to authorize and permit the execution and
delivery by it of this Agreement, the performance by it of its respective
obligations hereunder, and the consummation by it of the transactions
contemplated herein and therein, have been duly and properly taken.
(iii) This Agreement constitutes the legal, valid and binding
obligation of AFS, enforceable against it in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
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affect the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies.
(iv) No authorization, approval, or consent of, and no filing or
registration with, any Governmental Authority or third party is or will be
necessary for the execution, delivery of this Agreement, or performance by
AFS or for the validity or enforceability thereof, except for such
approvals or consents which have been obtained or made.
9. INDEMNIFICATION.
(a) Indemnification by CARRIER. CARRIER agrees to indemnify and hold
harmless AFS and each of AFS's officers, directors, employees and agents
(collectively, an "AFS Indemnified Party") from and against any and all losses,
damages (including, without limitation, actual damages, compensatory damages,
punitive damages and extra-contractual damages), liabilities, penalties,
regulatory fines, costs and expenses (including, without limitation, attorneys'
fees, investigation costs and all other reasonable costs associated with the
defense thereof) (collectively, "Losses"), as incurred, arising out of or
relating to the following:
(i) any breach of, or any inaccuracy in, any representation or
warranty made by CARRIER in this Agreement;
(ii) any breach of, or failure by, CARRIER to perform any covenant
or obligation of CARRIER set out in this Agreement; and
(iii) any other Loss resulting from, or arising out of any acts,
occurrences or matters caused by CARRIER, including but not limited to
CARRIER's UGA Association Field Services division ("UGA") and the
independent insurance agents under contract with UGA, provided that such
Loss was not caused in whole or in material part by the act or omission of
an AFS Indemnified Party.
(b) Indemnification by AFS. AFS agrees to indemnify and hold harmless
CARRIER and each of CARRIER's officers, directors, employees and agents
(collectively, a "CARRIER Indemnified Party") from and against any and all
Losses, as incurred, arising out of or relating to the following:
(i) any breach of, or any inaccuracy in, any representation or
warranty made by AFS in this Agreement;
(ii) any breach of, or failure by, AFS to perform any covenant or
obligation set out in this Agreement; and
(iii) any other Loss resulting from, or arising out of any acts,
occurrences or matters caused by AFS, provided that such Loss was not
caused in whole or in material part by the act or omission of a CARRIER
Indemnified Party.
(c) Conduct of Indemnification Proceedings.
(i) If any proceeding shall be brought or asserted against any
person and/or entity entitled to indemnity hereunder (an "Indemnified
Party"), such Indemnified Party promptly shall notify the person from whom
indemnity is sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of all fees and expenses
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incurred in connection with the defense thereof; provided, however, that
the failure of any Indemnified Party to give such notice shall not relieve
the Indemnifying Party of its obligations or liabilities pursuant to this
Agreement, except to the extent (and only to the extent) that it shall be
finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
(ii) An Indemnified Party shall have the right to employ separate
counsel in any such proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed
in writing to pay such fees and expenses; or (2) the Indemnifying Party
shall have failed promptly to assume the defense of such Proceeding and to
employ counsel reasonably satisfactory to such Indemnified Party in any
such Proceeding; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and
the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying
Party in writing that it elects to employ separate counsel at the expense
of the Indemnifying Party, the Indemnifying Party shall not have the right
to assume the defense thereof and such counsel shall be at the reasonable
expense of the Indemnifying Party). The Indemnifying Party shall not be
liable for any settlement of any such proceeding effected without its
written consent, which consent shall not be unreasonably withheld, delayed
or conditioned. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter of such
proceeding.
(iii) All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten (10) business days of a detailed written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the Indemnifying Party may require such
Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such Indemnified Party
is not entitled to indemnification hereunder).
10. RELATIONSHIP OF THE PARTIES. The relationship of the Parties created hereby
is that of independent contractors, and each Party has and retains the right to
full control over the performance of its obligations hereunder. Neither Party is
an employee, joint venturer or partner of the other Party, and neither Party
shall have any right or authority to create or assume any obligation of any kind
on behalf of the other Party.
11. AUDIT RIGHTS. AFS, itself or by its agents, shall have the right, on
reasonable written notice, during regular business hours and at AFS's expense,
to review and audit the books and records of CARRIER relating to the obligations
of CARRIER hereunder. AFS shall reimburse CARRIER for expenses incurred by
CARRIER in assisting AFS in such review and audit. The provisions of this
Section 11 shall survive for a period of two (2) years after the termination or
expiration of this Agreement.
12. FORCE MAJEURE. Neither Party shall be held responsible for any delay or
failure in performance of any part of this Agreement to the extent such delay or
failure is caused by fire, flood, explosion, war,
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terrorist act, strike, embargo, government requirement, civil or military
authority, act of God, act or omission of carriers or other similar causes
beyond its control and without the fault or negligence of the delayed or
non-performing Party or its subcontractors ("Force Majeure Conditions"). If any
Force Majeure Condition occurs, the Party delayed or unable to perform shall
give immediate notice to the other Party, stating the nature of the Force
Majeure Condition and any action being taken to avoid or minimize its effect and
its estimate of how long such delay or failure will continue. If the Force
Majeure Condition continues for a period of at least one hundred eighty (180)
days, either Party may terminate this Agreement by delivery of written notice to
the other Party.
13. NOTICES. Any notice, request, instruction or other communication to be given
hereunder by a Party hereto shall be in writing and shall be deemed to have been
given, (i) when received if given in person or by a messenger or courier
service, (ii) on the date of confirmed transmission if sent by facsimile or
other wire transmission or (iii) three (3) Business Days after being deposited
in the U.S. mail, certified or registered, postage prepaid, addressed as
follows:
If to AFS:
Americans for Financial Security, Inc.
P.O. Box 1469
Hurst, TX 76053-1469
Attention: Art Granda
Facsimile No.: (800) 468-6724
If to CARRIER:
The MEGA Life and Health Insurance Company
9151 Grapevine Highway
North Richland Hills, Texas 76180
Attention: President
Facsimile No.: (817) 255-8380
With a copy to:
UICI
9151 Grapevine Highway
North Richland Hills, Texas 76180
Attention: Executive Vice President and General Counsel
Facsimile No.: (817) 255-5394
or to such other individual or address as a Party hereto may designate for
itself by notice given as herein provided.
14. WAIVERS. The failure of either Party hereto at any time or times to require
performance of any provision hereof shall in no manner affect its right at a
later time to enforce the same or any other provision. No waiver by a Party of
any condition or of any breach of any term, covenant, representation or warranty
contained in this Agreement shall be effective unless in writing, and no waiver
in any one or more instances shall be deemed to be a further or continuing
waiver of any such condition or breach in other instances or a waiver of any
other condition or breach of any other term, covenant, representation or
warranty.
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15. COUNTERPARTS. This Agreement may be executed in counterparts, including by
facsimile signatures, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
16. INTERPRETATION. The headings preceding the text of Sections included in this
Agreement are for convenience only and shall neither be deemed part of this
Agreement nor be given any effect in interpreting this Agreement. The use of the
masculine, feminine or neuter gender herein shall not limit any provision of
this Agreement. The use of the terms "including" or "include" shall in all cases
herein mean "including, without limitation" or "include, without limitation,"
respectively. The Parties have jointly participated in the negotiation and
drafting of this Agreement. In the event of any ambiguity or if a question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by all Parties and no presumption or burden of proof shall arise
favoring any Party by virtue of the authorship of any provisions of this
Agreement.
17. ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns. Notwithstanding the
foregoing, no assignment of any rights or obligations shall be made by either
Party without the written consent of the other Party.
18. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the benefit of
the Parties hereto and no provision of this Agreement shall be deemed to confer
upon other third parties any remedy, claim, liability, cause of action or other
right.
19. FURTHER ASSURANCES. Upon reasonable request of either Party, the other Party
will execute and deliver such other documents as may be required to effectuate
completely the purposes of this Agreement.
20. SEVERABILITY. If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality or enforceability of the other
provisions hereof shall not be affected thereby, and there shall be deemed
substituted for the provision at issue a valid, legal and enforceable provision
as similar as possible to the provision at issue.
21. REMEDIES CUMULATIVE. The remedies provided in this Agreement shall be
cumulative and shall not preclude the assertion or exercise of any other rights
or remedies available by law, in equity or otherwise.
22. ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the entire agreement
and understanding of the Parties with respect to the matters set forth herein
and supersedes any and all prior written or oral discussions, negotiations,
proposals, agreements, arrangements and understandings among the Parties
relating thereto except as may be set forth in a contemporaneous or subsequent
written agreement signed by the Parties and except that nothing contained herein
shall affect any rights of either Party under the 1996 Agreement accrued as of
the date hereof. The provisions of this Agreement may not be modified, changed,
amended or rescinded in any manner except by a written instrument signed by an
authorized representative of all of the Parties hereto.
23. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without reference to its choice
of law rules. Each party to this Agreement irrevocably agrees that any legal
action or proceeding under, arising out of or in any matter relating to this
Agreement shall be brought in state or federal court in Tarrant County, Texas
and each party hereby assents and submits to the personal jurisdiction by such
courts in any such action or proceeding.
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24. TERM; TERMINATION.
(a) The term (the "Term") of this Agreement shall commence on the date
hereof and shall continue until December 31, 2007, and shall automatically be
extended from year to year thereafter unless either Party gives the other Party
not less than twelve (12) months' written notice that the Term will not be
extended. During the twelve (12)-month termination period, the provisions of
this Agreement shall continue in full force and effect.
(b) This Agreement may be terminated by either Party hereto (the
"Terminating Party") upon not less than forty-five (45) days' prior written
notice to the other Party (the "Defaulting Party") upon the occurrence of any of
the following events:
(i) Any representation, warranty or certification made or deemed
made by the Defaulting Party (or any of its respective officers) hereunder
or in any certificate, report, notice, or financial statement furnished at
any time in connection with the Agreement shall be false, misleading, or
erroneous in any material respect when made or deemed to have been made.
(ii) The Defaulting Party shall fail to perform, observe, or comply
with any material covenant, agreement, or term contained in the Agreement
and such failure shall continue for a period of thirty (30) days after the
date the Terminating Party provides the Defaulting Party with notice
thereof.
(iii) The Defaulting Party shall admit in writing its inability to,
or be generally unable to, pay its debts as such debts become due.
(iv) The Defaulting Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, rehabilitator,
conservator, custodian, trustee, liquidator or the like of itself or of
all or a substantial part of its property, (ii) make a general assignment
for the benefit of its creditors, (iii) commence a voluntary case under
the United States Bankruptcy Code (as now or hereafter in effect, the
"Bankruptcy Code"), (iv) institute any proceeding or file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution, winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely
and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code or under any
other such law, or (vi) take any corporate or other action for the purpose
of effecting any of the foregoing.
(v) A proceeding or case shall be commenced, without the
application, approval or consent of the Defaulting Party, in any court of
competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment
of the Defaulting Party's debts, (ii) the appointment of a receiver,
rehabilitator, conservator, custodian, trustee, liquidator or the like of
such entity or of all or any substantial part of its property, or (iii)
similar relief in respect of the Defaulting Party under any law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of sixty (60) or more days; or an order for relief against the
Defaulting Party shall be entered in an involuntary case under the
Bankruptcy Code.
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25. TERMINATION OF 1999 AGREEMENT. Effective upon the date hereof, the 1999
Agreement is hereby terminated and rendered of no further force or effect;
provided, however, that nothing contained herein shall affect any rights of
either Party under the 1999 Agreement accrued as of the date hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
and delivered as of the date first above written.
AMERICANS FOR FINANCIAL SECURITY, INC.
By: _______________________________________
Print Name: _______________________________
Title: ____________________________________
THE MEGA LIFE AND HEALTH INSURANCE COMPANY
By: _______________________________________
Print Name: _______________________________
Title: ____________________________________
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