Exhibit 10.1
ADMINISTRATIVE AGREEMENT
THIS ADMINISTRATIVE AGREEMENT ("Agreement") is entered into as of the 9th day
of March, 2001, by and between, W & R Insurance Agency, Inc., a licensed
insurance agency, on its own behalf and on behalf of its affiliated corporate
insurance agencies ("INSURANCE AGENCY") and Xxxxxxx & Xxxx, Inc., a
registered Broker-Dealer, ("W & R") (INSURANCE AGENCY and W & R sometimes
referred to herein as "AGENCY") with offices at 0000 Xxxxx Xxxxxx, Xxxxxxx
Xxxxxxx, Xxxxxx 00000 and BISYS Insurance Services, Inc. and its registered
wholesale Broker-Dealer, Underwriters Equity Corp. (collectively "BISYS"),
with offices at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
WHEREAS, INSURANCE AGENCY is an insurance agency that markets certain products
and services to CUSTOMERS through AGENTS; and
WHEREAS, BISYS is in the business of making available insurance products and
providing administrative services to organizations that market such insurance
products and services; and
WHEREAS, BISYS is a general agent for the CARRIERS under various contracts now
in existence and has the authority to appoint AGENTS to sell the insurance
products of such CARRIERS; and
WHEREAS, AGENCY wishes BISYS to make available PRODUCTS, and provide SERVICES
to support the sales of such PRODUCTS by AGENTS; and
WHEREAS, BISYS will earn compensation from sales of PRODUCTS through this
Agreement and is willing to pay a stipulated portion of such compensation to
AGENCY on business sold by AGENTS.
NOW THEREFORE, in consideration of the foregoing and the mutual provisions set
forth below, for good and valuable consideration, and intending to be legally
bound hereby, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1 AGENTS mean insurance agent duly licensed by INSURANCE AGENCY or affiliates
of AGENCY and/or registered representatives of W & R who are registered and
qualified as necessary with the NASD and any appropriate state authority
and that are authorized to conduct the securities brokerage activities
contemplated by this Agreement.
1.2 AGENCY INDEMNIFIED PERSON shall have the meaning specified in Section 6.1.
1.3 BISYS INDEMNIFIED PERSON shall have the meaning specified in Section 6.2.
1.4 CARRIER means the insurance companies with which BISYS has a general
agency, marketing agreement or selling agreement in effect as listed in
EXHIBIT A. Any changes, additions or deletions to PRODUCTS unilaterally
made by CARRIERS shall automatically modify Attachment 1 to EXHIBIT A.
1.5 CUSTOMERS mean individuals or businesses that procure services or products
from AGENCY or affiliates of AGENCY.
1.6 PRODUCTS mean the disability insurance, life insurance, and, subject to
the last two sentences of this Section 1.6, the variable life insurance
products listed in Attachment 1 to EXHIBIT A, as selected by AGENCY, as
such Exhibit is amended from time to time. Any changes, additions or
deletions to PRODUCTS unilaterally made by CARRIERS shall automatically
modify attachment 1 to EXHIBIT A. BISYS acknowledges that AGENCY is a party
to certain agreements with
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Nationwide Financial and its affiliates ("Nationwide"), pursuant to which
AGENCY has granted Nationwide an exclusive right to sell certain variable
life insurance products. BISYS further acknowledges and agrees that the
term PRODUCTS in this Agreement, when referring to variable life insurance
products, shall be limited to:
a. variable life insurance policies that are being sold due to an
impaired risk; provided that such policies may only be sold through
BISYS after Nationwide has been given the opportunity to sell such
variable life insurance policies and has refused or declined to do so,
or
b. variable life insurance policies that are being sold as a result of a
contractually guaranteed right of conversion without evidence of
insurability from a term life insurance policy.
1.7 SERVICES shall mean those administrative services set forth in Section 2.3.
SECTION 2. COVENANTS OF BISYS.
2.1 BISYS shall make available to AGENCY the PRODUCTS listed in EXHIBIT A.
2.2 BISYS will compensate AGENCY for PRODUCTS sold (i.e., insurance coverage
placed) to CUSTOMERS in accordance with the provisions set forth in EXHIBIT
B.
a. AGENCY shall be vested in and entitled to their portion of renewal
commissions for insurance coverage issued by CARRIERS and paid to
BISYS.
b. All commissions due to AGENCY are to be paid to either Insurance
Agency or W & R, whichever is applicable. In the event that a carrier
pays a commission directly to the AGENTS, all commissions payable to
AGENCY will be reduced by the amount of commissions paid directly to
the AGENCY by such CARRIER.
c. In the event that the CARRIER contracts or any applicable laws
prohibit the compensation splits in this Agreement, this Agreement
shall be immediately amended, without further action.
d. In the event that CARRIERS unilaterally modify the commissions payable
to BISYS, the commissions in EXHIBIT B shall be immediately amended
without further action.
e. EXHIBIT B may be reviewed annually. BISYS reserves the right to
modify the compensation. If AGENCY does not agree to the
compensation modification, AGENCY may terminate the Agreement with
ninety (90) days notice to BISYS.
2.3 BISYS will provide the following administrative services to AGENCY during
the term of this Agreement at no charge to Agency:
a. preparation of standard management information systems (MIS) reports
relating to the sales of PRODUCTS by AGENTS;
b. all services required to process applications, including for example
but not limited to:
(1) all contracting and appointment functions for AGENTS,
(2) initial contracting and appointment functions for AGENCY,
(3) all new business functions,
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(4) all underwriting functions,
(5) all policy issue functions,
(6) all compensation distribution functions, and
(7) all policy holder service functions;
c. role as liaison between AGENCY and CARRIERS;
d. full and free access to download illustration software from the BISYS
web site by AGENCY or by AGENTS via secured pass code;
e. sales supplies (i.e., marketing and promotional material and
application forms provided by CARRIERS) for use by AGENCY and AGENTS;
f. secure electronic access to case status via the BISYS web site;
g. initial product training of AGENCY and AGENTS as AGENCY shall approve;
h. impaired risk guidelines for informal inquiries, which are:
(1) For cases less than $500,000 of face amount, BISYS will accept
phone calls, emails, or faxed inquiries only and will not accept
trial applications, set up files, or order APSs. After BISYS
reviews the details of the client's medical factors and
background, BISYS will advise AGENT which company is likely to
deliver the best results based on the particular impairment(s).
AGENT can then proceed by submitting a formal application for a
specific carrier. If AGENT does not have sufficient information
for BISYS to suggest a course of action, BISYS will indicate what
additional information AGENT will need to obtain. If, in BISYS'
judgment, an APS is needed to properly evaluate the case, BISYS
will accept AGENT-obtained APS information.
(2) For cases of $500,000 to $1,000,000 in face amount, BISYS will
accept phone calls, emails or faxed inquiries only and will not
accept trial applications. To assist the AGENT in developing this
business, internet-based questionnaires, in addition to other
comprehensive impaired risk information found at xxx.xxxx.xxx,
will guide the AGENT in the collection of data sufficient for
BISYS to advise on the case. BISYS will try in all cases to make
decisions based on the data that the AGENT has collected. If APS
information is needed, BISYS will ask the AGENT to supply this
information.
(3) For cases greater than $1,000,000 in face amount, BISYS will
accept the submission of informal applications. BISYS will
request APSs in those cases where it is necessary in its judgment
to render a viable offer, making every effort to evaluate a case
without the need for an APS. BISYS encourages the AGENT to print
and complete the online INFORMAL INQUIRY found at xxx.xxxx.xxx to
expedite the review of cases, and will reimburse the AGENT for
APS costs if the case is formalized and placed through BISYS.
2.4 BISYS will provide to AGENCY an estimate of costs associated with
performing administrative services beyond the scope of Section 2.3.
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2.5 BISYS shall maintain professional liability insurance against claims for
damages based on alleged or actual errors or omissions, with an initial
combined single limit of not less than one million dollars ($1,000,000).
2.6 BISYS shall not use AGENCY's name or logo for any marketing or promotional
purposes without the prior written approval of AGENCY.
2.7 BISYS shall not assign, pledge, alienate, or otherwise encumber any amounts
payable by BISYS to AGENCY under this Agreement, unless, under the
CARRIER's contract BISYS is charged back a percentage of AGENCY's or
AGENT's compensation, in which event BISYS will net the charge-back against
AGENCY's compensation. The charge-back invoice shall include the amount
due, the policy number, and the CARRIER identification.
SECTION 3. REPRESENTATION AND WARRANTIES OF BISYS.
BISYS represents and warrants to AGENCY that:
3.1 BISYS is corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and qualified to do
business in each jurisdiction in which it conducts business. BISYS is
required to be so qualified because the failure to be so qualified would
have a material adverse effect on the financial condition, operating
results, or business of BISYS. BISYS has all corporate powers, licenses,
and regulatory approvals necessary to engage in the business which relates
to the subject matter of this Agreement except where the failure to have
any such powers, licenses or regulatory approvals would not have a material
effect on the financial condition, operating results or business of BISYS,
or its ability to perform under this Agreement.
3.2 The execution and delivery of this Agreement by BISYS has been duly
authorized by all necessary corporate action. Neither the execution of this
Agreement nor the fulfillment of its obligations by BISYS hereunder will
cause BISYS, to its knowledge, to violate any federal or state statute, any
rule or regulation of any state or federal regulatory agency to which BISYS
may be subject, resulting in a material adverse effect on the financial
condition, operating results or business of BISYS, or its ability to
perform under this Agreement.
3.3 There is no judicial, administrative or regulatory proceeding,
investigation or administrative charge or complaint pending or, within the
knowledge or belief of BISYS, threatened, which could result in any
material adverse change in the financial condition, operating results or
business of BISYS or which would have a material adverse effect on the
ability of BISYS to perform its obligations under this Agreement.
SECTION 4. COVENANTS OF INSURANCE AGENCY AND W & R.
4.1 AGENCY and affiliates of AGENCY shall have the right to continue in effect
any existing agreement with insurance carriers entered into prior to the
effective date of this Agreement to obtain any disability insurance, life
insurance, and/or variable life insurance products for the remaining term
of such agreements, including renewals or extensions of such agreements.
4.2 After the effective date of this Agreement, and at all times during its
term, AGENCY agrees to provide BISYS with an exclusive right to obtain
access for the AGENCY to:
a. the disability insurance and life insurance products made available to
AGENCY pursuant to such pre-existing agreements upon their expiration
or termination; and
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b. any new disability insurance and life insurance products the AGENCY is
considering or intends to offer to CUSTOMERS.
If BISYS cannot provide access to such disability insurance and life
insurance products, AGENCY shall have the right to proceed to access such
products directly from the carrier but not through another general agency
that is unaffiliated with a carrier.
4.3 AGENCY at all times shall cause each AGENT to conduct its activities
pursuant to this Agreement in accordance with all applicable state and
federal laws and regulations including without limitation, applicable state
and federal insurance laws, regulations and interpretive positions
(collectively, "INSURANCE REGULATIONS") governing the sale of PRODUCTS by
AGENTS and all aspects of the business of insurance.
Without limiting the generality of Section 4.3, AGENCY shall take
appropriate measures and establish and implement procedures, as follows:
a. AGENCY at all times shall cause each AGENT to hold the appropriate
insurance license(s) in the state of solicitation and the state where
the application is signed prior to submitting an application for
insurance to BISYS. Neither BISYS nor CARRIERS provide first-time
licensing services to AGENTS in states of sale, whether resident or
non-resident.
b. AGENCY at all times shall cause each AGENT to obtain
pre-contracting/appointment with the CARRIER prior to soliciting the
sale of a PRODUCT to the consumer if required by the CARRIER and by
the insurance laws of the applicable state.
c. AGENCY at all times shall use its best efforts to cause each AGENT to
refrain from altering, modifying, waiving, or amending any terms,
rates or conditions of any advertisement, brochures, applications,
policies, contracts or other materials provided to the AGENT by BISYS
or any CARRIER.
d. AGENCY at all times shall use its best efforts to cause each AGENT to
refrain from issuing or circulating any advertising material, circular
or pamphlet relating to any insurance product unless the same shall
have been authorized and approved in writing by BISYS or the CARRIER.
4.4 AGENCY shall maintain professional liability insurance against claims for
damages based on alleged or actual errors or omissions, with an initial
combined single limit of not less than one million dollars ($1,000,000).
4.5 AGENCY shall require AGENT to maintain professional liability insurance
against claims for damages based on alleged or actual errors or omissions,
with an initial combined single limit of not less than one million dollars
($1,000,000).
4.6 AGENCY shall prohibit AGENTS with a felony conviction for a crime of
dishonesty or breach of trust to work in the insurance industry, unless
their state insurance commissioner grants written permission. AGENCY
certifies that, to the best of its knowledge, none of its AGENTS have ever
been convicted of a state or federal felony involving dishonesty or breach
of trust; or, if so, that the AGENTS have received written authorization
from their state insurance commissioner specifically referencing Section
1033 of the Violent Crime Control and Law Enforcement Act of 1994,
subsection (e)(2) granting permission to work in the insurance industry.
4.7 AGENCY shall not use BISYS' name or logo for any marketing or promotional
purposes without the prior written approval of BISYS, which shall not be
unreasonably withheld or delayed.
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4.8 AGENCY shall not use the CARRIER's name or logo for any marketing or
promotional purposes without the prior written approval of BISYS and
CARRIER, which BISYS shall not unreasonably withhold or delay.
4.9 Intentionally omitted.
4.10 AGENCY shall be responsible for costs associated with performance of
administrative services beyond the scope of Section 2.3.
4.11 W & R at all times shall maintain its Broker-Dealer license under the 1934
Act, be a member in good standing of the NASD and be duly licensed in all
states and jurisdictions where required to perform pursuant to this
Agreement.
4.12 W & R shall fully comply with the requirements of the 1934 Act and all
other applicable federal or state laws and with the rules of the NASD.
4.13 W & R shall establish such rules and procedures as may be necessary to
cause diligent supervision of the securities activities of the registered
representatives including ensuring compliance with the prospectus delivery
requirements of the 1933 Act.
4.14 W & R shall train and supervise its registered representatives to ensure
that purchase of a PRODUCT is not recommended to a CUSTOMER in the absence
of reasonable grounds to believe the purchase of the PRODUCT is suitable
for that CUSTOMER. While not limited to the following, a determination of
suitability shall be based on information furnished to a registered
representative after reasonable inquiry of such CUSTOMER, concerning the
CUSTOMER's other security holdings, financial situation, financial
objectives and needs.
4.15 W & R shall ensure that any offer of a PRODUCT, which constitutes a sale of
a security made by a registered representative will be made by means of a
currently effective prospectus.
4.16 W & R shall not permit an offer of a PRODUCT, which constitutes a sale of a
security to be made by any person that is not a registered representative.
4.17 W & R shall have full responsibility for the training and supervision of
all persons associated with it who are engaged directly or indirectly in
the offer or sale of PRODUCTS. All such persons shall be registered
representatives of and shall be subject to its control with respect to
their securities activities.
SECTION 5. REPRESENTATION AND WARRANTIES OF AGENCY.
AGENCY represents and warrants to BISYS that:
5.1 AGENCY is duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and is qualified to do
business in each jurisdiction in which it conducts business and is required
to be so qualified where failure to be so qualified would have a material
adverse effect on the financial condition, operating results or business of
each AGENCY. AGENCY has all corporate powers, licenses, and regulatory
approvals necessary to engage in the business which relates to the subject
matter of this Agreement except where the failure to have any such powers,
licenses or regulatory approvals would not have a material adverse effect
on the financial condition, operating results or business of AGENCY, or its
ability to perform under this Agreement.
5.2 The execution and delivery of this Agreement by AGENCY has been duly
authorized by all necessary corporate action. Neither the execution of this
Agreement nor the performance by AGENCY of its obligations hereunder will
cause AGENCY, to the best of its knowledge, to
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violate any federal or state statute, any rule or regulation of any state
or federal regulatory agency pursuant to which AGENCY may be subject which
would result in a material adverse effect on the financial condition,
operating results or business of AGENCY, or its ability to perform under
this Agreement.
5.3 There is no judicial, administrative or regulatory proceeding,
investigation or administrative charge or complaint pending or, within the
knowledge or belief of AGENCY, threatened, which could result in any
material adverse change in the financial condition, operating results or
business of AGENCY or which would have a material adverse effect on the
ability of AGENCY to perform its obligations under this Agreement.
SECTION 6. INDEMNIFICATION.
6.1 BISYS agrees to indemnify AGENCY, its affiliates and their shareholders,
directors, officers, employees and agents (collectively "AGENCY INDEMNIFIED
PERSONS") and to hold each of them harmless against any and all losses,
liabilities, claims, demands, actions, judgments, damages, costs and
expenses, including, but not limited to, reasonable attorneys' fees,
disbursements and other expenses incurred in connection with investigating
any claim and defending any action and any amounts paid in settlement or
compromise (provided that BISYS shall have given its prior written approval
of any settlement or compromise, not to be unreasonably withheld) of an
action to which such AGENCY INDEMNIFIED PERSON is a party based upon,
arising out of, relating to, or in connection with:
a. any breach of the representations, warranties or covenants contained
in Sections 2 or 3, or
b. the negligent performance by BISYS of its responsibilities under this
Agreement, except to the extent that such losses, liabilities,
claims, demands, actions, judgments, damages, costs and expenses are
incurred by the reason of:
(1) the willful misconduct or gross negligence of any AGENCY
INDEMNIFIED PERSON whose duties are directly related to this
Agreement; or
(2) a regulatory or other challenge to the legality of the
contractual relationship between BISYS and AGENCY or the
activities contemplated in this Agreement.
If any event occurs for which indemnification to any AGENCY INDEMNIFIED
PERSON is sought pursuant to this Section 6, such AGENCY INDEMNIFIED PERSON
must provide BISYS with written notice of such event as soon as possible,
but in no event later than thirty (30) days after the earlier of:
c. such time as it has actual knowledge of the occurrence of such event;
or
d. such time as it receives notice that an action has been filed in a
court, or action has been taken by any administrative agency, alleging
the occurrence of an event that may entitle an AGENCY INDEMNIFIED
PERSON to indemnification by BISYS hereunder.
BISYS shall be entitled to participate in such action or proceeding and,
after written notice from BISYS to such AGENCY INDEMNIFIED PERSON, to
assume the defense of such action or proceeding with mutually acceptable
counsel and, with such AGENCY INDEMNIFIED PERSON's consent which shall not
be unreasonably withheld, to compromise or settle such action or
proceeding. Notwithstanding BISYS' election to assume the defense of such
action or proceeding, such AGENCY INDEMNIFIED PERSON shall have the right
to employ separate counsel and to participate in the defense of such action
or proceeding at its own expense.
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6.2 AGENCY agrees to indemnify BISYS, its affiliates and their directors,
officers, employees and agents (collectively "BISYS INDEMNIFIED
PERSONS") and to hold each of them harmless against any and all losses,
liabilities, claims, demands, actions, judgments, damages, costs and
expenses, including, but not limited to, reasonable attorneys' fees,
disbursements and other expenses incurred in connection with
investigating any claim and defending any action and any amounts paid in
settlement or compromise (provided that AGENCY shall have given its
prior written approval of any settlement or compromise, which shall not
be unreasonably withheld) of an action to which such BISYS INDEMNIFIED
PERSON is a party arising out of, relating to, or in connection with:
a. any breach of the representations, warranties or covenants
contained in Sections 4 or 5, or
b. the negligent performance by AGENCY of its responsibilities under
this Agreement, except to the extent that losses, liabilities,
claims, demands, actions, judgments, damages, costs and expenses
are incurred by reason of:
(1) the willful misconduct or gross negligence of any BISYS
INDEMNIFIED PERSON whose duties are directly related to this
Agreement; or
(2) a regulatory or other challenge to the legality of the
contractual relationship between BISYS and AGENCY or the
activities contemplated in this Agreement.
If any event occurs for which indemnification to any BISYS INDEMNIFIED
PERSON is sought pursuant to this Section 6, such BISYS INDEMNIFIED PERSON
must provide AGENCY with written notice of such event as soon as possible,
but in no event later than thirty (30) days after the earlier of:
c. such time as it has actual knowledge of the occurrence of such event;
or
d. such time as it receives notice that an action has been filed in a
court, or action has been taken by any administrative agency, alleging
the occurrence of an event that may entitle a BISYS INDEMNIFIED PERSON
to indemnification by AGENCY hereunder.
AGENCY shall be entitled to participate in such action or proceeding and,
after written notice from AGENCY to such BISYS INDEMNIFIED PERSON, to
assume the defense of such action or proceeding with mutually acceptable
counsel and, with such BISYS INDEMNIFIED PERSON's consent which shall not
be unreasonably withheld, to compromise or settle such action or
proceeding. Notwithstanding AGENCY's election to assume the defense of such
action or proceeding, such BISYS INDEMNIFIED PERSON shall have the right to
employ separate counsel and to participate in the defense of such action or
proceeding at its own expense.
6.3 The obligations of the parties under this Section 6 shall survive the
termination of this Agreement.
SECTION 7. CONFIDENTIALITY.
7.1 In performing its obligations pursuant to this Agreement, each party may
have access to and receive certain information about the other party,
including, but not limited to, marketing philosophy and objectives,
competitive advantages and disadvantages, financial results, technological
developments, names, addresses and telephone numbers of customers (all on a
variety of media including computer tapes and disks) and a variety of other
information and materials that such other party considers confidential
and/or proprietary (collectively "CONFIDENTIAL INFORMATION"). All
CONFIDENTIAL INFORMATION obtained pursuant to this Agreement by either
party, its directors, officers or other employees is, and shall be
considered, confidential and proprietary of the other party. Each of the
parties hereto shall:
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a. protect and preserve the confidential and proprietary nature of all
CONFIDENTIAL INFORMATION;
b. not, without the prior written consent of either party, disclose,
give, sell or otherwise transfer or make available, directly or
indirectly, any CONFIDENTIAL INFORMATION to any third party;
c. not make any records or copies of the CONFIDENTIAL INFORMATION,
except as required by this Agreement, and shall return or destroy
all CONFIDENTIAL INFORMATION and any copies thereof (in whatever
form) immediately upon request; and
d. limit the dissemination of the CONFIDENTIAL INFORMATION within its
own organization to such persons that need to know the CONFIDENTIAL
INFORMATION and restrict its use solely to the purposes set forth
herein.
7.2 For purposes of Section 7.1(b), each party hereby consents to the
disclosure of CONFIDENTIAL INFORMATION to CARRIERS to the extent:
a. necessary or advisable in connection with the processing of
applications for insurance coverage, or
b. upon the request of insurance regulatory authorities which have
jurisdiction over the parties in connection with this Agreement.
7.3 The provisions of this Section 7 shall survive the termination of this
Agreement.
7.4 The restrictions shall not apply to any part of the CONFIDENTIAL
INFORMATION which:
a. was at the time of disclosure or thereafter becomes generally
available to the public other than as a result of a breach of the
receiving party's obligations hereunder; or
b. was at the time of disclosure, as shown by the receiving party's
records, already in the receiving party's possession on a lawful
basis; or
c. is lawfully acquired by the receiving party after the time of the
disclosure through a third party under no obligation of confidence
to the disclosing party; or
d. is required to be disclosed pursuant to legal or regulatory
authority, provided that immediate notice of such requirement is
given to the other party.
SECTION 8. TERM OF AGREEMENT.
Unless terminated earlier pursuant to the terms of this Agreement, the
initial term of this Agreement shall be three (3) years from the date of this
Agreement (the "INITIAL TERM"). This Agreement shall automatically renew
thereafter for successive one-year periods (each a "RENEWAL TERM") unless
notice is received by either party within 60 days of expiration of the
INITIAL TERM or any RENEWAL TERM.
SECTION 9. TERMINATION.
9.1 This Agreement may be terminated without penalty by mutual agreement of
the parties, or for "cause" as defined below.
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9.2 For purposes of this Agreement, "cause" shall mean:
a. willful misfeasance, bad faith, gross negligence or reckless
disregard on the part of the party to be terminated with respect to
its obligations and duties set forth herein;
b. a breach of any material term or obligation under this Agreement
which is not cured within 30 days of written notice to the
breaching party by the non-breaching party;
c. the insolvency or bankruptcy of either party or the inability of
either party generally to pay its debts when due; or
d. the failure of AGENCY or BISYS to maintain adequate licenses to
substantially perform their responsibilities under this Agreement.
9.3 This Agreement may also be terminated without penalty by AGENCY in the
event that that certain Limited Agency Agreement For Qualified Plan
Accounts, by and among W & R, BISYS Brokerage Services, Inc., and BISYS
Plan Services, L.P., has not been executed within thirty (30) days of
the date hereof.
SECTION 10. RESPONSIBILITIES UPON TERMINATION.
10.1 Except as otherwise expressly provided herein, the termination of this
Agreement shall not terminate, affect or impair any rights, obligations
or liabilities of any party hereto that may accrue prior to such
termination or that, under the terms of this Agreement, continue after
such termination. Upon the termination of this Agreement, each party
shall return, or cause to be returned, all property, including but not
limited to CONFIDENTIAL INFORMATION, belonging to the other party
immediately upon request. Copies or reproductions of all jointly owned
property shall be distributed to both parties.
10.2 BISYS shall make its best efforts to facilitate the assignment within
sixty (60) days of the termination date of all commissions that may
become due and owing to AGENCY on insurance coverage placed on
CUSTOMERS pursuant hereto prior to the termination of this Agreement.
10.3 All commissions payable after termination, if not assignable, will be
administered by BISYS and paid to AGENCY pursuant to EXHIBIT A upon a
negotiated service fee for such administration.
SECTION 11. ASSIGNMENT AND TRANSFER; SUBCONTRACTING.
11.1 No party hereto shall assign or otherwise transfer any of its rights or
obligations hereunder, or contract with any third party to perform any
of its responsibilities or obligations relating to this Agreement,
without the prior written consent of the other party, which shall not be
unreasonably withheld or delayed, except that AGENCY and BISYS may
assign any of their respective rights or obligations hereunder to a
parent corporation or a wholly-owned direct or indirect subsidiary of
such parent upon prior notice to the other party and as contemplated
under Section 11.2.
11.2 Prior to any approval of a third party subcontractor, the parties
reserve the right to require such third party subcontractor to execute a
confidentiality agreement in a form acceptable to the party protected.
SECTION 12. REMEDIES; WAIVER.
All remedies of the parties hereto shall be cumulative. No party hereto shall
be deemed to have waived any of its rights, powers or remedies hereunder
unless such waiver is made in writing signed by such party.
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SECTION 13. ACCOUNTING AND AUDIT.
During the term of this Agreement and for a period of one hundred and eighty
(180) days following the termination of this Agreement, AGENCY or BISYS may,
during normal business hours at its own expense and upon reasonable notice,
inspect and conduct audits of all records of the other party relating to all
transactions contemplated hereunder.
SECTION 14. COMPLIANCE WITH REGULATORY AUTHORITIES.
The parties mutually agree to cooperate fully in any regulatory examination or
investigation by, or proceeding of any governmental or judicial authority
arising in connection with this Agreement or the offering sale, and/or
servicing of insurance thereunder, and to cooperate fully in any regulatory
examination or investigation by, or proceeding of any governmental or judicial
authority with respect to AGENCY or BISYS, and their respective affiliates,
agents, representatives or employees to the extent that such investigation or
proceeding is in connection to this Agreement or any conduct relating thereto.
SECTION 15. FORCE MAJEURE.
To the extent permitted by law, in the event that any party should fail in whole
or in part to fulfill its obligations under this Agreement as a consequence of
acts of God, fire, explosion, strikes, floods, earthquakes, embargoes, war, or
riot, such failure to perform shall not be considered a breach of this Agreement
during the period of such disability and for a reasonable time thereafter. In
the event of any force majeure occurrence as set forth in this Section 15, the
disabled party shall use its best efforts to meet its obligations as set forth
in this Agreement. The disabled party shall promptly and in writing advise the
other party if it is unable to perform due to a force majeure event, of the
expected duration of such inability to perform, and of any developments (or
changes therein) that appear likely to affect the ability of that party to
perform any of its obligations hereunder in whole or in part.
SECTION 16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and shall be binding upon the parties hereto.
SECTION 17. ENTIRE AGREEMENT.
This Agreement and the Exhibits attached hereto embody the entire agreement and
understanding between the parties hereto with respect to the subject hereof and
supersedes any and all prior agreements and understandings relating to the
subject matter hereof.
SECTION 18. CONSTRUCTION OF AGREEMENT.
The headings contained herein are for the convenience of reference only and are
not intended to define, limit, expand or describe the scope or intent of any
provision of this Agreement.
SECTION 19. DISCLAIMER.
Nothing contained herein shall be deemed to guarantee or warrant, nor does
AGENCY represent, that any or all CUSTOMERS will use the services of BISYS or
that any such CUSTOMER that avails itself of BISYS' services is credit worthy.
AGENCY shall not be liable to BISYS for any costs or damages sustained by BISYS
as a result of the failure of any such CUSTOMER to use BISYS' services or to
purchase any PRODUCT recommended by BISYS.
SECTION 20. NO PARTNERSHIP, ETC.
11
It is expressly understood and agreed that neither party hereto has, or shall
have, authority to make any representation, warranty or any binding
commitment in the name or on behalf of the other party. Neither the execution
and delivery nor the performance of this Agreement shall constitute the
parties hereto as partners, joint venturers or participants in any other
association between them or any other person, nor create any relationship of
principal and agent or franchiser and franchisee. Neither of the parties
shall be responsible for, or incur any liability with respect to, the debts
or the acts or omissions to act of the other party.
SECTION 21. WAIVER, MODIFICATION.
There can be no waiver of any term, provision or condition of this Agreement
except in a writing signed by the party against whom the waiver is to be
asserted. No change, modification or amendment to or of any provision of this
Agreement shall be deemed to have been made or shall be effective unless
expressed in a writing and signed by both AGENCY and BISYS.
SECTION 22. FURTHER ASSURANCES.
AGENCY and BISYS shall each take all such actions as may be reasonably
requested by the other (including, without limitation, the execution of any
further instruments and documents) in order to carry out the provisions and
purposes of this Agreement.
SECTION 23. COMMUNICATIONS.
All notices or other communications given under this Agreement shall be made
by guaranteed overnight delivery, or certified mail, or by telephone or
telecopy only if immediately followed by one of the written notices as stated
herein. Notice is effective when first received. Notices will be given to the
parties at the following addresses:
If to BISYS: BISYS Insurance Services, Inc.
Attn: Executive Vice President
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
With a copy to: BISYS Insurance Services, Inc.
Attn: Counsel
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
If to AGENCY: Xxxxxxx and Xxxx, Inc.
Attn: Assistant Vice President, Insurance
Marketing
0000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
With a copy to: Xxxxxxx & Xxxx, Inc.
Attention: Legal Department
0000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
SECTION 24. SEVERABILITY.
If any provision of this Agreement shall be held or determined to be illegal,
void or unenforceable, then the remaining provisions shall continue in full
force and effect and unaffected by such holding or determination.
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SECTION 25. GOVERNING LAW.
This Agreement and all questions relating to its validity, interpretation,
performance and enforcement shall be governed by and construed in accordance
with the laws of Pennsylvania including its statutes of limitations but
without regard to its conflict of laws provisions.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers as of the date first above written.
BISYS INSURANCE SERVICES, INC. W & R INSURANCE AGENCY, INC.
By: /s/ J. Xxxxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxx
-------------------------- ------------------------
Name: J. Xxxxxxx Xxxxxxx Name: Xxxx Xxxxxxxx, ChFC
Title: Executive Vice President Title: Assistant Vice President,
Insurance Marketing
Underwriters Equity Corp. XXXXXXX & XXXX, Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------- ----------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President, Finance Title: Executive Vice President,
National Sales Manager
14
EXHIBIT A
Approved Carrier List:
American General
Banner Life
Continental Assurance
First Colony
First Penn Pacific
GE Capital
Jefferson Pilot
Lincoln Benefit
Lincoln Life
Manulife
Mass Mutual
Prudential
Reliastar of NY
Security-Connecticut
Sun Life of Canada
United of Omaha
USG Annuity and Life
Valley Forge
Zurich Xxxxxx
