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EXHIBIT 10.79
LOSS PORTFOLIO TRANSFER
ASSUMPTION REINSURANCE AGREEMENT
between
NARM Manufacturers' Group Self Insurance Association of Virginia
Hereinafter referred to as the "GSIA""
and
RISCORP National Insurance Company
Hereinafter referred to as the "Reinsurer"
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LOSS PORTFOLIO TRANSFER
ASSUMPTION REINSURANCE AGREEMENT
TABLE OF CONTENTS
ARTICLE 1 - BUSINESS COVERED ............................................................ 2
ARTICLE 2 - EFFECTIVE DATE .............................................................. 2
ARTICLE 3 - REINSURANCE PREMIUM ......................................................... 2
ARTICLE 4 - COOPERATION AMONG PARTIES; TRANSFER OF DOCUMENTS ............................ 3
ARTICLE 5 - NOTICE OF ASSUMPTION ........................................................ 3
ARTICLE 6 - ADMINISTRATION AND CLAIM PAYMENTS ........................................... 4
ARTICLE 7 - ASSESSMENTS ................................................................. 4
ARTICLE 8 - DIRECT SUIT AGAINST THE REINSURER ........................................... 4
ARTICLE 9 - INDEMNIFICATION ............................................................. 4
ARTICLE 10 - OTHER OBLIGATIONS ........................................................... 5
ARTICLE 11 - REQUIRED REGULATORY APPROVAL ................................................ 5
ARTICLE 12 - SUBROGATION AND REINSURANCE RECEIVABLES ..................................... 5
ARTICLE 13 - ERRORS OR OMISSIONS ......................................................... 6
ARTICLE 14 - ARBITRATION ................................................................. 6
ARTICLE 15 - HONORABLE UNDERTAKING ....................................................... 7
ARTICLE 16 - TAX NEUTRALITY .............................................................. 7
ARTICLE 17 - GENERAL PROVISIONS .......................................................... 7
A. Successor and Assigns .................................................... 7
B. Governing Law ............................................................ 7
C. Entire Agreement ......................................................... 7
D. Counterparts.............................................................. 7
E. Headings, etc ............................................................ 8
F. Non-waiver ............................................................... 8
G. Severability ............................................................. 8
H. Notices .................................................................. 8
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LOSS PORTFOLIO TRANSFER
ASSUMPTION REINSURANCE AGREEMENT
(Hereinafter referred to as the "Agreement")
between
NARM MANUFACTURERS' GROUP SELF INSURANCE ASSOCIATION OF VIRGINIA
(Hereinafter referred to as the "GSIA")
and
RISCORP NATIONAL INSURANCE COMPANY
(Hereinafter referred to as the "Reinsurer")
ARTICLE 1 - BUSINESS COVERED
A. The Reinsurer assumes by assumption reinsurance the Policies and the
liability to pay all losses, including loss adjustment expenses, covered by
Policies issued by the GSIA prior to October 1, 1996, to all policyholders,
including all existing and incurred but not reported ("IBNR") claims covered by
the Policies (hereinafter "Reinsured Claims"), subject to the terms and
conditions contained herein.
B. The term "Policies" shall mean all binders, policies, contracts, certificates
and other obligations, whether oral or written, of insurance issued by the GSIA
to its member employers. It is understood and agreed that the Reinsurer is bound
by all the terms and conditions of the GSIA's Policies as if the Policies had
been issued by the Reinsurer.
C. The GSIA hereby transfers to the Reinsurer all rights the GSIA may have now
or in the future under or with respect to the Policies, including, without
limitation, the right to collect and adjust premiums, adjust and settle claims,
deny coverage, rescind policies, etc.
ARTICLE 2 - EFFECTIVE DATE
This Agreement shall be effective as of 12:01 a.m., Eastern Standard Time,
October 1, 1996.
ARTICLE 3 - REINSURANCE PREMIUM
The GSIA shall pay a premium equal to the sum of all of its assets as of the
Effective Date to the Reinsurer in accordance with the following terms and
conditions.
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executing any document reasonably necessary to evidence the completion of the
transactions contemplated by the Agreement.
ARTICLE 6 - ADMINISTRATION AND CLAIM PAYMENTS
A. From and after the Effective Date, the Reinsurer will be solely liable for
the administration and disposition of all aspects of the Reinsured Claims
assumed by the Reinsurer including, without limitation, the defense, adjustment,
settlement, and payment of all losses and expenses arising under or relating to
the Reinsured Claims. The GSIA hereby grants and assigns to the Reinsurer full
authority to administer such losses, claims, expenses, defenses, adjustments,
settlements, and payments, and such matters will be under the Reinsurer's
control and within its discretion. The Reinsurer will bear all expenses and
costs incurred by it in connection with the administration and disposition of
such losses, claims, expenses, defenses, adjustments, settlements, and payments.
B. The GSIA will cause all information and notices regarding the Reinsured
Claims actually received by the GSIA after the Effective Date to be promptly
reported to the Reinsurer or the Reinsurer's designated representative. The
GSIA also will undertake any reasonable arrangements deemed necessary by
the Reinsurer to ensure that all notices received by the GSIA after the
Effective Date in connection with the Reinsured Claims are promptly delivered
to the Reinsurer.
C. All losses and similar items regarding the Reinsured Claims that the
Reinsurer determines to be payable will be paid directly and promptly by the
Reinsurer.
ARTICLE 7 - ASSESSMENTS
In the event that an assessment is made against any present or former
policyholders of the GSIA pursuant to Virginia General Statutes, the Reinsurer
agrees to pay the full assessment on behalf of said policyholders. By this
undertaking, the Reinsurer and the GSIA expressly intend to benefit as third
party beneficiaries all present and former policyholders of the GSIA, and the
Reinsurer agrees to be subject to suit by any policyholder as set out in Article
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ARTICLE 8 - DIRECT SUIT AGAINST THE REINSURER
The Reinsurer hereby covenants and agrees that it may be sued for its
actions after the Effective Date, in its own name, by insured under the
Policies.
ARTICLE 9 - INDEMNIFICATION
The Reinsurer agrees to defend, protect, indemnify and hold harmless
the GSIA and its successors or assigns, against any liability, claim, loss or
damage, including punitive damages, arising under or out of any of the Reinsured
Claims reinsured hereunder or the transactions contemplated by this Agreement.
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ARTICLE 10 OTHER OBLIGATIONS
The Reinsurer shall also be responsible for any losses assessed against
the GSIA or The Reinsurer. Such losses are defined as those liabilities (whether
they constitute compensatory, incidental, exemplary or punitive damages) not
covered under any other provision of this Agreement.
ARTICLE 11 - REQUIRED REGULATORY APPROVAL
This Agreement remains subject to the approval of the Virginia Bureau
of Insurance. The GSIA and the Reinsurer shall take all steps necessary to
obtain requisite regulatory approval of this Agreement and the transaction
described herein.
ARTICLE 12 - SUBROGATION AND REINSURANCE RECEIVABLES
A. In the event of the payment of any loss by the Reinsurer under this
Agreement, the Reinsurer shall be subrogated, to the extent of such payment, to
all of the rights of the GSIA against any person or entity legally responsible
for the loss. The Reinsurer is hereby authorized and empowered to bring any
appropriate action in its own name or in the name of the GSIA to enforce such
rights.
B. Any payments received by or due to the GSIA from any reinsurer of the GSIA
which is payable on a Reinsured Claim shall become the property of and paid to
the Reinsurer. If any payment is received by the GSIA which is to be credited to
the Reinsurer under or with respect to any of the Reinsured Claims, the GSIA
will immediately endorse (without warranty or recourse) and deliver to the
Reinsurer such checks, drafts, or money intended as such payment, and until
delivery of such items to the Reinsurer, the GSIA will treat any such checks,
drafts, or money as the property of the Reinsurer held for the account of the
Reinsurer. The Reinsurer and the GSIA will each use all commercially reasonable
efforts to cause the transfer and assignment (as of the Effective Date) to the
Reinsurer of all of the GSIA's rights, interests, and obligations under the
GSIA's reinsurance agreements, if any, covering the risks, liabilities, and
obligations of the GSIA under or with respect to the Reinsured Claims,
including, without limitation, obtaining any necessary consents or approvals to
such transfer and assignment by the reinsurers under any such reinsurance
agreements effective as of the Effective Date. Any failure to receive the
consents referred to herein will not relieve or diminish in any manner the
Reinsurer's obligations under this Agreement.
C. The Reinsurer shall be authorized and entitled to file and pursue the
collection of claims against the State of Virginia, Second Injury Fund, arising
out of or resulting from Reinsured Claims (hereinafter "SIF Claims"); to pursue
the collection of SIF Claims filed by the GSIA prior to the Effective Date; and
to collect, receive, and retain any monies
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paid in settlement of satisfaction of any SIF Claims filed by either the
Reinsurer or the GSIA.
ARTICLE 13- ERRORS OR OMISSIONS
Inadvertent delays, errors, or omissions made in correction with this
Agreement or any transaction hereunder will not relieve either party from any
liability that would otherwise have attached had such delay, error, or omission
not occurred. Regardless, the responsible party will rectify each such delay,
error, or omission as promptly as practicable after discovery.
ARTICLE 14 - ARBITRATION
A. Any dispute or other matter in question between the GSIA and the Reinsurer
arising out of or relating to the formation, interpretation, performance, or
breach of this Agreement, whether such dispute arises before or after
termination of this Agreement, shall be settled by arbitration if the parties
are unable to resolve the dispute through negotiation. Arbitration shall be
initiated by the delivery of a written notice of demand for arbitration by one
party to the other.
B. Each party shall appoint an individual as arbitrator and the two so appointed
shall then appoint a third arbitrator. If either party refuses or neglects to
appoint an arbitrator within sixty (60) days of receipt of a written notice of
demand for arbitration, the other party may appoint the second arbitrator. If
the two arbitrators do not agree on a third arbitrator within sixty (60) days of
their appointment, each of the arbitrators shall nominate three individuals.
Each arbitrator shall then decline two of the nominations presented by the other
arbitrator. The third arbitrator shall then be chosen from the remaining two
nominations by drawing lots. The arbitrators shall be active or former officers
of insurance or reinsurance companies; the arbitrators shall not have a personal
or financial interest in the result of arbitration.
C. The arbitrate on hearings shall be held in Richmond, Virginia, or such other
place as may be mutually agreed. Each party shall submit its case to the
arbitrators within sixty (60) days of the selection of the third arbitrator or
within such longer period as may be agreed by the arbitrators. The arbitrators
shall not be obliged to follow judicial formalities or the rules of evidence
except to the extent required by governing law, that is, the state law of the
situs of the arbitration as herein agreed; they shall make their decisions
according to the practice of the reinsurance business. The decision rendered by
a majority of the arbitrators shall be final and binding on both parties. Such
decision shall be a condition precedent to any right of legal action arising out
of the arbitrated dispute which either party may have against the other.
Judgment upon the award rendered may be entered in any court having
jurisdiction thereof.
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D. Each party shall pay the fee and expenses of its own arbitrator and attorneys
and one-half of the fees and expenses of the third arbitrator. All other
expenses of the arbitration shall be equally divided between the parties.
E. Except as provided above, arbitration shall be based, insofar as applicable,
upon the Commercial Arbitration Rules of the American Arbitration Association.
ARTICLE 15 - HONORABLE UNDERTAKING
This Agreement shall be construed as an honorable undertaking between
the parties hereto not to be defeated by technical legal constructions, it being
the intention of this Agreement that the fortunes of the Reinsurer shall in all
cases follow the fortunes of the GSIA.
ARTICLE 16 - TAX NEUTRALITY
The parties to the Agreement contemplate that as a result of or
concurrent with the transfer of assets and liabilities contemplated hereby, the
GSIA shall become entitled to a refund of certain taxes, and that the Reinsurer
shall sustain a corresponding tax liability. Accordingly, and in order to render
the transaction tax-neutral as to such refund, the GSIA hereby disavows any
right to collect any tax refund to which it currently is or may become entitled,
and assigns its rights to any such tax refund to the Reinsurer.
ARTICLE 17 - GENERAL PROVISIONS
A. Successors and Assigns. This Agreement shall inure to the benefit of and bind
the GSIA and its successors and assigns and the Reinsurer and its successors and
assigns. Neither this Agreement nor any right hereunder nor any part hereof may
be assigned by any party hereto without the prior written consent of the other
party hereto. Prior to any such assignment, the consent of all necessary
regulatory authorities must be obtained.
B. Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of Virginia (without giving effect to principles of
conflicts of laws) applicable to a contract executed and to be performed in such
state.
C. Entire Agreement. This Agreement supersedes all prior discussions and
agreements between, and contains the sole and entire agreement between the GSIA
and the Reinsurer with respect to the subject matter hereof.
D. Counterparts. This Agreement may be executed simultaneously in any number of
counterparts, each of which will be deemed an original, but all of which will
constitute one and the same instrument.
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E. Headings, etc. The headings used in this Agreement have been inserted for
convenience and do not constitute matter to be construed or interpreted in
connection with this Agreement. Unless the context of this Agreement otherwise
requires, (a) words of any gender will be deemed to include each other gender,
(b) words using the singular or plural number will also include the plural or
singular number, respectively, (c) the terns "hereof," "herein," "hereby," and
derivative or similar words will refer to this entire Agreement, and (d) the
conjunction "or" will denote any one or more, or any combination or all, of the
specified items or matter involved in the respective list.
F. Non-waiver. The failure of either party hereto at any time to enforce any
provision of this Agreement shall not be construed as a waiver of that provision
and shall not effect the right of either party thereafter to enforce each and
every provision of this Agreement in accordance with its terms.
G. Severabilty. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under any present or future law, and if the rights or
obligation of any party under this Agreement will not be materially and
adversely affected thereby, (a) such provision will be fully severable, (b) this
Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof, (c) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom, and (d) in lieu of such illegal, invalid, or unenforceable
provision or by its severance added automatically as a part of this Agreement, a
legal, valid, and enforceable provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible.
H. Notice. Any notice or communication given pursuant to this Agreement must be
in writing and will be deemed to have been duly given if mailed (by registered
or certified mail, postage prepaid, return receipt requested), or if transmitted
by facsimile, or if delivered by courier, as follows:
To the GSIA:
NARM Manufacturers' Group Self Insurance Association of Virginia
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairperson of the Board
(▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
To the Reinsurer:
RISCORP National Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
(▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇-) ▇▇▇-▇▇▇▇
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All notices and other communications required or permitted under this Agreement
that are addressed as provided in this paragraph will, whether sent by mail,
facsimile, or courier, be deemed given upon the first business day after actual
delivery to the party to whom such notice or other communication is sent (as
evidenced by the return receipt or shipping invoice signed by a representative
of such party or by the facsimile confirmation). Any party from time to time may
change its address for the purpose of notices to that party by giving a similar
notice specifying a new address, but no such notice will be deemed to have been
given until it is actually received by the party sought to be charged with the
contents thereof
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives this __ day ______ of 1996.
ATTEST: NARM Manufacturers' Group Self Insurance
Association of Virginia
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- --------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title:Chairperson of the Board
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ATTEST: RISCORP National Insurance Company
/s/ By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- --------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title:President
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EXHBIT 11
RISCORP, INC. AND SUBSIDIARIES
STATEMENT RE COMPUTATION OF PER SHARE EARNINGS
YEARS ENDED DECEMBER 31,
(IN THOUSANDS EXCEPT SHARE AND PER SHARE AMOUNTS)
1996 1995 1994
---- ---- ----
Net Income
Weighted average common and common
share equivalents outstanding:
Average number of common shares outstanding 34,422,483 30,092,500 30,092,500
Redemption contingency for CompSource acquisition 382,100 -- --
Redemption contingencies for IAA acquisition 225,503 -- --
Common stock equivalents - assumed exercise
of stock options (1) 1,757,602 -- --
Weighted average common and common share
equivalents outstanding 36,787,688 30,092,500 30,092,500
Earnings per share $ 0.38 $ 0.45 $ 0.23
(1) 1995 and 1994 earnings per share calculation excludes 2,556,557 and
1,835,392 shares, respectively, of Class A Common Stock reserved for
issuance pursuant to the exercise of stock options outstanding as of
December 31, 1995 and 1994, having a weighted average exercise price of
$3.96 and $3.01 per share, respectively.
