Exhibit 10.7
BLUE CROSS
CONTROLLED AFFILIATE LICENSE AGREEMENT
APPLICABLE TO LIFE INSURANCE COMPANIES
(Includes revisions, if any, adopted by Member Plans through
their November 19, 1999 meeting)
This agreement by and among Blue Cross and Blue Shield
Association ("BCBSA") Healthy Alliance Life Insurance Company
("Controlled Affiliate"), a controlled affiliate of the Blue
Cross Plan(s), known as Blue Cross and Blue Shield of Missouri
("Plan").
WHEREAS, BCBSA is the owner of the BLUE CROSS and BLUE CROSS
Design service marks;
WHEREAS, the Plan and the Controlled Affiliate desire that
the latter be entitled to use the BLUE CROSS and BLUE CROSS
Design service marks (collectively the "Licensed Marks") as
service marks and be entitled to use the term BLUE CROSS in a
trade name ("Licensed Name");
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement,
BCBSA hereby grants to the Controlled Affiliate the exclusive
right to use the licensed Marks and Names in connection with and
only in connection with those life insurance and related services
authorized by applicable state law, other than health care plans
and related services (as defined in the Plan's License Agreements
with BCBSA) which services are not separately licensed to
Controlled Affiliate by BCBSA, in the Service Area served by the
Plan, except that BCBSA reserves the right to use the Licensed
Marks and Name in said Service Area, and except to the extent
that said Service Area may overlap the area or areas served by
one or more other licensed Blue Cross Plans as of the date of
this License as to which overlapping areas the rights hereby
granted are non-exclusive as to such other Plan or Plans and
their respective Licensed Controlled Affiliates only. Controlled
Affiliate cannot use the Licensed Marks or Name outside the
Service Area or, anything in any other license to Controlled
Affiliate not withstanding, in its legal or trade name.
2. QUALITY CONTROL
A. Controlled Affiliate agrees to use the Licensed
Marks and Name only in relation to the sale, marketing and
rendering of authorized products and further agrees to be bound
by the conditions regarding quality control shown in Exhibit A as
it may be amended by BCBSA from time-to-time.
B. Controlled Affiliate agrees that Plan and/or BCBSA
may, from time-to-time, upon reasonable notice, review and
inspect the manner and method of Controlled Affiliate's rendering
of service and use of the Licensed Marks and Name.
C. Controlled Affiliate agrees that it will provide
on an annual basis (or more often if reasonably required by Plan
or by BCBSA) a report to Plan and BCBSA demonstrating Controlled
Affiliate's compliance with the requirements of this Agreement
including but not limited to the quality control provisions of
Exhibit A.
D. As used herein, a Controlled Affiliate is defined
as an entity organized and operated in such a manner that it is
subject to the bona fide control of a Plan or Plans. Absent
written approval by BCBSA of an alternative method of control,
bona fide control shall mean the legal authority, directly or
indirectly through wholly-owned subsidiaries: (a) to select
members of the Controlled Affiliate's governing body having not
less than 51% voting control thereof; (b) to exercise operational
control with respect to the governance thereof; and (c) to
prevent any change in its articles of incorporation, bylaws or
other governing documents deemed inappropriate. In addition, a
Plan or Plans shall own at least 51% of any for-profit Controlled
Affiliate. If the Controlled Affiliate is a mutual company, the
Plan or its designee(s) shall have and maintain, in lieu of the
requirements of items (a) and (c) above, proxies representing 51%
of the votes at any meeting of the policyholders and shall
demonstrate that there is no reason to believe this such proxies
shall be revoked by sufficient policyholders to reduce such
percentage below 51%.
3. SERVICE ▇▇▇▇ USE
Controlled Affiliate shall at all times make proper
service ▇▇▇▇ use of the Licensed Marks, including but not limited
to use of such symbols or words as BCBSA shall specify to protect
the Licensed Marks, and shall comply with such rules (applicable
to all Controlled Affiliates licensed to use the Marks) relative
to service ▇▇▇▇ use, as are issued from time-to-time by BCBSA.
If there is any public reference to the affiliation between the
Plan and the Controlled Affiliate, all of the Controlled
Affiliate's licensed services in the Service Area of the Plan
shall be rendered under the Licensed Marks. Controlled Affiliate
recognizes and agrees that all use of the Licensed Marks by
Controlled Affiliate shall inure to the benefit of BCBSA.
4. SUBLICENSING AND ASSIGNMENT
Controlled Affiliate shall not sublicense, transfer,
hypothecate, sell, encumber or mortgage, by operation of law or
otherwise, the rights granted hereunder and any such act shall be
voidable at the option of Plan or BCBSA. This Agreement and all
rights and duties hereunder are personal to Controlled Affiliate.
5. INFRINGEMENTS
Controlled Affiliate shall promptly notify Plan and BCBSA
of any suspected acts of infringement, unfair competition or
passing off which may occur in relation to the Licensed Marks.
Controlled Affiliate shall not be entitled to require Plan or
BCBSA to take any actions or institute any proceedings to prevent
infringement, unfair competition or passing off by third parties.
Controlled Affiliate agrees to render to Plan and BCBSA, free of
charge, all reasonable assistance in connection with any matter
pertaining to the protection of the Licensed Marks by BCBSA.
6. LIABILITY INDEMNIFICATION
Controlled Affiliate hereby agrees to save, defend,
indemnify and hold Plan and BCBSA harmless from and against all
claims, damages, liabilities and costs of every kind, nature and
description which may arise as a result of Controlled Affiliate's
rendering of services under the Licensed Marks.
7. LICENSE TERM
The license granted by this Agreement shall remain in
effect for a period of one (1) year and shall be automatically
extended for additional one (1) year periods, unless one of the
parties hereto notifies the other party of the termination hereof
at least sixty (60) days prior to expiration of any license
period, or unless otherwise terminated pursuant to the provisions
herein.
This Agreement may be terminated by the Plan or by BCBSA
for cause at any time provided that Controlled Affiliate has been
given a reasonable opportunity to cure and shall not effect such
a cure within thirty (30) days of receiving written notice of the
intent to terminate (or commence a cure within such thirty day
period and continue diligent efforts to complete the cure if such
curing cannot reasonably be completed within such thirty day
period). By way of example and not for purposes of limitation,
Controlled Affiliate's failure to abide by the quality control
provisions of Paragraph 2, above, shall be considered a proper
ground for cancellation of this Agreement.
This Agreement and all of Controlled Affiliate's rights
hereunder shall immediately terminate without any further action
by any party or entity in the event that:
A. Controlled Affiliate shall no longer comply with
Standard No. 1 (Organization and Governance) of Exhibit A or,
following an opportunity to cure, with the remaining quality
control provisions of Exhibit A, as it may be amended from time-
to-time; or
B. Plan ceases to be authorized to use the Licensed
Marks; or
C. Appropriate dues for Controlled Affiliate pursuant to
item 8 hereof, which are the royalties for this License Agreement
are more than sixty (60) days in arrears to BCBSA.
Upon termination of this Agreement for cause or otherwise,
Controlled Affiliate agrees that it shall immediately discontinue
all use of the Licensed Marks including any use in its trade
name.
In the event of any disagreement between Plan and BCBSA as
to whether grounds exist for termination or as to any other term
or condition hereof, the decision of BCBSA shall control, subject
to provisions for mediation or mandatory dispute resolution in
effect between the parties.
Upon termination of this Agreement, Licensed Controlled
Affiliate shall immediately notify all of its customers that it
is no longer a licensee of the Blue Cross and Blue Shield
Association and provide instruction on how the customer can
contact the Blue Cross and Blue Shield Association or a
designated licensee to obtain further information on securing
coverage. The written notification required by this paragraph
shall be in writing and in a form approved by the Association.
The Association shall have the right to audit the terminated
entity's books and records to verify compliance with this
paragraph.
8. DUES
Controlled Affiliate will pay to BCBSA a fee for this
license in accordance with the following formula:
An annual fee of five thousand dollars ($5,000) per
license, plus
.05% of gross revenue per year from branded group products,
plus
.5% of gross revenue per year from branded individual
products plus
.14% of gross revenue per year from branded individual
annuity products.
The foregoing percentages shall be reduced by one-
half in cases where both a BLUE CROSS(R) and BLUE SHIELD(R)
License are issued to the same entity. In the event that
any License period is greater or less than one (1) year,
any amounts due shall be prorated. Royalties under this
formula will be calculated, billed and paid in arrears.
Plan will promptly and timely transmit to BCBSA all dues
owed by Controlled Affiliate as determined by the above formula
and if Plan shall fail to do so, Controlled Affiliate shall pay
such dues directly.
9. JOINT VENTURE
Nothing contained in this Agreement shall be construed as
creating a joint venture, partnership, agency or employment
relationship between Plan and Controlled Affiliate or between
either and BCBSA.
9A. VOTING
For all provisions of this Agreement referring to voting,
the term `Plans' shall mean all entities licensed under the Blue
Cross License Agreement and/or the Blue Shield License
Agreement, and in all votes of the Plans under this Agreement
the Plans shall vote together. For weighted votes of the Plans,
the Plan shall have a number of votes equal to the number of
weighted votes (if any) that it holds as a Blue Cross Plan plus
the number of weighted votes (if any) that it holds as a Blue
Shield Plan. For all other votes of the Plans, the Plan shall
have one vote. For all questions requiring an affirmative three-
fourths weighted vote of the Plans, the requirement shall be
deemed satisfied with a lesser weighted vote unless six (6) or
more Plans fail to cast weighted votes in favor of the question.
Amended as of March 11, 1999
10. NOTICES AND CORRESPONDENCE
Notices regarding the subject matter of this Agreement or
breach or termination thereof shall be in writing and shall be
addressed in duplicate to the last known address of each other
party, marked respectively to the attention of its President and,
if any, its General Counsel.
11. COMPLETE AGREEMENT
This Agreement contains the complete understandings of the
parties in relation to the subject matter hereof. This Agreement
may only be amended by a writing executed by all parties.
12. SEVERABILITY
If any term of this Agreement is held to be unlawful by a
court of competent jurisdiction, such finding shall in no way
effect the remaining obligations of the parties hereunder and the
court may substitute a lawful term or condition for any unlawful
term or condition so long as the effect of such substitution is
to provide the parties with the benefits of this Agreement.
13. NONWAIVER
No waiver by BCBSA of any breach or default in performance
on the part of the Controlled Affiliate or any other licensee of
any of the terms, covenants or conditions of this Agreement shall
constitute a waiver of any subsequent breach or default in
performance of said terms, covenants or conditions.
14. GOVERNING LAW
This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of
Illinois.
IN WITNESS WHEREOF, the parties have caused this License
Agreement to be executed, effective as of the date of last
signature written below.
Controlled Affiliate: Healthy Alliance Life Insurance Company
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇▇
Date: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇: Blue Cross and Blue Shield of Missouri
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇▇
Date: March 9, 2000
BLUE CROSS AND BLUE SHIELD ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: March 9, 2000
EXHIBIT A
CONTROLLED AFFILIATE LICENSE STANDARDS
LIFE INSURANCE COMPANIES
PREAMBLE
The standards for licensing Life Insurance Companies (Life and
Health Insurance companies, as defined by state statute) are
established by BCBSA and are subject to change from time-to-time
upon the affirmative vote of three-fourths (3/4) of the Plans and
three-fourths (3/4) of the total weighted vote of all Plans.
Each Licensed Plan is required to use a standard controlled
affiliate license form provided by BCBSA and to cooperate fully
in assuring that the Licensed Life Insurance Company maintains
compliance with the License Standards.
An organization meeting the following Standards shall be eligible
for a license to use the Licensed Marks within the service area
of its sponsoring Licensed Plan to the extent and the manner
authorized under the Controlled Affiliate License applicable to
Life Insurance Companies and the principal License to the Plan.
Standard 1 - Organization and Governance
The LIC shall be organized and operated in such a manner that it
is controlled by a licensed Plan or Plans which have, directly or
indirectly: 1) not less than 51% of the voting control of the
LIC; and 2) the legal ability to prevent any change in the
articles of incorporation, bylaws or other establishing or
governing documents of the LIC with which it does not concur; and
3) operational control of the LIC.
If the LIC is a mutual company, the Plan or its designee(s) shall
have and maintain, in lieu of the requirements of items 1 and 2
above, proxies representing at least 51% of the votes at any
policyholder meeting and shall demonstrate that there is no
reason to believe such proxies shall be revoked by sufficient
policyholders to reduce such percentage below 51%.
Standard 2 - State Licensure
The LIC must maintain unimpaired licensure or certificate of
authority to operate under applicable state laws as a life and
health insurance company in each state in which the LIC does
business.
EXHIBIT A (continued)
Standard 3 - Records and Examination
The LIC and its sponsoring licensed Plan(s) shall maintain and
furnish, on a timely and accurate basis, such records and reports
regarding the LIC as may be required in order to establish
compliance with the License Agreement. The LIC and its
sponsoring licensed Plan(s) shall permit BCBSA to examine the
affairs of the LIC and shall agree that BCBSA's Board may submit
a written report to the chief executive officer(s) and the
Board(s) of Directors of the sponsoring Plan(s).
Standard 4 - Mediation
The LIC and its sponsoring Plan(s) shall agree to use the then-
current BCBSA mediation and mandatory dispute resolution
processes, in lieu of a legal action between or among another
licensed controlled affiliate, a licensed Plan or BCBSA.
Standard 5 - Financial Responsibility
The LIC shall maintain adequate financial resources to protect
its customers and meet its business obligations.
Standard 6 - Cooperation with Affiliate License Performance
Response Process Protocol
The LIC and its Sponsoring Plan(s) shall cooperate with
BCBSA's Board of Directors and its Plan Performance and
Financial Standards Committee in the administration of the
Affiliate License Performance Response Process Protocol
(ALPRPP) and in addressing LIC compliance problems identified
thereunder.