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EXHIBIT 10H.
AMENDED AND RESTATED ENDORSEMENT AGREEMENT
THIS AMENDED AND RESTATED ENDORSEMENT AGREEMENT (the "Agreement") is
made and entered into with an effective date of January 1, 1999 (the "Effective
Date"), by and between MIDWEST MEDICAL INSURANCE COMPANY, a Minnesota insurance
corporation ("MMIC"), and IOWA MEDICAL SOCIETY, an Iowa nonprofit corporation
("IMS").
RECITALS:
A. MMIC and IMS are parties to that certain Endorsement Agreement dated as
of July 1, 1993, as amended by the Endorsement Agreement Amendment
dated as of December 21, 1995 (the "Original Endorsement Agreement"),
pursuant to which IMS has agreed to endorse the MMIC Program (as
defined below).
B. The parties now wish to continue the endorsement by IMS of the MMIC
Program subject to the modification of certain terms and conditions of
such endorsement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Effect on Original Endorsement Agreement. MMIC and IMS hereby
acknowledge and agree that from and after the Effective Date, the Original
Endorsement Agreement shall be amended and restated as set forth in this
Agreement and that the endorsement by IMS of the MMIC Program shall be
undertaken on the terms and subject to the conditions set forth herein.
2. Certain Definitions. As used herein, the terms set forth below shall
have the following meanings:
(a) "MMIC Program" shall mean the offer and sale by MMIC of
professional liability insurance policies meeting the
requirements of this Agreement providing coverage for
physicians practicing in the State of Iowa.
(b) "Endorse" or "Endorsement" shall mean the endorsement,
recognition and support of the MMIC Program by IMS to its
member physicians.
(c) "Voting Trust Agreement" shall mean the Voting Trust
Agreement dated July 1, 1993 between IMS and Minnesota
Medical Association ("MMA") in which the voting trustees,
as the sole record holders of the issued and outstanding
Class B common stock of Midwest Medical Insurance Holding
Company
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("MMIHC"), a Minnesota corporation, agree to vote the Class
B common stock for, and elect as directors of MMIHC from
time to time, those persons entitled to be proposed for
election by IMS.
(d) "IMS Licensed Marks" shall mean the following marks owned
by IMS: the name "Iowa Medical Society", the acronym "IMS"
and various symbols, devices, logos and designs embodying
the same.
(e) "MMIC Licensed Marks" shall mean the following marks owned
by MMIC: the names "Midwest Medical Insurance Company" and
"Midwest Medical Insurance", the acronym "MMIC" and various
symbols, devices, logos and designs embodying the same.
(f) "Merger Agreement" shall mean the Agreement and Plan of
Merger dated as of September 1, 1992 by and among MMIC,
MMIHC and Iowa Physicians Mutual Insurance Trust ("IPMIT"),
pursuant to which IPMIT was merged with and into MMIC.
3. Endorsement. IMS will and does hereby endorse MMIC and the MMIC
Program to its member physicians (including all former policyholders of IPMIT),
and agrees to endorse and promote the MMIC Program exclusively. IMS will use its
reasonable efforts to support the MMIC Program through its membership materials
and at IMS sponsored membership meetings and, so long as not involving material
direct expense to IMS, agrees during the term of this Agreement to:
(a) Provide a well located site for an MMIC booth at the annual
meeting of the House of Delegates of IMS and exclude all
other professional liability insurance carriers from
exhibiting at such meeting.
(b) Refuse to accept any sponsorship from any other
professional liability insurance carrier of any IMS events,
such as lunches, receptions, etc., at the annual meeting of
the House of Delegates and at all other membership
meetings, seminars or conventions.
(c) At the request of MMIC, co-sponsor with MMIC at least one
risk management seminar each calendar year.
(d) Invite MMIC to participate in any and all joint
IMS/specialty society or component society meetings
concerning professional liability issues.
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(e) Invite MMIC to participate in any and all IMS meetings or
seminars dealing with professional liability issues or
legislative issues concerning professional liability.
(f) Invite MMIC to participate in any and all IMS/Association
of Iowa Hospitals and Health Systems joint meetings
involving professional liability legislation or issues.
(g) List MMIC as the exclusive, endorsed and recommended
provider of professional liability insurance coverage in
all resource directories and other lists of endorsed
providers of member services.
(h) Provide MMIC on a quarterly basis with a list of names and
addresses of physicians commencing practice in the State of
Iowa.
(i) Provide MMIC the opportunity to deliver reports at all IMS
Executive Committee meetings and meetings of the Board of
Trustees (which shall be replaced by a Board of Directors
effective upon the opening of the IMS 1999 House of
Delegates meeting).
(j) Promptly notify MMIC of any issues related to MMIC
relations with IMS members that may come to the attention
of IMS.
(k) Make available for purchase by MMIC full-page prime
location advertising opportunities in IMS
publications.
4. License. IMS hereby grants MMIC an exclusive license to use the IMS
Licensed Marks and their associated goodwill, including the phrases "Endorsed by
the IMS" and "Exclusively Endorsed and Recommended by the Iowa Medical Society",
for the specific purpose of promoting, marketing, selling, advertising and
distributing products under the MMIC Program (including display of the IMS
Licensed Marks upon various printed and media materials used in connection
therewith), all subject to the terms of this Agreement. IMS acknowledges and
agrees that it may not grant to others a license or sublicense to use the IMS
Licensed Marks in connection with the offer, sale or promotion of professional
liability insurance coverages. MMIC acknowledges and agrees that it may not
grant others a license or sublicense to use the IMS Licensed Marks for any
purpose, except that materials prepared by MMIC for the permitted license
purposes may be distributed by MMIC's agents and contractors.
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MMIC hereby grants IMS an exclusive license to use the MMIC Licensed
Marks and their associated goodwill, including the phrase "Exclusively Endorsing
MMIC Professional Liability Insurance", in Iowa for the specific purpose of
performing its duties under this Agreement in connection with its membership
services and upon various printed and media materials used in connection
therewith, subject to the terms of this Agreement. IMS acknowledges and agrees
that it may not grant others a license or sublicense to use the MMIC Licensed
Marks, except that materials prepared by IMS for permitted license purposes may
be distributed by IMS' agents and contractors.
If this Agreement expires at the end of the Initial Term or any Renewal
Term (as defined in Section 10 hereof), without being terminated for cause or
any other reason permitted by this Agreement, MMIC and IMS, as licensees,
provided they are and remain in full compliance with the other terms and
provisions of this Agreement, may continue to use the respective licensed marks
in the ordinary course of business for a period of six (6) months after such
expiration date on a non-exclusive basis on materials on hand at the date of
such expiration. Upon termination of such six (6) month period, or immediately
if this Agreement is terminated for cause in accordance with Section 11 hereof,
the parties will destroy and/or delete the licensed marks from their respective
materials and cease all further use of the licensed marks.
5. Lawful Use. MMIC and IMS, each as licensee, represent and warrant to
the other that:
(a) All uses of the licensed marks will be lawful.
(b) Each licensee will use diligent efforts to provide the
other, as licensor, with copies or samples of each proposed
use of such licensed marks, in advance of use, for
reasonable comment.
(c) Each licensee will, as appropriate, indicate in all public
uses that the licensed marks are registered with the United
States Patent and Trademark Office.
(d) Each licensee agrees not to register, or attempt to
register, the licensed marks of the other.
6. Solicitation and Sales Activity. All solicitation, offers, sales,
marketing, servicing and other activity related to the MMIC Program shall be the
sole responsibility of MMIC or such agents and brokers as MMIC may in its
discretion appoint from time to time, and the parties hereto acknowledge and
agree that IMS shall have no authority or obligation to undertake any such
activities in connection with its Endorsement of the MMIC Program. MMIC shall be
solely responsible for compensating agents and
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brokers selected by MMIC to market the MMIC Program to physicians practicing in
the State of Iowa. All solicitation and promotional materials used by MMIC to
market the MMIC Program in the State of Iowa shall designate MMIC (or its
appointed agents) as the person to contact for further information concerning
the MMIC Program.
7. Royalty Payments. In consideration for the grant to MMIC of a
license to use the IMS Licensed Marks and for the IMS endorsement of the MMIC
Program, MMIC agrees to pay IMS an annual royalty comprised of the following
payments:
(a) Fixed Royalty. MMIC shall make an annual payment of $97,000
to IMS during each year for which this Agreement remains in
effect, with such payment to be made no later than the 28th
day of February, commencing with the year 1999.
(b) Variable Royalty. MMIC shall pay IMS a variable royalty
based on the gross written premium collected by MMIC with
respect to all physician business written in the State of
Iowa during each year for which this Agreement remains in
effect, with such royalty to be calculated as follows:
(i) 1.75% (.0175) of the first $15,000,000 of gross
written premium on all physician business written
in the State of Iowa; plus (ii) 1.25% (.0125) of
gross written premium on all physician business
written in the State of Iowa in excess of
$15,000,000; provided, however, (iii) that in no
event shall the variable royalty be less than the
sum of $200,000 on an annual basis.
By way of illustration, if MMIC collected gross written
premium of $18,000,000 for the year, the variable royalty
would be $300,000 (.0175 x $15,000,000 + .0125 x
$3,000,000 = $300,000), or if such gross written premium
collected during the year were $10,000,000, the variable
royalty would be established at the minimum figure of
$200,000, as the formula would result in an amount of
$175,000 (.0175 x $10,000,000 = $175,000).
The variable royalty shall be paid to IMS in monthly
installments due no later than the 15th day of each month
based on the gross written premium collected by MMIC for
the previous month. Each payment shall be accompanied by a
report presenting in reasonable detail the amount of gross
written premium collected by MMIC during the previous month
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(including, whenever possible, the names of the physicians
covered by policies with respect to which such premiums
were paid) and illustrating the calculation of the payment
made to IMS.
The term "gross written premium" shall be defined to mean
the total amount of premiums written and collected by MMIC
on all new and renewal policies of professional liability
insurance during a particular calendar year covering
physicians practicing in the State of Iowa, regardless of
whether the policy is issued in the name of an individual
physician, to a clinic or other practice group through
which a physician practices or to a hospital, health system
or other entity by which a physician is employed or through
which a physician engages in the practice of medicine.
The parties acknowledge and agree that IMS shall not be required to pay any
royalty or other fee for its use of the MMIC Licensed Marks in accordance with
the terms of this Agreement.
8. Certain Agreements of MMIC. On and after the Effective Date, MMIC
agrees to the following arrangements:
(a) MMIC will carry out each of the agreements made by it in
Article 7 of the Merger Agreement, each of which is hereby
made a condition of the Endorsement and its continuation.
MMIC confirms that the agreement set forth at Section 7.5
of the Merger Agreement is, in fact, an obligation of MMIC.
(b) In addition to the provisions of Section 7.9 of the Merger
Agreement, MMIC will consult with IMS on additions to or
deletions from the current defense counsel list for Iowa
physicians, although MMIC retains all decisions with
respect thereto in its unfettered discretion.
(c) MMIC will faithfully carry out the lessee's obligations
under the office building lease (the "Office Lease")
assumed from IPMIT in connection with the Merger Agreement,
the lessor under such lease being IMS.
(d) MMIC acknowledges that the provisions of Article III of the
Bylaws of MMIC and the Bylaws of MMIHC, dealing with Board
and committee participation by IMS members and their
representatives, may not be modified by the directors
because of the provisions of Article XI thereof.
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(e) MMIC agrees to sponsor appropriate activities at meetings
and events of IMS, all at the expense of MMIC, which are
expected to be at or above the level provided at meetings
and events of the MMA.
(f) MMIC agrees to provide information and meet with officers
of IMS with respect to various aspects of the MMIC Program,
including its financial results, the Endorsement,
marketing, coverage issues, litigation defense,
competitiveness of premiums, MMIHC board compensation
issues, grievances or complaints by either party or other
appropriate topics, to the same extent and in the same
manner as it provides similar information and meets with
officers of the MMA with respect to the Minnesota program,
and to do so on a continuing basis.
(g) MMIC shall provide to IMS upon its request the names of IMS
members who are insured under the MMIC Program and such
other information as is provided to the MMA and may
reasonably be requested by IMS.
(h) MMIC agrees to purchase prime advertising space in the IMS
Journal each year during the term of this Agreement at an
agreed price of $3,000 to be paid no later than February 28
of each year.
(i) MMIC agrees to permit representatives of IMS to have access
to MMIC's books and records during normal business hours
upon reasonable prior notice to verify the information
relating to the calculation of the variable royalty payment
pursuant to Section 7(b) of this Agreement.
9. Certain Agreements of IMS. On and after the Effective Date, IMS
agrees that it will faithfully carry out its obligations under the Office Lease.
10. Term of Agreement. Unless earlier terminated in accordance with the
provisions of Section 11 hereof, this Agreement shall continue in effect until
December 31, 2003 (the "Initial Term"), and shall thereafter automatically renew
for successive terms of one year each (a "Renewal Term") unless either party
shall notify the other party in writing at least ninety (90) days prior to the
end of the Initial Term or any Renewal Term of its election to terminate this
Agreement as of the end of the Initial Term or a Renewal Term, as the case may
be; provided, however, that the parties agree to explore in good faith the
extension of this Agreement during the ninety (90) days preceding the last
ninety (90) days of the Initial Term or any Renewal Term prior to giving any
such notice of termination.
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11. Termination for Cause. This Agreement may be terminated sooner than
stated in Section 10 hereof upon thirty (30) days written notice:
(a) by either party in the event that:
(i) the other party breaches or otherwise fails to
perform its obligations under this Agreement or
the Merger Agreement in any material respect; or
(ii) the other party abandons this Agreement, commits
any fraudulent act in connection with this
Agreement, is the subject of any insolvency
proceeding or commits any act of gross or willful
misconduct;
(b) by IMS in the event of the suspension, cancellation or
non-renewal of the certificate of authority of MMIC to
write professional liability insurance in either the State
of Minnesota or the State of Iowa;
(c) by IMS in the event it reasonably determines that the
professional liability coverages, premium charges or other
material aspects of the MMIC Program (including, without
limitation, the failure of the financial condition of
MMIC: (i) to meet standards for licensure in Iowa; (ii) to
permit an opinion of MMIC's independent auditor to be
issued without material qualification; or (iii) to achieve
the rating of A.M. Best of "B+" or higher) cease to be
competitive with other professional liability insurance
which is otherwise available to IMS member physicians in
the State of Iowa;
(d) by IMS in the event of the termination of the Voting
Trust, or the material breach of the Voting Trust by MMA
or the voting trustees named thereunder;
(e) by IMS in the event of the breach of the Office Lease by
MMIC;
(f) by MMIC in the event of the breach of the Office Lease by
IMS;
(g) by either party in the event of: (i) any affirmative act
of insolvency by the other party, or upon the appointment
of any receiver or trustee to take possession of the
property and/or business of such other party; (ii) upon
the wind-up, sale or
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sequestration of any party by any governmental authority;
(iii) upon the redemption of the Class B common stock in
MMIHC now owned by MMA; and (iv) upon any other material
change in the ownership or control of MMIHC or MMIC which
is determined by the board of directors of MMIC to be
inconsistent with the continued endorsement of its
products by IMS;
provided, however, if the acts or circumstances which entitle a party to
terminate this Agreement can be cured by the defaulting party within
seventy-five (75) days of the date of written notice, the defaulting party
provides prompt written notice of its election to cure such default and
thereafter proceeds to diligently and in good faith to cure such default, this
Agreement shall not be terminated if such a default is cured within such
seventy-five (75) day period.
12. No Assignments. The undertakings of the parties under this
Agreement are personal to such parties, and neither party may assign its rights,
duties or obligations under this Agreement without the written consent of the
other party, which consent shall not unreasonably be withheld. This Agreement
shall be binding upon and inure to the benefit of the successors and permitted
assigns of the parties hereto.
13. No Joint Venture or Agency. Nothing contained in this Agreement
shall be construed to constitute the arrangement between the parties as a joint
venture, partnership, agency relationship or other arrangement under which
either party shall be liable to third parties for any act or omission of the
other, and neither party shall have the power to bind or obligate the other.
14. Governing Law. This Agreement and its interpretation, validity and
performance shall be governed by the laws of the State of Iowa, without regard
to principles of conflicts of law.
15. Mutual Indemnification. Each party agrees to indemnify, defend and
hold harmless the other from and against all claims, suits and liabilities for
which the indemnified party is sought to be held liable, which arise out of acts
or omissions which the indemnified party did not participate in. The indemnity
obligations herein provided for shall survive termination of this Agreement.
16. Notices. Any notices, demands, consents or other communications
hereunder shall be in writing and, unless otherwise specifically provided, shall
be deemed effective when delivered personally or sent by facsimile transmittal
with first class mail with postage prepaid to follow or certified mail with
first class postage prepaid, addressed as follows:
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(a) If addressed to IMS:
Iowa Medical Society
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If addressed to MMIC:
Midwest Medical Insurance Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to either party at such other address as such party may specify to the other
party in a notice in compliance with this paragraph.
17. Arbitration. Any dispute, claim or controversy of any kind between
the parties arising out of this Agreement or involving the interpretation or
application of any provisions of this Agreement shall be submitted to
arbitration in Des Moines, Iowa, in accordance with commercial arbitration rules
of the American Arbitration Association and by either party appropriately
commencing the arbitration process under such rules. The parties shall attempt
in good faith to agree on a single arbitrator within thirty (30) days of
commencement of the arbitration process; but if the parties are unable to agree
upon a single arbitrator, either party may request the appointment of an
arbitrator by the American Arbitration Association, the appointment of which
shall bind both parties. Arbitration decisions shall be final and binding on
both parties unless the arbitration is fraudulent or so grossly erroneous as to
necessarily imply bad faith. General costs of arbitration (arbitrator's fees,
location costs, etc.) are to be shared by both parties equally, provided that
the arbitrator may choose to award general costs of arbitration against the
losing party if the arbitrator determines that the final position urged by the
losing party was not reasonable.
Each party shall be required to submit its proposed resolution of each
issue of such dispute, claim or controversy to the arbitrator and such
arbitrator shall be required to render a decision adopting in full one or the
other of such proposed resolutions on a per issue basis, and no compromises or
alternative resolutions shall be allowed or considered by the arbitrator without
the mutual consent of the parties.
18. Invalidity. In case one or more of the provisions hereof are
determined to be invalid, illegal or unenforceable in any respect, the validity
of the remaining provisions will in no way be affected, prejudiced or disturbed
thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first hereinabove set forth.
IOWA MEDICAL SOCIETY
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
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Name:▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
Its: Chairman of the Board
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Executive Vice President
MIDWEST MEDICAL INSURANCE COMPANY
By:/s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇, M.D.
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Name:▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇, M.D.
Its: Chairman of the Board
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chief Executive Officer
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