ACIC 8-K
AMERICAN COASTAL INSURANCE Corp (ACIC)
8-K
2024-05-14
For: 2024-05-09
View Original
Added on
April 12, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): May 9, 2024
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement
On May 9, 2024, American Coastal Insurance Corporation (“ACIC” or the “Company”) entered into a Stock Purchase Agreement (the "Sale Agreement") with Forza Insurance Holdings, LLC ("Forza") in which ACIC will sell and Forza will acquire 100% of the issued and outstanding stock of ACIC's subsidiary, Interboro Insurance Company ("IIC"). The aggregate purchase price for the shares will be equal to IIC's GAAP shareholders' equity on the closing date. Closing is subject to customary closing conditions, including New York Department of Financial Services ("NYDFS") approval of Forza's application for acquisition of control, and NYDFS approval of a new rate and form filing.
In addition, in connection with the Sale Agreement, IIC and SageSure Insurance Managers, LLC entered into a Program Administrator Agreement (the "Administrator Agreement"), dated as of May 9, 2024, and IIC entered into a Claims Services Agreement (the "Claims Agreement") with SageSure Capital Holdings, Inc., dated as of May 9, 2024 (collectively, the "Service Agreements"). Under the terms of the Service Agreements, SageSure Insurance Managers, LLC, will provide policy administration and underwriting services and SageSure Capital Holdings, Inc will provide claims administration services on behalf of IIC.
The foregoing descriptions of the Sale Agreement, the Administrator Agreement and the Claims Agreement are not complete and are qualified in their entirety by reference to the full text of these agreements, copies of which are filed as Exhibits 1.1, 1.2 and 1.3, respectively to this Current Report on Form 8-K and are incorporated in this Item 1.01 by reference.
Item 9.01. Financial Statements and Exhibits
| Exhibit No. | Description | |||||||
| Stock Purchase Agreement, dated as of May 9, 2024, between the Company and Forza Insurance Holdings, LLC. | ||||||||
| Program Administrator Agreement, dated as of May 9, 2024, between the Company and SageSure Insurance Managers, LLC. | ||||||||
| Claims Services Agreement, dated as of May 9, 2024, between the Company and SageSure Capital Holdings, Inc. | ||||||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |||||||
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned thereunder duly authorized.
| AMERICAN COASTAL INSURANCE CORPORATION | ||||||||
| May 14, 2024 | By: | /s/ B. Bradford Martz | ||||||
| B. Bradford Martz, President | ||||||||
Execution Version ______________________________________________ STOCK PURCHASE AGREEMENT BETWEEN FORZA INSURANCE HOLDINGS, LLC and AMERICAN COASTAL INSURANCE CORPORATION May 9, 2024 ___________________________ THIS DOCUMENT IS INTENDED SOLELY TO FACILITATE DISCUSSIONS AMONG THE PARTIES. THIS DOCUMENT IS NOT INTENDED TO CREATE NOR WILL IT BE DEEMED TO CREATE A LEGALLY BINDING OR ENFORCEABLE OFFER OR AGREEMENT OF ANY TYPE OR NATURE, UNLESS AND UNTIL AGREED TO AND EXECUTED BY THE PARTIES.
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) dated as of May 9, 2024 (“Effective Date”) is made and entered into by and between Forza Insurance Holdings, LLC, a Delaware limited liability company (the “Purchaser”), and American Coastal Insurance Corporation, a Delaware corporation (the “Seller”) for the purchase of one hundred percent (100%) of the issued and outstanding shares of Interboro Insurance Company, a New York licensed domestic stock insurance company (the “Insurer”). Seller and Purchaser are each hereinafter referred to individually herein as a “Party” and collectively as the “Parties” with reference to the following: WHEREAS, Seller is the sole owner of 100% of the issued and outstanding shares of Insurer, constituting 100 shares of common stock at $300.00 per share par value (the “Shares”); WHEREAS, Insurer is engaged primarily in the business of writing property and casualty insurance in the state of New York; WHEREAS, the Parties intend that Seller shall convey at Closing the Shares in consideration of Purchaser’s delivery of the Purchase Price and other items of consideration stated herein; and WHEREAS, the Parties acknowledge that the closing of the transactions contemplated herein shall be subject to the review and approval of the DFS pursuant to an application under §1506 of the New York Insurance Law to acquire control of a New York domestic insurance company. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: ARTICLE I PURCHASE AND SALE OF SHARES AND CLOSING 1.01. Purchase and Sale of the Shares. At the Closing, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, all of the issued and outstanding Shares, free and clear of all Encumbrances (other than any restrictions on subsequent transfer generally imposed on equity securities under securities and insurance Laws or Encumbrances created by or as a result of actions taken by Purchaser or any of its Affiliates), on the terms and subject to the conditions set forth in this Agreement. 1.02. Purchase Price. (a) The aggregate purchase price for the Shares (the “Purchase Price”) shall be equal to the Insurer’s shareholders’ equity (the “Insurer’s Shareholders’ Equity”) calculated as of 12:01 a.m. Eastern Time on the Closing Date (before giving effect to the Closing) prepared in accordance with GAAP and past practices of the Insurer. Seller shall reasonably and in good faith prepare a statement (the “Estimated Equity Statement”) containing an estimated balance sheet of the Insurer as of 12:01 a.m. Eastern Time on the Closing Date (before giving effect to the Closing) prepared in accordance with GAAP and past practices of the Insurer (the “Estimated Closing Balance
2 Sheet”) and setting forth the estimated shareholders’ equity of the Insurer as of 12:01 a.m. Eastern Time on the Closing Date as derived from such Estimated Balance Sheet (the “Estimated Shareholder’s Equity”) and Seller shall deliver such Estimated Equity Statement to Purchaser at least five (5) Business Days prior to Closing. (b) At the Closing, the Purchaser shall pay to Seller and/or as directed in writing by the Seller an amount equal to the Estimated Shareholders’ Equity (the “Estimated Purchase Price”) by wire transfer of immediately available U.S. funds to the account(s) specified in writing at least three (3) Business Days prior to the Closing Date by Seller to Purchaser. (c) As soon as practicable after the Closing Date, but in no event later than thirty (30) Business Days after the Closing Date, Purchaser shall reasonably and in good faith prepare a statement (the “Equity Statement”) containing an actual balance sheet of the Insurer as of 12:01 a.m. Eastern Time on the Closing Date (before giving effect to the Closing) prepared in accordance with GAAP and past practices of the Insurer (the “Closing Balance Sheet”) and setting forth the Insurer’s Shareholders’ Equity as of 12:01 a.m. Eastern Time on the Closing Date as derived from such Closing Balance Sheet. As soon as practicable, but in no event later than fifteen (15) days following the receipt by Seller of the Equity Statement, if Seller has any good faith objections to such Equity Statement and/or any of the attachments thereto or the calculations therein, then Seller shall deliver to Purchaser a detailed written statement (the “Objections Statement”) describing (i) which items on such Equity Statement Seller believes have not been prepared in accordance with this Agreement, (ii) the basis for Seller’s disagreement with the calculation of such items, and (iii) Seller’s proposed dollar amount for each item in dispute. If Seller fails to deliver an Objections Statement within such fifteen (15) day period or Seller otherwise gives written notice to Purchaser that Seller agrees to the applicable Equity Statement, then the Equity Statement shall become final and binding on all Parties. Seller shall be deemed to have accepted and agreed with all amounts and items contained or reflected in the Equity Statement to the extent such amounts or items are not disputed in the Objections Statement. If Seller delivers an Objections Statement within such fifteen (15) day period, then Seller and Purchaser will use commercially reasonable efforts to resolve any such disputes within thirty (30) days (or such longer period as the Parties may agree in writing) after Purchaser has received the Objections Statement (the “Resolution Period”), and any written resolutions by them as to any disputed amounts shall be final, binding and conclusive. If at the end of the Resolution Period there are any matters which remain in dispute, then such amounts or items that remain in dispute will be resolved by a national or regional accounting firm mutually selected within ten (10) days of the expiry of the Resolution Period by Seller and Purchaser (the “Accountants”). The Accountants will prepare and deliver a written report to Purchaser and Seller and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert to determine, based solely on the provisions of this Section 1.02(c) (in accordance with GAAP and past practices of the Insurer) and the presentations by Seller and Purchaser, and not by independent review, only those issues still in dispute. The Accountants’ determination of such unresolved disputes will be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Purchaser than is set forth in the Equity Statement or any more favorable to Seller than is proposed in the Objections Statement. Each Party shall bear its own costs and expenses in connection with the Accountants’ review. Purchaser and Seller shall each be liable for the respective percentage of the aggregate fees and
3 disbursements of the Accountants equal to the proportion of their respective positions that were confirmed or rejected by the Accountants. (d) If the final calculation of the Insurer’s Shareholders’ Equity (as adjusted in accordance with Section 1.02(c)) (the “Final Purchase Price”) exceeds the Estimated Shareholders’ Equity, such excess shall be paid by Purchaser to Seller within three (3) Business Days of such final determination via wire transfer of immediately available funds to the bank account(s) designated in writing by Seller. (e) If the Final Purchase Price is less than the Estimated Shareholders’ Equity, such deficit shall be paid by Seller to Purchaser within three (3) Business Days via wire transfer of immediately available funds to the bank account(s) designated in writing by Purchaser. 1.03. Withholding. Purchaser shall be entitled to deduct and withhold any Taxes required by Law to be deducted or withheld from any payment to Seller hereunder, and any amounts so withheld or deducted shall, to the extent duly and timely remitted to the appropriate Tax Authority, be treated as paid to Seller for all purposes of this Agreement. If Purchaser is required by Law to deduct or withhold any Taxes from any payment to Seller hereunder, Purchaser shall (a) promptly (but no later than ten (10) Business Days before such payment) notify Seller in writing as to the basis for and amount of any such deduction or withholding and (b) reasonably cooperate with Seller (including providing to Seller any appropriate statements, forms or other documents) to reduce or eliminate such deduction or withholding, to the extent permitted by applicable Law. Purchaser shall provide reasonable evidence of the payment of any amounts withheld to the relevant Tax Authority. 1.04. Closing; Closing Deliveries by Seller and Purchaser. (a) Closing. Subject to the terms and conditions of this Agreement, and unless this Agreement is terminated pursuant to the provisions of Article VII, the transactions contemplated by this Agreement shall be consummated (the “Closing”) on the first day of the month that is at least five (5) Business Days after the date that all of the conditions set forth in Article VI have been satisfied or waived by the Party entitled to waive such conditions (except for those conditions which, by their nature, can only be fulfilled at the Closing, but subject to fulfillment of such conditions or the waiver thereof by the Party entitled to waive such conditions), or such other date, or at such other time or place as shall be agreed upon by the Parties. Subject to the terms and conditions of this Agreement, the Closing shall take place by teleconference or through electronic exchange of transaction documents on the Closing Date at such time as shall be mutually determined by the Parties (or if no time is agreed, at 10:00 a.m. Eastern Standard Time). The transactions contemplated by this Agreement shall be deemed to be consummated as of 12:01 a.m. Eastern Standard Time on the date on which the Closing occurs (the “Closing Date”), and all actions taken at the Closing shall be deemed to have occurred simultaneously and shall be deemed effective as of the dates and times specified in this Agreement unless another date or time is specified in another ancillary agreement. (b) Seller’s Closing Deliveries. At the Closing, Seller shall deliver to Purchaser the following:
4 (i) a share certificate or certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer; and (ii) the Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Seller at or prior to the Closing pursuant to Section 6.02 of this Agreement. (c) Purchaser’s Closing Deliveries. At the Closing, Purchaser shall deliver to Seller: (i) the Estimated Purchase Price, paid to the Seller in accordance with Section 1.02; and (ii) the Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Purchaser at or prior to the Closing pursuant to Section 6.03 of this Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser that the statements contained in this Article II are true and correct as of the date of this Agreement, and will be true and correct as of the Closing Date except where a specific date is noted herein, in which case such statements are true and correct as of such date, in each case subject to the disclosure schedules delivered by Seller to Purchaser prior to the execution and delivery of this Agreement (collectively, the “Seller Disclosure Schedule”), as follows: 2.01. Status and Authority of Seller. (a) Seller is a corporation duly organized, validly existing and in good standing under the Laws of the state of its incorporation and has all requisite corporate power and authority to own, license, use, lease and operate its material Assets and Properties and to carry on its business (including the Business) as it is now being conducted in all material respects. (b) Seller has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations and the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the performance by Seller of its obligations and the transactions contemplated by this Agreement have been approved by the board of directors of Seller, and no other corporate or other proceedings on the part of Seller are necessary to authorize the execution and delivery of this Agreement by Seller and the performance by Seller of its obligations and the transactions contemplated by this Agreement. Seller has the right and capacity to (i) make, execute and deliver this Agreement and (ii) perform Seller’s obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Seller and constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and general principles of equity (whether considered in equity or at Law).
5 (c) The execution and delivery by Seller of this Agreement and the performance by Seller of its obligations and the transactions contemplated by this Agreement does not (i) conflict with or result in a breach of any provision of any certificate of incorporation or bylaws (or similar organizational documents) of Seller or the Insurer, (ii) require any consent of or other action by any Person under, result in a violation or breach of or constitute a default (or an event that, with or without notice or lapse of time or both, would constitute a default) under, result in the creation or imposition of an Encumbrance (other than a Permitted Encumbrance) upon any property, assets or rights of Seller or the Insurer pursuant to, or result in the acceleration of or create in any party the right to terminate, modify, cancel, accelerate or result in any other change of any right or obligation or the loss of any benefit under any contract or other instrument of any kind to which Seller or the Insurer is now a party or by which any of their respective properties, assets or rights are bound or any Permit affecting the assets or business of the Insurer or (iii) violate any Law or Order applicable to Seller or the Insurer or any of their respective assets, except in the case of clause (ii) as would not, individually or in the aggregate reasonably be expected to have a Material Adverse Effect. (d) Except as set forth in Schedule 2.01(d), no material declaration, filing or registration with, or notice to, or authorization, consent, Order or approval of, any Governmental Authority or other Person is required to be obtained in connection with or as a result of the execution and delivery and performance of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. 2.02. Organization of the Insurer and Insurance Licenses. The Insurer has full power and authority to conduct its business as and to the extent now conducted, and to own, use and lease its assets and properties. The Insurer is duly incorporated and licensed as an insurance company operating on an admitted basis in the state of New York and is validly existing and in good standing (or the equivalent thereof) under the Laws of the state of New York. Seller has furnished to Purchaser true and complete copies of the articles of incorporation and the bylaws of the Insurer, as amended, and copies of any certificates of authority of the Insurer in effect as of the date hereof. 2.03. Capitalization of the Insurer. The total authorized capital stock of the Insurer consists solely of the Shares, which consist of one hundred (100) common stock shares at a par value per share of three hundred dollars ($300.00), all of which one hundred (100) shares are currently issued and outstanding. No shares of the Insurer’s authorized capital stock are held in treasury or are reserved for any purpose. All of the Shares are duly authorized, validly issued, fully paid and non-assessable, and the Seller is the owner of all Shares. There are no Options, warrants or other rights, agreements, arrangements or commitments to which the Insurer is a party of any character relating to the issuance of capital stock of, or other equity interest in the Insurer obligating the Insurer to grant, issue, sell or register for sale any shares of the capital stock of, or other equity interests in, the Insurer by sale, lease, license or otherwise. There are no obligations, contingent or otherwise, of the Insurer to (a) repurchase, redeem or otherwise acquire any shares of the Insurer’s authorized capital stock or (b) provide funds to, or make any investment in (in the form of a loan, capital contribution or otherwise) or provide any guarantee with respect to the obligations of any other Person, other than Insurance Contracts issued by the Insurer in the normal course of its business. As of the Effective Date and Closing Date, Seller’s ownership of the Shares is, and will be, free and clear of all Encumbrances (other than any restrictions on subsequent
6 transfer generally imposed on equity securities under securities and insurance Laws or Encumbrances created by or as a result of actions taken by Purchaser or any of its Affiliates). 2.04. Subsidiaries. The Insurer does not hold or beneficially own any direct or indirect controlling interest in any Person (whether it be common or preferred stock or any comparable ownership interest in any Person that is not a corporation), other than (a) with respect to investments set forth on Schedule 2.04 or (b) as part of its investment portfolio. 2.05. Financial Statements. (a) Complete copies of the audited Statutory Statements of admitted assets, liabilities, and capital and surplus of the Insurer as of December 31 in each of the years ending 2023, 2022 and 2021, and the related statements of operations, changes in capital and surplus, and cash flows for the years then ended on such dates (each of the foregoing financial statements, including the notes thereto, are referred to collectively as the “Annual Financial Statements” or the “Financial Statements”) have been made available by Seller to the Purchaser. The Financial Statements have been prepared in accordance with SAP applied on a consistent basis throughout the periods involved. The Financial Statements are based on the Books and Records of the Insurer, and fairly present in all material respects the statutory financial condition of the Insurer as of the respective dates they were prepared and the results of their operations and their cash flows for each of the periods indicated. (b) Seller has made available to Purchaser complete and correct copies of the annual statements of the Insurer filed with DFS for the years 2023, 2022 and 2021, together with all exhibits and schedules thereto (the “Annual Regulatory Statements” or the “Regulatory Statements”). The Regulatory Statements of the Insurer have been prepared in accordance with SAP throughout the periods involved and in accordance with the Books and Records of the Insurer, except as expressly set forth or disclosed in the notes, exhibits or schedules thereto. The Regulatory Statements fairly present in all material respects the statutory assets, liabilities and capital and surplus of the Insurer, as of the dates thereof, and the results of its operations, changes in surplus and cash flows for each of the periods indicated in accordance with SAP, applied consistently with past practice. There are no permitted practices used by the Insurer in the preparation of the Financial Statements or the Regulatory Statements. Since January 1, 2020 to the date hereof, no material deficiency has been asserted by any Governmental Authority with respect to any of the Regulatory Statements that has not been resolved to the satisfaction of the applicable Governmental Authority. (c) Except as set forth on Schedule 2.05(c), the Insurer maintains internal accounting controls consistent with industry standards for similarly situated insurers to provide reasonable assurance that (i) all material transactions are executed with management’s authorization and (ii) all material transactions are recorded as necessary to permit preparation of the financial statements of the Insurer in accordance with GAAP or SAP, as applicable, and to maintain accountability for such assets. As of the date of this Agreement, (x) there are no material deficiencies in the design or operation of the Insurer’s internal controls over financial reporting that could reasonably be expected to adversely affect in any material respect the Insurer’s ability to record, process, summarize and report financial data or material weaknesses in internal controls over financial reporting, and (y) to the Seller’s Knowledge, there has been no material violation of
7 accounting rules and practices that involved any employee of the Insurer who has a significant role in the Insurer’s internal controls over financial reporting. (d) The Books and Records of the Insurer have been maintained in all material respects in compliance with all applicable Laws and consistent with industry standards for similarly situated insurers. 2.06. Undisclosed Liabilities. As of the date hereof, there are no debts or liabilities, whether accrued or fixed, absolute or contingent, matured or unmatured, of the Insurer, of the type required to be disclosed in a balance sheet of the Insurer prepared in accordance with SAP, other than (a) any such debts or liabilities reflected or accrued in, or disclosed in the notes to, the Financial Statements or Statutory Statements, (b) debts and liabilities that have arisen after the date of the Financial Statements and Statutory Statements in the ordinary course of business, (c) debts and liabilities that are described in Schedule 2.06 and/or (d) liabilities on policies of insurance issued by the Insurer and other liabilities incurred in the normal course of business. 2.07. Taxes. (a) Except as set forth on Schedule 2.07(a): (i) The Insurer has duly filed all income and other material Tax Returns required to be filed by the Insurer and all such Tax Returns are true, correct and complete, and all material Taxes (whether or not shown on any Tax Return) due in connection with such Tax Returns or otherwise due with respect to the Insurer have been timely paid in full. In addition, the Seller has duly filed all income and other material Tax Returns of which the Insurer is a member of the consolidated, combined or unitary group, and all such Tax Returns are true, correct and complete, and all material Taxes (whether or not shown on any Tax Return) due in connection with such Tax Returns or otherwise due with respect to the Insurer have been timely paid in full. No claim has ever been made in writing by a Governmental Authority in a jurisdiction where the Insurer does not file Tax Returns that it is or may be subject to material taxation by that jurisdiction. The Insurer is not currently the beneficiary of any extension of time within which to file any material Tax Return, and no such request for an extension has been filed or is currently pending. (ii) There is no audit or other Action or unresolved claim for assessment or collection, ongoing or pending or, to the Seller’s Knowledge, threatened in writing, by, or present dispute with, a taxing authority for assessment or collection from the Insurer of any material Taxes of any nature (or Seller with respect to Tax matters relating materially to the Insurer). No Governmental Authority has asserted in writing any deficiency, claim or issue with respect to material Taxes or any adjustment to material Taxes against the Insurer with respect to any taxable period which has not previously been paid. (iii) The Insurer has not entered into a written agreement or waiver extending any statute of limitations relating to the payment or collection of any material Taxes of the Insurer that has not expired. (b) The Insurer has complied in all material respects with all applicable Laws relating to the payment and withholding of all Taxes that the Insurer has been required to collect or
8 withhold and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable Laws, and the Insurer has complied with all material reporting and recordkeeping requirements under applicable Law related thereto. (c) As of the Closing, the Insurer will not own, directly or indirectly, any interest in any entity classified as a partnership for United States federal income Tax purposes. (d) There are no Liens for Taxes upon the Assets and Properties of the Insurer except Liens for current Taxes not yet due or payable or Liens imposed for nonpayment of Taxes which are being contested in good faith by appropriate proceedings and, in each case which are disclosed on Schedule 2.07(a) and are sufficiently accrued or reserved against in the Statutory Statements. (e) The Insurer is not a party to any Tax allocation, sharing, indemnity or reimbursement Contract (other than customary Contracts the primary subject matter of which is not Taxes). The Insurer is not liable for the Taxes of any other Person as a transferee or successor. (f) For U.S. federal income Tax purposes, the Insurer has for the preceding ten (10) year period been treated as a corporation under subchapter C of the Code. (g) The unpaid Taxes of the Insurer for all taxable periods (or portions thereof) ending (A) at the end of the last fiscal quarter preceding the Closing Date did not, as of such date, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the balance sheet of the Insurer dated as of such date (the “Interim Balance Sheet”) and (B) on or before the Closing Date will not, as of the Closing Date, exceed that reserve as adjusted to reflect the ordinary operations of the Insurer after the date of the Interim Balance Sheet and through the Closing Date in accordance with the past customs and practice of the Insurer in filing its Tax Returns. (h) The Insurer has not entered into any agreement, contract, arrangement or plan that has resulted or would result, separately or in the aggregate, in a payment of any “excess parachute payments” within the meaning of Section 280G of the Code (without regard to the exceptions set forth in Sections 280G(b)(4) and 280G(b)(5) of the Code) or an excise Tax to the recipient of such payment pursuant to Section 4999 of the Code. (i) The Insurer has not participated or been a “material advisor” or “promoter” (as those terms are or have been defined in Sections 6111 and 6112 of the Code) in any “listed transaction” within the meaning of Sections 6011, 6662A, and 6707A of the Code (or any corresponding or similar provision of applicable Tax Law). (j) The Insurer has not within the prior five (5) calendar years constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for Tax-free treatment under Sections 355 or 361 of the Code. (k) The Insurer is not subject to Tax in any country other than the United States by virtue of having a permanent establishment or other place of business or having engaged in a trade or business or branch operations in such non-U.S. country.
9 (l) The Insurer is not a party to or subject to (i) any “closing agreement” as defined in Section 7121 of the Code or any similar or predecessor provision thereof under the Code or other applicable Tax Law that governs, controls or otherwise relates to any open Tax period or (ii) any issued, requested, or otherwise outstanding private letter rulings, technical advice memoranda or similar agreements or rulings, in each case that relates to material Taxes of the Insurer. (m) Nothing in this Section 2.07 or otherwise in this Agreement shall be construed as a representation or warranty with respect to any Tax position that Purchaser and its Affiliates (including the Insurer after the Closing) may take in or in respect of a taxable period (or portion thereof) beginning on or after the Closing Date. (n) The Seller has delivered to the Purchaser correct and complete copies of all federal and state income Tax Returns described in Section 2.07(a)(i), examination reports, and statements of deficiencies assessed against or agreed to by or on behalf of the Insurer since January 1, 2021. 2.08. Legal Proceedings. Except (a) for litigation with respect to claims pursuant to Insurance Contracts issued by the Insurer disclosed on Schedule 2.08(a), or (b) as disclosed in Schedule 2.08(b), as of the date hereof there (i) are no pending or, to the Knowledge of Seller, threatened, Actions, outstanding Orders and no unsatisfied judgments, penalties or awards against or otherwise affecting the Insurer or any of its properties, assets or rights and (ii) is not any Action challenging the validity or propriety of, or that have the effect of preventing, materially delaying or making illegal or otherwise interfering with any of the transactions contemplated by this Agreement. 2.09. Compliance with Laws. (a) From January 1, 2020 through the date hereof, the Insurer has not violated in any material respect any material requirement of applicable Law in the conduct of its operations. (b) From January 1, 2017 through December 31, 2019, the Insurer has not violated in any material respect any of the New York Laws set forth under the “Violations” section in DFS Consent Order No. 2023-0053-S. 2.10. Real Property. The Insurer does not own any direct, indirect or beneficial interest in any real property. Schedule 2.10 sets forth a true and complete listing, as of the date of this Agreement, of all Leases to which the Insurer is a party. Seller has delivered to Purchaser correct and complete copies of the Leases (as amended or supplemented). Each Lease is legal, valid, binding, in full force and effect, and enforceable in accordance with its respective terms against the Insurer and, to the Knowledge of Seller, against the other parties thereto except as such enforceability may be limited by applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and general principles of equity (whether considered in equity or at Law). 2.11. Contracts. (a) Schedule 2.11(a) sets forth a true and complete list of all of the following Contracts (other than Reinsurance Contracts, which are the subject of Section 2.15) to which the Insurer is a
10 party or by which any of its assets are bound, in each case, that is in effect as of the date hereof (each such contract, together with Reinsurance Contracts, a “Material Contract”): (i) all partnership, joint venture, shareholders’ or other similar Contracts with any Person; (ii) all Contracts with Seller or any Affiliate of Seller; (iii) all Contracts that (A) contain covenants binding upon the Insurer that restrict the ability of the Insurer to compete in any business or in any geographic area, or (B) grant any exclusive rights to make, sell or distribute the Insurer’s products (including lines or specific policy forms of insurance) or services or otherwise prohibit or limit in any material respect the right of the Insurer to develop, manufacture, market, sell or distribute any products or services; (iv) all Contracts under which the Insurer has advanced or loaned any funds or has guaranteed any obligations of another Person; (v) all Contracts (A) involving payments by or to the Insurer in excess of $10,000 during the preceding twelve (12) months and (B) that cannot be cancelled or terminated by the Insurer on less than six (6) months’ notice without penalty, excluding claim payments under Insurance Contracts in accordance with their terms; (vi) all Contracts that are in respect of employment, compensation bonus, retention, severance pay, termination pay, change of control and deferred compensation and other similar Contracts, between the Insurer and any Transferred Employee or consultant or contractor to the Insurer; (vii) any Contract under which any former employee or independent contractor has any ongoing material obligation to the Insurer as of the Effective Date (including, without limitation, any confidentiality, non-competition, non-solicitation or non- interference obligations); (viii) any Contract containing (A) a right of first refusal or right of first offer, right of first negotiation, most-favored-nation or similar right in favor of a Person other than the Insurer or (B) an exclusivity requirement or similar provision binding on the Insurer; (ix) all Contracts that relate to the settlement of any Actions, other than (A) releases immaterial in nature or entered into with former employees or independent contractors of the Insurer in the ordinary course of business in connection with the cessation of such employee’s or independent contractor’s employment with or services to the Insurer, (B) settlement agreements for cash only (which have been paid or accrued for), (C) settlement agreements entered into prior to January 1, 2020 under which the Insurer has no continuing obligations, liabilities or rights (excluding releases) or (D) settlements of claims pursuant to Insurance Contracts issued by the Insurer; (x) any guarantee by Seller or any Affiliate of Seller (other than the Insurer) in favor of or in respect of any obligations of the Insurer;
11 (xi) promissory notes, mortgages, indentures, loan or credit agreements, security agreements and other agreements and instruments or any other debt relating to the borrowing of money or extension of credit to the Insurer or the direct or indirect guarantee by the Insurer of any obligation for borrowed money or other debt of any Person or any other liability of the Insurer in respect of Indebtedness for borrowed money or other debt of any Person, in each case in excess of $100,000; (xii) the in-force Producer Contracts with the twenty-five (25) largest Producers (measured by the aggregate gross written premium of the Business) for the twelve (12) month period ended on the last day of the month before the date of this Agreement; (xiii) any collective bargaining agreement; (xiv) any agreements pursuant to which the Insurer (A) is licensed or otherwise permitted to use any Intellectual Property (excluding licenses for commercially available “off-the-shelf” software licensed to the Insurer for a one-time or annual fee of less than $10,000) and (B) licenses or otherwise permits any Person to use any Intellectual Property owned by the Insurer (other than non-exclusive licenses to suppliers or customers in the ordinary course of business); (xv) any contract or agreement that relates to the acquisition or disposition by the Insurer of any business or operations, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of the Insurer; (xvi) any investment advisory agreements or any other contracts relating to investment management, investment advisory or subadvisory services to which the Insurer is a party; (xvii) any third-party administration contracts; (xviii) any Contract that provides for the assumption of any Tax liability of any Person; and (xix) any Contract with a Governmental Authority. (b) As of the date of this Agreement, each Material Contract to which the Insurer is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against the Insurer, and, to the Knowledge of Seller, each other party thereto, in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and general principles of equity (whether considered inequity or at Law). Neither the Insurer nor, to the Knowledge of Seller, any other party to each such contract, is as of the date hereof in material violation or breach of, or in material default under, nor to the Seller’s Knowledge has there occurred as of the date hereof an event or condition that with the passage of time or giving of notice (or both) would constitute a material default under, or permit the termination of, any such contract. Except as set forth on Schedule 2.11(b), as of the date hereof the Insurer has not received written notice of the cancellation or termination of any Material Contract. Except as set forth on Schedule 2.11(b), to the Knowledge of Seller, as of the date hereof no other party to a Material Contract has threatened to cancel or not
12 renew, any Material Contract, whether as a result of the consummation of the transactions contemplated by this Agreement or otherwise. (c) Schedule 2.11(c) sets forth a true and complete list of all in-force Producer Contracts. 2.12. Employment Matters. (a) Schedule 2.12(a) contains a complete and accurate list, as of the date hereof, of all (i) Employees who perform services for the Insurer and all leased employees who perform services for the Insurer persons under a leasing, contract worker, or similar arrangement with a third-party employer, or (ii) as an independent contractor (excluding accounting, tax, and legal service providers), along with, for each Person described in clauses (i) and (ii), such Person’s workplace location, his or her date(s) of hire, position and title, current rate of base salary and target annual bonus or incentive opportunity, whether such Person is classified as exempt or non-exempt, any accrued sick leave and accrued vacation of each such Person as of the Effective Date and whether such Person is absent from active employment and, if so, the date such Person became inactive, the reason for inactive status and, if applicable, the anticipated date of return to active employment. Except as disclosed on Schedule 2.12(a), the Insurer does not have any unsatisfied liability to any previously terminated employee or independent contractor of the Insurer. (b) Since January 1, 2020 to the date hereof, the Insurer has complied in all material respects with all applicable Laws concerning labor and employment and the terms of each applicable employment or services agreement in respect of all of their respective current and former Employees and independent contractors of the Insurer, including without limitation such Laws relating to wages, hours, discrimination in employment, retaliation, worker classification, immigration, tax withholding and reporting, workers’ compensation, unemployment insurance and employment termination. Since January 1, 2020 to the date hereof, to the Knowledge of Seller, the Insurer (i) has not received notice of any actual or alleged violation of any such Law or breach of any such agreement, and there are no grounds therefor, and (ii) has not been subject to or received notice of an audit or investigation by any Governmental Authority relating to any employment- related matter. (c) Except as set forth on Schedule 2.12(c), all employees who work for, or on behalf of, the Insurer, and who will be offered employment by the Purchaser are employees at-will or otherwise employed such that the Insurer may lawfully terminate their employment at any time, with or without cause, without creating any material cause of action against the Insurer or otherwise giving rise to any material liability of the Insurer for wrongful discharge, breach of contract or tort or any other similar cause at Law or in equity. (d) No Transferred Employee is subject to or otherwise bound by any Contract, including any confidentiality, non-competition, non-solicitation, or proprietary rights agreement between such Employee, and any other Person that would prohibit the performance of his or her duties as an employee, director, consultant or independent contractor of the Insurer’s business as currently conducted, or restrict materially the ability of the Insurer to conduct such business in the ordinary course of business.
13 (e) As of the date hereof, the Insurer is not a party to, otherwise bound by, subject to or has any liability with respect to, any collective bargaining agreement, labor union contract or other arrangement or understanding with a labor union or labor organization, and there are no unions or other organizations representing, purporting to represent or attempting to represent any Employees. To the Seller’s Knowledge, as of the date hereof, there are no activities or proceedings of any labor union or other Person to organize any of the Seller’s Employees. As of the date hereof, there is no labor strike, labor dispute, slowdown, work stoppage or lockout pending or, to the Knowledge of Seller, threatened against or affecting the Insurer that would reasonably be expected to result in a material liability to the Insurer. (f) The Insurer has not effectuated a “plant closing” or “mass layoff” as those terms are defined in the WARN Act, affecting in whole or in part any site of employment, facility, operating unit or Employee, without complying with all provisions of the WARN Act, or implemented any early retirement, separation or window program within the twelve (12) months prior to the date of this Agreement, nor has the Insurer announced any such action or program for the future. 2.13. Employee Benefit Plans. (a) Schedule 2.13(a) sets forth a complete and accurate list of all material employee benefit plans as defined in Section 3 of the Employee Retirement Income Security Act of 1974 (93 P.L. 406), as amended (“ERISA”) and any collective bargaining, stock purchase, stock Option, employment compensation, deferred compensation, pension, retirement, post-retirement, employment, consulting, severance, termination, change-in-control, separation, retention, vacation, sickness, life or other insurance, welfare, fringe benefit or incentive bonus contract, agreement, plan, program, policy, payroll practice or arrangement that is sponsored, maintained, administered or contributed to by Seller or by any entity that is (or at any relevant time was) a member of a controlled group of corporations, under common control or in an affiliated service group with the Insurer within the meaning of Section 414(b), (c) or (m) of the Code (each, an “ERISA Affiliate”), excluding the Insurer, or to which the Insurer or any ERISA Affiliate has any obligation to contribute (collectively, the “Employee Plans”). The Insurer does not sponsor, maintain or administer any of the Employee Plans, and, after the Closing, will not have any obligations with respect to any of the Employee Plans, including any defined benefit pension plan. Except as required by Law or the terms of an Employee Plan, as of the date hereof, the Insurer has no plan or commitment to establish any new material Employee Plan or amend in any material respect an existing Employee Plan. (b) Since January 1, 2020 to the date hereof, each Employee Plan in which a Transferred Employee participates has been administered and operated in compliance in all material respects with its terms and with any applicable Law, including the applicable provisions of ERISA and the Code, and, to the Seller’s Knowledge, there is no existing circumstance that could be reasonably expected to cause any failure of such compliance. All contributions, premiums and other payments required to be made with respect to any Transferred Employee to an Employee Plan have been timely made, accrued or reserved for. (c) [Intentionally omitted.]
14 (d) [Intentionally omitted.] (e) Each Employee Plan that is subject to Section 409A of the Code (I.R.C. § 409A) in which a Transferred Employee participates has been operated and administered in compliance with Section 409A of the Code (I.R.C. § 409A). There is no Contract, agreement or plan to which the Insurer is a party or by which it is bound to compensate any Transferred Employee for excise Taxes that may be required pursuant to Section 4999 of the Code (I.R.C. § 4999) or any Taxes required by Section 409A of the Code (I.R.C. § 409A). (f) Except for the defined benefit pension plan previously maintained by the Insurer for which the Insurer does not have any outstanding liabilities, neither the Insurer nor any ERISA Affiliate has ever sponsored, maintained, contributed to or been obligated to sponsor, maintain or contribute to, or has any actual or contingent liability under, any defined benefit plan (as defined in Section 3(35) of ERISA) or any multiemployer plan (within the meaning of Section 4001(a)(3) of ERISA), or that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, and neither the Insurer nor any ERISA Affiliate would reasonably be expected to incur any liability under Title IV of ERISA based on any Employee Plan in effect as of, or terminated prior to, the date hereof. No event has occurred, and no condition exists, that has subjected, or would reasonably be expected to subject, the Insurer to any Tax, fine, Lien, penalty or other liability imposed by ERISA, the Code or any other applicable Law, either directly or by reason of the Insurer’s affiliation with any ERISA Affiliate. (g) The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement (either alone or in conjunction with any other event) will not: (i) result in any material payment or benefit becoming due or payable, or required to be provided, to any Transferred Employee, consultant or independent contractor of the Insurer; (ii) materially increase the amount of, or accelerate the time of payment of, any benefit or compensation payable under any Employee Plan or other employment arrangement to any Transferred Employee; or (iii) result in any violation or breach of or default under, or limit the ability of the Insurer to amend, modify or terminate, any Employee Plan. 2.14. Insurance Policies. The Insurer, Seller or their respective Affiliates maintain commercially reasonable policies of insurance covering the Insurer in a form and amount as is customary for the Insurer’s operations. As of the date hereof, there is no claim pending under any of such policies as to which coverage has been questioned, denied or disputed. To the Seller’s Knowledge, as of the date hereof, there is no threatened termination of, or pending material premium increase with respect to, any such policies. 2.15. Reinsurance Agreements.
15 (a) Schedule 2.15(a) sets forth a complete list of all Reinsurance Contracts in effect as of the date hereof that: (i) has claims outstanding as of the date hereof; or (ii) was entered into within the last three years. (b) All benefits to the Insurer and all amounts owing by the Insurer in respect of the Reinsurance Contracts are accounted for on the Statutory Statements in accordance with SAP. There are no separate written or oral agreements between the Insurer and any assuming reinsurer that would under any circumstances, reduce, limit, mitigate or otherwise affect any actual or potential recoveries by the Insurer under any Reinsurance Contract, other than inuring Contracts that are explicitly defined or otherwise referred to in such Reinsurance Contract. (c) To the Knowledge of Seller, as of the date hereof (i) there has not been any dispute with respect to any material amounts recoverable or payable by the Insurer pursuant to any Reinsurance Contract and (ii) no reinsurer party to a Reinsurance Contract has denied coverage with respect to any current material claim. 2.16. Reserves. (a) Seller has delivered to Purchaser a copy of all material actuarial reports and memoranda prepared by external actuaries with respect to the Insurer’s business since January 1, 2022 (the “Actuarial Memoranda”) and all attachments, addenda, supplements and modifications to the Actuarial Memoranda or such other actuarial reports. (b) The reserves and other liabilities for claims, losses (including, without limitation, incurred but not reported losses), loss adjustment expenses (whether allocated or unallocated) and unearned premiums of the Insurer recorded in the Financial Statements and the Regulatory Statements, as of the respective dates of the Financial Statements and the Regulatory Statements (the “Reserves”) (i) have been computed in accordance in all material respects with presently accepted actuarial standards consistently applied and were fairly stated, (ii) have been based on actuarial assumptions which produced reserves at least as great as those called for in any Insurance Contract provision as to reserve basis and method and are in accordance in all material respects with all other Insurance Contract provisions and (iii) met in all material respects all requirements of applicable Law and regulatory requirements of DFS. Notwithstanding anything to the contrary in this Agreement, Purchaser hereby agrees and acknowledges that Seller makes no representation or warranty with respect to, and nothing contained in this Agreement or in any other agreement, document or instrument to be delivered in connection with the transactions contemplated hereby is intended or shall be construed to be a representation or warranty (express or implied) of Seller for any purpose of this Agreement or any other agreement, document or instrument to be delivered in connection with the transactions contemplated hereby, with respect to (w) the adequacy or sufficiency of the Reserves of the Insurer, (x) the future profitability of the Business, (y) the effect of the adequacy or sufficiency of the Reserves of the Insurer on any “line item” or asset, Liability or equity amount or (z) the collectability of any amounts recoverable under Reinsurance Contracts. Furthermore, Purchaser agrees and acknowledges that no fact, condition, circumstance or event relating to or affecting the development of the Reserves of the Insurer may be used, directly or indirectly, to demonstrate or support the breach of any representation, warranty, covenant or agreement contained in this Agreement or any other agreement, document or instrument to be delivered in connection with the transactions contemplated hereby.
16 2.17. Insurer-Appointed Producers. To Seller’s Knowledge, (a) each appointed Producer of the Insurer at the time such Producer wrote, sold, produced or managed business for the Insurer, was duly licensed (for the type of business written, sold, produced or managed by such producer) in the particular jurisdiction in which such Producer wrote, sold, produced or managed such business for the Insurer, (b) all compensation paid to each such Producer was paid in accordance with applicable Law and Permits in all material respects and (c) no such Producer violated (or with or without notice or lapse of time or both would have violated) any term or provision of any applicable Law or Order applicable to any aspect (including, but not limited to, the marketing, writing, sale, production or management) of the business of the Insurer in all material respects. 2.18. Permits. (a) All material Permits required for the Insurer to conduct its business in the manner conducted as of the date of this Agreement have been obtained by it and are valid and in full force and effect. The Insurer is, and at all times since January 1, 2020, has been, in material compliance with all of the terms and requirements of each such Permit. Schedule 2.18(a) lists each such material Permit and the issuing Governmental Authority. (b) With respect to the Permits of the Insurer, the Insurer has not at any time since January 1, 2020 to the date hereof received any written or, to the Knowledge of Seller, oral notice from any Governmental Authority regarding any actual or proposed revocation, suspension or termination of, or material modification to, any such Permit, in each case other than any such item that has been cured or otherwise resolved to the satisfaction of such Governmental Authority or that is no longer being pursued by such Governmental Authority following a response by the Insurer. The Insurer is not the subject of any regulation, supervision, conservation, rehabilitation, liquidation, receivership, insolvency or other similar proceeding and, to the Knowledge of Seller, no such proceeding is threatened. (c) Since January 1, 2020 to the date hereof, all filings required to be made by the Insurer pursuant to applicable Law to any applicable Governmental Authority were timely filed and were, at the time of filing, true, complete and accurate and in compliance with applicable Law in all material respects. (d) Since January 1, 2020 to the date hereof, no material deficiencies have been asserted by any Governmental Authority with respect to such filings that have not been remedied prior to the date of this Agreement. True and complete copies have been made available to Purchaser of the reports on examinations (or the most recent drafts thereof, to the extent any final reports are not available and such drafts have been provided to the Insurer) reflecting the results of any financial examinations or market-conduct examinations of the Insurer conducted by any Governmental Authority since January 1, 2020. 2.19. Claims Handling. All benefits claimed by any Person under any Insurance Contract issued by the Insurer have, in all material respects, been paid (or a best estimate provision for payment thereof has been made) in accordance with the terms of the Insurance Contract under which they arose, except for any such claim for benefits for which the Companies believe or
17 believed that there is or was a reasonable basis to contest payment and is contesting such claim through appropriate action. 2.20. Insurance Contracts. To the extent required by applicable Law, all policy forms and rates in use by the Insurer, and all endorsements, riders, applications and certificates pertaining thereto, are on forms approved by the applicable Governmental Authority or which have been filed and not objected to by such Governmental Authority within the period provided for objection, in each case except as has not, and would not reasonably be expected to, individually or in the aggregate, result in a material violation of applicable Law by, or a material fine on, the Insurer. 2.21. Broker or Finders. The Insurer has not incurred, and will not incur, directly or indirectly, any liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby. 2.22. Privacy and Data Security. (a) Since January 1, 2020 to the date hereof, the Insurer has been in compliance, in all material respects, with all Privacy Laws and with any obligations pursuant to applicable Law to safeguard the privacy of Personal Data that the Insurer collects, uses, transmits or processes through its products or service offerings, including its websites or platforms that it maintains, operates or uses in the ordinary conduct of its business. (b) The Insurer has implemented Privacy and Data Security Policies that are in compliance with applicable Laws in all material respects. To the Seller’s Knowledge, the Insurer has been in compliance with all of its then-applicable Privacy and Data Security Policies since January 1, 2022 in all material respects. (c) As of the date hereof, there is no pending Action against the Insurer initiated by any person or entity or any Governmental Authority, alleging that any Data Activity of the Insurer (i) violates any applicable Privacy Laws, (ii) violates any Privacy Agreements, (iii) violates any Privacy and Data Security Policy or (iv) constitutes an unfair, deceptive or misleading trade practice. (d) The Insurer has adopted mechanisms such as firewall, antivirus protection, web filtering or other functions that are no less rigorous than practices reasonable to the Insurer’s business. 2.23. Intellectual Property. (a) Schedule 2.23(a) lists all Insurer IP Registrations and pending applications as of the Effective Date for Insurer IP Registration. All the Insurer IP Registrations have been duly registered in, filed in or issued by the appropriate Governmental Authority where such registration, filing or issuance is necessary or appropriate for the conduct of the business of the Insurer as presently conducted. Each item of the Insurer IP Registrations is subsisting and, to the Knowledge of Seller, valid and enforceable. (b) The Insurer is the legal and beneficial, and with respect to the Insurer IP Registrations, record, owner of all right, title and interest in and to the Insurer Intellectual Property
18 free and clear of Encumbrances other than Permitted Encumbrances. Since January 1, 2020 to the date hereof, to Seller’s Knowledge, the Insurer has not received any written communication from any Person asserting any ownership interest in any Insurer Intellectual Property. (c) All current and former employees and independent contractors who create or contribute to any portion of, or otherwise would have rights in or to, Insurer Intellectual Property that is material to the conduct of the Business have executed enforceable written agreements that assign to the Insurer all of their rights in and to such Insurer Intellectual Property, or the Insurer owns all such Insurer Intellectual Property pursuant to applicable Law. (d) The Insurer’s rights in the Insurer Intellectual Property are, to the Knowledge of Seller, valid and enforceable. The Insurer has taken reasonable steps to (i) maintain the validity and enforceability of the Insurer Intellectual Property and (ii) protect and preserve the confidentiality of all confidential information and trade secrets used or practiced in the Business. (e) Since January 1, 2020 to the date hereof, to the Seller’s Knowledge, the conduct of the Insurer’s Business has not been and is not infringing, misappropriating, diluting, violating or conflicting with the Intellectual Property of any Person, except for such violations, misappropriations, dilutions, conflicts or infringements that, individually or in the aggregate, have not been and would not reasonably be expected to be material to the conduct of the Business. Since January 1, 2020 to the date hereof, to Seller’s Knowledge, none of the Insurer Intellectual Property has been or is being infringed, misappropriated, diluted, violated or otherwise used or made available for use by any Person without a license or permission from the Insurer. Since January 1, 2020 to the date hereof, to Seller’s Knowledge the Insurer, has not received any written communication alleging that the Insurer infringed, misappropriated, violated, diluted or conflicted with any rights relating to Intellectual Property of any Person. 2.24. No Further Representations or Warranties. Except for the representations and warranties made in this Article II, neither Seller nor any other Person makes any other representation or warranty (express or implied), with respect to Seller or its Affiliates, including their respective businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding the delivery or disclosure to Purchaser or any of its Affiliates or Representatives of any documents, forecasts or other information with respect to any one or more of the foregoing. ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser hereby represents and warrants to Seller that the following statements are correct on (i) the date hereof and (ii) the Closing Date, as follows: 3.01. Organization; Existence and Authority. (a) Purchaser is a limited liability company, duly organized, validly existing and in good standing under the Laws of Delaware and has all requisite corporate power and authority to own, license, use, lease and operate its Assets and Properties and to carry on its business as it is
19 now being conducted except where the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (b) Purchaser has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations and the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the performance by Purchaser of its obligations and the transactions contemplated by this Agreement have been approved by the board of directors of Purchaser. No other corporate or other proceedings on the part of Purchaser are necessary to authorize the execution and delivery of this Agreement by Purchaser and the performance by Purchaser of its obligations and the transactions contemplated by this Agreement. Purchaser has the right and capacity to (i) make, execute and deliver this Agreement and (ii) perform Purchaser’s obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Purchaser and constitutes the valid and legally binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and general principles of equity (whether considered in equity or at Law). (c) The execution and delivery by Purchaser of this Agreement and the performance by Purchaser of its obligations and the transactions contemplated by this Agreement will not (i) conflict with or result in a breach of any provision of any certificate of incorporation or bylaws (or similar organizational documents) of Purchaser, (ii) require any consent or approval of or other action by any Person under, result in a violation or breach of or constitute a default (or an event that, with or without notice or lapse of time or both, would constitute a default) under, result in the creation or imposition of an Encumbrance (other than a Permitted Encumbrance) upon any property, assets or rights of Purchaser pursuant to, or result in the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit under any contract or other instrument of any kind to which Purchaser is now a party or by which any of their respective properties, assets or rights are bound or any Permit affecting the assets or business of the Purchaser or (iii) violate any Law or Order applicable to Purchaser or any of their respective assets. (d) Except as set forth in Schedule 3.01(d) of the Purchaser Disclosure Schedule, no material declaration, filing or registration with, or notice to, or authorization, consent, Order or approval of, any Governmental Authority or other Person is required to be obtained in connection with or as a result of the execution and delivery and performance of this Agreement by Purchaser or the consummation by Purchaser of the transactions contemplated by this Agreement. 3.02. No Conflicts. The execution and delivery by Purchaser of this Agreement does not, and the performance by Purchaser of its obligations under this Agreement and the consummation of the transactions contemplated hereby will not (a) conflict with or result in a violation or breach of, (b) constitute (with or without notice or lapse of time or both) a default under, (c) other than the Governmental Approvals, require Purchaser to obtain any consent, approval or action of, make any filing with or give any notice to any Person as a result or under the terms of or (d) result in the creation or imposition of any Encumbrance upon Purchaser or any of its Assets and Properties under, any Contract or License to which Purchaser is a party or by which any of its Assets and Properties is bound.
20 3.03. Investment Intent. Purchaser is acquiring the Shares for its own account, for investment purposes only and not with a view to the distribution (as such term is used in Section 2(a)(11) of the Securities Act) thereof. Purchaser understands that the Shares have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. 3.04. Financial Capacity. (a) Purchaser will have at Closing sufficient available and unencumbered funds to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses required to be paid by it hereunder. Purchaser hereby acknowledges and agrees that its obligations hereunder are not subject to any conditions regarding Purchaser’s or any other Person’s ability to obtain financing for the consummation of the transactions contemplated by this Agreement. (b) Prior to the execution of this Agreement, the Purchaser has provided to the Seller audited financial statements of Purchaser for the year ended December 31, 2023. 3.05. Regulatory Matters. Within the past five (5) years, no Governmental Authority has revoked any license or status held by the Purchaser or any of its Affiliates to conduct insurance operations. Purchaser and each of its Affiliates and each person who controls any of them meet all of the requirements on the part of such respective person or entity set forth by applicable Law (including the Laws of its jurisdiction of formation) in order for all necessary Governmental Approval to be obtained, and there are no facts, events or circumstances involving or relating to the Purchaser or any of its Affiliates or any person who controls any of them that may prevent or materially delay the granting of any such Governmental Approval. 3.06. Financial Statements. Purchaser has delivered to Seller complete and correct copies of Purchaser’s (a) audited balance sheets as of and for the annual period ended December 31, 2023, (b) unaudited balance sheets as of and for the quarter ended March 31, 2024 and (c) the related audited and unaudited consolidated statements of income for such periods (collectively, the “Purchaser Financial Statements”). Each of the Purchaser Financial Statements has been prepared in accordance with GAAP (subject to the omission of notes and normal year-end adjustments in the case of the unaudited statements) and in conformity with the practices consistently applied by Purchaser and presents fairly, in all material respects, the financial position and results of operations of Purchaser as at the respective dates and for the respective periods indicated. 3.07. Non-Reliance by Purchaser. (a) Purchaser has not been induced by and has not relied upon any representations, warranties or statements, whether express or implied, made by Seller, the Insurer or their respective Affiliates or Representatives that are not expressly set forth in Article II, whether or not any such representations, warranties or statements were made in writing or orally. (b) Purchaser agrees and acknowledges that, without limiting the foregoing, none of the Insurer, Seller or their Affiliates or Representatives makes, will make or has made any representation or warranty, express or implied, as to the prospects of the Insurer or its profitability
21 for Purchaser, or with respect to any forecasts, projections or business plans made available to Purchaser or any other Person (including Purchaser’s Affiliates or Representatives) in connection with Purchaser’s review of the Insurer and the Business. In addition, except as otherwise set forth herein, including the Seller Disclosure Schedule, any estimates, projections and predictions contained or referred to in the materials that have been provided or made available to Purchaser by or on behalf of Seller, including any confidential information memorandum, the actuarial reports or any other communication by or on behalf of Seller or the Insurer, any virtual data room made available to Purchaser, its Affiliates or its Representatives and all management presentations established or provided in connection with the transactions contemplated by this Agreement, (i) are not and shall not be deemed to be representations or warranties of Seller or any of its Affiliates and (ii) shall not form the basis, in whole or in part, for any claim against Seller or any of its Affiliates. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article II, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY ASSETS ARE BEING CONVEYED ON AN “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” BASIS AND WITHOUT ANY WARRANTY OF NON-INFRINGEMENT. 3.08. No Further Representations or Warranties. Except for the representations and warranties made in this Article III, neither Purchaser nor any other Person makes any other representation or warranty (express or implied) with respect to Purchaser or its Affiliates, including their respective businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding the delivery or disclosure to Seller or any of its Affiliates or Representatives of any documents, forecasts or other information with respect to any one or more of the foregoing. ARTICLE IV COVENANTS OF SELLER Seller covenants and agrees with Purchaser that, at all times during the period commencing on the date hereof and ending on the earlier of (i) the Closing Date or (ii) the date on which this Agreement is terminated pursuant to Article VII (such period, the “Post-Signing Period”), Seller will comply with all covenants and provisions of this Article IV, except to the extent Purchaser may otherwise consent in writing. 4.01. Insurance Approvals; Regulatory Communications. (a) Seller shall reasonably cooperate in good faith with Purchaser and use commercially reasonable efforts to promptly gather and supply to Purchaser all reasonably necessary documentation to obtain the approval from DFS of the transactions contemplated hereby, as promptly as practicable, provided that with respect to any confidential, commercially sensitive or privileged information requested by DFS, Seller may submit such information directly to DFS without sharing it with Purchaser. (b) Seller shall consider in good faith any proposed rate and policy form filings proposed by Purchaser for the Insurer and if such rate and policy form filings are reasonably
22 acceptable to the Seller (acting in good faith), then Seller shall file such rate and policy form filings with the DFS and shall cooperate with Purchaser in good faith to seek the approval therefor from the DFS. (c) Other than in the ordinary course of business, Seller shall not participate, agree to participate or permit its Representatives to participate or agree to participate in any meeting (whether in person, teleconference or videoconference) with any Governmental Authority to the extent relating to the matters that are the subject of this Agreement unless, to the extent reasonably practicable, it consults with Purchaser in advance and, to the extent reasonably practicable and permitted by the applicable Governmental Authority, gives Purchaser the reasonable opportunity to attend and participate prior to participating in any meeting with any Governmental Authority in respect of such transactions. 4.02. Notifications. Subject to applicable Laws relating to the sharing of information, Seller shall promptly notify Purchaser of any communication Seller receives from any Governmental Authority relating to the matters that are the subject of this Agreement. During the Post-Signing Period, Seller shall promptly advise Purchaser upon receiving: (a) any written communication from any Governmental Authority or third party whose consent is required for consummation of the transactions contemplated by this Agreement that causes Seller to believe that there is a reasonable likelihood that one or more of the conditions precedent to Closing will not be satisfied; (b) notice from any Governmental Authority or third party alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; or (c) notice of any Action or Order that, if pending on the date of this Agreement, would have been required to be disclosed pursuant to Section 2.08. 4.03. Conduct of Business Prior to the Closing Date. Seller agrees that, except as may be required by this Agreement or as consented to in writing by Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned) or required by the Agreement, Law, court Order, a Governmental Authority or any Contract of the Insurer, during the Post-Signing Period: (a) Seller will cause the Insurer to use commercially reasonable efforts to conduct its business operations in the ordinary course of business and maintain and preserve its business organization and its existing business relationships; and (b) Seller will cause the Insurer not to effect any of the following without the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed): (i) make any change in or amendment to the Insurer’s articles of incorporation or bylaws or other equivalent charter documents, as applicable; (ii) issue or sell, or authorize the issuance or sale of, any shares of the Insurer’s capital stock or any other ownership interests in the Insurer, as applicable, or issue or sell, or authorize the issuance or sale of, any securities convertible into or exchangeable for, or Options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any shares of the Insurer’s capital stock or any other ownership interests in the Insurer, as applicable, or effect any recapitalization, reclassification, stock dividend or like change in the capitalization of the Insurer;
23 (iii) acquire any Assets and Properties, or sell, lease or otherwise dispose of any of the Insurer’s Assets and Properties, in each case valued at more than $100,000, other than investment assets acquired or disposed of in the ordinary course; (iv) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; (v) except as required by this Agreement, including, but not limited to Section 4.05, amend or terminate any Material Contract, or permit the Insurer to enter into a Material Contract, other than in the ordinary course of business; (vi) incur any Indebtedness for borrowed money or contract for the extension or ability to borrow debt for borrowed money (even if not yet incurred), except in an amount less than $250,000 in the ordinary and usual course of its business and consistent with past practice; (vii) employ any new employees or lease any new employees, other than the Transferred Employees or replacements to Transferred Employees; (viii) waive any rights of any value or cancel or forgive any Indebtedness owed to the Insurer in excess of $250,000 in the aggregate, but in all events in accordance with past practices, except in the ordinary course of business; (ix) except as may be required by any Governmental Authority, or by changes in applicable Law, GAAP or SAP, make any change in the Insurer’s methods, principles and practices of accounting; (x) make any change in the accounting policies applied in the preparation of the Statutory Statements of the Insurer, unless such change is required by a change in SAP; (xi) make any change or allow any Person to make any change with respect to actuarial, claims management or reserving methodologies, in each case, except as may be required to comply with changes in GAAP, SAP or any applicable Law; (xii) subject any of the Insurer’s assets to any Encumbrance (other than any Permitted Encumbrance), except that this does not apply to the Insurer’s issuance of Insurance Contracts or its investment activities in the normal course of its business; (xiii) (A) institute, settle, dismiss or compromise any claims or litigation exceeding $250,000 involving the Insurer, except in the ordinary course of business or (B) pay, discharge, settle or satisfy any claims, Liabilities or obligations (absolute, accrued, contingent or otherwise) in connection with such litigation exceeding $250,000 related to the Insurer, in each case, except in the ordinary course of business; (xiv) increase materially the salary, bonus or other compensation (including any severance, profit sharing, retirement or insurance benefits) payable to any Transferred Employee or the benefits of any Transferred Employee, other than increases in the ordinary course of business and consistent with past practice;
24 (xv) pay, settle or compromise any material Tax audit or liability, amend any material Tax Return, make, change or revoke any material election related to Taxes, change any material taxable period or any material Tax accounting method, enter into any material agreement relating to Taxes with a Tax Authority, consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, surrender any right to claim a material Tax refund, offset or other reduction in Tax liability; (xvi) fail to keep, or cause to be kept, all insurance policies in respect of the Insurer in effect as of the date of this Agreement, or commercially reasonable replacements therefor, in full force and effect through the close of business on the Closing Date; (xvii) enter into any lease agreement or acquire any real property other than investment assets acquired or disposed of in the ordinary course; (xviii) liquidate, dissolve or wind up, or otherwise dispose of all or substantially all of its assets (including by way of bulk reinsurance, whether on an indemnity or assumption basis); (xix) consider or adopt a plan of liquidation, dissolution, restructuring, recapitalization, re-domestication or other reorganization; (xx) organize any new company, subsidiary, joint venture, partnership or similar arrangement; (xxi) make any loan, advance or capital contribution to any Person other than investment assets acquired or disposed of in the ordinary course; or (xxii) authorize any of, or commit or agree to take any of, the foregoing actions. 4.04. Investigation by Purchaser. During the Post-Signing Period, Seller, if requested in writing by Purchaser, will provide Purchaser and its Representatives with reasonable access, upon reasonable prior notice and during normal business hours, to Books and Records of the Insurer, but only to the extent that such access does not unreasonably interfere with the business and operations of the Insurer or its Affiliates; provided that Seller shall in no circumstances be required to share information, data or documentation (a) in breach of applicable Law, including, but not limited to, anti-gun jumping rules or (b) containing commercially sensitive, privileged or confidential information. 4.05. Reinsurance. Except as is not and would not be reasonably likely to be material and adverse to the Insurer, during the Post-Signing Period Seller shall cause the Insurer to use commercially reasonable efforts to maintain, at the Insurer’s expense, reinsurance coverage (including, but not limited to property catastrophe reinsurance coverage) in such amounts and covering such risks as Seller reasonably believes to be: (a) necessary to maintain the Insurer’s Demotech rating and (b) consistent with DFS guidance and applicable Law. 4.06. Financial Information. During the Post-Signing Period, Seller shall make available to Purchaser (a) promptly, and in any event within 45 days following the end of each calendar quarter other than the last calendar quarter of any calendar year, the unaudited quarterly
25 Statutory Statements of the Insurer, in each case together with the exhibits, schedules and notes thereto and as filed with DFS and (b) promptly, and in any event within 60 days following the end of any calendar year, the unaudited annual Statutory Statements of the Insurer, together with the exhibits, schedules and notes thereto and as filed with the DFS. 4.07. Further Assurances. Both before and after the Closing, Seller shall cooperate in good faith with Purchaser and shall take all appropriate action and execute such documents, instruments or conveyances of any kind that may be reasonably necessary or advisable to carry out any of the transactions contemplated hereunder. ARTICLE V COVENANTS OF PURCHASER Purchaser covenants and agrees with Seller that during the Post-Signing Period, Purchaser will comply with all covenants and provisions of this Article V, except to the extent Seller may otherwise consent in writing. 5.01. Insurance Approvals; Notifications. (a) Purchaser shall (i) promptly (but in no case later than thirty (30) days following the date of this Agreement) prepare and file all necessary documentation to obtain the approval from DFS of the transactions contemplated hereby in accordance with New York Insurance Law §1506 (the “Regulatory Approval,” and such application, hereafter a “1506 Application”), (ii) as soon as practicable, but not later than ninety (90) days following the date of this Agreement, propose to Seller any rate and policy form filings to be made by the Insurer, (iii) promptly (but in no case later than thirty (30) days following the date any rate and form filings are agreed to by Seller and Purchaser), and subject to any instructions provided by DFS, prepare and make such rate and form filings to obtain the approval of DFS therefor (the “Rate and Form Approval”), (iv) use reasonable best efforts to comply with the terms and conditions of the Regulatory Approval and (v) use reasonable best efforts to obtain such Regulatory Approval and Rate and Form Approval as promptly as possible after the date hereof. To the extent DFS requests additional information in connection with the 1506 Application, Purchaser shall submit such additional information as soon as reasonably practicable. (b) Purchaser shall provide Seller a draft of the 1506 Application and any proposed rate and policy form filing in a timely manner and shall consider in good faith the views and comments of Seller in respect of the 1506 Application or rate and policy form filing. Purchaser shall take all actions as may be required or requested by any applicable Governmental Authorities or as may otherwise be necessary in order to obtain any authorization, consent or approval from any Governmental Authority required for the consummation of the transactions contemplated hereunder and to obtain the Rate and Form Approval, including by (i) seeking to prevent the initiation of, and defending any Action challenging this Agreement or the consummation of the transactions contemplated hereby, (ii) the prompt provision to a Governmental Authority of any information and documents requested by such Governmental Authority or that are necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement and (iii) avoiding the entry of, or causing to be lifted or rescinded, any Order, decree or injunction
26 or other action restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereunder or adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement. Purchaser shall take no action that can reasonably be expected to have the effect of delaying, impairing or impeding the receipt of any authorization, consent or approval from any Governmental Authority required for the consummation of the transactions contemplated hereunder. (c) Subject to applicable Laws relating to the sharing of information, Purchaser shall promptly notify Seller of any communication Purchaser receives from any Governmental Authority relating to the matters that are the subject of this Agreement. Purchaser shall, except with respect to Purchaser’s Confidential Information: (i) permit Seller to review in advance and consider in good faith the views of Seller in connection with the 1506 Application and any other written communication to any Governmental Authority in connection with the transactions contemplated by this Agreement (including the rate and policy form filing) and (ii) promptly provide Seller or its designated Representatives with copies of all correspondence or communications between Purchaser or any of its Representatives, on the one hand, and any Governmental Authority or members of the staff of any Governmental Authority, on the other hand, in connection with the transactions contemplated by this Agreement (including the rate and policy form filing). Other than matters related solely to Purchaser Confidential Information, Purchaser shall not participate, agree to participate or permit its Representatives to participate in any meeting (whether in person, teleconference or videoconference) with any Governmental Authority to the extent relating to the matters that are the subject of this Agreement unless, to the extent reasonably practicable, it consults with Seller in advance and, to the extent permitted by the applicable Governmental Authority, gives Seller the reasonable opportunity to attend and participate prior to participating in any such meeting with any Governmental Authority in respect of such transactions. (d) During the Post-Signing Period, Purchaser shall promptly advise Seller upon receiving: (i) any communication from any Governmental Authority or third party whose consent is required for consummation of the transactions contemplated by this Agreement that causes Purchaser to believe that there is a reasonable likelihood that one or more of the conditions precedent to Closing will not be satisfied or (ii) notice from any Governmental Authority or third party alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement. (e) On or before June 5, 2024 Purchaser shall deliver to Seller a bank statement showing funds sufficient to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses required to be paid by Purchaser hereunder or in connection herewith. 5.02. Further Assurances. Both before and after the Closing, Purchaser shall cooperate in good faith with Seller and shall take all appropriate action and execute such documents, instruments or conveyances of any kind that may be reasonably necessary or advisable to carry out any of the transactions contemplated hereunder. If at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, the proper officers of Purchaser shall take all such necessary action.
27 5.03. Employee Matters. (a) Prior to the Closing, and conditioned on the Closing having occurred, Purchaser or one of its Affiliates shall offer employment (effective as of the Closing Date) to all of the Transferred Employees, at (i) an initial rate of base salary and target annual bonus or incentive opportunity (beginning with the 2023 fiscal year, including for the pre-Closing period) that are no less than the Transferred Employee’s pre-Closing levels, (ii) with Purchaser’s (or, if applicable, its Affiliate’s) health and retirement benefits available to similarly-situated employees of Purchaser and its Affiliates, (iii) a work location that is within fifty (50) miles of the Transferred Employee’s pre-Closing work location and (iv) except as otherwise agreed in writing with a Transferred Employee, any other terms and conditions provided in an offer letter or employment agreement with the Transferred Employee that are in effect as of the Closing (collectively, the “Offer Conditions”). Seller shall cooperate with Purchaser’s (or its Affiliate’s) efforts to employ the Transferred Employees on the Closing Date (but without incurrence of any material cost or expense). In the event that a Transferred Employee accepts Purchaser’s (or its Affiliate’s) offer of employment, the Transferred Employee’s employment with Purchaser shall commence on the Closing Date in accordance with the Offer Conditions on an at-will basis. Purchaser (or, if applicable, its Affiliate) shall maintain the Offer Conditions until the first (1st) anniversary of the Closing Date. As of the Closing, Seller shall not employ any Transferred Employees. (b) Provided that Purchaser (and, as applicable, its Affiliate) complies with its obligations under Section 5.03(a), including the Offer Conditions, (i) Purchaser and its Affiliates shall have no Liability for or to any Transferred Employee who fails to accept Purchaser’s (or its Affiliate’s) offer of employment, and (ii) Seller and its Affiliates shall be solely responsible for all severance and termination costs that become payable to such Transferred Employee solely as a result of this transfer of employment to Purchaser (or its Affiliates). (c) As of the Closing, Seller or one of its Affiliates shall retain the obligation to pay any and all accrued payroll obligations and other employee benefits owed to Transferred Employees for pre-Closing employment or service under the Employee Plans, except as otherwise provided in this Agreement. (d) As of the Closing, Seller shall, or shall cause its Affiliates to, terminate the participation of all Transferred Employees and the Insurer in any Employee Plan, and in no event shall any Transferred Employee be entitled to accrue any compensation or benefits under an Employee Plan with respect to employment or services rendered or compensation paid on or after the Closing. (e) [Intentionally omitted] (f) Purchaser shall, or shall cause its Affiliates, as applicable, to give the Transferred Employees full credit for their service with Seller and its Affiliates for purposes of eligibility, vesting and determination of the level of benefits to the same extent recognized by Seller and its Affiliates immediately prior to the Closing, under any benefit plans made available to employees or officers of Purchaser and its Affiliates in which the Transferred Employee participates following the Closing; provided that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits with respect to the same period of service.
28 (g) As of the Closing, (i) the Insurer shall cease to be named as an insured under the workers’ compensation policies of Seller and its Affiliates with respect to occurrences from and after the Closing, (ii) Purchaser shall cause the Insurer to have workers compensation coverage in respect of such post-Closing occurrences and (iii) Purchaser shall assume and be solely responsible for any claims arising from post-Closing occurrences by or on behalf of Transferred Employees under workers’ compensation policies of Purchaser and its Affiliates. (h) The provisions contained in this Section 5.03 are for the sole benefit of the Parties, and no Transferred Employee or other Person shall be regarded for any purpose as a third-party beneficiary of this Section 5.03. Nothing in this Section 5.03, express or implied, shall be construed or interpreted to create any right, benefit or remedy of any nature whatsoever in any Transferred Employee. ARTICLE VI CONDITIONS 6.01. Conditions to Each Party’s Obligations. The respective obligation of each Party to effect the transactions contemplated in this Agreement is subject to the satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) DFS Consent. Regulatory Approval of the DFS in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been made or obtained (as the case may be) and shall be in full force and effect. (b) Governmental Orders or Proceedings. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Order (whether temporary, preliminary or permanent) that is in effect and restrains, prevents, enjoins, makes illegal or otherwise prohibits consummation of the transactions contemplated by this Agreement. 6.02. Conditions to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the satisfaction or waiver in writing by Purchaser at or prior to the Closing of each of the following conditions: (a) Representations. Each of the representations and warranties of Seller set forth in this Agreement shall be true and correct in all respects on and as of the Closing Date with the same force and effect as though made on and as of that date (provided that any such representation and warranty that is specifically made as of a particular date shall be true and correct in all respects as of such specified date), except, in each case, where the failure of such representations and warranties to be so true and correct as of the Closing Date or such other applicable date would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Notwithstanding the foregoing, the representations and warranties of Seller set forth in Sections 2.01(a) (organization, authority of Seller), 2.01(b) (corporate power and authority), 2.01(c)(iii) and 2.03 and the first two sentences of Section 2.02 shall be true and correct on and as of the Closing Date (other than in any respects that are not material) with the same force and effect as though made on and as of that date.
31 (b) by either Party, if the Closing has not occurred within twelve (12) months of the date of this Agreement (or such later date as may be mutually agreed to in writing by the Parties); (c) by Seller, so long as Seller is not then in material breach of any of its representations, covenants or agreements hereunder, if (i) there shall have been a material breach of any representation, covenant or agreement of Purchaser hereunder that would cause any of the conditions set forth in Article VI not to be fulfilled and (ii) such breach shall not have been remedied within thirty (30) days after receipt by Purchaser of notice in writing from Seller specifying the nature of such breach and requesting that such breach be remedied; (d) by Purchaser, so long as Purchaser is not then in material breach of any of its representations, covenants or agreements hereunder, if (i) there shall have been a material breach of any representation, covenant or agreement of Seller hereunder that would cause any of the conditions set forth in Article VI not to be fulfilled and (ii) such breach shall not have been remedied within thirty (30) days after receipt by Seller of notice in writing from Purchaser specifying the nature of such breach and requesting that such breach be remedied; (e) by Purchaser or Seller, if the Regulatory Approval shall have been denied or refused and such denial or refusal shall have become final and non-appealable, provided that the Party seeking to terminate this Agreement pursuant to this Section 7.01(e) shall have used its reasonable best efforts to obtain such approval as required by terms of this agreement; or (f) by Seller, if Purchaser does not deliver the Purchase Price in accordance with Section 1.02. 7.02. Notice of Termination. Any Party desiring to terminate this Agreement pursuant to Section 7.01 shall deliver written notice of such termination to the other Party specifying (a) the provision pursuant to which such termination is being made and (b) in reasonable detail the grounds for such termination. 7.03. Effect of Termination. If this Agreement is duly terminated pursuant to Section 7.01, this Agreement shall become null and void, and there shall be no liability hereunder on the part of either Party, except that Sections 8.02, 10.03, 10.11 and 10.12 shall survive any termination of this Agreement. The termination of this Agreement shall not relieve Purchaser or Seller of Liability as a result of a breach of its obligations hereunder prior to such termination or any Fraud by Purchaser or Seller, as applicable, hereunder. ARTICLE VIII POST-CLOSING COVENANTS 8.01. Further Assurances; Post-Closing Cooperation. (a) From time to time after the Closing, as and when requested by any Party without additional consideration, each of the Parties hereto will (or, if appropriate, cause their Affiliates to) execute and deliver such further documents and instruments and take such other actions as may be necessary to make effective the transactions contemplated by this Agreement. If any Party following the Closing shall have in its possession any asset, property or right that under this
32 Agreement should have been delivered to the other, such Party shall promptly deliver such asset, property or right to the other Party. (b) Purchaser shall preserve for a period of at least seven (7) years from Closing all Books and Records existing at Closing. For seven (7) years following the Closing, upon reasonable written notice, Purchaser will afford Seller and its Representatives, upon reasonable notice (and in any event on seven (7) days’ written notice) (i) such access during normal business hours to books, records and other data and information relating to the Insurer and (ii) the right to make copies and extracts therefrom at the Seller’s cost. (c) On and after the Closing: (i) Seller and its Affiliates will cause each Transferred Employee to cease active participation under all Employee Plans; (ii) Seller or its Affiliates shall pay and satisfy any Liability, Loss or Claim arising from any Employee Plans sponsored, maintained, administered or contributed to by the Insurer prior to the Closing. 8.02. Confidential Information. The Parties acknowledge and agree that the unauthorized disclosure of Confidential Information to a competing business may cause irreparable harm to the non-breaching party. For a period starting on the date hereof and ending two (2) years from the Closing or the termination of this Agreement: (i) Any Confidential Information provided by one Party to the other will be kept confidential and shall not, without the prior written consent of the disclosing party, be disclosed by the receiving party, in any manner whatsoever, in whole or in part, provided that the receiving party may disclose such Confidential Information to its Affiliates, provided, further, that the receiving party shall direct its Affiliates that are not subject to a nondisclosure agreement with confidentiality provisions no less restrictive than those set forth herein to treat the Confidential Information confidentially. The receiving party shall not use Confidential Information for any purpose detrimental to the disclosing party or its Affiliates, directly or indirectly, including for competitive purposes. Nothing in this Agreement shall prohibit any disclosures necessary to perform a Party’s obligations and enforce its rights and remedies under this Agreement. (ii) The receiving party will take all reasonable precautions to safeguard in strictest confidence the Confidential Information, provided that this obligation shall be deemed met where the receiving party uses the same level of precautions it applies to its own Confidential Information. (iii) The receiving party may disclose Confidential Information where requested or required pursuant to applicable Law, any Governmental Authority or by any Order of any court or other judicial authority of competent jurisdiction. In the event that the receiving party becomes legally compelled to disclose any of the Confidential Information, the receiving party will, to the extent legally permissible and reasonably practicable, provide the disclosing party with prompt notice before such Confidential Information is disclosed so that the disclosing party (at its own cost) may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the receiving party will furnish only that portion of the Confidential Information that they are requested or required to furnish. The receiving party will exercise its commercially
33 reasonable efforts to assist the disclosing party in obtaining a protective order, provided that such actions are at the disclosing party’s sole cost. 8.03. Tax Covenants. (a) Section 338(h)(10) Election. Following the Closing Date, Seller and Purchaser shall make a timely election under Section 338(h)(10) of the Code (and any corresponding election under state, local or foreign applicable Tax Law) with respect to the purchase and sale of the Shares under this Agreement (collectively, the “Section 338(h)(10) Election”), following the procedures set forth in Schedule 8.03(a). Any income, gain, loss, deduction, or other Tax item resulting from the deemed sale of the Insurer’s assets under the Section 338(h)(10) Election shall be included in the Seller Group’s consolidated federal income Tax Return for the consolidated year that ends on the day immediately prior to the Closing Date to the extent required by applicable Tax Law, and Seller shall be responsible for all Taxes imposed on the “old target” (but not the “new target”) as a result of the Section 338(h)(10) Election (the “Section 338(h)(10) Election Taxes”). (b) Tax Refunds. Any Tax refund (including, but not limited to, any Tax refund attributable to any estimated tax payment for any Pre-Effective Period being higher than the actual Tax Liability for such period and any credit of any otherwise payable refund against any Tax liability for any Post-Effective Period and any interest with respect to any such Tax refund or credit) relating to the Insurer for any Pre-Effective Period shall be the property of Seller, and if received by Purchaser or the Insurer, shall be paid over promptly (and in any event within twenty (20) days) to Seller, less any reasonable out-of-pocket expenses incurred in obtaining such refund. In the event that the amount of any Tax reflected as a liability or otherwise as a reduction in the calculation of the Purchase Price pursuant to Section 1.02 exceeds the amount of such Tax required to be paid by the Insurer for the applicable Pre-Effective Period to which such Tax relates (whether as a result of such Tax being less than the amount so reflected in the Purchase Price or as a result of a separate payment of such Tax by Seller or any Affiliate of Seller or otherwise), Purchaser shall promptly pay over to Seller the amount of such excess after determination thereof. (c) Preparation and Filing of Tax Returns; Responsibility for Taxes. (i) Seller Tax Returns. (A) Seller shall be responsible for the preparation and filing of all Tax Returns required to be filed by or with respect to the Insurer on a consolidated, combined, unitary or similar basis with Seller (or any Affiliate of Seller other than the Insurer). Seller shall timely pay or cause to be timely paid all Taxes due with respect to such Tax Returns. (B) Seller shall prepare or cause to be prepared all Tax Returns of the Insurer due before the Closing Date or for any Tax Period ending prior to the Closing Date which are required to be filed (giving effect to any permitted extensions) after the Closing Date (other than any such Tax Returns to which Section 8.03(c)(i)(A) applies). Such Tax Returns shall be prepared in accordance with the past practice of the Insurer, except for the Section 338(h)(10) Election, as otherwise required by applicable Tax Law, or with the prior written consent of
34 Purchaser. Purchaser shall have a reasonable opportunity to review and comment on any such Tax Returns prior to filing and Seller shall consider in good faith such changes to such Tax Returns as are reasonably requested by Purchaser. Seller and Purchaser shall cooperate in good faith with respect to determining and implementing the proper method for signing and timely filing such Tax Returns (taking into account all extensions properly obtained). Purchaser shall, subject to its right to be indemnified for such Taxes pursuant to Section 9.08, timely pay or cause to be timely paid all Taxes due with respect to such Tax Returns. (ii) Purchaser Tax Returns. Purchaser shall prepare or cause to be prepared and timely file or cause the Insurer to timely file all Tax Returns related to Post-Effective Period Taxes and Straddle Period Tax Returns that are due on and after the Closing Date (other than any such returns that are the responsibility of Seller pursuant to Section 8.03(c)(i) above). Such Tax Returns that include Pre-Effective Periods shall be prepared in accordance with this Agreement and past practice of the Insurer except as otherwise required by applicable Tax Law or with the prior written consent of Seller. Seller shall have a reasonable opportunity to review and comment on any Tax Returns (including any amendment to any such Tax Returns) that include Pre-Effective Periods, and Purchaser shall make or cause to be made such changes to such Tax Returns as are reasonably requested by Seller. Purchaser shall, subject to its right to be indemnified for such Taxes pursuant to Section 9.08, timely pay or cause to be timely paid all Taxes due with respect to such Tax Returns. (iii) Straddle Periods. For purposes of allocating any Straddle Period Taxes pursuant to this Agreement, (i) the Taxes for a Straddle Period based on or measured by income or receipts (including insurance premiums) of the Insurer or imposed in connection with any sale or other transfer or assignment of property or any other specifically identifiable transaction or event shall be allocated between the Pre-Effective Period and the Post-Effective Period based on an interim closing of the books as of the end of the day immediately preceding the Closing Date and (ii) other Taxes for a Straddle Period not reasonably allocable pursuant to clause (i) above on a specific identification or interim closing basis shall be allocated based upon a fraction, the numerator of which is the number of days in the Pre-Effective Period or Post-Effective Period included in such Straddle Period, as applicable, and the denominator of which is the number of days in such Straddle Period. Any credits relating to a Straddle Period shall be taken into account as though the relevant taxable period ended on the day immediately preceding the Closing Date. All determinations necessary to give effect to the foregoing allocations shall be made in a manner consistent with prior practice of the Insurer. (iv) Except as required by applicable Tax Law, without the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed), Purchaser shall not, and shall not permit any of its Affiliates (including, after the Closing, the Insurer) to (A) make, change, revoke, or otherwise modify any election related to Taxes; (B) change or otherwise modify an annual accounting period; (C) file, refile, amend, or otherwise modify (including by way of a carry back of any Tax attributes) any Tax Return (other than the initial filing of Tax Returns in accordance with Sections 8.03(c)(i) and (ii)); (D) enter into any closing agreement or settle any Tax claim or assessment; (E)
35 extend or waive the limitation period applicable to any Tax claim or assessment; (F) surrender any right to claim a refund of Taxes; or (G) make any voluntary disclosure, or enter into any voluntary disclosure program or agreement, in each case, with respect to the Insurer relating in whole or in part to any Pre-Effective Period. Purchaser shall cause the Insurer to waive any carryback or other use from any taxable period (or portion thereof, determined in accordance with the provisions of Section 8.03(c)(iii)) beginning on and after the Closing Date to any Pre-Effective Period of any net operating loss, Tax credit, or other Tax attribute, to the extent permissible under applicable Tax Law. Notwithstanding any provision of this Agreement to the contrary, Seller shall not be liable or responsible for, nor shall it be required to indemnify Purchaser or the Insurer for, any Taxes arising out of, relating to, or resulting from any transactions or actions engaged in by the Insurer not in the ordinary course of business, not required by this Agreement, and taken solely by or at the direction of Purchaser or any Affiliate of Purchaser that occur on the Closing Date, and Purchaser shall indemnify Seller and hold Seller harmless for any Tax or other Loss arising out of, relating to, or resulting from any such transaction. Without limiting the foregoing, Purchaser and its Affiliates and Seller agree to report all such transactions utilizing the “next day rule” of Treasury Regulations Section 1.1502-76(b)(1)(ii)(B). (d) Tax Contests. (i) The Purchaser or the Seller, as the case may be, shall notify the other Party within twenty days after receipt by such Party or any of its Affiliates of written notice of any pending federal, state, local or foreign Tax audit or examination or notice of deficiency or other adjustment, assessment or redetermination relating to Taxes: (A) for which such other Party or its Affiliates may be responsible under this Agreement, or (B) for a Pre- Effective Period or to a Straddle Period (each, a “Tax Matter”). (ii) The Seller shall have the right to represent the Insurer’s interest in any Tax Matter that relates solely to a Pre-Effective Period, and to employ counsel of its choice at its expense; provided, however, that if such Tax Matter does not relate to any Tax return described in Section 8.03(c)(i)(A) and could reasonably be expected to increase the Tax liability of the Purchaser, the Insurer or the Purchaser’s Affiliates, then (A) the Seller shall keep the Purchaser reasonably informed of material developments with respect to such Tax Matter, (B) the Purchaser may participate in discussions with the relevant Governmental Authority, at the Purchaser’s expense and (C) the Seller shall not settle or compromise any issue in a manner that would reasonably be expected to increase Taxes payable by the Insurer or the Purchaser or any of its Affiliates with respect to the Insurer in any Post- Effective Period without the consent of the Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. (iii) The Purchaser shall have the right to represent the Insurer’s interest in any Tax Matter: (A) that relates solely to a Post-Effective Period, (B) that relates solely to a Straddle Period, or (C) for which Seller does not assume representation of the Insurer. If such Tax Matter could reasonably be expected to increase the Tax liability of the Seller, then (x) the Purchaser shall keep the Seller reasonably informed of material developments with respect to such Tax Matter, (y) the Seller may participate in discussions with the relevant Governmental Authority, at the Seller’s expense and (z) the Purchaser shall not
36 settle or compromise any issue in a manner that would reasonably be expected to increase Taxes payable by the Seller with respect to the Insurer in any Post-Effective Period without the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed. (e) Tax Record Retention. Seller, Purchaser and the Insurer (and their respective managers, officers, directors, agents, auditors or accountants on their behalf) will not dispose of (other than to Seller in the case of Purchaser and/or the Insurer or to Purchaser in the case of Seller) any books, records, Tax Returns, schedules, work papers, correspondence, or other material documents or information, whether in paper or electronic form, relating to the Taxes of the Insurer for any Pre-Effective Period (“Tax Records”) prior to the expiration of the statute of limitations for such Tax Period. (f) Cooperation. (i) Seller, Purchaser, the Insurer and their managers, officers, directors, and agents will reasonably cooperate fully with each other and each other’s agents, including legal counsel and accounting firms, in connection with Tax matters relating to the Insurer, including without limitation: (A) preparing, signing and filing Tax Returns and reports with respect to the Insurer for any period (including but not limited to the preparation of any Tax package consistent with past practice); (B) determining the Liability and amount of any Taxes due or the right to and amount of any refund of Taxes; (C) examination of Tax Returns; and (D) any administrative or judicial proceeding in respect of Taxes assessed or proposed to be assessed. (ii) Such cooperation will include each Party making all information and documents in its possession relating to the Insurer available to the other Party. (iii) Each of the Parties will also make available to the other Party, as reasonably requested and available, personnel (including officers, directors, employees and agents) responsible for preparing, maintaining, and interpreting information and documents relevant to Taxes, and personnel reasonably required as witnesses or for purposes of providing information or documents in connection with any administrative or judicial proceedings relating to Taxes. (g) Transfer Taxes. Any transfer, documentary, sales, use, stamp, registration and other such Taxes, and any conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement (“Transfer Taxes”) shall be borne one-half by Purchaser and one-half by Seller. Seller and Purchaser shall reasonably cooperate with each other to prepare and timely file any Tax Returns required with respect to any such Transfer Taxes.
37 (h) Miscellaneous Tax Covenants. (i) All Tax sharing agreements or similar agreements between the Insurer and Seller and its Affiliates shall be terminated as of the day immediately prior to the Closing Date and, on and after the Closing Date, the Insurer shall not be bound thereby or have any continuing liability thereunder. (ii) Seller, on the one hand, and Purchaser, on the other, agree to treat all payments made by either of them to or for the benefit of the other under this Agreement as adjustments to the Purchase Price or as capital contributions for Tax purposes and that such treatment shall govern for purposes hereof except to the extent that the applicable Tax Law of a particular jurisdiction provides otherwise. (iii) The rights and obligations of the Parties with respect to indemnification for any and all matters relating to Taxes shall be exclusively governed by this Section 8.03. In case of any inconsistency between Section 8.03, on the one hand, and any provision of Article IX, on the other hand, the provisions of this Section 8.03 shall control over such other provisions with respect to Tax matters. For the avoidance of doubt, the Parties acknowledge that the indemnification limitations set forth in Section 9.04 and Section 9.07 shall not apply with respect to any claims pursuant to this Section 8.03. ARTICLE IX INDEMNIFICATION 9.01. Survival. All representations and warranties respectively made by Seller and Purchaser in this Agreement shall survive the Closing until eighteen (18) months following the Closing Date, other than the representations and warranties set forth in Sections 2.01(a) and 2.01(b) (Status and Authority of Seller); the first two sentences of Section 2.02 (Organization of the Insurer and Insurance Licenses); the first three sentences of Section 2.03 (Capitalization of the Insurer); Section 2.04 (Subsidiaries); Section 2.21 (Brokers and Finders); and Sections 3.01(a) and 3.01(b) (Organization; Existence and Authority) (collectively, the “Fundamental Representations”), which shall survive until the expiration of the applicable statute of limitations period. Each of the covenants and agreements made in this Agreement to be performed prior to the Closing shall survive the Closing for a period of twelve (12) months following the Closing Date (unless the Agreements specified another survival period), and each of the covenants and agreement made in this Agreement to be performed following the Closing shall survive the Closing until they are fully performed or terminated in accordance with their respective terms. 9.02. Indemnification by Seller. Except as set forth in Section 8.03, from and after the Closing, Seller shall defend, indemnify and hold harmless Purchaser (for this purpose, the “Seller Indemnitee”) from and against any and all Losses that constitute, or arise out of or in connection with: (a) any breach of any of Seller’s representations and warranties under Article II; or (b) any breach by Seller in the performance or observance of any of its covenants under this Agreement.
38 9.03. Indemnification by Purchaser. Except as set forth in Section 8.03, from and after the Closing, Purchaser shall defend, indemnify and hold harmless Seller (for this purpose, the “Purchaser Indemnitee”) from and against any and all Losses that constitute, or arise out of or in connection with: (a) any breach of any of Purchaser’s representations and warranties under Article III; or (b) any breach by Purchaser in the performance or observance of any of its covenants under this Agreement. 9.04. Limitation of Liability. (a) Except for: (i) any claim pursuant to Section 8.03 or Section 9.08, (ii) the case of Fraud or intentional breach of a covenant, and (iii) any breach of a Fundamental Representation; no Party will have any liability to indemnify any other Party under this Article IX as it relates to this Agreement for any Losses (x) attributable to any individual claim indemnifiable under Section 9.02(a) or Section 9.03(a), as applicable, unless such Losses exceed $10,000 (and Losses for any individual claim below $10,000 shall be disregarded in determining whether Losses exceed the Basket), (y) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) or Section 9.03(a), as applicable exceeds one percent (1%) of the Final Purchase Price (the “Deductible”), in which event the Indemnitor shall be required to pay or be liable for such Losses that are in excess of the Deductible (subject to the Cap) and (y) to the extent the Indemnitor would be required to make indemnification payments under Section 9.02(a) or Section 9.03(a), other than in respect of the Fundamental Representations, in excess of ten percent (10%) of the Final Purchase Price (such amount, as applicable, the “Cap”). Except in the event of indemnification for claims described in Section 9.04(b), in no event shall any Party be required to make indemnification payments under Sections 9.02 and 9.03 in excess of the Final Purchase Price. (b) Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall limit or otherwise affect any Party’s rights or remedies with respect to: (i) indemnification claims for breaches of Section 8.03; (ii) indemnification claims under Section 9.08; or (iii) Fraud or intentional breach of any covenant (it being acknowledged and agreed that in the event any Indemnitee suffers any Losses by reason of a Party’s Fraud or intentional breach of any covenant, such Indemnitee shall be entitled to seek recovery therefor without regard to any limitation set forth in this Agreement (whether a temporal limitation, dollar limitation or otherwise)). (c) For purposes of this Article IX, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality or Material Adverse Effect qualification (other than in the case where such qualification is used to define or limit the scope of a list of contracts, plans or other similar list contained in the Seller Disclosure Schedule or the Purchaser Disclosure Schedule). 9.05. Representation, Settlement and Cooperation. If any Action is initiated against a Seller Indemnitee or Purchaser Indemnitee (each, an “Indemnitee”) and the Indemnitee intends to seek indemnification from Seller or Purchaser (each, an “Indemnitor”), as applicable, under
39 Section 8.03 or this Article IX on account of the Indemnitee’s involvement in the Action, then the Indemnitee shall give prompt notice to the applicable Indemnitor; provided, however, that the failure to so notify the Indemnitor shall not relieve the Indemnitor of its obligations under this Article IX but instead shall reduce those obligations by the amount of damages or increased costs and expenses attributable to the failure to give notice. Upon receipt of notice of an Action for which indemnification is available under this Article IX, the Indemnitor shall have the right, but not the obligation, to conduct and control, through counsel of its choosing, any third-party Action (a “Third-Party Claim”), and the Indemnitor may compromise or settle the same; provided, however, that the Indemnitor shall give the Indemnitee advance notice of any proposed compromise or settlement, and the Indemnitor shall not compromise or settle any Third-Party Claim without the prior written consent of the Indemnitee (which shall not be unreasonably withheld, conditioned or delayed) unless such compromise or settlement (a) provides for no relief other than the payment of monetary damages borne solely by the Indemnitor, (b) does not include any admission of wrongdoing or violation of Law on the part of the Indemnitee or its Affiliates and (c) includes as an unconditional term thereof the giving by the third-party claimant to the Indemnitee of a release from all Liability in respect thereof. The Indemnitor or Indemnitee, as applicable, may participate in any Action being defended against by the other at its own expense and shall not settle any Action without the prior consent of the other, which consent shall not be unreasonably withheld. The Indemnitor and Indemnitee shall reasonably cooperate with each other in the conduct of any Action. 9.06. Sole and Exclusive Remedy. Except for any equitable remedies that the Parties may pursue; after the Closing, the indemnification under this Article IX shall be the Parties’ sole and exclusive remedy, each against another, with respect to matters arising under this Agreement. The Parties waive and release any other rights, remedies, causes of action or claims of any kind or nature arising under this Agreement. 9.07. Other Limitations on Indemnity. (a) Notwithstanding anything herein to the contrary, Seller shall not be obligated to indemnify for Losses under this Article IX to the extent that such Losses were accrued for or counted as a liability or otherwise taken into account in the calculation of the Final Purchase Price (as such amount is finally determined pursuant to Article I hereof) or was accrued or otherwise reflected in the Financial Statements or Regulatory Statements. (b) Payments by an Indemnitor pursuant to Section 9.02 or Section 9.03 in respect of any Loss shall be reduced by the amount of (i) any Tax Benefit realized as a result of, and as a result of the circumstances giving rise to, such Loss by the Indemnitee or its Affiliates and (ii) any amounts actually recovered by the Indemnitee or any of its Affiliates under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. If the Indemnitee or any of its Affiliates receives a Tax Benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, the Indemnitee shall promptly pay over to the Indemnitor the amount of such Tax Benefit at such time or times as, and to the extent that, such Tax Benefit is realized by the Indemnitee or its Affiliate, but not in excess of the amount of the related indemnification payment. In the event that an insurance or other recovery is made by any
40 Indemnitee or any of its Affiliates with respect to any Loss for which any such person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnitor. (c) Seller shall not be liable under this Article IX in respect of any Loss that is contingent unless and until such contingent Loss becomes an actual liability and is due and payable. In no event shall Seller have liability hereunder for any consequential, special, incidental, indirect or punitive damages, lost profits, diminution in value or similar items, except if and to the extent any such damages are recovered against Indemnitee pursuant to a Third-Party Claim. (d) No Indemnitee shall be entitled to recover from any Indemnitor under this Article IX more than once in respect of the same Loss (notwithstanding that such Loss may result from breaches of multiple provisions of this Agreement. (e) The Indemnitees shall procure that all steps are taken and all assistance is given to avoid or mitigate any Losses, which in the absence of mitigation might give rise to or increase a Loss in respect of any claim under this Article IX. In the event an Indemnitee fails to so mitigate an indemnifiable Loss, the Indemnitor shall have no liability for any portion of such Loss that could reasonably have been avoided had the Indemnitee made such efforts. 9.08. Tax Indemnity. Seller will and hereby does indemnify and hold Purchaser, the Insurer, any Affiliate of Purchaser and their respective employees, officers, directors, successors and assigns harmless from and against any Losses resulting from or arising out of: (a) Taxes imposed on the Insurer for any Pre-Effective Period; (b) Taxes of any Person other than the Insurer for which the Insurer is liable by reason of (i) Treasury Regulations Section 1.1502-6 or by any other corresponding or similar state, local or foreign provision, by virtue of having been a member of any affiliated, consolidated, combined, or unitary group prior to the Closing Date or (ii) as a transferee or successor as a result of an event or transaction occurring before the Closing Date; (c) Taxes imposed on the Insurer as a result of any breach of warranty or misrepresentation under Section 2.07 of this Agreement; (d) any Section 338(h)(10) Election Taxes; and (e) Seller’s portion of Transfer Taxes pursuant to Section 8.03(f); except, in the case of any item otherwise described in such clauses (a) through (e) above, to the extent (x) any such Tax is reflected as a liability or otherwise as a reduction in the calculation of the Purchase Price pursuant to Section 1.02, (y) arising out of any matter described in Section 8.03(c)(iv) or (z) arising from the application of sections 13517(c)(3) or 13523(e) of the Tax Cuts and Jobs Act, P.L. No. 115-97. Subject to this Agreement, Purchaser shall be responsible for Taxes imposed on the Insurer allocable to any Post- Effective Period. ARTICLE X GENERAL PROVISIONS 10.01. Notices. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally, by email or by facsimile transmission or mailed by registered or certified mail, return receipt requested, to the parties at the following addresses or facsimile numbers:
41 If to Purchaser, to: Forza Insurance Holdings, LLC Travis Lewis, Executive Chairman [email protected] Three Chasewood 20445 Texas 249 Access Rd Houston, TX 77070 with a copy, which shall not constitute notice, to: Charles R. Welsh ACCEL Law Group P.C. [email protected] 65 LaSalle Road, Suite 400 West Hartford, CT 06107 If to Seller: American Coastal Insurance Corporation Brooke Adler, Esq. [email protected] 800 2nd Ave. S. St. Petersburg, FL 33701 with a copy, which shall not constitute notice, to: David Grosgold, Esq. [email protected] Debevoise & Plimpton LLP 66 Hudson Boulevard E. New York, New York 10001 All such notices, requests and other communications will (a) if delivered personally to the address as provided in this Section 10.01, be deemed given upon delivery, (b) if delivered by mail in the manner described above to the address as provided in this Section 10.01, be deemed given upon receipt (in each case regardless of whether such notice is received by any other Person to whom a copy of such notice, request or other communication is to be delivered pursuant to this Section 10.01) and (c) if delivered by email, then it will be deemed to be delivered at the time the email has been sent and, if after 5:00 p.m. Eastern Time, the following Business Day. Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice specifying such change to the other Party hereto. 10.02. Entire Agreement. This Agreement supersedes all prior discussions and agreements between the Parties with respect to the subject matter hereof and contains the sole and entire agreement between the Parties hereto with respect to the subject matter hereof. There are no oral agreements or understandings between the Parties regarding this agreement.
42 10.03. Expenses. Except as otherwise expressly provided in this Agreement, whether or not the transactions contemplated hereby are consummated, each Party will pay its own costs and expenses, including legal fees, incurred in connection with the negotiation, execution and Closing of this Agreement and the transactions contemplated hereby. 10.04. Waiver. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof; provided that no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative and not alternative. 10.05. Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party hereto (each instance, an “Amendment”). The Purchaser shall provide copies of any Amendments to the DFS for its review and approval. 10.06. No Third-Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each Party hereto and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person. 10.07. No Assignment. Except as specified herein, neither this Agreement nor any right, interest or obligation hereunder may be assigned by any Party hereto without the express consent of the non-assigning party, and any attempt to assign without consent to do so will void this Agreement. 10.08. Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof. 10.09. Severability. If any term, provision, agreement, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be illegal, invalid, void or unenforceable, the remainder of the terms, provisions, agreements, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the fullest extent possible. 10.10. Specific Enforcement. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached or threatened to be breached, and that an award of money damages would be inadequate in such event. Accordingly, it is acknowledged that the Parties shall be entitled to equitable relief, without proof of actual damages, but subject in all cases to the terms and conditions herein set forth, including an injunction or injunctions or court Orders for specific performance to prevent breaches of this Agreement and to enforce specifically the
43 terms and provisions of this Agreement (including any court Order sought by a Party to cause the other Party to perform its agreements and covenants contained in this Agreement), in addition to any other remedy to which they are entitled at Law or in equity as a remedy for any such breach or threatened breach. Each Party further agrees that no other Party or any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 10.10, and each Party (a) irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument and (b) shall cooperate fully in any attempt by the other Party or Parties in obtaining such equitable relief. Each Party further agrees that the only permitted objection that it may raise in response to any action for equitable relief is that it contests the existence of a breach or threatened breach of this Agreement. 10.11. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the state of New York applicable to a contract executed and performed in such state without giving effect to the conflicts of laws principles that would result in the application of the Laws of any other jurisdiction. 10.12. Venue; Waiver of Jury Trial. (a) Each of the Parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of state and federal courts of competent jurisdiction for New York County, New York for purposes of enforcing this Agreement. In any such action, suit or other proceeding, each of the Parties hereto irrevocably and unconditionally waives and agrees not to assert by way of motion, as a defense or otherwise, any claims that it is not subject to the jurisdiction of the above court, that such action or suit is brought in an inconvenient forum or that the venue of such action, suit or other proceeding is improper. Each of the Parties hereto also agrees that any unappealable judgment against a Party hereto in connection with any action, suit or other proceeding shall be conclusive and binding on such Party and that such award or judgment may be enforced in any court of competent jurisdiction either within or outside of the United States. A certified or exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of such award or judgment. Without limiting the foregoing, each Party agrees that service of process on such Party by written notice as provided in Section 10.01 shall be deemed effective service of process on such Party. (b) Each of the Parties hereto hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or the transactions contemplated hereby. The waivers in Section 10.12(a) and in this Section 10.12(b) shall survive the termination of this Agreement. 10.13. Construction. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against any Party regardless of which party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting party. Disclosure of any matter in any section of Seller Disclosure Schedule shall be deemed disclosed for other Sections in this Agreement to the extent the relevance of such disclosure to such other Sections in this Agreement is reasonably apparent on the face of such disclosure. All references to “dollars” or “$” in this
44 Agreement refer to United States dollars, which is the currency used for all purposes in this Agreement. 10.14. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. ARTICLE XI DEFINITIONS As used in this Agreement, the following defined terms shall have the meanings indicated below: “Accountants” has the meaning ascribed to it in Section 1.02(c). “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at Law or in equity. “Actuarial Memoranda” has the meaning ascribed to it in Section 2.16(a). “Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such specified Person. “Agreement” has the meaning ascribed to it in the preamble to this Agreement. “Amendment” has the meaning ascribed to it in Section 10.05. “Annual Financial Statements” has the meaning ascribed to it in Section 2.05(a). “Annual Regulatory Statements” has the meaning ascribed to it in Section 2.05(b). “Assets and Properties” of any Person means all assets and properties of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible and wherever situated), operated, owned or leased by such Person. “Basket” has the meaning ascribed to it in Section 9.04. “Books and Records” means all files, documents, instruments, papers, books and records of the Insurer to the extent related to its Business, including, without limitation, financial statements, Tax Returns and related work papers and letters from accountants, budgets, pricing guidelines, ledgers, journals, deeds, title policies, minute books, stock certificates and books, stock transfer ledgers, Material Contracts, Licenses, customer lists, computer files and programs, retrieval programs, operating data and plans and environmental studies and plans; provided that this shall not include any of the organizational documents, Tax Returns, corporate seals, minute books, Contracts, Licenses, customer lists, computer files and programs, retrieval programs,
45 operating data and plans and environmental studies and plans and other corporate records of the Seller. “Business” means the key business operations of the Insurer of issuing policies of homeowner’s insurance in the state of New York. “Business Day” means a day other than (a) a Saturday, (b) a Sunday or (c) any other day on which commercial banks are required, or authorized, not to open for business in the state of New York. “Cap” has the meaning ascribed to it in Section 9.04. “Closing” has the meaning ascribed to it in Section 1.04(a). “Closing Balance Sheet” has the meaning ascribed to it in Section 1.02(c). “Closing Date” has the meaning ascribed to it in Section 1.04(a). “Code” means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder. “Confidential Information” means non-public, confidential or proprietary information, in whatever form recorded or transmitted, including, but not limited to information concerning Purchaser’s business plans for the Insurer, Seller’s business plans, the terms of the transactions contemplated by this Agreement, any written, oral or other information related to the negotiation hereof and thereof, strategy, customers, prospects, employees, agents, producers, employment and independent contractor agreements, finances, assets, liabilities, internal procedures and related matters, any analyses, compilations, studies, financial information, plans, designs, tax information, contracts, contract language or documents; provided that “Confidential Information” shall not include information (a) that is in, or that becomes publicly available other than as a result of a breach of Section 8.02(i), (b) that was lawfully in or came into the receiving party’s or its Affiliates’ possession, free from any obligation of confidentiality to the disclosing party, (c) that the disclosing party confirms in writing to the receiving party is disclosed on a non-confidential basis or (d) that the receiving party or its Affiliates independently develops. “Contract” means any agreement, lease, evidence of Indebtedness, mortgage, indenture, security agreement or other contract. “Data Activities” means the collection, storage, use, access, disclosure, processing, security and transfer of Personal Data. “Demotech” means Demotech, Inc. “DFS” means the New York Department of Financial Services. “Effective Date” has the meaning ascribed to it in the preamble to this Agreement. “Employee Plans” has the meaning ascribed to it in Section 2.13(a).
46 “Employees” means on any date all officers, directors, managers, consultants and employees of the Insurer who on such date have formerly been or are employed by the Insurer or by any of its Affiliates and whose primary responsibility is the oversight or management of the Insurer’s business, whether actively employed, on approved leave of absence or layoff or on salary continuation, sickness, accident, disability or military leave. “Encumbrance” means any lease, Lien, adverse claim, charge, Option, right of first refusal, servitude, security interest, mortgage, pledge, deed of trust, easement, encumbrance, conditional sale or other title retention agreement, defect in title or other restrictions of a similar kind. “Equity Financing” has the meaning ascribed to it in Section 3.04(b). “Equity Statement” has the meaning ascribed to it in Section 1.02(c). “ERISA” has the meaning ascribed to it in Section 2.13(a). “ERISA Affiliate” has the meaning ascribed to it in Section 2.13(a). “Estimated Closing Balance” has the meaning ascribed to it in Section 1.02(a). “Estimated Equity Statement” has the meaning ascribed to it in Section 1.02(a). “Estimated Shareholders’ Equity” has the meaning ascribed to it in Section 1.02(a). “Estimated Purchase Price” has the meaning ascribed to it in Section 1.02(b). “Estimated Shareholders’ Equity” has the meaning ascribed in Section Error! Reference source not found.. “Final Purchase Price” has the meaning ascribed to it in Section 1.02(d). “Financial Statements” has the meaning ascribed in Section 2.05(a). “Fraud” means an intentional breach of the representations and warranties contained in this Agreement as of the date of this Agreement in circumstances where (a) the Party making the relevant representations and warranties hereunder had actual knowledge that such representations and warranties were incorrect in a material respect as of the date hereof, (b) such Party made such representations and warranties with the specific intent to deceive the other Party and induce the other Party to rely on such representations and warranties to its detriment and (c) the other elements of common law fraud under New York Law are satisfied. “Fundamental Representations” has the meaning ascribed to it in Section 9.01. “GAAP” means generally accepted accounting principles of the United States of America consistently applied, as in effect from time to time. “Governmental Approvals” means any approval or consent required from a Governmental Authority in connection with the change of control of the Insurer as contemplated by this Agreement.
47 “Governmental Authority” means any federal, state or local government or any court of competent jurisdiction, administrative agency or commission or other domestic governmental authority or instrumentality. “Indebtedness” of any Person means all obligations of such Person (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar instruments, (c) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of business and consistent with past practices), (d) under capital leases and (e) in the nature of guarantees of the obligations described in clauses (a) through (d) above of any other Person. “Indemnitee” has the meaning ascribed to it in Section 9.05. “Indemnitor” has the meaning ascribed to it in Section 9.05. “Insurance Contracts” means any and all of the policies, binders, slips, certificates, annuity contracts and other agreements of insurance, whether individual or group, and including all applications, supplements, endorsements, riders and ancillary agreements in connection therewith, issued, assumed or underwritten by the Insurer on or prior to the Closing Date. “Insurer” has the meaning ascribed to it in the preamble to this Agreement. “Insurer Intellectual Property” means all Intellectual Property that is owned by the Insurer. “Insurer IP Registrations” means Insurer Intellectual Property that is subject to any issuance registration, application or other filing by, to or with any Governmental Authority or authorized private registrar in any jurisdiction, including registered trademarks, domain names and copyrights, issued and reissued patents and pending applications for any of the foregoing. “Insurer’s Shareholders’ Equity” has the meaning ascribed to it in Section 1.02(a). “Intellectual Property” means all (a) trademarks, service marks, domain names and other indicia of source or origin, (b) copyrights, (c) patents and (d) trade secrets, and all registrations or applications for registration of the foregoing. “Interim Balance Sheet” has the meaning ascribed to it in Section 2.07(g). “IRS” means the United States Internal Revenue Service. “Knowledge” with respect to the (a) Seller means the actual knowledge of a particular fact or matter of the following individuals: B. Bradford Martz, Peter Resnick and Brooke Adler and (b) Purchaser means the actual knowledge of a particular fact or matter of the following individual: Travis L. Lewis. “Law” or “Laws” means all laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law of the United States, or any state, county, city or other political subdivision or of any Governmental Authority.
48 “Lease” means any lease, leasehold interest, sublease or license, including any amendment with respect thereto, pursuant to which the Insurer or any of its Affiliates uses or holds any material Leased Real Property used primarily for the benefit of the Insurer. “Leased Real Property” means the real property leased by the Insurer, as tenant, and used to operate the Business, together with all buildings and other structures, facilities or improvements currently located thereon, all fixtures thereto and all easements, licenses, rights and other appurtenances relating to the foregoing. “Liability” or “Liabilities” means all Indebtedness, obligations and other liabilities of a Person (whether absolute, accrued, contingent, possible, fixed or otherwise, or whether due or to become due). “Licenses” means all licenses, Permits, certificates of authority, authorizations, approvals, registrations, franchises and similar consents granted or issued by any Governmental Authority. “Lien” means any security interest, pledge, mortgage, lien, charge, restriction or other encumbrance, including any Tax lien (other than a Permitted Encumbrance). “Loss” means any and all liabilities, obligations, claims, contingencies, fines, deficiencies, demands, assessments, losses, damages (but excluding incidental or consequential damages), costs and expenses, including, without limitation, reasonably incurred attorneys’ fees. “Material Adverse Effect” shall mean any state of facts, change, development, event, effect, condition or occurrence that, individually, generally or in the aggregate, has had or could reasonably be expected to (a) have a material adverse effect on any aspect of the business, assets, properties, financial condition or results of operations of the Insurer or (b) prevent the consummation by the Seller of the transactions contemplated by this Agreement; provided, however, that none of the following facts, changes, events, developments, effects, conditions or occurrences, alone or in combination, shall be deemed to constitute, or be taken into account in determining whether there has been or would be, a Material Adverse Effect: (i) business, regulatory or other conditions that generally affect the sector in which the Insurer operates; (ii) general economic conditions, including changes in the credit, debt or financial capital markets, securities markets, currency markets or other financial markets, in each case, in the United States or anywhere else in the world; (iii) any changes in, or actions required to be taken under, applicable Laws; (iv) any global, national or regional political conditions, including hostilities, acts of war, sabotage or terrorism or military actions or any escalation, worsening or diminution of any such hostilities, acts of war, sabotage or terrorism or military actions existing or underway; (v) any hurricane, earthquake, flood, tsunami, tornado, mudslide, wildfire or other natural disaster and other force majeure events in the United States or any other country or region in the world; (vi) any outbreak of contagious disease, epidemic or pandemic (including COVID-19) or the continuation, escalation or material worsening thereof, and the responses to the foregoing of any governmental entity; (vii) the failure to achieve any projections, forecasts, estimates, plans, predictions, performance metrics or operating statistics; (viii) the public announcement of the transaction; (ix) compliance with the terms of this Agreement, or any action or omission taken with the consent or at the request of Purchaser; and (x) the effect of any actions taken by Purchaser or its Affiliates.
49 “Material Contract” has the meaning ascribed to it in Section 2.11(a). “Objections Statement” has the meaning ascribed to it in Section 1.02(c). “Offer Conditions” has the meaning ascribed to it in Section 5.03(a). “Option” with respect to any Person means any security, right, subscription, warrant, option or other Contract that gives the right to purchase or otherwise receive or be issued any shares of capital stock of such Person or any security of any kind convertible into or exchangeable or exercisable for any shares of capital stock of such Person. “Order” means any writ, judgment, decree, injunction or similar order of any Governmental Authority (in each such case whether preliminary or final). “Pandemic Response Laws” shall mean the Coronavirus Aid, Relief, and Economic Security Act, the Families First Coronavirus Response Act, the COVID-related Tax Relief Act of 2020, and the Presidential Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster (as issued on August 8, 2020 and including any administrative or other guidance published with respect thereto by any Governmental Authority (including IRS Notice 2020-65)). “Party” and “Parties” have the meanings ascribed to them in the preamble of this Agreement. “Permits” means all permits, licenses, authorizations, consents, approvals and franchises from Governmental Authorities required to conduct the Insurer’s Businesses as currently conducted. “Permitted Encumbrances” means: (a) Encumbrances for Taxes or other governmental charges not yet due and payable or that are being contested in good faith and for which adequate accruals or reserves have been established under GAAP or SAP, as applicable; (b) mechanics’, carriers’, warehousemen’s, workers’ and other similar Encumbrances; and (c) easements, rights of way, building, zoning and other similar encumbrances or title defects and that do not materially impair the use of the underlying property in the ordinary course. “Person” means any natural person, corporation, general partnership, limited partnership, proprietorship, other business organization, trust, union, association or Governmental Authority. “Personal Data” means all data relating to one or more individuals that is personally identifying, including, without limitation, data that identifies an individual or, in combination with any other information or data available to the Insurer, is capable of identifying an individual. “Post-Effective Period” means, with respect to the Insurer, any Tax Period beginning on and after the Closing Date and the portion of any Straddle Period beginning on the Closing Date. “Pre-Effective Period” means, with respect to the Insurer, any Tax Period ending prior to the Closing Date and the portion of any Straddle Period ending on the Closing Date.
50 “Post-Signing Period” has the meaning ascribed to it in Article IV. “Privacy Agreement” means a contract (or any portion thereof) to which the Insurer is a party that is applicable to Data Activities. “Privacy and Data Security Policies” means, collectively, written policies relating to Data Activities, including, without limitation, a publicly posted website privacy policy, mobile app privacy policy, annual privacy statements required under the Financial Services Modernization Act of 1999, as amended (also known as the Gramm-Leach-Bliley Act) and a comprehensive information security program that includes appropriate written information security policies. “Privacy Laws” means, collectively, all federal, state, local and foreign laws, rules and regulations pertaining to: (a) data security, cyber security and e-commerce, including, without limitation, the Health Insurance Portability and Accountability Act of 1996, Title II, Subtitle F, Sections 261-264, Public Law 104-191 and the Health Information Technology for Economic and Clinical Health Act, as amended, the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. (including the Fair and Accurate Credit Transactions Act of 2003) and the Financial Services Modernization Act of 1999, as amended (also known as the Gramm-Leach-Bliley Act) and in each case, the rules implemented thereunder; and (b) Data Activities. “Producer” means any producer, broker, agent, general agent, managing general agent, master broker agency, broker general agency, financial specialist or group of the same or other Person responsible for marketing or producing Insurance Contracts on behalf of the Insurer prior to the Closing. “Producer Contract” means any in-force written contract or agreement entered into by the Insurer or any Affiliate with respect to the Business and the solicitation and sale of Insurance Contracts. “Purchase Price” has the meaning ascribed to it in Section 1.02(a). “Purchaser” has the meaning ascribed to it in the preamble of this Agreement. “Purchaser Disclosure Schedule” means the disclosure schedules delivered by the Purchaser to the Seller prior to the execution and delivery of this Agreement. “Purchaser Financial Statements” has the meaning ascribed to it in Section 3.06. “Purchaser Indemnitee” has the meaning ascribed to it in Section 9.03. “Rate and Form Approval” has the meaning ascribed to it in Section 5.01(a). “Regulatory Approval” has the meaning ascribed to it in Section 5.01(a). “Regulatory Statements” has the meaning ascribed to it in Section 2.05(b). “Reinsurance Contracts” means all Contracts, treaties, facultative certificates, policies or other arrangements to which the Insurer is a party or by which the Insurer is bound or subject,
51 providing for ceding or assumption of reinsurance, excess insurance or retrocession, including, without limitation, all reinsurance policies and retrocession agreements, in each case as such Contract, treaty, facultative certificate, policy or other arrangement may have been amended, modified or supplemented irrespective of how such arrangement is accounted for. “Representatives” means the Employees, agents and professional advisers of the relevant Person. “Reserves” has the meaning ascribed to it in Section 2.16(b). “Resolution Period” has the meaning ascribed to it in Section 1.02(c). “SAP” means the statutory accounting principles, procedures and methods prescribed or permitted by the National Association of Insurance Commissioners as modified by the applicable statutes of the state of New York and the regulations and rules of the New York Department of Financial Services, consistently applied. “Section 338(h)(10) Election” has the meaning ascribed to it in Section 8.03. “Section 338(h)(10) Election Taxes” has the meaning ascribed to it in Section 8.03. “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. “Seller” has the meaning ascribed to it in the preamble to this Agreement. “Seller Disclosure Schedule” has the meaning ascribed to it in Article II. “Seller Group” means that group of affiliated companies of which Seller or any Affiliate of Seller (other than the Insurer) is the common parent. “Seller Indemnitee” has the meaning ascribed to it in Section 9.02. “Shares” has the meaning ascribed to it in the recitals to this Agreement. “Statutory Statements” shall mean statements of admitted assets, liabilities and capital and surplus of the Insurer, and the related statements of operations, changes in capital and surplus and cash flows prepared in accordance with SAP. “Straddle Period” means, with respect to the Insurer, any Tax Period that begins prior to and ends on or after the Closing Date. “Tax Authority” means the IRS and any other state, local or foreign Governmental Authority responsible for the administration of any Taxes. “Tax Benefit” means, with respect to any Loss, the net reduction in cash Taxes, if any, actually realized by the Indemnitee or its Affiliates, treating the applicable tax item as the last item used in calculating such net reduction in cash Taxes and taking into account the actual or anticipated receipt of the related indemnity payment.
52 “Tax Matter” has the meaning ascribed to it in 8.03(d)(i). “Tax Period” means, with respect to any Tax, the period for which the Tax is reported as provided under applicable Tax Laws. “Tax Records” has the meaning ascribed to it in Section 8.03. “Tax Returns” means a report, return or other information required to be filed with or furnished to a governmental entity with respect to Taxes. “Tax” or “Taxes” means any federal, foreign, state, county or local taxes, charges, fees, levies or other assessments in the nature of a tax, including all net income, gross income, sales and use, ad valorem, transfer, gains, profits, excise, franchise, real and personal property, gross receipt, capital stock, production, business and occupation, disability, employment, payroll, license, estimated, stamp, custom duties, severance or withholding taxes or charges imposed by any governmental entity, and includes any interest and penalties (civil or criminal) on or additions to any such taxes and any expenses incurred in connection with the determination, settlement or litigation of any tax liability. “Third-Party Claim” has the meaning ascribed to it in Section 9.05. “Transaction Documents” means this Agreement. “Transfer Taxes” has the meaning ascribed to it in Section 8.03. “Transferred Employees” means each Employee who performs services for the Insurer immediately before the Closing and who is listed on Schedule 5.03 of the Seller Disclosure Schedule, as updated by the Seller, and delivered to the Purchaser, no later than three (3) Business Days prior to the Closing. “Treasury Regulations” means the final or temporary regulations that have been issued by the U.S. Department of Treasury pursuant to its authority under the Code. All citations to the Treasury Regulations shall include any amendments or any substitute or successor provisions thereto. “WARN Act” means the United States Worker Adjustment and Retraining Notification Act of 1988, as amended, and any applicable state or local mass layoff or plant-closing Law. “1506 Application” has the meaning ascribed to it in Section 5.01(a) and shall refer to the application for approval of acquisition of control of the Insurer made to the DFS in accordance with New York Insurance Law Section 1506. [Signature Page Follows]
Execution Version 1 PROGRAM ADMINISTRATOR AGREEMENT This Program Administrator Agreement (hereinafter referred to as the “Agreement”), dated May 9, 2024, between Interboro Insurance Company (hereinafter referred to as the “Company”), and SageSure Insurance Managers, LLC (hereinafter referred to as the “Administrator”), (collectively, the “Parties” and individually, a “Party”), shall grant the Administrator the authority to exercise the powers stated in this Agreement and any Schedule attached hereto as applicable to the Administrator. RECITALS 1. The Company is a New York domiciled property and casualty stock insurer that is authorized to transact insurance. 2. The Administrator is a licensed producer and a program manager and has expertise, systems and personnel to provide insurance program management for policies issued by Company. 3. The Company desires to retain the Administrator, on an exclusive basis within the Territory (as hereinafter defined), to market, solicit, sell, underwrite, and generally manage the Company business, as requested by the Company. 4. The Company desires to procure certain technology and intellectual property services through the Administrator, from the Administrator’s affiliate, SageSure Capital Holdings, Inc. (“SSCH”). 5. The Company desires to avail itself of the services provided by Administrator as hereinafter set forth subject to the supervision of the Company. AGREEMENT The Company and the Administrator agree as follows: 1. Authority In carrying out the business contemplated under this Agreement, the Administrator agrees and is hereby authorized: (A) to procure and evaluate applications for insurance of the type set forth in Schedule A to this Agreement; (B) to underwrite risks and determine appropriate premiums for insurance policies of the type set forth in Schedule A in accordance with: (i) the underwriting guidelines established by the Company and provided to the Administrator in writing from time to time (hereinafter the “Underwriting Guidelines”) and (ii) applicable laws and regulations; (C) to negotiate, quote, bind, arrange for countersignature of and deliver such policies, endorsements, certificates, binders, and related financial responsibility filings, if any, pursuant to this Agreement, the Underwriting Guidelines and applicable laws and regulations;
Execution Version 2 (D) to have “Authorized Representatives” of the Company identified in Schedule B to this Agreement sign policies, endorsements, certificates, binders, and related financial responsibility filings, if any, for insurance coverage issued pursuant to this Agreement. Schedule B may be amended or supplemented from time to time by a writing signed by the Company; (E) to effect cancellation and non-renewal of policies in accordance with applicable laws, regulations and the Underwriting Guidelines; and (F) to provide, through its affiliate, SSCH, the technology services and intellectual property described on Schedule G attached hereto. In addition, and subject to the restrictions on authority contained elsewhere in this Agreement, the Administrator shall have the required incidental authority necessary to fulfill its obligations hereunder, and such additional authority that may be extended by the Company in writing. 2. Restrictions on Authority The Administrator further agrees that: (A) the Administrator shall not underwrite risks and/or determine appropriate premium for insurance policies other than as prescribed in Schedule A and the Underwriting Guidelines, unless the Administrator requests and receives prior written approval from the Company for such risks. Any approval granted by the Company is limited to the specific risks for which approval has been sought unless expressly noted otherwise by the Company; (B) the Administrator shall not waive any condition or make any change to the Company's insurance policies, endorsements or applications without the Company’s prior written consent; (C) the Administrator shall not, without the Company’s prior written consent, (i) appoint insurance agents or sub-insurance agents to bind insurance coverage or countersign policies on behalf of the Company, or (ii) make any other agreement rendering the Company liable for the payment or repayment of expenses, commissions or other sums; (D) the Administrator shall not negotiate, solicit, quote, bind, arrange for countersignature of or deliver on behalf of the Company any policies, endorsements, certificates or binders in any jurisdiction or territory except those listed in Schedule D to this Agreement; (E) the Administrator shall not affect any flat cancellations of policies issued pursuant to this Agreement, unless the flat cancellation is within the first 30 days after the effective date of the policy and is in compliance with applicable Underwriting Guidelines and law, including, but not limited to, laws and regulations applicable to the return of premium. If any flat
Execution Version 3 cancellation is processed, the Administrator shall retain in its underwriting file proof of such flat cancellation by return of the original policy or a lost policy statement executed by the insured; (F) the Administrator shall not bind coverage after the effective date of a policy without prior written approval of the Company; provided, in the event of an inadvertent failure to bind a policy on the proposed effective date (due to communications error or otherwise), then the Administrator is authorized to bind the policy with the proposed effective date without prior written approval of the Company as long as (i) such binder is processed within (3) business days following the effective date, (ii) the prospective insured has signed an application, or otherwise made a commitment to purchase a policy, on or before the proposed effective date, (iii) submission of a statement of no loss, and (iv) all other criteria set forth in the Underwriting Guidelines are satisfied; (G) the Administrator shall not commit the Company to participate in reinsurance or reinsurance syndicates; nor shall the Administrator bind reinsurance or retrocessions on behalf of the Company, except that the Administrator may bind facultative reinsurance contracts pursuant to obligatory facultative agreements if the Administrator and the Company enter into a contract containing reinsurance underwriting guidelines, including, for both reinsurance assumed and ceded, a list of reinsurers with which such automatic agreements are in effect, the coverages and amounts or percentages that may be reinsured and commission schedules. This sub-paragraph shall not preclude the Administrator from consulting with the Company regarding reinsurance for coverage issued pursuant to this Agreement. (H) the Administrator may not use or permit or authorize the use of the Company's name, logo or other identifying mark(s) in any advertising or promotional material without the Company’s prior written consent and then only in strict compliance with any restrictions or guidelines contained in such consent; and (I) the Administrator shall not charge any broker fees, policy fees, or service fees without express written authorization from the Company, other than the fees listed in Schedule C; (J) the Administrator shall not appoint a sub-MGA; (K) the Administrator shall not jointly employ an individual who is employed with the Company; and (L) the Administrator shall not permit its sub-producer to serve on the Company’s board of directors. 3. Warranties, Representations and Covenants The Administrator warrants, represents, and covenants:
Execution Version 4 (A) that: (i) the Administrator and the “Authorized Representatives” identified in Schedule B of this Agreement have all authorizations necessary to conduct the business described in this Agreement, and (ii) the Administrator and the “Authorized Representatives” will maintain during each Term of this Agreement and for the period of time during which it has continuing obligations under this Agreement all authorizations necessary to conduct the business described in this Agreement. To the extent Authorized Representatives are required to hold and maintain a license for the Company to perform its obligations, and in the event that any such license held by an Authorized Representative expires or terminates, for any reason, the Administrator shall immediately notify the Company and such Authorized Representative shall not be authorized to exercise any authority granted herein in any state or states in which the license has been lost as of the date of such license(s) expiration or termination. In the event that any such license held by the Administrator expires or terminates, for any reason, the Administrator shall immediately notify the Company and the Administrator’s authority shall be immediately suspended in the applicable state or states as of the date of such license(s) expiration or termination, unless within one week from the date the Company receives notice of the license expiration or termination from the Administrator, the Company agrees, in writing, to modify the provisions set forth herein. However, nothing in this section shall affect the Administrator’s obligation to perform any obligation under this Agreement for which a license is not required; (B) that the Administrator shall operate at all times in compliance with this Agreement and the Schedules attached hereto and with all applicable laws and regulations. The Administrator agrees that it is its responsibility to know and comply with the laws and regulations applicable to this Agreement and the business contemplated hereunder, including, but not limited to: (i) laws and regulations regarding notices to insureds and prospective insureds; and (ii) record retention laws and regulations; (C) that the Administrator shall maintain at its own cost and expense, during each Term of this Agreement and for the period of time during which it has continuing obligations under this Agreement, an insurance policy (policies) covering errors and omissions, first-party cyber liability, third-party cyber liability, general liability and commercial automobile liability exposures in the amount of $5,000,000, such limit shall apply independently to each coverage and not as an aggregate limit for all, with an insurer acceptable to the Company (a copy of which has been provided to the Company prior to the execution of this Agreement) and obtain from the policy issuing insurer an original certificate of insurance addressed to (and which shall be forwarded to) the Company. The Administrator agrees to obtain written approval from the Company before any change is made to such errors and omissions insurance policy, unless the change is renewal of the policy for a one-year policy period, an increase in policy limits, or a change in premium. For each such change and for each renewal of such policy, the Administrator shall obtain and forward to the Company an original certificate of insurance addressed to the Company as evidence of the terms of such amended or renewed errors and omissions insurance policy;
Execution Version 5 (D) that within forty-five (45) days after the execution of this Agreement, the Administrator shall provide the Company with a blanket fidelity bond in the amount of at least $1,000,000. Such bond shall, for the duration of this Agreement and the period in which the Administrator has any continuing obligations hereunder, contain such terms as are reasonably satisfactory to the Company; (E) that the Administrator now has and shall maintain at its sole expense for the duration of its obligations under this Agreement a staff consisting of an adequate number of competent and trained personnel who have the underwriting expertise to select, underwrite, and price the business covered by this Agreement; and (F) that the Administrator shall maintain at its sole expense throughout each Term of this Agreement a staff consisting of an adequate number of competent and trained personnel, including computer support personnel, such supplies and equipment, including computer hardware and software, and such procedures as are necessary to administer and supervise all aspects of the business covered by this Agreement, including but not limited to the servicing of policies and the billing and collection of premium due from policyholders, Authorized Representatives and sub-insurance producers. 4. Additional Duties of the Administrator The Administrator also agrees: (A) to collect, receive and account for premiums on insurance policies issued pursuant to this Agreement, and to remit funds to the Company as requested by the Company and as required under this Agreement; (B) that the Administrator shall be responsible to ensure that its operations and the business produced complies with all applicable laws and regulations. Without limiting the foregoing, the Administrator agrees that it shall cooperate with the Company or its designated representative to ensure that the business produced is in compliance with underwriting loss control requirements as specified in writing by the Company. In the event the performance of any duty or obligation of the Administrator herein would constitute the unauthorized practice of insurance by the Company in an applicable jurisdiction, the Administrator shall immediately notify the Company and the Administrator’s authority shall be immediately suspended or modified in such jurisdiction. If such a suspension shall frustrate the purposes of this Agreement, the Agreement shall terminate unless the Parties agree to amend this Agreement so that the performance by the Administrator does not constitute the unauthorized practice of insurance by the Company; (C) the Administrator shall verify, according to applicable law, that all sub-insurance producers: (i) are properly licensed to transact the kinds of insurance for which the producer is appointed, (ii) maintain Agents and Brokers Errors and Omissions Insurance with a limit of
Execution Version 6 no less than $1,000,000, and (iii) are appointed by the Company where required; (D) except as otherwise expressly noted herein or as agreed to by the Company in writing, that the Administrator shall be responsible for all reasonable costs, fees and expenses incurred in connection with the production of business hereunder, including but not limited to credit reports and inspection reports for policyholders, and for all costs, fees and expenses incurred in connection with agent appointments of such individuals; (E) that the Administrator shall comply with reasonable instructions or directions received from the Company; (F) that the Administrator shall maintain updated Company manuals (e.g., ISO or NCCI) for all lines of business to which this Agreement now or hereinafter applies if necessary; (G) if the Administrator cancels or non-renews policies in accordance with applicable laws, regulations and the Underwriting Guidelines, that the Administrator shall retain copies of any notices (and original proofs of mailing of same) sent to policyholders to effect such cancellation or non-renewal and shall make copies of the notices and the original proofs of mailing available to the Company upon request; (H) that, unless otherwise required by law or regulations, the Administrator shall refer State Insurance Department contacts, requests or inquiries regarding matters relating to business subject to this Agreement, including requests for access to or copying of records, to the Company. In the event of any such contacts, requests or inquiries, the Administrator shall notify the Company immediately of the contact. In addition to the obligations specified above, unless prohibited by law or regulation, the Administrator shall immediately notify the Company of any contact, request or inquiry by any other governmental official or agency regarding matters relating to business subject to this Agreement. The Administrator will cooperate with the Company in the resolution of any complaints or inquiries by a governmental agency; (I) to keep accurate, complete and separate, written records of all transactions affecting business written on behalf of the Company under this Agreement and to file all necessary affidavits and reports as may be required by applicable laws and regulations. Without limiting the foregoing, the Administrator agrees, at a minimum, to maintain copies of all policy forms, rate schedules, rules and manuals supplied by the Company; provided, however, that the Company shall also maintain separate records of business written under this Agreement. The Administrator shall also maintain a policy register and shall account for all policies furnished or supplied to the Company. The underwriting files to be maintained by the Administrator shall at a minimum consist of a policy application (signed by the policyholder if required by law or regulation), rating worksheets, true and complete records of all transactions and correspondence with policyholders, producers, and the Company,
Execution Version 7 including but not limited to copies of the policies issued, and proof of mailing for all notices required by law or regulation, including but not limited to cancellation and non-renewal notices; (J) that the separate records (whether in paper or electronic form) of business for the Company must be maintained by the Administrator for the greater of: (i) seven (7) years from the termination of the policy to which the record relates; or (ii) the length of time required by applicable law or regulation. Before the Administrator destroys or discards any of such records, the Administrator agrees to give the Company 60 days’ notice of its intention to do so. If during that 60-day period the Company expresses the desire to maintain such files, the Administrator shall, at Company’s expense and direction, send or deliver such files in electronic format, to the location directed by Company. In the event this Agreement is terminated by either Party, the Administrator shall maintain the records in accordance with the preceding sub-paragraph, and in the event that the Company requests duplicate copies of the records, the Administrator shall provide duplicates in electronic format to the Company at the Company’s expense. Also, in the event of an examination by any authority which regulates the Company, Administrator agrees to cooperate with the Company during any such examination, inspection and/or audit and agrees that it shall make any and all files available to such regulatory authority at the time and place the Company specifies. In the event duplicate files need to be shipped, the Administrator and the Company shall, equally, bear the cost of duplicating and shipping such files. The Administrator shall certify that the duplicate files provided for review by the regulatory authority are true and complete copies of the original files; (K) that the records maintained relating to business produced under this Agreement are jointly owned by the Company and the Administrator. Accordingly, all books, papers and records relating to the business of the Company under this Agreement or any other agreement related thereto, shall be open for inspection or copying by duly authorized representatives of the Company or regulatory authorities having jurisdiction over Company business, at the Company’s expense, at all times during the continuance of this Agreement and any policies issued hereunder, and for the duration of the records retention requirements hereunder and shall survive the suspension or termination of this Agreement. Subject to sub-paragraph (K) above, the right of access and copying shall also be available to any state Commissioner, Director or Superintendent of Insurance, or their designees, with jurisdiction over the Company. Further, the Administrator and the Company agree that they will not deprive or impede the other Party’s rights under this sub-paragraph due to the existence of a dispute or disagreement between the Parties. Notwithstanding any other provision of this Agreement, the Administrator agrees that its failure to fully comply with this provision: (i) could cause serious and irreparable harm to
Execution Version 8 the Company, and (ii) serves as adequate justification for the Company’s seeking and obtaining an ex parte court order or injunction permitting the Company (or its duly authorized representatives) access to such records for immediate removal or copying at the Administrator’s offices or at some other location approved by the court issuing the order or injunction. If copying of the records is authorized, the Administrator agrees to reimburse the Company for all costs and expenses incurred in copying the records; (L) that the Administrator shall establish and maintain a disaster recovery plan and meet all federal, state and local requirements relating to data retention and security and shall provide the Company with a copy of the plan and any amendments thereto at least annually; (M) that it will forward to the Company weekly and in no event later than 10 days after the date any policy or endorsement is issued pursuant to this Agreement (and in no event more than 25 days after the effective date of such policy or endorsement), or when otherwise directed by the Company, exact, signed copies of all policies, endorsements or other appropriate evidences of insurance bound, issued, modified or canceled pursuant to this Agreement, including countersignature endorsements (except as otherwise specified herein relating to flat cancellations), together with the corresponding signed application. The Administrator may satisfy its obligation under this section by submitting policy data to the Company via electronic interface in a form acceptable to the Company. Notwithstanding the foregoing, the Administrator shall also provide copies of any and all policies, endorsements, or other evidences of insurance to the Company upon request; (N) that the Administrator shall provide, where permitted by law, written notice to the Company, of any proposed or completed sale, transfer, merger, consolidation or reorganization involving the Administrator, a controlling interest in the Administrator or any company that has a controlling interest in the Administrator, or involving a majority of its assets. However, in no event shall such notice be given later than the date of any public announcement of: (a) the proposed transaction or change, or (b) the execution of an agreement concerning the proposed transaction or change; (O) that the Administrator shall not take any actions to impede or interfere with the Company’s rights and ability to recover from third parties, whether any such right of recovery is based in tort or contract; (P) the Administrator shall perform all duties imposed upon it under any reinsurance agreement applicable to the business authorized herein, copies of which shall be provided to the Administrator, if applicable. Company agrees to advise the Administrator of any such duties prior to the effective date of any proposed reinsurance and the Administrator shall be entitled to additional reasonable compensation to be negotiated between the Parties, and approved in writing by the Company, if such duties impose material additional costs or duties upon the Administrator;
Execution Version 9 (Q) for as long as the Administrator has responsibilities and obligations hereunder, the Administrator shall provide the Company with audited financial statements. Such financial statements shall be prepared in accordance with Generally Accepted Accounting Principles and audited in accordance with Generally Accepted Auditing Standards. Such statements shall be provided to the Company within 180 days after the end of the applicable year or within 5 days of the availability of such statements whichever is earlier and shall be treated as Confidential Information (as hereinafter defined) by the Company; (R) the Administrator shall provide an organizational chart to the Company listing all subsidiaries, affiliates and the person or entity that ultimately controls the Administrator which shall be treated as Confidential Information by the Company. The Administrator shall keep the information in the organizational chart current by providing the Company with an updated organizational chart as the Administrator’s organization is amended; (S) to perform its duties hereunder in accordance with the: (i) the accounting and systems guidelines established by the Company and provided to the Administrator in writing from time to time (herein the “Accounting and Systems Guidelines” which are contained in Schedule E) and (ii) applicable laws and regulations; (T) the Administrator shall notify the Company of any new inter-company agreements, understandings, undertakings, guarantees of any kind affecting the Administrator Produced Policies or the Administrator Serviced Policies (each as defined in Schedule C), whether oral or written, where the Administrator is a party and any affiliate or controlling shareholder is a counter party. This information shall be treated as Confidential Information by the Company. The Company may add additional entities to this list at any time; (U) the Administrator shall maintain workers’ compensation and disability insurance for its employees in accordance with applicable laws and regulations; (V) that, to the extent the Administrator engages in any premium finance transactions, which require the prior written approval of the Company, the Administrator (i) shall do so in accordance with all applicable laws and regulations and (ii) does so solely on its own account and at its own risk. The Administrator shall be solely liable for any extensions of credit of earned premium or premium financing to policyholders or sub-producers and for the full amount of any premiums due to the Company on policies written under this Agreement regardless of whether the Administrator has collected the premium due from the policyholder or the sub-producer; (W) that for each year in which this Agreement remains in effect, the Administrator shall provide the Company with the following information within 15 business days after each of the following specified dates: (i) March 31, provide the March 31 inforce portfolio and the estimated May 31 and September 30 portfolios to support reinsurance purchasing; (ii) May 31, provide the actual May 31 inforce portfolio; and (iii) September 30, provide actual
Execution Version 10 September 30 inforce portfolio; (X) the Administrator, on behalf of the Company and as directed by the Company, shall file for approval with State Insurance Departments: all policy forms, rate schedules and associated rules and manuals as may be required by such regulatory authorities for the business subject to this Agreement. The Administrator shall provide the Company with a list of such approved documents and copies of such documents; (Y) the Administrator will follow appropriate Company underwriting guidelines, including: (i) the basis of the rates to be charged; (ii) applicable exclusions; and (iii) the maximum policy period; and (Z) Administrator shall assume oversight and responsibility for the Administrator Serviced Policies on the Company’s policy management system on the terms set forth herein; and (AA) Administrator, through its affiliate SSCH and for the benefit of Company, shall maintain Proprietary Platforms, as defined in and more particularly described in Schedule G. 5. Company Duties and Transition (A) Transition. a. As used in this Agreement: “Administrator Renewal Effective Date” means the date that is five (5) months following the Effective Date. “Effective Date” means May 9, 2024. “Legacy Policies” means all insurance policies issued by the Company through Company systems prior to the Effective Date. “Majesco Legacy Policies” means all insurance policies issued by the Company through Company systems prior to the Effective Date, and includes renewals of such policies only when such renewals are maintained on the Company’s systems. For the avoidance of doubt, Majesco Legacy Policies does not include Majesco Legacy Policies replaced by the New Insurance Product or renewed through the Administrator’s policy administration system. “New Business” means the New Insurance Product, and any other insurance policies issued by the Company to a new insured, on or after the Effective Date. “New Insurance Product” means insurance policies using the rates and forms developed by Administrator and as approved by the State of New York Department of Financial Services.
Execution Version 11 “SageSure Legacy Policies” refers to insurance policies issued by the Company through Company systems prior to the Effective Date, only after such policy has been renewed on the Administrator’s policy administration system. “Transaction” means the transaction whereby an affiliate of Administrator has agreed to acquire one hundred percent of the issued and outstanding shares of the Company. “Transition Employees” means all of the Company’s policy administration employees as of the Effective Date. b. New Business. a. With respect to all New Business, on and after the Effective Date: i. The Company shall appoint Administrator as the Company’s sole agent with the authority to place policies within the Territory. ii. The Company shall direct its agents to submit applications for New Business through Administrator. iii. All New Business opportunities received by the Company, and not through the Administrator, will be submitted to the Administrator for underwriting. c. Majesco Legacy Policies. a. With respect to Majesco Legacy Policies, on and after the Effective Date: i. Non-renewals, cancellations and endorsements shall be performed on the Company’s policy management system by the Company, until such Majesco Legacy Policy has been renewed on Administrator’s policy management system. b. With respect to Majesco Legacy Policies, on and after the Effective Date, and prior to the Administrator Renewal Effective Date: i. The Company’s agents will continue to process renewals, directly through the Company, for policies with a renewal date prior to the Administrator Renewal Effective Date. c. With respect to Majesco Legacy Policies with a policy renewal date on and after the Administrator Renewal Effective Date: i. The Company appoints Administrator as the Company’s sole agent with the authority within the Territory, on behalf of Company, to communicate with insureds and their agents and representatives. ii. Administrator may offer to renew, offer replacement policies (which may include the New Insurance Product), or issue cancellations (subject to the Underwriting Guidelines and applicable law), all on the Administrator’s policy management system. Any non-renewal accompanied by an offer for a replacement policy will also be performed by the Administrator on the Administrator’s policy management system.
Execution Version 12 iii. The Company shall notify its agents that the Administrator has been appointed as the program administrator, and that all such policies will be processed through the Administrator. iv. The Company shall maintain support for Majesco Legacy Policies on the Company’s systems (including Majesco software and data) at the Company’s expense until all active Legacy Policies are transitioned to the Administrator’s policy management system. d. Transition Employees. The Parties shall use commercially reasonable efforts to ensure that the Transition Employees become Administrator’s employees at a mutually agreeable time without interference to servicing of Legacy Policies. (B) Expenses. Except as expressly set forth elsewhere in this Agreement, during the Term, each Party shall be responsible for its own expenses including: (1) maintenance of its policy administration systems; and (2) wages and benefits owed to its employees. (C) Access to Data. Throughout the Term of this Agreement, the Company shall make available to Administrator all policy data from the Company’s systems (including Majesco) as is reasonably necessary for the prompt and efficient performance of by Administrator of its duties under this Agreement. (D) The Company shall pay all premium taxes, board fees and other taxes on premiums incident to policies written by the Administrator for business subject to this Agreement. (E) The Company shall notify the Administrator in a timely manner of any changes to its rates, rules and forms applicable to insurance subject to this Agreement. (F) The Company shall maintain at least an “A” rating by Demotech. (G) The Company shall perform all other duties and obligations of the Company required elsewhere in this Agreement. 6. Payment and Accounting Responsibilities (A) Premiums and all other funds collected by the Administrator will be held in a fiduciary capacity for Company until delivered to Company. All premiums, net of (i) Commission, (ii) policy fees and inspection fees, and (iii) setup fees and installment fees on payment plans, collected by Administrator with respect to the Policies, are the property of Company. The Company and Administrator shall agree to designate the bank account in such a manner as to clearly establish that Administrator is holding and acting as fiduciary for Company with respect to the funds in the account. The premiums received by Administrator shall be kept in a fiduciary bank account in a financial institution selected by Administrator (“Program Bank Account”) provided, however, that: (a) said institution must be a member of the Federal Reserve System; (b) Administrator’s fiduciary account therein must be insured by the Federal Deposit Insurance Corporation; and, (c) The Program Bank Account has online banking capacity sufficient to allow both Company and Administrator secured online access.
Execution Version 13 Administrator must segregate and shall not commingle premiums collected on behalf of Company with other fiduciary funds received by Administrator in the operation of its business. Except as expressly authorized by the Company, Administrator shall not have authority to draw on any other accounts of the Company. Company will have access during ordinary business hours to such books and records as they pertain to Company’s premiums. Company authorizes Administrator, to the extent permitted by applicable law, to charge set up fees and installment fees with respect to policies billed on an installment basis. (B) The Administrator shall prepare and submit to the Company within five (5) business days after the end of each month a bordereau report showing all premiums, policy fees, inspection fees, surcharges, amounts written, earned and collected; and details of all compensation due to Administrator. The Administrator shall also provide the Company with such other information that it may reasonably require to satisfy its own internal reporting requirements as outlined in Schedule F and any reporting requirements for the applicable reinsurer. The Company shall remit compensation due to the Administrator, if any, on not less than a monthly basis. (C) Administrator will establish lockbox capabilities to collect monies due on policies produced under this Agreement. Upon establishment of lockbox capabilities, Company will assist Administrator in directing all payments made for insurance produced under this Agreement to Administrator. (D) The Administrator shall only have the authority to prepare online transfers against the Program Bank Account, for the following purposes: a. payment of monies due insureds in connection with return premiums and endorsements relating to insurance produced under this Agreement; b. reimbursement of monies due to Administrator in connection with return premiums and endorsements relating to insurance produced under this Agreement that Administrator pays from the Administrator’s account; c. refund of monies received in the Program Bank Account for policies related to other insurance carriers or otherwise unrelated to Company; d. payments to the Company; e. payments of amounts due the Administrator; and f. payments to SSCH pursuant to Schedule G on behalf of the Company. Consistent with the Administrator’s reporting obligations under this Agreement, the Administrator shall furnish supporting documentation for all transfers from the Program Bank Account. (E) Each week, the Administrator will transfer funds in excess of an agreed-upon minimum balance in the Program Bank Account to the Company, less the Provisional Commission for amounts due the Administrator as set forth in Schedule C. The Administrator will transfer funds equal to the Provisional Commission to its designated bank account, concurrent with weekly transfers to the Company. By the 5th business day of each month, the Administrator
Execution Version 14 will submit an invoice to the Company for the prior month reflecting amounts due the Administrator, net of the Provisional Commission fund transfers. The Administrator shall be liable to the Company for any and all premiums due on insurance produced under this Agreement, including amounts that are still in transit to the Program Bank Account. The Administrator shall report monthly to the Company any earned premiums that were uncollectible from policyholders. The Administrator is responsible to pay the Company for any uncollected premiums greater than 90 days past due, except for uncollected premium caused by any action taken by Company or state regulatory authority preventing Administrator from collecting premium in the normal course of business. (F) The Administrator agrees to pay all costs and expenses of commercially reasonable collection efforts from insureds, including reasonable attorneys' fees, where premiums to be received by the Administrator pursuant to this Agreement are not paid in full by an insured. (G) Administrator will reimburse the Company for all billed out of pocket expenses incurred with respect to market conduct examinations or other regulatory reviews and audits which are related to the Administrators business activities. (H) Without limiting any other rights, the Company or the Administrator may have, should either Party default in the payment of amounts due, the Parties may offset any balances due between the Parties. (I) At such time that Legacy Policies and renewals of those policies are being administered by the Administrator, entries in the Parties’ respective accounting systems will be adjusted to reflect a transfer of any positive balances from Company’s system to the Administrator’s accounting systems, resulting in a $0 balance on the Company’s accounting system, and a corresponding transfer of funds by the Company to the Program Bank Account. By way of example only, if the Company is holding unearned premium that is required to be returned to an insured due to a cancellation, then such amount shall be transferred to the Administrator. 7. Administrator's Status The Administrator and the Company further agree that: (A) the Administrator is an independent contractor, not an employee of the Company, and has exclusive control over its time, the conduct of its operations and the selection of the companies with which it does business. Neither the term “Administrator” nor anything contained in this Agreement shall be construed as creating an employer/employee relationship between the Company and the Administrator, nor shall the Administrator be authorized to act on behalf of the Company except as expressly authorized in this Agreement. Neither Party to this Agreement shall employ an individual while such individual is employed with the other Party; (B) the Administrator shall be responsible for all expenses incurred in producing the business
Execution Version 15 authorized and in fulfilling its obligations under this Agreement unless the Company agrees otherwise in writing; and (C) notwithstanding any other provision of this Agreement, it is understood that the business and affairs of the Company shall be managed by its Board of Directors, and, to the extent delegated by such board, by its appropriately designated officers. The Board of Managers and officers of the Administrator shall not have any management prerogatives with respect to the business affairs and operations of the Company. 8. Confidentiality and Information Security (A) The Parties may provide confidential information to one another, which may include (but is not limited to) proprietary information, technical data, trade secrets, know-how related to research, product plans, inventions, developments, services, software, prices, costs, discounts, databases, future plans, business affairs, process information, methodologies, analysis, customer lists, product design, information, copyrights, and other confidential information (collectively, “Confidential Information”) that are valuable, special and unique assets of the party disclosing the Confidential Information (the “Disclosing Party”). Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the Party receiving the information (the “Receiving Party”); (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third-party without restriction on disclosure; (d) is independently developed by the Receiving Party without use of the Confidential Information; or (e) is disclosed by operation of law. (B) The Receiving Party will take commercially reasonable measures to protect the Confidential Information and treat it as strictly confidential. The Receiving Party agrees that it will not at any time or in any manner, either directly or indirectly, use any information for its own benefit, or divulge, disclose, or communicate in any manner any Confidential Information to any third party without the prior written consent of the Disclosing Party, unless required to do so by law or by a court or other forum of competent jurisdiction. In the event the Receiving Party is required by law to disclose any Confidential Information, the Receiving Party agrees to notify the Disclosing Party to the extent permitted by law prior to making any disclosure and to cooperate fully with the Disclosing Party in protecting such Confidential Information. (C) The Parties shall comply with the terms set forth in the Information Security Agreement attached hereto as Exhibit A. (D) The confidentiality and information security provisions of this Agreement shall remain in full force and effect after the termination of this Agreement. 9. Indemnification
Execution Version 16 (A) The Administrator and its successors and assigns agree to indemnify and hold the Company harmless against all liability including but not limited to damages, losses, fines, penalties (including, but not limited to, market conduct fines, penalties or assessments), and reasonable costs and expenses of whatsoever kind, including but not limited to fees and disbursements of counsel, which the Company is or may be held liable to pay arising out of: (i) the Administrator's failure to comply with the terms of this Agreement; and/or (ii) the willful or negligent acts or omissions of the Administrator, its employees and/or their agents or assigns; provided, such indemnification does not extend to acts or omissions by agents of the Administrator who were direct agents of the Company prior to the Effective Date. The Administrator shall also indemnify the Company against all such liability occasioned by the actions of any of the Authorized Representatives or any countersignature agents appointed at its behest or pursuant to its recommendation. The Company agrees that conditions precedent to such indemnification, are: (a) the Company’s prompt notification to the Administrator of any claim or suit against the Company regarding business written under this Agreement and/or any matters which appear reasonably likely to involve acts or omissions discussed in this sub-paragraph; (b) the Company’s cooperation with the Administrator in handling such claim or suit; and (c) the Company allowing and assisting the Administrator in making such investigations or defending such matters as the Administrator in its reasonable discretion deems prudent. (B) The Company agrees to indemnify and hold the Administrator harmless against all liability including but not limited to damages, losses, fines, penalties and reasonable costs and expenses of whatsoever kind, including but not limited to fees and disbursements of counsel, which the Administrator is or may be held liable to pay arising out of: (i) the willful or negligent acts or omissions of the Company; and/or (ii) any act or omission of the Administrator based solely or in substantial part upon procedures prescribed by the Company pursuant to this Agreement or upon direction or instruction by the Company during the period that this Agreement shall be in force and effect, including the period in which that Administrator may have any continuing obligations hereunder. The Administrator agrees that conditions precedent to such indemnification, are: (a) the Administrator’s prompt notification to the Company of any claim or suit against the Administrator regarding business written under this Agreement and/or any matters which appear reasonably likely to involve acts or omissions discussed in this sub-paragraph; (b) the Administrator’s cooperation with the Company in handling such claim or suit; and (c) the Administrator allowing and assisting the Company in making such investigations or defending such matters as the Company in its reasonable discretion deems prudent. 10. Commission The Administrator and the Company agree that: (A) the commission paid and policy fees remitted by the Company to the Administrator for
Execution Version 17 business produced by the Administrator under this Agreement shall be as set forth in Schedule C of this Agreement. For purposes of computing commissions, the rates set forth in Schedule C shall be applied to the relevant final gross written premium. For the purposes of this Agreement, the term “final gross written premium” shall mean the total written premium less return premium, exclusive of fees and surcharges, charged for each policy written hereunder; and (B) the compensation set forth in Schedule C and Schedule G shall be the sole remuneration paid to the Administrator and SSCH by the Company for services provided by the Administrator pursuant to this Agreement; and (C) if the Administrator has the authority to determine the amount of the interim profits by establishing loss reserves or controlling claim payments, or in any other manner, interim profits will be paid to the Administrator only as provided by this Agreement, but in no event until one year after they are earned for property insurance business; and on casualty business, interim profits will be paid only as provided by this Agreement, but in no event until five years after they are earned, and not until the profits have been verified pursuant to applicable state laws governing managing general agents. 11. Term, Termination and Suspension (A) The Administrator and the Company further agree that: 1) Unless terminated earlier, the initial term of this Agreement shall be two (2) years beginning on the Effective Date, and this Agreement will renew automatically for successive two-year terms (each such two-year period is referred to herein as a “Term”); 2) Notwithstanding anything in this Agreement to the contrary, this Agreement will automatically terminate in the event that the Company becomes a controlled insurer within the same holding company system as the Administrator for purposes of New York Insurance Law Section 1505. 3) this Agreement may be terminated: (i) immediately by mutual consent of the Parties to this Agreement at any time; or (ii) by any Party giving written notice to the other Parties, which notice must be received at least 90 days prior to the effective date of termination; or (iii) by the Company upon 30 days written notice to the Administrator in the event that any legislation or regulation adversely affects the ability of the Company and the Administrator (as may reasonably be determined by the Company in its sole discretion) to carry out the purposes of this Agreement or (iv) as otherwise required by law or regulation; 4) notwithstanding sub-paragraphs (A) and (B) above, this Agreement shall terminate immediately if: (i) there has been an event of fraud, abandonment or gross and willful misconduct under this Agreement on the part of the Administrator, or the Company, materially affecting the interests of the other; (ii) the Administrator has undergone an assignment for the benefit of creditors, has had a receiver appointed or has had a petition in bankruptcy filed by or against it; (iii) the representations, warranties and covenants contained in this Agreement shall prove false or
Execution Version 18 misleading in any material way; or (iv) for any other cause as provided for in this Agreement; 5) notwithstanding sub-paragraphs (A) and (B) above, if the Administrator shall commit any material breach of this Agreement or fail to comply with any reasonable instructions or directions from the Company, the Company may, in its sole discretion, suspend the authority of the Administrator under this Agreement, and the Company will be entitled to all legal rights of recovery from the Administrator. The Company shall notify the Administrator in writing of any suspension effected pursuant to this sub-paragraph. Such suspension shall be effective on the 10th business day following receipt of the written notice unless before such effective date the Administrator demonstrates to the Company’s satisfaction that the Administrator has cured the breach or failure, or the Company and Administrator agree otherwise in writing; 6) notwithstanding the foregoing, if there is a dispute between the Company and the Administrator concerning any violation or alleged violation of this Agreement or the Administrator's failure or alleged failure to comply with any reasonable instructions or directions from the Company, then the Company may, in its sole discretion, immediately suspend or modify the authority of the Administrator under this Agreement during the pendency of such dispute. Written notice shall be provided by the Company to the Administrator, as applicable, of any suspension affected pursuant to this sub-paragraph, which suspension shall be effective upon receipt of such notice unless otherwise specified by the Company in writing to the Administrator. Such a suspension shall not affect, negate or in any way diminish the Company’s rights under this Agreement; 7) should the Administrator fail to comply with any suspension notice, the Administrator agrees to indemnify and reimburse the Company for any loss or expense or for any damages caused to the Company as a consequence thereof, including, but not limited to, loss or expenses incurred under policies issued or renewed in violation of the suspension notice; and 8) in the event the Administrator's authority under this Agreement is suspended, the Company, in its sole discretion, may elect to remove or disable the software system or data files (and related computer hardware) that the Company has provided to the Administrator, if any. In such an event, the Administrator agrees that the Company’s representative(s) are permitted (without the need to obtain a court order) to access the Administrator’s office(s) during normal business hours and upon five (5) days’ notice to remove or disable such software system and related computer hardware. However, Company’s representatives may not interfere with the Administrator’s conduct of its business that is unrelated to this Agreement. If the Company makes an election to remove or disable such software system and related computer hardware and in the event the Administrator has any continuing servicing rights or obligations with regard to the policies issued by it under the authority granted in this Agreement which are frustrated by the Company’s actions, then the Administrator agrees to timely request that the Company provide it with any necessary policy documentation to enable the Administrator to fulfill such servicing rights or obligations. The Company agrees to cooperate with the Administrator in this regard and will forward all appropriate policy documentation to the Administrator for further
Execution Version 19 forwarding to the policyholder(s) to enable the Administrator to fulfill their servicing rights or obligations. 12. Continuing Obligations During Suspension and After Termination Upon termination of this Agreement or suspension of the Administrator's authority under this Agreement, the Administrator shall, as applicable: (A) continue to pay the Company all sums due the Company in the manner described in paragraph 6 above; (B) continue to perform all customary and necessary services regarding all policies issued by the Administrator on behalf of the Company until all such policies have been completely canceled, non-renewed or otherwise terminated. However, if an endorsement request would result in a charge of premium under the Underwriting Guidelines, the Administrator shall forward the request to the Company for review and prior approval; (C) continue to perform all services and pay all expenses incurred in fulfillment of its obligation to collect premiums; (D) issue all applicable cancellation and/or non-renewal notices in full and complete compliance with this Agreement and applicable laws and regulations. Except as may otherwise be required by law or regulation or as may otherwise be authorized in writing by the Company, any such cancellation and/or non-renewal notices shall be issued timely to ensure that the Company is not obligated to renew or extend any policy that has an expiration date after the date such termination or suspension is effective, or, if the termination or suspension notice given to the Administrator is less than 120 days’ notice, 75 days after notice of termination or suspension is received by the Administrator; (E) immediately stop binding coverage and issuing insurance and stop submitting or renewing business on behalf of the Company or extending the term of any existing business, except as may otherwise be required by law or regulation or as may otherwise be authorized in writing by the Company; (F) continue to fulfill all other obligations to the extent that such obligations are not inconsistent with (A) through (E) above and the contents of the termination or suspension notice; and (G) maintain records consistent with sub-paragraphs 4(I), 4(J) and 4(K) above. If the Administrator fails in any respect to fulfill these continuing obligations, in addition to any other rights and remedies that the Company may have herein or under applicable law, then any reasonable expense incurred by the Company (i) for the servicing of policies issued by the Administrator; (ii) to fulfill the Administrator’s unfulfilled obligations; or (iii) to enforce its rights under this Agreement, will be fully reimbursed to the Company by the Administrator and/or may be offset against any funds owed the
Execution Version 20 Administrator by the Company under this Agreement. Following the termination of this Agreement, the Company shall continue to pay the Administrator any commissions, policy fees, and other applicable compensation due to be paid as set forth in Schedule C, until the expiration of the last Company policy. 13. Ownership of Supplies Any unused policies, certifications, forms, applications or other unused Company supplies furnished by the Company to the Administrator, including, but not limited to, system software and related equipment supplied by the Company and any copies thereof, are the property of the Company and shall be accounted for and returned by the Administrator to the Company immediately upon demand. 14. Cancellation of Insurance (A) Nothing in this Agreement shall be construed as limiting or restricting the right of the Company to cancel any binder, policy, contract or other evidence of insurance issued under this Agreement in accordance with the cancellation provisions of such binder, policy, contract, other evidence of insurance and applicable law. (B) Return premiums for cancellations as a result of payment default under any premium finance plan shall be calculated in accordance with the terms of the applicable premium finance agreement except in those jurisdictions where such action is contrary to or otherwise provided for by law. 15. Ownership of Expirations The Company and the Administrator agree that: (A) With respect to Administrator Produced Policies (as defined in Schedule C), the Company will not make a claim to any expirations, as all such expirations are the property of the Administrator. (B) With respect to Company’s policies other than those described in Section 15(A) above (i.e., the Administrator Serviced Policies, as defined in Schedule C, and any other policies that the Administrator is not servicing): a. If the Transaction has not closed, then at the time of termination of this Agreement, the Administrator will not make claim to expirations for such policies, as all such expirations are the property of the Company. b. If the Transaction has closed, then at the time of termination of this Agreement, the Company will not make a claim to expirations, as all such expirations become the
Execution Version 22 electronic mail will be effective upon the date sent, if sent on a business day before 12:01 p.m., Eastern Time. If sent after 12:01 p.m. Eastern Time or on a day other than a business day, notice will be effective on the next business day. Written notice provided via first class registered mail shall be deemed received three days after the date it was sent, prepaid overnight mail shall be deemed received the day after it was sent, overnight courier and certified mail and hand-delivered notice shall be deemed received the date it was delivered. In the event the date of deemed receipt falls on a Saturday, Sunday or a United States national holiday, the date of receipt shall be deemed to be the next business day. The date of receipt or deemed receipt, regardless of the time of actual receipt, if received during the 9:00 am to 5:00 pm period at the recipient’s location, shall be the first day of any period of time provided for in any notice given under this Agreement. 18. Modification and Enforcement of this Agreement (A) Except as expressly noted herein, this Agreement and the Schedules hereto may not be changed or amended unless in writing signed by the Parties hereto; (B) In the event a Court of competent jurisdiction modifies or invalidates any provision of this Agreement, all other provisions of this Agreement shall remain in full force and effect. 19. Applicable Law This Agreement will be construed and enforced in accordance with and governed by the laws of the State of New York. 20. Headings The Paragraph headings are for reference only and will not limit or otherwise affect the meaning thereof. 21. Waiver A waiver by a Party of any breach or default by the other Party under this Agreement shall not constitute a continuing waiver or a waiver of any subsequent act in breach or in default hereunder. 22. Comprehension and Non-Reliance This Agreement is the product of arm’s length negotiations and the terms of this Agreement have been completely read, fully understood and voluntarily accepted by the Administrator and the Company. The Parties represent that each has had full opportunity to consult its own attorney in connection with the preparation and review of this Agreement, that each understands the meaning and effect of this Agreement, that each has carefully read and understands the scope and effect of each provision contained in this Agreement, and that each is not relying upon any representations made by any other party, its attorneys or other representatives.
Execution Version 23 Further, all Parties agree that, for purposes of interpretation, this Agreement shall not be deemed to have been drafted by one Party or the other. 23. Non-Assignability Except as required by law, neither Party may assign the rights and obligations set forth in this Agreement, in whole or in part, directly or indirectly, without prior written approval by the other Party. 24. Privacy The Company and the Administrator acknowledge that insurance is a highly regulated industry and that Administrator’s performance of its obligations under this Agreement may give rise to certain duties imposed under laws, rules and regulations that govern insurance companies, agents and suppliers of insurance services and functions. The Company and the Administrator further acknowledge that nonpublic personally identifiable personal, financial and medical information about the Company’s customers, former customers, applicants and claimants may be disclosed to the Administrator during the course of, and as necessary for, the performance of this Agreement. The Administrator agrees that it will maintain the confidentiality and privacy of such information and comply with all applicable laws, rules and regulations concerning the maintenance of the privacy of such information. The Administrator will limit access to such information to only those individuals that require access to such information for performance of this Agreement, and will not disclose such information to a third party unless otherwise permitted by law and only after requiring the third party to execute a similar confidentiality and privacy clause and with prior written consent of the Company. The Administrator shall take commercially reasonable precautions to safeguard its computer systems and offices in order to comply with the provisions of this paragraph and to prevent unauthorized access to nonpublic personally identifiable personal, financial and medical information whether in physical, electronic or other medium. 25. Required Contract Provisions If any statute, regulation or other law governing the business of the Administrator and its affiliates (if any) and the Company requires certain contract provisions to be included in this Agreement, those required contract provisions are deemed to be included in this Agreement. Remainder of Page Intentionally Blank
22 LIST OF SCHEDULES Schedule A – Authorized Coverages Schedule B – List of Authorized Representatives Schedule C – Administrator Compensation Schedule D – Jurisdictions in Which Authorized to Represent Company Schedule E – Accounting and Systems Guidelines Schedule F – Reporting Schedule G – SSCH Services and Compensation
23 SCHEDULE A AUTHORIZED COVERAGES FOR CLASSES OF BUSINESS OUTLINED IN THE UNDERWRITING GUIDELINES Company hereby grants to the Administrator the authority to act as agent for Company to the extent herein defined. 1. Maximum Annual Direct Written Premium Volume. The Administrator’s written capacity authority on business it produces shall be limited to the following (measured in gross written premiums in a calendar year): $20 million The Parties acknowledge that year-over-year growth in written premium will need to be managed in such a way as to avoid putting strain on the Company’s surplus, which could result in downward pressure on its Demotech rating and/or outlook. As such, it is in the best interests of both Parties to effectively manage the Company’s premium growth. The Company and Administrator will communicate regularly about the level of premium growth throughout each year and will cooperate to ensure that the objectives outlined in this paragraph are being adequately monitored and addressed. Notwithstanding the premium volumes defined above, the Administrator may request the Company to increase its written premium volume authority if the Company has sufficient surplus, as determined in the Company’s sole discretion. In addition, the Company, upon written notice to the Administrator, may reduce the Administrator’s written capacity authority if it is deemed necessary, in the Company’s sole reasonable discretion, in order to maintain an adequate Authorized Control Level Risk-Based Capital Ratio (“ACL RBC Ratio”), which, for the purpose of this Agreement, is defined as an ACL RBC Ratio of at least 400%. 2. Authorized Classes of Insurance Business and Types of Risks. Subject to any additional authorization issued by the Company, the Administrator is authorized by the Company to underwrite on its behalf Policies containing the following lines of business: Homeowners Dwelling Fire
24 SCHEDULE B LIST OF AUTHORIZED REPRESENTATIVES Schedule to be maintained on file with the Administrator and the Company.
25 SCHEDULE C ADMINISTRATOR COMPENSATION Administrator compensation will consist of the following: A. Commission B. Program Fees C. True-Up Calculations D. Profit Sharing All Administrator compensation, other than True-Up Calculations, will be reported to Company by the Administrator by the 10th of each month end and paid to the Administrator’s designated bank account. A. Commission Administrator Produced Policies On new policies produced by Administrator, including Legacy Policies renewed onto the New Insurance Product (“Administrator Produced Policies”), the Administrator will earn provisional commission described in the chart below based on gross written premiums per policy (“Provisional Commission”). Commissionable premiums are exclusive of surcharges and policy fees. Such Provisional Commission shall include all compensation for producer commissions and all other expenses which are the responsibility of the Administrator. The Provisional Commission is subject to an annual adjustment in accordance with the Commission True-up section of this Schedule C. The Provisional Commission allowable under this Agreement for Administrator Produced Policies is set forth below: State Provisional Commission % of Gross Written Commissionable Premiums NY Administrator Serviced Policies Majesco Legacy Policies and SageSure Legacy Policies renewed by Administrator onto the Company’s products other than the New Insurance Product are referred to herein as “Administrator Serviced Policies”. For Administrator Serviced Policies, on and after the Administrator Renewal Effective Date, the Administrator will earn Provisional Commission described in the chart below. Commissionable premiums are exclusive of surcharges and policy fees. Such Provisional Commission shall include all compensation for producer commissions and all other
26 expenses which are the responsibility of the Administrator. The Provisional Commission is subject to an annual adjustment in accordance with the Commission True-Up section of this Schedule C. (A) Administrator Service Fee (B) Agent Commission = (A) + (B) Provisional Commission % of Gross Written Commissionable Premiums B. Program Fees Policy and Inspection Fees Only as allowed by applicable state law, and subject to filing and regulatory approval as part of any admitted product, may the Company charge, and Administrator collect, policy fees and inspection fees in connection with the business written pursuant to this Agreement. These fees are intended to cover Administrator Program Vendor Expenses, which are vendor expenses incurred by the Administrator for the purpose of acquiring, qualifying, underwriting, inspecting, modeling, servicing, issuing, and administering payments to Company business. Not included in these Policy and Inspection Fees are statutory “pass through” fees (including but not limited to Fair Plan Emergency, New York Fire, Guaranty Fund surcharges) which will be fully retained by Company for remittance to related organizations. Setup Fees and Installment Fees on Payment Plans The Administrator will collect setup fees and installment fees from insureds to the extent allowable under applicable state law on payment plans in exchange for coverage costs of bank accounts, credit card fees, ACH fees and lockbox fees associated with this Agreement. These costs are inclusive of Administrator Program Vendor Expenses. C. True-Up Calculations Commission True-Up Once annually, the Administrator will calculate the average paid commission rate paid to Administrator’s distribution sources. Average Commission Rate to Distributors = (Commission Paid to Distributors / Collected Commissionable Premiums) + (Channels-Specific Retail Contingents Paid / Gross Written Commissionable Premiums) Provisional Commission Rate = Provisional Commission Amounts Paid / Gross Written Commissionable Premiums
28 make the True-up Payment on or about October 1st of each year. “ITD” means Inception-to-Date. For the purposes of all calculations in this Schedule C, Inception-to- Date refers to summations for all define measures for the period starting with the issuance of the first policy issued pursuant to this agreement (“Program Inception”) through the June 30 of the relevant measurement period. D. Profit Sharing The intent of the profit sharing arrangement is to establish a sharing of the inception to date profits (“ITD Profits”) generated under this Agreement on Administrator Produced Policies. The Parties agree that if the profit margin on Administrator Produced Policies (defined based on ITD Profits divided by ITD Gross Earned Premium) is greater than then the Administrator is entitled to of the profit margin in excess of . If the profit margin is less than , there is no profit sharing. Profit Sharing Calculations The following describes in terms of mathematical expressions the approach to the Profit Sharing computation over the life of this Agreement. Profit sharing payments shall be based on the calculations set forth below. “ITD” means Inception-to-Date. For the purposes of all calculations in this Schedule C, Inception-to- Date refers to summations for all define measures for the period starting with the issuance of the first policy issued pursuant to this agreement (“Program Inception”) through the June 30 of the relevant measurement period. For example, for the period ending June 30, 2024, ITD Gross Earned Premium (or ITD GEP(t)) is the total Gross Earned Premium for the period from the Program Inception through June 30, 2024. For period ending June 30, 2025, ITD GEP(t) would reflect the period from the Program Inception through June 30, 2025 and ITD GEP(t-1) would reflect the period from Program Inception through June 30, 2024. The first measurement period will be the Stub Period from the Program Inception through June 30, 2024. The measurement period will be July 1 through June 30 each following year. ITD GEP = ITD Gross Earned Premiums ITD Margin = ITD Profit / ITD GEP If ITD Margin >= THEN ITD Profit Sharing = [(ITD Margin – ) * ] * ITD GEP
29 ELSE ITD Profit Sharing = 0 Profit Sharing Earned(t) = ITD Profit Sharing(t) – ITD Profit Sharing (t-1) If Profit Sharing Earned(t) > 0 then Company will pay 100% within 15 days of the receipt of final calculations from Administrator. If Profit Sharing Earned(t) < 0 then Administrator will owe such amounts to the Company (a “Giveback”). The Company shall deduct 1/36 of the Giveback from each of the next 36 monthly Provisional Commission amounts owed to the Administrator, starting with the month of September. Notwithstanding the foregoing, the Giveback, if any, for each month shall not exceed of current month’s Gross Written Premiums, and any excess shall be rolled forward to the next calendar month and paid in accordance with the foregoing formula. If a Profit Sharing Payment is due to the Administrator in a subsequent year in which Giveback amounts are still due, then (i) if the Profit Sharing Payment exceeds the outstanding Giveback, the Profit Sharing Payment shall be reduced by the amount of outstanding Giveback and any remaining Profit Sharing Payment amounts shall be paid to the Administrator, or (ii) if the outstanding Giveback exceeds the Profit Sharing Payment Amount, the Giveback shall be reduced by the Profit Sharing Payment and any remaining Giveback shall continue to be paid in accordance with the formula above. For sake of clarity, Givebacks will be treated as negative Profit Sharing Payments for prior periods in the calculation of Profit Sharing Payments above. General Definitions ITD Profit (before profit sharing payments) = ITD Gross Earned Premiums (excluding surcharges, assessments, and other regulatory charges) Less ITD a) Actual Catastrophe Excess-of-Loss Reinsurance Costs b) Actual Other Reinsurance Costs c) Actual Gross Losses and ALAE Incurred d) Actual ULAE e) IBNR Charge f) Provisional Commission g) Actual Premium Taxes Incurred (admitted business only) h) Boards & Bureaus Plus ITD i) True-Up Payment j) Reinsurance Recoveries from Catastrophe Excess-of-Loss Reinsurance in (a) k) Reinsurance Recoveries from Other Reinsurance in (b)
30 a) Actual costs incurred for the Treaty Year in the purchase of an appropriate amount of Catastrophe Excess-of-Loss Reinsurance coverage (i.e., up to the greater of 1) what is required by Demotech to maintain an A rating and 2) what is required by Texas regulators to operate in the state). Company will make these Actual costs available to the Administrator. b) Actual costs incurred for the Treaty Year in the purchase of other reinsurance including Per Risk XOL Treaty, Facultative, ID Theft and any other Reinsurance. Company will make these Actual costs available to the Administrator. c) Treaty Year Incurred Losses and ALAE (including the benefit of salvage & subrogation). d) Actual ULAE. Company will make these Actual costs available to the Administrator for inclusion. e) IBNR Factors of 14%, 3% and 1% applied to (c) for Treaty Year 1, 2, and 3, assessed at 12, 24, and 36 months, respectively, where Treaty Year 1 is the most recent year (the latest year in the calculation). The Treaty Year measurement period will be for losses occurring between July 1 through June 30 for each year. f) The sum of Provisional Commission Rate times Commissionable Earned Premiums for each policy. g) The sum of Actual Rate of premium taxes for admitted business times Commissionable Earned Premiums for each state. The Actual Rate of Premium Taxes is the actual Premium Taxes paid divided by the Gross Written Commissionable Premium (excluding all fees) for each state. h) Actual Boards & Bureaus expense in connection with Administrator Business incurred by the company plus all costs of Market Conduct examinations. Company will make these Actual costs available to the Administrator for inclusion. i) True-Up Payments as defined in Section C of this Schedule C. j) Reinsurance recoveries from reinsurance described in (a). k) Reinsurance recoveries from reinsurance described in (b). Note that all amounts in the calculation of ITD Profit and Margin are ITD calculations. All premium calculations exclude policy fees, inspection fees, surcharges, and other regulatory charges that are added onto the policy charges after the calculation of premium.
31 SCHEDULE D JURISDICTIONS IN WHICH AUTHORIZED TO REPRESENT COMPANY All jurisdictions in which the Company holds a license or certificate of authority to issue insurance policies
32 SCHEDULE E ACCOUNTING AND SYSTEMS GUIDELINES a. System Availability – Mission Critical Systems, the websites that support rate, quote, policy issuance, billing and underwriting will be available 99% of the time as measured over a calendar month and during the times deemed as business hours (Monday to Friday 8:00 AM Eastern until 9:00 PM Eastern), not including holidays. b. Phone Service – Phone systems will be available 24 X 7 X 365 except during downtime required for maintenance support. The phones will be manned on Monday to Friday from 8:00 AM Eastern until 9:00 PM Eastern. Recorded call prompts will provide emergency contact and claims notice references as specified by Company. Company will contact Administrator in the event of unscheduled office closures that may require alternate claims call handling. c. Interface of Policy Information – Administrator will provide secure direct access to database repository of information that enables Company to populate Company systems with policy information according to Company specifications. d. Disaster Recovery / Business Continuity – Provide for the backup, storage and retrieval of all policy data, reference files, data, programs and “Objects”, that would be required to restore systems to operational status following an outage. For extended outages of more than 3 days, have infrastructure and processes in place to make Mission Critical Systems available to customers within 3 business days and all services available within five business days. e. Confidentiality of Data – Maintain the information regarding Company, its policyholders and business practices with the same care as they would maintain their own data. This data will not be used for any other purposes than those contemplated in this Agreement. Information will not be shared with any third parties unless agreed to in advance by Company. f. Lockbox / Cash Processing – 95% of cash will be processed on the same day it is received and 100% will be processed within 2 business days. g. Print (Operational Reports) – All operational reports required by Company to operate / manage this program from the Carrier and Claims Handling perspective should be electronically delivered to Company not later than 8:00 AM the business day following processing by the Administrator’s system. h. Print (Policy forms, Bills, Certificates) – The output generated for all processing completed by 5:00 PM Eastern time should be printed for delivery to the insured, producers and interested parties within the same business day.
33 SCHEDULE F REPORTING All Administrator compensation will be reported to Company by the 5th business day of each month and any unsettled amounts paid from Program Bank Account to Administrator’s designated bank account. Administrator shall keep detailed accounting of the Company’s policy activities on all premiums, taxes, and any other funds due to the Company on all policies written under this Agreement. Administrator shall maintain complete and accurate accounting records in accordance with usual and customary accounting practices and/or as may be requested by the Company. On a monthly basis within 5 business days after the end of the month, Administrator will provide a detailed and itemized statement of account of all premiums written, premiums earned, premiums collected, policy fees written, policy fees collected, inspection fees written, inspection fees collected, and taxes or regulatory surcharges. Upon execution of this Agreement, Administrator will work to implement a mutually agreed reporting process and format. Administrator shall provide information necessary for Company to report financial and statistical data, either on a summary or policy level, in a mutually agreed format. Administrator shall ensure that financial and statistical information provided to the Company is accurately coded, input, and balanced based on the mutually agreed format. Administrator will provide claim related reporting and analytics support as set forth below or otherwise reasonably requested by Company: a. Administrator shall maintain all data required for the Company to prepare its Statutory Annual Statement and any other report required by the National Association of Insurance Commissioners (“NAIC”) or other regulatory authority. Administrator shall also maintain all statistical data required by the Insurance Services Office (“ISO”) or similar statistical reporting agencies. Administrator and the Company shall mutually agree upon the data that must be maintained by Administrator under this Paragraph upon execution of this Agreement, and update as mutually agreed upon. b. Administrator shall provide a detailed monthly claims extract report to Company within fifteen (15) days after the last day of each calendar month. 1. Contents. The report must contain the following information, by state and Annual Statement line of business: claim numbers, dates of loss, policy numbers, effective dates of policies, paid losses, paid loss adjustment expenses, outstanding losses, outstanding loss adjustment expenses, net salvage and subrogation recoveries, and recovery expenses. The report must also contain paid losses, legal expenses, and salvage and subrogation recoveries from inception to date.
34 2. Format and Data. Administrator and the Company shall mutually agree upon the form and data field content of the loss run report prior upon execution of this Agreement.
35 SCHEDULE G SSCH SERVICES AND COMPENSATION SageSure Capital Compensation As consideration for the SageSure Capital Services described below, the Company directs the Administrator to pay SageSure Capital Holdings, Inc. (“SSCH”) of Gross Written Commissionable Premium from the Administrator’s Provisional Commission described in Schedule C of this Agreement (“SageSure Capital Compensation”). The Parties may mutually agree to change the amount of the SageSure Capital Compensation at any time during the Term of this Agreement. The compensation to SSCH is not an incremental expense to the Company, but rather is paid from the Administrator’s Provisional Commission, effectively reducing the commission retained by the Administrator. SageSure Capital Services SSCH shall provide certain technology services to the Company through the Administrator (the “SageSure Capital Services”) with respect to all policies under the Agreement: 1. The creation, delivery, security, and maintenance of proprietary custom platforms for a producer management system with quoting technology, a policy administration system, a policyholder portal, and a data repository accessible through applications (collectively “Proprietary Platforms”). 2. The management, delivery, security, and maintenance of vended platforms and applications, creation of proprietary technology and maintenance of integrations between the vended platforms and Proprietary Platforms, and management of software and application implementation related to the vended platforms and Proprietary Platforms.
36 Exhibit A Information Security Agreement Attached.
Information Security Agreement 1) Definitions. Capitalized terms used herein shall have the meanings set forth in this Section 1. “Agreement” means the agreement to which this Information Security Agreement is attached. “Authorized Employees” means employees of each Party who have a need to know or otherwise access Personal Information to enable the Parties to perform their obligations under the Agreement. “Authorized Persons” means (i) Authorized Employees; and (ii) each Party’s contractors, agents, or third parties, who have a need to know or otherwise access Personal Information to enable the Parties to perform their obligations under the Agreement, and who are bound in writing by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of this Information Security Agreement. “Highly Sensitive Personal Information” means an (i) individual's government-issued identification number (including Social Security number, driver's license number, or state-issued identification number); (ii) financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to an individual's financial account; (iii) biometric, genetic, health, medical, or medical insurance data; (iv) geolocation data; or (v) information regarding their racial or ethnic origin, religious beliefs, sex life or sexual orientation, union membership, or citizenship or immigration status. “Party” refers to each party (collectively, the “Parties”) to the Agreement. “Personal Information” means information provided to a Party (the “Receiving Party”) by or at the direction of the other Party (the “Disclosing Party”), information which is created or obtained by a Party (the “Receiving Party”) on behalf of the other Party (the “Disclosing Party”), or information to which access was provided to a Party (the “Receiving Party”) by or at the direction of the other Party (the “Disclosing Party”), in the course of the Parties’ performance under the Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to identify or authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, medical, or medical insurance data, answers to security questions, an individual's internet activity or similar interaction history, inferences drawn from other personal information to create consumer profiles, geolocation data, an individual's commercial, employment, or education history, and other personal characteristics and identifiers), in case of both subclauses (i) and (ii), including, without limitation, all Highly Sensitive Personal Information. A Party’s business contact information is not by itself deemed to be Personal Information. “Security Breach” means (i) any act or omission that compromises either the security, confidentiality, availability, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place by a Party (or any Authorized Persons) that relate to the protection of the security, confidentiality, availability, or integrity of Personal Information, or (ii) receipt of a complaint in relation to a Party’s privacy and data security practices
(or any Authorized Persons) or a breach or alleged breach of this Information Security Agreement relating to such privacy and data security practices. Without limiting the foregoing, a compromise shall include any unauthorized access to or disclosure or acquisition of Personal Information. 2) Standard of Care. a) The Parties acknowledge and agree that, in the course of performance of the Agreement, the Parties may create, receive, or have access to Personal Information. Each Party shall comply with the terms and conditions set forth in this Information Security Agreement in its creation, collection, receipt, transmission, storage, disposal, use, and disclosure of such Personal Information and be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession by all Authorized Persons. Each Party shall be responsible for, and remain liable to, the other Party for the actions and omissions of its Authorized Persons that are not Authorized Employees concerning the treatment of Personal Information as if they were the Party’s own actions and omissions. Each Party’s Personal Information is deemed to be Confidential Information of that Party and is not Confidential Information of the other Party. In the event of a conflict or inconsistency between this Section 2, on one hand, and the Agreement or this Information Security Agreement, on the other hand, the terms and conditions set forth in this Section 2 shall govern and control. b) In recognition of the foregoing, each Receiving Party agrees and covenants that it shall: i) keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure; ii) not create, collect, receive, access, or use Personal Information in violation of law; iii) use and disclose Personal Information solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to the terms and conditions of this Information Security Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for the Receiving Party’s own purposes or for the benefit of anyone other than the Disclosing Party, in each case, without the Disclosing Party’s prior written consent; and iv) not, directly or indirectly, disclose Personal Information to any person other than its Authorized Persons, including any subcontractors, agents, its own service providers or auditors (each, an “Unauthorized Third Party”), without the Disclosing Party’s prior written consent, unless and to the extent required by Government Authorities or as otherwise, to the extent expressly required, by applicable law, in which case, the Receiving Party shall (A) notify the Disclosing Party before such disclosure or as soon thereafter as reasonably possible; (B) be responsible for and remain liable to the Disclosing Party for the actions and omissions of such Unauthorized Third Party concerning the treatment of such Personal Information as if they were the Receiving Party’s own actions and omissions; and (C) require the Unauthorized Third Party that has access to Personal Information to execute a written agreement agreeing to comply with the terms and conditions of this Information Security Agreement relating to the treatment of Personal Information.
3) Information Security. a) Each Party represents and warrants that its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives. b) Each Party shall implement and maintain a written information security program including appropriate policies, procedures, and risk assessments that are reviewed at least annually. c) Without limiting either Party’s obligations under Section 3(a), each Party shall implement administrative, physical, and technical safeguards to protect Personal Information from unauthorized access, acquisition, or disclosure, destruction, alteration, accidental loss, misuse, or damage that are no less rigorous than accepted industry practices, and shall ensure that all such safeguards, including the manner in which Personal Information is created, collected, accessed, received, used, stored, processed, disposed of, and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Information Security Agreement. If, in the course of performance under the Agreement, either Party has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information, such Party shall at all times remain in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at such Party’s sole cost and expense. d) At a minimum, each Party’s safeguards for the protection of Personal Information shall include: (i) limiting access of Personal Information to Authorized Persons; (ii) securing business facilities, data centers, paper files, servers, backup systems, and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (iii) implementing network, application, database, and platform security; (iv) securing information transmission, storage, and disposal; (v) implementing authentication and access controls within media, applications, operating systems, and equipment, including the use of multifactor authentication for access to any Personal Information; (vi) encrypting Personal Information stored on any [mobile] media; (vii) encrypting Personal Information when transmitted; (viii) strictly segregating Personal Information from information of the other Party or any third-party so that Personal Information is not commingled with any other types of information; (ix) conducting risk assessments, penetration testing, and vulnerability scans and promptly implementing, at the Party’s sole cost and expense, a corrective action plan to correct any issues that are reported as a result of the testing; (x) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable law; and (xi) providing appropriate privacy and information security training to the Party’s employees. e) During the term of each Authorized Employee's employment by a Party, the Party shall at all times cause such Authorized Employees to abide strictly by the Party’s obligations under this Information Security Agreement and its standard policies and procedures, a copy of which have
been provided to the other Party upon request. Each Party further agrees that it shall maintain a disciplinary process to address any unauthorized access, use, or disclosure of Personal Information by any of its officers, partners, principals, employees, agents, or contractors. 4) Security Breach Procedures. a) Each Party shall: i) provide the other Party with the name and contact information for one or more of the Party’s employees/security operations or other service desk who/which shall serve as the other Party’s primary security contact and shall be available to assist the other Party twenty- four (24) hours per day, seven (7) days per week as a contact in resolving obligations associated with a Security Breach; ii) notify the other Party of a Security Breach as soon as practicable, but no later than twenty- four (24) hours after the Party becomes aware of it; and iii) notify the other Party of any Security Breaches by emailing the other Party at an address provided by the other Party, with a copy by email to the Party’s primary business contact within the other Party. b) Immediately following notification of a Security Breach, the Parties shall coordinate with each other to investigate the Security Breach. The Parties agree to fully cooperate with each other in the handling of the matter, including, without limitation: (i) assisting with any investigation; (ii) providing physical access to the facilities and operations affected; (iii) facilitating interviews with employees and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law, regulation, industry standards, or as otherwise reasonably required by the other Party. c) The Party responsible for the Security Breach shall (i) at its own expense use best efforts to immediately contain and remedy any Security Breach and prevent any further Security Breach, including, but not limited to taking any and all action necessary to comply with applicable privacy rights, laws, regulations, and standards, and (ii) reimburse the other Party for all actual reasonable costs incurred by the other Party in responding to, and mitigating damages caused by, any Security Breach, including all costs of notice and/or remediation pursuant to Section 4(d). d) Each Party agrees that it shall not inform any third party of a Security Breach without first obtaining the other Party’s prior written consent, other than to inform a complainant that the matter has been forwarded to the Party’s legal counsel. Further, the Receiving Party agrees that the Disclosing Party shall have the sole right to determine: (i) whether notice of the Security Breach is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others as required by law or regulation, or otherwise in Disclosing Party’s discretion; and (ii) the contents of such notice, whether any type of remediation may be offered to affected persons, and the nature and extent of any such remediation. e) The Parties agree to maintain and preserve all documents, records, and other data related to any Security Breach for the longest of the following (the “Applicable Retention Period”): (i) five (5) years; (ii) any applicable retention period required by the Agreement or any other contract
between the Parties; or (iii) the length of time required by applicable law or regulation. Prior to destruction or disposal of such documents, records or other data, each Party shall provide no less than 90 days prior written notice to the other Party specifying in reasonable detail the documents, records, or other data to be destroyed or disposed and the other Party may request that the documents, records, or other data to be destroyed or disposed be delivered to that Party at requesting Party’s sole expense. Notwithstanding the foregoing, if any litigation, claim, negotiation, audit, or other action involving the documents, records, and other data has been started before the expiration of the applicable retention period, the documents, records, and other data shall be retained until completion of the action and resolution of all issues which arise from it, or until the end of the Applicable Retention Period, whichever is later, and until any outstanding litigation, audit, or claim has been fully resolved. f) Each Party agrees to fully cooperate at its own expense with the other Party in any litigation, investigation, or other action resulting from a Security Breach, if deemed reasonably necessary by the other Party to protect its rights relating to the use, disclosure, protection, and maintenance of Personal Information. g) In the event of any Security Breach, the Parties shall promptly use their best efforts to prevent a recurrence of any such Security Breach. 5) Return or Destruction of Personal Information. At any time during the term of the Agreement, at the Disclosing Party’s request or upon the termination or expiration of the Agreement for any reason, the Receiving Party shall, and shall instruct all Authorized Persons to, promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of Personal Information in its possession or the possession of such Authorized Persons, or securely dispose of all such copies, and certify in writing to the Disclosing Party that such Personal Information has been returned to the Disclosing Party or disposed of securely. The Receiving Party shall comply with all reasonable directions provided by the Disclosing Party with respect to the return or disposal of Personal Information. 6) Equitable Relief. Each Party acknowledges that any breach of its covenants or obligations set forth herein, or the other Party’s standard policies and procedures, may cause the other Party irreparable harm for which monetary damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the other Party is entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the other Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in the Agreement to the contrary. 7) Material Breach. A Party’s failure to comply with any of the provisions of this Information Security Agreement is a material breach of the Agreement. In such event, the non-breaching Party may terminate the Agreement effective immediately upon written notice to the breaching Party without further liability or obligation to the breaching Party. 8) Indemnification. Each Party (the “Indemnitor”) shall defend, indemnify, and hold harmless the other Party and the other Party’s subsidiaries, affiliates, and its respective officers, directors, employees, agents, successors, and permitted assigns (each, an “Indemnitee”) from and against any and all
losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers, arising out of or resulting from any third-party claim against any Indemnitee arising out of or resulting from Indemnitor’s failure to comply with any of its obligations under this Information Security Agreement.
Execution Version 1 CLAIMS SERVICES AGREEMENT This Claims Services Agreement (this “Agreement”) is made as of May 9, 2024 (the “Effective Date”) by and between SageSure Capital Holdings, Inc. (“SageSure”), and Interboro Insurance Company (“Company”). WHEREAS, SageSure, its affiliate SageSure Insurance Managers, LLC, and Company entered into that certain Program Administrator Agreement dated May 9, 2024 (the “PAA”); WHEREAS, SageSure is in the business of (i) receiving and processing claims on behalf of insurance carriers and (ii) providing claim adjusting and other claim-related services to clients such as Company through licensed insurance claim adjusters and other personnel; WHEREAS, SageSure owns and maintains systems for the purpose of adjusting and managing claims; and WHEREAS, Company desires to engage SageSure as an independent contractor to provide claim administration services. THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows: 1. SCOPE OF AGREEMENT a. Company hereby retains SageSure as an independent contractor to perform claim adjusting and other claim-related services as described in Exhibit A: Authority and Service Level Agreement on claims made under insurance policies issued by Company pursuant to the PAA, on the terms and conditions set forth in this Agreement, and SageSure accepts such assignment on said terms and conditions. 2. SAGESURE DUTIES a. SageSure shall utilize properly licensed claims adjusters (“Adjusters”) to adjust all insurance claims assigned to SageSure by Company pursuant to this Agreement, including Section 3 and Exhibit A, and related Services described in Exhibit A, which will be provided by appropriate staff for which no adjuster license is required (the “Services”). SageSure shall perform the Services in accordance with the terms and conditions of this Agreement and applicable law, and shall use the standards, practices, methods and procedures, and exercise the highest degree of skill, care, diligence, prudence and foresight, that would be expected to be observed by a skilled and experienced adjusting firm carrying out activities the same as or similar to the Services under the same or similar circumstances as those contemplated in this Agreement. b. SageSure may subcontract with independent contractors to provide Adjusters or to otherwise perform the Services that SageSure provides to Company. SageSure may also assign particular duties under this Agreement to certain of its affiliates or contractors. SageSure acknowledges that the use of a subcontractor or affiliate does not eliminate SageSure’s responsibility to meet all of SageSure’s obligations described in this Agreement. c. SageSure shall possess and maintain all necessary and proper licenses and insurance required by any law or regulation governing SageSure’s activities under this Agreement. SageSure warrants that all Adjusters and other personnel employed or engaged by SageSure to render Services under this Agreement are licensed and insured where required by law or regulation. d. Services rendered by SageSure under this Agreement shall:
Execution Version 2 1) Comply with all laws, regulations and rules that apply to Services rendered by SageSure under this Agreement. 2) Not contain any statement or representation, which is knowingly false, fraudulent or in violation of any legal obligation. 3) Be based upon written criteria, standards and guidelines of the Company. e. SageSure shall furnish or require each Adjuster to provide the Adjuster’s own supplies and transportation necessary to perform the Services. f. If requested by Company, SageSure agrees to use its best efforts to make Adjusters and supervisors from its roster of qualified Adjusters available for performing the Services within twenty-four (24) hours for Services under this Agreement, as more specifically described in Exhibit A. g. SageSure may retain no more than ninety (90) days estimated claims payments and allocated loss adjustment expenses. h. SageSure shall submit an account report to Company within fifteen (15) days after the end of business each calendar month. SageSure must maintain the account on file for at least three (3) years and must make the account available to the Department of Insurance for review. The account report shall include both insurance and reinsurance transactions, if applicable, and shall adhere to the following: 1) Contents. The report must contain the following information, by state and Annual Statement line of business: claim numbers, dates of loss, policy numbers, effective dates of policies, paid losses, paid loss adjustment expenses, outstanding losses, outstanding loss adjustment expenses, net salvage and subrogation recoveries, and recovery expenses. The report must also contain paid losses, legal expenses, and salvage and subrogation recoveries from inception to date. 2) Format and Data. SageSure and the Company shall mutually agree upon the form and data field content of the loss run report upon execution of this Agreement. i. SageSure shall provide a monthly detailed Claims extract report to Company within fifteen (15) days after the last day of each calendar month detailing any Claim resulting from a catastrophic event as declared by PCS (the “CAT Report”). The CAT Report must include insurance industry or local catastrophe coding, loss date, underwriting year, cause of loss, paid loss, outstanding loss, paid loss adjustment expense and outstanding loss for each Claim required to be included on the CAT Report. j. SageSure shall promptly notify Company in the event of any data breach which results in the accidental or unlawful destruction, loss, alteration of, or the unauthorized acquisition, disclosure, or access to non-public information in SageSure’s possession in accordance with the Information and Security Agreement attached hereto as Exhibit D. k. SageSure shall not: 1) commit the Company to participate in insurance or reinsurance syndicates; 2) collect any payment from a reinsurer or commit the Company to any claim settlement with a reinsurer without prior approval of the Company. If prior approval is given, a report must be promptly forwarded to the Company; 3) permit its subproducer to serve on the Company’s board of directors; 4) jointly employ an individual who is employed with the Company; or
Execution Version 3 appoint a sub-MGA. 3. COMPANY DUTIES a. The Company has ultimate authority and responsibility for the adjustment of claims, including (1) establishing reserves, (2) claims settlement, and (3) claims payment. b. New Claims. 1) Company will assign to SageSure exclusive claim adjusting authority for all new claims brought under Company’s policies (“New Claims”). Such assignment, and all services provided by SageSure under this Agreement with respect to New Claims, shall be effective on and after the earlier of: (1) fifteen (15) business days following the Effective Date, or (2) SageSure’s written notice to the Company that it is prepared to assume and perform such services (the “New Claims Effective Date”). Company shall not engage any other person or entity to adjust New Claims following the New Claims Effective Date during the Term of this Agreement. 2) SageSure shall adjust and administer all New Claims on SageSure’s own claims management system. c. Legacy Claims. 1) For avoidance of doubt, until the transition described in paragraph 3(c)(2) below is complete, the Company, at the Company’s expense, shall continue to adjust all Legacy Claims reported to the Company prior to the Effective Date (the “Legacy Claims”). However, Legacy Claims does not include any claim for which any filing with any court or other governmental authority has commenced on or before the Effective Date. 2) The Company hereby grants SageSure the authority to oversee and direct any other person or entity providing claims services to the Company for Legacy Claims. 3) The Company will assign to SageSure exclusive claim adjusting authority for all Legacy Claims as soon as practicable after Company’s claims adjuster employees, and , become SageSure employees (the “Adjuster Transition”). The parties shall cooperate to ensure that the Adjuster Transition occurs promptly following the Effective Date and without interference to the adjusting of Legacy Claims. 4) Except as expressly set forth elsewhere in this Agreement, during the Term, each party shall be responsible for its own expenses including: (1) maintenance of its claims management systems; and (2) wages and benefits owed to its employees. 5) The Company shall: a. maintain support for, and SageSure’s full access to, Legacy Claims on the Company’s claims management systems (including Majesco software and data) at the Company’s expense. b. continue to provide such support and access until all Legacy Claims are closed, all related information and data has been delivered to SageSure, and SageSure confirms in writing that it is able to manage such Claims on SageSure’s claims management system.
Execution Version 4 6) Notwithstanding anything to the contrary in this Agreement, the Company will continue to generate and file all reports and filings described in this Agreement with respect to Legacy Claims; provided, however, that after the Adjuster Transition, the former Company employees who join SageSure will continue to perform such reporting and filing functions consistent with their respective responsibilities immediately prior to the Effective Date and through access to the Company’s systems. d. Access to Data. Throughout the Term of this Agreement, the Company shall grant SageSure’s designated personnel direct access to all claims and policy data from the Company’s systems (including Majesco) as is reasonably necessary for the prompt and efficient performance of the Services by SageSure. e. The Company represents that this Agreement and Company’s engagement of SageSure under this Agreement have been duly authorized by all requisite action by Company, and constitute legal, valid and binding obligations of Company which are enforceable in accordance with their respective terms. No other actions are necessary on the part of Company to authorize Company’s execution and delivery of this Agreement. f. The Company’s conduct under this Agreement shall comply with all applicable laws, regulations and rules. 4. INDEPENDENT CONTRACTOR a. SageSure agrees that all Services rendered under this Agreement are those of an independent contractor. This Agreement does not create an agency relationship between SageSure and Company. Company shall have no obligation to provide any form of workers compensation insurance to SageSure, or its Adjusters, employees, or other personnel under state or federal laws. SageSure expressly disclaims and waives, for itself, its employees, and Adjusters any right or claim against Company for workers’ compensation, welfare, pension or retirement benefits or other forms of compensation or benefits (other than the fees payable to SageSure as set forth in Exhibit B and Exhibit C hereto) arising out of the Services performed hereunder. SageSure agrees to be fully responsible for and to pay when due all federal, state, and local taxes or contributions that SageSure is required by law to pay under Unemployment Insurance, Social Security, income tax and other laws by virtue of the performance of the Services. SageSure further agrees to fully comply with, and shall cause Adjusters to comply with, all statues, rules, regulations, and orders of any competent governmental authority applicable to the Services, including without limitation workers compensation laws and occupational safety and health laws, immigration laws, and anti-discrimination laws applicable to the Services. b. Except to the extent expressly authorized in writing by Company, SageSure understands and acknowledges that SageSure has no authority to bind Company to any agreement, contract, or settlement arrangement. 5. CONFIDENTIALITY AND INFORMATION SECURITY a. The parties may provide confidential information to one another, which may include (but is not limited to) proprietary information, technical data, trade secrets, know-how related to research, product plans, inventions, developments, services, software, prices, costs, discounts, databases, future plans, business affairs, process information, methodologies, analysis, customer lists, product design, information, copyrights, and other confidential information (collectively, “Confidential Information”) that are valuable, special and unique assets of the party disclosing the Confidential Information (the “Disclosing Party”). Confidential Information shall not
Execution Version 5 include information which: (a) is or becomes a part of the public domain through no act or omission of the Party receiving the information (the “Receiving Party”); (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third-party without restriction on disclosure; (d) is independently developed by the Receiving Party without use of the Confidential Information; or (e) is disclosed by operation of law. b. The Receiving Party will take commercially reasonable measures to protect the Confidential Information and treat it as strictly confidential. The Receiving Party agrees that it will not at any time or in any manner, either directly or indirectly, use any information for its own benefit, or divulge, disclose, or communicate in any manner any Confidential Information to any third party without the prior written consent of the Disclosing Party, unless required to do so by law or by a court or other forum of competent jurisdiction. In the event the Receiving Party is required by law to disclose any Confidential Information, the Receiving Party agrees to notify the Disclosing Party to the extent permitted by law prior to making any disclosure and to cooperate fully with the Disclosing Party in protecting such Confidential Information. c. The parties to this Agreement shall comply with the terms set forth in the Information Security Agreement attached hereto as Exhibit D. d. The confidentiality and information security provisions of this Agreement shall remain in full force and effect after the termination of this Agreement. 6. PAYMENT a. Company shall pay for SageSure’s Services in accordance with the Fee Schedules in Exhibit B and Exhibit C. Such compensation shall be consistent with New York Department of Financial Services Regulation 30, 11 NYCRR 105 through 109 (“Regulation 30”). b. Company shall issue payment to SageSure for Services performed under this Agreement on not less than a monthly basis. SageSure shall maintain records sufficient to substantiate SageSure’s charges hereunder. 7. INSURANCE a. SageSure, at its own expense, shall maintain in force at all times during the Term of this Agreement the following insurance issued by an insurance company or companies with at least an “A” rating by A.M. Best Company: 1) Worker’s Compensation Insurance coverage that complies with applicable statutory limits and Employer’s Liability coverage with limits of at least $1,000,000 each occurrence and $2,000,000 aggregate for any employee that provides Services under this Agreement; 2) Commercial General Liability Insurance coverage with limits of no less than $1,000,000 each occurrence and $2,000,000 aggregate covering SageSure and any employee providing Services under this Agreement; 3) Business Auto Liability Insurance (including Automobile Non-Ownership Liability) coverage with a combined single limit of not less than $1,000,000 each occurrence and $1,000,000 aggregate, if applicable, covering SageSure and any employee providing Services under this Agreement; 4) Professional Liability (Errors & Omissions) Insurance coverage with limits of no less than
Execution Version 6 $1,000,000 each occurrence and $1,000,000 aggregate covering SageSure and any employee providing Services under this Agreement; and 5) Umbrella or Excess Liability Insurance in an amount not less than $5,000,000 each occurrence and $5,000,000 aggregate. 6) Cybersecurity Insurance coverage with minimum limits of $5,000,000 for breach response, data and network liability, regulatory defense and fines, and data recovery, and with a retroactive date of not less than 365 days from the effective date of this agreement. 8. INDEMNIFICATION a. Company will indemnify and hold SageSure harmless from and against all claims, losses, damages, liabilities, judgments, or settlements (including bad faith), including reasonable costs, expenses, and attorney’s fees arising out of this Agreement that are caused by Company’s act, error or omission, except to the extent SageSure has caused or contributed to or compounded such act, error, or omission. b. SageSure will indemnify and hold Company harmless from and against all claims, losses, damages, liabilities, judgments, or settlements (including bad faith), including reasonable costs, expenses, and attorney’s fees arising out of this Agreement that are caused by SageSure’s act, error or omission, except to the extent Company has caused or contributed to or compounded such act, error, or omission. c. SageSure will indemnify and hold Company harmless from and against all claims, losses, damages, liabilities, judgments, or settlements (including bad faith), including reasonable costs, expenses, and attorney’s fees arising out of acts errors or omissions of any third party engaged by SageSure to provide Services, including their failure to maintain appropriate licenses or certificates. d. The terms of this Section 8 shall survive termination of this Agreement. 9. ASSIGNMENT Neither party may assign this Agreement directly or indirectly, in whole or in part, to any other person or entity without prior written approval by the other party: provided, that Administrator may assign this Agreement to a properly licensed affiliate upon written notice to Company. 10. TERM AND TERMINATION a. Unless terminated earlier, the initial term of this Agreement shall be one (1) year beginning on the Effective Date, and this Agreement will renew automatically for successive one-year terms (the initial term and each successive one-year term individually and collectively, the “Term”). Either party may terminate this Agreement by giving notice of its intent not to renew at least sixty (60) days prior to the end of the then current Term. The parties may mutually agree to terminate this Agreement at any time. b. Notwithstanding anything in this Agreement to the contrary, this Agreement will automatically terminate in the event that the Company becomes a controlled insurer within the same holding company system as SageSure for purposes of New York Insurance Law Section 1505. c. Termination upon Breach. At any time, either party may terminate this Agreement upon the occurrence of a material breach by the other party by providing written notice of such breach to the other party; however, if the material breach is:
Execution Version 7 1) Related to a monetary provision or obligation, the breaching party will have thirty (30) days after receipt of written notice of the breach from the other party within which to cure such monetary breach; 2) Related to a non-monetary provision or obligation, the breaching party will have sixty (60) days after the receipt of written notice of the breach from the other party within which to cure such non-monetary breach, and to provide written notice of same to the other party. 3) In the event of failure to cure, such termination will be effective as of the end of the calendar month following the applicable cure period. Company shall have the right to suspend the authority of SageSure and utilize alternative claims adjusting services during the cure period if Company believes: (i) that it is at risk of harm by continuing to utilize SageSure, or (ii) that it would be unlawful for Company to continue utilizing SageSure. d. Termination for Cause by Company. Notwithstanding the foregoing, Company may immediately, unless otherwise indicated below, terminate this Agreement, or suspend Services, in whole or in part, for cause, by providing written notice to SageSure. As used in this subsection, “Cause” will include the following: 1) SageSure becomes insolvent, institutes, or acquiesces in the institution of any bankruptcy, financial reorganization, or liquidation proceeding or any such proceeding instituted against SageSure or its parent corporation (SageSure will immediately notify Company of same); 2) SageSure engages in acts or omissions constituting abandonment, fraud, insolvency, misappropriation of funds, material misrepresentation, or gross and willful conduct; or 3) SageSure’s necessary license(s) is cancelled, suspended, revoked, or is declined renewal by any regulatory body within the Territory (as defined in Exhibit A) where SageSure renders the Services hereunder, if, after sixty (60) days, SageSure fails to remedy such loss of license (SageSure will immediately notify Company of same). e. Termination without Cause by Company. In connection with the termination of the PAA, the Company may terminate this Agreement at any time with 90 days written notice to SageSure. f. Termination by SageSure. Notwithstanding the foregoing, SageSure may immediately, unless otherwise indicated below, terminate this Agreement in whole or in part, for cause, by providing written notice to Company. As used in this subsection, “Cause” will mean the following: 1) Company becomes insolvent, is declared insolvent, if a receiver is appointed to wind up the Company’s affairs, or the Company or its parent corporation enters any liquidation proceeding (Company will immediately notify SageSure of same); 2) Company engages in acts or omissions constituting abandonment, fraud, insolvency, misappropriation of funds, material misrepresentation, or gross and willful conduct; or 3) Company’s necessary license(s) is cancelled, suspended, revoked, or is declined renewal by any regulatory body within the Territory where SageSure renders the services hereunder, if, after one hundred-twenty (120) days, Company fails to remedy such loss of license (Company will immediately notify SageSure of same). g. SageSure shall maintain all reports and records required under this Agreement and all files (including Claim files) and documents from which the data used to generate such reports and records were obtained, for at least seven (7) years after the expiration dates of the policies that generate Claims subject to this Agreement, seven (7) years after the date the Claim file was closed, or the minimum period required by law, whichever is longer. During this time, SageSure shall make the reports, records, files, documents and data available for inspection,
Execution Version 9 If to SageSure: SageSure Capital Holdings, Inc. 101 Hudson Street, Suite 2700 Jersey City, NJ 07302 Email: b. Governing Authority. All issues concerning this Agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the law of any jurisdiction other than the State of New York. c. Entire Agreement; Amendment; Waiver. This Agreement and any Exhibits hereto constitute the entire agreement of the parties to this Agreement with respect to its subject matter and may not be amended or changed except in a writing signed by the parties to this Agreement that specifies the effective date of the amendment or change. The failure of any party to this Agreement at any time or times to require the performance of any provision of this Agreement will in no manner affect the right to enforce the same and no waiver by any party to this Agreement of any provision or breach of any provision of this Agreement in any one or more instances will be deemed or construed either as a further or continuing waiver of any such provision or breach, or as a waiver of any other provision or breach of this Agreement. d. Negotiated Agreement. This Agreement has been negotiated by the parties and neither party may use the fact that any draft was prepared by the other party to have an effect on the construction or interpretation of this Agreement or any of its terms. e. Headings. The headings preceding the text of the articles, paragraphs, sections and sub- sections of this Agreement are intended and inserted solely for the convenience of reference and do not affect the meaning, construction or effect of this Agreement. f. No Third-Party Beneficiaries. This Agreement is only for the benefit of Company and SageSure and does not confer any right, benefit, or privilege upon any other person or entity. g. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument. h. Required Contract Provisions. If any statute, regulation or other law governing the business of the Company and SageSure requires certain contract provisions to be included in this Agreement, those required contract provisions are deemed to be included in this Agreement. i. Expenses. Except as set forth herein, each party shall be solely responsible for its own expenses. Any shared expenses of the Company and SageSure shall be allocated consistent with Regulation 30. j. Books and Records. Company’s books and records are defined to include all books and records developed or maintained under or related to this Agreement. All books and records of Company are and shall remain the property of Company and are subject to the control of Company. k. Company Funds. All funds and invested assets of Company are the exclusive property of Company, held for the benefit of Company, and are subject to the control of Company. Any funds of Company’s held by SageSure are to be held in a fiduciary capacity.
Execution Version 10 l. Severability. If any term of this Agreement is determined to be illegal or unenforceable in any jurisdiction, such illegality or unenforceability will not affect any other term of this Agreement or render such term illegal or unenforceable in any other jurisdiction. Upon determination that any term is illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner that allows the transactions contemplated by the Agreement to be consummated as originally contemplated to the greatest extent possible. [Signature page follows]
Execution Version 12 CLAIMS SERVICES AGREEMENT EXHIBIT A AUTHORITY AND SERVICE LEVEL AGREEMENT 1. GENERAL UNDERSTANDING Subject to the terms of this Agreement, SageSure will perform, on behalf of the Company, the level of duties described below while providing claims administration services on Property and Casualty risks underwritten and bound by Company. Territory: New York Loss Types: First Party Property Damage Third Party Bodily Injury and Property Damage Initial Reserving: First Party: System or user generated Bodily Injury Liability: System or user generated Third Party Property Damage Liability: System or user generated Reserving Authority: Actual estimated value of the loss Settlement Authority: First Party: Bodily Injury Liability: Third Party Property Damage Liability: 2. SERVICES The Company hereby retains SageSure to perform the following services (collectively, the “Services”) on behalf of the Company. a. SageSure shall prepare and deliver first notice of loss (“FNOL”) to Company as follows: 1) SageSure will provide call-center services on behalf of Company in receiving calls, emails, mail, and any other policyholder related communications related to FNOL; 2) SageSure will develop and maintain all technology needed to receive and adjudicate New Claims for Company. This includes: i. FNOL technology for receiving notice of loss both online (self-service) and over the phone, to be used by customer service representatives; and ii. Integration of the FNOL technology with SageSure’s Claims Management System (as defined below). b. For New Claims, SageSure: 1) will develop and maintain a claims management system (the “Claims Management System”) which will generate and/or store information for all Company claims and will also be used to request/initiate and record all claim related activity and payments; 2) will maintain configurations and user access within the Claims Management System including to manage/automate the assignments of claims, provision access to new users, and manage user access levels;
Execution Version 13 3) will provide and maintain payment-related services related to Company’s claim payments, and will work with a third-party to develop processes and applications that allow for a variety of electronic payment options; additionally, SageSure will integrate the Claims Management System with third-party application(s) to support electronic and other payment processes and reconciliation; and claim payments will be made directly to/from Company’s bank accounts; 4) will provide to Company monthly operational and analytical reports and data related to SageSure’s handling of New Claims pursuant to this Agreement no later than fifteen (15) calendar days after the end of each month; and 5) will ensure that back-up processes or systems are available as appropriate in the event of business disruption to the above-mentioned technologies. 6) For the avoidance of doubt, following the Adjuster Transition, the processes described in this subsection (b) for Legacy Claims will be performed by SageSure through direct access to the Company’s claims management system. c. SageSure will provide oversight and control processes, including, but not limited to: 1) Building system controls for identifying or referring claims for review by Company or others at Company’s direction; 2) Maintaining reports to monitor for trends and evaluating underlying causes and/or issues; 3) Monitoring claim results and referring potential questions, issues, or trends to Company; and 4) Identifying and addressing technical or operational issues or gaps in processes as requested by Company. d. Claims Adjusting 1) SageSure will contact and provide status to the insured/claimant in a timely manner, compliant with all applicable laws and regulations. 2) SageSure will use the Claims Management System to document key activities for each claim, including contact, inspection, status updates, letters, and estimate review. 3) SageSure will comply with all regulatory requirements and document such in the Claims Management System. 4) SageSure will adhere to contractual policy language in determining policy coverage and adjusting claims. e. Coverage Letters and Policy Interpretation 1) In any instance where a reservation of rights or coverage denial is challenged in writing by an insured, claimant, or such individual’s representative, SageSure will review the
Execution Version 14 reservation of rights or coverage denial with the Company in advance of the reissuance of a reservation of rights, coverage denial or other response to such challenge. 2) If SageSure identifies or receives notice of any facts that in SageSure’s professional judgment necessitate the exercise of or potentially trigger Company’s rights, under the policy or applicable law, to cancel or rescind such policy due to an insured’s breach of the Policy, fraud or misrepresentation in relation to the application for or a claim under the Policy, SageSure shall promptly notify Company of such facts, cooperate with Company during its evaluation of the matter and comply with Company’s instructions for handling the account thereafter. 3) SageSure shall notify and receive written approval from Company prior to retaining counsel for purposes of obtaining a coverage opinion or legal advice, or instituting legal action, in relation to: i. The interpretation of policy language as it applies to any Claim; or ii. The analysis of facts that are subject to e.1, above, and legal and contractual rights, duties and obligations arising out of such facts. f. Loss Reserves 1) Company reserves for incurred losses on a case-by-case basis. Initial Stat Reserves are generated at time of FNOL for each loss type established in the Initial Loss Reserve Development tables. 2) All Stat Reserves are reviewed (for change) and adjusted (as needed) when information is received that changes the potential value of the claim. Reasoning for reserve changes will be documented in the Claims Management System. g. Loss Notification (Communication) 1) Adjusters will promptly notify Company of all claims involving the following loss characteristics: i. Combined gross loss and expense of $100,000; ii. Policy limit demands or settlements; iii. Lawsuits; iv. Allegations of E&O, bad faith, punitive or other extra-contractual damages; v. Scheduled mediations, trials and employee depositions (date, time, location, attendees); vi. Department of Insurance and other regulatory body complaints or inquiries; vii. Potential Agency E&O; and viii. Fatalities (insured and/or third-party claimants).
Execution Version 15 2) In addition, in compliance with applicable law, SageSure shall notify Company about claims as follows: i. All claims shall be reported to Company in a timely manner. ii. A copy of the claim file shall be sent by SageSure to Company at Company’s request or as soon as SageSure determines that the claim involves any of the following characteristics: 1. has the potential to exceed one percent of the insurer’s surplus to policyholders, as reported in its last filed annual statement, or exceeds the limit set by the Company, whichever is less; 2. involves a coverage dispute; 3. may exceed SageSure’s Settlement Authority (as set forth in Section 1 of this Exhibit A); 4. has been open for more than six (6) months; or 5. is closed by payment of one percent of the Company’s surplus to policyholders, as reported in its last filed annual statement, or an amount set by the Company, whichever is less. iii. If the claim files are maintained in electronic format, SageSure agrees upon the Company’s request to transmit any file(s) requested in a reasonably timely manner. h. Complaints 1) SageSure will review all complaints for a timely response. 2) SageSure will notify the Company of all Service Requests, Civil Remedy Notices, and other complaints filed with an insurance regulator against the Company (“Regulatory Complaints”). The parties shall cooperate to prepare draft responses for approval, filing timely responses, and maintain appropriate complaint logs containing required information. SageSure shall maintain a log of all complaints subject to this Paragraph in the format and manner required by the applicable state DOI or other regulatory authority, and provide the complaint log to the Company no less frequently than quarterly. i. Approved Business Partners 1) When it becomes necessary to retain industry vendors and experts (i.e., field adjusters, appraisers, storage facilities, engineers, lawyers and others) to assist with claims investigations and related activities, only SageSure approved firms are to be employed for these purposes (“Approved Business Partners”). 2) A list of Approved Business Partners will be maintained by SageSure and available for viewing by the Company upon request. 3) Approved Business Partners shall adhere to the same requirements of confidentiality, information security, records, and cooperation as SageSure. j. Statutory Compliance
Execution Version 16 1) Adjusters and claims management personnel will comply with all applicable statutes, rules, regulations, fair claims practices and code of ethics that govern their profession in the various states in which SageSure is providing the Services. 2) SageSure will ensure that its sub-contractors will comply with all applicable statutes, rules, regulations, fair claims practices and code of ethics that govern their profession, and Company guidelines, for and within the Territory. 3) By evidence of the signatures to this Agreement, SageSure and the Company acknowledge the understanding of an agreement to each party’s service level expectations, the duties and tasks required to achieve such expectations, and measurements which describe success in delivering the services stated in this Exhibit A: Authority and Service Level Agreement. 4) SageSure shall permit Company to conduct an on-site review of SageSure’s Claims processing operations at least once every six (6) months or as reasonably requested by the Company. SageSure shall comply with all requests from regulators for access to records.
Execution Version 17 CLAIMS SERVICES AGREEMENT EXHIBIT B FEE SCHEDULE FOR CLAIMS ADMINISTRATION SERVICES 1. FEE SCHEDULE As consideration for the provision of the Services described in Exhibit A: Service Level Agreement: a. Company shall pay SageSure fees in the amount of of Company’s Gross Earned Premiums for Administrator Produced Policies, and of Company’s Gross Earned Premiums for all other policies. Gross Earned Premiums shall be calculated in accordance with Statutory Accounting Principles. As used in this Agreement, “Administrator Produced Policies” means new policies produced by Administrator pursuant to the PAA, including Legacy Policies renewed onto the New Insurance Product. “Legacy Policies” and “New Insurance Product” shall have the meanings ascribed to those terms in the PAA. b. Company shall pay SageSure CAT administration fees on relevant claims as set forth below: Event Type Per-Claim Fee PCS-declared event that is not a named storm (PCS is Property Claim Services, division of Verisk Analytics) Named Storm, category 1-3 at landfall as defined by the National Hurricane Center (NHC) Named Storm, category 4-5 at landfall as defined by the NHC c. In addition to the per-claim fee, Company shall pay SageSure the fees set forth on Exhibit C for services described therein related to field inspection and field adjusting. 2. BILLING AND PAYMENT SageSure shall prepare and submit monthly invoices to Company covering the total amount owed to SageSure under Section 1 in this Exhibit B for Services provided during the preceding month pursuant to this Agreement within thirty (30) days after the end of business each calendar month. Such invoices for Fees under Section 1(a) of this Exhibit B will be due and payable by Company to SageSure on not less than a monthly basis. Per-Claim Fees under Section 1(b), and field inspection and adjusting fees under Section 1(c), will be paid on a per-claim basis as ALAE from the claim file. 3. INCURRED COSTS
Execution Version 18 “Allocated Loss Adjustment Expenses” (ALAE) are the responsibility of the Company, and not deducted or paid from the fee for claims administration services. ALAE will be paid within the Claims Management System. ALAE includes but is not limited to the following: 1. Investigation expenses, including but not limited to third party adjusters, desk adjustment, field inspection, virtual inspections, aerial imagery, automated review fees, engineering, legal, subrogation, salvage, SIU investigation, and expert expenses. 2. Per-Claim Fees described in Section 1(b) of this Exhibit B. 3. Field inspection and adjusting fees described in Section 1(c) of this Exhibit B. 4. Extraordinary expenses incurred by SageSure at the request and with the approval of the Company that are not otherwise the responsibility of the SageSure under this Agreement.
Execution Version 19 CLAIMS SERVICES AGREEMENT EXHIBIT C FEE SCHEDULE FOR FIELD INSPECTIONS AND ADJUSTING 1. SCOPE SageSure may determine that a field adjuster should be assigned to conduct field inspections or other adjusting activities for a claim within the scope of this Agreement. SageSure may assign either a third-party field adjuster or a staff field adjuster to perform these services. Costs associated to field-adjusting services will be charged as ALAE in the Claim Handling System and will be assessed as follows: a. If a third-party field adjuster is used, then the costs of their services will be charged as invoiced. b. If a staff field adjuster is used, the following charges will apply: SageSure-Staff Field Adjusting Services Each assignment includes: insured contact, an inspection, estimate, diagrams, labeled photographs & narrative report that aligns with the documented SageSure estimating guidelines Assignments that are complex or are outside the bounds, as reasonably determined by SageSure, of the following fee schedule will be charged using the T&E hourly fee noted below. Any projected T&E expense that exceeds $2,500 will require carrier approval before work is commenced. Inspection Fees Dollar Amount Non-Cat Appraisal CAT Appraisal Additional Services Service Rate Notes Mileage Fee IRS Rate over 50 miles $0.63 per mile Cancellation Fee Fee applied if inspection completed but no estimate written Re-inspection Fee difference Minimum 0 If new adjuster assigned, minimum Rope & Harness: up to 2 story As invoiced expected fee Flood Inspection Fee In addition to schedule Hourly Rate - T&E As incurred and documented
Execution Version 20 CLAIMS SERVICES AGREEMENT EXHIBIT D INFORMATION SECURITY AGREEMENT Attached.
Information Security Agreement 1) Definitions. Capitalized terms used herein shall have the meanings set forth in this Section 1. “Agreement” means the agreement to which this Information Security Agreement is attached. “Authorized Employees” means employees of each Party who have a need to know or otherwise access Personal Information to enable the Parties to perform their obligations under the Agreement. “Authorized Persons” means (i) Authorized Employees; and (ii) each Party’s contractors, agents, or third parties, who have a need to know or otherwise access Personal Information to enable the Parties to perform their obligations under the Agreement, and who are bound in writing by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of this Information Security Agreement. “Highly Sensitive Personal Information” means an (i) individual's government-issued identification number (including Social Security number, driver's license number, or state-issued identification number); (ii) financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to an individual's financial account; (iii) biometric, genetic, health, medical, or medical insurance data; (iv) geolocation data; or (v) information regarding their racial or ethnic origin, religious beliefs, sex life or sexual orientation, union membership, or citizenship or immigration status. “Party” refers to each party (collectively, the “Parties”) to the Agreement. “Personal Information” means information provided to a Party (the “Receiving Party”) by or at the direction of the other Party (the “Disclosing Party”), information which is created or obtained by a Party (the “Receiving Party”) on behalf of the other Party (the “Disclosing Party”), or information to which access was provided to a Party (the “Receiving Party”) by or at the direction of the other Party (the “Disclosing Party”), in the course of the Parties’ performance under the Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to identify or authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, medical, or medical insurance data, answers to security questions, an individual's internet activity or similar interaction history, inferences drawn from other personal information to create consumer profiles, geolocation data, an individual's commercial, employment, or education history, and other personal characteristics and identifiers), in case of both subclauses (i) and (ii), including, without limitation, all Highly Sensitive Personal Information. A Party’s business contact information is not by itself deemed to be Personal Information. “Security Breach” means (i) any act or omission that compromises either the security, confidentiality, availability, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place by a Party (or any Authorized Persons) that relate to the protection of the security, confidentiality, availability, or integrity of Personal Information, or (ii) receipt of a complaint in relation to a Party’s privacy and data security practices
(or any Authorized Persons) or a breach or alleged breach of this Information Security Agreement relating to such privacy and data security practices. Without limiting the foregoing, a compromise shall include any unauthorized access to or disclosure or acquisition of Personal Information. 2) Standard of Care. a) The Parties acknowledge and agree that, in the course of performance of the Agreement, the Parties may create, receive, or have access to Personal Information. Each Party shall comply with the terms and conditions set forth in this Information Security Agreement in its creation, collection, receipt, transmission, storage, disposal, use, and disclosure of such Personal Information and be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession by all Authorized Persons. Each Party shall be responsible for, and remain liable to, the other Party for the actions and omissions of its Authorized Persons that are not Authorized Employees concerning the treatment of Personal Information as if they were the Party’s own actions and omissions. Each Party’s Personal Information is deemed to be Confidential Information of that Party and is not Confidential Information of the other Party. In the event of a conflict or inconsistency between this Section 2, on one hand, and the Agreement or this Information Security Agreement, on the other hand, the terms and conditions set forth in this Section 2 shall govern and control. b) In recognition of the foregoing, each Receiving Party agrees and covenants that it shall: i) keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure; ii) not create, collect, receive, access, or use Personal Information in violation of law; iii) use and disclose Personal Information solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to the terms and conditions of this Information Security Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for the Receiving Party’s own purposes or for the benefit of anyone other than the Disclosing Party, in each case, without the Disclosing Party’s prior written consent; and iv) not, directly or indirectly, disclose Personal Information to any person other than its Authorized Persons, including any subcontractors, agents, its own service providers or auditors (each, an “Unauthorized Third Party”), without the Disclosing Party’s prior written consent, unless and to the extent required by Government Authorities or as otherwise, to the extent expressly required, by applicable law, in which case, the Receiving Party shall (A) notify the Disclosing Party before such disclosure or as soon thereafter as reasonably possible; (B) be responsible for and remain liable to the Disclosing Party for the actions and omissions of such Unauthorized Third Party concerning the treatment of such Personal Information as if they were the Receiving Party’s own actions and omissions; and (C) require the Unauthorized Third Party that has access to Personal Information to execute a written agreement agreeing to comply with the terms and conditions of this Information Security Agreement relating to the treatment of Personal Information.
3) Information Security. a) Each Party represents and warrants that its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information does and will comply with all applicable federal, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives. b) Each Party shall implement and maintain a written information security program including appropriate policies, procedures, and risk assessments that are reviewed at least annually. c) Without limiting either Party’s obligations under Section 3(a), each Party shall implement administrative, physical, and technical safeguards to protect Personal Information from unauthorized access, acquisition, or disclosure, destruction, alteration, accidental loss, misuse, or damage that are no less rigorous than accepted industry practices, and shall ensure that all such safeguards, including the manner in which Personal Information is created, collected, accessed, received, used, stored, processed, disposed of, and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Information Security Agreement. If, in the course of performance under the Agreement, either Party has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information, such Party shall at all times remain in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at such Party’s sole cost and expense. d) At a minimum, each Party’s safeguards for the protection of Personal Information shall include: (i) limiting access of Personal Information to Authorized Persons; (ii) securing business facilities, data centers, paper files, servers, backup systems, and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (iii) implementing network, application, database, and platform security; (iv) securing information transmission, storage, and disposal; (v) implementing authentication and access controls within media, applications, operating systems, and equipment, including the use of multifactor authentication for access to any Personal Information; (vi) encrypting Personal Information stored on any [mobile] media; (vii) encrypting Personal Information when transmitted; (viii) strictly segregating Personal Information from information of the other Party or any third-party so that Personal Information is not commingled with any other types of information; (ix) conducting risk assessments, penetration testing, and vulnerability scans and promptly implementing, at the Party’s sole cost and expense, a corrective action plan to correct any issues that are reported as a result of the testing; (x) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable law; and (xi) providing appropriate privacy and information security training to the Party’s employees. e) During the term of each Authorized Employee's employment by a Party, the Party shall at all times cause such Authorized Employees to abide strictly by the Party’s obligations under this Information Security Agreement and its standard policies and procedures, a copy of which have
been provided to the other Party upon request. Each Party further agrees that it shall maintain a disciplinary process to address any unauthorized access, use, or disclosure of Personal Information by any of its officers, partners, principals, employees, agents, or contractors. 4) Security Breach Procedures. a) Each Party shall: i) provide the other Party with the name and contact information for one or more of the Party’s employees/security operations or other service desk who/which shall serve as the other Party’s primary security contact and shall be available to assist the other Party twenty- four (24) hours per day, seven (7) days per week as a contact in resolving obligations associated with a Security Breach; ii) notify the other Party of a Security Breach as soon as practicable, but no later than twenty- four (24) hours after the Party becomes aware of it; and iii) notify the other Party of any Security Breaches by emailing the other Party at an address provided by the other Party, with a copy by email to the Party’s primary business contact within the other Party. b) Immediately following notification of a Security Breach, the Parties shall coordinate with each other to investigate the Security Breach. The Parties agree to fully cooperate with each other in the handling of the matter, including, without limitation: (i) assisting with any investigation; (ii) providing physical access to the facilities and operations affected; (iii) facilitating interviews with employees and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law, regulation, industry standards, or as otherwise reasonably required by the other Party. c) The Party responsible for the Security Breach shall (i) at its own expense use best efforts to immediately contain and remedy any Security Breach and prevent any further Security Breach, including, but not limited to taking any and all action necessary to comply with applicable privacy rights, laws, regulations, and standards, and (ii) reimburse the other Party for all actual reasonable costs incurred by the other Party in responding to, and mitigating damages caused by, any Security Breach, including all costs of notice and/or remediation pursuant to Section 4(d). d) Each Party agrees that it shall not inform any third party of a Security Breach without first obtaining the other Party’s prior written consent, other than to inform a complainant that the matter has been forwarded to the Party’s legal counsel. Further, the Receiving Party agrees that the Disclosing Party shall have the sole right to determine: (i) whether notice of the Security Breach is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others as required by law or regulation, or otherwise in Disclosing Party’s discretion; and (ii) the contents of such notice, whether any type of remediation may be offered to affected persons, and the nature and extent of any such remediation. e) The Parties agree to maintain and preserve all documents, records, and other data related to any Security Breach for the longest of the following (the “Applicable Retention Period”): (i) five (5) years; (ii) any applicable retention period required by the Agreement or any other contract
between the Parties; or (iii) the length of time required by applicable law or regulation. Prior to destruction or disposal of such documents, records or other data, each Party shall provide no less than 90 days prior written notice to the other Party specifying in reasonable detail the documents, records, or other data to be destroyed or disposed and the other Party may request that the documents, records, or other data to be destroyed or disposed be delivered to that Party at requesting Party’s sole expense. Notwithstanding the foregoing, if any litigation, claim, negotiation, audit, or other action involving the documents, records, and other data has been started before the expiration of the applicable retention period, the documents, records, and other data shall be retained until completion of the action and resolution of all issues which arise from it, or until the end of the Applicable Retention Period, whichever is later, and until any outstanding litigation, audit, or claim has been fully resolved. f) Each Party agrees to fully cooperate at its own expense with the other Party in any litigation, investigation, or other action resulting from a Security Breach, if deemed reasonably necessary by the other Party to protect its rights relating to the use, disclosure, protection, and maintenance of Personal Information. g) In the event of any Security Breach, the Parties shall promptly use their best efforts to prevent a recurrence of any such Security Breach. 5) Return or Destruction of Personal Information. At any time during the term of the Agreement, at the Disclosing Party’s request or upon the termination or expiration of the Agreement for any reason, the Receiving Party shall, and shall instruct all Authorized Persons to, promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of Personal Information in its possession or the possession of such Authorized Persons, or securely dispose of all such copies, and certify in writing to the Disclosing Party that such Personal Information has been returned to the Disclosing Party or disposed of securely. The Receiving Party shall comply with all reasonable directions provided by the Disclosing Party with respect to the return or disposal of Personal Information. 6) Equitable Relief. Each Party acknowledges that any breach of its covenants or obligations set forth herein, or the other Party’s standard policies and procedures, may cause the other Party irreparable harm for which monetary damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the other Party is entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the other Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in the Agreement to the contrary. 7) Material Breach. A Party’s failure to comply with any of the provisions of this Information Security Agreement is a material breach of the Agreement. In such event, the non-breaching Party may terminate the Agreement effective immediately upon written notice to the breaching Party without further liability or obligation to the breaching Party. 8) Indemnification. Each Party (the “Indemnitor”) shall defend, indemnify, and hold harmless the other Party and the other Party’s subsidiaries, affiliates, and its respective officers, directors, employees, agents, successors, and permitted assigns (each, an “Indemnitee”) from and against any and all
losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers, arising out of or resulting from any third-party claim against any Indemnitee arising out of or resulting from Indemnitor’s failure to comply with any of its obligations under this Information Security Agreement.