Minimum
Premium Administrative Services Agreement
Amended And
Restated Effective January 1, 2005
ADMINISTAFF
OF TEXAS, INC.
UNITED
HEALTHCARE INSURANCE COMPANY
Hartford,
Connecticut
*** indicates
material has been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission. A
complete copy of this agreement has been filed separately with the
Securities and Exchange Commission.
Minimum Premium
Administrative Services Agreement
Section 1:
Definitions
Section 2: Performance under the Policies
Section 3: Additional Services
Section 4: Maintenance of Records and Reporting to the
Employer
Section 5: Information Access, Audit and Confidentiality
Section 6: Additional Duties of the Employer
Section 7: Disputes and Indemnification
Section 8: Taxes and Assessments
Section 9: Effective Date and Agreement Period
Section 10: Service Fees
Section 11: Termination of Agreement
Section 12: Costs of Collection
Section 13: Assignment
Section 14: Choice of Law
Section 15: Entire Agreement, Amendment and Waiver
Section 16: Notices
Exhibit A
Performance
Standards
Exhibit B Additional Services [RESERVED]
Exhibit C Reporting by the Company
Exhibit D Third Party Disclosure Agreement
Exhibit E Eligibility Reporting by the Employer
Exhibit F Alternate Vendors
Minimum
Premium Administrative Services Agreement
Amended And Restated Effective January 1, 2005
ADMINISTAFF
OF TEXAS, INC.
UNITED
HEALTHCARE INSURANCE COMPANY
Hartford, Connecticut
WHEREAS, the Employer is a
“professional employer organization” that establishes
co-employment relationships with the employees of its Clients;
and
WHEREAS, the Employer has
established an employee welfare plan for certain employees, former
employees and their dependents of the Employer; and
WHEREAS, the Employer
desires the Company to furnish insurance, as well as certain
administrative services with respect to the Plan; and
WHEREAS, on or about
June 25, 2002, the Employer and the Company executed the
Minimum Premium Administrative Services Agreement effective
January 1, 2002 (“Original Agreement”), and on or
about December 3, 2004, the Employer and the Company executed
an amendment to the Original Agreement; and
WHEREAS, the Employer and
the Company now wish to further amend and restate the Original
Agreement, as amended, in its entirety effective January 1,
2005;
NOW THEREFORE, in
consideration of the mutual promises contained in the Agreement,
the Employer and the Company agree as follows:
|
(a)
|
|
“Agreement” means this
Minimum Premium Administrative Services Agreement, Amended and
Restated Effective January
|
|
|
|
1,
2005, including any attached Exhibits, as amended from time to
time.
|
|
|
|
|
|
(b)
|
|
“Check” means the
instrument of payment issued by the Company for the payment of
Health Benefits pursuant to the Agreement whether such instrument
is a draft, a check, or an electronic funds transfer or similar
instrument.
|
|
|
|
|
|
(c)
|
|
“Claims Account” has the
meaning assigned to it in section 1(e) of the MP Financial
Agreement.
|
|
|
|
|
|
(d)
|
|
“Client” means any
organization that has a client service agreement or other similar
agreement with the Employer.
|
|
|
|
|
|
(e)
|
|
“Company” means United
HealthCare Insurance Company.
|
|
|
|
|
|
(f)
|
|
“Confidential Participant
Information” has the meaning assigned to it in section
5(a)(i) of the Agreement.
|
|
|
|
|
|
(g)
|
|
“Effective Date” has the
meaning assigned to it in section 9 of the Agreement.
|
|
|
|
|
|
(h)
|
|
“Employee” means an
employee or former employee of the Employer or of a member of
Employer’s controlled group as defined in Section 414(b) and
(c) of the Internal Revenue Code of 1986, as amended, which is
a participating employer under the Plan who is covered under the
Plan, and a “qualified beneficiary” who is covered
under the Plan pursuant to Title X of the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended from time to time
(“COBRA”), except that members of a family unit who
elect COBRA coverage as a single family unit shall be considered a
single “Employee.”
|
|
|
|
|
|
(i)
|
|
“Employer” means
Administaff of Texas, Inc.
|
|
|
|
|
|
(j)
|
|
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from
time to time.
|
|
|
|
|
|
(k)
|
|
“Health Benefits” or
“Benefits” has the meaning assigned to it under the MP
Financial Agreement.
|
|
(l)
|
|
“Incurred” when
referring to Health Benefits means that the Company has become
liable for payment of such Health Benefits under a
Policy.
|
|
|
|
|
|
(m)
|
|
“Investment Grade” has
the meaning assigned to it under the MP Financial
Agreement.
|
|
|
|
|
|
(n)
|
|
“MP Arrangement” means
the Minimum Premium Arrangement as defined in the MP Financial
Agreement.
|
|
|
|
|
|
(o)
|
|
“MP Financial Agreement”
means the Minimum Premium Financial Agreement between the Employer
and the Company, as amended from time to time.
|
|
|
|
|
|
(p)
|
|
“Non-MP Policy” means a
group medical insurance policy or group contract issued by the
Company (or another member of the Company’s controlled group)
to the Employer that is identified as a Non-MP Policy in the MP
Financial Agreement. “Non-MP Policies” refers
collectively to two or more such Policies, group contracts or
both.
|
|
|
|
|
|
(q)
|
|
“Paid” when referring to
Health Benefits, means that a Check for payment of such Health
Benefits has been ***.
|
|
|
|
|
|
(r)
|
|
“Participant” means an
Employee or his or her dependent who is covered under the Plan and
who has been identified by the Employer as such pursuant to section
6(a) of the Agreement.
|
|
|
|
|
|
(s)
|
|
“Plan” means the
employee health benefit plan maintained by the Employer that is
insured by a Policy, but only to the extent benefits under the
employee benefit plan are subject to the MP Financial Agreement.
Any benefits that are insured by a Policy but not subject to the MP
Financial Agreement are excluded from the term
“Plan”.
|
|
|
|
|
|
(t)
|
|
“Policy” means a group
health insurance policy issued by the Company to the Employer that
is identified as a Policy in the MP Financial Agreement.
“Policies” refers collectively to two or more such
policies.
|
|
|
|
|
|
(u)
|
|
“Proprietary Business
Information” has the meaning assigned to it in section
5(d)(iii) of the Agreement.
|
|
(v)
|
|
“Security Deposit” has
the meaning assigned to it in the Security Deposit
Agreement.
|
|
|
|
|
|
(w)
|
|
“Security Deposit
Agreement” means the Security Deposit Agreement between the
Company and the Employer, as amended from time to time.
|
|
|
|
|
|
(x)
|
|
“Scope” has the meaning
assigned to it in section 5(b)(i) and 5(c)(i), as appropriate, of
the Agreement.
|
|
|
|
|
|
(y)
|
|
“Third Party Disclosure
Agreement” is the agreement attached as Exhibit D
of the Agreement.
|
Section 2:
Performance under the Policies
|
(a)
|
|
The
Company shall perform each of its duties and obligations under each
Policy in accordance with such Policy’s terms and all
applicable laws and regulations. To the extent that, pursuant to a
Policy, the Company is responsible for the performance of any duty
imposed on the Employer and/or the Plan under applicable laws and
regulations, including but not limited to ERISA and the Health
Insurance Portability and Accountability Act, the Company shall
perform such duty in accordance with such laws and
regulations.
|
|
|
|
|
|
(b)
|
|
The
Employer hereby and under the Policies designates the Company,
pursuant to a procedure set forth in the Plan, as the
“fiduciary” as defined by ERISA for the purpose of (i)
reviewing, making decisions on and paying claims for Health
Benefits and (ii) reviewing and making decisions on denials of
such Health Benefits. The Company shall serve as the final review
committee under the Plan to determine for all parties all questions
relating to the payment of Health Benefits and shall have the
discretion, authority, and responsibility to construe and interpret
the terms of the Plan and to make factual
determinations.
|
|
|
|
|
|
(c)
|
|
The
rate of accuracy of Health Benefit payments by the Company under
each Policy and each Non-MP Policy shall be consistent with the
accuracy rate that a reasonably prudent claims administrator would
be expected to achieve under similar circumstances. The amounts
payable by the Employer under the Agreement, the MP Financial
Agreement and the Policies
|
|
|
|
and
Non-MP Policies shall be subject to the modifications specified in
the performance standards set out in Exhibit A
.
|
|
|
|
|
|
(d)
|
|
The
Company shall provide services to recover Overpayments, as defined
below, paid under the Policies and Plan benefits that were paid
under the Policies and are recoverable by the Plan because payment
was or should have been made by a third party (other than in
connection with coordination of benefits, Medicare, or other
Overpayments) for the same expense.
|
|
|
(i)
|
|
The
Company engages affiliated and unaffiliated vendors to assist in
the recovery of Overpayments and third party claims made with
respect to the Policies and Non-MP Policies. The fees charged by
both affiliated and unaffiliated vendors are netted against any
recoveries. If the fee charged by any affiliated vendor exceeds ***
of the recovery, the Company shall notify the Employer within 30
calendar days of the effective date of such charge. The Employer
shall not be responsible for the cost of recovering any
Overpayments made by the Company due to the Company’s *** as
determined by mutual agreement of the parties or by a court or
other tribunal.
|
|
|
|
|
|
|
|
(ii)
|
|
The
Employer delegates to the Company the discretion and authority to
develop and use standards and procedures for any recovery under
this section, including but not limited to, whether or not to seek
recovery, what steps to take if the Company decides to seek
recovery, and under what circumstances to compromise a claim or
settle for less than the full amount of the claim. The Employer
recognizes that use of these standards and procedures may not
result in recovery or in full recovery for any particular case. The
Company will not pursue any recovery if any applicable law does not
permit it, or, if recovery would be impractical. The Company may
choose to initiate litigation to recover payments, but it shall
have no obligation to pursue litigation. If the Company initiates
litigation, the Employer shall cooperate with the Company in the
litigation.
|
|
|
|
|
|
|
|
(iii)
|
|
If
the Agreement terminates, or, if the Company’s recovery
services terminate, the Company may, but is not required to,
continue to recover any Overpayments. The Company shall include
Overpayments recoveries in the Termination Review (as defined in
Exhibit A to the MP Financial
|
|
|
|
|
Agreement) in the manner reflected
in Exhibit A to the MP Financial Agreement, and the
Company shall otherwise be authorized to retain all Overpayments
recoveries obtained after the Claims Recognition Date (as defined
in the MP Financial Agreement).
|
|
|
|
|
|
|
|
(iv)
|
|
The
Employer will not engage any entity except the Company to provide
these recovery services without the Company’s prior
approval.
|
|
|
|
|
|
|
|
(v)
|
|
For
purposes of the Agreement, “Overpayments” shall mean
payments that exceed the amount payable under a policy (for
example, because of a provider billing error, retroactive or
inaccurate eligibility information, coordination of benefits,
Medicare disputes, or missing information), and other overcharges
made by providers, including hospitals, discovered during the
course of a hospital bill audit.
|
|
(e)
|
|
Claims Incurred prior to termination
of any Policy shall be processed in accordance with such
Policy.
|
Section 3: Additional
Services
The Company shall provide
to the Employer those additional services identified in Exhibit
B . Fees for those services are specified in the
Exhibit.
Section 4:
Maintenance of Records and Reporting to the Employer
|
(a)
|
|
The
Company will maintain all claims records for the period required by
ERISA. Following termination of the Agreement, the Company will
supply the Employer with historical information in the
Company’s possession reasonably needed by the Employer to
administer the Plan. In addition, during the year following
termination, the Employer may request and the Company shall
provide, at its prevailing charge, the following
information:
|
|
|
(i)
|
|
As
to each Policy and Non-MP Policy that terminates at any date other
than December 31, the following reports for the relevant
period of the calendar year in which such Policy or Non-MP Policy
terminates:
|
|
|
(A)
|
|
Year-to-date claims analysis for
such year reflecting, for each Participant, total charges,
deductibles, co-insurance and out-of-pocket maximum charges;
and
|
|
|
|
|
|
|
|
(B)
|
|
Per
Participant, year-to-date report regarding relevant annual benefit
maximums.
|
|
|
(ii)
|
|
For
each Policy and Non-MP Policy:
|
|
|
(A)
|
|
Per
Participant, lifetime maximum report and
|
|
|
|
|
|
|
|
(B)
|
|
Per
Participant, lifetime maximum report regarding, as applicable,
specific medical conditions, treatments, therapies, services and/or
benefits.
|
|
(b)
|
|
The
Company shall make the necessary reporting to the United States
Internal Revenue Service regarding payments that are made by the
Company on behalf of the Plan to health care providers pursuant to
the Agreement.
|
|
|
|
|
|
(c)
|
|
The
Company shall provide the Employer with information, as required by
ERISA, in a manner that enables the Employer to comply with
ERISA’s annual reporting requirements.
|
|
|
|
|
|
(d)
|
|
The
Company shall provide to the Employer the reports identified in
Exhibit C to the Agreement.
|
|
|
|
|
|
(e)
|
|
The
Company receives payments from prescription drug manufacturers in
connection with pharmacy benefit services provided to its
customers, including the Employer. The Company shall promptly
notify the Employer if the average payment per member per month
(determined annually) attributable to the Policies and Non-MP
Policies exceeds by more than *** per member per month the average
payment for all of the Company’s *** business. The Company
shall notify the Employer of such excess, if any, for 2004 by the
deadline for the Quarterly Review for the first Quarter of 2005,
and annually thereafter.
|
Section 5:
Information Access, Audit and Confidentiality
|
(a)
|
|
Employer’s Access to
Information .
During the term of the Agreement, if in order to administer the
Plan, the Employer reasonably requests information, for an auditor
or otherwise, that
|
|
|
|
the
Company has in its possession, the Company will provide access to
that information, if legally permissible, as long as the
information relates to the Company’s services under the
Agreement, and the Employer provides (60) sixty calendar days
prior notice of the need for the information.
|
|
|
(i)
|
|
The
Employer hereby represents that any request by the Employer for
disclosure of any information that contains personally identifiable
information about a Participant (“Confidential Participant
Information”) shall constitute the Employer’s
representation to the Company that the Participant has authorized
disclosure to the Employer or the Employer otherwise has the legal
authority to have access to the information. The Employer must also
represent at the time of the disclosure request that it has a
reasonable procedure in place for handling Confidential Participant
Information as required by any then current law.
|
|
|
|
|
|
|
|
(ii)
|
|
The
Company will provide information only while the Agreement is in
effect, unless the Employer demonstrates that the information is
required for Plan purposes and such disclosure is permitted by law.
The Employer shall pay the Company’s reasonable expenses in
providing information after the termination of the
Agreement.
|
|
|
|
|
|
|
|
(iii)
|
|
The
Company will also provide reasonable access to information to an
entity providing services to the Employer, such as an auditor or
other consultant, upon request. Before the Company gives access to
Confidential Participant Information to that entity, that entity
will be required to sign a Third Party Disclosure Agreement,
substantially in the form of Exhibit D .
|
|
(b)
|
|
Audits by the Employer
. During the term of the
Agreement, the Employer or a mutually agreeable entity may audit
the Company to determine whether it is fulfilling its obligations
under the Agreement.
|
|
|
(i)
|
|
The
Employer shall advise the Company at least sixty (60) calendar
days in advance of its intent to audit. The place, time, type,
duration, and frequency of all audits must be reasonable and agreed
to by the Company, which consent
|
|
|
|
|
shall not be unreasonably withheld.
All audits shall be limited to information relating to the calendar
year in which the audit is conducted and/or the immediately
preceding calendar year. With respect to the Company’s
transaction processing services, the audit scope and methodology
shall be consistent with generally acceptable auditing standards,
including a statistically valid random sample or other acceptable
audit technique as reasonably approved by the Company (for purposes
of this subsection (b), “Scope”).
|
|
|
|
|
|
|
|
(ii)
|
|
The
Employer will pay any expenses that the Employer incurs, and will
be charged a reasonable additional fee, determined by the Company,
for more than one audit every twelve (12) months, for any
on-site audit visit that is not completed within five
(5) business days, or for sample sizes exceeding the Scope set
forth above. The Employer will incur a reasonable per claim charge
for samples in excess of the Scope, and a $1000 charge for each day
an audit exceeds the five (5) day on-site review limit per
year. The additional fees cover the additional resources, facility
fees, and other incremental costs associated with an audit that
exceeds the Scope. The Employer will also pay any unanticipated
reasonable expenses the Company incurs and all expenses incurred by
the Company on any audit initiated after a termination notice is
provided but before the effective date of the termination of the
Agreement.
|
|
|
|
|
|
|
|
(iii)
|
|
The
Employer will provide the Company with a copy of any final audit
report.
|
|
(c)
|
|
Audits by the Company
. During the term of the
Agreement, the Company may audit the Employer to determine whether
the Employer is fulfilling its obligations under the
Agreement.
|
|
|
(i)
|
|
The
Company shall advise the Employer at least sixty (60) calendar
days in advance of its intent to audit. The place, time, type,
duration, and frequency of all audits must be reasonable and agreed
to by the Employer, which consent shall not be unreasonably
withheld. All audits shall be limited to information relating to
the calendar year in which the audit is conducted and/or the
immediately preceding calendar year. The audit scope and
methodology shall be
|
|
|
|
|
consistent with generally acceptable
auditing standards, including a statistically valid random sample
or other acceptable audit techniques as reasonably approved by the
Employer (for purposes of this subsection (c),
“Scope”). The Company will bear any expenses that it
incurs in conducting an audit. The Company shall provide the
Employer with a copy of any final audit report.
|
|
|
|
|
|
|
|
(ii)
|
|
The
Company shall pay any expenses that the Company incurs, and will be
charged a reasonable additional fee, determined by the Employer,
for more that one audit every twelve (12) months, for any
on-site audit visit that is not completed within five
(5) business days, or for sample sizes exceeding the Scope set
forth above. The Company shall incur a $1000 charge for each day an
audit exceeds the five (5) day on-site review limit per year.
The Company shall incur a reasonable per Client charge for samples
in access of the Scope. The additional fees cover the additional
resources, facility fees, and other incremental costs associated
with an audit that exceeds the Scope. The Company will also pay any
unanticipated reasonable expenses the Employer incurs and all
expenses incurred by the Employer on any audit initiated after a
termination notice is provided but before the effective date of the
termination of the Agreement.
|
|
(d)
|
|
Confidentiality
. Except as otherwise
provided herein or required by law, Proprietary Business
Information and Confidential Participant Information will be the
used solely to administer the Plan or to perform under the
Agreement.
|
|
|
(i)
|
|
Except as provided in paragraph
(ii) of this subsection (d), Confidential Participant
Information and Proprietary Business Information will not be
disclosed to any person or entity other than either party’s
employees, subcontractors, or representatives needing access to
such information to administer the Plan or perform under the
Agreement.
|
|
|
|
|
|
|
|
(ii)
|
|
The
Company or a related entity may the use Confidential Participant
Information for research, creating comparative databases,
statistical analysis, or other studies, provided that the
information is de-identified or the use of the Confidential
Participant Information is otherwise in
|
|
|
|
|
accordance with then current law.
The Company will maintain the confidentiality of such information
as it relates to or could be identified with any individual
Participant, provider, the Employer, any Client or the
Employer’s or Client’s business. Such research,
databases, analyses, and studies are considered by the Company to
be Proprietary Business Information as defined in the following
clause.
|
|
|
|
|
|
|
|
(iii)
|
|
“Proprietary Business
Information” means information about the business of the
Company or the Employer that is confidential, proprietary, trade
secret or is not readily available to the general public, or
information that has been designated by either of the parties as
confidential or proprietary.
|
|
(e)
|
|
Publicity . The Company and the Employer
acknowledge the important legal and economic interests each party
has in the protection of its respective trademarks and tradenames,
as well as in the accuracy and appropriateness of information
released to the public concerning such party. Accordingly, each
party shall obtain the consent of the other for the use of the
other party’s name as follows:
|
|
|
(i)
|
|
With respect to any media release,
advertising campaign and other similar public announcement by one
party referring to the other party (“Media Release”),
the disclosing party shall provide to the other party a Disclosure
Notice (as defined below).
|
|
|
(A)
|
|
An
Authorized Person shall provide written objections or written
approval on behalf of the non-disclosing party within 24 hours. For
purposes of this subsection, with respect to the Company, its
General Counsel and President, Small Business Operations, are both
Authorized Persons. With respect to the Employer, the Vice
President, Benefits, and the General Counsel are Authorized
Persons. By written notice to the other party, either party may
change its Authorized Persons.
|
|
|
|
|
|
|
|
(B)
|
|
In
no event may a disclosing party publish (or cause to be published)
a Media Release without the prior
|
|
|
|
|
written approval of an Authorized
Person of the other party.
|
|
|
(ii)
|
|
With respect to a filing or written
communication with a state department of insurance or department of
health, or other similar regulatory body, by one party referring to
the other party (“Special Regulatory Filing”), the
disclosing party shall provide to the other a Disclosure Notice.
The disclosing party may file or publish the Special Regulatory
Filing if the other party does not object in writing within 5
business days of the Disclosure Notice. In no event may a party
file or publish a Special Regulatory Filing if the other party
provides a timely written objection unless the stated objection has
been resolved by the parties or unless required by law or pursuant
to a valid court order.
|
|
|
|
|
|
|
|
(iii)
|
|
With respect to all other regulatory
filings, public announcements and public disclosures referring to
the other party, other than such releases, announcements,
disclosures, employee enrollment and communication materials as are
used on a regular basis in the ordinary course of a party’s
business, (“Other Disclosures”) a disclosing party
shall use its best efforts to provide to the other a Disclosure
Notice at least 5 business days in advance of the proposed
announcement or disclosure date of such Other Disclosure. In no
event may a party file or publish Other Disclosures if the other
party provides a timely written objection unless the stated
objection has been resolved by the parties unless required by law
or pursuant to a valid court order.
|
|
|
|
“Disclosure Notice”
means a written statement identifying and attaching the relevant
portion of the proposed disclosure, indicating the proposed
disclosure date and time, and identifying to whom any objections
should be delivered.
|
Section 6: Additional
Duties of the Employer
|
(a)
|
|
The
Employer shall provide the following information and reports to the
Company -
|
|
|
(i)
|
|
The
Employer will identify to the Company those Employees, dependents
and/or other persons eligible to
|
|
|
|
|
be
Participants. In processing claims and providing other services
under the Agreement, the Company will be entitled to rely on the
most current information in its possession regarding Participant
eligibility. The Employer shall report eligibility to the Company
as provided in Exhibit E of the Agreement, and
eligibility information will be effective in claims processing as
described in such Exhibit.
|
|
|
|
|
|
|
|
(ii)
|
|
The
Employer shall provide such other reports to the Company, including
but not limited to risk management reports, as are described in
Exhibit E of the Agreement.
|
|
(b)
|
|
The
Employer shall conduct its business with each Client and administer
the Plan to ensure that –
|
|
|
(i)
|
|
each Employee has available no more
than one open enrollment period per calendar year (other than
qualifying status change events or otherwise in accordance with
section 125 of the Internal Revenue Code of 1986, as amended) and
the Employer administers the Benefits under the Plan on a calendar
year basis notwithstanding the effective date of the Client’s
participation in the Plan;
|
|
|
|
|
|
|
|
(ii)
|
|
at
least *** of the eligible Employees of the Employer participate in
the Plan (for this purpose, an eligible employee who is covered as
a dependent under such employee’s spouse’s group health
coverage is deemed covered under the Plan), and, as to each Client,
no Employee contributes more than *** of the contribution required
for “employee only” coverage; provided that for so long
as at least *** of the total Clients meet this contribution
standard, then Employer may continue or renew service agreements
with Clients under which Employees’ contribution for
“employee only” coverage is more than ***; provided
further that no new service agreements violative of this
contribution standard shall be executed on or after June 1,
2002.
|
|
|
|
|
|
|
|
(iii)
|
|
except as provided in
Exhibit F to the Agreement, each Employee is offered
concurrently no more than ***;
|
|
|
(iv)
|
|
except as provided in
Exhibit F to the Agreement, the Company shall be the
exclusive provider of health and dental benefits for each
Employee;
|
|
|
|
|
|
|
|
(v)
|
|
if
the Employer terminates coverage for all or substantially all
Employees at a worksite, that termination *** as of the date of
notice to the Company of the termination.
|
|
|
|
For
purposes of this section (6)(b), “the Plan” shall mean
the plan of benefits provided by the Employer under both the
Policies and the Non-MP Policies.
|
|
|
|
|
|
(c)
|
|
Except to the extent that
(i) the Agreement specifically requires the Company to have
fiduciary responsibility, or (ii) a Policy imposes
responsibility on the Company for a specific Plan administrative
function, the Employer accepts complete responsibility for the
Plan, including its design, and for compliance with any laws that
apply to the Plan.
|
|
|
|
|
|
(d)
|
|
The
Employer will provide to Participants the information and documents
they need to obtain Health Benefits within a reasonable period of
time after coverage begins. In the event of the termination of the
Agreement, the MP Financial Agreement or the Policy, the Employer
will notify all affected Participants of the
termination.
|
|
|
|
|
|
(e)
|
|
Upon the Company’s request,
the Employer shall provide to the Company documentation of the
Employer’s current debt rating, if applicable. In addition,
the Employer shall notify the Company immediately upon learning
that the Employer’s debt rating has fallen below Investment
Grade.
|
|
|
|
|
|
(f)
|
|
The
following provisions govern coverage provided to new Clients
obtained by the Employer as a result of the Employer’s
acquisition of, joint venture with, or any similar type of
transaction with another professional employer organization
(“New PEO Clients”).
|
|
|
(i)
|
|
The
Employer may not add New PEO Clients to the MP Arrangement or to
the Non-MP Policies without the express written consent of the
Company. Within not more than 30 calendar days following the
Company’s receipt of all information required by the Company
to evaluate the
|
|
|
|
|
economic risk associated with the
proposed addition of the New PEO Client(s) to the MP Arrangement as
a result of any such acquisition or transaction, the Company shall
inform the Employer of its decision regarding such proposed
addition and, if such addition is approved, any condition(s),
including separate rating for a designated period, which the
Company intends to impose as a condition to such
addition.
|
|
|
|
|
|
|
|
(ii)
|
|
Within a reasonable period of time
not to exceed six (6) months after consummation of the
transaction, the Employer must provide to New PEO Clients coverage
under the MP Arrangement or a Company product that is *** to that
which the New PEO Clients ***, but different and separate from the
MP Arrangement, if offered by the Company. In either case, within
such six (6) month period, the Company shall be the ***
coverage for such ***.
|
|
|
|
|
|
|
|
(iii)
|
|
If
the Company exercises its right under section 6(f)(i) of the
Minimum Premium Services Agreement to decline the addition to the
MP Arrangement and to the Non-MP Policies of such New PEO Clients,
or imposes conditions on such a proposed addition that are
unacceptable to the Employer in its sole discretion, the
exclusivity provisions of section 6(b)(iv) above shall not apply
and the Employer may contract with any other *** New PEO Clients on
such terms as it shall determine.
|
|
|
|
|
|
|
|
(iv)
|
|
A
Client once covered under the MP Arrangement may not be deemed a
New PEO Client or covered under any arrangement exclusively for New
PEO Clients.
|
Section 7: Disputes
and Indemnification
|
(a)
|
|
The
Employer agrees to indemnify and hold harmless the Company from any
and all liability, loss, damages, fines, penalties and costs,
including but not limited to, expenses and reasonable
attorneys’ fees, which the Company shall sustain arising out
of or in connection with (1) any gross negligence or material
breach of the Agreement on the part of the Employer, (2) any
determination by the Employer regarding the eligibility for
coverage under a Policy or a Non-MP Policy of an Employee or
Employee’s dependent, (3) any direction of the Employer
to the
|
|
|
|
Company, (4) the offering or
termination of the Policies or Non-MP Policies, or the manner of
the offering or termination of the Policies or Non-MP Policies, to
Clients, or (5) the release or use by Employer of any
information obtained from the Company pursuant to section 5(a),
unless the parties agree or it is determined in a final
non-appealable decision by a court or regulatory agency having
jurisdiction of the matter that the liability therefore was the
direct consequence of criminal conduct or fraud on the part of the
Company or negligence or a material breach of the Agreement on the
part of the Company.
|
|
|
|
|
|
(b)
|
|
The
Company agrees to indemnify and hold harmless the Employer and/or
the Plan from any and all liability, loss, damages, fines,
penalties and costs, including but not limited to, expenses and
reasonable attorneys’ fees, that the Employer or Plan shall
sustain arising out of or in connection with gross negligence or
material breach of the Agreement on the part of the Company or any
direction of the Company to the Employer, unless the parties agree
or it is determined in a final non-appealable decision by a court
or regulatory agency having jurisdiction of the matter that the
liability therefore was the direct consequence of criminal conduct
or fraud on the part of the Employer or negligence or a material
breach of the Agreement by the Employer. The Company shall not
indemnify or hold harmless the Employer or the Plan for any losses
arising out of Overpayments. If Health Benefits are required to be
paid pursuant to any judgment in favor of the plaintiff or a
settlement with the plaintiff or the order of a regulatory agency
having jurisdiction of the matter and such judgment or settlement
is final or payable during the term of the Agreement, any portion
of such judgment or settlement attributable to Health Benefits
shall be treated as a claim for Health Benefits at the time that
the judgment or settlement is fina
|
|
