EXHIBIT 99.2 AMENDED AND RESTATED MASSACHUSETTS PERSONAL AUTOMOBILE GROUP MARKETING AGREEMENT

 

Exhibit 99.2

 

AMENDED AND RESTATED MASSACHUSETTS

PERSONAL AUTOMOBILE GROUP MARKETING AGREEMENT

 

This Agreement (“Agreement”) is by and among The Commerce Insurance Company, Citation Insurance Company, 211 Main Street, Webster, Massachusetts (hereinafter referred to collectively as “Commerce”), AAA Southern New England, 110 Royal Little Drive, Providence, Rhode Island 02904 (“AAA SNE”) and AAA Insurance Agency, Inc., a Massachusetts corporation, c/o 110 Royal Little Drive, Providence, Rhode Island 02904 (the “Agency”).

 

RECITALS

WHEREAS, Commerce currently is the exclusive insurance company to offer and underwrite a group marketing program whereby private passenger automobile insurance is offered to eligible AAA SNE members in the Operating Territory of AAA SNE.

 

WHEREAS, AAA SNE previously has granted Commerce the exclusive right to use the AAA Emblem in AAA SNE’s Operating Territory in connection with the group marketing program and Commerce has served as the exclusive underwriter of such group marketing program.

 

WHEREAS, Commerce, the Agency and AAA SNE desire to enter into respective longer-term agreements for such purposes.

 

WHEREAS, as of the effective date of this Agreement, the parties agree to amend and restate herein the respective rights, duties, and obligations of the parties pursuant to the Massachusetts Personal Automobile Group Marketing Agreement dated June 9, 1995.

NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, IT IS AGREED AS FOLLOWS:

For purposes of this Agreement, the following terms shall have the meanings indicated.

 

“AAA Emblem” shall mean the “Emblem” as such term is defined in the Regulations Governing the Use of the Emblem and Other Trademarks of the American Automobile Association, Inc. adopted July 8, 1992, as the same may be amended from time to time.

 

“AAA Group Marketing Program” shall mean a group marketing plan whereby private passenger automobile insurance is offered to eligible AAA SNE members in AAA SNE’s Operating Territory.

 

“Agent” shall mean any independent agent, insurance producer, or broker who has entered into an agreement with Commerce to solicit or produce applications for private passenger automobile insurance on behalf of Commerce and shall also mean any independent agent, insurance producer, or broker assigned by a residual market mechanism, including without limitation, Commonwealth Automobile Reinsurers or its successor entity, to represent Commerce in connection with the sale of private passenger automobile insurance.

 

“Operating Territory” shall mean the current and future territorial jurisdiction in the Commonwealth of Massachusetts in which AAA SNE or any parent, subsidiary, or affiliate of AAA SNE, or a successor of any of them, does business or is licensed, as set forth in AAA SNE’s Certificate of Membership issued by the American Automobile Association, Inc.

 

“Participating Agent” shall mean any Agent within the Operating Territory who has entered into a participation agreement with the Agency to place business in the AAA Group Marketing Program.

 

ARTICLE II - EXCLUSIVE UNDERWRITER OF GROUP MARKETING PROGRAM

 

AAA SNE and the Agency shall promote Commerce as, and Commerce shall be, the exclusive underwriter of the AAA Group Marketing Program in the Operating Territory for a period of twenty (20) years commencing on January 1, 2007 and concluding on December 31, 2026 (the “Initial Term”). This exclusive underwriting agreement shall be automatically extended beyond the Initial Term for an extended term of five (5) additional years commencing on January 1, 2027 and concluding on December 31, 2031 (the “First Extended Term”), unless AAA SNE or the Agency, on the one hand, or Commerce, on the other hand, advises the other in writing during the period commencing on January 1, 2021 and concluding on December 31, 2021 of its desire not to extend this exclusive underwriting agreement for such First Extended Term. The term of this exclusive underwriting agreement shall subsequently be extended on a “rolling” basis for successive five (5) year periods (each a “Subsequent Extended Term”), whereby this exclusive underwriting agreement shall be extended for five (5) years, unless AAA SNE or the Agency, on the one hand, or Commerce, on the other hand, advises the other in writing commencing in 2026 and thereafter during the fifth year of any such Subsequent Extended Term of its desire not to extend this exclusive underwriting agreement for an additional Subsequent Extended Term (in which event the term of this Agreement will expire four (4) years after the conclusion of the Subsequent Extended Term). Throughout the term of this Agreement, AAA SNE and the Agency shall not offer or permit any other entity, including without limitation any parent, subsidiary, or affiliate of AAA SNE or the Agency, or any successor of any of them, to offer a AAA Group Marketing Program in the Operating Territory.

Throughout the term of this Agreement, AAA SNE and the Agency shall actively promote the AAA Group Marketing Program to eligible and prospective members of the AAA Group Marketing Program.

 

AAA SNE and the Agency understand, acknowledge, and agree that Commerce shall be permitted to underwrite private passenger group marketing programs for other AAA clubs in the Operating Territory or otherwise, on such terms and conditions as may be determined by Commerce in its sole discretion.

 

ARTICLE III - RIGHT TO USE AAA EMBLEM

 

During the term of this Agreement, AAA SNE grants Commerce the exclusive right to use and display the AAA Emblem in the Operating Territory for purposes of automobile insurance sales, marketing, advertising, underwriting, processing, claim adjustment, and any other related purpose. Commerce is authorized to use and display the AAA Emblem on insurance policy forms, endorsements, declarations pages, invoices, envelopes, letterhead, instruction manuals, advertising and promotional materials, and any other written or electronic materials (“Materials”) as long as Commerce clearly identifies itself as the source of the Materials displaying the AAA Emblem. AAA SNE warrants and represents that it is authorized to grant permission to Commerce to use the AAA Emblem in this manner. Except as provided herein, AAA SNE shall not grant the right to any other person or entity, including without limitation, any parent, subsidiary, or affiliate of AAA SNE or the Agency, or any successor of any of them, to use the AAA Emblem in the Operating Territory during the term of this Agreement, for purposes of automobile insurance sales, marketing, advertising, underwriting, processing, claim adjustment, or any related purposes.

 

The AAA Emblem is the property of the American Automobile Association, Inc. and, upon expiration or termination of this Agreement, Commerce agrees to discontinue immediately the use of the AAA Emblem in any manner whatsoever. During the term of this Agreement, Commerce shall use the AAA Emblem only in conformance with the rules and regulations with respect to the use of the AAA Emblem promulgated by the American Automobile Association, Inc. from time to time. It is expressly agreed that the American Automobile Association, Inc. retains full ownership of the AAA Emblem and registration thereof. This paragraph survives any termination or expiration of this Agreement.

 

For purposes of this Article III, “Prohibited Conduct” shall mean any conduct by Commerce as a corporate entity that AAA SNE reasonably determines, based on the facts known to it at the time and notwithstanding any later judicial or regulatory decision to the contrary, is unlawful or criminal. If AAA SNE reasonably determines that on account of the Prohibited Conduct, Commerce’s continued use of the AAA Emblem or any related logos, trademarks, or Materials jeopardizes the favorable standing, reputation, or relationship of AAA SNE or any of its parents, subsidiaries or affiliates with its or their government regulators, members or customers, AAA SNE shall notify Commerce in writing, and Commerce shall cure the Prohibited Conduct within seven (7) business days of receipt of such notice (the “Cure Period”). Commerce’s failure to cure the Prohibited Conduct to AAA SNE’s reasonable satisfaction within the Cure Period shall entitle AAA SNE to suspend, until the Prohibited Conduct is cured to AAA SNE’s reasonable satisfaction, Commerce’s right to use the AAA Emblem or any related logos, trademarks or Materials. AAA SNE shall reinstate Commerce’s rights to use the AAA Emblem or any related logos, trademarks or Materials promptly after Commerce has cured the Prohibited Conduct.

 

 

 

Commerce agrees to obtain AAA SNE’s specific written approval prior to Commerce’s first and novel intended use and display of the AAA Emblem or any related logo or trademark. AAA SNE shall be deemed to have granted such approval unless AAA SNE sends a written notice of nonapproval to Commerce within thirty (30) days of AAA SNE’s receipt of a written notice from Commerce seeking such approval. AAA SNE shall not unreasonably withhold approval of any use or display by Commerce of the AAA Emblem or any related logo or trademark.

 

Commerce shall, in its sole discretion, determine which Agents (other than the Agency) shall be eligible to serve as Participating Agents in the AAA Group Marketing Program. Agents selected to participate in the servicing of the AAA Group Marketing Program shall not be permitted to advertise or market the AAA Group Marketing Program, except as authorized in writing by Commerce.

 

Commerce shall file for approval, pursuant to applicable law or regulation, to offer an appropriate rate modification (discount) to eligible AAA SNE members of the AAA Group Marketing Program. At all times during the term of this Agreement, AAA SNE and Agency shall cooperate with and assist Commerce and take all actions reasonably requested by Commerce in support of Commerce’s filing with, and efforts to obtain from, the Massachusetts Division of Insurance approval of group discounts on private passenger automobile insurance for AAA SNE members within the meaning of Massachusetts General Law ch. 175, §193R or any successor law or regulation. Such cooperation and assistance shall include, without limitation, AAA SNE and/or Agency providing to Commerce relevant data, records, or information as may be requested or required by Commerce or the Massachusetts Division of Insurance to assist Commerce in its efforts to obtain such group discounts.

 

***

 

*** Information omitted pursuant to a request for confidential treatment. Omitted information has been filed seperately with the Securities and Exchange Comission.

 

ARTICLE VI - COMMISSIONS

Commissions and other compensation on business produced by the Agency and placed in the AAA Group Marketing Program shall be determined in accordance with the terms and conditions of the Agency Agreement between Commerce and the Agency dated January 1, 2004 as amended from time to time (the “Agency Agreement”). The Agency shall also receive an override bonus of *** on private passenger automobile business produced by Agency and placed in the AAA Group Marketing Program, to be established by Commerce on an annual basis. Agency shall pay, in accordance with the terms and conditions of the Services Agreement between Commerce and Agency, dated August 11, 1995 as amended from time to time (the “Services Agreement”), a reasonable service fee to Commerce, as established annually by Commerce, on all AAA Group Marketing Program business written by Participating Agents.

 

The Agency shall also receive an override bonus of *** on private passenger automobile business produced by Participating Agents, other than Agency, and placed in the AAA Group Marketing Program, to be established by Commerce on an annual basis. In the event of termination or expiration of this Agreement, Agency shall be entitled to the commissions and other compensation set forth herein earned up through and including the effective date of termination or expiration of this Agreement.

 

ARTICLE VII - EXCLUSIVITY

 

During each year that the Commissioner of Insurance fixes and establishes premium charges for private passenger automobile insurance, pursuant to Massachusetts General Laws c. 175, §113B or any successor law or regulation, the Agency shall, within the Operating Territory, exclusively sell and market Commerce’s private passenger automobile insurance products to AAA SNE members, its other customers, and to the general public, and the Agency shall not sell or market to any person or entity the private passenger automobile insurance products of any person or entity other than Commerce. ***

 

*** Information omitted pursuant to a request for confidential treatment. Omitted information has been filed seperately with the Securities and Exchange Comission.

 

 

ARTICLE VIII - PROFIT SHARING

The Agency shall be entitled to profit sharing commissions on business produced directly by the Agency in accordance with the terms and conditions of the Profit Sharing Agreement dated January 1, 2004 between Commerce and the Agency as amended from time to time (the “Profit Sharing Agreement”), which Profit Sharing Agreement shall at no time contain terms and conditions less favorable than those contained in the standard Profit Sharing Agreement between Commerce and its other independent agents.

 

In accordance with the terms and conditions of Schedule A, the Agency shall also be eligible to receive profit sharing commissions on business produced by Participating Agents, other than the Agency, and placed in the AAA Group Marketing Program. In the event of termination or expiration of this Agreement, Agency shall be entitled to the commissions and other compensation set forth herein earned up through and including the ef