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By and Between
TALISMAN CASUALTY INSURANCE COMPANY, LLC
A Nevada Sponsored Cell Captive Insurance Company
TALISMAN CASUALTY INSURANCE COMPANY, LLC, KENNEL PRO,
A Protected Cell of Talisman Casualty Insurance Company, LLC A Nevada Sponsored Cell Captive Insurance Company
_____________________________________(name of Participant)Participant in Talisman Casualty
Insurance Company, Kennel Pro
THIS PARTICIPATION Agreement (the “Agreement”) is made as of this _______
day of _____________, 2017
Talisman Casualty Insurance Company, LLC, a Nevada Sponsored Cell Captive Insurance Company (hereafter the “Company”) and Talisman Casualty Insurance Company, LLC Kennel Pro (the “Cell Insurer”), a Protected Cell of Talisman Casualty Insurance Company, LLC and ___________________________________( “Participant”).
This Agreement sets out the terms that have been agreed in respect of the participation in the Cell Insurer and the rights and responsibilities amongst the Company, the Cell Insurer and the Participant:
The Cell Insurer has been established to provide liability coverage (“Insurance”) to participants in pet care businesses located in the United States.
Participant wishes to purchase one Cell Insurer Share (the “Share”) for the participation related exclusively to the Cell Insurer pursuant to this Agreement andthe underlying insurance and subject to the terms of the Articles of Organization and Operating Agreement of the Company for a subscription price of $10.00 payable immediately on signature of this Agreement by Participant. In no event shall such subscription price be less than US$1.00. Further subscriptions of Share(s) in the designated Cell Insurer of the Company may be made on such terms as the parties may subsequently agree. Participant specifically agrees to obtain any necessary approvals for purchase and sale of the Cell Insurer Share, including any state or federal securities or other regulatory filings and/or approvals.
Participant will participate solely in the profits and losses of the Cell Insurer for insurance in accordance with this Agreement and subject to the documentation referenced above and not in any other Cell Insurer nor in “core cell” or any other property of the Company.
The directors of the Company may declare dividends on the Cell Insurer Share or Shares solely out of the net profits made by the Cell Insurer arising from the Insurance, which dividends will be calculated in accordance with the Dividends provision of Part 1 of the Schedule attached to and hereby made part of this Agreement by this reference. The holder of the Share will not be entitled to share in any profits of any other Cell Insurer of the Company or any other profits of the Company. No distribution, including dividend shall be made by the Company without the prior written consent of the Nevada Division of Insurance.
No Participant of any other Cell Insurer of the Company will be entitled to participate in any profits of the Cell Insurer by virtue of holding such shares in other cells, separate from this Cell.
The Company may redeem the Share in accordance with the Redemption provisions of Part 2 of the above-referenced Schedule to this Agreement.
On the first to occur of a winding up of the Cell Insurer or the Company, the assets of the Cell Insurer remaining will be distributed solely to the holder of the Share(s) in accordance with the Redemption provisions of Part 2 of the above-referenced Schedule to this Agreement. The holder of the Share will not be entitled to share in any other assets of the Company available for distribution or any assets of any other Cell Insurer of the Company.
The Share has not been registered in the United States and shall not be sold, transferred, hypothecated, pledged or otherwise encumbered and will bear the following legend:
The share represented by this certificate has not been registered under the Securities Act of 1933, as amended, of the United States (the "U.S Securities Act") or any securities laws of any state of the United States. It may not be offered or transferred by sale, assignment, pledge or otherwise unless (i) a registration statement for the share under the Securities Act is in effect or (ii) the Company has received such agreements and certificates as the Company may require and an opinion of counsel, which opinion is satisfactory to the Company, to the effect that such registration is not required under the Securities Act or State securities laws. Transfer of this share is further restricted as provided in this Participation Agreement between the Company and the Participant. In addition to the transfer restrictions above, the securities represented by this certificate may not be sold or otherwise transferred if such transfer would result in the Company being required to register as an investment company under the Investment Company Act of 1940, as amended, or result in a violation of any applicable securities law or other applicable law or regulation. Specifically, the share may not be transferred without compliance with the requirements of Nevada and Federal Law.
The Company, on behalf of the Cell Insurer and subject to the overall supervision and discretion of the Members of the Company, agrees to make such investments and divestments of assets of the Cell Insurer for the Participant as the Company in its sole discretion may decide. In acting on the instructions of Participant, neither the Company nor any of its directors, officers, members, managers or employees shall be liable for any loss, claim cost or expense suffered by the Cell Insurer and each of the Company and its directors, officers, members, managers and employees shall be indemnified and held harmless by Participant and the Cell Insurer for any loss, claim, cost or expense incurred by them in so acting, unless due to fraud, gross negligence, dishonesty or willful malfeasance of such directors, officers or employees. The Company shall be entitled to rely on a Participant’s instructions, approval and authorization without further inquiry if it shall have been given in writing or by facsimile (or by any person whom the Company reasonably believes to be a representative of Participant.). The Company may restrict and deny Cell Insurer investment instructions where instructions by Participant violate Nevada Law as to approve investments of premium and capital and surplus and collateral and expense allocation funds. Absent express written direction from Participant, the Company will endeavor to deposit Cell Insurer collateral, premium, capital, and surplus in bank account(s) on behalf of Cell Insurer.
Cell Insurer and its Participant shall be assessed and shall pay out of Cell Insurer proceeds its direct and proportionate share of expenses, including losses and proportionate and direct costs that are declared by the Company due from the Cell Insurer. The Company may pay expenses, losses, and other demands on behalf of the Cell Insurer, as the Company may in its sole discretion deem reasonable, without notice nor approval from the Cell Insurer. The Company, in its sole discretion and without approval nor notice shall deem the direct and proportionate share of expenses for the Cell Insurer.
The Company shall file on or before March 1st of each year, a report to the Commissioner of the Nevada Division of Insurance as to financial condition. This report will include, but not be limited to accounting statements detailing the financial experience of this Cell and any other information required by the Commissioner pursuant to Nevada law and regulation. The Company acknowledges that all financial records of the Company, including but not limited to records related to this Cell must be made available for inspection or examination by the Commissioner
Notwithstanding any other provision of this Agreement, Participant acknowledges and agrees that no liability shall arise under this Agreement for any reason against the Company, nor any other cell of the Company (other than the Cell Insurer identified above that is party to this Participation Agreement) and their respective officers, directors, participants, member, managers, employees, and their attorneys and agents (the “Limited Liability Parties”), unless due to fraud, gross negligence, dishonesty or wilful malfeasance of such entities or persons.
Notwithstanding any other provision of this Agreement, Participant further acknowledges and agrees that all liability under this Agreement shall be limited to the net proceeds of the realization of all the assets of the Cell Insurer only, in which case liability shall be limited only to proved damages, unless due to fraud, gross negligence, dishonesty or wilful malfeasance on the part of any or all of the Parties. If such amount is insufficient to pay all the obligations hereunder in full for any reason, neither the Cell Insurer or any of the Parties shall have any obligation to make up the insufficiency, and following exhaustion of such amount, any liability to pay such insufficiency shall thereafter be extinguished, unless due to fraud, gross negligence, dishonesty or wilful malfeasance of any or all of the Parties.
Notwithstanding any other provision of this Agreement, Participant covenants, acknowledges and agrees that it shall not take or seek to take any recourse (including, but not limited to, action before any court or governmental agency), directly or indirectly, with respect to the actions or inactions of the Cell Insurer or the Company or any obligations of the Cell Insurer or the Company or under this Agreement against:
Participant further covenants, acknowledges and agrees that it shall not take any corporate action or other steps or legal proceedings for the winding-up, dissolution or re- organization or for the appointment of a receiver, administrator, administrative receiver, trustee, liquidator, sequestrator or similar officer of the Company or the Cell Insurer or of any or all of the Company or the Cell Insurer revenues and assets or analogous proceedings in any jurisdiction domestic or foreign, unless due to fraud, gross negligence, dishonesty or wilful malfeasance.
Participant agrees to indemnify and hold harmless the Company and their respective officers, directors, participants, members, managers, employees, and their attorneys, affiliates and agents ("Indemnified Persons"), and hold each of them harmless from and against any error of judgment, and any and all loss, damage, claims, demands, or proceedings, liability or expense, including costs and reasonable attorneys' fees and expenses (together “Losses”), to which any Indemnified Person may be put or may incur by reason of or in connection with any misrepresentation made by Participant, any breach of Participant’s representations and warranties Participant’s failure to fulfil any of its covenants or agreements under this Agreement or any Losses suffered or sustained by an Indemnified Person by reason of such person’s status as an Indemnified Person other than Losses which arise out of or relate to fraud, gross negligence, dishonesty or wilful malfeasance of such Indemnified Person.
Participant undertakes and represents and warrants to the Company that:
(a) it has had its own opportunity to investigate its participation and the terms and conditions of its participation and to obtain such legal, tax, accounting and other professional advice as it considers proper or appropriate and that it is not relying on any advice, representation or warranty from the Company, and specifically that it is aware of the provisions of the Nevada Law which relate to captive insurance companies, and specifically sponsored cell companies;
(a) it has the legal capacity and authority and is permitted by applicable law to execute and deliver this Agreement;
(a) it is not (i) a U.S. person from whom an investment would not qualify for an exemption under the U.S. Securities Act of 1933 or would require the Company to register this Agreement under the U.S. federal or state securities laws or causes the Company to become subject to the United States Investment Company Act of 1940; or (ii) a person in circumstances (whether directly or indirectly affecting the Participant and whether taken alone or in conjunction with any other person, connected or not, or any other circumstance appearing to the Company to be relevant) which in the opinion of the Company might result in the Company incurring any liability to taxation or suffering any other pecuniary, fiscal or regulatory disadvantage which the Company might not otherwise incur or suffer;
(a) all consents required to be obtained and all legal requirements necessary to be complied with or observed in order for this Agreement or the participation to be lawful and valid under the laws, rules or regulations of any jurisdiction to which Participant is subject, have been obtained, complied with and observed;
(a) it will notify the Company immediately if it becomes aware that any of these undertakings, representations and warranties is no longer accurate and complete;
(a) its participation will not breach any applicable money laundering rules and regulations of any jurisdiction and that it has provided accurate verification of its identity;
(a) it acknowledges and agrees that Cell Insurer is obligated to pay the Company fees in relation to the administrative services provided by the Company and service providers, such as actuaries, accountants, attorneys, bankers, managers, and administrators to the Cell Insurer and that the Cell Insurer is to indemnify and hold harmless the Company in respect of any loss, claim or cost it may incur in the performance of its administrative services.
This Agreement will terminate when both the Company and the Cell Insurer have no further liabilities or obligations under or in respect of the Insurance. On termination of this Agreement, the Company shall redeem the Share held by Participant for an amount calculated in accordance with the Redemption provision set out in Part 2 of the above- referenced Schedule.
Each party's further rights and obligations cease immediately on termination of this Agreement, but termination does not affect a party's accrued rights and obligations at the date of termination. Participant's sole right to any payment on termination will be the amount, if any, calculated in accordance with the Redemption provision set out in Part 2 of the above-referenced Schedule.
For the purposes of this Agreement, “Confidential Information” means all information disclosed (whether in writing or orally) by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) whether before or after the date of this Agreement, including, without limitation, information relating to the Disclosing Party's products, operations, processes, plans or intentions, product information, know-how, market opportunities and business affairs.
Except as required by the laws of any relevant jurisdiction or by the requirements of its regulators during the term of this Agreement and after termination or expiration of this Agreement for any reason, the Receiving Party (a) may not use Confidential Information for a purpose other than the performance of its obligations under this Agreement and (b) may not disclose Confidential Information to a person (other than the employees, officers, directors, auditors, attorneys and other duly authorized agents of the Receiving Party) except with the prior written consent of the Disclosing Party. Notwithstanding the foregoing, either party may use Confidential Information (i) in the course of prosecuting or defending any claim or cause of action in any proceedings of any nature whatsoever, including a threatened proceeding and in the event such records are sought by legal process in connection with a legal proceeding; (ii) in making any filings with or statements to any governmental agency of any nature whatsoever; (iii) to the extent either party in its sole discretion determines disclosure of Confidential Information may be required by or advisable under applicable law, rule, regulation, order, contract or agreement; (iv) in communicating with the respective parties, Participants, prospective Participants and creditors; and (v) as the parties deem reasonably necessary, or prudent, in their sole discretion, in connection with the operation or management of their respective businesses.
This restriction does not apply to Confidential Information which (a) at the date of this Agreement, or at any time after that date, becomes publicly known other than by the Receiving Party's breach of this Agreement; (b) was known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party, or (c) the disclosure of any Confidential Information in any legal proceedings relating to this Agreement.
No party to this Agreement may assign or transfer or subcontract or purport to assign or transfer or subcontract any right or obligation under this Agreement without having first obtained the written consent the Company. Any proposed Assignment may also require regulatory approval.
A notice under or in connection with this Agreement shall be in writing and shall be delivered personally or sent by fax, as follows:
If to the Company or the Cell Insurer, to:
Talisman Casualty Insurance Company, LLC and Talisman Casualty Insurance Company, LLC
9075 West Diablo Drive Las Vegas, NV 89148
If to Participant, to: Name
Street Address City/state/zip
or to another person, address, email address, or fax number previously specified by a party by written notice to the other.
In the absence of evidence of earlier receipt, a notice is deemed given, if delivered personally, when left at the address referred to above, or, if sent by email or fax, on confirmation of receipt.
This Agreement shall not be amended nor shall any provision of this Agreement be considered modified or waived unless evidenced in writing signed by Participant and the Company on its own behalf and on behalf of the Cell Insurer.
Participant shall have no authority to bind, obligate or represent the Company or the Cell Insurer in any respect. All Insurance contemplated by this Agreement shall not be effectuated without express written approval of the Company.
A failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
Participant shall be responsible for all its own costs relating to the negotiation, preparation, execution and implementation of this Agreement and of each document referred to in it.
This Agreement constitutes the entire agreement between the parties as to the subject matter of this Agreement, and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.
This Agreement may be executed in any number of counterparts, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.
This Agreement and all matters arising out of or in connection with it shall be governed by and interpreted in accordance with the laws of Nevada and the parties to it irrevocably submit to the exclusive jurisdiction of the state courts of Nevada in respect of all such matters.
SIGNED FOR AND ON BEHALF OF TALISMAN CASUALTY INSURANCE COMPANY, LLC AS OF THE DATE FIRST ABOVE WRITTEN.
Title: Manager & Director
Name: Name of Witness, Printed or Typed
SIGNED FOR AND ON BEHALF OF TALISMAN CASUALTY INSURANCE COMPANY, LLC, KENNEL PRO AS OF THE DATE FIRST ABOVE WRITTEN.
By: Name of Signatory
SIGNED FOR AND ON BEHALF OF PARTICIPANT OF TALISMAN CASUALTY INSURANCE COMPANY, LLC, KENNEL PRO AS OF THE DATE FIRST ABOVE WRITTEN.
By: Name of Signatory - Please Sign Here
REMAINDER OF THIS PAGE INTENTIONALLY BLANK
SCHEDULES: DIVIDEND & REDEMPTION POLICY
Part 1 Dividends
Dividends can be requested at any time at the request of the Company to the Nevada Division of Insurance, out of the available net profits of the Cell Insurer, subject to any expenses due and any constraints imposed upon the Cell Insurer by the Nevada Division of Insurance (“NVDOI”), a division of the Nevada Department of Business & Industry. Profits are defined as the excess of insurance and investment income over the insurance losses and administrative expenses of the Cell Insurer, as calculated in accordance with United States generally accepted accounting principles.
It is anticipated that no dividends will be declared during the first eighteen (18) months of operation of the Cell Insurer, and this will be incorporated into the request for approval for the Cell Insurer as presented to NVDOI.
Part 2 Redemption
The consideration for the redemption of the share or shares for the Cell shall be the distribution to the holder of the assets of the Cell Insurer remaining available for distribution at the date of redemption divided by the number of Shares being redeemed. In the event that there is more than one holder of Shares, the assets will be distributed pro rata to the holders of the Shares.