<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): March 23, 1998
PROVIDENT AMERICAN CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Pennsylvania 0-13591 23-2214195
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(State or other jurisdiction of (Commission File Number) (I.R.S. Employer Identification No.)
incorporation)
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2500 DeKalb Pike, Norristown, Pennsylvania 19404
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(Address of principal executive offices/Zip Code)
Former name, former address, and former fiscal year,
if changed since last report: N/A
<PAGE>
EXPLANATORY NOTE
On March 27, 1998 the Company filed a current report on Form 8-K under
Item 5 regarding the Company's subsidiary, Provident Health Services, Inc.
entering into an Interactive Marketing Agreement with America Online, Inc. The
purpose of this 8-K/A is to file the Interactive Marketing Agreement.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1. Interactive Marketing Agreement between Provident
American Corporation's wholly-owned subsidiary,
Provident Health Services, Inc. and American Online,
Inc., dated March 20, 1998.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PROVIDENT AMERICAN CORPORATION
By: /s/ Benedict J. Iacovetti
------------------------------------
Benedict J. Iacovetti
Chief Financial Officer
June 8, 1998
<PAGE>
Confidential
AMENDED AND RESTATED INTERACTIVE MARKETING AGREEMENT
This Amended and Restated Interactive Marketing Agreement (this
"Agreement"), dated as of February 1, 1998 (the "Effective Date"), is between
America Online, Inc. ("AOL"), a Delaware corporation, with offices at 22000 AOL
Way, Dulles, Virginia 20166, and Provident Health Services, Inc. ("Marketing
Partner" or "MP"), a Pennsylvania corporation, with offices at 2500 DeKalb Pike,
Norristown, Pennsylvania 19404-0511. AOL and MP may be referred to individually
as a "Party" and collectively as "Parties."
RECITALS
The Parties entered into an Interactive Marketing Agreement dated as of
February 1, 1998 (the "Original Agreement"). The Parties desire to amend and
restate the Original Agreement to reflect their agreement with respect to the
exercise price of the Warrant (defined in Section 6). Upon execution and
delivery of this Agreement by the Parties, this Agreement shall replace the
Original Agreement and the Original Agreement shall be null and void and of no
further force and effect. The Parties also desire to amend and restate the
Common Stock Warrant Agreement (defined in Section 6) with respect to the
exercise price of the Warrant. Upon execution and delivery of the amended and
restated Common Stock Warrant Agreement by the Parties, the amended and restated
Common Stock Warrant Agreement shall replace the original Common Stock Warrant
Agreement and the original Common Stock Warrant Agreement shall be null and void
and of no further force and effect.
BACKGROUND
AOL and MP each desires to enter into a relationship whereby AOL will
advertise and distribute an interactive site referred to (and further defined)
herein as the Affiliated MP Site. This relationship is further described below
and is subject to the terms and conditions set forth in this Agreement. Defined
terms used but not defined in the body of this Agreement will be as defined on
Exhibit B attached hereto.
In consideration of the premises, mutual covenants and agreements
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally bound
hereby, agree as follows:
<PAGE>
TERMS
1. ADVERTISING AND DISTRIBUTION.
1.1. AOL Advertising of Affiliated MP Site. AOL will provide MP
with the advertising placements for the Affiliated MP Site
(the "Placements") in areas of the AOL Network to be
determined by AOL in its reasonable discretion and described
on the carriage plan attached hereto as Exhibit A. AOL will
have the right to fulfill its advertising commitments with
respect to any of the foregoing by providing to MP comparable
advertising placements in appropriate alternative areas of the
AOL Network. In addition, if AOL is unable to deliver any
particular Placement, AOL will provide MP, as its sole remedy,
a comparable advertising placement. The nature, timing and
location of the Placements shall be reasonably consistent with
the carriage plan attached hereto as Exhibit A and/or the
goals of the marketing plan submitted by MP pursuant to
Section 1.5 as determined by AOL in its reasonable editorial
discretion. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other
elements of the AOL Network at any time. In the event such
modifications materially and adversely affect any specific
Placement, AOL will provide MP, as its sole remedy, a
comparable advertising placement. As used herein, a
"comparable advertising placement" shall mean an advertising
placement in an alternative area determined by AOL in its
reasonable editorial discretion to be reasonably consistent
with the carriage plan attached hereto as Exhibit A and/or the
goals of the marketing plan submitted by MP pursuant to
Section 1.5. AOL will also provide MP with the keywords
"Provident" and "Insurion" (if it becomes a trademark or
tradename of MP) and any other keywords mutually agreed upon
by the Parties, subject to the applicable provisions of
Exhibit F.
<PAGE>
1.2. Impressions. With respect to any Impressions commitment
specified on Exhibit A, AOL will not be obligated to provide
in excess of any of such commitment amounts in any year. Any
shortfall in delivered Impressions at the end of a year will
not be deemed a breach of this Agreement by AOL; such
shortfall will be added to the Impressions commitment for the
subsequent year. In the event there is a shortfall in
delivered Impressions as of the end of the Term (a "Final
Shortfall"), AOL will provide MP, as its sole remedy, with
either (i) continued carriage of advertising placements on the
AOL Network in accordance with Section 1.1 for up to six (6)
months or (ii) credits for the purchase of advertising on the
AOL Network which have a total value equal to the value of the
Final Shortfall [ *** ] which credits may be redeemed for
advertising, valued in accordance with AOL's then-current
advertising rate card, subject to availability and AOL's
then-current advertising policies, over a [ *** ] year period.
In the event AOL provides an excess of Impressions in any
year, the Impressions commitment for the subsequent year will
be reduced by the amount of such excess; provided, however,
that such reduction [ *** ] of the Impressions commitment for
such subsequent year; provided, further, that any excess not
applied to the subsequent year shall be carried forward to
reduce the Impressions commitment for succeeding years to the
extent permitted pursuant to this sentence.
In the event that at any point during the Initial Term,
cumulative Site Revenues exceed [ *** ] AOL's entire
Impressions commitment for the remainder of the Initial Term
will be deemed satisfied. In the event that Site Revenues
during any year of the Renewal Term (if applicable) exceed
[ *** ] AOL's Impressions commitment for the remainder of such
year will be deemed satisfied. In the event that at any point
during the Term, cumulative Site Revenues exceed [ *** ] AOL's
entire Impressions commitment for the remainder of the Term
will be deemed satisfied. Notwithstanding the foregoing,
during any period in which AOL's Impressions commitment is
deemed satisfied, MP [ *** ] for such period.
1.3 Content of Placements. The Placements will link only to the
Affiliated MP Site and will advertise solely (i) the Exclusive
Products (as defined below) and/or (ii) long-term disability
insurance subject to the terms of Section 2.1.1. The specific
MP Content to be contained within the Placements (including,
without limitation, advertising banners and contextual
promotions) (the "Placement Content") will be determined by
MP, subject to AOL's technical limitations, the terms of this
Agreement and AOL's then-applicable policies relating to
advertising and promotions. MP will consistently update the
Placement Content no less than twice per month, and MP shall
use reasonable efforts to see that the Placement Content is
designed to maximize performance. MP will promptly replace any
Placement Content that is falling below click-through targets
with fresh Content. Except to the extent expressly described
herein, the specific form, placement, duration and nature of
the Placements will be as determined by AOL in its reasonable
editorial discretion (consistent with the editorial
composition of the applicable screens and the provisions of
Section 1.1). Notwithstanding anything herein to the contrary,
if regulatory restrictions related to the insurance industry
affect the nature and/or timing of the availability of the
Placement Content, MP shall not be deemed to be in default of
this Agreement provided that (i) MP shall promptly notify AOL
of such affect and MP shall use diligent efforts to comply
with the terms of this Section 1.3.
1.4. MP Promotion of Affiliated MP Site and AOL. As set forth more
fully in Exhibit C, MP will promote AOL as its preferred
Interactive Service and will promote the availability of the
Affiliated MP Site through the AOL Network. Notwithstanding
anything herein to the contrary, MP may advertise, promote or
distribute MP Interactive Sites through other Interactive
Services, including, without limitation, Internet search
engines such as Yahoo, Excite and Lycos, provided MP complies
with the promotional restrictions set forth in Exhibit C.
<PAGE>
1.5. Marketing Plan; Operations Review. As soon as reasonably
practicable, but in no event more than thirty (30) days, after
execution of this Agreement, MP shall provide AOL with a
marketing plan with respect to the Affiliated MP Site and,
thereafter, MP will submit in advance to AOL for its review a
quarterly online marketing plan with respect to the Affiliated
MP Site, which marketing plans shall include click-through
targets. Reasonably promptly after the execution of this
Agreement, AOL will provide MP with contact information with
the appropriate AOL representatives for purposes of
administering this Agreement. The Parties will meet in person
or by telephone within thirty (30) days after the execution of
this Agreement and, thereafter, at least monthly to review
operations and performance hereunder.
1.6. CompuServe Negotiations. So long as MP is negotiating in good
faith with AOL, as reasonably determined by AOL, regarding
arrangements for advertising and distribution of the
Affiliated MP Site over the [ *** ] AOL will not, prior to
[ *** ] enter into (i) an exclusive arrangement or (ii)
[ *** ] in either case with a provider of the Exclusive
Products to advertise the Exclusive Products over the [ *** ]
subject to the exceptions to exclusivity contained in Section
3. The [ *** ] shall mean the standard, narrow band U.S.
version of the [ *** ] service specifically excluding (a) any
international versions of such service, (b) any web-based
service including [ ***] and [ *** ] or any similar product or
service offered by or through the U.S. version of the [ *** ]
service, (c) Content areas owned, maintained or controlled by
[ *** ] or any similar "sub-service," (d) any programming or
Content area offered by or through the U.S. version of the
[ *** ] brand service over which [ *** ] does not exercise
complete or substantially complete operational control (e.g.,
third-party Content areas), (e) any yellow pages, white pages,
classifieds or other search, directory or review services or
Content and (f) any co-branded or private label branded
version of the U.S. version of the [ *** ] service, (g) any
version of the U.S. version of the [ *** ] service which
offers Content, distribution, services and/or functionality
materially different from the Content, distribution, services
and/or functionality associated with the standard, narrow-band
U.S. version of the [ *** ] service, including, without
limitation, any version of such service distributed through
any platform or device other than a desktop personal computer
and (h) any property, feature, product or service which
[ *** ] or its affiliates may acquire subsequent to the
Effective Date.
1.7. [*** ] Rentals. [ *** ]
1.8. Customer Data. MP shall provide AOL with all customer
information, data, profiles and records generated from the AOL
Network or AOL Purchasers ("Customer Data") to the extent not
prohibited by applicable laws, rules or regulations. AOL will
not disclose to third parties any individual user information
provided to AOL by MP except as part of aggregated data. MP
shall use Customer Data only for purposes of marketing the
Exclusive Products, subject to the terms of this Agreement.
1.9. AOL Restrictions. Notwithstanding anything herein to the
contrary, AOL's sole function with respect to the marketing
and commerce to be conducted through the Affiliated MP Site
and to AOL Purchasers pursuant to this Agreement shall be
limited to distributing the Affiliated MP Site and providing
the Placements as described herein. AOL shall not be involved
in any way in the transaction of insurance or in any activity
comprising the transaction of insurance, including without
limitation, solicitation, negotiations preliminary to
execution of a contract of insurance, execution of a contract
of insurance or transaction of matters subsequent to the
execution of a contract of insurance and arising out of it.
<PAGE>
2. AFFILIATED MP SITE.
2.1. Content.
2.1.1. Content. MP will make available through the
Affiliated MP Site the comprehensive offering of
Products and other related Content described on
Exhibit D. Except as mutually agreed in writing by
the Parties, the Affiliated MP Site will contain only
Content that is directly related to the MP Products
listed on Exhibit D and will not contain any
third-party products, services, programming or other
Content (except to the extent the Products and/or
Content described on Exhibit D are third party
products subject to Co-Sponsorship arrangements).
Notwithstanding the foregoing, (i) the Affiliated MP
Site and the Placement Content may contain promotions
for long-term disability insurance, provided such
insurance is offered solely in connection with the
Exclusive Products and MP does not act as an
aggregator of long-term disability insurance Products
(i.e., MP does not aggregate rate quotations from a
variety of carriers and/or provide application
services so as to allow users to search among, or
apply for insurance from, competing coverages and
companies); and (ii) the Affiliated MP Site may
contain promotions for life insurance and accidental
death and dismemberment insurance, provided such
insurance (a) is offered solely in connection with
the Exclusive Products, (b) is not marketed,
promoted, advertised, or otherwise referred to in the
Placements or the Placement Content, and (c) is not
marketed, promoted advertised or otherwise referred
to on the main screen of the Affiliated MP Site or
any other screen linked directly from any
advertisement, promotion, site or area within the AOL
Network.
2.1.2. Sales Format. All sales of Products through the
Affiliated MP Site will be conducted through a direct
sales format; MP will not promote, sell, offer or
otherwise distribute any Products through the
Affiliated MP Site using any format other than a
direct sales format (e.g., through auctions or clubs)
without the prior written consent of AOL.
Notwithstanding the foregoing, MP shall not be
precluded from (i) offering, promoting or selling
Products on the Affiliated MP Site through an agent
(provided such method is presented as an option to
direct sales and such option is selected by the AOL
Purchaser) or (ii) offering, promoting or selling
third party products on the Affiliated MP Site which
are subject to Co-Sponsorship arrangements.
2.1.3. Content Management. MP will review, delete, edit,
create, update and otherwise manage all Content
available on or through the Affiliated MP Site in
accordance with the terms of this Agreement. MP will
ensure that the Affiliated MP Site does not in any
respect promote, advertise, market or distribute the
products, services or content of any other
Interactive Service.
<PAGE>
2.2. Launch; Production Work. MP will create and customize the
Affiliated MP Site in accordance with this Agreement as a
mirrored, co-branded site with continuous navigational ability
for AOL Members to return to an agreed-upon point on the AOL
Service from the Affiliated MP Site. MP shall achieve Launch
by no later than October 1, 1998 (the "Launch Date"). Within
thirty (30) days after the execution of this Agreement, the
Parties shall agree on a mutually satisfactory deliverables
schedule with respect to the creation of the Affiliated MP
Site, including dates for the delivery of (i) preliminary
specifications, (ii) first round of specifications and (iii)
final specifications and plans for beta testing of the
Affiliated MP Site. Each deliverable shall be submitted to AOL
for AOL's review and comment. MP shall incorporate AOL's
comments, which shall be commercially reasonable,
technologically feasible and provided in a timely fashion,
into such deliverables. AOL agrees not to unreasonably
withhold its approval of any such deliverables, provided they
comply with AOL's standard technical and performance
requirements and the terms of this Agreement. MP shall make
available sufficient staffing for the maintenance of the
Affiliated MP Site at all times. Except as agreed to in
writing by the Parties pursuant to the "Production Work"
section of the Standard Online Terms & Conditions attached
hereto as Exhibit F, MP will be responsible for all production
work associated with the Affiliated MP Site, including all
related costs and expenses.
2.3. Hosting; Communications. MP will be responsible for all
communications, hosting and connectivity costs and expenses
associated with the Affiliated MP Site. In addition, MP will
provide all computers, routers, switches, telephones and other
equipment or resources necessary for MP to access the AOL
Network. MP will bear responsibility for the implementation,
management and cost of creating a custom version of the
Affiliated MP Site in order to comply with the terms of this
Agreement. MP will utilize a dedicated high speed connection
to maintain quick and reliable transport of information to and
from the MP data center and AOL's designated data center.
2.4. Technology. MP will take all reasonable steps necessary to
conform its promotion and sale of Products through the
Affiliated MP Site to the then-existing technologies
identified by AOL which are optimized for the AOL Service. AOL
will be entitled to require reasonable changes to the Content
(including, without limitation, the features or functionality)
within any linked pages of the Affiliated MP Site to the
extent such Content will, in AOL's good faith judgment,
adversely affect any operational aspect of the AOL Network.
AOL reserves the right to review and test the Affiliated MP
Site from time to time to determine whether the site is
compatible with AOL's then-available client and host software
and the AOL Network. Notwithstanding the foregoing, during the
[ *** ] of the Renewal Term (if applicable) provided no
renewal of this Agreement has been agreed upon by the Parties,
MP shall not be required to make changes to the Affiliated MP
Site which require [ *** ] provided, however that if the
Affiliated MP Site becomes non-functional for a material
number of AOL Members, AOL's promotional and exclusivity
obligations under this Agreement shall cease. In no event
shall MP take any action to make the Affiliated MP Site
incompatible with AOL's then-available client and host
software and the AOL Network.
<PAGE>
2.5. Product Offering. MP will ensure that the Affiliated MP Site
includes all of the Products and other Content (including,
without limitation, any features, offers, contests,
functionality or technology) that are then made available by
or on behalf of MP through any Additional MP Channel;
provided, however, that (a) such inclusion will not be
required where it is (i) commercially, economically or
technically impractical to either Party (e.g., inclusion would
cause either Party to incur substantial incremental costs),
(ii) a customized Product offered primarily to military
customers, large groups or associations, or (iii) prohibited
by any law, regulation or rule; and (b) the specific changes
in scope, nature and/or offerings required by such inclusion
will be subject to AOL's review and approval and the terms of
this Agreement. If any such Product or Content cannot be made
available in any particular state due to state regulatory
requirements, despite MP having used its reasonable efforts to
make such Product available in such state, then (i) MP shall
use reasonable efforts to make available through a
Co-Sponsorship arrangement over the Affiliated MP Site a
similar Product for such state and (ii) if MP, despite its
reasonable efforts, cannot make available through a
Co-Sponsorship arrangement a similar Product for such state,
then AOL's exclusivity obligations shall not apply with
respect to any third party providing the Exclusive Products in
such state. MP shall use reasonable efforts to maintain in
good standing its arrangements with First Health and
HealthPlan Services or replace such arrangements with
substantially comparable arrangements with substantially
comparable providers of such arrangements.
<PAGE>
2.6. Pricing and Terms. MP will ensure that: (a) the prices (and
any other required consideration) for Products sold through
the Affiliated MP Site do not exceed the prices for the
Products or substantially similar Products offered by or on
behalf of MP through any Additional MP Channel, other than
customized Products offered primarily to military customers,
large groups or associations; (b) the prices (and any other
required consideration) for Individual Medical Policies, and
any other Products in the Affiliated MP Site which are not
offered under a Co-Sponsor arrangement, are at least [ *** ]
percent ([ *** ] %) below the prices for such Products or
substantially similar Products offered by or on behalf of MP
through an agent (whether or not offered through an MP
Interactive Site); (c) the terms and conditions of sale of
Products in the Affiliated MP Site are no less favorable in
any material respect to the terms and conditions of sale of
the Products or substantially similar Products offered by or
on behalf of MP through any Additional MP Channel other than
customized Products offered primarily to military customers,
large groups or associations; and (d) the prices of the
Exclusive Products sold through the Affiliated MP Site and the
terms and conditions of sale of the Exclusive Products in the
Affiliated MP Site are reasonably competitive with the prices
and the terms and conditions of sale of the Exclusive Products
or substantially similar Products offered in the marketplace.
2.7. Special Offers. MP will (a) promote through the Affiliated MP
Site any special or promotional offers made available by or on
behalf of MP through any Additional MP Channel if such special
or promotional offer is reasonably capable of being offered
over the Affiliated MP Site and (b) promote through the
Affiliated MP Site [ *** ] special offers per year (and MP
will use reasonable efforts to promote through the Affiliated
MP Site at least [ *** ] additional special offers per year)
exclusively available to AOL Members and/or AOL Users ((a) and
(b) collectively, the "Special Offers"). MP will provide AOL
with reasonable prior notice of Special Offers so that AOL can
advertise the availability of such Special Offers with
advertising placements deemed appropriate by AOL in its
editorial discretion, subject to the terms and conditions
hereof.
2.8. Operating Standards. MP will ensure that the Affiliated MP
Site complies at all times with the standards set forth in
Exhibit E. To the extent site standards are not established in
Exhibit E with respect to any aspect or portion of the
Affiliated MP Site (or the Products or other Content contained
therein), MP will provide such aspect or portion at a level of
accuracy, quality, completeness, and timeliness that meets or
exceeds prevailing standards in the health insurance industry.
In the event MP materially breaches its obligations in
paragraphs 1, 2, 3, 8 or 9 of Exhibit E, AOL will have the
right (in addition to any other remedies available to AOL
hereunder), if such breach continues uncured after thirty (30)
days following written notice to MP thereof, to decrease the
promotion it provides to MP hereunder (and to decrease or
cease any other contractual obligation hereunder) until such
time as MP corrects its non-compliance (and in such event, (a)
AOL will be relieved of the proportionate amount of any
Impressions and promotional commitments made to MP by AOL
hereunder corresponding to such decrease in promotion and (b)
the revenue threshold(s) set forth in Sections 1.2 and 4.2 and
the Approved Application thresholds (as set forth in Exhibit B
of the Performance Warrant Agreement and the Renewal Term
Performance Warrant Agreement, as such terms are defined
below) will each be adjusted proportionately to correspond to
such decrease in promotion and other obligations during the
non-compliance period).
<PAGE>
2.9. Advertising Sales. Within thirty (30) days following the
execution of this Agreement, the Parties will mutually agree
upon a written advertising sales program (the "Ad Program")
whereby both AOL and MP will, in coordination with each other,
establish advertising inventory space within and sell
promotions, advertisements, links, pointers or similar
services or rights through the Affiliated MP Site
("Advertisements"), subject to AOL's then-applicable
advertising policies and AOL's prior approval, which approval
shall not be unreasonably withheld. AOL shall have the right
to use remnant advertising space on the Affiliated MP Site to
the extent inventory is available.
2.10. Traffic Flow. MP will take reasonable efforts to ensure that
AOL traffic is either kept within the Affiliated MP Site or
channeled back into the AOL Network (with the exception of
advertising links sold and implemented pursuant to this
Agreement). The Parties will work together on implementing
mutually acceptable links from the Affiliated MP Site back to
the AOL Service.
2.11. Compliance with Law; Indemnity. MP represents and warrants to
AOL that all Products and Content displayed, offered, sold or
distributed through the Affiliated MP Site and/or to AOL
Purchasers, whether such Products are underwritten by MP or
its affiliates or offered pursuant to a Co-Sponsorship
arrangement, and all Placement Content, are and shall be in
compliance with all applicable laws, rules and regulations and
have been approved by all applicable regulatory authorities.
MP shall defend, indemnify, save and hold harmless AOL and its
officers, directors, agents, affiliates, distributors,
franchisees and employees from any and all regulatory, legal
or administrative claims, demands, liabilities, costs or
expenses, including reasonable attorneys' fees, arising from
the violation or alleged violation of any laws, rules,
regulations or other regulatory, governmental or
administrative restrictions governing the health insurance
industry or otherwise related in whole or in part to insurance
and/or the distribution, sale, negotiation, solicitation,
marketing, promotion, advertising or provision thereof.
3. AOL EXCLUSIVITY OBLIGATIONS. So long as MP is in compliance with all
material terms of this Agreement, MP will be the exclusive third-party
direct marketer of managed-care and indemnity (a) health insurance
policies (covering medical care and pharmaceutical) ("Medical
Policies") and (b) dental insurance, vision insurance, critical care
insurance and long-term care insurance coverage, in each case for
individuals and small groups (less than 50 individuals) in the United
States (each an "Exclusive Product" and collectively, the "Exclusive
Products") to which AOL sells advertising placements within the AOL
Service, AOL.com and the Content areas branded "Digital City" (TM)
appearing within the standard U.S. version of the America Online(R)
brand service (collectively, the "Exclusive Area") for the Term. To the
extent that any third party provider and/or marketer of the Exclusive
Products is not solely a provider and/or marketer of the Exclusive
Products (i.e., it is also engaged in activities other than providing
and/or marketing the Exclusive Products), such exclusivity shall only
apply to the marketing and/or advertising of the Exclusive Products by
such party. Notwithstanding anything to the contrary in this Section 3,
no provision of this Agreement will limit AOL's or Digital City, Inc.'s
("DCI") ability (on or off the AOL Network) to:
(i) undertake activities or perform duties pursuant to
existing arrangements with third parties (or pursuant to any
agreements to which AOL or DCI becomes a party subsequent to
the Effective Date as a result of Change of Control,
assignment, merger, acquisition or other similar transaction);
<PAGE>
(ii) sell [ *** ] advertising (e.g., banners, buttons, links,
sponsorships) [ *** ] including standard placements in any
shopping area or channel, to any provider of the Exclusive
Products;
(iii) enter into an arrangement with any third party for the
primary purpose of acquiring AOL Users whereby such party is
allowed to promote or market products or services to AOL Users
that are acquired as a result of such agreement;
(iv) enter into an arrangement with a third party aggregator
of products and/or services (including an aggregator of
insurance products and/or services) which is not principally
devoted to the marketing of the Exclusive Products, provided
such arrangement does not [ *** ]
(v) enter into an arrangement with a fee-based membership club
which offers the Exclusive Products to its members; and
(vi) market, promote or advertise supplemental, secondary or
umbrella insurance, or any other type of insurance product
and/or service which is not an Exclusive Product.
4. PAYMENTS.
4.1 Guaranteed Payments.
4.1.1 Initial Term. MP will pay AOL a guaranteed amount of
Eight Million Dollars ($8,000,000) during the
Initial Term, [ *** ] of which shall be a fee (the
"Holding Fee") in consideration for AOL commencing
the exclusivity provisions of this Agreement prior
to the Launch Date and the remaining [ *** ] of
which shall be attributable to the Impressions
commitment and the placement described herein. The
Holding Fee shall be non-refundable, absent (i) a
termination of this Agreement by MP based on a
material, uncured breach of this Agreement by AOL,
or (ii) in accordance with Section 5.7. Such
guaranteed amount shall be paid as follows:
(a) [ *** ] within five (5) business days
after the execution of this Agreement;
(b) [ *** ] on or before [ *** ] and
(c) [ *** ] on or before [ *** ]
4.1.2 Renewal Term. If MP exercises its right to renew
this Agreement pursuant to Section 5.2.1, MP will
pay AOL a guaranteed amount of Thirty-Two Million
Five Hundred Thousand Dollars ($32,500,000) on or
before the first day of the Renewal Term.
<PAGE>
4.2 Administrative Fees and Other Payments.
4.2.1 Administrative Fees.
(a) MP shall pay AOL an administrative fee in the
amount of [ *** ] (a "Full Administrative Fee") for
each [ *** ] through the Affiliated MP Site:
(i) during the remainder of any calendar
quarter during the Initial Term once
Transaction Revenues during such quarter
exceed [ *** ]
(ii) during the remainder of the Initial
Term once Transaction Revenues during the
Initial Term exceed [ *** ]
(iii) during the remainder of any calendar
quarter during the Renewal Term (if
applicable) once Transaction Revenues during
such quarter exceed [ *** ]
(iv) during the remainder of any year during
the Renewal Term (if applicable) once
Transaction Revenues during such year exceed
[ *** ]; and
(v) during the remainder of the Term once
either (a) Transaction Revenues during the
Term exceed [ *** ] or (b) AOL has provided
at least [ *** ] cumulative Impressions
under this Agreement;
provided, however, that MP shall only pay a single
Full Administrative Fee for each [ *** ]
notwithstanding that more than one of the foregoing
revenue thresholds may have been met. Notwithstanding
the foregoing, in the event Transaction Revenues
during the Initial Term are less than [ *** ] (an
"Initial Term Deficit"), then (i) each quarterly
Transaction Revenue threshold during the Renewal Term
shall be increased by [ *** ] of the amount of the
Initial Term Deficit, and (ii) the annual Transaction
Revenue threshold during the Renewal Term shall be
increased by [ *** ] of the amount of the Initial
Term Deficit.
(b) MP shall pay AOL an administrative fee in the
amount of [ *** ] (a "Reduced Administrative Fee")
for each [ *** ] through an MP Interactive Site by an
AOL Purchaser and [ *** ]. Full Administrative Fees
and Reduced Administrative Fees are collectively
referred to herein as "Administrative Fees."
(c) MP shall pay AOL [ *** ] of each Full
Administrative Fee and [ *** ] of each Reduced
Administrative Fee on or before the date (the
"Administrative Fee Payment Date") which is thirty
(30) days after the end of the quarter in which such
Administrative Fee was generated. MP shall pay AOL
the remaining [ *** ] of each such Full
Administrative Fee and the remaining [ *** ] of each
such Reduced Administrative Fee no later than [ *** ]
after the Administrative Fee Payment Date applicable
to such Administrative Fee. Notwithstanding the
foregoing, if the total aggregate Transaction
Revenues during the Initial Term and the Renewal Term
are less than [ *** ] (a "Final Deficit"), then MP
may withhold any Administrative Fees (or installments
thereof) which have not yet been paid and are not yet
due and payable to AOL as of the expiration of the
Renewal Term in accordance with the following:
<PAGE>
(i) MP may withhold such payments from AOL
to the extent of the lesser of (i) the
amount necessary for MP to "recoup" the
amount of the Final Deficit as described
below or (ii) the full amount of the
Administrative Fees not yet paid or due and
payable to AOL.
(ii) For each [ *** ] of Full Administrative
Fees withheld by MP, MP shall "recoup" [ ***
] of the Final Deficit and for each [ *** ]
of Reduced Administrative Fees withheld by
MP, MP shall "recoup" [ *** ] of the Final
Deficit.
(d) The Parties acknowledge and agree that, for
purposes of this Agreement (including without
limitation this Section 4 and Section 6), [ *** ]
that is [ *** ] in no way indicates or implies that
such [ *** ] will result in the sale of a policy, and
any such [ *** ] will count toward the thresholds
contained in this Section 4 and in Section 6
regardless of whether a policy is eventually sold as
a result of such [ *** ].
4.2.2 Other Revenues. MP shall pay AOL [ *** ] of all Other
Revenues on a quarterly basis within thirty (30) days
after the end of the quarter in which such Other
Revenues are generated; provided, however, that MP
shall share Advertising Revenues with AOL as provided
in Section 4.3.
4.2.3 Ancillary Policy Fees.
(a) For each Ancillary Policy for which an [ *** ]
through the Affiliated MP Site and [ *** ], MP shall
pay AOL an amount (an "Ancillary Policy
Administrative Fee") equal to (i) [ *** ] multiplied
by (ii) the fraction which has [ *** ] as its
numerator and (y) [ *** ] as its denominator. Such
payment shall be made on a quarterly basis within
thirty (30) days after the end of the quarter in
which such Ancillary Policy Administrative Fees are
generated. "Ancillary Policy" shall mean any policy
other than a Medical Policy which is not subject to a
Co-Sponsorship arrangement.
(b) For each Ancillary Policy for which [ *** ]
through an MP Interactive Site and [ *** ], MP shall
pay AOL an amount (a "Reduced Ancillary Policy
Administrative Fee") equal to (i) [ *** ] multiplied
by (ii) the fraction which has (x) [ *** ] as its
numerator and (y) [ *** ]. Such payment shall be made
on a quarterly basis within thirty (30) days after
the end of the quarter in which such Reduced
Ancillary Policy Administrative Fees are generated.
4.2.4 Sales through Agents. For all purposes under this
Agreement, any sale or application initiated through
the Affiliated MP Site or an MP Interactive Site
shall be deemed a sale or application submitted
through the Affiliated MP Site or such MP Interactive
Site regardless of whether or not an agent is used in
connection with such sale or application.
4.2.5 Alternative Compensation. Notwithstanding the
foregoing, in the event either Party determines that
paying or receiving compensation in the form of
Administrative Fees, Ancillary Policy Administrative
Fees, Reduced Ancillary Policy Administrative Fees
and/or a percentage of Other Revenues creates a
reasonable likelihood that such Party will incur
material regulatory, legal or financial liability,
including without limitation, monetary damages or
enforcement remedies, then, upon request by the
Party making such determination, the Parties will
promptly negotiate in good faith an alternative
compensation structure which provides substantially
similar compensation to AOL; provided that a Party's
determination in this regard shall be based on the
written advice of counsel experienced in the laws
and regulations applicable to the insurance
industry.
<PAGE>
4.3 Sharing of Advertising Revenues. Each Party will be entitled
to [ *** ] of Advertising Revenues. Each Party will pay the
other Party all Advertising Revenues received and owed to such
other Party as described herein on a quarterly basis within
thirty (30) days after the end of the quarter in which such
amounts were generated by such Party.
4.4. Alternative Revenue Streams. In the event MP or any of its
affiliates (a) receives or desires to receive, directly or
indirectly, any compensation in connection with the Affiliated
MP Site other than Transaction Revenues or Advertising
Revenues (an "Alternative Revenue Stream"), MP will promptly
inform AOL in writing, and the Parties will negotiate in good
faith regarding whether MP will be allowed to market Products
producing such Alternative Revenue Stream through the
Affiliated MP Site, and if so, the equitable payments that AOL
will receive in consideration for advertising the Products
producing such Alternative Revenue Stream. Absent an agreement
between the Parties regarding such payments, MP shall not be
permitted to market such Products through the Affiliated MP
Site.
4.5 Wired Payments; Late Payments. All payments required under
this Section 4 will be paid by wire transfer of in immediately
available, non-refundable funds wired to the payee's account.
All amounts owed hereunder not paid when due and payable will
bear interest from the date such amounts are due and payable
at the prime rate in effect at such time.
4.6 Auditing Rights. MP will maintain complete and accurate
records of all expenses, revenues and fees in connection with
the performance of this Agreement. For the sole purpose of
ensuring compliance with this Agreement, AOL will have the
right, at its expense, to direct an independent certified
public accounting firm to conduct a reasonable and necessary
inspection of portions of the books and records of MP which
are relevant to MP's performance pursuant to this Agreement.
Any such audit may be conducted after twenty (20) business
days prior written notice.
4.7 Taxes. MP will collect and pay and indemnify and hold AOL
harmless from, any sales, use, excise, import or export value
added or similar tax or duty not based on AOL's income,
including any penalties and interest, as well as any costs
associated with the collection or withholding thereof,
including attorneys" fees.
<PAGE>
4.8 Reports.
4.8.1 Sales Reports. MP will provide AOL in an automated
manner with a monthly report in an AOL-designated
format, detailing the following activity in such
period (and any other information mutually agreed
upon by the Parties or reasonably required for
measuring revenue activity by MP though the
Affiliated MP Site): (i) sales information by day
(date, number of Products, number of orders,
renewals, total Transaction Revenues, number of
Medical Policies, number of Ancillary Policies,
average premium for Medical Policies, average premium
for Ancillary Policies and average premiums for
Products sold under Co-Sponsorship arrangements per
policy by category, number of applications submitted
by category, number of applications approved by
category); and (ii) detailed sales information (order
date/timestamp (if technically feasible), purchaser
name and screenname, SKU or Product description)
(information in clauses (i) and (ii), "Sales
Reports"). AOL will be entitled to use the Sales
Reports in its business operations, subject to the
terms of this Agreement. More generally, each payment
to be made by MP pursuant to this Section 4 will be
accompanied by a report containing information which
supports the payment, including information
identifying (i) gross Transaction Revenues and all
items deducted or excluded from gross Transaction
Revenues to produce Transaction Revenues, including,
without limitation, chargebacks and credits for
returned or canceled goods or services (and, where
possible, an explanation of the type of reason
therefor, e.g., bad credit card information, poor
customer service, etc.) and (ii) any applicable
Advertising Revenues.
4.8.2 Other Reports. AOL shall make available to MP a
monthly report specifying for the prior month
aggregate usage and Impressions with respect to MP's
presence on the AOL Network. MP will supply AOL with
monthly reports which reflect total impressions by
AOL Members to the Affiliated MP Site during the
prior month and "click-through" data with respect to
the promotions described in Sections 1.1 and 1.4. MP
shall provide to AOL a monthly report documenting its
compliance with the promotional commitments it has
undertaken pursuant to this Agreement.
4.8.3 Fraudulent Transactions. To the extent permitted by
applicable laws, MP will provide AOL with an prompt
report of any fraudulent order, including the date,
screenname or e-mail address and amount associated
with such order, promptly following MP obtaining
knowledge that the order is, in fact, fraudulent.
5. TERM; RENEWAL; TERMINATION.
5.1 Term. Unless earlier terminated as set forth herein, the
initial term of this Agreement will be one (1) year and eight
(8) months from the Effective Date (the "Initial Term").
5.2 Renewal; Extension.
5.2.1 By MP. MP shall have the one-time right to renew this
Agreement for an additional period of two (2) years
(the "Renewal Term" and together with the Initial
Term, the "Term") by giving AOL written notice of
such election by not later than one hundred twenty
(120) days prior to the expiration of the Initial
Term.
<PAGE>
5.2.2 By AOL. Upon conclusion of the Term, AOL will have
the right to extend this Z Agreement for [ *** ]
successive one-year extension terms by providing MP
with notice of AOL's intention to extend this
Agreement for a subsequent one year term no later
than sixty (60) days prior to the expiration of the
Term (or the then-current one year extension term).
During any such one year extension term: (i) MP will
not be required to pay any guaranteed, fixed payment
or perform the cross-promotional obligations
specified in Section 1.4; (ii) MP will pay AOL
Administrative Fees pursuant to Section 4 without
regard to any revenue threshold and will continue to
pay Ancillary Policy Administrative Fees and AOL's
share of Other Revenues and Advertising Revenues ;
(iii) AOL will have no obligations or commitments to
provide Impressions; (iv) MP's obligations under
Section 1.3 (with respect to Placement Content),
Section 1.5 (with respect to marketing plans) and
Section 2 of this Agreement shall terminate; and (v)
AOL will not be required to undertake any fixed
exclusivity or advertising placement obligations;
provided that (vi) subject to the terms of Exhibit C,
for so long as AOL may elect to maintain the
exclusivity commitments contained herein during any
one year renewal term, MP will continue to perform
all of MP's cross-promotional obligations (except
that the restrictions in Section A. (4) (ii) of
Exhibit C, and in Section A. (5) of Exhibit C as it
relates to [ *** ], shall not apply. AOL's right to
extend will apply in connection with (i) an
expiration of the Initial Term or the Renewal Term,
(ii) the expiration of a one year extension term
pursuant to this Section 5.2.2, and (iii) any other
termination of this Agreement; provided, however that
if such termination is due to a material uncured
breach of this Agreement by AOL, then AOL's right to
extend this Agreement pursuant to this Section 5.2.2
shall be limited to [ *** ].
5.3 Termination for Breach. Except as expressly provided elsewhere
in this Agreement, either Party may terminate this Agreement
at any time in the event of a material breach of this
Agreement by the other Party which remains uncured after
thirty (30) days written notice thereof to the other Party (or
such shorter period as may be specified elsewhere in this
Agreement); provided that AOL will not be required to provide
notice to MP in connection with MP's failure to make any
payment to AOL required hereunder, and the cure period with
respect to any scheduled payment shall be fifteen (15) days
from the date for such payment provided for herein.
Notwithstanding the foregoing, in the event of a material
breach of a provision that expressly requires action to be
completed within an express period shorter than 30 days,
either Party may terminate this Agreement if the breach
remains uncured after the number of days in such shorter
period following written notice thereof to the other Party.
5.4 Termination for Bankruptcy/Insolvency. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or
involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
<PAGE>
5.5 Termination on Change of Control. In the event of a Change of
Control of MP resulting in control of MP by an Interactive
Service, AOL may terminate this Agreement by providing thirty
(30) days prior written notice of such intent to terminate. In
the event of a Change of Control of AOL resulting in control
of AOL by a provider of the Exclusive Products, AOL may
terminate this Agreement by providing ninety (90) days prior
written notice of such intent to terminate.
5.6 Termination for Potential Liability. In the event (i) AOL, in
its good faith reasonable judgment (which shall be based upon
advice of counsel experienced in the laws and regulations
applicable to the insurance industry), determines that a
reasonable likelihood exists that AOL will incur material
regulatory, legal or financial liability, including without
limitation, monetary damages or enforcement remedies, as a
result of this Agreement or any aspect of the arrangements
contemplated by this Agreement and (ii) the reasonable
likelihood of such regulatory, legal or financial liability,
in AOL's reasonable judgment, cannot be eliminated pursuant to
Section 4.2.5, then (iii) AOL may terminate this Agreement
effective on the date (the "Termination Date") which is thirty
(30) days after AOL provides MP with written notice of such
intent to terminate; provided, however, that so long as such
regulatory, legal or financial liability is not imminent, in
AOL's reasonable judgment, the Termination Date shall be
extended by an additional sixty (60) days to provide for an
orderly transition of the Affiliated MP Site off of the AOL
Network. If, prior to the Termination Date, MP eliminates the
reasonable likelihood of such regulatory, legal or financial
liability to AOL's satisfaction, then this Agreement shall
continue as if AOL had not exercised its right to terminate
this Agreement pursuant to this Section 5.6.
<PAGE>
5.7 Refund Upon Certain Terminations. In the event of a
termination of this Agreement pursuant to Section 5.5 or
Section 5.6, AOL will refund to MP the pro rata portion of any
guaranteed payment made by MP pursuant to Section 4.1 which is
attributable to the period subsequent to the Termination Date;
provided, however, that the Holding Fee shall not be
refundable if such termination is pursuant to the first
sentence of Section 5.5.
6. WARRANTS.
6.1 Grant of Warrants.
6.1.1 Initial Grant. Provident American Corporation
("Issuer") hereby grants to AOL a warrant (the
"Warrant") representing the right for a [ *** ]
period to purchase up to three hundred thousand
(300,000) shares of Issuer"s common stock, $0.10 par
value per share (the "Common Stock"), at a price per
share equal to Four and 48/100 Dollars ($4.48).
6.1.2 Additional Grant During Initial Term. Issuer hereby
grants to AOL a warrant (the "Performance Warrant")
representing the right for a [ *** ] period to
purchase up to one hundred fifty thousand (150,000)
shares of Common Stock at a price per share equal to
Five and 15/100 Dollars ($5.15). The Performance
Warrant shall vest quarterly in accordance with the
terms of the Performance Warrant Agreement (as
defined below).
6.1.3 Additional Grant During Renewal Term. If MP exercises
its right to renew this Agreement pursuant to Section
5.2.1, Issuer shall grant to AOL a warrant (the
"Renewal Term Performance Warrant") representing the
right for a [ *** ] period to purchase up to three
hundred thousand (300,000) shares of Common Stock at
a price per share equal to Five and 15/100 Dollars
($5.15). The Renewal Term Performance Warrant shall
vest quarterly in accordance with the terms of the
Renewal Term Performance Warrant Agreement (as
defined below).
6.2 Terms and Conditions. The rights, preferences and privileges
of the Warrant and the Common Stock issuable upon exercise of
the Warrant shall be as set forth in the Common Stock Warrant
Agreement (defined below). The rights, preferences and
privileges of the Performance Warrant and the Common Stock
issuable upon exercise of the Performance Warrant shall be as
set forth in the Performance Warrant Agreement. The rights,
preferences and privileges of the Renewal Term Performance
Warrant and the Common Stock issuable upon exercise of the
Renewal Term Performance Warrant shall be as set forth in the
Renewal Term Performance Warrant Agreement.
<PAGE>
6.3 Approval; Final Agreement. Upon execution of this Agreement,
Issuer shall issue the Warrant and the Performance Warrant
granted hereunder and will enter into (i) a Stock Subscription
Warrant on the form attached hereto as Exhibit H-1 (the
"Common Stock Warrant Agreement"), which will document the
grant of the Warrant hereby made to AOL and (ii) a Stock
Subscription Performance Warrant on the form attached hereto
as Exhibit H-2 (the "Performance Warrant Agreement"), which
will document the grant of the Performance Warrant hereby made
to AOL. Upon exercise by MP of its right to renew this
Agreement pursuant to Section 5.2.1, Issuer shall issue the
Renewal Term Performance Warrant and shall enter into a Stock
Subscription Performance Warrant on the same form as the
Performance Warrant Agreement (except that the number of
shares of Common Stock AOL will be entitled to purchase
thereunder shall be in accordance with Section 6.1.3 and
except as the Performance Warrant Agreement may otherwise
expressly provide) (the "Renewal Term Performance Warrant
Agreement"). Issuer hereby acknowledges and agrees that, in
the event of a breach of the provisions of this Section 6, AOL
would be irreparably harmed and it would be impossible for AOL
to determine the amount of damages that would result from such
breach, and that accordingly, any remedy at law for any such
breach or threatened breach thereof, would be inadequate.
Accordingly, Issuer agrees that the provisions of this Section
6 may be specifically enforced through equitable and
injunctive relief in addition to any other applicable rights
or remedies AOL may have, from any court of competent
jurisdiction. Issuer hereby waives the claim or defense that a
remedy at law would be adequate in respect to this provision,
and agrees to have this Section 6 specifically enforced
against Issuer without the necessity of posting bond or other
security, and consents to the entry of injunctive relief
enjoining or restraining any breach or threatened breach of
this Section 6. In addition, without limiting any other remedy
available hereunder, in the event Issuer has not issued the
Renewal Term Performance Warrant and executed and delivered
the Renewal Term Performance Warrant Agreement by not later
than ninety (90) days prior to the commencement of the Renewal
Term (if MP has exercised its right to renew this Agreement
pursuant to Section 5.2.1), then AOL may, at its option,
terminate this Agreement upon the expiration of the Initial
Term.
7. LAUNCH DELAY. In the event the Launch is delayed beyond the Launch
Date, (i) AOL's Impression commitments and the Site Revenue thresholds
set forth in Section 1.2, (ii) the Transaction Revenue thresholds set
forth in Section 4.2.1 and (iii) the Approved Application thresholds
(as set forth in Exhibit B of the Performance Warrant Agreement and the
Renewal Term Performance Warrant Agreement), each shall be
proportionately reduced.
8. MANAGEMENT COMMITTEE/ARBITRATION.
8.1 The Parties will act in good faith and use commercially
reasonable efforts to promptly resolve any claim, dispute,
claim, controversy or disagreement (each a "Dispute") between
the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under this Agreement or any
document executed pursuant to this Agreement. If the Parties
cannot resolve the Dispute within such time frame, the Dispute
will be submitted to the Management Committee for resolution.
For ten (10) days following submission of the Dispute to the
Management Committee, the Management Committee will have the
exclusive right to resolve such Dispute; provided further that
the Management Committee will have the final and exclusive
right to resolve Disputes arising from any provision of this
Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms.
"Management Committee" will mean a committee made up of a
senior executive from each of the Parties for the purpose of
resolving Disputes under this Section 8 and generally
overseeing the relationship between the Parties contemplated
by this Agreement. Neither Party will seek, nor will be
entitled to seek, binding outside resolution of the Dispute
unless and until the Parties have been unable amicably to
resolve the Dispute as set forth in this Section 8 and then,
only in compliance with the procedures set forth in this
Section 8.
<PAGE>
8.2 Except for Disputes relating to issues of (i) proprietary
rights, including but not limited to intellectual property and
confidentiality, and (ii) any provision of this Agreement
which expressly or implicitly provides for the Parties to
reach mutual agreement as to certain terms (which will be
resolved by the Parties solely and exclusively through
amicable resolution as set forth in Section 8.1), any Dispute
not resolved by amicable resolution as set forth in Section
8.1 will be governed exclusively and finally by arbitration.
Such arbitration will be conducted by the American Arbitration
Association ("AAA") in Washington, D.C. and will be initiated
and conducted in accordance with the Commercial Arbitration
Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes
("Complex Procedures"), as such rules will be in effect on the
date of delivery of a demand for arbitration ("Demand"),
except to the extent that such rules are inconsistent with the
provisions set forth herein. Notwithstanding the foregoing,
the Parties may agree in good faith that the Complex
Procedures will not apply in order to promote the efficient
arbitration of Disputes where the nature of the Dispute,
including without limitation the amount in controversy, does
not justify the application of such procedures.
8.3 The arbitration panel will consist of three arbitrators. Each
Party will name an arbitrator within ten (10) days after the
delivery of the Demand. The two arbitrators named by the
Parties may have prior relationships with the naming Party,
which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two,
should be a neutral participant, with no prior working
relationship with either Party. If the two arbitrators are
unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the
panel of commercial arbitrators of any of the AAA Large and
Complex Resolution Programs. If a vacancy in the arbitration
panel occurs after the hearings have commenced, the remaining
arbitrator or arbitrators may not continue with the hearing
and determination of the controversy, unless the Parties agree
otherwise.
8.4 The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not
state law, will govern the arbitrability of all Disputes. The
arbitrators will allow such discovery as is appropriate to the
purposes of arbitration in accomplishing a fair, speedy and
cost-effective resolution of the Disputes. The arbitrators
will reference the Federal Rules of Civil Procedure then in
effect in setting the scope and timing of discovery. The
Federal Rules of Evidence will apply in toto. The arbitrators
may enter a default decision against any Party who fails to
participate in the arbitration proceedings.
8.5 The arbitrators will have the authority to award compensatory
damages only. Any award by the arbitrators will be accompanied
by a written opinion setting forth the findings of fact and
conclusions of law relied upon in reaching the decision. The
award rendered by the arbitrators will be final, binding and
non-appealable, and judgment upon such award may be entered by
any court of competent jurisdiction. The Parties agree that
the existence, conduct and content of any arbitration will be
kept confidential and no Party will disclose to any person any
information about such arbitration, except as may be required
by law or by any governmental authority or for financial
reporting purposes in each Party's financial statements.
8.6 Each Party will pay the fees of its own attorneys, expenses of
witnesses and all other expenses and costs in connection with
the presentation of such Party's case (collectively,
"Attorneys" Fees'). The remaining costs of the arbitration,
including without limitation, fees of the arbitrators, costs
of records or transcripts and administrative fees
(collectively, "Arbitration Costs") will be born equally by
the Parties. Notwithstanding the foregoing, the arbitrators
may modify the allocation of Arbitration Costs and award
Attorneys' Fees in those cases where fairness dictates a
different allocation of Arbitration Costs between the Parties
and an award of Attorneys' Fees to the prevailing Party as
determined by the arbitrators.
<PAGE>
8.7 Any Dispute that is not subject to final resolution by the
Management Committee or to arbitration under this Section 8 or
by law (collectively, "Non-Arbitration Claims") will be
brought in a court of competent jurisdiction in the
Commonwealth of Virginia. Each Party irrevocably consents to
the exclusive jurisdiction of the courts of the Commonwealth
of Virginia and the federal courts situated in the
Commonwealth of Virginia, over any and all Non-Arbitration
Claims and any and all actions to enforce such claims or to
recover damages or other relief in connection with such
claims.
9. STANDARD TERMS. The Standard Online Commerce Terms & Conditions set
forth on Exhibit F attached hereto and Standard Legal Terms &
Conditions set forth on Exhibit G attached hereto are each hereby made
a part of this Agreement. In the event of a conflict between the body
of this Agreement and the terms of Exhibit F or Exhibit G, the terms
contained in the body of this Agreement shall govern.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. PROVIDENT HEALTH SERVICES, INC.
By: /s/ David M. Colburn By: /s/ Alvin H. Clemens
---------------------------------- --------------------------------
Print Name: David M. Colburn Print Name: Alvin H. Clemens
------------------------ -----------------------
Title: Senior Vice President, Title: Chairman and CEO
------------------------------ -----------------------------
Business Affairs
------------------------------
Issuer hereby guarantees payment and performance of all MP's obligations under
this Agreement. In addition, by execution hereof, Issuer evidences its agreement
to the terms of Section 6 of this Agreement.
PROVIDENT AMERICAN CORPORATION
By: /s/ Alvin H. Clemens
---------------------------------
Print Name: Alvin H. Clemens
------------------------
Title: Chairman and CEO
------------------------------
