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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 30, 1999
PROVIDENT AMERICAN CORPORATION
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(Exact name of registrant as specified in its charter)
Pennsylvania 0-13591 23-2214195
- ---------------------------- ----------------------- -------------------
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
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
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EXPLANATORY NOTE
On April 30,1999, Provident American Corporation ("Provident" or the
"Company") filed a Current Report on Form 8-K to report the sale of $8.8 million
of Series C Preferred Stock by its subsidiary, HealthAxis.com Inc., formerly
known as Insurion Inc. ("HealthAxis") and the execution of amendments to certain
agreements. The purpose of this Form 8-K/A is to file Exhibits 10.1 and 10.2,
which were omitted from the initial Form 8-K and for which a confidential
treatment request has been filed with the Securities and Exchange Commission.
Item 7. Financial Statements and Exhibits
(a) Financial Statements.
None
(b) Exhibits.
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The following exhibits are filed herewith:
S-K Item
Number Description
- ------ -----------
10.1 Second Amendment to the Amended and Restated Interactive
Marketing Agreement between HealthAxis.com, Inc. and America
Online, Inc. (This document has been redacted to remove
certain portions for which confidential treatment has been
requested by the Company pursuant to Rule 24b-2.).
10.2 Second Amendment to the Promotion Agreement between
HealthAxis and CNet. (This document has been redacted to
remove certain portions for which confidential treatment has
been requested by the Company pursuant to Rule 24b-2.)
10.3* Stockholders Agreement dated November 13, 1998.
* Previously filed in Current Report on Form 8-K filed with the Securities and
Exchange Commission on April 30,1999.
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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
Date: ___________________ By: /s/ Alvin H. Clemens
----------------------------
Alvin H. Clemens
Chairman of the Board and
Chief Executive Officer
Date: ___________________ By: /s/ Francis L. Gillan, III
----------------------------
Francis L. Gillan III
Chief Accounting Officer and
Treasurer
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EXHIBIT INDEX
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S-K Item
Number Description
- ------ -----------
10.1 Second Amendment to the Amended and Restated Interactive
Marketing Agreement between HealthAxis.com, Inc. and America
Online, Inc. (This document has been redacted to remove
certain portions for which confidential treatment has been
requested by the Company pursuant to Rule 24b-2.)
10.2 Second Amendment to the Promotion Agreement between
HealthAxis and CNet. (This document has been redacted to
remove certain portions for which confidential treatment has
been requested by the Company pursuant to Rule 24b-2.)
10.3* Stockholders Agreement dated November 13, 1998.
* Previously filed in Current Report on Form 8-K filed with the Securities and
Exchange Commission on April 30,1999.
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Confidential
SECOND AMENDMENT TO AMENDED AND RESTATED INTERACTIVE MARKETING AGREEMENT
------------------------------------------------------------------------
This Second Amendment to Amended and Restated Interactive Marketing
Agreement (this "Amendment"), dated as of April 1, 1999, is between (i) America
Online, Inc. ("AOL"), a Delaware corporation, with offices at 22000 AOL Way,
Dulles, Virginia 20166, and (ii) Provident Health Services, Inc., a Pennsylvania
corporation ("PHI") and HealthAxis.com Inc., a Pennsylvania corporation ("HAI"
and collectively with PHI, "Marketing Partner" or "MP"), each having 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
AOL and PHI entered into an Amended and Restated Interactive Marketing
Agreement dated as of February 1, 1998 (as amended by the First Amendment to
Amended and Restated Interactive Marketing Agreement, the "Agreement"). HAI is
an affiliate of PHI and PHI assigned its rights under the Agreement to HAI.
Capitalized terms used in this Amendment without other definition are defined as
in the Agreement. In light of both parties' desire to amend certain terms of the
Agreement, the parties hereby agree as follows:
TERMS
1. The Agreement is amended to provide that references in the Agreement to
"this Agreement" or "the Agreement" (including indirect references such
as "hereunder," "hereby," "herein" and "hereof") shall be deemed to be
references to the Agreement as amended by this Amendment.
2. Section 1.1 of the Agreement is amended to add the following sentence
to the end thereof:
"AOL shall use reasonable efforts to provide MP with placements within
the CompuServe branded service and/or Netscape Netcenter Internet site,
subject to availability, existing contractual relationships and AOL's
business, programming and policy considerations."
3. The following is added to the end of Section 3 of the Agreement:
"Notwithstanding the foregoing or anything to the contrary
in this Agreement:
"(d) MP acknowledges and agrees that the Personal Finance Web
Center is controlled by Intuit and is not subject to AOL's
exclusivity obligations for AOL.com."
4. The following sentence is added to the end of Section 1.2:
"For purposes of clarification, the Adjusted Coverage
Rate shall never be greater than [o o o]."
5. Subparagraph (e) of Section 4.1.1 of the Agreement is deleted in its entirety
and the following is inserted in lieu thereof:
"(e) [o o o] on or before the earlier to occur
of (i) [o o o] after MP consummates a financing
and (ii) [o o o].
6. Section 4.1.2 of the Agreement is deleted in its entirety and the following
is inserted in lieu thereof:
"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 [o o o]. Such payment shall be made in
installments with installments in the following amounts due on
or before each of the
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following dates: (a) [o o o] on or before [o o o]; (b) [o o o]
on or before [o o o]; (c) [o o o] on or before [o o o]; (d) [o
o o] on or before [o o o] and (e) [o o o] on or before [o o
o]. Notwithstanding anything to the contrary in this
Agreement, if any installment payable by MP pursuant to this
Section 4.1.2 is not paid by the due date for such
installment, then, in addition to all other available
remedies, all further payments under this Section 4.1.2 shall
become immediately due and payable."
7. The threshold set forth in Section 4.2.1(a)(i) is changed from [o o o]
to [o o o]; the threshold set forth in Section 4.2.1(a)(ii) is changed
from [o o o] to [o o o]; the threshold set forth in Section
4.2.1(a)(iii) is changed from [o o o] to [o o o]; the threshold set
forth in Section 4.2.1(a)(iv) is changed from [o o o] to [o o o]; and
the dollar threshold set forth in Section 4.2.1(a)(v) is changed from
[o o o] to [o o o]. Notwithstanding anything to the contrary in the
Agreement, the Parties acknowledge and agree that MP's payment
obligations under Section 4.2.1(b), Section 4.2.2 and Section 4.2.3
shall arise only upon satisfaction by MP of the revenue thresholds set
forth in Section 4.2.1(a).
8. Section 5.2.1 of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"5.2.1 By MP. Provided MP has fulfilled the requirements set
forth on Schedule Y and MP continues to be in
compliance with such requirements upon the expiration
of the Initial Term, MP shall have the one-time right
to renew this Agreement for an additional period of
two (2) years and four (4) months (i.e., expiring May
31, 2002) (the "Renewal Term" and together with the
Initial Term, the "Term") by giving AOL written
notice of such election by not later than January 17,
2000. AOL shall have the right to conduct a quality
audit prior to the expiration of the Initial Term to
ascertain whether MP has fulfilled and continues to
be in compliance with the requirements set forth on
Schedule Y."
9. A new Section 5.2.3. is added to the Agreement as follows:
"5.2.3. Wind-Down Period. In the event MP does not elect to
renew this Agreement as provided in Section 5.2.1,
the Parties agree that there will be a four (4) month
"wind-down" period beginning on February 1, 2000 and
ending on May 31, 2000 (the "Wind-Down Period").
During the Wind-Down Period, MP shall continue to
perform all of its obligations under this Agreement
except that (a) there shall be no further fixed
payment obligations and (b) MP shall continue to pay
Administrative Fees and other revenue sharing amounts
in accordance with Sections 4.2 and 4.3. During the
Wind-Down Period, AOL shall have no further
exclusivity obligations and AOL's sole obligation
shall be to work together with MP to manage an
orderly transition of the Affiliated MP Site from the
AOL Network and both Parties agree that AOL Users
will continue to have access to the Affiliated MP
Site during the Wind-Down Period. For purposes of
AOL's first extension right under Section 5.2.2, AOL
is required to notify MP of its exercise thereof on
or before March 31, 2000 and, if exercised, such
extension term would commence upon the expiration of
the Wind-Down Period."
10. Any Keyword Search Terms to be directed to the Affiliated MP Site shall
be (i) subject to availability for use by MP and (ii) limited to the
combination of the Keyword(TM)search modifier combined with a
registered trademark of MP. AOL reserves the right to revoke at any
time MP's use of any Keyword Search Terms which do not incorporate
registered trademarks of MP. MP acknowledges that its utilization of a
Keyword Search Term will not create in it, nor will it represent it
has, any right, title or interest in or to such Keyword Search Term,
other than the right, title and interest MP holds in MP's registered
trademark independent of the Keyword Search Term. Without limiting the
generality of the foregoing, MP will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword
Search Term; or (b) use the Keyword
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Search Term, except for the purposes expressly required or permitted
under this Agreement. This Section shall survive the completion,
expiration, termination or cancellation of the Agreement. "Keyword
Search Term" shall mean the Keyword(TM)online search terms made
available on the AOL Service for use by AOL Members, combining AOL's
Keyword(TM)online search modifier with a term or phrase specifically
related to MP (and determined in accordance with the terms of this
Agreement).
11. Subject to the prior consent of MP, which consent will not be
unreasonably withheld, AOL will be entitled to establish navigational
icons, links and pointers connecting the Affiliated MP Site (or
portions thereof) with other content areas on or outside of the AOL
Network. Additionally, in cases where an AOL User performs a search for
MP through any search or navigational tool or mechanism that is
accessible or available through the AOL Network (e.g., Promotions,
Keyword Search Terms, or any other similar promotions or navigational
tools), AOL shall have the right to direct such AOL User to the
Affiliated MP Site, or any other MP Interactive Site determined by AOL
in its reasonable discretion.
12. MP shall cooperate with AOL in connection with planning, scheduling and
delivering the Promotions and Impressions under the Agreement,
including without limitation by responding promptly to AOL's requests
for information or feedback on the promotion plan and by causing MP's
advertising agency to adhere to the terms of the Agreement and this
paragraph. In general, AOL will use reasonable efforts to request MP's
feedback on aspects of implementation of the carriage plan; provided,
however, that all Impressions delivered by AOL in accordance with the
Agreement shall count toward the Impressions commitment under the
Agreement regardless of whether MP provides such feedback. In the event
MP requests that Impressions be delivered in areas of the AOL Network
not contemplated under the carriage plan and AOL elects, at its sole
discretion, to accommodate such request, such Impressions shall be
counted against the Impressions commitment under the Agreement at a
value commensurate with the value of Impressions that appear in such
areas of the AOL Network (so one Impression delivered in the requested
area may count as more than one Impression against the Impressions
commitment).
13. In consideration of and as a condition to AOL entering into this
Amendment, MP hereby irrevocably waives all Claims against AOL and/or
its affiliates, successors, assigns, directors, officers, agents and
employees (collectively, the "AOL Parties") arising out of, or
otherwise related to, the Agreement and forever releases the AOL
Parties therefrom and further agrees not to make or assert any Claims
against any AOL Party in connection with the Agreement. "Claims" shall
mean any and all claims, suits, demands actions and rights, known or
unknown, which arise or accrue on or before the date of this Amendment.
14. This Amendment does not, and shall not be construed to, modify any term
or condition of the Agreement other than those specific terms and
conditions expressly referenced in this Amendment. Except as herein
provided, the Agreement shall remain unchanged and in full force and
effect. In the event of any inconsistency or discrepancy between the
Agreement and this Amendment, the terms and conditions set forth in
this Amendment shall control. This Amendment may be executed in
multiple counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same document.
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the
date first set forth above.
AMERICA ONLINE, INC. PROVIDENT HEALTH SERVICES, INC.
By: _______________________________ By: ___________________________
Print Name: ______________________ Print Name: __________________
Title: ____________________________ Title: ________________________
HEALTHAXIS.COM INC.
By: ___________________________
Print Name: __________________
Title: ________________________
Issuer hereby guarantees payment and performance of all MP's obligations under
the Agreement. In addition, by execution hereof, Issuer evidences its agreement
to the terms of Section 6 of the Agreement.
PROVIDENT AMERICAN CORPORATION
By: _______________________________
Print Name: ______________________
Title: ____________________________
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SECOND AMENDMENT TO PROMOTION AGREEMENT
THIS SECOND AMENDMENT TO THE PROMOTION AGREEMENT (the "Amendment") is
dated as of April 14, 1999 between and among CNET, Inc., with its
principal place of business located at 150 Chestnut Street, San
Francisco, California 94111 ("CNET"), Snap! LLC, with its principal
place of business located at One Beach Street, San Francisco, CA 94111
("Snap"), and HealthAxis.com, Inc. f/k/a Insurion, Inc., with its
principal place of business located at 2500 DeKalb Pike, Norristown, PA
19404 (the "Company"). CNET and Company entered into the Promotion
Agreement dated June 14, 1998 (the "Agreement"), wherein CNET agreed to
provide various promotions on the CNET Sites and CNET television shows.
The Agreement was amended by CNET and the Company effective November
13, 1998 related to their responsibilities. Effective on July 1, 1998,
Snap became a separate business entity and now operates independently
of CNET. CNET and Snap have determined that it is in the best interest
of each to allocate responsibility for the Retail Promotions between
themselves as described herein, and CNET and Company have determined
that it is in the best interest of each to modify the Agreement on the
terms set forth in this Amendment.
Accordingly, the parties, intending to be legally bound, hereby agree
as follows:
1. Payment by the Company. Upon execution of this Amendment, the Company
will pay CNET [o o o] which is currently due and payable to CNET for
services performed and promotions provided under the Agreement prior to
the date of this Amendment.
2. Definitions. For the avoidance of doubt, the parties hereby agree that
the definitions of Impression, Retail Impression and Retail Promotion
are deleted in their entirety and replaced as follows:
"Impression" means a user exposure to a Retail Promotion or
page (at the Company's discretion to be determined on or
before June 1, 1999) on the CNET Sites or Snap Site, whichever
is relevant, as such exposure is reasonably determined and
measured by CNET or Snap, whichever is relevant, in accordance
with standard methodologies and practices customary in the
industry.
"Retail Impression" means Impressions of Retail Promotions
"Retail Promotions" means Banners, buttons, windows, portals,
branded text links appearing in Anchor Tenancies described in
Section 5 (or as otherwise agreed by Snap and the Company),
and other standard graphical promotions and advertising
offered by Snap or CNET now or in the future. All Retail
Promotions appear Above the Fold. For purposes of this
Agreement, "Above the Fold" means that a particular item on a
Web page is viewable on a computer screen at an 800 x 600
pixels resolution when the User first accesses such Web page,
without scrolling down to view more of the Web page.
3. Delivery of Promotions. Section 2.3 of the Agreement is hereby deleted
in its entirety and restated as follows:
2.3 Retail Promotions. CNET and Snap will provide various
Retail Promotions as follows:
(a) CNET will provide the Company with a total
of at least [o o o] Retail Impressions on
the CNET Sites, that may include, at CNET's
reasonable discretion (taking into
consideration, from time to time, the
reasonable requests of the Company), Retail
Promotions that appear on the first search
results page for searches on the following
key words within SEARCH.COM: [o o o]
(b) Snap will provide the Company with a total
of at least[o o o] Retail Impressions on the
standard version of the Snap web site with
the URL address of http://www.snap.com (the
"Snap Site"), that may include, at Snap's
reasonable discretion (taking into
consideration, from time to time, the
reasonable requests of the Company), Retail
Promotions that appear on the first search
results page for searches on the following
key words within Snap: [o o o].
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(c) CNET and Snap will use commercially
reasonable efforts to cause the Retail
Impressions to be delivered pro rata on a
monthly basis during the Term. If there are
Deficient Retail Impressions in any quarter
during the Term, then CNET or Snap (as the
case may be) will, at its option, either:
(i) over-deliver Impressions in the
succeeding quarter in an amount at least
equal to such number of Deficient Retail
Impressions; or (ii) agree to a pro rata
reduction in the payments due for the next
quarter. If CNET or Snap over-delivers
Retail Impressions in any quarter during the
Term, then CNET or Snap (as the case may be)
may, at its option, under-deliver
Impressions in the succeeding quarter in an
amount at least equal to such number of
over-delivered Retail Impressions. Company
will not be obligated to pay for any
over-delivered Retail Impressions existing
as of the last day of the Term.
4. Fees. Section 3.1(a) of the Agreement is hereby deleted in its
entirety, and the Company shall pay for all Impressions provided under
the Agreement during the Initial Term at the rate of [o o o]
Impressions [o o o]. All fees shall be due and payable by the Company
in advance on a quarterly basis in the amounts and on the dates
described in Exhibit C, and any failure by the Company to make such
payments on the tenth day following the date set forth in Exhibit C
will result in a material breach of the Agreement. Upon a breach of
this Section, CNET and Snap will have the option to (a) immediately
terminate this Agreement, or (b) charge interest on all unpaid amounts
at the rate of one and one-half percent (1.5%) per month (or the
maximum rate permitted by law, if less). If Company fails to make any
payment due hereunder, Company will be responsible for all reasonable
expenses (including attorneys' fees) incurred by CNET or Snap in
collecting any amounts actually due and payable. Further, during the
Initial Term, Snap and CNET shall split all Policy Fees described in
Section 3.1(b) of the Agreement on a pro rata basis.
5. Permanent Placements. Section 2.4 of the Agreement is hereby deleted in
its entirety and replaced as follows:
2.4 Snap agrees to provide Company with Permanent Placements
during the Term as follows:
(a) Anchor Tenant Sponsorship of the Snap Health
Insurance Center. Snap shall create a Health
Insurance Center that is linked to from the
Snap Insurance Center that currently resides
within the Business and Money channel on the
Snap Site. During the Term, Snap will
feature the Company as the Anchor Tenant (as
defined below) within the Health Insurance
Center and shall include the Company's
branding and logos, as reasonably determined
by a Snap Producer, provided that the
Company's logo shall be of a size which is
similar to that of the largest of the
various logos of the primary tenant in the
Snap Insurance Center. The Health Insurance
Center will promote and link to the
Company's content, tools, services and
Products, subject to the sole discretion of
a Snap Producer. All links to the Company in
the Health Insurance Center will be directed
to the Co-Branded Site, as described in
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Section 2.2. As the Anchor Tenant of the
Health Insurance Center, (a) the Company
will be the preferred content provider in
the Health Insurance Center and Snap will
include health insurance information and
related content provided by the Company in
such Health Insurance Center, (b) the
Company will receive a content area in the
Snap Insurance Center equivalent to [o o o]
of the content area used by the primary
tenant in such Insurance Center; provided,
however, that links on any sidebar or other
non-branded area of the Insurance Center
(e.g., "Insurance Resources" sidebar) will
not be considered when calculating the area
used by the primary tenant, irrespective of
whether such sidebar contains links to such
primary tenant, and all links, promotions
and content in the Snap Insurance Center are
subject to the sole discretion of Snap; and
(c) if Company content appears on the Snap
Insurance Center as described in subsection
(b), then the Company's logo will appear
Above the Fold in the Snap Insurance Center,
as
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reasonably determined by Snap. During the
Term of the Agreement, no Competitive
Business will receive fixed promotions
within the Health Insurance Center
comparable to or greater in quantity, size,
or value, or superior in position than that
provided to the Company in the Health
Insurance Center. Notwithstanding the
foregoing, the Company acknowledges that (a)
unpaid links may exist in the Snap Insurance
Center and Health Insurance Center to other
sites similar to or in competition with the
Company, (b) any links may exist in the
Health Insurance Center to other sites
containing information which the Company
does not possess or make available, or which
the Company is not the Best of Breed
provider (as defined below), and (c) nothing
herein gives the Company any rights or
guaranteed placements anywhere in the Snap
Insurance Center, except for the Health
Insurance Center. Should Snap desire to add
any specific content or functionality that
is necessary to maintaining the Co-Branded
Site as reasonably competitive and Best of
Breed as described below, then Snap will be
required to submit such request to
HealthAxis in writing and HealthAxis will be
given 14 days to fulfill such request.
Should HealthAxis fail to supply such
content or functionality to Snap's
satisfaction within the 14 days, then Snap
will be able to secure such content or
functionality from any other source.
Thereafter, when Company does fulfill the
requested content or functionality, then
Snap will immediately use HealthAxis'
version and cease to link to the other
provider. For purposes of this Section,
"Anchor Tenant" means a content provider
whose position is greater in size and
prominence than that of any non-affiliated
third party within the relevant Snap Site
page, and "Best of Breed" means (i) the most
advanced and commercially successful health
insurance Web site in terms of
functionality, performance, content, and
features, whether utilitarian or aesthetic,
and (ii) the ability of the Company Site and
the Co-Branded Site to scale easily with
only additional hardware and to accommodate,
at a minimum, the peak traffic volume of the
second or third most visited Internet health
insurance site.
(b) Co-Branded Site.
(i) Launch Date. The parties will use
diligent efforts to achieve a launch
date for the Co-Branded Site within
a reasonable time after June 1,
1999; provided, however, that if the
launch date does not occur within a
reasonable time due to the fault of
Company, then, for all purposes
herein, the launch date shall be
deemed to be the date that Snap was
ready and able to perform, and such
failure will be deemed a material
breach of the Agreement by Company.
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(ii) Co-Branded Site Described. Company
will develop the Co-Branded Site in
accordance with this Section 2.2,
and Snap will provide reasonable
assistance in connection therewith.
Unless otherwise mutually agreed to
by the parties, the Co-Branded Site
will provide all of the features and
functionality provided by, and will
perform in a manner substantially
identical to, the Company Site, as
the Company Site may be updated and
enhanced from time to time. Snap
acknowledges that Company may change
the design and functionality of the
Company Site from time to time, in
which case the design and
functionality of the Co-Branded Site
will be changed in a similar
fashion. Notwithstanding the
foregoing, Company will make all
changes to the Co-Branded Site
reasonably suggested by a Snap
Producer for editorial consistency
with the Snap Site.
(iii) Co-Branding Features. Each top-level
page on the Co-Branded Site will
include branding for Snap and
Company so that the parties' logos
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and other branding are both Above
the Fold and are of substantially
equivalent value and prominence to
each other. Each top-level page of
the Co-Branded Site will also
include appropriate navigation
features, such as an embedded link
on each Snap logo to the page of the
Snap Site from which the User
originated.
(iv) Hosting. Company will host the
Co-Branded Site on its servers (or
on servers within its control) and
will provide all computer hardware,
software and personnel necessary to
operate and maintain the Co-Branded
Site as a functional site accessible
to Users.
(v) Advertisements. Company shall own
and have the right to use or sell
all of the advertising inventory on
the Co-Branded Site. Company will
display advertising consistent with
the number, type, and placement of
advertising displayed on the Company
Site; provided, however, that all
advertisements on the Co-Branded
Site must also comply with Snap's
reasonable editorial guidelines in
effect from time to time. Company
will not display advertisements of
competitors to Snap on the
Co-Branded Site. Further, if any
advertisement on the Co-Branded Site
is reasonably deemed inappropriate
by Snap, Company shall upon notice
from Snap remove the advertisement
from the Co-Branded Site
immediately.
(vi) IP Masking. Using IP masking, the
URL for the Co-Branded Site will
begin with
http://snap.healthaxis.com or a
substantially similar URL. Company
agrees that Snap will be entitled to
count all page views of the
Co-Branded Site towards Snap's
traffic as measured by Media Metrix
(as a "Category Listing") and other
Internet traffic-auditing firms. In
addition, both parties will count
the traffic as a "Consolidated
Listing" as measured by Media
Metrix. Snap shall have the right to
provide a redacted copy of this
Amendment to an Internet
traffic-auditing firm in connection
with this Section. Furthermore,
simultaneous with the execution of
this Amendment, the parties shall
execute the letter to Media Metrix
set forth in Exhibit A attached
hereto (the "Media Metrix Letter").
6. Term and Termination.
6.1 Term. Section 4.1 of the Agreement is hereby deleted in its
entirety and replaced as follows:
Except for the provisions of Section 5, 7, 8, 9, 10
and 11 of the Agreement and Sections 11 through 16 of
this Amendment (which Sections shall continue in
effect), the term of this Agreement is hereby
suspended. Such term shall resume on June 1, 1999 and
shall end on August 31, 2000 (the "Initial Term").
6.2 Termination. Each party acknowledges and agrees that the
rights, duties and obligations of CNET and Snap hereunder are
independent of the other party, and that either CNET or Snap
may independently terminate under the Agreement (as amended
herein) for a breach by the Company that is not cured pursuant
to Section 4 of the Agreement. Any termination by CNET or Snap
shall not automatically result in a termination by the other.
Further, if CNET or Snap is in breach of the Agreement, the
Company may terminate the Agreement only as to the breaching
party, subject to Section 4 of the Agreement.
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7. Renewal Option.
7.1 Renewal Right. The Company may renew the Agreement on the terms of the
Agreement, as amended herein. Such renewal may be with CNET, Snap, or
both, provided that the Company is not obligated to enter into a
renewal agreement with either or both such parties.
7.1 Notification. Section 4.2 of the Agreement is hereby deleted
in its entirety and restated as follows:
The Company, at its option, may extend the Term for
an additional 12 month period beginning on September
1, 2000 and ending on August 31, 2001 (the "Renewal
Term") (the Initial Term and the Renewal Term
referred to as the "Term"). The Renewal Option may be
exercised by the Company notifying CNET and Snap in
writing during the period beginning June 1, 2000 and
ending June 30, 2000.
7.2 Promotions. During the Renewal Term with CNET, if any, CNET
will provide the Company with [o o o] Retail Impressions.
During the Renewal Term with Snap, if any, Snap will provide
the Company [o o o] Retail Impressions.
7.3 Payment. Section 3.2(b) of the Agreement is hereby deleted in
its entirety, and the Company shall pay for all Impressions
provided under the Agreement during the Renewal Term at the
rate of [o o o]. All fees shall be due and payable by the
Company in advance on a quarterly basis in the amounts and on
the dates described in Exhibit C, and any failure by the
Company to make such payments on the tenth day following the
date set forth in Exhibit C will result in a material breach
of the Agreement. Upon a breach of this Section, CNET and Snap
will have the option to (a) immediately terminate this
Agreement, or (b) charge interest on all unpaid amounts at the
rate of one and one-half percent (1.5%) per month (or the
maximum rate permitted by law, if less). If Company fails to
make any payment due hereunder, Company will be responsible
for all reasonable expenses (including attorneys' fees)
incurred by CNET or Snap in collecting any amounts actually
due and payable.
8. Exclusivity. Section 5 of the Agreement is hereby deleted and restated
in its entirety as follows:
Snap and CNET will each use its best efforts to
not negotiate with any third party with
respect to any agreement or arrangement to
provide Promotions for a Competitive
Business within its web site; provided,
however, that Snap and CNET will be given 14
days to cure any alleged breach of the
foregoing upon receiving written notice from
the Company of such alleged breach;
provided, however that if Snap or CNET,
whichever is relevant, agrees that such an
event has occurred by curing such breach,
and then the Company will not be required to
pay the breaching party for Retail
Impressions delivered during the period
while the breach continued. Further, if the
Company fails to exercise the Renewal Option
on the terms of Section 7.1, above, the
foregoing sentence shall terminate and shall
not be effective on Snap or CNET. Snap and
CNET will each use its best efforts to not
promote or display any type of Promotions
related to health insurance products for a
Company Competitor described on Exhibit B.
However, the foregoing restriction shall not
prevent Snap or CNET from promoting or
displaying, for any party (including a
Company Competitor), general branding
Promotions or any Promotions related to any
insurance products that are not reasonably
considered health insurance products. For
example, Snap may promote auto, home and
life insurance products for InsWeb, but may
not promote health insurance products for
InsWeb. Notwithstanding the foregoing, if
Snap or CNET promote or display a Promotion
related to a health insurance product for a
Company Competitor, Snap or CNET, as the
case may be, will have fourteen days after
receiving notice from the Company to remove
such Promotion. Failure to remove such
Promotion within such fourteen day period
will result in a breach of the Agreement by
the non-
5
<PAGE>
removing party. For the avoidance of doubt,
the Company specifically acknowledges that
Snap may enter into a promotion and
advertising agreement with InsWeb subject to
the limitations described above. Further,
the Company acknowledges that Snap and CNET
often do not control the advertising run on
co-branded sites or IP masked sites, and the
Company agrees that Snap or CNET,
respectively, will not be in breach of this
provision if Promotions for a Company
Competitor appear on a co-branded site which
is not controlled by such party. The
foregoing exclusivity will apply to Snap and
CNET until [o o o], at which time such
exclusivity will automatically and
permanently terminate unless the Renewal
Option is exercised according to the terms
of the Agreement. The parties acknowledge
that the foregoing exclusivity provisions
will not prevent Snap or CNET from
displaying text links and other references
to a Competitive Business as reasonably
necessary to provide appropriate editorial
and search related services (e.g. by
providing text links within articles and in
response to search results) within the Snap
or CNET Sites for which no consideration is
received by Snap or CNET, respectively.
9. Reporting. All types of reports delivered to CNET under Section
2.10(b) of the Agreement shall also be delivered to Snap during the
Term of this Amendment.
10. Co-Branded, High-Speed, and International Editions.
10.1 Co-Branded Editions. Company acknowledges that Snap produces
co-branded editions of the Snap Site for various resellers,
distributors and other licensees (collectively the
Distributors"). In some cases, such Distributors are entitled
to replace Snap's default content with other content within
their own co-branded editions of the Snap Site.
Notwithstanding the other provisions of this Agreement
(including the exclusivity provision in Section 8, above), if
any such Distributor has exercised its right to replace
Company's content with other content, then Snap will not be
required to display the Retail Promotions or Company's content
within such Distributor's co-branded edition of the Snap Site,
including, but not limited to, within the Health Insurance
Center. If Snap does display the Retail Promotions or
Company's content within a co-branded edition of the Snap
Site, such display will be governed by this Agreement.
10.2 International and High-Speed Editions Snap is currently
creating an enhanced, high-speed version of the Snap Web
service focused on rich media content (together with any
successor service(s) or site(s) thereof and any co-branded
editions of such service that have been or may be developed
for Snap's third party distribution partners and licensees,
the "Enhanced Site"). In addition, Snap is currently
considering creating one or more international editions of the
Snap Site to reflect appropriate localized and local partner
content ("International Editions") and may desire to include
localized media content from Company within the International
Site. Any Retail Impressions served on any Snap International
Edition will not count against the Retail Impression
obligations outlined in this Agreement without the express
written consent of the Company. Company agrees that Snap's
Enhanced Site and International Editions will be considered
separate and distinct from, and not subject to the terms of,
this Agreement unless Snap so chooses as follows. At Snap's
sole discretion, all terms and conditions contained in the
Agreement related to the "Snap Site" may also apply to the
Enhanced Site and/or the International Editions, and in such
case, any Retail Impressions required under the Agreement may
be delivered on the Enhanced Site, International Editions,
and/or the existing Snap Site. If Snap so chooses, Company
hereby acknowledges that Snap, in its sole discretion, shall
use appropriate content, promotions and other material
provided by Company within the Enhanced Site and may use such
materials on International Editions, and all licenses set
forth in the Agreement are hereby expanded to include the
Enhanced Site and International Editions. Company acknowledges
that the look and feel of the Enhanced Site will be designed
for a high-bandwidth audience and therefore may substantially
differ from the look and feel of the primary Snap Site.
Company further acknowledges that the look and feel of the
International Editions will be localized for the relevant
target audience (e.g., in terms of language,
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<PAGE>
culture, and ethnicity) and therefore may substantially differ
from the look and feel of the primary Snap Site.
11. Separate Parties. The parties acknowledge and agree that, to the extent
reasonably necessary for Snap to perform hereunder, Snap will have the
same rights granted to CNET in the Agreement. Further, the parties
acknowledge and agree that CNET and Snap are separate business
entities, and that any statement, promise, warranty, breach, action or
inaction by one shall not bind or be construed against the other.
12. Separate Agreements. The parties will use good faith efforts to create
and execute separate agreements for CNET and Snap reflecting the terms
set forth in the Agreement, as modified by this Amendment, on or before
June 1, 1999.
13. Press Release. Snap and the Company will work together in good faith to
issue a press release [o o o]. Further, CNET and the Company may work
together in good faith to issue a press release [o o o]. Except as
described above, no party will make any public statement or other
announcement (including without limitation, issuing a press release)
relating to the terms or existence of this Agreement without the prior
written approval of the other relevant party, and any violation of this
sentence will be deemed a material breach of the Agreement.
14. Construction. Upon the execution of this Amendment, each reference in
the Agreement to "this Agreement," "hereunder," "hereof," "herein," or
words of like import, and each reference in any document related
thereto, or executed in connection herewith, shall mean and be a
reference to the Agreement as amended hereby, and the Agreement and
this Amendment shall be read together and construed as one single
instrument.
15. Ratification. Except as specifically amended above, the Agreement and
any document related thereto or executed in connection therewith shall
remain in full force and effect and are hereby ratified and confirmed
in all respects.
16. No Waiver. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of either party under any document related
thereto, or constitute a waiver of any provision of any document
related thereto.
IN WITNESS WHEREOF, the parties have executed this Amendment effective the day
and year first written above.
CNET, INC. HEALTHAXIS, INC.
By:______________________________ By:______________________________
Name:____________________________ Name:____________________________
Title: __________________________ Title: __________________________
SNAP, LLC!
By:______________________________
Name:____________________________
Title: __________________________
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<PAGE>
EXHIBIT A
---------
Media Metrix Letter
April __, 1999
Dear Media Metrix:
HealthAxis.com, Inc. ("HealthAxis") desires that Snap! LLC receive the
credit for all page views of the Co-Branded Sites (as that term is defined in
the contract between Snap and HealthAxis dated April __, 1999), which include
sites located at the URL http://www.healthaxis.com.
Thus, by signing below, HealthAxis hereby agrees that Snap will be
entitled to count all page views of the Co-Branded Site towards Snap's traffic
as measured by Media Metrix as a "Category Listing." Further, HealthAxis and
Snap agree that each will receive credit in the "Consolidated Listing" of Media
Metrix. HealthAxis acknowledges that Snap may present this letter to Media
Metrix and other Internet traffic-auditing firms.
Sincerely,
HealthAxis.com, Inc.
By: __________________________
Name: ________________________
Title: _______________________
Countersigned:
- --------------------------------
Steve Spinner, Vice President SDG
for Snap! LLC
<PAGE>
EXHIBIT B
---------
Company Competitors
[o o o]
<PAGE>
EXHIBIT C
Payment Schedule
CNET:
- -----
Due Date Amount Due
-------- ----------
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
Snap:
- -----
Due Date Amount Due
-------- ----------
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
[o o o] [o o o]
10
