<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): January 7, 2000
---------------
PROVIDENT AMERICAN CORPORATION
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(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Pennsylvania 0-13591 23-2214195
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<S> <C> <C>
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
</TABLE>
2500 DeKalb Pike, Norristown, Pennsylvania 19401
-------------------------------------------------
(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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<PAGE>
Item 2. Acquisition or Disposition of Assets
The following information is qualified in its entirety by, and should be read in
conjunction with, the more detailed information and financial data, including
the Consolidated Financial Statements of the Company and its subsidiaries, and
the notes thereto, appearing in the Company's reports filed with the Securities
and Exchange Commission ("SEC"). Except for the historical information contained
herein, this Current Report on Form 8-K, contains certain forward-looking
statements regarding the Company's business and prospects that are based upon
numerous assumptions about future conditions which may ultimately prove to be
inaccurate and actual events and results may materially differ from anticipated
results described in such statements. Such forward-looking statements involve
risks and uncertainties, such as historical and anticipated losses; uncertainty
of future results, new business challenges, risks associated with brand
development, competition, funding; need for additional capital, management of
potential growth; dependence on key personnel, dependence on the Internet,
dependence on strategic alliances with Internet partners, ability to grow and
expand services, technological change and new application development, quality
assurance, risk of product-related claims, limited proprietary rights, reliance
on information processing systems, customer concentration, liability for
information transmitted through the Internet, uncertain acceptance of the
Internet as a medium for health insurance sales, risk capacity constrains;
system development and other risks, dependence on third party technology, rapid
technological change, risk of system failure, changes in the insurance industry,
insurance industry factors, health care reform legislation, government
regulation and legal uncertainties, control by Provident and UICI, potential
conflicts of interest, intercompany agreements not subject to arm's-length
negotiations, risk associated with the Year 2000, absence of dividends,
anti-takeover measures. Any one or a combination of these factors could have a
material adverse effect on the Company's business, financial condition and
results of operations. These forward-looking statements represent the Company's
judgment as of the date of this report. The Company disclaims, however, any
intent or obligation to update these forward-looking statements.
<PAGE>
BUSINESS COMBINATION WITH INSURDATA INCORPORATED
General
On December 6, 1999, HealthAxis.com, Inc. ("HealthAxis"), Insurdata
Incorporated ("Insurdata") and their respective parent corporations, Provident
American Corporation ("Provident" or "the Company") and UICI ("UICI") entered
into an Agreement and Plan of Merger (the "Merger Agreement") which sets forth
the terms and conditions under which Insurdata will be merged with and into
HealthAxis (the "Merger"). The merger was consummated and effective on January
7, 2000.
Merger Agreement
In accordance with the terms of the Merger Agreement, each outstanding
share of Insurdata common stock, no par value per share (the "Insurdata Common
Stock"), outstanding immediately prior to the effective date of the Merger (the
"Effective Date"), other than as otherwise provided in the Merger Agreement, was
converted into the right to receive 1.33 shares (the "Exchange Ratio") of
HealthAxis common stock (the "HealthAxis Common Stock"). The Company issued
21,807,567 shares of HealthAxis Common Stock to Insurdata shareholders. Of the
total of 42,392,381 shares of HealthAxis Common Stock outstanding, UICI received
18,943,678 shares of HealthAxis Common Stock, 2,439,885 shares of HealthAxis
Common Stock are held by the voting trust (described herein) and other
shareholders of Insurdata received 424,004 shares of HealthAxis Common Stock.
Each holder of Insurdata Common Stock who would otherwise have been
entitled to receive a fraction of a share of HealthAxis Common Stock (after
taking into account all of the shareholder's certificates) received cash, in
lieu thereof, equal to an amount determined by multiplying such fraction by
$15.00.
The Merger Agreement provides that each option to purchase shares of
Insurdata Common Stock under Insurdata's stock option plans which are
outstanding on the Effective Date, whether or not exercisable, shall be
converted into and become a right to purchase shares of HealthAxis Common Stock,
generally in accordance with the terms of the Insurdata stock option plans and
Insurdata option agreements pursuant to which such options were granted, except
that from and after the Effective Date, (i) the number of shares of HealthAxis
subject to each Insurdata option shall be equal to the number of shares of
Insurdata Common Stock subject to such option prior to the Effective Date
multiplied by the exchange ratio (with fractional shares rounded down to the
nearest share and cash being payable for any fraction of a share) and (ii) the
exercise price per share of HealthAxis Common Stock purchasable thereunder shall
be that specified in the Insurdata option divided by the exchange ratio (rounded
up to the nearest one hundredth).
The Merger is intended to constitute a reorganization under Section
368(a) of the Internal Revenue Code of 1986, as amended, and is being accounted
for as a purchase under generally accepted accounting principles.
2
<PAGE>
Shareholders' Agreement
In connection with the consummation of the Merger Agreement, Provident,
UICI, Michael Ashker, President and CEO of HealthAxis and Provident, and
HealthAxis entered into a shareholders' agreement (the "Shareholders'
Agreement"). Under the terms of the Shareholders' Agreement, the Board of
Directors of HealthAxis shall consist of up to nine members. UICI and Provident
each independently nominated three nominees to the board and, the remaining
three directors will be nominated by mutual agreement of Provident and UICI.
Each party is obligated to vote its shares in favor of the directors nominated
by the other party. This obligation terminates with respect to each party to the
Shareholders' Agreement upon such shareholder beneficially owning less than 20%
of the HealthAxis Common Stock on a fully diluted basis.
As stated in the Shareholders' Agreement the HealthAxis Board shall
initially consist of seven (7) members consisting of Ronald L. Jensen, Chairman
of UICI, Gregory T. Mutz, President and CEO of UICI and Dennis B. Maloney,
President and CEO of Insurdata being the initial UICI nominees, Michael Ashker,
Alvin H. Clemens, Chairman of Provident and HealthAxis and Edward W. LaBaron,
Jr., a Director of Provident being the initial Provident Nominees and Henry
Hager, a Director of Provident being one of the initial Nominees agreed to by
UICI and Provident.
Subject to certain limitations, the Shareholders' Agreement also
provides that UICI and Provident both have the right to purchase its
proportionate number, or any greater or lesser number, of any additional
securities that HealthAxis may, from time to time, propose to sell and issue.
HealthAxis is required to provide UICI and Provident prior written notice of its
intention to issue such additional securities. Upon receipt of this notice, UICI
and Provident have twenty days to agree to purchase their proportional shares,
or any greater or lesser number, for the price and upon the terms specified in
the notice. If UICI and Provident fail to exercise their purchase rights,
HealthAxis has twenty days to complete the sale of the securities at a price not
less than the price specified in the notice. This provision of the Shareholders'
Agreement terminates at such time as the HealthAxis Common Stock is registered
under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended.
In addition to the preemptive rights set forth above, the Shareholders'
Agreement also provides that Michael Ashker, UICI and Provident have the right
of first refusal to purchase shares of HealthAxis should one of the other
parties to such agreement desire to transfer his or its HealthAxis securities.
The party desiring to transfer his or its securities ("Offeror") must first
furnish the other parties (individually, an "Electing Party" and collectively,
the "Electing Parties") with written notice, at least twenty days prior to the
proposed transfer setting forth the terms of the offer to sell the HealthAxis
Securities. The Electing Parties have ten days from the receipt of notice to
elect to purchase that number of securities which equals the product of the
total number of shares of common stock then beneficially owned by the Electing
Party on a fully diluted basis, and a fraction, the numerator of which shall be
the number of securities to be transferred and the denominator which shall be
the total number of shares of common stock then beneficially owned by the
Electing Party on a fully diluted basis. If an Electing Party fails to exercise
its right to purchase, or exercises its right to a portion smaller than it is
entitled, the Offeror has ten days to sell any remaining securities at the price
and on terms no less favorable than specified in the offer to the Electing
Parties. This provision of the Shareholders' Agreement terminates at such time
as the HealthAxis Common Stock is registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended.
3
<PAGE>
Subject to certain conditions set forth in the Shareholders' Agreement,
the Shareholders' Agreement also provides that HealthAxis can cause UICI to
transfer up to 1,255,000 shares of its HealthAxis Common Stock to unaffiliated
third parties.
The Shareholders' Agreement also provides UICI with the right, in its
sole and absolute discretion, to approve: (i) the calculation of the amount and
amortization period of all goodwill and other intangibles created in connection
with the Merger, subject to compliance with generally accepted accounting
principles; and (ii) provided UICI owns at least 20% of the HealthAxis Common
Stock, the entering into of any merger or similar agreement between Provident
and HealthAxis. In a separate letter to the Company and Provident, dated
December 6, 1999, UICI indicated that it would vote in favor of a business
combination between Provident and HealthAxis on the following terms:
1. UICI reserves the right to assess and approve in its
reasonable discretion the mathematical calculation of the merger terms
(e.g., calculation of the merger exchange ratio and methodology
employed to calculate the merger exchange ratio).
2. UICI must have received an opinion of counsel or other
reasonable assurance that the merger, viewed alone and together with
the merger of HealthAxis and Insurdata, will be tax free to the
constituent corporations and UICI; and
3. UICI reserves the right to make any and all reasonable and
appropriate due diligence inquiries it and its counsel deem advisable
with respect to any contingent claims or residual liabilities that may
reside at Provident American Corporation. In the event that UICI
determines that there may be an unacceptable level of risk associated
with such claims or liabilities, UICI may require that provision for
such claims, contingencies and/or residual liabilities be made either
(a) in the form of an appropriate reserve, escrow, holdback or similar
arrangement or (b) by means of an appropriate indemnity with respect to
such liabilities from a credit-worthy third party. In either event,
UICI will be willing to set an appropriate cap on such reserve, escrow,
holdback or indemnity and limit the time period during which such
reserve, escrow, holdback or indemnity will be in effect.
4
<PAGE>
Voting Trust Agreement
The Merger Agreement also provides for a voting trust agreement (the
"Voting Trust Agreement") which established a trust to hold shares of Insurdata
Common Stock which are currently held of record by UICI, but as to which UICI
has granted options to purchase such shares to certain employees of Insurdata
pursuant to its Insurdata Founders' Program. These shares were converted into
2,439,885 shares of HealthAxis Common Stock in the Merger. The initial trustees
of this trust are Michael Ashker, Alvin Clemens, Edward W. LaBaron, Jr. and
Henry Hager (the "Trustees"). All of the initial Trustees are also directors of
Provident and Messrs. Ashker and Clemens are also directors and officers of
HealthAxis. Pursuant to the terms of the Voting Trust Agreement, a majority of
the Trustees have the power to vote the shares held by the trust in their
discretion at all meetings of shareholders or pursuant to actions by unanimous
consent. The Voting Trust Agreement terminates upon the earlier of the
distribution of the shares subject to such agreement or July 1, 2003. Upon the
termination of this Voting Trust Agreement or upon any dissolution or total or
partial liquidation of HealthAxis, whether voluntary or involuntary, the
Trustees shall direct that all Shares remaining in the Trust and all moneys,
securities, rights or property attributable to the Shares be distributed to
UICI.
Technology Outsourcing Agreement
The Merger Agreement also provides that UICI and its affiliates and
Insurdata shall enter into a Technology Outsourcing Agreement pursuant to which
Insurdata will provide UICI and its affiliates with technology support services,
data processing services and other software and hardware based services. The
Technology Outsourcing Agreement is attached as Exhibit 10.1 hereto.
UICI Registration Rights Agreement
HealthAxis and UICI also entered into a registration rights agreement
which provides for the registration of HealthAxis shares received by UICI in the
Merger.
5
<PAGE>
Item 7. Financial Statements and Exhibits
(a) Financial Statements of business acquired.
Insurdata Incorporated and Subsidiaries Consolidated Financial
Statements for the years ended December 31, 1996, 1997 and 1998 and
Nine months ended September 30, 1998 and 1999 with Report of
Independent Auditors will be filed by amendment with the Commission not
later than 60 days after the date that this Form 8-K must be filed with
the Commission.
(b) Pro-forma Financial Information.
The following proforma financial information will be filed by
amendment with the Commission not later than 60 days after the date
that this Form 8-K must be filed with the Commission:
(i) Unaudited pro-forma condensed consolidated balance sheet at
September 30, 1999
(ii) Unaudited pro-forma condensed consolidated statement of
operations for the nine months ended September 30, 1999
(iii) Unaudited pro-forma condensed consolidated statement of
operations for the year ended December 31, 1998
(c) Exhibits.
The following exhibits are filed herewith:
<TABLE>
<CAPTION>
S-K Item
Number Description
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<S> <C>
10.1 Technology Outsourcing Agreement dated January 3, 2000
10.2 Shareholders Agreement dated January 7, 2000
99.1 Press Release dated January 10, 2000 - HealthAxis.com Completes Insurdata Merger
99.2 Agreement and Plan of Merger between Provident, HealthAxis, UICI and Insurdata Incorporated
dates as of December 6, 1999. (Incorporated by reference to Exhibit 99.3 of the Form 8-K dated
December 6, 1999 filed with the SEC on December 13, 1999.)
99.3 Form of Voting Trust Agreement among UICI and Messrs. Ashker, Clemens, LaBaron and Hager.
(Incorporated by reference to Exhibit 99.5 of the Form 8-K dated December 6, 1999 filed with
the SEC on December 13, 1999.)
99.4 Form of Registration Rights Agreement between HealthAxis and UICI.(Incorporated by reference to
Exhibit 99.10 of the Form 8-K dated December 6, 1999 filed with the SEC on December
13, 1999.)
99.5 Letter Agreement dated December 6, 1999 between UICI, HealthAxis and
Provident. (Incorporated by reference to Exhibit 99.11 of the Form 8-K dated
December 6, 1999 filed with the SEC on December 13, 1999.)
</TABLE>
6
<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
Date: January 20, 2000 By: /s/ Francis L. Gillan III
-------------------------
Francis L. Gillan III
Chief Financial Officer and
Treasurer
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
S-K Item
Number Description
- -------- -----------
<S> <C>
10.1 Technology Outsourcing Agreement dated January 3, 2000
10.2 Shareholders Agreement dated January 7, 2000
99.1 Press Release dated January 10, 2000 - HealthAxis.com Completes Insurdata Merger
99.2 Agreement and Plan of Merger between Provident, HealthAxis, UICI and Insurdata Incorporated
dates as of December 6, 1999. (Incorporated by reference to Exhibit 99.3 of the Form 8-K dated
December 6, 1999 filed with the SEC on December 13, 1999.)
99.3 Form of Voting Trust Agreement among UICI and Messrs. Ashker, Clemens, LaBaron and Hager.
(Incorporated by reference to Exhibit 99.5 of the Form 8-K dated December 6, 1999 filed with
the SEC on December 13, 1999.)
99.4 Form of Registration Rights Agreement between HealthAxis and UICI.(Incorporated by reference
to Exhibit 99.10 of the Form 8-K dated December 6, 1999 filed with the SEC on December
13, 1999.)
99.5 Letter Agreement dated December 6, 1999 between UICI, HealthAxis and Provident. (Incorporated
by reference to Exhibit 99.11 of the Form 8-K dated December 6, 1999 filed with the SEC on
December 13, 1999.)
</TABLE>
8
<PAGE>
INFORMATION TECHNOLOGY SERVICES AGREEMENT
BY AND BETWEEN
UICI
AND
INSURDATA INCORPORATED
January 3, 2000
<PAGE>
<TABLE>
TABLE OF CONTENTS
Page
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1. BACKGROUND AND OBJECTIVES..................................................................................1
2. DEFINITIONS AND DOCUMENTS..................................................................................2
2.1 Definitions.......................................................................................2
2.2 Other Terms.......................................................................................6
2.3 Associated Contract Documents.....................................................................6
3. TERM.......................................................................................................6
3.1 Initial Term......................................................................................6
3.2 Extension.........................................................................................7
4. SERVICES...................................................................................................7
4.1 Overview..........................................................................................7
4.2 Transfer Assistance Services......................................................................7
5. REQUIRED CONSENTS.........................................................................................10
6. FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED
WITH THE PROVISION OF SERVICES............................................................................10
6.1 Service Facilities...............................................................................10
6.2 Software.........................................................................................12
6.3 Equipment........................................................................................12
6.4 Third Party Contracts............................................................................13
6.5 License to UICI Software.........................................................................13
6.6 Insurdata Assets; Shared Assets..................................................................13
6.7 Access to Third Party Software and Maintenance...................................................14
6.8 Notice of Defaults...............................................................................14
7. SERVICE LEVELS............................................................................................14
7.1 General..........................................................................................14
7.2 Service Level Credits............................................................................14
7.3 Problem Analysis.................................................................................15
7.4 Continuous Improvement Reviews...................................................................15
7.5 Measurement and Monitoring.......................................................................15
8. PROJECT PERSONNEL.........................................................................................15
8.1 Key Insurdata Personnel..........................................................................15
8.2 Insurdata Project Executive......................................................................16
8.3 Insurdata Personnel Are Not UICI Employees.......................................................16
8.4 Replacement, Qualifications, and Retention of Insurdata Personnel................................17
8.5 Conduct of Insurdata Personnel...................................................................17
8.6 Substance Abuse..................................................................................17
8.7 Hiring of Employees..............................................................................18
8.8 Assignment of Personnel..........................................................................18
9. INSURDATA RESPONSIBILITIES................................................................................18
9.1 Policy and Procedures Manual.....................................................................18
9.2 Cooperation with UICI Third Party Contractors....................................................18
9.3 Reports..........................................................................................19
9.4 Meetings.........................................................................................19
9.5 Quality Assurance................................................................................20
</TABLE>
<PAGE>
<TABLE>
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9.7 Change Control...................................................................................20
9.8 Software Currency................................................................................20
9.9 Year 2000 Compliance.............................................................................20
9.11 Audit Rights.....................................................................................21
9.12 Subcontractors...................................................................................22
10. UICI RESPONSIBILITIES.....................................................................................23
10.1 Responsibilities.................................................................................23
11. CHARGES...................................................................................................23
11.1 General..........................................................................................23
11.2 Incidental Expenses..............................................................................24
11.3 Taxes............................................................................................24
11.4 New Services and Projects........................................................................25
11.5 Proration........................................................................................26
11.6 Refundable Items.................................................................................26
11.7 Most Favored Nations Pricing.....................................................................26
12. INVOICING AND PAYMENT.....................................................................................27
12.1 Invoicing........................................................................................27
12.2 Set Off..........................................................................................27
12.3 Disputed Charges.................................................................................27
12.4 No Implied Charges...............................................................................28
12.5 Records..........................................................................................28
12.6 Late Payment.....................................................................................28
13. UICI DATA AND OTHER PROPRIETARY INFORMATION...............................................................28
13.1 UICI Ownership of UICI Data......................................................................28
13.2 Safeguarding UICI Data...........................................................................29
13.3 Confidentiality..................................................................................29
13.4 File Access......................................................................................31
14. OWNERSHIP OF MATERIALS....................................................................................31
14.1 UICI Owned Materials.............................................................................31
14.2 Developed Materials..............................................................................31
14.3 Other Materials..................................................................................32
14.4 General Rights...................................................................................32
14.5 UICI Rights Upon Expiration or Termination of Agreement..........................................33
15. REPRESENTATIONS AND WARRANTIES............................................................................33
15.1 Work Standards...................................................................................33
15.2 Maintenance......................................................................................33
15.3 Efficiency and Cost Effectiveness................................................................33
15.4 Developed Materials..............................................................................34
15.5 Non-Infringement.................................................................................34
15.6 Authorization....................................................................................34
15.7 Malicious Code...................................................................................35
15.8 Disabling Code...................................................................................35
15.9 Compliance with Laws.............................................................................35
15.10 Remedy...........................................................................................35
15.11 Disclaimer of Warranties.........................................................................35
</TABLE>
<PAGE>
<TABLE>
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16. INSURANCE AND RISK OF LOSS................................................................................36
16.1 Insurance........................................................................................36
16.2 Risk of Loss.....................................................................................37
17. INDEMNITIES...............................................................................................37
17.1 Indemnity by Insurdata...........................................................................37
17.2 Indemnity by UICI................................................................................38
17.3 Additional Indemnities...........................................................................38
17.4 Infringement.....................................................................................38
17.5 Indemnification Procedures.......................................................................39
17.6 Indemnification Procedures -- Governmental Claims................................................40
17.7 Subrogation......................................................................................40
18. LIABILITY.................................................................................................40
18.1 General Intent...................................................................................40
18.2 Force Majeure....................................................................................40
18.3 Limitation of Liability..........................................................................41
19. CONTRACT GOVERNANCE AND DISPUTE RESOLUTION................................................................42
19.1 Informal Dispute Resolution......................................................................42
19.2 Binding Arbitration..............................................................................43
19.3 Jurisdiction.....................................................................................43
19.4 Continued Performance............................................................................43
19.5 Governing Law....................................................................................43
19.6 Expiration of Claims.............................................................................44
20. TERMINATION...............................................................................................44
20.1 Termination for Cause............................................................................44
20.2 Critical Services................................................................................45
20.3 Termination for Convenience......................................................................45
20.4 UICI's Right to Extend the Termination Date......................................................45
20.5 Termination upon Insurdata Change of Control.....................................................45
20.6 Equitable Remedies...............................................................................45
21. GENERAL...................................................................................................46
21.1 Binding Nature and Assignment....................................................................46
21.2 Entire Agreement; Amendment......................................................................46
21.3 Compliance with Laws and Regulations.............................................................47
21.4 Notices..........................................................................................47
21.5 Counterparts.....................................................................................48
21.6 Headings.........................................................................................48
21.7 Relationship of Parties..........................................................................48
21.8 Severability.....................................................................................48
21.9 Consents and Approval............................................................................48
21.10 Waiver of Default; Cumulative Remedies...........................................................49
21.11 Survival.........................................................................................49
21.12 Publicity........................................................................................49
21.13 Service Marks....................................................................................49
21.14 Export...........................................................................................49
21.15 Third Party Beneficiaries........................................................................49
21.16 Order of Precedence..............................................................................50
21.17 Further Assurances...............................................................................50
21.18 Liens............................................................................................50
21.19 Covenant of Good Faith...........................................................................50
21.20 Acknowledgment...................................................................................50
21.21 Related Entities.................................................................................50
21.22 Remarketing......................................................................................50
</TABLE>
<PAGE>
SCHEDULES
A Key Insurdata Positions and Critical Support Personnel
B Services
C Service Levels and Performance Credits
D Insurdata Charges
E UICI Facilities
F Insurdata Facilities
G Eligible Recipients
H Reports
<PAGE>
INFORMATION TECHNOLOGY SERVICES AGREEMENT
This Information Technology Services Agreement (the "Agreement") is
entered into effective January 3, 2000 (the "Effective Date") by and between
UICI, a Delaware corporation having offices at 4001 McEwen, Suite 200, Dallas,
Texas 75244 ("UICI"), and Insurdata Incorporated, a Texas corporation having
offices at 5215 N. O'Connor Blvd., Suite 800, Irving, Texas 75039 ("Insurdata").
R E C I T A L S:
WHEREAS, prior to the Effective Date, Insurdata performed for UICI and
its affiliates certain information technology services pursuant to the Existing
Agreements;
WHEREAS, UICI, Provident American Corporation, HealthAxis.com, Inc.
("HealthAxis") and Insurdata, have entered into that certain Agreement and Plan
of Merger dated December 6, 1999 (the "Merger Agreement") pursuant to which
Insurdata will be merged with and into HealthAxis;
WHEREAS, it is a condition precedent of the closing of the transaction
contemplated by the Merger Agreement that UICI and Insurdata enter into this
Agreement pursuant to which Insurdata shall provide to UICI and its affiliates
those information technology services that were provided pursuant to the
Existing Agreements, as well as the other information technology services
described herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and of other good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged, UICI and Insurdata (collectively,
the "Parties", and each, a "Party") hereby agree as follows:
1. BACKGROUND AND OBJECTIVES
1.1 UICI and Insurdata desire to amend and restate the terms and conditions
pursuant to which Insurdata provides certain information technology
services pursuant to the Existing Agreements.
1.2 The Parties acknowledge and agree that the specific goals and
objectives of the Parties in entering into this Agreement are to:
o Provide services that meet UICI's and the Eligible Recipients'
needs and show steady improvement;
o Align information technology with business drivers;
o Permit UICI and the Eligible Recipients to focus their
internal resources on their core competencies;
o Accelerate the deployment of a single integrated information
technology strategy;
o Provide better cost visibility and variability to UICI and the
Eligible Recipients for improved cost management and
information technology investment leverage; and
o Reduce information technology assets as appropriate.
1.3 The provisions of this Article 1 are intended to be a general
introduction to this Agreement and are not intended to expand the scope
of the Parties' obligations or alter the plain meaning of this
Agreement's terms and conditions, as set forth hereinafter. However, to
the extent the terms and conditions of this Agreement are unclear or
ambiguous, such terms and conditions are to be construed so as to be
consistent with the background and objectives set forth in this Article
1.
1
<PAGE>
2. DEFINITIONS AND DOCUMENTS
2.1 Definitions
As used in this Agreement:
"Affiliate" means, generally, with respect to any Entity, any other
Entity Controlling, Controlled by or under common Control with such
Entity.
"Agreement" shall have the meaning given such term in the preamble to
this Agreement.
"Charges" means the amounts set forth in this Agreement as charges for
the Services.
"Change of Control" shall have the meaning set forth in Section 20.5
hereof.
"Control" and its derivatives mean the legal, beneficial or equitable
ownership, directly or indirectly, of 50% or more of the aggregate of
all voting equity interests in an Entity or equity interests having the
right to 50% or more of the profits of an Entity or, in the event of
dissolution, to 50% or more of the assets of an Entity and, in the case
of a general partnership, also includes the holding by an Entity (or
one of its Affiliates) of the position of sole general partner.
"Critical Support Personnel" means those Insurdata Personnel identified
in Schedule A as critical to the ongoing success of Insurdata's
delivery of information technology services to UICI and the Eligible
Recipients.
"Data Center" means any controlled, consolidated and specialized
location where computing equipment (e.g., mainframe, midrange,
telecommunications or server hardware) resides for the delivery of the
Services to UICI as set forth in Schedules E and F.
"Developed Materials" shall mean all Materials developed by Insurdata
to perform its obligations under this Agreement or under the Existing
Agreements.
"Effective Date" shall have the meaning given such term in the preamble
to this Agreement.
"Eligible Recipients" means the Entities listed in Schedule G.
"End User" means UICI and all Eligible Recipients designated by UICI to
receive Services provided by Insurdata, and the Personnel of each of
them.
"Entity" means a corporation, partnership, joint venture, trust,
limited liability company, association, or other organization or legal
entity.
"Equipment" means all mainframe, midrange, distributed, network,
telecommunications and related computing equipment procured, provided,
operated, supported or used by Insurdata and required to perform the
Services.
"Equipment Leases" means all leasing arrangements whereby UICI leases
Equipment that will be used by Insurdata to perform the Services.
"Event of Loss" shall have the meaning given such term in Section 16.2.
"Excluded Agreements" means each of the following, as amended:
(a) License and Services Agreement dated January 1, 1999, between
UICI Administrators, Inc. and Insurdata; and
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(b) Agreement dated April 12, 1999, effective May 1, 1999, between
The MEGA Life and Health Insurance Company and Mid West
National Life Insurance Company of Tennessee and Insurdata
Imaging Services, LLC.
"Existing Agreements" means each of the following, as amended:
(a) Shared Processing Facilities Agreement dated February 2, 1998
between Educational Finance Group, Inc., the Insurance Center
and Insurdata;
(b) MIS Agreement for Services effective as of April 1, 1997
between The MEGA Life and Health Insurance Company and
Insurdata;
(c) MIS Agreement for Services effective as of January 1, 1998
between Educational Finance Group, Inc. and Insurdata; and
(d) Letter Agreement, dated February 9, 1998 between National
Motor Club and Insurdata.
"Existing Materials" shall have the meaning given such term in Section
14.1.
"Fixed Price Project" shall mean a Project with respect to which
Insurdata has quoted a fixed price in accordance with the scope,
specifications, scheduling and other criteria contained in Section
11.4(a) hereof.
"Insurdata Facilities" means the facilities owned or leased by
Insurdata. For the avoidance of doubt, Insurdata Facilities include any
facilities leased to Insurdata by UICI or other Eligible Recipients,
including the facilities leased to Insurdata pursuant to that certain
Office Lease between The MEGA Life and Health Insurance Company Real
Estate Division and Insurdata.
"Insurdata Personnel" means Personnel of Insurdata who are assigned to
perform any Services under this Agreement.
"Insurdata Project Executive" shall have the meaning given such term in
Section 8.2 and shall describe the Insurdata representative responsible
for both the day-to-day relationship with UICI, as well as the delivery
of the Services to UICI.
"Include" and its derivatives mean "including, without limitation".
This term is as defined, whether or not capitalized in this Agreement.
"Key Insurdata Personnel" means the Insurdata Personnel filling the
positions designated in Schedule A as Key Insurdata Personnel.
"Laws" mean all federal, state and local laws, statutes, regulations,
rules, executive orders, supervisory requirements, directives,
interpretive letters and other official releases of or by any
government, or any authority, department or agency thereof.
"Losses" mean all losses, liabilities, damages and claims (including
taxes), and all related costs and expenses (including reasonable legal
fees and disbursements and reasonable costs of investigation,
litigation, settlement, judgment, interest and penalties).
"Malicious Code" means (i) any code, program, or sub-program whose
knowing or intended purpose is to damage or interfere with the
operation of the computer system containing the code, program or
sub-program, or to intentionally halt, disable or interfere with the
operation of the Software, code, program, or sub-program, itself, or
(ii) any device, method, or token that permits any person to circumvent
the normal security of the Software or the system containing the code.
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"Materials" means, collectively, Software, literary works, other works
of authorship, specifications, design documents and analyses, programs,
program listings, programming tools, documentation, reports, drawings
and similar work product.
"New Services" means services, functions and responsibilities that are
not described on Schedule B or otherwise provided for in this
Agreement.
"Out-of-Pocket Expenses" means reasonable and actual out-of-pocket
expenses incurred by Insurdata for which Insurdata is entitled to be
reimbursed by UICI under this Agreement.
"Performance Standards" means, individually and collectively, (i) the
Service Levels and the other quantitative and qualitative performance
standards and commitments for the Services contained in Schedule C and
(ii) all Laws applicable to the provision of the Services.
"Personnel" means, with respect to an Entity, the employees, agents,
contractors and representatives of such Entity.
"Policy and Procedures Manual" means the current versions of:
(a) the NRH Data Center Operations Procedures, Vols. I-III;
(b) the Insurance Center Policy & Procedures, Maintenance Request,
Version 1.5;
(c) the Production Center Policy & Procedures, Version 2;
(d) the NRH Data Center Disaster Recovery Plan, Release 1.1,
updated September 20, 1998;
(e) the Methodology Overview for Insur-Method Life Cycle, and
each guide for each stage of the life cycle described therein;
and
(f) the Insur-Method Project Management Handbook, version 2.5;
March 1998.
"Project" shall mean any initiative requested to be undertaken that is
expected to require at least 128 man-hours to complete.
"Proprietary Information" shall have the meaning given such term in
Section 13.3.
"Reports" shall have the meaning given such term in Section 9.3.
"Required Consent Costs" shall have the meaning given such term in
Section 5.
"Required Consents" means: (a) the consents (if any) required to be
obtained (i) to grant Insurdata the right to use and/or access the UICI
Owned Software and Third Party Software in connection with providing
the Services or (ii) to assign or transfer to UICI any Developed
Materials; and (b) all other consents required from third parties in
connection with Insurdata's provision of the Services.
"Root Cause Analysis" means a formal process that diagnoses systemic or
catastrophic problems to determine what corrective action should be
taken to eliminate repeat failures.
"Service Taxes" means all sales, lease, service, value-added, use,
personal property, excise, consumption, and other taxes or duties that
are assessed against either Party on the provision of the Services as a
whole, or on any particular Service received by UICI or the Eligible
Recipients from Insurdata.
"Services" means, collectively the services, functions and
responsibilities set forth in Article 4 and Schedule B as they may be
supplemented, enhanced, modified or replaced by mutual agreement during
the Term in accordance with this Agreement.
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"Service Levels" means the quantitative performance standards for the
Services set forth in Schedule C.
"Service Level Credits" shall have the meaning given such term in
Section 7.2 and Schedule C.
"Software" means software programs (including compilers, database
management software, applications software, system software, utilities
and other software programs), all associated documentation and all
versions, upgrades and enhancements to the same.
"Subcontractors" means subcontractors of Insurdata, including those
approved in writing by UICI.
"Term" means the five (5) year period that commences as of 12:00:01
a.m., EST, on the Effective Date and continues, unless this Agreement
is terminated as provided herein or extended as provided in Sections
3.2 or 20.5, in which case the Term shall end at 12:00 midnight on the
effective date of such termination or the date to which this Agreement
is extended.
"Third Party Contracts" means all written third party agreements with
UICI or the Eligible Recipients that have been used to provide the
Services, including licenses to Third Party Software and other UICI
Licensed Materials.
"Third Party Software" means all Software products (and all
modifications, replacements, upgrades, enhancements, documentation,
materials and media related thereto) that are owned by third parties
and used by Insurdata to provide the Services.
"Transfer Assistance Services" means the termination/expiration
assistance requested by UICI to allow the Services to continue without
material interruption or material adverse effect, and to facilitate the
orderly transfer of the Services to UICI or its designee, as such
assistance is further described in Section 4.2.
"UICI Data" means any data or tangible information of UICI or any
Eligible Recipient that is provided by UICI or any Eligible Recipient
to Insurdata in the performance of its obligations under this
Agreement, including data and information with respect to the
businesses, customers, operations, facilities, products, consumer
markets, assets and finances of UICI or any Eligible Recipient. UICI
Data also shall mean any data or information created, generated,
collected or processed by Insurdata to provide the Services. Examples
of UICI Data include any of the foregoing that are data processing
input and output, service level measurements, asset information, third
party service and product agreements, contract charges, and retained
and pass-through expenses. UICI Data shall not include any data or
tangible information relating to Insurdata's customer list; Insurdata's
employment relationship with Insurdata employees; the manner in which
Insurdata operates; technology that relates to the Insurdata business
and not to the UICI business; facilities of Insurdata; consumer markets
for services or products of Insurdata; Insurdata products; Insurdata
capacities; Insurdata systems; Insurdata procedures; Insurdata security
practices at Insurdata Facilities; research, templates and development
conducted by Insurdata that is not paid for by UICI; Insurdata business
affairs; and Insurdata finances.
"UICI Equipment" means Equipment owned by or leased to UICI or an
Eligible Recipient. UICI Equipment currently used by Insurdata as of
the Effective Date is set forth in Schedule E.
"UICI Facilities" means the facilities provided by UICI or the Eligible
Recipient for the use of Insurdata to the extent necessary to provide
the Services.
"UICI Licensed Materials" means Third Party Software and other
Materials that are proprietary to third parties to which UICI has
obtained a license pursuant to a written agreement with such third
party.
"UICI Owned Materials" shall mean: (a) the Materials owned by UICI or
an Eligible Recipient as of the Effective Date, and all enhancements
and derivative works of such Materials, including United States and
foreign intellectual property rights in such Materials, and (b) the
Developed Materials.
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"UICI Owned Software" means Software owned by UICI.
"UICI Personnel" means the employees, agents, contractors or
representatives of UICI.
"UICI Project Executive" shall have the meaning given such term in
Section 10.1.
"UICI Sites" or "Sites" means the offices or other facilities listed on
Schedule E at or to which Insurdata is to provide the Services.
"UICI Software" means Software that is either: (a) UICI Licensed
Materials; or (b) UICI Owned Materials.
"UICI Third Party Contractors" shall have the meaning given such term
in Section 9.2.
"Year 2000 Compliant" or "Year 2000 Compliance" shall have the meaning
given such term in Section 9.8(a).
2.2 Other Terms
The terms defined in this Article include the plural as well as the
singular. Unless otherwise expressly stated, the words "herein,"
"hereof," and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section,
subsection or other subdivision. Article, Section, subsection and
Schedule references refer to articles, sections and subsections of, and
schedules to, this Agreement. The words "include" and "including" shall
not be construed as terms of limitation. The words "day," "month," and
"year" mean, respectively, calendar day, calendar month and calendar
year, and the words "writing" or "written" mean preserved or presented
in retrievable or reproducible written form. Except as provided in this
Agreement, "writing" or "written" may mean electronic (including e-mail
transmissions where receipt is acknowledged by the recipient, but
excluding voice mail) or hard copy, including by facsimile (with
acknowledgment of receipt from the recipient's facsimile machine),
unless otherwise stated. Other terms used in this Agreement are defined
in the context in which they are used and shall have the meanings there
indicated.
2.3 Associated Contract Documents
This Agreement includes each of the following schedules and their
attached exhibits, all of which are attached to this Agreement and
incorporated into this Agreement by this reference:
A Key Insurdata Positions and Critical Support Personnel
B Services
C Service Levels and Performance Credits
D Insurdata Charges
E UICI Facilities
F Insurdata Facilities
G Eligible Recipients
H Reports
3. TERM
3.1 Initial Term
This Agreement shall begin on the Effective Date and continue
throughout the Term, unless terminated earlier or extended in
accordance with this Agreement.
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3.2 Extension
By giving prior written notice to Insurdata not less than 14 months
prior to the expiration date of the initial Term, UICI shall have the
right, and Insurdata shall have the obligation, to negotiate in good
faith during a period of sixty (60) days the renewal prices, terms and
conditions upon which the term of the Agreement may be extended for a
period of three (3) years following the expiration date of the initial
Term. If the Parties are unable to reach agreement upon renewal prices,
terms and conditions during the sixty-day negotiation period, the
Agreement will expire at the end of the initial Term.
4. SERVICES
4.1 Overview
(a) Description. Commencing on the Effective Date, Insurdata shall
provide the Services to UICI and to the Eligible Recipients.
The Services shall consist of the services, functions and
responsibilities as set forth in this Agreement (including
obligations of performance set forth in the Policy and
Procedures Manual) and any subtasks that are not specifically
described in this Agreement but which are an inherent,
necessary or customary part of the same services, which
subtasks shall be deemed to be included within the scope of
the Services to be delivered for the base Charges as if such
subtasks were specifically described in this Agreement.
Except as otherwise expressly provided in this Agreement, UICI
shall be responsible for providing the facilities, Equipment,
Third Party Software and other resources necessary for
Insurdata to provide the Services. Insurdata will provide
technical support, as well as recommendations for UICI
Facilities, Equipment and Third Party Software.
(b) Exclusivity. Nothing in this Agreement shall be construed as a
requirements contract and notwithstanding anything to the
contrary contained herein, this Agreement shall not be
interpreted to prevent UICI or any Eligible Recipient from
obtaining from third parties, or providing to itself, any or
all of the services described in this Agreement. Nothing in
this Agreement shall be construed or interpreted as limiting
UICI's right or ability during the Term to increase or
decrease the demand for Services.
4.2 Transfer Assistance Services
(a) Availability. As part of the Services, and pursuant to the
rates and Charges provided for herein, Insurdata shall provide
to UICI or UICI's designee the Transfer Assistance Services in
this Agreement.
(i) Insurdata shall provide such Transfer Assistance
Services to UICI or its designee (i) commencing up to
six (6) months prior to the expiration of the Term or
on such earlier date as UICI may request and
continuing for up to six (6) months following the
effective date of the expiration of the Term (as such
effective date may be extended pursuant to Section
3.2), (ii) commencing upon any notice of termination
of the Term with respect to all of the Services, and
continuing for up to six (6) months following the
effective date of such termination (as such effective
date may be extended pursuant to Section 20.4), (iii)
commencing upon notice of termination of the Services
to an Eligible Recipient no longer Controlled by UICI
and continuing for up to six (6) months following the
effective date of such termination (as such effective
date may be extended pursuant to Section 20.4),
provided such Eligible Recipient agrees to the terms
and conditions hereof and subject to additional costs
associated with delivery of the Transfer Assistance
Services, including software licenses, transition and
separation expenses, and (iv) commencing upon notice
from UICI or an Eligible Recipient that UICI or such
Eligible Recipient no longer desires Insurdata to
provide all or any portion of the Services.
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(ii) Insurdata shall provide Transfer Assistance Services
to UICI or its designee regardless of the reason for
the expiration or termination of the Term; provided
that if the Agreement is terminated by Insurdata
under Section 20.1(b) or (c) for UICI's default,
Insurdata may require UICI to (i) pay in advance for
Transfer Assistance Services provided or performed
under this Section 4.2, (ii) pay all outstanding
undisputed Charges, and (iii) establish an escrow
account based on mutually agreed terms to ensure
payment of future Charges.
(iii) To the extent UICI requests Transfer Assistance
Services, such Services shall be provided subject to
and in accordance with the terms and conditions of
this Agreement. Insurdata shall perform the Transfer
Assistance Services with at least the same degree of
accuracy, quality, completeness, timeliness,
responsiveness and cost-effectiveness as it provided
and was required to provide for the same or similar
Services during the Term. The quality and level of
performance of the Services provided by Insurdata
following the expiration or termination of the Term
with respect to all or part of the Services or
Insurdata's receipt of a notice of termination or
non-renewal shall not be materially degraded or
deficient in any respect.
(b) Scope of Service. As part of the Transfer Assistance Services,
Insurdata will timely transfer the control and responsibility
for all information technology functions and Services,
including documentation, software support and data management
functions, previously performed by or for Insurdata to UICI
and/or UICI's designees by the execution of any documents
reasonably necessary to effect such transfers. Additionally,
Insurdata shall provide any and all reasonable assistance
requested by UICI to allow:
(i) the systems associated with the Services to operate
efficiently;
(ii) the Services to continue without material
interruption or material adverse effect; and
(iii) the orderly transfer of the Services to UICI and/or
its designee(s).
The Transfer Assistance Services shall consist of the
Services, functions and responsibilities set forth in this
Agreement and all similar services requested from time to time
by UICI. In addition, Insurdata will provide the following
assistance and Services at UICI's direction:
(1) Insurdata shall: (i) assist UICI in developing a
written transition plan for the transition of the
Services to UICI or UICI's designee, which plan shall
include capacity planning, facilities planning,
telecommunications planning and other planning
necessary to effect the transition; (ii) perform
consulting services as requested to assist in
implementing the transition plan; (iii) train
personnel designated by UICI in the use and
maintenance of any Software utilized in the delivery
of the Services for which Insurdata provides
maintenance under this Agreement; (iv) catalog all
Software, UICI Data and Equipment used to provide the
Services, provide machine readable and printed
listings of source code for Software owned by UICI or
as to which UICI is entitled under this Agreement and
assist in the re-configuration of such Software; (v)
analyze and report on the space required for the UICI
Data and the Software needed to provide the Services,
(vi) assist in the data migration and testing
process; (vii) provide a complete and up-to-date
electronic copy of the Policy and Procedures Manual;
and (viii) provide other technical assistance as
reasonably requested by UICI.
(2) In addition to the initial six (6) month
post-termination period specified in Section
4.2(a)(i) above, at UICI's written request (which
must be given at least 180 days prior to the
expiration or termination date), and provided that
UICI is pursuing a migration of some or all of the
Services to itself or a third party, Insurdata shall
provide to the Eligible Recipient(s) such Services
for an additional period not to exceed six (6) months
from the end of such initial six (6) month period. To
the extent UICI requests such Services, UICI will
continue to pay Insurdata the Charges specified in
Schedule D for such Services.
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(3) If Insurdata uses a proprietary communications
network to provide Services to UICI or the Eligible
Recipients, then for a period of no more than six (6)
months following the expiration or termination date,
UICI may request that Insurdata continue to provide
such proprietary communications network Services at
the rates available to Insurdata. In addition,
Insurdata shall provide assistance and support for
UICI to convert any proprietary communications
capability to a non-proprietary supported
communications network.
(4) Unless otherwise agreed in writing, if UICI requests
that Insurdata provide or perform Transfer Assistance
Services in accordance with this Agreement, UICI will
pay Insurdata the rates and charges specified in
Schedule D for Insurdata Personnel or resources
required to perform such Transfer Assistance
Services. If Transfer Assistance Services require
additional resources beyond those being used to
provide the Services, UICI will pay Insurdata for
such usage as a New Service.
(c) Transfer of Employees and Related Matters. Upon expiration or
any termination of this Agreement, the Parties shall endeavor
to agree upon a written plan (the "Employee Transition Plan")
which shall provide for, among other things, the orderly
transfer of Insurdata and Insurdata Affiliate employees
involved in providing the Services to UICI and/or its
designee(s) and allocating the severance costs for such
employees who are not transferred and who Insurdata elects to
separate from employment. In the event the Parties are unable
to agree upon the terms and conditions of the Employee
Transition Plan on or before the termination or expiration
date, then at termination and upon completion of the
transition to UICI or its designee, the following provisions
shall apply:
(i) UICI or UICI's designee shall be permitted to
undertake, without interference from Insurdata or
Insurdata Affiliates, to hire any Insurdata or
Insurdata Affiliate employee who was devoting more
than eighty percent (80%) of his or her time to
performing the Services within the six (6) month
period prior to the expiration or termination date.
In connection therewith, Insurdata shall waive, and
shall cause its Affiliates to waive, their rights, if
any, under contracts with such employees restricting
the ability of such employees to be recruited or
hired by UICI or its designee, and UICI or its
designee shall have reasonable access to such
Insurdata or Insurdata Affiliate employees for
interviews, evaluations and recruitment to the extent
that the provision of the Services is not impacted.
UICI shall endeavor to conduct the above-described
hiring activity in a manner that is not unnecessarily
disruptive of the performance by Insurdata of its
obligations under this Agreement, and Insurdata shall
be relieved of Service Levels to the extent impacted
by such activity; and
(ii) UICI shall be obligated to pay all of Insurdata's
severance costs with respect to each Insurdata or
Insurdata Affiliate employee who was devoting more
than eighty percent (80%) of his or her time to
performing the Services within the six (6) month
period prior to the expiration or termination date,
if and only if (a) such employee is not hired by UICI
or its designee and (b) Insurdata elects to terminate
such employee from employment and so notifies UICI in
writing within thirty (30) days of the termination
date. For purposes of this section, severance costs
shall include all normal and customary costs of
termination, including, but not limited to, the costs
of accrued but unpaid vacation and similar unpaid
benefits, as well as reasonable severance that may be
offered by Insurdata in an amount not to exceed
twenty-five percent (25%) of each such employee's
base salary then in effect.
(d) Survival of Terms. This Section 4.2 and the terms of any
agreed Employee Transition Plan shall survive
termination/expiration of the Term.
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5. REQUIRED CONSENTS
Insurdata will cooperate with and assist UICI in obtaining all Required
Consents that may become necessary from time to time in connection with
Insurdata's performance of the Services or upon the expiration or
termination of this Agreement. UICI shall be responsible for and pay
any and all fees, costs and expenses (such as transfer, relicensing or
upgrade fees) associated with obtaining any Required Consents related
to any agreements that are entered into by or on behalf of UICI in
connection with Insurdata's provision of Services and any other costs
that result from the termination or underutilization of any agreement
with a third party that was entered into by or on behalf of UICI (the
"Required Consent Costs"); provided, however, that Insurdata shall be
responsible for any Required Consent Costs that result from the gross
negligence or willful misconduct of Insurdata; and further provided
that Insurdata shall be responsible for and pay any and all fees, costs
and expenses (such as transfer, relicensing or upgrade fees) associated
with obtaining any Required Consents related to any agreements that are
entered into by or on behalf of Insurdata in connection with
Insurdata's provision of Services and any other costs resulting from
the termination or underutilization of any agreement with a third party
that was entered into by or on behalf of Insurdata. At no additional
cost to UICI, Insurdata shall undertake all administrative activities
necessary to obtain such Required Consents.
6. FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH
THE PROVISION OF SERVICES
6.1 Service Facilities
(a) Service Facilities. The Services shall be provided at or from
(i) the data centers and other service locations owned or
leased by UICI and set forth on Schedule E, (ii) the data
centers and other service locations owned or leased by
Insurdata and set forth on Schedule F, (iii) any other service
location as may be agreed upon by Insurdata and UICI.
(b) UICI Facilities. UICI shall provide to Insurdata the use of
and access to the UICI Facilities (or equivalent space) set
forth in Schedule E for the portions of the Term of this
Agreement during which such use or access is necessary to
perform the Services. All UICI owned or leased assets provided
for the use of Insurdata under this Agreement shall remain in
UICI Facilities unless UICI otherwise agrees; those assets of
UICI that UICI agrees may be located at Insurdata Facilities
as of the Effective Date are listed on Schedule F. In
addition, all leasehold improvements made for Insurdata during
the Term shall be and remain part of the UICI Facility. THE
UICI FACILITIES ARE PROVIDED BY UICI TO INSURDATA ON AN
"AS-IS", "WHERE-IS" BASIS. UICI EXPRESSLY DISCLAIMS ANY
WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE UICI FACILITIES OR
THEIR CONDITION OR SUITABILITY FOR USE BY INSURDATA. UICI will
be responsible for all leasehold improvements including cost
and completion. UICI is not required under this Agreement to
make any leasehold improvements. Notwithstanding the
foregoing, it is understood and agreed that UICI and the
Eligible Recipients must maintain the UICI Facilities and UICI
Equipment in such condition as will permit Insurdata to
perform the Services as requested from time to time and to
meet the Performance Standards required herein.
(c) Furniture, Fixtures and Equipment. The office facilities
provided by UICI for the use of Insurdata Personnel at the
UICI Facilities will be generally comparable to the office,
storage and other space provided prior to the Effective Date.
Insurdata Personnel using the office facilities provided by
UICI will be accorded reasonable access to, and the use of at
no cost to Insurdata, certain shared office equipment and
services, such as PCs, photocopiers, telephone service for
UICI-related calls, mail service, office support service
(e.g., janitorial), heat, light and air conditioning.
Insurdata shall be responsible for providing all office, data
processing and computing equipment and services at the
Insurdata Facilities needed by Insurdata or Insurdata
Personnel to provide the Services, and for upgrades,
improvements, replacements and additions to such equipment or
services.
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(d) Insurdata's Responsibilities Regarding Facilities. Insurdata
shall be responsible for providing all furniture, fixtures,
space and other facilities required to perform the Services
and all upgrades, improvements, replacements and additions to
such furniture, fixtures and space at Insurdata Facilities.
Without limiting the foregoing, Insurdata shall, except as
provided in Section 6.1(c), (i) provide site management, site
administration and similar services regarding Insurdata
Personnel located at the UICI Facilities, and (ii) provide all
necessary emergency power supply and uninterrupted power
supply services and all necessary Equipment at Insurdata
Facilities.
(e) Physical Security. UICI is responsible for the physical
security of the UICI Facilities; provided that Insurdata shall
be responsible for its employees', agents', and
subcontractors' compliance with the security and safety
standards and procedures that are enforced by UICI and
applicable to the UICI Facilities, provided that Insurdata
receives a copy of such standards and procedures and has an
opportunity to review the same. Such standards and procedures
may be modified by UICI from time to time subject to the New
Services provision of the Agreement. Insurdata shall be
responsible for physical security of the Insurdata Facilities.
The physical security will be consistent with generally
accepted data processing standards.
(f) Employee Services. Subject to applicable security
requirements, UICI will permit Insurdata Personnel to use all
employee facilities (e.g., parking, cafeteria and common
facilities) at the UICI Facilities that are generally made
available to the employees of UICI or the Eligible Recipients.
Insurdata Personnel will not be permitted to use such employee
facilities designated by UICI for the exclusive use of certain
UICI or Eligible Recipient employees.
(g) Use of UICI Facilities. Subject to Section 6.6 of this
Agreement, unless Insurdata obtains UICI's prior written
consent, which may not be unreasonably withheld or delayed by
UICI, Insurdata shall use the UICI Facilities only to provide
the Services to UICI and the Eligible Recipients. UICI
reserves the right to relocate a UICI Facility from which the
Services are then being provided by Insurdata to another
geographic location; provided that in such event, UICI will
provide Insurdata with comparable space, facilities and
resources in the new location at no cost to Insurdata. UICI
shall also be responsible for the reasonable cost associated
with such relocation including personnel relocation, moving
expenses and start-up and fit-up activities. In the event that
such relocation impacts Insurdata's ability to provide the
Services in accordance with the Service Levels, Insurdata
shall be relieved from Service Levels until the relocation is
complete and the Service Levels are appropriately adjusted by
the Parties. UICI also reserves the right to direct Insurdata
to cease using all or part of the space in UICI Facility from
which the Services are then being provided by Insurdata and to
thereafter use such space for its own purposes; provided that,
in such event, UICI shall reimburse Insurdata for the
incremental Out-of-Pocket Expenses incurred by Insurdata as a
result of such direction to the extent such Out-of Pocket
Expenses relate to the relocation of Services for UICI
support, and Insurdata shall not be responsible for any
failures of Insurdata to perform Services at the Service
Levels required by this Agreement to the extent such failures
result from such UICI use or direction.
(h) Conditions for Return. When the UICI Facilities are no longer
to be used by Insurdata as contemplated by Section 6.1 or are
otherwise no longer required for performance of the Services,
Insurdata shall return them to UICI in substantially the same
condition (as they may have been improved) as when Insurdata
began use of such facilities, subject to reasonable wear and
tear.
(i) No Violation of Laws. Insurdata shall ensure that (i) the
UICI Facilities are treated in a reasonable manner, and (ii)
neither Insurdata nor any of its Subcontractors shall commit
any act in violation of any Laws in such Insurdata-occupied
UICI Facility or any act in violation of UICI's insurance
policies or in breach of UICI's obligations under the
applicable real estate leases in such Insurdata-occupied UICI
Facilities to the extent that such insurance policies and
leases have been previously disclosed to Insurdata. Insurdata
shall not be responsible for any violations of Laws in the
UICI Facilities occupied by Insurdata to the extent such
violations are created or otherwise caused by UICI or at
UICI's direction.
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(j) Transition Use. Following the expiration or termination of
this Agreement, UICI will allow Insurdata the use of those
UICI Facilities then being used to perform the Services for a
period of up to one-hundred and twenty (120) days following
the effective date of the expiration or termination (inclusive
of any Transfer Assistance Services period) to enable
Insurdata to conduct an orderly transition of Insurdata
resources.
(k) UICI Assets at Insurdata Facilities. Insurdata may, with the
prior written consent of UICI, locate UICI Equipment, UICI
Owned Materials and UICI Licensed Materials at Insurdata
Facilities to perform the obligations of Insurdata under this
Agreement. Upon termination or expiration of this Agreement,
and upon request from UICI, Insurdata shall return such UICI
Materials and UICI Equipment in the same condition as the
condition in which the same were first located at Insurdata
Facilities, reasonable wear and tear excepted.
6.2 Software
(a) Insurdata shall not use Software other than UICI Software to
perform Insurdata's obligations under this Agreement without
the prior written consent of UICI.
(b) Insurdata shall be responsible for cooperating, assisting and
advising UICI in connection with:
(i) the support, administration, operation and
maintenance of UICI Software and related Third Party
Contracts used by Insurdata in performing the
Services, subject to UICI's payment of any Required
Consent Costs and other required license and
maintenance fees; and
(ii) the compliance with and performance of all
operational and administrative obligations specified
in such licenses and agreements, including
nondisclosure obligations.
(c) Insurdata shall be responsible for the payment of any fees,
penalties, charges, interest or other expenses caused by or
resulting from Insurdata's gross negligence or willful
misconduct in connection with the performance of its
obligations to be performed under this Section.
(d) Upon request from UICI, Insurdata shall use commercially
reasonable efforts to evaluate any Third Party Software
selected by or for UICI to provide Services to determine
whether such Third Party Software will perform in accordance
with its published specifications.
6.3 Equipment
(a) Insurdata shall not use any Equipment other than UICI
Equipment to perform the Services without the prior written
consent of UICI.
(b) With respect to the UICI Equipment, all Equipment Leases and
related Third Party Contracts, Insurdata shall be responsible
for cooperating, assisting and advising UICI in connection
with:
(i) the evaluation, procurement, testing, installation,
rollout, use, support, management, administration,
operation and maintenance of the UICI Equipment
leased under such Equipment Leases and related Third
Party Contracts;
(ii) the compliance with and performance of all
operational, administrative and contractual
obligations with respect to such UICI Equipment,
leases and agreements, including nondisclosure
obligations; and
(iii) the administration and exercise as appropriate of all
rights available with respect to such UICI Equipment,
leases or agreements.
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(c) Insurdata shall be responsible for the payment of any fees,
penalties, charges, interest or other expenses caused by or
resulting from Insurdata's gross negligence or willful
misconduct in connection with the performance of its
obligations to be performed under this Section.
6.4 Third Party Contracts
(a) Insurdata shall cooperate, assist and advise UICI with respect
to UICI's responsibilities for all Third Party Contracts.
(b) Insurdata shall be responsible for cooperating, assisting and
advising UICI in connection with:
(i) the evaluation, procurement, use, support,
management, administration, operation and maintenance
of Third Party Contracts;
(ii) the performance, availability, reliability,
compatibility and interoperability of Third Party
Contracts and the services and products provided
thereunder; and
(iii) the compliance with and performance of any
operational, administrative or contractual
obligations imposed on UICI or Insurdata under Third
Party Contracts, including nondisclosure obligations.
(c) Insurdata shall be responsible for the payment of any fees,
penalties, charges, interest or other expenses caused by or
resulting from Insurdata's gross negligence or willful
misconduct in connection with the performance of its
obligations to be performed under this Section.
6.5 License to UICI Software
As of the Effective Date, UICI hereby grants to Insurdata (or at
Insurdata's request, to one of its Subcontractors) a non-exclusive,
fully paid-up, irrevocable license during the Term and any Transfer
Assistance Services period to use the UICI Owned Software and UICI
Owned Materials and prepare derivative works of the same, in each case
solely at the UICI Facilities and Insurdata Facilities, for the express
and sole purpose of providing the Services and Transfer Assistance
Services. UICI Owned Software shall remain the property of UICI.
Insurdata and its Subcontractors shall not use any UICI Owned Software
or UICI Owned Materials (except as may be provided in Article 14 of
this Agreement) for the benefit of any person or Entity other than UICI
without the prior written consent of UICI, which consent may be
withheld at UICI's sole discretion. Except as otherwise requested or
approved by UICI, Insurdata and its Subcontractors shall cease all use
of UICI Owned Software and UICI Owned Materials (except as may be
provided in Article 14 of this Agreement) upon the end of the Term and
any Transfer Assistance Services period and shall deliver all source
code and documentation relating to such Software upon completion of the
Term and any Transfer Assistance Services period.
6.6 Insurdata Assets; Shared Assets
UICI acknowledges that Insurdata currently has certain Equipment and
assets located at UICI Facilities that are used by Insurdata to support
UICI and/or other Insurdata customers and that Insurdata may place
additional assets of Insurdata at the UICI Facilities upon obtaining
the prior written approval of UICI, which approval will not be
unreasonably withheld or delayed and which written approval shall
include any appropriate cost allocation arrangements. The current
Insurdata Equipment and assets that are located at UICI Facilities are
described in Schedule C. In addition, Insurdata shall be responsible
for establishing security and access controls to all such Insurdata
Equipment and assets located at UICI Facilities and for the protection
of Insurdata assets located at UICI Facilities. At any time, and upon
one-hundred twenty (120) days' prior written notice, UICI may require
that Insurdata remove or relocate any or all Insurdata assets located
at the UICI Facilities. To the extent such assets are utilized in
support of UICI, then UICI shall be responsible for the relocation
costs as provided in Section 6.1(g). To the extent such assets are used
by Insurdata in support of other customers or services, then Insurdata
shall bear the costs of relocation.
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Certain Equipment that is now and may hereafter be located at the
Insurdata Facilities and at the UICI Facilities constitutes shared
assets utilized by both Parties. The existing shared assets are
identified in Schedule E and Schedule F. All shared assets will have
the same protection as all other assets, and cost sharing (including
relocation costs that may result from UICI's decision to require
relocation of any such assets) will be equitable among the Parties
and/or their customers sharing the asset.
6.7 Access to Third Party Software and Maintenance
As of the Effective Date and subject to obtaining the Required
Consents, UICI shall grant to Insurdata (or, at Insurdata's request, to
one of its Subcontractors), for the sole purpose of performing the
Services during the Term and the Transfer Assistance Services period,
the same rights to access and use Third Party Software and related UICI
Third Party Contracts that UICI has with respect to such Third Party
Software and Third-Party Contracts. Insurdata and its Subcontractors
shall comply with the duties, including use restrictions and those of
nondisclosure, imposed on UICI by such licenses and agreements. Except
as otherwise requested or approved by UICI (or the relevant licensor),
Insurdata and its Subcontractors shall cease all use of such
Third-Party Software and Third-Party Contracts when the Term and
Transfer Assistance Services period ends and shall return any and all
source code and documentation pertaining thereto to UICI and/or any
third-party licensor, if and as applicable.
6.8 Notice of Defaults
UICI and Insurdata shall promptly inform the other Party of any breach
of, or misuse or fraud in connection with, any Third-Party Contract(s),
Equipment Lease or Third-Party Software license of which it becomes
aware and shall cooperate with the other Party to prevent or stay any
such breach, misuse or fraud.
7. SERVICE LEVELS
7.1 General
Except as expressly provided in Sections 6.1(g), 9.2 and 18.2 of this
Agreement, Insurdata shall perform the Services at levels that meet or
exceed the Service Levels set forth in Schedule C.
7.2 Service Level Credits
Insurdata recognizes that its failure to meet critical Service Levels
may have a material adverse impact on the business and operations of
UICI and that the damages resulting from Insurdata's failure to meet
such Service Levels may not be capable of precise determination.
Accordingly, if Insurdata fails to meet any such Service Level for
reasons other than the actions of UICI or circumstances that constitute
Force Majeure under Section 18.2, then Insurdata shall pay UICI the
performance credits specified in Schedule C ("Service Level Credits")
as liquidated damages for Insurdata's failure to meet the Service
Levels. The Service Level Credits shall be UICI's sole remedy for such
failure and shall be credited to UICI on the next invoice by Insurdata.
7.3 Problem Analysis
If Insurdata fails to provide Services in accordance with the Service
Levels and the Agreement, Insurdata shall:
(i) promptly investigate and report on the causes of the
problem;
(ii) provide a Root Cause Analysis of such failure as soon
as practicable after such failure;
(iii) develop and implement a plan to correct the problem
and to begin meeting the Service Levels as soon as
practicable; and
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(iv) advise UICI, as and to the extent reasonably
requested by UICI, of the status of remedial efforts
being undertaken with respect to such problem.
Insurdata shall use diligent efforts to complete the Root Cause
Analysis within fifteen (15) days.
7.4 Continuous Improvement Reviews
During the six (6) months immediately following the Effective Date and
at least annually thereafter, UICI and Insurdata shall review the
Service Levels and the performance data collected and reported by
Insurdata and shall: (i) to the extent required, add new Service Levels
and/or develop new performance metrics to permit further measurement or
monitoring of the Services; (ii) modify or increase the Service Levels
to reflect changes in the architecture, standards, strategies, needs or
objectives defined by UICI; or (iii) modify or increase the Service
Levels to reflect agreed-upon changes in the manner in which the
Services are performed by Insurdata. As part of this review process,
the Parties shall jointly determine and agree on additions to or
modifications of the Service Levels and allocation of Service Level
Credits to be specified in Schedule C.
7.5 Measurement and Monitoring
Insurdata shall implement measurement and monitoring tools and metrics,
as well as standard reporting procedures, as set forth in Schedule C
and Schedule H to measure and report Insurdata's performance of the
Services against the applicable Service Levels. Insurdata shall provide
UICI with read-only access to on-line change and problem management
databases, which shall be limited to UICI databases, containing
up-to-date information regarding the status of service problems,
service requests and user inquiries. Insurdata also shall provide UICI
with information and access to the measurement and monitoring tools and
procedures utilized by Insurdata for purposes of audit verification.
8. PROJECT PERSONNEL
8.1 Key Insurdata Personnel
(a) Approval of Key Insurdata Personnel.
(i) Before assigning an individual to act as one of the
Key Insurdata Personnel, whether on an initial
assignment or a subsequent assignment, Insurdata
shall notify UICI of the proposed assignment, shall
introduce the individual to appropriate UICI
representatives, shall provide reasonable opportunity
for UICI representatives to interview the individual,
and shall provide UICI with a resume and such other
information about the individual as may be reasonably
requested by UICI. If UICI in good faith objects to
the proposed assignment for a specified lawful
reason, the Parties shall attempt to resolve UICI's
concerns on a mutually agreeable basis. If the
Parties have not been able to resolve UICI's concerns
within ten (10) business days, Insurdata shall not
assign the individual to that position and shall
propose to UICI the assignment of another individual
of suitable ability and qualifications.
(ii) The Key Insurdata Personnel that have been approved
as of the Effective Date are listed in Schedule A.
(iii) The Parties may from time to time change the
positions designated as Key Insurdata Personnel under
this Agreement.
(b) Continuity of Key Insurdata Personnel. Insurdata shall cause
each of the Key Insurdata Personnel to devote the necessary
time and effort (which will likely fluctuate from time to time
for each such Key Insurdata Personnel between a majority to
substantially all of his or her time and effort) for the
period specified in Schedule A to the provision of the
Services under this Agreement. Insurdata shall not transfer,
reassign or remove any of the Key Insurdata Personnel except
where the Key Insurdata Personnel (i) voluntarily resigns from
Insurdata, (ii) is dismissed by Insurdata for violations of
conditions of employment (e.g., fraud, drug abuse, theft),
(iii) fails to perform his or her duties and responsibilities
pursuant to this Agreement in Insurdata's reasonable judgment
or (iv) dies or is unable to work due to his or her disability
or announce its intention to do so during the specified period
without UICI's prior approval, which approval shall not be
unreasonably withheld. Insurdata shall transfer, reassign or
remove one of its Key Insurdata Personnel only after (i)
giving UICI at least ninety (90) days' prior written notice of
such action and (ii) complying with the requirement of Section
8.1(a)(i) above and Section 8.4 below.
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(c) Continuity of Critical Support Personnel. Insurdata shall not
transfer, reassign or remove any of the Critical Support
Personnel (except as a result of voluntary resignation,
involuntary termination for cause, illness, disability or
death) without UICI's prior approval, which UICI may not
unreasonably withhold.
8.2 Insurdata Project Executive
Insurdata shall designate an "Insurdata Project Executive" for UICI.
The Insurdata Project Executive shall:
(i) be one of the Key Insurdata Personnel;
(ii) be a full-time employee of Insurdata;
(iii) devote substantially his or her full time and effort
to managing the Services for a minimum period of two
(2) years;
(iv) serve as the single point of accountability for the
Services; and
(v) have day-to-day authority for ensuring customer
satisfaction and achieving attainment of all Service
Levels and Performance Standards.
8.3 Insurdata Personnel Are Not UICI Employees
Except as otherwise expressly set forth in this Agreement, the Parties
intend to create an independent contractor relationship and nothing in
this Agreement shall operate or be construed as making UICI or
Insurdata partners, joint venturers, principals, agents or employees of
the other. No officer, director, employee, agent, Affiliate, contractor
or Subcontractor retained by Insurdata to perform work on UICI's behalf
hereunder shall be deemed to be an officer, director, employee, agent,
Affiliate, contractor or Subcontractor of UICI. Insurdata, not UICI,
has the right, power, authority and duty to supervise and direct the
activities of the Insurdata Personnel and to compensate such Insurdata
Personnel for any work performed by them on UICI's behalf pursuant to
this Agreement.
8.4 Replacement, Qualifications and Retention of Insurdata Personnel
(a) Insurdata shall assign sufficient Insurdata Personnel
(including Subcontractors) to provide the Services in
accordance with this Agreement, and such Insurdata Personnel
shall possess suitable competence, ability and qualifications
and shall be properly educated and trained for the Services
they are to perform.
(b) In the event that UICI determines reasonably, lawfully and in
good faith that the continued assignment to UICI of any
Insurdata Personnel (including Key Insurdata Personnel and
Insurdata Subcontractors) is not in the best interests of
UICI, then UICI shall give Insurdata written notice to that
effect specifying the reason for its position and requesting
that such Insurdata Personnel be replaced. Promptly after its
receipt of such a request by UICI, Insurdata shall investigate
the matters stated in the request and discuss its findings
with UICI. If Insurdata determines that UICI's request is
reasonable, lawful and in good faith, Insurdata shall take
appropriate action. If requested to do so by UICI, Insurdata
shall immediately remove the individual in question from all
UICI Sites pending completion of Insurdata's investigation and
discussions with UICI. If, following discussions with
Insurdata, UICI still in good faith requests replacement of
such Insurdata Personnel, Insurdata shall promptly replace
such Insurdata Personnel with an individual of suitable
ability and qualifications. Nothing in this provision shall
operate or be construed to limit Insurdata's responsibility
for the acts or omissions of the Insurdata Personnel.
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(c) In the event that an Insurdata employee assigned to UICI is
reassigned by Insurdata, then Insurdata shall replace that
individual in accordance with a training and turn-over plan
jointly agreed to by both Parties. The cost associated with
such training and turn-over period will be borne by Insurdata,
except in the case of: (a) individuals being reassigned within
UICI, (b) individuals who had originally been assigned to UICI
on a "short-term" basis (i.e., for less than three (3) months)
or (c) other individuals with respect to which the Parties
mutually agree. In any event, the training period cost to
Insurdata will not exceed two (2) weeks.
8.5 Conduct of Insurdata Personnel
While at the UICI Sites, Insurdata Personnel shall:
(i) comply with the rules and regulations that UICI or
the Eligible Recipients set regarding personal and
professional conduct, safety and security practices
and procedures of which UICI provides notice
(including compliance with UICI's dress code, the
wearing of an identification badge provided by UICI,
and adherence to UICI's regulations and general
safety practices and procedures) generally applicable
to such UICI Facilities; and
(ii) otherwise conduct themselves in a businesslike
manner.
8.6 Substance Abuse
Insurdata agrees to immediately remove any Insurdata Personnel who
engage in substance abuse while on UICI Facilities, in a UICI vehicle
or while performing Services. Substance abuse includes the sale,
attempted sale, possession or use of illegal drugs, drug paraphernalia
or alcohol, or the misuse of prescription or non-prescription drugs.
Each Party shall notify the other Party of any suspected substance
abuse by any Insurdata Personnel providing Services to UICI. Insurdata
represents and warrants that it has and will maintain a screening
program for substance abuse and that such program will be applicable to
all Insurdata Personnel performing Services under this Agreement.
8.7 Hiring of Employees
Except as expressly set forth herein, during the Term and for a period
of six (6) months following the expiration or termination hereof
(including any extended post-termination/expiration transition period),
Insurdata will not solicit for employment directly, nor employ, any
current employee of UICI or an Eligible Recipient involved in the
performance of UICI's obligations under this Agreement without the
prior written consent of UICI. Except as expressly set forth herein in
connection with the expiration or termination of this Agreement, during
the Term and for a period of six (6) months following the expiration or
termination hereof (including any extended post-termination/expiration
transition period), UICI will not solicit for employment directly, nor
employ, any current employee of Insurdata or its Affiliates or
Subcontractors involved in the performance of Insurdata's obligations
under this Agreement without the prior written consent of Insurdata or
such Subcontractor (as applicable). For purposes of this Section 8.7,
"current employee" shall be deemed to include an employee of the
applicable Entity who is then currently actively employed by the Entity
or who was so employed by the Entity within the previous six (6) month
period.
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8.8 Assignment of Personnel
Insurdata represents and warrants that Insurdata shall assign, with the
approval of UICI, to the performance of its obligations under this
Agreement all Insurdata Personnel necessary to perform fully and
completely the Services as required under this Agreement.
9. INSURDATA RESPONSIBILITIES
9.1 Policy and Procedures Manual
(a) Insurdata shall perform the Services in accordance with the
Policy and Procedures Manual. In the event of a conflict
between the provisions of this Agreement and the Policy and
Procedures Manual, the provisions of this Agreement shall
control unless the Parties expressly agree otherwise and such
agreement is set forth in the relevant portion of a Policy and
Procedures Manual approved by UICI in writing.
(b) Insurdata shall promptly modify and update the Policy and
Procedures Manual to reflect changes in the operations or
procedures described therein and shall provide the proposed
changes in the manual to UICI for review and comment. To the
extent any change would increase the cost of the Services to
UICI or could have a material adverse impact on the scope,
accuracy, speed, responsiveness or quality of the Services,
such change shall not take effect until it has been approved
by UICI.
9.2 Cooperation with UICI Third-Party Contractors
UICI may hire contractors, subcontractors, consultants and/or other
third parties ("UICI Third Party Contractors") to perform any of the
Services or any New Services. Insurdata shall reasonably cooperate with
and work in good faith with UICI Third Party Contractors as directed by
UICI. Such cooperation may include:
(i) providing access to any portion of facilities being
used to provide the Services, as necessary for UICI
Third Party Contractors to perform the work assigned
to them;
(ii) providing access to the Equipment, Software and
systems to the extent permitted under any underlying
agreements with third-party vendors of such
Equipment, Software or systems; or
(iii) providing written requirements, standards, policies
or other documentation for the Services and for the
Equipment, Software or systems procured, operated,
supported or used by Insurdata in connection
therewith.
UICI Third Party Contractors shall comply with Insurdata's reasonable
security and confidentiality requirements and shall, to the extent
performing work on Software or Equipment for which Insurdata is
involved in performing simultaneous or related Services, comply with
Insurdata's reasonable standards, methodologies and procedures.
Insurdata shall immediately notify UICI if an act or omission of UICI
Third Party Contractor will cause, or has caused, a problem or delay in
providing the Services and shall work with UICI to prevent or
circumvent such problem or delay. Insurdata shall be relieved of
Service Levels to the extent of such delay. Insurdata will coordinate
with UICI and the UICI Third Party Contractors to resolve differences
and conflicts arising between the Services and other activities
undertaken by UICI or any of the UICI Third Party Contractors. UICI
shall be responsible for any failure of UICI Third Party Contractors to
comply with UICI's obligations under this Agreement, as applicable.
9.3 Reports
(a) Reports. Insurdata shall provide to UICI the Reports described
in Schedule H at the frequencies and in the formats provided
therein. In addition, from time to time, the Parties may
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mutually agree on additional reports to be generated by
Insurdata and delivered to UICI on an ad hoc or periodic
basis.
(b) Back-Up Documentation. As part of the Services, Insurdata
shall provide UICI with such documentation and other
information available to Insurdata as may be reasonably
requested by UICI from time to time in order to verify the
accuracy of the Reports provided by Insurdata. In addition,
Insurdata shall provide UICI with documentation and other
information reasonably requested by UICI from time to time to
verify that Insurdata's performance of the Services is in
compliance with the Performance Standards and this Agreement.
(c) Correction of Errors. As part of the Services, Insurdata shall
promptly correct any errors or inaccuracies in or with respect
to the Reports, UICI Data or other contract deliverables.
9.4 Meetings
(a) In order to assist UICI in its technology planning, and to
better assure that Services are provided to UICI by Insurdata
in a cost-effective and timely manner, during the Term,
representatives of the senior management of Insurdata and
representatives of the senior management of UICI agree to meet
in person or telephonically no less frequently than monthly
(provided that such parties shall meet in person no less
frequently than quarterly) (a) to discuss, prioritize and
balance UICI's information technology needs and Insurdata's
information technology resources, including, without
limitation, Insurdata's manpower and personnel resources, and
(b) to discuss any other matters arising under this Agreement.
Such meetings will include review of performance and monthly
reports, planned or anticipated activities and changes that
might materially and adversely affect performance, and such
other matters as appropriate.
(b) For each such meeting, upon UICI's request, Insurdata shall
prepare and distribute an agenda, which will incorporate the
topics designated by UICI. Insurdata shall distribute such
agenda in advance of each meeting so that the meeting
participants may prepare for the meeting. In addition, upon
UICI's request, Insurdata shall record and promptly distribute
minutes for every meeting.
(c) Insurdata shall notify the UICI Project Executive in advance
of scheduled meetings with End Users or Eligible Recipients
(other than meetings pertaining to the provision of specific
Services on a day-to-day basis) and shall invite the UICI
Project Executive to attend such meetings or to designate a
representative to do so.
9.5 Quality Assurance
Insurdata shall perform the Services in an accurate and timely manner,
in accordance with the Performance Standards and the Policy and
Procedures Manual. No failure or inability of the quality assurance
procedures used by Insurdata to disclose any errors or problems with
the Services shall excuse Insurdata's failure to comply with the
Performance Standards and other terms of this Agreement.
UICI shall have final authority to promulgate information technology
architectures, standards and plans and to modify or grant waivers from
such architectures, standards or plans, all in accordance with the
Policy and Procedures Manual. Insurdata shall (i) comply with and
enforce the information technology architectures, standards and plans
established by UICI, (ii) modify the Services as and to the extent
necessary to conform to such architectures, standards and plans and
(iii) obtain UICI's prior approval for any deviations from such
architectures, standards or plans.
9.6 Change Control
Insurdata shall not make any System Changes except in accordance with
the agreed-upon change control procedures contained in the Policy and
Procedures Manual.
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9.7 Software Currency
Insurdata shall only use those versions of the UICI Software approved
in writing by UICI to provide the Services.
9.8 Year 2000 Compliance
(a) General. "Year 2000 Compliant" or "Year 2000 Compliance" means
that a product, when used in accordance with its associated
documentation, is capable of correctly processing, providing
and/or receiving date data within and between the twentieth
and twenty-first centuries, provided that all products (for
example, hardware, software and firmware) used with such
product properly exchange accurate date data with it.
(b) Year 2000 Coordination. Insurdata shall cooperate and
coordinate its activities with the corporate office that
provides central planning, coordination, status tracking,
project communications and management reporting for the UICI
Year 2000 Compliance program. Insurdata shall, among other
things, follow all corporate guidelines regarding Year 2000
Compliance activities, provide all requested project reporting
information, cooperate with any audit activity initiated by
the Office of the Year 2000 and respond in a timely manner to
any ad hoc information or data requests.
(c) Emergency Access to Year 2000 Services, Personnel and
Resources. Upon UICI's request and subject to availability of
resources, Insurdata shall provide UICI with access to those
Insurdata services, personnel and resources required to
respond on an emergency basis to Year 2000 Compliance
problems.
(d) Insurdata Procurement Responsibilities. Insurdata shall
cooperate and assist UICI in obtaining assurances of Year 2000
Compliance from each third party vendor from whom UICI
procures new third party Equipment or Software to be operated,
maintained, supported or used by Insurdata to provide the
Services under this Agreement. Except at the direction of UICI
or an Eligible Recipient, or any authorized agent of either,
Insurdata shall not procure any Equipment or Software not
having such assurances of Year 2000 Compliance without UICI's
prior approval.
(e) Insurdata Software, Equipment and Infrastructure. Insurdata
shall ensure that any new Equipment or Software owned by
Insurdata and used to provide the Services is Year 2000
Compliant.
9.9 SAS 70 Audits
Insurdata will include the UICI operations supported by Insurdata in
its annual SAS 70 operational (i.e., Level II) audit and will provide
copies of the resulting SAS 70 reports to UICI at no charge to UICI.
Insurdata shall be responsible for the cost of the SAS 70 audit. In
addition, UICI may elect at its cost and expense to undertake any
recommendation contained in the audit report, and Insurdata will
cooperate and assist UICI in connection therewith as part of the
Services, which will be charged to UICI in accordance with this
Agreement the first time such Services are provided by Insurdata;
provided, however, that if a subsequent SAS 70 audit reveals that the
Services provided by Insurdata in accordance with a previous SAS 70
recommendation do not cause UICI's operations to meet the auditor's
recommendation to the level and degree requested and paid for by UICI,
then Insurdata shall provide such further Services as are necessary to
bring UICI operations into conformance with the auditor's
recommendations to such level and degree, at no cost to UICI.
9.10 Audit Rights
(a) Insurdata Records. Insurdata shall maintain and provide access
upon request to the portion of records, documents and other
information required to meet UICI's audit rights under this
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Agreement, including, without limitation, all information
necessary to verify the accuracy of charges to UICI included
on any invoice provided to UICI ("Insurdata Records").
Insurdata shall retain Insurdata Records in accordance with
Insurdata's records retention policy as it may be reasonably
adjusted from time to time and provided to UICI in writing
upon request; provided, however, that Insurdata shall at all
times comply fully with all Laws applicable to UICI regarding
records retention, to the extent that UICI provides Insurdata
with prior written notice of the same.
(b) Operational Audits. Upon reasonable notice from UICI, and
subject to Insurdata or Insurdata's agents' reasonable
security requirements and upon execution of Insurdata's
standard Confidentiality Agreements, Insurdata shall, and
shall cause its Subcontractors and suppliers to, provide to
UICI (and internal and external auditors, inspectors,
regulators and other representatives that UICI may designate
from time to time) access at reasonable hours to Insurdata
Personnel, to the facilities at or from which Services are
then being provided, and to Insurdata records and other
pertinent information, all to the extent relevant to the
Services and Insurdata's obligation under this Agreement. Such
access shall be provided for the purpose of performing audits
and inspections of UICI and its businesses and to examine
Insurdata's performance of the Services, including: (i)
verifying the integrity of UICI Data; (ii) examining the
systems that process, store, support and transmit such data;
(iii) examining the controls (e.g., organizational controls,
input/output controls, system modification controls,
processing controls, system design controls and access
controls) and the security, disaster recovery and back-up
practices and procedures; (iv) examining Insurdata's
measurement, monitoring and management tools; and (v) enabling
UICI and the Eligible Recipients to meet applicable legal,
regulatory and contractual requirements. Insurdata shall
provide any assistance reasonably requested by UICI or its
designee in conducting any such audit, including installing
and operating audit software.
(c) Financial Audits. Upon reasonable notice from UICI, and
subject to Insurdata or Insurdata agents' security
requirements and execution of Insurdata's standard
Confidentiality Agreements, Insurdata shall, and shall cause
its Subcontractors and suppliers to, provide to UICI (and
internal and external auditors, inspectors, regulators and
other representatives that UICI may designate from time to
time) access at reasonable hours to Insurdata Personnel and to
Insurdata Records and other pertinent information, all to the
extent relevant to the performance of Insurdata's financial
obligations under this Agreement. Such access shall be
provided for the sole purpose of performing audits and
inspections relating to the Services to verify the accuracy of
Insurdata's Charges to see that Insurdata is exercising
reasonable procedures to control the resources provided by
Insurdata to UICI and that the Services are being provided in
accordance with the Service Levels. Insurdata shall provide
any assistance reasonably requested by UICI or its designee in
conducting any such audit and shall make requested personnel,
records and information available during the Term and
thereafter, during the period specified in Insurdata's records
retention policy, as it may be reasonably adjusted from time
to time. If any such audit reveals an overcharge or
undercharge by Insurdata, and Insurdata or UICI, as
applicable, does not successfully dispute the amount
questioned by such audit, Insurdata or UICI, as applicable,
shall promptly pay to the other Party the amount of such
overcharge or undercharge, as the case may be, together with
interest at the rate specified in Section 12.2.
(d) General Procedures.
(i) UICI shall not be given access to the proprietary
information of other Insurdata customers or to
Insurdata locations that are not related to UICI or
the Services or to information that is not reasonably
necessary to perform the audit.
(ii) In performing audits, UICI shall endeavor to avoid
unnecessary disruption of Insurdata's operations and
unnecessary interference with Insurdata's ability to
perform the Services in accordance with the
Performance Standards. In the event that UICI
disrupts Insurdata's operations or interferes with
Insurdata's ability to perform the Services,
Insurdata shall be relieved of Service Levels.
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(iii) Following any audit, UICI shall conduct (in the case
of an internal audit), or request its external
auditors or examiners to conduct, an exit conference
with Insurdata to obtain factual concurrence with
issues identified in the review.
(iv) UICI shall use reasonable efforts to conduct the
audit efficiently and expeditiously and at reasonable
business hours.
(e) Insurdata Response. Insurdata and UICI shall meet to review
each audit report promptly after the issuance thereof.
Insurdata will respond to each audit report in writing within
thirty (30) days from receipt of such report. Insurdata and
UICI shall develop and agree upon an action plan to promptly
address and resolve any deficiencies, concerns and/or
recommendations in such audit report, and Insurdata shall
undertake remedial action in accordance with such action plan
and the dates specified therein.
(f) Response to Government Audits. If an audit by a governmental
body or regulatory authority having jurisdiction over UICI, an
Eligible Recipient or Insurdata results in a finding that
Insurdata or UICI is not in compliance with any generally
accepted accounting principle or other audit requirement or
any rule, regulation or law relating to the performance of its
obligations under this Agreement, Insurdata or UICI, as the
case may be, shall, within the time period specified by such
auditor, address and resolve the deficiency(ies) identified by
such governmental body or regulatory authority.
(g) Audit Costs. UICI shall be responsible for all costs and
expenses necessary for Insurdata and its Subcontractors and
suppliers to provide the Services described in this Section
9.11 and for the costs of any third party auditors or
consultants retained by UICI in connection therewith.
9.11 Subcontractors
(a) Use of Subcontractors. Insurdata shall not subcontract any
material portion of its responsibilities under this Agreement
without UICI's prior written approval. Prior to entering into
a subcontract with a third party for performance of any
material portion of the Services, Insurdata shall give UICI
reasonable prior written notice specifying the components of
the Services affected, the scope of the proposed subcontract,
and the identity and qualifications of the proposed
Subcontractor.
(b) Insurdata Responsibility for Subcontractors. Insurdata shall
remain responsible for obligations performed by Subcontractors
and the conduct of Subcontractor personnel to the same extent
as if such obligations were performed by Insurdata's
employees. Insurdata shall be UICI's sole point of contact
regarding the Services, including with respect to payment.
9.12 Compliance with Applicable Laws
Insurdata shall comply with Laws applicable to UICI and the Eligible
Recipients with respect to the delivery of the Services. UICI shall
have the right to notify Insurdata of changes in Laws applicable to
UICI that may impact the means or manner of providing the Services, and
Insurdata shall comply with such changes. Insurdata shall make all
reasonable efforts required to implement any necessary modifications to
the Services prior to any applicable deadline imposed by the regulatory
or other governmental body having jurisdiction for such requirement or
change.
10. UICI RESPONSIBILITIES
10.1 Responsibilities
In addition to UICI's responsibilities as expressly set forth elsewhere
in this Agreement and in the Policy and Procedures Manual, UICI shall
be responsible for the following:
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(a) UICI shall designate, prior to commencement f the Services by
Insurdata, one individual to whom all Insurdata communications
concerning this Agreement may be addressed (the "UICI Project
Executive"), who shall have the authority to act on behalf of
UICI in all day-to-day matters pertaining to this Agreement.
Dennis Connor is hereby designated as the initial UICI Project
Executive. UICI may change the designated UICI Project
Executive from time to time by providing written notice to
Insurdata. Additionally, UICI will have the option, but will
not be obligated, to designate additional representatives who
will be authorized to make certain decisions (e.g., regarding
emergency maintenance, execution of decision or change
requests, etc.) if the UICI Project Executive is not
available. Furthermore, and notwithstanding the forgoing,
Insurdata shall be entitled to act on Services requests made
on the authority of all UICI and/or Eligible Recipient
executives or their designated project managers as set forth
in the Policy and Procedures Manual.
(b) UICI shall cooperate with Insurdata by, among other things,
making available, as reasonably requested by Insurdata,
management decisions, information, approvals and acceptances
so that Insurdata may accomplish its obligations and
responsibilities hereunder.
11. CHARGES
11.1 General
(a) In consideration of Insurdata's performance of the Services,
UICI agrees to pay Insurdata the applicable Charges set forth
in Schedule D. Unless otherwise agreed in connection with any
Fixed-Price Project or New Services agreement made in
accordance with Section 11.4, all Services are to be performed
on a time and materials basis, and Insurdata has not made, and
does not make, any representation, warranty or guaranty as to
the amount of time, labor or resources which may be necessary
to complete all or any portion of the Services assigned by
UICI or Eligible Recipients from time to time, or with regard
to any scheduled or proposed delivery or completion date or
dates. Unless otherwise agreed in connection with any
Fixed-Price Project or New Services agreement made in
accordance with Section 11.4, UICI expressly acknowledges and
agrees that Insurdata shall be compensated on the time and
materials basis provided in this Agreement for all Services
rendered, including all Services necessary to correct any
bugs, defects, mistakes, hardware problems, compatibility
issues and any and all other workarounds as Insurdata deems
necessary to meet UICI's requirements as they may be amended
or modified by UICI from time to time; provided, however, that
UICI shall not be liable hereunder for any incremental costs
or expenses or any Charges for Services (which shall be borne
solely by Insurdata), including without limitation the costs
and expenses associated with any bugs, defects, mistakes,
hardware problems or compatibility issues, in each case
arising from the gross negligence or willful misconduct of
Insurdata.
(b) Except as otherwise agreed to in writing by the Parties, UICI
shall not pay any amounts for the Services to Insurdata in
addition to those set forth in this Article 11 or Schedule D
or elsewhere in this Agreement.
11.2 Incidental Expenses
Insurdata acknowledges that, except as expressly provided otherwise in
this Agreement, incidental expenses that Insurdata incurs in performing
the Services are included in Insurdata's Charges and the rates set
forth in this Agreement. Accordingly, such Insurdata expenses are not
separately reimbursable by UICI unless UICI has agreed in advance and
in writing to reimburse Insurdata for the expense.
11.3 Taxes
The Parties' respective responsibilities for taxes arising under or in
connection with this Agreement shall be as follows:
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(a) Each Party shall be responsible for any franchise or privilege
taxes on its business and for any taxes based on its net
income or gross receipts.
(b) Each Party shall be responsible for any sales, lease, use,
personal property or other such taxes on Equipment, Software
or property it owns or leases from a third party.
(c) Insurdata shall be responsible for all sales, service,
value-added, lease, use, personal property, excise,
consumption and other taxes and duties payable by Insurdata on
any goods or services acquired and used or consumed by
Insurdata in providing the Services where the tax is imposed
on Insurdata's acquisition or use of such goods or services.
(d) UICI shall be responsible for all sales, use, excise, value
added, consumption, service or other taxes assessed on the
receipt of the Services as a whole, or on any particular
Service received by UICI or the Eligible Recipients from
Insurdata.
(e) The Parties agree to cooperate fully with each other to enable
each to determine more accurately its own tax liability and to
minimize such liability to the extent legally permissible.
Insurdata's invoices shall separately state the Charges that
are subject to taxation and the amount of taxes included
therein. Each Party will provide and make available to the
other any resale certificates, information regarding
out-of-state or out-of-country sales or use of equipment,
materials or services, and other exemption certificates or
information reasonably requested by either Party.
(f) Each Party will promptly notify the other of, and reasonably
coordinate with the other, the response to and settlement of,
any claim for taxes asserted by applicable taxing authorities
for which the other Party is responsible hereunder. With
respect to any claim arising out of a form or return signed by
a Party to this Agreement, such Party will have the right to
elect to control the response to and settlement of the claim,
but the other Party will have all rights to participate in the
responses and settlements that are appropriate to its
potential responsibilities or liabilities. If either Party
requests the other to challenge the imposition of any tax, the
requesting Party will reimburse the other for the reasonable
legal fees and expenses it incurs. A Party will be entitled to
a proportional share of any tax refunds or rebates granted to
the extent such refunds or rebates are of taxes that were paid
by it.
(g) Each Party represents, warrants and covenants that it will
file appropriate tax returns, and pay applicable taxes owed
arising from or related to the Services in applicable
jurisdictions.
11.4 New Services and Projects
(a) If UICI requests that Insurdata undertake any Projects or
perform any New Services, Insurdata shall promptly prepare a
Project or New Services proposal for UICI's consideration in
accordance with the Policies and Procedures Manual and in
accordance with UICI's request therefor. Project proposals
will be prepared as part of the Services and submitted within
fourteen (14) days of Insurdata's receipt of UICI's request.
Unless otherwise agreed by the Parties, Insurdata shall
prepare New Services proposals and Project proposals (if such
Project proposals are being requested on a competitive basis)
at no additional charge to UICI and shall deliver such
proposals to UICI within fourteen (14) days of its receipt of
UICI's request. In all cases, UICI's requests for proposals
shall stipulate whether UICI desires that Insurdata submit
either a fixed price proposal or an estimated time and
materials proposal or a proposal based upon such other pricing
as UICI may specify in its request. All Project proposals and
New Services proposals shall include, among other things, (i)
a project plan and fixed price or cost estimate for the
Project or New Service; (ii) a breakdown of the cost buildup
for such pricing or estimate; (iii) a description of the
service levels to be associated with any New Service; (iv) a
schedule for commencing and completing the Project or New
Service; (v) a description of any new hardware or software to
be provided by Insurdata in connection with the Project or New
Service; (vi) a description of any software and hardware
resources and runtime requirements necessary to provide the
Project or New Service; (vii) a project organization chart
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and description of responsibilities of both UICI and
Insurdata; (viii) acceptance criteria; (ix) the human
resources necessary to complete the Project or provide the New
Service; and (x), with respect to any Fixed Price Project,
applicable penalties associated with untimely performance
and/or bonuses associated with accelerated performance. UICI
may accept or reject any Project or New Services proposal in
its sole discretion. If UICI accepts Insurdata's proposal and
Insurdata agrees to undertake the Project or provide the New
Services, Insurdata will perform the Project or the New
Services in accordance with the provisions set forth in a
written addendum to this Agreement and will be paid in
accordance with the proposal submitted by Insurdata and the
provisions of this Agreement to the extent not varied by the
documents pertaining thereto. Once the documents regarding New
Services have been agreed upon, the scope of the Services will
be expanded to include such New Services unless the Parties
agree in writing to the contrary. Notwithstanding any
provision to the contrary, the pricing proposed by Insurdata
shall take into account the existing and future volume of
business between UICI and Insurdata. UICI understands and
acknowledges that if Insurdata is requested to bid a Project
or New Services proposal on a fixed price or competitive
bidding basis, then Insurdata will not be restricted to the
pricing provided in this Agreement, and may base its pricing
proposal on standard commercial rates then in effect (subject
to Section 11.7) and on such other factors as Insurdata deems
appropriate under the circumstances.
(b) UICI may elect to, and reserves the right to, solicit and
receive bids from third parties to perform any Project or New
Services. If UICI elects to use third parties to perform a
Project or New Services, (i) such Project or New Services
shall not be deemed Services under the provisions of this
Agreement and (ii) Insurdata shall reasonably cooperate with
such third parties as provided in Section 9.2 to the extent
such cooperation does not impact Insurdata's ability to
provide the Services. UICI shall reimburse Insurdata for
reasonable costs of complying with this Section 11.4(b).
(c) The Parties anticipate that the Services will evolve and be
supplemented, modified, enhanced or replaced over time to keep
pace with technological advancements and improvements in the
methods of delivering services, and the Parties acknowledge
that these evolutionary changes may modify the "Services" and
will not necessarily be deemed to result in New Services.
(d) Insurdata will promptly inform the UICI Project Executive of
requests for New Services from End Users or Eligible
Recipients, and shall submit any proposals for New Services to
the UICI Project Executive or his or her designee. Insurdata
shall not agree to provide New Services to any End Users or
Eligible Recipients without the prior written approval of the
UICI Project Executive or his or her designee.
(e) If UICI requests that Insurdata provide Services to Entities
other than Eligible Recipients, the requested Services shall
be treated as New Services. Unless otherwise agreed by the
Parties, such Services shall be performed in accordance with
the terms and conditions governing the provision of the same
Services to existing Eligible Recipients; provided, however,
that to the extent Services are to be provided outside the
United States, the Parties may modify or add necessary terms
and conditions.
11.5 Proration
Any periodic charges that may become due under this Agreement are to be
computed on a calendar month basis, and shall be prorated for any
partial month on a calendar day basis.
11.6 Refundable Items
(a) Prepaid Amounts. Where UICI has prepaid for a third party
service or function necessary for performance of the Services
under this Agreement, Insurdata shall assist and cooperate
with UICI's efforts to obtain any available refund of such
prepaid expense to which UICI may become entitled. UICI shall
reimburse Insurdata, when the Term ends, for that portion of
any amounts prepaid by Insurdata (or its Approved
Subcontractors) that are attributable to periods on and after
the Term ends to the extent that: (a) such prepayment is for a
period of less than one (1) year; or (b) UICI approved such
prepayment in advance.
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(b) Refunds and Credits. If either Party should receive a refund,
credit, discount or other rebate for goods or services paid
for by the other Party, then the Party receiving such refund,
credit, discount or other rebate shall (i) notify the other
Party of such refund, credit, discount or rebate and (ii) pay
the full amount of such refund, credit, discount or rebate to
the other Party.
11.7 Most Favored Nations Pricing
(a) Insurdata represents and warrants that the prices contained
herein are at least as favorable to UICI as the prices that
third parties pay to Insurdata for comparable Services. If
Insurdata offers to provide to any third party comparable
services at prices lower than those contained herein,
Insurdata shall immediately notify UICI of same and, at UICI's
option, this Agreement shall be amended to include such lower
prices.
(b) Insurdata further represents, warrants and agrees that the
prices for which all other Insurdata software, services and
product licenses and sales are to be provided to UICI and any
Eligible Recipient are and will be no less favorable to UICI
or the Eligible Recipient than the prices that unaffiliated
third parties (excluding CareFirst Administrators' use of
Insur-Claims(R)) pay to Insurdata for comparable services and
products. If Insurdata agrees during the Term of this
Agreement to provide to any third party comparable services or
products at prices lower than those provided for in any
agreement with UICI or an Eligible Recipient (including the
Excluded Agreements), Insurdata shall immediately notify UICI
or such Eligible Recipient of same and, at the option of UICI
or such Eligible Recipient, the applicable agreement will be
amended to provide for such lower prices. Without limiting the
generality of the foregoing, Insurdata hereby agrees that the
per-transaction prices, per-employee and/or other fees charged
for comparable transaction volumes and breakpoints by
Insurdata to UICI and each Eligible Recipient for use of
Insurdata's Insur-Web(TM), Insur-Enroll(TM), Insur-Voice(R),
Insur-Admin(R), Insur-Image(R)and Insur-Claims(R)proprietary
technology solutions, as well as any other proprietary
technology solutions or services developed by Insurdata from
time to time during the Term of this Agreement, are and will
be no less favorable to UICI than the per-transaction prices
and/or fees that unaffiliated third parties pay to Insurdata
for such proprietary technological solutions (excluding the
pricing for CareFirst Administrators' use of Insur-Claims(R)).
(c) For purposes of this Section, UICI acknowledges and agrees
that whether or not services, licensing or sale terms are
"comparable" shall be determined based upon all relevant
factors, which may include, but are not limited to: (i)
estimated and actual volumes and whether or not the customer
has guaranteed certain minimum volumes; (ii) the length of the
term of the customer's commitment; (iii) the breadth of
services and product offerings utilized by the customer; (iv)
the complexity and expense associated with start-up,
implementation and ongoing maintenance, and whether or not the
customer has agreed to pay such costs up front or whether such
costs are to be amortized over the term of the contract; (v)
the associated services levels and service level
penalty/credit arrangements; and (vi) in the case of data
capture services, the specifications for keying and form
variances, storage and retrieval options, etc.
(d) This Section is intended to apply to Insurdata product and
services offerings as they exist on a pre-merger basis, and
any subsequent proprietary technology solutions and ancillary
service offerings developed by the HealthAxis Applications
Solutions Group on a post-merger basis. Notwithstanding
anything herein to the contrary, this Section 11.7 shall not
apply to product and services offerings available as of the
Effective Date from HealthAxis, the details of which,
including any "most favored nations" pricing terms, are and
shall remain the subject of one or more separate written
agreements dated on or prior to the Effective Date between
UICI and HealthAxis.
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12. INVOICING AND PAYMENT
12.1 Invoicing
Insurdata will invoice UICI after the first day of each month during
the Term for amounts attributable to Services performed during the
preceding month. The invoice will state separately applicable taxes
owed by UICI, if any, by tax jurisdiction. UICI will pay all undisputed
invoiced Charges (subject to Section 12.3) within thirty (30) days
after the date of UICI's receipt of the invoice. Each invoice shall be
accompanied by such details of Charges as are necessary to meet UICI's
requirements under government accounting rules and regulations, to
validate volumes and fees, and to satisfy UICI's internal accounting
and chargeback requirements. Insurdata shall include the pricing
methodologies, calculations and related data utilized to establish the
Charges.
To the extent a credit may be due to UICI pursuant to this Agreement,
Insurdata shall provide UICI with an appropriate credit against amounts
then due and owing; if no further payments are due to Insurdata,
Insurdata shall pay such amounts to UICI on the following invoice, but
no less than thirty (30) days later.
12.2 Set Off
With respect to any amount to be paid or reimbursed by UICI hereunder,
UICI may set off against such amount any amount that Insurdata is
obligated to pay UICI hereunder, or, at Insurdata's option, UICI may
pay Insurdata such amount within thirty (30) days thereafter.
12.3 Disputed Charges
(a) UICI shall pay undisputed Charges when such payments are due
under this Article 12 and Schedule D. If UICI in good faith
disputes any Charges under this Agreement, UICI shall promptly
notify Insurdata in writing of such disputed amount and the
basis for UICI's dispute together with any appropriate
information supporting UICI's position. If UICI withholds any
disputed charges, such amount shall be promptly deposited in
an interest-bearing escrow account. To the extent it is
ultimately determined that such disputed amount is payable to
Insurdata, UICI shall pay interest on such amount to the
extent earned on such escrowed account. UICI and Insurdata
shall address disputes in accordance with the procedures set
forth in Article 19.
(b) Neither the failure to dispute any Charges or amounts prior to
payment nor the failure to withhold any amount shall
constitute, operate or be construed as a waiver of any right
UICI may otherwise have to dispute any Charge or amount or
recover any amount previously paid.
12.4 No Implied Charges
Each Party shall be solely responsible for all the costs and expenses
of performing such Party's obligations under this Agreement, and no
payment shall be due from the other Party for the performance of such
obligations unless such payment is expressly specified in this
Agreement.
12.5 Records
Insurdata shall keep and maintain complete and accurate accounting
records in accordance with generally accepted accounting principles to
support and document all amounts becoming payable to Insurdata
hereunder. Upon request from UICI, Insurdata shall provide to UICI (or
a representative designated by UICI) access to such records for the
purpose of auditing such records during normal business hours.
Insurdata shall retain all records required under this Section 12.5 for
four (4) years after the amounts documented in such records become due.
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12.6 Late Payment
Invoices not paid when due shall bear interest on the outstanding
balance at the rate of prime plus two percent (2.0%) per annum (unless
restricted by law, in which case interest shall accrue at the highest
legal rate). Notwithstanding anything to the contrary contained herein,
and even if any payment dispute arises between the parties (which
payment dispute shall be resolved pursuant to the dispute resolution
procedures in Section 19), in no event shall Insurdata suspend or
otherwise interrupt the provision of Services to UICI or the Eligible
Recipients unless authority to do so is granted by UICI in writing.
13. UICI DATA AND OTHER PROPRIETARY INFORMATION
13.1 UICI Ownership of UICI Data
UICI Data is and shall remain the property of UICI. Insurdata shall, at
the times specified below, promptly deliver to UICI in the available
format and on the media then used by Insurdata to provide the Services:
(a) a copy of all UICI Owned Materials and UICI Data (or such portions
as shall be specified by UICI) and (b) a copy of all Developed
Materials (or such portions as shall be specified by UICI). Such
deliveries shall occur: (i) at any time at UICI's request, (ii) at the
end of the Term and upon the completion of all requested Transfer
Assistance Services, or (iii) with respect to particular UICI Data or
UICI Owned Materials, at such earlier date that UICI requests such data
because it is no longer required by Insurdata to perform the Services.
Thereafter, if requested by UICI, Insurdata shall destroy or securely
erase all copies of the UICI Data and UICI Owned Materials in
Insurdata's possession or under Insurdata's control. Insurdata shall
not withhold any UICI Data or any of the items specified in this
Section as a means of resolving any dispute. Insurdata may retain one
(1) copy of the UICI Data and UICI Owned Developed Materials to
determine Insurdata's or its agents' rights under this Agreement.
Insurdata shall be relieved of its obligations to provide the Services
to the extent that its performance is prevented or hindered by the
return, erasure or destruction of UICI Data or UICI Owned Materials or
reports prepared pursuant to this Section 13.1. Except to the extent
expressly permitted under this Agreement, UICI Data and UICI Owned
Materials shall not be utilized by Insurdata for any purpose other than
the performance of Services under this Agreement and shall not be
disclosed (except as provided in Article 14), sold, assigned, leased,
licensed or otherwise provided to third parties by Insurdata or
commercially exploited by or on behalf of Insurdata or any Insurdata
Personnel. Insurdata shall not possess or assert any lien or other
right against or to UICI Data.
13.2 Safeguarding UICI Data
(a) Insurdata shall establish and maintain environmental, safety
and facility procedures, data security procedures and other
safeguards against the destruction, loss or alteration of UICI
Data in the possession of Insurdata which are (i) no less
rigorous than those that are commercially reasonable,
documented and enforced by UICI as of the Effective Date,
which UICI will provide to Insurdata, and (ii) no less
rigorous than those maintained by Insurdata for its own
information of a similar nature. UICI shall have the right to
establish backup security for UICI Data and to keep backup
copies of the UICI Data in UICI's possession at UICI's expense
if UICI so chooses. No media on which UICI Data is stored may
be used simultaneously to store data of any other customer of
Insurdata.
(b) As part of the Services, Insurdata shall be responsible for
developing and maintaining procedures for the disaster
recovery and reconstruction of lost UICI Data. Insurdata shall
correct, at UICI's request and sole discretion, any
destruction, loss or alteration of any UICI Data.
13.3 Confidentiality
(a) Proprietary Information. Insurdata and UICI each acknowledges
that the other possesses and will continue to possess
information that has been developed or received by it, has
commercial value in its or its customer's business and is not
in the public domain. Except as otherwise specifically agreed
in writing by the Parties, "Proprietary Information" of UICI
or Insurdata,
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or their respective Affiliates and Eligible Recipients shall
mean all information and documentation that belongs to UICI
and Insurdata and such Affiliates, Eligible Recipients or
agents, respectively, whether disclosed to or accessed by such
entity or Party in connection with this Agreement and that:
(1) has been marked "confidential" or "proprietary" or with
words of similar meaning at the time of disclosure by such
entity or Party, or (2) if disclosed orally or not marked
"confidential" or "proprietary" or with words of similar
meaning at the time of disclosure, was subsequently summarized
in writing within sixty (60) days after disclosure by the
disclosing entity or Party and marked "confidential" or
"proprietary" or with words of similar meaning, or (3)
consists of information and documentation included within any
of the following categories: (a) customer, supplier or
contractor lists, (b) customer, supplier or contractor
information, (c) information regarding business plans
(strategic and tactical), markets and operations (including
performance), (d) information regarding administrative,
financial or marketing activities or results, (e) pricing
information, (f) personnel information, (g) products and
product and service offerings (including specifications and
designs), (h) processes (e.g., logistical and engineering),
(i) budgets and financial results, (j) premium data and loss
information, (k) identities of agents and brokers and the
nature of UICI's agreements with them, (l) UICI's third party
contracts to which Insurdata has had access, and (m) any
information derived from such information.
(b) Obligations
(1) Insurdata and UICI shall not disclose, and shall
maintain the confidentiality of, all Proprietary
Information of the other Party. UICI and Insurdata
shall each use at least the same degree of care to
safeguard and to prevent disclosing to third parties
the Proprietary Information of the other as it
employs to avoid unauthorized disclosure,
publication, dissemination, destruction, loss or
alteration of its own information (or information of
its customers) of a similar nature, but not less than
reasonable care. The Parties may disclose Proprietary
Information to their Affiliates, auditors, attorneys,
accountants, consultants and Subcontractors, where:
(i) use by such person or entity is authorized under
this Agreement; (ii) such disclosure is necessary for
the performance of such person's or entity's
obligations under or with respect to this Agreement
or otherwise naturally occurs in such person's or
entity's scope of responsibility; (iii) the person or
entity (and its applicable officers and employees)
agree in writing to assume the obligations
substantially similar to those described in this
Section 13.3; and (iv) the disclosing Party assumes
full responsibility for the acts or omissions of such
person or entity and takes all reasonable measures to
ensure that the Proprietary Information is not
disclosed or used in contravention of this Agreement.
Each Party's Proprietary Information shall remain the
property of such Party.
(2) Neither Party shall: (i) make any use or copies of,
or use, the Proprietary Information of the other
Party except as contemplated by this Agreement; (ii)
acquire any right in or assert any lien against the
Proprietary Information of the other Party; (iii)
sell, assign, transfer, lease or otherwise dispose of
Proprietary Information to third parties or
commercially exploit such information, including
through derivative works; or (iv) refuse for any
reason (including a default or material breach of
this Agreement by the other Party) to promptly
provide the other Party's Proprietary Information
(including copies thereof) to the other Party if
requested to do so (in the case of UICI Data, in the
form reasonably requested if UICI is paying for their
return). Upon expiration or any termination of this
Agreement and completion of each Party's obligations
under this Agreement, each Party shall return or
destroy, as the other Party may direct, all
documentation in any medium that contains, refers to,
or relates to the other Party's Proprietary
Information, and retain no copies. In addition, the
Parties shall take reasonable steps to ensure that
their employees comply with these confidentiality
provisions.
(c) Exclusions. Section 13.3(b) shall not apply to any particular
information that the receiving Party can demonstrate (i) is,
at the time of disclosure to it, in the public domain; (ii)
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after disclosure to it, is published or otherwise becomes part
of the public domain through no fault of the receiving Party;
(iii) is in the possession of the receiving Party at the time
of disclosure to it; (iv) is received from a third party
having a lawful right to disclose such information; or (v) is
independently developed by the receiving Party without
subsequent reference to Proprietary Information of the
furnishing Party. In addition, the receiving Party shall not
be considered to have breached its obligations under this
Section 13.3 for disclosing Proprietary Information of the
other Party as required to satisfy any legal requirement of a
competent government body, provided that, promptly upon
receiving any such request and to the extent that it may
legally do so, such Party advises the other Party of the
Proprietary Information to be disclosed and the identity of
the third party requiring such disclosure prior to making such
disclosure in order that the other Party may interpose an
objection to such disclosure, take action to assure
confidential handling of the Proprietary Information, or take
such other action as it deems appropriate to protect the
Proprietary Information. It is understood that the receipt of
Proprietary Information under this Agreement will not limit or
restrict assignment or reassignment of employees of UICI and
Insurdata within or between the respective Parties and their
Affiliates.
(d) Loss of Proprietary Information. Each Party shall: (i)
promptly notify the other Party in writing of any possession,
use, knowledge, disclosure or loss of such other Party's
Proprietary Information in contravention of this Agreement;
(ii) promptly furnish to the other Party all known details and
reasonably assist such other Party in investigating and/or
preventing the recurrence of such possession, use, knowledge,
disclosure or loss; (iii) reasonably cooperate with the other
Party in any investigation or litigation deemed necessary by
such other Party to protect its rights; and (iv) promptly use
all commercially reasonable efforts to prevent further
possession, use, knowledge, disclosure or loss of Proprietary
Information in contravention of this Agreement. Each Party
shall bear any costs it incurs in complying with this Section
13.3(d).
(e) No Implied Rights. Nothing contained in this Section 13.3
shall be construed as obligating a Party to disclose its
Proprietary Information to the other Party, or as granting to
or conferring on a Party, expressly or impliedly, any rights
or license to any Proprietary Information of the other Party.
(f) Survival. The Parties' obligations of non-disclosure and
confidentiality shall survive the expiration or termination of
this Agreement for a period of five (5) years.
(g) Limitation. Neither Party shall be responsible for the loss,
corruption, damage or mistransmission of data during the
transmission of such data by a third party telecommunications
provider unless to the extent such loss, damage or
mistransmission is attributable to error or either Party's
failure to perform its obligations under this Agreement.
13.4 File Access
UICI will have unrestricted access to, and the right to review and
retain the relevant portion of all computer or other files containing
UICI Data. At no time will any of such files or other materials or
information be stored or held in a form or manner not readily
accessible to UICI. Insurdata will provide to the UICI Project
Executive all passwords, codes, comments, keys, documentation and the
locations of any such files and other materials promptly upon the
request of UICI, including Equipment and Software keys and such
information as to format, encryption (if any) and any other
specification or information necessary for UICI to retrieve, read,
revise and/or maintain such files and information. Upon the request of
the UICI Project Executive, Insurdata will confirm that, to the best of
its knowledge, all files and other information provided to UICI are
complete and that no material element, amount or other fraction of such
files or other information to which UICI may request access or review
has been deleted, withheld, disguised or encoded in a manner
inconsistent with the purpose and intent of providing full and complete
access to UICI as contemplated by this Agreement.
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14. OWNERSHIP OF MATERIALS
14.1 UICI Owned Materials
UICI shall be the sole and exclusive owner of the UICI Owned Materials
and all Developed Materials unless Insurdata acquires ownership of any
Developed Materials pursuant to Section 14.2(b) below. Insurdata does
hereby absolutely and unconditionally assign and transfer to UICI any
and all right, title and interest Insurdata may have, or claim to have,
in and to all Materials which have been previously developed by
Insurdata for UICI under the Existing Agreements (the "Existing
Materials"), and Insurdata does hereby acknowledge and agree that UICI
is the sole and exclusive owner of same. UICI accepts such Existing
Materials in their present condition, and Insurdata agrees that it will
continue to provide support, maintenance and enhancements to same as
part of the Services.
14.2 Developed Materials
(a) Unless the Parties agree otherwise in writing, all Developed
Materials shall be considered works made for hire (as that
term is used in Section 101 of the Copyright Act) that are
owned by UICI or the applicable Eligible Recipient. If any
such Developed Materials may not be considered a work made for
hire under applicable law, Insurdata hereby irrevocably
assigns, and shall assign, to UICI or the appropriate Eligible
Recipient, without further consideration, all of Insurdata's
right, title and interest in and to such Developed Materials,
including United States and foreign intellectual property
rights. Insurdata acknowledges that UICI and the Eligible
Recipients and their successors and assigns shall have the
right to obtain and hold in their own name any intellectual
property rights in and to such Developed Materials. Insurdata
agrees to execute any documents and take any other actions
reasonably requested by UICI to effectuate the purposes of
this Section 14.2. UICI grants to Insurdata a non-exclusive,
non-transferable, worldwide, limited right and license to use,
execute, reproduce, display, perform, modify and distribute
the Developed Materials and the Existing Materials for the
sole purpose of providing the Services during the Term and the
Transfer Assistance Period pursuant to this Agreement;
provided that this license does not give Insurdata the right,
and Insurdata is not authorized, to sublicense such Developed
Materials or use them for the benefit of other customers or
for any other purpose without UICI's prior written consent.
(b) With respect to any specified Existing Materials (including,
without limitation, the sales automation and student
administration and claims software solutions) and any
specified Developed Materials consisting of custom software
solutions developed by Insurdata for UICI as part of Services
provided to UICI under this Agreement ("Developed Software"),
UICI and Insurdata may, at the request of Insurdata and at the
option of UICI, enter into an agreement pursuant to which
Insurdata: (a) may grant to third parties non-exclusive
licenses to use any specified Existing Materials or Developed
Software or (b) may obtain from UICI a non-exclusive license
to use any specified Existing Materials or Developed Software
for third parties. In either event, UICI shall have the
unrestricted right to use the Existing Materials or Developed
Software, to own the code for all Existing Materials and
Developed Software and shall be entitled to all upgrades and
software maintenance as is provided to other third party
licensees. For each specified item of Developed Software for
which Insurdata and UICI enter into an agreement as herein
provided, such agreement shall specify that: (a) 25% of any
and all royalty payments due to Insurdata from third-party
licensees for the use of Developed Software shall be paid by
Insurdata to UICI, such payments to be applied, first, to
generate for UICI a twelve percent (12%) annual return on
unamortized software development costs for the specified
Developed Software and, second, to amortize the software
development costs for the specified Developed Software, and
(b) after all software development costs for the specified
Developed Software have been fully amortized, ownership of the
specified Developed Software shall pass to Insurdata, subject
to reservation by UICI and each Eligible Recipient of a
non-exclusive license, with the right to grant sublicenses to
UICI Affiliates, to use, copy and create derivative works of
the source code and object code versions of such Developed
Software. If the parties do not enter into such an agreement
for particular Developed Software, UICI shall retain and own
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all right, title and interest in such Developed Software and
in all intellectual property rights therein. In addition, UICI
shall own all right, title and interest in all other materials
fixed in tangible form by Insurdata to perform its obligations
under the Agreement and all intellectual property rights
therein.
(c) Insurdata shall provide UICI with the source code and
documentation for the Existing Materials and for all Developed
Materials which are created in accordance with this Agreement.
Insurdata represents and warrants that: (i) the source code
and documentation for such Developed Materials will be
sufficient to allow a reasonably knowledgeable and experienced
systems programmer to maintain and support such Materials;
(ii) the user documentation for such Materials will accurately
describe in terms understandable by a typical end user the
functions and features of such Developed Materials and the
procedures for exercising such functions and features; and
(iii) all Developed Software shall have the appropriate source
code which matches with the executable object code version.
With respect to the Existing Materials, Insurdata agrees that
it will revise or create such documentation pertaining thereto
as UICI may request from time to time as part of the Services.
14.3 Other Materials
This Agreement shall not confer upon either Party intellectual property
rights in Materials of the other Party (to the extent not covered by
this Article 14) unless otherwise so provided elsewhere in this
Agreement.
14.4 General Rights
(a) Copyright Legends. The Parties agree to reproduce copyright
legends which appear on any portion of the Materials which may
be owned by third parties.
(b) No Implied Licenses. Except as expressly specified in this
Agreement, nothing in this Agreement shall be deemed to grant
to one Party, by implication, estoppel or otherwise, license
rights, ownership rights or any other intellectual property
rights in any Materials owned by the other Party or any
Affiliate of the other Party (or, in the case of Insurdata,
any Eligible Recipient).
14.5 UICI Rights Upon Expiration or Termination of Agreement
As part of the Transfer Assistance Services, Insurdata shall provide
the following to UICI and the Eligible Recipients with respect to
Materials and Software:
(a) UICI Owned Materials and Developed Materials. Insurdata shall:
(1) deliver to UICI all Developed Materials in the format
and medium in use by Insurdata in connection with the
Services as of the date of such expiration or
termination, and shall ensure that all delivered
source code matches with the then current production
version of the object code as delivered; and
(2) following confirmation by UICI that the copies of the
UICI Owned Materials delivered by Insurdata are
acceptable and the completion by Insurdata of any
Transfer Assistance Services for which such Materials
are required, destroy or securely erase all other
copies of such Materials then in Insurdata's
possession and cease using such Materials for any
purpose; provided, however, that Insurdata may retain
one (1) copy of the UICI Data to determine
Insurdata's rights under this Agreement.
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15. REPRESENTATIONS AND WARRANTIES
15.1 Work Standards
Insurdata represents and warrants that the Services shall be executed
in a timely and workmanlike manner, in accordance with the practices of
the information technology outsourcing industry and the Performance
Standards. Insurdata covenants that it shall use qualified individuals
with the experience, competence and skill necessary to perform the
Services.
15.2 Maintenance
Insurdata represents and warrants that it shall, as part of the
Services, maintain the UICI Equipment and UICI Software: (i) in good
operating condition, subject to normal wear and tear; (ii) undertaking
repairs and preventive maintenance on Equipment for which Insurdata is
designated to be responsible hereunder in accordance with the
applicable Equipment manufacturer's recommendations and requirements;
and (iii) performing Software maintenance in accordance with the
applicable Software vendor's written documentation. For Third Party
Equipment and Software no longer supported by the licensor or
manufacturer Insurdata shall use commercially reasonable efforts to
perform maintenance as required.
15.3 Efficiency and Cost Effectiveness
Insurdata shall use its best efforts to provide the Services in a
cost-effective manner consistent with the Performance Standards.
Without limiting the generality of the foregoing, such actions shall
include:
(a) considering the economic circumstances in which the Services
are provided, including the impact upon UICI and the Eligible
Recipients of alternative technologies, applicable economies
of scale, costs associated with compliance with Laws and
Insurdata's projections of UICI's retained resource
requirements;
(b) making adjustments in the timing of actions (consistent with
UICI's priorities and schedules for the Services and
Insurdata's obligation to meet the Performance Standards);
(c) delaying or accelerating, as appropriate, the performance of
noncritical functions within limits acceptable to UICI;
(d) tuning or optimizing the systems, including memory, used to
perform the Services (including providing advice and
suggestions to UICI to assist UICI in UICI's tuning of
Applications Software to optimize performance and minimize
costs);
(e) controlling its use of the UICI data network by scheduling
usage, where possible, to low utilization periods;
(f) using alternative technologies to perform the Services when
approved by UICI; and
(g) efficiently using resources for which UICI is charged
hereunder, consistent with industry norms, and compiling data
concerning such efficient use in segregated and auditable form
whenever possible.
15.4 Developed Materials
Insurdata represents and warrants that the Developed Materials will
perform and function in conformance with the specifications for the
same. Insurdata does not assure uninterrupted or error-free operation
of the Developed Materials, or that the Developed Materials will be
free of bugs, defects or mistakes, or that Insurdata will correct all
defects therein.
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15.5 Non-Infringement
Each Party represents and warrants that it shall perform its
responsibilities under this Agreement in a manner that does not
infringe, or constitute an infringement or misappropriation of, any
U.S. patent, copyright, trademark or similar proprietary rights
conferred by contract or by common law or by the law of the U.S. or any
state therein of any third party; provided, however, that the
performing Party shall not have any obligation or liability to the
extent any infringement or misappropriation is caused by (i)
modifications or misuse made by the other Party or its subcontractors
without the knowledge or approval of the performing Party, (ii) the
other Party's combination of the performing Party's work product or
Materials with items not furnished or specified by the performing Party
or contemplated by this Agreement, (iii) a breach of this Agreement by
the other Party, or (iv) Third Party Software, except to the extent
that such infringement or misappropriation arises from the failure of
the performing Party to obtain the necessary licenses or Required
Consents or to abide by the limitations of the applicable Third Party
Software licenses. In addition, Insurdata represents and warrants that
it will use commercially reasonable efforts to obtain intellectual
property indemnification for UICI pursuant to any agreements that
Insurdata enters into after the Effective Date in connection with
providing the Services with respect to Third Party Software, from the
suppliers of such Software, that is comparable to the intellectual
property indemnification provided by Insurdata to UICI under this
Agreement, and will use reasonable efforts to notify UICI of all
failures to obtain such indemnification.
15.6 Authorization
Each Party represents and warrants to the other that:
(a) It is a corporation duly incorporated, validly existing and in
good standing under the laws of its state of incorporation;
(b) It has the requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(c) It has obtained all licenses, authorizations, approvals,
consents or permits required to perform its obligations under
this Agreement under all applicable federal, state or local
laws and under all applicable rules and regulations of all
authorities having jurisdiction over the Services;
(d) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated by this
Agreement have been duly authorized by the requisite corporate
action on the part of such Party; and
(e) The execution, delivery and performance of this Agreement
shall not constitute a violation of any judgment, order or
decree; a material default under any material contract by
which it or any of its material assets are bound; or an event
that would, with notice or lapse of time, or both, constitute
such a default.
15.7 Malicious Code
Each Party represents and warrants that it shall take commercially
reasonable actions and precautions to prevent the introduction and
proliferation, and reduce the effects, of any Malicious Code into
UICI's information technology environment or any system used by
Insurdata to provide the Services. Insurdata shall provide corrective
Services at no cost to UICI in the event any Malicious Code is
introduced as a result of Insurdata's gross negligence or willful
misconduct.
15.8 Disabling Code
Neither Party shall without the prior written consent of the other
Party insert into the Software any code which could be invoked to
disable or otherwise shut down all or any portion of the Services. With
respect to any disabling code that may be part of the Software, neither
Party shall invoke or cause to be invoked such disabling code at any
time, including upon expiration or termination of this Agreement for
any reason, without the other Party's prior written consent.
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15.9 Compliance with Laws
Each Party represents and warrants that the Software, Materials and
Services provided by such Party shall be in compliance with all
applicable Laws on the Effective Date and shall remain in compliance
with such Laws for the entire Term of the Agreement. Insurdata shall
comply with all Laws applicable to the provision of Services. UICI
shall comply with all Laws applicable to the receipt of Services.
15.10 Remedy
In the event of any breach by Insurdata of any of the warranties set
forth in this Article 15, Insurdata shall promptly correct or cause the
correction of the deficiencies giving rise to the breach without charge
to UICI. In the event of any breach by UICI of any of the warranties
set forth in this Article 15, UICI shall promptly correct or cause the
correction of the deficiencies giving rise to the breach without charge
to Insurdata. In the event of any breach of a warranty set forth in
this Article 15 that causes a significant impact on UICI's ability to
perform a material function required by UICI's business, Insurdata
shall use its diligent efforts to correct the deficiency within
twenty-four (24) hours after Insurdata discovers or receives notice of
the deficiency; if failure to restore begins to materially affect
UICI's business, Insurdata will use its best commercially reasonable
efforts to restore critical production functions as soon as possible.
15.11 Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY SERVICES,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
16. INSURANCE AND RISK OF LOSS
16.1 Insurance
(a) Requirements. Insurdata agrees to keep in full force and
effect and maintain at its sole cost and expense the following
policies of insurance during the term of this Agreement:
(1) Workers' Compensation and Employer's Liability Insurance:
(i) Statutory Workers' Compensation including
occupational disease in accordance with
applicable Laws.
(ii) Employer's Liability Insurance with minimum
limits reasonably acceptable to UICI.
(2) Commercial General Liability Insurance and Umbrella
Liability Insurance (including contractual liability
insurance) providing coverage for bodily injury and
property damage with combined single limits of not
less than one million dollars ($1,000,000) per
occurrence, and two million dollars ($2,000,000) in
the aggregate.
(3) Commercial Business Automobile Liability Insurance
including coverage for all owned, non-owned, leased
and hired vehicles providing coverage for bodily
injury and property damage liability with combined
single limits of not less than one million dollars
($1,000,000) per occurrence.
(4) Employee Dishonesty and Computer Fraud Insurance
covering losses arising out of or in connection with
any fraudulent or dishonest acts committed by
Insurdata Personnel, acting alone or with others, in
an amount not less than five million dollars
($5,000,000) per occurrence.
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(b) Approved Companies. If applicable, Insurdata may self insure
to the extent allowed by law.
(c) Endorsements. With respect to subsections (a)(2) and (a)(3)
above, Insurdata's insurance policies as required herein shall
name UICI and all of its subsidiaries, Affiliates, officers,
directors, agents, servants and employees as Additional
Insureds for any and all liability arising at any time in
connection with Insurdata's performance under this Agreement.
Insurdata shall obtain such endorsements to its policy or
policies of insurance as are necessary to cause the policy or
policies to comply with the requirements stated herein.
(d) Certificates. Insurdata shall upon UICI's request provide UICI
with certificates of insurance evidencing compliance with this
Article 16 (including evidence of renewal of insurance) signed
by authorized representatives of the respective carriers for
each year that this Agreement is in effect. Each certificate
of insurance shall include a statement that the issuing
company shall not cancel, nonrenew, reduce or otherwise change
the insurance afforded under the above policies unless thirty
(30) days' notice of such cancellation, nonrenewal, reduction
or change has been provided to:
UICI
4001 McEwen
Suite 200
Dallas, Texas 75244
Attention: General Counsel
(e) No Implied Limitation. The obligation of Insurdata to provide
the insurance specified herein shall not limit in any way any
obligation or liability of Insurdata provided elsewhere in
this Agreement.
16.2 Risk of Loss
Except as provided below, each Party shall be responsible for risk of loss of,
and damage to, any Equipment, Software or other Materials owned by it. Each
Party shall promptly notify the other of any damage (except normal wear and
tear), destruction, loss, theft or governmental taking of any item of Equipment,
Software or other Materials in the possession of such Party or on its premises
of such Party, whether or not insured against by such Party, whether partial or
complete ("Event of Loss"). For any UICI Event of Loss, Insurdata shall
cooperate and assist UICI with respect to the repair or replacement as part of
the Services. Insurdata shall be responsible for any such UICI Event of Loss
which results from Insurdata's gross negligence or willful misconduct.
17. INDEMNITIES
17.1 Indemnity by Insurdata
Insurdata agrees to indemnify, defend and hold harmless UICI and the
Eligible Recipients and their respective officers, directors,
employees, agents, Affiliates, successors and assigns from any and all
Losses and threatened Losses due to third party claims arising from or
in connection with any of the following:
(a) Insurdata's breach of any of its representations and
warranties set forth in this Agreement, or arising out of
Insurdata's failure to observe or perform any of its
covenants, duties or obligations to be observed or performed
pursuant to this Agreement after the Effective Date;
(b) Insurdata's breach of its material obligations with respect to
UICI Proprietary Information;
(c) Occurrences that Insurdata is required to insure against
pursuant to Section 16.1, to the extent of Insurdata's actual
coverage under its insurance policies, or in the event
Insurdata fails to obtain the applicable insurance policy
pursuant to Section 16.1, to the extent of the coverage
required therein; provided, however, that this provision shall
not limit UICI's right to indemnity under any other provision
of this Article 17;
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(d) Infringement or alleged infringement of a patent, trade
secret, copyright or other proprietary rights conferred by
contract, common law or by the law of the U.S. or any state
therein in contravention of Insurdata's representations and
warranties in Section 15.5 provided that Insurdata shall have
no obligation with respect to any Losses to the extent the
same arises out of or in connection with UICI's modification
or misuse of Equipment, systems, programs or products, or
UICI's combination, operation or use with devices, data,
Equipment, systems, programs or products not furnished by
Insurdata or its subcontractors or agents; provided, further,
that if such a claim is made or appears likely to be made,
UICI agrees to permit Insurdata to obtain the right for UICI
to continue to use such Equipment, system, program or product,
or to modify it or replace it with one that is at least
functionally equivalent;
(e) Claims by government regulators or agencies for fines,
penalties, sanctions or other remedies arising from or in
connection with Insurdata's failure to perform its
responsibilities under this Agreement to the extent such
fines, penalties, sanctions or other remedies related to such
failure were caused by Insurdata and not by UICI or at UICI's
direction and to the extent that UICI provides to Insurdata
notice of the basis of the same;
(f) Taxes assessed against UICI, together with interest and
penalties, that are the responsibility of Insurdata under
Section 11.3; and
(g) Products, services or systems provided by Insurdata or its
Subcontractors or authorized distributors directly to a third
party, unless or to the extent such claim arises from the acts
or omissions of UICI, or from the UICI Owned Software.
17.2 Indemnity by UICI
UICI agrees to indemnify, defend and hold harmless Insurdata and its
officers, directors, employees, agents, Affiliates, successors and
assigns from any Losses and threatened Losses due to third party claims
arising from or in connection with any of the following:
(a) UICI's breach of any of its representations and warranties set
forth in this Agreement, or arising out of UICI's failure to
observe or perform any of its covenants, duties or obligations
to be observed or performed pursuant to this Agreement after
the Effective Date;
(b) UICI's breach of its material obligations with respect to
Insurdata's Proprietary Information;
(c) Infringement or alleged infringement of a patent, trade
secret, copyright or other proprietary rights conferred by
contract, common law or by the law of the U.S. or any state
therein in contravention of UICI's representations and
warranties in Section 15.5 provided that UICI shall have no
obligation with respect to any Losses to the extent the same
arises out of or in connection with Insurdata's modification
or misuse of Equipment, systems, programs or products, or
Insurdata's combination, operation or use with devices, data,
Equipment, systems, programs or products not furnished by UICI
or its subcontractors or agents; provided, further, that if
such a claim is made or appears likely to be made, Insurdata
agrees to permit UICI to obtain the right for Insurdata to
continue to use such Equipment, system, program or product, or
to modify it or replace it with one that is at least
functionally equivalent;
(d) Taxes assessed against Insurdata or its agents, together with
interest and penalties, that are the responsibility of UICI
under Section 11.3;
(e) Products, services or systems provided by UICI or any Eligible
Recipient to a third party; and
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(f) Claims by government regulators or agencies for fines,
penalties, sanctions or other remedies arising from or in
connection with UICI's failure to perform its responsibilities
under this Agreement to the extent such fines, penalties,
sanctions or other remedies related to such failure were
caused by UICI and not by Insurdata or at Insurdata's
direction.
17.3 Additional Indemnities
Insurdata and UICI each agree to indemnify, defend and hold harmless
the other, and the Eligible Recipients and their respective Affiliates,
officers, directors, employees, agents, successors and assigns, from
any and all Losses and threatened Losses to the extent they arise from
or in connection with any of the following: (a) the death or bodily
injury of any agent, employee, customer, business invitee, business
visitor or other person caused by the negligence or other tortious
conduct of the indemnitor; (b) the damage, loss or destruction of any
real or tangible personal property caused by the negligence or other
tortious conduct of the indemnitor; and (c) any claim, demand, charge,
action, cause of action or other proceeding asserted against the
indemnitee but resulting from an act or omission of the indemnitor in
its capacity as an employer or potential employer of a person.
17.4 Infringement
(a) If any item used by Insurdata to provide the Services becomes
the subject of an infringement or misappropriation claim or
proceeding, Insurdata shall, unless such item was provided by
UICI or an Eligible Recipient or was used at the request of
either UICI or an Eligible Recipient, promptly take one of the
following actions at no additional charge to UICI: (i) secure
the right to continue using the item; or (ii) replace or
modify the item to make it non-infringing, provided that any
such replacement or modification will not materially degrade
the performance or quality of the affected component of the
Services. If alternatives (i) and (ii) are not feasible,
Insurdata shall remove the item from the Services and
equitably adjust the Charges, if appropriate, to reflect such
removal.
(b) If any item provided by UICI to Insurdata in its provision of
the Services becomes, or in UICI's reasonable opinion is
likely to become, the subject of an infringement or
misappropriation claim or proceeding, UICI shall promptly take
one of the following actions at no charge to Insurdata: (i)
secure the right to continue using the item; or (ii) replace
or modify the item to make it non-infringing, provided that
any such replacement or modification will not materially
degrade the performance or quality of the affected component
of the Services. As part of the Services, Insurdata will
cooperate with and assist UICI in taking such action.
17.5 Indemnification Procedures
With respect to third party claims (other than those covered by Section
17.1(e) and 17.2(f), the following procedures shall apply:
(a) Notice. Promptly after receipt by any entity entitled to
indemnification (under Sections 17.1 through 17.3) of notice
of the commencement or threatened commencement of any civil,
criminal, administrative or investigative action or proceeding
involving a claim in respect of which the indemnitee will seek
indemnification pursuant to any such Section, the indemnitee
shall notify the indemnitor of such claim in writing. No delay
or failure to so notify an indemnitor shall relieve it of its
obligations under this Agreement except to the extent that
such indemnitor has been harmed by such delay or failure.
Within fifteen (15) days following receipt of written notice
from the indemnitee relating to any claim, but no later than
five (5) days before the date on which any response to a
complaint or summons is due, the indemnitor shall notify the
indemnitee in writing that the indemnitor elects to assume
control of the defense and settlement of that claim (a "Notice
of Election").
(b) Procedure Following Notice of Election. If the indemnitor
delivers a Notice of Election within the required notice
period, the indemnitor shall assume sole control over the
defense and settlement of the claim; provided, however, that
(i) the indemnitor shall keep the indemnitee fully apprised at
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all times as to the status of the defense, and (ii) the
indemnitor shall obtain the prior written approval of the
indemnitee before entering into any settlement of such claim
imposing any obligations or restrictions on the indemnitee or
ceasing to defend against such claim. The indemnitor shall not
be liable for any legal fees or expenses incurred by the
indemnitee following the delivery of a Notice of Election;
provided, however, that (i) the indemnitee shall be entitled
to employ counsel at its own expense to participate in the
handling of the claim, and (ii) the indemnitor shall pay the
fees and expenses associated with such counsel if, in the
reasonable judgment of the indemnitee, based on an opinion of
counsel, there is a conflict of interest with respect to such
claim. The indemnitor shall not be obligated to indemnify the
indemnitee for any amount paid or payable by such indemnitee
in the settlement of any claim if (x) the indemnitor has
delivered a timely Notice of Election and such amount was
agreed to without the written consent of the indemnitor, (y)
the indemnitee has not provided the indemnitor with notice of
such claim and a reasonable opportunity to respond thereto, or
(z) the time period within which to deliver a Notice of
Election has not yet expired.
(c) Procedure Where No Notice of Election Is Delivered. If the
indemnitor does not deliver a Notice of Election relating to
any claim within the required notice period, the indemnitee
shall have the right to defend the claim in such manner as it
may deem appropriate, at the reasonable cost and expense of
the indemnitor. The indemnitor shall promptly reimburse the
indemnitee for all such reasonable costs and expenses.
17.6 Indemnification Procedures -- Governmental Claims
With respect to claims covered by Section 17.1(e) or Section 17.2(f),
the following procedures shall apply:
(1) Notice. Promptly after receipt by the indemnitee of notice of
the commencement or threatened commencement of any action or
proceeding involving a claim in respect of which the
indemnitee will seek indemnification pursuant to Section
17.1(e) or Section 17.2(f), the indemnitee shall notify the
indemnitor of such claim in writing. No delay or failure to so
notify the indemnitor shall relieve the indemnitor of its
obligations under this Agreement except to the extent that the
indemnitor has been harmed by such delay or failure.
(2) Procedure for Defense. The indemnitee shall be entitled to
have sole control over the defense and settlement of such
claim; provided, however, that the indemnitee shall obtain the
prior approval of the indemnitor before entering into any
settlement of such claim involving the payment of moneys for
which the indemnitor will ultimately be financially
responsible under Section 17.1(e) or Section 17.2(f).
17.7 Subrogation
In the event that an indemnitor shall be obligated to indemnify an
indemnitee pursuant to Sections 17.1 through 17.3 or any other
provision of this Agreement, the indemnitor shall, upon payment of such
indemnity in full, be subrogated to all rights of the indemnitee with
respect to the claims to which such indemnification relates.
18. LIABILITY
18.1 General Intent
Subject to the specific provisions of this Article 18, it is the intent
of the Parties that each Party shall be liable to the other Party for
any actual damages incurred by the non-breaching Party as a result of
the breaching Party's failure to perform its obligations in the manner
required by this Agreement.
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18.2 Force Majeure
(a) Subject to Section 18.2(d), no Party shall be liable for any
default or delay in the performance of its obligations under
this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by fire, flood, earthquake,
elements of nature or acts of God, wars, riots, civil
disorders, rebellions or revolutions, failure of
telecommunications carriers, strikes or lockouts or labor
disputes by third parties, or any other similar cause beyond
the reasonable control of such Party (each a "Force Majeure");
provided that the non-performing Party cannot reasonably
circumvent the delay through the use of commercially
reasonable alternate sources, workaround plans or other means.
A labor dispute involving a Party (or, in the case of
Insurdata, a Subcontractor) and its own personnel shall not
excuse such Party from its obligations hereunder.
(b) In such event the non-performing Party shall be excused from
further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such
Party continues to use commercially reasonable efforts to
recommence performance or observance whenever and to whatever
extent possible without delay. Any Party so prevented,
hindered or delayed in its performance shall immediately
notify the Party to whom performance is due by telephone (to
be confirmed in writing within five (5) days of the inception
of such delay) and describe at a reasonable level of detail
the circumstances of such Force Majeure event.
(c) If any event described in Section 18.2(a) substantially
prevents, hinders or delays the performance by Insurdata or
one of its Subcontractors of Services associated with critical
UICI functions (i.e., functions the non-performance of which
would have an adverse effect on the conduct of UICI's
business) UICI may procure such Services from an alternate
source, and Insurdata shall be liable for payment for such
services from the alternate source for so long as the delay in
performance shall continue, up to the maximum amount of the
charges, if any, actually paid to Insurdata for the specific
portion of the Services which have been prevented, hindered or
delayed with respect to the period of non-performance. In
addition, if any event described in Section 18.2(a)
substantially prevents, hinders or delays the performance by
Insurdata or one of its Subcontractors of Services associated
with critical UICI functions for more than one hundred and
eighty (180) days, UICI, at its option, may terminate any
portion of this Agreement so affected without payment of
Termination Charges and UICI will pay Insurdata any reasonable
Out-of-Pocket Expenses associated with ramp-down transition
costs.
(d) Upon the occurrence of a Force Majeure event, Insurdata shall,
to the extent possible, implement promptly, as appropriate,
its disaster recovery plan and provide disaster recovery
services therewith, in each case as described in the Policy
and Procedures Manual. The occurrence of a Force Majeure event
shall not relieve Insurdata of its obligation to implement its
disaster recovery plan and provide disaster recovery services.
(e) Except as stated in Section 18.2(c), nothing in this Section
shall limit or otherwise relieve UICI's obligation to pay any
moneys due Insurdata under the terms of this Agreement;
provided that if Insurdata fails to provide Services in
accordance with this Agreement due to the occurrence of a
Force Majeure event, all amounts payable to Insurdata
hereunder shall be equitably adjusted in a manner such that
UICI is not required to pay any amounts for Services that it
is not receiving.
(f) Without limiting Insurdata's obligations under this Agreement,
whenever a Force Majeure event causes Insurdata to allocate
limited resources between or among Insurdata's customers and
Affiliates, UICI shall be treated at least as favorably as
other similarly situated customers expending comparable
amounts on an annual basis for the same or substantially
similar services.
18.3 Limitation of Liability
(a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, COLLATERAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR
SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE
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FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Section 18.3(a) shall not limit Insurdata's right to
recover any amounts becoming due for Services provided under
the Agreement.
(b) Except as provided below, the total aggregate liability of
either Party for claims asserted by the other Party under or
in connection with this Agreement, regardless of the form of
the action or the theory of recovery, shall be limited, in
aggregate to an amount equal to the total payments received by
Insurdata pursuant to this Agreement and/or the Existing
Agreements for one year prior to the month in which the first
event giving rise to the liability occurred.
(c) The limitations of liability set forth in Section 18.3(b)
shall not apply with respect to (i) any obligation or failure
by UICI to pay any amounts due or past due and owing to
Insurdata pursuant to the terms of the Agreement; (ii) Losses
by either Party for bodily injury or damage to real property
or tangible personal property; and (iii) either Party's
obligation to indemnify the other Party as provided in
Sections 17.1(b), 17.1(d), 17.1(f), 17.1(g), 17.2(b), 17.2(c)
and 17.2(d).
(d) Failure by a Party to pay valid and accurate charges due and
payable hereunder will not be counted toward the liability
cap.
(e) The following shall be considered direct damages and neither
Party shall assert that they are indirect, incidental,
collateral, consequential or special damages or lost profits
to the extent they result directly from either Party's failure
to perform in accordance with this Agreement:
(1) Costs and expenses of recreating or reloading any
lost, stolen or damaged UICI data;
(2) Costs and expenses of implementing a workaround in
respect of a failure to provide the Services or any
part thereof;
(3) Costs and expenses of replacing lost, stolen or
damaged Equipment, Software and Materials;
(4) Costs and expenses incurred to procure the Services
from an alternate source, to the extent in excess of
Insurdata's charges under this Agreement;
(5) Straight time, overtime or related expenses incurred
by either Party, including overhead allocations for
employees, wages and salaries of additional
employees, travel expenses, overtime expenses,
telecommunication charges and similar charges, due to
failure of Insurdata to provide all or a portion of
the Services incurred in connection with (1) through
(4) above; and
(6) Payments or penalties imposed by a governmental body
or regulatory agency for failure to comply with
requirements or deadlines.
The provisions of this Section 18.3(e) are included solely for
the purpose of defining certain direct damages, and shall not
be deemed or construed as creating any liability for such
damages to the extent a Party may not be expressly liable for
such damages under the other terms and provisions of this
Agreement.
19. CONTRACT GOVERNANCE AND DISPUTE RESOLUTION
19.1 Informal Dispute Resolution
Prior to the initiation of formal dispute resolution procedures, the
Parties shall first attempt to resolve their dispute informally, as
follows:
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(a) The Parties agree that the UICI Contract Executive and the
Insurdata Project Executive will attempt in good faith to
resolve all disputes. In the event the UICI Contract Executive
and the Insurdata Project Executive are unable to resolve a
dispute in an amount of time that either Party deems
reasonable under the circumstances, such Party may refer the
dispute for resolution to the senior managers specified in
Section 19.1(b) below upon written notice to the other Party.
(b) Within five (5) business days of a notice under Section
19.1(a) above referring a dispute for resolution by senior
managers, the UICI Contract Executive and the Insurdata
Project Executive will each prepare and provide to the
Insurdata Vice President of Client Services and the UICI Chief
Information Officer or their designate, respectively,
summaries of the relevant information and background of the
dispute, along with any appropriate supporting documentation,
for their review. The designated representatives will confer
as often as they deem reasonably necessary in order to gather
and furnish to the other all information with respect to the
matter in issue which the parties believe to be appropriate
and germane in connection with its resolution. The
representatives shall discuss the problem and negotiate in
good faith in an effort to resolve the dispute without the
necessity of any formal proceeding. The specific format for
the discussions will be left to the discretion of the
designated representatives, but may include the preparation of
agreed-upon statements of fact or written statements of
position.
(c) During the course of negotiations under Section 19.1(a) or
19.1(b) above, all reasonable requests made by one Party to
another for non-privileged information, reasonably related to
the dispute, will be honored so each of the parties may be
fully advised of the other's position.
(d) Formal proceedings for the resolution of a dispute pursuant to
Section 19.2 may not be commenced until the earlier of:
(1) the senior managers under Section 19.1(b) above
concluding in good faith that amicable resolution
through continued negotiation of the matter does not
appear likely; and
(2) fifteen (15) days after the notice under Section
19.1(a) above referring the dispute to senior
managers.
This provision will not be construed to prevent a Party from
instituting, and a Party is authorized to institute, formal
proceedings earlier (i) to avoid the expiration of any
applicable limitations period, or (ii) to preserve a superior
position with respect to other creditors.
19.2 Binding Arbitration
If the Parties are unable to reach agreement on any dispute that arises
between the Parties relating to this Agreement within the time period
required in Section 19.1(d) above (the "Dispute Date"), then within ten
(10) days after the Dispute Date, each of the Parties shall each
simultaneously submit to each other in a sealed envelope its good faith
proposal to resolve the dispute.
If neither Party accepts the other Party's proposed solution for the
dispute as included in the sealed envelope within ten (10) days after
receipt of such proposal, the Parties shall submit the dispute to
binding arbitration to be conducted by an arbitrator selected by mutual
consent of the Parties, or if the Parties are unable to agree, then by
the American Arbitration Association. The arbitrator shall conduct an
arbitration in accordance with the rules of the American Arbitration
Association in Dallas, Texas, and shall select one of the two good
faith proposals to resolve the dispute. The decision of the arbitrator
as to such resolution shall be submitted in writing to, and be final
and binding on, the Parties. The cost of the arbitration shall be borne
in its entirety by the non-prevailing Party.
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19.3 Intentionally Omitted
19.4 Continued Performance
Each Party agrees that it shall, unless otherwise directed by the other
Party, continue performing its obligations under this Agreement
(including payment by UICI for the Services and providing all Services
and Transfer Assistance Services) while any dispute is being resolved
unless and until the Term ends.
19.5 Governing Law
This Agreement and performance under it shall be governed by and
construed in accordance with the applicable laws of the State of Texas,
without giving effect to the principles thereof relating to conflicts
of laws.
19.6 Expiration of Claims
No claims may be asserted by either Party more than two (2) years after
the later of (i) the date UICI received the invoice containing the
disputed Charge(s) or amount(s), (ii) the date on which the act or
omission giving rise to the claim occurred, or (iii) the date on which
such act or omission was or should have been discovered. Failure to
make such a claim within such two-year period shall forever bar the
claim.
20. TERMINATION
20.1 Termination for Cause
(a) If Insurdata:
(1) commits a material breach of this Agreement, which
breach is not cured within thirty (30) days after
written notice of the breach from UICI, unless such
breach cannot be reasonably cured in such 30 day
period, in which case UICI shall not have the right
to terminate if Insurdata promptly proceeds within
such 30 day period to commence curing the breach and
thereafter provides a reasonable workaround, or
functionally cures the breach, within 60 days from
receipt of the cure notice (or such longer period as
may be reasonably necessary when the breach is of a
type or nature that cannot be cured within the 60 day
period); or
(2) commits numerous breaches of its duties or
obligations which collectively constitute a material
breach of this Agreement, which breaches are not
cured within thirty (30) days after written notice of
the breaches from UICI, unless such breaches cannot
be reasonably cured in such 30 day period, in which
case UICI shall not have the right to terminate if
Insurdata promptly proceeds within such 30 day period
to commence curing the breach and thereafter provides
a reasonable workaround, or functionally cures the
breach, within 60 days from receipt of the cure
notice (or such longer period as may be reasonably
necessary when the breach is of a type or nature that
cannot be cured within the 60 day period);
then UICI may, by giving written notice to Insurdata,
terminate the Term with respect to all of the
Services, as of a date specified in the notice of
termination.
(b) If UICI commits a material breach of this Agreement (except
for material breaches caused by UICI's failure to make
undisputed payments as set forth in Section 20.1(c) below),
which breach is not cured within thirty (30) days after
written notice of the breach from Insurdata, unless such
breach cannot be reasonably cured in such 30 day period, in
which case Insurdata shall not have the right to terminate if
UICI promptly proceeds within such 30 day period to commence
curing the breach and thereafter provides a reasonable
workaround, or functionally cures the breach, within 60 days
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from receipt of the cure notice (or such longer period as may
be reasonably necessary when the breach is of a type or nature
that cannot be cured within the 60 day period); then Insurdata
may, by giving written notice to UICI, terminate the Term with
respect to all of the Services, as of a date specified in the
notice of termination.
(c) If UICI commits a material breach of this Agreement by failing
to make an undisputed payment to Insurdata which is due and
payable hereunder, which breach is not cured within thirty
(30) days after such payment becomes due and payable, then
Insurdata may, by giving written notice to UICI, terminate the
Term with respect to all of the Services, as of a date
specified in the notice of termination.
20.2 Critical Services
Without limiting UICI's rights under Section 20.1, if Insurdata commits
a material breach which has a significant impact on UICI's ability to
perform a material function required by UICI's business, and Insurdata
is unable to provide a reasonable workaround or functionally cure such
breach within three (3) UICI business days, or such longer period if
such breach requires disaster recovery services as soon as such
services are available, UICI may, in addition to its other remedies at
law and in equity, obtain from a third party or provide for itself such
services which will allow UICI to conduct UICI's business until
Insurdata has cured the breach or this Agreement is terminated. To the
extent UICI continues to pay the Charges to Insurdata which cover the
same portion of the Services as are being provided by the third party
during the period of breach, Insurdata shall reimburse UICI for all
costs and expenses of obtaining or providing such services for up to
one hundred eighty (180) days. The express inclusion of this remedy in
this Section 20.2 does not limit UICI's right to use a similar remedy
for other breaches by Insurdata of this Agreement.
20.3 Termination for Convenience
Either Party may terminate the Agreement for convenience and without
cause at any time by giving the other Party at least one hundred eighty
(180) days' prior written notice designating the termination date. In
the event that a purported termination for cause by UICI under Section
20.1 is determined by a competent authority not to be properly a
termination for cause, then such termination by UICI shall be deemed to
be a termination for convenience under this Section 20.3.
20.4 UICI's Right to Extend the Termination Date
Except in the case of a valid termination for cause by Insurdata
(unless UICI agrees to pay for Services provided by or for Insurdata in
advance and cures any payment default that causes such termination),
UICI may elect, upon sixty (60) days' prior written notice, to extend
the effective date of any expiration/termination or Transfer Assistance
one time, at its sole discretion, provided that the total of such
extension will not exceed one hundred and eighty (180) days following
the originally specified effective termination date without Insurdata's
prior written consent. For any notice or notices of such extensions
provided to Insurdata within thirty (30) days prior to the actual date
of termination, UICI shall reimburse Insurdata for additional expenses
reasonably incurred by Insurdata as a result thereof.
20.5 Termination upon Insurdata Change of Control
In the event of a Change in Control of HealthAxis (or other surviving
entity), UICI may terminate this Agreement by giving Insurdata notice
of the termination at least 90 days prior to the termination date
specified in the notice. For the purposes of this Agreement, a "Change
in Control" means a change in the legal, beneficial or equitable
ownership, directly or indirectly, of 50% or more of the aggregate of
all voting equity interests in an Entity or other equity interests
having the right to 50% or more of the profits of an Entity or, in the
event of dissolution, to 50% or more of the assets of an Entity; and,
in the case of a general partnership, also includes the holding by an
Entity (or one of its Affiliates) of the position of sole general
partner; and in the case of a corporation, also includes a material
change in the composition of the board of directors of an Entity;
provided, however, that a Change in Control of Insurdata shall not be
deemed to have occurred upon (a) the merger of HealthAxis and Insurdata
in accordance with the terms of the Merger Agreement and/or (b) upon
the subsequent merger of HealthAxis with and into Provident American
Corporation.
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20.6 Equitable Remedies
Insurdata acknowledges that, in the event it breaches (or attempts or
threatens to breach) its obligation to provide UICI Transfer Assistance
Services as provided in Section 4.2, UICI will be irreparably harmed.
In such a circumstance, UICI may proceed directly to court solely for
the purpose of seeking any equitable remedy available to UICI in such a
circumstance. In such event, Insurdata agrees that it will not utilize
as a defense that UICI did not suffer harm due to Insurdata's breach of
its obligations to provide UICI with Transfer Assistance Services.
21. GENERAL
21.1 Binding Nature and Assignment
(a) Binding Nature. This Agreement will be binding on the Parties
and their respective successors and permitted assigns.
(b) Assignment. Neither Party may, or will have the power to,
assign this Agreement (it being understood that the merger of
Insurdata and HealthAxis, and the subsequent merger of
HealthAxis and Provident American Corporation shall not be
deemed to be an assignment hereof) without the prior written
consent of the other, except in the following circumstances:
(1) Either Party may assign its rights and obligations
under this Agreement, without the approval of the
other Party, to an Affiliate which expressly assumes
such Party's obligations and responsibilities
hereunder and is not a direct competitor of the other
Party; provided that the assigning Party shall remain
fully liable for and shall not be relieved from the
full performance of all obligations under this
Agreement. Any Party assigning its rights or
obligations to an Affiliate in accordance with this
Agreement shall, within three (3) business days after
such assignment, provide written notice thereof to
the other Party together with a copy of the
assignment document.
(2) Either Party may assign its rights and obligations
under this Agreement to an Entity acquiring, directly
or indirectly, Control of such Party, an Entity into
which such Party is merged or an Entity acquiring all
or substantially all of such Party's assets, without
the approval of the other Party. The acquirer or
surviving Entity shall agree in writing to be bound
by the terms and conditions of this Agreement. Any
Entity receiving the Services shall show evidence
that it can satisfy its obligations under the
Agreement.
(c) Impermissible Assignment. Any attempted assignment that does
not comply with the terms of this Section shall be null and
void.
21.2 Entire Agreement; Amendment
This Agreement, including any Schedules and Exhibits referred to herein
and attached hereto, each of which is incorporated herein for all
purposes, constitutes the entire agreement between the Parties with
respect to the subject matter hereof. There are no agreements,
representations, warranties, promises, covenants, commitments or
undertakings other than those expressly set forth herein. This
Agreement supercedes all prior agreements, representations, warranties,
promises, covenants, commitments or undertakings, whether written or
oral, with respect to the subject matter contained in this Agreement,
including, without limitation, the Existing Agreements. No amendment,
modification, change, waiver or discharge hereof shall be valid unless
in writing and signed by an authorized representative of the Party
against which such amendment, modification, change, waiver or discharge
is sought to be enforced. Notwithstanding anything herein to the
contrary, this Agreement shall not be deemed or construed as
superceding or replacing the Excluded Agreements or any existing
agreements between UICI and/or any Eligible Recipient and HealthAxis.
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21.3 Compliance with Laws and Regulations
(a) Insurdata shall perform its obligations in a manner that
complies with applicable Laws, including without limitation
identifying and procuring required permits, certificates,
approvals and inspections. If a charge of non-compliance by
Insurdata with any such Laws occurs, Insurdata shall promptly
notify UICI of such charges in writing.
(b) UICI shall perform its obligations under this Agreement in a
manner that complies with applicable Laws, including without
limitation identifying and procuring required permits,
certificates, approvals and inspections. If a charge of
non-compliance by UICI with any such Laws occurs, UICI shall
promptly notify Insurdata of such charges in writing.
21.4 Notices
All notices, requests, demands and determinations under this Agreement
(other than routine operational communications) shall be in writing and
shall be deemed duly given (i) when delivered by hand, (ii) one (1) day
after being given to an express courier with a reliable system for
tracking delivery, (iii) when sent by confirmed facsimile with a copy
sent by another means specified in this Section 21.4, or (iv) six (6)
days after the day of mailing, when mailed by registered or certified
mail, return receipt requested, postage prepaid and addressed as
follows:
In the case of UICI:
UICI
4001 McEwen
Suite 200
Dallas, Texas 75244
Attention: Chief Information Officer
With a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Attention: Michael E. Bieniek, Esq.
Telephone No.: (312) 701-7377
Telecopy No.: (312) 706-8107
In the case of Insurdata:
Insurdata Incorporated (HealthAxis.com, Inc. following closing
of the Merger Agreement)
5215 N. O'Connor Blvd.
Suite 800
Irving, Texas 75039
Attention: Vice President of Client Services
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With a copy to:
Insurdata Incorporated (HealthAxis.com, Inc. following closing
of the Merger Agreement)
5215 N. O'Connor Blvd.
Suite 800
Irving, Texas 75039
Attention: Vice President of Finance & Admin.
A Party may from time to time change its address or designee for
notification purposes by giving the other Party prior written notice of
the new address or designee and the date upon which the change will
become effective.
21.5 Counterparts
This Agreement may be executed in several counterparts, all of which
taken together shall constitute one single agreement between the
Parties hereto.
21.6 Headings
The article and section headings and the table of contents used herein
are for reference and convenience only and shall not be considered in
the interpretation of this Agreement.
21.7 Relationship of Parties
Insurdata, in furnishing services to UICI hereunder, is acting as an
independent contractor, and Insurdata has the sole obligation to
supervise, manage, contract, direct, procure, perform or cause to be
performed all work to be performed by Insurdata under this Agreement.
Insurdata is not an agent of UICI and has no right, power or authority,
expressly or impliedly, to represent or bind UICI as to any matters,
except as expressly authorized in this Agreement.
21.8 Severability
In the event that any provision of this Agreement conflicts with the
law under which this Agreement is to be construed or if any such
provision is held invalid or unenforceable by a court with jurisdiction
over the Parties, such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law. The remaining provisions of this
Agreement and the application of the challenged provision to persons or
circumstances other than those as to which it is invalid or
unenforceable shall not be affected thereby, and each such provision
shall be valid and enforceable to the full extent permitted by law.
21.9 Consents and Approval
Except where expressly provided as being in the sole discretion of a
Party, where agreement, approval, acceptance, consent, confirmation,
notice or similar action by either Party is required under this
Agreement, such action shall not be unreasonably delayed or withheld.
For purposes of this Section 21.9, unreasonably delayed shall not be
longer than seven (7) days unless otherwise agreed by the Parties. An
approval or consent given by a Party under this Agreement shall not
relieve the other Party from responsibility for complying with the
requirements of this Agreement, nor shall it be construed as a waiver
of any rights under this Agreement, except as and to the extent
otherwise expressly provided in such approval or consent.
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21.10 Waiver of Default; Cumulative Remedies
(a) A delay or omission by either Party hereto to exercise any
right or power under this Agreement shall not be construed to
be a waiver thereof. A waiver by either of the Parties hereto
of any of the covenants to be performed by the other or any
breach thereof shall not be construed to be a waiver of any
succeeding breach thereof or of any other covenant herein
contained. All waivers must be in writing and signed by the
Party waiving its rights.
(b) Except as otherwise expressly provided herein, all remedies
provided for in this Agreement shall be cumulative and in
addition to and not in lieu of any other remedies available to
either Party at law, in equity or otherwise.
21.11 Survival
Any provision of this Agreement which contemplates performance or
observance subsequent to any termination or expiration of this
Agreement shall survive any termination or expiration of this Agreement
and continue in full force and effect. Additionally, all provisions of
this Agreement will survive the expiration or termination of this
Agreement to the fullest extent necessary to give the Parties the full
benefit of the bargain expressed herein.
21.12 Publicity
Neither Party shall use the other Party's name or mark or refer to the
other Party directly or indirectly in any media release, public
announcement or public disclosure relating to this Agreement, without
the prior written consent of the other Party to each such use or
reference. Notwithstanding the foregoing, Insurdata may list UICI as a
customer and describe in general terms the Services in proposals and
other marketing materials, and may also list this Agreement and its
relationship with UICI in any public filings when required by law or in
accordance with customary or recommended practice.
21.13 Service Marks
Each Party agrees that it shall not, without the other Party's prior
written consent, use any of the names, service marks or trademarks of
each other or the Eligible Recipients or Affiliates in any of its
advertising or marketing materials.
21.14 Export
The Parties acknowledge that certain Software and technical data to be
provided hereunder and certain transactions hereunder may be subject to
export controls under the laws and regulations of the United States and
other countries. No Party shall export or re-export any such items or
any direct product thereof or undertake any transaction in violation of
any such laws or regulations. To the extent within Insurdata's control,
Insurdata shall be responsible for, and shall coordinate and oversee,
compliance with such export laws in respect of such items exported or
imported hereunder.
21.15 Third Party Beneficiaries
Except as expressly provided herein, this Agreement is entered into
solely between, and may be enforced only by, UICI and Insurdata. This
Agreement shall not be deemed to create any rights or causes of action
in or on behalf of any third parties, including without limitation
employees, vendors and customers of a Party, or to create any
obligations of a Party to any such third parties.
21.16 Order of Precedence
In the event of a conflict, this Agreement shall take precedence over
the Schedules attached hereto, and the Schedules shall take precedence
over any attached Exhibits.
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21.17 Further Assurances
Each Party covenants and agrees that, subsequent to the execution and
delivery of this Agreement and without any additional consideration,
each Party shall execute and deliver any further legal instruments and
perform any acts that are or may become necessary to effectuate the
purposes of this Agreement.
21.18 Liens
Insurdata will not file, or by its sole action or inaction
intentionally permit, any mechanics' or materialmen's liens to be filed
on or against property or realty of UICI or any Eligible Recipient. In
the event that any such liens arise as a result of Insurdata's action
or inaction, Insurdata will take commercially reasonable efforts to
remove such liens at its sole cost and expense.
21.19 Covenant of Good Faith
Each Party agrees that, in its respective dealings with the other Party
under or in connection with this Agreement, it shall act in good faith.
21.20 Acknowledgment
The Parties each acknowledge that the terms and conditions of this
Agreement have been the subject of active and complete negotiations,
and that such terms and conditions should not be construed in favor of
or against any Party by reason of the extent to which any Party or its
professional advisors participated in the preparation of this
Agreement.
21.21 Related Entities
UICI shall cause Eligible Recipients and any divested entities to whom
Insurdata provides or has provided the Services to perform and comply
with provisions of confidentiality, representations and warranties,
limitation of liabilities and other responsibilities of UICI that may
be applicable.
21.22 Remarketing
UICI may not remarket all or any portion of the Services provided under
the Agreement, or make all or any portion of the Services available to
any Entity other than the Eligible Recipients, without the prior
written consent of Insurdata.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representatives as of the Effective
Date.
UICI INSURDATA INCORPORATED
By: ________________________ By: ________________________
Title: Title:
Date: Date:
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<PAGE>
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "Agreement"), dated as of January 7,
2000, is by and among HealthAxis.com Inc., a Pennsylvania corporation (the
"Company"), and the Persons (as defined herein) set forth on the signature pages
hereto.
RECITALS
WHEREAS, Provident American Corporation, a Pennsylvania corporation
("Provident"), the Company, UICI, a Delaware corporation ("UICI"), and Insurdata
Incorporated, a Texas corporation ("Insurdata"), have entered into an Agreement
and Plan of Merger, dated as of December 6, 1999 (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement, it is contemplated that
certain of the Holders (as hereinafter defined) will acquire shares of the
Company's common stock, no par value (the "Common Stock");
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Merger Agreement that the parties hereto enter into this
Agreement; and
WHEREAS, the Holders and the Company wish to record their understanding
regarding certain matters relating to the management of the Company and certain
other matters.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
SECTION 1. Definitions. In addition to the capitalized terms defined
elsewhere in this Agreement, the following capitalized terms shall have the
following meanings when used in this Agreement:
"Affiliate" with respect to a Person, means a Person that
controls, is controlled by or is under common control with such Person. For
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
"Beneficial Owner" means any Person deemed to be a "beneficial
owner" of a security as defined in Rule 13d-3 under the Exchange Act. The terms
"Beneficially Own" and "Beneficial Ownership" have correlative meanings.
<PAGE>
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission (or
any other governmental body succeeding to the functions of the Securities and
Exchange Commission).
"Common Stock" has the meaning ascribed to such term in the
Recitals.
"Electing Holder" has the meaning ascribed to such term in
Section 5(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Family Group" means, with respect to any Holder who is an
individual, such Holder's spouse and descendants (whether natural or adopted)
and any trust for the benefit of the Holder and/or such Holder's spouse and/or
descendants or any Person controlled (directly or indirectly) by any such
Person.
"Fully Diluted Basis" with respect to any security, means all
of the issued shares of such security and includes, without limitation, (i) all
of the outstanding shares of such security (except shares then held by or for
the account of the issuer or its wholly owned subsidiaries), (ii) any and all
shares of such security issuable upon conversion of securities convertible into
such security, whether or not convertible at such time, and (iii) any and all
shares of such security issuable upon exercise of other exercisable rights to
acquire such security, including options, warrants and participation rights,
whether or not exercisable at such time.
"Holder" means any holder of Securities who is a party to this
Agreement (or becomes a party hereto pursuant to Section 4(d) or Section 5(d))
or who is a successor or assign or subsequent holder as contemplated by Section
18.
"New Securities" means (i) any capital stock of the Company or
any other securities or other equity obligations of the Company issued after the
date hereof, including without limitation any capital or stock appreciation,
phantom stock or profit participation rights, whether now or hereafter
authorized or not, (ii) any rights, options or warrants issued after the date
hereof to purchase any such capital stock, securities, obligations or rights, or
to purchase any securities of any type whatsoever that are, or may become,
convertible into any such capital stock, securities, obligations or rights and
(iii) any securities of any type whatsoever issued after the date hereof that
are, or may become, convertible into any such capital stock, securities,
obligations or rights; provided, however, that "New Securities" shall not
include (A) securities to be offered to the public pursuant to a registration
statement declared effective by the Commission, (B) options issued to employees,
officers, directors and consultants of the Company and the issuance of capital
stock upon exercise of such options in accordance with their terms, (C) the
issuance of capital stock in connection with the exercise of an option or a
warrant outstanding on the date hereof and issued by either the Company or
Insurdata and the issuance of warrants (and the issuance of capital stock upon
exercise thereof) issued to strategic partners of the company in the ordinary
course of business, and (D) the issuance of Common Stock in connection with an
acquisition, whether by merger, purchase of assets, or by other reorganization,
or upon conversion or exercise of options, warrants or convertible securities
issued in connection with an acquisition.
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"Nominee" has the meaning ascribed to such term in Section
2(a).
"Offer" has the meaning ascribed to such term in Section 5(a).
"Offered Securities" has the meaning ascribed to such term in
Section 5(a).
"Offeror" has the meaning ascribed to such term in Section
5(a).
"Participating Holder" has the meaning ascribed to such term
in Section 4(a).
"Permitted Transferee" has the meaning ascribed to such term
in Section 4(d).
"Person" means any individual, corporation, proprietorship,
firm, partnership, limited partnership, limited liability company, trust,
association or other entity.
"Sale Notice" has the meaning ascribed to such term in Section
4(b).
"Securities" means Common Stock or shares of capital stock or
other securities, directly or indirectly, exercisable for or convertible into
Common Stock; provided, however, that Securities shall not include any
securities which have been sold (i) pursuant to a registration statement
declared effective by the Commission or (ii) pursuant to Rule 144 promulgated by
the Commission under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" has the meaning ascribed to such term in
Section 4(a).
"Transfer" means a sale, transfer, disposition, gift or other
conveyance of securities.
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SECTION 2. Board of Directors; Management of the Company.
(a) The Holders and the Company agree that the Board shall consist of
up to nine (9) members, and the Holders shall have the right to nominate a
number of persons (each such person, a "Nominee") to serve as directors on the
Board as follows: (i) UICI shall be entitled to nominate three (3) Nominees
(Ronald L. Jensen, Gregory T. Mutz and Dennis B. Maloney being the initial UICI
Nominees); (ii) Provident shall be entitled to nominate three (3) Nominees
(Michael Ashker, Alvin H. Clemens and Edward W. LaBaron, Jr. being the initial
Provident Nominees); and (iii) UICI and Provident shall together agree mutually
to nominate three (3) Nominees (with Henry Hager being one of the initial
Nominees agreed to by UICI and Provident). Each Holder agrees to take all
actions necessary so as to cause the Nominees to be elected to the Board
including, without limitation, the voting of its shares of stock of the Company
and causing the vote of all shares of stock of the Company Beneficially Owned by
such Holder, the execution of written consents, the calling of special meetings,
the removal of directors, the filling of vacancies on the Board, and the waiving
of notice and the attending of meetings.
(b) No party shall nominate any person to the Board if: (i) such
individual is employed by, or has investment interests, directly or indirectly,
in, any material competitor of the Company (unless such investment constitutes
less than two percent (2%) of the equity ownership in a public company and at
the time of purchase has a fair market value of less than $50,000); (ii) such
individual is not reasonably experienced in business, financial, insurance or
e-commerce industry matters; (iii) such individual has been convicted of, or has
pled nolo contendere to, a felony; (iv) the election of such individual would
violate any law; or (v) any event required to be disclosed pursuant to Item
401(f) of Regulation S-K of the Exchange Act has occurred with respect to such
individual.
(c) A director elected pursuant to this Section 2 shall serve until (i)
his or her term expires as provided in the Company's articles of incorporation
and bylaws, (ii) he or she is removed pursuant to Section (2)(d) or (iii) the
party who nominated such director no longer has the right to nominate a
director, in which case the party so elected shall immediately resign and the
size of the Board shall be decreased accordingly.
(d) In the event of the death, disability, removal or resignation of
any director designated pursuant to this Section 2, the Holder that designated
such director shall notify the Company and the other Holders, within 30 days
after such death, disability, removal or resignation, of a successor director
who shall either (i) be appointed by the remaining directors then in office to
serve the unexpired term of such director or (ii) be elected by the shareholders
pursuant to the Company's bylaws. Each Holder agrees to take all actions
necessary to elect any such successor Nominee in the same manner as discussed in
Section 2(a).
(e) The Board may create committees to assist in governing the Company,
however, no executive committee may be formed without the consent of all of the
members of the Board that are Nominees of either UICI or of Provident.
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<PAGE>
(f) So long as this Section 2 remains in effect, the Board nomination
rights of a Holder hereunder shall supersede any rights a Holder may have to
nominate Board members under any other agreement. After such time as a Holder is
no longer entitled under this Section 2 to nominate persons to serve on the
Board, the rights of such Holder under any such agreement to nominate Board
members shall be reinstated.
(g) The rights of any Holder under this Section 2 shall continue in
effect unless and until such Holder Beneficially Owns less than 20% of the
Common Stock of the Company on a Fully Diluted Basis.
SECTION 3. Preemptive Rights.
(a) Until the Common Stock is registered under Section 12(b) or 12(g)
of the Exchange Act, subject to the rights of AOL set forth in the securities
purchase agreement dated November 13, 1998, each of UICI and Provident shall
have the right to purchase its proportionate number, or any greater or lesser
number, of any New Securities which the Company may, from time to time, propose
to sell and issue. For purposes of this Section 3, each such Holder's
"proportionate number" means the product obtained by multiplying the number of
New Securities proposed to be sold and issued by a fraction, the numerator of
which is the number of shares of Common Stock then Beneficially Owned by such
Holder on a Fully Diluted Basis and the denominator of which is the total number
of shares of Common Stock then outstanding on a Fully Diluted Basis. This
provision shall not permit any double counting as a result of preemptive rights
contained in any other agreement or security issued by the Company.
(b) If the Company proposes to sell and issue New Securities, the
Company shall promptly give each Holder written notice of its intention, which
notice shall describe the New Securities and the price and material terms upon
which the Company proposes to issue the same, and set forth the proportionate
number of New Securities which such Holder is entitled to purchase and the
purchase price therefor. Each Holder shall have twenty days from the date of
receipt of any notice to agree to purchase its proportionate number or any
greater or lesser number of such New Securities, for the price and upon the
terms specified in the notice by giving written notice to the Company within
twenty days after the receipt of notice from the Company and stating therein the
quantity of New Securities sought to be purchased.
(c) Subject to the rights of AOL set forth in the securities purchase
agreement dated November 13, 1998, if the Holders desire to purchase a greater
number of New Securities than set forth in the Company's notice, the Company
shall have the option to increase the total number of New Securities offered or
to allocate the New Securities among those Holders exercising their purchase
rights in proportion to the number of shares of Common Stock Beneficially Owned
by each such Holder on a Fully Diluted Basis; provided, however, that no Holder
shall be allocated more shares of New Securities than it indicated a desire to
purchase with any excess being allocated among the remaining Holders in
proportion to the number of shares of Common Stock Beneficially Owned by each on
a Fully Diluted Basis and with this process to be repeated until all the New
Securities have been allocated to the Holders exercising their purchase rights.
5
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(d) If the Holders fail to exercise their purchase rights within the
twenty day period with respect to all of the New Securities, the Company shall
have twenty days thereafter to sell the New Securities as to which the Holders'
rights were not exercised, at a price that is not less than the price specified
in the Company's notice. If the Company has not sold such New Securities within
such twenty day period, then the Company shall not thereafter issue or sell any
New Securities without again complying with this Section 3.
SECTION 4. Co-Sale Rights.
(a) Subject to the rights of America Online, Inc. ("AOL") set forth in
that certain Stockholders' Agreement, dated as of November 13, 1998, among the
Company, AOL, Provident, Provident Indemnity Life Insurance Company, Health Plan
Services, Inc. Michael Ashker and Alvin H. Clemens (the "AOL Agreement"), until
the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act,
in connection with a proposed Transfer of Common Stock Beneficially Owned by a
Holder (a "Selling Holder") to a Person other than a Permitted Transferee, each
Holder shall have the right, but not the obligation, to Transfer to the proposed
purchaser(s) that number of shares of Common Stock (or if such number is not an
integral number, the next integral number which is greater than such number)
which shall be the product of (i) the total number of shares of Common Stock
then Beneficially Owned by such Holder on a Fully Diluted Basis and (ii) a
fraction, the numerator of which shall be the number of shares of Common Stock
to be Transferred by the Selling Holder and the denominator of which shall be
the total number of shares of Common Stock then Beneficially Owned by all of the
Holders on a Fully Diluted Basis. The Common Stock to be Transferred hereunder
shall be Transferred on the same terms and conditions as those applicable to the
Selling Holder specified in the Sale Notice, including the time of Transfer,
form of consideration and per-share price. The failure of any Holder to exercise
its rights under this Section 4 shall result in such Holder's exclusion from the
Transfer specified in the Sale Notice. If any Holder desires to exercise its
rights under this Section 4 (each, a "Participating Holder"), such Participating
Holder shall give written notice thereof to the Selling Holder no later than ten
days after the date of the Sale Notice. Each Participating Holder shall promptly
take all steps described in the Sale Notice to effectuate the Transfer of the
Common Stock covered thereby, including without limitation the furnishing of
information customarily provided in connection with such a Transfer and the
execution of such sales and other transfer documents with such representations,
warranties, agreements, covenants and indemnities as may be required. This
provision shall not permit a Holder to duplicate any rights such holder has as a
result of co-sale rights contained in any other agreement or security issued by
the Company.
(b) If a Selling Holder proposes to Transfer any Common Stock in any
transaction or series of related transactions pursuant to Section 4(a), then at
least twenty days prior to the proposed Transfer, such Selling Holder shall
notify the Company and each Holder of such proposed transactions, which notice
(the "Sale Notice") shall specify the principle terms of such transaction,
including the number of shares of Common Stock proposed to be Transferred, the
price per share at which such Selling Holder intends to Transfer such Common
Stock and the identity of the proposed purchaser(s) as well as the other
material terms and conditions of the proposed Transfer.
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(c) If the sum of (i) the Common Stock to be Transferred by the Selling
Holder and (ii) the Common Stock sought to be Transferred by Participating
Holders pursuant to Section 4(a) exceeds the number of shares of Common Stock
that the purchaser(s) described in the Sale Notice are willing to buy, the
Selling Holder shall adjust the number of shares of Common Stock to be
Transferred by each of the Selling Holder and each Participating Holder to
ensure that the ratio of the number of shares of Common Stock proposed to be
Transferred by each such Person to the number of shares of Common Stock
Beneficially Owned by such Person on a Fully Diluted Basis shall be equal for
each such Person, as near as may be possible.
(d) The restrictions set forth in this Section 4 shall not apply with
respect to any (i) (A) Transfer by a Holder to its heirs, devisees, Family Group
or Affiliates, (B) Transfer by UICI to any person to whom it has issued an
option to acquire any shares of Common Stock or (C) pledge of securities to a
lender to secure bona fide indebtedness or the transfer of such securities to
such lender pursuant to the terms of such pledge (each a "Permitted
Transferee"); provided, however, that each Permitted Transferee must agree to be
bound by all of the terms of this Agreement as a Holder, and (ii) Transfer by
Provident of securities issued by the Company upon conversion of securities
issued in the Provident Offering and the transferee of such securities shall not
be bound by the terms of this Agreement. For purposes of this Agreement, MEGA
Life Insurance Company and Chesapeake Life Insurance Company are Permitted
Transferees.
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SECTION 5. Right of First Offer.
(a) Subject to the rights of AOL set forth in the AOL Agreement, until
the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act,
if any Holder (an "Offeror") desires to Transfer from time to time all or any
portion of the shares of Common Stock Beneficially Owned by such Holders on a
Fully Diluted Basis (all or such portion hereinafter referred to as the "Offered
Securities"), the Offeror shall, at least twenty days prior to the proposed
Transfer, furnish to the Company and each Holder a written notice setting forth
an offer to sell the Offered Securities for a specific cash dollar amount (the
"Offer"). The other Holder(s) (each, an "Electing Holder") shall have the right
to elect, by providing written notice to the Offeror of its election to purchase
within ten days after the date of the Offer, to purchase that number of Offered
Securities (or if such number is not an integral number, the next integral
number which is greater than such number) which shall be the product of (i) the
total number of shares of Common Stock then Beneficially Owned by such Electing
Holder on a Fully Diluted Basis and (ii) a fraction, the numerator of which
shall be the number of Offered Securities to be Transferred by the Offeror and
the denominator of which shall be the total number of shares of Common Stock
then Beneficially Owned by all of the Holders on a Fully Diluted Basis. This
provision shall not permit a Holder to duplicate any rights such holder has as a
result of a right of first offer contained in any other agreement or security
issued by the Company.
(b) If the Electing Holder(s) shall timely exercise their first right
to purchase all or any portion of the Offered Securities, the Offeror shall sell
all or such portion of the Offered Securities to such Electing Holder(s) who
shall pay the cash price specified in the Offer to the Offeror, and the parties
shall otherwise consummate such transaction no later than twenty days after the
Company's receipt of the Offer.
(c) If the Electing Holder(s) fails to exercise its/their first right
to purchase, or exercises its/their right only with respect to a portion of the
Offered Securities, the Offeror shall have ten days thereafter to sell any
remaining Offered Securities at the price and on terms no less favorable to the
Offeror than those specified in the Offer. If the Offeror does not consummate
the sale of such Offered Securities within such ten day period, then the Offeror
shall not thereafter Transfer any of its Securities without again complying with
this Section 5.
(d) The restrictions set forth in this Section 5 shall not apply with
respect to any (i) Transfer of Securities by a Holder to a Permitted Transferee;
provided, however, that each Permitted Transferee must agree to be bound by all
of the terms of this Agreement as a Holder, and (ii) Transfer by Provident of
securities issued by the Company upon conversion of securities issued in the
Provident Offering and the transferee of such securities shall not be bound by
the terms of this Agreement.
(e) The restrictions set forth in this Section 5 shall be subject to
the prior exercise by AOL of its rights set forth in the AOL Agreement.
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SECTION 6. Legend. The Company shall stamp or imprint each certificate
or other instrument representing Securities held by a Holder bound by any terms
of this Agreement, throughout the term of this Agreement, with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
PROVISIONS, INCLUDING, AMONG OTHERS, RESTRICTIONS ON VOTING AND
TRANSFER, SET FORTH IN A SHAREHOLDERS' AGREEMENT DATED AS OF JANUARY 7,
2000, AS IT MAY BE AMENDED, MODIFIED, SUPPLEMENTED OR RESTATED FROM
TIME TO TIME, A COPY OF WHICH IS AVAILABLE AT THE PRINCIPAL OFFICE OF
THE COMPANY."
SECTION 7. Approval Rights. In addition to all other rights set forth
in this Agreement, UICI shall, in its sole and absolute discretion, have the
right to approve, alter or prevent (i) the calculation of the amount and the
amortization period of all goodwill and other intangibles recorded by the
Company in connection with the Merger, provided such calculation shall be
consistent with generally accepted accounting principles and approved by the
Company's independent auditors and (ii) the entering into by the Company of a
merger, consolidation, reorganization or similar transaction with Provident or
any Provident subsidiary, provided that the rights in this clause (ii) shall
expire at such time as UICI shall Beneficially Own less than 20% of the Common
Stock of the Company on a Fully Diluted Basis.
SECTION 8. Transfer Option.
(a) Transfer Option. Subject to the terms and conditions in this
Section 8, the Company shall have the right (the "Transfer Option") to cause
UICI to transfer to one or more third parties unaffiliated with UICI, up to
1,255,000 shares (representing 6% of UICI's Beneficial Ownership of Common Stock
on a Fully Diluted Basis) of Common Stock owned by UICI at a per share price
equal to the greater of (i) $21.00 and (ii) the Closing Price (as hereinafter
defined). The Transfer Option shall be exercisable one time only with respect to
all such shares of Common Stock and may be exercised at any time following the
completion of the Follow-On Equity Offering and ending on the first to occur of
the following events: (i) on the third anniversary of the date hereof; (ii) the
ninetieth (90th) day following the date on which the Closing Price (as
hereinafter defined) of shares of Common Stock shall have been at least $27.00
per for a period of sixty (60) consecutive trading days; and (iii) the ninetieth
(90th) day following the first date on which UICI Beneficially Owns less than
40% of the shares of Common Stock on a Fully Diluted Basis. For purposes hereof,
"Closing Price" shall mean the reported last sale price of a share of Common
Stock, on a given day, regular way, or, in case no such sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
each case on the New York Stock Exchange Composite Tape, or, if the security is
not listed or admitted to trading on such exchange, on the American Stock
Exchange Composite Tape, or, if the security is not listed or admitted to
trading on such exchange, the principal national securities exchange on which
the security is listed or admitted to trading, or, if the security is not listed
or admitted to trading on any national securities exchange, the closing sales
price, or, if there is no closing sales price, the average of the closing bid
and asked prices, in the over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System, or, if not so
reported, as reported by the National Quotation Bureau, Incorporated, or any
successor thereof, or, if not so reported, the average of the closing bid and
asked prices as furnished by any member of the National Association of
Securities Dealers, Inc. selected from time to time by the Company for that
purpose or, if no such prices are furnished, the fair market value of the Common
Stock as determined in good faith by the board of directors of the Company,
which determination shall be based upon recent issuances or current offerings
pursuant to bona fide private offerings of the same class of security by the
Company; provided, however, that any determination of the "Closing Price" of any
security hereunder shall be based on the assumption that such security is freely
transferable without registration under the Securities Act.
9
<PAGE>
(b) Exercise of Transfer Option. The Company may exercise its rights
under Section 8(a) by giving UICI written notice of its exercise of the Transfer
Option prior to the expiration of the Transfer Option. Such notice shall state
that the Company intends to cause UICI to transfer such shares to one or more
third parties unaffiliated with UICI. Upon the closing of the transactions
contemplated by an exercise of the Transfer Option, UICI shall surrender its
shares of Common Stock, duly endorsed for transfer, to the Company or the
Persons purchasing such securities, in exchange for the net proceeds from such
transfer. The closing of the transactions upon the exercise of the Transfer
Option shall occur within ninety (90) days of the exercise thereof by the
Company.
(c) Transfer to Third Parties. Any exercise by the Company of its
Transfer Option in which the Company elects to cause UICI to transfer shares of
Common Stock to one or more Persons unaffiliated with UICI shall be governed by
the following terms:
(i) Private Placement. Prior to the time that the shares of
Common Stock are registered pursuant to Section 12(b) or 12(g) of the
Exchange Act, the Company will, upon any exercise of the Transfer
Option in accordance with this Section 8(c), as expeditiously as
possible:
(A) prepare a private placement memorandum, together
with such amendments and supplements thereto as may be
necessary to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all shares of
Common Stock covered by such private placement memorandum;
(B) use its reasonable efforts to perfect exemptions
for the shares of Common Stock covered by such private
placement memorandum under all applicable rules and
regulations of the Commission and such other securities or
blue sky laws of such jurisdictions as UICI shall request, and
do any and all other acts and things reasonably requested by
UICI to permit UICI to consummate the sale or other
disposition in such jurisdictions of such shares, except that
the Company shall not for any such purpose be required to
qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or to file therein
any general consent to service of process;
10
<PAGE>
(C) enter into and perform its obligations under a
private placement agency agreement, in usual and customary
form, with a placement agent acceptable to UICI, including,
without limitation, to obtain an opinion of counsel to the
Company in the usual and customary form for such private
placement; and
(D) notify UICI, at any time when a private placement
memorandum is required to be delivered under the applicable
law, of the happening of any event of which it has knowledge
as a result of which the private placement memorandum, as then
in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(ii) Public Offering. After the time that the shares of Common
Stock are registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, the Company, upon the exercise of the Transfer Option in
accordance with this Section 8(c), may elect to cause the transfer of
shares in a private placement, in which case the provisions of Section
8(b)(i) shall apply, or may elect to cause the shares to be sold in a
public offering, in which case the Company shall as expeditiously as
possible:
(A) prepare and file with the Commission a
registration statement with respect to such shares of Common
Stock and use its reasonable efforts to cause such
registration statement to become effective and remain
effective for as long as shall be necessary to complete the
distribution of the shares of Common Stock so registered;
(B) prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities covered by
such registration statement;
(C) furnish to UICI and any underwriters such numbers
of copies of a summary prospectus or other prospectus,
including a preliminary prospectus or any amendment or
supplement to any prospectus, in conformity with the
requirements of the Securities Act, and such other documents,
as UICI or the underwriters may reasonably request in order to
facilitate the public sale or other disposition of the
securities covered by such registration statement;
11
<PAGE>
(C) use its reasonable efforts to register and
qualify the Common Stock covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions as UICI or the underwriters shall request, and
do any and all other acts and things reasonably requested by
UICI or the underwriters to assist them to consummate the
public sale or other disposition in such jurisdictions of the
Common Stock covered by the registration statement, except
that the Company shall not for any such purpose be required to
qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or to file therein
any general consent to service of process;
(D) otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the
period of at least twelve months, beginning with the first
fiscal quarter beginning after the effective date of the
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act;
(E) use its reasonable efforts to list such Common
Stock on any securities exchange or interdealer quotation
system on which any shares of the Company are then listed, if
the listing or quotation of such securities is then permitted
under the rules of such exchange or interdealer quotation
system;
(F) enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the
managing underwriter or underwriters selected by UICI of such
underwritten offering, including, without limitation, to
obtain an opinion of counsel to the Company and a "comfort
letter" from the independent public accountants to the Company
in the usual and customary form for such underwritten
offering;
(G) notify the Investors, at any time when a
prospectus relating thereto covered by such registration
statement is required to be delivered under the Securities
Act, of the happening of any event of which it has knowledge
as a result of which the prospectus included in such
registration statement, as then in effect, contains an untrue
statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances then existing;
(H) make the Company's executive officers available
to participate in "road show" presentations for such periods
and in such places as the underwriters may reasonably request
and make the Company's executive officers available at the
Company's principal executive offices to discuss the affairs
of the Company at times that may be mutually and reasonably
agreed upon; and
12
<PAGE>
(I) upon the request of UICI, take any and all other
actions which may be reasonably necessary to complete the
registration and thereafter to complete the distribution of
the Common Stock so registered.
(iii) Expenses. All expenses of any offering pursuant to a
Transfer Option under this Section 8 shall be borne by the Company,
except that UICI shall bear the cost of a reasonable customary
underwriting commission or discount, brokerage commission or placement
fee in the event of a successful offering.
SECTION 9. Termination. If any Holder shall be in default of its
obligations hereunder and any such default shall continue for a period of 30
days after any other Holder or the Company has given written notice thereof to
such defaulting Holder, then the rights (but not the obligations) under this
Agreement of such defaulting party shall terminate. This Agreement shall
terminate upon the written agreement of each of the parties hereto.
SECTION 10. Beneficial Ownership. Each of the Holders Beneficially Own
that number of shares of Common Stock on a Fully Diluted Basis set forth
opposite their respective names on Exhibit A hereto. Each Holder shall promptly
hereafter notify the Company of any changes to its respective Beneficial
Ownership of Common Stock. The Company shall be entitled to rely upon the
amounts set forth in Exhibit A or such notices without incurring any liability
to any other party hereunder. Each Holder shall respond promptly to any request
made by the Company to provide or confirm such Holder's Beneficial Ownership of
Common Stock.
SECTION 11. Acknowledgments. Each of the parties hereto acknowledges
that the restrictions, prohibitions and other provisions hereof are reasonable,
fair and equitable in scope, terms and duration, are necessary to protect the
legitimate business interests of each of the other parties hereto, and are a
material inducement to such party to enter into the transactions contemplated by
this Agreement.
SECTION 12. Expenses. Except as otherwise specifically provided in this
Agreement, each party hereto shall bear its own costs and expenses with respect
to the transactions contemplated hereby.
SECTION 13. Remedies. Each of the parties to this Agreement shall be
entitled to enforce its rights under this Agreement specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in its favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of competent jurisdiction for specific performance or
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement. The remedies provided in this Agreement shall be
cumulative and shall not preclude the assertion or exercise of any other rights
or remedies available by law, in equity or otherwise.
13
<PAGE>
SECTION 14. Notices. Any notice, request, instruction or other document
to be given hereunder shall be in writing and shall be deemed to have been given
(a) when received if given in person or by courier or a courier service, (b) on
the date of transmission if sent by facsimile or other wire transmission or (c)
three business days after being deposited in the U.S. mail, certified or
registered mail, postage prepaid, addressed as specified with respect to such
Holder in Exhibit A or to such other individual or address as a party hereto may
designate for itself by notice given as herein provided.
SECTION 15. Amendments and Waivers. The provisions of this Agreement
may be amended or waived only upon the written agreement of each of the parties
hereto; provided, however, that amendments to Sections 2, 3, 7 and 8 may be made
upon the written agreement of both UICI and Provident and no other party. Any
waiver, permit, consent or approval of any kind or character of any provision or
condition of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in writing. Any amendment or waiver
effected in accordance with this Section 15 shall be binding upon the Company
and each Holder of Securities.
SECTION 16. Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto,
and each transferee of all or any portion of the Securities held by the parties
hereto, whether so expressed or not. Each Permitted Transferee of all or any
portion of the Securities held by any of the parties hereto shall execute and
deliver a written assumption agreement to the Company agreeing to be bound by
the provisions of this Agreement, in form and substance reasonably acceptable to
the Company. Notwithstanding the foregoing, except as specifically provided in
this Agreement, no assignment of any rights or obligations under this Agreement
may be made by any party.
SECTION 17. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, and the remainder of this
Agreement shall remain operative and in full force and effect. The parties shall
negotiate in good faith a replacement clause or provision as consistent with the
ineffective clause or provision as is practicable under law.
SECTION 18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 19. Entire Understanding. This Agreement (together with the
letter agreement of even date herewith between Provident, HealthAxis and UICI)
sets forth the entire agreement and understanding of the parties hereto with
respect to the matters set forth herein and supersedes any and all prior
agreements, arrangements and understandings among the parties.
14
<PAGE>
SECTION 20. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute one
instrument. Transmission by facsimile of an executed counterpart of this
Agreement shall constitute due and sufficient delivery of this Agreement.
SECTION 21. Interpretation. The headings preceding the Sections
included in this Agreement and the headings to Exhibits and Schedules attached
to this Agreement are for convenience only and shall not be deemed part of this
Agreement or be given any effect in interpreting this Agreement. The use of the
masculine, feminine or neuter gender herein shall not limit any provision of
this Agreement. The use of the terms "including" or "include" shall in all cases
herein mean "including, without limitation" or "include, without limitation",
respectively. Underscored references to Sections or Schedules shall refer to
those portions of this Agreement.
SECTION 22. No Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties hereto and no provision of this Agreement shall be
deemed to confer upon other third parties any remedy, claim, liability,
reimbursement, cause of action or other right.
SECTION 23. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 24. No Presumption Against Drafter. Each of the parties hereto
has jointly participated in the negotiation and drafting of this Agreement. In
the event of any ambiguity or a question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by each of the parties
hereto and no presumptions or burdens of proof shall arise favoring any party by
virtue of the authorship of any of the provisions of this Agreement.
[Remainder of page intentionally left blank]
15
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
HEALTHAXIS.COM, INC.
By: ___________________________________
Name:_________________________________
Title:__________________________________
UICI
By: ___________________________________
Name:_________________________________
Title:__________________________________
PROVIDENT AMERICAN CORPORATION
By: ___________________________________
Name:_________________________________
Title:__________________________________
--------------------------------------
Michael Ashker
<PAGE>
EXHIBIT A
Common Stock on a Fully Diluted Basis
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Number of Shares
of Common Stock Percentage of Shares of
Name and Beneficially Owned Common Stock Outstanding
Notice Address on a Fully Diluted Basis on a Fully Diluted Basis
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
UICI 19,967,729 39.9%
4001 McEwen Boulevard
Suite 200
Dallas, Texas 75244
Attention: Gregory T. Mutz
Telephone: (972)392-6700
Facsimile: (972)392-6717
With a copy to:
Mayer, Brown & Platt
190 S. LaSalle Street
Chicago, Illinois 60603
Attn: Edward J. Schneidman
Telephone: (312)701-7348
Facsimile: (312) 701-7711
N/A N/A
- -----------------------------------------------------------------------------------------------------------------------
HealthAxis.com, Inc.
2500 DeKalb Pike
East Norriton, PA 19401
Attention: Michael Ashker, President
and CEO
Telephone: (610) 279-3500
Facsimile: (610) 279-4498
With a copy to:
Blank Rome Comisky & McCauley
LLP
One Logan Square
Philadelphia, PA 19103
Attention: Barry H. Genkin
Telephone: (215) 569-5514
Facsimile: (215) 569-5555
- -----------------------------------------------------------------------------------------------------------------------
Provident American Corporation 15,801,644 31.5%
2500 DeKalb Pike
Norristown, Pennsylvania 19404
Attention: Alvin H. Clemens
Telephone: (610) 279-2500
Facsimile: (610) 279-0414
With a copy to:
Butera Beausang Cohen & Brennan
630 Freedom Business Center
King of Prussia, Pennsylvania 19406
Attention: Michael F. Beausang
Telephone: (610) 265-0800
Facsimile: (610) 265-7205
- -----------------------------------------------------------------------------------------------------------------------
Michael Ashker 1,191,000 2.4%
c/o HealthAxis.com, Inc.
2500 DeKalb Pike
East Norrinton, PA 19404
Telephone: (610) 279-3561
Facsimile: (610) 279-4498
With a copy to:
Michael G. Hankinson
c/o HealthAxis.com, Inc.
2500 DeKalb Pike
East Norrinton, PA 19404
Telephone: (610) 279-3561
Facsimile: (610) 279-4498
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
[GRAPHIC OMITTED] HealthAxis.com
FOR IMMEDIATE RELEASE
- ---------------------
Contact:
Investor Contact: Media Contact:
Deidre Holt Doug Russell/Michele Meagher
HealthAxis.com Schwartz Communications, Inc.
610-275-3800 781-684-0770
[email protected] [email protected]
[email protected]
FOR IMMEDIATE RELEASE
HealthAxis.com Completes Insurdata Merger
EAST NORRITON, PA and DALLAS, TX, January 10, 2000 - HealthAxis.com, a
subsidiary of Provident American Corporation (NASDAQ: PAMC) and the leading
online insurance marketer, and Insurdata Incorporated, a subsidiary of UICI
(NYSE: UCI) and one of the largest providers of healthcare administration
software solutions, today announced the completion of the merger of the two
companies which became effective January 7, 2000.
The combined company is among the largest players in Web-enabled health
insurance, with proforma consolidated 1999 estimated revenues of $42 million.
The new HealthAxis.com serves both consumers and payors with an integrated
Web-based platform.
Michael Ashker, chief executive officer of HealthAxis.com said, "With this
transaction complete, we can focus our full energies on completing the
previously announced merger with HealthAxis.com's parent company, Provident
American Corporation. We can also begin implementing the new HealthAxis.com's
ambitious business plan. Our combined technology expertise and marketing muscle
makes us a formidable competitor in the fast-moving online health insurance
space."
About HealthAxis.com
- --------------------
HealthAxis.com, Inc. is the leading provider of Internet solutions for
healthcare insurance marketing, sales, and plan administration. HealthAxis.com
is the only e-healthcare company servicing both the consumer and
business-to-business marketplaces with health plan solutions. The Company's
consumer Web site, www.healthaxis.com, is a fully transactional, online health
insurance agency targeting the individual and small group markets. The Company's
proprietary workflow and business application software, built around an
application service provider model, enables healthcare payors -- carriers, third
party administrators, and large, self-funded groups -- to more efficiently
capture, process, and share health plan data over the Internet. HealthAxis.com
is headquartered in suburban Philadelphia, with significant operations in
Dallas, as well as offices in eight other locations both domestic and abroad.
The company employs over 350 IT professionals.
<PAGE>
HealthAxis.com Completes Insurdata Merger
January 10, 2000
Page 2 of 2
Safe Harbor Statement under the Private Securities Litigation Reform Act of
1995: Certain statements made which are not historical facts may be considered
forward-looking statements, including, without limitation, statements as to
trends, management's beliefs, expectations and opinions, which are based upon a
number of assumptions concerning future conditions that ultimately may prove to
be inaccurate. Such forward-looking statements are subject to risks and
uncertainties and may be affected by various factors which may cause actual
results to differ materially from those in the forward-looking statements. For
further information which could cause actual results to differ from the
Company's expectations, as well as other factors which could affect the
Company's and Provident American's financial statements, please refer to
Provident American's reports filed with the Securities and Exchange Commission.
