Confidential
SECOND AMENDMENT TO AMENDED AND RESTATED INTERACTIVE MARKETING AGREEMENT
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This Second Amendment to Amended and Restated Interactive Marketing
Agreement (this "Amendment"), dated as of April 1, 1999, is between (i) America
Online, Inc. ("AOL"), a Delaware corporation, with offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and (ii) Provident Health Services, Inc., a Pennsylvania
corporation ("PHI") and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a Pennsylvania corporation ("HAI"
and collectively with PHI, "Marketing Partner" or "MP"), each having offices at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. AOL and MP may be
referred to individually as a "Party" and collectively as "Parties."
RECITALS
AOL and PHI entered into an Amended and Restated Interactive Marketing
Agreement dated as of February 1, 1998 (as amended by the First Amendment to
Amended and Restated Interactive Marketing Agreement, the "Agreement"). HAI is
an affiliate of PHI and PHI assigned its rights under the Agreement to HAI.
Capitalized terms used in this Amendment without other definition are defined as
in the Agreement. In light of both parties' desire to amend certain terms of the
Agreement, the parties hereby agree as follows:
TERMS
1. The Agreement is amended to provide that references in the Agreement to
"this Agreement" or "the Agreement" (including indirect references such
as "hereunder," "hereby," "herein" and "hereof") shall be deemed to be
references to the Agreement as amended by this Amendment.
2. Section 1.1 of the Agreement is amended to add the following sentence
to the end thereof:
"AOL shall use reasonable efforts to provide MP with placements within
the CompuServe branded service and/or Netscape Netcenter Internet site,
subject to availability, existing contractual relationships and AOL's
business, programming and policy considerations."
3. The following is added to the end of Section 3 of the Agreement:
"Notwithstanding the foregoing or anything to the contrary
in this Agreement:
"(d) MP acknowledges and agrees that the Personal Finance Web
Center is controlled by Intuit and is not subject to AOL's
exclusivity obligations for ▇▇▇.▇▇▇."
4. The following sentence is added to the end of Section 1.2:
"For purposes of clarification, the Adjusted Coverage
Rate shall never be greater than [o o o]."
5. Subparagraph (e) of Section 4.1.1 of the Agreement is deleted in its entirety
and the following is inserted in lieu thereof:
"(e) [o o o] on or before the earlier to occur
of (i) [o o o] after MP consummates a financing
and (ii) [o o o].
6. Section 4.1.2 of the Agreement is deleted in its entirety and the following
is inserted in lieu thereof:
"4.1.2 Renewal Term. If MP exercises its right to renew this
Agreement pursuant to Section 5.2.1, MP will pay AOL a
guaranteed amount of [o o o]. Such payment shall be made in
installments with installments in the following amounts due on
or before each of the
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following dates: (a) [o o o] on or before [o o o]; (b) [o o o]
on or before [o o o]; (c) [o o o] on or before [o o o]; (d) [o
o o] on or before [o o o] and (e) [o o o] on or before [o o
o]. Notwithstanding anything to the contrary in this
Agreement, if any installment payable by MP pursuant to this
Section 4.1.2 is not paid by the due date for such
installment, then, in addition to all other available
remedies, all further payments under this Section 4.1.2 shall
become immediately due and payable."
7. The threshold set forth in Section 4.2.1(a)(i) is changed from [o o o]
to [o o o]; the threshold set forth in Section 4.2.1(a)(ii) is changed
from [o o o] to [o o o]; the threshold set forth in Section
4.2.1(a)(iii) is changed from [o o o] to [o o o]; the threshold set
forth in Section 4.2.1(a)(iv) is changed from [o o o] to [o o o]; and
the dollar threshold set forth in Section 4.2.1(a)(v) is changed from
[o o o] to [o o o]. Notwithstanding anything to the contrary in the
Agreement, the Parties acknowledge and agree that MP's payment
obligations under Section 4.2.1(b), Section 4.2.2 and Section 4.2.3
shall arise only upon satisfaction by MP of the revenue thresholds set
forth in Section 4.2.1(a).
8. Section 5.2.1 of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"5.2.1 By MP. Provided MP has fulfilled the requirements set
forth on Schedule Y and MP continues to be in
compliance with such requirements upon the expiration
of the Initial Term, MP shall have the one-time right
to renew this Agreement for an additional period of
two (2) years and four (4) months (i.e., expiring May
31, 2002) (the "Renewal Term" and together with the
Initial Term, the "Term") by giving AOL written
notice of such election by not later than January 17,
2000. AOL shall have the right to conduct a quality
audit prior to the expiration of the Initial Term to
ascertain whether MP has fulfilled and continues to
be in compliance with the requirements set forth on
Schedule Y."
9. A new Section 5.2.3. is added to the Agreement as follows:
"5.2.3. Wind-Down Period. In the event MP does not elect to
renew this Agreement as provided in Section 5.2.1,
the Parties agree that there will be a four (4) month
"wind-down" period beginning on February 1, 2000 and
ending on May 31, 2000 (the "Wind-Down Period").
During the Wind-Down Period, MP shall continue to
perform all of its obligations under this Agreement
except that (a) there shall be no further fixed
payment obligations and (b) MP shall continue to pay
Administrative Fees and other revenue sharing amounts
in accordance with Sections 4.2 and 4.3. During the
Wind-Down Period, AOL shall have no further
exclusivity obligations and AOL's sole obligation
shall be to work together with MP to manage an
orderly transition of the Affiliated MP Site from the
AOL Network and both Parties agree that AOL Users
will continue to have access to the Affiliated MP
Site during the Wind-Down Period. For purposes of
AOL's first extension right under Section 5.2.2, AOL
is required to notify MP of its exercise thereof on
or before March 31, 2000 and, if exercised, such
extension term would commence upon the expiration of
the Wind-Down Period."
10. Any Keyword Search Terms to be directed to the Affiliated MP Site shall
be (i) subject to availability for use by MP and (ii) limited to the
combination of the Keyword(TM)search modifier combined with a
registered trademark of MP. AOL reserves the right to revoke at any
time MP's use of any Keyword Search Terms which do not incorporate
registered trademarks of MP. MP acknowledges that its utilization of a
Keyword Search Term will not create in it, nor will it represent it
has, any right, title or interest in or to such Keyword Search Term,
other than the right, title and interest MP holds in MP's registered
trademark independent of the Keyword Search Term. Without limiting the
generality of the foregoing, MP will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword
Search Term; or (b) use the Keyword
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Search Term, except for the purposes expressly required or permitted
under this Agreement. This Section shall survive the completion,
expiration, termination or cancellation of the Agreement. "Keyword
Search Term" shall mean the Keyword(TM)online search terms made
available on the AOL Service for use by AOL Members, combining AOL's
Keyword(TM)online search modifier with a term or phrase specifically
related to MP (and determined in accordance with the terms of this
Agreement).
11. Subject to the prior consent of MP, which consent will not be
unreasonably withheld, AOL will be entitled to establish navigational
icons, links and pointers connecting the Affiliated MP Site (or
portions thereof) with other content areas on or outside of the AOL
Network. Additionally, in cases where an AOL User performs a search for
MP through any search or navigational tool or mechanism that is
accessible or available through the AOL Network (e.g., Promotions,
Keyword Search Terms, or any other similar promotions or navigational
tools), AOL shall have the right to direct such AOL User to the
Affiliated MP Site, or any other MP Interactive Site determined by AOL
in its reasonable discretion.
12. MP shall cooperate with AOL in connection with planning, scheduling and
delivering the Promotions and Impressions under the Agreement,
including without limitation by responding promptly to AOL's requests
for information or feedback on the promotion plan and by causing MP's
advertising agency to adhere to the terms of the Agreement and this
paragraph. In general, AOL will use reasonable efforts to request MP's
feedback on aspects of implementation of the carriage plan; provided,
however, that all Impressions delivered by AOL in accordance with the
Agreement shall count toward the Impressions commitment under the
Agreement regardless of whether MP provides such feedback. In the event
MP requests that Impressions be delivered in areas of the AOL Network
not contemplated under the carriage plan and AOL elects, at its sole
discretion, to accommodate such request, such Impressions shall be
counted against the Impressions commitment under the Agreement at a
value commensurate with the value of Impressions that appear in such
areas of the AOL Network (so one Impression delivered in the requested
area may count as more than one Impression against the Impressions
commitment).
13. In consideration of and as a condition to AOL entering into this
Amendment, MP hereby irrevocably waives all Claims against AOL and/or
its affiliates, successors, assigns, directors, officers, agents and
employees (collectively, the "AOL Parties") arising out of, or
otherwise related to, the Agreement and forever releases the AOL
Parties therefrom and further agrees not to make or assert any Claims
against any AOL Party in connection with the Agreement. "Claims" shall
mean any and all claims, suits, demands actions and rights, known or
unknown, which arise or accrue on or before the date of this Amendment.
14. This Amendment does not, and shall not be construed to, modify any term
or condition of the Agreement other than those specific terms and
conditions expressly referenced in this Amendment. Except as herein
provided, the Agreement shall remain unchanged and in full force and
effect. In the event of any inconsistency or discrepancy between the
Agreement and this Amendment, the terms and conditions set forth in
this Amendment shall control. This Amendment may be executed in
multiple counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same document.
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the
date first set forth above.
AMERICA ONLINE, INC. PROVIDENT HEALTH SERVICES, INC.
By: _______________________________ By: ___________________________
Print Name: ______________________ Print Name: __________________
Title: ____________________________ Title: ________________________
▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By: ___________________________
Print Name: __________________
Title: ________________________
Issuer hereby guarantees payment and performance of all MP's obligations under
the Agreement. In addition, by execution hereof, Issuer evidences its agreement
to the terms of Section 6 of the Agreement.
PROVIDENT AMERICAN CORPORATION
By: _______________________________
Print Name: ______________________
Title: ____________________________
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