Confidential
FIRST AMENDMENT TO AMENDED AND RESTATED INTERACTIVE MARKETING AGREEMENT
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This First Amendment to Amended and Restated Interactive Marketing
Agreement (this "Amendment"), dated as of November 13, 1998, 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
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AOL and PHI entered into an Amended and Restated Interactive Marketing
Agreement dated as of February 1, 1998 (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
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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. PHI and HAI shall be jointly and severally liable for all obligations,
liability and indemnities of MP under the Agreement as amended by this
Amendment.
3. The definition of "Launch" is deleted in its entirety from Exhibit B of
the Agreement. The parenthetical "(other than Medical Policies)" is
deleted from the definition of "Co-Sponsor." The following definitions
are added to Exhibit B of the Agreement:
(a) Soft Launch Date. The later to occur of (i) November 1, 1998 and
(ii) the date upon which MP has fulfilled the "Soft Launch
Requirements" set forth on Schedule X to this Agreement.
(b) Official Launch Date. January 31, 1999.
(c) Official Launch Requirements. The "Official Launch Requirements"
set forth on Schedule X to this Agreement.
(d) Coverage Rate. For any calendar month, the percentage of AOL's
membership base residing in states in which MP offers Qualifying
Individual Medical Policies, which Coverage Rate shall be
calculated for a particular calendar month as of the first
working day of the last complete calendar week falling within the
preceding calendar month.
(e) Qualifying Individual Medical Policies. Individual Medical
Policies that are issued by a company or companies with .... of
.... or better and are Competitive with all other health
insurance policies available to individuals in the relevant
state.
(f) Best Rating. The rating designated by A.M. Best Company, Inc.
(g) Competitive. (i) in good standing with the regulatory agency of
the applicable state or states and not appearing on any "watch
list" or similar designation, (ii) meeting or
exceeding all material quality averages and/or applicable
standards of the health insurance industry and (iii) as
determined by a mutually agreed upon third party reviewer who is
a recognized authority in the health insurance industry, (a)
reasonably competitive in all material respects, including
without limitation each of the following: quality, price, scope
and selection, customer service and fulfillment, speed and
accuracy of claims processing (whether claims processing is
performed by MP or the policy issuer), financial strength of
issuer, and quality, scope and selection of health care providers
and (b) evaluated as a whole, among the market leaders in the
relevant product category.
4. The first paragraph of Section 1.2 is deleted in its entirety and the
following is inserted in lieu thereof:
"1.2. Impressions. AOL will provide up to.... Impressions in the
aggregate, during the period (the "Soft Launch Period") from the
Soft Launch Date until MP has fulfilled the Official Launch
Requirements. For each calendar month of the Initial Term from
and after MP has fulfilled the Official Launch Requirements, AOL
will provide up to the number of Impressions equal to....
multiplied by the Adjusted Coverage Rate; provided, however, that
the total aggregate Impressions AOL is committed to provide for
the Initial Term shall not exceed.... . For each calendar month
of the Renewal Term (if applicable), AOL will provide up to the
number of Impressions equal to.... multiplied by the Adjusted
Coverage Rate; provided, however, that the total aggregate
Impressions AOL is committed to provide during the Renewal Term
shall not exceed.... during any year or.... in total. The
"Adjusted Coverage Rate" shall mean the Coverage Rate.... by....;
provided, however, that if AOL is prohibited by law (as
reasonably advised by legal counsel) from delivering Impressions
to states in which the Affiliated MP Site does not offer a
Qualified Individual Medical Policy, then the Adjusted Coverage
Rate shall be the same as the Coverage Rate.
Any shortfall in delivered Impressions at the end of a month (or
the Soft Launch Period) below AOL's Impressions commitment for
such month (or the Soft Launch Period) will not be deemed a
breach of this Agreement by AOL; such shortfall will be added to
the Impressions commitment for the subsequent month. In the event
AOL has delivered fewer Impressions than AOL's total Impressions
commitment as of the end of the Term (a "Final Shortfall"), AOL
will provide MP, as its sole remedy, with either (i) continued
carriage of advertising placements on the AOL Network in
accordance with Section 1.1 for up to six (6) months or (ii)
credits for the purchase of advertising on the AOL Network which
have a total value equal to the value of the Final Shortfall
...., which credits may be redeemed for advertising, valued based
on the .... rate under .... (the total .... the number of
Impressions AOL is obligated to deliver .... , subject to
availability and AOL's then-current advertising policies, over a
.... period. In the event AOL provides an excess of Impressions
in any month (or the Soft Launch Period) above AOL's Impressions
commitment for such month (or the Soft Launch Period), such
excess may be applied against the Impressions commitment for any
subsequent month or months. Any or all Impressions provided by
AOL may, at AOL's option, be .... by restricting such
Impressions, in whole or in part, to .... in which MP offers
Qualifying Individual Medical Policies. AOL shall make reasonable
efforts to .... its Impressions commitments on a reasonably
....on a .... taking into account .... due to .... of the AOL
Service or specific areas in which MP receives Placements and
.... due to .... of Impressions."
5. Section 1.6 of the Agreement is deleted in its entirety.
6. Section 1.7 of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"1.7. .... Rentals. ....
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7. The first sentence of Section 2.1.1 of the Agreement is deleted in its
entirety and the following is inserted in lieu thereof:
"MP will make available through the Affiliated MP Site the
comprehensive offering of Products described on Exhibit D and
other related Content, subject to the terms of this Agreement
(including this Section 2.1.1)."
8. Section 2.2 of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"2.2. Launch; Production Work. MP will create and customize the
Affiliated MP Site (which shall, at AOL's option, be co-branded)
in accordance with this Agreement and AOL's specifications with
continuous navigational ability for AOL Members to return to an
agreed-upon point on the AOL Service from the Affiliated MP Site.
MP shall use its best efforts to fulfill the Soft Launch
Requirements set forth on Schedule X to this Agreement by no
later than November 3, 1998. MP shall use its best efforts to
fulfill the Official Launch Requirements by no later than January
1, 1999 but shall, in any event, fulfill the Official Launch
Requirements by no later than March 31, 1999. In the event MP's
fulfillment of the Official Launch Requirements is delayed beyond
March 31, 1999, then, in addition to any other remedies available
to AOL, (a) AOL may terminate this Agreement (if, after ten (10)
days following written notice to MP specifying the particular
requirement(s) that have not been fulfilled, MP has failed to
fulfill such requirement(s)), and (b) (i) AOL's Impression
commitments and the Site Revenue thresholds set forth in Section
1.2, (ii) the Transaction Revenue thresholds set forth in Section
4.2.1 and (iii) the Approved Application thresholds (as set forth
in the Renewal Term Performance Warrant Agreement, as defined in
Section 6.3), each shall be proportionately reduced. The Parties
shall work together to meet a deliverables schedule with respect
to the creation of the Affiliated MP Site, including dates for
the delivery of (i) preliminary specifications, (ii) first round
of specifications and (iii) final specifications and plans for
beta testing of the Affiliated MP Site, which deliverables
schedule shall be mutually agreed upon with the objective of
meeting the dates set forth in this Section. Each deliverable
shall be submitted to AOL for AOL's review and comment. MP shall
incorporate AOL's comments, which shall be commercially
reasonable, technologically feasible and provided in a timely
fashion, into such deliverables. AOL agrees not to unreasonably
withhold its approval of any such deliverables, provided they
comply with AOL's standard technical and performance requirements
and the terms of this Agreement. MP shall make available
sufficient staffing for the maintenance of the Affiliated MP Site
at all times. Except as agreed to in writing by the Parties
pursuant to the "Production Work" section of the Standard Online
Terms & Conditions attached hereto as Exhibit F, MP will be
responsible for all production work associated with the
Affiliated MP Site, including all related costs and expenses,
including, without limitation, all costs and expenses associated
with developing or modifying any forms, screens or pages within
the AOL Network associated with the Affiliated MP Site (including
modifications required for regulatory reasons or requested by AOL
to address AOL Member complaints, compliance issues or ease of
use and navigation) and/or at AOL's election, develop a health
insurance area (which shall be owned and controlled by AOL)
within the AOL Network linked to from the aggregated "Insurance
Center."
9. Section 2.8 of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"2.8 Operating Standards. MP will ensure that the Affiliated MP Site
complies at all times with the standards set forth in Exhibit E.
In addition, (i) from and after the Soft Launch Date, MP shall
comply at all times with the "Soft Launch Requirements" set forth
in Schedule X to this Agreement and (ii) from and after the end
of the Soft Launch Period, MP shall comply at all times with the
Official Launch Requirements. Further, during the Renewal Term
(if applicable), MP shall comply at all times with paragraphs A.
and B. of
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Schedule Y to this Agreement (the "Renewal Term Additional
Standards"). To the extent standards are not established in
Exhibit E, the Official Launch Requirements or the Renewal Term
Additional Standards (if applicable) with respect to any aspect
or portion of the Affiliated MP Site (or the Products or other
Content contained therein), MP will provide such aspect or
portion at a level of accuracy, quality, completeness, and
timeliness that meets or exceeds prevailing standards in the
health insurance industry. In the event MP materially breaches
its obligations in paragraphs 2,3,8 or 9 of Exhibit E, its
obligations set forth in the Official Launch Requirements, or its
obligations set forth in the Renewal Term Additional Standards
(if applicable), AOL will have the right (in addition to any
other remedies available to AOL hereunder) to decrease the
Placements it provides to MP hereunder (and to decrease or cease
any other contractual obligation hereunder) until such time as MP
corrects its non-compliance (and in such event, (a) AOL will be
relieved of the proportionate amount of any Impressions
commitments made to MP by AOL hereunder corresponding to such
decrease in Placements and (b) the revenue threshold(s) set forth
in Sections 1.2 and 4.2 and the Approved Application thresholds
(as set forth in the Renewal Term Performance Warrant Agreement)
will each be adjusted proportionately to correspond to such
decrease in Placements and other obligations during the
non-compliance period)."
10. The following is added to the end of Section 3 of the Agreement:
"Notwithstanding the foregoing or anything to the contrary in
this Agreement:
(a) In addition to any other remedies available to AOL hereunder,
AOL's exclusivity obligations to MP shall terminate if MP fails
to (x) use its best efforts to fulfill the Official Launch
Requirements by January 1, 1999 and to comply with the Official
Launch Requirements at all times thereafter, (y) fulfill the
Official Launch Requirements on or before March 31, 1999 and
comply in all material respects with the Official Launch
Requirements at all times thereafter, or (z) comply with the
Renewal Term Additional Standards at all times during the Renewal
Term (if applicable).
(b) AOL's exclusivity obligations to MP shall terminate with respect
to any type or category of the Exclusive Products as to which, on
December 1, 1999 (or at any time thereafter following thirty (30)
days written notice and opportunity to cure), MP does not provide
an offering on the Affiliated MP Site, which offer (x) covers
.... in which at least .... of AOL's membership base .... and (y)
has a .... of .... or better and is Competitive with all other
similar products available in such state.
(c) Upon the expiration or termination of this Agreement or upon the
termination of AOL's exclusivity obligations hereunder, MP shall,
and shall cause its affiliates to, release and discharge in
writing any third party insurance carriers, underwriters or other
providers from any obligation precluding such third party from
entering into a relationship, agreement or arrangement with AOL
or its Affiliates; provided, however, that such release and
discharge may be conditioned upon termination of MP's (or its
affiliates') agency with such third party. To the extent
necessary to effectuate the intent of this provision, any such
third party shall be a third party beneficiary of this provision
of this Agreement."
11. Section 4.1.1 of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"4.1.1 Initial Term. MP will pay AOL a guaranteed amount of Ten
Million Dollars ($10,000,000) during the Initial Term, ....)
of which shall be a fee (the "Holding Fee") in consideration
for AOL commencing the exclusivity provisions of this
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Agreement prior to the Official Launch Date and the remaining
.... of which shall be attributable to the Impressions
commitment and the placement and other services described
herein. Such guaranteed amount shall be paid as follows:
(a) .... within five (5) business days after the execution of
this Agreement;
(b) .... on or before .... ;
(c) .... on or before .... together with interest at the prime
rate from ....; and
(d) .... on or before ...., together with interest at the
prime rate from ....; and
(e) .... on ...., .... and ....; provided however, that MP
shall immediately pay AOL all amounts due and owing under
this paragraph (e) upon the consummation of an earlier
financing by MP.
Except as expressly provided in Section 5.7, the guaranteed
amount shall be non-refundable."
12. 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 Thirty-Three Million Five Hundred
Thousand Dollars ($33,500,000) on or before the first day of
the Renewal Term.
13. Section 4.2.5 of the Agreement is amended by adding the following to
the end of the Section:
"In the event the .... set forth in .... become .... for MP,
then, upon MP's request at any time after MP has generated at
least ....for .... on the Affiliated MP Site, AOL will agree
to discuss with MP in good faith possible .... that would be
mutually beneficial for the Parties."
14. Section 5.1 of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"5.1 Term. Unless earlier terminated as set forth herein, the
initial term of this Agreement will commence on the Effective
Date and expire one (1) year from the Official Launch Date
(the "Initial Term")."
15. 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 (the "Renewal Term" and
together with the Initial Term, the "Term") by giving AOL
written notice of such election by not later than one hundred
twenty (120) days prior to the expiration of the Initial Term.
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."
16. Section 6 of this Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
"6.1 Grant of Warrants.
6.1.1 Initial Grant. Provident American Corporation ("Issuer")
hereby grants to AOL a
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warrant (the "Warrant") representing the right for a .... year period
to purchase up to three hundred thousand (300,000) shares of Issuer's
common stock, $0.10 par value per share (the "Common Stock"), at a
price per share equal to Four and 48/100 Dollars ($4.48).
6.1.2 Additional Grant During Initial Term. On November 13, 1998,
Issuer shall grant to AOL a warrant (the "Additional Warrant")
representing the right for a .... year period to purchase up
to three hundred thousand (300,000) shares of Common Stock at
a price per share equal to Three and 38/100 Dollars $3.38).
6.1.3 HA Warrants During Initial Term. On November 13, 1998, HA
shall grant to AOL a warrant (the "HA Warrant") representing
the right for a .... year period to purchase up to three
hundred thousand (300,000) shares of HA's common stock (the
"HA Common Stock"), at a price per share equal to One and
77/100 Dollars ($1.77).
6.1.4 Additional Grant During Renewal Term. If MP exercises its
right to renew this Agreement pursuant to Section 5.2.1,
Issuer shall grant to AOL a warrant (the "Renewal Term
Performance Warrant") representing the right for a .... year
period to purchase up to three hundred thousand (300,000)
shares of Common Stock at a price per share equal to Five and
15/100 Dollars ($5.15). The Renewal Term Performance Warrant
shall vest quarterly in accordance with the terms of the
Renewal Term Performance Warrant Agreement (as defined below).
6.2 Terms and Conditions. The rights, preferences and privileges of the
Warrant and the Common Stock issuable upon exercise of the Warrant
shall be as set forth in the Common Stock Warrant Agreement (defined
below). The rights, preferences and privileges of the Additional
Warrant and the Common Stock issuable upon exercise of the Additional
Warrant shall be as set forth in the Additional Warrant Agreement
(defined below). The rights, preferences and privileges of the HA
Warrant and the HA Common Stock issuable upon exercise of the HA
Warrant shall be as set forth in the HA Warrant Agreement (defined
below).The rights, preferences and privileges of the Renewal Term
Performance Warrant and the Common Stock issuable upon exercise of the
Renewal Term Performance Warrant shall be as set forth in the Renewal
Term Performance Warrant Agreement (defined below).
6.3 Approval; Final Agreement. Upon execution of this Agreement, Issuer
shall issue the Warrant and will enter into an Amended and Restated
Stock Subscription Warrant on the form attached hereto as Exhibit H-1
(the "Common Stock Warrant Agreement"), which will document the grant
of the Warrant hereby made to AOL. On November 13, 1998, Issuer shall
issue the Additional Warrant and the HA Warrant granted hereunder and
will enter into (i) a Stock Subscription Warrant on the form attached
hereto as Exhibit H-2 (the "HA Warrant Agreement"), which will document
the grant of the HA Warrant hereby made to AOL, and (ii) a Stock
Subscription Warrant on the form attached hereto as Exhibit H-3 (the
"Additional Warrant Agreement"), which will document the grant of the
Additional Warrant hereby made to AOL. Upon exercise by MP of its right
to renew this Agreement pursuant to Section 5.2.1, Issuer shall issue
the Renewal Term Performance Warrant and shall enter into a Stock
Subscription Renewal Performance Warrant on the form attached hereto as
Exhibit H-4 (the "Renewal Term Performance Warrant Agreement"). Issuer
hereby acknowledges and agrees that, in the event of a breach of the
provisions of this Section 6, AOL would be irreparably harmed and it
would be impossible for AOL to determine the amount of damages that
would result from such breach, and that accordingly, any remedy at law
for any such breach or threatened breach thereof, would be inadequate.
Accordingly, Issuer agrees that the provisions of this Section 6 may be
specifically enforced through equitable and injunctive relief in
addition to any other
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applicable rights or remedies AOL may have, from any court of competent
jurisdiction. Issuer hereby waives the claim or defense that a remedy
at law would be adequate in respect to this provision, and agrees to
have this Section 6 specifically enforced against Issuer without the
necessity of posting bond or other security, and consents to the entry
of injunctive relief enjoining or restraining any breach or threatened
breach of this Section 6. In addition, without limiting any other
remedy available hereunder, in the event Issuer has not issued the
Renewal Term Performance Warrant and executed and delivered the Renewal
Term Performance Warrant Agreement by not later than ninety (90) days
prior to the commencement of the Renewal Term (if MP has exercised its
right to renew this Agreement pursuant to Section 5.2.1), then AOL may,
at its option, terminate this Agreement upon the expiration of the
Initial Term.
17. Section 7 of the Agreement is deleted in its entirety.
18. Section B of Exhibit A to the Agreement is deleted in its entirety.
Paragraph 1. of Exhibit E is deleted in its entirety. Exhibit H-1 and
Exhibit H-2 of the Agreement are deleted in their entirety and the
Agreement is amended to add as Exhibits ▇-▇, ▇-▇, ▇-▇ and H-4 thereto
the Exhibits ▇-▇, ▇-▇, ▇-▇ and H-4 attached to this Amendment. The
Agreement is amended to add as Schedule X and Schedule Y thereto the
Schedule X and Schedule Y attached to this Amendment.
19. In consideration of and as a condition to AOL entering into this
Amendment, MP hereby irrevocably waives all Claims against AOL and its
affiliates arising out of, or otherwise related to, the Agreement and
forever releases AOL and its affiliates therefrom and further agrees
not to make or assert any Claims against AOL or its affiliates in
connection with the Agreement. "Claims" shall mean any and all claims,
demands and/or rights which arise or accrue on or before the date of
this Amendment.
20. 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.
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:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------- ----------------------
Title: Senior Vice President Title: President
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▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President & CEO
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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: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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SCHEDULE X
Launch Requirements
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Soft Launch Requirements:
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1. Roll-out on a state-by-state basis of Qualified Individual Medical Policies
in .... covering at least .... of AOL's membership base.
2. The Affiliated MP Site shall be a mirrored site for access solely by AOL
Users, or if the Affiliated MP Site is not a mirrored site, MP must provide
adequate tracking of activity by AOL Users and transactions by AOL
Purchasers and continuous navigation back to AOL, in accordance with the
Agreement and reasonably acceptable to AOL. MP shall have provided test
results demonstrating to AOL's satisfaction that traffic entering the
Affiliated MP Site from the AOL Service, ▇▇▇.▇▇▇ and other areas of the AOL
Network is effectively distinguished from traffic entering the Affiliated
MP Site from the World Wide Web at large.
3. MP shall have completed systems testing (including without limitation,
system architecture, security, redundancy, and Y2K compliance) and all bugs
have been corrected, and such testing and bug correction shall have been
verified by AOL to its reasonable satisfaction.
4. Affiliated MP Site shall support AOL 3.0 browsers and up and conform to
AOL's standard web site operating standards and requirements of the
Agreement.
5. MP shall have a third party security audit of the Affiliated MP Site
completed (including without limitation, business processes, system
architecture, and physical plant) and complied with all recommendations of
such audit.
6. AOL shall have reasonably approved MP's privacy policy; such privacy policy
shall be posted on the Affiliated MP Site and must include a link for AOL
Members back to the AOL Privacy Policy. MP's privacy policy shall comply
with all applicable laws and regulations, including without limitation the
National Association of Insurance Commissioners Information and Privacy
Protection Model Act.
7. MP shall be in compliance with the AOL Merchant Certification Guidelines, a
copy of which shall be provided by AOL.
8. MP's call center/customer service support plan shall have been mutually
agreed upon by the Parties.
9. The Affiliated MP Site be in compliance with the Agreement and with all
applicable laws and regulations.
Official Launch Requirements:
-----------------------------
1. MP shall have fulfilled and be in compliance with all of the Soft Launch
Requirements set forth above.
2. MP shall have deal performance reporting infrastructure complete;
sample/test reports must be provided for AOL review and be approved by AOL,
which approval shall not be unreasonably withheld.
3. MP shall have an employee on staff fully-trained in AOL's proprietary
Rainman language who will be responsible for generating periodic updates to
any Rainman areas associated with the Affiliated MP Site.
4. AOL shall have approved MP's detailed launch marketing plan, which approval
shall not be unreasonably withheld.
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5. AOL shall have approved MP's detailed launch public relations and offline
promotion plan, which approval shall not be unreasonably withheld.
6. The Affiliated MP Site (including the Content contained therein) shall, in
AOL's good faith judgment, meet or exceed all material quality averages
and/or applicable standards of the health insurance industry and be
reasonably competitive in all material respects with competing sites
offering products similar to the Exclusive Products at the time, including
without limitation, with respect to each of the following: quality, design,
functionality, and customer service and fulfillment. In addition, all
Products on the Affiliated MP Site shall be Competitive.
7. If, at any time (including after the Official Launch Date), AOL determines,
in its reasonable discretion, that (i) the Affiliated MP Site does not
provide adequate tracking of activity by AOL users and/or transactions by
AOL Purchasers (for any reason, including limitations in AOL's ability to
timely update data necessary to provide such tracking) and/or continuous
navigation back to AOL, (ii) AOL is not satisfied with the Affiliated MP
Site's accuracy, speed, ease of use or other characteristics, or (iii) the
Affiliated MP Site otherwise does not comply with the terms of this
Agreement, then MP shall create a mirrored version of the Affiliated MP
Site for purposes of this Agreement within sixty (60) days after written
notice from AOL.
8. The Affiliated MP Site shall employ 40-bit or 128-bit encryption, at AOL's
option with thirty (30) days notice, for all aspects and functions of the
Affiliated MP Site. MP shall ensure that the encryption on the MP
Affiliated Site employs the highest quality and most up-to-date technology
at all times.
9. The MP Affiliated Site shall obtain and display a TRUSTe license indicating
compliance with the standards and guidelines of the TRUSTe association.
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SCHEDULE Y
MP Renewal Requirements
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A. Product Offering; Geographic Scope and Quality:
MP shall have a Qualified Individual Medical Policy offering issued by a company
or companies with a .... of .... or better in .... covering at least .... of
AOL's membership base. MP shall use commercially reasonable best efforts to have
(i) a small group Medical Policy offering issued by a company or companies with
a .... of .... or better in .... covering at least .... of AOL's membership base
and (ii) a product offering in each remaining category of the Exclusive Products
issued by a company or companies with a .... of .... or better in .... covering
at least .... of AOL's membership base. MP shall, in any event, have (a) a small
group Medical Policy offering in [states] ... covering at least ... of AOL's
membership base, which offering is Competitive with other similar products
available in the applicable state and (b) a product offering in each remaining
category of the Exclusive Products in .... covering at least .... of AOL's
membership base, which offering is Competitive with other similar products
available in the applicable state.
B. Affiliated MP Site:
In addition to the requirements set forth in item #6 of the Official Launch
Requirements, the Affiliated MP Site shall be among the top .... sites offering
products similar to the Exclusive Products in terms of traffic and audience
reach (as measured by page views and percentage of Internet/Online audience as
published by Media Metrix or another leading Internet audience research
organization acceptable to AOL).
C. Sales Strength:
MP must generate at least .... applications for .... on the Affiliated MP Site
during the twelve (12) month period following the Official Launch Date or ....
Approved Applications for its .... on the Affiliated MP Site during the final
three (3) months of the Initial Term.
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