E-Commerce Agreement - Provident American Corp., Insurion Inc., Provident Health Services Inc. and Healthplan Services Inc.
THE PROVIDENT AND HEALTHPLAN SERVICES
E-COMMERCE AGREEMENT
AGREEMENT made and entered into as of the 29th day of May, 1998, by and
among PROVIDENT AMERICAN CORPORATION, a Pennsylvania corporation ("PAMCO"),
INSURION, INC., a Pennsylvania corporation ("Insurion"), PROVIDENT HEALTH
SERVICES, INC., a Pennsylvania corporation ("PHS"), and HEALTHPLAN SERVICES,
INC., a Florida corporation ("HPS").
BACKGROUND
A. Effective February 1, 1998, Provident Indemnity Life Insurance
Company ("PILIC"), Provident American Life & Health Insurance Company ("PALHIC")
(collectively, "The Provident"), and HPS entered into a Services Agreement
pursuant to which HPS is providing certain administrative services to The
Provident ("HPS Services Agreement").
B. PHS and American On-Line, Inc. ("AOL") entered into an Amended and
Restated Interactive Marketing Agreement dated as of February 1, 1998 (the "AOL
Agreement") pursuant to which AOL has agreed to provide certain advertising and
distribution services for certain Products (as defined in the AOL Agreement) for
PHS.
C. Insurion is a wholly-owned subsidiary of PAMCO, and will seek to
establish strategic interactive marketing agreements and/or advertising
agreements with a number of internet service providers, search engines,
specialty e-commerce sites, and generally with other internet partners who
possess favorable demographic characteristics.
D. On or about March __, 1998, HPS paid PHS Seven Hundred and Fifty
Thousand Dollars ($750,000) to be treated by PHS as an off-set against the
Holding Fee paid by PHS to AOL as provided in the AOL Agreement.
E. The parties are desirous of entering into an agreement relative to
certain aspects of the operation of the business of Insurion.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
[***]
<PAGE>
ARTICLE 2
HPS ADMINISTRATIVE RIGHTS AND OBLIGATIONS
2.1 Exclusive Right. Subject to the terms and conditions of this
Agreement, the Administrative Agreement (as hereinafter defined), and the HPS
Services Agreement, the parties agree that HPS shall have the right to be the
exclusive administrator of all insurance business underwritten by The Provident
during the term of this Agreement and sold over the Insurion website and any
other form of e-commerce used by The Provident to sell policies of insurance.
2.2 Quality of Service Obligations. The rights granted to HPS hereunder
are conditioned upon the performance of services by HPS of a standard of quality
to be set forth in an e-commerce administrative services agreement in form
mutually satisfactory to the parties hereto (the "Administrative Agreement').
The parties agree to enter into the Administrative Agreement as promptly as
practicable, and that the Administrative Agreement shall contain appropriate
provisions to formulate a standard of quality and performance, including, but
not limited to, the following;
(a) the establishment of a Quality of Service Committee comprised
of an equal number of representatives of Insurion and HPS employees, plus one
additional independent committee member to be mutually agreed upon, the said
Committee to be responsible for establishing the operating and service standards
to be utilized by HPS in acting as; the third-party administrator as provided in
Section 2.3 hereof, and also the operating and service standards to be adhered
to by co-sponsors;
(b) the establishment by HPS of a separate and designated operating
unit for the e-commerce business generated by Insurion; and
(c) the implementation of guidelines of quality and performance
standards to be used in the processing of applications for coverage under any
insurance policy to be issued by The Provident, and any customer service,
claims, or other service to be provided by HPS.
2.3 Third-Party Administrator. PHS and Insurion shall use their best
efforts to cause HPS to have the right of first refusal to provide
administrative services for 811 Insurion co-sponsors which may require the
services of an outside administrator.
2.4 Identification of HPS. PHS and Insurion will (a) cause HPS to be
given frequent mention in a variety of formats, including but not limited to
banners, icons, portals, and sidebars on the Insurion website and any other form
of e-commerce, and will maintain a constant click through feature to a mutually
agreed upon HPS website, and (b) reference HPS as a partner and co-sponsor in
press releases and other information disseminated to the public (unless
restricted from doing so by another Insurion agreement then in force).
2
<PAGE>
2.5 Universal Processing Platform. Insurion hereby agrees to use its
best efforts to create and adopt a universal platform, based upon HPS's
electronic administration capabilities, for all e-commerce transacted through
the Insurion website.
ARTICLE 3
LICENSE FEES
Insurion intends to charge transaction fees to co-sponsors and others
for various services to be provided, including but not limited to a transaction
fee on each item of e-commerce transacted through the Insurion web site (the
"License Fees"). PHS agrees to pay to HPS an amount equal to four (4%) percent
of the License Fees generated by each co-sponsor relationship which exists. HPS
shall not receive any portion of any revenues paid to PHS by third parties for
the purposes of co-sponsor docking, advertising, front holding fees and other
fees for the right to participate in the sale of insurance products over the
Insurion website and any other form of e-commerce. Upon a Change in Control of
Insurion or the Initial Public Offering of Insurion, Insurion shall have the
right to terminate HPS's right to the License Fees upon payment to HPS of an
amount equal to the lower of (i) eight times the License Fees earned by HPS in
the two quarters prior to the Change of Control or Initial Public Offering, and
(ii) one times the License Fees projected to be earned by HPS based upon the
twelve-month forward pro-forma projections used for the purpose of doing a
secondary offering, IP0 or spin-out of Insurion. For purposes of this Agreement,
"Change in Control" means, with respect to Insurion, a sale of all or
substantially all of Insurion's assets; a merger, consolidation, spin-out,
spin-off, split-up, statutory share exchange or consolidation in which the
persons holding Insurion's voting securities immediately prior to the closing
date of such transaction (and assuming (i) [***] (ii) the exercise of all
warrants and options of Insurion outstanding on the closing date of such
transaction by the holders thereof) cease to hold more than 50% of the
outstanding voting power of the surviving or resulting corporation; or a
transaction or series of transactions in which a person or group (as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934), (i) who did not hold
voting securities of Insurion as of the date of this Agreement, acquires
beneficial ownership of more than 50% of the outstanding voting power of
Insurion or (ii) increased its ownership of voting securities of Insurion from
the number beneficially owned by such person or group as of the closing date of
such transaction to more than 50% of the outstanding voting power of Insurion.
For purposes of this Agreement, "Initial Public Offering" means Insurion's first
offering of common stock of Insurion that is registered under the Securities Act
of 1933, as amended, which offering is underwritten on a firm commitment or best
efforts basis and produces gross proceeds in excess of $25,000,000.
3
<PAGE>
ARTCLE 4
ISSUANCE OF WARRANTS TO PURCHASE
SHARES OF PAMC COMMON STOCK
4.1 PAMCO agrees to cause to be issued to HPS a warrant (the
"Warrant"), representing the right for a two (2) year period to purchase up to
One Hundred Thousand (100,000) shares of PAMCO's common stock, $.10 par value
(the "Common Stock"), at a price per share equal to Nine ($9.00) Dollars. In the
event that PAMCO issues any warrants after the Effective Date of this Agreement
and before six (6) months following the Effective Date of this Agreement
(excluding warrants or options issued to employees, consultants, or other
interactive marketing partners), having an exercise price lower than Nine
($9.00) Dollars per share, PAMCO agrees that the exercise price per share shall
be reduced to such lower exercise price. The Warrant shall further provide that
PAMCO shall have the right, upon thirty (30) days notice to cancel any
unexercised Warrant in the event that the average weekly last-sale price for
shares of PAMCO Common Stock over any consecutive eight (8) week period exceeds
$12.825
4.2 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
Warrant Agreement which shall be delivered to HPS on or before June 15, 1998 and
which shall contain terms and conditions reasonably acceptable to HPS.
ARTICLE 5
TERM AND TERMINATION
5.1 Term. This Agreement shall become effective as of May 29, 1998
and shall continue in effect until October 1, 1999 (the "Term").
5.2 Termination of Term Sheet. The Term Sheet dated March 18,1998 and
the Final Term Sheet dated May 26, 1998 are hereby terminated and of no further
force or effect. Upon the execution of this Agreement, no person shall have any
liability to any other person under the Term Sheets.
5.3 Renewal. At least ninety (90) days prior to the expiration of the
Term, the parties agree to negotiate in good faith to extend the Term of this
Agreement provided that such is for the mutual benefit of each party to this
Agreement.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Modification: Waivers. No modification, amendment or waiver of this
Agreement, or any part of it shall be valid unless in writing, signed by the
Party sought to be charged therewith. No waiver of any Breach or condition of
this Agreement shall be deemed to be a waiver of any subsequent Breach or
condition, whether of like or different nature.
4
<PAGE>
6.2 Governing Law. This Agreement shall be subject to and construed
under the laws of the Commonwealth of Pennsylvania (but not including the choice
of law rules thereof). The parties hereto agree to consent to the jurisdiction
and venue of the courts of the Commonwealth of Pennsylvania located in
Montgomery County, Pennsylvania, and of the United States District Court for the
Eastern District of Pennsylvania, and agree that all disputes between the
parties shall be litigated only therein.
6.3 References and Section Heading. Any reference to the singular shall
include reference to the plural, and vice versa, Part and section headings are
intended for the purpose of description only and shall not be used for purposes
of interpretation of this Agreement.
6.4 Severabilitv. In the event any court of competent jurisdiction
holds that a particular provision or requirement of this Agreement is in
violation of any Applicable Law, such provision or requirement shall be enforced
only the extent it is not in violation of such Applicable Law or is not
otherwise unenforceable, and all other provisions and requirements of this
Agreement shall remain in full force and effect.
6.5 Notices. Any notice, demand or other document required or
permitted to be delivered hereunder shall be in writing and shall be (i) mailed
by first-class, registered or certified mail, return receipt requested, postage
prepaid, (ii) delivered in person, by reputable delivery service, (iii) sent by
telegram, or (iii) transmitted by facsimi1e, and shall be addressed to the
recipient Party at the address indicated below, or at such other address as such
party shall indicate in a notice to the other Party sent in accordance with this
Section 6.5:
(a) If to HPS:
HealthPlan Services, Inc.
Attention: Phillip S. Dingle
Senior Vice President & Chief Counsel
If Delivered by Hand:
3501 Frontage Road
Tampa, FL 33607
If Delivered by U.S. Mail:
P.O. Box 30098
Tampa, FL 33630-3098
If Delivered by Fax:
813/287-6629
5
<PAGE>
(b) If to Provident:
If Delivered by Hand or by U.S. Mail:
James O. Bowles, President and
Chief Operating Officer
Provident Indemnity Life Insurance Company
2500 DeKalb Pike
Norristown, PA 19404-0511
If Delivered by Fax:
610/279-1486
(c) With a copy to:
M.F. Beausang, Jr., Esq.
Butera9 Beausang, Cohen & Brennan
630 Freedom Business; Center
Suite 212
King of Prussia, PA 19406-13:31
Each notice, demand or other document that is delivered in the manner described
above shall be deemed to be sufficiently delivered, given, served, sent,
provided, and received for all purposes at such time as it is delivered to the
addressee (with the return receipt, delivery receipt, affidavit of messenger or,
with respect to a facsimile transmission, the answerback being conclusive, but
not exclusive, evidence of such delivery), or at such time as delivery is
refused upon presentation.
6.6 Effective Date and Counterparts. The Effective Date of this
Agreement shall be May 29, 1998. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.7 Entire Agreement. This Agreement contains the whole of the
understanding between the Parties hereto relating in any manner of its subject
matter, and any representation, warranty, covenant, understanding or agreement
not contained or incorporated in it by reference shall be of no force or effect.
As of the Effective Date, this Agreement supersedes all prior proposals,
discussions, writings, and agreements between any of the parties to this
Agreement relating the subject matter hereof.
6
<PAGE>
6.8 Binding Agreement: Assignment. This Agreement and all the
provisions hereof will be binding upon and inure to the benefit of the parties
hereto and their permitted assigns. Neither this Agreement nor any other rights,
interests, or obligations hereunder may be assigned by any Party without the
prior written consent of the other Party hereto, which consent will not be
unreasonably withheld. Any assignment in violation of this Agreement shall be
void and to no effect.
Notwithstanding the foregoing, such of HPS and PHS shall, upon sixty (60) days'
prior written notice to such effect, have the right to assign the rights and
obligations hereunder to a corporation affiliated therewith.
6.9 Third Party Beneficiaries. This Agreement shall not, and is not
intended to, confer upon any party, other than the Parties hereto and their
successors and permitted assigns, any rights, remedies, obligations or
liabilities, except as expressly provided herein.
6.10 Force Mejeurs. Neither Party shall be liable for any delay or
failure to perform its obligations under this Agreement arising out of a cause
beyond its control or without its fault or negligence. Such causes may include,
but are not limited to, fires, floods, and natural disasters.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date set forth hereunder.
HEALTHPLAN SERVICES, INC.
Dated:___________________ By:______________________________________
Name: Phillip S. Dingle, Senior Vice
President and Chief Counsel
PROVIDENT AMERICAN CORPORATION
Dated:___________________ By:______________________________________
Name: James O. Bowles, President
INSURION, INC.
Dated:___________________ By:______________________________________
Name: Michael Ashker, President
PROVIDENT HEALTH SERVICES, INC.
Dated:___________________ By:______________________________________
Name: Michael Beausang, Secretary
7