Consulting Agreement - Provident Indemnity Life Insurance Co., Provident American Life and Health Insurance Co. and Lynx Capital Group LLC
LYNX CAPITAL GROUP, LLC
CONSULTING AGREEMENT
This Agreement (the "Agreement") is entered into as of the 31st day of
March, 1998 by and among PROVIDENT INDEMNITY LIFE INSURANCE COMPANY, a
Pennsylvania corporation ("PILIC"), and PROVIDENT AMERICAN LIFE AND HEALTH
INSURANCE COMPANY, a Pennsylvania corporation ("PALHIC") (collectively referred
to herein as ("The Provident")), and LYNX CAPITAL GROUP, LLC, a California
Corporation ("Consultant").
BACKGROUND
A. Consultant is engaged in the business of providing consulting and
investment management and advisory services (the "Consulting
Services").
B. The Provident is desirous of engaging Consultant as a consultant
upon the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. CONSULTING SERVICES. The Provident hereby engages
Consultant to act as a consultant with respect to a possible agreement
to be entered into with America On-Line relative to the marketing of
health insurance products over the internet and the establishment of a
web site for The Provident. Provident intends to form a separate
business unit for the purpose of selling healthcare related insurance
directly to consumers over the internet. At the request of Provident
Consultant shall manage the business unit until such time that the unit
is operational and a qualified management team is in place. At the
request of Provident, Consultant shall develop an enterprise to be
known as the Insurion.com division of Provident American Corporation,
or a subsidiary thereof. At the request of Provident, Consultant shall
use its best efforts to enter into interactive marketing agreements
with internet service providers and search engine specialty content
providers. At the request of Provident Consultant shall use its best
efforts to obtain financing pursuant to such instructions provided by
Provident to Consultant, In the performance of the Consulting Services:
a. Consultant shall from time to time provide the
services of Michael Ashker and one other person designated by him; and
b. neither Consultant nor any person acting on behalf
of Consultant hereunder shall be deemed to be an agent, employee,
officer, owner, or joint venturer of The Provident.
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2. COMPENSTION.
a. The provident agrees to pay Consultant a
consulting fee for the Consulting Services rendered to The Provident hereunder
in the amount of Ten Thousand ($10,000) Dollars per month (the "Consulting
Fee").
b. In addition, The Provident agrees to pay or
reimburse Consultant for reasonable travel and other related expenses incurred
by Consultant; it being understood that Consultant shall submit requests for
reimbursement twice a month, and The Provident shall have the right at the end
of any reimbursement period, to advise Consultant as to any limitations on
reimbursement imposed by The Provident thereafter, it being understood that any
such limitation shall be reasonable and not preclude Consultant from performing
the services required to be performed hereunder.
c. Consultant shall receive the following options:
(1) Options to purchase 150,000 shares of
Provident American Corporation ("PAMCO")
Common Stock upon the closing of an agreement
(the "AOL Agreement") between PAMCO and
American On Line, Inc. ("AOL"), whereby PAMCO
will launch a medical insurance web site
through AOL. The issuance of such options
shall be further conditioned upon the
AOL/PAMCO web site becoming operational and
the securing of financing with regard to the
venture. The exercise price of the options
granted hereunder shall be equal to the
average closing price of PAMCO Common Stock
during the 60 day period immediately
proceeding the closing of the AOL Agreement.
The option shall expire three years from the
date of grant.
(2) Options to purchase 100,000 shares of PAMCO
Common Stock upon securing equity funding for
the venture in an amount not less than $10
Million. the exercise price of the options
shall be equal to the closing price of PAMCO
Common Stock during the 60 days immediately
preceding the closing regarding such
financing. The options shall expire three
years from the date of grant.
(3) Options to purchase 50,000 shares of PAMCO
Common Stock upon the Internet based retailing
venture and web site associated therewith to
be known as "Insurion.com" becoming
operational, based primarily upon the efforts
of Consultant. The exercise price of the
options granted hereunder shall be equal to
the average closing price of PAMCO Common
Stock during the 30 business days immediately
the Insurion.com web site becomes operational.
The options shall expire three years from the
date of grant.
(4) Options to purchase a total of 50,000 shares
of PAMCO entering into interactive
advertising/marketing agreements with interned
service providers and search engine specialty
content Common Stock pursuant to Schedule
2c.(3) hereof, regarding providers, referenced
therein. The exercise price of the options
shall be equal to the average closing price of
PAMCO Common Stock during the 30 business days
immediately preceding entering into agreements
with the service providers set forth in
Schedule 2c.(c) hereto. The options hall
expire three years from the date of grant.
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(5) Options to purchase 50,000 shares of PAMCO,
provided Consultant obtains funding for
Provident in an amount not less than $5
Million from Health Plan Services Corporation,
First Health Corp., or any other insurance
companies whose products are sold through
Provident's web sites. The exercise price of
the options shall be equal to the average
closing price of PAMCO Common Stock during the
30 business days immediately preceding the
closing of the funding or any portion thereof,
in which the $5 Million threshold is achieved.
The options shall expire three years from the
date of grant.
3. NON-COMPETITION/CONFIDENTIALITY.
a. During the term of this Agreement, and for a period
three (3) months after the termination of this Agreement, Consultant agrees that
it shall not offer Consulting Services to any health insurance company without
the prior written consent of The Provident.
b. Consultant acknowledges and agrees that The
Provident has been requested by Consultant to disclose certain Confidential
Material which is either non-public, confidential, and/or of a proprietary
business nature, concerning the business and financial affairs of The Provident,
the disclosure of which to members of the general public may be unlawful and
would cause irrevocable harm to The Provident. Without the prior written consent
of The Provident, except as may be required by law, Consultant agrees that
Consultant will not disclose to any person the fact of any discussions between
Consultant and The Provident, the fact that Consultant has requested or received
any Confidential Material, except as may be required by applicable laws, in
which Consultant shall give five (5) days written notice to such effect tot The
Provident before any such disclosure.
c. (1) The term "Confidential Material" means all
information concerning The Provident's business and financial affairs, including
the marketing of life and health insurance products, statutory and GAAP
accounting procedures, specific details concerning The Provident's business,
such as loss ratios, the management and processing of claims for health and life
insurance benefits, policy and product forms, agents, policyholders, and any
other information relative to the operations, accounting, employees, corporate
proceedings, and relevant data (regardless of whether written, transmitted
orally, visually, electronically, or in any other manner, or whether received by
Consultant prior or subsequent to the date of this Agreement) which is provided
to Consultant by or at the direction of The Provident, any of its officers,
directors, employees, agents, or affiliates, as well as all analyses,
compilations, data, studies, or other documents or work products containing or
based, in whole or in part, on any such Confidential Material and Consultant's
review thereof. The term "Confidential Material" shall not include any
information that (i) is or becomes available to third parties, to any regulatory
agencies, or to the securities trading industry generally without breach of this
agreement by Consultant, (ii) was, at the time of receipt, otherwise known to
Consultant free of restrictions on further disclosure, (iii) was developed by
Consultant independently before the date of this agreement, provided that
Confidential Material is not used as a basis for such development, or (iv)
becomes known or available to Consultant from a source other than The Provident,
without breach of this agreement by Consultant. Consultant agrees that all
Confidential Material is the sole and exclusive property of The Provident.
(2) The term "person" as used herein shall be
interpreted broadly to include, without limitation, any corporation, company,
partnership, or individual.
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4. ADMINISTRATIVE PROVISIONS.
a. The Provident is under no obligation, by virtue of
this Agreement or otherwise, to disclose any information to Consultant. If at
any time The Provident so requests, Consultant will promptly return to The
Provident, upon request, all copies of any Confidential Material in Consultant's
possession or in the possession of Consultant's representatives, and Consultant
will destroy all copies of any analyses, compilations. studies, or other
documents prepared by Consultant or for Consultant's use containing or
reflecting any Confidential Material.
b. Consultant agrees that The Provident shall be
entitled to equitable relief, including the remedies of injunction and specific
performance, in the event of any breach of the provisions of this Agreement, in
addition to all other remedies available to The Provident at law or in equity.
c. It is further understood and agreed that no failure
or delay by The Provident to exercise any right, power, or privilege hereunder
will be interpreted as a waiver thereof, nor will any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
right, power, or privilege hereunder.
d. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania. 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.
e. This Agreement shall be binding upon Consultant,
Consultant's officers, directors, employees, agents, shareholders, and any
subsidiaries or affiliates, and all officers, directors, employees, agents, and
shareholders thereof, and Consultant's respective successors and assigns. All
rights and benefits of The Provident as provided hereunder shall inure to the
benefit of any corporation or partnership which is an affiliate of The Provident
at any time between the date hereof and the date that such right or benefit
hereunder is asserted.
f. Consultant's agreement not to disclose any of the
Confidential Materials and to return and/or destroy all Confidential Materials
as set forth herein shall survive the termination of any discussions or
relationship between Consultant and The Provident.
g. Notwithstanding anything to the contrary in this
Agreement, however, nothing herein shall prevent Consultant from purchasing the
securities of any issuer in the health insurance or any other business, whether
for Consultant's own account or for the accounts of affiliates or clients of
Consultant and nothing herein shall prevent Consultant from communicating with
the management of any such issuer.
5. TERMINATION. This Agreement shall be Terminable by either
party upon five (5) days' prior written notice to such
effect to the other party. Notwithstanding the foregoing,
in the event this Agreement is terminated by The Provident,
the consulting fee shall be paid to Consultant for a period
of sixty (60) days thereafter. In the event of a
termination by Provident, there shall be no obligation to
issue options pursuant to Sections 2c.(2), (3) or (4)
unless all conditions have been fulfilled by Consultant
prior to such notice of termination. Should Consultant, at
the time of termination, have performed substantial value
added services in connection with Sections 2c.2(2), (3) or
(4) hereof, the parties agree in good faith, to negotiate a
materially acceptable number of options to be granted
thereunder. All expenses shall be reimbursed through
termination. [OPEN]
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6. RESTRICTION ON PURCHASE AND SALE OF STOCK.
a. Consultant, its officers, directors, affiliates,
and shareholders agree that each shall comply with all applicable state and
federal securities laws, regulations, and rules relating to the purchase and
sale of all securities issued by The Provident.
b. During the term of this Agreement and for a period
of fifteen (15) business days following the termination of this Agreement,
Consultant, its officers, directors, affiliates, and shareholders agree not to
purchase or sell any shares of the capital stock of the Provident, except that
Lynx Technology Fund (the "Fund") shall not be subject to the restrictions
herein so long as the knowledge of Michael Ashker (and other representatives of
Consultant providing services hereunder) is not attributable to the Fund and the
Fund receives an option of counsel to the effect that such purchase or sale is
not in violation of applicable federal or state securities laws.
c. Consultant may elect to distribute such shares of
Provident Common Stock to limited partners of the Fund, provided such
transferees are subject to the same restrictions, if any, as Consultant, and
Consultant delivers an opinion of counsel to Provident that such transfer is
being made pursuant to applicable exemptions from the registration provisions
under federal and state securities laws.
7. MISCELLANEOUS.
a. Effective Date. This Agreement shall become effective as
of February 1, 1998, provided however Consultant hereby acknowledges that this
Agreement is subject to and conditioned upon the approval of the Board of
Directors of PAMIC.
b. Governing Law/Consent to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania. 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 litigated only therein.
c. Successors and Assigns. The Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
administrators, successors and assigns.
d. Notice. Any notice hereunder, if mailed, shall be deemed
given and received 48 hours after mailing, and if sent by professional express
service, notice shall be deemed given and received at the time of actual
delivery. Notices shall be sent to the following addresses, or such other
addresses as the parties shall designate in writing from time to time:
If to PILIC: Provident Indemnity Life Insurance Company
2500 DeKalb Pike
P.O. Box 511
Norristown, PA 19404-0511
Attention: Alvin H. Clemens, Chairman
If to PALHIC: Provident American Life and Health Insurance Company
2500 DeKalb Pike
P.O. Box 511
Norristown, PA 19404-0511
Attention: Alvin H. Clemens, Chairman
If to Consultant: Lynx Capital Group, LLC
2601 Fairoaks Blvd., Suite 150
Sacramento, CA 85864
Attention: Michael Ashker, Managing Director
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e. Expenses. Each party hereto shall pay its own expenses
including, without limitation, legal and accounting fees and expenses, incident
to the negotiation and preparation of this Agreement and to its performance and
compliance with the provisions contained herein.
f. Entire Agreement: Amendments: and Waivers. This
Agreement constitutes the entire understanding and agreement among the parties
hereto relative to the subject matter hereof. Any amendments to the Agreement
must be in writing, signed by each party hereto. The failure of each party
hereto to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of the provision, nor in any way to affect the validity
of this Agreement or any part hereof or the right of such party thereafter to
enforce each and every such provision. No waiver of any breach of this Agreement
shall be held to constitute a waiver of any other or subsequent breach.
g. Partial Invalidity. In case any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein, unless the deletion of the provision
or provisions would result in such a material change as to cause completion of
the transactions contemplated herein to be unreasonable.
h. Execution in Counterparts. This Agreements may be
executed by the parties hereto signing the same instrument, or by each party
hereto signing a separate counterpart or counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument. The parties agree that documents executed by facsimile shall be
acceptable in this transaction, and the signatures thereof shall have the same
force and effect as original signatures.
i. Waivers. Any one party may, by written instrument,
extend the time for the performance of any of the obligations or other acts of
the other party and with respect to this Agreement (a) waive any inaccuracies in
the representations and warranties of the other party in this Agreement or in
any document delivered pursuant to this Agreement, (b) waive compliance with any
of the covenants of the other party contained in this Agreement, and (c) waive
the other party's performance of any of its obligations set out in this
Agreement. Any agreement on the part of the parties hereto for any such
extension or waiver shall be validly and sufficiently authorized for the
purposes of this Agreement if it is approved by the persons authorized to make
such agreements on behalf of the parties hereto.
j. Titles and Headings. Titles and headings to Paragraphs
herein are inserted for convenience of reference only and are not intended to be
a part of or to effect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first above written,
PROVIDENT INDEMNITY LIFE
INSURANCE COMPANY
Attest:______________________________ By: _________________________________
M. F. Beausang, Jr., Secretary Alvin H. Clemens, Chairman
PROVIDENT AMERICAN LIFE AND
HEALTH INSURANCE COMPANY
Attest:______________________________ By: _________________________________
M. F. Beausang, Jr., Secretary Alvin H. Clemens, Chairman
with respect to Section 2c. only]
PROVIDENT AMERICAN CORPORATION
By: _________________________________
Alvin H. Clemens, Chairman
LYNX CAPITAL GROUP, LLC
Attest:______________________________ By: _________________________________
Michael Ashker, Managing Director
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SCHEDULE 2c.(3)
Interactive advertising/marketing agreements to be entered into any
three (3) of the following entities, or such others as may be mutually agreed to
by the parties hereto:
1. Lycos
2. Infoseek
3. Yahoo
4. Netscape
5. Excite
6. Schwab
7. Etrade
8. Intuit
9. Cnet
10. Biztravel
11. Preview
12. Microsoft
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