Telecommunications Marketing Agreement [Amendment No. 4] - Talk.com Holdings Inc., Talk.com Inc. and America Online Inc.
AMENDMENT NO. 4
This AMENDMENT NO. 4 (this "Amendment"), effective as of June 30, 2000
(the "Amendment Date"), by and among Talk.com Holding, Inc. (formerly, Tel-Save,
Inc.) ("TS"), a Pennsylvania corporation, and Talk.com, Inc. (formerly, Tel-Save
Holdings, Inc.), a Delaware corporation ("Holdings"), with their principal
offices at 12020 Sunrise Valley Drive, Reston, Virginia 20190, on the one hand,
and America Online, Inc., a Delaware corporation with its principal offices at
22000 AOL Way, Dulles, Virginia 20166 ("AOL"), on the other hand (each a "party"
and, collectively, the "parties").
INTRODUCTION
TS, Holdings and AOL are parties to the Telecommunications Marketing
Agreement, dated as of February 22, 1997, as heretofore corrected and amended by
letter, dated April 23, 1997, and amended by an Amendment No. 1, dated January
25, 1998, an Amendment No. 2, dated May 14, 1998, and an Amendment No.3 dated as
of October 1, 1998 (as so corrected and amended to the date hereof, but without
giving effect to this Amendment, the "Agreement"). Capitalized terms used in
this Amendment without other definition are defined as in the Agreement. In
light of both parties' desire to increase the number of End Users of the
Services, and without either party making any admission of fault or wrongdoing,
the parties hereby agree as follows:
TERMS
1. For each of the calendar quarters ending June 30, 2000 and September
30, 2000, respectively, AOL grants TS a $1,000,000 credit against the
amount due from TS to AOL for each such quarter pursuant to Section
V.B.1(c)(iii) and (iv) of the Agreement
2. TS has provided AOL with proposed
*** [MARKETING AND PROMOTIONAL SERVICES TO BE DELIVERED].
3. In consideration of, and acknowledging that the Release is a condition
to, the parties' agreement to enter into this Amendment, as of June 30,
2000, TS and Holdings each hereby irrevocably waives and releases all
claims, suits, demands, actions, and rights, whether known, unknown,
contingent, or fixed (individually and collectively referred to as the
"Claims"), against AOL and its current and former directors, officers,
agents, employees, affiliates and assigns (collectively, the "AOL
Released Parties") arising prior to June 30, 2000, and arising out of
or in any way related to the AOL Released Parties' respective roles,
rights, responsibilities, or obligations in connection with the
provision, involvement, approval or offer of marketing programs or
services related to the ***, provided, however, that nothing contained
in this Section or this Amendment shall serve to release Claims against
the AOL Released Parties asserted by unaffiliated third-parties related
to the provision, terms, conditions or promotions of or relating to
Talk.com's
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telecommunications services or the ***. Further, it is expressly
understood and agreed that this waiver and release is not intended to
release Claims directly arising out of the Services Agreement, dated as
of December 1, 1999, between TS and Direct Marketing Services. This
Release shall be effective notwithstanding any terms to the contrary
contained in the Agreement or this Amendment.
4. 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 hereby. If any term, provision,
covenant or restriction of this Amendment is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants, and restrictions of this
Amendment shall remain in full force and effect and shall in no way be
affected, impaired or invalidated and the parties shall negotiate in
good faith to modify this Amendment to preserve, to the fullest extent
legally permitted, each party's anticipated benefits and obligations
under this Amendment. If the parties are unable to so agree, the matter
shall be resolved pursuant to Article XI.D of the Agreement. This
Amendment does not, and shall not be construed to, modify any term or
condition of the Agreement (including, without limitation, any payment
obligations under the Agreement) except as expressly provided 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. This Amendment shall be governed by the
internal laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be signed on
their behalf as of the date first written above.
AMERICA ONLINE, INC.
By: _____________________
Name:
Title: Senior Vice-President
TALK.COM, INC. TALK.COM HOLDING, INC.
By: _____________________ By: ____________________
Name: Edward B. Meyercord Name: Edward B. Meyercord
Title: Executive Vice President Title: Executive Vice President