Exhibit 10.4
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MARKETING AGREEMENT
This Marketing Agreement is entered into as of November 5, 2001 (the
"Effective Date") by and between Howard Johnson & Company, a Delaware
corporation ("Howard Johnson"), and eBenX, Inc., a Minnesota corporation
("eBenX").
Background
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Howard Johnson offers a variety of products and employee benefits
services to its customers. eBenX offers Internet-based enrollment and benefit
administration services to employers. Howard Johnson and eBenX believe that the
marketing by Howard Johnson of the services provided by eBenX as part of the
overall package of services marketed by Howard Johnson to certain of its
existing and potential customers would be advantageous to both parties. This
Agreement is being executed in connection with that certain Asset Purchase
Agreement (the "Purchase Agreement"), dated October 19, 2001, by and between
eBenX and Howard Johnson, pursuant to which eBenX has agreed to purchase certain
assets from Howard Johnson relating to its health and welfare services business.
NOW THEREFORE, the parties hereto agree as follows:
1. Definitions.
(a) "Agreement means this agreement together with all exhibits and
schedules hereto, and any amendments to the foregoing.
(b) "eBenX Health and Welfare ("H&W") Services" mean those health and
welfare benefits administration services provided by eBenX to employers as set
forth on Exhibit "A" attached hereto or the Revised Services as set forth in
Section 2(c) hereof.
(c) "Client" means an employer that has entered into a Client Agreement
with eBenX.
(d) "Client Agreement" means an agreement between eBenX and a Client
for the provision of eBenX H&W Services and any extensions thereof; provided,
however, that in the event the term of the written agreement or extension shall
have been concluded but eBenX continues to provide eBenX H&W Services to such
Client, the Client Agreement shall be deemed to continue for the time period
that such eBenX H&W Services are provided to such Client.
(e) "Plan" means any benefit plan with respect to which eBenX H&W
Services are provided.
(f) "Referral" shall have the meaning set forth in Section 2(a)(iii)
below.
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2. Sales and Marketing of eBenX H&W Services.
(a) During the term of this Agreement, Howard Johnson shall:
(i) use commercially reasonable efforts to market the eBenX
H&W Services to certain clients of Howard Johnson, and shall include
the eBenX H&W Services as an optional service in presentations to such
potential Clients, including formal proposals and written marketing
materials. All descriptions of the eBenX H&W Services provided to
potential Clients shall consist of materials supplied by eBenX and
subject to the approval of Howard Johnson;
(ii) make Howard Johnson marketing personnel available for up
to four hours of training by eBenX regarding the eBenX H&W Services,
either in person or by telephone or videoconference, when scheduled
upon reasonable advance notice by eBenX; provided, however, that at the
sole and absolute discretion of Howard Johnson, Howard Johnson may make
its marketing personnel available for additional training by eBenX;
(iii) (A) subject to the following proviso, forward to eBenX a
copy of each request for proposal from a potential Client which
includes services equivalent to the eBenX H&W Services, and refer to
eBenX certain customers of Howard Johnson who, to the knowledge of
Howard Johnson (as defined below) request assistance with services
included within the description of eBenX H&W Services (in each case, a
"Referral"); provided, however, that if Howard Johnson elects not to
refer a potential Client to eBenX (which it may do in its sole and
absolute discretion), Howard Johnson may not refer such potential
Client to any other person. As used in this subsection (iii) and in
Section 4 of this Agreement, such Referral may also include, if
reasonably requested by eBenX, procurement by Howard Johnson of
information about the potential Clients needs for services equivalent
to the eBenX H&W Services, discussion between Howard Johnson and eBenX
regarding the scope and needs of the potential Client, availability by
Howard Johnson to participate in joint client presentations, and the
provision by Howard Johnson of certain additional information about the
potential Client's prior history of purchasing services similar to
eBenX H&W Services. Upon any Referral by Howard Johnson to eBenX, eBenX
shall, within five Business Days, provide written notice to Howard
Johnson stating whether it is willing to accept (a "Preliminary Accept
Notice") or decline (a "Decline Notice") such Referral. If eBenX
provides to Howard Johnson a Preliminary Accept Notice, eBenX shall
work directly with the Client in accordance with the terms set forth in
Article IV herein. As used in this subsection (iii), "knowledge of
Howard Johnson" is defined as, after due inquiry, the actual knowledge,
within the scope of such individuals' employment responsibilities, of
the senior management team and customer relationship managers of Howard
Johnson.
(B) Notwithstanding subsection (A), Howard Johnson shall be
free to refer a Client or potential Client to any third party if: (v)
Howard Johnson receives a Decline Notice, (w) the Client or potential
Client informs Howard Johnson that it is unwilling to be referred to,
continue to retain or negotiate with eBenX, (x) the quality of services
provided by eBenX have been reported to Howard Johnson by existing or
previous Clients to be below industry standards and such reports have
been reviewed with eBenX, and eBenX has not, in the view of such
Clients, improved the quality of such services, (y) Howard Johnson
receives a Preliminary Accept Notice, but thereafter eBenX and the
Client mutually agree (which agreement eBenX shall not unreasonably
withhold) that eBenX cannot perform the services
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required by the Client, and (z) at the sole and absolute discretion of
Howard Johnson, if eBenX breaches its obligations pursuant to Section
4(a) hereof. In the case of clause (w) hereof, Howard Johnson shall
within ten (10) days notify eBenX of such Client's or potential
Client's unwillingness to be referred to eBenX (the "Unwilling
Notice"). The Unwilling Notice shall set forth the reason the Client or
potential Client was unwilling to be referred to eBenX; provided,
however, that if such Client or potential Client requests that such
reason not be disclosed to eBenX, the Unwilling Notice need not provide
any explanation for the Client's or potential Client's unwillingness to
be referred to eBenX.
(C) Notwithstanding subsection (A), AutoNation Benefits
Company, Inc. ("AutoNation") shall be considered, for the purposes of
this Agreement, a Referral that has been accepted by eBenX upon the
earliest to occur of (x) the receipt by eBenX of a written or
electronic commitment by AutoNation to enter into a Client Agreement,
(y) the receipt by eBenX of a written or electronic rescission from
AutoNation of the termination notice dated November 1, 2001 and (z) the
date that is two years from the date hereof if eBenX continues to
provide eBenX H&W Services to AutoNation as of such date. Upon the
occurrence of a Referral, as set forth in this subsection (C),
AutoNation shall be deemed to have entered into a Client Agreement with
eBenX.
(iv) use commercially reasonable efforts to cooperate with
eBenX and assist eBenX in the preparation of formal proposals in
response to Referrals; and
(v) at the sole and absolute discretion of Howard Johnson,
provide eBenX with introductions to potential Clients and assist eBenX
in arranging presentations to potential Clients.
(b) During the term of this Agreement, at the expense of eBenX, eBenX
shall:
(i) prior to the release of any marketing materials describing
the eBenX H&W Services, (A) provide such materials to Howard Johnson
for review and approval and (B) permit Howard Johnson to complete any
and all necessary regulatory reportings or filings that relate to such
materials;
(ii) provide to Howard Johnson the number of copies of
marketing materials requested by Howard Johnson;
(iii) provide one or more individuals to respond to Howard
Johnson's request for input on requests for information from potential
Clients; provided, however, that eBenX exercises reasonable care in the
selection of personnel and the employees so designated have sufficient
skills and training to provide the services as required by this
Agreement;
(iv) respond in a timely fashion to Referrals; and
(v) provide training to a mutually agreeable number of Howard
Johnson's sales and marketing personnel on relevant aspects of the
eBenX H&W Services.
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(c) If at any time during the term of this Agreement eBenX desires to
alter or add to the eBenX H&W Services (such altered or added eBenX H&W Services
being referred to as, the "Revised Services"), eBenX shall provide written
notice to Howard Johnson of the Revised Services. Upon receipt of such notice,
Howard Johnson shall within 10 business days provide written notice to eBenX
stating whether it is willing to accept or decline the Revised Services. If
Howard Johnson accepts the Revised Services, such Revised Services shall be
deemed to be included in Exhibit A hereto.
3. Fees to Clients. The fees and expenses quoted by eBenX in each
proposal to a potential Client pursuant to a Referral will be determined by
eBenX on a Client-by-Client basis, using eBenX's standard base fees and making
adjustments to reflect the specific eBenX H&W Services to be provided,
Client-specific information, the Referral Royalty and such other factors as
eBenX may deem relevant. All fees may include reasonable annual inflation
factors and reasonable implementation fees.
4. Referral Royalties. (a) eBenX shall pay Howard Johnson or its
Affiliates a royalty equal to 10% of the gross revenues earned by eBenX for the
first four years of any Client Agreement entered into by eBenX pursuant to a
Referral, plus a royalty equal to 5% of the gross revenues each following year
for the remainder of the Client Agreement (a "Referral Royalty"). The first
royalty payment for each Client shall be made to Howard Johnson on the sixtieth
day after the initial date that eBenX has commenced services for such Client,
and all subsequent royalty payments shall be made on a monthly basis thereafter.
Notwithstanding the foregoing, the parties agree that if, in the reasonable
judgment of eBenX, the cost of the such Referral Royalty makes eBenX's pricing
non-competitive on a case-by-case basis, they will discuss, in good faith,
whether the Referral Royalty may be reduced for such case. Such discussion,
however, in no way obligates Howard Johnson to agree to such a reduction.
(b) Notwithstanding subsection (a), with respect to AutoNation, eBenX
shall pay Howard Johnson or its Affiliates a royalty equal to 10% of the gross
revenues earned by eBenX for the first four years of such Client Agreement, plus
a royalty equal to 5% of the gross revenues each following year for the
remainder of the Client Agreement (the "AutoNation Royalty"). The first royalty
payment of the AutoNation Royalty shall be made to Howard Johnson on the
thirtieth day after the occurrence of a Referral by Howard Johnson pursuant to
Section 2(iii)(C) hereof, and all subsequent royalty payments shall be made on a
monthly basis thereafter.
(c) In the event that eBenX receives a referral for the same potential
Client from another source, eBenX shall follow the following procedures:
(i) If such referral is generated from an employee of eBenX,
Howard Johnson shall receive the Referral Royalty set forth in
subsection (a) above; provided, however, with respect to proposals
relating to the provision of eBenX H&W Services only, if such proposal
has already been submitted by eBenX to the potential Client and has
been in the process of being reviewed by the potential Client for a
period of less than 180 days, no Referral Royalty shall be due and
payable.
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(ii) If such referral is generated by a third party (the
"Third Party Referrer"), eBenX shall provide to Howard Johnson or to
the potential Client pursuant to the Referral terms for the eBenX H&W
Services to be provided to the potential Client that are, excluding (A)
factors affecting eBenX's cost of providing eBenX H&W Services, such as
the division of services in cases where eBenX shall be providing
services jointly with the Third Party Referrer or Howard Johnson, and
(B) the effect of any difference in cost to eBenX between the payment
of the Referral Royalty that would be paid to Howard Johnson as opposed
to any amounts payable to the Third Party Referrer, no less favorable
than those offered to the Third Party Referrer or to the potential
Client pursuant to the referral from another source, without regard to
the size or volume of business eBenX may transact with such Third Party
Referrer. In the event that eBenX submits proposals to a potential
Client in response to both a Referral and a Third Party Referrer
referral, a Referral Royalty shall not be due and payable if eBenX
enters into a Client Agreement as a result of the proposal made in
response to the Third Party Referrer referral. In the event that there
is any question regarding which proposal resulted in a Client
Agreement, eBenX and Howard Johnson shall negotiate in good faith a
resolution of such question.
(iii) In the event that eBenX has submitted a proposal, which
has been in the process of being reviewed by the potential Client for a
period of less than 180 days, in response to (A) a request for proposal
for eBenX H&W Services only directly from such potential Client, or (B)
a referral from a Third Party Referrer with respect to eBenX H&W
Services only that is received by eBenX prior to receipt of the
Referral, eBenX may (x) pursue both the Referral and the potential
Client request or Third Party Referrer referral, as applicable, or (y)
provide to Howard Johnson a Decline Notice with respect to such
Referral; provided, however, that if such Decline Notice is not
received by Howard Johnson by 5:00 PM Central Standard Time two
business days after receipt by eBenX of the Referral, which Referral
shall be made by Howard Johnson electronically or in writing, eBenX
shall be deemed to have accepted such Referral. Notwithstanding the
foregoing, in the event that eBenX requests that Howard Johnson provide
any assistance in connection with any proposal in response to such
request for proposal or referral, eBenX and Howard Johnson shall
negotiate in good faith to determine the dollar amount of the Referral
Royalty owed to Howard Johnson pursuant to this Section 4.
5. Expenses. Except as expressly provided herein, each of Howard
Johnson and eBenX shall be solely responsible for any and all day-to-day costs
and expenses incurred in connection with the performance of their respective
obligations under this Agreement, including, without limitation, telefax and
mailing expenses and other general administrative costs.
6. Sales Tax. In addition to the payments set forth herein, eBenX shall
be liable for, and shall indemnify Howard Johnson or its Affiliates, as
applicable, for any sales and/or use tax, VAT, transfer tax, excise tax, tariff,
duty or any other similar tax or payment in lieu thereof imposed by any
governmental authority arising from the Services provided hereunder, or arising
out of this Agreement. eBenX shall not be responsible for payment of any income,
franchise, gross receipts or personal property taxes paid by Howard Johnson or
its Affiliates as a result of this Agreement.
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7. Exclusivity. Howard Johnson shall not market or promote any entity
that offers services that compete with the eBenX H&W Services during the term of
this Agreement; provided, however, the foregoing restriction shall not prevent
Howard Johnson from entering into ad hoc agreements with third parties with
respect to Referrals for which eBenX has provided a Decline Notice to Howard
Johnson. In addition, Merrill, Lynch, Pierce, Fenner & Smith Incorporated shall
not execute more than one strategic partnership or referral agreement, with
respect to services that are equivalent to the eBenX H&W Services as of the date
hereof, with any competitor of eBenX during the term of this Agreement;
provided, however, that Howard Johnson shall provide to eBenX terms with respect
to the Referral Royalty that are no less favorable than those offered in such
strategic relationship or referral agreement. After the conclusion of the
initial term of this Agreement, Howard Johnson shall give eBenX not less than
six months' advance notice prior to (i) commencing the marketing of services
offered by another provider of services substantially equivalent to the eBenX
H&W Services or (ii) commencing development of the internal capacity to provide,
with respect to H&W services, automated enrollment and benefit administration
services.
8. Confidentiality.
(a) Howard Johnson and eBenX agree that all information relating to
this Agreement and the eBenX H&W Services contemplated hereby shall be kept
confidential. Howard Johnson agrees that all information relating to this
Agreement and the eBenX H&W Services contemplated hereby shall not be used by
Howard Johnson, its Affiliates, and their respective representatives, directly
or indirectly, to compete with eBenX at any time. Such obligations of
confidentiality and non-competition shall extend to all such information,
whether exchanged orally or in written or electronic form, and whether or not
designated at the time exchanged as confidential. Each party shall be permitted
to disclose confidential information to its officers, directors, employees,
agents, consultants, attorneys and Affiliates who need to know such information
for the purpose of implementing this Agreement or the eBenX H&W Services
contemplated hereby, and agrees to notify such persons of the confidential
nature of such information and to be responsible for any unauthorized disclosure
of such information by such persons. Information shall not be deemed to be
confidential if it becomes publicly available after the date hereof other than
as a result of the unauthorized disclosure thereof by a party or by an officer,
director, employee, agent or Affiliate of a party, or is requested or required
to be disclosed pursuant to applicable laws or regulations or pursuant to
administrative or judicial process. In the event that a party or any of its
agents, representatives, Affiliates, employees, officers or directors becomes
legally compelled to disclose any such confidential information, such party
shall provide the other with prompt written notice of such requirement so that
the other may seek a protective order or other remedy or waive compliance with
this Section 8 and, in the event that such protective order or other remedy is
not obtained, or the other party waives compliance with this Section 8, furnish
only that portion of such confidential information which is legally required to
be provided and exercise their best efforts to obtain assurances that
confidential treatment will be accorded such information.
9. Term and Termination.
(a) The term of this Agreement shall be two years commencing on the
Effective Date. At the conclusion of the initial term of this Agreement, the
parties may negotiate
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to extend the term of this Agreement for successive terms of one year. Such
negotiations, however, in no way obligates either party to any such extension.
(b) Either party may terminate this Agreement by written notice to the
other party upon a Material Breach of this Agreement by the other party. A
"Material Breach" means any of the following:
(i) except as set forth in subsection (vii) hereof, the
failure by a party to perform its material obligations under this
Agreement and continuation of such failure for thirty (30) days
following receipt of written notice of such failure (specifying in
reasonable detail the nature of the failure) from the other party; or
(ii) a Material Breach of eBenX alone means any of the
following:
(A) the filing by eBenX of a petition in bankruptcy
or for reorganization or for the adoption of an arrangement
under The Bankruptcy Reform Act of 1978, as amended (or
similar law of the United States or any other jurisdiction,
which law relates to the liquidation or reorganization of
companies or the modification or alteration of the rights of
creditors) or an answer or other pleading admitting or failing
to deny the material allegations of such a petition or
seeking, consenting to or acquiescing in the relief therein
provided;
(B) the entry of a court order against eBenX party
which has not been vacated, set aside or stayed within 60 days
from the date of entry, either (i) appointing a receiver or a
trustee for all or a substantial part of eBenX property or
(ii) approving a petition filed or application made against it
for, or effecting an arrangement in, bankruptcy or made
against it for, or effecting an arrangement in, bankruptcy or
for a reorganization or other relief pursuant to any
bankruptcy act or for any other judicial modification or
alteration of the rights of eBenX creditors;
(C) an assignment by eBenX for the benefit of its
creditors or by its making a proposal to its creditors under
any bankruptcy law;
(D) consent to the appointment of a receiver or a
trustee (or other person performing a similar function) by
eBenX for all or a substantial part of its property;
(E) the assumption of custody or sequestration by a
court of competent jurisdiction of all or substantially all of
eBenX property, which custody or sequestration has not been
suspended or terminated within 60 days from its inception; or
(F) failure by eBenX to pay royalties to Howard
Johnson hereunder when due, if such failure is not remedied on
or before the tenth business day after notice of such failure
is given to eBenX (unless the failure to remedy is subject to
the dispute resolution provisions of Section 11(h) herein).
(c) If at any time Howard Johnson controls, is controlled by or is
under common control with a provider of services substantially similar to the
eBenX H&W Services,
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then eBenX may terminate this Agreement by written notice to Howard Johnson
effective 30 days following receipt of such termination notice.
(d) Notwithstanding the foregoing, each of Sections 4, 8 and 10 hereof
shall continue in full force and effect following termination of this Agreement
until the expiration (if any) thereof as set forth therein.
(e) Any termination by Howard Johnson or eBenX pursuant to Section 9(b)
above shall be without prejudice to any rights at law or in equity that either
Howard Johnson or eBenX may have for breach of contract or otherwise.
10. Indemnification. (a) Howard Johnson hereby agrees to defend,
indemnify and hold harmless eBenX and their Affiliates and their respective
officers, directors, employees and agents (collectively, "eBenX Indemnitees")
from and against any and all liabilities, losses, claims, damages, and expenses
of any nature, including reasonable attorneys' fees, arising out of or resulting
from any default or breach by Howard Johnson in the performance of its
obligations under this Agreement or any failure by Howard Johnson to perform its
covenants hereunder or any third party claim against any eBenX Indemnitee.
(b) The Company hereby agrees to defend, indemnify and hold harmless
Howard Johnson and its Affiliates and their respective officers, directors,
employees and agents (collectively, "Howard Johnson Indemnitees," and together
with eBenX Indemnities, the "Indemnitees") from and against any and all
liabilities, losses, claims, damages, and expenses of any nature, including
reasonable attorneys' fees, arising out of or resulting from any default or
breach by eBenX in the performance of its obligations under this Agreement or
any failure by eBenX to perform its covenants hereunder or any third party claim
against any Howard Johnson Indemnitee, including those claims related to future
intermediation transactions and existing transactions or in the provision of the
eBenX H&W Services, including, without limitation, any and all loss, liability,
damage, cost or expense of a customer of eBenX.
(c) Claims for indemnification under Sections 10(a) and 10(b) shall be
made pursuant to the procedures set forth in Sections 9.02(b) or 9.03(b),
respectively, of the Purchase Agreement. Nothing herein shall limit the rights
to indemnification, or the obligations to indemnify, of the parties under the
Purchase Agreement.
(d) Notwithstanding anything to the contrary contained in this
Agreement, the maximum amount of indemnifiable losses which may be recovered
from an Indemnitee arising out of or resulting from the causes set forth in (i)
Section 10(a) shall be an amount equal to 100% of the total Referral Royalties
received from eBenX by Howard Johnson pursuant to this Agreement, and (ii)
Section 10(b) shall be an amount equal to 100% of annual revenues from the
Clients referred to eBenX by Howard Johnson pursuant to this Agreement.
11. Miscellaneous.
(a) Except as otherwise specified in this Agreement, all costs and
expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this Agreement
and the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
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(b) All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to
have been duly given or made upon receipt) by delivery in person, by an
internationally recognized overnight courier service, by telecopy or registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 11.02):
(i) if to Howard Johnson:
Howard Johnson & Company
c/o Merrill Lynch & Co.
222 Broadway
17th Floor
New York, NY 10019
Telecopy: (212) 670-4819
Attention: Mark B. Goldfus, Esq.
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022-6069
Telecopy: (212) 848-7179
Attention: John A. Marzulli, Jr., Esq.
(ii) if to eBenX:
eBenX, Inc.
605 North Highway 169
Suite 1200
Minneapolis, MN 55441
Telecopy: (763) 614-2025
Attention: Chief Financial Officer
with a copy to:
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
260 South Broad Street
Philadelphia, PA 19102
Telecopy: (215) 568-6603
Attention: Lawrence D. Rovin, Esq.
(c) Each party agrees to comply with Section 11.03 of the Purchase
Agreement and each will use reasonable best efforts, including notifying their
respective
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employees, to keep confidential the contents of the other party's respective
information systems to which such party's employees may have access.
(d) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any Law or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force
and effect for so long as the economic or legal substance of the transactions
contemplated by this Agreement is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated by this Agreement are consummated as
originally contemplated to the greatest extent possible.
(e) This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and thereof and supersedes all
prior agreements and undertakings, both written and oral, between Howard Johnson
and eBenX with respect to the subject matter hereof and thereof.
(f) This Agreement may not be assigned by operation of law or otherwise
without the express written consent of Howard Johnson and eBenX (which consent
may be granted or withheld in the sole discretion of Howard Johnson or eBenX);
provided, however, that eBenX may assign this Agreement or any of its rights and
obligations hereunder to one or more Affiliates of eBenX without the consent of
Howard Johnson however eBenX remains liable hereunder; provided, further, that
this Agreement may, due to the sale of all or substantially all the assets of a
party to a third party purchaser, be assigned to such third party purchaser
without the written consent of the other party hereto. Any attempted assignment
in violation of this provision is void.
(g) Except for the provisions of Section 9 relating to indemnified
parties, this Agreement shall be binding upon and inure solely to the benefit of
the parties hereto and their permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other Person, including,
without limitation, any union or any employee or former employee of Howard
Johnson, any legal or equitable right, benefit or remedy of any nature
whatsoever, including, without limitation, any rights of employment for any
specified period, under or by reason of this Agreement.
(h) Except for the right to injunctive relief under Section 8 of this
Agreement, for which judicial relief shall remain available, any dispute,
controversy or claim (a "Claim") that cannot be resolved by the parties arising
out of or relating to this Agreement or the services covered by this Agreement
shall be settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") upon notice (the
"Arbitration Notice") of submission given by either Howard Johnson or eBenX to
the other in accordance with subsection (i) hereof, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The arbitration shall be held Philadelphia, Pennsylvania, if a claim is
brought by Howard Johnson or in New York County, New York, if a claim is brought
by eBenX or in such other location as the parties may mutually agree upon. The
arbitration will be conducted before a panel of three arbitrators, with one
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arbitrator named by each party within 15 days of receipt of Arbitration Notice
by the non-initiating party and the third named by the two party-appointed
arbitrators, or (if they should fail to agree on the third within 15 days after
the two party-appointed arbitrators have been named) by the AAA. The arbitrators
may not award non-monetary or equitable relief of any sort. They shall have no
power to award punitive damages or any other damages not measured by the
prevailing party's actual damages. The decision of the arbitrators made in
writing shall be final and binding upon the parties hereto; provided, however,
that the award and judgment of the arbitrators shall have no binding or
precedential effect with respect to any other controversy not before the
arbitrators, whether or not similar to or related to the specific controversy
decided by the arbitrators. All aspects of the arbitration shall be treated as
confidential. Neither the parties nor the arbitrators may disclose the
existence, content or results of the arbitration, except as necessary to comply
with legal or regulatory requirements. Before making any such disclosure, a
party shall give written notice to all other parties and shall afford such
parties a reasonable opportunity to protect their interests. The expenses of
arbitration, including reasonable compensation to the arbitrators, shall be
borne equally by the parties hereto, except that each party shall bear the
compensation and expenses of its own counsel and employees.
(i) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts executed in and
to be performed in that State.
(j) Each of the parties hereto hereby waives to the fullest extent
permitted by applicable law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated by this
Agreement. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
that foregoing waiver and (b) acknowledges that it and the other party hereto
have been induced to enter into this Agreement and the transactions contemplated
by this Agreement, as applicable, by, among other things, the mutual waivers and
certifications in this Section 11(j).
(k) This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement.
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IN WITNESS WHEREOF, the parties hereto, through their duly authorized
representatives, have executed this Agreement effective as of the day and year
first set forth above.
EBENX, INC.
By: /s/ John J. Davis
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John J. Davis
President and Chief Executive Officer
HOWARD JOHNSON & COMPANY
By: /s/ Paul T. Dully
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Paul T. Dully
Chief Financial Officer