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Exhibit 10.3(b)
AMENDMENT NO. 2
TO
RELATIONSHIP AGREEMENT DATED 9/22/97
By and Between
IPhysician Net Inc.
(f/k/a/ IPNI Communications Corporation or
Integrated Physician Networks, Inc.)
And
PictureTel Corporation
WHEREAS, iPhysician Net Inc. ("IPNI") and PictureTel Corporation ("PictureTel")
entered into a Relationship Agreement on September 22, 1997 (as amended by
Addendum No. 1 thereto (collectively, the "Agreement")) under which PictureTel
agreed to guarantee certain lease obligations for the benefit of IPNI;
WHEREAS, IPNI, in return for PictureTel's agreements to provide the above
guarantees agreed to certain conditions specified in the Agreement;
WHEREAS, PictureTel as of this date has not contractually entered into any such
guarantees and IPNI no longer desires that PictureTel enter into any such
guarantees; and
WHEREAS, capitalization terms used herein shall have the meanings ascribed to
such terms in the Agreement
NOW, THEREFORE, the parties agree to modify the Agreement as follows:
Notwithstanding anything else contained in the Agreement or any Section of the
Agreement, it is hereby agreed that PictureTel is relieved of any obligation to
provide any form of guarantee for any less which IPNI may desire to enter into
now or at any time in the future.
1. In return for relieving PictureTel of its obligation to
provide lease guarantees, it is agreed that the Agreement is
modified as follows:
a. Section VIII and any and all references in the
Agreement to PictureTel's right to purchase IPNI
Series A Preferred Stock or other capital stock are
hereby terminated. Simultaneously with the execution
of this Amendment No. 2, PictureTel has surrendered
for cancellation the warrant issued to PictureTel
pursuant to Section VIII (and Exhibit D) of the
Agreement and IPNI has issued to PictureTel a warrant
(the "New Warrant") to purchase 997,750 shares of
IPNI Series A Preferred Stock at an exercise price of
$0.01 per share, or, in conjunction with an initial
public offering of common stock by IPNI, the New
Warrant shall be exercisable for an equivalent number
of shares of common stock at the same exercise price
per share (subject to adjustment as provided in the
New Warrant).
b. PictureTel's potential rights to receive warrants to
purchase additional shares of IPNI Common Stock under
Sections VIII(a)(1) and (2) and VII(d), and elsewhere
in the Agreement, are hereby terminated. PictureTel's
preemptive rights under Section VIII(a)(3) of the
Agreement are hereby terminated.
c. The obligation of IPNI to have a PictureTel
representative elected to the IPNI board of directors
as provided for in Section VIII(c)(2) and Exhibit F
(Voting Agreement) to the Agreement is hereby
terminated. Notwithstanding the foregoing, IPNI may
request that a PictureTel representative continue to
serve and/or stand for election for the IPNI board of
directors.
d. PictureTel's right to audit the financial records of
IPNI as provided in Section VIII(f) of the Agreement
is hereby terminated.
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e. The obligation of IPNI to maintain a Technology
Escrow Account as provided for in Section VIII(g) and
XVIII(a), Exhibit H, and elsewhere in the Agreement,
is hereby terminated.
f. The obligations of IPNI to lease equipment and to
maintain a Cash Flow Account as provided for in
Sections III(a), (c) and (d), Section XVIII(a) and
Exhibit G, and elsewhere in the Agreement, are hereby
terminated.
g. PictureTel's right to review and approve Client
Contracts and modifications thereto as provided for
in Sections VI and IX (and elsewhere) in the
Agreement is hereby terminated.
h. The obligation of IPNI not to use videoconferencing
products from any entity other than PictureTel as
provided for in Section IX(c) and (d) of the
Agreement (or elsewhere in the Agreement) is modified
to read in its entirety as follows: "Until December
31, 1999, IPNI shall not use, in production units,
videoconferencing products of any entity other than
PictureTel."
i. PictureTel's right of "First Refusal" as provided for
in Section IX(e) of (and elsewhere in) the Agreement
is hereby amended to read in its entirety as follows:
"until June 30, 2000, IPNI agrees that it will not
purchase physician videoconferencing equipment from
any entity until it has given Picture a fair
opportunity to bid and compete for said need;
provided that PictureTel then offers equipment
comparable to the types of equipment then sought by
IPNI."
j. The obligations of IPNI not to dismantle and/or
market the PictureTel components set forth in Section
VI(e) of the Agreement are terminated.
k. Product pricing will be provided by PictureTel on
comparable discount levels as currently received.
l. Article XXII is hereby deleted.
m. It is acknowledged that, in addition to the above
amendments, Section I through VII, inclusive, of the
Agreement related only to the Pilot Program or to
other matters that are no longer in effect or
applicable, and are accordingly hereby deleted from
the Agreement.
2. In the event of any conflict between the terms of the
Agreement and any Exhibit thereto and this Amendment No. 2,
the terms and conditions of this Amendment No. 2 shall
control. Any term of the Agreement not modified by this
Amendment No. 2 shall remain unaltered. Each party agrees to
enter into such other amendments to existing documents and
agreements referenced to in this Agreement No. 2 as are
reasonably necessary to implement the changes contemplated by
this Amendment No. 2.
3. This Amendment No. 2 shall be effective immediately upon (I)
the consummation by IPNI of an initial public offering that
results in gross proceeds to IPNI of at least $15 million or
(ii) June 30, 2000 if no IPO shall have been consummated prior
to that time; provided, however, that if IPNI requests that
PictureTel provide lease guarantees prior to the times set
forth in (I) or (ii) above and PictureTel provides such
guarantees, this Amendment No. 2 shall be null and void and
the terms of the Agreement shall prevail.
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Amendment No. 2 on their behalf
effective this ______ day of August, 1999.
PictureTel Corporation iPhysician Net Inc.
By:____________________ By:_______________________
Its:___________________ Its:______________________
Date:__________________ Date:____________________
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