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EXHIBIT 2
CERTAIN PORTIONS HAVE BEEN OMITTED BASED ON A REQUEST
FOR CONFIDENTIAL TREATMENT; OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION")
MARKETING AGREEMENT
BETWEEN
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.,
ADMINISTAFF, INC.,
ADMINISTAFF COMPANIES, INC.
AND
ADMINISTAFF OF TEXAS, INC.
DATED
MARCH 10, 1998
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AMEX: AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.,
a New York corporation.
AMEX Client: means any AMEX Customer that is a party to an AMEX PEO CSA
and is not a party to an ASF PEO CSA.
AMEX Customer: means any Business Entity that utilizes an AMEX product
or service (e.g., an American Express Corporate Card).
AMEX Indemnitee: AMEX, its parent, subsidiaries, affiliates, successors
and assignees, and their respective directors, officers, agents and
employees.
AMEX Lead: means: (a) any AMEX PEO Prospect that expresses to AMEX an
interest in the AMEX Product either in person, in writing, via
telephone or via the Internet (including, without limitation, accessing
any Web Site used by AMEX to describe, or solicit interest in, PEO
services); (b) any AMEX PEO Prospect that contacts ASF and indicates to
ASF that (1) such AMEX PEO Prospect is interested in purchasing, or
obtaining additional information regarding, the AMEX Product or (2)
such AMEX PEO Prospect is responding to an AMEX Product solicitation;
or (c) any Business Entity attending or participating in a joint
marketing activity as contemplated in Section 5(b).
AMEX Marketed PEO Prospect: means any AMEX PEO Prospect that: (a) AMEX
has specifically targeted regarding the Services or the AMEX Product
and with which AMEX has communicated by mail, telemarketing,
interactive media, direct sales force, seminars or otherwise; or (b)
has been referred by an AMEX business unit to ASF as being interested
in the AMEX Product; provided however, the status of AMEX Marketed PEO
Prospect shall cease when six months have lapsed from the later of the
Contact Date or the referral date.
AMEX PEO Prospect: means any AMEX Customer that is not a party to
either an ASF PEO CSA or an AMEX PEO CSA.
AMEX PEO CSA: means the agreement by which an AMEX Client engages ASF
to provide the AMEX Product to such AMEX Client.
***
Appointment: means the meeting of an AMEX Lead with an ASF salesperson
to discuss the Services.
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ASF: ASF DE, ASF COMP and ASF TX.
ASF Client: means any ASF Customer that is a party to an ASF PEO CSA
and is not a party to an AMEX PEO CSA.
ASF COMP: ADMINISTAFF COMPANIES, INC., a Delaware corporation.
ASF Customer: any Business Entity that engages ASF to provide PEO
services to such Business Entity in accordance with the terms of a
current and enforceable ASF PEO CSA.
ASF DE: ADMINISTAFF, INC., a Delaware corporation.
ASF Derivative Proprietary Work: proprietary interests in technology,
products or services that AMEX and ASF jointly develop that is an
improvement, enhancement, extension or derivative of ASF's preexisting
proprietary rights. The ASF Derivative Proprietary Work consists solely
of the improvement, enhancement, extension or derivative and will not
include the preexisting or underlying work.
ASF Indemnitee: ASF, its parent, subsidiaries, affiliates, successors
and assignees, and their respective directors, officers, agents and
employees.
ASF PEO CSA: the agreement by which ASF provides PEO services to ASF
Customers.
ASF TX: ADMINISTAFF OF TEXAS, INC., a Texas corporation.
ASF Referral: referral to AMEX for AEFA and TBS Services from past,
current and future customers of ASF.
Business Entity: any corporation, subchapter S corporation,
partnership, joint venture, trust, association, limited liability
company, sole proprietorship or un-incorporated organization engaged in
a commercial enterprise.
Business Records: business and financial records maintained by ASF that
detail the completeness and accuracy of the commissions paid to AMEX
and revenue related to embedded AMEX Products.
Change of Control: the occurrence of any of the following: ***
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***
Claim: any loss, damage, cost, expense, liability, and settlement,
including without limitation, any reasonable attorney fees and court
costs.
Client: includes AMEX Clients and ASF Clients.
Commission Report: A report which includes: (a) total number of AMEX
Clients; (b) AMEX Clients' names; (c) AMEX Clients' dates of
enrollment; (d) total number of worksite employees for each AMEX
Client; and (e) the related commissions due to AMEX.
Commissionable Client: Any AMEX Lead or AMEX Marketed PEO Prospect that
enters into an AMEX PEO CSA or ASF PEO CSA.
Competitor: ***
Contact Date: date of specific solicitation of the AMEX Product or
Services, including mail, telemarketing, direct or indirect sales
force, seminar and interactive e-mail.
CPR: the Center for Public Resources.
CSA: Client Service Agreement, as attached in Exhibit A.
Dedicated Staff: ASF sales personnel who: (a) are full-time salaried
employees of ASF; (b) have completed at least 30 days of sales training
in professional employer services; (c) and have at least 60 days
continuous sales experience of professional employer services with ASF;
and (d) only sell professional employer services.
Effective Date: March 10, 1998.
Embedded Products: certain AMEX products and services that are offered
to ASF clients and prospects in a seamless integrated manner embedded
in ASF's offering of Services.
Expiration Date: March 10, 2005 (including any renewal period as
provided).
Fifteen Month Period: first 15 months from the date of this Agreement.
Joint Work: any proprietary interests in technology, products or
services that is jointly developed by AMEX and ASF and is not an ASF
Derivative Proprietary Work. If the
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(3) Quality Standards: ASF covenants that when marketing the
Services to AMEX Leads, ASF will comply with the Quality
Standards listed in Exhibit B.
(4) Planning: ***
b. Joint Marketing Activities: AMEX and ASF agree to conduct joint
marketing activities (such as customized seminars) in order to generate
AMEX Leads, whereby ASF provides experts and marketing materials at
ASF's expense and AMEX generates attendees at AMEX's expense. ASF
covenants that when conducting joint marketing activities, ASF will
comply with the Quality Standards listed in Exhibit B. AMEX is
responsible for meeting expenses associated with the customized
seminars.
c. Training: In order to enable AMEX employees and/or customer service
representatives to generate leads successfully, ASF and AMEX will
arrange for education and training of the AMEX employees whose job
responsibilities include generating AMEX Leads, including TBS, AEFA,
Small Business Services, Corporate Services and Establishment Services
employees. ASF shall provide the education and training as AMEX
reasonably requests, and without any costs to AMEX, other than the
costs of facilities and general meeting expenses. The location of the
education and training will be determined based upon business
necessities. Each Party will be responsible for the out of pocket
expenses incurred by that Party in connection with the education and
training, including housing, lodging and travel associated with such
Party's employees. Neither Party will compensate the other Party for
lost employee time.
d. Toll-Free Number: ASF will support dedicated toll-free numbers to
receive inquiries from prospective AMEX Leads and AMEX Clients which
toll-free numbers shall be wholly-owned by AMEX. ASF shall pay all
costs associated with such toll-free numbers, including monthly
maintenance fees and usage charges. The toll-free number(s) for this
service shall not be used for any other service or any other
client/program without express written consent of AMEX. AMEX shall have
all rights in and to the toll-free number(s) upon termination of this
Agreement and at that time shall assume any and all costs associated
with these toll-free numbers after any deposits on them, paid by ASF
are refunded to ASF. AMEX shall have the right to retain and reuse the
toll-free number(s). AMEX shall have the right to approve ASF's
telecommunications requirements for marketing response to maximize best
efforts and professionalism. At AMEX's discretion, ASF will provide, at
its sole cost and expense, a dedicated toll-free dial transfer number
with priority handling to AMEX. For a period of one year from the
termination of this Agreement for any reason, ASF shall continue to
provide AMEX the dedicated toll-free dial transfer number. After one
year from the termination of this Agreement, AMEX
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shall be responsible for the cost and expense of such toll-free number,
and AMEX may use such number in its own discretion.
5. ASF ACTIVITIES:
a. Embedded Activities:
(1) Embedded Product: At AMEX's discretion, AMEX may require ASF
to embed the Required Embedding in the Services provided to
AMEX Clients or other existing or potential ASF Clients, and
ASF shall use all reasonable commercial efforts to integrate
the Required Embedding into a seamless offering of the
Services. After mutually agreeable terms to both Parties are
reached, ASF may embed in the Services other AMEX products,
including Small Business Services, Corporate Card, Business
Travel and Purchasing Card services. Any AMEX Embedded
Products will, at AMEX's discretion, be clearly identified
under the name and brand that AMEX designates. AMEX will use
reasonable efforts to customize the AMEX products, at AMEX's
expense, that will be embedded in the Services. As mutually
agreed by the Parties, ASF may collect payment on any and all
Embedded Products as part of the fee structure established
with a Client and shall remit any payments so collected to
AMEX within 25 days following the end of the month.
(2) Referral Activities: ***
(3) Review and Audit: If both Parties agree to embed other AMEX
products in addition to the Required Embedding with respect to
which ASF is due commissions, ASF shall have the audit rights
as agreed by the Parties with respect to any commissions owed
to ASF by AMEX.
b. Sales Force Commitment: ASF acknowledges that an adequate and properly
trained sales force is essential to the successful marketing of the
Services and agrees that ASF's undertaking to maintain such a sales
force is a prime consideration of AMEX for entering into and continuing
this Agreement. *** Both Parties agree to discuss in good faith any
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reasonable requests by the other Party to modify the guidelines. At no
time will the guidelines provide for a lower standard than internal
guidelines used by ASF with respect to other activities. ASF covenants
not to pay the Dedicated Staff less commission or different
compensation for selling the AMEX Product when compared to other
Services (including Services marketed through third party
arrangements).
6. CUSTOMER PROTECTION:
a. AMEX Customer Protection: ASF acknowledges that unnecessary risk would
be caused to AMEX if ASF solicited AMEX Customers outside this
Agreement or otherwise intentionally diluted AMEX's ability to provide
AMEX Leads to ASF. ASF's agreement, as detailed in this Section, to
protect AMEX from this risk is a prime consideration of AMEX for
entering into and continuing this Agreement. ASF will not knowingly
market any products or services to AMEX Customers other than under the
terms of this Agreement. ASF covenants:
***
b. ASF Customer Protection: AMEX acknowledges that unnecessary risk would
be caused to ASF if AMEX solicited ASF Clients outside this Agreement.
AMEX understands that
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to protect ASF from this risk is a prime consideration of ASF for
entering into and continuing this Agreement. AMEX will not knowingly
market another PEO's products or services to ASF Customers other than
under the terms of this Agreement. AMEX covenants:
***
7. FINANCIAL ARRANGEMENT:
a. Commission Revenues:
(1) ASF agrees to pay AMEX a commission based on ***
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***
(3) Payments shall be due and payable by ASF to AMEX ***
(the "due date") for *** commission.
(4) ASF shall pay interest at the rate of *** per annum on all
commissions paid after the due date.
(5) ASF shall deliver to AMEX the *** for each month together with
the payments required hereunder for such month.
(6) ***
b. ASF Referrals: ASF will provide AMEX with ASF Referrals. ***
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***
10. INDEMNIFICATION AND HOLD HARMLESS:
a. ASF DE, ASF COMP and ASF TX shall jointly and severally indemnify and
hold harmless AMEX and each AMEX Indemnitee from and against any
material Claim incurred by any AMEX Indemnitee which Claim arises out
of or in connection with: (1) the intentional or negligent act or
omission of ASF or its Agents in the course of the performance of ASF's
duties and obligations under this Agreement; (2) the failure of ASF or
its Agents, as the case may be, to comply with the terms of this
Agreement; (3) the failure of ASF (including without limitation its
Agents who perform on behalf of ASF hereunder) to comply with its
obligations under any and all laws, rules, or regulations applicable to
ASF, its Agents or the Services, as the case may be; (4) the marketing,
promotion, sale or provision of any services offered by ASF (other than
the Embedded Products provided by AMEX), including without limitation
any federal, state or local taxes, penalties or interest, and
liabilities to employees of ASF (including liabilities based upon joint
employer or other theories); or (5) any state or local taxing authority
which relates to ASF Services excluding any embedded AMEX products.
Each AMEX Indemnitee seeking indemnification under this Agreement shall
give prompt notice to ASF along with such AMEX Indemnitee's request for
indemnification, of any Claim for which it is seeking indemnification.
The Parties understand and further agree that no settlement of an
indemnified Claim shall be made by an AMEX Indemnitee without the
concurrence of ASF. ASF shall control the settlement or defense of any
Claim; provided, however, that the AMEX Indemnitee may, at its cost,
engage its own attorneys. The AMEX Indemnitee will fully cooperate with
ASF to enable it to fulfill its obligations with respect to such Claim.
All of the provisions in this Section 10(a) shall survive the
termination of this Agreement.
b. AMEX shall indemnify and hold harmless ASF and each ASF Indemnitee from
and against any material Claim reasonably incurred by any ASF
Indemnitee which Claim arises out of or in connection with the
intentional or negligent act or omission of AMEX in the course of the
performance of AMEX's duties and obligations under this Agreement.
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answer or consent seeking reorganization or release under the
Federal Bankruptcy Act, or any other applicable Federal or
state law, or the consent by the other Party to the filing of
any such petition or the appointment of a receiver,
liquidator, assignee, trustee, or other similar official of
the other Party or of any substantial part of its property, or
the making by the other Party of an assignment for the benefit
of creditors, or the admission in writing by the other Party
of an assignment for the benefit of creditors, or the
admission in writing by the other Party of its inability to
pay its debts generally as they become due or the taking of
corporate action by the other Party in furtherance of any such
actions; or (b) if, within 60 days after the commencement of
an action against the other Party seeking any bankruptcy,
insolvency, reorganization, liquidation, dissolution or
similar relief under any present or future law or regulation,
such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the
business of the other Party stayed, or if the stay of any such
order or proceeding shall thereafter be set aside; or if,
within 60 days after the appointment without the consent or
acquiescence of the other Party of any trustee, receiver or
liquidator or similar official of the other Party, or of all
or any substantial part of the property of the other Party,
such appointment shall not have been vacated.
b. ***
c. ***
21. MISCELLANEOUS:
a. Headings: Headings stated in this Agreement are for convenience of
reference only and are not intended as a summary of such sections and
do not affect, limit, modify, or construe the contents thereof.
b. 21st Century: No later than September, 1998, ASF shall: (1) manage and
manipulate data in connection with the Services involving all dates
from the 20th and 21st centuries without functional or data abnormality
related to such dates; (2) manage and manipulate data in connection
with the Services involving all dates from the 20th and 21st centuries
without inaccurate results related to such dates; (3) have user
interfaces and data fields in connection with the Services formatted to
distinguish between dates from the 20th and 21st centuries; and (4)
represent all data in connection with the Services to include
indications of the millennium, century, and decade as well as the
actual year.
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Quality standards defined below will be aggregated through weighted measurement
to determine overall aggregate quality performance levels attained during each
quarter.
***
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