EXHIBIT 10.1
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Amendment Number 3 to Interactive Marketing Agreement
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This Amendment Number 3 to Interactive Marketing Agreement (this "Third
Amendment") dated as of March 1, 2002 (the "Third Amendment Date"), is by and
between America Online, Inc. ("AOL"), a Delaware corporation, with offices at
00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000, and Xxxxxxx.xxx, Inc. ("MP" or
"Autoweb"), a Delaware corporation, with offices at 00000 XxxXxxxxx Xxxx.,, XX
00000, and shall amend that certain Interactive Marketing Agreement dated June
30, 1999, by and between AOL and MP (the "Original Agreement"), as amended by
that certain Amendment Number 1 to Interactive Marketing Agreement, by and
between AOL and MP dated as of April 19, 2000 (the "First Amendment") and that
certain Amendment Number 2 to Interactive Marketing Agreement by and between AOL
and MP dated as of April 1, 2001 (the "Second Amendment").
The Original Agreement as amended by the First Amendment and Second Amendment is
hereinafter referred to as, the "Existing Agreement". Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
Existing Agreement.
The Existing Agreement as amended by this Third Amendment is hereinafter
referred to as the "Agreement".
INTRODUCTION
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1. The Parties have reviewed the performance of the relationship created
pursuant to the Existing Agreement and desire to amend the relationship
further in accordance with the Terms of this Third Amendment.
2. Except as specifically amended by this Third Amendment, the Parties desire
that the Existing Agreement remain in full force and effect.
TERMS
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A. PRODUCT PAGE IMPRESSIONS. Section L.3(a) of the Agreement is hereby amended
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and restated in its entirety to read as follows:
L.3(a) The Impressions set forth on Exhibit A which are designated on such
exhibit as Product Page Impressions shall be permanent placements on
the new car product pages (the "Product Pages") and shall not be
subject to replacement by AOL as otherwise permitted under Section
1.1 of the Agreement; provided that this provision shall have no
affect on AOL's right to redesign any part of the AOL Network.
Accordingly, AOL shall be required to deliver without substitution
during any contract year the number of Impressions set forth on
Exhibit A (the "Minimum Delivery Number"). Notwithstanding the
attainment of the Minimum Delivery Number, until MP shall deliver
the notice required under Section L.3 (c) below, AOL shall continue
the placements designated on Exhibit A as "Product Page Impressions"
as a permanent placement; provided that notwithstanding the
foregoing, MP agrees and acknowledges that the [*] Product Page
Impressions, [*] Product Page Impressions, [*] Product Page
Impressions, and [*] Product Page Impressions shall not be permanent
(collectively, the "Non-Permanent Product Pages"), and AOL shall
have no obligation to deliver Impressions on any Non-Permanent
Product Page. The number of Product Page Impressions delivered in
any contract year in excess of the Minimum Delivery Number shall be
referred to herein as the "Product Page Impressions Overdelivery
Amount". As used
herein, a contract year of this Agreement shall be the period
between the Amendment Date and the first anniversary date of the
Amendment and successive twelve month periods during the Term.
B. PAYMENTS.
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B.1. Guaranteed Payment. Recognizing that each of the payments payable by
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MP under Section M.3(b) of the Existing Agreement as of [*] and [*]
have been reduced by mutual agreement of the Parties to [*] Dollars
[(*)], AOL acknowledges that as of the Third Amendment Date, MP has
paid all amounts due and payable under the Existing Agreement prior to
the Third Amendment Date. The portion of Guaranteed Payment as set
forth in Section M.3(b), which would otherwise be payable by MP to
AOL, but which has not become payable to AOL by MP prior to the Third
Amendment Date, is hereby amended and the amount payable with respect
to such unpaid portion of guaranteed payment set forth in such Section
M.3(b) shall be reduced by substituting in lieu thereof a guaranteed
payment of [*] Dollars [(*)], which shall be payable by MP to AOL as
follows: [*] Dollars [(*)] shall be payable on each of [*], [*], [*],
[*], [*] and [*] (each a "Payment Date").
C. REDUCTION OF IMPRESSIONS COMMITMENT. In consideration of the reductions in
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the Guaranteed Payments required under the Agreement, AOL shall have the
right to reduce the Impressions Commitment by a number of Impressions equal
to: (i) total number of Impressions eliminated, multiplied by the cost of
such Impressions (calculated using cost-per-thousand (CPM) for such
Impressions in effect as of the date of the most recent carriage plan under
the Agreement); provided, however that the value of the reduction of
Impressions as determined by reference to this Section C shall not exceed
the amount of the reduction in the Guaranteed Payments accomplished by
Section B.1 of this Third Amendment, which, for the avoidance of doubt, is
[*] Dollars [(*)]. The Parties agree and acknowledge that the effective CPM
for Product Page Impressions is [*] dollars [(*)].
D. EFFECT ON AGREEMENT. Except as specifically amended by this Third
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Amendment, the Existing Agreement remains in full force and effect.
(signature page follows)
In witness whereof, the Parties have executed this Third Amendment as of
the date written hereinabove.
AMERICA ONLINE, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: SVP, Business Affairs and Development
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XXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: EVP and CMO
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