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EXHIBIT 10.17
FIRST AMENDMENT OF CO-BRANDING AGREEMENT
THIS FIRST AMENDMENT OF CO-BRANDING AGREEMENT (the "Amendment"), entered into as
of February 6, 2001 ("Amendment Effective Date"), is by and between VerticalNet
LLC, a Delaware limited liability company having a principal place of business
at 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxx 00000 ("VerticalNet") and
Xxxxxxxx.xxx, Inc., a Delaware corporation, having a principal place of business
at 0000 Xxxxxx Xxxx, Xxx Xxxx, XX 00000 ("Neoforma").
RECITALS
A. WHEREAS, VerticalNet and Neoforma entered into a Co-Branding Agreement on
or about November 19, 1999 (the "Agreement").
B. WHEREAS, pursuant to the Agreement, VerticalNet is to, inter alia, promote
Neoforma Shop, Neoforma Plan and Neoforma Auction within certain of
VerticalNet's vertical trade communities.
C. WHEREAS, the Parties desire to amend the Agreement to change the operative
commercial terms and the Term of the Agreement.
THEREFORE, the Parties, intending to be legally bound, agree as follows:
1. AMENDMENT
1.1. Pursuant to Section 16.6 of the Agreement, Section 1.9 of the
Agreement shall be deleted in its entirety and replaced with the following
paragraph, which shall become part of the Agreement:
1.9 INITIAL TERM shall mean the Effective Date through December 31,
2000, unless earlier terminated pursuant to Section 11.
1.2 Pursuant to Section 16.6 of the Agreement, Sections 10.2 of the
Agreement shall be deleted in its entirety and replaced with the following
paragraph, which shall become part of the Agreement:
10.2 PROMOTIONAL FEES. In consideration of the performance by
VerticalNet of its obligation to promote the Neoforma Shop, Neoforma
Plan and Neoforma Auction under Section 8.2, Neoforma shall pay to
VerticalNet a promotional fee equal to $750,000, payable in four equal
quarterly and non-refundable installments of $187,500, with the first
installment payable on the Effective Date, the second installment
payable on the three month anniversary of the Effective Date, the
third installment payable on the six month anniversary of the
Effective Date, and the fourth and final installment payable on
December 1, 2000.
1.3 Pursuant to Section 16.6 of the Agreement, Section 11.1 of the
Agreement shall be deleted in its entirety.
2. OTHER OBLIGATIONS, RIGHTS, REPRESENTATIONS AND WARRANTIES
2.1 All other obligations, rights, representations and warranties set
forth in the Agreement remain unchanged and in full effect.
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2.2 Each of VerticalNet and Neoforma agree that nothing set forth herein
will relieve either VerticalNet or Neoforma from those provisions of the
Agreement that by the provisions of the Agreement are to survive termination of
the Agreement and that each will comply with its obligations under Section 11.3
("Upon Termination") of the Agreement.
2.3 Neither VerticalNet nor Neoforma shall publicly disclose the fact that
they have entered into this Amendment, or any of the terms, conditions or
provisions of this Amendment, except as may be required by any applicable law,
rule or regulation.
3. GENERAL
3.1 Capitalized Terms. All capitalized terms not defined herein shall have
the meaning ascribed to them in the Agreement.
3.2 Titles. The headings appearing at the beginning of the sections
contained herein have been inserted for identification and reference purposes
only and shall not be used to determine the construction or interpretation of
this Amendment. The nomenclature of the defined terms used herein shall only be
used for the construction of this Amendment, and are not to be used for any
other purpose, including, but not limited to, interpretation for accounting
purposes.
3.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. This Amendment shall
become binding when any one or more counterparts hereof, individually or taken
together, bear the signatures of both Parties. For the purposes hereof, a
facsimile copy of this Amendment, including the signature pages hereto, shall be
deemed an original.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives as of the dates set forth below.
VERTICALNET LLC XXXXXXXX.XXX, INC.
By: /s/ XXXXXXXXXXX X. XXXX By: /s/ XXXXXX XXXXXXXXXX
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Name: Xxxxxxxxxxx X. Xxxx Name: Xxxxxx Xxxxxxxxxx
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Title: VP, Legal Affairs Title: Chief Financial Officer
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Date: 2/7/01 Date: 2/6/01
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