CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.36
AMENDMENT NUMBER 1 TO INTERACTIVE MARKETING AGREEMENT
-----------------------------------------------------
This Amendment (this "Amendment") dated as of April 19, 2000 (the
"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 ("MP" or "Autoweb"), a DELAWARE corporation, with offices at 0000
Xxx Xxxxxx, Xxxxx Xxxxx, XX 00000, and shall amend that certain Interactive
Marketing Agreement (the "Agreement") dated June 30, 1999, by and between AOL
and MP. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Agreement.
INTRODUCTION
------------
1. The Parties have reviewed the performance of the relationship created
pursuant to the Agreement and have now desire to expand the relationship
further in accordance with the Terms of this Amendment.
2. Except as specifically amended by this Amendment, the Parties desire that
the Agreement remain in full force and effect.
TERMS
-----
A. DEVELOPMENT AND INTEGRATION OF NEW PRODUCTS.
-------------------------------------------
A.1 Research & Decision Guides.
--------------------------
A.1(a) Contemporaneous with the execution of this
Amendment, the Parties shall execute and deliver a
Confidential Technology and Data License Agreement
(the "Technology and Data License Agreement") in
the form of Exhibit C attached hereto. In the event
of any conflict between the terms of this Agreement
and the terms of Exhibit C, the terms of Exhibit C
shall control. Pursuant to the terms of the
Technology and Data License Agreement, MP will work
with AOL to integrate the licensed data (the
"Licensed Data") into AOL's PersonaLogic automobile
decision guide (the "PL Decision Guide"), as more
fully described in Schedule 1. MP covenants that it
will provide AOL during the Term with all additions
to, expansions or refinements of, or enhancements
to the Licensed Data for no additional cost.
A.1(b) For the duration of the Term, AOL hereby grants MP
a non-exclusive license to distribute an MP-branded
version of the PL Decision Guide as designated by
AOL on MP's generally available web site, but MP
may neither (i) sublicense or assign any of its
rights in such PL Decision Guide to, nor (ii)
distribute such PL Decision Guide with the products
of, any other third party. AOL will license to MP
for use on its generally available web site any
proprietary software necessary to support such PL
Decision Guide. In the event that MP fails to
comply with the requirements of this Section
A.1(b), AOL may, upon written notice, revoke the
license granted hereunder and the other provisions
of the Agreement shall continue in full force and
effect.
A.2 Configuration & Comparison. Contemporaneous with the execution
--------------------------
of this Amendment, the Parties shall execute and deliver the
Technology and Data License Agreement referenced above.
Pursuant to the terms of and as set forth in the Technology
and Data License Agreement, MP will develop and License to
AOL the Technology specified in the Technology and Data
License Agreement (the "Licensed Technology"), provided,
however, that AOL may use any or all of the Licensed
Technology at its option and shall not be required to use
all of such Licensed Technology. MP covenants that it will
provide AOL during the Term with all
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
additions to, expansions or refinements of, or enhancements
to the Licensed Technology for [**].
A.3 Buying Service.
--------------
A.3(a) As more fully described in Schedule 1, MP shall
create a customized version of its buying service
(the "Buying Service") which will be seamlessly
integrated with the PL Decision Guide, the
Configuration and Comparison services and other
areas of the AOL Network as mutually agreed by the
Parties. The Buying Service will provide AOL Users
with the best available pricing and services and in
no way will disadvantage AOL Users. AOL shall own
all AOL-specific customization and MP shall have no
right to assign or transfer any rights to such
customization to any third party. No [ ** ] shall
be referenced or promoted (i) within the Promo
Content of any Promotion or (ii) within the first
screen of the Buying Service linked to any
Promotion.
A.3(b) As more fully described in Schedule 1, the Buying
Service will be hosted and managed by MP and will
be co-branded according to AOL's standard co-
branding requirements, including without
limitation, co-branded URL, headers and footers.
The Buying Service shall be a "cul-de-sac" area of
the Affiliated MP Site. MP shall provide navigation
back to the AOL Network in a manner reasonably
acceptable to AOL and shall not contain navigation
to other areas of the Affiliated MP Site or any
third party site (other than through advertising or
integrated auto-related transaction service links
(e.g., financing, insurance or warranty offers)).
A.3(c) Subject to AOL's advertising policies, MP will
control the advertising and commerce opportunities
on the Buying Service; provided, however, that no
advertisements in any category for which AOL has an
exclusive relationship shall be included within the
first or second level screens of the Buying Service
(i.e., must be at least two "clicks" down into the
Buying Service). Without AOL's prior written
approval, MP will not, within the Buying Service,
promote any original equipment manufacturer ("OEM")
in a manner greater than it promotes any other OEM
(i.e., conquesting) or allow for conquesting by
OEMs of other OEMs with whom AOL has entered into
an agreement. Notwithstanding the foregoing, MP
will integrate specified AOL partners into the AOL
Auto Channel, including without limitation, those
entities listed on Schedule 2.
A.4 Product Integration and Requirements.
------------------------------------
A.4(a) Product Requirements. All initial products for the
---------------------
AOL Properties shall meet the relevant requirements
set forth on Schedule 1. AOL and MP will meet at a
mutually agreeable location, as appropriate, to
discuss and define all new product requirements for
the AOL Properties on an ongoing basis. In the
event that they identify any new licensing or
development opportunities, the Parties will discuss
in good faith the terms of such licensing or
development.
A.4(b) Branding. As more fully described in Schedule 1, the
--------
Configuration and Comparison pages (collectively,
the "Ingredient Branded Areas") developed and
hosted by MP and displayed on the AOL Properties
will be branded employing an ingredient branding
approach. AOL will be prominently branded and MP
branding will be present on all such pages (e.g.,
"Powered by Autoweb") above the fold in overall
prominence consistent with the
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
ingredient-branding requirements included as
Exhibit E hereto. Pages hosted by or provided by a
third party shall incorporate branding for such
third party. Content used throughout any co-branded
areas may include attribution by using the
providing party's name or logo. The Parties will
mutually agree upon appropriate branding for such
third party. To the extent such communications are
permitted under the Agreement, all marketing
communications from MP to AOL Users (i.e., emails,
etc.) will be co-branded with AOL and MP. MP will
design each page within the Ingredient Branded
Areas based on the AOL design guideline templates
and ingredient-branding requirements. AOL will have
design approval rights for user interface elements
and all pages. AOL shall have the right to change
or modify its design guideline templates and
ingredient-branding requirements at any time and
from time to time during the Term; provided,
however, that notwithstanding such change or
modification, AOL shall not have the right to (i)
alter or modify the content of MP's proprietary
logos or marks or (ii) reduce the overall
prominence of MP's branding within the Ingredient
Branded Areas. Buying Service pages will be co-
branded according to AOL's standard co-branding
requirements for partner pages.
A.5 Advertising. AOL will sell and serve all advertising,
-----------
revenue-generating, and promotional positions (including
sponsorships) in all Ingredient Branded Areas. MP may not
incorporate or link from the Ingredient Branded Areas to any
promotional, advertising, sponsorship or otherwise
commercial elements without AOL's prior written approval,
and in no event shall sell or serve advertising in the
Ingredient Branded Areas.
A.6 Production and Hosting. Subject to AOL's discretion, AOL shall
----------------------
host the following pages: PL Decision Guide pages, static
navigation pages and content pages. MP will host all pages
of the Ingredient Branded Areas and the Buying Service. MP
will provide AOL with an acceptable 24x7 technical support
plan. MP will optimize the performance of the Ingredient
Branded Areas and the Buying Service for integration
throughout the AOL Properties. MP will provide, maintain,
and support all necessary software and hardware. All pages
within the Ingredient Branded Areas developed by MP will be
hosted under an AOL domain name (i.e., XxxxXxx.XXX.xxx). MP
will modify links within such pages to re-circulate users to
the AOL Properties. MP will ensure that all AOL Users in the
Ingredient Branded Areas will not be able to access any
links to MP's generally available Web site. Hosting may be
migrated to AOL upon the mutual agreement of the Parties.
A.7 Customization. MP will customize throughout the AOL Properties
--------------
as follows:
A.7(a) Within the Buying Service and Ingredient-Branded
Areas, MP shall provide continuous navigational
ability for AOL Users to return to an agreed upon
point on the applicable AOL Property. In addition,
MP shall provide links back to AOL-designated
points in the AOL Network from within each
particular tool or functionality within the Auto
Channel.
A.7(b) Upon AOL's reasonable and appropriate request, MP
shall use AOL's tools and technology for chat,
message boards, Quick Checkout, Search and such
other tools and technology as the Parties may
mutually agree. In the event that the addition of
such tools and technology would require MP to incur
material costs of installation, AOL shall reimburse
MP for time and material costs in accordance with
Section E below.
A.8 User Registration. If AOL Users are required to register to
------------------
access certain features within the Ingredient Branded Areas,
such registration processes will be seamlessly
integrated with AOL's "universal Registration" or "SNAP"
system (or such other system developed by AOL), shall be
subject to AOL's reasonable approval and be consistent with
AOL's then-current privacy policy. In the event that such
integration would require MP to incur material costs of
development, AOL shall reimburse MP for the cost of time and
materials in accordance with Section E below, unless MP
provides such integration for any other interactive Service
A.9 Recording of Traffic; Domains and URL's. All pages of the
-------------------------------------------
Buying Service and the Ingredient Branded Areas will be
served from an XXX.xxx domain with the following URL:
XxxxXxx.XXX.xxx. MP will report traffic and click-through
data according to AOL third party reporting guidelines. To
the maximum extent available MP and AOL shall cause third
party reporting agencies to mutually record unique visitor
traffic and page views to allow for both Parties to receive
traffic credit.
B. OEM ACCOUNTS; CUSTOM DEVELOPMENT.
--------------------------------
B.1. AOL will lead sales efforts to all auto manufacturers as
such efforts pertain to the AOL Properties. Sales to those
accounts named in Schedule 2 may consist of co-branding with
the OEM the functionality that exists in the Ingredient
Branded Areas, as set forth in Schedule 1 and subject to the
Technology and Data License Agreement; provided that MP
shall receive branding attribution of prominence consistent
with Exhibit E and provided that such co-branding with the
OEM shall not include sublicensing of any licensed materials
for use on the OEM's web site. MP will host all such pages.
B.2. With respect to the customization or enhancement of the
Licensed Technology or additional servers or programming
required to implement the sales efforts by AOL to OEMs
described above, MP shall be entitled to reimbursement for
time and materials in accordance with Section E below.
Unless the Parties shall otherwise agree, in the event that
AOL reimburses MP for all costs of time and materials
incurred by MP in developing such enhancements or
customizations, AOL shall own and MP shall have no rights
in, including, without limitation, the right to use or
convey, any such enhancements or customizations. In the
event that AOL requests that MP develop new functionality
(as distinct from the enhancements or customizations of the
Licensed Technology referenced above), the terms of such
development shall be on an as negotiated basis between the
Parties consistent with Section E below.
C. FINANCIAL SERVICES PARTNERS. AOL financial services partners identified
---------------------------
in Schedule 3 will be integrated in the Finance, Insurance, and
Warranty portions of the Ingredient Branded Areas for purposes of
promoting their loan, lease, insurance and warranty products. AOL
reserves the right to sign deals with additional financial service
partners and update Schedule 3 on an ongoing basis. MP will undertake
efforts required to integrate these additional partners into the
automotive offering, as specified by AOL. MP will be under no
obligation to integrate AOL category partners into the MP Buying
Service or Affiliated MP Site. MP shall be entitled to reimbursement
for time and materials required in connection with its performance
under this Section C in accordance with Section E below.
D. BUYING SERVICE PARTNERS. MP will undertake efforts required to
-------------------------
integrate AOL buying channel partners, including, without limitation,
those listed on Schedule 4, which schedule AOL may update from time
to time in its discretion, into the AOL Auto Channel, including,
without limitation, into the Ingredient Branded Areas, as specified
by AOL. MP shall be entitled to reimbursement for time and materials
required in connection with its performance under this Section D in
accordance with Section E below.
E. TIME AND MATERIALS. To the extent specifically required under the
------------------
terms of this Amendment, AOL will reimburse MP for ongoing work
product and deliverables not specified in Schedule 1 in accordance
with the follow-ing: prior to commencement of work for which
MP intends to seek reimbursement, MP shall present AOL with a
detailed proposal for determining the measure of reimbursable items.
If AOL shall accept such proposal in writing prior to the
commencement of such work, AOL shall reimburse MP in accordance with
the terms of such proposal. If AOL does not accept in writing such
proposal, Autoweb shall be under no obligation to perform the
services outlined in said proposal.
F. ROLLOUT SCHEDULE. MP shall deliver the Licensed Data to AOL as
----------------
required under Section A of this Amendment within [ ** ] of the
Amendment Date. MP shall launch the Buying Service on or before
[ ** ]. MP shall deliver to AOL beta versions of the Licensed
Technology required under Section A.2 above on or before [ ** ] and
final versions of such deliverables on or before [ ** ]. The above
time frames are based on limited knowledge of AOL systems and
platforms. As a result, these estimates are subject to certain
dependencies, including the ability to quickly interface to and/or
integrate with the AOL platforms, timely access to developmental
personnel familiar with such platforms, timely access to AOL
personnel to assist in defining development and architecture, and
timely access to documented AOL code and dually conversant personnel.
G. USER DATA. AOL and MP will jointly and severally own all end user
---------
data collected by MP in conjunction with the use of the Ingredient
Branded Areas. MP will not sell or provide any AOL User information
(e.g., names and email addresses) to a third party for any purpose,
without the written consent of AOL.
H. CUSTOMER SERVICE. MP shall maintain a level of customer service and
----------------
responsiveness as AOL shall reasonably request. At a minimum, MP
shall respond promptly to any AOL request for assistance (e.g., fixes
to the Licensed Technology) and, if such request relates to a mission
critical matter, endeavor to completely address AOL's request within
24 hours or such shorter period of time if the circumstances so
demand.
I. CONTINUED POINTERS. Upon the completion of the Term, for a period of
------------------
[ ** ] (the "Continued Link Period"), if AOL elects to (a) promote
one or more "pointers" or links from AOL to the Affiliated MP Site
and (b) use MP's trade names, trademarks and service marks in
connection with such promotion. During the Continued Link Period, MP
shall pay to AOL on a quarterly basis within [ ** ] following the end
of the quarter in which such amounts were generated, [ ** ] for each
AOL Purchase Request submitted during such Continued Link Period.
J. AFFILIATE MARKETING PROGRAM. At MP's option, MP shall participate in
---------------------------
the AOL Affiliate Marketing program and abide by the terms and
conditions of the AOL Affiliate Marketing Program Agreement. MP's
participation in the AOL Affiliate Marketing program shall require
that AOL will be prominently featured on the Xxxxxxx.xxx website. AOL
will compensate MP for each Qualified New AOL Member (as defined
hereafter) attained through these promotions. A Qualified New AOL
Member is a member of AOL acquired through customer acquisition
efforts pursuant to this Agreement, who, (i) registers for the AOL
Service during the Term of the Agreement, using MP's special
promotion identifier, and (ii) who pays the then-standard fees
required for membership to the AOL Service through at least two
consecutive billing cycles.
K. PREMIER PARTNER OPPORTUNITY AND QUARTERLY PRODUCT MEETINGS. MP will
----------------------------------------------------------
provide AOL during the Term with all additions to, expansions or
refinements of, or enhancements to the Licensed Data and Licensed
Technology. Additionally, MP shall (i) meet quarterly with AOL during
the Term to offer all generally available new products, if any, to
AOL and, (ii) subject to MP's current agreements with third parties,
make such products available to AOL on the same or equivalent terms
(i.e., at the same cost) paid by other similarly situated MP partners
("Non-Discriminatory Terms"). Additionally, without limiting the
generality of the foregoing, subject to the signing of a licensing
agreement between MP and AOL, MP shall license to AOL on Non-Discrimi-
natory Terms: (a) new products that it licenses to [ ** ] or its
successor; (b) the "My Auto" product; and (c) new products that are
offered to two or more Interactive Services.
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
L. CARRIAGE.
--------
L.1. AMENDMENT OF CARRIAGE PLAN. Exhibit A of the Agreement shall
--------------------------
be amended and restated in its entirety to read as set forth
on Exhibit A of this Amendment.
L.2. IMPRESSIONS COMMITMENT. The first sentence of Section 1.2 of
-----------------------
the Agreement is hereby deleted and replaced in its entirety
with the following:
During the Initial Term, AOL shall deliver [ ** ]
Impressions to MP through the Promotions (the
"Impressions Commitment").
The Parties agree and acknowledge that as of the Amendment
Date { ** ] Impressions have been delivered by AOL under the
Agreement.
L.3. FIXED PLACEMENT. Notwithstanding any provision of the
-----------------
Agreement or this Amendment to the contrary:
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 shall not be permanent. 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.
L.3(b) Prior to the date which is [ ** ] days after AOL's
receipt of a Permanent Placement Termination
Notice, MP shall be required to pay AOL on the next
Payment Date as additional consideration an amount
equal to (x)(i) the Product Page Impressions
Overdelivery Amount delivered between such Payment
Date and the immediately preceding Payment Date,
divided by (ii) one thousand, multiplied by (y)
[ ** ].
L.3(c) In the event that MP desires that AOL discontinue
its maintenance of the Product Page Impressions as
a permanent placement, MP shall deliver to AOL a
notice to such effect referencing this Section
L.3(c) (a "Permanent Placement Termination
Notice"). Ninety (90) days after receipt of such
Permanent Placement Termination Notice, AOL shall
have no obligation to reserve Product Page
Impressions for MP in excess of the Minimum
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
Delivery Number and MP shall have no further
obligation to pay for any Product Page Impressions
Overdelivery Amount; provided that AOL shall
reserve at all times during the Term the right to
substitute Product Page Impressions for other
Impressions reflected on Exhibit A (i.e., AOL may
make-up underdelivery in non-Product Page
Impressions with additional Product Page
Impressions and, in such event, MP shall not be
required to pay additional compensation solely with
respect to these additional Product Page
Impressions).
M. PAYMENTS.
--------
M.1. PAYMENTS PRIOR TO AMENDMENT DATE. Prior to the Amendment
--------------------------------
Date the Parties agree and acknowledge that, pursuant to the
requirements of Section 3.1 of the Agreement, MP has paid to
AOL [ ** ] (the "Paid-To-Date Amount"); which amount relates
to carriage scheduled to be delivered through [ ** ]. The
Parties agree and acknowledge that [ ** ] of the Paid-To-
Date Amount (the "Unaccrued Amount"), shall be applied by
AOL to the payment required to be delivered by MP under
Section M.3(a).
M.2. EFFECT ON ORIGINAL PAYMENT SCHEDULE. In consideration of the
------------------------------------
additional undertakings set forth in this Amendment, the
Parties have agreed to create a new consideration and
payment schedule under the Agreement. Accordingly, no
further amounts shall be payable under Section 3.1 of the
Agreement and the last sentence of such section shall be of
no further force or effect.
M.3. GUARANTEED PAYMENT. In consideration of AOL's obligations
-------------------
under the Agreement, as amended by this Amendment, MP shall
pay to AOL (in addition to the Paid-To-Date Amount and the
amounts due under Sections I, L.3 and O of this Agreement) a
guaranteed payment of [ ** ] payable as follows:
M.3(a) The total amount due to AOL as of the Amendment
date shall be [ ** ] and shall be payable as
follows: [ ** ] shall be payable on the Amendment
Date and AOL shall apply the entire Unaccrued
Amount as payment for the remainder of such amount
due, and
M.3(b) [ ** ] shall be payable on each of [ ** ] (each a
"Payment Date").
N. TERM. Section 4.1 of the Agreement is hereby deleted and replaced in its
----
entirety with the following:
4.1 TERM, RENEWAL, POST-TERM LICENSE.
--------------------------------
4.1.1 TERM. The initial term of this Agreement (the "Initial Term")
----
shall commence on the Effective Date and shall terminate on
the [ ** ] of the Amendment Date
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
(unless earlier terminated as permitted herein) (the Initial
Term plus any extension or renewal hereof shall be referred
to as the "Term").
4.1.2 POST-TERM LICENSE. Upon the termination of this Agreement
-----------------
for any reason other than termination by MP as a result of
AOL's uncured material breach of this Agreement (including
but not limited to Exhibit C hereto), MP shall permit AOL to
continue to license all intellectual property licensed
pursuant to this Agreement (including without limitation the
Licensed Data and all functionality supplied in connection
with the Buying Service) for a period of [ ** ] (or such
shorter period as AOL shall determine) (the "Post-Term
License Period"), provided that AOL shall pay to MP from the
date of termination of the Agreement and continuing until
the termination of the Post-Term License Period, a monthly
license fee in advance of [ ** ] per month. Notwithstanding
any provision of this Agreement to the contrary, this
Section 4.1.2 shall survive any termination of this
Agreement.
O. REVENUE SHARING. During the Term, MP shall pay AOL, on a quarterly basis
---------------
within [ ** ] days following the end of the quarter in which such amounts
were generated, the Bounties set forth on Schedule 5 upon the attainment
of the Performance Hurdle set forth therein.
P. AMENDMENT OF SECTION 1.1 OF THE AGREEMENT. Section 1.1 of the Agreement is
-----------------------------------------
hereby deleted and replaced in its entirety with the following:
1.1 AOL PROMOTION OF AFFILIATED MP SITE; FLEXIBILITY OF PROMOTIONS.
--------------------------------------------------------------
AOL shall provide MP with the promotions for the AOL Jump Pages
and the Affiliated MP Site described on Exhibit A attached
hereto (collectively referred to herein as the "Promotions").
AOL reserves the right (at its sole discretion) to (i)
substitute for the Promotions to be delivered in a particular
Level other promotions (in the same Level) in the same or
different areas of the AOL Properties, and (ii) substitute
Impressions in one Tier for those in another Tier at an exchange
ratio taking into account the Relative Weighted Value of the
Promotions substituted. In addition, AOL reserves the right to
redesign or modify the organization, structure, "look and feel,"
navigation and other elements of the AOL Network at any time. As
used in this Section 1.1, "Relative Weighted Value" of the
promotions and Impressions refers to the fact that, as
acknowledged and agreed by the Parties hereto and as evidenced
on the Switching Matrix included in Exhibit A hereto, the
Promotions described on Exhibit A hereto are not of equal value
but rather, in order of descending relative value from the most
to the least valuable, are categorized as follows: (a) Tier 1
(b) Tier 2, (c) Tier 3 and (d) Tier 4. In the event that the AOL
wishes to switch promotions to new inventory on the AOL Network,
or inventory not referenced on Exhibit A, the Parties shall
mutually and in good faith determine the appropriate tier for
such inventory.
Q. AMENDMENT OF AOL NETWORK DEFINITION. The last sentence of the definition
-----------------------------------
of "AOL Network" included in Exhibit B of the Agreement is hereby
deleted.
R. AMENDMENT OF EXHIBIT C OF THE AGREEMENT. Exhibit C of the Agreement shall
---------------------------------------
be amended and restated in its entirety to read as set forth on Exhibit B
of this Amendment.
S. AMENDMENT OF EXHIBIT D OF THE AGREEMENT. Exhibit D of the Agreement shall
---------------------------------------
be amended and restated in its entirety to read as set forth on Exhibit D
of this Amendment.
T. AMENDMENT OF EXHIBIT D-1 OF THE AGREEMENT. Exhibit D-1 of the Agreement
-----------------------------------------
shall be amended and restated in its entirety to read as set forth on
Exhibit D-1 of this Amendment.
U. EXHIBITS AND SCHEDULES. The exhibits and schedules identified in and
----------------------
attached to this Amendment are each incorporated into this Agreement and
are hereby made a part of this
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
Amendment. Except for Exhibit C hereto, in the event of a conflict
between the substantive provisions set forth above in body of this
Amendment (the "Main Provisions") and the exhibits incorporated into this
Amendment, the Main Provisions shall control. Terms and conditions of
Exhibit C control in the event of any conflict between such exhibit and
the Main Provisions. Schedules which are updated by AOL as permitted
hereunder shall supercede the previous schedule.
V. EFFECT ON AGREEMENT. Except as specifically amended by this Amendment,
-------------------
the Agreement remains in full force and effect.
(SIGNATURE PAGE FOLLOWS)
In witness whereof, the Parties have executed this Amendment as of
the date written hereinabove.
AMERICA ONLINE, INC.
By: /s/ XXXXX X. XXXXXXX
---------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: President, Business Affairs
---------------------------
XXXXXXX.XXX, INC.
By: /s/ XXXX XXXXXXX
---------------------------
Name: Xxxx Xxxxxxx
---------------------------
Title: Chairman & CEO
---------------------------
