EXHIBIT 10.9
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") is entered into by and between
Infoseek Corporation, a corporation duly organized under the laws of California,
with its principal place of business at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000-0000, hereinafter referred to as "Infoseek", and xxxxxx.xxx,
Inc., a corporation organized under the laws of the State of Delaware with its
principal place of business at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxx 00000, hereinafter referred to as "Content Partner" or "XxXxxx.xxx". ABC
News/Starwave Partners (which operates the XXXXxxx.xxx U.S. Internet site
referred to herein a "XXXXxxx.xxx") and ESPN/Starwave Partners (also referred to
as "EIV") (which operates the XXXX.xxx U.S. Internet site referred to herein as
"XXXX.xxx") are parties to this Agreement only with respect to those provisions
herein that specifically reference and apply to "XXXXxxx.xxx", "XXXX.xxx"
and/or GO Partners. ABC News/Starwave Partners and ESPN/Starwave Partners are
collectively referred to herein as the "GO Partners."
WITNESSETH:
WHEREAS, Infoseek hosts and maintains a U.S. version of the Internet service
known as GO Network (the "Service" or "GO Network") located at,
xxx.xxxxxxxx.xx.xxx, xxx.xx.xxx and/or such successor site(s) as may be
designated by Infoseek through which information organized in applicable
subject-related centers ("the Centers") is provided to its users ("Users"); the
GO Network currently includes the following Infoseek Affiliate Internet sites:
xxx.xxxxxxx.xxx and xxx.xxxx.xxx; and
WHEREAS, Content Partner operates an Internet site located at xxx.xxxxxx.xxx
(the "XxXxxx.xxx Site") and is the provider of information described in Appendix
A hereto ("DKC Health Content"), and e-commerce related content described in
Appendix G (the "Commerce Content") which Content Partner and Infoseek desire to
make available to Users. Content Partner and Infoseek have been in discussions
concerning this Agreement since February, 1999. DKC Health Content and Commerce
Content provided by Content Partner may be collectively referred to herein as
"Content Partner Content".
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, Infoseek and Content Partner hereby agree as follows:
1. LICENSE; OBLIGATIONS OF CONTENT PARTNER; OBLIGATIONS OF INFOSEEK
1.1 Grant. Subject to the terms and conditions of this Agreement,
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Content Partner hereby grants to Infoseek and the GO Partners, a
fully-paid, worldwide, non-exclusive right and license to use,
reproduce, adapt, incorporate, integrate, distribute and otherwise
exploit the Content Partner Content solely on the Service and to use
Content Partner's trade names, trade dress, and trademarks as
expressly permitted herein and as reasonably necessary with respect to
the display and use of the Content Partner Content on the Service.
Infoseek and its subsidiaries and Affiliates may use Content Partner
Content other than on the Service, provided that Infoseek obtains
Content Partner's prior consent for such use on a case-by-case basis.
As used herein, "Affiliate" means with respect to a party to this
Agreement, any entity that directly or indirectly controls, or is
under common control with, or is controlled by, such party; "control"
(including, with its correlative meanings, "controlled by" and "under
common control with") means possession, directly or indirectly, of the
power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise). The terms set forth
in the Appendices attached hereto shall also
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated ***. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.
apply to this Agreement. The Content Partner Content shall be hosted
by the parties as described herein and in the Appendices.
1.2 Page Views. Infoseek shall guarantee, over the three year term of this
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Agreement, *** Page Views on GO Network in accordance with the
following:
***
If, on the second anniversary of the Effective Date, Infoseek has not
satisfied the minimum annual Page View requirements set forth above
for Years 1 and 2 of this Agreement, and this Agreement has not been
terminated as of the second anniversary of the Effective Date,
Infoseek shall have ninety (90) days to correct the shortfall by
delivering additional Page Views to Content Partner (a "make good"
period). If such shortfall has not been corrected at the expiration
of such ninety (90) day make good period, Infoseek shall refund to
Content Partner the fees paid by Content Partner for Page Views not
delivered. Notwithstanding the foregoing, if Infoseek subsequently
delivers Page Views in excess of those guaranteed above ("Excess Page
Views"), Infoseek shall be entitled to a refund, equivalent to the
value of the Excess Page Views, of any fees previously refunded to
Content Partner. ***
Notwithstanding the foregoing, if Infoseek delivers ***.
As used herein, a "Page View" refers to each instance in which an HTML
page is displayed to a User, which page contains any DKC Health
Content or XxXxxx.xxx branding (including, without limitation,
banners, buttons or links), which shall, at minimum, contain one
direct link to the GO Network-Wrapped Pages.
***
As used herein "Impression" means an advertisement image that is
viewable by a person accessing a web page on the Service. Impressions
may include banners, buttons, interstitials, and any other web-based
advertising that becomes generally available to advertisers on GO
Network.
1.3 Hosting by Infoseek. DKC Health Content to be hosted on Infoseek's
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servers will be available to Users through certain web pages located
at xxx.xxxxxx.xx.xxx. Infoseek shall host all DKC Health Content that
appears at Levels 1-3 within the Health Center on the Service. As used
herein, "Level" means a page location within the Service as further
described in Appendix B. Level 1 is the home page of the Health
Center; Level 2 is a navigation page, and Level 3 is the first page
where full text DKC Health Content appears. GO Partners will host any
DKC Health Content on their sites.
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*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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1.4 Hosting by Xx.Xxxx. The portion of the DKC Health Content not hosted
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on Infoseek's servers (Level 4 content) will be hosted on Content
Partner's servers and accessed by Users from Content Partner/Infoseek
co-branded Web pages located at xxxx://xx.xxxxxx.xxx ("GO Network-
Wrapped Pages") pursuant to the specifications in Appendix B hereto.
Content Partner shall cooperate and assist Infoseek by promptly
answering questions and complaints regarding any Content Partner
Content. Each party shall promptly inform the other party of any event
or circumstance, and provide all information pertaining to such event
or circumstance, related or arising from this Agreement which could
lead to a claim or demand against the other party by any third party.
All DKC Health Content shall be provided to Users free of charge;
provided, however, that GO Partners may charge Users for ISP services.
1.5 Delivery of Content. Content Partner will deliver to Infoseek the
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Infoseek-hosted Content Partner Content in a mutually agreeable
format, electronically via modem or Internet access (e.g. Internet ftp
or Internet e-mail). Content Partner agrees to certify that all
deliveries hereunder were made electronically. Content Partner will
make updates to the Content Partner Content available to Infoseek and
Infoseek shall update the Infoseek-hosted Content Partner Content on a
regular mutually agreed upon basis. Infoseek shall have the right,
but not the obligation, to remove, or direct Content Partner to remove
any Content Partner Content, which Infoseek, in its reasonable
discretion, determines to be offensive, in poor taste, or otherwise
objectionable.
1.6 Exclusivity. Subject to the exceptions set forth below, during the
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term of this Agreement, Content Provider shall be the exclusive
provider of Health Content on the Center of GO Network devoted
primarily to health related topics and named the Health Center
("Health Center"). The Health Center shall be the only Center within
the Service devoted primarily to comprehensive health and medical
information. In addition, during the term of this Agreement, Infoseek
shall not enter into any agreements with any third party, other than
Content Partner, to sell or offer within the Health Center (i) Health
Insurance or (ii) clinical trial or clinical research opportunities
of any kind. As used herein, Health Insurance is limited to insurance
policies written to cover medical, dental and vision bills and
expenses exclusively. ***:
1. ***.
2. Infoseek's preexisting contracts with third parties for health
related content; provided, however, Infoseek hereby agrees it shall
not renew any such existing third party contracts and represents that
such contracts shall expire on or before September 15, 1999. The
foregoing representation concerning renewals and expirations shall not
apply to third party agreements relating to GO Shop, as referenced in
Appendix G, Section 2.1
3. Health Content provided to Infoseek by news or data feeds or
Freelancers;
4. Any content created internally by Infoseek or a GO Partner or any
of their Affiliates;
5. ***
6. ***
__________________________
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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7. Infoseek standard advertising banner business and Spotlight
business ***.
8. News and Editorial Content of any kind. As used herein "Editorial
Content" means opinion pieces related to current events and magazine
articles that may relate to health; ***.
As used herein, "Freelancers" shall mean independent parties who
receive a fee for their services and who are not (to Infoseek's or a
GO Partner's knowledge) employed by any ***
XxXxxx.xxx acknowledges that the following shall not constitute a
breach of this Section 1.6: (a) the Infoseek search technology may
search the sites ***; (b) Infoseek may provide search-related products
that may include results from such ***, health insurance information
or products, or clinical trial information; and (c) such *** may be in
the Service Directory. As used herein, Service Directory means the
general directory on GO Network which is currently accessed through
the tab "Web Directory."
The placement and positioning of DKC Health Content within the Health
Center shall be consistent with the mock up pages attached hereto as
Appendix B. Each page of the Health Center will include separate
links to DKC Health Content relating to pharmacy products and health
insurance. Although Infoseek reserves the right to revise the look and
feel of the Health Center and the display of DKC Health Content within
the Health Center (except as expressly set forth herein), the relative
prominence of such DKC Health Content within the Health Center shall
be consistent with the mock up pages attached hereto as Appendix B.
In the event of a breach of this Section 1.6 by Infoseek (an
"Exclusivity Breach"), Content Partner's sole and exclusive remedy
shall be to request removal of the content that violates this Section
1.6, and Infoseek shall comply with such request within five (5)
business days. ***
1.7 Access. The Health Center shall be accessible by Users through no more
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than one hyperlink from the GO home page. Further, Infoseek shall
maintain the Health Center, in a manner consistent with its
development and operation of the other Centers within GO Network.
1.8 Commerce Content. Content Partner will provide Commerce Content to
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the Service as further described in Appendix G.
1.9 ***
__________________________
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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1.10 Response Times. The response times which XxXxxx.xxx shall use to
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remedy and/or correct any material limitations or errors in any
Content Partner Content made available by or through XxXxxx.xxx that
Infoseek brings to XxXxxx.xxx's attention or about which XxXxxx.xxx
otherwise becomes aware are specified in Appendix E; ***. XxXxxx.xxx
agrees not to override browser back button functionality to prevent
Users who link to the GO Network-Wrapped Pages from the Service from
returning to the Service. As used herein "Link" means a so-called
"hot link" in graphical and/or textual format located on the
applicable areas of the Service which takes the User directly to
another web site or area within the site.
1.11 Maintenance of Service. Each party will be responsible for its
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respective telecommunications charges with respect to the provision
of respective portions of the Content Partner Content to Infoseek and
to Users. Except as expressly provided herein, Infoseek retains the
right to adapt or otherwise alter the design, look, and any other
attributes of the Service and Service pages. Infoseek will use
reasonable efforts to promptly incorporate into the Content Partner
Content error corrections within a reasonable period of time after
Content Partner makes such corrections available to Infoseek;
provided, however that if Content Partner advises Infoseek in writing
during normal business hours that failure to promptly correct an
error could result in serious physical injury to a User, Infoseek
shall exercise prompt and commercially reasonable efforts to expedite
the correction of such error.
1.12 User Registration
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a. XxXxxx.xxx shall ensure that its privacy policy applicable to the
XxXxxx.xxx Site and the GO Network-Wrapped Pages, to the extent
applicable to its performance under this Agreement, is consistent
with Infoseek's privacy policy, as may be changed from time to
time, including, without limitation, a mechanism that allows
Users to opt in to sharing of User data (not including personal
medical information) with Infoseek.
b. The following illustrates the User registration experience which
shall be implemented pursuant to this Agreement:
i. An unregistered User in the Health Center encounters
XxXxxx.xxx functionality or DKC Health Content that provides
the User with an opportunity to register. The standard
series of GO Network user registration screens appear, the
first of which explains that this is a simultaneous
registration for XxXxxx.xxx and GO Network. The User then
has the option to continue to register or to click back to
the User's original starting point. If the User responds
"yes", then the User's data will go simultaneously to
XxXxxx.xxx and Infoseek. If the User responds "no", then the
User cannot proceed to use XxXxxx.xxx functionality.
ii. If the User who responds "yes" when initially registering as
specified in Section 1.12 b.i. above, returns to GO Network
or to the XxXxxx.xxx site (not the GO Network-Wrapped Pages)
and logs in, the User will be recognized as a registered
User of both services (provided that the User is known to
the Content Partner as a GO Network registered User).
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*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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iii. The Infoseek privacy policy shall be available to Users (via
a link) at the time of registration as set forth in Section
1.12(b)(i).
iv If a User that has already registered on GO Network elects
to opt-in to Content Partner registration, the User shall
only be required to execute "one click" to transfer his or
her registration data to XxXxxx.xxx.
1.13 XxXxxx.xxx User Data
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a. ***. XxXxxx.xxx shall make available to Infoseek, via a method
and timing to be mutually agreed upon, all names and email
addresses from each Xx.Xxxx.xxx User accessing DKC Health Content
from the Service provided that such User has opted in to the
sharing of his/her data with third parties and provided such
disclosure is not prohibited by law or regulation.
Notwithstanding the foregoing, XxXxxx.xxx shall not provide
personal medical information to Infoseek, including, without
limitation, personal medical records. In addition, except as
prohibited by law, Xx.Xxxx.xxx shall provide to Infoseek all
available data (in aggregate, anonymous form only) concerning
Users who access the GO Network Wrapped Pages from GO Network,
concerning products and/or services purchased by such Users,
survey and promotion responses, and other demographic information
concerning such Users. Infoseek may use such information for its
internal business purposes and may provide such aggregate,
anonymous information to third parties as it deems appropriate in
connection with its operations; provided, however that such
aggregate, anonymous data may not be identified to third parties
as XxXxxx.xxx User data. Such User data must be aggregated with
other Infoseek User data before being provided to a third party.
1.14 Infoseek User Data
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Infoseek shall own all right, title and interest in and to and the
exclusive right to use all User data generated on all pages of the
Service hosted by Infoseek.
1.15 Go Wrapper
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Both parties hereby acknowledge that the GO Network-Wrapped Pages
wrapper (the "GO Wrapper") will evolve over the term of the
Agreement. To this end, Infoseek shall ensure that the GO Wrapper
will include the following elements, consistent with the mock up
pages attached hereto as Appendix B
Header
Tabs
Breadcrumbs
Footer
In the event that Infoseek elects to substantially modify the GO
Wrapper that is displayed in connection with DKC Health Content,
Infoseek shall seek XxXxxx.xxx's approval of such modifications,
which approval shall not be unreasonably withheld or delayed.
__________________________
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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2. FEES AND PAYMENTS
2.1 Content Partner will make payments to Infoseek in the amounts and at
the times specified in Appendix F and Appendix G. Content Partner will be
responsible for the proper payment of all taxes, including sales, excise
and value added taxes, which may be levied in connection therewith,
exclusive of taxes based upon Infoseek's net income.
2.2 All payments made to Infoseek hereunder shall be made via wire
transfer in accordance with the following instructions, or such other
instructions as may be provided to Content Partner in writing by an
authorized representative of Infoseek:
Wire transfer, EFT/ACH Payment remittance instructions:
Bank of America
San Francisco, California
ABA Number: 000000000
Account Name: Infoseek Corporation
Account Number: 12335-30390
Swift ID: XXXXXX0X
3. CONFIDENTIAL INFORMATION
3.1 Either Infoseek (which, for purposes of this Article 3 only, shall
include the GO Partners) or Content Partner may disclose to the other
(the "Receiving Party") certain information that the disclosing party
deems to be confidential and proprietary ("Proprietary Information"),
and technical and other business information of the disclosing party
that is not generally available to the public.
3.2 The Receiving Party agrees to use Proprietary Information solely in
conjunction with its performance under this Agreement and not to
disclose or otherwise use such information in any fashion. The
Receiving Party, however, will not be required to keep confidential
such Proprietary Information that becomes generally available without
fault on its part; is already rightfully in the Receiving Party's
possession without restriction prior to its receipt from the
disclosing party; is independently developed by the Receiving Party;
is disclosed by third parties without similar restrictions; is
rightfully obtained by the Receiving Party from third parties without
restriction; or is otherwise required by law or judicial process.
3.3 Unless required by law or to assert its rights under this Agreement,
and except for disclosure on a "need to know basis" to its own
employees, and its legal, investment, financial and other professional
advisers on a confidential basis, each party agrees not to disclose
the terms of this Agreement or matters related thereto without the
prior written consent of the other party.
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4. REPRESENTATIONS AND WARRANTIES
4.1 Content Partner represents and warrants that it is the owner of the
Content Partner Content and/or has the right to grant the rights
hereunder. Content Partner represents and warrants to Infoseek and
the GO Partners that it holds the necessary rights to permit the use
of Content Partner Content by Infoseek and the GO Partners for the
purpose of this Agreement; that its entry into this Agreement does not
violate any agreement with any other party; that its performance under
this Agreement will conform to applicable U.S. laws and government
rules and regulations; that to the best of its knowledge, after
reasonable inquiry, the Content Partner Content is true, accurate and
does not contain material omissions; Content Partner further
represents and warrants to Infoseek and the GO Partners that the use,
reproduction, distribution, transmission, or display of Content
Partner Content, Content Partner's collection and use of XxXxxx.xxx
User Data and the sale of products and services by Content Partner as
contemplated in this Agreement will not (a) violate any laws or any
rights of any third parties, including, but not limited to, such
violations as infringement or misappropriation of any U.S. copyright,
patent, trademark, trade dress, trade secret, music, image, or other
proprietary or property right, false advertising, unfair competition,
defamation, invasion of privacy or publicity rights, moral or
otherwise, or rights of celebrity, violation of any antidiscrimination
law or regulation, or any other right of any person or entity; or (b)
contain any material that is: unlawful, harmful, fraudulent,
threatening, abusive, harassing, defamatory, vulgar, obscene, profane,
hateful, racially, ethnically, or otherwise objectionable, including,
without limitation, any material that supports, promotes or otherwise
encourages wrongful conduct that would constitute a criminal offense,
give rise to civil liability, or otherwise violate any applicable
local, state or national laws.
4.2 Content Partner represents and warrants that, *** the systems and
technology utilized to operate the XxXxxx.xxx Site and the GO Network
Wrapped Pages (including, without limitation, order fulfillment
systems relating to products sold by Content Partner) are compliant
with the following Year 2000 requirements: (a) the occurrence in or
use by such systems of dates before, on or after January 1, 2000 will
not adversely affect the performance of such systems with respect to
date-dependent data, computations, output, or other functions
(including, without limitations, calculating, comparing and
sequencing); and (b) such systems will not abnormally end or provide
invalid or incorrect results as a result of date dependent data.
4.3 Infoseek represents and warrants, *** that the systems and technology
utilized by Infoseek to operate the GO Network (including, without
limitation, order fulfillment systems relating to products sold by
Infoseek) are compliant with the following Year 2000 requirements: (a)
the occurrence in or use by such systems of dates before, on or after
January 1, 2000 will not adversely affect the performance of such
systems with respect to date-dependent data, computations, output, or
other functions (including, without limitations, calculating,
comparing and sequencing); and (b) such systems will not abnormally
end or provide invalid or incorrect results as a result of date
dependent data.
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*** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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4.4 Infoseek represents and warrants to Content Partner that *** this
Agreement does not violate any agreement with any other party; that
its performance under this Agreement will conform to applicable U.S.
laws and government rules and regulations; that the Infoseek
proprietary technology as utilized by the Service does not infringe
any U.S. copyright, patent, trademark, trade dress or trade secret of
any person or entity, and that Infoseek Content (as defined in this
Section 4.4) will not (a) violate any U.S. laws or any rights of any
third parties, including, but not limited to, such violations as
infringement or misappropriation of any copyright, patent, trademark,
trade dress, trade secret, music, image, or other proprietary or
property right, false advertising, unfair competition, defamation,
invasion of privacy or publicity rights, moral or otherwise, or rights
of celebrity, violation of any antidiscrimination law or regulation,
or any other right of any person or entity; or (b) contain any
material that is: unlawful, harmful, fraudulent, threatening, abusive,
harassing, defamatory, vulgar, obscene, profane, hateful, racially,
ethnically, or otherwise objectionable, including, without limitation,
any material that supports, promotes or otherwise encourages wrongful
conduct that would constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local, state, or
national laws. As used herein, "Infoseek Content" means any content
on the Health Center that has been authored and created solely by
Infoseek.
5. LIMITATION OF LIABILITY; DISCLAIMER
5.1 EXCEPT FOR EITHER PARTY'S LIABILITY FOR THIRD PARTY CLAIMS AS
SPECIFIED IN ARTICLE 9 BELOW OR IN APPENDIX A, SECTION C(7), OR ANY
PARTY'S BREACH OF ARTICLE 3, OR DAMAGES ARISING FROM PERSONAL INJURY,
IN NO EVENT SHALL CONTENT PROVIDER, INFOSEEK, GO PARTNERS OR ANY OF
THEIR AFFILIATES BE LIABLE TO ANY OTHER PARTY OR ITS AFFILIATES FOR
ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY
NATURE, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE
NEGLIGENCE OR OTHER FAULT OF ANY PARTY AND REGARDLESS OF WHETHER SUCH
LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR
ANY OTHER THEORY OF LIABILITY.
5.2 EXCEPT AS SET FORTH IN ARTICLE 4, CONTENT PARTNER, INFOSEEK AND THE GO
PARTNERS MAKE NO, AND EACH PARTY ACKNOWLEDGES THAT EACH PARTY HAS NOT
MADE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE, THE CONTENT
PARTNER CONTENT, GO PARTNERS, THE XXXXXX.XXX SITE, OR THE OPERATION OF
THE CONTENT PARTNER CONTENT ON THE SERVICE, INCLUDING, BUT NOT LIMITED
TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
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*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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6. TERM AND TERMINATION
6.1 This Agreement shall be effective on the date executed by both parties
("Effective Date") and shall continue in force for an initial term
ending thirty-six (36) months from the Effective Date. Upon prior
mutual written agreement, the then current term of this Agreement may
be renewed at the end of such initial term and each anniversary date
thereafter for one (1) year renewal terms. Notwithstanding the
foregoing, either party may terminate this Agreement without cause
effective as of the second anniversary of the Effective Date by
providing at least 120 days prior written notice to the other party.
If this Agreement is not terminated as of the second anniversary of
the Effective Date, the Agreement shall continue in full force and
effect for another twelve (12) months (unless terminated for cause
during said 12 month period).
6.2 Either party will have the right to immediately terminate this
Agreement if the other party is in default of any obligation herein,
including failure of XxXxxx.xxx to provide DKC Health Content, or
Commerce Content, and such breach is incapable of being cured, or if
such breach is capable of cure, such breach is not cured within thirty
(30) days (or fourteen (14) days with respect to any default in any
payment obligation) after receipt of written notice of such default
from the non-defaulting party or within such additional cure period as
the non-defaulting party may authorize.
6.3 If the GO Network-Wrapped Pages do not meet the following performance
standards (which shall be measured by Infoseek or an independent third
party mutually agreed to between the parties and paid for solely by
XxXxxx.xxx), and such failure is not due to force majeure events or
the failure of any third party services, hardware, software or
telecommunications systems not controlled by Content Partner,
Infoseek shall notify the Content Partner in writing and Content
Partner shall exercise commercially reasonable efforts to promptly
correct the failure. ***
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If Infoseek elects to terminate the Agreement pursuant to this Section
6.3, such termination shall relieve both parties of any further
liability (except as provided in Section 6.5 below), including but not
limited to, the payment of fees as set forth in Section 2.
6.4 If that portion of the Health Center hosted by Infoseek ("Health
Center" as used in this Section 6.4) does not meet the following
external performance standards, as measured by Keynote or another
independent service provider, mutually agreed to between the parties,
and such failure is not due to force majeure events or the failure of
any third party services, hardware, software or telecommunications
systems not controlled by Infoseek, XxXxxx.xxx shall notify the
Infoseek in writing and upon such notice Infoseek shall use
commercially reasonable efforts to promptly correct the problem. ***.
Such performance standards are as follows:
***
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*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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6.5 The following provisions of this Agreement shall survive the
termination or expiration of this Agreement: 1.13 (first sentence
only), 1.14, 2.1, Article 3, Article 5, 8.1 (first two sentences
only), 8.2, Article 4 (as to claims arising prior to termination or
expiration or claims based on events arising prior to termination or
expiration), Article 9, and Article 10.
6.6 Upon the termination or expiration of this Agreement, each party shall
(a) promptly return all Proprietary Information, and other
information, documents, manuals and other materials belonging to the
other party (or any GO Partner), except as may be otherwise provided
in this Agreement; and (b) promptly remove the other party's content,
branding, links, and any other material provided under this Agreement.
6.7 During the term of this Agreement, Infoseek shall not enter into any
agreements to permit the sale or distribution of tobacco or tobacco
products on the Health Center. Notwithstanding the foregoing, Content
Partner acknowledges and agrees that information concerning tobacco
and tobacco products may be displayed in standard search and directory
result format on the Health Center in response to the search queries
of Users.
7. FORCE MAJEURE
Neither party will be liable for delay or default in the performance of its
obligations under this Agreement (other than for non-payment) if such delay
or default is caused by conditions beyond its reasonable control,
including, but not limited to, fire, flood, accident, earthquakes,
telecommunications line failures, storm, acts of war, riot, government
interference, strikes and/or walk-outs. In the event of a force majeure
event which lasts longer than twenty (20) days, the party not experiencing
the force majeure event may terminate this Agreement upon prior written
notice to the other party.
8. ADVERTISING AND PROMOTION; PUBLICITY
8.1 Content Partner shall not issue or permit the issuance of any press
releases or publicity regarding, or grant any interview, or make any
public statements whatsoever concerning, this Agreement, GO Network or
Infoseek (or its Affiliates, including, without limitation, XXXX.xxx,
XXXXxxx.xxx, The Xxxx Disney Company, or any of their Affiliates)
without prior coordination with and written approval from Infoseek,
which approval may be granted or withheld in Infoseek's sole
discretion. Infoseek shall not issue or permit the issuance of any
press releases or publicity regarding, or grant any interview, or make
any public statements whatsoever concerning this Agreement or Content
Partner without prior coordination with and written approval from
Content Partner, which approval may be granted or withheld in Content
Partner's sole discretion. Notwithstanding the foregoing, promptly
after execution of this Agreement and during the term of the
Agreement, XxXxxx.xxx ***
__________________________
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
11
shall reasonably cooperate with Infoseek in the issuance of a press
release, mutually agreed to between the parties, announcing this
Agreement and endorsing the distribution of DKC Health Content on the
Health Center of GO Network. All Content Partner endorsements and
public statements concerning this Agreement must receive Infoseek's
prior review and approval. Notwithstanding the foregoing, XxXxxx.xxx
shall not state or imply, in advertisements, writings, or otherwise,
that Infoseek or its Affiliates endorse XxXxxx.xxx's products or
services or any other product or service. Content Partner shall not
use, verbally or in writing, the names ABC, ABCNews or The Xxxx Disney
Company in connection with the sale of advertising by Content Partner
(except that Content Partner may describe the sites included within
the GO Network).
8.2 Neither Infoseek or the GO Partners shall have any right to use the
name and/or likeness of Dr. C Xxxxxxx Xxxx or to make any statements,
whether written or oral, which state or otherwise imply, directly or
indirectly, any endorsement from or affiliation with Xx. Xxxx in any
manner whatsoever without the prior written consent of XxXxxx.xxx,
which consent may be withheld in XxXxxx.xxx's sole discretion.
8.3 Content Partner and Infoseek may undertake such joint marketing
efforts as may be mutually agreed upon from time to time. Each party
shall cooperate and assist the other party by supplying, without
charge, reasonable quantities of materials for the other party's
marketing and promotional activities. Neither party shall be obligated
to participate in any joint marketing efforts, except as expressly
provided in Section 8.1 above.
9. INDEMNIFICATION
9.1 Content Partner agrees to defend, indemnify and hold Infoseek and the
GO Partners and their officers, directors, agents and employees
harmless from and against any and all claims, demands, liabilities,
actions, judgments, and expenses, including reasonable fees and
expenses of attorneys, paralegals and other professionals, arising out
of or related to (i) any breach or alleged breach of any of Content
Partner's representations and warranties set forth in Section 4.1;
(ii) any breach by Content Partner of an international law, rule or
regulation or international third party proprietary right (as if
Content Partner had made the representations and warranties equivalent
to those set forth in Section 4.1 regarding US laws, regulations and
proprietary rights) (ii) any injury to person or property caused by
any products or services sold by Content Partner, or any User's use of
or reliance on the DKC Health Content; (iii) any injury to person or
property caused by any products or services sold through Content
Partner Content (including, without limitation, the sale of products
by Affiliate Partners); (iv) any other claim with respect to Content
Partner, Content Partner Content, or products or services sold by or
through Content Partner or its Affiliate Partners, or (v) Content
Partner's sales or marketing practices. Content Partner shall bear
full responsibility for the defense (including any settlements) of any
such claim; provided however, that (a) Content Partner shall keep
Infoseek (and GO Partners, as applicable) informed of, and consult
with Infoseek in connection with the progress of such litigation or
settlement; and (b) Content Partner shall not have any right, without
Infoseek's written consent, to settle any such claim if such
settlement arises from or is part of any criminal action, suit or
proceeding or contains a stipulation to or admission or acknowledgment
of, any liability or wrongdoing (whether in contract, tort or
otherwise) on the part of Infoseek or its Affiliates or otherwise
requires Infoseek or its Affiliates to take or refrain from taking any
material action (such as the payment of fees).
9.2 Infoseek agrees to defend, indemnify and hold Content Partner and its
officers, directors, agents and employees harmless from and against
any and all claims, demands, liabilities, actions, judgments, and
expenses, including reasonable fees and expenses of attorneys,
paralegals and other professionals, arising out of or related to (i)
any breach or alleged
12
breach of any of Infoseek's representations and warranties set forth
in Section 4.4; (ii) any injury to person or property caused by any
Infoseek products or Infoseek services sold by Infoseek on the Health
Center, or any User's use of or reliance on the Infoseek Content
displayed on the Health Center; or (iii) any breach by Infoseek of an
international law, rule or regulation or international third party
proprietary right (as if Infoseek had made the representations and
warranties equivalent to those set forth in Section 4.4 regarding US
laws, regulations and proprietary rights). Infoseek shall bear full
responsibility for the defense (including any settlements) of any such
claim; provided, however, that (a) Infoseek shall keep Content Partner
informed of, and consult with Content Partner in connection with the
progress of such litigation or settlement; and (b) Infoseek shall not
have any right, without Content Partner's written consent, to settle
any such claim if such settlement arises from or is part of any
criminal action, suit or proceeding or contains a stipulation to or
admission or acknowledgment of, any liability or wrongdoing (whether
in contract, tort or otherwise) on the part of Content Provider or its
Affiliates or otherwise requires Content Partner or its Affiliates to
take or refrain from taking any material action (such as the payment
of fees).
9.3 Each GO Partner agrees to defend, indemnify and hold Content Partner
and its officers, directors, agents and employees harmless from and
against any and all claims, demands, liabilities, actions, judgments,
and expenses, including reasonable fees and expenses of attorneys,
paralegals and other professionals, arising out of or related to any
content authored by such GO Partner which is displayed in connection
with the DKC Health Content on a GO Partner's Internet site. The
indemnifying party shall bear full responsibility for the defense
(including any settlements) of any such claim; provided however, that
(a) such party shall keep Content Partner informed of, and consult
with Content Partner in connection with the progress of such
litigation or settlement; and (b) such party shall not have any right,
without Content Partner's written consent, to settle any such claim if
such settlement arises from or is part of any criminal action, suit or
proceeding or contains a stipulation to or admission or acknowledgment
of, any liability or wrongdoing (whether in contract, tort or
otherwise) on the part of Content Partner or otherwise requires
Content Partner to take or refrain from taking any material action
(such as the payment of fees).
10. GENERAL TERMS AND CONDITIONS
10.1 The parties to this Agreement are independent contractors. Neither
party is an agent, representative or partner of the other party.
Neither party shall have any right, power or authority to enter into
any agreement for or on behalf of, or to incur any obligation or
liability for, or to otherwise bind, the other party. This Agreement
shall not be interpreted or construed to create an association, joint
venture, co-ownership, co-authorship, or partnership between the
parties or to impose any partnership obligation or liability upon
either party.
10.2 Neither party shall assign, sublicense or otherwise transfer
(voluntarily, by operation of law or otherwise) this Agreement or any
right, interest or benefit under this Agreement, without the prior
written consent of the other party; provided, however, that either
party may assign this Agreement to any entity that acquires all or
substantially all of the assets or shares (or controlling shares) of
such party; provided that the acquiring entity is not a direct
competitor of the other party. Any attempted assignment, sublicense or
transfer by a party in derogation hereof shall be null and void.
Subject to the foregoing, this Agreement shall be fully binding upon,
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and assigns. Any change of control of
either party shall be deemed an "assignment" for purposes of this
Section 10.2; provided, however, that as long as control is not
transferred to a direct competitor of the
13
nonassigning party, it shall be an approved assignment. As used
herein, "change of control" shall include any event (including,
without limitation, a merger, sale, liquidation, transfer, encumbrance
or other disposition) which results in a change of the control of a
party. As used in this Section 10.2 "change of control" shall mean a
change in the legal, beneficial or equitable ownership, directly or
indirectly, of more than fifty (50%) of a class of capital stock
having voting rights of either party.
10.3 No change, amendment or modification of any provision of this
Agreement or waiver of any of its terms will be valid unless set forth
in writing and signed by the party to be bound thereby.
10.4 This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the State of California. Each
party irrevocably consents to the exclusive jurisdiction of any state
or federal court for or within Santa Xxxxx County, California over any
action or proceeding arising out of or related to this Agreement, and
waives any objection to venue or inconvenience of the forum in any
such court.
10.5 The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement or
to exercise any right under this Agreement shall not be construed as a
waiver or relinquishment to any extent of such party's right to assert
or rely upon any such provision or right in that or any other
instance; rather the same shall be and remain in full force and
effect.
10.6 Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing, will
reference this Agreement, and shall be deemed to have been delivered
and given (a) when delivered personally; (b) three (3) business days
after having been sent by registered or certified U.S. mail, return
receipt requested, postage and charges prepaid; or (c) one (1)
business day after deposit with a commercial overnight courier, with
written verification of receipt. All communications will be sent to
the addresses set forth below or to such other address as may be
designated by a party by giving written notice to the other party
pursuant to this Section 10.6.
If to Infoseek: If to Content Partner:
Infoseek Corporation xxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxx Xxxxx 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000 Xxxxxx, Xxxxx 00000
Attention: Legal Department Attention: CFO
Tel: (000) 000-0000 Tel: (000) 000-0000
With a copy to: With a copy to:
XXXXxxx.xxx Xxxxxx & Xxxxxxx
00 X. 00xx Xxxxxx 000 Xxxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx, Esq. Attention: Xxxxxxx Xxxxxxxx, Esq.
Tel: (000) 000-0000 Tel: (000) 000-0000
10.7 This Agreement and the Appendices attached hereto and incorporated
herein by reference constitute the entire agreement between the
parties and supersede any and all prior agreements or understandings
between the parties with respect to the subject matter hereof. Neither
party shall be bound by, and each party specifically objects to, any
term, condition other provision or other condition which is
different from or in addition to the provisions of this Agreement
(whether or not it would materially alter this Agreement) and which is
proffered by the other party in any purchase order, correspondence or
other
14
document, unless the party to be bound thereby specifically agrees to
such provision in writing.
10.8 The headings used in this Agreement are for convenience only and are
not to be construed to have legal significance. In the event that any
provision of this Agreement conflicts with the law under which this
Agreement is to be construed or if any such provision is held invalid
by a court with jurisdiction over the parties to this Agreement, such
provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the parties in accordance with
applicable law, and the remainder of this Agreement shall remain in
full force and effect. This Agreement may be executed in counterparts.
INFOSEEK CORPORATION XXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------- ----------------------------
Authorized Signature Authorized Signature
Print Name: Xxxxx Xxxxx Print Name: Xxxxxx X. Xxxxxxx
------------------ --------------------
Title: CEO Title: CEO
----------------------- -------------------------
Date: 4/9/99 Date: 4/9/99
------------------------ --------------------------
Accepted will respect to all matters affecting XXXXxxx.xxx and ABC News/Starwave
Partners d/b/a ABC News Internet Ventures:
ABC NEWS/STARWAVE PARTNERS D/B/A ABC NEWS INTERNET VENTURES
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Print Name: Xxxxxxxx X. Xxxxx
------------------
Title: Senior Vice President
-----------------------
Date: 4/9/99
------------------------
Accepted with respect to all matters affecting XXXX.xxx and ESPN/Starwave
Partners d/b/a ESPN Internet Ventures:
ESPN/STARWAVE PARTNERS D/B/A ESPN INTERNET VENTURES
By: /s/ Xxxxx Xxxxx
--------------------------
Print Name: Xxxxx Xxxxx
------------------
Title: SVP-General Manager
-----------------------
Date: 4/9/99
------------------------
15
APPENDIX A
A. HEALTH CONTENT
"Health Content" means content that relates to human health
conditions, medicine, and the treatment of disease.
"DKC Health Content" means content that relates to human health
conditions, medicine, and the treatment of disease as further defined
on Xxxxxxxx X-0, which content includes XxXxxx.xxx branding.
Xx.Xxxx.xxx may, subject to Infoseek's approval, which shall not be
unreasonably withheld or delayed, revise Appendix A-1 to include new
content and functionality added to the XxXxxx.xxx Site after the date
of this Agreement. As part of DKC Health Content, XxXxxx.xxx will
provide Infoseek and the GO Partners with unique Health Content that
is not available from XxXxxx.xxx on any other Internet portal with
which XxXxxx.xxx has an agreement.
B. GO NETWORK PROGRAM DESCRIPTION
1. A sample schematic illustrating the layout of the Infoseek hosted
Health Center is set forth in Appendix B. Any material change to such
layout shall be mutually agreed to by Infoseek and Content Partner.
2. a. XxXxxx.xxx shall provide DKC Health Content and related tools to
the Health Center in areas and subjects as specified by Infoseek.
***
b. ***
***
3. All links pointing to GO Network-Wrapped Pages from the Service
shall provide links back to the Service.
4. Infoseek will have editorial control over all content appearing on the
Service and branded in any way to Infoseek and GO Network.
Notwithstanding the foregoing, Infoseek shall not modify, edit,
abbreviate or censor DKC Health Content, but Infoseek shall have the
right to not include such content on any pages of GO Network.
5. All DKC Health Content shall carry Content Partner's standard
legal disclaimer, which is set forth in Xxxxxxxx X-0, and may be
subject to reasonable changes from time to time. This disclaimer shall
be presented in its entirety any time DKC Health Content is displayed.
In addition, certain third party content which is provided by Content
Partner may have additional requirements for displaying, such as
including the logo of the original content provider (for example,
Dartmouth Medical content must carry the branding and logo of the
Dartmouth Medical School), which requirements are described on
Appendix A-1. Content Partner will provide further details concerning
such requirements at the time DKC Health Content is submitted for
inclusion in the Service.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
16
6. At Infoseek's request, XxXxxx.xxx shall temporarily send to
Infoseek's facilities a minimum of three (3) on-site
designers/producers/engineers during the term of this Agreement for a
mutually agreed upon duration for purposes of assisting Infoseek in
building the Health Center, and Infoseek Commerce Area as it relates
to Commerce Content.
7. ***
8. If Infoseek elects to provide Health Content for other potential
GO Network health areas during the term of this Agreement, Infoseek
shall have the option, but not the obligation, subject to Content
Provider's approval, which shall not be unreasonably withheld or
delayed, to use any such XxXxxx.xxx Health Content pursuant to GO
Network producers and editors decisions.
9. ***
10. Any promotions and/or links to GO Network provided by XxXxxx.xxx shall
be approved in advance by Infoseek, which approval shall not be
unreasonably withheld or delayed.
11. Both parties will discuss how Infoseek may integrate Xx. Xxxx
community functions (Chat and Message Boards) into Go Network
Communities Center and Go Network Health Center ***. Go Network
Community Center is defined as Chat and Message Boards only. Such
functions are scheduled to be launched in ***. Fees for custom Go
Community services will be assessed on a case by case basis. Infoseek
shall provide Content Partner with a right of first negotiation (for a
period not to exceed ten (10) business days) to become a content
provider with respect to health related matters in the GO Network
Community Center.
C. PROGRAM DESCRIPTION - XXXXXXX.XXX
1. Subject to the following exceptions, XXXXxxx.xxx shall not ***
2. XxXxxx.xxx shall provide DKC Health Content to XXXXxxx.xxx in
content areas and subjects as specified by XXXXxxx.xxx. *** All Health
Content appearing on XXXXxxx.xxx shall be hosted by XXXXxxx.xxx or
Infoseek, or an Infoseek Affiliate, unless otherwise mutually agreed.
Any links from XXXXxxx.xxx to DKC Health Content will be links
directed to GO-Network Wrapped Pages or to pages with an XXXXxxx.xxx
wrapper or to pages with no wrapper, at ABC's sole discretion. Nothing
in this Agreement shall give Content Partner the right to sell or
provide advertising of any kind on XXXXxxx.xxx.
3. XXXXxxx.xxx shall determine which of the following content shall
be included as part of the DKC Health Content displayed on XXXXxxx.xxx
and the parties shall mutually agree upon a schedule and method for
such implementation within 90 days of the Effective Date.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
17
OVERALL HEALTH AND INDIVIDUAL ILLNESS RISK ASSESSMENT TOOLS
-----------------------------------------------------------
a. Risk calculators for specific diseases/conditions
b. Personal health diary
c. Clinical pathways/symptom checklists "trees"
d. Health IQ quizzes
REFERENCE MATERIALS
-------------------
a. Virtual Anatomy applications
b. Virtual tour of body
c. Link to Physician Finder Service
d. Link to Hospital Rankings
e. Link to Encyclopedic health manual
MEDICAL RECORDS
---------------
a. The ability of XXXXXXX.xxx users to download Personal Medical
Record(TM)
b. Personal Medical Record(TM)
VIDEO AND LIVE EVENTS
---------------------
Other
Alternative Medicine resources
4. All links pointing to the GO Network-Wrapped Pages (or pages with
an XXXXxxx.xxx wrapper, if applicable) from XXXXxxx.xxx shall provide
links back to XXXXxxx.xxx.
5. XXXXxxx.xxx and XxXxxx.xxx shall negotiate in good faith *** to
finalize a mutually acceptable agreement pursuant to which XXXXxxx.xxx
would be the *** provider of news and headlines to XxXxxx.xxx (the
"News Agreement"). Any such headlines or news stories would be
provided *** for use on the GO Network-Wrapped Pages and/or the
XxXxxx.xxx Site. Provided a mutually acceptable News Agreement is
finalized within such *** period, XxXxxx.xxx shall follow the process
in item C (6) below if it seeks to obtain news stories not provided by
XXXXxxx.xxx. If a News Agreement is not finalized within such time
period, the provisions of Section C(6) below shall be inapplicable.
6. ***
7. XXXXxxx.xxx will have editorial control over all content appearing on
its site and shall control the look and feel of its site.
Notwithstanding the foregoing, XXXXxxx.xxx shall not modify, edit,
abbreviate or censor DKC Health Content, but XXXXxxx.xxx shall have
the right not to include such content on any pages of XXXXxxx.xxx. ***
8. Any promotions and/or links to XXXXxxx.xxx provided by XxXxxx.xxx
shall be approved in advance by XXXXxxx.xxx
9. Nothing in this Agreement shall restrict or limit the right of
XXXXxxx.xxx to sell and display on the XXXXxxx.xxx site advertising,
promotions and sponsorships from XxXxxx.xxx Direct Competitors listed
on Appendix C. The advertising restrictions set forth in Section B (7)
of this Appendix A do not apply to XXXXxxx.xxx.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
18
10. ABC AFFILIATE PROVISIONS
In consideration of this Agreement, XXXXxxx.xxx and XxXxxx.xxx agree
as follows:
(a) Dr. Xxxx.xxx *** a "link" on the ABC Local Net for ***, pursuant
to a Distribution Agreement to be mutually agreed to between the
parties. The ABC Local Net makes available Internet content to 115
affiliate ABC television stations throughout the country.
(b) Provided that XxXxxx.xxx has purchased the link referenced in
section 10(a) above, XXXXxxx.xxx will use reasonable efforts to
facilitate introductory communications and meetings between XxXxxx.xxx
management and executives at all ABC owned stations concerning
XxXxxx.xxx services and strategic initiatives.
(c ) ABC owned and affiliate stations in all United States markets
will be *** participate in XxXxxx.xxx's station affiliate program (the
"DrKoop Affiliate Program"), in designated market areas ("DMAs") where
this program is offered at the sole discretion of XxXxxx.xxx .
Provided that XxXxxx.xxx has purchased the link referenced in Section
10(a) above, Information concerning the details of the DrKoop
Affiliate Program, which details shall be mutually agreed to between
the parties, will be distributed to such affiliates by ABC, at
XxXxxx.xxx's sole expense, within 30 days of the Execution Date of
this agreement.
(d) Should an ABC affiliated station express interest in the DrKoop
Affiliate Program, XxXxxx.xxx will arrange for a presentation of the
DrKoop Affiliate Program terms to the station at the mutual
convenience of XxXxxx.xxx and the station, and such station will have
10 business days following this presentation to either accept or
reject the terms of the DrKoop Affiliate Program. If XxXxxx.xxx and
such station are unable to agree on terms ***
11. XXXXxxx.xxx and Infoseek shall each appoint a project liaison to
coordinate the provision of DKC Health Content to XXXXxxx.xxx.
D. PROGRAM DESCRIPTION - XXXX.XXX
1. Subject to the exceptions set forth below in Section this Section
D (1), during the term of this Agreement, Content Provider shall be
the exclusive provider of Health Content to the section of the
XXXX.xxx site devoted primarily to health and medical related topics,
which section is currently named the Training Room (the "Training
Room"). ***
2. XXXX.xxx and XxXxxx.xxx shall mutually agree upon a schedule for the
display of DKC Health Content on the Training Room of XXXX.xxx, which
may include implementation of the following features:
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
19
(i) weekly articles for both the fitness and conditioning and the
sports nutrition subsections of Training Room, either re-purposed
directly from existing DKC Health Content or written specifically by
XxXxxx.xxx staff for XXXX.xxx's audience of recreational athletes and
sports fans.
(ii) weekly replies from experts affiliated with XxXxxx.xxx to
XXXX.xxx user questions in each of the two subsections specified in
Section D. 2(i) above.
(iii) online assessments (quizzes, rate-yourself surveys, body-fat
calculators, etc.) for both subsections.
(iv) at least one photo for each article and illustrations, graphs,
statistical tables and charts wherever appropriate in subsections
specified in Section D. 2(i) and D.2(ii) above.
(v) periodic online chats with experts provided by XxXxxx.xxx.
3. XxXxxx.xxx may provide additional health related content in areas
within the League sites (NFL, NBA, and NASCAR); subject to Infoseek,
in its role as a general partner of EIV, using commercially reasonable
efforts to receive applicable approvals from the owners of such sites;
no assurance can be provided that such approvals will be obtained.
4. XxXxxx.xxx shall provide DKC Health Content to the Training Room in
areas and subjects as specified by XXXX.xxx., which shall be mutually
agreed to by the parties within 90 days of the Effective Date. ***
5. All links pointing to the GO Network-Wrapped Pages from XXXX.xxx shall
provide links back to XXXX.xxx. All Health Content appearing on
XXXX.xxx shall be hosted by XXXX.xxx or Infoseek, or an Infoseek
Affiliate, unless otherwise mutually agreed. Any links from
XXXX.xxx.xxx to DKC Health Content will be links directed to GO-
Network Wrapped Pages or to pages with an XXXX.xxx wrapper or to pages
with no wrapper, at XXXX.xxx's sole discretion. Nothing in this
Agreement shall give Content Partner the right to sell or provide
advertising of any kind on XXXX.xxx.
6. ***
7. XXXX.xxx will have editorial control over all content appearing on its site
and the look and feel of its site. Notwithstanding the foregoing, XXXX.xxx shall
not modify, edit, abbreviate or censor DKC Health Content, but XXXX.xxx shall
have the right to not include such content on pages of XXXX.xxx.
8. Any promotions and/or links to XXXX.xxx provided by XxXxxx.xxx shall be
approved in advance by XXXX.xxx
9. Nothing in this Agreement shall restrict or limit the right of XXXX.xxx to
sell or provide advertising, promotions and sponsorships for display on XXXX.xxx
(including the Training Center) ***. The advertising restrictions set forth in
Section B (7) of this Appendix A do not apply to XXXX.xxx.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
20
APPENDIX A-1
This Appendix A-1 sets forth existing DKC Health Content as of the Effective
Date. Content Partner may revise this Appendix from time to time, to reflect new
content added to the XxXxxx.xxx Site, and to reflect the termination or
expiration of third party agreements, which revisions shall be subject to
Infoseek's reasonable approval; notwithstanding the foregoing, Content Partner
shall maintain the quality and quantity of DKC Health Content available to
Infoseek and the GO Partners throughout the term of the Agreement.
Category Source Copyright Distribution Disclaimer Logo
Rights Required Needed
==========================================================================================================
Disease
Dartmouth Xxxxxx.xxx any use Standard Yes
X. Xxxxxxxxx Xxxxxx.xxx any use Standard Yes
Public Domain - NIH Xxxxxx.xxx any use Standard Yes
Patient Associations Individual deals - Standard No
please inquire about
specifics with
xxxxxxx@xxxxxx.xxx
==================================================================================================
Expert Xxxxxx Xxxxxx - Xxxxxx.xxx any use Standard No
Content Nutrition
Xxxxxx Xxxxx - Xxxxxx.xxx any use Standard No
Fitness
Xxxxxx Xxxxxx - Xxxxxx.xxx any use Standard No
Smoking
Xxxxxxxxx Xxxxxxxx Xxxxxx.xxx any use Standard No
- Insurance
==================================================================================================
Pharmacy Xxx Xxxxxxx JG Limited offline use Standard No
21
Multum Multum Standard + Yes
Multum
==================================================================================================
Insurance X. Xxxxxx / T. Xxxxxx.xxx any use Standard No
Xxxxx
==================================================================================================
==================================================================================================
Clinical Public domain any use Standard No
Trials
==================================================================================================
Community Day in my life Xxxxxx.xxx any use Standard No
In the Spotlight Individual deals - Standard No
please inquire
==================================================================================================
No
Health Site Xxxxxx.xxx any use Standard
Reviews
Standard Disclaimer
-------------------
This information is not intended to be a substitute for professional medical
advice. You should not use this information to diagnose or treat a health
problem or disease without consulting with a qualified healthcare provider.
Please consult your healthcare provider with any questions or concerns you may
have regarding your condition.
Multum Disclaimer
-----------------
Every effort has been made to ensure that the information provided by Multum is
accurate, up-to-date, and complete, but no guarantee is made to that effect. In
addition, the drug information contained herein may be time sensitive and should
not be utilized as a reference resource beyond the date hereof. Also requires
user to accept Terms of Use when such content is first displayed.
00
XXXXXXXX X
GO NETWORK-WRAPPED PAGES SPECIFICATIONS
AND
INFOSEEK-HOSTED HEALTH CENTER SCHEMATIC
See attached
23
GO health Center Level One
----------------------------------------------------------------------------
------------------------------------------------------------------------
header
------------------------------------------------------------------------
Navigation Family Health Conditions
*etc. *etc
*etc. *etc -Community
-Health
Health/Wellness Health Resources Record
*etc *etc -Feature TBD
*etc *etc -Xxxxxxxxx
Health News
-etcetcetc Red=Fourth level
-etcetcetc Black=second level
-etcetcetc Green=third level
=advertisement
----------------------------------------------------------------------------
GO health Center Level Two (except news)
-------------------------------------------------------------------------------
--------------------------------------------------------------------
header
--------------------------------------------------------------------
Navigation Family Health
. Topic -Community
. Topic -Health
. Topic Record
Related GO . Topic
Links . Topic -Link TBD
Links . etc
Links
-------------------------------------------------------------------------------
GO Health Center Level Three
-------------------------------------------------------------------------------
---------------------------------------------------------------------
header
---------------------------------------------------------------------
Navigation Heart Disease
Links to Links to
Xx Xxxx Dr Koopv
Links to
Dr Koopv
Related GO
Links
Links
Links
Links to
Xx Xxxx
-------------------------------------------------------------------------------
APPENDIX C
(Long List)
***
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
APPENDIX D
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
APPENDIX E
ERROR CORRECTION SCHEDULE
The response times within which XxXxxx.xxx shall remedy and/or correct any
material limitations or errors in any Content Partner Content made available by
or through XxXxxx.xxx that Infoseek brings to XxXxxx.xxx's attention or about
which XxXxxx.xxx otherwise becomes aware are specified below. XxXxxx.xxx shall
acknowledge receipt of the problem description, and, in the time frames
specified below, remedy and/or correct the problem.
Program/Error Severity Levels Problem/Error Correction Time
----------------------------- -----------------------------
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
AMENDED AND RESTATED APPENDIX F TO THE DISTRIBUTION AGREEMENT
FEES AND PAYMENTS
THIS AMENDED AND RESTATED APPENDIX F TO THE DISTRIBUTION AGREEMENT is made as of
the 9th day of April, 1999 by and between Infoseek Corporation, a corporation
duly organized under the laws of California, with its principal place of
business at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000,
hereinafter referred to as "Infoseek", and xxxxxx.xxx, Inc., a corporation
organized under the laws of the State of Delaware with its principal place of
business at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000,
hereinafter referred to as "Content Partner" or "XxXxxx.xxx". This Addendum is
effective as of April 9, 1999 (the "Effective Date")
BACKGROUND
Whereas, Infoseek and xxxxxx.xxx are parties to that certain Distribution
Agreement, dated April 9, 1999 (the "Agreement"). Infoseek and xxxxxx.xxx have
agreed to revise and restate Appendix F to the Agreement in its entirety to
reflect pricing which was agreed to by the parties.
Appendix F is hereby revised and restated as follows:
A. Fees and Payments
1. This Agreement is contingent upon the closing of a financing
transaction (including, without limitation, the proposed initial public offering
of common stock) resulting in aggregate net cash proceeds to Content Partner of
not less than Thirty Million Dollars ($30,000,000) (herein the "Financing"). In
the event the Financing is not completed on or before June 30, 1999, either
party may terminate this Agreement on 30 days prior written notice, provided
such notice is provided prior to August 1, 1999. In the event XxXxxx.xxx is not
successful in completing the Financing and this Agreement is terminated by
either party, XxXxxx.xxx shall pay to Infoseek a nonrefundable payment of One
Million Three Hundred Seventy Thousand Eight Hundred Thirty-Four dollars
($1,370,834) by no later than August 1, 1999 (which shall be in addition to the
One Million Dollars up front payment to be paid upon the Execution Date).
2. XxXxxx.xxx shall pay to Infoseek an up-front nonrefundable payment
of One Million Dollars ($1,000,000) for engineering services due and payable
upon the Execution Date (as defined in Section 9 below) by XxXxxx.xxx. Within 30
days after the close of the Financing, but in no event later than June 30, 1999,
XxXxxx.xxx shall pay Infoseek an additional up-front payment of Two Million
Seven Hundred Fifty-Four Thousand Eight Hundred and Fifteen Dollars
($2,754,815). Such prepayment is attributable to the following components of
this Agreement:
Ecommerce Premier Merchant listing ($1,414,891)
Exclusivity in the Health Center and related content distribution
($2,339,924).
3. In addition, XxXxxx.xxx shall issue 250,000 warrants to Infoseek pursuant to
the form of warrant agreement attached hereto as Appendix I, which agreement
shall be executed concurrently with this Agreement.
4. ***
6. Infoseek (or its agents or Affiliates) shall receive all monies derived from
advertising, product sales, and all other activities and transactions on all
pages of GO Network hosted by Infoseek or its Affiliates. XxXxxx.xxx shall
receive all monies derived from advertising, product sales and all other
activities and transactions on GO Network-Wrapped Pages, except as otherwise
expressly provided herein.
7. During the term of this Agreement, XxXxxx.xxx shall pay to Infoseek *** of
all Net Revenues in excess of *** received by XxXxxx.xxx attributable to all
Commerce Content transactions conducted by Users within the Health Center or
attributable to links on Levels 1, 2 or 3 within the Health Center. As used
herein, Net Revenues means gross revenues received by XxXxxx.xxx for such
transactions reduced by (1) any amounts paid directly for the acquisition of
goods or services intended for resale; (2) any amounts for refunds or other
credits including amounts credited for product returns, bad debt or fraud; and
(3) any applicable sales, use, value added or withholding taxes (other than
income taxes) associated with such sales. As used in this Section 7, Commerce
Content means any products and/or services relating to XxXxxx.xxx Premier
Products (as defined in Appendix G, Section 6), health insurance sales, or
clinical trials made available by XxXxxx.xxx or by an Affiliate Partner on the
GO Network-Wrapped Pages.
8. Infoseek shall have the right to retain a U.S. nationally prominent or other
mutually agreeable independent auditor to whom XxXxxx.xxx shall allow reasonable
access to XxXxxx.xxx's applicable books of account and other for the purpose of
verifying the amounts due and payable to Infoseek under this Agreement. Access
to XxXxxx.xxx's documentation shall be during XxXxxx.xxx's regular business
hours upon at least fifteen (15) business days prior written notice. In the
event that an audit discloses an underpayment of more than five percent (5%) of
the amount due to Infoseek, XxXxxx.xxx shall immediately pay to Infoseek the
amount of such underpayment and shall pay the reasonable costs of such audit.
9. Fees and Payment Schedules for the Infoseek Commerce Area are specified in
Appendix G hereto.
10. All Infoseek invoices are to be mailed to:
xxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
------------------------------
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Attention: Accounts Payable
11. Content Partner Content shall be accessible by Users on the Service within
90 days from the Effective Date (the "Execution Date"). At such time, the
Advertising Agreement by and between Infoseek and xxxxxx.xxx dated February 26,
1999, shall terminate and such termination shall relieve both parties of any
further liability, including but not limited to, the payment of fees thereunder.
Notwithstanding the foregoing, future payments under such Advertising Agreement
shall terminate upon the Effective Date of this Agreement.
(Signature Page Follows)
Except as amended and restated by this Amended and Restated Appendix F
to the Distribution Agreement, the Agreement remains in effect pursuant to its
terms, and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Appendix F to the Distribution Agreement as of the date first written above.
INFOSEEK CORPORATION XXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxx Xxxxxxx
-------------------------------- --------------------------------
Authorized Signature Authorized Signature
Print Name: Xxxxxx Xxxxxx Print Name: Xxx Xxxxxxx
------------------------ ------------------------
Title: General Counsel Title: Vice President, Business
----------------------------- -----------------------------
Development
-----------
Date: May 12, 1999 Date: May 11, 1999
------------------------------ ------------------------------
APPENDIX G
COMMERCE TERMS
1. Definitions
1.1 "Department" means a commerce category designated on and linked from
the home page of the Infoseek Commerce Area, such as Books, Music,
Toys & Games, as further specified in this Appendix G.
1.2 "Infoseek Commerce Area" means the electronic commerce/shopping area
located on the Service also known as "GO SHOP".
1.3 "Commerce Content" means the content provided to Infoseek by
XxXxxx.xxx for placement on the Infoseek Commerce Area relating to
XxXxxx.xxx Premier Products (as defined in Section 6 below) made
available by XxXxxx.xxx or by an Affiliate Partner on the GO Network
Wrapped Pages. Commerce Content may include XxXxxx.xxx's or Affiliate
Partner's trademarks, service marks, logos and related proprietary
materials. As used herein, "Affiliate Partner" means any third party
web site to which XxXxxx.xxx provides a link which allows Users who
follow such link to purchase a product or service.
1.4 "Sub-Department" means a specific topic within a Department, such as
Action Figures under the Toys & Games Department, or Jazz under the
Music Department.
2. Commerce Content and XxXxxx.xxx Site
2.1 XxXxxx.xxx shall provide Infoseek with Commerce Content, to be
displayed on GO Shop in electronic form. Infoseek retains the right to
request removal of any Commerce Content from GO Shop based on the
reasonable determination by Infoseek that the Commerce Content does
not comply with Infoseek's then current advertising or content
guidelines or would cause Infoseek to be in violation of any existing
agreements with third parties (for example, exclusivity agreements
prohibiting the sale of books or music by third party merchants), and
XxXxxx.xxx shall immediately comply with such request. During the term
of this Agreement, Infoseek shall not enter into any agreements with
third parties that would prohibit the sale of prescription drugs, OTC
drugs, or vitamins and nutritional supplements by Content Partner on
GO Shop. Currently, certain areas of GO Shop are operated by Infoseek
utilizing third party technology. In the event Infoseek elects to make
such third party technology available to XxXxxx.xxx directly,
XxXxxx.xxx may be required to agree to additional terms and conditions
regarding use of such third party technology as a condition of
utilizing such technology.
2.2 XxXxxx.xxx will provide Infoseek with all necessary technology and
information required to establish and maintain such Commerce Content
in the Infoseek Commerce Area, at XxXxxx.xxx's sole expense, which in
no event shall exceed commercially reasonable costs.
2.3 XxXxxx.xxx will reasonably cooperate with Infoseek, and any other
third party designated by Infoseek, and provide necessary information
and make commercially reasonable technical changes to its Commerce
Content systems and data feeds to allow the Commerce Content to be
effectively retrieved, searched, and displayed on the Service.
3. Infoseek Commerce Area
Except as expressly set forth in this Agreement, Infoseek retains the right
to adapt or otherwise alter the design, look, and any other attributes of
the Service and Service pages, including the Infoseek
Commerce Area. Infoseek shall have the right, but not the obligation, to
remove, or direct XxXxxx.xxx to remove, from the Commerce Content
information or other material which Infoseek, in its reasonable discretion,
determines to be offensive, in poor taste, or otherwise objectionable.
Notwithstanding the foregoing, XxXxxx.xxx or its Affiliate Partner shall
have the right to control the design, look and any other attributes of
pages served off XxXxxx.xxx or Affiliate Partner servers.
4. Order Fulfillment; Customer Service
4.1 XxXxxx.xxx (or its Affiliate Partner to whom Xx.Xxxx.xxx may delegate
order processing functions) shall be solely responsible for (a)
processing and fulfilling all product and service orders relating to
the Commerce Content, whether the orders are made through the GO
Network-Wrapped Pages or on GO Shop; (b) all accounting with respect
to such orders, and (c) all customer service and support with respect
to such orders, purchases and returns. XxXxxx.xxx or its Affiliate
Partner shall provide all of the foregoing services in the same manner
as it provides such services with respect to orders received by
XxXxxx.xxx in any other manner and with the high quality consistent
with XxXxxx.xxx's name and reputation, and industry standards.
XxXxxx.xxx acknowledges and agrees that it is solely responsible for
the security of any transactions initiated within or relating to the
Commerce Content and for all legal and financial liability relating to
the Commerce Content, including, without limitation the acts or
omissions of Affiliate Partners (except to the extent that such
liability arises from Infoseek's modification of such content or
Infoseek's unauthorized representations to Users concerning such
content).
4.2 a. XxXxxx.xxx shall cooperate and assist Infoseek by answering
questions and complaints regarding the Commerce Content. Each
party shall promptly inform the other party of any event or
circumstance, and provide all information pertaining to such event
or circumstance, related to or arising out of this Agreement which
could lead to a claim or demand against either party by any third
party.
b. In the event Infoseek receives *** complaint for every ***
transactions completed (whether such complaints are in writing,
via telephone or email) concerning XxXxxx.xxx's order fulfillment
or customer service practices, Infoseek shall be entitled, at its
discretion, to permanently remove all Commerce Content relating to
such complaints from the Service (or, pursuant to mutual agreement
of the parties, the Affiliate Partner responsible for such
complaints, if reasonably necessary to terminate future
complaints). Ongoing fees payable by XxXxxx.xxx for inclusion of
the Commerce Content in GO Shop, as specified in Appendix F, shall
remain unchanged unless all Commerce Content is removed from GO
Shop, in which case future fees payable by XxXxxx.xxx for
participation in GO Shop would terminate.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
5. Fees/Revenue Sharing
5.1 During the term of this Agreement, XxXxxx.xxx shall pay to Infoseek ***
Net Revenues received by XxXxxx.xxx attributable to Commerce Content
transactions conducted by Users (I) within GO Shop or (ii) directed to
the GO Network-Wrapped Pages from GO Shop. As used herein, Net Revenues
means gross revenues received by XxXxxx.xxx for such transactions
reduced by (1) any amounts paid directly for the acquisition of goods
or services intended for resale; (2) any amounts for refunds or other
credits including amounts credited for product returns, bad debt or
fraud; and (3) any applicable sales, use, value added or withholding
taxes (other than income taxes) associated with such sales.
5.2 XxXxxx.xxx shall pay such applicable transaction revenues to Infoseek
within thirty (30) days from the end of calendar quarter in which the
revenue accrues. Each payment will be accompanied by a report which
details the payment due for the preceding quarter and the methodology
used to calculate the payment due.
6. Premier Merchant; Department; Sub-Department; Commerce Content; and
Additional Commerce Area Features
6.1 XxXxxx.xxx shall be the Premier Merchant of the following Commerce
Content on GO Shop:
Prescription drugs;
Vitamins and nutritional supplements; and
Over the counter ("OTC") pharmacy products
(herein the "XxXxxx.xxx Premier Products")
As used herein, "Premier Merchant" means that XxXxxx.xxx Premier
Products shall be the only Prescription drugs, Vitamins and OTC
pharmacy products promoted by Infoseek on GO Shop As used herein a
product is "promoted" by Infoseek if it prominently advertised or
marketed by Infoseek on GO Shop. Notwithstanding the foregoing,
prescription drugs, vitamins, and OTC pharmacy products, and
information and content related thereto, may be provided to Users on GO
Shop in response to or pursuant to:
Search queries
Directory Listings
General Merchandise listings
Ad banner displays
6.2 XxXxxx.xxx shall use commercially reasonable efforts to integrate its
Commerce Content, and its order processing and fulfillment
functionality in support of any future Infoseek Commerce Area features,
which may include, without limitation, "wallet" and affinity and
rewards programs.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
APPENDIX H
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
APPENDIX I - WARRANT AGREEMENT
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. NO SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY
OR WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT.
THIS WARRANT MAY NOT BE EXERCISED EXCEPT IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS TO THE REASONABLE SATISFACTION OF THE COMPANY
AND LEGAL COUNSEL FOR THE COMPANY.
STRATEGIC PARTNER WARRANTS
WARRANT TO PURCHASE
250,000 SHARES OF COMMON STOCK
OF
Xxxxxx.xxx, Inc.
A Delaware Corporation
Issued
April 9, 1999
THIS CERTIFIES THAT, for value received, Infoseek Corporation (the
"Warrantholder") is entitled to purchase, on the terms hereof, two hundred fifty
thousand (250,000) shares of common stock (subject to adjustment), par value
$.001 per share (the "Common Stock"), of xxxxxx.xxx, Inc., a Delaware
corporation (the "Company"), at a purchase price and upon the terms and
conditions as set forth herein.
1. EXERCISE OF WARRANT.
The terms and conditions upon which this Warrant may be exercised and the
shares of Common Stock covered hereby (the "Warrant Stock") may be purchased,
are as follows:
1.1. Exercise. This warrant may be exercised in whole or in part as
--------
follows:
(a) this Warrant may be exercised with respect to 150,000 shares
of Common Stock at any time on or after April 9, 2000; and
(b) this Warrant may be exercised with respect to the remaining
100,000 shares of Common Stock at any time on or after April 10, 2001 if
(but only if) neither party has exercised its right to terminate the
Distribution Agreement between the Company and the Warrantholder dated even
herewith (the "Distribution Agreement") pursuant to Section 6.1 thereof on
the second anniversary of the Effective Date of such agreement, and the
Distribution Agreement remains effective and in full force and effect as of
such second anniversary.
Notwithstanding the foregoing, this Warrant may not be exercised under any
circumstances after the first to occur of (1) the termination of the
Distribution Agreement for failure to complete the "Financing" under paragraph
A(1) of Appendix F to the Distribution Agreement, or (2) after 5:00 p.m., San
Francisco, California time on April 9, 2003 (the "Termination Date"), after
which time this Warrant shall terminate and shall be void and of no further
force of effect.
1.2. Exercise Price. The purchase price for the shares of Common Stock to
--------------
be issued upon exercise of this Warrant shall be $21.50 per share, subject to
adjustment as set forth herein (the "Exercise Price").
1.3. Method of Exercise. The exercise of the purchase rights evidenced by
------------------
this Warrant shall be effected by (a) the surrender of this Warrant, together
with a duly executed copy of the form of Election to Purchase attached hereto,
to the Company at its principal office and (b) the delivery of the Exercise
Price multiplied by the number of shares for which the purchase rights hereunder
are being exercised, payable (x) by certified check, corporate check of Infoseek
Corporation, or wire transfer of immediately available funds payable to the
Company's order or (y) on a net basis, such that, without the exchange of any
funds, the Warrantholder receives that number of shares otherwise issuable (or
other consideration payable) upon exercise of this Warrant less that number of
shares of Warrant Stock having an aggregate fair market value (as defined below)
at the time of exercise (i.e., the date a duly executed Election to Purchase is
delivered to the Company) equal to the aggregate Exercise Price that would
otherwise have been paid by the Warrantholder for the shares of the Warrant
Stock issuable. In connection with such exercise the holder shall, if requested
by the Company, include confirmation of the accuracy of the representations set
forth in Section 12 and otherwise as reasonably requested by the Company to
evidence compliance with any applicable securities laws as of the date of
exercise. For purposes of the foregoing, "FAIR MARKET VALUE" of the Warrant
Stock on any date shall be the average of the Quoted Prices of the Common Stock
of the Company for 20 consecutive trading days ending the trading day prior to
such date (if, during such 30-day period, there is a day in which no trades are
reported, such date shall be discarded and the 20-day period extended). The
"Quoted Price" of the Common Stock as reported by Nasdaq or, if the principal
trading market for the Common Stock is then a securities exchange, the last
reported sales price of the Common Stock on such exchange which shall be
consolidated trading if applicable to such exchange, or if neither so reported
or listed, the last reported bid price of the Common Stock. In the absence of
quotation or listing, such determination as to "Quoted Price" shall be made in
good faith by the Board of Directors of the Company.
1.4. Issuance of Shares. In the event that the purchase rights evidenced
------------------
by this Warrant are exercised in whole or in part in accordance with the terms
of this Warrant, a certificate or certificates for the purchased shares shall be
issued to the Warrantholder as soon as practicable. The Warrant Stock shall be
stamped or imprinted with a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. NO SALE OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT THE
PRIOR WRITTEN CONSENT OF THE
-2-
COMPANY AND WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO
THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
ACT."
In the event the purchase rights evidenced by this Warrant are exercised in
part, the Company will also issue to the Warrantholder a new warrant
representing the unexercised purchase rights.
1.5 Exercise of Warrants on Termination Date. If as of the Termination
----------------------------------------
Date the Warrants are in the money based on the cash or other property to be
received, such exercise shall take place automatically with respect to all then
outstanding and exercisable (but not exercised) Warrants (the "Termination Date
Exercise"), on a net exercise basis, immediately prior to the Termination Date;
provided, however, that the Company may condition such exercise on the delivery
by the Warrantholder of a duly completed Election to Purchase and the reasonable
satisfaction of the Company that all applicable securities laws have been
complied with, which the Company shall give notice to the Warrantholder of
within ten (10) days prior to the Termination Date. No such Termination Date
Exercise shall take place if such issuance would not comply with applicable
securities laws, whereupon the Termination Date shall occur as scheduled.
2. CERTAIN ADJUSTMENTS.
-------------------
2.1. Stock Dividends. If at any time while this Warrant remains
---------------
outstanding and unexpired, the Company pays a dividend or makes a distribution
with respect to the Common Stock payable in shares of Common Stock, then the
Exercise Price shall be adjusted, as of the record date of stockholders
established for such purpose (or if no such record is taken, as at the date of
such payment or distribution), to that price determined by multiplying the
Exercise Price in effect immediately prior to such payment or distribution by a
fraction (A) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(B) the denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution. The Warrantholder
shall thereafter be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of shares of Common Stock (calculated to the nearest
whole share) obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of shares of Common Stock issuable upon
the exercise hereof immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment. The
provisions of this Section 2.1 shall not apply under any of the circumstances
for which an adjustment is provided under Sections 2.2, 2.3 or 2.4.
2.2. Mergers, Consolidations or Sale of Assets. If at any time while this
-----------------------------------------
Warrant remains outstanding and unexpired, there shall be a capital
reorganization of the shares of the Company's capital stock (other than a
combination, reclassification, exchange or subdivision otherwise provided for
herein), or a merger or consolidation of the Company with or into another
corporation in which the Company is not the surviving corporation (collectively,
a "Corporate
-3-
Transaction"), then lawful provision shall be made so that the Warrantholder
shall thereafter be entitled to receive, upon exercise of this Warrant, during
the period specified in this Warrant and upon payment of the Exercise Price then
in effect, the number of shares of stock or other securities or property of the
successor corporation resulting from such Corporate Transaction to which a
holder of the securities deliverable upon exercise of this Warrant would have
been entitled under the provisions of the agreement in such Corporate
Transaction if this Warrant had been exercised immediately prior to such
Corporate Transaction. Appropriate adjustment (as determined in good faith by
the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant with respect to the rights and interests of the
Warrantholder after the Corporate Transaction to the end that the provisions of
this Warrant (including adjustment of the purchase price then in effect and the
number of shares of securities issuable under this Warrant) shall be applicable
after the Corporate Transaction, as near as reasonably may be, in relation to
any shares or other property deliverable after the Corporate Transaction upon
exercise of this Warrant.
2.3. Reclassification. If the Company at any time shall, by subdivision,
----------------
combination or reclassification or securities or otherwise, change any of the
securities issuable under this Warrant into the same or a different number of
securities of any other class or classes, this Warrant shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as a result of such change with respect to the securities issuable
under this Warrant immediately prior to such subdivision, combination,
reclassification or other change.
2.4. Subdivision or Combination of Shares. If at any time while this
------------------------------------
Warrant remains outstanding and unexpired, the number of shares of Common Stock
outstanding is decreased by a combination of the outstanding shares of Common
Stock, then the Exercise Price shall be proportionately increased in the case of
a combination of such shares, or shall be proportionately decreased in the case
of a subdivision of such shares, and the number of shares of Common Stock
issuable upon exercise of the Warrant shall thereafter be adjusted to equal the
product obtained by multiplying the number of shares of Common Stock purchasable
under this Warrant immediately prior to such Exercise Price adjustment by a
fraction (A) the numerator of which shall be the Exercise Price immediately
prior to such adjustment, and (B) the denominator of which shall be the Exercise
Price immediately after such adjustment.
2.5. Liquidating Dividends, Etc. If the Company at any time while the
--------------------------
Warrant remains outstanding and unexpired makes a distribution of its assets to
the holders of its Common Stock as a dividend in liquidation or by way of return
of capital or other than as a dividend payable out of earnings or surplus
legally available for dividends under applicable law or any distribution to such
holders made in respect of the sale of all or substantially all of the Company's
assets (other than under the circumstances provided for in the foregoing
Sections 2.1 through 2.4), the holder of this Warrant shall be entitled to
receive upon the exercise hereof, in addition to the shares of Common Stock
receivable upon such exercise, and without payment of any consideration other
than the Exercise Price, an amount in cash equal to the value of such
distribution per share of Common Stock multiplied by the number of shares of
Common Stock which, on the record date for such distribution, are issuable upon
exercise of this Warrant (with
-4-
no further adjustment being made following any event which causes a subsequent
adjustment in the number of shares of Common Stock issuable upon the exercise
hereof), and an appropriate provision therefor should be made a part of any such
distribution. The value of a distribution which is paid in other than cash shall
be determined in good faith by the Board of Directors.
2.6. Notice of Adjustments. Whenever any of the Exercise Price or the
---------------------
number of securities purchasable under the terms of this Warrant at that
Exercise Price shall be adjusted pursuant to Section 2 hereof, the Company shall
promptly notify the Warrantholder in writing of such adjustment, setting forth
in reasonable detail the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise
Price and number of shares of Common Stock or other securities purchasable at
that Exercise Price after giving effect to such adjustment. Such notice shall
be mailed (by first class and postage prepaid) to the registered Warrantholder.
In the event of:
(a) The taking by the Company of a record of the holders of any class
of securities of the Company for the purpose of determining the holders thereof
who are entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right for which no
adjustment is required by the operation of this Section 2,
(b) Any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of all
or substantially all of the assets of the Company to any other person or any
consolidation or merger involving the Company for which no adjustment is
required by the operation of this Section 2, or
(c) Any voluntary or involuntary dissolution, liquidation, or
winding-up of the Company,
the Company will mail to the Warrantholder, at its last address at least ten
(10) days prior to the earliest date specified therein as described below, a
notice specifying:
(i) The date on which any such record is to be taken for the
purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right; and
(ii) The date on which any such reorganization, reclassification,
transfer, consolidation, merger, dissolution, liquidation or winding-up is
expected to become effective and the record date for determining
shareholders entitled to vote thereon.
Failure to give any notice required under this Section 2.6, or any defect
in such notice, shall not affect the legality or validity of the underlying
corporate action taken or transaction entered into by the Company.
-5-
3. FRACTIONAL SHARES.
-----------------
No fractional shares shall be issued in connection with any exercise of
this Warrant. In lieu of the issuance of such fractional share, the Company
shall make a cash payment equal to the then fair market value of such fractional
share as determined under Section 1.3.
4. RESERVATION OF COMMON STOCK.
---------------------------
The Company shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the exercise of this Warrant, a sufficient number of shares of Common
Stock to effect the exercise of the entire Warrant and if at any time the number
of authorized but unissued shares of Common Stock shall not be sufficient to
effect the exercise of the entire Warrant, in addition to such other remedies as
shall be available to the holder of this Warrant, the Company will use its
reasonable efforts to take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purposes.
5. PRIVILEGE OF STOCK OWNERSHIP.
----------------------------
Prior to the exercise of this Warrant and the issuance to the Warrant
Holder of certificates representing the resulting shares of Common Stock, and
except as otherwise provided herein, the Warrantholder shall not be entitled, by
virtue of holding this Warrant, to any rights of a Stockholder of the Company,
including (without limitation) the right to vote, receive dividends or other
distributions or be notified of Stockholder meetings, and such holder shall not
be entitled to any notice or other communication concerning the business or
affairs of the Company, except as required by law.
6. LIMITATION OF LIABILITY.
-----------------------
No provision hereof, in the absence of affirmative action by the holder
hereof to purchase the securities issuable under this Warrant, and no mere
enumeration herein of the rights of privileges of the holder hereof, shall give
rise to any liability of such holder for the purchase price or as a Stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
7. TRANSFERS AND EXCHANGES.
-----------------------
This Warrant may be transferred or assigned in whole or in part provided
such transfer complies with applicable federal and state securities laws and the
requirements of any legend on this Warrant.
8. PAYMENT OF TAXES.
----------------
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The Company shall pay all stamp or similar issue or transfer taxes payable
in respect of the issue or delivery of the securities issuable under this
Warrant. The Company shall not be required, however, to pay any tax or other
charge imposed in connection with any transfer involved in the issue of any
certificate for shares of the securities issuable under this Warrant in any name
other than that of the Warrantholder, and in such case, the Company shall not be
required to issue or deliver any stock certificate until such tax or other
charge has been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
9. NO IMPAIRMENT OF RIGHTS.
-----------------------
The Company hereby agrees that it will not, through the amendment of its
Certificate of Incorporation or otherwise, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate in order to protect the rights
of the Warrantholder against impairment.
10. SUCCESSORS AND ASSIGNS.
----------------------
The terms and provisions of this Warrant shall be binding upon the Company
and the Warrantholder and their respective successors and assigns.
11. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
-------------------------------------------------
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and in case of loss,
theft or destruction, upon receipt of an indemnity or security reasonably
satisfactory to the Company, and upon reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will make and deliver a new warrant of
like tenor and dated as of such cancellation, in lieu of this Warrant.
12. SECURITIES LAW MATTERS.
----------------------
Warrantholder represents to the Company as follows:
(a) the Warrants and Common Stock to be acquired by Warrantholder
pursuant hereto will be acquired for its own account and not with a view to, or
intention of, distribution thereof in violation of the Securities Act of 1933
(the "SECURITIES ACT") or any applicable state securities laws, and such
securities will not be disposed of in contravention of the Securities Act of any
applicable state securities laws;
(b) the Warrantholder understands that (a) the Warrants and Common
Stock issuable on exercise have not been registered under the Securities Act,
nor qualified under the securities laws of any other jurisdiction, (b) such
securities cannot be resold unless they subsequently are registered under the
Securities Act and qualified under applicable state securities laws, unless the
Company determines that exemptions from such registration and
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qualification requirements are available, and (c) the Warrantholder has no right
to require such registration or qualification;
(c) Warrantholder is familiar with the term "accredited investor" as
defined in Rule 501 under the Securities Act and investor is an "accredited
investor" within the meaning of such term in Rule 501 under the Securities Act;
(d) Warrantholder is sophisticated in financial matters and the
market for Internet companies and is able to evaluate the risks and benefits of
the investment in the Warrants and Common Stock issuable on exercise;
(e) Warrantholder is able to bear the economic risk of its investment
in the Warrants and the Common Stock issuable on exercise for an indefinite
period of time; and
(f) Warrantholder has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of securities and
has had full access to such other information concerning the Company as investor
has requested.
13. SATURDAYS, SUNDAYS, HOLIDAYS.
----------------------------
If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall be a Saturday or Sunday or shall
be a legal holiday, then such action may be taken or such right may be exercised
on the next succeeding day not a legal holiday.
14. GOVERNING LAW.
--------------
This Warrant shall be construed, interpreted, and the rights of the Company
and the Warrantholder determined in accordance with the internal laws of the
State of Delaware, without regard to the conflict of laws provision thereof.
15. BENEFITS OF THIS WARRANT.
-------------------------
Nothing in this Warrant shall be construed to give any person other than
the Company and the registered Warrantholder any legal or equitable right,
remedy or claim.
16. COUNTERPARTS.
-------------
This Warrant may be exercised in counterpart with each constitution; an
original and together constituting but one and the same Warrant.
(signature page follows)
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IT WITNESS WHEREOF, xxxxxx.xxx, Inc. has caused this Warrant to be duly
executed and delivered to the Warrantholder identified below on the date first
set forth above.
xxxxxx.xxx, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer
Dated: April 9, 1999
Acknowledged and Accepted:
--------------------------
Infoseek Corporation
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: CEO
Address for Notice:
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
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APPENDIX J
Guidelines for Advertising on GO Network
The advertising environment must be appropriate in the context of the GO
Network. This "advertising environment" includes the ad unit itself, the
advertiser's web site and direct links off of it, the specific destination URL,
interstitial or buffer pages, and all other elements that define the guest's
online experience.
An advertising environment or advertising materials of the types enumerated in
the first grouping below will not be accepted and materials may also be
rejected, at the discretion of Infoseek
What is clearly not appropriate?
. Hard liquor-related (xxxxx goods, white goods, etc)
. Tobacco-related (cigarettes, cigars, pipes, chewing tobacco, etc)
. Guns/weapons-related (firearms, bullets, etc)
. Drugs-related (marijuana, etc)
. Gambling-related (casinos, lotteries, etc)
. Pornographic-related (sex sites)
. Crime-related (dealing with the notorious)
. Death-related (funeral homes, mortuaries)
. Graphic violence (including certain types of game sites)
What may also be considered by Infoseek as inappropriate?
. Involves what Infoseek considers to be a direct business competitor of GO
Network.
. Involves unauthorized or unapproved use of GO Network creative assets
(including ESPN talent, ABC logos, Disney characters, movie logos, theme
park imagery, names and marks used in GO Network).
. Involves an advertiser in a category where the privilege of exclusivity has
previously been sold to another advertiser.
. Involves a copy or parody of current or past GO Network product.
. Politics-related (lobbyists, PAC sites, political campaigns)
. Non-hard liquor related (beer, non-alcoholic beer, wine, champagne, etc.)
. Other "controversial topics" (politics, social issues, etc.) as determined
by Infoseek in its discretion
. Involves an implied affiliation or favored status with GO Network.
. Involves unreasonable or highly unlikely product or service claims.
Solicitation of Personal Information: The advertiser's web site should not
require guest registration prior to site access when linking to such site
through the banner. The destination URL should not be a registration screen,
sweepstakes entry screen or other screen that immediately solicits personal
information from a site guest.
Where information is requested:
. Any solicitation of personal information must include a clear request that
children below the age of 13 years seek parental permission before
providing any such information.
. The advertiser must clearly explain to the guest how the advertiser will
utilize the personal information collected.
. Only certain functionality or premium content areas will require the user
to submit personal information.
Infoseek welcomes the opportunity to work closely with advertisers and agencies,
to insure that ad content and web sites meet standards for advertising
applicable to GO Network.
Immediately upon determining that an advertisement does not meet these ad
guidelines, that ad will be removed from GO Network.
All advertisers, agents or representatives placing ads on behalf of or with GO
Networks must adhere to these advertising guidelines. Infoseek reserves the
right of refusal for any advertising placement for any reason, whether due
to content, technological, legal, privacy or other considerations.
OTHER GUIDELINES:
NO "POP UP" ADS
