EXHIBIT 10.20
EXECUTION COPY
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AGREEMENT
THIS AGREEMENT ("Agreement") is made and effective as of September 27, 1999
(the "Effective Date") by and between AltaVista Company, a Delaware corporation
with principal business offices at 000 Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx
00000 (together with its Affiliates, "AltaVista"), and XxxxxxXxxxxxx.xxx, Inc.,
a California corporation with principal business offices at 0000 Xxxxxxxxxx Xx.,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000 ("HealthCentral").
RECITALS
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WHEREAS, HealthCentral is the owner and provider of health related Web
sites, which provide access to health content and information appearing on the
Internet at xxx.XxxxxxXxxxxxx.xxx. For purposes of this Agreement, HealthCentral
Content, as defined herein, shall appear on Web pages on the AltaVista
Platforms, as defined herein, with both AltaVista brand features and
HealthCentral brand features; and
WHEREAS, as used in this Agreement, "Web" refers to the World Wide Web,
that part of the Internet designed to allow easier navigation of the network of
computers through the use of graphical user interfaces and hypertext links
between different addresses. A "Web page" or "page" or a "Web site" permits an
end user to view and interact with companies on the Web by displaying the
content through the aforementioned graphical interfaces. "Internet" means a
global network of interconnected computer networks, each using the Transmission
Control Protocol/Internet Protocol and/or such other standard network
interconnection protocols as may be adapted from time to time; and
WHEREAS, AltaVista also maintains and/or manages certain Web pages which
may be delivered to users worldwide via email, desktop "channels" or Internet
"push" technologies which may incorporate content supplied by AltaVista by third
parties for the purpose of providing value to AltaVista users and providing
access to the content, products and/or services of such third parties; and
WHEREAS, AltaVista is also in the business of developing Web-page
platforms, providing Web-based search capabilities, and developing and serving
other Web sites on behalf of its customers and business partners; and
WHEREAS, AltaVista and its Affiliates customarily enter into third party
agreements that provide for customization of one or more AltaVista Platforms.
The customized AltaVista Platforms may be branded using third parties' names, or
co-branded with any combination of AltaVista's, AltaVista's Affiliates and third
parties' names. Pursuant to the terms and conditions of this Agreement, through
the process of AltaVista Platforms customization, any amount of content,
advertising or other features may be modified, added or deleted; and
CERTAIN INFORMATION ON THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
WHEREAS, AltaVista desires to license the HealthCentral Content from
HealthCentral for its AltaVista Platforms and AltaVista and HealthCentral wish
to distribute the Content through one or more AltaVista Platforms.
NOW THEREFORE, in consideration of the agreements, covenants and conditions
set forth herein, intending to be legally bound, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following terms will have the
following specified meanings:
1.1 "Above the Fold" means situated within the portion of a page that
is designed to be visible on a standard computer screen at a resolution of [*]
(such resolution to be updated by AltaVista at its sole discretion in good faith
and to be consistent with the design of the AltaVista Platform throughout the
Term as appropriate) without requiring the user to scroll horizontally or
vertically through the page.
1.2 "Advertising Impression" means (i) a banner or other GIF
advertisement for HealthCentral and/or any of its Affiliates; (ii) a Text Link
Advertisement to the HealthCentral Site; or (iii) a Contextual Advertising Unit.
1.3 "Affiliate" means, with respect to a party, any Person that,
directly or indirectly, Controls, or is Controlled by, or is under common
Control with, such party.
1.4 "AltaVista Health Channel" means that area of the AltaVista
Platform that is accessed from the "Health" link (or other comparable link
regardless of name that provides access to the AltaVista Health Channel) on the
AltaVista Platform Home Page.
1.5 "AltaVista Health Channel Home Page" means with respect to the
AltaVista Health Channel, the first page that is displayed to the user within
the Channel.
1.6 "AltaVista Marks" means the AltaVista trademarks, service marks,
logos and domain names.
1.7 "AltaVista Platform" means a generic set of domestic Web pages,
and any domestic Mirror Site, that may also function together as a Web site.
The AltaVista Platforms may contain any or all of the following domestic sites:
an Internet index, a search tool, advertising, or any other feature that might
be desirable on a Web homepage. As used herein, the term "AltaVista Platforms"
shall include generic and customized AltaVista Platforms, including but not
limited to domestic sites and channels, such as an XxxxXxxxx.xxx, My AltaVista,
XX.xxx, Xxxxxxx.xxx, the AltaVista Channels, My AV, Xxxxxxxx.xxx and Xxx0.xxx.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
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1.8 "AltaVista Search Results Page" means the page on the AltaVista
Platform containing the results of a search query entered by a User.
1.9 "AltaVista Platform Home Page" means with respect to the
AltaVista Platform, the page that is displayed to the user when the URL
xxx.xxxxxxxxx.xxx is entered.
1.10 "Co-Branded Page" means a Web page that has HealthCentral
Content and/or the Health Central Xxxx in the Masthead.
1.11 "Contextual Advertising Unit" means an advertisement whose
subject matter is relevant to the content to which it is adjacent and that links
to a relevant page on the HealthCentral Site.
1.12 "Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether by contract or through the ownership of voting securities,
including the ownership of more than fifty percent (50%) of the equity,
partnership or similar interest in such Person.
1.13 "Damages" means judgments, losses, deficiencies, damages,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses).
1.14 "HealthCentral Competitors" means the companies listed on
Schedule 1.14 which are directly competitive to the business of HealthCentral.
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1.15 "HealthCentral Content" means the content set forth on Schedule
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1.15, as may be amended from time to time by mutual agreement of the Parties.
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1.16 "HealthCentral Xxxx" means the xxxx set forth on Schedule 1.16.
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1.17 "HealthCentral Site" means the site currently located at
xxxxxxxxxxxxx.xxx any xxxxxxxxxxxxx.xxx network sites, any Mirror Site and any
site owned or controlled by HealthCentral or its Affiliates that provides health
related content and/or information.
1.18 "including" or "include," when used herein, shall be deemed to be
followed by the words "without limitation."
1.19 "Masthead" means the top area of each page within the AltaVista
Health Channel containing the branded name for the Channel. An example of the
current Masthead is set forth on Schedule 1.19.
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1.20 "Mirror Site" means an Internet site that (a) contains the exact
form and content of a site, (b) is located at a geographic location distinct
from a site, and (c) is created for the purpose of improving the performance of
and accessibility to a site.
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1.21 "Other AltaVista Channels" means channels other than the Health
Channel on the AltaVista Platform that, in AltaVista's sole discretion, relate
to health, including but not limited to, children, family, sports, fitness,
nutrition, men and women.
1.22 "Party" or "Parties" means each of AltaVista and any of its
Affiliates and HealthCentral and any of its Affiliates.
1.23 "Person" means any individual, corporation, partnership, limited
liability company, trust, association or other entity or organization, including
any governmental or political subdivision or any agency or instrumentality
thereof.
1.24 "Search Partner Tile" means an advertisement on the AltaVista
Search Results Page of approximately 88 pixels by 31 pixels.
1.25 "Start Date" means the earlier of (a) launch of the AltaVista
Health Channel and (b) January 15, 2000.
1.26 "Term" shall have the meaning set forth in Section 10.1.
1.27 "Text Link Advertisement" means a text link on the AltaVista
Platform that is not located or placed within any health content provided by
HealthCentral.
1.28 "Third Party" means any Person that is not a party hereto or a
wholly owned Affiliate of a party hereto.
1.29 "User Data" means all data entered by a user or otherwise
relating to a user's experience on a site, including demographic data and e-
commerce activity.
ARTICLE II
CO-BRANDING AND DESIGN
2.1 Masthead. HealthCentral hereby grants to AltaVista a non-
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exclusive, worldwide, royalty free, license for the Term to incorporate the
HealthCentral Xxxx within the Masthead. AltaVista shall display the Masthead on
every page of the AltaVista Health Channel; provided, however, that the
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HealthCentral Xxxx shall only be included in the Masthead with respect to all
AltaVista Health Channel pages that feature HealthCentral Content. [*] on the
design of the Masthead, and the incorporation of the HealthCentral Xxxx within
the Masthead.
2.2 Channel Design. During the Term of this Agreement, [*]
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the visual appearance of (a) the AltaVista Health Channel Home Page and (b) any
page within the AltaVista Health Channel containing HealthCentral Content;
provided, however, AltaVista shall in good faith make the final determination
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with respect to design decisions (except the initial design), and AltaVista
shall make reasonable efforts that such design shall be consistent with the rest
of the AltaVista Platform.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTION.
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2.3 Return Links. HealthCentral shall display a return link,
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subject to design specifications, to the AltaVista Health Channel on: (a) all
pages of the HealthCentral Site viewed by a user who originated from a page on
the AltaVista Health Channel; and (b) any and all subsequent pages of the
HealthCentral Site viewed by such user. Such link shall return the user to the
page on the AltaVista Health Channel from which the user initially linked to the
HealthCentral Site. The parties shall agree on the minimum size of such return
link.
ARTICLE III
USE OF HEALTHCENTRAL CONTENT
3.1 Grant of License. HealthCentral hereby grants to AltaVista a
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non-exclusive, worldwide, royalty free license for the Term, to display and
distribute the HealthCentral Content on the AltaVista Health Channel, and to
make such copies as are necessary to make such display and distribution.
HealthCentral shall have the obligation, at its own expense, to obtain all
necessary Third Party rights and licenses to make the foregoing grant of rights
to AltaVista.
3.2 Transmission and Timeliness of Content. The protocols for
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transmitting the HealthCentral Content from HealthCentral to AltaVista are set
forth on Schedule 3.2. HealthCentral shall ensure that substantially all of the
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HealthCentral Content is delivered on a timely basis such that AltaVista is in
possession of the HealthCentral Content, (a) prior to such HealthCentral Content
being provided to any Third Party, and (b) [*] after such HealthCentral Content
is displayed on the HealthCentral Site.
3.3 Use of Content. AltaVista shall cooperate with HealthCentral
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regarding the placement and use of the HealthCentral Content, provided that
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AltaVista shall make the final determination regarding any Content placement and
use issues. AltaVista shall have no obligation to use every item of the
HealthCentral Content, and may edit individual HealthCentral Content items in
its sole discretion within the guidelines of Schedule 3.3 (which shall be
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updated and mutually agreed among the Parties every ninety (90) days throughout
the Term of this Agreement) in order to meet AltaVista Platform format
requirements; provided, however, AltaVista shall have the right to edit the
headlines and develop abstracts and summaries of any HealthCentral Content.
3.4 Editorial Control of the Content. HealthCentral shall have
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complete editorial control over the topics covered by, and creation of, the
HealthCentral Content, provided that AltaVista shall have reasonable input into
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the selection of topics covered by HealthCentral.
3.5 Archive. During the Term, and subject to the terms of any Third
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Party content license agreements with HealthCentral, AltaVista shall have the
right to archive any of the HealthCentral Content including current and future,
provided by HealthCentral to AltaVista hereunder, as provided in Schedule 3.3,
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and to provide users with the ability to search for and retrieve HealthCentral
Content that was previously displayed on the AltaVista Health Channel.
AltaVista shall destroy such archived content promptly following the expiration
or termination of
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
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this Agreement. AltaVista shall promptly comply with any good faith request by
HealthCentral to remove archived HealthCentral Content as necessary for
HealthCentral to comply with its Third Party agreements.
3.6 Content Quality. HealthCentral shall use reasonable efforts to
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ensure that, throughout the Term, the quality of the HealthCentral Content is
comparable to the content offered on the sites of the HealthCentral
Competitors (including, timeliness,); provided that the quality of the
HealthCentral Content shall always be at least as high as it exists as of the
Effective Date. HealthCentral acknowledges that a breach of this Section 3.6
shall give AltaVista a right to terminate this Agreement; provided, however,
that HealthCentral may have an opportunity to cure such breach within seventy
five (75) days after receiving a termination notice from AltaVista.
3.7 Exclusivity. HealthCentral shall be the exclusive health content
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provider for the AltaVista Health Channel and throughout the AltaVista Platform;
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provided that in the event that AltaVista requests health-related content not
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then-currently provided by HealthCentral, AltaVista shall provide HealthCentral
with a reasonably detailed written description of the content requested
("Content Notice'). HealthCentral shall have a [*] to provide such content. In
the event HealthCentral is unable to make such content available to AltaVista
commencing on or before [*], AltaVista may obtain such content from a Third
Party (including any of the HealthCentral Competitors listed on Schedule 1.14),
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and thereafter (i) HealthCentral shall have no further right to
provide the content requested in the Content Notice, and (ii) AltaVista shall
have no further obligation to HealthCentral with respect to such content
AltaVista shall in good faith use its reasonable efforts to integrate any
content received from a Third Party into the AltaVista Health Channel consistent
with the then current design of the AltaVista Health Channel.
In the event AltaVista creates, develops, and maintains additional
channels with Third Parties within the AltaVista Platform, which contain health
related content, AltaVista shall in good faith use its reasonable efforts to
utilize content generated by HealthCentral for such other channels, unless such
content is not substantially similar to the content offered by such Third Party.
AltaVista shall have the right to incorporate any and all headline
health related news stories delivered to AltaVista by nationally or
internationally recognized newspaper, news source, or media company, on the
AltaVista Health Channel so long as such content is not available by
HealthCentral on a timely basis.
3.7 International Opportunities. The parties hereby acknowledge that
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the terms and conditions of this Agreement shall relate only to the domestic
versions of AltaVista Health Channel and the AltaVista Platform. However, as
AltaVista develops and operates international Web sites or channels with
respect to international content, information, search or otherwise, AltaVista
shall in good faith use its reasonable efforts to provide HealthCentral an
opportunity to first negotiate the terms and conditions of a business
relationship with the AltaVista entity or
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
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division operating and/or developing such Web sites. In the event
HealthCentral is not able to negotiate the terms and conditions with such
AltaVista entity, HealthCentral shall have a right of first refusal to at
least match the terms and conditions and breadth and depth of content,
including, but not limited to amount of content, timeliness of content,
quality of writing, and topics covered, offered by a Third Party; provided,
however, if HealthCentral cannot at least match such terms, conditions, and
content, the AltaVista entity or division operating and/or developing such
international Web site may enter into an agreement with such Third Party. This
Section 3.7 in its entirety is subject to the approval of each AltaVista
entity or division operating and/or developing any such Web sites and
AltaVista shall use its best efforts to obtain such approvals within thirty
(30) days of the Effective Date.
ARTICLE IV
HEALTHCENTRAL ADVERTISING
4.1 Contextual Advertising Units. Each Co-Branded Page on the
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AltaVista Health Channel shall contain at least one Contextual Advertising Unit.
The design, size and placement of the Contextual Advertising Units shall be
subject to mutual approval of the Parties; provided, that such Units shall
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always be displayed Above the Fold and that such Units shall contain up to three
links. These links may connect to any web site in the XxxxxxXxxxxxx.xxx
network. In addition, such links may contain at most one (1) sponsorship
textual attribution with respect to only such sponsors name (i.e. "sponsored by
[name of company or name of brand]); provided, however, that such links shall
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not (i) be allowed to appear on the AltaVista Health Channel Home Page, and (ii)
link directly to such sponsor. In connection with any sponsorship textual
attribution, (i) AltaVista shall every ninety (90) days during the Term of this
Agreement provide a list of [*] that HealthCentral may not be allowed to sell
any textual sponsorships to such sponsors and (ii) HealthCentral shall provide
AltaVista with fourteen (14) days notification prior to any sponsorship
placement of any and all sponsors in which HealthCentral intends to sell any
textual sponsorships.
4.2 Allocation of Advertising Impressions During Term. AltaVista
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shall use its best efforts to display HealthCentral Advertising Impressions
evenly on a monthly basis pursuant to the following schedule during the Term:
(a) During the first twelve months after the Start Date ("Year
1"), [*] Advertising Impressions;
(b) During the second twelve month period after the Start Date
("Year 2"), [*] Advertising Impressions; and
(c) During the third twelve month period after the Start Date
("Year 3"), [*] Advertising Impressions.
4.3 Allocation of Advertising Impressions Across the AltaVista
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Platform.
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(a) Year One. The guaranteed Advertising Impressions during
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Year 1, set forth in Section 4.2 above, shall be distributed
among the AltaVista Home Page, the AltaVista Search Results
Page, the AltaVista Health Channel, and Other AltaVista
Channels as follows:
AltaVista Home Page
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(i) Advertisement GIFS and text links: [*] impressions
AltaVista Search Results Page (when "Health" or health-
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related keywords are included as a query):
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(i) Banners: [*] impressions
(ii) Search Partner Tiles: [*] impressions
AltaVista Health Channel:
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(i) Banners: [*] impressions
(ii) Contextual Advertising Units: [*] impressions
Other AltaVista Channels or Directories (categorized search
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result listings):
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(i) Banners: [*] impressions.
(b) Year Two. The number and distribution of Advertising
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Impressions during Year 2 shall be [*] of those set forth
above in Section 4.3(a) for Year 1, subject to revision by
mutual agreement of the Parties.
(c) Year Three. The number and distribution of Advertising
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Impressions during Year 3 shall be [*] of those set forth
above in Section 4.3(b) for Year 2, subject to revision by
mutual agreement of the Parties.
4.4 Accounting. In determining the number of Advertising Impressions
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displayed by AltaVista pursuant to Section 4.2:
(a) A minimum of [*] of the Advertising Impressions shall be from
pages containing only one Advertising Impression;
(b) A maximum of [*] of the Advertising Impressions may be from pages
containing two Advertising Impressions;
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(c) A maximum of [*] of the Advertising Impressions may be from pages
containing three or more Advertising Impressions;
(d) Additional Advertising Impressions (beyond those permitted by
Sections 4.4(b) and (c) from pages with more than one Advertising
Impressions may not be credited towards the make up of any
shortfalls (as provided for in Section 7.3) or the Performance
Thresholds in Section 8.2.
(e) The inclusion of the HealthCentral Xxxx in the Masthead pursuant
to Section 2.1 shall not be counted as an Advertising Impression.
4.5 Location. All HealthCentral Advertising Impressions shall appear
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above the Fold.
4.6 Monitoring and Reporting; Reallocation. AltaVista shall monitor
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the number of HealthCentral Advertising Impressions, and provide written reports
thereof, including number of impressions and number of visitors to
HealthCentral, on a weekly basis, as appropriate, consistent with AltaVista's
reporting policies. AltaVista and HealthCentral shall mutually agree to on any
plans to reallocate Advertising Impressions between banners and Contextual
Advertising Units and to reposition Advertising Impressions within the AltaVista
Platform, where available, as necessary in order to at least meet the
requirements of Section 4.2 and maximize the performance hereunder.
4.7 Advertising of HealthCentral Competitors. AltaVista shall not
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display any advertisements of any HealthCentral Competitor on the AltaVista
Health Home Page or any page throughout the AltaVista Platform, containing
HealthCentral Content. Subject to the foregoing, there shall be no other limit
on the type or number of advertisements that AltaVista may display within the
AltaVista Platform, including within the AltaVista Health Channel HealthCentral
may update the list of HealthCentral Competitors with other companies
competitive to HealthCentral once every 3 months during the Term, upon thirty
(30) days notice to AltaVista, provided that the list may never contain more
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than seven (7) companies.
4.8 Deep Links to HealthCentral Site. AltaVista shall configure the
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navigation of the AltaVista Health Channel such that no more than the third
click from the AltaVista Health Homepage will bring a user to a related page on
the HealthCentral Site.
ARTICLE V
E-COMMERCE
5.1 E-commerce Business Model. The Parties shall mutually agree to
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jointly create and develop an e-commerce business model with respect to the
AltaVista Health Channel within ninety (90) calendar days of the Effective Date
[*].
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ARTICLE VI
DATA RIGHTS
6.1 AltaVista Data. AltaVista shall own all demographic and e-
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commerce User Data collected on the AltaVista Health Channel. AltaVista shall
make available to HealthCentral, subject to AltaVista's privacy policies and
applicable law, and Third Party obligations, User Data from those pages of the
AltaVista Health Channel containing HealthCentral Content, solely for
HealthCentral's own use. HealthCentral shall not sell, license or otherwise
distribute such User Data to any Third Party.
6.2 HealthCentral Data. HealthCentral shall own all User Data
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collected on the HealthCentral Site.
ARTICLE VII
FEES AND PAYMENTS
7.1 Initial Fee. Within seven (7) calendar days after the Effective
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Date and upon mutual agreement of the initial AltaVista Health Channel design,
HealthCentral shall pay AltaVista a non-refundable initial fee (the "Initial
Fee") of one million dollars ($1,000,000). In no event shall the Initial Fee
be paid after September 30, 1999.
7.2 Annual Fees. During the Term, HealthCentral shall make annual
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cash payments to AltaVista as set forth below. Such payments for each year
indicated are payable in equal monthly installments during that year, as
follows:
(a) During Year 1, [*];
(b) During Year 2, [*]; and
(c) During the Year 3, [*].
The first such payment shall be due on the Start Date, and subsequent payments
shall be due on the first day of each month thereafter.
7.3 Fee Reduction. In the event that AltaVista delivers [*] or less
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of the guaranteed number of Advertising Impressions set forth in Sections 4.2
and 4.3 (prorated evenly on a monthly basis over the twelve (12) month period),
for the first six month period or second six month period of any year, then
AltaVista shall have seventy-five (75) calendar days following the end of such
six month period to make up the shortfall. For purposes of this Section, "to
make up the shortfall" shall mean that AltaVista shall have delivered one
hundred (100%) percent of the prorated number of Advertising Impressions due for
such
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seventy-five day period, plus additional Advertising Impressions in an amount
equal to the number of Advertising Impressions which AltaVista failed to deliver
during the six month period in question. In the event that AltaVista has failed
to make up the shortfall, then the monthly fees payable during the six months
following the seventy-five (75) day period shall be reduced by [*].
In the event AltaVista makes up any shortfall and as a result, the
guaranteed number of Advertising Impressions is greater than [*] and less than
one hundred (100%) percent during any six month period and corresponding cure
period (the "Shortfall Spread"), the Shortfall Spread shall be carried forward
to any following period on a cumulative basis with potential corresponding fee
reduction or termination (as provided for above) until AltaVista makes up any
such shortfall. For example, if AltaVista is at [*] of target (as set forth in
Schedule 8.2) for each of two six month periods and the shortfall was not
cured, and therefore the Shortfall Spread of [*] in the first six (6) months
is added to the Shortfall Spread of [*] in the second six (6) months to amount
to a cumulative total of a [*] Shortfall Spread, as a result the fees are
decreased as provided for in this Section 7.3.
During any period in which the payments have been reduced as provided
for above, if AltaVista shall make up the shortfall, upon making up any and all
shortfalls, all payments, including former payments due during such period and
any subsequent payments, due hereunder shall be restored to the original payment
structure.
7.4 Late Payments. All amounts owed hereunder not paid when due and
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payable will bear interest from the date such amounts are due and payable at the
lesser of (a) 1.5 percent per month and (b) the maximum allowable rate of
interest in the State of California for transactions between sophisticated
commercial parties.
7.5 Taxes. In addition to the amounts set forth above, HealthCentral
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shall pay to AltaVista or to the relevant taxing authority, as appropriate,
[*] applicable sales, use, goods and services, value added or other taxes
payable under this Agreement (other than taxes levied or imposed on
AltaVista's income). In all cases, the amounts due under this Agreement will
be [*].
7.6 Advertising Revenue. Any and all advertising on the Co-Branded
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Pages shall be sold by AltaVista and the revenue generated by such advertising
shall be retained solely by AltaVista (except for the textual sponsorship, which
can be sold by HealthCentral).
ARTICLE VIII
EQUITY GRANT AND WARRANTS
8.1 Equity Grants. At the end of each of Year 1, Year 2, and, if
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this Agreement is not terminated earlier in accordance with Section 10.2(a),
Year 3 of the Agreement, HealthCentral shall issue AltaVista shares of common
stock of HealthCentral (the "HealthCentral Common Stock") with the number of
shares issued at the end of each such Year
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equal to the quotient of [*] divided by the Year End Price for such Year. The
"Year End Price" means: (i) in the event that the HealthCentral Common Stock
is publicly traded on a nationally recognized exchange or on the Nasdaq
National Market on the last day of such Year, the average closing price per
share of the HealthCentral Common Stock for the ten (10) trading days prior to
the last day of such Year, or (ii) in the event the HealthCentral Common Stock
is not publicly traded, the fair market value of the HealthCentral Common
Stock as of the last day of such Year, as determined in good faith and
substantiated by the Board of Directors of HealthCentral; provided, however,
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that notwithstanding the previous formula in no event shall the shares issued
to AltaVista at the end of such Year be greater than [*] shares or less than
[*] shares (except in the case of Year 3 if there is an early termination
pursuant to Section 10.2(a) in which case no shares will be issued).
8.2 Warrants. On the last day of each of Year 1, Year 2, and if this
--------
Agreement is not terminated in accordance with Section 10.2(a), Year 3 (each of
which shall be an "Issuance Date"), HealthCentral shall grant to AltaVista a
warrant (collectively, the "Warrants") to purchase that number of shares of
HealthCentral Common Stock as set forth for such Year on Schedule 8.2 (up to a
------------
maximum of [*] shares) provided that AltaVista has met the applicable
--------
performance threshold (the "Performance Thresholds") set forth on Schedule 8.2
------------
for such Year. Each such Warrant shall be exercisable for a period of sixty days
after the applicable Issuance Date, and the exercise price per share for the
Warrants issued, if any, shall be as follows: (i) [*] for a Warrant issued
during or at the end of Year 1; [*] for a Warrant issued during or at the end of
Year 2; and [*] for a Warrant issued during or at the end of Year 3. Each of the
Warrants granted to AltaVista shall provide AltaVista with a right to make a
cashless exercise of such Warrants.
8.3 Registration Rights. The Company will use its best efforts to
-------------------
amend the First Amended and Restated Investors' Rights Agreement dated August
27, 1999 between the Company and certain investors, a copy of which is attached
as Exhibit 8.3 (the "Investor Rights Agreement") to include the shares of
-----------
HealthCentral Common Stock (including shares issuable pursuant to Section 8.1 or
8.2, if any) as Registrable Securities thereunder solely for the purpose of
granting AltaVista piggy back registration rights (the "Piggy Back Registration
Rights") for such shares, subject to AltaVista's adherence to all the terms of
the Investor Rights Agreement, as amended, including but not limited to market
standoff provisions and cutback provisions regarding the number of shares that
AltaVista may sell in any such offering. If the Company is unable to amend the
Investor Rights Agreement to include the shares issued and issuable to
AltaVista, then the Company shall hereby grant AltaVista piggyback registration
rights with respect to any shares of HealthCentral Common Stock to be issued to
AltaVista during the Term of this Agreement, whether in the form of an equity
grant or an exercise of Warrants. Pursuant to such Piggy Back Registration
Rights, AltaVista shall have the right to include all or any portion of the
shares of HealthCentral Common Stock then held by AltaVista in any Registration
Statement on Form S-1 or S-3 filed by HealthCentral with the Securities and
Exchange Commission during the Term of this Agreement and for a period of one
(1) year after termination of this Agreement subject to, including but not
limited to market standoff provisions and cutback provisions regarding the
number of shares that AltaVista may sell in any such offering; provided,
--------
however, that AltaVista shall not have any Piggy Back Registration Rights in
connection with
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTION.
12
any Registration Statement with respect to any initial public offering of
HealthCentral Common Stock.
8.4 Adjustment for Recapitalization. In the event HealthCentral
-------------------------------
shall at any time subdivide its outstanding shares of HealthCentral Common Stock
by recapitalization, reclassification or split-up thereof, or if HealthCentral
shall declare a stock dividend or distribute shares of HealthCentral Common
Stock to its shareholders, the number of shares of HealthCentral Common Stock to
be issued pursuant to Sections 8.1 and 8.2 immediately prior to such subdivision
shall be proportionately increased and the Exercise Price per share shall be
proportionately decreased, and if HealthCentral shall at any time combine the
outstanding shares of HealthCentral Common Stock by recapitalization,
reclassification or combination thereof, the number of shares of HealthCentral
Common Stock to be issued pursuant to Sections 8.1 and 8.2 immediately prior to
such combination shall be proportionately decreased and the Exercise Price per
share shall be proportionately increased. Any such adjustments pursuant to this
Section 8.4 shall be effective at the close of business on the effective date of
such subdivision or combination or, if any adjustment is the result of a stock
dividend or distribution, then the effective date for such adjustment shall be
the record date therefor.
ARTICLE IX
INTELLECTUAL PROPERTY RIGHTS
9.1 Ownership by AltaVista. HealthCentral acknowledges that, as
----------------------
between it and AltaVista, AltaVista owns all right, title and interest in and to
all intellectual property contained on the AltaVista Platform, including the
AltaVista Marks and the AltaVista Health Channel, except for the HealthCentral
Xxxx and HealthCentral Content. HealthCentral understands and agrees that its
use of any of the foregoing AltaVista property in connection with this Agreement
shall not create in it any right, title or interest, in or to such property, and
that all such use and goodwill associated with any such use shall inure to the
benefit of AltaVista.
9.2 Ownership by HealthCentral. AltaVista acknowledges that, as
--------------------------
between it and HealthCentral, HealthCentral owns all right, title and interest
in and to all intellectual property contained on the HealthCentral Xxxx, the
HealthCentral Content and the HealthCentral Site. AltaVista understands and
agrees that its use of any of the foregoing HealthCentral property in connection
with this Agreement shall not create in it any right, title or interest, in or
to such property, and that all such use and goodwill associated with any such
use shall inure to the benefit of HealthCentral.
9.3 Trademark Quality Control. Each Party's use of the other's
-------------------------
trademark shall be in accordance with such Party's policies regarding trademark
usage. In the event that a Party determines that its trademarks are being used
by the other Party in a manner that is inconsistent with its quality standards
and reasonably demonstrates such inconsistency to the other Party, such other
Party shall within thirty (30) days thereafter cure such inconsistency; provided
--------
that if either party does not cure such inconsistency within such period, such
party shall be in breach of this Agreement.
13
Each of the Parties hereto shall use the other party's logos and/or
trademarks in accordance with each parties' respective trademark and/or logo
usage policies.
ARTICLE X
TERM AND TERMINATION
10.1 Term. This Agreement shall begin on the Effective Date, and
----
shall expire three (3) years after the Start Date (the "Term"), unless
terminated earlier as provided below.
10.2 Termination by Either Party. This Agreement shall be subject to
---------------------------
termination upon the occurrence of any of the following events:
(a) Either Party may terminate prior to the commencement of Year
3 by providing written notice to the other Party at least
ninety (90) calendar days prior to the end of Year 2. Such
termination shall be effective as of the commencement of
Year 3. If the foregoing termination occurs, subject to
Sections 10.3 and 10.4, all obligations of the Parties
relating to Year 3 of the Agreement shall not apply.
(b) HealthCentral may terminate if AltaVista fails to deliver at
least [*] of the guaranteed number of Advertising
Impressions, set forth in Section 4.2 and 4.3 (prorated
evenly on a monthly basis over a twelve (12) month period),
for any consecutive six (6) month period, provided that
--------
AltaVista shall have ninety (90) calendar days following the
end of such six month period within which to make up the
shortfall by delivering more than [*] of the guaranteed
number of Advertising Impressions. In the event AltaVista
delivers more than [*] of the guaranteed number of
Advertising Impressions, HealthCentral shall no longer have
a right to terminate this Agreement pursuant to this
section. Such termination shall become effective upon sixty
(60) calendar days' written notice to AltaVista.
(c) AltaVista may terminate this Agreement pursuant to Section
3.6.
(d) Either Party may terminate if the other commits a material
breach of this Agreement that is not cured within thirty
(30) calendar days after receipt of written notice of the
breach.
(e) Either party may terminate immediately upon notice if:
(i) either Party files a petition for bankruptcy or is
adjudicated a bankrupt;
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTION.
14
(ii) a petition in bankruptcy is filed against either Party
and such petition is not removed or resolved within
ninety (90) calendar days;
(iii) either Party becomes insolvent or makes an assignment
for the benefit of its creditors or an arrangement for
its creditors pursuant to any bankruptcy law;
(iv) either Party discontinues its business; or
(v) a receiver is appointed for either Party or its
business.
(f) Either party may terminate if the other Party has any change
in the actual or beneficial ownership or control of more
than fifty percent (50%) of its voting stock in one or more
related transactions such that after such transaction(s)
fifty percent (50%) or more of such voting stock is held or
controlled by an entity, other than a Party hereto, that is
a direct competitor of the other Party, then the other Party
shall have the right, exercisable in its sole discretion, to
terminate. Such termination shall be effective upon thirty
(30) calendar days written notice, and must be given at any
time within thirty (30) calendar days following the closing
of such transaction(s).
10.3 Effect of Termination.
---------------------
(a) Termination of this Agreement by either Party shall not act
as a waiver of any breach of this Agreement and shall not
act as a release of either Party hereto from any liability
for breach of such Party's obligations under this Agreement.
(b) Within forty-five (45) calendar days following the
expiration or termination of this Agreement, each Party
shall pay to the other Party all sums, if any, due and owing
as of the date of expiration or termination, net of any
amounts due from the other Party as of such date.
10.4 Survival. The respective rights and obligations of AltaVista and
--------
HealthCentral under the provisions of Articles 8.3 (registration rights with
respect to previously issued securities) through 16 shall survive expiration or
termination of this Agreement.
15
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 Mutual Representations and Warranties. Each Party hereby
-------------------------------------
represents and warrants to the other Party that:
(a) It is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation and has all the necessary power and authority
(i) to conduct its business in the manner in which its
business is currently being conducted, (ii) to own and use
its assets in the manner in which its assets are currently
owned and used, and (iii) to enter into this Agreement and
perform its obligations under this Agreement; and
(b) Its execution and delivery of this Agreement, and the
performance of its obligations and duties hereunder, do not
and will not (i) conflict with or result in any breach of
any provision of its certificate of incorporation or by-
laws, (ii) require any filing with, or permit,
authorization, consent or approval of, any governmental
entity, (iii) result in a violation or breach of, or
constitute a default (or give rise to any right of
termination, cancellation or acceleration) under, any terms,
conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other
instrument or obligation to which it is a party or by which
any of its properties or assets may be bound, (iv) violate
any order, writ, injunction, decree, statute, rule or
regulation applicable to it, excluding from the foregoing
clauses (ii), (iii) and (iv) such filings, violations,
breaches or defaults which would not, individually or in the
aggregate, have a material adverse effect on it or its
ability to perform under this Agreement.
11.2 Representations and Warranties by HealthCentral. HealthCentral
-----------------------------------------------
represents and warrants that:
(a) The HealthCentral Content (as delivered to AltaVista) will
not contain any matter which constitutes a libel, slander or
violation of any personal proprietary or privacy right of
any Third Party;
(b) The HealthCentral Content (as delivered to AltaVista) will
not infringe the intellectual property rights of any Third
Party;
(c) The HealthCentral Content (as delivered to AltaVista) will
not violate any laws, regulations, statutes or warranties;
16
(d) To our knowledge, the HealthCentral Content (as delivered to
AltaVista) will be accurate, complete, timely, and correct
in all respects
(e) All action on the part of HealthCentral for the
authorization, execution, delivery and performance of all
its obligations under this Agreement or any document
contemplated hereby has been taken including resolutions
related to this Agreement and the issuance of shares
HealthCentral Common Stock pursuant to Sections 8.1 and 8.2.
This Agreement, when executed and delivered by HealthCentral
will constitute the valid and binding obligation of
HealthCentral, and will be enforceable against it in
accordance with its terms;
(f) As of the date of this Agreement, the capitalization of
HealthCentral is set forth on Schedule 11.2 (f) hereto. All
-----------------
the outstanding capital stock of HealthCentral is duly
authorized, validly issued, fully paid and nonassessable.
Except as set forth on Schedule 11.2 (f), there are no
-----------------
shares of capital stock of HealthCentral authorized, issued
or outstanding, and there are no existing options, warrants,
calls, pre-emptive rights, subscriptions or other rights,
agreements, arrangements or commitments of any character,
relating to issued or unissued capital stock of
HealthCentral obligating HealthCentral to issue, transfer or
sell or cause to be issued, transferred or sold any shares
of its capital stock. There are no voting trusts or other
agreements or understandings to which HealthCentral is a
party and to the best of HealthCentral's knowledge there are
no agreements or understandings between holders of capital
stock of HealthCentral with respect to the voting of such
stock;
(g) True and complete copies of the financial statements of
HealthCentral, together with the related auditors reports,
have been provided to AltaVista. Such financial statements
have been prepared from, are in accordance with and
accurately reflect, the books and records of HealthCentral,
comply in all material respects with applicable accounting
requirements, have been prepared in accordance with
generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may
be stated in the notes thereto) and fairly present the
financial position and the results of operations and cash
flows (and changes in financial position, if any) of
HealthCentral as of the times and for the periods referred
to therein (subject, in the case of unaudited statements, to
normally recurring year-end audit adjustments which are not
material);
17
(h) The shares of HealthCentral Common Stock issuable pursuant
to Section 8.1 of this Agreement, and upon exercise of the
Warrants when issued, sold and delivered in compliance with
this Agreement and the Warrants, will be duly authorized,
validly issued, fully paid and nonassessable, will be free
of any liens and encumbrances and will not be subject to any
preemptive rights, rights of first refusal or redemption
rights; and
(i) The issuance of shares of HealthCentral Common Stock
pursuant to Section 8.1 of this Agreement, the Warrants and
shares of HealthCentral Common Stock issuable upon exercise
of the Warrants constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act
of 1933, as amended.
11.3 Representations and Warranties by AltaVista. AltaVista
-------------------------------------------
represents and warrants that:
(a) AltaVista will operate and maintain the AltaVista Health
Channel in compliance with all applicable laws, regulations,
statutes, and warranties.
(b) All action on the part of AltaVista for the authorization,
execution, delivery and performance of all its obligations
under this Agreement or any document contemplated hereby has
been taken. This Agreement, when executed and delivered by
AltaVista will constitute the valid and binding obligation
of AltaVista, and will be enforceable against it in
accordance with its terms.
11.4 No Other Representations or Warranties. Each Party acknowledges
--------------------------------------
that the other Party makes no representations, warranties or agreements related
to the subject matter hereof that are not expressly provided for in this
Agreement.
ARTICLE XII
INDEMNIFICATION AND REMEDIES
12.1 HealthCentral Indemnity. HealthCentral shall indemnify, defend
-----------------------
and hold AltaVista harmless from and against all Damages incurred in connection
with or arising from any claim that: (a)HealthCentral violated any
representation or warranty hereunder; (b) HealthCentral breached any covenant or
agreement by HealthCentral under this Agreement; (c) the HealthCentral Marks,
the HealthCentral Site, the HealthCentral Content (as delivered to AltaVista
hereunder) or any other materials provided by HealthCentral hereunder violate
the intellectual property or other rights of any Third Party; or (d) any claim
by a Third Party regarding HealthCentral's performance or non-performance of its
obligations under this Agreement.
18
12.2 AltaVista Indemnity. AltaVista shall indemnify, defend and hold
-------------------
HealthCentral harmless from and against all Damages incurred in connection with
or arising from any claim that: (a) AltaVista violated any representation or
warranty hereunder; (b) AltaVista breached any covenant or agreement by
AltaVista under this Agreement; (c) the AltaVista Marks or the AltaVista
Platform (excluding any items covered by 12.1(c)), or any material modifications
made by AltaVista to the HealthCentral Marks or the HealthCentral Content,
violate the intellectual property or other rights of any Third Party; or (d) any
claim by a Third Party regarding AltaVista's performance or non-performance of
its obligations under this Agreement.
12.3 Indemnification Procedure
-------------------------
(a) A party seeking indemnification (the "Indemnified Party")
shall promptly notify the other party (the "Indemnifying
Party") in writing of any claim for indemnification,
provided, that failure to give such notice shall not relieve
--------
the Indemnifying Party of any liability hereunder (except to
the extent the Indemnifying Party has suffered actual
material prejudice by such failure).
(b) The Indemnified Party shall tender sole defense and control
of such claim to the Indemnifying Party. The Indemnified
Party shall, if requested by the Indemnifying Party, give
reasonable assistance to the Indemnifying Party in defense
of any claim. The Indemnifying Party shall reimburse the
Indemnified Party for any reasonable legal expenses directly
incurred from providing such assistance, as such expenses
are incurred.
(c) The Indemnifying Party shall have the right to consent to
the entry of judgment with respect to, or otherwise settle,
an indemnified claim with the prior written consent of the
Indemnified Party, which consent shall not be unreasonably
withheld; provided, however, that the Indemnified Party may
-------- -------
withhold its consent if any such judgment or settlement
imposes any unreimbursed monetary or continuing non-monetary
obligation on such Party or does not include an
unconditional release of that Party and its Affiliates from
all liability in respect of claims that are the subject
matter of the indemnified claim.
12.4 Remedies Cumulative. Except as otherwise expressly specified
-------------------
herein, the rights and remedies granted to each Party under this Agreement are
cumulative and in addition to, and not in lieu of, any other rights or remedies
that such Party may possess at law or in equity.
19
ARTICLE XIII
CONFIDENTIALITY
13.1 Confidential Information. "Confidential Information" means
------------------------
information about the disclosing Party's business or activities that are
proprietary or confidential, which shall include all business, financial,
technical and other information of a Party marked or designated by such Party as
"confidential" or "proprietary"; provided that information shall not be
considered Confidential Information of a disclosing Party if it can be shown
that such information: (i) is known to the recipient on the Effective Date
directly or indirectly from a source other than one having an obligation of
confidentiality to the disclosing Party; (ii) hereafter becomes known
(independently of disclosure by the disclosing Party) to the recipient directly
or indirectly from a source other than one having an obligation of
confidentiality to the disclosing Party; (iii) becomes publicly known or
otherwise ceases to be confidential, except through a breach of this Agreement
by the recipient; or (iv) was independently developed by the recipient without
use of Confidential Information of the other Party. Confidential Information
may be disclosed to a legal, judicial or governmental entity provided that the
--------
disclosing Party has been given notice by the recipient so that the disclosing
Party can seek a protective order or the appropriate protection for the
Confidential Information.
13.2 Protection of Confidential Information. The Parties recognize
--------------------------------------
that, in connection with the performance of this Agreement, each of them may
disclose to the other its Confidential Information, including the creation of
materials and the development of technology and techniques that are not
generally known in the industry. The Party receiving any Confidential
Information of the other Party agrees to maintain the confidential status of
such Confidential Information and not to use any such Confidential Information
for any purpose other than the purposes for which it was originally disclosed to
the receiving Party, and not to disclose any of such Confidential Information to
any Third Party.
13.3 Permitted Disclosure. The Parties acknowledge and agree that
--------------------
each may disclose any given Confidential Information: (i) as required by law or
generally accepted accounting practices; (ii) to their respective directors,
officers, employees, attorneys, accountants and other advisors or independent
contractors, who are under an obligation of confidentiality no less stringent
than set forth herein, on a "need-to-know" basis; (iii) to their respective
Affiliates; or (iv) in connection with disputes or litigation between the
Parties that related to such Confidential Information and each Party shall
endeavor to limit disclosure to that purpose.
13.4 Applicability. The foregoing obligations shall apply to
-------------
directors, officers, employees and representatives of the Parties and any other
person to whom the Parties have delivered copies of, or permitted access to,
such Confidential Information in connection with the performance of this
Agreement, and each Party shall advise each of the above of the obligations set
forth in this Article 13.
13.5 Third Party Confidential Information. Any confidential
------------------------------------
information of a Third Party disclosed to either AltaVista or
20
HealthCentral shall be treated by AltaVista or HealthCentral, as the case may
be, in accordance with the terms under which such Third Party confidential
information was disclosed; provided that the Party disclosing such Third Party
--------
confidential information shall first notify the other Party that such
information constitutes Third Party confidential information and the terms
applicable to such Third Party confidential information.
13.6 Confidentiality of Agreement. Except as required by law
----------------------------
(including disclosures necessary or appropriate in filings with the Securities
Exchange Commission) or generally accepted accounting principles, and except to
assert its rights hereunder or for disclosures on a "need-to-know" basis to its
own officers, directors, employees and professional advisers or to prospective
investors or acquirers in connection with an investment in or acquisition of
such Party, each Party hereto agrees that neither it, nor its directors,
officers, employees, consultants or agents shall disclose the specific terms of
this Agreement without the prior consent of the other Party.
13.7 Public Disclosure. In connection with any public disclosure or
-----------------
filing with any governmental agency, including the Securities and Exchange
Commission, HealthCentral agrees to seek confidential treatment of the terms and
conditions of this Agreement. Such confidential treatment request shall not be
filed without the prior written consent of AltaVista not to be unreasonably
withheld. In addition, any description of this Agreement in any publicly filed
document by HealthCentral shall not be filed without the prior written consent
of AltaVista, not to be unreasonably withheld.
The parties acknowledge and agree that neither party may, at any time,
issue any press release or make any other disclosure about this Agreement, its
term or its existence, including but not limited to any disclosure to its
shareholders or other vendors, without the prior written approval of the other
party. If, however, a party determines, upon the opinion of counsel, that
disclosure regarding the other party, its Affiliates, this Agreement and/or the
relationship between such party and the other party and its Affiliates is
required by law or otherwise desirable, then disclosure shall be permitted, but
only after the other party is given the opportunity to review and reasonably
revise all such written disclosure. Under such circumstances, a copy of any such
written documentation shall be provided to the other party at least three (3)
business days (or as promptly as possible in the event three (3) business days
is not practicable) prior to its expected disclosure.
ARTICLE XIV
DISCLAIMER OF WARRANTIES
14.1 HEALTHCENTRAL HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
EXPLICITLY PROVIDED FOR IN SECTION 11.3, THE ALTAVISTA PLATFORM AND THE
ALTAVISTA HEALTH CHANNEL ARE PROVIDED "AS IS, WITH ALL FAULTS," AND THAT
ALTAVISTA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO (A)
THE USEFULNESS, ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY OR
EFFECTIVENESS OF THE ALTAVISTA PLATFORM OR THE ALTAVISTA HEALTH CHANNEL; (B)
THAT THE
21
ALTAVISTA PLATFORM OR THE ALTAVISTA HEALTH CHANNEL WILL OPERATE UNINTERRUPTED OR
ERROR-FREE; OR (C) THAT DEFECTS IN THE ALTAVISTA PLATFORM OR THE ALTAVISTA
HEALTH CHANNEL HAVE BEEN OR WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING,
ALTAVISTA HEREBY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL ALTAVISTA BE LIABLE TO
HEALTHCENTRAL FOR ANY FAILURE, DISRUPTION, DOWNTIME, INTERRUPTION, INCORRECT
LINKAGE, DELAY, INACCURACY OR OTHER NONPERFORMANCE OF THE ALTAVISTA PLATFORM OR
THE ALTAVISTA HEALTH CHANNEL.
14.2 ALTAVISTA HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS PROVIDED FOR
IN SECTION 11.2, THE HEALTHCENTRAL SITE AND THE HEALTHCENTRAL CONTENT ARE
PROVIDED "AS IS, WITH ALL FAULTS" AND THAT HEALTHCENTRAL MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO (A) THAT THE
HEALTHCENTRAL SITE WILL OPERATE UNINTERRUPTED OR ERROR-FREE; OR (B) THAT DEFECTS
IN THE HEALTHCENTRAL SITE HAVE BEEN OR WILL BE CORRECTED. WITHOUT LIMITING THE
FOREGOING, HEALTHCENTRAL HEREBY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL
HEALTHCENTRAL BE LIABLE TO ALTAVISTA FOR ANY FAILURE, DISRUPTION, DOWNTIME,
INTERRUPTION, INCORRECT LINKAGE, DELAY, INACCURACY OR OTHER NONPERFORMANCE OF
THE HEALTHCENTRAL SITE.
ARTICLE XV
LIMITATION OF LIABILITY
15.1 EXCEPT FOR A BREACH OF ARTICLE 13 ABOVE OR EXCEPT IN THE EVENT OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCTOR A CLAIM PURSUANT TO INDEMNIFICATION
OBLIGATIONS HEREIN, IN NO EVENT SHALL A PARTY TO THIS AGREEMENT BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, FOR LOST PROFITS, IN ANY WAY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, EVEN IN THE EVENT SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY
OF SUCH DAMAGES.
ARTICLE XVI
MISCELLANEOUS
16.1 No Joint Venture. The sole relationship between the Parties
----------------
shall be that of independent contractors. No partnership, joint venture, or
other formal business relationship is hereby created between the Parties hereto.
Neither Party shall make any warranties or representations, or assume or create
any obligations, on the other Party's behalf except as may be
22
expressly permitted hereunder or in writing by such other Party. Each Party
shall be solely responsible for the actions of all their respective employees,
agents and representatives.
16.2 Governing Law. This Agreement shall be interpreted and construed
-------------
in accordance with the laws of the State of California without regard to the
principles of conflicts of laws, and with the same force and effect as if fully
executed and performed therein, and the laws of the United States of America.
16.3 Amendment or Modification. This Agreement may not be amended,
-------------------------
modified or supplemented by the Parties in any manner, except by an instrument
in writing signed on behalf of each of the Parties by a duly authorized officer
or representative.
16.4 No Assignment. Neither Party shall transfer or assign any rights
-------------
or delegate any obligations hereunder, in whole or in part, whether voluntarily
or by operation of law, without the prior written consent of the other Party.
Any purported transfer, assignment or delegation by either Party without the
appropriate prior written approval shall be null and void and of no force or
effect. Notwithstanding the foregoing, without securing such prior consent,
either Party shall have the right to assign this Agreement and the obligations
hereunder to any successor of such Party by way of merger, consolidation,
reorganization or the acquisition of substantially all of the business and
assets of the assigning Party relating to the Agreement, provided however that
--------
the foregoing shall not be construed to limit a Party 's right to terminate this
Agreement in accordance with Article 10.
16.5 Notices. Any notice or other communication to be given hereunder
-------
shall be in writing and shall be (as elected by the Party giving such notice):
(i) personally delivered; (ii) transmitted by postage prepaid registered or
certified mail, return receipt requested; (iii) deposited prepaid with a
nationally recognized overnight courier service; or (iv) sent by facsimile.
Unless otherwise provided herein, all notices shall be deemed to have been duly
given on: (a) the date of receipt (or if delivery is refused, the date of such
refusal) if delivered personally or by courier; (b) three (3) days after the
date of posting if transmitted by mail; or (c) if transmitted by facsimile, the
date a confirmation of transmission is received. Either Party may change its
address for purposes hereof on not less than three (3) days prior notice to the
other Party. Notices hereunder shall be directed to, unless otherwise instructed
by the receiving Party:
If to AltaVista to:
------------------
000 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxx X. Lucie
If to HealthCentral, to
-----------------------
XxxxxxXxxxxxx.xxx, Inc.
0000 Xxxxxxxxxx Xx., Xxxxx 000
00
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
with a copy to
--------------
Venture Law Group
0000 Xxxx Xxxx Xxxx Xxxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
16.6 Entire Agreement. This Agreement represents the entire
----------------
agreement of the Parties with respect to the subject matter hereof and
supersedes all prior and/or contemporaneous agreements and understandings,
written or oral between the Parties with respect to the subject matter hereof.
16.7 Waiver. Any of the provisions of this Agreement may be waived
------
by the Party entitled to the benefit thereof. Neither Party shall be deemed, by
any act or omission, to have waived any of its rights or remedies hereunder
unless such waiver is in writing and signed by the waiving Party, and then only
to the extent specifically set forth in such writing. A waiver with reference to
one event shall not be construed as continuing or as a bar to or waiver of any
right or remedy as to a subsequent event.
16.8 No Third Party Beneficiaries. Nothing express or implied in
----------------------------
this Agreement is intended to confer, nor shall anything herein confer, upon any
person other than the Parties and the respective successors or assigns of the
Parties, any rights, remedies, obligations or liabilities whatsoever.
16.9 Fees and Expenses. Each Party shall be responsible for the
------------------
payment of its own costs and expenses, including attorney's fees and expenses,
in connection with the negotiation and execution of this Agreement.
16.10 Severability. If the application of any provisions of this
------------
Agreement to any particular facts of circumstances shall be held to be invalid
or unenforceable by any court of competent jurisdiction, then: (i) the validity
and enforceability of such provision or provisions as applied to any other
particular facts or circumstances and the validity of other provisions of this
Agreement shall not in any way be affected or impaired thereby; and (ii) such
provision or provisions shall be reformed without further action by the Parties
hereto and only to the extent necessary to make such provision or provisions
valid and enforceable when applied to such particular facts and circumstances.
16.11 Counterparts; Facsimiles. This Agreement may be executed in
------------------------
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, and such counterparts together shall constitute one and
the same instrument. Each Party shall receive a duplicate original of the
counterpart copy or copies executed by it. For purposes hereof, a facsimile copy
of this Agreement, including the signature pages hereto, shall be deemed
24
to be an original. Notwithstanding the foregoing, the Parties shall each deliver
original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
25
EXECUTION COPY
--------------
IN WITNESS WHEREOF, the Parties to this Agreement by their duly authorized
representatives have executed this Agreement as of the date first above written.
AltaVista Company XxxxxxXxxxxxx.xxx, Inc.
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
Name: Xxx Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer Title: President &
Chief Executive Officer
26
Schedule 1.14 - HealthCentral Competitors
As of September 27, 1999:
1. XxXxxx.xxx
2. WebMD/Healtheon
3. BetterHealth/AllHealth
4. DiscoveryHealth
5. IntelliHealth
6. Thrive Online
7. OnHealth
27
Schedule 1.15 - HealthCentral Content
Subject to the design phase, the HealthCentral Content will be substantially
similar to the following:
AltaVista Content Overview
GUIDE
Co-branded
pages on AV
Co-branded
pages on HC
* and underlining = Special Exclusive For AV
--------------------------------------------------
Level 1: Level 2: Level 3:
-------------------------------------------------
DAILY FEATURES Home Page Brief Page Full Text
Page
--------------------------------------------------
HEALTH NEWS, DAILY M-F
News
Daily Newsletter
XX. XXXX - DAILY - X-X
Xxxx Topic
Xxxx Question
Ask Xx. Xxxx
TV Report (text)
*Special AV Question of the Day
--------------------------------------------------
*Special AV Xx. Xxxx: Classics
--------------------------------------------------
Xx. Xxxx Digest Daily Newsletter
TV Report: Audio/Slide Show (Q1)
TV Report Streaming Video (Q1)
--------------------------------------------------
WEEKLY FEATURES Level 1: Level 2: Level 3:
--------------------------------------------------
Home Page Brief Page Full Text
Page
WEEKLY NEWS FEATURES
Mystery Photo
Mystery Photo Archives
News Quiz
Poll
WEEKLY COLUMNISTS
Flower, Futurist, Current (1x/wk)
Flower, Futurist, Archives
London, Humorist, Current (1x/wk)
London, Humorist, Archives
Xxxxxxx, Librarian, Current (1x/wk)
Xxxxxxx, Librarian, Archives
ASK A DOCTOR (Launches 10/15)
Questions and Answers (27x/wk)
Doctor Profiles (3x/wk)
Future Topics Calendar
List of Archives
Ask A Doctor Weekly Newsletter
28
PEOPLES PHARMACY (Launches 11/1)
Drug Column
Herbal Column
Questions and Answers
Ask PP
*AV Special Question and Answer
--------------------------------------------------
TOPIC NEWSLETTERS
*40 Monthly Topic Newsletters - Co-Branded
--------------------------------------------------
--------------------------------------------------
MONTHLY FEATURES Level 1: Level 2: Level 3:
--------------------------------------------------
Home Page Brief Page Full Text
Page
TOPIC NEWSLETTERS
**50 Monthly Topic Newsletters - Co-Branded
--------------------------------------------------
PEOPLES PHARMACY
Monthly Radio Program Guide
---------------------------------------------------
STATIC/REFERENCE CONTENT
--------------------------------------------------
HEALTH NEWS (3 Years)
News Archives
XX. XXXX - DAILY - X-X
Xxxx Topic Archives (from 11/1/98)
Xxxx Question Archives (from 11/1/98)
TV Report (text) (3 years)
ASK A DOCTOR (Launches 10/15)
Questions and Answers Archives
Doctor Profiles Archives
PEOPLES PHARMACY (Launches 11/1)
Drug Column Archives
Herbal Column Archives
Questions and Answers Archives
Herb Monographs (50)
In-Depth Guides (27)
Top 20 Home Remedies (Q4)
Alternative Medicine Columns (Q4)
PP Drug Database (Q1)
CENTERS
90 Topic Centers
LIBRARY
*Xxxxxx/XxxxxxXxxxxxx.xxx Library (750) (not on HC)
--------------------------------------------------
Xxxx.xxx Encyclopedias (6,000)
Clinical Pharmacology Drug DB (900)
PERSONAL FEATURES
Cool Tools (10-15)
Alcohol and Substance Abuse Mini-Profile
Diet and Nutrition Mini-Profile
Fitness and Exercise Mini-Profile
Stress Mini-Profile
Sexual Health Mini-Profile
LifeView - Health Risk Assessment
29
Schedule 1.16 - HealthCentral Xxxx
These are the current HealthCentral Marks. These will be updated as needed.
[LOGO OF HEALTHCENTRAL]
XxxxxxXxxxxxx.xxx
XxxxxxXxxxxxx.xxx Network
30
Schedule 1.19 - AltaVista Health Channel Masthead
The parties shall mutually agree on the design of the Masthead, and the
incorporation of the HealthCentral Xxxx within the Masthead. The foregoing
notwithstanding, the HealthCentral logo shall be of a size that is clear and
explicit.
31
Schedule 3.2 - Protocol For Transmission Of HealthCentral Content To AltaVista
The following represents two protocols that would be acceptable to
XxxxxxXxxxxxx.xxx.
Option 1:
XML content feed.
In this type of feed, HealthCentral sets up a URL (i.e.
xxxxx.xxxxxxxxxxxxx.xxx/xxxxxxxxx/xxxxxxxx.xxx). This page returns a properly
formatted news feed. For example a news feed with one story might look like:
Xx. Xxxx Xxxxx xxx.xxxxxxxxxxxxx.xxx Could All The Ointments I Use Interact?
Drugs and Medications
Xxxxx: When I got out of the shower the other morning, I sprinkled powder on my
athlete's foot, dabbed hydrocortisone on my poison oak, and smeared sunscreen
all over.
Could these ointments interact and affect each other somehow?
Xx. Xxxx: The way you're slapping everything on there reminds me of the over-
enthusiasm when Rogaine first came on the market. Men were glopping on so much
Rogaine they were growing hair on their foreheads.
There are about four thousand drugs on the market, meaning there are four
thousand times four thousand possible interactions. Of these 16 million
combinations, each has about 10 different side effects. So there are 160 million
things to keep track of and, of course, no one can and no one does.
Ointments and topical preparations are probably studied the least because they
aren't considered very critical. But even topicals have side effects and they
can be absorbed into the body.
Pharmacological contraindications are in place for some ointments. Cortisone,
for example, works by reducing both inflammation and the body's immune response.
It is, therefore, not recommended for certain kinds of infections because it
allows them to grow rapidly. On the other hand, cortisone is the drug of choice
after a transplant when we don't want the immune system fighting off the new
organ.
As I recall, cortisone is either useless for athlete's foot fungus or makes it
worse. So right away, you've got a conflict.
Your question is great, Xxxxx, but I can't give you a specific answer. I'd say
you'd be wise to use as few of these things together at one time as is possible,
or at least try to use them on separate body parts.
xxxx://xxx.xxxxxxxxxxxxx.xxx/xxxxxxx/xxxxxxxxx.xxx?xxxxxxxXxxx
Visit Our Skin and Hair Center
Wednesday September 22, 1999
Pros:
32
. Content is available in a raw form and may be re-used in many different
ways on the partner site
. The feed includes information about the content and is not just a "blob" of
stuff
. The feed is separate from the presentation (i.e. UI). No changes are needed
to the feed even if the look and feel of the site changes dramatically.
Cons:
. Requires that the content is parsed on the partner side
. More complicated implementation
Option 2:
HTML Widgets
We can also provide preformatted chunks of html at a feed url. This URL can be
harvested by the third party and inserted directly into an HTML page. These
"widgets" are pre-formatted as specified with the partner site. For example an
html widget that creates a box with up to date headlines may be harvested and
placed wherever the latest headlines should be on the partner site. In some
cases the content may be directly included as an ilayer and/or iframe.
Pros:
. No parsing of the content feed is needed.
. Content may be directly inserted
. Easy Implementation
Cons:
. Any changes to formatting must be coordinated with both sides
. Content may be thought of as "blobs" without context or meaning. That is -
there is no way to know that one piece is a headline and one piece is the
summary of an article
Examples available upon request.
33
Schedule 3.3 - Use of Content
AltaVista agrees to provide format guidelines including minimum and maximum word
and character counts for headlines, abstracts, subtitles and articles to be
supplied by HealthCentral.
AltaVista will not parse, rewrite, edit, or rearrange the display of
HealthCentral Content, except as provided above and pursuant to this Agreement.
AltaVista may modify the font, font size, spacing or color of the Content so
long as it does not result in the content becoming misleading or inaccurate.
AltaVista may correct any spelling errors.
In such case as a photo or graphic accompanies a text article, AltaVista will
use its reasonable efforts to display the photo or graphic in close proximity to
that story and in sufficient resolution so that it is easily comprehensible.
AltaVista will use its reasonable efforts not re-purpose photos or graphics for
other uses.
34
Schedule 8.2 - Performance Threshold
35
PERFORMANCE THRESHOLD SCHEDULE
Performance
Threshold #1
Total Total
Equity Guaranteed Cumulative Cumulative
Year Cash Grants Total Value Impressions Impressions* Visitors Warrants**
---- ------ ------ ----------- ----------- ------------ ---------- ----------
1 [*] [*] [*] [*] [*] [*] [*]
2 [*] [*] [*] [*] [*] [*] [*]
3 [*] [*] [*] [*] [*] [*] [*]
TOTAL [*] [*] [*] [*]
* Total Impressions shall mean (i) for Performance Threshold #1, the
Guaranteed Impressions plus [*], and (ii) for Performance Threshold
#2 through #6, the Total Impressions of the preceding Performance
Threshold, plus [*].
** In the event Alta Vista delivers either the number of Total Cumulative
Impressions or the number of Total Cumulative Visitors set forth in each of
the six performance thresholds, HealthCentral shall issue the number of
Warrants set forth herein pursuant to the exercise price and terms and
conditions in Section 8.2 of this Agreement.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
1
PERFORMANCE THRESHOLD SCHEDULE
Performance
Threshold #2
Total Total
Equity Guaranteed Cumulative Cumulative
Year Cash Grants Total Value Impressions Impressions* Visitors Warrants**
---- ------ ------ ----------- ----------- ------------ ---------- ----------
1 [*] [*] [*] [*] [*] [*] [*]
2 [*] [*] [*] [*] [*] [*] [*]
3 [*] [*] [*] [*] [*] [*] [*]
TOTAL [*] [*] [*] [*]
* Total Impressions shall mean (i) for Performance Threshold #1, the
Guaranteed Impressions plus [*], and (ii) for Performance Threshold
#2 through #6, the Total Impressions of the preceding Performance
Threshold, plus [*].
** In the event Alta Vista delivers either the number of Total Cumulative
Impressions or the number of Total Cumulative Visitors set forth in each of
the six performance thresholds, HealthCentral shall issue the number of
Warrants set forth herein pursuant to the exercise price and terms and
conditions in Section 8.2 of this Agreement.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
2
PERFORMANCE THRESHOLD SCHEDULE
Performance
Threshold #3
Total Total
Equity Guaranteed Cumulative Cumulative
Year Cash Grants Total Value Impressions Impressions* Visitors Warrants**
---- ------ ------ ----------- ----------- ------------ ---------- ----------
1 [*] [*] [*] [*] [*] [*] [*]
2 [*] [*] [*] [*] [*] [*] [*]
3 [*] [*] [*] [*] [*] [*] [*]
TOTAL [*] [*] [*] [*]
* Total Impressions shall mean (i) for Performance Threshold #1, the
Guaranteed Impressions plus [*], and (ii) for Performance Threshold
#2 through #6, the Total Impressions of the preceding Performance
Threshold, plus [*].
** In the event Alta Vista delivers either the number of Total Cumulative
Impressions or the number of Total Cumulative Visitors set forth in each of
the six performance thresholds, HealthCentral shall issue the number of
Warrants set forth herein pursuant to the exercise price and terms and
conditions in Section 8.2 of this Agreement.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
3
PERFORMANCE THRESHOLD SCHEDULE
Performance
Threshold #4
Total Total
Equity Guaranteed Cumulative Cumulative
Year Cash Grants Total Value Impressions Impressions* Visitors Warrants**
---- ------ ------ ----------- ----------- ------------ ---------- ----------
1 [*] [*] [*] [*] [*] [*] [*]
2 [*] [*] [*] [*] [*] [*] [*]
3 [*] [*] [*] [*] [*] [*] [*]
TOTAL [*] [*] [*] [*]
* Total Impressions shall mean (i) for Performance Threshold #1, the
Guaranteed Impressions plus [*], and (ii) for Performance Threshold
#2 through #6, the Total Impressions of the preceding Performance
Threshold, plus [*].
** In the event Alta Vista delivers either the number of Total Cumulative
Impressions or the number of Total Cumulative Visitors set forth in each of
the six performance thresholds, HealthCentral shall issue the number of
Warrants set forth herein pursuant to the exercise price and terms and
conditions in Section 8.2 of this Agreement.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
4
PERFORMANCE THRESHOLD SCHEDULE
Performance
Threshold #5
Total Total
Equity Guaranteed Cumulative Cumulative
Year Cash Grants Total Value Impressions Impressions* Visitors Warrants**
---- ------ ------ ----------- ----------- ------------ ---------- ----------
1 [*] [*] [*] [*] [*] [*] [*]
2 [*] [*] [*] [*] [*] [*] [*]
3 [*] [*] [*] [*] [*] [*] [*]
TOTAL [*] [*] [*] [*]
* Total Impressions shall mean (i) for Performance Threshold #1, the
Guaranteed Impressions plus [*], and (ii) for Performance Threshold
#2 through #6, the Total Impressions of the preceding Performance
Threshold, plus [*].
** In the event Alta Vista delivers either the number of Total Cumulative
Impressions or the number of Total Cumulative Visitors set forth in each of
the six performance thresholds, HealthCentral shall issue the number of
Warrants set forth herein pursuant to the exercise price and terms and
conditions in Section 8.2 of this Agreement.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
5
PERFORMANCE THRESHOLD SCHEDULE
Performance
Threshold #6
Total Total
Equity Guaranteed Cumulative Cumulative
Year Cash Grants Total Value Impressions Impressions* Visitors Warrants**
---- ------ ------ ----------- ----------- ------------ ---------- ----------
1 [*] [*] [*] [*] [*] [*] [*]
2 [*] [*] [*] [*] [*] [*] [*]
3 [*] [*] [*] [*] [*] [*] [*]
TOTAL [*] [*] [*] [*]
* Total Impressions shall mean (i) for Performance Threshold #1, the
Guaranteed Impressions plus [*], and (ii) for Performance Threshold
#2 through #6, the Total Impressions of the preceding Performance
Threshold, plus [*].
** In the event Alta Vista delivers either the number of Total Cumulative
Impressions or the number of Total Cumulative Visitors set forth in each of
the six performance thresholds, HealthCentral shall issue the number of
Warrants set forth herein pursuant to the exercise price and terms and
conditions in Section 8.2 of this Agreement.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
6
PERFORMANCE THRESHOLD SCHEDULE
CUMULATIVE MAXIMUM NUMBER OF
Equity
------
Year Cash Grants Total Value IMPRESSIONS VISITORS WARRANTS
---- ------ ------ ----------- ----------- -------- ----------
1 [*] [*] [*] [*] [*] [*]
2 [*] [*] [*] [*] [*] [*]
3 [*] [*] [*] [*] [*] [*]
TOTAL [*] [*] [*] [*]
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION.
7
Schedule 11.2(f) - Capitalization Table
36
Exhibit 8.3 - Investor Right's Agreement
37
