EXHIBIT 10.19
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR A PORTION OF THIS EXHIBIT
TRADEMARK LICENSE AND PROMOTION AGREEMENT
This is a TRADEMARK LICENSE AND PROMOTION AGREEMENT ("Agreement") entered
into and effective as of June 8, 1998 (the "Effective Date") among DOW XXXXX &
COMPANY, INC., a Delaware corporation ("Dow Xxxxx"), KORN/FERRY INTERNATIONAL
FUTURESTEP, INC., a Delaware corporation ("Futurestep"), and KORN/FERRY
INTERNATIONAL, a California corporation ("KF").
Futurestep owns and will operate an online executive employment
recruitment service accessible from the World Wide Web, currently located at
xxxx://xxx.xxxxxxxxxx.xxx, and further defined on Exhibit A (the "Futurestep
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Business"). Futurestep wants to license the right to use Dow Jones's trademark
THE WALL STREET JOURNAL and other marks in connection with the promotion of the
Futurestep Business, and Dow Xxxxx wants to grant such license, subject to the
terms and conditions set forth herein. Each of Dow Xxxxx, Futurestep and KF
also wants to commit to promote the other party's products and services, as set
forth herein. Therefore, in consideration of the mutual promises set forth
below, and intending to be legally bound hereby, Dow Xxxxx, Futurestep and KF
hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following capitalized
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terms shall have the following meanings. Other terms are defined elsewhere in
this Agreement.
(a) "Business Ad" shall mean: (1) during the first twelve months of the
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Initial Term, an advertisement promoting a product or service of the Futurestep
Business; and (2) during the remainder of the Initial Term, an advertisement
promoting a product or service of the Futurestep Business and/or the business of
KF, as applicable, including advertisements for or by the KF Selection division.
A "Business Ad" shall not include, among other things, a Selection Ad or a
Recruitment Ad.
(b) "Business Tag Line" shall mean "Futurestep, a service of Korn/Ferry
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[International] and The Wall Street Journal", or such other statement mutually
agreed to by all parties that includes a trade name, trademark, or other
branding identifying both KF and Dow Xxxxx or The Wall Street Journal as the
source and origin of the Futurestep Business.
(c) "Business Web Site" shall mean the web site from which the Futurestep
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Business operates. As of the Effective Date, the URL for the Business Web Site
was xxxx://xxx.xxxxxxxxxx.xxx.
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(d) "xxxxxxx.xxx.xxx web site Business" shall mean the operation of a web
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site, currently located at xxxx://xxxxxxx.xxx.xxx, containing news, information
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and other content on career development, employment searching, employment
consulting and similar human resources and work-related issues, including
operation of an online database of available employment opportunities with third
persons which individuals seeking employment can search electronically, a
"networking database" (that is not an online database of job placement
candidates or of resumes, and that is not a dating service database), and links
to co-branded career counseling services and a database of executive recruitment
companies.
(e) "Client" shall mean a customer or client of Futurestep or KF.
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(f) "Dow Xxxxx Business" shall mean the publication of business and
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financial news and information around the world, in media including print,
electronic, radio, television, cable, satellite, video; software, and the
Internet, including: The Wall Street Journal; The Wall Street Journal Europe;
The Asian Wall Street Journal; The Wall Street Journal Americas; The Wall Street
Journal Interactive Edition; Barrons's; Xxxxxx'x Online; SmartMoney; SmartMoney
Online; xxxxxxx.xxx.xxx; National Business Employment Weekly; Dow Xxxxx
Newswires; Dow Xxxxx Interactive; Far Eastern Economic Review;Far Eastern
Economic Review Interactive; Dow Xxxxx Indexes; Wall Street Journal Radio; Dow
Xxxxx Radio; CNBC Asia; CNBC Europe; business programming on CNBC; CNBC/Dow
Xxxxx Business Video; Xxxxxxx Newspapers; America Economia; and Central European
Economic Review.
(g) "Dow Xxxxx Marks" shall mean, collectively, certain trademarks,
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service marks, trade names, logos, brands and other identifiers in which Dow
Xxxxx claims proprietary rights related to its products or services, and which
are licensed pursuant to, and subject to, certain terms and conditions set forth
in this Agreement. A list of the Dow Xxxxx Marks as of the Effective Date is set
forth on Exhibit D.
(h) "KF Business" shall mean: (1) an online database of job placement
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candidates or of resumes from individuals seeking employment with third persons;
(2) the providing of Selection Services either by KF or KF Selection; and/or (3)
the furnishing of professional executive recruitment services.
(i) "NBEW" shall mean National Business Employment Weekly, a print
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publication published by Dow Xxxxx focusing on employment issues.
(j) "Net Ad Revenue" shall mean the gross dollar amount received by Dow
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Xxxxx in connection with the purchase and publication of an advertisement, minus
any amounts or discounts paid or payable to advertising agencies, media
placement agencies, or similar third persons purchasing such advertisement on
behalf of another.
(k) "Recruitment Ad" shall mean an advertisement purchased by an employer
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directly from the publication or media source, without involvement of
Futurestep or KF, publicizing the availability of one or more employment
positions for that particular employer. A Recruitment Ad could be ordered and
placed by either the employer directly, or an advertising or media placement
agency working for the employer. A "Recruitment Ad" shall not include a
"Selection Ad".
(l) "Registered Candidate" shall mean an individual who registers and
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completes the User Registration Page online at the Business Web Site.
(m) "Response Management Service" shall mean the providing of: (1) one or
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more of the products or services set forth on Exhibit C with respect to a
Referred Response Management
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Service Client; or (2) such other new or amended or different product or
service, or combination of products and services, related to those products and
services set forth on Exhibit C with respect to a Referred Response Management
Service Client, as may be agreed upon in advance by Futurestep and Dow Xxxxx.
The parties acknowledge that, when Futurestep or KF provides certain of the
services set forth on Exhibit C in connection with a Selection Ad, Futurestep
and KF generally refer to the provision of such services as "Selection
Services", not "Response Management Services". However, for purposes of Section
7(b) of this Agreement, Dow Xxxxx shall be entitled to the payment of the
Response Management Service Referral Fee: (a) in connection with Response
Management Services provided by Futurestep or KF during the Term with respect to
a particular Recruitment Ad for a Referred Response Management Service Client;
and (b) in connection with Futurestep or KF providing any of the products or
services set forth on Exhibit C (whether referred to by Futurestep or KF as
"Selection Services" or "Response Management Services" or otherwise) to such
Client, within the twelve (12) month period after such Client was first referred
from Dow Xxxxx to Futurestep and became a Referred Response Management Service
Client, in connection with any advertisement printed in the WSJ.
For purposes of Section 9(c), "Response Management Services" shall not include
"Selection Services" or the provision of those products and services set forth
on Exhibit C in connection with a Selection Ad.
(n) "Selection Ad": KF operates an advertised recruitment business
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currently known as "KF Selection", which is conducted in both print and
electronic mediums. The term "Selection Ad" shall mean an advertisement paid for
by a Client, designed to publicize the availability of one or more employment
positions for one or more Clients for whom Futurestep or KF is providing
professional recruitment services and/or Selection Services. A Selection Ad
could be ordered and placed by either Futurestep or KF, or an advertising or
media placement agency working for Futurestep or KF. A "Selection Ad" shall not
include a "Recruitment Ad".
(o) "Selection Service" shall mean the providing of: (1) one or more of
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the products or services set forth on Exhibit C with respect to a Selection Ad;
or (2) such other new or amended or different product or service, or combination
of products or services, related to those products or services set forth on
Exhibit C and the Futurestep Business with respect to a Selection Ad, as may be
agreed upon in advance by Futurestep and Dow Xxxxx.
(p) "User Registration Page" shall mean the web page, hosted by
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Futurestep, which potential Registered Candidates complete as a prerequisite to
completing the questionnaires and/or other application forms online at the
Business Web Site.
(q) "WSJ" shall mean the Global, National, Eastern, Central (Midwest plus
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Southwest), and Western editions of the print newspaper The Wall Street Journal
(or their successor editions).
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(r) "WSJIE" shall mean the basic, subscription-based edition of The Wall
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Street Journal Interactive Edition, currently located at xxxx://xxx.xxx. "WSJIE"
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shall not include any "premium" or additional content available as part of or
through the basic edition of The Wall Street Journal Interactive Edition for
which there is an additional charge or fee, such as, for example, the Dow Xxxxx
Interactive Publications Library, or separately branded publications or areas
accessed through The Wall Street Journal Interactive Edition, such as, for
example, Xxxxxx'x Online or SmartMoney Interactive.
2. TERM OF AGREEMENT. Unless terminated earlier pursuant to a term in Section
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15 herein, the term of this Agreement shall commence on the Effective Date and
shall expire on the third anniversary of the Effective Date (the "Initial
Term"). Unless Dow Xxxxx or Futurestep delivers written notice of nonrenewal of
this Agreement to all other parties to this Agreement at least sixty (60) days
prior to the end of the then-current term, this Agreement shall automatically
renew for an additional one year term (each, a "Renewal Term"), upon the same
terms and conditions as in effect as of the expiration of the previous term
(except where a different term for a Renewal Term is set forth herein). The
Initial Term and all Renewals Terms (if any) shall collectively be defined as
the "Term".
3. TRADEMARK LICENSE.
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(a) Grant of License. Subject to the terms and conditions of this
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Agreement, Dow Xxxxx hereby grants to Futurestep a nontransferable, nonexclusive
(except to the extent expressly set forth in this Agreement), worldwide right
and license to use and refer to: (1) the xxxx THE WALL STREET JOURNAL as part of
the Business Tag Line and in accordance with this Agreement, in order to
indicate the source and origin of the Futurestep Business; and (2) the Dow Xxxxx
Marks solely in connection with the marketing and promotion of the Futurestep
Business and in accordance with this Agreement, in order to indicate the source
and origin of the Futurestep Business.
(b) Nonexclusive Grant. Subject only to the terms in Section 9(a), nothing
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in this Agreement shall be deemed to or interpreted or construed to restrict Dow
Xxxxx from licensing any one or more of the Dow Xxxxx Marks to any other person
at any time for any purpose.
(c) Reservation of Rights. All rights in or to any of the Dow Xxxxx Marks
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not expressly granted to Futurestep herein are expressly reserved and retained
by Dow Xxxxx.
(d) Quality Control; Prior Approval of Materials and Relationships.
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(1) Materials. Without first obtaining prior approval from Dow
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Jones's Relationship Manager (defined in Section 16(k)) of the manner and
context in which the Dow Xxxxx Marks are used, Futurestep shall not make,
publish or distribute, or cooperate with any third person in making, publishing
or distributing, any use of a Dow Xxxxx Xxxx in connection with the Futurestep
Business, the marketing or promotion of the Futurestep Business, or a public
statement regarding the execution or performance of this Agreement
(collectively, "Materials"). Materials shall include, without limitation, the
Futurestep home page for the Business Web Site,
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public announcements, press releases, advertising, and marketing and promotional
materials (whether in print, electronic or other form or media). Materials shall
not include (a) any Selection Ad; or (b) any verbal extemporaneous statements or
comments, or verbal responses to questions from the press. Futurestep shall
deliver Materials to Dow Jones's Relationship Manager for review of the manner
and context in which the Dow Xxxxx Marks are used. If Dow Xxxxx has not notified
Futurestep in writing of its disapproval within five (5) days after Futurestep
delivers samples of a particular item of Material, such Material shall be deemed
approved. Dow Jones's Relationship Manager shall not arbitrarily and
capriciously disapprove of the manner and context in which the Dow Xxxxx Marks
are used. If Dow Jones's Relationship Manager disapproves of the manner and
context in which the Dow Xxxxx Marks are used, he or she shall provide to
Futurestep's and KF's Relationship Managers reasons, in writing, for the
disapproval, and Dow Xxxxx will use good faith efforts to resolve any
disagreement with Futurestep regarding such disapproval.
(2) "Manner and Context". When used in this Agreement, the phrase
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"manner and context in which the Dow Xxxxx Marks are used" shall include,
without limitation: (a) a review by Dow Xxxxx of its legal and contractual
ability to permit Futurestep to use the Dow Xxxxx Xxxx(s) in such Material, or
in connection with the business or agreement or arrangement being referred to in
the Material; and (b) a review by Dow Xxxxx of its business desire to have a Dow
Xxxxx Xxxx used in connection with the business or agreement or arrangement.
(3) Approval of Certain Associations with Certain Third Persons. In
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part to enable Dow Xxxxx to effectively exercise quality control over the
products and services associated with the Dow Xxxxx Marks, Futurestep will not,
without the prior written consent from Dow Jones's Relationship Manager, enter
into any contract, association, partnership, affiliation, or business
relationship (each, an "Association") with any of the following third persons
(other than Clients), in connection with or related to the Futurestep Business,
pursuant to which any Dow Xxxxx Xxxx is used or will be used: (1) third persons
who directly compete with Dow Xxxxx; (2) third persons who are in businesses
from whom Dow Xxxxx will not accept advertising, according to Dow Jones's then-
current advertising policies; (3) third persons with whom Dow Xxxxx was not
legally or contractually able to permit one of the Dow Xxxxx Marks to be
associated with; (4) third persons with whom Dow Xxxxx was then, or recently had
been, involved in litigation or other legal dispute resolution proceeding; or
(5) third persons who have a severe and well-known negative public reputation.
Dow Xxxxx shall not unreasonably withhold its written consent to any such
proposed Association. If Dow Jones's Relationship Manager has not notified
Futurestep and KF in writing of Dow Jones's disapproval within five (5) days
after Futurestep's Relationship Manager provides reasonably detailed information
regarding the overall nature of the proposed Association and identity of
individuals or entities involved in such proposed Association, such proposed
Association shall be deemed approved. If Dow Jones's Relationship Manager
disapproves of the proposed Association, he or she shall provide to Futurestep's
and KF's Relationship Managers reasons, in writing, for the disapproval, and Dow
Xxxxx will use good faith efforts to resolve any disagreement with Futurestep
regarding such disapproval. Dow Xxxxx will not arbitrarily or capriciously
exercise the rights granted pursuant to this Section of the Agreement.
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(4) Notice of Trademarks. Immediately following the first reference
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to a Dow Xxxxx Xxxx in any written or electronic Material, Futurestep shall
include the trademark symbol (e.g., (R) or (TM)) for each Dow Xxxxx Xxxx that
Dow Xxxxx indicates to Futurestep is appropriate. Unless impracticable due to
space limitations, Futurestep and KF shall use the following notice (or such
similar language as may be approved in advance in writing by Dow Xxxxx) when
referring to any of the Dow Xxxxx Marks in any print Materials: [Insert Dow
Xxxxx Xxxx] is a trademark of Dow Xxxxx & Company, Inc. and licensed to
Futurestep for use for certain purposes.
(5) Goodwill. Futurestep shall use its best efforts to protect the
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goodwill and reputation of Dow Xxxxx, The Wall Street Journal, and the Dow Xxxxx
Marks, in connection with the use of the Dow Xxxxx Marks under this Agreement.
Futurestep and KF acknowledge and agree that the submission of Materials and
information regarding proposed Associations for prior review and approval is a
reasonable exercise of control by Dow Xxxxx over the quality of the goods and
services provided by the Futurestep Business.
(6) Additional Quality Control. Futurestep shall, at all times during
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the Term, operate the Futurestep Business in accordance with the highest
standards of professionalism and business practices, and operate the Futurestep
Business in accordance with all applicable laws, rules and regulations.
Futurestep shall not perform, or fail to perform, any act which, in Dow Jones's
sole opinion, materially adversely reflects upon the business reputation of
Futurestep or Dow Xxxxx, or in any way diminishes or tarnishes the reputation of
Dow Xxxxx or any of the Dow Xxxxx Marks. If at any time Dow Xxxxx is of the
opinion that Futurestep is not properly using any of the Dow Xxxxx Marks in
connection with the Futurestep Business, or that the standard of quality of any
of the Futurestep Business's products or services does not conform with Dow
Jones's standards for use of a Dow Xxxxx Xxxx, Dow Xxxxx shall deliver written
notice to Futurestep and KF to that effect. Upon receipt of such notice,
Futurestep and KF shall forthwith correct the deficiencies noted to Dow Jones's
reasonable satisfaction.
(e) Trademark Registration Filings. During the Term, Dow Xxxxx shall apply
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for trademark registrations for the Dow Xxxxx Marks only in such jurisdictions,
if any, where Dow Xxxxx, in its sole discretion, considers such filings
appropriate. Futurestep and KF shall reasonably cooperate with Dow Xxxxx, at Dow
Jones's sole expense, in the maintenance of such rights and registrations and
shall do such acts and execute such instruments as Dow Xxxxx determines is
reasonably necessary or appropriate for such purpose.
(f) Ownership of Marks and Goodwill. Futurestep and KF agree that the Dow
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Xxxxx Marks and all intellectual property and other rights, registrations and
entitlement thereto, together with all applications, registrations and filings
with respect to any of the Dow Xxxxx Marks and any renewals and extensions of
any such applications, registration and filings, are and shall remain the sole
and exclusive property of Dow Xxxxx. Futurestep and KF acknowledge that each of
the Dow Xxxxx Marks is part of the business and goodwill of Dow Xxxxx.
Futurestep and KF recognize the great value of the reputation and goodwill
associated with the Dow Xxxxx Marks and acknowledge that such goodwill
associated with the Dow Xxxxx Marks belongs exclusively to Dow Xxxxx, and that
Dow Xxxxx is the owner of all right, title and interest in and to the Dow
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Xxxxx Marks. Futurestep and KF shall never, either directly or indirectly,
contest Dow Jones's exclusive ownership of any of the Dow Xxxxx Marks. In the
event that Dow Xxxxx consents to, and Futurestep or KF uses any Dow Xxxxx Marks
in conjunction with Futurestep's and KF's own trademark(s), such resulting xxxx
shall be owned jointly by Dow Xxxxx, on the one hand, and KF and Futurestep, as
applicable, on the other hand, and the use of such composite xxxx will remain
subject to this Agreement as it relates to the Dow Xxxxx Marks. With respect to
any such composite xxxx: (1) neither Futurestep, KF nor Dow Xxxxx shall register
or apply for registration of such xxxx; (2) neither Futurestep, KF nor Dow Xxxxx
shall use such xxxx except in accordance with this Agreement; and (3) after
termination or expiration of this Agreement, Dow Xxxxx shall disclaim ownership
rights in Futurestep's and/or KF's own trademark forming a part of such xxxx and
shall assign to Futurestep and/or KF any rights in Futurestep's and/or KF's own
trademark forming a part of such xxxx and the goodwill associated therewith that
Dow Xxxxx might have acquired during the Term; and (4) after termination or
expiration of this Agreement, Futurestep and KF shall disclaim ownership rights
in the Dow Xxxxx Marks forming a part of such composite xxxx and shall assign to
Dow Xxxxx any rights in the Dow Xxxxx Marks forming a part of such composite
xxxx and goodwill associated therewith that Futurestep or KF might have acquired
during the Term. Nothing in this Agreement grants Dow Xxxxx any right, title or
interest in the Futurestep Business.
(g) Alleged Infringements. In the event that Futurestep or KF has
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knowledge of any infringement or imitation of any of the Dow Xxxxx Marks, or of
any use by any person of a trademark similar to any of the Dow Xxxxx Marks, it
shall promptly notify Dow Xxxxx. Dow Xxxxx shall take such action as it deems
advisable for the protection of rights in and to the Dow Xxxxx Marks and, if
requested to do so by Dow Xxxxx, Futurestep and KF shall cooperate with Dow
Xxxxx in all respects, at Dow Jones's expense, including, without limitation, by
being a plaintiff or co-plaintiff and, upon Dow Jones's reasonable request, by
causing its officers to execute appropriate pleadings and other necessary
documents. In no event, however, shall Dow Xxxxx be required to take any action
it deems inadvisable. Futurestep and KF shall have no right to take any action
which would materially and adversely affect any of the Dow Xxxxx Marks without
Dow Jones's prior written approval.
(h) Use of Business Tag Line. During the Term, Futurestep shall use the
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Business Tag Line in all Materials, except: (1) in "tile" advertisements on the
World Wide Web or other instances where space does not permit inclusion of the
Business Tag Line; (2) when prohibited pursuant to a term in this Agreement; (3)
on the outside of envelopes used in direct mail campaigns; and (4) when agreed
otherwise by Dow Jones's Relationship Manager.
4. PRINT MEDIA ADVERTISING.
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(a) WSJ and NBEW. Futurestep and KF shall, jointly and severally, pay Dow
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Xxxxx a minimum aggregate payment for each twelve-month period during the Term
(the "Annual Minimum Payment"). The Annual Minimum Payment shall mean:
(1) for the first twelve-month period of the Initial Term, Two Million
Five Hundred Thousand Dollars ($2,500,000) in Net Ad Revenues (the "First
Year Minimum
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Payment"), in connection with Business Ads purchased and published in the WSJ
and/or NBEW during the first twelve-month period of the Initial Term;
(2) for the second twelve-month period of the Initial Term Three
Million Dollars ($3,000,000) in Net Ad Revenues (the "Second Year Minimum
Payment"), in the connection with Business Ads published in the WSJ and/or NBEW
during the second twelve-month period of the Initial Term;
(3) for the third twelve-month period of the Initial Term Four Million
Dollars ($4,000,000) in Net Ad Revenues (the "Third Year Minimum Payment"), in
connection with Business Ads published in the WSJ and/or NBEW during the third
year of the Initial Term; and
(4) for each twleve-month period of any Renewal Term (if any), a
payment equal to at least the Annual Minimum Payment from the immediately
preceding twelve-month period, plus the PPI Adjustment. The "PPI Adjustment"
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shall mean an adjustment based upon the percentage increase in the United States
Department of Labor Bureau of Labor Statistics Producer Price Index for Finished
Goods (1982=100) or its successor index ("PPI"), for the immediately preceding
twelve month period. (As an example only, if the PPI for the third year of the
Initial Term equaled five percent (5%), the Annual Minimum Payment for the first
Renewal Term of the Agreement would equal $4,200,000 [$4,000,000 the Third Year
Minimum, x 1.05 = $4,200,000]. If the PPI for the first Renewal Term would
equaled six percent (6%), the Annual Minimum Payment for the second Renewal Term
would equal $4,452,000 [$4,200,000 x 1.06 = $4,452,000].
(b) Business Ads Only. Amounts spent for Selection Ads or Recruitment Ads
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shall not be counted when calculating whether Futurestep and KF fulfilled the
Annual Minimum Payment obligations set forth in Section 4(a).
(c) Reduced Advertising Rates; Subject to Rate Card Terms. In connection
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with Business Ads and Selection Ads published in the WSJ and/or NBEW during the
Term, Dow Xxxxx will xxxx Futurestep or KF, as applicable, at the rates set
forth in Exhibit B. The purchase and publication of Business Ads and Selection
Ads shall otherwise be subject to and governed by the terms set forth in the
then-current applicable classified advertising rate card; provided, however,
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that in the event of a conflict between a term in this Agreement and in such
rate card, the term in this Agreement shall govern such ad purchase and
publication.
(d) Payment Terms; Ads in Excess of Minimum. Futurestep and KF will pay
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for the Business Ads and Selection Ads published in the WSJ and/or NBEW at the
times set forth in the then-current classified advertising rate card. If
Futurestep and KF purchase and pay for Business Ads published in the WSJ and/or
NBEW in excess of the minimum amount for a particular one-year period set forth
in Section 4(a), the dollar amount in excess of the minimum payment required
shall be credited toward the minimum payment required during the immediately-
following one-year period. (As an example only, if Futurestep and KF purchased
and paid for $3,500,000 in Net Ad Revenues in connection with Business Ads
during the second twelve-month period of the Initial Term, Dow Xxxxx would
credit $500,000 toward the Third Year Minimum Payment obligation, and Futurestep
and KF would be obligated to pay $3,500,000, not
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$4,000,000 in Net Ad Revenues in connection with Business Ads during the third
twelve-month period of the Initial Term.)
(e) Limited Exclusivity.
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(1) During the Term, without obtaining Dow Jones's prior written
consent, neither Futurestep nor KF shall, directly or indirectly, purchase or
otherwise place a Business Ad for the Futurestep Business in any print
newspaper, other than the WSJ, NBEW, or another print publication in which Dow
Xxxxx owns, directly or indirectly, a fifty percent (50%) or greater interest.
(2) Notwithstanding Section 4(e)(1), Futurestep and/or KF shall be
entitled to purchase or otherwise place Business Ads for the Futurestep Business
in local, city or regional newspapers during the * period following the date on
which the Futurestep Business is first "launched" in such locale, city or
region, provided that Futurestep and/or KF must also purchase or otherwise place
at lease one (1) Business Ad for the Futurestep Business in the edition of the
print WSJ that includes or most nearly covers such locale, city or region during
the first two (2) week period following the date on which the Futurestep
Business is first "launched" in such locale, city or region. For purposes of
this Section 4(e)(2), the Futurestep Business shall have been "launched" in a
particular locale, city or region when local media (print or radio) has been
used to advertise the Futurestep Business in such locale, city or region.
(3) This Section 4(e) shall not affect or limit the right of
Futurestep and/or KF to purchase or otherwise place Business Ads in vertical
newspaper publications designed for specific audiences (e.g., engineers,
computer programmers, et cetera).
5. INTERNET ADVERTISING.
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(a) "Tile Position" on xxxxxxx.xxx.xxx; Monthly Tile Position Ad Fee.
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During the Initial Term, Futurestep and KF shall, jointly and severally, pay Dow
Xxxxx a total of Thirty-Six Thousand One Hundred Eleven Dollars ($36,111) per
month in Net Ad Revenues (the "Monthly Tile Position Ad Fee"), in connection
with Business Ads purchased and published during such month in the Tile Position
Ad (as defined in Section 5(b)) of each web page of the xxxxxxx.xxx.xxx site.
Unless agreed otherwise by Futurestep and Dow Xxxxx prior to the commencement of
a Renewal Term, during each Renewal Term (if any), Futurestep and KF shall,
jointly and severally, pay Dow Xxxxx a total Monthly Tile Position Ad Fee equal
to the Monthly Tile Position Ad Fee in effect during the immediately preceding
twelve-month period, plus the PPI Adjustment. (As an example only, if the PPI
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for the third twelve-month period of the Initial Term equaled five percent(5%),
the Monthly Tile Position Ad Fee for the first Renewal Term of the Agreement
would equal $37,917 per month [$36,111 x 1.05 = $37,917]. If the PPI for the
first Renewal Term equaled six percent (6%), the Monthly Tile Position Ad Fee
for the second Renewal Term would equal $40,192 per month [$37,917 x 1.06
=$40,192].
(b) Exclusive Use of Tile Position Ad. During the Term, Futurestep and KF
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shall be entitled to the exclusive use of the Tile Position Ad on each page of
the xxxxxxx.xxx.xxx internet
* Confidential portions omitted and filed separately with the Commission.
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site, for Business Ads. The "Tile Position Ad" shall be defined as the "tile
ad", measuring 60 pixels by 60 pixels, located in the left side navigation bar
of each page of the xxxxxxx.xxx.xxx internet site. The Tile Position Ad shall
always be visible in its entirety on a full screen basis without the need for
scrolling, shall be in the same position on each page of the xxxxxxx.xxx.xxx
internet site that contains the left column navigation bar, shall not rotate
with any other ads, and shall have the capability of being both static and
dynamic (e.g., flashing, changing, et cetera). The Tile Position Ad will link to
the Intermediate Page (as defined below). During the Term, without Futurestep's
prior consent, Dow Xxxxx will not sell or otherwise place any other "tile ad" on
a page of the xxxxxxx.xxx.xxx site, that is: (1) purchased by or promotes a
third person that competes with Futurestep, or that advertises a service that
competes with the Futurestep Business; or (2) placed above the Tile Position Ad
on the screen display. Nothing in this Agreement is intended to, or shall be
construed or interpreted to, limit Dow Jones's ability to place "banner ads" or
sponsorships on pages of the xxxxxxx.xxx.xxx web site.
(c) Subject to Rate Card. In connection with Business Ads (other than the
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Tile Position Ad) and/or Selection Ads in xxxxxxx.xxx.xxx during the Term, Dow
Xxxxx will charge Futurestep or KF, as applicable, forty percent (40%) of the
rates set forth on the then-current applicable rate card for xxxxxxx.xxx.xxx.
The purchase and publication of the Tile Position Ad, and any other Business Ads
or Selection Ads by Futurestep or KF in xxxxxxx.xxx.xxx, shall otherwise be
subject to and governed by the terms set forth in the then-current applicable
rate card for xxxxxxx.xxx.xxx; provided, however, that in the event of a
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conflict between a term in this Agreement and such rate card, the term in this
agreement shall govern such ad purchase and publication.
(d) Limited Exclusivity. During the Term, without obtaining Dow Jones's
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prior written consent, neither Futurestep nor KF shall, directly or indirectly,
purchase a Business Ad for the Futurestep Business to appear on any other
newspaper site or newspaper web page on the Internet, other than WSJIE,
xxxxxxx.xxx.xxx site, or another web site in which Dow Xxxxx owns, directly or
indirectly, a fifty percent (50%) or greater interest.
6. ADDITIONAL PROMOTIONAL OBLIGATIONS.
----------------------------------
(a) Promotion of Dow Xxxxx Publications for Selection Ads. Futurestep and
-----------------------------------------------------
KF shall use reasonable commercial efforts to cause Futurestep and KF Selection
recruiting professionals to promote, where appropriate, the purchase by Clients
of Selection Ads to be published in WSJ, NBEW, WSJIE xxxxxxx.xxx.xxx, and other
print, Internet, and forms of media in which Dow Xxxxx owns, directly or
indirectly, a fifty percent (50%) or greater interest.
(b) References to xxxxxxx.xxx.xxx in Print Ads. During the Term,
------------------------------------------
Futurestep shall include at least one reference to xxxxxxx.xxx.xxx in all of its
Business Ads for the Futurestep Business appearing in print media, unless agreed
otherwise in advance by Dow Xxxxx for a particular advertisement; provided,
however, that the requirements of this Section 6(b) shall not apply in a market
during the first four (4) calendar months following the date on which the
Futurestep Business is first "launched" in such market. For purposes of this
Section 6(b), "launched" shall have the same meaning as set forth in section
4(e)(2).
10
(c) Links from xxxxxxx.xxx.xxx to the Business Web Site. During the Term,
---------------------------------------------------
Dow Xxxxx shall include on the WSJIE home page a link to and description of
xxxxxxx.xxx.xxx as a free feature, which shall include a reference to and brief
explanation of the Futurestep Business. During the Term, Dow Xxxxx shall include
on the xxxxxxx.xxx.xxx front page a link, positioned near the JobSeek database
logo or its successor, to an intermediate page, hosted on a Dow Xxxxx server and
co-branded with the xxxxxxx.xxx.xxx and Futurestep trade names, which contains
an explanation of the Futurestep Business prepared by Futurestep (the
"Intermediate Page"). Dow Xxxxx and Futurestep shall mutually agree upon the
design of and text on this Intermediate Page. This Intermediate Page shall
contain at least one link to the User Registration Page and at least one link to
return to xxxxxxx.xxx.xxx.
(d) Links from the Business Web Site to Dow Xxxxx Sites. During the Term,
---------------------------------------------------
Futurestep shall include at least one link to the xxxxxxx.xxx.xxx front page on
each home page Futurestep creates or has created for each Registered Candidate,
and at least one link to an editorial section within xxxxxxx.xxx.xxx from each
"table of contents" or navigation bar or index or directory or similar listing
of areas on the Business Web Site. Each of the links referred to in the
preceding sentence shall always be visible in its entirety on a full screen
basis without the need for scrolling, and shall appear in the same position on
each page of the Business Web Site where such link is required in the preceding
sentence to be included. During the Term, Futurestep shall include a link to the
WSJIE home page from each display of the "xxx.xxx" logo, "WSJ" logo, or the
words "The Wall Street Journal" as part of the branding on the Business Web
Site, and as part of the Business Tag Line when the Business Tag Line is
displayed on the Business Web Site.
(e) Electronic Messages to Registered Candidates. Upon request by Dow
--------------------------------------------
Xxxxx, not more often than once a week but at least once each three (3) months
throughout the Term, Futurestep shall post an electronic message to each
Registered Candidate's mailbox on the Business Web Site, containing promotions
for WSJIE or articles from WSJIE and/or xxxxxxx.xxx.xxx, unless Futurestep is
prohibited by law from posting such electronic messages. In the event a
particular Registered Candidate has indicated to Futurestep that he or she does
not want to receive electronic messages, or sending such electronic message
would violate applicable law, then Futurestep shall not be required to send or
post such electronic messages to such Registered Candidates. Dow Xxxxx shall be
responsible for creating and delivering, in HTML format or other format mutually
agreeable to Futurestep and Dow Xxxxx, the content of the materials to be sent
in such electronic messages. The content of the materials to be sent in such
electronic messages shall be consistent with the standards of professionalism
and business practices under which the Futurestep Business is operated and shall
comply with all applicable laws, rules and regulations.
(f) Additional Promotions. Futurestep and Dow Xxxxx shall use reasonable
---------------------
commercial efforts to agree upon additional joint promotional activities in
connection with the Futurestep Business, including but not limited to the
issuance of a joint press release following execution of this Agreement by all
parties, and another joint press release upon the "re-launch"
11
of the Futurestep Business using the Business Tag Line. (Such press releases
shall be subject to prior review and approval pursuant to Section 3(d)(1) of
this Agreement.)
(g) Other Links.
-----------
(1) During the Term, Futurestep and KF shall not include links from
their respective web sites to other web sites that directly compete with the
xxxxxxx.xxx.xxx web site Business, except for links to and from: (y) the KF
Selection and/or KF web site home pages; or (z) the Decision Dynamics Group web
site and a fulfillment center on the Internet where books, articles or other
publications authored by Decision Dynamics Group can be reviewed and/or
purchased.
(2) During the Term, Futurestep shall not include links from its web
site to portions of other web sites owned or operated by, or branded with the
name or trademark of, a third person that directly competes with the Dow Xxxxx
Business, or a portion of a web site that directly competes with an existing web
site in which Dow Xxxxx owns, directly or indirectly, a fifty percent (50%) or
greater interest, which existing web sites are listed in Exhibit E, except for
links to the KF Selection and/or KF web sites. During the Term, KF shall not
include links from its web site to portions of other web sites owned or operated
by, or branded with the name or trademark of, a third person that directly
competes with the xxxxxxx.xxx.xxx web site Business, except for links to the
Futurestep and/or KF Selection web site.
(3) During the Term, Dow Xxxxx shall not, directly or indirectly,
through WSJIE or xxxxxxx.xxx.xxx, include links from the WSJIE or
xxxxxxx.xxx.xxx web sites to: (a) other web sites that directly compete with the
Futurestep Business or the KF Business; or (b) portions of other web sites owned
or operated by, or branded with the name or trademark of, a third person that
directly competes with the Futurestep Business or the KF Business. Nothing in
this Agreement, including the foregoing sentence, shall restrict or limit Dow
Xxxxx from including links from the WSJIE or xxxxxxx.xxx.xxx web sites: (y)
embedded within news stories, "briefing books", or other news and editorial
content published at the WSJIE or xxxxxxx.xxx.xxx web sites; or (z) in
connection with contractual obligations binding Dow Xxxxx as of the Effective
Date or the Career Development Services web site.
(4) Other than as set forth in this Section 6(g) of the Agreement,
and other than the trademark license terms set forth in Section 3(d), nothing
contained in this Agreement shall prevent or restrict any party to this
Agreement who maintains a site on the Internet from having a link to one or more
other sites on the Internet maintained by them or others. Nothing in this
Section 6(g) shall prevent a party from accepting a web site advertisement that
includes an embedded link to another web site.
7. RESPONSE MANAGEMENT SERVICE OBLIGATIONS.
---------------------------------------
(a) Promotion of Futurestep's Response Management Services. Dow Xxxxx
------------------------------------------------------
shall use reasonable commercial efforts to cause the appropriate Dow Xxxxx
Classified Advertising salespeople to promote, where appropriate, Futurestep's
Response Management Services to
12
companies purchasing, and companies considering purchasing, Recruitment Ads in
the WSJ. Dow Xxxxx shall create and prepare, at its expense, print materials
approved by Futurestep describing the Response Management Services, for
distribution in connection with such promotion. Dow Xxxxx shall refer all
inquiries regarding the Response Management Services or other aspects of the
Futurestep Business to Futurestep.
(b) Tracking and Response Management Service Referral Fee.
-----------------------------------------------------
(1) Futurestep and Dow Xxxxx shall agree upon a system, to be
operated by Futurestep at Futurestep's expense, to track the number and
identities of companies referred by Dow Xxxxx to Futurestep for potential
purchase of Response Management Services with respect to a particular
Recruitment Ad. A company referred by Dow Xxxxx to Futurestep that actually
purchases on or more of the Response Management Services during the Term with
respect to a particular Recruitment Ad, shall be defined as a "Referred Response
Management Service Client."
(2) Futurestep and KF, jointly and severally, shall pay Dow Xxxxx
a fee (the "Response Management Service Referral Fee") equal to twenty percent
(20%) of all "compensation" billed to a Referred Response Management Service
Client:
(a) for Response Management Services provided by Futurestep or
KF during the Term with respect to a particular Recruitment Ad; and
(b) in connection with Futurestep or KF providing any of the
products or services set forth on Exhibit C (whether referred to by Futurestep
or KF as "Selection Services" or "Response Management Services" or otherwise) to
such Client, during the Term and within the twelve (12) month period after such
Client was first referred from Dow Xxxxx to Futurestep and became a Referred
Response Management Service Client, in connection with any advertisement printed
in the WSJ.
(3) For purposes of this Section 7(b), the term "compensation" shall
mean the gross compensation billed to a Referred Response Management Service
Client, less all direct out-of-pocket expenses incurred by Futurestep and KF in
connection with the provision of such Response Management Services which are
separately listed on bills to such Referred Response Management Service Client
as separate and additional "pass-through" expenses, without markup or profit by
Futurestep or KF (which might include, for example only, travel expenses or
expenses for video conferencing).
(c) Customer Relationship with Futurestep. Futurestep shall be
-------------------------------------
responsible for entering into all business and contractual relationships with
Referred Response Management Service Clients. Dow Xxxxx shall not be a party to,
or be liable in connection with, any business or contractual relationship
between a Referred Response Management Service Client and Futurestep. Neither
Futurestep nor KF shall express or imply that Dow Xxxxx is a party to, or liable
for, any business or contractual relationship between a Referred Response
Management Service Client and Futurestep.
13
8. CANDIDATE PLACEMENT FEE.
------------------------
(a) Registration System. Futurestep shall develop and implement an online
-------------------
system at the Business Web Site by which all individuals interested in being
considered for employment must complete an online application form or forms (the
"Registration System"). The Registration System shall include the User
Registration Page. Futurestep shall develop and implement the Registration
System at its own expense and in accordance with this Agreement. In order to
protect the Dow Xxxxx Marks, Dow Xxxxx shall have the right to review and
approve the operation of the Registration System prior to its implementation,
and prior to implementation of any significant revision. Dow Xxxxx will not
unreasonably withhold or delay its approval of the Registration System. By
executing this Agreement, Dow Xxxxx is deemed to have approved the Registration
System as it exists immediately prior to the date and time of such execution by
Dow Xxxxx. If Futurestep does not receive from Dow Xxxxx written disapproval of
any Registration System revisions within five (5) days after receiving written
notice from Futurestep requesting such approval, then Dow Xxxxx shall be deemed
to have approved such revisions.
(b) Tracking Obligations.
--------------------
(1) Tracking Registered Candidates Using the Registration System.
------------------------------------------------------------
Futurestep shall design the User Registration Page so that every potential
Registered Candidate must respond to the following question (or a substantially
similar question approved in advance by Dow Xxxxx): "Where did you hear about
Futurestep?" (the "Question"). During the first twelve months of the Initial
Term, Futurestep shall list The Wall Street Journal in the top position in the
list of sources/answers to the Question. Beginning after the end of the first
twelve months of the Initial Term and continuing until the end of the Term,
Futurestep shall list The Wall Street Journal in the second position in the list
of sources/answers to the Question ("radio" will be listed in the top position).
(2) Tracking Individuals Linking From the Intermediate Page.
-------------------------------------------------------
Futurestep also shall track the number of individuals coming to the Business Web
Site or the User Registration Page from a link from xxxxxxx.xxx.xxx, the
Intermediate Page, or other web site (not including an embedded link in a
Futurestep or KF advertisement in such other web site) in which Dow Xxxxx owns,
directly or indirectly, a fifty percent (50%) or greater interest, and the
identity of such individuals who become Registered Candidates. Dow Xxxxx will
notify Futurestep at least ten (10) days in advance of adding a link to the
Business Web Site from a new Dow Xxxxx web site, in order to enable Futurestep
to take steps necessary to track these individuals.
(c) Candidate Placement Fee. Futurestep and KF shall, jointly and
-----------------------
severally, pay Dow Xxxxx, a one-time fee (the "Candidate Placement Fee") of:
(1) * for each Registered Candidate:
(a) (i) who indicated The Wall Street Journal when answering
the Question in the User Registration Page; or
* Confidential portions omitted and filed separately with the Commission
14
(ii) who became a Registered Candidate directly as a result of
the links from xxxxxxx.xxx.xxx, the Intermediate Page, or other web site (not
including an embedded link in a Futurestep or KF advertisement in such other web
site) in which Dow Xxxxx owns, directly or indirectly, a fifty percent (50%) or
greater interest; and
---
(b) that Futurestep or KF first place in a job within eighteen
(18) months after the date such Registered Candidate first completed the User
Registration Page.
(2) * for each Registered Candidate
(a) (i) who indicated The Wall Street Journal when answering
the Question in the User Registration Page; or
(ii) who became a Registered Candidate directly as a result
of the links from xxxxxxx.xxx.xxx, the Intermediate Page, or other web site (not
including an embedded link in a Futurestep or KF advertisement in such other web
site) in which Dow Xxxxx owns, directly or indirectly, a fifty percent (50%) or
greater interest; and
---
(b) that Futurestep or KF place in a second or subsequent job
within eighteen (18) months after the date such Registered Candidate first
completed the User Registration Page.
(d) Continuation of Tracking from the Question. Futurestep shall continue
------------------------------------------
to list The Wall Street Journal as a possible answer to the Question, and
maintain the Question within the Registration System and User Registration Page:
(1) for at least six (6) months after the termination of this
Agreement, if this Agreement is terminated prior to the end of one (1) year
after the Effective Date;
(2) for at least nine (9) months after the termination of this
Agreement, if this Agreement is terminated at least one (1) year after, but
prior to the end of two (2) years after, the Effective Date; and
(3) for at least twelve (12) months after the termination or
expiration of this Agreement, if this Agreement is terminated or expires at
least two (2) years after the Effective Date.
The obligation to pay the Candidate Placement Fee shall apply to Registered
Candidates who first became Registered Candidates during the period of time
during which the Question is required to be maintained pursuant to this
Agreement, and shall survive the expiration or termination of this Agreement for
any reason.
* Confidential portions omitted and filed separately with the Commission.
15
9. LIMITATIONS ON OTHER BUSINESS ACTIVITIES.
----------------------------------------
(a) Use of Xxxx to Promote Competing Business. During the Term, and for
-----------------------------------------
one year following the expiration or termination of this Agreement for any
reason, except for contractual obligations binding Dow Xxxxx as of the Effective
Date and except for the xxxxxxx.xxx.xxx web site Business, WSJIE, and NBEW, Dow
Xxxxx will not, directly or indirectly, promote or offer or use any of the Dow
Xxxxx Marks, or license any of the Dow Xxxxx Marks for use, to promote or offer
a product or service that directly or indirectly competes with the Futurestep
Business and/or the KF Business, including without limitation Futurestep's and
KF's Response Management Services and KF Selection. During the Term, and for one
year following the expiration or termination of this Agreement for any reason,
Dow Xxxxx will not, directly or indirectly (except for its Xxxxxxx Newspapers
subsidiary), promote, use or offer any Response Management Services, or services
substantially similar to and competitive with Response Management Services,
whether or not utilizing or in conjunction with the use of one or more of the
Dow Xxxxx Marks, other than Futurestep's or KF's Response Management Services
(except for its Xxxxxxx Newspapers subsidiary); provided, however, that Dow
-----------------
Xxxxx may list other advertising agencies that may also happen to offer Response
Management Services, or services substantially similar to and competitive with
Response Management Services, in response to inquiries from potential and actual
advertisers. Notwithstanding the foregoing sentences or anything in this
Agreement to the contrary, Dow Xxxxx may accept and publish advertisements in
any media from any third person or service, including, without limitation, a
third person or service that competes with Futurestep or KF or is similar to the
Futurestep Business, including but not limited to the Response Management
Services. Nothing in this Agreement shall limit or restrict Dow Jones's ability
to report news and information regarding Futurestep, KF, or any third person.
(b) No Resume Database. During the Term, Dow Xxxxx will not create or
------------------
operate, itself or in partnership or association with a third person, an online
database of job placement candidates or of resumes from individuals seeking
employment with third persons. Notwithstanding the foregoing sentence or
anything in this Agreement to the contrary, Dow Xxxxx may create and operate, or
retain a third person to create and/or operate on its behalf, an online database
of job placement candidates, or of resumes from individuals who have submitted
employment inquiries or resumes to Dow Xxxxx or its affiliates, seeking
employment with Dow Xxxxx or its affiliates. Notwithstanding anything in this
Agreement to the contrary, Dow Xxxxx may create and operate, or retain a third
person to create and/operate on its behalf, an online database of information
from Dow Xxxxx customers and visitors to Dow Xxxxx web sites, where the
principal purpose of such database is not the listing of names of individuals
seeking employment and where such database is not marketed or promoted as such.
(c) Response Management Services. During the Term, unless agreed otherwise
----------------------------
in advance by Dow Jones's Relationship Manager for a particular potential
Client, Futurestep and KF shall provide Response Management Services solely to
Clients who also purchase a Recruitment Ad published in the WSJ or other print
publication in which Dow Xxxxx owns, directly or indirectly, a fifty percent
(50%) or greater interest, or published in WSJIE or xxxxxxx.xxx.xxx. During the
Term, unless agreed otherwise in advance by Dow Jones's Relationship Manager for
a particular potential Client, neither Futurestep nor KF shall provide
16
Response Management Services to any third person in connection with a
Recruitment Ad which was not published in the WSJ or other print publication in
which Dow Xxxxx owns, directly or indirectly, a fifty percent (50%) or greater
interest, or published in WSJIE or xxxxxxx.xxx.xxx.
For purposes of this Section 9(c), "Response Management Services" shall not
include "Selection Services" or the provision of those products and services set
forth on Exhibit C in connection with a Selection Ad.
(d) No Online Job Database; Definition of "KF Database". During the Term,
--------------------------------------------------
except for the KF Database (as defined below), neither Futurestep nor KF will
create or operate, itself or in partnership or association with a third person,
an online database of available employment opportunities with third persons,
which individuals seeking employment can search electronically. During the Term,
except for the KF Database (as defined below), neither Futurestep nor KF will
create or operate, itself or in partnership or association with a third person,
a web site that competes with the xxxxxxx.xxx.xxx web site Business as it is
then being published and which contains features and functions similar to those
available at that time on xxxxxxx.xxx.xxx. "KF Database" shall mean an online
database of available employment opportunities with third persons who have
retained Futurestep and/or KF to provide search, recruitment, or selection
services for such third persons, but does not contain any listings or employment
opportunities from third persons who have not retained Futurestep or KF to
provide either search, recruitment, or selection services for such third
persons.
(e) No Content Branded with a Competitor's Brand. During the Term, without
--------------------------------------------
Dow Jones's prior consent, which consent will not be unreasonably withheld,
Futurestep shall not include on any web page within the Business Web Site
business or financial news or information branded or identified with the name or
trademark of a competitor of Dow Xxxxx in the business of providing business and
financial news and information.
(f) No Promotion Using a Competitor's Brand. During the Term, and for one
---------------------------------------
year following the expiration or termination of this Agreement for any reason,
neither Futurestep nor KF shall, directly or indirectly, operate or promote the
Futurestep Business, or a business substantially similar to the Futurestep
Business, using the name or trademark or logo of a third person or entity which
competes with WSJ, NBEW, WSJIE, or the xxxxxxx.xxx.xxx web site Business.
10. PAYMENT AND REPORTING TERMS; TAXES.
----------------------------------
(a) Response Management Services Referral Fee and Candidate Placement Fee.
---------------------------------------------------------------------
Within forty-five (45) days after the end of each calendar quarter during the
Term, Futurestep shall deliver to Dow Xxxxx a check or bank wire transfer equal
to the Response Management Service Referral Fee and Candidate Placement Fee owed
for such calendar quarter. In addition, Futurestep shall deliver to Dow Xxxxx
with each payment a report (the "Report") for such calendar quarter, setting
forth a list of: fees billed to Referred Response Management Service Clients
during the quarter covered by the Report and the identity of such Clients; the
number of Registered Candidates, as of the end of such calendar quarter, for
whom Dow Xxxxx is owed a
17
Candidate Placement Fee; the total number of Registered Candidates, as of the
end of such calendar quarter, who have not yet been placed in employment and for
whom Dow Xxxxx might be eligible to receive a Candidate Placement Fee in the
future; such additional information sufficient for Dow Xxxxx to determine how
the payment was calculated; and any other information agreed upon by Futurestep
and Dow Xxxxx.
(b) Each Party to Bear Its Expenses. Except as expressly set forth
-------------------------------
otherwise in this Agreement, each party shall bear all of its respective costs
and expenses in connection with the execution and performance of this Agreement
and the grant of licenses herein.
(c) Maintenance and Inspection of Records. Futurestep shall maintain
-------------------------------------
complete and accurate books and records, in accordance with generally accepted
accounting practices, of all matters related to its compliance with its
obligations hereunder ("Records"). Dow Xxxxx shall have the right itself, or
through its authorized representatives, upon at least ten (10) business days'
prior written notice, to inspect the Records during the other party's normal
business hours, but no more often than once during each calendar year. If any
such inspection reveals an underpayment of more than five percent (5%) related
to the time period under inspection, the reasonable costs and expenses to
conduct such inspection shall be paid by the underpaying party, and the
underpaying party shall pay the amount of such underpayment within thirty (30)
days. All information disclosed or obtained in the course of conducting any such
inspection shall be deemed Confidential Information of the party whose Records
are being inspected, and used solely for the purpose of verifying compliance
with the terms of this Agreement. If Dow Xxxxx elects to have an authorized
representative conduct its inspection of Records, the other party may require
such authorized representative to execute and deliver a confidentiality
agreement reasonably acceptable to the party whose Records are being inspected.
(d) U.S. Dollars. All amounts set forth herein are in U.S. Dollars and
------------
shall be paid in U.S. Dollars.
11. WARRANTIES.
----------
(a) By Dow Xxxxx. Dow Xxxxx hereby represents and warrants to Futurestep
------------
that:
(1) Dow Xxxxx has the authority required to enter into this Agreement
according to its terms, and that the execution, delivery, and performance of
this Agreement will not, with or without the giving of notice or the passage of
time, or both, violate any provision of law, rule or regulation to which Dow
Xxxxx is subject, or conflict with or result in a breach or default under any
agreement or other instrument to which Dow Xxxxx is a party or by which Dow
Xxxxx may be bound; and
(2) Dow Xxxxx has and will maintain during the Term all necessary
legal rights to grant the license to use the Dow Xxxxx Marks as set forth in
this Agreement.
(b) By Futurestep. Futurestep hereby represents and warrants to Dow Xxxxx
--------------
that:
18
(1) Futurestep has the authority required to enter into this
Agreement according to its terms, and that the execution, delivery, and
performance of this Agreement will not, with or without the giving of notice or
the passage of time, or both, violate any provision of law, rule or regulation
to which Futurestep is subject, or conflict with or result in a breach or
default under any agreement or other instrument to which Futurestep is a party
or by which Futurestep may be bound; and
(2) Futurestep is a corporation duly formed and in valid existence,
and will remain throughout the Term a corporation in good standing, under the
laws of the State of Delaware;
(3) Futurestep or KF has conducted an intellectual property search to
determine whether its use of the trade name and xxxx Futurestep is likely to
cause confusion or otherwise infringe on a third person's trademark, trade name,
trade dress, or other intellectual property rights; and
(4) to the best of Futuresteps's knowledge, its use of the trade name
and xxxx Futurestep does not, and will not during the Term, infringe upon the
trademark, trade name, trade dress, or other intellectual property rights of a
third person.
(c) By KF. KF hereby represents and warrants to Dow Xxxxx that:
-----
(1) KF has the authority required to enter into this Agreement
according to its terms, and that the execution, delivery, and performance of
this Agreement will not, with or without the giving of notice or the passage of
time, or both, violate any provision of law, rule or regulation to which KF is
subject, or conflict with or result in a breach or default under any agreement
or other instrument to which KF is a party or by which KF may be bound; and
(2) to the best of KF's knowledge and ability, Futurestep's use of
the trade name and xxxx Futurestep does not, and will not during the Term,
infringe upon the trademark, trade name, trade dress, or other intellectual
property rights of a third person.
(d) Disclaimer of Other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN
------------------------------
THIS SECTION 11, NO PARTY TO THIS AGREEMENT MAKES ANY OTHER REPRESENTATION OR
WARRANTY TO ANOTHER PARTY TO THIS AGREEMENT IN CONNECTION WITH THE SUBJECT
MATTER OF THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, NEITHER FUTURESTEP NOR KF HAS MADE OR WILL MAKE OR HAS AUTHORIZED
ANYONE ELSE TO MAKE ANY REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTIES,
EXPRESS OR IMPLIED, RELATING TO THE FUTURESTEP BUSINESS OR ITS PROSPECTS OR ANY
PROJECTIONS OR PLANS RELATING TO THE FUTURESTEP BUSINESS.
19
12. INDEMNIFICATION.
---------------
(a) By Futurestep and KF. Futurestep and KF, jointly and severally, shall
--------------------
indemnify and hold harmless Dow Xxxxx and its affiliates, and their respective
officers, directors, members, employees, and agents (collectively, the "Dow
Xxxxx Indemnified Persons"), against any and all judgments, damages,
liabilities, costs, expenses, and losses of any kind (including, but not limited
to, reasonable attorneys' and experts' fees) (collectively, "Losses") that arise
out of or relate to any claim, cause of action, demand or proceeding by a third
person (each, a "Claim") arising out of or related to or in connection with: (1)
the Futurestep Business (including, but not limited to, a Claim regarding
Response Management Services or by Referred Response Management Service Clients
or Registered Candidates); or (2) a breach or alleged breach by Futurestep or KF
of any representation or warranty or covenant set forth in this Agreement. Dow
Xxxxx must promptly notify Futurestep and KF in writing of any such Claim, but
the failure to do so shall not relieve Futurestep and KF of any obligation or
liability hereunder except to the extent Futurestep and KF have been materially
prejudiced therefrom. Futurestep or KF may elect, by written notice to Dow Xxxxx
within ten (10) days after receiving notice of such Claim, to assume the defense
thereof with counsel reasonably acceptable to Dow Xxxxx and/or the Dow Xxxxx
Indemnified Person(s). If Futurestep or KF does not so elect to assume such
defense, then Dow Xxxxx and/or the Dow Xxxxx Indemnified Person(s) shall retain
its own counsel to defend such Claim, at the expense of Futurestep and KF,
jointly and severally. If Futurestep or KF disputes its respective indemnity
obligation with respect to such Claim, or if Dow Xxxxx or the Dow Xxxxx
Indemnified Person(s) reasonably believes that there are conflicts of interest
between Futurestep and/or KF (on the one hand) and Dow Xxxxx and/or the Dow
Xxxxx Indemnified Person(s) (on the other hand), or that additional defenses are
available to Dow Xxxxx and/or the Dow Xxxxx Indemnified Person(s) with respect
to such defense, then Dow Xxxxx and/or the Dow Xxxxx Indemnified Person(s) may
retain its own counsel to defend such Claim, at its own expense (unless
ultimately determined that Futurestep or KF did have an indemnity obligation
with respect to such Claim). Futurestep and KF shall reimburse Dow Xxxxx and the
Dow Xxxxx Indemnified Person(s) for their respective costs and expenses incurred
under this Section 12(a) if and to the extent such costs and expenses constitute
Losses that arise out of or relate to a Claim for which they are entitled to be
indemnified by Futurestep or KF under this Section 12(a). Dow Xxxxx and the Dow
Xxxxx Indemnified Person(s) shall have the right, at their own respective
expense, to participate in the defense of any Claim against which it is
indemnified hereunder and for which Futurestep or KF has assumed the defense;
provided, however, that Dow Xxxxx and the Dow Xxxxx Indemnified Person(s) shall
-------- -------
have no right to control the defense, consent to judgment, or agree to settle
any such Claim without the prior written consent of the party that has assumed
the defense of such Claim, unless Dow Xxxxx or such Dow Xxxxx Indemnified
Person(s) waive their respective rights to indemnity hereunder. In defending
such Claim, Futurestep and KF shall not, without Dow Jones's prior written
consent, consent to entry of any judgment or enter into any settlement which:
(x) does not include, as an unconditional term, the grant by the claimant to Dow
Xxxxx and the Dow Xxxxx Indemnified Person(s) of a release of all liabilities in
respect of such Claim; or (y) otherwise adversely affects the rights of Dow
Xxxxx or the Dow Xxxxx Indemnified Person(s).
20
(b) By Dow Xxxxx. Dow Xxxxx shall indemnify and hold harmless Futurestep
------------
and KF and their respective affiliates, officers, directors, members, employees,
and agents (collectively, the "Futurestep Indemnified Persons"), against any and
all Losses that arise out of or relate to any Claim arising out of or related
to or in connection with a breach or alleged breach by Dow Xxxxx of any
representation or warranty or covenant set forth in this Agreement. Futurestep
and/or KF must promptly notify Dow Xxxxx in writing of any such Claim, but the
failure to do so shall not relieve Dow Xxxxx of any obligation or liability
hereunder except to the extent Dow Xxxxx has been materially prejudiced
therefrom. Dow Xxxxx may elect, by written notice to Futurestep and KF within
ten (10) days after receiving notice of such Claim, to assume the defense
thereof with counsel reasonably acceptable to Futurestep (if the subject of the
Claim) and/or KF (if the subject of the Claim), and/or the Futurestep
Indemnified Person(s). If Dow Xxxxx does not so elect to assume such defense,
then Futurestep (if the subject of the Claim) and/or KF (if the subject of the
Claim) or the Futurestep Indemnified Person(s) shall retain its own counsel to
defend such Claim, at Dow Jones's expense. If Dow Xxxxx disputes its indemnity
obligation with respect to such Claim, or if Futurestep (if the subject of the
Claim) and/or KF (if the subject of the Claim) or the Futurestep Indemnified
Person(s) reasonably believes that there are conflicts of interest between Dow
Xxxxx (on the one hand) and Futurestep and/or KF and/or the Futurestep
Indemnified Person(s) (on the other hand), or that additional defenses are
available to Futurestep (if the subject of the Claim) and/or KF (if the subject
of the Claim) or the Futurestep Indemnified Person(s) with respect to such
defense, then Futurestep (if the subject of the Claim) and/or KF (if the
subject of the Claim) and the Futurestep Indemnified Person(s) may retain its
own counsel to defend such Claim, at its own expense (unless ultimately
determined that Dow Xxxxx did have an indemnity obligation with respect to such
Claim). Dow Xxxxx shall reimburse Futurestep (if the subject of the Claim)
and/or KF (if the subject of the Claim) and the Futurestep Indemnified Person(s)
for their respective costs and expenses incurred under this Section 12(b) if and
to the extent such costs and expenses constitute Losses that arise out of or
relate to a Claim for which they are entitled to be indemnified by Dow Xxxxx
under this Section 12(b). Futurestep (if the subject of the Claim) and/or KF (if
the subject of the Claim) and the Futurestep Indemnified Person(s) shall have
the right, at their own respective expense, to participate in the defense of any
Claim against which it is indemnified hereunder and for which Dow Xxxxx has
assumed the defense; provided, however, that Futurestep (if the subject of the
-------- -------
Claim) and/or KF (if the subject of the Claim) and the Futurestep Indemnified
Person(s) shall have no right to control the defense, consent to judgment, or
agree to settle any such Claim without the prior written consent of Dow Xxxxx,
unless Futurestep (if the subject of the Claim) and/or KF (if the subject of the
Claim) and the Futurestep Indemnified Person(s) waive their respective rights to
indemnity hereunder. In defending such Claim, Dow Xxxxx shall not, without the
prior written consent of Futurestep (if the subject of the Claim) and/or KF (if
the subject of the Claim), consent to entry of any judgment or enter into any
settlement which: (x) does not include, as an unconditional term, the grant by
the claimant to Futurestep (if the subject of the Claim) and/or KF (if the
subject of the Claim) and the Futurestep Indemnified Person(s) of a release of
all liabilities in respect of such Claim; or (y) otherwise adversely affects the
rights of Futurestep (if the subject of the Claim) and/or KF (if the subject of
the Claim) and the Futurestep Indemnified Person(s).
21
(c) No Third Party Beneficiaries. The terms set forth in Section 12 are
----------------------------
solely for the benefit of Dow Xxxxx, Futurestep, and KF, and are not intended
to, and do not, create any rights or causes of actions on behalf of any third
person, or any intended or implied third party beneficiaries.
13. CONFIDENTIAL INFORMATION.
------------------------
(a) General Obligations. The parties understand and agree that in the
-------------------
performance of this Agreement each party may have access to private or
confidential information of the other party, including, but not limited to,
trade secrets, marketing and business plans, technical information, customer
identities, candidates identities, projections, customer lists, lists of
advertisers, and product and service pricing, which is designated as
confidential by the disclosing party in writing or which the receiving party
knew or should have known was confidential (collectively, "Confidential
Information"). Both parties agree that the terms of this Agreement, including
without limitation its financial terms, shall be deemed Confidential Information
owned by the other party. Each party agrees that: (a) all Confidential
Information shall remain the exclusive property of the owner; (b) it shall
maintain, and shall use prudent methods to cause its employees and agents to
maintain, the confidentiality and secrecy of the Confidential Information; (c)
it shall not, and shall use prudent methods to ensure that its employees and
agents do not, copy, publish, disclose to others or use (other than pursuant to
the terms hereof) the Confidential Information; and (d) it shall return or
destroy all copies of Confidential Information upon request of the other party.
Notwithstanding the foregoing, Confidential Information shall not include any
information to the extent it (i) is or becomes a part of the public domain
through no act or omission on the part of the receiving party, (ii) is disclosed
to a third person by the disclosing party without restriction on such third
person, (iii) is in the receiving party's possession, without actual or
constructive knowledge of an obligation of confidentiality with respect thereto,
at or prior to the time of disclosure under or in connection with this
Agreement, whether received prior to or after the date of this Agreement, (iv)
is disclosed to the receiving party by a third person having no obligation of
confidentiality with respect thereto, (v) is independently developed by the
receiving party without reference to the disclosing party's Confidential
Information, (vi) is released from confidential treatment by written consent of
the disclosing party, or (vii) is required to be disclosed by law, provided the
receiving party gives sufficient notice to the disclosing party in advance of
such disclosure to enable the disclosing party to seek legal recourse to prevent
such disclosure.
(b) Customer Identities. The fact than an individual subscribes to or uses
-------------------
WSJIE or xxxxxxx.xxx.xxx or WSJ or NBEW or any other Dow Xxxxx publication or
service, or that a company has purchased an advertisement that has not yet been
published in a Dow Xxxxx publication or service, shall be deemed Dow Jones's
Confidential Information. The fact that an individual or company uses any of
Futurestep's or KF's products or services, or uses any of Futurestep's or KF's
business products or services, shall be deemed Futurestep's or KF's, as
applicable, Confidential Information.
14. INSURANCE. Futurestep, at its own expense, shall procure and maintain
---------
during the Term policies of insurance customary for employment search companies
and companies doing
22
business using the Internet, which shall include at a minimum Errors and
Omissions Liability insurance with a combined single limit of not less than
$10,000,000 per occurrence. Dow Xxxxx shall be named as an additional insured on
all such policies of insurance.
15. TERMINATION AND EFFECT OF TERMINATION.
-------------------------------------
(a) Uncured Breach. (1) If Futurestep or KF shall breach any material
--------------
provision contained in this Agreement, and such breach is not cured within
thirty (30) days after receiving written notice of such breach from Dow Xxxxx,
then Dow Xxxxx may deliver a second written notice to Futurestep and KF
terminating this Agreement, in which event this Agreement, and the license and
rights granted hereunder, shall terminate on the date specified in such second
notice.
(2) If Dow Xxxxx shall breach any material provision contained in this
Agreement, and such breach is not cured within thirty (30) days after receiving
written notice of such breach from Futurestep or KF, then Futurestep or KF (as
the case may be) may deliver a second written notice to Dow Xxxxx terminating
this Agreement, in which event this Agreement, and the license and rights
granted hereunder, shall terminate on the date specified in such second notice.
(3) Each party shall inform the other parties of breaches of
immaterial provisions of which such party becomes aware, but a breach of an
immaterial provision shall not give rise to a right to terminate the Agreement.
(b) Series of Cured Breaches of Material Term. (1) If Futurestep or KF
-----------------------------------------
shall materially breach a term in Sections 3(d)(1), 3(d)(3), 3(d)(6), 3(h),
4(d), 4(e)(1), 5(d), 6(g), 9(c), 9(d), 9(e), 9(f), or 10(a) three (3) or more
times during a six (6) month period, regardless of whether each breach of such
provision was cured within the time period specified in this Agreement, then Dow
Xxxxx may deliver written notice to the parties terminating this Agreement, in
which event this Agreement, and the license and rights granted hereunder, shall
terminate on the date specified in such second notice.
(2) If Dow Xxxxx shall materially breach a term in Sections 5(b),
6(g), 9(a) or 9(b) three (3) or more times, regardless of whether each breach of
such provision was cured within the time period specified in this Agreement,
then Futurestep or KF may deliver written notice to the parties terminating this
Agreement, in which event this Agreement, and the license and rights granted
hereunder, shall terminate on the date specified in such second notice.
(c) Change in Control. If there is a direct or indirect change in the
-----------------
effective control of Futurestep or KF, or if Futurestep or XX xxxxxx into or is
acquired by any person (other than a merger of Futurestep into or with KF), or
if Futurestep or XX xxxxx or transfers the Futurestep Business or all or
substantially all of the assets of the Futurestep Business (other than a sale by
Futurestep to KF) (each, a "Futurestep Change in Control"), then Futurestep or
KF (as the case may be) shall give prompt written notice thereof to Dow Xxxxx,
and Dow Xxxxx at its option may, within thirty (30) days after receipt of such
written notice, terminate this Agreement, and the licenses and rights hereunder,
immediately, by delivering written notice to Futurestep
23
and KF. Notwithstanding anything contained herein to the contrary: (1) the
consummation of an initial public offering of its debt or equity securities by
Futurestep or KF or the issuance from time to time thereafter of debt or equity
securities pursuant to an effective registration statement filed with the
Securities and Exchange Commission shall not be deemed a Futurestep Change in
Control within the meaning of this Section 15(c), regardless of the number or
identity of the purchasers of such securities or the concentration of the debt
and equity securities of Futurestep or KF thereafter; and (2) the issuance of
equity and/or debt securities by Futurestep and/or KF in transactions not
involving public offerings or distributions shall not constitute a Futurestep
Change of Control within the meaning of this Section 15(c) so long as such
issuances do not result in a change in the effective control of Futurestep or
KF.
(d) Insolvency. In the event that any party shall be adjudged insolvent or
----------
bankrupt, or upon the institution of any proceedings by it seeking relief,
reorganization or arrangement under any laws relating to insolvency, or if an
involuntary petition in bankruptcy is filed against such party and said petition
is not discharged within thirty (30) days after such filing, or upon any
assignment for the benefit of its creditors, or upon the appointment of a
receiver, liquidator or trustee of any of its assets, or upon the liquidation,
dissolution or winding up of its business (an "Event of Bankruptcy"), then the
party affected by any such Event of Bankruptcy shall immediately give notice
thereof to the other parties, and either of the other parties at its option may
terminate this Agreement, and the licenses and rights granted hereunder, upon
written notice.
(e) The Wall Street Journal. Any party to this Agreement may terminate the
-----------------------
Agreement, and the licenses and rights granted hereunder, by delivering written
notice of termination to all other parties to the Agreement, if Dow Xxxxx ceases
publication of the print edition of The Wall Street Journal for general
circulation within the United States, or if Dow Xxxxx ceases to own fifty
percent (50%) or greater interest in The Wall Street Journal. Nothing in this
Agreement is intended to, or shall be interpreted or construed to, restrict Dow
Jones's ability to cease publication of, or alter the format, content,
circulation or distribution of, any of its publications, products or services.
(f) Termination of the Futurestep Business Within One Year After Effective
----------------------------------------------------------------------
Date. Any party to this Agreement may terminate the Agreement, and the licenses
----
and rights granted hereunder, by delivering written notice of termination to all
other parties to the Agreement, if, at any time prior to the end of the first
year of the Initial Term: (1) there has been no "National Launch" (as defined
below) of the Futurestep Business; (2) Futurestep substantially ceases operation
of the Futurestep Business; or (3) Futurestep ceases providing services
substantially similar to the services set forth on Exhibit A.
For purposes of this Section 15(f), a "National Launch" of the Futurestep
Business shall have occurred when Futurestep or KF have placed a Business Ad for
the Futurestep Business, on one or more occasions, in three (3) or more U.S.
editions of the print WSJ; provided, however, that a Business Ad for the
-------- -------
Futurestep Business shall not include an ad announcing the association of
Futurestep and Dow Xxxxx and xxxxxxx.xxx.xxx.
24
(g) Termination After End of First Year but During First Three Years.
----------------------------------------------------------------
Futurestep may terminate this Agreement, and the licenses and rights granted
hereunder, for any or no reason, by delivering written notice of termination to
all other parties to the Agreement, at any time after the end of the first year
of the Initial Term, but prior to the end of the third year of the Initial Term.
(h) Effect of Termination on Payment Obligations.
--------------------------------------------
(1) Failure to Launch Nationally Within First Year. Upon the
----------------------------------------------
termination of this Agreement pursuant to Section 15(f), Futurestep and KF
shall, jointly and severally, and in addition to complying with the terms in
Section 15(i), pay Dow Xxxxx the remainder of the First Year Minimum Payment,
plus the remainder of the Monthly Tile Position Ad Fees that otherwise would
have been due to Dow Xxxxx had the Agreement continued until the end of the
first year of the Initial Term (together, the "First Year Termination Payment").
Futurestep and KF shall jointly and severally pay the First Year Termination
Payment within thirty (30) days after the termination of this Agreement pursuant
to Section 15(f). Receipt of the First Year Termination Payment shall be Dow
Jones's sole and exclusive remedy for any claim related to the termination of
this Agreement pursuant to Section 15(f). During the twelve (12) month period
after Dow Xxxxx receives the First Year Termination Payment, KF shall be
entitled to place Business Ads for KF in the WSJ and NBEW at the rates set forth
in Exhibit B and in xxxxxxx.xxx.xxx at the rates set forth in Section 5(c), and
apply the First Year Termination Payment to such costs, provided that the amount
spent for ads in xxxxxxx.xxx.xxx does not exceed approximately 10% of the First
Year Termination Payment.
(2) Termination During Second or Third Year. Upon the termination of
---------------------------------------
this Agreement pursuant to Section 15(g), Futurestep and KF shall, jointly and
severally, and in addition to complying with the terms in Section 15(i), pay Dow
Xxxxx:
(a) the remainder of the Annual Minimum Payment, plus the
remainder of the Monthly Tile Position Ad Fees, that otherwise would have been
due to Dow Xxxxx for the balance of the twelve-month period in which such
termination occurred had the Agreement not been terminated pursuant to Section
15(g), plus an additional One Million Dollars ($1,000,000) (the "Remainder
Payment"); and
(b) a cash payment of One Million Five Hundred Thousand Dollars
($1,500,000) (the "Exit Payment").
Futurestep and KF shall jointly and severally pay the Remainder Payment and the
Exit Payment within thirty (30) days after the termination of this Agreement
pursuant to Section 15(g). If the Agreement is terminated pursuant to Section
15(g), receipt of the Remainder Payment and Exit Payment shall be Dow Jones's
sole and exclusive remedy for any claim related to the termination of this
Agreement pursuant to Section 15(g). If the Agreement is terminated pursuant to
Section 15(g), during the twelve (12) month period after Dow Xxxxx receives the
Remainder Payment and the Exit Payment, KF shall be entitled to place Business
Ads for KF in the WSJ, NBEW and xxxxxxx.xxx.xxx, at the then-applicable rate
card rates, and apply the
25
Remainder Payment (but not the Exit Payment) to such costs, provided that the
amount spent for ads in xxxxxxx.xxx.xxx does not exceed approximately 10% of the
Remainder Payment.
(3) Other Termination Reasons During First Three Years. If Dow Xxxxx
--------------------------------------------------
terminates this Agreement prior to three (3) years after the Effective Date,
pursuant to Section 15(a)(1), 15(b)(1), 15(c), or 15(d), Futurestep and KF
shall, jointly and severally, and in addition to complying with the terms in
Section 15(i), pay Dow Xxxxx:
(a) the remainder of the Annual Minimum Payment, plus the
remainder of the Monthly Tile Position Ad Fees, that otherwise would have been
due to Dow Xxxxx for the balance of the twelve-month period in which such
termination occurred had the Agreement not been terminated pursuant to Section
15(a)(1), 15(b)(1), 15(c), or 15(d), plus an additional One Million Dollars
($1,000,000) (the "Remainder Payment"); and
(b) the Exit Payment.
Futurestep and KF shall jointly and severally pay the Remainder Payment and the
Exit Payment within thirty (30) days after the termination of this Agreement
pursuant to Section 15(a)(1), 15(b)(1), 15(c), or 15(d). Dow Xxxxx shall be
entitled to receive payment of the Remainder Payment and the Exit Payment in
addition to its other rights and remedies, at law or in equity, in connection
with a termination of this Agreement pursuant to Section 15(a)(1), 15(b)(1),
15(c), or 15(d). If the Agreement is terminated pursuant to Section 15(a)(1),
15(b)(1), 15(c), or 15(d), during the twelve (12) month period after Dow Xxxxx
receives the Remainder Payment and the Exit Payment, KF shall be entitled to
place Business Ads for KF in the WSJ, NBEW and xxxxxxx.xxx.xxx, at the
then-applicable rate card rates, and apply the Remainder Payment (but not the
Exit Payment) to such costs, provided that the amount spent for ads in
xxxxxxx.xxx.xxx does not exceed approximately 10% of the Remainder Payment.
The Exit Payment shall be applied as a credit against any court judgment,
arbitration award, or similar monetary award obtained by Dow Xxxxx in connection
with a termination of this Agreement by Dow Xxxxx pursuant to Section 15(a)(1),
15(b)(1), 15(c), or 15(d).
(4) Termination During a Renewal Term. If Dow Xxxxx terminates this
---------------------------------
Agreement during a Renewal Term, pursuant to Section 15(a)(1), 15(b)(1), 15(c),
or 15(d), Futurestep and KF shall, jointly and severally, and in addition to
complying with the terms in Section 15(i), pay Dow Xxxxx the remainder of the
Annual Minimum Payment, plus the remainder of the Monthly Tile Position Ad Fees,
that otherwise would have been due to Dow Xxxxx for the balance of the
twelve-month period in which such termination occurred had the Agreement not
been terminated pursuant to Section 15(a)(1), 15(b)(1), 15(c), or 15(d) (the
"Remainder Payment").
Neither Futurestep nor KF would owe Dow Xxxxx an Exit Payment. Futurestep and KF
shall jointly and severally pay the Remainder Payment within thirty (30) days
after the termination of this Agreement pursuant to Section 15(a)(1), 15(b)(1),
15(c), or 15(d). Dow Xxxxx shall be entitled to receive payment of the Remainder
Payment in addition to its other rights and
26
remedies, at law or in equity, in connection with a termination of this
Agreement pursuant to Section 15(a)(1), 15(b)(1), 15(c), or 15(d). If the
Agreement is terminated pursuant to Section 15(a)(1), 15(b)(1), 15(c), or 15(d),
during the twelve (12) month period after Dow Xxxxx receives the Remainder
Payment, KF shall be entitled to place Business Ads for KF in the WSJ, NBEW and
xxxxxxx.xxx.xxx, at the then-applicable rate card rates, and apply the Remainder
Payment to such costs, provided that the amount spent for ads in xxxxxxx.xxx.xxx
does not exceed approximately 10% of the Remainder Payment.
(i) Effect of Termination on Other Obligations. Upon the expiration or
------------------------------------------
termination of this Agreement for any reason, the license and rights regarding
the Dow Xxxxx Marks shall terminate immediately, and Futurestep shall
immediately stop all use of the Dow Xxxxx Marks. Notwithstanding the foregoing
sentence, Futurestep may continue to use the Dow Xxxxx Marks solely in
connection with Materials that cannot be cancelled or altered because of
printing or production deadlines (e.g., ads already scheduled to run in the WSJ
or NBEW). In addition, upon expiration or termination of this Agreement for any
reason, each party, at its expense, shall either destroy or return to the other
party within (5) days all copies of another party's Confidential Information.
(j) Nonsolicitation. During the term of this Agreement and for one year
---------------
after the expiration or termination of this Agreement for any reason:
(1) Without Futurestep's or KF's (as the case may be) prior consent,
Dow Xxxxx will not solicit for employment or employ any Futurestep or KF
employee who Dow Xxxxx knew or should have known worked in a material capacity
with the performance of Futurestep's or KF's obligations pursuant to this
Agreement; and
(2) Without Dow Jones's prior consent, neither Futurestep nor KF
will solicit for employment or employ any Dow Xxxxx employee who Futurestep of
KF (as the case may be) knew or should have known worked in a material capacity
in connection with the performance of Dow Jones's obligations pursuant to this
Agreement.
For purposes of this Section of the Agreement, "worked in a material capacity"
shall not include secretaries and other administrative personnel, attorneys, and
accountants, among other individuals, but shall include advertising sales
personnel and executives, among other individuals. For purposes of this Section
of the Agreement, placing advertisements soliciting employees, which ads are not
targeted specifically to the employees of another party hereto, shall not
constitute solicitation for employment. As a party's sole and exclusive remedy
for any breach of any term of this Section of the Agreement, the nonbreaching
party shall be entitled to receive a payment from the breaching party equal to
*. The parties agree that the sole and exclusive remedy and amount of damages
set forth in the preceding sentence is reasonable in light of the anticipated or
actual harm cause by the breach, the difficulties of proof of loss, and the
inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.
* Confidential portions omitted and filed separately with the Commission.
27
16. MISCELLANEOUS TERMS.
-------------------
(a) Business Responsibilities. Except as specifically set forth otherwise
-------------------------
in this Agreement, Futurestep shall be responsible for all aspects of the
Futurestep Business, including, without limitation: operation of the Futurestep
Business; accounts payable and accounts receivable; taxes; employment issues for
individuals performing work for the Futurestep Business; and insuring the
Futurestep Business.
(b) Severability. If any term or other provision of this Agreement is held
------------
to be invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon a determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(c) Assignment; Amendment. Except for a transfer or assignment of this
---------------------
Agreement in connection with a merger of Futurestep into or with KF, an
acquisition by KF of Futurestep, the Futurestep Business or all or substantially
all of the assets of Futurestep, neither this Agreement, the license granted
herein, nor any of the rights or obligations hereunder, shall be assigned or
transferred, whether by operation of law or otherwise, without the prior written
consent of all other parties hereto. Any purported assignment or transfer in
violation of the first sentence of this Section 16(c) shall be void. This
Agreement and all of its rights and obligations shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may be amended only by a written instrument
executed by the party or parties to be bound thereby.
(d) Specific Performance. The parties hereto acknowledge and agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, and other equitable
relief, in addition to any other remedy at law or in equity, except for those
terms where a sole and exclusive remedy is expressly set forth herein.
(e) Notices. All notices, consents, approvals, requests, claims, demands
-------
and other communications hereunder (collectively, "Notices") shall be in writing
and shall be given (and shall be deemed to have been duly given upon receipt)
by delivery in person, by telecopy, by reliable overnight courier service, or
by registered or certified mail (postage prepaid, return receipt requested) to
the respective Relationship Manager(s) at the addresses on the signature page of
this Agreement (or at such other address for a party as shall be specified in a
Notice given in accordance with this Section).
(f) Governing Law. This Agreement, the license, and all rights and
-------------
obligations hereunder, shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts executed in and to be
performed wholly in New York, without
28
regard to any principles of conflict of law. It is the intent of the parties
that the substantive law of the State of New York govern this Agreement.
(g) Counterparts. This Agreement may be executed and delivered (including
------------
by facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which when taken together
shall constitute one and the same agreement.
(h) Survival. (1) The terms in the following Sections of this Agreement
--------
shall survive its expiration or termination for any reason: Sections 3(f), 7(c),
8(c), 8(d), 9(a), 9(f), 10(b), 10(c), 11(d), 15(h), 15(i), 15(j), and all of
Sections 1, 12, 13, and 16. (2) All causes of action for breach of the terms in
the following Sections of this Agreement shall survive its expiration or
termination for any reason for the applicable statute of limitations: Sections
3(f), 7(c), 8(c), 8(d), 9(a), 9(f), 10(b), 10(c), 11(d), 15(h), 15(i), 15(j),
and all of Sections 1, 12, 13, and 16.
(i) Waiver. Failure or delay by any party to enforce compliance with any
------
term or condition of this Agreement shall not constitute a waiver of such term
or condition. All waivers hereunder must be in writing and executed by an
authorized representative on behalf of the party against whom such waiver is
asserted. A waiver of a breach or a term under this Agreement shall not be
deemed a waiver or any other or subsequent breach, or a waiver of any other
term.
(j) Headings. Section headings are for the convenience of the parties and
--------
shall not affect the meaning, construction or interpretation of the text of this
Agreement.
(k) Relationship Managers. Each party shall designate one individual as
---------------------
that party's Relationship Manager, with the authority to make decisions and
legally bind such party regarding the matters set forth in this Agreement. The
Relationship Managers shall be the first and principal contact for each party
for matters arising in connection with this Agreement, unless a Relationship
Manager has designated another individual at its employer to serve as the first
and principal contact for a particular matter (e.g., one individual for issues
regarding print WSJ ads, and a different individual for issues regarding
xxxxxxx.xxx.xxx ads).
(l) Costs and Expenses. If any party brings an action against another
------------------
party to enforce rights under this Agreement, the prevailing party shall be
entitled to recover its reasonable costs and expenses incurred in connection
with such action and all appeals of such action, including, without limitation,
reasonable attorneys' fees and costs.
(m) Text References to Material Breaches. A statement in this Agreement
------------------------------------
that a breach of a particular term shall be deemed a material breach of this
Agreement does not mean or imply that a breach of any other particular term does
not constitute a material breach of this Agreement.
(n) KF Selection. Unless expressly set forth otherwise in this Agreement,
------------
references to "KF" include, without limitation, its KF Selection division or
business.
29
(o) Mutual Amendment of Business Definitions. The parties anticipate that,
----------------------------------------
during the Term, the categories of business conducted by the Futurestep
Business, KF Business, xxxxxxx.xxx.xxx web site Business, and Dow Xxxxx Business
will change. In part to enable parties to determine what activities might
compete with another party's business in ways restricted by this Agreement, each
party will need to inform the other parties regarding bona fide changes to their
respective businesses. Therefore, upon the occurrence of a bona fide change to
the actual operation of the Futurestep Business, KF Business, xxxxxxx.xxx.xxx
web site Business, or the Dow Xxxxx Business, the applicable party to this
Agreement owning such business may propose an amendment to the applicable
respective definition of such business, and such proposed amendment shall be
adopted if mutually agreed upon by the other parties to this Agreement, which
agreement shall not be unreasonably withheld or delayed.
(p) Integration. This Agreement (including, without limitation, the
-----------
Exhibits attached hereto, which are expressly incorporated into this Agreement
by this reference) is the final and entire agreement of the parties on the
subject matter herein, and supersedes all previous oral and written
understandings, negotiations, letters, writings, and agreements on the subject
matter herein.
30
IN WITNESS WHEREOF, Dow Xxxxx, Futurestep, and KF have caused each of its
respective authorized representatives to execute this Agreement, as of the
Effective Date.
DOW XXXXX FUTURESTEP
DOW XXXXX & COMPANY, INC. KORN/FERRY INTERNATIONAL FUTURESTEP, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Man Xxx Xxxxx
-------------------------- -------------------------
Print Name: Xxxxxxx X. Xxxxxx Print Name: Man Xxx Xxxxx
Title: Director of The Wall Street Title: President & CEO
Journal Classified Advertising
XX
XXXX/FERRY INTERNATIONAL
By: /s/ Xxxxx X. Xxxx
-------------------------
Print Name: Xxxxx X. Xxxx
Title: Vice Chairman
Initial Addresses for Notices:
DOW XXXXX & COMPANY, INC. KORN/FERRY INTERNATIONAL FUTURESTEP, INC.
Mr. Xxxxxxx Xxxxxx Korn/Ferry International Futurestep Inc.
Director of Wall Street Journal 00000 Xxxxxxx Xxxx., Xxxxx 000
Classified Advertising Xxxxxxx Xxxx, XX 00000
Dow Xxxxx & Company, Inc. Attn.: Mr. Man Xxx Xxxxx, President
1155 Avenue of the Americas Phone: 000-000-0000
Xxx Xxxx, XX 00000 Fax: 000-000-0000
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to: KORN/FERRY INTERNATIONAL
Xxxxxx X. Xxxxxxxxx, Esq. 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Dow Xxxxx & Company, Inc. Los Angeles, CA 90067
U.S. Highway One at Ridge Road Attn.: Mr. Xxxxx Xxxx, Vice Chairman
Xxxxxxxxx, XX 00000 Phone: 000-000-0000
Phone: 000-000-0000 Fax: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
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