EXHIBIT 10.18
AMENDMENT NO. 2 TO ANCHOR TENANT AGREEMENT
This Second Amendment ("Second Amendment") effective as of July ___, 2000
(the "Second Amendment Effective Date"), is entered into by and between America
Online, Inc. ("AOL"), a Delaware corporation, with its principal offices at
00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000 and Salon Internet, Inc.("Interactive
Content Provider" or "ICP"), a California corporation with its principal offices
at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (each, a
"Party" and, collectively, the "Parties").
INTRODUCTION
ICP and AOL are Parties to the Anchor Tenant Agreement effective as of
August 1, 1998 as amended on August 1, 1999 and extended by letter dated
November 10, 1999, December 2, 1999 and December 17, 1999 (the "Original
Agreement"). Capitalized terms used in this Second Amendment without definition
are as defined in the Original Agreement.
Recitals
WHEREAS, AOL and ICP have agreed to renew and amend the Original Agreement;
NOW, THEREFORE, in consideration of the terms and conditions set forth in
this Amendment and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, AOL and ICP hereby agree to renew
and amend the Original Agreement in accordance with the following terms and
conditions:
Terms
1. Amendments. The Original Agreement is hereby amended as follows:
Section 1.1 Anchor Tenancy shall be deleted in its entirety and amended to read
as follows:
Beginning upon a mutually agreed date(s) after the Second Amendment Effective
Date, AOL shall provide ICP with the placements set forth on Exhibit A-1. The
placements described on Exhibit A-1 and any other promotions or placements
provided by AOL to ICP shall be referred to as the "Placements." Except to the
extent expressly described herein, the exact form, location and nature of the
Placements shall be determined by AOL in its reasonable editorial discretion.
The Placements shall link to the ICP Internet Site as provided on Exhibit A-1
or as determined by AOL in its reasonable editorial discretion.
Section 1.2 Content shall be amended by deleting all references to Exhibit A and
replacing those references with Exhibit A-2.
Section 1.4 Management shall be renumbered as sub-section 1.4.1 ICP Management
Responsibilities; Registration.
Article 1 shall be amended to include the following sub-section 1.4.2
Compliance:
In the event ICP fails to comply with any material term of this Agreement,
including without limitation ICP's obligations under this Section 1.4, its
promotional obligations under Section 2, the customization and integrity
requirements of Section 5, or its obligations to provide the Content set forth
on the Programming Plan, AOL will have the right (in addition to any other
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remedies available to AOL hereunder) to decrease the promotion it provides to
ICP hereunder and/or to decrease or cease any other contractual obligation of
AOL hereunder until such time as ICP corrects its non-compliance, in which event
AOL will be relieved of the proportionate amount of any promotional commitment
made to ICP by AOL hereunder corresponding to such decrease in promotion.
Section 1.5 Carriage Fee and sub-sections 1.5.1 and 1.5.2, shall be deleted in
their entirety and amended to read as follows:
ICP shall pay AOL $1,000,000 as follows: $375,000 on the Second Amendment
Effective Date; and quarterly payments of $125,000 due on or before the dates
which are three (3) months, six (6) months, nine (9) months, twelve (12) months,
and fifteen (15) months respectively, after the Second Amendment Effective Date.
The first sentence of Section 1.6 Impressions Guarantee shall be deleted in its
entirety and amended to read as follows:
AOL shall provide ICP with at least 46,00,000 Impressions (as defined below)
from ICP's presence on the AOL Network (the "Impressions Guarantee") for the
period beginning on the Second Amendment Effective Date through the end of the
Renewal Term, (as defined in Section 6.1 below).
Section 6.1 Term shall be deleted in its entirety and amended to read as
follows:
Unless earlier terminated as set forth herein, the renewal term of this
Agreement shall be two (2) years from the Second Amendment Effective Date (the
"Renewal Term"). Thereafter, AOL shall have the right to extend this Agreement
for two (2) successive one (1) year periods (each, an "Extension Term"). Each
such Extension Term shall be on the same terms and conditions contained herein,
and ICP shall make payments during each Extension Term in the amounts provided
for under Section 1.5. AOL shall exercise its option to extend this Agreement
by providing ICP with written notice of such election no later than sixty (60)
days prior to the expiration of the Renewal Term or the then-current Extension
Term, as the case may be. Upon the expiration or earlier termination of this
Agreement, AOL may, at its discretion, continue to promote one or more
"pointers" or links from the AOL Network to an ICP Interactive Site and continue
to use ICP's trade names, trade marks and service marks in connection therewith
(collectively, a "Continued Link").
Exhibit A shall be deleted in its entirety and replaced with Exhibit A-1,
Placements and Exhibit A-2, Programming and Content. Copies of Exhibits A-1 and
A-2 are attached hereto and incorporated herein by reference.
Exhibit B - Definitions shall be amended to include the following definition:
XXX.xxx. AOL's primary Internet-based Interactive Site marketed under the
"XXX.XXX(SM)" brand, specifically excluding (a) the AOL Service, (b) any
international versions of such site, (c) XxxxxXxxxx.xxx, Netscape Netcenter, any
other CompuServe or Netscape products or services or interactive sites, (d)
"ICQ(SM)," "AOL Search," "AOL Instant Messenger(SM)," "AOL NetMail(SM)" or any
similar independent product or service offered by or through such site or any
other AOL Interactive Site, (e) any programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation,
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Content areas controlled by other parties and member-created Content areas), (f)
any programming or Content area offered by or through the U.S. version of the
America Online brand service which was operated, maintained or controlled by the
former AOL Studios division, (g) any yellow pages, white pages, classifieds or
other search, directory or review services or Content offered by or through such
site or any other AOL Interactive Site, (h) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective Date
and (i) any other version of an America Online Interactive Site which is
materially different from AOL's primary Internet-based Interactive Site marketed
under the "XXX.XXX" brand, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any co-
branded versions and any version distributed through any broadband distribution
platform or through any platform or device other than a desktop personal
computer.
Change of Control. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a Party or (b) the acquisition by any individual, entity or group (within the
meaning of Section 13 (d)(3) or 14 (d)(2) of the Securities Exchange Act of
1934, as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such Party; or (ii) the combined voting power of the
then outstanding voting securities of such Party entitled to vote generally in
the election of directors.
Exhibit C, Standard Legal Terms and Conditions, Section I, AOL Network shall be
amended to include the following paragraphs:
Kids and Teens Policies. At all times, ICP shall comply with AOL's then-
standard policies regarding "child-designated content." As used herein, "child-
designated content" means Content that is designed for: (i) Kids (children 12
and under); (ii) Young Teens (children ages 13-15); (iii) Mature Teens (children
aged 16-17); and (iv) any combination of Kids, Young Teens, and Mature Teens.
ICP shall ensure that all child- designated content (including all advertising
in child-designated content areas) distributed on or through the ICP complies
with any relevant written AOL policy (Kids, Young Teens, Mature Teens) that is
provided in writing to ICP, including any obligations that such child-designated
content be marked or tagged so that it may operate properly in connection with
viewing restriction functionality provided to AOL Members. Without limiting the
generality of the foregoing or any other provision of this Agreement, ICP shall
notify AOL in writing whenever it intends to distribute child- designated
content for these age groups on or through the ICP Internet Site to ensure
proper age restriction categorization.
Insurance. At all times during the Term, ICP shall maintain an insurance policy
or policies reasonably satisfactory to AOL and adequate in amount to insure ICP
against all liability associated with the Licensed Content. ICP shall include
AOL as a named insured party on such policy or policies. ICP shall provide AOL
with a copy of such policy or policies within thirty (30) days after the Second
Amendment Effective Date, failing which, in addition to other available
remedies, AOL shall be entitled to delay the launch of the Licensed Content on
the AOL Network (and reduce AOL's promotional and Impressions obligations
proportionately). ICP shall promptly notify AOL of any material change in such
policy or policies.
Exhibit C, Standard Legal Terms and Conditions, Section VIII, Miscellaneous,
Survival shall be amended to provide that Section VIII will also survive the
completion, expiration, termination or cancellation of this Agreement.
Exhibit C, Standard Legal Terms and Conditions, Section VIII, Miscellaneous,
Assignment shall be deleted in its entirety and amended to read as follows:
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Assignment. ICP shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL.
Assumption of this Agreement by any successor to ICP (including, without
limitation, by way of merger or consolidation) shall be subject to AOL's prior
written approval. In the event of (i) any Change of Control of ICP, or any
assignment or assumption of this Agreement, without AOL's prior written consent
or (ii) any Change of Control of AOL, AOL shall have the right to terminate this
Agreement upon written notice to ICP. Subject to the foregoing, this Agreement
shall be fully binding upon, inure to the benefit of and be enforceable by the
Parties hereto and their respective successors and assigns.
2. General. This Amendment and the Original Agreement are the entire agreement
between the parties regarding the subject matter contained herein. This
Amendment governs in the event of any inconsistency or conflict between the
terms of this Amendment and the Original Agreement. Terms not defined herein
shall have the meaning given to them in the Original Agreement. Except for the
specific changes noted in this Amendment, the terms of the Original Agreement
shall remain in full force and effect. This Amendment may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document.
Agreed to by ICP: Accepted by AOL
---------------- ---------------
By:_____________________ By:_____________________
Title:_____________________ Title:_____________________
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EXHIBIT A-1
PLACEMENTS
Channel Screen Promotion/integration
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News Main Rotating Text Promo
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News Speak Out Rotating Text Promo
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News Pundits Speak Out Rotating Text Promo
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News Life: the Lighter Side Rotating Text Promo
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Entertainment Movies Text Link
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Sports Main Rotating Text Promo
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Sports Today's Line Up Rotating Text Promo
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Sports Various Sports Screens Rotating Text Promo
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EXHIBIT A-2
PROGRAMMING/CONTENT
. ICP shall create and manage an HTML website of news, information, culture
and entertainment for AOL's News channel pages.
. ICP shall create and manage a mix of daily, weekly and permanently archived
articles and features for the AOL News channel
. All editorial areas of ICP's Interactive Site will be available to XXX.xxx.
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