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EXHIBIT 10.9
****CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES EXCHANGE ACT OF 1933,
AS AMENDED.
CONFIDENTIAL
AMENDED AND RESTATED ANCHOR TENANT AGREEMENT
This Amended and Restated Anchor Tenant Agreement (this "Agreement"),
dated July 23, 1999 (the Amendment Date) but effective as of October 1, 1998
(the "Effective Date"), is made and entered into by and between America Online,
Inc. ("AOL"), a Delaware corporation, with its principal offices at 00000 XXX
Xxx, Xxxxxx, Xxxxxxxx 00000, and The Knot, Inc. ("Interactive Content Provider"
or "ICP"), a Delaware corporation, with its principal offices at 000 Xxxxxxxx
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (each a "Party" and collectively the
"Parties").
INTRODUCTION
The Parties entered into an Anchor Tenant Agreement effective as of
October 1, 1998 (the "Prior Agreement") and subsequently determined that it
would be mutually beneficial to broaden the relationship contemplated thereby.
Accordingly, the Parties have entered into this Agreement which supersedes the
Prior Agreement. AOL and ICP each desires that AOL provide access to the ICP
Internet Site, the Online Area and the other ICP Programming, subject to the
terms and conditions set forth in this Agreement. Defined terms used but not
otherwise defined in this Agreement shall be as defined on Exhibit B attached
hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 PROGRAMMING AND DISTRIBUTION. Beginning on a mutually agreed
upon date(s) after the Amendment Date, AOL shall provide ICP
with the promotions and reserved programming areas set forth
on Exhibit A-1. The promotions and reserved programming areas
described on Exhibit A-1 and any other promotions provided by
AOL to ICP shall be referred to as the "Promotions." Subject
to ICP's reasonable approval, AOL will have the right to
fulfill its promotional commitments with respect to any of the
foregoing by providing ICP comparable promotional or
programming placements in appropriate alternative areas of the
AOL Network. In addition, if AOL is unable to deliver any
particular Promotion, AOL will work with ICP to provide ICP,
as its sole remedy, a comparable promotional or programming
placement. Except to the extent expressly described herein,
the exact form, placement and nature of the Promotions shall
be determined by AOL in it's reasonable editorial discretion.
ICP shall comply with the programming requirements and provide
the Content set forth on Exhibit A and AOL's provision of
Promotions in connection with any particular AOL Property
shall be conditioned upon ICP's compliance with the
programming requirements and provision of the Content set
forth on Exhibit A-1 for such AOL Property.
1.2 ONLINE AREA AND OTHER CONTENT. ICP shall work diligently to
develop, implement and maintain the Online Area and the other
ICP Programming, which shall consist of the Content described
on Exhibit A-2 hereto (the "Programming Plan"). ICP shall
produce the Online Area using AOL's "Rainman" forms, in the
case of the AOL Service, or using other technology designated
by AOL and shall develop the design of the Online Area and
other ICP Programming in consultation with AOL and in
accordance with any standard design and content publishing
guidelines provided to ICP by AOL (including, without
limitation, any HTML publishing guidelines). The ICP Internet
Site shall consist of the Content described on the Programming
Plan. ICP shall not authorize or permit any third party to
distribute any Content of ICP through the AOL Network absent
AOL's prior written approval; provided, however, that ICP
shall not be deemed to have violated this provision as a
result of Content in third party areas which either (a)
promotes the Wedding subchannel or the Online Area or (b) is
wedding-related Content and contextually relevant to the
Content in such third party area. The inclusion of any
additional Content for distribution through the AOL Network
(including, without limitation, any features, functionality or
technology) not
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expressly described on Exhibit A-2 shall be subject to AOL's
prior written approval. Each screen of the Online Area which
is linked to from the main screen of the Weddings Area shall
contain a promotional link back to the main screen of the
Weddings Area; the form and content of such link shall be
mutually agreed upon by the Parties.
1.3 LICENSE. ICP hereby grants AOL a nonexclusive worldwide
license to use, market, license, store, distribute, reproduce,
display, adapt, communicate, perform, transmit, and promote
the ICP Internet Site, the ICP Programming and the Licensed
Content (or any portion thereof) through the AOL Network as
AOL may determine in its sole discretion, including without
limitation the right to integrate Content from the ICP
Internet Site and/or ICP Programming by linking to specific
areas thereon, provided that the link to any such Content on
the AOL Network shall conform to the specifications of an ICP
Presence; provided, however, that if ICP gives AOL written
notice [****] to a particular [****] or [****] of the Licensed
Content (including the ICP Programming) by AOL [****] of the
AOL Properties listed on Exhibit A-1 or any co-branded
versions thereof and stating a reasonable basis for such
[****], AOL shall take action reasonably promptly to [****]
such [****] or [****] such [****]; provided, further, that if
ICP exercises such right more than [****] (provided, that any
subsequent [****] by ICP to a particular use [****] previously
[****] to shall not count as a subsequent exercise of such
right), AOL shall have the right, at its option, to terminate
this Agreement by giving ICP written notice thereof. In the
event of such termination during a quarter in which ICP has
made a quarterly installment of the carriage fee set forth in
section 1.5 applicable to such quarter, AOL shall have the
option of (i) making the termination effective as of the end
of such quarter or, subject to AOL's right to offset any and
all amounts due from ICP to AOL hereunder, to refund a pro
rata portion of the carriage fee (i.e., quarterly installment
paid by ICP applicable to such quarter divided by the number
of days in such quarter multiplied by the number of days after
termination remaining in such quarter).
1.4 OTHER INTERACTIVE AREAS.
1.4.1 AOL Approval. ICP shall not be permitted to establish
any "pointers" or links between the ICP Programming
and any other area on or outside of the AOL Network,
including, without limitation, sites on the World
Wide Web portion of the Internet, other than
temporary editorial links to contextually relevant
Content and links described on Exhibit A-2, without
the prior written approval of AOL. In addition, AOL
may restrict its approval (at any time) to specific
portions of Content, Products, or functionality
within a Linked Interactive Site. In such case,
establishment of the link from the ICP Programming to
the Linked Interactive Site will be subject to mutual
agreement of the Parties regarding the means by which
access will be restricted to the approved portions of
the Linked Interactive Site. All Content linked to
from ICP Programming, whether or not such links
require (or receive) AOL approval, shall be subject
to the terms of this Agreement. Any Linked
Interactive Site which is (a) described on Exhibit
A-2, (b) permanently linked to any ICP Programming,
or (c) contains Content which is material to the ICP
Programming (e.g. contains a material amount of
Content addressing a material topic of such ICP
Programming, receives a material amount of AOL Member
traffic, or is promoted prominently within such ICP
Programming) shall conform to AOL's technical
specifications and guidelines, including the
Operating Standards set forth on Exhibit F.
1.4.2 Management. ICP shall design, create, edit, manage,
review, update, and maintain the ICP Internet Site,
ICP Programming and the Licensed Content in a timely
and professional manner and in accordance with the
terms of this Agreement and shall keep the Licensed
Content current, accurate and well-organized. ICP
shall ensure that the Licensed Content within the ICP
Internet Site and ICP Programming is equal to or
better
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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than the Content distributed by ICP through any other
ICP Interactive Site in all material respects,
including without limitation, quality, breadth,
timeliness, functionality, features, prices of
products and services and terms and conditions,
except (a) to the extent inclusion of such Content
would otherwise violate this Agreement, (b) as
otherwise expressly stated on Exhibit A-2, and (c) to
the extent AOL does not approve or accept the
inclusion of, or requests specific changes to,
additional Content necessary to comply with this
sentence. Except as specifically provided for herein,
AOL shall have no obligations of any kind with
respect to the ICP Internet Site or ICP Programming.
ICP shall be responsible for any hosting or
communication costs associated with the ICP Internet
Site and ICP Programming (including any Linked
Interactive Sites), including, without limitation,
the costs associated with (i) any agreed-upon direct
connections between the AOL Network and the ICP
Internet Site or ICP Programming (including the
dedicated line for the remote managed gateway) or
(ii) a mirrored version of the ICP Internet Site. Any
Linked Interactive Sites shall be subject to the
license set forth in Section 1.2 above. ICP will
permit AOL Members to access and use any ICP
Interactive Site free of charge during the Term. AOL
Members shall not be required to go through a
registration process (or any similar process) in
order to access and use the ICP Internet Site, ICP
Programming (including any Linked ICP Interactive
Site) or the Licensed Content, other than in order to
register within ICP's gift registry and the tools and
services described on Exhibit A-2 as requiring a
registration process, and such registration processes
shall be no more burdensome than the registration
process utilized by ICP on any other ICP Interactive
Site or for non-AOL Members. During the Term and for
the [****] period after the expiration or
termination thereof, ICP shall allow AOL Members to
access and use any ICP Interactive Site on terms and
conditions no less favorable than the terms and
conditions available to other users of such ICP
Interactive Site. 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 or its promotional obligations under
Section 2 and such failure continues beyond two (2)
business days after written notice thereof, AOL will
have the right (in addition to any other 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.
1.5 CARRIAGE FEE. On or before each of [****] ICP shall pay AOL
[****]. Thereafter, ICP shall pay AOL [****] [****] on or
before each of [****] of each year during the Term; provided,
however, if ICP elects to continue the [****] set forth on
Exhibit A-1.A after the end of the second year of the Term,
ICP shall pay AOL an additional carriage fee of [****] per
quarter thereafter.
1.6 MEMBER BENEFITS. ICP will promote through the ICP Internet
Site and/or ICP Programming any special or promotional offers
made available by or on behalf of ICP through any ICP
Interactive Site or any other distribution channel. In
addition, ICP shall promote through the ICP Internet Site
and/or ICP Programming special offers exclusively available to
AOL Members ("AOL Exclusive Offers") (e.g., 10% off purchases
in ICP's Wedding gift registry store). ICP shall, at all
times, feature at least [****] AOL Exclusive Offer for AOL
Members (except as otherwise mutually agreed upon by the
Parties). The AOL Exclusive Offer made available by ICP shall
provide a substantial member benefit to AOL Members, either by
virtue of a meaningful price discount, product enhancement,
unique service benefit or other special feature. ICP will
provide AOL with reasonable prior notice of AOL Exclusive
Offers and other special offers so that AOL can, in its
editorial discretion, market the availability of such offers.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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1.7 PREMIER STATUS.
1.7.1 (a) AOL Service. So long as ICP is in compliance with
this Agreement, ICP shall be the only third party
receiving continuous promotion on the main screen of
the Weddings subchannel (or any specific successor
thereof) of the AOL Service (the "Weddings Area"),
for [****] covering the entire spectrum of topics
directly related to [****]. In addition, so long as
ICP is in compliance with this Agreement, AOL will
not enter into an arrangement with a third party to
provide a [****] area within the [****] exclusively
dedicated to covering the entire spectrum of topics
directly related to [****]. So long as ICP is in
compliance with this Agreement, the Weddings Area
shall be the primary comprehensive programming area
on the AOL Service that is dedicated to covering the
entire spectrum of topics directly related to [****];
provided, however, that this sentence shall not be
construed to limit or otherwise affect AOL's
editorial discretion within the Weddings Area (e.g.
to influence the overall programming plan of, limit
the Content that AOL may program into, or to require
AOL to include certain Content within, the Weddings
Area).
The entities set forth in Exhibit H are [****]
Providers covering the entire spectrum of topics
related to [****] that ICP represents are [****] of
ICP (the "ICP Competitors"). With respect to the ICP
Competitors, so long as ICP is in compliance with all
material terms of this Agreement, ICP will be the
[****] third-party Weddings-Only Content Provider
providing permanent Weddings-Only Content and
programming which covers the entire spectrum of
topics related to weddings on the AOL Service [****]
with the exception of wedding registries
("Exclusivity"). ICP may provide AOL with an updated
list of ICP Competitors ("Competitor List") from time
to time; provided, however, that Oxygen Media, Inc.,
Xxxxx.xxx Network, and iVillage, Inc. (and their
respective properties and affiliates) shall not be
deemed ICP Competitors in any event and this [****]
shall not prevent AOL from entering into contracts or
relationships with [****] Providers who are not on
the [****] (a) prior to AOL entering into such
contract or relationship or (b) in the case of ICP
Competitors added to the Competitor List subsequent
to the execution of this Agreement, prior to AOL
entering into negotiations regarding such contract or
relationship. ICP acknowledges that AOL does not
control the Content which appears within third party
content areas on the AOL Service or on interactive
sites linked to from the AOL Service; provided, that
AOL agrees that it will not [****] of the [****] by
[****] an ICP Competitor permanently within the AOL
Service on [****] which [****] an ICP Competitor
(such as, by way of example, permanently placing
within the AOL Service a button or banner which reads
[****]).
In addition, AOL shall not sell or license
advertisements to [****] to appear specifically
within the editorial and Rainman pages created by ICP
as described in Section B.1 of Exhibit A-2
(collectively, the "Editorial Packages"); provided
that this restriction shall not apply to "run of
service", "run of channel" or other non-targeted
advertising packages.
(b) XXX.xxx. After the Amendment Date, so long as ICP
is in compliance with this Agreement, (i) the Plan
Your Wedding Time Saver (or its successor) shall be
the primary comprehensive programming area on XXX.xxx
that is dedicated to covering the entire spectrum of
topics directly related to [****]; provided, however,
that this sentence
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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shall not be construed to limit or otherwise affect
AOL's editorial discretion within the Plan Your
Wedding Time Saver (e.g. to influence the overall
programming plan of, limit the Content that AOL may
program into, or to require AOL to include certain
Content within, the Plan Your Wedding Time Saver) and
(ii) ICP shall have the premier programming rights in
the Plan Your Wedding Time Saver described in Exhibit
A-1.
(c) Netscape. After the Amendment Date, so long as
ICP is in compliance with this Agreement, the
Weddings Index Page shall be the primary
comprehensive programming area on Netscape Netcenter
that is dedicated to covering the entire spectrum of
topics directly related to [****]; provided,
however, that this sentence shall not be construed to
limit or otherwise affect AOL's editorial discretion
within the Weddings Index Page (e.g. to influence the
overall programming plan of, limit the Content that
AOL may program into, or to require AOL to include
certain Content within, the Weddings Index Page) and
(ii) ICP shall have the premier programming rights on
the Weddings Index Page described in Exhibit A-1.
(d) CompuServe. After the Amendment Date, so long as
ICP is in compliance with this Agreement, the
Weddings Department of the CompuServe Service (the
"Wedding Department") shall be the primary
comprehensive programming area on the CompuServe
Service that is dedicated to covering the entire
spectrum of topics directly related to [****];
provided, however, that this sentence shall not be
construed to limit or otherwise affect AOL's
editorial discretion within the Weddings Department
(e.g. to influence the overall programming plan of,
limit the Content that AOL may program into, or to
require AOL to include certain Content within, the
Weddings Department) and (ii) ICP shall have the
premier programming rights on the Weddings Department
main screen described in Exhibit A-1.
(e) AOL Hometown. After the Amendment Date ICP will
be a primary third party (non-AOL Affiliate) provider
of Content directly related to weddings within the
"Wedding" department of Hometown AOL (or any specific
successor thereof) expressly promoted by AOL on a
continuous basis in AOL Hometown as specified herein.
1.7.2 Notwithstanding the foregoing, (and without limiting
any actions which may be taken by AOL without
violation of ICP's rights hereunder), no provision of
this Agreement shall limit AOL's ability (on or off
the AOL Network) to (i) undertake activities or
perform duties pursuant to existing arrangements with
third parties (or pursuant to any agreements to which
AOL becomes a party subsequent to the Effective Date
as a result of Change of Control, assignment, merger,
acquisition or other similar transaction); provided,
however, that [****] that, to [****], as of the
Effective Date it is [****] with [****] that would
[****] to [****] of Section 1.7.1 in any [****];
provided, further that in the event of [****] of the
[****] and a [****] of Section 1.7.1, ICP shall have
the right, [****], written notice ([****] in
reasonable [****] and the [****] of Section 1.7.1) if
[****] does [****] the [****] of Section 1.7.1 that
is the [****] of such [****]; (ii) advertise, promote
or market, or sell advertising or promotions to, any
third party Weddings-Only Content Provider, including
without limitation the ICP Competitors, or for any
wedding-related products or services, including
wedding registries; provided that, AOL will not
directly guarantee promotions or advertisements for
[****] on the [****] main screen (other than
registries), but AOL shall not be deemed to have
breached this provision by providing such promotions
and advertisements on the [****] main screen on a ROS
(i.e., run of service) basis so long as AOL [****]
any ROS promotions or advertisements for
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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[****] from the [****] main screen within [****]
after AOL receives written notice from ICP thereof,
(iii) create contextual links to wedding-related
Content or editorial commentary on wedding-related
topics; or (iv) enter into arrangements with third
parties, including [****], to provide programming
and/or marketing areas dedicated to particular
wedding-related topics (such as, without limitation,
local wedding services, honeymoons, engagement rings,
financial planning, etc.); provided that, in
connection with such arrangements, AOL shall not
guarantee promotions for any [****] on the [****]
main screen other than as provided in subparagraph
1.7.2(ii).
1.7.3 AOL shall have the right to terminate AOL's
commitments set forth in Section 1.7.1 and ICP's
programming rights described on Exhibit A, in whole
or in part, if ICP is not one of [****] dedicated to
wedding-related topics and/or the Content on the ICP
Programming is not commensurate with such market
position, as determined by evaluating ICP, the ICP
Internet Site and/or the ICP Programming, as a whole,
based on relevant criteria including the following:
(a) based on a mutually-approved (which approval
shall not be unreasonably withheld or delayed)
cross-section of third-party reviewers who are
recognized authorities in such market and (b) with
respect to all material quality averages or standards
in such industry, including each of the following:
(i) scope and quality of Content, (ii) scope,
selection and pricing of products and services, (iii)
quality and brands of products and services, (iv)
customer service and fulfillment associated with the
marketing and sale of products and services and (v)
user traffic, as measured by page views, and audience
reach, as measured by share or percentage of Internet
online users as reported by Media Metrix or similar
organization reasonably determined by AOL.
2. PROMOTION. Each Party shall cooperate with and reasonably assist the
other Party in supplying material for marketing and promotional
activities. ICP shall perform the promotional obligations set forth on
Exhibit E attached hereto.
3. REPORTING; PAYMENT.
3.1 USAGE AND OTHER DATA. AOL shall make available to ICP a
monthly report specifying for the prior month aggregate usage
and Impressions with respect to ICP's presence on the AOL
Network, which are similar in substance and form to the
reports provided by AOL to other content partners similar to
ICP. ICP will supply AOL with quarterly (or monthly upon
request by AOL) reports which reflect total impressions by AOL
Members to the ICP Internet Site and any Linked ICP
Interactive Site during the prior month, total impressions by
all users to the ICP Internet Site and any Linked ICP
Interactive Site during the prior month and the number of and
dollar value associated with the transactions involving AOL
Members and aggregated registration information (which shall
be considered Confidential Information) obtained from AOL
Members at the ICP Internet Site or Linked ICP Interactive
Site during the period in question. ICP represents that all
URLs related to the ICP Internet Site are listed on Exhibit
A-2 and ICP shall provide AOL with an update of such list
promptly upon any change thereto. ICP shall provide detailed
information to AOL regarding (i) AOL Advertisements sold by
ICP or its agents and (ii) any advertising or paid promotional
activity on the ICP Internet Site and any Linked ICP
Interactive Sites. AOL shall provide detailed information to
ICP regarding any AOL Advertisements sold by AOL or its agents
which give rise to Advertising Revenues. In reporting any
advertising arrangement, each Party shall indicate the name of
the advertiser, the terms of the advertising arrangement and
the amount paid (or to be paid) to the Party or its agents.
3.2 PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a quarterly
report documenting its compliance with any promotional
commitments it has undertaken pursuant to this Agreement in
the form attached as Exhibit E hereto.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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3.3 PAYMENT SCHEDULE. Except as otherwise specified herein, each
Party agrees to pay the other Party all amounts received and
owed to such other Party as described herein on a quarterly
basis within sixty (60) days of the end of the quarter in
which such amounts were collected by such Party. The first
quarter for which payment is to be made shall (i) begin on the
first day of the month following the month of execution of
this Agreement and (ii) include the portion of the month of
execution following the Effective Date (unless this Agreement
was executed on the first day of a month, in which case the
quarter shall be deemed to begin on the first day of such
month).
3.4 WIRED PAYMENTS. All payments by ICP hereunder shall be paid in
immediately available, non-refundable U.S. funds wired to the
"America Online" account, Account Number [****], or such other
account of which AOL shall give ICP written notice.
4. ADVERTISING AND MERCHANDISING
4.1 ADVERTISING SALES. AOL owns all right, title and interest in
and to the advertising and promotional spaces within the AOL
Network (including, without limitation, advertising and
promotional spaces on any AOL forms or pages preceding or
framing the ICP Internet Site, ICP Programming, any AOL pages
on which ICP Programming resides and the Editorial Packages);
provided that ICP shall retain all right, title and interest
in and to the Licensed Content subject to the license set
forth in this Agreement. The specific advertising inventory
within any AOL forms or pages shall be as reasonably
determined by AOL. AOL shall have the exclusive right, but not
the obligation, to sell or license Products and Advertisements
through each Community Center (as defined in Exhibit A). AOL
hereby grants ICP the right to license or sell promotions,
advertisements, links, pointers or similar services or rights
("Advertisements") through the Online Area ("AOL
Advertisements"), subject to AOL's approval for each AOL
Advertisement.
4.2 ADVERTISING POLICIES. Any AOL Advertisements sold by ICP or
its agents shall be subject to AOL's then-standard advertising
policies, and ICP shall not sell an AOL Advertisement in a
category in which AOL or the applicable AOL Property has an
[****] (or other similarly [****]) relationship with a third
party. ICP shall not sell an AOL Advertisement to any other
Interactive Service; [****] that ICP may sell an AOL
Advertisement for a wedding-related product or service of an
[****], provided that such advertisement does not promote such
[****] as an [****] and such AOL Advertisement, or such
product or service, does not contain a direct link to any
promotion or advertisement for an [****] as an [****]. ICP
shall ensure that any AOL Advertisement sold by ICP complies
with all applicable federal, state and local laws and
regulations.
4.3 INTERACTIVE COMMERCE. Any merchandising permitted hereunder
through the ICP Internet Site and/or ICP Programming
(including any registries) shall be subject to (i) the
then-current requirements of AOL's merchant certification
program, (ii) AOL's standard terms and conditions applicable
to its interactive marketing partners, (iii) prior approval by
AOL of all products, goods and services to be offered through
the ICP Internet Site or the ICP Programming, and (iv) ICP
will take all reasonable steps necessary to conform its
promotion and sale of Products through the ICP Internet Site
and ICP Programming to the then-existing technologies
identified by AOL which are optimized for the AOL Service
including, without limitation, any "quick checkout" tool which
AOL may implement to facilitate purchase of Products by AOL
Members through the ICP Internet Site. ICP shall not conduct
any merchandising through the ICP Programming through
auctions, fee-based clubs or any method other than a direct
sales format or a wedding registry without AOL's prior written
consent, nor shall ICP promote any auctions or fee-based clubs
on the ICP Programming; provided, however, that ICP may
promote its existing [****] through the ICP Weddings Main
Screen Space. In addition, ICP shall not, through the ICP
Programming, (i) offer any Products on behalf of a third party
by linking to such third party's site,
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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(ii) establish any merchandising area or registry in the format of
a "shopping mall" or an aggregation of third party stores or
Products, or (iii) otherwise promote or advertise any third
party engaged in the activities described in clauses (i) or
(ii) of this sentence, in each case without AOL's prior
written consent. AOL hereby approves the offer, sale or
license of all Products in the categories set forth in Exhibit
I subject to AOL's continuing right to withdraw or restrict
its approval if the offer, sale or license of any Product(s)
or category(ies) of Products would violate AOL's contractual
commitments to third parties. ICP shall provide AOL with
detailed quarterly reports in mutually agreed upon form
detailing all transactions on the Online Area. ICP shall give
AOL commerce and merchandising partners a preferential
opportunity in connection with any merchandising or commerce
arrangements that ICP desires to enter into on the ICP
Internet Site and/or ICP Programming.
5. CUSTOMIZED ICP PROGRAMMING AND ICP INTERNET SITE
5.1 PERFORMANCE. ICP shall optimize all ICP Programming and the
ICP Internet Site for distribution hereunder according to AOL
specifications and guidelines (including, without limitation,
any HTML publishing guidelines) and the Operating Standards
set forth on Exhibit F attached hereto.
5.2 CUSTOMIZATION. ICP shall customize all ICP Programming and the
ICP Internet Site for AOL Members as follows:
(a) ICP shall customize and co-brand the ICP Internet Site
for distribution over certain AOL Properties as more
particularly described on Exhibit A-1. The customization
and co-branding described in Exhibit A-1 represents the
manner in which AOL currently contemplates that such
customization and co-branding will appear. ICP shall make
any reasonable changes to the customization and/or
co-branding requirements of any AOL Property that may
occur during the Term.
(b) ICP shall ensure that AOL Members accessing the ICP
Programming or linking to the ICP Internet Site do not
receive advertisements, promotions or links (i) for any
Interactive Service or (ii) in violation of the applicable
AOL Property's then-standard advertising policies. ICP
shall ensure that AOL Members accessing the ICP
Programming or linking to the ICP Internet Site do not
receive advertisements, promotions or links in a category
in which AOL or the applicable AOL Property has an [****]
another [****] to a third party; provided, however, that
if ICP is in violation of the terms of this Section 5.2(b)
due to AOL's failure to inform ICP of such category and
such violation is not willful or repeated, then AOL's
[****] shall [****] require that ICP promptly (within two
(2) business days) [****] any such [****], or [****] (or
otherwise [****] of [****]).
(c) ICP shall provide continuous navigational ability for
AOL Members to return to an agreed-upon point on the
applicable AOL Property (for which AOL shall supply the
proper address) from ICP Internet Site or ICP Programming
(e.g., the point on the applicable AOL Property from which
such site is linked), which, at AOL's option, may be
satisfied through the use of a hybrid browser format. ICP
shall ensure that navigation back to the AOL Network from
the ICP Internet Site, whether through a particular
pointer or link, the "back" button on an Internet browser,
the closing of an active window, or any other return
mechanism, shall not be interrupted by ICP through the use
of any intermediate screen or other device not
specifically requested by the user, including without
limitation through the use of any html pop-up window or
any other similar device. Rather, such AOL traffic shall
be pointed directly back to the AOL Network as designated
by AOL.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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(d) Upon AOL's request, ICP shall use AOL's tools and
technology for all community-related utilities and
functionality (including, without limitation, chat,
message boards, and web page community services such as
AOL Hometown) within ICP Programming and the ICP Internet
Site and any registration or similar processes permitted
hereunder (once AOL's registration tools become available)
to the extent technically feasible and to the extent such
tools and technology can be integrated in a substantially
similar manner as ICP's current tools in terms of user
experience.
5.3 LINKS ON ICP INTERNET SITE. The Parties will work together on
mutually acceptable links (including links back to AOL) within
the ICP Internet Site in order to create a robust and engaging
AOL member experience. ICP shall take reasonable efforts to
ensure that AOL traffic is generally either kept within the
ICP Internet Site or ICP Programming or channeled back into
the AOL Network. To the extent that AOL notifies ICP in
writing that, in AOL's reasonable judgment, links from the ICP
Internet Site or ICP Programming cause an excessive amount of
AOL traffic to be diverted outside of such site and the AOL
Network in a manner that has a detrimental effect on the
traffic flow of the AOL audience, then ICP shall immediately
reduce the number of links out of such site(s). In the event
that ICP cannot or does not so limit diverted traffic from
such site, AOL reserves the right to terminate such links from
the AOL Network to such site.
5.4 REVIEW. ICP shall allow appropriate AOL personnel to have
access to all ICP Programming and the ICP Internet Site for
the purpose of reviewing such sites to determine compliance
with the provisions of this Section 5.
6. TERM, TERMINATION, SITE AND CONTENT PREPARATION, PRESS RELEASES.
6.1. TERM. Unless earlier terminated as set forth herein, the
initial term of this Agreement shall commence on the Effective
Date and expire on January 6, 2003. Provided that AOL provides
at least [****] to the [****] during the final year of the
initial term, AOL shall have the right, at its option, to
renew this Agreement for a [****] renewal term on the same
terms and conditions set forth herein, by giving ICP written
notice of such election not later than ninety (90) days prior
to the expiration of the initial term. The Parties acknowledge
that AOL may give such notice whether or not it has provided
ICP with the required Impressions as of such date and AOL
shall have the remainder of the final year of the initial term
to provide such Impressions. If AOL [****] to provide the
[****] by the end of the final year of the initial term, AOL's
right to renew this Agreement shall be null and void
notwithstanding that AOL may have provided written notice of
its election to renew this Agreement. Upon the expiration of
the term of this Agreement without renewal by AOL, or upon the
earlier termination of this Agreement, AOL shall have the
right, at its option, [****] to [****], to use one or more ICP
trademarks or tradenames as keywords and/or text-based links
from the AOL Network to any ICP Interactive Site. Upon the
expiration or earlier termination (other than by reason of a
material breach of this Agreement by ICP) of the term of this
Agreement without renewal by AOL, AOL agrees to give notice to
each AOL Member then-registered in ICP's gift registry through
the AOL Service, which notice shall inform such AOL Members as
to how ICP's registry can be located after such expiration or
termination of this Agreement.
6.2. AOL TERMINATION RIGHTS.(a) AOL shall have the right to
terminate all of ICP's rights and AOL's obligations with
respect to AOL Hometown [****] by giving ICP thirty (30) days
prior written notice thereof; provided, however, that if AOL
exercises such termination right and subsequently desires to
include on AOL Hometown a community area devoted to
comprehensive weddings content and information, then AOL shall
discuss in good faith such opportunity with ICP prior to
entering into a definitive written agreement with another
provider thereof.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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(b) AOL shall have the right to terminate its obligations with
respect to Netscape Netcenter, including without limitation
AOL's obligations under Section 1.7.1(c) and with respect to
the ICP Weddings Index Page Space (as defined on Exhibit A) at
any time after the date that is [****] after the Amendment
Date by giving ICP written notice thereof (which notice may be
given prior to the date that is [****] after the Amendment
Date); provided, however, if AOL exercises such termination
right, AOL will provide ICP with a [****] on the Weddings
Index Page of Netscape Netcenter.
(c) AOL shall have the right to terminate its obligations with
respect to the CompuServe Service, including without
limitation AOL's obligations under Section 1.7.1(d) and with
respect to the ICP Weddings Department Screen Space (as
defined on Exhibit A) at any time after the date that is
twenty-six (26) months after the Amendment Date by giving ICP
written notice thereof (which notice may be given prior to the
date that is [****]); provided, however, if AOL exercises such
termination right, AOL will provide ICP with a [****] on the
main screen of the Weddings Department of the CompuServe
Service.
6.3 TERMINATION FOR BREACH. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days
written notice thereof.
6.4 TERMINATION FOR BANKRUPTCY/INSOLVENCY OR CHANGES IN BUSINESS.
Either Party may terminate this Agreement immediately
following written notice to the other Party if the other Party
(i) ceases to do business in the normal course, (ii) becomes
or is declared insolvent or bankrupt, (iii) is the subject of
any proceeding related to its liquidation or insolvency
(whether voluntary or involuntary) which is not dismissed
within ninety (90) calendar days or (iv) makes an assignment
for the benefit of creditors.
6.5 TERMINATION OF PRIOR AGREEMENT. Effective as of the Effective
Date, the Prior Agreement shall terminate and be of no further
force and effect and the Parties shall have no liability for
matters accruing thereunder after the Effective Date except
for provisions of the Prior Agreement that expressly survive
the term of the Prior Agreement.
6.6 SITE AND CONTENT PREPARATION. ICP shall achieve Site and
Content Preparation within sixty (60) days after the Amendment
Date; provided that all Content required to be provided by ICP
under the Prior Agreement (e.g., the Online Area) shall
continue to be provided immediately upon the Amendment Date.
"Site and Content Preparation" shall mean that ICP shall have
completed all necessary production work for the ICP Internet
Site, all ICP Programming and any other related areas or
screens (including programming all Content thereon);
customized and configured the ICP Internet Site, and all ICP
Programming in accordance with this Agreement; and completed
all other necessary work (including, without limitation,
undergone all AOL site testing set forth on Exhibit F) to
prepare the ICP Internet Site, all ICP Programming and any
other related areas or screens to launch on the AOL Network as
contemplated hereunder.
6.7 PRESS RELEASES. Each Party will submit to the other Party, for
its prior written approval, which will not be unreasonably
withheld or delayed, any press release or any other public
statement ("Press Release") regarding the transactions
contemplated hereunder. Notwithstanding the
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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foregoing, either Party may issue Press Releases and other
disclosures as required by law or as reasonably advised by
legal counsel without the consent of the other Party and in
such event, the disclosing Party will provide at least five
(5) business days prior written notice of such disclosure. The
failure to obtain the prior written approval of the other
Party shall be deemed a material breach of this Agreement,
whereby the non-breaching Party may terminate this Agreement
immediately following written notice to the other Party, and
the cure provision of Section 6.2 of this Agreement shall not
apply.
7. WARRANTS. ICP hereby grants to AOL a warrant (the "Warrant")
representing the right for a eight (8) year period to purchase shares
of ICP's Common Stock (the "Common Stock") equal to two and one-half
percent (2.5%) of all of ICP's capital stock, on a fully-diluted basis,
as of the Amendment Date, at a price per share equal to seven and
20/100 Dollars ($ 7.20). Upon execution of this Agreement, ICP shall
issue the Warrant and will enter into a Stock Subscription Warrant on
the form attached hereto as Exhibit K (the "Warrant Agreement"), which
will document the grant of the Warrant hereby made to AOL. The rights,
preferences and privileges of the Warrant and the Common Stock issuable
upon exercise of the Warrant shall be as set forth in the Warrant
Agreement. AOL shall have the right to terminate this Agreement in the
event of a material breach by ICP of the Warrant Agreement that remains
uncured beyond thirty (30) days following written notice thereof.
8. TERMS AND CONDITIONS. The terms and conditions set forth on the
Exhibits attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the Effective Date.
AMERICA ONLINE, INC. THE KNOT, INC.
By: _________________________________ By: _________________________________
Print Name: ________________________ Print Name: _________________________
Title: ______________________________ Title: _____________________________
Date: _______________________________ Date: ______________________________
Tax ID/EIN#: ______________________
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EXHIBIT A
EXHIBIT A-1: CARRIAGE PLAN AND PROGRAMMING REQUIREMENTS
A. Anchor Tenancy. ICP shall receive distribution within the AOL Service
as follows: AOL shall (a) continuously and prominently place an
agreed-upon ICP link, branded logo or banner (an "Anchor Tenant
Button") on the Weddings Area main screen so long as AOL, in its sole
discretion, maintains buttons for wedding registries on the Weddings
Area main screen , which Anchor Tenant Button shall link to the Online
Area, (b) provide ICP with a standard Anchor position for the first two
years of the initial term, and thereafter at ICP's option for an
additional [****] as set forth in Section 1.5, in (1) the Shopping
Channel (or its successor on the AOL Service or XXX.xxx) Wedding
Registries department, (2) the wedding registries area (or its
successors) within the Shopping department of Netscape Netcenter, so
long as ICP is entitled to premier status on Netscape Netcenter
pursuant to Section 1.7.1(c), and (3) the wedding registries area (or
its successors) within the Shopping Channel of the CompuServe Service,
so long as ICP is entitled to premier status on the CompuServe Service
pursuant to Section 1.7.1(d) (which Shopping Channels and department
may, at AOL's option, be designed and developed by AOL as a single
cross-platform product), (c) provide ICP with carriage on the area
within the Digital City content area on the AOL Service that promotes
weddings content and which is currently known as the "Wedding Guide"
area; provided that, if AOL eliminates such area, AOL shall not be
required to provide ICP with such carriage and ICP shall not be
required to provide the DCI Promotions (as defined on Exhibit E), and
(d) provide ICP with the keyword "Knot" together with such other of the
keywords listed on Exhibit G as AOL may provide at its discretion,
which keywords shall link to the Online Area. The Weddings Area will be
accessible through the Romance and Womens subchannels (or any specific
successor(s) thereof). The Parties agree and acknowledge that (i) AOL
may, at any time, relaunch the Weddings Area, (ii) such relaunch may
occur with such other or additional Content, wedding registries or
areas as AOL may choose in its discretion (other than in the ICP
Weddings Main Screen Space), and (iii) upon relaunch of the Weddings
Area, AOL may issue press releases announcing the launch of the
Weddings Area. Subject to the provisions contained herein, the AOL
Keywords "Bridal", "Groom(s)", "Bride(s)", and "Wedding(s)" shall link
to the Weddings Area. -
B. Reserved Programming Space. Beginning on a mutually agreed upon date(s)
after the Amendment Date, AOL will provide approximately [****] of the
Programmable Space for ICP to provide Content on the Weddings Area main
screen (the "ICP Weddings Main Screen Space"). AOL will provide
approximately [****] of the Programmable Space for ICP to provide
Content on the Plan Your Wedding Time Saver main screen of XXX.xxx (the
"ICP Wedding Time Saver Space"). AOL will provide approximately [****]
of the Programmable Space for ICP to provide Content on the Weddings
Index Page of Netscape Netcenter (the "ICP Weddings Index Page Space").
AOL will provide approximately [****] of the Programmable Space for ICP
to provide Content on the Wedding Department main screen of the
CompuServe Service (the "ICP Wedding Department Screen Space"). The
main screen of the Weddings Area, the main screen of the Plan Your
Wedding Time Saver on XXX.xxx, the Weddings Index Page on Netscape
Netcenter and the main screen of the Weddings Department on the
CompuServe Service are collectively referred to herein as the "ICP
Programming Space Screens." The ICP Weddings Main Screen Space, the ICP
Wedding Time Saver Space, the ICP Weddings Index Page Space and the ICP
Wedding Department Screen Space are collectively referred to herein as
the "ICP Programming Space." Within each of the ICP Programming Space
Screens, AOL will provide ICP with approximately [****] of the
Programmable Space "above the fold" on such screen. AOL shall provide
ICP with prominent branding near the title on each of the main screen
of the Plan Your Wedding Time Saver on XXX.xxx , the Weddings Index
Page on Netscape Netcenter, the main screen of the Weddings Department
on the CompuServe Service and on each page of the Editorial Packages.
In the event AOL, in its sole discretion, allocates to ICP more than
the aforementioned percentage of any of the aforementioned areas or
screens, ICP shall program such additional space in accordance with
this Agreement, including without limitation this Exhibit A.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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ICP shall have programming control of the Content within the ICP
Programming Space, provided that (i) such Content shall be subject to
the terms of this Agreement, shall link solely to ICP Programming for
the applicable AOL Property as described in the Programming Plan and
shall be directly related to the Content described on Exhibit A, (ii)
ICP shall not sell or place paid advertisements, promotions or
sponsorship links, or any other branded Content (except with ICP's
Marks or, subject to the terms of this Agreement, AOL's Marks), within
the ICP Programming Space and no more than [****] of the ICP Weddings
Main Screen Space shall contain promotions, or links for any
merchandising permitted to be conducted or promoted by ICP on the ICP
Weddings Main Screen Space pursuant to Section 4.3 and (iii) AOL shall
retain all right, title and interest in and to, and shall have sole
control over, the components of the AOL Look and Feel within the ICP
Programming Space. AOL shall have sole control over the remaining
Programmable Space and all Non-Programmable Space, including the
exclusive right to sell advertising, select branding, marks and logos
and program Content within such screens; provided that, ICP shall have
the right to reasonably disapprove any Content (exclusive of
advertisements, promotions and registries) from an ICP Competitor
contained on AOL's portion of the Programmable Space of the Weddings
Area main screen ("AOL Programmable Space") as long as such disapproval
is based upon editorial redundancy and is not based upon a business or
competitive reason of ICP, including but not limited to, the fact that
such Content is from a Weddings-Only Content Provider and/or an ICP
Competitor. AOL shall notify ICP of any Content (exclusive of
advertisements , promotions and registries) from an ICP Competitor
contained on the AOL Programmable Space; provided that; (i) AOL's
inadvertent failure to notify ICP of such Content shall not constitute
a breach of contract, and (ii) ICP shall have two (2) business days to
disapprove of such Content as provided herein by written notification
to AOL specifying all reasons for disapproval. If ICP reasonably
disapproves of such Content as provided herein, AOL shall promptly take
commercially reasonable steps to discontinue the display of such
Content on the AOL Programmable Space.
C. Customization and Co-Branding Programming Requirements:
XXX.xxx: ICP shall create a version of the ICP Internet Site customized
for distribution through XXX.xxx (the "XXX-XXX.xxx Site") by (x)
displaying on each page of the XXX-XXX.xxx Site headers and footers of
size and type determined by AOL and which contain both XXX.xxx and ICP
branding, links to XXX.xxx, and (y) programming each page of the
XXX-XXX.xxx Site with a co-branded domain name (i.e., xxxxxxx.xxx.xxx
or some other AOL-approved treatment). The XXX-XXX.xxx Site shall
contain Content as described in the Programming Plan. All terms and
conditions of this Agreement applicable to the ICP Internet Site shall
apply to the XXX-XXX.xxx Site except as expressly otherwise stated.
COMPUSERVE: ICP shall create a version of the ICP Internet Site
customized for distribution through the CompuServe Service (the "ICP-CS
Site") by (x) displaying framing (including headers, footers and left
side navigation/menu bars) on each page of the ICP-CS Site of size and
type determined by AOL and which contain, as and to the extent
determined by AOL, CompuServe and ICP branding, links to the CompuServe
Service, a search box and promotional spaces to be programmed/served by
AOL (provided AOL agrees knot to promote ICP Competitors in such
spaces), (y) programming each page of the ICP-CS Site with a co-branded
domain name (i.e., xxxxxxx.xxxxxxxxxx.xxx) and (z) matching the look
and feel of the CompuServe Service on the ICP-CS Site. The ICP-CS Site
shall contain Content as described in the Programming Plan. All terms
and conditions of this Agreement applicable to the ICP Internet Site
shall apply to the ICP-CS Site except as expressly otherwise stated.
NETSCAPE: ICP shall create a version of the ICP Internet Site
customized for distribution through Netscape Netcenter (the "ICP-NS
Site") by (x) displaying a "C-frame" header, footer and left-side menu
bar on each page of the ICP-NS Site as well as the additional standard
programming elements as set forth in the Programming Plan, with such
C-frame of size and type determined by AOL with the headers and footers
containing both Netscape and ICP branding, links to Netscape Netcenter,
a search box and two (2) promotional spaces to be programmed/served by
AOL (provided that ICP shall not be required to implement the C-frame
to the extent not technically feasible, but ICP shall in any event
implement the headers and
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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footers as described above), (y) programming each page of the ICP-NS
Site with a co-branded domain name (i.e., xxxxxxx.xxxxxxxx.xxx or some
other AOL-approved treatment) and (z) matching the look and feel of
Netscape Netcenter on the ICP-NS Site.
D. AOL Hometown:
Within the "Wedding" department of the "Family Life" sub-category of
the "Family & Home" category of AOL Hometown, ICP will be entitled to
the following:
- [****] with corporate brand or logo through the front page of
the "Family & Home" category of AOL Hometown AOL, which
banners link to the ICP Internet Site.
- [****] of which may include an AOL-approved graphic (50 x 50
pixels in size) on the front page of the "Weddings" department
of AOL Hometown which text-fields directly link to a Community
Center.
- [****] in size) with corporate brand or logo on the top
navigation bar of the front page of the "Weddings" department,
each page of the corresponding Community Center linked to from
such department, and any Member Page developed within such
department, which banner will link to the ICP Internet Site.
All additional Promotions on Hometown AOL not specified herein will be
determined at AOL's sole discretion.
EXHIBIT A-2: DESCRIPTION OF CONTENT
A. ICP Programming.
I. Online Area
1. Overview/Purpose of Site: The one stop resource that provides brides
and xxxxxx, their families and their guests the information, goods and
services that they need to have the engagement, wedding, honeymoon and
home that they want. From engagement, to the registry process, from the
honeymoon through to the set-up of the newlywed home, The Knot provides
the answers to today's couples every need.
2. Categories of Programming:
-- Original Content: Planning, beauty, fashion, xxxxxx issues, wedding
gowns/dresses, bridesmaids, searchable databases of
gown/apparel/wedding photographers/local services/venues/planning
information, wedding ceremony and reception music, relationships,
honeymoon planning, romantic travel, books and book reviews, tuxedos
and formalwear, diamonds, engagement, Ethnic Weddings among them
Jewish/Asian/Afro-centric/ Latino and Greek, gay and lesbian weddings,
religion, new home, decorating, etiquette, advice experts, gifts,
registering, 2nd+ weddings, Families, Inter-weddings.
-- Member Generated Content (e.g., chat, live events, message boards,
personals and classifieds): Message boards and hosted live chat
pertaining to topics described in the original content.
-- Classifieds and listings: Not limited to but including local wedding
venues, vendors and services, honeymoon destinations.
-- Third Party Content: A broad range of wedding book authors,
honeymoon books and experts, Honeymoon Magazine, wedding related
content from online content providers, and other content relevant to
the categories described above in original content, subject to the
restrictions, terms and conditions contained in the Agreement.
-- Update Frequency: Daily, weekly and monthly and permanent features.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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-- Commerce: Knot registry, Knot shop, Aloha Honeymoon Travel Auctions,
subject to the restrictions, terms and conditions contained in the
Agreement.
-- Topics Covered: See the original content.
- Games: Trivia and surveys.
3. Categories of Links:
-- Permanent: sites editorially relevant to the topics described in the
original content Section above. Links to co-branded and non-co-branded
content areas that feature ICP content or brand. All links from Online
Area subject to AOL approval and other terms and conditions contained
in this Agreement.
-- Temporary: Links to content and sites, editorially relevant to the
topics described in the original content section above. All links from
Online Area subject to AOL approval and other terms and conditions
contained in this Agreement.
4. Technologies Employed: Windows NT, Perl, SQL, Java.
B. Other ICP Programming:
AOL SERVICE PROGRAMMING PLAN:
Partner provides: Comprehensive wedding-related content, the substantial
portion of which does not require registration; provided that access to
advice and functionality related to wedding planning may require
registration subject to the terms of this Agreement.
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SECTION 1 - GENERAL CONTENT REQUIREMENTS
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The content described below will be promoted from the Weddings @ AOL
screen. The topics and order of the topics below may change at AOL's
discretion and approval.
Gown of the Day
Tool Box
Wedding of the Week
Plan the honeymoon
--Advice from The Knot
Plan the Wedding
--Advice from The Knot
The Knot's Bridal Gown search and Wedding Checklist will be carried on the
page.
In addition, The knot will produce 5 editorial packages and 3 Rainman
screens per year as defined: Overall Requirements:
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- The Knot will receive 60% of programming space at a minimum to be used in
accordance with Section B of Exhibit A-1.
- Create these areas within 60 days after AOL's request.
- The look and feel will be determined and approved by AOL.
- Promotion within the AOL Service will be determined by AOL.
- These areas promoted by AOL and will be supported through the Knot
5 Editorial Packages Requirements:
- 1-3 Rainman screens
- Topics determined by AOL (e.g., Spring Entertainment) with consultation by
ICP
- An AOL ad banner position, size to be determined by AOL
- Weekly updates unless another schedule is determined by AOL
- Sponsorships, at AOL's discretion
- Unlike real estate which does not have a specific period of time, the
editorial packages will run for a period of time as determined by AOL. AOL
will provide ICP with the timing guidelines prior to production.
3 Rainman Screens Requirements:
- Topics determined by AOL (e.g., Honeymoons) with consultation by ICP
- An AOL ad banner position, size to be determined by AOL
- Weekly updates unless another schedule is determined by AOL
- Sponsorships, at AOL's discretion
- AOL will choose the content topics from topics covered by ICP
XXX.XXX PROGRAMMING PLAN:
Partner provides: Comprehensive wedding-related content, the substantial
portion of which does not require registration; provided that access to
advice and functionality related to wedding planning may require
registration subject to the terms of this Agreement.
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SECTION 1 - GENERAL CONTENT REQUIREMENTS
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The Knot's content will be integrated prominently on the Plan Your Wedding
Time Saver, a one-page step-by-xxxx xxxxx to wedding planning that can be
done on the Web. The content described below will all be carried on this
one page. The topics and order of the topics below may change, but The
Knot's prominence on the page will not. All links from XXX.XXX must go to
co-branded pages, which will include XXX.xxx headers, footers and domain
name.
Plan your wedding budget
--Advice from The Knot
--Budgeteer widget from The Knot
Choose the date for your wedding
--Advice from The Knot
The Guests
--Who-to-invite advice from The Knot
Choose a wedding site
-- Advice from The Knot
Choose a reception hall
-- Advice from The Knot
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Wedding Etiquette
--Advice from The Knot
--Weekly update of The Knot's Etiquette Q & A column
Find a photographer
--Advice from The Knot
Find a caterer
--Advice from The Knot
Plan the honeymoon
--Advice from The Knot
The Knot's Bridal Gown search and Wedding Checklist will be carried on the
page.
In addition, The Knot will produce 5 editorial packages and 3 HTML screens
per year as defined:
Overall Requirements:
- The Knot will receive 60% of programming space at a minimum to be used in
accordance with Section B of Exhibit A-1
- Create these areas within 60 days after AOL's request
- The look and feel will be determined and approved by AOL.
- Promotion within the AOL Service will be determined by AOL.
- These areas promoted by AOL and will be supported through the Knot
5 Editorial Packages Requirements:
- 1-3 HTML pages
- Topics determined by AOL (e.g., Spring Entertainment) with consultation by
ICP
- An AOL ad banner position, size to be determined by AOL
- Weekly updates unless another schedule is determined by AOL
- Sponsorships, at AOL's discretion
- Unlike real estate which does not have a specific period of time, the
editorial packages will run for a period of time as determined by AOL. AOL
will provide ICP with timing guidelines prior to production.
3 HTML pages Requirements:
- Topics determined by AOL (e.g., . Honeymoons) with consultation by ICP
- An AOL ad banner position, size to be determined by AOL
- Weekly updates unless another schedule is determined by AOL
- Sponsorships, at AOL's discretion - AOL will choose the content topics from
topics covered by ICP
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SECTION 2 - OTHER REQUIREMENTS
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1. Branding requirements: ICP shall host the pages of the ICP Internet Site on
the following domain:
xxxxxxx.xxx.xxx
In addition. ICP shall co-brand the
pages of the ICP Internet Site with headers and footers, for code which
can be found at:
xxxx://xxxxx.xxxxxxxx.xxx:0000/xxxx/xxxxx.xxxx
ID=partner, password=c0nt3nt
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2. Required reporting from Partner. The Knot must provide the server logs of
its Web sites that contain co-branded content. It should send the logs at
least weekly to an FTP site for AOL to retrieve. They should be in CERN
format and should contain HTTP referrers.
COMPUSERVE PROGRAMMING PLAN:
Partner provides: Comprehensive wedding-related content, the substantial
portion of which does not require registration; provided that access to
advice and functionality related to wedding planning may require
registration subject to the terms of this Agreement.
-------------------------------------------------------------------------------
SECTION 1 - GENERAL CONTENT REQUIREMENTS
-------------------------------------------------------------------------------
The Knot's content will serve as the Weddings offering on CompuServe. The
CompuServe Weddings Department main screen will be created and maintained
by the Knot and hosted on CompuServe. At CompuServe's discretion at least
six of the static links listed below will be featured at any one time. The
Knot enable sponsorships and other placement within the Weddings main
screen. The topics and order of the topics below may change, but The Knot's
prominence on the page will not. Except as specified, all links from
CompuServe will go to co-branded pages on the Knot's generally available
web site, which will include CompuServe left hand and top navigation and
domain name.
-- ICP shall create two mutually agreed upon features (e.g., Weddings 202:
The Knot's Guide to Second Weddings and All Inclusive Weddings: The Knot's
Guide for Complete Weddings Escapes) hosted on CompuServe. This content
will be original ICP content first appearing on CompuServe and shall not be
promoted through any other distribution channel for a period of six (6)
months after its first appearance on CompuServe.
Plan your wedding budget
--Advice from The Knot
--Budgeteer widget from The Knot
Choose the date for your wedding
--Advice from The Knot
The Guests
--Who-to-invite advice from The Knot
Choose a church
-- Advice from The Knot
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Choose a wedding site
-- Advice from The Knot
Choose a reception hall
-- Advice from The Knot
Wedding Etiquette
--Advice from The Knot
--Weekly update of The Knot's Etiquette Q & A column
Find a photographer
--Advice from The Knot
Find a caterer
--Advice from The Knot
Plan the honeymoon
--Advice from The Knot
Checklist widget
--Advice from The Knot
--Checklist widget from The Knot
The Knot's Bridal Gown search and Wedding Checklist will be carried on the
page.
In addition to the links specified above, at CompuServe's option and
direction, the Knot will create and feature additional content within the
CompuServe Weddings Department as specified by CompuServe, including, but
not limited to, content featured on the Knot's main site, newly created
content specifically relating to women, or content created by the Knot for
other AOL brands or third parties. The Knot will also work with CompuServe
to create at least 2 major and 4 minor promotions for the CompuServe
Weddings Department, including contests, special features and exclusive
content as mutually agreed upon by the Parties. The CompuServe Weddings
Department main screen will be updated no less than once per week, and the
"Weddings 202: CompuServe Guide to Second Weddings" and "All inclusive
Weddings: a Guide for Complete Weddings Escapes" main screens will be
updated at least monthly.
--------------------------------------------------------------------------------
SECTION 2 - OTHER REQUIREMENTS
--------------------------------------------------------------------------------
1. Branding requirements: At CompuServe's discretion, The Knot will co-brand
each of its pages and host them on the following domain:
xxxxxxx.xxxxxxxxxx.xxx
2. Required reporting from Partner. The Knot will provide reporting to
CompuServe as reasonably determined by CompuServe
3. Keywords to be granted to Partner: The Knot
NETCENTER PROGRAMMING PLAN:
Partner provides: Comprehensive wedding-related content, the substantial
portion of which does not require registration; provided that access to
advice and functionality related to wedding planning may require
registration subject to the terms of this Agreement.
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--------------------------------------------------------------------------------
SECTION 1 - GENERAL CONTENT REQUIREMENTS
--------------------------------------------------------------------------------
The Knot's content will be integrated prominently on the Plan Your Wedding
Time Saver, a one-page step-by-xxxx xxxxx to wedding planning that can be
done on the Web. The content described below will all be carried on this
one page. The topics and order of the topics below may change, but The
Knot's prominence on the page will not. All links from xxxxxxxx.xxx must go
to co-branded pages. (See illustration of co-branded article page below.)
Plan your wedding budget
--Advice from The Knot
--Budgeteer widget from The Knot
Choose the date for your wedding
--Advice from The Knot
The Guests
--Who-to-invite advice from The Knot
Choose a wedding site
-- Advice from The Knot
Choose a reception hall
-- Advice from The Knot
Wedding Etiquette
--Advice from The Knot
--Weekly update of The Knot's Etiquette Q & A column
Find a photographer
--Advice from The Knot
Find a caterer
--Advice from The Knot
Plan the honeymoon
--Advice from The Knot
In addition, The Knot's Bridal Gown search and Wedding Checklist will be
carried on the page.
--------------------------------------------------------------------------------
SECTION 2 - OTHER REQUIREMENTS
--------------------------------------------------------------------------------
3. Branding requirements: The Knot must co-brand each of its pages and host
them on the following domain:
xxxxxxx.xxxxxxxx.xxx
The code for the co-branding guidelines can be found at:
xxxx://xxxxx.xxxxxxxx.xxx:0000/xxxx/xxxxx.xxxx
ID=partner, password=c0nt3nt
Implementing the code will require minor changes to the parts of the code
that apply specifically to The Knot.
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4. Required reporting from Partner. The Knot must provide the server logs of
its Web sites that contain co-branded content. It should send the logs at
least weekly to an FTP site for AOL to retrieve. They should be in CERN
format and should contain HTTP referrers.
AOL HOMETOWN:
I. ICP will, in accordance with the programming plan set forth in Section
B below, do the following:
(i) subject to AOL's approval, program two (2) AOL-designated
promotional fields of the front page of the Wedding department of
AOL Hometown (referred to herein as a "Department Page")
consisting of the type of Content described in Section II.2 below
and update such promotional fields with new Content on no less
than a weekly basis; and
(ii) design, develop, manage and maintain a community area, located
within AOL Hometown (together with the Content contained therein)
linked to from each of the promotional fields on the Department
Page. Each such community area is referred to herein as a
"Community Center" and collectively are referred to as the
"Community Centers". ICP will develop and implement each
Community Center, consisting of the specific Content described in
Section II.2 below.
II.
II.1 Promotional Text Fields of Department Page(s)
- ICP will program the top two promotional text fields on the
Department page described above.
- These promotional text fields will be programmed with
contextually appropriate content which directly links to the
Partner's Community Center or other page registered within AOL
Hometown (displaying the AOL Hometown frameset). The promotional
text fields will NOT link to a domain other than
xxxxxxxx.xxx.xxx.
- Each promotional field will contain the following:
(1) Graphic: a 50 pixel x 50 pixel square click-able graphic,
provided in .GIF format
(a) NOTE: If no graphic is provided, a default, clickable
wing-ding will appear.
(2) Text: 60 CHARACTERS TOTAL: Three lines of twenty characters
each (spaces included)
(a) First line of twenty (20) characters is a hyperlinked
headline (dispatches to same URL that the graphic does)
(b) Second two (2) lines of twenty (20) characters each: normal
text, not hyperlinkable.
- These promotional text fields will be refreshed on a weekly
basis.
II.2 Community Center
- ICP WILL PRODUCE AT LEAST ONE "COMMUNITY CENTER" FOR THE
"WEDDINGS" DEPARTMENT OF AOL HOMETOWN CONSISTING OF, AT A
MINIMUM, THE FOLLOWING CONTENT (ADDITIONAL CONTENT MAY BE
PROVIDED SUBJECT TO AOL'S APPROVAL):
(1) strong "Join our community" messaging
(2) strong "build a home page now" messaging
(3) a selection and listing of one or more of the best Member
Page(s) (weekly basis)
(4) at least five (5) of the following programming items:
(a) Top Ten member page lists
(b) Homesteader contests
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(c) Homesteader (of the week)
(d) Community home page tours
(e) Newsletter
(f) Message board links (using AOL tools only, when
available)
(g) Chat links (using AOL tools only, when available)
(h) Homepage building recipes (how-to or quick steps)
(i) Clip art, animations, etc. to be used by Hometown AOL
user in building Member Page(s)
- The content within the Community Center will be updated on no
less than a weekly basis.
SCHEDULE OF EVENTS
- ICP will provide AOL with a schedule of events, which will
include a description of the content/theme for promotions and
events and the start dates of these promotions and events. The
schedule of events will cover no less than three months of
promotions and be provided prior to the execution of this
Agreement.
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EXHIBIT B -- DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
ADVERTISING REVENUES. Aggregate amounts collected plus the fair market value of
any other compensation received (such as barter advertising) by ICP or ICP's
agents, as the case may be, arising from the license or sale of AOL
Advertisements, less applicable Advertising Sales Commissions; provided that, in
order to ensure that AOL receives fair value in connection with AOL
Advertisements, ICP shall be deemed to have received no less than the
Advertising Minimum in instances when ICP makes an AOL Advertisement available
to a third party at a cost below the Advertising Minimum.
ADVERTISING MINIMUM. (i) [****] entries per month or (ii) such different rate or
rates as AOL may establish based upon market conditions and publish during the
Term.
ADVERTISING SALES COMMISSION. In the case of an AOL Advertisement, actual
amounts paid as commission to third party agencies in connection with sale of
the AOL Advertisement.
AFFILIATE. Any agent, distributor or franchisee of AOL, or an entity in which
AOL holds at least a nineteen percent (19%) equity interest.
AOL SERVICE. The narrow-band U.S. version of the America Online(R) brand
service, specifically excluding (a) XXX.xxx and any other AOL Interactive Site,
(b) the international versions of an America Online service (e.g., AOL Japan),
(c) the CompuServe(R) brand service and any other CompuServe products or
services, (d) Netscape Netcenter(TM) and any other Netscape(R) products or
services, (e) "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM),"
"Digital City(TM)," "NetMail(TM)," "Real Fans", "Love@AOL", "Entertainment
Asylum," "AOL Hometown" or any similar independent product, service or property
which may be offered by, through or with the U.S. version of the America
Online(R) brand service, (f) any programming or content area offered by or
through the U.S. version of the America Online(R) brand service over which AOL
does not exercise complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas), (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through the U.S. version of the America
Online(R) brand service, (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 service which is materially different from the
narrow-band U.S. version of the America Online brand service, by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded version of the service and any version distributed
through any broadband distribution platform or through any platform or device
other than a desktop personal computer.
XXX.xxx. AOL's primary Internet-based Interactive Site marketed under the
"XXX.XXX(TM)" 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(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)" 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, 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(R) 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(TM)" 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.
AOL HOMETOWN. AOL's interactive service, marketed under the "AOL Hometown" brand
available to users of the AOL Network and the World Wide Web portion of the
Internet through which such users may publish and maintain World Wide Web pages,
use community tools and engage in other interactive activities, specifically
excluding (a) the AOL Service and XXX.xxx, (b) any international versions of
such service and such site, (c) the CompuServe(R) brand service, Netscape
Netcenter, "ICQ," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)"
or any similar independent product or service offered by or through any other
AOL Interactive Site, (d) any programming or Content area offered by or through
such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas, such as, without limitation, partner community
center pages and Member Pages), (e) 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, (f) any property, feature, product
or service which AOL or its affiliates may acquire subsequent to the Effective
Date and (h) any other version of an America Online Interactive Site which is
materially different from AOL's primary interactive service marketed under the
"AOL Hometown" 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.
AOL PROPERTY. Any product, service or property owned, operated, marketed,
distributed, or authorized to be distributed by or through AOL or its
Affiliates, including, without limitation, the AOL Service, XXX.xxx, the
CompuServe Service, Netscape Netcenter and AOL Hometown.
AOL LOOK AND FEEL. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) within the
AOL Network and the total appearance and impression substantially formed by the
combination, coordination and interaction of these elements.
AOL MEMBER(S). Authorized users (including any sub-accounts under an authorized
master account) of the AOL Network.
AOL NETWORK. (i) The AOL Service, (ii) XXX.xxx, (iii) the CompuServe Service,
(iv) XxxxxXxxxx.xxx, (v) Netscape Netcenter and (vi) any other product or
service owned, operated, distributed or authorized to be distributed by or
through AOL or its Affiliates worldwide through which such party elects to offer
the ICP Internet Site, ICP Programming and/or Licensed Content (which may
include, without limitation, AOL-related Internet sites, "offline" information
browsing products, international versions of the AOL brand service, or
Compuserve) and (vii) any of the foregoing products and services authorized by
AOL or its Affiliates to be distributed through a third party, including on a
private label basis (including without limitation AOL's Custom Netcenter
product).
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.
COMPUSERVE SERVICE. The standard HTML version of the narrow-band U.S. version of
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (b) any web-based service including
"xxxxxxxxxx.xxx", "xxxxxx.xxx" and "xx.xxx", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g.,
third-party Content areas), (e) any yellow pages, white pages, classifieds or
other search, directory or review services or Content (f) any co-branded or
private label branded version of the U.S. version of the CompuServe brand
service, (g) any version of the U.S. version of the CompuServe brand service
which offers Content, distribution, services or functionality materially
different from the Content, distribution, services or functionality associated
with the standard, narrow-band U.S. version of the CompuServe brand service,
including, without limitation, any version of such service distributed through
any platform or device other than a desktop personal computer, (h) any property,
feature, product or service which CompuServe or its
---------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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affiliates may acquire subsequent to the Effective Date, (i) the America Online
brand service and any independent product or service which may be offered by,
through or with the U.S. version of the America Online brand service and (j) the
HMI versions of the CompuServe brand service.
XXXXXXXXXX.xxx. CompuServe's primary Internet-based Interactive Site marketed
under the "XxxxxXxxxx.xxx(TM)" brand, specifically excluding (a) the CompuServe
Service and AOL Service, (b) any international versions of such site, (c)
XXX.xxx, Netscape Netcenter, any other AOL or Netscape products or services or
interactive sites, (d) "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "NetMail(TM)" or any similar independent product or service
offered by or through such site or any other AOL or CompuServe 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, Content areas controlled by other parties and member-created Content
areas), (f) any programming or Content area offered by or through the U.S.
versions of the America Online(R) brand service or CompuServe 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 or
CompuServe 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 AOL or CompuServe Interactive Site which is materially
different from CompuServe's primary Internet-based Interactive Site marketed
under the "XxxxxXxxxx.xxx(TM)" 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.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of this Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "Confidential Information" shall not include information (a)
already lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, URLs, pointers, technology and
software.
ICP INTERACTIVE SITE. Any interactive site or area (other than ICP Programming),
including any mirrored site or area, which is managed, maintained or owned by
ICP or its agents or to which ICP provides and/or licenses information, content
or other materials, including, by way of example and without limitation, (i) an
ICP site on the World Wide Web portion of the Internet or (ii) a channel or area
delivered through a "push" product such as the Pointcast Network or interactive
environment such as Microsoft's proposed Active Desktop or interactive
television service such as WebTV.
ICP INTERNET SITE. Each of the versions of the Internet site and Content,
currently located at URL:xxxx://xxx.xxxxxxx.xxx and all related URLs, which are
customized for distribution through the AOL Network in accordance with this
Agreement.
ICP PRESENCE. Any (a) ICP trademark or logo, (b) headline or picture from ICP
Content, (c) teaser, icon, or link to the ICP Internet Site or ICP Programming
and/or (d) other Content which originates from, describes or promotes ICP or
ICP's Content.
ICP PROGRAMMING. Any (a) area within the AOL Network or outside the AOL Network
but exclusively available to AOL Members, which area is developed, programmed,
and/or managed by ICP, in whole or in part, pursuant to this Agreement and all
Content thereon (including, without limitation, message boards, chat and other
AOL Member-supplied content areas contained therein) including, without
limitation, the Online Area, the ICP Programming Space, any co-branded site or
page, the Community Centers, and (b) Content provided to AOL by ICP pursuant to
this Agreement for distribution on or through the AOL Network other than on the
ICP Internet Site (such as, without limitation, the Content programmed by ICP
into the promotional fields of the AOL Hometown Department Pages).
IMPRESSION. User exposure to an ICP Presence, as such exposure may be reasonably
determined and measured by AOL in accordance with its standard methodologies and
protocols.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an Internet service provider); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (or navigation thereto) (e.g., an online service or
search and directory service) and/or marketing a broad selection of products
and/or services across numerous interactive commerce categories (e.g., an online
mall or other leading online commerce site); (iii) a persistent desktop client;
or (iv) communications software capable of serving as the principal means
through which a user creates, sends or receives electronic mail or real time or
"instant" online messages (whether by telephone, computer or other means),
including without limitation, greeting cards.
KEYWORD(TM) SEARCH TERMS. The Keyword(TM) online search terms made available on
the AOL Service for use by AOL Members, combining AOL's Keyword(TM) online
search modifier with a term or phrase specifically related to ICP (and
determined in accordance with the terms of this Agreement).
LICENSED CONTENT. All Content provided by ICP or its agents through the ICP
Internet Site and/or the AOL Network in connection with the subject matter of
this Agreement, including without limitation all ICP Programming.
LINKED INTERACTIVE SITE. Any site or area outside of the AOL Network which is
linked to ICP Programming (through a "pointer" or similar link) subject to
approval by AOL in accordance with the terms and conditions of this Agreement.
LINKED ICP INTERACTIVE SITE. Any ICP Interactive Site which is also a Linked
Interactive Site.
MEMBER PAGE. Any web page created by an AOL Member through AOL Hometown and
using the community tools available therein.
NETSCAPE NETCENTER. Netscape Communications Corporation's primary Internet-based
Interactive Site marketed under the "Netscape Netcenter(TM)" brand, specifically
excluding (a) the AOL Service and the CompuServe Service, (b) XXX.xxx and
XxxxxXxxxx.xxx, (c) any international versions of such site, (d) "ICQ," "AOL
Netfind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)," "AOL Hometown," "My
News," "Digital City(TM)," 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, 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(R) brand service which was operated, maintained or controlled by
the former AOL Studios division (e.g., Electra), (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 AOL or Netscape
Communications Corporation Interactive Site which is materially different from
Netscape Communications Corporation's primary Internet-based Interactive Site
marketed under the "Netscape Netcenter(TM)" 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 (e.g. Custom NetCenters built specifically for third parties).
NON-PROGRAMMABLE SPACE. The portions of the ICP Programming Space screens that
are intended for the placement of AOL navigational elements (e.g., browser
frames, navigation bars and buttons), any AOL Look and Feel components and
brand-related Content, and any other Content not expressly included within the
definition of Programmable Space. AOL retains sole and exclusive control over
any Non-Programmable Space.
ONLINE AREA. The specific area within the AOL Network, as described in Exhibit
A, which shall be developed, managed or marketed by ICP pursuant to this
Agreement, including but not limited to the Licensed Content, message boards,
chat and other AOL Member-supplied content areas contained therein (but
excluding any Linked Interactive Sites other than sites which are exclusively
available to AOL Members).
PRODUCTS. Any product, good or service which ICP (or others acting on its behalf
or as distributors) offers, sells, provides, distributes or licenses to AOL
Members directly or indirectly through (i) the ICP Internet Site (including
through any Interactive Site linked thereto) or ICP Programming (including any
Linked Interactive Site), (ii) any other electronic means directed at AOL
Members (e.g., e-mail offers), or (iii) an "offline" means (e.g., toll-free
number)
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for receiving orders related to specific offers within the ICP Internet Site or
ICP Programming requiring purchasers to reference a specific promotional
identifier or tracking code, including, without limitation, products sold
through surcharged downloads (to the extent expressly permitted hereunder).
PROGRAMMABLE SPACE. The portions of the ICP Programming Space screens that are
intended solely for the placement of dynamic Content directly related to the
subject matter of the screen, promotion of registries, or any other
advertisements, promotions, sponsorships, links, pointers or similar services or
rights, specifically excluding any Non-Programmable Space.
TERM. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of this Agreement.
WEDDINGS-ONLY CONTENT PROVIDER. An entity solely in the business of providing
weddings-related Content or services.
WEDDINGS-ONLY CONTENT. Wedding-related Content provided by a Weddings-Only
Content Provider.
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EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
CONTENT. ICP represents and warrants that all Content contained within the ICP
Internet Site and ICP Programming and all Licensed Content (i) does and will
conform to AOL's applicable Terms of Service, the terms of this Agreement and
any other standard, written policy of AOL and any applicable AOL Property, (ii)
does not and will not infringe on or violate any copyright, trademark, U.S.
patent, rights of publicity, moral rights or any other third party right,
including without limitation, any music performance or other music related
rights, and (iii) does not and will not contain any Content which violates any
applicable law or regulation ((i), (ii) and (iii) collectively, the "Rules"). In
the event that AOL notifies ICP in writing that any such Content, as reasonably
determined by AOL, does not comply or adhere to the Rules, then ICP shall use
its best efforts to block access by AOL Members to such Content. In the event
that ICP cannot, through its best efforts, block access by AOL Members to such
Content in question, then ICP shall provide AOL prompt written notice of such
fact. AOL may then, at its option, either (i) restrict access from the AOL
Network to the Content in question using technology available to AOL or (ii) in
the event access cannot be restricted, direct ICP to remove any such Content.
ICP will cooperate with AOL's reasonable requests to the extent AOL elects to
implement any such access restrictions.
AOL NETWORK DISTRIBUTION. The distribution, placements and/or promotions
described in this Agreement or otherwise provided to ICP by AOL shall be used by
ICP solely for its own benefit, will link to and promote solely the Licensed
Content within the ICP Internet Site or ICP Programming expressly described on
Exhibit A and will not be resold, traded, exchanged, bartered, brokered or
otherwise offered or transferred to any third party or contain any branding
other than ICP's branding. Further, the Content of all such distribution,
placements and promotions shall be subject to AOL's policies relating to
advertising and promotion, including those relating to AOL's exclusivity
commitments and other contractual preferences to third parties.
CHANGES TO AOL PROPERTIES. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOL Service, AOL Hometown, XXX.xxx or any other AOL Property, including without
limitation, by adding or deleting channels, subchannels and/or screens. If AOL
eliminates or modifies an area on an AOL Property in a manner that substantially
modifies the nature of the distribution required under this Agreement in a
material adverse fashion, AOL will work with ICP in good faith to provide ICP,
as its sole remedy, with comparable distribution reasonably satisfactory to ICP.
MEMBER PAGE. AOL will have no obligation with respect to the Content and
services available on or through any Member Page including, but not limited to,
any duty to review or monitor any such Content and services. AOL expressly
disclaims any liability to ICP for the Content and services contained in any
Member Page or any expense, claim, demand, costs, loss or damage arising out of
any use of the ICP-provided Content available from, without limitation, a
Community Center or the ICP Internet Site. ICP agrees to release AOL and its
affiliates, including partners, directors, officers, employees and agents from
any and all claims, rights and recourses for such loss or damage.
CONTESTS. ICP shall ensure that any contest, sweepstakes or similar promotion
conducted or promoted through the ICP Internet Site and/or ICP Programming (a
"Contest") complies with all applicable laws and regulations. Upon AOL's
request, ICP shall provide AOL with an opinion from ICP's counsel confirming
that the Contest complies with all applicable federal, state and local laws and
regulations. All contests shall comply with AOL's standard policies regarding
contests and ICP shall request updates of such policies prior to conducting or
promoting a Contest.
DISCLAIMERS. Upon AOL's request, AOL agrees to include within the ICP Internet
and/or ICP Programming a disclaimer (the specific form and substance to be
mutually agreed upon by the Parties) indicating that all Content (including any
products and services) is provided solely by ICP and not AOL, and any
transactions are solely between ICP and AOL Members using or purchasing such
Content and AOL is not responsible for any loss, expense or damage arising out
of the Licensed Content or services provided through the ICP Internet Site or
ICP Programming (e.g., "In no event shall AOL nor any of its agents, employees,
representatives or affiliates be in any respect legally liable to you or any
third party in connection with any information or services contained herein and
AOL makes no warranty or guaranty as to the accuracy, completeness, correctness,
timeliness, or usefulness of any of the information contained herein"). ICP
shall not in any manner state or imply that AOL recommends or endorses ICP or
its Content.
REWARDS PROGRAMS. [****], ICP shall not offer, provide, implement or otherwise
make available in ICP Programming, or on any page of the ICP Internet Site
directly linked to from the AOL Network, any promotional programs or plans that
are intended to provide customers with rewards or benefits in exchange for, or
on account of, their past or continued loyalty to, or patronage or purchase of,
the products or services of ICP or any third party (e.g., a promotional program
similar to a "frequent flier" program), unless such promotional program or plan
is provided exclusively through AOL's "AOL Rewards" program, accessible on the
AOL Service at Keyword: "AOL Rewards." In addition, ICP shall promote the AOL
Rewards program with equal prominence [****] in any Promotions within ICP
Programming or the AOL Network.
NAVIGATION. In cases where an AOL Member performs a search for ICP through any
search or navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., promotions, Keyword Search Terms, or any other
navigational tools), AOL shall have the right to direct such AOL Member to the
ICP Internet Site, or any other ICP Interactive Site determined by AOL in its
reasonable discretion.
AOL LOOK AND FEEL. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the ICP Internet Site or ICP Programming (the "AOL Frames"). AOL may, at
its discretion, incorporate navigational icons, links and pointers or other
Content into such AOL Frames.
OPERATIONS. AOL shall be entitled to require reasonable changes to the ICP
Internet Site and ICP Programming to the extent such site will, in AOL's good
faith judgment, adversely affect operations of the AOL Network.
CLASSIFIEDS. ICP shall not implement or promote any classifieds listing features
through ICP Programming without AOL's prior written approval. Such approval may
be conditioned upon, among other things, ICP's conformance with any
then-applicable service-wide technical or other standards related to online
classifieds.
MESSAGE BOARDS; CHAT ROOMS AND COMPARABLE VEHICLES. Any Content submitted by ICP
or its agents within message boards, chat rooms or any comparable vehicles will
be subject to the license grant relating to submissions to "public areas" set
forth in the AOL Terms of Service. ICP acknowledges that it has no rights or
interest in AOL Member submissions to message boards, chat rooms or any other
vehicles through which AOL Members may make submissions within the AOL Network.
ICP will refrain from editing, deleting or altering, without AOL's prior
approval, any opinion expressed or submission made by an AOL Member within ICP
Programming except in cases where ICP has a good faith belief that the Content
in question violates an applicable law, regulation, third party right or the
applicable AOL Property's Terms of Service.
DUTY TO INFORM. ICP shall promptly inform AOL of any information related to the
ICP Internet Site, ICP Programming or the Licensed Content which could
reasonably lead to a claim, demand or liability of or against AOL and/or its
Affiliates by any third party.
RESPONSE TO QUESTIONS/COMMENTS; CUSTOMER SERVICE. ICP shall respond promptly and
professionally to questions, comments, complaints and other reasonable requests
regarding the ICP Internet Site, ICP Programming or the Licensed Content by AOL
Members or on request by AOL, and shall cooperate and assist AOL in promptly
answering the same. ICP shall have sole responsibility for customer service
(including, without limitation, order processing, billing, shipping, etc.) and
AOL shall have no responsibility with respect thereto. ICP shall comply with all
applicable requirements of any federal, state or local consumer protection or
disclosure law.
STATEMENTS THROUGH AOL NETWORK. ICP shall not make, publish, or otherwise
communicate through the AOL Network any deleterious remarks concerning AOL or
its Affiliates, directors, officers, employees, or agents (including, without
limitation, AOL's business projects, business capabilities, performance of
duties and services, or financial position) which remarks are based on the
relationship established by this Agreement or information exchanged hereunder.
This section is not intended to limit good faith editorial statements made by
ICP based upon publicly available information, or information developed by ICP
independent of its relationship with AOL and its employees and agents.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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PRODUCTION WORK. In the event that ICP requests any AOL production assistance,
ICP shall work with AOL to develop detailed production plans for the requested
production assistance (the "Production Plan"). Following receipt of the final
Production Plan, AOL shall notify ICP of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for the
requested production work and (iii) the estimated development schedule for such
work. To the extent the Parties reach agreement regarding implementation of
agreed-upon Production Plan, such agreement shall be reflected in a separate
work order signed by the Parties. All fees to be paid to AOL for any such
production work shall be paid in advance. To the extent ICP elects to retain a
third party provider to perform any such production work, work produced by such
third party provider must generally conform to AOL's production standards
available at Keyword "Styleguide." The specific production resources which AOL
allocates to any production work to be performed on behalf of ICP shall be as
determined by AOL in its sole discretion.
PUBLISHING TOOLS. AOL shall make available to ICP any proprietary publishing
tools of AOL that are generally available to third parties and necessary for ICP
to produce and refresh the Online Area during the Term (each a "Tool"). ICP
shall be granted a nonexclusive license to use any such Tool, which license
shall be subject to: (i) ICP's compliance with all rules and regulations
relating to use of the Tools, as published from time to time by AOL, (ii) AOL's
right to withdraw or modify such license at any time, and (iii) ICP's express
recognition that AOL provides all Tools on an "as is" basis, without warranties
of any kind.
TRAINING AND SUPPORT. AOL shall make available to ICP standard AOL training and
support programs necessary to produce any AOL areas hereunder. ICP can select
its training and support program from the options then offered by AOL. ICP shall
be responsible to pay the fees associated with its chosen training and support
package. In addition, ICP will pay travel and lodging costs associated with its
participation in any AOL training programs (including AOL's travel and lodging
costs when training is conducted at ICP's offices).
ACCOUNTS. ICP shall receive up to [****] accounts on the AOL Service for the
exclusive purpose of enabling it and its agents to perform ICP's duties under
this Agreement. In the event there is any abuse of any account granted
hereunder, AOL reserves the right to terminate such account upon written
notification to ICP. ICP will be responsible for the actions taken under or
through its accounts, which actions are subject to AOL's applicable Terms of
Service. The accounts shall be of the type determined by AOL to be necessary for
ICP to perform its duties hereunder and ICP shall be responsible for all charges
associated with such accounts, including any surcharges, including, without
limitation, all premium charges, transaction charges, and any applicable
communication surcharges incurred by any account issued to ICP; provided,
however, that ICP shall not be charged for AOL's standard monthly usage fees and
standard hourly charges. Upon the termination of this Agreement, all accounts,
related screen names and any associated usage credits or similar rights, will
automatically terminate unless ICP notifies AOL in writing, upon termination of
this Agreement, that it elects to have some or all of the accounts granted
hereunder converted to paying general accounts. AOL will have no liability for
loss of any data or content related to the proper termination of any account.
LAUNCH DATE. In the event that any terms contained herein relate to or depend on
the launch date of the ICP Internet Site or other property contemplated by this
Agreement, which launch date is later than the Effective Date, then it is the
intention of the Parties to record such launch date in a written instrument
signed by both Parties promptly following such launch date; provided that, in
the absence of such a written instrument, the launch date shall be as reasonably
determined by AOL based on the information available to AOL.
KEYWORDS. Any Keyword Search Terms to be directed to the ICP Internet Site shall
be (i) subject to availability for use by ICP and (ii) limited to the
combination of the Keyword(TM) search modifier combined with a registered
trademark of ICP. AOL reserves the right to revoke at any time ICP's use of any
Keyword Search Terms which do not incorporate registered trademarks of ICP. ICP
acknowledges that its utilization of a Keyword Search Term will not create in
it, nor will it represent it has, any right, title or interest in or to such
Keyword Search Term, other than the right, title and interest ICP holds in ICP's
registered trademark independent of the Keyword Search Term. Without limiting
the generality of the foregoing, ICP will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword Search Term;
or (b) use the Keyword Search Term, except for the purposes expressly required
or permitted under this Agreement. This Section shall survive the completion,
expiration, termination or cancellation of this Agreement.
II. TRADEMARKS
TRADEMARK LICENSE. In designing and implementing any marketing, advertising, or
other promotional materials (expressly excluding Press Releases) related to this
Agreement and/or referencing the other Party and/or its trade names, trademarks
and service marks (the "Promotional Materials") and subject to the other
provisions contained herein, ICP shall be entitled to use the following trade
names, trademarks and service marks of AOL: the "America Online(R)" brand
service, "AOL(TM)" service/software and AOL's triangle logo and, in connection
therewith, ICP shall comply with the AOL styleguide available at keyword: "style
guide"; and AOL and its Affiliates shall be entitled to use the trade names,
trademarks and service marks of ICP (collectively, together with the AOL marks
listed above, the "Marks"); provided that each Party: (i) does not create a
unitary composite xxxx involving a Xxxx of the other Party without the prior
written approval of such other Party and (ii) displays symbols and notices
clearly and sufficiently indicating the trademark status and ownership of the
other Party's Marks in accordance with applicable trademark law and practice.
This Section shall survive the completion, expiration, termination or
cancellation of this Agreement.
RIGHTS. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
QUALITY STANDARDS. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
PROMOTIONAL MATERIALS. Each Party will submit to the other Party, for its prior
written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after initial public announcement
of the business relationship between the Parties in accordance with the approval
and other requirements contained herein, either Party's subsequent factual
reference in Promotional Materials to the existence of a business relationship
between AOL and ICP, including, without limitation, the availability of the
Licensed Content through the AOL Network, or use of screen shots relating to the
distribution under this Agreement (so long as the AOL Network is clearly
identified as the source of such screen shots) for promotional purposes shall
not require the approval of the other Party. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the distribution of the Licensed Content through the AOL Network and reused for
such purpose until such approval is withdrawn with reasonable prior notice. In
the event such approval is withdrawn, existing inventories of Promotional
Materials may be depleted.
INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) such Party's
Promotional Materials will neither infringe on any copyright, U.S. patent or any
other third party right nor violate any applicable law or regulation and (v)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
Party, other than to its employees, or to its other agents who must have access
to such Confidential Information for such Party to perform its obligations
hereunder, who will each
---------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
27
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agree to comply with this section. Notwithstanding the foregoing, either Party
may issue a press release or other disclosure containing Confidential
Information without the consent of the other Party, to the extent such
disclosure is required by law, rule, regulation or government or court order. In
such event, the disclosing Party will provide at least five (5) business days
prior written notice of such proposed disclosure to the other Party. Further, in
the event such disclosure is required of either Party under the laws, rules or
regulations of the Securities and Exchange Commission or any other applicable
governing body, such Party will (i) redact mutually agreed-upon portions of this
Agreement to the fullest extent permitted under applicable laws, rules and
regulations and (ii) submit a request to such governing body that such portions
and other provisions of this Agreement receive confidential treatment under the
laws, rules and regulations of the Securities and Exchange Commission or
otherwise be held in the strictest confidence to the fullest extent permitted
under the laws, rules or regulations of any other applicable governing body.
V. RELATIONSHIP WITH AOL MEMBERS
SOLICITATION OF SUBSCRIBERS. (a) During the term of this Agreement and for a two
year period thereafter, ICP will not use the AOL Network (including, without
limitation, the e-mail network contained therein) to solicit AOL Members on
behalf of another Interactive Service. More generally, ICP will not send
unsolicited, commercial e-mail (i.e., "spam") or other online communications
through or into AOL's products or services, absent a Prior Business
Relationship. For purposes of this Agreement, a "Prior Business Relationship"
will mean that the AOL Member to whom commercial e-mail or other online
communication is being sent has voluntarily either (i) engaged in a transaction
with ICP or (ii) provided information to ICP through a contest, registration, or
other communication, which included clear notice to the AOL Member that the
information provided could result in commercial e-mail or other online
communications being sent to that AOL Member by ICP or its agents. Any
commercial e-mail or other online communications to AOL Members which are
otherwise permitted hereunder will (a) include a prominent and easy means to
"opt-out" of receiving any future commercial e-mail communications from ICP and
(b) shall also be subject to AOL's then-standard restrictions on distribution of
bulk e-mail (e.g., related to the time and manner in which such e-mail can be
distributed through or into the AOL product or service in question).
(b) ICP shall ensure that its collection, use and disclosure of information
obtained from AOL Members under this Agreement ("Member Information") complies
with (i) all applicable laws and regulations and (ii) AOL's standard privacy
policies, available on the AOL Service at the keyword term "Privacy" (or, in the
case of the ICP Internet Site, ICP's standard privacy policies so long as such
policies are prominently published on the site and provide adequate notice,
disclosure and choice to users regarding ICP's collection, use and disclosure of
user information). ICP will not disclose Member Information collected hereunder
to any third party in a manner that identifies AOL Members as end users of an
AOL product or service or use Member Information collected under this Agreement
to market another Interactive Service.
EMAIL NEWSLETTERS. Any email newsletters sent to AOL Members by ICP or its
agents shall (i) be subject to AOL's policies on use of the email functionality,
including but not limited to AOL's policy on unsolicited bulk email, (ii) be
sent only to AOL Members requesting to receive such newsletters, (iii) not
contain Content which violates AOL's Terms of Service, and (iv) not contain any
advertisements, marketing or promotion for any other Interactive Service.
AOL MEMBER COMMUNICATIONS. To the extent ICP is otherwise permitted to send
communications to AOL Members (in accordance with the other requirements
contained herein): in any such communications to AOL Members on or off the ICP
Internet Site (including, without limitation, e-mail solicitations), ICP will
limit the subject matter of such communications to those categories of products,
services and/or content that are specifically contemplated by this Agreement and
will not encourage AOL Members to take any action inconsistent with the scope
and purpose of this Agreement, including without limitation, the following
actions: (i) using an Interactive Site other than the ICP Internet Site for the
purchase of Products, (ii) using Content other than the Licensed Content; (iii)
bookmarking of Interactive Sites; or (iv) changing the default home page on the
AOL browser. Additionally, with respect to such AOL Member communications, in
the event that ICP encourages an AOL Member to purchase products through such
communications, ICP shall ensure that (a) the AOL Network is expressly promoted
as the primary means through which the AOL Member can access the ICP Internet
Site (including without limitation by stating the applicable Keyword Search Term
and including direct links to specific offers within the ICP Internet Site) and
(b) any link to the ICP Internet Site will link to a page which indicates to the
AOL Member that such user is in a site which is affiliated with the AOL Network.
VI. TREATMENT OF CLAIMS
LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE AOL
NETWORK OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY,
"DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE TO THE OTHER
PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE
SUBJECT TO INDEMNIFICATION BELOW. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY"
SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE
AGGREGATE AMOUNTS PAYABLE HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE
TO SUCH LIABILITY OCCURRED; PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE
PROVISIONS OF THIS AGREEMENT.
NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK, OR
ANY AOL PUBLISHING TOOLS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY
OF AOL NETWORK OR THE ICP INTERNET SITE.
INDEMNITY. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("Liabilities"), resulting from the indemnifying Party's material breach of any
duty, representation, or warranty of this Agreement. In addition, ICP will
defend, indemnify, save and hold harmless AOL and AOL's officers, directors,
agents, affiliates, distributors, franchisees and employees from any and all
Liabilities arising out of or in any way related to the Licensed Content.
If a Party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "Action"), the Indemnified Party
shall give the other Party (the "Indemnifying Party") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party shall have a period of ten (10) days
after delivery of such notice to respond. If the Indemnifying Party elects to
defend the Action or does not respond within the requisite ten (10) day period,
the Indemnifying Party shall be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party. The
Indemnified Party shall cooperate, at the expense of the Indemnifying Party,
with the Indemnifying Party and its counsel in the defense and the Indemnified
Party shall have the right to participate fully, at its own expense, in the
defense of such Action. If the Indemnifying Party responds within the required
ten (10) day period and elects not to defend such Action, the Indemnified Party
shall be free, without prejudice to any of the Indemnified Party's rights
hereunder, to compromise or defend (and control the defense of) such Action. In
such case, the Indemnifying Party shall cooperate, at its own expense, with the
Indemnified Party and its counsel in the defense against such Action and the
Indemnifying Party shall have the right to participate fully, at its own
expense, in the defense of such Action. Any compromise or settlement of an
Action shall require the prior written consent of both Parties hereunder, such
consent not to be unreasonably withheld or delayed.
ACKNOWLEDGMENT. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER
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ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable efforts
to promptly resolve any claim, dispute, claim, controversy or disagreement (each
a "Dispute") between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the transactions
contemplated hereby. If the Parties cannot resolve the Dispute within such
timeframe, the Dispute shall be submitted to the Management Committee for
resolution. For ten (10) days after the Dispute was submitted to the Management
Committee, the Management Committee shall have the exclusive right to resolve
such Dispute; provided further that the Management Committee shall have the
final and exclusive right to resolve Disputes arising from any provision of this
Agreement which expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms. If the Management Committee is unable to amicably
resolve the Dispute during the ten (10) day period, then the Management
Committee will consider in good faith the possibility of retaining a third party
mediator to facilitate resolution of the Dispute. In the event the Management
Committee elects not to retain a mediator, the Dispute will be subject to the
resolution mechanisms described below. "Management Committee" shall mean a
committee made up of a senior executive from each of the Parties for the purpose
of resolving Disputes under this Section and generally overseeing the
relationship between the Parties contemplated by this Agreement. Neither Party
shall seek, nor shall be entitled to seek, binding outside resolution of the
Dispute unless and until the Parties have been unable to amicably resolve the
dispute as set forth in this paragraph (a) and then, only in compliance with the
procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights, including
but not limited to intellectual property and confidentiality, and (ii) any
provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms (which shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
in paragraph (a), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
name an arbitrator within ten (10) days after the delivery of the Demand. The
two arbitrators named by the Parties may have prior relationships with the
naming Party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, shall be a neutral
participant, with no prior working relationship with either Party. If the two
arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
toto. The arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages only.
Any award by the arbitrators shall be accompanied by a written opinion setting
forth the findings of fact and conclusions of law relied upon in reaching the
decision. The award rendered by the arbitrators shall be final, binding and
non-appealable, and judgment upon such award may be entered by any court of
competent jurisdiction. The Parties agree that the existence, conduct and
content of any arbitration shall be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of witnesses
and all other expenses and costs in connection with the presentation of such
Party's case (collectively, "Attorneys' Fees"). The remaining costs of the
arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award Attorneys'
Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively,
"Non-Arbitration Claims") shall be brought in a court of competent jurisdiction
in the Commonwealth of Virginia. Each Party irrevocably consents to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts situated in the Commonwealth of Virginia, over any and all
Non-Arbitration Claims and any and all actions to enforce such claims or to
recover damages or other relief in connection with such claims or to enforce a
judgment rendered in an arbitration proceeding.
VIII. MISCELLANEOUS
AUDITING RIGHTS. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, AOL shall have the right, at its expense, to
conduct a reasonable and necessary copying and inspection of portions of the
Records of ICP that are directly related to amounts payable to AOL pursuant to
this Agreement, which right may, at AOL's option, be exercised by directing an
independent certified public accounting firm to conduct such inspection. For the
sole purpose of ensuring compliance with this Agreement, ICP shall have the
right, at its expense, to direct an independent certified public accounting firm
subject to strict confidentiality restrictions to conduct a reasonable and
necessary copying and inspection of portions of the Records of AOL that are
directly related to amounts payable to ICP pursuant to this Agreement. Any such
audit may be conducted after twenty (20) business days prior written notice,
subject to the following. Such audits shall not be made more frequently than
once every twelve months. No such audit of AOL shall occur during the period
beginning on June 1 and ending October 1. In lieu of providing access to its
Records as described above, AOL shall be entitled to provide ICP with a report
from an independent certified public accounting firm confirming the information
to be derived from such Records.
EXCUSE. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname "AOLNotice" in
the case of AOL) or by confirmed facsimile; (ii) on the delivery date if
delivered personally to the Party to whom the same is directed; (iii) one
business day after deposit with a commercial overnight carrier, with written
verification of receipt; or (iv) five business days after the mailing date,
whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (fax no.
000-000-0000) and the Deputy General Counsel (fax no. 000-000-0000), each at the
address of AOL set forth in the first paragraph of this Agreement. In the case
of ICP, except as otherwise specified herein, the notice address shall be the
address for ICP set forth in the first paragraph of this Agreement, with the
other relevant notice information, including the recipient for
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notice and, as applicable, such recipient's fax number or AOL e-mail address, to
be as reasonably identified by AOL.
NO WAIVER. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
RETURN OF INFORMATION. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential information,
documents, manuals and other materials specified by the other Party.
SURVIVAL. Sections IV, V, VI, VII and VIII of this Exhibit C, shall survive the
completion, expiration, termination or cancellation of this Agreement. In
addition, all payment terms of this Agreement and any provision which, by its
nature, must survive the completion, expiration, termination or cancellation of
this Agreement, shall survive the completion, expiration, termination or
cancellation of this Agreement.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
AMENDMENT. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
FURTHER ASSURANCES. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.
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 resulting in
control of ICP by an Interactive Service 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.
SUBCONTRACTORS. To the extent ICP utilizes consultants or subcontractors to
perform a material portion of its obligations under this Agreement, such
consultants and/or subcontractors shall be subject to AOL's prior written
approval and ICP shall provide AOL with direct contact information for the
employees of such consultants and/or subcontractors who are responsible for
performing such obligations, which employees shall be available during business
hours for consultation with AOL.
CONSTRUCTION; SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
REMEDIES. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
APPLICABLE LAW; JURISDICTION. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles.
EXPORT CONTROLS. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
HEADINGS. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
COUNTERPARTS. This Agreement 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.
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EXHIBIT D
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS
Pursuant to Section 3.2 of the Anchor Tenant Agreement between ______________
("ICP") and America Online, Inc. ("AOL"), dated as of _________________, 1999
(the "Agreement"), the following report is delivered to AOL for the period
beginning _____________ and ending __________ (the "Period"):
I. PROMOTIONAL COMMITMENTS
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Period:
TYPE OF PROMOTION DATE(S) OF DURATION/CIRCULATION OF PROMOTION RELEVANT CONTRACT
PROMOTION SECTION
_______ _______________________ ___________________ __________________________________ ______________________
1.
_______ _______________________ ___________________ __________________________________ ______________________
2.
_______ _______________________ ___________________ __________________________________ ______________________
3.
_______ _______________________ ___________________ __________________________________ ______________________
IN WITNESS WHEREOF, this Certificate has been executed this ___ day of
___________, 199_.
______________________________________
By: __________________________________
Print Name: _________________________
Title: _______________________________
Date: ________________________________
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EXHIBIT E
PROMOTIONS
INTERACTIVE SITE. Within each ICP Interactive Site, ICP shall include the
following (collectively, the "AOL Promos"): a prominent "Try AOL" feature (at
least 90 x 30 pixels or 70 x 70 pixels in size) appearing prominently on the
first screen of the ICP Interactive Site through which users can obtain
promotional information about AOL products or services designated by AOL and, at
AOL's option, download or order the then-current version of client software for
such AOL products or services. AOL will provide the creative content to be used
in the AOL Promos. ICP shall post (or update, as the case may be) the creative
content supplied by AOL within the spaces for the AOL Promos within five days of
its receipt of such content from AOL. Without limiting any other reporting
obligations of the Parties contained herein, ICP shall provide AOL with monthly
written reports specifying the number of impressions to the pages containing the
AOL Promos during the prior month. In the event that AOL elects to serve the AOL
Promos to the ICP Interactive Site from an ad server controlled by AOL or its
agent, ICP shall take all reasonable operational steps necessary to facilitate
such ad serving arrangement, including, without limitation, inserting HTML code
designated by AOL on the pages of the ICP Interactive Site on which the AOL
Promos will appear. In addition, within each ICP Interactive Site, ICP shall
provide prominent promotion for the keywords associated with the Online Area and
the ICP Internet Site and links from the ICP Interactive Site to the relevant
topic areas on AOL's XXX.xxx site, and to the extent ICP offers or promotes any
products or services similar to AOL's Instant Messenger or Internet search
products, ICP shall provide equal or greater promotions for such AOL products.
OTHER MEDIA. In ICP's television, radio, print and "out of home" (e.g., buses
and billboards, point of purchase and other "place-based" promotions)
advertisements and in any publications, programs, features or other forms of
media over which ICP exercises at least partial editorial control, ICP will
include specific references or mentions (orally where possible) of the
availability of the ICP Internet Site through the America Online(R) brand
service. In any event, such references or mentions shall be at least as
prominent as any references that ICP makes to any ICP Interactive Site (by way
of site name, related company name, URL or otherwise). Without limiting the
generality of the foregoing, ICP's listing of the "URL" for any ICP Interactive
Site will be accompanied by an equally prominent listing of the "keyword" term
on AOL for the Online Area and ICP Internet Site and the AOL keyword "Weddings",
which listings shall conform to the keyword guidelines attached hereto as
Exhibit J. All such references or mentions of AOL, and the use of AOL's
trademarks, trade names and service marks in connection therewith, shall be in
accordance with Section II of Exhibit C.
PREFERRED ACCESS PROVIDER. In ICP's promotion of AOL, AOL shall be generally
positioned as the preferred access provider through which a user can access the
ICP Internet Site (and ICP shall not implement or authorize any other promotions
on behalf of any third parties which are inconsistent with the foregoing). AOL
shall be the only Interactive Service promoted or advertised by ICP in any
offline medium. In addition, ICP shall promote AOL Hometown as prominently as it
promotes its own homesteading product, including, without limitation, by
including a link from the Online Area to the main page of the Weddings
department in AOL Hometown and links from the ICP Internet Site to mutually
agreed upon areas within AOL Hometown.
DCI PROMOTIONS. Provided AOL is providing the carriage on the "Wedding Guide"
area of the Digital City Content area of the AOL Service as described on subpart
(c) of section A of Exhibit A-1, ICP shall provide AOL with permanent placement
in the pull-down menu of the Online Area to promote AOL's Digital City service
and rotational placements within the ICP Internet Site (collectively, the "DCI
Promotions").
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EXHIBIT F
OPERATING STANDARDS
1. ICP Internet Site Infrastructure. ICP will be responsible for all
communications, hosting and connectivity costs and expenses associated with
the ICP Internet Site. ICP will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet traffic
demands on the ICP Internet Site from the AOL Network. ICP will design and
implement the network between the AOL Service and ICP Internet Site such
that (i) no single component failure will have a materially adverse impact
on AOL Members seeking to reach the ICP Internet Site from the AOL Network
and (ii) no single line under ICP's reasonable control will run at more
than 70% average utilization for a 5-minute peak in a daily period. In this
regard, ICP will provide AOL, upon request, with a detailed network diagram
regarding the architecture and network infrastructure supporting the ICP
Internet Site. In the event that ICP elects to create a custom version of
the ICP Internet Site in order to comply with the terms of this Agreement,
ICP will bear responsibility for all aspects of the implementation,
management and cost of such customized site.
2. Optimization; Speed. ICP will use commercially reasonable efforts to ensure
that: (a) the functionality and features within the ICP Internet Site are
optimized for the client software then in use by AOL Members; and (b) the
ICP Internet Site is designed and populated in a manner that minimizes
delays when AOL Members attempt to access such site. At a minimum, ICP will
ensure that the ICP Internet Site's data transfers initiate within fewer
than fifteen (15) seconds on average. Prior to commercial launch of any
material promotions described herein, ICP will permit AOL to conduct
performance and load testing of the ICP Internet Site (in person or through
remote communications), with such commercial launch not to commence until
such time as AOL is reasonably satisfied with the results of any such
testing.
3. Technical Problems. ICP agrees to use commercially reasonable efforts to
address material technical problems (over which ICP exercises control)
affecting use by AOL Members of the ICP Internet Site (an "ICP Technical
Problem") promptly following notice thereof. In the event that ICP is unable
to promptly resolve an ICP Technical Problem following notice thereof from
AOL (including, without limitation, infrastructure deficiencies producing
user delays), AOL will have the right to regulate the promotions it provides
to ICP hereunder until such time as ICP corrects the ICP Technical Problem
at issue.
4. Monitoring. ICP will ensure that the performance and availability of the ICP
Internet Site is monitored on a continuous (24 X 7) basis. ICP will provide
AOL with contact information (including e-mail, phone, pager and fax
information, as applicable, for both during and after business hours) for
ICP's principal business and technical representatives, for use in cases
when issues or problems arise with respect to the ICP Internet Site.
5. Security. ICP will utilize Internet standard encryption technologies (e.g.,
Secure Socket Layer - SSL) to provide a secure environment for conducting
transactions and/or transferring private member information (e.g. credit
card numbers, banking/financial information, and member address information)
to and from the ICP Internet Site. ICP will facilitate periodic reviews of
the ICP Internet Site by AOL in order to evaluate the security risks of such
site. ICP will promptly remedy any security risks or breaches of security as
may be identified by AOL's Operations Security team.
6. Technical Performance.
i. ICP will design the ICP Internet Site to support the AOL-Client embedded
versions of the Microsoft Internet Explorer 3.XX and 4.XX browsers
(Windows and Macintosh), the Netscape Browser 4.XX and make commercially
reasonable efforts to support all other AOL browsers listed at:
"xxxx://xxxxxxxxx.xxxx.xxx.xxx."
ii. To the extent ICP creates customized pages on the ICP Internet Site for
AOL Members, ICP develop and employ a methodology to detect AOL Members
(e.g., examine the HTTP User-Agent field in order to identify the "AOL
Member-Agents" listed at: xxxx://xxxxxxxxx. xxxx.xxx.xxx" and referenced
under the heading "Browser Detection."
iii.ICP will periodically review the technical information made available
by AOL at xxxx://xxxxxxxxx.xxxx.xxx.xxx.
iv. ICP will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 and to adhere to AOL's parameters for refreshing or
preventing the caching of information in AOL's proxy system as outlined
in the document provided at the following URL:
xxxx://xxxxxxxxx.xxxx.xxx.xxx. ICP is responsible for the manipulation
of these parameters in web based objects so as allow them to be cached
or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features through the
ICP Internet Site ("New Functionality"), ICP will use commercially
reasonable efforts to either (i) test the New Functionality to confirm
its compatibility with AOL Service client software and (ii) provide AOL
with written notice of the New Functionality so that AOL can perform
tests of the New Functionality to confirm its compatibility with the AOL
Service client software. Should any new material, new functionality or
features through the ICP Internet Site be released without notification
to AOL, AOL will not be responsible for any adverse member
experience until such time that compatibility tests can be performed and
the new material, functionality
or features qualified for the AOL Service.
7. AOL Internet Services Partner Support. AOL will provide ICP with access to
the standard online resources, standards and guidelines documentation,
technical phone support, monitoring and after-hours assistance that AOL
makes generally available to similarly situated web-based partners. AOL
support will not, in any case, be involved with content creation on behalf
of ICP or support for any technologies, databases, software or other
applications which are not supported by AOL or are related to any ICP area
other than the ICP Internet Site. Support to be provided by AOL is
contingent on ICP providing to AOL demo account information (where
applicable), a detailed description of the ICP Internet Site's software,
hardware and network architecture and access to the ICP Internet Site for
purposes of such performance and the coordination load testing as AOL elects
to conduct.
8. ICP Programming. The terms and conditions of this Exhibit applicable to the
ICP Internet Site shall apply equally to any ICP Programming that is (a)
programmed in HTML or (b) web-based.
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EXHIBIT G
ADDITIONAL KEYWORDS
888WEDKNOT
BIGDAY-BEAUTY
BRIDEZILLA
DIAMONDGUY
GREATESCAPE
HONEYMOONMAGAZINE
KNOT
KNOTMARCY
KNOTREG
KNOTREGISTRY
MYKNOT
OURKNOT
THEKNOT
THEKNOTGOWNGUIDE
THEKNOTGOWNSEARCH
THEKNOTREGISTRY
THEKNOTTRAVELAUCTION
TIE THE KNOT
WEDDINGPHOTOGRAPHERS
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EXHIBIT H
ICP COMPETITORS
[****]
---------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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[****]
---------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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EXHIBIT I
PRODUCTS
[****]
---------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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---------------
[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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EXHIBIT J
KEYWORD GUIDELINES
PRINT/GRAPHIC
- Preferred listing: (AOL Logo appears) America Online Keyword: Knot
America Online Keyword: Knot
- If necessary, due to space constraints, listing may (pending approval)
appear as follows:
AOL KEYWORD: KNOT
- Every effort should be made to have 'America Online' spelled out
- Capitalization - listing should appear in initial caps only
Note: When America Online is abbreviated to AOL - AOL must appear in
all caps.
K of Keyword must always be capitalized
- Font, Font style and Size must all be consistent
- Listing size must be of equal prominence to that of any/all other URLs
featured
BROADCAST/RADIO
- America Online Keyword must announced entirely (even if an accompanying
graphic is set with AOL versus America Online)
Example voiceover would read:
"For more information, please visit America Online Keyword: Knot"
AOL must approve all other uses prior to usage.
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EXHIBIT K
CONFIDENTIAL
WARRANT AGREEMENT
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. NO SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY
OR WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT.
THIS WARRANT MAY NOT BE EXERCISED EXCEPT IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL AND STATE SECURITIES LAWS TO THE REASONABLE SATISFACTION OF THE COMPANY
AND LEGAL COUNSEL FOR THE COMPANY.
WARRANT TO PURCHASE
366,667 SHARES OF COMMON STOCK
OF
THE KNOT, INC.
A DELAWARE CORPORATION
ISSUED
JULY 23, 1999
THIS CERTIFIES THAT, for value received, America Online, Inc. (as the
context requires, "AOL" or the "WARRANTHOLDER") is entitled to purchase, on the
terms hereof, 366,667 shares (subject to adjustment as set forth herein,
"WARRANT STOCK"), of common stock, par value $.01 per share ("COMMON STOCK"), of
The Knot, Inc., a Delaware corporation (the "COMPANY"), at a purchase price and
upon the terms and conditions as set forth herein. The Company hereby represents
and warrants to Warrantholder that as of the date hereof, (i) the capitalization
of the Company is as set forth in the capitalization table attached hereto as
Schedule A, and (ii) the Warrant Stock constitutes two and one-half percent
(2.5%) of the number of shares of voting capital stock of the Company
outstanding as of the date hereof, after giving effect to the exercise, exchange
or conversion of all outstanding securities, rights, options, warrants
(including this Warrant), calls, commitments or agreements of any nature or
character (whether debt or equity) that are, directly or indirectly, exercisable
or exchangeable for, or convertible into or otherwise represent the right to
purchase or otherwise receive, directly or indirectly, any such capital stock or
other arrangement to acquire at any time or under any circumstance, voting
capital stock of the Company or any such other securities and assuming that all
stock options and/or shares of capital stock reserved for grant or issuance to
officers, directors, employees and consultants under all agreements, plans or
arrangements theretofore approved by the Board of Directors of the Company have
been so granted or issued (as the case may be).
1. EXERCISE OF WARRANT.
The terms and conditions upon which this Warrant may be exercised and
the shares of Common Stock covered hereby that may be purchased, are as follows:
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1.1. Exercise.
(a) This Warrant is being issued pursuant to an Amended and
Restated Anchor Tenant Agreement, dated as of the date hereof (as same
may be amended, the "Agreement"), between the Company and AOL. All
terms used but not defined herein shall have the meanings set forth in
the Agreement. This Warrant may be exercised, in whole or in part, from
and after the date of issuance hereof until the Termination Date (the
"Exercise Period").
(b) Notwithstanding the foregoing, this Warrant may not be
exercised under any circumstances after 5:00 p.m., Dulles, Virginia
time on the eighth (8th) anniversary hereof (the "TERMINATION DATE"),
after which time this Warrant shall terminate and shall be void and of
no further force of effect.
1.2. Exercise Price. The purchase price for the shares of Common Stock
to be issued upon exercise of this Warrant shall be Seven and 20/100 Dollars
($7.20) per share (subject to adjustment as set forth herein, the "EXERCISE
PRICE").
1.3. Method of Exercise. The exercise of the purchase rights evidenced
by this Warrant shall be effected by (a) the surrender of this Warrant, together
with a duly executed copy of the form of Election to Purchase attached hereto,
to the Company at its principal office and (b) the delivery of the Exercise
Price multiplied by the number of shares for which the purchase rights hereunder
are being exercised, payable (x) by certified check, corporate check of America
Online, Inc., or wire transfer of immediately available funds payable to the
Company's order or (y) on a net basis, such that, without the exchange of any
funds, the Warrantholder receives that number of shares otherwise issuable (or
other consideration payable) upon exercise of this Warrant less that number of
shares of Warrant Stock having an aggregate fair market value (as defined below)
at the time of exercise (i.e., the date a duly executed Election to Purchase is
delivered to the Company) equal to the aggregate Exercise Price that would
otherwise have been paid by the Warrantholder for the shares of the Warrant
Stock issuable. In connection with such exercise the holder shall, if requested
by the Company, include confirmation of the accuracy of the representations set
forth in Section 12 and otherwise as reasonably requested by the Company to
evidence compliance with any applicable securities laws as of the date of
exercise. For purposes of the foregoing, "FAIR MARKET VALUE" of the Warrant
Stock on any date shall be the average of the Quoted Prices of the Common Stock
of the Company for 20 consecutive trading days ending the trading day prior to
such date (if, during such 20-day period, there is a day in which no trades are
reported, such date shall be discarded and the 20-day period extended). The
"QUOTED PRICE" of the Common Stock as reported by Nasdaq or, if the principal
trading market for the Common Stock is then a securities exchange, the last
reported sales price of the Common Stock on such exchange which shall be
consolidated trading if applicable to such exchange, or if neither so reported
or listed, the last reported bid price of the Common Stock. In the absence of
such quotation or listing, such determination as to the "Quoted Price" shall be
made in good faith by the Board of Directors of the Company after taking into
consideration all factors it deems appropriate, including, without limitation,
recent sale and offer prices of the capital stock of the Company in private
transactions negotiated at arm's length.
1.4. Issuance of Shares. In the event that the purchase rights
evidenced by this Warrant are exercised in whole or in part in accordance with
the terms of this Warrant, a certificate or certificates for the purchased
shares shall be issued to the Warrantholder as soon as practicable. The Warrant
Stock shall be stamped or imprinted with a legend in substantially the following
form:
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"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. NO SALE OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY AND WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE ACT."
In the event the purchase rights evidenced by this Warrant are
exercised in part, the Company will also issue to the Warrantholder a new
warrant within a reasonable time representing the unexercised purchase rights.
1.5 Exercise of Warrants on Termination Date. If as of the Termination
Date the Warrants are in the money based on the cash or other property to be
received, such exercise shall take place automatically with respect to all then
outstanding and exercisable (but not exercised) Warrants (the "TERMINATION DATE
EXERCISE"), on a net exercise basis, immediately prior to the Termination Date;
provided, however, that the Company may condition such exercise on the delivery
by the Warrantholder of a duly completed Election to Purchase and the reasonable
satisfaction of the Company that all applicable securities laws have been
complied with, which the Company shall give notice to the Warrantholder of
within ten (10) days prior to the Termination Date. No such Termination Date
Exercise shall take place if such issuance would not comply with applicable
securities laws, whereupon the Termination Date shall occur as scheduled.
2. CERTAIN ADJUSTMENTS.
2.1 Weighted Average Anti-Dilution. The Exercise Price shall be subject
to adjustment from time to time as follows:
(a) If the Company shall at any time or from time to time
during the Exercise Period, issue any shares of Common Stock (or be
deemed to have issued any shares of Common Stock as provided herein),
other than Excluded Securities (as defined in Section 2.1(c)) without
consideration or for a consideration per share less than the Exercise
Price in effect immediately prior to the issuance of Common Stock, the
Exercise Price in effect immediately prior to such issuance shall
forthwith be lowered to a price equal to the quotient obtained by
dividing: (x) an amount equal to the sum of (1) the total number of
shares of Common Stock outstanding (including any shares of Common
Stock deemed to have been issued pursuant to Section 2.1(b)(iv))
immediately prior to such issuance multiplied by the Exercise Price in
effect immediately prior to such issuance, plus (2) the consideration
received by the Company upon such issuance, by (y) the total number of
shares of Common Stock outstanding (including any shares of Common
Stock deemed to have been issued pursuant to Section 2.1(b)(iv))
immediately after the issuance of such Common Stock. All calculations
under this Section 2 shall be made to the nearest one tenth (1/10) of a
cent or to the nearest one tenth (1/10) of a share, as the case may be.
(b) For the purposes of any adjustment of the Exercise Price
pursuant to Section 2.1(a), the following provisions shall be
applicable:
(i) In the case of the issuance of Common Stock for
cash, the consideration shall be deemed to be the amount of cash paid
therefor before deducting therefrom any
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discounts, commissions or other expenses allowed, paid or incurred by
the Company for any underwriting or otherwise in connection with the
issuance and sale thereof.
(ii) In the case of the issuance of Common Stock for
a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair
market value thereof as determined in good faith by the Board
of Directors of the Company, irrespective of any accounting
treatment.
(iii) In the case of the issuance of Common Stock
without consideration, the consideration shall be deemed to be
$0.01 per share.
(iv) In the case of the issuance of (x) options to
purchase or rights to subscribe for Common Stock, (y) securities by
their terms convertible into or exchangeable for Common Stock or (z)
options to purchase rights to subscribe for such convertible or
exchangeable securities:
(A) the aggregate maximum number of shares
of Common Stock deliverable upon exercise of such
options to purchase or rights to subscribe for Common
Stock shall be deemed to have been issued at the time
such options or rights were issued and for a
consideration equal to the consideration (determined
in the manner provided in subdivisions (i), (ii) and
(iii) above), if any, received by the Company upon
the issuance of such options or rights plus the
minimum purchase price provided in such options or
rights for the Common Stock covered thereby;
(B) the aggregate maximum number of shares
of Common Stock deliverable upon conversion of or in
exchange for any such convertible or exchangeable
securities or upon the exercise of options to
purchase or rights to subscribe for such convertible
or exchangeable securities and subsequent conversion
or exchange thereof shall be deemed to have been
issued at the time such securities were issued or
such options or rights were issued and for a
consideration equal to the consideration received by
the Company for any such securities and related
options or rights (excluding any cash received on
account of accrued interest or accrued dividends),
plus the additional consideration, if any, to be
received by the Company upon the conversion or
exchange of such securities or the exercise of any
related options or rights (the consideration in each
case to be determined in the manner provided in
subdivisions (i), (ii) and (iii) above);
(C) on any change in the number of shares or
exercise price of Common Stock deliverable upon
exercise of any such options or rights or conversions
of or exchanges for such securities, other than a
change resulting from the antidilution provisions
thereof, the applicable Exercise Price shall
forthwith be readjusted to such Exercise Price as
would have resulted had the adjustment made upon the
issuance of such options, rights or securities not
converted prior to such change (or options or rights
related to such securities not converted prior to
such change) been made upon the basis of such change;
provided, however, that such readjustment shall not
result in a Exercise Price that is greater than the
original Exercise Price; and
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(D) on the expiration of all such options or
rights, the termination of all such rights to convert
or exchange or the expiration of all options or
rights related to such convertible or exchangeable
securities in each case having been issued by the
Company for the same consideration (as determined
pursuant to subdivision (i), (ii) and (iii) above),
the applicable Exercise Price shall forthwith be
readjusted to such Exercise Price as would have
resulted had the adjustment made upon the issuance of
such options, rights, securities or options or rights
related to such securities not been made; provided,
however, that such readjustment shall not result in a
Exercise Price that is greater that the original
Exercise Price.
(c) For purposes of Section 2(a), the term "Excluded
Securities" shall mean (i) up to 2,000,000 shares of Common Stock
(subject to equitable adjustment for stock splits, dividends,
combinations and like occurrences) issued to officers, employees,
directors or consultants of Company, pursuant to any agreement, plan or
arrangement approved by the Board of Directors of the Company, or
options to purchase or rights to subscribe for such Common Stock, or
securities by their terms convertible into or exchangeable for such
Common Stock, or options to purchase or rights to subscribe for such
convertible or exchangeable securities pursuant to such agreement, plan
or arrangement; (ii) shares of Common Stock issued as a stock dividend
or upon any stock split or other subdivision or combination of shares
of Common Stock; (iii) shares of Common Stock (subject to equitable
adjustment for stock splits, dividends, combinations and like
occurrences) reserved for issuance upon the conversion of presently
issued and outstanding securities which by their terms are convertible
into or exchangeable for such Common Stock; or (iv) securities issued
pursuant to the acquisition of another corporation or other entity by
the Company by merger or purchase of stock or purchase of all or
substantially all of such other corporation's or other entity's assets
whereby the Company owns not less than a majority of the voting power
of such other corporation or other entity following such acquisition or
purchase.
2.2 Stock Dividends. If at any time while this Warrant remains
outstanding and unexpired, the Company pays a dividend or makes a distribution
with respect to the Common Stock payable in shares of Common Stock, then the
Exercise Price shall be adjusted, as of the record date of stockholders
established for such purpose (or if no such record is taken, as at the date of
such payment or distribution), to that price determined by multiplying the
Exercise Price in effect immediately prior to such payment or distribution by a
fraction (A) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution, and
(B) the denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution. The Warrantholder
shall thereafter be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of shares of Common Stock (calculated to the nearest
whole share) obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of shares of Common Stock issuable upon
the exercise hereof immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment. The
provisions of this Section 2.1 shall not apply under any of the circumstances
for which an adjustment is provided under Sections 2.3, 2.4 or 2.5.
2.3 Mergers, Consolidations or Sale of Assets. If at any time while
this Warrant remains outstanding and unexpired, there shall be a capital
reorganization of the shares of the Company's capital stock (other than a
combination, reclassification, exchange or subdivision otherwise provided for
herein), or a merger or consolidation of the Company with or into another
corporation in which the Company is not the surviving corporation (collectively,
a "CORPORATE TRANSACTION"), then lawful provision shall be
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made so that such successor corporation or entity shall assume this Warrant such
that the Warrantholder shall thereafter be entitled to receive, upon
exercise of this Warrant, during the period specified in this Warrant and
upon payment of the Exercise Price then in effect, the number of shares of
stock or other securities or property of the successor corporation
resulting from such Corporate Transaction to which a holder of the
securities deliverable upon exercise of this Warrant would have been entitled
under the provisions of the agreement in such Corporate Transaction if this
Warrant had been exercised immediately prior to such Corporate Transaction.
Appropriate adjustment (as determined in good faith by the Company's Board of
Directors after taking into consideration all factors it deems appropriate,
including, without limitation, recent sale and offer prices of the capital
stock of the Company in private transactions negotiated at arm's length) shall
be made in the application of the provisions of this Warrant with respect to
the rights and interests of the Warrantholder after the Corporate Transaction
to the end that the provisions of this Warrant (including adjustment of the
Exercise Price then in effect and the number of shares of Common Stock issuable
under this Warrant) shall be applicable after the Corporate Transaction, as
near as reasonably may be, in relation to any shares or other property
deliverable after the Corporate Transaction upon exercise of this Warrant. The
provisions of this Section 2.3 shall similarly apply to successive
reorganizations, consolidations or mergers.
2.4 Reclassification. If the Company at any time shall, by subdivision,
combination or reclassification or securities or otherwise, change any of the
securities issuable under this Warrant into the same or a different number of
securities of any other class or classes, this Warrant shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as a result of such change with respect to the securities issuable
under this Warrant immediately prior to such subdivision, combination,
reclassification or other change.
2.5 Subdivision or Combination of Shares. If at any time while this
Warrant remains outstanding and unexpired, the number of shares of Common Stock
outstanding is decreased by a combination of the outstanding shares of Common
Stock, then the Exercise Price shall be proportionately increased in the case of
a combination of such shares, or shall be proportionately decreased in the case
of a subdivision of such shares, and the number of shares of Common Stock
issuable upon exercise of the Warrant shall thereafter be adjusted to equal the
product obtained by multiplying the number of shares of Common Stock issuable
under this Warrant immediately prior to such Exercise Price adjustment by a
fraction (A) the numerator of which shall be the Exercise Price immediately
prior to such adjustment, and (B) the denominator of which shall be the Exercise
Price immediately after such adjustment.
2.6 Liquidating Dividends, Etc. If the Company at any time while the
Warrant remains outstanding and unexpired makes a distribution of its assets to
the holders of its Common Stock as a dividend in liquidation or by way of return
of capital or other than as a dividend payable out of earnings or surplus
legally available for dividends under applicable law or any distribution to such
holders made in respect of the sale of all or substantially all of the Company's
assets (other than under the circumstances provided for in the foregoing
Sections 2.2 through 2.6), the holder of this Warrant shall be entitled to
receive upon the exercise hereof, in addition to the shares of Common Stock
receivable upon such exercise, and without payment of any consideration other
than the Exercise Price, an amount in cash equal to the value of such
distribution per share of Common Stock multiplied by the number of shares of
Common Stock which, on the record date for such distribution, are issuable upon
exercise of this Warrant (with no further adjustment being made following any
event which causes a subsequent adjustment in the number of shares of Common
Stock issuable upon the exercise hereof), and an appropriate provision therefor
should be made a part of any such distribution. The value of a distribution
which is paid in other than cash shall be determined in good faith by the Board
of Directors.
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2.7 ADJUSTMENT OF WARRANT STOCK. Upon each adjustment of the Exercise
Price as provided in Section 2, the holder hereof shall thereafter be entitled
to subscribe for and purchase, at the Exercise Price resulting from such
adjustment, the number of shares of Warrant Stock equal to the product of (i)
the number of shares of Warrant Stock existing prior to such adjustment and (ii)
the quotient obtained by dividing (A) the Exercise Price existing prior to such
adjustment by (B) the new Exercise Price resulting from such adjustment. No
fractional shares of Common Stock shall be issued as a result of any such
adjustment, and any fractional shares resulting from the computations pursuant
to this paragraph shall be eliminated without consideration.
2.8 Notice of Adjustments. Whenever any of the Exercise Price or the
number of securities purchasable under the terms of this Warrant at that
Exercise Price shall be adjusted pursuant to Section 2 hereof, the Company shall
promptly notify the Warrantholder in writing of such adjustment, setting forth
in reasonable detail the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise
Price and number of shares of Common Stock or other securities issuable at that
Exercise Price after giving effect to such adjustment. Such notice shall be
mailed (by first class and postage prepaid) to the registered Warrantholder. In
the event of:
(a) The taking by the Company of a record of the holders of
any class of securities of the Company for the purpose of determining the
holders thereof who are entitled to receive any dividend or other distribution,
or any right to subscribe for, purchase or otherwise acquire any shares of stock
of any class or any other securities or property, or to receive any other right
for which no adjustment is required by the operation of this Section 2,
(b) Any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all of the assets of the Company to any other
person or any consolidation or merger involving the Company for which no
adjustment is required by the operation of this Section 2, or
(c) Any voluntary or involuntary dissolution, liquidation, or
winding-up of the Company,
the Company will mail (by first class and postage prepaid) to the Warrantholder,
at its last address at least ten (10) days prior to the earliest date specified
therein as described below, a notice specifying:
(i) The date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the amount
and character of such dividend, distribution or right; and
(ii) The date on which any such reorganization,
reclassification, transfer, consolidation, merger, dissolution,
liquidation or winding-up is expected to become effective and the
record date for determining shareholders entitled to vote thereon.
Failure to give any notice required under this Section 2.8, or any
defect in such notice, shall not affect the legality or validity of the
underlying corporate action taken or transaction entered into by the Company.
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3. FRACTIONAL SHARES.
No fractional shares shall be issued in connection with any exercise of
this Warrant. In lieu of the issuance of such fractional share, the Company
shall make a cash payment equal to the then fair market value of such fractional
share as determined under Section 1.3.
4. RESERVATION OF COMMON STOCK.
The Company shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the exercise of this Warrant, a sufficient number of shares of Common
Stock to effect the exercise of the entire Warrant and if at any time the number
of authorized but unissued shares of Common Stock shall not be sufficient to
effect the exercise of the entire Warrant, in addition to such other remedies as
shall be available to the holder of this Warrant, the Company will use its
reasonable efforts to take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purposes.
5. PRIVILEGE OF STOCK OWNERSHIP.
Other than as set forth herein, prior to the exercise of this Warrant
and the issuance to the Warrantholder of certificates representing the resulting
shares of Common Stock, and except as otherwise provided herein, the
Warrantholder shall not be entitled, by virtue of holding this Warrant, to any
rights of a Stockholder of the Company, including (without limitation) the right
to vote, receive dividends or other distributions or be notified of Stockholder
meetings, and such holder shall not be entitled to any notice or other
communication concerning the business or affairs of the Company, except as
required by law.
6. LIMITATION OF LIABILITY.
No provision hereof, in the absence of affirmative action by the holder
hereof to purchase the securities issuable under this Warrant, and no mere
enumeration herein of the rights of privileges of the holder hereof, shall give
rise to any liability of such holder for the purchase price or as a Stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
7. TRANSFERS AND EXCHANGES.
This Warrant may be transferred or assigned in whole or in part at any
time or from time to time, provided such transfer complies with (i) all
applicable federal and state securities laws, (ii) the requirements of any
legend on this Warrant, and (iii) any corresponding lock-up period agreed to by
AOL with underwriters to the Company with respect to an IPO, for a period not to
exceed 180 days (or such lesser period as may be requested by the underwriters
in the offering), provided that all officers and directors of the Company agree
to enter into lock-up agreements no less restrictive than the terms outlined
above.
8. PAYMENT OF TAXES.
The Company shall pay all stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of the securities issuable under
this Warrant. The Company shall not be required, however,
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CONFIDENTIAL
to pay any tax or other charge imposed in connection with any transfer involved
in the issue of any certificate for shares of the securities issuable under
this Warrant in any name other than that of the Warrantholder, and in such
case, the Company shall not be required to issue or deliver any stock
certificate until such tax or other charge has been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
9. NO IMPAIRMENT OF RIGHTS.
The Company hereby agrees that it will not, through the amendment of
its Certificate of Incorporation or otherwise, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate in order to
protect the rights of the Warrantholder against impairment.
10. SUCCESSORS AND ASSIGNS.
The terms and provisions of this Warrant shall be binding upon the
Company and the Warrantholder and their respective successors and assigns.
11. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and in case of
loss, theft or destruction, upon receipt of an indemnity or security reasonably
satisfactory to the Company, and upon reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will make and deliver a new warrant of
like tenor and dated as of such cancellation, in lieu of this Warrant.
12. SECURITIES LAW MATTERS.
Warrantholder represents to the Company as follows:
(a) the Warrants and Common Stock to be acquired by
Warrantholder pursuant hereto will be acquired for its own account and not with
a view to, or intention of, distribution thereof in violation of the Securities
Act of 1933 (the "SECURITIES ACT") or any applicable state securities laws, and
such securities will not be disposed of in contravention of the Securities Act
or any applicable state securities laws;
(b) the Warrantholder understands that (a) the Warrants and
Common Stock issuable on exercise have not been registered under the Securities
Act, nor qualified under the securities laws of any other jurisdiction, (b) such
securities cannot be resold unless they subsequently are registered under the
Securities Act and qualified under applicable state securities laws, unless the
Company determines that exemptions from such registration and qualification
requirements are available, and (c) this Warrant does not grant the
Warrantholder any right to require such registration or qualification;
(c) Warrantholder is familiar with the term "accredited
investor" as defined in Rule 501 under the Securities Act and investor is an
"accredited investor" within the meaning of such term in Rule 501 under the
Securities Act;
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(d) Warrantholder is sophisticated in financial matters and
the market for Internet companies and is able to evaluate the risks and benefits
of the investment in the Warrants and Common Stock issuable on exercise;
(e) Warrantholder is able to bear the economic risk of its
investment in the Warrants and the Common Stock issuable on exercise for an
indefinite period of time; and
(f) Warrantholder has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
securities and has had full access to such other information concerning the
Company as investor has requested.
13. SATURDAYS, SUNDAYS, HOLIDAYS.
If the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall be a Saturday or Sunday
or shall be a legal holiday, then such action may be taken or such right may be
exercised on the next succeeding day not a legal holiday.
14. GOVERNING LAW.
This Warrant shall be construed, interpreted, and the rights of the
Company and the Warrantholder determined in accordance with the internal laws of
the State of Delaware, without regard to the conflict of laws provision thereof.
15. BENEFITS OF THIS WARRANT.
Nothing in this Warrant shall be construed to give any person other
than the Company and the registered Warrantholder any legal or equitable right,
remedy or claim.
16. COUNTERPARTS.
This Warrant may be exercised in counterpart with each constitution; an
original and together constituting but one and the same Warrant.
(signature page follows)
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IT WITNESS WHEREOF, The Knot, Inc. has caused this Warrant to be duly
executed and delivered to the Warrantholder identified below on the date first
set forth above.
THE KNOT, INC.
By:
Dated: July ___, 1999
Acknowledged and Accepted:
America Online, Inc.
By:____________________________
Name:
Title:
Address for Notice:
00000 XXX Xxx
Xxxxxx, XX 00000
Attention: General Counsel
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ELECTION TO PURCHASE
The Knot, Inc.
_____________________
_____________________
Ladies and Gentlemen:
The undersigned hereby elects to purchase, pursuant to the provisions
of the Warrant dated July ___, 1999 held by the undersigned, _________ shares of
the Common Stock of The Knot, Inc., a Delaware corporation.
Payment of the per share purchase price required under such Warrant
[accompanies this Election to Purchase.][shall be made pursuant to the net
exercise provision contained in Section 1.3 of the Warrant.]
The undersigned hereby confirms the representations made in Section 12
of the Warrant are true and correct as of the date of this Election to Purchase.
Dated: ___________________, 200_
___________________________
Print Name of Warrantholder
By_________________________
Address: ___________________________
___________________________
