EXHIBIT 10.2
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR AN ORDER
GRANTING CONFIDENTIAL TREATMENT OF SUCH INFORMATION IN ACCORDANCE WITH RULE
24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
FIFTH AMENDMENT TO
ADVERTISING AND PROMOTION AGREEMENT
This Fifth Amendment to Advertising and Promotion Agreement (the "Fifth
Amendment") between Yahoo! Inc. ("Yahoo") and US XXXXXX.xxx Inc. ("US SEARCH"),
is entered into on September 11, 2002 and is effective as of September 1, 2002.
BACKGROUND
A. Yahoo and US SEARCH executed an Advertising and Promotion Agreement on
June 7, 1999 (the "Agreement").
B. The Agreement was amended four times on October 4, 2000, January 30,
2001, May 17, 2002 and August 12, 2002 respectively.
C. Yahoo and US SEARCH wish to enter into this Fifth Amendment in order to
amend various provisions in the Agreement.
AGREEMENT
The parties agree to amend the Agreement as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. Capitalized terms used in this Fifth Amendment and not
otherwise defined in this Fifth Amendment will continue to have the
meanings given to them in the Agreement and/or as previously amended.
SECTION 2. AMENDMENTS.
2.1 Amendment of Section 1: The definition of Term and Extended Term are
amended as follows and a new definition is added as follows:
"Term" means the period beginning on the date this Agreement is fully
executed and continuing until August 31, 2002.
"Extended Term" means the period between September 1, 2002 and February
29, 2004.
"Yahoo! People Umbrella" means a site combining Yahoo! People Search,
Member Directory, and Profiles under one umbrella site for the purposes
of cross-promoting these various information services.
1
2.2 Amendment of Section 2.1: Section 2.1 of the Agreement is deleted in its
entirety and replaced with the following:
2.1 Yahoo will place US SEARCH links on the various pages within Yahoo
People Search (i.e., Yahoo People Search home page, phone results, phone
no results, phone detailed results, email results, email no results,
email detailed results and advanced email searches) in a substantially
similar manner as set forth in the Exhibits attached to this Agreement
as may be amended from time to time, consistent with the historical
placement and prominence of US SEARCH Links, unless the parties
otherwise agree.
2.3 Amendment of Section 2.2: Section 2.2 of the Agreement is deleted in its
entirety and replaced with the following:
2.2 Yahoo will place Functional Text Links, US SEARCH Wide Buttons and
US SEARCH Modules on the various pages within Yahoo People Search (i.e.
phone and email: results, no results and advanced searches) in a
substantially similar manner as set forth in the Exhibits attached to
this Agreement as may be amended from time to time, consistent with the
historical placement and prominence of Functional Text Links, US SEARCH
Wide Buttons and US SEARCH Modules, unless the parties otherwise agree.
2.4 Amendment of Section 5.6. Section 5.6 of the Agreement is deleted in its
entirety and replaced with the following:
5.6 Pursuant to the advertising guidelines Insertion Order #234073
attached hereto as Exhibit J, Yahoo will place the US SEARCH Wide Button
Links, Search Modules, and Functional Text Links and Banner
Advertisements as provided in Sections 2.1 and 2.2 within seven (7) days
of receiving US SEARCH Links, other than those that are hard coded. For
US SEARCH Links that are hard coded, Yahoo will have those Links placed
on its site as specified herein within fourteen (14) days of receiving
them from US SEARCH. If there is any term or condition of the Insertion
Order #234073 that is inconsistent or conflicts with this Agreement as
amended, this Agreement shall take precedence and control."
2.3 Addition of Section 5.7.
5.7 Within 30 days of the date of this Fifth Amendment, Yahoo shall
redesign the home page and "results" pages of Yahoo People Search to be
substantially similar to the mockups provided on Exhibit P, provided
that US SEARCH provides the necessary data feeds and creative within
such 30 day time period. Within 30 days after Yahoo receives the
necessary data feeds and creative from US SEARCH, Yahoo shall redesign
the "no results" page of Yahoo People Search to be substantially similar
to the mockups provided on Exhibit P. The parties shall work together in
good faith over the Extended Term to optimize the integration of US
SEARCH within Yahoo People Search and if created, within the Yahoo!
People Umbrella. The parties acknowledge that US Search has entered into
this Agreement as amended in reliance upon optimizing the relationship
and that such optimization is a mutual understanding between the
parties. Such optimizations may or may not include: (a) increasing
promotion of the Yahoo People Search site via placing the people search
module in member directory, profiles, greetings, maps, email, chat
and/or internal search results; (b) creating the Yahoo People Umbrella
to increase the overall traffic to Yahoo People Search; (c) expand the
2
US SEARCH product and service offering for Public Record Information and
such other product/service lines that US SEARCH may offer; and (d)
facilitating discussions with other Yahoo properties for integration
possibilities, including but not limited to Hotjobs, real estate,
yellowpages, finance, personals and auctions. While it is the express
intent of the parties to optimize the relationship by increasing traffic
to the US SEARCH site for promotion of its products and services, it
shall not be a breach of this Agreement as amended, if any or all of the
above examples of optimization do not occur, as the parties may mutually
agree to other methods to achieve optimization.
2.4 Amendment of Section 6.1. Section 6.1 of the Agreement is deleted in its
entirety and replaced with the following:
6.1 Exclusivity. US SEARCH will be the sole and exclusive third party
advertised, promoted and/or integrated within Yahoo People Search,
unless otherwise mutually agreed to in writing by the parties. If Yahoo
moves Yahoo People Search to the Yahoo! People Umbrella, US SEARCH will
retain their exclusivity for the Yahoo People Search pages within Yahoo!
People Umbrella, but will not have exclusivity over the Yahoo! People
Umbrella home page, or any other categories within Yahoo! People
Umbrella. Yahoo warrants and represents that it has the full right and
authority to grant this right of exclusivity to US SEARCH and this grant
of exclusivity does not conflict with any prior agreements between Yahoo
and any other party.
2.5 Amendment of Section 7.1. Section 7.1 of the Agreement is deleted in its
entirety and replaced with the following:
7.1 A. Over the course of the Extended Term, Yahoo will deliver at
least *** Clicks (the "Click Commitment") on US Search Links.
The parties acknowledge that historically Yahoo has consistently
delivered in excess of this minimum Click Commitment and by
stating this minimum Click Commitment it is not the intent of
the parties to reduce the current level of Clicks. As used in
the Agreement, a Click is an instance of a user pressing down
(clicking) on a mouse button in an advertising space. Yahoo
shall have three months (the "Make Good Period") after the end
of the Extended Term to make good if the Click Commitment is not
met. Placement of US SEARCH Links during the Make Good Period
shall be in the Yahoo People Search area or such other locations
as the parties may reasonably agree upon. During the Make Good
Period, US SEARCH has no fixed payment obligation as set forth
in Section 8.1(a) but the revenue share payments as set forth in
Section 8.1(b) must continue. If Yahoo has not met the Click
Commitment by the end of the Make Good Period, Yahoo must refund
pro-rata to US SEARCH the unearned portion of the Total Contract
Payment (as defined below in Section 8.1(a)) based on the actual
number of Clicks that were not delivered. Meeting the Click
Commitment alone does not release Yahoo from other obligations
under the Agreement. Yahoo will promote US SEARCH in a
substantially similar and consistent manner before and after
satisfying the Click Commitment.
*** THIS INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR AN ORDER GRANTING CONFIDENTIAL
TREATMENT OF SUCH INFORMATION IN ACCORDANCE WITH RULE 24b-2 PROMULGATED UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
3
B. Reports: Yahoo will make available on a daily basis to US
SEARCH, through its online reporting system, the Page View,
Click and click-through rate data by day, by specific US SEARCH
Link at each specific location for all US SEARCH Search Modules,
Enhanced Graphic Links, US SEARCH Wide Buttons, US SEARCH
GRAPHIC Links, US SEARCH Banners, and their associated text
links. For all other hard coded text links the report(s) stated
above will be made on a monthly basis due no later than 7
calendar days after the end of the preceding month.
C. Furthermore, Yahoo will permit US SEARCH, at US SEARCH's
expense, to retain a reputable, independent certified public
accounting firm that is reasonably acceptable to Yahoo solely
for the purpose of reviewing, at a mutually agreed upon time
during normal business hours, those records of Yahoo that relate
to the record of Clicks delivered under this Agreement. In the
event that any review reveals an under delivery of what has been
reported by more than ten (10) percent, Yahoo will pay the costs
of such review, including, but not limited to, the costs and
fees of the accounting firm selected by US SEARCH. Any under
delivery will result in a "make good" as set forth above in
Section 7.1(A) or such other remedy as the parties may agree
upon.
2.6 Deletion of Sections 7.4. Section 7.4 is deleted in its entirety and
replaced with the following:
7.4 Intentionally left blank.
2.7 Amendment of Section 8.1. Section 8.1 of the Agreement is deleted in its
entirety and replaced with the following:
8.1 Fees.
(A) In consideration of Yahoo's performance and obligations
as set forth herein, US SEARCH will pay Yahoo on each
date set forth in Exhibit M ("Date") attached hereto,
the payment set forth opposite each such Date (the
"Payment"). Each such Payment shall be non-refundable,
except to the extent otherwise set forth in the
Agreement as amended. The aggregate sum of the Payments
during the Extended Term shall equal to *** dollars
($***) (the "Total Contract Payment").
*** THIS INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR AN ORDER GRANTING CONFIDENTIAL
TREATMENT OF SUCH INFORMATION IN ACCORDANCE WITH RULE 24b-2 PROMULGATED UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
4
(B) In addition to the Total Contract Payment, US SEARCH
will pay to Yahoo a commission ("Commission") on all
sales revenue generated by US SEARCH during the Extended
Term according to the schedule set forth in Exhibit M-1
attached hereto. For the purpose of determining
Commission, all calculations of monthly revenue
("Monthly Revenue") generated as a result of this Fifth
Amendment shall be net of shipping and handling, any
taxes, fees, charge-backs, refunds, set asides and off
sets. US SEARCH will provide Yahoo with a monthly
statement of Commission due to Yahoo for the previous
month within 10 calendar days after the end of the
previous month. Such statement will be signed and
certified by the Chief Financial Officer of US SEARCH.
US SEARCH will pay such Commission to Yahoo on a monthly
basis within thirty (30) days after the end of the
previous month.
(C) US SEARCH will permit Yahoo, at Yahoo's expense, to
retain a reputable, independent certified public
accounting firm that is reasonably acceptable to US
SEARCH solely for the purpose of reviewing, at a
mutually agreed upon time during normal business hours,
those records of US SEARCH that relate to the
calculation of Commission due to Yahoo under this
Agreement. In the event that any review reveals an
underpayment of more than ten percent (10%), US SEARCH
will pay the costs of such review, including, but not
limited to, the costs and fees of the accounting firm
selected by Yahoo.
2.8 Amendment of Section 9.4. Section 9.4 is deleted in its entirety and
replaced with the following:
"9.4 Survival. The provisions of Sections 1, 7.1(C), 8.1(C) and 10-14
shall survive the expiration or termination of the Extended Term of this
Agreement."
2.9 Addition of Exhibits.
Exhibits M and J, are replaced with Exhibits M & J dated September 1,
2002 and attached hereto this Fifth Amendment and hereby incorporated by
reference.
Exhibits M-1 and P are hereby attached to this Agreement and
incorporated by reference.
SECTION 3. MISCELLANEOUS.
3.1 Execution of Counterparts. This Fifth Amendment may be executed in any
number of counterparts, all of which taken together will constitute a
single instrument. Execution and delivery of this Fifth Amendment may be
evidenced by facsimile transmission.
3.2 Entire Agreement. This Fifth Amendment constitutes the entire agreement
between Yahoo and US SEARCH with respect to the subject matter of this
Fifth Amendment, and there are no representations, understandings or
agreements relating to the subject matter of this Fifth Amendment that
are not fully expressed in this Fifth Amendment.
5
Except as specifically amended by this Fifth Amendment, all of the terms
and conditions of the Agreement remain in full force and effect.
3.3 Order of Precedence. In the event the terms and conditions of this
Agreement as amended conflict with the terms and conditions of any
Exhibit attached hereto and made a part hereof, the terms and conditions
of this Agreement as amended shall take precedence.
The parties have caused this Fifth Amendment to Advertising and
Promotion Agreement to be executed by their duly authorized
representatives as of the date first written above.
YAHOO! INC. US XXXXXX.xxx, INC.
By: /s/ XXXXX XXXXXXX By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxxxx Name: Xxxxx Xxxxx
Title: SVP Communications Title: CEO
6
EXHIBIT J
INSERTION ORDER #234073 DATED SEPTEMBER 1, 2002
7
EXHIBIT M
PAYMENT SCHEDULE -- DATED SEPTEMBER 1, 2002
DUE DATE PAYMENT
-------- -------
Upon Execution of the Agreement
9/30/2002 $***
10/31/2002 $***
11/29/2002 $***
12/30/2002 $***
1/31/2003 $***
2/28/2003 $***
3/31/2003 $***
4/30/2003 $***
5/30/2003 $***
6/30/2003 $***
7/31/2003 $***
8/29/2003 $***
9/30/2003 $***
10/31/2003 $***
11/26/2003 $***
12/30/2003 $***
1/30/2004 $***
TOTAL $***
----
*** THIS INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR AN ORDER GRANTING CONFIDENTIAL
TREATMENT OF SUCH INFORMATION IN ACCORDANCE WITH RULE 24b-2 PROMULGATED UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
8
EXHIBIT M-1
COMMISSION RATES
Commission Rates based on Monthly Revenue
***% below $***
***% on the amount between $*** and $***
***% on the amount between $*** and $***
***% on the amount between $*** and $***
***% on the amount between $*** and $***
***% on the amount between $*** and $***
***% on the amount between $*** and $***
***% on the amount over $***
*** THIS INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR AN ORDER GRANTING CONFIDENTIAL
TREATMENT OF SUCH INFORMATION IN ACCORDANCE WITH RULE 24b-2 PROMULGATED UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
9
EXHIBIT P
PEOPLE SEARCH: HOME PAGE
[SCREEN SHOT IMAGE]
10
PEOPLE SEARCH: NO RESULTS (PHONE)*
[SCREEN SHOT IMAGE]
The screen shot for "No Results" emails shall be substantially similar to this
screen shot.
11
PEOPLE SEARCH: RESULTS (PHONE)*
[SCREEN SHOT IMAGE]
The screen shot for "Results" emails shall be substantially similar to this
screen shot
12
