CO-BRANDING AND LICENSE AGREEMENT
This Agreement, dated as of September 7, 1999 is between ZDNet, a
division of ZD Inc., a Delaware corporation, with a business address at 000
Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("ZDNet"), and xxxxxxx.xxx
inc., a Minnesota corporation, with a principal place of business at 0000
Xxxxx Xxxxxxxxx, Xxxxx, Xxxxxxxxx 00000 ("Company").
WHEREAS Company is the owner of the Web site at URL xxx.xxxxxxx.xxx (the
"Techies Site") which is designed to assist technology professionals with
career management and to assist companies in recruiting technology
professionals by matching corporate needs with available technology
professional personnel;
WHEREAS ZDNet operates an Internet site that provides information and
services related to computers and technology (the "ZDNet Site"). The "ZDNet
Site" shall mean the web site owned and operated by ZDNet aimed at users
within the U.S. which is currently located at xxx.xxxxx.xxx, excluding the
following areas of the site: ZDTV, Gamespot, Xxxxxxxxxx.xxx, the Mac Channel,
all foreign editions of the ZDNet Site, and ZDU; and
WHEREAS Company and ZDNet each desire to create, develop and
operate a co-branded area on the ZDNet Site (the "Co-branded Site") and to
establish links from the ZDNet Site to the Co-branded Site for promotional
purposes.
NOW, THEREFORE, ZDNet and Company hereby agree as follows:
1. CO-BRANDED SITE.
(a) LAUNCH. The parties shall use best efforts to create,
develop and launch the Co-Branded Site on or before October 15, 1999. The
parties shall cooperate in good faith during a mutually agreed testing and
beta period prior to launch to ensure the viability of the Co-branded Site.
(b) CONTENT. The Co-branded Site will include a tech career
development center with the following functions and features: job listing
search (company not identified), career management resource content,
registration and Company authored related articles reasonably approved by
ZDNet (the "Techies Content"), and such content and services relating to
career development that are available on the ZDNet Site and other ZDNet
authored content (the "ZDNet Content") as the parties shall mutually agree.
ZDNet shall deliver the ZDNet Content to the Co-branded Site via FTP feed or
other mutually acceptable method. Other than the Techies Content and ZDNet
Content, no other content shall be included in the Co-branded Site unless
both parties mutually agree to include such content.
(c) URL. The Co-branded Site will have two URLs: (i)
xxxxxxx.xxxxx.xxx and (ii) xxxxx.xxxxxxx.xxx. A user will be able to navigate
back and forth between the two URLs as necessary. Exhibit A more fully sets
forth the features and functions by URL.
(d) ADDITIONAL PRODUCTS AND SERVICES. If during the Term of this
Agreement, Company offers or links to new services and products on the
Techies Site, other than the Techies Content described in Section 1(c),
Company may make such products and services available to the Co-branded Site;
provided, that such new products and services shall not be included in the
Co-branded Site without the consent of ZDNet and the inclusion of such
products and services on the Co-branded Site shall be upon financial terms to
be negotiated in good faith and agreed by the parties hereto. If Company does
not make such products and services available on the Co-branded Site, such
products and services shall not be promoted on the Co-branded Site, nor shall
the Co-branded Site provide a link to any pages of the Techies Site that
contain such products and services. Any such products and services included
on the Co-branded Site in accordance with this Section 1(d) shall be
considered to be included in the definition of Techies Content.
(e) BRANDING. The Co-branded Site will feature both the ZDNet
Marks and Company Marks (as such terms are hereinafter defined); provided,
however that the pages within the URL xxxxx.xxxxxxx.xxx will not include the
ZDNet Marks except for the pages that provide for the registration to ZDNet.
The ZDNet Marks and Company Marks shall appear in substantially equal size
and placed in appropriate positions of substantially similar prominence on
the Co-branded Site, as mutually agreed by the parties. All use of the ZDNet
Marks and Company Marks on the Co-branded Site shall be in accordance with
Section 10 herein. ZDNet shall create front-end specifications and design the
user interface (including content such as graphics and text) for the
Co-branded Site in consultation with Company and consistent with user
interface designs based on back-end specifications of the Techies Site. ZDNet
will also develop all graphics for the interface. The Co-branded Site shall
have a "look and feel" substantially similar to the ZDNet Site so that it
looks and feels like an integrated part of the ZDNet Site. The design, text
and graphics of the Co-branded Site created by ZDNet shall be subject to the
Company's approval, which shall not be unreasonably withheld or delayed, and
in any event, Company shall provide approval or rejection of the design, text
and graphics within five (5) business days of Company's receipt of such
materials from ZDNet. If Company does not deliver consent or rejection to
such materials within such five (5) day period, Company shall be deemed to
have approved such design, text and graphics. The design layout of the
Co-branded Site shall be substantially in the form attached as Exhibit B
which if not attached at execution of the Agreement shall be provided by
ZDNet within ten (10) business days of the effective date of the Agreement.
Each party will designate a contact to whom questions about the production of
the Co-branded Site shall be directed.
2. PROMOTIONAL OPPORTUNITIES. ZDNet will provide promotional
opportunities within certain areas of the ZDNet Site linking to the
Co-branded Site in accordance with the Promotion Plan attached hereto as
Exhibit C. ZDNet shall be responsible for developing in consultation with the
Company, all promotions and links from the ZDNet Site to the Co-branded Site,
including design and development of creative elements and software
implementation of links. Company and ZDNet shall jointly review the Promotion
Plan and ZDNet's performance
2
thereunder, at least quarterly during the Term of this Agreement. If it shall
appear that the Co-branded Site is not likely to meet the Company's
membership target goals (as set forth in Exhibit H) for the first twelve
month period of the Term of this Agreement, ZDNet agrees to increase its
email promotional activities by 1,000,000 messages each of four times during
the second twelve months of the Term, at no further charge to Company, and to
discuss generally the promotional activities performed pursuant to this
Agreement. In addition to those opportunities provided in Exhibit C, Company
may purchase additional advertising and promotion for the Co-branded Site to
be provided on the ZDNet Site at a ten percent (10%) discount off the then
prevailing lowest rate card prices for such advertising and promotion on the
ZDNet Site. ZDNet shall perform a custom survey of the ZDNet Site users
meeting Company's requirements set out in Exhibit D two (2) times per year.
Survey results will be provided to Company in tabulated and raw data form.
All advertisements and promotions provided pursuant to this Agreement, shall
also be subject to ZDNet's General Terms and Conditions as set forth on
ZDNet's then current rate card which may be amended from time to time at
ZDNet's discretion; provided, that to the extent there is any inconsistency
in the terms of such rate card and this Agreement, the terms of this
Agreement shall control. ZDNet's current Terms and Conditions are attached as
Exhibit E and the current rate card can be reviewed at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxxxxxx/xxxxxxxx.xxx. ZDNet reserves the
right to redesign or modify the organization, structure, "look and feel,"
navigation and other elements of the ZDNet Site, including without
limitation, by adding or deleting channels, subchannels and/or screens. If
ZDNet eliminates or modifies an area of the ZDNet Site in a manner that
modifies the nature of the promotions required under this Section 2 and
Exhibit C in a material adverse fashion, ZDNet will provide the Co-Branded
Site with comparable promotions reasonably satisfactory to Company and, if
requested by Company, shall meet with Company to discuss such modifications,
and such modifications to the promotions shall be made within a commercially
reasonable time frame. No such change shall be made without prior notice to
Company. Additionally, the parties will work together to conform the
Co-branded Site to the new "look and feel" of the ZDNet Site within a
commercially reasonable time frame.
3. EXCLUSIVITY; NONCOMPETITION; THIRD PARTY CONTENT ON THE TECHIES SITE.
(a) EXCLUSIVITY.
(i) During the Term of this Agreement, Company will be the
exclusive integrated, co-branded provider of technology job listings on the
ZDNet Site. ZDNet shall not provide any promotional opportunities or
advertising on the Co-branded Site or within careers-oriented newsletter
described in Exhibit C for any third parties who provide job listings.
Advertising or promotional opportunities for other parts of the ZDNet Site
for job listing providers will be limited to standard advertising units such
as banner ads, sponsored text links and standard rotating buttons.
Advertisements on the ZDNet Site for any single job listing service, other
than Company's service, shall not account for more than [****] in revenue to
ZDNet during any twelve (12) month period during the Term of this Agreement.
Notwithstanding anything set forth in this Section 3(a)(i), ZDNet shall not
place a link to a Web site providing technology job listings within the home
page channel navigation of the ZDNet Site.
3
[****] Confidential portion omitted and filed separately with the Commission.
(ii) For the period commencing upon execution of the Agreement
until December 31, 1999, Company shall not enter into any agreement with
either IDG, CMP Media or Cnet that provides for a promotional arrangement
involving the integration of the Techies Site, or any similar site with any
such entity.
(b) NONCOMPETITION. During the term of this Agreement, ZDNet
will not directly compete with the Company, by itself or through any
subsidiary or affiliate entity, in the on-line recruitment space for
technology professionals on the ZDNet Site.
(c) THIRD PARTY CONTENT ON THE TECHIES SITE. If Company includes
any Content (as hereinafter defined) on the Techies Site, ZDNet shall have
the right to include substantially similar content upon the same terms and
conditions. Such ZDNet Content shall be featured as prominently or more
prominently than any other Content. For purposes of this Section 3(c),
"Content" shall mean editorial content and reviews, relating to information
technology, including but not limited to computer hardware and software, the
Internet and related technology provided by [****].
(d) ZDNET SPONSORSHIP ON THE TECHIES SITE. ZDNet shall receive a
sponsorship promotion box (the "Sponsorship MacroButton")_on all pages of the
Techies Site (excepting registration and the first page of the Internet Job
Fair section) from October 1, 1999 through December 31, 1999. The design
parameters are outlined in Exhibit I: Sponsorship MacroButton. In exchange
for this promotion ZDNet will provide a [****] placement fee to the Company
payable on or before December 31, 1999.
4. OPERATIONS.
(a) OPERATING AND SERVING. Company shall host and serve the
Co-branded Site, including the features described in Section 1. Company shall
deliver the following features to be used on the Co-branded Site: (a) the
same registration tool used for the Techies Site; provided, that the
registration form shall include such additional information, if any, as is
required to register on the ZDNet Site and users of the Co-branded Site will
be automatically registered as ZDNet members unless they choose to opt out,
and the parties shall mutually agree to the form and content of the
registration interface, so that each party is able to obtain their respective
registration information therefrom; (b) advertising delivery features and (c)
additional features as mutually agreed by the parties. Company shall operate
and serve the Co-branded Site in a manner consistent with the present quality
standards maintained on the Techies Site and which meets response performance
standards for Co-branded Site users set out in Exhibit F. Company shall be
responsible for all system operation software costs, hardware costs and
network costs incurred in connection with hosting the Co-branded Site.
Company shall be responsible for quality assurance of the Co-branded Site and
its performance; provided that Company shall not be responsible for
performance relating to the undertakings or obligations of ZDNet. ZDNet shall
be responsible for all system operation software costs, hardware costs, and
network costs incurred in connection with delivering the ZDNet Content and
advertising to the Co-branded Site.
4
[****] Confidential portion omitted and filed separately with the Commission.
(b) MAINTENANCE AND TECHNICAL SUPPORT. Company and ZDNet shall
each maintain the portions of the design, content, and software developed for
the Co-branded Site for which each party is responsible. Company shall
incorporate all bug fixes and upgrades into the production version of the
Co-branded Site and will consider all product changes and enhancements
reasonably requested by ZDNet on an ongoing basis during the Term of this
Agreement, and shall make any product changes or enhancements that are
reasonably necessary to maintain the Co-branded Site at the standards set
forth in Section 4(a). All product upgrades shall be implemented by Company,
and Company shall maintain the hardware and bandwidth upgrades reasonably
needed to maintain services and products with performance and reliability
standards comparable to the Techies Site and the ZDNet Site. Each party
agrees to consult with the other party regarding technical issues and each
party shall designate a technical person as the contact person for such
consultation. Such technical person shall be contacted at least three (3)
working days prior to scheduled outages and immediately in case of
unscheduled outages
(c) CUSTOMER SUPPORT. Company shall provide all customer support
requested by the registered members and the companies who provide job
listings. Such support shall include making representatives of Company
available by email during regular business hours in each city in which the
Company maintains operations.
5. ADVERTISING ON THE CO-BRANDED SITE. ZDNet will sell all
advertising to be placed on the Co-branded Site and will remotely deliver
such advertising. ZDNet may serve such advertisements to pages contained
within the URL xxxxxxx.xxxxx.xxx and will not serve advertisements to pages
contained with in the URL xxxxx.xxxxxxx.xxx. Company will cooperate with the
integration of ZDNet's ad serving software with the Co-branded Site in order
that ZDNet may deliver and track such advertising efficiently and accurately.
ZDNet shall not sell or display advertising on the Co-branded Site for
persons or firms engaged in on-line recruitment (provided, that such
prohibition shall not preclude the advertisements of entities that recruit
their own employees through on-line activities except those entities engaged
in the business of on-line recruitment), nor any advertising which is
illegal, or features sexually explicit material or promotes alcohol, firearms
or on-line gambling. ZDNet shall pay Company a fee equal to [****] of the
Co-branded Site Net Revenue (as hereinafter defined) from all such
advertising sales or a comparable fixed payment to be agreed upon by the
parties (the "Advertising Fee"). "Co-branded Site Net Revenue" shall mean
gross revenue from the sale of advertising by ZDNet on the Co-branded Site
less sales commissions, agency fees, bad debts, refunds, rebates and
"makegoods". For purposes of determining amounts due to Company, Co-branded
Site Net Revenue shall not be less than [****] of the gross revenue from the
sale of advertising by ZDNet on the Co-branded Site. Within thirty (30) days
after the close of each month (beginning October 1, 1999), ZDNet will provide
Company with monthly reports of revenues from advertising sold during the
preceding month. ZDNet will deliver the Advertising Fee to Company on a
quarterly basis within thirty (30) days of the end of each three month period
during the Term of this Agreement, commencing with the first three month
period beginning October 1, 1999 and ending December 31, 1999. Each payment
shall include a report summarizing advertising sold during the applicable
period and the revenues received with respect to such advertising. Company
shall have the right to examine or appoint an independent certified public
accountant to examine and audit, at Company's expense, and not more than once
a year during normal business hours, the relevant records of ZDNet relating
to the advertising
5
[****] Confidential portion omitted and filed separately with the Commission.
revenues for the Co-branded Site and calculation of the Company's fee under
this Section 5. If such audit uncovers a deficiency in payment, ZDNet shall
promptly reimburse Company in the amount of such underpayment and if the
underpayment is ten percent (10%) or greater, ZDNet shall also promptly
reimburse Company for the reasonable costs of such audit. Company shall not
sell advertising for placement on the Co-branded Site without the prior
written consent of ZDNet; provided, however, Company may display company
profiles and job listings which are not intended to be advertisements and are
customarily included in the content on the Techies Site.
6. TRAFFIC REPORTS. Company shall generate daily traffic reports and
shall provide copies to ZDNet on a reasonable basis.
7. DATA OWNERSHIP AND USE.
(a) OWNERSHIP. Company shall own all user registration data
("Data") generated through the Co-branded Site. All new members on the
Co-branded Site shall also register for the ZDNet Site unless they opt out of
such registration under the registration interface to be agreed upon by the
parties. The data collected in connection with the registration with ZDNet
consisting of the registrant's first and last name, address, city, zip code,
country and email address (the "ZDNet Registration Data") shall be co-owned
by ZDNet and Company. Identical data collected by Company from persons opting
out of ZDNet registration ("Permitted Use Registration Data") will remain
owned solely by Company but made available to ZDNet under the remaining terms
of this Section 7.
(b) Delivery of Information to ZDNet. Company shall provide the
ZDNet Registration Data and Permitted Use Registration Data in summary and in
detailed form to ZDNet for use as permitted in Section 7(d). Such data shall
be shared in real time if commercially and technologically feasible so that,
for example ZDNet could customize its site content and advertising for such
user. If real time data sharing is not available, Company shall provide such
data to ZDNet at least bi-weekly in an alternative format to be mutually
agreed. Company shall provide to ZDNet any other information (excluding Data)
which it collects on the Co-branded Site such as page views and unique users.
Company shall not be required to share Data (except for the ZDNet
Registration Data, as such Data will be co-owned by ZDNet and Company) or
share Permitted Use Registration Data or other information if such disclosure
would violate any law or its privacy policy.
(c) DELIVERY OF INFORMATION TO COMPANY. ZDNet shall provide
Company with any information it collects on the Co-branded Site, including,
without limitation, page views, unique users, click-throughs to the
registration tool, and standard reporting on all promotions the Company runs
on the ZDNet network (including on-line, radio and television). ZDNet shall
not be required to provide any information to Company if such disclosure
would violate any law or its privacy policy.
(d) PERMITTED USE. The parties acknowledge and agree that all
use of the Permitted Use Registration Data and other information provided by
either party to the other party pursuant to this Section 7 shall be used only
as allowed by Company's and ZDNet's privacy policies in effect from time to
time. Subject to ZDNet's right to use the ZDNet
6
Registration Data for any purpose in accordance with its privacy policy,
ZDNet shall be entitled to use the Permitted Use Registration Data for
internal purposes only, and shall not disclose, sell or otherwise convey the
Permitted Use Registration Data to any third party. Notwithstanding anything
else set forth in this Section 7, ZDNet may use any Permitted Use
Registration Data to formulate statistics for its sales and marketing
purposes, but not for any direct revenue generation purpose. Company shall
not disclose, sell or convey the ZDNet Registration Data to any third party
as a ZDNet audience list, and shall not disclose information provided by
ZDNet under Section 7(c) to any third party, but may use such information for
sales and marketing purposes.
8. TERM; TERMINATION.
(a) TERM. Subject to the earlier termination of this Agreement
at set forth below, this Agreement shall commence the date hereof and shall
expire on October 15, 2001 (the "Term").
(b) TERMINATION. Either party may terminate this Agreement prior
to the end of the Term if (i) the other party has materially breached its
obligations under this Agreement and such breach is not cured within thirty
(30) days after notice from the non-breaching party (failure to make payments
hereunder shall constitute a material breach of this Agreement), (ii) the
other party makes a general assignment for the benefit of its creditors,
files a voluntary petition in bankruptcy or for reorganization under the
bankruptcy laws or if a petition is filed against it, or if a receiver or
trustee is appointed for such other party, or (iii) pursuant to Section 20.
(c) EFFECT OF TERMINATION; SURVIVAL. Upon termination or
expiration of this Agreement for any reason, (i) Company shall immediately
cease all use and distribution of the ZDNet Marks (as such term is
hereinafter defined) and the ZDNet Content, and shall promptly delete the
ZDNet Marks and ZDNet Content from its computer systems, (ii) ZDNet shall
immediately cease all use and distribution of the Company Marks except in
connection with advertising or promotions of the Techies Site purchased by
Company prior to termination or expiration to be posted on the ZDNet Site
after the termination or expiration of this Agreement, it being understood
that ZDNet shall not be obligated to otherwise promote the Techies Site after
termination of this Agreement, and (iii) both parties shall immediately cease
use of the Co-branded Site. Neither party shall thereafter adopt and use any
new trademark, trade name, logo or trade dress which is the same or similar
to any of the Marks owned by the other party, or a URL that incorporates any
of the Marks owned by the other party. The provisions of this Section and
Sections 7, 10(d), 11, 13 and any payment obligation that has accrued and is
owed by one party to the other party but has not been paid prior to the
termination or expiration, shall survive the termination or expiration of
this Agreement. It is expressly agreed that if this Agreement is duly
terminated prior to expiration of the Term in accordance with Section 8(b),
Company shall be obligated to deliver within thirty (30) days of the
effective date of such termination all amounts accrued and owing under
Section 9(a) prior to such termination.
7
9. CONSIDERATION; PAYMENT.
(a) BASE FEE. Company shall pay ZDNet the amount of Eight
Million Dollars ($8,000,000) (the "Base Fee") in accordance with the payment
schedule set forth in Exhibit G.
(b) ZDNET INVESTMENT. ZDNet and Company agree that within five
(5) business days after the date hereof, ZDNet and Company will consummate
the purchase by ZDNet of capital stock of Company. In the event that the
purchase by ZDNet of the Company's capital stock does not close within such
five (5) business day period for any reason, either party shall have the
right to terminate this Agreement within five (5) business days thereafter
upon notice to the other party. Such termination shall be without any
liability or continuing obligation of ZDNet or Company.
(c) BOUNTIES. In addition to the Base Fee, once Company has
obtained [****] member registrants from the Co-Branded Site, Company shall
pay ZDNet bounty payments ("Bounties") of [****] for each new member
registration made on the Co-branded Site in excess of such four hundred
thousand new member registrations during the Term. For purposes of this
Section 9(c), member registration shall mean those individuals originating
from the ZDNet Site who complete the Co-branded Site member registration
form. The Company shall pay the Bounties, if any, to ZDNet within thirty (30)
days after the close of each calendar quarter commencing with the calendar
quarter beginning October 1, 1999 and ending December 31, 1999 (each such
period, a "Quarter"). Each payment shall include a report summarizing
registrations filed during the applicable Quarter and all prior Quarters and
calculation of Bounties. Company shall deliver such quarterly report whether
a payment is due and owing or not. ZDNet shall have the right to examine or
appoint an independent certified public accountant to examine and audit, at
ZDNet's own expense, and not more than once a year, during normal business
hours, the relevant records of Company relating to calculation of Bounties.
If such audit uncovers a deficiency in payment, Company shall promptly
reimburse ZDNet in the amount of such underpayment and if the underpayment is
ten percent (10%) or greater, Company shall also promptly reimburse ZDNet for
the reasonable costs of such audit.
(d) CORPORATE SUBSCRIPTION. ZDNet shall have the option of
purchasing from the Company a corporate subscription to the Techies Site
multi-site service for each year during the Term at a twenty percent (20%)
discount from the suggested pricing offered to retail customers.
10. INTELLECTUAL PROPERTY.
(a) ZDNET LICENSE. ZDNet hereby grants Company, during the Term,
a non-exclusive, non-transferable, royalty-free (except as provided herein),
worldwide license to use, publicly display, transmit, distribute and
reproduce (a) the ZDNet Content, and (b) ZDNet's logos, trademarks, trade
names and trade dress contained in the ZDNet Content and the "ZDNET"
trademark and logo (the "ZDNet Marks") in accordance with ZDNet's established
trademark usage policies and procedures, solely for the purposes of
operating, hosting, and serving the Co-branded Site and promoting the
Co-branded Site and advertising the ZDNet Site in accordance with Exhibit I.
Company shall not alter, modify or amend the ZDNet Content without the prior
written consent of ZDNet.
8
[****] Confidential portion omitted and filed separately with the Commission.
Company shall not alter or impair any acknowledgment of copyright or other
intellectual property rights of ZDNet that may appear in the ZDNet Content.
If ZDNet requests that any portion of the ZDNet Content on the Co-branded
Site be deleted, corrected or made inaccessible because such ZDNet Content
contains any errors, or is, or could be subject to a claim that is
defamatory, obscene, invades the right of privacy or infringes any right of
any person or entity, or for any other reason, Company shall delete or
correct the affected ZDNet Content within twenty-four (24) hours after
receipt of Company's request.
(b) COMPANY LICENSE. Company hereby grants ZDNet, during the
Term, the right to reproduce and display the Company's logos, trademarks,
trade names and other similar identifying material (the "Company Marks") in
accordance with Company's established trademark usage policies and
procedures, solely for the purposes of promoting the Co-branded Site in
accordance with this Agreement.
(c) USE OF MARKS. In connection with the licenses granted
hereunder, each party shall have the unilateral right to establish such
quality standards and additional terms and conditions concerning the use of
its Marks as such party deems reasonably necessary to protect its Marks. Use
of a party's Marks, and the goodwill associated therewith, shall inure solely
to the respective owner of the Marks. Upon request of either party, the other
party shall provide appropriate attribution of the use of the requesting
party's Marks. Except as expressly permitted herein, neither party shall make
any other use of the other party's Marks. Each party's rights in their
respective Marks, other then those expressly licensed in this Agreement, are
reserved for such party for its own use and benefit.
(d) OWNERSHIP OF MARKS. ZDNet acknowledges and agrees that (i)
as between Company and ZDNet, Company owns all right, title and interest in
and to the Techies Site, Techies Content and the Company Marks, (ii) nothing
in this Agreement shall confer in ZDNet or any ZDNet affiliate any right of
ownership in the Techies Site, Techies Content or and the Company Marks, and
(iii) ZDNet shall not now or in the future contest the validity of the
Company Marks. Company acknowledges and agrees that (i) as between Company
and ZDNet, ZDNet owns all right, title and interest in and to the ZDNet
Content and the ZDNet Marks, (ii) nothing in this Agreement shall confer in
Company or any Company affiliate any right of ownership in the ZDNet Site,
the ZDNet Content and the ZDNet Marks, and (iii) Company shall not now or in
the future contest the validity of the ZDNet Marks. ZDNet and Company shall
jointly own any intellectual property (including any content or graphics that
do not incorporate the Marks) created solely for the Co-Branded Site. Each of
the Company and ZDNet agree that it shall at all times conduct all aspects of
its business which relates to the Co-branded Site in a professional manner
and shall not do or permit to be done any act that could reasonably be
anticipated to harm, prejudice or otherwise damage the reputation and
goodwill associated with the Marks.
11. INDEMNIFICATION.
(a) COMPANY INDEMNITY. Company agrees to indemnify, defend and
hold harmless, ZDNet and its officers, directors, shareholders, employees,
agents and affiliates, subsidiaries, successors and assigns, from and against
any and all damages, liabilities, costs and expenses, including reasonable
legal fees and expenses, arising out of or related to any
9
third party claim alleging (i) any breach of any covenant, agreement or
warranty made by Company in this Agreement, (ii) that the Techies Content
when used on the Co-Branded Site or the Company Marks when used as permitted
herein infringe any copyright, US trademark, US patent, trade secret or other
intellectual property right of any third party, or (iii) unauthorized or
illegal use by the Company of the Data or other information obtained from the
Co-branded Site or from ZDNet.
(b) ZDNET INDEMNITY. ZDNet agrees to indemnify, defend and hold
harmless, Company and its officers, directors, shareholders, employees,
agents and affiliates, subsidiaries, successors and assigns, from and against
any and all damages, liabilities, costs and expenses, including reasonable
legal fees and expenses, arising out of or related to any third party claim
alleging (i) any breach of any covenant, agreement or warranty made by ZDNet
in this Agreement, (ii) that the ZDNet Content or ZDNet Marks when used as
permitted herein infringe any copyright, US trademark, US patent, trade
secret or other intellectual property right of any third party, or (iii)
unauthorized or illegal use by ZDNet of the Data or other information
obtained by ZDNet directly from the Co-branded Site or from Company, and that
any advertising on the Co-branded Site is false or misleading.
(c) CONDITIONS PRECEDENT. Each party's indemnification
obligations hereunder shall be conditioned upon (i) prompt written notice by
the indemnified party to the indemnifying party of any claim, action or
demand for which indemnity is claimed; (ii) complete control of the defense
and settlement thereof by the indemnifying party; and (iii) such reasonable
cooperation by the indemnified party in the defense as the indemnifying party
may request.
(d) INFRINGEMENT CLAIM. If either party's (the "Infringing
Party") intellectual property rights are alleged or held to infringe the
intellectual property rights of a third party, the Infringing Party shall, at
its own expense, and in its sole discretion, (i) procure for the
non-Infringing Party the right to continue to use the allegedly infringing
intellectual property or (ii) replace or modify the intellectual property to
make it non-infringing If neither option is available the Infringing Party
shall be deemed to be in material breach of this Agreement.
12. REPRESENTATIONS AND WARRANTIES.
(a) BY COMPANY. Company represents and warrants to ZDNet:
(i) Company is duly organized and validly existing under the
laws of the State of Minnesota and has full corporate power and authority to
enter into this Agreement and perform as contemplated herein; and
(ii) Company has received no notice that the Company Marks,
Techies Content or any other intellectual property of Company to be used in
the performance of its services and obligations under this Agreement,
violates the rights or interests of any third party.
(b) BY ZDNET. ZDNet represents and warrants to Company:
10
(i) ZDNet is a division of ZD Inc., a corporation duly organized
and validly existing under the laws of the State of Delaware and has full
corporate power and authority to enter into this Agreement and perform as
contemplated herein;
(ii) ZDNet has received no notice that the ZDNet Marks, ZDNet
Content or any other intellectual property of ZDNet to be used in the
performance of its services and obligations under this Agreement, violates
the rights or interests of any third party.
13. PRESS RELEASES. The parties may jointly prepare press releases
announcing the existence of this Agreement, but shall not otherwise make any
public statements or disclosures concerning the terms of this Agreement to any
medium except with the prior approval of both parties or as required by law or
the rules of any applicable stock exchange or any governmental agency.
14. CONFIDENTIALITY. During the Term of this Agreement and thereafter,
each party will use and reproduce the other party's Confidential Information
only for purposes of this Agreement and only to the extent necessary for such
purpose and will restrict disclosure of the other party's Confidential
Information to its employees, consultants or independent contractors with a
need to know and will not disclose the other party's Confidential Information
to any third party without the prior written approval of the other party.
Notwithstanding the foregoing, it will not be a breach of this Agreement for
either party to disclose Confidential Information of the other party if
required to do so under law or in a judicial or other governmental
investigation or proceeding, provided the other party has been given prior
notice and the disclosing party has sought all available safeguards against
widespread dissemination prior to such disclosure. As used in this Agreement,
the term "Confidential Information" refers to: (i) the terms and conditions
of this Agreement; (ii) each party's trade secrets, business plans,
strategies, methods and/or practices; and (iii) any other information
relating to either party or its business that is not generally known to the
public, including but not limited to information about either party's
personnel, products, customers, marketing strategies, services or future
business plans. Notwithstanding the foregoing, Confidential Information
specifically excludes (A) information that is now generally available to the
public or subsequently becomes available to the public through no action or
fault of the other party; (B) information that is known to either party
without restriction, prior to receipt from the other party under this
Agreement, from its own independent sources as evidenced by such party's
written records, and which was not acquired, directly or indirectly, from the
other party; (C) information that either party receives from any third party
reasonably known by such receiving party to have a legal right to transmit
such information, and not under any obligation to keep such information
confidential; and (D) information independently developed by either party's
employees or agents provided that either party can show that those same
employees or agents had no access to the Confidential Information received
hereunder. Notwithstanding anything else set forth in this Section 14, each
party shall be entitled to use the Data in accordance with Section 7 herein.
15. RELATIONSHIP OF PARTIES. Company and ZDNet are independent
contractors under this Agreement, and nothing herein will be construed to
create a partnership, joint venture or agency relationship between them.
Neither party has authority to enter into agreements of any kind on behalf of
the other.
11
16. DISPUTE RESOLUTION; CHOICE OF LAW AND FORUM. This Agreement, its
interpretation, performance or any breach thereof, will be construed in
accordance with, and all questions with respect thereto will be determined
by, the laws of the State of New York applicable to contracts entered into
and wholly to be performed within said state without regard to its conflict
of laws rules. Any disputes between Company and ZDNet not otherwise resolved
by the parties or for which injunctive relief is sought, shall be submitted
to the jurisdiction of the Federal or state courts located (i) in the City of
New York, State of New York in the case of a claim brought by Company against
ZDNet, and Company waives any objection it has or may have in the future with
respect to such venue or (ii) in County of Hennepin, State of Minnesota in
the case of a claim brought by ZDNet against Company, and ZDNet waives any
objection it has or may have in the future with respect to such venue.
17. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements between the parties
concerning the subject matter, and cannot be amended except by a writing
signed by both parties. No party hereto has relied on any statement,
representation or promise of any other party or with any other officer,
agent, employee or attorney for the other party in executing this Agreement
except as expressly stated herein.
18. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed in multiple counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. Facsimile signatures will be considered original signatures.
19. LIMITATIONS OF LIABILITY. EXCEPT FOR ANY INDEMNIFICATION LIABILITY
ARISING UNDER SECTION 11 HEREIN, 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 ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH
DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
20. FORCE MAJEURE. In the event that either party is prevented from
performing, or is unable to perform, any of its obligations under this
Agreement due to any cause beyond the reasonable control of the party
invoking this provision, the affected party's performance shall be excused
and the time for performance shall be extended for the period of delay or
inability to perform due to such occurrence. In the event that a party's
performance is prevented or delayed for more than sixty (60) days, then the
other party may terminate this Agreement upon delivery of written notice to
the non-performing party.
21. NOTICES. All notice required to be given under this Agreement must
be given in writing and delivered either in hand, by certified mail, return
receipt requested, postage pre-paid, or by Federal Express or other
recognized overnight delivery service, all delivery charges pre-paid, and
addressed:
If to Company: xxxxxxx.xxx inc.
12
0000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxxxx 00000
Attention:
Fax Number:
If to ZDNet: ZDNet
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: VP of Corporate Development
Fax No.: (000) 000-0000
With a copy of all notices relating to breach, termination or interpretation
of this Agreement to:
ZD Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal Department
Fax No. (000) 000-0000
A notice shall be deemed to have been delivered (i) upon receipt of such notice
by the receiving party in the event such notice is delivered by hand, (ii) three
(3) business days following the deposit of such notice in the mail if such
notice is being delivered by mail, and (iii) one business day following the
deposit of such notice with an overnight delivery service.
22. SEVERABILITY. In the event that any provision of this Agreement
for any reason shall be held illegal, unenforceable, or invalid, the
remaining provisions hereof shall remain in full force and effect and the
affected provision shall be modified in a manner which comes closest to the
intention of the parties at the time the original provision was agreed upon.
23. WAIVERS. Any waiver of any term or condition of this Agreement
shall only be deemed to have been made if expressed in writing by the party
granting such waiver. The failure or neglect by either party to enforce, in
any one or more instances, any of the terms and conditions of this Agreement
shall not be construed as a waiver of the future performance of any such term
or condition, or any other terms or conditions of this Agreement.
24. ASSIGNMENT. Neither party shall have the right to assign or
sublicense the rights or obligations set forth in this Agreement without the
other party's written consent (which shall not be unreasonably withheld or
delayed), provided that either party shall have the right to assign this
Agreement and all rights and obligations herein to any person or entity
acquiring substantially all of the assigning party's business.
13
IN WITNESS WHEREOF, the undersigned have executed this Co-Branding and
License Agreement as of the date set forth above.
ZD INC. XXXXXXX.XXX INC.
By: /s/ XXXXXX XXXXXXXXXX By: /s/ XXXXX XXXXXXX
------------------------------- -----------------------------------
Name: Xxxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxx
Title: Executive Director, Title: VP - Business Development
Business Development
14
EXHIBIT A
FEATURES BY URL
------------------------------------------------------------------------------------
CO-BRANDED SITE
------------------------------------------------------------------------------------
XXXXX.XXX XXXXXXX.XXXXX.XXX XXXXX.XXXXXXX.XXX
------------------------------------------------------------------------------------
1. Links to Co-branded Site 1. techies.com.articles 1. Registration as
and promotion of Co-branded xxxxxxx.xxx Member
Site in accordance with Exhibit (includes career agent
C to this Agreement. setup)
------------------------------------------------------------------------------------
2. xxxxx.xxx articles
------------------------------------------------------------------------------------
3. xxxxxxx.xxx preview
search & results
------------------------------------------------------------------------------------
4. Company Profiles
------------------------------------------------------------------------------------
5. Promotion of 2. There will be no
xxxxxxx.xxx registration advertisements on this
URL.
------------------------------------------------------------------------------------
15
EXHIBIT B
CO-BRANDED SITE LAYOUT & DESIGN
16
EXHIBIT C
PROMOTION PROGRAM
1. REGISTRATION INTEGRATION
a. ZDNet will integrate an opt-in selection for users to pass a relevant
portion of their registration data to the Co-Branded Service during the
ZDNet registration process. This information transfer will provide a
portion of the data required to complete registration and will trigger
an email encouraging users to proceed with the entire registration
process.
A graphical example is shown as Screenshot A following Exhibit C.
b. [****]
c. [****]
2. ENTERPRISE CHANNEL INTEGRATION
a. ZDNet will provide placement of a graphical macrobutton or equivalent
unit with every page of the Enterprise Channel Career Content Zone,
including but not limited to the Salary Zone tool and other technology
career content offered within the Zone. The placement will drive users
to register with the Co-Branded Service.
b. ZDNet will provide an editorial resource to update and refresh Career
Zone Content on a regular basis, but no less than twice a month.
A graphical example is shown as Screenshot B following Exhibit C
3. COMPANY FINDER INTEGRATION
a. ZDNet will integrate links to the co-branded service within the ZDNet
Company Finder. Links will refer users to the Co-Branded Service.
A graphical example is shown as Screenshot C following Exhibit C
[****] Confidential portion omitted and filed seperately with the Commission.
17
4. INTEGRATION INTO ZDNET PERSISTENT NAVIGATION
a. ZDNet will integrate a "Tech Jobs" link on the ZDNet Persistent
Navigational Element and such link will drive users to the Co-Branded
Service. The link will exist in all displayed instances of the
Navigational Element.
5. INTEGRATION / EXCLUSIVE SPONSORSHIP - ZDNET CAREERS NEWSLETTER
ZDNet will produce a monthly Careers newsletter which will be offered with the
Enterprise Career Zone and within the ZDNet general newsletter sign-up screens.
The newsletter will be ZDNet editorially-driven content and the Co-Branded
Service will be prominently features as the exclusive Career / Jobs sponsor in
every mailing. Xxxxxxx.xxx will also create editorial content for this
newsletter and a minimum of one content piece from Xxxxxxx.xxx will be placed in
each newsletter, subject to final editorial approval by ZDNet. No advertising of
online recruitment firms will be sold in the Careers Newsletter.
6. ZDNET HOMEPAGE INTEGRATION
ZDNet will provide integration of the Co-Branded Service via a "Tech Jobs" or
similar link on the ZDNet Homepage within the Quicklinks, Channel Guide, ZDNet
Services and Persistent navigational elements.
A graphical sample is shown as Screenshot D following Exhibit C
7. ADDITIONAL PROMOTIONAL ELEMENTS
[****]
18
[****] Confidential portion omitted and filed separately with the Commission.
[****]
19
[****] Confidential portion omitted and filed separately with the Commission.
SCREENSHOT A - REGISTRATION INTEGRATION
Internet screen shot of XXXxx.xxx Registration Page
This Web page allows the technology professional to register for multiple
technology-related products and services. Prominently displayed in the center
of this Registration Page is the heading "Enhance Your Career--Find your
dream job today with XXxxxxxxx.xxx" which provides a direct click-through to
the co-branded ZDNet/xxxxxxx.xxx Web site.
20
SCREENSHOT B - CAREER ZONE CONTENT INTEGRATION
Internet screen shot of XXXxx.xxx Career Zone Page
This Web page provides a targeted Salary Database providing comparative
salary information for multiple technology professional occupations.
Prominently displayed on the lower right portion of this Web page is a
click-through button advertisement overlayed with the xxxxxxx.xxx logo and
the text "ZDtechies.com--Your Local Career Source" which provides a direct
click-through to the co-branded ZDNet/xxxxxxx.xxx Web site.
21
SCREENSHOT C - COMPANY FINDER INTEGRATION
Internet screen shot of XXXxx.xxx Company Finder Page
This Web page provides instant profiles of over 4,700 high-tech companies.
Displayed in the center of the page is a heading entitled "Tech Jobs" and a
corresponding click-through button labeled "XXxxxxxxx.xxx." In addition, in
the lower right portion of the screen is a click-through button labeled "Tech
Jobs." Both of these buttons provide a direct click-through to the co-branded
ZDNet/xxxxxxx.xxx Web site.
22
SCREENSHOT D - HOMEPAGE INTEGRATION
Internet screen shot of XXXxx.xxx Homepage
This Web page is divided into multiple categories and subcategories
including, but not limited to, "Breaking News", "Today on ZDNet", "ZDNet
Services" and "ZDMagazines". Displayed in the top third of the page is a
click-through button labeled "Find High Tech Jobs". Under the subcategory
"Careers" is a click-through button labeled "Technology Jobs". Under the
category "ZDNet Services" is a click-through button labeled "Find High Tech
Jobs Here". All of the above-mentioned click-through buttons provide a direct
click-through to the co-branded ZDNet/xxxxxxx.xxx Web site.
23
EXHIBIT D
CUSTOMER SURVEY REQUIREMENTS
Minimum survey frequency: twice per year
Minimum sample size: 1,000
Minimum number of questions and survey design: to be mutually agreed upon by
the parties
Survey content generation: xxxxxxx.xxx.
Survey content approval: joint (ZDNet and xxxxxxx.xxx.)
Question format: multiple choice.
Ownership of data: joint
Reporting format: Microsoft Excel, all recorded data (not just summaries)
24
EXHIBIT E
ZDNET CURRENT TERMS AND CONDITIONS
A. Acceptance of advertising programs subject to space availability upon
receipt of signed contract or insertion order by ZDNet.
B. Online advertisements are accepted upon the representation that advertiser
and its agency have the right to publish and display the contents thereof. In
consideration of such online publication and display, advertiser and its
agency agree to indemnify and hold online publisher harmless against any
expense or loss by reason of any claims arising out of online publication and
display.
C. Positioning of advertisements is at the discretion of the publisher except
where a request for a specific preferred position is acknowledged by
publisher in writing. Material must be received by material closing date,
otherwise position may be lost, or requested impression level may be reduced.
D. Publisher may use prior ad material if new material is not received on
time.
E. Cancellation Policy: Any campaign can be cancelled with no penalty up to
two weeks before the scheduled start date of the campaign. Campaigns
cancelled less than two weeks before the scheduled start date of the campaign
are subject to a 15% cancellation fee. After a campaign has started,
cancellation notices are accepted with two weeks' notice. Advertisers will be
rebilled for all impressions delivered through effective end date; if
appropriate, shortrates will apply.
F. Postponement Policy: In cases where ad material has not arrived by the
fifth working day after the agreed-upon campaign start date, ZDNet's
postponement policy goes into effect. ZDNet will reduce the number of total
impressions for every day the campaign is late, based on even distribution,
and the advertiser will be invoiced at the original contracted dollar amount.
G. All contents of advertisements are subject to online publisher's approval.
Online publisher reserves the right to reject or cancel any advertisement,
insertion order, space reservation or position commitment at any time.
H. All insertion orders are accepted subject to provisions of the current
rate card.
I. Online publisher shall not be liable for any costs or damages if for any
reason it fails to electronically publish and display an advertisement. In no
event shall online publisher be liable for any damages, consequential or
otherwise, in excess of the amount paid for the advertisement, as a result of
any mistake in the advertisement, omission from or error in any index, or for
any other reason.
J. Online publisher shall have the right to hold advertiser and/or its
advertising agency jointly and severally liable for such monies as are due
and payable to online publisher for
25
advertising which advertiser or its agent ordered and which advertising was
published and displayed.
K. No conditions other than those set forth in the rate card shall be binding
on the online publisher unless specifically agreed to in writing by the
online publisher. Online publisher will not be bound by conditions printed or
appearing on order blanks or copy instructions which conflict with the
provisions of the rate card.
L. Online publisher is not liable for delays in delivery and/or non-delivery
in the event of an Act-of-God, action by any government or quasi-governmental
entity, fire, flood, insurrection, riot, explosion, embargo, strikes whether
legal or illegal, labor or material shortage, transportation interruption of
any kind, work slow-down or any condition beyond the control of the
electronic publisher affecting production or delivery in any manner.
M. As used in this section entitled "General Terms and Conditions" the term
online publisher shall refer to ZDNet and Xxxx-Xxxxx Inc.
N. Payment in full is due within 30 days of the "live" date of advertiser's
program.
O. All discounts are multiplicative and not additive.
P. Rates are subject to change upon notice from the publisher. Publisher will
not accept any catalogs as advertisements nor permit the use of the word
"catalog" in any advertisements except by special written agreement with
Publisher. Advertisers using the word "catalog" in their ads without
Publisher's written consent will be held liable for the payment of any
additional postage fees which may be imposed by the US Postal Service."
--------------------------------------------------------------------------------
Contractual Information
- Banners and insertion orders must be delivered at least three (3)
business days prior to the start of an insertion term.
- Banner changes during an insertion term must be delivered at least
one (1) business day prior to change.
- ZDNet will run up to four (4) banners at one time, and will change
creatives as frequently as once per week.
- All advertising requires a signed insertion order.
- Any correspondence should include a list of: advertiser's name,
contracted banner positions, URL link, alternative text and run
dates.
- All quarterly and monthly programs start on weekdays (no holidays
or weekends).
26
EXHIBIT F
PERFORMANCE STANDARDS
Uptime Performance: Company shall maintain uptime of at least ninety-seven
percent (97%) of the time within each one month period of this Agreement,
barring exceptions detailed under Measurement Stipulations below. Service uptime
means that a user on the Internet is able to access the Co-branded Site, and
that access to the Co-branded Site, including the registration tool, shall not
result in retrieval errors.
Measurement Stipulations: Performance shall be measured by multiple independent
third party companies agreed upon by both parties. Measurement periods shall
begin and end at 00:00 Sunday morning. Any scheduled maintenance performed by
Company or its agents shall be excluded from uptime calculations. Company shall
not be responsible for access problems to the Co-branded Site caused by failure
of a user or third party measurement company's ISP, intervening ISP between the
user or third party measurement company's ISP, or peering points (public or
private) between any of the aforementioned parties. Such failures shall not be
included in performance measurement calculations. Problems accessing content
caused by user action or lack thereof (i.e., forgot password, proxies or browser
is not standards compliant, etc.) shall not count toward performance measurement
calculations. However, Company shall take commercially reasonable steps to solve
such problems as they arise.
Non-conformance: Company shall be considered to not be in compliance with
performance measurement guidelines if it fails to meet the conditions outlined
above for two consecutive measurement periods or for three measurement periods
in any six week period.
27
EXHIBIT G
PAYMENT SCHEDULE
The Base Fee shall be allocated as follows:
a. $1,000,000 shall be allocated to the cost of implementing the Co-branded Site
during September and October, 1999. Such costs include integration, testing, and
launch of the Co-branded Site
b. $7,000,000 shall be allocated to the costs of
slotting/distribution / promotion of the Co-branded Site from Oct 1999 to
September 2001.
The fee shall be payable as follows:
a. $333,000 shall be due on the last day of each of October, November, December
of 1999
b. $1,000,000 shall be payable on the last day of March 2000
c. $333,000
shall be payable on the last day of each month from April to Sept 2000
d. $1,000,000 shall be payable quarterly in advance starting 10/1/2000 and the
last payment being due 7/1/2001
28
EXHIBIT H
MEMBER ACQUISITION
EXPECTATIONS
Period Goal
Months 1-6 after launch of [****] members
Co-Branded Site
Months 7-12 after launch of Additional [****] members
Co-Branded Site
29
[****] Confidential portion omitted and filed separately with the Commission.
EXHIBIT I
SPONSORSHIP MACROBUTTON
The Company shall provide an above the fold sponsorship MacroButton to ZDNet.
The MacroButton shall be designed substantially as follows:
Macrobutton Specifications
Dimensions: 88w x 120h (pixels).
Format: GIF format (72dpi, 256 colors).
Link Information: The MacroButton will contain a linked ZDNet logo and 1-3
additional links to ZDNet which shall be editorial in nature and determined by
ZDNet.
30
November 10, 1999
Xx. Xxxxxx Still, Jr.
Norwest Venture Partners
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Xx. Xxxxxxx X. Xxxxx
Crosslink Omega Ventures
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xx. Xxx X. Xxxxxxx
ZDNet, a division of ZD Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Extension of Offering Period; [***]
-----------------------------------
Dear Xxxxxxx, Xxxxxx and Xxx:
As a final step in closing the Series B financing of $25 million, I am asking
for your acknowledgement and consent to (i) extend the offering period under
the Series B Convertible Preferred Stock Purchase Agreement dated September
14, 1999, to allow for the sale of the balance of the shares offered under
the agreement, and (ii) [***]. In exchange, we agree to the items listed on
the attached schedule.
Please sign this letter and return it immediately to me via fax
(000-000-0000).
Sincerely,
/s/ Xxxx Xxxxxxx
----------------------
Xxxx Xxxxxxx
Chief Financial Officer
Acknowledged and Agreed:
Record Name of Shareholder: /s/ ZDNet, a division of ZD Inc.
-----------------------------------
[****] Confidential portion omitted and filed separately with the Commission.
Schedule to 10 November 1999 Letter
------------------------------------
[****]
[****] Confidential portion omitted and filed separately with the Commission.
2
