EXHIBIT 10.05
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This Interactive Services Agreement (this "Agreement"), effective as of
December 23, 1999 (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 XXXX.xxx, Inc.
("Interactive Content Provider" or "ICP"), a Delaware corporation, with its
principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 (each a "Party" and
collectively the "Parties").
INTRODUCTION
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AOL and ICP each desires that AOL provide access to the ICP Internet Site
and ICP Programming through the AOL Network, 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
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1. DISTRIBUTION; PROGRAMMING
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1.1 Programming and Distribution. Beginning on a mutually agreed upon
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date(s) after the Effective Date, but in no event later than the date
by which ICP shall have achieved Site and Content Preparation (as
defined in Section 6.4 hereof), AOL shall provide ICP with the
promotions set forth on Exhibit A-1. The promotions described on
Exhibit A-1 and any other promotions provided by AOL to ICP shall be
referred to as the "Promotions." AOL will have the right to fulfill
the foregoing promotional commitments by providing ICP with comparable
promotional placements in appropriate alternative areas of the AOL
Network, provided that prior to providing ICP with any such comparable
promotional placements that are [**] of the [**], AOL shall seek ICP's
approval, which approval shall not be unreasonably withheld or
delayed. If AOL is unable to deliver any particular Promotion, AOL
will provide ICP, as its sole remedy, with a comparable promotional
placement within the same AOL Property (e.g., in the case of the [**]
within the [**])and at the same [**] as the Promotion not delivered by
AOL. Except to the extent expressly described herein, the exact form,
placement and nature of the Promotions shall be determined by AOL in
its reasonable editorial discretion. ICP shall comply with the
programing requirements and provide the Content set forth on Exhibit
A. AOL's provision of Promotions in connection with any particular AOL
Property shall be conditioned upon ICP's compliance in all material
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
respects with the programming requirements and provision of the
Content set forth on Exhibit A-1 for such AOL Property.
1.2 Content. The ICP Programming shall consist of the Content described
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on the programming plan attached as Exhibit A-2 (the "Programming
Plan") and shall not contain any pointers or links to any other area
on or outside the AOL Network, other than as described on Exhibit A
with respect to such ICP Programming, without AOL's prior written
consent (not to be unreasonably withheld). The ICP Internet Site
shall consist of the Content described on the Programming Plan and any
other Content as to which the Parties may mutually agree from time to
time. ICP shall inform AOL of relevant search terms and terminology
associated with popular areas and functionality within the ICP
Internet Site and ICP Programming for AOL's promotional and content
integration purposes. The inclusion of any additional Content for
distribution through the AOL Network (including, without limitation,
any features, functionality or technology) not expressly described on
Exhibit A shall be subject to AOL's prior written approval.
1.3 License. ICP hereby grants AOL a non-exclusive worldwide license to
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use, market, license, store, distribute, reproduce, display, adapt (to
[**] permitted by the terms of this Agreement, to [**] with the [**]
and as otherwise permitted by the terms of this Agreement),
communicate, perform, translate, transmit, and promote the ICP
Internet Site, the ICP Programming and the Licensed Content (or any
portion thereof) through the AOL Network, during the Term, 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. Any Linked ICP Interactive Sites
shall be subject to the foregoing license.
1.4 Management; Network Costs.
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1.4.1 Site, Licensed Content and Programming Management. ICP shall
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design, create, edit, manage, review, update (on a regular
basis or as otherwise specified herein), 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 use commercially reasonable efforts
to keep the Licensed Content current, accurate and well-
organized at all times. ICP shall ensure that the Licensed
Content within the ICP Internet Site and ICP Programming is
equal to or better 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
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and services and terms and conditions, except to the extent
inclusion of such Content would other-wise violate this
Agreement and except as otherwise expressly stated on Exhibit
A. Notwithstanding the foregoing, the Parties acknowledge and
agree that the Content available on the Institutional Investor
Interactive Site may differ in material respects from the
Content offered on the ICP Internet Site; provided, however,
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that ICP shall not offer any consumer-oriented Content to any
other Interactive Service that is materially different in any
respect from any consumer-oriented (e.g., non-institutional
investor-oriented) Content offered to AOL Members. Except as
specifically provided for herein, AOL shall have no obligations
of any kind with respect to the ICP Internet Site or ICP
Programming.
1.4.2 Hosting, Communication and Network Costs. ICP shall be
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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 or (ii) a mirrored version of the ICP Internet
Site. All AOL network costs associated with the delivery of ICP
Content, including multimedia events through the AOL Network,
will be covered through the Quarterly Payments. ICP will work
with AOL to minimize network costs indirectly or directly
incurred as a result of delivering the ICP Content. Upon mutual
agreement of the Parties, AOL may host the ICP Internet Site
and ICP Programming and ICP shall be responsible for any costs
associated with such hosting. In addition, AOL may elect to
host certain events, and AOL shall be responsible for any costs
associated with such hosting.
1.4.3 No Registration; Site Access. Without AOL's prior approval,
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which will not be unreasonably withheld, 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. During the Term and for the two
(2) year period after the expiration or termination thereof,
ICP shall not prevent AOL Members from accessing and/or using
any ICP Interactive Site on terms and conditions that are as
favorable as the terms and conditions available to other users
of such ICP Interactive Site.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1.4.4 Failure to Comply with Material Obligations.
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(a) ICP Technical Problem. ICP shall ensure that the ICP
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Internet Site complies at all times, in all material
respects, with the standards set forth in Exhibit E
hereto. In the event of any ICP Technical Problem (as
defined in Exhibit B), AOL shall have the right to block
AOL Member access to the ICP Internet Site until such time
as ICP cures such ICP Technical Problem. In the event that
ICP fails to cure any such ICP Technical Problem within
[**] business days, ICP shall be deemed to be in
breach of the Agreement and the thirty (30) day cure
period set forth in Section 6.2 of the Agreement shall
begin to toll. AOL shall have the right (in addition to
any other remedies available to AOL hereunder (e.g., any
blocking right)) to reduce (on a pro rata basis) the
Impressions Target until such time as ICP cures such ICP
Technical Problem (i.e., for each day such ICP Technical
Problem exists beyond such initial [**] business day
period, the Impressions Target shall be reduced by [**]
of the Impressions to be provided by AOL hereunder), and
in such event, AOL shall be relieved of the proportionate
amount of the Impressions Target corresponding to such
reduction in Impressions.
(b) Non-Compliant Content. In the event that AOL notifies ICP
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of the existence of any Content on the ICP Internet Site
that violates the terms or conditions of this Agreement
("Non-Compliant Content"), AOL shall have the right to
immediately block AOL Member access to the ICP Internet
Site, and ICP shall promptly remove such Content. In the
event of the existence of any Non-Compliant Content, AOL
shall have the right (in addition to any other remedies
available to AOL hereunder (e.g., any blocking right)) to
immediately reduce (on a pro rata basis) the Impressions
Target until such time as ICP cures such Non-Compliant
Content (and in such event, AOL shall be relieved of the
proportionate amount of the Impressions Target
corresponding to such reduction in Impressions) (i.e., for
each day such Non-Compliant Content exists, the
Impressions Target shall be reduced by [**] of the
Impressions to be provided by AOL hereunder). In the event
that ICP fails to cure such Non-Compliant Content within
[**] days of receiving notice from AOL, AOL shall
have the right to terminate this Agreement.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1.5 Carriage Fee.
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1.5.1 Schedule. ICP shall pay AOL Fourteen Million One Hundred
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Thousand Dollars ($14,100,000.00) according to the quarterly
payment schedule set forth on Schedule 1.5 attached hereto (the
"Quarterly Payments"), on the quarterly dates set forth on such
Schedule.
1.5.2 Wired Payments. All payments by ICP hereunder shall be paid in
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immediately available, non-refundable U.S. funds wired to the
"America Online" account, Account Number [**] at the Chase
Manhattan Bank, 1 Chase Manhattan Plaza, New York, New York
10081 (ABA: 000000000), or such other account of which AOL
shall give ICP written notice.
1.5.3 Late Payments. In the event a Quarterly Payment is overdue by
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fifteen (15) days following notice thereof to ICP, AOL, (i) may
reduce the relevant Advertising Revenue Share to be paid to ICP
by AOL hereunder up to such amount as is sufficient to offset
the overdue payment due AOL, until such amount has been fully
offset and (ii) in addition to any other remedies available to
AOL hereunder, AOL may terminate this Agreement. Interest on
any such overdue payment shall accrue at the Prime Rate plus
two percent (2%) per annum.
1.5.4 Warrants. ICP shall provide AOL with common stock purchase
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warrants evidencing AOL's right to purchase stock of ICP, on
the terms and conditions as specified in the warrant agreement
attached hereto as Exhibit G (the "Warrant Agreement"), to be
executed concurrently with this Agreement. In the event a
Quarterly Payment is overdue by forty-five (45) days following
notice thereof to ICP, and a reduction in the relevant
Advertising Revenue Share to be paid to ICP by AOL hereunder is
not sufficient to offset the overdue payment due AOL, then AOL
shall have the right to have such warrants begin vesting
immediately at a rate to be calculated as follows: until the
earlier of (a) the date on which such overdue payment is made,
or (b) the date on which all warrants have fully vested, an
additional 5% of the total number of "Acceleration Warrants"
shall vest, where "Acceleration Warrants" means such number of
warrants as is calculated according to the following formula:
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
AW=1.2 * ( X * WAR)
where AW is the number of Acceleration Warrants, X is the total
amount of payment due AOL which is then overdue, and WAR is the
warrant-to-advertising-revenue ratio then applicable pursuant
to the Warrant Agreement (that is, the number of warrants
issuable, at the time, under the Warrant Agreement, per dollar
of advertising revenue generated by AOL).
1.5.5 Advertising Payments. Notwithstanding anything to the contrary
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in Schedule 4.2, during the period between the Effective Date
and September 1, 2000, [**] of the Advertising Revenue Share
(as defined in Section 4.1 below) shall be paid back to AOL by
ICP and shall be credited toward ICP's September 1, 2000
carriage payment, until the earlier of (a) the date on which
the September 1, 2000 carriage payment has been paid in full
via such Advertising Revenue Share payments back to AOL, or (b)
September 1, 2000 (when ICP shall pay any remaining portion of
the September 1, 2000 carriage payment to AOL).
1.6 Impressions Target. During the Term, AOL shall provide ICP with [**]
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Impressions from ICP's presence on the AOL Network (the "Impressions
Target"); provided that AOL shall use commercially reasonable efforts
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to deliver the aforementioned Impressions as evenly as practicable
over each calendar quarter over the course of the Term. For the
purposes of this Agreement, ICP's presence on an AOL screen shall
conform to the specifications of an ICP Presence, provided that only
screens that contain a link to the ICP Internet Site or ICP
Programming will count against the Impressions Target. In the event
that the Impressions Target is not met (or will not, in AOL's
reasonable judgment, be met) during the Term, then as ICP's sole
remedy, at AOL's option either (a) the Term shall be extended for up
to six (6) months without additional carriage fees payable by ICP, (b)
AOL shall, from time to time, provide ICP with the remaining
Impressions in the form of advertising space within the AOL Network of
comparable value to the undelivered Impressions (as reasonably
determined by AOL), or (c) some combination thereof.
1.7 Member Benefits. ICP will generally promote through the ICP Internet
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Site any special or promotional offers made available by or on behalf
of ICP through any ICP Interactive Site or any other distribution
channel; provided, however, that ICP shall not be required to promote
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through the ICP Internet Site offers the sole purpose of which is to
attract or retain public corporations as clients or institutional
investors as subscribers. In addition, ICP shall work with AOL to
promote through the ICP Internet Site on a
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
regular basis (but in any event not less than once per quarter)
special offers exclusively available to AOL Members ("AOL Exclusive
Offers"). The AOL Exclusive Offers 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 (e.g., a special speaker, etc.). 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.
1.8 Premier Status.
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1.8.1 Generally. So long as ICP is in compliance with all material
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terms of this Agreement, during the Term, ICP will be the
premier aggregator of IR Information (as defined in Exhibit B)
that is promoted by [**] (the "Premier Status"). Such Premier
Status shall include, [**] the following:
(a) AOL shall list the ICP Internet Site in AOL's "Directory
of Services" and "Find" features;
(b) AOL shall not enter into an agreement during the Term with
any ICP Competitor with respect to the provision of
additional IR Information on or through the Premier Areas
(e.g., related to other companies not currently
contemplated by the terms of this Agreement), without also
providing ICP with a good-faith opportunity to bid on the
provision of such additional IR Information on or through
the Premier Areas. AOL shall negotiate in good-faith with
ICP with respect to such bid from ICP;
(c) Once the Premier Areas have completed the year 2000
redesign, the Personal Finance [**] (when commercially
available to AOL Members) and the IR Information link from
the primary Quotes page within the Premier Areas shall be
[**] (i.e., the majority of AOL Members shall
not have to [**] the relevant Promotion).
AOL's provision of the Premier Status to ICP is contingent upon
ICP's full performance of all material obligations and full
compliance with all material conditions set forth in this
Agreement, including without limitation, ICP's payment of all
fees due and owing by ICP under (and pursuant to the terms of)
this Agreement. In the event of any substantial redesign of the
AOL Personal Finance Channel during the Term, AOL shall use
commercially reasonable
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efforts to ensure that such redesign shall not have a material
adverse effect on the Premier Status. Any Dispute regarding
whether any such redesign has a material adverse effect on the
Premier Status shall be submitted to the Management Committee
for final resolution pursuant to Section VII of Exhibit C to
this Agreement.
1.8.2 AOL Right to Terminate ICP Premier Status.
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(a) AOL shall have the right to terminate the Premier
Status upon ICP's failure to fully perform all material
obligations or fully comply with all material
conditions set forth in this Agreement; and
(b) AOL shall have the right to terminate, in whole or in
part, the Premier Status, in the event that at any time
during the Term, the ICP Internet Site is not the top
ranked Internet site whose principal business is the
provision of aggregated investor relations web site
content, in terms of, when taken as a whole: (a)
quality based upon a cross-section of independent
third-party reviewers who are recognized authorities in
the investor relations industry and with respect to all
material quality averages or standards in the investor
relations category, including without limitation,
quality, breadth, depth, timeliness, accuracy and
reliability of the Content; functionality, features,
ease of use and user interface of the site; and prices
and terms and conditions of Products offered on the
site and (b) both traffic, as measured by page views
for IR Information components of third-party Internet
Sites, 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.
1.8.2.1 Permissible AOL Activities. Notwithstanding anything to
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the contrary in Section 1.8.1 above (and without
limiting any actions which may be taken by AOL without
violation of ICP's rights hereunder), no provision of
this Agreement will limit AOL's ability (on or off the
AOL Network) to:
(a) undertake activities or perform duties pursuant to
(A) arrangements with third parties existing as of
the Effective Date and (B) any agreements to which
AOL becomes a party subsequent to the Effective
Date as a result of Change of Control, or merger,
acquisition or other similar transaction;
provided, however, that AOL shall use commercially
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Confidential Materials Omitted and filed separately with the
Securities and Exchange Commission Asterisks denote omissions.
reasonable efforts not to promote any such third
parties' IR Information in the Premier Areas in a
manner that would have a material adverse effect on
ICP's Premier Status;
(b) sell or provide advertising (e.g., banners, buttons,
links, sponsorships), including without limitation
standard placements in any shopping area or channel, to
any third party (including other providers of IR
Information); provided, however, that none of such
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advertising shall be sold or provided on the ICP
Internet Site;
(c) create editorial programming and paid-for contextual
links (which programming may relate to and/or include
Content involving IR Information from other providers);
or
(d) enter into arrangements with any third party for the
primary purpose of acquiring AOL Members whereby such
third party is allowed to promote or market its
products or services to AOL Members that are acquired
as a result of such arrangement.
2. PROMOTION
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2.1 Cooperation. Each Party shall cooperate with and reasonably assist
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the other Party in supplying material for marketing and promotional
activities.
2.2 Interactive Site.
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2.2.1 Within each Unrestricted Interactive Site, ICP shall (a) upon
receiving further details from AOL, use commercially reasonable
efforts to participate in the "Netscape Now Affiliate Program"
and (b) include a prominent (i.e., as prominent as that of
[**]) promotional button or banner (at least 90 x 30 pixels or
70 x 70 pixels in size) appearing on the first screen of the
Unrestricted Interactive Site (the "AOL Promo") or, other area
of the ICP Interactive Site as mutually agreed upon by the
Parties (the consent of either Party to such placement not to
be unreasonably withheld), through which users may obtain
promotional information about the AOL Service, the CompuServe
brand service, Netscape or the AOL Instant Messenger service)
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
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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 an
Unrestricted 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 Unrestricted Interactive Site on
which the AOL Promos will appear.
2.2.2 Within each Unrestricted Interactive Site, ICP shall provide
prominent promotion for the keywords associated with the ICP
Internet Site, and to the extent ICP offers or promotes any
products or services similar to AOL's component products and
services (e.g. Netfind or other search/directory services,
NetMail or free/discount email, Instant Messenger, yellow/white
pages, "My AOL" type personalized information, classifieds,
etc.), ICP shall provide equal or greater promotions for such
AOL-designated products.
2.3 Other Media. In ICP's television, radio, print and "out of home"
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(e.g., buses and billboards, point of purchase and other "place-based"
promotions) advertisements which are directed at a retail consumer
audience (in contrast to advertisements directed at public companies
ICP seeks to attract as its clients or at the institutional investor
community), 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 on terms and conditions to be
mutually agreed upon by the Parties. 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 ICP Internet Site, which listing shall conform to
the keyword guidelines attached hereto as Exhibit F. 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.
2.4 Preferred Access Provider. So long as ICP receives the Premier Status
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under this Agreement, ICP shall not promote any Interactive Service
more favorably than AOL, and will not promote any Interactive Service
other than AOL as its preferred Interactive Service. In all
promotions in which ICP references AOL, ICP shall use commercially
reasonable efforts to promote AOL as its preferred Interactive
Service.
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3. REPORTING
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3.1 AOL Reporting.
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3.1.1 Usage. AOL will supply ICP with monthly reports specifying for
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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.
3.1.2 Advertising. As quickly as is reasonable at the end of each
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quarter, AOL will supply ICP with reports specifying the cash
value or fair market equivalent value of any AOL Advertisements
sold during the prior quarter. The report format, unless
otherwise mutually agreed, will be similar in substance and
form to the reports provided by AOL to other content partners
similar to ICP. Each subsequent quarterly report shall contain
an adjustment from, prior quarterly reports for actual amounts
collected by AOL from the sale of AOL Advertisements during the
previous quarters.
3.2 ICP Internet Site Reporting. ICP will supply AOL with monthly reports
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that reflect total impressions by AOL Members to the ICP Internet Site
during the prior month, the number of and aggregate dollar value
associated with the transactions involving AOL Members (to the extent
such information is available or applicable) and any registration
information obtained from AOL Members at the ICP Internet 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.
3.3 Promotional Commitments. ICP shall provide to AOL a monthly report
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documenting its compliance with any promotional commitments it has
undertaken pursuant to this Agreement, and ICP shall provide AOL with
"click-through" data with respect to the promotions specified in
Section 2.
4. ADVERTISING AND MERCHANDISING
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4.1 AOL Advertisements. AOL shall have the right to license or sell
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promotions, advertisements, links, pointers or similar services or
rights ("Advertisements") in or through the ICP Internet Site and ICP
Programming ("AOL Advertisements"). AOL shall use commercially
reasonable efforts to license or sell AOL Advertisements. AOL shall
pay ICP a percentage of the Advertising Revenues generated by AOL or
its agents with respect to AOL Advertisements (the "Advertising
Revenue Share") according to Schedule 4.2 attached hereto.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4.2 Advertising Sales. AOL owns all right, title and interest in and to
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the advertising and promotional spaces within the AOL Network and the
ICP Internet Site (including, without limitation, advertising and
promotional spaces on any AOL forms or pages on which ICP Programming
resides). The specific advertising inventory within any such pages
shall be as reasonably determined by AOL. Upon the prior written
approval of AOL (not to be unreasonably withheld), ICP shall have the
right to license or sell Advertisements in or through the ICP Internet
Site and ICP Programming; provided, however, that in the event that
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both AOL and ICP sell or license an Advertisement for a particular
screen in or through the ICP Internet Site, the AOL Advertisement will
have priority; provided, further, that ICP will not sell any
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Advertisements to any Interactive Service without the prior written
approval of AOL. Notwithstanding the foregoing, in the event that
ICP's share of the Advertising Revenues is less than (a) [**] in the
first year of the Term, (b) [**] in the aggregate by the end of the
second year of the Term, or (c) [**] in the aggregate by the end of
the third year of the Term (each, an "Advertising Revenue Share
Threshold"), ICP shall have the right, but not the obligation, to sell
advertising on the ICP Internet Site during the year immediately
succeeding the year in which ICP's share of the Advertising Revenues
does not exceed the Advertising Revenue Share Threshold; provided,
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however, that after the exercise of such right by ICP, AOL shall not
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have the obligation to sell any further Advertisements on the ICP
Internet Site; provided, further, that after such election by ICP,
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ICP shall be required to comply with and honor the terms of any then
existing contractual commitments between AOL and any third-party
advertiser with respect to the ICP Internet Site. In the event that
in any year of the Term, ICP's share of the Advertising Revenues
exceeds the Advertising Revenue Share Threshold for such year, AOL
shall have the right, but not the obligation, to sell advertising on
the principal ICP Interactive Sites (currently situated at
xxx.xxxx.xxx) pursuant to a revenue sharing arrangement to be mutually
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agreed upon by the Parties. If either ICP or AOL exercises the
aforementioned rights, the Parties shall coordinate their advertising
sales efforts to optimize the results of such efforts (e.g., such that
both Parties' sales forces are not attempting to simultaneously sell
the same inventory, etc.).
4.3 Unacceptable Advertisements. In the event that either Party notifies
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the other that it reasonably believes that an Advertisement running on
the ICP Internet Site or ICP Programming is against its reasonable
business interests, such Advertisement will be [**].
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4.4 Interactive Commerce. Any merchandising permitted hereunder through
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the ICP Internet Site and/or ICP Programming shall be subject to (i)
AOL's standard terms and conditions applicable to its interactive
marketing partners and (ii) prior approval by AOL of all products,
goods and services to be offered for sale through the ICP Internet
Site or the ICP Programming. 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 Internet Site or ICP Programming through auctions,
clubs or any method other than a direct sales format without AOL's
prior written consent. Prior to entering into negotiations with any
third party regarding merchandising or commerce arrangements through
the ICP Internet Site and/or ICP Programming, ICP shall give AOL
written notice of such desire and, upon request by AOL, negotiate in
good faith with AOL or its commerce or marketing partner in the
applicable product/service category regarding a merchandising or
commerce arrangement.
4.5 Payment Schedule. Except as otherwise specified in Section 1.5, each
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Party agrees to pay the other Party all amounts received and owed to
such other Party as described in this Section 4, subject to any
adjustments made as described in Section 3.1.2, 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).
5. CUSTOMIZED ICP PROGRAMMING AND ICP INTERNET SITE
------------------------------------------------
5.1 Performance. All ICP Programming and the ICP Internet Site shall
-----------
comply in all material respects with AOL specifications and guidelines
(including, without limitation, any HTML publishing guidelines) and
the Operating Standards set forth on Exhibit E attached hereto.
5.2 Customization.
-------------
(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. ICP shall make any reasonable changes
to the customization and/or co-branding requirements of any AOL
Property that may occur during the Term.
-13-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission Asterisks denote omissions.
(b) Unless otherwise agreed upon by the Parties, 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 entity reasonably construed to be in
competition with AOL or any AOL Property, (ii) in a category in
which AOL or the applicable AOL Property has an exclusive or
other premier relationship with any third party, or (iii)
otherwise in violation of the applicable AOL Property's standard
advertising policies, which are subject to change from time to
time at AOL's reasonable discretion. AOL represents and warrants
that it has delivered to ICP copies of the current versions -of
the standard advertising policies for each of the AOL Properties
which constitute the subject of this Agreement and has notified
ICP of the categories in which AOL maintains (as of the Effective
Date) exclusive relationships with any third party commerce
partner. AOL shall notify ICP of changes to such list of
categories from time to time, and ICP shall not be deemed to have
breached the terms of this Section 5.2(b) with respect to
advertisements, promotions or links in categories with respect to
which AOL has not notified ICP of an exclusive relationship with
a third party, so long as (i) such exclusive relationship was in
full force and effect prior to the inclusion of such promotions,
advertisements or links and (ii) CCBN removes any such
promotions, links or advertisements within five (5) days
following notification by AOL that an exclusive relationship with
a third party exists. AOL shall use commercially reasonable
efforts to ensure that ICP will not, by reason of this Section
5.2(b), be [**] through the ICP Internet Site and ICP
Programming, provided that the Parties agree that AOL does not
guarantee that ICP will [**] through the ICP Internet Site and/or
ICP Programming.
(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.
-14-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(d) 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 in the event that (1) ICP desires to incorporate any
such types of tools and functionality into the ICP Internet Site
and/or the ICP Programming and (2) the relevant AOL tools and
technology are [**]with those [**]. The Parties hereby
acknowledge and agree that in no event shall the ICP Internet
Site or ICP Programming contain the tools and technology of any
AOL competitor without the express written consent of AOL.
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 (but in no
event later than five (5) days following notice by AOL) 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; provided that
--------
AOL will not require ICP to remove any such links to areas outside of
the ICP Internet Site that are necessary for ICP to comply with its
ICP Programming obligations under this Agreement.
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.
-15-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
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
forty (40) months from the Effective Date. In the event that ICP's
share of the [**] under this Agreement [**] during the Term, AOL shall
have the right to extend this Agreement for a term of (at its option)
one (1) or two (2) additional years terms (the "Extension Term") by
providing ICP with written notice of such election no later than [**]
prior to the expiration of the Initial Term (the "Extension
Notification Period"). Upon receiving such notification, [**] shall
have [**] to elect whether (a) such Extension Term shall be on the
same terms and conditions contained herein, in which case ICP shall
make quarterly payments to AOL of [**] on the first day of each
calendar quarter of the Extension Term, commencing on the first day of
the Extension Term or (b) such Extension Term shall be without the
Premier Status, without any further [**] (other than any [**]
expressly required by the terms of this Agreement), and without having
any further obligations under Section 1.7 or Section 2 of this
Agreement (collectively, the [**] Extension Decision"). Following
notification by [**] of the [**] Extension Decision, if AOL has
elected to extend the Agreement for a two (2) year Extension Term, it
shall have the option to reduce the length of such Extension Term to
one year by written notification of such decision to CCBN within [**]
of the [**] Extension Decision. During any Extension Term, AOL shall
be entitled to receive [**] of the Advertising Revenues generated
during such Extension Term. Notwithstanding the foregoing, upon the
expiration or earlier termination of this Agreement, AOL may, at its
discretion, continue to promote one or more "pointers" or links from
the AOL Network to an ICP Interactive Site and continue to use ICP's
trade names, trademarks and service marks in connection therewith.
6.2 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;
provided, however, that in the event of the existence of a technical
-------- -------
problem of either Party beyond the reasonable control of such party (a
"Force Majeure Event"), the breaching Party shall have sixty (60) days
to cure such Force Majuere Event before the non-breaching Party shall
have the right to terminate this Agreement; provide, however, that
the breaching party shall use commercially reasonable efforts to cure
such Force Majeure Event as promptly as possible; provided, further,
-------- -------
that in the event of an ICP Force Majeure Event, AOL shall have the
-16-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
right to block access to the ICP Internet Site and to provide the AOL
Members with access to (and promote, market or distribute) the IR
Information of any third party (including, without limitation, any ICP
Competitor) on or through the Premier Areas.
6.3 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.
6.4 Site and Content Preparation.
----------------------------
6.4.1 Certain Definitions
-------------------
(a) As used herein, "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) in accordance with Exhibit A-2;
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, all AOL site testing set forth on Exhibit E)
to prepare the ICP Internet Site, all ICP Programming and
any other related areas or screens to launch on the AOL
Network as contemplated in Exhibit A-2.
(b) As used herein, "[**] 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) in accordance with subpart II-B of
Exhibit A-2.
(c) As used herein, "AOL Failure" means, with respect to
either the Site and Content Preparation Date or the [**]
Deadline Date, AOL's failure: (i) to make [**] available
by such date, (ii) to develop a data retrieval/integration
mechanism appropriate and sufficient to allow ICP to
achieve Site and Content Preparation or [**] Preparation,
as applicable, (iii) to provide ICP the necessary
technical specifications to allow it to achieve Site and
Content Preparation or [**] Preparation, as applicable,
(iv) to develop with ICP the "mutually agreed to plans"
and "[**]
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
specifications documents" referenced in Exhibit A-2, or
(v) to perform its obligations under this agreement.
6.4.2 ICP shall achieve Site and Content Preparation within ninety
(90) days after the Effective Date (the "Site Deadline Date")
and shall achieve [**] Preparation no later than
[**] (the "[**] Deadline Date");
6.4.3 If ICP has not achieved [**] Preparation by the
[**] Deadline (either by providing the necessary
content itself or procuring it from alternative sources),
unless such failure is solely due to an AOL Failure, AOL may
procure the content necessary to allow it to operate its
Personal Finance [**] directly from third party sources. If
such failure is solely due to an AOL Failure, the [**]
Deadline shall be extended by the number of days solely
attributed to such AOL Failure.
6.4.4 In the event ICP has not achieved Site and Content Preparation
within [**] after the Effective Date, then the Impressions
Target set forth in Section 1.6 shall be reduced on a pro rata
basis based on the number of days after such [**] period
that ICP achieves Site and Content Preparation divided by 1183.
In the event ICP has not achieved Site and Content Preparation
within [**]after the Effective Date, then in addition to any
other remedies available, AOL shall have the right to terminate
this Agreement by giving ICP written notice thereof. If ICP is
delayed in achieving Site and Content Preparation due to an AOL
Failure and ICP notifies AOL in writing of such failure and the
resulting delay, then the [**] and [**] periods referenced
in this Section shall each be extended by the amount of time of
ICP's delay solely attributable to such failure by AOL, and AOL
shall [**] for such delay unless and until such applicable
period, as so extended, expires without ICP having achieved
Site and Content Preparation.
6.5 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. 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. Notwithstanding the 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
-18-
and in such event, the disclosing Party will provide at least five (5)
business days prior written notice of such disclosure.
7. TERMS AND-CONDITIONS. The terms and conditions got forth on the Exhibits
--------------------
attached hereto are hereby made a part of this Agreement.
IN WITHIN WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. XXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ---------------------------------
Print Name: Xxxx Xxxxxx Print Name: Xxxxxxx X. Xxxxxx
---------------------- -------------------------
Title: VP - Business Affairs Title: Chairman & CEO
--------------------------- ------------------------------
Date: 12/23/99 Date: 12/23/99
---------------------------- -------------------------------
-19-
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT A-1
-----------
AOL Promotional Obligations
---------------------------
I. Links to the ICP Internet Site
------------------------------
AOL shall provide ICP with integrated placements and promotional links to
the ICP Internet Site within the Personal Finance channel (or any specific
successor thereof) offered on the AOL Service, as follows
-------------------------------------------------------------------------------------------------------
Screen Promotion Type
------ --------------
-------------------------------------------------------------------------------------------------------
[**] Permanent Link
-------------------------------------------------------------------------------------------------------
[**] Contextual link to feed-fed recorded conference calls in newsfeed
area
-------------------------------------------------------------------------------------------------------
[**] Permanent Link
-------------------------------------------------------------------------------------------------------
[**] Via ticker-based feed, contextual link to conference call replays.
-------------------------------------------------------------------------------------------------------
AOL Investment Research Main (or Permanent Link to IR Hub
successor area)
-------------------------------------------------------------------------------------------------------
AOL Keywords Permanent
-------------------------------------------------------------------------------------------------------
[**] Integration of event feed information**
-------------------------------------------------------------------------------------------------------
[**] Permanent link (after SEC Tab)
-------------------------------------------------------------------------------------------------------
[**] Permanent link - newsfeed/text link under related news
-------------------------------------------------------------------------------------------------------
[**] Permanent link - Company Information
-------------------------------------------------------------------------------------------------------
[**] Permanent link - Header field
-------------------------------------------------------------------------------------------------------
[**] Permanent link - Header field
-------------------------------------------------------------------------------------------------------
[**] Permanent link - Header field
-------------------------------------------------------------------------------------------------------
-------------------
/1/ Contingent upon AOL's completion of a redesigned message board
structure, which AOL shall use commercially reasonable efforts to complete by
June 30, 2000.
** AOL will use CCBN'S IR Information if CCBN'S content is technically
compatible with AOL's systems; in any event, all links to IR information will go
to CCBN sites. If CCBN's content is not compatible in AOL's reasonable
discretion (based upon factors including, but not limited to, content quality,
depth, accuracy and technical compatibility), AOL may use a third party for such
IR information.
-20-
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
-------------------------------------------------------------------------------------------------------
[**] Permanent link - Header field
-------------------------------------------------------------------------------------------------------
[**] Permanent link - Deep link search
-------------------------------------------------------------------------------------------------------
[**] Permanent link - Deep link search
-------------------------------------------------------------------------------------------------------
All pages and content provided by ICP must conform to established design
guidelines and technical specifications for the Investment Research area.
All placements will be integrated according to a mutually agreed to roll-out
schedule.
AOL may use third party providers of IR Information in the event that CCBN is
unable to meet the deadlines set forth herein and/or the relevant product
specifications.
II. Links to ICP Programming
------------------------
On its Investment [**] and Investment Research Site (and on each future
site which is a specific successor to one of such sites), AOL shall provide a
contextual, non-branded link to the ICP Site as is farther described as the CCBN
"IR Hub."
On AOL's Investment Snapshots and in its Portfolio Direct (and on each
future site which is a specific successor to one of such sites), AOL will
provide an indexed link to each company-specific "home page" within the CCBN IR
Hub.
From time to time, in its discretion, when companies likely to be of
interest to a large audience are participating in upcoming conference calls
either available or coordinated by ICP, AOL may promote such calls as "Live
Events" on both the Personal Finance Main Screen and in the AOL Live area. Such
guests will be promoted on AOL Live with a brief write-up and with a picture (if
available) and will be branded with "brought to you by StreetEvents" or a
similar, mutually agreed-upon branded promotion of ICP. While not required, ICP
would hope that AOL shall promote ICP-sponsored events pursuant to this
paragraph on no fewer than [**] occasions in each calendar month during the
Term of this Agreement.
-21-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT A-2
ICP Programming and Content Obligations
---------------------------------------
I. General Content
---------------
ICP will provide AOL with access to a number of products and services
including links to company investor relations Sites, access to live and archived
investor conference calls, and access to company event information. ICP's
overall objective is to provide AOL Members access to a xxxxxxxx xxxx of
company-specific, investor-oriented information, as well as to lay the
groundwork for an important forum for companies to communicate directly with the
AOL community. This will be achieved in both an aggregated and disaggregated
(e.g., ticker-based indexed links to events and information) manner.
ICP will make available over the AOL Service, and over other AOL Properties
(as more fully described in Section III below) the ICP Internet Site and the ICP
Programming described in Sections II and III below.
II. ICP Internet Site and ICP Programming
-------------------------------------
ICP will create a customized site to be carried on the AOL Service, under a
domain name co-branded with AOL (e.g.,xxxx.xxx.xxx), tentatively to be called
the "IR Hub". The CCBN-Street Events "IR Hub" site will be the Service's
primary offering for all things related to the investor relations function of
publicly traded companies. The IR Hub developed and maintained by CCBN will
initially have the following as its principal components: a wide variety of live
and recorded company conference calls, event information for such corporate news
as earnings release dates and times, access to company IR web sites, and other
important IR related material -- and may in the future have additional
components appropriate to ICP's current or future business.
The specific design of the IR Hub will be mutually agreed to by the
Parties, provided that the IR Hub shall include the Content described in this
Exhibit A-2 and shall conform to the applicable AOL Property's then-standard co-
branding guidelines for Investment Research, Personal Finance and [**]
partners.
ICP will create the assets described below:
A. Site Assets
----------------
1) Co-branded IR Hub
The central, unified offering of all IR-related material on the Service. This
Hub will contain (as an example) navigation which will allow members to find IR
information on companies of interest, lists of important upcoming events
(calls), lists of important recent events (recorded calls), and other supporting
information.
-22-
Confidential materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omission.
2) IR Pages
These will be ticker-based pages that will be linked to from various company
specific sites and pages (most importantly the AOL Quote and other company
research functions). ICP will endeavor to provide the following, at a minimum:
For Companies that are a part of the following indexes or lists: S&P 500,
AOL Top 100 most popular portfolio symbols, Nasdaq 100, and XxxXxxxxx.xxx
Internet Index (the DOT).
. [**] access to all [**] must be
. [**] access to [**] information for [**]
. [**] to the Company's [**]
. [**] info for [**]
. The established [**] Company [**] etc.)
. Button/Link so that a user can [**] to the
[**]
For Companies that are outside the indexes and lists above:
. [**] (both [**])from [**] (if available)
. [**] Company's [**] (if available)
. Basic contact info for IR Department
. The established [**] Company
company [**] etc.)
. [**] so that a user can [**]
(when possible)
ICP reserves the right to add or delete specific information to or from
each Company Site during the term of the Agreement, as long as it is in keeping
with this basic array of information.
3) A system for contextual newsfeed publication.
This system will permit AOL to publish recently recorded conference calls and
other IR news-related events within its contextual newsfeed displays. This
system should permit AOL to update its displays in [**]
as possible - and at a minimum will be updated once a day.
-23-
Confidential Materials Omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omission.
B. [**] Assets
----
ICP shall create the following assets by the [**] Deadline Date,
subject to the limitations as described in Section 6.4:
1) A Co-branded, centralized Personal Finance [**]
This will be a co-branded, AOL/StreetEvents centralized Personal Finance
[**]that includes access to [**] information for companies including [**]
subjects, [**] as well as non-company specific [**].
The [**] will include the following features:
. [**], which includes [**] for the [**] for each of the [**]
based on a [**]. Companies that should be [**]
the companies [**]
. [**]for each of the [**] that includes [**] for that
[**], with relevant information based on [**]
. [**] - Ability to [**] for [**] by [**]
. [**] - ability to [**]for [**] by [**] (both
[**]).
. From [**] the [**] pages, provide [**] to respective [**]
that [**]. For example, a [**] will have a [**] to a page that
[**] and provides audio access, if available. [**] will include
[**]. Examples include:
. [**] will [**] to [**]
. [**] will go to [**]
The specific design of the [**] will be as mutually agreed upon by AOL and ICP,
but in any event, will conform to AOL's standard layout, branding and look and
feel requirements as they apply to similarly situated premier providers of
content for the Investment Research are of AOL
-24-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Personal Finance and as they are defined in a detailed [**] specifications
document to be provided to ICP by AOL.
2) A dynamic system which will feed IR information to AOL's various
[**] operations
This system will allow for the creation of a [**] of upcoming [**] and other
important IR events. This system should allow for, at a minimum, daily updates.
Linking information should be included. CCBN shall provide a feed to AOL that
can be integrated into an individual's [**] page. The feed will include [**] and
[**]. [**] shall mean the [**] underwritten public offering of common stock of a
corporation registered pursuant to the Securities Act of 1933, as amended,
resulting in aggregate cash proceeds (prior to underwriters' commissions and
expenses) of more than [**]
3) Feeds to other areas on the AOL Service.
ICP will provide, in an approved AOL format, information suitable for
integration into AOL's [**] product (e.g., announcements of upcoming
[**] for different companies), [**] (e.g., [**] announcements) and
[**] (e.g., [**] schedules).
C. Company Site and Keywords.
--------------------------
ICP will provide and maintain a Company Site for each of the companies on the
indexed lists, as well as selected others that maintain a commercial business
relationship with CCBN, and links to such Site within the ICP Internet Site.
AOL and ICP will work together to create standardized keywords that AOL and
CompuServe members can easily remember (e.g. Intel IR, Amazon IR, General
Motors IR). Keywords for Companies will link directly to the Company Site
within the ICP Internet Site for such Company.
D. Investor Education
------------------
ICP and AOL agree that educating investors as to the purpose of conference
calls, the quarterly earnings cycles, analyst estimates and their role in the
process, etc. will be critical toward building value and regular usage to the
ICP Internet site. Both ICP and AOL agree to sponsor education-oriented
material in the IR Hub, and on the AOL Service generally, to educate investors.
Anything else in this Agreement notwithstanding, ICP will not be obligated
to make any information available through the IR Hub which it does not
reasonably believe it has the legal right to make available. All information
which is made available through the IR Hub is subject to the approval of the
owner of the copyright in such information, which may be the relevant Available
Company or a third party data provider. (Current third parties which feed data
to ICP, and which may, therefore,
-25-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
hold the copyright in relevant information include, [**] and [**]
III. Other AOL Properties
--------------------
A. Netcenter
ICP shall create a version of the ICP Internet Site customized for
distribution through Netcenter (the "Netcenter ICP Site"). ICP will:
(a) develop the Netcenter ICP Site as a "cul de sac" site containing no links
outside of the Netcenter ICP Site other than to Netcenter, other AOL or
third party Content determined by AOL, or advertisements permitted under
this Agreement,
(b) display on each page of the Netcenter ICP Site, headers and footers of size
and type determined by AOL and which contain branding of both the Netcenter
and ICP, links to Netcenter, a Netcenter search box and two (2) promotional
spaces to be programmed by AOL,
(c) program each page of the Netcenter ICP Site with a co-branded domain name
(e.g., xxxx.xxxxxxxxx.xxx),
(d) cause the Netcenter ICP Site to match the look and feel of Netcenter, and
(e) co-brand the Netcenter ICP Site (and the versions of StreetEvents-on-AOL
and the IR Hub contained thereon) according to the co-branding requirements
relevant to Netcenter.
(f) upon receiving further details from AOL, use commercially reasonable
efforts to participate in the "Netscape Now Affiliate Program."
The Netcenter ICP Site shall contain Content of substantially the same
quality, scope, functionality, terms and conditions as the Content on the ICP
Internet Site as described on this Exhibit A-2, and ICP's obligations with
respect to the Netcenter ICP Site will be the same as its obligations with
respect to the ICP Internet Site. In general, all terms and conditions of this
Agreement applicable to the ICP Internet Site shall apply to the Netcenter ICP
Site except as expressly otherwise stated.
B. CompuServe
ICP shall create a version of the ICP Internet Site customized for
distribution through CompuServe (the "CompuServe ICP Site"). ICP will:
-26-
(a) develop the CompuServe ICP Site as a "cul de sac" site containing no links
outside of the CompuServe ICP Site other than to CompuServe, other AOL or
third party Content determined by AOL, or advertisements permitted under
this Agreement,
(b) display on each page of the CompuServe ICP Site, headers and footers of
size and type determined by AOL and which contain branding of both the
CompuServe and ICP, links to CompuServe, a CompuServe search box and two
(2) promotional spaces to be programmed by AOL,
(c) program each page of the CompuServe ICP Site with a co-branded domain name
(e.g., xxxx.XxxxxXxxxx.xxx),
(d) cause the CompuServe ICP Site to match the look and feel of CompuServe, and
(e) co-brand the CompuServe ICP Site (and the versions of StreetEvents-on-AOL
and the IR Hub contained thereon) according to the co-branding requirements
relevant to CompuServe.
The CompuServe ICP Site shall contain Content of substantially the same quality,
scope, functionality, terms and conditions as the Content on the ICP Internet
Site as described on this Exhibit A-2, and ICP's obligations with respect to the
CompuServe ICP Site will be the same as its obligations with respect to the ICP
Internet Site. In general, all terms and conditions of this Agreement
applicable to the ICP Internet Site shall apply to the CompuServe ICP Site
except as expressly otherwise stated.
-27-
EXHIBIT B - DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
-----------
Advertising Revenues. Aggregate amounts collected by AOL or AOL's agents, as
--------------------
the case may be, arising from the license or sale of AOL Advertisements, less
fifteen percent (15%) sales costs.
Affiliate. Any agent, distributor or franchise 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 brand service and any other CompuServe products or services,
(d) Netscape Netcenter(TM) and any other Netscape(R) products or services, (e)
"ICP(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.
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 Members. Authorized users (including any sub-accounts under an authorized
-----------
master account) of the AOL Network.
AOL Network. (i) The AOL Service and (ii) 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).
AOL Properties. 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, the CompuServe
Service and the Netscape Web Site.
AOL Purchaser. Any person or entity who enters the ICP Internet Site or the ICP
-------------
Programming from the AOL Network including, without limitation, from any third
party area therein (to the extent entry from such third party area is traceable
through both Parties' commercially reasonable efforts), and generates
Transaction Revenues (regardless of whether such person or entity provides an
e-mail address during registration or entrance to the ICP Internet Site which
includes a domain other than an "XXX.xxx" domain); provided that any person or
entity who has previously satisfied the definition of AOL Purchaser will remain
an AOL Purchaser, and any subsequent purchases by such person or entity (e.g.,
as a result of e-mail solicitations or any off-line means for receiving orders
requiring purchasers to reference a specific promotional identifier or tracking
code) will also give rise to Transaction Revenues hereunder (and will not be
conditioned on the person or entity's satisfaction of the requirements set forth
before the above proviso).]
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 1933,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more titan 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, narrow-band U.S. version of the CompuServe
------------------
brand service, specifically excluding (a) any international versions of such
service, (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 "subservice," (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, classified or other search, directory or
review services or Content and (f) any co-branded or private label branded
version of the U.S. version of the CompuServe brand service, (g) any
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version of the U.S. version of the CompuServe brand service which offers
Content, distribution, services and/or functionality materially different from
the Content distribution, services and/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 and (h) any property, feature,
product or service which CompuServe or its affiliates may acquire subsequent to
the Effective Date.
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, pointers, technology and software.
ICP Competitor. A third party that provides company investor relations or event
--------------
information to the investment community, as well as those parties listed on
Schedule 1.8 hereof. The Parties may, from time to time, expand the list of ICP
Competitors on Schedule 1.8 by mutual agreement
ICP Interactive Site. Any interactive site or area (other than the ICP Internet
--------------------
Site), including any mirrored site or area, which is managed, maintained, or
owned by (or which is under the substantial control of) ICP or its agents ,
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. The customized, co-branded Internet site and Content, to be
-----------------
located at URL:http//xxx.xxxx.xxx.xxx, which is managed, maintained or owned by,
ICP or its agents or to which ICP licenses information, content or other
materials to AOL and/or AOL Members, as set forth in 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 form, describes or promotes ICP or
ICP's
Content
ICP Technical Problem. "ICP Technical Problem" shall have the meaning set forth
---------------------
in Section 3 of Exhibit E hereto.
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, any co-branded site or page 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.
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.
Institutional Investor Interactive Site. Any password-protected portion of any
---------------------------------------
ICP Interactive Site targeting brokers, broker-dealers, brokerages and/or
institutional investors that is not accessible to the general consumer (i.e.,
non-high net-worth individual investor) market. This definition is subject to
alteration upon mutual agreement of the Parties.
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
mail 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.
IR Information. Corporate event calendar information, audio, video or
--------------
accompanying PowerPoint presentations of company-sponsored investor-related
events, and aggregated collections of links to: corporate investor relations web
sites, stock reports, corporate press release information, corporate news
analysis and commentary and corporate news stories. The Parties may, from time
to time, mutually agree to expand the definition of "IR Information."
Keyword(TM) Search Terms. The Keyword-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) (e.g., "CCBN", "IR IBM" or "IR
AOL").
Linked Interactive Site. Any site or area outside of the AOL Network which is
-----------------------
linked to ICP Programming (through a
-29-
"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.
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, but excluding
Content that is provided to ICP by non-affiliated third parties, over which ICP
maintains no editorial control (e.g., the content within Company conference
calls),
Netscape Web-Site. The collection of local language HTML documents targeted at
-----------------
end users in the territory programmed and controlled exclusively by Netscape
Communications Corporation and freely accessible to the public via the Internet
at the URL xxxx://xxxx.xxxxxxxx.xxx (or any successor address designated from
------------------------
time to time by Netscape Communications Corporation), but specifically excluding
(a) the AOL Service and the CompuServe Service, (b) XXX.xxx and XxxxxXxxxx.xxx,
(c) any international versions of such site, (d) "ICP," "AOL Netfind(TM)," "AOL
Instant Messenger," "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 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" brand,
by virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-banded versions and any version
distributed through any broadband distribution platform or through any platform
or device other titan a desktop personal computer (e.g. Custom Netcenter built
specifically for third parties).
Premier Areas. The Personal Finance Channel of the AOL Service. This definition
-------------
is subject to alteration upon mutual agreement of the Parties.
Prime Rate. The prime commercial lending rate as published in the Wall Street
----------
Journal, such rate to be adjusted automatically without notice on the effective
date of any change in such rate.
Product. 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., c-mail offers), or (iii) an "offline" means (e.g., toll-free
number) 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).
Term. The period beginning on the Effective Date and ending upon the expiration
----
or earlier termination of this Agreement.
Transaction Revenues. Aggregate amounts paid by AOL Purchasers in connection
--------------------
with the sale, licensing, distribution or provision of any Products, including,
in each case, handling, shipping, service charges, and excluding, in each case,
(a) amounts collected for sales or use taxes or duties and (b) credits and
charge backs for returned or canceled goods or services, but not excluding cost
of goods sold or any Similar cost.
Unrestricted Interactive Site. Any ICP Interactive Site, except for (a) any ICP
-----------------------------
Interactive Site over which ICP does not exercise substantial operational
control, (b) any ICP Interactive Site on which a third party having ancillary
control over the content of such site reasonably objects to a promotion of AOL
or (c) any Institutional Investor Interactive Site.
-30-
EXHIBIT C - STANDARD LEGAL TERMS AND CONDITIONS
-----------------------------------------------
I. AOL NETWORK
Content. ICP represents and warrants that all Content provided by ICP to AOL or
-------
any AOL Members within or through the ICP Internet Site (but excluding third-
party Content merely linked to by ICP through the ICP Internet Site), all 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, lights 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. 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. 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, battered, 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.
Contests. ICP shall use all reasonable efforts to 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. ICP shall provide AOL with (i) at least thirty (30) days prior
written notice of any Contest and (ii) upon AOL's request, an opinion from ICP's
counsel confirming that the Contest complies with all applicable federal, state
and local laws and regulations.
Disclaimer. Upon AOL's request, ICP agrees to include within the ICP Internet
----------
Site 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.
Expert/Specialist Content. If any of the Licensed Content professes to provide
-------------------------
expert, professional or other specialty advice or Content (such as, without
limitation, medical or psychological, religious, financial, etc.), ICP shall use
commercially reasonable efforts to ensure that all such Licensed Content is
prepared or reviewed by licensed, insured and qualified
practitioners/professionals in such field with expertise on the particular topic
and such Licensed Content complies with applicable standards of the applicable
profession and all applicable laws and regulations. Upon request by AOL from
time to time, ICP shall provide AOL with evidence reasonably satisfactory to AOL
of proper licensure and compliance with the foregoing sentence.
Insurance. At all times during the Term, ICP shall maintain an insurance policy
---------
or policies reasonably satisfactory to AOL and adequate in amount to insure ICP
against all liability associated with the Licensed Content. ICP shall provide
AOL with a copy of such policy or policies within thirty (30) days after the
Effective Date, failing which, in addition to all other available remedies, AOL
shall be entitled to delay the launch of the Licensed Content on the AOL
Network. ICP shall promptly notify AOL of any material adverse change in such
policy or policies.
Rewards Program. ICP shall not offer, provide, implement or otherwise make
---------------
available on the ICP Internet Site or ICP Programming (without AOL's prior
written consent) any promotional programs or plans that am intended to provide
-31-
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 (i) is provided
exclusively through AOL's "AOL Rewards" program accessible on the AOL Service at
Keyword. "AOL Rewards" or (ii) is not competitive with the AOL Rewards Program,
and (unless otherwise agreed upon by AOL) is provided in conjunction with the
AOL Rewards program. Notwithstanding the foregoing, ICP shall use commercially
reasonable efforts to incorporate the AOL Rewards program into the ICP Internet
Site.
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.
Operation. 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.
Classified. 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 is reasonably
likely to 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. Neither party shall make, publish, or otherwise
------------------------------
communicate through the AOL Network any deleterious remarks concerning the other
party AOL or its Affiliates, directors, officers, employees, or agents
(including, without limitation, its business projects, business capabilities,
performance of duties and services, or financial position) which remarks am
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.
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 Xxxxx, 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 within thirty (30) days after the receipt of the
appropriate invoice. 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. With respect to any routine production, maintenance or
related services which AOL reasonably determines are necessary for AOL to
perform in order to support the proper functioning and integration of the Anchor
Tenant Button and the ICP Internet Site ("Routine Services"), ICP will pay the
then-standard fees charged by AOL for such Routine Services.
Production Tool. AOL shall determine in its sole discretion, which of its
---------------
proprietary publishing tools (each a "Tool") shall be made available to ICP in
order to develop and implement the Licensed Content during the Term. ICP shall
be granted a nonexclusive license to use any such Tool, which license shall
-32-
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 is participation in any AOL training programs (including AOL's travel and
lodging costs when training is conducted at ICP's offices).
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 subject to availability and to AOL's approval. AOL reserves the right
to revoke at any time, for good cause (in AOL's sole discretion), ICP's use of
any Keyword Search Terms that do not incorporate trademarks of ICP (e.g., "AOL
Keyword: IR IBM"). ICP acknowledges that its utilization of a Keyword
Search Terms 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 trademark independent of the Keyword Search
Tenn. 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.
Accounts. To the extent AOL has granted ICP any accounts on the AOL Service,
--------
ICP will be responsible for the actions taken under or through its accounts,
which actions are subject to AOL's applicable Terms of Service and for any
surcharges, including, without limitation, all premium charges, transaction
charges, and any applicable communication surcharges incurred by any account
issued to ICP, but ICP will not be liable for charges incurred by any account
relating to AOL's standard monthly usage fees and standard hourly charges, which
charges AOL will bear. Upon the termination of this Agreement, all accounts,
related screen names and any associated usage credits or similar rights, will
automatically terminate. AOL will have no liability for loss of any data or
content related to the proper termination of any such account
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" 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
-33-
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, and who are under obligations of confidentiality appropriate to
protect the interests of the Parties hereunder (including, without limitation,
the obligations set forth in 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. Also notwithstanding the foregoing, either Party may disclose
Confidential Information to its current or bona fide prospective investors,
investment bankers, lenders, accountants and attorneys, in each case only where
such persons or entities are under obligations of confidentiality appropriate to
protect the interests of the Parties hereunder (including, without limitation,
the obligations set forth in this section).
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 over the AOL Network shall (i)
-34-
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 THE ICP INTERNET SITE, ANY ICP PROGRAMMING OR ANY LICENSED CONTENT 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 BY EITHER PARTY 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,
THE ICP INTERNET SITE, THE ICP PROGRAMMING, ANY LICENSED CONTENT 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 THE AOL
NETWORK, THE ICP PROGRAMMING 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
-35-
Party and its counsel in the defense against such Action and the Indemnifing
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 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 proprietary rights, including but
not limited to intellectual property and confidentiality, 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 considered Confidential Information under
this Agreement.
(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
-36-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
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 [**]
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, subject to strict confidentiality
restrictions, to conduct a reasonable and necessary copying and inspection of
portions of the Records of ICP that are directly related to amounts payable to
the Party requesting the audit pursuant to this Agreement. 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, either party shall be entitled to provide the other 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 personalty 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. 703-
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, such notice will be provided to ICP's President (fax no. 000-000-0000,
email xxxxxx@xxxx.xxx) at the address for ICP set forth in the first paragraph
of this Agreement. The relevant notice information set forth in this paragraph
with respect to either party may be changed by such party via notice to the
other pursuant to this paragraph.
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 Parties 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, with certification of the same by an officer of the destroying Party
(at the option of the Party receiving the request) all Confidential Information,
documents, manuals and other materials of 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, including its main body and all exhibits and
----------------
schedules thereto, sets forth the entire
-37-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
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, [**].
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 to any Interactive Service without the prior
written consent of AOL. Assumption of this Agreement by any successor to ICP
that is an Interactive Service (including, without limitation, by way of merger
or consolidation) shall be subject to AOL's prior written approval. In the
event of any Change of Control of ICP resulting in control of ICP by an
Interactive Service, AOL shall have the right to terminate this Agreement upon
written notice to ICP. In the event of any Change of Control of AOL resulting
in control of AOL by an ICP Competitor, ICP shall have the right to terminate
this Agreement upon written notice to AOL. 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 component of its programming obligations under this Agreement
or any work for which such consultant or subcontractor receives in excess of
[**] in any one year, 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 State of New
York. Each of the Parties hereby irrevocably consents to the exclusive
jurisdiction of any federal or state courts located within the State of New York
over any and at actions and claims arising under this Agreement, as well as any
actions to enforce such claims or to recover damages or other relief in
connection with such claims and waives any objection of forum non conveniens and
----- --- ----------
any objection to venue to any action instituted hereunder.
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 property 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.
-38-
EXHIBIT D
---------
[INTENTIONALLY OMITTED]
-39-
EXHIBIT E
---------
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 arc appropriate for the client software then in use by AOL Members;
and (b) the ICP Internet Site is designed and populated in a manner that is
reasonably likely to minimize delays when AOL Members attempt to access
such site. At a minimum, ICP will use commercially reasonable efforts to
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 fight 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.
-40-
5. Security. ICP will utilize Internet standard encryption technologies
--------
(e.g., Secure Socket Layer - SSL) that are intended 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 use commercially
reasonable efforts to 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 materially new functionality or features through
the ICP Internet Site ("New Functionality"), ICP will use commercially
reasonable efforts to (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.
-41-
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.
-42-
EXHIBIT F
---------
KEYWORD GUIDELINES
------------------
PRINT/GRAPHIC
. Preferred listing: (AOL Logo appears) America Online Keyword:
IR America Online Keyword: IR
. If necessary, due to space constraints, listing may (pending approval)
---
appear as follows:
AOL Keyword: IR
. 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: IR"
AOL must approve all other uses by ICP of any AOL (or AOL Property) logo,
trademark, trade name or other proprietary term prior to such usage.
-43-
EXHIBIT G
Warrant Agreement
[Attached]
-44-
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE 1.5
------------
Carriage Fee Payments*
----------------------
-----------------------------------
Total Payments $14,100,000.00
Months 40
-----------------------------------
DATE Payment ($)
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
Notes
-----
. Upon any IPO or financing event prior to the Q4 payment, payments
will accelerate so that CCBN is always 1 quarter ahead.
. *Upon the closing of any public offering of ICP's common stock (an
"IPO") before June 1, 2000, the payment due on September 1, 2000 (as
set forth above and as defined below) shall be due and payable within
fifteen (15) days following such IPO, and the due dates for the
remaining payments set forth above shall be accelerated by (a) nine
months (in the event of an IPO during the period beginning December 1,
1999 and ending February 29, 2000), (b) six (6) months (in the event
of an IPO during the period beginning March 1, 2000 and ending May
31, 2000), or (c) three (3) months (in the event of an IPO during the
period beginning June 1, 2000 and ending August 31, 2000).
-45-
SCHEDULE 1.8
------------
List of ICP Competitors
-----------------------
C-call (Street Fusion)
V-call (Investor Business Network)
Multex
Xxxxxxxxx.xxx
P R Newswire
Business Wire
Direct Report
Xxxxxxx Corporation
Prime Zone
Xxxxxxxxxxx
Net Earnings
-46-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE 4.2
------------
ICP's Advertising Revenue Share
-------------------------------
Advertising Revenues AOL% ICP%
-------------------- ---- ----
--------------------------------------------
[**] [**] [**]
* Percentages above apply only to the specific incremental amount, not to the
aggregate amount (i.e., for the range between [**] AOL shall receive [**]
of the gross advertising sales falling within such range, and [**] of the
gross advertising sales in the [**] range).
-47-
