CONFIDENTIAL
AMENDMENT TO INTERACTIVE SERVICES AGREEMENT
--------------------------------------------
This Amendment to the Interactive Services Agreement ("Amendment"),
effective as of May 23, 2001 (the "Amendment 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 xXxxxx.xxx, Inc. ("Interactive Content Provider" or "ICP"), a
Delaware corporation, with its principal offices at 0000 Xxxxxxxxx Xxxx.
Xxxxxxxxx Xxxxx, XX 00000 (each a "Party" and collectively the "Parties").
INTRODUCTION
------------
AOL and ICP entered into an Interactive Services Agreement effective as of
November 23, 2000 (the "Agreement"). Capitalized terms used in this Amendment
without other definition are defined as in the Agreement. In light of both
parties' desire to amend certain terms of the Agreement, the parties hereby
agree as follows:
TERMS
-----
The Agreement is amended to provide that references in the Agreement to
"this Agreement" or "the Agreement" (including indirect references such as
"hereunder," "hereby," "herein" and "hereof") shall be deemed to be references
to the Agreement as amended by this Amendment.
1. Section 1.5 is hereby amended by deleting the reference to
"$10,921,000" and replacing it with the new carriage fee of
"$10,892,227".
2. Section 3.1 is hereby amended by inserting the following sentence at
the end of the paragraph: "AOL will make good faith efforts to deliver
to ICP the monthly usage reports within fifteen (15) days following the
month that the report covers. AOL will also make good faith efforts to
provide ICP with mid-month reporting (i.e., by the third week of each
month) on the content integration Impressions on the AOL Service only
(i.e., excluding the non-Media Impressions and Impressions on another
AOL Property)."
3. Section 4.3 is hereby amended by inserting the following clause at the
end of the last sentence in the section: ", unless ICP can demonstrate
to AOL that the Transaction Revenues were generated from ICP's E-mail
newsletter in which case ICP shall pay AOL [_______________] of those
Transaction Revenues.
4. Exhibit A is hereby amended by replacing the entire Exhibit A (i.e., A-
1.1 and A-1.2) with the new Exhibit A which is attached hereto. For
avoidance of doubt, prior to the Amendment Effective Date, AOL's
carriage obligation was with respect to the Exhibit A attached to the
Agreement and from and after the
Amendment Effective Date, such obligation is with respect to the
Exhibit A attached hereto.
5. Exhibit D is hereby amended by changing the last payment (i.e.,
10/01/02 payment) on Exhibit D from "$379,598" to "$350,825.68" and by
changing the reference to total payments from "$10,921,000 to
"$10,892,227".
This Amendment does not, and shall not be construed to, modify any term or
condition of the Agreement other than those specific terms and conditions
expressly referenced in this Amendment. Except as herein provided, the
Agreement shall remain unchanged and in full force and effect. In the event of
any inconsistency or discrepancy between the Agreement and this Amendment, the
terms and conditions set forth in this Amendment shall control. This Amendment
may be executed in multiple counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same document.
[Signature Block on Next Page]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
AMERICA ONLINE, INC. XXXXXX.XXX, INC.
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------- -----------------------------
Print Name: Xxxxxxxx X. Xxxxx Print Name: Xxxxxxxxx X. Xxxxx
-------------------- ---------------------
Title: V.P. Business Affairs Title: V.P. of Operations
------------------------- --------------------------
Date: 6/13/01 Date: 5/23/01
-------------------------- --------------------------
2
EXHIBIT A
---------
Exhibit A-1.1: Carriage Plan broken out by AOL Property (beginning 5/23/01)
AOL Channel / Promotional Placement Placement Type Impressions
Property Subchannel
-----------------------------------------------------------------------------------------------------
AOL Women's Wellness/Main Rotating Text [_________]
Promotion
Women's Wellness/Diet Permanent Anchor [_________]
Tenant
Women's Wellness/Diet Rotating Text Link [_________]
Women's Wellness/Fitness Rotating Text Link [_________]
Women's Wellness/Diet Focus Rotating Text Link [_________]
-----------------------------------------------------------------------------------------------------
CompuServe Health & Fitness Main Permanent text link [_________]
Health & Fitness Nutrition/Main Permanent text link [_________]
Health & Fitness Diet Central/Main Permanent text link [_________]
Health & Fitness Body Mass Index Permanent teaser link [_________]
Calculator
Health & Fitness Scoop on Slimming Permanent Text Link [_________]
Health & Fitness Dietary Guidelines Permanent Text Link [_________]
Health & Fitness Losing Weight Safely Permanent Text Link [_________]
Health & Fitness My Resolutions Permanent Text Link [_________]
Health & Fitness Weight Ranges Permanent Text Link [_________]
Health & Fitness New Year New You Permanent Text Link [_________]
-----------------------------------------------------------------------------------------------------
Netscape Health Food and Nutrition Center Column Feature [_________]
-----------------------------------------------------------------------------------------------------
3
Exhibit A-1.2: Media Plan (beginning 5/23/01)
AOL Service FLIGHT TOTALS
----------- ------------------ -----------
Copy Size START END IMPS
--------- -------- ------- -----------
Dieting and Weight Loss 234x60 5/23/01 1/23/03 [_________]
Dieting and Weight Loss RPL text 5/23/01 1/23/03 [_________]
Fitness & Sports Medicine 234x60 5/23/01 1/23/03 [_________]
Fitness and Sports Medicine RPL text 5/23/01 1/23/03 [_________]
Bonus ROS Impressions 5/23/01 1/23/03 [_________]
Men's Health 234x60 9/30/01 1/23/03 [_________]
Men - AOL - Sporting Life RPL text 9/30/01 1/23/03 [_________]
Men - AOL - Fitness 234x60 9/30/01 1/23/03 [_________]
Men - AOL - Fitness: RPL text 9/30/01 1/23/03 [_________]
Men - AOL - Guy Talk 234x60 9/30/01 1/23/03 [_________]
Men - AOL - Sporting Life 88x31 9/30/01 1/23/03 [_________]
Men - AOL - Style 234x60 9/30/01 1/23/03 [_________]
Mens Health Related Product Link text 9/30/01 1/23/03 [_________]
Premium Diet and Nutrition Health 234x60 5/23/01 1/23/03 [_________]
Package {5100009869}
Premium Eating Well Health Package 234x60 5/23/01 1/23/03 [_________]
{5100010115}
Run of AOL Network {5100494501} (MULTI) 5/23/01 1/23/03 [_________]
Wellness Center - Main - Diet & Fitness 88x31/120x60 5/23/01 1/23/03 [_________]
Women: Diet Focus RPL text 5/23/01 1/23/03 [_________]
Women: Diet RPL text 5/23/01 1/23/03 [_________]
Women: Fitness RPL text 5/23/01 1/23/03 [_________]
Women: Wellness RPL text 5/23/01 1/23/03 [_________]
Sub Total [_________]
Netscape FLIGHT TOTALS
-------- ------------------ -----------
Copy Size START END IMPS
--------- -------- ------- -----------
Netscape - Health - Diet and Nutrition 141x60 5/23/01 1/23/03 [_________]
Netscape - Health - Exercise and Fitness 194x15 5/23/01 1/23/03 [_________]
Sub Total [_________]
Oxygen Media FLIGHT TOTALS
------------ ------------------ -----------
Copy Size START END IMPS
--------- -------- ------- -----------
Oxygen - AOL - Thriveonline - Fitness 468x60 5/23/01 1/23/03 [_________]
Oxygen - XXX.xxx - Xxxxxx.xxx - Diet 468x60 5/23/01 1/23/03 [_________]
4
Oxygen Media FLIGHT TOTALS
------------ ------------------ -----------
Copy Size START END IMPS
--------- -------- ------- -----------
Oxygen - XXX.xxx - Thriveonline - 120x60 5/23/01 1/23/03 [_________]
Fitness
Oxygen - Crossbrand - Thriveonline - 120x60 5/23/01 1/23/03 [_________]
Weight
Oxygen - Public - Thriveonline - 120x60 5/23/01 1/23/03 [_________]
Nutrition
Oxygen - Public - Thriveonline - 468x60 5/23/01 1/23/03 [_________]
Nutrition
Total [_________]
All of the above Impressions listed by category/area and number are only
estimates and are not to be construed as a line item guarantee. These are only
good faith estimates of the likely number of Impressions that may be generated
in a particular channel or area.
All necessary artwork for banner advertisements ("Banner Ads") must be
provided by ICP at least three (3) business days prior to the start date
for such Banner Ads. AOL may alter or shorten the flight dates for the
Banner Ads if advertising materials are not provided in a timely manner.
In the event the Media Impressions Target, or the corresponding impressions
for any specific Banner Ad, are reached prior to the expiration of the
Term, AOL may, at its option, discontinue display at such earlier time.
AOL reserves the right to alter ICP flight dates to accommodate trafficking
needs or other operational needs. In such cases, AOL will make available
to ICP reasonably equivalent flight(s). The Impressions line items in the
Media Plan are good faith estimates and are not firm commitments for each
respective placement.
Subject to ICP's reasonable approval, AOL shall have the right to fulfill
its promotional commitments with respect to the Banner Ads by providing ICP
with comparable placements of the Banner Ads in alternative areas of the
AOL Network.
Rotational Placements set forth above are contingent upon ICP not requiring
AOL Users to register or pay to access the Content linked from such
Rotational Placements.
5
