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EXHIBIT 10.7
AMENDED AND RESTATED
MARKETING AGREEMENT
THIS MARKETING AGREEMENT (the "Agreement") is made this ____
day of April, 1998 between Real Media, Inc., a Delaware corporation (the "Real
Media USA"), PUBLIGroupe S.A. and Real Media S.A., a company organized under the
laws of Switzerland ("Real Media CH", together with PUBLIGroupe S.A., the
"European Companies").
BACKGROUND
WHEREAS, Real Media USA and PUBLIGroupe S.A. had entered into
a Marketing Agreement (the "Marketing Agreement"), Stock Purchase and
Stockholders Agreement (the "Stock Purchase Agreement"), a Voting Agreement (the
"Voting Agreement"), and a Non-Competition Agreement (the "Non-Competition
Agreement" and collectively with the Stock Purchase Agreement and the Voting
Agreement, the "Operative Agreements"), each dated as of the 3rd day of
December, 1996; and
WHEREAS, Real Media USA will, subject to the terms and
conditions set forth herein, provide advertising operating system support
services to Real Media CH or its affiliates; and
WHEREAS, the parties hereto wish to amend and restate in
entirety their entire understanding with respect to the Marketing Agreement, and
the parties are willing to execute this Agreement and to be bound by the
provisions thereof.
NOW, THEREFORE, in consideration of the covenants set forth
herein, and intending to be legally bound hereby, the parties agree as follows:
AGREEMENT
1. REPRESENTATIONS OF REAL MEDIA USA. Real Media USA
represents and warrants to the European Companies that it is not a party to any
confidentiality or other agreement or restriction that would restrict or
interfere with its performance of this Agreement. Real Media USA further
represents and warrants to the European Companies that this Agreement
constitutes a valid and binding agreement enforceable according to its terms
against Real Media USA.
2. REPRESENTATIONS OF THE EUROPEAN COMPANIES. The European
Companies represent and warrant to Real Media USA that they are not parties to
any confidentiality or other agreement or restriction that would restrict or
interfere with its performance of this Agreement. The European Companies further
represent and warrant to Real Media USA that this Agreement constitutes a valid
and binding agreement enforceable according to its terms against the European
Companies.
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3. CROSS MARKETING AGREEMENT.
(a) Real Media USA shall place all advertising with online
content providers using the Technology (as such term is defined below) located
within or specifically targeting the European Market (as such term is defined in
the Non-Competition Agreement) through the European Companies. Pricing for such
placements shall be upon most favorable terms.
(b) The European Companies shall place all advertising with
online content providers using the Technology located within or specifically
targeting the North American Market (as such term is defined in the
Non-Competition Agreement) through Real Media USA. Pricing for such placements
shall be upon most favorable terms.
(c) Real Media USA agrees to use its best efforts to
establish the Real Media Technology (as defined below) with online content
providers located within or specifically targeting the North American Market.
(d) The European Companies agree to use its best efforts to
establish the Real Media Technology with online content providers located within
or specifically targeting the European Market.
(e) As used herein, "Real Media Technology" means all
computer software, source code and systems created, modified, or enhanced by
Real Media USA relating to the development and operation of its AdStream
technology and all other software, source code and systems which shall be
developed during the applicable periods which relates to Online and Interactive
Content Management. As used herein, "Online and Interactive Content Management"
shall mean systems relating to the planning, placement and execution of
advertising and advertising campaigns; systems relating to the management of
editorial content on online or other interactive media; systems relating to the
networking of online or other interactive media; and any other similar systems.
As used herein, "Technology" shall mean Real Media Technology and any other
similar technologies relating to Online and Interactive Content Management.
(f) Compliance with this Section 3 shall not constitute a
breach or violation of the Non-Competition Agreement.
4. OBLIGATIONS OF REAL MEDIA USA.
(a) Real Media USA shall provide to the European Companies
all technical back-up support reasonably required by the European Companies
(b) Real Media USA shall use reasonable good-faith efforts
to establish and maintain an information and technology infrastructure to
facilitate communications among Real Media USA and the European Companies (an
"Intranet"). Once established, each
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party shall be responsible for its own costs for use of such Intranet (not to
include routine maintenance, which cost shall be borne by Real Media USA).
(c) Real Media USA shall coordinate marketing efforts with
the European Companies in Real Media USA's reasonable discretion for the purpose
of developing the "Real Media" brands in the North American and European
Markets.
(d) Real Media USA shall give the European Companies a
reasonable first bid on goods and services required by Real Media USA, which
Real Media USA reasonably believes may be efficiently provided by the European
Companies.
(e) Real Media USA shall provide those additional services
as the parties may determine according to subsequent joint marketing
implementation agreements.
5. OBLIGATIONS OF THE EUROPEAN COMPANIES.
(a) The European Companies shall coordinate marketing
efforts with Real Media USA in the reasonable discretion of the European
Companies for the purpose of developing the "Real Media" brand in the North
American and European Markets.
(b) The European Companies shall give Real Media USA a
reasonable first bid on goods and services required by the European Companies
which The European Companies reasonably believe may be efficiently provided by
Real Media USA.
(c) The European Companies shall provide those additional
services as the parties may determine according to subsequent joint marketing
implementation agreements.
6. TERMINATION; RENEWAL. This Agreement shall terminate and
expire on November 30, 2003, provided, however, that unless written notice is
delivered to all other parties to this Agreement no later than ninety (90) days
prior to the expiration date hereof, such expiration date shall be automatically
extended for an additional one-year period.
7. REMEDIES. Real Media USA on the one hand and the European
Companies on the other hand each acknowledge that its promised obligations
hereunder are of a special, unique, unusual, extraordinary and intellectual
character which give them peculiar value the loss of which cannot be reasonably
or adequately compensated in an action at law, and that, in the event there is a
breach hereof by one of the parties (the "Breaching Party"), the other party
(the "Non-Breaching Party") will suffer irreparable harm, the amount of which
will be impossible to ascertain. Accordingly, the Non-Breaching Party shall be
entitled, if it so elects, to institute and prosecute proceedings in any court
of competent jurisdiction in the United States, either at law or in equity, to
obtain damages for any breach or to obtain or enforce specific performance of
the provisions or to enjoin the Breaching Party from committing any act in
breach of this Agreement. The remedies granted to the Non-Breaching Party in
this Agreement are cumulative and are in addition to remedies otherwise
available to such Non-Breaching Party
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at law or in equity. The specific performance remedies shall not apply to
breaches of Sections 4 and 5.
8. WAIVER OF BREACH. The waiver by a Non-Breaching Party of a
breach of any provision of this Agreement by a Breaching Party shall not operate
or be construed as a waiver of any other or subsequent breach by such Breaching
Party of any other provision.
9. CONSIDERATION. Each of the parties hereto acknowledge that
the benefits accruing to it as a result of the execution and delivery of the
Amended and Restated Technology Transfer Agreement of even date is good,
sufficient, independent and valid consideration for the covenants contained
herein.
10. NOTICES. All notices required or permitted hereunder shall
be in writing and shall be sent by certified or registered mail, return receipt
requested, postage prepaid, as follows:
(i) If to Real Media USA:
Real Media, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
Dechert Price & Xxxxxx
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxx X. Xxxx
(ii) If to Real Media CH:
c/o PUBLIGroupe S.A.
Xxxxxx xxx Xxxxxxxxxx 0, XX-0000
Xxxxxxxx, Xxxxxxxxxxx
with a copy to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
or to any such other address as any such party may designate in a written notice
served upon the other parties in the manner provided herein. All notices
required or permitted hereunder shall be
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deemed duly given and received on the second business day next succeeding the
date of mailing if sent by certified or registered mail.
11. SEVERABILITY. If any term or provision of this Agreement
and the application thereof to any person or circumstance shall, to any extent,
be held invalid or unenforceable by a court of competent jurisdiction, the
remainder of this Agreement or the application of any such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
If any of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to duration, scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be valid and
enforceable to the extent compatible with the applicable law or the
determination by a court of competent jurisdiction.
12. GOVERNING LAW. The implementation and interpretation of
this Agreement shall be governed by and enforced in accordance with the laws of
the State of New York, without giving effect to the conflicts of laws provisions
thereof.
13. BINDING EFFECT AND ASSIGNABILITY. The rights and
obligations of all parties hereto under this Agreement shall inure to the
benefit of and shall be binding upon their heirs, successors and assigns but may
not be assigned without the prior written consent of all parties hereto except
that Real Media CH may assign its rights and obligations hereunder to any entity
that is directly or indirectly owned 50% or more by PUBLIGroupe S.A.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement with respect to the subject matter hereof and thereof between the
parties hereto and replaces and supersedes as of the date hereof any and all
prior oral or written agreements and understandings between the parties hereto
with respect to the subject matter hereof and the Marketing Agreement as of the
3rd day of December, 1996, by and between Real Media USA, and PUBLIGroupe S.A.
(previously known as Publicitas Holding, S.A.). This Agreement may only be
modified by an agreement in writing executed by all parties hereto.
15. SUBMISSION TO JURISDICTION. Real Media CH hereby submits
to the jurisdiction of the courts of New York County, New York for purposes of
enforcement of this Agreement.
16. COUNTERPART SIGNATURES. This Agreement may be executed by
the parties in any number of counterparts and each executed copy shall be an
original for all purposes.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement the date and year first written above.
REAL MEDIA, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President
REAL MEDIA S.A.
By: /s/ Hans Xxxxx Xxxxxx
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Name: Hans Xxxxx Xxxxxx 9/4/98
Title: President
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Managing Director
PUBLIGROUPE S.A.
By: /s/ Hans Xxxxx Xxxxxx
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Name: Hans Xxxxx Xxxxxx 9/4/98
Title: Senior Vice President
By: /s/ Xxxxxx Annasohn
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Name: Xxxxxx Annasohn
Title: Senior Vice President
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