Exhibit 10.1
MASTER ALLIANCE AGREEMENT
BETWEEN
iBEAM BROADCASTING CORPORATION
AND
XXXXXXXX COMMUNICATIONS, LLC
THIS MASTER ALLIANCE AGREEMENT (this "Agreement") between Xxxxxxxx
Communications, LLC ("Xxxxxxxx"), a Delaware limited liability company, and
iBEAM Broadcasting Corporation, a Delaware corporation, ("iBEAM"), is effective
the ___ day of _____________, 2001 (the "Effective Date"). Xxxxxxxx and iBEAM
are individually referred to as a "Party" and collectively referred to as the
"Parties."
RECITALS
WHEREAS, iBEAM has an Internet broadcast network that delivers streaming media
services and solutions to the Enterprise and Entertainment and Media markets;
WHEREAS, iBEAM desires to use Xxxxxxxx for all telecommunications-related
services in connection with iBEAM's Internet broadcast network, and Xxxxxxxx
desires to have a right of first offer and a right of first refusal with respect
to iBEAM's purchase of such services;
WHEREAS, Xxxxxxxx is a nationwide, single source provider of network services
for delivery of data on a wholesale basis and of video transmission and storage
services;
WHEREAS, the capabilities of each Party are complementary, and the relationship
contemplated by this Agreement (the "Alliance") will serve to broaden the base
of potential competitive opportunities for telecommunications services and other
applications for all market segments;
WHEREAS, the Parties are entering into a series of additional agreements to
implement the Alliance; and
WHEREAS, the Parties are entering into this Master Alliance Agreement to set
forth general provisions concerning the Alliance.
NOW THEREFORE, in consideration of the mutual covenants herein contained, iBEAM
and Xxxxxxxx agree as follows:
-1-
Confidential Draft June 20
1. Other Alliance Agreements
The Parties have previously entered into the following agreements: (1) a
Teleport Services Agreement dated December 13, 1999 (the "Teleport Services
Agreement"); and (2) a Data Services Agreement dated March 19, 2001 (the "Data
Services Agreement"). The Parties are now entering into the following additional
agreements to implement the Alliance, in addition to this Agreement: (3)
Amendment No. 1 to the Digital Services Agreement; and (4) a mediaXtranet
Services Agreement (the "mXn Agreement"). Collectively, these agreements,
together with this Agreement, are referred to as the "Alliance Agreements," and
copies of the other Alliance Agreements are attached hereto as follows:
Exhibit A - Teleport Services Agreement
Exhibit B - Data Services Agreement, as amended by Amendment No. 1
Exhibit C - mXn Agreement
2. Preferred Provider
It is the intent of the Parties that, subject to the terms hereof, Xxxxxxxx
shall be the preferred provider of the Services (as defined below) to iBeam, and
that iBeam shall receive favorable pricing for Services obtained pursuant to
this Alliance Agreement.
A. For purposes of this Agreement a "Service" shall mean any of the following:
o ATM Service
o Frame Relay Service
o Private Line Service
o Transit Internet Service
o Dedicated Internet Service
o Optical Wave Service
o Colocation Service
o Network Monitoring, including network control center services
and other Professional Services
o Customer Care Services, including help desk
o Hosting of World Wide Web Sites and Content
o Digital Data Management
o Digital Data Storage
o Caching Service
o Internet Connectivity
o Satellite and Teleport Distribution Services
o Media Exchange (or Digital Data Distribution)
o Video Transmission / Backhaul Services
Xxxxxxxx may update or modify the foregoing list of Services from time to
time upon written notice to iBEAM to reflect changes in Xxxxxxxx' standard
service offerings.
-2-
Confidential Draft June 20
B. If written contracts in addition to the Alliance Agreements are needed to
govern any Services, then Xxxxxxxx and iBEAM will negotiate in good faith to
execute services agreements or amendments to govern the provision of such
Services from Xxxxxxxx to iBEAM. Until these written services agreements have
been executed, Xxxxxxxx' standard terms and conditions shall govern any
provision of such Services to iBEAM.
C. iBEAM hereby grants to Xxxxxxxx a right of first offer (the "RFO") and a
right of last refusal (the "RLR") to sell Services to iBEAM, subject to and in
accordance with the following:
(i) Right of First Offer. In the event that iBEAM desires to purchase a
service that is the same as or substantially similar to a Service, iBEAM
shall so notify Xxxxxxxx in writing and Xxxxxxxx shall have the right to
present a written proposal to provide a Service to iBEAM before iBEAM
seeks proposals from third parties. If Xxxxxxxx does not respond within
five (5) business days after receipt of such notice from iBEAM, with
either a)a written proposal or b) a notice that it intends to submit a
written proposal, iBEAM shall have the right to seek proposals from third
parties. If the service sought by iBEAM is one for which a proposal cannot
reasonably be delivered by Xxxxxxxx within such five (5) day period, then
Xxxxxxxx shall have a reasonable time period within which to submit a
proposal, such reasonable time period not to exceed a date beyond which
iBEAM would be unable to seek and consider proposals from third parties
and to submit same to Xxxxxxxx as required by the RLR.
(ii) Right of Last Refusal.
a. In the event that iBEAM receives a bona fide proposal from a
third party (a "Proposal") to provide a service to iBEAM that is the same
as or substantially similar to a Service, iBEAM shall offer Xxxxxxxx the
opportunity to make a proposal to iBEAM to provide such Service on the
same terms as those contained in the Proposal (a "Matching Proposal").
x. Xxxxxxxx shall have no less than five (5) business days after
receipt of such notice from iBEAM of the terms of a Proposal in which to
deliver to iBEAM notice that it intends to submit a written proposal or a
written Matching Proposal, in which case iBEAM shall either (a) agree to
the Matching Proposal within five (5) business days after receipt thereof,
or (b) decline the Matching Proposal, in which case iBEAM shall not accept
the Proposal either. If Xxxxxxxx does not deliver a written Matching
Proposal to iBEAM within such time period, iBEAM shall have the right to
purchase the service from the third party pursuant to the Proposal free
and clear of any obligation to Xxxxxxxx under this RLR.
c. The Parties acknowledge that end users of iBEAM at times may
request iBEAM to use an alternative provider for services falling within
the scope of the RFO
-3-
Confidential Draft June 20
and/or RLR. In such event, iBEAM shall in good faith inform the end user
of iBEAM's strategic relationship with Xxxxxxxx and, if Xxxxxxxx so
requests, use reasonable efforts to arrange a meeting between
representatives of Xxxxxxxx, representatives of iBEAM, and representatives
of the end user in order to attempt to persuade the end user to use
Xxxxxxxx instead of the alternative vendor. If the end user nevertheless
requests that iBEAM use an alternative provider, then such transaction
shall not be governed by the RFO or the RLR.
(iii) Acceptance of Proposal. If Xxxxxxxx chooses to bid on services
pursuant to subsection c (i) or c (ii) above, and Xxxxxxxx' bid is
competitive with the overall market price for any specific service, then
Xxxxxxxx will be awarded the project, provided that Xxxxxxxx' bid contains
substantially similar commercial terms as any Proposal that would
otherwise be selected by iBeam. The Parties agree that "overall market
price" shall mean pricing available on a nationwide basis, disregarding
segment specific pricing and promotional pricing, for services that are
substantially the same as the services provided to iBeam by Xxxxxxxx. The
Parties will attempt to resolve any disagreement regarding what is
competitive with respect to any given Service.
D. The RFO and the RLR shall also be binding on iBEAM's Affiliates. An
"Affiliate" shall be an entity that controls, is controlled by, or is under
common control with a Party. Additionally, this provision shall survive any
change of "Control," as defined herein, of either Party and shall be binding
upon the entity resulting from the change of Control.
4. No Resale
It is the intent of the Parties that the Services are for the use of iBEAM only
to use to support its Internet broadcast network that delivers streaming media
services and solutions. Accordingly, iBEAM shall not resell any Services to
third parties. For example, iBEAM is receiving rack space as part of the hosting
Services under the mXn Agreement. iBEAM shall not resell that rack space to
third parties.
5. Term
The Term of this Alliance Agreement shall continue in effect for the shorter of
(a) five (5) years after the Effective Date, or (b) the date that Xxxxxxxx and
its Affiliates, in the aggregate, hold less than ten percent (10%) of the voting
rights associated with iBEAM's capital stock.
6. Alliance Managers
The "Alliance Manager" is an individual appointed by each Party and dedicated to
managing the Alliance relationship. iBEAM and Xxxxxxxx will each designate one
Alliance Manager from within their respective organizations. It shall be the
responsibility of the Alliance Manager to:
A. Serve as the principal contact person for each Party to the other
concerning Alliance matters;
B. Expedite the accomplishment of Alliance projects;
-4-
Confidential Draft June 20
C. Coordinate the activities of the Parties in furtherance of the goals of
the Alliance;
D. Seek any necessary internal approvals that may be necessary and desirable
to conduct the business of the Alliance.
7. Alliance Planning
The Parties shall establish formal reviews not less frequently than each
calendar quarter. These meetings shall review iBEAM's needs for Services, and
any current issues regarding Xxxxxxxx' Services. The Alliance Managers shall
jointly call the meetings.
8. Common Infrastructure Platform
The Parties will work in good faith to develop a Future Infrastructure Plan. The
Future Infrastructure shall provide for a content delivery network that is
capable of delivering streaming services, for both live streams and non-live
content to iBEAM and Vyvx customers.
The Parties agreed to proceed with the following phased approach in this regard:
Phase 1: A team of technical, operations and finance experts from each
party will develop, by July 30, 2001, an implementation plan for the IP and
collocate services to be provided by Xxxxxxxx ;
Phase2: The team's second deliverable will be to prepare, by September 30,
2001, a high level network and systems topology for a Next Generation
Intelligent Streaming Platform, complete with identification of major
milestones, proposed schedules, and budgetary estimates for capital and expense
impacts.. This plan to be reviewed by the Parties and decisions reached as to
funding and implementation timing within the next 30 days after presentation of
the initial high level plan.
Phase 3: Given appropriate adjustments for operational and financial
considerations, the goal for the implementation of the Future Infrastructure
Plan will be to complete the implementation by June 30, 2002, after which point
the Future Infrastructure will serve as the traffic network and system for iBeam
and Vyvx traffic.
iBeam agrees not to implement a Future Infrastructure Plan with any Party other
than Xxxxxxxx.
9. Intellectual Property
A. Definitions
(i) "Arbitration Panel" shall mean a panel of three arbitrators, none of
whom shall be an employee of iBEAM or Xxxxxxxx or an Affiliate of iBEAM or
Xxxxxxxx. One arbitrator shall be appointed by iBEAM, one arbitrator shall
be appointed by Xxxxxxxx, and the third arbitrator shall be appointed by
the two existing arbitrators. No potential
-5-
Confidential Draft June 20
arbitrator may serve on the Arbitration Panel unless he or she has had
experience valuing software technology. All aspects of any arbitration
before the Arbitration Panel shall be treated as confidential. Neither
iBEAM, Xxxxxxxx, nor the Arbitration Panel may disclose the existence,
content or results of any such arbitration, except as necessary to comply
with legal or regulatory requirements. Before making any such disclosure,
a party shall give written notice to all other parties and shall afford
such parties a reasonable opportunity to protect their interests. Any
determination by the Arbitration Panel shall be binding on iBEAM and
Xxxxxxxx.
(ii) "Current Assets" shall have the meaning as defined by Generally
Accepted Accounting Principles ("GAAP").
(iii) "End User" shall not include any entity that has the right to
sublicense the iBEAM Software Applications to others, or provide ASP or
time-sharing access to the iBEAM Software Applications, including
distributors, carriers, and service providers, but rather, includes
entities who are using the iBEAM Software Applications to provide Streams
to their end viewers.
(iv) "iBEAM Software Applications" shall mean, collectively,
PowerPresenter V.1., WebCast Encoder V.1., WebCast Scheduler V.1., WebCast
NV Service V.1., WebCast Media Indexer V.1., Telephony System V.1.,
Internet Real-Time Text Transmission V.1., 5.0 Authentication Plug-In
V.1., Virtual Roadshow Administration V.3., Virtual Roadshow Client User
Interface V.3., Transporter Administration V.3., Transporter Service V.3.,
Publisher Service V.3., Producer V.3., NextVenue W. Media Server Security
DLL V.1., and NextVenue Media Server Security DLL V.1.
(v) "Revenue" shall have the meaning as defined by GAAP.
(vi) "Streams" shall mean individual instances of simultaneously
downloaded and viewed or listened to audio and/or video content.
(vii) "Trigger Event" shall mean any one or more of the following: (i) 20%
decrease in the monthly volume of Streams served in any two consecutive
months exclusive of December by iBEAM (measured against the last 12 months
moving average); (ii) decrease in Revenue by more than 25% in any given
quarter, as compared to the immediately prior quarter; (iii) decrease in
iBEAM's Current Assets below an amount equal to $10 million; (iv) decrease
in iBEAM's net cash and equivalents by more than $10 million in any
calendar quarter beginning in the first quarter of 2002; (v) loss of more
than 50% of iBEAM's sales force; or (vi) loss of more than 33% of the
development and support staff for the iBEAM Software Applications,
exclusive of any reductions as contemplated by the Business Plan (as
defined in the letter agreement re: Business Plan of even date herewith
between the Parties).
B. Most Favored Pricing. During the term of this Agreement, in the event that
iBEAM makes or received an offer (and "Offer") for the sale, lease, license or
other disposition of the iBEAM Software Applications, or any part thereof, in
any way other than in the ordinary course
-6-
Confidential Draft June 20
of business as such business is conducted by iBEAM as of the date hereof, and
except for the provision of an iBEAM Software Application via a site license to
an individual iBEAM End User solely for the purpose of installation and use of
an iBEAM Software Application. If iBEAM intends to sell, lease, license or
otherwise dispose of an iBEAM Software Application pursuant to the terms of an
Offer, then, prior to the consummation of such transaction, iBEAM shall offer to
Xxxxxxxx in writing (a "Xxxxxxxx Offer") the right to acquire the same rights on
terms that are equivalent to the Offer. If Xxxxxxxx does not accept the Xxxxxxxx
Offer in writing within thirty (30) days after receipt thereof, Xxxxxxxx shall
be deemed to have rejected the Xxxxxxxx Offer. iBEAM represents and warrants to
Xxxxxxxx that, as of the date hereof, no third party has any rights in and to
the iBEAM Software Applications other than pursuant to iBEAM's standard Reseller
Agreement, a copy of such Reseller Agreement is attached hereto as Exhibit D, on
terms consistent with those having been offered to Xxxxxxxx, and pursuant to
licensing agreements between iBEAM and iBEAM Europe Limited and between iBEAM
and iBEAM Asia Ltd.
C. License Grant
(i) License Grant. iBEAM hereby grants to Xxxxxxxx, a royalty-bearing
(solely in accordance with Section 9.C.(iii) ("Royalty") below),
non-exclusive, transferable, sublicensable right to copy, modify, use (in
object code and source code form), distribute, create derivative works
from, and display the iBEAM Software Applications (the "License"), which
License shall become exercisable by Xxxxxxxx solely upon the occurrence of
one or more of the Trigger Events.
(ii) License Term. During the period beginning on the occurrence of one or
more of the Trigger Events and continuing thereafter for a period of
ninety (90) days (the "Cure Period"), the License may be exercised by
Xxxxxxxx for so long as the Trigger Event(s) which prompted the License
remain uncured by Xxxxxxxx as substantiated by detailed written
documentation. In the event that iBEAM does not cure any such Trigger
Event(s) during the Cure Period and provide Xxxxxxxx with such
substantiating documentation, at Xxxxxxxx' option, (i) the License shall
thereafter either be perpetual and may not be revoked by iBEAM at any
time, or (ii) Xxxxxxxx may acquire the iBEAM Software Applications at the
fair market value to be determined by the Arbitration Panel.
(iii) Royalty. Upon the first commercial use of the iBEAM Software
Applications by Xxxxxxxx pursuant to the License, Xxxxxxxx shall pay to
iBEAM a monthly licensing fee equal to the fair market value for the
licensing of similar software to be set by the Arbitration Panel. In the
event that Xxxxxxxx chooses to acquire the iBEAM Software Application
(pursuant to Section 9.C.(ii) ("License Term") above), Xxxxxxxx shall no
longer be required to pay iBEAM any further monthly licensing fee.
(iv) Software Support. If Xxxxxxxx exercises such License, for the term of
any such License, iBEAM shall provide Xxxxxxxx the maintenance services
set forth in Exhibit E, at fair market rates as set by the Arbitration
Panel.
-7-
Confidential Draft June 20
D. Escrow Agreement. iBEAM, Xxxxxxxx and a nationally recognized escrow agent
selected by iBEAM and Xxxxxxxx shall enter into a standard source code escrow
agreement ("Escrow Agreement") providing Xxxxxxxx with access to the
then-current current source code and documentation for the iBEAM Software
Applications (the "Source Material") upon the occurrence of certain listed
events, including, without limitation, the Trigger Events and iBEAM's
bankruptcy. Such Source Material shall include, without limitation, source code
and documentation required for the normal use, maintenance, modification or
correction of the most current version of the iBEAM Software Applications.
Xxxxxxxx shall have the right to audit the Source Material to verify the
accuracy and completeness thereof. iBEAM shall ensure execution of same by the
escrow agent within [ten (10) days] after the Effective Date and provide
Xxxxxxxx with a true copy of the fully executed escrow-agent-executed copy of
the Escrow Agreement.
10. Further Agreements
Further agreements to implement the Alliance may be appropriate. Therefore, upon
reasonable request of a Party, the Parties shall meet and negotiate in good
faith to determine if additional Alliance agreements are appropriate and the
terms and conditions of any such agreements.
11. Assignment
Neither Party may assign nor delegate any of its rights or obligations under
this Agreement without the prior written consent of the other Party. However,
either Party may assign this Agreement to any Affiliate, so long as such
assigning Party guarantees the Affiliate's performance, and in such circumstance
shall provide the other with written notice thereof.
12. Amendment
No amendment of this Agreement shall be valid or binding on the Parties unless
such amendment shall be in writing and duly executed by an authorized
representative of each Party.
13. Breach, Cure and Termination
If iBEAM breaches any Alliance Agreement in a manner that has a material adverse
effect on the commercial value of the Alliance to Xxxxxxxx, and does not cure
such breach within fifteen (15) days after receipt of written notice from
Xxxxxxxx explaining in reasonable detail the basis of such breach, then Xxxxxxxx
shall have the right to terminate all or part of the Alliance upon not less than
ten (10) business days' prior written notice to iBEAM. If Xxxxxxxx breaches any
Alliance Agreement in a manner that has a material adverse effect on the
commercial value of the Alliance to iBEAM, and Xxxxxxxx does not cure such
breach within fifteen (15) days after receipt of written notice from iBEAM
explaining in reasonable detail the basis of such breach, then iBEAM shall have
the right to terminate all or part of the Alliance upon ten (10) business days'
prior written notice to Xxxxxxxx.
14. Cross-Default
In the event that iBeam materially breaches any of its obligations,
representations, warranties or covenants under any of the Transaction Documents
(as this term is defined under the Stock Purchase Agreement between Xxxxxxxx and
iBeam, dated June __, 2001), and does not cure such
-8-
Confidential Draft June 20
breach within fifteen (15) days after receipt of written notice from Xxxxxxxx
explaining in reasonable detail the basis of such breach, then Xxxxxxxx shall
have the right to terminate the Alliance upon not less than ten (10) business
days' prior written notice to iBeam. In the event that Xxxxxxxx materially
breaches any of its obligations, representations, warranties or covenants under
any of the Transaction Documents, and does not cure such breach within fifteen
(15) days after receipt of written notice from iBeam explaining in reasonable
detail the basis of such breach, then iBeam shall have the right to terminate
the Alliance upon not less than ten (10) business days' prior written notice to
Xxxxxxxx.
15. Headings
Headings contained herein shall in no way limit the subject matter they
introduce and shall not be used in construing this Agreement.
16. Publicity
Neither Party shall make a public announcement about this Agreement or the
Parties' discussions related to any aspect of it without the written consent of
the other Party. Either of the Parties may at anytime make announcements which
are required by applicable law, regulatory bodies, or stock exchange or stock
association rules, so long as the Party so required to make the announcement,
promptly upon learning of such requirement, notifies the other Party of such
requirement and discusses with the other Party in good faith that exact wording
of any such announcement.
17. Execution
This Agreement shall be executed in two duplicate copies, one for each Party,
each of which copies shall be deemed an original.
18. Relationship of Parties
The Alliance Agreements individually or in the aggregate shall not be construed
to create a partnership, joint venture, or any other form of legal entity.
19. Notices
Any notice, request, instruction or other document to be given hereunder by any
Party to any other Party under any section of this Agreement shall be in writing
and shall be given by facsimile with confirmation by overnight courier. to the
following addresses (or at such other address for a Party as shall be specified
by like notice):
If to iBEAM: iBEAM Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
Telephone: (000) 000-0000
-9-
Confidential Draft June 20
If to Xxxxxxxx: Xxxxxxxx Communications, LLC
Xxx Xxxxxxxx Xxxxxx, XX-00
Xxxxx, XX 00000
Attn: Contract Administration
Fax: 000-000-0000
Telephone: 000-000-0000
With a copy to: Xxxxxxxx Communications, LLC
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
Telephone: 000-000-0000
20. Severability
In case any one or more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect by a
court or other authority of competent jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein and, in lieu of each such illegal,
invalid or unenforceable provision, there shall be added automatically as a part
of this Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable,
it being the intent of the Parties to maintain the benefit of the bargain for
both Parties.
21. Governing Law
This Agreement shall be construed in accordance with and governed by the laws of
the State of Delaware. .
22. Entire Agreement
This Agreement, together with the other Alliance Agreements attached as Exhibits
hereto, which are incorporated herein, contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes any prior
understandings, oral agreements and/or writings between the Parties regarding
the subjects within this Agreement.
-10-
Confidential Draft June 20
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their respective authorized representatives.
XXXXXXXX COMMUNICATIONS, LLC iBEAM BROADCASTING CORPORATION
/s/ Xxxx Xxxxxxxxx /s/ Xxxxx Xxxxxxx
------------------ -----------------
Signature of Authorized Representative Signature of Authorized Representative
----------------------------- Xxxxx Xxxxxxx
Printed Name -------------
Printed Name
-----------------------------
Title CEO
---
Title
-11-
