MARKETING AGREEMENT
Exhibit
2.2
This Marketing Agreement is entered into as of August 12, 2008 (this “Agreement”) by
and among Regent Releasing, L.L.C., a Texas limited liability company (the “Advertiser”),
and PlanetOut Inc., a Delaware corporation (the “Media Company”).
Recitals
A. The Media Company and its subsidiaries operate a number of Internet websites targeted at
the gay, lesbian, bisexual and transgender communities;
B. The Advertiser and its affiliates operate a media company and wish to pay the Media Company
$6,000,000 to advertise films and other products on the online and print platforms, publications
and events operated by the Media Company and its subsidiaries; and
C. Concurrently with the execution of this Agreement, an affiliate of the Advertiser, Regent
Entertainment Media Inc., a Delaware corporation (the “Buyer”), the Media Company and the Media
Company’s subsidiaries, LPI Media Inc., a Delaware corporation (“LPI”), and SpecPub., Inc., a
Delaware corporation (“SPI”), have entered into that certain Put/Call Agreement (the “Put/Call
Agreement”), pursuant to which the Buyer has the right to acquire and LPI and SPI have the right to
transfer certain of the assets and liabilities of LPI and SPI.
Agreement
The parties to this Agreement, intending to be legally bound, agree as follows:
SECTION 1. Definitions. The following terms shall have the corresponding meanings for the
purposes of this Agreement:
Ad. “Ad” shall have the meaning specified in Section 3.2 of the Agreement.
Advertiser. “Advertiser” shall have the meaning specified in the Preamble to the Agreement.
Agreement. “Agreement” shall have the meaning specified in the Preamble to the Agreement.
Buyer. The “Buyer” shall have the meaning specified in the third Recital to the Agreement.
CPM. “CPM” shall have the meaning specified in Section 2.2 of the Agreement.
Expiration Date. “Expiration Date” shall have the meaning specified in Section 5.1 of the
Agreement.
IAB. “IAB” shall have the meaning specified in Section 2.1 of the Agreement.
IO. “IO” shall have the meaning specified in Section 2.2 of the Agreement.
LPI. “LPI” shall have the meaning specified in the third Recital to the Agreement.
Marketing Commitment Amount. “Marketing Commitment Amount” shall have the meaning specified
in Section 4.1 of the Agreement.
Media Company. The “Media Company” shall have the meaning specified in the Preamble to the
Agreement.
Promotional Items. “Promotional Items” shall have the meaning specified in Section 3.1(d) of
the Agreement.
Put/Call Agreement. “Put/Call Agreement” shall have the meaning specified in the third
Recital to the Agreement.
SPI. “SPI” shall have the meaning specified in the third Recital to the Agreement.
SECTION 2. Advertising Agreement; Insertion Orders; Representations
2.1 With respect to online advertising, this Agreement is based on and incorporates the
Interactive Advertising Bureau’s (the “IAB”) standard terms and conditions for internet advertising
for media buys one year or less (version 2.0) (“IAB’s Standard Terms and Conditions”) which are
attached hereto as Schedule I. The IAB’s standard terms and conditions, however, are
amended as set forth in this Agreement. In the event of any conflict or inconsistency, this
Agreement and its amendments supersede or replace any conflicting or inconsistent IAB terms and
conditions. This Agreement also covers certain print advertising provided to Advertiser as set
forth on Schedule II attached hereto.
2.2 Attached hereto as Schedule II are the current details of the marketing approach
to be implemented by the Advertiser and the Media Company with the full details of the campaign or
program to be advertised, the property of the Media Company on which such advertising will appear,
the start and end date of each such advertising, the size of the advertising and the Cost Per
Thousand impressions (“CPM”) or other costs for such advertising. The marketing approach set forth
on Schedule II shall be subject to amendment and supplemented as reasonably agreed by the
Advertiser and the Media Company. Any changes to the marketing approach shall be designed to
protect and/or enhance the print and online environments for both the consumers and advertisers of
the properties of the Media Company and its subsidiaries. As amended and supplemented,
Schedule II shall be deemed to constitute the insertion orders (“IO’s”) pursuant to which
the marketing approach shall be implemented.
2.3 For the period from the date hereof through the Closing of the Put or Call (each as
defined in the Put/Call Agreement), the advertising shall be placed broadly in association with the
Media Company’s, LPI’s and SPI’s online and print platforms, publications and events. From and
after the Closing of the Put or Call, the marketing shall be placed in association with the Media
Company’s remaining online platforms and events only.
2.4 Representations and Warranties. Each party to this Agreement represents and
warrants to the other party that (i) such party has all necessary right, power and authority to
enter into this Agreement and to perform the acts required of it hereunder, and (ii) the entry into
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 of such party or by which such party is bound.
The Advertiser represents and warrants to the Media Company that the Promotional Items, each Ad
and the material to which such Ad links (i) do not infringe or misappropriate any intellectual
property (including, without limitation, trademarks and copyrights), confidentiality, publicity or
privacy rights of any third party in any jurisdiction, (ii) are truthful and not defamatory,
deceptive or misleading, (iii) do not contain any material or element that is unlawful, harmful,
abusive, hateful, threatening, or obscene (iv) comply with all applicable laws, including those
regarding unfair competition, anti-discrimination or false advertising and (v) do not contain any
virus, worm, trojan horse, time bomb or similar contaminating or destructive feature. The Media
Company may review the Ad and also test the Advertiser’s URL links and, in the Media
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Company’s sole discretion, may remove any Ad or URLs at any time that fail to comply with the
above requirements. If an advertising agency is entering into this Agreement on behalf of the
Advertiser, such advertising agency shall be jointly and severally responsible for all obligations
and amounts owing hereunder. Each such advertising agency represents and warrants that it has full
authority to act on the Advertiser’s behalf. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY
ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
SECTION 3. Amendments to IAB’s Standard Terms and Conditions. IAB’s Standard Terms and
Conditions set forth in Schedule I are hereby amended, clarified and supplemented as
follows:
3.1 Definitions and Specialty Terms. For purposes of this IO, the Media Company will
be deemed to have fully delivered an “impression” at the time the Advertiser’s Ad loads on a user’s
screen. For purposes of this IO, the Media Company will be deemed to have fully delivered a
“click-through” when a user clicks on the Advertiser’s Ad and arrives at the URL specified by the
Advertiser. The following terms and conditions apply to the following specialty deliverables:
(a) Roadblocks. Unless otherwise specified, a “Roadblock” identified in an IO entitles
Advertiser to 100% of advertising inventory on the identified page or pages for the date or dates
specified. If no date or dates are specified, or if the only dates specified are the flight dates,
then the Roadblock entitles Advertiser to 100% of advertisements on the identified page or pages
for a 24-hour period to be selected by the parties’ mutual agreement.
(b) Sponsorships. Unless otherwise specified, a “Sponsorship” identified in an IO
entitles Advertiser to a non-exclusive advertising placement on the page or pages and of the size
and type identified in such IO. If a Sponsorship is designated a fixed placement, any impressions
listed in the IO with regard to such placement are necessarily estimates. If a Sponsorship is
specifically designated as “exclusive” in the IO, Advertiser will be the only third-party
advertiser in Advertiser’s industry category permitted to purchase additional Ads (in addition to
the Sponsorship placement) on the pages on which Advertiser has purchased such Sponsorship. The
rates applicable to such additional Ads will be as set forth in the IO. Advertiser’s opportunity
to be the sole third-party advertiser in Advertiser’s industry category on such page(s), if
applicable, shall expire upon the designated end date of such Sponsorship.
(c) Sweepstakes. Unless otherwise specified, a “Sweepstakes” identified in the IO
entitles Advertiser to sponsor a Sweepstakes designed, hosted and administered by the Media Company
or its third-party service provider, with the cooperation and assistance of Advertiser as
necessary. For clarification and unless otherwise agreed, Advertiser agrees to pay for the design,
development, and cost of any ads. The fee for such Sweepstakes does not include
Advertiser-sponsored impressions promoting the Sweepstakes, which are provided for a separate fee,
at the rates as set forth in the IO. While Advertiser will be the sole sponsor of the Sweepstakes
in Advertiser’s industry category, the Media Company reserves the right to recruit sponsors in
other industry categories. Unless otherwise agreed, Advertiser will provide all prizes associated
with the Sweepstakes.
(d) Product Sampling. The Media Company or its approved third-party service provider
will include promotional items designated in the IO, provided by the Advertiser and approved by the
Media Company (“Promotional Items”) in shipments to users of selected goods purchased through
selected Websites. The Advertiser’s payment to the Media Company will be based upon numbers of
Promotional Items shipped, according to the records of the Media Company or the Media Company’s
third party order fulfillment service provider, which records shall be deemed conclusive for all
purposes
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hereunder. If requested by Advertiser, the Media Company will return any unshipped
Promotional Items to Advertiser, at Advertiser’s expense, upon termination or expiration of the
campaign.
(e) Emails. Unless otherwise specified, an “Email” identified in an IO entitles
Advertiser to exclusive advertising placement on a newsletter sent to the customers of the Media
Company who have opted-in to receive Email communications from the Media Company and its
subsidiaries. Unless otherwise specified in an IO, Emails will be sent to the total number of
customers who have opted-in to receive the newsletters throughout the nation. Aside from
Advertiser’s advertising placement, content of the Email is exclusively determined by the Media
Company.
(f) Events. Unless otherwise specified, an “Event” identified on an IO entitles
Advertiser to non-exclusive participation at a live gathering of the Media Company’s consumers in
one location and on one date, for a specified period of time. Advertiser’s participation will
consist of logo placement on any invitation and any displays created exclusively for the Event.
Imagery, including static photos and video, may also be displayed at the Event, as pre-approved by
the Media Company. Advertiser may choose to create additional experiences at an Event; such as
celebrity appearances or product give-aways. Any additional experiences must be pre-approved by
the Media Company and costs associated with producing these additional experiences are the sole
responsibility of Advertiser.
3.2 Provision of Advertising Materials. The Advertiser will provide all advertising
buttons, badges, banners, logos or text links described in the IO (each, together with any
hyperlinks, text, musical works, sound recordings, motion pictures and other audiovisual material,
pictures, graphics, logos and any other content, data or subject matter incorporated therein, in
addition to as defined below, an “Ad”) at least 5 days prior to scheduled publication date. The
Media Company shall not be required to publish any Ad that is not received in accordance with such
policy and applicable ad specifications, and Advertiser shall be obligated to pay amounts due for
such Ad, whether or not such Ad is published. The Advertiser shall not submit, and the Media
Company shall not be obligated to accept, Ads that are not readily identifiable as advertisements.
The Media Company may in its sole discretion label any Ad as an “advertisement” for clarification.
All contents of Ads are subject to the Media Company’s prior approval in its sole discretion. If
an Ad is not received at least five (5) days prior to scheduled publication date, then PlanetOut
may elect to enforce one of the following:
(a) Advertiser is still responsible for the media purchased pursuant to the IO.
(b) Advertiser is still responsible for the media purchased pursuant to the IO and the Media
Company may run a Public Service Announcement (PSA) as a replacement until the creative is
received; or
(c) Advertiser is still responsible for the media purchased pursuant to the IO and Media
Company may run a house promotion until the creative is received.
3.3 Section II (Ad Placement and Positioning) of Schedule I. The following
is added to section II:
Positioning and Style. Except as otherwise expressly provided in the
IO, the positioning of Ads within the Website (as defined hereafter) or on any
particular page of the Website shall be within the Media Company’s sole and absolute
discretion. “Site” as defined in the IAB standard terms and conditions shall mean
(a) any website operated or hosted by or under the brands of the Media Company or
any of its subsidiaries or affiliates, together with any mirror sites, any enhanced
sites, any co-branded editions of such sites that have been or may be developed for
distributors and successors to the
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foregoing; and (b) any third party Web sites within the Media Company’s
advertising affiliate network.
3.4 Clarification to section II(a) (Ad Placement and Positioning) of Schedule
I. Section II(a) is clarified as follows:
Online Ad Optimization. The Ad placements that are listed in the IO
will serve as the initial framework for the Advertiser’s campaign. The Media
Company will make best efforts to optimize the number of click-throughs to the
Advertiser’s web site over the term of this Agreement. This optimization may entail
adding more impressions for the top-performing placements, adding new placements and
removing poor-performing placements. Changes will be made only with the consent of
the Advertiser.
3.5 Replacing section II(b) (Ad Placement and Positioning) of Schedule I.
Section II(b) is hereby replaced in its entirety with:
Media Company currently intends to relaunch the website xxx.xxx later in
calendar year 2008. Following relaunch of the site, some ad units will change. The
parties will work together to mutually agree to any revisions of outstanding IO’s
necessary to cover the new ad units following the relaunch.
3.6 Replacing section III (Payment and Payment Liability) of Schedule I.
Section III is replaced in its entirety by Section 4 below of this Agreement.
3.7 Clarification to section V (Cancellation and Termination) of Schedule I.
Section V is clarified as follows:
Remedy following Cancellation. Except as hereinafter provided, any
cancellation or termination of an IO pursuant to this Section V shall not entitle
the Advertiser to any refund of any amounts previously paid or right to set-off
against any future amounts payable to the Media Company. The Advertiser’s sole
remedy following such termination or cancellation is to submit a revised IO and have
impressions delivered pursuant to a new campaign on or prior to the Expiration Date;
provided, however, that (i) if Advertiser has cancelled or terminated an IO pursuant
to Section V(c) due to a material breach by the Media Company and has notified the
Media Company of such breach at the time of cancellation or termination and (ii) the
Media Company has not delivered such new impressions within 90 days after the
Expiration Date, then the Advertiser shall be entitled to a refund for any amounts
previously paid for the unserved impressions and, upon making such refund, the Media
Company shall have no further obligation with respect thereto and, provided that the
Media Company has satisfied its obligations under Sections 3.8 and 3.9 of this
Agreement, this Agreement shall terminate.
3.8 Replacing section VI(b) (MakeGoods) of Schedule I. Section VI(b) is
hereby replaced in its entirety with:
MakeGood. In the event that the Media Company fails to either publish
an Ad in accordance with the schedule provided in the IO or, as applicable, deliver
the number of total impressions specified in the IO by the end of the specified
period, the Media Company shall place the Ad in a comparable position at a later
time, but in no event later than 90 days after the Expiration Date. Assuming the
Advertiser has provided the agreed upon advertising materials by the agreed upon
deadlines, should the Media Company fail
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to deliver the agreed upon total impressions no later than 90 days after the
Expiration Date, then the Advertiser shall be entitled to a refund of any amounts
previously paid for the undelivered impressions and, upon making such refund, the
Media Company shall have no further obligation with respect thereto and, provided
that the Media Company has satisfied its obligations under Sections 3.7 and 3.9 of
this Agreement, this Agreement shall terminate.
3.9 Replacing section VIII(c) (Force Majeure) of Schedule I. Section VIII(c)
is hereby replaced in its entirety with:
Remedy following Cancellation. To the extent that a force majeure has
continued for 5 business days, Media Company or Agency has the right to cancel the
remainder of the IO without penalty. Any cancellation of an IO pursuant to this
Section VIII shall not entitle the Advertiser to any refund of any amounts
previously paid or right to set-off against any future amounts payable to the Media
Company except as set forth below. The Advertiser’s remedy following such
termination or cancellation is to submit a revised IO and have impressions served
pursuant to a new campaign on or prior to the Expiration Date. Additionally, if
Advertiser terminates or cancels and submits a revised IO following a force majeure
that has continued for 5 business days, the Expiration Date shall be extended an
additional number of business days equal to the length of the force majeure but not
more than 90 days. Notwithstanding anything to the contrary pursuant to this
Section VIII, to the extent that the Media Company has not delivered the total
impressions specified in the IO no later than 90 days after the Expiration Date,
then the Advertiser shall be entitled to a refund of any amounts previously paid for
the undelivered impressions and, upon making such refund, the Media Company shall
have no further obligation with respect thereto and, provided that the Media Company
has satisfied its obligations under Sections 3.7 and 3.8 of this Agreement, this
Agreement shall terminate.
3.10 Added to section XI (Limitation of Liability) of Schedule I. The
following is hereby added to section XI:
The Media Company will have no liability to the Advertiser for (a) the
Promotional Items as provided to the Media Company or the content of any Ad, or any
errors or omissions within, (b) the quality or the display of any Ad on any
particular online service, software (including browsers), system configuration,
monitor resolution or other equipment used by any user of the Internet or (c) any
delay or failure to fulfill its obligations hereunder that results from an act of
god, war, civil disturbance, court order, legislative or regulatory action,
catastrophic weather condition, earthquake, failure or fluctuation in electrical
power or other utility services, Internet or telecommunications failure, computer
virus, third party interference, third party software or hardware defect or
condition that may interrupt or delay access to any Internet site or any other cause
beyond its reasonable control.
3.11 Replacing section XIV (Miscellaneous) of Schedule I. Section XIV
(Miscellaneous) is replaced in its entirety by Section 6 below of this Agreement.
SECTION 4. Payment Terms; Pre-Paid Advertising Credit; Security Agreement
4.1 In exchange for the advertising and promotional support, Advertiser shall pay to the Media
Company a total of $6,000,000 in cash (the “Marketing Commitment Amount”). Of the
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Marketing Commitment Amount, Advertiser has previously paid the Media Company $4,000,000 and
the remaining $2,000,000 shall be paid to the Media Company, $1,000,000 at a time, on the fifteenth
of each month beginning on August 15, 2008 and ending on September 15, 2008. Such additional
amounts shall be due and payable regardless of the timing of the release of any motion pictures by
Advertiser or any marketing efforts related thereto.
4.2 The Marketing Commitment Amount shall be treated as prepaid advertising, to be applied as
the marketing occurs. As of the date hereof, the prepaid advertising has been reduced to the
extent of the advertising already provided by the Media Company to the Advertiser prior to the date
hereof as set forth on Schedule I attached hereto. Except as set forth in Sections 3.7, 3.8 and
3.9, the remainder of the prepaid advertising must run by the Expiration Date. The Media Company
shall be entitled to keep any portion of the prepaid advertising which has not run as of the
Expiration Date, except as set forth in Sections 3.7, 3.8 and 3.9. The Advertiser shall not be
entitled to any refund for any prepaid advertising which has not run as of the Expiration Date,
except as set forth in Sections 3.7, 3.8 and 3.9.
4.3 From and after the time of the Closing of the Put or the Call, the unpaid portion of the
Marketing Commitment Amount shall be secured by the trademarks, copyrights and URLs acquired
pursuant to the Put/Call Agreement, with such security interest to be released following the full
payment of the Marketing Commitment Amount.
4.4 In the event that on or before the Expiration Date, the Media Company sells its
advertising business assets remaining following the closing of the Put or the Call pursuant to the
Put/Call Agreement and the acquirer of such assets or business either does not assume the Media
Company’s obligations arising under this Agreement or is no longer willing to provide advertising
on such assets, the Advertiser shall be entitled to a refund for any prepaid advertising which has
not run as of the closing of such acquisition.
SECTION 5. Term
5.1 Subject to Sections 3.7, 3.8 and 3.9, this Agreement shall commence as of the date hereof
and shall remain in effect until March 31, 2009 (the “Expiration Date”).
SECTION 6. Miscellaneous Provisions
6.1 Notices. All notices and other communications required or permitted to be given hereunder
shall be sent to the party to whom it is to be given with copies to all other parties as follow (as
elected by the party giving such notice) and be either personally delivered against receipt, by
facsimile or other wire transmission, by registered or certified mail (postage prepaid, return
receipt requested) or deposited with an express courier (with confirmation) to the parties at the
following addresses (or at such other address for a party as shall be specified by like notice):
| (a) | if to the Media Company: |
PlanetOut Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
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with a copy to:
PlanetOut Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
and to:
Xxxxxx Xxxx Nemerovski Xxxxxx Xxxx & Rabkin,
A Professional Corporation
Three Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
A Professional Corporation
Three Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
| (b) | if to the Advertiser: |
Regent Releasing, L.L.C.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman
Facsimile: (000) 000-0000
00000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman
Facsimile: (000) 000-0000
with a copy to:
Xx Xxxxxx West Chodorow Glickfeld & Nass, Inc.
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Hilton Chodorow
Facsimile: (000) 000-0000
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Hilton Chodorow
Facsimile: (000) 000-0000
All notices and other communications shall be deemed to have been given (i) when received if given
in person, (ii) on the date of electronic confirmation of receipt if sent by facsimile or other
wire transmission, (iii) three Business Days after being deposited in the U.S. mail, certified or
registered mail, postage prepaid, or (iv) one Business Day after being deposited with a reputable
overnight courier.
6.2 Relationship of Parties. Advertiser’s relationship with the Media Company will be that of
an independent contractor and nothing in this Agreement will be deemed to constitute either party
as the other’s partner, joint venturer, representative, agent or employee for any purpose.
6.3 License. The Advertiser hereby grants to the Media Company a non-exclusive, worldwide,
fully paid license to use, reproduce distribute, publicly display and publicly perform each Ad (and
the content, trademarks and brand features contained therein) in accordance with this Agreement.
6.4 Additional Representations. Media Company represents and warrants that Media Company has
all necessary permits, licenses, and clearances to sell the inventory represented in the IO subject
to the terms and conditions of this agreement, including any applicable Policies. Advertiser
represents and warrants that Advertiser has all necessary licenses and clearances to use the
content contained in their Ads and Advertising Materials.
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6.5 Survival. Sections 2.4 and 6 of this Agreement and Sections III (Payment and Payment
Liability), VI (Makegoods), X (Indemnification), XI (Limitation of Liability) and XII
(Non-Disclosure, Data Ownership, Privacy and Laws) of Schedule I shall survive termination
or expiration of this Agreement and Section IV (Reporting) of Schedule I shall survive for
30 days after the termination or expiration of this Agreement. In addition, following the
termination or expiration of this Agreement, each party shall return or destroy the other party’s
Confidential Information and remove Advertising Materials and Ad tags.
6.6 Time of the Essence. Time is of the essence of this Agreement.
6.7 Headings. The headings contained in this Agreement are for convenience of reference only,
shall not be deemed to be a part of this Agreement and shall not be referred to in connection with
the construction or interpretation of this Agreement.
6.8 Counterparts. This Agreement may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute one agreement.
6.9 Attorneys’ Fees. If any legal action or other legal proceeding relating to any of the
Transaction Agreements or the enforcement of any provision of any of the Transaction Agreements is
brought against any party hereto, the prevailing party shall be entitled to recover reasonable
attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing
party may be entitled).
6.10 Governing Law. This Agreement shall be construed in accordance with, and governed in all
respects by, the internal laws of the State of California (without giving effect to principles of
conflicts of laws).
6.11 Venue.
(a) Any legal action or other legal proceeding relating to this Agreement or the enforcement
of any provision of this Agreement may be brought or otherwise commenced in any state or federal
court located in the Cities and Counties of San Francisco or Los Angeles, California. Each party
to this Agreement:
(i) expressly and irrevocably consents and submits to the jurisdiction of each state and
federal court located in the Cities and Counties of Los Angeles and San Francisco, California (and
each appellate court located in the State of California) in connection with any such legal
proceeding;
(ii) agrees that each state and federal court located in the Cities and Counties of Los
Angeles and San Francisco, California shall be deemed to be a convenient forum; and
(iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such legal
proceeding commenced in any state or federal court located in the Cities and Counties of Los
Angeles and San Francisco, California, any claim that such party is not subject personally to the
jurisdiction of such court, that such legal proceeding has been brought in an inconvenient forum,
that the venue of such proceeding is improper or that this Agreement or the subject matter of this
Agreement may not be enforced in or by such court.
(b) The Advertiser and the Media Company agree that, if any Proceeding is commenced against
any Indemnified Party by any Person in or before any court or other tribunal
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anywhere in the world, then such Indemnified Party may proceed against the Indemnifying Party
in such court or other tribunal with respect to any indemnification claim or other claim arising
directly or indirectly from or relating directly or indirectly to such Proceeding or any of the
matters alleged therein or any of the circumstances giving rise thereto.
(c) The Advertiser and the Media Company each irrevocably waives the right to a jury trial in
connection with any legal proceeding relating to this Agreement or the enforcement of any provision
of this Agreement.
6.12 Assignment. Advertiser may not resell, assign or transfer any of its rights or
obligations hereunder other than to its subsidiaries and controlled affiliates, and any attempt to
resell, assign or transfer such rights or obligations to anyone other than its subsidiaries and
controlled affiliates without the Media Company’s prior written approval will be null and void.
The Media Company may assign this Agreement without the consent of the Advertiser to the acquirer
of the Media Company’s advertising business assets or to the survivor of a merger or other
consolidation or reorganization involving the Media Company. Except as set forth in the
immediately preceding sentence, the Media Company may not resell, assign or transfer any of its
rights or obligations hereunder other than to its subsidiaries and controlled affiliates, and any
attempt to resell, assign or transfer such rights or obligations without the Advertiser’s prior
written approval will be null and void. All terms and provisions of this Agreement and each IO
will be binding upon and inure to the benefit of the parties hereto and their respective permitted
transferees, successors and assigns.
6.13 Amendments. This Agreement may not be amended, modified, altered or supplemented other
than by means of a written instrument duly executed and delivered on behalf of the Advertiser and
the Media Company.
6.14 Severability. In the event that any provision of this Agreement, or the application of
any such provision to any Person or set of circumstances, shall be determined to be invalid,
unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application
of such provision to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall
continue to be valid and enforceable to the fullest extent permitted by law.
6.15 Parties in Interest. None of the provisions of this Agreement is intended to provide any
rights or remedies to any Person other than the parties hereto and their respective successors and
assigns (if any).
6.16 Entire Agreement. This Agreement, along with the Put/Call Agreement and the other
Transaction Agreements, as defined in the Put/Call Agreement, supersede that certain letter of
intent dated April 7, 2008 between Regent Releasing, L.L.C. and PlanetOut Inc. (which letter of
intent shall have no further force or effect) and set forth the entire understanding of the parties
relating to the subject matter thereof and supersede all prior agreements and understandings among
or between any of the parties relating to the subject matter thereof. No representation,
inducement, promise, understanding, condition or warranty not set forth herein has been made or
relied upon by either party hereto.
6.17 Construction.
(a) For purposes of this Agreement, whenever the context requires: the singular number shall
include the plural, and vice versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
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(b) The parties hereto agree that any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not be applied in the construction or
interpretation of this Agreement.
(c) As used in this Agreement, the words “include” and “including,” and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the
words “without limitation.”
(d) Except as otherwise indicated, all references in this Agreement to “Sections” and
“Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.
[Signature Page Attached]
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IN WITNESS WHEREOF, the Advertiser and the Media Company have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the date first written
above.
| “ADVERTISER”: | Regent Releasing, L.L.C. | |||||
| a Texas limited liability company | ||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| “MEDIA COMPANY”: | PlanetOut Inc., | |||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Name: Xxxxx Xxxxx | ||||||
| Title: Chief Executive Officer | ||||||
