AGREEMENT
---------
This Agreement (the "Agreement') is made and entered into by and between
Digital Equipment Corporation ("Digital"), a Massachusetts corporation, and
AltaVista Technology, Inc. ("ATI"), a California corporation (collectively, the
"Parties").
WHEREAS, ATI registered the domain name "xxxxxxxxx.xxx" with InterNIC on or
about February 1, 1995;
WHEREAS, on or about March 14, 1996, the Parties entered into an Agreement
pursuant to which ATI agreed to assign to Digital all of its right, title and
interest in and to the ALTAVISTA trademark and Digital agreed to grant ATI a
nonexclusive license to use the ALTAVISTA xxxx as part of the corporate name
"AltaVista Technology, Inc." and as part of the Internet domain name
"xxxxxxxxx.xxx";
WHEREAS, on or about March 14, 1996, the Parties entered into a trademark
Assignment Agreement pursuant to which ATI assigned to Digital all of its right,
title and interest in and to the ALTAVISTA trademark;
WHEREAS, on or about March 19, 1996, the parties entered into a Trademark
License Agreement ("License Agreement") pursuant to which Digital granted ATI a
nonexclusive license to use the ALTAVISTA xxxx as part of the corporate name
"AltaVista Technology, Inc." and as part of the Internet domain name
"xxxxxxxxx.xxx";
WHEREAS, certain disputes have arisen relating to the Parties' performance
of their respective obligations under the License Agreement and relating to the
Parties' use of the ALTAVISTA xxxx;
WHEREAS, Digital has asserted breach of contract trademark infringement and
related claims against ATI in an action filed in the United States District
Court for the District of Massachusetts captioned Digital Equipment Corporation
-----------------------------
v. Alta Vista Technology, Inc., Civil Action No. 96-12192 NG (D. Mass.)(the
----------------------------------
"Action");
WHEREAS, ATI has asserted breach of contract, trademark infringement and
related counterclaims against Digital in the Action;
WHEREAS, the Parties in order to resolve this dispute have agreed, without
admitting liability of any kind, to enter into a settlement of the Action on the
terms set forth herein and for good and valuable consideration, to avoid further
expense, inconvenience and the risk and distraction of burdensome and protracted
litigation; and
WHEREAS, the Parties have agreed to terminate the License Agreement and
enter into a License Termination and Installment Sale Agreement whereby ATI has
agreed to sell, transfer and assign to Digital all of ATI's rights in and to the
ALTAVISTA xxxx granted to ATI under the License Agreement, including but not
limited to ATI's right to use the ALTAVISTA xxxx as part of the corporate name
"AltaVista Technology, Inc." and as part of the Internet domain name
"xxxxxxxxx.xxx" for three million one hundred thousand dollars ($3,100,000.00);
1
NOW, THEREFORE, for and in consideration of the mutual promises, releases
and agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Installment Sale Agreement.
-----------------------------
Immediately upon execution of this Agreement, the Parties shall execute a
License Termination and Installment Sale Agreement, in the form attached hereto
as Exhibit A.
2. Linking and Content Agreement.
--------------------------------
Immediately upon execution of this Agreement, the Parties shall execute a
Linking and Content Agreement in the form attached hereto as Exhibit B.
3. Payment of Attorneys Fees by Digital.
------------------------------------------
Immediately upon the execution of this Agreement, ATI shall deliver or
cause to be delivered to Digital a detailed accounting of its legal expenses
incurred in connection with the Action, including attorneys' fees and costs.
Within five (5) business days of Digital's receipt of this accounting, Digital
shall reimburse ATI for its documented legal expenses incurred in connection
with the Action, to the extent those expenses are not paid in accordance with
any applicable insurance policy, up to but not to exceed two hundred fifty
thousand dollars ($250,000.00).
4. Press Release by Digital.
----------------------------
Within ten (IO) days after the execution of this Agreement, Digital will
issue a press release regarding the Parties' agreements, substantially in the
form attached hereto as Exhibit C. Except as permitted in paragraph 7.1 hereof,
ATI shall not make any statements regarding the terms of this Agreement or any
other agreement of the Parties entered into contemporaneously herewith except
those terms disclosed in the press release, nor shall ATI respond to inquiries
from the press or from any other person regarding said terms, except to refer
such inquiries to
Digital's press release.
5. Mutual Release.
----------------
5.1 Execution of Mutual Release. Immediately upon the execution
----------------------------
of this Agreement, transfer of the Internet domain name "xxxxxxxxx.xxx" to
Digital as set forth in the License Termination and Installment Sale Agreement,
and termination of the License Agreement as set forth in the License Termination
and Installment Sale Agreement, the Parties shall execute a Mutual Release
Agreement in the form attached hereto as Exhibit D.
2
5.2 This Agreement represents the compromise of disputed claims between
the Parties hereto. Therefore, neither the execution and performance of this
Agreement nor any term or provision of this Agreement will be deemed an
admission of any kind by either Party hereto.
6. Return of Confidential Information.
--------------------------------------
Within ten (1O) days after the execution of this Agreement, each party
shall return all (including all copies) of the other Party's confidential
information produced in connection with the Action.
7. Confidentiality.
----------------
7.1 Confidentiality and Nondisparagement- Except to the extent that
disclosure of the terms of this Agreement (i) may be required by law or (ii) is
required for purposes of obtaining tax or accounting advice or communicating
with insurance carriers, the Parties agree that the terms of this Agreement, the
settlement negotiations prior thereto, and the facts and circumstances
underlying this Agreement shall be considered confidential. Any and all
statements made by the Parties in connection with this Agreement and the
settlement negotiations prior thereto, whether a statement of fact, opinion,
supposition or otherwise, may not and will not be used, quoted or alluded to in
any manner. The Parties agree to use commercially reasonable efforts to prevent
disclosure of the terms of this Agreement and the settlement negotiations prior
thereto any third party. The Parties agree not to publicly disparage each other
(including, but not limited to, through their counsel) concerning the litigation
or the subject matter thereof.
7.2 Material Breach of Confidentiality. The Parties agree that any
-------------------------------------
violation of the provisions of paragraph 7.1 shall be a material breach of this
Agreement.
8. Dismissal of Action and Appeal.
-----------------------------------
Within five (5) days after the execution of this Agreement, transfer of the
Internet domain name "xxxxxxxxx.xxx" to Digital as set forth in the License
Termination and Installment Sale Agreement, and termination of the License
Agreement as set forth in the License Termination and Installment Sale
Agreement, the Parties shall file with the Court a Stipulation of Dismissal With
Prejudice in the form attached hereto as Exhibit E. Within five (5) days after
the execution of this Agreement, transfer of the Internet domain name
"xxxxxxxxx.xxx" to Digital as set forth in the License Termination and
Installment Sale Agreement, and termination of the License Agreement as set
forth in the License Termination and Installment Sale Agreement, the Parties
shall file with the Court of Appeals for the First Circuit a Stipulation of
Dismissal with Prejudice in the form attached hereto as Exhibit F.
3
9. Material Breach.
-----------------
The Parties agree that upon any material breach by ATI of the terms of this
Agreement or the terms of the License Termination and Installment Sale
Agreement, all of Digital's obligations under the Linking and Content Agreement
shall terminate.
10. Miscellaneous.
--------------
10.1 Notices. All notices, requests, waivers, consents, or other
-------
communications required or permitted by this Agreement ("Notices") shall be in
writing. Notices shall be deemed delivered for all purposes when delivered in
person or when dispatched by electronic facsimile transmission or upon
confirmation of receipt when dispatched by a nationally recognized overnight
courier service to the appropriate party with a copy to counsel (which shall not
constitute notice) as follows:
If to Digital:
----------------
Xxxxx Xxxxxxx, Esq.
Group Counsel, Consumer Products Group
Office of the General Counsel
Compaq Computer Corporation
20555 SH249
MS I 10701
Xxxxxxx, Xxxxx 00000
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxx, P.C.
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
4
If to ATI:
------------
Xxxx Xxxxxxxx
President
AltaVista Technology, Inc-
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:(000) 000-0000
with a copy to:
Xxx Xxxx Xxxxxxxx, Esq.
Xxxxxxxx & Sunstein LLP
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10.2 Amendment and Waiver. This Agreement may be amended, modified,
---------------------
waived, discharged or terminated only by an instrument in writing of subsequent
or even date signed by both Parties.
10.3 Successors and Assigns. This Agreement will be binding upon
-------------------------
and inure to the benefit of the Parties and their respective successors and
assigns.
10.4 Rights of the Parties. Nothing expressed or implied in this
------------------------
Agreement is intended or will be construed to confer upon or give any person or
entity other than the Parties or their respective successors and assigns any
rights or remedies under or by reason of this Agreement or any transaction
contemplated hereby.
10.5 Titles and Headings. Titles and headings to Articles and
----------------------
Sections herein are inserted for convenience of reference only, and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
10.6 Entire Agreement. This Agreement, together with its Exhibits,
------------------
constitutes the entire agreement between the Parties with respect to the subject
matter hereof, and there are no agreements between the Parties with respect
hereto except as expressly set forth herein.
10.7 Delay or Omission. No delay or omission by either of the Parties in
------------------
exercising any right under this Agreement will operate as a waiver of any right.
A waiver of consent given by either of the Parties on any occasion is effective
only in that instance and will not be construed as a bar to or waiver of any
right on any other occasion.
5
10.8 Severability. In case any provision contained in this
-------------
Agreement is determined by a court to be invalid or unenforceable, the validity
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
10.9 Additional Documents. Each of the Parties shall, upon the
----------------------
request of the other party, provide such other party with such additional
instruments, certificates and documents as the requesting party shall reasonably
require, whether or not such request is made after the date of this Agreement,
in order to provide the requesting party with the rights and benefits to which
such party is entitled under the Agreement.
10.10 Counterparts. This Agreement may be executed in any number of
-------------
counterparts, each of which when executed and delivered shall be deemed an
original; such counterparts shall together constitute but one agreement.
10.11 Corporation. Each party hereto is a corporation, and each
------------
person executing this Agreement on behalf of a corporation represents and
warrants that: (a) such corporation is duly organized, validly authorized and in
good standing, and possesses full power and authority to enter into and comply
with the terms of this Agreement; (b) the execution and delivery, and compliance
with the terms, of this Agreement have been duly and validly authorized by all
requisite corporate acts and consents and do not contravene the terms of any
other obligation to which the corporation is subject; (c) this Agreement, when
effective, shall constitute a legal, binding and valid obligation of such
entity, enforceable in accordance with its terms; and (d) each of the Parties
hereto shall furnish to the other party such evidence of such actions and
consent, and such legal opinions with respect thereto, as either of the Parties
may reasonably request.
10.12 Governing Law. This Agreement and the terms, covenants and
--------------
conditions hereof shall be construed in accordance with, and governed by, the
laws of the Commonwealth of Massachusetts (without giving effects to any
conflicts of law provisions contained therein).
IN WITNESS HEREOF, the Parties hereto have duly executed this Agreement on this
31st. day of July, 1998.
DIGITAL EQUIPMENT CORPORATION ALTAVISTA TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxx By:
--------------------- ---------------------
Xxxxxx X. Xxxx Xxxx Xxxxxxxx
6
10.12 Governing Law. This Agreement and the terms, covenants and
---------------
conditions hereof shall be construed in accordance with, and governed by, the
laws of the Commonwealth of Massachusetts (without giving effect to any
conflicts of law provisions contained therein).
IN WITNESS HEREOF, the Parties hereto have duly executed this Agreement on
this 31-st. day of July, 1998.
DIGITAL EQUIPMENT CORPORATION ALTAVISTA TECHNOLOGY,INC.
By: By: /s/ Xxxx Xxxxxxxx
--------------------- ---------------------
Xxxxxx X. Xxxx Xxxx Xxxxxxxx
7
EXHIBIT A
LICENSE TERMINATION AND INSTALLMENT SALE AGREEMENT
This License Termination and Installment Sale Agreement ("Installment Sale
Agreement") is made and entered into by and between Digital Equipment
Corporation ("Digital"), a Massachusetts corporation, and AltaVista Technology,
Inc. ("ATI"), a California corporation (collectively, the "Parties").
WHEREAS, ATI registered the domain name "xxxxxxxxx.xxx" with InterNIC on or
about February 1,1995; and
WHEREAS, on or about March 19, 1986, the Parties entered into a trademark
license agreement (the "License Agreement") pursuant to which Digital granted to
ATI a nonexclusive license to use the ALTAVISTA xxxx as part of the corporate
name "AltaVista Technology, Inc." and as part of the Internet domain name
"xxxxxxxxx.xxx";
WHEREAS, the Parties have agreed to terminate the License Agreement; and
WHEREAS, ATI has agreed to sell, transfer and assign to Digital all of
ATI's rights in and to the ALTAVISTA xxxx granted to ATI under the License
Agreement, including but not limited to ATI's right to use the ALTAVISTA xxxx as
part of the corporate name "AltaVista Technology, Inc." and as part of the
Internet domain name "xxxxxxxxx.xxx";
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements contained herein and in the Agreement of the Parties entered into
contemporaneously with this Installment Sale Agreement, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Termination of License Agreement. Thirty (30) days after the
execution of this Installment Sale Agreement, the License Agreement shall
terminate, and ATI shall have no further rights under the License Agreement,
provided however, that ATI may continue to use the ALTAVISTA xxxx in the limited
manner set forth in paragraph 6 below.
2. Sale, Transfer and Assignment of Rights. ATI hereby sells,
---------------------------------------------
transfers and assigns to Digital, effective thirty (30) days after the execution
of this Installment Sale Agreement, all of its rights in and to the ALTAVISTA
xxxx granted to ATI under the License Agreement, including but not limited to
ATI's right to use the ALTAVISTA xxxx as part of the corporate name "Alta Vista
Technology, Inc."and as part of the Internet domain name "xxxxxxxxx.xxx" and
ATI's rights to use any other names containing the term "altavista" or a
confusingly similar term. ATI further sells, transfers and assigns to Digital
all rights associated with the domain name "xxxxxxxxx.xxx" effective thirty (30)
days after the execution of this Installment Sale Agreement. Within thirty (30)
days after the execution of this Installment Sale Agreement, ATI shall provide
Digital with the documentation necessary to transfer the domain name
"xxxxxxxxx.xxx" to Digital in accordance with the published procedures for
transfer domain names in effect at that time.
A-1
Digital shall file such documentation with InterNIC no earlier than the
thirty-first day after execution of this installment Sale Agreement. ATI agrees
to execute and deliver to Digital such other documents and take such other
reasonable actions as are required to transfer the domain name "xxxxxxxxx.xxx"
to Digital and to confirm, evidence, or establish Digital's rights to the domain
name "xxxxxxxxx.xxx."
3. No Use of Similar Domain Name, ATI agrees to not use or register
-----------------------------
any domain name containing the term "altavista" or any confusingly similar term.
4. No Objection to Registration of Domain Name. ATI agrees to not
----------------------------------------------
object to or otherwise challenge Digital's use and registration worldwide of any
domain name containing the term "altavista" or any confusingly similar term.
5. Representation and Warranties.
--------------------------------
5.1 Seller. ATI represents and warrants to the best of its
------
actual knowledge, as of the date of its execution of this Installment Sale
Agreement, that:
(a) There are no existing or threatened claims or proceedings by
any third party relating to ATI's use, registration, or ownership
of the domain name l,xxxxxxxxx.xxx";
(b) The domain name "xxxxxxxxx.xxx" is not subject to any
outstanding order, decree, judgment, stipulation, written
restriction, undertaking, or agreement that would prevent ATI
from complying with any of its obligations under this Installment
Sale Agreement;
(c) The domain name "xxxxxxxxx.xxx" is not subject to any lien,
security interest, mortgage, or other encumbrance;
(d) ATI has not granted any licenses to or authorized any third
parties to use the domain name "xxxxxxxxx.xxx" or any confusingly
similar domain name; and
(e) ATI does not own any domain name registrations or
applications containing the term "altavista" or any confusingly
similar term other than the domain name "xxxxxxxxx.xxx."
6. Transition Period.
-------------------
6.1 Domain Name. After the termination of the License
------------
Agreement, ATI shall not use the domain name xxxxxxxxx.xxx", provided however,
that ATI may refer to the domain name "xxxxxxxxx.xxx" in order to inform third
parties that it has changed its Web site address from the domain name
"xxxxxxxxx.xxx" to another domain name for a period of three (3) months
following the transfer of the domain name "xxxxxxxxx.xxx."
A-2
6.2 E-Mail Routing. Upon transfer to Digital of the domain name
----------------
"xxxxxxxxx.xxx" and for a period of six (6) months following the transfer,
Digital shall route e-mail directed to "xxxxxxxxx.xxx" and intended to be
received by ATI to xxxxxxxx.xxx" or to any other Internet address designated by
ATI. ATI shall have the right to change the Internet address to which e-mail is
routed upon five (5) days written notice to Digital. Digital shall be
responsible for maintaining consistent operation of the e-mail routing software
so as to minimize any delay between Digital's receipt of e-mail and the
transmission of e-mail to ATI and so as to ensure the integrity of e-mail
messages and attachments. In no case shall e-mail be routed to the address
designated by ATI later than twelve (12) hours after receipt by Digital. For
the period of six (6) months following the transfer of the domain name
xxxxxxxxx.xxx", Digital shall not use any of the e-mail addresses currently used
by ATI, as listed in Exhibit I hereto. ATI may refer to the domain name
"xxxxxxxxx.xxx" during this six (6) month period in order to inform third
parties that it has changed its e-mail addresses.
6.3 Change of Corporate Name. Within ten (1O) business days after
---------------------------
the execution of this Installment Sale Agreement, ATI shall file papers with the
appropriate legal agency to legally change its corporate name. For a period of
thirty (30) days following the execution of this Installment Sale Agreement, ATI
may use the ALTAVISTA xxxx as part of its corporate name. ATI shall not use the
ALTAVISTA xxxx as part of its corporate name after the thirty (30) day period
following the execution of this Installment Sale Agreement has expired.
7. Termination of Agreements. Immediately upon the execution of
this Installment Sale Agreement, ATI shall give notice of the termination of all
agreements that could impair its right to sell, transfer and assign to Digital
all of its rights in and to the ALTAVISTA xxxx granted to ATI under the License
Agreement. Such notice shall be given to all parties to all such agreements.
8. Payment. Immediately upon the execution of this Installment Sale
-------
Agreement, Digital shall deliver or cause to be delivered to ATI the sum of
three hundred and fifty thousand dollars ($350,000.00) and shall execute a seven
percent (7%) promissory note in the principal amount of two million seven
hundred and fifty thousand dollars ($2,750,000.00) in the form of Exhibit 2.
9. Miscellaneous.
--------------
9.1 Amendment and Wavier. This Installment Sale Agreement may be
-----------------------
amended, modified, waived, discharged or terminated only by an instrument in
writing of subsequent or even date signed by both Parties.
9.2 Successors and Assigns. This Installment Sale Agreement will be
-----------------------
binding upon and inure to the benefit of the Parties and their respective
successors and assigns.
A-3
9.3 Delay or Omission. No delay or omission by either of the
--------------------
Parties in exercising any right under this Installment Sale Agreement will
operate as a waiver of any right. A waiver of consent given by either of the
Parties on any occasion is effective only in that instance and will not be
construed as a bar to or waiver of any right on any other occasion.
9.4 Severability. In case any provision contained in this
Installment Sale Agreement is determined by a court to be invalid or
unenforceable, the validity and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
9.5 Additional Documents. Each of the Parties shall, upon the
----------------------
request of the other party, provide such other party with such additional
instruments, certificates and documents as the requesting party shall reasonably
require, whether or not such request is made after the date of this Installment
Sale Agreement, in order to provide the requesting party with the rights and
benefits to which such party is entitled under this Installment Sale Agreement.
9.6 Counterparts. This Installment Sale Agreement may be executed in
-------------
any number of counterparts, each of which when executed and delivered shall be
deemed an original; such counterparts shall together constitute but one
agreement.
9.7 Corporations. Each party hereto is a corporation, and each
person executing this Installment Sale Agreement on behalf of a corporation
represents and warrants that: (a) such corporation is duly organized, validly
authorized and in good standing, and possesses full power and authority to enter
into and comply with the terms of this Installment Sale Agreement; (b) the
execution and delivery, and compliance with the terms, of this Installment Sale
Agreement have been duly and validly authorized by all requisite corporate acts
and consents and do not contravene the terms of any other obligation to which
the corporation is subject; (c) this Installment Sale Agreement, when effective,
shall constitute a legal, binding and valid obligation of such entity,
enforceable in accordance with its terms; and (d) each of the Parties hereto
shall furnish to the other party such evidence of such actions and consent, and
such legal opinions with respect thereto, as either of the Parties may
reasonably request.
9.8 Governing Law. This Installment Sale Agreement and the terms,
---------------
covenants and conditions hereof shall be construed in accordance with, and
governed by, the laws of the Commonwealth of Massachusetts (without giving
effect to any conflicts of law provisions contained therein).
IN WITNESS HEREOF, the Parties hereto have duly executed this Installment
Sale Agreement on this 31st day of July, 1998.
DIGITAL EQUIPMENT CORPORATION ALTAVISTA TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxx Xxxxxxxx
----------------------- ---------------------
Xxxxxx X. Xxxx Xxxx Xxxxxxxx
A-4
EXHIBIT I (INSTALLMENT SALE AGREEMENT)
xxxxxxx@xxxxxxxxx.xxx
xxxxxx@xxxxxxxxx.xxx
xxxxx@xxxxxxxxx.xxx
xxxxxxxxxxxx@xxxxxxxxx.xxx
xxxxxxxx@xxxxxxxxx.xxx
xxxxx@xxxxxxxxx.xxx
xxxxxxx@xxxxxxxxx.xxx
xxxxxx@xxxxxxxxx.xxx
xxxx@xxxxxxxxx.xxx
jlockyer@altavista-com
xxxxxxxxx@xxxxxxxxx.xxx
xxx@xxxxxxxxx.xxx
xxx@xxxxxxxxx.xxx
kb@altavista-com
xxxxxx@xxxxxxxxx.xxx
xxxxxx@xxxxxxxxx.xxx
kwolf@altavista-com
Iharmon@altavista-com
xxxxx@xxxxxxxxx.xxx
xxxxxxxx@altavista-com
xxxxxx@xxxxxxxxx.xxx
xxx@xxxxxxxxx.xxx
xxxxxxxx@xxxxxxxxx.xxx
hosting@altavista-com
hostingsupport@altavista-com
info@altavista-com
xxxxxxxxx@xxxxxxxxx.xxx
xxxx@xxxxxxxxx.xxx
xxxxxxxx@xxxxxxxxx.xxx
perldude@altavista-com
xxxxx@xxxxxxxxx.xxx
xxxxxxx@xxxxxxxxx.xxx
xxxxxxxxx@xxxxxxxxx.xxx
webdsign@altavista-com
A-5
EXHIBIT 2 (INSTALLMENT SALE AGREEMENT)
7% PROMISSORY NOTE
DIGITAL EQUIPMENT CORPORATION
$2,750,000 BOSTON, MA
DATE: JULY 31,1998
FOR VALUE RECEIVED, Digital Equipment Corporation, a Massachusetts
corporation (the "Company"), hereby promises to pay to the order of AltaVista
Technology, Inc., a California corporation (the "Seller"), and its successors
and assigns, the principal amount of two million seven hundred fifty thousand
dollars ($2,750,000), with interest on the principal amount outstanding
hereunder from time to time from the date hereof through and including the date
on which such principal amounts are paid, at the rate of seven percent (7%)
annually. Interest shall be computed on the basis of the actual number of days
elapsed and a year of 360 days.
This Note, together with all accrued and unpaid interest, shall be payable
in twelve quarterly investments commencing October 1, 1998 and ending July 1,
200 1. The first through the eleventh payments shall each be in the amount of
two hundred fifty six thousand sixty two dollars and eighty eight cents
($256,062.88); except that the first payment shall have deducted from to it per
them interest of $534.72 for each day between the date of this Note and July 1,
1998. The final payment shall be in the amount of all unpaid principal of and
interest on this Note. All payments shall be in lawful money of the United
States of America. Neither principal of nor interest on this Note may be
prepaid by the Company without the prior consent of the Seller, which consent
the Seller may withhold in its sole discretion.
ARTICLE I
EVENTS OF DEFAULT
At the option of the holder of this Note and without prejudice to any other
rights the holder hereof may have at law or in equity, all sums of principal and
interest then remaining unpaid hereunder shall immediately become due and
payable, without demand, presentment or notice, all of which are hereby
expressly waived, if any of the following occur ("Events of Default"):
1. 1. The Company breaches any covenant or other term or provision of
this Note and such breach continues for five days after written notice thereof
to Company from the holder hereof.
1.2. The Company becomes insolvent or admits in writing its inability
to pay its debts as they mature; makes an assignment for the benefit of
creditors; applies for or consents to the appointment of a receiver or trustee
for it or for a substantial part of its property or business; or such a receiver
or trustee otherwise is appointed.
A-6
1.3. Bankruptcy, insolvency, dissolution, winding up, reorganization or
liquidation proceedings or relief under any bankruptcy law or any law for the
relief of debtors is instituted by or against the Company and is not dismissed
within thirty days.
1.4. The Company fails to pay this Note when due in accordance with its
terms.
ARTICLE 11
MISCELLANEOUS
2.1. No amendment, modification or waiver of any provision of this Note
nor consent to any departure by the Company therefrom shall be effective unless
the same shall be in writing and signed by the holder hereof and such waiver or
consent shall be effective only in the specific instance and for the specific
Purpose for which given.
2.2. The Company hereby waives any requirements of notice of dishonor,
notice of protest and protest.
2.3. This Note shall be governed in all respects by the laws of the
Commonwealth of Massachusetts without giving effect to the conflict of law
provisions thereof.
2.4. This Note shall be binding upon the Company and its successors and
assigns and the terms hereof shall inure to the benefit of the Seller and its
successors and assigns, including
subsequent holders hereof.
2.5. The holding of any provision of this Note to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provisions, and the other provisions of this Note shall remain in full force and
effect.
2.6. If this Note becomes worn, defaced, or mutilated but is still
substantially intact and recognizable, the Company or its agent may issue a new
Note in lieu hereof upon the surrender of such worn, defaced, or mutilated Note.
If the holder of this Note claims that it has been lost, destroyed, or
wrongfully taken, the Company will issue a new Note in place of the original
Note if the holder so requests by written notice to the Company actually
received by the Company before it is notified that the Note has been acquired by
a bona fide purchaser.
2.7. If the holder or payee of this note changes its name or mergers
with or into another corporation or other entity, the Company shall upon request
issue a new Note of like tenor payable to the payee under its new corporate
name, or to the successor entity, in lieu hereof upon the surrender of this
Note.
A-7
2.8. Unless otherwise specified by the holder hereof on the date when
payment is due, payment under this Note shall be made at and all notices to
holders shall be delivered to, the following address:
AltaVista Technology, Inc.
0000 Xxxx Xxx. Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
DIGITAL EQUIPMENT CORPORATION
By: ____________________
Its:
By: ___________________
Its:
A-8
EXHIBIT I (Linking and Content Agreement)
CONTENT STANDARDS
The content, functionality and appearance of the Internet Web site located
at "xxx.xxxxxxxxx.xxx" shall be solely determined by AltaVista Technology, Inc.
("ATI"), provided, however, that ATI shall not include content available to the
public on the .xxx.xxxxxxxxx.xxx" Web site that is illegal, obscene, or
pornographic, or references products or services related to tobacco or firearms,
or that would be considered offensive by the average user of the AltaVista
Internet Search Service.
A-9
EXHIBIT B
LINKING AND CONTENT AGREEMENT
This Linking and Content Agreement ("Linking Agreement") is made and
entered into by and between Digital Equipment Corporation ("Digital"), a
Massachusetts corporation, and AltaVista Technology, Inc. ("ATI"), a California
corporation (collectively, the "Parties").
WHEREAS, Digital has developed and is operating the AltaVista Internet
Search Service which can currently be accessed at the domain name
'xxxxxxxxx.xxxxxxx.xxx'; and
WHEREAS, ATI has developed and is operating an Internet Web-based service
located at the domain name "xxxxxxxxx.xxx" which allows users to create and
share online photo albums and send electronic greeting cards;
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements herein contained and in the Agreement of the Parties entered into
contemporaneously with this Linking Agreement, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. Links.
-----
1.1 Commencing on the thirty-first day after the execution of this
Linking Agreement, Digital shall display one (1) textual link on the home page
of the AltaVista Internet Search Service to the Internet Web site located at the
domain name "xxxxxxxxx.xxx" for a period of eighteen (18) months. The link
shall appear under the "Services" menu of the AltaVista Internet Search Service
home page. ATI and Digital shall mutually determine the textual content of the
link; provided, however, that the textual content of the link must be of similar
appearance to all other links under the same menu. Digital shall have the
exclusive right to modify the appearance of the user interface for the AltaVista
Internet Search Service at any time; provided, however, that any such
modification will affect ATI in a manner similar to that of all other links
under the "Services" menu. At the expiration of the eighteen (18) month period,
the Parties shall undertake reasonable efforts to enter into a one year linking
and content agreement pursuant to which the Parties would share in revenue
generated from the Web site located at the domain name "xxxxxxxxx.xxx."
1.2 Commencing on the thirty-first day after the execution of this
Linking Agreement, Digital shall provide advertising impressions on the home
page of the AltaVista Internet Search Service to ATI consisting of a total of
eighteen (18) million impressions to be provided within an eighteen (18) month
period; provided, however, that no more than 1.5 million impressions will be
provided in any single month. Such advertising impressions shall be consistent
in placement and size as other advertising impressions on the home page.
2. Content.
-------
ATI shall have the exclusive right to determine the content displayed on
the Internet Web site located at the domain name "xxxxxxxxx.xxx"; provided,
however, that the content of that site must meet Digital's standards for the
acceptance of links on the AltaVista Internet Search Service Web site, as set
forth on Exhibit 1. Digital shall provide ATI with prompt notice of any
violation of its standards and ATI shall have one business day in which to
comply with such notice or restore the content of the site to the content
immediately prior to the notice. Thereafter, upon written request by ATI, the
Parties shall participate in binding arbitration within five (5) business days
over any unresolved content disputes before a mutually agreeable arbitrator in
Boston, Massachusetts. Time is of the essence and it is the Parties' intention
that any content disputes be resolved as soon as possible. If ATI fails or
refuses to restore the content of its site or if ATI fails or refuses to
arbitrate, Digital shall have the right to immediately take down the link.
3. Miscellaneous
-------------
3.1 Amendment and Wavier. This Linking Agreement may be amended,
-----------------------
modified, waived, discharged or terminated only by an instrument in writing of
subsequent or even date signed by both Parties.
3.2 Successors and Assigns. This Linking Agreement will be binding
------------------------
upon and inure to the benefit of the Parties and their respective successors and
assigns.
3.3 Delay or Omission. No delay or omission by either of the
--------------------
Parties in exercising any right under this Linking Agreement will operate as a
waiver of any right. A waiver of consent given by either of the Parties on any
occasion is effective only in that instance and will not be construed as a bar
to or waiver of any right on any other occasion.
3.4 Severability. In case any provision contained in this Linking
-------------
Agreement is determined by a court to be invalid or unenforceable, the validity
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
3.5 Additional Documents. Each of the Parties shall, upon the
---------------------
request of the other party, provide such other party with such additional
instruments, certificates and documents as the requesting party shall
reasonably require, whether or not such request is made after the date of this
Linking Agreement, in order to provide the requesting party with the rights and
benefits to which such party is entitled under this Linking Agreement.
3.6 Counterparts. This Linking Agreement may be executed in any
-------------
number of counterparts, each of which when executed and delivered shall be
deemed an original; such counterparts shall together constitute but one
agreement.
3.7 Corporations. Each party hereto is a corporation, and each
------------
person executing this Linking Agreement on behalf of a corporation represents
and warrants that: (a) such corporation is duly organized, validly authorized
and in good standing, and possesses full power and authority to enter into a
comply with the terms of this Linking Agreement; (b) the execution and delivery,
and compliance with the terms, of this Linking Agreement have been duly and
validly authorized by all requisite corporate acts and consents and do not
contravene the terms of any other obligation to which the corporation is
subject; (c) this Linking Agreement, when effective, shall constitute a legal,
binding and valid obligation of such entity, enforceable in accordance with its
terms; and (d) each of the Parties hereto shall furnish to the other party such
evidence of such actions and consent, and such legal opinions with respect
thereto, as either of the Parties may reasonably request.
3.8 Governing Law. This Linking Agreement and the terms, covenants
--------------
and conditions hereof shall be construed in accordance with, and governed by,
the laws of Commonwealth of Massachusetts (without giving effect to any conflict
of law provisions contained therein).
IN WITNESS HEREOF, the Parties hereto have duly executed this Linking
Agreement on this 31st day of July, 1998.
DIGITAL EQUIPMENT CORPORATION ALTAVISTA TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxx Xxxxxxxx
--------------------- -------------------
EXHIBIT C
PRESS RELEASE
COMPAQ ACQUIRES RIGHTS TO ALTAVISTA DOMAIN
HOUSTON, July 31, 1998 -- Compaq Computer Corporation (NYSE: CPQ) announced
today an agreement with AltaVista Technology, Inc. (AVT) of Campbell, California
to transfer to Compaq full rights to the AltaVista trademark and domain name,
xxx.xxxxxxxxx.xxx. The financial terms were not disclosed.
---------------
Under the deal, AVT sells, transfers and assigns all of its rights to the
trademark and domain name to Compaq. AVT will transfer to Compaq the
xxx.xxxxxxxxx.xxx URL within 30 days and notify all third parties of the change
to its Internet address. AVT's new Internet address will be xxx.XxxxxXxxx.xxx.
-----------------
This agreement supersedes all previous agreements between ATI and Digital
Equipment Corporation, which was purchased by Compaq in June.
ABOUT ALTAVISTA
Compaq's fast and powerful AltaVista Search Service is the premier resource
for locating information on the Internet. A forerunner in Web search
technology, AltaVista has set new standards, from indexing the entire Internet
to providing the Web's first instant language translation capabilities. With an
extensive line-up of innovative content and services, AltaVista is now regarded
as one of the top destination sites on the Web. For more information, visit
AltaVista's flagship site located at xxx.xxxxxxxxx.xxxxxxx.xxx.
--------------------------
COMPANY BACKGROUND
Compaq Computer Corporation, the world's largest computer manufacturer, is
a Fortune Global 200 company and the largest global supplier of personal
computers. Founded in 1982, Compaq develops and markets hardware, software,
solutions and services, including industry-leading enterprise computing
solutions, fault-tolerant business-critical solutions, networking and
communications products, commercial desktop and portable products and consumer
PCS. The company is a leader in environmentally friendly programs and business
practices.
Compaq products are sold and supported in more than 100 countries through a
network of authorized Compaq marketing partners. Customer support and
information about Compaq and its products are available at xxxx://xxx.xxxxxx.xxx
---------------------
or by calling 1-800-OK-COMPAQ. Product information and reseller locations are
available by calling 0-000-000-0000.
EXHIBIT D
MUTUAL RELEASE AGREEMENT
This Mutual Release Agreement ("Mutual Release Agreement") is made and
entered into by and between Digital Equipment Corporation ("Digital"), a
Massachusetts corporation, and AltaVista Technology, Inc. ("ATI"), a California
corporation (collectively, the "Parties").
WHEREAS, on or about March 19, 1996, the parties entered into a Trademark
License Agreement ("License Agreement") pursuant to which Digital granted ATI a
nonexclusive license to use the ALTAVISTA xxxx as part of the corporate name
"AltaVista Technology, Inc." and as part of the Internet domain name
"xxxxxxxxx.xxx";
WHEREAS, certain disputes have arisen relating to the Parties' performance
of their respective obligations under the License Agreement and relating to the
Parties' use of the ALTAVISTA xxxx;
WEREAS, Digital has asserted breach of contract, trademark infringement and
related claims against ATI in an action filed in the United States District
Court for the District of Massachusetts captioned Digital Equipment Corporation
v. Alta Vista Technology, Inc., Civil Action No. 96-12192 NG (D.Mass.) (the
"Action");
WHEREAS, ATI has asserted breach of contract, trademark infringement and
related counterclaims against Digital in the Action; and
WHEREAS, on or about July 31, 1998, the Parties entered into an Agreement
(the "Agreement") pursuant to which the Parties agreed, inter alia, to execute
mutual releases of claims between them, including the claims asserted in the
Action;
NOW THEREFORE, for and in consideration of the mutual promises, releases
and agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Release of ATI. In consideration of ATI's agreement to resolve the
----------------
Action pursuant to the terms and conditions of the Agreement, ATI's release of
claims against Digital as set forth in Article 2 below, and dismissal with
prejudice of the Action, the receipt and sufficiency of which are hereby
acknowledged, Digital, for itself and its divisions, subsidiaries, affiliates,
successors and assigns, hereby releases and forever discharges ATI and its
successors, assigns, divisions, affiliates, officers, directors, shareholders,
employees, agents and representatives, and each of them, from any and all manner
of claims, demands, damages, actions, causes of action, contracts, agreements,
charges, sums of money, claims for attorneys' fees and lawsuits of every kind
and description, whether known or unknown, now existing up to the date of this
release against ATI based upon, arising out of or having any connection in any
way whatsoever with the License Agreement, including, without limitation, any of
the claims asserted by Digital in the Action, any claims based on ATI's past use
of the ALTAVISTA xxxx or trade name, and any claims based on ATI's past use of
the Internet Web site located at the domain name "xxxxxxxxx.xxx."
However, Digital does not release any claims that may arise in connection with
the enforcement of the terms of the Agreement.
2. Release of Digital. In consideration of Digital's agreement to
--------------------
resolve the Action pursuant to the terms and conditions of the Agreement,
Digital's release of claims against ATI as set forth in Article I above, and
dismissal with prejudice of the Action, the receipt and sufficiency of which are
hereby acknowledged, ATI, for itself and its divisions, subsidiaries,
affiliates, successors and assigns, hereby releases and forever discharges
Digital and its successors, assigns, divisions, affiliates, officers, directors,
shareholders, employees, agents and representatives, and each of them, from any
and all manner of claims, demands, damages, actions, causes of action,
contracts, agreements, charges, sums of money, claims for attorneys' fees and
lawsuits of every kind and description, whether known or unknown, now existing
up to the date of this release against Digital based upon, arising out of or
having any connection in any way whatsoever with the License Agreement,
including, without limitation, any of the counterclaims asserted by ATI in the
Action, any claims based on Digital's past use of the ALTAVISTA xxxx or trade
name, and any claims based on Digital's past use of the Internet Web site
located at the domain name "xxxxxxxxx.xxxxxxx.xxx." However, ATI does not
release any claims that may arise in connection with the enforcement of the
terms of the Agreement.
3. California Civil Code Section 1542. The Parties acknowledge that they
-----------------------------------
are fully aware of the existence and meaning of California Civil Code
Section 1542, which provides as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor.
The Parties expressly waive the protection of Section 1542 and any right that
they may have to invoke its provisions, or any substantially similar provision
under any state or federal statute or law, with respect to the subject matter of
this Mutual Release Agreement.
IN WITNESS HEREOF, the Parties hereto have duly executed this Mutual Release
Agreement on this 31st. day of August,
1998.
DIGITAL EQUIPMENT CORPORATION ALTAVISTA TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxx Xxxxxxxx
--------------------- -------------------
EXHIBIT E
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
DIGITAL EQUIPMENT CORPORATION,
Plaintiff, CIVIL ACTION
v. NO. 96-12192NG
ALTAVISTA TECHNOLOGY, INC.,
Defendant.
STIPULATION OF DISMISSAL WITH PREJUDICE
---------------------------------------
Plaintiff Digital Equipment Corporation ("Digital") and Defendant AltaVista
Technology, Inc. ("ATI"), by their undersigned attorneys, stipulate, as follows:
1. All claims of Digital against ATI that are included in Digital's
Complaint (filed October 30, 1996) shall be and hereby are dismissed with
prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure.
2. All claims of ATI against Digital that are included in the Answer and
Counterclaims of Defendant AltaVista Technology, Inc. (filed March 26, 1997)
shall be and hereby are dismissed with prejudice pursuant to Rule 41 of the
Federal Rules of Civil Procedure.
3. Each party shall bear its own costs and both parties waive all rights of
appeal.
Dated: September 4, 1998. Dated: September 4, 1998.
DIGITAL EQUIPMENT CORPORATION ALTAVISTA TECHNOLOGY, INC.
By its attorneys, By its attorneys,
____________________________________ ______________________________
Xxxxxxx X. Xxxxx, P.C. (BBO #416540) Xxxxx X. Xxxxxxx (BBO #552293)
Xxxxxxxx X. XxXxxxx (BBO #631875) Xxxxxxxx & Sunstein LLP
Xxxxxxx, Procter & Xxxx LLP 000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx Xxxxxx, XX 00000
Xxxxxx, XX 00000 (000) 000-0000
(000) 000-0000
EXHIBIT F
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
DIGITAL EQUIPMENT CORPORATION,
Plaintiff,
v. NO. 98-1440
ALTAVISTA TECHNOLOGY, INC.,
Defendant.
STIPULATION OF DISMISSAL
------------------------
Defendant-Appellant AltaVista Technology, Inc. ("ATI") and Plaintiff-Appellee
Digital Equipment Corporation ("Digital"), by their undersigned attorneys,
stipulate as follows:
1. ATI and Digital have agreed that the appeal filed by ATI on March
13, 1998 shall be dismissed pursuant to Rule 42(b) of the Federal Rules of
Appellate Procedure.
2. ATI and Digital have agreed that each party shall bear its own
costs of appeal.
WHEREFORE, the Parties respectfully request that ATI's appeal be dismissed
Dated: September 4, 1998. Dated: September 4, 1998.
DIGITAL EQUIPMENT CORPORATION ALTAVISTA TECHNOLOGY, INC.
By its attorneys, By its attorneys,
_______________________________ ________________
Xxxxxxx X. Xxxxx, P.C. Xxx Xxxx Xxxxxxxx
(BBO #416540) (BBO #058480)
Xxxxxxxx X. XxXxxxx Xxxxx X. Xxxxxxx
(BBO#631875) (BBO #552293)
Xxxxxxx, Procter & Xxxx LLP Xxxxxxxx & Sunstein LLP
Exchange Place 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 000 10
(000) 000-0000 (000) 000-0000
