EXHIBIT 10.4
CONTENT LICENSE AND MARKETING AGREEMENT
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THIS CONTENT LICENSE AND MARKETING AGREEMENT (the "Agreement") is entered
into as of the 17th day of September, 1999, by and between RODALE INC., a
Pennsylvania corporation with its principal place of business located at 00 Xxxx
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000-0000 (hereinafter referred to as
"Rodale") and XXXXXXXXXXXX.XXX, INC., a Delaware corporation with its principal
place of business located at One Concord Farms, Second Floor, 000 Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as "MotherNature").
W I T N E S S E T H:
WHEREAS, Rodale is a publisher of books and magazines containing content,
inter alia, related to herbal supplements, vitamins and minerals; and
WHEREAS, MotherNature is the developer and operator of websites on the
World Wide Web encompassing content, community and e-commerce in the sale of
dietary supplements, herbal products, vitamins and minerals; and
WHEREAS, Rodale and MotherNature desire to enter into an Agreement
establishing a licensing, marketing and equity arrangement; and
NOW THEREFORE, intending to be legally bound hereby, the parties agree as
follows:
1. DEFINITIONS
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The above recitals are incorporated herein by reference as though set forth
fully and are a part of this Agreement.
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1.1 "Agreement", "Rodale" and "MotherNature" are defined as set forth in
the introduction and recitals to this Agreement.
1.2 "Books" means the compilation of text, illustrations, photographs,
tables and other editorial elements contained in a publication published by
Rodale in book form, whether printed, electronic, or any other medium now known
or hereafter invented, excluding those elements of the Book(s) identified on
Schedule 6.1 and/or future endorsement to Schedule 6.1.
1.3 "Change of Control" shall mean:
(a) The acquisition of ownership, directly or indirectly, beneficially
or of record by any person or entity controlling fifty (50%) percent or more of
the aggregate ordinary voting power represented by the authorized, issued and
outstanding voting capital stock of MotherNature; or
(b) The obtaining, by contract or otherwise, of the power to elect
one-half ( 1/2) of the members of the Board of Directors; or
(c) The succession to, or acquisition by, a third party, by merger or
otherwise, of all or substantially all of MotherNature's business, stock or
assets.
1.4 "Categories" shall mean the topics of vitamins, minerals, dietary
supplements, medicinal herbs, natural healing, alternative medicine (including
aromatherapy and homeopathy), cooking, and home health remedies, but excludes
pets, gardening and all other topics not listed as Categories.
1.5 "Co-Branded MotherNature Internet Site" shall mean a web site (or any
other internet distributed information service that uses the hypertext transfer
protocol or any successor or
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alternative protocol) on the World Wide Web that jointly promotes MotherNature
and a third party and for which the uniform resource locator ("URL") address is
owned, operated or controlled by MotherNature.
1.6 "Content" shall mean:
(a) Books previously published by Rodale and which are available for
sale in the current (Fall 1999) Rodale retail book catalog, the principal
editorial content of which are within one (1) or more of the Categories, and
which are listed on Schedule A attached hereto and incorporated herein by this
reference; and
(b) Those Books hereafter published by Rodale during the term of this
Agreement, the principal editorial content of which are within one (1) or more
of the Categories; such Books shall, pursuant to the terms of this Agreement, be
made a part of Schedule A by periodic endorsements to Schedule A; and
(c) Chapters of Books published by Rodale during the term of this
Agreement, the principal editorial content of which Chapters are within one (1)
or more of the Categories ("Relevant Chapters"), even though the principal
editorial content of the Book as a whole from which the Relevant Chapter(s) come
is not within one (1) of the Categories. Such Relevant Chapters shall, pursuant
to the terms of this Agreement, be made part of Schedule A by periodic
endorsements to Schedule A.
1.7 "Competitor" means any person or entity, or parent, subsidiary or
affiliate of such person or entity, which at the time of execution of this
Agreement or at any time during the term hereof derives forty (40%) percent or
more of its revenues from the sale to consumers of vitamins,
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minerals, supplements, herbs, drugstore products (over the counter and
prescription products which are ingested or topically applied) aromatherapy
products, or homeopathic products. By way of clarification, present competitors
include, without limitation, CVS/Xxxx.xxx, SelfCare, Xxxxxxxxx.xxx, RiteAid/GNC,
PlanetRx, Healthshop, e-nutrition, All Herbs, xxxxxxxx.xxx, Vitamin Shoppe,
Green Tree, xxxx.xxx and xxxxxxxx.xxx.
1.8 "Excerpts" means portions of the Content which are less than the
entire text and images of any single Book such as chapters, paragraphs,
sentences, outlines, summaries and synopses of any Book or portion thereof,
which chapters, paragraphs, sentences, outlines, summaries and synopses shall be
extracted from Content or prepared by MotherNature. The term "Content" shall
include Excerpts.
1.9 "Exclusive" means that Rodale shall not grant any license, sublicense
or other right, and shall not authorize or permit any third party to grant any
license, sublicense or other right, to any Competitor for the particular
activity described. All rights to use the Trademark are non-exclusive.
(a) Rodale Usage. All rights not specifically granted to MotherNature
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by this Agreement are reserved to Rodale. The rights reserved to Rodale shall,
except as may otherwise be provided herein, include the following:
(i) To promote the sale of its information based products in any
manner using all existing and future technologies and media which it deems
appropriate, without restriction, including on its own internet sites,
other internet sites or otherwise;
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(ii) To publish, promote and sell its Content in printed form
including, but not limited to, Books, magazines, specials and compilations,
adaptations and revisions thereof;
(iii) To use selected Content to promote the sales of Books,
magazines, specials, compilations, adaptations, revisions and any other
information based products of Rodale throughout the term of this Agreement;
(iv) To use its products and the content thereof in the print
medium and on Rodale's own sites on the World Wide Web;
(v) To enter into such arrangements with non-Competitors as it
shall deem fit in its sole discretion; and
(vi) To publish, promote, distribute and sell its information
based products, including Content, using all existing and future
technologies and media, including, but not limited to, electronic format
book publishing, such as published by Rocket Books.
1.10 "Internet Site" means any MotherNature owned, operated, or controlled
web site (or any other internet distributed information service that uses the
hypertext transfer protocol or any successor or alternative protocol) on the
World Wide Web. The term "Internet Site", includes any Co-Branded MotherNature
Internet Site.
1.11 "Modifications" means any Content that has been modified by changes
to its format, linking or presentation. By way of clarification and without
limiting the generality of the foregoing, Modifications do not include the
Internet Site or any other content made available on the Internet Site, or any
expert system created by MotherNature or its service providers or independent
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contractors, or any other features or functions within the Internet Site,
provided that no Content is included in such features or functions.
1.12 "Relevant Chapter(s)" shall have the meaning ascribed to that term in
Section 1.6(c).
1.13 "Stock Images" means photographs and slide transparencies which are
owned by Rodale without restriction, and which are contained in Rodale's Stock
Images library.
1.14 "Trademark" means the registered trademarks of Rodale.
1.15 "Web Enablement" means conversion of Content to an electronic medium
capable of displaying the Content on a computer monitor via the internet.
2. EFFECTIVE DATE AND TERM
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2.1 This Agreement shall become effective upon its execution by all
parties hereto (the "Effective Date"), and shall remain in effect for a period
of ten (10) years from that date, except as otherwise provided for herein.
3. CONTENT AND BOOK SALES RELATIONSHIP
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3.1 Term. The term of this Content and Book Sale Relationship shall be
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for ten (10) years.
3.2 Rights. Rodale agrees that MotherNature shall have:
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(a) The right to Web Enable those Books now listed on Schedule A and
those Books and Relevant Chapters which are hereafter added to Schedule A by
endorsement to Schedule A pursuant to the terms of this Agreement; and
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(b) The right to use, reproduce, have reproduced, display and transmit
the Content on the Internet Site and to make Modifications of the Content for
such purposes. Provided, however, that MotherNature will not provide, with
respect to the Internet Site, functionality which enables the user to download
an entire Book by clicking on a button, link or similar feature. The parties
acknowledge that no technology exists to prevent the unauthorized transmission,
distribution, downloading or printing of Books. MotherNature agrees that, in
the event that such technology exists in the future, it will use commercially
reasonable efforts, taking cost effective technological feasibility into account
to install or to make operative as a part of the Internet Site software which
prevents the unauthorized transmission, distribution, downloading or printing of
Books.
The rights granted by this Section 3.2 shall be Exclusive for a period
which, with respect to each particular Book, is the shorter of:
(i) Five (5) years from the date on which MotherNature Web
Enables such Book; or
(ii) The balance of the term of this Agreement.
(c) Excerpts. MotherNature shall have the right to use, reproduce,
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have reproduced, display, and transmit Excerpts on the Internet Site, provided
that each Excerpt shall:
(i) Identify the name of the Book from which such Excerpts is
extracted; and
(ii) Contain a click-to-buy feature as set forth in Section
3.4(ii), hereof; and
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(iii) All Excerpting shall maintain the editorial integrity of
the health information contained in the Content from which the Excerpt was
taken or created.
3.3 Schedule A Designations.
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(a) Rodale represents and warrants that Schedule A contains a full,
complete and accurate list of the titles of all Books previously published by
Rodale that are available for sale in the current (Fall 1999) Rodale retail book
catalog and the principal editorial content of which is within one (1) or more
of the Categories. Schedule A shall be binding and conclusive unless objected
to by MotherNature within six (6) months of the date of this Agreement. In the
event of an objection by MotherNature, Rodale and MotherNature shall devote
their mutual good faith and best efforts to resolve the objection. If
MotherNature's objection cannot be resolved within thirty (30) days after such
objection has been delivered to Rodale, the dispute shall be resolved by
arbitration pursuant to Section 3.3(d).
(b) Periodically during the term of this Agreement, but not less
frequently than three (3) times per year, Rodale shall furnish to MotherNature:
(i) A list of the titles of all Books published by Rodale since
the later of the date of this Agreement or the date of the most recent
endorsement to Schedule A (which list may include subsequent editions
correcting, modifying or otherwise editing prior editions of Books
appearing on Schedule A and/or prior endorsements to Schedule A); and
(ii) A proposed endorsement to Schedule A setting forth the
titles of those Books and Relevant Chapters which Rodale had determined to
be Content.
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Rodale's proposed endorsement(s) to Schedule A shall be binding and conclusive
unless objected to by MotherNature within ninety (90) days of receipt. In the
event of an objection by MotherNature, Rodale and MotherNature shall devote
their mutual good faith and best efforts to resolve the objection. If
MotherNature's objection cannot be resolved within thirty (30) days after such
objection has been delivered to Rodale, the dispute shall be resolved by
arbitration pursuant to Section 3.3(d).
(c) Under Rodale's customary contracts with outside authors, Rodale's
rights to license Book(s) or Relevant Chapter(s) may terminate if the Book is no
longer in print. Rodale also, from time to time, withdraws Books from
publication and distribution when, in Rodale's judgment, the information
contained in a Book has become stale or inaccurate. If Rodale determines that
the rights to license to MotherNature Content now or hereafter listed on
Schedule A or an endorsement thereto have terminated or are about to terminate,
or if Rodale withdrawn a Book from publication and distribution because, in
Rodale's judgment, the information contained in such Book(s) has become stale or
inaccurate, Rodale shall give to MotherNature notice that such Content shall be
withdrawn from Schedule A, effective thirty (30) days from the giving of such
notice. Rodale's notice shall be binding and conclusive unless objected to by
MotherNature within thirty (30) days of receipt. In the event of an objection
by MotherNature, Rodale and MotherNature shall devote their mutual good faith
and best efforts to resolve the objection. If MotherNature's objection cannot
be resolved within thirty (30) days after such objection has been delivered to
Rodale, the dispute shall be resolved by arbitration pursuant to Section 3.3(d).
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Any Book(s) or Relevant Chapter(s) withdrawn from Schedule A pursuant to
this Section 3.3(c) shall no longer be Content and shall be removed by
MotherNature from the Internet Site within thirty (30) days.
(d) Unresolved disputes under Sections 3.3(a), 3.3(b) and 3.3(c) shall
be resolved by arbitration before a single arbitrator who shall conduct his or
her arbitration proceedings in New York, New York. The arbitration shall be
administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules, and Rodale and MotherNature shall equally divide
the arbitrator's fees and the administrative costs. Judgment on the
arbitrator's award may be entered in, and enforced by, any court of competent
jurisdiction.
3.4 Book Selection. MotherNature agrees that it shall Web Enable the
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Content and incorporate such Web Enabled Content into MotherNature's online
library, all to the extent that MotherNature, after reasonable consultation with
Rodale with respect thereto, in its reasonable business judgment deems such
actions to be commercially desirable.
(a) The Library. MotherNature and Rodale will cooperate to commence
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creation of the Web Enabled Library within thirty (30) days of the date of this
Agreement. The Internet Site shall have the following functionality with
respect to the Library:
(i) The Library will be a major category, currently denominated
as a "tab" on the Internet Site home page. Rodale and MotherNature shall
consult in good faith concerning the title of the Library "tab".
(ii) MotherNature shall be entitled to merchandise products on
the same page as Content is displayed, but such merchandising shall occur
in a clearly defined,
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segregated area. Editorial integrity of the Content shall be maintained.
MotherNature agrees that Content, when used on the same page as product
merchandising content, may not be editorially modified (except by
Excerpting), but may be modified as to typeface, size and format. The
parties shall mutually agree to the general layout and format of all
merchandising areas.
(iii) All references to Rodale Book titles throughout the
Internet Site will include a purchase link, enabling visitors to the site
to "click" on any Rodale book title and proceed directly to a purchase
("click-to-buy") page. The function to "click-to-buy" a Rodale Book shall
not directly link the Internet Site user to the print publications of any
person or entity other than Rodale.
(b) Book Sales.
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(i) The Internet Site shall contain a special "Rodale Book"
section which permits the visitor to "click-to-buy", and which shall offer
for sale Rodale Books, selected at the discretion of MotherNature,
appropriate to the section of the Internet Site that the customer is
viewing. The special "Rodale Book" section will consist of not fewer than
fifty (50) Rodale Books.
(ii) Book Pricing and Stock. MotherNature in its sole discretion
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will stock fast moving Books in its warehouse. MotherNature and Rodale
agree that slower moving Books will not be stocked at MotherNature's
warehouse, but will be maintained in Rodale's warehouse and shipped to
MotherNature's warehouse upon receipt of orders, which orders will be
transmitted from MotherNature to Rodale via the World Wide Web. Rodale
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agrees to sell Books to MotherNature in accordance with the Special Markets
Discount Schedule (the "Schedule") attached hereto as Schedule B, which
Schedule is incorporated herein by reference as though set forth fully.
Throughout the term of this Agreement, Rodale agrees to modify the Schedule
in accordance with the most favorable discounts, terms and conditions
offered to any purchaser of the kind described on Schedule B. The sale of
Books to MotherNature is non-exclusive.
(c) Trial Basis Sales. Within six (6) months from the date of
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execution of this Agreement, MotherNature will create a separate Rodale Book
section on the Internet Site for sale of Rodale Books on a "Trial Basis". Said
section shall be co-branded by MotherNature and Rodale. Customers will have the
ability to order a selection of Rodale Books on a free trial basis. The section
shall be constructed to provide that orders will be made directly to Rodale, and
not through MotherNature. With respect to all Books sold in the Trial Basis
section of the Internet Site, Rodale agrees to pay to MotherNature a commission
equal to the highest rate of commission (but not less than twenty (20%) percent)
on Net Sales (gross sales less accruals for returns and bad debt (estimated by
Rodale in its commercial good faith, based on Rodale's actual experience),
exclusive of postage, handling and sales tax) being paid to any third party
internet seller of Rodale Books.
Rodale will pay such commissions to MotherNature on a quarterly basis,
not later than thirty (30) days after the end of each calendar quarter, and
Rodale shall provide to MotherNature a statement providing reasonable detail as
to the number of Books sold on a Trial Basis and Net Sales therefrom.
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(d) Third Party/Remote Web Sites. MotherNature shall have the right
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to repurpose a de minimis portion of the Content for use as a "teaser" on any
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MotherNature controlled or operated website on the World Wide Web or third party
remote content sites managed by or affiliated with MotherNature, subject to the
prior approval by Rodale of such third party remote content site, which approval
shall not be unreasonably be withheld.
(f) Author Compensation. With respect to Rodale Books and Relevant
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Chapters authored by non-Rodale employees as identified on Schedule A,
MotherNature agrees to pay to Rodale a licensing fee of Five Thousand
($5,000.00) Dollars for each Book or Relevant Chapter which is Web Enabled.
Payment shall be due from MotherNature to Rodale upon the execution of this
Agreement for those Books authored by non-Rodale employees identified on
Schedule A.
With respect to non-Rodale employee authored Books and Relevant
Chapters published by Rodale after the date of this Agreement and which become a
part of Schedule A by endorsement thereto pursuant to Section 3.3(b), Rodale
shall use commercially reasonable efforts to obtain Web Enablement rights from
the authors thereof. With respect to any Book which is added to Schedule A by
endorsement and is thereafter Web Enabled, and each Book from which one (1) or
more Relevant Chapter(s) are added to Schedule A by endorsement and such
Relevant Chapter(s) are thereafter Web Enabled, MotherNature shall pay to Rodale
a fee of Five Thousand ($5,000.00) Dollars per Book. Such fee shall be payable
by MotherNature to Rodale within thirty (30) days of completion of Web
Enablement of such Book(s) or Relevant Chapters.
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3.5 Health Sieve Distribution and News Clipping Exchange.
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(a) Health Sieve. Rodale will provide distribution of its Health
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Sieve to MotherNature in the same format and on the same frequency as provided
to Rodale employees. Rodale's Health Sieve may be incorporated into
MotherNature's news services. MotherNature shall have the right to modify the
Health Sieve and to use, reproduce, have reproduced, display, and transmit the
Health Sieve in any form on the Internet Site. At Rodale's request,
MotherNature shall display a credit to Rodale in such form as is mutually agreed
to by Rodale and MotherNature. In the event that MotherNature changes the
content of the Health Sieve, MotherNature will have sole responsibility for such
changes. Except as provided herein, no publication, distribution, sale,
assignment or license of Rodale's Health Sieve or any portion thereof shall be
made by MotherNature without the prior written approval of the President, Rodale
Book Division, or his designee, which approval shall be at the sole discretion
of such individual.
(b) News Services. MotherNature will distribute its news services to
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Rodale in the same format and with the same frequency as MotherNature
distributes to its employees and/or customers.
(c) Exclusivity. The obligations of MotherNature and Rodale relative
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to news clipping and news alert services and the Health Sieve shall be non-
exclusive.
3.6 Consultation with Rodale Researchers. Rodale will provide
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consultation with Rodale's researchers to MotherNature for not more than eight
(8) hours per week, non-cumulative, during the term of this Agreement.
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(a) Exclusivity. The rights granted with respect to consultation with
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Rodale researchers shall be non-exclusive.
3.7 Question and Answer Column. Rodale agrees that its authors, writers,
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editors or experts will provide two (2) new columns per month during the term of
this Agreement in a question and answer format for display on the Internet Site.
Each column shall consist of no more than three (3) questions, and each answer
shall be no longer than three hundred (300) words.
The parties have discussed the possibility that Rodale's authors and
editors will participate in online "chats", the nature and extent of which shall
be subject to the mutual agreement of the parties with respect thereto.
(a) Exclusivity. The rights granted with respect to the question and
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answer column shall be non-exclusive.
3.8 Assistance in Publishing MotherNature Books.
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(a) Publication. Rodale agrees to custom publish, at the request of
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MotherNature, a series of books in the English language carrying the
MotherNature imprint, such series not to exceed twenty (20) such books during
the term of this Agreement. Rodale and MotherNature agree that Rodale shall be
obligated to publish not fewer than three (3) nor more than six (6) books during
the first year of the term of this Agreement. The number of books to be
published in subsequent years shall be as mutually agreed, but shall not exceed
three (3) books in any one year. MotherNature acknowledges that the content of
such book may be based upon re-purposed material. Rodale and MotherNature shall
mutually agree with respect to the outline, content, trim size and number of
pages of each book in the series.
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(b) Cost. MotherNature shall pay to Rodale the cost of publication,
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including internal labor costs for writing, editing, research and design, paper,
pre-press, printing and binding, plus seven and one-half (7.5%) percent of all
costs. Prior to the commencement of any custom publishing process, the parties
will agree to a budget with respect to the cost.
(c) Distribution. Rodale shall have the right, at its sole option, to
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distribute such books to the Trade (bookstores, both physical and electronic,
and other retail outlets which sell books). In the event that Rodale chooses to
distribute such books to the Trade, then MotherNature shall have the right to
distribute such books in all non-Trade channels of distribution in the United
States. In the event that Rodale chooses not to distribute such books to the
Trade, then MotherNature shall have the right to distribute such books in the
Trade and in all non-Trade channels of distribution within the United States.
(d) Copyright Ownership. MotherNature agrees that Rodale shall be the
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owner of the copyright and all other intellectual property to such books as are
published in accordance with this section. MotherNature acknowledges that
ownership of each book shall be solely and exclusively vested in Rodale.
MotherNature agrees that each book is a work-for-hire within the meaning of the
copyright law, and Rodale will be considered the owner of each book for all
purposes, including copyright. To the fullest extent permitted by law,
MotherNature hereby assigns any copyright which it may acquire in any of the
books to Rodale for the duration of the copyright and any extensions thereof.
MotherNature appoints Rodale its attorney-in-fact to execute any documents
necessary to transfer and assign any copyright interest of MotherNature in the
books to Rodale.
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(e) Exclusivity. The obligations of Rodale with respect to this
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section shall be non-exclusive.
3.9 Access to Electronic Image Library.
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(a) Stock Images. Rodale grants to MotherNature electronic access to
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Rodale's Stock Images for use on the Internet Site. The right to use Stock
Images other than on the Internet Site or Co-Branded MotherNature Internet Sites
will be subject to Rodale's prior approval, which may be granted or refused at
Rodale's sole discretion.
(b) Exclusivity. The rights granted to MotherNature under this
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section are non-exclusive.
3.10 Recipes.
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(a) Recipes. Rodale grants to MotherNature the right to create a
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separate content section within the Internet Site which utilizes Rodale's
recipes from Content included on Schedule A. MotherNature shall, as it deems
appropriate, link such recipes to medical conditions contained within the
Library and other information areas of the Internet Site.
(b) Links. Each recipe shall contain a reference to the title of the
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Rodale Book in which such recipe appeared and a link to a "click-to-buy" page,
by which consumers can purchase such Book.
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4. MARKETING RELATIONSHIP
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4.1 Access to Customer Databases.
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(a) Access. MotherNature and Rodale will each have reasonable access
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to the customer database of the other for direct marketing acquisition and
direct marketing retention by means of conventional direct mail marketing
methods or by means of e-mail direct marketing methods, and ad hoc customer
analysis by either party for its own purposes. Such access shall be limited as
follows:
(i) Access shall be subject to the privacy policies of
MotherNature and Rodale which may limit the release of individual customer
identification; and
(ii) Except as provided in Section 12.2 of this Agreement,
neither party shall sell, transfer, assign, share or otherwise permit any
third party to have access to or use any information which it obtains from
the customer database of the other.
As a permitted use, for example, MotherNature may perform an N-th name
select and send an offer to a random sample of Rodale's database. Using
purchase behavior information, the parties database analysts will develop agreed
upon optimal communications plan that will guide each in the selection of names
from the other's database. Each party agrees to reimburse the other for third
party costs incurred as a result of that party's access to the other party's
customer database.
(b) Exclusivity. The rights granted to MotherNature under this
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section shall be Exclusive.
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(c) Term. Notwithstanding any other section of this Agreement, the
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term of the license granted in this Section 4.1 shall be for a period of seven
(7) years commencing on the date Effective Date of this Agreement.
4.2 Magazine and Book Purchases for Promotional Use.
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(a) Book Purchases. Rodale grants to MotherNature the right to
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purchase Books for promotional use with other MotherNature products, except
Rodale Books, at Rodale's cost (paper, printing, binding and pre-production
costs) plus five (5%) percent of all such costs.
(b) Magazine Purchases. MotherNature may request from each Rodale
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magazine publisher or circulation manager the right to purchase magazines for
promotional use. The right to such purchase, including quantity and price,
shall be as determined by the mutual agreement of the parties, if any.
(c) Exclusivity. The rights granted in this section are non-
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exclusive.
4.3 Offer Inserts in Book and Invoice Shipments.
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(a) Inserts. Rodale grants MotherNature the right to insert
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promotional materials in up to five million (5,000,000) Book shipments or
billing statements per year throughout the term of this Agreement. MotherNature
may request that its promotional materials be inserted into shipments of, or
invoices for, specific Rodale Book titles, and Rodale will use its best efforts
to perform the insertions in the shipment or invoicing of such specific titles.
(b) Specifications. Specifications for such inserts shall conform in
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format, size and weight to Rodale requirements. MotherNature shall, at its
cost, produce its own advertisements and provide printer-ready copy and art to
Rodale.
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(c) Incremental Costs. In the event that postage and handling of such
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inserts will result in an incremental cost incurred by Rodale, Rodale shall
advise MotherNature in advance with respect to such costs. In the event that
MotherNature approves and accepts such costs, MotherNature shall be responsible
for and shall pay to Rodale, within thirty (30) days of billing, all such
incremental costs. In the event that MotherNature does not approve and accept
such costs, then such insert shall be not processed or inserted into any Book
shipments or billing statements.
(d) Exclusivity. The rights granted in this section shall be
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Exclusive.
4.4 Magalogs.
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(a) Rodale agrees to consider, subject to availability and successful
testing, in its sole discretion, a listing for MotherNature in Rodale magalogs.
(b) The rights granted by this Section shall be non-exclusive.
4.5 Magazine Cross-Promotion.
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(a) Prevention Advertising and Supplement News. Rodale agrees to
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provide to MotherNature the following:
(i) One (1) four-color full page advertisement for the Internet
Site in six (6) issues of Prevention magazine per year;
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(ii) One (1) four-color full page advertisement for the Internet
Site in twelve (12) issues of Prevention specials per year;
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(iii) The right to use, as is and unaltered, the Prevention
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columns titled "Supplement News" and "Alternative Medicine News" on the
Internet Site. Such posting of each column on the Internet Site shall take
place no sooner than sixty (60) days after the on
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sale date of the Prevention issue in which it appears and shall include the
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following legend: "By permission from Prevention Magazine; (C)Rodale Inc.
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1999" (or other appropriate year). In the event that either "Supplement
News" or "Alternative Medicine News" is no longer published in Prevention
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magazine, the rights granted by this paragraph shall apply to comparable
columns of the magazine, as may be agreed upon by the parties from time to
time. The rights granted with respect to these columns shall be Exclusive;
(iv) Advertising provided to MotherNature pursuant to Section
4.5(a)(i) and 4.5(a)(ii) shall be without charge to MotherNature provided
that advertising materials are received by Rodale in accordance with the
specifications of the then current rate card for Prevention magazine.
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4.6 Co-Marketing Opportunities. MotherNature will provide cross-selling
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promotions to Rodale for use in its subscription publications and sell-through
support. The scope and nature of such activities shall be mutually agreed upon
by Rodale and MotherNature.
4.7 Technology Exchange. The parties agree to engage in an ongoing
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exchange of technology ideas and information. Subject to mutual agreement, each
party may share such ideas and information with the other as may be helpful in
selling the products of the other party and in the promotion and advancement of
the Internet Site. Notwithstanding the foregoing, neither party shall be
obligated at any time to release to the other any confidential information or
trade secrets.
21
5. CONSIDERATION; BOARD OF DIRECTORS
---------------------------------
5.1 Consideration. In consideration of the rights and licenses granted by
-------------
Rodale under this Agreement, and Rodale's other obligations under this
Agreement, MotherNature agrees to enter into and perform the Purchase Agreement
(as hereinafter defined).
5.2 Board of Directors. Rodale shall have observer rights with respect to
------------------
MotherNature's Board of Directors in accordance with Article 5.01(k) of the
Purchase Agreement (as hereinafter defined). In addition to the foregoing,
MotherNature agrees that for so long as Rodale owns not less than four (4%)
percent on a fully diluted basis of the issued and outstanding common stock of
MotherNature, and Rodale is not in default of Section 11.2 of this Agreement,
MotherNature agrees to use its best efforts to secure the nomination of a Rodale
representative to the Board of Directors of MotherNature and agrees to recommend
to the Shareholders of MotherNature that such representative be elected to the
Board of Directors.
22
6. WARRANTIES AND RIGHTS
---------------------
6.1 Warranties of Rodale. With respect to all Content listed on Schedule
--------------------
A, Rodale represents, warrants and covenants that, except as is set forth on
Schedule 6.1 attached hereto and incorporated herein by this reference, or as is
set forth on an endorsement to Schedule 6.1 delivered in connection with an
endorsement to Schedule A pursuant to Section 3.3(b), it has obtained, or shall
obtain prior to delivery of such Content to MotherNature, all permissions and
releases which are necessary to grant to MotherNature the license set forth
herein. Rodale further represents, warrants and covenants that Schedule 6.1 is
full, complete and accurate. Rodale represents, warrants and covenants that,
notwithstanding any exceptions set forth on Schedule 6.1, Rodale has obtained
all permissions and releases which are necessary to grant to MotherNature the
license set forth herein for not less than ninety-five (95%) percent of the
total, editorial text, in the aggregate, contained in those Books which are
listed on Schedule 6.1. Rodale represents and warrants that as of the date
hereof, nothing in the Content is obscene, nothing in the Content infringes upon
the rights of any party, is libelous or violates the copyrights, trademarks,
intellectual property rights or rights of privacy or publicity of any party
whatsoever and the licensing and use by MotherNature of Content in accordance
with the terms of this Agreement will not infringe or violate the copyrights,
trademarks, intellectual property rights, or rights of publicity or privacy of
any party whatsoever. The delivery of new Content by endorsement to Schedule A
pursuant to Section 3.3(b) of this Agreement shall constitute a reaffirmation of
the representations and warranties contained in this Section with respect to the
new Content. Rodale warrants that it has the right to license the Trademark to
MotherNature and that the license of the Trademark does not constitute a
violation or infringement of any trademark or other right in the Trademark.
Rodale covenants and agrees to pay
23
any royalties or similar compensation payable to any party by reason of the
licensing of the Content to MotherNature under this Agreement.
Rodale represents and warrants that:
(a) The determination by Rodale's Board of Directors of the fair
market value of the shares of common stock issued pursuant to the Stock Purchase
Agreement of even date herewith between the parties hereto (the "Purchase
Agreement") was made in good faith, based upon an independent third party
assessment of fair market value, and the description of such valuation that was
previously delivered to MotherNature is accurate;
(b) No authorization, approval or permission of, nor filing with, the
Federal Trade Commission by or on behalf of either Rodale or MotherNature is
required in connection with the execution of this Agreement and/or the issuance
and sale of the shares of common stock pursuant to the Purchase Agreement.
6.2 Warranties of MotherNature. MotherNature represents and warrants that
--------------------------
as of the date hereof, nothing contained on the Internet Site is obscene and, to
its knowledge, nothing contained on the Internet Site infringes upon the rights
of any party, is libelous, violates the copyrights, trademarks, intellectual
property rights, rights of privacy or publicity of any party whatsoever.
MotherNature covenants that is shall use commercially reasonable efforts to
ensure that nothing on the Internet Site will infringe upon the rights of any
party, be libelous, obscene, violate the copyrights, trademarks, intellectual
property rights, rights of privacy or publicity of any party whatsoever.
24
(a) MotherNature further represents that:
(i) The performance of any of the matters provided for in this
Agreement is not contrary to any material statute, rule, regulation or
order, the violation of which would have a material adverse affect on
MotherNature's or Rodale's business or operations; and
(ii) All activities of the parties with reference to the Internet
Site as contemplated by this Agreement are in compliance with all current
material laws related to the to the promotion and sale of drugs, dietary
supplements, herbal products, vitamins and minerals as governed by the Food
and Drug Administration and the Federal Trade Commission, the violation of
which would have a material adverse affect on MotherNature's or Rodale's
business or operations. MotherNature represents that it has consulted with
counsel expert in such matters and covenants that it shall consult
regularly with counsel expert in such matters with respect to continued
compliance with all material statutes, rules, regulations and orders of any
applicable authority, including without limitation, the Food and Drug
Administration and the Federal Trade Commission. MotherNature covenants
that it shall consult regularly with Rodale regarding all of such matters
throughout the term of this Agreement; and
(iii) MotherNature covenants and agrees with Rodale that the
Internet Site shall not advertise, sell or promote the sale of products for
the production of genetically-altered crops, livestock, or other
foodstuffs. In the event that Rodale claims that MotherNature is in
violation of this covenant, Rodale shall give MotherNature notice of such
claim, specifying the alleged violation and requesting that it be cured.
In the event the
25
parties are unable to resolve Rodale's objection within thirty (30) days of
such notice, the dispute shall be resolved by arbitration pursuant to
Section 3.3(d).
6.3 Preservation of Rights. MotherNature acknowledges that Rodale shall
----------------------
be and remain the sole proprietor of all intellectual property rights with
respect to the Content and the Trademark, including copyrights. In the event
that MotherNature obtains any right or interest in the Trademark or the Content
contrary to the intention of this Agreement, MotherNature shall promptly assign
and transfer such right or interest, free of charge, to Rodale or its designee.
MotherNature shall notify Rodale promptly of any violations, infringements or
misuses by third parties of Rodale's copyrights, trademarks, trade names, the
Content or the Trademark or other rights coming to its attention and shall
cooperate fully with Rodale in taking any action necessary to protect such
rights. MotherNature shall not be obligated to undertake any proceedings
relative to the Content and the Trademark. Rodale shall reimburse MotherNature
for any expenses reasonably incurred by MotherNature at Rodale's request and
with Rodale's prior approval. Rodale shall have the right to conduct legal
proceedings relating to the Content and the Trademark and shall, at its sole
discretion, determine what legal measures, if any, shall be undertaken with
respect to any infringement, alleged infringement or other violations of its
rights. MotherNature agrees to fully cooperate with Rodale as regards to the
prosecution of any such action, claim or proceeding.
26
7. CONFIDENTIALITY
---------------
7.1 Each party to this Agreement acknowledges that it may receive
confidential information ("Confidential Information") of the other party. For
purposes of this Agreement, "Confidential Information" shall mean any trade
secret, information, process, technique, algorithm, computer program (source and
object codes), design, drawing formula, test data, business development and
marketing plans and concepts, records and files, financial data and budgetary
information, income or sales data or projections, customer lists, information
regarding customers, facilities, suppliers, plans or market analysis which is
provided by either party in writing or in electronic form.
7.2 Each party covenants, and agrees that:
(a) It will not, at any time, reveal, divulge, or make known to any
person, firm, corporation, or other entity any Confidential Information of the
other party;
(b) It will not publish, communicate, divulge, disclose or use such
information for any purpose not authorized by the other party, nor make copies
or disclose in any manner Confidential Information to any third party without
prior written consent of the other party;
(c) It will not use the Confidential Information of the other party
for any purpose except to the extent required to accomplish the intent of this
Agreement; and
(d) It will return to the other party or destroy any documents
(including copies, if any) containing Confidential Information of the other
party after the need for such information has expired, or upon the request of
the other party, and, in any event, upon completion or termination of this
Agreement.
27
7.3 Each party shall take reasonable security precautions, at least as
great as the precautions it takes to protect its own trade secrets, with respect
to the Confidential Information which it receives and shall disclose
Confidential Information on a need to know basis only to its subsidiary, agent
or subcontractor who is obligated to treat the Confidential Information in a
manner consistent with all the obligations of this Agreement.
7.4 The term "Confidential Information" does not include information which
the receiving party can demonstrate:
(a) Is now or hereafter becomes available in the public domain, to the
publishing trade, or within the internet industry without improper disclosure by
the receiving party;
(b) Is known to the receiving party at the time of receipt of such
information;
(c) Is furnished to the receiving party by a third party without a
violation of this Agreement;
(d) Is the subject of written permission to disclose provided by the
other party; and
(e) Is independently acquired or developed by the receiving party, its
employees, agents, affiliates or advisors.
7.5 Each party agrees that any breach of obligations under this Section 7
shall be a material breach of this Agreement and result in irreparable harm to
the non-disclosing party for which damages would be an inadequate remedy and, in
addition to the rights and remedies otherwise available at law, the non-
disclosing party shall be entitled to equitable relief, including injunction, in
the event of such breach.
28
7.6 The obligations contained in this Section 7, notwithstanding any other
provision of this Agreement, shall terminate and end, absolutely, one (1) year
after the date of termination or expiration of this Agreement.
7.7 The obligations contained in this Section 7 shall not apply to any
confidential information which is required to be disclosed by either party as a
result of law, regulation, court order or other legal process, provided that the
party required to make such disclosure shall give prompt notice, and in all
events prior to such disclosure, to the other party of the requirement of
disclosure and all material information relevant thereto to enable such party to
seek an appropriate protective order or other relief from an appropriate court
or agency.
8. INDEMNIFICATION
---------------
8.1 Rodale shall indemnify MotherNature and hold MotherNature harmless
from and against any and all liabilities, losses, damages, claims, payments,
judgments, costs and expenses (including attorneys' fees) suffered or incurred
by MotherNature as a result of any claim or cause of action arising out of or
relating to:
(a) Rodale's performance or failure to perform its obligations under
this Agreement; or
(b) Arising out of any breach or alleged breach of Rodale's covenants,
representations and warranties contained in Section 6 of this Agreement; or
29
(c) Arising out of any claim by any user of the Internet Site that the
Content caused personal injury or illness, provided, however, that there shall
be excluded from indemnification obligation imposed by this Section 8.1(c):
(i) Claims founded solely upon the use or ingestion of products
sold or supplied by MotherNature; and
(ii) Claims arising from any editorial Excerpting of Content by
MotherNature which failed to maintain the editorial integrity of the health
information contained in the Content from which the Excerpt was taken or
created.
8.2 MotherNature shall indemnify Rodale and hold Rodale harmless from and
against any and all liabilities, losses, damages, claims, payments, judgments,
costs and expenses (including attorneys' fees) suffered or incurred by Rodale as
a result of:
(a) Any claim or cause of action arising out of or relating to
MotherNature's performance or failure to perform its obligations under this
Agreement; or
(b) Arising out of any breach or alleged breach of MotherNature's
representations, warranties and covenants contained in Section 6 of this
Agreement; or
(c) Any claim or cause of action against Rodale, except for any claim
or cause of action relating to Content included on the Internet Site in
compliance with this Agreement, alleging that anything contained in the Internet
Site infringes upon the rights of any party, is libelous, is obscene, violates
the copyrights, trademarks, intellectual property rights, rights of privacy or
rights of publicity of any party whatsoever.
(d) Any claim or cause of action against Rodale alleging that
30
(i) The performance of any of the matters provided for in this
Agreement is contrary to any material statute, rule, regulation or order,
the violation of which would have a material adverse affect on
MotherNature's or Rodale's business or operations or the activities of the
parties with reference to the Internet Site, fail to comply with all then
current material laws relating to the promotion and sale of drugs, dietary
supplements, herbal products, vitamins and minerals as governed by the Food
and Drug Administration and the Federal Trade Commission.
9. DEFAULT
-------
9.1 Default means:
(a) The failure of either party to perform any material obligation
under this Agreement which failure is not remedied within thirty (30) days after
receipt of written notice from the other party demanding such remedy; or
(b) The failure of either party to indemnify and hold the other
harmless in accordance with Section 8 of this Agreement, which failure to
provide indemnity shall not be remedied within thirty (30) days after receipt of
written notice demanding such indemnity; or
(c) The entry of any judgment, final order or decree against either
party with respect to any matter which is the subject of indemnification by the
other party under Section 8 of this Agreement.
31
9A. CHANGE OF CONTROL
-----------------
9A.1 MotherNature shall give Rodale notice of the occurrence of a Change
of Control of MotherNature. Within thirty (30) days after Rodale's receipt of
such notice Rodale may elect to exercise its rights under this Section 9A.1. If
Rodale elects to exercise its rights, then, following, the expiration of thirty
(30) days following the giving of such notice: the license granted to
MotherNature by Section 4.1 of this Agreement to access Rodale's customer
database shall be limited to only customer name, address, and e-mail address
selections for the purpose of promoting visits to the Internet Site.
Specifically, access to the Rodale customer database for ad hoc customer
analysis purposes shall terminate. The successor to, or party acquiring
control, of MotherNature shall, likewise, give to Rodale thirty (30) days notice
of a second or subsequent Change of Control, and Rodale's rights under this
Section 9A.1 shall again be exercisable in respect to such second or subsequent
Change of Control.
9A.2 If during the period of twelve (12) consecutive months following a
Change of Control of MotherNature, the revenue received by Rodale from the sale
of Books (pursuant to Sections 3.4(b) and 3.4(c) of this Agreement) declines by
twenty-five (25%) percent or more from the revenue received by Rodale from the
sale of Rodale Books during the period of twelve (12) consecutive months
preceding the Change of Control of MotherNature, Rodale may give notice thereof
to MotherNature. Upon the expiration of thirty (30) days following the giving
of such notice, all Exclusive rights and licenses granted by Rodale to
MotherNature under this Agreement shall become non-exclusive unless
MotherNature, during such thirty (30) day period, pays to Rodale a sum of money
equal to the difference between the Book sale revenue by Rodale during the
twelve (12) month period after the Change of Control of MotherNature, and
seventy-five (75%) percent of the
32
Book sale revenue received by Rodale during the twelve (12) months preceding the
Change of Control of MotherNature. Rodale's rights under this Section 9A.2 are
exercisable annually, in respect of each anniversary of the Change of Control of
MotherNature during the remainder of the term of this Agreement.
10. TERMINATION
-----------
10.1 This Agreement may be terminated by written notice from the
terminating party to the non-terminating party, notwithstanding any other
provision of this Agreement, upon the occurrence of any of the following events:
(a) By either party, upon the expiration of the term set forth in
Section 2.1 above;
(b) By either party, in the event of default by the other;
(c) By Rodale, in the event that the Internet Site is not available to
consumers for a period of at least seven (7) consecutive days at any time during
the term of this Agreement (after initial launch of the Internet Site), and the
Internet Site has not been restored to functionality substantially equivalent to
its functionality prior to the interruption within a period of an additional
seven (7) consecutive days following notice by Rodale to MotherNature requesting
that the interruption be cured; provided, however, that Rodale shall not have
the right to terminate this Agreement if the interruption of the availability of
the Internet Site to consumers is caused by:
33
(i) An act of God; or
(ii) Acts of third parties beyond MotherNature's control, and
such third party acts are not due to the violation of any law or regulation
by MotherNature;
(d) By Rodale, in the event that MotherNature fails to provide updated
Content to the Internet Site for a period in excess of thirty (30) days at any
time during the term of this Agreement; and such failure to provide updated
Content is not cured within five (5) days of notice from Rodale to MotherNature.
(e) By either party, in the event that bankruptcy, receivership,
liquidation or Chapter 11 proceedings are filed against either party to this
Agreement which is not stayed or discharged within thirty (30) days of
commencement;
(f) By Rodale, in the event that the Internet Site advertises, sells
or promotes the sale of alcohol (excluding beer or wine), tobacco products, or
non-organic fertilizers, and such advertising or promotion is not removed from
the Internet Site within fifteen (15) days notice from Rodale to MotherNature
requesting such removal.
10.2 Effect of Expiration or Termination. Upon the expiration or
-----------------------------------
termination of this Agreement:
(a) Cessation of Activities. Each party shall cease to perform all
-----------------------
services for the other party as described in this Agreement. Each party shall
discontinue any promotional services for or on behalf of the other.
(b) Survival. The rights and obligations of the parties under the
--------
following Sections shall survive any expiration or termination of this
Agreement: Sections 6, 7, 8, 10 and 12.
34
(c) Trademark. MotherNature shall remove the Trademark from its
---------
Internet Site and shall have no further right to use the Trademark pursuant to
the license granted under this Agreement.
(d) MotherNature shall, at Rodale's option: (1) return to Rodale all
of the Content (including Modifications) or (2) destroy all of the Content and
Modifications, which destruction shall be certified by the Affidavit of the
Chief Executive Officer of MotherNature. MotherNature shall make no further
use, display or reproduction of the Content or Modifications; MotherNature shall
make no derivative works of the Content; and all rights with respect to the
Content and Modifications shall revert exclusively to Rodale, in all media.
(e) MotherNature shall promptly execute and deliver to Rodale any
document(s) requested by Rodale to accomplish the objectives of this Section
10.2.
11. NON-COMPETITION
---------------
11.1 During the term of this Agreement, MotherNature agrees that it shall
not directly or indirectly through a subsidiary, affiliate or joint venture:
(a) Publish for distribution and sale to the general public print
Books or print magazines (excluding online materials that may be printed from a
computer) on the subjects of health, vitamins, minerals, dietary supplements,
medicinal herbs, natural healing, alternative medicine (including aromatherapy
and homeopathy), cooking, home health remedies, pets or gardening, except upon
the prior written consent of Rodale.
35
(i) Notwithstanding the foregoing, in the event that during of
this Agreement, MotherNature proposes to publish a magazine on the subjects
health, vitamins, minerals, dietary supplements, medicinal herbs, natural
healing, alternative medicine (including aromatherapy and homeopathy),
cooking, home health remedies, pets or gardening, then the following shall
apply:
(1) MotherNature shall first offer to Rodale the right to
act as publisher of the magazine. For a period of not less than
ninety (90) days, Rodale and MotherNature shall negotiate, in best
faith efforts, to reach agreement as to the publication and
distribution of the proposed magazine by Rodale on MotherNature's
behalf. In the event that MotherNature and Rodale are,
notwithstanding best faith efforts, unable to reach agreement as to
Rodale's publication of such magazine, then MotherNature shall be free
to negotiate with any third party for the publication of that
magazine. In the event that the magazine is published by any party
other than Rodale, then MotherNature agrees and acknowledges that the
Content may not be used in the proposed magazine in any way, it being
the intention of the parties that a magazine published by any party
other than Rodale shall have editorial content which is not the
Content, derivatives of the Content or modifications of the Content in
any respect.
(b) Engage in the business of selling to employer intranets health
information which does not also offer products for sale.
36
11.2 During the term of this Agreement, Rodale agrees that it shall not
directly or indirectly through a subsidiary, affiliate or joint venture:
(a) Engage in the sale to consumers of vitamins, minerals, dietary
supplements, medicinal herbs, minerals, drugstore products (over the counter and
prescription products which are ingested or topically applied), or aromatherapy
or homeopathy products; or
(b) Invest in or acquire any other entity that is a Competitor under
the meaning of Section 1.5 hereof; provided, however, that Rodale shall not be
deemed to be in violation of this Section 11.2 solely by virtue of its
beneficial ownership of less than two and one-half (2.5%) percent of the
outstanding securities of any corporation whose securities are traded on a
national securities exchange.
12. MISCELLANEOUS
-------------
12.1 Service Interruptions. MotherNature and Rodale will endeavor to keep
---------------------
their respective websites and services operational at all time, but certain
technical difficulties may, from time to time, result in temporary service
interruptions. Neither party shall be liable to the other for any consequences
of such service interruptions.
12.2 Assignment. Neither party may assign or transfer any of the rights,
----------
duties or obligations hereunder to any party without the prior written consent
of the other. Subject to Section 9A., MotherNature may, without such consent,
assign its rights, duties or obligation hereunder to an acquirer of MotherNature
in connection with a Change of Control of MotherNature.
37
12.3 Relationship of Parties. Rodale and MotherNature are independent
-----------------------
contractors and nothing in this Agreement is intended or will create any form of
partnership, joint venture, agency, franchise, sales representative or
employment relationship between the parties. Neither party has the authority,
without the other party's prior written approval, to bind or commit the other
party in any way.
12.4 Waiver. No waiver of any provision of the Agreement shall be
------
effective unless made in writing. No waiver of any breach of any provision of
the Agreement shall constitute a waiver of any subsequent breach of the same or
any other provision of the Agreement.
12.5 Governing Law and Dispute Resolution. Any dispute regarding the
------------------------------------
interpretation or validity hereof shall be governed by the laws of the
Commonwealth of Pennsylvania, U.S.A., exclusive of that body of law relating to
choice of law.
12.6 Severability. The provisions of this Agreement are severable. If
------------
any one (1) or more such provisions are judicially determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions or
portions of the Agreement shall be binding on and enforceable by and between the
parties hereto.
12.7 Audit. Each party shall have the right to audit or have its
-----
representatives audit the books and records of the other to assure compliance
with the provisions of this Agreement. In the event of any discrepancy
discovered by such audit, the amount of the discrepancy shall immediately be
paid, and in the event that such discrepancy exceeds five (5%) percent, the
audited party shall pay the reasonable costs of the audit not to exceed Two
Thousand Five Hundred ($2,500.00) Dollars.
38
Audit rights may be exercised at the business location of either party hereto
and shall be exercisable on five (5) days notice during normal business hours.
12.8 Notices. All notices required or permitted under this Agreement will
-------
be in writing, will reference this Agreement and will be deemed given: (a) when
actually delivered; (b) when sent by confirmed facsimile; or (c) the next
business day after deposit with a commercial overnight carrier specifying next-
day delivery, with written verification of receipt. All communications will be
sent to the addresses set forth below or to such other address as may designated
by a party by giving written notice to the other party pursuant to this Section
12.8:
If to Rodale: Chief Financial Officer
------------
Rodale Inc.
00 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxx X. XxXxxxxx, Esquire
--------------
Gross, McGinley, XxXxxxx & Xxxxx, LLP
00 Xxxxx 0xx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to MotherNature: Chief Financial Officer
------------------
XxxxxxXxxxxx.xxx, Inc.
One Concord Farms, Second Floor
000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxxxxx, Esquire
--------------
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
39
12.9 Counterparts. This Agreement may be executed in two (2) or more
------------
counterparts, each of which shall be deemed an original and which together shall
constitute one (1) instrument.
12.10 Licenses. The granting of rights by Rodale to MotherNature under
--------
this Agreement shall be deemed to be the granting of royalty-free, worldwide
licenses in the English or Spanish language, as published by Rodale, for the
applicable terms of such rights.
12.11 Publicity. Neither Rodale nor MotherNature shall, without the
---------
consent and advance approval of the other party, issue any publicity releases,
statements, or announcement concerning this Agreement or the transactions
contemplated hereby; provided that any such release, statement and/or
announcement may be made by either Rodale or MotherNature pursuant to any
governmental or regulatory requirement (but only after a reasonable attempt to
coordinate such release or announcement with the other party).
12.12 Entire Agreement. This Agreement, that certain Stock Purchase
----------------
Agreement entered into between Rodale and MotherNature constitute the entire
agreement between the parties and supersedes all prior agreements and
understandings between them relating to the subject matter hereof. No
modifications of the Agreement shall be binding on either party unless it is in
writing and signed by the party to be charged.
40
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the
day and year first above written, intending to be legally bound hereby.
RODALE INC.
BY: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
XXXXXXXXXXXX.XXX, INC.
BY: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
41
