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EXHIBIT 10.22
***TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4),
200.83 AND 240.24b-2
MARKETING AND PROMOTION AGREEMENT
This Marketing and Promotion Agreement (the "Agreement") is entered into
as of December __, 1999 (the "Effective Date") by and between XX0.xxx, Inc., a
Delaware corporation ("XX0.xxx"), and Xxxxxxxx.xxx, Inc., an Arizona corporation
("xxxxxxxx.xxx"). XX0.xxx and xxxxxxxx.xxx may be referred to individually as a
"Party" and collectively as the "Parties."
WHEREAS, XX0.xxx owns and operates the web site at xxx.xx0.xxx (the
"XX0.xxx Site");
WHEREAS, xxxxxxxx.xxx owns and operates the web site at xxx.xxxxxxxx.xxx
(the "xxxxxxxx.xxx Site"); and
WHEREAS, the Parties desire to promote the marketing, branding and
traffic to the xxxxxxxx.xxx Site (and its related services).
NOW, THEREFORE, in exchange for the consideration set forth herein, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows:
1. DEFINITIONS
1.1 "XX0.XXX CONTENT" shall have the meaning set forth in Section 5.1(b)
herein.
1.2 "XX0.XXX MATERIALS" shall have the meaning set forth in Section 4.2
herein.
1.3 [***]
1.4 "TERM" shall have the meaning set forth in Section 7.1 herein.
1.5 [***]
1.6 "XXXXXXXX.XXX CONTENT" shall have the meaning set forth in Section
5.1(a) herein.
1.7 "XXXXXXXX.XXX IPO" shall mean the first public offering of the
common stock of xxxxxxxx.xxx registered under the Securities Act of 1933, as
amended.
1.8 "XXXXXXXX.XXX MATERIALS" shall have the meaning set forth in Section
4.1 herein.
1.9 "XXXXXXXX.XXX SERVICES" shall mean any "Basic" and "Premium"
services offered to consumers from time to time during the Term of this
Agreement on the xxxxxxxx.xxx Site which shall include, but not be limited to,
multimedia Internet communications, online
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directories, online messengering services, online chat and multi-point
conferencing and connection services.
1.10 [***]
1.11 [***]
2. PAYMENT TERMS
2.1 PAYMENTS FOR YEAR 2000. In consideration of the various promotional
and marketing services to be provided by XX0.xxx to xxxxxxxx.xxx under this
Agreement from the Effective Date through December 31, 2000, xxxxxxxx.xxx shall
pay XX0.xxx a total of [***] in immediately-payable, nonrefundable U.S. funds,
according to the following schedule of payments: (i) [***] as of the Effective
Date; (ii) [***] as of the last day of each month commencing on January 31, 2000
and ending on August 31, 2000; (iii) [***] as of September 30, 2000; (iv) [***]
as October 31, 2000; and (v) [***] as of each of November 30 and December 31,
2000; provided, however, that five (5) days after the effective date of the
xxxxxxxx.xxx IPO, all unpaid amounts under this Section 2.1 shall become
immediately due and payable to XX0.xxx. Xxxxxxxx.xxx and XX0.xxx acknowledge and
agree that such payments shall be deemed compensation for the various
promotional and marketing services to be provided by XX0.xxx to xxxxxxxx.xxx
pursuant to Section 3.1 herein from the Effective Date through December 31,
2000, as well as for any promotional and marketing services provided by XX0.xxx
to xxxxxxxx.xxx under this Agreement that were delivered prior to the Effective
Date. Notwithstanding anything in this Section 2.1 to the contrary, all payments
otherwise due and payable under this Section 2.1 shall be deferred and not
become due and payable until immediately following the closing (the "Equity
Closing") of the equity financing transactions specified in the Series E
Preferred Stock Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), between the Parties; provided, however, that in the event this
Agreement is terminated in accordance with Section 7.3(b), the approximately
[***] payable for services performed by XX0.xxx during the fourth quarter of
1999 shall immediately become due and payable.
2.2 PAYMENTS FOR YEAR 2001. In consideration of the various promotional
and marketing services to be provided by XX0.xxx to xxxxxxxx.xxx under this
Agreement from January 1, 2001 through December 31, 2001, xxxxxxxx.xxx shall pay
XX0.xxx a total of [***] in immediately-payable, nonrefundable U.S. funds, in
four equal payments of [***] as of each of the following dates: (i) March 31,
2001; (ii) June 30, 2001; (iii) September 30, 2001; and (iv) December 31, 2001.
Xxxxxxxx.xxx and XX0.xxx acknowledge and agree that such payments shall be
deemed
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compensation for the various promotional and marketing services to be provided
by XX0.xxx to xxxxxxxx.xxx pursuant to Section 3.1 herein from January 1, 2001
through December 31, 2001.
2.3 PAYMENTS FOR YEAR 2002. In consideration of the various promotional
and marketing services to be provided by XX0.xxx to xxxxxxxx.xxx under this
Agreement from January 1, 2002 through December 31, 2002, xxxxxxxx.xxx shall pay
XX0.xxx a total of [***] in immediately-payable, nonrefundable U.S. funds, in
four equal payments of [***] as of each of the following dates: (i) March 31,
2002; (ii) June 30, 2002; (iii) September 30, 2002; and (iv) December 31, 2002.
Xxxxxxxx.xxx and XX0.xxx acknowledge and agree that such payments shall be
deemed compensation for the various promotional and marketing services to be
provided by XX0.xxx to xxxxxxxx.xxx pursuant to Section 3.1 herein from January
1, 2002 through December 31, 2002.
2.4 YEAR 2000 BOUNTY PAYMENT.
(a) In addition to the amounts payable pursuant to Section 2.1
above, xxxxxxxx.xxx agrees to pay XX0.xxx [***], up to a maximum payment of
[***] in the aggregate (the "Year 2000 Bounty Payment"), for each Registered
User acquired by xxxxxxxx.xxx in excess of [***] Registered Users during the
period commencing on the Effective Date and ending on the earlier of (i)
termination of this Agreement (except for a termination pursuant to Section
7.3(b)), (ii) December 31, 2000 or (iii) two (2) business days prior to the
filing of a registration statement on Form S-1 (or any successor form thereto)
by xxxxxxxx.xxx which results in the closing of the xxxxxxxx.xxx IPO prior to
the occurrence of either clause (i) or (ii) above (which date shall be referred
to as the "Year 2000 Bounty End Date"); provided, however, if the Year 0000
Xxxxxx Xxx Date is caused by clause (iii), then, [***]. Such Year 2000 Bounty
Payment will be payable in shares of xxxxxxxx.xxx stock (as provided below),
unless, if the Year 0000 Xxxxxx Xxx Date is caused by clause (iii) of the prior
sentence, in connection therewith XX0.xxx notifies xxxxxxxx.xxx that it would
like a portion of the Year 2000 Bounty Payment (up to a maximum of one-third
(1/3) of such payment) in cash.
(b) If the Year 2000 Bounty Payment is being made in connection
with Section 2.4(a)(iii) herein, xxxxxxxx.xxx shall, upon the effective date of
the xxxxxxxx.xxx IPO, issue to XX0.xxx in a private placement (the "Private
Placement") that number of shares of xxxxxxxx.xxx common stock (the "Shares")
equal to the aggregate Year 2000 Bounty Payment divided by the price per share
at which the xxxxxxxx.xxx common stock is offered to the public in the
xxxxxxxx.xxx IPO.
(c) If the Year 2000 Bounty Payment is not being made in
connection with Section 2.4(a)(iii) herein, xxxxxxxx.xxx shall, as soon as
commercially reasonable following the Year 0000 Xxxxxx Xxx Date, issue a number
of shares of preferred stock (the "Preferred Shares")
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of xxxxxxxx.xxx equal to the Year 2000 Bounty Payment divided by the Share
Price. For purposes of this Agreement, the "Share Price" shall equal [***].
(d) XX0.xxx represents and warrants to xxxxxxxx.xxx that:
(i) The Shares or the Preferred Shares, as applicable, to
be issued to it pursuant to this Agreement are being acquired solely for its own
account, for investment purposes only, and with no present intention of
distributing, selling or otherwise disposing of them;
(ii) XX0.xxx is able to bear the economic risk of an
investment in the Shares or the Preferred Shares, as applicable, acquired by it
pursuant to this Agreement and can afford to sustain a total loss on such
investment, and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of this Agreement,
including the Bounty Payment and therefore has the capacity to protect its own
interests in connection with the Shares or the Preferred Shares, as applicable;
(iii) XX0.xxx understands that there is no public market
for the Shares or the Preferred Shares, as applicable, and that there may never
be a public market for such stock, and that even if a market develops for such
stock it may never be able to sell or dispose of the Shares or the Preferred
Shares, as applicable, and may thus have to bear the risk of its investment in
such stock for a substantial period of time, or forever;
(iv) XX0.xxx is an "accredited investor" within the
meaning of Regulation D under the Securities Act of 1933, as amended. In
addition, XX0.xxx has received such information as it considers necessary or
appropriate for deciding whether to agree to acquire the Shares or the Preferred
Shares, as applicable; and
(v) No finder, broker, agent, financial advisor, or other
intermediary has acted on behalf of XX0.xxx in connection with the transactions
contemplated by this Agreement.
(e) XX0.xxx acknowledges and agrees that (i) there can be no
assurance that xxxxxxxx.xxx will be able to successfully complete an IPO in the
near future or at any time and (ii) whether or not xxxxxxxx.xxx is able to
successfully complete an IPO, all other rights and obligations contained within
this Agreement will remain in full force and effect. XX0.xxx acknowledges and
agrees that all Shares or Preferred Shares issued to it under this Agreement
shall be subject to any ordinary and customary lock-up agreement required by an
underwriter as a condition to a xxxxxxxx.xxx IPO provided that (a) such
agreement shall apply only to the xxxxxxxx.xxx IPO; and (b) all executive
officers and directors of xxxxxxxx.xxx enter into substantially similar
agreements. Both Parties acknowledge and agree to cooperate, file and
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receive all necessary governmental approvals, consents, waivers and expirations
or terminations of applicable waiting periods required in connection with the
issuance of Shares or Preferred Shares before the issuance of such Shares or
Preferred Shares, including requirements under the Xxxx-Xxxxx-Xxxxxx Anti-Trust
Improvements Act of 1976, as amended; provided that both Parties shall (i)
equally share the costs of any joint or third-party filing fees related thereto;
and (ii) each bear responsibility for its own legal, accounting and other
expenses related to any such filings or consents.
(f) Both Parties acknowledge and agree that any such Year 2000
Bounty Payment shall act as full compensation for all Registered Users that
XX0.xxx provides to xxxxxxxx.xxx during the period from the Effective Date
through December 31, 2000 under this Agreement.
2.5 ADDITIONAL BOUNTY PAYMENTS.
(a) In addition to the amounts payable pursuant to Section 2.2
above, xxxxxxxx.xxx agrees to pay XX0.xxx, in a lump sum cash payment within
thirty (30) days of December 31, 2001 (up to a maximum payment of [***] in
the aggregate), an amount equal to the User Acquisition Amount determined for
the year 2001 for each Registered User acquired by xxxxxxxx.xxx in excess of the
Year 2001 Bounty Threshold during the period commencing on January 1, 2001 and
ending on the earlier of (i) termination of this Agreement, or (ii) December 31,
2001.
(b) In addition to the amounts payable pursuant to Section 2.3
above, xxxxxxxx.xxx agrees to pay XX0.xxx, in a lump sum cash payment within
thirty (30) days of December 31, 2002 (up to a maximum payment of [***] in
the aggregate), an amount equal to the User Acquisition Amount determined for
the year 2002 for each Registered User acquired by xxxxxxxx.xxx in excess of the
Year 2002 Bounty Threshold during the period commencing on January 1, 2002 and
ending on the earlier of (i) termination of this Agreement, or (ii) December 31,
2002.
(c) Both Parties acknowledge and agree that any additional bounty
payments paid under Sections 2.5(a) and (b) shall act as full compensation for
all Registered Users that XX0.xxx provides to xxxxxxxx.xxx during the years 2001
and 2002, respectively.
2.6 LATE PAYMENTS. Any late payments under this Agreement will be
assessed a service fee of one and one-half percent (1.5%) per month, to the
extent allowed by law. All fees owed by xxxxxxxx.xxx to XX0.xxx are exclusive of
, and xxxxxxxx.xxx shall pay, all sales, use, excise and other taxes which may
be levied upon either party in connection with such payments, except for taxes
based on XX0.xxx's net income.
3. OBLIGATIONS OF THE PARTIES
3.1 PROMOTION OF XXXXXXXX.XXX SERVICES. For the Term of this Agreement,
XX0.xxx will actively promote the xxxxxxxx.xxx Services on the XX0.xxx Site by
using commercially reasonable efforts to implement the features, services and/or
promotional methods and initiatives
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as described in Exhibit A attached hereto (the "Marketing Plans"). XX0.xxx and
xxxxxxxx.xxx may meet at any time to revise and amend the Marketing Plans and
shall not, at any time, be limited to implementing only the items described in
Exhibit A hereto (subject to the mutual agreement of the Parties).
Notwithstanding the foregoing, the type, quantity, frequency and placement of
any of the specific promotional methods and initiatives set forth in the
Marketing Plans shall be determined by the reasonable mutual agreement of
XX0.xxx and xxxxxxxx.xxx.
3.2 DIRECTORY SERVICES. During the Term of this Agreement, xxxxxxxx.xxx
shall make available to all Registered Users access to its permanent global
directory. Additionally, by January 15, 2000 xxxxxxxx.xxx will create an XX0.xxx
community as a subset of the permanent global directory on the xxxxxxxx.xxx Site
and shall host such community for the remainder of the Term. The community
directory will enable Registered Users to locate other Registered Users to
facilitate the communication services enabled by xxxxxxxx.xxx. Except as set
forth in Section 3.3, Registered Users of the community directory will have
access to Xxxxxxxx.xxx Services at the then prevailing rates established by
xxxxxxxx.xxx.
3.3 INTEGRATION OF XXXXXXXX.XXX SERVICES. During the Term of this
Agreement, xxxxxxxx.xxx shall provide technical and other assistance to XX0.xxx
to integrate links throughout the XX0.xxx Site to co-branded web pages hosted on
xxxxxxxx.xxx servers that will allow users of the XX0.xxx Site to register for
and, once registered, to use the xxxxxxxx.xxx Services. For the Term of this
Agreement, XX0.xxx shall be entitled to establish, implement and maintain such
links and any and all xxxxxxxx.xxx Services on the XX0.xxx Site and to register
users of the XX0.xxx Site for any and all xxxxxxxx.xxx Services. Xxxxxxxx.xxx
shall use its best efforts to facilitate the availability of links to the
xxxxxxxx.xxx Services from the XX0.xxx Site for the benefit of XX0.xxx's users
and artists.
3.4 REPORTS; AUDITS. During the Term of this Agreement, xxxxxxxx.xxx
agrees to establish and maintain a tracking system whereby xxxxxxxx.xxx can
accurately document the number, manner of registration and key demographic
information of the Registered Users xxxxxxxx.xxx acquires pursuant to this
Agreement. Xxxxxxxx.xxx will promptly provide XX0.xxx with monthly reports that
summarize and detail such information in a format that meets both Party's
reasonable mutual satisfaction. XX0.xxx shall have the right to cause an
independent, certified public accountant reasonably acceptable to xxxxxxxx.xxx
to audit such tracking system and records to determine the accuracy of the
information contained in the monthly reports. Such audits may be exercised
during normal business hours upon at least ten (10) working days' prior written
notice to xxxxxxxx.xxx. XX0.xxx shall bear the full cost of any such audits;
provided, however, that if the total number of Registered Users calculated for
purposes of determining any Bounty Payment, as determined by the results of such
audit, varies by more than ten percent (10%) in the aggregate, then xxxxxxxx.xxx
shall bear the costs of any such audit.
4. LICENSES
4.1 XXXXXXXX.XXX LICENSE. For the Term of this Agreement, xxxxxxxx.xxx
hereby grants to XX0.xxx a non-exclusive, royalty-free, worldwide license to
use, reproduce and distribute any advertising and promotional materials
including all artwork, trademarks, logos, designs, ads and the like provided by
xxxxxxxx.xxx to XX0.xxx in connection with the terms of
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Sections 3.1 through 3.4 herein (the "xxxxxxxx.xxx Materials"). Title to and
ownership of all intellectual property rights of the xxxxxxxx.xxx Materials
shall remain with xxxxxxxx.xxx or its third party licensors.
4.2 XX0.XXX LICENSE. For the Term of this Agreement, XX0.xxx hereby
grants to xxxxxxxx.xxx a non-exclusive, royalty-free, worldwide license to use,
reproduce and distribute any XX0.xxx trademarks, logos, designs, ads and the
like provided by XX0.xxx to xxxxxxxx.xxx in connection with the terms of
Sections 3.1 and 3.2 herein (the "XX0.xxx Materials"). Title to and ownership of
all intellectual property rights of the XX0.xxx Materials shall remain with
XX0.xxx or its third party licensors.
5. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
5.1 REPRESENTATIONS AND WARRANTIES.
(a) XXXXXXXX.XXX. Xxxxxxxx.xxx shall be solely responsible for
any legal liability arising out of or relating to the content on the
xxxxxxxx.xxx Site, the xxxxxxxx.xxx Materials and any advertisements or other
materials provided for or by xxxxxxxx.xxx under this Agreement (collectively,
the "xxxxxxxx.xxx Content"). Xxxxxxxx.xxx represents and warrants that the
xxxxxxxx.xxx Content does not and will not, and XX0.xxx's use of the
xxxxxxxx.xxx Content will not: (a) infringe on any third party's copyright,
patent, trademark, trade secret or other proprietary rights or right of
publicity or privacy; (b) violate any law, statute, ordinance or regulation,
including without limitation the laws and regulations governing export control,
unfair competition, antidiscrimination or false advertising; (c) be defamatory
or trade libelous; (d) be defamatory, harmful to minors, obscene or child
pornographic; (e) be materially false, misleading or inaccurate or cannot be
promptly fulfilled; or (f) contain viruses, trojan horses, worms, time bombs,
cancelbots or other similar harmful or deleterious programming routines.
XXXXXXXX.XXX MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND,
EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE XXXXXXXX.XXX SITE, THE XX0.XXX
CONTENT OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR
COURSE OF PERFORMANCE. Xxxxxxxx.xxx does not guarantee continuous or
uninterrupted display or distribution of any XX0.xxx Content.
(b) XX0.XXX. XX0.xxx shall be solely responsible for any legal
liability arising out of or relating to the XX0.xxx Materials and the content on
the XX0.xxx Site for which it is the sole and exclusive owner (collectively, the
"XX0.xxx Content"). XX0.xxx represents and warrants that the XX0.xxx Content
does not and will not, and xxxxxxxx.xxx's authorized use of the XX0.xxx Content
will not: (a) infringe on any third party's copyright, patent, trademark, trade
secret or other proprietary rights or right of publicity or privacy; (b) violate
any law, statute, ordinance or regulation, including without limitation the laws
and regulations governing export control, unfair competition, antidiscrimination
or false advertising; (c) be defamatory or trade libelous; (d) be defamatory,
harmful to minors, obscene or child pornographic; (e) be materially false,
misleading or inaccurate or cannot be promptly fulfilled; or
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(f) contain viruses, trojan horses, worms, time bombs, cancelbots or other
similar harmful or deleterious programming routines. XX0.XXX MAKES NO
REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED
WITH RESPECT TO THE XX0.XXX SITE, THE XXXXXXXX.XXX CONTENT OR THE FUNCTIONALITY,
PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER
WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF
PERFORMANCE. XX0.xxx does not guarantee continuous or uninterrupted display or
distribution of any xxxxxxxx.xxx Content.
5.2 INDEMNIFICATION.
(a) XXXXXXXX.XXX. Xxxxxxxx.xxx agrees to defend, indemnify and
hold harmless XX0.xxx and its directors, officers, agents and employees for any
and all losses, costs, liabilities or expenses (including without limitation
reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a)
any breach of the representations or warranties made by xxxxxxxx.xxx in Section
5.1(a) above; (b) any claim arising from the sale of license of xxxxxxxx.xxx's
goods or services; or (c) any other act, omission or representation by
xxxxxxxx.xxx. XX0.xxx may participate in the defense at its option and expense.
(b) XX0.XXX. XX0.xxx agrees to defend, indemnify and hold
harmless xxxxxxxx.xxx and its directors, officers, agents and employees for any
and all losses, costs, liabilities or expenses (including without limitation
reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a)
any breach of the representations or warranties made by XX0.xxx in Section
5.1(b) above; (b) any claim arising from the sale of license of XX0.xxx's goods
or services; or (c) any other act, omission or representation by XX0.xxx.
Xxxxxxxx.xxx may participate in the defense at its option and expense.
6. CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. Xxxxxxxx.xxx and XX0.xxx agree and
acknowledge that they may be required to disclose to each other certain
confidential information, including, but not limited to, information concerning
the other party's online services and web sites, technology, software, tools,
business, or plans for the future in connection with any of the foregoing,
information concerning customers, suppliers, personnel and other business
relationships, sales and marketing plans, financial information and other
confidential information, all of which shall be deemed "Confidential
Information" for the purposes of this Section 6.
6.2 NO DISCLOSURE. For a period of three (3) years from the date of
receipt of any Confidential Information hereunder the receiving party agrees to
protect the confidentiality of the disclosing party's Confidential Information
with at least the same degree of care that it utilizes with respect to its own
similar proprietary information, but in no event less than a reasonable standard
of care, including without limitation agreeing:
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(a) Not to disclose or otherwise permit any other person or
entity access to, in any manner, the Confidential Information, or any part
thereof in any form whatsoever, except that such disclosure or access shall be
permitted to (i) an employee or consultant of the receiving party requiring
access to the Confidential Information in the course of his or her employment or
consulting services in connection with this Agreement and who has agreed in
writing to maintain the confidentiality of the confidential information of third
parties in the receiving party's possession; or (ii) a director, legal advisor,
or financial advisor of the recipient party hereunder, provided that such
parties are bound to maintain the confidentiality of such information and
provided further that they are permitted to use such Confidential Information
only for the purposes of carrying out their fiduciary or other advisory
responsibilities on behalf of the party hereto from which it received such
Confidential Information; and
(b) Not to use the Confidential Information for any purpose other
than to carry out the purposes of this Agreement.
6.3 EXCEPTIONS. Nothing in this Section 6 shall restrict the receiving
party with respect to information or data, whether or not identical or similar
to that contained in the Confidential Information, if such information or data:
(i) was rightfully possessed by the receiving party before it was received from
the disclosing party; (ii) is independently developed by the receiving party
without reference to the disclosing party's information or data; (iii) is
subsequently furnished to the receiving party by a third party not under any
obligation of confidentiality with respect to such information nor data, and
without restrictions on use or disclosure; or (iv) is or becomes public or
available to the general public otherwise than through any act or default of the
receiving party.
6.4 PUBLICITY; SEC FILINGS. Xxxxxxxx.xxx and XX0.xxx agree that neither
shall issue a press release or public announcement pertaining to the
transactions contemplated by this Agreement at any time, unless the other party
expressly agrees otherwise and agrees to the form and substance of such press
release or announcement, which agreement shall not be unreasonably withheld.
Unless expressly otherwise agreed to by the other party, neither XX0.xxx nor
xxxxxxxx.xxx will disclose the transactions contemplated by this Agreement and
will maintain the confidentiality of these transactions, except (x) to the
extent required by law, (y) in connection with any bona fide due diligence
investigation conducted by a potential investor, acquiror, commercial lender,
investment bank or the like where such party executes such party's customary
nondisclosure agreement or (z) to the extent that such party, after consultation
with its outside legal counsel, determines that such disclosure is required to
be made in any filing made pursuant to the Securities Act of 1933 or the
Securities Exchange Act of 1934, as applicable.
7. TERM AND TERMINATION; SURVIVAL
7.1 TERM. Unless terminated earlier in accordance with this Section 7,
this Agreement shall commence on the Effective Date and shall remain in full
force and effect until December __, 2002 (the "Term").
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7.2 TERMINATION. Either party may terminate this Agreement:
(a) Immediately upon written notice if the other party breaches a
material term or condition of the Agreement and does not cure such breach (or
commence a cure in a manner satisfactory to the non-breaching party) within
thirty (30) days (five (5) days in connection with late payment) after written
notice of such breach; or
(b) Immediately upon written notice if the other ceases to do
business, or otherwise terminates its business operations, except as a result of
a permitted assignment; or
(c) Immediately and without notice if the other becomes insolvent
or seeks protection under any bankruptcy, receivership, trust deed, creditors
arrangement, composition or comparable proceeding, or if any such proceeding is
instituted against the other.
7.3 TERMINATION BY XXXXXXXX.XXX.
(a) Xxxxxxxx.xxx shall have a one-time right to terminate all of
Sections 2.2, 2.3, 2.5 and 3.1 of this Agreement, effective as of January 1,
2001, upon forty-five (45) days prior written notice thereof to XX0.xxx;
provided, however, that notwithstanding any such termination xxxxxxxx.xxx agrees
to continue to maintain existing links from and any and all xxxxxxxx.xxx
Services on the XX0.xxx Site and to register users of the XX0.xxx Site for any
and all xxxxxxxx.xxx Services for the remainder of the Term. Xxxxxxxx.xxx and
XX0.xxx acknowledge and agree that xxxxxxxx.xxx's right to terminate Sections
2.2, 2.3, 2.5 and 3.1 (to the extent provided above) of this Agreement as set
forth above may only be exercised in its entirety (i.e., all of such sections
must be terminated if any one of them is terminated).
(b) Xxxxxxxx.xxx shall have a one-time right to terminate this
Agreement if the Equity Closing has not occurred prior to February 1, 2000 by
providing XX0.xxx with written notice thereof no later than February 15, 2000.
7.4 SURVIVAL. Notwithstanding anything in this Agreement of the
contrary, any accrued payment obligations (including xxxxxxxx.xxx's obligation
to pay approximately [***] for services performed by XX0.xxx during the
fourth quarter of 1999), any right of action for breach of this Agreement prior
to termination and all the rights and obligations set forth in Sections 5, 7 and
8 herein shall survive termination of this Agreement.
8. GENERAL
8.1 ENTIRE AGREEMENT. This Agreement, together with any agreement
incorporated herein by reference, and any Exhibits hereto or thereto, represents
the entire agreement and understanding between the Parties hereto with respect
to the subject matter hereof and thereof and supersedes all prior agreements and
communications relating to such subject matter, oral or written. No Party shall
be liable or bound to any other party in any manner by any representations,
warranties or covenants relating to such subject matter except as specifically
set forth herein. Notwithstanding the foregoing, the Parties hereby acknowledge
and agree that they have entered into that certain Directory & Premium Services
Agreement of even date herewith
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whereby the rights and obligations of the Parties with respect to the subject
matter therein shall be governed thereby.
8.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns. No Party may assign its respective rights and obligations, in
whole or in part, under this Agreement without prior written consent of the
other Party hereto. Such consent shall not be unreasonably withheld. Any attempt
to assign this Agreement without such consent shall be void and of no effect.
8.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California applicable to
agreements made and to be performed entirely within such state, without regard
to the conflicts of law principles of such state.
8.4 MEDIATION AND ARBITRATION. XX0.xxx and xxxxxxxx.xxx agree to submit
any dispute or controversy arising out of or relating to this Agreement,
including without limitation the interpretation, performance, breach,
termination or validity thereof, to mediation before a single mediator to be
selected by the Parties or, if they cannot agree on a mediator within seven days
of a request for mediation under this paragraph, before a single mediator to be
selected in accordance with rules and procedures of the American Arbitration
Association. The mediation shall take place in San Diego, California at a
location and time to be agreed upon by the Parties and the mediator or, in the
absence of agreement, by the mediator. Each Party shall share equally in the
compensation and costs of the mediator. In the event the dispute is not resolved
by mediation within thirty (30) days of the request for mediation, the dispute
shall be resolved by arbitration administered by the American Arbitration
Association in accordance with its Commercial Rules then in effect, and judgment
on the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitration shall take place in San Diego, California
at a location and time to be agreed upon by the parties or, in the absence of
agreement, by the arbitrator. The expense of the arbitration, including the
compensation of the arbitrator, shall be borne in accordance with the award of
the arbitrator. Any award rendered pursuant to the arbitration terms of this
provision shall be final and binding upon the parties to such arbitration, and
may be confirmed and entered in any court of proper jurisdiction.
8.5 JURISDICTION. Subject to the terms of Section 8.4 (Mediation and
Arbitration) of this Agreement, each Party hereto irrevocably submits to the
exclusive jurisdiction of (a) the Superior Court of the State of California in
San Diego, California; and (b) the United States District Court for the Southern
District of California, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby or thereby.
Each Party hereto irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in (i) the Superior Court of the State
of California, city and county of San Diego; or (ii) the United States District
Court for the Southern District of California, and hereby and thereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in any inconvenient forum.
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8.6 NOTICES. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered by hand or
sent, postage prepaid, by registered, certified or express mail or reputable
overnight courier service and shall be deemed given when so delivered by hand,
or if mailed, three days after mailing (one business day in the case of express
mail or overnight courier service), as follows:
(a) if to Xxxxxxxx.xxx, Inc.:
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0X
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: President
(b) if to XX0.xxx, Inc.
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attn: Vice President, Legal Affairs
8.7 SEVERABILITY. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any person or circumstance shall be held invalid, illegal or unenforceable in
any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof (or the remaining
portion thereof) or the application of such provision to any other persons or
circumstances, and such provision will be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full force and
effect.
8.8 AMENDMENT AND WAIVER. This Agreement may not be amended except by an
instrument in writing signed on behalf of each Party hereto. By an instrument in
writing, xxxxxxxx.xxx or XX0.xxx, as the case may be, may waive compliance by
the other party with any term or provision of this Agreement that xxxxxxxx.xxx
or XX0.xxx, as the case may be, was or is obligated to comply with or perform.
The waiver by any Party of a breach or default of any provision of this
Agreement by any other Party shall not be construed as a waiver of any
succeeding breach of the same or any other provision, nor shall any delay or
omission on the part of any party to exercise or avail itself of any right,
power or privilege that it has, or may have hereunder, operate as a waiver of
any right, power or privilege by such Party.
8.9 INDEPENDENT CONTRACTORS. The Parties to this Agreement are
independent contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency between the Parties. No Party shall have the
power to bind any other Party or incur obligations on any other Party's behalf
without such other Party's prior written consent.
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8.10 THIRD PARTIES. This Agreement is for the sole benefit of the
Parties hereto and their permitted assigns and nothing herein expressed or
implied shall give or be construed to give to any person, other than the Parties
hereto and their assigns, any legal or equitable rights hereunder.
8.11 FORCE MAJEURE. No Party shall be liable for failure to perform or
delay in performing any obligation (other than the payment of money) under this
Agreement if such failure or delay is due to fire, flood, earthquake, strike,
war (declared or undeclared), embargo, blockade, legal prohibition, governmental
action, riot, insurrection, damage, destruction or any other similar cause
beyond the control of such Party.
8.12 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each party and delivered to each other Party. This Agreement may
be executed and delivered by facsimile and the Parties agree that such facsimile
execution and delivery shall have the same force and effect as delivery of an
original document with original signatures, and that each Party may use such
facsimile signatures as evidence of the execution and delivery of this Agreement
by all Parties to the same extent that an original signature could be used.
8.13 HEADINGS; EXHIBITS. The headings contained in this Agreement
hereto, if any, are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Any capitalized terms used in
any Exhibit but not otherwise defined therein, shall have the meaning as defined
in this Agreement. When a reference is made in this Agreement to a Section or
Exhibit, such reference shall be to a Section of, or an Exhibit to, this
Agreement unless otherwise indicated.
8.14 NO CONSEQUENTIAL OR SPECIAL DAMAGES. NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM
NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE,
LOST BUSINESS, LOST DATA OR LOST PROFITS, INCOME OR GOODWILL, THE REJECTION OR
REMOVAL OF ANY XXXXXXXX.XXX CONTENT, OR ANY DELAY IN DISPLAYING OR THE FAILURE
TO DISPLAY THE XXXXXXXX.XXX CONTENT ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT.
8.15 LIABILITY. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT,
EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY AND/OR ANY THIRD PARTY UNDER
ANY CLAIMS RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED AN
AMOUNT GREATER THAN THE CASH AMOUNTS RECEIVED BY XX0.XXX UNDER THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
XXXXXXXX.XXX, INC.
By:
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Name: XXXXXXX X'XXXXXXX
-----------------------
Title: President
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XX0.XXX, INC.
By:
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Name: XXXXXXX XXXXXXXXX
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Title: CEO
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EXHIBIT A
MARKETING PLANS
[***]
*** CONFIDENTIAL TREATMENT REQUESTED
