EXHIBIT 11
PRODUCT MANAGEMENT AGREEMENT
THIS PRODUCT MANAGEMENT AGREEMENT (this "Agreement") is entered into as of
June 18, 1998 by and between Disney Enterprises, Inc., a Delaware corporation,
("Disney") and Infoseek Corporation, a California corporation ("Infoseek");
provided that, this Agreement shall only become effective upon the Effective
Time, as defined in and pursuant to that certain Agreement and Plan of
Reorganization (the "Merger Agreement"), of even date herewith, by and among
Infoseek Corporation, a Delaware corporation, Starwave Corporation, a Washington
corporation, and Disney and shall cease and be of no further force and effect in
the event that the Effective Time does not occur; and provided further that,
each of the parties hereto agrees not to terminate, amend or otherwise alter
this Agreement, or waive any of its rights hereunder, at any time prior to
immediately following the Effective Time.
RECITALS
1. Pursuant to the Merger Agreement and a stock and warrant purchase
agreement, each dated as of the date hereof (collectively, the "Acquisition
Agreements"), Disney has agreed to acquire approximately a 43% interest in the
voting equity of Infoseek, subject to the terms and conditions set forth in the
Acquisition Agreements.
2. Pursuant to a license agreement, dated as of the date hereof (the "License
Agreement"), Disney has agreed to license to Infoseek the Licensor Properties
for the development, operation, production, distribution, sale, license and
other exploitation of the Portal Products.
3. In connection with the execution of the Acquisition Agreements and the
License Agreement, Disney and Infoseek have agreed to enter into agreements,
effective as of the Effective Time, with respect to, among other matters, (a)
the management and governance of the Portal Products, and (b) the establishment
of content and advertising standards and practices for the Portal Products, as
well as other services and products of Disney and Infoseek.
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, Disney and Infoseek hereby agree as follows:
1. ADVISORY COMMITTEE.
The parties agree that this Agreement, and the rights and obligations of
the parties hereunder shall become effective on the Effective Time.
Capitalized terms not defined herein shall have the meanings set forth in
the License Agreement.
(a) GENERAL. As of the Effective Time, Infoseek and Disney will
respectively appoint the Infoseek CEO and the Chairman of Buena Vista
Internet Group as the sole members (the "Infoseek Member" and the
"Disney Member" respectively) of an advisory committee (the "Advisory
Committee"). Each of Infoseek and Disney will have the right to
replace its designee on the Advisory
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Committee; provided, that Infoseek and Disney agree to consult with
each other prior to any such replacement. Any such replacement will be
with an officer of Infoseek or Disney, or their respective Affiliates,
of similar responsibilities and experience, to the extent possible.
The Advisory Committee will meet at least every two months. For
purposes of this Agreement, "Affiliate" shall mean, with respect to
any person, any person directly or indirectly through one or more
intermediaries controlling, controlled by or under common control with
such person. Notwithstanding the foregoing, for purposes of this
Agreement, Infoseek shall not be considered as an Affiliate of Disney
and Disney shall not be considered as an Affiliate of Infoseek. Except
as expressly provided in Section 1(b)(iii) below, decisions of the
Advisory Committee shall be made by unanimous agreement of the Disney
Member and the Infoseek Member.
(b) RESPONSIBILITIES. The Advisory Committee will have the following
responsibilities:
(i) PORTAL PRODUCTS. The Advisory Committee will have overall
management responsibility for the Portal Products, will make all
significant business decisions relating to the Portal Products
and will participate regularly in the overall supervision,
direction and control of the Portal Products. Notwithstanding the
foregoing, it is understood and agreed that decisions with
respect to Infoseek-branded only search and directory services
shall not be required to be discussed by the Advisory Committee
and Infoseek shall control all decision making relating to such
search and directory services; provided, that Infoseek agrees
that the policy of standards and practices for the Infoseek
services (attached as Exhibit B-3) shall be subject to the terms
of Section 3.
(ii) OVERALL RELATIONSHIP. The Advisory Committee will be responsible
for coordinating the overall day-to-day relationship between
Disney and Infoseek with respect to all agreements and
arrangements between the companies, other than as related to the
Infoseek Stock and the Warrants (as defined in the Acquisition
Agreements). For example, the Advisory Committee would discuss
hosting, technology, marketing, and ad sales relationships
between (x) Disney and its Affiliates and (y) Infoseek and its
Affiliates that may occur between the parties that are not
related to the Portal Products, the partnership between an
Affiliate of Starwave Corporation ("Starwave") and a Disney
Affiliate (the "ABC News Venture") or the partnership between a
Starwave Affiliate and a Disney Affiliate (the "ESPN Venture").
Notwithstanding the foregoing, matters that are not related to
online services or sites owned or controlled by Disney and its
Affiliates will not be required to be discussed by the Advisory
Committee.
(iii) TIE-BREAKING VOTES. While the parties agree that the Advisory
Committee will meet and discuss all issues concerning the matters
over
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which they are responsible in good faith, in the following
situations, subject to Sections 2(c) and (d), a tie-breaking vote
(i.e., providing either the Disney Member or the Infoseek Member
with final decision making authority) will be provided as
follows: (A) the tie-breaking vote will reside with the Disney
Member with respect to the Portal Products, in all matters
concerning brand, name, logo and URL-branding issues as used in
Portal Products as well as the approval of each Annual Marketing
Plan (as defined in Section 2(c)), but in all events excluding
matters set forth in the Promotional Services Agreement, dated as
of the date hereof, between American Broadcasting Companies, Inc.
and Infoseek and further excluding matters concerning budgets,
spending requirements, revenue and operating income targets or
similar matters; provided, that the use of the tie breaking vote
by the Disney Member must be exercised in a manner that the
Disney Member intends in good faith is in the best interests of
the Portal Products, (B) the tie-breaking vote will reside with
the Disney Member with respect to the content and advertising
guidelines, as referenced in Section 3, in all matters relating
to any changes, modifications, interpretations or waivers of such
guidelines, (C) the tie-breaking vote will reside with the
Infoseek Member with respect to all matters concerning product
development, production, operation, distribution, advertising
sales, the execution of the Annual Marketing Plan or otherwise
relating to the day-to-day operations of the Portal Products
(except as expressly specified in clauses (A) and (B) above. The
parties, the Infoseek Member and the Disney Member (and the
Advisory Committee) agree to comply with the provisions of
Section 3 in taking any action with respect to the Portal
Products.
(c) TRAFFIC. Every six months, the Advisory Committee will check the
traffic flow between the individual services of Disney and its
Affiliates (including XXXX.xxx and ABC Xxxx.xxx) (collectively, the
"Disney Sites") and the Portal Products (including referrals to and
from Infoseek's search and directory product). If there is an overall
imbalance in traffic between any such individual Internet site or
service and the Portal Products, or if there is an overall imbalance
in traffic between the Disney Sites (in the aggregate) and the Portal
Products, the members of the Advisory Committee agree to work in good
faith to balance traffic by modifying such individual service or as
otherwise agreed, including without limitation, bridge pages and
adjustment of links.
(d) OTHER AGREEMENTS. Disney agrees, to and to cause its Affiliates to,
use good faith efforts to use Starwave Corporation or Infoseek for
hosting all of Disney and its Affiliates' online services at market
rates. Disney and Infoseek agree, and agree to cause their respective
Affiliates to, use good faith efforts to standardize navigation,
technology, advertising sales, user registration and privacy standards
across all Disney-owned, Disney Affiliate-owned, and Infoseek-owned
online services and products.
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2. PORTAL PRODUCTS.
(a) APPOINTMENT OF GENERAL MANAGER. The day-to-day operations of the
Portal Products will be managed by a general manager (the "General
Manager"). Infoseek will be entitled to nominate the General Manager.
Any nomination must be approved by a unanimous vote of the Advisory
Committee; provided, that if three successive nominees are not
approved, the Infoseek Member shall have the sole right of approval
for the subsequent nominee. At least one of the nominees will not be a
current or former Infoseek employee at the time of nomination. This
process will be repeated in the event of any replacement of a General
Manager. Infoseek agrees to use its good faith efforts to nominate
well qualified, "best available" candidates as General Manager
candidates. The General Manager will report to the Advisory Committee.
Either the Disney Member or the Infoseek Member will have the power to
dismiss the General Manager, after consultation in good faith with the
other. The General Manager shall be an employee of Infoseek or its
Affiliates.
(b) DUTIES OF GENERAL MANAGER. Subject to and without limiting the
provisions of Sections 1(b)(i) and 1(b)(iii) above, the General
Manager will implement the Initial Business Plan (as defined in
Section 2(c)) and subsequent Annual Business Plans and Budgets and
shall exercise control over the day-to-day operations of the Portal
Products, including editorial tactics, editorial strategy and creative
development, production (technical or otherwise), distribution,
merchandising, advertising sales and marketing and promotion.
(c) BUSINESS PLAN. Prior to the date hereof, Disney and Infoseek have
agreed on an initial three year business plan for the Portal Products
(the "Initial Business Plan"), attached hereto as Exhibit A. At least
thirty (30) days prior to the beginning of each fiscal year (ending
September 30) during the Term, the General Manager shall prepare for
the unanimous approval of the Advisory Committee an annual update to
the initial business plan and an annual budget (collectively, the
"Annual Business Plan and Budget") for the subsequent fiscal year
utilizing the categories and methods established in the Initial
Business Plan (i.e., investment commitments, revenue and operating
income targets), as well as an annual marketing plan for the Portal
Products (the "Annual Marketing Plan").
(d) ROLLOVER. If (i) in any of the first three years after the date
hereof, an Annual Business Plan and Budget is not approved by a
unanimous vote of the Advisory Committee by the last day of the
preceding fiscal year, then, until a new Annual Business Plan and
Budget is approved, the corresponding year of the Initial Business
Plan will be effective and (ii) after the first three years, if an
Annual Business Plan and Budget for any fiscal year are not approved
by a unanimous vote of the Advisory Committee by the last day of the
preceding fiscal year, then, until a new Annual Business Plan and
Budget is approved, the Annual Business Plan and Budget for the
immediately preceding fiscal year will remain in effect (or, if no
Annual Business Plan and Budget is approved in the first three
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years, the last year of the Initial Business Plan will remain in
effect), and in each case in clause (ii), increased in an amount equal
to 50% of the increase in the projected revenue growth for the Portal
Products between the current fiscal year and the subsequent fiscal
year, provided, that, if such projected revenue growth is a negative
number, such aggregate amount shall be increased in an amount equal to
the percentage increase or decrease in the Consumer Price Index for
Urban Wage Earners and Clerical Workers [All Urban Consumers], U.S.
City Average (1982-84 = 100) Unadjusted, all items index, published by
the Bureau of Labor Statistics, United States Department of Labor (the
"CPI Factor") for the preceding twelve-month period. In the event that
the Advisory Committee cannot agree on projected revenue growth for
the Portal Products for a particular fiscal year, the Annual Business
Plan and Budget for such fiscal year shall be increased in an amount
equal to fifty percent (50%) of the actual growth rate in revenues for
the Portal Products between the two prior fiscal years. If such growth
rate is a negative number, such Annual Business Plan and Budget shall
be adjusted by the CPI Factor. In each year, the Annual Business Plan
and Budget as adjusted as provided above shall be the baseline for any
adjustments for the subsequent year. The above provision to increase
the Annual Business Plan and Budget by the projected revenue growth
for the Portal Products shall only be effective for a five year period
beginning at the Effective Time; thereafter, if the Advisory Committee
does not approve an Annual Business Plan and Budget, the Annual
Business Plan and Budget for the prior year shall be adjusted by the
CPI Factor. For clarification purposes, the limitation of the
projected revenue growth factor to a five (5) year period shall
expressly not apply to the License Agreement which, by its terms, does
not so limit the application of the projected revenue growth factor.
(e) PLACEMENT OF DISNEY SERVICES. Infoseek agrees that the following
online services owned or controlled by Disney and its Affiliates shall
be included within the Portal Products and shall receive the most
prominent placement within the appropriate channels, services, sites
and categories (collectively, "Components") of the Portal Products and
Infoseek Services: (i) the online service produced and distributed
pursuant to the ESPN Agreement (the "ESPN Service") will be the most
prominent featured online service within the sports Component of the
Portal Products and Infoseek Services, (ii) the online service
produced and distributed pursuant to the ABC News Agreement (the "ABC
News Service") will be the most prominent featured online service
within the news Component of the Portal Products and Infoseek
Services, (iii) the Disney kids and family services (i.e., Xxxxxx.xxx,
Disney's Daily Blast and Xxxxxx.xxx) (the "Disney Kids/Family
Service") will be the most prominent featured services within the
family or kids Component of the Portal Products and Disney's Internet
Guide will be featured on the family or kids Component of the Portal
Products and Infoseek Services, (iv) the XXX.xxx service (the "ABC
Service") will be the most prominent featured service within the
entertainment Component of the Portal Products and Infoseek Services,
(v) all Disney specialty retail shopping/commerce online services
(e.g., Disney Store, ESPN Store, ABC
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Store as opposed to SportsMart, which would not be considered as a
specialty retailer) shall be featured within the appropriate
Components of the shopping/commerce services of the Portal Products
and Infoseek Services and the Disney Travel Store shall be a featured
service within the appropriate Components of the Portal Products and
Infoseek Services. For all other services developed, produced or owned
by Disney and its Affiliates, Infoseek and Disney agree to negotiate
in good faith to include such service within the appropriate Component
of the Portal Products and Infoseek Services. In addition, to the
extent that the main home page, personalized pages or other similar
pages of the Portal Products and Infoseek Services includes links,
banners, or third party content, then links, banners (excluding ad
banners) or content provided by the services referenced in clauses (i)
to (iv) above shall be afforded equally prominent placement. For
purposes of this Agreement, "most prominent placement" and "most
prominent featured service" shall mean, at a minimum (1) an above the
fold placement (i.e., visible to an end user without scrolling or
navigation on a 640 by 480 pixel page) of a feature, icon or link on
the first page of the relevant Component (i.e., the sports Component
within the Portal Products), which feature, icon or link shall be at
least equal in size to the largest feature, icon or link featured on
such first page (excluding ad banners), (2) that the content, brand,
icons, and links of Disney-controlled services shall be placed within
the appropriate Components of the Portal Products with the largest
size on the same page (excluding ad banners). For example and without
limitation, on the first page seen by viewers of each section of the
sports Component (e.g., sports home page, sports news page, scores
pages, teams page, league page, information pages, etc.) such page
will include a link to XXXX.xxx (to the extent that such page contains
any links to content pages) that is the largest in size. If there is a
headline or scores box for sports or news headlines or scores on a
page, ABC News headlines and ESPN headlines and scores shall appear as
the first headlines/scores in the appropriate boxes. To the extent
that any such page includes content (e.g., sports headlines,
columnists, polls, scores, specialized league information), XXXX.xxx
content shall have most prominent placement on any such page, subject
to availability of appropriate content (i.e., if XXXX.xxx does not
have original content on high school football, if there is a sport
page featuring high school football, such page shall not be required
to feature content from XXXX.xxx). The placement and other obligations
of Infoseek hereunder shall cease with respect to the ESPN Service
and/or the ABC News Service on the end of the term of their respective
Partnership Agreements of even date herewith, including renewals, if
any (provided, however, that if either Partnership Agreement is
terminated by ESPN Partner or ABC Partner pursuant to Section 11.3(c)
of such Partnership Agreement, Infoseek's obligations under Sections
2(e) and 2(f) hereof shall continue in effect for the earlier of (i)
remaining term of the respective Partnership Agreement or (ii) one (1)
year).
(f) PLACEMENT OF INFOSEEK. Disney agrees to integrate Infoseek's search
and directory technology and service links into all of its owned and
controlled online
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services to the extent features of such type are integrated into the
services, as mutually agreed by the parties. The appropriate Infoseek
utility, icons, links and banners (including those branded with the
names and brands of the Portal Products) shall receive the most
prominent placement (excluding ad banners) on all pages within such
services where Disney determines to include search and directory
services. In addition, to the extent that Infoseek decides to provide
most prominent placement to any other Disney sites or services, Disney
agrees to provide Infoseek with most prominent placement for the
appropriate Infoseek search utilities, links and banners on all pages
within such services that Disney determines to include search and
directory. Navigational elements that will allow the user to access
the Portal Products within one click will be available on all pages of
all Disney Services referenced in Section 3(e) above. If such
navigational elements include search and directory, such services will
be supplied by Infoseek. For purposes of Sections 3(e) and 3(f),
"Disney" shall include Disney Enterprises, Inc. and its Affiliates.
(g) SERVICE STANDARDS. Infoseek agrees to provide the Portal Products
with services (including but not limited to web ops, ad sales,
customer service and general and administrative support) of the same
quality, reliability, availability and such other standards of
performance as it provides to any of its other services with similar
traffic activity and complexity.
3. CONTENT AND ADVERTISING STANDARDS.
Attached as Exhibits X-0, X-0 and B-3 are the written policy of standards
and practices for content and advertising which will apply to the Portal
Products, the ESPN Venture and the ABC News Venture and Infoseek, respectively.
Disney agrees that the policy for the Portal Products will also apply to all
other Disney-branded or owned internet services and Infoseek agrees that such
policy will also apply to all other Infoseek-branded or owned internet services;
provided, however, that the foregoing policy shall not apply to search results
that direct a viewer outside of the Portal Products. Disney agrees that the
policies for the Portal Products shall not be more restrictive than the policies
applied to any internet services or sites owned and operated by Disney or any
of its Affiliates. The Disney Member will have the sole ability, acting
reasonably and in good faith and after consultation with the Infoseek Member, to
approve changes in the attached written policies for the ESPN Venture, ABC News
Venture and the Portal Products, regardless of Disney's percentage ownership of
Infoseek Stock. Any change in the policy as applicable to Infoseek-branded or
owned internet services (without including the ESPN Venture, the ABC News
Venture or the Portal Products) will be subject to approval by the Advisory
Board as long as Disney owns at least 10% or more of the then-outstanding shares
of Infoseek stock.
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4. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
(a) INFOSEEK REPRESENTATIONS AND WARRANTIES. Infoseek represents and
warrants to Disney that (a) it has the right, power and authority to
enter into this Agreement and fully to perform its obligations under
this Agreement; (b) the making of this Agreement by it does not
violate any agreement existing between it and any other person or
entity; (c) it complies, and at all times shall comply, with all
applicable laws, rules and regulations in effect at the time services
are performed pursuant to this Agreement pertaining to the subject
matter hereof; and (d) it shall not exercise any of the rights granted
to it under or pursuant to this Agreement in a manner that shall
violate any applicable law, rule or regulation.
(b) INFOSEEK INDEMNIFICATION OBLIGATIONS. Infoseek agrees to, and shall,
indemnify, defend and hold harmless Disney and its Affiliates and
their respective directors, shareholders, officers, agents, employees,
successors and assigns from and against any and all claims, demands,
suits, judgments, damages, costs, losses, expenses (including
reasonable attorneys' fees and expenses) and other liabilities arising
from actions brought by third parties in connection with or related
to, directly or indirectly, any breach or alleged breach of any of the
representations or warranties made by it under Section 4(a) of this
Agreement, provided, that Disney gives Infoseek full control over the
defense (including any settlements) of any such claim; and Disney
provides Infoseek with full information and reasonable assistance, at
Infoseek's expense. Infoseek shall keep Disney informed of, and
consult with Disney in connection with the progress of such litigation
or settlement and (i) Infoseek shall not have any right, without
Disney's written consent, to settle any such claim if such settlement
arises from or is part of any criminal action, suit or proceeding or
contains a stipulation to or admission or acknowledgment of, any
liability or wrongdoing (whether in contract, tort or otherwise) on
the part of any Disney Affiliate, and (ii) Disney shall promptly
notify Infoseek of any such claim
(c) DISNEY REPRESENTATIONS AND WARRANTIES. Disney represents and warrants
that (a) it has the right, power and authority to enter into this
Agreement and fully to perform its obligations under this Agreement;
(b) the making of this Agreement by it does not violate any agreement
existing between it and any other person or entity; (c) it complies,
and at all times shall comply, with all applicable laws, rules and
regulations in effect at the time services are performed pursuant to
this Agreement pertaining to the subject matter hereof; and (d) it
shall not exercise any of the rights granted to it under or pursuant
to this Agreement in a manner that shall violate any applicable law,
rule or regulation.
(d) DISNEY INDEMNIFICATION OBLIGATIONS. Disney agrees to, and shall,
indemnify, defend and hold harmless Infoseek and its Affiliates, and
its directors, shareholders, officers, agents, employees, successors
and assigns from and against any and all claims, demands, suits,
judgments, damages, costs, losses, expenses (including reasonable
attorneys' fees and expenses) and other liabilities
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arising from actions brought by third parties, in connection with or
related to, directly or indirectly, any breach or alleged breach of
the representations or warranties made by it under Section 4(c) of
this Agreement. Infoseek shall promptly notify Disney of any such
claim; Disney gives Infoseek full control over the defense (including
any settlements) of such claim; and Infoseek provides Disney with full
information and reasonable assistance, at Disney's expense; provided
however, that (i) Disney shall keep Infoseek informed of and consult
with Infoseek in connection with the progress of such litigation or
settlement; and (ii) Disney shall not have any right, without
Infoseek's written consent, to settle any such claim if such
settlement arises from or is part of any criminal action, suit or
proceeding or contains a stipulation to or admission or acknowledgment
of, any liability or wrongdoing (whether in contract, tort or
otherwise) on the part of Infoseek.
5. TERM AND TERMINATION.
(a) TERM. The term of this Agreement shall commence as of the Effective
Time and shall continue as long as Disney and its Affiliates own any
shares of Infoseek stock.
(b) TERMINATION. Without prejudice to any other rights or remedies
available to the parties, Disney and Infoseek shall each have the
right, in its sole discretion, to terminate this Agreement upon
written notice to the other in the event of the occurrence of one or
more of the following:
(i) In the event that Licensee files a petition in bankruptcy through
a decision of the majority of Licensee's Disinterested Directors
(as defined in the Governance Agreement by and between the
parties dated the date hereof) or is adjudged bankrupt or is
placed in the hands of a receiver; or
(ii) The other party breaches any material term or provision of this
Agreement and fails to cure such breach within sixty (60) days
after the non-breaching party delivers written notice thereof to
the other party stating what actions are required to cure such
breach or indicating that such breach is incapable of being
cured; provided, that the alleged breaching party shall use its
best efforts to timely cure such breach.
(c) INJUNCTIVE RELIEF. Each party acknowledges and agrees that the other
party may be irreparably harmed by any material breach of this
Agreement by it. Therefore, each party agrees that in the event that
it breaches any of its obligations hereunder, the other parties in
addition to all other remedies available to it under this Agreement,
or at law or in equity, shall be entitled to seek all forms of
injunctive relief including decrees of specific performance, without
showing or proving that it sustained any actual damages and without
posting bond.
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6. GENERAL PROVISIONS.
(a) NOTICES. All notices which either party is required or may desire to
serve upon another party shall be in writing and addressed as follows:
(i) if to Disney :
The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Buena Vista Internet Group
000 X. Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to Infoseek:
Infoseek Corporation
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Any such notice may be served personally or by mail (postage prepaid),
facsimile (provided oral confirmation of receipt is immediately
obtained and a hard copy is concurrently sent by internationally
commercially recognized overnight delivery service), internationally
commercially recognized overnight delivery service (such as Federal
Express or D.H.L.) or courier. Notice shall be deemed served upon
personal delivery or upon actual receipt. Any party may change the
address to which notices are to be delivered by written notice to the
other parties served as provided in this Section 6(a).
(b) ENTIRE AGREEMENT. This Agreement, together with the Exhibits
attached hereto and hereby incorporated herein by reference,
constitutes the complete, final and exclusive understanding and
agreement between the parties with respect to the transactions
contemplated, and supersedes any and all prior or contemporaneous oral
or written representation, understanding, agreement or communication
between the parties concerning the subject matter hereof.
(c) AMENDMENTS. All amendments or modifications of this Agreement shall
be binding upon the parties so long as the same shall be in writing
and executed by each of the parties hereto.
(d) WAIVERS. No waiver of any provision of this Agreement or any rights
or obligations of any party hereunder shall be effective, except
pursuant to a written instrument signed by the party waiving
compliance, and any such waiver shall be effective only in the
specific instance and for the specific purpose stated in such writing.
(e) NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended
or shall be construed to give any person, other than the parties
hereto, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
(f) ASSIGNMENT. No party shall, directly or indirectly, assign this
Agreement to any third party, except that either party may assign this
Agreement to its parent corporation or any entity of which its parent
owns at least 80% of the voting equity.
(g) HEADINGS. The section and subsection headings and captions appearing
in this Agreement are inserted only as a matter of convenience and
shall not be given any legal effect.
(h) SEVERABILITY. If any restriction, covenant or provision of this
Agreement shall be adjudged by a court of competent jurisdiction to be
void as going beyond what is reasonable in all the circumstances for
the protection of the interests of the party seeking to enforce such
restriction, covenant or provision, such restriction, covenant or
provision shall apply with such modifications as may be necessary
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to make it valid and effective. In the event that any provision of
this Agreement should be found by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
shall not in any way be affected or impaired thereby.
(i) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California without giving effect to principles of conflicts
of law. Any action arising out of or relating to this Agreement shall
be filed only in the courts of the State of California for the County
of Los Angeles or the United States District Court for the Central
District of California. The parties hereby consent and submit to the
personal jurisdiction of such courts for the purposes of litigating
any such action.
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IN WITNESS WHEREOF, the duly authorized representatives of each party have
executed this Agreement as of the day and year first written above.
DISNEY ENTERPRISES, INC. INFOSEEK CORPORATION
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------ ------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Sr. Vice President Title: President and CEO
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