EXHIBIT 10.18
NBC-TALK CITY CHAT SERVICES AGREEMENT
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This Agreement, effective as of August 21, 1998 ("Effective Date"), is made
and entered into by and between Live World Productions, the owner of the Talk
City and OnNow world wide, web services, ("LWP"), a California corporation, with
offices at 000 Xxxxxxx Xxxx Xxxxx, Xxxxx, 000, Xxxxxxxx, XX 00000 and NBC
Multimedia, Inc. ("NBC"), a Delaware corporation, with offices at 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
TERMS
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1. Definitions. The following definitions shall apply to this Agreement.
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1.1 Chat. "Chat" shall mean an online chat among End Users, an
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auditorium chat or BBS originating from a NBC/Talk City Area which is located
within the Talk City Service, with or without a particular theme, topic, guest,
host or event and which may be scheduled for a particular date and time.
1.2 Chat Competitors. "Chat Competitors" shall mean any other online
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chat service which LWP reasonably believes directly competes with the Chat
services offered by the Talk City Service.
1.3 End-User(s). "End-User(s)" shall mean any person or entity which
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accesses any NBC/Talk City Area either via the NBC Service or directly from a
Talk City Service, including any version of the Talk City Service which LWP may
create in cooperation with any other third party (i.e., another co-branded
version of the Talk City Service).
1.4 End User/NBC Themed Area or Areas. "Talk City/NBC Themed Areas"
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shall mean the specific room, rooms or areas within the Talk City Service which
contain Chats regarding NBC. NBC's Related Entities and any NBC Programs which
are created at any time by End Users but which are not expressly authorized by
NBC or LWP or created with the cooperation of NBC.
1.5 NBC Created Room or Rooms. "NBC Created Room" shall mean the
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specific room, rooms, or areas, including BBS and auditorium events, within the
Talk City Service which are authorized and/or created with the cooperation of
NBC which contain certain branding, NBC designated links, NBC technologies
and/or content from the NBC Service and certain of the television programs
broadcast or distributed by the NBC Television Network or any of NBC's Related
Entities (the "NBC Programs") to be provided by NBC in its sole discretion, to
which NBC or LWP directs End Users pursuant to this Agreement.
1.6 NBC OnNow Area or Areas. "NBC OnNow Area" shall mean the
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specific area within the OnNow branded area of the Talk City Service which
contains certain information, branding, NBC designated links, NBC technologies
and/or content from the NBC Service and certain of the NBC Programs to be
provided by NBC in its sole discretion, to which NBC or LWP directs End Users
pursuant to this Agreement.
1.7 NBC-Specific Area or Areas. "NBC-Specific Area" shall mean the
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NBC Created Rooms, the NBC OnNow Areas, the Talk City/NBC Themed Areas and the
End User/NBC Themed Areas.
1.8 NBC/Talk City Area or Areas. "NBC/Talk City Area" shall mean,
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collectively, the NBC-Specific Areas and any other area of the Talk City Service
which is reached by an End User via the NBC Service.
1.9 Talk City/NBC Themed Areas. "Talk City/NBC Themed Areas" shall
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mean the specific room, rooms or areas within the general Talk City Service
which contain Chats regarding NBC, NBC's Related Entities and any NBC Programs
which are created at any time by LWP but which are not expressly authorized or
created with the cooperation of NBC.
1.10 NBC Service. "NBC Service" shall mean the Internet access. Web
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site or related service owned, operated, distributed or authorized to be
distributed by or through NBC with the URL of xxx.xxx.xxx or such other Internet
access, Web Site or related service (with a different URL) on or through which
NBC chooses to place the majority of the type of online content related to the
NBC Programs currently available at xxx.xxx.xxx in the future in its sole
discretion. Such term does not apply to any other NBC, or Related Entity,
Internet services including, but not limited to, NBC-IN, Snap! or MSNBC
Interactive (an "Other Internet Service"). Notwithstanding the foregoing, NBC
shall have the right, but not the obligation, to create additional and separate
NBC/Talk City Areas which primarily contain the branding and material of Other
Internet Services operated by NBC or its Related Entities (an "Additional
NBC/Talk City Area"), and at such time that NBC chooses to create such
Additional NBC/Talk City Areas, then the relevant Other Internet Service will be
deemed to be an NBC Service for purposes hereof, provided, however, that NBC's
inclusion, in its sole discretion, of some, but not a majority, of the material
and branding included on an Other Internet Service within a NBC/Talk City Area
originally contemplated hereby will not be sufficient to classify such Other
Internet Service as an NBC Service for purposes hereof.
1.11 Other Network. "Other Network" shall mean any national (e.g.,
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ABC, CBS, Xxx, XX, UPN, USA Network or Pax Net) or regional broadcast television
network, individual broadcast television station group, or their affiliates.
1.12 Preferred. "Preferred" shall mean when a link to or promotion
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of either the Chat services provided by the Talk City Service or the NBC
Service, whichever is relevant, appears in a list or a format other than a list,
the link or promotion is in a prominent, above the fold position which is no
less visually prominent than links to, or promotions of, the services of any
Chat Competitors or Other Network, which is relevant.
1.13 Related Entity. "Related Entity" shall mean any distributor or
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service provider of a party to this Agreement, or an entity in which either
party holds at least a five percent (5%) equity interest, or an entity which
holds at least a five percent (5%) equity interest in either party.
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1.14 Talk City Service. "Talk City Service" shall mean any
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communication, entertainment information, transaction or other related service
owned, operated, distributed or authorized to be distributed by or through LWP
or any Related Entity throughout the world, including, but not limited to, the
"Talk City" and "OnNow" brand services.
2. Creation and Operation of NBC/Talk City Areas.
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2.1 LWP Services. LWP will provide all services required for the
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creation, maintenance and operation of the NBC/Talk City Areas as contemplated
herein, including, but not limited to, any Chat forums. Chat events, instant
messaging as part of the EZ Talk Pro client, bulletin boards, the production
services and other related content or services provided by LWP to any other
third parties now or in the future which are requested by NBC. LWP acknowledges
that, until such time as NBC in its sole discretion decides to the contrary, the
NBC Service, the NBC/Talk City Areas, and the persistent NBC branded material
which follows End Users that come from the NBC Service will not promote or
directly link to any of the e-mail or personal home page services offered by LWP
on the Talk City Service or any promotions therefor; provided, however, that NBC
acknowledges that once any End User actually reaches the actual Chat itself or
the channel, community, or content pages which are similar to those which
currently appear on the Talk City Service within any area of the Talk City
Service other than NBC Created Rooms and NBC/OnNow Areas, LWP may place
reasonable promotional notices of other non-Chat Talk City Services which may
include the e-mail or personal home page services offered by LWP on the Talk
City Service, but which may not be more numerous or prominent than the
promotions therefor which appear in other areas of the Talk City Service. The
NBC-Specific Areas will be accessed by End Users either via the NBC Service or
the Talk City Services. LWP will work with NBC to create all versions of the
NBC/Talk City Areas using material to be supplied by NBC and NBC's licensors,
suppliers and agents. LWP agrees that all NBC/Talk City Areas, and each version
thereof, will be subject to NBC's final written approval of all aspects thereof
and any and all elements contained therein. LWP will provide all necessary
facilities, servers, connectivity and related equipment and technology required
to host the NBC/Talk City Areas, including any bulletin boards, instant
messaging as part of EZ Talk Pro client, Chat events, or other services, on
LWP's Internet servers and will ensure that such resources will support any of
the Talk City services or other technology which NBC reasonably requests that
LWP use or support in connection with the NBC/Talk City Areas during the term of
this Agreement. LWP agrees that, at all times during the term of this
Agreement, the resources it provides to host the NBC/Talk City Areas shall be
sufficient to support and manage any number of simultaneous End Users that wish
to use the NBC/Talk City Areas at any time. LWP shall provide a means for End
Users to download the software required, at no cost, for their participation in
the NBC/Talk City Areas. Nothing in this Agreement shall be construed as a
license to NBC of any rights in or to such software. LWP shall operate and
maintain the Talk City Services in a high-quality manner which will be at least
consistent with LWP's and NBC's then-current terms of service or code of
conduct. LWP shall bear all the costs of providing the NBC/Talk City Areas and
services which it is obligated to provide hereunder.
2.2 Chat Hosts. LWP shall be responsible for engaging, training and
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compensating all Chat hosts for the NBC Created Rooms when a host is used,
provided that NBC
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may choose to supervise such Chats itself if and when it wishes. LWP will not
provide moderation for any bulletin boards or other similar services, other than
NBC OnNow Areas, which NBC chooses to include with the NBC/Talk City Areas, but
NBC may choose to supervise such bulletin boards or similar services itself if
and when it wishes.
2.3 Terms of Service; Removal of Content.
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2.3.1 NBC Created Rooms and NBC OnNow Areas - NBC shall have the
right to create the terms of service and code of conduct for the NBC Created
Rooms and any revisions thereof, provided that NBC agrees to incorporate any
suggested changes thereto reasonably requested by LPW from time to time. NBC
shall have the right to remove, or cause to be removed, from the NBC Created
Rooms and NBC OnNow Areas any End User information, statements or other material
or content which NBC, in its sole discretion, chooses. In addition, LWP shall
have the right to remove, or cause to be removed, from the NBC Created Rooms and
NBC OnNow Areas any information, statements or other material or content which
is not provided to it by NBC or NBC's licensors, suppliers or agents, if such
material is in violation of any terms of the then current terms of service or
code of conduct therefor.
2.3.2 Talk City/NBC Themed Areas and End User/NBC Themed Areas -
NBC and LWP shall mutually agree upon the terms of service and code of conduct
for the Talk City/NBC Themed Areas and End User/NBC Themed Areas and any
revisions thereof. Either party shall have the right to remove, or cause to be
removed, from the Talk City/NBC Themed Areas and End User/NBC Themed Areas any
information, statements or other material or content, which is not provided to
it by the other party or such party's licensors, suppliers or agents, if such
material is in violation of any terms of the then current terms of service or
code of conduct therefor. In addition, NBC will have the right to de-link or
otherwise remove links from the NBC Service and the NBC-Specific Areas to any
content, Chats or web pages in such Talk City/NBC Themed Areas and End User/NBC
Themed Areas in NBC's sole discretion.
2.3.3 Other Areas of Talk City Service - LWP shall have the
right to develop the terms of service and code of conduct for the other areas of
the Talk City Service, including any NBC/Talk Areas which are not NBC-Specific
Areas, and any revisions thereof, provided that LWP agrees to incorporate any
suggested changes thereto reasonably requested by NBC from time to time. LWP
shall have the right to remove, or cause to be removed, from such other areas of
the Talk City Service, any information, statements or other material or content
if such material is in violation of any terms of the then current terms of
service or code of conduct therefor. NBC will have the right to de-link or
otherwise remove links from the NBC Service and the NBC-Specific Areas to any
content, Chats or web pages in such other areas of the Talk City Service in
NBC's sole discretion.
2.3.4 General Policies - Subject to the foregoing provisions of
this Section 2.3, the parties agree that they shall work together in good faith
to develop and maintain terms of service and codes of conduct for all of the
NBC/Talk City Areas described above which are reasonably similar to each other.
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2.4 Support. NBC may, in its sole discretion, provide personalities,
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Chat hosts and other content area experts for the Chats in the NBC Created Rooms
as well as information for display in the NBC OnNow Area on a schedule which is
acceptable to both parties. LWP agrees to supply NBC with text based
transcripts of any special event Chats for posting on the NBC Service.
2.5 Collection of Information from End Users.
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2.5.1 Usage Data - LWP will electronically tag and track each
End User as they access and use the NBC/Talk City Areas and supply NBC any
aggregate, End User data, traffic patterns, and user feedback related to the
NBC/Talk City Areas, including any use of Talk City Services by End Users coming
from the NBC Service, which LWP collects on a monthly basis. NBC may make
reasonable requests from time to time that LWP provide it with certain data
regarding the NBC/Talk City Areas collected from individual End Users, subject
to LWP's ability to receive such data.
2.5.2 Registration of End Users - In general, all End Users
coming from the NBC Service will be presented with the opportunity to register
their personal chat nickname for use in chatting, message boards or other non-
premium Talk City Services. However, at all times during the term of this
Agreement unless NBC agrees, in its sole discretion, to the contrary, LWP agrees
that all End Users of the NBC/Talk City Areas will have the right to use such
services (i) at no cost unless such End User has obtained access to the Talk
City Service via a third party that chooses to charge such End User a non-
content specific access charge and (ii) as a guest user who will not be required
to complete a registration process, provided that NBC acknowledges that any such
guest users will not be permitted to participate in Talk City Services using any
nicknames reserved by End Users of the Talk City Service who have completed the
required registration process. LWP agrees that NBC shall have the reasonable
right to customize, if technically feasible, the registration process, including
the look and feel thereof, for any End Users of the NBC/Talk City Areas coming
from the NBC Service. In addition, if LWP or NBC determine that End Users coming
from the NBC Service should provide personal information in connection with any
of the registration processes for the NBC/Talk City areas described above, then
the parties must first mutually agree that such registration process is
necessary and then mutually agree upon all aspects thereof. LWP shall provide
NBC, on a monthly basis, with reports which provide NBC with information
collected by LWP during the past month in connection with any of the
registration processes described above or from End Users of the NBC/Talk City
Areas who come from the NBC Service (the "Registration Information"). Subject to
the terms of Section 3.4, NBC acknowledges that LWP may offer, in LWP's sole
discretion, in the future, certain premium add-ons and services related to the
Talk City Services; provided, however, that if such premium add-ons and services
are offered or made available in the NBC-Specific Areas or to any End Users who
come from the NBC Service, then such offers and promotions thereof will be
subject to the approval of NBC and if so approved will be no more costly to the
End Users coming from the NBC Service than to users coming from other areas of
the Talk City Service.
2.5.3 Privacy Policy - All collection and use of any information
from End Users, whether through the registration process or otherwise, shall be
subject to a privacy policy to
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be mutually agreed upon by NBC and LWP which privacy policy will, at a minimum,
inform End Users of how such Registration Information or other information may
be used by the parties and will provide End Users with the option of declining
to receive any or all of the mailings or other services offered by either party
(the "Privacy Policy"). Each End User shall be able to access the Privacy Policy
from the NBC/Talk City Areas and shall be clearly informed of the terms of the
Privacy Policy during any registration process. Neither party may use any
Registration Information in any manner which is not strictly in compliance with
the terms of the Privacy Policy.
2.6 Ownership and Use of End User Information. LWP and NBC shall
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jointly own all Registration Information and other information collected from
End Users in connection with the NBC/Talk City Areas. Subject to strict
compliance with the terms of the Privacy Policy described above, both parties
shall be permitted to use such Registration Information and other information
for marketing and other purposes so approved through written notice by each
party, provided that no such individual user data shall be used by either party
for direct marketing or direct solicitation purposes without the prior written
consent of the other party.
2.7 Use of Trademark. Both parties acknowledge and agree that: (i)
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each party's trade names and trademarks are and shall remain the sole property
of the owning property; and (ii) nothing in this Agreement shall confer any
right of ownership in the other party's trade names and trademarks.
2.8 Promotion and Marketing. NBC may use the "Talk City" trademark
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and logo, any depictions of the actual NBC/Talk City Areas or material created
for the NBC/Talk City Areas pursuant hereto, as well as any other material,
names, logos and trademarks of LWP which LWP chooses to make available to NBC in
its sole discretion (the "LWP Material"), in any marketing and promotion
activities in which NBC may choose to engage, provided that such use shall be
made in accordance with any guidelines regarding such LWP Material provided by
LWP, including any amended guidelines. LWP may use any material supplied to LWP
by NBC, including any NBC names, logos and trademarks included therein, (the
"NBC Material") for the specific purposes described herein subject to the terms
hereof. In addition, LWP may use NBC Material for certain limited marketing and
promotional purposes if it first obtains the prior written approval of NBC
regarding each such use. All uses of NBC Material by LWP shall be made in
accordance with any guidelines regarding the NBC Material provided by NBC,
including any amended guidelines, and any and all NBC guidelines regarding the
use of NBC intellectual property, talents' names, likenesses and images as well
as any other requirement related thereto. LWP will provide NBC with samples of
marketing literature and material that include any NBC Material for purposes of
determining compliance with NBC's guidelines prior to any use thereof. Neither
party will make any statements to the effect, or which imply, that any other
party "certifies," endorses or guarantees the performance of any service or
product of such party. Except as otherwise provided in a separate agreement
between the parties, neither party will use or display any name, trademark or
logo of the other parties hereto in any other way or after the termination of
this Agreement. The parties agree to issue a mutually agreeable unbundled press
release for the launch of the expanded NBC/Talk City Areas and for any other
events and topics of public interest about which the parties mutually agree.
Furthermore, both parties agree to make commercially reasonable efforts to co-
market the
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relationship through any relevant printed or online marketing materials related
to each party's services described herein which the parties may distribute;
provided, however, that the parties acknowledge that neither party guarantees
that any such material will actually be distributed. Notwithstanding the
foregoing but subject to the terms of Section 12.9, either party may issue press
releases that the parties agree are required by law or regulation without the
consent of the other party.
2.9 Promotional Consideration. In consideration of this Agreement,
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in the Initial Term and in each of any Renewal Terms, LWP shall provide to NBC,
or any other party designated by NBC which is not an online chat service
provider that LWP reasonably believes directly competes with the Talk City
Service, a total of at least two million (2,000,000) barter advertising
impressions (per year) for use in promoting the NBC Service or any Web site(s)
or other products or services of NBC or its designees which do not compete with
the Talk City Service. In the event that the otherwise available advertising
banner inventory in the Talk City Service becomes more than seventy-five percent
(75%) sold out, LWP shall have the right to request in writing that NBC forgo a
portion of the inventory described above, and NBC shall not unreasonably refuse
such request; provided, however, that if LWP sells such inventory, then such
sales shall be subject to the terms of Section 3.2. If LWP is unable to sell all
of the such inventory, then each of the parties shall have the right to use
fifty percent (50%) of such unsold advertising inventory to advertise any of
such party's Web site(s) or other products or services or its designees which
are not Other Networks or Chat Competitors. LWP will provide a prominent NBC-
approved and NBC-branded graphical link to the NBC/Talk City Areas placed above
the fold on the home page of both the "Talk City" branded and the "OnNow"
branded Talk City Services at all times during the term of this Agreement. LWP
will also include Chat Room Chat events and features in the Talk City Service's
calendar of events, subject to NBC approval. LWP will include the links to and
promotion of areas within the NBC Service related to NBC Programs described in
Exhibit A hereto. In return, NBC agrees to provide an above the fold graphical
link to the NBC/Talk City Areas from the home page of the NBC Service, the size
and placement of which shall be mutually agreed upon by the parties. In
addition, NBC shall use reasonable commercial efforts to direct End Users toward
the NBC/Talk City Areas. NBC will endeavor to seek some form of Talk City
related cross-promotional opportunities, which may include on-air promotion and
which will generally be branded with the "Talk City" name, between the NBC
Service, the NBC/Talk City Areas, and/or any relevant NBC Programs; provided,
however, that the parties acknowledge that NBC does not guarantee that any such
cross-promotion will actually occur. Notwithstanding the above, at the end of
the Initial Term, NBC shall provide LWP with a compilation video of any
promotions for the NBC/Talk City Areas of the NBC Service containing the "Talk
City" name that actually appear on or in connection with the NBC Programs for
LWP's review. LWP may make no other use of such compilation, or any part
thereof, without NBC's prior written consent.
2.10 Ownership. Except for material previously owned by LWP and
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provided for use hereunder and the material described in Section 2.6, NBC and
its licensors, suppliers, agents and Related Parties will own all rights to the
material in the NBC-Specific Areas, including, but not limited to, any material
created by either party for use therein, Chat transcripts, instant messages, and
bulletin board messages. To the extent that NBC has the requisite rights to do
so and to the
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extent that such grant is not subject to third party restrictions, NBC grants
LWP a royalty free license to use any NBC oriented NBC/Talk City Area
transcripts, instant messages, and bulletin board messages for the Initial Term
of this agreement and for each subsequent Renewal Term (as such terms are
defined below) subject to the terms hereof and the Privacy Policy. NBC shall
have the right to set any guidelines for the archiving and placement of such
materials on the Talk City Service or any other usage by LWP that it chooses to
set in its sole discretion. NBC acknowledges that LWP does not currently and
does not intend in the future to log or make transcripts of non-auditorium
events or instant messages.
3. Advertising in the NBC/Talk City Areas.
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3.1 NBC Advertising Inventory Sales. NBC shall have the right to
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sell all advertising and/or sponsorships which appear in the NBC-Specific
Areas, other than the End User/ NBC Themed Areas (the "NBC Advertising
Inventory"); provided, however, that if LWP ever makes it possible to sell
advertising and/or sponsorships whose only target is End User/NBC Themed
Areas, then such inventory shall be deemed NBC Advertising Inventory for
purposes hereof. If NBC is unable to sell all available NBC Advertising
Inventory, then it may, in its sole discretion, allow LWP to sell such unsold
NBC Advertising Inventory. If LWP is unable to sell all of the NBC Advertising
Inventory which NBC makes available to it or NBC chooses not to make its
unsold NBC Advertising Inventory available to LWP, then each of the parties
shall have the right to use fifty percent (50%) of such unsold NBC Advertising
Inventory to advertise any of such party's Web site(s) or other products or
services or its designees which are not Other Networks or Chat Competitors.
Any Gross Revenue attributable to the sale of NBC Advertising Inventory which
is received by the selling party shall be divided between the parties with the
relevant selling party receiving sixty-five percent (65%) thereof and the non-
selling party receiving the remaining thirty-five percent (35%) thereof.
3.2 LWP Advertising Inventory Sales. Subject to the terms of Section
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3.1, LWP shall have the right to sell all advertising and/or sponsorships which
appear in any areas of the NBC/Talk City Areas which are not NBC Created Rooms,
NBC OnNow Areas or Talk City/NBC Themed Areas (the "LWP Advertising Inventory").
If LWP is unable to sell all available LWP Advertising Inventory, then it may,
in its sole discretion, allow NBC to sell such unsold LWP Advertising Inventory.
If NBC is unable to sell all of the LWP Advertising Inventory which LWP makes
available to it or LWP chooses not to make its unsold LWP Advertising Inventory
available to LWP, then each of the parties shall have the right to use fifty
percent (50%) of such unsold LWP Advertising Inventory to advertise any of such
party's Web site(s) or other products or services or its designees which are not
Other Networks or Chat Competitors. Any Gross Revenue attributable to the sale
of LWP Advertising Inventory which is received by the selling party shall be
divided between the parties with the relevant selling party receiving sixty-
five percent (65%) thereof and the non-selling party receiving the remaining
thirty-five percent (35%) thereof.
3.3 Ad Sales Guidelines. If NBC makes any NBC Advertising Inventory
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available to LWP pursuant to the terms of Section 3.1, then LWP will (i) not
permit advertising or sponsorships to be purchased by any party specifically for
placement within the NBC/Talk City
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Areas, (ii) comply with any and all relevant NBC advertising standards,
including any amendments thereto, of which LWP is made aware by NBC, and (iii)
not permit any such advertising to refer to, or imply an endorsement of any kind
by, any guest appearing on a particular Chat or the NBC Program on which such
guest appears. In addition, all such advertising appearing in NBC/Talk City
Areas will comply with any applicable NBC guidelines regarding the use of
intellectual property related to any NBC television show or the Chat guests'
names, likenesses and images and any other requirement related thereto of which
LWP is informed by NBC. LWP agrees that the NBC/Talk City Areas will not contain
any advertising of any Other Networks, and NBC agrees that the NBC/Talk City
Areas will not contain any advertising of any Chat Competitors.
3.4 Transaction Revenues. LWP shall pay NBC seven and one-half
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percent (7.5%) of all gross revenues which it receives in connection with
transactions in the "Talk City Store" area of the Talk City Service which are
attributable to End Users which entered the Talk City Service from NBC/Talk City
Areas. In addition, LWP shall pay NBC fifty percent (50%) of the gross revenues
which it receives from third parties in connection with transactions between
such third parties and End Users which entered the Talk City Service from the
NBC/Talk City Areas. Finally, NBC agrees that if it, in its sole discretion,
chooses to link to or offer transaction services within the NBC/Talk City Areas,
then NBC and LWP shall mutually agree upon how the parties will share any
revenue attributable thereto before such services are linked to or offered
within the NBC/Talk City Areas.
3.5 Future Revenue. The parties agree that if any future revenue
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generating opportunities not described above are created in connection with the
Talk City Service or the NBC/Talk City Areas, the parties will negotiate in good
faith regarding what revenue sharing arrangements between the parties would be
appropriate, provided that, unless such opportunities involve characteristics
which would make them materially different from the opportunities described
above, it is the intent of the parties to share such revenues in a manner
similar to that described above.
3.6 Excluded Revenue. At no time shall NBC be entitled to any
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revenue received by LWP in connection with infochats, user add-ons (Chat @ Talk
City), market research, custom community programming, or other corporate
services which do not relate to the NBC/Talk City Areas.
4. Payments and Audit Rights.
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4.1 Payments to NBC. At the end of each quarter in which LWP
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actually receives payments of revenues from the sale of NBC Advertising
Inventory or LWP Advertising Inventory of the type described in Sections 3.1 and
3.2 or transactional revenue of the type described in Section 3.4, if any, LWP
shall prepare a quarterly statement providing sufficient detail regarding the
source of such revenues and will deliver such statement along with the required
payment described therein to NBC no less than forty-five (45) days following
such date.
4.2 Payments to LWP. At the end of each quarter in which NBC
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actually receives payments of revenues from the sale of NBC Advertising
Inventory or LWP Advertising Inventory of
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the type described in Sections 3.1 and 3.2 or transactional revenue of the type
described in Section 3.4, if any, NBC shall prepare a quarterly statement
providing sufficient detail regarding the source of such revenues and will
deliver such statement along with the required payment described therein to LWP
no less than forty-five (45) days following such date.
4.3 Audit Rights. NBC and LWP shall mutually agree upon the
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measurement methods and calculations required to determine whether a revenue or
an expense is applicable to advertising or sponsorships applicable to the
NBC/Talk City Areas. Both parties shall have the right, upon reasonable written
notice to inspect, or have its agent inspect, the other party's books and
records and all other documents and material in the possession of or under its
control with respect to all amounts described in Sections 2.4 and 3 at the place
or places where such records are normally retained by the other party. Both
parties or its agent shall have free and full access thereto during normal
business hours for such purposes and shall be permitted to be able to make
copies thereof and extracts therefrom. In the event that such inspection
reveals a discrepancy in the amount of any payments owed to the other party from
what was actually paid, the other party shall pay such discrepancy. In the
event that such discrepancy is in excess of ten percent (10%) of the payments
due for the period audited, the party shall also reimburse the other party for
the reasonable costs of performing the audit. All books and records relative to
either party's obligations hereunder shall be maintained and kept accessible and
available to the other party for inspection for at least two (2) years after
termination of this Agreement.
5. Equity.
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5.1 Grant of Equity. In consideration of the foregoing and upon
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signature hereof, LWP will issue 1,000,000 shares of its Series D Preferred
Stock (the "Stock") and fully vested warrants for shares of Stock, each with a
term of five (5) years, to purchase (i) an additional 111,111 shares of Stock at
an exercise price of $3.00 per share (the "First Warrant"), (ii) an additional
83,333 shares of Stock with an exercise price of $4.00 per share (the "Second
Warrant") and (iii) an additional 66,667 shares of Stock with an exercise price
of $5.00 per share (the "Third Warrant" and, collectively with the First Warrant
and the Second Warrant, the "Warrants") to NBC pursuant to the terms hereof.
5.2 Stock and Warrant Terms. LWP shall issue the Stock, pursuant to
-----------------------
Section 5.1 to NBC upon the terms and conditions and pursuant to long-form
agreements regarding the issuance, sale and purchase of the Stock (a "Stock
Purchase Agreement") and regarding certain rights related to the ownership of
such Stock (an "Amended and Restated Shareholders Rights Agreement") to be
negotiated in good faith between the parties hereto. In addition, LWP shall
issue the Warrant (or the Replacement Stock and Warrants), pursuant to Section
5.1, to NBC upon the terms and conditions and pursuant to long-form agreements
regarding the characteristics, issuance, sale and purchase of the Stock and
Warrants (or the Replacement Stock and Warrants) (in either case, a "Formal
Warrant" and a "Warrant Purchase Agreement") to be negotiated in good faith
between the parties hereto. The terms and conditions of the Stock Purchase
Agreement and the Amended and Restated Shareholders Rights Agreement, including
any and all terms, representations and warranties, shall be substantially
similar to those contained in the Series C Preferred Stock Purchase Agreement
between the National
-10-
Broadcasting Company, Inc. and LWP dated April 22, 1998 (the "First Stock
Purchase Agreement") and the Amended and Restated Shareholders Rights Agreement
dated April 6, 1998 (the "First Amended and Restated Shareholders Rights
Agreement"); provided that, the rights granted to NBC thereunder, including
--------
price protection and registration rights, shall be no less favorable than those
provided to any other purchaser of Series D Preferred Stock, including, without
limitation, the purchase price per share for Series D Preferred Stock. Subject
to the terms and conditions of this Agreement, the terms and conditions of the
Formal Warrant and the Warrant Purchase Agreement, including all terms,
representations and warranties, shall be substantially similar to those
contained in the Formal Warrant issued by LWP to NBC on April 22, 1998 (the
"First Formal Warrant"), excluding Sections 4(d) and 4(e) thereof, and the
Warrant Purchase Agreement between LWP and NBC dated April 22, 1998 (the "First
Warrant Purchase Agreement"); provided that, the rights granted to NBC
--------
thereunder, including price protection and registration rights, shall be no less
favorable than those provided to any other purchaser of Series D Preferred
Stock. If the parties have not agreed upon the final form of the Stock Purchase
Agreement, the Amended and Restated Shareholders Rights Agreement, the Formal
Warrant and the Warrant Purchase Agreement (collectively, the "Equity
Agreements") within thirty (30) days following the Effective Date hereof, then
the parties shall be required to negotiate in good faith regarding the terms of
such agreements for an additional ten (10) business days. If, after such ten
(10) day period, the parties are unable to agree upon the terms of the Equity
Agreements, then NBC shall have the option, which may be exercised in its sole
discretion, of immediately terminating this Agreement by providing LWP with
written notice of its decision.
6. Approvals. LWP acknowledges that all material created or used by LWP
---------
pursuant to the terms hereof, other than any material which NBC and its Related
Entities provide, including in conjunction with the NBC-Specific Areas, other
than the End User/NBC Themed Areas, will be subject to NBC's prior written
approval; provided, however, that once NBC approves the form of any such
material, LWP shall not be required to obtain any additional approvals from NBC
if End User demands combined with technological constraints cause LWP to create
additional identical NBC/Talk City Areas (e.g., if End User demand causes LWP to
create additional Chat rooms within the Talk City Service). In addition, LWP
will obtain NBC's prior written approval of any material which LWP places in the
End User/NBC Themed Areas if feasible and practicable. Finally, as long as it
complies with the terms of Section 3.3, LWP will be required to obtain NBC's
prior written approval of any advertising or promotions which appear in the
NBC/Talk City Areas if feasible and practicable, provided that NBC will have the
right to require LWP to remove any such advertising or promotions appearing in
the NBC/Talk City Areas to which NBC reasonably objects. Any request for such
approvals made by LWP may be approved or rejected by NBC in its sole discretion.
In the case of advertising or promotions to be placed in the NBC/Talk City Areas
which NBC permits LWP to sell and for which LWP requests approval, NBC must make
its decision within two (2) business days of NBC's receipt of the request from
LWP, and if NBC neither approves nor rejects such advertising or promotion
within such time period, then LWP shall have the right to place it within the
NBC/Talk City Areas until such time as NBC affirmatively requests that LWP
remove it therefrom.
-11-
7. Preferred Carriage and Most Favored Treatment. NBC agrees that the
---------------------------------------------
Talk City Service shall be the Preferred provider of online chat services on the
NBC Service, and LWP agrees that the NBC Service shall be the Preferred online
service amongst all of the online services offered by national or regional
broadcast television networks associated with the Talk City Service provided,
however, that NBC will be given equal treatment with the online services of
other Purchasers (as defined below). In addition, LWP agrees that if any
purchaser of LWP's Series D Preferred Stock (a "Purchaser") has entered into, or
enters into in the future, any agreement with LWP which grants such Purchaser
either (i) more favorable financial terms, (ii) more favorable carriage,
distribution, placement or promotion of such Purchaser's online service or
content, or (iii) more favorable overall terms, than those granted to NBC
herein, then LWP shall notify NBC of the terms of such agreement and if
requested by NBC, this Agreement with NBC shall be adjusted to match such more
favorable arrangements effective as of date of such agreement with the
Purchaser.
8. Term and Termination.
--------------------
8.1 Term. The term of this Agreement shall be three (3) years from
----
the Effective Date of this Agreement ("Initial Term"). This Agreement shall be
automatically extended for an additional two year period (a "Renewal Term") upon
the completion of the Initial Term or any Renewal Term unless either party
notifies the other in writing of its election to have the Agreement expire at
least sixty (60) days in advance of the end of the Initial Term.
8.2 Early Termination for Breach or Change of Control. This
-------------------------------------------------
Agreement may be terminated by either party (i) immediately upon written notice
if the other party (A) becomes insolvent; (B) files a petition in bankruptcy; or
(C) makes an assignment for the benefit of its creditors or (ii) thirty (30)
days after written notice to the other party of such other party's breach of any
of its material obligations under this Agreement in any material respect, which
breach is not remedied within such 30-day period or (iii) upon thirty (30) days'
prior written notice to NBC, if NBC unreasonably fails to provide the
promotional consideration described in Section 2.9 on a reasonably consistent
basis which such failure is not remedied within such 30-day period. In
addition, NBC may terminate this Agreement upon thirty (30) days' prior written
notice, if a majority of LWP's equity, or substantially all of the assets, of
LWP are sold to any other party.
8.3 Early Termination for Convenience. At any time following the
---------------------------------
first year of the Initial Term, either party can terminate this Agreement at any
time and for any reason with sixty (60) days' prior written notice.
8.4 Effect of Early Termination on Warrants.
---------------------------------------
(i) In the event that LWP terminates pursuant to the terms of
Section 8.2 prior to the end of the first year of the Initial Term, NBC shall
forfeit the right to purchase the number of shares of Stock which is equal to
fifty percent (50%) of the number of shares which NBC would otherwise have been
entitled to purchase pursuant to the terms of the Warrants received in
connection with this Agreement as of the date of such termination (i.e., 50% of
the number of shares not purchased by NBC as of such date), but subject to the
foregoing, NBC shall have the right to determine which, and what portion, of the
individual Warrants will be affected by such forfeiture.
-12-
(ii) In the event that NBC terminates this Agreement pursuant
to the terms of Section 8.3 or LWP terminates pursuant to the terms of Section
8.2 after the end of the first year but prior to the end of the Initial Term.
NBC shall forfeit the right to purchase the number of shares of Stock which is
equal to twenty-five percent (25%) of the number of shares which NBC would
otherwise have been entitled to purchase pursuant to the terms of the Warrants
received in connection with this Agreement as of the date of such termination
(i.e., 25% of the number of shares not purchased by NBC as of such date), but
subject to the foregoing, NBC shall have the right to determine which, and what
portion, of the individual Warrants will be affected by such forfeiture.
(iii) If NBC terminates this Agreement pursuant to the terms of
Section 8.2, then NBC shall not forfeit any of its rights to purchase Stock
covered by the Warrants received in connection with this Agreement regardless of
the date of such termination.
9. Representations and Warranties
------------------------------
9.1 LWP. LWP represents and warrants to NBC that (i) it has the
---
right and power to perform its obligations and to grant the rights granted
herein, (ii) LWP's creation and operation of the NBC/Talk City Areas and the
Talk City Service pursuant to this Agreement will not violate any agreement or
obligation between LWP and a third party or any laws or regulations and (iii)
except for material provided by NBC and its licensors, suppliers or agents
pursuant to the terms hereof, the content included on the NBC/Talk City Areas
and the Talk City Service and the operation of the NBC/Talk City Areas and the
Talk City Service by LWP as contemplated herein will be accurate and correct,
will not violate or infringe any third party rights, including intellectual
property rights and will not adversely affect the operation of the NBC Service
in a material manner.
9.2 NBC. NBC represents and warrants to LWP that it has the right
---
and power to perform its obligations and to grant the rights granted herein and
that the material provided by NBC to LWP for inclusion on the NBC/Talk City
Areas, which NBC has approved for use as contemplated herein, will be accurate
and correct and will not violate or infringe any third party rights, including
intellectual property rights.
10. Indemnities.
-----------
10.1 LWP. LWP agrees to indemnify and hold harmless, NBC against,
---
and from, any and all claims, liability, loss and damage (whether actual,
compensatory, special, punitive or however characterized), including reasonable
attorney's fees from counsel of NBC's choosing, caused by, arising out of or
related to (i) LWP's operation and management of the NBC/Talk City Areas and the
Talk City Service or (ii) any breach of LWP's representations and/or warranties
set forth in this agreement.
10.2 NBC. NBC agrees to indemnify and hold harmless, LWP against,
---
and from, any and all claims, liability, loss and damage (whether actual,
compensatory, special, punitive or however characterized), including reasonable
attorney's fees from counsel of LWP's choosing, caused by, arising out of or
related to (i) any breach of NBC's representations and/or warranties set forth
in this agreement or (ii) any broken, maliciously altered or misdirected link to
the Talk City
-13-
Service or the NBC/Talk City Areas on the NBC Service for which NBC is
responsible or which NBC could reasonably have prevented.
10.3 Control of Litigation. The indemnitor hereunder shall have full
---------------------
control of the defense of such litigation and may settle, compromise or adjust
the same, provided, however, that the indemnitee, upon relieving the indemnitor
in writing of the obligations imposed hereunder for defense and indemnification,
shall have the right, if it so elects, to conduct such litigation at its own
expense by its own counsel.
10.4 Notice and Duration. The above obligations for defense and
-------------------
indemnification shall be imposed only if: (1) the indemnitee sends to the
indemnitor timely written notice of first service of process upon the indemnitee
and a timely written request to defend the litigation (such notice and request
shall be deemed timely if given within a reasonable length of time after receipt
of service by the indemnitee and a reasonable length of time prior to the date
by which first response to such process is legally required, considering all the
circumstances); (2) while such litigation is pending, the indemnitee upon
request, shall furnish to the indemnitor all relevant facts and documentary
material in the former's possession or under its control, and shall make its
employees or other persons under its control with knowledge of relevant facts
available to the indemnitor for consultation and as witnesses at their customary
places of business; and (3) the indemnitee does not enter into any settlement
relating to any claim for which it requests indemnification hereunder without
the approval of the indemnitor.
11. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
-----------------------
FOR ANY LOSS OF PROSPECTIVE PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES BY REASON OF ANY FAILURE BY SUCH PARTY TO PERFORM ITS
OBLIGATIONS PURSUANT TO THIS AGREEMENT.
12. General Provisions.
------------------
12.1 Force Majeure. Neither party shall be liable for, or be
-------------
considered in breach of or default under this Agreement on account of, any delay
or failure to perform as required by this Agreement as a result of any causes or
conditions which are beyond such party's reasonable control and which such party
is unable to overcome by the exercise of reasonable diligence. Notwithstanding
the foregoing, either party may terminate this Agreement upon written notice to
the other party in the event such failure to perform continues unremedied for a
period of thirty (30) days in the aggregate.
12.2 Independent Contractors. The parties to this Agreement are
-----------------------
independent contractors. Neither party is an agent, representative, or partner
of the other party. Neither party shall have any right, power of authority to
enter into any agreement for or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other party. This Agreement shall not
be interpreted or construed to create an association, joint venture or
partnership between the parties or to impose any partnership obligation or
liability upon either party.
-14-
12.3 Survival. Sections 1, 2.6, 2.8, 2.10, 4.3. 5, 8, 9, 10, 11, and
--------
12 shall survive the completion, expiration, termination or cancellation of this
Agreement.
12.4 Waiver. The failure of either party to insist upon or enforce
------
strict performance by the other party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
12.5 Entire Agreement. This Agreement together sets forth the entire
----------------
agreement, and supersedes any and all prior agreements of the parties with
respect to the transactions related to the NBC Service set forth herein,
including the NBC-Talk City Chat Agreement between the parties dated February
25, 1998 which is hereby deemed to have terminated as of the Effective Date
hereof.
12.6 Amendment. No change, amendment or modification of any
---------
provision of this Agreement shall be valid unless set forth in a written
instrument signed by the party to be bound thereby.
12.7 Assignment. LWP shall not assign this Agreement or any right,
----------
interest or benefit under this Agreement without the prior written consent of
NBC. No consent shall be unreasonably withheld. LWP acknowledges that NBC
shall have the right to freely assign or transfer, in whole or in part, any of
its rights, interests, benefits or obligations hereunder, including the
Agreement itself, to any party in its sole discretion. Subject to the
foregoing, this Agreement shall be fully binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns.
12.8 Partial Invalidity. In the event that any provision of this
------------------
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
parties to this Agreement, such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the parties in
accordance with applicable law, and the remainder of this Agreement shall remain
in full force and effect.
12.9 Confidentiality. Each party hereto agrees to hold the terms and
---------------
conditions of this Agreement and all information and material provided by the
other party hereunder and identified at the time of disclosure as confidential
to such party (the "Confidential Information") in confidence during the term of
this Agreement and for three (3) years thereafter. "Confidential Information"
shall not include information that: (i) is or becomes generally known or
available, whether by publication, commercial use or otherwise, without
restriction on disclosure and through no fault of the receiving party; (ii) is
known by the receiving party prior to the time of disclosure; (iii) is
independently developed or learned by the receiving party without reference to
any Confidential Information of the disclosing party; (iv) is lawfully obtained
from a third party that the receiving party reasonably believes has the right to
make such disclosure. The other provisions of this Agreement notwithstanding,
either party will be permitted to disclose the terms and conditions of this
Agreement to their outside legal and financial advisors and to the extent
required by applicable law; provided, however, that before making any such
required filing or disclosure, the disclosing
-15-
party shall first give written notice of the intended disclosure to the other
party, within a reasonable time prior to the time when disclosure is to be made,
and the disclosing party will exercise best efforts, in cooperation with the
other party, consistent with reasonable time constraints, to obtain confidential
treatment for all non-public and sensitive provisions of this Agreement,
including without limitation dollar amounts and other numerical information.
12.10 Applicable Law; Jurisdiction. This Agreement shall be
----------------------------
interpreted, construed and enforced in all respects in accordance with the laws
of the State of New York without reference to conflict of law principles.
-16-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
LIVE WORLD PRODUCTIONS NBC MULTIMEDIA, INC.
By: ______________________________ By: /s/ Xxxxxxxxxxx Glowacks
-------------------------------------
Print Name:_______________________ Print Name: XXXXXXXXXXX GLOWACKS
-----------------------------
Title:____________________________ Title: VP
----------------------------------
Date:_____________________________ Date: 8/21/98
-----------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LIVE WORLD PRODUCTIONS NBC MULTIMEDIA. INC.
By: /s/ Xxxxx X Xxxxxxxx By:_____________________________________
--------------------------------
Print Name: XXXXX X. XXXXXXXX Print Name:_____________________________
------------------------
Title: CEO Title:__________________________________
-----------------------------
Date: August 18, 1998 Date:___________________________________
------------------------------
AMENDMENT TO THE
NBC -TALK CITY CHAT SERVICES AGREEMENT
THIS AMENDMENT AGREEMENT (the "Agreement") is made as of April 19, 1999 by
and among Talk City, Inc., a California corporation (fka LiveWorld Productions,
Inc.) (the "Company") and NBC Multimedia, Inc., a Delaware corporation
("Multimedia").
RECITALS
A. All terms not defined in this Agreement will have the meanings given
to them in the Operating Agreement (as defined below).
B. The Company and Multimedia are party to that certain NBC - Talk City
Chat Services Agreement, dated August 21, 1998 (the "Operating Agreement"),
pursuant to which the Company issued to Multimedia 1,000,000 shares of its
Series D Preferred Stock (the "Shares") and a warrant to purchase 261,111 shares
of its Series D Preferred Stock (the "Warrant").
C. The Company, Multimedia and National Broadcasting Company, Inc.
("NBC") are entering into, as of the date hereof, additional amendments to
various agreements between the parties, including without limitation an
amendment to the Letter Agreement, dated August 21, 1998, between the Company
and NBC pursuant to which NBC has agreed to accelerate the telecast of
advertising spots regarding the Company according to a schedule attached to such
amendment.
D. The Company and Multimedia desire to amend the Operating Agreement to
delete the forfeiture provisions contained in Section 8.4 of the Operating
Agreement.
E. Section 12.6 of the Operating Agreement provides that the Operating
Agreement may be amended by a written instrument signed by the party to be bound
thereby.
AGREEMENT
Now, therefore, the parties agree as follows:
1. AMENDMENTS.
----------
(a) Section 8.4 of the Operating Agreement is deleted in its entirety.
2. MISCELLANEOUS.
-------------
(a) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of New York without regard to New
York conflicts law.
(b) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one instrument.
(c) Titles and Subtitles. The titles and subtitles used in this Agreement
--------------------
are used for convenience only and are not considered in construing or
interpreting this Agreement.
(d) Full Force and Effect. Except as specifically amended hereby, the
---------------------
Operating Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects.
-2-
This Agreement is executed as of the date first written above.
NBC MULTIMEDIA, INC. TALK CITY, INC.
/s/ [SIGNATURE ILLEGIBLE] /s/ Xxxxx X. Xxxxxxxx
------------------------------ __________________________
By: __________________________ By: Xxxxx X. Xxxxxxxx
Title: _______________________ Title: President and Chief
Financial Officer
-3-
NBC Multimedia, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 19, 1999
Talk City, Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Talk City/XXXX.xxx
------------------
Ladies and Gentlemen:
Reference is made to the NBC-Talk City Chat Services Agreement, dated as of
August 21, 1998 (the "Agreement"), between Live World Productions ("Talk City")
---------
and NBC. Multimedia, Inc. ("NBC"). Capitalized terms used but not otherwise
---
defined herein shall have the meanings assigned to such terms in the Agreement.
This letter amendment (this "Amendment") will confirm our understanding and
---------
agreement with regard to certain amendments to the Agreement.
1. Application to XXXX.xxx Pursuant to Section 1.10 of the Agreement,
-----------------------
NBC is hereby exercising its right to create additional and separate NBC/Talk
City Areas relating to its XXXX.xxx web site, thus creating an Additional
NBC/Talk City Area. As a result, XXXX.xxx shall be deemed to be an NBC Service
for all purposes of the Agreement. For purposes of clarity, the proviso to the
last sentence of Section 1.10 shall not apply to XXXX.xxx.
2. Advertising Sales. CNBC shall have sole responsibility for selling
-----------------
advertising to appear in the CNBC/Talk City Areas. If within the first ninety
(90) days from the availability of the CNBC/Talk City Areas CNBC is not able to
sell a minimum of eighty-five percent (85%) of the advertising at industry
competitive rates, then the parties agree to negotiate in good faith regarding
responsibility for such advertising sales.
3. Effect of Amendment. Except as and to the extent modified by this
-------------------
Amendment, the Agreement shall remain in full force and effect in all respects.
4. Governing Law. This Amendment shall be governed by, and construed in
-------------
accordance with, the laws of the State of New York.
5. Counterparts. This Amendment may be executed and delivered (including
------------
by facsimile transmission) in one or more counterparts, and by the parties
hereto in separate
1
counterparts, each of which when executed and delivered shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
If the foregoing accurately sets forth your understanding of our agreement,
please so indicate by countersigning this Amendment, whereupon this Amendment
shall become a binding agreement between us and shall amend the Agreement as
provided herein.
Very truly yours,
NBC MULTIMEDIA, INC.
By: /s/ Signature Illegible
Name:
Title:
Agreed and accepted as of
the date first written above:
TALK CITY, INC.
By: /s/ Signature Illegible
Name:
Title:
2
