Exhibit 11
LIST RENTAL AGREEMENT
This list rental agreement (the "Agreement") is entered into on this 6th day of
December 2000 by and between PRIMEDIA Magazines Inc. ("PRIMEDIA") and Xxxxx.xxx,
Inc. ("About") with respect to use of the PRIMEDIA consumer and special
interest magazine mailing list owned by PRIMEDIA (the "Mailing List"),
pursuant to the terms and conditions hereinafter set forth.
1. About expressly acknowledges that the Mailing List shall be strictly
limited to no more than three uses, solely and exclusively for
mailings of mailing pieces promoting About (the "Mailing Pieces").
The content of the Mailing Pieces shall be adhere to the same
content standards as advertisements which appear in Seventeen
Magazine and shall be subject to PRIMEDIA's advance approval which
shall not be unreasonably withheld. PRIMEDIA shall deliver the
Mailing List to About no later than December 29, 2000. Upon such
delivery, About shall immediately acknowledge receipt and acceptance
of the Mailing List in writing. About agrees and acknowledges that
upon such delivery, PRIMEDIA's obligations relating to the Mailing
List are fully satisfied.
2. In consideration of the use of the Mailing List, About shall issue
to PRIMEDIA 120,987 shares of common stock of About, par value $.001
per share on the date hereof with an aggregate value equal to
$2,450,000 (the "Common Stock"). The Common Stock shall be issued to
PRIMEDIA promptly upon of the execution of this Agreement. The
Common Stock shall be duly authorized, validly issued and
non-assessable. Within five (5) business days of the date of this
Agreement, About shall execute a customary registration rights
agreement in a form reasonably satisfactory to About and PRIMEDIA
providing PRIMEDIA with piggyback rights for the Vested Portion of
the Common Stock (including standard cut-backs) except in respect of
registration on Form S-8 or registrations for issuing stock in the
context of an acquisition.
3. About hereby unconditionally promises, agrees, represents and
warrants that as a condition to the use of the Mailing List it will
not (i) disclose, transfer, duplicate, reproduce or retain in any
form or manner whatsoever the Mailing List or any part thereof or
permit any third party, agent, employee or contractor of their
respective agents or employees to do any of the foregoing,
regardless of whether the Mailing List takes the form of printed
labels, magnetic tape or otherwise; (ii) disclose the identity of
PRIMEDIA as the list owner or the derivation or source of the
Mailing List to any third party; (iii) use the Mailing List as a
basis for a phone or e-mail solicitation; (iv) use the Mailing List
in connection with "free offers" or for any other offer in which a
negative response is requested or solicited. About shall erase the
Mailing List from all storage devices upon which it is stored
immediately upon processing its mailing.
4. About acknowledges that the Mailing List is the property of
PRIMEDIA.
5. About acknowledges that the Mailing List has and will continue to be
monitored to prevent unauthorized use thereof, by a combination of
one or more methods of computer control and or planted and/or varied
names and addresses. About hereby consents to such controls.
6. PRIMEDIA makes no warranty or representation of any nature regarding
(i) the accuracy of the Mailing List's names and addresses; (ii) the
results to be obtained from the use of the Mailing List or (iii) the
number of mail pieces which are actually deliverable based on the
information contained in the Mailing List.
7. About agrees to indemnify and hold harmless PRIMEDIA from any and
all claims, damages, liabilities, expenses, including but not
limited to attorney fees and expenses, however incurred, relating to
the use of the Mailing List by About or its agents contrary to the
provisions of this Agreement.
8. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. No provision of this Agreement may be amended or modified except by
an instrument or instruments in writing signed by the parties
hereto. Any party may waive compliance by another with any of the
provisions of this Agreement. No waiver of any provision hereof
shall be construed as a waiver of any other provision or subsequent
breach. Any waiver must be in writing. The failure of any party
hereto to enforce at any time any provision hereof shall not be
construed to be a waiver of such provision, nor in any way to affect
the validity hereof or any part hereof or the right of any party
thereafter to enforce each and every such provision.
10. If any provision of this Agreement is held by any court of competent
jurisdiction to be illegal, invalid or unenforceable, such provision
shall be of no force and effect, but the illegality, invalidity or
unenforceability shall have no effect upon and shall not impair the
enforceability of any other provision of this Agreement.
11. None of the parties hereto may assign any of its rights or delegate
any of its duties under this Agreement without the prior written
consent of the others. All of the terms and provisions of this
Agreement shall be binding on, and shall inure to the benefit of,
the respective successors and permitted assigns of the parties.
12. The representations, warranties, covenants and agreements contained
in this Agreement are for the sole benefit of the parties hereto and
their respective successors and permitted assigns and they shall not
be construed as conferring and are not intended to confer any rights
on any other persons.
13. This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, and each party thereto may
become a party hereto by executing a counterpart hereof. This
Agreement and any counterpart so executed shall be deemed to be one
and the same instrument. The exchange (by facsimile) of facsimile
copies of executed counterparts of this Agreement shall be deemed
execution and delivery thereof, provided that receipt of such
facsimile is confirmed in writing. Original copies shall follow by
documented overnight delivery.
14. The parties hereto agree that in interpreting this Agreement there
shall be no inference against the drafting party.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
Xxxxx.xxx, Inc.
/s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Chief Financial Officer
PRIMEDIA Inc.
/s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
