Exhibit 10.39
Omitted information, for which "x" characters have been substituted herein,
has been omitted pursuant to a request for confidential treatment and such
information has been filed separately with the office of the Secretary of the
Securities and Exchange Commission.
NBC/▇▇▇▇.▇▇▇
AGREEMENT
This Agreement, dated as of February 8, 1998, is made and entered into between
▇▇▇▇.▇▇▇, Inc. ("▇▇▇▇.▇▇▇") and NBC Multimedia, Inc. ("NBC"). NBC and ▇▇▇▇.▇▇▇
agree that this Agreement will serve as the binding agreement of the parties
with respect to the matters herein set forth, and the parties hereto will use
their good faith efforts to complete the issuance of the Common Stock (defined
in Section 4.2 below). This Agreement supercedes any prior Agreement and
understanding between the parties.
The following sets forth the general terms and conditions of the proposed
arrangement:
1. ▇▇▇.▇▇▇
a) FREE E-MAIL PROVIDER: ▇▇▇▇.▇▇▇ will be the provider of a free e-mail
("NBC email") service for NBC's ▇▇▇.▇▇▇ world wide web site and,
subject to the approval of ▇▇▇▇.▇▇▇ (which may be withheld in the sole
discretion of ▇▇▇▇.▇▇▇), any other world wide web site operated or
controlled by NBC on which NBC chooses, in its sole discretion, to
place such services (collectively, "▇▇▇.▇▇▇").
b) INCLUSION OF ▇▇▇▇.▇▇▇ ON ▇▇▇.▇▇▇. The NBC email service will be located
on an independent world wide web site which will be created, maintained
and operated by ▇▇▇▇.▇▇▇ pursuant to the terms hereof. The base URL for
the location of such NBC email service shall be ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇
and may include other tags such that the appropriate NBC branding can
be displayed. The URL shall direct users to servers operated and
maintained by ▇▇▇▇.▇▇▇ during the term of the agreement for such
purposes but users shall have the ability to link back to ▇▇▇.▇▇▇. The
site containing such NBC-branded services will be accessible through
both (i) above the fold links (i.e., on the first screen visible to
users) on the ▇▇▇.▇▇▇ home page for the first year of the ▇▇▇.▇▇▇
Agreement and anywhere on the ▇▇▇.▇▇▇ home page thereafter (e.g., it
may be placed below the fold on the home page) and (ii) links (above
the fold for the first year of the ▇▇▇.▇▇▇ Agreement) on the home page
of any ▇▇▇.▇▇▇ entertainment show sub-sites on which NBC chooses, in
its sole discretion, to include the NBC e-mail service, and which is
acceptable to ▇▇▇▇.▇▇▇
c) BRANDING. The site containing the NBC email service shall be branded
similar to Snap's ▇▇▇▇▇.▇▇▇ branding but shall also include a specific
NBC branded logo provided by NBC at NBC's sole discretion which shall
be linked back to the NBC site . The homepage of ▇▇▇.▇▇▇ will have a
"free email" button viewable in a 640 by 480 browser window, and
▇▇▇.▇▇▇ shall also include free email as part of the navigation bar of
the site where appropriate. Upon clicking the free email link a user
will be sent to page with the branding of "NBC email by ▇▇▇▇▇.▇▇▇". An
"▇▇▇▇▇.▇▇▇" logo mention will occur at the bottom of each page of the
NBC branded email site. The usage of the NBC email service provided by
▇▇▇▇.▇▇▇ will be tracked by ▇▇▇▇.▇▇▇ for record keeping purposes and
such records will be made available to NBC upon its reasonable request.
▇▇▇▇.▇▇▇ will provide NBC with a quarterly report of such usage which
report will contain data in the form reasonably agreed upon by the
parties. In addition, ▇▇▇▇.▇▇▇ will provide any other data and
statistics regarding usage and users of the NBC branded email area of
▇▇▇▇.▇▇▇ which NBC reasonably requests from time to time, provided,
that NBC will make commercially reasonable efforts to make no more than
one such additional request for information per month. NBC also agrees
that at a minimum ▇▇▇▇.▇▇▇ will receive comparable or better branding
than other NBC partners providing comparable business terms.
d) GENERAL FEATURES: The NBC email service shall have have comparable
features that ▇▇▇▇.▇▇▇ makes makes available to any other ▇▇▇▇.▇▇▇
customer or user from a comparable ▇▇▇▇.▇▇▇ partner, unless otherwise
agreed by ▇▇▇▇.▇▇▇ and NBC. NBC shall have final approval of all
aspects of the NBC email service.
e) UNIVERSAL REGISTRATION: In order to offer a universal service among all
NBC affiliated groups including, ▇▇▇.▇▇▇, NBC-IN, NBC/Snap, all users
that sign up through ▇▇▇.▇▇▇ email or NBC-IN email will be
automatically registered for services at NBC/Snap. To provide this
level of functionality, ▇▇▇▇.▇▇▇ will control
1
the full email service except the first step of signup which will be
branded exactly the same as the rest of the ▇▇▇.▇▇▇ site but will be
hosted on NBC/Snap's server. Full universal registration includes the
ability for NBC to add "you have mail" icons on the NBC page to
indicate that an ▇▇▇.▇▇▇ User has received an email that they have not
yet moved from their mailbox into the web client or retrieved with
their POP client.
f) USAGE CONDITIONS: Use of the NBC email service by users of the ▇▇▇.▇▇▇
site shall be subject to ▇▇▇▇.▇▇▇'s standard terms and conditions for
other ▇▇▇▇.▇▇▇ users, which terms and conditions shall be accessible by
hyperlink from one or more Email Pages and NBC's general standard terms
and conditions for ▇▇▇.▇▇▇ as well as any terms and conditions for use
of the NBC email which NBC may develop from time to time. The parties
agree that ▇▇▇▇.▇▇▇ will be responsible for affirmatively responding to
any complaints from NBC or elsewhere that a user is not in compliance
with all such terms and conditions, but NBC may, but shall not be
obligated to, respond to such a complaint and cause ▇▇▇▇.▇▇▇ to (i)
suspend any particular user's NBC email usage.
g) CUSTOMER SERVICE: ▇▇▇▇.▇▇▇ shall include an email link on one or more
of the Email Pages to ▇▇▇▇.▇▇▇'s customer service staff. ▇▇▇▇.▇▇▇ shall
use reasonable commercial efforts to respond to all customer service
inquiries promptly after receipt.
h) OPERATIONS, OWNERSHIP AND EXPLOITATION:
(1) ▇▇▇▇.▇▇▇ will designate an ▇▇▇▇.▇▇▇ contact whose function
will be to act as the ▇▇▇▇.▇▇▇ liaison with a member of NBC's
production team to be designated by NBC. The ▇▇▇▇.▇▇▇ liaison
will work with the NBC liaison to coordinate the production,
orchestration and hosting of the NBC e-mail service requested
by NBC hereunder.
(2) Except for the right to operate the NBC email site as
described herein, ▇▇▇▇.▇▇▇ will have no rights of any kind,
including intellectual property rights, in (i) any material,
including any text, graphics, audio, video, photos or
software, provided to ▇▇▇▇.▇▇▇, or primarily created, by NBC
or its affiliates, licensers or suppliers (the "NBC Material")
or (ii) any material, including any text, graphics or story
ideas, concepts or characters, which is based upon, or derived
from, NBC Material (i.e., any "derivative" thereof).
(3) NBC acknowledges that ▇▇▇▇.▇▇▇ owns all title to and all
ownership rights to the underlying source code and object code
for the NBC email service. The NBC "look & feel" aspects of
the user interface of the NBC email site shall remain the sole
property of NBC. NBC shall retain all title to all other
aspects of the NBC email service that are created and/or
contributed by NBC that relate to the NBC "look and feel"
(e.g., the brand features) except any underlying source or
object code which is created and/or contributed by ▇▇▇▇.▇▇▇ in
order to utilize such NBC material for the purposes described
herein.
(i) REGISTRATIONS:
(1) PROCESS: All NBC email users who are 18 years of age or over
shall be required to register and to provide basic personal
information about themselves, including, at a minimum, name,
age, gender, email address and password themselves
("Registration Information"). ▇▇▇▇.▇▇▇ and NBC shall mutually
agree upon (i) all other aspects of the registration process
including how to handle users not 18 years or older and (ii)
whether any additional information will be requested from
users in connection therewith. ▇▇▇▇.▇▇▇ shall provide NBC, on
a quarterly basis, with updates which provide NBC with all
Registration Information collected by ▇▇▇▇.▇▇▇ during the past
quarter. All collection and use of any information from users
of the NBC email, whether through the registration process or
otherwise, shall be subject to a privacy policy to be mutually
agreed upon by NBC and ▇▇▇▇.▇▇▇ which privacy policy will, at
a minimum, inform users of how such Registration Information
may be used by the parties and will provide users with the
option of declining to receive any or all of the mailings or
other services offered by either party other than banner
advertising (the "Privacy Policy"). Each user shall be clearly
informed of the terms of the Privacy Policy during the
registration process. Neither
2
party may use any Registration Information in any manner that
is not strictly in compliance with the terms of the Privacy
Policy.
(2) OWNERSHIP OF REGISTRATION INFORMATION: NBC and ▇▇▇▇.▇▇▇ shall
jointly own all Registration Information and other information
collected from users in connection with the registration
process for the NBC email described herein. Subject to (i) the
strict compliance with the terms of the Privacy Policy
mutually agreed to by NBC and ▇▇▇▇.▇▇▇ described above,
▇▇▇▇.▇▇▇ shall be permitted to use such Registration
Information for the marketing and other purposes contemplated
by the ▇▇▇.▇▇▇ Agreement, provided that neither party shall
disclose or otherwise transfer the Registration Information,
other than in summary form if the Privacy Policy so permits,
to any third party which is not either an affiliate of or
controlled by such party. ▇▇▇▇.▇▇▇ will get prior written
approval from NBC for use of Registration Information outside
of what is contemplated by this Agreement
(j) ADVERTISING. Except as described below, ▇▇▇▇.▇▇▇ will be responsible
for selling all advertising on the site on which the NBC email service
is actually located. ▇▇▇▇.▇▇▇ will use best commercially reasonable
efforts to sell such advertising, and if any such inventory remains
unsold, then each party shall have the right to use one-third (1/3) of
such unsold inventory for its own purposes subject to the restrictions
described herein and the final one third (1/3) of such unsold inventory
shall be used to promote the NBC email service. NBC and ▇▇▇▇.▇▇▇ will
coordinate their advertising efforts so that they can avoid confusion
in the marketplace. ▇▇▇▇.▇▇▇ will (i) comply with all ▇▇▇▇.▇▇▇
advertising standards as well as any and all relevant NBC Advertising
Standards, including any amendments thereto, (ii) not act as a
representative for NBC or any NBC content or property in the
advertising marketplace, (iii) not sell advertising appearing on the
co-branded site to any of the "Excluded Companies" described in Exhibit
A hereto, and (iv) not permit any such advertising to refer to, or
imply an endorsement of any kind by, NBC or any of NBC's properties,
talent or licensers. In addition, all such advertising will comply with
any applicable NBC guidelines regarding the use of intellectual
property related to any NBC television show or its talent's likenesses
and images and any other requirement related thereto. Notwithstanding
the foregoing, if ▇▇▇▇.▇▇▇ has excess inventory and NBC brings an
advertiser to ▇▇▇▇.▇▇▇ which advertiser purchases advertising in
connection with the NBC email service, then ▇▇▇▇.▇▇▇ shall pay NBC a
selling commission of xx% of the gross advertising revenue that
▇▇▇▇.▇▇▇ collects in connection with such advertising; after NBC's
commission has been paid, ▇▇▇▇.▇▇▇ shall subtract an additional xxxx
percent (xx%) from such gross advertising revenues as its commission in
connection with creating, selling and fulfilling such advertising.
(k) DIRECT PROMOTION AND SPECIAL DELIVERY:
(1) DESCRIPTION. ▇▇▇▇.▇▇▇ has the ability to distribute (i)
promotional and other materials which are sent as email
messages directly to users' email folders ("Direct
Promotions") and (ii) special content that is delivered to
users' email boxes (e.g., newsletters) for those users that
elect to subscribe to such content ("Special Delivery
Services"). Any deliveries of Direct Promotions and Special
Delivery Services that ▇▇▇▇.▇▇▇ wishes to deliver to the users
of NBC email must be approved, in writing, in advance by NBC,
which will not be unreasonable withheld by NBC for any reason,
and must be conducted in compliance with the terms of the
Privacy Policy or ▇▇▇▇.▇▇▇ must communicate a customer support
or service message. ▇▇▇▇.▇▇▇ shall not (i) represent or imply
that any Direct Promotions or Special Delivery Services are
from NBC without NBC's prior approval or (ii) include any
content or promotion material from any of the Excluded
Companies in the Direct Promotions or Special Delivery
Services sent to the NBC email users. NBC acknowledges that
▇▇▇▇.▇▇▇ shall have the sole right to sell any advertising or
promotions related to the Direct Promotions and Special
Delivery Services which ▇▇▇▇.▇▇▇ delivers as described above.
Notwithstanding the foregoing, ▇▇▇▇.▇▇▇ acknowledges that NBC
may independently offer and sell its own direct promotions and
special content services (e.g., a NBC newsletter or MSNBC news
briefs) via email to the users of the NBC email service and
▇▇▇▇.▇▇▇ shall not share in any revenue collected in
connection therewith; provided, however, that in such
situations, ▇▇▇▇.▇▇▇ shall have no obligation to assist NBC in
such process in any way other than by removing any technical
restraints used by ▇▇▇▇.▇▇▇ which would prevent NBC from
conducting such activities (e.g., removing any "spam"
filters), unless NBC and ▇▇▇▇.▇▇▇ mutually agree to the
contrary.
3
(2) ADVERTISING RESTRICTIONS ▇▇▇▇.▇▇▇ will use best commercially
reasonable efforts to sell the relevant direct promotion and
advertising, and if any such inventory remains unsold, then
each party shall have the right to use one-third (1/3) of such
unsold inventory for its own purposes subject to the
restrictions described herein and the final one third (1/3) of
such unsold inventory shall be used to promote the NBC's email
service. NBC and ▇▇▇▇.▇▇▇ will coordinate their direct
promotion and advertising efforts so that they can avoid
confusion in the marketplace. ▇▇▇▇.▇▇▇ will (i) comply with
all ▇▇▇▇.▇▇▇ direct promotion and advertising standards as
well as any and all relevant NBC Advertising Standards,
including any amendments thereto, (ii) not act as a
representative for NBC or any NBC content or property in the
direct promotion or advertising marketplace, (iii) not sell
direct promotions or advertising appearing on the co-branded
site to any Excluded Companies, and (iv) not permit any such
direct promotion or advertising to refer to, or imply an
endorsement of any kind by, NBC or any of NBC's properties,
talent or licensers. In addition, all such direct promotion
and advertising will comply with any applicable NBC guidelines
regarding the use of intellectual property related to any NBC
television show or its talent's likenesses and images and any
other requirement related thereto.
(l) ▇▇▇.▇▇▇ PROMOTION. NBC agrees to make good faith efforts to reference
the NBC email service available via ▇▇▇.▇▇▇ within appropriate NBC
on-air promotion of ▇▇▇.▇▇▇. NBC will reference that NBC email is
powered by ▇▇▇▇▇.▇▇▇ but will not contain any ▇▇▇▇.▇▇▇ branding or
specific textual descriptions or acknowledge that ▇▇▇▇.▇▇▇ powers the
NBC email service. While it can make no assurances, NBC will use good
faith efforts to allocate such on-air promotion to prime-time, late
night, and Saturday morning programming. All on-air promotion, and the
nature thereof, shall be at NBC's sole discretion. NBC also agrees to
make commercially reasonable efforts to promote and market the NBC
email service when promoting and marketing the ▇▇▇.▇▇▇ site on-line or
in print. Such on-line and print promotions and marketing promotions
shall acknowledge that ▇▇▇▇.▇▇▇'s ▇▇▇▇▇.▇▇▇ powers the NBC email and
service. NBC agrees that it shall make commercially reasonable efforts
to cooperate with ▇▇▇▇.▇▇▇ concerning the nature of such on-line and
print promotions and marketing efforts, but NBC shall have the right of
final approval thereof. NBC also agrees that is will make commercially
reasonable efforts to adjust such on-line and print promotions, as well
as any on-air promotion which NBC chooses to run as described above,
based upon user response and to release them in a balanced quarterly
manner throughout the initial term of the ▇▇▇.▇▇▇ Agreement. NBC also
agrees that at a minimum ▇▇▇▇.▇▇▇ will receive comparable or better
promotion than other NBC partners providing comparable business terms.
NBC also agrees to provide at least three days notice to ▇▇▇▇.▇▇▇ prior
to any promotion in which a significant rise in email service signups
is expected.
(m) PUBLICITY. Upon completion of the definitive agreements contemplated
herein, NBC and ▇▇▇▇.▇▇▇ will issue a mutually agreeable joint press
release and any other mutually agreed upon promotional materials
regarding the relationship described in such agreements. Neither party
will make any press release or public statement about the transactions
described herein without the approval of the other party.
(n) EMAIL ADDRESS SELECTION. Users will be offered the email address choice
"▇▇▇▇▇.▇▇▇". In the event of expiration of this Agreement, ▇▇▇▇.▇▇▇
shall stop offering services to new users at the Email Site but will
continue to support services for all users who signed-up during the
Term unless specified to the contrary in the Termination section 3.
2. INTERACTIVE NEIGHBORHOOD ("NBC-IN")
a) DESCRIPTION OF NBC-IN MAIL LOCAL SITE. NBC-IN will feature ▇▇▇▇▇.▇▇▇ as
a provider of NBC-IN email service. Users of web sites operated by
participating NBC Television Network affiliates (the "Affiliates") will
be provided with an NBC-IN menu that features a link through which
users will be able to access a customized and localized jump page
containing certain material which is relevant to such user and his
local area, including the branding of each user's relevant Affiliate,
and access to the NBC-IN email service (the "NBC-IN Mail Local Site").
Such NBC-IN Mail Local Site will be operated by ▇▇▇▇.▇▇▇, provided that
such site will be surrounded by a frame which will be controlled by
NBC-IN. Within 90 days after launch, NBC-IN and ▇▇▇▇.▇▇▇ shall
4
create a system whereby the NBC-IN Mail Local Site shall recognize the
affiliate via which the user reached the site.
b) NBC-IN BRANDING. The site containing the NBC-IN email service shall be
branded similar to Snap's ▇▇▇▇▇.▇▇▇ branding but shall also include a
specific NBC-IN branded logo provided by NBC-IN at NBC's sole
discretion which shall be linked back to the NBC-IN site. When the user
enters the NBC-IN Mail Local Site via NBC-IN, they will see NBC-IN
branding, including the appropriate NBC Affiliate brand and the NBC-IN
logo. This may be accomplished by a frameset at the bottom of the page
surrounding the email service or by a tag stored based on where the
user signed up from. The NBC-IN and Affiliate branding will travel with
the user as they go through the site and will link back to the NBC-IN
home page. A "▇▇▇▇▇.▇▇▇" logo mention will also occur at the bottom of
each page of the NBC-IN Mail Local Sites. All other co-branding design
decisions will be subject to the mutual agreement of the parties
c) GENERAL FEATURES: See 1(d) Above
d) USAGE CONDITIONS: See 1(e) Above
e) UNIVERSAL REGISTRATION: See 1(e) Above
f) CUSTOMER SERVICE: See 1(f) Above
g) OPERATIONS, OWNERSHIP AND EXPLOITATION: See 1(g) Above
h) REGISTRATIONS. See 1(h) Above.
i) AFFILIATE DISTRIBUTION. NBC will offer links to the NBC-IN Mail Local
Site to its Affiliates as part of the NBC-IN package. However, in some
instances such Affiliates may already have a relationship with an email
provider or choose not to accept the NBC-IN Mail Local Site. If this is
the case, NBC-IN may provide the NBC-IN service to the Affiliates
without a link to the NBC-IN Mail Local Site.
j) ADVERTISING. Except as described below, ▇▇▇▇.▇▇▇ will be responsible
for selling all advertising on the site on which the NBC email service
is actually located. ▇▇▇▇.▇▇▇ will use commercially reasonable efforts
to sell such advertising, and if any such inventory remains unsold,
then each party shall have the right to use one-third (1/3) of such
unsold inventory for its own purposes subject to the restrictions
described herein and the final one third (1/3) of such unsold inventory
shall be used to promote the NBC-IN Mail Local Sites. NBC and ▇▇▇▇.▇▇▇
will coordinate their advertising efforts so that they can avoid
confusion in the marketplace. ▇▇▇▇.▇▇▇ will (i) comply with all
▇▇▇▇.▇▇▇ advertising standards as well as any and all relevant NBC
Advertising Standards, including any amendments thereto, (ii) not act
as a representative for NBC-IN, the Affiliates or any NBC content or
property in the advertising marketplace, (iii) not sell advertising
appearing on the co-branded site to any of the Excluded Companies, and
(iv) not permit any such advertising to refer to, or imply an
endorsement of any kind by, NBC-IN, the Affiliates or any of NBC's
properties, talent or licensers. In addition, all such advertising will
comply with any applicable NBC guidelines regarding the use of
intellectual property related to any NBC television show or its
talent's likenesses and images and any other requirement related
thereto. Notwithstanding the foregoing, if ▇▇▇▇.▇▇▇ has excess
inventory and NBC-IN brings an advertiser to ▇▇▇▇.▇▇▇ which advertiser
purchases advertising in connection with the NBC-IN Mail Local Site,
then ▇▇▇▇.▇▇▇ shall pay NBC a selling commission of xx% of the gross
advertising revenue that ▇▇▇▇.▇▇▇ collects in connection with such
advertising; after NBC's commission has been paid, ▇▇▇▇.▇▇▇ shall
subtract an additional xxxx percent (xx%) from such gross advertising
revenues as its commission in connection with creating, selling and
fulfilling such advertising.
k) SALE OF DIRECT PROMOTIONS: See 1(j) above.
l) PAYMENT PROCESS: See 1(k) above.
5
m) OTHER REVENUE. See 1(l) above.
n) TECHNOLOGY. ▇▇▇▇.▇▇▇ will insure that it can track usage of the NBC-IN
Mail Local Sites. ▇▇▇▇.▇▇▇ will provide NBC with a quarterly report of
such usage which report will contain data in the form reasonably agreed
upon by the parties. In addition, ▇▇▇▇.▇▇▇ will provide any other data
and statistics regarding usage and users of the NBC-IN Mail Local Sites
which NBC reasonably requests from time to time, provided, that NBC
will make commercially reasonable efforts to make no more than one such
additional request for information per month.
o) PUBLICITY. See 1(m) above.
p) NBC-IN ON-AIR PROMOTION. All Affiliates participating in NBC-IN will be
required to offer a minimum of 10 on-air promos concerning, or mentions
of, the URL address of its own world wide web site per week. NBC shall
provide Affiliates with appropriate "calls-to-action" examples to
enable such Affiliates to include NBC-IN information as part of such
promos or mentions. NBC-IN also agrees that at a minimum ▇▇▇▇.▇▇▇ will
receive comparable or better promotion than other NBC partners
providing comparable business terms. NBC-IN also agrees to provide at
least three days notice to ▇▇▇▇.▇▇▇ prior to any promotion in which a
significant rise in email service signups is expected.
q) NBC-IN ONLINE PROMOTION OF THE NBC-IN MAIL LOCAL SITE. A link to the
NBC-IN Mail Local Site will either appear on the NBC-IN navigation menu
which is provided to the Affiliates by NBC-IN or will be rotated into
the menu on an equal basis with other content providers, or otherwise
integrated into the affiliate site. A link to the NBC-IN Mail Local
Site will also appear on the main NBC-IN home page. ▇▇▇▇.▇▇▇ will
provide NBC-IN with regular information and marketing material
regarding ▇▇▇▇.▇▇▇'s email service which NBC-IN will provide to the
Affiliates for use by the Affiliates in their sole discretion if they
choose to promote the NBC-IN Mail Local Site in connection with their
own world wide web sites. NBC-IN also agrees to provide at least three
days notice to ▇▇▇▇.▇▇▇ prior to any promotion in which a significant
rise in email service signups is expected.
r) EMAIL ADDRESS SELECTION. See 1(n) above.
3. TERMS AND TERMINATION
3.1 TERM. The term of this Agreement (the "Term") will continue until the
Agreement is terminated in accordance with one of the other provisions
of this Section 3.
3.2 TERMINATION BY NBC FOR ▇▇▇▇.▇▇▇ DISCONTINUATION OF SERVICES OR
BANKRUPTCY. NBC shall have the right, in addition and without prejudice
to any other rights or remedies, to terminate this Agreement as
follows:
3.2.1 Immediately upon notice to ▇▇▇▇.▇▇▇ if (a) all or a
substantial portion of the assets of ▇▇▇▇.▇▇▇ are transferred
to an assignee for the benefit of creditors, to a receiver or
to a trustee in bankruptcy, (b) a proceeding is commenced by
or against ▇▇▇▇.▇▇▇ for relief under bankruptcy or similar
laws and such proceeding is not dismissed within 60 days, or
(c) ▇▇▇▇.▇▇▇ is adjudged bankrupt; or
3.2.2 Immediately upon notice to ▇▇▇▇.▇▇▇ if ▇▇▇▇.▇▇▇ (a) has
publicly announced that it is discontinuing, or (b) has
discontinued for 30 consecutive days, its business that is
directed to the development, sale and operation of Internet
sites offering email services.
3.3 CONSEQUENCES OF TERMINATION UNDER SECTION 3.2. If this Agreement is
terminated by NBC pursuant to Section 3.2, then:
6
3.3.1 ▇▇▇▇.▇▇▇ will transfer all User Data for NBC Email Service
Users at the ▇▇▇▇▇.▇▇▇ domain name (NBC Email Service User
Data), in a format and on a timetable reasonably acceptable to
NBC, and all rights in the NBC Email Service User Data and
such base of subscribed Users to NBC or to NBC's designee.
Following such transfer, NBC will have the unrestricted right
to use all NBC Email Service User Data, and ▇▇▇▇.▇▇▇ will have
no right to use any NBC Email Service User Data without NBC's
express, written consent. ▇▇▇▇.▇▇▇ will incur the reasonable
costs of exporting the NBC Email Service User Data in a
readable format.
3.3.2 ▇▇▇▇.▇▇▇ will cooperate in good faith with NBC or its designee
to ensure an orderly and expeditious transfer of NBC Email
Service User Data from ▇▇▇▇.▇▇▇ to NBC or its designee. NBC
acknowledges that ▇▇▇▇.▇▇▇ will not be required to develop any
new software code to assist in the transfer process. Both
parties anticipate that the transfer will be completed, and
that NBC will be in a position to launch a successor email
service at a new NBC domain name, within three months after
termination (the "Completed Transition"). Until the Completed
Transition, the terms of this Agreement, as then in effect,
will apply to the continued operation of the NBC Email Service
site.
3.3.3 NBC will retain ownership of the up-front cash payment and all
of the ▇▇▇▇.▇▇▇ Common Stock received under this agreement.
Furthermore, NBC will thereafter have exclusive right to all
User Data and the economic benefit of such Users for their
economic life.
3.4 TERMINATION BY NBC FOR CAUSE. NBC shall have the right, in addition and
without prejudice to any other rights or remedies, to terminate this
Agreement as follows:
3.4.1 Immediately upon notice to ▇▇▇▇.▇▇▇, such notice to be given
no later than 30 days after expiration of the cure period
below, if ▇▇▇▇.▇▇▇ commits any material breach of this
Agreement other than a breach as a result of a force majeure
event (i.e. outside of the reasonable control of ▇▇▇▇.▇▇▇) and
does not remedy such breach, where such breach could be
reasonably remedied, within 30 days after receipt by ▇▇▇▇.▇▇▇
of notice specifying the breach and requiring its remedy; or
3.4.2 Immediately upon notice to ▇▇▇▇.▇▇▇, such notice to be given
no later than 30 days after expiration of the cure period
below, if one of the following conditions occurs and such
condition is not cured within 30 days after receipt by
▇▇▇▇.▇▇▇ of notice specifying the breach and requiring its
remedy: (i) the Unavailability of Email services through NBC
Email Service, defined as the inability of Users to access the
member area of the NBC EMAIL SERVICE site excluding scheduled
outages, exceeds 5% during any calendar month (or, if in a
cure period, time in a week); (ii) the Relative NBC Email
Service Site Performance, defined as the ratio of (a) time in
the month (or, if in a cure period, time in a week) that Users
at NBC Email Service are unable to access the member area of
NBC Email Service and (b) time in the month (or, if in a cure
period, time in a week) that all other members of ▇▇▇▇.▇▇▇
partner email sites are unable to access the member areas of
those sites, is less than 90%; or (iii) during any consecutive
three months (or, if in a cure period, one week), the average
response time to download the complete HTML and graphics for
the "check mail" page of the NBC Email Service web email
client exceeds two times the average download time for the
equivalent page of the top three providers of HTML mail, where
(a) the top three providers of HTML mail will be determined by
the number of users, (b) response time will be measured by an
independent third party such as Keynote (or its equivalent),
and (c) the test will be based on the download of the same
email.
3.5 CONSEQUENCES OF TERMINATION UNDER SECTION 3.4. If this Agreement is
terminated by NBC pursuant to Section 3.4, then:
7
3.5.1 ▇▇▇▇.▇▇▇ will notify all NBC Users that they can (1) transfer
their service to a service provided by NBC at a NBC Domain
name or (2) continue with their email service provided by
▇▇▇▇.▇▇▇. Users will have three months to decide. For those
users that choose to continue with service provided by NBC,
▇▇▇▇.▇▇▇ will transfer their User Data (NBC Email Service User
Data), in a format and on a timetable reasonably acceptable to
NBC, and all rights in such NBC Email Service User Data and
such base of subscribed Users to NBC or to NBC's designee.
Following such transfer, NBC will have the unrestricted right
to use such NBC Email Service User Data, and ▇▇▇▇.▇▇▇ will
have no right to use such NBC Email Service User Data without
NBC's express, written consent. ▇▇▇▇.▇▇▇ will incur the
reasonable costs of exporting the NBC Email Service User Data
in a readable format.
3.5.2 ▇▇▇▇.▇▇▇ will cooperate in good faith with NBC or its designee
to ensure an orderly and expeditious transfer of such NBC
Email Service User Data from ▇▇▇▇.▇▇▇ to NBC or its designee.
NBC acknowledges that ▇▇▇▇.▇▇▇ will not be required to develop
any new software code to assist in the transfer process. Both
parties anticipate that the transfer will be completed, and
that NBC will be in a position to launch a successor email
service, within three months after termination (the "Completed
Transition"). Until the Completed Transition, the terms of
this Agreement, as then in effect, will apply to the continued
operation of the NBC Email Service site.
3.5.3 Within ten days after the Completed Transition, NBC will
comply with the one of the following two paragraphs at NBC's
discretion (▇▇▇▇.▇▇▇ and NBC acknowledge that this amount is
reasonable in liquidated damages and not as a penalty in the
event of termination under this section.):
3.5.3.1 pay ▇▇▇▇.▇▇▇ an amount in cash equal to 100% of the
fair market value of the NBC Email Service User Data
for the first 200,000 users transferred to NBC and
50% of the fair market value of the NBC Email Service
User Data for the post 200,000 users transferred to
NBC, based on the projected economic benefit to
▇▇▇▇.▇▇▇ of such Users for their expected economic
life, as determined, prior to the transfer of the NBC
Email Service User Data, by a reasonably qualified,
independent third party mutually acceptable to NBC
and ▇▇▇▇.▇▇▇ (the "Appraised User Value"), or
3.5.3.2 transfer back to ▇▇▇▇.▇▇▇ all of the ▇▇▇▇.▇▇▇ Common
Stock received under this agreement for no
consideration or, at NBC's option, pay ▇▇▇▇.▇▇▇ the
fair market value of such shares, as determined by a
reasonably qualified, independent third party
mutually acceptable to NBC and ▇▇▇▇.▇▇▇ (the
"Appraised Stock Value"), or
3.5.3.3 NBC will not offer the users the option to transfer,
and ▇▇▇▇.▇▇▇ will retain exclusive right to all User
Data and the economic benefit of such Users for their
economic life. NBC will retain ownership of the full
amount of the up-front cash payment and a pro-rata
amount of all of the ▇▇▇▇.▇▇▇ Common Stock received
under this agreement. The pro-rata amount will be
based on the amount of months that the email service
was offered by NBC out of 24 months (i.e., if the
email service was offered for 16 months then NBC
would have to return 8 divided by 24 or one third of
the ▇▇▇▇.▇▇▇ Common Stock received.
3.6 TERMINATION BY NBC UPON CHANGE IN CONTROL. NBC shall have the right, in
addition and without prejudice to any other rights or remedies, to
terminate this Agreement upon ten days' notice to ▇▇▇▇.▇▇▇, which may
be delivered at any time within nine months after a controlling
interest in ▇▇▇▇.▇▇▇ is purchased or otherwise transferred to any
Excluded Company or (ii) any company that intentionally and regularly
provides, or that any of its affiliates intentionally and regularly
provide, Adult Content to its users. For purposes hereof, the term
"Adult Content" shall mean any material which is pornographic or which
contains nudity, explicit sexual material or depiction's of sexual acts
any of which is beyond that normally broadcast over the NBC Television
Network.
8
3.7 CONSEQUENCES OF TERMINATION UNDER SECTION 3.6. If this Agreement is
terminated by NBC pursuant to Section 3.6, then:
3.7.1 ▇▇▇▇.▇▇▇ will transfer all NBC Email Service User Data, in a
format and on a timetable reasonably acceptable to NBC, and
all rights in the NBC Email Service User Data and such base of
subscribed Users to NBC or to NBC's designee such that NBC can
continue the service at a NBC domain name. Following such
transfer, NBC will have the unrestricted right to use all NBC
Email Service User Data, and ▇▇▇▇.▇▇▇ will have no right to
use any NBC Email Service User Data without NBC's express,
written consent. ▇▇▇▇.▇▇▇ will incur the reasonable costs of
exporting the NBC Email Service User Data in a readable
format.
3.7.2 ▇▇▇▇.▇▇▇ will cooperate in good faith with NBC or its designee
to ensure an orderly and expeditious transfer of NBC Email
Service User Data from ▇▇▇▇.▇▇▇ to NBC or its designee. NBC
acknowledges that ▇▇▇▇.▇▇▇ will not be required to develop any
new software code to assist in the transfer process. Both
parties anticipate that the Completed Transition will be
completed within three months after termination. Until the
Completed Transition, the terms of this Agreement, as then in
effect, will apply to the continued operation of the NBC Email
Service site.
3.7.3 Within ten days after the Completed Transition, NBC will
comply with the one of the following three paragraphs at NBC's
discretion: (▇▇▇▇.▇▇▇ and NBC acknowledge that this amount is
reasonable in liquidated damages and not as a penalty in the
event of termination under this section).:
3.7.3.1 pay ▇▇▇▇.▇▇▇ an amount in cash equal to 100% of the
fair market value of the NBC Email Service User Data
for the first 200,000 users transferred to NBC and
50% of the fair market value of the NBC Email Service
User Data for the post 200,000 users transferred to
NBC, based on the projected economic benefit to
▇▇▇▇.▇▇▇ of such Users for their expected economic
life, as determined, prior to the transfer of the NBC
Email Service User Data, by a reasonably qualified,
independent third party mutually acceptable to NBC
and ▇▇▇▇.▇▇▇ (the "Appraised User Value"), or
3.3.7.3.2transfer back to ▇▇▇▇.▇▇▇ all of the ▇▇▇▇.▇▇▇ Common
Stock received under this agreement for no
consideration or, at NBC's option, pay ▇▇▇▇.▇▇▇ the
fair market value of such shares, as determined by a
reasonably qualified, independent third party
mutually acceptable to NBC and ▇▇▇▇.▇▇▇ (the
"Appraised Stock Value"), or
3.7.3.3 ▇▇▇▇.▇▇▇ will retain exclusive right to all User Data
and the economic benefit of such Users for their
economic life. NBC will retain ownership of the full
amount of the up-front cash payment and a pro-rata
amount of all of the ▇▇▇▇.▇▇▇ Common Stock received
under this agreement. The pro-rata amount will be
based on the amount of months that the email service
was offered by NBC out of 24 months (i.e., if the
email service was offered for 16 months then NBC
would have to return 8 divided by 24 or one third of
the ▇▇▇▇.▇▇▇ Common Stock received.
3.8 TERMINATION BY NBC FOR CONVENIENCE. Beginning two years after NBC has
offered the email service to its users, NBC shall have the right to
terminate this Agreement for any reason (or for no reason) upon thirty
days' notice to ▇▇▇▇.▇▇▇.
3.9 CONSEQUENCES OF TERMINATION UNDER SECTION 3.8. If this Agreement is
terminated by NBC pursuant to Section 3.8:
9
3.9.1 NBC can at its sole discretion choose one of the two following
alternatives:
3.9.1.1 NBC can choose to no longer provide email functionality
through its website. In such case the Agreement will
terminate. NBC will retain the up-front cash payment and the
▇▇▇▇.▇▇▇ Common Stock received under this agreement. ▇▇▇▇.▇▇▇
will continue to provide service to the users and ▇▇▇▇.▇▇▇
will thereafter have exclusive right to all User Data and the
economic benefit of such Users for their economic life, or
3.9.1.2 NBC can choose to continue to provide email service to NBC
Users as follows:
▇▇▇▇.▇▇▇ will transfer all NBC Email Service User Data, in a
format and on a timetable reasonably acceptable to NBC, and
all rights in the NBC Email Service User Data and such base of
subscribed Users to NBC or to NBC's designee such that NBC can
continue the service at a NBC domain name. Following such
transfer, NBC will have the unrestricted right to use all NBC
Email Service User Data, and ▇▇▇▇.▇▇▇ will have no right to
use any NBC Email Service User Data without NBC's express,
written consent. NBC will reimburse ▇▇▇▇.▇▇▇ for its
reasonable costs related to transferring such NBC Email
Service User Data.
▇▇▇▇.▇▇▇ will cooperate in good faith with NBC or its designee
to ensure an orderly and expeditious transfer of NBC Email
Service User Data from ▇▇▇▇.▇▇▇ to NBC or its designee. NBC
acknowledges that ▇▇▇▇.▇▇▇ will not be required to develop any
new software code to assist in the transfer process. Both
parties anticipate that the Completed Transition will be
completed within three months after termination. Until the
Completed Transition, the terms of this Agreement, as then in
effect, will apply to the continued operation of the NBC Email
Service site.
Within ten days after the Completed Transition, NBC will:
3.9.1.2a pay ▇▇▇▇.▇▇▇ an amount in cash equal to the
Appraised User Value (▇▇▇▇.▇▇▇ and NBC
acknowledge that this amount is reasonable
in liquidated damages and not as a penalty
in the event of termination under this
section.); and
3.9.1.2b transfer back to ▇▇▇▇.▇▇▇ all of the
▇▇▇▇.▇▇▇ Common Stock received under this
agreement for no consideration or, at NBC's
option, pay ▇▇▇▇.▇▇▇ the Appraised Stock
Value of the such Shares.
3.10 TERMINATION BY ▇▇▇▇.▇▇▇ OR NBC UPON CHANGE IN CONTROL OF ▇▇▇.▇▇▇ OR NBC
IN: Both parties shall have the right, in addition and without
prejudice to any other rights or remedies, to terminate this Agreement
upon ten days' notice to the other party, which may be delivered at any
time within nine months after a controlling interest in ▇▇▇.▇▇▇ of NBC
IN is purchased or otherwise transferred to another Company .
3.11 CONSEQUENCES OF TERMINATION UNDER SECTION 3.10: If this Agreement is
terminated by ▇▇▇▇.▇▇▇ pursuant to Section 3.10, then:
3.11.1 ▇▇▇▇.▇▇▇ will transfer all NBC Email Service User Data, in a
format and on a timetable reasonably acceptable to NBC, and
all rights in the NBC Email Service User Data and such base of
subscribed Users to NBC or to NBC's designee. Following such
transfer, NBC will have the unrestricted right to use all NBC
Email Service User Data, and ▇▇▇▇.▇▇▇ will have no right to
use any NBC Email Service User Data without NBC's express,
written consent. ▇▇▇▇.▇▇▇ will incur the reasonable costs of
exporting the NBC Email Service User Data in a readable
format.
3.11.2 ▇▇▇▇.▇▇▇ will cooperate in good faith with NBC or its designee
to ensure an orderly and expeditious transfer of NBC Email
Service User Data from ▇▇▇▇.▇▇▇ to NBC or its designee such
that NBC can continue the service at a NBC domain name. NBC
acknowledges that ▇▇▇▇.▇▇▇
10
will not be required to develop any new software code to
assist in the transfer process. Both parties anticipate that
the Completed Transition will be completed within three months
after termination. Until the Completed Transition, the terms
of this Agreement, as then in effect, will apply to the
continued operation of the NBC Email Service site.
3.11.3 Within ten days after the Completed Transition, NBC will
comply with the one of the following three paragraphs at NBC's
discretion: (▇▇▇▇.▇▇▇ and NBC acknowledge that this amount is
reasonable in liquidated damages and not as a penalty in the
event of termination under this section).:
3.11.3.1 pay ▇▇▇▇.▇▇▇ an amount in cash equal to 100% of the
fair market value of the NBC Email Service User Data
for the first 200,000 users transferred to NBC and
50% of the fair market value of the NBC Email Service
User Data for the post 200,000 users transferred to
NBC, based on the projected economic benefit to
▇▇▇▇.▇▇▇ of such Users for their expected economic
life, as determined, prior to the transfer of the NBC
Email Service User Data, by a reasonably qualified,
independent third party mutually acceptable to NBC
and ▇▇▇▇.▇▇▇ (the "Appraised User Value"), or
3.11.3.2 transfer back to ▇▇▇▇.▇▇▇ all of the ▇▇▇▇.▇▇▇ Common
Stock received under this agreement for no
consideration or, at NBC's option, pay ▇▇▇▇.▇▇▇ the
fair market value of such shares, as determined by a
reasonably qualified, independent third party
mutually acceptable to NBC and ▇▇▇▇.▇▇▇ (the
"Appraised Stock Value"), or
3.11.3.3 ▇▇▇▇.▇▇▇ will retain exclusive right to all User Data
and the economic benefit of such Users for their
economic life. NBC will retain ownership of the full
amount of the up-front cash payment and a pro-rata
amount of all of the ▇▇▇▇.▇▇▇ Common Stock received
under this agreement. The pro-rata amount will be
based on the amount of months that the email service
was offered by NBC out of 24 months (i.e., if the
email service was offered for 16 months then NBC
would have to return 8 divided by 24 or one third of
the ▇▇▇▇.▇▇▇ Common Stock received.
3.12 CONSEQUENCES OF TERMINATION UNDER SECTION 3.10: If this Agreement is
terminated by NBC pursuant to Section 3.10, then:
3.12.1 NBC can at its sole discretion choose one of the two following
alternatives:
3.12.1.1 NBC can choose to no longer provide email functionality
through its website or that of its new parent. In such case
the Agreement will terminate. ▇▇▇▇.▇▇▇ will continue to
provide service to the users and ▇▇▇▇.▇▇▇ will thereafter have
exclusive right to all User Data and the economic benefit of
such Users for their economic life. NBC will retain ownership
of the full amount of the up-front cash payment and a pro-rata
amount of all of the ▇▇▇▇.▇▇▇ Common Stock received under this
agreement. The pro-rata amount will be based on the amount of
months that the email service was offered by NBC out of 24
months (i.e., if the email service was offered for 16 months
then NBC would have to return 8 divided by 24 or one third of
the ▇▇▇▇.▇▇▇ Common Stock received., or
3.12.1.2 NBC can choose to continue to provide email service to NBC
Users as follows:
▇▇▇▇.▇▇▇ will transfer all NBC Email Service User Data, in a
format and on a timetable reasonably acceptable to NBC, and
all rights in the NBC Email Service User Data and such base of
subscribed Users to NBC or to NBC's designee such that NBC can
continue the service at a NBC domain name. Following such
transfer, NBC will have the unrestricted right to use all NBC
Email Service User Data, and ▇▇▇▇.▇▇▇ will have no right to
use any NBC Email Service User
11
Data without NBC's express, written consent. NBC will
reimburse ▇▇▇▇.▇▇▇ for its reasonable costs related to
transferring such NBC Email Service User Data.
▇▇▇▇.▇▇▇ will cooperate in good faith with NBC or its designee
to ensure an orderly and expeditious transfer of NBC Email
Service User Data from ▇▇▇▇.▇▇▇ to NBC or its designee. NBC
acknowledges that ▇▇▇▇.▇▇▇ will not be required to develop any
new software code to assist in the transfer process. Both
parties anticipate that the Completed Transition will be
completed within three months after termination. Until the
Completed Transition, the terms of this Agreement, as then in
effect, will apply to the continued operation of the NBC Email
Service site.
Within ten days after the Completed Transition, NBC will:
3.12.1.2a pay ▇▇▇▇.▇▇▇ an amount in cash equal to the
Appraised User Value (▇▇▇▇.▇▇▇ and NBC
acknowledge that this amount is reasonable
in liquidated damages and not as a penalty
in the event of termination under this
section.); and
3.12.1.2b transfer back to ▇▇▇▇.▇▇▇ all of the
▇▇▇▇.▇▇▇ Common Stock received under this
agreement for no consideration or, at NBC's
option, pay ▇▇▇▇.▇▇▇ the Appraised Stock
Value of the such Shares.
3.13 TERMINATION BY ▇▇▇▇.▇▇▇ FOR CAUSE. ▇▇▇▇.▇▇▇ shall have the right, in
addition and without prejudice to any other rights or remedies, to
terminate this Agreement as follows:
3.13.1 Immediately upon notice to NBC, such notice to be given no
later than 30 days after expiration of the cure period below,
if NBC commits any material breach of this Agreement other
than a breach as a result of a force majeure event (i.e.
outside of the reasonable control of NBC) and does not remedy
such breach, where such breach could be reasonably remedied,
within 30 days after receipt by NBC of notice specifying the
breach and requiring its remedy; or
3.13.2 Immediately upon notice to NBC if (a) all or a substantial
portion of the assets of NBC are transferred to an assignee
for the benefit of creditors, to a receiver or to a trustee in
bankruptcy, (b) a proceeding is commenced by or against NBC
for relief under bankruptcy or similar laws and such
proceeding is not dismissed within 60 days, or (c) NBC is
adjudged bankrupt.
3.14 CONSEQUENCES OF TERMINATION UNDER SECTION 3.13. If this agreement is
terminated by ▇▇▇▇.▇▇▇ pursuant to Section 3.13.1 or 3.13.2, then NBC
will transfer back to ▇▇▇▇.▇▇▇ all of the ▇▇▇▇.▇▇▇ Common Stock
received under this agreement for no consideration or, at NBC's option,
pay ▇▇▇▇.▇▇▇ the Appraised Stock Value of the such Shares. In addition,
if this agreement is terminated by ▇▇▇▇.▇▇▇ pursuant to Section 3.13.1
then NBC will pay to ▇▇▇▇.▇▇▇ the amount received by NBC as Upfront
cash payment. Furthermore, ▇▇▇▇.▇▇▇ will thereafter have exclusive
right to all User Data and the economic benefit of such Users for their
economic life. NBC can require that such users log in to their email
service in the same manner as during the term of the agreement.
4 PAYMENT
4.1 CASH PAYMENT. In addition to the equity described below, ▇▇▇▇.▇▇▇ shall
pay a non-refundable $200,000 fee upon launch of ▇▇▇.▇▇▇ and NBC.-IN,
the payment shall be as follows: ▇▇▇▇.▇▇▇ shall pay to ▇▇▇.▇▇▇ a cash
fee of $125,000 payable in 12 monthly installments with $10,490 due on
the day of launch and then 11 installments of $10,410 due on a monthly
basis thereafter and ▇▇▇▇.▇▇▇ shall pay to NBC-IN a cash fee of $75,000
payable in 12 equal monthly installments with $6,250 due on the day of
launch and then 11 installments of $6,250 due on a monthly basis
thereafter.
12
4.2 ▇▇▇.▇▇▇ AND NBC-IN EQUITY: In consideration for the foregoing, ▇▇▇.▇▇▇
and NBC-IN ("NBC Sites") will be granted a total of $1,050,000 worth of
the ▇▇▇▇.▇▇▇'s Class A Common Stock (the "Common Stock") issued at a
value of $5.00 per share as follows:
▇▇▇▇.▇▇▇ will grant to the NBC Sites a minimum of 210,000 shares of stock. These
will be granted as follows: 110,000 upon launch, and then 12,500 per quarter for
the 8 quarters subsequent to launch. Shares will be split between ▇▇▇.▇▇▇ and
NBC-IN at NBC's discretion. ▇▇▇▇.▇▇▇ will provide detailed reporting such that
NBC will know where their sign-ups were derived.
The NBC Sites will be entitled to earn additional stock ownership in ▇▇▇▇.▇▇▇ or
interest in Users as follows: After the NBC Sites have qualified for 250,000
shares based on the Sign Up Share Allocation below, they will (a) earn
additional shares under the Sign Up Share Allocation (i)/(ii) below if still
applicable or (b) they will earn a 50% interest on such subsequent sign ups
("NBC Revenue Users" or "NBC Excess Users") as described below in Section 4.4,
to be decided at NBC's discretion upon qualifying for 250,000 shares.
(The "Sign Up Share Allocation"):
(i) for every new sign up at ▇▇▇▇▇.▇▇▇ through December 31, 1999
generated from Snap, ▇▇▇.▇▇▇ and NBC-IN, ▇▇▇▇.▇▇▇ will grant
1.25 shares to the respective party up to 2,000,000 such sign
ups,
(i) thereafter, for every new sign up at ▇▇▇▇▇.▇▇▇ through
December 31, 2000 generated from Snap, ▇▇▇.▇▇▇ and NBC-IN,
▇▇▇▇.▇▇▇ will grant 0.50 shares to the respective party up to
4,000,000 cumulative sign ups.
(ii) These share amounts reflect Mail.coms 2:1 stock split on
October 2, 1998. All shares under this agreement will be
adjusted for all stock splits or reverse stock splits as they
occur.
4.4 PAYMENTS TO NBC. ▇▇▇▇.▇▇▇ will pay NBC xx% of the Profit earned from
the NBC Revenue Users as follows:
4.4.1 "NBC Sharing Percentage" for a particular quarter means the
number of NBC Revenue Users at the end of such quarter as a
percentage of the total number of NBC Users at the end of such
quarter.
4.4.2 "NBC Total Revenue" means the total money collected by
▇▇▇▇.▇▇▇ from NBC users, including without limitation any
money collected from the promotions and subscriptions, less
refunds.
4.4.3 "NBC Allocated Expenses" means the expenses incurred by
▇▇▇▇.▇▇▇ to generate the NBC Total Revenue, which includes (i)
any direct costs such as hardware, bandwidth, and customer
service and (ii) any pro rata allocation of overhead items
such as general and administrative expenses, sales expenses,
research and development, marketing, depreciation and
amortization, etc. which reasonably benefited the NBC service.
Such pro rata allocation of overhead items will be made in
proportion to the NBC Users as a fraction of the total
▇▇▇▇.▇▇▇ users across its network of ▇▇▇▇.▇▇▇ and partner
sites. NBC has the right to audit the allocation of overhead
items on an annual basis and ▇▇▇▇.▇▇▇ will reasonably adjust
the allocation in accordance with the audit. The ratio of NBC
Allocated Expenses to NBC Total Revenue will not be less than
same ratio across ▇▇▇▇.▇▇▇'s other email partners including
NBC.
4.4.4 The "Profit" earned from the NBC Revenue Users for a
particular quarter means (a) the NBC Sharing Percentage for
such quarter, times (b) NBC Total Revenue for such quarter
minus NBC Allocated Expenses for such quarter
4.4.5 Within 30 days after the end of each quarter during the Term,
▇▇▇▇.▇▇▇ will pay to NBC xx% of the Profit earned from NBC
Revenue Users for such quarter, along with a statement showing
the calculation of such amount.
4.4.6 ▇▇▇▇.▇▇▇ shall deliver revenue and sign-up reports to NBC such
that NBC can properly allocate shares and profits between
▇▇▇.▇▇▇ and NBC-IN.
13
4.5 Upon reasonable prior written notice, NBC may cause an independent
certified public accountant to, inspect the records of ▇▇▇▇.▇▇▇ which
are reasonably related to the calculation of such payments during
▇▇▇▇.▇▇▇'s normal business hours. The fees and expenses charged by any
certified public accountant which NBC chooses to hire in connection
with the inspection will be paid by NBC, unless the payments made to
NBC are determined to have been less than 90% of the payment owed to
NBC, in which case ▇▇▇▇.▇▇▇ will be responsible for the payment of the
reasonable fees and expenses for such inspection.
4.6 Shares of Common Stock issued in a private placement shall not be
subject to a lock-up of any kind except in the event of an IPO in which
case shares shall be subject to the usual 180 day underwriter lockup.
The issuance of any such shares issued pursuant to a private placement
shall be governed by the terms of a Stock Purchase Agreement to be
negotiated in good faith between the parties which will include
representations, warranties and covenants of the Company and grant
rights to NBC, including piggyback and S-3 registration rights and
financial information, at least as favorable as those provided to any
other investor of comparable size the Company (including, without
limitation, Snap LLC). If the parties cannot agree upon the final form
of a Stock Purchase Agreement within forty-five (45) days of the date
hereof, NBC shall have the option, which may be exercised in its sole
discretion, provided it has negotiated in good faith, of immediately
terminating this Agreement by providing the Company with written notice
of its decision.
5. MISCELLANEOUS.
a) This Agreement shall be governed by the laws of the state of
New York without reference to conflict of law principles. The parties
hereby submit to the jurisdiction of the federal and state courts
located in the County of New York, and any action or suit under this
Agreement shall only be brought by the parties in any federal or state
court with appropriate jurisdiction over the subject matter established
or settled in the County of New York.
b) It is expressly understood that this Agreement does not create
any partnership, joint venture or employment relationship between the
parties, that both parties are acting as independent contractors with
respect to each other, and that none of the employees of either party
shall be deemed to be employees of the other party for any purpose.
Neither party may not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of the
other party; provided that NBC may freely assign or transfer this
Agreement to any affiliate of NBC upon written notice to ▇▇▇▇.▇▇▇. This
Agreement shall be fully binding upon, inure to the benefit of, and be
enforceable by and against the parties hereto and their respective
successors and assigns.
c) This Agreement may be executed in counterparts, each of which
shall constitute an original but all of which, when taken together,
shall constitute one agreement, and shall become effective when one or
more such counterparts have been signed by each of the parties and
delivered to the other party. No waiver or modification of any
provision of this Agreement shall be effective unless in writing and
signed by both parties. Any waiver by either party of any provision of
this Agreement shall not be construed as a waiver of any other
provision of this Agreement, nor shall such waiver operate as or be
construed as a waiver of such provision respecting any future event or
circumstance.
ACKNOWLEDGED AND AGREED:
NBC Multimedia, Inc. ▇▇▇▇.▇▇▇, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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Name Name
Senior Vice President President
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Title Title
2/10/99 2/8/99
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Date Date
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