EXHIBIT 10.19
February 25, 1998
Via Telecopier
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Mr. Xxxxx Xxxxxxxx
President & CEO
Live World Productions
000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Re: Talk City Participation in NBC-IN
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Dear Xx. Xxxxxxxx:
This letter sets forth the initial agreement between NBC Multimedia, Inc.
("NBC"), and Live World Productions Inc. ("Company"), as of the date set forth
above (the "Effective Date") with respect to the Company's agreement to provide
its "Talk City" internet chat services as part of NBC's NBC-IN service. The
terms and conditions shall be as follows:
1. Description of NBC-IN. NBC has created a menu of localized world wide web
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services (the "NBC-IN") which it offers to the NBC Television Network's
("NBC TV") owned and operated stations and interested affiliates (the
"Stations"). NBC agrees that localized versions of the general Talk City
Internet chat service created and operated by the Company ("Talk City")
shall be among the list of primary services offered as part of such
platform subject to the terms and conditions hereof. Company acknowledges
(i) that each Station will have the sole right to determine [*] as part of
the NBC-IN, (ii) that Talk City [*] included in any individual Station's
list of such services, and (iii) that NBC and declining Stations shall have
no liability or obligations to Company due to any Stations' [*].
2. Creation of Talk City Local Sites. Company agrees that it shall create
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customized local versions of Talk City for use by Stations participating in
the NBC-IN. Such localized versions will be designed and operated through
the technological cooperation of Company, NBC, the Stations and NBC's
technology partners (as described below in Section 4(c)) to insure that
online viewers of the Stations' world wide web sites (the "Station Sites")
shall be provided with a version of Talk City which is designed to provide
information and branding relevant to such viewers geographical market. Each
localized version of the general Talk City service (each localized version
to be known for purposes of this Letter Agreement as a "Talk City Local
Site") shall consist of (i) individualized Station "jump pages" which will
be versions of the Talk City general service which contain branding and
other material to be provided by NBC and each of the relevant Stations and
(ii) customized, traveling branding and advertising that appears on any
Talk City pages accessed by viewers after the initial jump page has
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* Certain information in this Exhibit has been
omitted and filed with the Commission.
Confidental treatment has been requested with
respect to the omitted portions.
been viewed. Each such Talk City Local Site shall be framed within a sub-
page of the Station Site but will contain material to be provided by
Company and located on Company's server. Regardless of the depth of the use
by viewers coming through Station Sites, all use of the Talk City Local
Sites shall continue to take place within such Station Sites. As a result
all online viewers will be accessing and bookmarking the Talk City Local
Site content through the NBC-IN's portion of the Station's URL. Company
agrees that the Talk City Local Sites shall also contain (i) open chat
rooms for fans of each NBC Television program (e.g., a "Friends" chat room)
and (ii) at least one chat room (and more if Station requests) specifically
designed for each local market and will have the ability to run auditorium
chats with local talent which shall be moderated by a local NBC webmaster
which, at NBC's option, shall be trained by Company. Except as described in
Section 6 below, the Talk City Local Sites will not include any news or
other categories of information which NBC chooses, in its sole discretion,
to remove from the version of such service provided to it or the Stations,
including any branding of, or links to, any Other Networks' material (as
such term is defined below).
3. Links. As a condition of utilizing the NBC-IN, each participating Station
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will be required to devote a standardized portion of the front page of the
Station Site to the NBC-IN, subject to Station's right to have overall
design control of the Station Site. Each Station shall be encouraged to
devote enough space on its front page to permit the placement of hotlinks
to the individual services which make up the NBC-IN within space on such
front page allocated and dedicated to the NBC-IN, but at a minimum, each
participating Station Site's front page shall contain a prominent hotlink
to a special sub-page devoted to hotlinks for all of the services making up
the NBC-IN the size of which shall be comparable to that of any other link
to a service offered by the Station. NBC agrees that when the individual
services which make up the NBC-IN are displayed and a hotlink to the Talk
City Local Site is provided, whether on a front page or on a separate page,
the Talk City icon and/or text, if any, (the "Talk City Link") shall be
comparable and consistent with the icon and text, if any, devoted to any of
the other individual services which are part of the NBC-IN, subject to
NBC's right to group brands and/or genetic categories and subcategories
concerning all of its service providers in manners and sizes which are most
useful to viewers of the Station Sites.
4. Management of Talk City Local Sites. The day-to-day management of the Talk
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City Local Sites. and all costs associated therewith, shall be the
responsibility of the Company subject to the following:
(a) Content and Service - Company will provide all of the content and
services for each of the Talk City Local Sites. provided that as part of
the Itemization and customizing process required herein. NBC and the
Stations may provide material in their own discretion for use on the
relevant Talk City Local Sites and Company will make good faith
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efforts to include such material on the relevant Talk City Local Sites.
Company will acquire all necessary rights and licenses required for the
operation of each Talk City Local Site as contemplated herein and for the
acquisition and use of any content and technology not provided by NBC and
the Stations. Each of the Company, NBC and the Stations will retain and own
all copyrights and other intellectual property rights in, and to, the
material which that entity contributes for use hereunder.
(b) Editorial - Editorial standards and direction regarding the inclusion
and presentation of content will come from Company, provided that Company
shall provide appropriate customization of each Talk City Local Site and
agrees to seriously consider all reasonable requests and suggestions
regarding individual Talk City local Sites which are made by NBC and the
relevant Stations. However, Company agrees that NBC's Local Director,
working with the Stations. will have significant input into the overall
editorial composition of the Talk City Local Sites which will be provided
to the participating Stations. In addition, Company agrees to abide by and
NBC Broadcast Standards and Practices which may apply to the Talk City
Local Sites, including the prohibition against distributing Adult Content.
and with the Rules and Regulations of the Federal Communications Commission
and any other governmental body having jurisdiction. For the purposes
hereof, the term "Adult Content" shall mean any material, including audio
or video material, which is pornographic or which contains nudity, explicit
sexual material or depictions of sexual acts any of which is beyond that
normally broadcast over NBC TV.
(c) Technology - Talk City will be responsible for all maintenance of the
Talk City Local Sites (including customer service, technical upkeep, etc.)
including the costs associated therewith, and NBC and its technology
partner shall be responsible for the framing of the Talk City Local Sites
as contemplated herein. Company will provide all necessary facilities,
servers, connectivity and related equipment and technology required to host
the Talk City local Sites, including any bulletin boards and chat events
requested by NBC, on Company's Internet servers. Company agrees that, at
all times during the term of this Agreement, the resources it provides to
host the Talk City Local Sites shall be sufficient to support and manage
any number of simultaneous users that wish to use the Talk City Local Sites
at any time. Company agrees to work with NBC's technology partners to
coordinate the interface between the Talk City Local Sites and the Station
Sites and to guarantee that the Talk City Local Sites will provide the
required services contemplated herein.
(d) Branding - The Talk City Link may be branded with material to be
provided by Company, subject to NBC's approval thereof. The Talk City Local
Sites will be co-branded with trademarks and other material to be provided
by
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NBC, the Stations and Company subject to the approval of each party and
provided that the size of such brands shall be left to the sole discretion
of NBC. The parties agree that the Company's brands on the Talk City Local
Sites shall be not more than fifty percent (50%) smaller than, but as
visible as, the brands of NBC and the relevant Stations. Company agrees to
abide by all requirements and guidelines which NBC and the Stations may
have regarding the use of their trademarks, service marks and other brands
and agrees that it shall make no use of such marks and brands which is not
approved in advance by NBC and the relevant Stations. Branding for all
other areas of the NBC-IN and the Station Sites shall be at the sole
discretion of NBC and the Stations.
5. Promotion. As a condition of utilizing the NBC-IN, each Station will be
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required to offer a minimum of 10 on-air promos concerning, or mentions
of, the URL address of the Station Site per week. NBC shall encourage
Stations to include information regarding the NBC-IN as part of such promos
or mentions.
6. Exclusivity. For the term hereof, NBC agrees that Talk City will be the
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exclusive provider of Chat Services on NBC-IN, provided that Company
acknowledges that nothing in this Section 6 or elsewhere in the Letter
Agreement shall restrict NBC's rights in any way in connection with NBC's
world wide web site ("XXX.xxx"), MSNBC Interactive, Xxxxxxxxxxx.xxx or any
other or future NBC related interactive (or other) services other than NBC-
IN. The term "Chat Service" shall mean an online and interactive
communications forum whereby users of NBC-IN can participate in real-time
discussions regarding local issues relevant to such users' local
communities. Notwithstanding the foregoing, Company acknowledges that (i)
other services provided by third parties may be offered to the Stations by
NBC as part of NBC-IN which provide online chat services in addition to
their primary services as long as NBC does not offer such third party
services in place of Company's Chat Service on NBC-IN or materially promote
such competing aspects of such third party services to the Stations or the
public (other than through general advertising) in connection with NBC-IN
and (ii) NBC will have no ability to prevent the Stations from placing
competing services elsewhere on their own Station Sites. Company agrees
that it will not provide Talk City's content or service to, or allow the
content or service w be connected or integrated in any way with, the
national (e.g., ABC, CBS, Xxx, XX, UPN, USA Network or Pax Net) and
regional broadcast television networks, individual broadcast television
station groups, and their affiliates and websites (the "Other
Broadcasters"). Notwithstanding the foregoing, NBC acknowledges that
Company has agreements with each of CBS Sportsline and Fox's TV GEN for
Talk City's services which pre-date the date of this Letter Agreement (the
"CBS Agreements" and the "TV GEN Agreements") and agrees that such CBS
Agreements and TV GEN Agreements shall not be considered a violation of the
terms hereof; provided, however, that Company agrees that when the term of
each CBS Agreement and TV GEN Agreement ends, Company will enter into good
faith negotiations with NBC regarding the terms of a more exclusive
arrangement between NBC and
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Company prior to entering into any additional agreements with CBS or Fox
respectively or any renewals thereof'. If Company is not able to provide
competitive, high quality, localized coverage and service for any of the
NBC TV markets, NBC will be free to contract with Company's competitors in
order to obtain an online Chat Service in such markets if Company is unable
to cure such problem within sixty(60) days of its receipt of written notice
from NBC. If NBC is unable to sign up any Station in any NBC TV market to
NBC-IN, including the Talk City Local Sites, within six (6)months following
the actual beginning of NBC's negotiations with such Station, then company
will be free to provide its Talk City service to an Other Broadcaster
within such market as long as the service is localized and intended for use
within such geographic market only.
7. Advertising Sales. Company shall be responsible for the sale of advertising
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inventory to be placed on each Talk City Local Site. Company agrees that no
advertising inventory appearing in the Talk City Local Sites will be
bartered or sold at less than prevailing market rates (as such rates are
determined by Company in its reasonable discretion and provided to NBC at
the beginning of each relevant quarter Company shall have the
responsibility of administering the contract for such advertising, paying
all necessary expenses and collecting all fees related thereto in return
for the Approved Fees described in Section 8(a) below which Approved Fees
shall be Company's sole reimbursement for all internal and external expends
related to such sale. Company acknowledges that NBC and the Stations will
be solely responsible for the sale of advertising which appears within the
area of the Station Sites which frames Talk City Local Sites and that
Company will have no right to advertising revenues received by NBC and
Stations in connection with such frames or any other portions of the
Station Sites other than the Talk City Local Sites. The parties also agree
that they will work together and coordinate advertising placements in order
to avoid conflicts between advertising displayed on the Talk City Local
Service and the area framing such sites (i.e., Coke and Pepsi will not be
displayed at the same time).
8. Financial Terms. Company agrees that it will be responsible for all costs
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and expenses associated with the creation and operation of the Talk City
Local Sites. All revenues associated with Talk City shall be split among
NBC and Company monthly as follows:
(a) Advertising Revenues - Company will pay NBC fifty percent (50%) of Net
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Revenues (as defined below) associated with the Talk City Local Sites.
Company agrees that when serving advertising inventory to the Talk City
Local Sites which will add to Net Revenue, it will use procedures which are
consistent with the general advertising placement and advertising rate
policies and procedures for the general Talk City service run-of-site
program which policies and procedures shall be approved in writing by NBC.
If Net Revenue is less than zero (i.e. a loss) then NBC will not be
obligated to be a part of the loss or compensate Company for such loss. For
purposes of
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making the calculations described above the following terms shall have the
following meanings:
(1) "Net Revenue" shall mean gross revenue charged to and received
from each advertiser or sponsor by Company for the sale of advertising
appearing to the End Users while participating in the Talk City Local
Sites, less only (i) any identifiable and actual advertising agency
commissions, external advertising sales commissions and fees which are
directly attributable to the sale of advertising for the Talk City
Local Sites (which agency commissions, ad sales commissions and fees
in total shall not exceed 20% of gross revenue), (ii) identifiable
chat host fees, provided that the scheduling of any such chat hosts
must be approved in advance by NBC and the fees therefore cannot
exceed an average rate of $20 per hour or a total of $2,000 in any
month unless approved in writing in advance by NBC, and (iii) any
identifiable and actual traffic distribution fees paid to traffic
distribution partners in connection with any Purchased End Users which
visit Talk City Local Sites, provided that (x) such distribution fees
shall be attributed to Talk City Local Sites by multiplying all such
fees attributable to Purchased End Users by the percentage which is
derived by dividing Purchased End User traffic in the Talk City Local
Sites by Purchased End User traffic in the entire general Talk City
service and (y) the distribution fee obtained in sub-section (x)
hereof shall be capped at 15% of the amount obtained by multiplying
all gross revenues attributable to the Talk City Local Sites by the
percentage obtained by dividing the number of Purchased End Users of
the Talk City Local Sites by the total number of all End Users of the
Talk City Local Sites. NBC and Company shall mutually agree upon the
measurement methods and calculations required to determine whether a
revenue or an expense is applicable to advertising or sponsorships
applicable to the Talk City Local Sites;
(2) "End-User(s)" shall mean any person or entity which accesses any
Talk City Local Sites either via Station Sites and NBC-IN or directly
from Talk City.
(3) "Purchased End Users" shall mean those End Users which access the
Talk City Local Sites via, or through, any third party internet
service provider or distributor which charges Company a per user fee
attributable to such End User.
(b) Equity - In consideration for NBC's agreement to make the Talk City
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local Sites part of NBC-IN as described herein, the Company shall issue to
NBC a warrant to purchase 641,026 shares of stock of the Company, which is
equal to approximately 3.61% of the fully-diluted number of shares of
capital stock of the Company as determined as of the date hereof assuming
full exercise of the Warrants (the "Warrant"). The total exercise price for
acquisition of each of the shares of stock covered by the Warrant shall be
$2.34. In the event that the price per share of
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Company stock sold in the Next Financing is lower than $2.34 (a "Lower
Price"), then the Company shall issue a replacement Warrant to NBC (i) with
an exercise price equal to the Lower Price, (ii) for a number of shares
equal to the number which is obtained by dividing $1,500,000 by the Lower
Price and (iii) with other terms and conditions identical to the initial
Warrant. For purposes hereof, the term "Next Financing" shall mean the
first public or private offering of equity, including convertible debt, of
the Company following the Effective Date hereof and any other public or
private offering of equity of the Company occurring within four (4) months
of such first offering. Provided however, that if the first offering is an
acquisition of the company, then "Next Financing" refers to that
acquisition and does not include additional financings of any kind
following that acquisition. And further provided that Next Financing does
not apply to bridge loan financing that is intended as an interim bridge
financing to the Next Financing and that totals less than $5 Million. The
Warrant may be exercised in whole or in part, may be exercised at any time
and shall give NBC registration rights consistent with existing
registration rights held by preferred stock holders (including 180 day
lockup upon an IPO) in connection with any capital stock that it acquires.
The consideration for the Warrants shall be NBC's agreement to enter into
this Letter Agreement. The Warrant shall terminate on the fifth anniversary
of its issuance. When exercising the Warrant, NBC shall have the right to
either (i) purchase the total number of shares of common stock which the
Warrant entitles NBC to purchase at the exercise price described above or
(ii) receive the net number of shares of common stock arising from the
difference between the market price of such stock at the date of exercise
and the exercise price for the Warrant, as established above. Recognizing
that time is of the essence, this Section 8(b) shall serve as the initial
binding agreement of the parties with respect to the Warrant, and the
parties hereto shall use their good faith efforts to complete a more formal
agreement for the issuance, sale and purchase of the Warrant (a "Warrant
Purchase Agreement"), which shall include representations, warranties and
covenants of the Company at least as extensive as those provided in the
most recent securities purchase agreement entered into by the Company and
consistent with the terms hereof; provided, however, that, if no such
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formal agreement is reached, the terms and conditions contained in this
Section 8(b) and Section 13 shall govern the relationship of the parties
hereto with respect to the Warrant.
(c) 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 general service or the Talk City Local Sites, 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 mutually agreed upon manner.
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(d) Excluded Revenue - At no time shall NBC be entitled to any revenue
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received by Company 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 Talk City Local Sites.
9. Payment and Audit Conditions. At the end of each month in which Company
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actually receives payments of revenues of the type described in Section 8,
Company shall prepare a monthly statement providing sufficient detail
regarding the source of such revenue and will deliver such statement along
with the required payment described therein to NBC no less than thirty (30)
days following such date. Company that NBC shall have the right to conduct
a reasonable audit of the relevant books and records of such party in order
to determine compliance with the terms of this Letter Agreement. The
parties agree that all revenues associated with the Talk City Sites
collected by Company and not otherwise owed to Company shall be paid
directly to NBC and not to any of the individual Stations.
10. Representations and Warranties. (a) Company represents and warrants to NBC
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and the Stations that it has the right and power to perform its obligations
and to grant the rights granted hereto, that Company's creation and
operation of the Talk City Local Sites pursuant to this Letter Agreement
will not violate any agreement or obligation between Company and a third
party or any laws or regulations and that, except for material provided by
NBC and the Stations, the content included on the Talk City Local Sites and
the Talk City Link as well as the operation of the Talk City Local Sites as
contemplated hereto will be accurate and correct, will not violate or
infringe the copyright, trademark, trade name, patent, literary,
intellectual, artistic or dramatic right, right of publicity or privacy or
any other right of any entity or person or contain any material which is
libelous, slanderous, obscene or otherwise unprotected by the United States
Constitution. Company also agrees that the Talk City Local Sites, including
any software or hardware provided by Company in connection therewith, (i)
will not violate or infringe the intellectual property rights of any third
party, (ii) will be operated and maintained with professional diligence and
skill and in a manner consistent with high industry standards, (iii) will
operate as described in this Letter Agreement, (iv) will conform to any
specifications and guidelines mutually agreed upon by the parties from time
to time during the term hereof, (v) will be free of computer viruses and
material crash bugs in any form and (vi) will not adversely affect the
operation of NBC-IN or the Station Sites in a material manner.
(b) NBC represents and warrants to Company 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 Company for inclusion on the Talk City
Local Sites, 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.
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11. Indemnity. (a) Company agrees to indemnify; defend, and hold NBC, the
Stations, their affiliates and their successors, officers, directors and
employees harmless from any and all actions, causes of action. claims,
demands; costs, liabilities, expenses including reasonable attorneys' fees)
and damages arising out of or in connection with any claim (i) relating to
Company's operation and management of the Talk City local Sites, or (ii}
relating to a breach of any of the terms, representations and/or warranties
set forth in this Letter Agreement.
(b) NBC agrees to indemnify, defend, and hold Company harmless from any and
all actions, causes of action, claims, demands, costs, liabilities,
expenses (including reasonable attorneys' fees) and damages arising out of
or in connection with any claim related to any breach of NBC's
representations and/or warranties set forth in this Letter Agreement.
(c) 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 LETTER AGREEMENT.
12. Term. (a) The initial term of this Letter Agreement shall be two (2) years
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(the "Initial Term"). Ninety {90) days prior to the end of the Initial
Term, the parties agree to negotiate in good faith regarding a possible
extension of the term hereof for an additional one (1) or two (2) years.
(b) Either party may terminate this Letter Agreement at any time and for
any reason in its sole discretion by providing the other party with written
notice of such decision, and such termination shall become effective sixty
(60) days following such other party's receipt of such notice.
(c) Either party may terminate this Letter Agreement (i) upon a material
default by the other party of any of the material terms hereof which
default is not cured within thirty (30) days following the breaching
party's receipt of a written notice regarding the default or (ii)
immediately, in its sole discretion, if any of the following occur: (x) the
commencing by the other party or the other party's intention to commence a
voluntary case under any applicable bankruptcy laws (as now or hereafter
may be in effect); (y) the adjudication that the other party is bankrupt or
insolvent; or (z) the filing by the other party or the intent to file by
the other party of a petition seeking to take advantage of any other law
providing for the relief of debtors,
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(d) If the ownership of a significant portion of the equity of Company, or
all or substantially all of the assets of Company, is transferred at any
time during the term hereof, then NBC shall have the option of terminating
this Letter Agreement on five (5) business days prior written notice if the
ownership of such equity or assets are transferred to any (i) Other
Broadcaster, (ii) any provider of Adult Content or (iii) any other party
with whom NBC reasonably chooses not to be associated, other than Company's
current shareholders. Transfer of any amount of such equity or assets shall
be deemed significant when the parties described in (i) and (ii) in the
previous sentence are involved, but such figure shall be deemed to be at
least thirty percent (30%) of Company's equity when the parties described
in (iii) in the previous sentence are involved.
(e) Until such time as the parties complete a definitive Warrant Agreement
pursuant to the terms of Section 8(b) and NBC has received all necessary
third party approvals, NBC shall have the right to terminate this Letter
Agreement for any reason by providing Company with five (5) days' prior
written notice of NBC's decision.
13. Effect of Termination. (a) Upon a termination of this Letter Agreement by
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NBC pursuant to the terms of Sections 12(b) and 12(e) or by Company
pursuant to the terms of Section 12(c), the following terms shall apply:
(i) Upon any such termination taking effect on a date which falls within
one (1) year of the Effective Date, NBC shall forfeit the right to
purchase the number of shares of Company common 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
Warrant as of the date of such termination (i.e., 50% of the number of
shares not purchased by NBC as of such date).
(ii) Upon any such termination taking effect on a date which falls after
one (1) year of the Effective Date, but prior to the end of the
Initial Term, NBC shall forfeit the right to purchase the number of
shares of Company common 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 Warrant as of the
date of such termination (i.e., 25% of the number of shares not
purchased by NBC as of such date).
(b) Upon (i) a termination of this Letter Agreement by NBC pursuant to the
terms of Sections 12(c) and 12(d) or by Company pursuant to the terms of
Section 12(b) or (ii) the completion of the Initial Term, the Warrant shall
survive termination of this Letter Agreement in full.
14. Formal Agreement. Recognizing that time is of the essence, this Letter
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Agreement shall serve as the agreement for the creation and operation of
Talk City Local Sites for a period of six (6) months. At the end of six (6)
months the parties shall reassess this
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Letter Agreement to determine whether a more detailed agreement is required
(a "Final Agreement"). If either party decides that a Final Agreement is
required, then it shall notify the other party in writing no less than
thirty (30) days following the end of the six (6) period and both parties
shall use reasonable efforts to complete the Final Agreement within a
reasonable time period; provided, however, that notwithstanding the
foregoing, if no Final Agreement is reached, the terms contained herein
shall govern the relationship between the parties for the Term .
15. NBC Link. Company agrees to include an NBC-IN logo (to be provided. by NBC
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and to include an appropriate NBC logo chosen by NBC) that is linked to the
NBC Local page on XXX.xxx on the Talk City homepage (xxx.xxxxxxxx.xxx).
16. Confidentiality. Neither party shall issue a press release or make any
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statement to the general public concerning this Letter Agreement, the NBC-IN
or the Talk City Local Sites or the existence thereof without the express
prior written consent of the other, Each party hereto agrees to hold the
terms and conditions of this Letter 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 Letter 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 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.
17. Successors. The terms of this Letter Agreement shall apply to Company and
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any of the Company's successors in interest, including any successors which
acquire the majority of the capital stock or assets of the Company.
18. Miscellaneous. This Letter Agreement constitutes the entire agreement and
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understanding of the parties relating to the subject matter hereof and
supersedes all
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prior and contemporaneous agreements, negotiations, and understandings
between the parties, both oral and written, provided that the Non-
Disclosure and Confidentiality Agreement and the NBC-Talk City Chat
Agreement regarding XXX.xxx between the patties shall remain in full force
and effect. Company shall not be permitted to assign or transfer, in whole
or in part, any of its rights or obligations hereunder without the prior
written consent of NBC, but Company acknowledges that NBC shall have the
right to freely assign or transfer, in whole or in part, any of its rights
or obligations hereunder, including the Agreement itself, to any party in
its sole discretion. Sections 9, 10, 11, 13, 16 and 18 shall survive the
completion, expiration, termination or cancellation of this Agreement no
waiver or modification of any provision of this Letter Agreement shall be
effective unless in writing and signed by both parties. Any waiver by
either party of any provision of this Letter Agreement shall not be
construed as a waiver of any other provision of this Letter Agreement, nor
shall such waiver operate as or be construed as a waiver of such provision
respecting any future event or circumstance. This letter Agreement shall be
governed by and construed under the laws of the State of New York
applicable to contracts fully executed in New York, without regard to New
York conflicts law. the parties hereby consent to and submit to the
jurisdiction of the federal and state courts located in the County of New
York.
If you are in agreement with the above terms and conditions, please indicate
your acceptance by signing in the space provided below, and return one original
to me. This Letter Agreement will be null and void if not signed within 7 days
of the date set forth above.
Very truly yours,
NBC MULTIMEDIA
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: VP NBC Interactive
------------------
ACCEPTED AND AGREED: 3/3/98
LIVE WORLD PRODUCTIONS INC.
By: /s/ Xxxxx Xxxxxxxx
-------------------
Name: Xxxxx Xxxxxxxx
--------------
Title: President
---------
2/25/98
12
Amendment to the NBC-Talk City Chat Agreement and
Letter Agreement regarding Talk City Participation in NBC-IN
This amendment ("Amendment"), dated as of July 27, 1998, is by and between
NBC Multimedia, Inc. ("NBC") and Live World Productions Inc. ("Company"), and
amends the terms of the NBC-Talk City Chat Agreement (the "XXX.XXX Agreement")
and the Letter Agreement regarding Talk City Participation in NBC-IN Letter
Agreement (the "NBC-IN Agreement"), each of which is between NBC and Company and
dated as of February 25, 1998.
In consideration of the mutual covenants herein contained, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows (all capitalized terms used herein
shall have the meanings therefor set forth in the XXX.XXX and the Letter
Agreement, whichever is relevant):
1. Section 6 of the XXX.XXX Agreement is hereby amended by the insertion of
the following at the end thereof:
"Notwithstanding the foregoing, NBC agrees that the exclusivity provisions
of this Section 6 shall not prohibit Company from entering into any
operating agreements other Series D corporate investors ("Investors") which
would otherwise be deemed to be a violation of the terms of this Section 6
in connection with Investors' purchase of Company's equity in Company's
Series D financing.
2. Section 6 of the Letter Agreement is hereby amended by the insertion of the
following at the end thereof:
"Notwithstanding the foregoing, NBC agrees that the exclusivity provisions
of this Section 6 shall not prohibit Company from entering into any
operating agreement with other Series D corporate investors ("Investors")
which would otherwise be deemed to be a violation of the terms of this
Section 6 in connection with Investors' purchase of Company's equity in
Company's Series D financing.
3. Except as specifically amended hereby, the XXX.XXX Agreement and the Letter
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, NBC and Company have duly executed this Amendment the
day and year first above written.
NBC Multimedia, Inc. Live World Productions Inc.
/s/ Xxxxxxxxxxx X. Xxxxxxxx /s/ Xxxxx Xxxxxxxx
-------------------------------- --------------------------------------
Name: XXXXXXXXXXX X. XXXXXXXX Name: Xxxxx Xxxxxxxx
-------------------------------- --------------------------------------
Date: 8/5/98 Date: 8/7/98
-------------------------------- --------------------------------------
SECOND AMENDMENT TO THE
LETTER AGREEMENT REGARDING TALK CITY
PARTICIPATION IN NBC - IN
This second amendment ("Second Amendment"), dated as of April 19, 1999, is
by and between NBC Multimedia, Inc. ("Multimedia") and Talk City, Inc. (fka
Liveworld Productions, Inc.) (the "Company") and further amends the terms of the
Letter Agreement, dated February 25, 1998 (the "Letter Agreement") regarding the
Company's participation in NBC-IN (as defined in the Letter Agreement).
In consideration of the (i) mutual covenants contained herein, (ii) other
amendments which the Company, Multimedia and National Broadcasting Company, Inc.
("NBC") are entering into, as of the date hereof, 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 to be attached
to such amendment, and (iii) for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. Section 13 of the Letter Agreement is hereby deleted in its entirety.
2. Except as specifically amended hereby, the Letter Agreement shall
remain in full force and effect and is ratified and confirmed in all
respects. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without regard to
New York conflicts law.
IN WITNESS WHEREOF, NBC and the Company have duly executed this Second
Amendment as of the date first written above.
NBC MULTIMEDIA, INC. TALK CITY, INC.
/s/ [SIGNATURE ILLEGIBLE] /s/ Xxxxx Xxxxxxxx
------------------------------- ---------------------------
By: ___________________________ By: Xxxxx X. Xxxxxxxx
Title:_________________________ Title: Chief Executive Officer and
President
