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AOL / Knot - Amended And Restated Anchor Tenant Agreement
****CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES EXCHANGE ACT OF 1933, AS AMENDED.
CONFIDENTIAL
AMENDED AND RESTATED ANCHOR TENANT AGREEMENT
This Amended and Restated Anchor Tenant Agreement (this "Agreement"), dated July 23, 1999 (the Amendment Date) but effective as of October 1, 1998 (the "Effective Date"), is made and entered into by and between America Online, Inc. ("AOL"), a Delaware corporation, with its principal offices at 22000 AOL Way, Dulles, Virginia 20166, and The Knot, Inc. ("Interactive Content Provider" or "ICP"), a Delaware corporation, with its principal offices at 462 Broadway 6th Floor, New York, New York 10013 (each a "Party" and collectively the "Parties").
INTRODUCTION
The Parties entered into an Anchor Tenant Agreement effective as of October 1, 1998 (the "Prior Agreement") and subsequently determined that it would be mutually beneficial to broaden the relationship contemplated thereby. Accordingly, the Parties have entered into this Agreement which supersedes the Prior Agreement. AOL and ICP each desires that AOL provide access to the ICP Internet Site, the Online Area and the other ICP Programming, subject to the terms and conditions set forth in this Agreement. Defined terms used but not otherwise defined in this Agreement shall be as defined on Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 PROGRAMMING AND DISTRIBUTION. Beginning on a mutually agreed
upon date(s) after the Amendment Date, AOL shall provide ICP
with the promotions and reserved programming areas set forth
on Exhibit A-1. The promotions and reserved programming areas
described on Exhibit A-1 and any other promotions provided by
AOL to ICP shall be referred to as the "Promotions." Subject
to ICP's reasonable approval, AOL will have the right to
fulfill its promotional commitments with respect to any of the
foregoing by providing ICP comparable promotional or
programming placements in appropriate alternative areas of the
AOL Network. In addition, if AOL is unable to deliver any
particular Promotion, AOL will work with ICP to provide ICP,
as its sole remedy, a comparable promotional or programming
placement. Except to the extent expressly described herein,
the exact form, placement and nature of the Promotions shall
be determined by AOL in it's reasonable editorial discretion.
ICP shall comply with the programming requirements and provide
the Content set forth on Exhibit A and AOL's provision of
Promotions in connection with any particular AOL Property
shall be conditioned upon ICP's compliance with the
programming requirements and provision of the Content set
forth on Exhibit A-1 for such AOL Property.
1.2 ONLINE AREA AND OTHER CONTENT. ICP shall work diligently to
develop, implement and maintain the Online Area and the other
ICP Programming, which shall consist of the Content described
on Exhibit A-2 hereto (the "Programming Plan"). ICP shall
produce the Online Area using AOL's "Rainman" forms, in the
case of the AOL Service, or using other technology designated
by AOL and shall develop the design of the Online Area and
other ICP Programming in consultation with AOL and in
accordance with any standard design and content publishing
guidelines provided to ICP by AOL (including, without
limitation, any HTML publishing guidelines). The ICP Internet
Site shall consist of the Content described on the Programming
Plan. ICP shall not authorize or permit any third party to
distribute any Content of ICP through the AOL Network absent
AOL's prior written approval; provided, however, that ICP
shall not be deemed to have violated this provision as a
result of Content in third party areas which either (a)
promotes the Wedding subchannel or the Online Area or (b) is
wedding-related Content and contextually relevant to the
Content in such third party area. The inclusion of any
additional Content for distribution through the AOL Network
(including, without limitation, any features, functionality or
technology) not
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expressly described on Exhibit A-2 shall be subject to AOL's
prior written approval. Each screen of the Online Area which
is linked to from the main screen of the Weddings Area shall
contain a promotional link back to the main screen of the
Weddings Area; the form and content of such link shall be
mutually agreed upon by the Parties.
1.3 LICENSE. ICP hereby grants AOL a nonexclusive worldwide
license to use, market, license, store, distribute, reproduce,
display, adapt, communicate, perform, transmit, and promote
the ICP Internet Site, the ICP Programming and the Licensed
Content (or any portion thereof) through the AOL Network as
AOL may determine in its sole discretion, including without
limitation the right to integrate Content from the ICP
Internet Site and/or ICP Programming by linking to specific
areas thereon, provided that the link to any such Content on
the AOL Network shall conform to the specifications of an ICP
Presence; provided, however, that if ICP gives AOL written
notice [****] to a particular [****] or [****] of the Licensed
Content (including the ICP Programming) by AOL [****] of the
AOL Properties listed on Exhibit A-1 or any co-branded
versions thereof and stating a reasonable basis for such
[****], AOL shall take action reasonably promptly to [****]
such [****] or [****] such [****]; provided, further, that if
ICP exercises such right more than [****] (provided, that any
subsequent [****] by ICP to a particular use [****] previously
[****] to shall not count as a subsequent exercise of such
right), AOL shall have the right, at its option, to terminate
this Agreement by giving ICP written notice thereof. In the
event of such termination during a quarter in which ICP has
made a quarterly installment of the carriage fee set forth in
section 1.5 applicable to such quarter, AOL shall have the
option of (i) making the termination effective as of the end
of such quarter or, subject to AOL's right to offset any and
all amounts due from ICP to AOL hereunder, to refund a pro
rata portion of the carriage fee (i.e., quarterly installment
paid by ICP applicable to such quarter divided by the number
of days in such quarter multiplied by the number of days after
termination remaining in such quarter).
1.4 OTHER INTERACTIVE AREAS.
1.4.1 AOL Approval. ICP shall not be permitted to establish
any "pointers" or links between the ICP Programming
and any other area on or outside of the AOL Network,
including, without limitation, sites on the World
Wide Web portion of the Internet, other than
temporary editorial links to contextually relevant
Content and links described on Exhibit A-2, without
the prior written approval of AOL. In addition, AOL
may restrict its approval (at any time) to specific
portions of Content, Products, or functionality
within a Linked Interactive Site. In such case,
establishment of the link from the ICP Programming to
the Linked Interactive Site will be subject to mutual
agreement of the Parties regarding the means by which
access will be restricted to the approved portions of
the Linked Interactive Site. All Content linked to
from ICP Programming, whether or not such links
require (or receive) AOL approval, shall be subject
to the terms of this Agreement. Any Linked
Interactive Site which is (a) described on Exhibit
A-2, (b) permanently linked to any ICP Programming,
or (c) contains Content which is material to the ICP
Programming (e.g. contains a material amount of
Content addressing a material topic of such ICP
Programming, receives a material amount of AOL Member
traffic, or is promoted prominently within such ICP
Programming) shall conform to AOL's technical
specifications and guidelines, including the
Operating Standards set forth on Exhibit F.
1.4.2 Management. ICP shall design, create, edit, manage,
review, update, and maintain the ICP Internet Site,
ICP Programming and the Licensed Content in a timely
and professional manner and in accordance with the
terms of this Agreement and shall keep the Licensed
Content current, accurate and well-organized. ICP
shall ensure that the Licensed Content within the ICP
Internet Site and ICP Programming is equal to or
better
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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than the Content distributed by ICP through any other
ICP Interactive Site in all material respects,
including without limitation, quality, breadth,
timeliness, functionality, features, prices of
products and services and terms and conditions,
except (a) to the extent inclusion of such Content
would otherwise violate this Agreement, (b) as
otherwise expressly stated on Exhibit A-2, and (c) to
the extent AOL does not approve or accept the
inclusion of, or requests specific changes to,
additional Content necessary to comply with this
sentence. Except as specifically provided for herein,
AOL shall have no obligations of any kind with
respect to the ICP Internet Site or ICP Programming.
ICP shall be responsible for any hosting or
communication costs associated with the ICP Internet
Site and ICP Programming (including any Linked
Interactive Sites), including, without limitation,
the costs associated with (i) any agreed-upon direct
connections between the AOL Network and the ICP
Internet Site or ICP Programming (including the
dedicated line for the remote managed gateway) or
(ii) a mirrored version of the ICP Internet Site. Any
Linked Interactive Sites shall be subject to the
license set forth in Section 1.2 above. ICP will
permit AOL Members to access and use any ICP
Interactive Site free of charge during the Term. AOL
Members shall not be required to go through a
registration process (or any similar process) in
order to access and use the ICP Internet Site, ICP
Programming (including any Linked ICP Interactive
Site) or the Licensed Content, other than in order to
register within ICP's gift registry and the tools and
services described on Exhibit A-2 as requiring a
registration process, and such registration processes
shall be no more burdensome than the registration
process utilized by ICP on any other ICP Interactive
Site or for non-AOL Members. During the Term and for
the [****] period after the expiration or
termination thereof, ICP shall allow AOL Members to
access and use any ICP Interactive Site on terms and
conditions no less favorable than the terms and
conditions available to other users of such ICP
Interactive Site. In the event ICP fails to comply
with any material term of this Agreement, including
without limitation ICP's obligations under this
Section 1.4 or its promotional obligations under
Section 2 and such failure continues beyond two (2)
business days after written notice thereof, AOL will
have the right (in addition to any other remedies
available to AOL hereunder) to decrease the promotion
it provides to ICP hereunder and/or to decrease or
cease any other contractual obligation of AOL
hereunder until such time as ICP corrects its
non-compliance, in which event AOL will be relieved
of the proportionate amount of any promotional
commitment made to ICP by AOL hereunder corresponding
to such decrease in promotion.
1.5 CARRIAGE FEE. On or before each of January 7, 1999, April 7,
1999, July 7, 1999 and October 7, 1999 ICP shall pay AOL Two
Hundred Fifty Thousand Dollars ($250,000). Thereafter, ICP
shall pay AOL Three Hundred Thousand Dollars ($300,000)on or
before each of January 7, April 7, July 7 and October 7
of each year during the Term; provided, however, if ICP
elects to continue the [****] set forth on Exhibit A-1.A
after the end of the second year of the Term, ICP shall pay
AOL an additional carriage fee of [****] per quarter
thereafter.
1.6 MEMBER BENEFITS. ICP will promote through the ICP Internet
Site and/or ICP Programming any special or promotional offers
made available by or on behalf of ICP through any ICP
Interactive Site or any other distribution channel. In
addition, ICP shall promote through the ICP Internet Site
and/or ICP Programming special offers exclusively available to
AOL Members ("AOL Exclusive Offers") (e.g., 10% off purchases
in ICP's Wedding gift registry store). ICP shall, at all
times, feature at least [****] AOL Exclusive Offer for AOL
Members (except as otherwise mutually agreed upon by the
Parties). The AOL Exclusive Offer made available by ICP shall
provide a substantial member benefit to AOL Members, either by
virtue of a meaningful price discount, product enhancement,
unique service benefit or other special feature. ICP will
provide AOL with reasonable prior notice of AOL Exclusive
Offers and other special offers so that AOL can, in its
editorial discretion, market the availability of such offers.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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1.7 PREMIER STATUS.
1.7.1 (a) AOL Service. So long as ICP is in compliance with
this Agreement, ICP shall be the only third party
receiving continuous promotion on the main screen of
the Weddings subchannel (or any specific successor
thereof) of the AOL Service (the "Weddings Area"),
for [****] covering the entire spectrum of topics
directly related to [****]. In addition, so long as
ICP is in compliance with this Agreement, AOL will
not enter into an arrangement with a third party to
provide a [****] area within the [****] exclusively
dedicated to covering the entire spectrum of topics
directly related to [****]. So long as ICP is in
compliance with this Agreement, the Weddings Area
shall be the primary comprehensive programming area
on the AOL Service that is dedicated to covering the
entire spectrum of topics directly related to [****];
provided, however, that this sentence shall not be
construed to limit or otherwise affect AOL's
editorial discretion within the Weddings Area (e.g.
to influence the overall programming plan of, limit
the Content that AOL may program into, or to require
AOL to include certain Content within, the Weddings
Area).
The entities set forth in Exhibit H are [****]
Providers covering the entire spectrum of topics
related to [****] that ICP represents are [****] of
ICP (the "ICP Competitors"). With respect to the ICP
Competitors, so long as ICP is in compliance with all
material terms of this Agreement, ICP will be the
[****] third-party Weddings-Only Content Provider
providing permanent Weddings-Only Content and
programming which covers the entire spectrum of
topics related to weddings on the AOL Service [****]
with the exception of wedding registries
("Exclusivity"). ICP may provide AOL with an updated
list of ICP Competitors ("Competitor List") from time
to time; provided, however, that Oxygen Media, Inc.,
Women.com Network, and iVillage, Inc. (and their
respective properties and affiliates) shall not be
deemed ICP Competitors in any event and this [****]
shall not prevent AOL from entering into contracts or
relationships with [****] Providers who are not on
the [****] (a) prior to AOL entering into such
contract or relationship or (b) in the case of ICP
Competitors added to the Competitor List subsequent
to the execution of this Agreement, prior to AOL
entering into negotiations regarding such contract or
relationship. ICP acknowledges that AOL does not
control the Content which appears within third party
content areas on the AOL Service or on interactive
sites linked to from the AOL Service; provided, that
AOL agrees that it will not [****] of the [****] by
[****] an ICP Competitor permanently within the AOL
Service on [****] which [****] an ICP Competitor
(such as, by way of example, permanently placing
within the AOL Service a button or banner which reads
[****]).
In addition, AOL shall not sell or license
advertisements to [****] to appear specifically
within the editorial and Rainman pages created by ICP
as described in Section B.1 of Exhibit A-2
(collectively, the "Editorial Packages"); provided
that this restriction shall not apply to "run of
service", "run of channel" or other non-targeted
advertising packages.
(b) AOL.com. After the Amendment Date, so long as ICP
is in compliance with this Agreement, (i) the Plan
Your Wedding Time Saver (or its successor) shall be
the primary comprehensive programming area on AOL.com
that is dedicated to covering the entire spectrum of
topics directly related to [****]; provided, however,
that this sentence
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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shall not be construed to limit or otherwise affect
AOL's editorial discretion within the Plan Your
Wedding Time Saver (e.g. to influence the overall
programming plan of, limit the Content that AOL may
program into, or to require AOL to include certain
Content within, the Plan Your Wedding Time Saver) and
(ii) ICP shall have the premier programming rights in
the Plan Your Wedding Time Saver described in Exhibit
A-1.
(c) Netscape. After the Amendment Date, so long as
ICP is in compliance with this Agreement, the
Weddings Index Page shall be the primary
comprehensive programming area on Netscape Netcenter
that is dedicated to covering the entire spectrum of
topics directly related to [****]; provided,
however, that this sentence shall not be construed to
limit or otherwise affect AOL's editorial discretion
within the Weddings Index Page (e.g. to influence the
overall programming plan of, limit the Content that
AOL may program into, or to require AOL to include
certain Content within, the Weddings Index Page) and
(ii) ICP shall have the premier programming rights on
the Weddings Index Page described in Exhibit A-1.
(d) CompuServe. After the Amendment Date, so long as
ICP is in compliance with this Agreement, the
Weddings Department of the CompuServe Service (the
"Wedding Department") shall be the primary
comprehensive programming area on the CompuServe
Service that is dedicated to covering the entire
spectrum of topics directly related to [****];
provided, however, that this sentence shall not be
construed to limit or otherwise affect AOL's
editorial discretion within the Weddings Department
(e.g. to influence the overall programming plan of,
limit the Content that AOL may program into, or to
require AOL to include certain Content within, the
Weddings Department) and (ii) ICP shall have the
premier programming rights on the Weddings Department
main screen described in Exhibit A-1.
(e) AOL Hometown. After the Amendment Date ICP will
be a primary third party (non-AOL Affiliate) provider
of Content directly related to weddings within the
"Wedding" department of Hometown AOL (or any specific
successor thereof) expressly promoted by AOL on a
continuous basis in AOL Hometown as specified herein.
1.7.2 Notwithstanding the foregoing, (and without limiting
any actions which may be taken by AOL without
violation of ICP's rights hereunder), no provision of
this Agreement shall limit AOL's ability (on or off
the AOL Network) to (i) undertake activities or
perform duties pursuant to existing arrangements with
third parties (or pursuant to any agreements to which
AOL becomes a party subsequent to the Effective Date
as a result of Change of Control, assignment, merger,
acquisition or other similar transaction); provided,
however, that [****] that, to [****], as of the
Effective Date it is [****] with [****] that would
[****] to [****] of Section 1.7.1 in any [****];
provided, further that in the event of [****] of the
[****] and a [****] of Section 1.7.1, ICP shall have
the right, [****], written notice ([****] in
reasonable [****] and the [****] of Section 1.7.1) if
[****] does [****] the [****] of Section 1.7.1 that
is the [****] of such [****]; (ii) advertise, promote
or market, or sell advertising or promotions to, any
third party Weddings-Only Content Provider, including
without limitation the ICP Competitors, or for any
wedding-related products or services, including
wedding registries; provided that, AOL will not
directly guarantee promotions or advertisements for
[****] on the [****] main screen (other than
registries), but AOL shall not be deemed to have
breached this provision by providing such promotions
and advertisements on the [****] main screen on a ROS
(i.e., run of service) basis so long as AOL [****]
any ROS promotions or advertisements for
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
5 CONFIDENTIAL 6
[****] from the [****] main screen within [****]
after AOL receives written notice from ICP thereof,
(iii) create contextual links to wedding-related
Content or editorial commentary on wedding-related
topics; or (iv) enter into arrangements with third
parties, including [****], to provide programming
and/or marketing areas dedicated to particular
wedding-related topics (such as, without limitation,
local wedding services, honeymoons, engagement rings,
financial planning, etc.); provided that, in
connection with such arrangements, AOL shall not
guarantee promotions for any [****] on the [****]
main screen other than as provided in subparagraph
1.7.2(ii).
1.7.3 AOL shall have the right to terminate AOL's
commitments set forth in Section 1.7.1 and ICP's
programming rights described on Exhibit A, in whole
or in part, if ICP is not one of [****] dedicated to
wedding-related topics and/or the Content on the ICP
Programming is not commensurate with such market
position, as determined by evaluating ICP, the ICP
Internet Site and/or the ICP Programming, as a whole,
based on relevant criteria including the following:
(a) based on a mutually-approved (which approval
shall not be unreasonably withheld or delayed)
cross-section of third-party reviewers who are
recognized authorities in such market and (b) with
respect to all material quality averages or standards
in such industry, including each of the following:
(i) scope and quality of Content, (ii) scope,
selection and pricing of products and services, (iii)
quality and brands of products and services, (iv)
customer service and fulfillment associated with the
marketing and sale of products and services and (v)
user traffic, as measured by page views, and audience
reach, as measured by share or percentage of Internet
online users as reported by Media Metrix or similar
organization reasonably determined by AOL.
2. PROMOTION. Each Party shall cooperate with and reasonably assist the
other Party in supplying material for marketing and promotional
activities. ICP shall perform the promotional obligations set forth on
Exhibit E attached hereto.
3. REPORTING; PAYMENT.
3.1 USAGE AND OTHER DATA. AOL shall make available to ICP a
monthly report specifying for the prior month aggregate usage
and Impressions with respect to ICP's presence on the AOL
Network, which are similar in substance and form to the
reports provided by AOL to other content partners similar to
ICP. ICP will supply AOL with quarterly (or monthly upon
request by AOL) reports which reflect total impressions by AOL
Members to the ICP Internet Site and any Linked ICP
Interactive Site during the prior month, total impressions by
all users to the ICP Internet Site and any Linked ICP
Interactive Site during the prior month and the number of and
dollar value associated with the transactions involving AOL
Members and aggregated registration information (which shall
be considered Confidential Information) obtained from AOL
Members at the ICP Internet Site or Linked ICP Interactive
Site during the period in question. ICP represents that all
URLs related to the ICP Internet Site are listed on Exhibit
A-2 and ICP shall provide AOL with an update of such list
promptly upon any change thereto. ICP shall provide detailed
information to AOL regarding (i) AOL Advertisements sold by
ICP or its agents and (ii) any advertising or paid promotional
activity on the ICP Internet Site and any Linked ICP
Interactive Sites. AOL shall provide detailed information to
ICP regarding any AOL Advertisements sold by AOL or its agents
which give rise to Advertising Revenues. In reporting any
advertising arrangement, each Party shall indicate the name of
the advertiser, the terms of the advertising arrangement and
the amount paid (or to be paid) to the Party or its agents.
3.2 PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a quarterly
report documenting its compliance with any promotional
commitments it has undertaken pursuant to this Agreement in
the form attached as Exhibit E hereto.
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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3.3 PAYMENT SCHEDULE. Except as otherwise specified herein, each
Party agrees to pay the other Party all amounts received and
owed to such other Party as described herein on a quarterly
basis within sixty (60) days of the end of the quarter in
which such amounts were collected by such Party. The first
quarter for which payment is to be made shall (i) begin on the
first day of the month following the month of execution of
this Agreement and (ii) include the portion of the month of
execution following the Effective Date (unless this Agreement
was executed on the first day of a month, in which case the
quarter shall be deemed to begin on the first day of such
month).
3.4 WIRED PAYMENTS. All payments by ICP hereunder shall be paid in
immediately available, non-refundable U.S. funds wired to the
"America Online" account, Account Number [****], or such other
account of which AOL shall give ICP written notice.
4. ADVERTISING AND MERCHANDISING
4.1 ADVERTISING SALES. AOL owns all right, title and interest in
and to the advertising and pr...
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