Preview of our top selling Warrant Agreement
AltaVista / Healthcentral.com - Web Site Promotion & Warrant Agreement
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EXECUTION COPY
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THIS AGREEMENT ("Agreement") is made and effective as of September 27, 1999 (the "Effective Date") by and between AltaVista Company, a Delaware corporation with principal business offices at 529 Bryant Street, Palo Alto, California 94301 (together with its Affiliates, "AltaVista"), and HealthCentral.com, Inc., a California corporation with principal business offices at 6001 Shellmound St., Suite 800, Emeryville, California 94608 ("HealthCentral").
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WHEREAS, HealthCentral is the owner and provider of health related Web sites, which provide access to health content and information appearing on the Internet at www.HealthCentral.com. For purposes of this Agreement, HealthCentral Content, as defined herein, shall appear on Web pages on the AltaVista Platforms, as defined herein, with both AltaVista brand features and HealthCentral brand features; and
WHEREAS, as used in this Agreement, "Web" refers to the World Wide Web, that part of the Internet designed to allow easier navigation of the network of computers through the use of graphical user interfaces and hypertext links between different addresses. A "Web page" or "page" or a "Web site" permits an end user to view and interact with companies on the Web by displaying the content through the aforementioned graphical interfaces. "Internet" means a global network of interconnected computer networks, each using the Transmission Control Protocol/Internet Protocol and/or such other standard network interconnection protocols as may be adapted from time to time; and
WHEREAS, AltaVista also maintains and/or manages certain Web pages which may be delivered to users worldwide via email, desktop "channels" or Internet "push" technologies which may incorporate content supplied by AltaVista by third parties for the purpose of providing value to AltaVista users and providing access to the content, products and/or services of such third parties; and
WHEREAS, AltaVista is also in the business of developing Web-page platforms, providing Web-based search capabilities, and developing and serving other Web sites on behalf of its customers and business partners; and
WHEREAS, AltaVista and its Affiliates customarily enter into third party agreements that provide for customization of one or more AltaVista Platforms. The customized AltaVista Platforms may be branded using third parties' names, or co-branded with any combination of AltaVista's, AltaVista's Affiliates and third parties' names. Pursuant to the terms and conditions of this Agreement, through the process of AltaVista Platforms customization, any amount of content, advertising or other features may be modified, added or deleted; and
CERTAIN INFORMATION ON THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WHEREAS, AltaVista desires to license the HealthCentral Content from HealthCentral for its AltaVista Platforms and AltaVista and HealthCentral wish to distribute the Content through one or more AltaVista Platforms.
NOW THEREFORE, in consideration of the agreements, covenants and conditions set forth herein, intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
Whenever used in this Agreement, the following terms will have the following specified meanings:
1.1 "Above the Fold" means situated within the portion of a page that is designed to be visible on a standard computer screen at a resolution of [*] (such resolution to be updated by AltaVista at its sole discretion in good faith and to be consistent with the design of the AltaVista Platform throughout the Term as appropriate) without requiring the user to scroll horizontally or vertically through the page.
1.2 "Advertising Impression" means (i) a banner or other GIF advertisement for HealthCentral and/or any of its Affiliates; (ii) a Text Link Advertisement to the HealthCentral Site; or (iii) a Contextual Advertising Unit.
1.3 "Affiliate" means, with respect to a party, any Person that, directly or indirectly, Controls, or is Controlled by, or is under common Control with, such party.
1.4 "AltaVista Health Channel" means that area of the AltaVista Platform that is accessed from the "Health" link (or other comparable link regardless of name that provides access to the AltaVista Health Channel) on the AltaVista Platform Home Page.
1.5 "AltaVista Health Channel Home Page" means with respect to the AltaVista Health Channel, the first page that is displayed to the user within the Channel.
1.6 "AltaVista Marks" means the AltaVista trademarks, service marks, logos and domain names.
1.7 "AltaVista Platform" means a generic set of domestic Web pages, and any domestic Mirror Site, that may also function together as a Web site. The AltaVista Platforms may contain any or all of the following domestic sites: an Internet index, a search tool, advertising, or any other feature that might be desirable on a Web homepage. As used herein, the term "AltaVista Platforms" shall include generic and customized AltaVista Platforms, including but not limited to domestic sites and channels, such as an AltaVista.com, My AltaVista, AV.com, Microav.com, the AltaVista Channels, My AV, Shopping.com and Zip2.com.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
1.8 "AltaVista Search Results Page" means the page on the AltaVista Platform containing the results of a search query entered by a User.
1.9 "AltaVista Platform Home Page" means with respect to the AltaVista Platform, the page that is displayed to the user when the URL www.altavista.com is entered.
1.10 "Co-Branded Page" means a Web page that has HealthCentral Content and/or the Health Central Mark in the Masthead.
1.11 "Contextual Advertising Unit" means an advertisement whose subject matter is relevant to the content to which it is adjacent and that links to a relevant page on the HealthCentral Site.
1.12 "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether by contract or through the ownership of voting securities, including the ownership of more than fifty percent (50%) of the equity, partnership or similar interest in such Person.
1.13 "Damages" means judgments, losses, deficiencies, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses).
1.14 "HealthCentral Competitors" means the companies listed on Schedule 1.14 which are directly competitive to the business of HealthCentral. - -------------
1.15 "HealthCentral Content" means the content set forth on Schedule
-------- 1.15, as may be amended from time to time by mutual agreement of the Parties. - ----
1.16 "HealthCentral Mark" means the mark set forth on Schedule 1.16.
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1.17 "HealthCentral Site" means the site currently located at healthcentral.com any healthcentral.com network sites, any Mirror Site and any site owned or controlled by HealthCentral or its Affiliates that provides health related content and/or information.
1.18 "including" or "include," when used herein, shall be deemed to be followed by the words "without limitation."
1.19 "Masthead" means the top area of each page within the AltaVista Health Channel containing the branded name for the Channel. An example of the current Masthead is set forth on Schedule 1.19.
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1.20 "Mirror Site" means an Internet site that (a) contains the exact form and content of a site, (b) is located at a geographic location distinct from a site, and (c) is created for the purpose of improving the performance of and accessibility to a site.
1.21 "Other AltaVista Channels" means channels other than the Health Channel on the AltaVista Platform that, in AltaVista's sole discretion, relate to health, including but not limited to, children, family, sports, fitness, nutrition, men and women.
1.22 "Party" or "Parties" means each of AltaVista and any of its Affiliates and HealthCentral and any of its Affiliates.
1.23 "Person" means any individual, corporation, partnership, limited liability company, trust, association or other entity or organization, including any governmental or political subdivision or any agency or instrumentality thereof.
1.24 "Search Partner Tile" means an advertisement on the AltaVista Search Results Page of approximately 88 pixels by 31 pixels.
1.25 "Start Date" means the earlier of (a) launch of the AltaVista Health Channel and (b) January 15, 2000.
1.26 "Term" shall have the meaning set forth in Section 10.1.
1.27 "Text Link Advertisement" means a text link on the AltaVista Platform that is not located or placed within any health content provided by HealthCentral.
1.28 "Third Party" means any Person that is not a party hereto or a wholly owned Affiliate of a party hereto.
1.29 "User Data" means all data entered by a user or otherwise relating to a user's experience on a site, including demographic data and e- commerce activity.
ARTICLE II
CO-BRANDING AND DESIGN
2.1 Masthead. HealthCentral hereby grants to AltaVista a non-
-------- exclusive, worldwide, royalty free, license for the Term to incorporate the HealthCentral Mark within the Masthead. AltaVista shall display the Masthead on every page of the AltaVista Health Channel; provided, however, that the
-------- HealthCentral Mark shall only be included in the Masthead with respect to all AltaVista Health Channel pages that feature HealthCentral Content. [*] on the design of the Masthead, and the incorporation of the HealthCentral Mark within the Masthead.
2.2 Channel Design. During the Term of this Agreement, [*]
-------------- the visual appearance of (a) the AltaVista Health Channel Home Page and (b) any page within the AltaVista Health Channel containing HealthCentral Content; provided, however, AltaVista shall in good faith make the final determination - -------- with respect to design decisions (except the initial design), and AltaVista shall make reasonable efforts that such design shall be consistent with the rest of the AltaVista Platform.
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
2.3 Return Links. HealthCentral shall display a return link,
------------ subject to design specifications, to the AltaVista Health Channel on: (a) all pages of the HealthCentral Site viewed by a user who originated from a page on the AltaVista Health Channel; and (b) any and all subsequent pages of the HealthCentral Site viewed by such user. Such link shall return the user to the page on the AltaVista Health Channel from which the user initially linked to the HealthCentral Site. The parties shall agree on the minimum size of such return link.
ARTICLE III
USE OF HEALTHCENTRAL CONTENT
3.1 Grant of License. HealthCentral hereby grants to AltaVista a
---------------- non-exclusive, worldwide, royalty free license for the Term, to display and distribute the HealthCentral Content on the AltaVista Health Channel, and to make such copies as are necessary to make such display and distribution. HealthCentral shall have the obligation, at its own expense, to obtain all necessary Third Party rights and licenses to make the foregoing grant of rights to AltaVista.
3.2 Transmission and Timeliness of Content. The protocols for
-------------------------------------- transmitting the HealthCentral Content from HealthCentral to AltaVista are set forth on Schedule 3.2. HealthCentral shall ensure that substantially all of the
------------ HealthCentral Content is delivered on a timely basis such that AltaVista is in possession of the HealthCentral Content, (a) prior to such HealthCentral Content being provided to any Third Party, and (b) [*] after such HealthCentral Content is displayed on the HealthCentral Site.
3.3 Use of Content. AltaVista shall cooperate with HealthCentral
-------------- regarding the placement and use of the HealthCentral Content, provided that
-------- AltaVista shall make the final determination regarding any Content placement and use issues. AltaVista shall have no obligation to use every item of the HealthCentral Content, and may edit individual HealthCentral Content items in its sole discretion within the guidelines of Schedule 3.3 (which shall be
------------ updated and mutually agreed among the Parties every ninety (90) days throughout the Term of this Agreement) in order to meet AltaVista Platform format requirements; provided, however, AltaVista shall have the right to edit the headlines and develop abstracts and summaries of any HealthCentral Content.
3.4 Editorial Control of the Content. HealthCentral shall have
-------------------------------- complete editorial control over the topics covered by, and creation of, the HealthCentral Content, provided that AltaVista shall have reasonable input into
-------- the selection of topics covered by HealthCentral.
3.5 Archive. During the Term, and subject to the terms of any Third
------- Party content license agreements with HealthCentral, AltaVista shall have the right to archive any of the HealthCentral Content including current and future, provided by HealthCentral to AltaVista hereunder, as provided in Schedule 3.3,
------------ and to provide users with the ability to search for and retrieve HealthCentral Content that was previously displayed on the AltaVista Health Channel. AltaVista shall destroy such archived content promptly following the expiration or termination of
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this Agreement. AltaVista shall promptly comply with any good faith request by HealthCentral to remove archived HealthCentral Content as necessary for HealthCentral to comply with its Third Party agreements.
3.6 Content Quality. HealthCentral shall use reasonable efforts to
--------------- ensure that, throughout the Term, the quality of the HealthCentral Content is comparable to the content offered on the sites of the HealthCentral Competitors (including, timeliness,); provided that the quality of the HealthCentral Content shall always be at least as high as it exists as of the Effective Date. HealthCentral acknowledges that a breach of this Section 3.6 shall give AltaVista a right to terminate this Agreement; provided, however, that HealthCentral may have an opportunity to cure such breach within seventy five (75) days after receiving a termination notice from AltaVista.
3.7 Exclusivity. HealthCentral shall be the exclusive health content
----------- provider for the AltaVista Health Channel and throughout the AltaVista Platform;
---------------------------------- provided that in the event that AltaVista requests health-related content not - -------- then-currently provided by HealthCentral, AltaVista shall provide HealthCentral with a reasonably detailed written description of the content requested ("Content Notice'). HealthCentral shall have a [*] to provide such content. In the event HealthCentral is unable to make such content available to AltaVista commencing on or before [*], AltaVista may obtain such content from a Third Party (including any of the HealthCentral Competitors listed on Schedule 1.14),
------------- and thereafter (i) HealthCentral shall have no further right to provide the content requested in the Content Notice, and (ii) AltaVista shall have no further obligation to HealthCentral with respect to such content AltaVista shall in good faith use its reasonable efforts to integrate any content received from a Third Party into the AltaVista Health Channel consistent with the then current design of the AltaVista Health Channel.
In the event AltaVista creates, develops, and maintains additional channels with Third Parties within the AltaVista Platform, which contain health related content, AltaVista shall in good faith use its reasonable efforts to utilize content generated by HealthCentral for such other channels, unless such content is not substantially similar to the content offered by such Third Party.
AltaVista shall have the right to incorporate any and all headline health related news stories delivered to AltaVista by nationally or internationally recognized newspaper, news source, or media company, on the AltaVista Health Channel so long as such content is not available by HealthCentral on a timely basis.
3.7 International Opportunities. The parties hereby acknowledge that
--------------------------- the terms and conditions of this Agreement shall relate only to the domestic versions of AltaVista Health Channel and the AltaVista Platform. However, as AltaVista develops and operates international Web sites or channels with respect to international content, information, search or otherwise, AltaVista shall in good faith use its reasonable efforts to provide HealthCentral an opportunity to first negotiate the terms and conditions of a business relationship with the AltaVista entity or
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division operating and/or developing such Web sites. In the event HealthCentral is not able to negotiate the terms and conditions with such AltaVista entity, HealthCentral shall have a right of first refusal to at least match the terms and conditions and breadth and depth of content, including, but not limited to amount of content, timeliness of content, quality of writing, and topics covered, offered by a Third Party; provided, however, if HealthCentral cannot at least match such terms, conditions, and content, the AltaVista entity or division operating and/or developing such international Web site may enter into an agreement with such Third Party. This Section 3.7 in its entirety is subject to the approval of each AltaVista entity or division operating and/or developing any such Web sites and AltaVista shall use its best efforts to obtain such approvals within thirty (30) days of the Effective Date.
ARTICLE IV
HEALTHCENTRAL ADVERTISING
4.1 Contextual Advertising Units. Each Co-Branded Page on the
---------------------------- AltaVista Health Channel shall contain at least one Contextual Advertising Unit. The design, size and placement of the Contextual Advertising Units shall be subject to mutual approval of the Parties; provided, that such Units shall
--------- always be displayed Above the Fold and that such Units shall contain up to three links. These links may connect to any web site in the HealthCentral.com network. In addition, such links may contain at most one (1) sponsorship textual attribution with respect to only such sponsors name (i.e. "sponsored by [name of company or name of brand]); provided, however, that such links shall
-------- not (i) be allowed to appear on the AltaVista Health Channel Home Page, and (ii) link directly to such sponsor. In connection with any sponsorship textual attribution, (i) AltaVista shall every ninety (90) days during the Term of this Agreement provide a list of [*] that HealthCentral may not be allowed to sell any textual sponsorships to such sponsors and (ii) HealthCentral shall provide AltaVista with fourteen (14) days notification prior to any sponsorship placement of any and all sponsors in which HealthCentral intends to sell any textual sponsorships.
4.2 Allocation of Advertising Impressions During Term. AltaVista
------------------------------------------------- shall use its best efforts to display HealthCentral Advertising Impressions evenly on a monthly basis pursuant to the following schedule during the Term:
(a) During the first twelve months after the Start Date ("Year
1"), [*] Advertising Impressions;
(b) During the second twelve month period after the Start Date
("Year 2"), [*] Advertising Impressions; and
(c) During the third twelve month period after the Start Date
("Year 3"), [*] Advertising Impressions.
4.3 Allocation of Advertising Impressions Across the AltaVista
---------------------------------------------------------- Platform. - --------
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(a) Year One. The guaranteed Advertising Impressions during
--------
Year 1, set forth in Section 4.2 above, shall be distributed
among the AltaVista Home Page, the AltaVista Search Results
Page, the AltaVista Health Channel, and Other AltaVista
Channels as follows:
AltaVista Home Page
-------------------
(i) Advertisement GIFS and text links: [*] impressions
AltaVista Search Results Page (when "Health" or health-
------------------------------------------------------
related keywords are included as a query):
-----------------------------------------
(i) Banners: [*] impressions
(ii) Search Partner Tiles: [*] impressions
AltaVista Health Channel:
------------------------
(i) Banners: [*] impressions
(ii) Contextual Advertising Units: [*] impressions
Other AltaVista Channels or Directories (categorized search
-----------------------------------------------------------
result listings):
-----------------
(i) Banners: [*] impressions.
(b) Year Two. The number and distribution of Advertising
--------
Impressions during Year 2 shall be [*] of those set forth
above in Section 4.3(a) for Year 1, subject to revision by
mutual agreement of the Parties.
(c) Year Three. The number and distribution of Advertising
----------
Impressions during Year 3 shall be [*] of those set forth
above in Section 4.3(b) for Year 2, subject to revision by
mutual agreement of the Parties.
4.4 Accounting. In determining the number of Advertising Impressions
---------- displayed by AltaVista pursuant to Section 4.2:
(a) A minimum of [*] of the Advertising Impressions shall be from
pages containing only one Advertising Impression;
(b) A maximum of [*] of the Advertising Impressions may be from pages
containing two Advertising Impressions;
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(c) A maximum of [*] of the Advertising Impressions may be from pages
containing three or more Advertising Impressions;
(d) Additional Advertising Impressions (beyond those permitted by
Sections 4.4(b) and (c) from pages with more than one Advertising
Impressions may not be credited towards the make up of any
shortfalls (as provided for in Section 7.3) or the Performance
Thresholds in Section 8.2.
(e) The inclusion of the HealthCentral Mark in the Masthead pursuant
to Section 2.1 shall not be counted as an Advertising Impression.
4.5 Location. All HealthCentral Advertising Impressions shall appear
-------- above the Fold.
4.6 Monitoring and Reporting; Reallocation. AltaVista shall monitor
-------------------------------------- the number of HealthCentral Advertising Impressions, and provide written reports thereof, including number of impressions and number of visitors to HealthCentral, on a weekly basis, as appropriate, consistent with AltaVista's reporting policies. AltaVista and HealthCentral shall mutually agree to on any plans to reallocate Advertising Impressions between banners and Contextual Advertising Units and to reposition Advertising Impressions within the AltaVista Platform, where available, as necessary in order to at least meet the requirements of Section 4.2 and maximize the performance hereunder.
4.7 Advertising of HealthCentral Competitors. AltaVista shall not
---------------------------------------- display any advertisements of any HealthCentral Competitor on the AltaVista Health Home Page or any page throughout the AltaVista Platform, containing HealthCentral Content. Subject to the foregoing, there shall be no other limit on the type or number of advertisements that AltaVista may display within the AltaVista Platform, including within the AltaVista Health Channel HealthCentral may update the list of HealthCentral Competitors with other companies competitive to HealthCentral once every 3 months during the Term, upon thirty (30) days notice to AltaVista, provided that the list may never contain more
-------- than seven (7) companies.
4.8 Deep Links to HealthCentral Site. AltaVista shall configure the
-------------------------------- navigation of the AltaVista Health Channel such that no more than the third click from the AltaVista Health Homepage will bring a user to a related page on the HealthCentral Site.
ARTICLE V
E-COMMERCE
5.1 E-commerce Business Model. The Parties shall mutually agree to
------------------------- jointly create and develop an e-commerce business model with respect to the AltaVista Health Channel within ninety (90) calendar days of the Effective Date [*].
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ARTICLE VI
DATA RIGHTS
6.1 AltaVista Data. AltaVista shall own all demographic and e-
-------------- commerce User Data collected on the AltaVista Health Channel. AltaVista shall make available to HealthCentral, subject to AltaVista's privacy policies and applicable law, and Third Party obligations, User Data from those pages of the AltaVista Health Channel containing HealthCentral Content, solely for HealthCentral's own use. HealthCentral shall not sell, license or otherwise distribute such User Data to any Third Party.
6.2 HealthCentral Data. HealthCentral shall own all User Data
------------------ collected on the HealthCentral Site.
ARTICLE VII
FEES AND PAYMENTS
7.1 Initial Fee. Within seven (7) calendar days after the Effective
----------- Date and upon mutual agreement of the initial AltaVista Health Channel design, HealthCentral shall pay AltaVista a non-refundable initial fee (the "Initial Fee") of one million dollars ($1,000,000). In no event shall the Initial Fee be paid after September 30, 1999.
7.2 Annual Fees. During the Term, HealthCentral shall make annual
----------- cash payments to AltaVista as set forth below. Such payments for each year indicated are payable in equal monthly installments during that year, as follows:
(a) During Year 1, [*];
(b) During Year 2, [*]; and
(c) During the Year 3, [*].
The first such payment shall be due on the Start Date, and subsequent payments shall be due on the first day of each month thereafter.
7.3 Fee Reduction. In the event that AltaVista delivers [*] or less
------------- of the guaranteed number of Advertising Impressions set forth in Sections 4.2 and 4.3 (prorated evenly on a monthly basis over the twelve (12) month period), for the first six month period or second six month period of any year, then AltaVista shall have seventy-five (75) calendar days following the end of such six month period to make up the shortfall. For purposes of this Section, "to make up the shortfall" shall mean that AltaVista shall have delivered one hundred (100%) percent of the prorated number of Advertising Impressions due for such
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seventy-five day period, plus additional Advertising Impressions in an amount equal to the number of Advertising Impressions which AltaVista failed to deliver during the six month period in question. In the event that AltaVista has failed to make up the shortfall, then the monthly fees payable during the six months following the seventy-five (75) day period shall be reduced by [*].
In the event AltaVista makes up any shortfall and as a result, the guaranteed number of Advertising Impressions is greater than [*] and less than one hundred (100%) percent during any six month period and corresponding cure period (the "Shortfall Spread"), the Shortfall Spread shall be carried forward to any following period on a cumulative basis with potential corresponding fee reduction or termination (as provided for above) until AltaVista makes up any such shortfall. For example, if AltaVista is at [*] of target (as set forth in Schedule 8.2) for each of two six month periods and the shortfall was not cured, and therefore the Shortfall Spread of [*] in the first six (6) months is added to the Shortfall Spread of [*] in the second six (6) months to amount to a cumulative total of a [*] Shortfall Spread, as a result the fees are decreased as provided for in this Section 7.3.
During any period in which the payments have been reduced as provided for above, if AltaVista shall make up the shortfall, upon making up any and all shortfalls, all payments, including former payments due during such period and any subsequent payments, due hereunder shall be restored to the original payment structure.
7.4 Late Payments. All amounts owed hereunder not paid when due and
------------- payable will bear interest from the date such amounts are due and payable at the lesser of (a) 1.5 percent per month and (b) the maximum allowable rate of interest in the State of California for transactions between sophisticated commercial parties.
7.5 Taxes. In addition to the amounts set forth above, HealthCentral
----- shall pay to AltaVista or to the relevant taxing authority, as appropriate, [*] applicable sales, use, goods and services, value added or other taxes payable under this Agreement (other than taxes levied or imposed on AltaVista's income). In all cases, the amounts due under this Agreement will be [*].
7.6 Advertising Revenue. Any and all advertising on the Co-Branded
------------------- Pages shall be sold by AltaVista and the revenue generated by such advertising shall be retained solely by AltaVista (except for the textual sponsorship, which can be sold by HealthCentral).
ARTICLE VIII
EQUITY GRANT AND WARRANTS
8.1 Equity Grants. At the end of each of Year 1, Year 2, and, if
------------- this Agreement is not terminated earlier in accordance with Section 10.2(a), Year 3 of the Agreement, HealthCentral shall issue AltaVista shares of common stock of HealthCentral (the "HealthCentral Common Stock") with the number of shares issued at the end of each such Year
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equal to the quotient of [*] divided by the Year End Price for such Year. The "Year End Price" means: (i) in the event that the HealthCentral Common Stock is publicly traded on a nationally recognized exchange or on the Nasdaq National Market on the last day of such Year, the average closing price per share of the HealthCentral Common Stock for the ten (10) trading days prior to the last day of such Year, or (ii) in the event the HealthCentral Common Stock is not publicly traded, the fair market value of the HealthCentral Common Stock as of the last day of such Year, as determined in good faith and substantiated by the Board of Directors of HealthCentral; provided, however,
-------- that notwithstanding the previous formula in no event shall the shares issued to AltaVista at the end of such Year be greater than [*] shares or less than [*] shares (except in the case of Year 3 if there is an early termination pursuant to Section 10.2(a) in which case no shares will be issued).
8.2 Warrants. On the last day of each of Year 1, Year 2, and if this
-------- Agreement is not terminated in accordance with Section 10.2(a), Year 3 (each of which shall be an "Issuance Date"), HealthCentral shall grant to AltaVista a warrant (collectively, the "Warrants") to purchase that number of shares of HealthCentral Common Stock as set forth for such Year on Schedule 8.2 (up to a
------------ maximum of [*] shares) provided that AltaVista has met the applicable
-------- performance threshold (the "Performance Thresholds") set forth on Schedule 8.2
------------ for such Year. Each such Warrant shall be exercisable for a period of sixty days after the applicable Issuance Date, and the exercise price per share for the Warrants issued, if any, shall be as follows: (i) [*] for a Warrant issued during or at the end of Year 1; [*] for a Warrant issued during or at the end of Year 2; and [*] for a Warrant issued during or at the end of Year 3. Each of the Warrants granted to AltaVista shall provide AltaVista with a right to make a cashless exercise of such Warrants.
8.3 Registration Rights. The Company will use its best efforts to
------------------- amend the First Amended and Restated Investors' Rights Agreement dated August 27, 1999 between the Company and certain investors, a copy of which is attached as Exhibit 8.3 (the "Investor Rights Agreement") to include the shares of
----------- HealthCentral Common Stock (including shares issuable pursuant to Section 8.1 or 8.2, if any) as Registrable Securities thereunder solely for the purpose of granting AltaVista piggy back registration rights (the "Piggy Back Registration Rights") for such shares, subject to AltaVista's adherence to all the terms of the Investor Rights Agreement, as amended, including but not limited to market standoff provisions and cutback provisions regarding the number of shares that AltaVista may sell in any such offering. If the Company is unable to amend the Investor Rights Agreement to include the shares issued and issuable to AltaVista, then the Company shall hereby grant AltaVista piggyback registration rights with respect to any shares of HealthCentral Common Stock to be issued to AltaVista during the Term of this Agreement, whether in the form of an equity grant or an exercise of Warrants. Pursuant to such Piggy Back Registration Rights, AltaVista shall have the right to include all or any portion of the shares of HealthCentral Common Stock then held by AltaVista in any Registration Statement on Form S-1 or S-3 filed by HealthCentral with the Securities and Exchange Commission during the Term of this Agreement and for a period of one (1) year after termination of this ...
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