Interactive Marketing & Software Distribution Agreement

EXHIBIT 10.22





EXECUTION VERSION





INTERACTIVE MARKETING AND SOFTWARE

DISTRIBUTION AGREEMENT



This interactive marketing and software distribution agreement (this "Agreement") is made and entered into as of January 28, 2000 (the "Effective Date") between America Online, Inc. ("AOL") and Netcentives Inc. ("Netcentives"). Each of Netcentives and AOL may be individually referred to herein as a "Party," and Netcentives and AOL may be collectively referred to herein as the "Parties." Each of Exhibits A, B and C hereto (collectively, the "Exhibits") is hereby made part of this Agreement, and any reference to this Agreement shall be deemed to include the Exhibits hereto.



1. Good Faith Negotiation. Promptly following the Effective Date, the Parties shall in good faith negotiate the terms and conditions of the Supplemental Agreements (as defined in Exhibit A), based upon the parameters set forth in Exhibit A hereto, and shall attempt to execute the Supplemental Agreements within the time frame set forth in the Exhibit A. The Parties shall use commercially reasonable efforts to negotiate and execute the Supplemental Agreements within twenty (20) business days following the Effective Date.



2. Binding Nature. This Agreement, together with Exhibits hereto (and the terms and conditions thereof), is intended to create a binding agreement between the Parties and shall be binding on and enforceable against the Parties in all respects.



3. Covenants. Netcentives shall permit AOL and its consultants and professional advisors to conduct, and shall assist AOL and its consultants and professional advisors in obtaining an understanding of Netcentives' technology. Any meetings related thereto shall be conducted during normal business hours, upon reasonable terms and conditions mutually agreed upon by AOL and Netcentives and upon prior reasonable notice to Netcentives.



4. Grant to AOL Affiliates. Any of the rights granted to and obligations of AOL under this Agreement may also be exercised or performed by any AOL affiliate or subsidiary; provided that such AOL affiliate or subsidiary agrees to be bound by all of the applicable provisions hereof governing such exercise or performance.



5. No Joint Venture. Neither Party shall make any warranties or representations, or assume or create any obligations, on the other Party's behalf except as may be expressly permitted hereunder or in writing by such other Party. Each Party shall be solely responsible for the actions of all its respective employees, agents and representatives.



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6. Confidentiality. Without the express written consent of the other Party hereto, neither Party nor any of its employees, officers, directors, or agents shall disclose the existence of this Agreement, any of the terms hereof, nor any other Confidential Information to any third party except: (i) as required by law; or (ii) to such party's attorneys, accountants, other advisors, officers, directors and equity holders, as applicable, in order to facilitate the fulfillment of such Party's obligations hereunder; provided, however, that any such third party agrees to be bound by the confidentiality provisions hereof. Any publicity relating to this Agreement (including, without limitation, the timing of any release of any such publicity) must be approved in advance by both Parties (any such approval not to be unreasonably withheld or delayed). For purposes of this Agreement, "Confidential Information" means any information which is disclosed during the Disclosure Period (as defined below) and which is or should be reasonably understood to be confidential or proprietary to the disclosing Party (the "Discloser") (which such information may include without limitation information concerning Discloser's business, products, services, content, finances, subscribers, users, tools, source code, product designs and plans, customer lists and other marketing and technical information and other unpublished information). The Parties agree that confidential or proprietary information conveyed in written or other tangible form shall be deemed "Confidential Information" under this Agreement and/or any Supplemental Agreement if it is so designated by Discloser by prominently marking it with a "confidential," "proprietary" or similar legend. Information disclosed in other than a tangible form shall be treated as Confidential Information if before its disclosure Discloser advises Recipient that it will be disclosing Confidential Information and within thirty (30) days after disclosure, Discloser summarizes the Confidential Information in writing and, marks it "Confidential" and delivers it to Recipient. Recipient shall make use of the Confidential Information only for the purpose of discussing and evaluating the proposed business relationship between the Parties set forth herein. Recipient's duty to hold Confidential Information in confidence shall expire two (2) years after the later of (i) the end of the Term (as defined in Section 17 of Exhibit A) and (ii) any Supplemental Year as defined in the "Definitions" Section of Exhibit A hereto. "Confidential Information" shall not include information (a) already lawfully known to or independently developed by the receiving Party (without the use of the Confidential Information of Discloser), (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party.





7. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement. In addition, Netcentives hereby represents that it has full corporate right, power and authority (including, without limitation, the approval of its Board of Directors) to issue the Common Stock (as defined in Section 1 of Exhibit A) to AOL.





8. Survival. Sections 6, 8, 9, 10 and 16 hereof, Sections 11(c), 11(d), 11(e), 11(g), 11(h), 19, 21, 22, 23, 27, 31, 32 and 34, and Part 10 of Exhibit A, and Sections 2, 3, 4, 8, 12, 13 and 18 of Exhibit C shall survive termination of this Agreement in accordance with their respective terms.



9. Governing Law and Venue. This Agreement and the Exhibits hereto shall be governed by, and construed in accordance with, the laws of the State of New York. The Federal or state courts of the State of New York situated in New York City shall be the venue for actions brought under this Agreement or the Exhibits hereto, and each party hereby irrevocably consents to the exclusive jurisdiction of such courts in such actions.



10. Fees and Expenses. Each Party shall be responsible for the payment of its own costs and expenses, including attorneys' fees and expenses, in connection with the negotiation and execution of this Agreement and the Supplemental Agreements and the consummation of the transactions contemplated hereby and thereby.



11. Entire Agreement. This Agreement and the Exhibits hereto represent the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior and/or contemporaneous agreements and understandings, written or oral between the parties with respect to the subject matter hereof. This Agreement and/or any Exhibits hereto may be modified or amended only by written agreement of AOL and Netcentives.



12. Waiver. Any of the provisions of this Agreement and the Exhibits hereto may be waived by the party entitled to the benefit thereof. Neither Party shall be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.



13. No Third Party Beneficiaries. Nothing express or implied in this Agreement or the Exhibits hereto is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.



14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one in the same instrument. The execution of this Agreement may be evidenced by facsimile transmission of signatures, in which case the Parties agree to exchange originally executed versions of this Agreement promptly thereafter.



15. Termination.



(a) Termination for Bankruptcy/Insolvency. Either Party may terminate this Agreement immediately following written notice to the other Party if the other Party (i) ceases to do business in the normal course, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or (iv) makes an assignment





for the benefit of creditors.



(b) Termination for Breach. Except as expressly provided elsewhere in this Agreement, either Party may terminate this Agreement at any time in the event of a material breach of the Agreement by the other Party which remains uncured after thirty (30) days written notice thereof to the other Party (or such shorter period as may be specified elsewhere in this Agreement). Notwithstanding the foregoing, in the event of a material breach of a provision that expressly requires action to be completed within an express period shorter than thirty (30) days, either Party may terminate this Agreement if the breach remains uncured after written notice thereof to the other Party.



16. Conflict. In the event of any conflict between any of the Exhibits, the terms and conditions of Exhibit A shall prevail.





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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.





NETCENTIVES INC. AMERICA ONLINE, INC.



By: /s/ West Shell III By: /s/ David Colburn

____________________________ ____________________________

Name: West Shell III Name: David Colburn

Title: Chairman and CEO Title: President, Business Affairs





EXHIBIT A



Terms of the Strategic Relationship



Definitions: (a) AIM Client. The Win 32 version of the client software

(United States version 2.0) developed and distributed by

AOL, in executable, machine readable object code form, that

enables end-users to access and use the AIM Service.



(b) AIM Service. The standard, narrow-band AOL-branded

service, currently available through the Internet, that

enables end-users of such service to exchange, in real- time,

private, personalized messages with, and to monitor the

online status of, other end-users of such service through use

of the AIM Client, and any upgrades or enhancements thereto

during the Term, excluding: (i) such service(s) or similar

services available on the AOL Service; and (ii) any other

version of an AIM service which is materially different from

the standard narrow-band U.S. version of the AIM brand

service, by virtue of its branding, distribution,

functionality, Content or services, including, without

limitation, any co-branded version of the service or any

version distributed through or designed for any [ *** ]

platform or through any platform or device other than a

desktop personal computer (e.g., a service designed primarily

for distribution to a hand-held, wireless personal digital

assistant [ *** ].



(c) AOL Properties. The AOL Service, AOL.com, the CompuServe

Service, Netcenter, AIM Service, the ICQ Service, Digital

City, Spinner, Winamp, and MovieFone. Each of the foregoing

AOL Properties may be individually referred to herein as an

"AOL Property." AOL shall use good faith efforts to work with

Netcentives to encourage the use of Netcentives Loyalty

Network Infrastructure by AOL- affiliated interactive

properties other than the AOL Properties following the

Effective Date.



(d) AOL Rewards Program. The AOL- or AOL-



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affiliate-branded user loyalty program (i) developed and

managed by or on behalf of AOL but not co-branded with the

ClickRewards Program, (ii) supported or operated (in whole or

in part) by the Netcentives Loyalty Network Infrastructure

and (iii) created following the Effective Date for any and/or

all of the AOL Properties other than the ICQ Service.



(e) AOL Network. Any AOL Property and any other product or

service owned, operated or distributed by or through AOL or

any of its affiliates worldwide (and including those

properties excluded from the definitions of the AOL

Properties, pursuant to the Supplemental Agreements) (e.g.,

e-mail, yellow pages, etc.). It is understood and agreed that

the rights of Netcentives relate only to the AOL Properties

and not generally to the AOL Network.



(f) AOL Service. The standard U.S. version of the America

Online(R) brand service (whether delivered through a narrow-

band or broadband platform), specifically excluding (a)

AOL.com, Netcenter or any other AOL Interactive Site, (b) the

international versions of an America Online service (e.g.,

AOL Japan), (c) the CompuServe(R) brand service and any other

CompuServe products or services (d) "ICQ(TM)," "AOL

NetFind(TM)," "AOL Instant Messenger(TM)," "Digital City,"

"NetMail(TM)," "Electra", "Thrive", "Real Fans", "Love@AOL",

"Entertainment Asylum," "AOL Hometown," "My News" or any

similar independent product, service or property which may be

offered by, through or with the U.S. version of the America

Online(R) brand service, (e) any programming or Content area

offered by or through the U.S. version of the America

Online(R) brand service over which AOL does not exercise

complete operational control (including, without limitation,

Content areas controlled by other parties and member-created

Content areas), (f) any yellow pages, white pages,

classifieds or other search, directory or review services or

Content offered by or through the U.S. version of the America

Online(R) brand service, (g) any property, feature, product

or service which AOL or its affiliates may acquire subsequent

to the Effective Date and (h) any other version of an



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America Online service which is materially different from the

standard U.S. version of the America Online brand service, by

virtue of its branding, distribution, functionality, Content

or services, including, without limitation, any co-branded

version of the service or any version primarily distributed

through any [ *** ] platform or through any platform or

device other than a desktop personal computer.



(g) AOL.com. AOL's primary Internet-based Interactive Site

marketed under the "AOL.COM(TM)" brand, specifically

excluding (a) the AOL Service, (b) Netcenter, (c) any

international versions of such site, (d) "ICQ," "AOL

NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM),"

"AOL Hometown," "My News" or any similar independent product

or service offered by or through such site or any other AOL

Interactive Site, (e) any programming or Content area offered

by or through such site over which AOL does not exercise

complete operational control (including, without limitation,

Content areas controlled by other parties and member-created

Content areas), (f) any programming or Content area offered

by or through such site which was operated, maintained or

controlled by the former AOL Studios division (e.g.,

Electra), (g) any yellow pages, white pages, classifieds or

other search, directory or review services or Content offered

by or through such site or any other AOL Interactive Site,

(h) any property, feature, product or service which AOL or

its affiliates may acquire subsequent to the Effective Date

and (i) any other version of an America Online Interactive

Site which is materially different from AOL's primary

Internet-based Interactive Site marketed under the

"AOL.COM(TM)" brand, by virtue of its branding, distribution,

functionality, Content or services, including, without

limitation, any co- branded versions or any version

distributed through any [ *** ] platform or through any

platform or device other than a desktop personal computer.



(h) Bank Operations. Responsibility for and management of the

financial liability associated with the redemption of AOL

Rewards Program currency or any Customized AOL Rewards

Program currency. "Bank Operations" shall include any

software or technology



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required to operate, manage, maintain, distribute or support

the Bank Operations, or to provide interconnectivity between

the Bank Operations and the AOL Rewards Program or any

Customized AOL Rewards Program. For the avoidance of doubt,

"Bank Operations" shall not include the AOL Rewards Program

(or any Customized AOL Rewards Program) database and related

AOL software.



(i) Baseline Interactive Service. An entity offering either:

***



(j) Broad Content or E-Commerce Aggregator. An interactive

site or service featuring a broad selection of aggregated

third party interactive content (or navigation thereto)

(e.g., an online service or search and directory service)

and/or marketing a broad selection of products or services

across numerous interactive commerce categories (e.g., an

online mall or other leading commerce site)



(k) Change of Control. (i) The consummation of a

reorganization, merger or consolidation or sale or other

disposition of substantially all of the assets of a party or

(ii) the acquisition by any individual, entity or group

(within the meaning of Section 13(d)(3) or 14(d)(2) of the

Securities Exchange Act of 1933, as amended) of beneficial

ownership (within the meaning of Rule 13d-3 promulgated under

such Act) of more than 50% of either (x) the then outstanding

shares of common stock of such party; or (y) the combined

voting power of the then outstanding voting securities of

such party entitled to vote generally in the election of



(l) ClickRewards Program. The consumer-based Rewards Program

operated by Netcentives and currently located at

www.clickrewards.com (or any successor Rewards Program

thereto).



(m) CompuServe Service. The standard, U.S. version of the

CompuServe brand service [ *** ], specifically excluding (a)

any international versions of such service, (b) any web-based

service including "compuserve.com", "cserve.com" and

"cs.com", or any similar product or service offered by or

through the U.S. version of the CompuServe brand service, (c)

Content areas owned, maintained or controlled by CompuServe

affiliates or any similar "sub-service," (d) any programming

or Content area offered by or through the U.S.



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version of the CompuServe brand service over which CompuServe

does not exercise complete or substantially complete

operational control (e.g., third-party Content areas), (e)

any yellow pages, white pages, classifieds or other search,

directory or review services or Content and (f) any

co-branded or private label branded version of the U.S.

version of the CompuServe brand service, (g) any version of

the U.S. version of the CompuServe brand service which offers

Content, distribution, services and/or functionality

materially different from the Content, distribution, services

and/or functionality associated with the standard,

narrow-band U.S. version of the CompuServe brand service,

including, without limitation, any version of such service

distributed through any platform or device other than a

desktop personal computer and (h) any property, feature,

product or service which CompuServe or its affiliates may

acquire subsequent to the Effective Date.



(n) Customized AOL Rewards Program. Any customized Rewards

Program, created by Netcentives in accordance with this

Agreement and the Supplemental Agreements for use by AOL on

any AOL Property, and into which AOL shall have the right,

but not the obligation, to opt any AOL Property from time to

time during the Term. Each Customized AOL Rewards Program

shall utilize (at the sole option of AOL) an AOL proprietary

currency (e.g., "Spinner Rewards Points") and shall be

powered by Netcentives. The terms and conditions set forth in

Sections 21 through 23 shall apply to any Customized AOL

Rewards Program.



(o) Customized ClickRewards Program. Any customized cul-de-

sac website Rewards Program co-branded with the Click Rewards

Program, created by Netcentives in accordance with the

Supplemental Agreements for use by AOL on any AOL Property

(e.g., the ICQ Click Rewards Program), and into which AOL

shall have the right, but not the obligation, to opt any AOL

Property from time to time during the Term. Each Customized

Click Rewards Program shall be co-branded



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with the Click Rewards currency and shall be powered by

Netcentives. The terms and conditions of maintaining an

Affiliated Program Site as set forth in Sections 24 through

28 shall apply to any Customized ClickRewards Program.



(p) Digital City. The standard U.S. version of Digital City's

local content offerings marketed under the Digital City(R)

brand name [ *** ], specifically excluding (a) the AOL

Service, AOL.com, Netcenter, or any other AOL Interactive

Site, (b) any international versions of such local content

off ...