Advertising & Promotion Agreement

ADVERTISING AND PROMOTION AGREEMENT





AGREEMENT made as of the 4th day of July, 1999 (the "Effective Date"), by and among CBS Corporation, 51 West 52nd Street, New York, New York 10019 (herein called "CBS") and Medscape, Inc., 134 West 29th Street, New York, New York 10001 (herein called "Medscape"). The term "CBS" shall not include Westwood One, Inc.



1. GENERAL DEFINITIONS



1.1 "Affiliate" of the Person concerned shall mean a Person that directly or indirectly (through one or more intermediaries) controls, is controlled by, or is under common control with such Person concerned.



1.2 "Billboa rd Ad" shall mean advertising placed on various vehicles or facilities, including, without limitation, advertising space: (i) on traditional billboards or electronic signs of various ranging sizes, and (ii) on or in busses, commuter rails, subways, statio ns and terminals, transport shelters and telephone kiosks, so long as such advertising space is owned or controlled by CBS.



1.3 "CBS Competitor" shall mean any Person, other than CBS, who/which is engaged either directly, or indirectly through an Affiliate, in radio or television programming or radio or television program distribution (whether free over-the-air, cable, telephone, local, microwave, direct broadcast satellite, via Internet or otherwise) or billboard advertising in North America. A C B S Competitor shall not include any Person engaged, via an Internet Web Site, in television or radio program transmission or streaming, (the "Internet Concern"), unless such Internet Concern: (i) owns or controls, is owned or controlled by, or is under com mon control with, a CBS Competitor; or (ii) prominently features, transmits or promotes Content of a CBS Competitor.



1.4 "Collaboration Agreement" shall mean any one of the following agreements between CBS and Medscape: (a) this Agreement; (b) the Trademark and Content Agreement dated as of the Effective Date (the "Trademark and Content Agreement"); (c) the Stockholders Agreement dated as of the Effective Date; (d) the Common Stock Purchase Agreement dated as of the Effective Date; and (e) the Reg istration Rights Agreement dated as of the Effective Date.



1.5 "Common Stock" shall mean the common stock, $.01 par value per share, of Medscape.



1.6 "Consumer Health Site" shall mean the Internet Web Site owned by Medscape that provides healthcare news and healthcare information for consumers.



1.7 "Content" shall mean text, graphics, photographs, video, audio and/or other data or information (including, without limitation, any of the foregoing broadcast on television) relating to any subject and/or advertisements.



- 1 - 1.8 "Contract Year" shall mean the annual period beginning on the Effective Date, and each subsequent annual period during the Term beginning on the anniversary of the Effective Date (as such annual period may be suspended or extended, and those dates postponed, upon mutual agreement of the parties).



1.10 "Int ernet" shall mean 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 adopted from time to time, which is used to trans m it Content that is directly of indirectly delivered to a computer or other digital electronic device for display to an end-user, whether such Content is delivered through on-line browsers, off-line browsers, or through "push" technology, electronic mail, broadband distribution, satellite, wireless or otherwise.



1.11 "Internet Site" or "Web Site" shall mean any site or service delivering Content on or through the Internet, including, without limitation, any on-line service such as America Online and Compuserve.



1.12 "New Mark" shall mean a word or words designated by the parties for use as a new trademark and as part of a URL for the Consumer Health Site which shall be subject to the mutual agreement of the parties.



1.13 "New Mark Brand(s)" shall mean collectively, the New Mark, the New Mark URL and any other URL that includes the New Mark and is used for identifying the Consumer Health Site.



1.14 "New Mark URL" shall mean the New Mark followed by the extension ".com".



1.15 "Person" shall mean individual, partnership, corporation or organized group of persons, including agencies and other instrumentalities of governments and states.



1.16 "Professional Health Site" shall mean the Internet Web Site owned by Medscape that provides healthcare news and healthcare information primarily for physicians and allied healthcare professionals that is currently located at the URL www.medscape.com.



1.17 "Term" shall mean the term specified in Section 3.1 below and any extensions agreed to by the parties hereto.



1.18 "URL Scroll" shall mean the exhibition of a written representation of a URL in or during (i.e., at any time from the opening frame through end of the closing credits) a television progra m (the "Television URL Scroll") or in/on an Internet Web Site page (the "Internet URL Scroll"). For avoidance of doubt, the Television URL Scroll and the Internet URL Scroll are hereinafter collectively referred to as the "URL Scroll".





2. CBS ADVERTISING AND PROMOTION



2.1 (a) CBS shall arrange for the placement of advertising and promotion in the United States of the Consumer Health Site, the Professional Health Site and Medscape's other



- 2 - products and services in the media category or type set forth in the Advertising and Promotion placement roster set forth on Exhibit A attached hereto, with an aggregate value of $150 million. During the first Co n tract Year, CBS shall arrange for the placement of advertising in accordance with the advertising plan in Exhibit B attached hereto. CBS will consult with Medscape with respect to the media category and type of placement. CBS and Medscape will cooperate t o endeavor to implement the advertising and promotional goals set forth in the annual media plan presented to CBS by Medscape. The media plan for each Contract Year shall be consistent with the media plans of prior Contract Years, except that the advertisi n g dollar amounts for the Contract Year concerned and the allocation of advertisements during the contract year concerned shall be mutually agreed upon by the parties. All advertising and promotional materials shall be subject to the applicable CBS Network Advertising Guidelines and standard CBS preemption policies. CBS shall not have to make any ad placements if the exigencies of time or current or future contractual obligations entered into prior to the time Medscape requests such advertising, prevent or restrict CBS from doing so.



(b) The value of all broadcast advertising and promotion provided hereunder shall be based upon the average unit price paid by any unaffiliated third party, excluding barter, for spots (other than political spo ts) purchased during the specific CBS Television Network, CBS Radio Network, CBS Owned and Operated Television Station, CBS Owned and Operated Radio Station, or CBS Cable broadcast in which the advertising or promotion occurs. The value of banner advertis i ng on CBS Internet sites shall be based upon the average price paid (excluding barter) by unaffiliated third parties for banner advertising of similar size and placement during a similar period. The value of the Billboard Ad concerned shall be based upon t he average price paid or payable, excluding barter, for any similar Billboard Ad(s) during the month prior to the month in which such Billboard Ad is delivered. Medscape will be treated as a cash-paying customer in a like manner to other cash customers of similar volume. The following advertisements shall not be offset against the $150 million of advertising hereunder: any on-air mention or URL Scroll by a CBS-affiliated (television or radio) station of the URL for the Consumer Health Site, the New Mark UR L or the Identifying URL (as such term is defined in the Trademark and Content Agreement) on Medscape Programming (as such term is defined in the Trademark and Content Agreement) obtained by such CBS-affiliated station from the CBS Newspath feed or equival ent radio feed (other than a broadcast of the CBS Radio Network). (For avoidance of doubt, "CBS-affiliated station" is a television or radio station which is not owned and operated by CBS.)



(c) CBS will provide to Medscape calendar quarte rly statements, or, if available, monthly statements showing the (i) value attributable to each of the media categories and types with respect to the advertising and promotions purchased by Medscape during the statement period and (ii) the calculation of the aggregate value of advertising purchased.



2.2 (a) CBS will maintain accurate books and records which report the expenditure of the advertising and promotional value by Medscape and information from which the calculation can be derived. Medscap e may, at its own expense, examine those books and records, as provided in this Section 2.2. Medscape may make such an examination for a particular statement provided pursuant to Section 2.1(c) only once and such examination must occur within three (3) ye ars after the date such statement is sent by CBS to Medscape. (CBS will be deemed conclusively to have sent Medscape the statement concerned at the time prescribed in







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Section 2.1(c), unless Medscape notifies CB S otherwise with respect to any statement within thirty (30) days after that designated time.) Medscape may make those examinations only during CBS's usual business hours, and at the address set forth herein for the provision of notices to CBS, unless oth e rwise notified. Medscape will be required to notify CBS at least ten (10) days before the date of planned examination. If Medscape's examination has not been completed within two (2) months from the time Medscape begins it, CBS may require Medscape to ter minate it on seven (7) days notice to Medscape at any time.



(b) If any examination of CBS's books and records discloses

that:



(i) CBS has failed to properly account for

advertising and promotions purchased by Medscape hereunder, then CBS

will make appropriate adjustment(s) to the cumulative total purchased

by Medscape.



(ii) CBS has overstated the value of advertising

purchased by more than 7.5%, then CBS shall reimburse Medscape for its

direct out-of-pocket expenses incurred in identifying such material



2.3 CBS shall have the right:



(a) to suspend and/or withdraw placement of all advertising an d promotion that includes the MEDSCAPE trademark: (i) pending resolution of any third party claim covering infringement of such third party's rights because of use by Medscape in the United States of the tradename or trademark "Medscape" either alone or i n combination with any other mark and/or (ii) during such time as Medscape is enjoined from using the tradename or trademark "Medscape" in the United States on or in connection with the Consumer Health Site and has not renamed the Consumer Health Site. Med s cape shall rename the Consumer Health Site within thirty (30) days following the issuance of any injunction or the resolution of any claim which requires Medscape to cease using the tradename or trademark "Medscape" in the United States on or in connectio n with the Consumer Health Site, it being understood, however, that CBS shall have the sole right and power to approve the substitute tradename and/or trademark to be used. In the event that CBS fails to approve the substitute tradename and/or trademark wi t hin the thirty-day period, CBS shall submit a tradename proposal with three (3) alternate tradenames which appear to be available for Medscape's use on the Consumer Health Site in the United States based on trademark searches conducted by CBS, for Medscap e 's approval, which approval is to be given within ten (10) days of such submission. For avoidance of doubt, CBS does not and will not make any representation or warranty with respect to the availability of any alternate name provided to Medscape by CBS fo r use on the Consumer Health Site. Medscape shall thereafter promptly apply for registration of such trademark.



(b) if the New Mark is being used as the principal name or part of the principal name of the Consumer Health Site, to suspend and/or withdraw placement of all the advertising and promotion of the Consumer Health Site: (i) upon CBS's decision to cease use of the New Mark in connection with any third party claim covering infringement of such third party's rights because of use by M edscape in the United States of the New Mark either alone or in combination with any other mark and/or (ii) during such time as Medscape is enjoined from using the New Mark in the United States on or in connection with the Consumer Health Site and has not renamed the Consumer Health Site. Medscape shall rename the Consumer Health Site



- 4 - CBS Medscape within ten (10) days following CBS's notice of its decision to cease use of the New Mark, the issuance of any injuncti on or the resolution of any claim which requires Medscape to cease using the New Mark in the United States on or in connection with the Consumer Health Site. Upon Medscape's renaming the Consumer Health Site, the placement of advertising for the Consumer H ealth Site shall resume using the new name. Medscape will not seek (i) reimbursement or payment for advertising and promotion time used or (ii) payment of any of Medscape's conversion costs, in the event that CBS suspends and/or withdraws placement of adv ertising and promotion of the Consumer Health Site hereunder.



2.4 CBS and Medscape shall mutually agree on (i) procedures to maximize joint selling opportunities between Medscape's and CBS's respective ad sales forces, and (ii) commissions payable with respect to such selling.





3. TERM



3.1 The term of this Agreement shall begin as of the date hereof and shall continue in full force and effect for a period of seven (7) consecutive years from the Effective Date unless it is terminate d earlier in accordance with the terms and conditions stated herein.



3.2 The parties shall negotiate exclusively with each other in good faith for a period of twelve (12) consecutive months (the "Negotiation Period") with respect to any extension (s) of the term of this Agreement commencing on the fifth anniversary of the Effective Date (i.e., July 4, 2004).





4. WARRANTIES, REPRESENTATIONS AND COVENANTS



4.1 (a) CBS REPRESENTS AND WARRANTS THAT:



(i) it has full power and authority to enter into and

fully perform this Agreement; and



(ii) this Agreement has been duly authorized and is

enforceable in accordance with its terms.



(b) MEDSCAPE REPRESENTS AND WARRANTS THAT:



(i) it has full power and authority to enter into and

fully perform its obligations under this Agreement; and



(ii) this Agreement has been duly authorized and is

enforceable in accordance with its terms.



(c) MEDSCAPE COVENANTS THAT:



(i) at all times during the Term, it will comply with

all applicable federal, state, local and foreign laws; and



- 5 - (ii) at all times during the Term, the Consumer

Health Site will be maintained in a professional manner consistent with

industry standards.



(iii) advertising and promotion material and any

portion thereof created by or on behalf of Medscape and furnished by

Medscape to CBS and the use thereof shall not violate any law or

infringe upon or violate the rights of any Person.





5. INDEMNIFICATION



5.1 Each party (the "Indemnifying Party") shall at all times indemnify, hold harmless and defend the other party (collectively, the "Ind emnified Party") from and against any loss, cost, liability or expense (including court costs and reasonable attorneys' fees) arising out of or resulting from any breach by the Indemnifying Party of any representation, warranty, covenant or agreement cont a ined herein. In the event of any such claim, the Indemnified Party shall: (i) promptly notify the Indemnifying Party of the claim; (ii) allow the Indemnifying Party to direct the defense and settlement of such cla ...