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Exhibit 10.7
AFFILIATION AGREEMENT
This AFFILIATION AGREEMENT (this "Agreement") is entered into as of this
10th day of November 1997 between JAMtv Corporation, a Delaware corporation
("JAMtv"), and Straight Arrow Publishers Company, L.P., a Delaware limited
partnership ("Wenner Media").
RECITALS:
A. Wenner Media and JAMtv desire to enter into the agreements described
herein providing for the integration of the Rolling Stone Content (including
certain content of Rolling Stone magazine and the Rolling Stone Online website
at the Rolling Stone URL) into the JAMtv Music Network to create the Rolling
Stone Network. Capitalized terms used in this Agreement have the meanings
ascribed to them in Section 1 below.
B. Subject to the satisfaction of the conditions precedent set forth
herein and subject to the other terms and conditions set forth in this Agreement
and the other Affiliation Agreements:
(i) JAMtv and Wenner Media will commence and consummate the integration
of Rolling Stone Online into the JAMtv Music Network in accordance
with the Launch Schedule to create the Rolling Stone Network;
(ii) JAMtv will provide the JAMtv Hosting Services and present the JAMtv
Content and the Rolling Stone Content on the Rolling Stone Network;
(iii) Wenner Media will deliver the Rolling Stone Content to JAMtv, grant
or cause the grant of the Wenner Media Licenses to JAMtv, and pay
certain merchandising commissions to JAMtv;
(iv) Wenner Media will provide certain advertising and promotion services
and opportunities to JAMtv in connection with Rolling Stone
magazine, as well as access to certain promotional programs, as
appropriate.
(v) JAMtv will be responsible for paying the License Fees and certain
advertising commissions to Wenner Media and for delivering a Warrant
to Wenner Media which provides for the purchase of certain shares of
common stock of JAMtv; and
(vi) from and after the Launch Date, among other things, the Rolling
Stone URL and the JAMtv URL will be integrated into and/or will
point to the Rolling Stone Network.
NOW, THEREFORE, in consideration of the Recitals (which are incorporated
herein by this reference), the mutual promises contained herein, and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, JAMtv and Wenner Media hereby agree as follows:
1. Defined Terms. As used in this Agreement, the following capitalized
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terms shall have the meanings set forth below unless otherwise defined herein.
All of the Affiliation Agreements referenced below are of even date herewith
unless otherwise expressly dated below.
"Affiliation Agreements" means, collectively, this Agreement, the
Escrow Agreement and the Warrant.
"America Online" means America Online, Inc., together with its
successors, assigns, and affiliates.
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"AOL Rolling Stone Site" means the online site with America Online
which features certain exclusive Rolling Stone Content and other non-
exclusive Rolling Stone Content (such as .WAV files of record reviews) and
uses certain of the Rolling Stone Trademarks.
"Archival Rolling Stone Content" means the archival and historical
Rolling Stone Content or derivatives thereof which are or will be
digitized, formatted, modified, recorded, or otherwise manipulated or
stored by JAMtv to render such Rolling Stone Content suitable for use with
the Rolling Stone Network in accordance with Section 2.
"Confidential Information" means the trade secrets or other
information of a confidential nature of a party hereto, including, without
limitation, such information, arising from such party's business,
customers, or Proprietary Rights, and whether or not owned by such party or
held in confidence by such party under an obligation of confidentiality
with a third party.
"Default" means a default by a party under this Agreement, as
specified in Section 19, or under one of the other Affiliation Agreements.
"Escrow Agreement" means that certain Escrow Agreement among JAMtv,
Wenner Media, and American National Bank and Trust Company of Chicago, in
the form attached hereto as Exhibit A.
"Escrow License Fees" means the License Fees subject to deposit under
the Escrow Agreement in accordance with paragraph (d) of Section 9.
"First Payment Date" means the date of the first Scheduled License Fee
payment payable hereunder in accordance with paragraph (a) of Section 9.
"Initial Term" means the initial three (3) year term of this Agreement
specified in paragraph (a) of Section 18.
"Interactive Network" means the Internet, the World Wide Web and
online services (e.g., CompuServe, Prodigy, Microsoft Network, and Snap),
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accessed through any interactive electronic means of distribution or
transmission now or hereafter known, including without limitation computer
networks, cable networks, fiber optic networks, satellite networks, and
wireless interactive networks; and Internet-dependent or enabled CDs, CD-
ROMs and DVDs, the principal purpose of which is obtaining, supplementing
and updating information and multimedia assets that are being provided
online.
"JAMtv Content" means (exclusive of JAMtv's rights in the Rolling
Stone Content) all of JAMtv's: (a) copyrights, whether or not registered,
registrations thereof, applications for registration thereof, and all
secondary and subsidiary rights therein; (b) service marks, trademarks,
trade dress, registrations thereof, and applications for registration
thereof, together with the goodwill symbolized thereby and connected
therewith; (c) art, audiovisual works, animations, cartoons, characters,
choreography, compilations, collective works, computer software and
programs, data, designs, emblems, films, film clips, graphics, images,
illustrations, likenesses, literary works, logos, motion pictures, musical
compositions, music videos, performances, photographs, pictorial works,
songs, song lyrics, sound recordings, scripts, screenplays, templates,
text, video recordings, copyrightable subject matter, works of authorship,
trade secrets (including without limitation customer and vendor lists), and
other proprietary rights; (d) all rights under copyright and moral rights
associated with the foregoing; (e) all renewals, extensions, continuations,
derivative works, enhancements, improvements, modifications, updates, new
<PAGE>
releases or other revisions of the foregoing; (f) all publicity rights or
privacy rights (or waivers or quitclaims thereof) of any person or entity,
and (g) all rights corresponding to the foregoing throughout the world; all
of the foregoing which any of JAMtv or its employees, consultants or
representatives has created or may hereafter create, has licensed or may
hereafter license, or has acquired or may hereafter acquire, in any form
and on any medium now known or hereafter developed, whether tangible,
printed, recorded, digitized, fixed, stored, electronic, or otherwise
embodied, and including, without limitation, such content described on
Schedule 1 hereto.
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"JAMtv Hosting Services" means the services provided by JAMtv in
accordance with Section 2.
"JAMtv Music Network" means the interactive multimedia site on the
Interactive Network currently hosted by JAMtv at the JAMtv URL or any other
location or site on the Interactive Network through which JAMtv places,
broadcasts, downloads, transmits, or distributes JAMtv Content (or, after
the Launch Date, any Rolling Stone Content pursuant hereto), together with
any affiliated radio station sites and participating venue sites on the
Interactive Network.
"JAMtv URL" means the uniform resource locator `http://www.jamtv.com'
and any and all extensions thereof.
"Launch Date" means the completion date of the initial integration of
the JAMtv Music Network and Rolling Stone Online into the Rolling Stone
Network, as mutually accepted by JAMtv and Wenner Media.
"Launch Schedule" means the tasks to be performed by JAMtv and Wenner
Media to commence and consummate the integration of Rolling Stone Online,
the Rolling Stone Trademarks, and the Rolling Stone Content into the JAMtv
Music Network to create the Rolling Stone Network and the time line
therefor, as such tasks and time line are more particularly described in
Section 2 and on Schedule 1.
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"License Fees" means the Scheduled License Fees and the Trigger
License Fee.
"Microsoft Button" means the Interactive Network enabled link from
Microsoft Corporation's Internet Explorer 4.0 (and later versions, when
available), which presently points to the Rolling Stone Online site
maintained by Wenner Media at the Rolling Stone URL and which shall (in
accordance with paragraph (c) of Section 8) point to the Rolling Stone
Network from and after the Launch Date.
"MusicNet" means a prior joint venture of Wenner Media (which is no
longer operating or in existence, and is commonly referred to by Wenner
Media as `MusicNet') involving Rolling Stone Content, including
specifically recorded interviews with various artists (which interviews are
the property of Wenner Media but not currently in its possession).
"Net Revenue" means aggregate gross invoice amounts minus standard
discounts and actual returns.
"Network Icon" means a printed icon or logo of type, style, and design
to be mutually agreed upon between the parties for placement at certain
designated locations in Rolling Stone magazine which will refer to related
supplementary materials and multimedia assets available on the Rolling
Stone Network in accordance with Section 8.
<PAGE>
"Proprietary Rights" means any copyright, trademark, trade name, trade
dress, service mark, domain name, invention, discovery, patent, patent
applications, trade secret, rights of publicity, and any other proprietary
interests, including but not limited to rights in HTML and/or VRML code,
CGI and/or Perl scripts, JavaScript code and Java code or applets and tools
or techniques developed, page designs, layouts, graphic images, and/or
styles, and page and/or form templates developed.
"Qualified Public Offering" means a primary or secondary sale of
shares of common stock of JAMtv to the public pursuant to a public offering
registered under the Securities Act of 1933, as amended, which shall be
consummated where the aggregate net proceeds to JAMtv (after deducting
underwriting discounts and commissions and expenses of the offering) from
the offering of the shares of common stock so registered are at least
$15,000,000.
"Qualified Private Offering" means a private offering of equity
securities of JAMtv which shall be consummated where the aggregate net
proceeds to JAMtv from the offering of such securities are at least
$15,000,000.
"Renewal Term" means the subsequent five (5) year renewal term or any
other renewal term of this Agreement specified in paragraph (b) of Section
18.
"Rolling Stone Content" means the content of Wenner Media described on
Schedule 2 hereto.
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"Rolling Stone Merchandise" means merchandise (including without
limitation books, magazine back issues, compact disks, and clothing)
incorporating, embodying or displaying Rolling Stone Content or Rolling
Stone Trademarks.
"Rolling Stone Network" means JAMtv's interactive multimedia site(s)
available on the Interactive Network (including without limitation any one
or more alternatively named networks and/or sites available on the
Interactive Network) resulting from the integration of Rolling Stone Online
into the JAMtv Music Network pursuant hereto, as updated, modified, or
supplemented from time to time.
"Rolling Stone Online" means the World Wide Website hosted by Wenner
Media before the Launch Date at the Rolling Stone URL for Rolling Stone
Content and on which JAMtv shall after the Launch Date, pursuant hereto,
place, broadcast, download, transmit, or distribute Rolling Stone Content
(and JAMtv Content pursuant hereto).
"Rolling Stone Trademarks" means the trademarks, service marks and
logos listed on Schedule 3 hereto, and the trade dress of Rolling Stone
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magazine.
"Rolling Stone URL" means the uniform resource locator
`http://www.rollingstone.com' and any and all extensions thereof.
"Scheduled License Fees" means the license fees payable by JAMtv in
accordance with paragraphs (a), (b), (c), (d) and (e) of Section 9.
"Term" means the Initial Term or any Renewal Term.
"Third Party Restrictions" means the restrictions imposed by third
parties on Wenner Media's rights in Rolling Stone Content provided by third
parties, as such restrictions are more particularly described in paragraph
(b) of Section 5.
<PAGE>
"Trigger Event" means either a Qualified Public Offering or a
Qualified Private Offering occurring before the expiration or termination
of the Initial Term or any Renewal Term.
"Trigger License Fee" means the license fee payable by JAMtv in
accordance with paragraph (f) of Section 9.
"Warrant" means that certain Warrant, issued by JAMtv to Wenner Media,
in the form attached hereto as Exhibit B.
"Wenner Media Licenses" means the licenses and rights granted to JAMtv
pursuant to this Agreement.
2. JAMtv Hosting Services. JAMtv will install and host, at no cost to
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Wenner Media, the Rolling Stone Online site as redesigned and incorporated into
the Rolling Stone Network on its servers in Chicago (or elsewhere) and use its
best efforts to provide at all times commercially reasonable access at
competitive speeds to the Rolling Stone Network for a reasonable number
(expected to increase significantly over time) of simultaneous audio, video and
database users located anywhere on the Internet. In accordance therewith, JAMtv
will: (a) migrate and integrate Rolling Stone Online and other Rolling Stone
Content (including, without limitation, the Rolling Stone Content on the AOL
Rolling Stone Site which is not exclusively licensed to America Online) into the
JAMtv Music Network to create the Rolling Stone Network; (b) digitize and
integrate existing and future Rolling Stone Content (including, without
limitation, the Rolling Stone Content on the AOL Rolling Stone Site which is not
exclusively licensed to America Online and the Archival Rolling Stone Content)
as it deems appropriate for use on the Rolling Stone Network; (c) maintain,
support and further develop the Rolling Stone Network, including without
limitation developing and acquiring new JAMtv programming, acquiring and
maintaining such technological advances as are necessary to develop and maintain
a competitive advantage in the field of music and related networks on the
Interactive Network and consistent with the quality of the premiere music
network on the Interactive Network; and (d) promote, distribute, and offer to
sell Rolling Stone Merchandise on the Rolling Stone Network. JAMtv may, at any
time, in its sole discretion after the Launch Date, change, expand, alter or
redesignate the physical server(s) for the Rolling Stone Network (and associated
servers for Rolling Stone Online, if any, and the JAMtv Music Network) as well
as their physical locations in order to enhance, optimize, simplify, consolidate
or otherwise integrate the performance and other operating characteristics of
all of the sites on the Interactive Network which collectively constitute the
Rolling Stone Network. The web site constituting the home page of the Rolling
Stone Network shall be called the "Rolling Stone Network," unless the parties
agree otherwise. JAMtv will also migrate, maintain and support, but not provide
any content for, Wenner Media's US magazine, Men's Journal and Cease Fire Web
sites at their respective URLs; provided that, Wenner Media will provide
fractional page advertisements to JAMtv a minimum of four times per year in each
of US magazine (one-third or one-half page ads) and Men's Journal (one-quarter
or one-half page ads), the specific issues and placement to be determined in
Wenner Media's sole discretion.
3. JAMtv Content. In accordance with and subject to the terms more
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particularly described on Schedule 1 attached hereto, JAMtv will make the JAMtv
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Content available to the Rolling Stone Network.
4. Rolling Stone Content. In accordance with and subject to the
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following terms and the terms more particularly described on Schedule 2 attached
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hereto, Wenner Media will develop, create, and acquire, and make available to
JAMtv, to the extent not prohibited by Third Party Restrictions, the Rolling
Stone Content at no cost to JAMtv other than as expressly provided in this
Agreement, provided Wenner Media possesses the necessary Proprietary Rights
thereto.
(a) Access and Delivery. Wenner Media shall provide JAMtv, at
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reasonable times and from time to time, access to the facilities where
Rolling Stone Content is or may be stored in order to access, copy,
duplicate, digitize, retrieve, and utilize the Rolling Stone Content.
Wenner Media shall provide JAMtv with reasonable assistance and technical
support pursuant thereto including, without limitation, provision and
shipping to JAMtv of recordings, CDs or other copies
<PAGE>
of the Rolling Stone Content or transmission thereof by electronic,
satellite, Internet, or telecommunications means to JAMtv. JAMtv will have
access to such new Rolling Stone Content to be published in Rolling Stone
magazine on or before the on sale date which is included in the official
Rolling Stone publishing schedule for the issue of Rolling Stone magazine
in which such Rolling Stone Content is to appear. Wenner Media and JAMtv
will provide to each other, at no cost to the other, access to and
appropriate copies of statistics, charts, lists, sales figures, and other
data related to activities on the Rolling Stone Network which each of them
may obtain, purchase, develop or otherwise possess.
(b) Form. Wenner Media will provide JAMtv with (1) electronic, CD, or
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digital copies of Rolling Stone Content in server ready format (except for
Archival Rolling Stone Content more than five years old which may be
provided or delivered in whatever form it is presently available) and (2)
color copies, of typeset quality, of all trademarks, service marks, design
logos, and artwork comprising Rolling Stone Content.
(c) Acquisition and Creation of Rolling Stone Content. To the extent
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consistent with Wenner Media's agreements with contributors, writers,
photographers, promoters, artists, musicians, and other originators,
creators, owners, and licensors of Rolling Stone Content, Wenner Media will
in good faith develop, create, and acquire additional Rolling Stone Content
upon terms consistent with the Wenner Media License granted hereunder.
Wenner Media will in good faith use reasonable efforts to acquire such
incremental or incidental rights necessary to use on the Rolling Stone
Network, Rolling Stone Content to which it does not otherwise have the
necessary Proprietary Rights sufficient to permit such use, whenever an
opportunity to acquire such rights arises by virtue of any contract
negotiations or discussions between Wenner Media and any originator,
creator, owner, or licensor (or any agent or manager thereof) of rights
covered by the definition of Rolling Stone Content (including without
limitation such rights relating to any literary, artistic, or photographic
contribution, interview, live performance, or studio session); provided
that the incremental reasonable out-of-pocket costs associated therewith
that Wenner Media would not otherwise incur in the ordinary course of
business for Rolling Stone magazine or for the AOL Rolling Stone Site will
be promptly reimbursed by JAMtv (provided that JAMtv has agreed in writing
to such costs prior to their being incurred). Wenner Media shall notify
JAMtv upon Wenner Media's acquisition of any significant new Rolling Stone
Content out of the ordinary course of business and, provided it possesses
the necessary Proprietary Rights sufficient to permit use thereof on the
Rolling Stone Network, will make all such Rolling Stone Content readily
available to JAMtv in accordance with paragraph (a) above. Wenner Media
will also use reasonable efforts to assist JAMtv in identifying, soliciting
and contracting with writers and other talent which the parties believe can
make substantial contributions to the content on the Rolling Stone Network.
Wenner Media and the Rolling Stone Online staff will assist JAMtv in
developing new sections, areas, features, and other elements for the
Rolling Stone Network including, without limitation, weekly events, trivia
and photography games and quizzes, personals and polls online, celebrity
chats, music critics round tables, and gossip columns. In addition, Wenner
Media and the Rolling Stone Online staff will assist JAMtv in contacting
and developing, with major third party Internet businesses (such as Yahoo,
Excite, Infoseek, Microsoft Corporation, America Online, and Netscape), new
brand opportunities, products and services for such items as branded
Rolling Stone Network webcasts for Yahoo, branded Rolling Stone Network
interviews, and branded Rolling Stone Network online celebrity chats.
(d) Rolling Stone Staffing. Wenner Media will maintain a sufficient
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Rolling Stone Online staff throughout the Term to meet its content
production responsibilities under this Agreement. Wenner Media, at JAMtv's
expense (other than two trips per year at Wenner Media's expense, staff to
be sent at Wenner Media's discretion) will direct appropriate senior
members of the Rolling Stone Online staff to visit JAMtv offices in Chicago
on a regular basis to plan and
<PAGE>
coordinate the activities of the parties in providing the content for the
Rolling Stone Network and will provide one or more work spaces in the
Wenner Media offices in New York to be used from time to time by JAMtv
personnel in connection with their visits to New York for similar
coordination and planning meetings, which work spaces need not be the same
on each visit.
5. Content License.
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(a) Grant. Subject to the Third Party Restrictions, Wenner Media
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hereby grants to JAMtv an exclusive (as defined in Section 12 hereof)
worldwide license to and right to use and exploit the Rolling Stone Content
(including without limitation through the reproduction, translation,
printing, adaptation, modification, reformatting, publishing, alteration,
digitizing, capturing, editing, cropping, combination, synchronization,
exhibition, performance, display, and transmission thereof in any form and
through any medium now known or later developed) in connection with the
Rolling Stone Network and the design, operation, distribution, display,
transmission, marketing, advertising, and promotion thereof.
Notwithstanding the foregoing, JAMtv shall not sublicense any Rolling Stone
Content to any entity reasonably deemed by Wenner Media to be a competitor
of Wenner Media.
(b) Third Party Restrictions. JAMtv acknowledges that Wenner Media
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does not possess all of the Proprietary Rights necessary to provide and
license certain Rolling Stone Content for use on the Rolling Stone Network
because certain Rolling Stone Content is subject to Third Party
Restrictions. Wenner Media will, upon JAMtv's request, provide JAMtv with
copies of documentation describing specific Third Party Restrictions or
will disclose to JAMtv the nature, duration, scope, and other material
terms of such Third Party Restrictions in reasonable detail. Wenner Media
shall have no obligation to obtain all necessary rights to use such Rolling
Stone Content in connection with the Rolling Stone Network unless it does
so in the ordinary course of business in connection with Rolling Stone
magazine or for the AOL Rolling Stone Site; provided that Wenner Media will
in good faith use reasonable efforts to obtain such rights if JAMtv agrees
in advance in writing to pay the reasonable out-of-pocket costs of Wenner
Media associated therewith which Wenner Media would not otherwise have
incurred in the ordinary course of business for Rolling Stone magazine or
for the AOL Rolling Stone Site.
(c) First Offer to JAMtv. If Wenner Media is unable, despite its
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reasonable efforts, to acquire or license the rights covered by the
definition of Rolling Stone Content pursuant to the preceding paragraphs,
Wenner Media will reasonably cooperate with JAMtv to assist JAMtv in
acquiring or licensing such rights.
6. Trademark License.
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(a) Grant. Subject to the terms and conditions of this Agreement,
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Wenner Media hereby grants to JAMtv a right and license to use the Rolling
Stone Trademarks and the Rolling Stone URL solely in connection with the
Rolling Stone Network and the design, operation, distribution, display,
transmission, marketing, advertising and promotion thereof.
(b) Quality Control. Wenner Media shall have the right to exercise
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quality control over the Rolling Stone Network and JAMtv's use of the
Rolling Stone Trademarks to that degree necessary, in the reasonable
opinion of Wenner Media, to maintain the validity and enforceability of the
Rolling Stone Trademarks and to protect the goodwill associated therewith.
JAMtv shall, in its design, operation, distribution, display, transmission,
marketing, advertising and promotion of the Rolling Stone Network, adhere
to a level of quality at least as high as that established by Wenner Media
in connection with Rolling Stone Online prior to the Launch Date, and to
such
<PAGE>
reasonable standards and specifications as may be provided by Wenner Media
to JAMtv from time to time.
(c) Trademark Usage. JAMtv shall use the Rolling Stone Trademarks in
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accordance with sound trademark and trade name usage principles and in
compliance with all applicable laws and regulations of the United States,
including without limitation all laws and regulations relating to the
maintenance of the validity and enforceability of the Rolling Stone
Trademarks; and JAMtv shall not use the Rolling Stone Trademarks in any
manner which might tarnish, disparage, or reflect adversely on Wenner Media
or the Rolling Stone Trademarks. JAMtv shall use, in connection with the
Rolling Stone Trademarks, all legends, notices and markings as required by
law. JAMtv shall not materially alter the appearance of the Rolling Stone
Trademarks on the Rolling Stone Network or in any advertising, marketing,
distribution, or sales materials, or any other publicly distributed
materials.
(d) Conformance with Standards. JAMtv shall, upon the request of
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Wenner Media, submit to Wenner Media representative samples of all publicly
distributed advertising materials using the Rolling Stone Trademarks prior
to their initial distribution. In the event that Wenner Media finds that
such advertising materials, or any materials included on the Rolling Stone
Network, materially deviate from the standards and specifications provided
to JAMtv by Wenner Media or from the standards of quality associated with
Rolling Stone Online prior to the Launch Date, or that, in the reasonable
opinion of Wenner Media, such materials misuse the Rolling Stone
Trademarks, JAMtv shall, upon notice from Wenner Media, immediately, and no
later than ten (10) days after receipt of Wenner Media's notice, take all
measures reasonably necessary to correct the deviations or
misrepresentation in, or misuse of, the respective items; provided,
however, in the event Wenner Media reasonably determines that the defect
poses a threat to the validity of the Rolling Stone Trademarks or to the
goodwill associated therewith, JAMtv shall, upon notice from Wenner Media,
immediately cease and desist all distribution, sale and marketing of the
nonconforming items, and shall immediately remove such nonconforming items
from the Rolling Stone Network and/or order its distributors and retailers
to cease shipment and/or sale of such nonconforming items. If JAMtv fails
to take such steps, Wenner Media shall have the right to terminate this
Agreement pursuant to the terms of Section 20.
(e) Cooperation. JAMtv shall comply with such other reasonable
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requests as are made by Wenner Media to enable Wenner Media to assure the
quality of any materials on the Rolling Stone Network bearing any Rolling
Stone Trademark. JAMtv agrees that it shall cooperate with Wenner Media to
avoid confusion or conflict arising out of Wenner Media's or any other
licensee's simultaneous use of the Rolling Stone Trademarks in connection
with other products or services outside of the Interactive Network (but
including the AOL Rolling Stone Site), and to resolve any such conflicts to
the satisfaction of Wenner Media.
7. Allocation of Creative and Editorial Control.
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(a) Wenner Media. Wenner Media shall have creative and editorial
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control over all content of the Rolling Stone Network (other than the JAMtv
Content) which shall be subject to the final review and edit of the
editorial management of Rolling Stone Online. Without limiting the
foregoing, the initial layout and design of the integrated Rolling Stone
Network site (as of the Launch Date) and any subsequent changes thereto
shall be subject to the artistic approval of Wenner Media which shall not
be unduly delayed or unreasonably withheld.
(b) JAMtv. Except as set forth in paragraph (a) above, JAMtv shall
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have editorial and creative control over the JAMtv Content contained in the
Rolling Stone Network, subject to paragraph (d) of Section 6. JAMtv may
use the JAMtv trademarks on or in connection with the
<PAGE>
Rolling Stone Network solely to identify JAMtv as "producer,"
"distributor," "syndicator" or "host" of the Rolling Stone Network and only
as approved in advance by Wenner Media, such approval not to be
unreasonably withheld. JAMtv may, in its sole discretion, at any time, add,
modify, change, delete, substitute or reschedule in whole or in part from
time to time any and all aspects of the JAMtv Content, subject to paragraph
(d) of Section 6.
8. Promotion and Advertising.
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(a) In accordance with and in consideration of the terms more
particularly described on Schedule 4 attached hereto, Wenner Media will in
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good faith promote the Rolling Stone Network, and the programming contained
thereon. Such promotion duties shall include, without limitation, the
preparation and inclusion in every issue of Rolling Stone magazine of an
editorial column to be written and edited by Wenner Media, as more fully
described on Schedule 4 attached hereto. Wenner Media will produce
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advertising copy for any commercial messages as Wenner Media uses to
promote the foregoing. Wenner Media shall submit examples of all proposed
advertisements and other promotional materials for the Rolling Stone
Network to JAMtv for inspection, provided that Wenner Media will have the
final right of approval with respect thereto.
(b) Wenner Media shall immediately prior to the Launch Date undertake
all steps necessary to assure that the Microsoft Button and the PointCast
College Network at all times after the Launch Date permit all users thereof
to seamlessly link to the Rolling Stone Network. JAMtv shall be
responsible for all maintenance and support necessary to maintain the
Microsoft Button and PointCast College Network links, respectively, to the
Rolling Stone Network.
(c) Wenner Media shall place an explanation of the Network Icon and
examples of the Network Icon in each issue of Rolling Stone magazine, in a
manner designed to encourage readers to access the Rolling Stone Network.
A Network Icon shall be placed at such locations in the magazine as Wenner
Media elects in its sole discretion, provided that Wenner Media shall place
a Network Icon at the end of the music reviews section.
(d) JAMtv and Wenner Media shall cooperate in good faith to jointly
develop promotions in the field, as Wenner Media deems appropriate, on the
Rolling Stone Network, in Rolling Stone magazine, and in other publications
of Wenner Media, which are designed to increase the visibility, prominence,
awareness and popularity of the Rolling Stone Network so as to increase
traffic and attract advertisers to the Rolling Stone Network.
(e) JAMtv and Wenner Media shall cooperate and participate in the
following types of marketing promotions and co-marketing opportunities: (i)
online promotions; (ii) press releases and public announcements (subject to
paragraph (g) of Section 13); and (iii) reasonable inclusion in the other
party's booths, presentations, presences, and promotions at trade shows,
conferences, conventions, in print and on radio and/or television, and in
marketing materials and advertising campaigns.
(f) The services provided by the Rolling Stone Online staff in
connection with the advertising and promotional services of Wenner Media
described in the preceding paragraphs of this Section shall be without
charge to JAMtv (except as expressly described on Schedule 4 hereto);
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provided that JAMtv shall bear any out-of-pocket costs associated therewith
and, to the extent JAMtv requires advertising and promotional services of
Wenner Media beyond the scope of the services described in the preceding
paragraphs, Wenner Media will provide advertising to JAMtv at a net rate of
twenty percent (20%) below the published Rolling Stone rate card then in
effect, in accordance with the terms and conditions thereof.
<PAGE>
(g) JAMtv will use reasonable efforts to promote the Rolling Stone
Network, including conducting advertising campaigns in various media at its
own expense.
9. License Fees. In consideration for the Wenner Media Licenses and the
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obligations of Wenner Media under this Agreement and the other Affiliation
Agreements, provided no Default by Wenner Media exists, JAMtv will pay the
License Fees to Wenner Media as follows.
(a) Year One. JAMtv will pay $1,000,000 to Wenner Media for the one
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year period commencing on the later of (i) the Launch Date and (ii) January
6, 1998 and ending on the first anniversary of such First Payment Date,
which shall be payable in four (4) equal quarterly installments of $250,000
each. The first installment shall be payable on January 6, 1998, the
second installment shall be payable on April 6, 1998, the third installment
shall be payable on July 6, 1998, and the fourth installment shall be
payable on October 6, 1998.
(b) Year Two. JAMtv will pay $1,000,000 to Wenner Media for the one
--------
year period commencing on the first anniversary of the First Payment Date
and ending on the second anniversary of the First Payment Date, which shall
be payable in four (4) equal installments of $250,000 each. The first
installment shall be payable on January 6, 1999, the second installment
shall be payable on April 6, 1999, the third installment shall be payable
on July 6, 1999, and the fourth installment shall be payable on October 6,
1999.
(c) Year Three. JAMtv will pay $1,000,000 to Wenner Media for the one
----------
year period commencing on the second anniversary of the First Payment Date
and ending on the third anniversary of the First Payment Date, which shall
be payable in four (4) equal installments of $250,000 each. The first
installment shall be payable on January 6, 2000, the second installment
shall be payable on April 6, 2000, the third installment shall be payable
on July 6, 2000, and the fourth installment shall be payable on October 6,
2000.
(d) Escrow of Scheduled License Fees for Years 1 and 2. The Scheduled
--------------------------------------------------
License Fees described in paragraphs (a) and (b) above shall be deposited
into escrow by JAMtv on the date hereof and subject to release to Wenner
Media in accordance with the terms and conditions of the Escrow Agreement.
Any release of funds from the Escrow Agreement to Wenner Media or its
designees shall be deemed to be a payment by JAMtv in satisfaction of its
payment obligations under this Agreement.
(e) Scheduled License Fees Following Year 3. From November 10, 2000 to
---------------------------------------
November 10, 2005, Tunes will pay $1,250,000 to Wenner Media for each one
year period commencing on each anniversary of the First Payment Date and
ending on the next succeeding anniversary of the First Payment Date, which
shall be payable in four (4) equal installments of $312,500 each on the
January 6, April 6, July 6, and October 6 dates within such one year
period. If there shall be a first Renewal Term pursuant to Section 18,
JAMtv will pay $1,500,000 to Wenner Media for each one year period
commencing on each anniversary of the First Payment Date and ending on the
next succeeding anniversary of the First Payment Date, which shall be
payable in four (4) equal installments of $375,000 each on the January 6,
April 6, July 6, and October 6 dates within such one year period.
(f) Trigger License Fee. Upon the first to occur of (i) a Qualified
-------------------
Private Offering and (ii) a Qualified Public Offering, JAMtv will pay to
Wenner Media, within 30 days after the completion and closing of the
applicable Trigger Event, a one time Trigger License Fee (in addition to
the Scheduled License Fees payable hereunder but subject to paragraph (f)
above) equal to $1,500,000. No Trigger License Fee shall be payable upon a
second or later occurring Trigger Event, if any.
<PAGE>
10. Advertising and Merchandise Revenue.
-----------------------------------
(a) JAMtv shall pay Wenner Media an advertising commission equal to
twenty-five percent (25%) of the Net Revenue of JAMtv derived from
advertisements obtained by, directed by, or otherwise placed on website
pages of the Rolling Stone Network by or through the direct efforts of
Wenner Media, and ten percent (10%) of the Net Revenue of JAMtv derived
from all other advertisements on the Rolling Stone Network. Up to five
percent (5%) of the available advertising space on the Rolling Stone
Network shall be reserved for Wenner Media's allocation to Rolling Stone
advertisers and shall not be subject to the foregoing provision or any
payment to JAMtv.
(b) Wenner Media shall pay JAMtv a commission equal to ten percent
(10%) of the Net Revenue derived from the sale of all Rolling Stone
Merchandise through the Rolling Stone Network and a commission equal to
five percent (5%) of the Net Revenue derived from the sale of all Rolling
Stone Merchandise through the Interactive Network other than through the
Rolling Stone Network. Notwithstanding the foregoing, subscriptions to
Rolling Stone magazine, including, without limitation, those obtained
through a subscription solicitation button on the Rolling Stone Network
website, shall not be subject to any JAMtv commission.
(c) Wenner Media and JAMtv acknowledge that from time to time, either
or both of the parties will be approached and presented with third party
licensing, promotion, marketing and/or advertising opportunities which
specifically relate to and/or involve other online or Internet companies,
websites, networks or businesses seeking to use Rolling Stone Content or to
gain access to features, functionality, or content of the Rolling Stone
Network for a fee or other consideration, for online or Internet-related
uses. Wenner Media acknowledges that, in accordance with its exclusivity
obligations under Section 12, it is prohibited from taking advantage of
such third party opportunities without the written consent of JAMtv.
Accordingly, Wenner Media and JAMtv agree that any and all revenue obtained
from any or all such online or Internet-related transactions to which JAMtv
consents shall be shared evenly by the parties hereto except that the
finding or originating party (JAMtv or Wenner Media as the case may be)
shall be entitled to a fifteen percent (15%) origination commission or
finder's fee off the top of any revenues with the remaining revenues being
shared equally.
11. Taxes. Each party shall be responsible for any sales, use or other
-----
tax assessed in connection with the services performed, licenses granted, or
programming made available by such party hereunder.
12. Exclusivity. Except for the AOL Rolling Stone Site and any websites
-----------
associated with foreign editions of Rolling Stone, and except as agreed to by
JAMtv pursuant to paragraph (c) of Section 10, JAMtv shall be the exclusive
provider of Rolling Stone Content on the Interactive Network and Wenner Media
shall not, and shall cause each of its affiliates not to, use, license, grant
any right to use, sublicense, or otherwise transfer any right, title or interest
in or to the Rolling Stone Content or any content of Rolling Stone magazine to
any other person or entity for use in connection with the Interactive Network or
in the design, operation, distribution, display, transmission, marketing,
advertising, or promotion of goods and services thereon.
13. Proprietary Rights.
------------------
(a) Rights Clearances. Subject to the terms of this Agreement, Wenner
-----------------
Media shall obtain the necessary rights clearances and shall be responsible
for payment of any license fees or royalties for such rights clearances,
including, without limitation, copyright or public performance music
license fees (through, for example, ASCAP, BMI or SESAC) for any
merchandise or Rolling Stone Content made available by Wenner Media to
JAMtv pursuant to this Agreement, except as otherwise provided herein.
<PAGE>
(b) JAMtv Content. Wenner Media acknowledges that all right, title
-------------
and interest in the JAMtv Content and other Proprietary Rights embodied
therein are and shall remain in JAMtv and its licensors. Wenner Media
shall not acquire any right, title, or interest in the Proprietary Rights
created or developed by JAMtv (whether or not incorporating the Rolling
Stone Content or Rolling Stone Trademarks) in connection with this
Agreement, other than as expressly reserved herein. If any JAMtv Content
or segment thereof is provided to Wenner Media on disc, tape or other
tangible embodiment, such disc, tape or other tangible embodiment shall
remain the property of JAMtv and shall be returned promptly upon JAMtv's
request therefor. Except as expressly provided in this Agreement, Wenner
Media is not authorized to, shall not, and shall not authorize any access,
transmission, duplication, or any other use whatsoever of any JAMtv
Content, any portion thereof, or any derivative work thereof or any other
programs or broadcast material which may have been transmitted or
distributed by JAMtv to Wenner Media, the Rolling Stone Network or
otherwise. Wenner Media will not authorize, cause, permit, or enable any
JAMtv Content or portion thereof to be recorded, stored, duplicated,
rebroadcast, or otherwise transmitted or distributed or used for any
purpose.
(c) Rolling Stone Content. JAMtv acknowledges that all right, title
---------------------
and interest in the Rolling Stone Content and other Proprietary Rights
embodied therein are and shall remain in Wenner Media and its licensors.
JAMtv shall not acquire any right, title, or interest in the Proprietary
Rights created or developed by Wenner Media (whether or not incorporating
the JAMtv Content) in connection with this Agreement, other than as
expressly granted herein. If any Rolling Stone Content or segment thereof
is provided to JAMtv on disc, tape or other tangible embodiment, such disc,
tape or other tangible embodiment shall remain the property of Wenner Media
and shall be returned promptly upon termination of this Agreement, except
as otherwise provided herein. Except as expressly provided in this
Agreement, and with the express understanding that transmission to, access
by and syndication of the content of the Rolling Stone Network to JAMtv-
affiliated radio stations and clubs is expressly authorized hereunder,
JAMtv is not authorized to, shall not, and shall not authorize any access,
transmission, duplication, or any other use whatsoever of any Rolling Stone
Content, any portion thereof, or any derivative work thereof or any other
programs or broadcast material which may have been transmitted or
distributed by Wenner Media to JAMtv, the Rolling Stone Network or
otherwise. JAMtv shall not challenge Wenner Media's right, title or
interest in the Rolling Stone Content or otherwise interfere with Wenner
Media's use thereof, except as such use may be inconsistent with any
exclusive rights of JAMtv granted pursuant to this Agreement or the other
Affiliation Agreements.
(d) User Data. Each party shall be deemed a co-owner of User Data.
---------
"User Data" shall mean; (a) all user data collected from the Rolling Stone
Network, including without limitation, any information provided by or
concerning users of the Rolling Stone Network (other than subscription
information obtained by Wenner Media pursuant to Section 10(b)); (b) all
user data collected from the Tunes Music Network, including without
limitation, any information provided by or concerning users of the Tunes
Music Network in all cases where (i) the user linked to the Tunes Music
Network from the Rolling Stone Network or (ii) linked to the Rolling Stone
Network from the Tunes Music Network. Wenner Media shall have access and
the right to use such User Data for any purpose that it deems appropriate
without any obligation to obtain consent from Tunes. User Data shall not
include any user data or information collected from Rolling Stone Daily
Music Connection, which shall be the sole, exclusive property of Wenner
Media.
(e) Confidential Information. Each party will, to the extent and in
------------------------
accordance with the policies used to protect its own information of similar
importance, use its best efforts to refrain from and prevent the use,
duplication, or disclosure of during or after the Term any Confidential
Information of the other party, disclosed or obtained by such party while
performing its obligations under this Agreement, except when such use or
disclosure is for the limited purpose of performing
<PAGE>
obligations under this Agreement. Neither party will have an obligation of
confidentiality with regard to any information insofar as the same (i) was
known to such party prior to disclosure; (ii) is at the time of disclosure
publicly available or becomes publicly available other than as a result of
a breach of this Agreement; or (iii) is disclosed to such party by a third
party not under a duty not to disclose such information. In addition, the
confidentiality obligations set forth above will not apply to any
Confidential Information which is disclosed pursuant to any law of the
United States or any state thereof; the order of any court or governmental
agency; or the rules and regulations of any governmental agency. Prior to
any disclosure required by law or order of any court or government agency,
the disclosing party will notify the other party of the required
disclosure. If the required disclosure is to be made within ten (10) days
after the disclosing party becoming aware or informed of the obligation to
disclose, the disclosing party will notify the other party by the end of
the next business day following the day the disclosing party became aware
of its disclosure obligation. The parties agree that an impending or
existing violation of any provision of this Section by one party would
cause the other party irreparable injury for which it would have no
adequate remedy at law, and agree that such other party will be entitled to
obtain immediate injunctive relief prohibiting such violation, in addition
to any other rights and remedies available to it. The inclusion of
copyright notices on any software licensed hereunder does not constitute
publication thereof.
(f) Rolling Stone Trademarks. JAMtv acknowledges that the Rolling
------------------------
Stone Trademarks and all rights therein (with the exception of those rights
expressly granted to JAMtv hereunder) and the goodwill pertaining thereto
belong exclusively to Wenner Media. JAMtv's use of the Rolling Stone
Trademarks shall inure to the benefit of Wenner Media for all purposes,
including without limitation trademark registration. Without limiting the
generality of the foregoing, JAMtv shall not challenge the validity of
Wenner Media's ownership of any Rolling Stone Trademark or any registration
or application for registration thereof or contest the fact that JAMtv's
rights under this Agreement are solely those of a licensee, which rights
terminate upon termination of this Agreement.
(g) Publicity. This Agreement constitutes Confidential Information.
---------
Accordingly, each party shall submit to the other all advertising, written
sales promotion, press releases, and other publicity matters relating to
this Agreement in which the other party's name or trademark is mentioned or
language from which the connection of said name or trademark may be
inferred or implied, and neither party shall publish or use such
advertising, sales promotion, press releases, or publicity matters without
the prior written approval of the other party, which shall not be
unreasonably withheld or delayed. However, either party may include the
other party's name and a mutually agreed factual description of the work
performed under this Agreement in employee communications, in internal
business planning documents, in its reports to stockholders or offering
memoranda, and whenever required by reason of legal, accounting, or
regulatory requirements; provided that prior to such disclosure the party
whose name is mentioned has not less than seven (7) days to review and
comment on such disclosure.
14. Registration and Protection.
---------------------------
(a) Copyright Registration. Except as otherwise expressly authorized
----------------------
by Wenner Media, all registrations and applications for registration of
copyright in the Rolling Stone Content shall be in the name of Wenner
Media. JAMtv, when requested by Wenner Media, shall assist and cooperate
with Wenner Media in connection with any such filings at Wenner Media's
expense.
(b) Actions Affecting Validity. Wenner Media shall not take any
--------------------------
action, not fail to take any action, and use its best efforts not to permit
any action to be taken by others, which would
<PAGE>
in any respect affect the validity or enforcement of the Wenner Media
Licenses or the rights in the Rolling Stone Content granted to JAMtv
herein.
(c) Copyright Notice. JAMtv shall (i) place notices of copyright in a
----------------
manner consistent with Wenner Media's placement thereof on the Rolling
Stone Content which is published by JAMtv, (ii) displaying on one or more
screens of any web site operated by JAMtv a legend reasonably calculated to
warn users that such web site contains proprietary material which may not
be copied without permission, and (iii) display artist attribution or
credits as reasonably requested by Wenner Media on the Rolling Stone
Content which is published by JAMtv.
(d) Trademark Registration. Wenner Media shall be responsible for the
----------------------
prosecution and maintenance of trademark registrations of the Rolling Stone
Trademarks. JAMtv shall cooperate with Wenner Media at Wenner Media's
expense, and shall execute any documents required by Wenner Media and
supply Wenner Media with a reasonable number of specimens to assist Wenner
Media, in the registration, enforcement, or maintenance of any Rolling
Stone Trademark or recordal of JAMtv as a registered user or licensee.
JAMtv agrees not to register, or attempt to register, any Rolling Stone
Trademark or any confusingly similar mark in its own name or any other
name, or to use any Rolling Stone Trademark or any confusingly similar mark
in commerce other than as provided herein.
(e) Third Party Infringement. In the event that either party learns
------------------------
of any infringement, misappropriation or unauthorized use of (i) any of the
Rolling Stone Trademarks in connection with the Rolling Stone Network or
similar products or services, or (ii) any of the Rolling Stone Content,
then the party with such knowledge shall promptly notify the other party
thereof. Wenner Media shall take such actions as it determines are
reasonably necessary or desirable in its sole discretion. JAMtv shall not
undertake any action without the prior written consent of Wenner Media,
which consent shall not be unreasonably withheld with respect to any
infringement or misappropriation of the Rolling Stone Content or the
Rolling Stone Trademarks in connection with the Interactive Network or
similar products or services. Wenner Media shall promptly notify JAMtv as
to whether Wenner Media wishes to prosecute or settle any action with
respect thereto. JAMtv agrees to cooperate with and assist Wenner Media in
taking whatever action Wenner Media determines to be reasonably necessary
or desirable. Wenner Media shall reimburse JAMtv for its reasonable out-
of-pocket attorneys' fees and other costs incurred in investigating,
prosecuting or settling any such claim, suit, damage or loss.
(f) Third Party Claims. If any claim is asserted against either party
------------------
alleging that any of the Rolling Stone Content or Rolling Stone Trademarks
infringes, misappropriates or otherwise violates a third party's rights,
then the party against whom such claim was asserted shall promptly notify
the other party. If such claim is asserted against JAMtv, Wenner Media
shall promptly notify JAMtv whether Wenner Media wishes to conduct a
defense or settlement of any such claim on behalf of JAMtv. Should Wenner
Media elect to conduct such a defense or settlement, Wenner Media shall
have sole control of such defense and any settlement of such claim. JAMtv
shall afford Wenner Media every reasonable assistance in regard to Wenner
Media's defense of any such claim. Should Wenner Media not elect to
conduct such a defense or settlement, JAMtv may elect to conduct its own
defense or settlement, and Wenner Media shall afford JAMtv every reasonable
assistance in regard to JAMtv's defense of any such claim and Wenner Media
shall name itself as a party to such an action if requested by JAMtv.
Wenner Media shall reimburse JAMtv for its reasonable out-of-pocket
attorneys' fees and other costs incurred in connection with investigating
or defending any such claim, suit, damage or loss.
15. Representations and Warranties of Wenner Media.
----------------------------------------------
<PAGE>
(a) Corporate Existence and Standing. Wenner Media is duly organized
--------------------------------
under the laws of the state of Delaware and has all requisite power and
authority, corporate or otherwise, to conduct its business, to own its
property and to execute, deliver and perform all of its obligations under
this Agreement and the other Affiliation Agreements to which it is a party.
(b) Authorization and Validity. The execution and delivery of this
--------------------------
Agreement and the other Affiliation Agreements by Wenner Media have been
duly authorized by proper corporate proceedings, and this Agreement and the
other Affiliation Agreements, upon their execution and delivery, will
constitute legal, valid and binding obligations of Wenner Media,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws affecting the validity
or enforcement of creditors' rights generally.
(c) No Conflict; Approvals. The execution, delivery and performance
----------------------
of this Agreement and the other Affiliation Agreements by Wenner Media, the
consummation by Wenner Media of the transactions contemplated therein, and
compliance by Wenner Media with the provisions thereof (including, without
limitation, its exclusivity obligations hereunder), will not violate any
existing law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on Wenner Media or its articles of incorporation or its
by-laws or the provisions of any instrument or agreement to which Wenner
Media is a party or is subject, or by which it, or its property, is bound
(including, without limitation, any such instrument or agreement with
America Online or Microsoft Corporation), or conflict with or constitute a
default thereunder; and the execution, delivery and performance of this
Agreement and the other Affiliation Agreements, the consummation of the
transactions contemplated therein, and compliance with the provisions
thereof, in each case by Wenner Media, will not require the consent of any
party or the giving of notice to, the exemption by, any registration, or
filing with any governmental authority, to the extent not previously
obtained or made.
(d) Intellectual Property. Wenner Media represents and warrants that
---------------------
(i) it has the full power and authority to grant the Wenner Media Licenses
(as limited by the Third Party Restrictions) and the other rights granted
hereunder, (ii) it is not aware of and has not received any oral or written
notice of any claims adverse to Wenner Media's rights in the Rolling Stone
Content or Rolling Stone Trademarks, or that the Rolling Stone Content or
Rolling Stone Trademarks infringe upon the proprietary rights of any third
party, (iii) it has not granted to any other party any rights to use the
Rolling Stone Content or Rolling Stone Trademarks in connection with the
Interactive Network (except for the AOL Rolling Stone Site and in
connection with the Microsoft Button and the PointCast College Network),
(iv) subject to the Third Party Restrictions, the exercise of the rights
granted JAMtv hereunder will not now or hereafter in any manner constitute
an infringement or other violation of any trademark, trade name, service
mark, copyright, trade secret, patent, or other intellectual property or
proprietary rights of any person, or the publicity, publication, display,
attribution, integrity, approval, performance, moral, or privacy rights of
any person or entity and (v) the Rolling Stone Content is not obscene.
16. Representations and Warranties of JAMtv.
---------------------------------------
(a) Corporate Existence and Standing. JAMtv is duly organized and
--------------------------------
existing in good standing under the laws of the state of Delaware and has
all requisite power and authority, corporate or otherwise, to conduct its
business, to own its property and to execute, deliver and perform all of
its obligations under this Agreement and the other Affiliation Agreements
to which it is a party.
<PAGE>
(b) Authorization and Validity. The execution and delivery of this
--------------------------
Agreement and the other Affiliation Agreements by JAMtv have been duly
authorized by proper corporate proceedings, and this Agreement and the
other Affiliation Agreements, upon their execution and delivery, will
constitute legal, valid and binding obligations of JAMtv, enforceable in
accordance with their respective terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws affecting the validity or
enforcement of creditors' rights generally.
(c) No Conflict; Approvals. The execution, delivery and performance
----------------------
of this Agreement and the other Affiliation Agreements by JAMtv, the
consummation by JAMtv of the transactions contemplated therein, and
compliance by JAMtv with the provisions thereof, will not violate any
existing law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on JAMtv or its articles of incorporation or its by-laws
or the provisions of any instrument or agreement to which JAMtv is a party
or is subject, or by which it, or its property, is bound, or conflict with
or constitute a default thereunder; and the execution, delivery and
performance of this Agreement and the other Affiliation Agreements, the
consummation of the transactions contemplated therein, and compliance with
the provisions thereof, in each case by JAMtv, will not require the consent
of any party or the giving of notice to, the exemption by, any
registration, or filing with any governmental authority, to the extent not
previously obtained or made.
(d) Intellectual Property. JAMtv represents and warrants that (i) it
---------------------
has the full power and authority to provide the JAMtv Content to the
Rolling Stone Network, (ii) it is not aware of and has not received any
oral or written notice of any claims adverse to JAMtv's rights in the JAMtv
Content, or that the JAMtv Content infringes upon the proprietary rights of
any third party, (iii) the use of the JAMtv Content on the Rolling Stone
Network as contemplated hereunder will not now or hereafter in any manner
constitute an infringement or other violation of any trademark, trade name,
service mark, copyright, trade secret, patent, or other intellectual
property or proprietary rights of any person, or the publicity,
publication, display, attribution, integrity, approval, performance, moral,
or privacy rights of any person or entity and (iv) JAMtv Content is not
obscene.
(e) Financials. The unaudited balance sheet of JAMtv as of October
----------
31, 1997, and a schedule of the capitalization of JAMtv as of the date
hereof are attached hereto as Schedule 5.
-----------
17. Conditions Precedent. The obligations of JAMtv and Wenner Media
--------------------
hereunder shall be subject to the satisfaction of the following conditions
precedent.
(a) JAMtv. JAMtv (i) shall have executed and delivered to Wenner
-----
Media: (A) the Escrow Agreement, and (B) the Warrant, and (ii) shall have
deposited the Escrow License Fees in accordance with the Escrow Agreement;
and
(b) Wenner Media. Wenner Media shall have executed and delivered to
------------
JAMtv the Escrow Agreement.
18. Term.
----
(a) Initial Term. The Initial Term of this Agreement shall be eight
------------
(8) years which shall commence on the 10th day of November 1997 and
continue until November 10, 2005, unless earlier terminated as provided in
Section 20.
<PAGE>
(b) Renewal Term. "(b) Renewal Term. In the event that as of the
------------ ------------
expiration of the Initial Term Tunes has successfully consummated a
Qualified Public Offering of its stock and has a market capitalization no
less than $500 million or Tunes has been acquired by another person and
such person or the ultimate parent of such person has a market
capitalization of no less than $1 billion, this Agreement shall be
automatically renewed for a first Renewal Term of five (5) years at the
expiration of the Initial Term. This Agreement may thereafter continue for
additional Renewal Terms upon the mutual agreement of the parties hereto."
19. Default. A Default shall mean the occurrence of any of the following:
-------
(a) Technical Support. If JAMtv fails to maintain the technical
-----------------
reliability reasonably required to make the Rolling Stone Network available
in all respects on commercially reasonable terms (excepting regularly
scheduled maintenance downtime, network and other outages not due to the
actions or fault of JAMtv, delays or other problems associated with or due
to any failures on the part of Wenner Media to timely perform any of its
obligations hereunder) and JAMtv shall not have materially improved such
reliability or availability within 30 days after receiving written notice
thereof from Wenner Media; provided, however, that it shall be deemed a
Default if the Rolling Stone Network is "down" or otherwise unavailable for
reasons other than the foregoing exceptions for a total of more than
twenty-four (24) total hours or twelve (12) consecutive hours in any 60-day
period.
(b) Payment Default. JAMtv fails to pay (whether directly or through
---------------
a direction given under the Escrow Agreement) any License Fee or payment
obligation under Section 9 or any portion thereof required to be paid to
Wenner Media hereunder within 30 days after the date such fee or payment
became due hereunder.
(c) Trademark Misuse. JAMtv breaches its obligations with respect to
----------------
the Rolling Stone Trademarks under Section 6 and fails to cure such breach
within 30 days after receiving written notice thereof from Wenner Media.
(d) Change of Control.
-----------------
(i) Tunes (x) is acquired, or enters into an agreement to be acquired
(in each case, whether by acquisition, merger, consolidation or otherwise)
by, or (y) transfers or agrees to transfer (A) all or substantially all of
its assets to, or (B) beneficial ownership of a majority of the voting
and/or economic interest in the capital stock of Tunes to, or
(ii) the power (whether or not exercised) to elect a majority of
the members of the board of directors of Tunes or to cause the
direction of the management and policies of Tunes is acquired by,
in each case, any entity, other than a Permitted Transferee (as
defined below), reasonably deemed by Wenner Media to be a competitor of
Wenner Media, or otherwise unacceptable to Wenner Media. "Permitted
Transferee" shall mean each entity set forth on Schedule 19(d) attached
hereto.
(e) Other Default by JAMtv. JAMtv fails to provide any or all of the
----------------------
JAMtv Content in a timely fashion and in the form and manner specified
herein or breaches any of its representations, warranties, covenants or its
other obligations set forth herein and shall not have
<PAGE>
remedied, corrected, and/or materially improved its performance or cured
such breach within 60 days after receiving written notice thereof from
Wenner Media.
(f) Performance Default by Wenner Media. Wenner Media fails to
-----------------------------------
provide any or all of the Rolling Stone Content in a timely fashion and in
the form and manner specified herein or breaches any of its
representations, warranties, covenants or its other obligations set forth
herein and shall not have remedied, corrected, and/or materially improved
its performance or cured such breach within 60 days after receiving written
notice thereof from JAMtv.
(g) Insolvency. (i) Either party admits in writing in any proceeding
----------
its inability to pay its debts generally as they become due, or makes a
general assignment for the benefit of creditors, (ii) any proceeding is
instituted by such party seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of
a receiver, trustee, or other similar official for it or for any
substantial part of its property, (iii) there shall be commenced against
such party any case, proceeding or other action of a nature referred to in
clause (ii) which results in the entry of an order for relief or any
adjudication that it is bankrupt or insolvent or which remains undismissed,
undischarged, unstayed or unbounded for a period of 60 days, or (iv) either
party takes any corporate action to authorize any of the actions set forth
in this paragraph.
20. Effect of Default.
-----------------
(a) Termination by JAMtv. JAMtv may terminate this Agreement if a
--------------------
Default by Wenner Media occurs, which termination shall be effective upon
30 days' written notice to Wenner Media from JAMtv. If this Agreement is
terminated by JAMtv for such Default, JAMtv shall have no further
obligation to pay the License Fees and any amounts remaining subject to the
Escrow Agreement shall be returned to JAMtv promptly.
(b) Termination by Wenner Media. "If this Agreement is terminated by
---------------------------
Wenner Media for such Default, Tunes shall have no further obligation to
pay the License Fees other than to pay to Wenner Media any amounts
remaining subject to the Escrow Agreement or, if no such amounts remain,
the next quarterly payment of the License Fees due pursuant to Section 9;
provided, however, that in the event of a Default pursuant to paragraph (d)
-------- -------
of Section 19 in which the Transferee is a public company, Tunes shall have
no further obligation to pay the License Fees and any amounts remaining
subject to the Escrow Agreement shall be returned to Tunes promptly.
(c) Effect of Termination. Upon expiration or termination of this
---------------------
Agreement, the Wenner Media Licenses shall terminate and JAMtv shall no
longer be entitled to receive from Wenner Media any additional Rolling
Stone Content and shall no longer use any Rolling Stone Content or Rolling
Stone Trademarks; provided, however, that upon expiration or termination by
JAMtv, the parties will negotiate in good faith for a royalty-bearing
license commencing upon termination of the Wenner Media Licenses to use
Archival Rolling Stone Content on such terms and conditions as may be
mutually agreed by the parties. To the extent that the parties are unable
to agree on such a license, JAMtv shall provide to Wenner Media all
materials containing Rolling Stone Content (including any electronic
versions thereof on magnetic or other storage media).
(d) Termination Not Exclusive Remedy. Termination of this Agreement
--------------------------------
by either party hereunder shall not preclude any other rights or remedies
to which such party may be entitled.
<PAGE>
21. Force Majeure. Neither party will have any liability hereunder if
-------------
performance by such party shall be prevented, interfered with or omitted because
of labor dispute, failure of facilities, act of God, natural disaster, laws,
government or court action, or any other cause beyond the control of the party
so failing to perform hereunder.
22. Limitation of Liability; Indemnification; Insurance.
---------------------------------------------------
(a) Limitation of Liability. EXCEPT FOR INDEMNIFICATION OBLIGATIONS,
-----------------------
IF ANY, OF A PARTY FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS
PURSUANT TO PARAGRAPH (D) OF SECTIONS 15 AND 16, OR WENNER MEDIA'S
INDEMNIFICATION OBLIGATIONS, IF ANY, FOR PRODUCT CLAIMS WITH RESPECT TO THE
ROLLING STONE MERCHANDISE PURSUANT TO PARAGRAPH (C) BELOW, (I) NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR
SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING LOSS OF
GOOD WILL OR BUSINESS PROFITS), OR EXEMPLARY OR PUNITIVE DAMAGES AND (II)
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR
ENTITY FOR DIRECT DAMAGES IN EXCESS OF THE AGGREGATE FEES PAID BY THE
PARTIES UNDER THIS AGREEMENT. NO OFFICER, DIRECTOR, MANAGER, MEMBER, OR
EMPLOYEE OF EITHER PARTY SHALL HAVE ANY PERSONAL LIABILITY UNDER THIS
AGREEMENT AND THE OTHER PARTY HEREBY HOLDS SUCH PERSONS HARMLESS FOR ANY
LIABILITY HEREUNDER.
(b) Limitation of Warranties. (i) JAMTV WILL MAKE THE JAMTV CONTENT,
------------------------
THE JAMTV HOSTING SERVICES, AND OTHER SERVICES AVAILABLE IN ACCORDANCE WITH
THE TERMS HEREOF ON A COMMERCIALLY REASONABLE BASIS, AND DOES NOT WARRANT
OR GUARANTEE THAT THE AVAILABILITY THEREOF WILL BE FREE FROM ERRORS IN
COMMUNICATIONS OR TRANSMISSION. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, JAMTV EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE.
(II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WENNER MEDIA
EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE. (III)
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY ENDORSES,
WARRANTS, OR GUARANTEES ANY PRODUCT OR SERVICE OFFERED THROUGH THE ROLLING
STONE NETWORK AND NEITHER PARTY WILL BE A PARTY TO OR IN ANY WAY MONITOR
ANY TRANSACTION BETWEEN ANY PERSON AND ANY THIRD PARTY PROVIDERS OF
PRODUCTS OR SERVICES.
(c) Indemnification. JAMtv will indemnify Wenner Media, its officers,
---------------
directors, managers, employees, agents, and telecommunications providers
against all claims, damages, losses, costs and expenses (including
attorneys' fees) which Wenner Media may incur as a result of JAMtv's breach
of any representation, warranty, or covenant contained in this Agreement.
Wenner Media will indemnify JAMtv, its officers, directors, managers,
employees, agents, and telecommunications providers against all claims,
damages, losses, costs and expenses (including attorneys' fees) which JAMtv
may incur as a result of Wenner Media's breach of any representation,
warranty, or covenant contained in this Agreement, or any product liability
claims made by any party with respect to the Rolling Stone Merchandise.
This paragraph shall not be in limitation of any other indemnification
obligations of the parties set forth in the other Affiliation Agreements.
(d) Insurance. Each of JAMtv and Wenner Media agrees to maintain
---------
comprehensive general liability insurance, including contractual and
product liability insurance in the amount of $5 million per incident and $5
million umbrella excess coverage.
23. Representation on Board. During the Term, Wenner Media shall have
-----------------------
the right to appoint one member of JAMtv's Board of Directors.
<PAGE>
24. Miscellaneous.
-------------
(a) Governing Law. Any question as to the validity, construction or
-------------
performance of this Agreement shall be construed in accordance with and
subject to the substantive laws (as opposed to the conflicts of laws
provisions) of the State of New York and, where applicable, the laws of the
United States.
(b) Jurisdiction. JAMtv and Wenner Media agree that all claims,
------------
disputes, or controversies between them arising out of, connected with,
related to, or incidental to the relationship established between them in
connection with this Agreement, whether arising at law or equity in
contract, tort, equity, or otherwise, if pursued in court shall be resolved
only by state or federal courts located in New York County, New York, but
each party hereto acknowledges that any appeals from those courts may have
to be heard by a court located outside of New York County, New York. Each
party hereto waives in all disputes any objection that it may have to the
location of the court considering the dispute. Each party consents that
service of process may be effected by certified or registered mail, return
receipt requested, to the address set forth below each party's signature to
this Agreement.
(c) Unforeseen Circumstances. Due to the rate of change in Internet
------------------------
businesses and the high degree of uncertainty as to the competitive
environment, the parties agree to use their reasonable good faith efforts
in the event of unforeseen circumstances or other material external changes
which may require further discussions and negotiations leading to
amendments to this Agreement, if any, to be mutually agreed upon between
the parties.
(d) Entire Agreement. This Agreement, together with the other
----------------
Affiliation Agreements, contain the entire understanding between JAMtv and
Wenner Media with respect to its subject matter, supersedes all previous
oral or written agreements or understandings between them with respect
thereto, and shall not be modified except by a writing signed by all
parties hereto.
(e) No Waiver. No waiver by either party or any breach of this
---------
Agreement by the other shall be deemed to be a waiver of any preceding, or
subsequent breach thereof. Any waiver must be in writing executed by the
waiving party.
(f) Partial Invalidity. If any portion of the Agreement shall be held
------------------
to be illegal, invalid or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof,
and this Agreement shall be constructed as if such invalid, illegal or
unenforceable provision had never been contained herein. Additionally, in
lieu of each such illegal, invalid or unenforceable provision, there shall
be added automatically as part of this Agreement a provision as similar to
such former provision as shall be legal, valid and enforceable.
(g) Notices. Except as otherwise expressly provided herein, all
-------
notices and other communications required or desired to be served, given,
or delivered hereunder shall be made in writing or by a telecommunications
device capable of creating a written record and shall be addressed to the
party to be notified at the respective addresses set forth on the signature
page hereto or, as to each party, at such other address as designated by
such party in a written notice to the other party. Notices shall be deemed
to have been duly given (i) if delivered personally or otherwise actually
received, (ii) if sent by overnight delivery service, (iii) if mailed by
first class United States mail, postage prepaid, registered or certified,
with return receipt requested, or (iv) if sent by telecopy. Notice mailed
as provided in clause (iii) above shall be effective upon the expiration of
seven (7) days after its deposit in the United States mail and notice sent
as provided in clause (iv) above shall be effective upon transmission.
Notice given in any other manner des-
<PAGE>
cribed in this paragraph shall be effective upon receipt by the addressee
thereof; provided, however, that if any notice is tendered to an addressee
-------- -------
and delivery thereof is refused by such addressee, such notice shall be
effective upon such tender.
(h) Section Headings. Section and Paragraph headings used herein are
----------------
for informational purposes only and shall not define nor limit the
provisions of this Agreement.
(i) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of Tunes and its successors and assigns and Wenner
Media and its successors and assigns permitted hereunder; provided,
however, that neither party hereto shall assign, subcontract or otherwise
delegate its obligations hereunder without the prior written consent of the
other party, which consent shall not be unreasonably withheld, and further
provided that no consent shall be required by Wenner Media with respect to
an assignment of this Agreement, whether by operation of law or otherwise,
in connection with the sale of all or substantially all of the stock or
assets of Tunes to a Permitted Transferee or in connection with a merger,
consolidation, or other reorganization of Tunes with a Permitted
Transferee.
(j) Independent Contractors. Each party agrees it is and will be an
-----------------------
independent contractor as to the other party and not an agent, employee,
partner or joint venturer of or with the other party. Without limiting the
foregoing, neither party nor any officer or employee of such will have any
right to bind the other party, to make any representations or warranties on
behalf of the other, to accept service of process, to receive notice, or to
perform any act or thing on behalf of the other party other than as
expressly authorized by such other party in its sole discretion. JAMtv
shall not be obligated to pay any fees or other compensation to Wenner
Media in connection with the transactions contemplated by this Agreement
other than as expressly contemplated by Sections 9, 10 and 17 of this
Agreement.
(k) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each such counterpart shall be an original instrument, and
all such counterparts shall together constitute the same agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Affiliation Agreement as of the day and year first above written.
STRAIGHT ARROW PUBLISHERS COMPANY, L.P.
By: _________________________________
Name:
Title:
1290 Avenue of the Americas
New York, NY 10104
Attn.: Tom Cohen
Facsimile: (212) 484-4290
JAMTV CORPORATION
By: _________________________________
Name: Howard A. Tullman
Title: Chief Executive Officer
640 N. LaSalle Street
Suite 560
Chicago, IL 60610
Attn.: Howard A. Tullman
Facsimile: (312) 642-0616
<PAGE>
AMENDMENT NO. 1 TO THE AFFILIATION AGREEMENT
AMENDMENT NO. 1 (the "Amendment"), dated as of October 8, 1999, amending
the Affiliation Agreement (the "Affiliation Agreement"), dated as of November
10, 1997, by and between Tunes.com Inc., a Delaware corporation formerly known
as JAMtv Corporation ("Tunes"), and Straight Arrow Publishers Company, L.P., a
Delaware limited partnership ("Wenner Media").
WHEREAS, Tunes and Wenner Media are party to a certain Affiliation
Agreement, dated as of November 10, 1997 (the "Affiliation Agreement") and
Tunes has issued to Wenner Media a warrant dated November 10, 1997 to purchase
shares of its common stock, par value $.01 per share (the "Warrant");
WHEREAS, Tunes and Wenner Media desire to amend certain terms of the
Affiliation Agreement in accordance with the terms set forth below;
WHEREAS, in consideration for and as inducement to Wenner Media entering
into this Amendment, subject to the effectiveness of this Amendment, Tunes shall
issue to Wenner Media a warrant to purchase shares of common stock, par value
$.01 per share of Tunes for the number of shares of common stock of Tunes equal
to 18.5% of the outstanding stock of Tunes computed on a fully-diluted basis as
of the date of issuance of such warrant (the "Second Warrant"); and
WHEREAS, as a condition and inducement to Wenner Media's entering into this
Amendment, Tunes has agreed to amend the Amended and Restated Registration
Rights Agreement (the "Existing Registration Rights Agreement"), dated as of May
4, 1999, by and among Tunes and the investors named on the signature pages and
schedules thereto (as so amended, the "New Registration Rights Agreement") to
add Wenner Media as a party thereto and to grant Wenner Media registration
rights at least as favorable as the registration rights of the Investors (as
defined in the Existing Registration Rights Agreement) party to the Existing
Registration Rights Agreement, and the effectiveness of this Agreement is
conditioned on the execution of the New Registration Rights Agreement in form
and substance reasonably satisfactory to Wenner Media on or prior to December 8,
1999.
NOW, THEREFORE, in consideration of the foregoing recitals (which are
incorporated herein by this reference), the mutual promises contained herein,
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Tunes and Wenner Media hereby agree as follows:
1. Effectiveness. The effectiveness of this Amendment is subject to
-------------
and conditioned upon the execution of the New Registration Rights Agreement
which shall (i) provide that Wenner Media is added as a party thereto and (ii)
grant to Wenner Media registration rights at least as favorable as those of the
Investors party to the Existing Registration Rights Agreement in form and
substance reasonably satisfactory to Wenner Media on or prior to December 8,
1999. In the event that the New Registration Rights Agreement is not executed in
form and substance reasonably satisfactory to Wenner Media on or prior to
December 8, 1999, this Amendment shall be null and void and of no force and
effect and no party shall have any rights hereunder. Simultaneous with the
delivery to Wenner Media of the
<PAGE>
New Registration Rights Agreement, Tunes shall deliver to Wenner Media the
Second Warrant duly issued in the form attached hereto as Exhibit A.
2. Capitalized Terms. Capitalized terms used herein and not
-----------------
otherwise defined herein shall have the meanings provided therefor in the
Affiliation Agreement.
3. The Affiliation Agreement shall be amended such that all
references to "JAMtv Corporation" or the defined term "JAMtv" shall be deemed to
be references to "Tunes.com Inc." and the defined term "Tunes."
4. The definition of "Rolling Stone Network in Section 1 of the
Affiliation Agreement is hereby amended by deleting each such definition and
inserting in lieu thereof the following:
"Rolling Stone Network" shall mean the Rolling Stone.com Web
site or any Rolling Stone-branded successor of such Web site
operated by Tunes pursuant to this Agreement, as updated,
modified, or supplemented from time to time."
5. Notwithstanding Section 12 or any other provision of the
Affiliation Agreement, Wenner Media retains the unrestricted right to advertise,
market, promote and sell both subscriptions and renewal subscriptions for any
Wenner Media magazine title on any Interactive Network without any obligation to
obtain consent from Tunes or to share revenue or pay commissions on sales
derived from such subscriptions or subscription renewals; provided however, that
in the case of sales of magazine subscriptions and renewal subscriptions for
Rolling Stone magazine on the Interactive Network, such promotions shall link to
subscription pages of the Rolling Stone Network. In furtherance of the
foregoing, it is understood that (a) the advertisement, marketing, promotion
and/or sales of subscriptions or renewal subscriptions of Wenner Media magazine
titles shall not be deemed a "third party opportunity" under Section 10(c) of
the Affiliation Agreement; (b) such subscriptions shall not be considered
"Rolling Stone Merchandise" for purposes of this Section; and (c) subscriptions
or renewal subscriptions shall not be, for any purpose, related to the
calculation or payment of revenue under the Affiliation Agreement. In accordance
with Section 13(d) of the Affiliation Agreement, any and all data obtained
through subscription or subscription renewal efforts shall remain the sole,
exclusive property of Wenner Media, without exception, including those
subscriptions obtained through the subscription solicitation button on the
Rolling Stone Network website.
<PAGE>
6. Each of Sections 9(a), (b), (c) and (e) of the Affiliation
Agreement is hereby amended by deleting each such section and inserting in lieu
thereof the following:
"(a) Year One. Tunes will pay $1,000,000 to Wenner Media for
--------
the one year period commencing on March 1, 1998 (the "Commencement
Date"), which shall be payable in four (4) equal quarterly
installments of $250,000 each. The first installment shall be payable
on January 6, 1998, the second installment shall be payable on April
6, 1998, the third installment shall be payable on July 6, 1998, and
the fourth installment shall be payable on October 6, 1998.
(b) Year Two. Tunes will pay $1,000,000 to Wenner Media for
--------
the one year period commencing on the first anniversary of the
Commencement Date, which shall be payable in four (4) equal
installments of $250,000 each. The first installment shall be payable
on January 6, 1999, the second installment shall be payable on April
6, 1999, the third installment shall be payable on July 6, 1999, and
the fourth installment shall be payable on October 6, 1999.
(c) Year Three. Tunes will pay $1,000,000 to Wenner Media for
----------
the one year period commencing on the second anniversary of the
Commencement Date, which shall be payable in four (4) equal
installments of $250,000 each. The first installment shall be payable
on January 6, 2000, the second installment shall be payable on April
6, 2000, the third installment shall be payable on July 6, 2000, and
the fourth installment shall be payable on October 6, 2000."
(d) Scheduled License Fees for Renewal Term(s). Tunes will pay
------------------------------------------
$1,250,000 to Wenner Media for each one year period commencing on each
anniversary of the Commencement Date during the period of March 1,
2001 through February 28, 2006, and $1,500,000 for each one year
period commencing on each anniversary of the Commencement Date during
the period of March 1, 2006 through February 28, 2011. License fees
for each annual period during such term shall be payable in four (4)
equal installments on each of January 1, April 1, July 1, and October
1 dates of the year in which such annual period commences (i.e., the
---
payments in respect of the annual period commencing March 1, 2001
shall be made on January 1, April 1, July 1 and October 1, 2001.) If
there shall be a first Renewal Term pursuant to Section 18, Tunes will
pay to Wenner Media $1,500,000, plus an amount equal to the percentage
increase in the Consumer Price Index for the immediately preceding
year, for each one year period commencing on each anniversary of the
First Payment Date during the Renewal Term, which shall be payable in
four (4) equal installments each on the January 1, April 1, July 1,
and October 1 dates of the year in which such annual period
commences."
7. Section 13(d) of the Affiliation Agreement is hereby amended by
deleting such section and inserting in lieu thereof the following:
<PAGE>
"Each party shall be deemed a co-owner of User Data. "User Data"
shall mean all user data collected from the Rolling Stone Network,
including without limitation, any information provided by or
concerning users of the Rolling Stone Network (other than subscription
information obtained by Wenner Media pursuant to Section 10(b)).
During the Term, each party shall have the right to use such User Data
only for internal purposes, unless it obtains the consent of the other
party. Notwithstanding the foregoing, during the Term, Wenner Media
may communicate with or solicit users of the Rolling Stone Network
using User Data through the Rolling Stone Network and through the
Rolling Stone branded newsletters offered on the Rolling Stone Network
(the "Newsletters"). Wenner Media may solicit subscribers of the
Newsletters who have opted-in to receive such solicitations, with
offers of any kind, once per calendar month during the Term. Such
solicitations shall be solely through an email facilitated through
Tunes on behalf of Wenner Media. With respect to the Rolling Stone
Daily Music Connection, Wenner Media shall retain sole and exclusive
control over the content of the daily emails sent to subscribers.
Notwithstanding the foregoing, the form and content of all
communications, including the Rolling Stone Daily Music Connection,
shall be consistent with the terms of this Agreement, including,
without limitation, Section 10(c)."
8. Section 18 (a) of the Affiliation Agreement is hereby amended by
deleting such section and inserting in lieu thereof the following:
"(a) Initial Term. The Initial Term of this Agreement shall commence
------------
on the 10th day of November 1997 and continue until February 28, 2011,
unless earlier terminated as provided in Section 20."
9. Section 18 (b) of the Affiliation Agreement is hereby amended by
deleting such section and inserting in lieu thereof the following:
"(b) Renewal Term. In the event that as of the expiration of the
------------
Initial Term Tunes has successfully consummated a Qualified Public
Offering of its stock and has a market capitalization no less than $1
billion or Tunes has been acquired by another person and such person
or the ultimate parent of such person has a market capitalization of
no less than $2 billion, this Agreement shall be automatically renewed
for a first Renewal Term of five (5) years at the expiration of the
Initial Term. This Agreement may thereafter continue for additional
Renewal Terms upon the mutual agreement of the parties hereto."
10. Section 19(d) of the Affiliation Agreement is hereby deleted such
section and inserting in lieu thereof the following:
"(d) Change of Control.
-----------------
(i)Tunes (x) is acquired, or enters into an agreement to be
acquired (in each case, whether by acquisition, merger, consolidation
or otherwise) by, or (y) transfers or agrees to transfer (A) all or
substantially all of its assets to, or (B) beneficial
<PAGE>
ownership of a majority of the voting and/or economic interest in the
capital stock of Tunes to, or
(ii) the power (whether or not exercised) to elect a majority of
the members of the board of directors of Tunes or to cause the
direction of the management and policies of Tunes is acquired by,
in each case, any entity, other than a Permitted Transferee (as
defined below), reasonably deemed by Wenner Media to be a competitor
of Wenner Media, or otherwise unacceptable to Wenner Media. "Permitted
Transferee" shall mean each entity set forth on Schedule 19(d)
attached hereto as such Schedule may be amended from time to time with
the addition of entities that Wenner Media has consented to be deemed
Permitted Transferees; provided, however, that no such entity shall be
deemed a Permitted Transferee unless and until such entity has agreed
in writing to expressly assume the obligations of Tunes under this
Agreement and the obligations of the Issuer (as such term is defined
in the Warrant and the Second Warrant) under the Warrant and the
Second Warrant."
11. Section 20(b) of the Affiliation Agreement is hereby amended by
deleting such section and inserting in lieu thereof the following:
"Wenner Media may terminate this Agreement if a Default by Tunes
occurs, which termination shall be effective upon 30 days' written
notice to Tunes from Wenner Media. If this Agreement is terminated by
Wenner Media for such Default, Tunes shall have no further obligation
to pay the License Fees other than to pay to Wenner Media any amounts
remaining subject to the Escrow Agreement or, if no such amounts
remain, the next quarterly payment of the License Fees due pursuant to
Section 9; provided, however, that in the event of a Default pursuant
-------- -------
to paragraph (d) of Section 19 in which the Transferee is a public
company, Tunes shall have no further obligation to pay the License
Fees and any amounts remaining subject to the Escrow Agreement shall
be returned to Tunes promptly."
12. Section 24(i) of the Affiliation Agreement is hereby deleted in
its entirety and replaced with the following:
"(i) Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of Tunes and its successors and assigns and Wenner
Media and its successors and assigns permitted hereunder; provided,
however, that neither party hereto shall assign, subcontract or otherwise
delegate its obligations hereunder without the prior written consent of the
other party, which consent shall not be unreasonably withheld or delayed,
and further provided that no consent shall be required by Wenner Media with
respect to an assignment of this Agreement, whether by operation of law or
otherwise, in connection with the sale of all or substantially all of the
stock or assets of Tunes to a Permitted Transferee or in connection with a
merger, consolidation, or other reorganization of Tunes with a Permitted
Transferee."
<PAGE>
13. This Amendment is limited precisely as written and shall not be
deemed to be an amendment to any other term or condition of the Affiliation
Agreement or any of the documents referred to therein. Wherever the Affiliation
Agreement is referred to in the Affiliation Agreement or in any other
agreements, documents and instruments, such reference shall be to the
Affiliation Agreement as amended hereby. Except as expressly amended hereby,
the terms and conditions of the Affiliation Agreement shall continue in full
force and effect.
14. In the event of any inconsistency or conflict between this
Amendment and the Affiliation Agreement, the terms, provisions and conditions of
this Amendment shall govern and control.
15. This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
16. Wenner Media hereby irrevocably waives the requirement under
Section 5(e) of the Warrant that any Acquiring Person or any Parent of the
Acquiring Person (all as defined in the Warrant) be required to file, and in
each of its three fiscal years immediately preceding the date of the
consummation of a transaction described in Section 5(e) has filed reports with
the Securities and Exchange Commission pursuant to section 13 or section 15(d)
of the Exchange Act (as defined in the Warrant) if (a) such Acquiring Person or
any Parent of the Acquiring Person is a Permitted Transferee or otherwise not
deemed by Wenner Media to be a competitor of Wenner Media or otherwise
unacceptable to Wenner Media in accordance with Section 19(d) of the Affiliation
Agreement and (b) concurrently with the consummation of such transaction, the
Acquiring Person shall expressly assume in writing the obligations of the Issuer
(as such term is defined in the Warrant) under the Warrant.
17. Notwithstanding anything to the contrary set forth herein or in
the Warrant, the parties agree that the provisions of Sections 5(m), 5(n), and
5(o) of the Warrant shall not apply to any transactions following the
acquisition of Tunes by Permitted Transferee that expressly assumes in writing
the obligations of the Issuer under the Warrant and the Second Warrant (in each
case as defined therein).
18. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW
<PAGE>
YORK WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF RELATING TO CONFLICTS OF
LAW.
[Signature Page To Follow]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the day and year first above written.
STRAIGHT ARROW PUBLISHERS COMPANY, L.P.
By: _________________________________
Name:
Title:
1290 Avenue of the Americas
New York, NY 10104
Attn.: John Lagana
Facsimile: (212) 484-4290
TUNES.COM INC.
By: _________________________________
Name: Howard A. Tullman
Title: Chief Executive Officer
640 N. LaSalle Street
Suite 560
Chicago, IL 60610
Attn.: Howard A. Tullman
Facsimile: (312) 654-1099
