AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 23, 2000
REGISTRATION STATEMENT NO. 333-94891
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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YUPI INTERNET INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
FLORIDA 7375 65-0796526
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
YUPI INTERNET INC.
830 LINCOLN ROAD, SECOND FLOOR
MIAMI BEACH, FLORIDA 33139
(305) 604-0366
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
OSCAR L. COEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
YUPI INTERNET INC.
830 LINCOLN ROAD, SECOND FLOOR
MIAMI BEACH, FLORIDA 33139
(305) 604-0366
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
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<S> <C>
STEPHEN A. HURWITZ, ESQ. NANCY A. SPANGLER, ESQ.
WILLIAM B. SIMMONS, ESQ. PIPER MARBURY RUDNICK & WOLFE LLP
TESTA, HURWITZ & THIBEAULT, LLP COMMERCE EXECUTIVE PARK III, SUITE 610
125 HIGH STREET 1850 CENTENNIAL PARK DRIVE
BOSTON, MASSACHUSETTS 02110 RESTON, VIRGINIA 20191
(617) 248-7000 (703) 391-7100
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to the Form S-1 Registration Statement is a Part II
filing solely to file certain exhibits and make other technical changes.
Accordingly, a preliminary prospectus has been omitted.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses (other than underwriting discounts and commissions)
payable in connection with the sale of the common stock offered hereby are as
follows:
<TABLE>
<S> <C>
SEC registration fee ................................... $45,540
NASD filing fee ........................................ 17,750
Nasdaq National Market listing fee ..................... *
Printing and engraving expenses ........................ *
Legal fees and expenses ................................ *
Accounting fees and expenses ........................... *
Transfer agent and registrar fees and expenses ......... *
Miscellaneous .......................................... *
-------
$ *
Total ................................................ =======
</TABLE>
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Yupi will bear all expenses shown above.
* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act and Yupi's Fourth Amended and
Restated Articles of Incorporation and Amended and Restated By-Laws provide for
indemnification of Yupi's directors and officers for liabilities and expenses
that they may incur in such capacities. In general, directors and officers are
indemnified with respect to actions taken in good faith in a manner reasonably
believed to be in, or not opposed to, the best interests of Yupi and, with
respect to any criminal action or proceeding, actions that the indemnitee had
no reasonable cause to believe were unlawful. Reference is made to Yupi's
Fourth Amended and Restated Articles of Incorporation and Amended and Restated
By-Laws filed as Exhibits 3.02 and 3.04 hereto, respectively.
The Underwriting Agreement provides that the underwriters are obligated,
under certain circumstances, to indemnify directors, officers and controlling
persons of Yupi against certain liabilities, including liabilities under the
Securities Act of 1933. Reference is made to the form of Underwriting Agreement
filed as Exhibit 1.01 hereto.
In addition, Yupi has a directors' and officers' liability insurance
policy.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since its inception, the registrant has sold the following securities
(which have been adjusted to reflect the 1,000-for-1 stock split on December
28, 1998 and the 25-for-1 stock split effected in the form of a stock dividend
on May 12, 1999) that were not registered under the Securities Act:
1. On October 20, 1997, the registrant sold an aggregate of 10,625,000
shares of its common stock to Camilo Cruz and Carlos Cardona at a price
of $0.00004 per share for the aggregate purchase price of $425.
2. On May 27, 1998, July 23, 1998 and November 15, 1998, the registrant
sold an aggregate of 2,287,500 shares of its common stock to Ariel
Bentata at a price of $0.022 per share for the aggregate purchase price
of $50,000.
3. On November 15, 1998, in connection with the execution of a settlement
agreement between the registrant, Craig Doriot, Camilo Cruz, Carlos
Cardona and Ariel Bentata, the registrant sold 2,981,250 shares of its
common stock to Mr. Doriot.
II-1
<PAGE>
4. During the period from November 6, 1998 to February 19, 1999, the
registrant sold an aggregate of 742,375 shares of its common stock to 18
investors, including executive officers and directors of the registrant,
at a price of $0.6668 per share for the aggregate purchase price of
approximately $495,209.
5. In March 1999, the registrant sold an aggregate of 264,200 shares of its
common stock to 13 investors, including executive officers and directors
of the registrant, at a price of $1.2528 per share for the aggregate
purchase price of approximately $330,066.
6. On April 23, 1999, the registrant sold (i) 45,620 shares of its Class A
Convertible Preferred Stock to IFX Online, Inc. at a price of $21.92 per
share for the aggregate purchase price of approximately $999,990 and
(ii) an aggregate of 223,500 shares of its Class A Convertible Preferred
Stock to IFX Online, Inc. and Interprise Technology Partners, L.P. at a
price of $31.32 per share for the aggregate purchase price of
approximately $7,000,020.
7. On May 13, 1999, the registrant sold 95,785 shares of its Class A
Convertible Preferred Stock to Interprise Technology Partners, L.P. at a
price of $31.32 per share for the aggregate purchase price of
approximately $3,000,000.
8. On July 12, 1999 and July 28, 1999, the registrant sold an aggregate of
31,928 shares of its Class A Convertible Preferred Stock to Interprise
Technology Partners, L.P. at a price of $31.32 per share for the
aggregate purchase price of approximately $1,000,000.
9. On August 2, 1999, the registrant sold 31,929 shares of its Class A
Convertible Preferred Stock to Interprise Technology Partners, L.P. at a
price of $31.32 per share for the aggregate purchase price of
approximately $1,000,000.
10. On August 25, 1999, the registrant issued an aggregate of 261,765 shares
of its common stock to the former shareholders of Proveedora de
Servicios para Red Bogota.com Ltda. as partial consideration for the
purchase of all of the outstanding share capital of such company.
11. On October 1, 1999, the registrant agreed to sell an aggregate of 1,944
shares of its common stock to the owners of certain assets relating to
the Internet domain www.claqueta.com as partial consideration for the
purchase of those assets. These shares were subsequently issued on
November 15, 1999.
12. On October 27, 1999, the registrant sold an aggregate of 2,955,016
shares of its Class B Convertible Preferred Stock to Sony Corporation of
America at a price of $11.60 per share for the aggregate purchase price
of $34,300,000 consisting of $5 million in cash and the obligation to
perform future services valued by the parties at $29,300,000.
13. On November 5, 1999, the registrant sold an aggregate of 5,858,698
shares of its Class C Convertible Preferred Stock to 20 investors at a
price of $11.50 per share for the aggregate purchase price of
approximately $67,375,044, consisting of $64,375,044 in cash and
$3,000,000 in retired debt.
14. On November 29, 1999, the registrant issued an aggregate of 37,397
shares of its common stock to the shareholders of La Cosa Interactive
S.R.L. as partial consideration for the registrant's purchase of all of
the outstanding share capital of such company.
15. During the period from June 1, 1998 to December 31, 1999, the registrant
granted, net of forfeited options, options to purchase an aggregate of
9,289,514 shares of the registrant's common stock with exercise prices
ranging from $0.0001 to $8.00 per share.
No underwriters were involved in the foregoing sales of securities. Such
sales were made in reliance upon the exemption provided by Section 4(2) of the
Securities Act for transactions not involving a public offering and/or
Regulation D and/or Regulation S under the Securities Act and/or Rule 701 under
the Securities Act.
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
1.01 x Form of Underwriting Agreement.
3.01/dagger/ Third Amended and Restated Articles of Incorporation of Yupi, as amended.
3.02/dagger/ Form of Fourth Amended and Restated Articles of Incorporation of Yupi, to be filed
after the closing of this offering.
3.03 x By-laws, as amended, of Yupi.
3.04/dagger/ Form of Amended and Restated By-laws of Yupi, to be effective after the closing of this
offering.
4.01/dagger/ Specimen Certificate for shares of Yupi's Common Stock.
5.01/dagger/ Legal Opinion of Steel Hector & Davis LLP.
10.01*x Yupi Internet Inc. Stock Incentive Plan.
10.02 x Standard Office Lease dated September 22, 1999 by and between Yupi Internet Inc. and
Marina Glencoe, LLC.
10.03 x Second Amended and Restated Registration Rights Agreement dated November 5, 1999.
10.04 + Letter Agreement dated October 27, 1999 by and between Yupi Internet Inc. and Sony
Corporation of America.
10.05 x Lease dated October 11, 1999 by and between Yupi Internet Inc. and 1688 Partners Ltd.
10.06 x Lease Agreement dated April 22, 1999 by and between Yupi Internet Inc. and South
Beach Tristar LLC.
10.07 + Value-Added Link Agreement dated July 20, 1999 by and between AltaVista Equipment
Corporation and Yupi Internet Inc.
10.08 x Unsecured Promissory Note dated April 28, 1999 by Jacqueline O'Brien to Yupi Internet
Inc.
10.09 x Unsecured Promissory Note dated April 28, 1999 by Carlos Cardona to Yupi Internet Inc.
10.10 x Unsecured Promissory Note dated April 28, 1999 by Marlena Delgado to Yupi Internet
Inc.
10.11 x Unsecured Promissory Note dated April 28, 1999 by Oscar Coen to Yupi Internet Inc.
10.12 x Unsecured Promissory Note dated October 27, 1999 by Rudy Vila to Yupi Internet Inc.
10.13 x Unsecured Promissory Note dated November 24, 1999 by Victor Gutierrez to Yupi
Internet Inc.
10.14 x Unsecured Promissory Note dated November 24, 1999 by Gustavo Morles to Yupi
Internet Inc.
10.15 x Unsecured Promissory Note dated November 30, 1999 by Jose Luque to Yupi Internet
Inc.
10.16 x Unsecured Promissory Note dated November 30, 1999 by Rodolfo Vila to Yupi Internet
Inc.
10.17 x Unsecured Promissory Note dated December 23, 1999 by Damaris Valero to Yupi
Internet Inc.
10.18 Promissory Note dated August 6, 1999 by Yupi Internet Inc. to Planificacion y Estrategia
de Internet, S.L.
10.19 + Letter Agreement dated November 4, 1999 by and between Yupi Internet Inc. and News
America Incorporated.
21.01 x Subsidiaries.
23.01/dagger/ Consent of Testa, Hurwitz & Thibeault, LLP.
23.02/dagger/ Consent of Steel Hector & Davis LLP (contained in Exhibit 5.01)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
23.03x Consent of PricewaterhouseCoopers LLP.
23.04x Consent of PricewaterhouseCoopers Auditores, S.L.
23.05x Consent of Price Waterhouse.
24.01x Power of Attorney (See page II-5).
27.01x Financial Data Schedule.
27.02x Financial Data Schedule.
27.03x Financial Data Schedule.
</TABLE>
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* Indicates a management contract or any compensatory plan, contract or
arrangement.
/dagger/ To be filed by amendment.
+ Confidential treatment has been requested as to omitted portions pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
x Previously filed.
(b) Financial Statement Schedules.
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 14 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes (1) to provide to the
underwriters at the closing specified in the underwriting agreement,
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser; (2) that for
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of
the time it was declared effective; and (3) that for the purpose of determining
any liability under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant has duly caused this Amendment to the Registration Statement
(File No. 333-94891) to be signed on its behalf by the undersigned, thereunto
duly authorized, in Miami Beach, Florida on February 23, 2000.
YUPI INTERNET INC.
By: /s/ OSCAR L. COEN
-----------------------------
Oscar L. Coen
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
--------- -------- ----
<S> <C> <C>
/s/ OSCAR L. COEN President, Chief Executive Officer and February 23, 2000
- ----------------------------- Director (Principal Executive Officer)
Oscar L. Coen
/s/ * Senior Vice President, Chief Financial February 23, 2000
- ------------------------------ Officer and Treasurer (Principal
Luis E. San Miguel
Financial and Accounting Officer)
/s/ * Director February 23, 2000
- -----------------------------
Ariel Bentata
/s/ * Director February 23, 2000
- -----------------------------
Carlos Cardona
/s/ * Director February 23, 2000
- -----------------------------
Juan Carlos Campuzano
/s/ * Director February 23, 2000
- -----------------------------
Camilo Cruz
/s/ * Director February 23, 2000
- -----------------------------
Fred Ehrlich
/s/ * Director February 23, 2000
- -----------------------------
David R. Parker
* By: /s/ OSCAR L. COEN
- -----------------------------
Oscar L. Coen
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
1.01 x Form of Underwriting Agreement.
3.01/dagger/ Third Amended and Restated Articles of Incorporation of Yupi, as amended.
3.02/dagger/ Form of Fourth Amended and Restated Articles of Incorporation of Yupi, to be filed
after the closing of this offering
3.03 x By-laws, as amended, of Yupi.
3.04/dagger/ Form of Amended and Restated By-laws of Yupi, to be effective after the closing of this
offering
4.01/dagger/ Specimen Certificate for shares of Yupi's Common Stock.
5.01/dagger/ Legal Opinion of Steel Hector & Davis LLP.
10.01* x Yupi Internet Inc. Stock Incentive Plan.
10.02 x Standard Office Lease dated September 22, 1999 by and between Yupi Internet Inc. and
Marina Glencoe, LLC.
10.03 x Second Amended and Restated Registration Rights Agreement dated November 5, 1999.
10.04 + Letter Agreement dated October 27, 1999 by and between Yupi Internet Inc. and Sony
Corporation of America
10.05 x Lease dated October 11, 1999 by and between Yupi Internet Inc. and 1688 Partners Ltd.
10.06 x Lease Agreement dated April 22, 1999 by and between Yupi Internet Inc. and South
Beach Tristar LLC.
10.07 + Value-Added Link Agreement dated July 20, 1999 by and between AltaVista Equipment
Corporation and Yupi Internet Inc.
10.08 x Unsecured Promissory Note dated April 28, 1999 by Jacqueline O'Brien to Yupi Internet
Inc.
10.09 x Unsecured Promissory Note dated April 28, 1999 by Carlos Cardona to Yupi Internet Inc.
10.10 x Unsecured Promissory Note dated April 28, 1999 by Marlena Delgado to Yupi Internet
Inc.
10.11 x Unsecured Promissory Note dated April 28, 1999 by Oscar Coen to Yupi Internet Inc.
10.12 x Unsecured Promissory Note dated October 27, 1999 by Rudy Vila to Yupi Internet Inc.
10.13 x Unsecured Promissory Note dated November 24, 1999 by Victor Gutierrez to Yupi
Internet Inc.
10.14 x Unsecured Promissory Note dated November 24, 1999 by Gustavo Morles to Yupi
Internet Inc.
10.15 x Unsecured Promissory Note dated November 30, 1999 by Jose Luque to Yupi Internet
Inc.
10.16 x Unsecured Promissory Note dated November 30, 1999 by Rodolfo Vila to Yupi Internet
Inc.
10.17 x Unsecured Promissory Note dated December 23, 1999 by Damaris Valero to Yupi
Internet Inc.
10.18 Promissory Note dated August 6, 1999 by Yupi Internet Inc. to Planificacion y Estrategia
de Internet, S.L.
10.19 + Letter Agreement dated November 4, 1999 by and between Yupi Internet Inc. and News
America Incorporated.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
21.01 x Subsidiaries.
23.01/dagger/ Consent of Testa, Hurwitz & Thibeault, LLP.
23.02/dagger/ Consent of Steel Hector & Davis LLP (contained in Exhibit 5.01)
23.03 x Consent of PricewaterhouseCoopers LLP.
23.04 x Consent of PricewaterhouseCoopers Auditores, S.L.
23.05 x Consent of Price Waterhouse.
24.01 x Power of Attorney (See page II-5).
27.01 x Financial Data Schedule.
27.02 x Financial Data Schedule.
27.03 x Financial Data Schedule.
</TABLE>
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* Indicates a management contract or any compensatory plan, contract or
arrangement.
/dagger/ To be filed by amendment.
+ Confidential treatment has been requested as to omitted portions pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
x Previously filed.
EXHIBIT 10.04
October 27, 1999
Yupi Internet, Inc.
605 Lincoln Road
Suite 401
Miami Beach, FL 33139
Gentlemen:
Reference is made to that certain Purchase Agreement dated August 3, 1999 (the
"Purchase Agreement"), between Yupi Internet, Inc. ("Yupi") and Sony Corporation
of America ("Sony"). This letter agreement (the "Letter Agreement") is being
delivered to Yupi in accordance with and subject to Section 1B of the Purchase
Agreement and the other terms thereof and hereof.
1. SONY OBLIGATIONS
(a) DELIVERY OF SONY SERVICES In consideration for Yupi's sale to Sony
of certain Shares (as defined in the Purchase Agreement), and in connection with
the parties' execution of each of the Purchase Agreement, the Shareholders
Agreement, and the Registration Agreement (as defined in the Purchase Agreement)
(collectively, the "Agreements"), Sony hereby agrees to Deliver to Yupi, during
the Commitment Period, Sony Services having an aggregate Agreed Value of the
Commitment Amount, all on the terms and conditions set forth in this Letter
Agreement. As used in this Letter Agreement:
(i) "Deliver" and "Delivery" shall have the meanings set
forth in subparagraph 2(b) hereof.
(ii) "Commitment Amount" means $29,300,000;
(iii) "Commitment Period" shall mean the period commencing on
the date of this Letter Agreement (or, if later, the date of the
Closing (as defined in the Purchase Agreement)), and ending on the date
on which Sony has Delivered Sony Services for an aggregate Agreed Value
of the Commitment Amount. The parties currently anticipate that the
Commitment Period will not be greater than three (3) years, but
acknowledge that the Commitment Period may be less than or reasonably
more than such time period.
(iv) "Yupi Properties" shall mean (i) any properties listed on
Exhibit A hereto and (ii) any properties developed, acquired or
operated by Yupi and associated with the Yupi family of internet
services during the Commitment Period.
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<PAGE>
(v) "Sony Services" means the services and products described
on Exhibit B hereto. The parties acknowledge that the Sony Services
constitute a wide range of potential activities which the parties may
jointly undertake during the Commitment Period for the purposes of
marketing and promoting the Yupi Properties. It is expressly understood
by the parties that these specific illustrations on Exhibit B are
intended to serve as a blueprint for a dynamic and fluid relationship
between Sony and Yupi and that in conjunction with good faith
discussions between the parties, certain of these opportunities may not
be readily available at a given point in time, and that certain of the
illustrative Sony Services may be altered, substituted or otherwise
modified by the parties.
(vi) "Agreed Value" means the value for the Sony Services (or
component thereof) concerned, as set forth on Exhibit B hereto, or any
subsequent mutually agreed value set forth on any Agreed Plan (as
defined in subparagraph 2(a) hereof) or as otherwise agreed by the
parties from time to time in accordance with this Letter Agreement.
Each of Yupi and Sony agree that the values set forth on Exhibit B in
respect of each Sony Service listed thereon accurately represent the
fair value of such Sony Service as described thereon, as fully
Delivered during the Commitment Period, subject to the subsequent
agreement of the parties as described in the preceding sentence.
(viii) "Agreed Sony-Included Costs" means, in respect of each
Sony Service (or component thereof), the costs identified as "Agreed
Sony-Included Costs" on Exhibit B hereto, or any subsequent mutually
agreed costs set forth on any Agreed Plan (as defined in subparagraph
2(a) hereof) or as otherwise agreed by the parties from time to time in
accordance with this Letter Agreement.
(ix) "Agreed Sony-Provided Intellectual Property" means, in
respect of each Sony Service (or component thereof), the copyright (or,
where noted, other intellectual property rights) identified as "Agreed
Sony-Provided Intellectual Property" on Exhibit B hereto, or any
subsequent mutually agreed rights set forth on any Agreed Plan (as
defined in subparagraph 2(a) hereof) or as otherwise agreed by the
parties from time to time in accordance with this Letter Agreement, and
the rights set forth subparagraph 1(c) hereof.
Sony Services shall be selected and Delivered in the manner and at the times
specified in the applicable Agreed Plan pursuant to subparagraph 2(a) hereof. In
respect of each Sony Service (or component thereof), Sony shall be responsible
for (and shall only be responsible for) the Agreed Sony-Included Costs. In
fulfilling its obligations under this Letter Agreement, Sony will draw upon the
institutional knowledge and experience of itself and certain of its affiliated
companies, including Sony Music Entertainment Inc., InfoBeat LLC and Sony
Pictures Entertainment Inc. In entering into this Letter Agreement, Yupi and
Sony intend that the Yupi Properties will be Sony's preferred Spanish-language
portal, and Yupi and Sony will each use good faith efforts to effectuate this
intent.
Page 2
<PAGE>
(b) SONY/YUPI RELATIONSHIP Even after the termination of the Commitment
Period, but only so long as Sony (or any of its subsidiaries or affiliates)
holds at least 50% of the Shares being acquired under the Purchase Agreement (as
adjusted to reflect stock splits, dividends, combinations, and
recapitalizations), and only so long as Yupi remains a leader in the
Spanish-language entertainment portal market (the "Subparagraph 1(b) Period"),
Sony shall (i) continuously regard Yupi as a strategic component of Sony's
investment portfolio; and (ii) use commercially reasonable efforts to make
available to Yupi a reasonable selection of the Sony Services specified in
paragraph 13 of Exhibit B. Notwithstanding anything to the contrary in the
preceding sentence, in the event Sony exercises its Non-Branded Services Option
as provided in paragraph 3 hereof, then at all times during the Subparagraph
1(b) Period after such exercise, Sony shall be obligated to comply with the
provisions of clause (i), but not the provisions of clause (ii), of the
preceding sentence. Sony's failure to comply with this Section 1(b) shall not
constitute a breach of Sony's material obligations under this Letter Agreement.
(c) AGREED SONY-PROVIDED INTELLECTUAL PROPERTY "Delivery" shall mean,
in respect of each Sony Service (or component thereof), the royalty-free
granting of a non-exclusive license, on such terms as are customary in the
music, film, television, or internet industry (as applicable), for the use set
forth in the applicable Agreed Plan, in and to the Agreed Sony-Provided
Intellectual Property identified on Exhibit B (or Agreed Plan or as otherwise
agreed by the parties) in respect of such Sony Service or component thereof. In
respect of any Sony Service which includes trademarks, trade names, or logos of
any Sony property, "Delivery" shall include a royally-free non-exclusive license
to use such trademark, trade name, or logo as contemplated. In respect of any
Sony Service which includes, as set forth on Exhibit B, any copyright interest
owned or controlled by Sony in any sound recording in an audio or audiovisual
recording, or in any album artwork, "Delivery" shall include a royally-free
non-exclusive license to use such copyright as contemplated. In connection
therewith, Sony and Yupi shall negotiate and execute customary license
agreements for the Sony-Provided Intellectual Property.
(d) FUTURE RELATIONSHIP The parties agree to negotiate in good faith
the terms and conditions for extending the additional cross-marketing and
cross-promotional relationship after the Commitment Period.
2. PROCEDURE
(A) REPRESENTATIVES; MONTHLY MEETINGS A group consisting of an equal
number of Yupi and Sony representatives (the "Representatives") shall meet on a
monthly basis (or at such other frequency as reasonably determined by Sony, but
no less frequently than every six months) throughout the Commitment Period (the
"Monthly Meetings"). At each such Monthly Meeting, the parties shall agree upon
an "Agreed Plan" in accordance with section 2(a)(i) below, AND shall make the
"Determination" in accordance with section 2(a)(ii) below. As used herein,
"Period" means each month (or
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such other period as reasonably determined by Sony, but no less frequently than
every six months) throughout the Commitment Period.
(i) AGREED PLAN At each Monthly Meeting, Yupi shall present
its proposed business and operating plan for the next-succeeding
Period. Such proposed plan shall include a detailed description of
every Sony Service which Yupi requests to be Delivered, and the
preferred timing of such Delivery, during the Period. Sony shall assess
for Yupi the availability of the Sony Services requested and other
factors that affect its ability to Deliver the requested Sony Services
during the Period concerned. Taking these factors into consideration,
the Representatives shall mutually agree upon the Sony Services to be
Delivered during such Period, and, if necessary, on any modifications
to the Agreed Values, Agreed Sony-Included Costs, or Agreed
Sony-Provided Intellectual Property thereof. The operating and business
plan including such agreed Sony Services and Agreed Values, Agreed
Sony-Included Costs, and Agreed Sony-Provided Intellectual Property
shall be deemed the "Agreed Plan" for the Period concerned. Each of
Yupi and Sony hereby acknowledge that the plan attached hereto as
Exhibit C constitutes the Agreed Plan for the Period of the first six
months of the Commitment Period to the best of the parties' ability to
ascertain as of the date of this Letter Agreement, and that the values
set forth next to the Sony Services listed thereon constitute the
Agreed Values for such Services in such Period (unless such Agreed
Values or other terms are subsequently changed by mutual agreement of
the parties).
(ii) DETERMINATION At each Monthly Meeting, the
Representatives shall determine (the "Determination"), in respect of
the Period just then completed, the extent to which Sony Delivered the
Sony Services described in the Agreed Plan during the Period concerned,
and shall then credit to Sony, towards the Commitment Amount, the
Agreed Value of each such Delivered Sony Service as set forth in
Exhibit B (or, as applicable, in the Agreed Plan concerned). In making
such Determination, the Representatives shall take into account the
factors described in subparagraph 2(b) hereof affecting Delivery. In
respect of the Sony Services described in paragraph 13 of Exhibit B,
the parties agree that the full value of such Sony Services shall be
credited towards the Commitment Amount as of the date of Closing.
(b) DELIVERY Sony shall be deemed to have "Delivered" each Sony Service
listed on an Agreed Plan by (i) making available such Services in accordance
with the "Delivery Standard" in respect of such Sony Service as is set forth on
Exhibit B or an Agreed Plan (or as otherwise agreed by the parties) and (ii)
using commercially reasonable efforts to achieve the agreed-upon objectives.
Notwithstanding the foregoing, Sony shall not be deemed to have Delivered a
particular Sony Service, if Yupi has used commercially reasonable efforts to
take advantage of the specific services and, where applicable, has implemented
the necessary technology, licenses, support and infrastructure to exploit the
services, but intervening or superceding events outside of Yupi's control render
Yupi unable to exploit such services. In such instances, Sony and
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Yupi shall discuss in good faith an appropriate credit to Sony for level of
support and assistance which had been provided for the project and shall agree
on a comparable substitute Sony Services of a similar value which will be made
available. Whenever reference is made to an "artist" or "artists" in Exhibit B,
Sony and Yupi shall mutually agree on the selection of the artist.
(c) CROSS-DIVISIONAL REVIEW The following representatives of Sony (or
representatives of comparable seniority, relevant experience and effectiveness
within each one of their divisions), and the following representatives of Yupi
(or representatives of comparable seniority, relevant experience and
effectiveness within each one of their divisions), shall discuss, at such
regular times throughout the Commitment Period as such representatives can
reasonably agree (with a goal of meeting on a quarterly basis), by conference
call or meeting, the status of the delivery of the Sony Services and the overall
relationship of the parties:
Fred Ehrlich, Sony Music
Yair Landau, Sony Pictures
Elizabeth Coppinger, Sony Corporation of America
Chief Executive Officer of Yupi
Chief Financial Office of Yupi
3. SONY TERMINATION OPTION Notwithstanding anything to the contrary in
this Letter Agreement or in any of the Agreements, Sony shall have the option (a
"Sony Termination Option"), exercisable by notice to Yupi (the "Sony Termination
Option Notice"), to terminate the Commitment Period and all of Sony's
obligations under this Letter Agreement upon payment to Yupi of the Penalty
Amount.
As used herein, "Penalty Amount" means
(i) the amount by which the Commitment Amount exceeds the
aggregate Agreed Value of Sony Services Delivered by Sony hereunder
prior to the date of Sony' Termination Option Notice (the "Balance
Amount") (as used for purposes of the calculation of the "Penalty
Amount," in addition to credit accorded to Sony through and including
all of the Determinations which have been made prior to the date of the
Sony Termination Option Notice, the parties shall make a Determination
for a period up to the Sony Termination Option Notice and Sony shall be
accordingly credited for all other Sony Services which it has Delivered
prior to such date); and
(ii) fifty percent (50%) of the Balance Amount.
4. SONY CONVERSION OPTION Notwithstanding anything to the contrary in this
Letter Agreement or in any of the Agreements, in the event of any Option Event
(defined below), Sony shall have the option, exercisable by notice to Yupi at
any time after the occurrence of the Option Event concerned (the "Conversion
Option Notice"), to convert the remainder of its obligations under this Letter
Agreement to the Modified Agreement defined below. As used herein, "Option
Event" means any one of the following:
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(i) If during the Commitment Period any of the Yupi Properties
incorporates, or the Yupi Properties in general incorporate, on a
repeated and consistent basis, content developed by Yupi or its
third-party content providers that contains a significant portion of
pornographic, obscene or other illegal content, and Yupi fails to
remove such content from any such Yupi Properties within thirty (30)
days after its receipt of Sony's notice requesting that it do so; or
(ii) If during the Commitment Period any Yupi Property (or any
service or entity operated by any Yupi Property) materially and
systematically consists primarily of materials owned or developed by
(and therefore affords preferential treatment vis-a-vis similar
material owned by Sony) a direct competitor of Sony in any of the music
publishing, recording, record (or music video) production and
distribution, film production and distribution, or television
production and distribution businesses, and Yupi fails to correct such
situation within thirty (30) days after its receipt of Sony's notice
requesting that it do so; or
(iii) If at any time during the Commitment Period any Yupi
Property possesses, or the Yupi Properties in general possess, a
consistent material ill reputation within the target audience to the
extent that the association of Sony with Yupi or with such Yupi
Property or Properties could reasonably cause a material adverse effect
on the reputation of, or otherwise cause material embarrassment to or
materially diminish the value of, the operating divisions or properties
of Sony, and Yupi fails to correct such situation within thirty (30)
days after the receipt of Sony's notice requesting that it do so; or
(iv) If at any time during the Commitment Period the "Yupi
Value" (as defined below) is lower than Three Hundred Million US
Dollars (US $300,000,000). As used in this section (iv), "Yupi Value"
means, until such time as Yupi is subject of an initial public
offering, the fair market value of all of the outstanding equity of
Yupi, as reasonably determined by one of the "blue chip" top tier
investment banking firm (which Yupi shall have the right to contest
with a report by another "blue chip" top tier investment banking firm),
and, after an initial public offering, the then-current market
capitalization of Yupi.
As used herein, the "Modified Agreement" shall mean this Letter
Agreement, modified as follows:
(i) In the event of an Option Event under section 4 (iv), in
respect of the balance of Sony Services up to the Commitment Amount,
which Sony has not Delivered as of the date of the Conversion Option
Notice (the "Remaining Obligation"), Sony shall only be obligated to
Deliver Non-Branded Services, and
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(ii) In the event of an Option Event under sections 4(i) (ii),
or (iii) hereof, in respect of the Remaining Obligation, Sony shall be
obligated to Deliver Non-Branded Services in respect of those Yupi
Properties which are the basis for the Option Event (as well as any
other Yupi Properties which a reasonable consumer would understand to
be significantly associated with the Yupi Property that is the basis
for the Option Event), and shall continue to Deliver all Sony Services
in respect of all other Yupi Properties. As used herein, "Non-Branded
Services" means those Sony Services which are not identified primarily
by and whose benefit is not primarily derived from association with the
Sony trade name (or the trade names of any material Sony properties).
4. YUPI REMEDY In the event that Sony fails to Deliver, within any six
(6)-month period during the Commitment Period ("6-Month Period"), a substantial
portion of the Sony Services specifically scheduled to be Delivered, pursuant to
one or more Agreed Plans, during such 6-Month Period, such Sony Services not so
Delivered (or such other Sony Services as the parties mutually determined in
good faith to be of an equivalent Agreed Value) shall be required to be
Delivered during the next succeeding six (6)-month period ("Subsequent 6-Month
Period") and shall be deemed incorporated in the Agreed Plan or Agreed Plans
covering such Subsequent 6-Month Period. If such Sony Services are still not
substantially Delivered by Sony within such Subsequent 6-Month Period, Yupi
shall deliver to Sony a written notice of such failure to Deliver (a
"Non-Delivery Notice"). Sony shall have three (3) months after its receipt of
such Non-Delivery Notice (the "Cure Period") to cure such Non-Delivery, which
cure shall be accomplished by Delivery of the Sony Services of an Agreed Value
equivalent to the Sony Services not Delivered (such equivalent Sony Services as
reasonably agreeable to Yupi). In the event Sony fails to so cure within the
Cure Period as provided herein, Yupi shall have as its sole remedy the option,
exercisable by notice to Sony at any time after the Cure Period, to terminate
the Commitment Period and all of Yupi's and Sony's obligations under the Letter
Agreement, and to demand that Sony pay to Yupi, promptly upon final adjudication
of a breach by Sony of this Letter Agreement, the Penalty Amount.
5. MISCELLANEOUS.
(a) All notices under this Letter Agreement shall be in writing and
shall be given by courier or other personal delivery or by registered or
certified mail at the appropriate address first listed above or at a substitute
address designated by notice by the party concerned. Each notice to Sony shall
be addressed for the attention of the Senior Vice President, Business Affairs &
Administration, of Sony Music, A Group of Sony Music Entertainment Inc. ("Sony
Music"), 550 Madison Avenue, New York, New York 10022, and a copy of each notice
to Sony shall be sent simultaneously to the Sony Music Entertainment Inc. Law
Department for the attention of its Senior Vice President and General Counsel.
Each notice to YUPI shall be addressed for the attention of its President at 605
Lincoln Road, Suite 401, Miami Beach, Florida 33139 and a copy of each notice to
YUPI shall be sent simultaneously to Testa, Hurwitz & Thibeault, LLP, 125 High
Street, Boston, MA 02110, Attention, Stephen A. Hurwitz, Esq. Notices shall
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be deemed given when mailed or, if personally delivered, when so delivered,
except that a notice of change of address shall be effective only from the date
of its receipt.
(b) This Letter Agreement contains the entire understanding of the
parties hereto relating to its subject matter. No change or termination of this
Letter Agreement shall be binding upon either party hereto unless it is made by
an instrument signed by an authorized officer of such party.
(c) Each of Yupi and Sony (each, an "Assigning Party") may assign its
rights under this Letter Agreement in whole or in part to any subsidiary,
affiliated or controlling corporation to any person owning or acquiring a
substantial portion of the stock or assets of such Assigning Party, or to any
partnership or other venture in which such Assigning Party participates, and
such rights may be similarly assigned by any assignee. No such assignment shall
relieve such Assigning Party of any of its obligations hereunder. Any purported
assignment by YUPI or Sony in violation of this subparagraph shall be void.
(d) Neither party shall be entitled to recover damages by reason of any
breach by the other party of its material obligations, unless the breaching
party has failed to remedy the breach within a reasonable period of time
following receipt of notice thereof, or as otherwise provided herein.
(e) THIS LETTER AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF NEW
YORK, AND THE VALIDITY, INTERPRETATION AND LEGAL EFFECT OF THIS LETTER AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
ENTERED INTO AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO ANY CONFLICT OF LAW PRINCIPLES UNDER NEW YORK LAW).
(f) In entering into this Letter Agreement, and in providing services
pursuant hereto, each of Yupi and Sony have and shall have the status of an
independent contractor. Nothing herein contained shall contemplate or constitute
Yupi as Sony's agent or employee, or Sony as Yupi's agent or employee, and
nothing herein shall constitute a partnership, joint venture or fiduciary
relationship between Yupi and Sony.
Very truly yours,
SONY CORPORATION OF AMERICA
By: /S/ KENNETH L. NEES
--------------------------
An Authorized Signatory
AGREED:
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YUPI INTERNET, INC.
By: /S/ OSCAR COEN
---------------------------
An Authorized Signatory
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EXHIBIT A
to the Letter Agreement, dated October 27, 1999, between Yupi Internet, Inc. and
Sony Corporation of America
- --------------------------------------------------------------------------------
YUPI PROPERTIES
www.Yupi.com
www.ciudadfutura.com
www.charlas.com
www.pregonero.com
www.el-agora.com
www.lettera.net
www.metabusca.com
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EXHIBIT B
to the Letter Agreement, dated October 27, 1999, between Yupi Internet, Inc. and
Sony Corporation of America
- --------------------------------------------------------------------------------
SONY SERVICES
1. MULTIMEDIA CD'S: THE INCLUSION ON SONY MUSIC ENHANCED CDS OF (I) LINKS
TO WWW.YUPI.COM OR ANOTHER YUPI PROPERTY, OR (II) BUNDLED YUPI-OWNED SOFTWARE
(ON AN ESTIMATED [CONFIDENTIAL TREATMENT REQUESTED]/*/ ENHANCED CD UNITS).
o Delivery Standard: (i) Facilitate the contact between the Yupi
Representative and the appropriate Sony Music person responsible for
inclusion of such multimedia material; explain the key personnel, the
timing deadlines for inclusion of multimedia material; and (ii)
Discuss with Yupi which Yupi page will serve as a jump page and what
will be highlighted, as well as pointers for consumers to access the
enhanced portion on the CD
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ per manufactured
CD. Note that, on the assumption that there will be [CONFIDENTIAL
TREATMENT REQUESTED]/*/ enhanced CDs with this material, the estimated
overall valuation is [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
2. UVILLE (SONY MUSIC'S MUSIC PORTAL SITE) (A) IN "RELATED LINK" FOR LATIN
ARTISTS, UVILLE CAN INCLUDE A LINK TO YUPI SITE; (B)YUPI TO SUPPLY NEWS AND YUPI
TO SPONSOR AREA; (C) SONY CAN TRANSLATE CERTAIN MUTUALLY-AGREED CONTENT TO
SPANISH AND HAVE SOME BILINGUAL CONTENT AS AGREED; (D) YUPI WILL BE PART OF
INITIAL PRESS RELEASE - HIGHLIGHTED; AND (E) YUPI AND SONY WILL WORK TOGETHER AS
UVILLE EVOLVES TO INCLUDE YUPI IN OTHER APPROPRIATE OFFERINGS
o Delivery Standard: Facilitate contact between the Yupi Representative
and the appropriate Uville person responsible for each aspect of
integration (technical linking, editorial, translation of content,
insertions). Explain the key personnel, the timing deadlines for
inclusion of Yupi content (including press release).
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
3. INFOBEAT
(A) INCLUSION ON INFOBEAT GENERALLY:
(I) YUPI COULD HAVE PERMANENT BRICK AND/OR BANNER ADS ON
E-MAILS TO AN APPROPRIATE TARGET SECTION (MUTUALLY AGREED) OF
INFOBEAT SUBSCRIBERS
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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o Delivery Standard: Work with Yupi to assess [CONFIDENTIAL
TREATMENT REQUESTED]/*/, and to facilitate contact between
the Yupi Representative and the appropriate InfoBeat person
responsible for ad insertions. Assist in ad preparation.
(II) [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: [CONFIDENTIAL TREATMENT REQUESTED]/*/
(II) INVOLVEMENT IN ENTERTAINMENT PRODUCT
I) LATIN MUSIC AREA TO BE "SPONSORED BY YUPI"
o Delivery Standard: Facilitate contact between the Yupi
Representative and the appropriate InfoBeat person
responsible for sponsorship banners in this area.
o II) LINKS ACROSS RELEVANT PAGES
o Delivery Standard: Facilitate contact between the Yupi
Representative and the appropriate InfoBeat person
responsible for links; assist in link preparation.
III) [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o (V) INVOLVEMENT IN NEWS PRODUCT: LATIN NEWS AREA TO INCLUDE
CONTENT PROVIDED BY YUPI AND HAVE LINKS TO YUPI SITE
o Delivery Standard: Yupi to provide InfoBeat with Latin music
news content [CONFIDENTIAL TREATMENT REQUESTED]/*/; InfoBeat
will include such content with links to appropriate target
e-mail.
o Delivery Standard: See each separate element above,
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ (see breakdown on
Exhibit C)
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
(II) [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: [CONFIDENTIAL TREATMENT REQUESTED]/*/
Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
4. [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
5. SONY MUSIC AUDIO RECORDINGS
(I) LICENSE FOR 30-SECOND AUDIO SAMPLES WITH THUMBNAIL OF ALBUM ART FOR MUSIC
PREVIEWS IN CONNECTION WITH RECORD-PURCHASE E-COMMERCE OFFERS; LINKS TO
SONY-AFFILIATED VIRTUAL RECORD RETAILER. PROMOTIONAL ONLY
o Delivery Standard: Facilitate contact with Sony Music licensing
personnel; audio clips and album art files made available in correct
format.
o Agreed value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
(II) [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: Facilitate contact with Sony Music licensing
personnel; [CONFIDENTIAL TREATMENT REQUESTED]/*/ made available in
correct format.
o Agreed value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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(III) [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
6. SONY MUSIC VIDEO RECORDINGS
(I) LICENSE FOR 30-SECOND VIDEO SAMPLES WITH THUMBNAIL OF ALBUM ART
FOR MUSIC PREVIEWS IN CONNECTION WITH RECORD-PURCHASE E-COMMERCE
OFFERS; LINKS TO SONY-AFFILIATED VIRTUAL RECORD RETAILER.
o Delivery Standard: Facilitate contact with Sony Music licensing
personnel; video clips and album art files made available in correct
format.
o Agreed value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
(II) LICENSE FOR APPROXIMATELY [CONFIDENTIAL TREATMENT REQUESTED]/*/
FULL-LENGTH VIDEO TRACKS FOR NON-PERSONALIZED, NON-INTERACTIVE,
STREAMING-VIDEO INTERNET WEBCASTS OF U.S. ARTISTS. U.S. DIGITAL
MILLENNIUM COPYRIGHT ACT TO BE USED AS FRAMEWORK FOR PROGRAMMING
PARAMETERS.
o Delivery Standard: Facilitate contact with Sony Music licensing
personnel; audio tracks made available in correct format.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ (Actual value
dependent upon usage and attributable revenue streams).
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
7. [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: (i) [CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
8. SONY MUSIC SPECIAL PRODUCT COMPILATIONS: [CONFIDENTIAL TREATMENT
REQUESTED]/*/ LICENSING SONY MUSIC MASTERS (BACK-CATALOG TRACKS) FOR USE IN
YUPI-BRANDED PROMOTIONAL SAMPLERS ([CONFIDENTIAL TREATMENT REQUESTED]/*/ TRACKS
PER RECORD). PROMOTION ONLY ON YUPI PROPERTIES
o Delivery Standard: Facilitate contact between the Yupi Representative
and the appropriate Sony Music Special Products person responsible;
explain the key personnel and timing deadlines; (ii) where license
terms otherwise agreed, [CONFIDENTIAL TREATMENT REQUESTED]/*/
(estimated [CONFIDENTIAL TREATMENT REQUESTED]/*/)
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ (Actual value
dependent upon masters being licensed, number of units distributed and
scope of distribution).
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
9. MASTER-USE LICENSES (YUPI ADS): [CONFIDENTIAL TREATMENT REQUESTED]/*/
FOR USE IN LICENSING SONY MUSIC MASTERS CONNECTION WITH YUPI ADVERTISING SPOTS
IN VARIOUS MEDIA -- I.E., INTERNET, TELEVISION AND RADIO. [CONFIDENTIAL
TREATMENT REQUESTED]/*/
o Delivery Standard: Facilitate contact between the Yupi Representative
and the appropriate Sony Music Special Products person responsible;
explain the key personnel and timing deadlines Agreed Value:
[CONFIDENTIAL TREATMENT REQUESTED]/*/ EACH 6-MONTH PERIOD (Actual
value dependent upon masters being licensed, number of units
distributed and scope of distribution).
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
10. ADDITIONAL SONY MUSIC MARKETING COMMITMENTS: SONY MUSIC TO MAKE
AVAILABLE TO YUPI A "BUCKET" OF VARIOUS MARKETING OPPORTUNITIES IN ADDITION TO
THOSE SPECIFICALLY SET FORTH ABOVE, SUCH AS BY WAY OF ILLUSTRATION, "BATTLE OF
THE BANDS" COMPETITIONS, TRIPS TO RECORDING STUDIO, DEMOS, SNEAK PREVIEWS. THE
FOLLOWING DETAILS COVER ONLY THOSE EXAMPLES DISCUSSED TO DATE. ACTUAL ITEMS WILL
VARY.
(A) BATTLE OF THE BANDS:
o Delivery Standard: Facilitate contact between the Yupi Representative
and the appropriate Sony Music person responsible; explain the key
personnel
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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and timing deadlines; (ii) Provide content and schedule templates,
assist in development of contest rules; (iii) provide agreed-upon
prize for winner (which may be tour of recording studio, meeting with
record company personnel (A&R?), MAYBE a demo recording contract), as
determined by Sony. Yupi to put promo on its sites. Sony A&R team to
review and choose winner.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ per contest
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
(B) SONY TO PROVIDE [CONFIDENTIAL TREATMENT REQUESTED]/*/ E-ATTACHMENTS
WHICH COMBINE MUSIC AND GRAPHICS [CONFIDENTIAL TREATMENT REQUESTED]/*/ EACH
o Delivery Standard: Work with Yupi to design and create e-attachments
Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ per e-attachment
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
(C) SONY MUSIC WILL PROVIDE FUN/FAST GAMES FOR YUPI CONSUMERS
o Delivery Standard: Work with Yupi to design and create games
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ per game,
depending on content
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
(D) FOR EGREETINGS: WE WILL PROVIDE SELECT MUSIC (10 SECONDS)
o Delivery Standard: Work with Yupi to design and create e-greetings and
mutually select music (subject to rights and availability)
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ per music sample
in e-greeting
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
11. BANNER ADVERTISING: INVENTORY OF BANNER ADS TO BE MADE AVAILABLE
ACROSS SONY-OWNED INTERNET SITES, TO BE REASONABLY DRAWN UPON BY YUPI AT SUCH
TIMES AND IN SUCH QUANTITIES AS AGREED UPON IN GOOD FAITH BY SONY AND YUPI.
NON-SPONSORSHIP ONLY. ALL BANNERS ON SONY RELATED WEBSITES, ARTIST WEBSITES
o Delivery Standard: FACILITATE CONTACT BETWEEN Yupi and appropriate
Sony Music personnel for ad banners; explain timing deadlines and key
personnel. Size of ad buys to be mutually agreed.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/. Estimated value
to Yupi: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Page 16
<PAGE>
12. SONYMUSIC.COM AND OTHER SONY MUSIC LATIN-RELATED WEBSITES:
(A) LATIN NEWS AND E-MAIL - "SPONSORED BY YUPI"
o Delivery Standard: Facilitate contacts between Yupi and appropriate
Sony Music personnel for news and e-mail inclusion; placement of
agreed links (from Sony to Yupi) as provided by Yupi. ad banners;
explain timing deadlines and key personnel. Size of ad buys to be
mutually agreed.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ IN FIRST 6 MONTHS;
[CONFIDENTIAL TREATMENT REQUESTED]/*/ IN EACH SUBSEQUENT 6-MONTH
PERIOD
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
(B) [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: Work with Yupi to develop search engine; facilitate
contacts
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ IN FIRST 6 MONTHS;
[CONFIDENTIAL TREATMENT REQUESTED]/*/ IN EACH
SUBSEQUENT 6-MONTH PERIOD
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
13. SONY BRANDING; EXPERTISE, KNOWLEDGE AND CONTACTS MUSIC, FILM,
TELEVISION, CONSUMER ELECTRONICS, PERSONAL COMPUTER, INTERNET AND E-MAIL
DELIVERY SERVICES INDUSTRIES; INDUSTRY GOODWILL AND BRANDING ASSOCIATED WITH
YUPI'S STRATEGIC ALLIANCE WITH SONY AND ITS AFFILIATED COMPANIES; THE
FACILITATION OF INTRODUCTIONS, CONTACTS AND RELATIONSHIPS WITHIN AND AMONG THE
VARIOUS SONY OPERATING COMPANIES AND THEIR RESPECTIVE BUSINESS UNITS, LOOK INTO
SOE HELPING WITH AD SALES IN THE US, ADVICE ON GROWTH PLANS, BUSINESS
DEVELOPMENT, PARTNERS ETC.
o Delivery Standard: DEEMED DELIVERED AT CLOSING
o Agreed Value [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
14. ON-AIR PROMOTIONAL TIME ON SONY TELEVISION PROPERTIES IN LATIN AMERICA
AND SPAIN
o Delivery Standard: Advise Yupi on available ad spots; facilitate
contact between Yupi and Sony Music personnel; Yupi delivers all
creative elements.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ (Actual value
dependent upon usage, day-parts and particular properties involved).
[CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
15. [CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
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<PAGE>
[CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
16. ADDITIONAL SONY PICTURES MARKETING COMMITMENTS SONY PICTURES TO MAKE
AVAILABLE TO YUPI A "BUCKET" OF VARIOUS MARKETING AND CONTENT PARTNERSHIP
OPPORTUNITIES IN ADDITION TO THOSE SPECIFICALLY SET FORTH ABOVE, SUCH AS BY WAY
OF ILLUSTRATION, GAME MODULES (E.G., "STEWART LITTLE"), SCREENSAVERS, (E.G.,
"MEN IN BLACK") A CO-BRANDED NEWSLETTER (E.G., "SHOWBIZ SCOOP") AND E-POSTCARDS.
[AGGREGATE VALUE TO YUPI: [CONFIDENTIAL TREATMENT REQUESTED]/*/]
o Delivery Standard: As agreed on a project-by-project basis.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
17. MEDIA BLITZ PLAN FOR YUPI (A) JOINT EFFORT ON MEDIA PLAN; AND
[CONFIDENTIAL TREATMENT REQUESTED]/*/
o Delivery Standard: Facilitate contact between the Yupi Representative
and the appropriate Young and Rubicam person on press release and
media plan. Consult with Yupi on media plan. [CONFIDENTIAL TREATMENT
REQUESTED]/*/. Ad buys to be completed by Yupi.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
18. COLLECTIBLES: SONY WILL MAKE AVAILABLE CHARITY COLLECTIBLES ON YUPI
SITE
o Delivery Standard: As requested and as they become available, Sony
will make collectible items available for inclusion on a Yupi site.
Sony will coordinate securing rights to collectibles.
o Agreed Value: based on value of collectible; estimated aggregate value
[CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Page 18
<PAGE>
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
19. PR SERVICE: AVAILABILITY OF SONY-HIRED PR CONSULTANT
o Delivery Standard: Facilitate contact between the Yupi Representative
and Sony's Pr consultant to seek to get Yupi's name in high level
business trades to draw attention to and enhance the yupi brands ion
the investment world. Arrange an initial meeting between this
consultant and Yupi management, and arrange such follow-up meetings as
agreed to be appropriate. Written progress reports.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ month
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
20. VIDEO: PRIVATE LABEL VIDEO CHANNEL ON YUPI SITE WITH SPANISH LANGUAGE
ARTISTS
o Delivery Standard: Work with Yupi to develop private label video
channel with Spanish language artists. To the extent Yupi provides
content, Sony will [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ for first six
months; [CONFIDENTIAL TREATMENT REQUESTED]/*/ for each subsequent
6-month period
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
21. E-MAZING:
A) WE WILL CONVERT OUR TIPS TO SPANISH, HIRE SPANISH EDITOR
B) WE WILL CREATE NEW JOINTLY AGREED UPON TIPS
C) PLACEMENT OF ADS TO PROMOTE YUPI ON EMAZING SITE
D) YUPI IS CO-BRANDED SPONSOR
E) YUPI SEARCH BOX INCLUDED AT SONY'S OPTION
F) CIUDAD FUTURA PROMOTIONS AND TARGETED TIPS
G) WILL BE PART OF PRESS RELEASE CONCERNING SONY MUSIC PURCHASE AS
WELL AS NEW TIPS
H) WE WILL FEATURE YUPI'S OWN EMAIL NEWSLETTER PROMINENTLY (TIPS,
START-O-MATIC). SHARE NAMES AND AD REVENUES (AFTER AD COSTS)
I) YUPI BRANDED STARTOMATIC PAGE
I) BEST SPANISH NEWS SITES AND RELEVANT CONTENT
II) EMAZING TO PROMOTE SPANISH VERSION
o Delivery Standard: As detailed above.
o Agreed Value: [CONFIDENTIAL TREATMENT REQUESTED]/*/ for (a) through
(h); for (i), [CONFIDENTIAL TREATMENT REQUESTED]/*/ for first six
months and [CONFIDENTIAL TREATMENT REQUESTED]/*/ for each subsequent
6-month period
o Agreed Sony-Included Costs: [CONFIDENTIAL TREATMENT REQUESTED]/*/
o Agreed Sony-Provided Intellectual Property: [CONFIDENTIAL TREATMENT
REQUESTED]/*/
- --------------------
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Page 19
<PAGE>
EXHIBIT C
to the Letter Agreement, dated October 27, 1999, between Yupi Internet, Inc.
and Sony Corporation of America
- --------------------------------------------------------------------------------
SIX MONTH PLAN (AS AGREED UPON BY RUDI AND ARIANE ON MONDAY JULY 19TH) WITH
INITIAL GUIDELINES ON VALUES FOR THE FOLLOWING 6 MONTHS
All the following action steps will be complemented by major PR
coverage
Yupi needs to execute and promote these initiatives
<TABLE>
<CAPTION>
ACTION STEPS AND DELIVERABLES VALUE TO BE DRAWNDOWN
- ----------------------------- ---------------------
<S> <C>
1) Major launch event and press announcement to be worked on immediately after $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
closing
a) [CONFIDENTIAL TREATMENT REQUESTED]/*/
2) Advertising: All Banners on Sony related websites, artist websites: [CONFIDENTIAL TREATMENT REQUESTED]/*/
a) [CONFIDENTIAL TREATMENT REQUESTED]/*/ CPM's
b) Size of ad buy to be determined
c) Non sponsorship
3) [CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
a) [CONFIDENTIAL TREATMENT REQUESTED]/*/ (if special occurrences, parties will
discuss extra value added)
[CONFIDENTIAL TREATMENT REQUESTED]/*/
4) Multimedia:
a) [CONFIDENTIAL TREATMENT REQUESTED]/*//unit for all
CD's manufactured with Yupi software $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
per unit
b) Discuss plan on highlighting to
people that software is on CD
5) Emazing: $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
for first 6 months,
$ [CONFIDENTIAL TREATMENT REQUESTED]/*/
next 6 mo.
a) We will convert our tips to Spanish, hire Spanish editor
b) We will create new jointly agreed upon tips
c) Emazing to promote across site
d) Yupi is cobranded sponsor
i) Use their search
</TABLE>
- --------------------
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Page 20
<PAGE>
<TABLE>
<S> <C>
ii) Ciudad Futura promotions and targeted tips
e) DELETED
f) Will be part of press release concerning Sony Music
purchase as well as new Tips
g) We will feature Yupi's own email newsletter prominently
h) Yupi branded Startomatic page $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
for the first 6 months,
$ [CONFIDENTIAL TREATMENT REQUESTED]/*/
next 6 mo.
i) best Spanish news sites and relevant content
ii) Emazing to promote Spanish version
6) uville.com: $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
for the first 6 months,
$ [CONFIDENTIAL TREATMENT REQUESTED]/*/
next 6 mo.
a) In "related link" for Latin artists - we will include a link to Yupi
b) Yupi to supply news and Yupi to sponsor area
c) We could convert some of our information to Spanish and have some
bilingual report
d) Will be part of initial press release - highlighted
7) InfoBeat:
a) Yupi could have permanent brick and/or banner ads $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
targeted across [CONFIDENTIAL TREATMENT REQUESTED]/*/ subs equivalent value (per 6 month period)
b) Could be some form of search on our site tbd
c) [CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
per name per usage
d) Involvement in Entertainment Product $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
per 6 month period
i) Latin music area to be sponsored by Yupi
ii) Links across relevant pages
iii) [CONFIDENTIAL TREATMENT REQUESTED]/*/ in Latin
area, to have Yupi presence
e) Involvement in News Product $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
i) Latin news area to include content provided by Yupi per 6 month period
and have links to Yupi site
12. SONYMUSIC.COM AND OTHER SONY MUSIC LATIN-RELATED WEBSITES:
a) Latin News and e-mail - sponsored by Yupi $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
for 6 months
$ [CONFIDENTIAL TREATMENT REQUESTED]/*/
for next 6 months
b) [CONFIDENTIAL TREATMENT REQUESTED]/*/
9) [CONFIDENTIAL TREATMENT REQUESTED]/*/:
a) License 30 second audio $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
per 6 month period
b) License 30 second video $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
per 6 month period
c) Allow Yupi to use [CONFIDENTIAL TREATMENT REQUESTED]/*/
videos - non- personalized - $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
per 6 month period
they provide all bandwidth and are responsible
for publishing
d) Allow use of full songs in non personalization form $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
per 6 month period
</TABLE>
- --------------------
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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<TABLE>
<S> <C>
e) [CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
depending on [CONFIDENTIAL TREATMENT
(only available on sonymusic.com and Yupi) REQUESTED]/*/
- with press release
f) [CONFIDENTIAL TREATMENT REQUESTED]/*/: In the next 6 months,
we will commit to: $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
base for 6 months and an additional
$ [CONFIDENTIAL TREATMENT REQUESTED]/*/
per high profile event (e.g.- IPO,
Xmas) depending on [CONFIDENTIAL TREATMENT
REQUESTED]/*/ availability
[CONFIDENTIAL TREATMENT REQUESTED]/*/
g) Battle of the Bands: We will work with Yupi to do a battle of the $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
bands per battle
g) SMSP compilations: $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ and
the [CONFIDENTIAL TREATMENT REQUESTED]/*/
rates after 6 months
We will make available up to [CONFIDENTIAL TREATMENT
REQUESTED]/*/ units at [CONFIDENTIAL TREATMENT REQUESTED]/*/
rates
h) Master Use: $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ per
We will make available at [CONFIDENTIAL TREATMENT 6 month period
REQUESTED]/*/ rates
i) DELETED
j) We will provide [CONFIDENTIAL TREATMENT REQUESTED]/*/ e-attachments
which combine music and graphics for Yupi fans (can also be
used on site $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ each
k) Sony Music will provide fun/fast games for Yupi consumers $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ a
game
l) for egreetings: we will provide select music (10 seconds) $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ per
music
10) SPE:
a) Make available and used [CONFIDENTIAL TREATMENT REQUESTED]/*/ of
advertising at [CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
second on air mention (next 6 mo. to depend on
inventory and Yupi preference)
Work with Evan to develop and action plan and determine spot inventory
for next 6 months
b) [CONFIDENTIAL TREATMENT REQUESTED]/*/, screenings, chats, contests, $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ in
giveaways, merch first 6 months
i) Showbiz Scoop to be translated and include Latin news
11) Collectibles:
a) Will make available charity collectibles on Yupi site $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ in
[CONFIDENTIAL TREATMENT REQUESTED]/*/ first 6 months (next 6 mo. to at least be
matched)
12) Video: Will make available private label video channel on Yupi site with $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ and
then $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
for next 6 months
</TABLE>
- --------------------
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Page 22
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<TABLE>
<S> <C>
[CONFIDENTIAL TREATMENT REQUESTED]/*/
13) [CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
and then
$ [CONFIDENTIAL TREATMENT REQUESTED]/*/ for
next 6 months
[CONFIDENTIAL TREATMENT REQUESTED]/*/
14) PR:
concentrate on Yupi $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ for
6 months (next 6 months at [CONFIDENTIAL
TREATMENT REQUESTED]/*/ rate, depending on
need)
15) Media blitz plan for Yupi $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ for
a) joint effort on media plan 6 months (next 6 months depending on need,
will incl. [CONFIDENTIAL TREATMENT
REQUESTED]/*/ rates)
b) [CONFIDENTIAL TREATMENT REQUESTED]/*/
16) Sony Branding $ [CONFIDENTIAL TREATMENT REQUESTED]/*/ in
first 6 months (available thereafter as part
of relationship)
For example;
a) access and facilitation to Sony and industry contacts
b) Expertise in email delivery and strategy
c) Look into SOE helping with ad sales in US
d) Advice on growth plans, acquisitions, biz dev, partners etc
</TABLE>
- --------------------
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Page 23
EXHIBIT 10.07
CONFIDENTIAL
================================================================================
VALUE-ADDED LINK AGREEMENT
by and between
ALTAVISTA EQUIPMENT CORPORATION
and
YUPI INTERNET INC.
================================================================================
- --------------------------------------------------------------------------------
Date: July 20, 1999
- --------------------------------------------------------------------------------
CONFIDENTIAL
<PAGE>
- 2 -
ALTAVISTA VALUE ADDED LINK AGREEMENT
THIS ALTAVISTA VALUE ADDED LINK AGREEMENT (this "AGREEMENT") is entered into as
of the (the "JULY 20, 1999") by and between YUPI INTERNET, INC. "Participant')
and the ALTAVISTA COMPANY ("AltaVista").
RECITALS
Yupi operates a service on the World Wide Web that provides information to its
users via the Yupi web Properties (as hereinafter defined). AltaVista has
developed and operates the AltaVista/Trademark/ full-text World Wide Web search
engine and the AltaVista/Trademark/ index, which can currently be accessed
through http:Hwww.altavista.com ("ALTAVISTA").
Yupi desires to incorporate and feature AltaVista as an available search engine
for its property or properties accessible on the World Wide Web. Yupi and
AltaVista desire to establish a Value -Added Link between AltaVista and such
properties that will enable a Yupi visitor to conduct World Wide Web searches
through AltaVista while remaining on the Yupi Properties.
Yupi and AltaVista agree that the following terms and conditions shall govern
the establishment, structure and operation of such a value-added Link.
1. DEFINITIONS AND TERMS
DEFINITIONS. For purposes of this Agreement, in addition to the terms defined
elsewhere in this Agreement, the following terms shall have the meanings
ascribed to them below:
1.1 "ALTAVISTA INDEX" means the World Wide Web full-text index compiled by
AltaVista using the AltaVista Search Engine, as the same is updated
from time to time by the AltaVista Search Engine and maintained on
AltaVista servers.
1.2 "YUPI PROPERTIES" means any Yupi property or properties specified in
EXHIBIT "A", including any successor properties, or additional
affiliate sites, and strategic alliance partners' sites (as long as the
partner's sites are hosted in servers owned, leased or operated by
Yupi) that are accessible over the World Wide Web by a user and that
are incorporated into the Yupi business from time to time.
1.3 "INTELLECTUAL PROPERTY RIGHTS" means trade secrets, patents,
copyrights, trademarks, trade dress, know-how and similar rights of any
type under the laws of any governmental authority including, without
limitation, all applications and registrations relating to any of the
foregoing.
1.4 "INTERFACE SPECIFICATIONS" means the detailed specifications set forth
in EXHIBIT "B" that when implemented will enable the value-added Link
(as defined below).
<PAGE>
- 3 -
1.5 "RESULTS PAGE" means each page on any of the Yupi Properties that
contains search responses, if any, to an AltaVista search query.
1.6 "SEARCH ENGINE" means a program that crawls and indexes the text of the
World Wide Web and/or Usenet newsgroups and which index can be queried
using Boolean logic or similar query methods.
1.7 "USER" means a person who accesses any of the Yupi Proper-ties.
1.8 "VALUE-ADDED LINK" OR "VAL" shall operate as described in Section 2.
1.9 "WORLD WIDE WEB" OR "WWW" means the Internet-based distributed
information service that utilizes the hypertext transfer protocol
(http) or any successor protocol.
2. VALUE-ADDED LINK.
OPERATION OF VAL. The VAL will generally operate as follows:
2.1 The user interface of each Yupi Property that offers search
functionality to Users will be designed so that it identifies AltaVista
as an available search engine (as set forth in Section 3, below) and
gives the User the option of using AltaVista to conduct a search;
2.2 When Yupi initiates a query to AltaVista, using the VAL interface, the
query will be transmitted to the AltaVista Index, where it will be
processed, and the results (if any) will be sent using the VAL
interface to the Yupi Property;
2.3 Yupi will format the results from the AltaVista search in a Results
Page and will be able to incorporate advertising and other messaging
into this Results Page. Each Results Page will contain an attribution
to AltaVista; and an html link to the AltaVista site. This attribution
will be placed above the fold.
2.4 The search process will not remove the User from the Yupi Properties on
which the User initiated the search.
3. RESPONSIBILITIES AND RIGHTS OF THE PARTIES.
3.1 INTERFACE SPECIFICATIONS. Promptly following the Effective Date,
AltaVista shall provide to Yupi the Interface Specifications to allow
Yupi to establish the VAL with the AltaVista Index for full text
search.
3.2 ENGINEERING CHANGES. AltaVista hereby grants Yupi a non-exclusive
license to utilize the Interface Specifications solely for the purpose
of implementing engineering changes in Yupis source code or object code
necessary to install and support the VAL.
<PAGE>
- 4 -
3.3 ALTAVISTA AS AVAILABLE SEARCH ENGINE. Yupi is permitted under this
Agreement to establish AltaVista as an available search engine for Yupi
Properties. In this regard, Yupi shall, at a minimum, include a
reference, to be provided to Yupi by AltaVista, in accordance with
EXHIBIT "C," to the AltaVista search functionality, E.G., "Powered by
AltaVista," prominently on each page that references AltaVista or makes
use of its WWW search functionality of each of the Yupi Properties,
which prominence and size shall be commensurate with the prominence
provided to the search engine service within the context of a web page.
If Yupi does not implement the VAL and does not establish AltaVista as
an available search engine for its Properties, Yupi shall have no right
to use the AltaVista name or trademarks pursuant to the license granted
in Section 6 herein.
3.4 INTERFACE DESIGN AND RESULTS PAGES. Yupi shall use the mutually agreed
upon design set forth in EXHIBIT "C" for each user interface from which
the VAL can be accessed by Yupi users and the related search query
page(s). Upon written notice to Yupi, AltaVista may from time to time
modify such attribution or request that it be removed and Yupi shall
promptly implement all such modifications, or remove such attributions,
as the case may be. Yupi shall ensure that the user interface provides
Users with access to the AltaVista web pages which contain all legal
notices and disclaimers provided by AltaVista. Yupi shall have the
right to translate any information of the interface, search results,
and other result or legal notice information relating to this Agreement
to conform it to Yupi's user base.
3.5 SUPPORT. Yupi shall be solely responsible for providing support to Yupi
`s affiliates and users. AltaVista shall provide all support necessary
to install and maintain the VAL, to assure reasonably uninterrupted
availability of the AltaVista search engine and to provide timely
results to Yupi Users using AltaVista to conduct a search.
4. PAYMENT.
4.1 PAYMENT SCHEDULE. In consideration for the VAL to the AltaVista Index,
each calendar month during the term of this Agreement Yupi shall owe
AltaVista the applicable CPM rate for every [CONFIDENTIAL TREATMENT
REQUESTED]/*/ viewed by Yupi Users in response to AltaVista queries
from the Yupi Properties. The parties reserve the right to negotiate a
new CPM rate and apply a new rate for each renewal term.
4.2 VAL PRICING
Yupi.com will pay AltaVista an amount equal to $ [CONFIDENTIAL TREATMENT
REQUESTED]/*/ per quarter or an amount based on the following CPM chart -
whichever amount is the greater:
Monthly number of page views Applicable CPM*
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
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[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
4.3 In addition there is an AltaVista Support fee of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ per AltaVista quarter.
4.4 PAYMENTS AND REPORTS. Yupi shall pay AltaVista the applicable amount
for the monthly traffic multiplied by the corresponding CPM rate above
for a given month based on the number of Results Pages viewed by Yupi
Users for that month. For each month and accompanying each payment,
Yupi shall prepare and provide to AltaVista a report setting forth in
reasonable detail the number of Results Pages viewed for the month with
such supporting detail as AltaVista may reasonably request to confirm
the accuracy of such number.
4.5 MANNER OF PAYMENT. All payments due to AltaVista by Yupi hereunder
shall be payable in U.S. Dollars by check or wire transfer to such U.S.
bank account as AltaVista shall notify Yupi in writing no later than
five (5) days before the date on which such payment is due.
4.6 LATE FEE. If after receipt of notice and ten (10) days opportunity to
cure, Yupi fails to pay amounts due and payable, Yupi shall pay
AltaVista a late payment charge of one and one-half percent (1.5%) per
month, but not in excess of the lawful maximum, on any past due
balance.
5. PROPRIETARY RIGHTS.
5.1 ALTAVISTA. As between AltaVista and Yupi, AltaVista shall own all
right, title and interest in and to AltaVista, including but not
limited to the Interface Specifications, and the Intellectual Property
Rights embodied therein. Except as expressly granted in this Agreement,
nothing herein grants or shall be construed as granting Yupi any
licenses or other rights, whether express or implied or otherwise, in,
to or under AltaVista, including but not limited to the Interface
Specifications, or any Intellectual Property Rights embodied therein.
5.2 YUPI. Subject to AltaVista's underlying ownership interests set forth
in Section 5. 1, as between Yupi and AltaVista, Yupi shall own all
right, title and interest in and to the Yupi Properties.
6. TRADEMARKS.
6.1 ALTAVISTA MARKS. AltaVista hereby grants to Yupi a non-exclusive and
limited license to use the AltaVista tradenames, logos and other
AltaVista trademarks and service marks as set forth on EXHIBIT "F-I"
hereto (the "ALTA VISTA MARKS") solely in connection with Yupi's
advertising, marketing, promotion, display and distribution of the VAL.
It is understood that the use of the AltaVista Marks in the Yupi
promotional materials is subject to approval, which shall not be
unreasonably withheld, and any promotional
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- 6 -
materials which are delivered to AltaVista with no response within 10
days of receipt shall be deemed approved. Any materials previously
approved by AltaVista or any portions thereof may be continued to be
used by Yupi without substantially altering the format, unless Yupi
receives written notice to the contrary. Yupi's use shall be in
accordance with AltaVista's policies regarding advertising and
trademark usage as established from time to time by AltaVista. Yupi
shall have no right to use the AltaVista Marks for any purpose without
AltaVista's prior written consent, other than in connection with its
advertising, marketing, promotion, display and distribution of the VAL.
Yupi agrees to cooperate with AltaVista in facilitating AltaVista's
monitoring and control of the nature and quality of products and
services bearing the AltaVista Marks and to supply AltaVista with
specimens of Yupi's use of the AltaVista Marks upon request. In the
event that AltaVista determines that Yupi's use of the AltaVista Marks,
or the service in connection which such Marks are used, is inconsistent
with AltaVista's quality standards, then upon AltaVista's written
request, Yupi shall within a reasonable period thereafter conform such
use or service to AltaVista's standards. If Yupi fails to conform such
use or service, AltaVista shall have the right to suspend such use of
the AltaVista Marks.
6.2 YUPI MARKS. Yupi hereby grants to AltaVista a non-exclusive license to
use the Yupi tradenames, logos and other Yupi trademarks and service
marks as set forth on Exhibit "F-2" hereto (the "Participant" Marks) in
connection with AltaVista's advertising, marketing, promotion and
distribution of AltaVista in general, including but not limited to the
VAL. AltaVista use shall be in accordance with Participants policies
regarding advertising and trademark usage as established from time to
time by Yupi. AltaVista agrees to cooperate with Yupi in facilitating
Yupi's monitoring and control of the nature and quality of products and
services bearing the Yupi Marks, and to supply Yupi with specimens of
AltaVista's use of the Yupi Marks upon request. In the event that Yupi
determines that AltaVista's use of the Yupi Marks is inconsistent with
Yupi's quality standards, then upon Yupi's written request, AltaVista
shall within a reasonable period thereafter conform such use or
services to Yupi's standards. If AltaVista fails to conform such use or
services, Yupi shall have the right to suspend such use of the Yupi's
Marks.
6.3 YUPI ACKNOWLEDGMENT. Yupi acknowledges that the AltaVista Marks are
trademarks and service marks of AltaVista. Yupi understands and agrees
that the use of any AltaVista Mark in connection with this Agreement
shall not create any right, title or interest, in or to the use of the
AltaVista Mark and that all such use and goodwill associated with the
AltaVista Mark will inure to the benefit of AltaVista.
6.4 ALTAVISTA ACKNOWLEDGMENT. AltaVista acknowledges that the Yupi Marks
are trademarks and service marks of Yupi. AltaVista understands and
agrees that the use of any Yupi Mark in connection with this Agreement
shall not create any right, title or interest, in or to the use of the
Yupi Mark and that all such use and goodwill associated with the Yupi
Mark will inure to the benefit of Yupi.
7. CONFIDENTIALITY.
<PAGE>
- 7 -
7.1 THE INTERFACE SPECIFICATIONS AND THE YUPI TRAFFIC REPORTS. Yupi hereby
agrees to maintain in confidence the Interface Specifications and any
portions thereof, and not to use the Interface Specifications for any
purpose other than the purposes specified in this Agreement. Yupi
agrees to disclose the Interface Specifications only to those employees
with a need to know such information for the purposes specified in this
Agreement and not to disclose the Interface Specifications to any third
party. Yupi agrees not to copy the Interface Specifications, except as
reasonably required to accomplish the purposes of this Agreement. Upon
expiration or termination, Yupi's right to use the Interface
Specification, as granted in this Agreement, shall immediately
terminate and Yupi shall return promptly to AltaVista or destroy, at
AltaVista's option, all materials that disclose the Interface
Specification. AltaVista hereby agrees to maintain in confidence the
traffic, monthly and any other reports provided by Yupi to AltaVista
("Reports") or any portions thereof, and not to use the Reports for any
purpose other than the purposes specified in this Agreement. AltaVista
agrees to disclose the Reports only to those employees with a need to
know such information for the purposes specified in this Agreement and
not to disclose the Reports to any third party unless is on an
aggregated basis without specifically identifying the individual
information of Yupi. These are all electronic reports that do not
identify a specific partner. Upon expiration or termination,
AltaVista's right to use the Reports, as granted in this Agreement,
shall immediately terminate and AltaVista shall return promptly to Yupi
or destroy, at Yupi's option, all materials that disclose the Reports
other than records needed for accounting purposes. The invoice
reporting will be maintained in AltaVista records for the required time
under accounting and SEC regulations. The restrictions set forth in
this Section do not apply to any information that is or becomes
generally available to the public or any information independently
developed or properly obtained from an independent source.
7.2 OTHER CONFIDENTIAL INFORMATION. Except, as set forth in Section 7.1
above, nothing in this Agreement shall be deemed to impose any express
or implied confidentiality restrictions or obligations on either party.
In the event that either party wishes to disclose confidential
information (other than the Interface Specifications as specified in
Section 6.1 herein) to the other party, that party shall notify the
other of its desire to do so and specify the information to be
disclosed. In the event that the other party wishes to receive such
information, the parties shall enter a separately executed
nondisclosure agreement.
8 DISCLAIMER OF WARRANTIES.
Yupi hereby acknowledges and agrees that the VAL and access to the AltaVista
index are being licensed to Yupi "as is, with all faults," and that AltaVista
makes no representations or warranties, express or implied, as to the
usefulness, accuracy, completeness, feasibility, reliability or effectiveness of
the VAL, the AltaVista search engine or the AltaVista index, or that the VAL or
the AltaVista index will meet the objectives or needs of Yupi or any third
party, that the operation of the VAL or the AltaVista index will be
uninterrupted or effort-free, or that defects in the VAL or any AltaVista index
have been or will be corrected. In particular, and without limiting the
<PAGE>
- 8 -
foregoing, AltaVista makes no representations as to the completeness of search
results obtained by using the AltaVista index. Without limiting the foregoing,
AltaVista hereby disclaims all warranties of merchantability and fitness for a
particular purpose in connection with the VAL and the AltaVista index. In no
event shall AltaVista be liable to Yupi for any failure, disruption, downtime,
interruption, miscalculation, incorrect linkage, delay, inaccuracy or other
nonperformance of the VAL or the AltaVista index.
9. LIMITATION OF LIABILITY.
In no event shall a party to this agreement be liable for any special, indirect,
incidental or consequential damages, including, without limitation, for lost
profits, in any way arising out of or relating to this agreement, even in the
event such party has been advised as to the possibility of such damages.
10. YUPI REPRESENTATIONS AND WARRANTIES.
10.1 Yupi hereby represents and warrants to AltaVista that as of the
Effective Date:
(a) Yupi has the full corporate right, power and authority to enter
into this Agreement and to perform the acts required of it hereunder;
(b) The execution of this Agreement by Yupi, and the performance by
Yupi of its obligations and duties hereunder, do not and will not violate any
agreement to which Yupi is a party or by which it is otherwise bound;
(c) Yupi acknowledges that AltaVista makes no representations,
warranties or agreements related to the subject matter hereof that are not
expressly provided for in this Agreement.
10.2 AltaVista hereby represents and warrants to Yupi that as of the
Effective Date
(a) AltaVista has the full corporate right, power and authority to
enter into this Agreement and to perform the acts required of it hereunder;
(b) The execution of this Agreement by AltaVista, and the performance
by AltaVista of its obligations and duties hereunder, do not and will not
violate any agreement to which AltaVista is a party or by which it is otherwise
bound;
(c) AltaVista acknowledges that Yupi makes no representations,
warranties or agreements related to the subject matter hereof that are not
expressly provided for in this Agreement.
11. TERM AND TERMINATION.
<PAGE>
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11.1 TERM. This Agreement shall become effective on the Effective Date and
shall continue in full force and effect until two year after the Effective Date,
unless earlier terminated in accordance with this Agreement. Thereafter, this
Agreement will automatically renew on a year-to-year basis unless either party
objects to such renewal in writing within thirty (30) days prior to the
applicable renewal date
11.2 EVENTS OF TERMINATION. This Agreement shall be subject to termination
upon the occurrence of the following events:
(a) if either party hereto defaults on any of its material obligations,
representations or warranties under this Agreement, the non-defaulting party
shall have the right, exercisable in its sole discretion, to terminate this
Agreement by written notice describing with reasonable specificity the nature of
the default and requesting that it be cured, unless within thirty (30) calendar
days after written notice of such default the defaulting party remedies the
default;
(b) if (a) either party files a petition for bankruptcy or is
adjudicated a bankrupt; (b) a petition in bankruptcy is filed against either
party; (c) either party makes an assignment for the benefit of its creditors or
an arrangement for its creditors pursuant to any bankruptcy law; (d) either
party discontinues its business; or (e) a receiver is appointed for either party
or its business, then the other party shall have the right to terminate this
agreement immediately upon written notice.
(c) if Yupi or AltaVista elect to terminate the agreement by giving the
other party at least 30 days prior written notice upon the occurrence of a
Change of Control. For purposes of this Agreement, "Change of Control" shall be
defined as a transfer, sale, conveyance or assignment of more than 50% of the
shares, voting rights, beneficial interest or control of a party.
11.3 EFFECT OF TERMINATION.
(a) Termination of this Agreement by either party hereto shall not act
as a waiver of any breach of this Agreement and shall not act as a release of
either party hereto from any liability for breach of such party's obligations
under this Agreement.
(b) Within forty-five (45) calendar days of the expiration or
termination of this Agreement, the parties shall pay to the other party all
sums, if any, due and owing as of the date of expiration or termination.
11.4 SURVIVAL. The respective rights and obligations of Alta Vista and Yupi
under the provisions of Sections 5, 6.3, 6.4, 7, 8, 9, 10, 11, and 12 hereof
shall survive expiration or termination of this Agreement.
12. MISCELLANEOUS.
<PAGE>
- 10 -
12.1 NO JOINT VENTURE. The sole relationship between the parties shall be
that of licensor and licensee. The parties are independent contractors and
neither is the agent of the other. Each party shall be solely responsible for
the actions of all their respective employees, agents and representatives.
12.2 GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Florida, without regard to the
principles of conflicts of laws, and with the same force and effect as if fully
executed and performed therein, and the laws of the United States of America.
12.3 REMEDIES CUMULATIVE. Except as otherwise expressly specified herein,
the rights and remedies granted to each party under this Agreement are
cumulative and in addition to, and not in lieu of, any other rights or remedies
that such party may possess at law or in equity.
12.4 AMENDMENT OR MODIFICATION. This Agreement may not be amended, modified
or supplemented by the parties in any manner, except by an instrument in writing
signed on behalf of each of the parties by a duly authorized officer or
representative.
12.5 NO ASSIGNMENT. Neither party shall transfer or assign any rights or
delegate any obligations hereunder, in whole or in part, whether voluntarily or
by operation of law, without the prior written consent of the other party. Any
purported transfer, assignment or delegation by either party without the
appropriate prior written approval shall be null and void and of no force or
effect. Notwithstanding the foregoing, without securing such prior consent,
either party shall have the right to assign this Agreement and the obligations
hereunder to any successor of such party by way of merger, consolidation,
reorganization or the acquisition of substantially all of the business and
assets of the assigning party relating to the Agreement.
12.6 NOTICES. All notices, requests, demands or other communications under
this Agreement shall be in writing and may be sent by mail, facsimile, or an
authorized electronic address to the addressee and offices specified below.
Either party may change its address for purposes hereof upon prior notice to the
other party. Notices hereunder shall be directed:
If to YUPI, to:
Oscar Coen, CEO
Yupi.com
830 Lincoln Road, 2nd floor
Miami Beach, FL 33139
With a copy to:
Ariel Bentata
Bentata Hoet & Associates
100 SE, 2nd St., 38th Floor
Miami, Florida 33131
<PAGE>
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If to AltaVista, to:
Lauren Wojnarowski
Vice President
AltaVista Search Services
The AltaVista Company
1825 S. Grant St.
San Mateo, CA. 94402
12.7 ENTIRE AGREEMENT. This Agreement (including the Exhibits attached
hereto) represents the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and/or contemporaneous agreements
and understandings, written or oral between the parties with respect to the
subject matter hereof.
12.8 WAIVER. Any of the provisions of this Agreement may be waived by the
party entitled to the benefit thereof. Neither party shall be deemed, by any act
or omission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by the waiving party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event shall not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
12.9 NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
person other than the parties and the respective successors or assigns of the
parties, any rights, remedies, obligations or liabilities whatsoever.
12.10 SEVERABILITY. If the application of any provision or provisions of this
Agreement to any particular facts of circumstances shall be held to be invalid
or unenforceable by any court of competent jurisdiction, then: (i) the validity
and enforceability of such provision or provisions as applied to any other
particular facts or circumstances and the validity of other provisions of this
Agreement shall not in any way be affected or impaired thereby; and (ii) such
provision or provisions shall be reformed without further action by the parties
hereto and only to the extent necessary to make such provision or provisions
valid and enforceable when applied to such particular facts and circumstances.
12.11 COUNTERPARTS; FACSIMILES. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one and the same
instrument. Each party shall receive a duplicate original of the counterpart
copy or copies executed by it. For purposes hereof, a facsimile copy of this
Agreement, including the signature pages hereto, shall be deemed to be an
original. Notwithstanding the foregoing, the parties shall each deliver original
execution copies of this Agreement to one another as soon as practicable
following execution thereof.
IN WITNESS WHEREOF, the parties to this Agreement by their duly authorized
representatives have executed this Agreement as of the date first above written.
<PAGE>
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FOR ALTAVISTA COMPANY FOR YUPI INTERNET, INC.:
By: /S/ KURT LOS By: /S/ OSCAR L. COEN
-------------------------- -----------------------------
Name: KURT LOS Name: OSCAR L. COEN
Title: Title: CEO
<PAGE>
EXHIBIT A
TO
VALUE-ADDED LINK AGREEMENT
DESCRIPTION OF YUPI PROPERTIES
WWW.YUPI.COM
WWW.CIUDADFUTURA.COM
WWW.AMARILLAS.COM
WWW.CHARLAS.COM
[SUBJECT TO INCLUSION OF
ADDITIONAL PROPERTIES AND/OR
ALTERATION TO SITES LISTED ABOVE]
<PAGE>
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EXHIBIT "B"
TO
VALUE-ADDED LINK AGREEMENT
INTERFACE SPECIFICATIONS
[CONFIDENTIAL TREATMENT REQUESTED]/*/
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/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
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[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
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[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
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[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
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EXHIBIT "C"
TO
VALUE-ADDED LINK AGREEMENT
FORM OF USER INTERFACE DESIGN
[contains picture of Yupi Internet Inc.'s homepage]
<PAGE>
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EXHIBIT "D"
TO
VALUE-ADDED LINK AGREEMENT
FORM OF ALTAVISTA ATTRIBUTION
[picture of AltaVista Equipment Corporation's logo]
<PAGE>
- 20 -
EXHIBIT "F-1"
TO
VALUE-ADDED LINK AGREEMENT
ALTAVISTA TRADEMARK USAGE GUIDELINES
GUIDELINES FOR USE OF ALTAVISTA/Trademark/ LOGO AND WORD MARKS
[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- 21 -
[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
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EXHIBIT "F-2"
TO
VALUE-ADDED LINK AGREEMENT
YUPI TRADEMARK USAGE GUIDELINES
THE FOLLOWING LOGOS ARE THE ONLY LOGOS AND DESIGNS
BEARING THE "YUPI" TRADEMARK, WHICH MAY BE USED BY
ALTAVISTA IN ACCORDANCE WITH THIS AGREEMENT:
ATTACHED ON FOLLOWING PAGE
THE LOGO MUST BE USED IN ITS ENTIRETY AND MAY NOT BE
ALTERED, MODIFIED, REDUCED, IN WHOLE OR IN PART IN ANY
WAY. THE SYMBOL (C) MUST ALWAYS BE PART OF THE LOGO
EVERY REFERENCE TO THE WORD "YUPI" SHALL BE FOLLOWED BY A
"TM" SYMBOL.
EXHIBIT 10.18
PROMISSORY NOTE
US $4,000,000.00 As of August 6, 1999
FOR VALUE RECEIVED, the undersigned, Yupi Internet Inc., a Florida
corporation ("Maker"), hereby promises to pay to the order of Planificacion y
Estrategia de Internet, S.L., a Spanish company ("Lender"), at its principal
office at Calle de la Princesa 29, 28008 Madrid, Spain, or at such other place
as may be designated from time to time in writing by Lender, the principal sum
of Four Million Dollars and 00/100 (US$4,000,000.00) (the "Principal Amount"),
less the value of any Claims (as defined in the immediately following paragraph
(the Principal Amount, less the value of any Claims, is referred to herein as
the "Adjusted Principal Amount"), together with interest in arrears from and
including the date hereof on the unpaid principal balance hereunder at the rate
of nine percent (9%) per annum. Interest shall be calculated on the basis of
actual number of days elapsed and a year of 365 or 366 days, as applicable.
Principal and interest shall be payable in lawful money of the United States of
America.
All principal and interest hereunder shall be due and payable in a
single payment on March 15, 2000 (the "Maturity Date"). Notwithstanding the
immediately preceding sentence, the Lender, in its sole discretion, may at any
time extend the Maturity Date by up to 30 days. The Adjusted Principal Amount
shall be determined by subtracting from the Principal Amount the aggregate
amount of any claims for liabilities, damages or losses made by the Maker (the
"Claims") pursuant to Section 5(f) of the "Contrato de Compraventa" dated
February 15, 1999 (the "Contract"), entered into by and among the Maker, the
Lender and certain other individuals and entities, as supplemented by (a) the
Annex to the Contract dated March 10, 1999, by and among the Maker, the Lender
and certain other individuals and entities, (b) the Master Bill of Sale,
Assignment and Assumption Agreement, dated March 15, 1999, by and among the
Maker, the Lender and certain other individuals and entities. Maker's payment of
the Adjusted Principal Amount, together with any interest accrued and owing
thereon, shall be deemed full payment herein.
<PAGE>
This Note may be prepaid in whole or in part at any time prior to the
Maturity Date without premium or penalty.
If any day on which a payment is due pursuant to the terms of this Note
is not a day on which banks in the State of Florida are generally open (a
"Business Day"), such payment shall be due on the next Business Day following.
If this Note is not paid in accordance with its terms, Maker shall pay
to Lender, in addition to principal and accrued interest thereon, (i) an
additional interest rate on any overdue principal and interest balance hereunder
at the rate of two percent (2%) per annum. Interest shall be calculated on the
basis of actual number of days elapsed from the date that principal and interest
became payable through the date of actual payment; and (ii) all reasonable costs
of collection of the principal and accrued interest, including, but not limited
to, reasonable attorneys' fees, court costs and other costs for the enforcement
of payment of this Note.
No waiver of any obligation of Maker under this Note shall be effective
unless it is in a writing signed by Lender. A waiver by Lender of any right or
remedy under this Note on any occasion shall not be a bar to exercise of the
same right or remedy or any subsequent occasion or of any other right or remedy
at any time.
Any notice required or permitted under this Note shall be in writing
and shall be deemed to have been given on the date of delivery, if personally
delivered to the party to whom notice is to be given, or on the fifth business
day after mailing, if mailed to the party to whom notice is to be given, by
certified mail, return receipt requested, postage prepaid, and addressed to the
addressee at the address of the addressee set forth herein, or to the most
recent address, specified by written notice, given to the sender pursuant to
this paragraph.
This Note shall be construed and enforced in accordance with the laws
of the State of Florida, and shall be construed in accordance therewith, without
reference to its conflicts of laws principles. Any action brought against Maker
shall be brought in the State or Federal Courts of Miami-Dade County, Florida.
In the event any one or more of the provisions of this Note shall for
any reason be held to be invalid, illegal or unenforceable, in whole or in part
or in any respect, or in the event that any one or more of the provisions of
this Note operate or would prospectively operate to invalidate this Note, then
and in any such event, such provision(s) only shall be deemed null and void and
shall not affect any other
-2 -
<PAGE>
provision of this Note and the remaining provisions of this Note shall remain
operative and in full force and effect and in no way shall be affected,
prejudiced, or disturbed thereby.
IN WITNESS WHEREOF, Maker has executed this Note as of the date first
hereinabove written.
MAKER:
YUPI INTERNET INC.
By: /s/ Luis San Miguel
------------------------------------
Luis San Miguel
Chief Financial Officer
IN WITNESS WHEREOF, the party named above, have caused this Agreement to be
executed on the last date set forth below.
By:
------------------------------------
STATE OF CALIFORNIA )
) SS:
COUNTY OF LA )
----
I hereby certify that on this 30th day of DEC., 1999, personally
appeared LUIS SAN MIGUEL who is personally know to me, or produced the following
as identification FLORIDA DRIV. LIC., and she/he acknowledged before me that
she/he executed the foregoing document as her/his free act and deed.
In Witness whereof, I base hereunto set my hand and seal in the State
and County aforesaid as of this 30th day of DEC., 1999
/s/ Dawn A. Joyal
------------------------------------
Notary Public Signature
Dawn A. Joyal
------------------------------------
Printed or Typed Name of Notary
Commission No: 1087298
----------------------
My Commission Expires:
[SEAL]
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EXHIBIT 10.19
News America Incorporated
1211 Avenue of the Americas
New York, New York 10036
November 4, 1999
Ms. Marlena Delgado
Executive Vice President and Managing Director
Yupi Internet Inc.
605 Lincoln Road
Suite 401
Miami Beach, FL 33139
Dear Marlena:
This letter agreement ("Letter Agreement") between Yupi Internet Inc.,
a Florida corporation (the "Company"), and News America Incorporated, a Delaware
corporation ("NAI"), sets forth the terms pursuant to which certain advertising
services shall be purchased by the Company and provided by the News Group
Companies (as defined herein). The parties hereto agree to the terms set forth
below:
1. CONSIDERATION; TERM OF AGREEMENT.
The Company hereby agrees to purchase from NAI and other News
Group Companies for $12,500,000 in cash (payable as provided herein), and NAI
agrees to provide to the Company, and to cause other News Group Companies to
provide to the Company, advertising and promotional inventory (the "Advertising
Inventory") and related services (together with the Advertising Inventory, the
"Advertising Services") on and in respect of media of all types available
through the News Group Companies worldwide, including without limitation,
on-line, television, radio and print media, which such Advertising Services
shall be (i) equal in value to $12,500,000 (exclusive of any agency fees payable
in connection with the Company's purchase of Advertising Inventory and other
Advertising Services hereunder, which such agency fees shall be excluded from
the $12,500,000 purchase price paid by the Company for Advertising Services
hereunder (the "Advertising Budget") and shall be separately paid for by the
Company), which
<PAGE>
such value shall be determined in the manner provided herein, (ii) paid for and
rendered in full within the thirty (30) month period commencing on January 1,
2000 (the "Term"), (iii) used for the purpose of advertising and promoting the
world wide web sites owned and/or controlled by Yupi, including but not limited
to those having the URL http://www.yupi.com and/or the URL of any other site
included in the Yupi network of majority owned sites (the "Sites"); and (iv) may
be used for the purpose of co-advertising and co-promoting the Sites with third
parties subject to the provisions of Section 3(a) hereof. All such Advertising
Services shall be paid for by the Company and rendered by the News Group
Companies, respectively, in the manner set forth herein. In the event that upon
expiration of the Term (i) the News Group Companies then include, at a minimum,
Fox Sports Latin America, Fox Kids Latin America, Inc. and the Fox Latin America
Channel, Inc., and/or other entities that, in the aggregate, then generate
ratings in Latin American markets equivalent or better than the aggregate
ratings generated by those entities on the date hereof and present similar
programming content to that shown by those entities on the date hereof, and (ii)
Yupi has not paid to NAI in full amount equivalent to the Advertising Budget,
Yupi shall pay to NAI an amount equivalent to the then-remaining unpaid balance
of the Advertising Budget within thirty (30) days after the date of expiration
of the Term.
As used herein, "News Group Companies" shall include (i) any
corporation or other entity Controlled (as defined herein) by The New
Corporation Limited ("News Corporation"), including but not limited to Fox
Sports Latin America and the Fox Latin America Channel, Inc. and (ii) Fox Kids
Latin America, Inc. As used herein, a corporation or other entity shall be
deemed "Controlled" by another party if more than fifty percent (50%) of the
outstanding voting securities or other equity interests of such corporation or
other entity is owned, directly or indirectly, by such other party.
<PAGE>
2. MARKETING PLAN; COORDINATION OF ADVERTISING SERVICES.
NAI shall assist the Company in structuring a comprehensive
integrated marketing plan (the "Marketing Plan") which shall set forth the
Advertising Services that the parties contemplate will be provided to the
Company by NAI and other News Group Companies pursuant hereto. NAI and the
Company shall confer regularly in respect of the Company's implementation of the
Marketing Plan and the Company's periodic purchases of Advertising Services. The
Company shall make final selections of all Advertising Inventory, and shall
coordinate implementation of all Advertising Services generally, directly
through News Group Company providing such Advertising Services. NAI shall use
commercially reasonable efforts to satisfy, and to cause all other News Group
Companies to satisfy, requests made by the Company in connection with the
selection of such Advertising Inventory and implementation of such Advertising
Services generally. Each party shall designate a representative responsible for
coordinating the relationship between the parties as contemplated by this
Section 2.
3. RATES FOR ADVERTISING SERVICES.
(a) All Advertising Inventory and other Advertising Services
provided to the Company by the News Group Companies hereunder shall be (i)
subject to availability and to the technical and other requirements specific to
the News Group Companies and media involved, (ii) agreed upon jointly and in
good faith by the Company, NAI and any other News Group Company providing
Advertising Inventory or other Advertising Services to the Company, (iii) valued
at the then-current rates charged by the News Group Company providing such
Advertising Inventory or other Advertising Services to non-affiliated buyers of
similar amounts of comparable inventory and services; provided, however, that
all purchases by the Company of Advertising Inventory from those News Group
Companies listed on SCHEDULE A hereto (the "Fox Latin America Group") shall be
valued at the lower of (x) the rates set forth on said schedule and
<PAGE>
(y) the lowest rates then being charged by the Fox Latin America Group to
non-affiliated buyers of comparable inventory and services on the Fox Latin
America Group properties, unless such other buyers commit to spend in excess of
$12.5 million in cash over a 30-month period or less; and (iv) paid for by the
Company as provided in Subsection 3(b) hereof. Except as expressly provided
herein, the Advertising Services purchased by the Company hereunder shall not be
transferable. The Advertising Services may be utilized by the Company's
affiliates, any successor in interest to all or substantially all of the
Company's business or assets, and by the Company to advertise or promote the
Sites in conjunction with other goods and/or services offered by the Company
and/or any third party; provided, however, that the Company, its affiliates and
its successors shall not utilize the Advertising Services to advertise or
promote any business or service that is directly competitive with any business
or service owned or Controlled by any of the News Group Companies without NAI's
prior written consent thereto. This Letter Agreement may be assigned by the
Company to any successor in interest to all or substantially all of the
Company's business or assets, subject to the limitations set forth herein.
(b) Neither party shall have any rights or obligations in
respect of particular Advertising Services until the purchase thereof has been
confirmed in accordance with the customary procedures applied by the News Group
Company providing such Advertising Services to the Company. Additionally, each
purchase of Advertising Services by the Company shall be subject to the
customary terms and conditions, including but not limited to those relating to
the production and delivery of materials and the payment for, and/or
cancellation of, reserved Advertising Inventory and other agreed-upon
Advertising Services, generally applied by the News Group Company providing such
Advertising Services to the Company.
(c) The News Group Companies shall not provide to the Company,
or charge the Company for, any Advertising Services that the Company has not
requested.
<PAGE>
4. MISCELLANEOUS.
(a) Each party represents to the other that this Letter
Agreement has been duly authorized, executed and delivered by such party and
constitutes the legal, valid and binding obligation of such party, and is
enforceable against such party in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting the rights of creditors generally and by
general principles of equity.
(b) This Letter Agreement may be executed in counterparts,
each of which shall be deemed an original and each of which shall constitute one
and the same instrument. This Letter Agreement will be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to its conflicts of law rules.
(c) This Letter Agreement may be amended except by a written
instrument executed by both parties. This Agreement shall be binding upon and
inure of the benefit of the parties and their respective successors and
assigns.
Please indicate your agreement to the foregoing by signing below.
Very truly yours,
NEWS AMERICA INCORPORATED
By: /s/ Janet Nova
-----------------------
Name: Janet Nova
Title: Vice President
Agreed:
YUPI INTERNET INC.
By: /s/ Marlena Delgado
-----------------------
Name: Marlena Delgado
Title: EVP Managing Director
<PAGE>
SCHEDULE A
FOX LATIN AMERICA GROUP RATE CARD
Fox Latin America
[CONFIDENTIAL TREATMENT REQUESTED]/*/
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
