<PAGE>
As filed with the Securities and Exchange Commission on February 23, 2000
Registration No. 333-93015
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
Amendment No. 4
To
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
HOMEGROCER.COM, INC.
(Exact Name of Registrant as Specified in Its Charter)
---------------
<TABLE>
<S> <C> <C>
Delaware 5411 91-1863408
<CAPTION>
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
10230 N.E. Points Drive
Kirkland, Washington 98033
(425) 201-7500
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
---------------
Mary Alice Taylor
HomeGrocer.com, Inc.
Chief Executive Officer
10230 N.E. Points Drive
Kirkland, Washington 98033
(425) 201-7500
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
---------------
COPIES TO:
<TABLE>
<S> <C>
William W. Ericson, Esq. Daniel G. Kelly, Jr., Esq.
Sonya F. Erickson, Esq. DAVIS POLK & WARDWELL
VENTURE LAW GROUP 1600 El Camino Real
A Professional Corporation Menlo Park, CA 94025
4750 Carillon Point
Kirkland, WA 98033
</TABLE>
---------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
---------------
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, please 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,
please 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 that specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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Explanatory Note
This registration statement contains two separate prospectuses. The first
prospectus relates to a public offering in the United States and Canada of an
aggregate of shares of common stock. The second prospectus relates
to a concurrent offering outside the United States and Canada of an aggregate
of shares of common stock. The prospectuses for each of the U.S.
offering and the international offering will be identical with the exception
of an alternate front cover page for the international offering. This
alternate page appears in this registration statement immediately following
the complete prospectus for the U.S. offering.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by HomeGrocer.com in connection
with the sale of common stock being registered. All amounts are estimates
except the SEC registration fee and the NASD filing fee and the Nasdaq National
Market listing fee.
<TABLE>
<CAPTION>
Amount
to be Paid
----------
<S> <C>
SEC registration fee........................................... $ 80,151
NASD filing fee................................................ 30,500
Nasdaq National Market listing fee............................. 90,000
Printing and engraving expenses................................ 250,000
Legal fees and expenses........................................ 500,000
Accounting fees and expenses................................... 300,000
Blue Sky qualification fees and expenses....................... 10,000
Transfer Agent and Registrar fees.............................. 15,000
Miscellaneous fees and expenses................................ 124,349
----------
Total...................................................... $1,400,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") and Section 145 of the Delaware General
Corporation Law (the "DGCL") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under some circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). The registrant's Bylaws (Exhibits 3.4 and 3.5 hereto)
provide for indemnification of the registrant's directors, officers, employees
and agents to the maximum extent permitted by Washington or Delaware law, as
applicable. The directors and officers of the registrant also may be
indemnified against liability they may incur for serving in that capacity
pursuant to a liability insurance policy maintained by the registrant for such
purpose.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary
damages for acts or omissions as a director, except in circumstances involving
intentional misconduct, knowing violations of law or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. The registrant's Articles of Incorporation (Exhibit 3.2 hereto) and
Certificate of Incorporation (Exhibit 3.1) contain provisions implementing, to
the fullest extent permitted by Washington or Delaware law, as applicable, such
limitations on a director's liability to the registrant and its shareholders.
The registrant will enter into indemnification agreements with its officers
and directors, the form of which is attached as Exhibit 10.26 to this
Registration Statement and incorporated herein by reference. The
indemnification agreements provide the registrant's officers and directors with
indemnification to the maximum extent permitted by the WBCA.
Item 15. Recent Sales of Unregistered Securities
Since HomeGrocer.com's inception through January 1, 2000, HomeGrocer.com has
issued and sold the following unregistered securities:
1. From inception to January 1, 2000, HomeGrocer.com granted and issued
options to purchase 15,319,400 shares of its common stock with a weighted
average price of $1.05 to a number of employees,
II-1
<PAGE>
directors and consultants of HomeGrocer.com pursuant to its 1997 stock
incentive compensation plan. Among those receiving options were Tom A.
Alberg, Mary B. Anderson, Charles K. Barbo, James L. Barksdale, Rex L.
Carter, Ken Deering, Robert Duffy, Corwin Karaffa, Jonathan Landers,
Jonathan D. Lazarus, Daniel R. Lee, Daniel J. Murphy, David A. Pace, Philip
S. Schlein and Kristin H. Stred.
2. From inception to January 1, 2000, HomeGrocer.com has issued an
aggregate of 8,250,870 shares of its common stock to executive officers,
directors and employees upon the exercise of stock options granted pursuant
to the HomeGrocer.com 1997 stock incentive compensation plan with an
aggregate exercise price of $5,674,568. Among those that HomeGrocer.com
issued shares to were Tom A. Alberg, Mary B. Anderson, Charles K. Barbo,
James L. Barksdale, Rex L. Carter, Ken Deering, Robert Duffy, Corwin
Karaffa, Jonathan D. Lazarus, Jonathan Landers, Daniel R. Lee, David A.
Pace, Philip S. Schlein and Kristin H. Stred.
3. On September 29, 1997, HomeGrocer.com issued an aggregate of
15,200,000 shares of its common stock to investors and J. Terrence Drayton,
our president, in connection with the domestication of its Canadian
predecessor into the state of Delaware for consideration of the Canadian
shares.
4. On October 15, 1997 and September 1, 1998, HomeGrocer.com issued
Organic Online, Inc. a total of 800,000 shares of its common stock and
500,000 shares of its Series A preferred stock for consideration of
services rendered. On May 21, 1999, HomeGrocer repurchased 250,000 shares
of this common stock from Organic Online, Inc. in connection with an
agreement to terminate services.
5. On February 11, 1998, HomeGrocer.com granted and issued warrants with
an expiration date of December 31, 2000, to purchase an aggregate of
1,800,000 shares of its common stock, at an exercise price of $0.375 per
share, to the following investors in connection with a bridge loan
financing: an entity affiliated with the Barbo Group, Madrona Investment
Group, LLC, Geoffrey A. Boguch, an entity affiliated with Kleiner Perkins
Group, Michael B. Donald, an entity affiliated with the Heffring Group,
Richard J. Robbins and Bonnie B Robbins (as Tenants in Common), Spanish
Caravan Investments, LLC, Dennis M. Weibling, Arthur W. Harrigan, John
Maynard and Terran Ventures, Inc., Terran Ventures is an affiliate of J.
Terrence Drayton, an executive officer.
6. On June 25, 1998, HomeGrocer.com granted and issued a warrant with an
expiration date of December 31, 2000, to purchase 965,666 shares of its
common stock at an exercise price of $0.50 per share to Fitpro Pty. Ltd, in
connection with a bridge loan financing.
7. In July 1998, HomeGrocer.com granted and issued warrants with an
expiration date of July 2005 or three years from the effective date of this
offering, whichever is earlier,, to purchase an aggregate of 300,000 shares
of its common stock at an exercise price of $0.50 per share to First
Portland Corp. and Silicon Valley Bank, each in connection with a
commercial loan.
8. On September 1, 1998, HomeGrocer.com issued 16,857,142 shares of its
Series B preferred stock to investors, including to entities affiliated
with Hummer Winblad Group, entities affiliated with Kleiner Perkins Group
and the Lazarus Family Investments LLC for an aggregate cash consideration
of approximately $5,900,000.
9. On October 19, 1998, HomeGrocer.com granted and issued a warrant with
an expiration date of October 19, 2005 or three years from the effective
date of this offering, whichever is earlier, to purchase 4,120 shares of
its common stock at an exercise price of $0.50 per share to First Portland
Corp. in connection with a equipment leasing arrangement.
10. On November 9, 1998, HomeGrocer.com granted and issued a warrant,
with an expiration date of November 9, 2005 or three years from the
effective date of this offering, whichever is earlier, to purchase 153,600
shares of its Series C to Comdisco, Inc., with an exercise price of
$0.78125 per share, in connection with a equipment leasing arrangement.
11. On February 11, 1999, April 3, 1998, June 2, 1998, and July 16,
1998, HomeGrocer.com issued 8,000,000 shares of its Series A preferred
stock to investors, including but not limited to Fitpro Pty Ltd.,
II-2
<PAGE>
Stewart A. Konzen, entities affiliated with Hummer Winblad Group, entities
affiliated with the Barbo Group, Madrona Investment Group, LLC, Organic,
Inc., Richard J. Robbins and Bonnie B. Robbins (Tenants in Common),
Geoffrey A. Boguch, R. Kirk Wilson, entities affiliated with the Sonntag
Group, Lazarus Family Investments LLC, and entities associated with Kleiner
Perkins Group for an aggregate cash consideration of $4,000,000. Of the
8,000,000 shares of Series A preferred stock, HomeGrocer.com issued 50,000
shares to Terran Ventures, Inc., an affiliate of our president, J. Terrence
Drayton. Of the 8,000,000 shares of Series A preferred stock,
HomeGrocer.com issued 100,000 shares to Director Charles Barbo.
12. On March 15, 1999, HomeGrocer.com issued 300,000 shares of its
common stock at an exercise price of $0.375 per share to C&LB Family
Limited Partnership, an entity associated with the Barbo Group, pursuant to
a common stock warrant dated February 11, 1998, for an aggregate cash
consideration of $112,500.
13. On March 30, 1999, HomeGrocer.com issued 300,000 shares of its
common stock at an exercise price of $0.375 per share to Geoffrey A.
Boguch, pursuant to a common stock warrant dated February 11, 1998, for an
aggregate cash consideration of $112,500.
14. On April 13, 1998 and May 13, 1998, HomeGrocer.com issued 29,942,050
shares of its Series C preferred stock to investors, including but not
limited to Amazon.com, Inc., entities affiliated with the Barksdale Group,
Liberty HG, Inc., entities affiliated with the Hummer Winblad Group and
entities affiliated with the Kleiner Perkins Group for an aggregate cash
consideration of approximately $52,399,000. Of the issued 29,942,050 shares
of its Series C preferred stock, HomeGrocer.com issued 5,516 shares to
director Charles Barbo.
15. On September 9, 1999, HomeGrocer.com granted Mary Alice Taylor, our
Chairman and Chief Executive Officer and J. Terrence Drayton, our president
and a director of HomeGrocer.com, options to purchase an aggregate of
6,150,000 shares of common stock at an exercise price of $0.45 per share
and the two officers exercised the options to purchase the shares on that
date. The options were exercised for aggregate consideration of $2,767,500
in the form of cash and promissory notes from the officers. Additionally,
on September 9, 1999, HomeGrocer.com sold the two officers an aggregate of
2,050,000 shares of common stock at an exercise price of $0.45 per share
for aggregate consideration of $922,500 in the form of cash and promissory
notes from the officers.
16. On September 15, 1999, HomeGrocer.com granted and issued a warrant,
with an expiration date of September 15, 2006 or three years from the
effective date of this offering to purchase 275,862 shares of its Series D
preferred stock to Comdisco, Inc., with an exercise price $5.80 per share.
17. On October 19, 1999, HomeGrocer.com issued 100,000 shares of its
common stock at an exercise price of $0.375 per share to Spanish Caravan
Investments, LLC, pursuant to a common stock warrant dated February 11,
1998, for an aggregate cash consideration of $37,500.
18. On October 21, 1999, HomeGrocer.com issued 50,000 shares of its
common stock at an exercise price of $0.375 per share to Arthur W.
Harrigan, Jr., pursuant to a common stock warrant dated February 11, 1998,
for an aggregate cash consideration of $18,750.
19. On September 30, 1999, October 13, 1999, October 29, 1999, November
12, 1999 and November 18, 1999, HomeGrocer.com issued 18,407,546 shares of
its Series D preferred stock to investors, including but not limited to
Amazon.com, Inc., an entity affiliated with the Hummer Winblad Group,
entities affiliated with the Kleiner Perkins Group, entities associated
with the Barksdale Group, entities associated with Hambrecht & Quist Group,
Liberty HG, Inc., Madrona Investment Group, entities affiliated with Van
Wagoner Group, Martha Stewart, Comdisco, Inc., and entities affiliated with
the Lazarus Group for an aggregate cash consideration of approximately
$106,764,000. Of the 18,407,546 shares of its Series D preferred stock,
HomeGrocer.com also issued 17,200 shares to Director Charles Barbo.
Additionally, chief executive officer Mary Alice Taylor was issued 17,240
shares.
II-3
<PAGE>
20. In January 2000, HomeGrocer.com issued an aggregate of 1,050,000
shares of its common stock at an exercise price of $0.375 per share upon
the exercise of common stock warrants dated February 11, 1998 and April 26,
1999, for an aggregate cash consideration of $393,750, to: Madrona
Investment Group, Michael B. Donald, Heffring Investment Group, Richard &
Bonnie Robbins, Spanish Caravan Investments, Dennis M. Weibling, Arthur W.
Harrigan, Jr., Terran Ventures, Inc., John Maynard and entities affiliated
with the Kleiner Perkins Group.
21. In January and February 2000, HomeGrocer.com issued an aggregate of
965,666 shares of its common stock to Fitpro Pty. Ltd. at an exercise price
of $0.50 per share upon exercise of common stock warrants dated June 25,
1998, for an aggregate cash consideration of $482,833.
The issuances of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) and
Regulation D as transactions by an issuer not involving any public offering. In
addition, issuances described in Items 1 and 2 were deemed exempt from
registration under the Securities Act in reliance upon Rule 701 promulgated
under the Securities Act. The recipients of securities in each such transaction
represented their intentions to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates and warrants issued
in such transactions. All recipients had adequate access, through their
relationships with HomeGrocer.com, to information about HomeGrocer.com.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1** Restated Certificate of Incorporation of HomeGrocer.com.
3.2** Amended and Restated Articles of Incorporation of HomeGrocer.com.
3.3** Second Amended and Restated Articles of Incorporation of HomeGrocer.com
(proposed).
3.4** Bylaws of HomeGrocer.com (Delaware).
3.5** Bylaws of HomeGrocer.com (Washington).
4.1** Specimen Stock Certificate.
4.2** Third Amended and Restated Investors Rights Agreement dated September
30, 1999, as amended.
4.3** Warrant Agreement to purchase Series C Preferred Stock dated November
9, 1998 issued by HomeGrocer.com in favor of Comdisco, Inc.
4.4** Warrant Agreement to purchase Series D Preferred Stock dated September
15, 1999 issued by HomeGrocer.com in favor of Comdisco, Inc.
4.5** Form of Common Stock Purchase Warrant issued by HomeGrocer.com to
certain lenders.
4.6** Form of Common Stock Warrant Certificate issued by HomeGrocer.com in
connection with its preferred stock financings.
5.1** Opinion of Venture Law Group regarding the legality of the common stock
being registered.
10.1 Advertising Agreement dated November 18, 1999 between HomeGrocer.com
and Amazon.com, LLC.
10.2** Lease Agreement dated August 16, 1999 between HomeGrocer.com and Valley
Freightliner, Inc.
10.3** Revolving Line of Credit Commitment Letter dated June 11, 1999 by
Mercedes-Benz Credit Corporation in favor of HomeGrocer.com, Inc.
10.4** Master Lease Agreement dated November 9, 1998 between HomeGrocer.com
and Comdisco, Inc.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
10.5** Addendum to Master Lease Agreement dated as of November 9, 1999
between HomeGrocer.com and Comdisco, Inc.
10.6** Subordinated Loan and Security Agreement dated September 15, 1999
between HomeGrocer.com and Comdisco, Inc.
10.7** Form of Promissory Note dated September 9, 1999 issued by Mary Alice
Taylor in favor of HomeGrocer.com.
10.8** Form of Promissory Note dated September 9, 1999 issued by J. Terrence
Drayton in favor of HomeGrocer.com.
10.9** Employment Agreement dated September 2, 1999 between HomeGrocer.com
and Mary Alice Taylor.
10.10** Employment Agreement dated June 1, 1999 between HomeGrocer.com and J.
Terrence Drayton.
10.11** Employment Agreement dated November 3, 1999 between HomeGrocer.com and
Daniel R. Lee.
10.12** Employment Agreement dated August 31, 1999 between HomeGrocer.com and
David A. Pace.
10.13** Facility Lease dated May 19, 1999 between HomeGrocer.com, as
sublessee, and The Plaza at Yarrow Bay, LLC.
10.14** Facility Sublease dated July 22, 1999 between HomeGrocer.com, as
sublessor, and AT&T Wireless Services of Washington, Inc.
10.15** Facility Sublease dated April 8, 1999 between HomeGrocer.com, as
sublessee, and Delta Engineering and Manufacturing.
10.16** Facility Lease dated July 23, 1999 between HomeGrocer.com, as lessee,
and Exposition Property Associates (interest transferred from The
Ezralow Company, LLC).
10.17** Facility Lease dated November 4, 1996 between HomeGrocer.com, as
successor in interest to the lessee, and Benaroya Capital Company,
LLC.
10.18** Facility Sublease dated June 24, 1999 between HomeGrocer.com, as
sublessor, and A&M Warehouses, Incorporated.
10.19** Facility Lease dated July 8, 1999 between HomeGrocer.com, as lessee,
and Lincoln-RECP Fullerton OPCO, LLC.
10.20** Facility Lease dated August 10, 1999 between HomeGrocer.com, as
lessee, and Realty Associates Iowa Corporation.
10.21** Facility Lease dated May 24, 1999 between HomeGrocer.com, as
sublessee, and The Concourse Joint Venture.
10.22** Amendment No. 1 dated June 21, 1999 to the Facility Lease dated May
24, 1999 between HomeGrocer.com, as sublessee, and The Concourse Joint
Venture.
10.23** Facility Sublease dated November 15, 1999 between HomeGrocer.com, as
sublessee, and Thyssen Dover Elevator.
10.24** Facility Lease dated November 15, 1999 between HomeGrocer.com, as
lessee, and Watson Partners, L.P.
10.25** Commercial Lease Agreement dated December 17, 1999 between
HomeGrocer.com as Lessee, and CB Luna Industrial No. 3, Ltd.
10.26** Form of Indemnification Agreement between HomeGrocer.com and each of
its Officers and Directors.
10.27** 1997 Stock Incentive Compensation Plan dated April 1997.
10.28** 1999 Stock Incentive Plan dated December 1999.
10.29** 1999 Employee Stock Purchase Plan dated December 1999.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
10.30** 1999 Directors' Stock Option Plan dated December 1999.
10.31** Network Services Agreement dated December 17, 1997 between
HomeGrocer.com and InterNAP Network Services Corporation.
10.32** Employment Agreement dated November 22, 1999 between HomeGrocer.com
and Rex L. Carter.
10.33** Facility Lease dated January 14, 2000 between HomeGrocer.com and
Reliance Hamilton Associates, LLC.
10.34** Facility Lease dated October 1, 1999 between HomeGrocer.com and Waples
Corporation.
10.35** Facility Lease dated January 4, 2000 between HomeGrocer.com and The
Irvine Company.
10.36** Facility Lease dated January 25, 2000 between HomeGrocer.com and Mercy
Capital Center Joint Venture.
10.37** Retailer's Agreement dated December 10, 1997 between HomeGrocer.com
and SuperValu.
10.38+ Interactive Marketing Agreement dated February 15, 2000 between
HomeGrocer.com and America Online, Inc.
21.1** List of Subsidiaries.
23.1** Consent of Ernst & Young LLP.
23.2** Consent of Venture Law Group (included in Exhibit 5.1).
24.1** Power of Attorney (included in signature page to Registration
Statement).
27.1** Financial Data Schedule.
</TABLE>
- --------
** Previously filed.
+ Confidential treatment has been requested for portions of the copy of the
exhibit filed with the Securities and Exchange Commission. The omitted
information has been filed separately with the Securities and Exchange
Commission under our application for confidential treatment.
(b) Financial Statement Schedules
Schedules have been omitted because the information required to be set forth
therein is not applicable or is shown in the financial statements or notes
thereto.
Item 17. Undertakings
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, 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 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 Act and will be governed by the final
adjudication of such issue.
II-6
<PAGE>
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, 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.
(2) For the purpose of determining any liability under the Securities
Act of 1933, 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-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Kirkland,
State of Washington on February 23, 2000.
HomeGrocer.com, Inc.
/s/ Mary Alice Taylor
By: _________________________________
Mary Alice Taylor
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Mary Alice Taylor Chairman of the Board and February 23, 2000
______________________________________ Chief Executive Officer
Mary Alice Taylor
* Chief Financial Officer February 23, 2000
______________________________________
Daniel R. Lee
* President and Director February 23, 2000
______________________________________
J. Terrence Drayton
* Director February 23, 2000
______________________________________
Tom A. Alberg
* Director February 23, 2000
______________________________________
Charles K. Barbo
* Director February 23, 2000
______________________________________
James L. Barksdale
* Director February 23, 2000
______________________________________
Mark P. Gorenberg
* Director February 23, 2000
______________________________________
Jonathan D. Lazarus
* Director February 23, 2000
______________________________________
Douglas Mackenzie
* Director February 23, 2000
______________________________________
David Risher
* Director February 23, 2000
______________________________________
Philip S. Schlein
/s/ Mary Alice Taylor February 23, 2000
*By: _________________________________
Mary Alice Taylor
Attorney-in-Fact
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1** Restated Certificate of Incorporation of HomeGrocer.com.
3.2** Amended and Restated Articles of Incorporation of HomeGrocer.com.
3.3** Second Amended and Restated Articles of Incorporation of
HomeGrocer.com (proposed).
3.4** Bylaws of HomeGrocer.com (Delaware).
3.5** Bylaws of HomeGrocer.com (Washington).
4.1** Specimen Stock Certificate.
4.2** Third Amended and Restated Investors Rights Agreement dated September
30, 1999, as amended.
4.3** Warrant Agreement to purchase Series C Preferred Stock dated November
9, 1998 issued by HomeGrocer.com in favor of Comdisco, Inc.
4.4** Warrant Agreement to purchase Series D Preferred Stock dated September
15, 1999 issued by HomeGrocer.com in favor of Comdisco, Inc.
4.5** Form of Common Stock Purchase Warrant issued by HomeGrocer.com to
certain lenders.
4.6** Form of Common Stock Warrant Certificate issued by HomeGrocer.com in
connection with its preferred stock financings.
5.1** Opinion of Venture Law Group regarding the legality of the common
stock being registered.
10.1 Advertising Agreement dated November 18, 1999 between HomeGrocer.com
and Amazon.com, LLC.
10.2** Lease Agreement dated August 16, 1999 between HomeGrocer.com and
Valley Freightliner, Inc.
10.3** Revolving Line of Credit Commitment Letter dated June 11, 1999 by
Mercedes-Benz Credit Corporation in favor of HomeGrocer.com, Inc.
10.4** Master Lease Agreement dated November 9, 1998 between HomeGrocer.com
and Comdisco, Inc.
10.5** Addendum to Master Lease Agreement dated as of November 9, 1999
between HomeGrocer.com and Comdisco, Inc.
10.6** Subordinated Loan and Security Agreement dated September 15, 1999
between HomeGrocer.com and Comdisco, Inc.
10.7** Form of Promissory Note dated September 9, 1999 issued by Mary Alice
Taylor in favor of HomeGrocer.com.
10.8** Form of Promissory Note dated September 9, 1999 issued by J. Terrence
Drayton in favor of HomeGrocer.com.
10.9** Employment Agreement dated September 2, 1999 between HomeGrocer.com
and Mary Alice Taylor.
10.10** Employment Agreement dated June 1, 1999 between HomeGrocer.com and J.
Terrence Drayton.
10.11** Employment Agreement dated November 3, 1999 between HomeGrocer.com and
Daniel R. Lee.
10.12** Employment Agreement dated August 31, 1999 between HomeGrocer.com and
David A. Pace.
10.13** Facility Lease dated May 19, 1999 between HomeGrocer.com, as
sublessee, and The Plaza at Yarrow Bay, LLC.
10.14** Facility Sublease dated July 22, 1999 between HomeGrocer.com, as
sublessor, and AT&T Wireless Services of Washington, Inc.
10.15** Facility Sublease dated April 8, 1999 between HomeGrocer.com, as
sublessee, and Delta Engineering and Manufacturing.
10.16** Facility Lease dated July 23, 1999 between HomeGrocer.com, as lessee,
and Exposition Property Associates (interest transferred from The
Ezralow Company, LLC).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
10.17** Facility Lease dated November 4, 1996 between HomeGrocer.com, as
successor in interest to the lessee, and Benaroya Capital Company,
LLC.
10.18** Facility Sublease dated June 24, 1999 between HomeGrocer.com, as
sublessor, and A&M Warehouses, Incorporated.
10.19** Facility Lease dated July 8, 1999 between HomeGrocer.com, as lessee,
and Lincoln-RECP Fullerton OPCO, LLC.
10.20** Facility Lease dated August 10, 1999 between HomeGrocer.com, as
lessee, and Realty Associates Iowa Corporation.
10.21** Facility Lease dated May 24, 1999 between HomeGrocer.com, as
sublessee, and The Concourse Joint Venture.
10.22** Amendment No. 1 dated June 21, 1999 to the Facility Lease dated May
24, 1999 between HomeGrocer.com, as sublessee, and The Concourse Joint
Venture.
10.23** Facility Sublease dated November 15, 1999 between HomeGrocer.com, as
sublessee, and Thyssen Dover Elevator.
10.24** Facility Lease dated November 15, 1999 between HomeGrocer.com, as
lessee, and Watson Partners, L.P.
10.25** Commercial Lease Agreement dated December 17, 1999 between
HomeGrocer.com as Lessee, and CB Luna Industrial No. 3, Ltd.
10.26** Form of Indemnification Agreement between HomeGrocer.com and each of
its Officers and Directors.
10.27** 1997 Stock Incentive Compensation Plan dated April 1997.
10.28** 1999 Stock Incentive Plan dated December 1999.
10.29** 1999 Employee Stock Purchase Plan dated December 1999.
10.30** 1999 Directors' Stock Option Plan dated December 1999.
10.31** Network Services Agreement dated December 17, 1997 between
HomeGrocer.com and InterNAP Network Services Corporation.
10.32** Employment Agreement dated November 22, 1999 between HomeGrocer.com
and Rex L. Carter.
10.33** Facility Lease dated January 14, 2000 between HomeGrocer.com and
Reliance Hamilton Associates, LLC.
10.34** Facility Lease dated October 1, 1999 between HomeGrocer.com and Waples
Corporation.
10.35** Facility Lease dated January 4, 2000 between HomeGrocer.com and The
Irvine Company.
10.36** Facility Lease dated January 25, 2000 between HomeGrocer.com and Mercy
Capital Center Joint Venture.
10.37** Retailer's Agreement dated December 10, 1997 between HomeGrocer.com
and SuperValu.
10.38+ Interactive Marketing Agreement dated February 15, 2000 between
Homegrocer.com and America Online, Inc.
21.1** List of Subsidiaries.
23.1** Consent of Ernst & Young LLP.
23.2** Consent of Venture Law Group (included in Exhibit 5.1).
24.1** Power of Attorney (included in signature page to Registration
Statement).
27.1** Financial Data Schedule.
</TABLE>
- --------
** Previously filed.
+ Confidential treatment has been requested for portions of the copy of the
exhibit filed with the Securities and Exchange Commission. The omitted
information has been filed separately with the Securities and Exchange
Commission under our application for confidential treatment.
<PAGE>
EXHIBIT 10.1
ADVERTISING AGREEMENT
This Advertising Agreement (this "Agreement"), dated as of ________________
1999, is made by and between HomeGrocer.com. Inc., a Delaware corporation
("HomeGrocer") and Amazon.com LLC ("Amazon.com"), a Delaware limited liability
company. In consideration of the mutual promises contained in this Agreement,
HomeGrocer and Amazon.com hereby agree as follows:
1. Advertising Activities. During the Term, in consideration of
HomeGrocer's making the payments specified in Section 2 below, Amazon.com will
conduct the advertising activities specified on Exhibit A.
2. Payments. HomeGrocer will pay Amazon.com an aggregate sum of ten
million dollars ($10,000,000) (the "Aggregate Payment"), as follows: As of the
last day of each of the eight (8) calendar quarters following December 31, 1999
(i.e., each of March 31, 2000; June 30, 2000; September 30, 2000; December 31,
----
2000; March 31, 2001; June 30, 2001; September 30, 2001; and December 31, 2001),
HomeGrocer will pay Amazon.com the sum of one million two hundred and fifty
thousand dollars ($1,250,000); provided, however, that notwithstanding the
foregoing, if at any time prior to September 30, 2001, Amazon.com has delivered
two million (2,000,000) Advertising Mailings (as defined on Exhibit A) to
existing Amazon.com customers, and Amazon.com so notifies HomeGrocer, HomeGrocer
will pay Amazon.com the entire outstanding balance of the Aggregate Payment as
of the last day of the calendar quarter in which Amazon.com has delivered the
two millionth (2,000,000th) Advertising Mailing, and thereafter HomeGrocer shall
have no obligation to make any further payments pursuant to this Agreement.
3. License. HomeGrocer hereby grants Amazon.com a non-exclusive,
worldwide license to use, reproduce, publish, publicly perform and publicly
display HomeGrocer's trademarks, tradenames, other proprietary marks and
copyrighted materials supplied by HomeGrocer, during the term of this agreement
solely in connection with the performance of the advertising activities
specified on Exhibit A. All goodwill arising out of any use of any trademarks,
tradenames or proprietary marks of HomeGrocer by Amazon.com will inure solely to
the benefit of HomeGrocer.
4. HomeGrocer Records and Reporting. During the Term and for a period of
six (6) months thereafter: (a) HomeGrocer will use commercially reasonable
efforts to ensure that its ordering mechanism tracks, and HomeGrocer maintains
accurate and complete records of the unique individual URL and the identity of
each recipient of any Advertising Mailing who accesses the web site located at
www.homegrocer.com (or any successor or replacement thereto) (the "HomeGrocer
- ------------------
Site") and any other person or entity who accesses the HomeGrocer Site by reason
of any links, advertising placements or other advertising efforts undertaken by
Amazon.com in its sole discretion (collectively,"Amazon.com-Delivered Users");
and (b) HomeGrocer will use commercially reasonable efforts to maintain accurate
and complete records of the number of Amazori.com-Delivered Users who place any
order on or through the HomeGrocer Site (including, without limitation, as a
percentage of the total number of Amazon.com-Delivered Users), the dates of any
such orders by Amazon.com-Delivered Users in the aggregate (the information and
data specified in subparagraphs (a) and (b) above,
<PAGE>
collectively, the "HomeGrocer Customer Information"). Beginning January 1, 2000,
within 30 days after the end of each quarter of the Term, HomeGrocer will
deliver to Amazon.com a written statement setting forth: (aa) the HomeGrocer
Customer Information in the aggregate for the preceding quarter and for the Term
to date; (bb) all other aggregated tracking information collected by HomeGrocer
relating to Amazon.com-Delivered Users to the extent permissible under the
parties' respective privacy policies; and (cc) such other aggregated information
regarding purchases and other activity on the HomeGrocer Site by Amazon.com-
Delivered Users as Amazon.com may reasonably request to the extent permissible
under the parties' respective privacy policies. Amazon.com may, at its expense,
examine or audit HomeGrocer's records related to Amazon.com-Delivered Users no
more than once every twelve months. Any such audit will be conducted, to the
extent possible, in a manner that does not unreasonably interfere with
HomeGrocer's business operations.
5. Term and Termination. The term of this Agreement (the "Term") shall
commence as of date set forth above and shall continue until January 1, 2002.
Either party may terminate this Agreement upon not less than thirty (30) days'
prior written notice to the other party of any breach by such other party which
is not cured within such thirty (30) day period. Upon any termination or
expiration of this Agreement, only the rights and obligations of the parties
under Sections 6, 7, 8, 9, 10, 11, 12 and 13 will survive such termination or
expiration.
6. Indemnification. HomeGrocer or Amazon.com, as applicable (in either
case, the "Indemnifying Party") will defend and indemnify the other party and
its affiliates against any third party claim, to the extent arising out of or in
connection with (a) the operation of the web site located at the URL
http://www.amazon.com (in the case of Amazon.com as the Indemnifying Party) or
- ---------------------
the HomeGrocer Site (in the case of HomeGrocer as the Indemnifying Party), or
(b) any breach of this Agreement by the Indemnifying Party. The Indemnifying
Party will pay any award against the other party and any costs and attorneys'
fees reasonably incurred by the other party and its affiliates resulting from
any such claim; provided, that the party seeking indemnification (a) gives the
Indemnifying Party prompt written notice of the claim, (b) cooperates with the
Indemnifying Party (at the Indemnifying Party's expense) in connection with the
defense and settlement of the claim, and (c) permits the Indemnifying Party to
control the defense and settlement of the claim, provided that the Indemnifying
Party may not settle the claim without the indemnified party's prior written
consent (which will not be unreasonably withheld). The indemnified party (at
its cost) may participate in the defense and settlement of the claim.
7. Warranty Exclusion; Limitation of Liability. NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES IN RELATION TO THIS AGREEMENT, ANY WEB SITES OWNED
OR OPERATED BY IT OR ITS PERFORMANCE HEREUNDER, INCLUDING (WITHOUT LIMITATION)
IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AMAZON,
COM SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE AMOUNT
OF REVENUES OR OTHER ECONOMIC OR NON-ECONOMIC BENEFITS THAT HOMEGROCER MAY
OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT. NEITHER PARTY WILL BE LIABLE
TO THE
-2-
<PAGE>
OTHER FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT.
8. Independent Contractors. The parties are independent contractors, and
this Agreement will not be construed to create a partnership, joint venture or
other relationship. Neither party will have, or hold itself out to third parties
as having, any authority to bind or enter into any agreement on the other
party's behalf.
9. Compliance with Laws. In performing this Agreement, each party will
comply with all applicable laws, regulations, orders and other requirements of
any governmental authority, now or hereafter in effect. Without limiting the
generality of the foregoing, each party will be responsible for collection and
payment of such taxes as may be imposed upon such party in the first instance
with respect to any compensation paid or received or transactions under this
Agreement.
10. Notices. Any notice or other communication under this Agreement given
by a party to the other party must, in order to be effective, be in writing and
be sent to the intended recipient by registered letter, receipted commercial
courier, or electronically receipted facsimile transmission (acknowledged in
like manner by the intended recipient) at its address specified below, and with
a copy to the same address addressed Attn: General Counsel. Either party may
change its address for notices by delivery of written notice in accordance with
this Section 10.
11. Assignment. Except as provided in the next sentence, neither party
may assign this Agreement or its rights hereunder, in whole or in part, or
delegate any of its obligations under this Agreement, without the other party's
prior written consent, except that either party may assign this Agreement to any
of its corporate affiliates or in connection with any merger, consolidation,
reorganization, sale of all or substantially all of its assets or similar
transaction, provided that the assignee agrees in writing to be bound by all the
terms and conditions of this Agreement. Notwithstanding the foregoing,
Amazon.com may assign its rights to receive payments hereunder to any person or
entity without restriction. No assignment or delegation of this Agreement or
any rights or obligations hereunder shall relieve the assigning or delegating
party of its obligations under this Agreement in the event of non-performance by
its assignee or delegate. Subject to the foregoing, this Agreement will be
binding on and enforceable by the parties and their respective successors and
permitted assigns.
12. Confidentiality. The terms of this Agreement are the confidential and
proprietary information of Amazon.com, and HomeGrocer will maintain the same in
strict confidence and not disclose the same to any third party (except as
required in filings with the Securities and Exchange Commission, provided that
HomeGrocer, in consultation with Amazon.com, uses reasonable efforts to seek
confidential treatment of the material terms and conditions of this Agreement).
The HomeGrocer Customer Information is confidential and proprietary information
of HomeGrocer.com, and Amazon.com will maintain the same in strict confidence
and not disclose the same to any third party other than Amazon.com's 100% owned
subsidiaries (except as required by applicable law or regulation, provided that
Amazon.com, in consultation with HomeGrocer, uses reasonable efforts to seek
confidential treatment of the same), unless such information enters the public
domain through no fault of Amazon.com. Neither party will issue
-3-
<PAGE>
any press releases, make any other public disclosures regarding this Agreement
or the relationship of the parties, or, except as permitted by Section 3, use
any of the other party's trademarks, tradenames, other proprietary marks or
copyrighted materials without such other party's prior written consent.
13. Miscellaneous. This Agreement (a) represents the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
previous or contemporaneous oral or written agreements regarding such subject
matter, (b) may be amended or modified only by a written instrument signed by a
duly authorized agent of each party, and. (c) will, be governed by the laws of
the State of Washington, without reference to its choice of law rules. No
failure or forbearance by either party to insist upon or enforce performance by
the other party of any of the provisions of this Agreement or to exercise any
rights or remedies under this Agreement or otherwise available at law or equity
shall be construed as a waiver or relinquishment to any extent of such party's
right to assert or rely upon any such provision, right, or remedy in that or any
other instance; rather the same shall be and remain in full force and effect.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
later date set forth below.
AMAZON.COM: HOMEGROCER:
---------- ----------
Amazon.com LLC HomeGrocer.com, Inc.
By: /s/ Randy Tinsley By: /s/ Mary Alice Taylor
------------------------------- --------------------------------
Title: VP of Business Development Title: Chairman and CEO
---------------------------- -----------------------------
Date: 11/18/99 Date: 11/18/99
----------------------------- ------------------------------
Address: Address:
1200 12/th/ Avenue South 10230 NE Points Drive
Seattle, WA 98144 Kirkland, WA 98033
-4-
<PAGE>
EXHIBIT 10.38
Confidential Treatment Requested
INTERACTIVE MARKETING AGREEMENT
-------------------------------
This Interactive Marketing Agreement (the "Agreement"), dated as of
February 15, 2000 (the "Effective Date"), is between America Online, Inc.
("AOL"), a Delaware corporation, with offices at 22000 AOL Way, Dulles, Virginia
20166, and HomeGrocer.com, Inc. ("Marketing Partner" or "MP") a Delaware
corporation, with offices at 10230 NE Points Drive, Kirkland, WA 98033-7879.
AOL and MP may be referred to individually as a "Party" and collectively as the
"Parties."
INTRODUCTION
------------
AOL and MP each desires to enter into an interactive marketing relationship
whereby AOL will promote and distribute an interactive site referred to (and
further defined) herein as the Affiliated MP Site (as defined in Section 2.1).
This relationship is further described below and is subject to the terms and
conditions set forth in this Agreement. Defined terms used but not defined in
the body of the Agreement will be as defined on Exhibit B attached hereto.
---------
TERMS
-----
1. PROMOTION, DISTRIBUTION AND MARKETING.
-------------------------------------
1.1. AOL Promotion of Affiliated MP Site.
-----------------------------------
1.1.1. AOL will provide MP with the promotions (the "Promotions")
described on Exhibit A attached hereto for the Affiliated MP
---------
Site (as defined in Section 2.1). Subject to MP's reasonable
approval, AOL will have the right to fulfill its promotional
commitments with respect to any of the foregoing by providing
MP comparable promotional placements in appropriate
alternative areas of the AOL Network. In addition, if AOL is
unable to deliver any particular Promotion, AOL will work
with MP to provide MP a comparable promotional placement. AOL
reserves the right to redesign or modify the organization,
structure, "look and feel," navigation and other elements of
the AOL Network at any time. In the event such modifications
materially and adversely affect any specific Promotion, AOL
will work with MP to provide MP, as its sole remedy, a
comparable promotional placement. As used throughout this
Agreement, the phrases "comparable promotional placements" or
"comparable promotions" shall mean placements which are of
comparable overall value, to be determined based on a variety
of factors, including size, quality, type (e.g., integrated
or banner), location (i.e., page or screen and the subject
matter thereof), demographically and geographically targeted
relevance, and audience reach (taking into account the
targeted nature of the placement). If the parties disagree
about whether any substitute promotional placements are
"comparable," either party may invoke the dispute resolution
procedures set forth in Section 7.
1.1.2. AOL shall use commercially reasonable efforts to enable
additional advertising slots in relevant channels on the AOL
Network for geo-targeted advertising to the local geographic
markets in which MP provides the Exclusive Product; provided,
however, that nothing herein shall require AOL to
specifically create such areas.
1.1.3. As soon as available and in all events by not later than the
second anniversary of the Effective Date (or such later date
as the parties may agree), AOL shall provide to MP an anchor
tenancy in a relevant department/commerce center of
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
<PAGE>
AOL's Shop@AOL shopping area (or its successor). AOL shall
provide MP with 90 days' written notice of an anchor tenancy
becoming available.
1.1.4. Within thirty (30) days following the Effective Date, the
Parties shall meet to review the Carriage Plan and devise a
switching matrix pursuant to which MP shall be permitted to
switch Promotions no more often than monthly for other
inventory which becomes available on the AOL Network;
provided, however, that all switching of Promotions shall be
subject to inventory availability and AOL's reasonable
approval. At the meeting the Parties shall, among other
things, make good faith efforts to establish minimum levels
of Impressions by Designated Exclusivity Area in order to
maintain exclusivity in such Designated Exclusivity Area,
and, in addition, shall revise the carriage plan to increase
geo-targeted Impressions (taking into account relative value
and the switching matrix) including allocation from Digital
City local sales force, establish future allocation for an
anchor tenancy in Shop@AOL as required under Section 1.1.3,
and reallocate the overallotment of Impressions in Calendar
and a possible reallocation of what may be an overallotment
of Impressions in Oxygen Cable.
1.2. Impressions Commitment. During the Term, AOL shall deliver a minimum
----------------------
of [***] Impressions which link to the Co-Branded Entry Page through
the Promotions in accordance with Exhibit A and the timelines set
------- -
forth therein (the "Impressions Commitment"). The Impressions targets
specified on Exhibit A are the minimum amount of Impressions to be
---------
provided by AOL. The parties will determine annually, beginning
March 1, 2001, whether the actual Impressions targets for the
immediately preceding year were met, and any shortfall in Impressions
at the end of any year during the Term will not be deemed a breach of
the Agreement by AOL so long as AOL promptly takes commercially
reasonable action to remedy the situation with comparable Impressions.
If a significant shortfall continues after six (6) months, either
party may invoke the dispute resolution procedures set forth in
Section 7 to fashion a strategy reasonably acceptable to MP to
alleviate such continuing significant shortfall. In the event there is
a shortfall in Impressions as of the end of the Term (a "Final
Shortfall"), AOL will, within ninety days of the end of the Term,
provide MP with Impressions equal in number to the Final Shortfall
(the "Final Makegood"); provided, however, that, if the Final
Shortfall is equal to a number of Impressions which is more than [***]
percent ([***]%) of the total Impressions to be delivered hereunder in
that year, then, upon written notice delivered to AOL within five (5)
days of the end of the Term, MP shall be entitled to receive in lieu
of the Final Makegood, a refund of the Payment, calculated in
accordance with the Pro-Rata Refund Formula. The Parties agree that in
each year during the term of this Agreement [***] percent ([***]%) of
the Impressions will be for the Exclusive Product and not more than
[***] percent ([***]%) of the Impressions may include references to MP
Products other than traditional grocery store products.
1.3. Content of Promotions. The Promotions will link only to the Co-
---------------------
Branded Entry Page and will promote only the Exclusive Product and
not more than [***] percent ([***]%) of the Promotions each year
shall promote MP Products other than everyday grocery products and
services. The specific MP Content to be contained within the
Promotions described in this Agreement (the "Promo Content") will be
determined by MP, subject to AOL's technical limitations, the terms
of this Agreement and AOL's then-applicable policies relating to
advertising and promotions (the "Ad Policies"); provided, however,
that MP shall have ninety (90) days from written notice of any new Ad
Policy to comply and provided, further that if MP's compliance with
such new Ad Policy is not technically feasible or commercially
reasonable, AOL shall either waive such new Ad Policy for MP or
provide MP with an equitable remedy to alleviate the effect of such
new Ad Policy. In the event that the Parties are unable to agree on
an equitable remedy, the matter shall be
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
2
<PAGE>
submitted to the Management Committee for resolution in accordance
with dispute resolution procedures set forth in Section 7 of this
Agreement. MP will submit in advance to AOL for its review a
quarterly online marketing plan with respect to the Affiliated MP
Site. The Parties will meet in person or by telephone at least
monthly to review operations and performance hereunder, including a
review of the Promo Content to ensure that it is designed to maximize
performance. MP will periodically update the Promo Content. Except to
the extent expressly described herein, the specific form, placement,
duration and nature of the Promotions will be as determined by AOL in
its reasonable editorial discretion (consistent with the editorial
composition of the applicable screens). Either Party may invoke the
dispute resolution procedures of Section 7 in the event that the
requirements of this Section 1.3 materially adversely affect the
rights of such Party under this Agreement.
1.4. MP Promotion of Affiliated MP Site and AOL. As set forth in fuller
------------------------------------------
detail in Exhibit C, MP will promote AOL and the availability of the
---------
Affiliated MP Site through the AOL Network. MP will not implement or
authorize any promotion that is substantially similar (including,
without limitation, in scope, purpose, amount, prominence or
regularity) to the promotion required or provided pursuant to Exhibit
-------
C for any other Interactive Service on terms more favorable than
-
those provided herein.
2. AFFILIATED MP SITE.
------------------
2.1. Creation of Affiliated MP Site. MP will create a customized start
------------------------------
page to which the Promotions shall link (the "Co-Branded Entry Page")
(to the extent consistent with the terms hereof), including distinct
versions of the Co-Branded Entry Page for each applicable property of
the AOL Network as set forth below (e.g., one for linking from the
AOL Service which is co-branded with the AOL brand, one for linking
from the CompuServe Service which is co-branded with the CompuServe
brand, etc.). Such Co-Branded Entry Page shall serve as the start
page for an Interactive Site of MP which conforms to the requirements
set forth herein (the "Affiliated MP Site"). MP will use commercially
reasonable efforts to include certain distinct Content within each
such distinct version of the Co-Branded Entry Page, tailored and
targeted to the applicable audience as mutually agreed (the "Brand
Specific Content"). On the Co-Branded Entry Page, MP will comply with
AOL's and its affiliates' then generally applicable customization
standards and design guideline templates for each property with
respect to headers, footers, co-branding and URLs, by way of example
as set forth on Exhibit H attached hereto. The Parties agree that the
---------
Co-Branded Entry Page shall reside on a joint URL structured in a
manner to provide MP with user and unique visitor credit. Internal
pages within the Affiliated MP Site shall reside on a joint URL
structured in a manner to provide AOL with credit for time spent on
the Affiliated MP Site, which shall nonetheless be owned by MP. The
Co-Branded Entry Page shall have AOL or AOL affiliate branded headers
and footers. AOL shall have the right to change or modify its design
guideline templates and co-branding requirements during the Terms, to
conform to general changes made to the AOL Network or portions
thereof. In the event that MP desires to add such tools to the
Affiliated MP Site, MP will consider in good faith the integration
of, and may with AOL's consent integrate, AOL's tools and technology
for chat, message boards, Quick Checkout, Shopping Cart and Search,
plus such other tools and technology as the Parties may further
mutually agree, so long as the integration of such tools and
technology is technically feasible and commercially reasonable and
does not adversely affect the shopping experience. If the Parties
cannot agree on any of these matters, either Party may invoke the
dispute resolution procedures set forth in Section 7.
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
3
<PAGE>
2.2. Content. MP will make available through the Affiliated MP Site the
-------
comprehensive offering of Products and related Content described on
Exhibit D (the "MP Products"). Except as mutually agreed in writing
---------
by the Parties, the Affiliated MP Site will contain the MP Products
and will not contain more than [***]% of products and services other
than everyday grocery products and services. All sales of Products
through the Affiliated MP Site will be conducted through a direct
sales format; MP will not promote, sell, offer or otherwise
distribute any products through any format other than a direct sales
format (e.g., through auctions or clubs) without the prior written
consent of AOL; provided, however, that MP may use a third-party for
back-end fulfillment. MP will review, delete, edit, create, update
and otherwise manage all Content available on or through the
Affiliated MP Site in accordance with the terms of this Agreement. MP
will ensure that the Affiliated MP Site does not in any respect
promote or advertise, market or distribute the products, services or
content of (x) any other Interactive Service, or (y) solely with
respect to the Co-Branded Entry Page, any entity that is in direct
competition with any third party with which AOL has an exclusive or
premier relationship (provided that AOL has given written notice to
MP of such third party and the exclusive or premier relationship that
AOL has with such third party). MP may offer any material
functionality (e.g. instant messaging, calendar, decision guides) on
its Affiliated MP Site, even if such functionality is reasonably
deemed to be competitive with a material functionality offered by or
on behalf of AOL on the AOL Network, so long as in connection
therewith there is no attribution or link to an Interactive Service,
provided further that MP shall offer no functionality which requires
a user to register with another Interactive Service. If the parties
cannot agree on any matter described in this subsection, either party
may invoke the dispute resolution procedures of Section 7.
2.3. Production Work. Except as agreed to in writing by the Parties
---------------
pursuant to the "Production Work" section of the Standard Online
Commerce Terms & Conditions attached hereto as Exhibit F, MP will be
---------
responsible for all production work associated with the Affiliated MP
Site, including all of MP's related costs and expenses.
2.4. Technology. AOL will be entitled to require reasonable changes to the
----------
Content (including, without limitation, the features or
functionality) within the Affiliated MP Site to the extent such
Content will, in AOL's good faith judgment, adversely affect any
technological operational aspect of the AOL Network. AOL reserves the
right to review and test the Affiliated MP Site from time to time to
determine whether the site is compatible with AOL's then-available
client and host software and the AOL Network.
2.5. Product Offering. MP will use commercially reasonable efforts to
----------------
ensure that the Affiliated MP Site includes generally all of the
Products and other Content (including, without limitation, any
features, offers, contests, functionality or technology) that are
then made available by or on behalf of MP through the MP Interactive
Site for the same geographical area; provided, however, that such
inclusion will not be required where it is commercially or
technically impractical (e.g., inclusion would cause either Party to
incur substantial incremental costs), and not more that [***] percent
([***]%) of the Products shall be other than everyday grocery items.
2.6. Pricing and Terms. MP will ensure that: (i) the prices (and any
-----------------
other required consideration) for Products in the Affiliated MP Site
do not exceed the prices for the Products or substantially similar
Products offered by or on behalf of MP through the MP Interactive
Site for the same geographical area during the same time period; and
(ii) the terms and conditions related to Products in the Affiliated
MP Site are no less favorable in any respect to the terms and
conditions for the Products or substantially similar Products offered
by or on behalf of MP through the primary MP Interactive Site for the
same geographical area during the same time period; and (iii) the
prices in the aggregate for
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
4
<PAGE>
MP's top [***] grocery Products shall be no higher than [***] percent
([***]%) above of the prices of such Products offered by any MP
Competitor through any Interactive Site for sale in the same
geographic area during the same time period.
2.7. Exclusive AOL Offers/Member Benefits. MP will generally promote
------------------------------------
through the Affiliated MP Site any special or promotional offers made
available by or on behalf of MP through any Additional MP Channel. In
addition, MP shall promote through the Affiliated MP Site on a
regular and consistent basis special offers (which, from time to
time, shall be exclusive to AOL Users) available to AOL Users (the
"AOL Offers") equal to or better than any other special offer
available to non-AOL users. MP shall, at all times, feature at least
one AOL Offer for at least first time AOL Users. The AOL Offer made
available by MP shall provide a substantial member benefit to AOL
Users, either by virtue of a meaningful price discount, product
enhancement, unique service benefit or other special feature.
Specific AOL Offers that may be made available by MP include the AOL
Offers listed on Exhibit D-1 attached hereto. MP will provide AOL
-----------
with reasonable prior notice of AOL Offers so that AOL can market the
availability of such AOL Offers in the manner AOL deems appropriate
in its editorial discretion.
2.8. Operating Standards. MP will ensure that the Affiliated MP Site
-------------------
complies in all material respects and at all times with the standards
set forth in Exhibit E within a commercially reasonable amount of
---------
time. To the extent operating site standards are not established in
Exhibit E with respect to any aspect or portion of the Affiliated MP
---------
Site (or the Products or other Content contained therein), MP will
provide such aspect or portion of operating standards which meets or
exceeds prevailing standards in the online grocery industry. In the
event AOL determines that MP has failed to comply with the material
technical requirements of this Section 2.8 AOL will have the right
(in addition to any other remedies available to AOL hereunder), after
providing MP with advance notice, to decrease the promotion it
provides to MP hereunder until such time as MP corrects its non-
compliance (and in such event, if such failure to comply shall last
for more than five (5) days, AOL will be relieved of the
proportionate amount of any promotional commitment made to MP by AOL
hereunder corresponding to such decrease in promotion) and any
revenue threshold(s) set forth in Section 4 will each be adjusted
proportionately to correspond to such decrease in promotion during
the period of non-compliance. MP may invoke the dispute resolution
procedures of Section 7 in the event that it reasonably believes that
the Affiliated MP Site meets the applicable standards, AOL has acted
unjustly, or AOL has adversely affected MP's rights hereunder. AOL
shall not be permitted to decrease the promotion for MP's failure to
comply with the requirements of Section 1 of Exhibit E, if MP has
invoked the dispute resolution procedures of Section 7.
2.9. Advertising Sales. In the event that MP decides to designate
-----------------
advertising inventory on the Affiliated MP Site, MP will offer AOL
the opportunity to present its proposal for selling such inventory.
2.10. Traffic Flow. MP will take commercially reasonable efforts to
------------
ensure that AOL traffic is either kept within the Affiliated MP Site
or is channeled back into the AOL Network (with the exception of
advertising links sold and implemented pursuant to the Agreement)
through a "return to AOL" button at checkout, the "back" button on an
Internet browser, and/or the AOL control bar. In the event that AOL
points to the Co-Branded Entry Page or any other MP Interactive Site
or otherwise delivers traffic to such site hereunder, MP will channel
back to the AOL Network from such site, whether through a particular
pointer or link, the "back" button on an Internet browser, the
closing of an active window, or any other return mechanism.
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
5
<PAGE>
3. AOL EXCLUSIVITY OBLIGATIONS During the Term, except as otherwise provided
---------------------------
herein, AOL shall not promote any MP Competitor or the Exclusive Product in
the Designated Exclusivity Areas. For the purposes of this Agreement,
"Exclusive Product" shall mean the service of online ordering from an
Online Grocer, for delivery (directly or through a third-party) or pick-up,
of everyday grocery items assembled for the customer. For purposes of this
Agreement, the term "Online Grocer" shall mean any entity that offers the
online ordering of and whose primary business is the sale or delivery of, a
comprehensive range of everyday grocery items, regardless of whether such
entity offers such grocery items solely online or as ancillary to its
traditional bricks-and-mortar grocery or convenience food store business;
provided however, that in no event shall "Online Grocer" include any entity
(i) with a [***], provided that this exception shall not except a [***]
business or an [***] from the definition of "Online Grocer", (ii) who
offers only a [***], or (iii) that provides predominantly a [***]. As part
of the exclusivity, AOL shall not itself or through any agent use any part
of the Designated Exclusivity Areas to market or promote the Exclusive
Product. Notwithstanding anything to the contrary in this Section 3 (and
without limiting any actions which may be taken by AOL without violation of
MP's rights hereunder), no provision of this Agreement will limit AOL's
ability (on or off the AOL Network) to (i) undertake activities or perform
duties pursuant to existing arrangements with third parties, provided,
however, that the Impressions delivered pursuant to any such arrangement
with any MP Competitor or as part of the marketing of the Exclusive Product
by any other Online Grocer shall reduce the number of Impressions permitted
under Section 3.2.1 below (or pursuant to any agreements to which AOL
becomes a party subsequent to the Effective Date as a result of Change of
Control, merger, acquisition or other similar transaction), (ii) create
editorial content relating to any third party marketer of the Exclusive
Product (but shall not sell contextual links to any marketer of the
Exclusive Product except in accordance with this Agreement) or (iii) offer
information relating to marketers of the Exclusive Product on any yellow
pages, white pages, classifieds or other search, directory or review
services or Content or similar service. In addition, to the extent that any
third party does not solely [***], AOL will not be restricted from
promoting such party (on or off the AOL Network), so long as such
promotions do not, [***], expressly [***] or allow a [***]. Notwithstanding
any provision of this Agreement to the contrary:
3.1. The delivery services for the following types of products shall not
be deemed to be "Exclusive Product" except when sold, delivered,
offered or promoted by MP Competitors: (i) delivery of [***]; (ii)
delivery services where the [***] is not the [***]; (iii) delivery
services where the [***] is not the delivery of the [***]; (iv)
delivery of [***]; or (v) delivery of [***]; and
3.2. AOL may sell promotions mentioning the Exclusive Product of any
traditional bricks-and-mortar grocer or convenience food store
("Traditional Grocer Exclusive Product Promotions") so long as such
Traditional Grocer Exclusive Product Promotions do not promote any MP
Competitor and provided that:
3.2.1. Traditional Grocer Exclusive Product Promotions shall
constitute no more than [***] Impressions in the aggregate
during the Term; and (a) in the national market, in any year
total Traditional Grocer Exclusive Product Promotions shall
not exceed the "Permitted National Market Carve-out Amount";
for these purposes, the "Permitted National Market Carve-out
Amount" shall equal [***] percent ([***]%) of the Impressions
Commitment in the national market for that year; and (b) in
any local markets where MP provides the Exclusive Product,
Traditional Grocer Exclusive Product Promotions shall not
exceed in any year the "Permitted Local Market Carve-out
Amount"; for these purposes, the "Permitted Local Market
Carve-out Amount" shall equal [***] percent ([***]%) of the
Impressions Commitment in that local market for that year;
and
3.2.2. AOL agrees to [***], in consideration of its [***] permitted
under this Section 3.2.
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
6
<PAGE>
4. PAYMENTS.
--------
4.1.1. Payment. Subject to Sections 4.1.2, 4.1.3, 4.1.4 and 6 below,
-------
in consideration of AOL's obligations hereunder including
without limitation the delivery of the Impressions, MP will
pay AOL a payment (the "Payment") equal to Sixty Million
Dollars ($60,000,000) in the aggregate as follows:
4.1.1.1. [***] Dollars ($[***]) payable on [***];
4.1.1.2. [***] Dollars ($[***]) on each of [***], [***], and
[***]; and
4.1.1.3. [***] Dollars (US $[***]) on each of [***], [***],
[***], [***], [***], [***], [***], [***], [***],
[***], [***], [***], [***], and [***].
4.1.2. Early Termination of Exclusivity.
--------------------------------
4.1.2.1. Twenty Fourth Month. AOL shall be entitled, on the
-------------------
later of (x) March 1, 2002, or (y) the date on which
a total of [***] billion Impressions have been
delivered under this Agreement (the "First
Exclusivity Termination Date"), to terminate its
exclusivity obligations set forth in Section 3 of
this Agreement solely with respect to Traditional
Grocer Exclusive Product Promotions by providing MP,
not later than six (6) months prior to March 1,
2002, with written notice of its election to
terminate such exclusivity. In the event that AOL
elects to terminate its exclusivity obligations
under this Agreement in accordance with this Section
4.1.2.1, all payments due by MP pursuant to Section
4.1.1 on or after March 1, 2002, shall be reduced to
[***], and the Impressions Commitment shall be
increased by [***] comparable Impressions to be
delivered over the remainder of the Term; provided,
however, that all requirements of AOL pursuant to
Section 3.2 of this Agreement shall terminate as of
the First Exclusivity Termination Date.
4.1.2.2. Thirtieth Month. Notwithstanding any provision of
---------------
Section 3 of this Agreement to the contrary, AOL
shall be entitled as of September 1, 2002 to promote
any marketer of the Exclusive Product, including
without limitation any MP Competitor in any local
market in which MP has neither established local-
based offerings of the Exclusive Product ("Local
Offerings") nor notified AOL that it intends to
establish Local Offerings in such local market (a
"Fifteen Month Notice"). Following receipt of a
Fifteen Month Notice, AOL shall, within three months
of receipt of such Fifteen Month Notice, discontinue
any local promotions for marketers of the Exclusive
Product (unless otherwise permitted under this
Agreement, including without limitation, pursuant to
Section 3.2). In the event that MP has failed, as of
a date which is fifteen months after AOL's receipt
of such Fifteen Month Notice (the "Fifteen Month
Date"), to establish Local Offerings in the local
market which is the subject of such Fifteen Month
Notice, AOL shall be entitled to promote any
marketer of the Exclusive Product, including without
limitation, any MP Competitor, in such local
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
7
<PAGE>
market until the later of (a) nine months from the
Fifteen Month Date or (b) the date on which MP
establishes Local Offerings in such local market.
4.1.2.3. Thirty Sixth Month. In addition to the rights
------------------
granted to AOL pursuant to Sections 4.1.2.1 or
4.1.2.2 above, in the event that MP is not then one
of the top [***] marketers of the Exclusive Product
in at least [***] of the [***] Performance Criteria,
AOL shall be entitled, on the later of (x) March 1,
2003, or (y) the date on which [***] Impressions are
delivered under this Agreement (the "Second
Exclusivity Termination Date"), to terminate its
exclusivity obligations set forth in Section 3 of
this Agreement by providing MP with written notice
of its election to terminate such exclusivity by not
later than six (6) months prior to March 1, 2003. In
the event AOL terminates its exclusivity obligations
in accordance with this Section 4.1.2.3, and MP does
not exercise its right to terminate the Agreement as
set forth below, then all payments due by MP
pursuant to Section 4.1.1 on or after March 1, 2003,
shall be reduced to [***], if AOL has not exercised
its exclusivity termination option granted pursuant
to Section 4.1.2.1 above. In addition, in the event
AOL terminates its exclusivity obligations in
accordance with this Section 4.1.2.3, MP shall have
the right to terminate the Agreement, and, upon MP's
exercise of such right to terminate this Agreement,
(x) AOL shall refund and pay to MP, within 30 days
of MP's notice of termination, a refund calculated
in accordance with the Pro-Rata Refund Formula; and
(y) MP shall have no obligation to make any of the
payments due on or after March 1, 2003, pursuant to
Section 4.1.1.
4.2. Payment by MP of Bounty. During each year of the Term, MP shall pay
-----------------------
AOL a bounty according to the schedule below for each new AOL
Purchaser during such year:
<TABLE>
<CAPTION>
Year 1 Goal Bounty Year 2 Goal Bounty
<S> <C> <C> <C>
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***]
<CAPTION>
Year 3 Goal Bounty Year 4 Goal Bounty
<S> <C> <C> <C>
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***]
[***]
</TABLE>
Year 5 Goal Bounty
[***] [***]
[***] [***]
[***] [***]
[***]
4.3. Late Payments; Wired Payments. All amounts owed hereunder not paid
-----------------------------
when due and payable will bear interest from the date such amounts
are due and payable at the prime rate as set forth in the Wall Street
Journal in effect at such time. All payments required to be paid to
AOL hereunder will be paid in immediately available, non-refundable
U.S. funds wired to the "America Online" account, [***]. All payments
required to be paid to MP hereunder will be paid in immediately
available, non-refundable U.S. funds wired to the account of
HomeGrocer.com at [***].
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
8
<PAGE>
4.4. Auditing Rights. Each Party will maintain complete, clear and
---------------
accurate records of all expenses, revenues and fees in connection
with the performance of this Agreement. For the sole purpose of
ensuring compliance with this Agreement, each Party (or its
representative) will have the right on an annual basis to have a
third-party accounting firm reasonably acceptable to the Party being
audited (the "Audit Party") conduct a reasonable and necessary
inspection limited to the portions of the books and records of the
Audit Party which are relevant to such Audit Party's performance
pursuant to this Agreement. Any such audit may be conducted after
twenty (20) business days' prior written notice to the other Party.
The Party requesting the audit (the "Requesting Party") shall bear
the expense of any audit conducted pursuant to this Section 4.4,
unless such audit shows an error in the Requesting Party's favor
amounting to a deficiency to the Requesting Party in excess of five
percent (5%) of the actual amounts paid and/or payable to such Party
hereunder, in which event the Audit Party shall bear the reasonable
expenses of the audit. If any payment deficiency is discovered,
during an audit or otherwise, the Party owing the deficient payment
shall pay the deficient amount to the Party owed such amount within
thirty (30) days after receipt of notice thereof.
4.5. Taxes. MP will collect and pay and indemnify, and hold AOL harmless
-----
from, any sales, use, excise, import or export value added or similar
tax or duty including any penalties and interest, as well as any
costs associated with the collection or withholding thereof,
including attorneys' fees, which arises out of the sale or any other
transaction between MP and any other party (other than AOL) or which
is based on MP's net income. Likewise, AOL will collect and pay and
indemnify, and hold MP harmless from, any sales, use, excise, import
or export value added or similar tax or duty including any penalties
and interest, as well as any costs associated with the collection or
withholding thereof, including attorneys' fees, which arises out of
the sale or any other transaction between AOL and any other party
(other than MP) or which is based on AOL's net income.
4.6. Reports.
-------
4.6.1. Sales Reports. MP will provide AOL in an automated manner
-------------
with a monthly report in an AOL-designated format, detailing
the following activity in such period (and any other
information mutually agreed upon by the Parties or reasonably
required for measuring activity at the Co-Branded Entry
Page): summary sales information by day (date and total
number of AOL Purchasers for such day, total new AOL
Purchasers by day and total revenue for such
day)(collectively, the "Sales Reports"). AOL will be entitled
to use the Sales Reports in its own internal business
operations, subject to the terms of this Agreement, but
agrees to protect such information as Confidential
Information.
4.6.2. Usage Reports. At least once a month, AOL shall provide MP
-------------
with standard usage information related to the Promotions
(e.g. a schedule of the Impressions delivered by AOL at such
time) which is similar in substance and form to the reports
provided by AOL to other interactive marketing partners
similar to MP. MP acknowledges that such information may be
Confidential Information as defined herein.
4.6.3. Fraudulent Transactions. To the extent permitted by
-----------------------
applicable laws, MP will provide AOL with an prompt report of
any fraudulent order, including the date, screenname or email
address and amount associated with such order, promptly
following MP obtaining knowledge that the order is, in fact,
fraudulent.
5. [INTENTIONALLY DELETED]
---------------------
9
<PAGE>
6. TERM; AFTER EXPIRATION OF TERM; TERMINATION.
-------------------------------------------
6.1. Term. Unless earlier terminated as set forth herein, the term of
-----
this Agreement will be five years from the Effective Date (the
"Term").
6.2. After Expiration of Term. Upon the expiration of Term (as opposed to
------------------------
termination), AOL has the right to continue the link to the
Affiliated MP Site for an additional one-year period upon written
notice to MP, with the right to renew for two (2) additional one-year
terms upon written notice to MP. MP shall pay AOL a [***] ($[***])
dollar bounty for new AOL Purchasers generated during any such
extended period and shall have no other payments obligations
hereunder to AOL. MP will pay all of the foregoing amounts on a
quarterly basis within thirty (30) days following the end of the
quarter in which the applicable bounties were generated.
6.3. [intentionally deleted].
---------------------
6.4. Termination for Breach. Except as expressly provided elsewhere in
----------------------
this Agreement, either Party may terminate this Agreement at any time
in the event of a material breach of the Agreement by the other Party
which remains uncured after thirty (30) days written notice thereof
to the other Party (or such shorter period as may be specified
elsewhere in this Agreement); provided that if MP fails to make any
payment required under Section 4.1.1, AOL will provide notice to MP
of MP's failure and the cure period with respect to any scheduled
payment will be twelve (12) days from the date of such notice. In the
event this Agreement is terminated, any payment obligations accrued
prior to termination will survive the termination of this Agreement,
and, except to the extent expressly set forth to the contrary in this
Agreement, the parties shall be relieved of all other payment
obligations, provided, however, that nothing herein shall affect any
Party's right to damages as a result of the other Party's breach. If
this Agreement is terminated by MP under this provision, MP shall be
entitled to a refund calculated in accordance with the Pro-Rata
Refund Formula.
6.5. Termination for Bankruptcy/Insolvency. Subject to existing
-------------------------------------
bankruptcy laws, either Party may terminate this Agreement
immediately following written notice to the other Party if the other
Party (i) ceases to do business in the normal course, (ii) becomes or
is declared insolvent or bankrupt, (iii) is the subject of any
proceeding related to its liquidation or insolvency (whether
voluntary or involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
6.6. Termination on Change of Control.
--------------------------------
6.6.1. In the event of a Change of Control of MP resulting in
control of MP by an Interactive Service, AOL may terminate
this Agreement by providing thirty (30) days prior written
notice of such intent to terminate.
6.6.2. In the event of a Change of Control of AOL resulting in
control of AOL by an MP Competitor, MP may terminate this
Agreement by providing thirty (30) days prior written notice
of such intent to terminate.
6.7. Press Releases. Each Party will submit to the other Party, for its
---------------
prior written approval, which will not be unreasonably withheld or
delayed, any press release or any other public statement ("Press
Release") regarding the transactions contemplated hereunder.
Notwithstanding the foregoing, either Party may, if and to the extent
required by law, issue Press Releases and other disclosures without
the consent of the other Party so
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
10
<PAGE>
long as the disclosing Party provides at least five (5) business days
prior written notice of such disclosure. The failure by one Party to
obtain the prior written approval of the other Party prior to issuing
a Press Release (except as and to the extent required by law) shall
be deemed a material breach of this Agreement. Because it would be
difficult to precisely ascertain the extent of the injury caused to
the non-breaching party, in the event of such material breach, the
non-breach party may elect as its sole remedy to either (a) terminate
this Agreement immediately upon notice to the other Party, or (b) as
liquidated damages, elect to modify the Impression Commitment
hereunder by [***] percent ([***]%) (either an increase in
Impressions if AOL has materially breached the Agreement or a
decrease in Impressions if MP has materially breached the Agreement).
The Parties agree that the liquidated damages set forth are a
reasonable approximation of the injury that would be suffered by the
non-breaching Party.
7. MANAGEMENT COMMITTEE/ARBITRATION.
--------------------------------
7.1. Management Committee. The Parties will act in good faith and use
--------------------
commercially reasonable efforts to promptly resolve any claim,
dispute, claim, controversy or disagreement (each a "Dispute")
between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this Agreement
or any document executed pursuant to this Agreement or any of the
transactions contemplated hereby. If the Parties cannot promptly
resolve any such Dispute, either party may submit the dispute to the
"Management Committee" for resolution. The Management Committee shall
initially consist of MP's Senior Vice President of Marketing, Jon
Landers, and AOL's President of Marketing, David M. Colburn. At the
parties' earliest convenience and by not later than 10 days after the
request for dispute resolution, the Management Committee shall
convene at a mutually acceptable location or telephonically, and
shall have the exclusive right for the following ten (10) days to
resolve such Dispute; provided further that the Management Committee
will have the final and exclusive right to resolve Disputes arising
from any provision of the Agreement which expressly or implicitly
provides for the Parties to reach mutual agreement as to certain
terms. If the Management Committee is unable to amicably resolve the
Dispute during such ten-day period, then the Management Committee
will consider in good faith the possibility of retaining a third
party mediator to facilitate resolution of the Dispute. In the event
the Management Committee elects not to retain a mediator within the
five (5) days immediately following the dead-lock, the dispute will
be subject to the resolution mechanisms described below. Neither
Party will seek, nor will be entitled to seek, binding outside
resolution of the Dispute unless and until the Parties have sought
resolution of the Dispute by the Management Committee and have been
unable amicably to resolve the Dispute as set forth in this Section 7
and then, only in compliance with the procedures set forth in this
Section 7.
7.2. Arbitration. Except for Disputes relating to issues of (i)
------------
proprietary rights, including but not limited to intellectual
property and confidentiality, and (ii) any provision of the Agreement
which expressly or implicitly provides for the Parties to reach
mutual agreement as to certain terms (which will be resolved by the
Parties solely and exclusively through amicable resolution as set
forth in Section 7.1), any Dispute not resolved by amicable
resolution as set forth in Section 7.1 will be governed exclusively
and finally by arbitration. Such arbitration will be conducted by the
American Arbitration Association ("AAA") in Washington, D.C., or
Seattle, Washington, and will be initiated and conducted in
accordance with the Commercial Arbitration Rules ("Commercial Rules")
of the AAA, including the AAA Supplementary Procedures for Large
Complex Commercial Disputes ("Complex Procedures"), as such rules
will be in effect on the date of delivery of a demand for arbitration
("Demand"), except to the extent that such rules are inconsistent
with the provisions set forth herein. Notwithstanding the foregoing,
the Parties may agree
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
11
<PAGE>
in good faith that the Complex Procedures will not apply in order to
promote the efficient arbitration of Disputes where the nature of the
Dispute, including without limitation the amount in controversy, does
not justify the application of such procedures.
7.3. Selection of Arbitrators. The arbitration panel will consist of
-------------------------
three arbitrators. Each Party will name an arbitrator within ten (10)
days after the delivery of the Demand. The two arbitrators named by
the Parties may have prior relationships with the naming Party, which
in a judicial setting would be considered a conflict of interest. The
third arbitrator, selected by the first two, should be a neutral
participant, with no prior working relationship with either Party. If
the two arbitrators are unable to select a third arbitrator within
ten (10) days, a third neutral arbitrator will be appointed by the
AAA from the panel of commercial arbitrators of any of the AAA Large
and Complex Resolution Programs. If a vacancy in the arbitration
panel occurs after the hearings have commenced, the remaining
arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
7.4. Governing Law. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and
--------------
not state law, will govern the arbitrability of all Disputes. The
arbitrators will allow such discovery as is appropriate to the
purposes of arbitration in accomplishing a fair, speedy and cost-
effective resolution of the Disputes. The arbitrators will reference
the Federal Rules of Civil Procedure then in effect in setting the
scope and timing of discovery. The Federal Rules of Evidence will
apply in toto. The arbitrators may enter a default decision against
any Party who fails to participate in the arbitration proceedings.
7.5. Arbitration Awards. The arbitrators will have the authority to award
-------------------
compensatory damages only. Any award by the arbitrators will be
accompanied by a written opinion setting forth the findings of fact
and conclusions of law relied upon in reaching the decision. The
award rendered by the arbitrators will be final, binding and non-
appealable, and judgment upon such award may be entered by any court
of competent jurisdiction. The Parties agree that the existence,
conduct and content of any arbitration will be kept confidential and
no Party will disclose to any person any information about such
arbitration, except as may be required by law or by any governmental
authority or for financial reporting purposes in each Party's
financial statements.
7.6. Fees. Each Party will pay the fees of its own attorneys, expenses of
-----
witnesses and all other expenses and costs in connection with the
presentation of such Party's case (collectively, "Attorneys' Fees").
The remaining costs of the arbitration, including without limitation,
fees of the arbitrators, costs of records or transcripts and
administrative fees (collectively, "Arbitration Costs") will be borne
equally by the Parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award
Attorneys' Fees in those cases where fairness dictates a different
allocation of Arbitration Costs between the Parties and an award of
Attorneys' Fees to the prevailing Party as determined by the
arbitrators.
7.7. Non Arbitratable Disputes. Any Dispute that is not subject to final
--------------------------
resolution by the Management Committee or to arbitration under this
Section 7 or by law (collectively, "Non-Arbitration Claims") will be
brought in a court of competent jurisdiction in the Commonwealth of
Virginia or the State of Washington. Each Party irrevocably consents
to the non-exclusive jurisdiction of the courts of the Commonwealth
of Virginia and the federal courts situated in the Commonwealth of
Virginia, and of the courts of the State of Washington and the
federal courts situated in the State of Washington, over any and all
Non-Arbitration Claims and any and all actions to enforce such claims
or to recover damages or other relief in connection with such claims.
12
<PAGE>
8. NEW DELIVERY PLATFORMS; FURTHER DISCUSSIONS. In the event that AOL
-------------------------------------------
launches any new delivery platform other than standard narrow-band
platform, and at any time thereafter [***] percent ([***]%) or more of the
AOL Users uses the new delivery platform, then MP shall have the
opportunity to negotiate for promotions on the new delivery platform.
9. FURTHER ASSURANCES REGARDING LOCAL OFFERINGS. If MP has not established
--------------------------------------------
local based offerings of the Exclusive Product in a local market, and AOL
has identified a substantial AOL User demand for the Exclusive Product in
such market, then the Parties shall work together in good faith to develop
a plan to satisfy the needs of such AOL Users, which plan may include MP's
partnering with a local marketer of the Exclusive Product or the
establishment of a revenue sharing relationship.
10. NATIONAL OFFERING OF THE EXCLUSIVE PRODUCT. MP shall use commercially
------------------------------------------
reasonable efforts to offer the Exclusive Product on a national basis
within twelve (12) months from the Effective Date. In the event that MP is
unable to accomplish this objective, AOL may refer such matter to the
Management Committee in accordance with Section 7, in order to agree upon a
strategy to provide the Exclusive Product to AOL Users on a national basis.
11. STANDARD TERMS. The exhibits and schedules identified in and attached to
--------------
this Agreement (including without limitation the Standard Online Commerce
Terms & Conditions set forth on Exhibit F attached hereto and Standard
-------
Legal Terms & Conditions set forth on Exhibit G attached hereto) are each
---------
incorporated into this Agreement and are hereby made a part of this
Agreement. In the event of a conflict between the substantive provisions
set forth above in body of this Agreement (the "Substantive Agreement") and
the exhibits and schedules incorporated into this Agreement, the
Substantive Agreement shall control.
[Signature Page Follows]
13
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. HOMEGROCER.COM, INC.
By: /s/ Terry Drayton By: /s/ Eric Keller
------------------------------- -------------------------------
Name: Terry Drayton Name: Eric Keller
Title: President Title: Vice President, Business
Affairs
14
<PAGE>
EXHIBIT A
Placement/Promotion
-------------------
I. Attached Hereto.
II. During the Term, subject to the terms and conditions hereof, MP shall have
the right to use the following Keyword Search Terms: HomeGrocer.
15
<PAGE>
EXHIBIT B
Definitions
-----------
The following definitions will apply to this Agreement:
Additional MP Channel. Any other distribution channel (e.g., an Interactive
- ---------------------
Service other than AOL) through which MP makes available an offering comparable
in nature to the Affiliated MP Site
Advertising Sales Commission. Actual amounts paid as commission to third party
- ----------------------------
agencies by either buyer or seller in connection with sale of the Advertisement.
AOL Interactive Site. Any Interactive Site which is managed, maintained, owned
- --------------------
or controlled by AOL or its agents.
AOL Look and Feel. The elements of graphics, design, organization,
- ------------------
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementations thereof) which are generally associated
with Interactive Sites within the AOL Service or AOL.com.
AOL Member. Any authorized user of the AOL Service, including any sub-accounts
- ----------
using the AOL Service under an authorized master account.
AOL Network. (i) The AOL Service, (ii) AOL.com, (iii) CompuServe, (iv) Digital
- -----------
City, (v) Netcenter, (vi) MovieFone, and (vii) any other product or service
owned, operated, distributed or authorized to be distributed by or through AOL
or its affiliates worldwide (and including those properties excluded from the
definitions of the AOL Service or AOL.com).
AOL Purchaser. Any person or entity who enters the Affiliated MP Site from the
- -------------
AOL Network including, without limitation, from any third party area therein (to
the extent entry from such third party area is traceable through both Parties'
commercially reasonable efforts), and generates Transaction Revenues (regardless
of whether such person or entity provides an e-mail address during registration
or entrance to the Affiliated MP Site which includes a domain other than an
"AOL.com" domain),
AOL Service. The standard narrow-band U.S. version of the America Online(R)
- -----------
brand service, specifically excluding (a) AOL.com, Netcenter or any other AOL
Interactive Site, (b) the international versions of an America Online service
(e.g., AOL Japan), (c) the CompuServe(R) brand service and any other CompuServe
products or services (d) "Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "Digital City," "NetMail(TM)," "Electra", "Thrive", "Real Fans",
"Love@AOL", "Entertainment Asylum," "AOL Hometown," "My News" or any similar
independent product, service or property which may be offered by, through or
with the U.S. version of the America Online(R) brand service, (e) any
programming or Content area offered by or through the U.S. version of the
America Online brand service over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), (f) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through the U.S. version of the America Online brand service, (g)
any property, feature, product or service which AOL or its affiliates may
acquire subsequent to the Effective Date and (h) any other version of an America
Online service which is materially different from the standard narrow-band U.S.
version of the America Online brand service, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded version of the service or any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer.
16
<PAGE>
AOL User. Any user of the AOL Service, AOL.com, CompuServe, Digital City,
- --------
Netcenter, or the AOL Network.
AOL.com. AOL's primary Internet-based Interactive Site marketed under the
- -------
"AOL.COM(TM)" brand, specifically excluding (a) the AOL Service, (b) Netcenter,
(c) any international versions of such site, (d) "ICQ," "AOL NetFind(TM)," "AOL
Instant Messenger(TM)," "NetMail(TM)," "AOL Hometown," "My News" or any similar
independent product or service offered by or through such site or any other AOL
Interactive Site, (e) any programming or Content area offered by or through such
site over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any programming or Content area offered by or through such
site which was operated, maintained or controlled by the former AOL Studios
division (e.g., Electra), (g) any yellow pages, white pages, classifieds or
other search, directory or review services or Content offered by or through such
site or any other AOL Interactive Site, (h) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective Date
and (i) any other version of an America Online Interactive Site which is
materially different from AOL's primary Internet-based Interactive Site marketed
under the "AOL.COM(TM)" brand, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any co-
branded versions or any version distributed through any broadband distribution
platform or through any platform or device other than a desktop personal
computer.
Change of Control. (a) The consummation of a reorganization, merger or
- -----------------
consolidation or sale or other disposition of substantially all of the assets of
a party or (b) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1933,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
CompuServe. The standard, narrow-band U.S. version of the CompuServe brand
- ----------
service, specifically excluding (a) any international versions of such service,
(b) any web-based service including "compuserve.com", "cserve.com" and "cs.com",
or any similar product or service offered by or through the U.S. version of the
CompuServe brand service, (c) Content areas owned, maintained or controlled by
CompuServe affiliates or any similar "sub-service," (d) any programming or
Content area offered by or through the U.S. version of the CompuServe brand
service over which CompuServe does not exercise complete or substantially
complete operational control (e.g., third-party Content areas), (e) any yellow
pages, white pages, classifieds or other search, directory or review services or
Content and (f) any co-branded or private label branded version of the U.S.
version of the CompuServe brand service, (g) any version of the U.S. version of
the CompuServe brand service which offers Content, distribution, services and/or
functionality materially different from the Content, distribution, services
and/or functionality associated with the standard, narrow-band U.S. version of
the CompuServe brand service, including, without limitation, any version of such
service distributed through any platform or device other than a desktop personal
computer and (h) any property, feature, product or service which CompuServe or
its affiliates may acquire subsequent to the Effective Date.
Confidential Information. Any information relating to or disclosed in the
- ------------------------
course of the Agreement, which is or should be reasonably understood to be
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members, AOL
Users, AOL Purchasers and MP customers, technical processes and formulas, source
codes, product designs, sales, cost and other unpublished financial information,
product and business plans, projections, and marketing data. "Confidential
Information" will not include information (a) already lawfully known to or
independently developed by the receiving Party, (b) disclosed in published
materials, (c) generally known to the public, or (d) lawfully obtained from any
third party.
17
<PAGE>
Content. Text, images, video, audio (including, without limitation, music used
- -------
in synchronism or timed relation with visual displays) and other data, Products,
advertisements, promotions, URLs, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
Designated Exclusivity Areas. Digital City, the AOL Service AOL.com, Netscape
- ----------------------------
Netcenter, MovieFone.com, Oxygen (but not Oxygen's non-online operations),
Shop@AOL, and CompuServe collectively and individually, as the context shall
require.
Digital City. The standard, narrow-band U.S. version of Digital City's local
- -------------
content offerings marketed under the Digital City(R) brand name, specifically
excluding (a) the AOL Service, AOL.com, Netcenter, or any other AOL Interactive
Site, (b) any international versions of such local content offerings, (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Electra", "Thrive", "Real Fans", "Love@AOL",
"Entertainment Asylum," "AOL Hometown," "My News" or any similar independent
product, service or property which may be offered by, through or with the
standard narrow band version of Digital City's local content offerings, (e) any
programming or Content area offered by or through such local content offerings
over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through such local content
offerings, (g) any property, feature, product or service which AOL or its
affiliates may acquire subsequent to the Effective Date, (h) any other version
of a Digital City local content offering which is materially different from the
narrow-band U.S. version of Digital City's local content offerings marketed
under the Digital City(R) brand name, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any co-
branded version of the offerings or any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer, and (i) Digital City- branded offerings in any local
area where such offerings are not owned or operationally controlled by America
Online, Inc. or DCI (e.g., Chicago, Orlando, South Florida, and Hampton Roads).
Impression. User exposure to the applicable Promotion, as such exposure may be
- ----------
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols which shall be consistent with then-applicable
industry standards.
Interactive Service. An entity offering one or more of the following: (i)
- -------------------
online or Internet connectivity services (e.g., an Internet service provider);
(ii) an interactive site or service featuring a broad selection of aggregated
third party interactive content (or navigation thereto) (e.g., an online service
or search and directory service) and/or marketing a broad selection of products
and/or services across numerous interactive commerce categories (e.g., an online
mall or other leading online commerce site); and (iii) communications software
capable of serving as the principal means through which a user creates, sends
and receives electronic mail or real time online messages.
Interactive Site. Any interactive site or area, including, by way of example and
- ----------------
without limitation, (i) an MP site on the World Wide Web portion of the Internet
or (ii) a channel or area delivered through a "push" product such as the
Pointcast Network or interactive environment such as Microsoft's Active Desktop.
Keyword Search Terms. (a) The Keyword(TM) online search terms made available
- --------------------
on the AOL Service, combining AOL's Keyword(TM) online search modifier with a
term or phrase specifically related to MP (and determined in accordance with the
terms of this Agreement), and (b) the Go Word online search terms made available
on CompuServe, combining CompuServe's Go Word online search modifier with a term
or phrase specifically related to MP and determined in accordance with the terms
of this Agreement).
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
18
<PAGE>
Licensed Content. All Content offered through the Affiliated MP Site pursuant
- ----------------
to this Agreement or otherwise provided by MP or its agents in connection
herewith (e.g., offline or online promotional Content, Promotions, AOL
"slideshows", etc.), including in each case, any modifications, upgrades,
updates, enhancements, and related documentation.
MovieFone.com. AOL's primary Internet-based Interactive Site marketed under the
- -------------
"MovieFone(TM)" brand, specifically excluding (a) the AOL Service, (b) AOL.com,
(c) any international versions of such site, (d) "ICQ," "AOL Netfind(TM)," "AOL
Instant Messenger(TM)," "NetMail(TM)," "AOL Hometown," "My News," "Digital
City(TM)," or any similar independent product or service offered by or through
such site or any other AOL Interactive Site, (e) any programming or Content area
offered by or through such site over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), (f) any programming or Content
area offered by or through the U.S. version of the America Online(R) brand
service which was operated, maintained or controlled by the former AOL Studios
division (e.g., Electra), (g) any yellow pages, white pages, classifieds or
other search, directory or review services or Content offered by or through such
site or any other AOL Interactive Site, (h) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective Date
and (i) any other version of an AOL or Netscape Communications Corporation
Interactive Site which is materially different from AOL's primary Internet-based
Interactive Site marketed under the "MovieFone(TM)" brand, by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded versions and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer.
MP Competitors. The entities listed on Exhibit B-1.
- -------------- -------
MP Interactive Site. Any Interactive Site (other than the Affiliated MP Site)
- -------------------
which is managed, maintained, owned or controlled by MP or its agents.
Net Transaction Revenues. Transaction Revenues minus the actual cost to MP of
- ------------------------
goods sold (i.e., the cost paid to MP's vendors for such goods, but not MP's
costs of selling such goods).
Netcenter. Netscape Communications Corporation's primary Internet-based
- ---------
Interactive Site marketed under the "Netscape Netcenter(TM)" brand, specifically
excluding (a) the AOL Service, (b) AOL.com, (c) any international versions of
such site, (d) "ICQ," "AOL Netfind(TM)," "AOL Instant Messenger(TM),"
"NetMail(TM)," "AOL Hometown," "My News," "Digital City(TM)," or any similar
independent product or service offered by or through such site or any other AOL
Interactive Site, (e) any programming or Content area offered by or through such
site over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any programming or Content area offered by or through the
U.S. version of the America Online(R) brand service which was operated,
maintained or controlled by the former AOL Studios division (e.g., Electra), (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such site or any other AOL Interactive
Site, (h) any property, feature, product or service which AOL or its affiliates
may acquire subsequent to the Effective Date and (i) any other version of an AOL
or Netscape Communications Corporation Interactive Site which is materially
different from Netscape Communications Corporation's primary Internet-based
Interactive Site marketed under the "Netscape Netcenter(TM)" brand, by virtue of
its branding, distribution, functionality, Content or services, including,
without limitation, any co-branded versions and any version distributed through
any broadband distribution platform or through any platform or device other than
a desktop personal computer (e.g. Custom NetCenters built specifically for third
parties).
Oxygen. Oxygen Media's Interactive Site customized for AOL Members, accessible
- ------
through the AOL Service, specifically excluding (a) any programming or Content
area offered by or through such site over
19
<PAGE>
which AOL does not have the exclusive right to sell all online advertising
inventory and (b) any other property of Oxygen Media other than its Internet
based properties.
Performance Criteria. [***] as measured by [***] (or its successor), [***] of
- --------------------
the online business, and [***] from online business. Unless MP is in the top
[***] marketers of the Exclusive Product in at least [***] of these categories,
AOL shall be entitled, in accordance with and as more particularly set forth in
the terms of Section 4.1.2.2 of the Agreement, to terminate the exclusivity.
Product. Any product, good or service which MP (or others acting on its behalf
- -------
or as distributors) offers, sells, provides, distributes or licenses to AOL
Users directly or indirectly through (i) the Affiliated MP Site (including
through any Interactive Site linked thereto), (ii) any MP Interactive Site
(including through any Interactive Site linked thereto), (iii) any other
electronic means directed at AOL Users (e.g., e-mail offers), or (iv) an
"offline" means (e.g., toll-free number) for receiving orders related to
specific offers within the Affiliated MP Site or any MP Interactive Site
requiring purchasers to reference a specific promotional identifier or tracking
code, including, without limitation, products sold through surcharged downloads
(to the extent expressly permitted hereunder).
Promotions. The promotions described on Exhibit A, any comparable promotions
- ----------- ---------
delivered by AOL in accordance with Section1.1, and any additional promotions of
the Affiliated MP Site provided by AOL (including, without limitation,
additional Keyword Search Terms and other navigational tools).
Pro-Rata Refund Formula. The pro rata refund shall equal the difference
- -----------------------
between (a) the total of the amounts which have actually been paid by MP to AOL
pursuant to Section 4.1 of this Agreement as of the date of termination of the
Agreement, and (b) the product of [***] multiplied by a fraction the numerator
of which shall be the number of Impressions actually delivered pursuant to the
Agreement up to the minimum amount required to be delivered for the applicable
period, and the denominator of which shall be the total number of Impressions
constituting the Impressions commitment.
Transaction Revenues. Aggregate amounts paid by AOL Purchasers in connection
- --------------------
with the sale, licensing, distribution or provision of any Products, including,
in each case, handling, shipping, service charges, and excluding, in each case,
(a) amounts collected for sales or use taxes or duties and (b) credits and
chargebacks for returned or canceled goods or services, but not excluding cost
of goods sold or any similar cost.
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
20
<PAGE>
EXHIBIT B-1
MP Competitors
[***]
From time to time MP shall have the right to add by name other online grocery
ordering and/or delivery services to such list, provided that (i) all additions
shall require the approval of AOL, which approval shall not be unreasonably
withheld, (ii) MP may add to such list no more than [***] once every [***] and
(iii) the addition of any entity shall have no effect on pre-existing
contractual obligations of AOL, so long as such contractual obligations were not
a breach of AOL's obligations under this Agreement.
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
21
<PAGE>
EXHIBIT C
MP Cross-Promotion
------------------
1. MP shall provide the following (collectively, the "AOL Promos"): (i) on the
Co-Branded Entry Page, a prominent promotional banner or button (at least
90 x 30 pixels in size) appearing "above the fold" on the Co-Branded Entry
Page, to promote such AOL products or services as AOL may designate (for
example, the America Online(R) brand service, the CompuServe(R) brand
service, the AOL.com(R) site, any of the Digital City services or the AOL
Instant Messenger(TM) service); and (ii) on the home page of the primary MP
Interactive Site, a prominent "Try AOL" button (at least 90 x 30 pixels in
size) through which users can obtain promotional information about AOL
products or services designated by AOL; and (iii) at AOL's option, MP will
provide a link on the Co-Branded Entry Page that allows AOL users to order
the then-current version of client software for such AOL products or
services. AOL will provide the creative content to be used in the AOL
Promos (including designation of links from such content to other content
pages), no more frequently than once per calendar quarter. MP shall post
(or update, as the case may be) the creative content supplied by AOL within
the spaces for the AOL Promos within ten (10) days of its receipt of such
content from AOL. Without limiting any other reporting obligations of the
Parties contained herein, MP shall provide AOL with monthly written reports
specifying the number of impressions to the pages containing the AOL Promos
during the prior month. In the event that AOL elects to serve the AOL
Promos from an ad server controlled by AOL or its agent, MP shall take all
reasonable operational steps necessary to facilitate such ad serving
arrangement including, without limitation, inserting HTML code designated
by AOL on the pages on which the AOL Promos will appear. MP shall be
permitted to participate in AOL's generally applicable affiliate program.
For the AOL Promos, AOL will take commercially reasonable efforts to ensure
that, if technically feasible, MP traffic is channeled back to MP and the
MP Interactive Site containing such AOL Promo.
2. In addition, within each MP Interactive Site, MP shall provide prominent
promotion for the keywords granted to MP hereunder. Other than for
instances in which physical execution would be commercially impractical
(i.e., in the case of radio or television, an advertisement of fifteen
seconds or less, and, in the case of print advertisement, an advertisement
less than one quarter page) or in which MP is not the party paying for such
advertisements, in MP's television, radio, print and "out of home" (e.g.,
buses and billboards) advertisements (excluding all delivery vehicles,
provided that no Interactive Service shall be promoted on such delivery
vehicles) and in any publications, programs, features or other forms of
media over which MP exercises primary editorial control, MP will include
specific references or mentions (verbally where possible) of the
availability of the Affiliated MP Site through the AOL Network, which are
at least as prominent as any references that MP makes to the URL (e.g.,
"www.") or other navigation (but not including general branding of MP's
tradename) for any MP Interactive Site. Without limiting the generality of
the foregoing, MP's listing of the "URL" (e.g., "www.") for any MP
Interactive Site will be accompanied by an equally prominent listing of the
"keyword" term on AOL for the Affiliated MP Site.
3. At AOL's option, MP shall no more than once per quarter distribute CD-Roms
containing the software necessary to operate the AOL Service through MP's
grocery delivery business and shall pay MP [***] ($[***]) per CD-Rom
distributed. In addition, MP may request that AOL provide CD-Roms for
delivery to MP customers and potential customers. In the event AOL grants
MP's request, AOL shall provide MP with all such CD-Roms free of charge.
AOL shall pay MP a bounty of [***] dollars ($[***]) for each Qualified New
Member obtained through such distribution. "Qualified New Member" shall
mean any person over the age of 18 in the U.S. who newly registers (i.e.,
is not a current member and was not a member for the 2 months immediately
preceding such registration) for the AOL Service during the Term using
MP 's special promotion identifier and who pays the then-standard fees
required for membership to the AOL Service and remains a fully paid member
in good standing through at least one (1) billing cycle (60 days total,
including one free month and one paid month). AOL shall deliver
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
22
<PAGE>
all payments due under this paragraph to MP quarterly. In the event that
the one dollar per CD-Rom charge is adverse to AOLs ability to participate
in the distribution described in this Section 3, the Parties agree to
discuss in good faith a restructuring of this arrangement.
23
<PAGE>
EXHIBIT D
Description of Products and Other Content
-----------------------------------------
Products and services generally available in grocery supermarkets
24
<PAGE>
EXHIBIT D-1
AOL Exclusive Offers
--------------------
Examples include:
Free delivery on next two orders
$10 off on each of the next two shops that are over $75.00
25
<PAGE>
EXHIBIT E
Operations
----------
1. General. The Affiliated MP Site (including the Products and other Content
-------
contained therein) will be in the top [***] in the online grocery delivery
industry, as determined by each of the following methods: (a) based on a cross-
section of third-party reviewers who are recognized authorities in such industry
and (b) with respect to all material quality averages or standards in such
industry, including each of the following: (i) pricing of Products, (ii) scope
and selection of Products, (iii) quality of Products, (iv) customer service and
fulfillment associated with the marketing and sale of Products and (v) ease of
use.
2. Affiliated MP Site Infrastructure. MP will be responsible for all
---------------------------------
communications, hosting and connectivity costs and expenses associated with the
Affiliated MP Site. MP will provide all hardware, software, telecommunications
lines and other infrastructure necessary to meet traffic demands on the
Affiliated MP Site from the AOL Network. MP will design and implement the
network between the AOL Service and Affiliated MP Site such that (I) no single
component failure will have a materially adverse impact on AOL Members seeking
to reach the Affiliated MP Site from the AOL Network and (ii) no single
lineunder material control by MP will run at more than 70% average utilization
for a 5-minute peak in a daily period. In the event that MP elects to create a
custom version of the Affiliated MP Site in order to comply with the terms of
this Agreement, MP will bear responsibility for all aspects of the
implementation, management and cost of such customized site.
3. Optimization; Speed. MP will use commercially reasonable efforts to
-------------------
ensure that: (a) the functionality and features within the Affiliated MP Site
are optimized for the client software then in use by AOL Members; and (b) the
Affiliated MP Site is designed and populated in a manner that minimizes delays
when AOL Members attempt to access such site. At a minimum, MP will ensure that
the Affiliated MP Site's data transfers initiate within fewer than fifteen (15)
seconds on average. Prior to commercial launch of any material promotions
described herein, MP will permit AOL to conduct performance and load testing of
the Co-Branded Site (in person or through remote communications), with such
commercial launch not to commence until such time as AOL is reasonably satisfied
with the results of any such testing.
4. intentionally deleted
---------------------
5. Technical Problems. MP agrees to use commercially reasonable efforts to
------------------
address material technical problems (over which MP exercises control) affecting
use by AOL Members of the Affiliated MP Site (a "MP Technical Problem") promptly
following notice thereof. In the event that MP is unable to promptly resolve a
MP Technical Problem following notice thereof from AOL (including, without
limitation, infrastructure deficiencies producing user delays), AOL will have
the right to initiate the dispute resolution procedures set forth in Section 7
of the Agreement.
6. Monitoring. MP will ensure that the performance and availability of the
----------
Affiliated MP Site is monitored on a continuous basis. MP will provide AOL with
contact information (including e-mail, phone, pager and fax information, as
applicable, for both during and after business hours) for MP's principal
business and technical representatives, for use in cases when issues or problems
arise with respect to the Affiliated MP Site.
7. Telecommunications. Where applicable MP will utilize encryption methodology
------------------
to secure data communications between the Parties' data centers. The network
between the Parties will be configured such that no single component failure
will significantly impact AOL Users.
8. Security. MP will utilize Internet standard encryption technologies (e.g.,
--------
Secure Socket Layer - SSL) to provide a secure environment for conducting
transactions and/or transferring private member information (e.g. credit card
numbers, banking/financial information, and member address information) to and
from the Affiliated MP Site. MP will facilitate periodic reviews of the
Affiliated MP Site with AOL in order to evaluate the security risks of such
site. MP will promptly remedy any security risks or breaches of security as may
be identified by AOL's Operations Security team.
9. Technical Performance.
---------------------
i. MP will design the Affiliated MP Site to support the AOL-client
embedded versions of the Microsoft Internet Explorer 4.XX and 5.XX
browsers (Windows and Macintosh) and the Netscape Browser 4.XX and
make commercially reasonable efforts to support all other AOL browsers
listed at: "http://webmaster.info.aol.com."
ii. To the extent MP creates customized pages on the Affiliated MP
Site for AOL Members, MP will develop and employ a methodology to
detect AOL Members (e.g. examine the HTTP User-Agent field in order to
identify the "AOL Member-Agents" listed at: "http://webmaster.
info.aol.com)."
iii. MP will periodically review the technical information made
available by AOL at http://webmaster.info.aol.com.
iv. MP will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 and to adhere to AOL's parameters for refreshing
or preventing the caching of information in AOL's proxy system as
outlined in the document provided at the following URL:
http://webmaster.info.aol.com. MP is responsible for the manipulation
of these parameters in web-based objects so as to allow them to be
cached or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features
through the Affiliated MP Site ("New Functionality"), MP will use
commercially reasonable efforts to (i) test the New Functionality to
confirm its compatibility with AOL Service client software and (ii)
provide AOL with written notice of the New Functionality so that AOL
can perform tests of the New Functionality to confirm its
compatibility with the AOL Service client software. Should any
"[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]"
26
<PAGE>
new material, new functionality or features through the Affiliated MP
Site be released without notification to AOL, AOL will not be
responsible for any adverse member experience until such time that
compatibility tests can be performed and the new material,
functionality or features qualified for the AOL Service
10. AOL Internet Services MP Support. AOL will provide MP with access to the
--------------------------------
standard online resources, standards and guidelines documentation, technical
phone support, monitoring and after-hours assistance that AOL makes generally
available to similarly situated web-based partners. AOL support will not, in any
case, be involved with content creation on behalf of MP or support for any
technologies, databases, software or other applications which are not supported
by AOL or are related to any MP area other than the Affiliated MP Site.
27
<PAGE>
EXHIBIT F
Standard Online Commerce Terms & Conditions
-------------------------------------------
1. AOL Network Distribution. MP will not authorize or permit any third party
------------------------
to distribute or promote the Products or any MP Interactive Site through the AOL
Network absent AOL's prior written approval. The Promotions and any other
promotions or advertisements purchased from or provided by AOL will link only to
the Affiliated MP Site, will be used by MP solely for its own benefit and will
not be resold, traded, exchanged, bartered, brokered or otherwise offered to any
third party.
2. Provision of Other Content. In the event that AOL notifies MP that (i) as
--------------------------
reasonably determined by AOL, any Content within the Affiliated MP Site violates
AOL's then-standard Terms of Service (as set forth on the America Online brand
service at Keyword term "TOS"), for the AOL Service or any other AOL property
through which the entry page is promoted, the terms of this Agreement or any
other standard, written AOL policy or (ii) AOL reasonably objects to the
inclusion of any Content within the Affiliated MP Site (other than any specific
items of Content which may be expressly identified in this Agreement), then MP
will take commercially reasonable steps to block access by AOL Users to such
Content using MP's then-available technology. In the event that MP cannot,
through its commercially reasonable efforts, block access by AOL Users to the
Content in question, then MP will provide AOL prompt written notice of such
fact. AOL may then, at its option, restrict access from the AOL Network to the
Content in question using technology available to AOL. MP will cooperate with
AOL's reasonable requests to the extent AOL elects to implement any such access
restrictions.
3. Contests. MP will take all steps necessary to ensure that any contest,
--------
sweepstakes or similar promotion conducted or promoted through the Affiliated MP
Site (a "Contest") complies with all applicable federal, state and local laws
and regulations.
4. Navigation. Subject to the prior consent of MP, which consent will not be
----------
unreasonably withheld, AOL will be entitled to establish navigational icons,
links and pointers connecting the Co-Branded Entry Page (or portions thereof)
with other content areas on or outside of the AOL Network, provided that MP
shall have final approval, in its sole discretion, of the design. Additionally,
in cases where an AOL User performs a search for MP through any search or
navigational tool or mechanism that is accessible or available through the AOL
Network (e.g., Promotions, Keyword Search Terms, or any other promotions or
navigational tools), AOL shall have the right to direct such AOL User to the
Affiliated MP Site, or any other MP Interactive Site determined by AOL in its
reasonable discretion.
5. Disclaimers. Upon AOL's request, MP agrees to include within the Affiliated
-----------
MP Site a product disclaimer (the specific form and substance to be mutually
agreed upon by the Parties) indicating that transactions are solely between MP
and AOL Users purchasing Products from MP.
6. AOL Look and Feel. MP acknowledges and agrees that AOL will own all right,
-----------------
title and interest in and to the elements of graphics, design, organization,
presentation, layout, user interface, navigation and stylistic convention
outlined in the standards and design guideline templates (including the digital
implementations thereof) which are generally associated with online areas
contained within the AOL Network, subject to MP's ownership rights in any MP
trademarks or creative works within the Affiliated MP Site and to any software
code created by MP.
7. Management of the Affiliated MP Site. MP will manage, review, delete, edit,
------------------------------------
create, update and otherwise manage all Content available on or through the
Affiliated MP Site, in a timely and professional manner and in accordance with
the terms of this Agreement. MP will ensure that the Affiliated MP Site is
current, accurate and well-organized at all times. MP warrants that the Products
and other Licensed Content: (i) will not infringe on or violate any copyright,
trademark, U.S. patent or any other third party right, including without
limitation, any music performance or other music-related rights; (ii) will not
violate AOL's then-applicable Terms of Service for the AOL Service and any other
AOL property through which the Affiliated MP Site will be promoted or any other
standard, written AOL policy; and (iii) will not violate any applicable law or
regulation, including those relating to contests, sweepstakes or similar
promotions. Additionally, MP represents and warrants that it owns or has a valid
license to all rights to any Licensed Content used in AOL "slideshow" or other
formats embodying elements such as graphics, animation and sound, free and clear
of all encumbrances and without violating the rights of any other person or
entity. MP also warrants that a reasonable basis exists for all Product
performance or comparison claims appearing through the Affiliated MP Site. MP
shall not in any manner, including, without limitation in any Promotion, the
Licensed Content or the Materials state or imply that AOL recommends or endorses
MP or MP's Products (e.g., no statements that MP is an "official" or "preferred"
provider of products or services for AOL). AOL will have no obligations with
respect to the Products available on or through the Affiliated MP Site,
including, but not limited to, any duty to review or monitor any such Products
8. Duty to Inform. MP will promptly inform AOL of any claim or threatened
--------------
claim related to the Affiliated MP Site which could reasonably lead to a claim,
demand, or liability of or against AOL and/or its affiliates by any third party.
9. Customer Service. It is the sole responsibility of MP to provide customer
----------------
service to persons or entities purchasing Products through the MP Interactive
Site, when accessed through the Affiliated MP Site and AOL Network
("Customers"). MP will bear full responsibility for all customer service,
including without limitation, order processing, billing, fulfillment, shipment,
collection and other customer service associated with any Products offered, sold
or licensed through the Affiliated MP
28
<PAGE>
Site, and AOL will have no obligations whatsoever with respect thereto. MP will
receive all emails from Customers via a computer available to MP's customer
service staff and respond to such emails in a timely manner. t. MP will receive
all orders electronically and generally process all orders within one business
day of receipt, provided Products ordered are not advance order items. MP will
ensure that all orders of Products are received, processed, fulfilled and
delivered on a timely and professional basis. MP will offer AOL Users who
purchase Products through such Affiliated MP Site a money back satisfaction
guarantee. MP will bear all responsibility for compliance with federal, state
and local laws in the event that Products are out of stock or are no longer
available at the time an order is received. MP will also comply with the
requirements of any federal, state or local consumer protection or disclosure
law. Payment for Products will be collected by MP directly from customers.
10. Production Work. In the event that MP requests AOL's production assistance
---------------
in connection with (i) ongoing programming and maintenance related to the
Affiliated MP Site, (ii) a redesign of or addition to the Affiliated MP Site
(e.g., a change to an existing screen format or construction of a new custom
form), (iii) production to modify work performed by a third party provider or
(iv) any other type of production work, MP will work with AOL to develop a
detailed production plan for the requested production assistance (the
"Production Plan"). Following receipt of the final Production Plan, AOL will
notify MP of (i) AOL's availability to perform the requested production work,
(ii) the proposed fee or fee structure for the requested production and
maintenance work and (iii) the estimated development schedule for such work. To
the extent the Parties reach agreement regarding implementation of the agreed-
upon Production Plan, such agreement will be reflected in a separate work order
signed by the Parties. To the extent MP elects to retain a third party provider
to perform any such production work, work produced by such third party provider
must generally conform to AOL's standards & practices (as provided on the
America Online brand service at Keyword term "styleguide"). The specific
production resources which AOL allocates to any production work to be performed
on behalf of MP will be as determined by AOL in its sole discretion. AOL shall
bear all AOL fees and expenses with respect to any routine production,
maintenance or related services which AOL reasonably determines are necessary
for AOL to perform in order to support the proper functioning and integration of
the Affiliated MP Site ("Routine Services").
11. Overhead Accounts. To the extent AOL has granted MP any overhead accounts
-----------------
on the AOL Service, MP will be responsible for the actions taken under or
through its overhead accounts, which actions are subject to AOL's applicable
Terms of Service and for any surcharges, including, without limitation, all
premium charges, transaction charges, and any applicable communication
surcharges incurred by any overhead Account issued to MP, but MP will not be
liable for charges incurred by any overhead account relating to AOL's standard
monthly usage fees and standard hourly charges, which charges AOL will bear.
Upon the termination of this Agreement, all overhead accounts, related screen
names and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any overhead account.
12. Navigation Tools. Any Keyword Search Terms to be directed to the Affiliated
----------------
MP Site shall be (i) made available for use by MP and (ii) limited to the
combination of the Keyword search modifier combined with a registered trademark
of MP (e.g. "AOL keyword: XYZ Company Name"). AOL reserves the right to revoke
at any time MP's use of any Keyword Search Terms which do not incorporate
registered trademarks of MP. MP acknowledges that its utilization of a Keyword
Search Term will not create in it, nor will it represent it has, any right,
title or interest in or to such Keyword Search Term, other than the right, title
and interest MP holds in MP's registered trademark independent of the Keyword
Search Term. Without limiting the generality of the foregoing, MP will not: (a)
attempt to register or otherwise obtain trademark or copyright protection in the
Keyword Search Term; or (b) use the Keyword Search Term, except for the purposes
expressly required or permitted under this Agreement. To the extent AOL allows
AOL Users to "bookmark" the URL or other locator for the Affiliated MP Site,
such bookmarks will be subject to AOL's control at all times. Upon the
termination of this Agreement, MP's rights to any Keyword Search Terms (subject
to Section 4 of Exhibit G) will terminate.
13. Merchant Certification Program. MP will participate in any generally
------------------------------
applicable "Certified Merchant" program operated by AOL or its authorized agents
or contractors. Such program may require merchant participants on an ongoing
basis to meet certain reasonable, generally applicable standards relating to
provision of electronic commerce through the AOL Network (including, as a
minimum, use of 40-bit SSL encryption and if requested by AOL, 128-bit
encryption) and may also require the payment of certain reasonable certification
fees to the applicable entity operating the program. Each Certified Merchant in
good standing will be entitled to place on its affiliated Interactive Site an
AOL designed and approved button promoting the merchant's status as an AOL
Certified Merchant.
14. Reward Programs. On the Affiliated MP Site, MP shall not offer, provide,
---------------
implement or otherwise make available any promotional programs or plans that are
intended to provide customers with rewards or benefits in exchange for, or on
account of, their past or continued loyalty to, or patronage or purchase of, the
products or services of MP or any third party (e.g., a promotional program
similar to a "frequent flier" program), unless such promotional program or plan
is provided to no greater degree than AOL's "AOL Rewards" program, accessible on
the AOL Service at Keyword: "AOL Rewards."
15. Search Terms. To the extent this Agreement sets forth any mechanism by
------------
which the Affiliated MP Site or the MP Interactive Site that is accessed through
the Affiliated MP Site will be promoted in connection with specified search
terms within any AOL product or service, MP hereby represents and warrants that
MP has all consents, authorizations, approvals, licenses, permits or other
rights necessary for MP to use such specified search terms.
29
<PAGE>
EXHIBIT G
Standard Legal Terms & Conditions
---------------------------------
1. Promotional Materials (Other than Press Releases). Each Party will submit
-------------------------------------------------
to the other Party, for its prior written approval, which will not be
unreasonably withheld or delayed, any marketing, advertising, or other
promotional materials, excluding Press Releases, related to the Affiliated MP
Site and/or referencing the other Party and/or its trade names, trademarks, and
service marks (the "Promotional Materials"); provided, however, that either
Party's use of screen shots of the Affiliated MP Site for promotional purposes
will not require the approval of the other Party so long as America Online(R) is
clearly identified as the source of such screen shots and so long as the URL of
the MP and/or the trademark of the MP is included; and provided further,
however, that, following the initial public announcement of the business
relationship between the Parties in accordance with the approval and other
requirements contained herein, either Party's subsequent factual reference to
the existence of a business relationship between the Parties in Promotional
Materials, will not require the approval of the other Party. Each Party will
solicit and reasonably consider the views of the other Party in designing and
implementing such Promotional Materials. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the Affiliated MP Site and the content contained therein and reused for such
purpose until such approval is withdrawn with reasonable prior notice. In the
event such approval is withdrawn, existing inventories of Promotional Materials
may not be depleted.
2. License. MP hereby grants AOL a revocable non-exclusive worldwide license
-------
to market, license, distribute, reproduce, display, perform, transmit and
promote the Licensed Content (or any portion thereof) through such areas or
features of the AOL Network as AOL deems appropriate. MP acknowledges and agrees
that the foregoing license permits AOL to distribute portions of the Licensed
Content in synchronism or timed relation with visual displays prepared by MP or
AOL (e.g., as part of an AOL "slideshow"), subject in each case to MP's approval
of the display. In addition, AOL Users will have the right to access and use the
Affiliated MP Site.
3. Trademark License. In designing and implementing the Materials and subject
-----------------
to the other provisions contained herein, MP will be entitled to use the
following trade names, trademarks, and service marks of AOL: the "America
Online" brand service, "AOL" service/software and AOL's triangle logo; and AOL
and its affiliates will be entitled to use the trade names, trademarks, and
service marks of MP for which MP holds all rights necessary for use in
connection with this Agreement (collectively, together with the AOL marks listed
above, the "Marks"); provided that each Party: (i) does not create a unitary
composite mark involving a Mark of the other Party without the prior written
approval of such other Party; and (ii) displays symbols and notices clearly and
sufficiently indicating the trademark status and ownership of the other Party's
Marks in accordance with applicable trademark law and practice.
4. Ownership of Trademarks. Each Party acknowledges the ownership right of
-----------------------
the other Party in the Marks of the other Party and agrees that all use of the
other Party's Marks will inure to the benefit, and be on behalf, of the other
Party. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title, or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
5. Quality Standards. Each Party agrees that the nature and quality of its
-----------------
products and services supplied in connection with the other Party's Marks will
conform to quality standards set by the other Party. Each Party agrees to supply
the other Party, upon request, with a reasonable number of samples of any
Materials publicly disseminated by such Party which utilize the other Party's
Marks. Each Party will comply with all applicable laws, regulations, and customs
and obtain any required government approvals pertaining to use of the other
Party's marks.
6. Infringement Proceedings. Each Party agrees to promptly notify the other
------------------------
Party of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party will have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party
with its reasonable cooperation and assistance with respect to any such
infringement proceedings.
7. Representations and Warranties. Each Party represents and warrants to the
------------------------------
other Party that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; and (iv) such Party
acknowledges that the other Party makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement. MP hereby represents and warrants that it possesses all
authorizations, approvals, consents, licenses, permits, certificates or other
rights and permissions necessary to sell the Products.
8. Confidentiality. Each Party acknowledges that Confidential Information may
---------------
be disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially equivalent to
the steps it takes to protect its
30
<PAGE>
own proprietary information, during the term of this Agreement, and for a period
of three years following expiration or termination of this Agreement, to prevent
the duplication or disclosure of Confidential Information of the other Party,
other than by or to its employees or agents who must have access to such
Confidential Information to perform such Party's obligations hereunder, who will
each agree to comply with this section. Notwithstanding the foregoing, either
Party may issue a press release or other disclosure containing Confidential
Information without the consent of the other Party, to the extent such
disclosure is required by law, rule, regulation or government or court order. In
such event, the disclosing Party will provide at least five (5) business days
prior written notice of such proposed disclosure to the other Party. Further, in
the event such disclosure is required of either Party under the laws, rules or
regulations of the Securities and Exchange Commission or any other applicable
governing body, such Party will (i) redact mutually agreed-upon portions of this
Agreement to the fullest extent permitted under applicable laws, rules and
regulations and (ii) submit a request to such governing body that such portions
and other provisions of this Agreement receive confidential treatment under the
laws, rules and regulations of the Securities and Exchange Commission or
otherwise be held in the strictest confidence to the fullest extent permitted
under the laws, rules or regulations of any other applicable governing body.
9. Limitation of Liability; Disclaimer; Indemnification.
----------------------------------------------------
9.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE
---------
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS AND/OR
SERVICES, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.COM
OR THE CO-BRANDED ENTRY PAGE THE AFFILIATED MP SITE OR ANY OF THE MP INTERACTIVE
SITES, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN
LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A
THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9.3. EXCEPT
AS PROVIDED IN SECTION 9.3, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE
LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM
LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION
WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF FIXED PAYMENT
OBLIGATIONS OWED BY MP UNDER SECTION 4.1.1 OF THE AGREEMENT IN THE YEAR IN WHICH
THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN
LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER
PARTY PURSUANT TO THE AGREEMENT.
9.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
------------------------
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
THE AOL SERVICE, AOL.COM, THE CO-BRANDED ENTRY PAGE OR THE AFFILIATED MP SITE OR
ANY OF THE MP INTERACTIVE SITES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
THE PROFITABILITY OF THE AFFILIATED MP SITE.
9.3 Indemnity. Each Party will defend, indemnify, save and hold harmless the
---------
other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable attorneys'
fees ("Liabilities"), resulting from the indemnifying Party's material breach of
any duty, representation, or warranty of this Agreement.
9.4 Claims. If a Party entitled to indemnification hereunder (the "Indemnified
------
Party") becomes aware of any matter it believes is indemnifiable hereunder
involving any claim, action, suit, investigation, arbitration or other
proceeding against the Indemnified Party by any third party (each an "Action"),
the Indemnified Party will give the other Party (the "Indemnifying Party")
prompt written notice of such Action. Such notice will (i) provide the basis on
which indemnification is being asserted and (ii) be accompanied by copies of all
relevant pleadings, demands, and other papers related to the Action and in the
possession of the Indemnified Party. The Indemnifying Party will have a period
of ten (10) days after delivery of such notice to respond. If the Indemnifying
Party elects to defend the Action or does not respond within the requisite ten
(10) day period, the Indemnifying Party will be obligated to defend the Action,
at its own expense, and by counsel reasonably satisfactory to the Indemnified
Party. The Indemnified Party will cooperate, at the expense of the Indemnifying
Party, with the Indemnifying Party and its counsel in the defense and the
Indemnified Party will have the right to participate fully, at its own expense,
in the defense of such Action. If the Indemnifying Party responds within the
required ten (10) day period and elects not to defend such Action, the
Indemnified Party will be free, without prejudice to any of the Indemnified
Party's rights hereunder, to compromise or defend (and control the defense of)
such Action. In such case, the Indemnifying Party will cooperate, at its own
expense, with the Indemnified Party and its counsel in the defense against such
Action and the Indemnifying Party will have the right to participate fully, at
its own expense, in the defense of such Action. Any compromise or settlement of
an Action will require the
31
<PAGE>
prior written consent of both Parties hereunder, such consent not to be
unreasonably withheld or delayed.
10. Acknowledgment. AOL and MP each acknowledges that the provisions of this
--------------
Agreement were negotiated to reflect an informed, voluntary allocation between
them of all risks (both known and unknown) associated with the transactions
contemplated hereunder. The limitations and disclaimers related to warranties
and liability contained in this Agreement are intended to limit the
circumstances and extent of liability. The provisions of this Section 10 will be
enforceable independent of and severable from any other enforceable or
unenforceable provision of this Agreement.
11. Solicitation of AOL Users. During the term of the Agreement and for a two
-------------------------
year period thereafter, MP will not use the AOL Network (including, without
limitation, the e-mail network contained therein) to solicit AOL Users on behalf
of another Interactive Service. More generally, MP will not send unsolicited,
commercial e-mail (i.e., "spam") or other online communications through or into
AOL's products or services, absent a Prior Business Relationship. For purposes
of this Agreement, a "Prior Business Relationship" will mean that the AOL User
to whom commercial e-mail or other online communication is being sent has
voluntarily either (i) engaged in a transaction with MP or (ii) provided
information to MP through a contest, registration, or other communication, which
included clear notice to the AOL User that the information provided could result
in commercial e-mail or other online communication being sent to that AOL User
by MP or its agents. Any commercial e-mail or other online communications to AOL
Users which are otherwise permitted hereunder, will (a) include a prominent and
easy means to "opt-out" of receiving any future commercial communications from
MP, and (b) shall also be subject to AOL's then-standard restrictions on
distribution of bulk e-mail (e.g., related to the time and manner in which such
e-mail can be distributed through or into the AOL product or service in
question).
12. AOL User Communications. To the extent that MP is permitted to communicate
--------------------------
with AOL Users under Section 11 of this Exhibit G, in any communications to AOL
Users on or off the Affiliated MP Site (including, without limitation, e-mail
solicitations) that are the type of communications described in Section 11 (the
"AOL User communications"), MP will not encourage AOL Users to take any action
inconsistent with the scope and purpose of this Agreement, including without
limitation, the following actions: (i) using an entry page other than the
Affiliated MP Site for the purchase of Products, (ii) using Content other than
the Licensed Content; (iii) bookmarking of Interactive Sites; or (iv) changing
the default home page on the AOL browser. Additionally, with respect to such AOL
User communications, in the event that MP encourages an AOL User to purchase
products through such communications, MP shall ensure that (a) the AOL Network
is promoted as the primary means through which the AOL User can access the
Affiliated MP Site and (b) any link to the Affiliated MP Site will link to a
page which indicates to the AOL User that such user is in a site which is
affiliated with the AOL Network.
13. Collection and Use of User Information. Each party shall ensure that its
--------------------------------------
collection, use and disclosure of information obtained from AOL Users under this
Agreement ("User Information") complies with (i) all applicable laws and
regulations and (ii) AOL's standard privacy policies, available on the AOL
Service at the keyword term "Privacy" (or, in the case of the Affiliated MP
Site, MP's standard privacy policies so long as such policies are prominently
published on the site and provide adequate notice, disclosure and choice to
users regarding MP's collection, use and disclosure of user information). MP
will not (a) disclose User Information collected hereunder (i) to any third
party in a manner that identifies AOL Users as end users of an AOL product or
service, or (ii) to any Interactive Service or (b) use Member Information
collected under this Agreement to market another Interactive Service. Likewise,
AOL will not without in each case the prior written consent of MP (a) disclose
User Information collected hereunder (i) to any third party in a manner that
identifies AOL Users as end users of an MP product or service, or (ii) to any
Interactive Service or (b) use Member Information collected under this Agreement
to market another provider of the Exclusive Product.
14. Excuse. Neither Party will be liable for, or be considered in breach of
------
or default under this Agreement on account of, any delay or failure to perform
as required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
15. Independent Contractors. The Parties to this Agreement are independent
-----------------------
contractors. Neither Party is an agent, representative or employee of the other
Party. Neither Party will have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement will not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
16. Notice. Any notice, approval, request, authorization, direction or other
------
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname
"[email protected]" in the case of AOL) or by confirmed facsimile; (ii) on the
delivery date if delivered personally to the Party to whom the same is directed;
(iii) one business day after deposit with a commercial overnight carrier, with
written verification of receipt; or (iv) five business days after the mailing
date, whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (fax no. 703-
265-1206) and the Deputy General Counsel (fax no. 703-265-1105), each at the
address of AOL set forth in the first paragraph of this Agreement. In the case
of MP, such notice will be provided to both the Senior Vice
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President of Marketing, currently Jon Landers (fax no. 425-201-7887) and the
General Counsel, currently Kristin Stred (fax no. 425-201-7805) each at the
address for MP set forth in the first paragraph of this Agreement.
17. Launch Dates. In the event that any terms contained herein relate to or
------------
depend on the commercial launch date of the Affiliated MP Site contemplated by
this Agreement (the "Launch Date"), then it is the intention of the Parties to
record such Launch Date in a written instrument signed by both Parties promptly
following such Launch Date; provided that, in the absence of such a written
instrument, the Launch Date will be as reasonably determined by AOL based on the
information available to AOL.
18. No Waiver. The failure of either Party to insist upon or enforce strict
---------
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement will not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same will be
and remain in full force and effect.
19. Return of Information. Upon the expiration or termination of this
---------------------
Agreement, each Party will, upon the written request of the other Party, return
or destroy (at the option of the Party making the request) all confidential
information, documents, manuals and other materials specified the other Party.
20. Survival. Sections 1.2, 4.4, 4.5, 6.2, and 7.7 of the body of the
--------
Agreement, Sections 4 and 8 through 30 of this Exhibit, and any payment
-------
obligations accrued prior to termination or expiration will survive the
completion, expiration, termination or cancellation of this Agreement.
21. Entire Agreement. This Agreement sets forth the entire agreement and
----------------
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein. Neither Party will be bound by, and each Party
specifically objects to, any term, condition or other provision which is
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) and which is proffered by the
other Party in any correspondence or other document, unless the Party to be
bound thereby specifically agrees to such provision in writing.
22. Amendment. No change, amendment or modification of any provision of this
---------
Agreement will be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment, and in the case of AOL, by an
executive of at least the same standing to the executive who signed the
Agreement.
23. Further Assurances. Each Party will take such action (including, but not
------------------
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
24. Assignment. Neither party may assign this Agreement or any right,
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interest or benefit under this Agreement without the prior written consent of
the other party; provided, however, that (i) MP shall have the right to assign
this Agreement to any successor to MP, whether by way of acquisition, merger,
consolidation or otherwise, without the prior approval of AOL, unless such
successor is an Interactive Service and (ii) AOL shall have the right to assign
this Agreement to any affiliate of AOL. Subject to the foregoing, this Agreement
will be fully binding upon, inure to the benefit of and be enforceable by the
Parties hereto and their respective successors and assigns.
25. Construction; Severability. In the event that any provision of this
--------------------------
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Agreement, (i) such provision will be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law, and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in full force and
effect.
26. Remedies. Except where otherwise specified, the rights and remedies
--------
granted to a Party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the Party may possess at law
or in equity; provided that, in connection with any dispute hereunder, MP will
be not entitled to offset any amounts that it claims to be due and payable from
AOL against amounts otherwise payable by MP to AOL.
27. Applicable Law. Except as otherwise expressly provided herein, this
--------------
Agreement will be interpreted, construed and enforced in all respects in
accordance with the laws of the State of New York except for its conflicts of
laws principles.
28. Export Controls. Both Parties will adhere to all applicable laws,
---------------
regulations and rules relating to the export of technical data and will not
export or re-export any technical data, any products received from the other
Party or the direct product of such technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
29. Headings. The captions and headings used in this Agreement are inserted
--------
for convenience only and will not affect the meaning or interpretation of this
Agreement.
30. Counterparts. This Agreement may be executed in counterparts, each of
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which will be deemed an original and all of which together will constitute one
and the same document
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