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EXHIBIT 10.32
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS AND
ENCLOSED BY BRACKETS. THE CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
EXCITE@HOME
▇▇▇▇▇▇▇.▇▇▇ LETTER OF INTENT
THIS EXCITE@HOME/▇▇▇▇▇▇▇.▇▇▇ Letter of Intent is made as of August 4, 1999
("Effective Date") between Excite, Inc., a wholly owned subsidiary of At Home
Corporation, a Delaware corporation with principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Excite@Home"); and ▇▇▇▇▇▇▇.▇▇▇, Inc. a Delaware company
with principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("▇▇▇▇▇▇▇.▇▇▇ ").
RECITALS
A. The parties are conducting negotiations relating to distribution,
advertising sales and other services on the Excite service. The parties
will continue to use good faith efforts to promptly negotiate and
execute a definitive agreement relating to those matters (the
"Definitive Agreement") on or prior to September 1, 1999.
B. Although the parties are not yet ready to enter into the Definitive
Agreement, the parties would like to set forth in this Letter of Intent
to agree on certain issues that will be addressed in the Definitive
Agreement. It is expressly understood that this Letter of Intent
constitutes a binding obligation of the parties. Until the parties
execute the Definitive Agreement, this Letter of Intent shall
constitute a valid and binding agreement of the parties hereto.
1. CO-BRANDED TICKETING APPLICATION
a) ▇▇▇▇▇▇▇.▇▇▇ will create a co-branded ticketing application
("Co-Branded Ticketing Application") for the Excite Site and
other sites that Excite@Home has the right to program ("Excite
Network").
b) Co-Branded Ticketing Application will include content and
functionality that allows users to search for events by city,
venue, date, artist, team, and keywords as well as in
classifieds (Excite Classifieds) and in auctions (▇▇▇▇▇▇▇.▇▇▇
Auctions), and to buy tickets to certain events ("Application
Content").
c) Previews to the Co-Branded Ticketing Application will be
featured in programmed search results and appropriate "Excite
Channels" including, but not limited to, Sports, Local, Music,
Movies, Entertainment and Travel. "Excite Channels" are
channels on Excite that display Excite navigation, Excite
directory and community products.
d) ▇▇▇▇▇▇▇.▇▇▇ will design and create web pages containing the
Application Content ("Application Pages"). The Application
Pages will be in accordance with guidelines that Excite@Home
will provide ▇▇▇▇▇▇▇.▇▇▇ which include, but are not limited
to, page performance standards, header and other design/user
interface standards.
e) The Application Pages will carry both Excite branding and
▇▇▇▇▇▇▇.▇▇▇ branding, displayed in substantially equivalent
location, size and prominence. Excite's branding will be
displayed as consistent with the rest of the Excite Network.
f) The "look and feel" of the Application Pages will be
consistent with the "look and feel" of the Excite Network.
Excite@Home will have final approval over the "look and feel"
of the Application Pages.
g) ▇▇▇▇▇▇▇.▇▇▇ will host the Co-Branded Ticketing Application but
it will be served from an "▇▇▇▇▇▇.▇▇▇" domain name (or such
other domain Excite@Home may determine) so that Excite@Home
can get the reach and page view credit. Excite@Home will work
with ▇▇▇▇▇▇▇.▇▇▇ and Media Metrix to get reach credit for the
Co-Branded Ticketing Application on behalf of ▇▇▇▇▇▇▇.▇▇▇.
h) ▇▇▇▇▇▇▇.▇▇▇ will continue to maintain its own web site at
▇▇▇.▇▇▇▇▇▇▇.▇▇▇ ("▇▇▇▇▇▇▇.▇▇▇ Site").
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2. CONTENT PROVIDED TO EXCITE FOR INTEGRATION
a) ▇▇▇▇▇▇▇.▇▇▇ will provide content for display on the Excite
Network and on other sites Excite that has right to program.
b) ▇▇▇▇▇▇▇.▇▇▇ will provide the content such as a full listing of
events and venues (listings should include events for which
both ▇▇▇▇▇▇▇.▇▇▇ and other ticketing providers can provide
ticket buying functionality) (the "Content"). Excite will
create and host the Web pages ("Content Pages") incorporating
the Content. Content Pages are pages that display the Content
or any portion thereof and with respect to which at least a
majority of the content (excluding advertisements) on such
pages is composed of the Content. Content Pages specifically
exclude search results pages.
c) Excite@Home will integrate the Content into Excite@Home's
"Searchable Product Application", a database-driven commerce
application which will allow users to search or browse for
commerce-related information. ▇▇▇▇▇▇▇.▇▇▇ will point to the
Searchable Product Application, as applicable, in the
Co-Branded Ticketing Application.
d) ▇▇▇▇▇▇▇.▇▇▇ and Excite will determine mutually agreeable
automated methods for the transmission and incorporation of
updates to the Content.
e) ▇▇▇▇▇▇▇.▇▇▇ will have sole responsibility for providing, at
its expense, the Content to Excite.
3. ONLINE AND DEVICE DISTRIBUTION AND OFF-WEB PROMOTION
a) Excite@Home will create a persistent link to a ticket buying
tool on the My Excite Start Page. Excite@Home will also create
a personalizable module for the My Excite Start Page for
ticket buying functionality.
b) Excite@Home will feature the ticket buying tool above the fold
on the My Excite Start Page for 60 days after launch of the
Co-Branded Ticketing Application ("Launch Period").
c) After the Launch Period, Excite@Home will feature the
ticketing buying tool above the fold on the My Excite Start
Page provided it is in the top 50% of the top performing links
as compared to other comparable links on the My Excite Start
Page based on the following metrics: click throughs on the
ticket buying tool and RPMs for the Co-Branded Ticketing
Application. In the event that the ticket buying tool falls
below the top 50% of the top performing links on the My Excite
Start Page in any one month, a mandatory reevaluation of the
programming of this tool will be initiated. In the event that
the ticket buying tool is below the top 50% of the top
performing links on the My Excite Start Page for two
consecutive months or two months in any one quarter, then
Excite@Home may move that link to another location on the My
Excite Start Page. Above the fold placement of the ticket
buying tool will be reevaluated if the ticket buying tool link
outperforms a comparable link above the fold for 30
consecutive days or the Co-Branded Ticketing Application goes
through a substantial relaunch. In those events, the ticket
buying tool will be placed above the fold for a one month
trial and the metrics stated above will apply.
d) Excite@Home will promote ticket buying functionality in
channels and applications that include, but are not limited
to, Sports, Local, Music, Movies, Entertainment and Travel.
Excite@Home will build an "Application Preview" for an events
application with integrated ticketing functionality in the
Entertainment Channel. "Application Preview" is defined as
featured text dedicated to previewing content and
functionality.
e) Excite@Home will integrate content feeds of events listings
and other venue information throughout the Excite Network
including programmed search results, directory and
applications.
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f) Excite@Home will distribute ticket buying functionality and
content throughout the @Home broadband service, subject only
to contractual obligations and MSO restrictions. Excite@Home
will also allow for broadband content distribution such as
video and audio clips promoting tickets sales. In the event
that Excite@Home gains full programming control of the @Home
broadband service, Excite@Home will provide ▇▇▇▇▇▇▇.▇▇▇
similar promotion and distribution as on the Excite Network.
g) Excite@Home will commit to the following minimum number of
Impressions. Impression means each placement of content,
links, or promotion including, but not limited to front page
placement, programmed search results, keyword banners,
channels, applications and other forms of distribution.
TABLE I
YEAR 1 YEAR 2 YEAR 3
------ ------ ------
Minimum Impression Guarantee [***] [***] [***]
h) If, on the last day of the twenty ninth month of the term of
the Letter of Intent, Excite@Home has not provided at least
[***] Impressions, the term will be extended for the lesser of
(i) six months; or (ii) the number of days necessary for
Excite to deliver the number of impressions listed in TABLE I.
i) Subject to existing contractual obligations, ▇▇▇▇▇▇▇.▇▇▇ will
receive all banner inventory for the key word "tickets" on
search results pages that will point to the Co-Branded
Ticketing Application for the term of the Letter of Intent.
j) As Excite@Home distributes content in wireless devices and
web-enabled appliances. Excite@Home will commit, where
feasible and appropriate, to distribute ▇▇▇▇▇▇▇.▇▇▇ content
such as venue and event listings and also promote
1-800-tickets in order to drive additional ticket buying.
k) ▇▇▇▇▇▇▇.▇▇▇ will provide Excite@Home branding and promotion in
venues and in other off-web media, to be decided on a
case-by-case basis. Excite@Home will receive Most Favored
Nations status on commitments and pricing for online and
off-web promotions and marketing.
4. ADDITIONAL PROMOTION AND DISTRIBUTION
In addition to the promotion and distribution provided above,
Excite@Home will provide to ▇▇▇▇▇▇▇.▇▇▇ promotion and distribution
valued as shown below according to pricing which is no less favorable
than the average price for the product offered to Excite@Home's top 20
advertisers.
YEAR 1 YEAR 2 YEAR 3
------ ------ ------
Additional Promotion and
Distribution Value [***] [***] [***]
Excite@Home will provide the additional promotion and distribution in
the form of (i) available targeted banner advertising inventory in
Entertainment, Sports, Travel and Local and/or additional links and
placements for the Co-Branded Ticketing Application; (ii) available key
word banner advertising related to event ticketing for the Co-Branded
Ticketing Application, exact key words to be identified in the
Definitive Agreement; (iii) additional MatchLogic services; (iv)
co-branding Excite's clubs product (gated communities); (v)
participation in future products as appropriate and available. The
parties will meet prior to the beginning of each year to determine the
combination of additional promotion and distribution.
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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5. COMMUNTIES/DATA OWNERSHIP/USAGE REPORTS
a) The Co-Branded Ticketing Application will point to Excite@Home
community products which include message boards, chat, clubs,
home pages, instant messaging, calendar, address book, email,
photos and any other community products developed by
Excite@Home during the term of this Letter of Intent
("Community Products"). The Co-Branded Ticketing Application
will not feature or display links to non-Excite@Home community
products without the written permission of Excite@Home.
▇▇▇▇▇▇▇.▇▇▇ and Excite will work together, to the extent
feasible, to integrate Community Products into the Co-Branded
Ticketing Application.
b) Excite@Home and ▇▇▇▇▇▇▇.▇▇▇ will work together to fully
integrate the Co-Branded Ticketing Application with
Excite@Home's Universal Registration System. ▇▇▇▇▇▇▇.▇▇▇ will
integrate according to Excite@Home's technical and operational
specifications. Each party will incur their own costs related
to the integration. ▇▇▇▇▇▇▇.▇▇▇ agree to abide by Excite's
privacy policies as amended from time to time.
c) Excite@Home and ▇▇▇▇▇▇▇.▇▇▇ will explore opportunities to
synchronize the registration processes of both sites so that
users can have a seamless experience regardless of where they
registered.
d) ▇▇▇▇▇▇▇.▇▇▇ may collect user information on the Co-Branded
Ticketing Application. ("User Data"). The storage of User Data
will comply with Excite@Home's security and privacy
guidelines.
e) The User Data collected through the Co-Branded Ticketing
Application shall be jointly owned by Excite@Home and
▇▇▇▇▇▇▇.▇▇▇.
f) ▇▇▇▇▇▇▇.▇▇▇ agrees not to use User Data to directly or
indirectly solicit or contact any Excite@Home users either
individually or in the aggregate, during or for a period of
ten (10) months following the expiration or termination of the
Letter of Intent. To the extent that ▇▇▇▇▇▇▇.▇▇▇ must share
User Data with individual venues, Excite@Home will honor the
contractual agreements and privacy policies between the venues
and ▇▇▇▇▇▇▇.▇▇▇.
g) ▇▇▇▇▇▇▇.▇▇▇ and Excite@Home agree to not sell, disclose,
transfer or rent user data to any 3rd party without the
express permission of the user.
h) ▇▇▇▇▇▇▇.▇▇▇ and Excite@Home will provide usage reports to each
other on a monthly basis by email.
6. PREMIER STATUS
a) During the term of this Letter of Intent, ▇▇▇▇▇▇▇.▇▇▇ will be
the premier provider of ticketing functionality on the Excite
Network ("Premier Status"). Premier ticketing functionality is
defined as the most highly promoted provider of integrated
ticketing functionality.
b) In the event that Excite@Home decides that it needs to add
features, tools and/or content (excluding tickets inventory)
("Additional Functionality") to the Excite Network that
▇▇▇▇▇▇▇.▇▇▇ does not have, ▇▇▇▇▇▇▇.▇▇▇ will have ten (10) days
to respond to Excite@Home's written notice of its desire to
provide the Additional Functionality and on or before the
later of (i) thirty (30) days; or (ii) the date on which
Additional Functionality can reasonably be available to Excite
from a third party, as determined by a proposal by a third
party. If ▇▇▇▇▇▇▇.▇▇▇ is not able to provide Additional
Functionality, Excite@Home may enter into an agreement with
another third party provider to attain the Additional
Functionality and incorporate it into the Excite Network. In
the event that Excite@Home uses a third party provider for
Additional Functionality, ▇▇▇▇▇▇▇.▇▇▇ Premier Status as
described in 6 (a) above will not be impacted.
c) Excite@Home will receive Most Favored Nations status for
content, functionality, and revenue sharing on transactions
and ticket sales, in comparison to any other material deals
with specifically-identified competing portals (list to be
provided). ▇▇▇▇▇▇▇.▇▇▇ will allocate the engineering resources
necessary to make Excite@Home the highest priority of any of
▇▇▇▇▇▇▇.▇▇▇'s distribution partners.
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7. CONTENT AND FUNCTIONALITY PROVIDED TO ▇▇▇▇▇▇▇.▇▇▇ SITE
a) ▇▇▇▇▇▇▇.▇▇▇ may link to Excite@Home content such as local
content for any available local markets in the US, maps,
driving directions, movies application and local events
application ("Excite@Home Content").
b) ▇▇▇▇▇▇▇.▇▇▇ may link to Excite@Home tools such as calendar,
clubs, message boards, chat, instant messaging, jango and
classifieds ("Excite@Home Tools").
c) Excite will co-brand the Excite@Home Content and Tools, if
technically possible and contractually permitted, in
accordance to the branding of the ▇▇▇▇▇▇▇.▇▇▇ Site provided
▇▇▇▇▇▇▇.▇▇▇ reimburses Excite for the co-branding development.
8. QUALITY/CUSTOMER SUPPORT
a) ▇▇▇▇▇▇▇.▇▇▇ will answer and/or fix significant bug reports on
the Co-Branded Ticketing Application within three business
days of notification.
b) ▇▇▇▇▇▇▇.▇▇▇ Site and Co-Branded Ticketing Application will be
accessible from the web twenty four hours a day, seven days a
week.
c) ▇▇▇▇▇▇▇.▇▇▇ will copy Excite@Home on all correspondence with
Co-Branded Ticketing Application users. Excite@Home will copy
▇▇▇▇▇▇▇.▇▇▇ on all correspondence related to the Co-Branded
Ticketing Application from its users.
d) ▇▇▇▇▇▇▇.▇▇▇ will not send direct mailings to Excite@Home users
without prior consent of Excite@Home. Excite@Home will not
send direct mailings to users of the ▇▇▇▇▇▇▇.▇▇▇ Site,
provided that those users are not also Excite@Home users,
without prior consent of ▇▇▇▇▇▇▇.▇▇▇.
9. TERM
Three year term. The parties agree to meet and negotiate in good faith
the terms and conditions of renewal no later than 90 days prior to the
expiration of the Definitive Agreement.
10. ADVERTISING REVENUES FOR ▇▇▇▇▇▇▇.▇▇▇
CO-BRANDED TICKET APPLICATION
a) Excite@Home will be responsible for selling advertising on the
Co-Branded Ticketing Application. Excite@Home will also be
responsible for ad serving on the Co-Branded Ticketing
Application.
b) Excite@Home will pay ▇▇▇▇▇▇▇.▇▇▇ on a quarterly basis the
greater of (i) advertising guarantee payments outlined in
TABLE II (ratably per quarter) or (ii) [***] percent ([***]%)
of the "Net Advertising Revenue" that accrues to Excite@Home
during the term of this Letter of Intent from banner
advertising on the Co-Branded Ticketing Application and
Content Pages. "Net Advertising Revenue" means the gross
revenue from banner advertising on the Co-Branded Ticketing
Application and Content Pages that accrues to Excite@Home
during the applicable payment period minus sales commissions
of [***] percent ([***]%) and ad serving expenses of [***]
percent ([***]%).
TABLE II
YEAR 1 YEAR 2 YEAR 3
------ ------ ------
Content Revenue Guarantee [***] [***] [***]
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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▇▇▇▇▇▇▇.▇▇▇ SITE
c) Excite@Home will be responsible for selling advertising on the
▇▇▇▇▇▇▇.▇▇▇ Site. Excite@Home will also be responsible for ad
serving on the ▇▇▇▇▇▇▇.▇▇▇ Site.
d) Subject to traffic guarantees described below, Excite@Home
will guarantee minimum advertising revenues to ▇▇▇▇▇▇▇.▇▇▇ as
shown in TABLE III. ▇▇▇▇▇▇▇.▇▇▇ will pay to Excite@Home a
percentage of the revenues as follows: sales commissions of
[***] percent ([***]%) of gross sales and ad serving expenses
of [***] percent ([***]%). Revenues, less commission and ad
serving costs earned in excess of the minimum guarantees will
accrue to ▇▇▇▇▇▇▇.▇▇▇. It is the intent of the parties that
▇▇▇▇▇▇▇.▇▇▇ be able to recognize gross sales revenue. The
parties agree to provide for a sales coordination, reporting
and documentation process in the Definitive Agreement that
will accomplish the recognition intent. Incremental costs to
Excite@Home incurred as a result of processes designed to
shift revenue recognition will be reimbursed by ▇▇▇▇▇▇▇.▇▇▇ in
a manner or amount that will be provided in the Definitive
Agreement.
TABLE III
YEAR 1* YEAR 2 YEAR 3**
------- ------ --------
Excite Minimum Revenue Guarantee
(150% of management projections) [***] [***] [***]
Management Revenue Projections [***] [***] [***]
Implied Guaranteed RPM*** [***] [***] [***]
Projected Annual Page Views [***] [***] [***]
Unique Visitors (Monthly Average) [***] [***] [***]
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All assumptions based on management projections.
* Year 1 is defined as year ended 9/30/2000
** Year 3 is defined as Q4 2001 management projections
annualized.
*** RPM means Revenue Per Thousand Pages which includes
revenues from advertising and sponsorship opportunities.
[Revenue, traffic and unique visitor guarantees will be provided on a quarterly
basis in the Definitive Agreement]
e) In the event that page views are different from that projected
in TABLE III, the following metrics will be applied to the
revenue guarantees:
i) If actual page views exceed 100% of the projected
page views, Excite@Home will guarantee ▇▇▇▇▇▇▇.▇▇▇
the minimum revenue guarantees shown in TABLE III.
ii) If actual page views are between 80% and 100% of the
projected page views, Excite@Home will pro-rate the
minimum revenue guarantees using the RPMs shown in
TABLE III on the actual page views.
iii) If actual page views are between 60% and 80% of the
projected page views, Excite@Home will calculate the
minimum revenue guarantees using an $[***] RPM and
the actual page views.
iv) If actual page views are less than 60% of projected
page views, Excite@Home will not provide minimum
revenue guarantees but will make good faith efforts
to sell the ▇▇▇▇▇▇▇.▇▇▇ Site effectively.
v) If unique visitors are below 85% of projected unique
visitors in any one quarter, the minimum revenue
guarantees will be subject to adjustments to be
mutually agreed upon.
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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f) In order to achieve the RPMs guaranteed above, ▇▇▇▇▇▇▇.▇▇▇
will ensure that ▇▇▇▇▇▇▇.▇▇▇ Site will have flexibility in
programming for advertising and will have at least the same
number of advertising opportunities as on the channel and
application pages on the Excite Network (currently one banner
ad and three sponsorship boxes).
g) In the event that ▇▇▇▇▇▇▇.▇▇▇ decides to build its own sales
force, ▇▇▇▇▇▇▇.▇▇▇ may sell ▇▇▇▇▇▇▇.▇▇▇ Site advertising
inventory. Excite@Home will manage sales coordination issues
and commensurately reduce its revenue guarantees on a pro-rata
basis. If ▇▇▇▇▇▇▇.▇▇▇ elects to sell more than 40% of the
advertising inventory on ▇▇▇▇▇▇▇.▇▇▇ Site, Excite@Home will
cooperate in the selling efforts but will not be subject to
minimum revenue guarantees shown in TABLE III.
h) On 30 days notice to Excite@Home, ▇▇▇▇▇▇▇.▇▇▇ may take over
the selling of the ▇▇▇▇▇▇▇.▇▇▇ Site provided that ▇▇▇▇▇▇▇.▇▇▇
will fulfill Excite@Home existing contractual obligations on
the ▇▇▇▇▇▇▇.▇▇▇ Site. ▇▇▇▇▇▇▇.▇▇▇ will recognize the revenues
and Excite@Home will recognize the expenses from the existing
contractual obligations. In that event, Excite@Home will no
longer sell additional advertising inventory on the
▇▇▇▇▇▇▇.▇▇▇ Site and there will be no further revenue
guarantees or ad serving from Excite@Home.
i) ▇▇▇▇▇▇▇.▇▇▇ will receive Most Favored Nations status for sales
commissions and ad serving costs, in comparison to any other
material deal that has a combination of revenue guarantees for
content and applications and revenue guarantees for the
selling of a third party site based on guaranteed RPMs. In the
event that ▇▇▇▇▇▇▇.▇▇▇ chooses to sell the ▇▇▇▇▇▇▇.▇▇▇ Site,
then ▇▇▇▇▇▇▇.▇▇▇ will receive Most Favored Nations status for
sales commissions and ad serving costs, in comparison to any
other material deal that has annual revenue guarantees for
content and applications of $750,000 and above.
11. REVENUES FOR EXCITE@HOME
a) ▇▇▇▇▇▇▇.▇▇▇ will pay Excite@Home on a quarterly basis [***]
percent ([***]%) of the "Net Revenues" that accrues to
▇▇▇▇▇▇▇.▇▇▇ from Excite@Home users during the term of this
Letter of Intent from ecommerce opportunities, including but
not limited to, merchandise, travel, events packages and
auctions. "Net Revenues" means ecommerce related transaction
revenue (excluding ticket sales), less costs directly
allocated to the goods sold, that accrues to ▇▇▇▇▇▇▇.▇▇▇ from
the Co-Branded Ticketing Application during the term of the
applicable payment period. ▇▇▇▇▇▇▇.▇▇▇ sourced and initiated
ecommerce transactions will be distributed throughout the
Excite Network in relevant channels and applications, subject
to contractual obligations. For instance, merchandise will be
promoted in the Searchable Product Application which will
reside in the Shopping Channel and sports events packages will
be promoted in the Sports Channel.
b) ▇▇▇▇▇▇▇.▇▇▇ will pay Excite@Home on a quarterly basis a
commission of $[***] per ticket. The commission to Excite@Home
is intended to represent [***] percent ([***]%) of the gross
margin on tickets sold over the Internet. In the event that
the gross margin on tickets sold over the Internet improves,
Excite will, on an annual basis adjust the dollar commission
based on the increased gross margin, so that Excite's
commission is equal to [***]% of ▇▇▇▇▇▇.▇▇▇'s gross margin.
c) In addition to the payments above ▇▇▇▇▇▇▇.▇▇▇ will pay to
Excite@Home or Matchlogic, as provided in the Definitive
Agreement [***] dollars ($[***]) as shown in TABLE IV, such
payment will be made in equal quarterly installments due and
payable on the last day of each quarter, with the first
payment due on October 29, 1999; provided, however, the full
payment of $[***] will be accelerated and become due and
payable in full immediately upon the closing of an investment
or other financing in the amount of $[***] by Excite@Home in
▇▇▇▇▇▇▇.▇▇▇. , for a variety of MatchLogic services which may
include email delivery to users and email response tracking
and reporting to sponsors, advertisers, registered user
database management and maintenance, lead generation, custom
sweepstakes, modeling and user profiling. MatchLogic services
will be further detailed in the Definitive Agreement.
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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d) In addition to the payments above ▇▇▇▇▇▇▇.▇▇▇ will pay
Excite@Home [***] dollars ($[***]) as shown in TABLE IV for
distribution on the Excite Network as described in Section 3.
Payment will be made in equal quarterly installments due and
payable on the last day of each quarter, with the first
payment due on October 29, 1999; provided, however, the full
payment of $[***] will be accelerated and become due and
payable in full immediately upon the closing of an investment
or other financing in the amount of $[***] by Excite@Home in
▇▇▇▇▇▇▇.▇▇▇..
TABLE IV
YEAR 1 YEAR 2 YEAR 3
------ ------ ------
MatchLogic Services [***] [***] [***]
Distribution* [***] [***] [***]
----- ----- -----
TOTAL [***] [***] [***]
===== ===== =====
-----------
* Based on the Minimum Impression Guarantee show in TABLE 1
which includes Front Page, Programmed Search Results,
Keyword Banners, Channels, Applications and Other Forms of
Distribution.
12. TERMINATION
a) Either party may terminate if the other party materially
breaches the Letter of Intent and the breach remains uncured
for a period of ninety (90) days.
b) Upon a Change of Control Transaction with respect to
▇▇▇▇▇▇▇.▇▇▇, where the acquiring party in such transaction is
a "Competitor" as defined below, then ▇▇▇▇▇▇▇.▇▇▇ agrees as
follows: (i) the ▇▇▇▇▇▇▇.▇▇▇ branding on the Co-Branded
Ticketing Application will remain unchanged and no additional
or different branding, other than Excite@Home branding, will
be displayed; (ii) content and functionality of the
▇▇▇▇▇▇▇.▇▇▇ and Co-Branded Ticket Application will remain at
least at the level that it exists at the time of the Change of
Control Transaction; and (iii) ▇▇▇▇▇▇▇.▇▇▇ will make available
to Excite@Home all content and functionality available on the
▇▇▇▇▇▇▇.▇▇▇ Site (or subsequent site). Failure to meet the
criteria stated above at any time after a Change of Control
Transaction is a material breach of this Letter of Intent.
c) For the purposes hereof, (i) a "Competitor" shall mean an
entity which (a) acts as a provider of a broad offering of
internet delivery, content, search, directory and user
services to a broad consumer market and (b) is competitive
with Excite@Home's principal business; (ii) "Change of Control
Transaction" shall mean with respect to a particular
corporation (a) any merger, share exchange or other
acquisition (or series of related transactions of such nature)
as a result of which the holders of voting securities of the
corporation immediately prior thereto do not continue to own
beneficially voting securities representing 50% or more of the
total voting securities of the corporation (or any successor
entity or parent corporation) immediately thereafter or (b) a
sale or transfer of all or substantially all of a
corporation's assets.
d) Upon termination of this Letter of Intent by ▇▇▇▇▇▇▇.▇▇▇ based
on material breach by Excite@Home, or by Excite@Home upon a
Change of Control Transaction under Section 12(b) above,
Excite@Home shall pay to ▇▇▇▇▇▇▇.▇▇▇ within thirty (30) days
of the day on which display of Content ceases an amount equal
to the prorated portion of the Distribution Fee based on the
number of months remaining in the Term, plus the portion of
the MatchLogic fees for which services have not been
delivered.
e) Excite@Home may terminate selling advertising, revenue
guarantees and ad serving on ▇▇▇▇▇▇▇.▇▇▇ Site if ▇▇▇▇▇▇▇.▇▇▇
page view fall below 60% of management projections in any one
quarter as shown in TABLE III.
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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f) ▇▇▇▇▇▇▇.▇▇▇ may terminate this Letter of Intent if the Excite
Network is not one of the top portals in terms of tools and
functionality, based on commercially reasonable standards.
g) Excite@Home may terminate this Letter of Intent if ▇▇▇▇▇▇▇.▇▇▇
is not one of the top providers in terms of online ticketing
functionality and tools (excluding ticket inventory), based on
commercially reasonable standards.
13. GOVERNANCE
Excite@Home will have equal board representation on the ▇▇▇▇▇▇▇.▇▇▇
Board of Directors as any other Internet portal or Excite competitor
(list to be provided). This right of representation is unrelated to and
independent of any ownership interest Excite@Home may have in
▇▇▇▇▇▇▇.▇▇▇.
14. WARRANTY AND INDEMNITY
a) ▇▇▇▇▇▇▇.▇▇▇ will defend, indemnify and hold harmless
Excite@Home from claims arising from the content or
transactions, or claims that its Content or transactions
related thereto infringe or violate any federal, state or
local law, third party copyright, patent, trade secret,
trademark, right of publicity or right of privacy or contains
any defamatory content.
b) Excite@Home will defend, indemnify and hold harmless
▇▇▇▇▇▇▇.▇▇▇ from claims arising from content on the Excite
Network other than the content or transactions provided by, or
on behalf of ▇▇▇▇▇▇▇.▇▇▇ including claims that the content
infringes or violates any federal, state or local law, third
party copyright, patent, trade secret, trademark, right of
publicity or right of privacy or contains any defamatory
content.
15. LIMITATION OF LIABILITY
Except for liability for indemnity, neither party will have liability
for any damages other than direct damages. Each party's liability will
be limited to the amounts actually paid by ▇▇▇▇▇▇▇.▇▇▇.
16. GENERAL
a) With each payment, each party will provide the other
documentation reasonably detailing the calculation of the
payment. Each party will maintain accurate records with
respect to the calculation of all payments due under this
Letter of Intent. No more than once per year, either party may
cause an independent Certified Public Accountant to inspect
the records of the other reasonably related to the calculation
of such payments. The fees charged by such Certified Public
Accountant in connection with the inspection will be paid by
the party initiating the audit, unless the Certified Public
Accountant discovers an underpayment of greater than 10%, in
which case the other party will pay such fees.
b) This Letter of Intent is the complete and exclusive agreement
between the parties with respect to the subject matter hereof,
superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Letter
of Intent may only be modified, or any rights under it waived,
by a written document executed by both parties.
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c) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Letter of
Intent the parties will first attempt to resolve the
dispute(s) through good faith negotiation or mediation. In the
event that the dispute(s) cannot be resolved through good
faith negotiation or mediation, the parties will refer the
dispute(s) to a mutually acceptable arbitrator for hearing in
the county in which Excite has its principal place of business
under the then current rules of the American Arbitration
Association.
▇▇▇▇▇▇▇.▇▇▇, INC. EXCITE, INC.
By: By:
--------------------------- -------------------------
Name: Name:
--------------------------- -------------------------
Title: Title:
--------------------------- -------------------------
Date: Date:
--------------------------- -------------------------
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