CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
Exhibit 10.9
REALNAME SALES REPRESENTATIVE AGREEMENT
BETWEEN CENTRAAL CORPORATION AND NETWORK SOLUTIONS, INC.
This RealName Sales Representative Agreement ("AGREEMENT") is made as
of DECEMBER 8, 1998 ("EFFECTIVE DATE") by and between Network Solutions, Inc.
("NSI") and Centraal Corporation ("CENTRAAL").
WHEREAS, NSI is the leading Internet domain name registration services
provider worldwide, and also provides Internet consulting services to businesses
that desire to establish or enhance their Internet presence; and
WHEREAS, Centraal is in the business of providing "REALNAMES SERVICES,"
which allow users to access sites on the World Wide Web that are registered with
Centraal's service by using an appropriate trademark, brand name, short word or
phrase in lieu of a Uniform Resource Locator ("URL"); and
WHEREAS, the parties wish to establish the terms and conditions for a
relationship under which NSI will act as Centraal's sales representative to
provide RealNames Services.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the terms below
have the following meanings:
1.1 "ACTIVE" means that a RealName Subscription (i) has been
approved and adjudicated by Centraal for listing in the RealName database and
(ii) fully paid for by the subscriber. For example, a RealName Subscription that
was Sold by NSI prior to December 31, 1999, but which was not renewed prior to
December 31, 2000, will be considered "Active" as of December 31, 1999, but not
"Active" as of December 31, 2000.
1.2 "CHANGE OF CONTROL OF CENTRAAL" means any merger,
consolidation or reorganization of Centraal with or into any other entity or
entities, or any sales of all or substantially all of the assets of Centraal, or
a series of related similar such transactions in which the holders of the
Company's capital stock on the Effective Date will, as a result of such
transaction, hold less than 50% of the voting power of the surviving entity
after the consummation of the transaction.
1.3 "CUSTOMER INFORMATION" means the following customer
contact information, to be collected in connection with RealName Subscriptions:
contact name, address, email address,
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
telephone and credit card number. "Customer Information" does not include
customer contact information collected by NSI in connection with NSI's domain
name registrations.
1.4 "IMPLEMENTATION DATE" means that date on which Centraal
reasonably determines that NSI is capable of meeting the service requirements
and quality criteria set forth in ATTACHMENT 1.
1.5 "MY REALNAME CUSTOMERS" means persons or entities who are
provided a Web page through a community service such as Tripod or Geocities, and
in connection therewith and subscribe to RealNames Services from Centraal free
of charge.
1.6 "NSI AFFILIATE" means any third party that is (i) an
Internet Service Provider or Web hosting company and (ii) has been identified to
Centraal in the report described in Section 2.2 as currently participating in
NSI's "Alliance," "Premier," or "Affiliate" programs. In no event will
LookSmart, Compaq Computer Corporation ("COMPAQ"), Compaq's subsidiary,
AltaVista Search Services, Inc., Infoseek, Bigfoot International, Inc.,
Neoplanet or ICQ, or any of such parties' affiliates, sublicensees or resellers
be deemed "NSI Affiliates."
1.7 "NSI CUSTOMERS" means those customers to whom NSI has Sold
RealNames Services.
1.8 "NON-NSI SOLD CUSTOMERS" means all customers of RealNames
Services, other than NSI Customers, Key Accounts, and My RealName Customers.
1.9 "REALNAME INFORMATION" means the following information
comprising the RealName object, to be collected in connection with RealName
Subscriptions: RealName, URL, organization, Geocode/region code, description,
language, RealName category, trademarks and suitability.
1.10 "SOLD" means that a subscription to a RealName was (i)
solicited by NSI on Centraal's behalf, (ii) approved and adjudicated by Centraal
for listing in the RealName database, and (iii) fully paid for by the
subscriber.
2. SALE OF THE REALNAMES SERVICES.
2.1 APPOINTMENT. Subject to Section 2.5, Centraal hereby
appoints NSI as Centraal's [*] sales representative to solicit subscriptions
for RealNames Services ("REALNAME SUBSCRIPTIONS"). NSI will have the right to
appoint NSI Affiliates as sub-representatives, provided that NSI remains
primarily responsible for the performance of such NSI Affiliates, and
appoints such sub-representatives according to a written agreement as
protective of Centraal as this Agreement.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
2.2 [*]
2.3 GOVERNMENT APPROVALS. In the event that, subsequent to the
Effective Date, any governmental approval is required in order for NSI to offer
RealNames with domain names, and such approval is not obtained within 90 days
after a party first receives notice of such necessary approval, Centraal's
obligations under Section 2.2 will cease. [*]
2.4 SALES. NSI and the NSI Affiliates (a) shall use
reasonable efforts to promote the sale of RealName Subscriptions, and shall
solicit sales for RealName Subscriptions only according to the terms of
Centraal's then-current subscription agreement; (b) shall not make any
representations or warranties regarding the RealNames Services, other than with
the prior written approval of Centraal. Notwithstanding the foregoing, NSI may
represent that the RealNames Services allow users to access sites on the World
Wide Web that are registered with Centraal's service by using an appropriate
trademark, brand name, short word or phrase in lieu of a Uniform Resource
Locator without the prior written consent of Centraal. Without limiting the
foregoing, NSI, at its sole discretion, may solicit sales of RealName
Subscriptions customers through its current inbound telesales operation.
2.5 KEY ACCOUNTS. NSI acknowledges that Centraal markets
RealNames Services directly to certain key customers who pay for such services
on a per resolution basis ("KEY ACCOUNTS"). Centraal shall report quarterly in
writing to NSI its Key Accounts. NSI shall not solicit sales of RealName
Subscriptions from Key Accounts who have been identified in advance to NSI by
Centraal, and Centraal will not be obligated to (a) accept RealName
Subscriptions Sold to such previously identified Key Accounts by NSI, or (b) pay
NSI any Commission for any RealName Subscriptions Sold to such previously
identified Key Accounts by NSI.
2.6 ORDERS. Orders for RealNames Services by customers
solicited by NSI and NSI Affiliates will take place through a series of HTML
registration pages to be developed according to specifications agreed upon by
the parties, or as otherwise agreed by the parties. These pages will be
co-branded (e.g., "RealNames from Network Solutions") as agreed by the
parties in advance in writing. Notwithstanding the foregoing, NSI will have
complete control over all design and functional aspects of all NSI Web sites.
All completed orders for the RealNames Services will be processed by Centraal
within the time period set forth in Attachment 2. Centraal shall perform the
registration and send via electronic mail Centraal's then-current
acknowledgments, software browser plug-ins or other customer materials to the
customer and
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
will provide NSI with information regarding orders in process and processed
orders in a timely manner to assist NSI to perform the customer support
services set forth in Section 3 below. All RealName Subscriptions Sold by NSI
and NSI Affiliates are subject to acceptance by Centraal. Centraal may accept
or reject any RealName Subscription in its sole discretion.
2.7 FEES. Centraal shall set the subscription fees, if any,
for the initial one-year term and all one-year renewal terms to be charged to
customers for RealName Subscriptions Sold by NSI and NSI Affiliates (the "NSI
CUSTOMER SUBSCRIPTION FEES"). NSI shall collect the NSI Customer Subscription
Fees, if any, on Centraal's behalf, and shall pay to Centraal the full amount of
all NSI Customer Subscription Fees, less any amounts for refunds, credit card
chargebacks and bad debt, and less Commissions earned by NSI as set forth in
Section 2.8 below, less fees earned by NSI as set forth in Section 3.2 below, no
later than 10 days after the quarter in which the related RealName Subscriptions
are first Sold and the NSI Customer Subscription Fees are collected. In no event
will NSI withhold commissions under Section 2.8 for NSI Customer Subscription
Fees that are refunded or uncollectible.
2.8 COMMISSIONS. NSI may retain (or, if the parties so agree,
Central shall pay to NSI) a commission ("COMMISSION") for each RealName
Subscription from which a NSI Customer Subscription Fee, if any, arose as
follows:
[*] for the initial one-year term of any RealName
Subscription Sold by NSI or an NSI Affiliate, the greater of (i) [*], or (ii)
[*] of each NSI Customer Subscription Fee[*]
[*]
For the purposes of this Section 2.8, a RealName Subscription that is not
renewed upon its renewal date, but is renewed within 90 days from the date
thereof, will be deemed a "renewal" subject to the Commission described in
subsection (b). Notwithstanding the foregoing, in the event that Centraal
changes the term of the RealName Subscription or any renewal thereof, the
parties agree to modify the commissions due to NSI.
2.9 TERM; TERMINATION. The terms of this Section 2 will remain
in effect from the Effective Date until the later of (a) December 31, 2000, if
there is no Change of Control of Centraal before December 31, 2000; and (b)
December 31,2001, if there is a Change of Control of Centraal before December
31, 2000; unless terminated as set forth in Section 8.2. This Agreement will
automatically renew for an additional 2-year term if, at the end of the initial
term described above, there are outstanding at least 150,000 RealName
Subscriptions that (i) have been Sold by NSI and (ii) are Active.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
2.10 [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
2.11 ADDITIONAL FEES. Centraal shall pay to NSI, no later
than 10 days after the end of each calendar quarter, [*] of any fee that is
based upon resolution traffic and which is received by Centraal from
customers with RealName Subscriptions who pay for RealNames Services on a
"per-resolution" basis; provided, however, that Centraal shall pay no such
fee for amounts collected by Centraal from customers with RealName
Subscriptions due to resolution traffic from Compaq, LookSmart, Bigfoot
International, Inc., Neoplanet, ICQ, or Infoseek pursuant to agreements
between Centraal and such parties.
2.12 DATABASE ACCESS. NSI hereby grants to Centraal a
non-exclusive, non-transferable license to allow Centraal reasonable access and
use of the NSI registry "WHOIS" and "RWHOIS" databases, and any successor
databases with similar capabilities, via FTP, such that Centraal shall have
access to and use of information relating to all existing domain names and the
ownership of such domain names, for the sole purpose of maintaining and
resolving a comprehensive listing of Web companies in Centraal's "RealNames
Index 1," an index editorially managed by Centraal and will not be used as a
separate product or directory service or as an enhancement to the RealName Index
1 or for any other purpose.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
2.13 REVIEW. NSI and Centraal will meet quarterly in a "Senior
Management Review" meeting to discuss the development, planning, implementation
and results of all joint marketing, sales and customer service activities under
this Agreement.
2.14 DOMAIN NAME SALES. Centraal will generate leads for
Domain Names sales from the RealNames subscription site at URL ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
by placing a hypertext link from such site to NSI's site at URL
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
2.15 TECHNICAL ADVISORY BOARD. Centraal shall appoint ▇▇▇▇▇
▇▇▇▇▇▇▇▇ to the Centraal Corporation technical advisory board for a one-year
term commencing on January 1, 1999, subject to ▇▇. ▇▇▇▇▇▇▇▇ executing Centraal's
standard form of technical advisory board agreement. The parties agree that no
options or other consideration will be granted by Centraal to NSI or ▇▇.
▇▇▇▇▇▇▇▇ in connection with such participation on the technical advisory board,
notwithstanding any plan or program of Centraal to issue stock, options or other
consideration to members of its technical advisory board.
3. CUSTOMER SERVICE.
3.1 SERVICES: QUALITY.
(a) SUPPORT. Beginning no later than June 1, 1999,
NSI shall provide customer support, help desk and related services according to
the plan described in ATTACHMENT 1 ("FIRST LEVEL SUPPORT") in a timely manner,
as required by customers of the RealNames Services. NSI may subcontract with a
third party for the provision of such services with Centraal's prior written
approval, not to be unreasonably withheld. As between the parties, Centraal is
solely responsible for providing the necessary services to adjudicate and
approve orders for RealName Subscriptions. In addition, Centraal will provide
adjudication-related and other mutually agreed upon support as described in
ATTACHMENT 2 ("SECOND LEVEL SUPPORT") for all customers of RealNames Services.
Centraal shall provide such Second Level Support in a timely manner, as required
by such customers.
(b) QUALITY CRITERIA. The services to be provided by
NSI pursuant to 3.1 (a) must meet the quality criteria set forth in ATTACHMENT
1.
(c) QUARTERLY REVIEW. The description of services to
be provided by NSI and the quality criteria that NSI must meet in the
performance of such services will be subject to quarterly changes mutually
agreed upon by Centraal and NSI, which agreement will not be unreasonably
withheld by either party.
(d) PHASE-IN PERIOD. For a period of 60 days
commencing on the date NSI begins to provide services under Section 3.1 (a)
("PHASE-IN PERIOD"), NSI shall perform First Level Support only for NSI
Customers. During the Phase-in Period, in the event Centraal
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
reasonably determines that NSI is not capable of meeting the service
requirements and quality criteria set forth in Attachment 1, then NSI will have
a reasonable period, not to exceed 90 days, to meet such service requirements
and quality criteria. If, after such 90 day period, NSI is not meeting the
service requirements or quality criteria set forth in ATTACHMENT 1, then
Centraal may immediately upon written notice terminate the right and obligations
set forth in this Section 3. Commencing on the Implementation Date, NSI shall
provide First Level Support for all RealName Subscription customers (excluding
Key Accounts and My RealName Customers).
(e) PARITY. After the Implementation Date, NSI
will provide the services described in Section 3.1 to Non-NSI Sold Customers
in the same manner and of the same quality as NSI will provide such services
to customers to whom NSI has Sold RealName Subscriptions.
3.2 FEES. In consideration of the services to be provided by
NSI under Section 3.1, NSI may withhold from the Subscription Fees, if any, to
be paid to Centraal pursuant to Section 2.7 of this Agreement (or, if the
parties so agree, Centraal shall pay to NSI):
[*] for the initial one year period of each RealName
Subscription approved and adjudicated by Centraal after the Effective Date, the
greater of (i) [*] of the Subscription Fee or (ii) [*]
[*]
During the Phase-In Period, NSI may only withhold such amounts for RealName
Subscriptions accepted by Centraal for NSI Customers. After the Phase-in Period,
NSI may also withhold such amounts for RealName Subscriptions accepted by
Centraal for Non-NSI Sold Customers. In no event will NSI withhold commissions
under this Section 3.2 for Subscription Fees that are refunded or uncollectible.
3.3 TERM; TERMINATION. The terms of this Section 3 will remain
in effect from the Effective Date until (a) December 31, 2002, if there is no
Change of Control of Centraal before December 31, 2002; and (b) December 31,
2003, if there is a Change of Control of Centraal before December 31, 2002;
unless earlier terminated under Section 3.1 (d), this Section 3.3, or Section
8.2. Notwithstanding the foregoing, if, at any time, Centraal is not reasonably
satisfied that NSI has provided customer service in accordance with the
standards set forth in ATTACHMENT 1, which lack of quality is not cured by NSI
within 60 days after written notice thereof by Centraal, then Centraal, in its
sole discretion, may upon 30 days' prior written notice to NSI, terminate all
rights and obligations set forth in this Section 3. In the event that,
subsequent to the dates set forth in Section 2.10, Centraal fails to maintain a
quantity of total Active RealName Subscriptions equal to 2 times the lesser of
(i) the target number of Active RealName Subscriptions Sold by NSI by the
corresponding dates set forth in Section 2.10, or (ii) the actual
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
number of Active RealName Subscriptions Sold by NSI as of such date, then NSI
may terminate all right and obligations set forth in this Section 3 upon 30
days' prior written notice.
4. COMMON STOCK WARRANTS.
4.1 MILESTONES. Upon the achievement of each of the following
milestones (each, a "MILESTONE NUMBER") by the dates set forth below (each, a
"MILESTONE DATE"), Centraal will issue to NSI a non-transferable (other than by
merger or consolidation or to a transferee of all or substantially all of the
assets of NSI) warrant in the form set forth in ATTACHMENT 3 (a "WARRANT"),
exercisable for 120 days (except as otherwise set forth herein), to purchase the
number of shares ("WARRANT SHARES") of Centraal's Common Stock, par value $0.001
per share ("COMMON STOCK") set forth below; provided, however, that (i) in no
event will NSI be issued Warrants hereunder to purchase an aggregate number of
Warrant Shares greater than 4,196,726 (subject to adjustment for stock splits,
stock dividends, recapitalizations, etc.); and (ii) no Warrant will be issued
for any Milestone not achieved by its respective Milestone Date:
(a) if, on or prior to December 31, 1999, at least
50,000 RealNames have been Sold by NSI, then Centraal shall issue to NSI a
Warrant to purchase a number of Warrant Shares equal to 423,912 (subject to
adjustment for stock splits, stock dividends, recapitalizations, etc.)
promptly after such date;
(b) if, on or prior to December 31, 2000, at least
150,000 RealNames have been Sold by NSI, then Centraal shall issue to NSI a
Warrant to purchase a number of Warrant Shares equal to 847,824 (subject to
adjustment for stock splits, stock dividends, recapitalizations, etc.)
promptly after such date;
(c) if, on or prior to December 31,2001, at least
375,000 RealNames have been Sold by NSI, then Centraal shall issue to NSI a
Warrant to purchase a number of Warrant Shares equal to 1,271,735 (subject to
adjustment for stock splits, stock dividends, recapitalizations, etc.)
promptly after such date; and
(d) if, on or prior to December 31, 2001, Centraal
enters into an agreement providing for the distribution of RealNames through
any of the following companies, then Centraal shall issue to NSI a Warrant to
purchase a number of Warrant Shares equal to 1,271,735 (subject to adjustment
for stock splits, stock dividends, recapitalizations, etc.) for each such
agreement promptly after the closing date of each such transaction: Netscape,
Microsoft, Yahoo, Excite, Lycos, or AOL. The parties agree that NSI and
Centraal will make joint and separate presentations and proposals to such
companies. To facilitate such and other transactions involving Centraal, NSI
will commit one full time business development manager within 120 days from
the date hereof, and one additional full time business development manager no
later
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
than January 1, 2000. NSI shall pay employment compensation and other costs
associated with such business development managers.
4.2 EXERCISE PRICE. The exercise price for any Warrant issued
pursuant to Section 4.1, subsections (a)-(d) above will be as follows (subject
to adjustments for stock splits, stock dividends, recapitalizations, etc.):
(a) Any Warrant issued on or prior to December 31,
1998, will be exercisable at a price of $1.65 per Warrant Share;
(b) Any Warrant issued after December 31, 1998 and
on or prior to March 31, 1999, will be exercisable at a price of $1.86 per
Warrant Share;
(c) Any Warrant issued after March 31, 1999 and on
or prior to June 30, 1999, will be exercisable at a price of $2.09 per
Warrant Share;
(d) Any Warrant issued after June 30, 1999 and on or
prior to September 30, 1999, will be exercisable at a price of $2.35 per Warrant
Share;
(e) Any Warrant issued after September 30, 1999 and
on or prior to December 31, 1999, will be exercisable at a price of $2.64 per
Warrant Share;
(f) Any Warrant issued after December 31, 1999 and on
or prior to March 31, 2000, will be exercisable at a price of $2.97 per Warrant
Share;
(g) Any Warrant issued after March 31, 2000 and on or
prior to June 30, 2000, will be exercisable at a price of $3.35 per Warrant
Share;
(h) Any Warrant issued after June 30, 2000 and on
or prior to September 30, 2000, will be exercisable at a price of $3.76 per
Warrant Share;
(i) Any Warrant issued after September 30, 2000
and on or prior to December 31, 2000, will be exercisable at a price of $4.23
per Warrant Share;
(j) Any Warrant issued after December 31, 2000 and
on or prior to March 31, 2001, will be exercisable at a price of $4.76 per
Warrant Share;
(k) Any Warrant issued after March 31,2001 and on
or prior to June 30, 2001, will be exercisable at a price of $5.36 per
Warrant Share;
(l) Any Warrant issued after June 30, 2001 and on
or prior to September 30, 2001, will be exercisable at a price of $6.03 per
Warrant Share; and
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
(m) Any Warrant issued after September 30, 2001
and on or prior to December 31,2001, will be exercisable at a price of $6.78
per Warrant Share.
4.3 IPO WARRANTS. In addition to the provisions above relating
to the issuance of Warrants, if Centraal files a registration statement pursuant
to the Securities Act of 1933, as amended, for an initial public offering of its
Common Stock (an "IPO"), or an amendment thereto, which filing contains the
initial price range per share for such offering (the "PRICE RANGE FILING"), and
on such date of filing (the "PRICE RANGE FILING DATE"), at least the Pro Rata
Number (as defined below) of RealNames have been Sold by NSI, then Centraal
shall issue to NSI promptly after such date, a non-transferable (other than by
merger or consolidation or to a transferee of all or substantially all of the
assets of NSI) Warrant (the "IPO WARRANT") to purchase that number of Warrant
Shares (subject to adjustment for stock splits, stock dividends,
recapitalizations, etc.) which, when aggregated with all other Warrant Shares
issued or issuable upon exercise of Warrants issued hereunder, will equal
4,196,726. Centraal shall provide NSI with notice of its intention to make a
Price Range Filing as soon as practical prior to such filing. The IPO Warrant
and any other outstanding unexercised Warrants issued hereunder must be
exercised within 10 days after the Price Range Filing Date. For purposes of this
paragraph, the "PRO RATA NUMBER" shall equal:
A + [(B-A) x (C/365)]
Where:
A = the Milestone Number associated with the most
recent previous Milestone Date, if any, that occurred
prior to such Price Range Filing;
B = the Milestone Number associated with the next
occurring Milestone Date following the Price Range
Filing Date; and
C = the number of days that have elapsed or have
partially elapsed since the previous Milestone Date.
The exercise price for the IPO Warrant will be:
(i) with respect to the following number
of Warrant Shares, the then appropriate exercise price determined in accordance
with Section 4.2 above:
(C/365 x D);
where,
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
D = the number of Shares subject to a Warrant upon
achievement of the next Milestone Number; and
(ii) with respect to all remaining
Warrant Shares under the IPO Warrant, 90% of the low end of the price range
per share contained in the Price Range Filing.
Notwithstanding anything herein to the contrary, no Warrant, including
the IPO Warrant, shall be issued hereunder after December 31,2001.
5. OTHER ARRANGEMENTS. Centraal and NSI may, from time to time, each
acting in its sole business discretion, negotiate the following business
arrangements, which would be memorialized in a written agreement separate from
this Agreement:
(a) joint proposals to develop key strategic
relationships in "smart browsing," or cascaded name navigation or search
solutions, with Netscape, Microsoft, Yahoo and AOL, where appropriate;
(b) joint marketing and sales of Domain Names,
RealNames, and related traffic-building and tracking services, through direct
sales to Key Accounts by Centraal;
(c) joint marketing, sales and development of
domain names, Centraal's "Personal Names" product, and related personal
naming and identity services; or
(d) joint development of business and personal
directory services, using Domain Names and RealNames.
6. NON-DISCLOSURE. The parties agree to the provisions of this Section
6 and confirm their prior agreement that the terms set forth in this Section 6
also apply to any information disclosed by one party to another in the course of
negotiating this Agreement or the Draft Memorandum of Understanding between the
parties dated September 25, 1998.
6.1 "CONFIDENTIAL INFORMATION" means any information disclosed
by either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including without limitation
documents, prototypes, samples, plants and equipment), which is designated as
"Confidential," "Proprietary" or some similar designation. Information
communicated orally will be considered Confidential Information if such
information is confirmed in writing as being Confidential Information within 30
days after the initial disclosure. Confidential Information may also include
information disclosed to a disclosing party by third parties. Confidential
Information will not, however, include any information which (i) was publicly
known and made generally available in the public domain prior to the time of
disclosure by the disclosing party; (ii) becomes publicly known and made
generally available after disclosure by the disclosing party to the receiving
party through no action or inaction of the
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
receiving party; (iii) is already in the possession of the receiving party at
the time of disclosure by the disclosing party as shown by the receiving party's
files and records immediately prior to the time of disclosure; (iv) is obtained
by the receiving party from a third party without a breach of such third
party's obligations of confidentiality; (v) is independently developed by the
receiving party without use of or reference to the disclosing party's
Confidential Information, as shown by documents and other competent evidence in
the receiving party's possession; or (vi) is required by law to be disclosed by
the receiving party, provided that the receiving party gives the disclosing
party prompt written notice of such requirement prior to such disclosure and
assistance in obtaining an order protecting the information from public
disclosure. NSI and Centraal further agree that all Customer Information and
RealName Information is Confidential Information of Centraal, notwithstanding
whether such Customer Information or RealName Information was collected by
Centraal, NSI or other parties.
6.2 NON-USE AND NON-DISCLOSURE. Each party agrees not to use
any Confidential Information of the other party for any purpose except to
exercise its right and perform its obligations under this Agreement. Each party
agrees not to disclose any Confidential Information of the other party to third
parties or to such party's employees, except to those employees of the receiving
party with a need to know. Neither party shall reverse engineer, disassemble or
decompile any prototypes, software or other tangible objects which embody the
other party's Confidential Information and which are provided to the party
hereunder.
6.3 MAINTENANCE OF CONFIDENTIALITY. Each party shall take
reasonable measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information of the other party. Without
limiting the foregoing, each party shall take at least those measures that it
takes to protect its own most highly confidential information and shall ensure
that its employees who have access to Confidential Information of the other
party have signed a nonuse and non-disclosure agreement in content similar to
the provisions hereof, prior to any disclosure of Confidential Information to
such employees. Each party shall make copies of the Confidential Information of
the other party only as necessary to fulfill its obligations hereunder, unless
previously approved in writing by the other party. Each party shall reproduce
the other party's proprietary rights notices on any such approved copies, in the
same manner in which such notices were set forth in or on the original.
6.4 THIRD-PARTY INFORMATION. Each party shall not use in the
course of its performance hereunder, and shall not disclose to the other party,
any confidential information of any third party (including without limitation
competitors of either party) unless the party using or disclosing such
information is authorized in writing by such third party to do so.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
7. TRADEMARKS AND TRADE NAMES
7.1 CENTRAAL TRADEMARKS.
(a) USE. Centraal will provide NSI with a copy of
the authorized "Real Name System" logos in JPEG, BMP and GIF format. During the
term of this Agreement, NSI may indicate to the public that it is an authorized
representative of the RealNames Services and advertise the RealNames Services
under the trademarks, marks, and trade names that Centraal may adopt from time
to time ("CENTRAAL MARKS"). NSI may sublicense such rights to NSI Affiliates in
connection with the activities of such NSI Affiliates as sub-representatives of
NSI, but only pursuant to a written agreement containing substantially the terms
of this Section 7.
(b) APPROVAL OF REPRESENTATIONS. All representations
of the Centraal Marks that NSI intends to use must be exact copies of those used
by Centraal or shall first be submitted to Centraal for approval of design,
color, and other details.
(c) ASSIGNMENT OF GOODWILL. If NSI or any NSI
Affiliate, in the course of performing its services hereunder, acquires any
goodwill or reputation in any of the Centraal Marks, all such goodwill or
reputation will automatically vest in Centraal when and as, on an on-going
basis, such acquisition of goodwill or reputation occurs, as well as at the
expiration or termination of this Agreement, without any separate payment or
other consideration of any kind to NSI or the NSI Affiliates, and NSI shall,
and shall cause each NSI Affiliate to, take all such actions to effect such
vesting. NSI shall not contest the validity of any of the Centraal Marks or
Centraal's exclusive ownership of them. During the term of this Agreement,
NSI shall not adopt, use, or register, whether as a corporate name,
trademark, service ▇▇▇▇ or other indication of origin, any of the Centraal
Marks, or any word or ▇▇▇▇ confusingly similar to them in any jurisdiction.
7.2 NSI TRADEMARKS.
(a) USE. NSI will provide Centraal with a copy of
NSI's logo in JPEG, BMP and GIF format. During the term of this Agreement,
Centraal may display the hyperlink referenced in Section 2.14 using the
trademarks, marks, and trade names that NSI may adopt from time to time ("NSI
MARKS").
(b) APPROVAL OF REPRESENTATIONS. All
representations of the NSI Marks that Centraal intends to use must be exact
copies of those used by NSI or shall first be submitted to NSI for approval
of design, color, and other details.
(c) ASSIGNMENT OF GOODWILL. If Centraal, in the
course of exercising the license in Section 7.2(a), acquires any goodwill or
reputation in any of the NSI Marks, all such
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
goodwill or reputation will automatically vest in NSI when and as, on an
on-going basis, such acquisition of goodwill or reputation occurs, as well as at
the expiration or termination of this Agreement, without any separate payment or
other consideration of any kind to Centraal, and Centraal shall take all such
actions to effect such vesting. Centraal shall not contest the validity of any
of the NSI Marks or NSI's exclusive ownership of them. During the term of this
Agreement, Centraal shall not adopt, use, or register, whether as a corporate
name, trademark, service ▇▇▇▇ or other indication of origin, any of the NSI
Marks, or any word or ▇▇▇▇ confusingly similar to them in any jurisdiction.
8. TERM AND TERMINATION
8.1 TERM. This Agreement will commence in effect on the
Effective Date and terminate upon the later of the termination of the
obligations set forth in Section 2, or the termination of the obligations set
forth in Section 3, hereof; except Sections 6, 7.l(c), 7.2(c), 8.3, 9, 10, and
11, which will survive any expiration or termination of this Agreement.
8.2 TERMINATION. If either party defaults in the performance
of any provision of this Agreement, then the non-defaulting party may give
written notice to the defaulting party that if the default is not cured within
30 days the Agreement will be terminated. If the non-defaulting party gives such
notice and the default is not cured during the 30 day period, then the Agreement
will automatically terminate at the end of that period. This Section 8.2 will
not be construed to limit any party's right to terminate Section 2 or Section 3
of this Agreement, as described under Sections 2.9 and 3.3.
8.3 RETURN OF MATERIALS. Each party shall return all
information and materials embodying confidential information provided or
delivered under this Agreement within 30 days after the termination of this
Agreement.
9. INDEMNIFICATION: REMEDIES.
9.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY CENTRAAL.
Centraal, at it own expense, will defend, indemnify and hold harmless NSI, its
officers, directors, employees, stockholders, and NSI Affiliates (collectively,
the "NSI INDEMNIFIED PERSONS") for, and will pay to the NSI Indemnified Persons
the amount of, any liability, claims, damages, defense costs and reasonable
attorneys' fees, resulting from third-party claims (collectively, "DAMAGES"),
arising from Centraal's provision of RealNames Services under this Agreement,
including without limitation Centraal's RealName application, ordering,
assignment, and adjudication process, and including, without limitation, the
infringement, or alleged infringement, of any copyright, patent, trade secret,
trade name, trademark or service ▇▇▇▇ right of any third party in connection
therewith. Centraal's obligations under this Section 9.1 will be NSI's sole
remedy, and Centraal's sole liability, for any such third party claims.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
9.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY NSI. NSI, at its
own expense, will defend, indemnify and hold harmless Centraal, its officers,
directors, employees, and stockholders (collectively, the "CENTRAAL INDEMNIFIED
PERSONS"), and will pay to the Centraal Indemnified Persons the amount of, any
Damages arising from the provision by NSI of the services described in Section 3
of this Agreement, and NSI's and the NSI Affiliates' solicitation of sales of
RealNames Services under Section 2 of this Agreement, including, without
limitation, claims of fraud, unfair business practices, misrepresentation,
breach of warranty, or other violations of third party rights. NSI's obligations
under this Section 9.2 will be Centraal's sole remedy and NSI's sole liability
for any such third party claims.
9.3 PROCEDURES FOR INDEMNIFICATION - THIRD PARTY CLAIMS.
(a) Promptly after receipt by an indemnified party
of notice of the commencement of any proceeding against it, such indemnified
party will, if a claim is to be made against an indemnifying party under this
Section 9, give notice to the indemnifying party of the commencement of such
claim, but the failure to notify the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any indemnified party,
except to the extent that the indemnifying party demonstrates that the defense
of such action is prejudiced by the indemnifying party's failure to give such
notice.
(b) If any proceeding in the previous paragraph is
brought against an indemnified party and it gives notice to the indemnifying
party of the commencement of such proceeding, the indemnifying party will be
entitled to assume the defense of such proceeding with counsel of its choice
and, after notice from the indemnifying party to the indemnified party of its
intention to assume the defense of such proceeding, the indemnifying party
will not, as long as it diligently conducts such defense, be liable to the
indemnified party under this Section 9 for any fees of other counsel or any
other expenses with respect to the defense of such proceeding, in each case
subsequently incurred by the indemnified party in connection with the defense
of such proceeding. The indemnified party may, at its sole expense,
participate in such defense with counsel reasonably acceptable to the
indemnifying party. Once the indemnifying party assumes the defense of a
proceeding, (i) it will be conclusively established for purposes of this
Agreement that the claims made in that proceeding are within the scope of and
subject to indemnification; (ii) no compromise or settlement of such claims
may be effected by the indemnifying party without the indemnified party's
consent unless there is no finding or admission of any violation of law or
any violation of the rights of any person and no effect on any other claims
that may be made against the indemnified party, and the sole relief provided
is monetary damages that are paid in full by the indemnifying party; and
(iii) the indemnified party will have no liability with respect to any
compromise or settlement of such claims effected without its consent. If
notice is given to an indemnifying party of the commencement of any
proceeding and the indemnifying party does not, within 30 days after the
indemnified party's notice is given, give notice to the indemnified party of
its intention to assume the defense of such
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
proceeding, the indemnifying party will be bound by any determination made in
such proceeding or any compromise or settlement effected by the indemnified
party.
9.4 Notwithstanding the forgoing, if an indemnified party
determines in good faith that there is a reasonable probability that a
proceeding may adversely affect it other than as a result of monetary damages
for which it would be entitled to indemnification under this Agreement, the
indemnified party may, by notice of the indemnifying party, assume the exclusive
right to defend, compromise, or settle such proceeding, but the indemnifying
party will not be bound by any determination of a proceeding so defended or any
compromise or settlement effected without its consent (which may not be
unreasonably withheld).
10. LIMITATION OF LIABILITY.
10.1 LIABILITY ON TERMINATION. In the event of termination by
either party in accordance with any of the provisions of this Agreement, neither
party will be liable to the other, because of such termination, for
compensation, reimbursement or damages on account of the loss of prospective
profits or anticipated sales or on account of expenditures, investments, or
commitments in connection with the business or goodwill of Centraal or NSI.
10.2 LIMITATION. EXCEPT FOR LIABILITY ARISING OUT OF SECTION 6
OR FROM THIRD PARTY CLAIMS UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY LOST PROFITS OR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED ON ANY
THEORY OF LIABILITY (INCLUDING NEGLIGENCE).
11. MISCELLANEOUS
11.1 NONASSIGNMENT/BINDING AGREEMENT. Neither this Agreement
nor any rights under this Agreement may be assigned or otherwise transferred by
either party, in whole or in part, whether voluntary or by operation of law
without the prior written consent of the other party, which consent will not be
unreasonably withheld. Notwithstanding the above, either party may assign its
rights and obligations under this Agreement to a successor in connection with a
sale of all or substantially all of such party's assets, or pursuant to a
merger, acquisition, or corporate reorganization; provided such successor agrees
in writing to be bound by the terms and conditions of this Agreement, and
provided that such successor is not a direct competitor of the other party.
Subject to the foregoing, this Agreement will be binding upon and will inure to
the benefit of the parties and their respective successors and assigns.
11.2 INDEPENDENT CONTRACTORS. The relationship of the parties
under this Agreement is that of independent contractors. Neither party will be
deemed to be an employee,
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
agent, partner or legal representative of the other for any purpose and neither
will have any right, power or authority to create any obligation or
responsibility on behalf of the other.
11.3 NOTICES. Any notice required or permitted under the terms
of this Agreement or required by law must be in writing and must be (a)
delivered in person, (b) sent by first class registered mail, or air mail, as
appropriate, or (c) sent by overnight air courier, in each case properly posted
and fully prepaid to the appropriate address set forth below. Either party may
change its address for notice by notice to the other party given in accordance
with this Section 11.3. Notices will be considered to have been given at the
time of actual delivery in person, 3 business days after deposit in the mail as
set forth above, or one day after delivery to an overnight air courier service.
NOTICE ADDRESS IF TO CENTRAAL:
▇▇▇ ▇▇▇▇
Executive Vice President of Sales and Marketing
Centraal Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
P.O. box 50750
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ - 0750
WITH A COPY TO:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President of Subscription Sales and Marketing
Centraal Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
P.O. box 50750
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ - 0750
NOTICE ADDRESS IF TO NSI:
▇▇▇ ▇▇▇▇▇
General Counsel
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11.4 FORCE MAJEURE. Neither party will be liable to the other
party on account of any loss or damage resulting from any delay or failure to
perform all or any part of this
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
Agreement if such delay or failure is caused, in whole or in part, by events,
occurrences, or causes beyond the control and without negligence of the parties.
Such events, occurrences, or causes will include, without limitation, acts of
God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but
the inability to meet financial obligations is expressly excluded.
11.5 WAIVER. Any waiver of the provisions of this Agreement or
of a party's rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect, or delay by a party to enforce the provisions of
this Agreement or its rights or remedies at any time, will not be construed and
will not be deemed to be a waiver of such party's rights under this Agreement
and will not in any way affect the validity of the whole or any part of this
Agreement or prejudice such party's right to take subsequent action. No exercise
or enforcement by either party of any right or remedy under this Agreement will
preclude the enforcement by such party of any other right or remedy under this
Agreement or that such party is entitled by law to enforce.
11.6 SEVERABILITY. If any term, condition, or provision in
this Agreement is found to be invalid, unlawful or unenforceable to any extent,
the parties shall endeavor in good faith to agree to such amendments that will
preserve, as far as possible, the intentions expressed in this Agreement. If the
parties fail to agree on such an amendment, such invalid term, condition or
provision will be severed from the remaining terms, conditions and provisions,
which will continue to be valid and enforceable to the fullest extent permitted
by law.
11.7 INTEGRATION. This Agreement (including the Attachments
and any addenda hereto signed by both parties) contains the entire agreement of
the parties with respect to the subject matter of this Agreement and supersedes
all previous communications, representations, understandings and agreements,
either oral or written, between the parties with respect to said subject matter,
including without limitation the Draft Memorandum of Understanding between the
parties dated the September 25, 1998. This Agreement may not be amended, except
by a writing signed by both parties.
11.8 CONFIDENTIALITY AND PRESS RELEASE. Neither party shall
disclose any terms of this Agreement to any third party without the consent of
the other party, except as required by securities or other applicable laws or to
prospective and other investors or such party's accountants, attorneys and other
professional advisors, provided such parties are acting under a duty of
confidentiality. The parties shall use reasonable efforts to agree upon and
release a joint press release regarding this Agreement that is mutually
acceptable in timing and content, as soon as reasonably possible after the
Effective Date.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
11.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which so executed will be deemed to be an original and
such counterparts together will constitute one and the same agreement.
11.10 GOVERNING LAW. This Agreement will be interpreted and
construed in accordance with the laws of the State of California and the United
States of America, without regard to conflict of law principles. All disputes
arising out of this Agreement will be subject to the exclusive jurisdiction of
the state and federal courts located in Santa ▇▇▇▇▇ County, California, and
Fairfax County, Virginia, and each party hereby consents to the personal
jurisdiction thereof.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
CENTRAAL CORPORATION NETWORK SOLUTIONS, INC.
By: /s/▇▇▇▇▇ ▇▇▇▇▇ By:
----------------------------- -------------------------------
Title: President Title:
----------------------------- -------------------------------
Date: 12/8/98 Date:
----------------------------- -------------------------------
[SIGNATURE PAGE TO SALES REPRESENTATIVE AGREEMENT]
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
CENTRAAL CORPORATION NETWORK SOLUTIONS, INC.
By: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------- -------------------------------
▇▇▇▇▇ ▇▇▇▇▇
President
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇,CFO
-------------------------------
Date: Date:
-------------------------------- -------------------------------
[SIGNATURE PAGE TO SALES REPRESENTATIVE AGREEMENT]
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
ATTACHMENT 1
NSI SUPPORT OBLIGATIONS
1. NSI SUPPORT. NSI shall provide first level support through
telephone, email and fax to customers of RealName Subscriptions. NSI will only
be obligated to provide support in US English, but may provide support in other
languages if NSI deems it appropriate to do so.
1.1 SCHEDULE. NSI shall make a Customer Service Representative
available to customers 7-days per week, 24 hours per day.
1.2 SUPPORT FUNCTIONS. NSI shall perform the following
support functions:
(a) Resolve questions on the use of the Web-based
interface for purchase of RealName Service subscriptions.
(b) Resolve questions from customers on the status of
RealName Service subscriptions.
(c) Resolve questions from customers regarding the
billing of RealName Service subscriptions.
(d) Interface with RealName Second Level Support on
behalf of the customer as required.
(e) Forward customers with adjudication questions to
the RealName Adjudication center.
(f) Answer basic questions about installation of
the RealName Service XML registration file on the customer's computer.
(g) Answer questions about the statistics
information provided through the RealName Web site.
(h) Describe the RealName adjudication process to
customers at a summary level.
1.3 SERVICE LEVEL. NSI shall provide support according to the
following level of service requirements, for customer interaction that does not
require Second Level Support from Centraal:
(a) 8% maximum average abandon rate for ACD.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
(b) 30 second maximum average speed of answer, to
be measured from the time the customer begins to wait in an ACD queue.
(c) 24-hour maximum average email response time;
provided that adequate access is provided to Centraal's systems and
information to facilitate a timely resolution.
(d) 24-hour maximum average fax resolution time;
provided that adequate access is provided to Centraal's systems and
information to facilitate a timely resolution.
(e) The parties will cooperate to ensure that
NSI's staff is adequately trained so that the percentage of calls escalated
to Second Level Support will be limited to an agreed-upon target percentage.
2. BILLING. NSI shall ▇▇▇▇ NSI Customers for Real Name Subscription
fees, and collect RealName Subscription fees. NSI shall send renewal notices for
RealName Subscriptions to NSI Customers and Non-NSI Sold Customers, according to
a schedule to be determined by the parties.
3. NSI OPERATIONS SUPPORT. NSI shall provide operations support for all
NSI-operated software, hardware, data communications equipment and
telecommunications equipment. The definition of severity levels for operations
support will be as agreed by the parties.
3.1 SCHEDULE. NSI shall make its operations support personnel
available via telephone or pager 24 hours per day, 7 days per week.
3.2 SERVICE LEVEL. NSI shall provide operations support to
address any problems reported by Centraal, in accordance with the following
problem response objectives. For the purposes of this paragraph the following
definitions and obligations are imposed:
Severity 1 - A Critical function cannot be performed. NSI shall assign Severity
1 problems to a technician within 30 minutes and resolve such problems within 6
hours on average.
Severity 2 - An important, but not critical function, cannot be performed. NSI
shall assign Severity 2 problems to a technician within 2 hours and resolve such
problems within 1 working day on average.
Severity 3 - A non-critical function that does not meet the criteria for
Severity 1 or Severity 2. NSI shall assign Severity 3 problems to a technician
within 1 day and resolve such problems within 7 working days on average.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
All time periods for responses to problems reported by Centraal will commence
when Centraal initially reports a problem to NSI operations personnel. NSI shall
notify Centraal immediately by telephone once any reported problem has been
assigned, and again once the problem is resolved.
3.3 OUTAGES. NSI shall notify Centraal of any scheduled outage
at least 48 hours in advance of the outage, via both telephone and email. NSI
shall notify Centraal immediately in the event of an unscheduled outage, via
telephone.
4. TRAINING. NSI shall train personnel performing First Level Support
on the details of the RealName Service and Centraal billing system. NSI shall
train personnel performing all NSI supplied telesales functions if these
services are offered. Centraal and NSI will cooperate to develop training
materials for such training.
5. SECURITY. NSI shall utilize industry-accepted methods for protecting
information systems from sabotage, impersonation, or unauthorized access to
data.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
ATTACHMENT 2
Centraal Support Obligations
1. REALNAME SECOND LEVEL SUPPORT. Centraal shall provide Second Level
Support for problems that cannot be resolved through NSI First Level Support or
RealName First Level Support. Centraal shall provide status information to NSI
on all unresolved second level problems on a regular basis.
1.1 SCHEDULE. Centraal shall provide Second Level Support 12
hours per day, Monday through Friday, excluding Centraal-observed holidays.
1.2 SERVICE LEVEL. Centraal shall adhere to the following
service level requirements for calls received Monday through Friday, excluding
Centraal-observed holidays:
(a) 12-hour maximum average response to problems
submitted by telephone.
(b) 12-hour maximum average response to problems
submitted by email.
(c) 12-hour maximum average response to problems
submitted by fax.
2. REALNAME ADJUDICATION. Centraal shall provide services to all
customers of RealNames Services to adjudicate disputes regarding RealName
Subscriptions, via telephone, email and fax.
2.1 SCHEDULE. Centraal shall provide RealName adjudication
support 9 a.m. through 9 p.m. Eastern time, Monday through Friday, Centraal
observed holidays excluded.
2.2 SERVICE LEVEL. Centraal shall provide RealName
adjudication support according to the following service level requirements:
(a) Centraal shall review and respond to 99% of all
RealName Service subscriptions submitted in US English within an average of 24
hours after submission.
(b) Centraal shall resolve 99% of all RealName
Service subscriptions submitted in US English that are initially rejected,
within 72 hours of submission, provided the customer is available and
cooperates regarding such resolution.
3. CENTRAAL OPERATIONS SUPPORT. As between the parties, Centraal shall
provide operations support for all Central-operated software, hardware, data
communications equipment
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
and telecommunications equipment that is used to provide RealNames Services.
The definition of severity levels for operations support will be as agreed to
by the parties.
3.1 SCHEDULE. Centraal shall make its operations support
personnel available via telephone or pager 24 hours per day, 7 days per week.
3.2 SERVICE LEVEL. Centraal shall provide operations support
to address any problems reported by NSI in accordance with the following problem
response objectives. All time periods for responses to problems reported by NSI
will commence when NSI initially reports a problem to Centraal operations
personnel. For the purposes of this paragraph the following definitions and
obligations are imposed:
Severity 1 - A Critical function cannot be performed. Centraal shall assign
Severity 1 problems to a technician within 30 minutes and resolve such problems
within 6 hours on average.
Severity 2 - An important, but not critical function, cannot be performed.
Centraal shall assign Severity 2 problems to a technician within 2 hours and
resolve such problems within 1 working day on average.
Severity 3 - A non-critical function that does not meet the criteria for
Severity 1 or Severity 2. Centraal shall assign Severity 3 problems to a
technician within 1 day and resolve such problems within 7 working days on
average.
3.3 Centraal shall notify NSI immediately by telephone once
any reported problem has been assigned, and again once the problem is resolved.
3.4 OUTAGES. Centraal shall notify NSI of any scheduled outage
at least 48 hours in advance of the outage, via both telephone and email.
Centraal shall notify NSI immediately in the event of an unscheduled outage, via
telephone.
4. CUSTOMER SERVICE TOOLS. Centraal shall provide existing Web-based
customer service tools for use by NSI in connection with its First Level Support
obligations, and telesales, if any, subject to any applicable licensing terms.
These customer service tools will be modified by Centraal according to a
specification jointly agreed to by the parties to provide the functionality
required for first level support and telesales functions.
5. TRAINING. Centraal will provide Second Level Support to NSI training
personnel as required to answer questions and resolve problems related to
training issues.
6. SECURITY. Centraal shall utilize industry-accepted methods for
protecting information systems from sabotage, impersonation, or unauthorized
access to data.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
ATTACHMENT 3
FORM OF WARRANT
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE AFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THE WARRANT EVIDENCED HEREBY IS NON-TRANSFERRABLE.
NO. NSI-___ CENTRAAL CORPORATION [DATE OF ISSUE]
COMMON STOCK PURCHASE WARRANT
This certifies that, for good and valuable consideration, Network
Solutions, Inc. ("NSI") is entitled, upon the terms and subject to the
conditions hereinafter set forth, to acquire from Centraal Corporation (the
"COMPANY"), in whole or from time to time in part, up to _________ fully paid
and nonassessable shares of Common Stock, par value $0.001 per share, of the
Company ("WARRANT STOCK") at a purchase price per share of $________ (the
"EXERCISE PRICE"). Such number of shares, type of security and Exercise Price
are subject to adjustment as provided herein, and all references to "Warrant
Stock" and "Exercise Price" herein shall be deemed to include any such
adjustment or series of adjustments.
1. EXERCISE OF WARRANT
(a) EXPIRATION TIME. The term "EXPIRATION TIME" means the
close of business on [DATE OF EXPIRATION].
(b) EXERCISE PROCEDURE. The purchase rights represented by
this Warrant are exercisable, in whole or in part, at any time and from time to
time at or after the date hereof and at or prior to the Expiration Time, by the
surrender of this Warrant and the Notice of Exercise form attached hereto duly
executed to the office of the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: Corporate Secretary (or such other office or agency of the Company
as it may designate by notice in writing to the registered holder hereof at the
address of such holder appearing on the books of the Company), and upon payment
of the Exercise Price for the shares thereby purchased (by wire transfer, by
certified bank check payable to the order of the Company, by cancellation of
indebtedness of the Company to the holder hereof, if any, at the time of
exercise, or by any combination thereof, in an amount, payable in United States
dollars, equal to the purchase price of the shares thereby purchased); whereupon
the holder of this Warrant shall be entitled to receive from the Company a stock
certificate in proper form representing the number of shares of Warrant Stock so
purchased, and a new Warrant in substantially identical form for the purchase of
that number of shares of Warrant Stock equal to the difference, if any, between
the number of shares of Warrant Stock subject hereto and the number of shares of
Warrant Stock as to which this Warrant is so exercised.
2. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
Certificates for shares purchased hereunder shall be delivered
within a reasonable time after the date on which this Warrant shall have been
exercised in accordance with the terms hereof. The Company hereby represents
and warrants that all shares of Warrant Stock which may be issued upon the
exercise of this Warrant will, upon such exercise, be duly and validly
authorized and issued, fully paid and nonassessable and free from all taxes,
liens and charges in respect of the issuance thereof (other than liens or
charges
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
created by or imposed upon the holder of the Warrant Stock). The Company agrees
that the shares so issued shall be and shall for all purposes be deemed to have
been issued as of the close of business on the date on which this Warrant shall
have been exercised in accordance with the terms hereof. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon the exercise of
this Warrant, an amount equal to such fraction multiplied by the Fair Market
Value (as determined in good faith by the Company's Board of Directors) of a
share of Warrant Stock on the date of exercise shall be paid in cash or check to
the holder of this Warrant.
3. CHARGES, TAXES AND EXPENSES
The holder shall pay all issue and transfer taxes and other incidental
expenses in respect of the issuance of certificates for shares of Warrant Stock
upon the exercise of this Warrant, and such certificates shall be issued in the
name of the holder of this Warrant.
4. NO RIGHTS AS A STOCKHOLDER
This Warrant does not entitle the holder hereof to any voting rights
or other rights as a stockholder of the Company prior to the exercise hereof.
5. RESTRICTIONS ON TRANSFER; LOCK-UP
(a) RESTRICTIONS ON WARRANT. This Warrant is not
transferable, whether by sale, pledge or other disposition, voluntarily or by
operation of law or otherwise without the prior written consent of the
Company, which consent may be withheld in the Company's sole discretion. Any
transfer in violation hereof shall be void and the Warrant shall terminate
immediately upon any such purported transfer.
(b) RESTRICTIONS ON TRANSFER OF WARRANT STOCK. In no event
will the holder make a disposition of the Warrant Stock unless and until (i) it
shall have notified the Company of the proposed disposition in writing, and (ii)
if requested by the Company, it shall have furnished the Company with an opinion
of counsel satisfactory to the Company and its counsel to the effect that (A)
appropriate action necessary for compliance with the Securities Act of 1933, as
amended (the "SECURITIES ACT") provisions relating to sale of an unregistered
security has been taken, or (B) an exemption from the registration requirements
of the Securities Act is available. Notwithstanding the foregoing, the
restrictions imposed upon the transferability of the Warrant Stock shall
terminate as to any particular share of Warrant Stock when (1) such security
shall have been sold without registration in compliance with Rule 144 under the
Securities Act, or (2)a letter shall have been issued to the holder at its
request by the staff of the Securities and Exchange Commission or a ruling shall
have been issued to the holder at its request by such Commission stating that no
action shall be recommended by such staff or taken by such Commission, as the
case may be, if such security is transferred without registration under the
Securities Act in accordance with the conditions set forth in such letter or
ruling and such letter or ruling specifies that no subsequent restrictions on
transfer are required, or (3) such security shall have been registered under the
Securities Act and sold by the holder thereof in accordance with such
registration.
(c) LOCK-UP. In the event of any registration of the Company's
securities, the holder will not, upon request of the Company or the underwriters
managing any underwritten offering of the Company's securities, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of the Warrant Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Warrant Stock,
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
-2-
whether or not any such transaction described in clause (i) or (ii) above is
to be settled by delivery of such Warrant Stock, in cash or otherwise,
without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed 180 days) from the
effective date of such registration as may be requested by the Company or
such managing underwriters.
(d) NO PUBLIC MARKET. At the date of issuance of this Warrant,
no public market exists for any of the securities of the Company, and the
Company makes no assurances that a public market will ever exist for the
Company's securities.
(e) RESTRICTIVE LEGENDS. The certificates representing the
Warrant Stock and any securities of the Company issued with respect thereto
shall be imprinted with legends restricting transfer except in compliance with
the terms hereof and with applicable Federal and state securities laws.
6. EXCHANGE AND REGISTRY OF WARRANT
The Company shall maintain at the office or agency referred to in
Section 1(b) hereof a registry showing the name and address of the registered
holder of this Warrant. This Warrant may be surrendered for exercise in
accordance with its terms at such office or agency of the Company, and the
Company shall be entitled to rely in all respects upon such registry.
7. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
On receipt by the Company of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and in
case of any such loss, theft or destruction of this Warrant, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of such
Warrant, the Company will execute and deliver to the holder, in lieu thereof,
a new Warrant in substantially identical form.
8. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall be a Saturday or a
Sunday or shall be a legal holiday in the United States or the State of
California, then such action may be taken or such right may be exercised on
the next succeeding business day.
9. ADJUSTMENT TO NUMBER AND TYPE OF SECURITIES AND EXERCISE PRICE
The type and number of securities of the Company issuable upon
exercise of this Warrant and the Exercise Price are subject to adjustment as
set forth below:
(a) ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS,
RECAPITALIZATIONS, ETC. The Exercise Price and the number and type of securities
and/or other property issuable upon exercise of this Warrant shall be
appropriately and proportionately adjusted to reflect any stock dividend, stock
split, combination of shares, reclassification, recapitalization or other
similar event affecting the number or character of outstanding shares of Warrant
Stock, so that the number and type of securities and/or other property issuable
upon exercise of this Warrant shall be equal to that which would have been
issuable with respect to the number of shares of Warrant Stock subject hereto at
the time of such event, had such shares of Warrant Stock then been outstanding.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
-3-
b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
In case of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "REORGANIZATION"), then, in each case, the holder of this
Warrant, on exercise hereof at any time after the consummation or effective date
of such Reorganization, shall receive, in lieu of the Warrant Stock issuable on
such exercise prior to the date of such Reorganization, the stock and other
securities and property (including cash) to which such holder would have been
entitled upon the date of such Reorganization if such holder had exercised this
Warrant immediately prior thereto.
(c) CERTIFICATE AS TO ADJUSTMENTS. In case of any adjustment
in the Exercise Price or number and type of securities issuable on the exercise
of this Warrant, the Company will promptly give written notice thereof to the
holder of this Warrant in the form of a certificate, certified and confirmed by
an officer of the Company, setting forth such adjustment and showing in
reasonable detail the facts upon which such adjustment is based.
10. REPRESENTATIONS AND COVENANTS OF.
NSI represents and covenants to the Company as follows:
(a) INVESTMENT PURPOSE. This Warrant and the Warrant Stock
will be acquired for investment for NSI's own account, and not as a nominee or
agent and not with a view to the distribution of any part thereof. NSI further
represents that it does not have any contract, undertaking agreement or
arrangement with any person to sell, transfer or grant participations to such
person, or to any third person, with respect to this Warrant.
(b) PRIVATE ISSUE. NSI understands (i)that the Warrant and the
Warrant Stock are not registered under the Securities Act, or qualified under
applicable state securities laws on the ground that the issuance of this Warrant
will be exempt from the registration and qualifications requirements thereof,
and (ii) that the Company's reliance on such exemption is predicated on the
representations set forth in this Section 10.
(c) SALES OF COMMON STOCK. NSI represents and warrants that
NSI is familiar with the provisions of Rule 144 promulgated under the Securities
Act which, in substance, permits limited public resale of "restricted
securities" acquired, directly or indirectly, from the issuer thereof (or from
an affiliate of such issuer) in a non-public offering subject to the
satisfaction of certain conditions, including, among other things: (i) the
availability of certain public information about the Company; (ii) the resale
occurring not less than one year after the party has purchased, and made full
payment for, within the meaning of Rule 144, the securities to be sold; and
(iii) in the case of an affiliate, or of a non-affiliate who has held the
securities less than two years, the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as such term is defined under the Securities Exchange Act of 1934, as
amended) and the amount of securities being sold during any three month period
not exceeding the specified limitations stated therein, if applicable. NSI
acknowledges that in the event the applicable requirements of Rule 144 are not
met, registration under the Securities Act or compliance with another exemption
from registration will be required for any disposition of the Common Stock
issuable upon exercise of this Warrant.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
-4-
(d) FINANCIAL RISK. NSI has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
(e) ACCREDITED INVESTOR. NSI is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
11. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts made and to be performed
wholly within such state.
12. COMPLETE AGREEMENT AND MODIFICATIONS
This Warrant and any documents referred to herein or executed
contemporaneously herewith constitute the Company's and NSI's entire agreement
with respect to the subject matter hereof and supersede all agreements,
representations, warranties, statements, promises and understandings, whether
oral or written, with respect to the subject matter hereof. This Warrant may not
be amended, altered or modified except by a writing signed by the Company and
the holder of this Warrant.
13. NOTICES
Except as otherwise provided herein, all notices under this Warrant
shall be in writing and shall be delivered by personal service, facsimile,
courier service promising overnight delivery or certified mail (if such service
is not available, then by first class mail), postage prepaid. Notices shall be
addressed as follows:
If to: Network Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: _____________________
Attention: _____________________
If to the Company: Centraal Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Secretary
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
14. WAIVERS STRICTLY CONSTRUED
With regard to any power, remedy or right provided herein or otherwise
available to any party hereunder (i) no waiver or extension of time shall be
effective unless expressly contained in a writing signed
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
-5-
by the waiving party; and (ii) no alteration, modification or impairment shall
be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence.
15. SEVERABILITY
The validity, legality or enforceability of the remainder of this
Warrant shall not be affected even if one or more of its provisions shall be
held to be invalid, illegal or unenforceable in any respect.
* * *
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
-6-
IN WITNESS WHEREOF, the Company and NSI have caused this Warrant to be
executed by their duly authorized representatives.
CENTRAAL CORPORATION,
a Delaware corporation
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
NETWORK SOLUTIONS, INC.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
[SIGNATURE PAGE TO COMMON STOCK PURCHASE WARRANT]
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
NOTICE OF EXERCISE
To: Centraal Corporation, a Delaware corporation
(1) The undersigned hereby elects to purchase ________shares of
Common Stock of Centraal Corporation, a Delaware corporation, pursuant to the
terms of the attached Warrant, and tenders herewith payment of the purchase
price in full.
(2) The undersigned represents that the aforesaid shares are
being acquired for the account of the undersigned for investment and not with
a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling
such shares, except in compliance with applicable Federal and state
securities laws.
(3) The undersigned accepts such shares subject to the
restrictions on transfer set forth in the attached Warrant.
Holder:
-------------------------
By:
----------------------------
--------------------- Name:
(Date) --------------------------
Title:
-------------------------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
AMENDMENT #1 TO REALNAME SALES REPRESENTATIVE AGREEMENT
This Amendment is made as of February 18th, 1999 (the "Effective Date")
by and between Network Solutions, Inc. ("NSI") and Centraal Corporation
("Centraal") for the purpose of modifying the RealName Sales Representative
Agreement between the parties dated as of December 8, 1998 ("Agreement").
WHEREAS, the parties have entered into the Agreement which provides for NSI to
solicit sales of RealNames Services (as such term is defined in the Agreement);
and
WHEREAS, the parties wish Centraal's logo and hyperlink to appear on NSI's "Dot
Com Toolkit" Web page to enable the direction of NSI's customers to Centraal's
transactional web site and thereby facilitate sales by Centraal of it RealNames
Services.
Now, therefore, the parties agree as follows:
1. Section 7.1(a) (Use of Centraal's Trademarks) of the Agreement will be
changed by adding the following:
In addition, during the term of this Agreement, NSI may display a hyperlink
using the Centraal Marks as provided in Section 2.16(b).
2. The following will be added to Section 1 of the Agreement
1.11 "Centraal Home Page" means the entry page on the WWW located at the
URL address ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ which is the page a user's web browser
will generate as a result of requesting such URL or any other URL with
which that the Parties replace such URL.
1.12 "Centraal Web Site" means the Centraal Home Page and other web pages
sharing a similar URL that are connected to it.
1.13 "Dot Com Toolkit" means the area on the NSI Web Site that users are
referred to for the presentation of offerings to assist small and medium
size businesses in building, establishing or promoting their Internet
identity or conducting business on the Internet by offering easy access to
tools, products and services to facilitate the development, enhancement and
promotion of their web site.
1.14 "Dot Com Toolkit Page" means the content area of the Dot Com Toolkit
for the Centraal product/service offering descriptions.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
1.15 "Host" means a computer system that carries a web site or sites.
1.16 "Hyper Link" or "hyperlink" means the icon, logo, highlighted or
colored text, figure, or image representing a URL provided by each Party to
the other under this Agreement, which allows an Internet user to move from
one web site to another web site.
1.17 "NSI Home Page" means the entry page on the WWW located at the URL
address ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ which is the page a user's web
browser will generate as a result of requesting such URL or any other URL
with which NSI replaces such URL.
1.18 "NSI Web Site" means the NSI Home Page and the other pages, sharing a
similar URL, which are connected to it.
3. Section 1.10 (Definition of "Sold") will be changed as follows:
"(i) solicited by NSI on Centraal's behalf" will be changed to "(i)
solicited by NSI on Centraal's behalf, including without limitation through
referral from the Dot Com Toolkit Page"
4. The following new Section 2.16 will be added to the Agreement.
2.16 DOT COM TOOLKIT
2.16 (a) CENTRAAL'S OBLIGATIONS
2.16 (a) (i) DEVELOPMENT. As between the parties, Centraal will be
responsible to develop and maintain the content of the Centraal Web Site,
in a manner of Centraal's choosing at its sole discretion, for the offering
of the RealNames Services under this Agreement.
2.16 (a) (ii) DOT COM TOOLKIT PAGE. Centraal shall prepare its Dot Com
Toolkit Page content pursuant to the specifications and requirements
provided by NSI, which may be changed from time to time in NSI's
reasonable discretion. Centraal shall provide NSI with the URL where its
Dot Com Toolkit Page is located to enable NSI to harvest such content for
the purpose of incorporating into the Dot Com Toolkit. The Dot Com Toolkit
Page will have a Hyper Link to the Centraal Web Site to enable customers
and visitors of the NSI Web Site ("NSI Customers") to purchase the Central
RealNames Services.
2.16(a)(iii) HOSTING OF THE CENTRAAL WEB SITE. As between the parties,
Centraal will be responsible to Host the Centraal Web Site on its web
server, in a manner of Centraal's choosing at its sole discretion.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
2.16(b) NSI'S OBLIGATIONS
2.16(b)(i) DEVELOPMENT OF DOT COM TOOLKIT. NSI, at its sole cost, will
develop and maintain the Dot Com Toolkit web site. The Dot Com Toolkit will
be compatible with version 3.0 or better web browsers. The Dot Com Toolkit
will contain a listing of categories identifying the types of
products/service offerings available from parties under contract to NSI.
NSI will maintain a Hyper Link on the Centraal Dot Com Toolkit page to
enable NSI Customers to go to the Centraal Web Site to purchase the
RealNames Services. Centraal will provide its logo and other identifier
information, in the format requested by NSI, to enable NSI to establish the
Hyper Link.
2.16(b)(ii) DEVELOPMENT OF DOT COM TOOL KIT CATEGORY PAGE. NSI will
develop, maintain and Host individual category pages within the Dot Com
Tool Kit for different categories of product/service offerings with a
description of specific offerings available from parties under contract to
NSI. NSI will provide Centraal with a specification regarding the
individual Dot Com Toolkit Page requirements for storage space, content,
artwork, logo size, product/service offering descriptions and other
applicable requirements.
2.16(b)(iii) REPORTING AND TRACKING. NSI will provide Centraal an
individual electronic bi-weekly report of the number of click-throughs from
Centraal's Dot Com Toolkit page to the Centraal Web Site. NSI will provide
Centraal with procedures for accessing its weekly report.
2.16(b)(iv) CUSTOMER SUPPORT. NSI will provide support to NSI Customers for
all issues relating to the Dot Com Toolkit.
5. Section 3.1(a) (Customer Services; Support) will be changed by adding the
following after the first sentence:
The parties acknowledge that prior to the date NSI begins to provide such
customer support under this Section 3.1(a), as between the parties,
Centraal will be responsible for providing customer support for the
Centraal Web Site, in a manner of Centraal's own choosing at its sole
discretion.
6. The following new Section 11.11 will be added to the Agreement:
11.11 AUDIT. Each party reserves the right to audit, at its sole cost and
expense, no more than one per year, upon 10 business days advance written
notice, the appropriate records of the other party to verify any amounts
due under this Agreement. Such audits shall be conducted by an independent
certified public accounting firm in accordance with generally accepted
auditing standards, limited to records for the 12 month period immediately
preceding the month of the audit. If any audit reveals an underpayment of
10% or more for the period under audit, then the audited party will
immediately pay the auditing party for all underpaid commission fees and
the reasonable costs of the audit.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
7. Except as amended by this Amendment, the terms and conditions of the
Agreement will remain in full force and effect.
CENTRAAL CORPORATION NETWORK SOLUTIONS, INC.
Signed: /S/▇▇▇ ▇▇▇▇ Signed: /S/▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------- -----------------------
By: ▇▇▇ ▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------ --------------------------
Title: EVP - SALES & MARKETING Title: COUNSEL
---------------------------- ------------------------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
AMENDMENT #2 TO REALNAME SALES REPRESENTATIVE AGREEMENT
This Amendment is made as of the 25th day of May, 1999 (the "Effective Date") by
and between Network Solutions, Inc. ("NSI") and Centraal Corporation
("Centraal") for the purpose of modifying the RealNames Sales Representative
Agreement between the parties dated as of December 8, 1998 ("Agreement").
WHEREAS, the parties have entered into the Agreement, which provides for NSI to
solicit sales of RealNames Services (as such term is defined in the Agreement);
and
WHEREAS, the parties wish to modify the Agreement to reflect a short term
promotional incentive program and changes to the Parties customer Support
obligations.
NOW, THEREFORE, in consideration of the mutual covenants and premises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which hereby is acknowledged, Centraal and NSI hereby agree to amend the
Agreement as follows:
1. DEFINED TERMS. Except as otherwise provided herein, all of the capitalized
terms used herein shall have the same meanings as provided in the
Agreement.
2. CENTRAAL/NSI PROMOTIONAL INCENTIVE FOR ISP CHANNELS - THE FOLLOWING CHANGES
ARE MADE TO SECTION 2 OF THE AGREEMENT:
2.5 For the remaining term of this Agreement, Centraal agrees to accept
RealNames Subscriptions ordered through any NSI Affiliate from Key Accounts and
to pay Commissions to NSI for such RealNames Subscriptions in accordance with
Section 2.8 of the Agreement.
2.8 For the period of June 1, 1999 through September 30, 1999, Centraal
agrees to pay NSI an additional Commission of [*] of the NSI Customer
Subscription Fee plus the standard Commission (the greater of (i) [*] , or
(ii) [*] for each NSI Customer Subscription Fee acquired through any NSI
Affiliate that NSI elects to pass on such additional commission as an
additional incentive to stimulate interest in selling RealNames
Subscriptions. NSI agrees that the additional Commission of [*] of the NSI
Customer Subscription Fee will be paid directly to the respective NSI
Affiliate. For NSI Affiliates that NSI elects to provide the additional [*]
Commission, NSI agrees to pay a minimum of [*] per each RealName
subscription sold through the NSI Affiliates for the same period of time and
in addition to the [*] commission. The minimum commission to each of the NSI
Affiliates that NSI elects to provide the additional [*] Commission during
the promotional incentive period will thus be [*] of the RealName
Subscription Fee plus [*] . Centraal will pay the commission directly to NSI
for distribution to the NSI Affiliates after sales are made and funds
collected. NSI will provide Centraal with information reasonably necessary to
validate actual partner subscription sales and commission payments.
3. CUSTOMER SUPPORT - THE FOLLOWING CHANGES ARE MADE TO SECTION 3 OF THE
AGREEMENT:
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
3.1 (a) Centraal will continue to provide First Level Support past June 1,
1999 according to the plan described in Attachment 1 to the Agreement in a
timely manner pending NSI's readiness for providing such services. NSI agrees to
use its best efforts to commence providing First Level Support on or before
January 1, 2000.
3.2 Until such time as NSI commences providing First Level Support, it
agrees not to withhold commissions according to the section 3.2 of the agreement
from RealNames Subscription Fees.
IN WITNESS WHEREOF, the parties hereto caused this Amendment to be signed by
duly authorized officers or representatives as of May 25, 1999.
Centraal Corporation
By: /S/J ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Business Development, and General Counsel
Network Solutions, Inc.
By: /S/▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Counsel
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.