Underwriting Agreement [Mystery!] - WGBH Educational Foundation and LookSmart Ltd.
[LETTERHEAD APPEARS HERE] [LOGO OF WGBH APPEARS HERE]
UNDERWRITING AGREEMENT
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Underwriting Agreement entered into this 7th day of June, 1999, between
the WGBH Educational Foundation, a non-profit charitable Massachusetts
corporation having its principal place of business at 125 Western Avenue,
Boston, Massachusetts 02134 ("WGBH"), and:
Company: LookSmart ("LookSmart")
Address: 487 Bryant Street
San Francisco, CA 94107
Attn: Val Landi, Vice President, Marketing
In consideration of the mutual covenants set forth herein, LookSmart, and
WGBH hereby agree to the terms and conditions in The Schedule set forth below
and the attached General Terms and Conditions (collectively, the "Agreement").
THE SCHEDULE
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1. Series (the "Series"):
(a) Title of the Series: MYSTERY!
(b) Broadcast Season(s): 1999-2000, 200-20001, 2001-2002
(c) Approximate Length of each Program in the Series: Sixty minutes (60:00)
(d) Series Description: A weekly mystery series mixing period and
contemporary drama.
2. Amount of Contribution: Two Million Two Hundred Fifty Thousand Dollars
($2,250,000) (NET) (the "Grant").
3. Payment Schedule (the "Payment Schedule"): LookSmart shall make payment of
the Grant to WGBH as follows:
(a) 1999-2000 Broadcast Season
(i) $187,500 payable
no later than fifteen (15) days after the
execution of this Agreement;
(ii) $187,500 payable no later than September 15, 1999;
(iii) $187,500 payable no later than December 15, 1999; and
(iv) $187,500 payable no later than March 15, 2000.
(b) 2000-2001 Broadcast Season
(i) $187,500 payable no later than September 15, 2000;
(ii) $187,500 payable no later than December 15, 2000;
(iii) $187,500 payable no later than March 15, 2001; and
(iv) $187,500 payable no later than June 1, 2001.
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LookSmart
Underwriting Agreement
Page 2
(c) 2001-2002 Broadcast Season
(i) $187,500 payable no later than September 15, 2001;
(ii) $187,500 payable no later than December 15, 2001;
(iii) $187,500 payable no later than March 15, 2002; and
(iv) $187,500 payable no later than June 15, 2002.
WGBH shall invoice LookSmart according to this Payment Schedule. Invoices shall
be addressed to Val Landi at the address indicated above,
4. Credit Length: Fifteen seconds (00:15)
5. Where any matter contained in The Schedule may be so read as to alter, amend,
or supersede any part of the General Terms and Conditions, then The Schedule
shall be deemed to be the definitive and over-ruling part of this Agreement.
6. Additional Conditions:
(a) Additional Funder(s): LookSmart shall have the right to approve any
additional corporate funder(s), such approval not to be unreasonably withheld.
However, LookSmart's only reason for withholding approval of an additional
corporate funder(s) shall be based on a demonstration that such additional
corporate funder(s) or a product line of such additional corporate funder(s)
competes directly with LookSmart in the marketplace.
(b) Termination: In the event WGBH does not obtain sufficient funding for
the 2000-2001 and/or 2001-2002 Broadcast Season(s) of the Series, WGBH shall
have the right to terminate this Agreement.
(c) Subsequent Season of the Series:
(i) Should WGBH intend to produce the 2002-2003 and 2003-2004
Season(s) of the Series, WGBH agrees to afford LookSmart the first right to
underwrite such additional season(s), provided that LookSmart agrees at such
time to provide to WGBH a non-returnable grant in the amount of $1,500,000
($750,000 per Season) to meet the production, broadcast, and promotion costs of
such additional season(s) of the Series.
(ii) In the event LookSmart does not agree to provide WGBH a non-
returnable grant in the amount of $1,500,000 by November 1,2001, WGBH shall be
free to seek the support of and enter into agreements with other funders without
any further obligation to LookSmart.
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LookSmart
Underwriting Agreement
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(d) The following is added to the end of Paragraph 5 of the General
Terms and Conditions:
"(c) WGBH shall include LookSmart's logo on any Series online site,
subject to PBS guidelines. Such logo will be a 'hyper link' to the
LookSmart online site."
ACCEPTED AND AGREED TO effective as of the date first herein above shown by
WGBH Educational Foundation LookSmart
By: /s/ Andrew S. Griffiths By: /s/ Val Landi
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Andrew S. Griffiths Val Landi,
Treasurer Vice President, Marketing
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LookSmart
Underwriting Agreement
Page 4
GENERAL TERMS AND CONDITIONS
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The Series
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1. (a) WGBH agrees to produce the Series and use its best efforts to
arrange for broadcast distribution thereof to public television stations during
the Broadcast Season(s) set forth in Paragraph 1(b) of the Schedule.
(b) WGBH agrees to notify LookSmart of the initial broadcast dates for
each program in the Series promptly upon the scheduling thereof.
(c) LookSmart, understands and agree that the Public Broadcasting
Service ("PBS") retains sole responsibility for the scheduling of the Series and
may occasionally pre-empt a program for re-scheduling at a later date. WGBH will
use its best efforts to notify LookSmart, of pre-emption and the rescheduled
date.
2. WGBH shall have sole responsibility for the production of the Series and
all of its contents and elements. The parties agree that as between LookSmart,
and WGBH, WGBH shall own all right, title, and interest, including the
copyright, in and to the Series and all materials related thereto, to be used
and disposed of as WGBH shall in its sole discretion determine.
Compensation
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3. (a) LookSmart, shall pay WGBH and WGBH shall accept as full
compensation for WGBH's obligations herein, the Grant set forth in Paragraph 2
of The Schedule. Payment of the Grant to WGBH shall be made in accordance with
the Payment Schedule set forth in Paragraph 3 of The Schedule.
(b) Without limiting any of WGBH's rights and remedies, interest on
late payments will be charged at the Fleet Bank Massachusetts N.A. Prime Rate
and shall start accruing as of the first day after a payment is due. A payment
shall be deemed late if it is not received by WGBH within thirty (30) days after
the applicable date set forth in this Payment Schedule.
4. To facilitate WGBH's public broadcasting reporting requirements,
LookSmart, agrees to use its best efforts to supply WGBH with a written
statement in the form attached as Exhibit A, regarding all of LookSmart's
in-Kind expenditures on the Series, including those for promotion and
advertising.
LookSmart's Credits
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5. (a) LookSmart shall receive an audio and video credit at the beginning
and end of each program contained in the Series as an underwriter of the Series
on all public television broadcasts of each program of the Series during the
Broadcast Season(s), in accordance with the Communications Act, rules and
regulations of the Federal Communications Commission ("FCC") and PBS, and such
credit shall appear for the length set forth in Paragraph 4 of The Schedule.
(b) WGBH shall have the right to use LookSmart's corporate name and
symbol in connection with LookSmart's underwriting credit only, with LookSmart's
permission.
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LookSmart
Underwriting Agreement
Page 5
Promotion
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6. The parties acknowledge and agree that the Grant includes the costs for
the preparation and distribution of basic promotional materials for the Series
including press releases and on-air promotional spots for use by public
television stations. WGBH agrees to credit LookSmart as a funder of the Series
in all print promotion thereof produced by WGBH after the date of full execution
of this Agreement.
7. LookSmart agrees to submit any plans it may have for the promotion of
the Series (including the text of press releases and text and layouts for
advertisements) to WGBH for approval to ensure the accuracy and appropriateness
of all promotional and advertising materials issued in connection with the
Series. WGBH agrees to respond promptly to, and will not unreasonably withhold
approval of, all materials so submitted. When notified by WGBH, LookSmart,
agrees to include in all such materials, the appropriate trade/service mark
registration symbol in uses of the Series' name.
LookSmart's Copy of the Series
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8. WGBH shall provide, at its cost and expense, one (1) videocassette copy
of each program in the Series to LookSmart, which LookSmart agrees to use for
private, in-house screening purpose only. LookSmart understands and agrees that,
due to certain union restrictions which may limit the use of the Series, any use
of these cassettes other than the limited screening use referenced herein is
subject to the prior written approval of WGBH, and as appropriate, individual
unions and guilds. LookSmart further agrees that it does not hold any
distribution rights as a result of its receipt and possession of these
videocassette copies of the programs in the Series.
Representations, Warranties, and Indemnities
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9. WGBH represent and warrants that it has the legal right and authority
to enter into this Agreement and to observe and perform fully its obligations
set forth herein, and that its performance hereunder will not conflict with or
violate any commitment, agreement, or understanding it has or will have to or
with any other person or entity.
10. WGBH shall pay and indemnify and hold harmless LookSmart, and its
grantors, officers, trustees, assignees, directors, agents, licensees, and
employees from and against all claims, losses, costs, expenses, settlements,
demands, and liabilities of every kind, including reasonable attorneys' fees and
expenses, arising out of or incurred by reason of the inaccuracy, alleged
breach, or actual breach of any representation, warranty, covenant, agreement,
or undertaking made by WGBH herein, or involving any matter in connection with
or caused by the Series or under its control; provided, however, that if any
claim shall be made or action taken which, if true, would constitute a breach of
any representation, warranty, covenant, agreement, or undertaking made by WGBH
herein, LookSmart agrees to give WGBH prompt notice thereof and LookSmart shall
have the right to contest or join in the contest of such claim or action and may
be represented by counsel chosen by LookSmart.
11. LookSmart represents and warrants that it has the legal right and
authority to enter into this Agreement and to observe and fully perform its
obligations set forth herein, and that LookSmart's performance hereunder, will
not conflict with or violate any commitment, agreement, or understanding it has
or will have to or with any other person or entity.
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LookSmart
Underwriting Agreement
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12. LookSmart shall defend, indemnify and hold harmless WGBH and its
grantors, officers, trustees, assignees, agents, licensees, and employees from
and against all claims, losses, costs, expenses, settlements, demands, and
liabilities of every kind, including reasonable attorneys' fees and expenses,
arising out of or incurred by reason of the accuracy, alleged breach, or actual
breach of any representation, warranty, covenant, agreement, or undertaking made
by LookSmart herein, or involving any matter in connection with LookSmart's
advertising or promotion of the Series; provided, however that if any claim
shall be made or action taken which, if true, would constitute a breach of any
representation, warranty, covenant, agreement, or understanding made by
LookSmart herein, WGBH agrees to give LookSmart prompt notice thereof and WGBH,
shall have the right to contest or join in the contest of such claim or action
and may be represented by counsel chosen by WGBH.
Force Majeure
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13. In the event that production or broadcast of the Series or any program
in the Series is delayed or canceled by reason of act of God, fire, lockout,
strike, or other labor dispute, riot or civil disorder, war or armed
insurrection, enactment, rule, act or order of government, mechanical failure,
or any other force majeure cause or reason demonstrably beyond WGBH's control,
then WGBH shall use its best efforts to produce and/or arrange for broadcast
distribution as soon as possible after any such event.
Miscellaneous
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14. The parties shall notify each other in writing in the event that either
deems this Agreement to be breached and shall give the other part thirty (30)
days to cure such breach before taking action or making a claim on the basis of
such breach.
15. This Agreement is complete and embraces the entire understanding
between the parties. All prior and contemporaneous understandings in connection
with the subject matter herein contained, either oral or written, are null and
void unless expressly set forth herein. No alteration, modification, or waiver,
in whole or in part, of any provision of this Agreement shall be of any effect
unless set forth in writing and signed by both parties hereto.
16. Whenever notice is required to be given or may appropriately be given
hereunder, such notice shall be in writing and shall be delivered to the person
or parties to whom intended at their addresses first stated above.
17. This Agreement is entered into within the Commonwealth of Massachusetts
and shall be governed and construed in accordance with Massachusetts law as if
this Agreement were to be fully performed within the Commonwealth of
Massachusetts, without giving effect to principles of conflicts of laws. The
parties agree to submit solely and exclusively to the jurisdiction of the state
and federal courts of the Commonwealth of Massachusetts to resolve any disputes
arising hereunder.
END OF GENERAL TERMS AND CONDITIONS
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LookSmart
Underwriting Agreement
Page 7
EXHIBIT A
WGBH Educational Foundation
125 Western Avenue
Boston, MA 02134
Attention: Director of Client Services
Dear Sir/Madam:
In addition to LookSmart's direct grant, LookSmart has spent $________________
on promotion, advertising, and related costs.
Sincerely yours,
/s/ Val Landi
Val Landi
Vice President, Marketing
LookSmart