MSN Search Agreement [Amendment No. 6] - Overture Services Inc. and Microsoft Corp.
EXECUTION VERSION
AMENDMENT NO. 6
Effective Date of Amendment No. 6: March 1, 2003
This AMENDMENT NO. 6 ("Amendment No. 6") to that certain MSN Search Agreement
dated effective as of December 19, 2001 (the "Agreement") is made by and among
OVERTURE SERVICES, INC., A DELAWARE CORPORATION ("COMPANY"), and MICROSOFT
CORPORATION, A WASHINGTON CORPORATION ("Microsoft").
RECITALS
The parties desire to amend the Agreement on the terms and conditions provided
herein; and
The parties desire to amend the Agreement to include the MSN Search Site in
Korea.
The parties hereby agree as follows:
AMENDMENT
1. The parties wish to add Korea as a new market per the below specifications:
(a) The "MSN Home Page" for Korea will be: http://www.msn.co.kr or
as reasonably updated by Microsoft with successor URLs during
the Term.
(b) The "MSN Search Site" for Korea will be:
http://search.msn.co.kr or as reasonably updated by Microsoft
with successor URLs during the Term.
(c) The new market for Korea will commence on the Commercial
Launch Date for Korea and end at the end of the Main Period
Term. The date of the Commercial Launch Date for Korea shall
be mutually agreed to by the parties.
(d) Overture Korea (as defined below) will make Company's payments
to Microsoft for the Korean market in Won.
2. Section 1.20 will be modified as follows (amendments in italics):
1.20 "Minimum Queries" means
(i) [*] Queries rendering to the URL http://search.msn.com;
(ii) [*] Queries rendering to the URL http://search.msn.fr;
(iii) [*] Queries rendering to the URL http://search.msn.co.jp; and
(iv) [*] Queries rendering to the URL http://search.msn.co.kr.
3. Definition 1.23 ("MSN Home Page") will be deleted in its entirety and
replaced with the following (amendments in italics):
1.23 "MSN Home Page" means the initial MSN Web Pages in the
international markets, as shown below. This Agreement may be
extended to incorporate other international markets, which will
have attendant URLs, as mutually agreed by the parties or as
reasonably updated by Microsoft with successor URLs during the
Term.
* Certain information on this page has been omitted and filed separately with
the commission. Confidential treatment has been requested with respect to
the omitted portions.
Page 1 of 5 CONFIDENTIAL Overture - Microsoft Amendment No. 6
MSN Search Agreement
<PAGE>
EXECUTION VERSION
<TABLE>
<CAPTION>
Region Market URL(s)
------ ------ ------
<S> <C> <C>
North America US http://www.msn.com (English speaking)
http://www.yupimsn.com (Spanish speaking)
Canada http://www.msn.ca (English speaking)
Non-North America UK http://www.co.uk
Germany http://www.msn.de
France http://www.msn.fr
Japan http://www.msn.co.jp
Korea http://www.msn.co.kr
</TABLE>
4. Definition 1.25 ("MSN Search Site") will be deleted in its entirety and
replaced with the following (amendments in italics):
1.25 "MSN Search Site" means the MSN Search Results Pages in the
international markets shown below. This Agreement may be
extended to incorporate other international markets or
languages in current markets, which will have attendant URLs,
as mutually agreed by the parties or as reasonably updated by
Microsoft with successor URLs during the Term.
<TABLE>
<CAPTION>
Region Market URL(s)
------ ------ ------
<S> <C> <C>
North America US http://search.msn.com (English speaking)
http://busqueda.yupimsn.com/ (Spanish speaking)
Canada http://search.msn.ca (English Speaking)
Non-North America UK http://search.msn.co.uk
Germany http://search.msn.de
France http://search.msn.fr
Japan http://search.msn.co.jp
Korea http://search.msn.co.kr
</TABLE>
5. The following new definitions will be added as follows:
1.46 "Overture Korea" means Overture Services Yuhan Hoesa, a Korean
company.
6. A new Section 2.5.5 ("Coverage") will be added as follows:
2.5.5 Korea. The Selected Terms list for Queries rendering to the
URL http://search.msn.co.kr will be agreed upon in writing.
7. Section 2.13 ("International Subsidiaries") will be deleted in its
entirety and replaced with the following:
Page 2 of 5 CONFIDENTIAL Overture - Microsoft Amendment No. 6
MSN Search Agreement
<PAGE>
EXECUTION VERSION
International Subsidiaries. Company may inform Microsoft that a
subsidiary that is wholly owned, directly or indirectly, by Company
will be responsible for the obligations of Company under this Agreement
with respect to the market served by that wholly-owned subsidiary. Any
such notification or delegation by Company shall not limit Company's
obligations and liabilities to Microsoft under this Agreement, and
Company hereby agrees to guarantee all such obligations and liabilities
in the relevant market. without limitation of the foregoing, Company
has informed Microsoft that (i) Overture Ireland, its wholly-owned
subsidiary, shall be responsible for Company's obligations relating to
the MSN Search Site in the UK market, the MSN Search Site in Germany,
the MSN Search Site in France, (ii) Overture Japan, its wholly-owned
subsidiary, shall be responsible for Company's obligations relating to
the MSN Search Site in Japan and (iii) Overture Korea, its wholly-owned
subsidiary, shall be responsible for Company's obligations relating to
the MSN Search Site in Korea.
8. A new Section 3.2.3.3 will be added as follows:
3.2.3.3 Korea. For the twelve-month period beginning May 1, 2003 and
ending April 30, 2004 ("Guaranteed Phase for MSN Korea"),
Company will pay to Microsoft the greater of (i) the Revenue
Share Payment for the MSN Search Site in Korea as set forth in
Section 3.2.2 and (ii) the Guaranteed Payment for MSN Search
Site in Korea (as defined below).
For the purposes of this Section 3.2.3.3, "Guaranteed Payment
for the MSN Search Site in Korea" means the [*] (not to exceed
the maximum in Table 4, column D) from the MSN Search Site in
Korea.
If Microsoft fails to deliver the Minimum Queries rendering to
the URL http://search.msn.co.kr before April 30, 2004, then
the Guaranteed Phase for MSN Korea will extend until all such
guaranteed Queries are delivered (the "Guaranteed Phase
Extension for MSN Korea"). During the Guaranteed Phase
Extension for MSN Korea, Company will not be required to make
any additional Guaranteed Payments, but Company will continue
to be required to make Revenue Share Payments. Once the
Guaranteed Phase for MSN Korea has concluded, Company shall
pay Microsoft pursuant to Section 3.2.2 for Gross Revenue from
the MSN Search Site in Korea.
Table 4
Guaranteed Payment for the MSN Search Site in Korea
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Page 3 of 5 CONFIDENTIAL Overture - Microsoft Amendment No. 6
MSN Search Agreement
<PAGE>
<TABLE>
<CAPTION>
Column A: Column B: Column C: Column D:
Month Period [*] [*]
-------- -------- -------- --------
<S> <C> <C> <C>
1 May 2003 [*] [*]
2 June 2003 [*] [*]
3 July 2003 [*] [*]
4 August 2003 [*] [*]
5 Sept 2003 [*] [*]
6 Oct 2003 [*] [*]
7 Nov 2003 [*] [*]
8 Dec 2003 [*] [*]
9 Jan 2004 [*] [*]
10 Feb 2004 [*] [*]
11 Mar 2004 [*] [*]
12 April 2004 [*] [*]
</TABLE>
9. Section 3.2.4 will be deleted in its entirety and replaced with the
following:
3.2.4 Company will make all payments due to Microsoft per Section
3.2.1 and 3.2.2 in U.S. Dollars, or other currency as mutually
agreed by the parties within forty-five (45) days after the
end of each calendar month. All payments will be accompanied
by a statement showing in reasonable detail the basis for the
payment(s). Company and Microsoft will mutually agree on
whether Company will make a single payment for all amounts due
hereunder or separate payments for individual markets. The
parties have agreed to make payments in Euros for payments
relating to the Germany and France Search Sites, in British
Pounds for payments relating to the UK Search Site, in Yen for
payments relating to the Japan Search Site and in Won for
payments relating to the Korea Search Site.
10. Section 7.2 will be deleted in its entirety and replaced with the
following:
7.2 Microsoft Extension Right. Microsoft may - at its sole
discretion and in writing - opt to extend the Main Period Term
for two (2) additional two-year periods for one or more
markets covered by this Agreement; provided that one of the
markets is the U.S (English-speaking). The first option to
extend ("First Extension") will allow Microsoft to extend the
Main Period Term for a two-year period commencing on January
1, 2005 and continuing until December 31, 2006, provided
Microsoft notifies Company in writing on or before September
30, 2004 of its intention to enter into the First Extension.
The second option to extend ("Second Extension") will allow
Microsoft to extend the Main Period Term for an additional two
(2) year period commencing on January 1, 2007 and continuing
until December 31, 2008, provided Microsoft notifies Company
in writing on or before September 30, 2006 of its intention to
enter into the Second Extension. In order for Microsoft to
exercise the Second Extension, Microsoft must have exercised
the First Extension for the same MSN Search Site(s). If
Microsoft elects to extend the Main Period Term according to
this Section 7.2, the percentage of revenue Company pays to
Microsoft will be determined by Section 3.2.1 and 3.2.2.
Defined terms herein have the same meaning as set forth in the Agreement, except
as otherwise provided.
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
Page 4 of 5 CONFIDENTIAL Overture - Microsoft Amendment No. 6
MSN Search Agreement
<PAGE>
EXECUTION VERSION
This Amendment No. 6 amends, modifies and supersedes to the extent of any
inconsistencies, the provisions of the Agreement. Except as expressly amended by
this Amendment No. 6, the Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 6 as of the
Amendment No. 6 Effective Date set forth above. All signed copies of this
Amendment No. 6 are deemed originals. This Amendment No. 6 does not constitute
an offer by either party. This Amendment No. 6 is effective upon execution on
behalf of Company and Microsoft by their duly authorized representatives.
MICROSOFT CORPORATION OVERTURE SERVICES, INC.
One Microsoft Way 74 N. Pasadena Avenue, 3rd Floor
Redmond, WA 98052-6399 Pasadena, CA 91103
By /s/ Richard Chin /s/ Todd Tappin
----------------------- -----------------------
(Sign) (Sign)
Richard Chin Todd Tappin
-------------------------- -----------------------
Name(Print) Name(Print)
Director CFO
-------------------------- -----------------------
Title Title
Without limiting Company's obligations hereunder, Overture Services Yuhan Hoesa
hereby executes this Amendment for purposes of assuming the obligations (subject
to the guarantee by Company provided in Section 2.13 of the Agreement) for the
Korean market as provided in Section 2.13 of the Agreement.
Overture Services Yuhan Hoesa
By /s/ J. LARCHER
--------------------------
(Sign)
J. Larcher
--------------------------
Name(Print)
Director
--------------------------
Title
Page 5 of 5 CONFIDENTIAL Overture - Microsoft Amendment No. 6
MSN Search Agreement