MSN Search Agreement [Amendment No. 8] - Overture Services Inc. and Microsoft Corp.
EXECUTION VERSION
AMENDMENT NO. 8
Effective Date of Amendment No. 8: April 1, 2003
This AMENDMENT NO. 8 ("Amendment No. 8") 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;
The parties desire to amend the Agreement to include the MSN Search Site in
Italy, Spain and the Netherlands.
The parties hereby agree as follows:
AMENDMENT
1. The parties wish to add Italy, Spain and the Netherlands as new markets
per the below specifications:
(a) The "MSN Home Page" for Italy will be: http://www.msn.it or as
reasonably updated by Microsoft with successor URLs during the
Term.
(b) The "MSN Home Page" for Spain will be: http://www.msn.es or as
reasonably updated by Microsoft with successor URLs during the
Term.
(c) The "MSN Home Page" for the Netherlands will be: http://www.msn.nl
or as reasonably updated by Microsoft with successor URLs during
the Term.
(d) The "MSN Search Site" for Italy will be: http://search.msn.it or as
reasonably updated by Microsoft with successor URLs during the
Term.
(e) The "MSN Search Site" for Spain will be: http://search.msn.es or as
reasonably updated by Microsoft with successor URLs during the
Term.
(f) The "MSN Search Site" for the Netherlands will be:
http://search.msn.nl or as reasonably updated by Microsoft with
successor URLs during the Term.
(g) The new markets for Italy, Spain and the Netherlands will commence
on the Commercial Launch Dates for each market and end at the end
of the Main Period Term. The date of the Commercial Launch Dates
for Italy, Spain and the Netherlands shall be mutually agreed to by
the parties.
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;
(iv) [*] Queries rendering to the URL http://search.msn.co.kr;
* 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.
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MSN Search Agreement
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EXECUTION VERSION
(v) [*] Queries rendering to the URL http://search.msn.dk if the
Commercial Launch of Company Search Service in Denmark occurs
on or before October 1, 2003 or a prorated number of Queries
if the Commercial Launch of Company Search Service in Denmark
occurs after October 1, 2003;
(vi) [*] Queries rendering to the URL http://search.msn.no if the
Commercial Launch of Company Search Service in Norway occurs
on or before October 1, 2003 or a prorated number of Queries
if the Commercial Launch of Company Search Service in Norway
occurs after October 1, 2003;
(vii) [*] Queries rendering to the URL http://search.msn.se if the
Commercial Launch of Company Search Service in Sweden occurs
on or before October 1, 2003 or a prorated number of Queries
if the Commercial Launch of Company Search Service in Sweden
occurs after October 1, 2003;
(viii) [*] Queries rendering to the URL http://search.msn.fi if the
Commercial Launch of Company Search Service in Finland occurs
on or before October 1, 2003 or a prorated number of Queries
if the Commercial Launch of Company Search Service in Finland
occurs after October 1, 2003;
(ix) [*] Queries rendering to the URL http://search.msn.it if the
Commercial Launch of Company Search Service in Italy occurs on
or before June 1, 2003 or a prorated number of Queries if the
Commercial Launch of Company Search Service in Italy occurs
after June 1, 2003;
(x) [*] Queries rendering to the URL http://search.msn.es if the
Commercial Launch of Company Search Service in Spain occurs on
or before September 1, 2003 or a prorated number of Queries if
the Commercial Launch of Company Search Service in Spain
occurs after September 1, 2003;
(xi) [*] Queries rendering to the URL http://search.msn.nl if the
Commercial Launch of Company Search Service in the Netherlands
occurs on or before September 1, 2003 or a prorated number of
Queries if the Commercial Launch of Company Search Service in
the Netherlands occurs after September 1, 2003.
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.
<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 UK http://www.co.uk
America Germany http://www.msn.de
France http://www.msn.fr
Japan http://www.msn.co.jp
Korea http://www.msn.co.kr
</TABLE>
* 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.
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EXECUTION VERSION
<TABLE>
<CAPTION>
Region Market URL(s)
------ ------ ------
<S> <C> <C>
Denmark http://www.msn.dk
Norway http://www.msn.no
Sweden http://www.msn.se
Finland http://www.msn.fi
Italy http://www.msn.it
Spain http://www.msn.es
Netherlands http://www.msn.nl
</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
Denmark http://search.msn.dk
Norway http://search.msn.no
Sweden http://search.msn.se
Finland http://search.msn.fi
Italy http://search.msn.it
Spain http://search.msn.es
Netherlands http://search.msn.nl
</TABLE>
5. A new Section 2.5.7 ("Coverage") will be added as follows:
2.5.7 Italy, Spain and the Netherlands. The Selected Terms list for
Queries rendering to the URLs http://search.msn.it,
http://search.msn.es, and http://search.msn.nl will be agreed
upon in writing.
6. Section 2.13 ("International Subsidiaries") will be deleted in its
entirety and replaced with the following (amendments in italics):
2.13 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
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EXECUTION VERSION
Search Site in the UK market, the MSN Search Site in Germany,
the MSN Search Site in France, the MSN Search Site in Denmark,
the MSN Search Site in Norway, the MSN Search Site in Sweden,
the MSN Search Site in Finland, the MSN Search Site in Italy,
the MSN Search Site in Spain, and the MSN Search Site in the
Netherlands (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.
7. A new Section 3.2.3.5 will be added as follows:
3.2.3.5 Italy. Company will pay to Microsoft a one time [*] fee for
MSN Italy equal to [*] Euros.
Commencing June 1, 2003 unless otherwise agreed by the parties
and ending May 31, 2004 (the "Guaranteed Phase for MSN Italy),
Company will pay to Microsoft on a monthly basis the greater
of (i) the Revenue Share Payment for the MSN Search Sites as
set forth in Section 3.2.2, and (ii) the Guaranteed Payment
for the MSN Search Site in Italy (as defined below).
For the purposes of this Section 3.2.3.5, "Guaranteed Payment
for the MSN Search Site in Italy" means the [*] (not to exceed
the maximum in Table 6, column D) from the MSN Search Sites in
Italy.
Table 6
Guaranteed Payment for the MSN Search Sites in Italy
<TABLE>
<CAPTION>
Column A: Column B: Column C: Column D:
Month Period [*] [*]
-------- --------- --------- ---------
<S> <C> <C> <C>
1 Jun 2003 [*] [*]
2 Jul 2003 [*] [*]
3 Aug 2003 [*] [*]
4 Sept 2003 [*] [*]
5 Oct 2003 [*] [*]
6 Nov 2003 [*] [*]
8 Dec 2003 [*] [*]
8 Jan 2004 [*] [*]
9 Feb 2004 [*] [*]
10 Mar 2004 [*] [*]
11 Apr 2004 [*] [*]
12 May 2004 [*] [*]
</TABLE>
* 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.
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EXECUTION VERSION
If Microsoft fails to deliver the Minimum Queries from the MSN
Search Site in Italy between June 1, 2003 and May 31, 2004 -
or a prorated number of Queries if the Commercial Launch of
Company Search Service in Italy occurs after June 1, 2003 -
then the Guaranteed Phase for MSN Italy will extend until all
such guaranteed Queries are delivered (the "Guaranteed Phase
Extension for MSN Italy"). During the Guaranteed Phase
Extension for MSN Italy, 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 Italy has concluded, Company will pay
Microsoft pursuant to Section 3.2.2 for Gross Revenue from the
MSN Search Site in Italy.
8. A new Section 3.2.3.6 will be added as follows:
3.2.3.6 Spain and the Netherlands. For the four-month period beginning
April 1, 2003 and ending July 31, 2003 unless otherwise agreed
by the parties, Company will pay to Microsoft the following
[*] fees for Spain and Netherlands (together "[*] Fees for MSN
Spain and Netherlands"):
(h) [*] Euros per month for the MSN Search Site in Spain; and
(ii) [*] Euros per month for the MSN Search Site in the
Netherlands.
Commencing August 1, 2003 unless otherwise agreed by the
parties and ending July 31, 2004 (the "Guaranteed Phase for
MSN Spain and the Netherlands), Company will pay to
Microsoft on a monthly basis the greater of (i) the Revenue
Share Payment for the MSN Search Sites as set forth in
Section 3.2.2, and (ii) the Guaranteed Payment for the MSN
Search Site in Spain and the Netherlands (as defined below)
and (iii) - only if the Commercial Launch of Company Search
Service in Spain and the Netherlands has not taken place for
a particular country - the [*] Fees for MSN Spain and the
Netherlands, which [*] Fees for MSN Spain and the
Netherlands shall be pro-rated in the event of a partial
month. For the avoidance of doubt, Company will make no
payment to Microsoft during the period between the
Commercial Launch of Company Search Service and the
Commercial Launch Date; however the parties will make best
efforts to coordinate these respective dates.
For the purposes of this Section 3.2.3.6, "Guaranteed
Payment for the MSN Search Site in Spain and the
Netherlands" means the [*] (not to exceed the maximum in
Table 7, column D) from the MSN Search Sites in Spain and
the Netherlands.
* 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.
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EXECUTION VERSION
Table 7
Guaranteed Payment for the MSN Search Sites in Spain and the Netherlands
<TABLE>
<CAPTION>
Column A: Column B: Column C: Column D:
Month Period [*] [*]
--------- --------- --------- ------------------------------------
<S> <C> <C> <C> <C> <C>
[*] [*] [*] [*]
1 Aug 2003 [*] [*] [*] [*]
2 Sep 2003 [*] [*] [*] [*]
3 Oct 2003 [*] [*] [*] [*]
4 Nov 2003 [*] [*] [*] [*]
5 Dec 2003 [*] [*] [*] [*]
6 Jan 2004 [*] [*] [*] [*]
7 Feb 2004 [*] [*] [*] [*]
8 Mar 2004 [*] [*] [*] [*]
9 Apr 2004 [*] [*] [*] [*]
10 May 2004 [*] [*] [*] [*]
11 June 2004 [*] [*] [*] [*]
12 July 2004 [*] [*] [*] [*]
</TABLE>
If Microsoft fails to deliver the Minimum Queries from the MSN
Search Sites in Spain and the Netherlands between August 1,
2003 and July 31, 2004 - or a prorated number of Queries if
the Commercial Launch of Company Search Service in Spain and
the Netherlands occurs after August 1, 2003 - then the
Guaranteed Phase for MSN Spain and the Netherlands will extend
until all such guaranteed Queries are delivered (the
"Guaranteed Phase Extension for MSN Spain and the
Netherlands"). During the Guaranteed Phase Extension for MSN
Spain and the Netherlands, 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 Spain and the Netherlands has
concluded, Company will pay Microsoft pursuant to Section
3.2.2 for Gross Revenue from the MSN Search Sites in Spain and
the Netherlands.
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, France, Denmark, Norway, Sweden,
Finland, Italy, Spain and the Netherlands 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.
* 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.
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EXECUTION VERSION
Defined terms herein have the same meaning as set forth in the Agreement, except
as otherwise provided.
This Amendment No. 8 amends, modifies and supersedes to the extent of any
inconsistencies, the provisions of the Agreement. Except as expressly amended by
this Amendment No. 8, the Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 8 as of the
Amendment No. 8 Effective Date set forth above. All signed copies of this
Amendment No. 8 are deemed originals. This Amendment No. 8 does not constitute
an offer by either party. This Amendment No. 8 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/ William Demas
--------------------------- ---------------------------
(Sign) (Sign)
Richard Chin William Demas
----------------------------- ---------------------------
Name(Print) Name(Print)
Director SVP & GM
--------------------------- ---------------------------
Title Title
Without limiting Company's obligations hereunder, Overture Services (Ireland)
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
UK market as provided in Section 2.13 of the Agreement.
OVERTURE SEARCH SERVICES (IRELAND)
LIMITED
By /s/ J. Larcher
---------------------------
(Sign)
J. Larcher
---------------------------
Name(Print)
Director
---------------------------
Title
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MSN Search Agreement