Content and Distribution Agreement - Cox Interactive Media Inc. and Tickets.com Inc.
CONTENT AND DISTRIBUTION AGREEMENT BETWEEN
TICKETS.COM, INC. AND COX INTERACTIVE MEDIA, INC. (CIM)
This Content and Distribution Agreement ("Agreement") is made on this
4th day of August, 1999 between Cox Interactive Media, Inc. ("CIM"), a Delaware
corporation with an address at 530 Means Street, Atlanta, Georgia 30318, and
Tickets.com, Inc. ("Tickets.com"), a Delaware corporation with an address at
4675 MacArthur Court, Suite 1400, Newport Beach, California, 92660.
RECITALS
A. CIM is a wholly-owned subsidiary of Cox Enterprises, Inc. ("Cox"), a
leading media company with interests in a wide variety of Internet and
traditional media ventures, including broadcast, cable television and
newspapers.
B. Tickets.com is a leading provider of online ticketing functionality and
related information over the Internet.
C. The parties are conducting negotiations relating to (1) distribution of
the Tickets.com services and content through the CIM network of city
sites, MP3Radio.com radio station websites, and other websites in the
Cox Network (as defined in section 1(a) below),(2) ad rep services to be
performed by CIM, (3) advertising commitments made by Tickets.com to
promote Tickets.com through Cox media properties, including the CIM City
Sites (as defined in section 1(b) below) and MP3Radio.com L.L.C.
("MP3Radio.com"), and (4) joint promotion of the respective services of
the parties.
D. This Agreement and Exhibit One shall constitute the legally binding
obligation of the parties with respect to the matters set forth herein.
TERMS
1. CO-BRANDED TICKETING PAGES
a) Tickets.com shall be obligated to create, upon CIM's reasonable
request, a co-branded ticketing page ("Co-Branded Ticketing
Page") for any website in the Cox Network that is reasonably
suited for ticketing and entertainment functioning. As used
herein, a website is part of the "Cox Network" if it is (i)
directly or indirectly controlled by Cox, where "control" means
the power to direct the management of the entity, whether
through ownership of a majority of outstanding voting equity
interests or otherwise, (ii) operated by an entity in which Cox
owns, directly or indirectly, at least forty percent (40%) of
the outstanding equity interests in such entity, or (iii) is an
MP3Radio.com website for a radio station affiliate of
MP3Radio.com. Except as otherwise provided herein, upon CIM's
request to build a Co-Branded Ticketing Page for a particular
website, the parties shall mutually agree upon a timetable for
development and roll-out of such Co-Branded Ticketing Page.
b) As soon as is reasonably practicable after the date of this
Agreement, Tickets.com will build the Co-Branded Ticketing Pages
for the existing network of CIM city sites (the "CIM City
Sites") and MP3Radio.com websites. Tickets.com shall use its
best efforts to have the Co-Branded Ticketing Pages for the
existing CIM City Sites and MP3Radio.com sites available for
public launch on or before December 1, 1999, subject to CIM's
timely provision of specifications, design input and other
requirements of this Agreement or Exhibit One. CIM may add
additional City Sites and MP3Radio.com websites at any time and
require Tickets.com to promptly build corresponding Co-Branded
Ticketing Pages.
c) CIM and Tickets.com will work together to integrate Tickets.com
ticketing functionality and content into CIM's local events
listings and/or calendar. Tickets.com will update the content on
the Co-Branded Ticketing Pages on a regular basis, and at least
as frequently as it updates the content on the Tickets.com Site.
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d) CIM will have the right, but not the obligation, to link to and
integrate the Co-Branded Ticketing Pages within CIM City Sites
or other Cox Network websites as CIM sees fit, including without
limitation by listing them in category search results and
appropriate "CIM Sites Channels" including, but not limited to,
Sports, Entertainment and Travel. "CIM Sites Channels" are
channels on the CIM City Sites that display a site's navigation,
directory and community products.
e) The parties will mutually agree on design and user interface
standards and specifications for the Co-Branded Ticketing Pages,
including standards for a header, footer, sidebar, and other
design/user interface standards, and attach such specifications
as Exhibit One to this Agreement. Exhibit One may also address
additional details with respect to the development of the
Co-Branded Ticketing Pages, such as size and placement of
branding, timetable for development and launch of new Co-Branded
Ticketing Pages, type of functionality to be included, and other
matters agreed upon by the parties and not inconsistent with
this Agreement. The parties shall use their best efforts to
mutually develop and agree on Exhibit One on or before October
1, 1999. Tickets.com will design and create the Co-Branded
Ticketing Pages in accordance with Exhibit One. Without limiting
the foregoing, it is understood that the ticketing and
ticketing-related functionality of the Co-Branded Ticketing
Pages shall be substantially similar to the ticketing and
ticketing-related functionality of the Tickets.com Site. The
Co-Branded Ticketing Pages will carry both each individual Cox
Network site's branding and Tickets.com branding, displayed in
substantially equivalent location, size and prominence, as will
be defined in Exhibit One.
f) The "look and feel" of the Co-Branded Ticketing Pages will be
consistent with the "look and feel" of the corresponding Cox
Network site. CIM will have final approval over the "look and
feel" of the Co-Branded Ticketing Pages.
g) From time to time, the branding, functionality or look and feel
of any Cox Network website may be changed in CIM's sole
discretion. In the event that any such changes in branding,
functionality or look and feel would make it necessary to change
the design of the Co-Branded Ticketing Pages, Tickets.com will
work in good faith with CIM to have such changes made as soon as
is practicable.
h) Tickets.com will host and serve the Co-Branded Ticketing Pages.
However, the Co-Branded Ticketing Pages shall be made eligible
for roll-up so that the page views and reach may be counted as
part of the Cox Network by third party measuring agencies, such
as Media Metrix. CIM will work with Tickets.com and Media Metrix
to get reach credit for the Co-Branded Ticketing Pages on behalf
of Tickets.com, provided that any additional expenses paid to
third parties shall be the responsibility of Tickets.com.
i) Tickets.com will continue to maintain its own web site at
www.tickets.com ("Tickets.com Site").
2. CONTENT PROVIDED TO CIM FOR INTEGRATION
a) Tickets.com will provide certain content as described below (the
"Content") for display in the Event Guide sections of the CIM
City Sites or on other areas of the Cox Network as CIM deems
appropriate.
b) The Content provided by Tickets.com will include a comprehensive
listing of events and venues for each market served by a CIM
City Site. Events listings must include events for which other
ticketing providers can provide ticket buying functionality as
well as those events for which tickets can be purchased through
Tickets.com. Tickets.com will update the Content on a regular
basis, and at least as frequently as it updates the content on
the Tickets.com Site.
c) The Content provided by Tickets.com will reside on servers
controlled by CIM.
d) Tickets.com and CIM will determine mutually agreeable automated
methods for the transmission and incorporation of updates to the
Content.
e) Tickets.com will provide the Content to CIM, at Tickets.com's
reasonable expense, subject to any existing contractual
restrictions and additional costs incurred by Tickets.com with
respect to particular Content.
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3. ONLINE DISTRIBUTION AND OFF-LINE PROMOTION OF CO-BRANDED TICKETING PAGES
a) CIM will create a link to a ticket buying tool on the "Find it
Fast" feature (or equivalent feature) of each CIM City Site home
page.
b) CIM will feature the Events Calendar tool and/or events listings
on the Entertainment Page of each CIM City Site. CIM will also
feature the ticket-buying tool within the Events Calendar and/or
events listings (or equivalent features) of CIM City Sites.
c) CIM City Sites will promote ticket-buying functionality in
channels and applications that include, but are not limited to
Sports, Entertainment and Travel.
d) CIM will commit to the minimum number of Integration Impressions
on the CIM City Sites as set forth in Table I below. An
"Integration Impression" means each placement of Content from
Tickets.com, a link to Tickets.com or a Co-Branded Ticketing
Page, or a promotion of Tickets.com or a Co-Branded Ticketing
Page, including, but not limited to front-page placement,
programmed search results, keyword banners, channels,
applications and other forms of distribution; provided that an
Integration Impression shall not include an advertising banner
(other than a keyword banner) or a text link in the "Deals and
Steals" section (or equivalent section) of the CIM City Sites.
For the purposes of calculating Integration Impressions, if more
than one text link is included in a search result or content
placement on one web page, such multiple text links shall be
counted as only one Integration Impression.
TABLE I
----------------------------------------------------------------------
YEAR 1 YEAR 2 YEAR 3
----------------------------------------------------------------------
Minimum Integration
Impression Guarantee [***] [***] [***]
----------------------------------------------------------------------
----------------------------------------------------------------------
e) CIM's obligation to provide the level of Integration Impressions
in Table I above shall be contingent upon Tickets.com providing
Content and Co-Branded Ticketing Pages that (i) are comparable
to those other ticketing services available on the Internet with
the most advanced and commercially successful, functionality,
performance, content, and features, whether utilitarian or
aesthetic, and (ii) are able to scale easily with only
additional hardware and to accommodate, at a minimum, the peak
traffic volume expected of one of the top Internet ticketing
sites.
f) CIM's obligation to provide Integration Impressions at this
level is for the entire network of CIM City Sites; CIM does not
make any specific guarantees with respect to any given CIM
website or market.
g) If, for any reason other than Tickets.com's failure to provide
quality content and Co-Branded Ticketing Pages, CIM fails to
deliver the number of Integration Impressions set forth above in
a given one year period, Tickets.com's sole remedy shall be to
require CIM to provide a "make good" of such Integration
Impressions over the following six month period.
h) Subject to existing contractual obligations, Tickets.com will
receive all banner inventory for the key word "tickets" on CIM
City Site and MP3Radio.com search results pages that will point
to the Co-Branded Ticketing Pages for the term. Such banner
inventory shall be used only for the purpose of promoting
Tickets.com or the corresponding Co-Branded Ticketing Page.
i) CIM will use commercially reasonable efforts to assist
Tickets.com in obtaining ticketing rights for venues in CIM
markets, such as by providing Tickets.com with introductions and
contacts with respect to such venues and participating in
negotiations when CIM deems it appropriate. Tickets.com will use
its commercially reasonable efforts in light of technological
and business constraints to ensure that
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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tickets for such venues will not be available through the
websites of any CIM Competitor (as defined in section 13(c)
below).
j) Tickets.com will use its commercially reasonable efforts, in
light of technological and business constraints, to provide
software and hardware at a preferred rate for ticketing
functionality for resale or distribution by CIM to facilitate
the acquisition of ticket inventory by Tickets.com.
4. COMMUNITIES/DATA OWNERSHIP/USAGE REPORTS
a) At CIM's option, the Co-Branded Ticketing Pages for each Cox
Network website will point to corresponding CIM community
products which may include message boards, chat, clubs, home
pages, instant messaging, calendar, address book, email, photos
and any other community products developed by CIM during the
term of this Agreement ("Community Products"). The Co-Branded
Ticketing Pages will not feature or display links to non-CIM
community products without the written permission of CIM.
Tickets.com and CIM will work together, to the extent feasible,
to integrate Community Products into the Co-Branded Ticketing
Pages.
b) CIM and Tickets.com will explore opportunities to synchronize
the registration processes of both parties' sites so users can
have a seamless experience regardless of where they registered.
c) Tickets.com may collect user information on the Co-Branded
Ticketing Pages ("User Data"). Tickets.com's storage, use and
disclosure of User Data will comply with CIM's security
guidelines and CIM's privacy policies as amended from time to
time.
d) CIM and Tickets.com shall jointly own the User Data collected
through the Co-Branded Ticketing Pages.
e) Tickets.com agrees not to use User Data to directly or
indirectly solicit or contact any Cox Network users either
individually or in the aggregate. To the extent that Tickets.com
must share User Data with individual venues, and to the extent
consistent with applicable law and CIM's then current privacy
policy, CIM will honor the contractual agreements and privacy
policies between the venues and Tickets.com.
f) Tickets.com and CIM agree to not sell, disclose, transfer or
rent User Data to any third party without the express permission
of the user.
g) Tickets.com and CIM will provide usage reports to each other on
a monthly basis by email.
5. TICKETS.COM'S PREMIER STATUS ON CIM NETWORK
a) During the term, Tickets.com will be the premier provider of
ticketing functionality on the CIM Network ("Premier Status").
Premier ticketing functionality is defined as the most highly
promoted provider of integrated ticketing functionality.
b) In the event that CIM decides that it needs to add to the Cox
Network features, tools and/or content relating to online
ticketing (including movie tickets inventory, but excluding
events tickets inventory) that would be reasonably considered to
be directly competitive with Tickets.com and that Tickets.com
does not have ("Additional Functionality"), Tickets.com will
have ten (10) days to respond to CIM's written notice of its
desire to provide the Additional Functionality on or before the
later of (i) thirty (30) days or (ii) the date on which
Additional Functionality can reasonably be available to CIM from
a third party, as determined by a proposal by a third party. If
Tickets.com is not able to provide Additional Functionality, CIM
may enter into an agreement with another third party provider to
attain the Additional Functionality and incorporate it into the
CIM Network. In the event that CIM uses a third party provider
for Additional Functionality, Tickets.com Premier Status as
described in 5 (a) above will not be impacted with respect to
Tickets.com existing functionality. Without limiting the
foregoing, the parties agree that CIM may seek movie ticketing
functionality from a third party vendor subject to the notice
provisions of this paragraph.
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6. COX'S PREMIER STATUS AS TICKETS.COM DISTRIBUTION PARTNER
a) Cox Network websites, including specifically MP3Radio.com
websites, will receive Most Favored Nations status for content,
functionality, exclusivity, revenue sharing on transactions and
ticket sales, and any other economic terms, in comparison to any
other deals entered into by Tickets.com that provide a third
party website or online service with any of Tickets.com's
content and/or ticketing functionality. By way of example and
not of limitation, Tickets.com will not enter into any agreement
with a third party that provides such third party with more
favorable terms as described in (i), (ii) or (iii) below without
extending the more favorable terms in such agreement to Cox
Network websites:
i) An agreement under which a third party is allowed to
integrate its content with Tickets.com content in a
manner more favorable to such party than the permitted
integration of CIM's content with Tickets.com;
ii) An agreement under which a third party receives a
greater proportion of the net revenue for e-commerce or
a higher per-ticket commission than Tickets.com pays to
CIM; or
iii) An agreement under which a third party would receive an
additional financial incentive, in terms of an increased
per ticket commission, e-commerce revenue share or
otherwise, for such party's assistance to Tickets.com in
obtaining ticketing rights.
Notwithstanding the foregoing, Tickets.com may enter into an
agreement that provides a third party with more favorable terms
without making such terms available to Cox Network websites if
such agreement (i) is materially dissimilar to this Agreement
and such third party is not described in section 6(b)(i) or
6(b)(ii) below, or (ii) is with an entertainment organization
(such as a venue, event promoter or artist management company)
that provides ticketing inventory to Tickets.com pursuant to
such agreement, as long as such entertainment organization could
not reasonably be considered a competitor of CIM or any Cox
Network website. Tickets.com will allocate the engineering
resources necessary to make CIM as high a priority as any of
Tickets.com's other premier distribution partners.
b) As used in this paragraph, a "Cox Exclusive Area" means each of
the top [***] ADIs (Areas of Dominant Influence, as determined
by Arbitron) and any local consumer market then-served by a CIM
City Site. For [***] years from the date of this Agreement,
Tickets.com will not enter into any arrangement with respect to
any website or online service directed primarily towards
Internet users in a Cox Exclusive Area with any third party that
either (i) provides a broad offering of Internet delivery,
content, Web search functionality, directory and user services,
or (ii) could reasonably be considered a competitor of any CIM
City Site in such Cox Exclusive Area, including, without
limitation the websites for any local print media product,
television (but not radio) broadcast station, cable channel or
local cable operator, if, under any such arrangement covered by
(i) or (ii) above, (w) Tickets.com supplies content to such
party for display on its website(s), (x) the Tickets.com Site
and/or content is integrated with the content and functionality
of such third party's website(s), (y) Tickets.com builds web
pages with ticketing information and functionality that are
private-labeled or co-branded with the brands of such third
party, or (z) such third party is promoted through Tickets.com
advertising in any Cox Exclusive Area. After [***] year from the
date of this Agreement, if Tickets.com determines that it would
like to enter into an agreement described in the previous
sentence above with respect to a Cox Exclusive Area in which CIM
does not then have an existing City Site, it will notify CIM
prior to entering into such agreement, and CIM will have ten
(10) days to respond to Tickets.com as to whether it plans to
launch a City Site in such Cox Exclusive Area within six months
from the date of such notice. If CIM does plan to launch a City
Site in such Cox Exclusive Area within six months and makes
reasonable progress in doing so within three months from the
date of such notice, then Tickets.com may not enter into the
agreement with the third party. Otherwise, Tickets.com may enter
into such agreement.
c) If Tickets.com determines that it would like to enter into an
agreement that is described in the second sentence of section
6(b) above except that it relates to a market not in a Cox
Exclusive Area, it will notify CIM prior to entering into such
agreement, and CIM will have ten (10) days to respond to
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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Tickets.com as to whether it plans to launch a City Site in such
market within six months from the date of such notice. If CIM
does plan to launch a City Site in such market within six months
and makes reasonable progress in doing so within three months
from the date of such notice, then Tickets.com may not enter
into the agreement with the third party. Otherwise, Tickets.com
may enter into such agreement.
d) In the event that Tickets.com enters into an agreement with a
third party to provide tickets or ticketing functionality
through advanced set-top boxes or interactive television,
Tickets.com will provide Cox and its affiliates with Most
Favored Nations status for content, functionality, and revenue
sharing on transactions and ticket sales in comparison to such
third party agreement.
7. CONTENT AND FUNCTIONALITY PROVIDED TO TICKETS.COM SITE
a) Tickets.com may link to CIM content such as local content for
any available local markets in the US, movie listings, local
event listings, reviews and related content ("CIM Content").
b) Tickets.com may link to CIM tools such as calendar, clubs,
message boards, chat, and classifieds ("CIM Tools").
c) CIM agrees to negotiate in good faith on a case-by-case basis
any requests by Tickets.com to display directly on the
Tickets.com Site any CIM content, in light of existing
contractual restrictions on the use of such content and
commercially reasonable revenue-sharing opportunities for the
display of such content.
8. QUALITY/CUSTOMER SUPPORT
a) Tickets.com will answer and/or fix significant bug reports on
the Co-Branded Ticketing Pages within 24 hours of delivery of
written notification via facsimile, email or otherwise.
b) Tickets.com Site and Co-Branded Ticketing Pages will be
accessible from the web twenty-four hours a day, seven days a
week, three hundred sixty-five days a year.
c) Tickets.com will copy CIM on all correspondence with Co-Branded
Ticketing Pages users. CIM will copy Tickets.com on all
correspondence related to the Co-Branded Ticketing Pages from
its users.
d) CIM will not specifically target direct mailings (including
e-mails) to users of the Tickets.com Site without the prior
consent of Tickets.com, provided that CIM may contact those
users for which CIM acquires user data or contact information
from a source other than Tickets.com. Tickets.com will not
specifically target direct mailings (including e-mails) to users
of the Cox Network websites without the prior consent of CIM,
provided that Tickets.com may contact those users for which
Tickets.com acquires user data or contact information from a
source other than CIM.
9. TERM
The term of this Agreement will be for five years. The parties agree to
meet and negotiate in good faith the terms and conditions of renewal no
later than 90 days prior to the expiration of this Agreement.
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10. ADVERTISING REVENUES FOR TICKETS.COM
Co-Branded Ticket Pages
a) CIM will be responsible for selling advertising on the
Co-Branded Ticketing Pages. CIM will also be responsible for ad
serving on the Co-Branded Ticketing Pages.
b) CIM will pay Tickets.com on a quarterly basis [***] percent
([***]%) of the "Net Advertising Revenue" that accrues to CIM
during the term of this Agreement from advertising on the
Co-Branded Ticketing Pages. "Net Advertising Revenue" means the
gross revenue from advertising on the Co-Branded Ticketing Pages
that is collected by CIM during the applicable payment period
minus sales commissions of [***] percent ([***]%) and ad serving
expenses of [***] percent ([***]%).
Tickets.com Site
c) CIM will be Tickets.com's exclusive ad sales rep for Local
Advertising on the Tickets.com Site, and will be responsible for
selling Local Advertising on the Tickets.com Site. CIM will also
be responsible for arranging for serving the Local Advertising
it sells on the Tickets.com Site. As used herein, "Local
Advertising" means advertising seeking to reach less than
seventy percent (70%) of the U.S. market. After six months have
elapsed from the date of this Agreement, Tickets.com will be
able terminate CIM's ad rep services under this paragraph upon
ninety (90) days written notice.
d) Notwithstanding anything in paragraph (c) above, if Tickets.com
determines that it would like to enter into an agreement for ad
rep services for Local Advertising in a market not served by a
CIM ad sales force, it will notify CIM prior to entering into
such agreement, and CIM will have ten (10) days to respond to
Tickets.com as to whether it plans to launch an ad sales force
to serve such market within thirty (30) days from the date of
such notice. If CIM does plan to launch an ad sales force to
serve such market within thirty (30) days, then Tickets.com may
not enter into the agreement with the third party. Otherwise,
Tickets.com may enter into such ad rep agreement.
e) "Tickets.com Local Ad Revenue" shall mean all revenue derived
from the CIM's sale of Local Advertising on the Tickets.com
Site. Tickets.com will pay to CIM a percentage of the
Tickets.com Local Ad Revenue as follows: sales commissions of
[***] percent ([***]%) and ad serving expenses of [***] percent
([***]%). All other revenues, less commission and ad serving
costs will accrue to Tickets.com.
f) Tickets.com will ensure that Tickets.com Site will have
flexibility in programming for advertising and will have at
least the same number of advertising opportunities as on the
channel and application pages on the CIM City Sites (currently
one banner ad and three sponsorship boxes).
11. REVENUES PAID TO CIM BY TICKETS.COM
a) Tickets.com will pay CIM on a quarterly basis [***] percent
([***]%) of the "Net Revenues" that accrues to Tickets.com from
CIM users during the term of this Agreement from e-commerce
opportunities, including but not limited to, merchandise,
travel, events packages and auctions. "Net Revenues" means
e-commerce related transaction revenue (excluding ticket sales),
less costs directly allocated to the goods sold, that accrues to
Tickets.com from the Co-Branded Ticketing Pages during the term
of the applicable payment period. CIM shall use commercially
reasonable efforts to distribute Tickets.com sourced and
initiated e-commerce transactions throughout the CIM City Sites
in relevant channels and applications, subject to existing
contractual obligations. For instance, merchandise may be
promoted in the Searchable Product Application that will reside
in the Shopping Channel and sports events packages will be
promoted in the Sports Channel.
b) Tickets.com will pay CIM on a quarterly basis a commission of
$[***] per ticket. The commission to CIM is intended to
represent [***] percent ([***]%) of the gross margin on tickets
sold over
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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the Internet. In the event that the gross margin on tickets sold
over the Internet improves, CIM will, on an annual basis adjust
the dollar commission based on the increased gross margin, so
that CIM's commission is equal to [***]% of Tickets.com's gross
margin.
c) If CIM has played a primary, substantial and integral role in
assisting Tickets.com in obtaining ticketing rights to any
venue, Tickets.com will pay CIM a per ticket commission of
$[***] or [***] percent ([***]%) of the gross margin per ticket
sold, whichever is greater, for any tickets sold for such venue,
whether through a Co-Branded Ticketing Page, the Tickets.com
Site, another distribution partner of Tickets.com, or any other
method of distribution employed by or on behalf of Tickets.com.
d) If CIM believes it would be able to assist Tickets.com in
obtaining ticketing rights for a category of tickets that would
be sold with a significantly higher per-ticket service charge
than typical venue events, the parties agree to discuss in good
faith whether such assistance would be appropriate and what
compensation would be paid to CIM in the event that Tickets.com
obtains such ticketing rights.
e) In cases where CIM distributes Tickets.com content through the
broadband platform of Excite@Home, the foregoing revenue-sharing
provisions of section 11(a) and section 11(b) will apply only if
the content is integrated so that Tickets.com serves the user a
Co-Branded Ticketing Page that corresponds to the area of the
Excite@Home service programmed by CIM (or any Cox Network
website).
12. TICKETS.COM ADVERTISING THROUGH COX MEDIA PROPERTIES
a) If within sixty (60) days of the date of this Agreement,
MP3Radio.com acquires any number of equity interests in
Tickets.com from CIM, Tickets.com shall be required to spend the
annual minimum amounts on advertising set forth in Table II
below in the following Cox media properties: the CIM City Sites,
AutoConnect.com, ValPak.com, MP3Radio.com (national),and
MP3Radio.com websites of Cox radio station affiliates
(collectively, "Cox Internet Properties"), and also Cox Radio
Stations, Cox Newspapers, Cox Television Stations, ValPak and
Cox Communications (cable).
TABLE II
---------------------------------------------------------------
Guaranteed Advertising YEAR 1 YEAR 2 YEAR 3
Expenditure
---------------------------------------------------------------
---------------------------------------------------------------
CIM City Sites [***] [***] [***]
---------------------------------------------------------------
MP3Radio.com (national) [***] [***] [***]
---------------------------------------------------------------
MP3Radio.com (Cox [***] [***] [***]
Radio affiliate
websites only)
---------------------------------------------------------------
AutoConnect.com [***] [***] [***]
---------------------------------------------------------------
ValPak.com [***] [***] [***]
---------------------------------------------------------------
[SUBTOTAL FOR COX [[***]] [[***]] [[***]]
INTERNET PROPERTIES]
---------------------------------------------------------------
---------------------------------------------------------------
Cox Radio Stations [***] [***] [***]
---------------------------------------------------------------
---------------------------------------------------------------
Discretionary (i.e. [***] [***] [***]
any Cox Property
listed in Section
12(a) above)
---------------------------------------------------------------
Total [***] [***] [***]
---------------------------------------------------------------
b) If within sixty (60) days of the date of this Agreement,
MP3Radio.com does not acquire any equity interests in
Tickets.com from CIM, Tickets.com shall be required to spend the
annual minimum amounts on advertising in the Cox media
properties listed in section 12(a) above as set forth in Table
III below.
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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TABLE III
---------------------------------------------------------------
Guaranteed Advertising YEAR 1 YEAR 2 YEAR 3
Expenditure
---------------------------------------------------------------
---------------------------------------------------------------
CIM City Sites [***] [***] [***]
---------------------------------------------------------------
MP3Radio.com (national) [***] [***] [***]
---------------------------------------------------------------
MP3Radio.com (Cox Radio [***] [***] [***]
affiliate websites only)
---------------------------------------------------------------
AutoConnect.com [***] [***] [***]
---------------------------------------------------------------
ValPak.com [***] [***] [***]
---------------------------------------------------------------
[SUBTOTAL OF COX [[***]] [[***]] [[***]]
INTERNET PROPERTIES]
---------------------------------------------------------------
---------------------------------------------------------------
Cox Radio Stations [***] [***] [***]
---------------------------------------------------------------
---------------------------------------------------------------
Discretionary (i.e. any [***] [***] [***]
Cox Property listed in
Section 12(a) above)
---------------------------------------------------------------
Total [***] [***] [***]
---------------------------------------------------------------
c) CIM may, at any time in its discretion, elect to decrease the
annual minimum expenditures set forth in Table II or Table III
above with respect to the Cox Internet Properties. If CIM
reduces the annual minimums, it may require Tickets.com to
re-allocate up to half of the guaranteed minimum expenditures to
other Cox Internet Properties, provided that CIM will make good
faith efforts to allocate Tickets.com's expenditures to Cox
Internet Properties that CIM believes will be useful and
attractive means of promoting Tickets.com.
d) With respect to advertising on the CIM City Sites, Tickets.com
shall make ad buys at a CPM of $[***]. With respect to ad buys
in other Cox media properties, Tickets.com shall be entitled to
the average rate paid by advertisers on such properties for ad
buys of a similar dollar amount and in consideration of the
prominence of the advertisements. The terms for such advertising
(other than rates) will be the same terms found in the standard
terms and conditions for such advertising.
e) Wherever commercially reasonable and appropriate,Tickets.com
advertisements in Cox media properties will include a specific
mention of the corresponding CIM City Site (by applicable brand)
in the market for which the Co-Branded Ticketing Pages are
available (e.g. "available through [nameofCIMsite.com]").
13. TERMINATION
a) Either party may terminate if the other party materially
breaches this Agreement and the breach remains uncured for a
period of ninety (90) days.
b) In the event of a Change of Control Transaction with respect to
Tickets.com, where the acquiring party in such transaction is a
"Competitor" as defined in c) below, Tickets.com agrees that:
(i) the Tickets.com branding on the Co-Branded Ticketing Pages
will remain unchanged and no additional or different branding,
other than CIM branding, will be displayed; (ii) the content and
functionality of the Tickets.com and Co-Branded Ticket Pages
will remain at least at the level that it exists at the time of
the Change of Control Transaction; and (iii) Tickets.com will
make available to CIM all content and functionality available on
the Tickets.com Site (or subsequent site).
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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c) For the purposes hereof, (i) a "Competitor" shall mean an entity
which (a) acts as a provider of a broad offering of Internet
delivery, content, search, directory and user services to a
local consumer market and (b) is competitive with CIM; (ii)
"Change of Control Transaction" shall mean with respect to a
particular corporation (a) any merger, share exchange or other
acquisition (or series of related transactions of such nature)
as a result of which the holders of voting securities of the
corporation immediately prior thereto do not continue to own
beneficially voting securities representing 50% or more of the
total voting securities of the corporation (or any successor
entity or parent corporation) immediately thereafter or (b) a
sale or transfer of all or substantially all of a corporation's
assets.
d) CIM may terminate this Agreement if Tickets.com is not one of
the top providers in terms of online ticketing functionality and
tools (excluding ticket inventory) based on commercially
reasonable standards. Tickets.com may terminate this Agreement
if CIM's City Sites are not among the top local websites in
terms of tools and functionality based on commercially
reasonable standards.
14. WARRANTY AND INDEMNITY
a) Tickets.com will defend, indemnify and hold harmless CIM, Cox
Enterprises, Inc., and all of their affiliates from claims
arising from the content or transactions on the Tickets.com Site
or the Co-Branded Ticketing Pages (other than content provided
by CIM), or claims that its Content or transactions related
thereto infringe or violate any federal, state or local law,
third party copyright, patent, trade secret, trademark, right of
publicity or right of privacy or contains any defamatory
content.
b) CIM will defend, indemnify and hold harmless Tickets.com from
claims arising from content on the Cox Network, other than the
content or transactions provided by or on behalf of Tickets.com,
including claims that the content infringes or violates any
federal, state or local law, third party copyright, patent,
trade secret, trademark, right of publicity or right of privacy
or contains any defamatory content.
15. LIMITATION OF LIABILITY
Except for liability for indemnity, neither party will have liability
for any damages other than direct damages. Each party's liability will
be limited to the amounts actually paid by Tickets.com.
16. GENERAL
a) With each payment, each party will provide the other
documentation reasonably detailing the calculation of the
payment. Each party will maintain accurate records with respect
to the calculation of all payments due under this Agreement. No
more than once per year, either party may cause an independent
Certified Public Accountant to inspect the records of the other
reasonably related to the calculation of such payments. The fees
charged by such Certified Public Accountant in connection with
the inspection will be paid by the party initiating the audit,
unless the Certified Public Accountant discovers an underpayment
of greater than 10%, in which case the other party will pay such
fees.
b) CIM and Tickets.com shall jointly prepare, and determine the
timing of, any press release or other announcement to the public
relating to the transaction described in this Agreement. Prior
to the execution of any Definitive Agreement, neither of the
parties hereto, nor their respective affiliates, shall make any
public announcement with respect to this Agreement or the
transaction contemplated hereby without the express consent of
the other party as to form and content.
c) This Agreement is the complete and exclusive agreement between
the parties with respect to the subject matter hereof,
superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement
may only be modified, or any rights under it waived, by a
written document executed by both parties.
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d) This Agreement may be executed in counterparts, each of which
when taken together shall constitute one and the same
instrument.
AGREED as of the date first written above:
TICKETS.COM, INC. COX INTERACTIVE MEDIA, INC.
By: ____________________________ By: ____________________________
Name: __________________________ Name: __________________________
Title: _________________________ Title: _________________________
Date: __________________________ Date: __________________________
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