Overture Services Inc. Contracts
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MSN Search Agreement [Amendment No. 7] - Overture Services Inc. and Microsoft Corp.
EXECUTION VERSION
AMENDMENT NO. 7
Effective Date of Amendment No. 7: April 1, 2003
This AMENDMENT NO. 7 ("Amendment No. 7") 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
Denmark, Norway, Sweden and Finland.
The parties hereby agree as follows:
AMENDMENT
1. The parties wish to add Denmark, Norway, Sweden and Finland as new
markets per the below specifications:
(a) The "MSN Home Page" for Denmark will be: http://www.msn.dk or
as reasonably updated by Microsoft with successor URLs during
the Term.
(b) The "MSN Home Page" for Norway will be: http://www.msn.no or
as reasonably updated by Microsoft with successor URLs during
the Term.
(c) The "MSN Home Page" for Sweden will be: http://www.msn.se or
as reasonably updated by Microsoft with successor URLs during
the Term.
(d) The "MSN Home Page" for Finland will be: http://www.msn.fi or
as reasonably updated by Microsoft with successor URLs during
the Term.
(e) The "MSN Search Site" for Denmark will be:
http://search.msn.dk or as reasonably updated by Microsoft
with successor URLs during the Term.
(f) The "MSN Search Site" for Norway will be: http://search.msn.no
or as reasonably updated by Microsoft with successor URLs
during the Term.
(g) The "MSN Search Site" for Sweden will be: http://search.msn.se
or as reasonably updated by Microsoft with successor URLs
during the Term.
(h) The "MSN Search Site" for Finland will be:
http://search.msn.fi or as reasonably updated by Microsoft
with successor URLs during the Term.
(i) The new markets for Denmark, Norway, Sweden and Finland 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 Denmark, Norway, Sweden and
Finland 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;
* 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
EXECUTION VERSION
(iii) [*] Queries rendering to the URL http://search.msn.co.jp;
(iv) [*] Queries rendering to the URL http://search.msn.co.kr.
(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.
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.
Region Market URL(s)
------ ------ ------
North America US http://www.msn.com (English speaking)
http://www.yupimsn.com (Spanish speaking)
Canada http://www.msn.ca (English speaking)
Non-North Ameri 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
Denmark http://www.msn.dk
Norway http://www.msn.no
Sweden http://www.msn.se
Finland http://www.msn.fi
* 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
EXECUTION VERSION
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.
Region Market URL(s)
------ ------ ------
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
5. A new Section 1.46 will be added as follows:
1.46 "Commercial Launch of Company Search Service in XXX (insert
international market)" means the date the localized version of
the Company Search Service first becomes available to end
users of the Company's localized Web Site. By way of example,
Commercial Launch of Company Search Service in France means
the date the French version of the Company Search Service
becomes available to end users via http://www.fr.overture.com.
6. A new Section 2.5.6 ("Coverage") will be added as follows:
2.5.6 Denmark, Norway, Sweden and Finland. The Selected Terms list
for Queries rendering to the URLs http://search.msn.dk,
http://search.msn.no, http://search.msn.se, and
http://search.msn.fi will be agreed upon in writing.
7. 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 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, and the MSN Search
Site in Finland (ii) Overture Japan, its wholly-owned
subsidiary, shall be responsible
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MSN Search Agreement
EXECUTION VERSION
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 3.2.3.4 will be added as follows:
3.2.3.4 Denmark, Norway, Sweden and Finland. For the six-month period
beginning April 1, 2003 and ending September 30, 2003 unless
otherwise agreed by the parties, Company will pay to Microsoft
the following [*] fees (together "[*] Fees for MSN Denmark,
Norway, Sweden and Finland"):
(i) [*] Euros per month for the MSN Search Site in
Denmark;
(ii) [*] Euros per month for the MSN Search Site in
Norway; and
(iii) [*] Euros per month for the MSN Search Site in
Sweden; and
(iv) [*] Euros per month for the MSN Search Site in
Finland.
Commencing October 1, 2003 unless otherwise agreed by the
parties and ending September 30, 2004 (the "Guaranteed Phase
for MSN Denmark, Norway, Sweden and Finland), 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
Sites in Denmark, Norway, Sweden and Finland (as defined
below) and (iii) - only if the Commercial Launch of Company
Search Service in Denmark, Norway, Sweden and Finland has not
taken place - The [*] Fees for MSN Denmark, Norway, Sweden and
Finland for such country, which [*] Fees for MSN Denmark,
Norway, Sweden and Finland 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 3.2.3.4, "Guaranteed Payment
for the MSN Search Sites in Denmark, Norway, Sweden and
Finland" means the [*] (not to exceed the maximum in Table 5,
column D) from the MSN Search Sites in Denmark, Norway, Sweden
and Finland.
* 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
EXECUTION VERSION
Table 5
Guaranteed Payment for the MSN Search Sites in Denmark, Norway, Sweden and
Finland
Column A: Column B: Column C: Column D:
Month Period [*] [*]
--------- --------- --------- --------------------------------------------
[*] [*] [*] [*]
1 Oct 2003 [*] [*] [*] [*] [*]
2 Nov 2003 [*] [*] [*] [*] [*]
3 Dec 2003 [*] [*] [*] [*] 5[*]
4 Jan 2004 [*] [*] [*] [*] [*]
5 Feb 2004 [*] [*] [*] [*] [*]
6 Mar 2004 [*] [*] [*] [*] [*]
7 Apr 2004 [*] [*] [*] [*] [*]
8 May 2004 [*] [*] [*] [*] [*]
9 June 2004 [*] [*] [*] [*] [*]
10 July 2004 [*] [*] [*] [*] [*]
11 Aug 2004 [*] [*] [*] [*] [*]
12 Sept 2004 [*] [*] [*] [*] [*]
If Microsoft fails to deliver the Minimum Queries from the MSN
Search Sites in Denmark, Norway, Sweden and Finland between
October 1, 2003 and September 30, 2004 - or a prorated number
of Queries if the Commercial Launch of Company Search Service
in Denmark, Norway, Sweden or Finland occurs after October 1,
2003 - then the Guaranteed Phase for MSN Denmark, Norway,
Sweden and Finland will extend until all such guaranteed
Queries are delivered (the "Guaranteed Phase Extension for MSN
Denmark, Norway, Sweden and Finland"). During the Guaranteed
Phase Extension for MSN Denmark, Norway, Sweden and Finland,
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
Denmark, Norway, Sweden and Finland has concluded, Company
will pay Microsoft pursuant to Section 3.2.2 for Gross Revenue
from the MSN Search Sites in Denmark, Norway, Sweden and
Finland.
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, and Denmark, Norway, Sweden
and Finland 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.
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 5 of 6 Confidential Overture - Microsoft Amendment No. 7
MSN Search Agreement
EXECUTION VERSION
This Amendment No. 7 amends, modifies and supersedes to the extent of any
inconsistencies, the provisions of the Agreement. Except as expressly amended by
this Amendment No. 7, the Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 7 as of the
Amendment No. 7 Effective Date set forth above. All signed copies of this
Amendment No. 7 are deemed originals. This Amendment No. 7 does not constitute
an offer by either party. This Amendment No. 7 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