ADVERTISING AND PROMOTION AGREEMENT
AGREEMENT made as of the 4th day of July, 1999 (the "Effective
Date"), by and among CBS Corporation, 51 West 52nd Street, New York, New York
10019 (herein called "CBS") and Medscape, Inc., 134 West 29th Street, New York,
New York 10001 (herein called "Medscape"). The term "CBS" shall not include
Westwood One, Inc.
1. GENERAL DEFINITIONS
1.1 "Affiliate" of the Person concerned shall mean a Person that
directly or indirectly (through one or more intermediaries) controls, is
controlled by, or is under common control with such Person concerned.
1.2 "Billboard Ad" shall mean advertising placed on various vehicles or
facilities, including, without limitation, advertising space: (i) on traditional
billboards or electronic signs of various ranging sizes, and (ii) on or in
busses, commuter rails, subways, stations and terminals, transport shelters and
telephone kiosks, so long as such advertising space is owned or controlled by
CBS.
1.3 "CBS Competitor" shall mean any Person, other than CBS, who/which
is engaged either directly, or indirectly through an Affiliate, in radio or
television programming or radio or television program distribution (whether free
over-the-air, cable, telephone, local, microwave, direct broadcast satellite,
via Internet or otherwise) or billboard advertising in North America. A CBS
Competitor shall not include any Person engaged, via an Internet Web Site, in
television or radio program transmission or streaming, (the "Internet Concern"),
unless such Internet Concern: (i) owns or controls, is owned or controlled by,
or is under common control with, a CBS Competitor; or (ii) prominently features,
transmits or promotes Content of a CBS Competitor.
1.4 "Collaboration Agreement" shall mean any one of the following
agreements between CBS and Medscape: (a) this Agreement; (b) the Trademark and
Content Agreement dated as of the Effective Date (the "Trademark and Content
Agreement"); (c) the Stockholders Agreement dated as of the Effective Date; (d)
the Common Stock Purchase Agreement dated as of the Effective Date; and (e) the
Registration Rights Agreement dated as of the Effective Date.
1.5 "Common Stock" shall mean the common stock, $.01 par value per
share, of Medscape.
1.6 "Consumer Health Site" shall mean the Internet Web Site owned by
Medscape that provides healthcare news and healthcare information for consumers.
1.7 "Content" shall mean text, graphics, photographs, video, audio
and/or other data or information (including, without limitation, any of the
foregoing broadcast on television) relating to any subject and/or
advertisements.
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1.8 "Contract Year" shall mean the annual period beginning on the
Effective Date, and each subsequent annual period during the Term beginning on
the anniversary of the Effective Date (as such annual period may be suspended or
extended, and those dates postponed, upon mutual agreement of the parties).
1.10 "Internet" shall mean a global network of interconnected computer
networks, each using the Transmission Control Protocol/Internet Protocol and/or
such other standard network interconnection protocols as may be adopted from
time to time, which is used to transmit Content that is directly of indirectly
delivered to a computer or other digital electronic device for display to an
end-user, whether such Content is delivered through on-line browsers, off-line
browsers, or through "push" technology, electronic mail, broadband distribution,
satellite, wireless or otherwise.
1.11 "Internet Site" or "Web Site" shall mean any site or service
delivering Content on or through the Internet, including, without limitation,
any on-line service such as America Online and Compuserve.
1.12 "New Mark" shall mean a word or words designated by the parties
for use as a new trademark and as part of a URL for the Consumer Health Site
which shall be subject to the mutual agreement of the parties.
1.13 "New Mark Brand(s)" shall mean collectively, the New Mark, the New
Mark URL and any other URL that includes the New Mark and is used for
identifying the Consumer Health Site.
1.14 "New Mark URL" shall mean the New Mark followed by the extension
".com".
1.15 "Person" shall mean individual, partnership, corporation or
organized group of persons, including agencies and other instrumentalities of
governments and states.
1.16 "Professional Health Site" shall mean the Internet Web Site owned
by Medscape that provides healthcare news and healthcare information primarily
for physicians and allied healthcare professionals that is currently located at
the URL www.medscape.com.
1.17 "Term" shall mean the term specified in Section 3.1 below and any
extensions agreed to by the parties hereto.
1.18 "URL Scroll" shall mean the exhibition of a written representation
of a URL in or during (i.e., at any time from the opening frame through end of
the closing credits) a television program (the "Television URL Scroll") or in/on
an Internet Web Site page (the "Internet URL Scroll"). For avoidance of doubt,
the Television URL Scroll and the Internet URL Scroll are hereinafter
collectively referred to as the "URL Scroll".
2. CBS ADVERTISING AND PROMOTION
2.1 (a) CBS shall arrange for the placement of advertising and
promotion in the United States of the Consumer Health Site, the Professional
Health Site and Medscape's other
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products and services in the media category or type set forth in the Advertising
and Promotion placement roster set forth on Exhibit A attached hereto, with an
aggregate value of $150 million. During the first Contract Year, CBS shall
arrange for the placement of advertising in accordance with the advertising plan
in Exhibit B attached hereto. CBS will consult with Medscape with respect to the
media category and type of placement. CBS and Medscape will cooperate to
endeavor to implement the advertising and promotional goals set forth in the
annual media plan presented to CBS by Medscape. The media plan for each Contract
Year shall be consistent with the media plans of prior Contract Years, except
that the advertising dollar amounts for the Contract Year concerned and the
allocation of advertisements during the contract year concerned shall be
mutually agreed upon by the parties. All advertising and promotional materials
shall be subject to the applicable CBS Network Advertising Guidelines and
standard CBS preemption policies. CBS shall not have to make any ad placements
if the exigencies of time or current or future contractual obligations entered
into prior to the time Medscape requests such advertising, prevent or restrict
CBS from doing so.
(b) The value of all broadcast advertising and promotion
provided hereunder shall be based upon the average unit price paid by any
unaffiliated third party, excluding barter, for spots (other than political
spots) purchased during the specific CBS Television Network, CBS Radio Network,
CBS Owned and Operated Television Station, CBS Owned and Operated Radio Station,
or CBS Cable broadcast in which the advertising or promotion occurs. The value
of banner advertising on CBS Internet sites shall be based upon the average
price paid (excluding barter) by unaffiliated third parties for banner
advertising of similar size and placement during a similar period. The value of
the Billboard Ad concerned shall be based upon the average price paid or
payable, excluding barter, for any similar Billboard Ad(s) during the month
prior to the month in which such Billboard Ad is delivered. Medscape will be
treated as a cash-paying customer in a like manner to other cash customers of
similar volume. The following advertisements shall not be offset against the
$150 million of advertising hereunder: any on-air mention or URL Scroll by a
CBS-affiliated (television or radio) station of the URL for the Consumer Health
Site, the New Mark URL or the Identifying URL (as such term is defined in the
Trademark and Content Agreement) on Medscape Programming (as such term is
defined in the Trademark and Content Agreement) obtained by such CBS-affiliated
station from the CBS Newspath feed or equivalent radio feed (other than a
broadcast of the CBS Radio Network). (For avoidance of doubt, "CBS-affiliated
station" is a television or radio station which is not owned and operated by
CBS.)
(c) CBS will provide to Medscape calendar quarterly
statements, or, if available, monthly statements showing the (i) value
attributable to each of the media categories and types with respect to the
advertising and promotions purchased by Medscape during the statement period and
(ii) the calculation of the aggregate value of advertising purchased.
2.2 (a) CBS will maintain accurate books and records which report the
expenditure of the advertising and promotional value by Medscape and information
from which the calculation can be derived. Medscape may, at its own expense,
examine those books and records, as provided in this Section 2.2. Medscape may
make such an examination for a particular statement provided pursuant to Section
2.1(c) only once and such examination must occur within three (3) years after
the date such statement is sent by CBS to Medscape. (CBS will be deemed
conclusively to have sent Medscape the statement concerned at the time
prescribed in
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Section 2.1(c), unless Medscape notifies CBS otherwise with respect to any
statement within thirty (30) days after that designated time.) Medscape may make
those examinations only during CBS's usual business hours, and at the address
set forth herein for the provision of notices to CBS, unless otherwise notified.
Medscape will be required to notify CBS at least ten (10) days before the date
of planned examination. If Medscape's examination has not been completed within
two (2) months from the time Medscape begins it, CBS may require Medscape to
terminate it on seven (7) days notice to Medscape at any time.
(b) If any examination of CBS's books and records discloses
that:
(i) CBS has failed to properly account for
advertising and promotions purchased by Medscape hereunder, then CBS
will make appropriate adjustment(s) to the cumulative total purchased
by Medscape.
(ii) CBS has overstated the value of advertising
purchased by more than 7.5%, then CBS shall reimburse Medscape for its
direct out-of-pocket expenses incurred in identifying such material
overstatement.
2.3 CBS shall have the right:
(a) to suspend and/or withdraw placement of all advertising
and promotion that includes the MEDSCAPE trademark: (i) pending resolution of
any third party claim covering infringement of such third party's rights because
of use by Medscape in the United States of the tradename or trademark "Medscape"
either alone or in combination with any other mark and/or (ii) during such time
as Medscape is enjoined from using the tradename or trademark "Medscape" in the
United States on or in connection with the Consumer Health Site and has not
renamed the Consumer Health Site. Medscape shall rename the Consumer Health Site
within thirty (30) days following the issuance of any injunction or the
resolution of any claim which requires Medscape to cease using the tradename or
trademark "Medscape" in the United States on or in connection with the Consumer
Health Site, it being understood, however, that CBS shall have the sole right
and power to approve the substitute tradename and/or trademark to be used. In
the event that CBS fails to approve the substitute tradename and/or trademark
within the thirty-day period, CBS shall submit a tradename proposal with three
(3) alternate tradenames which appear to be available for Medscape's use on the
Consumer Health Site in the United States based on trademark searches conducted
by CBS, for Medscape's approval, which approval is to be given within ten (10)
days of such submission. For avoidance of doubt, CBS does not and will not make
any representation or warranty with respect to the availability of any alternate
name provided to Medscape by CBS for use on the Consumer Health Site.
Medscape shall thereafter promptly apply for registration of such trademark.
(b) if the New Mark is being used as the principal name or
part of the principal name of the Consumer Health Site, to suspend and/or
withdraw placement of all the advertising and promotion of the Consumer Health
Site: (i) upon CBS's decision to cease use of the New Mark in connection with
any third party claim covering infringement of such third party's rights because
of use by Medscape in the United States of the New Mark either alone or in
combination with any other mark and/or (ii) during such time as Medscape is
enjoined from using the New Mark in the United States on or in connection with
the Consumer Health Site and has not renamed the Consumer Health Site. Medscape
shall rename the Consumer Health Site
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CBS Medscape within ten (10) days following CBS's notice of its decision to
cease use of the New Mark, the issuance of any injunction or the resolution of
any claim which requires Medscape to cease using the New Mark in the United
States on or in connection with the Consumer Health Site. Upon Medscape's
renaming the Consumer Health Site, the placement of advertising for the Consumer
Health Site shall resume using the new name. Medscape will not seek (i)
reimbursement or payment for advertising and promotion time used or (ii) payment
of any of Medscape's conversion costs, in the event that CBS suspends and/or
withdraws placement of advertising and promotion of the Consumer Health Site
hereunder.
2.4 CBS and Medscape shall mutually agree on (i) procedures to maximize
joint selling opportunities between Medscape's and CBS's respective ad sales
forces, and (ii) commissions payable with respect to such selling.
3. TERM
3.1 The term of this Agreement shall begin as of the date hereof and
shall continue in full force and effect for a period of seven (7) consecutive
years from the Effective Date unless it is terminated earlier in accordance with
the terms and conditions stated herein.
3.2 The parties shall negotiate exclusively with each other in good
faith for a period of twelve (12) consecutive months (the "Negotiation Period")
with respect to any extension(s) of the term of this Agreement commencing on the
fifth anniversary of the Effective Date (i.e., July 4, 2004).
4. WARRANTIES, REPRESENTATIONS AND COVENANTS
4.1 (a) CBS REPRESENTS AND WARRANTS THAT:
(i) it has full power and authority to enter into and
fully perform this Agreement; and
(ii) this Agreement has been duly authorized and is
enforceable in accordance with its terms.
(b) MEDSCAPE REPRESENTS AND WARRANTS THAT:
(i) it has full power and authority to enter into and
fully perform its obligations under this Agreement; and
(ii) this Agreement has been duly authorized and is
enforceable in accordance with its terms.
(c) MEDSCAPE COVENANTS THAT:
(i) at all times during the Term, it will comply with
all applicable federal, state, local and foreign laws; and
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(ii) at all times during the Term, the Consumer
Health Site will be maintained in a professional manner consistent with
industry standards.
(iii) advertising and promotion material and any
portion thereof created by or on behalf of Medscape and furnished by
Medscape to CBS and the use thereof shall not violate any law or
infringe upon or violate the rights of any Person.
5. INDEMNIFICATION
5.1 Each party (the "Indemnifying Party") shall at all times indemnify,
hold harmless and defend the other party (collectively, the "Indemnified Party")
from and against any loss, cost, liability or expense (including court costs and
reasonable attorneys' fees) arising out of or resulting from any breach by the
Indemnifying Party of any representation, warranty, covenant or agreement
contained herein. In the event of any such claim, the Indemnified Party shall:
(i) promptly notify the Indemnifying Party of the claim; (ii) allow the
Indemnifying Party to direct the defense and settlement of such claim with
counsel of the Indemnifying Party's choosing; and (iii) provide the Indemnifying
Party, at the Indemnifying Party's expense, with information and assistance that
is reasonably necessary for the defense and settlement of the claim. The
Indemnified Party reserves the right to retain counsel, at the Indemnified
Party's sole expense, to participate in the defense of any such claim. The
Indemnifying Party shall not settle any such claim or alleged claim without
first obtaining the Indemnified Party's prior written consent, which consent
shall not be unreasonably withheld, if the terms of such settlement would
adversely affect the Indemnified Party's rights under this Agreement or
otherwise. If the Indemnifying Party assumes the defense and settlement of the
claim as set forth above, then the Indemnifying Party's only obligation is to
satisfy the claim, judgment or approved settlement.
6. REMEDIES
6.1 CBS shall have the right to terminate this Agreement if (any of the
following occurs):
(a) (i) Medscape materially breaches any material term or
condition of this Agreement and has failed to cure such breach within
thirty (30) days following notice of default. The foregoing cure period
will not apply to: (i) a term or condition for which a specific cure
period is provided, or (ii) a breach incapable of being cured.
(ii) Notwithstanding anything to the contrary
contained in Section 6.1(a)(i) above, Medscape's material breach of the
covenant set forth in Section 4.1(c)(iii) above shall not be cause for
termination of this Agreement, if all the following conditions are met:
(A) Medscape has used its reasonable best
efforts to satisfy the covenant concerned with respect to the
material concerned;
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(B) Medscape promptly withdraws or promptly
notifies CBS to withdraw any material on which there is a
claim by any Person of violation of the law or violation or
infringement of such Person's rights;
(C) Medscape pays damages directly sustained
by CBS in connection with Medscape's breach of such covenant;
and
(D) Medscape indemnifies and holds CBS
harmless (in accordance with Section 5 hereof) from any third
party claim arising out of a breach or alleged breach of such
covenant.
(b) Medscape materially breaches any material term or
condition of any Collaboration Agreement and has failed to cure such breach: (i)
within thirty (30) days following notice of default, except as otherwise set
forth in Section 6.1(b)(ii); (ii) under the Trademark and Content Agreement as
such breach relates to the CBS Mark(s) (as such term is defined in the Trademark
and Content Agreement), within twenty (20) days following notice of default. The
foregoing cure period will not apply to breaches incapable of being cured.
(c) Medscape: (i) becomes insolvent or unable to pay its debts
as they mature or makes an assignment for the benefit of its creditors; (ii) is
the subject of a voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation, or composition for the
benefit of creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing; (iii) becomes the subject of any involuntary petition
in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing; or
(iv) is liquidated or dissolved.
(d) Medscape issues to a CBS Competitor in any one transaction
or series of related transactions, a number of voting securities of Medscape
such that after such issuance or series of issuances, such CBS Competitor
beneficially owns or controls, directly or indirectly, nine percent (9%) or more
of the outstanding shares of Common Stock (the "threshold"), and has failed to
reduce such ownership of Common Stock below the threshold within twenty (20)
days following CBS's notice set forth in 6.1 (d) (ii) below.
(i) Notwithstanding the foregoing however, the
provisions of this subparagraph 6.1(d) shall not apply to a stockholder
of Medscape who beneficially owns or controls, directly or indirectly,
nine percent (9%) or more of the outstanding shares of Common Stock on
the day prior to the date of this Agreement.
(ii) The parties hereby agree that Medscape will give
CBS confidential written notice of its intent to enter into an
agreement for issuance of securities that would result in a stockholder
beneficially owning or controlling, directly or indirectly, nine
percent (9%) or more of the outstanding shares of Common Stock,
together with a description of the party with whom Medscape intends to
effect such a transaction, for the purpose of ascertaining CBS's
opinion whether, as of the date of the notice, such party is a CBS
Competitor. CBS shall have five (5) days from the receipt of such
notice to respond to Medscape. CBS's opinion shall be based solely on
the information provided to CBS in the notice and CBS shall have no
independent duty whatsoever to investigate
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or inquire further. If CBS confirms that the party is not a CBS
Competitor, CBS shall be deemed to have waived any right of CBS
pursuant to this Article 6 in respect of such party and transaction,
unless there were material misstatements or omissions in the
disclosures made by Medscape to CBS in connection with the
transaction..
(e) The Consumer Health Site ceases to operate:
(i) due to circumstances beyond Medscape's control:
(A) for a period of twenty (20) consecutive
days, or
(B) more than two (2) consecutive hours per
week over a sixty (60) day period.
(ii) due to any circumstances other than as described
in Section 6.1(e)(i) above:
(A) for a period of ten (10) consecutive
days; or
(B) more than two (2) consecutive hours per
week over a sixty (60) day period.
(f) For purposes of this Section 6.1: (i) the term "beneficial
ownership" shall have the meaning set forth in Section 13(d) of the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder.
6.2 Medscape shall have the right to terminate this Agreement if:
(a) CBS breaches any material term or condition of this
Agreement and has failed to cure such breach within thirty (30) days following
notice of default. The foregoing cure period will not apply to: (i) a term or
condition for which a specific cure period is provided, or (ii) a breach
incapable of being cured.
(b) CBS breaches any material term or condition of any
Collaboration Agreement and has failed to cure such breach within twenty (20)
days following notice of default. The foregoing cure period will not apply to
breaches incapable of being cured.
6.3 Each party may exercise its right to terminate pursuant to this
Section 6 by sending the other party hereto appropriate notice.
6.4 In the event of termination of this Agreement:
(a) pursuant to Section 6.1, all rights and obligations of the
parties hereto shall terminate except those set forth in Section 5
(Indemnification), Section 7 (Confidentiality), Section 8.1 (Permitted
Assignments), Section 8.2 (Jurisdiction). Section 8.5 (Notice) and Section 8.8
(Governing Law);
(b) (i) pursuant to Section 6.2 and subject to the provisions
of Section 6.5(a) below, Medscape's obligations and CBS's rights and
obligations shall terminate,
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except that CBS's obligation to provide advertising and promotion in
accordance with Section 2 and such other related provisions shall
continue, unless Section 6.4(b)(ii) below applies. (Notwithstanding the
foregoing, the rights and obligations of the parties with respect to
the following Sections shall not terminate: Section 5
(Indemnification), Section 7 (Confidentiality), Section 8.1 (Permitted
Assignments), Section 8.2 (Jurisdiction), Section 8.5 (Notice) and
Section 8.8 (Governing Law)).
(ii) CBS's obligation to provide advertising and
promotion to Medscape shall cease if:
(A) CBS elects to pay Medscape the cash
equivalent of the difference, if any, between (x) One Hundred
and Fifty Million Dollars ($150,000,000) and (y) the amount of
promotional value provided to Medscape during the Term (the
"Shortfall"), subject to Section 6.4(b)(ii)(B) below.
(B) provided CBS has not elected to pay
Medscape the Shortfall, then Medscape shall have the option,
exercisable on any anniversary of the Effective Date, to
require CBS to pay Medscape the applicable Shortfall, in lieu
of CBS's performing its advertising and promotion obligations,
if Medscape can show that CBS is unable to reasonably carry
out its obligation to provide advertising and promotion. CBS
will be deemed unable to carry out its obligation to provide
advertising and promotion if, at any time after termination of
this Agreement, CBS and Medscape fail to reach agreement on a
media plan for the Contract Year concerned (i.e., the period
which, but for termination, would have been the Contract Year
concerned) after good faith efforts by the parties to do so
(I) consistent with media plans executed or applicable in
prior Contract Years or (II) with respect to the first
Contract Year, consistent with the media plan agreed on or
executed by the parties and attached hereto as Exhibit B.
(C) CBS shall pay the Shortfall as follows.
(I) within thirty (30) days after
the end of each Contract Year remaining for (what
would have been) the balance of the Term, CBS shall
pay Medscape a cash payment, calculated on a pro-rata
basis for (what would have been) the balance of the
Term, equal to the difference between (x) the
promotional value which CBS would be, but for the
termination of this Agreement, obligated to provide
to Medscape pursuant to this Agreement for such
Contract Year; and (y) the amount of promotional
value actually provided to Medscape during such
Contract Year, if any; or
(II) CBS may elect, at any time, to
pay the entire Shortfall amount to Medscape in a
lump-sum cash payment equal to the net present value
of the Shortfall, as follows:
(x) any Shortfall paid (at
any time) during the first three years of
the Term shall be calculated at the lower of
(1)
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CBS's short-term debt financing rate or (2)
CBS's average debt financing rate, during
the prior twelve-month period;
(y) any Shortfall paid at
any time after expiration of the third
Contract Year shall be calculated at CBS's
average debt financing rate during the prior
twelve-month period.
(III) All payments made pursuant to
this Section 6.4(b)(ii) shall be made in immediately
available, non-refundable funds wired to Medscape's
account in accordance with instructions to be
provided in writing by Medscape.
6.5 (a) In the event of a material breach by CBS of this Agreement
(which gives rise to Medscape's right to terminate this Agreement), Medscape's
sole and exclusive remedy for such breach shall be the following: (i)
termination under Section 6.2; (ii) acceptance of CBS' payment, or promotion and
advertising, as applicable under Section 6.4; and (iii) termination of the
Trademark and Content Agreement and acceptance of payment of the sum of
$10,000,000 from CBS to Medscape, as liquidated damages and not as a penalty,
for loss by Medscape of the license under the Trademark and Content Agreement,
which shall be Medscape's sole and exclusive remedy under the Trademark and
Content Agreement. None of the foregoing remedies in this Section 6.5(a) may be
exercised by Medscape unless all are exercised by Medscape.
(b) Except as otherwise specified in Section 6.1(a)(ii) above,
in the event of a material breach by Medscape of this Agreement (which gives
rise to CBS's right to terminate this Agreement), CBS' sole and exclusive remedy
for such breach shall be: (i) termination of this Agreement under Section 6.1;
and (ii) to the extent that CBS so elects, termination of any Collaboration
Agreement.
6.6 As between CBS and Medscape, Medscape agrees that under no
circumstances are the shares issued by CBS, under the Common Stock Purchase
Agreement, returnable to Medscape or subject to forfeiture. Medscape covenants
not to seek the return of the shares in any proceeding, between CBS, its
successors and assigns and Medscape, its successors and assigns.
6.7 Except with respect to third party claims for which each partly
shall fully indemnify the other in accordance with the procedures set forth in
paragraph 5.1 above, neither party shall be liable to the other party for any
indirect, incidental, special, consequential, "business interruption" or any
loss of profits hereunder.
7. CONFIDENTIALITY
7.1 Medscape and CBS agree and acknowledge that they may be required to
disclose to each other certain confidential information, including but not
limited to information concerning the other party's online services and web
sites, technology, software, tools, business, or plans for the future in
connection with any of the foregoing, information concerning customers,
suppliers, personnel and other business relationships, sales and marketing
plans, financial information and other confidential information, all of which
shall be deemed
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"Confidential Information" for the purposes of this Section if, with respect to
such information disclosed in tangible form, it is marked "Confidential" or its
equivalent, and if disclosed orally or visually, it is identified as
confidential at the time of disclosure.
7.2 For a period of three (3) years from the date of receipt of any
Confidential Information hereunder, or in perpetuity with respect to source code
or related documentation, the receiving party agrees to protect the
confidentiality of the disclosing party's Confidential Information with at least
the same degree of care that it utilizes with respect to its own similar
proprietary information, but in no event less than a reasonable standard of
care, including without limitation agreeing:
(a) Not to disclose or otherwise permit any other person or
entity access to, in any manner, the Confidential Information, or any part
thereof in any form whatsoever, except that such disclosure or access shall be
permitted to (i) an employee or consultant of the receiving party requiring
access to the Confidential Information in the course of his or her employment or
consulting services in connection with this Agreement and who has agreed in
writing to maintain the confidentiality of the confidential information of third
parties in the receiving party's possession; or (ii) a director, legal advisor,
or financial advisor of the recipient party hereunder, provided that such
parties are bound to maintain the confidentiality of such information and
provided further that they are permitted to use such Confidential Information
only for the purposes of carrying out their fiduciary or other advisory
responsibilities on behalf of the party hereto from which it received such
Confidential Information; and
(b) Not to use the Confidential Information for any purpose
other than to carry out the purposes of this Agreement.
7.3 Nothing in this Section 7 shall restrict the receiving party with
respect to information or data, whether or not identical or similar to that
contained in the Confidential Information, if such information or data: (i) was
rightfully possessed by the receiving party before it was received from the
disclosing party; (ii) is independently developed by the receiving party without
reference to the disclosing party's information or data; (iii) is subsequently
furnished to the receiving party by a third party not under any obligation of
confidentiality with respect to such information nor data, and without
restrictions on use or disclosure; or (iv) is or becomes public or available to
the general public otherwise than through any act or default of the receiving
party.
8. GENERAL
8.1 This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. No party may
assign its respective rights and obligations, in whole or in part, under this
Agreement without prior written consent of the other party hereto. Any attempt
to assign this Agreement without such consent shall be void and of no effect ab
initio. Notwithstanding the foregoing, a party hereto may assign this Agreement
or any of its rights and obligations hereunder to any entity controlling,
controlled by or under common control with, such party, or to any entity that
acquires such party by purchase of stock or by merger or otherwise, or by
obtaining substantially all of such party's assets (the "Permitted Assignee"),
provided that (i) no such assignment shall relieve the assigning party of any of
its
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obligations under this Agreement; (ii) with respect to any assignments effected
by Medscape, no such Assignee (or any division thereof) is a CBS Competitor and
(iii) such Permitted Assignee shall agree in writing to be bound by the terms
and conditions hereof.
8.2 Each party hereto irrevocably submits to the exclusive jurisdiction
of (a) the Supreme Court of the State of New York, New York County; and (b) the
United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement
or any transaction contemplated hereby or thereby. Each party hereto shall
commence any such action, suit or proceeding either in the United States
District Court for the Southern District of New York or if such suit, action or
other proceeding may not be brought in such court for jurisdictional reasons, in
the Supreme Court of the State of New York, New York County. Service of any
process, summons, notice or document by U.S. registered mail to a party's
address set forth below shall be effective service of process for any action,
suit or proceeding in New York with respect to any matters to which it has
submitted to jurisdiction in this Section 8.2. Each party hereto irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the Supreme Court of the State of New York, New York County; or
(ii) the United States District Court for the Southern District of New York, and
hereby and thereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in any inconvenient forum.
8.3 If any provision of this Agreement (or any portion thereof) or the
application of any such provision (or any portion thereof) to any Person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision hereof (or the remaining portion thereof)
or the application of such provision to any other Persons or circumstances, and
such provision will be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect.
8.4 All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand or sent,
postage prepaid, by registered, certified or express mail or reputable overnight
courier service and shall be deemed given when so delivered by hand, or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service), as follows:
(a) if to Medscape,
Medscape, Inc.
134 West 29th Street
New York, N.Y. 10001
Fax: (212) 760-3140
Attention: Chief Executive Officer
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with a copy to:
Brobeck, Phleger & Harrison, LLP
1633 Broadway
New York, N.Y. 10019
Fax: (212) 586-7878
Attention: Alexander D. Lynch, Esq.
and:
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Fax: (212) 336-2222
Attention: John P. Schmitt
(b) if to CBS Corporation,
CBS Corporation
51 West 52nd Street
New York, New York 10019
Fax: (212) 975-9191
Attention: Chief Financial Officer
with a copy to:
CBS Corporation
51 West 52nd Street
New York, New York 10019
Fax: (212) 597-4031
Attention: General Counsel
8.5 The parties to this Agreement are independent contractors. There is
no relationship of partnership, joint venture, employment, franchise, or agency
between the parties. No party shall have the power to bind any other party or
incur obligations on any other party's behalf without such other party's prior
written consent.
8.6 The waiver by any party of a breach or default of any provision of
this Agreement by any other party shall not be construed as a waiver of any
succeeding breach of the same or any other provision, nor shall any delay or
omission on the part of any party to exercise or avail itself of any right,
power or privilege that it has, or may have hereunder, operate as a waiver of
any right, power or privilege by such party.
8.7 This Agreement, including any agreement incorporated herein by
reference, and any Exhibits hereto or thereto, contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter. No party shall be liable or bound to any other
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party in any manner by any representations, warranties or covenants relating to
such subject matter except as specifically set forth herein.
8.8 This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed entirely within such State, without regard to the conflicts
of law principles of such State.
8.9 This Agreement is for the sole benefit of the parties hereto and
their permitted assigns and nothing herein expressed or implied shall give or be
construed to give to any Person, other than the parties hereto and such assigns,
any legal or equitable rights hereunder.
8.10 This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more such counterparts have been signed by each party and delivered
to each other party.
8.11 This Agreement may not be amended except by an instrument in
writing signed on behalf of each party hereto. By an instrument in writing CBS
or Medscape, as the case may be, may waive compliance by the other party with
any term or provision of this Agreement that CBS or Medscape, as the case may
be, was or is obligated to comply with or perform.
8.12 The headings contained in this Agreement hereto are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any capitalized terms used in any Exhibit but not otherwise
defined therein, shall have the meaning as defined in this Agreement. When a
reference is made in this Agreement to a Section or Exhibit, such reference
shall be to a Section of, or an Exhibit to, this Agreement unless otherwise
indicated.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized representatives as of the date first above
written.
CBS CORPORATION
By:
Name:
Title:
MEDSCAPE, INC.
By:
Name:
Title:
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EXHIBIT A
Attached to and forming a part of the Agreement made as
of July 4, 1999 by and among CBS Corporation
and Medscape, Inc.
-------------------------------------------------------------
PLACEMENT POSSIBILITIES:
1. CBS Television Network programming
2. CBS Owned and Operated (a) Television and (b) Radio Stations
programming
3. CBS outdoor billboards
4. CBS Internet Sites
5. CBS Cable
6. Other placements that become available after the Effective Date.
AVAILABLE PLACEMENT TYPES:
-- 30 second units, where available
-- 15 second units, where available
-- 10 second units, where available
-- URL Scrolls Both (5 seconds)
-- On-air mention (15 or 30 seconds, which are priced differently)
-- Banner ads, buttons and sponsorships (measured on a daily, weekly or
monthly basis or as is otherwise appropriate)
-- Credit rolls/sign-offs (5 seconds)
-- Billboard Ads
-- Other placements that become available after the Effective Date.
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EXHIBIT B
Attached to and forming a part of the Agreement made as
of July 4, 1999 by and among CBS Corporation
and Medscape, Inc.
-------------------------------------------------------------
(Section 2.1(a))
CBS shall use commercially reasonable efforts to place $20 million of
advertising for Medscape during the first Contract Year. To the extent of any
shortfalls, such shortfalls will be placed by CBS during the following Contract
Year. CBS will make all commercially reasonable efforts to avoid a material
shortfall.
CBS shall use commercially reasonable efforts to allocate the media
placement to allow for approximately sixty percent (60%) of the placements to
appear on network television; and the parties will mutually agree upon the
balance of the allocation. There may also be variances in the relative
allocations of up to ten percent (10%) for each category. All placements shall
be subject to the following:
1. The final decision on timing and placement will be at the sole
discretion of CBS;
2. CBS shall not be obligated to place any advertising on
Westwood One, Inc. media properties;
3. CBS shall not be obligated to place any advertising on the CBS
Radio Network, unless CBS either owns or controls the CBS
Radio Network.
4. In the event CBS divests itself of any of its media property
segments, CBS will use its commercially reasonable efforts to
have the acquirer of the media property segment concerned
honor the advertising placements or CBS will provide other
placements on other CBS media property segments of similar
value.
5. In the event CBS acquires new media property segments, CBS
will use its commercially reasonable efforts to have
Medscape's advertising placements extend to such new segments.
6. Except as set forth in Section 2.1 (b), all branding
references to the Consumer Health Site or mark during any CBS
News program, whether or not reference is made to the Consumer
Health Site URL, will count as advertising/promotion time,
consistent with CBS's treatment of its other Web Site
transactions.
7. In the event of any disputes, respecting the placement,
allocation or application of advertising under this Media
Plan, the parties' senior executives will first meet and work
in good faith to resolve such dispute, and if such dispute is
not resolved submit such dispute to a non-binding Alternative
Dispute Resolution ("ADR")
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proceeding, with a nationally recognized ADR group such as
JAMS.
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Advertising and Promotion Agreement - CBS Corp. and Medscape Inc.
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