JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT is made as of March 19, 1999 by and
between LYCOS, INC. ("Lycos"), a corporation organized under the laws of the
State of Delaware, United States of America, and MIRAE CORPORATION, a CHUSIK
HOESA organized under the laws of the Republic of Korea ("Mirae").
RECITALS
A. Lycos provides a World Wide Web navigation, search, directory and
community service which is supported by advertising and electronic commerce.
Lycos has exclusive worldwide rights to certain technology and knowhow used in
providing such service. Lycos is interested in providing a comparable service,
as culturally adapted and with suitable local content, for the Republic of Korea
market through a joint venture with Mirae.
B. Mirae is interested in participating with Lycos in the joint
venture, and has various knowledge, experience and resources which would be of
benefit to the joint venture.
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. INCORPORATION OF LYCOS KOREA. As promptly as possible after the
execution of this Agreement, the parties shall cause a CHUSIK HOESA to be
incorporated under the laws of the Republic of Korea (the "Company") as follows:
1.1 NAME. The name of the Company shall be "Lycos Korea Chusik
Hoesa" in Korean and "Lycos Korea, Inc." in English.
1.2 AUTHORIZED CAPITAL. The authorized capital of the
Company shall be [***] consisting of one common class of shares, and the
Company shall be authorized to issue 20,000 shares of [***] par value per
share (collectively, the "Stock") at the time of establishment.
1.3 SUBSCRIPTION. At the time of establishment of the
Company, each of Lycos and Mirae shall subscribe for 10,000 shares of Stock
having an aggregate par value of [***] for a total subscription of 20,000
shares of Stock having an aggregate par value of [***].
1.4 LEGENDS ON SHARE CERTIFICATES. Any share certificate
issued by the Company to evidence any shares of stock of the Company issued to
Lycos or Mirae shall bear the following legend:
"TRANSFER OF THE SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE JOINT VENTURE AGREEMENT
BETWEEN LYCOS, INC. AND
***A CONFIDENTIAL PORTION OF THE MATERIAL HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
MIRAE CORPORATION DATED _________, 1999, AND TO THE
SHAREHOLDERS AGREEMENT BETWEEN LYCOS, INC. AND MIRAE
CORPORATION DATED __________, 1999, COPIES OF WHICH ARE ON
FILE AT THE PRINCIPAL OFFICE OF THE COMPANY IN SEOUL,
KOREA."
1.5 INITIAL DIRECTORS. The initial directors of the Company
shall be as follows:
Edward M. Philip
Eric J. Gerritsen
Moon Soul Chung
Kyung Dal Cho
1.6 ADDRESS OF REGISTERED OFFICE. The address of the
registered office of the Company shall be initially as follows:
Lycos Korea, Inc.
c/o Mirae Corporation
#1309, Korea Stock Exchange, Annex Bldg.,
33, Yoidodong, Youngdungpo-gu
Seoul, Korea 150-010
1.7 FISCAL YEAR. The fiscal year of the Company shall end on
July 31, and the initial fiscal year shall be the stub period from the date of
incorporation of the Company through July 31, 1999.
1.8 ACCOUNTING AND BOOKS AND RECORDS. The Company shall keep
accurate books of account and financial and related records in accordance with
generally accepted Korean accounting principles, standards and procedures,
consistently applied. Upon reasonable prior notice and during normal business
hours, the Company shall make available at its principal office in Seoul, Korea
for inspection by Lycos and Mirae, and their designated representatives, the
books of account and records of the Company.
1.9 ARTICLES. The Articles of Incorporation of the Company
shall be in the form of the attached EXHIBIT A.
1.10 COSTS AND EXPENSES. The Company shall bear all costs and
expenses directly relating to the incorporation of the Company in the Republic
of Korea, including without limitation registration fees, notary fees, stamp
duties and the like, and, to the extent permitted by law, attorneys' fees. Mirae
shall advance any such expenses when and as required, and Mirae shall be
entitled to prompt reimbursement of such expenses by the Company upon the
completion of its incorporation.
1.11 ASSISTANCE. Mirae shall provide such reasonable
assistance in connection with the incorporation of the Company as may be
required, including without limitation assistance in connection with the
preparation or filing of any reports, notices or other filings required to be
made in the Republic of Korea by the Company to or with any Korean governmental
authority.
2. TECHNOLOGY LICENSES..
2.1 LICENSING AGREEMENTS. As promptly as possible after the
incorporation of the Company, Lycos shall enter into license agreements with the
Company in the forms attached as EXHIBITS B-1 AND B-2 (the "License
Agreements"). The rights of the Company under the License Agreements shall
continue in accordance with the terms thereof notwithstanding any change in the
ownership of Lycos, any transfer of the assets or business of Lycos, or any
merger, consolidation, reorganization or recapitalization affecting Lycos.
2.2 ADDITIONAL TECHNOLOGIES. Lycos shall from time to time
enter into good faith negotiations with the Company regarding the licensing by
Lycos to the Company of additional technologies used by Lycos and not covered by
the License Agreements, to the extent such additional technologies are required
to maintain a similar look and feel between the services offered by Lycos and
the services offered by the Company. The licensing of any such additional
technologies by Lycos to the Company shall be subject to the execution of a
definitive agreement on mutually acceptable terms and conditions, which may
include provision for reasonable compensation to Lycos.
3. SHAREHOLDER AGREEMENT. In connection with the issuance of Stock to
Lycos and Mirae, Lycos and Mirae shall enter into a shareholder agreement in the
form of the attached EXHIBIT C (the "Shareholder Agreement").
4. MIRAE LOAN FACILITY. As promptly as possible after the incorporation
of the Company, Mirae shall enter into a loan agreement with the Company (the
"Loan Agreement") by which Mirae agrees to make loans (collectively, the
"Loans") to the Company as follows:
4.1 MAXIMUM AGGREGATE COMMITMENT. The maximum aggregate amount of
the Loans shall be [***] (the "Maximum Aggregate Commitment").
4.2 ADVANCES. Advances of the Loans shall be made as follows:
(a) promptly after the execution of the Loan
Agreement, Mirae shall advance to the Company [***] (the "Initial Advance");
(b) on the one (1) year anniversary date of
the Initial Advance, or at such earlier time as may be agreed between Mirae
and the Company, Mirae shall advance to the [***] Company (the "Second
Advance"); and
***A CONFIDENTIAL PORTION OF THE MATERIAL HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
(c) after making the Second Advance, Mirae shall from
time to time advance to the Company such amounts as may be required by the
Company to meet its financial obligations or Business Goals (as defined below);
provided, however, that the maximum amount of Loans outstanding at any one time
under the Loan Agreement shall not exceed the amount of the Maximum Aggregate
Commitment.
4.3 MATURITY DATE. "Maturity Date" shall mean the 20th
anniversary date of the Initial Advance, as automatically extended for up to
four (4) consecutive five (5) year periods unless the Company, by unanimous
affirmative vote of its board of directors, elects to fix the maturity date of
the Loans at the end of the initial period or at the end of any subsequent
extension period and gives written notice of such election to Mirae not less
than six (6) months prior to the end of the initial period or any subsequent
extension period. The principal amount of all Loans outstanding under the Loan
Agreement on the Maturity Date shall be due and payable on the Maturity Date.
4.4 APPLICABLE RATE. "Applicable Rate" means, at any point in
time, the higher of (a) eight percent (8%), or (b) the overdraft interest rate
prescribed by Korean law (or such equivalent rate as may be required from time
to time to avoid the generation of taxable income to Mirae solely by reason of
payment of interest by the Company to Mirae at a rate lower than a benchmark
rate prescribed by Korean tax law or the Korean tax authorities).
4.5 INTEREST. Interest shall accrue on the outstanding
principal amount of the Loans at a rate per annum which is equal to the
Applicable Rate, and the Company shall pay accrued interest, subject to any
available offsets, to Mirae in arrears on the last business day of each calendar
quarter and on the Maturity Date. Interest shall be calculated based on a
360-day year and the actual number of days elapsed.
4.6 VOLUNTARY PREPAYMENT. Upon the unanimous affirmative vote
of its board of directors, the Company may, without premium or penalty,
voluntarily prepay all or any portion of the Loans outstanding from time to
time. Amounts prepaid may not be reborrowed.
4.7 ACCELERATION. Mirae shall have the right to accelerate
repayment of the Loans in the event (a) any voluntary or involuntary dissolution
proceeding or any voluntary or involuntary bankruptcy proceeding is commenced by
or against the Company, (b) any of this Agreement, the License Agreements or the
Shareholder Agreement is terminated for any reason, and (c) the Company is or
becomes unable to meet its financial obligations when and as due, including
without limitation the obligation of the Company to pay principal and interest
under the Loan Agreement. Except as expressly set forth in this Section 4.7,
Mirae shall not have any acceleration rights with respect to repayment of the
Loans.
4.8 CURRENCY DENOMINATION. All of the Loans shall be
denominated in Korean Won, and all advances and payments in respect of the Loans
shall be made in Korean Won.
4.9 METHOD OF PAYMENT. The Company shall pay all principal and
interest owing to Mirae under the Loan Agreement to such account as Mirae may
specify by written notice to the Company.
4.10 NO COLLATERAL OR GUARANTY. No collateral or guaranty for
any of the Loans shall be required.
5. CAPITAL CONTRIBUTIONS AND STOCKHOLDER LOANS..
5.1 CAPITAL CONTRIBUTIONS. Neither party to this Agreement
shall have any obligation to make capital contributions to the Company other
than the [***] to be contributed as capital by each of Lycos and Mirae (for a
total aggregate capital contribution of [***]) in connection with the
incorporation of the Company.
5.2 LOANS. Except as expressly provided for in Section 4,
neither party to this Agreement shall have any obligation to make loans to the
Company.
6. MANAGEMENT.
6.1 DIRECTORS. The Company shall at all times have an even
number of directors, and the initial number of directors shall be four (4).
Mirae and Lycos shall have equal representation on the board of directors of the
Company, and the parties shall cooperate in the election of directors, as more
specifically provided in the Shareholder Agreement.
6.2 REPRESENTATIVE DIRECTOR. There shall be one representative
director, who shall be a Mirae nominee.
6.3 STATUTORY AUDITOR. There shall be one statutory auditor,
who shall be a Lycos nominee.
6.4 MEETINGS OF DIRECTORS. The Company shall bear all
reasonable expenses of directors in connection with their attendance at meetings
of directors, including without limitation travel, lodging and meals.
7. BUSINESS OBJECTIVES AND BUSINESS GOALS.
7.1 BUSINESS OBJECTIVES. The business objectives of the
Company shall include, without limitation, the following:
(a) provide a World Wide Web navigation,
search, directory and community service at www.lycos.co.kr, which is generally
similar to, and of like quality with, the World Wide Web navigation, search,
directory and community service provided by Lycos at www.lycos.com, but which is
adapted culturally and in local content to be suitable for the Korean market
(the "Service");
*** A CONFIDENTIAL PORTION OF THE MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(b) generate revenue from the Service, including
without limitation revenue from the sale of advertising and electronic commerce;
(c) engage in all business activities relating
to the development, maintenance, support, enhancement and promotion of the
Service, including without limitation the development and acquisition of local
content and the development and expansion of distribution channels for the
Service; and
(d) engage in all business activities ancillary or
incidental to the foregoing.
7.2 BUSINESS GOALS. Set forth on the attached EXHIBIT D are
specific business goals for the Company for the period from the date of this
Agreement through December 31, 2001. Not less than three (3) months prior to the
end of such period and each consecutive three (3) year period thereafter, the
parties shall agree on specific business goals for the three (3) year period
immediately following the current period. Such business goals, as from time to
time in effect, are referred to as the "Business Goals."
8. START UP, OPERATION AND ADDITIONAL TECHNOLOGIES.
8.1 START UP. Initially, the Service shall be operated and
maintained at the U.S. data center of Lycos. When and as feasible, as
determined by Lycos and the Company, the operation and maintenance of the
Service shall be transferred to a site in the Republic of Korea. For so long
as the Service is operated and maintained at the U.S. data center of Lycos,
the Company shall pay to Lycos a fee of [A CONFIDENTIAL PORTION OF THE MATERIAL
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.] cents (one quarter of one cent) for each query processed at the
U.S. data center of Lycos in connection with the Service.
8.2 PERSONNEL. Mirae shall be responsible for assuring that
the Company is adequately staffed with properly skilled personnel as required to
enable the Company to meet its business objectives and the applicable Business
Goals.
8.3 OPERATION. Mirae shall be responsible for assuring that
the Service is operated on a twenty-four (24) hour a day, seven (7) day a week
basis, both before and after transfer of the Service to the Republic of Korea.
9. COOPERATION. The parties shall in good faith cooperate with each
other to enable the Company to maximize the success of the Company's business.
10. ADVERTISING AND REFERRALS.
10.1 PURCHASE OF ADVERTISING BY MIRAE. Mirae agrees to
purchase advertising from the Company at the applicable rates from time to time
offered by the Company to unrelated third parties and otherwise as more
specifically described in the attached EXHIBIT E. Payments by Mirae for such
advertising shall be subject to offset against obligations of the Company to
Mirae.
10.2 REFERRALS BY LYCOS. Lycos shall, when there is the
opportunity to do so, refer advertising and electronic commerce business to the
Company, and the Company shall pay to Lycos, as a commission, an amount equal to
fifteen percent (15%) of all gross revenues generated by the Company from such
referrals, and shall reimburse to Lycos, on demand, all costs incurred by Lycos
in connection with any such referrals. Within thirty days after the end of each
calender quarter during the term of this Agreement, the Company shall submit to
Lycos a statement setting forth the calculation of all such commissions which
are payable with respect to gross revenues attributable to such referrals and
received by the Company in such quarter, and shall concurrently make payment to
Lycos of the amount of such commissions shown in such calculation, as converted
to U.S. Dollars at the then current rate of exchange.
11. EXCLUSIVITY. For so long as this Agreement remains in effect, Mirae
shall not, directly or indirectly, alone or in combination with others,
purchase, establish, maintain, invest in or otherwise promote, or agree to
purchase, establish, maintain, invest in or otherwise promote, any navigation,
search, directory or community service (other than the Service), except that the
foregoing restriction shall not apply to passive portfolio investments in an
entity not in excess of five percent (5%) of the total equity of such entity.
For so long as this Agreement remains in effect, Lycos shall not, directly or
indirectly, alone or in combination with others, purchase, establish, maintain,
invest in or otherwise promote, or agree to purchase, establish, maintain,
invest in or otherwise promote, any navigation, search, directory or community
service (other than the Service) operated from the Republic of Korea
specifically for the local Korean market, except that the foregoing restriction
shall not apply to passive portfolio investments in an entity not in excess of
five percent (5%) of the total equity of such entity.
12. REPRESENTATIONS AND WARRANTIES OF LYCOS. Lycos hereby represents
and warrants to Mirae as follows:
12.1 ORGANIZATION, POWER AND AUTHORITY. Lycos is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, United States of America. Lycos has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement.
12.2 AUTHORIZATION AND BINDING OBLIGATIONS. Lycos has taken
all requisite corporate action to authorize and approve the execution, delivery
and performance of this Agreement by Lycos. This Agreement has been duly
executed and delivered by Lycos, and constitutes the legal, valid and binding
obligations of Lycos, enforceable against Lycos in accordance with its terms.
12.3 NO CONFLICTS. The execution, delivery and performance of
this Agreement by Lycos, and the consummation of the transactions contemplated
hereby, will not (a) violate any provision of the Certificate of Incorporation
or Bylaws of Lycos, (b) violate, conflict with or result in (or with notice or
lapse of time or both result in) a breach of or default under any term or
provision of any contract or agreement to which Lycos is a party or by which
Lycos or any of its assets or properties is or may be bound, or (c) violate any
order, judgment, injunction, award or
decree of any court or arbitration body, or any governmental, administrative or
regulatory authority, by which Lycos or any of its assets or properties is or
may be bound.
12.4 NO PENDING LITIGATION. No action, suit or proceeding
which seeks to prevent the consummation of the transactions contemplated by this
Agreement, or would impair the ability of Lycos to consummate the transactions
contemplated by this Agreement, is pending against Lycos, and no such action,
suit or proceeding has been threatened against Lycos.
13. REPRESENTATIONS AND WARRANTIES OF MIRAE. Mirae hereby represents
and warrants to Lycos as follows:
13.1 ORGANIZATION, POWER AND AUTHORITY. Mirae is a CHUSIK
HOESA duly organized and validly existing under the laws of the Republic of
Korea. Mirae has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement.
13.2 AUTHORIZATION AND BINDING OBLIGATIONS. Mirae has taken
all requisite corporate action to authorize and approve the execution, delivery
and performance of this Agreement by Mirae. This Agreement has been duly
executed and delivered by Mirae, and constitutes the legal, valid and binding
obligations of Mirae, enforceable against Mirae in accordance with its terms.
13.3 NO CONFLICTS. The execution, delivery and performance of
this Agreement by Mirae, and the consummation of the transactions contemplated
hereby, will not (a) violate any provision of the charter documents of Mirae,
(b) violate, conflict with or result in (or with notice or lapse of time or both
result in) a breach of or default under any term or provision of any contract or
agreement to which Mirae is a party or by which Mirae or any of its assets or
properties is or may be bound, or (c) violate any order, judgment, injunction,
award or decree of any court or arbitration body, or any governmental,
administrative or regulatory authority, by which Mirae or any of its assets or
properties is or may be bound.
13.4 NO PENDING LITIGATION. No action, suit or proceeding
which seeks to prevent the consummation of the transactions contemplated by this
Agreement, or would impair the ability of Mirae to consummate the transactions
contemplated by this Agreement, is pending against Mirae, and no such action,
suit or proceeding has been threatened against Mirae.
14. CONFIDENTIALITY. For so long as this Agreement remains in effect
and for a period of three (3) years after any termination of this Agreement,
each party shall keep strictly confidential, and shall not disclose, use,
divulge, publish or otherwise reveal, directly or through any third party
(including without limitation the Company), any confidential or proprietary
information of the other party which was disclosed by or received pursuant to
this Agreement, or in connection with the preparation and negotiation of this
Agreement, or by reason of the performance by the parties of their obligations
hereunder or their involvement in activities of the Company, including, but not
limited to, documents and/or information regarding customers, costs, profits,
markets, sales, products, product development, key personnel, pricing policies,
operational methods, technology, know-how, technical processes, formulae or
plans for future development (collectively, "Confidential Information"), except
as may be necessary in connection with filings with governmental agencies as
required under applicable law, including, in the case of Lycos, the rules and
regulations promulgated under the Securities Exchange Act of 1934, provided,
however, that neither party shall make any disclosure required under applicable
law before providing the other party with a reasonable opportunity to seek a
protective order. Upon termination of this Agreement, each party shall either
destroy or return to the other all memoranda, notes, records, reports and other
documents (including all copies thereof) relating to the Confidential
Information of the other party which such party may then possess or have under
its control. Notwithstanding the foregoing, Confidential Information of a party
shall not include (a) information which was already known to the recipient at
the time of its receipt, (b) information which is or becomes freely and
generally available to the public through no wrongful act of the recipient, (c)
information which is rightfully received by the recipient from a third party
legally entitled to disclose such information free of confidentiality
restrictions, or (d) information disclosed in connection with legal action
initiated by a party to enforce rights under this Agreement, or any agreement
executed pursuant to this Agreement, PROVIDED that adequate safeguards (such as
protective orders) are maintained.
15. FAILURE TO MEET BUSINESS GOALS. If the Company fails to meet the
applicable Business Goals for the period commencing from the date of this
Agreement and ending on December 31, 2001 or for any consecutive three (3) year
period thereafter, then, within sixty (60) days after the end of such period,
either party shall have the right, at its option and in addition to any other
rights and remedies it may have, to:
(a) elect to dissolve the Company by giving
written notice thereof to the other party, in which case the parties shall
cooperate to take all such steps as may be necessary to dissolve the Company;
and/or
(b) elect to terminate this Agreement by giving
written notice thereof to the other party and the Company, in which case this
Agreement, the License Agreements, the Shareholder Agreement and the funding
commitment under the Loan Agreement shall automatically terminate
notwithstanding any provision to the contrary in this Agreement, the License
Agreements, the Shareholder Agreement or the Loan Agreement.
16. DEADLOCK.
16.1 MAJOR MATTERS. As used in Section 16.2, "Major
Matters" shall mean:
(a) liquidation, winding-up, dissolution or
commencement of any bankruptcy or other similar proceeding;
(b) merger, consolidation, reorganization,
recapitalization, and the like;
(c) sale of all or substantially all of the
assets of the Company, or the sale of any assets individually or in the
aggregate exceeding in amount;
(d) issuance, redemption, repurchase or
retirement of any securities (including any option, warrant or right to acquire
any securities or any instrument convertible into securities);
(e) increase or decrease of authorized capital;
or
(f) approval of annual business plan (including
annual budget and marketing plans, distribution plans and pricing policies), and
any major modifications to or departures from the approved annual business plan.
16.2 DEADLOCK. In the event (a) the board of directors of the
Company deadlocks on any Major Matters, or (b) the board of directors of the
Company cannot, by majority or unanimous vote, agree on the management of the
affairs of the Company, such that the business of the Company can no longer be
conducted to advantage, then either party shall have the right, at its option
and in addition to any other rights and remedies it may have, to:
(i) elect to dissolve the Company by giving
written notice thereof to the other party, in which case the parties shall
cooperate to take all such steps as may be necessary to dissolve the Company;
and/or
(ii) elect to terminate this Agreement by giving
written notice thereof to the other party and the Company, in which case this
Agreement, the License Agreements, the Shareholder Agreement and the funding
commitment under the Loan Agreement shall automatically terminate
notwithstanding any provision to the contrary in this Agreement, the License
Agreements, the Shareholder Agreement or the Loan Agreement.
17. MATERIAL DEFAULTS. In the event that (a) Lycos materially breaches
or defaults in the performance of its obligations under this Agreement, the
License Agreements or the Shareholder Agreement, or (b) Mirae materially
breaches or defaults in the performance of its obligations under this Agreement,
the Shareholder Agreement or the Loan Agreement, and any such breach or default
is not cured within ninety (90) days after written notice of such default is
given to the breaching party by the other party, then such other party shall
have the right, at its option and without prejudice to any other rights and
remedies it may have, to:
(i) elect to dissolve the Company by giving
written notice thereof to the breaching party, in which case the breaching party
agrees to cooperate with the other party to take all such steps as may be
necessary to dissolve the Company, it being agreed between Mirae and Lycos that
such other party shall have the right to vote the shares of the breaching party
in favor of dissolution if the breaching party fails to take action as required
under this paragraph (a); and/or
(ii) elect to terminate this Agreement by written
notice thereof to the breaching party and the Company, in which case this
Agreement, the License Agreements, the Shareholder Agreement and the funding
commitment under the Loan Agreement shall automatically terminate
notwithstanding any provision to the contrary in this Agreement, the License
Agreements, the Shareholder Agreement or the Loan Agreement.
18. ACCUMULATED LOSSES. If the accumulated losses appearing on the
balance sheet of the Company as of the end of any financial year exceeds the
amount of the paid up capital of the Company, either of the parties may, by
written notice given within thirty (30) days after receipt of such balance
sheet, require the parties to meet at a location agreeable to both parties to
discuss the appropriate steps to be taken with respect to the financial
situation of the Company. Such meeting of the parties shall be held within
thirty (30) days after any such notice is given. If the parties cannot reach
agreement within thirty (30) days after the date of such meeting on the
appropriate steps to be taken, either party may thereafter propose, by written
notice given to the other party, that the Company dissolve and, concurrently
with giving such notice, shall offer to sell its stock in the Company to the
other party at a price determined on the basis of the net worth of the Company.
If the other party does not agree within thirty (30) days after the giving of
such notice to purchase all of such stock at such price and assume all of the
obligations (if any) of the offering party to provide financial assistance to
the Company, then the parties shall take such steps as may be necessary to
dissolve the Company.
19. MISCELLANEOUS.
19.1 BROKERS. Each party shall hold the other party harmless
from any claims, liabilities or damages relating to any commissions or fees
claimed by any broker or finder by reason of any engagement or relationship of
such broker or finder by or with such party.
19.2 NOTICES. Any notice, request, demand, approval or consent
required or permitted under this Agreement shall be in writing and shall be
effective upon actual receipt when delivered by (a) registered mail, postage
prepaid, return receipt requested, (b) personal
delivery, (c) an overnight courier of recognized reputation (such as DHL or
Federal Express), or (d) transmission by facsimile (with confirmation by mail),
in each case addressed as follows:
If to Lycos: Lycos, Inc.
400-2 Totten Pond Road
Waltham, MA 02154
Attention: General Counsel
Telephone: (781) 370-2700
Facsimile: (781) 370-2600
With a copy to: Coudert Brothers
1055 West 7th Street, 20th Floor
Los Angeles, CA 90017
Attention: Richard G. Wallace
Telephone: (213) 688-9088
Facsimile: (213) 689-4467
If to Mirae: Mirae Corporation
#1309, Korea Stock Exchange, Annex Bldg.,
33, Yoidodong, Youngdungpo-gu
Seoul, Korea 150-010
Attention: Kyung Dal Cho
Telephone: 82-2-783-0059
Facsimile: 82-2-783-0057
Either party may change its address or facsimile number for notice purposes by
notice given to the other party in accordance with this Section 19.2.
19.3 ASSIGNMENT. Neither party's rights, duties or
responsibilities under this Agreement may be assigned, delegated or otherwise
transferred in any manner, without the prior written consent of the other party.
Notwithstanding the foregoing, no such consent shall be required in connection
with the assignment, delegation or other transfer of any such rights, duties or
responsibilities (a) by a party to any affiliate which directly or indirectly
controls, is controlled by or is under common control with such party, where
such control is by more than fifty percent (50%) of the relevant voting power,
or (b) in connection with any transaction, regardless of its form, in which all
or substantially all of the assets of Lycos are acquired.
19.4 ENTIRE AGREEMENT. This Agreement, including the exhibits
referred to herein, which are hereby incorporated in and made a part of this
Agreement, constitutes the entire contract between the parties with respect to
the subject matter covered by this Agreement. This Agreement supersedes all
previous letters of intent, agreements and understandings, if any, by
and between the parties with respect to the subject matter covered by this
Agreement. This Agreement may not be amended, changed or modified except by a
writing duly executed by the parties hereto.
19.5 SEVERABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable, invalid or void in any
respect, no other provision of this Agreement shall be affected thereby, all
other provisions of this Agreement shall nevertheless be carried into effect and
the parties shall amend this Agreement to modify the unenforceable, invalid or
void provision to give effect to the intentions of the parties to the extent
possible in a manner which is valid and enforceable.
19.6 REMEDIES AND WAIVERS. All rights and remedies of the
parties are separate and cumulative, and no one of them, whether exercised or
not, shall be deemed to be to the exclusion of or to limit or prejudice any
other rights or remedies which the parties may have. The parties shall not be
deemed to waive any of their rights or remedies under this Agreement, unless
such waiver is in writing and signed by the party to be bound. No delay or
omission on the part of either party in exercising any right or remedy shall
operate as a waiver of such right or remedy or any other right or remedy. A
waiver on any one occasion shall not be construed as a bar to or waiver of any
right or remedy on any future occasion.
19.7 ARBITRATION. In the event any dispute arises between the
parties with respect to any matter arising out of or relating to this Agreement
which cannot be amicably resolved, such dispute shall be submitted to the
International Chamber of Commerce for binding arbitration in accordance with the
commercial arbitration rules of the International Chamber of Commerce as then in
effect. The arbitration shall be conducted in the English language, and shall be
held in London, England. Any arbitration award rendered in any such arbitration
proceeding may be entered in and enforced by any court of competent
jurisdiction. Nothing contained in this Section 19.7 shall prevent or be
construed to prevent either party from seeking a temporary restraining order or
a preliminary or permanent injunction or any other form of interim, provisional
or equitable relief in any court of competent jurisdiction.
19.8 GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement
shall be governed by, and interpreted in accordance with, the laws (other than
that body of law relating to conflicts of law) of the Republic of Korea;
provided, however, that either party shall have the right to enforce the
provisions of Sections 11 and 14 under the laws (other than that body of law
relating to conflicts of law) of Massachusetts, United States of America. Mirae
hereby consents to the non-exclusive jurisdiction of the federal and state
courts located in Massachusetts, United States of America, and waives all
objections to the laying of venue in Massachusetts, including without limitation
any objection based on inconvenient forum. Mirae further consents to the service
of process by mail or by any other means permitted by Massachusetts law.
19.9 ATTORNEYS' FEES. In the event any action or proceeding is
initiated for any breach of or default in any of the terms or conditions of this
Agreement, then the party or parties in whose favor judgment shall be entered or
an arbitration award shall be made, shall be entitled to have and recover from
the other parties all costs and expenses (including attorneys' fees) incurred in
such action or proceeding and any appeal therefrom.
19.10 HEADINGS. The headings contained in this Agreement are
for convenience only and are not a part of this Agreement, and do not in any way
interpret, limit or amplify the scope, extent or intent of this Agreement, or
any of the provisions of this Agreement.
19.11 COUNTERPARTS AND FACSIMILE. This Agreement may be
executed in counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same agreement. Transmission of
facsimile copies of signed original signature pages of this Agreement shall have
the same effect as delivery of the signed originals.
19.12 TRANSLATION. For the convenience of the parties, one or
more Korean translations of this Agreement may be prepared. Notwithstanding the
preparation or existence of any such Korean translations, the English language
version of this Agreement shall be controlling.
19.13 PRESS RELEASES. Neither party shall issue any press
releases or publicity statements relating to this Agreement, the transactions
contemplated by this Agreement or the business of the Company without the prior
written approval of the other party, which approval shall not be unreasonably
withheld or delayed, except that each party shall be permitted to issue any
press releases or publicity statements (whether or not approved by the other
party) to the extent required by any securities laws or regulations applicable
to such party.
19.14 THIRD PARTY BENEFICIARY. The Company is a third party
beneficiary under this Agreement. Except as to the Company, this Agreement is
not intended to and does not confer any rights on any third party, and no such
third party shall be a third party beneficiary under or in respect of this
Agreement.
19.15 BINDING EFFECT. Subject to Section 19.3, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
LYCOS, INC.,
a corporation organized under the laws of
Delaware, USA
/s/ Edward M. Philip
----------------------------
By: Edward M. Philip
Its: Chief Operating Officer
MIRAE CORPORATION,
a CHUSIK HOESA organized under the laws of the
Republic of Korea
/s/ Moon Soul Chung
----------------------------
By: Moon Soul Chung
Its: President and CEO
EXHIBIT 10.28
EXHIBIT A
ARTICLES OF INCORPORATION
OF
LYCOS KOREA, INC.
CHAPTER I
GENERAL PROVISIONS
Article 1. CORPORATE NAME
The name of the Company shall be "LYCOS KOREA CHUSIK HOESA" in
Korean and "LYCOS KOREA, INC." in English.
Article 2. BUSINESS OBJECTIVES
The business objectives of the Company shall be the following:
(a) to provide a World Wide Web navigation, search,
directory and community service at "www.lycos.co.kr"
which is adapted culturally and in local content to
be suitable for the Korean market ("Service");
(b) to generate revenue from the Service, including
without limitation revenue from the sale of
advertising and electronic commerce;
(c) to engage in all business activities relating to the
development, maintenance, support, enhancement and
promotion of the Service, including without
limitation the development and acquisition of local
content and the development and expansion of
distribution channels for the Service; and
(d) to engage in all business activities ancillary or
incidental to the foregoing.
Article 3. HEAD OFFICE, BRANCHES, ETC.
3.1 The head office of the Company shall be located at
_________________, Seoul, Korea.
3.2 Branches, other business offices or other agencies
may be established, relocated or closed, as required
by resolution of the Board of Directors.
Article 4. METHOD OF PUBLIC NOTICES
Public notices of the Company shall be given in
________________ newspaper, a daily newspaper of general
circulation published in Seoul, Korea.
CHAPTER II
CAPITAL AND SHARES
Article 5. SHARES
5.1 The total number of shares that the Company is
authorized to issue shall be Twenty Thousand (20,000)
shares, each having a par value of Five Thousand Won
((W)5,000).
5.2 The total number of shares to be issued by the
Company at the time of incorporation shall be Twenty
Thousand (20,000) shares.
5.2 All shares to be issued by the Company shall be one
class of common stock, in non-bearer form, having a
par value as stated hereinabove, with full voting
rights.
Article 6. SHARE CERTIFICATES
6.1 The share certificates shall be issued in
denominations of one (1), ten (10), fifty (50), one
hundred (100), five hundred (500), one thousand
(1,000), and ten thousand (10,000) shares or such
other denominations as the shareholders may
reasonably request.
6.2 The share certificates shall bear the following
words:
"Transfer of the shares of stock represented
by this certificate is subject to the Joint
Venture Agreement dated _______, 1999
between Lycos, Inc. and Mirae Corporation,
and to the Shareholder Agreement dated
_______, 1999 between Lycos, Inc. and Mirae
Corporation, copies of which are on file at
the principal office of the Company in
Seoul, Korea."
Article 7. PAYMENT FOR SHARES
Unless otherwise decided by the Board of Directors of the
Company, payment for subscribed shares shall be made in cash,
payable to a bank or banks designated by the Company. Only
those shares that have been fully paid for may be issued.
Article 8. REGISTER OF SHAREHOLDERS
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8.1 The Company shall maintain a Register of Shareholders
in compliance with the relevant provisions of Korean
law.
8.2 A shareholder desiring an alteration of any entry in
the Register of Shareholders due to the transfer of
shares or otherwise, or the registration of a pledge
shall submit an application therefor to the Company,
in the form prescribed by the Company, together with
its share certificates involved and supporting
documents as requested by the Company.
Article 9. TRANSFER OF SHARES
9.1 Any transfer of shares in the Company to a
non-shareholder must be approved by the Board of
Directors and shall be subject to the Right of First
Refusal stipulated in the Shareholders Agreement.
9.2 The Company may appoint its transfer agent and
entrust it with procedures of change of entry in the
Register of Shareholders of the Company.
Article 10. REPORT OF ADDRESSES AND SEALS
10.1 Shareholders shall report to the Company their names,
addresses, seals and any changes therein; provided,
however, that foreigners who customarily use
signatures may use signatures in place of seals.
10.2 Shareholders who reside in foreign countries may, in
addition, inform the Company of their or their
agent's provisional address in Korea to which notices
may be dispatched.
Article 11. RECORD DATE AND CLOSING OF REGISTER OF SHAREHOLDERS
11.1 Subject to the restrictions provided in the
applicable law, in order to determine persons who are
entitled to exercise voting rights, pre-emptive
rights to newly issued shares or other rights as
shareholders or pledgees, the Company may suspend
entry of alterations in the Register of Shareholders
for a certain period, or the Company may deem any
shareholder or pledgee whose name appears in the
Register of Shareholders on a specified date to the
shareholder or pledgee who is entitled to exercise
the rights enumerated above in connection with such
shares.
11.2 The Company shall give public notice of the period or
date referred to in paragraph 11.1 at least two weeks
in advance of the commencement of such period or the
occurrence of such date.
Article 12. RE-ISSUANCE OF SHARE CERTIFICATES
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12.1 A shareholder desiring re-issuance of a share
certificate for reason of partition or amalgamation
of shares, or damage or soiling to a share
certificate, shall submit an application therefor to
the Company, in the form prescribed by the Company,
together with the share certificate to be canceled.
When the damage or soiling is so extreme that the
share certificate is not legible, however, it shall
be regarded as lost and the following provision shall
apply for its replacement.
12.2 A shareholder desiring issuance of a new share
certificate due to loss of his share certificate
shall submit to the Company an application, in the
form prescribed by the Company, together with the
original or the certified copy of a judgment of
nullification with respect to the lost share
certificate.
Article 13. PREEMPTIVE RIGHTS
Each shareholder shall have preemptive rights to acquire any
additional shares which the Company may issue subsequent to
incorporation. Such preemptive rights shall be in such
proportion equivalent to the holdings of the issued and
outstanding shares of each shareholder at the time of issuance
of such additional shares. In the event that a shareholder
decides not to exercise its preemptive right to subscribe to
all or any portion of its proportionate amount of such
additional shares, such shares shall first be offered, in
equal proportion, to the other shareholders. The disposition
of the shares not purchased by the shareholders after
completing the above procedure shall be determined by the
Board of Directors of the Company.
CHAPTER III
GENERAL MEETINGS OF SHAREHOLDERS
Article 14. TYPES OF GENERAL MEETINGS
14.1 General Meetings of the Shareholders of the Company
shall be of two types: ordinary and extraordinary.
14.2 The Ordinary General Meeting of the Shareholders
shall be held within three (3) months following the
last day of each fiscal year.
14.3 An Extraordinary General Meeting of the Shareholders
may be convened at any time in compliance with a
resolution of the Board of Directors and applicable
laws.
Article 15. CONVENING OF GENERAL MEETINGS
15.1 All General Meetings of Shareholders shall be
convened by the Representative Director upon the
resolution of the Board of Directors. The place for
convening each General Meeting of Shareholders shall
be the head office of the Company unless otherwise
decided by the Board of Directors.
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15.2 Each General Meeting of Shareholders shall be called
by the Board of Directors giving fourteen (14) days
prior notice, stating in the English language the
date, time, place and agenda of the meeting and
dispatched via registered mail to the shareholders
who are residents of Korea and via registered
airmail, facsimile transmission or telex to all other
shareholders. The notice requirement may be waived by
the unanimous written consent of all shareholders at
the meeting. The General Meeting of Shareholders may
not resolve matters other than those stated in the
notice of the meeting, unless all the shareholders
entitled to vote, whether present or not, unanimously
agree otherwise.
Article 16. PRESIDING OFFICER
The Representative Director shall preside at all General
Meetings of Shareholders. If the Representative Director is
absent or fails to serve as presiding officer at a General
Meeting of Shareholders, the Director designated by the Board
of Directors shall preside at such meeting in his place.
Article 17. QUORUM REQUIREMENT
Except as otherwise provided by applicable mandatory
requirements of Korean law or by these Articles of
Incorporation, the quorum at all General Meetings of
Shareholders shall be the presence of shareholders
representing more than fifty percent (50%) of the total number
of shares issued and outstanding entitled to vote thereon.
Article 18. ADOPTION OF RESOLUTION
All resolutions of each General Meeting of Shareholders shall
be adopted by the affirmative vote of the shareholders who
hold shares representing more than fifty percent (50%) of the
shares of the Company present at the meeting; provided,
however, that the following matters shall require the vote of
at least two-thirds (2/3), or higher rate if required by
applicable law, of the total shares issued and outstanding:
(a) any change to the Articles of Incorporation or
by-laws of the Company;
(b) a reduction of the paid-in capital of the Company and
the manner thereof;
(c) the liquidation of the Company or its merger into, or
consolidation or amalgamation with any other company;
(d) transfer or pledge of the whole or a substantial part
of the assets or undertakings of the Company or the
acquisition by the Company of the whole or part of
the undertaking of any other person or entity, or the
capital stock of the Company, or entry by the Company
into any joint venture or partnership;
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(e) major matters prescribed in the Shareholders
Agreement; or
(f) any other matters, the adoption of which requires a
special resolution of the shareholders at a General
Meeting under the laws of Korea.
Article 19. VOTING
19.1 Each shareholder shall have one (1) vote for each
share registered in its name.
19.2 A shareholder may exercise its vote by proxy. In that
case, the proxy holder must file with the Company a
document evidencing his proper authority at each
General Meeting of Shareholders at which he acts as
proxy.
Article 20. MINUTES OF GENERAL MEETING
The proceedings and conclusions of each General Meeting of
Shareholders shall be recorded in minutes in the English and
Korean languages, which minutes shall bear the names and the
signatures and/or seals of the presiding officer and of the
Directors present at the meeting, and shall be preserved at
the Company's head office.
CHAPTER IV
DIRECTORS, STATUTORY AUDITOR AND OTHER OFFICERS
Article 21. NUMBER OF DIRECTORS AND AUDITOR
The Company shall have at least four (4) Directors and at
least one (1) Statutory Auditor.
Article 22. ELECTION
The Directors and Statutory Auditor shall be elected at and by
the General Meeting of Shareholders and any such vacancies may
be filled at a General Meeting of Shareholders.
Article 23. TERM OF OFFICE
23.1 The term of office of a Director shall be three (3)
years; provided, however, that the term of office
shall be extended until the close of the Ordinary
General Meeting of Shareholders convened in respect
of the last fiscal year which ended in their term of
office.
23.2 The term of office of a Statutory Auditor shall
commence from the date of acceptance of office and
expire at the close of the Ordinary General Meeting
of Shareholders convened with respect to the last
fiscal year within three (3) years from the date of
acceptance of office.
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23.3 The term of office of a Director or Statutory Auditor
elected to fill a vacancy shall be the remainder of
the term of office of his predecessor.
Article 24. REPRESENTATIVE DIRECTOR AND OTHER OFFICERS
24.1 The Board of Directors shall elect from among its
members one (1) Representative Director, who shall
serve as the President of the Company.
24.2 The Representative Director shall represent the
Company and shall manage the day-to-day business of
the Company under the control and supervision of the
Board of Directors. The Representative Director shall
have the authority to execute contracts on behalf of
the Company within the limitations established by the
Board of Directors.
24.3 Other officers of the Company, including but not
limited to Vice President, Secretary, Treasurer or
Finance Director, and Senior Manager shall be
appointed by the Board of Directors. All such
officers' duties with the Company shall be determined
by the Board of Directors.
Article 25. COMPENSATION
25.1 The compensation of the Directors and Statutory
Auditor of the Company shall be determined by
resolution of a General Meeting of Shareholders.
25.2 Severance allowances for the Directors and Statutory
Auditor shall be paid in accordance with the
regulations of the Company adopted by resolutions of
a General Meeting of Shareholders.
CHAPTER V
BOARD OF DIRECTORS
Article 26. MEETINGS OF BOARD OF DIRECTORS
26.1 An ordinary meeting of the Board of Directors shall
be held immediately following the Ordinary General
Meeting of Shareholders each fiscal year. Each Board
meeting shall be called by the Representative
Director giving at least seven (7) days written
notice, stating the date, time and place of the
meeting, to each Director and Statutory Auditor and
stating the agenda of the meeting. The notice
requirement may be waived with the written consent of
all Directors and Statutory Auditor.
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26.2 If any one Director requests to convene an
extraordinary meeting in writing, the Representative
Director shall call an extraordinary meeting of the
Board of Directors in accordance with the procedures
stipulated in foregoing paragraph 26.1.
26.3 Board meetings shall be held at the Company's head
office, unless the Board of Directors determines
otherwise.
Article 27. PRESIDING OFFICER OF MEETING
The Representative Director shall preside at all meetings of
the Board of Directors. If the Representative Director is
absent or fails to serve as presiding officer of any meeting,
the Director designated by the Board of Directors shall
preside at such meeting in his place.
Article 28. ADOPTION OF RESOLUTIONS
A quorum at any Board meeting shall consist of at least a
majority of the Directors then in office. Unless otherwise
required by applicable laws or the Articles of Incorporation,
any actions and resolutions taken at a Board meeting shall be
adopted by the affirmative vote of at least a majority of the
Directors then in office; provided, however, that the
following matters shall require the vote of all of the
Directors then in office:
(a) amendment or repeal of the Articles of Incorporation;
(b) liquidation, winding-up, dissolution or commencement
of any bankruptcy or other similar proceeding;
(c) merger, consolidation, reorganization,
recapitalization, and the like;
(d) sale of all or substantially all of the assets of the
Company, or the sale of any assets individually or in
the aggregate exceeding (W)75,000,000 in amount;
(e) issuance, redemption, repurchase or retirement of any
securities (including any option, warrant or right to
acquire any securities or any instrument convertible
into securities);
(f) increase or decrease of authorized capital;
(g) approval of annual financial statements;
(h) approval of annual business plan (including annual
budget and marketing plans, distribution plans and
pricing policies), and any major modifications to or
departures from the approved annual business plan;
(i) declaration of dividends;
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(j) acquisition or disposition of an interest in any
other corporation or entity, including the
incorporation of a subsidiary;
(k) guaranty of third party indebtedness;
(l) the borrowing of any funds, except as otherwise
expressly permitted by an written agreement between
the shareholders of the Company and except for any
funds borrowed in the ordinary course of business and
individually or in the aggregate not exceeding
(W)75,000,000;
(m) the sale, transfer (other than by sublicense as
expressly permitted under any relevant license
agreement between the Company and of its
shareholders), or encumbrance of any interest in
intellectual property rights;
(n) any changes or modifications by the Company of or to
any of the technology licensed to the Company by any
of its shareholders, except as expressly permitted by
and made in accordance with the terms of any relevant
license agreement by which such technology is
licensed to the Company;
(o) any material transaction between the Company and any
of its shareholders (other than as expressly
contemplated by the Joint Venture Agreement pursuant
to which the Company was formed, or any agreement
executed pursuant to the Joint Venture Agreement);
(p) any material transaction by which the Company incurs
or undertakes any financial obligation in excess of
(W)75,000,000; or
(q) removal of the President, any Vice President, any
Treasurer or Finance Director, or any Senior Manager.
Article 29. MINUTES OF MEETINGS OF THE BOARD OF DIRECTORS
The proceedings and conclusions of each meeting of the Board
of Directors and each shall be recorded in minutes in the
English and Korean languages, which minutes shall bear the
names and signatures and/or seals of the presiding officer and
all other Directors and Statutory Auditor in attendance at the
meeting and shall be preserved at the Company's head office.
Article 30. MINUTES OF MEETINGS OF SHAREHOLDERS
The proceedings and conclusions of each meeting of
shareholders shall be recorded in minutes in the English and
Korean languages.
CHAPTER VI
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ACCOUNTING
Article 31. FISCAL YEAR
31.1 The fiscal year of the Company shall commence on the
1st day of August and end on the 31st day of July of
each year.
31.2 Notwithstanding the foregoing paragraph 31.1, the
first fiscal year of the Company shall commence on
the date of incorporation of the Company and end on
the following 31st day of July.
Article 32. APPROVAL OF FINANCIAL STATEMENTS, ETC.
32.1 The Representative Director shall submit to the
Statutory Auditor at least six (6) weeks before each
Ordinary General Meeting of Shareholders the
following documents, after obtaining approval of such
documents from the Board of Directors:
(a) a balance sheet;
(b) a profit and loss statement;
(c) a statement of disposition of retained
earnings or deficit;
(d) supplementary schedules for (a), (b) and (c)
above; and
(e) a business report.
32.2 The Statutory Auditor shall submit an audit report
thereof to the Representative Director within four
(4) weeks of receipt of the documents described in
paragraph 32.1 above.
31.3 The Representative Director shall, without delay,
give public notice of the balance sheet approved by
the Ordinary General Meeting of Shareholders.
Article 33. DISPOSITION OF PROFITS
Subject to Korean laws and regulations, profit for each fiscal
year shall be disposed of in the following order of priority:
(a) establishment of any reserves required by law;
(b) establishment of such other reserves as may be
decided by a General Meeting of Shareholders; and
(c) payment of all or a portion of the remainder of such
profit as dividends to shareholders in accordance
with the resolution of a General Meeting of
Shareholders.
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Article 34. PAYMENT OF DIVIDENDS
34.1 Dividends, if declared, shall be determined by the
General Meeting of Shareholders, and paid to the
shareholders of the Company who were duly entered
into the Register of Shareholders as of the end of
the subject fiscal year.
34.2 Dividends shall be paid within thirty (30) days after
the declaration of dividends, unless otherwise
resolved by a General Meeting of Shareholders.
CHAPTER VII
SUPPLEMENTARY PROVISIONS
Article 35. BY-LAWS
The Company may adopt, with the approval of the Board of
Directors, by-laws and other regulations as may be required
for the administration of the affairs of the Company.
Article 36. OTHER MATTERS
Matters not specifically provided for herein shall be
determined in conformity with resolutions adopted at the
meeting of the Board of Directors or the General Meeting of
Shareholders of the Company, or with relevant provisions of
the Korean Commercial Code, as the case may be.
Article 37. INCORPORATING COSTS
The Company shall bear the incorporating cost as set forth in
the attachment.
Article 38. PROMOTERS
We, the undersigned Promoters of the Company, having made the
above Articles of Incorporation for the establishment of the
Company have hereunder set out our hands and affixed our seals
this ____ day of __________, 1999.
1. Name:
-------------------------------------
Address:
----------------------------------
----------------------------------
Number
of Shares:
--------------------------------
2. Name:
-------------------------------------
Address:
----------------------------------
----------------------------------
Number
of Shares:
--------------------------------
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3. Name:
-------------------------------------
Address:
----------------------------------
----------------------------------
Number
of Shares:
--------------------------------
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Attachment: DETAILS OF INCORPORATING COSTS
ITEMS AMOUNT (KOREAN WON)
Preparation of Articles of Incorporation _____________
Cost of Inaugural Shareholders _____________
Meeting _____________
Appraisal Costs _____________
Cost of Naming the Company _____________
Legal Consultation _____________
Cost for Solicitation of Shareholders _____________
Total: _____________
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Exhibit 10.28
EXHIBIT B-1
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is made and entered into as
of _____________, 1999 by and between LYCOS, INC., a corporation organized under
the laws of the State of Delaware, United States of America ("Lycos"), and LYCOS
KOREA, INC., a CHUSIK HOESA organized under the laws of the Republic of Korea
("Licensee").
RECITALS
A. Lycos owns or licenses from third parties certain rights relating to
the Lycos Searchservice (as defined below).
B. Licensee desires to offer a local version of the Lycos
Searchservice, in the Korean language and as otherwise customized for the Korean
market.
C. On the terms and subject to the conditions hereafter set forth,
Licensee desires to obtain from Lycos, and Lycos is willing to grant to
Licensee, the rights and licenses described below.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and for other valuable consideration received, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the meanings set forth below:
"Affiliate" shall mean, as to any Person, any other Person that,
directly or indirectly, controls, is under common control with, or is controlled
by, such Person, where such control is by the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Derivative Works" shall mean all Enhancements which are
"derivative works" and "compilations" as such terms are defined in the U.S.
Copyright Act (17 U.S.C. Section 101 et seq.).
"Directory Software" shall mean all computer software owned
exclusively or licensed (without obligation to pay royalties and with right to
sublicense) by Lycos, used by Lycos in connection with the Lycos Searchservice,
and performing the functionality described in the attached EXHIBIT A.
"Enhancements" shall mean all enhancements, improvements,
additions or modifications to the Local Catalog, the Lycos Catalog, the Licensed
Software, the Licensed Technology or the Local Searchservice, of whatever type
or nature, whether created or developed
solely by Lycos or its Affiliates, agents, consultants or independent
contractors, solely by Licensee or its Affiliates, agents, consultants or
independent contractors, or jointly by Lycos or its Affiliates, agents,
consultants or independent contractors, on one hand, and Licensee or its
Affiliates, agents, consultants or independent contractors, on the other hand.
"Effective Date" shall mean the date of this Agreement as set
forth in the preamble hereof.
"Internet" shall mean the various computer networks commonly and
collectively referred to as the "internet," as the same may exist from time to
time.
"Initial Availability Period" shall mean the thirty (30) day
period commencing from the date Lycos makes the Local Catalog and the Licensed
Software initially available to Licensee under Section 6.1, or such shorter
period as may be agreed to between Lycos and Licensee.
"Joint Enhancements" shall mean any Enhancements which are not
Derivative Works and which are created or developed jointly by Lycos or its
Affiliates, agents, consultants or independent contractors, on one hand, and
Licensee or its Affiliates, agents, consultants or independent contractors, on
the other hand.
"Licensed Marks" shall mean all trademarks and service marks owned
or licensed (without obligation to pay royalties and with right to sublicense)
by Lycos as of the date of this Agreement and used by Lycos in connection with
the Lycos Searchservice, which trademarks and service marks are listed in the
attached EXHIBIT B.
"Licensed Property" shall mean all patents and patent rights
listed in the attached EXHIBIT B and all rights in copyright now or hereafter
owned exclusively or licensed (without obligation to pay royalties and with
right to sublicense) by Lycos and pertaining to the Local Catalog, the Lycos
Catalog, the Licensed Software, the Licensed Technology, the Local Searchservice
or the Lycos Enhancements, EXCLUDING, HOWEVER, any of the foregoing relating to
web-crawler or spider technology used to index and catalog web sites on the
Internet.
"Licensed Software" shall mean the Lycos Software and the
Directory Software, as enabled to handle double-byte characters, and all
relevant application programming interfaces, as the Lycos Software, the
Directory Software and the relevant application programming interfaces are
modified or supplemented to support the Local Searchservice, and as thereafter
modified, supplemented, replaced or updated from time to time.
"Licensed Technology" shall mean all inventions, ideas, knowhow,
expertise, trade secrets and proprietary information now or hereafter owned
exclusively or licensed (without obligation to pay royalties and with right to
sublicense) by Lycos and used by Lycos in connection with the Licensed Marks,
the Licensed Property and the Licensed Software, EXCLUDING, HOWEVER,
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any of the foregoing relating to web-crawler or spider technology used to index
and catalog web sites on the Internet.
"Licensee Enhancements" shall mean shall mean any Enhancements
which (a) are not Derivative Works, and (b) are created or developed solely by
Licensee or its Affiliates, agents, consultants or independent contractors
(other than Lycos) without breaching any provision of this Agreement.
"Local Catalog" shall mean a local version of the Lycos Catalog,
consisting solely of URLs ending with the designation "co.kr" and such other
Korean content as may be accessed through the World Wide Web, as such database
is modified, supplemented, replaced or updated from time to time.
"Local Searchservice" shall mean a local version of the Lycos
Searchservice, as customized for the Territory and in the principal language of
the Territory.
"Local Site" shall mean www.lycos.co.kr, the Internet site through
which the Local Searchservice is to be made available to users, as provided for
in Section 3.
"Lycos Catalog" shall mean the database compiled by Lycos and
accessed through the search engine providing the search function of the Lycos
Searchservice, as such database is modified, supplemented, replaced or updated
from time to time.
"Lycos Enhancements" shall mean any Enhancements which are (a)
Derivative Works, or (b) created or developed solely by Lycos or its Affiliates,
agents, consultants or independent contractors.
"Lycos Searchservice" shall mean the search service offered by
Lycos on the Internet at www.lycos.com, through an advertiser supported search
engine used to access the Lycos Catalog, which provides to the user information
regarding Internet sites relevant to the user's search request.
"Lycos Software" shall mean all computer software owned
exclusively or licensed (without obligation to pay royalties and with right to
sublicense) by Lycos, used by Lycos to operate and maintain the Lycos
Searchservice, and performing the functionality described in the attached
EXHIBIT A, EXCLUDING, however, any software relating to web-crawler or spider
technology used to index and catalog web sites on the Internet.
"Person" shall mean a natural person, sole proprietorship,
corporation, general partnership, limited partnership, limited liability
partnership, limited liability company, joint venture, unincorporated
organization, joint stock company, trust, estate, Regulatory Body or other
entity.
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"Regulatory Body" shall mean any national, state, municipal, local
or other governmental body or authority, or any quasi-governmental or private
body exercising any regulatory authority, including any subdivision or agency
thereof.
"Territory" shall mean the Republic of Korea.
2. LICENSE.
2.1 GRANT OF LICENSE. On the terms and subject to the conditions
of this Agreement, Lycos hereby grants to Licensee the following rights and
licenses:
(a) the exclusive right and license to provide, operate and
maintain the Local Searchservice at the Local Site;
(b) the exclusive right and license to market, promote and
otherwise exploit the Local Searchservice in the Territory;
(c) the exclusive right and license to use, store, process,
reformat, retrieve and transmit the Local Catalog and the Lycos Catalog, or any
portion thereof, and to allow users of the Local Searchservice to download from
the Local Catalog and the Lycos Catalog to the user's computer hard drive or
onto a separate disk, in connection with providing, operating and maintaining
the Local Searchservice at the Local Site;
(d) the exclusive right and license to select, design and
provide local content for, and to incorporate such local content into, the Local
Searchservice; and
(e) the exclusive right and license to use the Local Catalog,
the Lycos Catalog, the Licensed Marks, the Licensed Property, the Licensed
Software, the Licensed Technology and the Lycos Enhancements solely for purposes
of exercising the rights and licenses granted under this Section 2.1.
2.2 EXCLUSIVITY. The rights and licenses granted under Section
2.1 are exclusive only to the extent such rights and licenses relate to
providing, operating and maintaining the Local Searchservice at the Local Site
from any geographic location or to marketing, promoting and otherwise exploiting
the Local Searchservice in the Territory. Notwithstanding anything to the
contrary contained in this Agreement, Lycos reserves and shall have the right to
use or license the Local Catalog, the Lycos Catalog, the Licensed Marks, the
Licensed Property, the Licensed Software, the Licensed Technology and the Lycos
Enhancements for any purpose other than (except as required to perform its
duties under this Agreement) providing a Local Searchservice at an Internet site
ending with the designation "co.kr" or marketing, promoting or otherwise
exploiting a Local Searchservice in the Territory.
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2.3 RESTRICTIONS ON SUBLICENSING AND TRANSFER. Licensee shall
have no right to sublicense, sell, assign or otherwise transfer, whether
voluntarily or involuntarily, any of the rights and license granted under
Section 2.1.
2.4 RIGHTS NOT AFFECTED BY CERTAIN CHANGES. The rights of the
Company under this Agreement shall continue in accordance with the terms hereof
notwithstanding any change in the ownership of Lycos, any transfer of the assets
or business of Lycos, or any merger, consolidation, reorganization or
recapitalization affecting Lycos.
3. LOCAL SITE. To the extent permitted under applicable local law and
regulation, Lycos shall at all times be the owner of the domain name
"www.lycos.co.kr," which is the domain name comprising the Local Site. In the
event Lycos is at any time not permitted under applicable local law and
regulation to be the owner of the domain name "www.lycos.co.kr," then, at the
sole option of Lycos, Lycos shall procure for Licensee the right to use the
domain name "www.lycos.co.kr" or, alternatively, Licensee shall be the owner of
the domain name "www.lycos.co.kr," in which event Licensee shall enter into an
agreement with Lycos, in form and substance satisfactory to Lycos, assuring to
Lycos the actual benefit of ownership of the domain name "www.lycos.co.kr"
notwithstanding registered ownership in the name of Licensee.
4. CATALOG. Lycos shall be solely responsible for compiling,
maintaining and updating the Local Catalog and the Lycos Catalog. Licensee shall
not, without the prior written approval of Lycos in each instance, modify or
change the Local Catalog and the Lycos Catalog in any respect. Lycos shall
initially make the Local Catalog and the Lycos Catalog available as provided in
Section 6.1, and shall update the Local Catalog and the Lycos Catalog as
provided in Section 10.1.
5. LICENSED SOFTWARE. Lycos shall be solely responsible for (a)
making any modifications or changes to the Lycos Software which may be necessary
to develop or create Licensed Software capable of supporting the Local
Searchservice, and (b) updating the Licensed Software. Licensee shall not,
without the prior written approval of Lycos in each instance, modify or change
the Licensed Software in any respect. Lycos shall initially make the Licensed
Software available as provided in Section 6.1 and shall update the Licensed
Software as provided in Section 10.2.
6. AVAILABILITY OF LOCAL CATALOG, LYCOS CATALOG AND LICENSED
SOFTWARE.
6.1 INITIAL AVAILABILITY. Within thirty (30) days after the
Effective Date, Lycos shall make the Local Catalog, the Lycos Catalog and the
Licensed Software, each as then existing, available for use on a staging server
located in the United States, and shall inform Licensee how to access the Local
Catalog, the Lycos Catalog and the Licensed Software made available on such
staging server. During the Initial Availability Period, Licensee shall conduct
such tests of the Local Catalog, the Lycos Catalog and the Licensed Software as
Licensee deems necessary or desirable, and Lycos shall use reasonable commercial
efforts to resolve any performance issues with respect to the Local Catalog, the
Lycos Catalog and the Licensed Software as may be identified by Licensee and
communicated by Licensee to Lycos.
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6.2 SUBSEQUENT AVAILABILITY. Promptly after the Initial
Availability Period, and prior to the transfer of operations from Lycos to
Licensee pursuant to Section 8.3, Lycos shall make the Local Catalog, the Lycos
Catalog and the Licensed Software, each as then existing, available for use on
servers located in the United States and accessed through the Local Site. The
equipment shipped by Lycos to Licensee in connection with the transfer of
operations from Lycos to Licensee pursuant to Section 8.3 shall have installed
thereon the Local Catalog, the Lycos Catalog and the Licensed Software, each as
existing at the time of such shipment. Thereafter, Lycos shall, if required and
requested by Licensee, make the Local Catalog, the Lycos Catalog and Licensed
Software available to Licensee by File Transfer Protocol or Federal Express, as
Lycos may determine in its discretion.
7. LOCAL CONTENT. Licensee acknowledges that the displayable content
available through access to the Local Catalog, the Lycos Catalog and the
Licensed Software will be limited to the content of the Local Catalog and the
Lycos Catalog and displays relating directly to navigation and search functions.
Licensee shall design and develop local content, including both information and
advertising, customized for the market in the Territory using the principal
language of the Territory, and combine such local content with the displayable
content available through access to the Local Catalog, the Lycos Catalog and the
Licensed Software, all in a manner and format substantially similar to the Lycos
Searchservice.
8. START-UP AND TRANSFER OF OPERATIONS.
8.1 LAUNCH. Licensee shall commercially launch the Local
Searchservice through the Local Site within sixty (60) days after the end of the
Initial Availability Period, and as promptly as possible within such sixty (60)
day period as circumstances permit, making due allowance for the development of
a well-considered plan for the launch and initial marketing of the Local
Searchservice.
8.2 INITIAL OPERATIONS. Initially, Lycos shall operate and
maintain the Local Searchservice for Licensee using dedicated equipment
purchased by Lycos and installed and located in the United States. Licensee
shall reimburse Lycos for all costs (including indirect costs and overhead)
reasonably incurred by Lycos in operating and maintaining the Local
Searchservice for Licensee, including without limitation the cost of such
equipment, and costs incurred in preparing to commence such operation and
maintenance. Upon reimbursement by Licensee to Lycos for the cost of any such
equipment, title to such equipment shall pass from Lycos to Licensee on an "as
is, where is" basis, and Lycos shall assign to Licensee any manufacturer
warranties relating to such equipment to the extent any such warranties are
transferable.
8.3 TRANSFER OF OPERATIONS. When and as feasible, as
determined by Lycos and Licensee, Lycos shall transfer the operation and
maintenance of the Local Searchservice from Lycos to Licensee, and, in
connection with such transfer, the equipment as to which title has passed from
Lycos to Licensee under Section 8.2 shall be shipped by Lycos, at Licensee's
expense, to a site in the Territory designated by Licensee.
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9. TECHNICAL ASSISTANCE.
9.1 INITIAL TECHNICAL ASSISTANCE. During the period commencing
from the Effective Date and ending three (3) months after commercial launch of
the Local Searchservice, Lycos shall, without charge to Licensee, (a) provide
reasonable technical assistance to Licensee in the form of (i) telephone
consultation in English between Lycos technicians and Licensee's personnel, and
(ii) written materials, in English, covering matters specified by Licensee, and
(b) provide training at Lycos' principal place of business in the United States
for up to two (2) technical trainees who are employees of Licensee, for a total
of not more than three (3) man months, provided that the cost of travel, food
and lodging for such technical trainees shall be borne by Licensee.
9.2 SUBSEQUENT TECHNICAL ASSISTANCE. After the expiration of
the period referred to in Section 9.1, Lycos shall (a) provide reasonable
technical assistance to Licensee in the form of (i) telephone consultation in
English between Lycos technicians and Licensee's personnel, and (ii) written
materials, in English, covering matters specified by Licensee, and (b) from time
to time as reasonably requested by Licensee make technical representatives
available in the Republic of Korea, at times convenient to Lycos, to consult
with and provide technical assistance to Licensee. Licensee shall bear all costs
relating to such consultation and technical assistance, including without
limitation the costs of travel, food and lodging and per diem charges (including
coverage of overhead and indirect costs) on a per person basis at the most
favorable rates offered by Lycos for providing such services.
10. UPDATES.
10.1 CATALOG UPDATES. Lycos shall provide to Licensee updates
to (a) the Lycos Catalog when and as such updates are made accessible through
the Lycos Searchservice, and (b) the Local Catalog at the same intervals as, and
as soon as practical after, updates of the Lycos Catalog are made accessible
through the Lycos Searchservice. Licensee shall make payment to Lycos for all
such updates, and the payment amount for any such update shall be [an amount
equal to the product of (i) the spidering cost per day, multiplied by (ii) the
number of days required to generate such update]. Until operations are
transferred by Lycos to Licensee pursuant to Section 8.3, such updates shall be
made available on the equipment through which the Local Catalog and the Lycos
Catalog are made available, and Lycos shall promptly notify Licensee each time
any such update is made available. After operations are transferred by Lycos to
Licensee pursuant to Section 8.3, such updates shall be made available by File
Transfer Protocol or by Federal Express, as Lycos may determine.
10.2 LICENSED SOFTWARE UPDATES. Lycos shall provide to
Licensee, without charge, updates to (including entirely new versions of) the
Licensed Software at the same intervals as, and as soon as practical after,
updates of the Lycos Software and the Directory Software become available to
joint ventures in which Lycos has a significant participation interest through
share ownership or otherwise. Until operations are transferred by Lycos to
Licensee pursuant to Section
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8.3, such updates shall be made available by Lycos to Licensee on the equipment
through which the Lycos Software and the Directory Software are made available
by Lycos to Licensee, and Lycos shall promptly notify Licensee each time any
such update is made available. After operations are transferred by Lycos to
Licensee pursuant to Section 8.3, such updates shall be made available by Lycos
to Licensee by File Transfer Protocol or by Federal Express, as Lycos may
determine. At the time Lycos makes available to Licensee any updates to the
Licensed Software, Lycos shall notify Licensee of the changes to the Licensed
Software effected by such updates.
11. ADDITIONAL SERVICES AND NEW SERVICES.
11.1 COMMUNITY SERVICES. Concurrently with the execution of
this Agreement, Lycos and Licensee have entered into a community services
license agreement, as more specifically described therein.
11.2 NEW SERVICES. In the event that Lycos hereafter makes
available at www.lycos.com new services which are in addition to the Lycos
Searchservice and the community services provided for in the license agreement
referred to in Section 11.1, and Lycos exclusively owns or licenses (without
obligation to pay royalties and with right to sublicense) the rights to such new
services, Lycos shall, at Licensee's request, grant to Licensee the right and
license to provide local versions of such new services, subject, however, to the
execution of an appropriate license agreement between Lycos and Licensee on such
terms and conditions as may be mutually acceptable to Lycos and Licensee, which
license agreement shall include a provision for the payment of royalties by
Licensee to Lycos and a provision requiring Licensee to pay to Lycos all costs
and expenses (including overhead and indirect costs) incurred by Lycos in
connection with customization of the new service for the Territory. In the event
Lycos and Licensee fail to enter into any such license agreement with respect to
any such local version of any such new service within sixty (60) days after the
commencement of good faith negotiations, Lycos shall have no further obligation
under this Section 11.2 with respect to any such new service.
12. DUTIES OF LICENSEE.
12.1 MARKETING. As a material term of this Agreement, Licensee
shall use its best efforts to market, promote and commercially exploit the Local
Searchservice in the Territory.
12.2 TRAFFIC REPORTS.
(a) Commencing on the fifth business day of the month
immediately following the month in which operation of the Local Searchservice is
transferred by Lycos to Licensee pursuant to Section 8.3, and continuing on the
fifth business day of each month thereafter during the term of this Agreement,
Licensee shall provide to Lycos via electronic mail a file, in
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standard common log file format, containing a complete and detailed record for
the prior month of (a) user accesses (click stream data) to the Licensed
Software, (b) the total number of advertising impressions possible, (c)
advertising impressions filled expressed as a percentage of advertising
impressions possible, and (d) the number of specific advertisements placed by
each advertiser, indicating whether such advertisements are rotational, static
or keyword based.
(b) Commencing on the second business day of the week
immediately following the week in which the operation of the Local Searchservice
is transferred by Lycos to Licensee pursuant to Section 8.3, and continuing on
the second business day of each week thereafter during the term of this
Agreement, Licensee shall provide to Lycos via electronic mail a report
summarizing the previous week's daily traffic to the Local Site
12.3 COMPLIANCE WITH LAW. Licensee shall operate and maintain the
Local Searchservice in compliance with all applicable laws, rules and
regulations of any relevant Regulatory Body.
12.4 STANDARD OF OPERATION. Licensee shall operate and maintain
the Local Searchservice in a manner which is consistent with the quality
standards of Lycos and which meets or exceeds the response performance standards
of the Lycos Searchservice
12.5 LYCOS APPROVAL OF SAMPLE MATERIALS. Lycos shall have the
right to approve, prior to distribution, samples of all hard copy advertising
and promotional materials developed by Licensee and using any of the Licensed
Marks. Licensee shall submit each such sample to Lycos for approval, and, in the
event Lycos fails to disapprove any such sample within fifteen (15) days after
submission, such sample shall be deemed approved.
12.6 NON-COMPETITION. For so long as this Agreement remains in
effect, Licensee shall not, directly or indirectly, alone or in combination with
others, purchase, establish, maintain, invest in or otherwise promote, or agree
to purchase, establish, maintain, invest in or otherwise promote, any
navigation, search, directory or community service, except that the foregoing
restriction shall not apply to passive portfolio investments in an entity not in
excess of five percent (5%) of the total equity of such entity and, prior to any
termination of this Agreement, the foregoing restriction shall not apply to the
Local Searchservice or any additional or new services made available in
connection with the Local Searchservice as contemplated by Section 11.
12.7 PRIVACY POLICY. Licensee agrees to implement a privacy policy
consistent with that utilized by Lycos in connection with the Lycos
Searchservice, with such modifications as may be required by applicable law.
13. [A CONFIDENTIAL PORTION OF THE MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
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14. RIGHTS IN INTELLECTUAL PROPERTY.
14.1 RESERVATION OF RIGHTS. Except as otherwise expressly set
forth in Section 2.1, no right, title or interest in or to the Local Catalog,
the Lycos Catalog, the Licensed Software, the Licensed Technology, the Licensed
Marks, the Licensed Property, the Lycos Enhancements, the Local Searchservice or
the domain name "www.lycos.co.kr," or in or to any other intellectual property,
shall pass to Licensee under this Agreement. Without limiting the foregoing, no
right or license is granted or shall pass to Licensee with respect to any
web-crawler or spidering technology used to index and catalog web sites on the
Internet, or to any patents, copyrights, knowhow, software or other rights or
property relating to any such technology.
14.2 LYCOS ENHANCEMENTS. All ownership and other rights in and
to the Lycos Enhancements shall vest in and inure to the benefit of Lycos. Upon
request, Licensee shall execute all such documents, including without limitation
documents of assignment, and take all such steps and render all such assistance
as may be necessary to assure to Lycos its rights under this Section 14.2.
14.3 JOINT ENHANCEMENTS. All ownership and other rights in and
to Joint Enhancements shall vest in and inure to the benefit of Lycos and
Licensee jointly. Each party shall have the right to use Joint Enhancements, but
neither party shall have the right to license Joint Enhancements without the
prior written consent of the other party.
14.4 LICENSEE ENHANCEMENTS. All ownership and other rights in
and to the Licensee Enhancements shall vest in and inure to the benefit of
Licensee. Licensee hereby grants to Lycos a royalty-free, non-exclusive,
worldwide (except for the Territory) license, with the right to sublicense, to
use the Licensee Enhancements in connection with the Lycos Searchservice or
otherwise.
14.5 NO REGISTRATION. Licensee shall not, in the Territory or
in any other jurisdiction, make any registration or application with respect to
any patents, trademarks, service
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marks, copyrights or other intellectual property owned or licensed by Lycos,
including without limitation the Licensed Marks and the Licensed Property, or,
except as otherwise expressly contemplated by Section 3, with respect to any
domain name which includes the word "lycos," including without limitation the
domain name "www.lycos.co.kr."
14.6 BENEFIT. All use of the Licensed Marks and Licensed
Property shall inure to the benefit of Lycos, or, as applicable, its licensors.
15. MARKING AND PROTECTION.
15.1 MARKING OF MATERIALS. Licensee shall include appropriate
patent, trademark and copyright markings and notations in the Local
Searchservice and in all marketing, advertising, promotional and other materials
which use or refer to the Licensed Marks or the Licensed Property. Without
limiting the foregoing, if the trademark "Lycos(R)" appears in any such
materials, such materials shall include the following statement: "(C)1995-____
Lycos, Inc. Lycos(R) is a registered trademark of Carnegie Mellon University.
All Rights Reserved."
15.2 MARKING OF ENTRY SCREEN. The following statement shall
appear on the entry screen of the Local Searchservice and at the bottom of each
search result, in a font no smaller than the font for the main text used in the
Local Searchservice and otherwise in such manner as Lycos may specify to
Licensee from time to time:
"(C)1995-____ Lycos, Inc. Lycos(R) is a registered
trademark of Carnegie Mellon University. All Rights
Reserved."
15.3 PROTECTION. Licensee shall at all times take such steps
to protect the rights of Lycos in and to the Licensed Marks, the Licensed
Property, the Local Catalog, the Lycos Catalog, the Licensed Software, the
Licensed Technology, the Lycos Enhancements and the Local Searchservice as
Licensee takes to protect its rights with respect to its own intellectual
property, and in any event shall use a reasonable degree of care to protect such
rights of Lycos.
16. WARRANTIES; DISCLAIMER; EXCLUSIVE REMEDY.
16.1 LIMITED WARRANTY. LYCOS WARRANTS THAT THE LICENSED
SOFTWARE, WHEN USED WITH THE LOCAL CATALOG, WILL FUNCTION IN SUBSTANTIALLY THE
SAME MANNER AS THE LYCOS SOFTWARE FUNCTIONS WHEN USED WITH THE LYCOS CATALOG,
AND THAT THE SEARCH RESULTS RETRIEVED FROM THE LOCAL CATALOG USING THE LICENSED
SOFTWARE WILL HAVE SUBSTANTIALLY THE SAME APPEARANCE (ALLOWING FOR DIFFERENCES
ATTRIBUTABLE TO LANGUAGE, DIFFERENCES IN CONTENT AND LOCAL CUSTOMIZATION) AS THE
SEARCH RESULTS RETRIEVED FROM THE LYCOS CATALOG USING THE LYCOS SOFTWARE.
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16.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 16.1,
LYCOS MAKES NO WARRANTIES OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY WARRANTY
REGARDING THE ACCURACY OR CONTENT OF ANY INFORMATION OBTAINED BY USING THE
LICENSED SOFTWARE, ALL OF WHICH OTHER WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.
16.3 REMEDY. LYCOS' SOLE OBLIGATION AND LICENSEE'S SOLE REMEDY
UNDER THE LIMITED WARRANTY SET FORTH IN SECTION 16.1 IS THAT LYCOS SHALL USE
REASONABLE COMMERCIAL EFFORTS TO CORRECT ANY PROBLEMS WITH THE LICENSED SOFTWARE
WHICH PREVENT THE LICENSED SOFTWARE FROM FUNCTIONING AS WARRANTED, OR WHICH
CAUSE THE APPEARANCE OF THE LOCAL CATALOG TO BE OTHER THAN AS WARRANTED.
16.4 EXCLUSIONS. THE LIMITED WARRANTY SET FORTH IN SECTION 16.1
SHALL CEASE TO APPLY IN THE EVENT LICENSEE MAKES ANY MODIFICATION TO THE
LICENSED SOFTWARE OR THE LOCAL CATALOG WITHOUT THE EXPRESS WRITTEN CONSENT OF
LYCOS.
16.5 WARRANTY PERIOD. THE LIMITED WARRANTY SET FORTH IN SECTION
16.1 SHALL APPLY DURING THE SIXTY (60) DAY PERIOD COMMENCING FROM THE DATE OF
THE COMMERCIAL LAUNCH OF THE LOCAL SEARCHSERVICE, AND SHALL APPLY DURING THE
SIXTY (60) DAY PERIOD COMMENCING FROM THE DATE ON WHICH THE TRANSFER OF
OPERATIONS CONTEMPLATED BY SECTION 8.3 IS COMPLETED. LYCOS SHALL NOT HAVE ANY
OBLIGATION OR LIABILITY UNDER SUCH LIMITED WARRANTY, EXCEPT AS TO CLAIMS ARISING
DURING EITHER SIXTY (60) DAY PERIOD REFERRED TO ABOVE IN THIS SECTION 16.5 AND
AS TO WHICH LYCOS HAS RECEIVED PROMPT WRITTEN NOTICE.
16.6 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION LOST PROFITS. LICENSEE AGREES THAT LYCOS' MAXIMUM LIABILITY TO
LICENSEE UNDER THIS AGREEMENT, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE SUM OF FIVE
HUNDRED THOUSAND U.S. DOLLARS (U.S.$ 500,000).
17. INFRINGEMENT.
17.1 INFRINGEMENT. In the event the use of the Licensed
Software by Licensee or any user of the Local Searchservice is alleged or
determined to infringe on the rights of any third
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party, Lycos shall, at its own expense and in its sole discretion, (a) procure
for Licensee and users of the Local Searchservice the right to continue such
use, (b) replace the Licensed Software with non-infringing software or modify
the Licensed Software to make it non-infringing, or (c) if neither of the
remedies described in (a) and (b) are commercially reasonable, terminate this
Agreement and accept the return of the Licensed Software.
17.2 INDEMNIFICATION. Lycos shall defend (or settle), indemnify
and hold Licensee harmless from and against any claim, liability, damage, cost
or expense (including reasonable attorneys' fees) arising out of any actual or
alleged infringement by the Licensed Software on the rights of third parties. In
connection with any such defense (or settlement), Lycos shall have the right, in
its sole discretion, to select counsel of its own choosing. Upon designation of
such counsel by Lycos, Licensee may, in its sole discretion and at its sole cost
and expense, choose to be represented by its own counsel. In any event, Lycos
and Licensee shall cooperate in any such defense (or settlement).
17.3 LIMITATION. Lycos shall not have any obligation or liability
to Licensee under Section 17.1 or Section 17.2 with respect to any Licensed
Software which has been modified by Licensee without the express written consent
of Lycos, or with respect to any claim or matter as to which Licensee fails to
give written notice to Lycos within fifteen (15) days after Licensee receives
notice or otherwise becomes aware of such claim or matter.
17.4 DISCLAIMER. Lycos shall have no obligations or liabilities
under this Agreement with respect to any claims, liabilities, damages, costs or
expenses, by reason of actual or alleged infringement on the rights of third
parties or otherwise, which arise out of any use of the Licensed Marks by
Licensee or any use of the Local Catalog or the Lycos Catalog by Licensee or any
users of the Local Searchservice.
18. CONFIDENTIALITY.
18.1 CONFIDENTIALITY. For so long as this Agreement remains in
effect and for a period of three (3) years after any expiration or termination
of this Agreement, each party shall keep strictly confidential, and shall not
disclose, any confidential information of the other party received under or in
connection with this Agreement, including without limitation any information,
written or oral, relating to customers, costs, profits, markets, sales,
products, product development, key personnel, pricing policies, operational
methods, technology, know-how, technical processes, formulae or plans for future
development; provided, however, that confidential information shall not include,
and the disclosure restrictions of this Section 18.1 shall not apply to, any
information received from the other party which:
(a) was already known to the recipient at the time of
receipt;
(b) was at the time of receipt, or thereafter becomes,
freely and generally available to the public through no wrongful act of the
recipient;
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(c) is rightfully received by the recipient from a third
party legally entitled to disclose such information free of confidentiality
restrictions;
(d) is disclosed by the recipient pursuant to the order of
any court or in connection with any legal proceeding commenced by or against the
recipient, provided that prior to any such disclosure the recipient shall give
the other party a reasonable opportunity to seek a protective order with respect
to any such disclosure; or
(e) is disclosed by the recipient, or any Affiliate of the
recipient, as required under any applicable securities laws
Upon the expiration or termination of this Agreement, each party shall either
destroy or return to the other party all memoranda, notes, records, reports and
other documents (including all copies thereof) containing any confidential
information of such other party and in such party's possession or under its
control at the time of such expiration or termination, and shall give written
certification of compliance with this paragraph to the other party.
18.2 PRESS RELEASES AND ANNOUNCEMENTS.. Neither party shall
issue any press releases or public announcements relating to this Agreement, the
transactions contemplated by this Agreement or the business of Licensee without
the prior written approval of the other party, which approval shall not be
unreasonably withheld or delayed, except that each party shall be permitted to
issue any press releases or publicity statements (whether or not approved by the
other party) to the extent required by any applicable securities laws, and Lycos
shall have the right to issue press releases and make public announcements
relating to its products, services and plans.
19. TERM AND TERMINATION.
19.1 TERM. The term of this Agreement shall commence from the
Effective Date and continue until the sooner of (a) the date on which the
parties hereto mutually agree to terminate this Agreement; (b) the date on which
this Agreement is terminated pursuant to the Joint Venture Agreement dated as of
March 19, 1999 between Lycos and Mirae Corporation; (c) the date on which any
bankruptcy or insolvency proceeding is commenced by or against Licensee; (d) the
date on which Licensee ceases to transact business for a period of not less than
thirty (30) consecutive days; or (e) the date on which Licensee ceases its
corporate existence (by dissolution or otherwise).
19.2 TERMINATION FOR BREACH. Either party may terminate this
Agreement in the event the other party breaches this Agreement and such breach,
if susceptible of cure, remains uncured for thirty (30) days after such party
gives written notice of such breach to such other party.
19.3 EFFECT OF TERMINATION. The expiration or termination of
this Agreement shall not affect any payment obligations of either party to the
other accrued or otherwise existing as of the
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date of such expiration or termination. Upon the expiration or termination of
this Agreement for any reason, all of the rights and licenses granted under
Section 2.1 shall terminate, and Licensee shall immediately (a) cease any use of
the Licensed Marks, the Licensed Property, the Local Catalog, the Lycos Catalog,
the Licensed Software, the Licensed Technology and the Lycos Enhancements, (b)
either return to Lycos or destroy all embodiments thereof, and (c) certify to
Lycos in writing that Licensee has complied with the requirements of clauses (a)
and (b) of this Section 19.3.
19.4 SURVIVAL. The provisions of Sections 12.6, 14 and 18 shall
survive any expiration or termination of this Agreement.
20. MISCELLANEOUS.
20.1 COSTS. Except as may be otherwise expressly provided in
this Agreement, each party shall bear its own costs and expenses in carrying out
its obligations under this Agreement.
20.2 LATE PAYMENTS. All amounts payable by either party to the
other party under this Agreement shall be due and payable within thirty (30)
days of the date of invoice. If any payment is not received within thirty (30)
days of the date of invoice, interest will be imposed on such amount from the
date due until paid in full at a rate of interest per annum equal to the rate
announced from time to time by the Chase Manhattan Bank as its prime or
reference rate, plus five percent (5%).
20.3 NOTICES. Any notice, request, demand, approval or consent
required or permitted under this Agreement shall be in writing and shall be
effective upon actual receipt when delivered by (a) registered mail, postage
prepaid, return receipt requested, (b) personal delivery, (c) an overnight
courier of recognized reputation (such as DHL or Federal Express), or (d)
transmission by facsimile (with confirmation by mail), in each case addressed as
follows:
If to Lycos: Lycos, Inc.
400-2 Totten Pond Road
Waltham, MA 02154
Attention: General Counsel
Telephone: (781) 370-2700
Facsimile: (781) 370-2600
With a copy to: Coudert Brothers
1055 West 7th Street, 20th Floor
Los Angeles, CA 90017
Attention: Richard G. Wallace
Telephone: (213) 688-9088
Facsimile: (213) 689-4467
If to Licensee: Lycos Korea, Inc.
c/o Mirae Corporation
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#1309, Korea Stock Exchange, Annex Bldg.,
33, Yoidodong, Youngdungpo-gu
Seoul, Korea 150-010
Attention: Kyung Dal Cho
Telephone: 82-2-783-0059
Facsimile: 82-2-783-0057
Either party may change its address or facsimile number for notice purposes by
notice given to the other party in accordance with this Section 20.3.
20.4 ASSIGNMENT. Neither party's rights, duties or
responsibilities under this Agreement may be assigned, delegated or otherwise
transferred in any manner, without the prior written consent of the other party.
Notwithstanding the foregoing, no such consent shall be required in connection
with the assignment, delegation or other transfer of any such rights, duties or
responsibilities (a) by Lycos to an Affiliate, or (b) in connection with any
transaction, regardless of its form, in which all or substantially all of the
assets of Lycos are acquired.
20.5 ENTIRE AGREEMENT. This Agreement, including the exhibits
referred to herein, which are hereby incorporated in and made a part of this
Agreement, constitutes the entire contract between the parties with respect to
the subject matter covered by this Agreement. This Agreement supersedes all
previous letters of intent, agreements and understandings, if any, by and
between the parties with respect to the subject matter covered by this
Agreement. This Agreement may not be amended, changed or modified except by a
writing duly executed by the parties hereto.
20.6 SEVERABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable, invalid or void in any
respect, no other provision of this Agreement shall be affected thereby, all
other provisions of this Agreement shall nevertheless be carried into effect and
the parties shall amend this Agreement to modify the unenforceable, invalid or
void provision to give effect to the intentions of the parties to the extent
possible in a manner which is valid and enforceable.
20.7 REMEDIES AND WAIVERS. All rights and remedies of the
parties are separate and cumulative, and no one of them, whether exercised or
not, shall be deemed to be to the exclusion of or to limit or prejudice any
other rights or remedies which the parties may have. The parties shall not be
deemed to waive any of their rights or remedies under this Agreement, unless
such waiver is in writing and signed by the party to be bound. No delay or
omission on the part of either party in exercising any right or remedy shall
operate as a waiver of such right or remedy or any other right or remedy. A
waiver on any one occasion shall not be construed as a bar to or waiver of any
right or remedy on any future occasion.
20.8 ARBITRATION. In the event any dispute arises between the
parties with respect to any matter arising out of or relating to this Agreement
which cannot be amicably resolved, such dispute shall be submitted to the
International Chamber of Commerce for binding arbitration in
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accordance with the commercial arbitration rules of the International Chamber of
Commerce as then in effect. The arbitration shall be conducted in the English
language, and shall be held in London, England. Any arbitration award rendered
in any such arbitration proceeding may be entered in and enforced by any court
of competent jurisdiction. Nothing contained in this Section 20.8 shall prevent
or be construed to prevent either party from seeking a temporary restraining
order or a preliminary or permanent injunction or any other form of interim,
provisional or equitable relief in any court of competent jurisdiction.
20.9 GOVERNING LAW. This Agreement shall be governed by, and
interpreted in accordance with, the laws (other than that body of law relating
to conflicts of law) of Massachusetts, United States of America. Licensee hereby
consents to the non-exclusive jurisdiction of the federal and state courts
located in Massachusetts, United States of America, and waives all objections to
the laying of venue in Massachusetts, including without limitation any objection
based on inconvenient forum. Licensee further consents to the service of process
by mail or by any other means permitted by Massachusetts law.
20.10 ATTORNEYS' FEES. In the event any action or proceeding
is initiated for any breach of or default in any of the terms or conditions of
this Agreement, then the party in whose favor judgment shall be entered or an
arbitration award shall be made, shall be entitled to have and recover from the
other party all costs and expenses (including attorneys' fees) incurred in such
action or proceeding and any appeal therefrom.
20.11 HEADINGS. The headings contained in this Agreement are
for convenience only and are not a part of this Agreement, and do not in any way
interpret, limit or amplify the scope, extent or intent of this Agreement, or
any of the provisions of this Agreement.
20.12 COUNTERPARTS AND FACSIMILE. This Agreement may be
executed in counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same agreement. Transmission of
facsimile copies of signed original signature pages of this Agreement shall have
the same effect as delivery of the signed originals.
20.13 TRANSLATION. For the convenience of the parties, one or
more Korean translations of this Agreement may be prepared. Notwithstanding the
preparation or existence of any such Korean translations, the English language
version of this Agreement shall be controlling.
20.14 THIRD PARTY BENEFICIARY. This Agreement is not intended
to and does not confer any rights on any third party, and no such third party
shall be a third party beneficiary under or in respect of this Agreement.
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20.15 BINDING EFFECT. Subject to Section 20.4, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LYCOS, INC.,
a corporation organized under the laws of
Delaware, USA
By:
--------------------------------------
Its:
-------------------------------------
LYCOS KOREA, INC.
a CHUSIK HOESA organized under the laws of
the Republic of Korea
By:
--------------------------------------
Its:
-------------------------------------
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EXHIBITS
Exhibit A: Licensed Software
Exhibit B: Licensed Marks
EXHIBIT A
LYCOS SOFTWARE
1. Lycos Web Server
(a) Pursuit Search Engine
(b) Advertising Support Code (to the extent owned
exclusively by Lycos)
(c) Load Balance Code
(d) Fault Tolerance Failover
(e) Real Time Security and Traffic Monitoring
(f) Log Analysis Code that provides collection,
compression, and report generation of all http
services
2. Fault Tolerance Monitoring and Security Demons
EXHIBIT B
Licensed Marks
--------------
Tripod name and logo
Licensed Property
-----------------
Patents--None
Exhibit 10.28
EXHIBIT B-2
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is made and entered into as
of _____________, 1999 by and between TRIPOD, INC., a corporation organized
under the laws of the State of Delaware, United States of America ("Tripod"),
and LYCOS KOREA, INC., a CHUSIK HOESA organized under the laws of the Republic
of Korea ("Licensee").
RECITALS
A. Tripod owns or licenses from third parties certain rights relating
to the Tripod Service (as defined below).
B. Licensee desires to offer a local version of the Tripod Service, in
the Korean language and as otherwise customized for the Korean market.
C. On the terms and subject to the conditions hereafter set forth,
Licensee desires to obtain from Tripod, and Tripod is willing to grant to
Licensee, the rights and licenses described below.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and for other valuable consideration received, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the meanings set forth below:
"Affiliate" shall mean, as to any Person, any other Person
that, directly or indirectly, controls, is under common control with, or is
controlled by, such Person, where such control is by the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise.
"Derivative Works" shall mean all Enhancements which are
"derivative works" and "compilations" as such terms are defined in the U.S.
Copyright Act (17 U.S.C. Section 101 et seq.).
"Enhancements" shall mean all enhancements, improvements,
additions or modifications to the Licensed Software, the Licensed Technology or
the Local Service, of whatever type or nature, whether created or developed
solely by Tripod or its Affiliates, agents, consultants or independent
contractors, solely by Licensee or its Affiliates, agents, consultants or
independent contractors, or jointly by Tripod or its Affiliates, agents,
consultants or independent contractors, on one hand, and Licensee or its
Affiliates, agents, consultants or independent contractors, on the other hand.
"Effective Date" shall mean the date of this Agreement as set
forth in the preamble hereof.
"Internet" shall mean the various computer networks commonly
and collectively referred to as the "internet," as the same may exist from time
to time.
"Initial Availability Period" shall mean the thirty (30) day
period commencing from the date Tripod makes the Licensed Software initially
available to Licensee under Section 6.1, or such shorter period as may be agreed
to between Tripod and Licensee.
"Joint Enhancements" shall mean any Enhancements which are not
Derivative Works and which are created or developed jointly by Tripod or its
Affiliates, agents, consultants or independent contractors, on one hand, and
Licensee or its Affiliates, agents, consultants or independent contractors, on
the other hand.
"Licensed Marks" shall mean all trademarks and service marks
owned or licensed (without obligation to pay royalties and with right to
sublicense) by Tripod as of the date of this Agreement and used by Tripod in
connection with the Tripod Service, which trademarks and service marks are
listed in the attached EXHIBIT B.
"Licensed Property" shall mean all patents and patent rights
listed in the attached EXHIBIT B and all rights in copyright now or hereafter
owned exclusively or licensed (without obligation to pay royalties and with
right to sublicense) by Tripod and pertaining to the Licensed Software, the
Licensed Technology, the Local Service or the Tripod Enhancements.
"Licensed Software" shall mean the Tripod Software, as enabled
to handle double-byte characters, and all relevant application programming
interfaces, as the Tripod Software and the relevant application programming
interfaces are modified or supplemented to support the Local Service and to
enable a user to create a homepage at the Local Site or at www.tripod.com, to
create a mirror of such homepage at the other of such sites and to link such
homepages, and as thereafter modified, supplemented, replaced or updated from
time to time.
"Licensed Technology" shall mean all inventions, ideas,
knowhow, expertise, trade secrets and proprietary information now or hereafter
owned exclusively or licensed (without obligation to pay royalties and with
right to sublicense) by Tripod and used by Tripod to operate the Tripod Service
and to enable a user to create a homepage at the Local Site or at
www.tripod.com, to create a mirror of such homepage at the other of such sites
and to link such homepages.
"Licensee Enhancements" shall mean shall mean any Enhancements
which (a) are not Derivative Works, and (b) are created or developed solely by
Licensee or its Affiliates, agents, consultants or independent contractors
(other than Tripod) without breaching any provision of this Agreement.
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"Local Service" shall mean a local version of the Tripod
Service, as customized for the Territory and in the principal language of the
Territory.
"Local Site" shall mean www.tripod.co.kr, the Internet site
through which the Local Service is to be made available to users, as provided
for in Section 3.
"Person" shall mean a natural person, sole proprietorship,
corporation, general partnership, limited partnership, limited liability
partnership, limited liability company, joint venture, unincorporated
organization, joint stock company, trust, estate, Regulatory Body or other
entity.
"Regulatory Body" shall mean any national, state, municipal,
local or other governmental body or authority, or any quasi-governmental or
private body exercising any regulatory authority, including any subdivision or
agency thereof.
"Territory" shall mean the Republic of Korea.
"Tripod Enhancements" shall mean any Enhancements which are
(a) Derivative Works, or (b) created or developed solely by Tripod or its
Affiliates, agents, consultants or independent contractors.
"Tripod Service" shall mean the "web site community" service
offered by Tripod on an advertiser supported basis at www.tripod.com, featuring
a homepage building service and opportunities for users to interact.
"Tripod Software" shall mean all computer software owned
exclusively or licensed (without obligation to pay royalties and with right to
sublicense) by Tripod, used by Tripod to operate and maintain the Tripod
Service, and performing the functionality described in the attached EXHIBIT A.
2. LICENSE.
2.1 GRANT OF LICENSE. On the terms and subject to the
conditions of this Agreement, Tripod hereby grants to Licensee the following
rights and licenses:
(a) the exclusive right and license to provide, operate and
maintain the Local Service at the Local Site;
(b) the exclusive right and license to market, promote and
otherwise exploit the Local Service in the Territory;
(c) the exclusive right and license to use the Licensed
Marks, the Licensed Property, the Licensed Software, the Licensed Technology and
the Tripod Enhancements solely for purposes of exercising the rights and
licenses granted under this Section 2.1.
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2.2 EXCLUSIVITY. The rights and licenses granted under
Section 2.1 are exclusive only to the extent such rights and licenses relate to
providing, operating and maintaining the Local Service at the Local Site from
any geographic location or to marketing, promoting and otherwise exploiting the
Local Service in the Territory. Notwithstanding anything to the contrary
contained in this Agreement, Tripod reserves and shall have the right to use or
license the Licensed Marks, the Licensed Property, the Licensed Software, the
Licensed Technology and the Tripod Enhancements for any purpose other than
(except as required to perform its duties under this Agreement) providing a
Local Service at an Internet site ending with the designation "co.kr" or
marketing, promoting or otherwise exploiting a Local Service in the Territory.
2.3 RESTRICTIONS ON SUBLICENSING AND TRANSFER. Licensee
shall have no right to sublicense, sell, assign or otherwise transfer, whether
voluntarily or involuntarily, any of the rights and license granted under
Section 2.1.
2.4 RIGHTS NOT AFFECTED BY CERTAIN CHANGES. The rights of
Licensee under this Agreement shall continue in accordance with the terms hereof
notwithstanding any change in the ownership of Tripod, any transfer of the
assets or business of Tripod, or any merger, consolidation, reorganization or
recapitalization affecting Tripod.
3. LOCAL SITE. To the extent permitted under applicable local law
and regulation, Tripod shall at all times be the owner of the domain name
"www.tripod.co.kr," which is the domain name comprising the Local Site. In the
event Tripod is at any time not permitted under applicable local law and
regulation to be the owner of the domain name "www.tripod.co.kr," then, at the
sole option of Tripod, Tripod shall procure for Licensee the right to use the
domain name "www.tripod.co.kr" or, alternatively, Licensee shall be the owner of
the domain name "www.tripod.co.kr," in which event Licensee shall enter into an
agreement with Tripod, in form and substance satisfactory to Tripod, assuring to
Tripod the actual benefit of ownership of the domain name "www.tripod.co.kr"
notwithstanding registered ownership in the name of Licensee.
4. LICENSED SOFTWARE. Tripod shall be solely responsible for
(a) making any modifications or changes to the Tripod Software which may be
necessary to develop or create Licensed Software capable of supporting the Local
Service, and (b) updating the Licensed Software. Licensee shall not , without
the prior written approval of Tripod in each instance, modify or change the
Licensed Software in any respect. Tripod shall initially make the Licensed
Software available as provided in Section 5.1 and shall update the Licensed
Software as provided in Section 8.2.
5. AVAILABILITY OF LICENSED SOFTWARE.
5.1 INITIAL AVAILABILITY. Within thirty (30) days after the
Effective Date, Tripod shall make the Licensed Software, as then existing,
available for use on a staging server located in the United States, and shall
inform Licensee how to access the Licensed Software made available on such
staging server. During the Initial Availability Period, Licensee shall conduct
such tests of
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the Licensed Software as Licensee deems necessary or desirable, and Tripod shall
use reasonable commercial efforts to resolve any performance issues with respect
to the Licensed Software as may be identified by Licensee and communicated by
Licensee to Tripod.
5.2 SUBSEQUENT AVAILABILITY. Promptly after the Initial
Availability Period, and prior to the transfer of operations from Tripod to
Licensee pursuant to Section 6.3, Tripod shall make the Licensed Software, as
then existing, available for use on servers located in the United States and
accessed through the Local Site. The equipment shipped by Tripod to Licensee in
connection with the transfer of operations from Tripod to Licensee pursuant to
Section 6.3 shall have installed thereon the Licensed Software, as existing at
the time of such shipment. Thereafter, Tripod shall, if required and requested
by Licensee, make the Licensed Software available to Licensee by File Transfer
Protocol or Federal Express, as Tripod may determine in its discretion.
6. START-UP, TRANSFER OF OPERATIONS AND IMPLEMENTATION OF
MIRRORED SITES.
6.1 LAUNCH. Licensee shall commercially launch the Local
Service through the Local Site within sixty (60) days after the end of the
Initial Availability Period, and as promptly as possible within such sixty (60)
day period as circumstances permit, making due allowance for the development of
a well-considered plan for the launch and initial marketing of the Local
Service.
6.2 INITIAL OPERATIONS. Initially, Tripod shall operate and
maintain the Local Service for Licensee using dedicated equipment installed and
located in the United States. Licensee shall reimburse Tripod for all costs
(including indirect costs and overhead) reasonably incurred by Tripod in
operating and maintaining the Local Service for Licensee, and costs incurred in
preparing to commence such operation and maintenance.
6.3 TRANSFER OF OPERATIONS. When and as feasible, as
determined by Tripod and Licensee, Tripod shall transfer the operation and
maintenance of the Local Service from Tripod to Licensee.
6.4 IMPLEMENTATION OF MIRRORED SITES. Tripod shall use
reasonable commercial efforts, using information collected from users of the
Tripod Service, to identify any such users who are resident in the Territory and
to compile and maintain a current list of such users and their e-mail addresses.
Tripod shall take reasonable commercial steps to acquaint users of the Tripod
Service who are listed on such list, as updated from time to time, with the
availability of the Local Service and the opportunity to mirror at the Local
Site homepages created using the Tripod Service and to link the mirrored
homepage at the Local Site with the original homepage created using the Tripod
Service. Tripod shall transfer to Licensee, in such manner as may be agreed to
between Tripod and Licensee, the relevant data with respect to homepages created
by users of the Tripod Service whose names appear on the list of Tripod users
resident in the Territory as maintained by Tripod under this Section 6.4.
Commencing for the month in which such mirrored sites are initially created,
Tripod shall provide to Licensee monthly tracking information on transfers by
users of the Tripod Service between homepages created using the Tripod Service
and mirrored homepages at the Local Site.
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Tripod shall from time to time furnish to Licensee the e-mail addresses of the
users of the Tripod Service listed on the list maintained by Tripod under this
Section 6.4, provided that Licensee shall not disclose such e-mail addresses to
any third party without the written consent of Tripod.
7. TECHNICAL ASSISTANCE.
7.1 INITIAL TECHNICAL ASSISTANCE. During the period
commencing from the Effective Date and ending three (3) months after commercial
launch of the Local Service, Tripod shall, without charge to Licensee, (a)
provide reasonable technical assistance to Licensee in the form of (i) telephone
consultation in English between Tripod technicians and Licensee's personnel, and
(ii) written materials, in English, covering matters specified by Licensee, and
(b) provide training at Tripod's principal place of business in the United
States for up to two (2) technical trainees who are employees of Licensee, for a
total of not more than three (3) man months, provided that the cost of travel,
food and lodging for such technical trainees shall be borne by Licensee.
7.2 SUBSEQUENT TECHNICAL ASSISTANCE. After the expiration of
the period referred to in Section 7.1, Tripod shall (a) provide reasonable
technical assistance to Licensee in the form of (i) telephone consultation in
English between Tripod technicians and Licensee's personnel, and (ii) written
materials, in English, covering matters specified by Licensee, and (b) from time
to time as reasonably requested by Licensee make technical representatives
available in the Republic of Korea, at times convenient to Tripod, to consult
with and provide technical assistance to Licensee. Licensee shall bear all costs
relating to such consultation and technical assistance, including without
limitation the costs of travel, food and lodging and per diem charges (including
coverage of overhead and indirect costs) on a per person basis at the most
favorable rates offered by Tripod for providing such services.
8. LICENSED SOFTWARE UPDATES. Tripod shall provide to Licensee,
without charge, updates to (including entirely new versions of) the Licensed
Software at the same intervals as, and as soon as practical after, updates of
the Tripod Software become available for release to Tripod licensees. Until
operations are transferred by Tripod to Licensee pursuant to Section 6.3, such
updates shall be made available by Tripod to Licensee on the equipment through
which the Tripod Software is made available by Tripod to Licensee, and Tripod
shall promptly notify Licensee each time any such update is made available.
After operations are transferred by Tripod to Licensee pursuant to Section 6.3,
such updates shall be made available by Tripod to Licensee by File Transfer
Protocol or by Federal Express, as Tripod may determine. At the time Tripod
makes available to Licensee any updates to the Licensed Software, Tripod shall
notify Licensee of the changes to the Licensed Software effected by such
updates.
9. DUTIES OF LICENSEE.
9.1 MARKETING. As a material term of this Agreement,
Licensee shall use its best efforts to market, promote and commercially exploit
the Local Service in the Territory.
9.2 TRAFFIC REPORTS.
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(a) Commencing on the fifth business day of the month
immediately following the month in which operation of the Local Service is
transferred by Tripod to Licensee pursuant to Section 6.3, and continuing on the
fifth business day of each month thereafter during the term of this Agreement,
Licensee shall provide to Tripod via electronic mail a file, in standard common
log file format, containing a complete and detailed record for the prior month
of (a) user accesses (click stream data) to the Licensed Software, (b) the total
number of advertising impressions possible, (c) advertising impressions filled
expressed as a percentage of advertising impressions possible, and (d) the
number of specific advertisements placed by each advertiser, indicating whether
such advertisements are rotational, static or keyword based.
(b) Commencing on the second business day of the week
immediately following the week in which the operation of the Local Service is
transferred by Tripod to Licensee pursuant to Section 6.3, and continuing on the
second business day of each week thereafter during the term of this Agreement,
Licensee shall provide to Tripod via electronic mail a report summarizing the
previous week's daily traffic to the Local Site.
9.3 COMPLIANCE WITH LAW. Licensee shall operate and maintain
the Local Service in compliance with all applicable laws, rules and regulations
of any relevant Regulatory Body.
9.4 STANDARD OF OPERATION. Licensee shall operate and
maintain the Local Service in a manner which is consistent with the quality
standards of Tripod and which meets or exceeds the response performance
standards of the Tripod Service.
9.5 TRIPOD APPROVAL OF SAMPLE MATERIALS. Tripod shall have
the right to approve, prior to distribution, samples of all hard copy
advertising and promotional materials developed by Licensee and using any of the
Licensed Marks. Licensee shall submit each such sample to Tripod for approval,
and, in the event Tripod fails to disapprove any such sample within fifteen (15)
days after submission, such sample shall be deemed approved.
9.6 NON-COMPETITION. For so long as this Agreement remains
in effect, Licensee shall not, directly or indirectly, alone or in combination
with others, purchase, establish, maintain, invest in or otherwise promote, or
agree to purchase, establish, maintain, invest in or otherwise promote, any
community web site service, except that the foregoing restriction shall not
apply to passive portfolio investments in an entity not in excess of five
percent (5%) of the total equity of such entity and, prior to any termination of
this Agreement, the foregoing restriction shall not apply to the Local Service.
9.7 PRIVACY POLICY. Licensee agrees to implement a privacy
policy consistent with that utilized by Tripod in connection with the Tripod
Service, with such modifications as may be required by applicable law.
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10. [A CONFIDENTIAL PORTION OF THE MATERIAL HAS OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
11. RIGHTS IN INTELLECTUAL PROPERTY.
11.1 RESERVATION OF RIGHTS. Except as otherwise expressly set
forth in Section 2.1, no right, title or interest in or to the Licensed
Software, the Licensed Technology, the Licensed Marks, the Licensed Property,
the Tripod Enhancements, the Local Service or the domain name
"www.tripod.co.kr," or in or to any other intellectual property, shall pass to
Licensee under this Agreement.
11.2 TRIPOD ENHANCEMENTS. All ownership and other rights in
and to the Tripod Enhancements shall vest in and inure to the benefit of Tripod.
Upon request, Licensee shall execute all such documents, including without
limitation documents of assignment, and take all such steps and render all such
assistance as may be necessary to assure to Tripod its rights under this Section
11.2.
11.3 JOINT ENHANCEMENTS. All ownership and other rights in and
to Joint Enhancements shall vest in and inure to the benefit of Tripod and
Licensee jointly. Each party shall have the right to use Joint Enhancements, but
neither party shall have the right to license Joint Enhancements without the
prior written consent of the other party.
11.4 LICENSEE ENHANCEMENTS. All ownership and other rights in
and to the Licensee Enhancements shall vest in and inure to the benefit of
Licensee. Licensee hereby grants to Tripod a royalty-free, non-exclusive,
worldwide (except for the Territory) license, with the right to sublicense, to
use the Licensee Enhancements in connection with the Tripod Service or
otherwise.
11.5 NO REGISTRATION. Licensee shall not, in the Territory or
in any other jurisdiction, make any registration or application with respect to
any patents, trademarks, service marks, copyrights or other intellectual
property owned or licensed by Tripod, including without limitation the Licensed
Marks and the Licensed Property, or, except as otherwise expressly
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contemplated in Section 3, with respect to any domain name which includes the
word "tripod," including without limitation the domain name "www.tripod.co.kr".
11.6 BENEFIT. All use of the Licensed Marks and Licensed
Property shall inure to the benefit of Tripod, or, as applicable, its licensors.
12. MARKING AND PROTECTION.
12.1 MARKING OF MATERIALS. Licensee shall include appropriate
patent, trademark and copyright markings and notations in the Local Service and
in all marketing, advertising, promotional and other materials which use or
refer to the Licensed Marks or the Licensed Property.
12.2 MARKING OF ENTRY SCREEN. The following statement shall
appear on the entry screen of the Local Service, in a font no smaller than the
font for the main text used in the Local Service and otherwise in such manner as
Tripod may specify to Licensee from time to time:
"(C)199__. Tripod, Inc. All Rights Reserved."
12.3 PROTECTION. Licensee shall at all times take such steps
to protect the rights of Tripod in and to the Licensed Marks, the Licensed
Property, the Licensed Software, the Licensed Technology, the Tripod
Enhancements and the Local Service as Licensee takes to protect its rights with
respect to its own intellectual property, and in any event shall use a
reasonable degree of care to protect such rights of Tripod.
13. WARRANTIES; DISCLAIMER; EXCLUSIVE REMEDY.
13.1 LIMITED WARRANTY. TRIPOD WARRANTS THAT THE LICENSED
SOFTWARE WILL FUNCTION IN SUBSTANTIALLY THE SAME MANNER AS THE TRIPOD SOFTWARE
FUNCTIONS WHEN USED WITH THE TRIPOD SERVICE, AND THAT THE LOCAL SERVICE USING
THE LICENSED SOFTWARE WILL HAVE SUBSTANTIALLY THE SAME APPEARANCE (ALLOWING FOR
DIFFERENCES ATTRIBUTABLE TO LANGUAGE, DIFFERENCES IN CONTENT AND LOCAL
CUSTOMIZATION) AS THE TRIPOD SERVICE USING THE TRIPOD SOFTWARE.
13.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION
13.1, TRIPOD MAKES NO WARRANTIES OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY WARRANTY
REGARDING THE ACCURACY OR CONTENT OF ANY INFORMATION OBTAINED BY USING THE
LICENSED SOFTWARE, ALL OF WHICH OTHER WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.
13.3 REMEDY. TRIPOD'S SOLE OBLIGATION AND LICENSEE'S SOLE
REMEDY UNDER THE LIMITED WARRANTY SET FORTH IN SECTION 13.1 IS THAT TRIPOD SHALL
USE REASONABLE COMMERCIAL EFFORTS TO CORRECT ANY
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PROBLEMS WITH THE LICENSED SOFTWARE WHICH PREVENT THE LICENSED SOFTWARE FROM
FUNCTIONING AS WARRANTED, OR WHICH CAUSE THE APPEARANCE OF THE LOCAL SERVICE TO
BE OTHER THAN AS WARRANTED.
13.4 EXCLUSIONS. THE LIMITED WARRANTY SET FORTH IN SECTION
13.1 SHALL CEASE TO APPLY IN THE EVENT LICENSEE MAKES ANY MODIFICATION TO THE
LICENSED SOFTWARE WITHOUT THE EXPRESS WRITTEN CONSENT OF TRIPOD.
13.5 WARRANTY PERIOD. THE LIMITED WARRANTY SET FORTH IN
SECTION 13.5 SHALL APPLY DURING THE SIXTY (60) DAY PERIOD COMMENCING FROM THE
DATE OF THE COMMERCIAL LAUNCH OF THE LOCAL SERVICE, AND SHALL APPLY DURING THE
SIXTY (60) DAY PERIOD COMMENCING FROM THE DATE ON WHICH THE TRANSFER OF
OPERATIONS CONTEMPLATED BY SECTION 6.3 IS COMPLETED. TRIPOD SHALL NOT HAVE ANY
OBLIGATION OR LIABILITY UNDER SUCH LIMITED WARRANTY, EXCEPT AS TO CLAIMS ARISING
DURING EITHER SIXTY (60) DAY PERIOD REFERRED TO ABOVE IN THIS SECTION 13.5 AND
AS TO WHICH TRIPOD HAS RECEIVED PROMPT WRITTEN NOTICE.
13.6 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION LOST PROFITS. LICENSEE AGREES THAT TRIPOD'S MAXIMUM LIABILITY TO
LICENSEE UNDER THIS AGREEMENT, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE SUM OF FIVE
HUNDRED THOUSAND U.S. DOLLARS (U.S.$ 500,000).
14. INFRINGEMENT.
14.1 INFRINGEMENT. In the event the use of the Licensed
Software by Licensee or any user of the Local Service is alleged or determined
to infringe on the rights of any third party, Tripod shall, at its own expense
and in its sole discretion, (a) procure for Licensee and users of the Local
Service the right to continue such use, (b) replace the Licensed Software with
non-infringing software or modify the Licensed Software to make it
non-infringing, or (c) if neither of the remedies described in (a) and (b) are
commercially reasonable, terminate this Agreement and accept the return of the
Licensed Software.
14.2 INDEMNIFICATION. Tripod shall defend (or settle),
indemnify and hold Licensee harmless from and against any claim, liability,
damage, cost or expense (including reasonable attorneys' fees) arising out of
any actual or alleged infringement by the Licensed Software on the rights of
third parties. In connection with any such defense (or settlement), Tripod shall
have the right, in its sole discretion, to select counsel of its own choosing.
Upon designation of such counsel by Tripod, Licensee may, in its sole discretion
and at its sole cost and expense, choose to be
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represented by its own counsel. In any event, Tripod and Licensee shall
cooperate in any such defense (or settlement).
14.3 LIMITATION. Tripod shall not have any obligation or
liability to Licensee under Section 14.1 or Section 14.2 with respect to any
Licensed Software which has been modified by Licensee without the express
written consent of Tripod, or with respect to any claim or matter as to which
Licensee fails to give written notice to Tripod within fifteen (15) days after
Licensee receives notice or otherwise becomes aware of such claim or matter.
14.4 DISCLAIMER. Tripod shall have no obligations or
liabilities under this Agreement with respect to any claims, liabilities,
damages, costs or expenses, by reason of actual or alleged infringement on the
rights of third parties or otherwise, which arise out of any use of the Licensed
Marks by Licensee or any users of the Local Service.
15. CONFIDENTIALITY.
15.1 CONFIDENTIALITY. For so long as this Agreement remains in
effect and for a period of three (3) years after any expiration or termination
of this Agreement, each party shall keep strictly confidential, and shall not
disclose, any confidential information of the other party received under or in
connection with this Agreement, including without limitation any information,
written or oral, relating to customers, costs, profits, markets, sales,
products, product development, key personnel, pricing policies, operational
methods, technology, know-how, technical processes, formulae or plans for future
development; provided, however, that confidential information shall not include,
and the disclosure restrictions of this Section 15.1 shall not apply to, any
information received from the other party which:
(a) was already known to the recipient at the time of
receipt;
(b) was at the time of receipt, or thereafter becomes,
freely and generally available to the public through
no wrongful act of the recipient;
(c) is rightfully received by the recipient from a third
party legally entitled to disclose such information
free of confidentiality restrictions;
(d) is disclosed by the recipient pursuant to the order
of any court or in connection with any legal
proceeding commenced by or against the recipient,
provided that prior to any such disclosure the
recipient shall give the other party a reasonable
opportunity to seek a protective order with respect
to any such disclosure; or
(e) is disclosed by the recipient, or any Affiliate of
the recipient, as required under any applicable
securities laws
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Upon the expiration or termination of this Agreement, each party shall either
destroy or return to the other party all memoranda, notes, records, reports and
other documents (including all copies thereof) containing any confidential
information of such other party and in such party's possession or under its
control at the time of such expiration or termination, and shall give written
certification of compliance with this paragraph to the other party.
15.2 PRESS RELEASES AND ANNOUNCEMENTS.. Neither party shall
issue any press releases or public announcements relating to this Agreement, the
transactions contemplated by this Agreement or the business of Licensee without
the prior written approval of the other party, which approval shall not be
unreasonably withheld or delayed, except that each party shall be permitted to
issue any press releases or publicity statements (whether or not approved by the
other party) to the extent required by any applicable securities laws, and
Tripod shall have the right to issue press releases and make public
announcements relating to its products, services and plans.
16. TERM AND TERMINATION.
16.1 TERM. The term of this Agreement shall commence from the
Effective Date and continue until the sooner of (a) the date on which the
parties hereto mutually agree to terminate this Agreement; (b) the date on which
this Agreement is terminated pursuant to the Joint Venture Agreement dated as of
March __, 1999 between Lycos, Inc. and Mirae Corporation, the provisions of
which for the termination of this Agreement are hereby agreed to by Tripod and
Licensee; (c) the date on which any bankruptcy or insolvency proceeding is
commenced by or against Licensee; (d) the date on which Licensee ceases to
transact business for a period of not less than thirty (30) consecutive days; or
(e) the date on which Licensee ceases its corporate existence (by dissolution or
otherwise).
16.2 TERMINATION FOR BREACH. Either party may terminate this
Agreement in the event the other party breaches this Agreement and such breach,
if susceptible of cure, remains uncured for thirty (30) days after such party
gives written notice of such breach to such other party.
16.3 EFFECT OF TERMINATION. The expiration or termination of
this Agreement shall not affect any payment obligations of either party to the
other accrued or otherwise existing as of the date of such expiration or
termination. Upon the expiration or termination of this Agreement for any
reason, all of the rights and licenses granted under Section 2.1 shall
terminate, and Licensee shall immediately (a) cease any use of the Licensed
Marks, the Licensed Property, the Licensed Software, the Licensed Technology and
the Tripod Enhancements, (b) either return to Tripod or destroy all embodiments
thereof, and (c) certify to Tripod in writing that Licensee has complied with
the requirements of clauses (a) and (b) of this Section 16.3.
16.4 SURVIVAL. The provisions of Sections 9.6, 11 and 15 shall
survive any expiration or termination of this Agreement.
17. MISCELLANEOUS.
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17.1 COSTS. Except as may be otherwise expressly provided in
this Agreement, each party shall bear its own costs and expenses in carrying out
its obligations under this Agreement.
17.2 LATE PAYMENTS. All amounts payable by either party to the
other party under this Agreement shall be due and payable within thirty (30)
days of the date of invoice. If any payment is not received within thirty (30)
days of the date of invoice, interest will be imposed on such amount from the
date due until paid in full at a rate of interest per annum equal to the rate
announced from time to time by the Chase Manhattan Bank as its prime or
reference rate, plus five percent (5%).
17.3 NOTICES. Any notice, request, demand, approval or consent
required or permitted under this Agreement shall be in writing and shall be
effective upon actual receipt when delivered by (a) registered mail, postage
prepaid, return receipt requested, (b) personal delivery, (c) an overnight
courier of recognized reputation (such as DHL or Federal Express), or (d)
transmission by facsimile (with confirmation by mail), in each case addressed as
follows:
If to Tripod: Tripod, Inc.
------------------------------------
------------------------------------
Attention: General Counsel
Telephone:
-------------------------
Facsimile:
--------------------------
With a copy to: Coudert Brothers
1055 West 7th Street, 20th Floor
Los Angeles, CA 90017
Attention: Richard G. Wallace
Telephone: (213) 688-9088
Facsimile: (213) 689-4467
If to Licensee: Lycos Korea, Inc.
c/o Mirae Corporation
#1309, Korea Stock Exchange,
Annex Bldg.,
33, Yoidodong, Youngdungpo-gu
Seoul, Korea 150-010
Attention: Kyung Dal Cho
Telephone: 82-2-783-0059
Facsimile: 82-2-783-0057
Either party may change its address or facsimile number for notice purposes by
notice given to the other party in accordance with this Section 17.3.
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17.4 ASSIGNMENT. Neither party's rights, duties or
responsibilities under this Agreement may be assigned, delegated or otherwise
transferred in any manner, without the prior written consent of the other party.
Notwithstanding the foregoing, no such consent shall be required in connection
with the assignment, delegation or other transfer of any such rights, duties or
responsibilities (a) by Tripod to an Affiliate, or (b) in connection with any
transaction, regardless of its form, in which all or substantially all of the
assets of Tripod are acquired.
17.5 ENTIRE AGREEMENT. This Agreement, including the exhibits
referred to herein, which are hereby incorporated in and made a part of this
Agreement, constitutes the entire contract between the parties with respect to
the subject matter covered by this Agreement. This Agreement supersedes all
previous letters of intent, agreements and understandings, if any, by and
between the parties with respect to the subject matter covered by this
Agreement. This Agreement may not be amended, changed or modified except by a
writing duly executed by the parties hereto.
17.6 SEVERABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable, invalid or void in any
respect, no other provision of this Agreement shall be affected thereby, all
other provisions of this Agreement shall nevertheless be carried into effect and
the parties shall amend this Agreement to modify the unenforceable, invalid or
void provision to give effect to the intentions of the parties to the extent
possible in a manner which is valid and enforceable.
17.7 REMEDIES AND WAIVERS. All rights and remedies of the
parties are separate and cumulative, and no one of them, whether exercised or
not, shall be deemed to be to the exclusion of or to limit or prejudice any
other rights or remedies which the parties may have. The parties shall not be
deemed to waive any of their rights or remedies under this Agreement, unless
such waiver is in writing and signed by the party to be bound. No delay or
omission on the part of either party in exercising any right or remedy shall
operate as a waiver of such right or remedy or any other right or remedy. A
waiver on any one occasion shall not be construed as a bar to or waiver of any
right or remedy on any future occasion.
17.8 ARBITRATION. In the event any dispute arises between the
parties with respect to any matter arising out of or relating to this Agreement
which cannot be amicably resolved, such dispute shall be submitted to the
International Chamber of Commerce for binding arbitration in accordance with the
commercial arbitration rules of the International Chamber of Commerce as then in
effect. The arbitration shall be conducted in the English language, and shall be
held in London, England. Any arbitration award rendered in any such arbitration
proceeding may be entered in and enforced by any court of competent
jurisdiction. Nothing contained in this Section 17.8 shall prevent or be
construed to prevent either party from seeking a temporary restraining order or
a preliminary or permanent injunction or any other form of interim, provisional
or equitable relief in any court of competent jurisdiction.
17.9 GOVERNING LAW. This Agreement shall be governed by, and
interpreted in accordance with, the laws (other than that body of law relating
to conflicts of law) of Massachusetts,
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United States of America. Licensee hereby consents to the non-exclusive
jurisdiction of the federal and state courts located in Massachusetts, United
States of America, and waives all objections to the laying of venue in
Massachusetts, including without limitation any objection based on inconvenient
forum. Licensee further consents to the service of process by mail or by any
other means permitted by Massachusetts law.
17.10 ATTORNEYS' FEES. In the event any action or proceeding
is initiated for any breach of or default in any of the terms or conditions of
this Agreement, then the party in whose favor judgment shall be entered or an
arbitration award shall be made, shall be entitled to have and recover from the
other party all costs and expenses (including attorneys' fees) incurred in such
action or proceeding and any appeal therefrom.
17.11 HEADINGS. The headings contained in this Agreement are
for convenience only and are not a part of this Agreement, and do not in any way
interpret, limit or amplify the scope, extent or intent of this Agreement, or
any of the provisions of this Agreement.
17.12 COUNTERPARTS AND FACSIMILE. This Agreement may be
executed in counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same agreement. Transmission of
facsimile copies of signed original signature pages of this Agreement shall have
the same effect as delivery of the signed originals.
17.13 TRANSLATION. For the convenience of the parties, one or
more Korean translations of this Agreement may be prepared. Notwithstanding the
preparation or existence of any such Korean translations, the English language
version of this Agreement shall be controlling.
17.14 THIRD PARTY BENEFICIARY. This Agreement is not intended
to and does not confer any rights on any third party, and no such third party
shall be a third party beneficiary under or in respect of this Agreement.
17.15 BINDING EFFECT. Subject to Section 17.4, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TRIPOD, INC.,
a corporation organized under the laws of
Delaware, USA
By:
-----------------------------------------
Its:
----------------------------------------
LYCOS KOREA, INC.
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a CHUSIK HOESA organized under the laws of
the Republic of Korea
By:
-----------------------------------------
Its:
----------------------------------------
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EXHIBITS
Exhibit A: Tripod Software
Exhibit B: Licensed Marks and Licensed Property
EXHIBIT A
Tripod Software
---------------
1. Tripod Web server extensions and customizations, including advertising
support code (to the extent owned exclusively by Lycos).
2. Tripod Homepage Builder and Homepage Studio.
3. Tripod Authentication Server.
4. Tripod Counter Server.
5. Tripod FTP Server.
6. Pod Software and Pod Administration Tools.
7. Membership Registration, Log-in, Change Member Data.
8. Tripod Guestbook, Mailto, Tripod Chat, Tripod Message Boards.
9. Perl Object Hierarchy.
10. Membership Tools.
The Tripod Software does not include any third-party software or technology
utilized by Tripod in connection with the Tripod Services to the extent that
Tripod does not have the right to sublicense such third-party software or
technology on a royalty-free basis.
EXHIBIT B
Licensed Marks
--------------
1. Lycos name and logo.
2. WiseWire name and logo.
Licensed Property
-----------------
Patents--None
EXHIBIT 10.28
EXHIBIT C
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT is made and entered into as of __________,
1999 by and between LYCOS, INC. ("Lycos"), a corporation organized under the
laws of the State of Delaware, United States of America, and MIRAE CORPORATION,
a CHUSIK HOESA organized under the laws of the Republic of Korea ("Mirae").
Lycos and Mirae are sometimes referred to individually herein as a "Shareholder"
and collectively as the"Shareholders."
RECITALS
A. The Shareholders are parties to a Joint Venture Agreement dated as
of March __, 1999 (the "Joint Venture Agreement") relating to the establishment
of Lycos Korea, Inc., a CHUSIK HOESA organized under the laws of the Republic of
Korea (the "Company").
B. [***]
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. VOTING AND MANAGEMENT.
1.1 ELECTION OF DIRECTORS AND STATUTORY AUDITOR. Each
Shareholder hereby agrees that, for so long as this Agreement is in effect, such
Shareholder shall vote (or cause to be voted) the shares of Stock owned
beneficially or of record by such Shareholder and take all other actions
necessary to insure that one half of the directors of the Company shall be as
designated by Lycos and one half of the directors of the Company shall be as
designated by Mirae, the Representative Director of the Company shall be as
designated by Mirae and the Statutory Auditor of the Company shall be as
designated by Lycos.
1.2 REMOVAL. Any director elected as a Lycos designee may only
be removed with the consent of Lycos, any director (including the Representative
Director) elected as a Mirae designee may be only be removed with the consent of
Mirae, and the Statutory Auditor may only be removed with the consent of Lycos.
1.3 VOTING REQUIREMENTS. Except as may be otherwise provided
in the Articles of Incorporation of the Company or required by applicable law,
and subject to Section 1.4, the required vote for any approval by the
shareholders of the Company shall be a majority of the shares represented and
entitled to vote at a duly constituted meeting of shareholders at which a quorum
is present, and the required vote for any approval by the board of directors of
the Company shall be a majority of the directors present at a duly constituted
meeting of the board of directors at which a quorum is present.
*** A CONFIDENTIAL PORTION OF THE MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
1.4 MAJOR MATTERS. Notwithstanding Section 1.3, any provision
of the Articles of Incorporation of the Company, or any provision of applicable
law, the parties agree that all of the following matters shall require the
written approval of both Lycos and Mirae, which approval may be evidenced by
unanimous approval of the board of directors of the Company or in any other
manner:
(a) amendment or repeal of the Articles of Incorporation;
(b) liquidation, winding-up, dissolution or commencement
of any bankruptcy or other similar proceeding;
(c) merger, consolidation, reorganization,
recapitalization, and the like;
(d) sale of all or substantially all of the assets of the
Company, or the sale of any assets individually or in the aggregate exceeding
75,000,000 in amount;
(e) issuance, redemption, repurchase or retirement of any
securities (including any option, warrant or right to acquire any securities or
any instrument convertible into securities);
(f) increase or decrease of authorized capital;
(g) approval of annual financial statements;
(h) approval of annual business plan (including annual
budget and marketing plans, distribution plans and pricing policies), and any
major modifications to or departures from the approved annual business plan;
(i) declaration of dividends;
(j) acquisition or disposition of an interest in any other
corporation or entity, including the incorporation of any subsidiary;
(k) guaranty of third party indebtedness;
(l) the borrowing of any funds, except for any funds
advanced to the Company by Mirae pursuant to Section 4 of the Joint Venture
Agreement or the loan agreement executed pursuant thereto (the "Loan
Agreement"), and except for any funds borrowed in the ordinary course of
business and individually or in the aggregate not exceeding 75,000,000;
(m) the sale, transfer (other than by sublicense as
permitted under the License Agreement), or encumbrance of any interest in
intellectual property rights, and the selection
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or designation of sublicensees to which sublicenses will be granted pursuant to
the License Agreement;
(n) any changes or modifications by the Company of or to
any of the technology licensed to the Company by Lycos, except as expressly
permitted by and made in accordance with the License Agreement;
(o) any material transaction between the Company and any
of its shareholders (other than pursuant to the License Agreement or the Loan
Agreement);
(p) any material transaction by which the Company incurs
or undertakes any financial obligation in excess of 75,000,000; or
(q) removal of the President, any Vice President, any
Treasurer or Finance Director, or any Senior Manager.
1.5 APPLICABLE LEGAL REQUIREMENTS. Nothing contained in
Section 1.4 relieves the Company or the Shareholders from compliance with
applicable law as to requirements for shareholder or board approvals with
respect to any of the matters set forth in Section 1.4.
1.6 VOTING. The Shareholders shall exercise their voting
rights and powers as shareholders of the Company, and shall otherwise cooperate,
to fully effect the purposes and implement the provisions of this Agreement.
1.7 MINUTES OF DIRECTORS MEETINGS. Minutes of meetings of the
Board of Directors of the Company, including records of all resolutions adopted
and all actions taken by the Board of Directors of the Company, shall be
prepared in both Korean and English, and, as between the parties to this
Agreement, in the event of any inconsistency between the Korean version and the
English version of such minutes and records, the English version of such minutes
and records shall prevail and be given effect.
1.8 MINUTES OF SHAREHOLDERS MEETINGS. Minutes of meetings of
the shareholders of the Company, including records of all resolutions adopted
and all actions taken by the shareholders of the Company, shall be prepared in
both Korean and English, and, as between the parties to this Agreement, in the
event of any inconsistency between the Korean version and the English version of
such minutes and records, the English version of such minutes and records shall
prevail and be given effect.
2. RESTRICTIONS ON TRANSFER. Neither Shareholder may voluntarily
transfer, sell, assign, pledge, hypothecate, encumber or otherwise dispose of
any or all of the Stock now owned or hereafter acquired by such Shareholder
without the approval of the Board of Directors of the Company with respect to
the identity of the transferee as required by the Articles of Incorporation
-3-
of the Company. Any offer to transfer, or any attempted or purported
transfer, of any Stock in violation of this Section 2 shall be null and void.
3. TRANSFERS SUBJECT TO RIGHT OF FIRST REFUSAL.
3.1 GENERAL. Except as otherwise provided in Section 3.7, any
transfer, sale, assignment or other disposition (collectively, a "Transfer") of
any Stock by a Shareholder shall be subject to the rights of first refusal set
forth in this Section 3.
3.2 NOTICE AND OFFER TO SELL. In the event a Shareholder (the
"Offering Shareholder") desires to make a Transfer of all or any portion of the
Offering Shareholder's Stock, the Offering Shareholder shall give to the other
Shareholder (the "Offeree Shareholder") a written notice ("Offeror Notice") of
the Offering Shareholder's intention to make such Transfer, which Offeror Notice
shall set forth all of the terms and conditions of the proposed Transfer,
including without limitation (a) the name, identity and address of the proposed
transferee (the "Proposed Transferee"), (b) the number of shares of Stock to be
Transferred (the "Offered Shares") and (c) the consideration for the Transfer.
The Offeror Notice shall contain an offer to make a Transfer of the Offered
Shares to the Offeree Shareholder on the terms and conditions of the proposed
Transfer described in the Offeror Notice and in accordance with the terms and
conditions of this Agreement.
3.3 OFFEREE NOTICE. Within thirty (30) days after the Offeror
Notice is duly given, the Offeree Shareholder shall give written notice
("Offeree Notice") to the Offering Shareholder specifying whether the Offeree
Shareholder wishes to acquire all (but not less than all) of the Offered Shares
upon the terms and conditions of the proposed Transfer set forth in the Offeror
Notice. For the purpose of this Section 3.3, if the Offeree Shareholder does not
deliver an Offeree Notice within the time required by this Section 3.3, or
delivers an Offeree Notice specifying a desire to purchase less than all of the
Offered Shares, the Offeree Shareholder shall be deemed to have provided an
Offeree Notice on the last day on which an Offeree Notice may be provided
specifying no interest in acquiring any of the Offered Shares.
3.4 TRANSFER BY OFFERING SHAREHOLDER. Unless an Offeree Notice
specifying a desire to purchase all of the Offered Shares is timely received,
then, subject to Section 3.6 below, the Offering Shareholder shall be permitted,
for a period of thirty (30) days from receipt of the Offeree Notice, to make a
Transfer of all such Offered Shares to the Proposed Transferee on the terms and
conditions set forth in the Offeror Notice. If the Offering Shareholder does not
make such Transfer of the Offered Shares within such thirty (30) day period,
then any subsequent proposed Transfer of the Offered Shares shall again be
subject to all of the terms and provisions of this Section 3.
3.5 ACQUISITION AND TRANSFER. The closing of any acquisition
of Offered Shares by any Shareholder under this Agreement shall take place,
notwithstanding any contrary provisions in an Offeror's Notice, within thirty
(30) days from receipt of the Offeree Notice, unless another date is mutually
agreed upon by the parties participating in the closing. At the closing of any
Transfer
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of Offered Shares under this Section 3.5, the Offering Shareholder shall deliver
to the Offeree Shareholder, a certificate or certificates representing the
Offered Shares being acquired, duly endorsed, or accompanied by assignments
separate from certificate, and in proper form and order for transfer, against
receipt of the consideration, and the Offeree Shareholder shall take all
actions, including, without limitation, the filing of reports with any
governmental authority, and execute and deliver to the Offering Shareholder all
instruments and documents, as may be necessary or desirable to consummate the
acquisition and Transfer of the Offered Shares in compliance with all applicable
laws and regulations.
3.6 OBLIGATIONS OF TRANSFEREES. Each transferee and each
subsequent transferee of any shares of Stock, or of any interest in such shares
of Stock, shall hold such shares of Stock or interest therein subject to all of
the provisions of this Agreement, and such transferee shall, to evidence such
transferee's intention and agreement to assume all of the obligations of the
transferor under this Agreement and to be bound by all of the provisions of this
Agreement, execute the original or a counterpart of this Agreement upon
acquisition of such shares of Stock or any interest therein and deliver the
original or a counterpart of this Agreement to the Company.
3.7 TRANSFERS TO AFFILIATES. The provisions of this Section 3
(other than Section 3.6) shall not apply to any Transfer of shares of Stock by a
Shareholder to any corporation which directly or indirectly controls, is
controlled by or is under common control with such Shareholder, where such
control is exercised through ownership of more than fifty percent (50%) of the
relevant voting power.
3.8 OBLIGATIONS OF COMPANY. The Company shall not be required
(a) to transfer on its books any shares of Stock that have been sold or
otherwise transferred in violation of any of the provisions of this Agreement,
or (b) to treat any purported transferee of such shares of Stock as the owner
thereof or to accord to such purported transferee the right to vote such shares
of Stock as the holder thereof or to receive dividends thereon.
4. REPRESENTATIONS AND WARRANTIES. Each Shareholder represents and
warrants to the other Shareholder that (a) such Shareholder has taken all
requisite corporate action to authorize and approve the execution, delivery and
performance of this Agreement by such Shareholder, (b) this Agreement has been
duly executed and delivered by such Shareholder, and constitutes the legal,
valid and binding obligations of such Shareholder, enforceable against such
Shareholder in accordance with its terms, and (c) the execution, delivery and
performance of this Agreement by such Shareholder will not (i) violate any
provision of the charter documents of such Shareholder, (ii) violate, conflict
with or result in (or with notice or lapse of time or both result in) a breach
of or default under any term or provision of any contract or agreement to which
such Shareholder is a party or by which such Shareholder or any of its assets or
properties is or may be bound, or (iii) violate any order, judgment, injunction,
award or decree of any court or arbitration body, or any governmental,
administrative or regulatory authority, by which such Shareholder or any of its
assets or properties is or may be bound.
-5-
5. TERMINATION. This Agreement shall terminate upon the occurrence of
any of the following events:
(a) the voluntary written agreement of all of the
Shareholders (or, as applicable, their successors in interest) to terminate this
Agreement;
(b) the dissolution, bankruptcy or insolvency of the
Company;
(c) the sale of all or substantially all of the Company's
assets other than in the ordinary course of business;
(d) the acquisition of the Company by another entity by
means of merger or consolidation resulting in the exchange of any Stock for
securities issued, or caused to be issued, by the acquiring entity;
(e) termination pursuant to the applicable provisions of
the Joint Venture Agreement; or
(f) at such time as only one Shareholder remains.
6. MISCELLANEOUS.
6.1 EFFECTIVE DATE. This Agreement shall be effective as of
the date hereof.
6.2 NOTICES. Any notice, request, demand, approval or consent
required or permitted under this Agreement shall be in writing and shall be
effective upon actual receipt when delivered by (a) registered mail, postage
prepaid, return receipt requested, (b) personal delivery, (c) an overnight
courier of recognized reputation (such as DHL or Federal Express), or (d)
transmission by facsimile (with confirmation by mail), in each case addressed as
follows:
If to Lycos: Lycos, Inc.
400-2 Totten Pond Road
Waltham, MA 02154
Attention: General Counsel
Telephone: (781) 370-2700
Facsimile: (781) 370-2600
With a copy to: Coudert Brothers
1055 West 7th Street, 20th Floor
Los Angeles, CA 90017
Attention: Richard G. Wallace
Telephone: (213) 688-9088
Facsimile: (213) 689-4467
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If to Mirae: Mirae Corporation
#1309, Korea Stock Exchange, Annex Bldg.,
33, Yoidodong, Youngdungpo-gu
Seoul, Korea 150-010
Attention: Kyung Dal Cho
Telephone: 82-2-783-0059
Facsimile: 82-2-783-0057
Either party may change its address or facsimile number for notice purposes by
notice given to the other party in accordance with this Section 6.2.
6.3 ASSIGNMENT. No party's rights, duties or responsibilities
under this Agreement may be assigned, delegated or otherwise transferred in any
manner, without the prior written consent of the other parties, except that no
such consent shall be required in connection with the assignment, delegation or
other transfer of any such rights, duties or responsibilities by a party to any
affiliate which directly or indirectly controls, is controlled by or is under
common control with such party, where such control is by more than 50% of the
relevant voting power.
6.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
contract between the parties with respect to the subject matter covered by this
Agreement. This Agreement supersedes all previous representations, arrangements,
agreements and understandings, if any, by and among the parties with respect to
the subject matter covered by this Agreement. This Agreement may not be amended,
changed or modified except by a writing duly executed by the parties hereto.
6.5 SEVERABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable, invalid or void in any
respect, no other provision of this Agreement shall be affected thereby, all
other provisions of this Agreement shall nevertheless be carried into effect and
the parties shall amend this Agreement to modify the unenforceable, invalid or
void provision to give effect to the intentions of the parties to the extent
possible in a manner which is valid and enforceable.
6.6 SPECIFIC PERFORMANCE. Each party hereto may obtain
specific performance to enforce its rights hereunder and each party acknowledges
that failure to fulfill such party's obligation to the other parties hereto
would result in irreparable harm.
6.7 REMEDIES AND WAIVERS. All rights and remedies of the
parties are separate and cumulative, and no one of them, whether exercised or
not, shall be deemed to be to the exclusion of or to limit or prejudice any
other rights or remedies which the parties may have. The parties shall not be
deemed to waive any of their rights or remedies under this Agreement, unless
such waiver is in writing and signed by the party to be bound. No delay or
omission on the part of either party in exercising any right or remedy shall
operate as a waiver of such right or remedy or any other right or remedy. A
waiver on any one occasion shall not be construed as a bar to or waiver of any
right or remedy on any future occasion.
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6.8 ARBITRATION. In the event any dispute arises among the
parties, or any of them, which cannot be amicably resolved, such dispute shall
be submitted to the International Chamber of Commerce for binding arbitration in
accordance with the commercial arbitration rules of the International Chamber of
Commerce as then in effect. The arbitration shall be conducted in the English
language, and shall be held in London, England. Any arbitration award rendered
in any such arbitration proceeding may be entered in and enforced by any court
of competent jurisdiction. Nothing contained in this Section 6.8 shall prevent
or be construed to prevent either party from seeking a temporary restraining
order or a preliminary or permanent injunction or any other form of interim,
provisional or equitable relief in any court of competent jurisdiction.
6.9 GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement
shall be governed by, and interpreted in accordance with, the laws (other than
that body of law relating to conflicts of law) of the Republic of Korea. Mirae
hereby consents to the non-exclusive jurisdiction of the federal and state
courts located in Massachusetts, United States of America, and waives all
objections to the laying of venue in Massachusetts, including without limitation
any objection based on inconvenient forum. Mirae further consents to the service
of process by mail or by any other means permitted by Massachusetts law.
6.10 ATTORNEYS' FEES. In the event any action or proceeding is
initiated for any breach of or default in any of the terms or conditions of this
Agreement, then the party or parties in whose favor judgment shall be entered or
an arbitration award shall be made, shall be entitled to have and recover from
the other parties all costs and expenses (including attorneys' fees) incurred in
such action or proceeding and any appeal therefrom.
6.11 HEADINGS. The headings contained in this Agreement are
for convenience only and are not a part of this Agreement, and do not in any way
interpret, limit or amplify the scope, extent or intent of this Agreement, or
any of the provisions of this Agreement.
6.12 COUNTERPARTS AND FACSIMILE. This Agreement may be
executed in counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same agreement. Transmission of
facsimile copies of signed original signature pages of this Agreement shall have
the same effect as delivery of the signed originals.
6.13 TRANSLATION. For the convenience of the parties, one or
more Korean translations of this Agreement may be prepared. Notwithstanding the
preparation or existence of any such Korean translations, the English language
version of this Agreement shall be controlling.
6.14 THIRD PARTY BENEFICIARY. This Agreement is not intended
to and does not confer any rights on any third party, and no third party shall
be a third party beneficiary under or in respect of this Agreement.
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6.15 BINDING EFFECT. Subject to Section 6.3, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LYCOS, INC.,
a corporation organized under the laws of
Delaware, USA
By:
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Its:
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MIRAE CORPORATION,
a CHUSIK HOESA organized under the laws of
the Republic of Korea
By:
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Its:
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EXHIBIT D
[***]
*** A CONFIDENTIAL PORTION OF THE MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT E
ADVERTISING RATES AND TERMS
The advertising rates and terms are to be agreed upon by Lycos and Mirae
Corp. and will be attached to this Exhibit E.
Joint Venture Agreement - Lycos Inc. and Mirae Corp.
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