{"id":41996,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/advertising-and-promotion-agreement-cbs-corp-and-medscape-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"advertising-and-promotion-agreement-cbs-corp-and-medscape-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/advertising-and-promotion-agreement-cbs-corp-and-medscape-inc.html","title":{"rendered":"Advertising and Promotion Agreement &#8211; CBS Corp. and Medscape Inc."},"content":{"rendered":"<pre>\n                       ADVERTISING AND PROMOTION AGREEMENT\n\n\n                  AGREEMENT made as of the 4th day of July, 1999 (the \"Effective\nDate\"), by and among CBS Corporation, 51 West 52nd Street, New York, New York\n10019 (herein called \"CBS\") and Medscape, Inc., 134 West 29th Street, New York,\nNew York 10001 (herein called \"Medscape\"). The term \"CBS\" shall not include\nWestwood One, Inc.\n\n1.       GENERAL DEFINITIONS\n\n         1.1 \"Affiliate\" of the Person concerned shall mean a Person that\ndirectly or indirectly (through one or more intermediaries) controls, is\ncontrolled by, or is under common control with such Person concerned.\n\n         1.2 \"Billboard Ad\" shall mean advertising placed on various vehicles or\nfacilities, including, without limitation, advertising space: (i) on traditional\nbillboards or electronic signs of various ranging sizes, and (ii) on or in\nbusses, commuter rails, subways, stations and terminals, transport shelters and\ntelephone kiosks, so long as such advertising space is owned or controlled by\nCBS.\n\n         1.3 \"CBS Competitor\" shall mean any Person, other than CBS, who\/which\nis engaged either directly, or indirectly through an Affiliate, in radio or\ntelevision programming or radio or television program distribution (whether free\nover-the-air, cable, telephone, local, microwave, direct broadcast satellite,\nvia Internet or otherwise) or billboard advertising in North America. A CBS\nCompetitor shall not include any Person engaged, via an Internet Web Site, in\ntelevision or radio program transmission or streaming, (the \"Internet Concern\"),\nunless such Internet Concern: (i) owns or controls, is owned or controlled by,\nor is under common control with, a CBS Competitor; or (ii) prominently features,\ntransmits or promotes Content of a CBS Competitor.\n\n         1.4 \"Collaboration Agreement\" shall mean any one of the following\nagreements between CBS and Medscape: (a) this Agreement; (b) the Trademark and\nContent Agreement dated as of the Effective Date (the \"Trademark and Content\nAgreement\"); (c) the Stockholders Agreement dated as of the Effective Date; (d)\nthe Common Stock Purchase Agreement dated as of the Effective Date; and (e) the\nRegistration Rights Agreement dated as of the Effective Date.\n\n         1.5 \"Common Stock\" shall mean the common stock, $.01 par value per\nshare, of Medscape.\n\n         1.6 \"Consumer Health Site\" shall mean the Internet Web Site owned by\nMedscape that provides healthcare news and healthcare information for consumers.\n\n         1.7 \"Content\" shall mean text, graphics, photographs, video, audio\nand\/or other data or information (including, without limitation, any of the\nforegoing broadcast on television) relating to any subject and\/or\nadvertisements.\n\n                                     - 1 -\n\n         1.8 \"Contract Year\" shall mean the annual period beginning on the\nEffective Date, and each subsequent annual period during the Term beginning on\nthe anniversary of the Effective Date (as such annual period may be suspended or\nextended, and those dates postponed, upon mutual agreement of the parties).\n\n         1.10 \"Internet\" shall mean a global network of interconnected computer\nnetworks, each using the Transmission Control Protocol\/Internet Protocol and\/or\nsuch other standard network interconnection protocols as may be adopted from\ntime to time, which is used to transmit Content that is directly of indirectly\ndelivered to a computer or other digital electronic device for display to an\nend-user, whether such Content is delivered through on-line browsers, off-line\nbrowsers, or through \"push\" technology, electronic mail, broadband distribution,\nsatellite, wireless or otherwise.\n\n         1.11 \"Internet Site\" or \"Web Site\" shall mean any site or service\ndelivering Content on or through the Internet, including, without limitation,\nany on-line service such as America Online and Compuserve.\n\n         1.12 \"New Mark\" shall mean a word or words designated by the parties\nfor use as a new trademark and as part of a URL for the Consumer Health Site\nwhich shall be subject to the mutual agreement of the parties.\n\n         1.13 \"New Mark Brand(s)\" shall mean collectively, the New Mark, the New\nMark URL and any other URL that includes the New Mark and is used for\nidentifying the Consumer Health Site.\n\n         1.14 \"New Mark URL\" shall mean the New Mark followed by the extension\n\".com\".\n\n         1.15 \"Person\" shall mean individual, partnership, corporation or\norganized group of persons, including agencies and other instrumentalities of\ngovernments and states.\n\n         1.16 \"Professional Health Site\" shall mean the Internet Web Site owned\nby Medscape that provides healthcare news and healthcare information primarily\nfor physicians and allied healthcare professionals that is currently located at\nthe URL www.medscape.com.\n\n         1.17 \"Term\" shall mean the term specified in Section 3.1 below and any\nextensions agreed to by the parties hereto.\n\n         1.18 \"URL Scroll\" shall mean the exhibition of a written representation\nof a URL in or during (i.e., at any time from the opening frame through end of\nthe closing credits) a television program (the \"Television URL Scroll\") or in\/on\nan Internet Web Site page (the \"Internet URL Scroll\"). For avoidance of doubt,\nthe Television URL Scroll and the Internet URL Scroll are hereinafter\ncollectively referred to as the \"URL Scroll\".\n\n\n2.       CBS ADVERTISING AND PROMOTION\n\n         2.1 (a) CBS shall arrange for the placement of advertising and\npromotion in the United States of the Consumer Health Site, the Professional\nHealth Site and Medscape's other \n\n                                     - 2 -\n\nproducts and services in the media category or type set forth in the Advertising\nand Promotion placement roster set forth on Exhibit A attached hereto, with an\naggregate value of $150 million. During the first Contract Year, CBS shall\narrange for the placement of advertising in accordance with the advertising plan\nin Exhibit B attached hereto. CBS will consult with Medscape with respect to the\nmedia category and type of placement. CBS and Medscape will cooperate to\nendeavor to implement the advertising and promotional goals set forth in the\nannual media plan presented to CBS by Medscape. The media plan for each Contract\nYear shall be consistent with the media plans of prior Contract Years, except\nthat the advertising dollar amounts for the Contract Year concerned and the\nallocation of advertisements during the contract year concerned shall be\nmutually agreed upon by the parties. All advertising and promotional materials\nshall be subject to the applicable CBS Network Advertising Guidelines and\nstandard CBS preemption policies. CBS shall not have to make any ad placements\nif the exigencies of time or current or future contractual obligations entered\ninto prior to the time Medscape requests such advertising, prevent or restrict\nCBS from doing so.\n\n                  (b) The value of all broadcast advertising and promotion\nprovided hereunder shall be based upon the average unit price paid by any\nunaffiliated third party, excluding barter, for spots (other than political\nspots) purchased during the specific CBS Television Network, CBS Radio Network,\nCBS Owned and Operated Television Station, CBS Owned and Operated Radio Station,\nor CBS Cable broadcast in which the advertising or promotion occurs. The value\nof banner advertising on CBS Internet sites shall be based upon the average\nprice paid (excluding barter) by unaffiliated third parties for banner\nadvertising of similar size and placement during a similar period. The value of\nthe Billboard Ad concerned shall be based upon the average price paid or\npayable, excluding barter, for any similar Billboard Ad(s) during the month\nprior to the month in which such Billboard Ad is delivered. Medscape will be\ntreated as a cash-paying customer in a like manner to other cash customers of\nsimilar volume. The following advertisements shall not be offset against the\n$150 million of advertising hereunder: any on-air mention or URL Scroll by a\nCBS-affiliated (television or radio) station of the URL for the Consumer Health\nSite, the New Mark URL or the Identifying URL (as such term is defined in the\nTrademark and Content Agreement) on Medscape Programming (as such term is\ndefined in the Trademark and Content Agreement) obtained by such CBS-affiliated\nstation from the CBS Newspath feed or equivalent radio feed (other than a\nbroadcast of the CBS Radio Network). (For avoidance of doubt, \"CBS-affiliated\nstation\" is a television or radio station which is not owned and operated by\nCBS.)\n\n                  (c) CBS will provide to Medscape calendar quarterly\nstatements, or, if available, monthly statements showing the (i) value\nattributable to each of the media categories and types with respect to the\nadvertising and promotions purchased by Medscape during the statement period and\n(ii) the calculation of the aggregate value of advertising purchased.\n\n         2.2 (a) CBS will maintain accurate books and records which report the\nexpenditure of the advertising and promotional value by Medscape and information\nfrom which the calculation can be derived. Medscape may, at its own expense,\nexamine those books and records, as provided in this Section 2.2. Medscape may\nmake such an examination for a particular statement provided pursuant to Section\n2.1(c) only once and such examination must occur within three (3) years after\nthe date such statement is sent by CBS to Medscape. (CBS will be deemed\nconclusively to have sent Medscape the statement concerned at the time\nprescribed in \n\n\n\n                                     - 3 -\n\n\nSection 2.1(c), unless Medscape notifies CBS otherwise with respect to any\nstatement within thirty (30) days after that designated time.) Medscape may make\nthose examinations only during CBS's usual business hours, and at the address\nset forth herein for the provision of notices to CBS, unless otherwise notified.\nMedscape will be required to notify CBS at least ten (10) days before the date\nof planned examination. If Medscape's examination has not been completed within\ntwo (2) months from the time Medscape begins it, CBS may require Medscape to\nterminate it on seven (7) days notice to Medscape at any time.\n\n                  (b) If any examination of CBS's books and records discloses\n         that:\n\n                           (i) CBS has failed to properly account for\n         advertising and promotions purchased by Medscape hereunder, then CBS\n         will make appropriate adjustment(s) to the cumulative total purchased\n         by Medscape.\n\n                           (ii) CBS has overstated the value of advertising\n         purchased by more than 7.5%, then CBS shall reimburse Medscape for its\n         direct out-of-pocket expenses incurred in identifying such material\n         overstatement.\n\n         2.3      CBS shall have the right:\n\n                  (a) to suspend and\/or withdraw placement of all advertising\nand promotion that includes the MEDSCAPE trademark: (i) pending resolution of\nany third party claim covering infringement of such third party's rights because\nof use by Medscape in the United States of the tradename or trademark \"Medscape\"\neither alone or in combination with any other mark and\/or (ii) during such time\nas Medscape is enjoined from using the tradename or trademark \"Medscape\" in the\nUnited States on or in connection with the Consumer Health Site and has not\nrenamed the Consumer Health Site. Medscape shall rename the Consumer Health Site\nwithin thirty (30) days following the issuance of any injunction or the\nresolution of any claim which requires Medscape to cease using the tradename or\ntrademark \"Medscape\" in the United States on or in connection with the Consumer\nHealth Site, it being understood, however, that CBS shall have the sole right\nand power to approve the substitute tradename and\/or trademark to be used. In\nthe event that CBS fails to approve the substitute tradename and\/or trademark\nwithin the thirty-day period, CBS shall submit a tradename proposal with three\n(3) alternate tradenames which appear to be available for Medscape's use on the\nConsumer Health Site in the United States based on trademark searches conducted\nby CBS, for Medscape's approval, which approval is to be given within ten (10)\ndays of such submission. For avoidance of doubt, CBS does not and will not make\nany representation or warranty with respect to the availability of any alternate\nname provided to Medscape by CBS for use on the Consumer Health Site.\nMedscape shall thereafter promptly apply for registration of such trademark.\n\n                  (b) if the New Mark is being used as the principal name or\npart of the principal name of the Consumer Health Site, to suspend and\/or\nwithdraw placement of all the advertising and promotion of the Consumer Health\nSite: (i) upon CBS's decision to cease use of the New Mark in connection with\nany third party claim covering infringement of such third party's rights because\nof use by Medscape in the United States of the New Mark either alone or in\ncombination with any other mark and\/or (ii) during such time as Medscape is\nenjoined from using the New Mark in the United States on or in connection with\nthe Consumer Health Site and has not renamed the Consumer Health Site. Medscape\nshall rename the Consumer Health Site \n\n                                     - 4 -\n\nCBS Medscape within ten (10) days following CBS's notice of its decision to\ncease use of the New Mark, the issuance of any injunction or the resolution of\nany claim which requires Medscape to cease using the New Mark in the United\nStates on or in connection with the Consumer Health Site. Upon Medscape's\nrenaming the Consumer Health Site, the placement of advertising for the Consumer\nHealth Site shall resume using the new name. Medscape will not seek (i)\nreimbursement or payment for advertising and promotion time used or (ii) payment\nof any of Medscape's conversion costs, in the event that CBS suspends and\/or\nwithdraws placement of advertising and promotion of the Consumer Health Site\nhereunder.\n\n         2.4 CBS and Medscape shall mutually agree on (i) procedures to maximize\njoint selling opportunities between Medscape's and CBS's respective ad sales\nforces, and (ii) commissions payable with respect to such selling.\n\n\n3.       TERM\n\n         3.1 The term of this Agreement shall begin as of the date hereof and\nshall continue in full force and effect for a period of seven (7) consecutive\nyears from the Effective Date unless it is terminated earlier in accordance with\nthe terms and conditions stated herein.\n\n         3.2 The parties shall negotiate exclusively with each other in good\nfaith for a period of twelve (12) consecutive months (the \"Negotiation Period\")\nwith respect to any extension(s) of the term of this Agreement commencing on the\nfifth anniversary of the Effective Date (i.e., July 4, 2004).\n\n\n4.       WARRANTIES, REPRESENTATIONS AND COVENANTS\n\n         4.1      (a)      CBS REPRESENTS AND WARRANTS THAT:\n\n                           (i) it has full power and authority to enter into and\n         fully perform this Agreement; and\n\n                           (ii) this Agreement has been duly authorized and is\n         enforceable in accordance with its terms.\n\n                  (b)      MEDSCAPE REPRESENTS AND WARRANTS THAT:\n\n                           (i) it has full power and authority to enter into and\n         fully perform its obligations under this Agreement; and\n\n                           (ii) this Agreement has been duly authorized and is\n         enforceable in accordance with its terms.\n\n                  (c)      MEDSCAPE COVENANTS THAT:\n\n                           (i) at all times during the Term, it will comply with\n         all applicable federal, state, local and foreign laws; and\n\n                                     - 5 -\n\n                           (ii) at all times during the Term, the Consumer\n         Health Site will be maintained in a professional manner consistent with\n         industry standards.\n\n                           (iii) advertising and promotion material and any\n         portion thereof created by or on behalf of Medscape and furnished by\n         Medscape to CBS and the use thereof shall not violate any law or\n         infringe upon or violate the rights of any Person.\n\n\n5.       INDEMNIFICATION\n\n         5.1 Each party (the \"Indemnifying Party\") shall at all times indemnify,\nhold harmless and defend the other party (collectively, the \"Indemnified Party\")\nfrom and against any loss, cost, liability or expense (including court costs and\nreasonable attorneys' fees) arising out of or resulting from any breach by the\nIndemnifying Party of any representation, warranty, covenant or agreement\ncontained herein. In the event of any such claim, the Indemnified Party shall:\n(i) promptly notify the Indemnifying Party of the claim; (ii) allow the\nIndemnifying Party to direct the defense and settlement of such claim with\ncounsel of the Indemnifying Party's choosing; and (iii) provide the Indemnifying\nParty, at the Indemnifying Party's expense, with information and assistance that\nis reasonably necessary for the defense and settlement of the claim. The\nIndemnified Party reserves the right to retain counsel, at the Indemnified\nParty's sole expense, to participate in the defense of any such claim. The\nIndemnifying Party shall not settle any such claim or alleged claim without\nfirst obtaining the Indemnified Party's prior written consent, which consent\nshall not be unreasonably withheld, if the terms of such settlement would\nadversely affect the Indemnified Party's rights under this Agreement or\notherwise. If the Indemnifying Party assumes the defense and settlement of the\nclaim as set forth above, then the Indemnifying Party's only obligation is to\nsatisfy the claim, judgment or approved settlement.\n\n\n6.       REMEDIES\n\n         6.1 CBS shall have the right to terminate this Agreement if (any of the\nfollowing occurs):\n\n                  (a) (i) Medscape materially breaches any material term or\n         condition of this Agreement and has failed to cure such breach within\n         thirty (30) days following notice of default. The foregoing cure period\n         will not apply to: (i) a term or condition for which a specific cure\n         period is provided, or (ii) a breach incapable of being cured.\n\n                           (ii) Notwithstanding anything to the contrary\n         contained in Section 6.1(a)(i) above, Medscape's material breach of the\n         covenant set forth in Section 4.1(c)(iii) above shall not be cause for\n         termination of this Agreement, if all the following conditions are met:\n\n                                    (A) Medscape has used its reasonable best\n                  efforts to satisfy the covenant concerned with respect to the\n                  material concerned;\n\n                                     - 6 -\n\n                                    (B) Medscape promptly withdraws or promptly\n                  notifies CBS to withdraw any material on which there is a\n                  claim by any Person of violation of the law or violation or\n                  infringement of such Person's rights;\n\n                                    (C) Medscape pays damages directly sustained\n                  by CBS in connection with Medscape's breach of such covenant;\n                  and\n\n                                    (D) Medscape indemnifies and holds CBS\n                  harmless (in accordance with Section 5 hereof) from any third\n                  party claim arising out of a breach or alleged breach of such\n                  covenant.\n\n                  (b) Medscape materially breaches any material term or\ncondition of any Collaboration Agreement and has failed to cure such breach: (i)\nwithin thirty (30) days following notice of default, except as otherwise set\nforth in Section 6.1(b)(ii); (ii) under the Trademark and Content Agreement as\nsuch breach relates to the CBS Mark(s) (as such term is defined in the Trademark\nand Content Agreement), within twenty (20) days following notice of default. The\nforegoing cure period will not apply to breaches incapable of being cured.\n\n                  (c) Medscape: (i) becomes insolvent or unable to pay its debts\nas they mature or makes an assignment for the benefit of its creditors; (ii) is\nthe subject of a voluntary petition in bankruptcy or any voluntary proceeding\nrelating to insolvency, receivership, liquidation, or composition for the\nbenefit of creditors, if such petition or proceeding is not dismissed within\nsixty (60) days of filing; (iii) becomes the subject of any involuntary petition\nin bankruptcy or any involuntary proceeding relating to insolvency,\nreceivership, liquidation, or composition for the benefit of creditors, if such\npetition or proceeding is not dismissed within sixty (60) days of filing; or\n(iv) is liquidated or dissolved.\n\n                  (d) Medscape issues to a CBS Competitor in any one transaction\nor series of related transactions, a number of voting securities of Medscape\nsuch that after such issuance or series of issuances, such CBS Competitor\nbeneficially owns or controls, directly or indirectly, nine percent (9%) or more\nof the outstanding shares of Common Stock (the \"threshold\"), and has failed to\nreduce such ownership of Common Stock below the threshold within twenty (20)\ndays following CBS's notice set forth in 6.1 (d) (ii) below.\n\n                           (i) Notwithstanding the foregoing however, the\n         provisions of this subparagraph 6.1(d) shall not apply to a stockholder\n         of Medscape who beneficially owns or controls, directly or indirectly,\n         nine percent (9%) or more of the outstanding shares of Common Stock on\n         the day prior to the date of this Agreement.\n\n                           (ii) The parties hereby agree that Medscape will give\n         CBS confidential written notice of its intent to enter into an\n         agreement for issuance of securities that would result in a stockholder\n         beneficially owning or controlling, directly or indirectly, nine\n         percent (9%) or more of the outstanding shares of Common Stock,\n         together with a description of the party with whom Medscape intends to\n         effect such a transaction, for the purpose of ascertaining CBS's\n         opinion whether, as of the date of the notice, such party is a CBS\n         Competitor. CBS shall have five (5) days from the receipt of such\n         notice to respond to Medscape. CBS's opinion shall be based solely on\n         the information provided to CBS in the notice and CBS shall have no\n         independent duty whatsoever to investigate \n\n                                     - 7 -\n\n         or inquire further. If CBS confirms that the party is not a CBS\n         Competitor, CBS shall be deemed to have waived any right of CBS\n         pursuant to this Article 6 in respect of such party and transaction,\n         unless there were material misstatements or omissions in the\n         disclosures made by Medscape to CBS in connection with the\n         transaction..\n\n                  (e) The Consumer Health Site ceases to operate:\n\n                           (i) due to circumstances beyond Medscape's control:\n\n                                    (A) for a period of twenty (20) consecutive\n                           days, or\n\n                                    (B) more than two (2) consecutive hours per\n                           week over a sixty (60) day period.\n\n                           (ii) due to any circumstances other than as described\n         in Section 6.1(e)(i) above:\n\n                                    (A) for a period of ten (10) consecutive\n                           days; or\n\n                                    (B) more than two (2) consecutive hours per\n                           week over a sixty (60) day period.\n\n                  (f) For purposes of this Section 6.1: (i) the term \"beneficial\nownership\" shall have the meaning set forth in Section 13(d) of the Securities\nAct of 1933, as amended, and the rules and regulations promulgated thereunder.\n\n         6.2      Medscape shall have the right to terminate this Agreement if:\n\n                  (a) CBS breaches any material term or condition of this\nAgreement and has failed to cure such breach within thirty (30) days following\nnotice of default. The foregoing cure period will not apply to: (i) a term or\ncondition for which a specific cure period is provided, or (ii) a breach\nincapable of being cured.\n\n                  (b) CBS breaches any material term or condition of any\nCollaboration Agreement and has failed to cure such breach within twenty (20)\ndays following notice of default. The foregoing cure period will not apply to\nbreaches incapable of being cured.\n\n         6.3 Each party may exercise its right to terminate pursuant to this\nSection 6 by sending the other party hereto appropriate notice.\n\n         6.4      In the event of termination of this Agreement:\n\n                  (a) pursuant to Section 6.1, all rights and obligations of the\nparties hereto shall terminate except those set forth in Section 5\n(Indemnification), Section 7 (Confidentiality), Section 8.1 (Permitted\nAssignments), Section 8.2 (Jurisdiction). Section 8.5 (Notice) and Section 8.8\n(Governing Law);\n\n                   (b) (i) pursuant to Section 6.2 and subject to the provisions\n         of Section 6.5(a) below, Medscape's obligations and CBS's rights and\n         obligations shall terminate, \n\n                                     - 8 -\n\n         except that CBS's obligation to provide advertising and promotion in\n         accordance with Section 2 and such other related provisions shall\n         continue, unless Section 6.4(b)(ii) below applies. (Notwithstanding the\n         foregoing, the rights and obligations of the parties with respect to\n         the following Sections shall not terminate: Section 5\n         (Indemnification), Section 7 (Confidentiality), Section 8.1 (Permitted\n         Assignments), Section 8.2 (Jurisdiction), Section 8.5 (Notice) and\n         Section 8.8 (Governing Law)).\n\n                           (ii) CBS's obligation to provide advertising and\n         promotion to Medscape shall cease if:\n\n                                    (A) CBS elects to pay Medscape the cash\n                  equivalent of the difference, if any, between (x) One Hundred\n                  and Fifty Million Dollars ($150,000,000) and (y) the amount of\n                  promotional value provided to Medscape during the Term (the\n                  \"Shortfall\"), subject to Section 6.4(b)(ii)(B) below.\n\n                                    (B) provided CBS has not elected to pay\n                  Medscape the Shortfall, then Medscape shall have the option,\n                  exercisable on any anniversary of the Effective Date, to\n                  require CBS to pay Medscape the applicable Shortfall, in lieu\n                  of CBS's performing its advertising and promotion obligations,\n                  if Medscape can show that CBS is unable to reasonably carry\n                  out its obligation to provide advertising and promotion. CBS\n                  will be deemed unable to carry out its obligation to provide\n                  advertising and promotion if, at any time after termination of\n                  this Agreement, CBS and Medscape fail to reach agreement on a\n                  media plan for the Contract Year concerned (i.e., the period\n                  which, but for termination, would have been the Contract Year\n                  concerned) after good faith efforts by the parties to do so\n                  (I) consistent with media plans executed or applicable in\n                  prior Contract Years or (II) with respect to the first\n                  Contract Year, consistent with the media plan agreed on or\n                  executed by the parties and attached hereto as Exhibit B.\n\n                                    (C) CBS shall pay the Shortfall as follows.\n\n                                            (I) within thirty (30) days after\n                           the end of each Contract Year remaining for (what\n                           would have been) the balance of the Term, CBS shall\n                           pay Medscape a cash payment, calculated on a pro-rata\n                           basis for (what would have been) the balance of the\n                           Term, equal to the difference between (x) the\n                           promotional value which CBS would be, but for the\n                           termination of this Agreement, obligated to provide\n                           to Medscape pursuant to this Agreement for such\n                           Contract Year; and (y) the amount of promotional\n                           value actually provided to Medscape during such\n                           Contract Year, if any; or\n\n                                            (II) CBS may elect, at any time, to\n                           pay the entire Shortfall amount to Medscape in a\n                           lump-sum cash payment equal to the net present value\n                           of the Shortfall, as follows:\n\n                                                     (x) any Shortfall paid (at\n                                    any time) during the first three years of\n                                    the Term shall be calculated at the lower of\n                                    (1) \n\n                                     - 9 -\n\n                                    CBS's short-term debt financing rate or (2)\n                                    CBS's average debt financing rate, during\n                                    the prior twelve-month period;\n\n                                                     (y) any Shortfall paid at\n                                    any time after expiration of the third\n                                    Contract Year shall be calculated at CBS's\n                                    average debt financing rate during the prior\n                                    twelve-month period.\n\n                                            (III) All payments made pursuant to\n                           this Section 6.4(b)(ii) shall be made in immediately\n                           available, non-refundable funds wired to Medscape's\n                           account in accordance with instructions to be\n                           provided in writing by Medscape.\n\n         6.5 (a) In the event of a material breach by CBS of this Agreement\n(which gives rise to Medscape's right to terminate this Agreement), Medscape's\nsole and exclusive remedy for such breach shall be the following: (i)\ntermination under Section 6.2; (ii) acceptance of CBS' payment, or promotion and\nadvertising, as applicable under Section 6.4; and (iii) termination of the\nTrademark and Content Agreement and acceptance of payment of the sum of\n$10,000,000 from CBS to Medscape, as liquidated damages and not as a penalty,\nfor loss by Medscape of the license under the Trademark and Content Agreement,\nwhich shall be Medscape's sole and exclusive remedy under the Trademark and\nContent Agreement. None of the foregoing remedies in this Section 6.5(a) may be\nexercised by Medscape unless all are exercised by Medscape.\n\n                  (b) Except as otherwise specified in Section 6.1(a)(ii) above,\nin the event of a material breach by Medscape of this Agreement (which gives\nrise to CBS's right to terminate this Agreement), CBS' sole and exclusive remedy\nfor such breach shall be: (i) termination of this Agreement under Section 6.1;\nand (ii) to the extent that CBS so elects, termination of any Collaboration\nAgreement.\n\n         6.6 As between CBS and Medscape, Medscape agrees that under no\ncircumstances are the shares issued by CBS, under the Common Stock Purchase\nAgreement, returnable to Medscape or subject to forfeiture. Medscape covenants\nnot to seek the return of the shares in any proceeding, between CBS, its\nsuccessors and assigns and Medscape, its successors and assigns.\n\n         6.7 Except with respect to third party claims for which each partly\nshall fully indemnify the other in accordance with the procedures set forth in\nparagraph 5.1 above, neither party shall be liable to the other party for any\nindirect, incidental, special, consequential, \"business interruption\" or any\nloss of profits hereunder.\n\n\n7.       CONFIDENTIALITY\n\n         7.1 Medscape and CBS agree and acknowledge that they may be required to\ndisclose to each other certain confidential information, including but not\nlimited to information concerning the other party's online services and web\nsites, technology, software, tools, business, or plans for the future in\nconnection with any of the foregoing, information concerning customers,\nsuppliers, personnel and other business relationships, sales and marketing\nplans, financial information and other confidential information, all of which\nshall be deemed \n\n                                     - 10 -\n\n\"Confidential Information\" for the purposes of this Section if, with respect to\nsuch information disclosed in tangible form, it is marked \"Confidential\" or its\nequivalent, and if disclosed orally or visually, it is identified as\nconfidential at the time of disclosure.\n\n         7.2 For a period of three (3) years from the date of receipt of any\nConfidential Information hereunder, or in perpetuity with respect to source code\nor related documentation, the receiving party agrees to protect the\nconfidentiality of the disclosing party's Confidential Information with at least\nthe same degree of care that it utilizes with respect to its own similar\nproprietary information, but in no event less than a reasonable standard of\ncare, including without limitation agreeing:\n\n                  (a) Not to disclose or otherwise permit any other person or\nentity access to, in any manner, the Confidential Information, or any part\nthereof in any form whatsoever, except that such disclosure or access shall be\npermitted to (i) an employee or consultant of the receiving party requiring\naccess to the Confidential Information in the course of his or her employment or\nconsulting services in connection with this Agreement and who has agreed in\nwriting to maintain the confidentiality of the confidential information of third\nparties in the receiving party's possession; or (ii) a director, legal advisor,\nor financial advisor of the recipient party hereunder, provided that such\nparties are bound to maintain the confidentiality of such information and\nprovided further that they are permitted to use such Confidential Information\nonly for the purposes of carrying out their fiduciary or other advisory\nresponsibilities on behalf of the party hereto from which it received such\nConfidential Information; and\n\n                  (b) Not to use the Confidential Information for any purpose\nother than to carry out the purposes of this Agreement.\n\n         7.3 Nothing in this Section 7 shall restrict the receiving party with\nrespect to information or data, whether or not identical or similar to that\ncontained in the Confidential Information, if such information or data: (i) was\nrightfully possessed by the receiving party before it was received from the\ndisclosing party; (ii) is independently developed by the receiving party without\nreference to the disclosing party's information or data; (iii) is subsequently\nfurnished to the receiving party by a third party not under any obligation of\nconfidentiality with respect to such information nor data, and without\nrestrictions on use or disclosure; or (iv) is or becomes public or available to\nthe general public otherwise than through any act or default of the receiving\nparty.\n\n\n8.       GENERAL\n\n         8.1 This Agreement shall be binding upon and inure to the benefit of\nthe parties and their respective successors and permitted assigns. No party may\nassign its respective rights and obligations, in whole or in part, under this\nAgreement without prior written consent of the other party hereto. Any attempt\nto assign this Agreement without such consent shall be void and of no effect ab\ninitio. Notwithstanding the foregoing, a party hereto may assign this Agreement\nor any of its rights and obligations hereunder to any entity controlling,\ncontrolled by or under common control with, such party, or to any entity that\nacquires such party by purchase of stock or by merger or otherwise, or by\nobtaining substantially all of such party's assets (the \"Permitted Assignee\"),\nprovided that (i) no such assignment shall relieve the assigning party of any of\nits \n\n                                     - 11 -\n\nobligations under this Agreement; (ii) with respect to any assignments effected\nby Medscape, no such Assignee (or any division thereof) is a CBS Competitor and\n(iii) such Permitted Assignee shall agree in writing to be bound by the terms\nand conditions hereof.\n\n         8.2 Each party hereto irrevocably submits to the exclusive jurisdiction\nof (a) the Supreme Court of the State of New York, New York County; and (b) the\nUnited States District Court for the Southern District of New York, for the\npurposes of any suit, action or other proceeding arising out of this Agreement\nor any transaction contemplated hereby or thereby. Each party hereto shall\ncommence any such action, suit or proceeding either in the United States\nDistrict Court for the Southern District of New York or if such suit, action or\nother proceeding may not be brought in such court for jurisdictional reasons, in\nthe Supreme Court of the State of New York, New York County. Service of any\nprocess, summons, notice or document by U.S. registered mail to a party's\naddress set forth below shall be effective service of process for any action,\nsuit or proceeding in New York with respect to any matters to which it has\nsubmitted to jurisdiction in this Section 8.2. Each party hereto irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit\nor proceeding arising out of this Agreement or the transactions contemplated\nhereby in (i) the Supreme Court of the State of New York, New York County; or\n(ii) the United States District Court for the Southern District of New York, and\nhereby and thereby further irrevocably and unconditionally waives and agrees not\nto plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in any inconvenient forum.\n\n         8.3 If any provision of this Agreement (or any portion thereof) or the\napplication of any such provision (or any portion thereof) to any Person or\ncircumstance shall be held invalid, illegal or unenforceable in any respect by a\ncourt of competent jurisdiction, such invalidity, illegality or unenforceability\nshall not affect any other provision hereof (or the remaining portion thereof)\nor the application of such provision to any other Persons or circumstances, and\nsuch provision will be limited or eliminated to the minimum extent necessary so\nthat this Agreement shall otherwise remain in full force and effect.\n\n         8.4 All notices or other communications required or permitted to be\ngiven hereunder shall be in writing and shall be delivered by hand or sent,\npostage prepaid, by registered, certified or express mail or reputable overnight\ncourier service and shall be deemed given when so delivered by hand, or if\nmailed, three days after mailing (one business day in the case of express mail\nor overnight courier service), as follows:\n\n                  (a)      if to Medscape,\n\n                           Medscape, Inc.\n                           134 West 29th Street\n                           New York, N.Y.  10001\n                           Fax:  (212) 760-3140\n                           Attention:  Chief Executive Officer\n\n                                     - 12 -\n\n\n                           with a copy to:\n\n                           Brobeck, Phleger &amp; Harrison, LLP\n                           1633 Broadway\n                           New York, N.Y.  10019\n                           Fax:  (212) 586-7878\n                           Attention:  Alexander D. Lynch, Esq.\n\n                           and:\n\n                           Patterson, Belknap, Webb &amp; Tyler LLP\n                           1133 Avenue of the Americas\n                           New York, New York 10036\n                           Fax:   (212) 336-2222\n                           Attention:  John P. Schmitt\n\n                  (b)      if to CBS Corporation,\n\n                           CBS Corporation\n                           51 West 52nd Street\n                           New York, New York 10019\n                           Fax:  (212) 975-9191\n                           Attention:  Chief Financial Officer\n\n                           with a copy to:\n\n                           CBS Corporation\n                           51 West 52nd Street\n                           New York, New York 10019\n                           Fax:  (212) 597-4031\n                           Attention:  General Counsel\n\n         8.5 The parties to this Agreement are independent contractors. There is\nno relationship of partnership, joint venture, employment, franchise, or agency\nbetween the parties. No party shall have the power to bind any other party or\nincur obligations on any other party's behalf without such other party's prior\nwritten consent.\n\n         8.6 The waiver by any party of a breach or default of any provision of\nthis Agreement by any other party shall not be construed as a waiver of any\nsucceeding breach of the same or any other provision, nor shall any delay or\nomission on the part of any party to exercise or avail itself of any right,\npower or privilege that it has, or may have hereunder, operate as a waiver of\nany right, power or privilege by such party.\n\n         8.7 This Agreement, including any agreement incorporated herein by\nreference, and any Exhibits hereto or thereto, contains the entire agreement and\nunderstanding between the parties hereto with respect to the subject matter\nhereof and supersedes all prior agreements and understandings relating to such\nsubject matter. No party shall be liable or bound to any other \n\n                                     - 13 -\n\nparty in any manner by any representations, warranties or covenants relating to\nsuch subject matter except as specifically set forth herein.\n\n         8.8 This Agreement shall be governed by and construed in accordance\nwith the internal laws of the State of New York applicable to agreements made\nand to be performed entirely within such State, without regard to the conflicts\nof law principles of such State.\n\n         8.9 This Agreement is for the sole benefit of the parties hereto and\ntheir permitted assigns and nothing herein expressed or implied shall give or be\nconstrued to give to any Person, other than the parties hereto and such assigns,\nany legal or equitable rights hereunder.\n\n         8.10 This Agreement may be executed in one or more counterparts, all of\nwhich shall be considered one and the same agreement, and shall become effective\nwhen one or more such counterparts have been signed by each party and delivered\nto each other party.\n\n         8.11 This Agreement may not be amended except by an instrument in\nwriting signed on behalf of each party hereto. By an instrument in writing CBS\nor Medscape, as the case may be, may waive compliance by the other party with\nany term or provision of this Agreement that CBS or Medscape, as the case may\nbe, was or is obligated to comply with or perform.\n\n         8.12 The headings contained in this Agreement hereto are for reference\npurposes only and shall not affect in any way the meaning or interpretation of\nthis Agreement. Any capitalized terms used in any Exhibit but not otherwise\ndefined therein, shall have the meaning as defined in this Agreement. When a\nreference is made in this Agreement to a Section or Exhibit, such reference\nshall be to a Section of, or an Exhibit to, this Agreement unless otherwise\nindicated.\n\n                  IN WITNESS WHEREOF, the parties have caused this Agreement to\nbe executed by their duly authorized representatives as of the date first above\nwritten.\n\n                                                   CBS CORPORATION              \n                                                   \n                                                   \n                                                   By:\n                                                   \n                                                   Name:\n                                                   \n                                                   Title:\n                                                   \n                                                   MEDSCAPE, INC.\n                                                   \n                                                   \n                                                   By:\n                                                   \n                                                   Name:\n                                                   \n                                                   Title:\n                                                   \n                                                   \n\n\n\n\n                                     - 14 -\n\n                                    EXHIBIT A\n             Attached to and forming a part of the Agreement made as\n                  of July 4, 1999 by and among CBS Corporation\n                               and Medscape, Inc.\n          -------------------------------------------------------------\n\n\n\nPLACEMENT POSSIBILITIES:\n\n1.       CBS Television Network programming\n\n2.       CBS Owned and Operated (a) Television and (b) Radio Stations\n         programming\n\n3.       CBS outdoor billboards\n\n4.       CBS Internet Sites\n\n5.       CBS Cable\n\n6.       Other placements that become available after the Effective Date.\n\nAVAILABLE PLACEMENT TYPES:\n\n--       30 second units, where available\n\n--       15 second units, where available\n\n--       10 second units, where available\n\n--       URL Scrolls Both (5 seconds)\n\n--       On-air mention (15 or 30 seconds, which are priced differently)\n\n--       Banner ads, buttons and sponsorships (measured on a daily, weekly or\n         monthly basis or as is otherwise appropriate)\n\n--       Credit rolls\/sign-offs (5 seconds)\n\n--       Billboard Ads\n\n--       Other placements that become available after the Effective Date.\n\n\n\n\n\n\n                                     - 15 -\n\n                                    EXHIBIT B\n\n\n             Attached to and forming a part of the Agreement made as\n                  of July 4, 1999 by and among CBS Corporation\n                               and Medscape, Inc.\n          -------------------------------------------------------------\n\n\n                                (Section 2.1(a))\n\n\nCBS shall use commercially reasonable efforts to place $20 million of\nadvertising for Medscape during the first Contract Year. To the extent of any\nshortfalls, such shortfalls will be placed by CBS during the following Contract\nYear. CBS will make all commercially reasonable efforts to avoid a material\nshortfall.\n\n         CBS shall use commercially reasonable efforts to allocate the media\nplacement to allow for approximately sixty percent (60%) of the placements to\nappear on network television; and the parties will mutually agree upon the\nbalance of the allocation. There may also be variances in the relative\nallocations of up to ten percent (10%) for each category. All placements shall\nbe subject to the following:\n\n         1.       The final decision on timing and placement will be at the sole\n                  discretion of CBS;\n\n         2.       CBS shall not be obligated to place any advertising on\n                  Westwood One, Inc. media properties;\n\n         3.       CBS shall not be obligated to place any advertising on the CBS\n                  Radio Network, unless CBS either owns or controls the CBS\n                  Radio Network.\n\n         4.       In the event CBS divests itself of any of its media property\n                  segments, CBS will use its commercially reasonable efforts to\n                  have the acquirer of the media property segment concerned\n                  honor the advertising placements or CBS will provide other\n                  placements on other CBS media property segments of similar\n                  value.\n\n         5.       In the event CBS acquires new media property segments, CBS\n                  will use its commercially reasonable efforts to have\n                  Medscape's advertising placements extend to such new segments.\n\n         6.       Except as set forth in Section 2.1 (b), all branding\n                  references to the Consumer Health Site or mark during any CBS\n                  News program, whether or not reference is made to the Consumer\n                  Health Site URL, will count as advertising\/promotion time,\n                  consistent with CBS's treatment of its other Web Site\n                  transactions.\n\n         7.       In the event of any disputes, respecting the placement,\n                  allocation or application of advertising under this Media\n                  Plan, the parties' senior executives will first meet and work\n                  in good faith to resolve such dispute, and if such dispute is\n                  not resolved submit such dispute to a non-binding Alternative\n                  Dispute Resolution (\"ADR\") \n\n                                     - 16 -\n\n                  proceeding, with a nationally recognized ADR group such as\n                  JAMS.\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n                                     - 17 -\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8179,9252],"corporate_contracts_industries":[9465],"corporate_contracts_types":[9613,9620],"class_list":["post-41996","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-medscape-inc","corporate_contracts_companies-viacom-inc","corporate_contracts_industries-media__broadcasting","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41996","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41996"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41996"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41996"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41996"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}