\n Q1 [*]
\n —————————————–
\n Q2 [*]
\n —————————————–
\n Q3 [*]
\n —————————————–
\n Q4 [*]
\n —————————————–
\n Q5 [*]
\n —————————————–
\n Q6 [*]
\n —————————————–
\n Q7 [*]
\n —————————————–
\n Q8 [*]
\n —————————————–
\n Q9 [*]
\n —————————————–
\n Q10 [*]
\n —————————————–
\n Q11 [*]
\n —————————————–
\n Q12 [*]
\n —————————————–
\n Each Quarter of any Extension
\n Term [*]
\n —————————————–
\n<\/c><\/s><\/caption>\n<\/table>\n 1.26 Non-Featured Section means the entire portion of each Yahoo Search
\n Results Page, excluding the Featured Sections.<\/p>\n
1.27 Overture Affiliate means any entity worldwide, including but not
\n limited to corporations,<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
4<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
partnerships, joint ventures and limited liability companies, in
\n which Overture directly or indirectly holds at least a majority
\n ownership, equity, or financial interest.<\/p>\n
1.28 Overture Affiliate IP means any patents that are owned or controlled
\n by an Overture Affiliate at any time during the applicable term of
\n any of the licenses granted in Section 2.5 below. Overture Affiliate
\n IP shall not mean patent claims found not to be valid in a final
\n determination by a court of competent jurisdiction.<\/p>\n
1.29 Overture API means any proprietary XML application programming
\n interfaces of Overture, and any successors thereto or replacements
\n thereof, that enable the exchange of Yahoo Search Queries and
\n Overture Results between the parties in accordance with this
\n Agreement.<\/p>\n
1.30 Overture Disqualified Entity means those entities listed in Exhibit
\n J, which list will [*] and may be updated by Overture according to
\n Section 2.5(d) below, with which Overture [*].<\/p>\n
1.31 Overture Licensed IP means any patents that are owned or controlled
\n by Overture at any time during the applicable term of any of the
\n licenses granted in Section 2.5 below. Overture Licensed IP shall
\n not mean patent claims found not to be valid in a final
\n determination by a court of competent jurisdiction.<\/p>\n
1.32 Overture Marks means any or all of the following, as provided by
\n Overture and in which Overture has prior rights: (a) the mark
\n “Overture” in typed form and stylized formats; (b) a circular
\n center, surrounded by three concentric circular rings (the “Overture
\n Logo,” as modified from time to time by Overture); (c) any words or
\n phrases in which Overture has intellectual property rights; (d) any
\n word, symbol or device, or any combination thereof, used or intended
\n to be used by Overture to identify, to indicate the source of origin
\n or to distinguish Overture’s products or services from the products
\n or services of others; and (e) any updates to the foregoing.<\/p>\n
1.33 Overture Reports means all information and data that falls within
\n the categories set forth in Exhibit F, which information and data
\n Overture will provide to Yahoo according to Section 8.4(b).<\/p>\n
1.34 Overture Results means the search results provided by Overture in
\n response to a Yahoo Search Query under this Agreement, which search
\n results (a) include only those search results provided by
\n Advertisers; (b) do not include search results that are not capable
\n of generating Gross Revenue (e.g., search results included as a
\n bonus or a charitable donation); and (c) contain a title and
\n description for display by Yahoo according to Section 4.3(a) below.<\/p>\n
1.35 Overture Site means the web site operated by or on behalf of
\n Overture, which is dedicated to the display by Overture of paid
\n search results and currently located at http:\/\/www.overture.com.<\/p>\n
1.36 Paid Advertising means any form of on-line advertising or promotion
\n for which Yahoo receives compensation in the form of cash or barter
\n from either the party being promoted or a third party acting on
\n behalf of the promoted party.<\/p>\n
1.37 Paid Inclusion means that, in exchange for a cash payment from a
\n third party, a search engine will guarantee to index (but not
\n necessarily to display) pages from that third party’s web site.<\/p>\n
1.38 Price Per Click or PPC means the average price per click that
\n Overture earned from its Advertisers on the Yahoo Search Results
\n Pages during the Quarter.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
5<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
1.39 Quarter means the three calendar month periods beginning May,
\n August, November and February of each year of the Term.<\/p>\n
1.40 Redesign means any change to any element of a Yahoo Search Results
\n Page implemented by Yahoo.<\/p>\n
1.41 Required Number of Overture Results means, with respect to the
\n Featured Top Section, three Overture Results (where such number is
\n subject to reduction under Sections 4.4 and 4.5) and, with respect
\n to the Featured Bottom Section, two Overture Results. The numbers
\n for both the Featured Top Sections and the Featured Bottom Sections
\n are subject to increase under Section 4.3(b).<\/p>\n
1.42 Restricted Search Results means any [*] search results that are (a)
\n [*] the Overture Results or to the Main Body Search Results (e.g.,
\n [*]); (b) displayed by Yahoo on [*] in response to a user’s [*]
\n search query [*] comprised of a keyword or phrase, which search
\n query is submitted [*] for the provision of search results; and (c)
\n assembled on the basis of a [*] administered process in which
\n advertisers pay to [*] their search results for a particular keyword
\n or phrase, where payment can take the form of cost per click, cost
\n per action, cost per impression, Paid Inclusion, pay-for-placement
\n or any other means of cash compensation paid by the advertiser [*].<\/p>\n
1.43 Revenue Share Payment has the meaning set forth in Section 8.2
\n below.<\/p>\n
1.44 Search Results Characteristics means all aspects of the Yahoo
\n Results, Overture Results and Main Body Search Results, including
\n but not limited to, left and right margins, pictures or images
\n associated with the search results, text size, color, font, heading,
\n shading\/background, spacing, blank areas, length, existence of URL,
\n and all other aspects of “look and feel.”<\/p>\n
1.45 Term means the Initial Term and, if applicable, each Extension Term
\n until the expiration thereof, unless terminated as set forth herein.<\/p>\n
1.46 Top Link Position means the first search result position in the
\n Featured Top Section, wherein Yahoo displays either a Yahoo Result
\n or an Overture Result in accordance herewith.<\/p>\n
1.47 U.S. User means a human user (i.e., not a `bot, metaspider, macro
\n program, Internet agent or any other automated means) who, at the
\n time of conducting a Yahoo Search Query, is accessing the Internet
\n from an Internet Protocol address within the United States or
\n Canada, as measured by Yahoo.<\/p>\n
1.48 Yahoo Affiliate means any entity worldwide, including but not
\n limited to corporations, partnerships, joint ventures and limited
\n liability companies, in which Yahoo directly or indirectly holds at
\n least a majority ownership, equity, or financial interest.<\/p>\n
1.49 Yahoo Directory means the browse tree (i.e., the taxonomy of
\n categories through which users navigate by clicking on category
\n links) within Yahoo’s principal, U.S.-targeted directory to the
\n World Wide Web, currently located at http:\/\/www.yahoo.com, which
\n browse tree currently resolves to dir.yahoo.com.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
6<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
1.50 Yahoo Foreign Properties means Yahoo’s or a Yahoo Affiliate’s
\n foreign-targeted network of media, communications and commerce
\n properties, including but not limited to those properties that are
\n branded in whole or in part by or on behalf of Yahoo or a Yahoo
\n Affiliate and presented in the local languages (e.g., Yahoo!
\n Germany, currently located at http:\/\/www.yahoo.de) and any other
\n foreign-targeted products or services that are developed and branded
\n in whole or in part by or on behalf of Yahoo or a Yahoo Affiliate.<\/p>\n
1.51 Yahoo Foreign Vertical means any foreign-targeted, category-specific
\n property within the Yahoo Foreign Properties that is owned or
\n operated by or on behalf of Yahoo or a Yahoo Affiliate, including
\n but not limited to those presented in the local language (e.g.,
\n Yahoo! UK Shopping, currently located at
\n http:\/\/shopping.yahoo.co.uk, and Yahoo! Italia Finance, currently
\n located at http:\/\/finance.yahoo.it).<\/p>\n
1.52 Yahoo Marks means trademarks, service marks or graphical brand
\n features of Yahoo in which Yahoo has prior rights.<\/p>\n
1.53 Yahoo Network means Yahoo’s U.S. targeted network of media,
\n communications and commerce properties, including but not limited to
\n Yahoo Search, the Yahoo Verticals and any other U.S. targeted
\n products or services that are developed and branded in whole or in
\n part by or on behalf of Yahoo or a U.S. based Yahoo Affiliate;
\n provided that any entity or property acquired, developed, controlled
\n by or branded in whole or in part by or on behalf of Yahoo or a U.S.
\n based Yahoo Affiliate after the Effective Date with whom Overture
\n has a then-existing contractual relationship will continue to
\n perform under the existing contract with Overture (to the extent
\n that such performance is within the reasonable control of Yahoo)
\n and, upon request by Overture, Yahoo shall not send any Yahoo Search
\n Queries from any such entity in the event that no contractual
\n relationship exists between the entity and Overture at the time of
\n the date of acquisition, development or branding in whole or in
\n party by or on behalf of Yahoo.<\/p>\n
1.54 [*].<\/p>\n
1.55 Yahoo Results means search results sold, bartered or bonused by
\n Yahoo that are displayed in the Top Link Position solely on the
\n first Yahoo Search Results Pages displayed in response to a Yahoo
\n Search Query (i.e., no “next” Search Results Pages), unless Overture
\n delivers the same Overture Results for any Yahoo Search Query
\n according to Section 3.2 (in which case Yahoo will be entitled to
\n display the same Yahoo Result on subsequent Yahoo Search Results
\n Pages).<\/p>\n
1.56 Yahoo Search means the search functionality within Yahoo’s
\n principal, U.S.-targeted directory to the World Wide Web, currently
\n located at http:\/\/www.yahoo.com, which search functionality
\n currently resolves either to search.yahoo.com or to
\n google.yahoo.com.<\/p>\n
1.57 Yahoo Search Box means a graphical area substantially similar in
\n form to the example set forth in Exhibit B that appears on web pages
\n across the Yahoo Network, including but not limited to the front
\n page of Yahoo Search and all Yahoo Search Results Pages, through
\n which a user can only submit a search query that is [*] a keyword or
\n phrase that resolves to Yahoo Search. Additionally, searches
\n initiated by a user clicking on the “next” button on a Yahoo Search
\n Results Page and searches conducted after Yahoo provides the user
\n with the correction to a misspelled word (in which case the user may
\n click on the corrected spelling to connect to a Yahoo Search Results
\n Page) and “Related Searches” (or similar functionality) that appear
\n below the Featured Bottom Section as shown in Exhibit C will be
\n deemed as submitted through a Yahoo Search Box. For clarity, search
\n boxes that resolve to searchable directories other than [*] or
\n successor directories thereto (e.g., searches submitted through any
\n Yahoo Vertical, including but not limited to the search box that
\n resolves to the specialty directory within Yahoo’s<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
7<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
shopping-related property) are not Yahoo Search Boxes.<\/p>\n
1.58 Yahoo Search Query means any search query comprised of a keyword or
\n phrase and initiated through the Yahoo Search Box by a U.S. User.
\n For clarity, search queries initiated through means other than the
\n Yahoo Search Box (e.g., searches initiated through any Yahoo
\n Vertical, including but not limited to the search box that resolves
\n to the specialty directory within Yahoo’s shopping-related property)
\n will not be deemed a Yahoo Search Query.<\/p>\n
1.59 Yahoo Search Query Reports means information and data regarding (a)
\n the performance of the Overture Results, to the extent provided by
\n Yahoo and not collected by Overture directly, including but not
\n limited to Impressions, the association with Yahoo of [*] and the
\n total number of test queries performed by Yahoo; (b) the performance
\n of [*], which information and data falls within the same categories
\n as those listed in Exhibit F for which Overture must provide
\n information and data about the Overture Results (e.g., [*] average
\n cost per click and [*]); and, if applicable, (c) any statistics
\n provided by Yahoo regarding the number and type of Yahoo Search
\n Queries and U.S. Users.<\/p>\n
1.60 Yahoo Search Results Pages means those web pages within Yahoo
\n Search, excluding the Jump Page, displayed in response to Yahoo
\n Search Queries.<\/p>\n
1.61 Yahoo Top Link Coverage means the total number of Yahoo Search
\n Queries that resulted in Yahoo’s display of a Yahoo Result, divided
\n by the total number of Yahoo Search Queries, as calculated by Yahoo
\n on a Quarterly basis.<\/p>\n
1.62 Yahoo Vertical means any U.S. targeted, category-specific property
\n within the Yahoo Network that is owned or operated by or on behalf
\n of Yahoo or a U.S. based Yahoo Affiliate, including but not limited
\n to Yahoo’s travel-related property (currently located at
\n http:\/\/travel.yahoo.com), finance-related property (currently
\n located at http:\/\/finance.yahoo.com), shopping-related property
\n (currently located at http:\/\/shopping.yahoo.com) and its
\n music-related property (currently located at
\n http:\/\/launch.yahoo.com).<\/p>\n
2. Licenses and Ownership.<\/p>\n
2.1 Licenses by Overture; Overture API and Licensed Materials. Subject
\n to the terms and conditions of this Agreement, Overture grants to
\n Yahoo a limited, non-exclusive, non-assignable, non-transferable,
\n non-sublicensable license during the Term to use the Overture API
\n solely for the purpose of enabling the exchange of Yahoo Search
\n Queries and Overture Results between the parties in accordance with
\n this Agreement and to reproduce, reformat and publicly display the
\n other Licensed Materials provided by Overture on Yahoo Search
\n Results Pages in accordance with this Agreement. Yahoo shall not
\n cache or store any Overture Results or any other Licensed Material.<\/p>\n
2.2 Use of Reports.<\/p>\n
(a) Use of Overture Reports. Yahoo may use the Overture Reports
\n and information disclosed under Section 8.4 only to verify
\n performance and payment under this Agreement, and may
\n reproduce the Overture Reports only as necessary to do so.
\n [*]. Within 10 days (unless such data is needed for a
\n potential dispute between the parties) after expiration or
\n termination of this Agreement, Yahoo shall delete and destroy
\n (and certify such destruction to Overture) or return to
\n Overture any and all copies of Overture Reports in Yahoo’s
\n possession and all copies disclosed to Yahoo Affiliates. Other
\n than the obligation to delete, destroy or return information,
\n this Section 2.2(a) terminates when the Agreement terminates
\n or expires.<\/p>\n
(b) Use of Yahoo Search Query Reports. Overture may use the Yahoo
\n Search Query Reports and<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
8<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
information disclosed under Section 8.4 only to verify
\n performance under this Agreement or, as long as the Yahoo
\n Search Query Reports are not associated with Yahoo or
\n otherwise identifiable as being derived from Yahoo, for its
\n internal purposes (e.g., [*]) and may reproduce Yahoo Search
\n Query Reports as necessary to do so. [*]. Within 10 days
\n (unless such data is needed for a potential dispute between
\n the parties) after expiration or termination of this
\n Agreement, Overture shall delete and destroy (and certify such
\n destruction to Yahoo) or return to Yahoo any and all copies of
\n reports provided by Yahoo pursuant to Section 8.4(c). Other
\n than the obligation to delete, destroy or return information,
\n this Section 2.2(b) terminates when the Agreement terminates
\n or expires.<\/p>\n
2.3 Use of Information and Data.<\/p>\n
(a) Information and Data Collected by Yahoo. All information and
\n data provided to Yahoo by users on the Yahoo Network or the
\n Yahoo Foreign Properties or otherwise collected from users on
\n the Yahoo Network or the Yahoo Foreign Properties by Yahoo
\n will be retained and owned exclusively by Yahoo. Overture
\n acknowledges that certain of that information and data may be
\n related to the performance of the Overture Results (the
\n “Overture Performance Data”). [*]. This Section survives
\n expiration or termination of the Agreement.<\/p>\n
(b) Information and Data Collected by Overture. All information
\n and data provided to Overture by users off the Yahoo Network
\n and the Yahoo Foreign Properties or otherwise collected from
\n users off the Yahoo Network and the Yahoo Foreign Properties
\n by Overture will be retained and owned exclusively by
\n Overture. Yahoo acknowledges that certain of that information
\n and data may be related to Yahoo Search Queries (the “Yahoo
\n Performance Data”). [*]. This Section survives expiration or
\n termination of the Agreement.<\/p>\n
2.4 Ownership of Marks.<\/p>\n
(a) Overture Marks. Yahoo will not contest the validity of, or
\n Overture’s ownership of, any of the Overture Marks. During the
\n Term, Yahoo will not, in any jurisdiction, adopt, use or
\n register, or apply for registration of, whether as a corporate
\n name, trademark, service mark or other indication of origin,
\n or as a domain name, any Overture Marks, or any word, symbol
\n or device, or any combination confusingly similar to any of
\n the Overture Marks.<\/p>\n
(b) Yahoo Marks. Overture will not contest the validity of, or
\n Yahoo’s ownership of, any of the Yahoo Marks. During the Term,
\n Overture will not, in any jurisdiction, adopt, use or
\n register, or apply for registration of, whether as a corporate
\n name, trademark, service mark or other indication of origin,
\n or as a domain name, any Yahoo Marks, or any word, symbol or
\n device, or any combination confusingly similar to any of the
\n Yahoo Marks.<\/p>\n
2.5 Overture Licensed IP.<\/p>\n
(a) License Grant; Yahoo Results and Exclusive Results. In
\n consideration of the rights and benefits provided hereunder
\n (including but not limited [*]<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
9<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
), and subject to the terms and conditions of this
\n Agreement, Overture hereby grants to Yahoo during the Term of
\n this Agreement a non-exclusive, non-assignable (except as set
\n forth in Section 2.5(i) below), non-sublicensable,
\n non-transferable (other than an assignment under Section
\n 2.5(i) below), world-wide [*] license, on an as is basis,
\n under the Overture Licensed IP to [*] and use an Equivalent
\n Search Product for the exclusive purpose of generating Yahoo
\n Results for display in the Top Link Position and Exclusive
\n Results as described in Sections 4.4 and 5.1(b).<\/p>\n
(b) License Grant; Yahoo Verticals. Subject to the terms and
\n conditions of this Agreement, Overture hereby grants to Yahoo
\n and the Yahoo Affiliates a non-exclusive, non-assignable
\n (except as set forth in Section 2.5(i) below),
\n non-sublicensable, non-transferable (other than an assignment
\n under Section 2.5(i) below), world-wide, [*] license
\n exercisable during the Term, on an as is basis, under the
\n Overture Licensed IP to [*] and use an Equivalent Search
\n Product on any Yahoo Vertical and, to the extent that
\n Overture-supplied search results are displayed within [*]
\n during the Term, any Yahoo Foreign Vertical; provided that
\n Yahoo and Yahoo Affiliates will not [*] or use the Equivalent
\n Search Product under the foregoing license until the date that
\n is at least [*] after Yahoo gives written notice to Overture
\n that Yahoo or a Yahoo Affiliate intends to exercise the
\n foregoing license, and Yahoo will continue to give Overture
\n written notice for each subsequent Yahoo Vertical or Yahoo
\n Foreign Vertical in which it or a Yahoo Affiliate intends to
\n exercise the foregoing license. The parties agree to [*] to
\n discuss ways in which Overture can offer and provide [*] on
\n Yahoo Verticals and Yahoo Foreign Verticals. [*]. The term of
\n each license exercised by Yahoo under this Section 2.5(b)
\n shall continue until, but in no event extend beyond, [*],
\n unless earlier terminated by Yahoo according to Section
\n 2.5(k).<\/p>\n
(c) License Grant; Equivalent Search Products. Subject to
\n the terms and conditions of this Agreement, Overture hereby
\n grants to Yahoo and the Yahoo Affiliates a non-exclusive,
\n non-assignable (except as set forth in Section 2.5(i) below),
\n non-sublicensable, non-transferable (other than an assignment
\n under Section 2.5(i) below), world-wide, [*] license, on an as
\n is basis, under Overture Licensed IP to [*] and use an
\n Equivalent Search Product solely within (1) Yahoo Search; (2)
\n those Yahoo Verticals and Yahoo Foreign Verticals in which
\n Overture-supplied search results are displayed as of the day
\n before the date on which this Agreement either expires or
\n terminates other than by reason of Yahoo’s breach; and (3)
\n those Yahoo Verticals and Yahoo Foreign Verticals in which
\n Overture-supplied search results have been displayed at any
\n time during the Term, but only in the case that Overture has
\n ceased to supply such search results to that Yahoo Vertical or
\n Yahoo Foreign Vertical due to either Overture’s election to
\n discontinue the applicable search service or Yahoo’s election
\n to discontinue the applicable search service by reason of
\n Overture’s breach; provided that Yahoo and Yahoo Affiliates
\n will not [*] or use an Equivalent Search Product under the
\n foregoing license until expiration of this Agreement or
\n termination of this Agreement for any reason other than
\n Yahoo’s breach. The term of the license set forth in this
\n Section 2.5(c) shall continue until, but in no event extend
\n beyond, [*], unless earlier terminated by Yahoo according<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
10<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
to Section 2.5(k).<\/p>\n
(d) License Restrictions.<\/p>\n
(1) [*]. With respect to the licenses set forth in this
\n Section 2.5, the rights to [*] extend only to the
\n following circumstances:<\/p>\n
(A) Yahoo and the Yahoo Affiliates will be entitled to
\n [*] the Equivalent Search Products;<\/p>\n
(B) Yahoo and the Yahoo Affiliates will be entitled to
\n enlist Overture (subject to Overture’s agreement)
\n either (A) [*] of the Equivalent Search Products
\n for Yahoo or the Yahoo Affiliate; or (B) to
\n provide [*] of the Equivalent Search Products to
\n Yahoo or the Yahoo Affiliate (e.g., in the case
\n that Yahoo elects to use [*] as an Equivalent
\n Search Product, or as a component thereof); and<\/p>\n
(C) Yahoo and the Yahoo Affiliates will be entitled to
\n [*] to build all or part of the Equivalent Search
\n Products [*]; provided that (i) the Equivalent
\n Search Products either are owned by Yahoo or a
\n Yahoo Affiliate or are [*] Yahoo or a Yahoo
\n Affiliate [*]; (ii) Yahoo operates and uses the
\n Equivalent Search Products [*]<\/p>\n
Overture will be entitled to update the list of
\n Overture Disqualified Entities from time to time
\n in writing, [*].<\/p>\n
(2) [*] Yahoo Search Boxes. Yahoo will not be entitled to
\n use any licenses hereunder in connection with [*]
\n according to Section 3.1 below.<\/p>\n
(e) Overture Affiliate IP. With respect to the licenses granted
\n under this Section 2.5, Overture will undertake all reasonable
\n efforts to cause Overture Affiliates to grant to Yahoo
\n identical licenses under the Overture Affiliate IP in the
\n applicable regional markets. Notwithstanding the foregoing
\n sentence, to the extent that Overture elects to transfer any
\n Overture Licensed IP to any Overture Affiliate during the term
\n of any license granted under this Section 2.5, such that the
\n affected Overture Licensed IP becomes Overture Affiliate IP,
\n Overture will undertake all steps necessary to ensure that
\n Yahoo maintains the licenses hereunder to that Overture
\n Affiliate IP.<\/p>\n
(f) Royalty. [*], the parties agree that the royalty payable under
\n the license set forth in [*] should be [*]. For purposes of
\n [*], a FMV royalty shall<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
11<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
mean a royalty that would be agreed upon by a willing licensee
\n and willing licensor in an arms length negotiation for a
\n license of a substantially similar scope to the license
\n granted under the applicable Section. Taking those factors
\n into account, the parties agree that the royalty payable by
\n Yahoo for exercise of the license under [*] (the “Applicable
\n Royalty”) shall be as follows:<\/p>\n
(1) Upon Expiration. In the event of expiration of this
\n Agreement, the Applicable Royalty shall be as follows:<\/p>\n
[*]<\/p>\n
(2) Upon Termination. In the event of termination of this
\n Agreement under Section 15.4 (Termination for Change of
\n Control) or other termination of this Agreement other
\n than by reason of Yahoo’s breach, the Applicable Royalty
\n shall be as follows:<\/p>\n
[*]<\/p>\n
Under no circumstances shall the FMV royalty under [*] or the
\n Applicable Royalty under [*] be payable until Yahoo commences
\n to exercise the applicable license thereunder, nor shall it
\n extend beyond the term of the applicable license (and, in no
\n event, beyond [*]).<\/p>\n
(g) Procedure for Determination of Royalty. Upon written notice by
\n Yahoo (1) no less than [*] days for purposes of Section
\n 2.5[*], and (2) no sooner than [*] under Section 2.5(f)(2) for
\n purposes of Section 2.5[*], Yahoo and Overture will negotiate
\n in good faith and undertake commercially reasonable efforts to
\n establish a FMV royalty. Upon such notice, each party will
\n provide the other party with such information as the
\n requesting party may reasonably request for purposes of
\n establishing FMV, including but not limited to information
\n concerning royalty-rates or other consideration under any
\n other licenses granted by Overture under any Overture Licensed
\n IP. Failure to mutually agree upon a specific royalty within
\n [*] days after that notice will constitute an Escalation Event
\n under Section 16.5(a) below. If the procedures outlined under
\n Section 16.5(a) fail to resolve the royalty, then, unless the
\n parties mutually agree upon a third party appraiser to
\n determine FMV, the parties agree to submit the determination
\n of the royalty to arbitration. The arbitration will be
\n conducted in accordance with Section 16.5(b) below, except
\n that the Panel shall hold a hearing and render its decision
\n within 90 days after appointment of the third arbitrator of
\n the Panel. Either party shall be entitled from time to time to
\n request that FMV be re-determined in accordance with the
\n provisions of this Section 2.5(g), provided that such request
\n shall not be made within [*] months after the previous
\n determination of FMV; such re-determined FMV shall be used to
\n compute the Applicable Royalty prospectively, effective as of
\n the date such re-determination is requested in accordance with
\n the provisions of this Section 2.5(g).<\/p>\n
(h) Other License Provisions. At the same time and under the same
\n procedure as for the determination of a royalty under
\n Subsection 2.5(g) above, the parties shall in good faith
\n negotiate to determine the remaining provisions of the
\n licenses under Sections 2.5[*], including but not
\n limited to provisions relating to payment procedure, reporting
\n procedure, record keeping requirements, audit procedure,
\n default and cure, termination and dispute resolution.<\/p>\n
(i) Assignment. Notwithstanding the provisions of Section 16.2,
\n Yahoo may, [*] the prior<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
12<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
written consent of Overture, assign the licenses and other
\n rights granted under this Section 2.5 to any entity that
\n succeeds to all or substantially all of the assets and
\n liabilities of Yahoo. Upon such assignment, the license set
\n forth in this Section 2.5 will be binding upon and inure to
\n the benefit of the parties hereto and their successors and
\n assigns.<\/p>\n
(j) Covenant not to Sue. Overture, on behalf of itself and the
\n Overture Affiliates, covenants that neither Overture nor the
\n Overture Affiliates will sue either (1) any advertiser for its
\n use of or participation in an Equivalent Search Product
\n operated by Yahoo or a Yahoo Affiliate in accordance with the
\n licenses granted hereunder; or (2) any third party other than
\n an [*] solely for its [*] in accordance with the licenses
\n granted hereunder. For clarity, nothing herein shall be deemed
\n to limit any claims of Overture against any third party with
\n respect to any act or omission other than [*] in accordance
\n with the licenses granted hereunder.<\/p>\n
(k) Termination. Yahoo will be entitled to terminate the foregoing
\n licenses, in whole or as to any Overture Licensed IP, at any
\n time on written notice to Overture. Should Overture terminate
\n this Agreement under Section 15.2 below by reason of Yahoo’s
\n breach of this Agreement, all licenses under this Section 2.5
\n terminate. In addition, should Yahoo divest itself of all or
\n part of a Yahoo Affiliate, such that the affected Yahoo
\n Affiliate no longer is a Yahoo Affiliate as defined hereunder,
\n all licenses under this Section 2.5 terminate with respect to
\n that affected Yahoo Affiliate.<\/p>\n
(l) Nothing in this Agreement shall be construed as imposing any
\n obligation upon Overture to provide any data, know-how or
\n other information to Yahoo or the Yahoo Affiliates under the
\n licenses identified in this Section 2.5.<\/p>\n
2.6 Ownership; Reservation of Rights. This Agreement is not intended to
\n and shall not affect ownership by either party of any of its
\n intellectual property rights, content, products and services, and
\n nothing set forth in this Agreement shall be construed as the
\n assignment or transfer of any ownership rights in any of the
\n foregoing from one party to the other. Other than the express
\n licenses set forth in this Section 2, nothing in this Agreement, and
\n nothing in any press release or other statement made in connection
\n with this Agreement (including but not limited to the press release
\n planned under Section 12.3 below), will be deemed a license (by
\n implication, estoppel or otherwise) under either party’s patent
\n rights or other intellectual property rights. Nothing in this
\n Agreement, and nothing in any press release or in any other
\n statement made in connection with this Agreement, will be deemed an
\n admission by either party that any existing, planned or contemplated
\n products, services or technology of the other party infringes or
\n does not infringe its (or a third party’s) patent or other
\n intellectual property rights or that the other party’s (or a third
\n party’s) patent or other intellectual property is valid. Likewise,
\n neither party’s performance according to the terms and conditions of
\n this Agreement will in any way broaden the intellectual property
\n rights of the other party. Both parties reserve all rights not
\n expressly granted.<\/p>\n
2.7 Non-Waiver of Claims. Nothing herein constitutes a waiver of any
\n pre-existing claims of one party against entities, or with respect
\n to businesses, services or product lines, acquired by the other
\n party during the Term of this Agreement or the term of a license
\n under Section 2.5 above.<\/p>\n
3. Maintenance of Yahoo Search Box; Delivery of Yahoo Search Queries.<\/p>\n
3.1 Yahoo Search Box. Yahoo will enable all U.S. Users to initiate Yahoo
\n Search Queries through the Yahoo Search Box. Yahoo will display the
\n Yahoo Search Box on the front page of Yahoo Search and all Yahoo
\n Search Results Pages. Yahoo will be entitled to display
\n commerce-related “universal” search boxes (i.e., shopping and\/or
\n auctions) on the front page of Yahoo Search no<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
13<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
more than 5 days in a month. The Yahoo Search Box shall be the only
\n [*] search functionality for general searches (e.g., [*]) of the
\n World Wide Web displayed within the Yahoo Network during the Term
\n (e.g., [*]). Yahoo will be entitled to [*] and to derive search
\n traffic [*] (or similar search functionality) on [*] provided that
\n such search traffic is directed to the Yahoo Search Results Pages.
\n If Yahoo exercises its rights under the preceding sentence, then the
\n parties will negotiate in good faith for the purpose of executing an
\n amendment to this Agreement, which amendment will, at Overture’s
\n option, either (a) address the manner in which [*] and the method by
\n which Yahoo will be compensated for such traffic; or (b) provide for
\n the suppression of [*] for those Yahoo Search Results Pages
\n displayed in response to a Yahoo Search Query from this [*], in
\n which case the resulting Impression would not be counted hereunder
\n and the provisions of Section 7 would not apply.<\/p>\n
3.2 Yahoo Search Queries; Delivery by Yahoo. Except as set forth in
\n Section 5.4, Yahoo will send the Yahoo Search Query to Overture each
\n and every time that a U.S. User initiates a search through a Yahoo
\n Search Box. When a U.S. User submits a Yahoo Search Query by
\n clicking on the “next” button on a Yahoo Search Results Page, Yahoo
\n will differentiate the Yahoo Search Query in a manner acceptable to
\n Overture so that Overture can deliver Overture Results that differ
\n from those Overture Results appearing on the prior Yahoo Search
\n Results Pages. Notwithstanding the foregoing, Yahoo acknowledges and
\n agrees that Overture will be entitled to deliver the same Overture
\n Results for any Yahoo Search Query initiated by a “next” button to
\n the extent that Overture does not have additional Overture Results
\n for the keyword or phrase. As of the Effective Date, the parties do
\n not intend this Agreement to apply to Yahoo Search or to any search
\n functionality within a Yahoo Vertical to the extent that the search
\n functionality is accessed or enabled through wireless or voice
\n services (however, the parties may include such wireless and voice
\n services during the Term by mutual consent).<\/p>\n
4. Delivery and Maintenance of Overture Results.<\/p>\n
4.1 Delivery by Overture. After receiving a Yahoo Search Query from
\n Yahoo, Overture will deliver to Yahoo, according to the Service
\n Level Agreement attached hereto as Exhibit A, either Overture
\n Results or a response that no results are being delivered for that
\n Yahoo Search Query. Overture will be entitled to redirect URLs
\n embedded within the Overture Results in the process of transferring
\n a user to the Advertiser site promoted within the applicable
\n Overture Result, so that Overture is able to record Actual Clicks.<\/p>\n
(a) Remedies. The parties acknowledge that it is in the financial
\n best interest of both parties to avert Unresolved Catastrophic
\n Problems and Recurrent Problems, as such terms are defined in
\n the Service Level Agreement attached as Exhibit A hereto and
\n this Agreement, respectively, and that the damages
\n attributable to such Unresolved Catastrophic Problems and
\n Recurrent Problems would be difficult to ascertain. Therefore,
\n the parties have specified the liquidated damages below as a
\n reasonable estimate of such damages and as each party’s sole
\n and exclusive remedy other than termination (in the event of
\n an uncured, material breach pursuant to Section 15.2 below)
\n for such Unresolved Catastrophic Problems that prevent
\n Overture from fulfilling its delivery obligations pursuant to
\n Section 4.1 above and for Recurrent Problems. For purposes of
\n this Section 4.1, a “Recurrent Problem” means any Problem,
\n Severe Problem, or Catastrophic Problem (each, individually, a
\n “Recurrent Problem Element”), or any combination of Recurrent
\n Problem Elements, which renders the Overture Results
\n unavailable or unusable for more than [*] in any [*], and is
\n attributable to a single party.<\/p>\n
(1) Yahoo Remedy for Unresolved Catastrophic Problems. For
\n any Unresolved Catastrophic Problem within the
\n reasonable control of Overture, Overture will pay to
\n Yahoo an amount calculated as [*] of Gross Revenue that
\n Yahoo would have earned pursuant to this Agreement
\n during the period beginning [*] after the earlier of
\n Overture’s<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
14<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
learning of, or Yahoo’s providing notice to Overture
\n that a Problem, Severe Problem or Catastrophic Problem
\n attributable to Overture has been detected but not
\n resolved. Overture’s liability for such payment will not
\n extend beyond the point in time when (i) Overture has
\n resolved the Catastrophic Problem, even if Yahoo has
\n elected to manually override pursuant to Section IV(F)
\n of the Service Level Agreement; or (ii) a Yahoo
\n Technical Lapse is in effect. For clarity, Overture’s
\n liability would continue to accrue incrementally if
\n Yahoo resolves such Technical Lapse but Overture has not
\n resolved the Catastrophic Problem.<\/p>\n
(2) Overture Remedy for Unresolved Catastrophic Problems. In
\n the event of any Unresolved Catastrophic Problem within
\n the reasonable control of Yahoo, Yahoo will pay to
\n Overture an amount calculated as [*] of Gross Revenue
\n that Overture would have earned pursuant to this
\n Agreement during the period beginning [*] after the
\n earlier of Yahoo’s learning of, or Overture’s providing
\n notice to Yahoo that a Problem, Severe Problem or
\n Catastrophic Problem attributable to Yahoo has been
\n detected but not resolved. Yahoo’s liability for such
\n payment will not extend beyond the point in time when
\n (i) Yahoo has resolved the Catastrophic Problem to meet
\n the acceptable performance standards set forth in the
\n Service Level Agreement, or (ii) a technical lapse by
\n Overture (such as a Problem, Severe Problem or
\n Catastrophic Problem attributable to Overture) is in
\n effect. For clarity, Yahoo’s liability would continue to
\n accrue if Overture resolves such technical lapse but
\n Yahoo has not resolved the Catastrophic Problem.<\/p>\n
(3) The Parties’ Remedies for Recurrent Problems. The party
\n responsible for any Recurrent Problem will pay the
\n non-breaching party (the “NBP”) an amount calculated as
\n the [*] of Gross Revenue that the NBP would have earned
\n during the total period in which the Recurrent Problem
\n Elements occurred. The beginning of this period
\n commences [*] after the party that is responsible for
\n the Recurrent Problem initially learns of, or receives
\n notice of, the occurrence of the first Recurrent Problem
\n Element in the Recurrent Problem. The liability of the
\n party responsible for the Recurrent Problem will not
\n extend beyond the point in time when the responsible
\n party has resolved the final Recurrent Problem Element
\n in the Recurrent Problem and will not include periods
\n when the NBP experiences a technical lapse during a
\n Recurrent Problem Element. For clarity, the responsible
\n party’s liability would continue to accrue incrementally
\n if the NBP resolves such technical lapse but the
\n responsible party has not resolved the Recurrent Problem
\n Element.<\/p>\n
4.2 Suppression by Overture. Overture will suppress delivery of certain
\n Overture Results to Yahoo in accordance with the following:<\/p>\n
(a) [*]-Related Overture Results. Overture will suppress
\n [*]-related Overture Results, at a minimum, to the same degree
\n as the [*] that appear on the Overture Site as of the
\n Effective Date. Upon receipt by Overture of [*] Yahoo Search
\n Query for which Overture has [*] Overture Results, Overture
\n will send to Yahoo such [*] Overture Results. For all other
\n [*] Yahoo Search Queries, Overture shall not return any
\n Overture Results, and if Overture does send an Overture
\n Result, then Yahoo shall be entitled to block such Overture
\n Result from being displayed pursuant to Section 4.5(a) below.
\n The parties acknowledge and agree that the delivery of
\n [*]-related Overture Results to Yahoo is not contemplated by
\n this Agreement and, thus, [*].<\/p>\n
(b) Overture Results related to [*]. Overture will suppress
\n Overture Results that link directly to a page owned or
\n operated by [*].<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
15<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
(c) Overture Results in response to Excluded Terms. Overture will
\n not deliver Overture Results to Yahoo in response to a U.S.
\n User’s search of the Yahoo Search for an Excluded Term.<\/p>\n
(d) Overture Results identified by Yahoo. Upon a reasonable
\n request by Yahoo according to Section 4.5 below, Overture
\n agrees to cease delivery of the affected Overture Result.<\/p>\n
(e) Suppression of all Overture Results. Overture will be entitled
\n to cease delivery of all Overture Results for any Yahoo Search
\n Query in Overture’s keyword marketplace that triggers
\n Overture’s compliance obligations under this Section 4.2.<\/p>\n
4.3 Display by Yahoo. After receiving Overture Results from Overture in
\n response to a Yahoo Search Query, Yahoo will display the Required
\n Number of Overture Results in the Featured Sections as provided for
\n in this Agreement, unless Overture provides less than the Required
\n Number of Overture Results to Yahoo in response to the particular
\n Yahoo Search Query, in which case Yahoo will display all Overture
\n Results provided by Overture in the Featured Sections.<\/p>\n
(a) Order and Appearance. On the Effective Date and during any
\n population test pursuant to the Estimated Yahoo Payment and
\n Guaranteed Fixed Payment Adjustment Process set forth in
\n Exhibit K, the Yahoo Search Results Page shall be displayed as
\n provided for in Exhibit C. Yahoo will display the Overture
\n Results in the order provided by Overture. Yahoo will display
\n Overture Results in the Featured Sections with Overture’s full
\n title and a truncated description, both of which together will
\n consist of no less than 88 characters (as shown in the mock-up
\n attached as Exhibit C hereto), as well as with the full URL of
\n the web page associated with each Overture Result. When viewed
\n via Microsoft’s principal “Internet Explorer” browser product
\n (U.S. versions 4.0 and higher) on the Microsoft Windows
\n platform or any other browser that easily supports a mouse
\n over implementation, the title will give rise to the full
\n description to the extent that the user passes his or her
\n cursor over the title (a “Mouse Over”), which Mouse Over will
\n be substantially similar in form to the example set forth in
\n Exhibit C. Yahoo will not modify [*] of the Overture Results,
\n except that Yahoo will truncate the description as described
\n in the foregoing sentence. The only content in the Featured
\n Sections shall be the Overture Results and the Yahoo Results,
\n as provided for in this Agreement. All of the Search Result
\n Characteristics of the Overture Results and the Yahoo Results
\n in the Featured Sections, as well as the Exclusive Result,
\n shall be identical. To the extent that the [*] of the Overture
\n Results and the [*] are not identical to the Main Body Search
\n Results, Yahoo will provide Overture with written notice, and
\n any dispute regarding the difference between [*] will be
\n deemed an Escalation Event that is not subject to arbitration
\n under<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
16<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
Section 16.5(b) below (i.e., [*]). The entire first search
\n result in the Featured Top Section shall appear Above the
\n Fold. The heading of the Featured Sections shall be “Sponsor
\n Matches” or such other heading as is mutually agreed upon by
\n the parties. Yahoo agrees that it will not [*].<\/p>\n
(b) Increases in the Required Number of Overture Results. Yahoo
\n will be entitled to increase the number of Overture Results
\n that appear within the Featured Sections as long as Yahoo (a)
\n provides Overture with no less than [*] prior written notice
\n of the increase setting forth the keywords and terms for which
\n the number of Overture Results shall be increased and the
\n duration of time that the increase will last (which in no
\n event shall be less than [*]); (b) enlarges the applicable
\n Featured Section, as determined by Yahoo, proportionally to
\n account for the increased number of Overture Results; and (c)
\n confers with Overture regarding possible revisions to the
\n Service Level Agreement in order to account for the additional
\n Overture Results and, to the extent that the parties cannot
\n agree on the appropriate revision or whether a revision to the
\n Service Level Agreement is warranted at all, the parties will
\n resolve the issue via the escalation provisions set forth in
\n Section 16.5(a). If Yahoo elects to [*] within the Featured
\n Sections after the date that is [*] from the Effective Date,
\n then Yahoo will provide Overture with [*] days prior written
\n notice, and Yahoo agrees to add one additional Overture Result
\n to the Featured Top Section with respect to [*] keywords or
\n phrases upon which the parties mutually agree, which agreement
\n will not unreasonably withheld, for the period during which
\n [*].<\/p>\n
(c) No Incentives to Click. Yahoo will not provide users with any
\n incentives (e.g., points or special offers) to click on
\n Overture Results.<\/p>\n
4.4 Preemption by Yahoo. In response to Yahoo Search Queries, Yahoo will
\n be entitled to display either (a) one Yahoo Result on the first
\n Yahoo Search Results Pages, unless Overture delivers the same
\n Overture Results for any Yahoo Search Query according to Section 3.2
\n (in which case Yahoo will be entitled to display the same Yahoo
\n Result on subsequent Yahoo Search Results Pages), in the Top Link
\n Position; or (b) one Exclusive Result (as defined below) in the
\n “Yahoo! Exclusives” (or similarly named) section of the Yahoo Search
\n Results Pages according to Section 5.1(b) below. If Yahoo elects to
\n display a Yahoo Result in the Top Link Section in response to a
\n particular Yahoo Search Query, then the Required Number of Overture
\n Results in the Featured Top Section for the particular Yahoo Search
\n Query will be reduced to two.<\/p>\n
4.5 Removal by Yahoo; Potential Liability; Excluded Terms; Contextual
\n Relevance. Yahoo will be entitled to block the display of any
\n Overture Result for which Overture has an obligation to suppress
\n delivery pursuant to Section 4.2 and this Section 4.5.<\/p>\n
(a) Overture Results that Yahoo deems Objectionable. As it
\n consistently administers its company-wide advertising
\n policies-(e.g., [*]), Yahoo will be entitled to block Overture
\n Results that do not comply with such policies from the Yahoo
\n Search Results Pages or to amend the list of Excluded Terms to
\n include any keywords or phrases to which those Overture
\n Results relate, as reasonably determined by Yahoo. Yahoo also
\n will be entitled to block or to request removal of any
\n Overture Results that [*]. Yahoo also will be entitled to
\n block or to request removal of any Overture Results that, in
\n Yahoo’s reasonable belief, might [*] or might [*]. In any
\n event, Yahoo agrees to notify Overture and to provide Overture
\n with an electronic copy of the Overture Results that give rise
\n to Yahoo’s request.<\/p>\n
(b) Overture Results that Yahoo deems Contextually Irrelevant. As
\n it consistently administers its Yahoo Search-wide editorial
\n policies, Yahoo will be entitled to block or to request
\n removal of any Overture Results that are not contextually
\n relevant to the Yahoo Search Query. The<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect
\n to the omitted portions.<\/p>\n
17<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
parties will discuss relevancy issues in good faith, including
\n but not limited to the means for resolving relevancy issues
\n (e.g., revision of title and description, filter or removal).
\n Any disagreement between Overture and Yahoo concerning whether
\n an Overture Result is contextually relevant under this Section
\n 4.5(b) shall give rise to an Escalation Event.<\/p>\n
4.6 Yahoo Suppression. Yahoo will suppress delivery of certain Yahoo
\n Results in accordance with the following:<\/p>\n
(a) Results that Overture deems Potentially Damaging. Overture
\n will be entitled to request that Yahoo not display any Yahoo
\n Results that, in Overture’s reasonable belief, might subject
\n Overture to criminal or civil liability.<\/p>\n
(b) Contextual Relevance. As it consistently administers its
\n editorial policies, Overture will be entitled to request that
\n Yahoo not display any Yahoo Results that are not contextually
\n relevant to the Yahoo Search Query. The parties will discuss
\n relevancy issues in good faith, including but not limited to
\n the means for resolving relevancy issues (e.g., revision of
\n title and description, filter or removal). Any disagreement
\n concerning this Section 4.6(b) shall give rise to an
\n Escalation Event.<\/p>\n
5. Yahoo Search Results Pages; Featured Sections.<\/p>\n
5.1 Creation and Maintenance of Yahoo Search Results Pages. Yahoo will
\n create and maintain the Yahoo Search Results Pages during the Term
\n and, except as set forth in Section 5.4, display a Yahoo Search
\n Results Page in response to the submission of every Yahoo Search
\n Query.<\/p>\n
(a) Editorial Control. Yahoo will be solely responsible for the
\n design, layout, “look and feel,” posting and maintenance of
\n the Yahoo Network, including but not limited to the Yahoo
\n Search Results Pages and any sections thereof. Notwithstanding
\n any provision herein to the contrary, except Section 4.3(a)
\n and the introductory paragraph thereto which contain the
\n minimum display requirements, Yahoo will be entitled to
\n redesign or modify [*], of the Yahoo Network, including but
\n not limited to the Yahoo Search Results Pages and any sections
\n thereof. Yahoo will undertake commercially reasonable efforts
\n to provide Overture with a reasonable amount of notice prior
\n to implementing any Redesign of the Yahoo Search Results
\n Pages.<\/p>\n
(b) Pre-Approved Change to Yahoo Search Results Pages. With
\n respect to Yahoo Search Results Pages on which Yahoo does not
\n display a Yahoo Result, Overture hereby approves Yahoo’s
\n creation and display of a “Yahoo! Exclusives” (or similarly
\n named) section on the Yahoo Search Results Pages, which
\n section will include no more than one search result (an
\n “Exclusive Result”) and might appear above the Featured Top
\n Section.<\/p>\n
(c) Acknowledgement of Redesign. The parties acknowledge and agree
\n that Yahoo might implement more than one “look and feel” for
\n the Yahoo Search Results Pages, which “look and feel” could
\n vary based on the nature of the Yahoo Search Query, as
\n determined by Yahoo.<\/p>\n
(d) “Sponsor Matches” Link. Both parties acknowledge and agree
\n that, with respect to the page to which users navigate
\n directly from the “What are Sponsor Matches?” link (as shown
\n on the mock-up) or other similar link on the Yahoo Search
\n Results Page (the “Help Page”), the Help Page that has been
\n used prior to the Effective Date shall be the Help Page that
\n is used after the Effective Date, unless otherwise mutually
\n agreed upon by the parties.<\/p>\n
5.2 Creation and Maintenance of Featured Sections. Yahoo will create and
\n maintain the Featured Sections on the Yahoo Search Results Pages
\n throughout the Term in accordance with the terms of<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect
\n to the omitted portions.<\/p>\n
18<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
this Agreement, including but not limited to Section 4.3(a) above.
\n On the Effective Date and during any population test pursuant to the
\n Estimated Yahoo Payment and Guaranteed Fixed Payment Adjustment
\n Process set forth in Exhibit K, the Featured Sections shall be
\n displayed as provided for in Exhibit C.<\/p>\n
5.3 Blocked Content. Yahoo will undertake commercially reasonable
\n efforts not to sell advertising units (including but not limited to
\n pop-up windows) that block any portion of a user’s view of the
\n Overture Results [*].<\/p>\n
5.4 Jump Page displayed in response to Hybrid Search Queries. With
\n respect to [*] Yahoo Search Queries for which “filtered” Overture
\n Results are available (the “Hybrid Search Queries”), Yahoo will be
\n entitled to present a jump page (the “Jump Page”) to each and every
\n U.S. User in response to that U.S. User submitting a Hybrid Search
\n Query, which Jump Page will (a) inform the U.S. User that the Hybrid
\n Search Query is likely to return [*] search results; (b) enable the
\n U.S. User to navigate directly to a contextually relevant Yahoo
\n Search Results Page and, to the extent that the U.S. User selects
\n this option, Yahoo will send the Hybrid Search Query to Overture in
\n accordance with Section 3.2 above; (c) enable the U.S. User to
\n submit a new Yahoo Search Query; and, in some cases, (d) enable the
\n U.S. User to navigate directly to a page within a third party web
\n site on which contextually relevant [*] search results are
\n displayed, thereby terminating the Hybrid Search Query. Any other
\n treatment of Hybrid Queries will be subject to mutual agreement of
\n the parties. The parties acknowledge and agree that the Jump Page
\n does not constitute a Yahoo Search Results Page, and that Yahoo’s
\n treatment of Hybrid Search Queries in this manner does not
\n constitute a breach of this Agreement. The parties further
\n acknowledge and agree that the delivery of [*] Overture Results to
\n Yahoo is not contemplated by this Agreement and, thus, Yahoo [*].<\/p>\n
6. Technical Implementation; Interaction between the Parties.<\/p>\n
6.1 Compliance with Service Level Agreement. Each party will comply with
\n the terms and conditions of the Service Level Agreement attached
\n hereto as Exhibit A.<\/p>\n
6.2 Technical Resources; Quarterly Meetings. During the Term, each party
\n will contribute those technical resources reasonably necessary to
\n facilitate the exchange of Yahoo Search Queries and Overture Results
\n and the improvement of the tracking and reporting outlined in
\n Section 8.4 below. The search product development teams of the
\n parties will meet no less than once per Quarter to exchange
\n information regarding relevance of Overture Results and Yahoo
\n Results and developing trends in the search product market.<\/p>\n
6.3 No Disparaging Comments. Yahoo will not post any disparaging
\n comments attributable to Yahoo about Overture or the Overture
\n Results on Yahoo Search and the accompanying directory property
\n during the Term (e.g., [*]), and Overture will not post any
\n disparaging comments attributable to Overture about Yahoo or Yahoo
\n Search on the Overture Site during the Term. In addition, during the
\n Term, Yahoo agrees (a) not to use Overture’s Confidential
\n Information, the Overture Results or the Overture Reports for the
\n purpose of selling Overture advertisers placement in any Yahoo
\n search sponsor matches program; (b) not to target Overture
\n advertisers by parsing the Overture XML feed for Overture advertiser
\n contact information or by obtaining such information from another
\n source provided by Overture. Notwithstanding the foregoing, under no
\n circumstances shall this Agreement be deemed to restrict Yahoo in
\n any manner from: (1) marketing any Yahoo product or service
\n (including but not limited to any Yahoo sponsor matches program) to
\n any existing Yahoo advertiser, content provider, or Yahoo registered
\n user; (2) marketing any Yahoo product or service to any potential
\n Yahoo<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
19<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
advertiser through “one-to-one” contacts (e.g., telephone calls,
\n letter, e-mails, sales calls); or (3) marketing any Yahoo product or
\n service through any mass media (e.g., television, radio, print,
\n online) that does not specifically target Overture advertisers by
\n name. For clarity, individual Yahoo! salespeople may distinguish
\n Yahoo! sponsor matches programs from Overture’s by comparing aspects
\n of the two programs (e.g., [*]).<\/p>\n
6.4 Co-Marketing Opportunities. The parties agree to deliver marketing
\n messages on behalf of each other via email or other means, the
\n recipients, content and timing of which will be mutually agreed upon
\n by the parties, which approval shall not be unreasonably withheld.<\/p>\n
7. Exclusivity; Additional Domestic Opportunities; International.<\/p>\n
7.1 Exclusivity.<\/p>\n
(a) General. Except as set forth herein, the Overture Results will
\n be the only Restricted Search Results displayed by Yahoo
\n within [*] during the Term. In addition, other than Yahoo
\n Results and Exclusive Results displayed by Yahoo in accordance
\n herewith and any search results for which Yahoo is compensated
\n through its [*], Yahoo will not display within Yahoo Search
\n any [*]. Finally, Yahoo will not display Paid Advertising that
\n promotes the Restricted Search Results of any [*] in the area
\n between the [*] and the [*] or [*] or [*] of the Featured Top
\n Section.<\/p>\n
(b) [*]. During the Term, Yahoo will not enter into any agreement
\n with any third party under which Yahoo is supplied with (1)
\n [*] products for use within [*]; or (2) [*] products for use
\n on the Yahoo Network, which [*] products (i) are [*] to
\n Overture’s [*] search service as of the Effective Date; and
\n (ii) assemble Restricted Search Results for display in
\n response to general searches [*]. During the Term, if [*]
\n offers a service outside the scope of the [*], then Yahoo is
\n free to utilize that service on the Yahoo Network, subject to
\n Section 7.3 below.<\/p>\n
7.2 Exclusions; Clarifications; Acknowledgements.<\/p>\n
(a) Exclusions; Yahoo Listings and [*]. Notwithstanding anything
\n to the contrary in this Agreement, Yahoo will be entitled to
\n continue to offer and grow its listings businesses (e.g.,
\n [*]), as long as Yahoo does not place its directory “Sponsor
\n Listings” (or similarly named listings) within Yahoo Search in
\n a manner that [*] (for clarity, [*]). In addition,
\n notwithstanding anything to the contrary in this Agreement,
\n Yahoo will be entitled to monetize all or part of the Main
\n Body Search Results by<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect
\n to the omitted portions.<\/p>\n
20<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
implementing [*], provided that Yahoo will notify Overture,
\n and discussions arising therefrom will be deemed an Escalation
\n Event (with the criteria being whether [*]), before Yahoo
\n itself [*] (or instructs the [*]) to the fact that a Main Body
\n Search Result is paid. Any [*] results will be displayed with
\n the same Search Result Characteristics as the other Main Body
\n Search Results, and the [*] results may not be displayed in a
\n separate section, but rather must be displayed among the other
\n Main Body Search Results. Overture acknowledges and agrees
\n that (1) Yahoo may not have control over [*]; and (2) Yahoo
\n uses and will continue to use the fact that a web site within
\n its directory is [*] for display in the Main Body Search
\n Results.<\/p>\n
(b) Clarifications; U.S. Users. For clarity, the exclusivity set
\n forth in this Section 7 extends to U.S. Users on Yahoo Search
\n only, unless the parties mutually agree in an executed
\n amendment to this Agreement to broaden the exclusivity to
\n include New Domestic Opportunities or International
\n Opportunities as set forth in Section 7.3 and 7.4 below.<\/p>\n
(c) Acknowledgements; European Users on Yahoo Search. Overture
\n acknowledges and agrees that Yahoo has entered into agreements
\n with (a) LookSmart International Pty Limited (“LookSmart
\n Australia”) under which, among other things, LookSmart
\n Australia provides and Yahoo displays Restricted Search
\n Results in response to search queries submitted to Yahoo
\n Search from Internet Protocol addresses within Australia or
\n New Zealand, as measured by Yahoo; and (b) eSpotting Media
\n (UK) Limited (“eSpotting UK”) under which, among other things,
\n eSpotting UK might provide and Yahoo might display Restricted
\n Search Results in response to search queries submitted to
\n Yahoo Search from Internet Protocol addresses within Europe,
\n as measured by Yahoo. Overture agrees that nothing in this
\n Agreement will be construed to prohibit, restrict, or
\n otherwise prevent Yahoo from continuing to participate in and
\n pursue the foregoing relationships, as long as these pursuits
\n do not violate this Agreement. Nothing in this provision or
\n Agreement shall be construed to constitute an admission by
\n Overture that any third party system does not infringe any
\n Overture intellectual property right. Further, nothing in this
\n provision or Agreement shall preclude Overture from asserting
\n a claim for infringement against any third party for
\n infringement of Overture’s intellectual property or seeking an
\n injunction against providing infringing search results to
\n others, including Yahoo.<\/p>\n
7.3 Additional Domestic Opportunities. If, during the Term, Yahoo elects
\n to create a new opportunity for a [*] for display on the Yahoo
\n Network but outside Yahoo Search and Yahoo Directory (the “New
\n Domestic Opportunity”), then Yahoo will provide Overture with
\n written notice that sets forth Yahoo’s business requirements for the
\n New Domestic Opportunity. The parties will negotiate in good faith
\n for the purpose of executing an amendment to this Agreement under
\n which Overture will provide the New Domestic Opportunity under
\n reasonable terms and conditions. [*].<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
21<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
7.4 International Opportunities. The parties will negotiate in good
\n faith for the purpose of executing an amendment to this Agreement
\n under which Overture or an Overture Affiliate will provide
\n Restricted Search Results within certain mutually agreed upon areas
\n of those Yahoo Foreign Properties located within the [*], which
\n provision by Overture cannot occur until Yahoo’s or the Yahoo
\n Affiliate’s pre-existing contractual obligations with respect to the
\n display of Restricted Search Results on the [*] expire or terminate.
\n If, during the Term, Yahoo or a Yahoo Affiliate elects to create a
\n new opportunity for a third party to provide Yahoo with Restricted
\n Search Results for display on any Yahoo Foreign Property (the
\n “International Opportunity”), then Yahoo will provide Overture with
\n written notice that sets forth Yahoo’s business requirements for the
\n International Opportunity. The parties will negotiate in good faith
\n for the purpose of executing an amendment to this Agreement under
\n which Overture will provide the International Opportunity under
\n reasonable terms and conditions. [*]. Upon Overture providing
\n services in a new market under this Agreement, whenever a user of
\n such market conducts a search on Yahoo Search, Yahoo shall display
\n Overture’s search results for that market and not the Overture
\n Results.<\/p>\n
8. Overture’s Payment Obligations. Overture will make payments to Yahoo in
\n accordance with the following:<\/p>\n
8.1 Guaranteed Fixed Payments. Overture will make the applicable
\n Guaranteed Fixed Payment to Yahoo within [*] days after the start of
\n the applicable Quarter according to the schedule set forth below,
\n unless the applicable Guaranteed Fixed Payment is reduced according
\n to Section 8.7 below. If the parties reasonably believe that a
\n Revenue Share Payment will be less than the Guaranteed Fixed Payment
\n in a particular Quarter, then Overture shall pay to Yahoo a [*]
\n reasonable estimate of the next Guaranteed Fixed Payment due (which
\n reasonable estimate shall not bind either party to such number) and,
\n once the parties determine the correct Guaranteed Fixed Payment for
\n that Quarter according to Section 8.7 below, the party that owes
\n money to the other shall pay the same. If Yahoo owes money to
\n Overture, then Overture shall be entitled to reduce its next
\n payment(s) by the amount that is owed until the entire amount has
\n been repaid.<\/p>\n
\n\n ————————————————————
\n Quarter Guaranteed Fixed Payment
\n ————————————————————
\n
\n Q1 $[*]
\n ————————————————————
\n Q2 $[*]
\n ————————————————————
\n Q3 $[*]
\n ————————————————————
\n Q4 $[*]
\n ————————————————————
\n Q5 $[*]
\n ————————————————————
\n Q6 $[*]
\n ————————————————————
\n Q7 $[*]
\n ————————————————————
\n Q8 $[*]
\n ————————————————————
\n Q9 $[*]
\n ————————————————————
\n Q10 $[*]
\n ————————————————————
\n Q11 $[*]
\n ————————————————————
\n Q12 $[*]
\n ————————————————————
\n<\/c><\/s><\/caption>\n<\/table>\n* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
22<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
\n
\n ————————————————————
\n Each Quarter of any Extension Term $[*]
\n ————————————————————
\n<\/c><\/s><\/table>\n 8.2 Revenue Share Payments. Overture will make Quarterly revenue share
\n payments (the “Revenue Share Payments”) to Yahoo based on Gross
\n Revenue in the applicable Quarter according to the schedule set
\n forth below, but only to the extent that the applicable Revenue
\n Share Payment exceeds the applicable Guaranteed Fixed Payment made
\n by Overture (e.g., if the Revenue Share Payment for the applicable
\n Quarter were to exceed the Guaranteed Fixed Payment made by Overture
\n for the applicable Quarter, then Overture would make a payment to
\n Yahoo in the amount of the difference between the applicable Revenue
\n Share Payment and the applicable Guaranteed Fixed Payment). [*].
\n Percentages of Gross Revenue apply solely to Gross Revenue within
\n each of the ranges listed below (i.e., [*]). Revenue Share Payments
\n are due and payable to Yahoo within [*] days after the end of the
\n applicable Quarter.<\/p>\n
[*]<\/p>\n
Overture will retain all revenue that it derives from the Overture
\n Results, except as specifically set forth in this Agreement.<\/p>\n
8.3 Advance Payment; Renewal Fee; Prior Agreement True-Up.<\/p>\n
(a) Advance Payment. On or before the date that is [*] days after
\n the Effective Date, Overture shall pay to Yahoo, as an advance
\n payment, [*] of the Guaranteed Fixed Payment due for [*] as
\n specified in Section 8.1 above (the “Advance Payment”). If
\n this Agreement is terminated prior to the end of the [*], then
\n Yahoo will apply the Advance Payment to any amount owed by
\n Overture to Yahoo hereunder. If the Advance Payment is greater
\n than the amount owed by Overture to Yahoo hereunder, then the
\n difference between the amount of the Advance Payment and the
\n amount owed by Overture to Yahoo hereunder shall be refunded
\n to Overture within [*] days after the effective date of
\n termination.<\/p>\n
(b) Renewal Fee. If Yahoo irrevocably exercises its First Option
\n (as defined below) according to Section 10 below and so
\n notifies Overture in writing no later than April 30, 2004,
\n then Overture shall pay to Yahoo a renewal fee in the amount
\n of $2,000,000 within 60 days after Yahoo’s notice.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
23<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
(c) Prior Agreement True-Up. The parties acknowledge and agree
\n that, under the Prior Agreement and in consideration of
\n Yahoo’s performance under the Prior Agreement, Overture owes
\n additional fees in the amount of $[*] (the “True-Up Payment”).
\n Overture shall pay the True-Up Payment to Yahoo within [*]
\n days after the Effective Date.<\/p>\n
8.4 Tracking; Reporting.<\/p>\n
(a) Tracking. Yahoo will include [*] search URLs or other source
\n feed indicators provided by Overture (the “Tags”) for (i) [*];
\n (ii) Yahoo Search Results Pages within the Yahoo Network
\n within which Overture Results are displayed and (iii) any
\n search service testing performed by Yahoo related to the
\n Overture Results. Overture will use the Tags solely for [*].<\/p>\n
(b) Overture Reporting. Overture will be responsible for tracking
\n and calculating Gross Revenue and Revenue Share Payments.
\n Overture will provide Yahoo a monthly report that sets forth
\n in reasonable detail the information listed in Exhibit F (the
\n “Overture Reports”) in a format to be mutually agreed upon by
\n the parties. All reports provided hereunder will be
\n accompanied by a certificate of accuracy, signed by Overture’s
\n Chief Financial Officer or similar officer with responsibility
\n for the reporting function.<\/p>\n
(c) Yahoo Reporting. Yahoo will provide Overture with access to
\n either offline reports or an online database (and each of
\n which will be deemed Yahoo Search Query Reports to the extent
\n reduced to tangible form by or for Overture) that sets forth
\n Yahoo’s calculation of the Yahoo Search Queries, Impressions
\n and “next” button Yahoo Search Queries delivered hereunder in
\n the aggregate, as well as the number and percentage of
\n Timeouts (as that term is defined in the Service Level
\n Agreement attached hereto as Exhibit A) and the number of
\n times that Yahoo displayed an impression that was not in
\n compliance with the terms of this Agreement. The Impression
\n information shall be reflected in the on-line reporting
\n database within 48 hours. In addition, with respect to the
\n Yahoo Results and Exclusive Results, Yahoo will provide
\n Overture with a Yahoo Search Query Report that sets forth in
\n reasonable detail monthly Impressions for the Yahoo Results
\n and Exclusive Results in the aggregate and the aggregate
\n information and data that falls within the same categories as
\n those listed in Exhibit F for which Overture must provide
\n information and data about the Overture Results (e.g., total
\n clicks, average cost per click and average click-through
\n rate). All reports provided hereunder will be accompanied by a
\n certificate of accuracy, signed by Yahoo’s Chief Technology
\n Officer or similar officer with responsibility for the
\n reporting function.<\/p>\n
(d) `Bot Traffic. Yahoo will implement a tracking solution that
\n tracks the number of Impressions (i.e., a tracking solution
\n that determines which Yahoo Search Queries were performed by
\n U.S. Users, thereby qualifying as Yahoo Search Queries, and
\n which search queries were performed by `bots, metaspiders,
\n macro programs, Internet agents, any other automated means, or
\n by Yahoo as part of any testing in accordance with the
\n subsection (e) below and the Service Level Agreement).<\/p>\n
(e) Mutual Exchange of Information. The parties hereby agree to
\n negotiate in good faith for [*] days following the Effective
\n Date to provide an exchange of information during the Term
\n that (i) enables either Overture to develop its own reasonable
\n estimates of `bot traffic in addition to the numbers reported
\n in the Yahoo Search Query Reports or Yahoo to develop its own
\n marketplace for the Yahoo Results and Exclusive Results, (ii)
\n does not violate any law or regulation affecting user privacy,
\n (iii) provides contractual assurances to each party that such
\n information will not be used for any purpose other than those
\n set forth in subsection (i) above, and (iv) provides standards
\n for storing and destroying such information. The parties
\n acknowledge and agree that the goal of this Section 8.4(e) is
\n to exchange that information<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
24<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
reasonably necessary for each party to administer this
\n Agreement on a timely basis and to mutually determine relative
\n fault for adjustments to the Estimated Yahoo Payment and the
\n Guaranteed Fixed Payments under Section 8.7 below. Any failure
\n to complete such negotiations will trigger an Escalation Event
\n pursuant to Section 16.5(a) below.<\/p>\n
(f) Testing. Yahoo agrees to (i) identify search queries submitted
\n by Yahoo in connection with any test conducted by Yahoo in
\n accordance with the Service Level Agreement as “test” queries
\n by marking them as such in a data field at the time of
\n submission; and (ii) include a total of these “test” queries
\n in the Yahoo Search Query Reports.<\/p>\n
8.5 Mutual Audit Rights. Each party (the “Auditing Party”), at its own
\n expense, will be entitled to retain a reputable, independent
\n certified public accounting firm reasonably acceptable to the other
\n party (the “Audited Party”) solely for the purpose of auditing, at a
\n mutually agreed upon time during normal business hours, those
\n records of the Audited Party that relate to the calculation of `bot
\n traffic, Click-Through Rate, Price Per Click, Impressions, Yahoo
\n Results, U.S. Users, Gross Revenue or the Revenue Share Payments.
\n Prior to an audit, the Auditing Party will require the certified
\n public accounting firm (the “Auditor”) to sign a confidentiality
\n agreement reasonably acceptable to the Audited Party, and the
\n results of the audit will be deemed “Confidential Information”. Such
\n audit shall be conducted in accordance with generally accepted
\n auditing standards and the Auditor will be entitled to disclose to
\n the Auditing Party only whether or not the Audited Party is in
\n compliance and the amount of any non-compliance, if any, and will be
\n precluded from disclosing any other Confidential Information to the
\n Auditing Party without written consent of the Audited Party. If an
\n audit reveals an underpayment, then the Audited Party will
\n immediately make payment to the Auditing Party in the amount of the
\n underpayment [*]. If an audit reveals an underpayment or
\n miscalculation of more than 10%, then the Audited Party will pay the
\n reasonable cost of that audit. Either party shall only be entitled
\n to [*] during the Term, which will apply to the prior [*] under the
\n Agreement. Upon request by the Auditor, Yahoo shall provide the
\n Auditor access to its query logs to confirm compliance with the
\n Guaranteed Impressions of this Agreement.<\/p>\n
8.6 Payment Mechanics. Overture will make payments to Yahoo in U.S.
\n dollars via wire transfer into Yahoo’s main account according to the
\n instructions set forth below:<\/p>\n
[*]<\/p>\n
8.7 Estimated Yahoo Payment and Guaranteed Fixed Payment Reductions.<\/p>\n
(a) Principles. The principles below convey the shared
\n understanding of the parties of how economic value is
\n generated and how actions by the parties can change the rate
\n of economic value creation:<\/p>\n
(1) [*] is responsible for Impressions as modeled in this
\n Agreement.<\/p>\n
(2) [*] is responsible for Coverage as modeled in this
\n Agreement.<\/p>\n
(3) [*] is responsible for PPC as modeled in this
\n Agreement.<\/p>\n
[*] based its PPC model on [*]. [*] may impact PPC in a
\n number of different ways (but the parties recognize that
\n such ways may or may not adversely affect PPC) which
\n will be considered by the parties in<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
25<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
determining relative fault in their discussions and in
\n third party arbitration. These ways include (but are not
\n limited to) by [*].<\/p>\n
The PPC on [*] is one indicator of the degree to which
\n [*] is achieving the PPC for which it is responsible.
\n [*].<\/p>\n
(4) [*] is responsible for CTR as modeled in this Agreement.<\/p>\n
[*] based its CTR model on the [*]. [*] may impact CTR
\n in a number of different ways (but the parties recognize
\n that such ways may or may not adversely affect CTR)
\n which will be considered by the parties in determining
\n relative fault in their discussions and in third party
\n arbitration. These ways include (but are not limited to)
\n [*] and [*] may impact CTR through [*].<\/p>\n
(b) Estimated Yahoo Payment. Once a Measurement Period is
\n triggered, the Estimated Yahoo Payment and Guaranteed Fixed
\n Payment Adjustment Process set forth in Exhibit K will be
\n followed. If an adjustment in the Estimated Yahoo Payment is
\n required, then the following formula will be used to determine
\n that adjustment:<\/p>\n
[*]<\/p>\n
(c) Credit for Guaranteed Fixed Payment. If the Revenue Share
\n Payment is less than the Guaranteed Fixed Payment in Quarter
\n X, then Overture will be credited toward the Guaranteed Fixed
\n Payment in Quarter Y an amount (the “Credit”) = [*]:<\/p>\n
(1) [*], or
\n (2) [*].<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
26<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
If the above calculation occurs during the final Quarter of
\n the Agreement (inclusive of any Extension Terms), then the
\n Term of the Agreement will be extended until the actual
\n Revenue Share Payment is equal to the Credit. For clarity,
\n [*]. If the parties mutually agree not to extend the Term as
\n set forth herein, then Yahoo will pay the amount of the Credit
\n to Overture within [*] days after the expiration of the
\n Agreement.<\/p>\n
(d) Measurement Period. A Measurement Period is triggered when the
\n [*]. At the time a Measure Period is triggered, the Parties
\n shall determine a fair reserve from the Guaranteed Fixed
\n Payment as described in Section 8.1 above.<\/p>\n
By way of example, [*].<\/p>\n
(e) Adjustment. If, in a Quarter subsequent to a Measurement
\n Period, the Yahoo Revenue Share exceeds the Estimated Yahoo
\n payment for that Quarter (as adjusted, if applicable), then
\n Overture will reset the Estimated Yahoo Payment and the
\n Guaranteed Fixed Payment for the subsequent Quarter to the
\n level calculated using the formula in Section 8.7(b) above,
\n subject to the following exceptions:<\/p>\n
(1) To the extent that the Guaranteed Fixed Payment is
\n adjusted upwards [*].<\/p>\n
(2) The Guaranteed Fixed Payment will not be adjusted
\n upwards unless the actual revenue share to Yahoo is
\n greater than or equal to [*]% of Estimated Yahoo Payment
\n for a given Quarter.<\/p>\n
8.8 Late Payments. Any Guaranteed Fixed Payment or undisputed Revenue
\n Share Payment that is paid more than [*] days late will bear
\n interest at the rate of [*]% per month.<\/p>\n
8.9 [*]<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
27<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
9. Impressions.<\/p>\n
9.1 Deliveries. Yahoo will deliver the Guaranteed Impressions for each
\n Quarter, except that Yahoo will be deemed to have delivered the
\n Guaranteed Impressions for any Quarter in which [*] for that
\n Quarter. Additionally, if [*], then Yahoo will be deemed to have
\n delivered the Guaranteed Impressions for that Quarter, regardless of
\n the number of Impressions actually delivered. For clarity, Yahoo
\n will continue to deliver Impressions hereunder, by virtue of
\n delivering each and every Yahoo Search Query to Overture according
\n to Section 3.2 above, even if Yahoo has delivered the Guaranteed
\n Impressions for a particular Quarter. For additional clarity, the
\n fact that the Guaranteed Impressions are deemed delivered hereunder
\n will not preclude the parties from considering Impressions in
\n connection with an adjustment under Section 8.7 above.<\/p>\n
9.2 Remedy, Make-Good. If Yahoo does not deliver the Guaranteed
\n Impressions within the applicable Quarter, then it will “make good”
\n the shortfall by extending its obligations hereunder at the end of
\n the Initial Term or the end of the applicable Extension Term, if
\n any, until it delivers the Guaranteed Impressions.<\/p>\n
10. Yahoo’s Option to Extend. Yahoo shall have two options to extend the Term,
\n each of which shall extend the Term by an additional two or three years,
\n as determined by Yahoo. The first option to extend (“First Option”), if
\n exercised by Yahoo, shall extend the Term for a period commencing on May
\n 1, 2005 and continuing until either April 30, 2007 or April 30, 2008 (an
\n “Extension Term”), depending on whether Yahoo chooses the two year option
\n or three year option. In order for Yahoo to exercise the First Option,
\n Yahoo must notify Overture in writing prior to [*] of its desire to
\n exercise such option. The second option to extend (“Second Option”), if
\n exercised by Yahoo, shall extend the Term for a period commencing on the
\n date on which the first Extension Term expires (i.e., either April 30,
\n 2007 or April 30, 2008) and continuing for a period of either two or three
\n years from <\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
28<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
the date on which the first Extension Term expires, depending on whether
\n Yahoo chooses the two year option or three year option. In order for Yahoo
\n to exercise the Second Option, Yahoo must have exercised the First Option
\n and Yahoo must notify Overture in writing prior to the date that is [*]
\n prior to the end of the First Option of its desire to exercise the Second
\n Option. All notices of exercise hereunder must disclose whether Yahoo is
\n extending the Term for two years or three years.<\/p>\n
11. Representations and Warranties.<\/p>\n
11.1 Overture Warranties. Overture represents and warrants that it has
\n full power and authority to enter into this Agreement. Overture
\n further represents and warrants to Yahoo that Overture’s total costs
\n for credit card charges and bad debt for the first 9 months of 2001
\n was [*]% of amounts earned by Overture for Bidded Clicks. Bad debt
\n for the purpose of this Agreement consists of matters which Overture
\n categorizes in its normal course of business as uncollectible
\n revenues and invoiced revenues that are not collected. Overture
\n uncollectible revenues consists of the following: credit card fraud;
\n adjustments for system and other errors in billing on a client
\n account; adjustments made to advertiser’s accounts for disputed
\n billings; and adjustments [*] after processing through our normal
\n click-through protection filters. Overture finally represents and
\n warrants that, as of the Effective Date and at all times throughout
\n the Term, it has all consents, approvals, licenses and permissions,
\n necessary for Overture to perform all of its obligations hereunder
\n and for Yahoo to exercise all of its rights hereunder.<\/p>\n
11.2 Yahoo Warranties. Yahoo represents and warrants that it has full
\n power and authority to enter into this Agreement.<\/p>\n
11.3 Disclaimer. EXCEPT AS SET FORTH IN SECTION 13, NEITHER PARTY WILL BE
\n RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES, INCLUDING BUT
\n NOT LIMITED TO ADVERTISERS, OR FOR ANY THIRD PARTY WEB SITES THAT
\n CAN BE LINKED TO OR FROM THAT PARTY’S WEB SITE. NEITHER PARTY
\n NOR SUCH PARTY’S LICENSORS MAKE ANY OTHER WARRANTY OF ANY KIND,
\n WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT
\n LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
\n USE AND NONINFRINGEMENT.<\/p>\n
12. Confidentiality.<\/p>\n
12.1 Definition. “Confidential Information” means any information
\n disclosed by either party to the other party during the Term (and
\n any renewals terms), either directly or indirectly, in writing,
\n orally or by inspection of tangible objects, which is designated as
\n “Confidential,” “Proprietary” or some similar designation. All of
\n the terms of this Agreement, including but not limited to all
\n Overture Reports and all Yahoo Search Query Reports, will be deemed
\n “Confidential.” Information communicated orally will be considered
\n Confidential Information if such information is designated as being
\n Confidential Information at the time of disclosure and confirmed in
\n writing as being Confidential Information within 20 days after the
\n initial disclosure. Confidential Information will not, however,
\n include any information that (a) was publicly known and made
\n generally available in the public domain prior to the time of
\n disclosure by the disclosing party; (b) becomes publicly known and
\n made generally available after disclosure by the disclosing party to
\n the receiving party through no action or inaction of the receiving
\n party; (c) is already in the possession of the receiving party at
\n the time of disclosure by the disclosing party; (d) is obtained by
\n the receiving party from a third party without a breach of such
\n third party’s obligations of confidentiality; or (e) is
\n independently developed by the receiving party without use of or
\n reference to the disclosing party’s Confidential Information.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
29<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
12.2 Restrictions. Other than the rights expressly granted under Section
\n 2, the receiving party agrees (a) not to disclose any Confidential
\n Information to any third parties; (b) not to use any Confidential
\n Information for any purposes other than to exercise its rights or
\n perform its obligations under this Agreement; and (c) to keep the
\n Confidential Information confidential using the same degree of care
\n the receiving party uses to protect its own confidential
\n information, as long as it uses at least reasonable care. If either
\n party receives a subpoena or other validly issued judicial process
\n requesting, or is required by a government agency (e.g., the
\n Securities and Exchange Commission) to disclose, Confidential
\n Information of the other party, then the receiving party will notify
\n the disclosing party of such request and will reasonably cooperate
\n to seek confidential treatment or to obtain an appropriate
\n protective order to preserve the confidentiality of the Confidential
\n Information. Notwithstanding the foregoing, either party may
\n disclose following notice to the other party, pursuant to a
\n confidentiality agreement no less restrictive than the
\n confidentiality terms hereof, the terms of this Agreement and
\n performance hereunder to third parties for the purpose of due
\n diligence examinations in the context of financings or a potential
\n Change of Control (as defined in Section 15.4). All obligations
\n under this Section 12.2 will survive for a period of [*] after
\n termination or expiration of the Agreement.<\/p>\n
12.3 Press Release. Immediately upon execution of the Agreement, the
\n parties will jointly issue the press release attached hereto as
\n Exhibit D, the content of which has been mutually agreed upon by
\n both parties. Further, the parties agree that Overture and Yahoo or
\n the applicable Yahoo Affiliate and Overture Affiliate will jointly
\n issue a press release, the timing of which will be mutually agreed
\n upon, relating to any amendment of this Agreement to incorporate an
\n International Opportunity in accordance with Section 7.4 above.
\n Neither party shall issue any additional press releases in
\n connection with this Agreement without the other party’s prior
\n written consent, which will not be unreasonably withheld. Excluding
\n disclosures that are required by law, neither party will disclose
\n any other terms of this Agreement to any third party via any medium
\n without the prior approval of the other party. When determining
\n whether a disclosure is “required by law,” each party may rely on
\n its legal counsels’ advice on such matters. Notwithstanding the
\n foregoing, (a) Overture shall have the right to notify its
\n advertisers and potential advertisers of the general nature of this
\n transaction (including Overture’s estimate of the increase in
\n traffic) pursuant to the general provisions of Exhibit I in order to
\n encourage Overture’s advertisers to increase their spending with
\n Overture and to encourage potential advertisers to advertise with
\n Overture; and (b) both parties shall be entitled to (i) provide
\n additional disclosures containing any and all information contained
\n in any previously agreed upon press release; and (ii) list the other
\n party’s name in advertising and other materials (provided that such
\n language shall not disparage the other party) according to the other
\n party’s then-current brand usage guidelines, which the other party
\n will make available upon request.<\/p>\n
13. Indemnification.<\/p>\n
13.1 Overture Indemnification. Overture, at its own expense, will
\n indemnify, defend and hold harmless Yahoo and Yahoo Affiliates,
\n employees, representatives and agents from and against any claim,
\n demand, action, investigation or other proceeding, including but not
\n limited to all damages, losses, liabilities, judgments, costs and
\n expenses arising therefrom, brought by any third party against Yahoo
\n (collectively, a “Yahoo Claim”) to the extent that the Yahoo Claim
\n is based on, or arises out of an allegation that Overture’s
\n performance hereunder (including but not limited to Overture’s
\n practice of any method under the Overture Licensed IP by which
\n Overture assembles and orders Overture Results for delivery to Yahoo
\n hereunder) or the Licensed Materials violates any applicable law,
\n rule or regulation or infringe the rights of any third party,
\n including but not limited to intellectual property rights, privacy
\n and publicity rights, claims of defamation, false or deceptive
\n advertising claims and consumer fraud.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
30<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
13.2 Yahoo Indemnification. Yahoo, at its own expense, will indemnify,
\n defend and hold harmless Overture and Overture Affiliates,
\n employees, representatives and agents from and against any claim,
\n demand, action, investigation or other proceeding, including but not
\n limited to all damages, losses, liabilities, judgments, costs and
\n expenses arising therefrom, brought by any third party against
\n Overture (collectively, an “Overture Claim”) to the extent that the
\n Overture Claim is based on, or arises out of an allegation that
\n Yahoo’s performance hereunder or the Yahoo Marks violate any
\n applicable law, rule or regulation or infringe the rights of any
\n third party, including but not limited to intellectual property
\n rights, privacy and publicity rights, claims of defamation, false or
\n deceptive advertising claims and consumer fraud.<\/p>\n
13.3 Indemnification Procedure. All indemnity obligations arising under
\n this Section 13 will be subject to the following requirements: (a)
\n the indemnified party will provide the indemnifying party with
\n prompt written notice of any Yahoo Claim, in the case that Yahoo is
\n the indemnified party, or any Overture Claim, in the case that
\n Overture is the indemnified party, (as applicable, a “Claim”),
\n except that failure to give prompt notice will not waive any rights
\n of the indemnified party to the extent that the rights of
\n indemnifying party are not materially prejudiced thereby; (b) the
\n indemnified party will permit the indemnifying party to assume and
\n control the defense of the Claim upon the indemnifying party’s
\n written acknowledgment of its obligation to indemnify; (c) upon the
\n indemnifying party’s written request, and at no expense to the
\n indemnified party, the indemnified party will provide the
\n indemnifying party with all available information and assistance
\n reasonably necessary for the indemnifying party to defend the Claim.
\n The indemnifying party will not enter into any settlement or
\n compromise of the Claim (except a settlement or compromise that (i)
\n is full and final with respect to the Claim; (ii) does not obligate
\n the indemnified party to act or to refrain from acting in any way;
\n (iii) does not contain an admission of liability on the part of the
\n indemnified party; (iv) dismisses the Claim with prejudice; and (v)
\n is subject to confidentiality, such that no party may disclose the
\n terms of the settlement or compromise without the indemnified
\n party’s prior written consent) without the indemnified party’s prior
\n written approval, which shall not be unreasonably withheld.<\/p>\n
14. Limitation of Liability. EXCEPT FOR INDEMNITY OBLIGATIONS ARISING UNDER
\n SECTION 13 ABOVE, ANY BREACH OF SECTION 12.2 (CONFIDENTIALITY —
\n RESTRICTIONS) OR ANY WILLFUL, UNCURED AND MATERIAL BREACH OF THIS
\n AGREEMENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS AFFILIATES BE
\n LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT, INCIDENTAL,
\n CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THE SUBJECT
\n MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF DATA,
\n BUSINESS, PROFITS OR GOODWILL AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
\n OR SERVICES, REGARDLESS OF THE LEGAL THEORIES AND EVEN IF THAT PARTY HAS
\n BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL
\n YAHOO’S AGGREGATE, CUMMULATIVE LIABILITY TO OVERTURE UNDER THIS AGREEMENT
\n EXCEED THE SUM OF $[*] AND ANY AMOUNTS CREDITABLE OR REFUNDABLE TO
\n OVERTURE UNDER THIS AGREEMENT PURSUANT TO SECTION 8, EXCEPT THAT YAHOO’S
\n AGGREGATE, CUMMULATIVE LIABILITY TO OVERTURE UNDER THIS AGREEMENT WILL NOT
\n EXCEED THE SUM OF $[*] AND ANY AMOUNTS CREDITABLE OR REFUNDABLE TO
\n OVERTURE UNDER THIS AGREEMENT PURSUANT TO SECTION 8 IN THE EVENT OF
\n YAHOO’S WILLFUL, EFFICIENT BREACH OF THIS AGREEMENT. IN NO EVENT WILL
\n OVERTURE’S AGGREGATE, CUMMULATIVE LIABILITY TO YAHOO UNDER THIS AGREEMENT
\n EXCEED THE SUM OF $[*] AND ANY AMOUNTS PAST DUE UNDER THIS AGREEMENT
\n PURSUANT TO SECTION 8, EXCEPT THAT OVERTURE’S AGGREGATE, CUMMULATIVE
\n LIABILITY TO YAHOO UNDER THIS AGREEMENT WILL NOT EXCEED THE SUM OF $[*]
\n AND ANY AMOUNTS PAST DUE UNDER THIS AGREEMENT PURSUANT TO SECTION 8 IN THE
\n EVENT OF OVERTURE’S WILLFUL, EFFICIENT BREACH OF THIS AGREEMENT.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
31<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
15. Term.<\/p>\n
15.1 Term. This Agreement will become effective as of the Effective Date
\n and, unless terminated or renewed as set forth herein, will remain
\n effective for the Term.<\/p>\n
15.2 Termination. If either party breaches this Agreement in any material
\n respect, and that party does not cure its breach within 30 days
\n after written notice by the non-breaching party of its breach, then
\n the non-breaching party will be entitled to terminate this Agreement
\n immediately upon written notice to the breaching party after failure
\n to cure within those 30 days.<\/p>\n
15.3 Termination for Cause. Following the first year of this Agreement,
\n Yahoo will be entitled to terminate this Agreement upon [*] prior
\n written notice (the “Termination Notice”) to Overture if the [*] is
\n less than [*] for [*] consecutive Quarters; provided that the reason
\n the [*] is less than [*] must be determined to be Overture’s
\n responsibility by applying the principles and provisions described
\n in Section 8.7 above. Upon receipt of the Termination Notice,
\n Overture shall have the right to increase the Guaranteed Fixed
\n Payment from its current level of approximately [*] to [*] in which
\n case the Agreement shall continue as if no Termination Notice had
\n been delivered.<\/p>\n
15.4 Termination for Change of Control. For purposes of this provision,
\n “Change of Control” means (a) the direct or indirect acquisition
\n (except for transactions described in clause (b) of this paragraph
\n below), whether in one or a series of transactions by any person (as
\n such term is used in Section 13(d) and Section 14(d)(2) of the
\n Securities Exchange Act of 1934, as amended (the “Exchange Act”)),
\n or related persons (such person or persons, an “Acquirer”)
\n constituting a group (as such term is used in Rule 13d-5 under the
\n Exchange Act), other than in all cases Yahoo and\/or controlled
\n affiliates of, or an entity that controls 50% or more of, Yahoo, of
\n (i) beneficial ownership (as defined in the Exchange Act) of issued
\n and outstanding shares of stock of Overture, the result of which
\n acquisition is that such person or such group possesses in excess of
\n 50% of the combined voting power of all then-issued and outstanding
\n stock of Overture, or (ii) the power to elect, appoint, or cause the
\n election or appointment of at least a majority of the members of the
\n board of directors of Overture (or such other governing body in the
\n event Overture or any successor entity is not a corporation); (b) a
\n merger or consolidation of Overture with a person or a direct or
\n indirect subsidiary of such person, other than in all cases Yahoo
\n and\/or controlled affiliates of, or an entity that controls 50% or
\n more of, Yahoo, provided that the result of such merger or
\n consolidation, whether in one or a series of related transactions,
\n is that the holders of the outstanding voting stock of Overture
\n immediately prior to such consummation do not possess, whether
\n directly or indirectly, immediately after the consummation of such
\n merger or consolidation, in excess of 50% of the combined voting
\n power of all then-issued and outstanding stock of the merged or
\n consolidated person, its direct or indirect parent, or the surviving
\n person of such merger or consolidation; (c) the stockholders of
\n Overture approve a plan of complete liquidation of Overture; or (d)
\n a sale or disposition, whether in one or a series of transactions,
\n of all or substantially all of Overture’s assets. Overture will
\n provide Yahoo with prompt written notice following (or at Overture’s
\n election, up to [*] days prior to) (i) the approval by the
\n Overture board of directors of a transaction that is or is intended
\n to be a Change in Control or (ii) the public announcement (including
\n without limitation by means of a filing pursuant to Section 13D of
\n the Exchange Act) by any third party of its intention to effect a
\n Change in Control of Overture, including without limitation the
\n initiation of a tender offer, proxy fight, consent solicitation or
\n other means designed or intended to effect a Change in Control of
\n Overture. Upon receipt of such notice from Overture, Yahoo will be
\n entitled to the right (the “Change of Control Right”) to elect in
\n writing (the “Change of Control Election”) to Overture, within [*]
\n days of receipt of such notice, either the “Continue on Revised
\n Financial Terms” option set forth in subpart (a) immediately below
\n or the “Termination; Termination Fee” option set forth in subpart
\n (b) <\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
32<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
immediately below. Notwithstanding anything to the contrary herein,
\n once a Change of Control has been consummated, Yahoo shall have no
\n further rights under this Section 15.4 in respect of a subsequent
\n Change of Control , if any, that may be consummated. The following
\n subparts (a) and (b) are the two choices, one of which Yahoo may
\n elect pursuant to a Change of Control Election (it being understood
\n that if Yahoo does not make an election prior to the end of such
\n [*] day period, then it shall be deemed to have elected the option
\n set forth in subpart (a) below):<\/p>\n
(a) Continue on Revised Financial Terms. Yahoo elects to maintain
\n the Agreement under its terms and conditions, subject to the
\n following adjustment, to become effective immediately prior to
\n the consummation of the Change of Control: Overture will
\n increase the percentage at which it makes Revenue Share
\n Payments hereunder by (1) [*]% (e.g., in year 3 of the Initial
\n Term, the revenue share percentage would increase from [*]% to
\n [*]%) to the extent that the Acquirer is [*] or controlled by
\n one of such entities or any successor to substantially all of
\n the current business of any of such entities (each, a
\n “Designated Company”); or (2) [*]% to the extent that the
\n Acquirer is any entity other than a Designated Company. The
\n term of the increased Revenue Share Payment percentages
\n pursuant to this subpart (a) shall continue from immediately
\n prior to the consummation of the Change of Control until the
\n later of (x) one year following consummation of the Change of
\n Control, and (y) the expiration of the Initial Term (if the
\n Change of Control is consummated during the Initial Term) or
\n the applicable Extension Term (if the Change of Control is
\n consummated during an Extension Term). Notwithstanding the
\n foregoing sentence, to the extent that either (i) the Change
\n of Control occurs after January 1, 2005 and Yahoo has not
\n provided Overture with written notice of Yahoo’s intent to
\n exercise the First Option according to Section 10 above; or
\n (ii) the Change of Control occurs after the date that is six
\n months prior to the end of the First Option and Yahoo has not
\n provided Overture with written notice of Yahoo’s intent to
\n exercise the Second Option according to Section 10 above, the
\n term of the increased Revenue Share Payment percentages
\n pursuant to this subpart (a) shall continue from immediately
\n prior to the consummation of the Change of Control until the
\n expiration of the then-current Term (i.e., the Initial Term in
\n the case of clause (i) above and the first Extension Term in
\n the case of clause (ii) above).<\/p>\n
(b) Termination; Termination Fee. Yahoo elects to terminate the
\n Agreement, in which case the following will become effective
\n immediately prior to the consummation of the Change of
\n Control: the Agreement will terminate and Overture will pay to
\n Yahoo a termination fee of (i) if Acquirer is a Designated
\n Company, then (A) $10,000,000 in cash, payable promptly upon
\n consummation of a Change of Control; and (B) 3% of the
\n outstanding shares of Overture Common Stock, on a fully
\n diluted basis immediately prior to consummation of the Change
\n of Control (calculated on the treasury stock method (utilizing
\n the average closing trading price of shares of Overture for
\n the 10 trading days ending on the day that is two trading days
\n prior to but not including the date of consummation of the
\n Change of Control (the “Ten-Day Average Price”))) which,
\n subject to applicable governmental regulatory approvals and
\n the expiration of applicable waiting periods, shall be issued
\n immediately prior to consummation of a Change of Control; or
\n (ii) if Acquirer is not a Designated Company, then (A)
\n $5,000,000 in cash, payable promptly upon consummation of a
\n Change of Control; and (B) 2% of the outstanding shares of
\n Overture Common Stock, on a fully diluted basis, immediately
\n prior to consummation of the Change of Control (calculated on
\n the treasury stock method as aforesaid) which, subject to
\n applicable governmental regulatory approvals and the
\n expiration of applicable waiting periods, shall be issued
\n immediately prior to consummation of a Change of Control (the
\n shares referred to in clauses (i)(B) and (ii)(B), the
\n “Overture Shares”). Notwithstanding the foregoing, if the
\n Change of Control is the type described in clause (a) of the
\n first paragraph of this Section 15.4, then the obligation of
\n Overture to issue Overture Shares and make payments to Yahoo
\n pursuant to this paragraph shall take effect as promptly as
\n practicable following the Change of Control, rather than
\n immediately prior to or upon the Change of Control. In
\n connection with the issuance of the Overture Shares, the
\n parties will cooperate in the filing of any<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
33<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
applicable regulatory filing pursuant to the Hart-Scott-Rodino
\n Antitrust Improvements Act of 1976, as amended (the “HSR
\n Act”). Overture and Yahoo will share equally any applicable
\n filing fee required in connection with any such HSR Filing.
\n The parties will retain and pay their own legal counsel and
\n other expenses, if any, in connection with such filing. The
\n parties also will use all reasonable efforts to file any
\n applicable regulatory filing promptly, so as to permit the
\n timely issuance of the Overture Shares. In addition, if the
\n Change of Control is the type described in clause (a), (c) or
\n (d) of the first paragraph of this Section 15.4 (a “Non-Merger
\n Change of Control”), unless Yahoo can trade the Overture
\n Shares in the public market without an effective registration
\n statement, Overture will use all reasonable efforts to file
\n and have the SEC promptly declare effective a registration
\n statement pursuant to which the Overture Shares will be fully
\n registered for resale by Yahoo under the Securities Act of
\n 1933, as amended, and any applicable state securities law;
\n following effectiveness of the registration statement, subject
\n to applicable law. Overture will take all reasonable actions
\n to ensure Yahoo’s ability to dispose of the Overture Shares as
\n promptly as desired by Yahoo. If the terms of the issuance of
\n Overture Shares are publicly disclosed by Overture, upon
\n Yahoo’s request, Overture shall take reasonable steps to apply
\n for and obtain a permit for the issuance of the Overture
\n Shares to Yahoo from the California Department of Corporations
\n in the event of a Non-Merger Change of Control.
\n Notwithstanding anything to the contrary herein, in lieu of
\n issuing Overture Shares to Yahoo pursuant to this subpart (b),
\n Overture may elect, in its sole discretion, instead to pay
\n Yahoo cash equal to the market value of such Overture Shares
\n based on the Ten-Day Average Price.<\/p>\n
15.5 Effect of Termination or Expiration. Upon termination or expiration
\n of this Agreement for any reason, (a) except as set forth in Section
\n 2.5 above, all licensed rights granted herein will terminate
\n immediately; (b) Yahoo will immediately cease use of the Licensed
\n Materials; (c) Overture will immediately cease use of the Yahoo
\n Search Query Reports other than as contemplated herein; (d) Yahoo
\n will cease all use of all Overture Reports other than as
\n contemplated herein; and (e) Sections 1, 2.2 (with respect to the
\n covenants to destroy\/certify destruction of information only), 2.3
\n 2.5, 8.1 and 8.2 (with respect to payments accrued during the Term),
\n 8.3, 8.7 (with respect to credits accrued during the Term), 8.8,
\n 9.2, 12-14, 15.5 and 16 of this Agreement will survive. The parties
\n further agree that, in the event of an early termination under this
\n Agreement, each party will be entitled to any fees due or owed to it
\n by the other party (e.g., Overture will be entitled to a pro rata
\n refund of the applicable Guaranteed Fixed Payment in the event of a
\n proper termination of the Agreement by Overture). The remedies
\n stated herein are cumulative and in addition to any remedies
\n available at law or equity, and nothing contained herein shall be
\n deemed to limit either party’s right to pursue any and all such
\n remedies.<\/p>\n
16. Miscellaneous.<\/p>\n
16.1 Notice. Any notice required for or permitted by this Agreement must
\n be in writing and delivered by (a) personal delivery; (b)
\n nationally-recognized overnight courier; (c) certified or registered
\n mail, return receipt requested; or (d) email, telecopy or facsimile
\n transmission, confirmed by concurrent notice delivered by one of the
\n means set forth in subsections (a) — (c) above. All notices will be
\n deemed delivered upon receipt by the receiving party. All notices
\n must be sent (1) to Yahoo at 701 First Avenue, Sunnyvale, California
\n 94089, Attn: Vice President, North American Operations, with a copy
\n to its General Counsel; or (2) to Overture at 74 North Pasadena
\n Avenue, third floor, Pasadena, California 91103, Attn: Vice
\n President Business Affairs. Each party will be entitled to change
\n its address for purposes of this Section 16.1 by providing written
\n notice to the other party in accordance herewith.<\/p>\n
16.2 Assignment; Binding Effect. This Agreement will be binding upon and
\n inure to the benefit of the parties hereto and their permitted
\n successors and assigns, as set forth herein and Section 15.4 <\/p>\n
34<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
above. Neither Overture nor Yahoo may assign this Agreement, or any
\n of its rights hereunder, or delegate any of its duties hereunder
\n without the prior written consent of the other party.
\n Notwithstanding the foregoing, either party may, without the prior
\n written consent of the other party, assign this Agreement to any
\n entity that succeeds to all or substantially all of the assets and
\n liabilities of that assigning party. If an assignment or delegation
\n is made by Overture according to Section 15.4 above, then the terms
\n and conditions set forth in that Section 15.4, including but not
\n limited to all applicable notice periods and remedies, will apply to
\n that assignment or delegation. If an assignment or delegation is
\n made by Yahoo in connection with the sale of all or substantially
\n all of its assets and liabilities, and either (a) the assignee is an
\n Overture Restricted Company; or (b) Overture reasonably determines
\n that the assignee does not have sufficient capital or assets to
\n perform its obligations under this Agreement, then Overture will be
\n entitled to approve the assignment or to terminate this Agreement
\n within 30 days after the date on which the assignee succeeds to all
\n or substantially all of Yahoo’s assets and liabilities. If Overture
\n approves the assignment, then this Agreement will be binding upon
\n and inure to the benefit of Yahoo’s successor or assign.<\/p>\n
16.3 No Third Party Beneficiaries. All rights and obligations of each
\n party hereunder are personal to that party. This Agreement is not
\n intended to benefit, nor shall it be deemed to give rise to, any
\n rights in any third party.<\/p>\n
16.4 Governing Law; Attorneys’ Fees. This Agreement will be governed and
\n construed, to the extent applicable, in accordance with United
\n States law, and otherwise, in accordance with California law,
\n without regard to conflict of law principles. In the event of any
\n material breach by either party of any provision of this Agreement,
\n the non-breaching party will be entitled to suspend its performance
\n hereunder until the breach is cured. The prevailing party in any
\n action arising hereunder will be entitled to recover reasonable
\n expenses, including but not limited to attorneys’ fees.<\/p>\n
16.5 Dispute Resolution.<\/p>\n
(a) Escalation Events. If the parties cannot agree on disputes
\n arising from the determination of a reasonable royalty, the
\n calculation of Impressions, revisions to the Service Level
\n Agreement according to Section 4.3(b), or any other subsequent
\n dialogue provided for under this Agreement, then the dispute
\n will be subject to escalation (an “Escalation Event”). An
\n Escalation Event first will be discussed in good faith by the
\n parties at a mutually convenient location in an attempt to
\n resolve the Escalation Event amicably, in whole or in part. A
\n senior director or vice president of business development with
\n decision-making authority (“Senior Business People”) will
\n participate in these discussions. If the Senior Business
\n People cannot resolve the Escalation Event within [*] days,
\n then each party will designate a senior executive with
\n decision-making authority (“Senior Executive”) to meet and
\n confer in an effort to resolve the Escalation Event. If the
\n Senior Executives cannot resolve the Escalation Event within
\n [*] days, then the chief executive officers of the respective
\n parties (“CEO”) will meet and confer in an effort to resolve
\n the Escalation Event. Any decisions and resolutions of the
\n Senior Business People, Senior Executives or CEOs will be
\n final and binding on the parties once reduced to writing and
\n signed by the parties. If the procedures outlined under this
\n Section 16.5(a) fail to resolve an Escalation Event, then the
\n parties hereby agree to submit the issue to binding
\n arbitration pursuant to Section 16.5(b), except as set forth
\n in Section 2.5(g) [?].<\/p>\n
(b) Arbitration, Equitable Relief. All controversies, disputes,
\n differences or claims between the parties arising out of or
\n relating to this Agreement (each, a “Dispute”), including but
\n not limited to any unresolved Escalation Events and any
\n question concerning the existence, validity, termination,
\n interpretation, performance or enforcement of this Agreement,
\n will be finally and exclusively settled by binding arbitration
\n in accordance with the following:<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
35<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
(1) Submission; Rules. Either party will be entitled to
\n submit a Dispute to JAMS for binding arbitration in San
\n Francisco, California or Los Angeles, California by
\n providing written notice to the other party and to JAMS.
\n Discovery will be conducted in accordance with Rules 26
\n through 36 and Rule 45 of the Federal Rules of Civil
\n Procedure.<\/p>\n
(2) Appointment of Panel. The parties will assemble a panel
\n of 3 arbitrators (the “Panel”) as follows: Each party
\n will nominate one arbitrator, and those 2 arbitrators
\n will select a chairperson of the Panel. Each arbitrator
\n on the Panel must have at least 5 years senior
\n management or consulting experience in the on-line
\n services industry and must not have been employed by or
\n a supplier to either party during the preceding 2 years.<\/p>\n
(3) Timing. The parties will undertake commercially
\n reasonable efforts to conclude any arbitral proceedings
\n within 180 calendar days from the date on which the last
\n arbitrator accepts his or her appointment; provided,
\n however, that if the arbitral award is not issued within
\n such 180 calendar days, then the arbitration proceedings
\n will continue until an award is made.<\/p>\n
(4) Legal and Equitable Remedies. Neither party will be
\n entitled to file a legal action against the other party
\n until the arbitration is concluded, but nothing herein
\n prohibits a party from requesting temporary injunctive
\n relief from any court of competent jurisdiction. Either
\n party may at any time apply to a court of competent
\n jurisdiction for equitable relief.<\/p>\n
(5) Decision. Any decision or award of the Panel will be
\n based solely on the terms of this Agreement and the
\n facts and legal arguments presented at the hearing and
\n any documents presented in accordance with the discovery
\n rules. The Panel will issue a written decision that sets
\n forth its rationale in reasonable detail. Any award
\n rendered by the Panel may be enforced by any court of
\n competent jurisdiction. The Panel will have the
\n authority to award specific performance or an injunction
\n to the prevailing party, or to make an award of direct
\n damages, but will have no right to grant special,
\n punitive or exemplary damages, or indirect or
\n consequential damages unless such amounts are allowed
\n under this Agreement.<\/p>\n
16.6 Independent Contractors. The parties are independent contractors
\n with respect to the subject matter of this Agreement. This Agreement
\n will not be construed to create a joint venture or partnership
\n between the parties. Neither party will be deemed to be an employee,
\n agent, partner or legal representative of the other party for any
\n purpose, and neither party will have any right, power or authority
\n to create any obligation or responsibility on behalf of the other
\n party.<\/p>\n
16.7 Force Majeure. Neither party will be liable hereunder (and their
\n performance shall be excused under this Agreement) by reason of any
\n failure or delay in the performance of its obligations (except for
\n the payment of money) on account of strikes, shortages, riots,
\n insurrection, terrorism, fires, flood, storm, explosions,
\n earthquakes, Internet outages beyond the reasonable control of such
\n party, acts of God, war, governmental action, or any other cause
\n that is beyond the reasonable control of such party.<\/p>\n
16.8 Compliance with Law. Each party will be responsible for compliance
\n with all applicable laws, rules and regulations, if any, related to
\n the performance of its obligations under this Agreement.<\/p>\n
16.9 Entire Agreement. This Agreement, including all exhibits attached
\n hereto, constitutes the entire agreement between the parties with
\n respect to the subject matter hereof and supersedes any prior or
\n contemporaneous proposals, whether written or oral, with respect to
\n the subject matter hereof. Any amendments to this Agreement must be
\n in writing and executed by an officer of each party.<\/p>\n
36<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
16.10 Counterparts. This Agreement may be entered into by each party in
\n separate counterparts, which will constitute one fully executed
\n Agreement upon execution by both Yahoo and Overture.<\/p>\n
16.11 Severability. If any provision of this Agreement is held or made
\n invalid or unenforceable for any reason, this Agreement will be
\n construed as if that provision had never been contained herein, but
\n considering the original intentions of the parties.<\/p>\n
16.12 Waiver. The terms or covenants of this Agreement may be waived only
\n by a written instrument executed by a duly authorized representative
\n of the party waiving compliance. The failure of either party at any
\n time or times to require performance of any provision hereof will in
\n no manner affect the right at a later time to enforce the same. No
\n waiver by either party of the breach of any term or covenant
\n contained in this Agreement, whether by conduct or otherwise, in any
\n one or more instances, will be deemed to be, or construed as, a
\n further or continuing waiver of any such breach or a waiver of the
\n breach of any other term or covenant contained in this Agreement.<\/p>\n
16.13 Section Headings. The section headings contained herein are for
\n reference purposes only and do not in any way affect the meaning or
\n interpretation of this Agreement.<\/p>\n
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]<\/p>\n
37<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
\nDate.<\/p>\n
“Yahoo” “OVERTURE”<\/p>\n
YAHOO! INC., A DELAWARE CORPORATION OVERTURE SERVICES, INC., A
\n DELAWARE CORPORATION<\/p>\n
By: \/s\/ [Signature illegible] By: \/s\/ Todd Tappin
\n ————————— ———————-<\/p>\n
Name: Name: Todd Tappin<\/p>\n
Title: Title: CFO<\/p>\n
38<\/p>\n
EXECUTION<\/p>\n
EXHIBIT A<\/p>\n
SERVICE LEVEL AGREEMENT<\/p>\n
The purpose of this Service Level Agreement (the “SLA”) is to describe
\nthe service level commitments that the parties are obligated to deliver under
\nthis Agreement. The sections are as follows:<\/p>\n
I. Definitions<\/p>\n
II. Contacts<\/p>\n
III. Support Procedures<\/p>\n
IV. Operational Metrics<\/p>\n
I. DEFINITIONS<\/p>\n
A. Definitions.<\/p>\n
(i) Aggregate Response Time. This value is the sum of the Internal
\n Overture Response Time and the Network Response Time.<\/p>\n
(ii) Availability. The percentage of the total properly formatted
\n Yahoo Search Queries (as defined in the Agreement) for which
\n Overture responds (either with a “no results delivered” response
\n or a response in the form of properly formatted Overture
\n Results, regardless of whether delivered within the Critical
\n Threshold or not (i.e., Timeouts are irrelevant to the
\n calculation of Availability to the extent that a response in the
\n form set forth herein is ultimately delivered by Overture)).
\n Load balancing must be in effect for the Availability terms to
\n be applicable. Catastrophic Problem. A Problem that persists for
\n a period of [*] or more during Peak Hours and [*] or more during
\n Non-Peak Hours.<\/p>\n
(iii) Implementation Change. A request by Yahoo to incorporate a new
\n feature or enhance an existing feature of the Overture Services
\n provided to Yahoo under the Agreement to which this SLA is
\n attached as an Exhibit.<\/p>\n
(iv) ICMP. An Internet Control Message Protocol used for, among other
\n things, determining whether a particular computer is attached to
\n the Internet and working properly.<\/p>\n
(v) Internal Overture Response Time. The period of time beginning at
\n the time of Overture’s receipt of a Yahoo Search Query from
\n Yahoo to completion of send by Overture, as measured by
\n Overture’s NOC.<\/p>\n
(vi) Minor Problem. A cosmetic display issue which allows the major
\n elements of Overture results to display, but causes textual
\n irregularities (e.g., an umlaut not displaying properly). For
\n clarity, [*].<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
Confidential<\/p>\n
Page 1<\/p>\n
(vii) Network Response Time. The period of time required for an ICMP
\n ping packet to complete a round trip cycle between Yahoo and
\n Overture. Network Response Time will be measured from each
\n party’s data center to the other party’s data center.<\/p>\n
(viii) NOC. Network Operations Center.<\/p>\n
(ix) Non-Peak Hours. Non-Peak Hours shall mean all hours outside of
\n Peak Hours.<\/p>\n
(x) Normal Maintenance. Ongoing scheduled maintenance.<\/p>\n
(xi) Peak Hours. Peak Hours shall mean [*].<\/p>\n
(xii) Problem. An error, bug, incompatibility or malfunction, which
\n renders the Overture Results unavailable to or unuseable by
\n Yahoo for [*] consecutive [*] or more. A “Problem” can include,
\n but is not limited to, instances of [*], but does not include
\n circumstances where Yahoo or Overture is not available to the
\n Internet at large due to a force majeure event (as described in
\n Section 16.7 of the Agreement to which this document is
\n attached).<\/p>\n
(xiii) Problem Resolution. A correction, patch, fix, alteration or
\n Temporary Workaround that minimizes the effect of a Problem,
\n Severe Problem, or Catastrophic Problem restoring the system to
\n the levels set forth in this SLA within the response times set
\n forth in this SLA.<\/p>\n
(xiv) Results Set. A Results Set will consist of the number of
\n Overture Results required to be displayed pursuant to the
\n Agreement, or a “No Results Delivered” notification, if
\n applicable, which Results Set is properly formatted in a
\n mutually agreed XML format.<\/p>\n
(xv) Severe Problem. A Problem that persists for a period of [*] or
\n more during Peak Hours and [*] or more during Non-Peak Hours.<\/p>\n
(xvi) Temporary Workaround. A temporary technical solution that
\n restores the system to the levels set forth in this SLA,
\n although there may be ongoing or additional measures until a
\n permanent solution can be implemented.<\/p>\n
(xvii) Timeouts. A timeout refers to an action taken by Yahoo
\n production servers when Overture Results are not received within
\n the maximum Aggregate Response Time referred to as the “Critical
\n Threshold” in Article IV, Section E below. This action will
\n result in Overture Results not being displayed, but may or may
\n not constitute an “Impression” under the Agreement.<\/p>\n
(xviii) TTL. Time-to-live settings that determine the time that the
\n Overture entries remain in the Yahoo DNS cache.<\/p>\n
(xix) Unresolved Catastrophic Problem. A Catastrophic Problem that
\n does not have a Problem Resolution within a total period of [*]
\n or more during Peak Hours ([*]) and [*] or more during Non-Peak
\n Hours.<\/p>\n
(xx) Yahoo Technical Lapse. A Yahoo Technical Lapse means a set of
\n technical circumstances within Yahoo’s reasonable control
\n whereby (i) a properly formatted set of Overture Results are
\n delivered to Yahoo in response to a properly formatted Yahoo
\n Search Query within the Critical Threshold established in
\n Article IV, Section E below, but are not displayed as a Yahoo
\n Search Results Page or (ii) Yahoo is unable to receive a
\n properly formatted set of Overture Results and does not transmit
\n properly formatted Yahoo Search Queries to Overture.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
Confidential<\/p>\n
Page 2<\/p>\n
II. CONTACT INFORMATION<\/p>\n
A. Contact Information.<\/p>\n
(i) Overture Support Personnel.<\/p>\n
[*]<\/p>\n
(ii) Yahoo Support Personnel.<\/p>\n
[*]<\/p>\n
B. Updates. Either party may change its designated support personnel at
\nits discretion with reasonable written notice to the other party. Each party’s
\npreliminary contact personnel are as shown in Article II, Section A.<\/p>\n
III. SUPPORT PROCEDURES<\/p>\n
A. Support Procedures.<\/p>\n
(i) All Problems, Severe Problems, and Catastrophic Problems
\n reported by either party must be submitted to the other party,
\n as appropriate, via the technical support telephone number, via
\n email or pager to the contact information set forth in the
\n Support Table, and each such Problem, Severe Problem, and
\n Catastrophic Problem will be given a unique reference number by
\n the receiving party.<\/p>\n
(ii) The responsible party shall inform the other party’s technical
\n support personnel of ongoing efforts to provide a Problem
\n Resolution concerning Problems, Severe Problems, and
\n Catastrophic Problems at least once per day, or more frequently
\n if such is provided for in the Support Table until such Problem
\n Resolution is complete.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect
\n to the omitted portions.<\/p>\n
Confidential<\/p>\n
Page 3<\/p>\n
(iii) In the event that there is a Minor Problem, Problem, Severe
\n Problem or Catastrophic Problem during Non-Peak Hours, the
\n reporting party shall contact the other party’s NOC via customer
\n support pager at the email pager address provided herein for
\n such purpose.<\/p>\n
B. Overture Response. Upon receiving notification from Yahoo, Overture
\n shall promptly determine whether the request is a Minor Problem, a
\n Problem, a Severe Problem, or a Catastrophic Problem or none of the
\n above according to the definitions set forth above. If it is determined
\n by the parties that the issue is Overture’s responsibility, then
\n Overture will respond to the request within the response times set forth
\n in this SLA and shall use all commercially reasonable efforts to resolve
\n the Minor Problem, Problem, Severe Problem or Catastrophic Problem in
\n accordance with this SLA. If the parties agree that a Minor Problem,
\n Problem, Severe Problem, or Catastrophic Problem is not Overture’s
\n responsibility, then Overture shall reasonably cooperate with Yahoo to
\n provide a Problem Resolution.<\/p>\n
C. Yahoo Response. Upon receiving notification from Overture, Yahoo shall
\n promptly determine whether the request is a Minor Problem, Problem, a
\n Severe Problem, or a Catastrophic Problem or none of the above,
\n according to the definitions set forth above. If it is determined by the
\n parties that the issue is Yahoo’s responsibility, then Yahoo will
\n respond to the request within the response times set forth in this SLA
\n and shall use all commercially reasonable efforts to resolve the Minor
\n Problem, Problem, Severe Problem, or Catastrophic Problem in accordance
\n with this SLA. If the parties agree that a Minor Problem, Problem,
\n Severe Problem, or a Catastrophic Problem is not Yahoo’s responsibility,
\n then Yahoo shall reasonably cooperate with Overture to provide a Problem
\n Resolution.<\/p>\n
D. Indeterminate Responsibility. If the parties disagree which party bears
\n responsibility for a Problem, Severe Problem, or Catastrophic Problem
\n then both parties will form a resolution team comprised of at least a
\n technical contact representing each party. Any continuing disagreement
\n regarding responsibility, or any failure by either party to effect a
\n Problem Resolution within the times indicated will result in escalation
\n to the Primary business contact as identified in Article II above and as
\n set forth in Section E below.<\/p>\n
SUPPORT TABLE<\/p>\n
\n\n TYPE OF PROBLEM TIME FOR IMPLEMENTATION CHANGE AND
\nRECEIPT OF NOTICE REPORTED RESPONSE TIME REPORTING OBLIGATIONS
\n—————– ————— ————- ———————————-
\n
\nDuring business hours Minor Problem Initial response to Responsible party will provide
\nor other times. request within [*] notifications [*] per business day
\n during business hours until Problem Resolution. All such
\n and [*] after business notifications will be to the other
\n hours begins if party’s NOC.
\n reported outside of
\n business hours.<\/p>\n Problem Resolution
\n or plan for
\n Problem Resolution by
\n next business day.<\/p>\n
During normal Problem Initial response to Responsible party will provide a
\nbusiness hours (8:00 request within [*] proposed Problem Resolution. If the
\na.m. — 6:00 p.m. Problem
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect
\n to the omitted portions.<\/p>\n
Confidential<\/p>\n
Page 4<\/p>\n
\n <\/p>\nPST [*]. Resolution is not immediate, the
\nMonday-Friday) responsible party will provide
\n Problem Resolution or [*] on the first day of occurrence
\n plan for Problem and then daily updates. All such
\n Resolution within [*]. notifications and updates will be
\n sent to the other party’s NOC.<\/p>\n
During normal Severe Problem Initial response to Responsible party will provide a
\nbusiness hours (8:00 request within [*]. proposed Problem Resolution to
\na.m. — 6:00 p.m. PST address the Severe Problem. If the
\nMonday-Friday) Problem Resolution or Problem Resolution is not immediate,
\n plan for Problem the responsible party will provide
\n Resolution within [*]. notifications every [*] hours on the
\n first day of occurrence and then
\n daily updates thereafter. All such
\n notifications and updates will be to
\n the other party’s NOC.<\/p>\n
During normal Catastrophic Problem Initial response to Responsible party will provide a
\nbusiness hours (8:00 request within [*]. proposed Problem Resolution to
\na.m. — 6:00 p.m. PST address the Catastrophic Problem. A
\nMonday-Friday) Problem Resolution or Catastrophic Problem will result in
\n plan for Problem escalation to the Primary business
\n Resolution within [*]. contact as identified in Article II
\n above and as set forth in Section E
\n below. If the Problem Resolution is
\n not immediate, the responsible party
\n will provide notifications every [*]
\n until resolved. All such
\n notifications and updates will be to
\n the other party’s NOC. <\/p>\n
During all other Problem Initial response to Responsible party will provide a
\ntimes. request within [*]. proposed Problem Resolution in
\n response to the Problem or Severe
\n Problem Resolution or Problem.
\n plan for Problem
\n Resolution within [*] If the Problem Resolution is not
\n of next business day. immediate, responsible party will
\n provide [*] on the first business
\n day after the occurrence and then
\n daily updates thereafter. All such
\n notifications and updates will be
\n to the other party’s NOC.<\/p>\n
During all other times Severe Problem Initial response to Responsible party will provide a
\n request within [*]. proposed Problem Resolution in
\n response to the Problem or Severe
\n Problem Resolution or Problem.
\n plan for Problem
\n Resolution within [*]. If the Problem Resolution is not
\n immediate, responsible party will
\n provide notifications every [*]
\n on the first business day after the
\n occurrence and then daily updates
\n thereafter All such notifications and
\n updates will be to the other party’s
\n NOC.
\n<\/c><\/c><\/c><\/s><\/table>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
Confidential<\/p>\n
Page 5<\/p>\n
\n
\nDuring normal Catastrophic Problem Initial response to Responsible party will provide a
\nbusiness hours (8:00 request within [*]. proposed Problem Resolution to
\na.m. — 6:00 p.m. PST address the Catastrophic Problem. A
\nMonday-Friday) Problem Resolution or Catastrophic Problem will result in
\n plan for Problem escalation to the Primary business
\n Resolution within contact as identified in Article II
\n [*]. above and as set forth in Section E
\n below.<\/p>\n If the Problem Resolution is not
\n immediate, the responsible party will
\n provide notifications every [*] until
\n resolved. All such notifications and
\n updates will be to the other party’s
\n NOC.<\/p>\n
During business hours Implementation Changes Within [*]. Notification of or request for
\nor other times. Implementation Changes should be sent
\n to the Business Contacts outlined in
\n Article II, section (i) and (ii)
\n<\/c><\/c><\/c><\/s><\/table>\n
E. Escalation Process.<\/p>\n
(i) Each party hereby agrees to notify the other party’s NOC within
\n [*] of detecting any Problem, Severe Problem, or Catastrophic
\n Problem and to notify the other party of a Minor Problem.<\/p>\n
(ii) In the event that either party does not respond to the other
\n party within the response time from receipt of communication or
\n detection of a Minor Problem, Problem, Severe Problem, or
\n Catastrophic Problem, then each party may contact any of the
\n personnel outlined in the Contacts section, Article II.<\/p>\n
IV. OPERATIONAL METRICS.<\/p>\n
A. Availability. Overture will maintain [*]% Availability as measured by
\n [*] production query logs, verified by [*] with at least [*] intervals,
\n reported [*]. In the event of discrepancies between these two sources,
\n Yahoo and Overture will work together to determine root cause of such
\n discrepancy. If Availability falls below [*]%, Problem Resolution would
\n occur, and the Cure Period (i.e., the process under Article IV, Section
\n G) would be in effect. Overture will provide to Yahoo reasonable
\n technical specifications for redirecting traffic in case of temporary
\n unavailability of an Overture search data center.<\/p>\n
B. Capacity. Overture will provide capacity based on Yahoo’s current
\n forecast of [*] Yahoo Search Queries per [*], supporting a peak rate of
\n [*] (the “Peak Rate”), which is [*] that of the average per day Yahoo
\n Search Query rate. The parties acknowledge that Yahoo’s volume forecast
\n and “Peak Rate” will increase during the Term. Overture will use
\n commercially reasonable efforts provide increasing capacity to
\n accommodate such growth in a timely fashion. [*]. Additionally, Overture
\n will provide up to [*]% capacity beyond these levels if so requested by
\n Yahoo, provided that Yahoo gives a minimum of [*] days prior written
\n notice. Yahoo will notify Overture if Yahoo anticipates an increase of
\n Yahoo Search Queries by more than [*]% in any calendar quarter. During
\n the period of time that Overture is working to accommodate the
\n additional capacity, the Availability, Response Times, and Timeouts will
\n be <\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
Confidential<\/p>\n
Page 6<\/p>\n
renegotiated for the additional traffic. [*]. Finally, [*].
\n Notwithstanding the previous sentence, if Yahoo delivers Yahoo Search
\n Queries [*].<\/p>\n
C. Site monitoring. Overture will monitor the performance of its
\n obligations under this Agreement using automated tools\/utilities
\n developed and\/or configured by Overture, or contracted with external
\n third parties, to validate the Availability of [*]% and response
\n times. Additionally, Yahoo will perform a [*] test for compliance with
\n operational metrics and will share such results with Overture on a [*]
\n basis. If either party detects fault, the discovering party will respond
\n as defined in Article III, “Support Procedures.”<\/p>\n
D. Response Times. Overture will comply with the following operational
\n metrics:<\/p>\n
[ ] INTERNAL OVERTURE RESPONSE TIME shall [*].<\/p>\n
[ ] AGGREGATE RESPONSE TIME shall [*]. In the event of discrepancies
\n between these two sources, Yahoo and Overture will work together to
\n determine root cause of such discrepancy.<\/p>\n
[ ] RESPONSE TIME ENHANCEMENT. The parties mutually agree that they
\n will employ reasonable efforts to provide an Average Aggregate
\n Response Time that is lower than the stated number in this SLA.
\n Specifically, the parties will engage in good faith efforts to develop
\n co-location infrastructure to support enhanced operational metrics.
\n Upon the mutually acceptable completion of such co-location efforts,
\n the parties agree to amend this SLA to improve the operation metrics
\n set forth in this Section IV.<\/p>\n
E. Critical Thresholds. Aggregate Response Time that is greater than [*]
\n will result in Timeouts (the “Critical Threshold”).<\/p>\n
F. Problems and Critical Threshold. If there is a Severe Problem or
\n Catastrophic Problem, Yahoo may, at its discretion, lower the Critical
\n Threshold until a Problem Resolution is completed. Additionally, if
\n Severe Problem or Catastrophic Problem results in no results being
\n returned to Yahoo within any threshold, Yahoo may, at its discretion,
\n disable the Overture results until a Problem Resolution is completed.<\/p>\n
G. Cure Period. Once the responsible party is identified for a Minor
\n Problem, Problem or Severe Problem, according to Article III, Section B
\n or C, the responsible party shall identify and communicate a Problem
\n Resolution or plan and shall comply with the support table set forth in
\n Article IV. The responsible party shall use commercially reasonable
\n efforts to implement a Problem Resolution as soon as possible and in any
\n event, within 8 business days, and to implement Problem Resolution for
\n Minor Problems as soon as possible and, in any event, within 21 days. If
\n the responsible party cannot implement a Problem Resolution for the
\n Problem or Severe Problem within 8 business days, the other party may
\n deem such failure an Escalation Event pursuant to Section 16.5(a) of the
\n Agreement. Overture’s failure to comply with the operational metrics set
\n forth in Article IV, Sections A or D will be deemed a Problem and will
\n be subject to this Section G of Article IV.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
Confidential<\/p>\n
Page 7<\/p>\n
H. DNS. Overture uses DNS-based global load balancing to direct search
\n traffic to one of the several facilities that serve Overture’s search
\n traffic. Yahoo servers shall adhere to the TTL in the Overture name
\n server resolution response (no more than [*]), periodically
\n querying the Overture DNS servers to determine the IP address of the
\n Overture site where the Yahoo servers must direct their query traffic.
\n Overture will not be responsible for satisfying requirements for
\n Availability Response Times if TTLs exceed [*].<\/p>\n
I. Maintenance Requirements. Normal Maintenance occurs on [*], and will not
\n exceed [*], and will not be counted in the determination of Availability
\n (Section A) and Response Times (Section D) of this Section IV.<\/p>\n
J. Monitoring Servers. In addition to the Yahoo’s servers monitoring
\n Aggregate Response Times, Overture may at its option place a monitoring
\n server (or servers, one for each site) proximal to the Yahoo production
\n network to aid in the resolution of connectivity and Network Response
\n problems. Yahoo may place a monitoring server (or servers, one for each
\n site) proximal to the Overture production network, also to aid in the
\n resolution of connectivity and Network Response problems.<\/p>\n
K. Reporting. Both parties will make available upon request, in a format
\n mutually agreed by both parties, a report showing Availability, Internal
\n Response Time and Aggregate Response Time as measured under this SLA.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
Confidential<\/p>\n
Page 8<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT B<\/p>\n
YAHOO SEARCH BOXES<\/p>\n
[Graphic of Yahoo Search Box]<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT C<\/p>\n
YAHOO SEARCH RESULTS PAGES<\/p>\n
[Graphic depicts example of “mouse over” Overture search result and
\n corresponding text box with result description]<\/p>\n
[Graphic depicts search results page on Yahoo network, including implementation
\n and presentation of Overture search results]<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT D<\/p>\n
YAHOO! AND OVERTURE EXTEND PAY-FOR-PERFORMANCE SEARCH AGREEMENT<\/p>\n
OVERTURE CONTINUES TO POWER SUCCESSFUL YAHOO! SPONSOR MATCHES PROGRAM<\/p>\n
SUNNYVALE & PASADENA, Calif. –(BUSINESS WIRE)– April 25, 2002 — Yahoo! Inc.
\n(Nasdaq:YHOO – news), a leading global Internet company, and Overture Services,
\nInc. (Nasdaq:OVER – news), the world’s leading provider of Pay-For-Performance
\nsearch to Web sites across the Internet, today announced that they have extended
\ntheir relationship to a three-year agreement to distribute Overture’s search
\nlistings through Yahoo! Sponsor Matches.<\/p>\n
Under the agreement, Overture will continue to provide Yahoo! with its
\neditorially reviewed Pay-For Performance search results from its growing base of
\n60,000 advertisers. This agreement is a renewal of a relationship that began in
\nNovember 2001. The terms of the agreement were not disclosed.<\/p>\n
“We will continue to leverage our strength as the leading search platform and
\nare extremely pleased to be working with an industry leader like Overture,” said
\nTerry Semel, chairman and chief executive officer, Yahoo! Inc. “Search and paid
\nlistings are key growth areas for Yahoo! and with the strong success of Sponsor
\nMatches since its launch in November, we are looking forward to providing even
\nmore comprehensive and enhanced search opportunities for advertisers and
\nconsumers.”<\/p>\n
Yahoo! Sponsor Matches is an enhanced placement program that gives Web sites
\nincreased visibility in Yahoo!’s search results, distinguished in clearly
\ndemarcated sections. Since its inception, the Yahoo! Sponsor Matches program has
\nshown strong performance and experienced click-through rates considerably higher
\nthan the industry average. Businesses are able to reach their targeted consumers
\nmore effectively through enhanced placement in search results on keywords that
\nare relevant to their business and consumers are able to find services that are
\nrelevant to their needs.<\/p>\n
“We are excited to announce this long-term partnership with one of the most
\npopular destination sites on the Internet,” said Ted Meisel, president and chief
\nexecutive officer, Overture Services, Inc. “It is clear that Yahoo! views search
\nas a strategic priority and we look forward to developing new search products
\nwith them in the future.”<\/p>\n
Overture’s search results are generated by Overture’s 60,000 advertisers who bid
\nfor placement on keywords that are relevant to their businesses. These listings
\nare carefully screened by Overture’s 100-person editorial team before being
\ndistributed to the company’s affiliate partner network, which includes many of
\nthe Internet’s most popular destination sites.<\/p>\n
About Yahoo!
\nYahoo! Inc. is a leading provider of comprehensive online products and services
\nto consumers and businesses worldwide. Yahoo! reaches more than 237 million
\nindividuals worldwide each month, and is the No. 1 Internet brand globally.
\nHeadquartered in Sunnyvale, Calif., Yahoo!’s global network includes 25 World
\nproperties and is available in 13 languages.<\/p>\n
About Overture (formerly GoTo)
\nOverture, (Nasdaq: OVER – news), formerly known as GoTo, is the leader in
\nPay-For-Performance search on the Internet. The company created the market for
\nPay-For-Performance search by redefining how businesses market online. In the
\nfirst quarter of 2002, Overture facilitated more than 587 million paid
\nintroductions on a worldwide basis between consumers and its approximately
\n60,000 advertisers, who bid for placement on relevant search results and pay
\nOverture only when a consumer clicks on their listing. Following a rigorous
\nscreening for user relevance by Overture’s 100-person editorial team, the
\ncompany distributes its search results to tens of thousands of sites across the
\nInternet, including America Online, Microsoft and Yahoo! – making it the largest
\nPay-For-Performance search and advertising network on the Internet. Overture is
\nbased in Pasadena, California, with offices in New York, San Francisco and the
\nUK, Germany and Ireland. For more information, visit www.overture.com.<\/p>\n
Yahoo! and the Yahoo! logo are registered trademarks of Yahoo! Inc. Overture and
\nPay-For-Performance are service marks of Overture Services Inc. All other names
\nare trademarks, registered trademarks or service marks of their respective
\nowners.<\/p>\n
This press release contains forward-looking statements within the meaning of the
\nfederal securities laws. These forward-looking statements include without
\nlimitation statements regarding Yahoo!’s users will continue to use Overture
\nsearch results, that advertisers and businesses will want to participate in
\nSponsored Matches by seeking enhanced placement in the search results, that
\nbusinesses will be able to reach customers more effectively through enhanced
\nplacement in search results, that the companies will develop new search
\nproducts. These forward-looking statements are subject to risks and
\nuncertainties that could cause actual results and events to differ materially.
\nThese risks and uncertainties include, among others that the implementation may
\nnot be successful or generate revenue for Overture or yield economic benefits to
\nOverture, that the development of new search products may not happen and if it
\ndoes happen that it will be successful or generate revenue for Overture or yield
\neconomic benefits to Overture, the risk that Overture’s advertisers and
\nbusinesses may not want traffic from Yahoo! and the risk that Yahoo!’s users may
\nnot want to use the Sponsor Matches product. For a discussion of other risks
\nthat could cause actual results or events to differ materially from such
\nforward-looking statements, see the discussion of “Risks That Could Affect Our
\nFinancial Condition and Results of Operations” in Overture’s 10-K filing with
\nthe SEC for the period ended December 31, 2001. Overture undertakes no
\nobligation to update forward-looking statements to reflect events or
\ncircumstances occurring after the date of this press release.<\/p>\n
————————————–
\nContact:<\/p>\n
Overture Services, Inc.
\n Al Duncan, 626\/685-5714 (Media)
\n al@overture.com
\n Jim Olson, 626\/229-5242
\n jim.olson@overture.com
\n Laurie Berman, 626\/229-5368 (Investors)
\n laurie.berman@overture.com
\n or
\n Yahoo!
\n Diana Lee, 408\/349-6501
\n dianalee@yahoo-inc.com
\n or
\n Fleishman Hillard PR
\n Nicole Waddell, 503\/221-2368
\n waddelln@fleishman.com<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT E<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT F<\/p>\n
OVERTURE REPORTS<\/p>\n
MAIN MONTHLY REPORTS:<\/p>\n
– Yahoo average CPC<\/p>\n
– Published site wide CPC (delivered in the report following
\n Overture’s quarterly announcement of this number)<\/p>\n
– Yahoo Search Queries asked of Overture (number)<\/p>\n
– Total Actual Clicks delivered from Yahoo (number)<\/p>\n
[*]<\/p>\n
SOURCE OF QUERY REPORTS:<\/p>\n
For each unique source of Yahoo Search Queries (e.g., “next” Yahoo Search
\nResults Pages) that Yahoo “tags” pursuant to Section 8.4(a), Overture will
\nprovide the following reports:<\/p>\n
– Average CPC for that source<\/p>\n
– Yahoo Search Queries asked of Overture from each source (number)<\/p>\n
– Total Actual Clicks delivered from Yahoo from each source (number)<\/p>\n
[*]<\/p>\n
– Total Gross revenue earned by Yahoo from each source<\/p>\n
– All of the above in a cumulative manner annually and over the Term
\n (totals\/averages across the term, as distinct from the applicable
\n Quarter)<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
1<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT G<\/p>\n
EXCLUDED TERMS<\/p>\n
[*]<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT H<\/p>\n
OVERTURE RESTRICTED COMPANIES<\/p>\n
[*]<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT I<\/p>\n
Subject: Overture Signs Long-Term Yahoo! Agreement<\/p>\n
Dear Overture Advertiser:<\/p>\n
Overture is excited to announce the renewal of our Pay-for-Performance(TM)
\nsearch agreement with Yahoo! for the next three years. We are pleased to have
\nsecured long-term agreements with two of the most popular destinations on the
\nInternet — Yahoo! and MSN. These agreements give Overture advertisers an
\nopportunity to reach a majority of all active Internet users.<\/p>\n
Overture search results will continue to appear on Yahoo at www.yahoo.com. As
\nthe leading provider of comprehensive online products and services, Yahoo!
\nreaches millions of users and is the number one Internet brand globally.<\/p>\n
Earlier today we announced that our U.S. search distribution relationship with
\nAmerica Online has ended, including AOL, AOL.com, Compuserve and Netscape
\n(scheduled to end in August). Overture will continue to provide its search
\nresults to AOL Europe’s Internet properties in the UK, Germany and France.<\/p>\n
The strength of our affiliate network, which includes, Yahoo!, MSN, AltaVista,
\nLycos, Infospace, AskJeeves, and CNET, allows Overture to deliver the quality
\nand quantity of leads you’ve come to expect from us.<\/p>\n
We are committed to your success and look forward to continuing to deliver the
\nhighest return on your advertising investment.<\/p>\n
Sincerely,<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT J<\/p>\n
OVERTURE DISQUALIFIED ENTITIES<\/p>\n
[*]<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT K<\/p>\n
ESTIMATED YAHOO PAYMENT AND GUARANTEED FIXED PAYMENT ADJUSTMENT PROCESS<\/p>\n
[*]<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
EXECUTION CONFIDENTIAL<\/p>\n
EXHIBIT 8.4<\/p>\n
YAHOO REPORTING:
\nYahoo will provide monthly Yahoo Search Query reports that include the following
\ncategories of information:<\/p>\n
[*]<\/p>\n
YAHOO SEARCH QUERY, IMPRESSION AND `BOT TRAFFIC VERIFICATION INFORMATION:<\/p>\n
Yahoo will provide Overture with the following information in a data field at
\nthe time-of-search to enable Overture to develop its own reasonable estimates of
\nsearches performed by `bots as a percentage of Yahoo Search Queries and
\nImpressions:<\/p>\n
[*]<\/p>\n
Yahoo will be entitled to encrypt such information so long as the encryption
\nalgorithm is consistent (allowing Overture to verify valid searches performed by
\nhuman users in a consistent manner that is time-independent). Accordingly, Yahoo
\nwill provide Overture with six weeks notice prior to a change in the encryption
\ndata, which preserves the utility of the data for the purpose of verifying valid
\nImpressions and Search Queries.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to the
\n omitted portions.<\/p>\n
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