CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.1
SERVICES AGREEMENT
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This SERVICES AGREEMENT is made and entered into as of March 19, 2001 (the
"Effective Date"), by and among Moviefone, Inc., a Delaware corporation, with
offices at 335 Madison Avenue, 27th Floor, New York, NY 10017 (hereinafter
referred to as "MF"), Radiant Systems, Inc., a Georgia corporation, with
principal offices at 3925 Brookside Parkway, Alpharetta, GA 30022 (hereinafter
referred to as "RS") (each a "Party" and collectively the "Parties"), and, as to
Section 2.1 and 3.5 only, America Online, Inc., a Delaware corporation with
offices at 22000 AOL Way, Dulles, VA 20166 ("AOL").
WHEREAS, MF has entered into agreements with exhibitors for, among other
things, the provision of installation, training support and maintenance services
of the MARS Software (as defined below) and associated hardware;
WHEREAS, MF has decided to cease all marketing and licensing activities in
connection with the MARS System in the United States and, except for the
transition activities contemplated by this Agreement, to shutdown any and all
business operations pertaining to the business it currently operates in
connection with the MARS System (as defined below); and
WHEREAS, MF has requested that RS undertake on behalf of MF certain
maintenance and support services related to the MARS System for exhibitors and
RS is willing to do so pursuant to the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, MF and RS, intending to be legally
bound, hereby agree as follows.
ARTICLE 1
DEFINITIONS
1.1 "Actions or Proceedings" means any action, suit, proceeding,
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arbitration or regulatory investigation or audit.
1.2 "Affiliate" of any specified Person means any other Person
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that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with the specified Person. For the
purposes of this definition, control means the direct or indirect ownership or
control of fifty percent (50%) or more of the stock or other equity interests of
such Person entitled to vote for the election of members of the Board of
Directors or similar governing body of such Person; provided, however, that such
Person shall cease to be an Affiliate if and when such equity interest becomes
less than fifty percent (50%) for any reason other than as a result of dilution,
and provided, further, that if such equity interest becomes less than fifty
percent (50%) as a result of dilution, such Person shall cease to be an
Affiliate if and when such percentage equity interest is further reduced for any
reason other than as a result of dilution.
1.3 "Confidential Information" has the meaning set forth in Section 8.1.
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1.4 "Disclosing Party" has the meaning set forth in Section 8.1.
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1.5 "Enhancements" means, with respect to the MARS System, any
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modifications, improvements, extensions, and updates to, other derivative works
of, the MARS System created by RS, whether performed pursuant to Services (as
defined below) rendered pursuant to Section 3.1 or otherwise.
1.6 "Enhanced RS POS System" has the meaning set forth in that certain
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Marketing and Development dated March 3, 2000 by and among MF, RS and AOL.
1.7 "Exhibitors" means the entities listed on Exhibit B.
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1.8 "Exhibitor Agreements" means the agreements listed on Exhibit C,
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but not the Purchase Orders identified in the Exhibitor Agreements (other than
service and/or support fees identified therein).
1.9 "Indemnitee" has the meaning set forth in Section 10.3.
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1.10 "Interactive Service" means any entity that as a material part of
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its business offers one or more of the following: (i) online or Internet
connectivity services (e.g., an Internet service provider); (ii) a broad
selection of aggregated third party interactive content, including entities that
solely aggregate information related to Venues or sell tickets for Venues (or
navigation thereto); or (iii) communications software capable of serving as the
principal means through which a user creates, sends and receives electronic mail
or real time online messages.
1.11 "Losses" means losses, liabilities, suits, claims, costs, expenses
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(including reasonable attorneys' fees actually incurred), penalties, fines,
judgments and/or damages.
1.12 "Manager" has the meaning set forth in Section 5.1.
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1.13 "MARS Hardware" means the hardware used by Exhibitors or to be
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maintained under the Exhibitor Agreements including any replacement equipment
provided during the course of this Agreement and any Enhancements thereto.
1.14 "MARS Software" means the software known as "MARS" and "MARS Sequel"
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distributed by MF under the Exhibitor Agreements, including any Enhancements
thereto.
1.15 "MARS System" means the MARS Software and MARS Hardware.
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1.16 "MF Indemnitee" has the meaning set forth in Section 10.1.
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1.17 "Person" means a natural person, a corporation, a partnership, a
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trust, a joint venture, any governmental authority, or any other entity or
organization.
1.18 "Receiving Party" has the meaning set forth in Section 8.1.
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1.19 "Remote Ticketing Services" means the provision of information
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(including event time listings), electronic ticketing and other commerce
services for Venues other than in person (such in person services may include
(i) kiosks, so long the sale features offered at the kiosk are no greater than
the services offered at the relevant Venue's box office, and (ii) same day
purchase of advance concessions) at the Venue of the event.
1.20 "Report" has the meaning set forth in Section 5.2.
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1.21 "RS Indemnitee" has the meaning set forth in Section 10.2.
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1.22 "Services" has the meaning set forth in Section 3.1(a).
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1.23 "Services Fees" means amounts due to MF as provided in Section
6.1(b).
1.24 "Term" has the meaning set forth in Section 13.1.
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1.25 "Venue" means a theater, stadium, performing arts center, concert
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venue, arena or any other establishment that as an ordinary and regular business
activity exhibits or presents motion pictures, plays, concerts, dance, sports or
any other live entertainment event.
ARTICLE 2
CESSATION OF MARS BUSINESS
2.1 Competitive Activities. Beginning on the Effective Date, MF shall
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cease to engage in, and for a period of two (2) years thereafter AOL and all of
its current and future subsidiaries, including MF (but not Time Warner Inc. and
its current and future subsidiaries), agree not to engage, directly or
indirectly, in the *** in the United States. For the purpose of this Section
2.1, the *** means the business of marketing, promoting, advertising, selling,
licensing or otherwise providing ***, and servicing, operating and maintaining
***; provided that the *** does not include (i) the sale and provision of ***
to, and operation and maintenance of *** used by, Time Warner Inc. and its
subsidiaries and (ii) activities relating to *** that are incidental to MF's
Remote Ticketing Services business and AOL's provision of the AOL Brand Service
and other Interactive Services. Notwithstanding the foregoing, nothing herein is
intended to preclude or restrict MF from fulfilling, discharging and otherwise
performing its obligations under the Exhibitor Agreements.
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*** Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
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2.2 Process. Effective with the Effective Date, MF agrees to use
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commercially reasonable best efforts to assist RS in its efforts to transition
Exhibitors from the MARS System to RS's proprietary exhibitor point of sale
system and associated hardware. MF acknowledges that RS intends to issue a
public announcement, in form and substance approved by MF in writing, which
approval shall not be unreasonably delayed, conditioned or withheld, regarding
the transactions contemplated herein and other aspects of RS's business
relationship with AOL and/or MF.
2.3 MF Liability. MF acknowledges and agrees that MF (and not RS) will
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be solely responsible for any costs or expenses MF incurs in implementing the
cessation of the *** as contemplated by this Agreement. Except as otherwise
provided herein, RS remains responsible for its own costs and expenses related
to the cessation of the *** as contemplated by this Agreement. Additionally, as
between MF and Exhibitors, and without prejudice to RS's obligations hereunder
(including its obligations under Section 10.1), MF remains obligated and liable
for all of MF's obligations under the Exhibitor Agreements.
ARTICLE 3
SERVICES AND TRANSITION
3.1 Services. Beginning on the Effective Date, as a subcontractor of MF
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and under the direction of MF as provided herein, RS shall perform all services
required to be provided to (i) Exhibitors (other than *** ("***")) but only
under Sections 3, 5, 5.1, 5.2, 5.3, 5.4 and 5.5 of the Exhibitor Agreements
(other than the Exhibitor Agreement between *** and MF) and (ii) *** but only
under Sections 2, 4.1, 4.2, 4.3, 4.4, 4.5 and 4.6 of the Exhibitor Agreement
between *** and MF (collectively, all such sections shall be referred to as
"Sections") (the "Services"). Irrespective of what may be contained in the
Sections, the Services do not include providing training services of any kind to
the Exhibitors or their employees, agents or representatives. Services shall be
performed in accordance with, and RS shall comply with the terms and conditions
of, the Sections including any standards of care and performance set forth
therein, but in each case in no event less than a professional and timely manner
and consistent with similar types of services provided by RS to its customers.
MF shall have the right to terminate the Services upon thirty (30) days prior
written notice to RS, but only in the event of an uncured material breach of the
Services by RS. With respect to the Exhibitor Agreements, at a time designated
by mutual agreement of MF and RS, MF shall issue written notices to the
Exhibitors advising them that the service term under the Exhibitor Agreements
will not be renewed beyond the then-current term and that all services provided
under the Sections will cease upon expiration of the then-current service term.
Additionally, MF shall issue whatever additional notices are required under the
Exhibitor Agreements to facilitate the non-renewal of such service terms. If an
Exhibitor other than *** requests Services pursuant to Section 5.4 of its
Exhibitor Agreement, or *** requests Services pursuant to Section 4.4 of its
Exhibitor Agreement, the Parties shall remind the Exhibitor that the MARS System
will not be supported beyond the then-current term of
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*** Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
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its Exhibitor Agreement and use commercially reasonable efforts to convince the
Exhibitor to migrate to the Enhanced RS POS System instead.
3.2 Transition Services. MF and RS shall cooperate to implement the
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transition plan attached hereto as Exhibit D ("Transition Plan") within the time
periods set forth therein.
3.3 Staffing Needs. MF acknowledges and understands that RS requires a
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reasonable level of MF MARS System help desk staffing (sufficient to meet then
current needs, but not greater than as of the Effective Date) to assist RS in
performing the Services through a transition period extending from the Effective
Date through September 30, 2001 (the "Transition Period"), and MF agrees to
offer its help desk personnel retention packages, stay bonuses, and other
financial incentives ("Compensation") to encourage such personnel to provide the
Services during the Transition Period. If MF terminates any such personnel
during the Transition Period, unless such personnel are not required to meet
then current needs or the Parties agree otherwise, MF shall use commercially
reasonable efforts to replace such personnel promptly with qualified personnel
for the duration of the Transition Period. MF, and not RS, shall have and
assume any liability to such personnel for Compensation payable by MF to such
personnel, notwithstanding that one or more of the help desk personnel may
become employees of RS during the Transition Period.
3.4 Migration of Exhibitors. Beginning on the Effective Date, RS shall
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promptly use commercially reasonable best efforts to ***, although nothing
herein shall be deemed or construed as a representation or guarantee by RS as to
the success it will have in ***. Except as specifically provided herein, MF
shall have no obligations regarding the migration or transitioning of any
Exhibitor to or from the MARS System. In the event any Exhibitor migrates to RS
products from the MARS System, MF agrees to permit such Exhibitor to voluntarily
terminate, without liability or cause, the Exhibitor's Exhibitor Agreement.
3.5 Amendment to Marketing and Development Agreement. Contemporaneously
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with the execution of this Agreement, the Parties and AOL shall execute an
amendment in substantially the form attached hereto as Exhibit E to that certain
Marketing and Development Agreement, dated March 3, 2000, by and among MF, RS
and AOL.
ARTICLE 4
RS PERSONNEL
4.1 RS as Independent Contractor; No Agency. RS is an independent
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contractor. RS shall not be deemed for any purpose to be an employee of MF.
Except with respect to the persons listed on Exhibit E during such time as they
remain employees of MF, MF shall not be responsible to RS or any governing body
for any payroll-related taxes related to the performance of the Services,
including but not limited to, withholding
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***Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
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or other taxes related to federal or state income tax, social security benefits
or unemployment compensation. RS and MF further represent and warrant that
neither Party is an agent, representative or partner of the other Party. Neither
Party shall have any right, power or authority to enter into any agreement for
or on behalf of, or incur any obligation or liability on behalf of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an employment relationship, an association, agency, joint
venture or partnership between the Parties or to impose any liability
attributable to such a relationship upon either Party.
4.2 Use of Independent Contractors by RS. Any independent contractor
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used by RS in connection with the Services (regardless of the amount of time
spent by such independent contractor in providing Services) shall have the
requisite skill level to satisfy the standards of care and performance set forth
in Section 3.1 and shall be either (i) a bona fide employee of a third party
with which RS has arranged for such employee to provide the Services or (ii) a
bona fide independent contractor who meets the requirements of the Internal
Revenue Service for independent contractor status. RS shall be fully and solely
responsible for the supervision and payment of such independent contractors and
for the work performed by such independent contractors.
4.3 Payroll and Other Employment Taxes. RS, and not MF, shall be
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responsible for payment of compensation to RS's employees and independent
contractors; payroll deductions required by federal, state or local law;
payments for income tax, social security and Medicare contributions,
unemployment or disability insurance as required by law; and workers'
compensation insurance, coverage or premiums required under state law; all as in
effect from time to time. At no time shall either Party be deemed to be the
employer of the other Party's employees or independent contractors, even if such
Party's personnel may supervise the other party's employees or independent
contractors.
ARTICLE 5
PROJECT MANAGEMENT
5.1 Manager. Each Party shall designate a manager (a "Manager") who
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shall act as a liaison between such Party and the other Party.
5.2 Progress Reports and Meetings. RS shall submit a detailed report
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("Report") to MF's Manager on a monthly basis for the initial six (6) months of
the Term and on a quarterly basis thereafter during the Term. Such Reports shall
be in a form mutually acceptable to RS and MF, and shall detail the Services
provided to Exhibitors and RS's migration activity during the reporting period.
If MF so requests, the Managers shall hold status meetings in order to review
the information described in a Report.
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ARTICLE 6
FINANCIAL MATTERS
6.1 Payment.
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(a) In consideration of RS' obligations under this Agreement, and
subject to MF's continuing performance of such obligations, MF shall pay
to RS the sum of *** in *** installments as follows:
*** on ***;
*** on or before ***; and
*** on or before ***.
The *** to be paid by MF hereunder is consistent with the performance of
Services and delivery of licenses as contemplated hereunder. RS shall
apply portions of such payment as follows: (i) *** to subsidize the
credits to be provided pursuant to that certain letter agreement with ***
of even date herewith (which RS shall enter into and comply with), and (ii)
*** to subsidize credits that RS shall make available to any Exhibitors
other than *** that enter into agreements after the Effective Date,
pursuant to which agreements the Exhibitors are to receive licenses with
respect to the Enhanced RS POS System, and which credits shall be applied
by RS to any payments due to RS for such licenses through September 30,
2001; provided that RS shall not apply any of the foregoing credits to any
Exhibitor unless such Exhibitor agrees with MF to terminate its Exhibitor
Agreement, as to the relevant movie theater(s), as of the time each theater
no longer uses the MARS System. The Parties acknowledge that RS' obligation
to provide Services with respect to such movie theater shall terminate at
the same time. In the event that the foregoing credits are not used within
the times applicable thereto, RS shall have no further obligation to MF
concerning the application of such payment and RS shall have unfettered use
of such funds.
(b) MF shall make the payment required by Section 6.1(a) by wire
transfer to the following account:
Bank of America
3550 Cumberland Circle, 11th Floor
Atlanta, Georgia 30339
ABA Routing Number: 061000052
Account Name: Radiant Systems, Inc.
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*** Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
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Account Number: 000001058908
(c) Pursuant to a binding purchase order executed by AOL on December
20, 2000 in connection with certain services rendered by RS to MF during
October, November and December, 2000 with respect to a transition of MF's
MARS business, MF shall include, along with the payment due on the
Effective Date, an additional ***.
(d) In connection with the Services, MF shall use its commercially
reasonable best efforts to cause Exhibitors to pay directly to RS all
amounts due to MF from Exhibitors under the Exhibitor Agreements for the
performance of Services, including any license fees for use of the MARS
System and any expenses that may be reimbursable under the Exhibitor
Agreements for the performance of such Services. To the extent that
Exhibitors are required or agree to do so, RS shall be responsible for
invoicing such Exhibitors for such amounts, and RS shall bear the risk of
collecting such amounts from Exhibitors, provided, however, if the
Exhibitors pay any such amounts to MF notwithstanding their agreement to
pay RS directly, MF shall promptly deliver such monies to RS, without
offset or reduction for any reason. To the extent that Exhibitors are not
required, or do not agree, to pay directly to RS all amounts due to MF
under the Exhibitor Agreements for the performance of Services, without
offset or reduction for any reason, MF shall deliver to RS all such amounts
received by MF from Exhibitors, on a monthly basis, within ten (10)
business days after the end of the month. In such case, RS shall identify
to MF on a monthly basis any expenses that may be reimbursable under the
Exhibitor Agreements for the performance of such Services so that MF can
invoice the Exhibitors therefor in accordance with the terms of the
relevant Exhibitor Agreements. In either case, if any Exhibitor fails to
pay any such amounts as required under its Exhibitor Agreement, MF shall
cooperate with RS in providing notice thereof to such Exhibitor, and if
appropriate, in terminating (after obtaining RS's approval for such
termination) such Exhibitor Agreement in accordance with its terms. To the
extent that either Party receives before the Effective Date advance
payments under the Exhibitor Agreements for services to be provided after
the Effective Date, the receiving Party shall, within thirty (30) days
after the Effective Date, pay to the other Party a prorated portion of such
payments corresponding to the portion of the Services period undertaken or
to be undertaken by the other Party. Notwithstanding the foregoing, MF may
deduct from its payments to RS certain costs as provided in Section 7.1(d).
6.2 Expenses. To the extent Exhibitor Agreements require prior approval
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of expenses in order for such expenses to be reimbursed, MF will cooperate with
RS and use its commercially reasonable best efforts to acquire such prior
approval, but in no event shall MF be responsible for reimbursing expenses not
collected by RS (unless such expenses were mistakenly paid to MF) from
Exhibitors, irrespective of whether prior approval was timely sought or
obtained.
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*** Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
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6.3 Late Fee. A late fee shall be charged by RS on any Service Fees and
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reimbursable expenses payable by MF and not paid to RS when due at the lesser of
the maximum amount chargeable by law or 1.0% per month commencing with the date
the payment was due.
6.4 Records. RS shall maintain complete and accurate accounting records
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of all reimbursable expenses, in a form in accordance with generally accepted
accounting principles, to substantiate RS's expenses hereunder and RS shall
retain such records for a period of four (4) years from the date of the relevant
expense. MF shall maintain complete and accurate accounting records of all
amounts received from Exhibitors under the Exhibitor Agreements in a form in
accordance with generally accepted accounting principles, and MF shall retain
such records for a period of four (4) years from the date of the relevant
payment.
6.5 Taxes. The Service Fees and expenses payable by MF and due to RS are
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net amounts to be received by RS, exclusive of all sales, use, withholding,
excise, value added and other taxes incurred by MF or imposed on RS in the
performance of the Services. Each party is responsible for determining and
paying any taxes based upon its own net income.
ARTICLE 7
LICENSE AND PROPRIETARY RIGHTS
7.1 MARS System.
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(a) Proprietary Rights. RS acknowledges and agrees that MF owns all
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right, title and interest in and to the MARS Software, including all
patent, copyright, trademark, trade name, trade secret and other
proprietary rights therein that may be secured in any place under laws now
or hereafter in effect.
(b) License. MF hereby grants to RS a perpetual (except as provided
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otherwise in Section 13.4 below), nonexclusive, royalty-free license to
use, reproduce, display, perform, distribute and create derivative works
of the MARS Software in all forms, currently supported versions, and
formats, whether object code or source code, to the extent necessary to
perform the Services in accordance with the terms of this Agreement.
(c) Delivery of MARS Software. Promptly after the Effective Date,
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MF shall deliver to RS: (i) one (1) machine-readable copy of the object
code for the currently licensed and supported versions of the MARS
Software; (ii) two (2) copies of the documentation or other materials that
MF ordinarily provides with the MARS Software; (iii) the source code for
the currently licensed and supported versions of the MARS Software; and
(iv) any material existing technical documentation, program
specifications, and such other documentation used in the ordinary course
by MF's computer programmers to create derivative works based on the MARS
Software or used by MF to provide software and
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hardware support and maintenance services under the Exhibitor Agreements.
Additionally, MF shall assist RS in establishing a software development
environment for each currently licensed and supported version of the MARS
Software and shall provide assistance as necessary to ensure RS is able to
use these environments.
(d) Hardware. For seventy-five (75) days after the Effective Date,
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MF shall be responsible for shipping replacement parts for the MARS
Hardware to Exhibitors who are entitled to receive such parts as a part of
the Services. RS shall be responsible for all of MF's costs of doing so
(including but not limited to costs of MARS Hardware procured after the
Effective Date (but not before the Effective Date), personnel and
shipping). MF shall have the right to deduct such costs from the amounts
payable by MF to RS pursuant to Section 6.1(d). At the end of such
seventy-five (75) day period, at no charge to RS, MF shall deliver all of
its then current inventory of replacement parts for the MARS Hardware and,
during the period RS is providing Services hereunder, MF shall use all
reasonable efforts to provide guidance and assistance to RS and respond to
questions posed by RS, regarding hardware maintenance services for the
MARS Hardware and help RS obtain a sufficient supply of parts for the MARS
Hardware throughout the Term including, without limitation, introducing RS
to its suppliers, calling upon and recommending that such suppliers do
business with RS and otherwise acting in a commercially reasonable manner
to facilitate RS accomplishing the foregoing.
7.2 Enhancements.
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(a) Proprietary Rights. RS agrees that MF is the sole and exclusive
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owner of all right, title and interest in and to any Enhancements created
by RS and its employees and independent contractors, including all patent,
copyright, trade secret and other proprietary rights therein that may be
secured in any place under laws now or hereafter in effect. The parties
intend that any Enhancements created by RS and its employees and
independent contractors shall be deemed "works made for hire" within the
meaning of the copyright laws of the United States and any similar laws of
other jurisdictions. To the extent, if any, that RS, its employees or
independent contractors have rights in such Enhancements notwithstanding
the foregoing, RS hereby irrevocably assigns to MF, and agrees that MF
shall be the sole and exclusive owner of, all right, title and interest in
and to such Enhancements, including all patent, copyright, trade secret and
other proprietary rights therein that may be secured in any place under
laws now or hereafter in effect. The source code for the MARS System and
any Enhancements thereof shall be Confidential Information of MF. RS shall
have valid and enforceable agreements with all of its employees and
independent contractors providing Services containing a nondisclosure
obligation comparable in scope to Article 8 and giving RS all rights and
authority necessary to effectuate the provisions of this Article 7.
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(b) Delivery. Promptly after each significant Enhancement, RS shall
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deliver to MF: (i) one (1) machine-readable copy of the object code for the
MARS Software, including such Enhancement; (ii) two (2) copies of the
documentation or other materials that RS has updated to reflect such
Enhancement; (iii) the source code for the MARS Software including such
Enhancement; and (iv) any existing technical documentation, program
specifications, and such other documentation pertaining to the creation of
such Enhancement.
7.3 Further Assurances. Upon the request of MF, RS shall sign and deliver
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any assignments or other necessary documents and otherwise assist MF to obtain,
maintain, perfect or enforce any of MF's rights under Section 7.2(a).
ARTICLE 8
CONFIDENTIALITY
8.1 Confidentiality Obligation. A Party (the "Receiving Party") shall
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keep, and shall cause its Affiliates to keep, strictly confidential any
information disclosed by the other Party (the "Disclosing Party") or otherwise
made available to the Receiving Party concerning any Party's performance of this
Agreement or otherwise concerning the business, operations, marketing or trade
secrets or other proprietary information of the Disclosing Party (whether in
written media or otherwise) ("Confidential Information"), using at least the
same degree of care that it uses to protect its own confidential or proprietary
information. "Confidential Information" shall not include information: (a) that
is or becomes generally available to the public other than as a result of
disclosure thereof by the Receiving Party; (b) that is lawfully received by the
Receiving Party on a nonconfidential basis from a third party that is not itself
under any obligation of confidentiality or nondisclosure to the Disclosing Party
or any other Person with respect to such information; or (c) that by written
evidence can be shown by the Receiving Party to have been independently
developed by the Receiving Party.
8.2 Nondisclosure of Confidential Information. The Receiving Party shall
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use Confidential Information solely for the purposes of this Agreement and shall
not disclose or disseminate any Confidential Information to any Person at any
time, except for disclosure to those of its Affiliates, and their respective
directors, officers, employees, independent consultants, accountants, attorneys,
advisers and agents whose duties reasonably require them to have access to such
Confidential Information, provided that such directors, officers, employees,
accountants, attorneys, advisers and agents are bound to maintain the
confidentiality of such Confidential Information to the same extent as if they
were Parties hereto.
8.3 Nondisclosure of Agreement. In addition to the obligations set forth
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in Section 8.1 above, neither Party shall disclose this Agreement or any
provisions of this Agreement and, without the prior consent of the other Party,
no Party shall make any press release or other public announcement of or
otherwise disclose this Agreement or any of its provisions to any third party:
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(a) Other than to its Affiliates and to its own and its Affiliates'
directors, officers, employees, attorneys and accountants whose duties
reasonably require familiarity with such Agreement, provided that (i) the
Disclosing Party informs such Affiliates, directors, officers, employees,
accountants, attorneys, advisers, agents and independent contractors of the
confidential nature of such Agreement and instructs such Persons to comply with
the confidentiality and nondisclosure obligations of this Section 8.3 and (ii)
the Disclosing Party is responsible for any breach or violation by such Persons
of the confidentiality and nondisclosure obligations of this Section 8.3;
(b) Other than to third parties providing debt financing to any
Party or any of its Affiliates and to the lead underwriter engaged in connection
with any offering of securities any Party or any of its Affiliates, provided
that such Persons enter into a customary form of confidentiality agreement with
such Party that includes this Agreement as confidential information subject to
the confidentiality and nondisclosure obligations set forth therein; and
(c) With respect to this Agreement, except for such disclosure as
may be required by applicable law or regulation or pursuant to the rules of or a
listing agreement with a national securities exchange or the NASDAQ National
Market, in which case the Disclosing Party shall provide the other Parties with
sufficient advance notice of such disclosure so that the other Parties have the
opportunity, if they so desire, to restrict such requirement for disclosure,
seek a protective order or take another appropriate remedy; provided that, in
connection with any offering of securities of the Disclosing Party or any of its
Affiliates, the Disclosing Party shall provide in advance to the other Parties
hereto for review the form and content of any disclosure of this Agreement or
any of its provisions that may be required by applicable law or regulation which
discuss such other Party and shall include such modifications to such disclosure
as may be reasonably requested by such other Party (except that the Disclosing
Party may file this Agreement as an exhibit to its registration statement or
required periodic reports if it would constitute a "material agreement" under
applicable law or regulation and the Disclosing Party shall use commercially
reasonable efforts to obtain confidential treatment of the portions of this
Agreement that meet the SEC qualifications for confidential treatment if so
requested by such other Party).
8.4 Exception. The foregoing confidentiality and nondisclosure
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obligations shall not apply to Confidential Information that is required to be
publicly disclosed by law or by regulation; provided, however, that, in such
event, the Receiving Party provides the Disclosing Party with prompt advance
notice, to the extent practicable, of such disclosure so that the Disclosing
Party has the opportunity if it so desires to restrict such requirement for
disclosure, seek a protective order or take another appropriate remedy. In any
event, the Receiving Party shall use commercially reasonable efforts to secure
confidential treatment of any Confidential Information of the Disclosing Party
that it is required to disclose.
-12-
8.5 Injunctive Relief. Each of MF and RS acknowledges that disclosure of
-----------------
any Confidential Information by it will give rise to irreparable injury to the
other Party, its Affiliates or the owner of such information, inadequately
compensable in damages. Accordingly, such other Party or party may seek and
obtain injunctive relief against the breach or threatened breach of the
foregoing undertakings, in addition to any other legal remedies which may be
available. Each of MF and RS acknowledges and agrees that the covenants
contained herein are necessary for the protection of legitimate business
interests of the other Party and its Affiliates and are reasonable in scope and
content.
8.6 Survival. The confidentiality and nondisclosure obligations of this
--------
Article 8 shall survive the termination or expiration of this Agreement and
remain in effect for a period of two years following the termination or
expiration of this Agreement except that with respect to any item protected
thereunder which constitutes a trade secret under applicable law (including the
source code of the MARS Software), such obligations of confidentiality shall
continue in effect with respect to such item for the maximum period permitted
under applicable law.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
9.1 RS Representations and Warranties. RS represents and warrants that:
---------------------------------
(a) RS has or shall have the proper skill, training, and background
so as to be able to perform the Services as required herein;
(b) MF shall receive good title in and to the Enhancements, free and
clear of any and all liens, encumbrances, claims or litigation, whether pending
or threatened;
(c) Enhancements delivered by RS to MF hereunder shall not infringe
on or violate (i) any third party patent, copyright, trademark, trade name or
trade secret, (ii) any other proprietary or other right of any third party,
including but not limited to any third party right to privacy, or (iii) any
applicable law or regulation.
9.2 MF Representations and Warranties. MF represents and warrants that
---------------------------------
(a) to its best knowledge after reasonable inquiry, and except as specified on
Exhibit F, there are no Actions or Proceedings pending against MF in connection
with the Exhibitor Agreements; (b) to its best knowledge after reasonable
inquiry, and except as specified on Exhibit F, there are no facts or
circumstances known to MF that could reasonably be expected to give rise to any
Action or Proceeding that would be required to be disclosed pursuant to clause
(a) above; (c) except as specified on Exhibit F, no employee of MF having a
title of "Director" or "Senior Account Manager" or above has received any notice
or claim, written, oral or otherwise, alleging that MF is in material violation
or breach of, or material default under, any of the Exhibitor Agreements, which
material violation, breach or default has not been cured as of the Effective
Date; and (d) the Exhibitor Agreements are in full force and effect and
constitute legal, valid and binding
-13-
agreements, enforceable in accordance with their terms, of each party thereto,
subject to applicable bankruptcy, insolvency and similar laws and to general
principles of equity.
9.3 Mutual Representations and Warranties. Each Party represents and
-------------------------------------
warrants to the other Party that: (i) such Party has the full corporate right,
power and authority to enter into this Agreement, to grant the licenses granted
hereunder and to perform the acts required of it hereunder; (ii) the execution
of this Agreement by such Party, and the performance by such Party of its
obligations and duties hereunder, do not and will not violate any agreement to
which such Party is a party or by which it is otherwise bound including, with
respect to MF, the Exhibitor Agreements; (iii) when executed and delivered by
such Party, this Agreement will constitute the legal, valid and binding
obligation of such Party, enforceable against such Party in accordance with its
terms; and (iv) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
which are not expressly provided for in this Agreement.
ARTICLE 10
Indemnity
10.1 Indemnity by RS. RS shall indemnify and hold harmless MF, its
---------------
Affiliates, and its and their directors, officers, employees and agents
(collectively, the "MF Indemnitees"), from and against any Losses incurred,
arising out of or resulting from: (i) any actual or alleged breach by RS of any
of its representations or warranties under this Agreement; (ii) RS's performance
of, or failure to perform, the Services; (iii) any actual or alleged
infringement of any patent, copyright, trademark, trade name, trade secret, or
other proprietary right by any Enhancements or any other software, hardware or
products provided by or on behalf of RS, except to the extent that such Losses
arise out of or result from the modification of such Enhancements by such MF
Indemnitee or its independent contractors other than at the direction of RS or a
RS Affiliate, and except to the extent such Losses result from compliance with
specifications provided by MF which such infringement otherwise could not
reasonably have been avoided by RS; and (iv) RS's actions in connection with the
migration of any Exhibitor from the MARS System to an RS proprietary exhibitor
point-of-sale system or associated hardware.
10.2 Indemnity by MF. MF shall indemnify and hold harmless RS, its
---------------
Affiliates, and its and their respective directors, officers, employees and
agents (collectively, the "RS Indemnitees"), from and against any Losses
incurred, arising out of or resulting from (i) any actual or alleged breach by
MF of any of its representations or warranties under this Agreement; (ii) any
actual or alleged infringement of any patent, copyright, trademark, trade name,
trade secret, or other proprietary right by the MARS System, or any other
software, hardware or products provided to the Exhibitor by or on behalf of MF,
excluding any Enhancement, except to the extent that such Losses arise out of or
result from the modification of the foregoing by such RS Indemnitee or its
independent contractors other than at the direction of MF or a MF Affiliate, and
except to the extent such Losses result from compliance with specifications
provided by RS which
-14-
such infringement otherwise could not reasonably have been avoided by MF; (iii)
MF's cessation of the business associated with the MARS System as contemplated
by this Agreement; and (iv) the Exhibitor Agreements, except with respect to
Losses incurred, arising out of or resulting from RS's performance of, or
failure to perform, the Services.
10.3 Procedure. Any MF Indemnitee or RS Indemnitee (each an
---------
"Indemnitee") shall notify the indemnifying Party promptly in writing of an
indemnifiable claim or cause of action under Section 10.1 or 10.2 upon receiving
notice or being informed of the existence thereof; provided, however, that
failure to notify the indemnifying Party of an indemnifiable claim or cause of
action shall not relieve the indemnifying Party of its obligation to provide
indemnification hereunder except to the extent that such failure prejudices the
indemnifying Party's ability to defend or settle such claim or cause of action.
The indemnifying Party shall assume, at its cost and expense, the sole defense
of such claim or cause of action through counsel selected by the indemnifying
Party that is reasonably acceptable to the Indemnitees. The Indemnitees shall
cooperate in the defense of such claim or cause of action and may retain
separate counsel at their sole cost and expense (except that the indemnifying
Party shall be responsible for the fees and expenses of the separate co-counsel
to the extent that the Indemnitees reasonably conclude that the counsel selected
by the indemnifying Party has a conflict of interest). The indemnifying Party
shall maintain control of such defense, including any decision as to settlement,
provided that the indemnifying Party shall not, without the Indemnitees' prior
written consent, compromise or settle any claim, suit or proceeding if such
compromise or settlement would impose an injunction or other relief upon the
Indemnitees or if such compromise or settlement does not include as an
unconditional term thereof the claimant's release of the Indemnitees from all
liability relating to such claim, suit or proceeding. The indemnifying Party
shall bear the total costs of any court award or any settlement of such claim or
cause of action approved by the indemnifying Party and all other costs, fees and
expenses related to the resolution thereof (including reasonable attorneys'
fees, except for attorneys' fees for which the Indemnitees are responsible).
ARTICLE 11
LIMITATION OF LIABILITY
EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A CLAIM OF
INDEMNIFICATION PURSUANT TO SECTION 10.1 OR SECTION 10.2 OR FRAUD OR INTENTIONAL
MISREPRESENTATION UNDER THIS AGREEMENT, (1) NO PARTY SHALL BE LIABLE TO THE
OTHER PARTIES HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY,
CONSEQUENTIAL OR PUNITIVE DAMAGES, AND (2) NEITHER PARTY'S TOTAL LIABILITY
HEREUNDER SHALL EXCEED ***.
- -----------
***Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
-15-
ARTICLE 12
DISPUTE RESOLUTION
In the event a dispute or disagreement arises relating to this Agreement,
the Parties shall attempt to settle amicably by good faith discussions any such
dispute or disagreement between or among them. If the Parties are unable to
resolve the dispute or disagreement by such discussions within five business
days, then each entity involved in the dispute or disagreement shall refer the
dispute or disagreement for resolution to a designated officer. In the case of
MF the designated officer shall be Paul Baker. In the case of RS the designated
officer shall be John Heyman. The designated officer of any of the Parties may
be changed at any time by written notice to each of the other Parties. The
designated officers of each of the Parties shall meet within five business days
of the date the designated officers received the referral of such dispute or
disagreement. The designated officers shall meet in an agreed-upon location (or
Washington, D.C. if the Parties are unable to agree upon a location) and shall
continue to meet and engage in a good faith attempt to resolve such dispute or
disagreement for at least three business days. In the event the dispute or
disagreement is not resolved after such meetings, either Party may pursue any
other remedies available under this Agreement in law or equity. Notwithstanding
the foregoing, any Party may seek expedited injunctive relief at any time.
ARTICLE 13
Term and Termination
13.1 Term. This Agreement shall commence on the Effective Date and shall
----
continue in full force and effect thereafter unless and until it is terminated
or expires in accordance with the provisions of this Agreement (the "Term").
13.2 Expiration. This Agreement shall expire if and when all Exhibitor
----------
Agreements have expired or have been effectively terminated in accordance with
their terms.
13.3 Termination For Breach. Either Party may terminate this Agreement
----------------------
at any time in the event of a material breach by the other Party which remains
uncured after the breaching party has had ninety (90) days written notice
thereof.
13.4 Termination of License. If this Agreement is terminated by MF
----------------------
pursuant to Section 13.3, then notwithstanding anything to the contrary in this
Agreement the license granted in Section 7.1(b) shall be deemed terminated.
13.5 Survival. Sections 2.1, 7.2, 7.3, 13.4 and 13.5 and Articles 6
--------
(with respect to payment obligations which accrued prior to the termination or
expiration of this Agreement), 8, 9, 10, 11, 12 and 14 shall survive the
termination or expiration of this Agreement.
-16-
ARTICLE 14
MISCELLANEOUS
14.1 Compliance with Laws. In performing its obligations and duties
--------------------
under this Agreement, MF and RS shall comply with all laws and regulations
applicable to the performance of such obligations and duties and obtain and pay
for all licenses, permits and approvals necessary for it to perform such
obligations and duties.
14.2 Binding Effect; Assignment. This Agreement may not be assigned, in
--------------------------
whole or in part, by any Party without the prior written consent of the other
Party, which consent may be withheld for any or no reason, except that either
party may assign this Agreement, or any its rights or duties hereunder, to any
Affiliate or any Person acquiring all or substantially all of its assets,
provided that the assigning party remains liable for the performance of all of
the assigning party's obligations hereunder by the assignee. Any attempted
assignment by any Party other than as expressly permitted pursuant to this
Section 14.2 shall be null and void. This Agreement shall inure to the benefit
of and be binding upon each of the Parties hereto and their respective
successors and permitted assigns.
14.3 Bankruptcy. Any Party's failure to assert its right to retain its
----------
benefits under this Agreement in accordance with 11 U.S.C. (S)365(n)(1)(B) (as
may be amended from time to time) shall not be construed as a termination of
this Agreement by such Party under 11 U.S.C. (S)365(n)(1)(A) (as may be amended
from time to time).
14.4 Governing Law. This Agreement shall be governed by the laws of the
-------------
Commonwealth of Virginia applicable to contracts made and to be performed
entirely within such jurisdiction and without giving effect to the choice or
conflict of laws, rules or principles of the Commonwealth of Virginia or of any
other jurisdiction.
14.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts and may be executed by facsimile signature. All counterparts shall
collectively constitute one and the same Agreement.
14.6 Notices. In any case where any notice or other communication is
-------
required or permitted to be given hereunder, such notice or communication shall
be in writing and deemed to have been duly given and delivered: (a) if delivered
in person, on the date of such delivery; (b) if sent by overnight express or
registered or certified mail (with return receipt requested), on the date of
receipt of such mail; or (c) if sent by confirmed facsimile transmission, on the
date of such facsimile transmission provided that notice is also sent on the
same day by one of the methods set forth in (a) or (b) above. Such notice or
other communication shall be sent to the following address(es) (or such other
address(es) of which the receiving Party has made the sending Party aware or of
which the sending Party is:
-17-
If to MF:
22000 AOL Way
Dulles, VA 20166
Facsimile: 703-265-0006
Attention: Paul F. Baker, Vice President
Copy to:
America Online, Inc.
22000 AOL Way
Dulles, VA 20166
Facsimile: 703-265-1105
Attention: General Counsel
If to RS:
Radiant Systems, Inc.
3925 Brookside Parkway
Alpharetta, GA 30022
Facsimile: 770-360-7325
Attention: John H. Heyman, Executive Vice President
Copy to:
Radiant Systems, Inc.
3925 Brookside Parkway
Alpharetta, GA 30022
Facsimile: 770-619-4669
Attention: General Counsel
14.7 Entire Agreement. The terms and conditions contained in this
----------------
Agreement (including the Exhibits attached hereto), constitute the entire
agreement between the Parties relating to the subject matter hereof and shall
supersede all previous agreements and communications between the Parties with
respect to the subject matter of this Agreement.
14.8 Amendment. Except as expressly provided otherwise in this
---------
Agreement, this Agreement may be varied, amended or extended only by the written
agreement of the Parties through their duly authorized officers or
representatives, specifically referring to this Agreement.
14.9 Severability. In the event that any provision of this Agreement is
------------
held to be illegal, invalid or unenforceable in a final, unappealable order or
judgment (each such provision, an "invalid provision", then such provision shall
be severed from this
-18-
Agreement and shall be inoperative, and the Parties promptly shall negotiate in
good faith a lawful, valid and enforceable provision that is as similar to the
invalid provision as may be possible and that preserves the original intentions
of the Parties, while the remaining provisions of this Agreement shall remain
binding on the Parties hereto. Without limiting the generality of the foregoing
sentence, in the event a change in any applicable law, rule or regulation makes
it unlawful for a Party to comply with any of its obligations hereunder, the
Parties shall negotiate in good faith a modification to such obligation to the
extent necessary to comply with such law, rule or regulation that is as similar
in terms to the original obligation as may be possible while preserving the
original intentions of the Parties to the maximum extent feasible.
14.10 Headings. The descriptive headings of the Articles and Sections of
--------
this Agreement and its Exhibits are inserted for convenience only and do not
constitute a part of this Agreement.
14.11 No Waiver of Rights. No failure or delay on the part of a Party in
-------------------
the exercise of any power or right hereunder shall operate as a waiver thereof.
No single or partial exercise of any right or power hereunder shall operate as a
waiver of such right or of any other right or power. The waiver by any Party of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any other or subsequent breach hereunder. No waiver shall be
effective unless in writing signed by the waiving Party.
14.12 Remedies Cumulative. Unless expressly provided otherwise in this
-------------------
Agreement all rights and remedies granted to each Party under this Agreement are
cumulative and in addition to, and not in lieu of, any other rights or remedies
otherwise available to such Party at law or in equity.
14.13 No Third Party Beneficiaries. This Agreement is entered into
----------------------------
solely among, and may be enforced only by, the Parties hereto; and this
Agreement shall not be deemed to create any rights in any third parties,
including suppliers and customers of any Party, or to create any obligations of
a Party to any such third parties .
14.14 Export Controls. Each Party agrees to comply fully with all
---------------
relevant export laws and regulations of the United States to ensure that no
information or technical data provided pursuant to this Agreement is exported or
re-exported directly or indirectly in violation of law.
14.15 Press Releases. Each Party will submit to the other Party, for
--------------
their prior written approval, which will not be unreasonably withheld, delayed
or conditioned, any press releases related to the transactions contemplated
hereunder or referencing the other Party (the "Releases"). Each Party will
solicit and reasonably consider the views of the other Party in designing and
implementing such Releases.
14.16 Usage. Wherever any provision of this Agreement uses the term
-----
"including" (or "includes"), such term shall be deemed to mean "including
without
-19-
limitation" and "including but not limited to" (or "includes without
limitation" and "includes but is not limited to") regardless of whether the
words "without limitation" or "but not limited to" actually follow the term
"including" (or "includes").
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
executed by their duly authorized officers as of the Effective Date.
MOVIEFONE, INC.
By: /s/ Ronald E. Grant
----------------------
Name: Ronald E. Grant
----------------------
Title: Senior Vice President
----------------------
RADIANT SYSTEMS, INC.
By: /s/ Chris Lybeer
----------------------
Name: Chris Lybeer
----------------------
Title: Vice President
----------------------
AMERICA ONLINE, INC.
By: /s/ Ronald E. Grant
----------------------
Name: Ronald E. Grant
----------------------
Title: Senior Vice President
----------------------
-20-
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.1
EXHIBIT A
[Reserved]
A-1
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.1
EXHIBIT B
EXHIBITORS
----------
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
*** ***
***
- ------------
***Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
B-1
EXHIBIT C
EXHIBITOR AGREEMENTS
--------------------
1. Mars Warranty and Service Agreement dated August 13, 1998 between MF and UA.
2. Mars Software License, Warranty, and Service Agreement - Standard Terms and
Conditions - two pages only - between MF and ***.
- ----------
*** Denotes information that has been omitted from the Exhibit pursuant to a
confidential treatment request filed with the Commission.
C-1
EXHIBIT D
TRANSITION PLAN
---------------
[See Attached]
D-1
EXHIBIT E
AMENDMENT TO MARKETING
----------------------
AND DEVELOPMENT AGREEMENT
-------------------------
[See Attached]
E-1
EXHIBIT F
DISCLOSURES UNDER SECTION 9.2
-----------------------------
*** has threatened Actions or Proceedings against MF, and MF has received
notices and claims alleging various violations or breaches of, or defaults
under, ***'s Exhibitor Agreement. MF has notified *** that MF will not ship
hardware replacements to ***'s locations until MF's outstanding invoices to ***
are addressed.
MF has notified *** that ***'s nonpayment under its Exhibitor Agreement may
constitute a breach of the Exhibitor Agreement and that all services under the
Exhibitor Agreement will be terminated on February 2, 2001 unless payment issues
are addressed.
- ------------
***Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
F-1