Exhibit 10.45


 


EXECUTION                                                                                                                                 
CONFIDENTIAL


OVERTURE SEARCH SERVICES AGREEMENT


 


      This Overture Search Services Agreement (the “Agreement”) is
effective as of May 1, 2002 (“the “Effective Date”) and entered into by and
between Overture Services, Inc. (“Overture”), a Delaware corporation with
offices at 74 North Pasadena Avenue, 3d Floor, Pasadena, CA 91103, and Yahoo!
Inc. (“Yahoo”), a Delaware corporation with offices at 701 First Avenue,
Sunnyvale, CA 94089, and hereby supercedes in its entirety the Overture Search
Services Agreement entered into as of November 13, 2001 by and between Overture
and Yahoo, as amended by the letter agreement regarding the treatment of
[*]-related search queries entered into as of December 14, 2001, the letter
agreement regarding the treatment of search queries submitted by AU/NZ Users
entered into as of April 2, 2002 and the letter agreement regarding the
treatment of “Search in other Search Engines” links entered into as of April 2,
2002, and as clarified by the clarifying letter regarding the parties’ intent
with respect to Impressions dated February 14, 2002 (collectively, the “Prior
Agreement”).


 


RECITALS


 


      WHEREAS, Overture has developed certain technology and
functionality for matching particular keyword requests with a set of search
results, for providing the results of that match via the Internet and then enabling
users to follow a link to a designated page for advertisers which comprise the
results of such match; and


 


      WHEREAS, Yahoo is a global Internet media company that offers
a branded network of media, communications and commerce services to more than
220 million users worldwide; and


 


      WHEREAS, Overture and Yahoo desire to enter into a strategic
relationship whereby Overture will provide Yahoo with search results in
response to search queries conducted through Yahoo’s principal directory to the
World Wide Web, and the parties will share revenue generated from these search
results, as further described in this Agreement.


 


      NOW, THEREFORE, in consideration of the mutual promises and
conditions contained herein, and for good and valuable consideration, the
parties agree as follows:


 


AGREEMENT


 


1.    Definitions. The following capitalized terms have the meanings
set forth


       below.


 


      1.1   Actual Click
means any click on an Overture Result by a U.S. User


             derived from an Impression, including but not limited
to all


             [*] Clicks, as measured by Overture.


 


      1.2   Above the Fold
means placement within the visible portion of a page,


             when viewed via Microsoft’s principal “Internet
Explorer” browser


             product (U.S. versions 4.0 and higher) under the
default Internet


             Explorer browser settings in a maximized browser
window on a


             computer screen at a resolution of 800 pixels wide by
600 pixels


             high, such that the user need not scroll down or to
the right or to


             the left in order to see an item so placed.


 


      1.3   Advertiser means
any third party or an agent thereof (e.g., an


             advertising agency), excluding [*] and any agents
thereof, who has


             entered into a contractual relationship with Overture
that obligates


             the third party to pay Overture (whether cost per
click, cost per


             action, cost per impression, paid inclusion,
pay-for-placement or


            other means of cash compensation) every time a user
clicks on a link


             to that third party’s web site.


 


      1.4   Affiliate means
any entity worldwide, including but not limited to


             corporations, partnerships, joint ventures and limited
liability


             companies, in
which another party directly or indirectly


 


* Certain information on this page
has been omitted and filed separately with


  
the Commission. Confidential treatment has been requested with respect
to the


  
omitted portions.


 


 

















 


 


EXECUTION                                                           CONFIDENTIAL


 


            holds at least a majority ownership, equity, or
financial interest.


 


      1.5   Bidded Click
means an Actual Click other than a [*] Click, as


            measured by Overture.


 


      1.6   Click-Through
Rate or CTR means (i) when calculating Overture’s CTR,


            the percentage of all Impressions on which Overture
Results are


            displayed that receive a Bidded Click and (ii) when
calculating


            Yahoo’s CTR, the percentage of all impressions of Yahoo
Search


            Results Pages on which Yahoo Results are displayed that
receive a


            click, excluding all clicks that are determined by
Yahoo to be [*]


            (e.g., a user repeatedly clicking on a particular Yahoo
Result


            within a finite period of time, or an activity by a
bot, macro


            program, Internet agent or any other automatic means),
which Yahoo


            shall calculate in a substantially consistent manner
across the


            Yahoo Network.


 


      1.7   Confidential
Information has the meaning set forth in Section 12.1


            below.


 


      1.8   Effective Date
has the meaning set forth in the preamble above.


 


      1.9   Estimated Clicks
means the following amounts during the Quarters


            shown below (Q1 means the Quarter beginning on May 1,
2002):


 


 


          
—------------------------------------------------------------


           Q1                                         [*] Bidded Clicks


  
        —------------------------------------------------------------


           Q2                                         [*] Bidded Clicks


          
—------------------------------------------------------------


           Q3                                         [*] Bidded Clicks


          
—------------------------------------------------------------


           Q4                                         [*] Bidded Clicks


          
—------------------------------------------------------------


           Q5                                         [*]
Bidded Clicks


          
—------------------------------------------------------------


           Q6                                         [*] Bidded Clicks


           —------------------------------------------------------------


           Q7                                         [*] Bidded Clicks


          
—------------------------------------------------------------


           Q8                                         [*] Bidded Clicks


           —------------------------------------------------------------


           Q9                                         [*] Bidded Clicks


          
—------------------------------------------------------------


           Q10                                       [*] Bidded Clicks


          
—------------------------------------------------------------


           Q11                                       [*] Bidded Clicks


          
—------------------------------------------------------------


           Q12                                       [*] Bidded
Clicks


          
—------------------------------------------------------------


           Each Quarter of any Extension


           Term                                     [*] Bidded Clicks


           —------------------------------------------------------------


 


 


      1.10  Estimated Yahoo
Payments means the following amounts during the


            Quarters shown below (Q1 means the Quarter beginning on
May 1,


            2002):


 


 


 


           —------------------------------------------------------------


           QUARTER                            ESTIMATED YAHOO PAYMENT


          
—------------------------------------------------------------


 


           Q1                                 $[*]


           —------------------------------------------------------------


           Q2                                 $[*]


          
—------------------------------------------------------------


           Q3                                 $[*]


           —------------------------------------------------------------


           Q4                                 $[*]


          
—------------------------------------------------------------


           Q5                                 $[*]


           —------------------------------------------------------------


           Q6                                 $[*]


          
—------------------------------------------------------------


           Q7                                 $[*]


           —------------------------------------------------------------


           Q8                                 $[*]


          
—------------------------------------------------------------


           Q9                                 $[*]


           —------------------------------------------------------------


           Q10                               $[*]


          
—------------------------------------------------------------


           Q11                               $[*]


           —------------------------------------------------------------


           Q12                               $[*]


          
—------------------------------------------------------------


           Each Quarter of any Extension


           Term                             $[*]


           —------------------------------------------------------------


 


 


 


      1.11  Equivalent
Search Product means a search listings product or


            service, including but not


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


 


2

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


            limited to any updates, upgrades and enhancements made
by Yahoo or a


            Yahoo Affiliate thereto, that (a) [*] equivalent to a
search


            listings product or service operated by Overture at any
time during


            the Term to supply Overture Results or other
Overture-supplied


            search results under this Agreement; (b) is developed
[*] Yahoo or a


            Yahoo Affiliate by [*]; and (c) is operated and used by
Yahoo or a


            Yahoo Affiliate.


 


      1.12  Excluded Terms
means those terms set forth in Exhibit G, as updated


            from time to time [*] in writing pursuant to Section
4.5 below,


            for which Overture is precluded from delivering
Overture Results to


            Yahoo.


 


      1.13  Extension Term
means either of the two extension periods set forth


            in Section 10 below.


 


      1.14  Featured
Sections means the rectangular graphical areas on the Yahoo


            Search Results Pages in which Overture Results are
displayed (and,


            according to Section 4.4, in which the Yahoo Result
might be


  
         displayed), which
comprises the Featured Top Section and the


            Featured Bottom Section, as further described in
Section 5.2 below.


 


      1.15  [*] Clicks means
any Actual Click that is determined by Overture’s


            “click protection system” to be [*] (e.g., a user
repeatedly


            clicking on a particular Overture Result within a
finite period of


            time, or an activity by a bot, macro program, Internet
agent or any


            other automatic means), which “click protection system”
shall


            calculate [*] Clicks in a substantially consistent
manner across all


            implementations of Overture’s search results and,
subject to


            reasonable modifications made by Overture, throughout
the Term.


 


      1.16  Gross Revenue means amounts earned by
Overture from Bidded Clicks,


            less (i) [*]% to account for bad debt and credit card
processing


            fees; and (ii) any refunds Overture pays to its
Advertisers derived


            from [*] Clicks. For purposes of clarity, Overture does
not


            recognize amounts for [*] Clicks.


 


      1.17  Guaranteed Fixed
Payment means those payments set forth in Section


            8.1 below.


 


      1.18  Guaranteed
Impressions means the following amounts during the


            Quarters set forth below:


 


 


 


           —------------------------------------------------------


           Q1                                      [*] Impressions


           —------------------------------------------------------


           Q2                                      [*] Impressions


           —------------------------------------------------------


           Q3                                      [*] Impressions


           —------------------------------------------------------


           Q4                                      [*] Impressions


           —------------------------------------------------------


           Q5                                      [*] Impressions


           —------------------------------------------------------


           Q6                                      [*] Impressions


           —------------------------------------------------------


           Q7                                      [*] Impressions


           —------------------------------------------------------


           Q8                                      [*] Impressions


           —------------------------------------------------------


           Q9                                      [*] Impressions


           —------------------------------------------------------


           Q10                                    [*] Impressions


           —------------------------------------------------------


           Q11                                    [*] Impressions


   
       —------------------------------------------------------


           Q12                                    [*] Impressions


           —------------------------------------------------------


           Each Quarter of any Extension 


           Term                                  [*] Impressions


           —------------------------------------------------------


 


 


      1.19  Impression means
the display by Yahoo of each and every Yahoo Search


            Results Page in response to a Yahoo Search Query, as
measured by


            Yahoo, except for those Yahoo Results Pages (a) for
which Overture


            does not deliver Overture Results as a result of (i) a
Yahoo


            Technical Lapse (as defined in the Service Level
Agreement); (ii)


            noncompliance by
Yahoo with the Service Level Agreement attached as


            Exhibit A (e.g., where Yahoo delivers too many Yahoo
Search Queries


            per second); or (iii) the suppression or removal of
Overture


 


 


* 
Certain information on this page has been omitted and filed separately
with


  
the Commission. Confidential treatment has been requested with respect


  
to the omitted portions.


 


 


3

















 


 


EXECUTION                                                           CONFIDENTIAL


 


            Results according to Sections 4.2 or 4.5 below; (b)
displayed in


            response to Yahoo Search Queries submitted from “next”
pages in


            excess of [*]% of the total Yahoo Search Queries for the
applicable


            Quarter; (c) displayed in response to test queries
submitted by


            Yahoo in accordance with the Service Level Agreement
(e.g., Yahoo


            pinging Overture servers to ascertain performance),
which queries


            Yahoo will
identify as such in accordance with Section 8.4(f) below;


            or (d) failure by Overture to deliver Overture Results
due to a


            force majeure event as described in Section 16.7 below.
For clarity,


            the exclusions set forth in subsections (a)-(d) above
set forth the


            [*] which the display by Yahoo of a Yahoo Search
Results Page in


            response to a Yahoo Search Query will not constitute an
Impression


            under this Agreement (e.g., all Search Results Pages on
which Yahoo


            displays no Overture Results in accordance with a “no
results


            delivered” response from Overture will constitute
Impressions under


            this Agreement).


 


      1.20  Initial Term
means the period commencing on the Effective Date and


            continuing until April 30, 2005.


 


      1.21  [*]


 


      1.22  Licensed
Materials means the Overture API, the Overture Results and,


            if any, the Overture Marks provided by Overture to
Yahoo in


 
          accordance with this
Agreement.


 


      1.23  Main Body Search
Results means all search results displayed in the


            Non-Featured Sections of the Yahoo Search Results
Pages.


 


      1.24  Measurement
Period means the period from the first day of the first


            Quarter in which the [*] is less than the [*] until the
last day of


            the first Quarter in which the [*] is less than the
[*].


 


      1.25  Modeled Metrics
means the following amounts during the Quarters


            shown below (Q1 means the Quarter beginning on May 1,
2002):


 


 


           —----------------------------------------


           QUARTER                   [*]


           —----------------------------------------


 


           Q1                                 [*]


           —----------------------------------------


           Q2                                 [*]


           —----------------------------------------


           Q3                                 [*]


           —----------------------------------------


           Q4                                 [*]


           —----------------------------------------


           Q5                                 [*]


           —----------------------------------------


           Q6                                 [*]


           —----------------------------------------


           Q7                                 [*]


           —----------------------------------------


           Q8                                 [*]


           —----------------------------------------


           Q9                                 [*]


           —----------------------------------------


           Q10                               [*]


           —----------------------------------------


           Q11                               [*]


           —----------------------------------------


           Q12                               [*]


           —----------------------------------------


           Each Quarter of any Extension


           Term                             [*]


           —----------------------------------------


 


 


      1.26  Non-Featured
Section means the entire portion of each Yahoo Search


            Results Page, excluding the Featured Sections.


 


      1.27  Overture
Affiliate means any entity worldwide, including but not


            limited to corporations,


 


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


4

















 


EXECUTION                                                          
CONFIDENTIAL


 


            partnerships, joint ventures and limited liability
companies, in


            which Overture directly or indirectly holds at least a
majority


            ownership, equity, or financial interest.


 


      1.28  Overture
Affiliate IP means any patents that are owned or controlled


            by an Overture Affiliate at any time during the
applicable term of


            any of the licenses granted in Section 2.5 below.
Overture Affiliate


            IP shall not mean patent claims found not to be valid
in a final


            determination by a court of competent jurisdiction.


 


      1.29  Overture API
means any proprietary XML application programming


            interfaces of Overture, and any successors thereto or
replacements


            thereof, that enable the exchange of Yahoo Search
Queries and


            Overture Results between the parties in accordance with
this


            Agreement.


 


      1.30  Overture
Disqualified Entity means those entities listed in Exhibit


            J, which list will [*] and may be updated by Overture
according to


            Section 2.5(d) below, with which Overture [*].


 


      1.31  Overture
Licensed IP means any patents that are owned or controlled


            by Overture at any time during the applicable term of
any of the


            licenses granted in Section 2.5 below. Overture
Licensed IP shall


            not mean patent claims found not to be valid in a final


            determination by a court of competent jurisdiction.


 


      1.32  Overture Marks
means any or all of the following, as provided by


            Overture and in which Overture has prior rights: (a)
the mark


            “Overture” in typed form and stylized formats; (b) a
circular


            center, surrounded by three concentric circular rings
(the “Overture


            Logo,” as modified from time to time by Overture); (c)
any words or


            phrases in which Overture has intellectual property
rights; (d) any


            word, symbol or device, or any combination thereof,
used or intended


            to be used by Overture to identify, to indicate the
source of origin


            or to distinguish Overture’s products or services from
the products


            or services of others; and (e) any updates to the
foregoing.


 


      1.33  Overture Reports
means all information and data that falls within


            the categories set forth in Exhibit F, which
information and data


            Overture will
provide to Yahoo according to Section 8.4(b).


 


      1.34  Overture Results
means the search results provided by Overture in


            response to a Yahoo Search Query under this Agreement,
which search


            results (a) include only those search results provided
by


            Advertisers; (b) do not include search results that are
not capable


            of generating Gross Revenue (e.g., search results
included as a


            bonus or a charitable donation); and (c) contain a title
and


            description for display by Yahoo according to Section
4.3(a) below.


 


      1.35  Overture Site
means the web site operated by or on behalf of


            Overture, which is dedicated to the display by Overture
of paid


            search results and currently located at
http://www.overture.com.


 


      1.36  Paid Advertising
means any form of on-line advertising or promotion


            for which Yahoo receives compensation in the form of
cash or barter


            from either the party being promoted or a third party
acting on


            behalf of the promoted party.


 


      1.37  Paid Inclusion
means that, in exchange for a cash payment from a


            third party, a search engine will guarantee to index
(but not


            necessarily to display) pages from that third party’s
web site.


 


      1.38  Price Per Click
or PPC means the average price per click that


            Overture earned from its Advertisers on the Yahoo
Search Results


            Pages during the Quarter.


 


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


 


5

















 


 


EXECUTION                                                           CONFIDENTIAL


 


      1.39  Quarter means
the three calendar month periods beginning May,


            August, November and February of each year of the Term.


 


      1.40  Redesign means
any change to any element of a Yahoo Search Results


            Page implemented by Yahoo.


 


      1.41  Required Number
of Overture Results means, with respect to the


            Featured Top Section, three Overture Results (where
such number is


            subject to reduction under Sections 4.4 and 4.5) and,
with respect


            to the Featured Bottom Section, two Overture Results.
The numbers


            for both the Featured Top Sections and the Featured
Bottom Sections


            are subject to increase under Section 4.3(b).


 


      1.42  Restricted Search Results means any [*]
search results that are (a)


            [*] the Overture Results or to the Main Body Search
Results (e.g.,


            [*]); (b) displayed by Yahoo on [*] in response to a
user’s [*]


            search query [*] comprised of a keyword or phrase,
which search


            query is submitted [*] for the provision of search
results; and (c)


            assembled on the basis of a [*] administered process in
which


            advertisers pay to [*] their search results for a
particular keyword


            or phrase, where payment can take the form of cost per
click, cost


            per action, cost per impression, Paid Inclusion,
pay-for-placement


            or any other means of cash compensation paid by the
advertiser [*].


 


      1.43  Revenue Share
Payment has the meaning set forth in Section 8.2


            below.


 


      1.44  Search Results
Characteristics means all aspects of the Yahoo


            Results, Overture Results and Main Body Search Results,
including


            but not limited to, left and right margins, pictures or
images


            associated with the search results, text size, color,
font, heading,


            shading/background, spacing, blank areas, length,
existence of URL,


            and all other aspects of “look and feel.”


 


      1.45  Term means the
Initial Term and, if applicable, each Extension Term


            until the expiration thereof, unless terminated as set
forth herein.


 


      1.46  Top Link
Position means the first search result position in the


            Featured Top Section, wherein Yahoo displays either a
Yahoo Result


            or an Overture Result in accordance herewith.


 


      1.47  U.S. User means
a human user (i.e., not a `bot, metaspider, macro


            program, Internet agent or any other automated means)
who, at the


            time of conducting a Yahoo Search Query, is accessing
the Internet


            from an Internet Protocol address within the United
States or


            Canada, as measured by Yahoo.


 


 
    1.48  Yahoo Affiliate means any entity worldwide,
including but not


            limited to corporations, partnerships, joint ventures
and limited


            liability companies, in which Yahoo directly or
indirectly holds at


            least a majority ownership, equity, or financial
interest.


 


      1.49  Yahoo Directory
means the browse tree (i.e., the taxonomy of


            categories through which users navigate by clicking on
category


            links) within Yahoo’s principal, U.S.-targeted directory
to the


            World Wide Web, currently located at
http://www.yahoo.com, which


            browse tree currently resolves to dir.yahoo.com.


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


6

















 


EXECUTION                                                          
CONFIDENTIAL


 


      1.50  Yahoo Foreign
Properties means Yahoo’s or a Yahoo Affiliate’s


            foreign-targeted network of media, communications and
commerce


            properties, including but not limited to those
properties that are


            branded in whole or in part by or on behalf of Yahoo or
a Yahoo


            Affiliate and presented in the local languages (e.g.,
Yahoo!


            Germany, currently located at http://www.yahoo.de) and
any other


            foreign-targeted products or services that are
developed and branded


            in whole or in part by or on behalf of Yahoo or a Yahoo
Affiliate.


 


      1.51  Yahoo Foreign
Vertical means any foreign-targeted, category-specific


            property within the Yahoo Foreign Properties that is
owned or


            operated by or on behalf of Yahoo or a Yahoo Affiliate,
including


            but not limited to those presented in the local
language (e.g.,


            Yahoo! UK Shopping, currently located at


            http://shopping.yahoo.co.uk, and Yahoo! Italia Finance,
currently


            located at
http://finance.yahoo.it).


 


      1.52  Yahoo Marks
means trademarks, service marks or graphical brand


            features of Yahoo in which Yahoo has prior rights.


 


      1.53  Yahoo Network
means Yahoo’s U.S. targeted network of media,


            communications
and commerce properties, including but not limited to


            Yahoo Search, the Yahoo Verticals and any other U.S.
targeted


            products or services that are developed and branded in
whole or in


            part by or on behalf of Yahoo or a U.S. based Yahoo
Affiliate;


            provided that any entity or property acquired,
developed, controlled


            by or branded in whole or in part by or on behalf of
Yahoo or a U.S.


            based Yahoo Affiliate after the Effective Date with
whom Overture


            has a then-existing contractual relationship will
continue to


            perform under the existing contract with Overture (to
the extent


            that such performance is within the reasonable control
of Yahoo)


            and, upon request by Overture, Yahoo shall not send any
Yahoo Search


            Queries from any such entity in the event that no
contractual


            relationship exists between the entity and Overture at
the time of


            the date of acquisition, development or branding in
whole or in


            party by or on behalf of Yahoo.


 


      1.54  [*].


 


      1.55  Yahoo Results
means search results sold, bartered or bonused by


            Yahoo that are displayed in the Top Link Position
solely on the


            first Yahoo Search Results Pages displayed in response
to a Yahoo


            Search Query (i.e., no “next” Search Results Pages),
unless Overture


            delivers the same Overture Results for any Yahoo Search
Query


            according to
Section 3.2 (in which case Yahoo will be entitled to


            display the same Yahoo Result on subsequent Yahoo
Search Results


            Pages).


 


      1.56  Yahoo Search
means the search functionality within Yahoo’s


            principal, U.S.-targeted directory to the World Wide
Web, currently


            located at http://www.yahoo.com, which search
functionality


            currently resolves either to search.yahoo.com or to


            google.yahoo.com.


 


      1.57  Yahoo Search Box
means a graphical area substantially similar in


            form to the example set forth in Exhibit B that appears
on web pages


            across the Yahoo Network, including but not limited to
the front


            page of Yahoo Search and all Yahoo Search Results
Pages, through


            which a user can only submit a search query that is [*]
a keyword or


            phrase that resolves to Yahoo Search. Additionally,
searches


            initiated by a user clicking on the “next” button on a
Yahoo Search


            Results Page and searches conducted after Yahoo
provides the user


            with the correction to a misspelled word (in which case
the user may


            click on the corrected spelling to connect to a Yahoo
Search Results


            Page) and
“Related Searches” (or similar functionality) that appear


            below the Featured Bottom Section as shown in Exhibit C
will be


            deemed as submitted through a Yahoo Search Box. For
clarity, search


            boxes that resolve to searchable directories other than
[*] or


            successor directories thereto (e.g., searches submitted
through any


            Yahoo Vertical, including but not limited to the search
box that


            resolves to the specialty directory within Yahoo’s


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


7

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


            shopping-related property) are not Yahoo Search Boxes.


 


      1.58  Yahoo Search
Query means any search query comprised of a keyword or


            phrase and initiated through the Yahoo Search Box by a
U.S. User.


            For clarity, search queries initiated through means
other than the


            Yahoo Search Box (e.g., searches initiated through any
Yahoo


            Vertical, including but not limited to the search box
that resolves


            to the specialty directory within Yahoo’s
shopping-related property)


            will not be deemed a Yahoo Search Query.


 


      1.59  Yahoo Search
Query Reports means information and data regarding (a)


            the performance of the Overture Results, to the extent
provided by


            Yahoo and not collected by Overture directly, including
but not


            limited to Impressions, the association with Yahoo of
[*] and the


            total number of test queries performed by Yahoo; (b)
the performance


            of [*], which information and data falls within the
same categories


            as those listed in Exhibit F for which Overture must
provide


            information and data about the Overture Results (e.g.,
[*] average


            cost per click and [*]); and, if applicable, (c) any
statistics


            provided by Yahoo regarding the number and type of
Yahoo Search


            Queries and U.S. Users.


 


      1.60  Yahoo Search
Results Pages means those web pages within Yahoo


            Search, excluding the Jump Page, displayed in response
to Yahoo


            Search Queries.


 


      1.61  Yahoo Top Link
Coverage means the total number of Yahoo Search


            Queries that resulted in Yahoo’s display of a Yahoo
Result, divided


            by the total number of Yahoo Search Queries, as
calculated by Yahoo


            on a Quarterly basis.


 


      1.62  Yahoo Vertical
means any U.S. targeted, category-specific property


            within the Yahoo Network that is owned or operated by
or on behalf


            of Yahoo or a U.S. based Yahoo Affiliate, including but
not limited


            to Yahoo’s travel-related property (currently located
at


            http://travel.yahoo.com), finance-related property (currently


            located at http://finance.yahoo.com), shopping-related
property


            (currently located at http://shopping.yahoo.com) and
its


            music-related property (currently located at


            http://launch.yahoo.com).


 


2.    Licenses and Ownership.


 


      2.1   Licenses by
Overture; Overture API and Licensed Materials. Subject


            to the terms and conditions of this Agreement, Overture
grants to


            Yahoo a limited, non-exclusive, non-assignable,
non-transferable,


            non-sublicensable license during the Term to use the
Overture API


            solely for the purpose of enabling the exchange of
Yahoo Search


            Queries and Overture Results between the parties in
accordance with


            this Agreement and to reproduce, reformat and publicly
display the


            other Licensed Materials provided by Overture on Yahoo
Search


            Results Pages in accordance with this Agreement. Yahoo
shall not


            cache or store any Overture Results or any other
Licensed Material.


 


      2.2   Use of Reports.


 


            (a)   Use of
Overture Reports. Yahoo may use the Overture Reports


                  and information disclosed under Section 8.4 only
to verify


                  performance and payment under this Agreement, and
may


                  reproduce the Overture Reports only as necessary
to do so.


                  [*]. Within 10 days (unless such data is needed
for a


                  potential dispute between the parties) after
expiration or


                  termination of this Agreement, Yahoo shall delete
and destroy


                  (and certify such destruction to Overture) or
return to


                  Overture any and all copies of Overture Reports
in Yahoo’s


                  possession and all copies disclosed to Yahoo
Affiliates. Other


                  than the obligation to delete, destroy or return
information,


                  this Section 2.2(a) terminates when the Agreement
terminates


                  or expires.


 


  
         (b)   Use of Yahoo Search Query Reports. Overture
may use the Yahoo


                  Search Query Reports and


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


8

















 


EXECUTION                                                          
CONFIDENTIAL


 


                  information disclosed under Section 8.4 only to
verify


                 
performance under this Agreement or, as long as the Yahoo


                  Search Query Reports are not associated with
Yahoo or


                  otherwise identifiable as being derived from
Yahoo, for its


                  internal purposes (e.g., [*]) and may reproduce
Yahoo Search


                  Query Reports as necessary to do so. [*]. Within
10 days


                  (unless such data is needed for a potential
dispute between


                  the parties) after expiration or termination of
this


                  Agreement, Overture shall delete and destroy (and
certify such


                  destruction to Yahoo) or return to Yahoo any and
all copies of


                  reports provided by Yahoo pursuant to Section
8.4(c). Other


                  than the obligation to delete, destroy or return
information,


                  this Section 2.2(b) terminates when the Agreement
terminates


                  or expires.


 


      2.3   Use of
Information and Data.


 


            (a)   Information
and Data Collected by Yahoo. All information and


                  data provided to Yahoo by users on the Yahoo
Network or the


                  Yahoo Foreign Properties or otherwise collected
from users on


                  the Yahoo Network or the Yahoo Foreign Properties
by Yahoo


                  will be retained and owned exclusively by Yahoo.
Overture


                  acknowledges that certain of that information and
data may be


                  related to the performance of the Overture Results
(the


                  “Overture Performance Data”). [*]. This Section
survives


                  expiration or termination of the Agreement.


 


            (b)  
Information and Data Collected by Overture. All information


                  and data provided to Overture by users off the
Yahoo Network


                  and the Yahoo Foreign Properties or otherwise
collected from


                  users off the Yahoo Network and the Yahoo Foreign
Properties


                  by Overture will be retained and owned
exclusively by


                  Overture. Yahoo acknowledges that certain of that
information


                  and data may be related to Yahoo Search Queries
(the “Yahoo


                  Performance Data”). [*]. This Section survives
expiration or


                  termination of the Agreement.


 


      2.4   Ownership of
Marks.


 


            (a)   Overture
Marks. Yahoo will not contest the validity of, or


                  Overture’s ownership of, any of the Overture
Marks. During the


                  Term,
Yahoo will not, in any jurisdiction, adopt, use or


                  register, or apply for registration of, whether
as a corporate


                  name, trademark, service mark or other indication
of origin,


                  or as a domain name, any Overture Marks, or any
word, symbol


                  or device, or any combination confusingly similar
to any of


                  the Overture Marks.


 


            (b)   Yahoo
Marks. Overture will not contest the validity of, or


                  Yahoo’s ownership of, any of the Yahoo Marks.
During the Term,


                  Overture will not, in any jurisdiction, adopt,
use or


                  register, or apply for registration of, whether
as a corporate


                  name, trademark, service mark or other indication
of origin,


                  or as a domain name, any Yahoo Marks, or any
word, symbol or


                  device, or any combination confusingly similar to
any of the


                  Yahoo Marks.


 


      2.5   Overture Licensed
IP.


 


            (a)   License
Grant; Yahoo Results and Exclusive Results. In


                  consideration of the rights and benefits provided
hereunder


                  (including but not limited [*]),


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


9

















 


 


EXECUTION                                                           CONFIDENTIAL


 


                  and subject to the terms and conditions of this


                  Agreement, Overture hereby grants to Yahoo during
the Term of


                  this Agreement a non-exclusive, non-assignable
(except as set


                  forth in
Section 2.5(i) below), non-sublicensable,


                  non-transferable (other than an assignment under
Section


                  2.5(i) below), world-wide [*] license, on an as
is basis,


                  under the Overture Licensed IP to [*] and use an
Equivalent


                  Search Product for the exclusive purpose of
generating Yahoo


                  Results for display in the Top Link Position and
Exclusive


                  Results as described in Sections 4.4 and 5.1(b).


 


  
        (b)    License Grant; Yahoo Verticals. Subject to
the terms and


                  conditions of this Agreement, Overture hereby
grants to Yahoo


                  and the Yahoo Affiliates a non-exclusive,
non-assignable


                  (except as set forth in Section 2.5(i) below),


                  non-sublicensable, non-transferable (other than
an assignment


                  under Section 2.5(i) below), world-wide, [*]
license


                  exercisable during the Term, on an as is basis,
under the


                  Overture Licensed IP to [*] and use an Equivalent
Search


                  Product on any Yahoo Vertical and, to the extent
that


                  Overture-supplied search results are displayed
within [*]


                  during the Term, any Yahoo Foreign Vertical;
provided that


                  Yahoo and Yahoo Affiliates will not [*] or use
the Equivalent


                  Search Product under the foregoing license until
the date that


                  is at least [*] after Yahoo gives written notice
to Overture


                  that Yahoo or a Yahoo Affiliate intends to
exercise the


                  foregoing license, and Yahoo will continue to
give Overture


                  written notice for each subsequent Yahoo Vertical
or Yahoo


                  Foreign Vertical in which it or a Yahoo Affiliate
intends to


                  exercise the foregoing license. The parties agree
to [*] to


                  discuss ways in which Overture can offer and
provide [*] on


                  Yahoo
Verticals and Yahoo Foreign Verticals. [*]. The term of


                  each license exercised by Yahoo under this
Section 2.5(b)


                  shall continue until, but in no event extend
beyond, [*],


                  unless earlier terminated by Yahoo according to
Section


                  2.5(k).


 


           (c)    License
Grant; Equivalent Search Products. Subject to


                  the terms and conditions of this Agreement,
Overture hereby


                  grants to Yahoo and the Yahoo Affiliates a
non-exclusive,


                  non-assignable (except as set forth in Section
2.5(i) below),


                  non-sublicensable, non-transferable (other than
an assignment


                  under Section 2.5(i) below), world-wide, [*]
license, on an as


                  is basis, under Overture Licensed IP to [*] and
use an


                  Equivalent Search Product solely within (1) Yahoo
Search; (2)


                  those Yahoo Verticals and Yahoo Foreign Verticals
in which


                  Overture-supplied search results are displayed as of the
day


                  before the date on which this Agreement either
expires or


                  terminates other than by reason of Yahoo’s
breach; and (3)


                  those Yahoo Verticals and Yahoo Foreign Verticals
in which


                  Overture-supplied search results have been
displayed at any


                  time during the Term, but only in the case that
Overture has


                  ceased to supply such search results to that
Yahoo Vertical or


                  Yahoo Foreign Vertical due to either Overture’s
election to


                  discontinue the applicable search service or
Yahoo’s election


                  to discontinue the applicable search service by
reason of


                  Overture’s breach; provided that Yahoo and Yahoo
Affiliates


                  will not [*] or use an Equivalent Search Product
under the


                  foregoing license until expiration of this
Agreement or


                  termination of this Agreement for any reason
other than


                  Yahoo’s breach. The term of the license set forth
in this


                  Section 2.5(c) shall continue until, but in no
event extend


                  beyond, [*], unless earlier terminated by Yahoo
according


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


 


10

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


                  to Section 2.5(k).


 


            (d)   License
Restrictions.


 


                  (1)   [*].
With respect to the licenses set forth in this


                        Section 2.5, the rights to [*] extend only to the


                        following circumstances:


 


                        (A)  
Yahoo and the Yahoo Affiliates will be entitled to


                              [*] the Equivalent Search Products;


 


                        (B)  
Yahoo and the Yahoo Affiliates will be entitled to


                              enlist Overture (subject to
Overture’s agreement)


                              either (A) [*] of the Equivalent
Search Products


                              for Yahoo or the Yahoo Affiliate; or (B) to


                              provide [*] of the Equivalent Search
Products to


                              Yahoo or the Yahoo Affiliate (e.g.,
in the case


                              that Yahoo elects to use [*] as an
Equivalent


                              Search Product, or as a component
thereof); and


 


                        (C)  
Yahoo and the Yahoo Affiliates will be entitled to


                              [*] to build all or part of the
Equivalent Search


                              Products [*]; provided that (i) the
Equivalent


                              Search Products either are owned by
Yahoo or a


                              Yahoo Affiliate or are [*] Yahoo or a
Yahoo


                              Affiliate [*]; (ii) Yahoo operates and
uses the


                              Equivalent Search Products [*]


                              Overture will be entitled to update
the list of


                              Overture Disqualified Entities from
time to time


                              in writing, [*].


 


                  (2)   [*]
Yahoo Search Boxes. Yahoo will not be entitled to


                        use any licenses hereunder in connection
with [*]


                        according to Section 3.1 below.


 


            (e)   Overture
Affiliate IP. With respect to the licenses granted


                  under this Section 2.5, Overture will undertake
all reasonable


                  efforts to cause Overture Affiliates to grant to
Yahoo


                  identical licenses under the Overture Affiliate
IP in the


                  applicable regional markets. Notwithstanding the
foregoing


                  sentence, to the extent that Overture elects to
transfer any


                  Overture
Licensed IP to any Overture Affiliate during the term


                  of any license granted under this Section 2.5,
such that the


                  affected Overture Licensed IP becomes Overture
Affiliate IP,


                  Overture will undertake all steps necessary to
ensure that


                  Yahoo maintains the licenses hereunder to that
Overture


                  Affiliate IP.


 


            (f)   Royalty.
[*], the parties agree that the royalty payable under


                  the license set forth in [*] should be [*]. For
purposes of


                  [*], a FMV royalty shall


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


 


11

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


                  mean a royalty that would be agreed upon by a
willing licensee


                  and
willing licensor in an arms length negotiation for a


                  license of a substantially similar scope to the
license


                  granted under the applicable Section. Taking
those factors


                  into account, the parties agree that the royalty
payable by


                  Yahoo for exercise of the license under [*] (the
“Applicable


                  Royalty”) shall be as follows:


 


                  (1)   Upon
Expiration. In the event of expiration of this


                        Agreement, the Applicable Royalty shall be as follows:


                        [*]


 


                  (2)   Upon
Termination. In the event of termination of this


                        Agreement under Section 15.4 (Termination
for Change of


                        Control) or other termination of this Agreement
other


                        than by reason of Yahoo’s breach, the
Applicable Royalty


                        shall be as follows:


 


                        [*]


 


                  Under no circumstances shall the FMV royalty
under [*] or the


                  Applicable Royalty under [*] be payable until
Yahoo commences


                  to exercise the applicable license thereunder,
nor shall it


                  extend beyond the term of the applicable license
(and, in no


                  event, beyond [*]).


 


            (g)   Procedure
for Determination of Royalty. Upon written notice by


                  Yahoo (1) no less than [*] days for purposes of
Section


                  2.5[*], and (2) no sooner than [*] under Section
2.5(f)(2) for


                  purposes of Section 2.5[*], Yahoo and Overture
will negotiate


                  in good faith and undertake commercially
reasonable efforts to


                  establish a FMV royalty. Upon such notice, each
party will


                  provide the other party with such information as
the


                  requesting party may reasonably request for
purposes of


                  establishing FMV, including but not limited to
information


                  concerning royalty-rates or other consideration
under any


                  other licenses granted by Overture under any
Overture Licensed


                  IP. Failure to mutually agree upon a specific
royalty within


                  [*] days after that notice will constitute an
Escalation Event


                  under Section 16.5(a) below. If the procedures
outlined under


                  Section 16.5(a) fail to resolve the royalty,
then, unless the


                  parties mutually agree upon a third party
appraiser to


                  determine FMV, the parties agree to submit the
determination


                  of the royalty to arbitration. The arbitration
will be


                  conducted in accordance with Section 16.5(b) below,
except


                  that the Panel shall hold a hearing and render
its decision


                  within 90 days after appointment of the third
arbitrator of


                  the Panel. Either party shall be entitled from
time to time to


                  request
that FMV be re-determined in accordance with the


                  provisions of this Section 2.5(g), provided that
such request


                  shall not be made within [*] months after the
previous


                  determination of FMV; such re-determined FMV
shall be used to


                  compute the Applicable Royalty prospectively,
effective as of


                  the date such re-determination is requested in
accordance with


                  the provisions of this Section 2.5(g).


 


            (h)   Other
License Provisions. At the same time and under the same


                  procedure as for the determination of a royalty
under


                  Subsection 2.5(g) above, the parties shall in
good faith


                  negotiate to determine the remaining provisions
of the


                  licenses under Sections 2.5[*], including but not


                  limited to provisions relating to payment
procedure, reporting


                  procedure, record keeping requirements, audit
procedure,


                  default and cure, termination and dispute
resolution.


 


            (i)  
Assignment. Notwithstanding the provisions of Section 16.2,


                  Yahoo may, [*] the prior


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


12

















 


 


EXECUTION                                                           CONFIDENTIAL


 


                  written consent of Overture, assign the licenses
and other


                  rights granted under this Section 2.5 to any
entity that


                  succeeds to all or substantially all of the
assets and


                  liabilities of Yahoo. Upon such assignment, the license set


                  forth in this Section 2.5 will be binding upon
and inure to


                  the benefit of the parties hereto and their
successors and


                  assigns.


 


            (j)   Covenant not to Sue. Overture, on behalf of
itself and the


                  Overture Affiliates, covenants that neither
Overture nor the


                  Overture Affiliates will sue either (1) any
advertiser for its


                  use of or participation in an Equivalent Search
Product


                  operated by Yahoo or a Yahoo Affiliate in
accordance with the


                  licenses granted hereunder; or (2) any third
party other than


                  an [*] solely for its [*] in accordance with the
licenses


                  granted hereunder. For clarity, nothing herein
shall be deemed


                  to limit any claims of Overture against any third
party with


                  respect to any act or omission other than [*] in
accordance


                  with the licenses granted hereunder.


 


            (k)  
Termination. Yahoo will be entitled to terminate the foregoing


                  licenses, in whole or as to any Overture Licensed
IP, at any


                  time on written notice to Overture. Should
Overture terminate


                  this Agreement under Section 15.2 below by reason
of Yahoo’s


                  breach of this Agreement, all licenses under this
Section 2.5


                  terminate. In addition, should Yahoo divest
itself of all or


                  part of a Yahoo Affiliate, such that the affected
Yahoo


                  Affiliate no longer is a Yahoo Affiliate as
defined hereunder,


                  all licenses under this Section 2.5 terminate
with respect to


                  that affected Yahoo Affiliate.


 


            (l)   Nothing in
this Agreement shall be construed as imposing any


                  obligation upon Overture to provide any data,
know-how or


                  other information to Yahoo or the Yahoo
Affiliates under the


                  licenses identified in this Section 2.5.


 


      2.6   Ownership;
Reservation of Rights. This Agreement is not intended to


            and shall not affect ownership by either party of any
of its


   
        intellectual property
rights, content, products and services, and


            nothing set forth in this Agreement shall be construed
as the


            assignment or transfer of any ownership rights in any
of the


            foregoing from one party to the other. Other than the
express


            licenses set forth in this Section 2, nothing in this
Agreement, and


            nothing in any press release or other statement made in
connection


            with this Agreement (including but not limited to the
press release


            planned under Section 12.3 below), will be deemed a
license (by


            implication, estoppel or otherwise) under either
party’s patent


            rights or other intellectual property rights. Nothing
in this


            Agreement, and
nothing in any press release or in any other


            statement made in connection with this Agreement, will
be deemed an


            admission by either party that any existing, planned or
contemplated


            products, services or technology of the other party
infringes or


            does not infringe its (or a third party’s) patent or
other


            intellectual property rights or that the other party’s
(or a third


            party’s) patent or other intellectual property is
valid. Likewise,


            neither party’s performance according to the terms and
conditions of


            this Agreement will in any way broaden the intellectual
property


            rights of the other party. Both parties reserve all
rights not


  
         expressly granted.


 


      2.7   Non-Waiver of
Claims. Nothing herein constitutes a waiver of any


            pre-existing claims of one party against entities, or
with respect


            to businesses, services or product lines, acquired by
the other


            party during the Term of this Agreement or the term of
a license


            under Section 2.5 above.


 


3.    Maintenance of Yahoo Search Box; Delivery of Yahoo Search
Queries.


 


      3.1   Yahoo Search
Box. Yahoo will enable all U.S. Users to initiate Yahoo


            Search Queries through the Yahoo Search Box. Yahoo will
display the


            Yahoo Search Box on the front page of Yahoo Search and
all Yahoo


            Search Results Pages. Yahoo will be entitled to display


            commerce-related “universal” search boxes (i.e.,
shopping and/or


            auctions) on the front page of Yahoo Search no


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


 


 


13

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


            more than 5 days in a month. The Yahoo Search Box shall
be the only


            [*] search functionality for general searches (e.g.,
[*]) of the


            World Wide Web displayed within the Yahoo Network
during the Term


            (e.g., [*]). Yahoo will be entitled to [*] and to
derive search


            traffic [*] (or similar search functionality) on [*]
provided that


            such search traffic is directed to the Yahoo Search
Results Pages.


            If Yahoo exercises its rights under the preceding
sentence, then the


            parties will negotiate in good faith for the purpose of
executing an


            amendment to this Agreement, which amendment will, at
Overture’s


            option, either (a) address the manner in which [*] and
the method by


            which Yahoo will be compensated for such traffic; or
(b) provide for


            the suppression of [*] for those Yahoo Search Results
Pages


            displayed in response to a Yahoo Search Query from this
[*], in


            which case the resulting Impression would not be
counted hereunder


            and the provisions of Section 7 would not apply.


 


      3.2   Yahoo Search
Queries; Delivery by Yahoo. Except as set forth in


            Section 5.4, Yahoo will send the Yahoo Search Query to
Overture each


            and every time that a U.S. User initiates a search
through a Yahoo


            Search Box. When a U.S. User submits a Yahoo Search
Query by


            clicking on the “next” button on a Yahoo Search Results
Page, Yahoo


            will differentiate the Yahoo Search Query in a manner
acceptable to


            Overture so that Overture can deliver Overture Results
that differ


            from those Overture Results appearing on the prior
Yahoo Search


            Results Pages. Notwithstanding the foregoing, Yahoo
acknowledges and


            agrees that Overture will be entitled to deliver the
same Overture


            Results for any Yahoo Search Query initiated by a
“next” button to


            the extent that Overture does not have additional
Overture Results


            for the keyword or phrase. As of the Effective Date,
the parties do


            not intend this Agreement to apply to Yahoo Search or
to any search


            functionality within a Yahoo Vertical to the extent
that the search


            functionality is accessed or enabled through wireless
or voice


            services (however, the parties may include such
wireless and voice


            services during the Term by mutual consent).


 


4.    Delivery and Maintenance of Overture Results.


 


      4.1   Delivery by
Overture. After receiving a Yahoo Search Query from


            Yahoo, Overture will deliver to Yahoo, according to the
Service


            Level Agreement attached hereto as Exhibit A, either
Overture


            Results or a response that no results are being
delivered for that


            Yahoo Search Query. Overture will be entitled to
redirect URLs


            embedded within the Overture Results in the process of
transferring


            a user to the Advertiser site promoted within the
applicable


 
          Overture Result, so
that Overture is able to record Actual Clicks.


 


            (a)   Remedies.
The parties acknowledge that it is in the financial


                  best interest of both parties to avert Unresolved
Catastrophic


                  Problems
and Recurrent Problems, as such terms are defined in


                  the Service Level Agreement attached as Exhibit A
hereto and


                  this Agreement, respectively, and that the
damages


                  attributable to such Unresolved Catastrophic
Problems and


                  Recurrent Problems would be difficult to
ascertain. Therefore,


                  the parties have specified the liquidated damages
below as a


                  reasonable estimate of such damages and as each
party’s sole


                  and exclusive remedy other than termination (in
the event of


                  an uncured, material breach pursuant to Section
15.2 below)


                  for such Unresolved Catastrophic Problems that
prevent


                  Overture
from fulfilling its delivery obligations pursuant to


                  Section 4.1 above and for Recurrent Problems. For
purposes of


                  this Section 4.1, a “Recurrent Problem” means any
Problem,


                  Severe Problem, or Catastrophic Problem (each,
individually, a


                  “Recurrent Problem Element”), or any combination
of Recurrent


                  Problem Elements, which renders the Overture
Results


                  unavailable or unusable for more than [*] in any
[*], and is


                  attributable to a single party.


 


                  (1)  
Yahoo Remedy for Unresolved Catastrophic Problems. For


                        any Unresolved Catastrophic Problem within
the


                        reasonable control of Overture, Overture
will pay to


                        Yahoo an amount calculated as [*] of Gross
Revenue that


                        Yahoo would have earned pursuant to this
Agreement


                        during the period beginning [*] after the
earlier of


                        Overture’s


 


* Certain information on this page
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the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


14

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


                        learning of, or Yahoo’s providing notice to
Overture


                        that a Problem, Severe Problem or Catastrophic
Problem


                        attributable to Overture has been detected
but not


                        resolved. Overture’s liability for such
payment will not


                        extend beyond the point in time when (i)
Overture has


   
                    resolved the
Catastrophic Problem, even if Yahoo has


                        elected to manually override pursuant to
Section IV(F)


                        of the Service Level Agreement; or (ii) a
Yahoo


                        Technical Lapse is in effect. For clarity,
Overture’s


                        liability would continue to accrue
incrementally if


                        Yahoo resolves such Technical Lapse but
Overture has not


                        resolved the Catastrophic Problem.


 


                  (2)  
Overture Remedy for Unresolved Catastrophic Problems. In


                        the event of any Unresolved Catastrophic
Problem within


                        the reasonable control of Yahoo, Yahoo will
pay to


                        Overture an amount calculated as [*] of Gross Revenue


                        that Overture would have earned pursuant to
this


                        Agreement during the period beginning [*]
after the


                        earlier of Yahoo’s learning of, or
Overture’s providing


                        notice to Yahoo that a Problem, Severe
Problem or


                        Catastrophic Problem attributable to Yahoo
has been


                        detected but not resolved. Yahoo’s
liability for such


                        payment will not extend beyond the point in
time when


                        (i) Yahoo has resolved the Catastrophic
Problem to meet


                        the acceptable performance standards set
forth in the


                        Service Level Agreement, or (ii) a technical lapse by


                        Overture (such as a Problem, Severe Problem
or


                        Catastrophic Problem attributable to
Overture) is in


                        effect. For clarity, Yahoo’s liability
would continue to


                        accrue if Overture resolves such technical
lapse but


                        Yahoo has not resolved the Catastrophic
Problem.


 


                  (3)   The
Parties’ Remedies for Recurrent Problems. The party


                        responsible for any Recurrent Problem will
pay the


                        non-breaching party (the “NBP”) an amount
calculated as


                        the [*] of Gross Revenue that the NBP would
have earned


                        during the total period in which the Recurrent
Problem


                        Elements occurred. The beginning of this
period


                        commences [*] after the party that is
responsible for


                        the Recurrent Problem initially learns of,
or receives


                        notice of, the occurrence of the first
Recurrent Problem


                        Element in the Recurrent Problem. The
liability of the


                        party responsible for the Recurrent Problem
will not


                        extend beyond the point in time when the
responsible


                        party has resolved the final Recurrent
Problem Element


                        in the Recurrent Problem and will not
include periods


                        when the NBP experiences a technical lapse
during a


                        Recurrent Problem Element. For clarity, the
responsible


                        party’s liability would continue to accrue
incrementally


                        if
the NBP resolves such technical lapse but the


                        responsible party has not resolved the
Recurrent Problem


                        Element.


 


      4.2   Suppression by
Overture. Overture will suppress delivery of certain


            Overture Results
to Yahoo in accordance with the following:


 


            (a)  
[*]-Related Overture Results. Overture will suppress


                  [*]-related Overture Results, at a minimum, to
the same degree


                  as the [*] that appear on the Overture Site as of
the


                  Effective Date. Upon receipt by Overture of [*]
Yahoo Search


                  Query for which Overture has [*] Overture
Results, Overture


                  will send to Yahoo such [*] Overture Results. For
all other


                  [*] Yahoo Search Queries, Overture shall not
return any


                  Overture Results, and if Overture does send an
Overture


                  Result, then Yahoo shall be entitled to block
such Overture


                  Result
from being displayed pursuant to Section 4.5(a) below.


                  The parties acknowledge and agree that the
delivery of


                  [*]-related Overture Results to Yahoo is not
contemplated by


                  this Agreement and, thus, [*].


 


            (b)   Overture
Results related to [*]. Overture will suppress


                  Overture Results that link directly to a page
owned or


                  operated by [*].


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


15

















 


 


EXECUTION                                                          
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            (c)   Overture
Results in response to Excluded Terms. Overture will


                  not deliver Overture Results to Yahoo in response
to a U.S.


                  User’s search of the Yahoo Search for an Excluded
Term.


 


            (d)   Overture
Results identified by Yahoo. Upon a reasonable


                  request by Yahoo according to Section 4.5 below,
Overture


                  agrees to cease delivery of the affected Overture
Result.


 


            (e)  
Suppression of all Overture Results. Overture will be entitled


                  to cease delivery of all Overture Results for any
Yahoo Search


                  Query in Overture’s keyword marketplace that
triggers


                  Overture’s compliance obligations under this
Section 4.2.


 


      4.3   Display by
Yahoo. After receiving Overture Results from Overture in


            response to a Yahoo Search Query, Yahoo will display
the Required


            Number of Overture Results in the Featured Sections as
provided for


            in this Agreement, unless Overture provides less than
the Required


            Number of Overture Results to Yahoo in response to the
particular


            Yahoo Search Query, in which case Yahoo will display
all Overture


            Results provided by Overture in the Featured Sections.


 


            (a)   Order and
Appearance. On the Effective Date and during any


                  population test pursuant to the Estimated Yahoo
Payment and


                  Guaranteed Fixed Payment Adjustment Process set forth
in


                  Exhibit K, the Yahoo Search Results Page shall be
displayed as


                  provided for in Exhibit C. Yahoo will display the
Overture


                  Results in the order provided by Overture. Yahoo
will display


                  Overture
Results in the Featured Sections with Overture’s full


                  title and a truncated description, both of which
together will


                  consist of no less than 88 characters (as shown
in the mock-up


                  attached as Exhibit C hereto), as well as with
the full URL of


                  the web page associated with each Overture
Result. When viewed


                  via Microsoft’s principal “Internet Explorer”
browser product


                  (U.S. versions 4.0 and higher) on the Microsoft
Windows


                  platform or any other browser that easily
supports a mouse


                  over implementation, the title will give rise to
the full


                  description to the extent that the user passes his
or her


                  cursor over the title (a “Mouse Over”), which
Mouse Over will


                  be substantially similar in form to the example
set forth in


                  Exhibit C. Yahoo will not modify [*] of the
Overture Results,


                  except
that Yahoo will truncate the description as described


                  in the foregoing sentence. The only content in
the Featured


                  Sections shall be the Overture Results and the
Yahoo Results,


                  as provided for in this Agreement. All of the
Search Result


                  Characteristics of the Overture Results and the
Yahoo Results


                  in the Featured Sections, as well as the
Exclusive Result,


                  shall be identical. To the extent that the [*] of
the Overture


                  Results and the [*] are not identical to the Main
Body Search


                  Results, Yahoo will provide Overture with written
notice, and


                  any dispute regarding the difference between [*]
will be


                  deemed an Escalation Event that is not subject to
arbitration


                  under


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


16

















 


 


EXECUTION                                                          
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                  Section 16.5(b) below (i.e., [*]). The entire
first search


                  result in
the Featured Top Section shall appear Above the


                  Fold. The heading of the Featured Sections shall
be “Sponsor


                  Matches” or such other heading as is mutually
agreed upon by


                  the parties. Yahoo agrees that it will not [*].


 


            (b)   Increases
in the Required Number of Overture Results. Yahoo


                  will be entitled to increase the number of
Overture Results


                  that appear within the Featured Sections as long
as Yahoo (a)


                  provides Overture with no less than [*] prior
written notice


                  of the increase setting forth the keywords and
terms for which


                  the number of Overture Results shall be increased
and the


                  duration of time that the increase will last
(which in no


                  event shall be less than [*]); (b) enlarges the
applicable


                  Featured Section, as determined by Yahoo,
proportionally to


                  account for the increased number of Overture
Results; and (c)


                  confers with Overture regarding possible
revisions to the


                  Service Level Agreement in order to account for
the additional


                  Overture Results and, to the extent that the
parties cannot


                  agree on the appropriate revision or whether a
revision to the


                  Service Level Agreement is warranted at all, the
parties will


                  resolve the issue via the escalation provisions
set forth in


                  Section 16.5(a). If Yahoo elects to [*] within
the Featured


                  Sections after the date that is [*] from the
Effective Date,


                  then Yahoo will provide Overture with [*] days
prior written


                  notice, and Yahoo agrees to add one additional
Overture Result


                  to the Featured Top Section with respect to [*]
keywords or


                  phrases upon which the parties mutually agree,
which agreement


                  will not
unreasonably withheld, for the period during which


                  [*].


 


            (c)   No
Incentives to Click. Yahoo will not provide users with any


                  incentives (e.g., points or special offers) to
click on


                  Overture
Results.


 


      4.4   Preemption by
Yahoo. In response to Yahoo Search Queries, Yahoo will


            be entitled to display either (a) one Yahoo Result on
the first


            Yahoo Search Results Pages, unless Overture delivers
the same


 
          Overture Results for
any Yahoo Search Query according to Section 3.2


            (in which case Yahoo will be entitled to display the
same Yahoo


            Result on subsequent Yahoo Search Results Pages), in
the Top Link


            Position; or (b) one Exclusive Result (as defined
below) in the


            “Yahoo! Exclusives” (or similarly named) section of the
Yahoo Search


            Results Pages according to Section 5.1(b) below. If
Yahoo elects to


            display a Yahoo Result in the Top Link Section in
response to a


            particular Yahoo Search Query, then the Required Number
of Overture


            Results in the Featured Top Section for the particular
Yahoo Search


            Query will be reduced to two.


 


      4.5   Removal by
Yahoo; Potential Liability; Excluded Terms; Contextual


            Relevance. Yahoo will be entitled to block the display
of any


            Overture Result for which Overture has an obligation to
suppress


            delivery pursuant to Section 4.2 and this Section 4.5.


 


            (a)   Overture
Results that Yahoo deems Objectionable. As it


                  consistently administers its company-wide
advertising


                  policies-(e.g., [*]), Yahoo will be entitled to
block Overture


                  Results
that do not comply with such policies from the Yahoo


                  Search Results Pages or to amend the list of
Excluded Terms to


                  include any keywords or phrases to which those
Overture


                  Results relate, as reasonably determined by
Yahoo. Yahoo also


                  will be entitled to block or to request removal
of any


                  Overture Results that [*]. Yahoo also will be
entitled to


                  block or to request removal of any Overture
Results that, in


                  Yahoo’s reasonable belief, might [*] or might
[*]. In any


                  event, Yahoo agrees to notify Overture and to
provide Overture


                  with an electronic copy of the Overture Results
that give rise


                  to Yahoo’s request.


 


            (b)   Overture
Results that Yahoo deems Contextually Irrelevant. As


                  it consistently administers its Yahoo Search-wide
editorial


                  policies, Yahoo will be entitled to block or to
request


                  removal of any Overture Results that are not
contextually


                  relevant to the Yahoo Search Query. The


 


 


* 
Certain information on this page has been omitted and filed separately
with


  
the Commission. Confidential treatment has been requested with respect


  
to the omitted portions.


 


 


17

















 


 


EXECUTION                                                          
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                  parties will discuss relevancy issues in good
faith, including


                  but not limited to the means for resolving
relevancy issues


                  (e.g., revision of title and description, filter
or removal).


                  Any disagreement between Overture and Yahoo
concerning whether


                  an Overture Result is contextually relevant under
this Section


                  4.5(b) shall give rise to an Escalation Event.


 


      4.6   Yahoo
Suppression. Yahoo will suppress delivery of certain Yahoo


            Results in
accordance with the following:


 


            (a)   Results
that Overture deems Potentially Damaging. Overture


                  will be entitled to request that Yahoo not
display any Yahoo


                  Results that, in Overture’s reasonable belief,
might subject


                  Overture to criminal or civil liability.


 


            (b)   Contextual
Relevance. As it consistently administers its


                  editorial policies, Overture will be entitled to
request that


                  Yahoo not
display any Yahoo Results that are not contextually


                  relevant to the Yahoo Search Query. The parties
will discuss


                  relevancy issues in good faith, including but not
limited to


                  the means for resolving relevancy issues (e.g.,
revision of


                  title and description, filter or removal). Any
disagreement


                  concerning this Section 4.6(b) shall give rise to
an


                  Escalation Event.


 


5.    Yahoo Search Results Pages; Featured Sections.


 


      5.1   Creation and
Maintenance of Yahoo Search Results Pages. Yahoo will


            create and maintain the Yahoo Search Results Pages
during the Term


            and, except as set forth in Section 5.4, display a Yahoo
Search


            Results Page in response to the submission of every
Yahoo Search


            Query.


 


            (a)   Editorial
Control. Yahoo will be solely responsible for the


                  design, layout, “look and feel,” posting and
maintenance of


                  the Yahoo Network, including but not limited to
the Yahoo


                  Search Results Pages and any sections thereof.
Notwithstanding


                  any provision herein to the contrary, except
Section 4.3(a)


                  and the
introductory paragraph thereto which contain the


                  minimum display requirements, Yahoo will be
entitled to


                  redesign or modify [*], of the Yahoo Network,
including but


                  not limited to the Yahoo Search Results Pages and
any sections


                  thereof. Yahoo will undertake commercially
reasonable efforts


                  to provide Overture with a reasonable amount of
notice prior


                  to implementing any Redesign of the Yahoo Search
Results


                  Pages.


 


            (b)  
Pre-Approved Change to Yahoo Search Results Pages. With


                  respect to Yahoo Search Results Pages on which
Yahoo does not


                  display a Yahoo Result, Overture hereby approves
Yahoo’s


                  creation and display of a “Yahoo! Exclusives” (or
similarly


                  named) section on the Yahoo Search Results Pages,
which


                  section will include no more than one search
result (an


                  “Exclusive
Result”) and might appear above the Featured Top


                  Section.


 


            (c)  
Acknowledgement of Redesign. The parties acknowledge and agree


                  that Yahoo might implement more than one “look
and feel” for


                  the Yahoo
Search Results Pages, which “look and feel” could


                  vary based on the nature of the Yahoo Search
Query, as


                  determined by Yahoo.


 


            (d)   “Sponsor
Matches” Link. Both parties acknowledge and agree


                  that, with respect to the page to which users
navigate


                  directly from the “What are Sponsor Matches?”
link (as shown


                  on the mock-up) or other similar link on the
Yahoo Search


                  Results Page (the “Help Page”), the Help Page
that has been


                  used prior to the Effective Date shall be the
Help Page that


                  is used after the Effective Date, unless
otherwise mutually


                  agreed upon by the parties.


 


      5.2   Creation and
Maintenance of Featured Sections. Yahoo will create and


            maintain the Featured Sections on the Yahoo Search
Results Pages


            throughout the Term in accordance with the terms of


 


* 
Certain information on this page has been omitted and filed separately
with


  
the Commission. Confidential treatment has been requested with respect


  
to the omitted portions.


 


 


18

















 


 


EXECUTION                                                           CONFIDENTIAL


 


            this Agreement, including but not limited to Section
4.3(a) above.


            On the Effective Date and during any population test
pursuant to the


            Estimated Yahoo Payment and Guaranteed Fixed Payment
Adjustment


            Process set forth in Exhibit K, the Featured Sections
shall be


            displayed as provided for in Exhibit C.


 


      5.3   Blocked Content.
Yahoo will undertake commercially reasonable


            efforts not to sell advertising units (including but
not limited to


            pop-up windows) that block any portion of a user’s view
of the


            Overture Results [*].


 


      5.4   Jump Page
displayed in response to Hybrid Search Queries. With


            respect to [*] Yahoo Search Queries for which
“filtered” Overture


            Results are available (the “Hybrid Search Queries”),
Yahoo will be


            entitled to present a jump page (the “Jump Page”) to
each and every


            U.S. User in response to that U.S. User submitting a
Hybrid Search


            Query, which Jump Page will (a) inform the U.S. User
that the Hybrid


            Search Query is likely to return [*] search results;
(b) enable the


            U.S. User to navigate directly to a contextually relevant
Yahoo


            Search Results Page and, to the extent that the U.S.
User selects


            this option, Yahoo will send the Hybrid Search Query to
Overture in


            accordance with Section 3.2 above; (c) enable the U.S.
User to


            submit a new Yahoo Search Query; and, in some cases,
(d) enable the


            U.S. User to navigate directly to a page within a third
party web


            site on which contextually relevant [*] search results
are


            displayed, thereby terminating the Hybrid Search Query.
Any other


            treatment of Hybrid Queries will be subject to mutual
agreement of


            the parties. The parties acknowledge and agree that the
Jump Page


            does not constitute a Yahoo Search Results Page, and
that Yahoo’s


            treatment of Hybrid Search Queries in this manner does
not


            constitute a breach of this Agreement. The parties
further


            acknowledge and agree that the delivery of [*] Overture
Results to


            Yahoo is not contemplated by this Agreement and, thus,
Yahoo [*].


 


6.    Technical Implementation; Interaction between the Parties.


 


      6.1   Compliance with
Service Level Agreement. Each party will comply with


            the terms and conditions of the Service Level Agreement
attached


            hereto as Exhibit A.


 


      6.2   Technical
Resources; Quarterly Meetings. During the Term, each party


            will contribute those technical resources reasonably
necessary to


            facilitate the exchange of Yahoo Search Queries and
Overture Results


            and the improvement of the tracking and reporting
outlined in


            Section 8.4 below. The search product development teams
of the


            parties will meet no less than once per Quarter to
exchange


            information regarding relevance of Overture Results and
Yahoo


            Results and developing trends in the search product
market.


 


      6.3   No Disparaging
Comments. Yahoo will not post any disparaging


            comments attributable to Yahoo about Overture or the
Overture


            Results on Yahoo Search and the accompanying directory
property


            during the Term (e.g., [*]), and Overture will not post
any


            disparaging comments attributable to Overture about
Yahoo or Yahoo


            Search on the Overture Site during the Term. In
addition, during the


            Term, Yahoo agrees (a) not to use Overture’s
Confidential


            Information, the Overture Results or the Overture
Reports for the


            purpose of
selling Overture advertisers placement in any Yahoo


            search sponsor matches program; (b) not to target
Overture


            advertisers by parsing the Overture XML feed for
Overture advertiser


            contact information or by obtaining such information
from another


            source provided by Overture. Notwithstanding the
foregoing, under no


            circumstances shall this Agreement be deemed to
restrict Yahoo in


            any manner from: (1) marketing any Yahoo product or
service


            (including but not limited to any Yahoo sponsor matches
program) to


            any existing Yahoo advertiser, content provider, or
Yahoo registered


            user; (2) marketing any Yahoo product or service to any
potential


            Yahoo


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


19

















 


 


EXECUTION                                                          
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            advertiser through “one-to-one” contacts (e.g.,
telephone calls,


            letter, e-mails, sales calls); or (3) marketing any
Yahoo product or


            service through any mass media (e.g., television,
radio, print,


            online) that does not specifically target Overture
advertisers by


            name. For clarity, individual Yahoo! salespeople may
distinguish


            Yahoo! sponsor matches programs from Overture’s by
comparing aspects


            of the two programs (e.g., [*]).


 


      6.4   Co-Marketing
Opportunities. The parties agree to deliver marketing


            messages on behalf of each other via email or other
means, the


            recipients, content and timing of which will be
mutually agreed upon


            by the parties, which approval shall not be
unreasonably withheld.


 


7.    Exclusivity; Additional Domestic Opportunities; International.


 


      7.1   Exclusivity.


 


            (a)   General. Except as set forth herein, the
Overture Results will


                  be the only Restricted Search Results displayed
by Yahoo


                  within [*] during the Term. In addition, other
than Yahoo


                  Results and Exclusive Results displayed by Yahoo
in accordance


                  herewith and any search results for which Yahoo
is compensated


                  through its [*], Yahoo will not display within
Yahoo Search


                  any [*]. Finally, Yahoo will not display Paid
Advertising that


                  promotes the Restricted Search Results of any [*]
in the area


                  between the [*] and the [*] or [*] or [*] of the
Featured Top


                  Section.


 


            (b)   [*].
During the Term, Yahoo will not enter into any agreement


                  with any third party under which Yahoo is
supplied with (1)


                  [*] products for use within [*]; or (2) [*]
products for use


                  on the Yahoo Network, which [*] products (i) are
[*] to


                  Overture’s [*] search service as of the Effective
Date; and


                  (ii) assemble Restricted Search Results for
display in


                  response to general searches [*]. During the
Term, if [*]


                  offers a service outside the scope of the [*],
then Yahoo is


                  free to utilize that service on the Yahoo
Network, subject to


                  Section 7.3 below.


 


      7.2   Exclusions;
Clarifications; Acknowledgements.


 


            (a)   Exclusions;
Yahoo Listings and [*]. Notwithstanding anything


                  to the contrary in this Agreement, Yahoo will be
entitled to


                  continue to offer and grow its listings
businesses (e.g.,


                  [*]), as long as Yahoo does not place its
directory “Sponsor


                  Listings” (or similarly named listings) within
Yahoo Search in


                  a manner that [*] (for clarity, [*]). In
addition,


                  notwithstanding anything to the contrary in this Agreement,


                  Yahoo will be entitled to monetize all or part of
the Main


                  Body Search Results by


 


* 
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with


  
the Commission. Confidential treatment has been requested with respect


  
to the omitted portions.


 


 


20

















 


 


EXECUTION                                                          
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                  implementing [*], provided that Yahoo will notify
Overture,


                  and discussions arising therefrom will be deemed
an Escalation


                  Event (with the criteria being whether [*]),
before Yahoo


                  itself [*] (or instructs the [*]) to the fact
that a Main Body


  
               Search Result is
paid. Any [*] results will be displayed with


                  the same Search Result Characteristics as the
other Main Body


                  Search Results, and the [*] results may not be
displayed in a


                  separate section, but rather must be displayed
among the other


                  Main Body Search Results. Overture acknowledges
and agrees


                  that (1) Yahoo may not have control over [*]; and
(2) Yahoo


                  uses and will continue to use the fact that a web
site within


                  its directory is [*] for display in the Main Body
Search


                  Results.


 


            (b)  
Clarifications; U.S. Users. For clarity, the exclusivity set


                  forth in this Section 7 extends to U.S. Users on
Yahoo Search


                  only, unless the parties mutually agree in an
executed


                  amendment to this Agreement to broaden the
exclusivity to


                  include New Domestic Opportunities or International


                  Opportunities as set forth in Section 7.3 and 7.4
below.


 


            (c)  
Acknowledgements; European Users on Yahoo Search. Overture


                  acknowledges and agrees that Yahoo has entered
into agreements


                  with (a)
LookSmart International Pty Limited (“LookSmart


                  Australia”) under which, among other things,
LookSmart


                  Australia provides and Yahoo displays Restricted
Search


                  Results in response to search queries submitted
to Yahoo


                  Search from Internet Protocol addresses within
Australia or


                  New Zealand, as measured by Yahoo; and (b)
eSpotting Media


                  (UK) Limited (“eSpotting UK”) under which, among
other things,


                  eSpotting UK might provide and Yahoo might
display Restricted


                  Search Results in response to search queries
submitted to


                  Yahoo Search from Internet Protocol addresses
within Europe,


                  as
measured by Yahoo. Overture agrees that nothing in this


                  Agreement will be construed to prohibit,
restrict, or


                  otherwise prevent Yahoo from continuing to
participate in and


                  pursue the foregoing relationships, as long as
these pursuits


                  do not violate this Agreement. Nothing in this
provision or


                  Agreement shall be construed to constitute an
admission by


                  Overture that any third party system does not
infringe any


                  Overture intellectual property right. Further,
nothing in this


                  provision or Agreement shall preclude Overture
from asserting


                  a claim for infringement against any third party
for


                  infringement of Overture’s intellectual property or
seeking an


                  injunction against providing infringing search
results to


                  others, including Yahoo.


 


      7.3   Additional
Domestic Opportunities. If, during the Term, Yahoo elects


            to create a new opportunity for a [*] for display on
the Yahoo


            Network but outside Yahoo Search and Yahoo Directory
(the “New


            Domestic Opportunity”), then Yahoo will provide
Overture with


            written notice that sets forth Yahoo’s business
requirements for the


            New Domestic Opportunity. The parties will negotiate in
good faith


            for the purpose of executing an amendment to this
Agreement under


            which Overture will provide the New Domestic
Opportunity under


            reasonable terms and conditions. [*].


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


 


21

















 


 


EXECUTION                                                          
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      7.4   International
Opportunities. The parties will negotiate in good


            faith for the purpose of executing an amendment to this
Agreement


            under which Overture or an Overture Affiliate will
provide


            Restricted Search Results within certain mutually
agreed upon areas


            of those Yahoo Foreign Properties located within the
[*], which


            provision by Overture cannot occur until Yahoo’s or the
Yahoo


            Affiliate’s pre-existing contractual obligations with
respect to the


            display of Restricted Search Results on the [*] expire
or terminate.


            If, during the Term, Yahoo or a Yahoo Affiliate elects
to create a


            new opportunity for a third party to provide Yahoo with
Restricted


            Search Results for display on any Yahoo Foreign
Property (the


            “International Opportunity”), then Yahoo will provide
Overture with


            written notice that sets forth Yahoo’s business
requirements for the


            International Opportunity. The parties will negotiate
in good faith


            for the purpose of executing an amendment to this
Agreement under


            which Overture will provide the International
Opportunity under


            reasonable terms and conditions. [*]. Upon Overture
providing


            services in a new market under this Agreement, whenever
a user of


            such market conducts a search on Yahoo Search, Yahoo
shall display


            Overture’s search results for that market and not the
Overture


            Results.


 


8.    Overture’s Payment Obligations. Overture will make payments to
Yahoo in


      accordance with the following:


 


      8.1   Guaranteed Fixed
Payments. Overture will make the applicable


            Guaranteed Fixed Payment to Yahoo within [*] days after
the start of


            the applicable Quarter according to the schedule set
forth below,


            unless the applicable Guaranteed Fixed Payment is
reduced according


            to Section 8.7 below. If the parties reasonably believe
that a


            Revenue Share Payment will be less than the Guaranteed
Fixed Payment


            in a particular Quarter, then Overture shall pay to
Yahoo a [*]


            reasonable estimate of the next Guaranteed Fixed
Payment due (which


            reasonable estimate shall not bind either party to such
number) and,


            once the parties
determine the correct Guaranteed Fixed Payment for


            that Quarter according to Section 8.7 below, the party
that owes


            money to the other shall pay the same. If Yahoo owes
money to


            Overture, then Overture shall be entitled to reduce its
next


            payment(s) by the amount that is owed until the entire
amount has


            been repaid.


 


 


 


          
—-----------------------------------------------------------


           Quarter                             Guaranteed Fixed Payment


          
—-----------------------------------------------------------


 


           Q1                                  $[*]


          
—-----------------------------------------------------------


           Q2                                  $[*]


          
—-----------------------------------------------------------


           Q3                                  $[*]


          
—-----------------------------------------------------------


           Q4                      
           $[*]


          
—-----------------------------------------------------------


           Q5                                  $[*]


          
—-----------------------------------------------------------


           Q6                                  $[*]


          
—-----------------------------------------------------------


           Q7                                  $[*]


          
—-----------------------------------------------------------


           Q8                                  $[*]


          
—-----------------------------------------------------------


           Q9                                  $[*]


          
—-----------------------------------------------------------


           Q10                                $[*]


           —-----------------------------------------------------------


           Q11                                $[*]


          
—-----------------------------------------------------------


           Q12                                $[*]


           —-----------------------------------------------------------


 


 


* Certain information on this page
has been omitted and filed separately with


 
the Commission. Confidential treatment has been requested with respect
to the


 
omitted portions.


 


 


22























 


 


EXECUTION                                                          
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—-----------------------------------------------------------


           Each Quarter of any Extension
Term  $[*]


          
—-----------------------------------------------------------


 


 


      8.2  
Revenue Share Payments. Overture will make Quarterly revenue share


            payments (the “Revenue Share
Payments”) to Yahoo based on Gross


            Revenue in the applicable Quarter
according to the schedule set


            forth below, but only to the
extent that the applicable Revenue


            Share Payment exceeds the
applicable Guaranteed Fixed Payment made


            by Overture (e.g., if the Revenue
Share Payment for the applicable


            Quarter were to exceed the
Guaranteed Fixed Payment made by Overture


            for the applicable Quarter, then
Overture would make a payment to


            Yahoo in the amount of the
difference between the applicable Revenue


            Share Payment and the applicable
Guaranteed Fixed Payment). [*].


            Percentages of Gross Revenue apply
solely to Gross Revenue within


            each of the ranges listed below
(i.e., [*]). Revenue Share Payments


            are due and payable to Yahoo
within [*] days after the end of the


            applicable Quarter.


 


            [*]


 


            Overture will retain all revenue
that it derives from the Overture


            Results, except as specifically
set forth in this Agreement.


 


      8.3  
Advance Payment; Renewal Fee; Prior Agreement True-Up.


 


            (a)   Advance Payment. On or before the date that is [*] days after


                  the Effective Date, Overture
shall pay to Yahoo, as an advance


                  payment, [*] of the
Guaranteed Fixed Payment due for [*] as


                  specified in Section 8.1
above (the “Advance Payment”). If


                  this Agreement is terminated
prior to the end of the [*], then


                  Yahoo will apply the Advance
Payment to any amount owed by


                  Overture to Yahoo hereunder. If the Advance Payment
is greater


                  than the amount owed by
Overture to Yahoo hereunder, then the


                  difference between the
amount of the Advance Payment and the


                  amount owed by Overture to
Yahoo hereunder shall be refunded


                  to Overture within [*] days
after the effective date of


                  termination.


 


            (b)   Renewal Fee. If Yahoo irrevocably exercises its First Option


                  (as defined below) according to Section 10 below and so


                  notifies Overture in writing
no later than April 30, 2004,


                  then Overture shall pay to
Yahoo a renewal fee in the amount


                  of $2,000,000 within 60 days
after Yahoo’s notice.


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


 


23

















 


 


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            (c)   Prior Agreement True-Up. The parties acknowledge and agree


                  that, under the Prior
Agreement and in consideration of


                  Yahoo’s performance under the Prior Agreement, Overture
owes


                  additional fees in the
amount of $[*] (the “True-Up Payment”).


                  Overture shall pay the
True-Up Payment to Yahoo within [*]


                  days after the Effective
Date.


 


      8.4  
Tracking; Reporting.


 


            (a)   Tracking. Yahoo will include [*] search URLs or other source


                  feed indicators provided by
Overture (the “Tags”) for (i) [*];


                  (ii) Yahoo Search Results
Pages within the Yahoo Network


                  within which Overture
Results are displayed and (iii) any


                  search service testing
performed by Yahoo related to the


                  Overture Results. Overture
will use the Tags solely for [*].


 


            (b)   Overture Reporting. Overture will be responsible for tracking


                  and calculating Gross
Revenue and Revenue Share Payments.


                  Overture will provide Yahoo
a monthly report that sets forth


                  in reasonable detail the information listed in Exhibit F
(the


                  “Overture Reports”) in a
format to be mutually agreed upon by


                  the parties. All reports
provided hereunder will be


                  accompanied by a certificate
of accuracy, signed by Overture’s


                  Chief Financial Officer or
similar officer with responsibility


                  for the reporting function.


 


            (c)   Yahoo Reporting. Yahoo will provide Overture with access to


                  either offline reports or an online database (and
each of


                  which will be deemed Yahoo
Search Query Reports to the extent


                  reduced to tangible form by
or for Overture) that sets forth


                  Yahoo’s calculation of the
Yahoo Search Queries, Impressions


                  and “next” button Yahoo
Search Queries delivered hereunder in


                  the aggregate, as well as
the number and percentage of


                  Timeouts (as that term is
defined in the Service Level


                  Agreement attached hereto as
Exhibit A) and the number of


                  times that Yahoo displayed
an impression that was not in


                  compliance with the terms of
this Agreement. The Impression


                  information shall be reflected in the on-line
reporting


                  database within 48 hours. In
addition, with respect to the


                  Yahoo Results and Exclusive
Results, Yahoo will provide


                  Overture with a Yahoo Search
Query Report that sets forth in


                  reasonable detail monthly
Impressions for the Yahoo Results


                  and Exclusive Results in the
aggregate and the aggregate


                  information and data that
falls within the same categories as


                  those listed in Exhibit F
for which Overture must provide


                  information and data about
the Overture Results (e.g., total


                  clicks, average cost per
click and average click-through


                  rate). All reports provided hereunder will be
accompanied by a


                  certificate of accuracy,
signed by Yahoo’s Chief Technology


                  Officer or similar officer
with responsibility for the


                  reporting function.


 


            (d)   `Bot Traffic. Yahoo will implement a tracking solution that


                  tracks the number of
Impressions (i.e., a tracking solution


                  that determines which Yahoo
Search Queries were performed by


                  U.S. Users, thereby qualifying as Yahoo Search Queries,
and


                  which search queries were
performed by `bots, metaspiders,


                  macro programs, Internet
agents, any other automated means, or


                  by Yahoo as part of any
testing in accordance with the


                  subsection (e) below and the
Service Level Agreement).


 


            (e)   Mutual Exchange of Information. The parties hereby agree to


                  negotiate in good faith for
[*] days following the Effective


                  Date to provide an exchange
of information during the Term


                  that (i) enables either
Overture to develop its own reasonable


                  estimates of `bot traffic in
addition to the numbers reported


                  in the Yahoo Search Query
Reports or Yahoo to develop its own


                  marketplace for the Yahoo
Results and Exclusive Results, (ii)


                  does not violate any law or
regulation affecting user privacy,


                  (iii) provides contractual assurances to each party that such


                  information will not be used
for any purpose other than those


                  set forth in subsection (i)
above, and (iv) provides standards


                  for storing and destroying
such information. The parties


                  acknowledge and agree that
the goal of this Section 8.4(e) is


                  to exchange that information


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


24

















 


 


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                  reasonably necessary for
each party to administer this


                  Agreement on a timely basis
and to mutually determine relative


                  fault for adjustments to the
Estimated Yahoo Payment and the


                  Guaranteed Fixed Payments under
Section 8.7 below. Any failure


                  to complete such
negotiations will trigger an Escalation Event


                  pursuant to Section 16.5(a)
below.


 


            (f)   Testing. Yahoo agrees to (i) identify search queries submitted


                  by Yahoo in connection with any test conducted by
Yahoo in


                  accordance with the Service
Level Agreement as “test” queries


                  by marking them as such in a
data field at the time of


                  submission; and (ii) include
a total of these “test” queries


                  in the Yahoo Search Query
Reports.


 


      8.5  
Mutual Audit Rights. Each party (the “Auditing Party”), at its own


            expense, will be entitled to
retain a reputable, independent


           
certified public accounting firm reasonably acceptable to the other


            party (the “Audited Party”) solely
for the purpose of auditing, at a


            mutually agreed upon time during
normal business hours, those


            records of the Audited Party that
relate to the calculation of `bot


            traffic, Click-Through Rate, Price
Per Click, Impressions, Yahoo


            Results, U.S. Users, Gross Revenue
or the Revenue Share Payments.


            Prior to an audit, the Auditing
Party will require the certified


            public accounting firm (the
“Auditor”) to sign a confidentiality


            agreement reasonably acceptable to
the Audited Party, and the


            results of the audit will be
deemed “Confidential Information”. Such


            audit shall be conducted in
accordance with generally accepted


            auditing standards and the Auditor
will be entitled to disclose to


            the Auditing Party only whether or
not the Audited Party is in


            compliance and the amount of any
non-compliance, if any, and will be


            precluded from disclosing any
other Confidential Information to the


            Auditing Party without written
consent of the Audited Party. If an


            audit reveals an underpayment,
then the Audited Party will


            immediately make payment to the
Auditing Party in the amount of the


            underpayment [*]. If an audit
reveals an underpayment or


            miscalculation of more than 10%,
then the Audited Party will pay the


            reasonable cost of that audit.
Either party shall only be entitled


            to [*] during the Term, which will
apply to the prior [*] under the


            Agreement. Upon request by the
Auditor, Yahoo shall provide the


            Auditor access to its query logs to confirm compliance with the


            Guaranteed Impressions of this
Agreement.


 


      8.6  
Payment Mechanics. Overture will make payments to Yahoo in U.S.


            dollars via wire transfer into
Yahoo’s main account according to the


            instructions set forth below:


 


            [*]


 


      8.7  
Estimated Yahoo Payment and Guaranteed Fixed Payment Reductions.


 


            (a)   Principles. The principles below convey the shared


                  understanding of the parties
of how economic value is


                  generated and how actions by
the parties can change the rate


                  of economic value creation:


 


                  (1)   [*] is responsible for Impressions as
modeled in this


                        Agreement.


 


                  (2)   [*] is responsible for Coverage as modeled
in this


                        Agreement.


 


                  (3)   [*] is responsible for PPC as modeled in
this


                        Agreement.


 


                        [*] based its PPC model on [*]. [*] may impact PPC
in a


                        number of different
ways (but the parties recognize that


                        such ways may or may
not adversely affect PPC) which


                        will be considered by
the parties in


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


25

















 


 


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                        determining relative
fault in their discussions and in


                        third party
arbitration. These ways include (but are not


                        limited to) by [*].


 


                        The PPC on [*] is one
indicator of the degree to which


                        [*] is achieving the
PPC for which it is responsible.


                        [*].


 


                  (4)   [*] is responsible for CTR as modeled in
this Agreement.


                        [*] based its CTR
model on the [*]. [*] may impact CTR


                        in a number of
different ways (but the parties recognize


                        that such ways may or
may not adversely affect CTR)


                        which will be
considered by the parties in determining


                        relative fault in
their discussions and in third party


                        arbitration. These
ways include (but are not limited to)


                        [*] and [*] may impact
CTR through [*].


 


            (b)   Estimated Yahoo Payment. Once a Measurement Period is


                  triggered, the Estimated
Yahoo Payment and Guaranteed Fixed


                  Payment Adjustment Process
set forth in Exhibit K will be


                  followed. If an adjustment
in the Estimated Yahoo Payment is


                  required, then the following
formula will be used to determine


                  that adjustment:


 


                  [*]


 


            (c)   Credit for Guaranteed Fixed Payment. If the Revenue Share


                  Payment is less than the
Guaranteed Fixed Payment in Quarter


                  X, then Overture will be
credited toward the Guaranteed Fixed


                  Payment in Quarter Y an amount (the “Credit”) = [*]:


 


                  (1)   [*], or


 


                  (2)   [*].


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


 


26

















 


 


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                  If the above calculation
occurs during the final Quarter of


                  the Agreement (inclusive of
any Extension Terms), then the


                  Term of the Agreement will
be extended until the actual


                  Revenue Share Payment is
equal to the Credit. For clarity,


                  [*]. If the parties mutually agree not to extend the Term as


                  set forth herein, then Yahoo
will pay the amount of the Credit


                  to Overture within [*] days
after the expiration of the


                  Agreement.


 


            (d)   Measurement
Period. A Measurement Period is triggered when the


                  [*]. At the time a Measure
Period is triggered, the Parties


                  shall determine a fair
reserve from the Guaranteed Fixed


                  Payment as described in
Section 8.1 above.


                  By way of example, [*].


 


 


            (e)   Adjustment. If, in a Quarter subsequent to a Measurement


                  Period, the Yahoo Revenue
Share exceeds the Estimated Yahoo


                  payment for that Quarter (as
adjusted, if applicable), then


                  Overture will reset the
Estimated Yahoo Payment and the


                  Guaranteed Fixed Payment for
the subsequent Quarter to the


                  level calculated using the
formula in Section 8.7(b) above,


                  subject to the following
exceptions:


 


                  (1)   To the extent that the Guaranteed Fixed
Payment is


                        adjusted upwards [*].


 


                  (2)   The Guaranteed Fixed Payment will not be
adjusted


                        upwards unless the
actual revenue share to Yahoo is


                        greater than or equal
to [*]% of Estimated Yahoo Payment


                        for a given Quarter.


 


      8.8  
Late Payments. Any Guaranteed Fixed Payment or undisputed Revenue


            Share Payment that is paid more
than [*] days late will bear


            interest at the rate of [*]% per
month.


 


      8.9  
[*]


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


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9.    Impressions.


 


      9.1  
Deliveries. Yahoo will deliver the Guaranteed Impressions for each


            Quarter, except that Yahoo will be
deemed to have delivered the


            Guaranteed Impressions for any
Quarter in which [*] for that


            Quarter. Additionally, if [*],
then Yahoo will be deemed to have


            delivered the Guaranteed
Impressions for that Quarter, regardless of


            the number of Impressions actually
delivered. For clarity, Yahoo


            will continue to deliver
Impressions hereunder, by virtue of


            delivering each and every Yahoo
Search Query to Overture according


            to Section 3.2 above, even if
Yahoo has delivered the Guaranteed


            Impressions for a particular
Quarter. For additional clarity, the


            fact that the Guaranteed
Impressions are deemed delivered hereunder


            will not preclude the parties from
considering Impressions in


            connection with an adjustment
under Section 8.7 above.


 


      9.2  
Remedy, Make-Good. If Yahoo does not deliver the Guaranteed


            Impressions within the applicable
Quarter, then it will “make good”


            the shortfall by extending its
obligations hereunder at the end of


            the Initial Term or the end of the
applicable Extension Term, if


            any, until it delivers the
Guaranteed Impressions.


 


10.   Yahoo’s Option to Extend. Yahoo shall have
two options to extend the Term,


      each of which shall extend the Term by
an additional two or three years,


      as determined by Yahoo. The first option
to extend (“First Option”), if


      exercised by Yahoo, shall extend the
Term for a period commencing on May


      1, 2005 and continuing until either
April 30, 2007 or April 30, 2008 (an


      “Extension Term”), depending on whether
Yahoo chooses the two year option


      or three year option. In order for Yahoo
to exercise the First Option,


      Yahoo must notify Overture in writing
prior to [*] of its desire to


      exercise such option. The second option
to extend (“Second Option”), if


      exercised by Yahoo, shall extend the
Term for a period commencing on the


      date on which the first Extension Term
expires (i.e., either April 30,


      2007 or April 30, 2008) and continuing
for a period of either two or three


      years from


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


28

















 


 


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      the date on which the first Extension
Term expires, depending on whether


      Yahoo chooses the two year option or
three year option. In order for Yahoo


      to exercise the Second Option, Yahoo must have exercised the
First Option


      and Yahoo must notify Overture in
writing prior to the date that is [*]


      prior to the end of the First Option of
its desire to exercise the Second


      Option. All notices of exercise
hereunder must disclose whether Yahoo is


      extending the Term for two years or
three years.


 


11.   Representations and Warranties.


 


      11.1 
Overture Warranties. Overture represents and warrants that it has


            full power and authority to enter
into this Agreement. Overture


            further represents and warrants to
Yahoo that Overture’s total costs


            for credit card charges and bad
debt for the first 9 months of 2001


            was [*]% of amounts earned by Overture
for Bidded Clicks. Bad debt


            for the purpose of this Agreement
consists of matters which Overture


            categorizes in its normal course
of business as uncollectable


            revenues and invoiced revenues
that are not collected. Overture


            uncollectable revenues consists of
the following: credit card fraud;


            adjustments for system and other
errors in billing on a client


            account; adjustments made to
advertiser’s accounts for disputed


            billings; and adjustments [*]
after processing through our normal


            click-through protection filters.
Overture finally represents and


            warrants that, as of the Effective
Date and at all times throughout


            the Term, it has all consents,
approvals, licenses and permissions,


            necessary for Overture to perform
all of its obligations hereunder


            and for Yahoo to exercise all of
its rights hereunder.


 


      11.2 
Yahoo Warranties. Yahoo represents and warrants that it has full


            power and authority to enter into
this Agreement.


 


      11.3 
Disclaimer. EXCEPT AS SET FORTH IN SECTION 13, NEITHER PARTY WILL BE


            RESPONSIBLE FOR ANY CONTENT
PROVIDED BY THIRD PARTIES, INCLUDING BUT


            NOT LIMITED TO ADVERTISERS, OR FOR
ANY THIRD PARTY WEB SITES THAT


            CAN BE LINKED TO OR FROM THAT
PARTY’S WEB SITE. NEITHER PARTY


            NOR SUCH PARTY’S LICENSORS MAKE
ANY OTHER WARRANTY OF ANY KIND,


            WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING BUT NOT


            LIMITED TO WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR


            USE AND NONINFRINGEMENT.


 


12.   Confidentiality.


 


      12.1 
Definition. “Confidential Information” means any information


            disclosed by either party to the other party during the Term
(and


            any renewals terms), either
directly or indirectly, in writing,


            orally or by inspection of
tangible objects, which is designated as


            “Confidential,” “Proprietary” or
some similar designation. All of


            the terms of this Agreement,
including but not limited to all


            Overture Reports and all Yahoo
Search Query Reports, will be deemed


            “Confidential.” Information
communicated orally will be considered


            Confidential Information if such
information is designated as being


            Confidential Information at the
time of disclosure and confirmed in


            writing as being Confidential
Information within 20 days after the


            initial disclosure. Confidential
Information will not, however,


            include any information that (a)
was publicly known and made


            generally available in the public
domain prior to the time of


            disclosure by the disclosing
party; (b) becomes publicly known and


            made generally available after
disclosure by the disclosing party to


            the receiving party through no
action or inaction of the receiving


            party; (c) is already in the possession
of the receiving party at


            the time of disclosure by the
disclosing party; (d) is obtained by


            the receiving party from a third
party without a breach of such


            third party’s obligations of
confidentiality; or (e) is


            independently developed by the
receiving party without use of or


            reference to the disclosing
party’s Confidential Information.


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


29

















 


 


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      12.2 
Restrictions. Other than the rights expressly granted under Section


            2, the receiving party agrees (a)
not to disclose any Confidential


            Information to any third parties;
(b) not to use any Confidential


            Information for any purposes other
than to exercise its rights or


            perform its obligations under this
Agreement; and (c) to keep the


            Confidential Information
confidential using the same degree of care


            the receiving party uses to
protect its own confidential


            information, as long as it uses at least reasonable care. If
either


            party receives a subpoena or other
validly issued judicial process


            requesting, or is required by a
government agency (e.g., the


            Securities and Exchange
Commission) to disclose, Confidential


            Information of the other party,
then the receiving party will notify


            the disclosing party of such
request and will reasonably cooperate


            to seek confidential treatment or
to obtain an appropriate


            protective order to preserve the
confidentiality of the Confidential


            Information. Notwithstanding the
foregoing, either party may


            disclose following notice to the
other party, pursuant to a


            confidentiality agreement no less
restrictive than the


            confidentiality terms hereof, the
terms of this Agreement and


            performance hereunder to third
parties for the purpose of due


            diligence examinations in the
context of financings or a potential


            Change of Control (as defined in
Section 15.4). All obligations


            under this Section 12.2 will
survive for a period of [*] after


            termination or expiration of the
Agreement.


 


      12.3 
Press Release. Immediately upon execution of the Agreement, the


            parties will jointly issue the
press release attached hereto as


            Exhibit D, the content of which
has been mutually agreed upon by


            both parties. Further, the parties
agree that Overture and Yahoo or


            the applicable Yahoo Affiliate and
Overture Affiliate will jointly


            issue a press release, the timing
of which will be mutually agreed


            upon, relating to any amendment of
this Agreement to incorporate an


            International Opportunity in
accordance with Section 7.4 above.


            Neither party shall issue any
additional press releases in


            connection with this Agreement
without the other party’s prior


            written consent, which will not be
unreasonably withheld. Excluding


            disclosures that are required by
law, neither party will disclose


            any other terms of this Agreement
to any third party via any medium


            without the prior approval of the
other party. When determining


            whether a disclosure is “required
by law,” each party may rely on


            its legal counsels’ advice on such
matters. Notwithstanding the


            foregoing, (a) Overture shall have
the right to notify its


            advertisers and potential
advertisers of the general nature of this


            transaction (including Overture’s
estimate of the increase in


            traffic) pursuant to the general
provisions of Exhibit I in order to


            encourage Overture’s advertisers
to increase their spending with


            Overture and to encourage
potential advertisers to advertise with


            Overture; and (b) both parties
shall be entitled to (i) provide


            additional disclosures containing
any and all information contained


            in any previously agreed upon
press release; and (ii) list the other


            party’s name in advertising and
other materials (provided that such


            language shall not disparage the
other party) according to the other


            party’s then-current brand usage
guidelines, which the other party


            will make available upon request.


 


13.   Indemnification.


 


      13.1 
Overture Indemnification. Overture, at its own expense, will


            indemnify, defend and hold harmless Yahoo and Yahoo Affiliates,


            employees, representatives and
agents from and against any claim,


            demand, action, investigation or
other proceeding, including but not


            limited to all damages, losses,
liabilities, judgments, costs and


            expenses arising therefrom,
brought by any third party against Yahoo


            (collectively, a “Yahoo Claim”) to
the extent that the Yahoo Claim


            is based on, or arises out of an
allegation that Overture’s


            performance hereunder (including
but not limited to Overture’s


            practice of any method under the
Overture Licensed IP by which


            Overture assembles and orders
Overture Results for delivery to Yahoo


            hereunder) or the Licensed Materials violates any
applicable law,


            rule or regulation or infringe the
rights of any third party,


            including but not limited to
intellectual property rights, privacy


            and publicity rights, claims of
defamation, false or deceptive


            advertising claims and consumer
fraud.


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


30

















 


 


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      13.2 
Yahoo Indemnification. Yahoo, at its own expense, will indemnify,


            defend and hold harmless Overture
and Overture Affiliates,


            employees, representatives and
agents from and against any claim,


            demand, action, investigation or
other proceeding, including but not


            limited to all damages, losses, liabilities,
judgments, costs and


            expenses arising therefrom,
brought by any third party against


            Overture (collectively, an
“Overture Claim”) to the extent that the


            Overture Claim is based on, or
arises out of an allegation that


            Yahoo’s performance hereunder or
the Yahoo Marks violate any


            applicable law, rule or regulation
or infringe the rights of any


            third party, including but not
limited to intellectual property


            rights, privacy and publicity
rights, claims of defamation, false or


            deceptive advertising claims and
consumer fraud.


 


      13.3 
Indemnification Procedure. All indemnity obligations arising under


            this Section 13 will be subject to
the following requirements: (a)


            the indemnified party will provide
the indemnifying party with


            prompt written notice of any Yahoo
Claim, in the case that Yahoo is


            the indemnified party, or any
Overture Claim, in the case that


            Overture is the indemnified party, (as applicable, a
“Claim”),


            except that failure to give prompt
notice will not waive any rights


            of the indemnified party to the
extent that the rights of


            indemnifying party are not
materially prejudiced thereby; (b) the


            indemnified party will permit the
indemnifying party to assume and


            control the defense of the Claim
upon the indemnifying party’s


            written acknowledgment of its
obligation to indemnify; (c) upon the


            indemnifying party’s written
request, and at no expense to the


            indemnified party, the indemnified
party will provide the


            indemnifying party with all
available information and assistance


            reasonably necessary for the indemnifying party to defend the
Claim.


            The indemnifying party will not
enter into any settlement or


            compromise of the Claim (except a
settlement or compromise that (i)


            is full and final with respect to
the Claim; (ii) does not obligate


            the indemnified party to act or to
refrain from acting in any way;


            (iii) does not contain an
admission of liability on the part of the


            indemnified party; (iv) dismisses
the Claim with prejudice; and (v)


            is subject to confidentiality,
such that no party may disclose the


            terms of the settlement or
compromise without the indemnified


            party’s prior written consent)
without the indemnified party’s prior


            written approval, which shall not
be unreasonably withheld.


 


14.   Limitation of Liability. EXCEPT FOR
INDEMNITY OBLIGATIONS ARISING UNDER


      SECTION 13 ABOVE, ANY BREACH OF SECTION
12.2 (CONFIDENTIALITY —


      RESTRICTIONS) OR ANY WILLFUL, UNCURED
AND MATERIAL BREACH OF THIS


      AGREEMENT, UNDER NO CIRCUMSTANCES WILL
EITHER PARTY OR ITS AFFILIATES BE


      LIABLE TO THE OTHER PARTY OR ITS
AFFILIATES FOR ANY INDIRECT, INCIDENTAL,


      CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES ARISING FROM THE SUBJECT


      MATTER OF THIS AGREEMENT, INCLUDING BUT
NOT LIMITED TO LOSS OF DATA,


      BUSINESS, PROFITS OR GOODWILL AND COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS


      OR SERVICES, REGARDLESS OF THE LEGAL
THEORIES AND EVEN IF THAT PARTY HAS


      BEEN AWARE OR ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT WILL


      YAHOO’S AGGREGATE, CUMMULATIVE LIABILITY
TO OVERTURE UNDER THIS AGREEMENT


      EXCEED THE SUM OF $[*] AND ANY AMOUNTS
CREDITABLE OR REFUNDABLE TO


      OVERTURE UNDER THIS AGREEMENT PURSUANT
TO SECTION 8, EXCEPT THAT YAHOO’S


      AGGREGATE, CUMMULATIVE LIABILITY TO
OVERTURE UNDER THIS AGREEMENT WILL NOT


      EXCEED THE SUM OF $[*] AND ANY AMOUNTS
CREDITABLE OR REFUNDABLE TO


      OVERTURE UNDER THIS AGREEMENT PURSUANT
TO SECTION 8 IN THE EVENT OF


      YAHOO’S WILLFUL, EFFICIENT BREACH OF
THIS AGREEMENT. IN NO EVENT WILL


      OVERTURE’S AGGREGATE, CUMMULATIVE
LIABILITY TO YAHOO UNDER THIS AGREEMENT


      EXCEED THE SUM OF $[*] AND ANY AMOUNTS
PAST DUE UNDER THIS AGREEMENT


      PURSUANT TO SECTION 8, EXCEPT THAT
OVERTURE’S AGGREGATE, CUMMULATIVE


      LIABILITY TO YAHOO UNDER THIS AGREEMENT
WILL NOT EXCEED THE SUM OF $[*]


      AND ANY AMOUNTS PAST DUE UNDER THIS
AGREEMENT PURSUANT TO SECTION 8 IN THE


      EVENT OF OVERTURE’S WILLFUL, EFFICIENT
BREACH OF THIS AGREEMENT.


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


 


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15.   Term.


 


      15.1 
Term. This Agreement will become effective as of the Effective Date


            and, unless terminated or renewed as
set forth herein, will remain


            effective for the Term.


 


      15.2 
Termination. If either party breaches this Agreement in any material


            respect, and that party does not
cure its breach within 30 days


            after written notice by the
non-breaching party of its breach, then


            the non-breaching party will be
entitled to terminate this Agreement


            immediately upon written notice to
the breaching party after failure


            to cure within those 30 days.


 


      15.3 
Termination for Cause. Following the first year of this Agreement,


            Yahoo will be entitled to
terminate this Agreement upon [*] prior


            written notice (the “Termination
Notice”) to Overture if the [*] is


            less than [*] for [*] consecutive
Quarters; provided that the reason


            the [*] is less than [*] must be
determined to be Overture’s


            responsibility by applying the
principles and provisions described


            in Section 8.7 above. Upon receipt
of the Termination Notice,


            Overture shall have the right to
increase the Guaranteed Fixed


            Payment from its current level of
approximately [*] to [*] in which


            case the Agreement shall continue
as if no Termination Notice had


            been delivered.


 


      15.4 
Termination for Change of Control. For purposes of this provision,


            “Change of Control” means (a) the
direct or indirect acquisition


            (except for transactions described
in clause (b) of this paragraph


            below), whether in one or a series
of transactions by any person (as


            such term is used in Section 13(d)
and Section 14(d)(2) of the


            Securities Exchange Act of 1934,
as amended (the “Exchange Act”)),


            or related persons (such person or persons, an “Acquirer”)


            constituting a group (as such term
is used in Rule 13d-5 under the


            Exchange Act), other than in all
cases Yahoo and/or controlled


            affiliates of, or an entity that
controls 50% or more of, Yahoo, of


            (i) beneficial ownership (as
defined in the Exchange Act) of issued


            and outstanding shares of stock of
Overture, the result of which


            acquisition is that such person or
such group possesses in excess of


            50% of the combined voting power
of all then-issued and outstanding


            stock of Overture, or (ii) the
power to elect, appoint, or cause the


            election or appointment of at
least a majority of the members of the


            board of directors of Overture (or
such other governing body in the


            event Overture or any successor
entity is not a corporation); (b) a


            merger or consolidation of
Overture with a person or a direct or


            indirect subsidiary of such person, other than in all cases
Yahoo


            and/or controlled affiliates of,
or an entity that controls 50% or


            more of, Yahoo, provided that the
result of such merger or


            consolidation, whether in one or a
series of related transactions,


            is that the holders of the
outstanding voting stock of Overture


            immediately prior to such
consummation do not possess, whether


            directly or indirectly,
immediately after the consummation of such


            merger or consolidation, in excess
of 50% of the combined voting


            power of all then-issued and
outstanding stock of the merged or


            consolidated person, its direct or
indirect parent, or the surviving


            person of such merger or consolidation; (c) the
stockholders of


            Overture approve a plan of
complete liquidation of Overture; or (d)


            a sale or disposition, whether in
one or a series of transactions,


            of all or substantially all of
Overture’s assets. Overture will


            provide Yahoo with prompt written
notice following (or at Overture’s


            election, up to [*] days prior to)
(i) the approval by the


            Overture board of directors of a
transaction that is or is intended


            to be a Change in Control or (ii)
the public announcement (including


            without limitation by means of a
filing pursuant to Section 13D of


            the Exchange Act) by any third
party of its intention to effect a


            Change in Control of Overture,
including without limitation the


            initiation of a tender offer,
proxy fight, consent solicitation or


            other means designed or intended
to effect a Change in Control of


            Overture. Upon receipt of such
notice from Overture, Yahoo will be


            entitled to the right (the “Change
of Control Right”) to elect in


            writing (the “Change of Control
Election”) to Overture, within [*]


            days of receipt of such notice,
either the “Continue on Revised


            Financial Terms” option set forth
in subpart (a) immediately below


            or the “Termination; Termination
Fee” option set forth in subpart


            (b)


 


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  omitted portions.


 


 


 


32

















 


 


EXECUTION                                                  
        CONFIDENTIAL


 


            immediately below. Notwithstanding
anything to the contrary herein,


            once a Change of Control has been
consummated, Yahoo shall have no


            further rights under this Section
15.4 in respect of a subsequent


            Change of Control , if any, that
may be consummated. The following


            subparts (a) and (b) are the two
choices, one of which Yahoo may


            elect pursuant to a Change of
Control Election (it being understood


            that if Yahoo does not make an
election prior to the end of such


            [*] day period, then it shall be
deemed to have elected the option


            set forth in subpart (a) below):


 


            (a)   Continue on Revised Financial Terms. Yahoo elects to maintain


                  the Agreement under its
terms and conditions, subject to the


                  following adjustment, to
become effective immediately prior to


                  the consummation of the
Change of Control: Overture will


                  increase the percentage at which it makes Revenue Share


                  Payments hereunder by (1)
[*]% (e.g., in year 3 of the Initial


                  Term, the revenue share
percentage would increase from [*]% to


                  [*]%) to the extent that the
Acquirer is [*] or controlled by


                  one of such entities or any
successor to substantially all of


                  the current business of any
of such entities (each, a


                  “Designated Company”); or
(2) [*]% to the extent that the


                  Acquirer is any entity other
than a Designated Company. The


                  term of the increased
Revenue Share Payment percentages


                  pursuant to this subpart (a)
shall continue from immediately


                  prior to the consummation of the Change of Control
until the


                  later of (x) one year
following consummation of the Change of


                  Control, and (y) the
expiration of the Initial Term (if the


                  Change of Control is
consummated during the Initial Term) or


                  the applicable Extension
Term (if the Change of Control is


                  consummated during an
Extension Term). Notwithstanding the


                  foregoing sentence, to the
extent that either (i) the Change


                  of Control occurs after
January 1, 2005 and Yahoo has not


                  provided Overture with
written notice of Yahoo’s intent to


                  exercise the First Option
according to Section 10 above; or


                  (ii) the Change of Control
occurs after the date that is six


                  months prior to the end of
the First Option and Yahoo has not


                  provided Overture with
written notice of Yahoo’s intent to


                  exercise the Second Option according to Section 10 above, the


                  term of the increased
Revenue Share Payment percentages


                  pursuant to this subpart (a)
shall continue from immediately


                  prior to the consummation of
the Change of Control until the


                  expiration of the
then-current Term (i.e., the Initial Term in


                  the case of clause (i) above
and the first Extension Term in


                  the case of clause (ii)
above).


 


            (b)   Termination;
Termination Fee. Yahoo elects to terminate the


                  Agreement, in which case the
following will become effective


                  immediately prior to the
consummation of the Change of


                  Control: the Agreement will
terminate and Overture will pay to


                  Yahoo a termination fee of
(i) if Acquirer is a Designated


                  Company, then (A)
$10,000,000 in cash, payable promptly upon


                  consummation of a Change of
Control; and (B) 3% of the


                  outstanding shares of
Overture Common Stock, on a fully


                  diluted basis immediately
prior to consummation of the Change


                  of Control (calculated on
the treasury stock method (utilizing


                  the average closing trading
price of shares of Overture for


                  the 10 trading days ending
on the day that is two trading days


                  prior to but not including
the date of consummation of the


                  Change of Control (the “Ten-Day Average Price”))) which,


                  subject to applicable
governmental regulatory approvals and


                  the expiration of applicable
waiting periods, shall be issued


                  immediately prior to
consummation of a Change of Control; or


                  (ii) if Acquirer is not a
Designated Company, then (A)


                  $5,000,000 in cash, payable
promptly upon consummation of a


                  Change of Control; and (B)
2% of the outstanding shares of


                  Overture Common Stock, on a
fully diluted basis, immediately


                  prior to consummation of the
Change of Control (calculated on


                  the treasury stock method as
aforesaid) which, subject to


                  applicable governmental regulatory approvals and the


                  expiration of applicable
waiting periods, shall be issued


                  immediately prior to
consummation of a Change of Control (the


                  shares referred to in
clauses (i)(B) and (ii)(B), the


                  “Overture Shares”).
Notwithstanding the foregoing, if the


                  Change of Control is the
type described in clause (a) of the


                  first paragraph of this
Section 15.4, then the obligation of


                  Overture to issue Overture
Shares and make payments to Yahoo


                  pursuant to this paragraph
shall take effect as promptly as


                  practicable following the
Change of Control, rather than


                  immediately prior to or upon the Change of Control. In


                  connection with the issuance
of the Overture Shares, the


                  parties will cooperate in
the filing of any


 


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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


 


33

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


                  applicable regulatory filing
pursuant to the Hart-Scott-Rodino


                  Antitrust Improvements Act
of 1976, as amended (the “HSR


                  Act”). Overture and Yahoo
will share equally any applicable


                  filing fee required in connection with any such HSR Filing.


                  The parties will retain and
pay their own legal counsel and


                  other expenses, if any, in
connection with such filing. The


                  parties also will use all
reasonable efforts to file any


                  applicable regulatory filing
promptly, so as to permit the


                  timely issuance of the
Overture Shares. In addition, if the


                  Change of Control is the
type described in clause (a), (c) or


                  (d) of the first paragraph
of this Section 15.4 (a “Non-Merger


                  Change of Control”), unless
Yahoo can trade the Overture


                  Shares in the public market
without an effective registration


                  statement, Overture will use all reasonable efforts to
file


                  and have the SEC promptly
declare effective a registration


                  statement pursuant to which
the Overture Shares will be fully


                  registered for resale by
Yahoo under the Securities Act of


                  1933, as amended, and any
applicable state securities law;


                  following effectiveness of
the registration statement, subject


                  to applicable law. Overture
will take all reasonable actions


                  to ensure Yahoo’s ability to
dispose of the Overture Shares as


                  promptly as desired by
Yahoo. If the terms of the issuance of


                  Overture Shares are publicly
disclosed by Overture, upon


                  Yahoo’s request, Overture
shall take reasonable steps to apply


                  for and obtain a permit for
the issuance of the Overture


                  Shares to Yahoo from the
California Department of Corporations


                  in the event of a Non-Merger Change of Control.


                  Notwithstanding anything to
the contrary herein, in lieu of


                  issuing Overture Shares to
Yahoo pursuant to this subpart (b),


                  Overture may elect, in its
sole discretion, instead to pay


                  Yahoo cash equal to the
market value of such Overture Shares


                  based on the Ten-Day Average
Price.


 


      15.5 
Effect of Termination or Expiration. Upon termination or expiration


            of this Agreement for any reason, (a) except as set forth
in Section


            2.5 above, all licensed rights
granted herein will terminate


            immediately; (b) Yahoo will
immediately cease use of the Licensed


            Materials; (c) Overture will
immediately cease use of the Yahoo


            Search Query Reports other than as
contemplated herein; (d) Yahoo


            will cease all use of all Overture
Reports other than as


            contemplated herein; and (e)
Sections 1, 2.2 (with respect to the


            covenants to destroy/certify
destruction of information only), 2.3


            2.5, 8.1 and 8.2 (with respect to
payments accrued during the Term),


            8.3, 8.7 (with respect to credits
accrued during the Term), 8.8,


           
9.2, 12-14, 15.5 and 16 of this Agreement will survive. The parties


            further agree that, in the event
of an early termination under this


            Agreement, each party will be
entitled to any fees due or owed to it


            by the other party (e.g., Overture
will be entitled to a pro rata


            refund of the applicable
Guaranteed Fixed Payment in the event of a


            proper termination of the
Agreement by Overture). The remedies


            stated herein are cumulative and
in addition to any remedies


            available at law or equity, and
nothing contained herein shall be


            deemed to limit either party’s
right to pursue any and all such


            remedies.


 


16.   Miscellaneous.


 


      16.1 
Notice. Any notice required for or permitted by this Agreement must


            be in writing and delivered by (a)
personal delivery; (b)


            nationally-recognized overnight
courier; (c) certified or registered


            mail, return receipt requested; or
(d) email, telecopy or facsimile


            transmission, confirmed by
concurrent notice delivered by one of the


            means set forth in subsections (a)
— (c) above. All notices will be


            deemed delivered upon receipt by
the receiving party. All notices


            must be sent (1) to Yahoo at 701
First Avenue, Sunnyvale, California


            94089, Attn: Vice President, North
American Operations, with a copy


            to its General Counsel; or (2) to
Overture at 74 North Pasadena


            Avenue, third floor, Pasadena, California 91103, Attn: Vice


            President Business Affairs. Each
party will be entitled to change


            its address for purposes of this
Section 16.1 by providing written


            notice to the other party in
accordance herewith.


 


      16.2 
Assignment; Binding Effect. This Agreement will be binding upon and


            inure to the benefit of the
parties hereto and their permitted


            successors and assigns, as set
forth herein and Section 15.4


 


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been requested with respect to the


  omitted portions.


 


 


34

















 


 


EXECUTION                                                           CONFIDENTIAL


 


            above. Neither Overture nor Yahoo
may assign this Agreement, or any


            of its rights hereunder, or
delegate any of its duties hereunder


            without the prior written consent
of the other party.


            Notwithstanding the foregoing,
either party may, without the prior


            written consent of the other
party, assign this Agreement to any


            entity that succeeds to all or
substantially all of the assets and


            liabilities of that assigning
party. If an assignment or delegation


            is made by Overture according to
Section 15.4 above, then the terms


            and conditions set forth in that
Section 15.4, including but not


            limited to all applicable notice periods and remedies, will
apply to


            that assignment or delegation. If
an assignment or delegation is


            made by Yahoo in connection with
the sale of all or substantially


            all of its assets and liabilities,
and either (a) the assignee is an


            Overture Restricted Company; or
(b) Overture reasonably determines


            that the assignee does not have
sufficient capital or assets to


            perform its obligations under this
Agreement, then Overture will be


            entitled to approve the assignment
or to terminate this Agreement


            within 30 days after the date on
which the assignee succeeds to all


            or substantially all of Yahoo’s
assets and liabilities. If Overture


            approves the assignment, then this
Agreement will be binding upon


            and inure to the benefit of
Yahoo’s successor or assign.


 


      16.3 
No Third Party Beneficiaries. All rights and obligations of each


            party hereunder are personal to
that party. This Agreement is not


            intended to benefit, nor shall it
be deemed to give rise to, any


            rights in any third party.


 


      16.4 
Governing Law; Attorneys’ Fees. This Agreement will be governed and


            construed, to the extent
applicable, in accordance with United


            States law, and otherwise, in
accordance with California law,


            without regard to conflict of law
principles. In the event of any


            material breach by either party of
any provision of this Agreement,


            the non-breaching party will be
entitled to suspend its performance


            hereunder until the breach is
cured. The prevailing party in any


            action arising hereunder will be entitled
to recover reasonable


            expenses, including but not
limited to attorneys’ fees.


 


      16.5 
Dispute Resolution.


 


            (a)   Escalation Events. If the parties cannot agree on disputes


                  arising from the
determination of a reasonable royalty, the


                  calculation of Impressions,
revisions to the Service Level


                  Agreement according to
Section 4.3(b), or any other subsequent


                  dialogue provided for under
this Agreement, then the dispute


                  will be subject to
escalation (an “Escalation Event”). An


                  Escalation Event first will
be discussed in good faith by the


                  parties at a mutually
convenient location in an attempt to


                  resolve the Escalation Event amicably, in whole or in part.
A


                  senior director or vice
president of business development with


                  decision-making authority
(“Senior Business People”) will


                  participate in these
discussions. If the Senior Business


                  People cannot resolve the
Escalation Event within [*] days,


                  then each party will
designate a senior executive with


                  decision-making authority
(“Senior Executive”) to meet and


                  confer in an effort to
resolve the Escalation Event. If the


                  Senior Executives cannot
resolve the Escalation Event within


                  [*] days, then the chief
executive officers of the respective


                  parties (“CEO”) will meet and confer in an effort
to resolve


                  the Escalation Event. Any
decisions and resolutions of the


                  Senior Business People,
Senior Executives or CEOs will be


                  final and binding on the
parties once reduced to writing and


                  signed by the parties. If
the procedures outlined under this


                  Section 16.5(a) fail to
resolve an Escalation Event, then the


                  parties hereby agree to submit
the issue to binding


                  arbitration pursuant to
Section 16.5(b), except as set forth


                  in Section 2.5(g) [?].


 


            (b)   Arbitration, Equitable Relief. All controversies, disputes,


                  differences or claims
between the parties arising out of or


                  relating to this Agreement
(each, a “Dispute”), including but


                  not limited to any
unresolved Escalation Events and any


                  question concerning the
existence, validity, termination,


                  interpretation, performance
or enforcement of this Agreement,


                  will be finally and
exclusively settled by binding arbitration


                  in accordance with the
following:


 


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  omitted portions.


 


 


35

















 


 


EXECUTION                                                           CONFIDENTIAL


 


                  (1)   Submission; Rules. Either party will be
entitled to


                        submit a Dispute to
JAMS for binding arbitration in San


                        Francisco, California
or Los Angeles, California by


                        providing written
notice to the other party and to JAMS.


                        Discovery will be
conducted in accordance with Rules 26


                        through 36 and Rule 45
of the Federal Rules of Civil


                        Procedure.


 


                  (2)   Appointment of Panel. The parties will
assemble a panel


                        of 3 arbitrators (the
“Panel”) as follows: Each party


                        will nominate one
arbitrator, and those 2 arbitrators


                        will select a
chairperson of the Panel. Each arbitrator


                        on the Panel must have
at least 5 years senior


                        management or
consulting experience in the on-line


                        services industry and must not have been employed by or


                        a supplier to either
party during the preceding 2 years.


 


                  (3)   Timing. The parties will undertake
commercially


                        reasonable efforts to
conclude any arbitral proceedings


                        within 180 calendar
days from the date on which the last


                        arbitrator accepts his
or her appointment; provided,


                        however, that if the
arbitral award is not issued within


                        such 180 calendar
days, then the arbitration proceedings


                        will continue until an
award is made.


 


                  (4)   Legal and Equitable Remedies. Neither party
will be


                        entitled to file a legal action against the other party


                        until the arbitration
is concluded, but nothing herein


                        prohibits a party from
requesting temporary injunctive


                        relief from any court
of competent jurisdiction. Either


                        party may at any time
apply to a court of competent


                        jurisdiction for
equitable relief.


 


                  (5)   Decision. Any decision or award of the
Panel will be


                        based solely on the
terms of this Agreement and the


                        facts and legal
arguments presented at the hearing and


                        any documents
presented in accordance with the discovery


                        rules. The Panel will issue a written decision that sets


                        forth its rationale in
reasonable detail. Any award


                        rendered by the Panel
may be enforced by any court of


                        competent jurisdiction.
The Panel will have the


                        authority to award
specific performance or an injunction


                        to the prevailing
party, or to make an award of direct


                        damages, but will have
no right to grant special,


                        punitive or exemplary
damages, or indirect or


                        consequential damages
unless such amounts are allowed


                        under this Agreement.


 


      16.6 
Independent Contractors. The parties are independent contractors


            with respect to the subject matter
of this Agreement. This Agreement


            will not be construed to create a
joint venture or partnership


            between the parties. Neither party
will be deemed to be an employee,


            agent, partner or legal
representative of the other party for any


            purpose, and neither party will
have any right, power or authority


            to create any obligation or
responsibility on behalf of the other


            party.


 


      16.7 
Force Majeure. Neither party will be liable hereunder (and their


            performance shall be excused under
this Agreement) by reason of any


            failure or delay in the
performance of its obligations (except for


            the payment of money) on account of strikes, shortages, riots,


            insurrection, terrorism, fires,
flood, storm, explosions,


            earthquakes, Internet outages
beyond the reasonable control of such


            party, acts of God, war, governmental
action, or any other cause


            that is beyond the reasonable
control of such party.


 


      16.8 
Compliance with Law. Each party will be responsible for compliance


            with all applicable laws, rules
and regulations, if any, related to


            the performance of its obligations
under this Agreement.


 


      16.9 
Entire Agreement. This Agreement, including all exhibits attached


            hereto, constitutes the entire
agreement between the parties with


            respect to the subject matter
hereof and supersedes any prior or


            contemporaneous proposals, whether
written or oral, with respect to


            the subject matter hereof. Any
amendments to this Agreement must be


            in writing and executed by an officer
of each party.


 


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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


36

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


      16.10 Counterparts. This Agreement may
be entered into by each party in


            separate counterparts, which will
constitute one fully executed


            Agreement upon execution by both
Yahoo and Overture.


 


      16.11 Severability. If any provision of
this Agreement is held or made


            invalid or unenforceable for any
reason, this Agreement will be


            construed as if that provision had
never been contained herein, but


            considering the original
intentions of the parties.


 


      16.12 Waiver. The terms or covenants of
this Agreement may be waived only


            by a written instrument executed
by a duly authorized representative


            of the party waiving compliance. The failure of either party
at any


            time or times to require
performance of any provision hereof will in


            no manner affect the right at a
later time to enforce the same. No


            waiver by either party of the
breach of any term or covenant


            contained in this Agreement,
whether by conduct or otherwise, in any


            one or more instances, will be
deemed to be, or construed as, a


            further or continuing waiver of
any such breach or a waiver of the


            breach of any other term or
covenant contained in this Agreement.


 


      16.13 Section Headings. The section
headings contained herein are for


            reference purposes only and do not
in any way affect the meaning or


            interpretation of this Agreement.


 


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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


                  [REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]


 


 


37

















 


 


EXECUTION                                                          
CONFIDENTIAL


 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.


 


	
  “Yahoo”

  	
  “OVERTURE”

  
	
  YAHOO!
  INC., A DELAWARE CORPORATION

  	
  OVERTURE
  SERVICES, INC., A

  
	
   

  	
   

  	
   

  	
  DELAWARE
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Greg Coleman

  	
   

  	
  By:

  	
  /s/
  Todd Tappin

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
  Todd
  Tappin

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
  CFO

  



 


 


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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


38























 


EXECUTION


 


EXHIBIT A


 


SERVICE LEVEL AGREEMENT


 


        The purpose of this Service Level
Agreement (the “SLA”) is to describe the service level commitments that the
parties are obligated to deliver under this Agreement. The sections are as
follows:


 


        I.      Definitions


 


        II.     Contacts


 


        III.    Support Procedures


 


        IV.     Operational Metrics


 


                I.      DEFINITIONS


 


A.      Definitions.


 


        (i)     Aggregate Response Time. This value is the sum of the Internal


                Overture Response Time and the
Network Response Time.


        (ii)    Availability. The percentage of the total properly formatted


                Yahoo Search Queries (as
defined in the Agreement) for which


                Overture responds (either with
a “no results delivered” response


                or a response in the form of
properly formatted Overture


                Results, regardless of whether
delivered within the Critical


                Threshold or not (i.e.,
Timeouts are irrelevant to the


                calculation of Availability to
the extent that a response in the


                form set forth herein is
ultimately delivered by Overture)).


                Load balancing must be in
effect for the Availability terms to


                be applicable. Catastrophic
Problem. A Problem that persists for


                a period of [*] or more during
Peak Hours and [*] or more during


                Non-Peak Hours.


 


        (iii)   Implementation Change. A request by Yahoo to incorporate a new


                feature or enhance an existing
feature of the Overture Services


                provided to Yahoo under the
Agreement to which this SLA is


                attached as an Exhibit.


 


        (iv)    ICMP. An Internet Control Message Protocol used for, among
other


                things, determining whether a
particular computer is attached to


                the Internet and working
properly.


 


        (v)     Internal Overture Response Time. The period of time beginning
at


                the time of Overture’s receipt of a Yahoo Search Query
from


                Yahoo to completion of send by
Overture, as measured by


                Overture’s NOC.


 


        (vi)    Minor Problem. A cosmetic display issue which allows the major


                elements of Overture results
to display, but causes textual


                irregularities (e.g., an
umlaut not displaying properly). For


                clarity, [*].


 


*
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been requested with respect to the


  omitted portions.


 


 


                                                                                                           
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        (vii)   Network Response Time. The period of time required for an ICMP


                ping packet to complete a
round trip cycle between Yahoo and


                Overture. Network Response
Time will be measured from each


                party’s data center to the
other party’s data center.


 


        (viii)  NOC. Network Operations Center.


 


        (ix)    Non-Peak Hours. Non-Peak Hours shall mean all hours outside of


                Peak Hours.


 


        (x)     Normal Maintenance. Ongoing scheduled maintenance.


 


        (xi)    Peak Hours. Peak Hours shall mean [*].


 


        (xii)   Problem. An error, bug, incompatibility or malfunction, which


                renders the Overture Results
unavailable to or unuseable by


                Yahoo for [*] consecutive [*]
or more. A “Problem” can include,


                but is not limited to,
instances of [*], but does not include


                circumstances where Yahoo or
Overture is not available to the


                Internet at large due to a force majeure event (as described in


                Section 16.7 of the Agreement
to which this document is


                attached).


 


        (xiii)  Problem Resolution. A correction, patch, fix, alteration or


                Temporary Workaround that minimizes the effect of a Problem,


                Severe Problem, or
Catastrophic Problem restoring the system to


                the levels set forth in this
SLA within the response times set


                forth in this SLA.


 


        (xiv)   Results Set. A Results Set will consist of the number of


                Overture Results required to
be displayed pursuant to the


                Agreement, or a “No Results
Delivered” notification, if


                applicable, which Results Set
is properly formatted in a


                mutually agreed XML format.


 


        (xv)    Severe Problem. A Problem that persists for a period of [*] or


                more during Peak Hours and [*]
or more during Non-Peak Hours.


 


        (xvi) 
 Temporary Workaround. A
temporary technical solution that


                restores the system to the
levels set forth in this SLA,


                although there may be ongoing
or additional measures until a


                permanent solution can be
implemented.


 


        (xvii)  Timeouts. A timeout refers to an action taken by Yahoo


                production servers when
Overture Results are not received within


                the maximum Aggregate Response
Time referred to as the “Critical


                Threshold” in Article IV, Section E below. This action will


                result in Overture Results not
being displayed, but may or may


                not constitute an “Impression”
under the Agreement.


 


        (xviii) TTL. Time-to-live settings that
determine the time that the


                Overture entries remain in the
Yahoo DNS cache.


 


        (xix)   Unresolved Catastrophic Problem. A Catastrophic Problem that


                does not have a Problem
Resolution within a total period of [*]


                or more during Peak Hours ([*]) and [*] or more during
Non-Peak


                Hours.


 


        (xx)    Yahoo Technical Lapse. A Yahoo Technical Lapse means a set of


                technical circumstances within
Yahoo’s reasonable control


                whereby (i) a properly formatted set of Overture
Results are


                delivered to Yahoo in response
to a properly formatted Yahoo


                Search Query within the
Critical Threshold established in


                Article IV, Section E below,
but are not displayed as a Yahoo


                Search Results Page or (ii)
Yahoo is unable to receive a


                properly formatted set of
Overture Results and does not transmit


                properly formatted Yahoo
Search Queries to Overture.


 


*
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been requested with respect to the


  omitted portions.


 


                                                                                                            Confidential


 


 


Page 2

















 


        II.     CONTACT INFORMATION


 


A.      Contact Information.


 


        (i)     Overture Support Personnel.


 


        [*]


 


        (ii) 
  Yahoo Support Personnel.


 


        [*]


 


        B. Updates. Either party may change
its designated support personnel at its discretion with reasonable written
notice to the other party. Each party’s preliminary contact personnel are as
shown in Article II, Section A.


 


        III.    SUPPORT PROCEDURES


 


A.      Support Procedures.


 


        (i)     All Problems, Severe Problems, and Catastrophic Problems


                reported by either party must
be submitted to the other party,


                as appropriate, via the
technical support telephone number, via


                email or pager to the contact
information set forth in the


                Support Table, and each such
Problem, Severe Problem, and


                Catastrophic Problem will be
given a unique reference number by


                the receiving party.


 


        (ii)    The responsible party shall inform the other party’s technical


                support personnel of ongoing
efforts to provide a Problem


                Resolution concerning
Problems, Severe Problems, and


                Catastrophic Problems at least
once per day, or more frequently


                if such is provided for in the
Support Table until such Problem


                Resolution is complete.


 


*  Certain information on this page has been
omitted and filed separately with


   the Commission. Confidential treatment has
been requested with respect


   to the omitted portions.


 


 


                                                                                               
   Confidential


 


Page 3

















 


        (iii)   In the event that there is a Minor Problem, Problem, Severe


                Problem or Catastrophic
Problem during Non-Peak Hours, the


                reporting party shall contact
the other party’s NOC via customer


                support pager at the email
pager address provided herein for


                such purpose.


 


B.      Overture Response. Upon receiving
notification from Yahoo, Overture


        shall promptly determine whether the
request is a Minor Problem, a


        Problem, a Severe Problem, or a
Catastrophic Problem or none of the


        above according to the definitions set
forth above. If it is determined


        by the parties that the issue is
Overture’s responsibility, then


        Overture will respond to the request
within the response times set forth


        in this SLA and shall use all
commercially reasonable efforts to resolve


        the Minor Problem, Problem, Severe
Problem or Catastrophic Problem in


        accordance with this SLA. If the
parties agree that a Minor Problem,


        Problem, Severe Problem, or
Catastrophic Problem is not Overture’s


        responsibility, then Overture shall
reasonably cooperate with Yahoo to


        provide a Problem Resolution.


 


C.      Yahoo Response. Upon receiving
notification from Overture, Yahoo shall


        promptly determine whether the request
is a Minor Problem, Problem, a


        Severe Problem, or a Catastrophic
Problem or none of the above,


        according to the definitions set forth above. If it is
determined by the


        parties that the issue is Yahoo’s
responsibility, then Yahoo will


        respond to the request within the
response times set forth in this SLA


        and shall use all commercially
reasonable efforts to resolve the Minor


        Problem, Problem, Severe Problem, or
Catastrophic Problem in accordance


        with this SLA. If the parties agree
that a Minor Problem, Problem,


        Severe Problem, or a Catastrophic
Problem is not Yahoo’s responsibility,


        then Yahoo shall reasonably cooperate
with Overture to provide a Problem


        Resolution.


 


D.      Indeterminate Responsibility. If the
parties disagree which party bears


        responsibility for a Problem, Severe
Problem, or Catastrophic Problem


        then both parties will form a
resolution team comprised of at least a


        technical contact representing each
party. Any continuing disagreement


        regarding responsibility, or any
failure by either party to effect a


        Problem Resolution within the times
indicated will result in escalation


        to the Primary business contact as
identified in Article II above and as


        set forth in Section E below.


 


                SUPPORT TABLE


 


 


	
  RECEIPT OF NOTICE

  	
   

  	
  TYPE OF PROBLEM REPORTED

  	
   

  	
  RESPONSE TIME

  	
   

  	
  TIME FOR IMPLEMENTATION CHANGE AND
  REPORTING OBLIGATIONS

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  During
  business hours or other times.

  	
   

  	
  Minor
  Problem

  	
   

  	
  Initial
  response to request within [*] during business hours and [*] after business hours
  begins if reported outside of business hours.

  	
   

  	
  Responsible
  party will provide notifications [*] per business day until Problem
  Resolution.  All such notifications
  will be to the other party’s NOC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Problem
  Resolution or plan for Problem Resolution by next business day.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  During
  normal business hours (8:00 a.m. — 6:00 p.m.

  	
   

  	
  Problem

  	
   

  	
  Initial
  response to request within [*]

  	
   

  	
  Responsible
  party will provide a proposed Problem Resolution.  If the Problem

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


*  Certain information on this page has been
omitted and filed separately with


   the Commission. Confidential treatment has
been requested with respect


   to the omitted portions.


 


 


                                                                                      
                                                                  Confidential


 


Page 4

















 


 


 


 


	
  PST

  Monday-Friday)

  	
   

  	
   

  	
   

  	
  [*].

  

  Problem Resolution or plan for Problem Resolution within [*].

  	
   

  	
  Resolution
  is not immediate, the responsible party will provide [*] on the first day of
  occurrence and then daily updates. All such notifications and updates will be
  sent to the other party’s NOC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  During
  normal business hours (8:00 a.m. — 6:00 p.m. PST Monday-Friday)

  	
   

  	
  Severe
  Problem

  	
   

  	
  Initial
  response to request within [*].

  

  Problem Resolution or plan for Problem Resolution within [*].

  	
   

  	
  Responsible
  party will provide a proposed Problem Resolution to address the Severe
  Problem. If the Problem Resolution is not immediate, the responsible party
  will provide notifications every [*] hours on the first day of occurrence and
  then daily updates thereafter.  All
  such notifications and updates will be to the other party’s NOC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  During
  normal business hours (8:00 a.m. — 6:00 p.m. PST Monday-Friday)

  	
   

  	
  Catastrophic
  Problem

  	
   

  	
  Initial
  response to request within [*].

  

  Problem Resolution or plan for Problem Resolution within [*].

  	
   

  	
  Responsible
  party will provide a proposed Problem Resolution to address the Catastrophic
  Problem. A Catastrophic Problem will result in escalation to the Primary
  business contact as identified in Article II above and as set forth in
  Section E below.  If the Problem
  Resolution is not immediate, the responsible party will provide notifications
  every [*] until resolved.  All such
  notifications and updates will be to the other party’s NOC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  During
  all other times.

  	
   

  	
  Problem

  	
   

  	
  Initial
  response to request within [*].

  

  Problem Resolution or plan for Problem Resolution within [*] of next business
  day.

  	
   

  	
  Responsible
  party will provide a proposed Problem Resolution in response to the Problem
  or Severe Problem.

  

  If the Problem Resolution is not immediate, responsible party will provide
  [*] on the first business day after the occurrence and then daily updates
  thereafter. All such notifications and updates will be to the other party’s
  NOC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  During
  all other times

  	
   

  	
  Severe
  Problem

  	
   

  	
  Initial
  response to request within [*].

  

  Problem Resolution or plan for Problem Resolution within [*].

  	
   

  	
  Responsible
  party will provide a proposed Problem Resolution in response to the Problem
  or Severe Problem.

  

  If the Problem Resolution is not immediate, responsible party will provide
  notifications every [*] on the first business day after the occurrence and
  then daily updates thereafter All such notifications and updates will be to
  the other party’s NOC.

  



 


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


                                                                                                                   Confidential


 


 


Page 5

















 


 


 


	
  During
  normal business hours (8:00 a.m. — 6:00 p.m. PST Monday-Friday)

  	
   

  	
  Catastrophic
  Problem

  	
   

  	
  Initial
  response to request within [*].

  

  Problem Resolution or plan for Problem Resolution within [*].

  	
   

  	
  Responsible
  party will provide a proposed Problem Resolution to address the Catastrophic
  Problem. A Catastrophic Problem will result in escalation to the Primary
  business contact as identified in Article II above and as set forth in
  Section E below.

  

  If the Problem Resolution is not immediate, the responsible party will
  provide notifications every [*] until resolved. All such notifications and

  updates
  will be to the other party’s NOC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  During
  business hours or other times.

  	
   

  	
  Implementation
  Changes

  	
   

  	
  Within
  [*].

  	
   

  	
  Notification
  of or request for Implementation Changes should be sent to the Business
  Contacts outlined in Article II, section (i) and (ii)

  



 


 


 


        E.      Escalation Process.


 


        (i)     Each party hereby agrees to notify the other party’s NOC
within


                [*] of detecting any Problem,
Severe Problem, or Catastrophic


                Problem and to notify the
other party of a Minor Problem.


 


        (ii)    In the event that either party does not respond to the other


                party within the response time
from receipt of communication or


                detection of a Minor Problem,
Problem, Severe Problem, or


                Catastrophic Problem, then
each party may contact any of the


                personnel outlined in the
Contacts section, Article II.


 


        IV.     OPERATIONAL METRICS.


 


A.      Availability. Overture will maintain
[*]% Availability as measured by


        [*] production query logs, verified by
[*] with at least [*] intervals,


        reported [*]. In the event of
discrepancies between these two sources,


        Yahoo and Overture will work together
to determine root cause of such


        discrepancy. If Availability falls
below [*]%, Problem Resolution would


        occur, and the Cure Period (i.e., the
process under Article IV, Section


        G) would be in effect. Overture will
provide to Yahoo reasonable


        technical specifications for
redirecting traffic in case of temporary


        unavailability of an Overture search
data center.


 


B.      Capacity. Overture will provide capacity
based on Yahoo’s current


        forecast of [*] Yahoo Search Queries
per [*], supporting a peak rate of


        [*] (the “Peak Rate”), which is [*]
that of the average per day Yahoo


        Search Query rate. The parties
acknowledge that Yahoo’s volume forecast


        and “Peak Rate” will increase during
the Term. Overture will use


        commercially reasonable efforts
provide increasing capacity to


        accommodate such growth in a timely
fashion. [*]. Additionally, Overture


        will provide up to [*]% capacity
beyond these levels if so requested by


        Yahoo, provided that Yahoo gives a
minimum of [*] days prior written


        notice. Yahoo will notify Overture if
Yahoo anticipates an increase of


        Yahoo Search Queries by more than [*]%
in any calendar quarter. During


        the period of time that Overture is
working to accommodate the


        additional capacity, the Availability,
Response Times, and Timeouts will


        be


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


                                                                                                             
Confidential


 


 


Page 6

















 


 


 


        renegotiated for the additional
traffic. [*]. Finally, [*].


        Notwithstanding the previous sentence,
if Yahoo delivers Yahoo Search


        Queries [*].


 


C.      Site monitoring. Overture will monitor
the performance of its


        obligations under this Agreement using
automated tools/utilities


        developed and/or configured by
Overture, or contracted with external


        third parties, to validate the
Availability of [*]% and response


        times. Additionally, Yahoo will
perform a [*] test for compliance with


        operational metrics and will share
such results with Overture on a [*]


        basis. If either party detects fault,
the discovering party will respond


        as defined in Article III, “Support
Procedures.”


 


D.      Response Times. Overture will comply with
the following operational


        metrics:


 


      [ ] INTERNAL OVERTURE RESPONSE TIME
shall [*].


 


      [ ] AGGREGATE RESPONSE TIME shall [*].
In the event of discrepancies


          between these two sources, Yahoo and
Overture will work together to


          determine root cause of such discrepancy.


 


      [ ] RESPONSE TIME ENHANCEMENT. The
parties mutually agree that they


          will employ reasonable efforts to
provide an Average Aggregate


          Response Time that is lower than the
stated number in this SLA.


          Specifically, the parties will
engage in good faith efforts to develop


          co-location infrastructure to
support enhanced operational metrics.


          Upon the mutually acceptable
completion of such co-location efforts,


          the parties agree to amend this SLA to improve the
operation metrics


          set forth in this Section IV.


 


E.      Critical Thresholds. Aggregate Response
Time that is greater than [*]


        will result in Timeouts (the “Critical
Threshold”).


 


F.      Problems and Critical Threshold. If
there is a Severe Problem or


        Catastrophic Problem, Yahoo may, at
its discretion, lower the Critical


        Threshold until a Problem Resolution
is completed. Additionally, if


        Severe Problem or Catastrophic Problem
results in no results being


        returned to Yahoo within any
threshold, Yahoo may, at its discretion,


        disable the Overture results until a
Problem Resolution is completed.


 


G.      Cure Period. Once the responsible party
is identified for a Minor


        Problem, Problem or Severe Problem,
according to Article III, Section B


        or C, the responsible party shall
identify and communicate a Problem


        Resolution or plan and shall comply
with the support table set forth in


        Article IV. The responsible party
shall use commercially reasonable


        efforts to implement a Problem
Resolution as soon as possible and in any


        event, within 8 business days, and to
implement Problem Resolution for


        Minor Problems as soon as possible
and, in any event, within 21 days. If


        the responsible party cannot implement
a Problem Resolution for the


        Problem or Severe Problem within 8
business days, the other party may


        deem such failure an Escalation Event
pursuant to Section 16.5(a) of the


        Agreement. Overture’s failure to
comply with the operational metrics set


        forth in Article IV, Sections A or D
will be deemed a Problem and will


        be subject to this Section G of
Article IV.


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


                                                                           
                                   Confidential


 


 


Page 7

















 


H.      DNS. Overture uses DNS-based global load
balancing to direct search


        traffic to one of the several
facilities that serve Overture’s search


        traffic. Yahoo servers shall adhere to
the TTL in the Overture name


        server resolution response (no more
than [*]), periodically


        querying the Overture DNS servers to
determine the IP address of the


        Overture site where the Yahoo servers
must direct their query traffic.


        Overture will not be responsible for
satisfying requirements for


        Availability Response Times if TTLs
exceed [*].


 


I.      Maintenance Requirements. Normal
Maintenance occurs on [*], and will not


        exceed [*], and will not be counted in
the determination of Availability


        (Section A) and Response Times
(Section D) of this Section IV.


 


J.      Monitoring Servers. In addition to the
Yahoo’s servers monitoring


        Aggregate Response Times, Overture may
at its option place a monitoring


        server (or servers, one for each site)
proximal to the Yahoo production


        network to aid in the resolution of
connectivity and Network Response


        problems. Yahoo may place a monitoring
server (or servers, one for each


        site) proximal to the Overture
production network, also to aid in the


        resolution of connectivity and Network
Response problems.


 


K.      Reporting. Both parties will make
available upon request, in a format


        mutually agreed by both parties, a
report showing Availability, Internal


        Response Time and Aggregate Response
Time as measured under this SLA.


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


                                                                                                               
Confidential


 


 


Page 8

















 


 


EXECUTION                                                                                                                                 
CONFIDENTIAL


EXHIBIT B


 


YAHOO SEARCH BOXES


 


 


[Graphic of Yahoo Search Box]


 


 


 


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 

















 


 


EXECUTION                                                                                    
                                             CONFIDENTIAL


 


EXHIBIT C


 


YAHOO SEARCH RESULTS PAGES


 


 


[Graphic depicts example of “mouse over”
Overture search result and


corresponding text box with result
description]


 


 


[Graphic depicts search results page on
Yahoo network, including implementation


and presentation of Overture search
results] 


 


 


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 

















 


EXECUTION                                                                                                                                 
CONFIDENTIAL


 


EXHIBIT D


 


         YAHOO! AND OVERTURE EXTEND
PAY-FOR-PERFORMANCE SEARCH AGREEMENT


OVERTURE
CONTINUES TO POWER SUCCESSFUL YAHOO! SPONSOR MATCHES PROGRAM


SUNNYVALE
& PASADENA, Calif. — (BUSINESS WIRE) — April 25, 2002 — Yahoo! Inc.
(Nasdaq:YHOO - news), a leading global Internet company, and Overture Services,
Inc. (Nasdaq:OVER - news), the world’s leading provider of Pay-For-Performance
search to Web sites across the Internet, today announced that they have
extended their relationship to a three-year agreement to distribute Overture’s
search listings through Yahoo! Sponsor Matches.


 


Under
the agreement, Overture will continue to provide Yahoo! with its editorially
reviewed Pay-For Performance search results from its growing base of 60,000
advertisers. This agreement is a renewal of a relationship that began in
November 2001. The terms of the agreement were not disclosed.


 


“We
will continue to leverage our strength as the leading search platform and are
extremely pleased to be working with an industry leader like Overture,” said
Terry Semel, chairman and chief executive officer, Yahoo! Inc. “Search and paid
listings are key growth areas for Yahoo! and with the strong success of Sponsor
Matches since its launch in November, we are looking forward to providing even
more comprehensive and enhanced search opportunities for advertisers and
consumers.”


 


Yahoo!
Sponsor Matches is an enhanced placement program that gives Web sites increased
visibility in Yahoo!’s search results, distinguished in clearly demarcated
sections. Since its inception, the Yahoo! Sponsor Matches program has shown
strong performance and experienced click-through rates considerably higher than
the industry average. Businesses are able to reach their targeted consumers
more effectively through enhanced placement in search results on keywords that
are relevant to their business and consumers are able to find services that are
relevant to their needs.


 


“We
are excited to announce this long-term partnership with one of the most popular
destination sites on the Internet,” said Ted Meisel, president and chief
executive officer, Overture Services, Inc. “It is clear that Yahoo! views
search as a strategic priority and we look forward to developing new search
products with them in the future.”


 


Overture’s
search results are generated by Overture’s 60,000 advertisers who bid for
placement on keywords that are relevant to their businesses. These listings are
carefully screened by Overture’s 100-person editorial team before being
distributed to the company’s affiliate partner network, which includes many of
the Internet’s most popular destination sites.


 


About
Yahoo!


Yahoo!
Inc. is a leading provider of comprehensive online products and services to
consumers and businesses worldwide. Yahoo! reaches more than 237 million
individuals worldwide each month, and is the No. 1 Internet brand globally. Headquartered
in Sunnyvale, Calif., Yahoo!’s global network includes 25 World properties and
is available in 13 languages.


 


About
Overture (formerly GoTo)


Overture,
(Nasdaq: OVER - news), formerly known as GoTo, is the leader in
Pay-For-Performance search on the Internet. The company created the market for
Pay-For-Performance search by redefining how businesses market online. In the
first quarter of 2002, Overture facilitated more than 587 million paid
introductions on a worldwide basis between consumers and its approximately
60,000 advertisers, who bid for placement on relevant search results and pay
Overture only when a consumer clicks on their listing. Following a rigorous
screening for user relevance by Overture’s 100-person editorial team, the
company distributes its search results to tens of thousands of sites across the
Internet, including America Online, Microsoft and Yahoo! - making it the
largest Pay-For-Performance search and advertising network on the Internet.
Overture is based in Pasadena, California, with offices in New York, San
Francisco and the UK, Germany and Ireland. For more information, visit
www.overture.com.


 


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 

















 


Yahoo!
and the Yahoo! logo are registered trademarks of Yahoo! Inc. Overture and
Pay-For-Performance are service marks of Overture Services Inc. All other names
are trademarks, registered trademarks or service marks of their respective
owners.


 


This
press release contains forward-looking statements within the meaning of the
federal securities laws. These forward-looking statements include without
limitation statements regarding Yahoo!’s users will continue to use Overture
search results, that advertisers and businesses will want to participate in
Sponsored Matches by seeking enhanced placement in the search results, that
businesses will be able to reach customers more effectively through enhanced
placement in search results, that the companies will develop new search
products. These forward-looking statements are subject to risks and
uncertainties that could cause actual results and events to differ materially.
These risks and uncertainties include, among others that the implementation may
not be successful or generate revenue for Overture or yield economic benefits
to Overture, that the development of new search products may not happen and if
it does happen that it will be successful or generate revenue for Overture or
yield economic benefits to Overture, the risk that Overture’s advertisers and
businesses may not want traffic from Yahoo! and the risk that Yahoo!’s users
may not want to use the Sponsor Matches product. For a discussion of other
risks that could cause actual results or events to differ materially from such
forward-looking statements, see the discussion of “Risks That Could Affect Our
Financial Condition and Results of Operations” in Overture’s 10-K filing with
the SEC for the period ended December 31, 2001. Overture undertakes no
obligation to update forward-looking statements to reflect events or
circumstances occurring after the date of this press release.


--------------------------------------


Contact:


 


     Overture Services, Inc.


     Al Duncan, 626/685-5714 (Media)


      al@overture.com


     Jim Olson, 626/229-5242


      jim.olson@overture.com


     Laurie Berman, 626/229-5368 (Investors)


      laurie.berman@overture.com


        or


     Yahoo!


     Diana Lee, 408/349-6501


      dianalee@yahoo-inc.com


        or


     Fleishman Hillard PR


     Nicole Waddell, 503/221-2368


      waddelln@fleishman.com


 


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 

















 


EXECUTION                                                                                                                                
CONFIDENTIAL


EXHIBIT E


 


[*]


 


[*]


 


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 

















 


EXECUTION                                                                                                        
                        CONFIDENTIAL


EXHIBIT F


 


OVERTURE REPORTS


 


MAIN
MONTHLY REPORTS:


 


      —    
Yahoo average CPC


 


      —    
Published site wide CPC (delivered in the report following


            Overture’s quarterly announcement
of this number)


 


      —     Yahoo Search
Queries asked of Overture (number)


 


      —    
Total Actual Clicks delivered from Yahoo (number)


      [*]


 


SOURCE
OF QUERY REPORTS:


 


For
each unique source of Yahoo Search Queries (e.g., “next” Yahoo Search Results
Pages) that Yahoo “tags” pursuant to Section 8.4(a), Overture will provide the
following reports:


 


      —    
Average CPC for that source


 


      —    
Yahoo Search Queries asked of Overture from each source (number)


 


      —    
Total Actual Clicks delivered from Yahoo from each source (number)


      [*]


 


      —    
Total Gross revenue earned by Yahoo from each source


 


      —    
All of the above in a cumulative manner annually and over the Term


            (totals/averages across the term,
as distinct from the applicable


            Quarter)


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


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EXECUTION                                                                                                                                 CONFIDENTIAL


EXHIBIT G


 


EXCLUDED TERMS


 


[*]


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 

















 


 


EXECUTION                                                                                                                                
CONFIDENTIAL


EXHIBIT H


 


OVERTURE RESTRICTED COMPANIES


 


[*]


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 

















 


 


EXECUTION                                                     
                                                                           CONFIDENTIAL


EXHIBIT I


 


Subject:
Overture Signs Long-Term Yahoo! Agreement


 


Dear
Overture Advertiser:


 


Overture
is excited to announce the renewal of our Pay-for-Performance(TM) search
agreement with Yahoo! for the next three years. We are pleased to have secured
long-term agreements with two of the most popular destinations on the Internet
— Yahoo! and MSN. These agreements give Overture advertisers an opportunity to
reach a majority of all active Internet users.


 


Overture
search results will continue to appear on Yahoo at www.yahoo.com. As the
leading provider of comprehensive online products and services, Yahoo! reaches
millions of users and is the number one Internet brand globally.


 


Earlier
today we announced that our U.S. search distribution relationship with America
Online has ended, including AOL, AOL.com, Compuserve and Netscape (scheduled to
end in August). Overture will continue to provide its search results to AOL
Europe’s Internet properties in the UK, Germany and France.


 


The
strength of our affiliate network, which includes, Yahoo!, MSN, AltaVista,
Lycos, Infospace, AskJeeves, and CNET, allows Overture to deliver the quality
and quantity of leads you’ve come to expect from us.


 


We
are committed to your success and look forward to continuing to deliver the
highest return on your advertising investment.


 


Sincerely,


 


 


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 

















 


EXECUTION                                                                                                                                
CONFIDENTIAL


EXHIBIT J


 


OVERTURE DISQUALIFIED ENTITIES


 


[*]


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 

















 


EXECUTION                                                                                                                                 CONFIDENTIAL


 


EXHIBIT K


 


ESTIMATED YAHOO PAYMENT AND GUARANTEED
FIXED PAYMENT ADJUSTMENT PROCESS


 


[*]


 


*
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  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 

















 


EXECUTION                                                                                                                               
CONFIDENTIAL


EXHIBIT 8.4


 


YAHOO
REPORTING:


Yahoo
will provide monthly Yahoo Search Query reports that include the following
categories of information:


 


      [*]


 


YAHOO
SEARCH QUERY, IMPRESSION AND `BOT TRAFFIC VERIFICATION INFORMATION:


Yahoo
will provide Overture with the following information in a data field at the
time-of-search to enable Overture to develop its own reasonable estimates of
searches performed by `bots as a percentage of Yahoo Search Queries and
Impressions:


 


      [*]


 


Yahoo
will be entitled to encrypt such information so long as the encryption
algorithm is consistent (allowing Overture to verify valid searches performed
by human users in a consistent manner that is time-independent). Accordingly,
Yahoo will provide Overture with six weeks notice prior to a change in the
encryption data, which preserves the utility of the data for the purpose of
verifying valid Impressions and Search Queries.


 


 


*
Certain information on this page has been omitted and filed separately with


  the Commission. Confidential treatment has
been requested with respect to the


  omitted portions.


 


 


 


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