exv10w12






Exhibit 10.12



[ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.




WATERFRONT MEDIA, INC.

45 Main Street, #800

Brooklyn, NY 11201



February 12, 2008




SBD/Waterfront Media Limited Partnership

c/o William Morris Agency, LLC

1325 Avenue of the Americas

New York, NY 10019

Attn: Eric Zohn




[ * ]

[ * ]

[ * ]

[ * ]





			
	      Re:	 	“South Beach Diet” Online Diet and Weight Loss Service




Dear Gentlepeople:




     This letter agreement (“Agreement”) sets forth the terms of the agreement among Waterfront
Media, Inc. (“Waterfront”), SBD/Waterfront Media Limited Partnership (“SBD/WM LP”) [ * ] regarding
Waterfront’s development, distribution, marketing and exploitation of an online subscription and/or
advertising supported diet and weight loss service related to any and all “South Beach Diet”
book(s) written by Dr. Arthur Agatston (“Agatston”) [ * ] prior to and during the Term (“SBD
Books”). A list of currently existing SBD Books is attached hereto as Schedule A.



     The parties acknowledge that the agreement among Agora Media, Inc. (predecessor in interest to
Waterfront), SBD, LLC (predecessor in interest to SBD/WM LP) [ * ] dated May 9, 2003 (the “Previous
Agreement”) is, as of the date of this letter, currently in effect and will remain in effect,
pursuant to its terms, until its expiration on May 9, 2008. This Agreement does not amend or
supersede the Previous Agreement which continues in accordance with its terms until its expiration.
This Agreement is intended to address the parties’ relationship only upon expiration of the
Previous Agreement, and shall apply at such time notwithstanding any contrary term in the Previous
Agreement.




	1.	 	Grant of Rights:





     (a) During the Term [ * ], SBD/WM LP [ * ] grant to Waterfront the non-exclusive worldwide
license and right to reproduce, develop, distribute, publicly perform, publicly display, translate
into all languages, modify, and adapt on the Internet (all with SBD/WM LP’s pre-approval as set
forth in Paragraph 5 below), (i) the content contained in the SBD Books (“SBD Book Content”),
provided such content from any SBD Book is not displayed in its entirety or as a so-called e-book,
(ii) existing content (other than SBD Book Content) provided by SBD/WM LP to Waterfront relating to
the South Beach Diet, which shall include the material listed in Schedule B attached hereto (the
“Existing SBD Material”) and (iii) New Content (as defined in Paragraph 11(a) below) that has been
approved by SBD/WM LP pursuant to Paragraph 5 (collectively the “SBD Materials”) in the form of an
online subscription and/or advertising supported diet and weight loss service [ * ] now known or
hereafter invented (the “Service”). Notwithstanding the foregoing, Waterfront shall obtain the
approval of SBD/WM LP, in accordance with Paragraph



 









 







5 below, for the licensing of any content from the Service to any third party, which approval
may be withheld for any reason, whether Waterfront considers such decision reasonable or not.
Furthermore, notwithstanding the foregoing, the parties acknowledge and agree that the [ * ].



     (b) Subject to the provisions of Paragraph 14 below, during the Term [ * ]: (i) other than
pursuant to this Agreement, SBD/WM LP (including Agatston) [ * ] will not sell, license or
otherwise exploit (whether through an affiliate or other third party) any [ * ] using the SBD
Materials, or any other South Beach Diet branded content created or authorized by SBD/WM LP or
Agatston in the form of [ * ] and (ii) except in connection with customary promotional and
publicity activities by SBD/WM LP and/or Agatston [ * ] and/or their respective related entities,
publishers or licensees for any book or periodical materials created by SBD/WM LP or Agatston or
any other SBD Brand product or service, including promotion of the SBD Brand and SBD Books [ * ],
SBD/WM LP (including Agatston) [ * ] will not sell, license or otherwise exploit the SBD Materials,
or content using the SBD Brand, or Agatston’s name and likeness in connection with [ * ].
Notwithstanding the foregoing restrictions and the terms and conditions of this Agreement or
anything else to the contrary herein, (i) [ * ], (ii) [ * ] SBD/WM LP and Agatston shall not be
limited in any way from exploiting the online rights to academic and professional intellectual
properties or non-health/medical related properties, and (iii) [ * ] SBD/WM LP, and Agatston shall
not be limited in any way from exploiting new health programs not using the SBD Brand or the SBD
Materials or any other South Beach Diet branded content created or authorized by SBD/WM LP or
Agatston, a paid subscription print newsletter or any activities of any kind that do not otherwise
violate any restrictions on the activities hereunder.



     (c) Anything to the contrary notwithstanding, no material changes to the current business
model of the Service during the Term (e.g. removing the paid subscription wall) may be made at any
time without the prior written approval of SBD/WM LP [ * ].




	2.	 	Term:





     The term of this Agreement (the “Term”) shall commence immediately upon expiration of the
Previous Agreement on May 9, 2008, and, subject to earlier termination as herein provided, shall
continue for five (5) years (hereinafter each successive year of the Term shall be “Year 1”, “Year
2”, “Year 3”, “Year 4” and “Year 5”) [ * ]. Upon termination of this Agreement other than
termination due to a breach of this Agreement by Waterfront pursuant to Paragraph 13(a), (b) or
(c), [ * ]. Notwithstanding the foregoing, Waterfront shall have [ * ].




	3.	 	Development and Marketing of the Service; Certain Definitions:





     Waterfront shall at its sole expense (and with SBD/WM LP’s approvals, as applicable pursuant
to Paragraph 5 below), develop, market, distribute and exploit the Service. Waterfront agrees to
(i) [ * ] and (ii) [ * ].



     [ * ].



     As used in this Agreement, the following terms have the following meanings:



     [ * ].



     “Advertising Revenues” means all [ * ].



     “Subscription Revenues” means all [ * ].



     “Gross Revenues” means the sum of Advertising Revenues and Subscription Revenues.




	4.	 	SBD Materials:





     (a) SBD/WM LP shall, at its expense, furnish to Waterfront copies of the SBD Materials, and,
if





 




			
	[ * ]	 = 	Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.




2









 









updated, thereafter on a regular and timely basis, and provide Waterfront with reasonable
access to and copies of any other content related to the SBD Brand owned and controlled by SBD/WM
LP [ * ]. If necessary, SBD/WM LP shall update on a regular and timely basis all factual material
provided by SBD/WM LP and incorporated in the Service. Once updated materials are provided to
Waterfront, Waterfront shall modify the Service as promptly as reasonably possible to reflect such
changes.




     (b) SBD/WM LP shall provide the services of Agatston (or the services of a substitute mutually
agreed upon by SBD/WM LP and Waterfront (such agreement not to be unreasonably withheld by
Waterfront) it being understood that Sari Agatston is pre-approved as a substitute for Agatston)
(i) to consult regularly (no more then [ * ] except as expressly agreed to in writing by SBD/WM LP
and Waterfront) with Waterfront regarding the development and on-going production of the Service
and (ii) to actively participate in bulletin boards and online chats as and to the extent agreed to
by Agatston in his sole discretion and provide weekly content for question & answer articles in
connection with the Service during the Term as reasonably requested by Waterfront. The parties
acknowledge that consultation may be done by telephone, fax and/or e-mail.



     (c) During the Term [ * ] SBD/WM LP shall continue to maintain and make available to
Waterfront the “www.southbeachdiet.com” URL as a home page for the Service. As among the
parties, it is agreed that the aforementioned URL shall be owned by SBD/WM LP, or an affiliate, and
its use shall be governed by the terms set forth in this Agreement.




	5.	 	Approvals:





     Prior to any advertising for the Service that has not already been approved by SBD/WM LP or
any material updates or modifications of the content of the Service, Waterfront shall provide
SBD/WM LP, at Waterfront’s expense, access to the Service and such advertisements and/or updates or
modifications for the purpose of SBD/WM LP’s right to approve in writing of all aspects of the
Service and such advertisements, updates and/or modifications. SBD/WM LP’s approval of same shall
not be unreasonably withheld and any disapproval by SBD/WM LP shall be in writing to Waterfront.
SBD/WM LP’s failure to approve the Service or such advertising, updates and/or modifications within
five (5) business days after SBD/WM LP is provided access thereto, or receives such materials at
the address set forth in Paragraph 22 below if provided by mail, e-mail or fax, shall be deemed
approved by SBD/WM LP. Waterfront shall not, without SBD/WM LP’s written consent (which shall not
be unreasonably withheld), depart from the quality, form or content previously approved by SBD/WM
LP. Any approvals pursuant to this Paragraph 5 may be made by mail, email or fax to the addresses
set forth in Paragraph 22 below.




	6.	 	Use of Names and Marks:





     During the Term [ * ], SBD/WM LP grants Waterfront the worldwide, limited, non-exclusive right
to use, publish and broadcast, and to authorize others under Waterfront’s direction and control to
do so, Agatston’s name, voice and likeness and any and all of the Marks (as defined in Paragraph
14(c) below) relating to the South Beach Diet brand owned by SBD/WM LP or any of its related
entities (collectively, the “SBD Brand”) solely in connection with the Service and/or Waterfront
and the advertising and promotion thereof. Any such use, publication or broadcast by Waterfront
shall be subject to the approvals of SBD/WM LP set forth in Paragraph 5 above and shall otherwise
be consistent with SBD/WM LP’s reasonable written guidelines, provided in advance to Waterfront,
governing the quality, form and content of use of SBD/WM LP marks and services, it being
acknowledged by SBD/WM LP [ * ] that any uses approved under Paragraph 5 shall be deemed to be
consistent with SBD/WM LP’s guidelines. [ * ]. All uses of the SBD Brand shall be subject to SBD/WM
LP’s prior approval as set forth in Paragraph 5. Waterfront’s license to use the SBD Brand shall
expire upon the expiration or earlier termination of this Agreement, [ * ], in accordance with the
provisions of Paragraph 2 above. Waterfront shall not modify, alter or obfuscate the SBD Brand or
use them in a manner that disparages SBD/WM LP, Agatston [ * ] or their respective




 




			
	[ * ]	 = 	Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.





3









 




products or services or in an otherwise improper or deceitful manner such as an unauthorized
URL re-direct, it being acknowledged by SBD/WM LP [ * ] that any uses approved under Paragraph 5
above shall be deemed not to be (i) a modification, alteration or obfuscation of the SBD Brand,
(ii) disparaging of SBD/WM LP, the SBD Brand [ * ] or [ * ] respective brands, products or
services, or (iii) an otherwise improper or deceitful manner of use. Presentation of the SBD Brand
shall at all times be such that the ownership of any particular trademark by SBD/WM LP is clearly
stated and all trademarks shall bear the “®” or “TM” symbols where applicable. Waterfront hereby
renounces ownership of and assigns to SBD/WM LP any goodwill which accrues as the result of
Waterfront’s use of the SBD Brand.





	7.	 	[ * ] Royalties:





     (a) [ * ] — Waterfront shall pay SBD/WM LP [ * ] of the Advertising Royalties, [ * ] Traffic
Royalties and the Subscription Royalties, as defined and set forth below (and collectively referred
to as “Royalties”), due to [ * ]. [ * ]:



[ * ]

[ * ]

[ * ]

[ * ]

[ * ]



All Royalties payable to [ * ].




     (b) [ * ]



     (c) Waterfront will pay a royalty (the “Subscription Royalty”) to [ * ] calculated on [ * ] in
the amount of the greater of: (i) [ * ] of the Subscription Revenues and (ii) [ * ] of Subscription
Revenues [ * ] in the relevant [ * ].



     (d) Waterfront will pay a royalty (the “[ * ] Traffic Royalty”) to [ * ] calculated on [ * ]
in the amount of [ * ] of Subscription Revenues [ * ].



     (e) Waterfront will pay [ * ] a royalty (the “Advertising Royalty”) of [ * ] of
Waterfront’s Advertising Revenues, as calculated on [ * ]. All such advertising on the Service
shall be approved in advance by SBD/WM LP in writing in accordance with Paragraph 10 below.



     (f) Waterfront’s obligations to pay any Royalties accrued to [ * ] during the Term shall
survive termination of this Agreement. Any Royalties payable under this Agreement shall be paid
within 45 days after the end of the [ * ] in which they accrue.



     (g) As between SBD/WM LP and Waterfront, SBD/WM LP will [ * ] to [ * ] by the Service such as
[ * ] on [ * ] and [ * ] for use in the Service [ * ] without any [ * ] in connection with [ * ] of
such [ * ] (including without limitation in [ * ] and other [ * ]) subject to the provisions of
Paragraph 14(e) below.




	8.	 	Accounting and Audit:





     Waterfront shall provide SBD/WM LP [ * ] with [ * ] statements of account (including, without
limitation, a report in the form attached hereto as Schedule C, accompanied by payment of any
Royalties then due to SBD/WM LP [ * ]. Upon reasonable prior written notice to Waterfront and no
more frequently than once each Year during the Term, SBD/WM LP [ * ] shall have the right, at [ * ]
expense and through a third party auditor appointed by SBD/WM LP [ * ], to examine the books and
records (including those in computer form) of Waterfront solely to the extent related to statements
provided to SBD/WM LP [ * ] by Waterfront pursuant to this Paragraph 8. Any such audit shall be
conducted only during the business hours of Waterfront and shall not be unreasonably disruptive of




 




			
	[ * ]	 = 	Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.





4









 




Waterfront’s business or operations. The auditor must agree to confidentiality and security
terms reasonably imposed by Waterfront with respect to such examination and audit. In the event a
discrepancy of [ * ] or more in favor of SBD/WM LP [ * ] is discovered, Waterfront shall also pay
the reasonable cost of such inspection up to the amount of any discrepancy. Upon signature of this
Agreement, Waterfront will provide SBD/WM LP [ * ] with dates and times sufficient for an audit of
Waterfront’s books and records with respect to accountings and payments made pursuant to the
Previous Agreement.





	9.	 	Ownership of User Data:





     (a) Subject to Paragraph 9(b) below, [ * ] consumer data (whether or not paid subscriber
data) generated in connection with the Service (the “SBD Consumer Data”).



     (b) Waterfront may [ * ] Waterfront product or service) for the [ * ] promoting and
operating the Service [ * ] (including without limitation, [ * ] except as permitted under
Paragraph 10 below, provided that Waterfront [ * ] during the Term hereof. Notwithstanding the
foregoing, Waterfront shall have the ability to passively track consumers that signed up for the
Service but did not sign up for any other Waterfront product or service for the purpose of serving
appropriate or targeted display advertisements to such consumers. Waterfront will not allow any
third party to use such exclusive SBD Consumer Data. [ * ]. The restrictions of this Paragraph 9
will survive the termination or expiration of this Agreement. It is expressly agreed that
Waterfront is not restricted in any way from using for any purpose any consumer data (which is not
exclusive SBD Consumer Data as defined above) generated from Waterfront’s products or services
other than the Service (“Separate Waterfront Consumer Data”). No rights of any kind are granted to
SBD/WM LP [ * ] relating to any such Separate Waterfront Consumer Data, nor shall any royalties or
other fees be owed to SBD/WM LP [ * ] for Waterfront’s exploitation of the Separate Waterfront
Consumer Data. The parties acknowledge and agree that the SBD Consumer Data referenced in this
paragraph [ * ].



     (c) Waterfront shall continue to use the DART tracking software or another third party
tracking software mutually agreed upon in writing by the parties to reflect sources of customer
acquisition for the Service and other reasonable tracking devices with respect to the Service that
are deemed advisable by the parties hereto. All information secured from such tracking software and
devices shall be deemed SBD Consumer Data hereunder.



     (d) All SBD Consumer Data shall be provided to SBD/WM LP [ * ] on a quarterly basis in a
format agreed upon by the parties but if no format is agreed, then it shall be sent in a clean
Microsoft Excel (PC) file. Upon signature of this Agreement, Waterfront shall provide SBD/WM LP
[ * ] with all paid subscriber data to be supplied pursuant to the Previous Agreement for use in
accordance therewith.




	10.	 	Advertising:





     All advertisers and advertising included in or for the Service (including, without limitation,
for cross-marketing, through opt-in registration, of Waterfront’s newsletters within the Service)
must be approved in writing by SBD/WM LP, and it is agreed that no such advertising shall be
furnished to products or services that are competitive with the Service or the SBD Brand or for
alcohol, tobacco, firearms or weight loss products. In addition, advertising or sponsorship for
food, beverages, pharmaceuticals, nutriceuticals and OTC drugs shall be accepted only following
prior written approval of the specific product by SBD/WM LP. Notwithstanding the foregoing, the
parties acknowledge and agree that Waterfront’s cross-marketing, through opt-in registration, of
the following newsletters (or newsletters substantially similar in nature in the event the title of
such newsletter changes) shall be permitted and deemed to be approved by SBD/WM LP provided that
such newsletters, upon delivery to individuals that signed up for such newsletters through the
Service, [ * ].




	11.	 	New Content:





     (a) The parties acknowledge that users will supply Consumer Generated Material. In addition,
SBD/WM LP and Waterfront will each create new content in response to such Consumer Generated
Material as well as other new content for the Service, including without limitation the content to
be provided pursuant to




 




			
	[ * ]	 = 	Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.




5









 




Paragraph 4(a) above (collectively, the Consumer Generated Material as well as new content
supplied by SBD/WM LP[ * ] or Waterfront are referred to as “New Content”).




     (b) [ * ]



     (c) Any new content (other than the SBD Materials) not using the SBD Brand [ * ] shall not be
covered by this Agreement. It is agreed that any new content (other than the SBD Materials) desired
by Waterfront for the Service shall be the responsibility of Waterfront to provide at its sole
expense. It is agreed that any recipes requested by Waterfront and provided by [ * ] from its
database of recipes shall be paid by Waterfront at [ * ] for the Term [ * ], excluding recipes
covered in Schedule A. Any reasonable staff and freelance time charges and out of pocket expenses
incurred by [ * ] in connection with the testing of recipes shall be invoiced by [ * ] to
Waterfront and paid by Waterfront within ninety (90) days of each such invoice.




	12.	 	Promotional Activities:





     During the Term, SBD/WM LP shall furnish Agatston (or a substitute supplied by SBD/WM LP who
is mutually agreed in writing by SBD/WM LP and Waterfront for up to [ * ] of such appearances) for
at least [ * ], for public appearances, publicity events and other marketing efforts as reasonably
agreed in writing between SBD/WM LP and Waterfront, and subject to Agatston’s other bona fide
professional obligations. SBD/WM LP will make reasonable efforts to promote the Service in all
personal and media appearances made by Agatston or any other SBD/WM LP representative.




	13.	 	Termination / Force Majeure:





     (a) Any of the parties shall have the right to terminate this Agreement in the event that
another party purports to transfer this Agreement or its rights hereunder in violation of Paragraph
21. The failure of a party hereto to perform its obligations on account of an event beyond its
reasonable control, including, without limitation, strikes, labor disputes, war, terrorism, natural
disaster, civil disturbance, or actions or decrees of governmental bodies or agencies (each, a
“force majeure event”) shall not constitute a breach of this Agreement by such party, it being
understood, however, that such party shall make all reasonable efforts to cure such failure upon
the cessation of such force majeure event. Notwithstanding the forgoing, if such force majeure
event lasts for more than six consecutive months or nine months in the aggregate, then any of the
parties hereto shall have the right to terminate this Agreement.



     (b) This Agreement may be terminated by any party upon [ * ] written notice to the other party
of a breach of a material provision of this Agreement by any other party, and the failure of the
breaching party to cure such breach within said [ * ] period, assuming such breach is subject to
being cured, otherwise, it will automatically terminate [ * ] after such written notice.
Notwithstanding the foregoing, in the event that [ * ] SBD/WM LP is the breaching party pursuant to
the preceding sentence, the Agreement shall not be terminated unless Waterfront is the party that
provides written notice of breach in accordance with the preceding sentence.



     (c) In the event any party hereto files a petition in bankruptcy or is adjudicated as bankrupt
or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to
any bankruptcy law, or has a receiver appointed for its business and such receiver is not
discharged within thirty (30) days, then the other [ * ] shall have the right to terminate this
Agreement immediately upon written notice.



     (d) (i) In the event Agatston is convicted or pleads nolo contendere to any crime
involving moral turpitude during the first four years of the Term which, in the exercise of
reasonable judgment, would likely significantly undermine his credibility in promoting the South
Beach Diet, Waterfront shall thereupon have the right to elect, by written notice to SBD/WM LP
[ * ], to terminate [ * ] set forth in this Agreement.




 




			
	[ * ]	 = 	Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.




6









 





     (ii) Waterfront shall use its best efforts to secure a life insurance policy (the “Life
Insurance Policy”) on the life of Agatston during the first four years of the Term with a coverage
limit of [ * ] during the first year of the Term, [ * ] during the second year of the Term, [ * ]
during the third year of the Term and [ * ] during the fourth year of the Term (the “Approved Death
Benefits”). SBD/WM LP shall ensure the reasonable cooperation of Agatston to assist Waterfront with
obtaining such life insurance coverage (including customary medical testing required by the
insurer, it being understood that Agatston shall be entitled to have his own physician present at
any and all medical examinations).



     Waterfront shall fund the aggregate premiums for such Life Insurance Policy up to the amount
of [ * ] (the “Cap”) in total over the first four years of the Term. In the event that the
aggregate premiums of such Life Insurance Policy due during the first four years of the Term exceed
the Cap in order to secure the Approved Death Benefits, the parties will mutually agree upon the
nature and extent of the death benefits payable under the Life Insurance Policy for a total premium
of [ * ] over the first four years of the Term and SBD/WM LP [ * ] shall have the option to pay the
insurer on behalf of Waterfront all or a portion of the aggregate premiums due which exceed the Cap
in order to secure full death benefits in an amount equal to the Approved Death Benefits.



     In the event that Agatston dies during the first four years of the Term and benefits are paid
to Waterfront under the Life Insurance Policy (the “Benefits”), Waterfront shall immediately [ * ]
(the “Assigned Benefits”) and such payments of Assigned Benefits shall be [ * ]. In such event,
Waterfront shall thereupon have the right to elect, by written notice to SBD/WM LP [ * ], to
terminate [ * ].



     In the event that Agatston dies during the first four years of the Term and (A) Waterfront has
been unable to secure a Life Insurance Policy on Agatston’s life or (B) Waterfront had secured a
Life Insurance Policy on Agatston’s life but SBD/WM LP [ * ] declined to pay the insurer on behalf
of Waterfront the portion of aggregate premiums due which exceed the Cap and consequently the Life
Insurance Policy is no longer in effect upon Agatston’s death, Waterfront shall thereupon have the
right to elect, by written notice to SBD/WM LP [ * ], to terminate [ * ] set forth in this Agreement.



     (iii) If Agatston suffers from a disability which renders him unable to provide his services
hereunder or generally promote the South Beach Diet for a period of [ * ] during the first four
years of the Term, Waterfront shall thereupon have the right to elect, by written notice to SBD/WM
LP [ * ], to terminate [ * ] of the [ * ] set forth in this Agreement.



     (iv) If (A) Agatston has a heart attack during the first four years of the Term resulting
from Confirmed Heart Disease as defined below (an “Agatston Heart Attack”), (B) such Agatston Heart
Attack becomes known to the general public and (C) the number of subscribers to the Service at the
expiration of the 60-day period immediately following initial general public knowledge of such
Agatston Heart Attack (“First Public Knowledge”) is less than 80% of the number of subscribers to
the Service Waterfront had previously budgeted for such period (taking into account and adjusting
for any customary seasonal reduction); it being agreed that Waterfront shall not, during such 60
day period, materially change its marketing activities on behalf of the Service, Waterfront shall
thereupon have the right to elect, by written notice to SBD/WM LP [ * ], to terminate [ * ] set
forth in this Agreement. Notwithstanding the foregoing, the event set forth in clause “(B)” above
shall not deemed to have occurred if Waterfront is the source or cause of such First Public
Knowledge, unless the public disclosure of such Agatston Heart Attack was otherwise inevitable. For
the purposes of this Agreement, “Confirmed Heart Disease” shall be defined to mean a clinical
presentation consistent with an acute coronary syndrome and either new abnormal Q waves in two or
more electrocardiographic leads or positive results in cardiac biomarkers (CPK, MD fraction> 8.8
and Troponin I> 0.4) as confirmed by two independent board certified cardiologists.



     (v) In the event that Waterfront elects, pursuant to Paragraph 13(d) (i), (ii), (iii) or
(iv) above, to terminate [ * ] set forth in this Agreement, [ * ] by Waterfront prior to the
effective date of such [ * ] termination




 




			
	[ * ]	 = 	Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.




7









 




and Waterfront’s remaining obligations hereunder [ * ] and to pay Royalties pursuant to this
Agreement) shall remain in full force and effect pursuant to the terms set forth in this Agreement.
Notwithstanding the foregoing, in the event that Waterfront’s [ * ] terminates in accordance with
the provisions of Paragraph 13(d) (i), (ii), (iii) or (iv) above, [ * ] SBD/WM LP [ * ] shall have
the option to terminate this Agreement upon [ * ] written notice to Waterfront.




     (e) [ * ]




	14.	 	Reservation of Rights:





     (a) All rights in the SBD Materials [ * ], except those specifically granted to
Waterfront hereunder, are retained by and reserved to SBD/WM LP [ * ].



     (b) SBD/WM LP [ * ] acknowledge that Waterfront shall have the right to include Waterfront
branding as part of the Service as approved by SBD/WM LP [ * ] in writing; provided, however,
Waterfront is pre-approved to include an industry-standard “Powered by Waterfront Media” and/or an
“Everyday Health Network” credit logo, in the form attached hereto as Schedule D, which shall not
link to any other Web site or location.



     (c) Each party acknowledges and agrees that: (i) the logos, trade names, trademarks, URLs and
service marks (collectively, the “Marks”) of each party are and shall remain the sole property of
that party; (ii) nothing in this Agreement shall confer on any party any right of ownership in the
other parties’ respective Marks; and (iii) the validity of the Marks of any party shall not now or
in the future be contested by the other parties.



     (d) SBD/WM LP [ * ] acknowledge and agree that Waterfront presently engages in the
development, distribution and marketing of online newsletters and community application products
other than the Service and that Waterfront shall be permitted to continue to do so separate and
apart from this Agreement. Waterfront agrees that the Service will have segregated and dedicated
editorial and brand management teams who shall not share proprietary information or business plans
for the Service or the SBD Brand with any other Waterfront editorial or brand management personnel.



     (e) Notwithstanding anything set forth in this Agreement (including, without limitation,
Paragraph 1 above) but subject to any other agreements between [ * ] SBD/WM LP, Agatston or their
related entities with respect to the SBD Materials:



     The right to maintain (i) any websites promoting, advertising or selling SBD Books [ * ] and
any 3rd party licensees of SBD/WM LP and its related entities, and (ii) any websites servicing,
promoting, advertising or selling any prepared SBD Brand food-related home delivery business, are
expressly reserved to SBD/WM LP; provided, however, that the rights reserved in this paragraph
14(c) shall not apply in the event that any such website’s primary source of revenue is from the
sale of advertising or the sale of access (through subscription or otherwise) to SBD Materials or
SBD branded content available through the Internet.




	15.	 	Confidentiality:





     The parties hereto shall keep the terms and conditions of this Agreement confidential, as well
as the timing and amounts of any payments made by any party to another party pursuant to this
Agreement.




	16.	 	Representations and Warranties:





     (a) SBD/WM LP represents and warrants that: (i) SBD/WM LP has the right and authority to enter
into this Agreement and to make the grant of rights [ * ] to Waterfront as set forth herein, and
(ii) all rights assigned




 




			
	[ * ]	 = 	Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.





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and/or granted to Waterfront under this Agreement are, [ * ], solely and exclusively owned by
SBD/WM LP or under exclusive license to SBD/WM LP throughout the world and Waterfront’s
incorporation of such material into the Service shall not violate or infringe upon the copyright,
trademark, rights of privacy or any other rights whatsoever of any third parties, and (iii) SBD/WM
LP is not aware of any third party claim for personal injury, including death, against SBD/WM LP
and/or Agatston arising from or relating to use of the SBD Materials.




     (b) [ * ]



     (c) SBD/WM LP shall defend, indemnify and hold Waterfront harmless from any and all claims,
damages, liabilities, costs or expenses, including reasonable outside attorneys’ fees, incurred by
or imposed on Waterfront by reason of (i) any breach of the foregoing warranties and
representations in Paragraph 16(a), or (ii) any third party claim for personal injury, including
death, arising from or relating to use of the SBD Materials. [ * ].



     (d) Waterfront represents and warrants that: (i) Waterfront has the right and authority
to enter into this Agreement, and (ii) all materials incorporated into the Service by Waterfront
which do not originate with SBD/WM LP, [ * ] Agatston or Service users, shall not violate or
infringe upon the copyright, trademark, rights of privacy or any other rights whatsoever of any
third parties. Waterfront shall defend, indemnify and hold SBD/WM LP [ * ] harmless from any and
all claims, damages, liabilities, costs or expenses, including reasonable outside attorneys’ fees,
incurred by SBD/WM LP [ * ] by reason of any breach of the foregoing warranties and representations
of Waterfront.


17. Disclaimer of Warranties: EXCEPT FOR THE LIMITED WARRANTIES UNDER THIS AGREEMENT,
NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICE OR
THE DISTRIBUTION THEREOF.



18. Loss of Data/Interruption of Distribution: NO PARTY SHALL BE LIABLE FOR ANY LOSS OF
DATA OR INTERRUPTION OF ITS DISTRIBUTION OF THE SERVICE FOR ANY REASON BEYOND ITS REASONABLE
CONTROL, AND SUCH LOSS OF DATA OR INTERRUPTION OF ITS DISTRIBUTION OF THE SERVICE SHALL NOT BE
DEEMED A BREACH OF THIS AGREEMENT.



19. Arbitration:




     Intentionally Deleted


20. Bankruptcy: In addition to any rights or remedies SBD/WM LP [ * ] may have under
Paragraph 13(c), in the event that Waterfront files any proceeding for relief from its creditors
under the bankruptcy laws of the United States or any similar proceeding under the laws of any
state and Waterfront does not meet its obligations to SBD/WM LP under the terms of this Agreement,
then all rights to be exercised by Waterfront under this Agreement in the future shall be
terminated (it being understood that Waterfront shall nevertheless remain liable for [ * ],
Royalties and any other sums due SBD/WM LP [ * ] hereunder) and any rights that Waterfront has to
the SBD Materials shall automatically revert to SBD/WM LP [ * ].



21. General:




     This Agreement contains the entire understanding of the parties with respect to the subject
matter hereof, and supercedes any and all prior agreements, understandings, promises and
representations made by a party to the other parties concerning the subject matter hereof and the
terms applicable hereto. It may not be changed orally, but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification, extension or discharge
is sought. No delay on the part of any party hereto in exercising any right





 




			
	[ * ] 	 = 	Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 406 of the Securities
Act of 1933, as amended.





9









 




hereunder or under applicable laws, shall operate of a waiver of such right. If any provision
of this Agreement is held to be invalid or unenforceable, the remaining provisions hereof shall not
be affected. Regardless of its place of physical execution or performance, the Agreement shall be
construed and enforced in accordance with the laws of the State of New York and without regard to
the principles of conflicts of law. No party may assign or transfer this Agreement or any of its
rights or duties hereunder without the prior written consent of the other parties, which shall not
be unreasonably withheld, except that (a) SBD/WM LP [ * ] may [ * ] assign this Agreement and all
of [ * ] rights and duties hereunder to entities owned or controlled by [ * ] and (b) any party may
assign or transfer this Agreement by merger, or acquisition or in connection with a sale of all or
substantially all of the party’s assets, provided that in the event of such assignment, transfer or
sale by Waterfront, [ * ] and provided further that the assignee, transferee or purchaser has the
requisite financial capacity and the requisite technical capacity, editorial experience and
personnel to fully perform the terms and conditions of this Agreement after the effective date of
such assignment, transfer or sale. The parties acknowledge and agree that any assignee, transferee
or purchaser shall be deemed to have the requisite editorial experience and personnel to fully
perform the terms and conditions of this Agreement after the effective date of such assignment,
transfer or sale if such assignee, transferee or purchaser has entered into employment agreements
for at least the remainder of the Term hereof with the key Waterfront personnel who were primarily
responsible for the performance of Waterfront’s obligations and duties hereunder prior to the
effective date of such assignment, transfer or sale. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument. A copy of an executed facsimile page shall be binding upon
a party for all purposes. This Agreement is binding upon and inures to the benefit of the parties
and their respective successors, licensees and assigns.



22. Notices:




     All notices hereunder shall be made in writing to the other parties at their designated
addresses below (or such other addresses as a party may update upon notice to the other parties in
accordance with this Paragraph 22), and either (a) delivered personally, (b) sent by certified mail
(when properly addressed and bearing proper postage), return receipt requested, (c) sent by
facsimile so long as proof of confirmation is maintained, or (d) only in the case of approval
requests and notices pursuant to Paragraph 5 above, by confirmed electronic mail. Notices sent via
certified mail shall be deemed given (i) three (3) days after deposit in the mail, (ii) upon
receipt when delivered personally, or (iii) upon transmission when delivered by facsimile or by
email.



Notices to Waterfront shall be sent to:



Waterfront Media, Inc.

45 Main Street, #800

Brooklyn, NY 11201

Attention: Alan Shapiro, Senior Vice President & General Counsel

Fax: (718) 797-1676

Email: ashapiro@waterfrontmedia.com




Notices to SBD/WM LP shall be sent to:




SBD/Waterfront Media Limited Partnership

1691 Michigan Avenue, Suite 500

Miami Beach, FL 33139

Attn: Sari Agatston

Fax: (305) 538-1979

Email: sari.agatston@southbeachdietlp.com






 




			
	[ * ] 	 = 	Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 406 of the Securities
Act of 1933, as amended.





10









 





With courtesy copies to:




William Morris Agency, LLC

1325 Avenue of the Americas

New York, NY 10019

Attn: Eric Zohn

Fax: 212-632-1223

Email:ezohn@wma.com




and




Frankfurt Kurnit Klein & Selz, PC

488 Madison Avenue

New York, NY 10022

Attn: Richard B. Heller, Esq.

Fax: (347) 438-2105

Email: rheller@fkks.com




[ * ]




[ * ]

[ * ]

[ * ]

[ * ]

[ * ]

[ * ]




[ * ]




[ * ]

[ * ]

[ * ]

[ * ]

[ * ]

[ * ]




     Please acknowledge your acceptance of the foregoing by signing below and returning a copy to
me.



Sincerely,




WATERFRONT MEDIA, INC.




By: /s/ Ben Wolin

Title: CEO




 




			
	[ * ] 	 = 	Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 406 of the Securities
Act of 1933, as amended.




11









 





Agreed and accepted:




SBD/WATERFRONT MEDIA LIMITED PARTNERSHIP

BY: SBD/Waterfront Media, Inc., its General Partner




By: /s/ Arthur Agatston

Its: President




[ * ]




[ * ]

[ * ]






 




			
	[ * ] 	 = 	Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 406 of the Securities
Act of 1933, as amended.





12









 





SCHEDULE A





	1.	 	The South Beach Diet: The Delicious Doctor Designed, Fool Proof Plan for Fast Healthy Weight
Loss [ * ]
	 
	2.	 	The South Beach Diet Cookbook [ * ]
	 
	3.	 	The South Beach Diet Quick & Easy Cookbook [ * ]
	 
	4.	 	The South Beach Diet Parties & Holidays Cookbook [ * ]
	 
	5.	 	The South Beach Diet Taste of Summer Cookbook [ * ]
	 
	6.	 	The South Beach Diet Good Fats Food Carbs Guide [ * ]
	 
	7.	 	The South Beach Diet Dining Guide [ * ]







 




			
	[ * ] 	 = 	Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 406 of the Securities
Act of 1933, as amended.





13









 





SCHEDULE B





	(1)	 	Access to written background material used to develop the books listed in Schedule A and the
South Beach Diet
	 
	(2)	 	Access to recipes provided from Agatston or Agatston trained nutritionists to Agatston
patients
	 
	(3)	 	Access to generic (not patient specific) support information provided to patients.
Example: Exercise Plans







 




			
	[ * ] 	 = 	Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 406 of the Securities
Act of 1933, as amended.





14









 





SCHEDULE C




Sample Report






 




			
	[ * ] 	 = 	Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 406 of the Securities
Act of 1933, as amended.





15









 





SCHEDULE D






 




			
	[ * ] 	 = 	Certain confidential information contained in this
document, marked by brackets, has been omitted and filed separately
with the Securities and Exchange Commission pursuant to Rule 406 of the Securities
Act of 1933, as amended.






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