Exhibit 10.28


 


FIRST ADDENDUM TO
OVERTURE SEARCH SERVICES AGREEMENT


 


This First Addendum (the “First Addendum”) is effective as of October
1, 2002 (the “First Addendum 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,
in connection with the Overture Search Services Agreement effective as of May
1, 2002 and entered into by and between Overture and Yahoo (the “Agreement”).


 


RECITALS


 


WHEREAS, the Agreement
provides for, among other things, the delivery by Overture and the display by
Yahoo of sponsored search results in response to search queries conducted
through Yahoo’s principal, U.S. targeted directory to the World Wide Web.


 


WHEREAS, the parties
anticipate expanding their strategic relationship, such that Overture will
provide Yahoo with sponsored search results in response to search queries
conducted through other directories implemented by Yahoo across its domestic or
foreign networks, and the parties will share revenue generated from these
sponsored search results, and the parties will administer certain of these
incremental sponsored search result implementations in accordance with this
First Addendum, as further described herein.


 


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.  Capitalized
terms not defined herein have the meanings set forth in the Agreement.


 


1.1         Launch Date means the first date on which Overture
Results are publicly displayed within the applicable Yahoo Search Functionality,
as reported by Yahoo.


 


1.2         Minimum Display
Requirements means the introductory paragraph to Section 4.3 of the
Agreement (beginning “After receiving Overture Results . . .” and ending “. . .
in the Featured Sections.”) and, except for the first sentence and the last
sentence thereof, Section 4.3(a) of the Agreement.


 


1.3         [*]


 


1.4         U.S. Implementation means the current implementation of the
Overture Results on Yahoo Search, as described in the Agreement.


 


1.5         Yahoo Canada Network means the Yahoo Foreign Property that is
targeted to Canada and currently located at http://www.yahoo.ca, including but
not limited to Yahoo Canada Search, the Yahoo Foreign Verticals that target
Canada and any other Canadian targeted products or services that are developed and
branded in whole or in part by or on behalf of Yahoo or a Canadian 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 Canadian based
Yahoo Affiliate after the First Addendum 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 Canada 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.


 


1.6         Yahoo Canada Search means the Yahoo
Foreign Vertical that is the search functionality within the Yahoo Canada
Network’s principal directory to the World Wide Web, currently located at
http://www.yahoo.ca, which search functionality currently resolves either to
ca.search.yahoo.com or to ca.google.yahoo.com.


 


	
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1.7         Yahoo Canada Search Box means a graphical area substantially
similar in form to the example set forth in Exhibit B to the Agreement
that appears on web pages across the Yahoo Canada Network, including but not
limited to the front page of Yahoo Canada Search and all Yahoo Canada Search
Results Pages, through which a user can only submit a search query that is [*]
a keyword or phrase that resolves to Yahoo Canada Search.  Additionally, searches initiated by a user
clicking on the “next” button on a Yahoo Canada 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 Canada Search Results Page) and “Related Searches” (or similar
functionality) that appear below the Featured Bottom Section as shown in Exhibit
C to the Agreement will be deemed as submitted through a Yahoo Canada
Search Box.  For clarity, search boxes
that resolve to searchable directories other than [*] or successor directories
thereto (e.g., searches submitted through any Yahoo Foreign Vertical within the
Yahoo Canada Network, including but not limited to the search box that resolves
to the specialty directory within the Yahoo Canada Network’s shopping-related
property) are not Yahoo Canada Search Boxes.


 


1.8         Yahoo Canada Search Query means any search query comprised of a
keyword or phrase and initiated through the Yahoo Canada Search Box by a U.S.
User.  For clarity, search queries
initiated through means other than the Yahoo Canada Search Box (e.g., searches
initiated through any Yahoo Foreign Vertical within the Yahoo Canada Network,
including but not limited to the search box that resolves to the specialty
directory within the Yahoo Canada Network’s shopping-related property) will not
be deemed a Yahoo Canada Search Query.


 


1.9         Yahoo Canada Search Results Pages means those web pages within Yahoo Canada
Search, excluding the Jump Page, displayed in response to Yahoo Canada Search
Queries.


 


1.10   [*]


 


1.11   Yahoo Search Functionality means any search functionality within
either a Yahoo Vertical or a Yahoo Foreign Vertical and within which the
parties agree in writing to integrate the Overture Results according to this
First Addendum.


 


 


2.               Integration of Overture Results within
Yahoo Search Functionality.  The parties
agree to work together and to undertake commercially reasonable efforts to
implement the Overture Results within those Yahoo Search Functionalities upon
which the parties mutually agree in writing (each, an “Additional
Implementation”).  The parties will
undertake commercially reasonable efforts to schedule the Launch Date for an
Additional Implementation to occur [*]. 
Yahoo also will provide Overture with email notice of the Launch Date of
each Additional Implementation within [*]. 
With respect to each Additional Implementation, both parties agree to
comply with the Service Level Agreement.


 


2.1         Mock-Ups; Minimum Search Results
Characteristics; Changes.  Before the parties can agree
on the launch of a particular Additional Implementation, the parties must agree
on [*]  For clarity, the parties
acknowledge and agree that email is an appropriate medium through which to
agree on an Additional Implementation, as long as (i) the individuals who agree
via email are then employed as directors or higher by the party on behalf of
which the individual agrees (and, for individuals employed by Overture, the
individuals must be part of Overture’s Business Affairs Group); and (ii) the
email specifically states that it is an Additional Implementation pursuant to
this First Addendum and [*]


 


2.2         Suppression and Removal of Overture
Results.  The parties acknowledge and agree that (a)
each Additional Implementation might implicate different regulatory regimes,
editorial policies and user considerations than those implicated by the U.S.
Implementation; and (b) the parties will work together and adjust the circumstances
under which Overture Results are suppressed or removed accordingly.  Overture also will suppress Overture Results
that link directly to a page owned or controlled by [*]


 


2.3         Separate Feed and Reporting of each
Additional Implementation.  Overture will deliver and
Yahoo will utilize a separate and distinct feed of Overture Results for each
Additional Implementation, and Overture will account for each Additional
Implementation as a separate line item in any reports required hereunder 


 


	
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or under the Agreement.  Yahoo will provide Overture with the same
information at the time-of-search for an Additional Implementation as it does
for the U.S. Implementation, and Overture will be entitled to use and disclose
that information subject to the use and disclosure restrictions set forth in
the Agreement.


 


2.4         Wind Down of any Additional
Implementation.  Each party will be entitled to discontinue a
particular Additional Implementation upon [*] prior written notice to the other
party, except that (a) Yahoo will be entitled to discontinue a particular
Additional Implementation upon [*] prior written notice to Overture to the
extent that Yahoo elects to [*] and (b) Overture will be entitled to
discontinue a particular Additional Implementation upon [*] prior written notice
to Yahoo to the extent that Yahoo (i) has made a [*] and (ii) does not reverse
that [*] within the [*] notice period. 
Yahoo agrees that it will not present an active Additional
Implementation to Overture as part of a New Domestic Opportunity or an International
Opportunity, as applicable, for a period of no less than [*] after the Launch
Date of the active Additional Implementation. 
[*]


 


2.5         Minimum Display
Requirements and [*] for Yahoo Canada Search.  Except as set forth in Section 5.4 of the Agreement, Yahoo will send the English language
Yahoo Canada Search Query to Overture each and every time that a U.S. User
initiates a search through a Yahoo Canada Search Box. The Minimum Display Requirements will apply to this Additional
Implementation.  [*]  The parties acknowledge and agree that
(i) each Yahoo Canada Search Query (which, by definition, includes queries
typed into the Yahoo Canada Search Box and queries submitted from either the
“next” button or the “Related Searches” link on Yahoo Canada Search Results
Pages) will generate a [*] for purposes of subsection (b) above; and (ii) any
other opportunity for a third party to provide Yahoo with Restricted Search
Results for display on pages within Yahoo Canada Search constitutes an
International Opportunity under Section 7.4 of the Agreement.  [*]


 


 


3.               Payment.  Overture
will make payments to Yahoo in accordance with the following:


 


3.1         Revenue Share Payments.  With respect to each Additional
Implementation, Overture will make Quarterly revenue share payments (the
“Additional Implementation Revenue Share Payments”) to Yahoo based on Gross
Revenue earned from Bidded Clicks on the particular Additional Implementation
(the “Additional Implementation Gross Revenue”) in the applicable Quarter
according to the schedule set forth below. 
[*]  Additional Implementation
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 within the Additional
Implementations, except as specifically set forth in this First Addendum.


 


3.2         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:


[*]


 


3.3         Late Payments; Interim Additional
Implementation Payment.  Any undisputed Additional
Implementation Revenue Share Payment that is paid more than [*] late will bear
interest at the rate of [*].  With
respect to Additional Implementations launched between the Effective Date and
the First Addendum Effective Date (the “Interim Additional Implementations”),
Overture shall make a payment to Yahoo in the amount of [*] (which was derived
by deducting the [*] that Overture has already paid to Yahoo for the Interim
Additional Implementations from [*] which is the total amount due to Yahoo for
the Interim Additional Implementations during the period between the
Effective Date and the First Addendum Effective Date) prior to [*] (the “True-Up Payment”), without
applying interest hereunder.  For
clarity, provided that Overture makes the True-Up Payment in the time and in
the amount set forth in the prior sentence, Overture shall not be in breach of
this First Addendum for failure to make the True-Up Payment and no interest
shall be applied to the True-Up Payment.


 


	
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3.4         Audit Rights and Data Rights. 
Except as expressly set forth herein or as otherwise agreed by the
parties in writing, the audit rights and data rights and obligations for the
Additional Implementations will mirror the U.S. Implementation as set forth in
Sections 8.4 (including Exhibit F) and 8.5 of the Agreement.


 


3.5         No Payment Adjustments. 
The parties acknowledge and agree that the performance of each
Additional Implementation will be tracked separately from the U.S.
Implementation, and that the Additional Implementations will not be included in
the calculation of Impressions, Coverage, PPC, CTR or of adjustments to the
Estimated Yahoo Payment or the Guaranteed Fixed Payment under the Agreement.


 


4.               Term and
Termination.


4.1         Term.  This First Addendum will become effective as
of the First Addendum Effective Date and, unless terminated as set forth
herein, will remain effective for the same period as the Agreement remains
effective.


4.2         Termination
with Cause.  If, with
respect to any or all Additional Implementations, either party breaches this
First Addendum in any material respect, and that party does not cure its breach
within [*] after written notice by the non-breaching party of its breach, then
the non-breaching party will be entitled to terminate the affected Additional
Implementation(s) immediately upon written notice to the breaching party after
failure to cure within those [*]  The
parties acknowledge and agree that a breach under this First Addendum will not
affect the Agreement, regardless of whether the breach gives rise to
termination of this First Addendum.


4.3         Termination
in connection with Agreement. 
This First Addendum and all Additional Implementations comprised
hereunder will terminate to the extent that the Agreement is terminated in
accordance with its terms, effective as of the effective date of termination of
the Agreement.


4.4         Effect of
Termination.  Sections 1, 3 (with respect to payments
accrued during the Term) and 5 above will survive termination or expiration of
this First Addendum.


5.               Incorporation of Certain Provisions of the Agreement
by Reference.   Each party’s performance hereunder will be
subject to the provisions of Sections 12 – 14 and 16 of the Agreement, and
those provisions are incorporated herein by reference.  For clarity, one party’s liability to the
other party under this First Addendum will be subject to the same liability
caps set forth in Section 14 of the Agreement (i.e., this First Addendum does not
give rise to separate and distinct liability caps in the amounts set forth in
Section 14 of the Agreement).


 


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IN WITNESS WHEREOF, the parties have caused this First Addendum to be
executed by their duly authorized representatives as of the First Addendum
Effective Date.


 


 


	
  YAHOO! INC.  

  	
   

  	
  OVERTURE SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Jeff Weiner

  	
   

  	
  By:

  	
  /s/ William Demas

  
	
  Name:

  	
  Jeff Weiner

  	
   

  	
  Name:

  	
  Bill Demas

  
	
  Title:

  	
  Senior Vice President, Search and Marketplace

  	
   

  	
  Title:

  	
  Senior Vice President & General Manager,
  Affiliate Business Group

  



 


 


 


 


	
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EXHIBIT A


 


Overture Canadian Restricted Companies


 


[*]


 


	
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EXHIBIT B


 


[*]


 


[*]


 


 


	
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