exv10w6w5



 





Exhibit 10.6.5




	 	 	 	 	 
	 

	 	 

PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
 

	 	  






EXECUTION VERSION




FOURTH AMENDMENT TO SCHEDULE NO. 9 TO



AGREEMENT FOR CONSULTING SERVICES




     This Fourth Amendment to Schedule No. 9 to Agreement for Consulting Services (this “Schedule 9
Fourth Amendment”), effective as of April 1, 2007 (the “Schedule 9 Fourth Amendment Effective
Date”), is made and entered into by and between AOL LLC (formerly known as “America Online, Inc.”)
(“AOL”), a Delaware limited liability company, with its principal offices at 22000 AOL Way, Dulles,
Virginia 20166, and LiveWorld, Inc. (“Consultant”), a Delaware corporation, with principal offices
at 4340 Stevens Creek Boulevard, Suite 101, San Jose, California 95129 (each a “Party” and
collectively the “Parties”). All capitalized terms not otherwise defined in this Schedule 9 Fourth
Amendment shall have the meanings set forth in the Agreement for Consulting Services dated as of
May 12, 2003, by and between the Parties (the “Agreement”) and Schedule No. 9 to the Agreement,
dated as of December 7, 2004, by and between the Parties (“Schedule 9”), as amended. The Parties
wish to amend Schedule 9 as follows:



TERMS




     1. Fees. Notwithstanding anything to the contrary in Schedule No. 9 and/or any
amendments thereto, as of April 1, 2007, payments to Consultant by AOL shall be solely as follows:



	 	 	 	 	 	 	 
	 

	 	(a)
	 	Monthly Management Fee 	 	$[***]
	for management of the services as described in Schedule 9 and as amended herein.
	 
	 	 	 	 	 	 
	 

	 	(b)
	 	Monthly Minimum Moderation Fee
	 	$[***]
	for up to any combination of Standard Moderation hours, Premium Moderation hours and/or Training
hours that, at the rates described in (c), (d) and (e) multiplied by the associated number of
hours, total 	$[***].
	 
	 	 	 	 	 	 
	 

	 	(c)
	 	Standard Moderation Rate
	 	$[***]/hour
	 
	 	 	 	 	 	 
	 

	 	(d)
	 	Premium Moderation Rate
	 	$[***]/hour
	 
	 	 	 	 	 	 
	 

	 	(e)
	 	Training Rate
	 	$[***]/hour
	 
	 	 	 	 	 	 
	 	 	(f)	 	For any month in which the number of moderation hours exceeds [***], the following rates will apply:






 









 







	 	 	 	 	 
	 

	 	 

PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
 

	 	  





EXECUTION VERSION



	 	 	 	 	 	 	 
	 	 	Monthly	 	Standard	 	Premium
	Hours
	 	Management Fee	 	Moderation Rate	 	Moderation Rate
	Up to [***] Hours

	 	$[***]
	 	$[***]
	 	$[***]
	[***] to [***] Hours

	 	$[***]
	 	$[***]
	 	$[***]
	[***] to [***] hours

	 	$[***].00
	 	$[***]
	 	$[***]
	[***] to [***] Hours

	 	$[***].00
	 	$[***]
	 	$[***]
	Over [***] Hours

	 	$[***]
	 	$[***]
	 	$[***]
	 

	 	for [***]-[***]
hours; Above [***]
hours the Mgt Fees
TBD by good faith
negotiation	 	 	 	 






          (g) The above increased monthly management fees (“Increased Management Fee”) will apply only
in the event that AOL exceeds the applicable threshold level of moderation hours in a given
calendar month (“Triggering Threshold”) by more than [***]%. (For purposes of example, if AOL
increases the monthly hours from [***] hours in Month 1 to [***] hours in Month 2, the management
fee would increase to $[***] for Month 2 — and for months 3 and 4 etc. if the number of moderation
hours remained above [***]). For the avoidance of doubt, the Increased Management Fee shall then
continue to apply until the number of moderation hours in a single calendar month falls below the
Triggering Threshold.




          (h) For the above deeper discount rates for moderation hours to apply, AOL must commit (via
written notice) to the higher volume discount threshold of hours ([***],[***],[***] or [***]) for
at least one calendar month at a time and must do so [***] days prior to the beginning of the
calendar month. In the event AOL has changed the minimum threshold level (and associated discount
rate), that threshold will remain in place for the subsequent month unless AOL changes the
threshold commitment level (via written notice) at least [***] days prior to the following month
and thereby commits to a different volume level (with its associated discount rate, if any).




          (i) AOL shall provide a monthly forecast at least [***] days prior to the start of each
calendar month. In the event that AOL increases the number of monthly hours in the schedule with
less than [***] days lead time (i) Consultant will make commercially reasonable efforts to
implement the changed schedule and (ii) the additional hours in excess of a [***] percent ([***]%)
volume increase will carry the Overage Surcharge Rate (of $[***]/hr) in addition to their regular
fee rate. Consultant will not exceed the AOL scheduled number of moderation hours in a month
unless directed by AOL to do so. (For purposes of example, if AOL increases the monthly hours from
[***] standard hours in Month 1 to [***] standard hours in Month 2 on fewer than [***] days notice,
AOL




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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
 

	 	  





EXECUTION VERSION


would pay an hourly rate of $[***] for the first [***] standard hours; $[***] for the next
[***] standard hours; and $[***] for the remaining [***] standard hours in Month 2).




     2. Monthly Maximum Hours; Monthly Minimum Moderation Fee. Effective as of April 1,
2007, the following sentence fragment is hereby removed from the paragraph titled “Monthly Minimum
Moderation Fee” in Section 5(a) of Schedule No. 9: “provided that AOL shall not reduce the Monthly
Maximum Hours below [***] hours.” As of April 1, 2007, if the Monthly Maximum Hours fall below
[***] hours, it shall not be deemed a breach of the Agreement or any Schedule. If AOL reduces the
combination of moderation hours for a month to be less than would total $[***] in fees at their
above rates, AOL shall still pay Consultant the $[***]/month Minimum Moderation Fee.



     3. Rate Table. Effective as of April 1, 2007, the Monthly Minimum Moderation Fee Rate
Table in Section 5(a) of Schedule 9 is hereby deleted.



     4. Schedule Management. Effective as of April 1, 2007 Scope of Work, Section 4 of the
Agreement is hereby deleted and Scope of Work Sections 3a and 3b are hereby replaced as follows:



          (a) Consultant will provide moderation at the levels directed by AOL. Consultant will not
exceed the AOL scheduled number of moderation hours in a month unless directed by AOL to do so. As
traffic fluctuations are often volatile, sometimes in direct association with AOL promotions, AOL
may, on occasion, make Consultant aware of promotions that are expected to drive higher than usual
amounts of traffic to the boards. Consultant shall use commercially reasonable efforts to provide
increased moderation as directed by AOL.




          (b) [***]




     5. Term. The term of Schedule No. 9 shall expire [***] year after the Schedule 9
Fourth Amendment Effective Date, provided that, notwithstanding anything to the contrary in the
Agreement, or in any Schedule, or in any amendments thereto, AOL may terminate Schedule No. 9 upon
 [***] days prior written notice to Consultant. Such termination may be effective no earlier than
December 31, 2007.



     6. Wind-Down Period. Section 9.5 of the Schedule 9 shall hereby be suspended and
replaced with the following:




“Upon the expiration or earlier termination of this Agreement, consistent with the
terms of this Amendment, AOL, in it’s sole discretion, may require the Parties to



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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
 

	 	  





EXECUTION VERSION





implement a transition period of not longer than [***] months during which to ensure
that all Moderation Services are effectively transitioned to AOL or a third party
provider selected by AOL (the “Wind-Down Period”). AOL shall provide Consultant with
written notice upon any termination or expiration of the Agreement that AOL elects to
begin the Wind-Down Period and AOL may elect to terminate the Wind-Down Period at any
time upon [***] days prior written notice to Consultant. During the Wind-Down
Period, Consultant shall continue to provide the Moderation Services in accordance
with the terms of this Agreement and shall provide full cooperation to AOL and/or any
third party provider to which the Moderation Services are transitioned. AOL shall
pay to Consultant the appropriate fees during the Wind-Down Period, pursuant to terms
of this Amendment. All terms and conditions of the Agreement and this Schedule 9, as
amended, that are reasonably necessary for the Parties to fulfill their obligations
and exercise their rights during the Wind-Down Period shall survive during the
Wind-Down Period. Upon the beginning of the wind-down period, the MFN provisions as
described in Section 9 below shall no longer apply.”



     7. Order of Precedence. This Schedule 9 Fourth Amendment is supplementary to and
modifies the Agreement. The terms of this Schedule 9 Fourth Amendment supersedes provisions in the
Agreement only to the extent that the terms of this Schedule 9 Fourth Amendment and the Agreement
expressly conflict. However, nothing in this Schedule 9 Fourth Amendment should be interpreted as
invalidating the Agreement, and provisions of the Agreement will continue to govern relations
between the parties insofar as they do not expressly conflict with this Schedule 9 Fourth
Amendment.



     8. Counterparts. This Schedule 9 Fourth Amendment may be executed in counterparts,
each of which shall be deemed an original and all of which together shall constitute one and the
same document.



     9. [***]



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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
 

	 	  





EXECUTION VERSION



     IN WITNESS WHEREOF, the Parties hereto have executed this Schedule 9 Fourth Amendment as of
the Schedule 9 Fourth Amendment Effective Date.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AOL LLC	 	 	 	LIVEWORLD, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Print Name:	 	 	 	 	 	Print Name:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	 	 	Title:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	 	 	Date:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 






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