In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

Q: Exhibit 99.4 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with each of the Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto and statements on Schedule 13G) with respect to the Common Stock, par value $0.01 per share of Macy's, Inc., a corporation organized under the laws of the State of Delaware, and that this agreement may be included as an exhibit to such joint filing. The undersigned acknowledge that each shall be responsible for the timely filing of any amendments, and for the completeness and accuracy of the information concerning the undersigned or contained herein and therein, but shall not be responsible for the completeness and accuracy of the information concerning the others. IN WITNESS WHEREOF, the undersigned hereby execute this agreement as of May 11, 2020. VESA EQUITY INVESTMENT S.À R.L. /s/ Marek Spurny By: Marek Spurny Title:Authorized Signatory /s/ Pascal Leclerc By: Pascal Leclerc Title:Authorized Signatory EP INVESTMENT S.À R.L. /s/ Marek Spurny By: Marek Spurny Title:Authorized Signatory /s/ Pascal Leclerc By: Pascal Leclerc Title:Authorized Signatory DANIEL KŘETÍNSKÝ /s/ Daniel Kretinsky By: Daniel Kretinsky 
Question: Highlight the parts (if any) of this contract related to Agreement Date that should be reviewed by a lawyer. Details: The date of the contract

A: May 11, 2020
****
Q: EXHIBIT 10.14

                          SOFTWARE HOSTING AGREEMENT                                          This Software Hosting Agreement (the Agreement) is entered into and effective as of the later of the two signature dates below (the Effective Date) INKTOMI CORPORATION (Inktomi), a California corporation, 1900 South Norfolk Street, Suite 110, San Mateo, California 94403, and MICROSOFT CORPORATION (Microsoft), a Washington Corporation, One Microsoft Way, Redmond, Washington 98052-6399, with reference to the facts set forth in the Recitals below.

                                   Recitals

     A.   Inktomi develops and markets computer software products, including without limitation a search engine software for searching and indexing information accessible through the Internet.

     B.   Microsoft develops, manufactures, distributes and markets computer software products and services.

     C.   Pursuant to that certain Software Development Agreement between the parties executed as of the Effective Date (the Software Development Agreement), Inktomi is customizing its Internet search engine software for Microsoft.

     D.   Microsoft desires that Inktomi host and maintain the customized search engine on servers owned by Inktomi and located at a facility selected by Inktomi in California, and Inktomi desires to provide such hosting and maintenance services, on the terms and conditions contained herein.

                                   Agreement

Accordingly, Inktomi and Microsoft hereby agree as follows:

     1.   Definitions.           -----------

          1.1  Ancillary Agreements shall mean the following agreements between Inktomi and Microsoft, and all amended versions thereof or successor agreements thereto: (i) the Software Development Agreement of even date herewith; (ii) the Information Services Agreement of even date herewith; (iii) the Loan Agreement of even date herewith, and any and all Promissory Notes and/or New Note executed pursuant thereto; (iv) the Security Agreement of even date herewith; and (v) the Escrow Agreement of even date herewith.

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

            1.2  Deployment, Hosting and Maintenance Specifications shall mean the specifications for the Services attached to this Agreement as Exhibit A, as it may be amended from time to time by mutual agreement of the parties, which agreement shall not be unreasonably withheld by either party; if and when the Deployment, Hosting and Maintenance Specifications are modified in accordance with Section 2.2 below, the parties shall initial the new Deployment, Hosting and Maintenance Specifications or amendments to the existing Deployment, Hosting and Maintenance Specifications, and immediately following the last initialing such new Deployment, Hosting and Maintenance Specifications or amendments shall automatically be deemed to supercede or supplement (as the case may be) Exhibit A.

          1.3  Hosting Servers shall mean those servers (including both the search engine cluster and the crawling cluster) and other hardware and third party software identified in the Deployment, Hosting and Maintenance Specifications that shall be used to host or service the Microsoft Search Engine and Usage Data.

          1.4  Internet means any systems for distributing digital electronic content and information to end users via transmission, broadcast, public display, or other forms of delivery, whether direct or indirect, whether over telephone lines, cable television systems, optical fiber connections, cellular telephones, satellites, wireless broadcast, or other mode of transmission now known or subsequently developed.

          1.5  Launch Date will mean that date on which the Microsoft Search Engine (other than any so-called beta version) is first generally available for use by the public.

          1.6  Microsoft Search Engine will mean those versions of the Product developed to Microsoft specifications pursuant to said Software Development Agreement and used to generate search results for Microsoft (or for third parties requesting searches through Microsoft) under said Information Services Agreement.

          1.7  Microsoft Site means the Microsoft Web Site(s) or Microsoft application(s) which, when accessed by an end user, will permit the end user to conduct a search of the Internet (or a portion thereof) using the Product; if





Microsoft sublicenses its rights to use the search results generated by the Product hereunder (as permitted under the Information Services Agreement), then the site(s) of such Microsoft sublicensee(s) will be deemed to be Microsoft Site(s).

          1.8  Product shall mean that certain customized search engine software developed by Inktomi for Microsoft pursuant to the Software Development Agreement, as more specifically described in said Software Development Agreement.

                                       2

            1.9  Security Measures shall mean those procedures and precautions described in Exhibit A, for maintaining the security of the Product and Usage Data required under this Agreement.

          1.10 Services shall mean the deployment, hosting and maintenance of the Product as described under this Agreement.

          1.11 Term means the period of time commencing on the Effective Date and continuing thereafter indefinitely until this Agreement is terminated pursuant to Section 10 below.

          1.12 Usage Data means such data as Inktomi may collect relating to the usage of (i) the Product by Microsoft and end users, and/or (ii) the Hosting Servers.

          1.13 Web means the so-called World Wide Web, containing, inter alia, Web Pages written in hypertext markup language (HTML) and/or any similar successor technology.

          1.14 Web Indexing Data means such data as Inktomi may collect relating to the documents crawled by its crawling software in connection with its operation of the Product.

          1.15 Web Page means a document on the Web which may be viewed in its entirety without leaving the applicable distinct URL address.

          1.16 Web Site means a collection of inter-related Web Pages.

     2.   Services.           --------

          2.1  Inktomi shall deploy, host and maintain the Product and Hosting Servers in accordance with the Deployment, Hosting and Maintenance Specifications and the other terms and conditions contained in this Agreement. Inktomi agrees that the Services shall be performed in a professional manner and shall be of a high grade, nature, and quality.

          2.2  The parties contemplate that there may be additions, deletions or other changes which may affect the Deployment, Hosting and Maintenance Specifications from time to time during the Term. Subject to Sections 2.2.1 through 2.2.3 below, any such additions, deletions or other changes to the Deployment, Hosting and Maintenance Specifications shall be mutually agreed to by Inktomi and Microsoft. Upon such mutual agreement (or, if mutual agreement is not required, upon notice of any such changes desired by Microsoft), Inktomi shall alter the Services in order to accommodate the revised Deployment, Hosting and Maintenance Specifications.

                                       3

                 2.2.1  Inktomi and Microsoft will confer not less frequently than monthly regarding the appropriate size (including hardware requirements) and capacity of the Hosting Server cluster, and Inktomi will supply all available and relevant usage data it may have; Microsoft will specify its capacity desires, and, notwithstanding anything contained herein to the contrary, any and all changes in capacity (including without limitation, number of Hosting Servers and connectivity capacity) requested by Microsoft shall be deemed acceptable to Inktomi, and Inktomi shall conform to such new capacity requirements in accordance with the timetable specified by Microsoft.

               2.2.2  Inktomi will deploy the capacity requested by Microsoft hereunder within the timeframe specified in the Deployment, Hosting and Maintenance Specifications, or as otherwise may be agreed by Microsoft and Inktomi at such time.

               2.2.3  At each monthly conference referred to above in Section 2.2.1, Inktomi will state its good faith estimate of the hardware and capacity needs for itself and its other customers. At its sole cost and expense, Inktomi promptly will provision for such hardware and capacity needs, and supply Microsoft with a list of the hardware provisioned and an officer's certification that Inktomi has made such provisions. Upon Microsoft's request (but not more often than twice in any calendar year), Inktomi will supply Microsoft with documentation evidencing such provisioning.

          2.3  In accordance with its performance of the Services, Inktomi may collect and/or possess Web Indexing Data and Usage Data.

               2.3.1  As between Inktomi and Microsoft, Inktomi will own all rights in and to Web Indexing Data. However, Inktomi will provide Microsoft with access to the Web Indexing Data solely for purposes of managing, marketing and promoting the Microsoft Search Engine.

               2.3.2  All Usage Data shall be owned jointly by Microsoft and





Inktomi, and Inktomi hereby irrevocably assigns to Microsoft an [*] interest therein. However, Inktomi shall not have the right to share any of such Usage Data with third parties (except that Inktomi may include Usage Data as part of gross undifferentiated data which it shares with other search engine customers but does not indicate as Usage Data related to the Microsoft Search Engine).

          2.4  Inktomi shall provide to Microsoft all reports described in the Deployment, Hosting and Maintenance Specifications, in accordance with the terms therein.

                                       4

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

            2.5  Inktomi shall strictly adhere to all Security Measures in performing the Services, including without limitation securing the Usage Data, which it may possess or have under its control from time to time, from unauthorized access and modification.

          2.6  Microsoft will have the right, in its sole and absolute discretion, to require Inktomi to devote a separate cluster of Hosting Servers to servicing Microsoft hereunder, which Servers would not be used to service any needs of Inktomi and/or any third parties. The Hosting Servers purchased by Inktomi at Microsoft's request hereunder would be re-deployed to such separate cluster.

               2.6.1  If Microsoft notifies Inktomi in writing that it desires such a separate cluster, Microsoft shall reimburse Inktomi for all actual, direct expenses incurred and paid by Inktomi for equipment (other than Hosting Servers, which shall be purchased by Inktomi with financing loaned by Microsoft as set forth elsewhere herein) and services of necessary subcontractors (but not services of Inktomi employees) required to create and set up such separate cluster, but Microsoft's obligations to make any payments to Inktomi pursuant to clause (a) of Section 4.1 below will cease and terminate effective on the date such separate cluster becomes operational.

               2.6.2  Nothing contained in this Agreement will be deemed to require Microsoft to deploy the Product in Hosting Servers owned by Inktomi, or to require Microsoft to continue to utilize Inktomi's services to host the Product at any time during the Term; without limitation, Microsoft will have the right to deploy the Product, in whole or in part, at other site(s) (whether owned by Microsoft or third parties) during the Term. If Microsoft elects to deploy and operate the Product at other sites, Inktomi will take all steps necessary or appropriate to facilitate such other deployment and operation; without limitation, Inktomi will move any and all Hosting Servers to any location(s) designated by Microsoft (costs of relocation, including shipping and insurance, to be borne exclusively by Microsoft), and Inktomi will provide training to Microsoft personnel and/or others designated by Microsoft to enable them to satisfactorily operate and maintain the Product and Hosting Servers wherever located. Notwithstanding anything to the contrary contained in this Agreement, Microsoft will not be obligated to make any payments to Inktomi pursuant to clauses (a), (e) and/or (f) of Section 4.1 below if Microsoft exercises its rights to move the Hosting Servers under this Section 2.6.2.

          2.7  Inktomi will assign two (2) full-time Inktomi employees exclusively dedicated to maintenance duties hereunder. Such employees are identified in Exhibit D attached hereto; and their replacements shall be subject to Microsoft's prior written approval (which approval Microsoft will not unreasonably withhold). Notwithstanding the foregoing, if Microsoft and Inktomi mutually agree in writing, additional Inktomi employees may be required to be assigned to maintenance duties hereunder.

                                       5

            2.8  Microsoft acknowledges that Inktomi has customized and provided, and will continue to customize and provide, its software and technology to other parties for use in connection with a variety of applications, including search engine applications. Except as may be expressly provided to the contrary elsewhere in this Agreement, nothing in this Agreement will be deemed to (i) limit or restrict Inktomi from customizing and providing its software and technology to other parties for any purpose, including in connection with search engine applications, or (ii) in any way affect the rights granted to such other parties. Microsoft further acknowledges that in addition to utilizing the Hosting Servers to host the Product, Inktomi may also use the Hosting Servers to service its own needs and the needs of other third parties, unless Microsoft elects to use a separate cluster in accordance with Section 2.6 above (it being understood that Inktomi will estimate the capacity for servicing the needs of itself and its other customers in good faith and provision accordingly, in accordance with Section 2.2).

     3.   Hosting Servers.           ---------------

          3.1  Inktomi shall own all new Hosting Servers purchased by Inktomi pursuant to Microsoft's request hereunder.

               3.1.1  To the extent Inktomi is required to do so in order to meet Microsoft's capacity requests under the Deployment, Hosting and Maintenance Specifications (as the same may change from time to time), Inktomi shall purchase new Hosting Servers. Prior to purchasing any such new Hosting Servers, Inktomi will seek bids from third parties, copies of which Inktomi will provide





to Microsoft, and Microsoft will have the right to approve all such purchases and the applicable purchase prices. Inktomi shall use commercially reasonable efforts to minimize the purchase prices of such new Hosting Servers, but in any event such purchase prices will not be more than any comparable equipment purchased by Inktomi during the same time frame. Inktomi will consult with Microsoft regarding the proposed purchase prices of all new Hosting Servers prior to purchasing the same, and if Microsoft is aware of a vendor who is willing to sell Hosting Servers to Inktomi at a lower purchase price than as proposed by Inktomi, Inktomi agrees to purchase the applicable new Hosting Servers from such vendor.

               3.1.2  Notwithstanding Section 3.1.1 above, Inktomi shall have no obligation whatsoever to purchase any new Hosting Servers unless Microsoft loans Inktomi an amount equal to the purchase price thereof pursuant to the Loan Agreement between Inktomi and Microsoft of even date herewith (the Loan Agreement).

          3.2  Microsoft acknowledges that, pursuant to Inktomi's contractual arrangement with its subcontractor, Exodus Communications, Inc. (Exodus), Inktomi will locate the Hosting Servers at the facilities of Exodus, and Exodus will provide power and Internet telecommunications services to the Hosting Servers. However, Microsoft will have no obligations or liabilities to Exodus, Inktomi will remain liable for providing all

                                       6

  Services to Microsoft notwithstanding its arrangement with Exodus, and Inktomi will [*] and [*] against from any and all [*] to [*] (in accordance with the procedures specified in Section [*] below). A copy of the contract(s) between Inktomi and Exodus is/are attached hereto as Exhibit [*], and Inktomi shall not modify said contract(s) or replace Exodus as its subcontractor for the applicable services (including without limitation by having Inktomi perform the Services directly) without Microsoft's prior written approval (which approval Microsoft agrees to not unreasonably withhold). Inktomi shall provide Exodus with a copy of the Security Measures applicable under this Agreement and will use commercially reasonable efforts to ensure that Exodus strictly adheres to all such Security Measures.

          3.3  Subject to Microsoft's rights under Section 2.6.2 above and/or the Security Agreement between Inktomi and Microsoft of even date herewith, executed in accordance with the Loan Agreement, Microsoft shall not have any access to the Hosting Servers, except as follows: (i) Microsoft will have electronic read-only access to real time system data on the status of the usage, accessibility and performance of the Microsoft Search Engine (via software developed by Inktomi in consultation with Microsoft), and (ii) Microsoft will have the right, upon reasonable notice and during normal business hours, to have representatives escorted by Inktomi employees tour the premises where the Hosting Servers are located as necessary to ensure Microsoft's satisfaction with the operation of the physical plant and equipment. Microsoft agrees to comply with the Security Measures at all times when accessing the Hosting Servers as permitted hereunder.

     4.   Payment For Services.           --------------------

          4.1  As full and complete compensation for the Services, Microsoft shall pay to Inktomi the following monthly fees:

               (a)  beginning with the Launch Date, the sum of [*] [*] Dollars ($[*]) (attributable to the use during the Term of the Hosting Servers owned by Inktomi as of the Effective Date), provided that in no event will Microsoft be obligated to make more than [*] ([*]) monthly payments pursuant to this clause (a), and if the Term extends beyond [*] years after the Launch Date, this clause (a) will be deemed deleted from this Agreement effective on the [*] anniversary of the Launch Date notwithstanding anything to the contrary contained herein;

               (b)  an amount equal to [*] ([*]) of the [*], [*], [*], [*] thereon, incurred by Inktomi to purchase each new Hosting Server required to service Microsoft's needs in accordance with Section 3.1 above (attributable to the use during the Term of such new Hosting Servers); such payments will commence with respect to each new Hosting Server at such time as Inktomi's repayment obligations begin with respect to such new Hosting

                                       7

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

  Server pursuant to the Loan Agreement and the applicable Promissory Note. Notwithstanding section 4.2 below, such payments shall be due in immediately available funds on the first business day of each month. The parties acknowledge that the monthly fee under this clause (b) will increase throughout the Term if and to the extent that Microsoft's Hosting Server requirements increase, but, notwithstanding anything contained herein to the contrary, no amounts shall be payable under this clause (b) attributable to any Hosting Server which is more than [*] years old;

               (c)  an amount equal to the [*] and [*] of the new Hosting Servers purchased by Inktomi pursuant to Section 3.1 above ([*] any amounts paid by Inktomi to Exodus for such services or attributable to the employees referred to in clause (f) below), payable if and when Inktomi pays such maintenance





costs; Inktomi will use its commercially reasonable efforts to ensure that the annual hardware and software maintenance costs for each such new Hosting Server are not more than [*] percent ([*]%) of the purchase price of such New Hosting Server, and Microsoft will not be obligated to pay higher maintenance costs than such [*]% annual estimate without its prior written consent;

               (d)  an amount equal to [*] Percent ([*]%) of the sum of the amounts payable under clauses (b) and (c) above (attributable as Inktomi's management fee for providing the Services);

               (e)  an amount equal to Microsoft's [*] of the [*] [*] by Inktomi to Exodus in connection with the applicable Hosting Servers cluster, computed in accordance with Exhibit [*], [*] the [*] new Hosting Servers are [*] at Exodus; and

               (f)  an amount equal to [*] per month per person identified in Section 2.7 above, [*] of the new Hosting Servers.

In addition, if the number of ADH (as defined in the Software Development Agreement and Information Services Agreement) should exceed the capacity requested by Microsoft, or if Inktomi's usage of its estimated capacity requirements should exceed its estimates as communicated to Microsoft in accordance with Section 2.2.1 above, then Microsoft's applicable payment(s) hereunder will be [*] in [*] with the [*] set forth in Exhibit [*] hereto.

          4.2  Except as set forth in Section 4.1(b) above, Inktomi shall supply to Microsoft written invoices for all amounts due under this Agreement, and payments will be due net [*] ([*]) days from Microsoft's receipt of such invoice. Inktomi shall bear sole responsibility for all expenses incurred in connection with the performance of the Services, unless otherwise set forth herein or agreed to in writing by Microsoft.

                                       8

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

            4.3  Inktomi shall keep true and accurate books and records, in accordance with Generally Accepted Accounting Principles (GAAP), relating to all costs and expenses for which Inktomi is entitled to charge Microsoft pursuant to Section 4.1 above, throughout the Term and for eighteen (18) additional months thereafter. Inktomi will permit Microsoft to have access to, and to make copies of, all such books and records for purposes of auditing and verifying such costs and expenses, provided that Microsoft shall give Inktomi reasonable notice prior to each requested audit and shall perform such audit during normal business hours at Inktomi's office(s) where such records are normally kept. If any Microsoft audit should determine that Inktomi overcharged Microsoft by an amount of [*]% or more for the period audited, then in addition to any and all other rights and remedies Microsoft may have under the circumstances, Microsoft may require Inktomi to reimburse it for all costs it incurred relating to such audit.

          4.4  Taxes.                -----

               4.4.1  All amounts to be paid by Microsoft to Inktomi herein are exclusive of any federal, state, local, municipal or other governmental taxes, including, without limitation, taxes based on, imposed on or measured by net or gross income or receipts, franchise taxes, taxes on doing business, capital stock taxes (including any minimum taxes and taxes measured by any item of tax preference), sales, use, excise, property, withholding or similar taxes, duties, levies, fees, excises or tariffs (all such taxes and other charges collectively Taxes) now or hereafter imposed on Inktomi under applicable law (the Inktomi Taxes). Microsoft is not liable to Inktomi for any Taxes incurred in connection with this Agreement, unless they are (i) owed by Microsoft under applicable law solely as a result of entering into this Agreement (ii) are based solely upon the amounts payable under this Agreement, and (iii) are required to be collected from Microsoft by Inktomi under applicable law, provided, however, that solely with respect to sales tax or use tax payable to those taxing jurisdictions that impose sales or use taxes under applicable law upon the vendor, rather than the purchaser, clause (i) above shall be modified to provide sales taxes or use taxes that are owed by Inktomi under applicable law solely as a result of entering into this Agreement and clause (iii) shall be modified to provide are permitted to be collected from Microsoft by Inktomi under applicable law. (Such Taxes as are described in clauses (i), (ii) and (iii) above, the Invoiced Taxes.) The Invoiced Taxes shall be stated separately as applicable on Inktomi's invoices and shall be remitted by Microsoft to Inktomi. Inktomi shall promptly provide to Microsoft official tax receipts indicating that such Invoiced Taxes have been collected by Inktomi. Microsoft may provide to Inktomi an exemption certificate acceptable to Inktomi and to the relevant taxing authority (including without limitation a resale certificate) in which case Inktomi shall not collect the Taxes covered by such certificate. Inktomi agrees to take such steps as are reasonably requested by Microsoft to minimize such Invoiced Taxes in accordance with all relevant laws and to reasonably cooperate with and assist Microsoft, at Microsoft's request, in challenging the validity of any Invoiced Taxes or other Taxes paid directly by Microsoft to the relevant taxing authority. Inktomi shall indemnify and hold Microsoft

                                       9

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO





THE OMITTED PORTIONS.

  harmless from any Taxes, penalties, interest, or additions to tax arising from amounts paid by Microsoft to Inktomi under this Agreement that are asserted or assessed against Microsoft to the extent such amounts are related to Invoiced Taxes paid to Inktomi by Microsoft under this section. Other than the Invoiced Taxes, all Inktomi Taxes shall be the responsibility of Inktomi and may not be passed on to Microsoft. Inktomi takes full responsibility for all such Inktomi Taxes, including penalties, interest and other additions thereon and agrees to indemnify, defend and hold Microsoft harmless from any claims, causes of action, costs (including without limitation, reasonable attorneys' fees), penalties, interest charges and other liabilities of any nature whatsoever associated therewith. All Taxes that are imposed on Microsoft under applicable law (the Microsoft Taxes) shall be the responsibility of Microsoft and may not be passed on to Inktomi. Microsoft takes full responsibility for all such Microsoft Taxes, including penalties, interest and other additions thereon and agrees to indemnify, defend and hold Inktomi harmless from any claims, causes of action, costs (including without limitation, reasonable attorneys' fees), penalties, interest charges and other liabilities of any nature whatsoever associated therewith.

          4.4.2  In the event that Taxes are required to be withheld on payments made hereunder by any U.S. (state, local or federal) or foreign government, Microsoft may deduct such Taxes from the amount owed Inktomi and pay them to the appropriate taxing authority. Microsoft shall in turn promptly secure and deliver to Inktomi an official receipt for any Taxes withheld. Inktomi may provide to Microsoft an exemption certificate acceptable to Microsoft and to the relevant taxing authority (including without limitation a resale certificate) in which case Microsoft shall not collect the Taxes covered by such certificate. Microsoft agrees to take such steps as are reasonably requested by Inktomi to minimize such Taxes in accordance with all relevant laws and to reasonably cooperate with and assist Inktomi, at Inktomi's request, in challenging the validity of any such Taxes.

          4.4.3  Inktomi agrees and acknowledges that it will be responsible for all of its federal and state taxes, withholding, social security, unemployment and other related taxes, insurance, and other benefits, and all salaries, benefits, and other costs of its employees.

     5.   Ownership of the Product. The parties respective rights in and to the           ------------------------                                               Product will be as set forth in the Software Development Agreement and the Information Services Agreement of even date herewith, and nothing contained in this Agreement shall be deemed to modify such rights allocation.

  6.      Confidentiality.           ---------------

     6.1  The parties hereby agree that all terms and conditions of that certain Microsoft Corporation Non-Disclosure Agreement between them dated March 18, 1997, shall govern the disclosure of confidential and proprietary information made under this

                                       10

  Agreement. In this connection, the parties hereby agree that the terms of this Agreement shall be treated as confidential in accordance with the terms of said Non-Disclosure Agreement.

          6.2  Without having first sought and obtained Microsoft's written approval (which Microsoft may withhold in its sole and absolute discretion), Inktomi shall not, directly or indirectly, (i) trade upon this transaction or any aspect of Inktomi's relationship with Microsoft, or (ii) otherwise deprecate Microsoft technology.

          6.3  Inktomi shall use its reasonable commercial efforts to cause Exodus to execute a non-disclosure agreement with Microsoft which includes substantially similar restrictions as are contained herein.

          6.4  Neither party will issue any press release or make any public announcement(s) relating in any way whatsoever to this Agreement or the relationship established by this Agreement without the express prior written consent of the other party. However, the parties acknowledge that this Agreement, or portions thereof, may be required under applicable law to be disclosed, as part of or an exhibit to a party's required public disclosure documents. If either party is advised by its legal counsel that such disclosure is required, it will notify the other in writing and the parties will jointly seek confidential treatment of this Agreement to the maximum extent reasonably possible, in documents approved by both parties and filed with the applicable governmental or regulatory authorities. Notwithstanding the foregoing, Microsoft and Inktomi will cooperate to create a mutually approved joint press release regarding the non-confidential aspects of this Agreement, which press release shall be issued by each party on the Launch Date; provided, however, that the precise timing of such press release shall be subject to the approval of Microsoft (in its sole and absolute discretion).

     7.   Representations and Warranties.           ------------------------------

          7.1  Microsoft warrants and represents that it has the full power to enter into this Agreement and perform its obligations hereunder.

          7.2  Inktomi warrants and represents that:





               7.2.1  It has the full power to enter into this Agreement and perform its obligations hereunder, and Inktomi's performance of such obligations will not violate any terms and conditions of other agreements entered into by Inktomi with [*] ([*]);

               7.2.2  Inktomi's [*] and [*] of the Product shall [*] to the [*] and [*],                                        11

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

  provided, however, that a [*] and [*] to so [*] will not be [*] to be a [*] hereunder; and

               7.2.3  Notwithstanding any [*] to [*] hereunder, or to any other [*], Inktomi shall remain [*] for the [*] hereunder in accordance with [*].

     8.   Indemnification.           ---------------

          8.1  Each party shall, at the expense of such party (the Indemnifying Party) and at the request of the other party (the Indemnified Party), defend [*] party claim or action brought against the Indemnified Party, and/or the [*] and [*] which, [*], (i) would constitute a [*] of [*], [*] or [*] made by the Indemnifying Party under this Agreement; or (ii) would [*] of the Indemnifying Party's [*]; and the Indemnifying Party will [*] and [*] the Indemnified Party [*] and [*], [*] and [*] incurred by the Indemnified Party, including but [*] to [*] of [*] and [*], that are attributable to such claim. The Indemnified Party shall: (x) provide the Indemnifying Party reasonably prompt notice in writing of any such claim or action and [*] the Indemnifying Party, through counsel [*] to Microsoft and Inktomi, to [*] and [*] such claim or action; and (y) provide the Indemnifying Party [*], [*] and [*] at the [*] Party's [*], to [*] the Indemnifying Party to [*] such claim or action. The Indemnifying Party will [*] for [*] made by the [*] Party without the [*] Party's [*], which [*] will [*].

          8.2  The Indemnified Party shall have the right to employ separate counsel and participate in the defense of any claim or action. The Indemnifying Party shall reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date hereof, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands, or actions, in respect to any damages related to any claim or action under this Section 8.

          8.3  The Indemnifying Party may [*] any claim or action under this Section 8 on the Indemnified Party's behalf [*] the [*], which [*] will [*]. In the event Microsoft and Inktomi agree to settle a claim or action, the each party agrees not to publicize the settlement without first obtaining the other party's written permission, which permission will not be unreasonably withheld.

                                       12

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

            9.   LIMITATION OF LIABILITY. EXCEPT FOR [*] CAUSED BY A [*] OF                ----------------------- SECTION [*], NEITHER PARTY SHALL BE [*] (IN [*] WITH OR PURSUANT TO THIS AGREEMENT AND THE ANCILLARY AGREEMENTS TAKEN AS A WHOLE) FOR ANY [*], [*] OR [*] [*] (INCLUDING [*]) [*] OF [*] ([*]) [*] OF THE [*] OF [*], EVEN IF [*] HAD BEEN [*] OF THE [*] OF SUCH [*].        10.  Termination and Other Remedies.           ------------------------------

          10.1 Inktomi may terminate this Agreement without cause upon one year's prior written notice, provided that such notice may not be given prior to the second anniversary of the Launch Date.

          10.2 Microsoft may terminate this Agreement at any time without cause upon [*] ([*]) days prior written notice. Upon receipt of such notice, Inktomi will discontinue all work hereunder. If Microsoft terminates this Agreement without cause pursuant to this Section 10.2, then Microsoft will pay for all services provided by Inktomi up until the date of termination under this Section 10.2. Notwithstanding anything contained herein to the contrary, should Microsoft exercise its termination right pursuant to this Section 10.2, then Inktomi will have the right to elect, in writing within fifteen (15) days after receipt of Microsoft's notice of termination hereunder, either one of the following two options for a early termination penalty:

                (a)   Inktomi may require Microsoft to pay to Inktomi, in  [*] immediately following the effective termination date, an amount equal to [*] ([*]) of all outstanding principal, interest and other amounts owed or owing to Microsoft by Inktomi on the date of termination under the Loan Agreement (and outstanding Promissory Notes issued thereunder); or

               (b)    Inktomi may deliver that portion of the Collateral (as defined in the Loan Agreement) which was purchased with Advances evidenced by the then-outstanding Promissory Notes (as defined in the Loan Agreement) (the Returned Collateral) to Microsoft, and assign all right, title and interest in





and to said Returned Collateral to Microsoft, and promptly upon such delivery and assignment Inktomi may require Microsoft to pay to Inktomi, in [*]  immediately following the effective date of termination, an amount equal to [*] ([*]) of all outstanding principal, interest and other amounts owed or owing to Microsoft by Inktomi on the date of termination under the Loan Agreement (and outstanding Promissory Notes issued thereunder); provided, however, that the following conditions must be satisfied for Inktomi to be entitled to elect this alternative (b)-

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            (i)    Inktomi then owns all of the Returned Collateral and has [*]      the Returned Collateral [*], and [*] other than Lender;

          (ii)   Inktomi obtains any [*] reasonably required by Microsoft from      Inktomi's [*];

          (iii)  the Returned Collateral is returned in good condition and      repair, without any waste or unusual or unreasonable depreciation of      Returned Collateral;

          (iv)   Inktomi has not committed any act for which any portion of the      Returned Collateral might be confiscated by any governmental or private      entity;

          (v)    Inktomi has paid all taxes, assessments or similar obligations      affecting the Returned Collateral that are then due or have then accrued;

          (vi)   Inktomi [*] to Microsoft [*] that [*] of the [*] is [*] and      [*]; and

          (vii)  Inktomi, [*], arranges to deliver the Returned Collateral in a      manner and to a location designated by Microsoft.

In the event Inktomi elects this alternative (b), the Security Agreement executed in connection with the Loan Agreement shall terminate on the business day immediately following the date of delivery and assignment of all the Returned Collateral to Microsoft.

          10.3   Subject to Section 12.9 below, in the event the Microsoft Search Engine is inaccessible to Microsoft, due to a problem other than one with Microsoft's servers or the telecommunication line from Microsoft to the Hosting Servers, for twenty-four (24) consecutive hours, or for forty-eight (48) hours or more in any seventy-two (72) hour period, or for seventy-two (72) hours or more in any one week period, and such inaccessibility is due to any reason other than Microsoft's breach of its obligations under this Agreement, then Microsoft may suspend performance and/or terminate this Agreement immediately with no further obligation.

          10.4   Microsoft may suspend performance and/or terminate this Agreement immediately upon written notice at any time if:

                 (a)  Inktomi is in [*] of this Agreement (excluding Section [*]) and fails to cure that breach within [*] ([*]) days after written notice thereof; or

                 (b)  Inktomi is in material breach of Section [*]; or

                                       14

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                   (c)  Inktomi becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency; or suffers or permits the commencement of any form of insolvency or receivership proceeding; or has any petition under any bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing; or has a trustee or receiver appointed for its business or assets or any part thereof.

          10.5   Inktomi may suspend performance and/or terminate this Agreement immediately upon written notice at any time if:

                 (a)  Microsoft is in [*] of this Agreement (excluding Section [*]) and fails to cure that breach within [*] ([*]) days after written notice thereof; or

                 (b)  Microsoft is in material breach of Section [*]; or

                 (c)  Microsoft becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency; or suffers or permits the commencement of any form of insolvency or receivership proceeding; or has any petition under any bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing; or has a





trustee or receiver appointed for its business or assets or any part thereof.

          10.6   If Inktomi is in material breach of this Agreement, then Microsoft will have the right to withhold payment of amounts otherwise owed by Microsoft to Inktomi pursuant to this and/or any Ancillary Agreement; provided, however, that Microsoft shall give Inktomi not less than [*] ([*]) days to cure such breach prior withholding any such payments.

          10.7   A breach of this Agreement by either party will also constitute a breach by such party of each and every Ancillary Agreement; and a breach by either party of any Ancillary Agreement will also consitute a breach of this Agreement by such party.

          10.8   In the event of termination or expiration of this Agreement for any reason, Sections 1, 2.3, 4.3, 4.4, 5, 6.1, 7, 8, 9 and 12 shall survive termination. Except as otherwise expressly provided in this Agreement, Inktomi shall turn over to Microsoft all work in progress, software, and any other materials provided by Microsoft to Inktomi under this Agreement promptly following termination or expiration. Neither party shall be liable to the other for damages of any sort resulting solely from such party terminating this Agreement in accordance with its terms.

                                       15

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            10.9   The rights and remedies given to the parties under this Section 10 are in addition to any other rights and/or remedies that the parties may have under the circumstances, all of which are expressly reserved.

     11.  International Deployment, Hosting & Maintenance Obligations of           -------------------------------------------------------------- Inktomi. Microsoft will have the right to require Inktomi to purchase new - ------- Hosting Servers, and/or to arrange for and perform such deployment, hosting and maintenance services, as Microsoft may determine in connection with international versions of the Product throughout the Term, on the same terms and conditions as applicable hereunder with respect to the original version of the Product directed toward the U.S. market, including without limitation requiring Inktomi to establish, deploy and maintain a cluster of Hosting Servers anywhere in the world (including [*]) designated by Microsoft. If and when Microsoft requires such undertakings by Inktomi, it will so notify Inktomi in writing, whereupon Inktomi will perform such undertakings as requested as expeditiously as reasonably possible.

     12.  Miscellany.           ----------

          12.1   Neither party shall represent itself as the agent or legal representative of the other for any purpose whatsoever, and neither party shall have the right to create or assume for the other any obligation of any kind. This Agreement shall not create or be deemed to create an agency, partnership, franchise, employment relationship or joint venture between the parties. Each party's employees who perform services related to this Agreement shall remain under the exclusive direction and control of their respective employer and shall receive such salaries, compensation and benefits as their respective employer may from time to time determine. Each party shall have full and sole responsibility for its employees who perform any service related to this Agreement with regard to compliance with all applicable laws, rules and regulations governing such party relating to employment, labor, wages, benefits, taxes and other matters affecting its employees.

          12.2   Any notice required or permitted to be given under this Agreement shall be made in writing and shall be deemed to have been given or made if it is in writing and is: (i) delivered in person, (ii) sent by same day or overnight courier, (iii) mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the party at its address set forth below or at such other address as such party may subsequently furnish to the other party by notice hereunder, or (iv) delivered by facsimile, the transmittal of which shall be confirmed by a telephone call to the other party and by dispatch of a confirming copy of the transmittal by registered or certified mail, postage prepaid. Notices will be deemed effective on the date of delivery in the case of personal delivery, or three (3) business days after mailing, or on the date of dispatch in the case of notification by facsimile (assuming confirmation of transmission). The parties' addresses for purposes of notice shall be as set forth above, provided that all notices to Inktomi shall be sent to the

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  attention of General Counsel; and all notices to Microsoft shall be sent to the attention of Shirish Nadkarni, with a copy to: Law & Corporate Affairs, U.S. Legal.

          12.3   This Agreement shall be construed, enforced, performed and in all respects governed by and in accordance with the laws in the State of Washington. In any action or suit to enforce any right or remedy under this





Agreement the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.

          12.4   In the event any provision of this Agreement is rendered null, void or otherwise ineffective, then (i) the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent of the unenforceable provision and (ii) notwithstanding, and regardless of whether the parties reach agreement after the good faith negotiations described in clause (i) immediately above, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall remain in full force and effect. Section and all other headings used herein are provided for convenience only and are not to be given any legal effect or considered in interpreting any provision of this Agreement. No provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision.

           12.5  Except as expressly permitted hereunder or in Exhibit F hereto, neither party may transfer, assign or sublicense this Agreement, or any rights or obligations hereunder, whether by contract or by operation of law, except with the express written consent of the other party, and any attempted transfer, assignment or sublicense by a party in violation of this Section shall be void. For purposes of this Agreement, an transfer under this Section shall be deemed to include, without limitation, the following: (a) a merger or any other combination of an entity with another party (other than a reincorporation of Inktomi from the State of California to the State of Delaware), whether or not the entity is the surviving entity; (b) any transaction or series of transactions whereby a third party acquires direct or indirect power to control the management and policies of an entity, whether through the acquisition of voting securities, by contract, or otherwise; (c) in the case of Inktomi, the sale or other transfer of Inktomi's search engine business or any other substantial portion of Inktomi's assets (whether in a single transaction or series of transactions), or (d) the transfer of any rights or obligations in the course of a liquidation or other similar reorganization of an entity (other than a reincorporation of Inktomi from the State of California to the State of Delaware). Neither party will unreasonably withhold or delay its consent to a requested transfer, assignment or sublicense. Subject to the provisions of this Section, this Agreement shall be binding upon and inure to the benefit of each party and their respective successors and assigns.

          12.6   All rights and obligations of the parties hereunder are personal to them. Except as otherwise specifically stated herein, this Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.

                                       17

            12.7   Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement.

          12.8   No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof or thereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

          12.9   Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder during any event of force majeure.

          12.10  The parties acknowledge that there may be instances during the Term when, notwithstanding the Non-Disclosure Agreement referred to in Section 6.1 above, Inktomi will not wish to disclose or have Microsoft become aware (through inspection or otherwise) of certain confidential and proprietary information of Inktomi relating to its business and/or technology. In those instances, the parties agree to work together in a spirit of cooperation to work around such disclosure so that Inktomi is able to perform the Services to Microsoft's reasonable satisfaction and otherwise discharge its obligations under this Agreement without making such disclosure.

          12.11  This Agreement, along with the Ancillary Agreements, together contain the entire agreement of the parties with respect to the premises, and may not be modified or amended except by a written instrument executed by the party sought to be charged or bound thereby.

     13.  Insurance. Inktomi will maintain insurance (including but not limited           --------- to liability and property insurance covering the Hosting Servers and Inktomi's operation thereof) in accordance with the requirements set forth in the Software Development Agreement and Loan Agreement between the parties of even date herewith. Executed as of the Effective Date on the signature dates below.

INKTOMI CORPORATION                         MICROSOFT CORPORATION       /s/ DAVID C. PETERSCHMIDT                   /s/ LAURA JENNINGS  By: _________________________               By: _________________________   David C. Peterschmidt, CEO                  Laura Jennings  ______________________________              ______________________________ (printed name and title)                      (printed name and title)





            July 24                                      7/27 Date: ____________________, 1997            Date: ____________________, 1997

                                       18

                                     EXHIBIT A

   DEPLOYMENT, HOSTING AND MAINTENANCE SPECIFICATIONS AND SECURITY MEASURES                                                                                                                                                           (32 pages follow)

                                     EXHIBIT A                                    ---------

YUKON REQUIREMENTS FOR THE INKTOMI SEARCH SERVICE MICROSOFT CONFIDENTIAL - --------------------------------------------------------------------------------

VERSION:            1.0 STABILITY:          High FILENAME:           Yukon requirements for Inktomi search service.doc DATE:               07/07/97 3:57 PM AUTHOR(S):          William Jones   wjones

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                                 Table of Contents

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  1.   OVERVIEW ================================================================================

The goal of this document is to provide a reasonably complete list of Yukon requirements for the Inktomi search service.  Note that a number of the requirements in this document are met by the existing search service but are included anyway for the sake of completeness.

The Section 2 lists all requirements according to area (Performance and Scalability, Reliability and Fault Tolerance, ...) together with information on Target Release and Due Date as defined below.  The Appendix (Section 7) follows a similar organization and provides more detail on the requirements..

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                                     EXHIBIT B

                    CONTRACT(S) BETWEEN INKTOMI AND EXODUS

                                     EXHIBIT C

                            PRO-RATION METHODOLOGY

ALLOCATION OF EXODUS OPERATING COSTS

Exodus charges a monthly fee for facility space, fire suppression, air     conditioning, security, electricity, support services and Internet    connectivity. Inktomi is obliged to contract for this capacity in advance.    The connectivity is currently itemized and charged at a current rate of    [*].

[*] will be according to the [*] provisioned.

Example: [*] - [*] per day, [*] per day [*]. [*] of Exodus charges, [*] of    Exodus charges [*].

[*] will be charged to [*] only for their share of [*]

Current estimate is that [*]; this would be [*].

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                                     EXHIBIT D

                         INKTOMI MAINTENANCE EMPLOYEES

                                  [*] and [*]

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                                     EXHIBIT E

                          OVER-UTILIZATION ADJUSTMENT

In the event that one party under-provisions its portion of the shared Inktomi hosting cluster such that its [*] are [*] by the [*], there will be a charge on a [*] levied against the under-provisioned party.

If [*] for a [*] exceeds its agreed capacity provisioning (as determined in accordance with Sections 2.2 and 2.8, then Microsoft's [*] will be [*] ([*] if the [*] is by [*], or [*] if such [*] is by [*]) in accordance with the following computation: [*] the [*] ([*]) times the [*] of the provisioned capacity ([*]). Note that the over-utilization could apply to [*] in any [*].

[*] will be calculated each month by taking the [*] of the Inktomi [*] without regard to [*] ([*]) [*] ([*]) [*] by the agreed total [*] provisioned.

[*] will be calculated for each party each month by [*] the number of [*] ([*] the [*] in the [*]) from the number of [*] for the [*].





Example:

     Assumptions:      1. Microsoft provisioned capacity is [*]      2. Inktomi provisioned capacity is [*]      3. [*] in [*] is $[*]      4. [*] is [*] for a [*]      5. [*] is [*] for that [*]

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

     [*] = [*]  = [*]

     Over-Utilization Adjustment = [*] = $[*]              [*] in such [*] payable by [*]

Notwithstanding anything contained herein to the contrary, if a party shall have [*] its provisioned capacity by [*] in any month, such party shall be deemed [*] for its [*] during such month as soon as possible.

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                                     EXHIBIT F                                    ---------

                              Transfer by Inktomi                               -------------------

If Inktomi requests Microsoft's consent to a transfer as described in clause (a) of Section 12.5 of this Software Hosting Agreement to which this Exhibit F is  appended, and Microsoft reasonably withholds its consent to such transfer (an  Unconsented Transfer), then Inktomi will nevertheless have the right to  transfer this Agreement in connection with its proposed Unconsented Transfer  subject to the following conditions precedent to the Unconsented Transfer:

(i)   Inktomi, at its sole cost and expense, and without any financing supplied by Microsoft, will create a separate cluster of Hosting Servers for Microsoft required to service Microsoft's reasonably anticipated needs for a period of twelve months after the commencement of operation of such new and relocated cluster [provided however that Microsoft will purchase, or fund (in accordance with the Loan Agreement) Inktomi's of, (whichever Microsoft elects) any new hosting servers beyond the Hosting Servers purchased by Inktomi under said Software Hosting Agreement necessary to service Microsoft's reasonably anticipated needs as set forth above];

(ii)  Inktomi will relocate, at its sole cost and expense (including, without  limitation, indemnifying Microsoft and holding it harmless against any and all  Taxes that arise as a direct or indirect result of the relocation of the Hosting Servers), all Hosting Servers referred to in clause (i) to a location designated by Microsoft, in its sole discretion;

(iii) Inktomi, at its sole cost and expense, will provide training to Microsoft  personnel to the extent requested by Microsoft, to enable such personnel to use  and maintain the Microsoft Search Engine, and to create enhancements thereto,  with reasonable competence (all as determined by Microsoft in its sole discretion);

(iv)  Inktomi will grant to Microsoft an irrevocable, non-exclusive,  royalty-free license to use the Product (and all required underlying Inktomi  Technology) solely in connection with Microsoft's operation of the Microsoft  Search Engine (which license shall include the right to create enhancements and  other derivative works based thereon for use in conjunction therewith) for such  period as Microsoft may require to transition its search engine services to  non-Inktomi technology (the Transition Period), and Inktomi will waive all  royalties otherwise payable pursuant to the Software Development Agreement  and/or the Information Services Agreement between the parties of even date  herewith; for the purposes of this clause (iv), the Transition Period will  commence at such time as Microsoft assumes control over said separate cluster  and begins itself operating the Microsoft Search Engine, and will continue  thereafter for eighteen months (18) or until the

                                      24

  termination of the Software Development Agreement and Information Services  Agreement (whichever is longer);

(v)   Inktomi will direct the Escrow Agent to release to Microsoft all Confidential Materials held by the Escrow Agent, subject to Microsoft's agreement to use such Confidential Materials only in connection with its licensed rights under clause (iv) above;

(vi)  Inktomi will agree to reimburse Microsoft for all reasonable costs incurred by Microsoft in transitioning its search engine to non-Inktomi technology (whether created by Microsoft or by a third party); and

(vii) Inktomi will cause the applicable proposed transferee of this Agreement to assume, jointly and severally with Inktomi, all of Inktomi's obligations  hereunder.

Microsoft will cooperate with Inktomi and use its reasonable best efforts so as





to enable Inktomi to satisfy the foregoing conditions precedent in a timely  manner. Upon satisfaction of the foregoing conditions precedent, this Software  Hosting Agreement shall be deemed terminated pursuant to Section 10.1. Upon  expiration of the Transition Period, all rights granted to Microsoft to use the  Product (other than Microsoft Technology, Joint Derivative Technology and the  Microsoft Derivative Technology) and/or any Inktomi Technology under the  transitional license referred to in clause (iv) or otherwise shall cease, and  Microsoft shall immediately return to Inktomi all Confidential Materials (and all copies thereof), provided however that, notwithstanding any provision of the Ancillary Agreements to the contrary, the undertaking by Inktomi to indemnify Microsoft and hold it harmless against Taxes as provided in clause (ii) above shall survive any such terminations.

                                      25 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

A: Inktomi will maintain insurance (including but not limited
****
Q: EXHIBIT 4.11

                              SPONSORSHIP AGREEMENT                               ---------------------

     SPONSORSHIP  AGREEMENT dated as of May 1, 2002 (this  Agreement),  by and between  XYBERNAUT  CORPORATION,  a Virginia  corporation  (XC),  and ALEX JOB RACING, INC., a Florida corporation (AJR).

                                W I T N E S S T H                                 - - - - - - - - -

     WHEREAS,  XC is  the  market  leader  in  wearable  computers  and  related solutions and engages in other activities related thereto; and

     WHEREAS,  AJR is in the business of  operating  and  maintaining  Le Mans level  racing  car  teams  for the  2002 Le Mans  American  Racing  Season  (the Season); and

     WHEREAS,  XC is desirous of sponsoring an automobile  racing team comprised of two (2)  Porsche GT racing  cars which will be raced and  managed  during the Season by AJR (the Team),  in order to enhance market awareness and visibility of XC, and its business and products; and

     WHEREAS, AJR is desirous of providing the aforementioned sponsorship to XC.

     NOW,  THEREFORE,  in consideration  of the terms,  covenants and conditions herein  contained,  and other good and valuable  consideration,  the receipt and legal  sufficiency of which is hereby  acknowledged  by the parties,  XC and AJR agree as follows:

                                A G R E E M E N T                                 - - - - - - - - -

     1. Sponsorship.

          (a)  In  consideration  of  the  payments,  through  the  issuance  of securities  to AJR as provided for in Section 3 hereof,  AJR agrees to designate XC as an associate sponsor and the exclusive  technology  sponsor for wearable computer  technology of the Team for the Season and grants to XC the rights and benefits of such sponsorship as more fully set forth herein.

          (b) In order to publicly  reflect this  sponsorship and provide the XC with the goodwill  associated  with the  sponsorship,  AJR shall  provide and XC shall receive,  throughout the Term (as  hereinafter  defined) of this Agreement the following:

                (i)     an XC logo shall be  prominently  displayed on the front                         hoods  and rear  quarters  of the two (2) Le Mans  level                         Porsche racing cars (the Cars), which will be raced by                         Team throughout the Season,

                (ii)    a large XC logo  will be  prominently  displayed  on the                         transporter vehicles for the Cars,

                (iii)   an XC logo shall be displayed  on the  dashboard of each                         Car in a  prominent  and  conspicuous  place so that the                         logo will be visible to

                        any in-car  camera which may be located in either of the                         Cars.  XC  acknowledges   that  the   installation   and                         operation of an in-car  camera is not within the control                         of, or guaranteed by, AJR, and

                (iv)    XC logo patches (which will be furnished by XC) shall be                         worn on a prominent  place on the uniforms of all of the                         crew and Team members.

     The size and placement of the XC logos,  as mutually  agreed upon by XC and AJR,  shall be the same size and placement as appearing in the first race of the Season on the Cars, transport vehicles and crew uniforms. XC shall have approval rights  over  use of its logo by AJR and  shall  designate  which  XC  trademark identifications are utilized by AJR and how they are used in connection with the logos.  The  costs  and  expenses  of  placing  the  XC  logos  on the  Cars  as contemplated  by subsections  (ii), (ii) and (iii) of this Section 1(b) shall be borne exclusively by AJR.

          (c) In  addition  to the logo  placements  described  in Section  1(b) hereof,  as part of the  sponsorship  granted  hereby,  during  the Term of this Agreement,  XC shall  also  receive  and AJR shall  provide,  at AJR's  cost and expense (except as otherwise expressly provided), the following:

                (i)     AJR shall make one of the Cars  available for display at                         one (1) promotional event to be designated by XC.

                (ii)    If requested by XC, XC shall have the right to host XC's                         employees  and  invitees  at a  hospitality  tent at the                         various  race venues  during the Season,  the details of                         each  hospitality  event to be  agreed  to by XC and AJR                         (such details to include, without limitation, the amount                         of costs to be paid by XC, the  drinks and food  service





                        at the event,  seating, the availability of VIP parking,                         etc.).

                (iii)   If  requested by XC, in its sole  discretion,  AJR shall                         make one of the drivers of the Cars  available to attend                         promotional and media events hosted by XC; provided that                         XC shall pay for the reasonable  out-of-pocket costs and                         expenses  incurred by AJR in making the driver available                         for such events.

                (iv)    AJR  shall  provide  a link  from  its  website  to XC's                         website,  such  linking  to be  accomplished  as soon as                         possible after the date of this Agreement. AJR shall not          &bbsp;              make any  reference  to XC on its website (or modify any                         approved reference) without XC's prior written approval.

                (v)     AJR  shall use its best  efforts  to  promote  the name,                         image,  brand and  reputation of XC and the products and                         services  of XC. In  addition,  AJR  shall  assist XC in                         evaluating various applications of wearable and wireless                         devices  to  automobile   racing   including

                                      -2-

                        potential  applications  for the use of  devices  at the                         track,  in the pits,  in the  stands and  generally  for                         crowd control.

                (vi)    Subject to the prior approval of Porsche,  XC shall have                         the right to use  photographs  of the Cars,  the drivers                         and  other   Team   members  in   connection   with  the                         preparation  of  promotional  and  marketing  materials,                         without paying any royalty or other fee. If clearance or                         approvals are required to be obtained in connection with                         the use of such photographs,  AJR shall use commercially                         reasonable   efforts  to  obtain  such   clearances  and                         approvals. The extent of the approvals to be sought from                         the drivers  and other Team  members  shall  include the                         right to use their name,  likeness,  approved  biography                         and  sobriquet in  connection  with such  marketing  and                         promotional materials.

     2. Other Rights of XC. During the Term of this Agreement, XC shall have the right to identify  itself  with the Team and to  identify  itself as an official technology  sponsor for  wearable  computers  of the Team in any  promotional, marking or other materials used by XC.

     3. Consideration to AJR; Registration Rights.

          (a) In  consideration of the rights granted to XC pursuant to Sections 1 and 2 hereof and the provisions of this  Agreement,  XC shall issue to AJR (i) 125,000  shares  (the  Shares)  of common  stock,  par value  $0.01 of XC (the Common  Stock);  and (ii)  warrants to purchase  50,000 shares of Common Stock (the  Warrants).  The Warrants shall have an exercise price of $1.18 per share being the closing  market price for the Common Stock on April 30, 2002 and shall be exercisable for a period of three (3) years from their date of issue.

          (b) In  addition  to the  Shares  and  Warrants  to be  issued  to AJR pursuant to Section 3(a)  hereof,  XC agrees to provide to AJR five (5) to eight (8) (as  determined by XC in its  discretion)  MAV(R)  wearable  computers  (the Units) to be used by AJR to promote XC's products and services as contemplated by Section 1(c)(v). AJR shall have no liability for any damage to or loss of the wearable computers issued to AJR under this Agreement, except to the extent such damage  or loss  results  from the  intentional  abuse of the  equipment  by AJR personnel.

          (c) XC shall provide a link from its website to AJR's website.

          (d) XC  hereby  grants to AJR  piggyback  registration  rights  with respect to the Shares and the shares of Common  Stock  underlying  the  Warrants (collectively,  the  Registrable  Securities).  Pursuant  to such  piggyback registration  rights, XC shall include all of the Registrable  Securities in any registration  statement filed by XC with respect to its Common Stock (other than on a  registration  statement  on Forms  S-8 or S-4 (or any  successors  to such forms) or relating to any employee  stock option plan) with the  Securities  and Exchange Commission.  In the event a registration  statement covering all of the Registrable  Securities  has

                                      -3-

not been filed with the Securities and Exchange  Commission on or before July 1, 2002, XC agrees to pay to AJR $10,000. XC shall pay to AJR an additional $10,000 for each thirty-day  period  thereafter  (e.g.,  ending,  August 1, September 1, etc.) in which a  registration  statement has not been filed with the Securities and Exchange Commission for purposes of registering all Registrable  Securities. All such  payments  due  hereunder  shall be payable on or before the 5th of the month in which such payment  becomes due. In the event XC voluntarily  withdraws any registration  statement submitted to the Securities and Exchange Commission, XC shall be deemed to have  never  submitted  such  registration  statement  for purposes of this paragraph.  Unless  otherwise agreed by XC and AJR, none of the





Registrable  Securities shall be sold as part of an underwritten public offering in connection with the registration  statement filed pursuant to this paragraph, but, instead, shall be delivered to AJR as unrestricted, freely trading Shares.

          (e) All costs and expenses  associated  with the  registration  of the Registrable  Securities  shall be born by  XC.AJR  shall  provide  XC with  such information  regarding AJR as XC shall request for inclusion in the registration statement  and shall  indemnify the Company and hold it harmless with respect to any material misstatement or material omission with respect to such information

          (f) All Registrable Securities that are registered pursuant to Section 3(d) hereof shall be subject to the lock-up  provided for in this Section 3(f) (the  Lock-Up),  and AJR agrees to be bound by the  Lock-Up.  Pursuant  to the Lock-Up,  AJR agrees that following the registration of Registrable  Securities, it shall not directly or  indirectly,  sell,  transfer,  pledge,  assign,  gift, hypothecate  or  otherwise  dispose of more than 25,000  shares of Common  Stock during  any  five  (5)  consecutive  trading  days on the  principal  securities exchange or securities market where XC's Common Stock is then traded.

     4. Accredited Investor Representations.  In order to induce XC to issue the Shares and the  Warrants to AJR,  AJR hereby  represents  and  warrants to XC as follows:

          (a) AJR is aware of what constitutes an accredited  investor as that term is defined under Regulation D promulgated under the Securities Act of 1933, as amended (the  Securities  Act), and under applicable state securities laws, and AJR represents and warrants that is an accredited investor for purposes of Regulation D and such state securities laws.

          (b) AJR acknowledges that an investment in the Shares and the Warrants is a  speculative  investment  and  involves a high degree of risk,  and that XC makes no assurances  whatsoever  concerning the present or prospective  value of the  Shares  or the  Warrants.  AJR is able to bear  the  economic  risks  of an investment in the Shares and the Warrants,  and, consequently,  without limiting the generality of the foregoing, is able to hold the Shares and the Warrants for an indefinite period of time and has a sufficient net worth to sustain a loss of its entire  investment  in the Shares and the  Warrants in the event such a loss should occur.

          (c) AJR has had an opportunity to review copies of XC's public filings with  the  United  States   Securities  and  Exchange   Commission  (the  SEC) (collectively,  the Public  Documents).  AJR has had the opportunity to obtain any additional  information  necessary to verify the accuracy of the information contained in the Public  Documents  and has been given the  opportunity  to meet with representatives of XC and to have them answer any questions and

                                      -4-

provide any  additional  information  considered  relevant by AJR. In making its decision  to invest in Shares and the  Warrants,  AJR has  relied  solely on the Public Documents.

          (d) AJR is acquiring the Shares and the Warrants for AJR's own account for  investment  and not with a view to or for  resale  in  connection  with any distribution  of the  Shares or the  Warrants.  AJR has not  offered or sold any portion of the Shares or the Warrants  and has no present  intention of dividing the Shares or the Warrants with others or of selling,  distributing or otherwise disposing of any portion of the Shares or the Warrants either currently or after the passage of a fixed or determinable  period of time or upon the occurrence or non-occurrence of any predetermined event or circumstance.  AJR is acquiring the Shares and the Warrants for AJR's own account for investment and not with a view to or for  resale  in  connection  with any  distribution  of the  Shares or the Warrants.  AJR has not offered or sold any portion of the Shares or the Warrants and has no present  intention of dividing the Shares or the Warrants with others or of selling,  distributing or otherwise disposing of any portion of the Shares or the Warrants either currently or after the passage of a fixed or determinable period of time or upon the  occurrence or  non-occurrence  of any  predetermined event or  circumstance.  Nothing in this Section 4(d) shall limit the ability of the AJR to sell or transfer any of the Shares  following the  effectiveness of a registration  statement  concerning  the Shares in accordance  with Section 3(d) hereof.

          (e) AJR  understands  that the issuance of the Shares and the Warrants has not been  registered  under the  Securities  Act and that the Shares and the Warrants have been issued in reliance upon an exemption therefrom for non-public limited offerings.  AJR acknowledges that the Shares and the Warrants constitute restricted  securities  under  the  Securities  Act and  they may not be sold, transferred,  assigned,  pledged or otherwise  disposed of, except pursuant to a registration  statement that is declared  effective under the Securities Act, or an exemption  from  registration  under the Securities Act as determined by XC's legal  counsel.  AJR  further  acknowledges  and  agrees  that XC will  place an appropriate  restrictive  legend  on the  certificates  for the  Shares  and the Warrants,  as applicable,  to comply with the Securities Act and to identify the Shares and the Warrants as restricted securities.

          (f) AJR further acknowledges that no United States federal (including, without  limitation,  the SEC),  or state agency or similar  agency of any other country,  has  reviewed,  approved,  passed upon or made any  recommendation  or endorsement regarding XC or the Shares or the Warrants.

          (g) AJR  acknowledges  that XC is  relying  on the  accuracy  of AJR's representations  and warranties set forth in Section 4 in issuing the Shares and the Warrants to AJR.





          (h)  AJR  acknowledges   that  the  certificate  for  the  Registrable Securities  shall contain such legends as XC shall consider  necessary to ensure compliance with the restrictions of the Securities Act and with the Lock-Up.

     5. Term. Subject to earlier termination as provided for herein, the term of this Agreement  shall commence as of the date hereof and shall  terminate at the end of the Season which is scheduled to end on October 12, 2002 (the Term).

                                      -5-

     6. Licensed Materials.

          (a) XC does hereby  grant AJR a limited and  non-transferable  license and  non-exclusive  right to use XC's logo and  trademarks and service marks set forth on Schedule A attached hereto (the Licensed  Materials)  during the Term of this Agreement.  AJR shall only be permitted to use the Licensed Materials in connection  with  the  Sponsorship  and  only in the  limited  manner  expressly permitted as set forth on Schedule A attached hereto. No other use of any of the Licensed  Materials by AJR shall be  permitted.  AJR shall not have the right to modify,  alter or change any of the Licensed  Materials.  All Licensed Materials shall remain the sole and exclusive  property of XC and AJR shall not obtain any right,  title or interest  therein.  AJR shall not have any right to sub-license any of the Licensed Materials to any third party.

          (b) Upon the  termination  of this  Agreement,  AJR shall  immediately cease  using any of the  Licensed  Materials  and shall  comply with the written directions of XC in connection therewith.

          (c) XC  represents  and warrants to AJR that XC has the right to grant to AJR  the  right  to use  the  Licensed  Materials  as  contemplated  by  this Agreement.

          (d) AJR shall not use any of the  Licensed  Materials  to  express  or imply any  endorsement of any other sponsor of the Team by XC. AJR shall not use any of the Licensed Materials in connection with, or in any way associated with, the names, marks, trademarks,  servicemarks,  symbols, products, services, logos or proprietary designations or properties of any third party.

          (e)  Notwithstanding  anything  to the  contrary  herein,  AJR  and/or Porsche shall be permitted to use  photographs of the Cars,  transport  vehicles and crew uniforms containing XC logos and Licensed Materials for any promotional or marketing purposes during and forever after the term of this Agreement.

     7. Reputation. AJR shall not take any action or suffer any action to occur, whether taken by the Team or others,  which could result in an adverse impact on XC, its Licensed Materials and the goodwill associated  therewith as a result of this Agreement.  Neither party shall have the right to use the corporate name of the other.

     8. Representations and Warranties.

          (a) In order to induce  the  other  party  hereto  to enter  into this Agreement,  each of XC and AJR hereby represents and warrants to the other party as follows:  (i) it is duly  organized,  validly  existing and in good  standing under the laws of the jurisdiction of the state of its incorporation,  with full power to carry on its business as presently  conducted  and as  contemplated  by this Agreement and to execute,  deliver and perform this Agreement in accordance with its terms;  (ii) this Agreement  constitutes  its legal,  valid and binding obligation,  enforceable  against it in accordance with its terms; and (iii) its execution,  delivery and  performance  of this  Agreement  does not and will not conflict with,  violate or breach any of its constituent  documents  (including, without  limitation,  its articles of incorporation and by-laws) or

                                      -6-

any material  contract or agreement or any decree,  order or judgment or any law or  regulation  to which it is a party or  subject  or by which it or any of its properties or assets is bound.

          (b) AJR hereby further represents and warrants to XC as follows:

                (i)     that AJR entering into this  Agreement  does not violate                         any rule or regulation of the entity and/or organization                         that oversees the Season; and

                (ii)    AJR shall not make any  representation  or warranty that                         the Cars are owned by or the property of XC.

     9. Confidentiality Covenant.

          (a)  As  a  consequence  of  this   Agreement  and  the   relationship established  hereby,  each  party  may  obtain  from  the  other  party  certain confidential and proprietary  and/or non-public  information with respect to the other party,  including,  without limitation,  pricing terms, business plans and prospects,  sales  and  marketing  techniques,   design  concepts,   information regarding the  development,  composition  and  manufacture  of products,  ideas, drawings,  product  specifications,  trade and industrial secrets,  intellectual property rights,  financial  information,  the names and the nature of, business





dealings with, suppliers, customers and others, and the other party's structure, organization,  commercial and business  affairs and financial  condition and the other party's trade secrets (collectively Confidential  Information).  Each of XC and AJR acknowledges  that the  Confidential  Information it obtains from the other party hereto  constitutes the trade secrets of the disclosing  party.  AJR and XC each agrees that it shall keep the  Confidential  Information it receives from the other party hereto strictly  confidential and shall not disclose any of the Confidential  Information to any other person or entity,  or take or use any of the Confidential Information for its own purposes,  except as may be required in connection with the  performance of its  obligations  under this Agreement or the enforcement of this Agreement.  Notwithstanding  the foregoing,  a party may disclose the  Confidential  Information  of the other party hereto:  (i) if such Confidential  Information  becomes  generally  known or available to the public, other  than  due to a  breach  of this  Agreement  by the  party  receiving  the Confidential  Information hereunder;  (ii) in connection with the enforcement of this  Agreement;  (iii) pursuant to applicable law,  regulation or subpoena;  or (iv) if such Confidential  Information was disclosed to either AJR or XC, as the case may be,  by a source  that was not  bound,  to the  knowledge  of the party receiving the Confidential Information,  to a confidentiality obligation for the benefit of, or fiduciary  relationship  in favor of, the other party hereto.  In furtherance of the confidentiality obligations set forth herein, AJR and XC will adopt and implement appropriate  procedures intended to prevent the unauthorized disclosure of  Confidential  Information  that it receives from the other party. The  obligations  of the parties  pursuant to this  Section 9 shall  survive the expiration or termination of this Agreement.

          (b) In the event  that XC and AJR,  as  applicable,  is  requested  or required (by deposition,  interrogatory,  request for documents, subpoena, civil investigative  demand or similar  legal,  judicial or  regulatory  process or as otherwise  required by  applicable  law or  regulation)  to disclose  any of the Confidential  Information  of the other  party  hereto,  such  person  shall (i) provide the other party hereto with prompt prior written  notice of such request or requirement,

                                      -7-

and (ii)  cooperate  with the  other  party so that the  other  party may seek a protective  order  or  other  appropriate  remedy  or,  if  appropriate,   waive compliance  with the terms and provisions of this  Agreement.  In the event that such protective order or other remedy is not obtained, or the other party waives compliance with the terms and provisions hereof, each of XC and AJR, as the case may be, may disclose only that portion of the Confidential Information that such person is  advised  by legal  counsel  in  writing  is  legally  required  to be disclosed.

          (c)  Each  of XC and AJR  agree  that  money  damages  would  not be a sufficient  remedy for any breach of the  provisions  of this Section 9 and that either XC and AJR, as the case may be,  shall be entitled to  equitable  relief, including,  without  limitation,  injunctive  relief  and  specific  performance (without  being required to obtain a bond or post other security or prove actual damages),  in the  event  of  any  breach  or  threatened  breach  of any of the provisions of this Section 9 by the other party, in addition to all other rights and  remedies  available  to XC and AJR, as the case may be,  whether at law, in equity or otherwise relating to such breach.

     10. Termination by XC.

          (a) XC may terminate  this  Agreement  upon written notice to AJR upon the occurrence of any of the following events (each an AJR Event of Default):

                (i)     AJR breaches any material term, provision or covenant of                         this  Agreement  on the  part of AJR to be  observed  or                         performed  and such breach is not cured  within ten (10)                         days after written  notice of the breach is given by XC;                         or

                (ii)    Any  representation  or  warranty  made  by AJR in  this                         Agreement shall be materially  false or misleading as of                         the date made; or

                (iii)   AJR  makes  a  general  assignment  for the  benefit  of                         creditors  or  has  a  custodian,  receiver  or  similar                         official  appointed over it or all or substantially  all                         of its properties or assets; or

                (iv)    AJR shall commence any case,  proceeding or other action                         seeking  to have an  order  for  relief  entered  on its                         behalf as a debtor or to  adjudicate  AJR as bankrupt or                         insolvent,  or seeking the reorganization,  arrangement,                         adjustment,  liquidation,  dissolution or composition of                         AJR or its debts under any applicable  law,  domestic or                         foreign,    relating    to    bankruptcy,    insolvency,                         reorganization,  dissolution  or  relief of  debtors  or                         seeking  the   appointment   of  a  receiver,   trustee,                         custodian or other  similar  official for AJR or for all                         or a substantial part of its properties or assets; or an                         involuntary   case,   proceeding   or  other  action  is                         commenced against AJR by any other party with respect to                         any  of the  foregoing,  and in  the  case  of any  such                         involuntary case, proceeding or other action, such case,                         proceeding  or other  action is not stayed or  dismissed                         within sixty (60) days of the commencement thereof; or





                                      -8-

                (v)     XC  reasonably  determines  that AJR is using any of the                         Licensed Materials in a manner that is not permitted by,                         or inconsistent  with, the limited rights granted to AJR                         hereunder.

                (vi)    XC reasonably  determines that its continued involvement                         with AJR or the Term will result in an adverse impact to                         XC's reputation.

          (b) Early  Termination  by AJR.  AJR shall have the right to terminate this  Agreement  upon  written  notice to XC upon the  occurrence  of any of the following events (each an AJR Event of Default):

                (i)     XC breaches any material term,  provision or covenant of                         this  Agreement  on the  part  of XC to be  observed  or                         performed  and such breach is not cured  within ten (10)                         days after written notice of the breach is given by AJR;                         or

                (ii)    Any  representation  or  warranty  made  by XC  in  this                         Agreement shall be materially  false or misleading as of                         the date made; or

                (iii)   XC  makes  a  general  assignment  for  the  benefit  of                         creditors  or  has  a  custodian,  receiver  or  similar                         official  appointed over it or all or substantially  all                         of its properties or assets; or

                (iv)    XC shall  commence any case,  proceeding or other action                         seeking  to have an  order  for  relief  entered  on its                         behalf as a debtor or to  adjudicate  XC as  bankrupt or                         insolvent,  or seeking the reorganization,  arrangement,                         adjustment,  liquidation,  dissolution or composition of                         XC or its debts under any  applicable  law,  domestic or                         foreign,    relating    to    bankruptcy,    insolvency,                         reorganization,  dissolution  or  relief of  debtors  or                         seeking  the   appointment   of  a  receiver,   trustee,                         custodian or other similar official for XC or for all or                         a substantial  part of its  properties or assets;  or an                         involuntary   case,   proceeding   or  other  action  is                         commenced  against XC by any other party with respect to                         any  of the  foregoing,  and in  the  case  of any  such                         involuntary case, proceeding or other action, such case,                         proceeding  or other  action is not stayed or  dismissed                         within sixty (60) days of the commencement thereof.

          (c) Rights  Upon An Event of  Default.  In  addition  to the rights of termination  set  forth  in  Sections  11 (a) and  (b),  respectively,  upon the occurrence of an AJR Event of Default or a XC Event of Default,  as the case may be, the other party shall be  entitled to all of its rights and  remedies  under this  Agreement,  applicable  law, in equity or  otherwise  with  respect to the actions or inactions  that gave rise to the AJR Event of Default or the XC Event of Default, as the case may be. In addition, upon the occurrence of an AJR Event of Default any of the Warrants which have not been exercised shall automatically terminate  and be void and all of the  Shares  and any  shares of  Common  Stock issued  in the  exercise  of the  Warrants  shall  be  purchasable  by

                                      -9-

XC at the purchase  price of $1.00.  Upon XC tendering the purchase  price,  AJR shall promptly  deliver to XC the  certificates for the Shares and any shares of Common  Stock  issued upon the  exercise  of the  Warrants,  together  with duly executed blank stock powers.

     11. Indemnification.

          (a) AJR shall  indemnify  each XC  Indemnified  Party and hold each XC Indemnified  Party harmless from and against any and all Losses  incurred by any XC Indemnified Party,  directly or indirectly,  as a result of or based upon any of the following:

                (i)     any breach by AJR of any of its agreements, covenants or                         obligations hereunder; or

                (ii)    the use of any of the  Licensed  Materials  in a  manner                         that is not permitted hereby.

          (b) XC shall  indemnify AJR and its  directors,  officers,  employees, agents and attorneys and their  respective  successors and assigns (each an AJR Indemnified  Party) and to hold each AJR  Indemnified  Party  harmless from and against any and all Losses  incurred by any AJR Indemnified  Party,  directly or indirectly, as a result of or based upon, any of the following:

                (i)     any breach by XC of any of its agreements,  covenants or                         obligations hereunder; or

                (ii)    a claim by any third  party that the  permitted  uses of                         any of the  Licensed  Materials  hereunder  violates  or                         infringes   any   of   the    trademarks,    tradenames,





                        servicemarks,   servicenames   or   other   intellectual                         property rights of such third party.

          (c) Either party seeking  indemnification  under this  Agreement  (the Indemnified  Party)  shall  give  notice  to the  party  required  to  provide indemnification   hereunder  (the  Indemnifying   Party)  promptly  after  the Indemnified Party has actual knowledge of any claim as to which indemnity may be sought hereunder,  and the Indemnified Party shall permit the Indemnifying Party (at the sole cost and expense of the  indemnifying  Party) to assume the defense of any claim or litigation resulting therefrom;  provided, that: (i) counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation shall be reasonably  satisfactory to the Indemnified Party; (ii) the Indemnified Party may participate in such defense,  but only at the Indemnified  Party's own cost and expense; and (iii) the omission by the Indemnified Party to give notice as  provided   herein   shall  not  relieve  the   Indemnifying   Party  of  its indemnification  obligations hereunder,  except to the extent that such omission results in a material impairment of the deficiencies to the Claims asserted.

          (d) The  Indemnifying  Party shall not,  except with the prior written consent  of  the  Indemnified  Party,  consent  to  entry  of  any  judgment  or administrative  order or enter  into any  settlement  that (i) could  affect the intellectual  property  rights or other  business  interests of the  Indemnified Party or (ii) does not include as an  unconditional  term  thereof the giving by the  claimant  or  plaintiff  to the  Indemnified  Party of a  release  from all liability with respect to such claim or litigation.

          (e) In the event  that  either  (i) the  Indemnifying  Party  does not assume the  defense  of the claim  subject  to  indemnification  within ten (10) business days after  receiving  written notice of the claim from the Indemnified Party  pursuant  to Section  12(c)  hereof or (ii) the  Indemnified  Party shall reasonably  and in good faith  determine  that the conduct of the defense of any claim  subject to  indemnification  hereunder or any proposed  settlement of any such claim by the  Indemnifying  Party might be expected to affect adversely the Indemnified  Party's  intellectual  property rights or ability to conduct future business,  the Indemnified  Party shall have the right at all times to take over and  assume  control  over the  defense,  settlement,  negotiations  or  lawsuit relating  to any such  claim at the sole cost and  expense  of the  Indemnifying Party.

                                      -10-

          (f) For purposes hereof, the term XC Indemnified Party shall mean XC and  its  directors,   officers,  employees,  agents  and  attorneys  and  their respective successors and assigns.

          (g) For purpose  hereof the term  Losses  shall mean  out-of  pocket costs and expenses.

          (h) Notwithstanding  anything herein to the contrary,  AJR's liability under  this  Section  11 shall not exceed One  Hundred  Fifty  Thousand  Dollars ($150,000).  In addition,  AJR's  obligations  under  Section  11(a) above shall survive  for a  period  of one (1)  year  after  the  date  of  this  Agreement. Thereafter,  AJR's  obligations under Section 11(a) shall terminate and be of no further force and effect,  except to the extent of any claims made thereunder by XC  prior  to  such  date,  which  claims  shall  survive.  The  indemnification obligations  described  in Section  11(a),  including  all  limitations  on such obligations, shall be the exclusive remedy of the XC Indemnified Parties for any Losses  resulting from or based upon any breach by AJR of any of its agreements, covenants or obligations  hereunder or the use of any of the Licensed  Materials in a manner that is not permitted hereby.

     12. Independent  Entities.  This Agreement is being entered into by two (2) independent  corporations  and nothing herein shall create a partnership,  joint venture,  fiduciary or other relationship.  Neither party has the right or shall represent  to any other  person or entity that it has the right to legally  bind the other party hereto.

     13.  Force  Majeure.  XC and AJR  shall  not be liable to the other for any delay or failure to perform its  obligations  hereunder which is principally the result of the occurrence of an Event of Force Majeure.  In the event of any such delay or failure,  XC or AJR, as applicable,  shall immediately  furnish written notice thereof and the reason therefor to the other party. The performance of XC or AJR, as  applicable  shall be deemed  suspended  so long as and to the extent that any such Event  Force  Majeure  continues.  XC or AJR,  as the case may be, shall use its best  efforts to cure or correct  any such Event of Force  Majeure and  resume  performance  of its duties and  obligations  hereunder,  within the shortest  period of time  possible.  For  purposes of this  Agreement,  the term Event  of Force  Majeure  shall  mean  any of the  following:  war,  sabotage, insurrection,  riot,  the act of any  government  (de  facto  or de jure) or any agency or subdivision thereof,  acts of terrorism,  accident,  fire,  explosion, flood,  storm,  hurricane or other acts of God or other  similar acts beyond the reasonable  control of XC or AJR, as the case may be, which  prevents XC or AJR, as the case may be, from performing its obligations hereunder.

                                      -11-

     14. Governing Law. This Agreement and all acts and  transactions  hereunder shall in all respects be governed by and construed in  accordance  with the laws of the Commonwealth of Virginia,  without regard to any of its conflicts of laws principles  which would result in the  application  of the  substantive  laws of





another jurisdiction.  This Agreement shall not be construed or interpreted with any presumption against the party that caused this Agreement to be drafted.

     15.  Notices.  Any  and  all  notices,  consents,  instructions  and  other communications  which are required or permitted to be given hereunder or made by one party  hereto to the other  party  hereto  shall be in writing  and given as follows:  (a) by  personal  delivery;  (b)  by  first-class  international  mail (postage  prepaid);  (c)  by  facsimile;  or  (d)  by  overnight  delivery  by a recognized  international  express courier  company (all costs prepaid),  at the following respective addresses or facsimile numbers, set forth below:

          If to XC:                 Xybernaut Corporation                                     12701 Fair Lakes Circle, Suite 550                                     Fairfax, VA  22033                                     Fax:  703-631-6734                                     Attention: Mr. Edward G. Newman                                                President

          with copies to:           Xybernaut Corporation                                     12701 Fair Lakes Circle, Suite 550                                     Fairfax, VA  22033                                     Fax:  703-631-6734                                     Attention:  H. Jan Roltsch-Anoll, Esq.                                                 General Counsel

                                    and

                                    Jenkens & Gilchrist Parker Chapin LLP                                     405 Lexington Avenue                                     New York, NY  10174                                     Fax:  212-704-6288                                     Attention:    Martin Eric Weisberg, Esq.

          If to AJR:                Alex Job Racing, Inc.                                     551 Southridge Industrial Drive                                     Tavares, FL 32778                                     Fax:  (703) 343-3890                                     Attention:  Alex Job

or at such  other  address  or  facsimile  number as  either  party  hereto  may designate  by notice to the other party hereto in  accordance  with this Section 15. All such notices, consents,  demands,  instructions and other communications shall be deemed given (a) on the date delivered, if

                                      -12-

delivered,  personally;  (b) or on the date received if mailed,  by  first-class international mail (with all postage prepaid);  (c) on the date of the facsimile transmission,  if received on a business day between the hours of 9:00 a. m. and 6:00 p. m. in the time zone of the intended  recipient  or on the next  business day if  received  after  that  time,  in each  case  with an  automatic  machine confirmation  indicating the time of receipt;  or (d) on the second business day after delivery&bbsp;to a recognized  international  overnight express courier company (with all costs prepaid).

     16.  Consent  to  Jurisdiction.  The  parties  hereby  unconditionally  and irrevocably  consent  to  the  exclusive  jurisdiction  of  the  courts  of  the Commonwealth  of Virginia  located in Fairfax  County and the  Federal  District Court for the Northern District of Virginia with respect to any action,  suit or any proceeding to enforce this  Agreement and  unconditionally  and  irrevocably waive the right to trial by jury in any such action,  suit or other  proceeding. Each of the parties hereby  unconditionally  and irrevocably waives any right to challenge  the  jurisdiction  of such  courts  or to  assert  that  such  courts constitute  an  inconvenient  forum or that venue in such courts is improper.  A party that  prevails in any action,  suit or other  proceeding  to enforce  this Agreement shall be entitled to be reimbursed for its costs and expenses incurred in connection therewith  (including,  without limitation,  reasonable attorney's fees and disbursements).

     17.  Assignment.  Neither this Agreement nor any of the rights,  duties and obligations  of the parties  hereunder may be assigned or delegated by XC or the AJR, as the case may be,  without the prior  written  consent of the other party hereto.  Any such  assignment or delegation  made without the written consent of the  other  party  hereto  shall  be ab  inito  null and void and of no force or effect.  This Agreement and the provisions  hereof shall be binding upon each of the  parties  hereto,  and  shall  inure  to the  benefit  of  their  respective successors (whether by merger, consolidation,  recapitalization or other similar transaction) and permitted assigns, sublicensees or delegatees.

     18. Severability. If any term, provision or condition of this Agreement, or the application thereof to any person or circumstance,  shall be held by a court or  other  tribunal  of  competent  jurisdiction  to  be  invalid,   illegal  or unenforceable,  the remainder of this  Agreement,  and the  application  of such term,  provision or condition to persons or circumstances other than those as to which it is held invalid,  illegal or unenforceable shall be unaffected thereby, and each term,  provision and condition of this  Agreement  shall be enforced to the fullest extent permitted by applicable law.

     19.  Further  Assurances.  The parties  agree to do such  further  acts and things and to execute and deliver such  additional  documents and instruments as the other  party may  reasonably  request in order to  consummate,  evidence  or





confirm the agreement of the parties contained herein in the manner contemplated hereby.

     20. Amendment: Waiver. This Agreement may not be modified, amended, changed or  supplemented,  nor may any obligations  hereunder be waived or extensions of time for performance be granted, except by a written instrument executed by each of the parties  hereto.  No waiver of any breach of any  agreement,  covenant or provision  herein  contained  shall be deemed to be a waiver of any preceding or succeeding  breach  thereof or of any other  agreement,  covenant  or  provision herein  contained.  Any  waiver  granted  in  accordance  with the terms of this Agreement shall be limited to the specific  instance and purpose for which it is granted.

                                      -13-

     21. Entire Agreement.  This Agreement,  together with the Schedule attached hereto,  sets forth the entire  understanding  and agreement between the parties hereto with respect to the subject  matter  hereof and it  supersedes  all prior and/or  contemporaneous  understandings and agreements (whether written or oral) with respect to such subject matter,  all of which are merged herein.  There are no covenants, promises, agreements, conditions, understandings,  representations or warranties with respect to the subject matter hereof,  except those expressly set forth herein. All indemnification obligations of the parties hereunder shall survive the expiration or termination of this Agreement.

     22.  Counterparts,  etc. This  Agreement may be executed in two (2) or more counterparts (including, without limitation, by means of a facsimile signature), each of which  shall be deemed an  original,  but all of  which,  when  together constitute one and the same instrument.  Section headings in this Agreement have been inserted for  convenience  of reference  only and they shall not affect the construction or interpretation of any term or provisions of this Agreement.  The use of the  singular  shall be deemed to include the plural,  and the use of the masculine  shall be deemed to include  the  feminine  and the  neuter,  and vice versa, wherever the context so requires.

     IN WITNESS WHEREOF, the parties have executed this Agreement as of the year and day first above written.

                                  XYBERNAUT CORPORATION

                                  By:                                       ------------------------------------------                                          Name:                                               ----------------------------------                                          Title:                                                ---------------------------------

                                  ALEX JOB RACING, INC.

                                  By:                                       ------------------------------------------                                          Name:                                               ----------------------------------                                          Title:                                                ---------------------------------

                                      -14-

SCHEDULE A

                          Licensed Materials

1.       Xybernaut(R); 2.       Mobile Assistant(R); 3.       MA(R)V; 4.       XyberKids(TM); and 5.       The Xybernaut logo:

     [GRAPHIC OMITTED][GRAPHIC OMITTED] 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

A:
The  indemnification obligations  described  in Section  11(a),  including  all  limitations  on such obligations, shall be the exclusive remedy of the XC Indemnified Parties for any Losses  resulting from or based upon any breach by AJR of any of its agreements, covenants or obligations  hereunder or the use of any of the Licensed  Materials in a manner that is not permitted hereby.
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