Exhibit 10.13
AMENDMENT TO LICENSE
AGREEMENT
THIS AMENDMENT TO LICENSE AGREEMENT
(“Amendment”) is entered into this 31st day of August,
1999, by and between Ticketmaster Corporation
(“Ticketmaster”) and Ticketmaster Group Limited
Partnership (“User”), with reference to the following
facts:
A.
Ticketmaster and User entered into
that certain License Agreement dated as of May 23, 1991
(“License Agreement”), whereby Ticketmaster granted
User an exclusive license and right to use the Ticketmaster System,
name, logo and Mark in connection with User’s computerized
event ticketing business in the Market Area upon the terms and
conditions set forth in the License Agreement.
B.
Ticketmaster and User hereby desire
to amend the License Agreement in certain respects as set forth
herein.
NOW, THEREFORE, in consideration of
the mutual promises and covenants set forth herein, the parties
hereby agree as follows:
1.
Defined Term(s)
. For purposes of the License
Agreement, as hereby, amended, the following terms shall have the
meanings set forth below:
“System” means and
includes any software or hardware or combination thereof which is
owned or controlled by, or licensed to or otherwise authorized for
use by, Ticketmaster in connection with a computer based system for
distributing tickets used in the United States, including related
procedures established and maintained by Ticketmaster for the
purpose of voice and data communications or selling, accounting,
auditing or controlling the sale of tickets for events.
“TM System User” means
and includes any person, sole proprietorship, partnership
corporation, joint venture or other legal entity (other than
Ticketmaster) operating the System within the United States. Any
such entity may be wholly owned or controlled by Ticketmaster,
partially owned, a joint venture or independent of
Ticketmaster.
All other capitalized terms used and
not otherwise defined herein shall have the meanings ascribed to
them in the License Agreement.
2.
Condition to
Effectiveness . This
Amendment shall not be effective unless and until the parties have
entered into and executed a definitive settlement and release
agreement with respect to claims asserted in and related to that
certain lawsuit entitled Ticketmaster Group Limited Partnership
v. Ticketmaster Corporation (and related counterclaim), USDC
Case No. 97 C2337, filed on or about April 4, 1997 in
United States District Court for the Northern District of Illinois,
and the Court shall have entered a final non-appealable Order
dismissing the lawsuit with prejudice. The “Effective
Date” of this Amendment shall be the same date as the
Effective Date of the Settlement Agreement being executed
concurrently herewith, as defined in paragraph 4
thereof.
3.
Additional
Payments . Effective
as of September 1, 1997, each of the Per Ticket Amounts set
forth in the table in Section 4 of the License Agreement shall
be increased by an amount equal to $0.02. The amount of the
Additional Payment for each applicable period since
September 1, 1997 shall be recalculated based upon such
increase in the Per Ticket Amounts, and the additional amount due
through July 31, 1999, shall be paid by User to Ticketmaster
no later than five days subsequent to the Effective Date. All
Additional Payments resulting from such $0.02 increase to the Per
Ticket Amount shall be in consideration of the settlement of the
litigation referred to in Section 2 above and
Ticketmaster’s agreement to permit User to continue to have
the right and license to use the Mark within the Market Area in
accordance with the provisions of the License Agreement, as amended
hereby.
4.
Upgrades
. Sections 12(b), 12(c),
12(d) and 12(e) of the License Agreement are hereby
deleted in their entirety and the following are hereby substituted
in lieu thereof:
(b)
Ticketmaster shall provide to User
during the term of this Agreement, at no additional cost to User
(except as set forth in Section 12(e) below) and at the
request of User, any software used on, in connection with or as any
part of any System operated or used in the United States by
Ticketmaster or any TM System User. Such software shall include,
without limitation, enhancements, upgrades to the System’s
operating software, new software products (including, by way of
example only, “FANTm” and “IVR”) and
software embedded in or part of any hardware. Notwithstanding the
foregoing, Ticketmaster shall have no obligation to provide User
with (i) the beta versions of any software, or developmental
or experimental software, whether or not in use by Ticketmaster or
any TM System User in connection with any System or
(ii) software developed for special events or attractions
(including, by way of example only, the Olympics) and which is not
practical for day-to-day use because of its complexity or unique
purpose and may not be cost effective for day-to-day use, or which
for other economic reasons is not made generally available to TM
System Users outside of the scope of a single use special event
application and therefore does not become a permanent part of the
System. Notwithstanding the foregoing, User shall have the right to
such special event software pursuant to the terms of this
Section 12(b) should a comparable special event (i.e.,
the Summer Olympics occurs in the Washington/Baltimore region) be
held in the Market Area.
(c)
If, at any time during the term of
this Agreement, User shall receive an upgrade to or improved
version of the software used in the System, the implementation of
which would require a conversion of User’s database,
Ticketmaster shall, upon User’s request, promptly effect such
conversion on behalf of User and shall bill User for such efforts
in accordance with Section 12(e) below.
(d)
In the event that User shall, at any
time during the term of this Agreement, request that Ticketmaster
develop custom enhancements to the System to meet certain specific
performance criteria reasonably requested by User, Ticketmaster
shall use reasonable efforts to cause such custom enhancements to
be developed by its
2
programmers in consideration of the
payment by User to Ticketmaster of the costs set forth in
Section 12(e) below.
(e)
User shall be responsible for the
direct and actual out-of-pocket costs incurred by Ticketmaster in
installing any provided software and training User’s
personnel in the using of provided software under
Section 12(b), converting User’s database under
Section 12(c), and developing custom enhancements under
Section 12(d). Such direct and actual out-of-pocket costs
shall include transportation and lodging and actual hourly
personnel costs, but shall not include overhead, miscellaneous
administrative costs and other similar indirect costs. Pursuant to
Section 14 of this Agreement, User shall also be responsible
for the costs of any and all hardware used by User in connection
with any software provided under this Section 12, including,
without limitation, all direct and actual costs for the
installation of such hardware,
In addition, the second and third
sentences of Section 8 of the License Agreement are hereby
deleted in their entirety, it being the intent of the parties that
User shall have access throughout the Term of the License Agreement
to the most current technology available from Ticketmaster for use
in connection with the System, and that Ticketmaster shall make
available to User hardware and software, such that User will have
the ability to operate a system having performance capabilities
equal to those of any other TM System User.
5.
Cooperation and
Support .
Section 12 of the License Agreement is hereby amended to add
the following to the end of such Section:
(g)
At Ticketmaster’s request,
User shall cooperate with Ticketmaster and utilize reasonable
efforts to participate in Ticketmaster promotional campaigns,
tours, events or other programs which are conducted on a national
or regional basis. Ticketmaster shall use its reasonable efforts to
offer User the opportunity to participate fully in all such
promotional campaigns, tours or other programs which involve the
Market Area. In the event that User shall agree, in writing, to
participate fully in any such program designated by Ticketmaster,
then User shall receive a share of revenues received by
Ticketmaster (after deduction of actual costs to Ticketmaster
regarding the establishment of the program, including, without
limitation, legal fees, but exclusive of administrative costs) for
its participation in such programs that is reasonably proportionate
to User’s participation, or a share of compensation that is
otherwise mutually agreeable to the parties,
(h)
With User’s prior consent,
Ticketmaster and/or a TM System User may sell tickets to events
located or to take place within the Market Area and, with
Ticketmaster’s prior consent (or that of the TM System User
in the relevant geographic area), User may sell tickets to events
located or to take place outside of the Market Area, in which event
revenue due each party shall be calculated taking the per ticket
gross revenue received in excess of the ticket face price
(expressly excluding any revenue derived from handling charges),
reducing such gross revenue by direct actual sales costs
3
such as (but not necessarily limited
to) credit card processing fees and venue and promoter rebates and
royalties, and splitting the resulting net revenue equally between
the parties, unless the parties shall mutually agree to a different
revenue distribution. User shall not receive a share of revenues as
contemplated by the immediately preceding sentence for special
events covered by Section 5 of this Agreement.
(i)
Ticketmaster shall utilize
reasonable efforts to permit User to participate in
(A) Ticketmaster’ s periodic national technology support
conference calls and meetings to the extent that those calls and
meetings take place, subject to Ticketmaster’s right to
exclude User in order to protect attorney/client privileged
communications or confidential or proprietary information, and
(B) conference calls and meetings concerning national or
regional promotional, marketing, sales or similar campaigns in
which User has agreed to participate to the extent that those calls
and meetings take place. Ticketmaster shall also provide User with
appropriate documents relative to the admin
