-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BHXgkLqQ40fFYRL+5CH+w5XtrtLyxRa/DY7x2V8iUE1cA3jcy3AnC/V3fQeFEX+l 7Pupn5eifSfiJWfi7aJUUA== 0000950117-05-004449.txt : 20051123 0000950117-05-004449.hdr.sgml : 20051123 20051123142041 ACCESSION NUMBER: 0000950117-05-004449 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20051123 ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20051123 DATE AS OF CHANGE: 20051123 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VIEWPOINT CORP CENTRAL INDEX KEY: 0000919794 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 954102687 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-27168 FILM NUMBER: 051224378 BUSINESS ADDRESS: STREET 1: 498 SEVENTH AVENUE STREET 2: SUITE 1810 CITY: NEW YORK STATE: NY ZIP: 10018 BUSINESS PHONE: 212-201-0800 MAIL ADDRESS: STREET 1: 498 SEVENTH AVENUE STREET 2: SUITE 1810 CITY: NEW YORK STATE: NY ZIP: 10018 FORMER COMPANY: FORMER CONFORMED NAME: VIEWPOINT CORP/NY/ DATE OF NAME CHANGE: 20001201 FORMER COMPANY: FORMER CONFORMED NAME: METACREATIONS CORP DATE OF NAME CHANGE: 19970529 FORMER COMPANY: FORMER CONFORMED NAME: HSC SOFTWARE CORP DATE OF NAME CHANGE: 19951019 8-K 1 a40873.htm VIEWPOINT CORPORATION

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported)

November 23, 2005

VIEWPOINT CORPORATION

(Exact name of registrant as specified in its charter)

Delaware	0-27168	95-4102687
(state or other juris-	(Commission	(I.R.S. Employer
diction of incorporation)	File Number)	(Identification No.)

498 Seventh Avenue, Suite 1810, New York, NY		10018
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (212) 201-0800

______________________________N/A______________________________

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 9.01

Financial Statements and Exhibits.

(c)

Exhibits

The following exhibits are filed herewith:

Exhibit 10.1*

Amendment No. 1 to the Overture Master Agreement, dated as of May 11, 2004

Exhibit 10.2*

Amendment No. 2 to the Overture Master Agreement, dated as of December 1, 2004

Exhibit 10.3*

Amendment No. 3 to the Overture Master Agreement, entered into on October 26, 2005

__________

* Confidential treatment has been requested for portions of this exhibit.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

VIEWPOINT CORPORATION

	/s/ William H. Mitchell
	William H. Mitchell
	Chief Financial Officer

Dated: November 23, 2005

EX-10 2 ex10-1.htm EXHIBIT 10.1

Amendment Number 1 (“Amendment #1”)

to the

Overture Master Agreement (“Agreement”)

between

Overture Services, Inc. (“Overture”) and Viewpoint Corporation (“Publisher”)

Effective Date of Agreement: January 14, 2004

This Amendment #1 to the above referenced Agreement is made and entered into effective as of May 11, 2004 (“Amendment Effective Date”) by and between Overture Services, Inc., a Delaware corporation with its principal place of business at 74 North Pasadena Avenue, 3^rd Floor, Pasadena, California 91103, and Viewpoint Corporation, a Delaware corporation with its principal place of business at 498 Seventh Avenue, New York, NY, 10018.

In consideration of the mutual covenants contained herein, and for such other goods and valuable consideration, the sufficiency of which is acknowledged by the parties hereto, Overture and Publisher desire to amend the Agreement as follows:

1. Conflicts, Use of Terms. In the event of conflict between the terms and conditions of the Agreement and the terms and conditions of this Amendment #1, the terms and conditions of this Amendment #1 will control. All capitalized terms used but not defined herein will have the meaning assigned to them in the Agreement.

2.	Modification of the Agreement. The Agreement is modified as follows: Exhibit 1-A is amended to add the mockups attached hereto as “Exhibit 1-A to Overture Master Agreement – Supplement 1.”

In addition to the existing terms and conditions of the Agreement, the following provisions shall apply specifically to the distribution of the Toolbar as implemented in Exhibit 1-A to Overture Master Agreement – Supplement 1:

[***]

3. No Other Modifications. Except as provided above, the terms and conditions of this Agreement remain unchanged.

IN WITNESS WHEREOF, the parties hereto have caused this Amendment #1 to the Agreement to be executed by their duly authorized representatives on the date(s) set forth below.

Overture Services, Inc.

Viewpoint Corporation

Signature /s/ William Demas

Signature /s/ Michael Salort

Name William Demas

Name Michael Salort

Title SVP & GM, PBSG

Title VP, Mktg & Business Dev.

Date 5/18/04

Date 5/11/04

_________________________

*** Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designed as [***]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.

Exhibit 1-A to Overture Master Agreement – Supplement 1

[***]

_________________________

EX-10 3 ex10-2.htm EXHIBIT 10.2

Execution Copy

Contract #204081-2

Amendment Number 2 (“Amendment #2”)

to the

Overture Master Agreement (“Agreement”)

Effective Date January 14, 2004

This Amendment #2 to the Agreement is made effective as of December 1, 2004 (“Amendment #2 Effective Date”) by Overture Services, Inc. (“Overture”) and Viewpoint Corporation. (“Publisher”).

In consideration of the mutual covenants contained herein, and for such other good and valuable consideration, the sufficiency of which is acknowledged by the parties hereto, Overture and Publisher desire to amend the Agreement as follows:

1.	[*] Deleted. The parties hereby agree to remove the [*] and all related provisions from the Agreement. Accordingly, the following sections and/or language are deleted:

Within the Overture Master Agreement: (i) Section 5.3, (iii) the fifth and sixth sentences in Section 6.3 (starting with “During each month ...” and ending with “... the applicable Monthly Install.”) and (iv) the tenth sentence in Section 6.4 [***];

Exhibit 5 to Overture Master Agreement (Install Delivery Schedule); and

Section 4 (Compensation) of Rider A. Compensation shall be governed by Section 3 below.

2.	Definition of “Toolbar Launch Date”. Section 4 of the Overture Master Agreement is hereby amended by adding the following as the final sentence of Section 4:

The date on which Publisher commences commercial distribution of the Toolbar is referred to in this Agreement as the “Toolbar Launch Date”.

No Use of Yahoo Branding. Other than as permitted by Section 7 of the Terms and Conditions to Overture Master Agreement, the parties hereby agree that Publisher shall not use any Yahoo Brand Features or the Yahoo name without Overture’s prior written consent. Accordingly, the following language is deleted from Section 6.5 of the Overture Master Agreement:

The first sentence; and

the phrase “other than as illustrated in Exhibit 1 to Rider A”.

4.	Compensation. Overture shall pay Publisher for Paid Placement Bidded Clicks in accord with the following:

[***]

_________________________

5.	Exhibit 1-A to Overture Master Agreement is deleted and replaced with the attached Updated Exhibit 1-A to Overture Master Agreement.

6.	Exhibit 1-C to Overture Master Agreement is deleted and replaced with the attached Updated Exhibit 1-C to Overture Master Agreement.

7.	Exhibit 2 to Overture Master Agreement is deleted and replaced with the attached Updated Exhibit 2 to Overture Master Agreement.

8.	Publisher shall provide notice to users as described in Subsection A(iii)(a) of Updated Exhibit 2 in the form attached as Attachment A to Updated Exhibit 2.

9.	For avoidance of doubt, the parties reaffirm the commitments described in Section 6.4 of the Overture Master Agreement as to the Toolbar [***].

Except as provided above, the terms and conditions of the Agreement remain unchanged.

IN WITNESS WHEREOF, the parties hereto have caused this Amendment #2 to the Agreement to be executed by their duly authorized representatives on the date(s) set forth below.

VIEWPOINT CORPORATION	OVERTURE SERVICES, INC.
By: /s/ Jerry S. Amato	By: /s/ William Demas
Name: Jerry S. Amato	Name: William Demas
Title: CEO	Title: SVP & GM

_________________________

UPDATED EXHIBIT 1-A TO OVERTURE MASTER AGREEMENT

[***]

_________________________

UPDATED EXHIBIT 1-C TO OVERTURE MASTER AGREEMENT

[***]

_________________________

UPDATED EXHIBIT 2 TO OVERTURE MASTER AGREEMENT

Publisher Representations, Warranties and Covenants. Publisher represents, warrants and covenants that the content on the Results Pages where Overture Content is displayed except to the extent provided by Overture, the technology used by Publisher in connection with the Toolbar and the means by which Users access or obtain the Toolbar (collectively, “Publisher Items”): (1) are owned, validly licensed for use by Publisher or in the public domain; (2) do not constitute defamation, libel or obscenity; (3) do not violate any law or regulation; (4) do not infringe, dilute or otherwise violate any copyright, patent, trademark or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of any person or entity, including without limitation, rights of privacy and publicity; and (5) do not result in any consumer fraud, product liability, breach of contract to which Publisher is a party, or cause injury to any third party. [***]

Termination; Publisher Indemnification. [***] In addition to and without limitation of Publisher’s indemnification obligations under Section 8.2 of the Terms and Conditions, Publisher shall indemnify, defend and hold harmless Overture [***]. Publisher’s Indemnification obligations hereunder will survive the expiration or termination of this Agreement. Overture shall have a right of offset in connection with any Publisher indemnification under this Exhibit 2.

C.	Distribution Consent. [***]

D.	Functionality Modifications. [***]

_________________________

EX-10 4 ex10-3.htm EXHIBIT 10.3

EXECUTION

Contract No. 204081-3

AMENDMENT NO. 3 (“AMENDMENT #3”)

TO THE

OVERTURE MASTER AGREEMENT (“ORIGINAL AGREEMENT”)

BETWEEN

OVERTURE SERVICES, INC.,

AND

VIEWPOINT CORPORATION

EFFECTIVE DATE OF ORIGINAL AGREEMENT: JANUARY 14, 2004

THIS AMENDMENT #3 to the above referenced Original Agreement is made and entered into as of October 18, 2005 (the “Third Amendment Effective Date”) by and between Overture Services, Inc. (“Overture”) and Viewpoint Corporation (“Publisher”), and amends the Original Agreement by and between Overture and Publisher (collectively with this Amendment #3, the “Agreement”).

Conflicts, Use of Terms. In the event of conflict between the terms and conditions of the Original Agreement and the terms and conditions of this Amendment #3, the terms and conditions of this Amendment #3 will control. All capitalized terms not defined herein will have the meaning assignment to them in the Agreement.

2.	Additional Toolbar Terms. The following is hereby inserted at the end of Section 2 of the Agreement:

For the avoidance of doubt, the terms and conditions attached as Exhibit 2 hereto, including any modifications, amendments, revisions, updates or restatements thereto or thereof, as mutually agreed to in writing by the parties, shall apply to the Toolbar.

3.	Term. The first sentence of Section 4 of the Agreement is hereby amended to read in its entirety as follows:

This Agreement shall commence as of the Effective Date and continue in force until March 17, 2008 (the “Initial Term”), unless earlier terminated in accordance with this Agreement.

4.	Exhibit 1-A. Exhibit 1-A to Overture Master Agreement is hereby deleted and replaced with the attached Updated Exhibit 1-A to Overture Master Agreement.

5.	Exhibit 1-B, Section A. Subsection 1 of Section A of Exhibit 1-B to the Agreement is hereby amended [***]

6.	Exhibit 1-B, Section C. The following Section C is hereby inserted immediately following Section B of Exhibit 1-B to the Agreement:

_________________________

CONFIDENTIAL

EXECUTION

Contract No. 204081-3

C. Notwithstanding anything to the contrary contained in this Agreement, Publisher may create and distribute customized versions of the Toolbar for third parties; provided that [***]

7.	Exhibit 1-B Mock-ups. The mock-ups attached as Exhibits 1-B-1 through 1-B-5 to the Agreement are hereby deleted and replaced by the mock-ups attached hereto as Updated Exhibit 1-B Mock-ups.

8.	Exhibit 1-C. Exhibit 1-C to Overture Master Agreement is hereby deleted and replaced with the attached Updated Exhibit 1-C to Overture Master Agreement.

9.	Exhibit 2, Section A. Section A of Updated Exhibit 2 to Overture Master Agreement is hereby amended by inserting the following at the end thereof:

[***]

10.	Exhibit 2, Section C. The first sentence of Section C of Updated Exhibit 2 to Overture Master Agreement is hereby amended in its entirety to read as follows:

[***]

11.	Error Page Implementation. The following Section 6 is inserted following Section 5 of Rider A to the Agreement:

Error Page Implementation. The terms and conditions set forth in Exhibit 2 to this Rider A shall apply when a User types an incomplete or otherwise improperly formed URL address query into the Address Bar (as defined in Exhibit 2).

12.	Error Implementation Exhibit. Exhibit 2 to Rider A, which is attached hereto, is hereby attached as Exhibit 2 to Rider A of the Agreement.

13.	No Other Modifications. Except as amended by this Amendment #3, the Agreement will remain in full force and effect in accordance with its terms.

_________________________

CONFIDENTIAL

EXECUTION

Contract No. 204081-3

This Amendment #3 has been executed by the duly authorized representatives of the parties as of the Third Amendment Effective Date.

VIEWPOINT CORPORATION

By: /s/ Patrick Vogt

Name: Patrick Vogt

Title: CEO

OVERTURE SERVICES, INC.

By: /s/ William Demas

Name: William Demas

Title: SVP & GM, YPS

CONFIDENTIAL

EXECUTION

Contract No. 204081-3

UPDATED EXHIBIT 1-A TO OVERTURE MASTER AGREEMENT

[***]

_________________________

Exhibit 1-A - Page 1

CONFIDENTIAL

EXECUTION

Contract No. 204081-3

UPDATED EXHIBIT 1-B MOCK-UPS

[***]

_________________________

Exhibit 1-B - Page 1

CONFIDENTIAL

EXECUTION

Contract No. 204081-3

UPDATED EXHIBIT 1-C TO OVERTURE MASTER AGREEMENT

The following mock-up represents a standard results page.

[***]

_________________________

Exhibit 1-C - Page 1

CONFIDENTIAL

EXECUTION

Contract No. 204081-3

EXHIBIT 2 TO RIDER A

ERROR IMPLEMENTATION

A.	Definitions.

(a)

Address Bar: the field normally referred to as the address bar, through which a user can enter URLs, and from which Publisher redirects the user to Landing Pages and/or Error Results Pages.

(b)

Error Results: the content of Advertisers served from Overture’s paid marketplace databases in response to Queries from a Search Box, Hyperlinks or Address Bar, which responses are provided for display as sponsored listings. Error Results do not include Web Search Results.

(c)

Error Results Page: a webpage that displays Error Results.

(d)

Hyperlinks: words that are displayed in the form of hyperlinks, that generate a Query when clicked on or used by a User.

(e)

Landing Pages: the webpages hosted by Publisher that display Search Boxes and/or Hyperlinks, as shown in the mockups.

(f)

Query: a search query initiated from the Search Box, Hyperlink or Address Bar.

B.	Error Implementation. [***]

C. Representations, Warranties and Covenants. Publisher represents and warrants that Publisher has the right to redirect each erroneous URL and that such redirection (1) does not violate the intellectual property rights of any third party; (2) does not violate any applicable law; (3) is not subject to any injunction; (4) is not libelous, defamatory, or obscene; and (5) does not violate the policies described below. If any of the foregoing (1)-(5) apply to Publisher’s redirection of a Query from the Address Bar, then Publisher shall not redirect such Query to any webpage associated with Overture, or on which Links or Results are available. Publisher will promptly notify Overture of any claim made or threatened against it concerning its redirection of Address Bar Queries.

D. Overture Rights. Notwithstanding anything in this Agreement to the contrary and without limitation of Overture’s other rights and remedies, Overture may [***].

E. Policies. Overture may change or add to clauses (a) through (f) below in its sole discretion by informing Publisher in writing (email sufficing). [***]

Violations of the policies include but are not limited to misuse of the feed provided by Overture, changes to the mapping determined by Overture’s technology and disapproved implementations of Landing Pages or Error Results Pages.

F. Indemnity. Without limiting Publisher’s other indemnification obligations under this Agreement, Publisher will (a) indemnify, defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against Overture, any Overture Related Party and any Advertiser, [***]; and (b) [***]; provided that, in the case of clause (a) above, Overture promptly notifies Publisher in writing of any such claim, promptly tenders the control of the defense and settlement of any such claim to Publisher (at Publisher’s expense and with Publisher’s choice of counsel), and cooperates fully with Publisher (at Publisher’s request and expense) in defending or settling such claim, including but not limited to providing any information or materials necessary for Publisher to perform the foregoing. Publisher will not enter into any settlement or compromise of any such claim without Overture’s prior consent (which will not be unreasonably withheld or delayed).

G. Misc. In the event of a conflict between the terms of this Error Implementation Exhibit and any other provision of the Agreement, the terms of this Error Implementation Exhibit will govern as to Error Results. In the event that any applicable law or regulation contains more stringent requirements than this Error Implementation Exhibit, Publisher will inform Overture and will comply with the more stringent requirement.

_________________________

Exhibit 2 – Page 1

CONFIDENTIAL

EXECUTION

Contract No. 204081-3

ERROR RESULTS MOCK-UPS

[***]

_________________________

Exhibit 2 – Page 2

CONFIDENTIAL

EXECUTION

Contract No. 204081-3

EXHIBIT 6

[***]

_________________________

Exhibit 6 – Page 1

CONFIDENTIAL

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