<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
/X/ Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the quarterly period ended September 30, 1996
/ / Transition Report Pursuant to Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the transition period from to
---- ----
Commission File Number 0-28018
YAHOO! INC.
(Exact name of Registrant as specified in its charter)
California 77-0398689
-------------------------------------- -------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3400 Central Expressway
Suite 201, Santa Clara, California 95051
----------------------------------------
(Address of principal executive offices)
(408) 731-3300
---------------------------
(Issuer's telephone number)
Check whether the issuer (1) has filed all reports required by Section 13
or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the issuer was required to file such reports)
and (2) has been subject to such filing requirements for the past 90 days:
YES /X/ NO / /
There were 26,519,181 shares of the issuer's Common Stock outstanding as of
November 5, 1996.
Page 1 of 16 Total Pages
Exhibit Index at Page 16
<PAGE>
YAHOO! INC.
INDEX
PART I. FINANCIAL INFORMATION PAGE NO.
Item 1. Consolidated Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets
September 30, 1996 and December 31, 1995 3
Condensed Consolidated Statements of Operations
Three months ended September 30, 1996 and 1995;
Nine months ended September 30, 1996 and 1995 4
Condensed Consolidated Statements of Cash Flows
Nine months ended September 30, 1996 and 1995 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 14
Item 2. Changes in Securities 14
Item 3. Defaults Upon Senior Securities 14
Item 4. Submission of Matters to a Vote of Security Holders 14
Item 5. Other Information 14
Item 6. Exhibits and Reports on Form 8-K 14
Signatures 15
2
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
YAHOO! INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
September 30, December 31,
1996 1995
--------------- -------------
<S> <C> <C>
ASSETS (Unaudited)
Current assets:
Cash and cash equivalents $27,708,000 $5,297,000
Short-term investments 58,747,000 -
Accounts receivable, net 3,101,000 815,000
Prepaid expenses 651,000 -
--------------- -------------
Total current assets 90,207,000 6,112,000
Long-term investments 14,330,000 -
Property and equipment, net 1,621,000 186,000
Investment in unconsolidated joint venture 729,000 -
--------------- -------------
$106,887,000 $6,298,000
--------------- -------------
--------------- -------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $1,211,000 $ 20,000
Accrued expenses and other current liabilities 3,044,000 491,000
Deferred revenue 279,000 174,000
Due to related party 163,000 35,000
Current portion of lease obligations - 31,000
--------------- -------------
Total current liabilities 4,697,000 751,000
Lease obligations - 97,000
Minority interests in consolidated subsidiaries 284,000 -
Shareholders' equity:
Series A Convertible Preferred Stock - 5,000
Series B Convertible Preferred Stock - 3,000
Common Stock 99,000 -
Additional paid-in capital 104,871,000 6,076,000
Accumulated deficit (3,064,000) (634,000)
--------------- -------------
Total shareholders' equity 101,906,000 5,450,000
--------------- -------------
$106,887,000 $6,298,000
--------------- -------------
--------------- -------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE>
YAHOO! INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
------------------------------- --------------------------------
September 30, September 30, September 30, September 30,
1996 1995 1996 1995 (a)
------------- ------------ -------------- ------------
<S> <C> <C> <C> <C>
Net revenues $5,515,000 $288,000 $10,522,000 $288,000
Cost of revenues 1,038,000 45,000 1,725,000 71,000
------------- ------------ -------------- ------------
Gross profit 4,477,000 243,000 8,797,000 217,000
Operating expenses:
Sales and marketing 4,015,000 275,000 8,165,000 335,000
Product development 1,362,000 66,000 2,729,000 84,000
General and administrative 1,673,000 277,000 2,922,000 539,000
------------- ------------ -------------- ------------
Total operating expenses 7,050,000 618,000 13,816,000 958,000
------------- ------------ -------------- ------------
Loss from operations (2,573,000) (375,000) (5,019,000) (741,000)
Investment income, net 1,262,000 4,000 2,423,000 15,000
Minority interests in losses from operations
of consolidated subsidiaries 166,000 - 166,000 -
------------- ------------ -------------- ------------
Net loss ($1,145,000) ($371,000) ($2,430,000) ($726,000)
------------- ------------ -------------- ------------
------------- ------------ -------------- ------------
Net loss per share ($0.04) ($0.02) ($0.10) ($0.03)
------------- ------------ -------------- ------------
------------- ------------ -------------- ------------
Shares used in computing net loss per share 26,504,000 22,541,000 24,093,000 22,541,000
</TABLE>
(a) Includes the Company's results from March 5, 1995 (inception) through
September 30, 1995.
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
YAHOO! INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months Ended
-------------------------------
September 30, September 30,
1996 1995 (a)
-------------- -------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss ($2,430,000) ($726,000)
Adjustments to reconcile net loss to net cash used
in operating activities:
Depreciation and other noncash charges 441,000 96,000
Minority interests in losses from operations
of consolidated subsidiaries (166,000) -
Changes in assets and liabilities:
Accounts receivable, net (2,286,000) (117,000)
Prepaid expenses (651,000) -
Accounts payable and accrued liabilities 3,872,000 96,000
Deferred revenue 105,000 35,000
-------------- -------------
Net cash used in operating activities (1,115,000) (616,000)
-------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of property and equipment, net (1,759,000) (115,000)
Purchase of investments, net (73,077,000) -
Investment in unconsolidated joint venture (729,000) -
-------------- -------------
Net cash used by investing activities (75,565,000) (115,000)
-------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of stock, net 98,769,000 1,003,000
Proceeds from minority investors 450,000 -
Repayment of lease obligations (128,000) -
-------------- -------------
Net cash provided by financing activities 99,091,000 1,003,000
-------------- -------------
Net change in cash and cash equivalents 22,411,000 272,000
Cash and cash equivalents at beginning of period 5,297,000 -
-------------- -------------
Cash and cash equivalents at end of period $27,708,000 $272,000
-------------- -------------
-------------- -------------
</TABLE>
(a) Includes the Company's results from March 5, 1995 (inception) through
September 30, 1995.
The accompanying notes are an integral part of these financial statements.
5
<PAGE>
YAHOO! INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - THE COMPANY AND BASIS OF PRESENTATION:
Yahoo! Inc. (the "Company") develops and maintains YAHOO!, a branded
Internet navigational service that is among the most widely used guides for
information and discovery on the World Wide Web. The Company was incorporated
in California on March 5, 1995 and commenced operations on that date.
The consolidated financial statements include the accounts of Yahoo! Inc.
and its majority-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated. Investments in entities owned 20% or more
but less than majority owned and not otherwise controlled by the Company are
accounted for under the equity method.
The accompanying unaudited condensed consolidated financial statements
reflect all adjustments which, in the opinion of management, are necessary for a
fair presentation of the results for the periods shown. The results of
operations for such periods are not necessarily indicative of the results
expected for the full fiscal year or for any future period.
These financial statements should be read in conjunction with the financial
statements and related notes included in the Company's Registration Statement on
Form SB-2 (No. 333-2142-LA), including the related Prospectus dated April 12,
1996 (the "Registration Statement"). Certain prior period balances have been
reclassified to conform with current period presentation.
NOTE 2 - INVESTMENTS:
The Company invests certain of its excess cash in debt instruments of the
U.S. Government, its agencies, and of high quality corporate issuers. All
highly liquid instruments with an original maturity of three months or less are
considered cash equivalents; those with original maturities greater than three
months are considered short-term investments and those with maturities greater
than twelve months from the balance sheet date are considered long-term
investments. The Company has adopted Statement of Financial Accounting
Standards No. 115, "Accounting for Certain Investments in Debt and Equity
Securities" (FAS 115) and, accordingly, classifies investment securities as
held-to-maturity, trading, or available-for-sale.
6
<PAGE>
YAHOO! INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
At September 30, 1996, short-term and long-term investments consisted
primarily of corporate debt securities and debt instruments of the U.S.
Government and U.S. Government agencies and were classified as
available-for-sale. At December 31, 1995, the Company did not hold any
short-term or long-term investments. Unrealized holding gains at September 30,
1996 were not significant.
On April 1, 1996, the Company signed a joint venture agreement with
SOFTBANK Corporation, a 36% owner of the Company, whereby Yahoo! Japan
Corporation was formed to establish and manage in Japan a Japanese version of
the YAHOO! Internet Guide, develop related Japanese on-line navigational
services, and conduct other related business. The Company's share of the joint
venture is 40% and is being accounted for using the equity method.
NOTE 3 - MINORITY INTERESTS IN CONSOLIDATED SUBSIDIARIES:
On August 26, 1996, the Company entered into agreements with Visa
International Service Association and another party to establish a new company,
Yahoo! Marketplace, to develop and operate a navigational service focused on
information and resources for the purchase of consumer products and services
over the Internet. The Company currently owns approximately 53% of the equity
interest in Yahoo! Marketplace (after giving effect to anticipated issuances of
equity to management employees), and therefore, has consolidated the results of
operations, balance sheet, and statement of cash flows. A portion of the
minority interest on the balance sheet represents Visa's interest in the net
assets of Yahoo! Marketplace.
NOTE 4 - SHAREHOLDERS' EQUITY:
On April 12, 1996, the Company completed its initial public offering
of 2,990,000 shares of its Common Stock. Net proceeds to the Company aggregated
approximately $35,000,000. As of the closing date of the offering, all of the
Convertible Preferred Stock and Mandatorily Redeemable Convertible Preferred
Stock outstanding was converted into an aggregate of 12,850,072 shares of Common
Stock.
7
<PAGE>
YAHOO! INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 5 - PER SHARE AMOUNTS:
Net loss per share is computed using the weighted average number of common
shares outstanding during the period. Pursuant to the Securities and Exchange
Commission Staff Accounting Bulletins and Staff Policy, such computations for
periods ending prior to the Company's initial public offering include all common
and common equivalent shares issued during the twelve months prior to the
Initial Public Offering using the treasury stock method. Common equivalent
shares consist of the incremental common shares issuable upon conversion of the
convertible preferred stock (using the if-converted method) and shares issuable
upon the exercise of stock options (using the treasury stock method).
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
THE DISCUSSION IN THIS REPORT CONTAINS FORWARD-LOOKING STATEMENTS THAT
INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS COULD DIFFER
MATERIALLY FROM THOSE DISCUSSED HEREIN. FACTORS THAT COULD CAUSE OR CONTRIBUTE
TO SUCH DIFFERENCES INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED BELOW, AND
THE RISKS DISCUSSED UNDER THE CAPTION, "RISK FACTORS" IN THE REGISTRATION
STATEMENT (A COPY OF WHICH IS AVAILABLE UPON REQUEST FROM THE COMPANY).
OVERVIEW
Yahoo! offers a branded Internet navigational service that is among the
most widely used guides to information and discovery on the World Wide Web (the
"Web"). From March 5, 1995 (Inception) to September 30, 1996, the Company's
operating activities related primarily to recruiting personnel, raising capital,
purchasing operating assets, performing product development and investing in
sales and marketing programs. The Company commenced selling advertisements on
its Web pages and recognized its initial revenues in August 1995.
The Company derives substantially all of its revenues from the sale of
advertisements. Advertising revenues are recognized in the period in which the
advertisement is displayed, provided that no significant Company obligations
remain and collection of the resulting receivable is probable. Company
obligations typically include guarantees of minimum number of "impressions," or
times that any advertisement appears in page views downloaded by users of
YAHOO!. To the extent minimum guaranteed impressions are not met, the Company
defers recognition of the corresponding revenues until guaranteed impression
levels are achieved. Deferred revenue is comprised of billings in excess of
recognized revenue relating to advertising contracts. The Company's revenues
are derived principally from the sale of advertisements on short-term contracts.
The Company's standard rates for advertising currently range from $0.02 to $0.06
per impression. To date, the duration of the Company's advertising commitments
has ranged from one week to one year.
The Company has an extremely limited operating history, and its prospects
are subject to the risks, expenses, and difficulties frequently encountered by
companies in the new and rapidly evolving markets for Internet products and
services. To address these risks, the Company must, among other things,
continue to respond to competitive developments, attract, retain, and motivate
qualified personnel, implement and successfully execute its advertising sales
strategy, develop and market additional media properties, upgrade its
technologies, and commercialize products and services incorporating such
technologies. There can be no assurance that the Company will be successful in
addressing such risks. As of September 30, 1996, the Company had an accumulated
deficit of $3,064,000. Although the Company has experienced revenue growth in
recent periods, there can be no assurance that revenues of the Company will
continue to increase or continue at their current level. The extremely limited
operating history of the Company makes the prediction of future results of
operations difficult or impossible and, therefore, the recent revenue growth
experienced by the Company should
9
<PAGE>
not be taken as indicative of the rate of revenue growth, if any, that can be
expected in the future. The Company believes that period to period comparisons
of its operating results are not meaningful and the results for any period
should not be relied upon as an indication of future performance. The Company
currently expects to significantly increase its operating expenses to expand its
sales and marketing operations, to fund greater levels of product development,
and to develop and commercialize additional media properties. In addition, in
March 1996, the Company entered into an agreement with Netscape Communications
Corporation (Netscape) whereby it has been designated as one of five "Premier
Providers." Under the terms of this agreement, the Company is required to make
payments totaling $5 million over the course of the one year term of this
agreement, which commenced in mid-April 1996. In the future, other leading
Web sites, browser providers, and other distribution channels may also
require payments or other consideration in return for listing YAHOO! or other
online properties of the Company. As a result of these factors, the Company
expects to continue to incur significant losses on a quarterly and annual
basis for the foreseeable future.
As a result of the Company's extremely limited operating history, the
Company does not have historical financial data for any significant period of
time on which to base planned operating expenses. The Company's expense levels
are based in part on its expectations concerning future revenue and to a large
extent are fixed. Quarterly revenues and operating results depend substantially
upon the advertising revenues received within the quarter, which are difficult
to forecast accurately. Accordingly, the cancellation or deferral of a small
number of advertising contracts could have a material adverse effect on the
Company's business, results of operations, or financial condition. The Company
may be unable to adjust spending in a timely manner to compensate for any
unexpected revenue shortfall, and any significant shortfall in revenue in
relation to the Company's expectations would have an immediate adverse effect on
the Company's business, results of operations, and financial condition. In
addition, the Company plans to significantly increase its operating expenses to
expand its sales and marketing operations, to fund greater levels of product
development, and to develop and commercialize additional media properties. To
the extent that such expenses precede or are not subsequently followed by
increased revenues, the Company's business, results of operations, and financial
condition will be materially and adversely affected.
The Company's operating results may fluctuate significantly in the future
as a result of a variety of factors, many of which are outside the Company's
control. These factors include the level of usage of the Internet, demand for
Internet advertising, seasonal trends in both Internet usage and advertising
placements, the advertising budgeting cycles of individual advertisers, the
amount and timing of capital expenditures and other costs relating to the
expansion of the Company's operations, the introduction of new products or
services by the Company or its competitors, pricing changes in the industry,
technical difficulties with respect to the use of YAHOO! or other media
properties developed by the Company, general economic conditions, and economic
conditions specific to the Internet and online media. As a strategic response
to changes in the competitive environment, the Company may from time to time
make certain pricing, service, or marketing decisions or acquisitions that could
have a material adverse effect on the Company's business, results of operations,
and financial condition. The Company
10
<PAGE>
also expects that, in the future, it will experience seasonality in its business
with advertising impressions (and therefore revenues) being lower during the
summer and year-end vacation and holiday periods, when usage of the Web and the
Company's services decline. Additionally, seasonality may also affect the
amount of customer advertising dollars placed with the Company in the first
quarter of a calendar year. Due to all of the foregoing factors, in some future
quarter the Company's operating results may fall below the expectations of
securities analysts and investors. In such event, the trading price of the
Company's Common Stock would likely be materially and adversely affected.
Because the Company was engaged primarily in product development during the
quarter ended September 30, 1995 and the period from inception (March 5, 1995)
to September 30, 1995, and only recognized an insignificant amount of revenues
during these periods, and because of the significant growth in operating
expenses from such periods in 1995 as compared to the same periods of 1996, the
Company believes that a comparison of operating results for the three months
ended September 30, 1995 and the period from inception (March 5, 1995) to
September 30, 1995 versus the three months ended September 30, 1996 and the nine
months ended September 30, 1996, respectively, is not meaningful.
RESULTS OF OPERATIONS
NET REVENUES
Net revenues were $5,515,000 for the quarter ended September 30, 1996. The
revenue increase of 68% from the second quarter ended June 30, 1996 was due
primarily to an increase in the number of advertisers, from 230 in the quarter
ended June 30, 1996 to 340 in the quarter ended September 30, 1996. Many of the
Company's customers purchase advertisements on a short-term basis. There can be
no assurance that customers will continue to purchase advertising on the
Company's Web pages. During the quarter ended June 30, 1996, SOFTBANK Group, a
36% owner of the Company, indicated its intention to purchase directly or
through SOFTBANK affiliates (including companies in which SOFTBANK has invested)
$2,000,000 of advertising during the period ending December 31, 1996. These
purchases commenced in the quarter ended September 30, 1996, and during this
period, SOFTBANK and its affiliates purchased $800,000 of advertisements in
connection with this arrangement at rates which are comparable with other large
customers.
COST OF REVENUES
Cost of revenues consists of the expenses associated with the production
and usage of the Company's online navigational guides. These costs primarily
consist of fees paid to third parties for content included in the guides,
Internet connection charges, equipment depreciation, and compensation. Cost of
revenues were $1,038,000 for the quarter ended September 30, 1996; or 19% of net
revenues. The Company's $518,000 increase in cost of revenues from the quarter
ended June 30, 1996, was primarily attributable to increases in the quantity and
quality of content available on the Company's
11
<PAGE>
online navigational guide YAHOO! and other Internet navigational services, and
increased usage of YAHOO! branded properties and the Company's other Internet
navigational services. As measured in page views (defined as electronic page
displays), the Company delivered an average of over 14 million page views per
day in September 1996, compared with an average of approximately 9 million page
views per day in June of 1996. The Company anticipates that its content and
Internet connection expenses as a percentage of revenue will continue to
increase for the foreseeable future, which may result in lower gross margins as
a percentage of revenue.
OPERATING EXPENSES
The Company's operating expenses have increased significantly since the
Company's inception. This trend reflects the costs associated with the
formation of the Company, the development of infrastructure, and increased
efforts to commercialize the Company's products and services. The Company
believes that continued expansion of its operations is essential to enhance and
extend the YAHOO! main site, establish branded properties in targeted markets,
and expand the Company's user and advertising base. As a consequence, the
Company intends to continue to increase expenditures in all operating areas.
SALES AND MARKETING
Sales and marketing expenses consist primarily of Netscape Preferred
Provider costs, advertising commissions, third party sales commissions,
compensation, television advertising, public relations, travel, and costs of
promotional materials. Sales and marketing expenses were $4,015,000 for the
quarter ended September 30, 1996, or 73% of net revenue. The 22% increase in
sales and marketing expenses from the quarter ended June 30, 1996 was primarily
attributable to a full quarter of Netscape Preferred Provider costs, increased
expenses associated with television ad campaigns, expanding the Company's
advertising sales and product management staffs, and increased commissions as a
result of the increase in advertising revenues in this period. The Company
anticipates that sales and marketing expenses will increase in future periods as
it continues to pursue an aggressive brand building strategy and builds a direct
sales organization.
PRODUCT DEVELOPMENT
Product development expenses consist primarily of employee compensation to
support new product development. Product development expenses were $1,362,000
for the quarter ended September 30, 1996, or 25% of net revenue. The $325,000
increase in product development expenses from the quarter ended June 30, 1996
was primarily attributable to increased staffing and associated costs relating
to enhancing the features and functionality of YAHOO! and other online media
properties. To date, all product development costs have been expensed as
incurred. The Company believes that significant investments in product
development are required to remain competitive. As a consequence, the Company
intends to incur increased product development expenditures in future periods.
12
<PAGE>
GENERAL AND ADMINISTRATIVE
General and administrative expenses consist primarily of compensation and
fees for professional services. General and administrative expenses were
$1,673,000 for the quarter ended September 30, 1996, or 30% of net revenues.
The $911,000 increase in general and administrative expenses from the quarter
ended June 30, 1996 was primarily attributable to increased staffing, fees for
professional services, and costs associated with registering the Company's
trademarks in various countries. The Company believes that the absolute dollar
level of general and administrative expenses will increase in future periods.
INVESTMENT INCOME, NET
Investment income, net of investment expense, was $1,262,000 for the
quarter ended September 30, 1996. The $293,000 increase in interest income, net
of interest expense, from the quarter ended June 30, 1996 was primarily
attributable to a higher average investment balance from public offering
proceeds received in early April 1996.
INCOME TAXES
No provision for federal and state income taxes has been recorded at
September 30, 1996, as the Company expects to incur net losses for the
foreseeable future. Under the Tax Reform Act of 1986, the amounts of and the
benefits from net operating losses may be impaired in certain circumstances.
Events which may cause such limitations in the amount of net operating losses
that the Company may utilize in any one year include, but are not limited to, a
cumulative ownership change of more than 50% over a three year period. At
September 30, 1996, the effect of such limitation, if imposed, is not expected
to be material. The Company has provided a full valuation allowance on deferred
tax assets because of the uncertainty regarding realizability.
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1996, the Company had cash, cash equivalents, and
investments totaling $100,785,000 comprised of $27,708,000 in cash and cash
equivalents, $58,747,000 in short-term investments and $14,330,000 in long-term
investments. The Company has primarily financed its operations through the sale
of equity securities.
The Company currently has no material commitments other than those under
operating leases. The Company has experienced a substantial increase in its
capital expenditures and operating lease arrangements in 1996 consistent with
increased staffing and anticipates that this will continue in the future. The
Company has payments remaining to Netscape through April 10, 1997 of $2,625,000.
The Company believes that current cash balances and short-term investments will
be sufficient to fund its working capital and capital expenditures requirements
for at least the next twelve months. Thereafter, the Company may sell
additional equity or debt securities or obtain credit facilities. The sale of
additional equity or convertible debt securities will result in additional
dilution to the Company's shareholders.
13
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
From time to time the Company has been, and expects to continue to be,
subject to legal proceedings and claims in the ordinary course of its business,
including claims of alleged infringement of the trademarks and other
intellectual property rights of third parties by the Company and its licensees.
Such claims, even if not meritorious, could result in the expenditure of
significant financial and managerial resources. Although the Company cannot
predict the outcome of any proceeding, the Company is not currently aware of any
legal proceedings or claims that the Company believes will have, individually or
in the aggregate, a material adverse effect on the Company's financial position
or results of operations.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. The exhibits listed in the accompanying Index to Exhibits are filed as
part of this Report on Form 10-Q.
b. No reports on Form 8-K were filed by the Company during the period
covered by this Report on Form 10-Q.
14
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant has
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
YAHOO! INC.
Dated: November 14, 1996 By: /s/ Gary Valenzuela
-------------------------------
Senior Vice President, Finance
and Administration, and Chief
Financial Officer
(Principal Financial Officer)
Dated: November 14, 1996 By: /s/ James J. Nelson
-------------------------------
Corporate Controller
(Principal Accounting Officer)
15
<PAGE>
YAHOO! INC.
INDEX TO EXHIBITS
Exhibit
Title No.
- ----- ---
Yahoo! Marketplace Limited Liability .......................................10.1
Company Agreement dated August 26,
1996 by and between Yahoo! Inc.,
Visa Marketplace Inc., and Sterling
Payot Capital, L.P.
Yahoo! Marketplace Operating ...............................................10.2
Agreement dated August 26, 1996
by and between Yahoo! Marketplace,
Yahoo! Inc., and Visa International
Service Association
Computation of Net Loss Per Share ............................................11
Financial Data Schedule ......................................................27
16
<PAGE>
YAHOO! MARKETPLACE, L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is made and
entered into as of August 26, 1996 (the "Effective Date"), by and among
Yahoo! Inc., a California corporation ("Yahoo"), and the other persons whose
names are set forth in SCHEDULE 1 hereto. Capitalized terms not otherwise
defined herein are defined in Section 1.9.
WHEREAS, the Members desire to form a Delaware limited
liability company on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the Members hereby agree as follows:
ARTICLE I
FORMATION OF COMPANY
1.1 FORMATION. The Members hereby form the Company pursuant
to the Delaware Limited Liability Company Act (6 Del. Code Sections 18-101 ET
SEQ.) (the "Act"), which Act shall govern the rights and liabilities of the
Members except as otherwise herein expressly stated.
1.2 NAME OF THE COMPANY. The name of the Company is Yahoo!
MarketPlace, L.L.C., a Delaware limited liability company.
1.3 FILINGS, OTHER ACTIONS. Yahoo has caused to be filed a
Certificate of Formation (the "Certificate") with the office of the Secretary
of State of Delaware. The Board (as defined below) shall take all other
actions which may be necessary or appropriate from time to time to comply
with all requirements of law for the formation and operation of a limited
liability company and to ensure the limited liability of the Members in the
State of Delaware and all jurisdictions where the Company may elect to do
business.
1.4 PLACE OF BUSINESS. The principal place of business for
the Company initially shall be at 635 Vaqueros Avenue, Sunnyvale, CA 94086;
provided, however, that the Board may change the address of the principal
office by notice in writing to all the Members. In addition, the Company may
maintain such other offices and places of business as the Board may deem
advisable.
1.5 TERM. The Company shall continue in effect perpetually,
subject to earlier termination in accordance with the provisions of this
Agreement.
1.6 PURPOSES AND POWERS.
(a) Subject to the provisions of this Agreement, the
purposes of the Company shall be to provide on-line services and related
products and services targeted to individual and business consumers located
within the United States and its territories, as well as any and all
activities necessary or incidental thereto.
<PAGE>
(b) The Company shall have all powers necessary,
suitable or convenient for the accomplishment of its purposes.
(c) Nothing set forth herein shall be construed as
authorizing the Company to possess any purpose or power, or to do any act or
thing, forbidden by law to a limited liability company organized under the
laws of the State of Delaware.
1.7 DELAWARE OFFICE; AGENT FOR SERVICE OF PROCESS. The
Company's agent for service of process in the State of Delaware shall be c/o
The Prentice-Hall Corporation System, Inc., 32 Loockerman Square, Suite L100,
Dover, County of Kent, Delaware. The name of the registered agent for
service of process on the Company is The Prentice-Hall Corporation System,
Inc. The Board may designate a different agent for service of process at any
time, provided, however, that the Board shall give all of the Members written
notice promptly following such change.
1.8 TITLE TO COMPANY PROPERTY. All property owned by the
Company, whether real or personal, tangible or intangible, shall be owned by
the Company as an entity, and no Member individually nor any other person,
partnership, corporation or other entity shall have any ownership interest in
such property.
1.9 DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings ascribed to them below. Capitalized
terms defined in the Operating Agreement and not otherwise defined herein
shall have the meanings ascribed to them in the Operating Agreement.
(a) "ACT" shall mean the Delaware Limited Liability
Company Act, 6 Del. Code Sections 18-101 ET SEQ.
(b) "AFFILIATES" shall mean Subsidiaries and Related
Entities and with respect to VMI, Visa International Service Association. A
"Subsidiary" shall mean a company in which on a class-by-class basis, more
than fifty percent (50%) of the stock entitled to vote for the election of
directors is owned or controlled by a party, but only so long as such
ownership or control exists. For Visa and VMI, a "Related Entity" shall mean
an entity (A) at least fifty percent (50%) of whose stock or other equity is
owned collectively by Visa Members and that has the authority to process Visa
payment transactions, but only so long as such ownership exists; (B) has an
equity interest in Visa and is owned in whole collectively by Visa Members or
financial institutions (E.G., national or regional group members); or (C) is
exclusively managed by Visa or a national or group member of Visa for the
purpose of processing Visa payment transactions, but only so long as such
exclusive management exists. Notwithstanding anything to the contrary set
forth above, however, Subsidiaries or Related Entities do not include any
individual Visa Member, bank or like financial institution. Visa Affiliates
include, for example, without limitation, Visa USA, Inc., Vital, Inc., Plus
and Interlink.
(c) "AGREEMENT" shall mean this Limited Liability
Company Agreement, as the same may be amended from time to time (including by
the addition of Counterparts).
-2-
<PAGE>
(d) "APPROVAL" shall mean consent by the Members to an
action by the affirmative vote of Members holding a majority of the
Percentage Interests in the Company entitled to vote with respect to such
matter, or such other Percentage Interests as may be expressly stated herein,
which vote may be obtained either at a meeting of Members duly noticed (to
the address of each Member shown on the Company's records at least ten (10)
days prior to the date set forth in such notice) or by a written consent
executed and delivered by such Members; provided, however, that if Approval
is obtained by written consent, the Company must send written notice of the
action so taken to each non-consenting Member within three (3) days after the
taking of such action. The failure of the Company to provide such written
notice to the non-consenting Members shall not invalidate the action so taken
so long as such failure was inadvertent.
(e) "BANKRUPTCY" shall mean with respect to any person,
being the subject of an order for relief under Title 11 of the United States
Code, or any successor statute in any foreign jurisdiction having like import
or effect, or that such person shall have made an assignment for the benefit
of its creditors generally or a receiver shall have been appointed for
substantially all of the property and assets of such person.
(f) "BOARD" shall mean the Board of Managers of the
Company, designated in accordance with Section 3.1.
(g) "BOOK VALUE" shall mean, as of any particular date,
the value at which the Company's assets are properly reflected on the books
of the Company as of such date in accordance with the provisions of Treasury
Regulations Section 1.704-1(b). The Book Values of all Company assets shall,
if the Board in its sole discretion deems it appropriate, be adjusted to
equal their respective gross fair market values, as determined by the Board,
at the times specified in those regulations.
(h) "CAPITAL ACCOUNT" shall mean the individual capital
account of a Member maintained in accordance with Section 2.5 hereof.
(i) "CAPITAL CONTRIBUTION" shall have the meaning set
forth in Section 2.2 hereof.
(j) "CERTIFICATE" shall have the meaning set forth in
Section 1.3 hereof.
(k) "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
(l) "COMPANY" shall mean Yahoo! MarketPlace, L.L.C., a
Delaware limited liability company organized pursuant to this Agreement.
(m) "COMPETITOR" shall mean, with respect to any party
to this Agreement, an entity that would reasonably be determined to be
involved in any substantial way in a business that is directly competitive in
any territory with the primary business of such party, whether directly or
indirectly, including (without limitation) as a partner, joint venturer or
owner of more than ten (10%) of the voting power of such competitive entity.
-3-
<PAGE>
(n) "COUNTERPART" shall mean an additional document
executed and delivered by (i) any new Member admitted to membership in the
Company after the original date of this Agreement, and (ii) such existing
Members having the right under this Agreement to approve the admission of
such new Member, which document shall set forth the new Member's Percentage
Interest, the resulting Percentage Interests of all other Members, and any
other terms and conditions as shall apply to such Members membership in the
Company. Each Counterpart shall be attached to, and shall become part of,
this Agreement.
(o) "DISTRIBUTABLE CASH" shall mean, with respect to
each fiscal year of the Company, the Company's cash flow from operations for
such fiscal year, as reflected in financial statements audited by the
Company's independent public accountants, after providing for reserves that
are determined by the Board to be required to fund ongoing development,
marketing, operations and capital expenditures of the Company in accordance
with the Operating Plan, and after deducting any amounts determined by the
Board to be subject to any contingency.
(p) "FOUNDERS" shall mean, collectively, Yahoo and each
member of the Visa Group.
(q) "MANAGEMENT POOL" shall mean the Percentage Interest
granted to executives of the Company by the Board as non-cash compensation,
which in no event shall exceed cumulatively and in the aggregate eight
percent (8%) of the Percentage Interests outstanding on the date of the first
grant of Percentage Interests to executives of the Company pursuant to
Section 7.3 hereof. The creation of the Management Pool shall reduce the
respective Percentage Interests of each of the Visa Group and Yahoo in equal
amounts. For example, if the full eight percent (8%) of the then outstanding
Percentage Interests is granted to executives of the Company, each of Yahoo's
and the Visa Group's respective Percentage Interest shall be reduced by four
percent (4%).
(r) "MANAGER" shall mean a person appointed to the Board
of Managers in accordance with Section 3.1.
(s) "MEMBER" shall mean Yahoo, each member of the Visa
Group and each other person admitted to membership in the Company whose
names, Capital Contributions and Percentage Interests are set forth on
SCHEDULE 1 hereto and all Counterparts.
(t) "OPERATING AGREEMENT" shall mean that certain
Operating Agreement dated as of even date herewith between the Company, Yahoo
and Visa.
(u) "OPERATING PLAN" shall mean the Operating Plan for
the Company which has been approved by the Board as the same may be amended
from time to time as set forth herein, which Operating Plan shall be updated
no less frequently than once each calendar year.
(v) "PERCENTAGE INTEREST" shall have the meaning set
forth in Section 2.1 hereof.
-4-
<PAGE>
(w) "PROFIT" OR "LOSS" shall mean for each taxable year,
the Company's taxable income or taxable loss for such taxable year, as
determined under Section 703(a) of the Code and Section 1.703-1 of the
Treasury Regulations (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Section 703(a)(1) of
the Code shall be included in taxable income or taxable loss), but with the
following adjustments: (i) any tax-exempt income or Company expenditures
described in Section 705(a)(2)(B) of the Code shall be taken into account in
computing such taxable income or taxable loss; (ii) any item of income or
gain required to be allocated specially to a Member under Section 6.2 hereof
shall not be taken into account in computing such taxable income or taxable
loss; and (iii) in lieu of the depreciation, amortization, gain or loss taken
into account in computing such taxable income or loss, the Company shall
compute such items based on the Book Value of Company property rather than
its tax basis, in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv)(g)(3).
(x) "TAX DISTRIBUTIONS" shall mean an amount equal to
(a) the combined effective federal and California maximum corporate income
tax rates in effect for such fiscal year (taking into account the
deductibility of state taxes against federal taxable income, currently 41%),
multiplied by (b) the amount by which the Company Profit (other than income
and gain referred to in Section 6.6 hereof) allocated to such Member for such
fiscal year exceeds the cumulative net Company Loss (if any) allocated to
such Member since the inception of the Company.
(y) "TAX MATTERS PARTNER" has the meaning set forth in
Section 5.6.
(z) "TREASURY REGULATIONS" shall mean the Income Tax
Regulations issued by the Department of the Treasury.
(aa) "VISA" shall mean Visa International Service
Association, a Delaware corporation.
(bb) "VISA GROUP" shall mean VMI, Sterling Payot Capital,
L.P. and their permitted assignees.
(cc) "VISA OWNERSHIP PERIOD" shall mean the period
commencing with the Effective Date and ending on the later to occur of (i)
the date the Visa Group holds, in the aggregate, less than [REDACTED]* of all
then outstanding Percentage Interests; or (ii) the date on which the Visa
Brand Features are no longer used in the Service.
(dd) "VMI" shall mean Visa Marketplace, Inc., a Delaware
corporation, a wholly-owned subsidiary of Visa.
* Confidential treatment requested. Omitted portion filed
separately with the Commission.
-5-
<PAGE>
ARTICLE II
CAPITAL CONTRIBUTIONS
2.1 PERCENTAGE ECONOMIC INTERESTS. Each Member shall have an
undivided percentage economic interest in the Company, including, except as
may otherwise be provided in Article VI hereof, each item of income, gain,
loss, deduction, credit and distributions of the Company (a "Percentage
Interest"), equal to the percentage set forth next to such Member's name on
SCHEDULE 1 of this Agreement (or, after admission of new Members, on the most
recently adopted Counterpart).
2.2 CAPITAL CONTRIBUTIONS.
(a) Upon execution of this Agreement, the Founders have
contributed to the Company cash in the respective amounts set forth on
SCHEDULE 1. The Founders have agreed at the time of such contribution their
respective initial Capital Accounts (as defined below) were equal to the
amount of such contributions, subject to adjustment upon the events described
in this Agreement. The contributions made by the Founders under this Section
2.2, and the subsequent contributions of cash capital by Members to the
Company under Section 2.4, are hereafter referred to as "Capital
Contributions."
(b) In event that following the execution of this
Agreement the Board from time to time determines that the Company requires
additional funding (in light of the financial criteria set forth in the
Operating Plan), the Members will, within ten (10) days following notice from
the Company (which notice shall include a certified resolution of the Board
approving such funding), make additional Capital Contributions in cash in the
amount set forth in such notice, which shall be made in proportion to their
Percentage Interest; provided that the aggregate additional Capital
Contributions required by the Board shall not exceed two million dollars
($2,000,000) from all Founders, unless a higher amount receives the unanimous
approval of the Founders who hold any of the then outstanding Percentage
Interest.
2.3 MEMBER ADVANCES. In addition to the Capital
Contributions provided for under Section 2.2 and without limiting the
provisions of Section 2.4, the Members may, if the Board in its discretion
deems it appropriate, make cash advances in such amounts and upon such
commercially reasonable repayment, interest and other terms as the Board and
the Member providing such advance shall agree; provided, however, that during
the Visa Ownership Period, such advances shall not be made without Visa's
prior written consent. Any such cash advances shall be treated as loans to
the Company rather than Capital Contributions and shall therefore not affect
a Member's Capital Account.
2.4 ADDITIONAL CAPITAL CONTRIBUTIONS. The Board may admit
additional Members and accept additional Capital Contributions from such
additional Members or from existing Members from time to time and on such
commercially reasonable terms as the Board deems appropriate;
-6-
<PAGE>
provided, however, that during the Visa Ownership Period, the Board must
obtain Visa's written consent prior to taking any such action unless (i) Visa
has been notified of the material terms of the issuance of Percentage
Interests in such transaction, and VMI and Sterling Payot Capital, L.P. have
the right exercisable within twenty (20) days following such notice to
purchase a portion of such new Percentage Interests (on the terms set forth
in the notice) up to an amount sufficient for each of VMI and Sterling Payot
Capital, L.P. respectively to maintain the amount of its total Percentage
Interest immediately preceding such transaction, and (ii) if Yahoo or Yahoo's
Affiliates are the only purchasers of such additional Percentage Interests,
the material terms of such transaction have been determined in good faith by
an independent third party appraiser or investment bank to be fair from a
financial point of view to the Company and the Members (other than Yahoo).
No Member shall be obligated to make any other Capital Contributions, and no
Member shall make any such further Capital Contributions except as otherwise
provided in this Article II.
2.5 CAPITAL ACCOUNTS.
(a) A separate capital account (a "Capital Account")
shall be maintained for each Member strictly in accordance with the rules set
forth in Treasury Regulations Section 1.704-1(b)(2)(iv). Subject to the
preceding sentence, each Member's Capital Account shall be (i) increased by
the amount of Capital Contributions made by such Member to the Company and
allocations to such Member of Company Profits and other items of book income
and gain; and (ii) decreased by the amount of money and fair market value of
property (net of liabilities secured by such distributed property that such
Member is considered to assume or take subject to under Section 752 of the
Code) distributed to it by the Company and allocations to such Member of
Company Loss and other items of book loss and deductions; and (iii) otherwise
adjusted in accordance with the additional rules set forth in Treasury
Regulations Section 1.704-1(b)(2)(iv).
(b) In the event the Book Values of Company assets are
adjusted pursuant to Treasury Regulations Section 1.704-1(b) and Section
1.9(g), the Capital Accounts of all Members shall be adjusted simultaneously
to reflect the allocations of income, gain, loss or deduction that would be
made to the Members if there were a taxable disposition of the Company's
property for its fair market value. If any assets of the Company are to be
distributed in kind, such assets shall be distributed on the basis of their
fair market values after the Members' Capital Accounts have been adjusted to
reflect the manner in which any unrealized income gain, loss or deduction
with respect to such assets (that have not been reflected in the Capital
Accounts previously) would be allocated between the Members if there were a
taxable disposition of the property for its fair market value.
(c) If any interest in the Company is transferred in
accordance with the provisions of this Agreement, the transferee Member shall
succeed to that portion of the Capital Account of the transferring Member as
relates to such transferred interest.
(d) It is the intent of the Company that the Capital
Accounts of all Members be determined and maintained in accordance with the
principles of Treasury Regulations
-7-
<PAGE>
Section 1.704-1 at all times throughout the full term of the Company and the
foregoing provisions of this Section 2.5 shall be interpreted in accordance
with such intention.
2.6 RETURN OF CAPITAL; PARTITION. Except as otherwise
provided herein, no Member shall have any right to (a) withdraw from the
Company, (b) demand the return of all or any part of such Member's Capital
Account during the term of the Company or (c) receive a return of such
Member's Capital Account from any specific assets of the Company. Each
Member irrevocably waives any right which such Member may have to cause a
partition of all or any part of the Company's assets. No Member shall be
entitled to receive any interest with respect to a Capital Contribution.
2.7 LIABILITY OF MEMBERS. Notwithstanding anything to the
contrary herein contained, no Member shall be liable for any debts, expenses,
liabilities or obligations of the Company except as otherwise agreed in
writing by such Member or as provided by law.
ARTICLE III
MANAGEMENT OF COMPANY
3.1 BOARD OF MANAGERS.
(a) The Board shall consist of five (5) persons, or such
higher number of persons determined by Approval of seventy five percent (75%)
of all then outstanding Percentage Interests; provided, however, that during
the Visa Ownership Period, the number of authorized members of the Board may
not be increased without Visa's prior written consent. Each of the directors
shall be appointed, and shall serve at the pleasure of, the holders of a
majority in interest of all Percentage Interests; provided that, during the
Visa Ownership Period, the members of the Board of Directors shall be
determined as follows:
(i) Two (2) Managers shall be appointed by, and
shall serve at the pleasure of, Yahoo;
(ii) Two (2) Managers shall be appointed by Visa and
shall serve at the pleasure of Visa; provided that each director appointed by
Visa shall be a full-time employee of Visa; and
(iii) One (1) Manager shall be appointed by, and
shall serve at the pleasure of, Yahoo, subject to the approval of Visa, which
approval shall not be unreasonably withheld.
(b) Board actions shall be valid only if made (i) at a
meeting held in person or by conference telephone upon at least three (3)
business days' prior notice (by telephone, courier or electronic mail
confirmed by courier), at which at least a majority of all Managers
(including any temporary alternate for a Manager who is reasonably acceptable
to a majority of the remaining Managers) then in office are present and a
majority of those Managers present at the meeting approve the Board action;
or (ii) by a writing signed by at least four (4) Managers
-8-
<PAGE>
(including during the Visa Ownership Period at least one (1) Manager
appointed by Visa, if at such time Visa has an appointee on the Board). Such
actions, when evidenced in a writing certified by any person appointed to
serve as Secretary or Chairman of the Board of the Company may be relied upon
by third parties for all purposes in respect of their dealings with the
Company.
After the Visa Ownership Period and thereafter so long as
Visa or any of its Affiliates shall own any of the total outstanding
Percentage Interests, Visa shall be entitled to appoint one (1) Manager, to
serve at the pleasure of Visa.
3.2 CONTROL BY BOARD. Subject to the provisions of Section
3.3, and except as may be otherwise expressly stated in this Agreement, the
Board shall have full and exclusive responsibility and authority for the
management, supervision and conduct of the business and affairs of the
Company and the Board is hereby granted the right, power and authority to do
on behalf of the Company all things determined thereby to be necessary or
desirable to carry out such duties and responsibilities, including (without
limitation) the right, power and authority from time to time to do the
following:
(a) to borrow money in the name and on behalf of the
Company, and to secure any such loans by a mortgage, pledge or other
encumbrance upon any assets of the Company;
(b) to cause to be paid all amounts due and payable by
the Company to any person or entity;
(c) to employ such agents, employees, managers,
accountants, attorneys, consultants and other persons necessary or
appropriate to carry out the business and affairs of the Company, to delegate
by express Board action any powers of the Board enumerated herein (subject to
the provisions of Section 3.3), and to pay to such persons such fees,
expenses, salaries, wages and other compensation as it shall in its sole
discretion determine;
(d) to pay, extend, renew, modify, adjust, subject to
arbitration, prosecute, defend or compromise, upon such terms as it may
determine and upon such evidence as it may deem sufficient, any obligation,
suit, liability, cause of action or claim, including taxes, either in favor
of or against the Company;
(e) to pay any and all fees and to make any and all
expenditures which it deems necessary or appropriate in connection with the
organization of the Company, the management of the affairs of the Company and
the carrying out of its obligations and responsibilities under this Agreement;
(f) to the extent that funds of the Company are, in the
Board's judgment, not immediately required for the conduct of the Company's
business, temporarily to deposit the excess funds in such bank account or
accounts, or invest such funds in such interest-bearing taxable or nontaxable
investments, as the Board shall deem appropriate;
-9-
<PAGE>
(g) to acquire, prosecute, maintain, protect and defend
or cause to be protected and defended all patents, patent rights, trade
names, trademarks, copyrights and service marks, all applications with
respect thereto and all proprietary information which may be held by the
Company;
(h) to enter into, execute, acknowledge and deliver any
and all contracts, agreements or other instruments necessary or appropriate
to carry on the business of the Company as set forth herein;
(i) to acquire interests in such other entities as the
Board may deem appropriate to conduct the planned business activities of the
Company on such terms as the Board deems in the Company's interests;
(j) to cause to be paid any and all taxes, charges and
assessments that may be levied, assessed or imposed upon any of the assets of
the Company, unless the same are contested by the Company;
(k) to make all elections and decisions of a tax and
accounting nature required or permitted on behalf of the Company, including
without limitation the election provided for by Section 754 of the Code; and
(l) to exercise all other powers conferred by the Act or
other applicable law on, or not prohibited to, a "Manager" of the Company
from time to time (as such term in defined in the Act).
3.3 SPECIAL ACTIONS. During the Visa Ownership Period, the
following actions by the Company shall require approval of at least eighty
percent (80%) of the then number of authorized Managers and the prior written
consent of Visa:
(a) appointment of the Chief Executive Officer of the
Company (or any other officer of the Company exercising such authority);
(b) any sale or transfer of all or substantially all of
the Company's assets to any third party;
(c) any withdrawal of any Member involving the
distribution with respect to such Member's Capital Account;
(d) any dissolution or winding up of the Company;
(e) any merger of the Company with another entity (other
than in connection with any roll-up or similar transaction in which the
substantive economic rights of the Members are not materially adversely
affected and all Members are affected in the same manner);
(f) any amendment or revision to the Operating Plan
including, without limitation, any annual update of the Operating Plan; or
-10-
<PAGE>
(g) any amendment to this Agreement in accordance with
Section 12.8.
Without limiting the foregoing, following the Visa
Ownership Period and thereafter so long as Visa or any of its Affiliates
shall own any of the total outstanding Percentage Interests, the actions
described in (b), (d), (e), (f) and (g) shall require the prior written
consent of Visa; if such action would adversely affect Visa in any manner
materially differently than the other Members.
3.4 EXTENT OF MANAGER'S OBLIGATIONS. Each Manager shall
devote such time and attention to the activities of the Company as are
reasonably necessary and appropriate to carry out the Manager's duties
hereunder. It is expressly acknowledged and understood that the Managers may
also devote time to the affairs of other entities and to other business
activities.
3.5 STANDARD OF CARE; INDEMNIFICATION. No Manager shall be
liable, in damages or otherwise, to the Company or to any of the Members for
any act or omission performed or omitted by such Manager pursuant to the
authority granted by this Agreement, except if such act or omission results
from gross negligence, willful misconduct or bad faith. The Company shall
save, indemnify, defend and hold harmless each Manager to the fullest extent
permitted by the Act, including without limitation, from and against any and
all claims or liabilities of any nature whatsoever, including, but not
limited to, reasonable attorneys' fees, arising out of or in connection with
any action taken or omitted by such Manager pursuant to the authority granted
by this Agreement, except where attributable to the gross negligence, willful
misconduct or bad faith of such Manager or such Manager's agents. Each
Manager shall be entitled to rely on the advice of counsel, public
accountants or other independent experts experienced in the matter at issue,
and any act or omission of such Manager in reliance on such advice shall in
no event subject such Manager to liability to the Company or any Member.
Each Member expressly acknowledges and agrees that other Members (and
Managers who may be related to such Members) may engage in activities
competitive with those of the Company, and may pursue business opportunities
that may also be available to the Company; and except as otherwise provided
herein or in the Operating Agreement or any other agreement among Members,
and except for any liability relating to the misuse or improper disclosure of
the Company confidential or proprietary information, no Member shall have any
liability as a fiduciary or otherwise in connection with the pursuit of such
activities.
3.6 COMPENSATION OF MANAGERS. The Managers shall receive no
other compensation for services to the Company apart from such reimbursement
and rights with respect to Company distributions and allocations of Profits
and Losses as set forth in Article VI.
ARTICLE IV
RIGHTS OF MEMBERS
4.1 NO AUTHORITY TO MANAGE. It is expressly understood that
no Member, in such Member's capacity as such, other than the Managers, shall
take part in the management or control of the business, transact any business
for the Company, have the right to vote on any Company matter, or have the
power to sign for or bind the Company to any agreement or
-11-
<PAGE>
document. Notwithstanding the foregoing, Members may participate in the
management of the Company if and to the extent so contemplated by the terms
of any employment relationship with the Company.
4.2 APPROVAL RIGHTS OF MEMBERS. Notwithstanding Section 4.1
or Article III of this Agreement, the Managers shall not amend the
Certificate in any manner that, if contained in an amendment to this
Agreement or an action described in Section 3.3, would require the Approval
of Members or the separate approval of Visa without first obtaining such
approval. Except as provided in this Section 4.2 or as may be otherwise
expressly provided under this Agreement or the Act, the Members shall not
have the right to approve any other actions or decisions of the Manager with
respect to matters relating to the Company.
4.3 RECORDS OF THE COMPANY. The Company shall make available
for inspection at its principal place of business, upon reasonable request
for purposes reasonably related to the interest of a person as a Member, any
of the following records of the Company: (a) a current list of the full
name, last known business or residence address, Capital Contribution and
Percentage Interests owned by each Member; and (b) such other books and
records as may be required to be provided to the Members pursuant to the Act
or other applicable law. The Members acknowledge that the records of the
Company constitute valuable trade secrets, and any information or records so
obtained or copied shall be kept and maintained in strictest confidence and
shall in no event be disclosed to any other parties without the written
consent of the Company.
ARTICLE V
ACCOUNTING, RECORDS, REPORTS AND MEETINGS
5.1 BOOKS OF ACCOUNTS AND RECORDS. The Company's books and
records and the Certificate shall be maintained at the principal office of
the Company and the Members and their designated representatives shall each
have access thereto at all reasonable times to the extent set forth in
Section 4.3. The books and records shall be kept in accordance with
generally accepted accounting principles applied in a consistent manner by
the Company and shall reflect all transactions and be appropriate and
adequate for the business of the Company.
5.2 FINANCIAL STATEMENTS AND REPORTS. The Company will
provide to the Members financial statements of the Company annually, which
shall be audited by independent auditors of national standing (which may also
be the independent auditors to any Member). The Company also will provide
within ninety (90) days after the end of each fiscal year of the Company a
copy of the Company's federal, state and local income tax or information
returns for such fiscal year and any other information reasonably necessary
for the preparation of the Members' federal and state income tax returns.
5.3 BANK ACCOUNT. Company moneys shall be deposited in the
name of the Company in one or more financial institutions to be designated by
the Board and may be withdrawn on the signatures of such officers of the
Company as the Board may designate from time to time.
-12-
<PAGE>
5.4 FISCAL YEAR. The fiscal year of the Company shall be
from January 1 to December 31, or such other period as may be required by law
or determined by the Board.
5.5 TAX ELECTIONS. The Board, in its sole discretion, shall
determine the Company's accounting methods and conventions under the tax laws
of the United States, the several states and other relevant jurisdictions as
to the treatment of income, gain, loss, deduction and credit of the Company
or any other method or procedure related to the preparation of such tax
returns. The Board, in its sole discretion, may cause the Company to make or
refrain from making any and all elections permitted by such tax laws
(including, without limitation, an election under Section 754 of the Code).
5.6 TAX MATTERS PARTNER. Pursuant to Section 6231(a)(7)(A)
of the Code, the Members hereby designate Yahoo as the Company's "Tax Matters
Partner." As such, for any fiscal year in which the Company is subject to
the provisions of Section 6221, et seq. of the Code, Yahoo is authorized, at
the expense of the Company, to represent the Company and each Member in
connection with all examinations of the Company's affairs by tax authorities,
including resulting administrative and judicial proceedings, and to expend
the funds of the Company for professional services and costs in connection
therewith. The other Members hereby agree to cooperate with the Manager and
to do or refrain from doing any and all acts reasonably required by the
Manager in connection with any such proceedings. Yahoo will at all times act
in accordance with the direction of the Board with respect to decisions to be
made by the Tax Matters Partner.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
6.1 ALLOCATIONS OF COMPANY PROFITS AND LOSSES. Company
Profits and Losses for each fiscal year shall be allocated in proportion to
the Members' Percentage Interests.
6.2 SPECIAL ALLOCATIONS.
(a) If the Company ever has "partnership minimum gain"
or "partner minimum gain" (as defined by Treasury Regulations Section
1.704-2), then the rules of such Regulations regarding allocation and
chargebacks of such items shall apply.
(b) All deductions, losses, and Code Section
705(a)(2)(B) expenditures of the Company, as the case may be, that are
treated under Treasury Regulations Section 1.704-2(b) as attributable to
"partner nonrecourse debt" of the Company shall be allocated to the Members
bearing the risk of loss with respect to such liabilities in accordance with
such Treasury Regulations.
(c) If any Member unexpectedly receives an adjustment,
allocation, or distribution described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) which creates or increases a deficit in
such Member's Capital Account in excess of such Member's share of partnership
minimum gain and partner minimum gain (as determined under Treasury
-13-
<PAGE>
Regulations Section 1.704-2), if any, such Member shall be allocated items of
book income and gain in an amount and manner sufficient to eliminate or to
reduce, as quickly as possible, such deficit. For purposes of this Section
6.2(c), Capital Accounts shall be adjusted hypothetically as provided for in
Treasury Regulations Section 1.704-(b)(2)(ii)(d). The Members intend that
the provision set forth in this Section 6.2(c) shall constitute a "qualified
income offset" as described in such section of the Treasury Regulations and
this Section 6.2(c) shall be interpreted consistent with such intention.
6.3 TIME OF ALLOCATIONS. The Profit, Loss and other items of
the Company for each fiscal year shall be allocated to the Members' Capital
Accounts at the end of such fiscal year in accordance with the provisions of
Sections 6.1 and 6.2.
6.4 DISTRIBUTIONS.
(a) Tax Distributions shall be distributed to each
Member within ninety (90) days after the end of each fiscal year. Tax
Distributions to each Member under this subsection (a) shall be credited
against and shall reduce by a corresponding amount the next distributions to
which such Partner otherwise would be entitled under subsection (b) and
subsection (c) of this Section 6.4.
(b) To the extent that, after giving effect to Section
6.4(a), the Company has additional Distributable Cash for any fiscal year
commencing with the fiscal year ending December 31, 1996, such Distributable
Cash will be distributed to the Members in proportion to their respective
Percentage Interests within ninety (90) days following the end of such fiscal
year.
(c) Without limiting Section 6.4(a) or Section 6.4(b),
the Board, in its discretion, may, but shall not be obligated to, cause the
Company to distribute such other amounts, whether in cash or in kind, as the
Board may from time to time deem advisable. Distributions made pursuant to
this Section 6.4(c) shall be made to the Members in proportion to their
Percentage Interests at the time of such distribution.
(d) The Company shall withhold all such amounts as may
be required by law and any amounts so withheld shall be deemed to have been
distributed under this Section 6.4 to the Member with respect to whom such
withholding obligation arose and, to the extent such amounts exceed the
amount such Member would have otherwise received, shall be counted towards
and reduce by a corresponding amount, future distributions to such Member.
If any sums are withheld with respect to a Member, the Company shall remit
the sums so withheld to and file the required forms with the Internal Revenue
Service or other applicable government agency, and in the event of any
claimed over-withholding, the Member shall be limited to an action against
such government agency for refund and hereby waives any claim or right of
action against the Company on account of such withholding.
(e) Notwithstanding any other provision herein, no
distribution shall be made to the Members which would render the Company
insolvent.
-14-
<PAGE>
6.5 TAX RETURN. The Company shall, within ninety (90) days
after the end of each calendar year, file a federal income tax information
return and transmit to each Member a copy of such return and a schedule
(Schedule K-1 or successor schedule) showing such Member's distributive share
of the Company's income, deductions and credits.
6.6 ALLOCATION OF CERTAIN TAX ITEMS. If any property of the
Company is reflected in the Capital Accounts of the Members and on the books
of the Company at a Book Value that differs from the adjusted tax basis of
such property, then the tax items with respect to that property shall, in
accordance with Treasury Regulations Section 1.704-1(b)(4)(i), be shared
among the Members in a manner that takes account of the variation between the
adjusted tax basis of the applicable property and its Book Value in the same
manner as variations between the adjusted tax basis and fair market value of
property contributed to the Company are taken into account in determining the
Members' share of tax items under Code Section 704(c).
6.7 ALLOCATION BETWEEN TRANSFEROR AND TRANSFEREE. The
proportion of the income, gain, loss, deductions and credits of the Company
for any fiscal year of the Company during which any Percentage Interest in
the Company is transferred by a Member to another party pursuant to the terms
hereof that is allocable in respect of such Percentage Interest shall be
apportioned between the transferor and the transferee of the Percentage
Interest on the basis of the number of days during such fiscal year that each
is the owner thereof, without regard to (a) the results of the Company's
operations before or after the effective date of the transfer, or (b) any
distributions made to the Members before or after the date of the transfer.
6.8 TAX ALLOCATIONS BINDING. The Members are aware of the
income tax consequences of the allocations made by this Article VI and hereby
agree to be bound by the provisions of this Article VI in reporting their
shares of Company allocations for income tax purposes.
ARTICLE VII
TRANSFER OF INTERESTS
7.1 LIMITATIONS ON TRANSFERS. No Percentage Interest shall
be assigned or transferred by any Member, directly or indirectly, except as
follows:
(a) The members of the Visa Group may assign or transfer
all or part of their respective Percentage Interests only so long as (i) such
transfer shall be approved in advance by the holders of a majority of the
outstanding Percentage Interest (other than the member of the Visa Group
desiring to transfer its Percentage Interest) (which approval may be granted
or withheld in such approving Members' sole discretion and shall not be
required for any party that is a member of the Visa Group or an Affiliate of
Visa or an Affiliate of a member of the Visa Group so long as such
transferring Member remains liable for its obligations hereunder); (ii) in no
event shall Visa and its Affiliates at any time own less than fifty percent
(50%) of the Percentage Interests owned by all members of the Visa Group; and
(iii) such party shall assume in writing all obligations of the transferring
party under this Agreement and under the Operating Agreement.
-15-
<PAGE>
(b) Yahoo may assign or transfer all or part of its
Percentage Interest only so long as (i) such transfer, shall be approved in
advance by the holders of a majority of the outstanding Percentage Interests
(other than Yahoo) (which approval may be granted or withheld in such
Members' sole discretion and shall not be required for any party that is an
Affiliate of Yahoo so long as Yahoo remains liable for its obligations
hereunder); and (ii) such party shall assume in writing all obligations of
Yahoo under this Agreement and under the Operating Agreement.
(c) Any Member other than Yahoo or the members of the
Visa Group may transfer or assign all or part of their respective Percentage
Interest only so long as (i) any party to which such interest shall be
assigned or transferred shall not be a Competitor to the Company, Yahoo or
Visa; (ii) such transfer shall be approved in advance by the Board (which
approval may be granted or withheld in the Board's sole discretion); and
(iii) such party shall assume in writing all obligations of the transferring
party under this Agreement.
(d) Except as expressly set forth in the Operating
Agreement, no assignment or transfer of any Percentage Interest shall affect
any of the assigning or transferring party's obligations under the Operating
Agreement (which cannot be assigned without the written consent of the other
parties to the Operating Agreement).
7.2 RIGHTS OF FIRST REFUSAL. Without limiting the provisions
of Section 7.1:
(a) In the event of a contemplated assignment or
transfer by any member of the Visa Group to a party that is not a member of
the Visa Group or an Affiliate of Visa or an Affiliate of a member of the
Visa Group, the party proposing such transfer shall provide Yahoo with notice
of such proposed transfer, which notice shall include a description of all
terms of such transfer (including the amount to be transferred, the price to
be paid and the date of the proposed transfer), and the name, address and
telephone number of the proposed transferee. Yahoo shall have the right,
exercisable by notice within thirty (30) days following receipt of such
notice, to purchase all or part of the Percentage Interest to be transferred
upon the terms and conditions set forth in the notice. In the event that
Yahoo does not elect to purchase all or part of such Percentage Interest, the
transferring party shall be entitled to complete such transaction (on terms
no more favorable to the transferee in any respect) within thirty (30) days
following the end of such thirty (30) day period (and any transfer proposed
thereafter shall again comply with the foregoing notice and right of first
refusal provisions). Yahoo's right of first refusal may be assigned by Yahoo
to any Affiliate of Yahoo.
(b) In the event of and contemplated assignment or
transfer by Yahoo to a party that is not an Affiliate of Yahoo, the party
proposing such transfer shall provide the Visa Group with notice of such
proposed transfer, which notice shall include a description of all terms of
such transfer (including the amount to be transferred, the price to be paid
and the date of the proposed transfer), and the name, address and telephone
number of the proposed transferee. The Visa Group shall have the right,
exercisable by notice within thirty (30) days following receipt of such
notice, to purchase all or part of the Percentage Interest to be transferred
upon the terms and conditions set forth in the notice. In the event that the
Visa Group does not elect to purchase all
-16-
<PAGE>
or part of such Percentage Interest, the transferring party shall be entitled
to complete such transaction (on terms no more favorable to the transferee in
any respect) within thirty (30) days following the end of such thirty (30)
day period (and any transfer proposed thereafter shall again comply with the
foregoing notice and right of first refusal provisions). The Visa Group's
right of first refusal may be assigned to any Affiliate of Visa or any
Affiliate of a member of the Visa Group. The Visa Group shall be entitled to
allocate the Percentage Interest subject to the right of first refusal among
the members of the Visa Group at the Visa Group's discretion; provided that
in the absence of any other agreement the Percentage Interests subject to the
right of first refusal shall be allocated pro rata based upon the total
Percentage Interest held by all members of the Visa Group.
7.3 MANAGEMENT POOL. Notwithstanding anything to the
contrary in this Agreement, the Board, without the consent or approval of any
Member, may admit as Members executives of the Company and grant to them
portions of the Management Pool on such terms and conditions as the Board
deems appropriate. The allocation of the Management Pool among the executives
of the Company shall be subject to the approval of the Board.
7.4 SPECIAL BUY-OUT RIGHTS OF YAHOO.
(a) Yahoo shall have two options, exercisable in Yahoo's
sole discretion, to purchase Percentage Interests from the Visa Group. The
first option ("First Option") shall be exercisable by Yahoo in the period
starting on the first anniversary of the Effective Date and ending twelve
(12) months thereafter. The second option ("Second Option") shall be
exercisable by Yahoo during the period starting on the first anniversary of
the Effective Date and ending twenty-four (24) months thereafter. If Yahoo
elects to exercise either option, (i) it must do so within the appropriate
period or such option shall terminate and be of no further force and effect
and (ii) it may exercise each option only once for the amounts listed below.
(b) The First Option shall be exercised at a price of
[REDACTED]* and shall entitle Yahoo to purchase from the Visa Group
[REDACTED]* of the then outstanding Percentage Interests.
(c) The Second Option shall be exercised at a price of
[REDACTED]* and shall entitle Yahoo to purchase from the Visa Group
[REDACTED]* of the then outstanding Percentage Interest.
(d) The First Option and the Second Option shall be
reduced proportionately for any reduction in the Visa Group's Percentage
Interests below [REDACTED]* of all then outstanding Percentage Interests that
occurs at any time prior to the second anniversary of the Effective Date
except that the First Option and the Second Option shall not be reduced for
any reduction in the Visa Group's Percentage Interests that is a result of
(i) the creation of the Management Pool (such reduction in the Visa Group's
interest shall not be greater than four percent (4%) of all then outstanding
Percentage Interests) and (ii) the exercise by Yahoo of any purchase rights
granted in this Section 7.4. Any such reduction in the First Option and/or
the Second Option shall be applied equally to the First Option and to the
Second Option.
* Confidential treatment requested. Omitted portion filed
separately with the Commission.
-17-
<PAGE>
(e) Notwithstanding anything to the contrary contained
herein, in no event shall the exercise of the First Option or the Second
Option result in the Visa Group owning less than [REDACTED]* of the then
outstanding Percentage Interests. In such event the First Option and/or the
Second Option shall be reduced so that after exercise of the option(s) the
Visa Group shall own at least [REDACTED]* of the then outstanding
Percentage Interests. Any reduction in the First Option or the Second Option
required by this Section 7.4(e) shall be applied equally to the First Option
and the Second Option. No such reduction shall affect any prior exercise of
the First Option or the Second Option.
(f) Yahoo's purchase rights under this Section 7.4 may
be assigned in part by Yahoo to one or more third party investors none of
which is a Competitor of the Company or Visa; provided, however, that (i)
Yahoo may only assign rights to purchase Percentage Interest from the Visa
Group that represent cumulatively and in the aggregate less than a majority
of the Percentage Interests subject to such purchase rights and (ii) Yahoo
may not assign any of its non-economic rights set forth in this Agreement or
the Operating Agreement, including, without limitation, its rights to appoint
Managers to the Board or any of its rights of consent, approval or
disapproval.
(g) Yahoo shall exercise its purchase rights hereunder
through written notice within the time periods specified above to the member
of the Visa Group then holding the greatest Percentage Interest, and the Visa
Group shall be entitled to allocate the Percentage Interests to be purchased
in the Visa Group's discretion; provided that, in the absence of any other
agreement, the Percentage Interests to be purchased shall be allocated pro
rata based upon the total Percentage Interests held by all members of the
Visa Group. The date the Visa Group receives the written notice of Yahoo's
election to purchase a portion of the Visa Group's Percentage Interest shall
be the "Notice Date." Yahoo shall be deemed to have exercised any purchase
right granted in this Section 7.4 on the Notice Date related to such purchase
right. Any purchase by Yahoo under this Section 7.4 shall be completed
within thirty (30) days following the Notice Date; provided that such period
shall be extended to the extent required by applicable law (including,
without limitation, any delay required by the Hart-Scott-Rodino Antitrust
Improvements Act of 1976). The purchase price for Percentage Interests
purchased may be paid by Yahoo either in cash, shares of Yahoo Common Stock,
or a combination of both, as determined in Yahoo's sole discretion; provided
that any shares of Yahoo Common Stock shall be registered under the
Securities Act of 1933 (and qualified or exempt under any applicable state
blue sky authorities) in a manner permitting public resale no later than
ninety (90) days following the closing of the purchase of Percentage
Interests. The value of any shares of Yahoo Common Stock for these purposes
will be determined based upon the average closing price of such shares on the
NASDAQ Stock Market (or such other principal exchange or trading system upon
which such shares are traded or sale prices are quoted) for the thirty (30)
trading days preceding the closing of the purchase of Percentage Interests.
In the event that any shares issued by Yahoo in such transaction shall not be
registered for resale at the time of issuance, the total value of the shares
issued in such transaction (based upon the closing price on the second (2nd)
trading date preceding effectiveness of the registration statement) shall be
at least equal to the
* Confidential treatment requested. Omitted portion filed
separately with the Commission.
-18-
<PAGE>
purchase price provided herein, or Yahoo will issue sufficient additional
registered shares or pay the difference in cash.
ARTICLE VIII
DEATH, INCOMPETENCE OR DISSOLUTION OF A MEMBER
8.1 EFFECT ON COMPANY. The death, incompetence, dissolution
or Bankruptcy of a Member shall not entitle any Member to a return of capital
other than to the extent such Member normally would be entitled to a
distribution under the provisions of this Agreement. Such event shall not
cause a dissolution of the Company except as otherwise provided in Section
10.1.
8.2 RIGHTS OF PERSONAL REPRESENTATIVE. On the death,
incompetence, dissolution or Bankruptcy of a Member his or her personal
representative, executor, administrator, guardian or conservator shall have
all the rights of a Member for the purpose of settling such Member's estate,
or administering such Member's property, including the power of assignment.
ARTICLE IX
WITHDRAWAL
9.1 WITHDRAWAL OF MEMBERS.
(a) No Member may withdraw from the Company and receive
a distribution with respect to such Member's Capital Account unless such
withdrawal has received the Approval of Members holding a majority of all
Percentage Interest (disregarding for such purpose the Percentage Interest of
the withdrawing Member) and the Board as provided in Section 3.3 hereof.
(b) In the event of a withdrawal permitted hereunder,
the Percentage Interest in the Company of such Member shall terminate as of
such date and, subject to the provisions hereof, the former Member's Capital
Account (together with such Member's allocable share of Company Profits or
less such Member's allocable share of Company Losses through the date of
effectiveness of such withdrawal) shall be paid, subject to the provisions of
this Agreement, in cash or in kind, to such former Member within thirty (30)
days after the effective date of withdrawal.
ARTICLE X
DISSOLUTION, MERGER AND LIQUIDATION
10.1 EVENTS OF DISSOLUTION. Upon the determination of the
Board, as provided in Section 3.3 hereof (without any requirement of Approval
by the other Members), the Company will be dissolved and the assets shall
either be liquidated forthwith or the property shall be distributed in kind
to the Members after payment of the debts of the Company as determined by
agreement of the Members. The Company shall also dissolve upon the death,
incompetence,
-19-
<PAGE>
Bankruptcy, retirement, resignation or expulsion of any Member unless
Approval is provided by the remaining Members within ninety (90) days after
such event to continue the Company.
10.2 MERGER. The Company shall be merged with another entity
under applicable provisions of the Act if (and on such terms as) the Board in
its sole discretion deems appropriate (subject to the provisions of Section
3.3 hereof).
10.3 LIQUIDATION PROCEEDS. In settling accounts after
liquidation, the moneys of the Company shall be applied in the following
manner:
(a) The liabilities of the Company to creditors,
including Members who are creditors to the extent permitted by law, shall be
paid or otherwise adequately provided for except for liabilities of the
Company for distributions to Members.
(b) The remaining assets shall be distributed to the
Members in accordance with their positive Capital Account balances. If any
assets are to be distributed in kind, each Member's Capital Account shall
first be adjusted to reflect the Profits or Losses that would have been
allocated to such Member if such assets had been sold for cash at their fair
market value at the time of the distribution.
(c) In the event that any Member withdraws from the
Company in accordance with the provisions of this Agreement, such Member
shall be distributed an amount equal to such Member's Capital Account balance
as of the date of such withdrawal (taking into account all adjustments to
such Capital Account through the date of such withdrawal).
ARTICLE XI
CERTAIN SECURITIES RELATED MATTERS
11.1 INVESTMENT INTENT. Each Member hereby represents and
warrants to the Company and to the other Members that such Member's
Percentage Interest will be acquired for such Member's own account, for
investment, and not with a view to or for sale in connection with any
distribution thereof, nor with any present intention of reselling or
distributing such Percentage Interest. Each Member fully understands that
the Company is relying upon the truth and accuracy of the foregoing
representations, and the representations that follow, to establish exemptions
from registration under the Securities Act of 1933 (the "Securities Act"),
and from registration or qualification under the California Corporate
Securities Law of 1986 and other applicable securities laws (the "Laws").
11.2 ABSENCE OF REGISTRATION. Each Member also hereby
represents that such Member understands that such Member must bear the
economic risk of such Member's investment in the Company for an indefinite
period of time because such Percentage Interest has not been registered under
the Securities Act or registered/qualified under the Laws and therefore
cannot be sold unless they are subsequently so registered and qualified or
exemptions from such registration and qualification are available, and the
Company is under no obligation to so register
-20-
<PAGE>
or qualify any Percentage Interest or to comply with any exemption and has no
current intention of so doing.
11.3 RESTRICTED SECURITIES; ABSENCE OF TRADING MARKET. Each
Member further hereby represents that such member understands that (a) such
member's Percentage Interest constitute "restricted securities" under the
Securities Act and that Rule 144 promulgated under the Securities Act is not
now available with respect to the transfer of such Member's Percentage
Interest and that there is no present likelihood that it will be available in
the future, (b) that there is no public market for such Percentage Interest
and there is no present likelihood that any such market will develop, and (c)
the Company is newly formed and has no earnings or operating history.
11.4 PREEXISTING RELATIONSHIP; INVESTMENT EXPERIENCE. Each
Member represents and warrants (a) that such Member has a preexisting
personal or business relationship with Yahoo and/or Visa and/or other members
of the Visa Group, as the case may be, such that such Member is aware of the
character, business acumen and general business and financial circumstances
of such parties, or (b) that either alone or with a purchaser representative,
such Member can bear the economic risk of the investment in the Company and
has such knowledge and experience in financial or business matters that such
Member is capable of evaluating the merits and risks of an investment in the
Company.
11.5 RESIDENCE. Each Member represents that such Member's
principal residence (or the location of such Member's executive office in the
case of a Member which is an entity) is located in the state of California.
11.6 ECONOMIC RISK. Each Member hereby represents that such
Member has adequate net worth and means for providing for such Member's
current needs and personal contingencies to sustain a complete loss of such
Member's investment, is able to bear such a loss, and that such Member has no
need of liquidity of such Member's investment.
11.7 RESALE. Each Member hereby represents such Member's
awareness that such Member's rights to transfer such Member's Percentage
Interest will be restricted by the Securities Act, the Laws, and this
Agreement; that any certificates or other documents evidencing such Member's
Percentage Interest may bear the legends relating to those restrictions which
are set forth herein; and that corresponding notations will be made by the
Company in its appropriate records.
11.8 CORPORATE POWER. Each Member hereby represents that it
has all requisite corporate power and authority to execute and deliver this
Agreement and the Operating Agreement.
11.9 AUTHORIZATION. Each Member hereby represents that all
corporate action on the part of such Member and its officers, directors and
stockholders, necessary for the authorization, execution and delivery of this
Agreement and the Operating Agreement, the performance of all obligations of
such Member hereunder and thereunder has been taken and this Agreement and
the Operating Agreement constitute valid and legally binding obligations of
such Member,
-21-
<PAGE>
enforceable in accordance with their respective terms except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
11.10 CONSENTS. Each Member hereby represents that no
consent, approval, qualification, order or authorization of, or filing with,
any local, state or federal governmental authority or other third party is
required on the part of such Member in connection with such Member's valid
execution, delivery or performance of this Agreement and the Operating
Agreement.
11.11 COMPLIANCE WITH OTHER INSTRUMENTS. Each Member
hereby represents that the execution, delivery and performance by such Member
of this Agreement and the Operating Agreement, and the consummation of the
transactions contemplated hereby and thereby will not result in any violation
or be in material conflict with or constitute, with or without the passage of
time or giving of notice, either (i) a material default under any provision
of any mortgage, indenture, agreement, instrument or contract to which it is
a party or by which it is bound or (ii) an event that results in the creation
of any material lien, charge or encumbrance upon any assets of such Member or
the suspension, revocation, impairment, forfeiture or nonrenewal of any
material permit, license, authorization or approval applicable to such
Member, its business or operations, or any of its assets or properties.
ARTICLE XII
MISCELLANEOUS
12.1 NOTICES. Except as otherwise provided herein, any notice
or other communication to be given hereunder shall be in writing and shall be
(as elected by the party giving such notice): (i) personally delivered; (ii)
transmitted by postage prepaid registered or certified airmail, return
receipt requested; (iii) transmitted by electronic mail via the Internet with
receipt being acknowledged by the recipient by return electronic mail (with a
copy of such transmission transmitted by postage prepaid registered or
certified airmail, return receipt requested); (iv) transmitted by facsimile
(with a copy of such transmission by postage paid prepaid registered or
certified airmail, return receipt requested); or (v) deposited prepaid with a
nationally recognized overnight courier service. Unless otherwise provided
herein, all notices shall be deemed to have been duly given on: (a) the date
of receipt (or if delivery is refused, the date of such refusal) if delivered
personally, by electronic mail, facsimile or by courier; or (b) three (3)
days after the date of posting if transmitted by mail. Either party may
change its address for notice purposes hereof on not less than three (3) days
prior notice to the other party. Notice hereunder shall be directed to a
Party at the address for such Party which is set forth on SCHEDULE 1 to this
Agreement.
12.2 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts with the same effect as if all parties
hereto had all signed the same document. All counterparts shall be construed
together and shall constitute one agreement.
-22-
<PAGE>
12.3 ASSIGNABILITY. Without limiting the restrictions upon
assignment and transfer set forth herein, each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the successors and assigns of the respective parties
hereto.
12.4 GENDER AND NUMBER. Whenever required by the context
hereof, the singular shall include the plural and the plural shall include
the singular. The masculine gender shall include the feminine and neuter
genders, and the neuter shall include the masculine and feminine.
12.5 CAPTIONS. Sections, titles or captions in no way define,
limit, extend or describe the scope of this Agreement nor the intent of any
of its provisions.
12.6 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
12.7 INTEGRATION. This Agreement, together with the Operating
Agreement and all Counterparts, contain the entire agreement of the parties
with respect to the subject matter hereof, and supersedes all other
agreements or understandings of any kind (including, without limitation, the
Letter Agreement between Yahoo and Visa dated March 27, 1996).
12.8 AMENDMENTS.
(a) This Agreement may be amended by the Board (as
provided in Section 3.3 hereof) without the consent of any Member for the
purpose of adding provisions hereto or changing in any manner or eliminating
any of the provisions hereof or of modifying in any manner the rights and
obligations of the Members hereunder, in each case without the consent of any
other Member. Notwithstanding the foregoing, any such amendment which
materially and adversely affects any Member in a manner different from any
other Member shall require the Approval of such materially and adversely
affected Member.
(b) Each of the Members does hereby constitute and
appoint the Secretary of the Company (as directed by the Board) as such
Member's true and lawful representative and attorney-in-fact, in his name,
place and stead to make, execute, sign and file, the Certificate and any
amendments thereto in the office of the Secretary of State of the State of
Delaware which may be required because of this Agreement or the making of any
amendments or supplements thereto as provided in this Section 12.8 and to
make, execute, sign and file this Agreement and all amendments thereto and
all such other instruments, documents and certificates which, from time to
time, in the opinion of the Company's legal counsel, may be required, by the
laws of the United States of America, the State of Delaware or any other
jurisdiction in which the Company shall determine to do business, or any
political subdivision or agency thereof, or by this Agreement, or which such
legal counsel may deem necessary or appropriate to effectuate, implement and
continue the valid and subsisting existence and business of the Company.
[SIGNATURE PAGE FOLLOWS]
-23-
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
Agreement effective as of the date first written above.
FOUNDERS:
Yahoo! Inc., a California corporation
By: /s/ Timothy Koogle
-------------------------------------------
Title: President and CEO
----------------------------------------
Visa Marketplace, Inc., a Delaware corporation
By: /s/ Scott Randall
-------------------------------------------
Title: President
----------------------------------------
Sterling Payot Capital, L.P., a California
limited partnership
By: Sterling Payot Management, Inc., a
Delaware corporation, its general partner
By: /s/ Robert Smelick
--------------------------------------
Robert Smelick, Managing Director
-24-
<PAGE>
SCHEDULE 1
Member Initial Cash Percentage
- ------ Contribution Interest
------------ --------
Yahoo! Inc. $ 550,000 55.0%
635 Vaqueros Avenue
Sunnyvale, CA 94086
Attn: President
Facsimile: (408) 328-3302
e-mail: [email protected]
Copy to:
James L. Brock
Venture Law Group
2800 Sand Hill Road
Menlo Park, CA 94025
Facsimile: (415) 233-8386
e-mail: [email protected]
Visa Marketplace, Inc. $ 300,000 30.0%
900 Metro Center Boulevard
Foster City, CA 94404
Attn: Legal Department
Facsimile: (415) 432-2145
e-mail: [email protected]
Copy to:
Mark Anderson
Farella Braun & Martel
235 Montgomery Street, 30th Floor
San Francisco, CA 94104
Facsimile: (415) 954-4480
e-mail: [email protected]
-25-
<PAGE>
Sterling Payot Capital, L.P. $ 150,000 15.0%
222 Sutter Street, 8th Floor
San Francisco, CA 94108
Facsimile: (415) 274-4545
e-mail: [email protected]
-------------- ------------
$1,000,000 100.0%
-------------- ------------
-------------- ------------
-26-
<PAGE>
YAHOO! MARKETPLACE, L.L.C.
OPERATING AGREEMENT
This Operating Agreement (the "Agreement") is entered into as of August 26, 1996
(the "Effective Date") by and among the following parties (the "Parties",
individually a "Party"):
(i) Yahoo! MarketPlace, L.L.C., a Delaware limited liability company
(the "Company") with its principal offices initially at 635 Vaqueros Avenue,
Sunnyvale, California 94086;
(ii) Yahoo! Corporation, a California corporation ("Yahoo") with its
principal offices at 635 Vaqueros Avenue, Sunnyvale, California 94086; and
(iii) Visa International Service Association, a Delaware corporation
("Visa") with its principal offices at 900 Metro Center Boulevard, Foster
City, CA 94404;
with reference to the following:
A. Yahoo owns, operates and distributes a leading guide to Internet resources,
including a hierarchical directory, information indexing and retrieval software
and certain other elements of content and software.
B. Visa, through its member banks, is a leading provider of transaction
payment services and systems.
C. Yahoo, Visa (or a wholly-owned special purpose subsidiary of Visa) and
certain other parties have entered into an Limited Liability Company Agreement
of even date herewith (the "LLC Agreement") for the creation of the Company.
The Company has been formed to develop and operate a navigational service on the
World Wide Web focused on information and resources for the purchase of consumer
products and services over the Internet, which the Parties intend to develop as
the premier electronic commerce interface for both consumers and merchants.
D. The Company, Yahoo and Visa desire to enter into this Agreement in order to
set forth certain agreements relating to the Company and its business, including
the licensing of certain rights and the performance of certain services by Yahoo
and Visa to the Company.
On this basis, the Parties agree as follows:
-1-
<PAGE>
1. DEFINITIONS; RULES OF CONSTRUCTION.
1.1 DEFINITIONS. For purposes of this Agreement, in addition to the
capitalized terms defined elsewhere in this Agreement, the following terms shall
have the meanings ascribed to them below. Capitalized terms defined in the LLC
Agreement and not otherwise defined herein shall have the meanings ascribed to
them in the LLC Agreement.
(a) "Affiliates" shall mean Subsidiaries and Related Entities. A
"Subsidiary" shall mean a company in which on a class-by-class basis, more than
fifty percent (50%) of the stock entitled to vote for the election of directors
is owned or controlled by a party, but only so long as such ownership or control
exists. For Visa, a "Related Entity" shall mean an entity (A) at least fifty
percent (50%) of whose stock or other equity is owned collectively by Visa
Members and that has the authority to process Visa payment transactions, but
only so long as such ownership exists; (B) has an equity interest in Visa and is
owned in whole collectively by Visa Members or financial institutions (E.G.,
national or regional group members); or (C) is exclusively managed by Visa or a
national or group member of Visa for the purpose of processing Visa payment
transactions, but only so long as such exclusive management exists.
Notwithstanding anything to the contrary set forth above, however, Subsidiaries
or Related Entities do not include any individual Visa Member, bank or like
financial institution. Visa Affiliates include, for example, without
limitation, Visa USA, Inc., Vital, Inc., Plus and Interlink. For Yahoo,
"Related Entity" shall include any joint venture of which Yahoo owns an equity
interest and to which Yahoo has licensed Yahoo Brand Features in connection with
the commercialization of "Yahoo!" branded products or services.
(b) "Claim" means any judgment, losses, deficiencies, damages,
liabilities, costs and expenses (including reasonable attorneys' fees and
expenses), whether required to be paid to a third party or otherwise incurred in
connection with or arising from any claim, suit, action or proceeding.
(c) "Company Brand Features" means the Company's trademarks, trade
names, service marks, service names and distinct brand elements that may appear
in the Service from time to time and are protected under copyright law or as to
which the Company may establish trademarks or trade dress rights, and any
modifications to the foregoing that may be created during the term of this
Agreement, but excluding the Yahoo Brand Features and the Visa Brand Features
(e.g., any reference to the word "Yahoo!" or "Visa" or derivatives thereof,
respectively, shall not be deemed to be Company Brand Features).
(d) "Company Properties" means all content and materials developed
for use in the Service (other than the Yahoo Properties and the Visa Properties)
solely by the Company's employees or contractors, including (without limitation)
the Company Brand Features, and the organization, user look-and-feel and other
distinctive elements of the Service, and all Intellectual Property Rights in the
foregoing.
-2-
<PAGE>
(e) "Competitive Service" means any WWW Site or other Internet-based
service that is engaged in the MarketPlace Activities in any respect.
(f) "Components" means information, materials, products, features,
services, content, computer software, designs, artistic renderings, drawings,
sketches, characters, layouts, and the digital implementations thereof.
(g) "Confidential Information" means any information of a Party
disclosed to any other Party in the course of this Agreement, which is
identified as, or should be reasonably understood to be, confidential or
proprietary to the disclosing Party, including, but not limited to know-how,
trade secrets, log data, technical processes and formulas, source codes, product
designs, sales, cost and other unpublished financial information, product and
business plans, projections, and marketing data. "Confidential Information"
shall not include information which: (i) is known or becomes known to the
recipient directly or indirectly from a third-party source other than one having
an obligation of confidentiality to the providing Party; (ii) is or becomes
publicly available or otherwise ceases to be secret or confidential, except
through a breach of this Agreement by the recipient; or (iii) is or was
independently developed by the recipient without use of or reference to the
providing Party's Confidential Information, as shown by evidence in the
recipient's possession.
(h) "Consumers" means individuals or businesses who purchase products
and services that are (i) typically purchased at retail (e.g. retail stores,
mail order telephone order, etc.) and (ii) are purchased for use or consumption
by the purchasing individual or business (rather than for resale or as
components or tools used in the manufacture of goods and services).
(i) "Derivative Work" means all "derivative works" and
"compilations," within the meaning of such terms as defined in the U.S.
Copyright Act (17 U.S.C. Section 101 ET SEQ.).
(j) "HTML" means Hypertext Markup Language or any successor or
replacement to HTML.
(k) "Intellectual Property Rights" means trade secrets, patents,
copyrights, service marks, trademarks, know-how, moral rights and similar rights
of any type under the laws of any governmental authority, domestic or foreign
including all applications and registrations relating to any of the foregoing.
(l) "Joint Developments" means all content and materials that are
developed for use in the Service jointly by employees or contractors of the
Company, on the one hand, and employees or contractors of Yahoo and/or employees
or contractors of Visa, on the other hand, and all Intellectual Property Rights
in the foregoing.
(m) "Launch Date" means the date on which the Service is first made
publicly available.
-3-
<PAGE>
(n) "Link" means a URL hidden behind a formatting option that may
take the form of a colored item of text (such as a URL description), logo or
image, and which allows a user to automatically move between WWW pages, WWW
Sites or within a WWW document.
(o) "MarketPlace Activities" means [REDACTED]*
(p) "Operating Plan" means the Operating Plan of the Company in
effect from time to time, as defined in the LLC Agreement.
(q) "Percentage Interest" means the "Percentage Interest" in the
Company as defined in the LLC Agreement, or such other measurement of equity
interests into which "Percentage Interests" may hereafter be converted or
exchanged.
(r) "Service" means a WWW Site to be developed and offered by the
Company in accordance with this Agreement to engage in the MarketPlace
Activities in the United States and its territories.
(s) "Service Name" means the name of the Service, which shall be
mutually acceptable to Yahoo and Visa, shall include the name "Yahoo"
prominently (such as in "Yahoo! MarketPlace"), and shall not include the name
"Visa", except to the extent that the Service Name is presented in connection
with the Visa Tagline.
(t) "Term" shall mean the period from the Effective Date through the
dissolution of the Company as provided in the LLC Agreement, or, if sooner, the
date on which this Agreement is terminated in accordance with Section 9.2.
(u) "URL" means Universal Resource Locator, which provides a unique
Internet protocol address for accessing a WWW page, or any similar unique
addressing protocol that may be developed in the future.
(v) "Visa Brand Features" means Visa's trademarks, including the
marks "Visa," "Bring Your Visa Card" the Visa Icon and the Visa Tagline, and all
trade names, service marks, service names and distinct brand elements that Visa
regularly uses in its business and are protected under copyright or trademark
law or as to which Visa has established trademarks or trade dress rights, and
any modifications to the foregoing that may be created during the term of this
Agreement.
* Confidential treatment requested. Omitted portion filed separately
with the Commission.
-4-
<PAGE>
(w) "Visa Brand Guidelines" means the guidelines for use of the Visa
Brand Features in the Service, which are attached to this Agreement as
EXHIBIT A.
(x) "Visa Competitors" means [REDACTED]* as well as such other
entities that Yahoo and Visa shall deem to be a Visa Competitor from time to
time.
(y) "Visa Ownership Period" means the period commencing with the
Effective Date and ending on the later to occur of (i) the date the Visa Group
holds, in the aggregate, less than [REDACTED]* of all then outstanding
Percentage Interests; or (ii) the date on which the Visa Brand Features are no
longer used in the Service.
(z) "Visa Icon" means a graphic and/or text image, designated by Visa
(with Yahoo's reasonable approval), in an appropriate size and configuration to
serve as a Link to a Visa WWW Site as described in this Agreement; it being
agreed that the Visa Icon may not be sufficiently large to include the Visa
Tagline or similar amounts of text.
(aa) "Visa Members" means any entity that is a formal member of Visa
pursuant to Visa's Operating Regulations.
(bb) "Visa Operating Contributions" means those services and functions
described on EXHIBIT B, to be provided to the Company by Visa in connection with
this Agreement.
(cc) "Visa Properties" means the Visa Brand Features and any software
or other materials owned or licensed by Visa and provided to the Company
pursuant to this Agreement (including, without limitation, any such materials
relating to transaction payment processing), and all Intellectual Property
Rights in the foregoing.
(dd) "Visa Tagline" means a secondary tagline to be used in connection
with the title of the Service, which will be selected by Visa subject to the
Company's consent, such consent not to be unreasonably withheld, such as
"...bring your Visa card."
(ee) "WWW" means the World Wide Web, a system for accessing and
viewing text, graphics, sound and other media via the collection of computer
networks known as the Internet, and any similar system that may be developed in
the future.
(ff) "WWW Site" means a collection of materials and information made
available on the WWW via one or more related network servers, which collection
is organized around a common theme or organization, and which is accessed
primarily via a single URL.
(gg) "Yahoo Brand Features" means the Yahoo trademark, "Yahoo!", and
directly related distinct brand elements (such as the presentation of the word,
"Yahoo!") regularly appearing in the Yahoo Directory, as well as the other
regularly
* Confidential treatment requested. Omitted portion filed separately
with the Commission.
-5-
<PAGE>
appearing distinctive elements and look-and-feel of the Yahoo Directory that are
protected under U.S. copyright law or as to which Yahoo has established
trademarks or trade dress rights (for example, Yahoo's copyright in the
organization and selection of entries in the
Yahoo! directory), and any modifications to the foregoing that may be
created during the term of this Agreement.
(hh) "Yahoo Brand Guidelines" means the guidelines for use of the
Yahoo Brand Features in the Service, which are attached to this Agreement as
EXHIBIT C.
(ii) "Yahoo Competitor " means [REDACTED]*, as well as such other
entities that Yahoo and Visa shall deem to be a "Yahoo Competitor" from time to
time; provided, however, that "Yahoo Competitors" shall not include any entity a
majority of the voting power of which is owned by Visa or one or more Visa
Members.
(jj) "Yahoo Directory" means the collection of HTML files and certain
related scripts comprising a directory to URLs (which directory currently
resides at URL - http://www.yahoo.com), including the other search tools
currently included with such directory, as the same may be maintained from time
to time on any Yahoo WWW Site.
(kk) "Yahoo Directory Tools" means certain software tools described on
EXHIBIT D for use in modifying HTML directories of URLs, in object code (machine
readable) form only, together with any improvements or modifications of the
foregoing that Yahoo may create during the Term.
(ll) "Yahoo Operating Contributions" means those services and
functions described on EXHIBIT E to be provided to the Company by Yahoo in
connection with this Agreement.
(mm) "Yahoo Properties" means the Yahoo Search Engine, the Yahoo
Directory Tools and the Yahoo Brand Features.
(nn) "Yahoo Search Engine" means, collectively, the software programs
used to locate information within the HTML scripts included in the Yahoo
Directory, which are described on EXHIBIT D, together with any improvements,
modifications or substitutions for the foregoing that Yahoo may make publicly
available during the Term.
1.2 RULES OF CONSTRUCTION. As used in this Agreement, neutral pronouns
and any variations thereof shall be deemed to include the feminine and masculine
and all terms used in the singular shall be deemed to include the plural, and
vice versa, as the context may require. The words "hereof," "herein" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, including any exhibits hereto, as the same may from time to time be
amended or supplemented and not to any subdivision
* Confidential treatment requested. Omitted portion filed separately
with the Commission.
-6-
<PAGE>
contained in this Agreement. The word "including" when used herein is not
intended to be exclusive and means "including, without limitation." References
herein to section, subsection, attachment or exhibit shall refer to the
appropriate section, subsection or exhibit in or to this Agreement. The
descriptive headings of this Agreement are inserted for convenience of reference
only and do not constitute a part of and shall not be utilized in interpreting
this Agreement. This Agreement has been negotiated by the parties hereto and
their respective counsel and shall be fairly interpreted in accordance with its
terms and without any rules of construction relating to which party drafted the
Agreement being applied in favor of or against either party.
2. OBLIGATIONS OF YAHOO TO THE COMPANY AND VISA.
2.1 EXCLUSIVITY. Yahoo agrees that any and all MarketPlace Activities
will be conducted by Yahoo and its Affiliates exclusively through the Company.
Notwithstanding the foregoing, nothing in this Agreement shall be construed to
restrict Yahoo's right to offer [REDACTED]* and Yahoo! branded merchandise in
any online service developed or operated by Yahoo or any of its Affiliates,
provided that such service is not otherwise engaged in the MarketPlace
Activities.
2.2 GRANT OF LICENSE.
2.2.1 YAHOO BRAND FEATURES. Subject to the terms and conditions
of this Agreement, Yahoo hereby grants to the Company a non-exclusive,
worldwide, fully paid license during the Term to distribute, reproduce, transmit
and display in the Service (in the manner described in this Agreement) the Yahoo
Brand Features in the title and presentation of the Service (including as part
of the Service Name), and in connection with the distribution, marketing and
promotion of the Service, subject in each case to compliance with the Yahoo
Brand Guidelines.
2.2.2 YAHOO SEARCH ENGINE AND DIRECTORY TOOLS. Subject to the
terms and conditions of this Agreement, Yahoo hereby grants to the Company an
irrevocable and perpetual non-exclusive, worldwide, fully paid license to:
(a) Use, reproduce and make available through the Service (in object
code form only) the Yahoo Search Engine; and
(b) Use and reproduce the Yahoo Directory Tools in connection with
the development and maintenance of the Service.
2.3 SOFTWARE MAINTENANCE. During the Term, Yahoo shall promptly notify
the Company of any defects or malfunctions in the Yahoo Search Engine or the
Yahoo Directory Tools or any operator or user manuals, training materials,
guides, listings, specifications and other materials used in conjunction with
the same (collectively,
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
-7-
<PAGE>
"Documentation") of which it learns from any source and which have an adverse
effect on the business of the Company. Yahoo shall promptly correct any such
defects or malfunctions in the Yahoo Search Engine, the Yahoo Directory Tools or
the Documentation discovered during such period and provide the Company with
corrected copies of same, without charge. Yahoo's obligation hereunder shall
not affect any other liability which it may have to the Company.
2.4 CERTAIN LIMITATIONS ON COMPETITIVE ACTIVITIES. During the Term, Yahoo
will not use or license any of its Intellectual Property Rights in the Yahoo
Search Engine, the Yahoo Directory, the Yahoo Directory Tools, or the name,
"Yahoo", for use in any Competitive Service.
2.5 OPERATIONAL ASSISTANCE. During the Term, Yahoo will provide the
Company with the Yahoo Operating Contributions, at no cost to the Company or
Yahoo (except as set forth herein), as well as such other support as Yahoo and
the Company shall mutually agree. Yahoo shall be reimbursed by the Company on a
monthly basis for Yahoo's direct out-of-pocket expenses incurred in connection
with such activities, which shall be determined by Yahoo and the Company on an
arms-length basis, and a reasonably detailed explanation of which shall be
provided to the members of the Board of the Company concurrently with the
regular delivery of financial information about the Company. The Company shall
not be obligated to reimburse Yahoo for any such expenses until such expenses
have been reviewed and approved by the Board of the Company.
2.6 YAHOO DIRECTORY PROMOTIONS FOR THE SERVICE. At no expense to the
Company or Visa, Yahoo will for a period of [REDACTED]* from the Launch Date:
2.6.1 Display in the primary "Navigation Bar" above the fold on
the top page of the Yahoo Directory a Link to the front page (i.e., the page
delivered in response to the primary URL of the Service) of the Service (which
Link shall include the Visa Icon), in a precise location on such page and in a
form as Yahoo shall determine; and no Competitive Service shall be similarly
referenced during this period on the top page of the Yahoo Directory.
2.6.2 Display a Link to the Service in other appropriate locations
throughout the Yahoo Directory as Yahoo shall determine, in its reasonable
discretion.
2.6.3 Display a Link to the Service every [REDACTED]* for a
minimum of [REDACTED]*, which need not be consecutive, along the top page
promotional marquee of the Yahoo Directory which promotional marquee shall be
above the fold on the top page.
2.6.4 To the extent that Yahoo licenses any portion of the Yahoo
Directory to third parties for inclusion in such parties' WWW Sites, use
commercially reasonable efforts to include the Link to the Service described in
Section 2.6.1 (including
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
-8-
<PAGE>
the Visa Tagline) in such third party licensed WWW Site in substantially the
same manner as it may appear in the Yahoo Directory.
2.7 YAHOO DIRECTORY PROMOTIONS FOR VISA. At no expense to the Company or
Visa, Yahoo will for a period of [REDACTED]* from the Launch Date:
2.7.1 Place a Visa Icon on the lower left hand corner of the front
page of the Yahoo Directory, or such other locations as Visa shall approve;
provided, however, that if after the Effective Date Yahoo materially changes the
size or configuration of the
front page and as a result of such change the Visa Icon is no longer in an as
desirable location on the front page, Visa and Yahoo will work together in good
faith to determine a new location for the Visa Icon, which location shall be
comparable to the location of the Visa Icon prior to the change. Yahoo's
obligation to place the Visa Icon on the front page shall terminate immediately
if any WWW page referenced by the Link in the Visa Icon includes a Link to any
Yahoo Competitor. For such period no Visa Competitor shall receive reference
placement or presentation that is equal to or superior to the Visa Icon in terms
of prominence, placement and similar factors.
2.7.2 To the extent that Yahoo licenses any portion of the Yahoo
Directory to third parties for inclusion in such parties' WWW Sites, use
commercially reasonable efforts to include the Visa Link described in Section
2.7.1 in such third party licensed WWW Site in substantially the same manner as
it appears in the Yahoo Directory.
3. OBLIGATIONS OF VISA TO THE COMPANY AND YAHOO.
3.1 USE OF VISA BRAND FEATURES. During the Term, the Company shall be
entitled in connection with the Service to use, reproduce and transmit the Visa
Icon and the Visa Tagline, as well as such other Visa Brand Features as Visa
shall approve, acting reasonably. The Visa Brand Features shall be used by the
Company only in compliance with the Visa Brand Guidelines.
3.2 OPERATIONAL ASSISTANCE. From the Effective Date through twenty-four
(24) months following the Launch Date, Visa will provide the Company with the
Visa Operating Contributions at no cost to the Company (except as set forth
herein), as well as such other support as Visa and the Company shall mutually
agree. Such activities will be undertaken actively by Visa, particularly
during the first twelve (12) months following the Effective Date, consistent
with the Operating Plan.
3.3 CERTAIN LIMITATIONS ON COMPETITIVE ACTIVITIES.
3.3.1 For a period of [REDACTED]* following the Effective Date,
Visa will not (a) actively promote, by means of any system-wide marketing
effort, any Yahoo Competitor, or (b) enter into any joint branding relationship
with any Yahoo Competitor
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
-9-
<PAGE>
that involves the use of the "Visa" name as part of the name of such Yahoo
Competitor's Competitive Service.
3.3.2 Notwithstanding the provisions of Section 3.3.1, it is
understood that (a) Visa will make its payment methods available to other
companies that provide services that may be competitive with those of Yahoo and
the Service; (b) Visa will place advertisements with other companies that
provide services that may be competitive with those of Yahoo and the Service;
and (c) such restrictions shall not prohibit any Visa Members from entering into
credit or debit card co-branding agreements with any third party.
3.4 VISA PROMOTION OF THE SERVICE. For a period of three (3) years
following the Launch Date, Visa will agree to provide, at no expense to the
Company or Yahoo,
(a) a Link to the Service (in such form as the Company shall provide, which
shall be reasonably acceptable to Visa) on the top page of Visa's principal WWW
Site; and (b) advertisement placements for the Service (in such form as the
Company shall provide, which shall be reasonably acceptable to Visa) on
additional pages in Visa's principal WWW Site consistent with the Operating
Plan.
3.5 VISA PROMOTION OF THE YAHOO DIRECTORY. For a period of [REDACTED]*
following the Launch Date, Visa will, at no expense to Yahoo or the Company,
include a Link (in such form as Yahoo shall provide, which shall be reasonably
acceptable to Visa) to the Yahoo Directory on the top page of Visa's principal
WWW Site; provided that Visa's obligation to place such Yahoo Link shall
terminate immediately if any WWW page referenced by such Yahoo Link includes a
Link to any Visa Competitor. For such period, Yahoo will also be featured as
the premiere Internet navigational service in terms of prominence, placement and
similar factors.
3.6 VISA ADVERTISING ON THE YAHOO DIRECTORY. Visa will purchase no less
than a total of [REDACTED]* of advertising on the Yahoo Directory within
[REDACTED]* from the Effective Date, at prices and terms that shall be
[REDACTED]*. Such minimum advertising purchases shall be in addition to the
advertising contracts that have already been signed by Visa and Yahoo prior to
the Effective Date.
4. OBLIGATIONS OF THE COMPANY TO YAHOO AND VISA.
4.1 PROVISIONS RELATING TO THE SERVICE. The Company agrees with Yahoo and
Visa as follows with respect to the Service:
4.1.1 It is anticipated that there will not be a subscription fee
for consumers who use the Service, but there may be a fee for merchants listed
in the Service as determined by the Company. It is anticipated that the
principal sources of revenue for the Service will be advertising fees. It is
anticipated that the Service may generate revenues from transaction fees through
relationships with merchants participating in the
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
-10-
<PAGE>
Service, which revenues, in the absence of any other agreement with Yahoo and
Visa, will be retained by the Company. The fee structure utilized by the
Company will not distinguish or discriminate among different methods of payment
by consumers.
4.1.2 It is understood that the Service may include sub-sets of
commerce content that will be developed by Yahoo and/or others. This commerce
content will be included under the distinct umbrella brand of the Service and,
where appropriate, the Company will enter into commercial relationships directly
with such content providers. The Company management will consult with Yahoo and
Visa with respect to such content relationships.
4.1.3 It is understood that the Company may, in its sole
discretion, accept payment methods for goods and services purchased through the
Service other than Visa payment methods; provided, that:
(i) So long as Visa or its Affiliates own any Percentage
Interest in the Company or the Company is using the Visa Brand Features in the
Service, (a) the Company will ensure that Visa will be the default payment
method (i.e., the method not requiring any additional selection action by the
user) for the purchase of goods and services anywhere in the Service where the
Company has the ability to make such decisions (i.e., where the transaction is
processed on network servers operated by or on behalf of the Company); (b) the
Company will use reasonable efforts to ensure that Visa will be the default
payment method anywhere else in the Service where the Company has the ability to
influence such decisions; (c) there shall be a Visa Icon on any portal page or
transfer page to any merchants participating in the Service; and (d) Visa will
receive superior placement (in terms of prominence, placement or size) for the
Visa Icon (A) at any location in the Service and (B) at any location in merchant
WWW Sites where companies in businesses similar to the businesses of Visa are
listed or promoted, where the Company has the ability to influence such
decisions.
(ii) For a period of [REDACTED]* from the Effective Date (or such
longer period as the parties may mutually agree), the Company and Yahoo will not
actively promote any Visa Competitor; provided that neither Yahoo nor the
Company shall be restricted from presenting advertising or promotions from Visa
Competitors in accordance with the standard advertising and promotional
practices of Yahoo and the Company, so long as such advertising or promotions do
not state that a Visa Competitor is the preferred method of payment on Yahoo or
the Service.
4.1.4 So long as Visa or its Affiliates own any Percentage
Interest in the Company or the Company is using the Visa Brand Features in the
Service, the Company will cooperate with Visa, to create a method for users of
the Service to apply for a Visa card from the front page of the Service by
"clicking" on the Visa reference on such page. This method shall be mutually
acceptable to Visa and the Company.
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
-11-
<PAGE>
4.1.5 It is understood by the parties that Visa has financial
arrangements with merchants and with cardholders that involve transaction fees,
financing fees, member fees, and similar charges. The Parties acknowledge and
agree that these financial arrangements will not in any way be affected by
Visa's or its Affiliates' participation in the Company or the Service.
4.1.6 It is understood and agreed that the Company may enter into
commercial relationships with other third parties for the promotion and
distribution of the Service, which relationships may include, without
limitation, the presentation of third party brands, services, content and other
materials in the Service; provided that, during the Visa Ownership Period, the
Company will not enter into any co-branding relationships or other contractual
relationships with any Visa Competitor, except for any non-promotional
contractual relationships solely for the purpose of permitting settlement of
online transactions with payment systems that may be offered by Visa
Competitors.
4.2 COMPANY RESPONSIBILITY. The Company shall have all primary
responsibility for the development, implementation, operation and maintenance of
the Service, including with respect to those activities as to which Yahoo or
Visa have agreed to provide support and assistance as set forth in this
Agreement.
4.3 GEOGRAPHIC LIMITATIONS. The Company agrees that (i) the Service shall
focus on serving only Consumers located within the United States and its
territories, (ii) Yahoo and Visa have reserved the right, in their discretion,
to offer services similar to the Service for Consumers located outside of the
United States and its territories ("Non-U.S. Services") and (iii) the Company
shall have no right to participate in the ownership, income or profits with
respect to any Non-U.S. Services. Yahoo and Visa agree that any and all
Non-U.S. Services shall be jointly owned and operated by Yahoo and Visa (or a
wholly-owned special purpose subsidiary of Visa) and that each of Visa and Yahoo
will receive all of the analogous benefits of this Agreement with respect to all
Non-U.S. Services, so long as each of Yahoo and Visa agree to perform the
analogous duties described in this Agreement and so long as each of Visa and
Yahoo assists in the funding for the new region's activities, such funding being
proportional to its equity share in any entity created by Yahoo and Visa (or a
special purpose wholly-owned subsidiary of Visa) at that time. To the extent
that Visa has been provided with the reasonable opportunity to participate on
such basis in any international MarketPlace Activities and has not committed in
writing to participate on such terms within ninety (90) days following notice of
any such opportunity (and the related terms in reasonable detail) by Yahoo,
Yahoo shall be free to pursue such activities separately and without any duty to
account to the Company or Visa; provided that Visa will use its best efforts to
provide any such notice (or indication that it does not intend to pursue such an
opportunity) within sixty (60) days following Yahoo's notice.
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
-12-
<PAGE>
5. CONFIDENTIAL INFORMATION.
5.1 PROTECTION OF CONFIDENTIAL INFORMATION. Each of the Parties
recognizes that, in connection with the performance of this Agreement, each of
them may disclose to the others such Party's Confidential Information. Each
Party receiving any Confidential Information from another Party agrees to
maintain the confidential status of such Confidential Information and not to use
any such Confidential Information for any purpose other than the purpose for
which it was originally disclosed to the receiving Party, and not to disclose
any of such Confidential Information to any third party. No Party shall disclose
any other Party's Confidential Information to its employees and agents except on
a need-to-know basis.
5.2 PERMITTED DISCLOSURE. The Parties acknowledge and agree that each may
disclose Confidential Information: (i) as required by law; (ii) to their
respective directors, officers, employees, attorneys, accountants and other
advisors, who are under an obligation of confidentiality, on a "need-to-know"
basis; (iii) to investors or joint venture partners, who are under an obligation
of confidentiality, on a "need-to-know" basis; or (iv) in connection with
disputes or litigation between the parties involving such Confidential
Information and each Party shall endeavor to limit disclosure to that purpose
and to ensure maximum application of all appropriate judicial safeguards (such
as placing documents under seal).
5.3 APPLICABILITY. The foregoing obligations of confidentiality shall
apply to directors, officers, employees and representatives of the Parties and
any other person to whom, in connection with the performance of this Agreement,
the Parties have delivered copies of, or permitted access to, such Confidential
Information and each party shall advise each of the above of the obligations set
forth in this Section 5.
5.4 THIRD PARTY CONFIDENTIAL INFORMATION. Any Confidential Information of
a third party disclosed to any Party shall be treated by such Party in
accordance with the terms under which such third party Confidential Information
was disclosed; provided that the Party disclosing such third party Confidential
Information shall first notify the receiving Party that such information
constitutes third party Confidential Information and the terms applicable to
such third party Confidential Information and provided further that any Party
may decline, in its sole discretion, to accept all or any portion of such third
party Confidential Information.
5.5 CONFIDENTIALITY OF AGREEMENT. Except as required by law (including,
without limitation, applicable disclosure requirements of the Securities and
Exchange Commission) or generally accepted accounting principles, and except to
assert its rights hereunder or for disclosures to its own officers, directors,
employees and professional advisers on a need-to-know basis or in confidence
to investors, investment bankers, financial institutions or other lenders or
acquirers, each Party hereto agrees that neither it nor its directors, officers,
employees, consultants or agents shall disclose the terms of this Agreement or
specific matters relating hereto without the prior consent of the other Parties,
which consent shall not be unreasonably withheld or delayed.
-13-
<PAGE>
5.6 FUTURE BUSINESS ACTIVITIES. This Agreement shall not limit any
Party's present and future business activities of any nature, including business
activities which could be competitive with any other Party, except to the extent
such activities would involve a breach of (i) the confidentiality restrictions
contained in this Section or (ii) any other express provision of this Agreement.
Nothing in this Agreement will be construed as a representation or agreement
that the recipient of Confidential Information will not develop or have
developed for it products, concepts, systems or techniques contemplated by or
embodied in such Confidential Information, provided that such recipient does not
violate any of its obligations under Section 5 of this Agreement in connection
with such development.
5.7 NON-DISCLOSURE AGREEMENT. The confidentiality provisions contained in
this Section 5 supersede any prior Non-Disclosure Agreement between the Parties;
provided that no party shall be relieved of liability for any breach of such
Non-Disclosure Agreement prior to the Effective Date.
6. REPRESENTATIONS AND WARRANTIES; CERTAIN COVENANTS.
6.1 AUTHORITY. Each Party represents and warrants to each other Party
that:
6.1.1 CORPORATE AUTHORITY; NO CONFLICT; BINDING AGREEMENT. Such
Party has the full corporate right, power and authority to enter into this
Agreement and to perform the acts required of it hereunder; and the execution of
this Agreement by such Party; the performance by such Party of its obligations
and duties hereunder, do not and will not violate any agreement to which such
Party is a party or by which it is otherwise bound; and when executed and
delivered by such Party, this Agreement will constitute the legal, valid and
binding obligation of such Party, enforceable against such Party in accordance
with its terms.
6.1.2 NO IMPLIED REPRESENTATIONS OR WARRANTIES. Such Party
acknowledges that no other Party has made any representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement or the LLC Agreement.
6.2 NO INFRINGEMENT. Such Party will use its reasonable efforts to ensure
that the Components which such Party includes in or associates with the Service
(including, without limitation, the Yahoo Properties and the Visa Properties) do
not and shall not (i) infringe on or violate any Intellectual Property Right of
any third party; or (ii) violate any applicable law, regulation or third party
right when included in a manner consistent with this Agreement. In the event
that any Party becomes aware of any such infringement (or alleged infringement)
or violation, such Party will promptly notify the other Parties and shall
provide all information relating to such matters as such other Parties may
reasonably request.
-14-
<PAGE>
7. OWNERSHIP AND RESERVED RIGHTS.
7.1 RESERVED RIGHTS OF YAHOO.
7.1.1 LICENSE LIMITATIONS. In using the Yahoo Properties pursuant
to this Agreement, the Company acknowledges and agrees that: (a) the Company
will use the Yahoo Properties only in accordance with the Yahoo Brand
Guidelines, (b) the Yahoo Properties are and shall remain the property solely of
Yahoo and its licensors; (c) nothing in this Agreement shall confer in the
Company any right of ownership in the Yahoo Properties; and (d) the Company
shall not now or in the future contest the validity of the trademarks, service
marks or other Yahoo Brand Features.
7.1.2 YAHOO OWNERSHIP. Yahoo shall retain all ownership rights in
and to the Yahoo Properties, including, without limitation, any Yahoo Brand
Features that may be incorporated into the Service or its distinctive trademarks
or trade names and any Derivative Works of the Yahoo Properties that may be
created by the Company. The Company hereby assigns to Yahoo any ownership
interest it may be deemed to possess in the Yahoo Properties and during the Term
and thereafter will assist Yahoo in every reasonable way, at Yahoo's expense, to
obtain, secure, perfect, maintain, defend and enforce for Yahoo's benefit all
Intellectual Property Rights with respect to the Yahoo Properties. Except as
expressly provided in this Agreement, Yahoo shall be entitled to exercise all
rights of ownership of the Yahoo Properties, including (without limitation) the
right to license the Yahoo Properties to any other party.
7.1.3 LICENSES BACK.
(a) The Company hereby grants to Yahoo a non-exclusive,
fully-paid, worldwide, perpetual license (with the right to sublicense) to use,
reproduce, distribute and display any Company Properties (including, without
limitation, any Company Properties that constitute Derivative Works of any Yahoo
Properties) and to create Derivative Works therefrom (other than any Company
Properties or Derivative Works created from Visa Properties or from materials
that constitute Visa Operating Contributions described in Section 7.1.3(b)),
subject to all of the competitive limitations and other restrictions upon Yahoo
activities set forth in this Agreement (including, without limitation, that
Yahoo will not use or permit the use of any Company Properties or Derivative
Works created from Company Properties during the Term in connection with any
Competitive Service.)
(b) The Company hereby grants to Visa a non-exclusive,
fully-paid, worldwide, perpetual license (with right to sublicense) to use,
reproduce, distribute and display any Company Properties that constitute
Derivative Works of any Visa Properties and to create Derivative Works
therefrom, subject to all of the competitive limitations and other restrictions
on Visa activities set forth in this Agreement; provided that during the Term
Visa will not use or permit the use of any such Derivative Works (as
distinguished from any underlying Visa Operating Contribution) in connection
with any Competitive Service.
-15-
<PAGE>
(c) The Company agrees that Yahoo and Visa may be involved in
the development and operation of Non-U.S. Services. The Company hereby grants
to each of Visa and Yahoo, a non-exclusive, fully-paid, perpetual, worldwide
license (with rights to sublicense) to use, reproduce, distribute and display
any and all Company Properties and to create Derivative Works therefrom for the
sole purpose of creating, owning and operating Non-U.S. Services in accordance
with the provisions of Section 4.3 (Geographic Limitations) hereof.
(d) The foregoing licenses shall survive any termination or
expiration of this Agreement.
7.2 RESERVED RIGHTS OF VISA.
7.2.1 LICENSE LIMITATIONS. In using the Visa Properties pursuant
to this Agreement, the Company acknowledges and agrees that: (a) the Company
will use the Visa Properties only in accordance with the Visa Brand Guidelines,
(b) the Visa Properties are and shall remain the property solely of Visa and its
licensors; (c) nothing in this Agreement shall confer in the Company any right
of ownership in the Visa Properties; and (d) the Company shall not now or in the
future contest the validity of the trademarks, service marks or other Visa Brand
Features.
7.2.2 VISA OWNERSHIP. Visa shall retain all ownership rights in
and to the Visa Properties including without limitation, any Visa Brand Features
that may be incorporated into the Service or its distinctive trademarks or trade
names and any Derivative Works of the Visa Properties that may be created by the
Company. The Company hereby assigns to Visa any ownership interest it may be
deemed to possess in the Visa Properties and during the Term and thereafter will
assist Visa in every reasonable way, at Visa's expense, to obtain, secure,
perfect, maintain, defend and enforce for Visa's benefit all Intellectual
Property Rights with respect to the Visa Properties. Except as expressly
provided in this Agreement, Visa shall be entitled to exercise all rights of
ownership of the Visa Properties, including (without limitation) the right to
license the Visa Properties to any other party.
7.3 JOINT DEVELOPMENTS. The Company hereby grants to each of Yahoo and
Visa a non-exclusive, world-wide, perpetual, fully-paid license (with rights to
sublicense) to use, reproduce, distribute and display any and all Joint
Developments and to create Derivative Works therefrom for use in any Non-U.S.
Service. Neither Yahoo nor Visa shall undertake a Joint Development without
first either obtaining the written consent of any Party not participating in the
development of the Joint Development as to the scope and subject matter of such
Joint Development or having the scope and subject matter of the Joint
Development approved by the Board. The Company, Yahoo and Visa shall jointly
own all Joint Developments developed collectively by (i) employees or
contractors of the Company, (ii) employees or contractors of Visa and
(iii) employees or contractors of Yahoo, and, to the extent such Joint
Developments are distinct from the Company Properties, the Yahoo Properties and
the Visa Properties, each Party shall be
-16-
<PAGE>
entitled to exercise all rights of ownership with respect to such Joint
Developments, without any duty to account to any other Party; provided that
Visa's and Yahoo's use of any such Joint Developments shall be subject to all of
the competitive limitations and other restrictions upon their activities set
forth in this Agreement (including, without limitation, that each of Visa and
Yahoo will not use any such Joint Developments during the Term in connection
with any Competitive Service). The foregoing license shall survive any
expiration or termination of this Agreement.
7.3.1 YAHOO JOINT DEVELOPMENTS. The Company and Yahoo shall
jointly own all Joint Developments developed by employees or contractors of the
Company and employees or contractors of Yahoo, and, to the extent such Joint
Developments are distinct from the Company Properties, on the one hand, and the
Yahoo Properties on the other hand, each party shall be entitled to exercise all
rights of ownership with respect to such Joint Developments, without any duty to
account to the other party; provided that Yahoo's use of any such Joint
Developments shall be subject to all of the competitive limitations and other
restrictions upon Yahoo activities set forth in this Agreement (including,
without limitation, that Yahoo will not use or permit the use of any such Joint
Developments during the Term in connection with any Competitive Service.
7.3.2 VISA JOINT DEVELOPMENTS. The Company and Visa shall jointly
own all Joint Developments developed by employees or contractors of the Company
and employees or contractors of Visa, and, to the extent such Joint Developments
are distinct from the Company Properties, on the one hand, and the Visa
Properties on the other hand, each party shall be entitled to exercise all
rights of ownership with respect to such Joint Developments, without any duty to
account to the other party; provided that during the Term Visa will not use or
permit the use of any such Joint Developments in connection with any Competitive
Service.
7.4 RESTRICTIONS. No licenses are granted by Yahoo or Visa except for
those expressly set forth in this Agreement. Except to the extent expressly
provided in this Agreement, the Company shall not (i) modify, adapt, translate
or create Derivative Works based on the Yahoo Properties or the Visa Properties,
or (ii) remove any copyright, trademark or other proprietary rights notices from
the Yahoo Properties or the Visa Properties.
8. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
8.1 LIABILITY. EXCEPT AS PROVIDED IN SECTION 8.3, UNDER NO CIRCUMSTANCES
SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS.
-17-
<PAGE>
8.2 NO ADDITIONAL WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NO
PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND
SERVICES CONTEMPLATED BY THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, AS TO
THE OPERATION OF THE YAHOO SEARCH ENGINE OR YAHOO DIRECTORY TOOLS), INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.3 INDEMNIFICATION.
8.3.1 YAHOO INDEMNIFICATION. Subject to the limitations set forth
below, Yahoo, at its own expense, shall indemnify, defend (or at Yahoo's option
and expense, settle) and hold the Company, any Company Affiliates, Visa, any
Visa Affiliates, and their officers, directors, employees, agents, distributors
and licensees (collectively, the "indemnified parties") harmless from and
against any Claim against the indemnified party to the extent the basis of such
Claim is that: (A) the Yahoo Properties infringe any Intellectual Property
Right of a third party; (B) Yahoo does not have the right to license the Yahoo
Properties as set forth herein; or (C) a third party has been or may be injured
or damaged in any way by any material breach by Yahoo of any of its duties,
representations or warranties under this Agreement; provided that Yahoo shall
have no obligation to the indemnified parties pursuant to this Section unless
(x) the indemnified party gives Yahoo prompt written notice of the Claim;
(y) Yahoo is given the right to control and direct the investigation,
preparation, defense and settlement of the Claim; and (z) the indemnified party
provides Yahoo with reasonable assistance in the defense or settlement thereof;
and provided further that if any settlement results in any ongoing liability to,
or prejudices or detrimentally impacts the indemnified party, and such
obligation, liability, prejudice or impact can reasonably be expected to be
material, then such settlement shall require the indemnified party's written
consent. In connection with the defense of any such Claim, each indemnified
party may have its own counsel in attendance at all public interactions and
substantive negotiations at its own cost and expense.
8.3.2 VISA INDEMNIFICATION. Subject to the limitations set forth
below, Visa, at its own expense, shall indemnify, defend (or at Visa's option
and expense, settle) and hold the Company, any Company Affiliates, Yahoo, any
Yahoo Affiliates and their officers, directors, employees, agents, distributors
and licensees (collectively, the "indemnified parties") harmless from and
against any Claim against the indemnified party to the extent the basis of such
Claim is that: (A) the Visa Properties infringe any Intellectual Property Right
of a third party; (B) Visa does not have the right to license the Visa
Properties as set forth herein; or (C) a third party has been or may be injured
or damaged in any way by any material breach by Visa of any of its duties,
representations or warranties under this Agreement; provided that Visa shall
have no obligation to the indemnified parties pursuant to this Section unless
(x) the indemnified party gives Visa
-18-
<PAGE>
prompt written notice of the Claim; (y) Visa is given the right to control and
direct the investigation, preparation, defense and settlement of the Claim; and
(z) the indemnified party provides Visa with reasonable assistance in the
defense or settlement thereof; and provided further that if any settlement
results in any ongoing liability to, or prejudices or detrimentally impacts the
indemnified party, and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement shall require the
indemnified party's written consent. In connection with the defense of any such
Claim, each indemnified party may have its own counsel in attendance at all
public interactions and substantive negotiations at its own cost and expense.
8.3.3 COMPANY INDEMNIFICATION. Subject to the limitations set
forth below the Company, at its own expense, shall indemnify, defend (or at the
Company's option and expense, settle) and hold Visa, any Visa Affiliates, Yahoo,
any Yahoo Affiliates and their officers, directors, employees, agents,
distributors and licensees (collectively, the "indemnified parties") harmless
from and against any Claim against the indemnified party to the extent the basis
of such Claim is that: (A) the Company Properties infringe any Intellectual
Property Right of a third party; (B) a third party has been or may be injured or
damaged in any way by any material breach by the Company of any of its duties,
representations or warranties under this Agreement; (C) any Company Properties
are defamatory, libelous, slanderous, inaccurate or otherwise results in injury
or damage to any person; and (D) there is any other liability or obligation of
the Company arising out of the Company's development and operation of the
Service, which liability or obligation does not result from any intentional
misconduct or gross negligence of the indemnified party or its Affiliates;
provided that the Company shall have no obligation to the indemnified parties
pursuant to this Section unless (x) the indemnified party gives the Company
prompt written notice of the Claim; (y) the Company is given the right to
control and direct the investigation, preparation, defense and settlement of the
Claim; and (z) the indemnified party provides the Company with reasonable
assistance in the defense or settlement thereof; and provided further that if
any settlement results in any ongoing liability to, or prejudices or
detrimentally impacts the indemnified party, and such obligation, liability,
prejudice or impact can reasonably be expected to be material, then such
settlement shall require the indemnified party's written consent. In connection
with the defense of any such Claim, each indemnified party may have its own
counsel in attendance at all public interactions and substantive negotiations at
its own cost and expense.
9. TERM.
9.1 TERM OF AGREEMENT. This Agreement shall be effective from the
Effective Date until the earlier to occur of (i) the dissolution of the Company
as provided in the LLC Agreement, and (ii) termination of this Agreement
pursuant to Section 9.2.
9.2 GROUNDS FOR TERMINATION. Notwithstanding Section 9.1, any party may,
at its sole option, terminate this Agreement in the event that:
-19-
<PAGE>
(i) Any other party breaches any of its obligations, representations
or warranties under this Agreement in any material respect and fails to cure
such breach within thirty (30) days of receiving notice thereof;
(ii) Any other party makes an assignment for the benefit of its
creditors, a voluntary or involuntary petition is filed with respect to such
party under any bankruptcy or insolvency law, under the reorganization or
arrangement provisions of the United States Bankruptcy Code, or under the
provisions of any law of like import in connection with such party (which
filing, if involuntary, is not lifted within sixty (60) days following filing),
or the appointment of a trustee or receiver for such party or its property;
(iii) the Launch Date fails to occur within [REDACTED]* after the
Effective Date; or
(iv) with respect to Yahoo and Visa only, either of Yahoo or its
Affiliates on the one hand or Visa or its Affiliates on the other hand, no
longer owns any Percentage Interest in the Company, provided that the election
to terminate this Agreement may only be made by the Party that continues to own
a Percentage Interest in the Company.
9.3 RETURN OF INFORMATION. Within thirty (30) calendar days after the
termination or expiration of this Agreement, each Party shall either deliver to
each other Party, or destroy, all copies of any Confidential Information of such
other Parties provided hereunder in its possession or under its control, and
shall furnish to such other Parties an affidavit signed by an officer of its
company certifying that to the best of its knowledge, such delivery or
destruction has been fully effected.
9.4 SURVIVAL. No termination of this Agreement by one Party shall affect
the rights and obligations hereunder of the other Parties to each other. The
respective rights and obligations of the Parties under Sections 2.2.2, 2.3, 4.3,
5, 7, 8, 9.3 and 10 shall survive any expiration or termination of this
Agreement. No termination or expiration of this Agreement shall relieve any
Party for any liability for any breach of or liability accruing under this
Agreement prior to termination.
10. MISCELLANEOUS.
10.1 INDEPENDENT CONTRACTORS. The Parties to this Agreement are
independent contractors. No Party is an agent, representative, or partner of
any other Party. No Party shall have any right, power or authority to enter
into any agreement for or on behalf of, or incur any obligation or liability of,
or to otherwise bind, any other Party. This Agreement shall not be interpreted
or construed to create an association, agency, joint venture or partnership
between the Parties or to impose any liability attributable to such a
relationship upon any Party. Neither Yahoo nor Visa shall have any liability
whatsoever for the obligations of the Company hereunder or otherwise,
notwithstanding any
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
-20-
<PAGE>
ownership interest in the Company of Yahoo, Visa or their respective Affiliates,
or their involvement or participation in the activities of the Company.
10.2 GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, without reference to
conflicts of laws principles.
10.3 AMENDMENT OR MODIFICATION. This Agreement may not be amended,
modified or supplemented by the parties in any manner, except by an instrument
in writing signed on behalf of each of the Parties by a duly authorized officer
or representative.
10.4 NO ASSIGNMENT. No Party shall transfer or assign any rights or
delegate any obligations hereunder, in whole or in part, whether voluntarily or
by operation of law, without the prior written consent of the other Party. Any
purported transfer, assignment or delegation by any Party without the
appropriate prior written approval shall be null and void and of no force or
effect. Notwithstanding the foregoing, without securing such prior consent,
each Party shall have the right to assign this Agreement and all of its rights
or obligations to (x) any Affiliate of such Party (provided that such Party
remains liable for its obligations hereunder), or (y) any successor of such
Party by way of merger or consolidation or the acquisition of all or
substantially all of the business and assets of the assigning Party relating to
the Agreement, provided that such assignee (i) has at least the same net worth
after such transaction as the assigning Party has immediately prior to such
transaction, (ii) assumes in writing all of the assigning Party's obligations
under this Agreement, and (iii) is not a direct business competitor with any
other Party.
10.5 NOTICES; APPROVALS. Except as otherwise provided herein, any notice or
other communication to be given hereunder shall be in writing and shall be (as
elected by the party giving such notice): (i) personally delivered;
(ii) transmitted by postage prepaid registered or certified airmail, return
receipt requested; (iii) transmitted by electronic mail via the Internet with
receipt being acknowledged by the recipient by return electronic mail (with a
copy of such transmission transmitted by postage prepaid registered or certified
airmail, return receipt requested); (iv) transmitted by facsimile (with a copy
of such transmission by postage paid prepaid registered or certified airmail,
return receipt requested); or (v) deposited prepaid with a nationally recognized
overnight courier service. Unless otherwise provided herein, all notices shall
be deemed to have been duly given on: (a) the date of receipt (or if delivery
is refused, the date of such refusal) if delivered personally, by electronic
mail, facsimile or by courier; or (b) three (3) days after the date of posting
if transmitted by mail. Either party may change its address for notice purposes
hereof on not less than three (3) days prior notice to the other party. Notice
hereunder shall be directed to a Party at the address for such Party which is
set forth in the introduction to this Agreement, attention "President".
10.6 ENTIRE AGREEMENT. This Agreement and the LLC Agreement represent the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all
-21-
<PAGE>
prior and/or contemporaneous agreements and understandings, written or oral
between the parties with respect to the subject matter hereof (including the
letter agreement between Yahoo and Visa dated March 27, 1996). No party has
relied upon any promises, inducements, representations made by any other Party
or expectations of further business dealings except as expressly provided in
this Agreement.
10.7 WAIVER. Any of the provisions of this Agreement may be waived by the
Party entitled to the benefit thereof. No Party shall be deemed, by any act or
omission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by the waiving Party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event shall not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
10.8 WAIVER OF JURY TRIAL. EACH OF YAHOO, VISA AND THE COMPANY DO HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE SUCH RIGHT ANY PARTY
MAY HAVE TO A JURY TRIAL IN EVERY JURISDICTION IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST ANY OTHER PARTY
HERETO OR THEIR RESPECTIVE AFFILIATES, SUCCESSORS OR ASSIGNS IN RESPECT OF ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT
EXECUTED AND DELIVERED BY ANY PARTY IN CONNECTION THEREWITH (INCLUDING, WITHOUT
LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIMS OR
DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR OTHERWISE
VOID OR VOIDABLE).
10.9 NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
person (including any Member of the Company) other than the Parties and the
respective successors or assigns of the Parties, any rights, remedies,
obligations or liabilities whatsoever.
10.10 FEES AND EXPENSES. Each Party shall be responsible for the
payment of its own costs and expenses, including attorneys' fees and expenses,
in connection with the negotiation and execution of this Agreement.
10.11 RECOVERY OF COSTS AND EXPENSES. If any Party to this Agreement
brings an action against any other Party to enforce its rights under this
Agreement, the prevailing Party shall be entitled to recover all reasonable
costs and expenses, including attorneys' fees and costs incurred in connection
with such action, including any appeal of such action.
10.12 SEVERABILITY. If the application of any provision or provisions
of this Agreement to any particular facts of circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then: (i) the
validity and
-22-
<PAGE>
enforceability of such provision or provisions as applied to any other
particular facts or circumstances and the validity of other provisions of this
Agreement shall not in any way be affected or impaired thereby; and (ii) such
provision or provisions shall be reformed without further action by the Parties
hereto and only to the extent necessary to make such provision or provisions
valid and enforceable when applied to such particular facts and circumstances.
10.13 INCONSISTENT AGREEMENTS. No Party shall agree to any contractual
provision or term in any agreement with any third party which contains a
provision or term which would cause such Party to be in breach of this
Agreement.
10.14 COUNTERPARTS; FACSIMILES. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one and the
same instrument. Each Party shall receive a duplicate original of the
counterpart copy or copies executed by it. For purposes hereof, a facsimile
copy of this Agreement, including the signature pages hereto, shall be deemed to
be an original. Notwithstanding the foregoing, the Parties shall each deliver
original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
The Parties to this Agreement by their duly authorized representatives have
executed this Agreement as of the date first above written.
Yahoo! Inc., a Visa International Service Association, a
California corporation Delaware corporation
By: /s/ Timothy Koogle By: /s/Bennet R. Katz
--------------------------- --------------------------------------
Title: President and CEO Title: /s/ Group Executive Vice President
----------------------- and General Counsel
----------------------------------
Yahoo! MarketPlace, L.L.C., a
Delaware limited liability company
By: /s/ Scott Randall
---------------------------
Title: President
-----------------------
<PAGE>
EXHIBIT 11
YAHOO! INC.
COMPUTATION OF NET LOSS
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
--------------------------- ----------------------------
September 30, September 30, September 30, September 30,
1996 1995 1996 1995 (a)
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net Loss ($1,145,000) ($371,000) ($2,430,000) ($726,000)
Weighted average number of shares used in computation:
Common Stock 26,504,000 10,013,000 24,093,000 10,013,000
Preferred Stock 7,738,000 7,738,000
Number of common shares issued in accordance with
Staff Accounting Bulletin No. 83 4,790,000 4,790,000
---------- ---------- ---------- ----------
Total 26,504,000 22,541,000 24,093,000 22,541,000
---------- ---------- ---------- ----------
Net loss per common and common equivalent share ($0.04) ($0.02) ($0.10) ($0.03)
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
</TABLE>
(a) Includes the Company's results from March 5, 1995 (inception) through
September 30, 1995.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM YAHOO! INC.
FORM 10-Q FOR THE PERIOD ENDED SEPTEMBER 30, 1996 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 27,708,000
<SECURITIES> 58,747,000
<RECEIVABLES> 3,101,000
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 90,207,000
<PP&E> 1,621,000
<DEPRECIATION> 0
<TOTAL-ASSETS> 106,887,000
<CURRENT-LIABILITIES> 4,697,000
<BONDS> 0
0
0
<COMMON> 99,000
<OTHER-SE> 101,807,000
<TOTAL-LIABILITY-AND-EQUITY> 106,887,000
<SALES> 0
<TOTAL-REVENUES> 10,522,000
<CGS> 0
<TOTAL-COSTS> 1,725,000
<OTHER-EXPENSES> 13,816,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (2,430,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,430,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,430,000)
<EPS-PRIMARY> (0.10)
<EPS-DILUTED> 0.00
</TABLE>
