<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 1999
REGISTRATION NO. 333-71997
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
WORLDGATE COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4841 23-2866697
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code No.) Identification No.)
</TABLE>
3220 TILLMAN DRIVE, SUITE 300
BENSALEM, PENNSYLVANIA 19020
(215) 633-5100
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
RANDALL J. GORT, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
WORLDGATE COMMUNICATIONS, INC.
3220 TILLMAN DRIVE, SUITE 300
BENSALEM, PENNSYLVANIA 19020
(215) 633-5100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
WALTER J. MOSTEK, JR., ESQ. JEFFREY A. STEIN, ESQ.
DRINKER BIDDLE & REATH LLP HALE AND DORR LLP
1000 WESTLAKES DRIVE, SUITE 300 60 STATE STREET
BERWYN, PENNSYLVANIA 19312-2409 BOSTON, MASSACHUSETTS 02109
(610) 993-2200 (617) 526-6000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / / ______________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ______________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under The Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 7, 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS
4,500,000 SHARES
[LOGO]
WORLDGATE COMMUNICATIONS, INC.
COMMON STOCK
------------------
This is an initial public offering of shares of common stock of WorldGate
Communications, Inc. No public market currently exists for our common stock. We
estimate that the initial public offering price will be between $12 and $14 per
share.
PROPOSED TRADING SYMBOL:
NASDAQ NATIONAL MARKET SYMBOL--WGAT
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
BEGINNING ON PAGE 6.
<TABLE>
<CAPTION>
PER SHARE TOTAL
----------- ---------
<S> <C> <C>
Public Offering Price.................................................... $ $
Underwriting Discounts and Commissions................................... $ $
Proceeds to WorldGate.................................................... $ $
</TABLE>
We have granted to the underwriters an option to purchase up to 675,000
additional shares to cover over-allotments.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
GERARD KLAUER MATTISON & CO., INC.
JEFFERIES & COMPANY, INC.
JANNEY MONTGOMERY SCOTT INC.
Prospectus dated , 1999
<PAGE>
This prospectus includes statistical data regarding our company, the
Internet and the industries in which we compete. This data is based on our
records or is taken or derived from information published or prepared by various
sources, including International Data Corporation, Paul Kagan Associates, Inc.,
Cahners Business Information--publishers of Cablevision Blue Book and Jupiter
Communications, providers of market and strategic information for the
information technology industry. Paul Kagan is a stockholder of WorldGate.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. WE
HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM THAT
WHICH IS CONTAINED IN THIS PROSPECTUS. THIS PROSPECTUS MAY BE USED ONLY WHERE IT
IS LEGAL TO SELL THESE SECURITIES. THE INFORMATION IN THIS PROSPECTUS MAY ONLY
BE ACCURATE ON THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY
OF THIS PROSPECTUS OR OF ANY SALE OF COMMON STOCK.
DEALER PROSPECTUS DELIVERY OBLIGATION
Until , 1999, all dealers that effect transactions in these
securities, whether or not participating in this offering, may be required to
deliver a prospectus. This is in addition to the dealers' obligation to deliver
a prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
<PAGE>
PROSPECTUS SUMMARY
YOU SHOULD READ THE FOLLOWING SUMMARY TOGETHER WITH THE MORE DETAILED
INFORMATION REGARDING OUR COMPANY AND THE COMMON STOCK BEING SOLD IN THIS
OFFERING AND OUR FINANCIAL STATEMENTS AND RELATED NOTES INCLUDED ELSEWHERE IN
THIS PROSPECTUS. UNLESS OTHERWISE INDICATED, THE INFORMATION IN THIS PROSPECTUS
ASSUMES:
- THE UNDERWRITERS DO NOT EXERCISE THEIR OVER-ALLOTMENT OPTION,
- AN OFFERING PRICE OF $13.00 PER SHARE, THE MID-POINT OF THE ASSUMED PRICE
RANGE,
- THE CONVERSION OF ALL OUTSTANDING SHARES OF SERIES A, SERIES B AND SERIES
C PREFERRED STOCK AND ALL OUTSTANDING SHARES OF CLASS B COMMON STOCK INTO
COMMON STOCK,
- THE ISSUANCE OF 274,592 SHARES OF COMMON STOCK TO HOLDERS OF SERIES C
PREFERRED STOCK PURSUANT TO ANTI-DILUTION PROVISIONS, AND
- A 2-FOR-3 STOCK SPLIT TO BE EFFECTED IMMEDIATELY BEFORE THE OFFERING.
THE COMPANY
We provide a new television-based Internet service, the WORLDGATE(SM)
Service, that enables cable television subscribers to access the Internet
through their televisions. The WORLDGATE Service provides:
- full featured, high speed, easy to use, always connected, low cost
consumer Internet access,
- a centralized computer network design that allows for easy deployment and
set-up, central system management and centrally administered upgrades, and
- a television-based entry point to the Internet enabling viewers to
dynamically link from television programming and advertising to related
Web sites.
We believe this low cost combination of television and the Internet will
help transform advertising, electronic commerce and information delivery for the
consumer mass market. Our service uses a standard cable television box that has
been WORLDGATE enabled and does not require a personal computer or additional
set-top appliance.
The WORLDGATE Service is designed to operate with cable systems using
advanced analog or current and future generation digital cable television
set-top boxes. We believe that we are the only company that can currently
provide an Internet television service through either an advanced analog or
digital cable box. We believe this is particularly important to the many cable
operators who are deploying, or will deploy, both types of cable boxes.
Our CHANNEL HYPERLINKING(SM) technology integrates the dynamics of the
Internet with television's proven advertiser-sponsored entertainment model. This
technology will enable a viewer watching a television program or advertisement
to link within seconds to a related interactive Web site. We are working with
over 70 television programmers, advertisers, advertising agencies and e-commerce
merchants to develop a centralized database that provides viewers with CHANNEL
HYPERLINKING capability.
Our executive offices are located at 3220 Tillman Drive, Suite 300,
Bensalem, Pennsylvania 19020. Our telephone number is (215) 633-5100.
3
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Common stock offered......... 4,500,000 shares
Common stock to be
outstanding immediately
after this offering........ 20,433,282 shares
Use of proceeds.............. We will use the net proceeds of this offering to repay
outstanding debt, for capital expenditures and for general
corporate purposes, including working capital and research
and development
Proposed Nasdaq National
Market symbol for our
common stock............... WGAT
</TABLE>
The number of shares of our common stock offered and common stock
outstanding immediately after this offering is based on shares of our common
stock outstanding as of March 16, 1999, excluding 1,646,309 shares of our common
stock subject to outstanding options and warrants and 19,581 shares of our
common stock available for future grants under our stock option plan. If the
underwriters exercise in full the over-allotment option, there will be
21,108,282 shares outstanding.
4
<PAGE>
SUMMARY FINANCIAL INFORMATION
(In thousands, except share and per share data)
The following table summarizes our financial data. The data presented in
this table is derived from the "Selected Financial Information" and the
financial statements and notes which are included elsewhere in this prospectus.
You should read those sections for a further explanation of the financial data
summarized here. The pro forma balance sheet data gives effect to the sale of
the series C preferred stock in January and February 1999 for aggregate gross
proceeds of approximately $7.6 million. In addition, the pro forma balance sheet
gives effect to the issuance of notes payable in March 1999 in the face amount
of $6 million which are recorded net of original issue discount of $530,000 and
an additional discount of $1,030,000, representing the value of detachable
warrants issued in connection with this debt. The pro forma as adjusted balance
sheet data also gives effect to this offering and the application of the
estimated net proceeds of approximately $53.6 million. The pro forma net loss
per common share data gives effect to the conversion of all preferred stock
outstanding as of December 31, 1998 into common stock.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------
<S> <C> <C> <C>
1996 1997 1998
------------ ------------ -------------
STATEMENT OF OPERATIONS DATA:
Revenues.............................................................. $ 141 $ 1,022
Costs and expenses:
Cost of revenues.................................................. 1,530 9,919
Engineering and development....................................... $ 1,408 6,981 9,684
Sales and marketing............................................... 428 3,623 5,157
General and administrative........................................ 1,093 2,432 3,486
Depreciation and amortization..................................... 22 119
------------ ------------ -------------
Total costs and expenses...................................... 2,929 14,588 28,365
Loss from operations.................................................. (2,929) (14,447) (27,343)
Other income, net..................................................... 8 423 423
Interest expense...................................................... (2) (17) (101)
------------ ------------ -------------
Net loss.............................................................. (2,923) (14,041) (27,021)
Accretion on preferred stock.......................................... (75) (2,436) (6,145)
------------ ------------ -------------
Net loss available to common shareholders............................. $ (2,998) $ (16,477) $ (33,166)
------------ ------------ -------------
------------ ------------ -------------
Historical net loss per common share.................................. $ (0.33) $ (1.81) $ (3.64)
Historical weighted average common shares outstanding................. 9,100,801 9,100,801 9,100,801
Pro forma net loss per common share................................... $ (2.24)
-------------
-------------
Pro forma weighted average common shares outstanding.................. 14,785,714
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-------------
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1998
-------------------------------------------
<S> <C> <C> <C>
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
------------ ------------- --------------
BALANCE SHEET DATA:
Cash and cash equivalents........................................... $ 368 $ 13,438 $ 61,043
Total assets........................................................ 5,621 18,691 66,296
Total indebtedness.................................................. 1,127 5,567 1,127
Total mandatory redeemable preferred stock.......................... 49,276
Total stockholders' equity (deficit)................................ (52,240) 6,546 58,591(1)
OTHER DATA:
Common shares outstanding........................................... 9,100,801 15,658,690 20,433,282
</TABLE>
- ------------------------
(1) Adjusted to reflect an estimated extraordinary loss of approximately
$1,560,000 on the early extinguishment of notes payable. This loss will be
recognized upon the repayment of the notes payable with a portion of the net
proceeds from this offering. See "Use of Proceeds" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
5
<PAGE>
RISK FACTORS
AN INVESTMENT IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS, AS WELL AS THE OTHER INFORMATION
IN THIS PROSPECTUS, BEFORE INVESTING IN OUR COMMON STOCK.
WE MAY EXPERIENCE DIFFICULTIES SUFFERED BY COMPANIES IN EARLY STAGES OF
DEVELOPMENT
We began operations in March 1995 and our service was first made
commercially available in the third quarter of 1998. As a result, our operating,
sales and marketing and other strategies are still being developed, and we do
not have a history which may give us or you an indication of how we may respond
to situations presented to us. If we are not successful in implementing our
marketing and business plans on a timely basis or otherwise effectively managing
our development, our business, operating results and financial condition will be
materially and adversely affected.
IF WE CONTINUE TO INCUR LOSSES, WE MAY NOT BE ABLE TO FINANCE THE COMMERCIAL
DEPLOYMENT OF THE WORLDGATE SERVICE
We have experienced losses and had negative cash flow in each quarter and
year since inception, and we expect to continue to operate at a loss for the
foreseeable future. For us to make a profit, we need to increase our revenues
and gross profit margin. If we are not able to do so, our losses may extend
beyond the foreseeable future and we may not be able to finance the commercial
deployment, development and enhancement of the WORLDGATE Service.
Our aggregate revenues from inception to December 31, 1998 were
approximately $1.2 million, and our aggregate accumulated deficit at December
31, 1998 was approximately $51.9 million. In addition, we currently intend to
increase our operating expenses and capital expenditures in order to continue
the commercial deployment of the WORLDGATE service. As a result, we expect to
experience substantial additional operating losses and negative cash flow for
the foreseeable future.
WE MAY BE UNABLE TO OBTAIN NECESSARY ADDITIONAL CAPITAL TO FUND OPERATIONS IN
THE FUTURE
To date, we have funded operations primarily through private sales of equity
securities. If we are unable to obtain additional financing on terms acceptable
to us as needed, our business, operating results and financial condition would
be materially and adversely affected. Our capital requirements in the future
will depend on numerous factors, including:
- the rate of acceptance of the WORLDGATE Service by cable operators, cable
subscribers, advertisers, television programmers, e-commerce companies and
Internet content providers,
- our ability to maintain and expand the number of subscribers, and
- the rate of commercialization of the WORLDGATE Service.
We cannot accurately predict the timing and amount of our capital
requirements. Any additional equity financing, if available, may be dilutive to
our stockholders, and debt financing, if available, may involve significant
restrictions on our financing and operating activities.
BECAUSE TELEVISION-BASED INTERNET ACCESS IS NEW, WE CANNOT BE CERTAIN THAT A
MARKET FOR OR SUSTAINABLE DEMAND FOR THE WORLDGATE SERVICE WILL DEVELOP
The market for television-based Internet access is new and evolving, and no
single technology or approach to providing this access has yet been broadly
adopted by consumers or cable operators. As a result, we cannot guarantee that a
market for television-based Internet access in general, or for the WORLDGATE
Service in particular, will develop or that demand for the WORLDGATE Service
will be sustainable. If the market does not develop, develops more slowly than
expected or becomes saturated with competitors, our business,
6
<PAGE>
operating results, and financial condition will be materially and adversely
affected.
THE COMPETITIVE MARKET FOR INTERNET ACCESS MAY LIMIT DEMAND OR PRICING FOR THE
WORLDGATE SERVICE
We experience intense competition. Many companies provide Internet access
and other services which provide functionality similar to those comprising the
WORLDGATE Service. As a result of this competition, demand for the WORLDGATE
Service may suffer, we may be restricted in the pricing we can charge for the
WORLDGATE Service and our business, financial condition and results of
operations will be adversely affected. Competitors provide their services
through a variety of technologies, which are in various stages of implementation
and adoption. Many of our competitors have significantly greater financial,
technical, marketing, distribution, customer support, other resources, name
recognition, compelling content and access to consumers, and more established
relationships with cable operators, advertisers and content and application
providers than we have. See "Business--Competition."
WE MAY NOT SUCCEED IF CABLE OPERATORS DO NOT OFFER THE WORLDGATE SERVICE TO
THEIR SUBSCRIBERS
Because we use a cable operator's system to offer the WORLDGATE Service to
that cable operator's subscribers, our growth and future success depends
substantially upon our ability to convince cable operators to offer the
WORLDGATE Service to their subscribers. As of the date of this prospectus, we
have only entered into a limited number of non-exclusive agreements with cable
operators providing for the commercial launch of the WORLDGATE Service. If cable
operators determine that our service is not viable as a business proposition or
if they determine that the service does not meet their business or operational
expectations or strategies, the WORLDGATE Service will not be offered to their
subscribers. Furthermore, because there are a limited number of cable operators
and because we expect that cable operators implementing the WORLDGATE Service
will seek references from other cable operators, we may have a difficult time
selling the WORLDGATE Service if our early trials are not successful.
OUR REVENUES WILL DEPEND ON THE MANNER IN WHICH CABLE OPERATORS MARKET AND PRICE
THE WORLDGATE SERVICE
As a result of our dependence on cable operators to provide the WORLDGATE
Service to their subscribers, we have limited or no control over a number of
important factors, including:
- the cable operators' advertising or marketing strategy, if any, regarding
their offering of the WORLDGATE Service to their subscribers,
- the monthly fees cable operators may charge to their subscribers for the
WORLDGATE Service, and
- the extent to which cable operators purchase additional WorldGate
equipment to avoid reduction in performance as subscriber demand grows.
Accordingly, our revenues may not meet our expectations if the cable
operators' marketing, pricing and operating strategies are not consistent with
our business model.
THE COMMERCIAL ADOPTION OF THE WORLDGATE SERVICE MAY BE DELAYED IF CABLE
OPERATORS DO NOT CONTINUE TO UPGRADE THEIR SYSTEM INFRASTRUCTURES TO SUPPORT
TWO-WAY DATA TRANSMISSIONS
The adoption of the WORLDGATE Service is dependent upon continued investment
by cable operators to upgrade their infrastructures to support two-way data
transmissions. It is uncertain whether cable operators will upgrade their
infrastructures and the failure of cable operators to complete these upgrades in
a timely and satisfactory manner would adversely affect the market for the
WORLDGATE Service.
Although the WORLDGATE Service can operate over one-way cable plant that is
only capable of transmitting programming to subscribers, it can do so only in
conjunction with a telephone connection. As such, it is less convenient and
efficient for a subscriber to use the WORLDGATE Service over one-way cable plant
and to date, all
7
<PAGE>
of the cable operators who have agreed to deploy the WORLDGATE Service have done
so only over two-way cable plants that are capable of transmitting information
from the cable operator's facility to the subscribers and vice versa. We cannot
assure you that cable operators will upgrade their cable plant to two-way plant
in the near future, if at all. In the event that they do not do so, our
business, financial condition and results of operations could be materially
adversely affected.
CABLE OPERATORS MAY BE CONTRACTUALLY LIMITED IN THEIR ABILITY TO OFFER THE
WORLDGATE SERVICE
We are aware that some cable operators, such as Cablevision, Comcast
Corporation, Cox Enterprises, Inc. and Tele-Communications, Inc., whose cable
systems serve more than 26 million U.S. homes or approximately 26% of all U.S.
homes, have entered into a distribution agreement with At Home Corporation. The
distribution agreement with At Home contains exclusivity provisions that purport
to prohibit these cable operators from conducting or participating in any
business in the United States that involves the provision of some residential
Internet services over their cable plants at data transmission speeds greater
than 128 Kbps. This distribution agreement could be interpreted to preclude or
hinder these cable operators from offering the WORLDGATE Service to their
subscribers at speeds in excess of 128 Kbps. If cable operators are unwilling or
unable to offer the WORLDGATE Service to subscribers in these cable systems, our
business, financial condition and results of operations would be materially
adversely affected.
CABLE OPERATORS/CABLE BOX MANUFACTURERS MAY NOT OFFER THE WORLDGATE SERVICE
BECAUSE THEY MAY HAVE POTENTIAL CONFLICTS OF INTEREST
Some cable operators and cable box manufacturers are stockholders of other
companies that provide Internet services. To the extent that these cable
operators elect not to offer the WORLDGATE Service because of these
affiliations, our business, financial condition and results of operations could
be materially adversely affected. For example, TCI, Comcast, Cox and Cablevision
are stockholders of At Home, and MediaOne Group, Inc. and Time Warner, the
second largest cable company in the United States, have established their own
cable-based Internet service, called Road Runner, with proprietary content
featuring various Time Warner publications and services. Also, some companies
that provide Internet services are stockholders of cable operators or cable box
manufacturers. We cannot assure you that other companies will not invest in
cable operators and/or cable box manufacturers. As a result, these cable
operators may be reluctant to provide any service, including the WORLDGATE
Service, that provides other Internet services in competition with their
affiliates.
WE CANNOT OFFER THE WORLDGATE SERVICE IF CABLE BOX MANUFACTURERS DO NOT
INCORPORATE OUR TECHNOLOGY INTO THEIR CABLE BOXES
In order to access the WORLDGATE Service, a consumer needs a WORLDGATE
enabled digital or advanced analog cable box. Although we believe that we have
developed strong relationships with General Instrument and Scientific-Atlanta,
neither company is required to install our WorldGate technology in its cable
boxes and neither company is prohibited from establishing relationships with any
of our competitors and incorporating our competitors' technologies in their
cable boxes. In addition, our technology must be certified by General Instrument
and Scientific-Atlanta for each model of cable box before cable operators are
willing to deploy them to their subscribers, and, although we have certification
for some models, we cannot assure you that our technology will be certified for
other models on a timely basis, if at all.
Additionally, because General Instrument and Scientific-Atlanta are the two
largest suppliers of cable boxes, their decision not to install our WORLDGATE
technology in their cable boxes or to develop similar technology with our
competitors would have a material adverse effect on our future success. Both
General Instrument and Scientific-Atlanta have joined us in promoting the
WORLDGATE Service and if either company severed this relationship with us, we
would lose a valuable sales and marketing resource.
8
<PAGE>
WE ARE SUBJECT TO CAPACITY CONSTRAINTS AND SYSTEM FAILURES
Due to the limited deployment of the WORLDGATE Service, the ability of our
service to accommodate a substantial number of users is not yet known. We cannot
assure you that we will be able to provide high quality performance and high
transaction speeds as the number of subscribers grows or their usage increases.
In addition, as subscriber penetration grows it may be necessary for cable
operators to purchase additional equipment, and we cannot assure you that they
will do so.
The performance of the WORLDGATE Service is also subject to reduction in
performance and interruption from human errors, telecommunication failures,
computer viruses and similar events. Any of these problems in our systems or
those of cable operators could result in reduced subscriber demand. We have
experienced performance reduction and service interruptions in the past and we
expect that these problems will continue. Our failure to provide uninterrupted
service at a level of performance acceptable to subscribers would have a
material adverse effect on our business, financial condition and results of
operations.
PENDING INTELLECTUAL PROPERTY CLAIMS AGAINST US CAN BE COSTLY AND RESULT IN THE
LOSS OF SIGNIFICANT RIGHTS
We are subject to patent litigation which claims that we are infringing
other parties' intellectual property rights.
- Interactive Channel Technologies, Inc. and SMI Holdings, Inc.,
subsidiaries of Source Media, Inc., filed a complaint against us alleging
that we infringed patents issued to Source Media.
- Advanced Interactive, Inc. ("AII") filed a complaint against us and
several other defendants alleging that the defendants infringed a patent
assigned to AII.
If the plaintiffs win either lawsuit, we could be precluded from offering the
WORLDGATE Service. Irrespective of the validity or the successful assertion of
these claims, they could result in significant costs and diversion of management
time and resources. This would have a material adverse effect on our business,
financial condition and results of operations. We cannot assure you that
licenses to any of the technologies owned by the plaintiffs in these lawsuits
would be available to us on commercially reasonable terms, if at all.
THE ADOPTION OF OUR CHANNEL HYPERLINKING TECHNOLOGY WILL BE ADVERSELY AFFECTED
IF ADVERTISERS AND TELEVISION PROGRAMMERS DO NOT PROVIDE US WITH NECESSARY
CONTENT
Our future growth and long-term success depends substantially on our ability
to convince advertisers and television programmers to use our CHANNEL
HYPERLINKING technology with their advertisements and television programs. No
advertiser or programmer had, as of March 15, 1999, paid us to use our CHANNEL
HYPERLINKING technology, or is obligated to use our CHANNEL HYPERLINKING
technology in their advertisements or programs. We believe that the adoption of
the CHANNEL HYPERLINKING technology is substantially dependent on:
- our service meeting advertisers' and programmers' business or operational
expectations or strategies, and
- us achieving a significant number of subscribers to the WORLDGATE Service.
We cannot assure you that we will meet or achieve either of the above. If we
fail to incorporate our CHANNEL HYPERLINKING technology in a substantial number
of advertisements and programs, our business, operating results and financial
condition could be materially adversely affected.
THE LOSS OF ANY ONE OF OUR LARGEST CUSTOMERS COULD ADVERSELY AFFECT OUR REVENUES
AND FUTURE PROSPECTS
We have in the past derived, and expect in the future to derive, a
significant portion of our revenues from a limited number of customers. In the
event that any of these customers cease to offer the WORLDGATE Service, or if
any of these customers do not give a positive reference on the WORLDGATE Service
to other prospective customers, our business, operating results and financial
condition could be materially adversely affected. In 1997, three cable operators
9
<PAGE>
accounted for approximately 100% of our revenues and in 1998, ten cable
operators accounted for approximately 98% of our revenues. Moreover, in 1998,
Charter and Click!Network accounted for 44% and 10%, respectively, of our
revenues. We cannot assure you that any of these customers will continue to
offer the WORLDGATE Service to their cable subscribers.
WE MAY HAVE LIABILITY FOR INFORMATION RETRIEVED AND REPLICATED ON THE INTERNET
Claims for negligence, copyright or trademark infringement or other legal
theories could be made against us because information can be downloaded and
redistributed by users of the WORLDGATE Service. Copyright and trademark laws
are evolving both domestically and internationally and we are uncertain as to
their applicability to the WORLDGATE Service. The imposition of liability for
information carried by us would have a material adverse effect on our business,
operating results and financial condition.
WE MAY HAVE LIABILITY FOR E-COMMERCE TRANSACTIONS
As part of our business, we are seeking to enter into agreements with
content providers, advertisers and e-commerce merchants under which we will
receive a share of revenue from the purchase of goods and services by users of
the WORLDGATE Service. These arrangements may expose us to additional legal
risks and uncertainties, including potential liabilities to consumers of these
products and services. Our insurance may not cover potential claims of this type
or may not be adequate to indemnify us for all liability that may be imposed.
WE COULD BECOME SUBJECT TO BURDENSOME GOVERNMENT REGULATION WHICH AFFECTS OUR
ABILITY TO OFFER OUR SERVICE OR WHICH AFFECTS DEMAND FOR OUR SERVICE
We are subject to varying degrees of federal, state, local and foreign
regulations as well as laws enacted by the U.S. Congress and other governments.
The Federal Communications Commission has established regulations that among
things, set licensure, installation and equipment standards for communications
systems. It remains uncertain how these regulations may be applied to Internet
services offered over cable television systems.
It is also anticipated that due to the increasing popularity and use of the
Internet, it will be subject to increased attention and regulation. These laws
and regulations may regulate issues such as user privacy, defamation, network
access, pricing, taxation, content, quality of products and services and
intellectual property ownership and infringement. These laws and regulations
could expose us to liability, materially increase our cost of providing our
service, and decrease the growth and acceptance of the Internet in general and
access to the Internet over cable systems.
OUR BUSINESS WOULD SUFFER IF WE WERE TO LOSE THE SERVICES OF MR. KRISBERGH OR
OTHER KEY PERSONNEL
Our success depends in significant part upon the continued service of our
key technical, sales and senior management personnel, particularly Mr.
Krisbergh, who has significant relevant experience in the cable television
industry. No officer or employee of WorldGate is bound by an employment
agreement, and accordingly could terminate his or her relationship with us at
any time. Our future success will also depend on our ability to attract, train,
retain and motivate highly qualified senior management, technical, marketing and
sales personnel. Because competition for these personnel is intense, we cannot
assure you that we will be able to do so.
YOUR ABILITY TO INFLUENCE THE OUTCOME OF STOCKHOLDER VOTES MAY BE LIMITED BY THE
SIGNIFICANT OWNERSHIP INTEREST OF OUR CHAIRMAN AND CHIEF EXECUTIVE OFFICER
After the completion of this offering, Hal M. Krisbergh will beneficially
own approximately 31.9% of the outstanding common stock. Mr. Krisbergh will have
the voting power to exercise substantial control over the election of our entire
board of directors and all votes on matters requiring stockholder approval. This
concentration of ownership may also have the
10
<PAGE>
effect of delaying or preventing a change in control of WorldGate.
YEAR 2000 RISKS MAY ADVERSELY AFFECT WORLDGATE AND THE DEMAND FOR THE WORLDGATE
SERVICE
Year 2000 problems experienced by us or any third parties could materially
adversely affect our business. Additionally, demand for the WORLDGATE Service
would suffer if the Internet experiences serious disruptions arising from the
Year 2000 problem. We cannot guarantee you that our own systems will be Year
2000 compliant in a timely manner, that any of our participating sellers, such
as cable operators, or other Web site vendors will be Year 2000 compliant in a
timely manner, or that there will not be problems with technology systems
working together. We also cannot guarantee that the Internet generally, and the
WORLDGATE Service specifically, will continue without serious disruptions
arising from the Year 2000 problem. Given the pervasive nature of the Year 2000
problem, we cannot guarantee that disruptions in other industries and market
segments will not adversely affect our business. Moreover, the costs related to
Year 2000 compliance could be significant.
ANTI-TAKEOVER PROVISIONS IN OUR CHARTER DOCUMENTS COULD DISCOURAGE UNWANTED
TAKEOVER ATTEMPTS AND COULD REDUCE THE OPPORTUNITY FOR STOCKHOLDERS TO GET A
PREMIUM FOR THEIR SHARES
We are subject to Delaware laws and to provisions of our certificate of
incorporation and by-laws that could have the effect of delaying, deterring or
preventing a change in control of WorldGate. As a result, our management could
attempt to utilize these laws and provisions to discourage or reject unsolicited
bids to acquire us, including bids that would have paid stockholders a premium
over the then current market price of their shares.
SUBSTANTIAL SALES OF OUR COMMON STOCK COULD LOWER OUR STOCK PRICE
The market price for our common stock could drop as a result of sales of a
large number of our presently outstanding shares after this offering, or the
perception that these sales could occur. These factors also could make it more
difficult for us to raise funds through future offerings of our common stock.
See "Shares Eligible For Future Sale."
OUR RESULTS CAN MATERIALLY DIFFER FROM THOSE FORECASTED OR EXPRESSED IN THE
FORWARD-LOOKING STATEMENTS CONTAINED IN THIS PROSPECTUS
This prospectus contains forward-looking statements that are not historical
facts, but rather are based on our current expectations, estimates and
projections about WorldGate's industry and our beliefs and assumptions. Words
such as "anticipates," "expects," "intends," "plans," "believes," "seeks,"
"estimates" and similar expressions are intended to identify forward-looking
statements. These statements are not guarantees of future performance and are
subject to some risks, uncertainties and other factors, many of which are beyond
our control, are difficult to predict and could cause actual results to differ
materially from those expressed or forecasted in the forward-looking statements.
These risks and uncertainties are described in "Risk Factors" and elsewhere in
this prospectus. We caution you not to place undue reliance on these
forward-looking statements, which reflect our management's view only as of the
date of this prospectus. We are not obligated to update these statements or
publicly release the result of any revisions to them to reflect events or
circumstances after the date of this prospectus or to reflect the occurrence of
unanticipated events.
11
<PAGE>
USE OF PROCEEDS
We estimate that we will receive net proceeds of approximately $53.6
million, approximately $61.8 million if the underwriters fully exercise their
over-allotment option, from the sale of our common stock offered by us in this
offering based on an assumed offering price of $13.00 per share. This estimate
is after deducting underwriting discounts and commissions and other fees and
expenses payable by us.
We intend to use approximately $6.0 million of the net proceeds from this
offering to repay the outstanding balance of our notes payable that were issued
to two institutional investors in March 1999. These discounted notes, which bear
a stated interest rate of 12.48%, are due in September 1999 and December 1999
but become due and payable on the closing of this offering. We intend to use
approximately $2.0 million of the net proceeds from this offering for capital
expenditures over the next 18 months and to use the remaining net proceeds from
this offering for working capital and general corporate purposes. We may use a
portion of the net proceeds to acquire or invest in complementary businesses or
products or to obtain the right to use complementary technologies although we
have no current plans to do so. The amounts and the timing of any such use may
vary significantly depending upon a number of factors, including our revenue
growth, asset growth, cash flow and acquisition activities. Pending such uses,
the net proceeds of this offering will be invested in short-term,
investment-grade, interest-bearing securities. We currently anticipate that the
net proceeds received by us from this offering, together with cash generated
from operations and existing cash balances will be sufficient to satisfy our
operating cash needs for at least 18 months from receipt of the proceeds. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
DIVIDEND POLICY
We have never paid nor declared any cash dividends. We currently intend to
retain future earnings, if any, for use in our business, and, therefore, we do
not anticipate paying or declaring any cash dividends in the foreseeable future.
The payment of future dividends, if any, will depend among other things, on our
results of operations, cash flows and financial condition and on such other
factors as the Board of Directors may, in its discretion, consider relevant.
12
<PAGE>
CAPITALIZATION
The following table sets forth our capitalization as of December 31, 1998:
- on a historical basis,
- on a pro forma basis to reflect the sale of 697,437 additional shares of
series C preferred stock in January and February 1999 for aggregate gross
proceeds of approximately $7.6 million, and the issuance of notes payable
in March 1999 in the face amount of $6,000,000 which are recorded net of
original issue discount of $530,000 and an additional discount of
$1,030,000, representing the value of detachable warrants issued in
connection with this debt, and
- on a pro forma as adjusted basis to give effect to these sales and
issuance of notes payable and this offering, and the application of the
estimated net proceeds of approximately $53.6 million therefrom. The pro
forma as adjusted basis also reflects an estimated extraordinary loss of
approximately $1,560,000 on the early extinguishment of the notes payable.
See "Use of Proceeds" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
This table excludes 641,343 shares of common stock issuable upon exercise of
all stock options outstanding as of December 31, 1998, at exercise prices
between $.75 per share and $4.50 per share, and 311,819 shares of common stock
issuable upon exercise of all outstanding warrants as of December 31, 1998, and
an additional 420,738 shares of common stock issuable upon the exercise of
warrants issued with the notes payable in March 1999. The table does not include
options granted after December 31, 1998. You should read the following
information in conjunction with our financial statements and the related notes
thereto and the other financial information included elsewhere in this
prospectus. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations."
<TABLE>
<CAPTION>
DECEMBER 31, 1998
-----------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
--------- ----------- -----------
<S> <C> <C> <C>
(IN THOUSANDS)
Notes payable................................................................ $ 1,111 $ 5,551 $ 1,111
Capital leases............................................................... 16 16 16
Series A Convertible Mandatory Redeemable Preferred Stock, 2,752,111 shares
authorized, issued and outstanding; no shares authorized or outstanding pro
forma and pro forma as adjusted............................................ 16,578
Series B Convertible Mandatory Redeemable Preferred Stock, 3,270,760 shares
authorized, 2,803,031 shares outstanding; no shares authorized or
outstanding pro forma and pro forma as adjusted............................ 23,569
Series C Convertible Mandatory Redeemable Preferred Stock, 3,181,819 shares
authorized actual, 832,277 shares outstanding; no shares authorized or
outstanding pro forma and pro forma as adjusted............................ 9,129
Warrant for Series B Convertible Mandatory Redeemable Preferred Stock........ 881
Stockholders' equity (deficit):
Preferred Stock, $.01 par value, no shares authorized, issued or
outstanding actual; 13,500,000 authorized, no shares outstanding pro
forma and pro forma as adjusted
Class A Common Stock, $.01 par value, 50,000,000 shares authorized, no
shares issued and outstanding; 15,658,690 shares outstanding pro forma;
20,433,282 shares outstanding pro forma as adjusted...................... 157 204
Class B Common Stock, $.01 par value, 27,608,000 authorized, 9,100,801
shares outstanding; no shares outstanding pro forma and pro forma as
adjusted................................................................. 91
Additional paid in capital................................................. 56,809 110,367
Warrant for common stock................................................... 1,911 1,911
Accumulated deficit........................................................ (51,876) (51,876) (53,436)
Deferred compensation...................................................... (455) (455) (455)
--------- ----------- -----------
Total stockholders' equity (deficit)..................................... (52,240) 6,546 58,591
--------- ----------- -----------
Total capitalization......................................................... $ (956) $ 12,113 $ 59,718
--------- ----------- -----------
--------- ----------- -----------
</TABLE>
13
<PAGE>
DILUTION
The pro forma net tangible book value of WorldGate's class A common stock as
of December 31, 1998 was approximately $6,546,000, or $.42 per share. "Pro forma
net tangible book value per share" represents the amount of pro forma total
tangible assets of WorldGate less pro forma total liabilities divided by the
number of shares of common stock outstanding after giving effect to the
conversion of series A, series B and series C preferred stock and the class B
common stock, the sales of the series C preferred stock in January and February
1999, the issuance of notes payable in March 1999 and the stock split. After
giving effect to the sale by WorldGate of 4,500,000 shares of common stock in
this offering, and after deducting the underwriting discount and estimated
offering expenses payable by WorldGate, the pro forma net tangible book value of
WorldGate as of December 31, 1998 would have been approximately $58,591,000 or
$2.87 per share to new investors purchasing our common stock in this offering.
"Dilution per share" represents the difference between the initial public
offering price per share of our common stock, at an assumed initial public
offering price of $13.00 per share, and the pro forma as adjusted net tangible
book value per share of WorldGate as of December 31, 1998 after giving effect to
this offering. The following table illustrates this per share dilution:
<TABLE>
<S> <C> <C>
Initial public offering price per share...................................... $ 13.00
Pro forma net tangible book value per share as of December 31, 1998........ $ .42
Increase per share attributable to new investors........................... 2.45
---------
Pro forma as adjusted net tangible book value per share after this
offering................................................................... 2.87
---------
Dilution per share to new investors.......................................... $ 10.13
---------
---------
</TABLE>
The following table summarizes, as of December 31, 1998, on the pro forma
basis described above, the difference between the total consideration paid and
the average price per share paid by our existing stockholders and the new
investors purchasing shares of common stock in this offering (before deducting
underwriting discounts and estimated offering expenses):
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION
------------------------- --------------------------- AVERAGE PRICE
NUMBER PERCENTAGE AMOUNT PERCENTAGE PER SHARE
------------ ----------- -------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Existing Stockholders....................... 15,933,282 78.0% $ 48,752,075 45.5% $ 3.06
New Stockholders............................ 4,500,000 22.0% 58,500,000 54.5% $ 13.00
------------ ----- -------------- -----
Total................................... 20,433,282 100.0% $ 107,252,075 100.0%
------------ ----- -------------- -----
------------ ----- -------------- -----
</TABLE>
The foregoing tables exclude all outstanding options and warrants. As of
December 31, 1998, there were outstanding warrants to purchase an aggregate of
311,819 shares of common stock and options to purchase an aggregate of 641,343
shares of common stock (108,750 of which were exercisable at December 31, 1998)
at a weighted average exercise price of $3.00 per share, and WorldGate had an
additional 291,990 shares of common stock available for future grants and other
issuances under its stock option plan. In March 1999, WorldGate issued notes
payable in the face amount of $6 million which are recorded net of original
issue discount of $530,000 and an additional discount of $1,030,000,
representing the value of detachable warrants issued in connection with this
debt. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and notes 7 and 10 of the notes to financial statements
appearing elsewhere in this prospectus. The exercise of outstanding options and
warrants having an exercise price less than the offering price would increase
the dilutive effect to new investors.
14
<PAGE>
SELECTED FINANCIAL INFORMATION
The following selected financial information as of December 31, 1997 and
1998 and for each of the three years in the period ended December 31, 1998 are
derived from our financial statements included in this prospectus, which have
been audited by PricewaterhouseCoopers LLP, independent accountants. You should
read the following information in conjunction with our financial statements and
notes thereto and "Management's Discussion and Analysis of Financial Condition
and Results of Operations" included elsewhere in this prospectus. The data as of
December 31, 1995 and 1996 and for the period ended December 31, 1995 are
derived from financial data not included in this prospectus. The pro forma
balance sheet data gives effect to the sale of the series C preferred stock in
January and February 1999 for aggregate gross proceeds of approximately $7.6
million and the issuance of notes payable in March 1999 in the face amount of $6
million which are recorded net of original issue discount of $530,000 and an
additional discount of $1,030,000, representing the value of detachable warrants
issued in connection with his debt. The pro forma as adjusted balance sheet data
also gives effect to this offering and the application of the estimated net
proceeds of approximately $53.6 million. The pro forma net loss per common share
data gives effect to the conversion of all preferred stock outstanding as of
December 31, 1998 into common stock.
<TABLE>
<CAPTION>
MARCH 21,
1995
(INCEPTION)
THROUGH YEAR ENDED DECEMBER 31,
DECEMBER 31, -----------------------------------------
1995 1996 1997 1998
------------- ------------ ------------ -------------
<S> <C> <C> <C> <C>
(IN THOUSANDS EXCEPT SHARE AND PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
Revenues................................................ $ 141 $ 1,022
Costs and expenses:
Cost of revenues...................................... 1,530 9,919
Engineering and development........................... $ 149 $ 1,408 6,981 9,684
Sales and marketing................................... 428 3,623 5,157
General and administrative............................ 1,093 2,432 3,486
Depreciation and amortization......................... 22 119
------ ------------ ------------ -------------
Total costs and expenses.......................... 149 2,929 14,588 28,365
Loss from operations.................................... (149) (2,929) (14,447) (27,343)
Other income, net....................................... 8 423 423
Interest expense........................................ (2) (17) (101)
------ ------------ ------------ -------------
Net loss................................................ (149) (2,923) (14,041) (27,021)
Accretion on preferred stock............................ (75) (2,436) (6,145)
------ ------------ ------------ -------------
Net loss available to common shareholders............... $ (149) $ (2,998) $ (16,477) $ (33,166)
------ ------------ ------------ -------------
------ ------------ ------------ -------------
Historical net loss per common share.................... $ (0.33) $ (1.81) $ (3.64)
Historical weighted average common shares outstanding... 9,100,801 9,100,801 9,100,801
Pro forma net loss per common share..................... $ (2.24)
-------------
-------------
Pro forma weighted average common shares outstanding.... 14,785,714
-------------
-------------
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
PRO FORMA
DECEMBER 31, PRO FORMA DECEMBER
--------------------------------------------------- DECEMBER 31, 1998, AS
1995 1996 1997 1998 31, 1998 ADJUSTED
--------- ------------ ------------ ------------ ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
(IN THOUSANDS)
BALANCE SHEET DATA:
Cash and cash equivalents and short term
investments............................ $ 32 $ 7,574 $ 17,318 $ 368 $ 13,438 $ 61,043
Total assets............................. 32 7,583 18,412 5,621 18,691 66,296
Total indebtedness....................... 591 1,127 5,567 1,127
Total mandatory redeemable preferred
stock.................................. 8,571 34,366 49,276 -- --
Total stockholders' equity (deficit)..... 32 (1,451) (19,177) (52,240) 6,546 58,591(1)
OTHER DATA:
Common shares outstanding................ -- 9,100,801 9,100,801 9,100,801 15,658,690 20,433,282
</TABLE>
- ------------------------
(1) Adjusted to reflect an estimated extraordinary loss of approximately
$1,560,000 on the early extinguishment of notes payable. This loss will be
recognized upon the repayment of the notes payable with a portion of the net
proceeds from this offering. See "Use of Proceeds" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
16
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
BACKGROUND
We commenced operations on March 21, 1995. Since inception, all of our
activities have involved developing the WORLDGATE Service and conducting tests
and trials of our service with cable operators throughout the world. We are
engaged in joint engineering and sales and marketing activities with General
Instrument and Scientific-Atlanta. These relationships began in 1996 with
product development for some hardware components of our WORLDGATE platform.
We first announced the WORLDGATE Service in May 1996 and first demonstrated
an operational system in December 1996. Tests at corporate locations of major
cable operators began in the third quarter of 1997 and consumer field trials
began in September 1997. We have entered into multi-year agreements with cable
operators that collectively have approximately 2.7 million system subscribers
including:
- Cable Bahamas, Ltd.,
- Charter,
- Click!Network,
- Massillon Cable,
- Prestige Cable, and
- TVCable.
Generally, these agreements provide that these cable operators will offer
the WORLDGATE Service in their major cities of operation. These cable operators
are in various stages of planning for and commercially offering our service.
Only Charter and Click!Network have begun to offer the WORLDGATE Service to
their subscribers. The WORLDGATE Service is also in various stages of testing by
cable operators whose cable systems serve approximately 32 million subscribers.
See "Business--WORLDGATE Trials," and "Risk Factors--We depend on cable box
manufacturers to incorporate our technology into their cable boxes."
We have minimal revenues to date and have incurred operating losses, net
losses and negative operating cash flow each month since our inception. At
December 31, 1998, we had an accumulated deficit of approximately $51.9 million.
We have funded our operations since inception through private placements of
preferred stock, capital contributions from stockholders and a line of credit.
See "--Liquidity and Capital Resources." We currently intend to increase our
operating expenses and capital expenditures in order to continue the development
and enhancement of the WORLDGATE Service and to expand the commercial deployment
of the WORLDGATE Service.
In March 1999, we received gross proceeds of approximately $912,000 and
$4,558,000 through the issuance of $1,000,000 and $5,000,000 of discounted notes
payable with a stated interest rate of 12.48% due in September 1999 and December
1999 respectively. However, these notes become due and payable on the closing of
this offering. In connection with the issuance of these notes payable, the
holders of the notes received warrants to purchase the number of shares of
common stock equal to $5,469,600 divided by the lower of $16.50 and the initial
public offering price at an exercise price equal to the lower of the initial
public offering price and $16.50. Assuming an initial public offering price of
$13.00 per share, these holders may purchase up to 420,738 shares of common
stock. The fair value of the warrants will be accounted for as an additional
discount on the notes. We intend to use approximately $6.0 million of the net
proceeds of this offering to repay the outstanding balance of these notes. We
expect to record an extraordinary loss on the early extinguishment of these
notes payable not to exceed approximately $1,560,000, representing the write-off
of the unamortized discount.
17
<PAGE>
REVENUES
SYSTEM SALES. In the near term we anticipate that a majority of our
revenues will be derived from cable operators who purchase our headend
computers. We derive revenues from the sale to cable operators of cable headend
equipment, including computer systems, data encoders and demodulators and other
equipment manufactured by third parties. The price of the cable headend systems,
including installation and training, is expected to depend on the number of
subscribers supported. We also sell to cable operators wireless keyboards,
designed specifically for the WORLDGATE Service, for consumers who want the
convenience of a keyboard for e-mail and other applications. As of March 16,
1999, we had sold 14,690 keyboards to cable operators. When we provide cable
headend and other equipment to cable operators that are testing the WORLDGATE
Service, we recognize revenue when the products are shipped and accepted by the
customer. Acceptance takes place after commitments are received from the
customer.
SUBSCRIPTION AND OTHER SERVICES. We earn monthly fees from cable operators
based upon the number of WORLDGATE Service subscribers. We offer the WORLDGATE
Service to cable operators for monthly subscriber fees payable to us based upon
a metered standard, which includes a flat monthly fee and additional access
charges for use after a threshold, E.G. two hours, of service time, or an
unlimited standard, which provides for a fixed charge not dependent on usage
time. We cannot accurately predict the level of the subscription fees that we
will actually receive from cable operators that offer the WORLDGATE Service
because contracts with only a limited number of cable operators are currently in
place.
OTHER REVENUES. In the future, as the number of WORLDGATE subscribers
grows, we also expect to generate other revenues that we will share on a basis
which we will negotiate with cable operators. These may include revenues from:
- advertisers who:
- purchase banner or sponsorship advertisements,
- pay a fee based on the number of clicks on the advertisements or
- pay a fee based on viewers' use of our CHANNEL HYPERLINKING feature, and
- merchants who share a portion of their revenues derived from customers
who:
- use our CHANNEL HYPERLINKING feature or
- click through from the WORLDGATE Service.
COST OF REVENUES
Cost of revenues includes the cost of
- system hardware, wireless keyboards and the other components of the
WORLDGATE Service which are manufactured by third parties,
- assembly, installation and testing of the WorldGate components,
- training of cable operator personnel and
- documentation, customer support and other production costs. We expect that
cost of revenues will also include the costs of operating our CHANNEL
HYPERLINKING technology.
In 1997 and in 1998, we incurred product costs for systems being installed
as trial systems. We expect to continue to incur costs for trial systems
throughout the remainder of 1999. We recognize revenue from the sale of headend
and other equipment used in trial systems when the products are
18
<PAGE>
shipped and accepted by the customer. The materials portion of cost of equipment
is held in inventory until revenue is realized from the sale thereof.
We currently bear the manufacturing responsibility for, and the cost of,
feature expansion modules installed within some of General Instrument's and
Scientific-Atlanta's current advanced analog cable boxes. Once installed, these
modules enable the WORLDGATE Service on such cable boxes. The incremental cost
per cable box of this module is currently approximately $60, but we expect this
cost to decrease with further cost reduction activities and volume production.
We expect to bear the manufacturing responsibility for and the cost of
incorporating our WORLDGATE technology into these cable boxes. Once the
incremental cost to cable box manufacturers for incorporating our WORLDGATE
technology into their cable boxes becomes nominal, however, we believe that
General Instrument and Scientific-Atlanta may assume the manufacturing
responsibility and cost. See "Risk Factors--We cannot offer the WORLDGATE
Service if cable box manufacturers do not incorporate our technology in their
cable boxes."
The WORLDGATE Service can also operate on current models of General
Instrument's and Scientific-Atlanta's digital cable boxes and some models of
Scientific-Atlanta's advanced analog cable boxes that can be activated through a
centrally-administered software download; therefore, we do not expect to incur
any manufacturing cost for these boxes.
ENGINEERING AND DEVELOPMENT EXPENSES
Engineering and development expenses consist of personnel costs, including
salaries, benefits and bonuses, travel and other personnel-related expenses of
employees and consultants engaged in ongoing development projects, and,
additionally, prototype expenses related to the design, development, testing and
enhancement of the WORLDGATE Service. We believe that continued investment in
engineering and development is critical to attaining our strategic product
initiatives and cost reduction objectives. As a result, we expect that these
expenses will increase significantly in the future.
SALES AND MARKETING EXPENSES
Our sales and marketing expenses consist principally of the costs of
marketing the WORLDGATE Service, including our CHANNEL HYPERLINKING technology,
to cable operators, television programmers and advertisers. These include
employee salaries, bonuses and benefits, travel expenses, trade show fees,
consulting fees and costs to promote the WORLDGATE Service to them. These
expenses may also include the costs of materials for direct mailings, brochures,
targeted advertising and promotional campaigns. We expect that the actual costs
of delivering these marketing materials and advertisements to consumers will be
paid by the cable operators. We expect that sales and marketing expenses will
continue to increase as commercial deployment of the WORLDGATE Service expands.
GENERAL AND ADMINISTRATIVE EXPENSES
Our general and administrative expenses consist primarily of personnel costs
including salaries, benefits, bonuses and related costs for management, finance
and accounting, legal and other professional services. We expect general and
administrative expenses to increase as we add personnel and incur additional
costs related to the growth of our business and operations and to reflect the
costs of operating as a public company.
RESULTS OF OPERATIONS
Since inception, we have engaged principally in the development of the
WORLDGATE Service. Accordingly, our historical results of operations are not
indicative of and should not be relied upon as an indicator of our future
performance.
19
<PAGE>
1998 VERSUS 1997
Our revenues increased to $1.0 million in 1998, as compared to $141,000 in
1997. The increase in our revenues reflects an increase in the number of system
sales and wireless keyboard sales in connection with the initial commercial
deployment of the WORLDGATE Service. The WORLDGATE Service was first made
available to cable subscribers in 1998. As of December 31, 1998, there were
approximately 1,200 WORLDGATE Service subscribers as compared to none as of
December 31, 1997.
Our cost of revenues for 1998 were $9.9 million as compared to $1.5 million
1997. This increase of $8.4 million is due to the increased number of trials and
deployment systems installed in 1998. These costs reflect direct costs and the
additional hardware, software and installation costs incurred for customer
trials and field system deployments.
Our engineering and development expenses increased to $9.7 million in 1998,
as compared to $7.0 million in 1997. Due to the initial commercial deployment of
the WORLDGATE Service, the increase in the number of trials and the on-going
product development, testing and enhancement of the WORLDGATE Service, we
increased the number of engineering and development personnel in 1998. In 1998,
personnel costs increased by $900,000, and engineering equipment, licenses,
certifications and support costs increased by $1.8 million. Engineering
equipment costs in 1998 include $2.0 million of development expenditures paid to
two non-controlling stockholders under existing contracts.
Our sales and marketing expenses increased to $5.2 million in 1998, as
compared to $3.6 million in 1997. These expenses represent the cost of
introducing the WORLDGATE Service to the cable television industry, and for the
marketing expenditures incurred as a result of the expansion of our initial
commercial deployment and the increased number of initial trials with cable
operators. These expenses include expenditures for advertising, trade shows,
promotional materials, consultants and general sales and marketing overhead.
Personnel costs increased by $600,000, and marketing expenditures increased by
$1.0 million in 1998.
Our general and administrative expenses increased to $3.5 million in 1998,
as compared to $2.4 million in 1997. The increase is attributable primarily to
additional personnel and related overhead costs to support our growth, including
the initial commercial deployment and the increased number of trials. In 1998,
personnel costs increased by $450,000 and other related overhead expenditures
increased by $650,000.
We have not provided for or paid any federal or state income taxes. As of
December 31, 1998, we had net operating loss carryforwards of approximately
$38.3 million available to offset future income subject to income taxes. The
Company believes that its ability to utilize its net operating loss
carryforwards will be subject to annual limitations as a result of this public
offering.
1997 VERSUS 1996
Our revenues for 1997 were $141,000 which consisted entirely of the sale of
headend systems shipped during the year. We had no revenues in 1996.
Our cost of revenues for 1997 was $1.5 million. There were no product costs
for 1996. These costs reflect direct costs as well as the additional hardware,
software and installation costs incurred for customer trials and field system
deployments.
Our engineering and development expenses increased to $7.0 million in 1997,
as compared to $1.4 million in 1996. The increase in these costs is primarily
due to the hiring of additional engineering and development personnel in
connection with our ongoing development and enhancement of the WORLDGATE
Service. Our 1997 personnel costs increased by $3.9 million, and engineering
equipment and support expenditures increased by $1.7 million.
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Our sales and marketing expenses increased to $3.6 million in 1997, as
compared to $428,000 in 1996. The primary items contributing to the increase in
sales and marketing expense were the hiring of additional personnel and
promotional expenditures and trade show expenses related to the introduction of
the WORLDGATE Service to the cable television industry. In 1997, personnel costs
increased by $1.3 million and other expenses, including promotional and trade
show costs, increased by $1.9 million.
Our general and administrative expenses increased to $2.4 million in 1997,
as compared to $1.1 million in 1996, primarily as a result of the hiring of
additional personnel and increased facilities costs, legal expenses and other
consulting costs necessary to support our engineering and development and sales
and marketing efforts. In 1997, personnel costs increased by $930,000, and
facility, legal, consulting and other support costs increased by $420,000.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, we have derived substantially all of our operating capital
from private placements of preferred stock, a $1.1 million capital contribution
from our chief executive officer, a $2.0 million line of credit and the issuance
of our $6.0 million face-amount of our discounted notes in March 1999. At
December 31, 1998, the amount of our accumulated deficit was $51.9 million and
cash and cash equivalents were $368,000. At December 31, 1997 and 1996, we had
an accumulated deficit of $19.2 million and $3.1 million respectively, and cash
and cash equivalents of $17.3 million and $7.6 million, respectively.
Our operating activities utilized cash in the amount of approximately $25.7
million, $12.6 million and $1.7 million for the years ended December 31, 1998,
1997 and 1996, respectively. The net cash used for operations during these
periods was primarily for funding engineering and development. Under existing
engineering development contracts with two non-controlling stockholders, it is
anticipated that these expenditures will be approximately $2.8 million in 1999.
Capital expenditures for the acquisition of office equipment, computer systems
and equipment for engineering and manufacturing operations were $533,000,
$249,000 and $0, for the years ended December 31, 1998, 1997 and 1996,
respectively.
Net cash provided by financing activities was approximately $9.3 million,
$22.6 million and $9.2 million for the years ended December 31, 1998, 1997 and
1996, respectively, which related primarily to the issuance of preferred stock
of $9.3 million, $23.4 million and $8.5 million in 1998, 1997 and 1996,
respectively. Additionally, we established a $1.0 million line of credit in
1997, which was increased to $2.0 million in June 1998. As of December 31, 1998,
approximately $1.6 million of this line had been utilized, $500,000 had been
repaid and an additional $400,000 was available for borrowing. At December 31,
1998, the weighted average interest rate of the borrowings was 8.89% per annum.
These borrowings mature on various dates through 2001.
In January and February 1999, we raised approximately $7.6 million from the
sale of 697,437 additional shares of series C preferred stock.
We plan to continue to invest in sales and marketing and engineering and
development for the WORLDGATE Service as well as to support our infrastructure.
Additionally, we expect to use a portion of our cash for capital expenditures
and other general corporate purposes. In March 1999, we raised approximately
$5.5 million from the sale of $6.0 million face-amount of our discounted notes.
In connection with this sale, we also issued warrants to purchase the number of
shares of common stock equal to $5,469,600 divided by the lower of $16.50 and
the initial public offering price at an exercise price equal to the lower of
$16.50 and the initial public offering price per share. Assuming an initial
public offering price of $13.00 per share, these holders may purchase up to
420,738 shares of common stock. We believe the net proceeds from this offering,
together with our existing capital resources, including the remaining proceeds
from the series C preferred stock financing and the sale of discounted
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notes payable, and anticipated funds from operations, will satisfy our projected
product development, working capital and capital expenditure requirements for at
least the next 18 months.
LIMITED NUMBER OF CUSTOMERS
We have in the past derived, and will in the future derive, a significant
portion of our revenues from a limited number of customers. In 1997, three cable
operators accounted for approximately 100% of our revenues and in 1998, ten
cable operators accounted for approximately 98% of our revenues. Moreover, in
1998, Charter and Click!Network accounted for 44% and 10%, respectively, of our
revenues. We cannot assure you that any of these customers will continue to
offer the WORLDGATE Service to their cable subscribers or that they will
continue to be a significant source of revenues, if at all, for us. The loss of
any of these cable operators as customers would have a material adverse effect
on us and our financial results.
YEAR 2000 RISK MAY ADVERSELY AFFECT US
Many existing computer programs use only two digits to identify a year.
These programs were designed and developed without addressing the impact of the
upcoming change in the century. If not corrected, many computer software
applications could fail or create erroneous results by, at or beyond the year
2000. We utilize software, computer technology and other services internally
developed and provided by third-party vendors that may fail due to the year 2000
phenomenon. We are also dependent on cable operators to maintain network
reliability.
We are currently assessing the year 2000 readiness of our third-party
supplied software, computer technology and other services. Based upon the
results of this assessment, we will develop and implement, if necessary, a
remediation plan with respect to any third-party software, computer technology
and services which may fail to be year 2000 compliant. We have assessed our
proprietary software and internal systems and believe them to be year 2000
compliant. We anticipate that our systems, including components thereof provided
by third-party vendors, will be year 2000 compliant by the end of 1999. At this
time, the expenses associated with this assessment and potential remediation
plan cannot be determined. The failure of our software and computing systems and
our third-party vendors to be year 2000 compliant could have a material adverse
effect on us.
RECENT ACCOUNTING PRONOUNCEMENTS
Effective January 1, 1998, we have adopted the provisions of Statement of
Financial Accounting Standards No. 130 ("SFAS No. 130"), "Reporting
Comprehensive Income." SFAS No. 130 establishes standards for the reporting and
display of comprehensive income, requiring its components to be reported in a
financial statement that is displayed with the same prominence as other
financial statements. The adoption of SFAS No. 130 had no impact on our results
of operations, financial condition or cash flows.
In March 1998, the American Institute of Certified Public Accountants
(AICPA) issued Statement of Position No. 98-1, "Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use" ("SOP 98-1"). SOP 98-1
provides, among other things, guidance for determining whether computer software
is for internal use and when the cost related to such software should be
expensed as incurred or capitalized and amortized. SOP 98-1 is required to be
applied prospectively. We adopted SOP 98-1 on January 1, 1999 and do not expect
the adoption of SOP 98-1 to have a material effect on our results of operations
and financial condition.
In April 1998, the AICPA issued SOP 98-5, "Reporting on the Costs of
Start-Up Activities." SOP 98-5 generally requires costs of start-up activities
to be expensed instead of being capitalized and amortized. We adopted SOP 98-5
on January 1, 1999 and do not expect the adoption of SOP 98-5 to have a material
effect on its results of operations and financial condition.
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BUSINESS
OVERVIEW
WorldGate provides a new television-based Internet service, the WORLDGATE
Service, that delivers the Internet through cable television systems. The
WORLDGATE Service provides:
- high speed, easy to use Internet access without the use of a personal
computer or additional set-top appliance,
- low cost for the subscriber, currently being offered by cable operators to
existing subscribers at rates typically ranging from $4-$12 per month for
unlimited service,
- full featured Internet functionality and content that can be accessed
within seconds,
- thin-client network architecture that allows for easy deployment and
setup, central system management and centrally administered upgrades, and
- a television-based portal for enabling viewers to dynamically link from
television programming and advertising to related Web sites.
We believe this combination of television and the Internet will help transform
advertising, e-commerce and information delivery for the consumer mass market.
We were incorporated in Delaware in 1996 to succeed to the business of our
predecessor, WorldGate Communications, L.L.C. which commenced operations in
March 1995. Our World Wide Web site is www.wgate.com. The information in our Web
site is not incorporated into this prospectus.
WORLDGATE MARKET OPPORTUNITY
The Internet is growing rapidly and is emerging as a significant interactive
medium used by millions of people for entertainment, communications, research,
education and e-commerce. IDC estimates that the number of Internet users
worldwide exceeded 97 million in 1998 and will grow to over 319 million by the
end of 2002. A 1998 report by Jupiter Communications predicted that online
shopping in the United States alone will grow from approximately $5 billion in
1998 to over $29 billion by 2002.
Although Internet access has historically required a personal computer, IDC
surveys indicate that U.S. consumers, by a two-to-one margin, would prefer to
receive emerging electronic information and entertainment services through their
television sets, rather than their personal computers. When surveyed by IDC
about their reasons for not purchasing a personal computer, many respondents
indicated that they do not have a need for a personal computer, that they cannot
afford a personal computer and that personal computers are too difficult or
complicated to use. According to an IDC survey of consumers, personal computer
users spend 30% of their usage time on maintenance and other problem fixing
activities.
WorldGate believes that a television-based approach to Internet services is
a superior alternative for many consumers. In 1998, according to IDC, only 45%
of U.S. households owned a personal computer, whereas, according to Cablevision
Blue Book, 98% had televisions. WorldGate believes that a television-based
approach offers the following advantages:
- televisions are widely accepted and used by consumers,
- televisions are well suited for sharing information and entertainment,
- the advertiser-sponsored television entertainment model is well accepted,
and
- television programming provides a unique portal opportunity.
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IDC forecasts that the cumulative shipments in the United States of Internet
television access devices, including dedicated Internet access set-top boxes and
cable television set-top boxes, will grow from 1 million at the end of 1998 to
almost 24 million by the end of 2002, representing 22% of U.S. homes in 2002.
The IDC report indicates that based upon the expense, complexity and
obsolescence issues associated with a personal computer, there is an opportunity
for television-based devices to supplement and potentially replace personal
computers as the preferred devices for accessing the Internet.
Set-top appliances, such as those provided by WebTV, have been introduced to
provide Internet access through telephone lines to a television without
requiring a personal computer. Although these access solutions do not require a
personal computer or personal computer expertise, WorldGate believes that this
mode of Internet access may be limited by:
- the need to purchase a dedicated or "single-purpose" set-top appliance
which typically costs approximately $100-$240 and exposes the consumer to
risks of equipment obsolescence,
- monthly subscription fees that may be up to $25 per month in addition to
any telephone access charges,
- the telephone bandwidth and usage constraints of using dial-up modems with
peak data transmission speeds of 56 Kbps that may result in significant
dial-up connection times, busy signals and delays, and
- functional limitations such as the inability to support CD-quality audio
and Java-based applications, including instant messaging and chat rooms.
As a result of the shortcomings of telephone-based access, there is an
opportunity to provide Internet television access through a set-top box
connected to a cable television service. WorldGate believes that the cable
infrastructure provides a superior medium for Internet access that eliminates
the major obstacles of telephone access. WorldGate believes that the benefits of
cable-based Internet access include:
- lower cost than telephone-based methods,
- high transmission speed, with a maximum data transmission speed downstream
from the cable operator's central facility to the subscriber of 27 Mbps,
which is almost 500 times faster than a standard 56.6 Kbps dial up modem,
and
- "always-on" availability providing access within seconds.
A 1998 Kagan report predicted that there would be approximately 220 million
worldwide cable subscribers in 1998 and approximately 261 million worldwide
cable subscribers by the year 2001. In the United States, cable is widely
available, with approximately 96% of homes passed by cable infrastructure in
1998 and approximately 69% of these homes being cable subscribers, according to
Cablevision Blue Book. IDC forecasts that, of all the Internet television access
devices considered by it, cable television set-top boxes are expected to achieve
the highest growth rate through at least 2002.
WorldGate believes that to successfully take advantage of the demand for
cable television-based Internet services in the mass consumer market, the
service should:
- be a relatively low-cost solution for cable operators that can be offered
to consumers over existing cable systems regardless of whether they have
been upgraded to allow bi-directional communications between the cable
operator's central facility and the subscriber's cable box, and whether
they are deploying current or future generation digital and advanced
analog cable boxes, with minimal or no use of dedicated video channel
capacity,
- provide low-cost, easy to use, high speed Internet access to consumers,
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- require no additional investment in equipment or hardware by the consumer,
and
- be flexible enough to efficiently accommodate ongoing advances in Internet
capabilities, such as CD-quality audio and Java-based applications,
including instant messaging and chat rooms.
WorldGate believes that current Internet access offerings have not addressed
the mass market opportunity due to a failure to satisfy one or more of these
criteria.
WORLDGATE SOLUTION
WorldGate believes that the WORLDGATE Service addresses this mass consumer
market opportunity because it is a low cost, high speed, easy to use Internet
service. This service is currently being offered by cable operators to existing
subscribers. The WORLDGATE Service utilizes a thin-client network architecture
to allow for easy deployment and setup, central system management and centrally
administered upgrades. In the subscriber home, the WORLDGATE Service employs
only a television, a remote control or WorldGate wireless keyboard, and a
WORLDGATE capable digital or advanced analog cable box - both of which are
currently being deployed by cable operators for business reasons largely
unrelated to Internet access. The WORLDGATE Service enables users, among other
activities, to browse the Web, send and receive e-mail, participate in chat
sessions and shop online. With features such as WorldGate's CHANNEL HYPERLINKING
technology, the WORLDGATE Service can integrate the interactivity of the
Internet with the television viewing experience. By enabling low cost Internet
access, integrated Internet/television advertising and e-commerce, WorldGate
believes it is pioneering a new mass market.
WORLDGATE BUSINESS MODEL
WorldGate expects to derive revenues from cable operators, e-commerce
merchants and advertisers. WorldGate expects to enhance these revenue
opportunities by implementing the strategies described below.
REVENUE DERIVED FROM CABLE OPERATORS. WorldGate sells its headend server
equipment and wireless keyboards to cable operators and licenses the software
for the WORLDGATE Service to cable operators for a monthly subscriber fee based
upon either a metered standard, which includes a flat monthly rate plus
additional access charges for use after a threshold (e.g. two hours) of service
time, or an unlimited standard, which provides service for a fixed charge not
dependent on usage time. WorldGate believes that cable operators will either
offer the WORLDGATE Service to their subscribers as a premium service, requiring
subscribers to pay a separate monthly fee for the service, or as a part of a
package of services in which the subscriber pays a monthly fee for the entire
package. In either case, WorldGate expects to receive monthly fees from the
cable operators based on the total number of subscribers to the WORLDGATE
Service.
REVENUE DERIVED FROM E-COMMERCE MERCHANTS. WorldGate is in the process of
negotiating with companies in the business of selling products and services
online. WorldGate believes that these companies may pay for the opportunity to
promote their businesses through portals by sharing a portion of the revenues
they are paid or by paying a fixed fee per transaction. We intend to make access
to online shopping opportunities both simple and convenient for our subscribers
so that we can participate in the rapid growth forecasted for e-commerce. We
expect to share the revenues derived from e-commerce merchants with cable
operators.
REVENUE DERIVED FROM ADVERTISERS. A 1998 report by Jupiter Communications
predicted that Web advertising in the United States alone will increase from
approximately $1.9 billion in 1998 to approximately $7.7 billion in 2002.
WorldGate has space on its various menu pages that is available for banner
advertising and other promotions. When subscribers click on these banners, they
can be linked quickly to another Web page that gives more detailed information
about the subject of the banner ad. Advertisers typically pay portals based on
the number of times that their ad is displayed on a page
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viewed by a subscriber, so as the number of WorldGate subscribers grows, we
expect our opportunities to derive advertising revenues will also grow. We
intend to rely at least in part on third party firms such as DoubleClick Inc.
that are in the business of providing advertisements to portals. In some cases,
we may ourselves directly contract with advertisers to display their ads, either
on a per view basis or based on a fixed fee to cover the right to display their
ad for a period of time. Information derived from the cable system will permit
us to know the general geographic area in which each of our subscribers lives,
and in many cases we will know zip codes and perhaps more extensive demographic
information regarding our subscribers if they wish to share that information
with us. Having location and other data regarding our subscribers is expected to
be valuable because advertisers typically are willing to pay higher advertising
fees if they can target their ads based on such information. We expect to share
the revenues derived from Web advertising with cable operators.
Our CHANNEL HYPERLINKING technology will provide one button linking from
television and advertising content to a related fully interactive Web site. This
sort of advertising is "self-targeted" because subscribers themselves decide
whether they want to get more information. This is in sharp contrast to
traditional television advertising that typically includes sending messages to
large numbers of viewers on an unsolicited basis. In addition to the value
achieved by self-targeting, the value of our CHANNEL HYPERLINKING technology is
enhanced by both the availability of demographic information and interactivity.
By delivering an interactive experience, we are able to give the subscribers the
opportunity to follow a variety of paths to gain extensive information about the
subject of interest. Perhaps most importantly, the interactivity also allows the
subscribers in many cases to purchase a product or service online. With the
average cable household being exposed to tens of thousands of television
advertisements annually, we believe there is the potential to have many
opportunities for use of our CHANNEL HYPERLINKING technology.
Our CHANNEL HYPERLINKING technology business model is based on a revenue
split with our cable operator partners. Revenues to WorldGate are expected to
come from advertisers seeking to engage the WORLDGATE Service subscribers in
some form of interactivity while using our CHANNEL HYPERLINKING technology. The
business model assumes that interactions will be on a pay-for-performance basis
such that advertisers and others will pay us based on the number of "clicks"
that occur. Consumers in an early deployment of the WORLDGATE Service have
averaged fifteen clicks per month related to television networks. This result
was achieved without providing any special promotion of our CHANNEL HYPERLINKING
capabilities. Clicks related to television advertisements are expected to begin
in the second half of 1999 when CHANNEL HYPERLINKING technology for
advertisements is deployed although no meaningful revenue is expected to be
derived from this service in 1999.
BUSINESS STRATEGY
WorldGate's objective is to transform advertising, commerce and information
delivery for the consumer mass market through its combination of television with
the Internet. The principal elements of WorldGate's business strategy are the
following:
PROVIDE COMPELLING VALUE FOR END-USERS. While many companies are focused
primarily on increasing the speed of Internet access, WORLDGATE is focused on
significantly expanding the availability of the Internet to a broader set of
consumers and providing these consumers with an enriched Internet experience, in
addition to offering high speed access. WorldGate designed the WORLDGATE Service
to operate on the widely available existing cable television systems, to be an
inexpensive alternative to other forms of Internet television access and to be
easy for the consumers to use. In contrast to other television-based services,
such as those offered by WebTV, which currently requires the purchase of a
dedicated set-top appliance, the WORLDGATE Service does not require consumers to
purchase or install any in-home equipment. To use the WORLDGATE Service, a
consumer needs only her existing television, a WORLDGATE enabled digital or
advanced analog cable box and a wireless remote or keyboard, with all but the
television typically being supplied by her cable operator. In addition,
WorldGate's CHANNEL
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HYPERLINKING technology has been designed to offer consumers easy, fast and
interactive access to content which is associated with a television program or
advertisement they are viewing.
PROVIDE COMPELLING VALUE FOR CABLE OPERATORS. WorldGate believes that cable
operators assess the viability of an investment in a new service by considering
the cost of initial investment in equipment, service reliability, overall
operating and maintenance expenses and the incremental revenue that can be
generated by such service. The WORLDGATE Service can be offered to cable
subscribers through the cable operators' existing one-way or two-way
infrastructure. Furthermore, the WORLDGATE Service has been designed to be
deployed with relatively low capital costs of $45,000 to $75,000 for a system
covering up to 1,400 WorldGate subscribers. These systems are also designed to
be efficiently upgraded as the operator's infrastructure is improved through the
deployment of new generation cable boxes or the deployment of cable modem ready
plant, i.e. a cable plant that has been upgraded to improve the original
transmission quality to permit the use of cable modems, and easily expanded as
the number of subscribers grows. There is, however, no need for any costly
upgrades to cable modem ready plant. Accordingly, the WORLDGATE Service can
provide cable operators with the opportunity for immediate incremental revenue
streams from subscriber fees and sharing of advertising and online transaction
fees. Additionally, the WORLDGATE Service for the advanced analog cable box
typically does not require the use of channel bandwidth. As a result of the
advantages offered by its solution, WorldGate believes that it will be able to
successfully market the WORLDGATE Service to cable operators.
PROVIDE COMPELLING VALUE FOR PROGRAMMERS, ADVERTISERS, ADVERTISING AGENCIES
AND E-COMMERCE MERCHANTS. Through our CHANNEL HYPERLINKING technology,
programmers and advertisers may enhance their television content with related
Internet materials by providing their viewers with the ability to interact in
real-time with their television programming or advertising. For example, a
television viewer watching a commercial could link immediately to that
advertiser's Web site to find more information about the product or to place an
order. By giving viewers this ability, WorldGate believes that the value of the
program or advertisement to the television programmers or advertisers is
increased, and that as a result, programmers and advertisers will be able to
increase their revenues.
WorldGate has established relationships with many providers of content for
the WORLDGATE Service including programmers such as CNN, C-SPAN, The Weather
Channel, Showtime, E! Entertainment Network, Lifetime, Arts & Entertainment,
HGTV and CourtTV. Similarly, WorldGate has established relationships with
Internet and other information content or service providers such as Citicorp,
DoubleClick, Excite and Zip2. The WORLDGATE Service provides them with an
opportunity to broaden their offerings by taking advantage of the dynamic
capabilities of the Internet linked with cable television's broad subscriber
base. The television-based nature of the WORLDGATE Service provides a natural
portal for interaction between the consumer and programming and other content
providers.
WorldGate is also working with advertisers and advertising agencies such as
General Motors, Poppe Tyson, Ogilvy & Mather, Grey Advertising Inc. and True
North Communications Inc. WorldGate is working with these advertisers and
advertising agencies to allow for interactive links by television consumers with
the products and/or services being advertised on the television. WorldGate has
also established a committee (the North American CHANNEL HYPERLINKING
Organization or "NACHO") which includes representatives from many of these
content providers, advertisers and advertising agencies as well as advertising
service providers such as Nielsen Media Research Inc. and MatchLogic, Inc., an
operating unit of Excite. The NACHO advisory board is developing standards and
policies for WorldGate's CHANNEL HYPERLINKING technology as well as assisting in
its promotion. WorldGate believes that its CHANNEL HYPERLINKING technology,
along with the participation of its CHANNEL HYPERLINKING providers and the NACHO
advisory board, will facilitate an enriched interactive experience for users of
the WORLDGATE Service. Initial field tests of the CHANNEL HYPERLINKING
technology in advertisements is currently scheduled for the second half of 1999.
WorldGate also intends to provide additional value added services to
advertisers, programmers and cable operators by collecting consumer activity
data. This activity data will be collected and tabulated to statistically
reflect consumer responses to
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interactive advertisements and programming, television viewing habits and
Internet "surfing" habits. WorldGate intends to ensure a WORLDGATE Service
subscriber's privacy by not providing personally identifiable data unless
authorized by the subscriber.
AGGRESSIVELY PENETRATE GLOBAL MARKETS. WorldGate believes that the market
for the WORLDGATE Service is global and is seeking to deploy its systems with
additional cable operators in the United States, Canada, China, Europe, Latin
America and Southeast Asia. The WORLDGATE Service is currently being tested by
cable operators on four continents. WorldGate is working with third parties to
provide local content directories and user interfaces in multiple languages for
the WORLDGATE Service as the demand arises.
CREATE BRAND EQUITY. WorldGate intends to create an identity for its
INTERNET TV OVER CABLE-SM- service under the "WORLDGATE" brand. In this regard
WORLDGATE is already a registered service mark in the United States and
applications have been filed in many other countries. WorldGate believes that
the creation of a brand identity among cable subscribers is important to its
strategy to become the preferred provider of cable Internet television services
to the cable television industry, advertisers, programmers and e-commerce
companies. By creating consumer awareness of the WORLDGATE Service, WorldGate
believes it will drive penetration in its geographic markets worldwide and
increase the pace at which cable operators, advertisers, programmers and
e-commerce companies recognize the economic and service benefits of the
WORLDGATE Service.
MAINTAIN AND LEVERAGE TECHNOLOGY POSITION. WorldGate believes that it has
established a competitive advantage through its technology position. Development
of the WORLDGATE Service has required in excess of three years of intensive
engineering and development efforts and the combination of significant expertise
in two historically separate industries, cable and the Internet. WorldGate's
engineering personnel, who came from established industry participants such as
General Instrument and Hitachi, Ltd., have been able to solve challenges
involved in delivering real-time Internet access over existing cable
infrastructure. WORLDGATE believes that it is currently the only company to have
developed, and commercially deployed, the capability to offer bi-directional
transmissions and real-time communications between the cable box and the cable
operator's central facility without requiring the use of cable channel capacity.
WorldGate intends to maintain its technology leadership by continuing to enhance
the performance and functionality of the WORLDGATE Service, and by aggressively
seeking to protect its intellectual property.
LEVERAGE EXISTING RELATIONSHIPS WITH GENERAL INSTRUMENT AND
SCIENTIFIC-ATLANTA. WorldGate has strategic relationships with General
Instrument and Scientific-Atlanta, the world's two largest suppliers of cable
boxes. Both companies have participated in the joint development, including
testing and implementation, of WorldGate's technology. WorldGate's technology
has been incorporated into versions of their advanced analog cable boxes and is
being tested on their digital cable boxes. In addition, both General Instrument
and Scientific-Atlanta are stockholders of WorldGate and have joined WorldGate
in promoting the WORLDGATE Service in the press, at trade shows and conferences
and through joint sales and marketing presentations worldwide.
As of March 15, 1999:
- General Instrument had invested an aggregate of approximately $5.5 million
and owned 454,716 shares of common stock of WorldGate or approximately
2.9% of the total outstanding shares, and
- Scientific-Atlanta had invested an aggregate of approximately $3.5 million
and owned 333,505 shares of common stock of WorldGate or approximately
2.1% of the outstanding shares.
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THE WORLDGATE SERVICE
OVERVIEW OF THE WORLDGATE SERVICE. WorldGate is the developer of the
WORLDGATE Service, an Internet television service that enables:
- cable operators to offer subscribers low cost, easy to use, high speed
Internet access, and
- television programmers and advertisers to link their programs and
advertisements with a fully interactive Web site.
Upon accessing the WORLDGATE Service, the user is provided with a main menu
screen offering several options, including Web browsing and e-mail. The main
menu screen also provides options for viewing informative content such as an
electronic television program guide, news, weather, sports and community
activities. Depending on the option selected, the consumer is connected to the
desired content or a secondary menu screen providing additional options.
WORLDGATE has designed both its navigational menu screens and e-mail service to
be simple and user-friendly.
The WORLDGATE Service uses a standard cable television box that has been
WORLDGATE enabled and does not require a personal computer or additional set-top
appliance. Furthermore, the WORLDGATE Service can co-exist with alternative
methods of Internet access, which may share the same cable operator network and
application infrastructure it employs.
The advanced e-mail service option provides additional features, such as
e-mail address list management, folders for archiving received and sent e-mail,
support for attachments of which ones that can be displayed are identified and
presented in such a fashion that the user can view them, support for forwarding
and carbon copying additional mail recipients, and allowing a subscriber to
establish and manage multiple mail box addresses for each member of the
subscriber's household. The "My Town" icon on WorldGate's main menu screen
provides local directories and community guides. This feature offers users a
directory of local school activities, restaurants, government resources and
related community information. Zip2 currently provides this information on
behalf of WorldGate. Also, from the WORLDGATE home page subscribers receive the
current local weather that is updated every hour. The Weather Channel currently
provides this weather information. With a few key strokes the subscriber can
receive a five day forecast, or check the weather for any other location in the
United States.
From the Web section, subscribers can access our "Web Directories" that
provide subscribers with national references to advertisers and links that are
organized by category such as travel, sports, finance and shopping. WorldGate
can update this information to reflect the changing dynamics of the Web.
"Networks on the Web" allows subscribers to view our CHANNEL HYPERLINKING
technology partners and any currently available information that is provided by
television programmers. "Bookmarks" allows subscribers to save their favorite
sites for easier access. Subscribers can also review and edit their list of
favorite sites.
Subscribers can easily go to any site or search the Web by simply entering a
phrase or Web address into the WORLDGATE Service. The WORLDGATE technology
determines if the user has entered a valid Web address or a search phrase and
then links to the appropriate Web site. The search engine is provided by Excite.
The WORLDGATE Service allows subscribers to administer their household
accounts online. The household administrator can add new accounts, change the
parental control (content filtering), change passwords and change the first and
last names of the individual users on the service. Up to six users are allowed
for each household. The WORLDGATE Service provides the ability to filter the
sites being viewed by the subscriber on a subscriber and household basis.
WorldGate currently uses Spyglass, Inc.'s SurfWatch filtering technology to
offer subscribers the ability to restrict viewing of Web content in categories
ranging from sexually explicit, violent and gambling to drugs and alcohol. In
addition we
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offer a filtering system that uses a special list in order to ensure more
restrictive content filtering suitable for children using the service.
Cable operators offer the WORLDGATE Service to their subscribers at rates
typically ranging from $4-$12 per month or at a promotional rate for a nominal
or no fee during an introductory period for unlimited service. In all current
installations, this rate includes the use of an optional wireless keyboard.
WorldGate does not preclude the cable operators from charging an extra fee for
the use of the keyboard. WorldGate receives a portion of the monthly fee based
on negotiations with the cable operators.
CHANNEL HYPERLINKING TECHNOLOGY. WorldGate's innovative CHANNEL
HYPERLINKING technology is designed to allow a user to dynamically link directly
from a television program or advertisement being viewed to related Internet
sites with the push of a button on a standard remote control or optional
wireless keyboard. The WORLDGATE subscriber does not have to enter or even know
the associated Internet address. For example, while watching The Weather
Channel, a subscriber can directly access a Web page providing local weather
forecasts. Advertising, promotion, transaction and information services are
examples of the types of related programming links that may be enabled through
the CHANNEL HYPERLINKING technology. Our CHANNEL HYPERLINKING technology is
designed to enable applications such as simulcast information on the sports
program being viewed.
There have been several instances where programmers have referred television
viewers to related Internet sites. For example, Showtime, ESPN and NBC, among
others, have encouraged viewers to use their personal computers to access Web
sites related to the content of their sporting event programs, including the
Olympics. WorldGate believes that easier and quicker access to the Internet
through the capabilities provided by CHANNEL HYPERLINKING technology will
promote a new category of cross-programming opportunities.
WorldGate's CHANNEL HYPERLINKING technology can also be used to enhance the
functionality of information sources such as electronic program guides. Although
program guides currently offer limited television program and advertising
information, such information and their utility can be significantly improved
through the use of Web-based content and the ability to perform transactions
online. Because such guides are considered by many to be essential when hundreds
of channels are available, such as is the case with digital platforms, and
because the guides will likely be accessed many times each day, WorldGate
believes that CHANNEL HYPERLINKING enhancements to program guides may represent
a significant source of revenue.
To realize the economic benefits of CHANNEL HYPERLINKING, WorldGate,
programmers, advertisers and advertising agencies have begun to coordinate
implementation of the WORLDGATE Service. In addition, cable operators will need
to achieve significant penetration rates of the WORLDGATE Service to provide an
attractive target audience for programmers and advertisers to focus on
developing the CHANNEL HYPERLINKING service. WorldGate believes that CHANNEL
HYPERLINKING may enhance the value of television programming and advertising,
increase related on-line transactions and potentially lead to related revenue
generating opportunities associated with advertising and on-line transactions
revenue generating opportunities.
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WORLDGATE COMMERCIAL LAUNCHES
WorldGate has entered into multi-year agreements with six operators of cable
television systems: Cable Bahamas, Charter, Click!Network, Massillon Cable,
Prestige Cable and TVCable, which collectively with their affiliates have
approximately 2.7 million subscribers. Charter, which has been managing and has
publicly announced that it will be combined with Marcus Cable Company L.P.
during 1999 as the result of the purchase of both companies by Paul Allen's
Vulcan Ventures, together with Marcus Cable constitutes the seventh largest U.S.
cable operator, with over 2.4 million subscribers in the United States. Charter
has advised WorldGate that it will offer the WORLDGATE Service to Marcus Cable's
subscribers following this combination. Set forth below is a table summarizing
the current status of these commercial launches. The total number of subscribers
served by the cable operator and its affiliates across all of their systems are
based on estimates by Cablevision Blue Book (Fall 1998/Winter 1999), except for
TVCable, which is based on a WorldGate estimate. As of March 29, 1999, 2,645
homes subscribed to the WORLDGATE Service and service fees are paid or payable
to WorldGate for these subscribers in accordance with the terms of WorldGate's
agreements with the cable operators.
<TABLE>
<CAPTION>
COMMERCIALLY TERMINATION
TOTAL SYSTEM LAUNCHED DATE OF
CABLE OPERATOR SUBSCRIBERS LOCATIONS PLANNED LAUNCH LOCATIONS AGREEMENT
- ------------------ ------------- ------------------ ------------------------------------- ------------------
<S> <C> <C> <C> <C>
Cable Bahamas 46,000 Bahamas September 2003
Charter 2,414,800 St. Louis, MO; Lanett, AL; Alhambra, CA; Burbank, November 2002
Newtown, CT; CA; Glendale, CA; Long Beach, CA;
Maryville, IL; Riverside, CA; San Luis Obispo, CA;
Logan, UT LaGrange, GA; Newnan, GA; Hickory,
NC; Ft. Worth, TX
Click!Network 3,000 Tacoma, WA November 2005
Massillon Cable 43,800 Massillon, OH November 2003
Prestige Cable 152,500 Cartersville, GA; Westminster, MD; November 2005
Mooresville, NC; Fredericksburg, VA
TVCable 100,000 Quito, Ecuador September 2005
</TABLE>
Cable Bahamas is currently operational; however, they are awaiting licensure
from the government of Bahamas to provide the WORLDGATE Service and there can be
no assurance that the license will be obtained. In the event that Cable Bahamas
is unable to obtain the necessary license, it may no longer be able to offer the
WORLDGATE Service.
WORLDGATE TRIALS
The WORLDGATE Service is in various stages of trials on four continents with
a number of cable operators including Comcast, Time Warner and MediaOne, which
are three of the four largest U.S. cable operators. Trials typically start with
cable boxes connected to a headend server system installed at a cable operator's
corporate office location for technical evaluation. Trials are of varying
duration and complexity.
The total subscriber base of cable operators currently in trials with
WorldGate is approximately 32 million. There can be no assurance that the
current or planned trials will be successful or will lead to commercial
deployment of the WORLDGATE Service by these cable operators. Set forth below is
a table summarizing the current trials and planned trials of the WORLDGATE
Service as of March 15, 1999.
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The total number of subscribers served by the cable operator across all of
its systems is based on estimates by Cablevision Blue Book (Fall 1998/Winter
1999) for U.S. operators other than SNET and on WorldGate's estimates for SNET
and international operators.
<TABLE>
<CAPTION>
NUMBER OF
TOTAL SYSTEM TRIAL WORLDGATE SYSTEM
CABLE OPERATOR SUBSCRIBERS LOCATION BOXES TYPE
- --------------------------------------------------------- ------------- ---------------- ----------- ---------
<S> <C> <C> <C> <C>
UNITED STATES TRIALS:
Ameritech Corporation.................................. 200,000 Chicago, IL(1) Planned Analog
Cable TV of the Kennebunks............................. 8,500 Kennebunk, ME Planned Digital
Comcast (including Jones Intercable)................... 5,387,659 Lower 63 Analog
Merion, PA
Philadelphia,
PA
Torresdale, 4 Digital
PA(1)
MediaOne............................................... 5,107,800 Boulder, CO(1) 4 Analog
SNET Personal Vision, Inc.............................. 22,000 Hartford, CT 37 Analog
Time Warner (includes Time Warner Cable and Time Warner 11,077,500 Orlando, FL 50 Analog
Entertainment-Advance/ Newhouse).....................
INTERNATIONAL TRIALS:
Cablevision/TCI........................................ 825,000 Buenos Aires, Planned Analog
Argentina
Cablevision S.A. de C.V................................ 300,000 Mexico City, Planned Analog
Mexico
Image TV............................................... 24,000 Brazil Planned Analog
Shaw................................................... 1,500,000 Calgary, 1 Digital
Canada(1)
Singapore CableVision.................................. 800,000 Singapore(1) 5 Analog
Skycable............................................... 225,000 Philippines 25 Analog
SuperCable............................................. 52,000 Caracas, 12 Analog
Venezuela(1)
Telefonica Multimedia S.A.C............................ 210,000 Lima, Peru Planned Analog
United International Holdings.......................... 5,253,070 Vienna, 10 Analog
Austria(1),
Santiago, 66 Analog
Chile(1)
Riyadh, Saudi Planned Digital
Arabia(2)
Wellington, Planned Digital
New Zealand
</TABLE>
- ------------------------
(1) Corporate office trial.
(2) May be limited to Saudi Arabia domestic content.
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TECHNOLOGY
The WORLDGATE platform is based on a "thin client architecture," which
allows substantially all
client-related processing to be performed at the cable headend. The WORLDGATE
platform is comprised of three components:
- servers located at the cable headend,
- a WORLDGATE enabled digital or advanced analog cable box, and
- a remote control and/or optional wireless infrared keyboard.
CABLE HEADEND; CHANNEL HYPERLINKING. There are two servers located at the cable
headend. One server manages all information traveling to and from this server to
the Internet. This server also manages individual Internet sessions, processes
data for presentation on the television screen and manages the Web browsing
client. The second server manages real-time communications from the cable
headend to a subscriber's cable box. This server acts as a bi-directional router
for data on a cable network. These servers:
- are based on a multi-processor architecture,
- can be accessed remotely by WorldGate for performance monitoring and
software upgrades, and
- are configured so that typical full screen refresh time on:
- an analog platform is five seconds or less and
- a digital platform is as low as 1/30(th) of a second.
General Web surfing is provided by our browser technology using high
performance server headend systems. The WORLDGATE Service browser currently
supports HTML Version 3.2, HTTP Version 1.0 and 1.1, HTML Frames, Image formats
such as GIF Animations, JPEG and XBM formats. To WorldGate's knowledge,
WorldGate is the only company that supports a full Java implementation offering
on a set-top platform. Java is used for such applications as chat and instant
messaging. The WORLDGATE platform supports JavaScript that is compatible with
Microsoft and Netscape browsers.
One feature of the WORLDGATE Service is our CHANNEL HYPERLINKING technology.
When a cable television subscriber makes a CHANNEL HYPERLINKING request, the
subscriber's cable box sends a signal to the cable headend indicating the
channel and program information of the program the subscriber is viewing. This
information is then matched with the corresponding Web address for the program
which has been stored at a cable headend database. Afterwards, the subscriber is
linked to the corresponding Web site for full Internet interactivity. This
entire process occurs within seconds.
WORLDGATE'S CHANNEL HYPERLINKING TECHNOLOGY
WorldGate's Channel HyperLinking provides a flexible and instantaneous
solution for interactive television and advertising. WorldGate's Channel
HyperLinking Center is the brain of the system, managing data flow to the
WorldGate affiliate cable systems and gathering usage data to create a valuable
reporting infrastructure for advertisers, product marketers, television
networks, and cable operators.
[figure depicting five horizontal boxes. The first box is labeled
"Advertisers and Ad Agencies" and contains two smaller boxes including the
following text: "Advertising ID codes are added to master video tapes before
distribution," and "The matching Web address is associated with the Advertising
ID in WorldGate's software and sent to the CHANNEL HYPERLINKING Center." The
first box has a one-way arrow to the second box that is labeled "Broadcast and
Cable TV Network Uplink Centers." The second box contains two smaller boxes
including the following text: "Advertising ID codes travel with the broadcast
advertising signals over satellites" and "Television schedules are sent to the
CHANNEL HYPERLINKING Center by networks in advance of broadcast." The third box
is labeled WorldGate's CHANNEL HYPERLINKING Center and has a smaller box with
"Advertising ID codes are collected from all networks and sent to local cable TV
Headends" and a cylinder with "Master Database for all Channel HyperLinking"
included. The fourth box is labeled "Cable TV Headend" and has a smaller box
with
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<PAGE>
"Local cable affiliates receive data from CHANNEL HYPERLINKING Center and a
cylinder with "Local Database for National and Local Channel HyperLinks"
included. The fourth box is linked with a one-way arrow and text reading "cable
to the home" and "cable from the home" to the fifth box. The fifth box is
labeled "Analog or Digital Cable Subscriber's Home" and contains two smaller
boxes with the following text: "An on-screen prompt can be displayed for
advertising ID codes or programs that have interactive content" and "When the
consumers click remote controls to go interactive, the headend computer system
retrieves the appropriate Web pages to be displayed." The second box is
connected to the third box and the third box is connected to the fourth box by
pictures of satellite dishes and satellites.]
CABLE BOX. We believe that we are the only company providing a
television-based Internet service for both advanced analog and digital cable
boxes. This is particularly important for cable operators deploying both types
of cable boxes. WorldGate has developed technology that allows WORLDGATE enabled
advanced analog cable boxes to display the graphics and to provide real-time
communications necessary for the WORLDGATE Service. The WORLDGATE technology is
currently incorporated in an additional feature expansion module that must be
installed within General Instrument's and some models of Scientific-Atlanta's
existing advanced analog cable boxes. The WORLDGATE Service currently operates
on modified versions of the General Instrument CFT 2200 and the
Scientific-Atlanta 8600 advanced analog cable boxes. Existing models of General
Instrument's and Scientific-Atlanta's digital cable boxes, as well as
Scientific-Atlanta's 8600X advanced analog cable box, can be used to provide the
WORLDGATE Service with a software download. The software download can be done
remotely.
The advanced analog WORLDGATE platform makes use of the vertical blanking
interval to transmit its data in conjunction with regular television signals.
The vertical blanking interval is part of a television signal that is not used
for the television program. By using the vertical blanking interval, WorldGate
does not interfere with the television signal and does not require additional
bandwidth to provide the WORLDGATE Service. To provide the WORLDGATE Service,
WorldGate uses as few as five of the typically 20 to 50 television channels with
vertical blanking intervals that are available. More capacity for the WORLDGATE
Service can be provided by use of the vertical blanking interval in these
additional channels.
With the advanced analog platform, WorldGate supports data transmission
rates of up to 128 Kbps downstream from the cable operator's central facility to
the subscriber's cable box and 14 Kbps or 20 Kbps upstream from the cable box to
the cable operator's central facility. Because only keystrokes are being sent
upstream, WorldGate believes that the upstream data transmission rate is
adequate to transmit such data. The WORLDGATE advanced analog platform supports:
- up to 65,000 colors on modified versions of General Instrument's CFT 2200
and Scientific-Atlanta's 8610 advanced analog boxes and
- 16 colors on the Scientific-Atlanta 8600X advanced analog cable boxes.
WorldGate believes that there are currently over 2.3 million advanced analog
cable boxes already shipped which can be WorldGate enabled with a software
download and an additional 1 million of such boxes which can also be WorldGate
enabled with a software download and installation of additional memory in the
boxes.
The WORLDGATE digital platform uses MPEG2 technology to provide transmission
speeds of up to 27 Mbps downstream from the cable operator's central facility to
the cable box and 256 Kbps upstream from the cable box to the cable operator's
central facility. As with the advanced analog cable box, WorldGate believes that
the relatively slower upstream speed does not decrease performance of the
WORLDGATE Service. Unlike high bandwidth requirements for the downstream path
for large data transfers such as Web pages, the upstream path generally is used
for small data transfers, such as keystrokes, and does not require large
bandwidth capacity. WorldGate's digital platform provides up to 16 million
colors and will operate on the following models of digital boxes: GI DCT1000,
1200 and 2000 and WorldGate expects to operate on the GI DCT5000 and
Scientific-Atlanta's Explorer 2000. The WORLDGATE Service over the digital
platform is currently being tested by WorldGate and certain cable operators.
According to Cablevision Blue Book, over two million current generation digital
boxes
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<PAGE>
have been shipped through December 31, 1998. All of these boxes can potentially
be upgraded to support the WORLDGATE Service through a centrally-administered
software download.
Due to its thin client/server architecture, WorldGate believes that the
WORLDGATE Service can be deployed on future generation digital boxes with
minimal development by WorldGate and minimal transition cost to cable operators
offering the WORLDGATE Service on the current-generation digital platform.
In addition to operating on two-way cable systems that allow bi-directional
transmissions and communications between the cable box and the cable operator's
central facility, the WORLDGATE platform is capable of operating over a one-way
cable system that allows transmissions and communications only from the cable
operator's central facility to the cable box, by using telephone return for
communications from the cable box to the cable operator's central facility. It
is estimated that at least 55% of U.S. cable homes are currently connected to
one-way cable systems. On a one-way cable system, it is possible to transmit
data from the cable headend to the subscriber using the one-way cable system but
there is no available return path. For these one-way systems, WorldGate can use
the telephone system for the return path. The response time of the WORLDGATE
Service over two-way and one-way cable plant would be similar for most functions
except for slower responses over one-way cable plant, during login and use of
our CHANNEL HYPERLINKING technology. WorldGate also believes that the slower
speed for the telephone system return path is not a problem for subscribers
because of the generally low bandwidth requirements for the return path.
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<PAGE>
WIRELESS CABLE REMOTE CONTROL AND OPTIONAL KEYBOARD. To access and input
data on the WORLDGATE Service, cable television subscribers can use either a
standard remote control provided with their advanced analog or digital cable
boxes, or optionally, an infrared wireless keyboard that may be provided as part
of the WORLDGATE Service. WorldGate has designed this optional keyboard to
provide a full size keypad, pointing device and function keys customized for our
WORLDGATE Service, such as a CHANNEL HYPERLINKING key. WorldGate expects cable
operators to buy keyboards from WorldGate directly and make them available to
subscribers as part of the WORLDGATE Service package. Cable operators may
provide the optional keyboard to subscribers at no or minimal monthly cost, or
allow subscribers to purchase the keyboard.
[figure captioned WorldGate Server Hardware & Software depicting four linked
columns of boxes labelled "System Server," "Application Servers," "Multi-User
Client" and "Communications Manager." To the left of the first column is a
depiction of an Internet Web page connected by a line labelled "High Speed
DataLine" to the first column. The boxes in each of the columns are labelled:
"Billing," "Subscriber Data Base" and "Network Management--Network Monitoring of
Headend Equipment;" "Cluster Management," "E-Mail," "Web-based TV Listings" and
"Channel Hyperlinking Database;" "Session Manager--Manager Simultaneous Customer
Sessions," "Browser" and "Display Manager-- Formats and Encodes Browser Display
and "Data Inserter Sends Web Pages to Cable Customer" and "Data Demodulator
Receives Keystrokes from Cable Customer." To the right of the last column is a
depiction of a home television screen connected by a line labelled "Cable
Network" to the last column.]
SECURITY
The WORLDGATE Service uses a standard encryption protocol known as Secured
Sockets Layer, to encrypt data. When a WorldGate session is initiated, the
WORLDGATE enabled cable box will send a log-in request to the WorldGate headend
server. The server then creates a unique master key. The master key will be
comprised of two keys: one key is known as the public key, which is used only
for encryption, and the second key is known as the private key, which is used
only for decryption. Only the public key will be transmitted back to the cable
box. The cable box then chooses two random 128 bit numbers, the session keys,
and encrypts them with the public portion of the master key before sending the
encrypted session keys back to the server. The server receives the encrypted
session keys and decrypts them with the private portion of its master key. As a
result, both the server and the cable box have available a pair of unique
session keys which may be used to encrypt and decrypt messages and thereby
communicate securely for that particular session.
ENGINEERING AND DEVELOPMENT
To date, engineering and development have been a significant focus of
WorldGate. Development of the WORLDGATE Service has required combining technical
experience and knowledge from two historically separate industries, the Internet
and cable, as well as three years of intensive efforts. The principal elements
of WorldGate's engineering and development activities are as follows:
CHANNEL HYPERLINKING. WorldGate has been developing and will continue to
develop the systems and hardware necessary to establish a centralized CHANNEL
HYPERLINKING control facility to enable advertisers to provide data necessary to
implement CHANNEL HYPERLINKING on a large scale.
FEATURE ENHANCEMENTS. WorldGate intends to continue to expand features of
the system to integrate newly developed Web features, accessories and tools.
WorldGate also intends to support picture-in-picture capability to allow Web
pages and television programs to be viewed at the same time. WorldGate also
intends to develop system enhancements that will enable consumers to listen to
CD-quality audio while browsing the Web. WorldGate is currently working to allow
attachment of a printer to the WORLDGATE Service.
To implement its engineering and development strategy, WorldGate has
assembled an engineering team from established industry players, such as General
Instrument and Hitachi, with strong
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<PAGE>
backgrounds in real-time data communications hardware and software, digital
video, client-server software, Unix operating systems, computer networking,
circuit design and cable headend design.
SALES AND MARKETING
SALES. WorldGate utilizes its direct sales force and senior management,
including its Chief Executive Officer, to market the WORLDGATE Service. These
individuals work closely with the General Instrument and Scientific-Atlanta
sales forces to promote the WORLDGATE Service in the press, at trade shows and
conferences and through joint sales and marketing presentations worldwide.
Because WorldGate expects that the roll-out of WorldGate's service will in many
cases be tied to the introduction of new cable box deployments, it will remain
important and advantageous to WorldGate to have an integrated sales effort with
the major cable box manufacturers. WorldGate believes that its relationship with
these large industry sales forces will continue to provide efficient leads for
high volume sales. Currently, nine employees are dedicated to the sales efforts,
including its Vice President and General Manager, and the Vice President,
Affiliate Sales and Marketing.
MARKETING. WorldGate's marketing strategy is directed at four primary
constituencies: consumers, cable operators, programming content providers and
advertisers. To reach consumers, WorldGate intends to provide cable operators
with promotional content for the WORLDGATE Service including local cable
television commercial spots and insertions for monthly cable billings, in
addition to utilizing the cable operators' extensive sales networks. Because
WorldGate expects to market itself as a family service, WorldGate intends to
develop a series of television commercials aimed at various demographic market
segments, which will be customized for specific cable companies. In addition,
WorldGate plans to develop a training tape for customer service representatives
to teach them how to sell the WORLDGATE Service and how to answer commonly asked
questions. WorldGate also plans to create longer form commercials to sell the
WORLDGATE Service over cable television and ten-minute tutorial tapes to teach
consumers how to use the WORLDGATE Service. Standard print media for consumers
may include user guides, point-of-purchase displays, low-cost bill stuffers and
a monthly WorldGate news magazine tailored to the subscriber base. To enhance
the potential penetration of the WORLDGATE Service, WorldGate plans to establish
WorldGate as a known trade and consumer brand.
To reach cable operators, WorldGate has focused its marketing efforts mainly
on trade advertising and promotions, which includes demonstrations at industry
conferences and print advertising in major weekly industry news publications
such as MultiChannel News and Cable World. WorldGate has made substantial
investments in trade show booths for cable shows such as the National Cable
Television Association Cable Show, and also plans to continue to share booths
with General Instrument and Scientific-Atlanta at various upcoming trade shows.
To reach programming content providers, WorldGate has developed an
aggressive program to establish distribution arrangements with various content
providers to develop content particularly suited to the WORLDGATE Service.
Through WorldGate's distribution of such content packages as part of the
WORLDGATE Service, these providers are offered access to a pervasive medium in
which television programming can be enriched by Internet materials, and in which
consumers can experience real-time, interaction with the programming. The
television-based nature of the WORLDGATE Service provides a natural portal for
interaction between the consumer and the programming offered by these content
providers.
WorldGate has established a team to market the WORLDGATE Service, including
the opportunities created by a television-based portal to the Internet, to
television programmers, advertisers and other content providers. WorldGate's
marketing efforts to television networks have focused primarily on cable
television networks and secondarily on the broadcast networks. We believe that
national cable television networks may have some advantages over broadcast
networks in providing CHANNEL HYPERLINKING for their programming because they do
not have to contend with programming provided by numerous affiliated local
stations. Rather, just a few network feeds cover the entire nation. We believe
that our CHANNEL HYPERLINKING technology can turn the cable television network
of national programming into targeted, personalized interactive content with
very little effort on the part of television networks.
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<PAGE>
WorldGate sees value in partnering with television networks because WorldGate
believes that consumers will see value in interacting with their favorite
television programming.
WorldGate has developed a strategy to establish partnerships with television
programming content partners through distribution agreements. These distribution
agreements generally provide that our partner will provide link information and
Internet-based content particularly suited to the WORLDGATE Service and our
CHANNEL HYPERLINKING technology.
WorldGate believes that Internet and other information or service content
providers such as Citicorp, Excite and Zip2 can broaden their customer base by
taking advantage of our television-based WORLDGATE Service. The television-based
nature of the WORLDGATE Service provides a natural portal for interaction
between the consumer and the programming and other content offered by these
content providers.
WorldGate's marketing team also works with advertisers and advertising
agencies. We believe that interactive television advertising will grow
significantly in the future. WorldGate promotes the WORLDGATE Service for
television advertising directly to advertisers and top national and global
advertising agencies. In addition, WorldGate promotes the WORLDGATE Service
through the American Association of Advertising Agencies, whose members are
composed of the leading advertising agencies in the United States, and the
Association of National Advertisers, whose members are composed of advertisers.
WorldGate expects to provide value to advertisers and advertising agencies by
providing interactivity between broadcast television advertising and related
Internet content. Our CHANNEL HYPERLINKING technology is expected to combine
broad viewership of broadcast advertising with the immediacy and targeted nature
of direct marketing. During 1999, WorldGate expects to work with Nielsen Media,
MatchLogic, cable operators, television networks, advertisers and their
advertising agencies to complete a marketing study which will measure the
effectiveness and value of our CHANNEL HYPERLINKING technology for both
interactive programming and interactive advertising.
CUSTOMER SERVICE AND SUPPORT
WorldGate has developed and maintains a sales support and customer service
network infrastructure to enable it to respond to cable operator and consumer
issues. WorldGate believes that most sales support and customer service requests
can be handled by WorldGate personnel via the telephone or the Internet.
Accordingly, WorldGate has set up a 24-hour and toll free telephone help-line to
assist cable operators having technical problems with WorldGate's software or
hardware. WorldGate also plans to monitor each cable headend system utilizing
the WORLDGATE Service in an effort to detect system problems before they become
apparent to consumers, and to remotely download software updates as needed from
its principal offices in Bensalem, Pennsylvania. To assist domestic consumers
subscribing to the WORLDGATE Service, electronic on-line help is available 24
hours a day from any of the WORLDGATE Service screens. Additionally, WorldGate
intends to provide consumers with access to a telephonic help-line offering
pre-recorded answers to frequently asked questions for a nominal charge.
SYSTEM INTEGRATION
WorldGate utilizes contract manufacturing for substantially all of the major
hardware components and licenses technology necessary to provide the WORLDGATE
Service, thereby allowing WorldGate to focus resources on sales and marketing
and engineering and development related to the WORLDGATE Service. WorldGate does
not manufacture, nor does it have the capability to manufacture, any of the
components of the equipment used in providing the WORLDGATE Service. Rather,
WorldGate's internal manufacturing operations consist primarily of assembly of
prototypes, test engineering, materials purchasing, integration of equipment
components and inspection and quality control, all of which are performed at its
facilities in Bensalem, Pennsylvania. Although WorldGate has not experienced any
material difficulties in obtaining supplies or manufactured products, any
termination of the license of the technology used on the WORLDGATE platform or
any reduction or interruption in supply or manufacturing from these third-party
contractors would adversely affect its ability to deliver its products.
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INTELLECTUAL PROPERTY
We regard our technology as proprietary, and we rely on a combination of
patents, copyrights, trademarks, trade secret laws, contractual restrictions,
restrictions on disclosure and other methods to establish and protect our
technology and proprietary rights and information. We have filed patent
applications in the United States and internationally covering aspects of our
real-time, two-way interactive systems, including our thin-client architecture,
centralized data processing, communications schemes and our CHANNEL HYPERLINKING
technology. We cannot assure you that any patent will issue from these
applications or that, if issued, any claims allowed will be sufficiently broad
to protect our technology. In addition, we cannot assure you that any patents
that may be issued will not be challenged, invalidated or circumvented, or that
any rights granted to us would provide us with proprietary protection. The
failure of any patents to protect our technology may make it easier for our
competitors to offer technology equivalent or superior to our technology. We
also generally enter into confidentiality agreements with our employees and
consultants, and when possible, customers, partners and others to control access
to and distribution of our documentation and other proprietary information.
Despite these precautions, a third party may copy or otherwise obtain and use
our products, services or technology without authorization, or develop similar
technology independently. In addition, effective patent, copyright, trademark
and trade secret protection depends on the various forms of liability for
infringement. Legislators both domestically and internationally are grappling
with these issues, and the case law in this area is not fully developed.
Moreover, protection may be unavailable or limited particularly in some foreign
countries, and the global nature of the Internet makes it virtually impossible
to control the ultimate destination of our content offerings. Policing
unauthorized use of our content offerings is difficult. There can be no
assurance that the steps taken by us will prevent misappropriation or
infringement of our technology. In addition, litigation may be necessary in the
future to enforce our intellectual property rights, to protect our trade secrets
or to determine the validity and scope of the proprietary rights of others. Such
litigation could result in substantial costs and diversion of resources and
could have a material adverse effect on our business, financial condition and
results of operations. See "--Legal Proceedings." We are subject to litigation
brought by others claiming that we infringe their intellectual property. See
"--Litigation."
COMPETITION
The market for consumer Internet services is extremely competitive, and
WorldGate expects that competition will intensify in the future. Access to the
Internet is currently available through several methods including:
- telephone access through a personal computer,
- telephone access through a television,
- cable access through a personal computer, and
- cable access through a television.
While these various methods of Internet access and types of services offered may
be construed as competitive, they may also be complementary. Household members
may prefer to use different methods of Internet service/access based on
availability and their intended business or leisure use. WorldGate is working
with some of the companies described below to find ways to combine their product
and service offerings with those of WorldGate.
TELEPHONE ACCESS THROUGH A PERSONAL COMPUTER. Currently, the majority of
Internet users utilize a personal computer and a modem to access the Internet
over a telephone line through a connection to an Internet service provider
("ISP") such as America Online, Earthlink or MindSpring. WorldGate believes that
this mode of Internet access may be limited by:
- the complexity, maintenance and obsolescence issues usually associated
with a personal computer,
- bandwidth constraints of using dial-up modems with peak data transmission
speeds of 56 Kbps that may result in significant dial-up connection times
and delays,
39
<PAGE>
- expenses including:
- investment that may be required for a personal computer and a modem,
- ISP's monthly fees, which WorldGate believes range from $10-22 per month,
- possible telephone access charges, and
- the total number of users that may be simultaneously connected to an ISP.
Recent advancements within telephone systems may mitigate some of the above
factors. Integrated Services Digital Network ("ISDN") technology enables a peak
data transmission speed of 128 Kbps between the user and the ISP over specially
conditioned telephone lines. Although ISDN technology has been available for
several years, WorldGate believes that it has not been widely deployed due
primarily to its relatively high costs. Asymmetric Digital Subscriber Line
("ADSL") technology is currently the most common implementation of Digital
Subscriber Line ("xDSL") technology. ADSL enables peak data transmission speeds
of 8.4 Mbps downstream from the ISP to the user and 640 Kbps upstream from the
user to the ISP. WorldGate believes that these new technologies are expected to
have associated monthly fees in the range of $90-170.
In addition to telephone based access, satellite based access may be an
alternative. Satellite-delivered approaches such as direct broadcast satellite
("DBS") currently provide a peak data transmission speed of approximately 400
Kbps downstream and rely on dial-up modems and the telephone network for
upstream transmission ("telephone return"). In addition to the telephone
limitations discussed above, these approaches have limitations on the ability to
expand their services due to the necessity of dividing a finite amount of
satellite bandwidth among subscribers in a broad geographic area. Other wireless
offerings rely on ground-based radios instead of satellites. These offerings
include multichannel multipoint distribution service ("MMDS") and local
multipoint distribution service ("LMDS"), which are one-way and two-way
high-bandwidth wireless digital broadcasting systems, respectively. MMDS and
LMDS are not yet widely available, require unobstructed "line-of-sight"
transmission paths and may require additional radio frequency spectrum
allocations, an entirely new distribution infrastructure and new equipment,
including specialized radio modems.
TELEPHONE ACCESS THROUGH A TELEVISION. Set-top appliances, such as those
provided by WebTV, have been introduced to provide Internet access through
telephone lines to a television without requiring a personal computer.
Additional offerings for this type of service have recently been announced by
Net Channel, the assets of which have been acquired by America Online, as well
as other set-top appliance manufacturers such as American Interactive Media, The
Thomson Corporation, Teknema and Mitsubishi Electronics America, Inc. Although
such access solutions do not require a personal computer or personal computer
expertise, WorldGate believes that this mode of Internet access may be limited
by:
- the need to purchase a dedicated or "single-purpose" set-top appliance
which typically costs approximately $100-$240 and exposes the consumer to
risks of equipment obsolescence,
- the telephone bandwidth constraints discussed above,
- monthly subscription fees that may be up to $25 per month in addition to
any telephone access charges, and
- functional limitations such as the inability to support CD-quality audio
and Java-based applications, including instant messaging and chat rooms.
CABLE ACCESS THROUGH A PERSONAL COMPUTER. In order to leverage the
broadband infrastructure of cable television systems, several services have
recently been launched to provide high-speed Internet access and content to
cable subscribers with personal computers. Companies in this segment include At
Home and Road Runner. WorldGate believes that subscribers to these services
require a separate high-speed cable modem with an installation cost of
approximately $40-$100 and that additional costs are also incurred for monthly
subscription fees and cable access charges in the range of $30-$40. These
high-speed cable modems, while generally providing higher speed Internet access
than dial-up access, typically require extensive and costly cable network
upgrades.
40
<PAGE>
CABLE ACCESS THROUGH A TELEVISION. Various companies are attempting to
provide Internet access to cable television consumers through a set-top
appliance connected to a television. In some instances this appliance may be a
dedicated unit, such as is currently utilized by ICTV and the Interactive
Channel, or an advanced analog or digital cable box, such as that utilized by
the WORLDGATE Service. Generally, these solutions are cable-based and do not use
the telephone infrastructure. Accordingly, these solutions generally overcome
the bandwidth constraints typically associated with the telephone
infrastructure. The use, however, of a dedicated unit adds incremental costs
which are not present when the service is offered directly over a cable box.
Furthermore, analog-based services such as that currently offered by ICTV
require the use of one dedicated full video channel for the downstream path for
each user, which is less attractive to cable operators since such channel(s) can
no longer be used for television programming or other revenue generating
services. The WORLDGATE Service's analog platform, however, does not require a
dedicated video channel as a result of the use of the vertical blanking interval
for the downstream path. See "--Technology." Cable operators offering the
WORLDGATE Service on a digital platform will need to provide a dedicated video
channel, but it will alone support the expected usage of hundreds of WORLDGATE
Service subscribers.
Companies such as Wink and Intel broadcast supplementary text and/or
graphics information which is displayed on televisions to enhance the television
viewing experience. Typically, these systems are one-way unless a telephone and
modem is available for the return path. It is also possible for these systems to
use the pay per view polling mechanism to retrieve limited data from the
subscriber.
WorldGate believes that there are many factors which can affect success
within this market. Key factors include:
- - transmission speed,
- - ease-of-use,
- - price,
- - reliability of service,
- - ease of access,
- - obsolescence,
- - content quality,
- - quality of presentation,
- - timeliness of content,
- - customer support,
- - brand recognition,
- - operating experience,
- - revenue sharing, and
- - with respect to advertisers, the number of users, duration and frequency of
visits and user demographics.
LEGAL PROCEEDINGS
On May 11, 1998, Interactive Channel Technologies, Inc. and SMI Holdings,
Inc., subsidiaries of Source Media, Inc. ("Source"), filed a complaint against
us in the United States District Court for the District of Delaware, alleging
that the WORLDGATE Service infringes patents issued to Source. The complaint
seeks injunctive relief, as well as monetary damages and attorney fees. In our
answer filed on June 22, 1998, we have denied these allegations and further
asserted that the patents in suit were invalid. In addition we have filed
multiple counterclaims against Source asserting that Source misappropriated our
confidential information and trade secrets, and intentionally and tortiously
interfered with our existing and prospective business relationships, which
counterclaims Source has subsequently moved to dismiss. Discovery and further
action with respect to the alleged infringement has been stayed pending oral
argument on the merits of our counterclaims, which has not yet been scheduled.
On October 6, 1998, Advanced Interactive, Inc. ("AII") filed a complaint in
the United States District Court for the Northern District of Illinois, Eastern
Division, against Matsushita Electric Corporation, Matsushita Electric
Industrial Co. Ltd., Sharp Electronics, Corp., Sharp Corp., Interactive Channel
Technologies, Thomson Consumer Electronics, Toshiba Consumer Products, Inc.,
Toshiba America, Inc., Toshiba Corporation, General Instrument Corporation,
Scientific-Atlanta, Inc., ATI Technologies, Inc., ADS Technologies Inc., Gateway
2000, Inc., STB Systems, Inc., Hauppauge Computer Works, Inc., WebTV Networks,
Inc. and us, alleging that each of the above companies infringed a patent issued
to AII. The complaint seeks monetary damages and attorney fees. In our answer
filed on December 2, 1998, we have denied these allegations and further asserted
that the patent in suit was invalid.
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If the plaintiffs win either of the above lawsuits, we could be precluded
from offering the WORLDGATE Service. We intend to vigorously defend these
matters, but, as with any patent litigation, there can be no assurance that the
plaintiffs will not prevail and obtain damages and, in the event that the
plaintiffs would not accept an ongoing royalty, an injunction in which case we
could be precluded from offering the WORLDGATE service. From time to time,
others may assert infringement claims against us in the future.
Except as stated above, we are not currently involved in any material legal
proceedings.
EMPLOYEES
As of March 12, 1999, we employed 132 full-time employees and had 5
independent contractors. All of our employees and independent contractors are
located in Bensalem, Pennsylvania, except for an aggregate of four sales people
located in Colorado, Florida and Georgia. None of our employees is represented
by a labor union, and we have no collective bargaining agreement. We believe
that our relations with our employees are good.
FACILITIES
Our corporate headquarters is currently located in Bensalem, Pennsylvania
with facilities consisting of approximately 30,000 square feet. In the third
quarter of 1999, we intend to relocate our headquarters to Trevose, Pennsylvania
in a leased facility with approximately 72,000 square feet. The lease for this
space will expire in June 2009, with an option to extend for an additional 10
years.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
Our executive officers and directors are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION(S)
- ----------------------------------------------------- --- -----------------------------------------------------
<S> <C> <C>
Hal M. Krisbergh(1).................................. 51 Chairman and Chief Executive Officer
Joseph E. Augenbraun................................. 34 Vice President, Engineering
Scott B. Campbell.................................... 52 Vice President, Business Development
David A. Dill........................................ 47 Chief Financial Officer
Randall J. Gort...................................... 49 Vice President, General Counsel and Secretary
Gerard K. Kunkel..................................... 41 Vice President, Strategic Programs
Jae Hea Edward Lee................................... 35 Vice President, Operations
Peter C. Mondics..................................... 45 Vice President, Affiliate Sales and Marketing
Kenneth P. Nimmer.................................... 59 Vice President, Consumer Marketing
David E. Wachob(2)................................... 44 Director, Vice President and General Manager
Thomas G. Baxter..................................... 52 Director
Alan Gerry(1)........................................ 70 Director
Marcia J. Hooper(1).................................. 44 Director
Graham Pattison(2)................................... 48 Director
Ronald A. Walter(2).................................. 56 Director
</TABLE>
- ------------------------
(1) Member of Compensation Committee
(2) Member of Audit Committee
HAL M. KRISBERGH has been with WorldGate since its inception in March 1995.
From September 1981 to September 1994, Mr. Krisbergh was an executive officer of
General Instrument. Mr. Krisbergh served as President of General Instrument's
Communications Division and, for the past 15 years, has been a well-known figure
in the cable industry. He is a recognized leader in the development of
addressable cable boxes, impulse pay-per-view, optoelectronics and digital audio
technologies. In 1991, Mr. Krisbergh received cable television's prestigious
Vanguard award. Prior to joining General Instrument, Mr. Krisbergh was employed
by W. R. Grace & Co., Deloitte & Touche and Raytheon Company.
JOSEPH E. AUGENBRAUN joined WorldGate in August 1995. Mr. Augenbraun is
responsible for the management of the hardware and software teams developing the
WORLDGATE platform. From August 1992 to August 1995, Mr. Augenbraun was a
researcher for Hitachi's HDTV Advanced Television and Systems Laboratory. From
November 1987 to August 1992, Mr. Augenbraun was on the engineering staff at
Commodore-Amiga Inc, where he served in various capacities including Project
Manager on the Amiga 1500 Computer System and lead designer in ASIC development.
SCOTT B. CAMPBELL joined WorldGate in February 1997. Mr. Campbell was
President of Genesis International Group, a consulting firm to the cable
industry, from November 1993 to February 1997. Before that he was at Home
Shopping Network, where he served in various management and sales positions,
including: from March 1992 to February 1993 as Executive Vice
President/Diversified Marketing and Media Services, from July 1989 to March 1992
as Senior Vice President/Affiliate Relations, and from July 1986 to July 1989 as
Senior Vice President/Marketing and Sales.
DAVID A. DILL joined WorldGate in April 1996. From July 1994 to October
1995, Mr. Dill was the Vice President, Finance of General Instrument's
Communications Division. From August 1991 through March 1994, Mr. Dill held
executive positions with International Business Machines Corporation, including
Financial Analysis Director (IBM U.S. Company), Controller (Personal Systems
Business), and Assistant General Manager, Finance and Planning (RISC System/6000
Division). Prior to joining
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IBM, Mr. Dill was Vice President and Controller for the Rolm Company. From
February 1975 to August 1989, Mr. Dill held several other executive positions
with IBM, culminating in his role as Director of Finance, Communications Systems
Group.
RANDALL J. GORT joined WorldGate in August 1997. From July 1995 to August
1997, Mr. Gort was General Counsel, Secretary, and Director of Legal and
Corporate Affairs for Integrated Circuit Systems, Inc. Mr. Gort was in private
practice from August 1994 through June 1995. Prior to that time, he was an
Associate General Counsel for Commodore International Ltd. from May 1987 through
July 1994. Mr. Gort was with Schlumberger Ltd. from October 1982 through early
1987, originally as Senior Attorney and then as General Counsel, FACTRON
Division. From April 1979 through October 1982, Mr. Gort was Counsel for various
divisions of the 3M Company, including Medical and Surgical Products Divisions,
Orthopedic Products Division, Electro-Mechanical Resources Division and 3M's
four Tape divisions.
GERARD K. KUNKEL joined WorldGate in February 1997. Mr. Kunkel is
responsible for the development and deployment of WorldGate's CHANNEL
HYPERLINKING business and technology. From May 1995 to February 1997, Mr. Kunkel
was President of Broadband Applications Development Company. From March 1993 to
April 1995, he served as Vice President, Product Development of StarNet, Inc.
From June 1991 to March 1993, Mr. Kunkel was President of The Kunkel Group. From
May 1984 to June 1991, Mr. Kunkel was Director of Design and Electronic
Publishing for PC MAGAZINE. For the period 1977 through 1984, Mr. Kunkel was an
award winning art director for various New York City based magazines.
JAE HEA EDWARD LEE has been with WorldGate since its inception in March
1995. Mr. Lee is responsible for all manufacturing, quality assurance, field
operations and information technology. From October 1991 through January 1995,
Mr. Lee was General Manager and then President of RGB Industries, Inc., a
manufacturing and import/export business. From September 1987 to October 1991,
Mr. Lee was a Design Engineer for General Instrument's Jerrold Division, where
his responsibilities included the development of application specific integrated
circuits and management of the division's engineering local area network.
PETER C. MONDICS has been with WorldGate since March 1996. From January 1994
through February 1996, Mr. Mondics was a principal with New Ventures Business
Planning, a corporation formed to conceptualize, model, create and distribute
new business models for clients seeking entry into the cable operator, phone and
wireless distributed service businesses. From February 1991 to December 1993,
Mr. Mondics was President of NuStar, Inc. and Executive Vice-President of
StarNet, NuStar's parent entity. From February 1987 to January 1991, Mr. Mondics
was Vice-President of NuStar's Network Sales. Mr. Mondics was Eastern Regional
Vice-President of Financial News Network from June 1984 to January 1987 and
Marketing Manager for Home Box Office from May 1981 to May 1984.
KENNETH P. NIMMER has served WorldGate as a consultant since its inception
in March 1995, and became an employee of WorldGate in March 1999. Mr. Nimmer is
responsible for Consumer Marketing and Customer Support. From January 1985 to
March 1997, Mr. Nimmer was an executive at General Instrument where he
co-developed programming enterprises such as Cable Video Store, Cable Catalog
Store, Cine Canal and Movie Choice. Prior to General Instrument, from February
1983 to January 1985, Mr. Nimmer was a co-founder and Senior Vice President and
General Manager of the Nostalgia Network, now known as Good Life Television.
Prior to joining the Nostalgia Network, Mr. Nimmer worked in higher education
for 12 years.
DAVID E. WACHOB has been with WorldGate since its inception in March 1995.
Between 1991 and 1995, Mr. Wachob was President of Network Resources
Incorporated, an independent consulting company for the cable, cellular,
telecommunications and consumer electronics industries. From June 1988 to
September 1991, Mr. Wachob was Director of Advanced Technologies for General
44
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Instrument where he managed strategic planning, market research, technical
assessment and business development of advanced technologies for the cable
television industry. Mr. Wachob's other positions with General Instrument
included, from July 1986 to June 1988, Manager of Product Support Engineering,
and from November 1984 to July 1986, Radio Frequency Systems Engineer.
THOMAS G. BAXTER has been a member of WorldGate's board of directors since
July 1998. Mr. Baxter has been an operating partner in the investment banking
firm of Evercore Partners since June 1998. Mr. Baxter is also a director of
C-SPAN and Dycom Industries, Inc. Prior to his current position Mr. Baxter
served as President of Comcast's cable subsidiary, Comcast Cable Communications,
Inc., the nation's fifth largest cable television operation at that time, from
January 1990 to January 1998. Mr. Baxter was also responsible for the operations
of Comcast's telephone and cable systems in the United Kingdom. Prior to joining
Comcast Mr. Baxter held executive positions with Cablevision Systems Corporation
and Time Warner Entertainment Company, Inc.
ALAN GERRY has been a member of WorldGate's board of directors since April
1997. Mr. Gerry founded Granite Associates, L.P., a private investment company,
and presently serves as its Chairman and Chief Executive Officer. Mr. Gerry was
the founder, and for at least the last 3 years prior to 1996, he was the
Chairman and Chief Executive Officer of Cablevision Industries Corporation, the
eighth largest multiple system operator in the United States, with over 1.3
million subscribers at the time of its merger with Time Warner Inc. in 1996. Mr.
Gerry has been the recipient of numerous awards and citations including the
cable television industry's prestigious Vanguard Award for Distinguished
Leadership, which he received in 1995. Mr. Gerry is a veteran of the U.S. Marine
Corps.
MARCIA J. HOOPER has been a member of WorldGate's board of directors since
April 1997. Ms. Hooper has been a partner with the Information Technology Group
of Advent International Corporation since May 1996. Ms. Hooper is also a
director of Interleaf, Inc., Signal Internet Technologies, Inc., LionBridge
Technology, Inc., PolyMedica Industries, Inc. and Wang Laboratories, Inc. In
July 1994 Ms. Hooper co-founded Viking Capital Group, Inc., a venture firm
focused on early stage investments. From May 1979 to July 1994, Ms. Hooper was
employed as a general partner with Paine Webber/Ampersand Ventures.
GRAHAM PATTISON has been a member of WorldGate's board of directors since
August 1998. Mr. Pattison has held executive positions with Motorola for over
ten years and is currently the Vice President and General Manager of new
business ventures in the Internet and Networking Group of Motorola, which
position he has held since August 1998. In his current capacity Mr. Pattison is
responsible for overseeing new market and product development, acquisitions and
alliances across ING's networking businesses. Mr. Pattison previously held the
position of Vice President and General Manager of the Networking Systems
Division of Motorola, which position he held from April 1996. Mr. Pattison has
also served as General Manager for the Europe, Middle East and Africa region of
Motorola's Information Systems Group.
RONALD A. WALTER has been a member of WorldGate's board of directors since
April 1998. Mr. Walter has been a Vice President of Citicorp and Citibank, N.A.
since May 1979. He serves as Director of Investments for Citicorp's proprietary
long-term equity investment program and manages the investment program for the
assets supporting Citigroup's employee benefit programs. He is also a partner
with Citicorp's internal Mergers and Acquisition team and its Corporate
Technology Office. His previous experience with Citicorp includes serving as
Secretary of Citicorp's Finance Committee, Head of Strategic Analysis and Chief
Financial Officer for the company's equipment finance and leasing business. Mr.
Walter was a member of the Urban Planning faculty at MIT and was part of the
management team responsible for ending the financial crisis in the City of New
York.
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<PAGE>
BOARD OF DIRECTORS AND COMMITTEES
Each director is elected to hold office until the next annual meeting of
stockholders and until his or her respective successor is elected and qualified.
The board of directors has a compensation and stock option committee (the
"Compensation Committee") which makes recommendations to the board concerning
the compensation and benefits programs for its directors, officers and
employees, including all stock options granted under WorldGate's 1996 stock
option plan. Currently, the Compensation Committee is composed of Messrs.
Krisbergh and Gerry and Ms. Hooper. The board also has an audit committee which
is composed of Mr. Wachob and two outside directors, Mr. Walter and Ms. Hooper.
COMPENSATION OF DIRECTORS
Mr. Baxter and Ms. Hooper are reimbursed for travel and other expenses
related to their service on the board of directors. In addition, WorldGate pays
to Mr. Baxter a stipend of $1,000 for each board meeting he attends in person
and WorldGate has granted to him an option to purchase 10,000 shares of common
stock at an average weighted exercise price of $8.50 per share. These options
will vest in four equal annual installments on the anniversary of the grant
date. Other than Mr. Baxter and Ms. Hooper, no other board member is reimbursed
for his or her travel and other expenses or compensated for his or her service
on the board.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
With the exception of Mr. Krisbergh, no member of the Compensation Committee
is an officer or employee of WorldGate. Mr. Krisbergh does not, however,
participate in the determination of his own compensation. No executive officer
of WorldGate serves as a member of the board of directors or compensation
committee of any entity that has one or more executive officers serving on the
Compensation Committee.
EMPLOYMENT AGREEMENTS
No employee of WorldGate has entered into an employment agreement with
WorldGate.
BONUS PLAN
WorldGate has established a bonus plan which provides for the payment of
bonuses to executive officers and other employees based upon the performance of
WorldGate, the performance of the business division of which the officer or
employee is a member and the performance of the officer or employee. Under this
plan, WorldGate generally assesses the prior year's performance and makes bonus
payments during the first calendar quarter of each year.
EXECUTIVE COMPENSATION
The following table sets forth information concerning compensation paid in
fiscal year 1998 with respect to WorldGate's chief executive officer and its
four other most highly compensated executive officers. As of March 16, 1999, the
bonuses listed below had been accrued and reflected in the 1998 results but no
bonus had been paid.
46
<PAGE>
SUMMARY COMPENSATION TABLE
FISCAL YEAR 1998
<TABLE>
<CAPTION>
LONG TERM
COMPENSATION
AWARDS
-----------------
ANNUAL COMPENSATION SECURITIES
---------------------- UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION SALARY BONUS OPTIONS COMPENSATION
- --------------------------------------------------------- ---------- ---------- ----------------- -------------
<S> <C> <C> <C> <C>
Hal M. Krisbergh......................................... $ 320,250(1) $ 144,113 -- $ --
Chairman and Chief Executive Officer
David A. Dill............................................ 193,218 67,626 -- --
Chief Financial Officer
Scott B. Campbell........................................ 160,000 48,000 -- --
Vice President, Business Development
Peter C. Mondics......................................... 159,375 47,813 -- --
Vice President, Affiliate Sales and Marketing
David E. Wachob.......................................... 149,450 44,835 -- --
Director, Vice President and General Manager
</TABLE>
- ------------------------
(1) As of March 15, 1999, $66,250 of Mr. Krisbergh's salary had been accrued and
reflected in the 1998 results but had not been paid.
No options were granted to any executive officer named in the Summary
Compensation Table in 1998. Since December 31, 1998, Messrs. Dill, Campbell,
Mondics and Wachob have each been granted options to purchase 13,333 shares of
common stock at an exercise price of $16.50 per share.
The following table sets forth information concerning options exercised
during 1998 and the number and the hypothetical value of unexercised options of
WorldGate held by the executive officers named in the Summary Compensation Table
as of December 31, 1998. This table is presented solely for purposes of
complying with the Commission rules and does not necessarily reflect the amounts
the optionees will actually receive upon any sale of the shares acquired upon
exercise of the options. There was no public market for the common stock as of
December 31, 1998. The values of the unexercised in-the-money options at
December 31, 1998 have been calculated using a price of $7.50 per share, the
fair market value of the common stock as of December 31, 1998, as determined by
the board of directors on the basis of its assessment of WorldGate's prospects,
financial condition and results of operations as of that date, less the
aggregate exercise price. The values of the unexercised in-the-money options
based on the initial offering price have been calculated using a price of $13.00
per share, the mid-point of the range of the expected initial public offering
price, less the aggregate exercise price.
AGGREGATE OPTION EXERCISES AND
LAST FISCAL YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
VALUE OF
UNEXERCISED
IN-THE-MONEY
OPTIONS
NUMBER OF SECURITIES BASED ON
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED THE INITIAL
OPTIONS AT DECEMBER 31, 1998 IN-THE-MONEY OPTIONS OFFERING
SHARES DECEMBER 31, 1998 PRICE
ACQUIRED VALUE ------------------------------ -------------------------- -----------
NAME ON EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE EXERCISABLE
- ------------------ --------------- ------------- ------------- --------------- ----------- ------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Scott B.
Campbell........ -- -- 15,000 45,000 $ 78,750 $ 236,250 $ 161,250
Peter C.
Mondics......... -- -- 16,666 50,000 95,309 285,938 186,972
<CAPTION>
NAME UNEXERCISABLE
- ------------------ -------------
<S> <C>
Scott B.
Campbell........ $ 483,750
Peter C.
Mondics......... 560,938
</TABLE>
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<PAGE>
KEY MAN INSURANCE
WorldGate maintains key man insurance policies in the amounts of $3.0
million on Hal Krisbergh and $1.0 million on David Wachob.
STOCK OPTION PLAN
WorldGate has one stock option plan, the 1996 stock option plan, as amended,
under which, as of March 16, 1999, options for 913,752 shares of common stock
were outstanding and options for an additional 19,581 shares were available for
future grants. Outstanding options are exercisable at prices ranging from $.75
to $16.50 per share. The maximum number of shares of common stock reserved for
the grant or settlement of awards under the stock option plan is 933,333 subject
to adjustment as provided in the plan in the event of changes to WorldGate's
capital structure, such as stock dividends, stock splits or other
recapitalizations. Generally, outstanding options vest in equal installments
over a four-year period, but in no event may an option be exercised more than 10
years following the date of its grant, subject to acceleration in the event of
some changes of control of WorldGate.
The stock option plan is intended to promote the long term financial
interests and growth of WorldGate by providing employees, officers, directors
and consultants of WorldGate with appropriate incentives and rewards to enter
into and continue in the employ of, or their relationship with, WorldGate. The
stock option plan gives recipients the opportunity to acquire a proprietary
interest in the long-term success of WorldGate and rewards the performance of
individual officers, other employees, consultants and directors in fulfilling
their responsibilities for long-range achievements.
The stock option plan provides for the granting of awards to such officers,
other employees, consultants and directors of WorldGate and its affiliates as
the Compensation Committee may select from time to time. If any shares subject
to an award are forfeited, canceled, exchanged or surrendered or if an award
otherwise terminates or expires without a distribution of shares to the holder
of such award, the shares of common stock with respect to such award will, to
the extent of any such forfeiture, cancellation, exchange, surrender,
termination or expiration, again be available for awards under the stock option
plan.
The Compensation Committee has the authority to administer the stock option
plan and to exercise all the powers and authorities either specifically granted
to it under, or necessary or advisable in the administration of, the stock
option plan, including, without limitation, the authority to grant awards; to
determine the persons to whom and the time or times at which awards shall be
granted; to determine the type and number of awards to be granted, the number of
shares of common stock to which an award may relate and the terms, conditions,
restrictions and performance goals relating to any award; to determine whether,
to what extent, and under what circumstances an award may be settled, canceled,
forfeited, exchanged, or surrendered; to make adjustments in the performance
goals in recognition of unusual or non-recurring events affecting WorldGate or
the financial statements of WorldGate (to the extent not inconsistent with
Section 162(m) of the Code, if applicable), or in response to changes in
applicable laws, regulations, or accounting principles; to construe and
interpret the stock option plan and any award; to prescribe, amend and rescind
rules and regulations relating to the stock option plan; to determine the terms
and provisions of agreements evidencing awards; and to make all other
determinations deemed necessary or advisable for the administration of the stock
option plan.
The purchase price per share payable upon the exercise of an option (the
"option exercise price") will be established by the Compensation Committee,
provided, however, that Incentive Stock Options may not have an option exercise
price less than the fair market value of a share of common stock on the date of
grant. The option exercise price is payable by any one of the following methods
or a combination thereof, to the extent permitted by the Compensation Committee:
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- in cash or by check or wire transfer,
- subject to the approval of the Compensation Committee, in common stock
owned by the participant for at least six months prior to the date of
exercise and valued at their fair market value on the effective date of
such exercise, or
- subject to the approval of the Compensation Committee, by such other
provision as the Compensation Committee may from time to time authorize.
The board of directors or the Compensation Committee may suspend, revise,
terminate or amend the stock option plan at any time, provided, however, that:
- stockholder approval will be obtained if and to the extent required under
Rule 16b-3 promulgated under the Exchange Act or if and to the extent the
board determines that such approval is required for purposes of satisfying
Section 162(m) or Section 422 of the Code and
- no such suspension, revision, termination or amendment may, without the
consent of a participant, reduce the participant's rights under any
outstanding award.
Section 162(m) of the Code limits the extent to which remuneration paid to a
chief executive officer or the four other highest compensated executive officers
is deductible by a publicly held corporation when the remuneration for any of
these executive officers exceeds $1,000,000 in a taxable year. When a named
executive officer exercises an option which is not an incentive stock option, or
makes a disqualifying disposition of stock acquired by exercising an incentive
stock option, the executive officer generally recognizes income. WorldGate's
deduction with respect to that income will not be limited to $1,000,000 if the
requirements of Section 162(m) of the Code are met.
CERTAIN TRANSACTIONS
RESTRUCTURING. We were organized in March 1995 as a Pennsylvania limited
liability company (the "LLC"). In December 1996, the LLC was merged with and
into WorldGate as a result of which all assets and liabilities of the LLC were
transferred to us. Pursuant to the merger, the members of the LLC (collectively,
the "Management Stockholders") received an aggregate of 9,100,801 shares of our
common stock in exchange for the cancellation of their membership interests in
the LLC, including the shares of common stock received by the following
management employees: Hal M. Krisbergh-- 6,776,780 shares, David E.
Wachob--608,312 shares, David A. Dill--369,989 shares, Joseph E.
Augenbraun--333,850 shares, Jae Hea E. Lee--333,850 shares, and Randall J.
Gort--259,750 shares. Of the total shares allocated to the Management
Stockholders, 808,733 shares of our common stock were issued subject to vesting
over a defined period as described further in the "Management Shareholders'
Agreement" discussed below.
MANAGEMENT SHAREHOLDERS AGREEMENT. Each of the Management Stockholders who
received shares of our common stock in the merger entered into a Management
Shareholders' Agreement with us (the "Management Agreement") providing for some
voting agreements, restrictions on transfer of our common stock, rights of first
refusal and vesting arrangements.
Pursuant to the Management Agreement, each Management Stockholder and his
transferees are obligated to vote for Mr. Krisbergh's designees to the Board. No
Management Stockholder may transfer his shares, except for:
- transfers to family members and
- transfers of up to five percent of his total shares,
PROVIDED that such transferees agree to be bound by the Management Agreement.
Any Management Stockholder who wishes to sell more than five percent of his
shares must first offer to sell such shares to the other Management Stockholders
on a pro rata basis. The Management Agreement also sets
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<PAGE>
forth the vesting arrangements for some of the Management Stockholder's shares,
and provides that any shares that remain unvested at the time of termination of
a Management Stockholder's employment (other than by reason of death) shall be
distributed pro rata to the remaining Management Stockholders and will fully
vest upon such distribution. Unvested shares will be transferred to a Management
Stockholder's estate or heirs in the event of his death.
The Management Agreement automatically terminates upon the consummation of
this offering.
PREFERRED STOCK FINANCINGS. We have financed substantially all of our
operations to date from private placements of preferred stock, a capital
contribution from stockholders, a $2.0 million line of credit and the issuance
of our $6.0 million face-amount of our discounted notes. Each share of our
series A preferred stock was initially convertible into two shares of our common
stock, each share of our series B preferred stock was initially convertible into
one share of our common stock and each share of our series C preferred stock was
initially convertible to one share of our common stock, subject to some
anti-dilution protections. As a result of the stock split, each share of our
series A preferred stock will convert into one and one-third shares of our
common stock, each share of our series B preferred stock will convert into
two-thirds of a share of our common stock and each share of our series C
preferred stock will convert into two-thirds of a share of our common stock.
Each of these series of stock will automatically convert into common stock upon
the closing of this offering.
From December 1996 through July 1997, we sold an aggregate of 2,752,111
shares of our series A preferred stock at a purchase price of $4.395 per share
to various investors, including Citicorp, AMP Incorporated, Alan Gerry,
Motorola, funds affiliated with Advent International Corporation, Needham &
Company, Paul Kagan, Scientific-Atlanta and General Instrument (collectively,
the "series A investors").
From November 1997 through January 1998, we sold an aggregate of 2,803,031
shares of our series B preferred stock at a purchase price of $7.10 per share to
various investors, including Citicorp, Needham & Company, H.F. Lenfest, Charter
and Paul Kagan (collectively, the "series B investors").
From September 1998 through February 1999, we sold an aggregate of 1,529,714
shares of our series C preferred stock at a purchase price of $11.00 per share
to various investors, including Citicorp, Needham & Company, General Instrument,
Scientific-Atlanta, Charter, Showtime and XL Capital L.L.C. (collectively, the
"series C investors").
In March 1999, we received proceeds of approximately $912,000 and $4,558,000
through the issuance of $1,000,000 and $5,000,000 of notes payable with a stated
interest rate of 12.48% due September 1999 and December 1999, respectively. In
connection with the issuance of these notes payable, the holders of these notes
received warrants to purchase the number of shares of common stock equal to
$5,469,600 divided by the lower of $16.50 and the initial public offering price
at an exercise price equal to the lower of the initial offering price and
$16.50. Assuming an initial public offering price of $13.00 per share, these
holders may purchase up to 420,738 shares of common stock. These notes become
immediately due upon the completion of WorldGate's initial public offering.
STOCKHOLDERS' AGREEMENT. The series A investors, the series B investors,
series C investors, Messrs. Krisbergh and Wachob, some other management
personnel of WorldGate, WorldGate and other stockholders are parties to a
stockholders' agreement. Pursuant to the stockholders' agreement:
- Hal M. Krisbergh designated David E. Wachob, Alan Gerry and Thomas G.
Baxter,
- Motorola designated Graham Pattison,
- the series A investors, other than Motorola, designated Marcia J. Hooper,
and
- the series B investors designated Ronald A. Walter
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to our board of directors. The material provisions of the stockholders'
agreement will terminate upon the consummation of this offering, except for the
registration rights provided in the stockholder's agreement. See "Shares
Eligible for Future Sale--Registration Rights."
OFFICER LOANS. During the fall of 1996, we borrowed approximately $350,000
from Hal M. Krisbergh in exchange for a seven percent demand note which was
repaid in full out of the proceeds of the initial series A preferred stock
financing.
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PRINCIPAL STOCKHOLDERS
The following table sets forth information as of March 15, 1999 regarding
beneficial ownership of the common stock by the following persons as adjusted to
reflect the sale of the shares offered hereby:
- each person who is known to us to own beneficially more than 5% of the
outstanding shares of common stock,
- each director of WorldGate,
- each officer of WorldGate named in the executive compensation table above,
- all directors and executive officers of WorldGate as a group.
Unless otherwise indicated below, to our knowledge, all persons listed below
have sole voting and investment power with respect to their shares of common
stock, except to the extent authority is shared by spouses under applicable law.
Beneficial ownership is determined in accordance with the rules of the SEC,
based on factors including voting and investment power with respect to shares,
subject to applicable community property laws. Shares of common stock subject to
options or warrants exercisable within 60 days of March 15, 1999 are deemed
outstanding for the purpose of computing the percentage ownership of the person
holding such options or warrants, but are not deemed outstanding for computing
the percentage ownership of any other person. See "Certain
Transactions--Preferred Stock Financings."
Unless otherwise indicated, the mailing address of such beneficial owners is
3220 Tillman Drive, Suite 300, Bensalem, Pennsylvania 19020.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
PRIOR TO THE OFFERING AFTER THE OFFERING
------------------------- -------------------------
<S> <C> <C> <C> <C>
NUMBER OF NUMBER OF
NAME AND ADDRESS(2) SHARES PERCENTAGE SHARES PERCENTAGE
- -------------------------------------------- ---------- ------------- ---------- -------------
Citicorp.................................... 1,124,442 7.2 1,157,076 5.7%
153 East 53(rd) Street
New York, NY 10043
Hal M. Krisbergh(1)......................... 6,515,686 41.6 6,515,686 31.9
Scott B. Campbell........................... 15,000 * 15,000 *
David A. Dill(2)............................ 369,988 2.4 369,988 1.8
Peter C. Mondics(3)......................... 35,858 * 35,858 *
David E. Wachob............................. 557,897 3.6 557,897 2.7
Alan Gerry.................................. 606,666 3.9 606,666 3.0
Marcia J. Hooper(4)......................... -- * -- *
Ronald A. Walter(5)......................... -- * -- *
Thomas G. Baxter............................ 1,666 * 1,666 *
Graham Pattison(6).......................... -- * -- *
All current directors and executive
officers as a group (15 persons)(7)....... 9,003,969 57.3 9,003,969 43.9
</TABLE>
- ------------------------
* Less than 1% of the outstanding Common Stock.
(1) Includes (a) 15,237 shares of common stock held by Mr. Krisbergh as
custodian for his minor child and (b) 15,237 shares of common stock held by
Mr. Krisbergh's wife as custodian for their minor child. Mr. Krisbergh
disclaims beneficial ownership of the shares owned by his minor child.
(2) Includes 26,666 shares of common stock held by Mr. Dill as custodian for his
two minor children. Mr. Dill disclaims beneficial ownership of the shares
owned by his minor children.
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(3) Includes 2,666 shares of common stock held by Mr. Mondics' minor child,
6,666 shares of common stock held jointly with his wife and options to
purchase 25,000 shares of common stock.
(4) Does not include 379,218 shares of common stock held by funds that are
affiliated with Advent International Corporation as follows: Adtec Limited
Partnership (60,674 shares), Advent Crown Fund, C.V. (60,068 shares),
Digital Media & Communications, L.P. (240,880 shares), and Advent Partners
Limited Partnership (17,596 shares). Ms. Hooper is a partner and an officer
of Advent International Corporation and an officer of several of the Advent
funds, and was originally elected to the Company's Board of Directors as a
representative of the holders of the Series A Preferred Stock. Ms. Hooper
disclaims beneficial ownership of the shares held of record by the Advent
funds.
(5) Does not include 1,124,442 shares of common stock held by Citicorp. Mr.
Walter is a vice president of Citicorp and Citibank, NA.
(6) Does not include 454,666 shares of common stock held by Motorola, Inc. Mr.
Pattison is a vice president of Motorola, Inc.
(7) Includes (a) options to purchase 56,666 shares of common stock and (b)
87,034 shares of common stock owned by family members or affiliates of some
members of the group.
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DESCRIPTION OF CAPITAL STOCK
WorldGate's authorized capital stock consists of 50,000,000 shares of common
stock, par value $.01 per share, and 13,500,000 shares of preferred stock, par
value $.01 per share. The following summary is qualified in its entirety by
reference to our Amended and Restated Certificate of Incorporation, as amended,
a form of which is filed as an exhibit to the registration statement of which
this prospectus is a part.
COMMON STOCK
As of March 16, 1999, there were 15,658,690 shares of common stock
outstanding. After giving effect to the issuance of 4,500,000 shares of common
stock offered by WorldGate at an assumed offering price of $13.00 per share,
there will be 20,433,282 shares of common stock outstanding. The rights,
preferences and privileges of holders of common stock are subject to, and may be
adversely affected by, the rights of holders of shares of any series of
preferred stock which WorldGate may designate and issue in the future. See
"--Preferred Stock."
Holders of common stock are entitled to one vote per share on all matters
submitted to a vote of holders of common stock. The holders of common stock do
not have cumulative voting rights. The election of directors is determined by a
plurality of votes cast, and, except as otherwise required by law, WorldGate's
certificate of incorporation or by-laws, all other matters are determined by a
majority of the votes cast. See "Risk Factors--Your ability to influence the
outcome of stockholder votes may be limited by the significant ownership
interest of our chairman and chief executive officer." The common stock has no
preemptive rights and is not convertible, redeemable or assessable. The holders
of common stock are entitled to receive ratably such dividends, if any, as may
be declared by the board out of legally available funds, subject to any
preferential dividend rights of outstanding preferred stock. Upon any
liquidation, dissolution or winding up of WorldGate, after payment of all debts
and liabilities of WorldGate and after payment of any liquidation preferences of
then outstanding preferred stock, the holders of common stock will be entitled
to receive a portion of all remaining assets that are legally available for
distribution.
PREFERRED STOCK
WorldGate, by resolution of the board of directors and without any further
vote or action by the stockholders, has the authority, subject to certain
limitations prescribed by law, to issue from time to time up to an aggregate of
13,500,000 shares of preferred stock in one or more classes or series and to
determine the designation and the number of shares of any class or series as
well as the voting rights, preferences, limitations and special rights, if any,
of the shares of any class or series, including dividend rights, dividend rates,
conversion rights and terms, redemption rights and terms, and liquidation
preferences. The issuance of preferred stock may have the effect of delaying,
deferring or preventing a change of control of WorldGate. Upon the closing of
this offering, there will be no shares of preferred stock outstanding, and
WorldGate currently has no plans to issue any shares of preferred stock.
LIMITATION ON LIABILITY
WorldGate's certificate of incorporation limits or eliminates the liability
of WorldGate's directors or officers to WorldGate or its stockholders for
monetary damages to the fullest extent permitted by the Delaware General
Corporation Law, as amended (the "DGCL"). The DGCL provides that a director of
WorldGate shall not be personally liable to WorldGate or its stockholders for
monetary damages for a breach of fiduciary duty as a director, except for
liability:
- for any breach of such person's duty of loyalty,
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<PAGE>
- for acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law,
- for the payment of unlawful dividends and some other actions prohibited by
Delaware corporate law, and
- for any transaction resulting in receipt by such person of an improper
personal benefit.
The certificate of incorporation also provides that the directors shall be
entitled to the benefits of all limitations on the liability of directors
generally that now or hereafter become available under the DGCL. The certificate
of incorporation also contains provisions indemnifying WorldGate's directors,
officers and employees to the fullest extent permitted by the DGCL.
WorldGate maintains directors' and officers' liability insurance to provide
its directors and officers with insurance coverage for losses arising from
claims based on breaches of duty, negligence, error and other wrongful acts. See
"Business--Legal Proceedings" for a discussion of pending litigation.
CERTAIN ANTI-TAKEOVER PROVISIONS
The ability of WorldGate's board under WorldGate's certificate of
incorporation to establish the rights of, and to cause WorldGate to issue,
substantial amounts of preferred stock without the need for stockholder
approval, upon such terms and conditions, and having such rights, privileges and
preferences, as WorldGate's board may determine from time to time in the
exercise of its business judgment, may, among other things, be used to create
voting impediments with respect to changes in control of WorldGate or to dilute
the stock ownership of holders of common stock seeking to obtain control of
WorldGate. The rights of the holders of common stock will be subject to, and may
be adversely affected by, any preferred stock that may be issued in the future.
The issuance of preferred stock, while providing desirable flexibility in
connection with possible acquisitions, financings and other corporate
transactions, may have the effect of discouraging, delaying or preventing a
change in control of WorldGate. WorldGate has no present plans to issue any
shares of preferred stock.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
Section 203 of the DGCL prohibits some "business combinations" between a
Delaware corporation and an "interested stockholder," which is defined as a
person who, together with any affiliates or associates of such person,
beneficially owns, directly or indirectly, 15% or more of the outstanding voting
shares of a Delaware corporation. For purposes of Section 203, business
combinations are defined broadly to include mergers, consolidations, sales or
other dispositions of assets having an aggregate value in excess of 10% of the
consolidated assets of the corporation and some transactions that would increase
the interested stockholder's proportionate share ownership in the corporation.
Section 203 prohibits any such business combination for a period of three years
commencing on the date the interested stockholder becomes an interested
stockholder, unless
- the business combination is approved by the corporation's board of
directors prior to the date the interested stockholder becomes an
interested stockholder,
- the interested stockholder acquired at least 85% of the voting stock of
the corporation (other than stock held by directors who are also officers
or by some employee stock plans) in the transaction in which it becomes an
interested stockholder or
- the business combination is approved by a majority of the board of
directors and by the affirmative vote of two-thirds of the outstanding
voting stock that is not owned by the interested stockholder.
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<PAGE>
See "Risk Factors--Anti-takeover provisions in our charter documents could
discourage unwanted takeover attempts and could reduce the opportunity for
stockholders to get a premium for their shares."
The DGCL contains provisions enabling a corporation to avoid Section 203's
restrictions if stockholders holding a majority of the corporation's voting
stock approve an amendment to the corporation's certificate of incorporation or
by-laws to avoid the restrictions. WorldGate has not and does not currently
intend to "elect out" of the application of Section 203 of the DGCL.
BYLAWS
Our bylaws contain provisions that require advance notice to be delivered to
us of any business to be brought by a stockholder before an annual or special
meeting of stockholders and that specify procedures to be followed by
stockholders in nominating persons for election to our board. Generally, the
advance notice provisions require that the stockholder must give written notice
to the Secretary of WorldGate:
- in the case of an annual meeting, not less than 90 days nor more than 120
days before the first anniversary of the preceding year's annual meeting
of stockholders, and
- in the case of a special meeting, not less than 90 days, or, if later, 10
days after the first public announcement of the date of the special
meeting, nor more than 120 days prior to the scheduled date of such
special meeting.
In each case, the notice must set forth specific information regarding the
stockholder and each director nominee or other business proposed by the
stockholder, as applicable.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for WorldGate's common stock is American
Stock Transfer & Trust Company.
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for our common stock, and
we cannot assure you that a significant public market for our common stock will
develop or be sustained after this offering. Future sales of substantial amounts
of our common stock (including shares issued upon exercise of outstanding
options and warrants) in the public market after this offering could adversely
affect market prices prevailing from time to time and could impair our ability
to raise capital through the sale of our equity securities.
Upon completion of this offering, 20,433,282 shares of our common stock will
be outstanding based on shares outstanding on March 16, 1999, and assuming no
exercise of options or warrants. Of these shares, the 4,500,000 shares
registered and sold in this offering will be freely tradable without
restriction, except that shares purchased by our "affiliates," as that term is
defined in Rule 144 under the Securities Act, may generally be sold only in
compliance with the limitations of Rule 144. The remaining approximately 15.9
million shares of our common stock (the "Restricted Shares") were issued and
sold by us in private transactions in reliance upon exemptions from the
registration requirements of the Securities Act and are therefore deemed
"restricted securities" as defined in Rule 144 and may not be sold in the
absence of registration under the Securities Act unless an exemption is
available, including an exemption afforded by Rule 144 or Rule 701. See "Risk
Factors-- Substantial sales of our common stock could lower our stock price."
In general, under Rule 144 as currently in effect, a person (or persons
whose shares are aggregated) who has beneficially owned "restricted shares" (as
defined in Rule 144) for at least one
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<PAGE>
year (including the holding period of any prior owner, except an affiliate) is
entitled to sell, within any three-month period, a number of shares that does
not exceed the greater of
- one percent of the number of shares of common stock then outstanding or
- the average weekly trading volume of the common stock on the Nasdaq
National Market during the four calendar weeks preceding the required
filing of a Form 144 with respect to such sale.
Sales under Rule 144 are also subject to some manner of sale provisions and
notice requirements and to the availability of current public information about
us. Under Rule 144(k), a person who is not deemed to have been an affiliate at
any time during the three-month period preceding a sale, and who has
beneficially owned the shares proposed to be sold for at least two years
(including the holding period of any prior owner except an affiliate), is
entitled to sell such shares without complying with the manner of sale, public
information, volume and other limitation or notice provisions of Rule 144.
Rule 144A under the Securities Act provides a non-exclusive safe harbor
exemption from the registration requirements of the Securities Act for specified
resales of restricted securities to some institutional investors. In general,
Rule 144A allows unregistered resales of restricted securities to a "qualified
institutional buyer," which generally includes an entity, acting for its own
account or for the account of other qualified institutional buyers, that in the
aggregate owns or invests on a discretionary basis at least $100 million in
securities of issuers that are not affiliated with the entity, as long as these
securities when issued were not of the same class as securities listed on a
national securities exchange or quoted on Nasdaq. The shares of our common stock
outstanding as of the date of this prospectus would be eligible for resale under
Rule 144A because such shares, when issued, were not of the same class as any
listed or quoted securities.
STOCK OPTIONS AND WARRANTS
As of December 31, 1998, there were outstanding options to purchase an
aggregate of 641,343 shares of our common stock, 108,750 of which were
exercisable at December 31, 1998, at a weighted average exercise price of $3.00
per share, and we had an additional 291,990 shares of our common stock available
for future grant under the stock option plan. The holders of options which are
presently exercisable to purchase a total of 108,750 shares are subject to
lock-up agreements, which restrict the holders' ability to sell or otherwise
dispose of our common stock acquired upon the exercise of such options. See
"Management--Stock Option Plan."
Following the closing of this offering, we intend to file a registration
statement on Form S-8 under the Securities Act covering shares of our common
stock subject to outstanding options under the stock option plan and 291,990
shares of our common stock reserved for issuance under the stock option plan.
Based on the number of shares subject to outstanding options at December 31,
1998 and currently reserved for issuance under such plan, such registration
statement would cover approximately 933,333 shares issuable on exercise of the
options of which 108,750 options have vested as of such date.
As of December 31, 1998, there were outstanding warrants to purchase an
aggregate of 311,819 shares of our common stock, all of which are currently
exercisable, at an exercise price of $10.65 per share. The holders of all of
these warrants are subject to lock-up agreements that restrict the holders'
ability to sell or otherwise dispose of our common stock acquired upon the
exercise of such warrants for 180 days from the date of this prospectus.
LOCK-UP AGREEMENTS
Holders of approximately 14.3 million shares of our common stock, including
all of our directors and executive officers, have entered into lock-up
agreements under which, without the prior written consent of Gerard Klauer
Mattison & Co., Inc. on behalf of the underwriters and some other permitted
transfers, they have agreed not to offer, sell or otherwise dispose of any such
shares of our
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common stock, any options or warrants to acquire shares of our common stock or
any securities convertible into shares of our common stock, or any shares of our
common stock issuable upon exercise or conversion of such securities, owned by
them for a period of 180 days after the date of this prospectus.
Beginning 180 days after the date of this prospectus, approximately 15.6
million shares will be eligible for sale in the public market, subject to some
timing, manner of sale and volume limitations pursuant to Rule 144. Gerard
Klauer Mattison & Co., Inc. may, in its sole discretion and at any time without
notice, release all or any portion of the securities subject to such lock-up
agreements. Gerard Klauer Mattison & Co., Inc. currently has no plans to release
any portion of the securities subject to such lock-up agreements. WorldGate has
agreed that it will not, directly or indirectly, without the prior written
consent of Gerard Klauer Mattison & Co., Inc., contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option right or warrant to purchase, or otherwise transfer or dispose of any
shares of common stock, or any securities convertible into or exchangeable for
common stock, for a period of 180 days from the date of this prospectus, except
that WorldGate may grant additional options under the stock option plan or issue
shares of common stock under outstanding options, warrants and convertible
securities.
REGISTRATION RIGHTS
Some holders of shares of common stock outstanding prior to the closing of
our initial public offering, including Messrs. Krisbergh, Wachob, Dill,
Augenbraun, Lee, Gort, Mondics, and Gerry and Citicorp, as well as some holders
of warrants, are parties to registration rights agreements with us. These
registration rights agreements, which relate to approximately 13.8 million
shares of common stock, assuming the exercise of all warrants and conversion of
all preferred stock, provide for "piggyback" and demand registration rights.
Generally, a "piggyback" registration right allows holders to include their
shares of common stock in registration statements initiated by WorldGate or
other stockholders and a "demand" registration right allows holders to require
WorldGate to file a registration statement to register their shares of common
stock. Some holders of common stock are entitled to unlimited piggyback
registration rights in most registrations by WorldGate of its securities,
provided that the number of shares of common stock being registered may be cut
back by WorldGate's underwriters in such offerings. These holders have waived
their piggyback registration rights with respect to this offering. Additionally,
holders of at least 30% of the common stock entitled to registration rights may
request, on not more that two occasions, that WorldGate use its best efforts to
file a registration statement covering at least 20% of the common stock,
provided that no demand right may be exercised during any period beginning on
the date WorldGate files a registration statement and ending on the earlier of
120 days after the registration statement is declared effective or 180 days
after the filing date of the registration statement. WorldGate will have the
right to delay demand registrations under some circumstances for up to 120 days.
Finally, subject to some limitations, some holders of common stock have two
demand registration rights on Form S-3 at any time WorldGate is eligible to use
Form S-3. These piggyback and demand registration rights may be assigned to any
transferee who acquires at least 20% of the common stock of some holders. By
exercising these registration rights, these holders could cause a significant
number of shares to be registered and sold in the public market. These sales may
have an adverse effect on the market price for the common stock and could impair
WorldGate's ability to raise capital through an offering of its equity
securities.
In addition to the above registration rights, WorldGate has agreed to file a
shelf registration statement under the Securities Act for all of the shares of
common stock issuable upon exercise of warrants held by holders of WorldGate's
face-value $6.0 million discounted notes issued in March 1999. Assuming an
initial public offering price of $13.00, the holders of these warrants may
purchase up to 420,738 shares of common stock. WorldGate has agreed to file this
registration statement on the first business day after the 150(th) day
immediately following the closing of this offering and to use its best efforts
to cause the registration statement to be declared effective as promptly as
possible. The holders of the piggyback registration rights described above will
have the right to request that their shares be included in that shelf
registration statement.
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UNDERWRITING
Under the terms and subject to the conditions contained in an underwriting
agreement dated the date of this prospectus, the underwriters named below, for
whom Gerard Klauer Mattison & Co., Inc., Jefferies & Company, Inc. and Janney
Montgomery Scott Inc. are acting as representatives, have severally, but not
jointly, agreed to purchase from us the following respective number of shares of
common stock:
<TABLE>
<CAPTION>
UNDERWRITER NUMBER OF SHARES
- --------------------------------------------------------------------------- -----------------
<S> <C>
Gerard Klauer Mattison & Co., Inc..........................................
Jefferies & Company, Inc...................................................
Janney Montgomery Scott Inc................................................
-----------------
4,500,000
-----------------
-----------------
</TABLE>
The underwriting agreement provides that the obligations of the underwriters
are subject to some conditions precedent, and that the underwriters will be
obligated to purchase all of the shares of common stock offered in this
prospectus (other than those shares covered by the over-allotment option
described below) if any are taken. The underwriting agreement provides that in
the event of a default by an underwriter, in some circumstances the purchase
commitments of non-defaulting underwriters may be increased.
The underwriters propose to offer the shares of common stock to the public
initially at the public offering price set forth on the cover page of this
prospectus and to some dealers at a price that represents a concession not in
excess of $ per share. After the initial offering of the shares of common
stock, the offering price and concession and discount to dealers may be changed
by the representatives of the underwriters.
WorldGate has granted to the underwriters an option exercisable by the
representatives of the underwriters, expiring at the close of business on the
30(th) day after the date of this prospectus, to purchase up to 675,000
additional shares of common stock at the offering price, less underwriting
discounts, all as set forth on the cover page of this prospectus. This option
may be exercised only to cover over-allotments in the sale of the shares of
common stock. To the extent that the option is exercised, each underwriter will
become obligated, subject to some conditions, to purchase a number of additional
shares of the common stock proportionate to each underwriter's initial amount
reflected in the foregoing table.
The underwriters have informed WorldGate that they do not intend sales to
discretionary accounts to exceed five percent of the total number of shares of
common stock offered by them.
At the request of WorldGate, the underwriters have reserved up to 300,000
shares of common stock offered hereby for sale at the initial public offering
price to employees, officers and directors of WorldGate and to other persons
designated by WorldGate. The number of shares available for sale to the general
public will be reduced to the extent that these persons purchase the reserved
shares. The
59
<PAGE>
underwriters will offer any reserved share not so purchased to the general
public on the same basis as the other shares of common stock offered hereby.
The following table summarizes the compensation to be paid to the
underwriters by WorldGate and the expenses payable by WorldGate.
<TABLE>
<CAPTION>
TOTAL
------------------------------
WITHOUT WITH
PER SHARE OVER-ALLOTMENT OVER-ALLOTMENT
----------- -------------- --------------
<S> <C> <C> <C>
Underwriting discounts paid by WorldGate...............................
Expenses payable by WorldGate..........................................
</TABLE>
Each of WorldGate and some of its directors, officers and stockholders have
agreed that they will not offer, sell, contract to sell, announce their
intention to sell, pledge or otherwise dispose of, directly or indirectly, any
shares of common stock or securities convertible into or exchangeable or
exercisable for any shares of common stock, without the prior written consent of
the representatives of the underwriters and other permitted transfers for a
period of 180 days after the date of this prospectus.
The representatives of the underwriters on behalf of the underwriters may
engage in over-allotment, stabilizing transactions, syndicate covering
transactions, penalty bids and "passive" market making in accordance with
Regulation M under the Securities Exchange Act of 1934. Over-allotment involves
syndicate sales in excess of the offering size, which creates a syndicate short
position. Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified maximum.
Syndicate covering transactions involve purchases of the shares of common stock
in the open market after the distribution has been completed in order to cover
syndicate short positions. Penalty bids permit the representatives of the
underwriters to reclaim a selling concession from a syndicate member when the
shares of common stock originally sold by these syndicate members are purchased
in a syndicate covering transaction to cover syndicate short positions. In
"passive" market making, market makers in the securities offered hereby who are
underwriters or prospective underwriters may, subject to some limitations, make
bids for or purchases of such securities until the time, if any, at which a
stabilizing bid is made. These stabilizing transactions, syndicate covering
transactions and penalty bids may cause the price of the common stock to be
higher than it would otherwise be in the absence of these transactions. These
transactions may be effected on the Nasdaq National Market or otherwise and, if
commenced, may be discontinued at any time.
WorldGate has agreed to indemnify the underwriters against some liabilities,
including civil liabilities under the Securities Act.
PRICING OF THE OFFERING
Prior to this offering, there has been no public market for the common
stock. The initial public offering price will be determined by negotiations
between WorldGate and the representatives of the underwriters. Among the factors
to be considered in determining the initial public offering price will be the
future prospects of WorldGate and its industry in general, sales, losses and
some other financial and operating information of WorldGate in recent periods,
and the price-sales ratios, market prices of securities and some financial and
operating information of companies engaged in activities similar to those of
WorldGate. The estimated initial public offering price set forth on the cover
page of this prospectus is subject to change as a result of market conditions
and other factors.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered hereby
will be passed upon for WorldGate by Drinker Biddle & Reath LLP, Philadelphia,
Pennsylvania. Certain legal matters in
60
<PAGE>
connection with this offering are being passed upon for the underwriters by Hale
and Dorr LLP, Boston, Massachusetts.
EXPERTS
The balance sheets as of December 31, 1997 and 1998 and the statements of
operations, stockholders' deficit and redeemable preferred stock and cash flows
for each of the years ended December 31, 1996, 1997 and 1998 included in this
prospectus and the registration statement of which this prospectus is part, have
been included herein in reliance upon the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
ADDITIONAL INFORMATION
WorldGate has filed with the SEC a Registration Statement on Form S-1 under
the Securities Act with respect to the shares of common stock offered hereby. As
permitted by the rules and regulations of the SEC, this prospectus, which is a
part of the registration statement, omits some information contained in the
registration statement. For further information with respect to WorldGate and
the common stock offered hereby, please reference the registration statement,
including its exhibits and schedules. Statements contained in this prospectus
regarding the contents of any agreement or other document filed with the SEC as
an exhibit to the registration statement are not necessarily complete, and in
each instance reference is made to the copy of such agreement filed as an
exhibit to the registration statement, each such statement being qualified in
all respects by such reference. A copy of the registration statement, including
the exhibits and schedules thereto, may be inspected without charge at the
public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, DC 20549, and copies of all or any part thereof may be obtained from
such office upon payment of the prescribed fees. In addition, the Commission
maintains a Web site at http://www.sec.gov that contains reports, proxy
statements, information statements and other information regarding WorldGate.
61
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----------
<S> <C>
Report of Independent Accountants..................................................................... F-2
Balance Sheets as of December 31, 1997 and 1998....................................................... F-3
Statements of Operations for the years ended December 31, 1996, 1997 and 1998......................... F-4
Statements of Stockholders' Deficit and Redeemable Preferred Stock for the years ended December 31,
1996, 1997 and 1998................................................................................. F-5
Statements of Cash Flows for the years ended December 31, 1996, 1997 and 1998......................... F-6
Notes to Financial Statements......................................................................... F-7-F-20
</TABLE>
F-1
<PAGE>
[THIS IS THE REPORT WHICH WILL BE ISSUED UPON THE EFFECTIVENESS OF THE STOCK
SPLIT AS DESCRIBED IN NOTE 10.]
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and Stockholders of
WorldGate Communications, Inc.:
In our opinion, the accompanying balance sheets and the related statements of
operations, stockholders' deficit and redeemable preferred stock and of cash
flows present fairly, in all material respects, the financial position of
WorldGate Communications, Inc. at December 31, 1997 and 1998, and the results of
its operations and its cash flows for each of the three years in the period
ended December 31, 1998 in conformity with generally accepted accounting
principles. These financial statements are the responsibility of the Company's
management; our responsibility is to express an opinion on these financial
statements based on our audits. We conducted our audits of these statements in
accordance with generally accepted auditing standards which require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for the opinion expressed
above.
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 8, 1999, except as to the
information in Note 10, for which the date
is , 1999
F-2
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------------
<S> <C> <C> <C>
PRO FORMA
1997 1998 1998
---------- ----------- -----------
ASSETS
Current assets:
Cash and cash equivalents................................................... $4,879,560 $ 127,587 $ 127,587
Restricted cash............................................................. 240,000 240,000
Short-term investments...................................................... 12,438,365
Accounts receivable, trade.................................................. 105,865 572,120 572,120
Inventory................................................................... 619,905 2,736,512 2,736,512
Prepaid and other assets.................................................... 75,968 171,624 171,624
---------- ----------- -----------
Total current assets.................................................... 18,119,663 3,847,843 3,847,843
---------- ----------- -----------
Property and equipment, at cost............................................... 270,862 780,257 780,257
Less: accumulated depreciation and amortization............................. (22,296) (136,866) (136,866)
---------- ----------- -----------
Property and equipment, net............................................. 248,566 643,391 643,391
Deposits and other............................................................ 43,862 1,129,461 1,129,461
---------- ----------- -----------
Total assets............................................................ $18,412,091 $ 5,620,695 $ 5,620,695
---------- ----------- -----------
---------- ----------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Current portion, notes payable.............................................. $ 182,445 $ 515,798 $ 515,798
Current portion, capital lease.............................................. 3,788 4,210 4,210
Accounts payable............................................................ 647,795 5,166,141 5,166,141
Accrued expenses............................................................ 459,484 128,466 128,466
Accrued compensation and benefits........................................... 644,216 1,282,456 1,282,456
---------- ----------- -----------
Total current liabilities............................................... 1,937,728 7,097,071 7,097,071
Notes payable............................................................... 387,806 595,559 595,559
Capital leases.............................................................. 16,526 11,735 11,735
---------- ----------- -----------
Total liabilities....................................................... 2,342,060 7,704,365 7,704,365
---------- ----------- -----------
Commitments and contingent liabilities
Series A Convertible Mandatory Redeemable Preferred Stock, $.01 par value,
2,752,111 shares authorized and outstanding................................. 14,315,448 16,578,165
Series B Convertible Mandatory Redeemable Preferred Stock, $.01 par value,
4,041,641 and 3,270,760 shares authorized, 2,783,031 and 2,803,031
outstanding at December 31, 1997 and 1998................................... 20,050,950 23,568,947
Series C Convertible Mandatory Redeemable Preferred Stock, $.01 par value,
3,181,819 shares authorized, 832,277 outstanding at December 31, 1998....... 9,128,995
Warrant for Series B Convertible Mandatory Redeemable Preferred Stock......... 880,582 880,582
Stockholders' equity (deficit):
Class A common stock, $0.01 par value; 50,000,000 shares authorized, no
shares issued at December 31 1997 and 1998. (15,193,855 shares issued Pro
Forma at December 31, 1998)............................................... 151,939
Class B common stock, $0.01 par value; 27,608,000 shares authorized,
9,100,801 shares issued and outstanding at December 31, 1997 and 1998 (no
shares issued Pro Forma at December 31, 1998)............................. 91,008 91,008
Additional paid-in capital.................................................. 49,215,176
Warrant for Class A Common Stock............................................ 880,582
Accumulated deficit......................................................... (19,165,931) (51,876,639) (51,876,639)
Unearned stock-based compensation........................................... (102,026) (454,728) (454,728)
---------- ----------- -----------
Total stockholders' equity (deficit).................................... (19,176,949) (52,240,359) (2,083,670)
---------- ----------- -----------
Total liabilities and stockholders' equity (deficit).................... $18,412,091 $ 5,620,695 $ 5,620,695
---------- ----------- -----------
---------- ----------- -----------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------
<S> <C> <C> <C>
1996 1997 1998
------------- -------------- --------------
Revenues.......................................................... $ 140,865 $ 1,022,162
------------- -------------- --------------
Costs and expenses:
Cost of revenues................................................ -- 1,529,917 9,918,917
Engineering and development..................................... $ 1,408,441 6,980,680 9,684,448
Sales and marketing............................................. 427,631 3,622,590 5,156,717
General and administrative...................................... 1,092,502 2,432,363 3,485,442
Depreciation and amortization................................... -- 22,296 119,144
------------- -------------- --------------
Total costs and expenses.................................... 2,928,574 14,587,846 28,364,668
------------- -------------- --------------
Loss from operations.............................................. (2,928,574) (14,446,981) (27,342,506)
Interest and other income, net.................................... 8,154 422,743 422,807
Interest expense.................................................. (2,081) (17,110) (100,562)
------------- -------------- --------------
Net loss.................................................... (2,922,501) (14,041,348) (27,020,261)
Accretion on preferred stock...................................... (75,880) (2,435,470) (6,145,105)
------------- -------------- --------------
Net loss available to common stockholders................... $ (2,998,381) $ (16,476,818) $ (33,165,366)
------------- -------------- --------------
------------- -------------- --------------
Pro forma net loss per common share............................... $ (2.24)
--------------
--------------
Pro forma weighted average common shares outstanding.............. 14,785,714
--------------
--------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
STATEMENTS OF STOCKHOLDERS' DEFICIT AND REDEEMABLE PREFERRED STOCK
<TABLE>
<CAPTION>
REDEEMABLE PREFERRED STOCK
--------------------------------------------------------------------------
SERIES A SERIES B SERIES C
------------------------ ------------------------ ----------------------
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT
---------- ------------ ---------- ------------ --------- -----------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1995.......................
Cash capital contributions.........................
Capital contributed for services...................
Merger of WorldGate Communications, Inc............
Sale of Preferred Stock, net of expenses........... 1,933,000 $ 8,495,535
Accretion on Preferred Stock....................... 75,880
Net loss for the year..............................
---------- ------------ ---------- ------------ --------- -----------
BALANCE AT DECEMBER 31, 1996....................... 1,933,000 8,571,415
Warrants issued for services provided..............
Deferred compensation..............................
Amortization of deferred compensation..............
Non-employee stock option compensation expense.....
Sale of Preferred Stock, net of expenses........... 819,111 3,599,993 2,783,031 $ 19,759,520
Accretion on Preferred Stock....................... 2,144,040 291,430
Net loss for the year..............................
---------- ------------ ---------- ------------ --------- -----------
BALANCE AT DECEMBER 31, 1997....................... 2,752,111 14,315,448 2,783,031 20,050,950
Deferred compensation..............................
Amortization of deferred compensation..............
Sale of Preferred Stock, net of expenses........... 20,000 142,000 832,277 $ 8,622,604
Accretion on Preferred Stock....................... 2,262,717 3,375,997 506,391
Net loss for the year..............................
---------- ------------ ---------- ------------ --------- -----------
BALANCE AT DECEMBER 31, 1998....................... 2,752,111 $ 16,578,165 2,803,031 $ 23,568,947 832,277 $ 9,128,995
---------- ------------ ---------- ------------ --------- -----------
---------- ------------ ---------- ------------ --------- -----------
<CAPTION>
STOCKHOLDERS' DEFICIT
-----------------------------------------------------------------
WARRANT CLASS B COMMON STOCK
FOR ------------------------------------
REDEEMABLE WORLDGATE, ADDITIONAL
PREFERRED LLC CAPITAL PAID-IN ACCUMULATED
STOCK CONTRIBUTED SHARES AMOUNT CAPITAL DEFICIT
----------- ------------ ----------- --------- ------------ -------------
<S> <C> <C>
BALANCE AT DECEMBER 31, 1995....................... $ 180,950 $ (149,325)
Cash capital contributions......................... 873,498
Capital contributed for services................... 816,230
Merger of WorldGate Communications, Inc............ (1,870,678) 9,100,801 $ 91,008 $ 1,779,670
Sale of Preferred Stock, net of expenses........... (174,169)
Accretion on Preferred Stock....................... (75,880)
Net loss for the year.............................. (2,922,501)
----------- ------------ ----------- --------- ------------ -------------
BALANCE AT DECEMBER 31, 1996....................... 9,100,801 91,008 1,529,621 (3,071,826)
Warrants issued for services provided.............. $ 880,582
Deferred compensation.............................. 108,875
Amortization of deferred compensation..............
Non-employee stock option compensation expense..... 63,000
Sale of Preferred Stock, net of expenses........... (1,318,783)
Accretion on Preferred Stock....................... (382,713) (2,052,757)
Net loss for the year.............................. (14,041,348)
----------- ------------ ----------- --------- ------------ -------------
BALANCE AT DECEMBER 31, 1997....................... 880,582 9,100,801 91,008 (19,165,931)
Deferred compensation.............................. 454,658
Amortization of deferred compensation..............
Sale of Preferred Stock, net of expenses...........
Accretion on Preferred Stock....................... (454,658) (5,690,447)
Net loss for the year.............................. (27,020,261)
----------- ------------ ----------- --------- ------------ -------------
BALANCE AT DECEMBER 31, 1998....................... $ 880,582 9,100,801 $ 91,008 $ (51,876,639)
----------- ------------ ----------- --------- ------------ -------------
----------- ------------ ----------- --------- ------------ -------------
<CAPTION>
UNEARNED TOTAL
STOCK-BASED STOCKHOLDERS
COMPENSATION DEFICIT
------------- -------------
BALANCE AT DECEMBER 31, 1995....................... $ 31,625
Cash capital contributions......................... 873,498
Capital contributed for services................... 816,230
Merger of WorldGate Communications, Inc............
Sale of Preferred Stock, net of expenses........... (174,169)
Accretion on Preferred Stock....................... (75,880)
Net loss for the year.............................. (2,922,501)
------------- -------------
BALANCE AT DECEMBER 31, 1996....................... (1,451,197)
Warrants issued for services provided..............
Deferred compensation.............................. $ (108,875)
Amortization of deferred compensation.............. 6,849 6,849
Non-employee stock option compensation expense..... 63,000
Sale of Preferred Stock, net of expenses........... (1,318,783)
Accretion on Preferred Stock....................... (2,435,470)
Net loss for the year.............................. (14,041,348)
------------- -------------
BALANCE AT DECEMBER 31, 1997....................... (102,026) (19,176,949)
Deferred compensation.............................. (454,658)
Amortization of deferred compensation.............. 101,956 101,956
Sale of Preferred Stock, net of expenses...........
Accretion on Preferred Stock....................... (6,145,105)
Net loss for the year.............................. (27,020,261)
------------- -------------
BALANCE AT DECEMBER 31, 1998....................... $ (454,728) $ (52,240,359)
------------- -------------
------------- -------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------
<S> <C> <C> <C>
1996 1997 1998
------------- -------------- --------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss........................................................ $ (2,922,501) $ (14,041,348) $ (27,020,261)
Adjustments to reconcile net loss to cash used in operating
activities:
Depreciation and amortization............................... -- 22,296 119,144
Amortization of deferred compensation....................... -- 6,849 101,956
Non-employee stock option compensation expense.............. -- 63,000 --
Stock and warrants issued for services provided............. 816,230 880,582 --
Loss on sale of equipment................................... -- -- 15,425
Changes in operating assets and liabilities:
Accounts receivable....................................... -- (105,865) (466,255)
Inventories............................................... -- (619,905) (2,116,607)
Prepaid and other assets.................................. (9,496) (110,334) (1,181,255)
Accounts payable.......................................... 333,112 314,683 4,518,346
Accrued expenses.......................................... 129,805 329,679 (331,018)
Accrued compensation and benefits......................... -- 644,216 638,240
------------- -------------- --------------
Net cash used in operating activities................... (1,652,850) (12,616,147) (25,722,285)
------------- -------------- --------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures............................................ -- (248,817) (533,394)
Purchases of short-term investments............................. (5,881,025) (16,443,761) (1,947,716)
Proceeds from maturities of short-term investments.............. -- 9,900,000 14,386,081
Proceeds from sale of equipment................................. -- -- 4,000
Restricted cash................................................. -- -- (240,000)
------------- -------------- --------------
Net cash (used in) provided by investing activities..... (5,881,025) (6,792,578) 11,668,971
------------- -------------- --------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of preferred stock....................... 8,495,535 23,359,513 9,297,027
Stock issuance costs............................................ (174,169) (1,318,783) (532,423)
Capital contributions........................................... 873,498 -- --
Proceeds from notes payable--shareholder........................ 350,000 -- --
Repayment of notes payable--shareholder......................... (350,000) -- --
Proceeds from notes payable..................................... -- 621,161 937,790
Repayments of capital leases and notes payable.................. -- (66,220) (401,053)
------------- -------------- --------------
Net cash provided by financing activities............... 9,194,864 22,595,671 9,301,341
------------- -------------- --------------
Net increase (decrease) in cash and cash equivalents.... 1,660,989 3,186,946 (4,751,973)
Cash and cash equivalents, beginning of period.................... 31,625 1,692,614 4,879,560
------------- -------------- --------------
Cash and cash equivalents, end of period.......................... $ 1,692,614 $ 4,879,560 $ 127,587
------------- -------------- --------------
------------- -------------- --------------
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest.......................................... $ 2,081 $ 16,351 $ 96,062
------------- -------------- --------------
------------- -------------- --------------
NONCASH INVESTING AND FINANCING ACTIVITIES:
Accretion on preferred stock.................................... $ 75,880 $ 2,435,470 $ 6,145,105
Issuance of warrant for services provided....................... -- 880,582 --
Issuance of stock for services provided......................... 816,230 -- --
Acquisition of property under capital lease..................... -- 22,045 --
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-6
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION
WorldGate Communications, Inc. ("WorldGate" or the "Company") provides a new
television based Internet service that delivers the Internet through cable
television systems. The Company was originally organized as a Limited Liability
Company (the "LLC") on March 21, 1995. On December 6, 1996, pursuant to a plan
of merger between WorldGate and the LLC, which was accounted for as a
reorganization of entities under common control, all assets and liabilities of
the LLC were transferred to the Company at book value. As part of the merger,
the Company allocated 9,100,801 shares of common stock to the members of the LLC
and certain key employees who had been granted profit interests. As a result of
the conversion of such profit interests to equity, the Company recognized
$816,230 in compensation expense. From inception through July 1, 1998, the
Company was a development stage enterprise as defined in Statement of Financial
Accounting Standards No. 7, "Accounting and Reporting by Development Stage
Enterprises." The Company operates in a single segment.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The Company prepares its financial statements on the accrual basis of
accounting. The accompanying financial statements have been prepared assuming
that the Company will continue as a going concern, which contemplates the
realization of assets and the satisfaction of liabilities in the normal course
of business. As shown in the financial statements during the year ended December
31, 1998, the Company incurred a loss of $27,020,261 and has an accumulated
deficit of $51,876,639 and cash balance of $367,587. The Company has raised
approximately $7.6 million in preferred stock and approximately $5,470,000 in
notes payable with detachable warrants since December 31, 1998 (See Note 10), is
actively pursuing additional debt or equity financing and has received
non-binding commitments from current and new investors and its chairman to
provide additional funding if and when necessary. If appropriate financing is
not obtained, either privately or through this public offering, the Company has
a plan to modify its operations to continue its existence through 1999.
UNAUDITED PRO FORMA BALANCE SHEET
The board of directors has authorized the Company to file a Registration
Statement with the Securities and Exchange Commission permitting the Company to
sell shares of Common Stock in an initial public offering ("IPO"). If the IPO is
consummated as presently anticipated, all shares of the Series C Preferred and
Series B Convertible Preferred will automatically convert into an equal number
of Class A Common Stock and Class B Common Shares, respectively, and all shares
of Series A Convertible Preferred Stock will automatically convert into two
shares of Class B Common Stock. All of the outstanding Class B Common Stock will
then convert into Class A Common Stock. The unaudited pro forma balance sheet
reflects the subsequent conversion of Series A, Series B and Series C Preferred
shares into Class A Common Stock as if such conversion had occurred as of
December 31, 1998. The unaudited pro forma balance sheet does not include the
sale of 697,437 shares of Series C Preferred Stock ("Series C Preferred")
(464,958 shares of Class A Common Stock post-split) in January and February 1999
for approximately $7.6 million and the proceeds from the issuance of notes
payable of approximately $5,470,000 with detachable warrants in March 1999 (see
Note 10).
F-7
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with an original
maturity of three months or less to be cash equivalents.
RESTRICTED CASH
The Company pledged $240,000 as collateral for its corporate credit card
obligations. The amount has been classified as restricted cash on the balance
sheet as of December 31, 1998.
SHORT-TERM INVESTMENTS
The Company considers all investments to be short-term in nature and intends
to hold such investments until maturity. Investments are stated at cost, which
approximates fair market value.
INVENTORIES
Inventories are stated at the lower of cost or market on an average cost
basis.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Depreciation is recorded on the
straight-line method over the estimated useful lives of the related assets. The
Company depreciates furniture and fixtures over seven years; office equipment
over five years; and computer equipment over three years. Leasehold improvements
are capitalized and amortized on the straight-line basis over the shorter of
their useful life or the term of the lease. Maintenance and repairs are expensed
as incurred. When the property or equipment is retired or otherwise disposed of,
related costs and accumulated depreciation are removed from the accounts and any
resulting gain or loss is included in operations.
The Company reviews assets for impairment whenever events or changes in
circumstances indicate the carrying value of the asset may not be recoverable. A
determination of impairment (if any) is made based on estimates of undiscounted
future cash flows. For the years ended December 31, 1997 and 1998, there have
been no asset impairments.
REVENUE RECOGNITION
The Company derives its revenue principally from the sale of headend units
and other equipment to cable operators. Revenue is recognized by the Company
when products are shipped and accepted by the customer.
COST OF REVENUES
Cost of revenues include costs related to the production of hardware,
installation and training as well as costs incurred for the assembly,
installation and testing of trial systems.
ENGINEERING AND DEVELOPMENT COSTS
Engineering and development costs are expensed as incurred.
F-8
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
ADVERTISING COSTS
Advertising costs, included in sales and marketing expense, are expensed in
the period incurred. Advertising expenses were $0, $274,040 and $392,513 for the
years ended December 31, 1996, 1997 and 1998, respectively.
INCOME TAXES
From inception through December 5, 1996, the Company was an LLC under the
Internal Revenue Code, whereby taxes were the responsibility of the individual
members. Accordingly, there was no provision for income taxes in the Company's
statement of operations. Accumulated losses through December 5, 1996 totaled
approximately $2,180,000. The Company began operations as a C Corporation on
December 6, 1996. The Company has incurred losses from operations in the period
from December 6, 1996 through December 31, 1996 and for the years ended December
31, 1997 and 1998; therefore, there is no provision for income taxes in the
Company's statement of operations.
Provision for income taxes is determined based on the asset and liability
method. The asset and liability method provides that deferred tax balances are
recorded based on the difference between the tax bases of assets and liabilities
and their carrying amounts for financial reporting purposes. Deferred tax
liabilities or assets at the end of each period are determined using the tax
rate enacted under the current tax law. The measurement of net deferred tax
assets is reduced by the amount of any tax benefits that, based on available
evidence, are not expected to be realized, and a corresponding valuation
allowance is established.
CONCENTRATION OF CREDIT RISK
Financial instruments which potentially subject the Company to a
concentration of credit risk principally consist of cash and cash equivalents
and short-term investments. The Company has its cash and cash equivalents placed
with high quality, creditworthy financial institutions. The balances at such
institutions at December 31, 1998 and periodically throughout the year are in
excess of federally insured limits. As part of its cash management process, the
Company performs periodic evaluation of the relative credit standing of these
institutions. At December 31, 1997, short-term investments were composed of
mortgage-backed securities issued by U.S. government agencies.
Accounts receivable, trade consists of receivables from cable operators. The
Company performs ongoing credit evaluations of its customers' financial
condition and generally requires no collateral.
F-9
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Accounts receivable from major customers as a percentage of total accounts
receivable were as follows:
<TABLE>
<CAPTION>
CUSTOMER 1997 1998
- ------------------------------------------------------------------------------- ----- -----
<S> <C> <C>
A.......................................................................... -- 31%
B.......................................................................... -- 17%
C.......................................................................... -- 12%
D.......................................................................... 10% 10%
E.......................................................................... -- 10%
F.......................................................................... -- 10%
G.......................................................................... 47% --
H.......................................................................... 43% 8%
--
---
100% 98%
--
--
---
---
</TABLE>
Sales to major customers, as a percentage of revenues, were as follows for
each of the years ended December 31:
<TABLE>
<CAPTION>
CUSTOMER 1996 1997 1998
- ---------------------------------------------------------------------- ----- ----- -----
<S> <C> <C> <C>
A................................................................. -- 32% 44%
B................................................................. -- -- 10%
C................................................................. -- 34% --
D................................................................. -- 34% --
-- --
---
100% 54%
-- --
-- --
---
---
</TABLE>
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's financial instruments consist primarily of cash and cash
equivalents, short-term investments, accounts receivable, accounts payable,
debt, capital lease obligations and preferred stock. The book value of cash and
cash equivalents, accounts receivable, and accounts payable is considered to be
representative of their fair value because of their short maturities. The
carrying value of short-term investments approximates their fair value.
Management believes that determining a fair value for the Company's convertible
mandatory redeemable preferred stock is impractical due to the closely-held
nature of these instruments.
VULNERABILITY DUE TO CERTAIN CONCENTRATIONS
The Company's growth and future success is substantially dependent upon its
ability to convince cable operators to offer the WORLDGATE Service to their
subscribers. Although a number of large cable operators have begun testing the
WORLDGATE Service, only a limited number have entered into written agreements
with the Company obligating them to offer the service to their subscribers.
The Company is highly reliant on two suppliers of cable boxes. At present
the agreements with these manufacturers do not require them to install the
WORLDGATE technology in their current or next generation cable boxes or prohibit
them from establishing relationships with the Company's
F-10
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
competitors. The Company is working with both manufacturers to develop an
integrated product. These manufacturers have agreed to cooperate with the
Company to certify and market such products.
The Company continues to seek additional capital resources to further the
development of its service, to expand and improve its product line and to fund
its operations.
USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
STOCK-BASED COMPENSATION
Stock-based compensation is recognized using the intrinsic value method
prescribed in Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees", and related interpretations. Accordingly, compensation
expense for stock options is measured as the excess, if any, of the fair value
of the Company's stock at the date of grant over the amount an individual must
pay to acquire the stock and amortized over the vesting period. All
transactions, with other than employees, in which goods and services are the
consideration received for the issuance of equity instruments, such as stock
options, are expensed based on the fair value of the consideration received or
the fair value of the equity instruments issued, whichever is more reliably
measured. The Company has adopted the disclosure only provisions of Statement of
Accounting Standards No. 123, "Accounting for Stock-Based Compensations" (SFAS
123) (see Note 7).
PRO FORMA NET LOSS PER COMMON SHARE
Pro forma net loss per common share for the year ended December 31, 1998 is
computed using the weighted average number of shares of Class B Common Stock
outstanding during the period and gives effect to the subsequent conversion of
Series A, Series B, and Series C Preferred shares into common stock upon
effectiveness of the IPO as if such conversion occurred on January 1, 1998 or at
the date of original issuance, if later. The resulting pro forma adjustment
includes an increase in the weighted average shares of 5,684,913 used to compute
basic and diluted net loss per common share for the year ended December 31,
1998. The calculation of diluted net loss per common share excludes potential
common shares as the effect would be antidilutive. Potential common shares are
composed of shares of common stock issuable upon the exercise of stock options
and warrants.
HISTORICAL NET LOSS PER SHARE
The Company computes net loss per common share in accordance with SFAS No.
128, "Earnings per Share" and SEC Staff Accounting Bulletin No. 98 ("SAB 98").
Under the provisions of SFAS No. 128 and SAB 98, basic and diluted net loss per
common share is computed by dividing the net loss available to common
stockholders for the period by the weighted average number of shares of common
stock outstanding during the period. The calculation of diluted net loss per
common share excludes potential common shares if the effect is antidilutive.
Potential common shares are composed of shares of common stock issuable upon the
exercise of stock options and warrants and upon conversion of
F-11
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Series A, Series B, and Series C Preferred Stock. Net loss per common share on a
historical basis is as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------
<S> <C> <C> <C>
1996 1997 1998
------------- -------------- --------------
Net loss available to common stockholders..... $ (2,998,381) $ (16,476,818) $ (33,165,366)
Basic and diluted net loss per common share... $ (0.33) $ (1.81) $ (3.64)
------------- -------------- --------------
------------- -------------- --------------
Weighted average shares outstanding-- basic
and diluted................................. 9,100,801 9,100,801 9,100,801
------------- -------------- --------------
------------- -------------- --------------
</TABLE>
RECENT ACCOUNTING PRONOUNCEMENTS
In April 1998, the American Institute of Certified Public Accountants
(AICPA) issued Statement of Position No. 98-5 (SOP 98-5), "Reporting on the
Costs of Start-Up Activities." SOP 98-5 generally requires costs of start-up
activities to be expensed instead of being capitalized and amortized and is
required to be adopted no later than Janaury 1, 1999. The Company does not
expect the adoption of SOP 98-5 to have a material effect on its results of
operations and financial condition.
In March 1998, the AICPA issued SOP 98-1, "Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use". SOP 98-1 provides,
among other things, guidance for determining whether computer software is for
internal use and when the cost related to such software should be expensed as
incurred or capitalized and amortized. SOP 98-1 is required to be applied
prospectively and adopted no later than January 1, 1999. The Company does not
expect the adoption of SOP 98-1 to have a material effect on its results of
operations, financial position or cash flows.
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income" (SFAS 130), which is effective for years
beginning after December 15, 1997. This statement establishes standards for the
reporting and display of comprehensive income and its components. Comprehensive
income is defined to include all changes in equity during a period except those
resulting from investments by owners and distributions to owners. The Company
adopted SFAS 130 in 1998; however, as of December 31, 1998, there were no
components of comprehensive income for disclosure.
RECLASSIFICATIONS
Certain amounts have been reclassified from previous years to conform with
the 1998 presentation.
F-12
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
3. INVENTORIES
Inventories as of December 31, 1997 and 1998 are summarized as follows:
<TABLE>
<CAPTION>
1997 1998
---------- ------------
<S> <C> <C>
Raw material........................................................ $ 148,629 $ 991,670
Work-in-progress.................................................... 179,205 16,461
Finished goods...................................................... 292,071 1,728,381
---------- ------------
$ 619,905 $ 2,736,512
---------- ------------
---------- ------------
</TABLE>
Customers held $292,071 and $1,264,051 of the Company's finished goods
inventories at December 31, 1997 and 1998, respectively, for use in system
trials.
4. PROPERTY AND EQUIPMENT
Property and equipment consist of the following at December 31, 1997 and
1998:
<TABLE>
<CAPTION>
1997 1998
---------- ----------
<S> <C> <C>
Computer equipment.................................................... $ 50,893 $ 184,502
Office equipment...................................................... 11,299 203,646
Furniture and fixtures................................................ 165,315 323,095
Leasehold improvements................................................ 21,310 46,969
Capital leases:
Equipment........................................................... 22,045 22,045
---------- ----------
270,862 780,257
Less accumulated depreciation and amortization:
Property and equipment.............................................. (18,626) (128,787)
Capital leases...................................................... (3,670) (8,079)
---------- ----------
Property and equipment, net........................................... $ 248,566 $ 643,391
---------- ----------
---------- ----------
</TABLE>
5. FINANCING AGREEMENT
During 1997, the Company entered into a $1,000,000 equipment facility of
which $429,749 remained available at December 31, 1997. During 1998, the amount
of the equipment facility was increased to $2,000,000, of which $419,044
remained available at December 31, 1998. The weighted average interest rate on
the outstanding notes payable borrowings at December 31, 1997 and 1998 was
8.89%.
Notes payable are summarized as follows:
<TABLE>
<CAPTION>
1997 1998
---------- ------------
<S> <C> <C>
Notes payable....................................................... $ 570,251 $ 1,111,357
Less: current maturities............................................ 182,445 515,798
---------- ------------
Total long-term debt............................................ $ 387,806 $ 595,559
---------- ------------
---------- ------------
</TABLE>
F-13
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
5. FINANCING AGREEMENT (CONTINUED)
At December 31, 1998, the installments of the notes payable maturing in each
of the following years were: 1999--$515,798, 2000--$490,521 and 2001--$105,038.
The notes payable are collateralized by certain equipment, furniture and
fixtures.
6. INCOME TAXES
The significant components of deferred tax assets at December 31, 1997 and
1998 are as follows:
<TABLE>
<CAPTION>
1997 1998
------------ -------------
<S> <C> <C>
Federal tax loss carryforward.................................... $ 4,136,503 $ 12,678,426
State tax loss carryforward...................................... 999,000 999,000
Property and equipment........................................... 838,625 1,107,971
Research and experimentation credit.............................. 99,327 173,174
Section 263(A) adjustment........................................ -- 33,819
Officers' compensation........................................... -- 26,891
Compensation on non-qualified stock options...................... -- 58,689
Warrant issuance................................................. 357,428 --
------------ -------------
6,430,883 15,077,970
Less: valuation allowance........................................ (6,430,883) (15,077,970)
------------ -------------
$ -- $ --
------------ -------------
------------ -------------
</TABLE>
A valuation allowance was established against the Company's net deferred tax
asset due to the Company's lack of earnings history and, accordingly, the
uncertainty as to the realizability of the asset.
At December 31, 1998, the Company had a net operating loss carryforward of
approximately $38,288,000 for federal tax purposes, with $735,000 expiring in
2011, $12,008,000 expiring in 2012 and $25,545,000 expiring in 2018 if not
utilized. The net operating loss carryforward for state tax purposes is
approximately $10,000,000, which will expire in 2009. These carryforwards may be
applied as a reduction to future taxable income of the Company, if any. The
state net operating loss carryforwards are limited by state tax law to a maximum
utilization of $1,000,000 per year. The Company also has research and
experimentation credit carryforwards of approximately $173,000, with $11,500
expiring in 2011, $87,500 expiring in 2012 and $74,000 expiring in 2013. The
Company's ability to utilize its net operating loss carryforwards and credit
carryforwards may be subject to annual limitations as a result of prior or
future changes in ownership and state tax law. The IPO as presently contemplated
will cause such a change.
7. STOCKHOLDERS' DEFICIT
COMMON STOCK
On December 6, 1996, the date of the merger of WorldGate and the LLC, the
Company allocated 9,100,801 shares of common stock to the shareholders in the
LLC and certain key employees, who had been granted profit interests. As a
result of the conversion of such profit interests to equity, the Company
recognized $816,230 in compensation expense. The merger was accounted for as a
reorganization of entities under common control.
F-14
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
7. STOCKHOLDERS' DEFICIT (CONTINUED)
On April 27, 1998, the board of directors authorized an amendment to the
Company's Articles of Incorporation creating Class A and Class B Common Stock,
each having 27,608,000 shares authorized. Each outstanding share of common stock
was reclassified as one share of Class B Common Stock. Class A and B Common
Stock have one and five votes per share, respectively.
On July 13, 1998, the board of directors further amended the Articles of
Incorporation to increase the number of authorized shares of Class A Common
Stock to 50,000,000 shares and the number of authorized shares of preferred
stock to 13,500,000 shares.
CONVERTIBLE MANDATORY REDEEMABLE PREFERRED STOCK
The Company has authorized 13,500,000 shares of $0.01 par value preferred
stock of which 2,752,111, 3,270,760 and 3,181,819 shares have been designated as
Series A Convertible Preferred Stock ("Series A Preferred"), Series B
Convertible Preferred Stock ("Series B Preferred") and Series C Convertible
Preferred Stock ("Series C Preferred"), respectively (collectively the
"Preferred Stocks").
In December 1996 the Company sold 1,933,000 shares of Series A Preferred
(2,577,333 shares of Class B Common Stock, post-split) for $4.395 per share for
$8,321,366, net of $174,169 of offering expenses. In 1997, the Company completed
its Series A Preferred sale in which it issued an additional 819,111 shares
(1,092,148 shares of Class B Common Stock, post-split) for $3,400,733, net of
$199,260 of offering expenses.
In December 1997, the Company sold 2,783,031 shares of Series B Preferred
(1,855,354 shares of Class B Common Stock, post-split) at $7.10 per share for
$18,640,017, net of $1,119,503 of offering expenses.
In September through December 1998, the Company sold 832,277 shares of
Series C Preferred (554,851 shares of Class A Common Stock, post-split) for
$11.00 per share for $8,622,604, net of $532,423 of offering expenses. The
Series B and C Preferred provides certain anti-dilutive provisions that may be
triggered by an initial public offering.
All holders of outstanding shares of the Preferred Stocks have the right to
convert their shares into common stock at any time. Each share of Series A
Preferred is initially convertible into two shares of Class B Common Stock and
each share of Series B Preferred and Series C Preferred is initially convertible
into one share of Class B Common Stock and Class A Common Stock, respectively.
Each share of the Preferred Stocks will be automatically converted into shares
of common stock at the then applicable conversion rate and price, upon the
earlier of (1) completion by the Company of a qualified (as defined)
underwritten public offering of common stock or (2) the conversion date selected
by the holders of a majority of the outstanding shares of each Series A, Series
B and Series C Preferred Stock.
The redemption price of the shares corresponds to the original purchase
price of each share plus any declared and unpaid dividends, or if the Company
fails to meet certain financial performance goals, the original purchase price
of each share plus interest at 15% per annum. The Preferred shareholders are
permitted to redeem their shares commencing December 2000 provided that the
Company shall not be required to redeem more than 50% of each of the Preferred
Stocks during the twelve-month period commencing December 2000. The Company is
accreting the mandatory redemption amount, at the rate of 15% compounded per
annum, such that the carrying value of the preferred stock will equate to the
F-15
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
7. STOCKHOLDERS' DEFICIT (CONTINUED)
redemption amount at the time of redemption. The difference between the
redemption amount and the fair value of the preferred stock at the date of issue
is being amortized from the date of issuance assuming the preferred stockholders
redeem 50% of their shares in December 2000 and the balance in December 2001.
For the year ended December 31, 2000, the Company may be required to redeem up
to 1,376,056 Series A Preferred shares for $11,618,988, up to 1,401,516 Series B
Preferred shares for $16,757,459 and up to 416,139 Series C Preferred shares for
$7,662,786. At December 31, 2001, the Company may be required to redeem all the
Series A, Series B and Series C Preferred shares for $23,237,976, $33,514,917
and $15,325,572, respectively.
The holders of the Preferred Stocks have voting rights on a converted basis
equivalent to those of common stockholders on most matters. However, the
approval of a majority of the Series A, Series B and Series C Preferred
stockholders is required for certain transactions. The Series A, Series B and
Series C Preferred stockholders fully participate in any dividends declared by
the board of directors of the Company at the rate of $0.35, $0.57 and $0.88,
respectively, per share per annum. These dividends are non-cumulative. No
dividends have been declared through December 31, 1998.
Upon any liquidation, dissolution, or winding up of the Company, liquidation
proceeds will be distributed: (1) first, on a PARI PASSU basis, to the holders
of Series C Preferred at $11.00 per share plus any unpaid dividends, Series B
Preferred at $7.10 per share plus any unpaid dividends and to the holders of
Series A Preferred at $4.395 per share plus any unpaid dividends, (2) second to
the holders of common stock in an amount equal to $2 million and (3) equally
thereafter. The liquidation value of each of the Preferred Stocks at December
31, 1997 and 1998 is equal to the respective carrying amounts on the balance
sheet.
The agreements with the holders of the Preferred Stocks contain certain
provisions which, among other things, restrict borrowings and changes in capital
structure and ownership. Events of noncompliance under these provisions entitle
the holders of these shares to the right of an immediate voluntary redemption.
In January and February 1999, the Series A, Series B and Series C Preferred
stockholders agreed to waive certain rights under their respective stock
agreements.
WARRANTS
In November 1997, the Company issued a warrant to purchase 394,880 shares of
Series B Preferred (263,253 shares of Class B Common Stock, post-split) at $7.10
per share which expires June 30, 2002 to a strategic investor under the terms of
a master affiliation agreement. As a result of the issuance of the warrant, the
Company recorded approximately $881,000 as marketing expense which was the
estimated fair market value of the warrant at that time.
Also, in connection with the Series B Preferred private placement, the
underwriter received warrants to purchase 60,474 and 12,375 shares of Series B
Preferred (40,316 and 8,250 shares of Class B Common Stock, post-split) at $7.10
per share which expire in November and December 2002, respectively.
STOCK OPTION PLAN
In December 1996, the Company adopted the 1996 Stock Option Plan ("1996
Plan"), as amended. This plan provides for the granting of stock options to
officers, directors, employees and consultants. Grants under this plan may
consist of options intended to qualify as incentive stock options ("ISOs"),
F-16
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
7. STOCKHOLDERS' DEFICIT (CONTINUED)
or nonqualified stock options that are not intended to so qualify ("NQSOs"). The
option price of any ISO will not be less than the fair market value on the date
the option is granted (110% of fair value in certain instances). The option
price of a NQSO may be greater than, equal to, or less than the fair market
value on the date the option is granted. The 1996 Plan authorizes a maximum of
933,333 shares of common stock.
The Plan is administered by a committee of the board of directors. The
committee determines the term of each option, provided, however, that the
exercise period may not exceed ten years from the date of grant, and for ISOs,
in certain instances, may not exceed five years. The options granted under this
plan vest ratably over a four-year period from the date of grant.
Compensation expense of approximately $109,000 and $455,000 is being
recognized, over the four-year vesting period for certain options which were
granted to employees in 1997 and 1998, respectively, at below the estimated fair
market value at the time of grant, to acquire 87,667 and 213,343 shares of
common stock, respectively. Compensation expense of approximately $7,000 and
$102,000 was recognized in 1997 and 1998, respectively. Also, compensation
expense of approximately $63,000 was recognized in 1997 for stock options
granted to non-employees in connection with consulting services provided.
If compensation expense had been determined based on the fair value of the
options at the grant dates for those options for which no compensation expense
has been recognized, consistent with the method of SFAS 123, the Company's net
loss and loss per share would have been:
<TABLE>
<CAPTION>
1997 1998
-------------- --------------
<S> <C> <C> <C>
Net loss available to
common stockholders: As reported................... $ (16,476,818) $ (33,165,366)
Pro forma..................... $ (16,493,691) $ (33,241,555)
Net loss per common share:
basic and diluted: As reported................... $ (1.81) $ (3.64)
Pro forma..................... $ (1.81) $ (3.65)
</TABLE>
Such pro forma disclosures may not be representative of future compensation
expense because options vest over several years and additional grants are made
each year.
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes minimum value option valuation model. The following
weighted-average assumptions were used for grants in 1997 and 1998,
respectively: expected volatility of 0% and 0%; risk-free interest rates of 6.2%
and 5.4%; dividend yield of 0% and 0%; and expected lives of 5 and 5.91 years.
The weighted-average fair value of the options granted during the year was
$0.615 and $3.36 per option at December 31, 1997 and 1998, respectively.
F-17
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
7. STOCKHOLDERS' DEFICIT (CONTINUED)
A summary of the Company's stock plan is presented below:
<TABLE>
<CAPTION>
STOCK WEIGHTED-AVERAGE
OPTIONS EXERCISE PRICE
--------- -----------------
<S> <C> <C>
Outstanding, December 31, 1996................................... -- --
Granted.......................................................... 435,000 $ 2.26
Exercised........................................................ -- --
Cancelled/forfeited.............................................. -- --
---------
Outstanding, December 31, 1997................................... 435,000 2.26
Granted.......................................................... 219,643 4.50
Exercised........................................................ -- --
Cancelled/forfeited.............................................. (13,300) 3.54
---------
Outstanding, December 31, 1998................................... 641,343 $ 3.00
---------
---------
</TABLE>
The following table summarizes information about stock options outstanding
at December 31, 1998:
<TABLE>
<CAPTION>
STOCK OPTIONS
STOCK OPTIONS OUTSTANDING
--------------------------------------- EXERCISABLE
WEIGHTED- -----------------------
AVERAGE WEIGHTED- WEIGHTED-
REMAINING AVERAGE AVERAGE
RANGE OF CONTRACTUAL EXERCISE EXERCISE
EXERCISE PRICES SHARES LIFE (YEARS) PRICE SHARES PRICE
- ------------------------------------------------------ --------- --------------- ----------- ---------- -----------
<S> <C> <C> <C> <C> <C>
$0.75--$1.50.......................................... 87,333 7.5 $ 1.245 21,833 $ 1.245
$1.51--$2.25.......................................... 297,000 7.8 2.22 75,667 2.22
$2.26--$4.50.......................................... 257,010 8.9 4.50 11,250 4.50
--------- ----------- ---------- -----------
641,343 8.1 $ 3.00 108,750 $ 2.25
--------- ----------
--------- ----------
</TABLE>
EMPLOYEE STOCK PURCHASE PLAN
In November 1997, the Company approved and adopted an Employee Stock
Purchase Plan (the "ESPP") to provide employees, directors, officers,
consultants or advisors of the Company the ability to purchase Series B
Preferred at $7.10 per share. During 1998, 20,000 shares of Series B Preferred
(13,333 shares of Class B Common Stock, post-split) were sold for $142,000.
8. COMMITMENTS AND CONTINGENCIES
SIGNIFICANT AGREEMENTS
The Company has entered into various agreements in which the Company has
obtained the right to use and distribute licensed software and certain
proprietary technology as incorporated into the WORLDGATE Service until
September 2002 for total minimum subscription fees of $550,000. For the years
ended December 31, 1997 and 1998, approximately $110,000 and $208,000 has been
expensed, respectively. In addition, in one of the agreements, the Company will
be required to pay an annual maintenance service fee of $0.02 per subscriber
over two million subscribers.
F-18
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
8. COMMITMENTS AND CONTINGENCIES (CONTINUED)
LEGAL
The Company is a party to various pending legal actions. The Company does
not expect that the ultimate resolution of pending legal matters in future
periods will have a material effect on its financial position or cash flows, but
it could have a material effect on its results of operations.
LEASES
The Company has entered into operating leases for its office facilities and
certain equipment.
The future minimum rental commitments under capital leases and operating
leases for each fiscal year ended December 31 are as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
FISCAL YEAR LEASES LEASES
- --------------------------------------------------------------------- --------- ------------
<S> <C> <C>
1999............................................................... $ 5,699 $ 757,000
2000............................................................... 5,699 1,046,000
2001............................................................... 5,699 921,000
2002............................................................... 2,354 891,000
2003............................................................... -- 909,000
Thereafter......................................................... -- 5,301,000
--------- ------------
Total minimum lease payments....................................... 19,451 $ 9,825,000
------------
------------
Less amounts representing interest................................. (3,506)
---------
Present value of net minimum lease payments (including $4,210
currently payable)............................................... $ 15,945
---------
---------
</TABLE>
Total rent expense for operating leases for the years ended December 31,
1997 and 1998 amounted to approximately $299,497 and $554,510, respectively.
9. RELATED PARTY TRANSACTIONS
In 1997, the Company entered into an agreement with a cable operator who is
an investor. Revenues recognized from this investor were approximately $0,
$46,000 and $451,000 for the years ended December 31, 1996, 1997 and 1998,
respectively. Accounts receivable amounted to approximately $11,000 and $176,000
at December 31, 1997 and 1998, respectively.
In 1997 and 1998, the Company entered into agreements with four stockholders
to provide the Company with engineering and development support. As a result of
these agreements, the Company has expensed approximately $1,125,000 and
$2,951,000 for the years ended December 31, 1997 and 1998, respectively. An
additional $2,800,000 of work remains to be funded and performed under these
contracts. Accounts payable amounted to approximately $93,000 and $41,000 as of
December 31, 1997 and 1998, respectively. These stockholders are suppliers of
technology and components for the Company's products and services. The
agreements the Company has with these stockholders provide for licensing of
technology, as well as contracted services, including hardware and software
development, product testing and certification, and the creation and development
of tools and systems to facilitate the Company's engineering efforts. These
agreements do not provide for ongoing royalties, purchase provisions, nor for
any requirement to provide additional funding to the Company. Also revenues
recognized from stockholders who provide engineering and development support,
for the year
F-19
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
9. RELATED PARTY TRANSACTIONS (CONTINUED)
ended December 31, 1998 amounted to approximately $100,000 from the sale of
head-end units and other equipment for use in certain facilities.
In 1998, the Company entered into a leasing arrangement for a building,
which will be occupied in 1999, with an entity formed by non-employee investors.
Included in Deposits and other is $1,000,000 related to this lease.
During 1996, the Company borrowed approximately $350,000 from its Chairman.
The note bore interest at 7% and was repaid in December 1996.
10. SUBSEQUENT EVENTS
In January and February 1999, the Company sold 697,437 shares of Series C
Preferred (464,958 shares of Class A Common Stock, post-split) for $11.00 per
share for approximately $7,600,000. Upon completion of the IPO as presently
anticipated, these shares will convert into shares of Class A Common Stock.
In January 1999, the board of directors approved a 2-for-3 reverse stock
split effective immediately prior the IPO. All common stock share data have been
retroactively adjusted to reflect this change.
In March 1999, the Company received proceeds of $911,600 and $4,558,000
through the issuance of $1,000,000 and $5,000,000 of notes payable with a stated
interest rate of 12.48% due September 1999 and December 1999, respectively. In
connection with the issuance of these notes payable, the holders of the notes
received warrants to purchase the number of shares of common stock equal to
$5,469,600 divided by the lower of $16.50 and the initial public offering price
at an exercise price equal to the lower of $16.50 and the initial public
offering price per share. Assuming an initial public offering price of $13.00
per share, these holders may purchase up to 420,738 shares of common stock. The
fair value of the warrants will be accounted for as an additional discount of
the notes payable which will be amortized as additional interest expense over
the term of the notes. These notes payable become immediately due upon the
completion of the Company's initial public offering.
F-20
<PAGE>
----------------------
TABLE OF CONTENTS
----------------------
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Prospectus Summary.......................... 3
Risk Factors................................ 6
Use of Proceeds............................. 12
Dividend Policy............................. 12
Capitalization.............................. 13
Dilution.................................... 14
Selected Financial Information.............. 15
Management's Discussion and Analysis
of Financial Condition and
Results of Operations..................... 17
Business.................................... 23
Management.................................. 43
Certain Transactions........................ 49
Principal Stockholders...................... 52
Description of Capital Stock................ 54
Shares Eligible for Future Sale............. 56
Underwriting................................ 59
Legal Matters............................... 60
Experts..................................... 61
Additional Information...................... 61
Index to Financial Statements............... F-1
</TABLE>
4,500,000 SHARES
[LOGO]
COMMON STOCK
---------------
PROSPECTUS
---------------
GERARD KLAUER MATTISON & CO., INC.
JEFFERIES & COMPANY, INC.
JANNEY MONTGOMERY SCOTT INC.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemization of all expenses (subject to future
contingencies) incurred or expected to be incurred by WorldGate in connection
with the issuance and distribution of the securities being offered hereby (other
than underwriting discounts and commissions and underwriters' non-accountable
expense allowance):
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 20,142
NASD filing fee................................................... 7,745
Nasdaq filing fee................................................. 95,000
Printing and engraving expenses................................... 175,000
Legal fees and expenses........................................... 250,000
Accounting fees and expenses...................................... 150,000
Blue Sky fees and expenses (including legal fees)................. 10,000
Transfer agent and registrar fees and expenses.................... 4,000
Miscellaneous..................................................... 88,113
---------
Total............................................................. $ 800,000
---------
---------
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant's certificate of incorporation, as amended, currently states
that a director of the registrant shall have no personal liability to the
registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director except to the extent that Section 102(b)(7) (or any successor
provision) of the Delaware General Corporation Law, as amended from time to
time, expressly provides that the liability of a director may not be eliminated
or limited. No amendment or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director of the registrant
for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
The registrant's bylaws require the registrant to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that such person is or was a director or
officer of the registrant, or is or was serving while a director or officer of
the registrant at its request as a director, officer, employee, agent, fiduciary
or other representative of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines, excise taxes and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding to the full extent permissible under Delaware law. Any person
claiming indemnification as provided in the bylaws shall be entitled to advances
from the registrant for payment of the expenses of defending actions against
such person in the manner and to the full extent permissible under Delaware law.
On the request of any person requesting indemnification under such provisions,
the board of directors of the registrant or a committee thereof shall determine
whether such indemnification is permissible or such determination shall be made
by independent legal counsel if the board or committee so directs or if the
board or committee is not empowered by statute to make such determination. The
indemnification and advancement of expenses provided by the bylaws shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any insurance or other agreement,
vote of shareholders or disinterested directors or otherwise,
II-1
<PAGE>
both as to actions in their official capacity and as to actions in another
capacity while holding an office, and shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such person. The registrant shall have the power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the registrant or is or was serving at
its request as a director, officer, employee, agent, fiduciary or other
representative of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the registrant would have the power to indemnify
him against such liability under the provisions of the bylaws. The duties of the
registrant to indemnify and to advance expenses to a director or officer
provided in the bylaws shall be in the nature of a contract between the
registrant and each such director or officer, and no amendment or repeal of any
such provision of the bylaws shall alter, to the detriment of such director or
officer, the right of such person to the advancement of expenses or
indemnification related to a claim based on an act or failure to act which took
place prior to such amendment, repeal or termination. Delaware law also permits
indemnification in connection with a proceeding brought by or in the right of
the registrant to procure a judgment in its favor. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the registrant pursuant to the foregoing
provisions, the registrant has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in that Securities Act and is therefore unenforceable. The
registrant has directors and officers liability insurance.
The underwriting agreement provides that the underwriters are obligated,
under some circumstances, to indemnify directors, officers and controlling
persons of the registrant against some liabilities, including liabilities under
the Act. Reference is made to Section 8 of the form of underwriting agreement
which will be filed by amendment as Exhibit 1.1 hereto.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since its inception, WorldGate has made the following sales of unregistered
securities to employees and various institutional and other accredited
investors:
- On December 4, 1996, WorldGate issued an aggregate of 9,100,801 shares of
class B common stock to various management employees in exchange for the
cancellation of their membership interests in the LLC. This transaction
was exempt from registration pursuant to Section 4(2) of the Securities
Act.
- From December 11, 1996 through July 2, 1997, WorldGate sold an aggregate
of 2,752,111 shares of series A preferred stock at a purchase price of
$4.395 per share to various accredited investors. These sales were exempt
from registration pursuant to Section 4(2) of the Securities Act and Rule
506 of Regulation D thereunder.
- From November 24, 1997 through December 31, 1997, WorldGate sold an
aggregate of 2,783,031 shares of series B preferred stock at a purchase
price of $7.10 per share to various accredited investors. On November 7,
1997, November 24, 1997, December 5, 1997 and December 31, 1997, WorldGate
also issued warrants to purchase an aggregate of 467,729 shares of series
B preferred stock at an exercise price of $7.10 a share to various
institutional accredited investors. These sales were exempt from
registration pursuant to Section 4(2) of the Securities Act and Rule 506
of Regulation D thereunder.
- WorldGate also sold an aggregate of 20,000 shares of series B preferred
stock at a purchase price of $7.10 a share to various employees of
WorldGate pursuant to an Employee Stock Purchase Plan and Agreement dated
January 23, 1998. These sales were exempt from registration pursuant to
Section 4(2) of the Securities Act and Rule 701 thereunder.
II-2
<PAGE>
- From September 2, 1998 through February 8, 1999, WorldGate sold an
aggregate of 1,529,714 shares of series C preferred stock at a purchase
price of $11.00 per share to various accredited investors. These sales
were exempt from registration pursuant to Section 4(2) of the Securities
Act and Rule 506 of Regulation D thereunder.
- On March 2, 1999 WorldGate issued its senior secured promissory notes in
the aggregate principal amount of $6 million and issued warrants to
purchase the number of shares of common stock equal to $5,469,600 divided
by the lower of $16.50 and the initial public offering price at an
exercise price equal to the lower of the initial public offering price and
$16.50, to two institutional accredited investors. Assuming an initial
public offering price of $13.00 per share, these holders may purchase up
to 420,738 shares of common stock. These sales were exempt from
registration pursuant to Section 4(2) of the Securities Act.
Pursuant to WorldGate's stock option plan, as amended, as of March 16, 1999
WorldGate has granted options to purchase a total of 913,752 shares of class B
common stock to its employees and some other persons during the past three
fiscal years at exercise prices ranging from $0.75 to $16.50 per share. For a
more detailed description of WorldGate's stock option plan, see
"Management--Stock Option Plan" in this registration statement. In granting the
options and selling the underlying securities upon exercise of the options,
WorldGate is relying upon exemptions from registration set forth in Rule 701 and
Section 4(2) of the Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- ----------------- -------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement.##
3.1 Form of Amended and Restated Certificate of Incorporation of the Company.##
3.2 Form of Amended and Restated By-laws of the Company.##
5.1 Opinion of Drinker Biddle & Reath LLP.##
10.1 Lease Agreement dated October 7, 1998 between WorldGate and Balanced Capital LLC, as amended by
First Amendment to Lease Agreement dated December 7, 1998 between WorldGate and Balanced Capital
LLC, as further amended by Second Amendment to Lease Agreement dated December 17, 1998 between
WorldGate and Balanced Capital LLC.*
10.2 Agreement of Lease dated January 14, 1997 between Glenview Corporate Center and WorldGate, as
amended by First Amendment to Agreement of Lease dated October 24, 1997 between Glenview
Corporate Center and WorldGate.*
10.3 Agreement of Lease dated November 26, 1997 between Glenview Corporate Center and WorldGate.*
10.4 Development Agreement dated October 15, 1998 between WorldGate and Scientific-Atlanta, Inc.*+
10.5 Memorandum of Understanding dated September 2, 1998 between WorldGate and General Instrument
Corporation.*+
10.6 Senior Loan and Security Agreement No. 0098 dated July 15, 1997 between Phoenix Leasing
Incorporated and WorldGate, as amended by Amendment No. 1 to Senior Loan and Security Agreement
No. 0098 dated June 18, 1998 between Phoenix Leasing Incorporated and WorldGate.*
10.7 Master Agreement dated November 7, 1997 between Charter Communications, Inc. ("Charter") and
WorldGate.*+
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- ----------------- -------------------------------------------------------------------------------------------------
<C> <S>
10.8 Warrant Agreement dated November 7, 1997 between Charter and WorldGate.*
10.9 Affiliation Agreement dated November 7, 1997 between Charter and WorldGate.#+
10.10 Affiliation Agreement dated December 8, 1998 between WorldGate and Prestige Cable, Inc.#+
10.11 Affiliation Agreement dated October 19, 1998 between WorldGate and Massillon CableTV, Inc.#+
10.12 Affiliation Agreement dated September 25, 1998 between WorldGate and TVCable, S.A.*+
10.13 Affiliation Agreement dated December 14, 1998 between WorldGate and City of Tacoma, Tacoma Public
Utilities, d/b/a Click!Network.#+
10.14 Amended and Restated 1996 Stock Option Plan, as further amended by First Amendment to 1996 Stock
Option Plan dated June 12, 1998.*
10.15 Agreement dated June 15, 1998 between WorldGate and Thomas R. Baxter.*
10.16 First Amended and Restated Stockholders' Agreement dated September 2, 1998 among WorldGate and
the stockholders identified therein.*
10.17 Security Agreement dated March 2, 1999 between WorldGate, Strong River Investment, Inc. ("Strong
River") and Ampal American-Israel Corporation ("Ampal").*
10.18 Intellectual Property Security Agreement dated March 2, 1999 between WorldGate, Strong River and
Ampal.*
10.19 Warrant dated March 2, 1999 issued to Ampal by WorldGate.*
10.20 Warrant dated March 2, 1999 issued to Strong River by WorldGate.*
10.21 Senior Secured Promissory Note dated March 2, 1999 in the principal amount of $500,000 issued by
WorldGate in favor of Ampal.*
10.22 Senior Secured Promissory Note dated March 2, 1999 in the principal amount of $2,500,000 issued
by WorldGate in favor of Ampal.*
10.23 Senior Secured Promissory Note dated March 2, 1999 in the principal amount of $500,000 issued by
WorldGate in favor of Strong River.*
10.24 Senior Secured Promissory Note dated March 2, 1999 in the principal amount of $2,500,000 issued
by WorldGate in favor of Strong River.*
10.25 Letter Agreement dated November 14, 1997 between WorldGate and Next Level Systems, Inc.*
10.26 Affiliation Agreement dated September 30, 1998 between WorldGate and Cable Bahamas, LTD.#+
21.1 Subsidiaries of WorldGate.*
23.1 Consent of PricewaterhouseCoopers LLP.#
23.2 Consent of Drinker Biddle & Reath LLP (to be included in Exhibit 5.1).##
24.1 Power of Attorney (included on signature page).*
27.1 Financial Data Schedule.*
</TABLE>
- ------------------------
* Filed previously.
# Filed herewith.
## To be filed by amendment.
+ Confidential Treatment Requested. Portions of these exhibits have been
omitted pursuant to a request for confidential treatment.
II-4
<PAGE>
(B) FINANCIAL STATEMENT SCHEDULES
All information for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission is either included in the
financial statements or is not required under the related instructions or is
inapplicable, and therefore has been omitted.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) It will provide to the underwriters at the closing specified in the
underwriting agreements certificates in such denominations and registered in
such names as required by the underwriters to permit prompt delivery to each
purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment no. 2 to the registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Bensalem,
Pennsylvania on April 6, 1999.
WORLDGATE COMMUNICATIONS, INC.
BY: /S/ HAL M. KRISBERGH
-----------------------------------------
Hal M. Krisbergh
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this amendment
no. 2 to the registration statement has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURES TITLES DATE
- ------------------------------ --------------------------- -------------------
Chairman and Chief
/s/ HAL M. KRISBERGH Executive Officer,
- ------------------------------ Director (Principal April 6, 1999
Hal M. Krisbergh Executive Officer)
/s/ DAVID A. DILL Chief Financial Officer
- ------------------------------ (Principal Financial and April 6, 1999
David A. Dill Accounting Officer)
* Vice President and General
- ------------------------------ Manager, Director April 6, 1999
David E. Wachob
* Director
- ------------------------------ April 6, 1999
Alan Gerry
* Director
- ------------------------------ April 6, 1999
Marcia J. Hooper
* Director
- ------------------------------ April 6, 1999
Ronald A. Walter
* Director
- ------------------------------ April 6, 1999
Thomas G. Baxter
* Director
- ------------------------------ April 6, 1999
Graham Pattison
<TABLE>
<S> <C> <C>
*By: /s/ DAVID A. DILL
--------------------------------------
David A. Dill
ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION PAGE NO.
- ----------------- --------------------------------------------------------------------------------------- -----------
<C> <S> <C>
1.1 Form of Underwriting Agreement.##
3.1 Form of Amended and Restated Certificate of Incorporation of the Company.##
3.2 Form of Amended and Restated By-laws of the Company.##
5.1 Opinion of Drinker Biddle & Reath LLP.##
10.1 Lease Agreement dated October 7, 1998 between WorldGate and Balanced Capital LLC, as
amended by First Amendment to Lease Agreement dated December 7, 1998 between WorldGate
and Balanced Capital LLC, as further amended by Second Amendment to Lease Agreement
dated December 17, 1998 between WorldGate and Balanced Capital LLC.*
10.2 Agreement of Lease dated January 14, 1997 between Glenview Corporate Center and
WorldGate, as amended by First Amendment to Agreement of Lease dated October 24, 1997
between Glenview Corporate Center and WorldGate.*
10.3 Agreement of Lease dated November 26, 1997 between Glenview Corporate Center and
WorldGate.*
10.4 Development Agreement dated October 15, 1998 between WorldGate and Scientific-Atlanta,
Inc.*+
10.5 Memorandum of Understanding dated September 2, 1998 between WorldGate and General
Instrument Corporation.*+
10.6 Senior Loan and Security Agreement No. 0098 dated July 15, 1997 between Phoenix Leasing
Incorporated and WorldGate, as amended by Amendment No. 1 to Senior Loan and Security
Agreement No. 0098 dated June 18, 1998 between Phoenix Leasing Incorporated and
WorldGate.*
10.7 Master Agreement dated November 7, 1997 between Charter Communications, Inc.
("Charter") and WorldGate.*+
10.8 Warrant Agreement dated November 7, 1997 between Charter and WorldGate.*
10.9 Affiliation Agreement dated November 7, 1997 between Charter and WorldGate.#+
10.10 Affiliation Agreement dated December 8, 1998 between WorldGate and Prestige Cable,
Inc.#+
10.11 Affiliation Agreement dated October 19, 1998 between WorldGate and Massillon CableTV,
Inc.#+
10.12 Affiliation Agreement dated September 25, 1998 between WorldGate and TVCable, S.A.*+
10.13 Affiliation Agreement dated December 14, 1998 between WorldGate and City of Tacoma,
Tacoma Public Utilities, d/b/a Click!Network.#+
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION PAGE NO.
- ----------------- --------------------------------------------------------------------------------------- -----------
<C> <S> <C>
10.14 Amended and Restated 1996 Stock Option Plan, as further amended by First Amendment to
1996 Stock Option Plan dated June 12, 1998.*
10.15 Agreement dated June 15, 1998 between WorldGate and Thomas R. Baxter.*
10.16 First Amended and Restated Stockholders' Agreement dated September 2, 1998 among
WorldGate and the stockholders identified therein.*
10.17 Security Agreement dated March 2, 1999 between WorldGate, Strong River Investment, Inc.
("Strong River") and Ampal American-Israel Corporation ("Ampal").*
10.18 Intellectual Property Security Agreement dated March 2, 1999 between WorldGate, Strong
River and Ampal.*
10.19 Warrant dated March 2, 1999 issued to Ampal by WorldGate.*
10.20 Warrant dated March 2, 1999 issued to Strong River by WorldGate.*
10.21 Senior Secured Promissory Note dated March 2, 1999 in the principal amount of $500,000
issued by WorldGate in favor of Ampal.*
10.22 Senior Secured Promissory Note dated March 2, 1999 in the principal amount of
$2,500,000 issued by WorldGate in favor of Ampal.*
10.23 Senior Secured Promissory Note dated March 2, 1999 in the principal amount of $500,000
issued by WorldGate in favor of Strong River.*
10.24 Senior Secured Promissory Note dated March 2, 1999 in the principal amount of
$2,500,000 issued by WorldGate in favor of Strong River.*
10.25 Letter Agreement dated November 14, 1997 between WorldGate and Next Level Systems,
Inc.*
10.26 Affiliation Agreement dated September 30, 1998 between WorldGate and Cable Bahamas,
LTD.#+
21.1 Subsidiaries of WorldGate.*
23.1 Consent of PricewaterhouseCoopers LLP.#
23.2 Consent of Drinker Biddle & Reath LLP (to be included in Exhibit 5.1).##
24.1 Power of Attorney (included on signature page).*
27.1 Financial Data Schedule.*
</TABLE>
- ------------------------
* Filed previously.
# Filed herewith.
## To be filed by amendment.
+ Confidential Treatment Requested. Portions of these exhibits have been
omitted pursuant to a request for confidential treatment.
II-8
<PAGE>
Exhibit 10.9
WORLDGATE AFFILIATION AGREEMENT
THIS AGREEMENT DATED NOVEMBER 7,1997 IS BETWEEN CHARTER COMMUNICATIONS, INC.,
WITH ITS PRINCIPAL PLACE OF BUSINESS AT 12444 POWERSCOURT DRIVE, ST. LOUIS, MO
63131, (HEREINAFTER REFERRED TO AS "AFFILIATE") AND WORLDGATE COMMUNICATIONS,
INC., WITH ITS PRINCIPAL PLACE OF BUSINESS AT: 3220 TILLMAN DRIVE, SUITE 300,
BENSALEM, PA 19020 (HEREINAFTER REFERRED TO AS "WG").
AFFILIATE AND WG (COLLECTIVELY THE "PARTIES") HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS:
The following terms, abbreviations and definitions used in this
Agreement shall have the meanings set forth herein below:
(a) "SYSTEM(S)" means Affiliate's television distribution system(s)
for one or more geographical service areas, as from time to time are identified
in Exhibit A.
(b) "PRIVATE RESIDENCE" means a private residential dwelling unit.
(c) "PROVIDER(S)" means one or more third parties providing content
for Subscriber access on or as part of the WorldGate-SM- Service.
(d) "SUBSCRIBER" means an Affiliate customer authorized to gain access
to the WorldGatell Service as part of Affiliate's System.
(e) "SUBSCRIBER ACCESSIBLE CONTENT" MEANS the programs, information,
and other content which, from time to time, has been licensed or is otherwise
provided by WG and others for access by Subscribers on or as part of the
WorldGate-SM- Service .
(f) "SUBSCRIBER TRANSACTION" means any instance whereby a Subscriber
accesses or is authorized to access the WorldGate Service.
(g) "TERM" means the term of this Agreement which shall commence on
the date hereof, and shall.terminate five (5) years from the date set forth
above, except if renewed or terminated earlier as provided herein.
(h) "WORLDGATE PLATFORM" means the hardware and software components to
be supplied by WG to Affiliate and used by Affiliate with Affiliate's System to
provide Subscriber access to the WorldGate Service hereunder.
(i) "WORLDGATE SERVICE" means an interactive Internet access service
which
Page 1 of 22
<PAGE>
Page 2 of 22
utilizes WG's proprietary WorldGate Platform in connection with the Affiliate's
System(s) for addressably transmitting downstream application information
(including Subscriber Accessible Content) to Subscribers in the Affiliate's
System channels (vertical blanking intervals, full-field video text channels or
MPEG data stream) and, either utilizing separate RF carriers in certain segments
of the upstream communication spectrum of the System's current allocated
spectrum and/or a suitable phone-network based return facility for transmitting
upstream communication.
2. AUTHORIZATION OF RIGHTS, WORLDGATE PLATFORMS AND SYSTEM:
(a) WG hereby authorizes Affiliate, during the Term hereof, to provide
Subscribers access to the WorldGate Service, via the WorldGate Platforms in
connection with Affiliate's System, in accordance with the terms and conditions
of this Agreement. Except as agreed by the Parties such WG Service will not
materially interfere with Affiliate's ability to use the published features and
functions of the applicable set top converters with the correctly configured
expansion modules.
(b) From time to time during the term hereof WG shall provide to
Affiliate and Affiliate shall acquire by purchase, lease or such other
acquisition transaction as may be agreed by the Parties, certain systems and the
components of the WorldGate Platform as are further identified in Exhibit B. The
terms and conditions of such acquisition as well as the associated installation,
maintenance and warranty of the WorldGate Platforms are also set forth in
Exhibit B.
(c) WG shall make available to Affiliate such Subscriber Accessible
Content as may, from time to time, be determined by the Parties. Affiliate,
however, acknowledges that creators of Subscriber Accessible Content may, from
time to time, and for any reason make additions to, deletions from and/or
otherwise modify Subscriber Accessible Content, and accordingly, WG also
reserves such right. Affiliate and WG further acknowledge and agree that such
Subscriber Accessible Content including, without limitation, access to the World
Wide Web, may include materials and information of uncertain or even
objectionable origin, nature and/or character, and that WG expressly disclaims
any responsibility for or liability associated with Subscriber's access to or
use of the Subscriber Accessible Content to the extent such materials and
information were either not created by WG or the provision of which is not in
WG's control and discretion.
(d) Affiliate may request modifications of or additions to certain
user interface screens or other aspects of the WorldGate Platform and/or the
Subscriber Accessible Content. WG agrees to work with Affiliate to accommodate
such requests to the extent that WG agrees such modifications are viable and
will enhance the WorldGate Service.
(e) (i) Affiliate shall provide a suitable System and facilities
associated therewith as further identified in Exhibit A. Such Systems as are
listed in the initial Exhibit A hereto are the Systems in which Affiliate has in
excess of 25,000 customers and that are technically capable of providing
interactive pay per view service. Affiliate will have a period not to exceed six
(6) months from the effective date hereof to install the appropriate headend
equipment and to
WORLDGATE COMMUNICATIONS CONFIDENTIAL
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otherwise deploy the WorldGate Service in these systems. (ii) Affiliate may,
from time to time, add additional Systems, in which event Affiliate shall use
commercially reasonable efforts to provide WG with at least ninety (90) days
advance written notice of any such proposed additions to the Systems. Upon the
agreement of the Parties this Agreement shall be promptly amended to cover such
proposed additions, by the execution of supplemental and/or superseding Exhibit
A(s) setting forth the agreed a ' nd then current information relevant to such
Systems. (iii) Further, Affiliate may make changes to the Systems and facilities
comprising the same, and/or WG may make changes to the WG Platform. In the event
such changes materially affect the performance of the WorldGate Service, the
Party making the changes shall use reasonable efforts to provide the other Party
with as much advance notice of the same as is possible. (iv) The installation,
maintenance and support of such Systems and associated facilities shall be the
sole responsibility of Affiliate and its suppliers. Affiliate acknowledges and
agrees that WG and its contractors will require both physical and on-line access
to the System and the WorldGate Platform connected thereto to perform their
obligations hereunder. Affiliate shall provide WG and its contractors reasonable
physical and remote (via modem and other electronic means) access to such
Systems (including the facilities and technical personnel associated therewith)
and to the WorldGate Platforms connected or to be connected thereto, to afford
any required installation, support, service and reporting by WG hereunder.
3. RESERVATION OF RIGHTS:
(a) Affiliate agrees that it is the essence of this Agreement that:
(i) the WorldGate Platform shall not be modified in any manner unless approved
in writing by WG; (ii) the WorldGate Platform shall not be utilized to provide
services other than the WorldGate Service, provided, however, Affiliate may use
the set top converters to provide other services as long as the provision of
such other services does not use the WG headend or the WG Programs ( as defined
in Exhibit B); and (iii) Affiliate shall not authorize any other party to do any
of the acts forbidden herein (collectively, the "Prohibited Acts"), without the
specific written consent of WG and/or its content providers as may be required,
or except as otherwise set forth herein.
(b) Affiliate shall immediately notify WG upon the occurrence or
likely occurrence of any Prohibited Acts of which it becomes aware.
(c) All licenses, rights and interest in, to and with respect to the
WorldGate Platform, the Subscriber Accessible Content, the elements, parts and
derivations thereof (including without limitation the writings, images,
displays, electronic reproductions, user interfaces, sounds and other works
embodied therein, derived therefrom or ancillary thereto, and the media of
reproduction, performance or exhibition thereof), as well as the intellectual
property rights related thereto, not specifically granted herein to Affiliate or
to Affiliate's Subscribers, shall be and are expressly and entirely reserved by
WG and the applicable Content Providers. The licenses granted to Affiliate and
Affiliate's Subscribers hereunder do not include any right to sublicense any
third party, in whole or in part.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
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4. MARKETING AND PROMOTION OF THE WORLDGATE SERVICE: The Parties agree to
diligently market and promote the WorldGate Service to all Affiliate's customers
which are or become part of Affiliate's System(s). In particular and without
limitation the Parties agree to provide such marketing and promotional services
as are further identified in Exhibit C. The Parties also recognize that the
WorldGate brand is a substantial asset of WG and that use of such brand as well
as any other applicable WG trademarks and service marks is limited to promotion
of the WG service in a manner consistent with that typically used with other
quality and valued trademarks and service marks. The WG marks shall be
prominently displayed in all consumer communications promoting the WG services
such as, but not limited to, marketing materials, advertisements, direct mail
pieces, bill stuffers, price lists, etc. Examples of any marketing materials and
TV spots developed by Affiliate promoting the WG services, and all other uses of
the WG marks shall be furnished to WG upon WG's request. The WG marks may be
promoted with Affiliate's mark with WG's prior written approval.
5. PAYMENTS, ACCESS FEES AND TAXES:
(a) As consideration for the rights granted and services performed
hereunder, Affiliate shall pay to WG Subscriber Access Fees for the WorldGate
Service, as more fully set forth in Exhibit D1. WG has published a rate card for
its standard Subscriber Access Fees effective as of the execution date of this
Agreement as set forth in Exhibit D2. In the event of a change in WG's published
rate card, in which the standard Subscriber Access Fees set forth therein are
reduced from those set forth in the initial Exhibit D2, or any subsequent
Exhibit D2, then Exhibit D2 shall be amended, or further amended, as the case
may be, to reflect the then current published rate card, and such Subscriber
Access Fees then set forth in Exhibit D1 shall be reduced, and Exhibit D1 shall
be amended, such that the reduced rates in the amended Exhibit D1 have the same
discount with respect to the amended Exhibit D2 and the then current published
rate card thereby reflected as the Subscriber Access Fees in the initial Exhibit
D1 have with respect to the standard Subscriber Access Fees set forth in the
initial Exhibit D2. Furthermore, if at any time, more than sixty five (65%)
percent of WG's other affiliates (i.e., other cable operators) are paying
Subscriber Access Fees which are less than the standard Subscriber Access Fees
set forth in then current Exhibit D2, such Exhibit D2 shall be amended to
reflect Subscriber Access Fees such that no more than sixty five (65%) percent
of WG's other affiliates are paying less than the amended rates, and Exhibit D1
shall be amended accordingly.
(b) Notwithstanding the required payment of a Subscriber Access Fee as
described above, the Parties agree and acknowledge that Affiliate is free to
determine what fees, if any, it charges its Subscribers with respect to access
to the WorldGate Service and/or any Subscriber Transactions.
(c) All payments hereunder, including, without limitation, the
Subscriber Access Fee are payable without deduction for any franchise fees and
taxes (including interest and penalties on any such amounts) now or hereafter
imposed upon Affiliate or based upon the licensing, rental, delivery,
exhibition, possession, or use of the WG Platform or the access to any
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
Page 5 of 22
Subscriber Accessible Content hereunder, but excluding however any taxes
assessed upon any of WG's income or personal property (collectively "Taxes").
Affiliate shall pay and hold WG and Content Providers forever harmless from any
liability associated with such Taxes.
(d) Except as set forth in sub-paragraph (a), above, all payments
hereunder, including without limitation the purchase price of the components of
the WorldGate Platform are due within forty-five (45) days of the receipt of
invoice for the same. Interest shall accrue on all amounts not paid when due at
a rate equal to the lesser of twelve (12%) percent per annum or any maximum rate
imposed under applicable laws and regulations. Payments shall not be deferred or
subjected to setoff by Affiliate. Payments may not be suspended and shall
continue during the pendency of any dispute hereunder, provided, however, that
Affiliate may withhold payment of an amount to the extent Affiliate in good
faith and with a basis it reasonably believes to be legitimate disputes that
such amount is due and payable to WG. All payments to be made to WG shall be in
the currency of the United States unless otherwise agreed in writing by the
parties.
6. STATEMENTS AND REPORTS: WG shall provide to Affiliate an accounting statement
and report within ten (10) days after the end of each calendar month in which
the WorldGate Service is distributed hereunder. Said statement shall include at
least the following information: the number of Subscribers. Such information may
be provided electronically as part of Affiliate's access to computer terminals
included in the WorldGate Platform. Affiliate acknowledges that WG requires
access to records and information relating to Subscribers and Subscriber
Transactions in order to provide such statements and reports and hereby consents
to the same. While Affiliate acknowledge's WG's need for access to its
subscriber records and information, WG acknowledges that Affiliate shall retain
all proprietary rights to Affiliate's subscriber records and information and
that, except as required for the purposes of this Agreement, WG is prohibited
from sharing, selling or otherwise disseminating such Affiliate subscriber
records and information to third parties. WG will adhere to the Privacy Act
provisions Of the Telecommunications Act of 1984, as amended. The Parties also
recognize the importance and desirability of developing an interface between the
WorldGate Platform and the current standard cable operator billing interfaces,
and wg will use all commercially reasonable efforts to develop such interface in
accordance with the typical commercial requirements for the same, and in a
timely manner consistent with the deployment schedule hereunder.
7. AUDIT: Affiliate and WG shall keep accurate and complete books and records of
Subscriber Transactions and accounts hereunder, and any required adjustments
thereto. Subject to the confidentiality provisions contained herein Affiliate
and WG may, not more than once during each calendar year and upon at least
thirty days prior written notice, at their expense and during regular business
hours, have the right to audit all such books and records of the other
pertaining to the Subscriber Transactions occurring over Affiliate's System.
Such audits shall be conducted by a nationally recognized, independent public
accounting firm chosen by the auditing Party on the auditing Party's behalf. The
audited Party agrees to fully cooperate with auditing Party's representatives
and/or designees, and shall provide such
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
Page 6 of 22
representatives and/or designees with an office or adequate space in which to
facilitate any audit of such books and/or recor ' ds. If an audit or checking
reveals a discrepancy in the Access Fee owed for the audit period, WG and
Affiliate agree to make prompt adjustments of such accounts along with any
required credits or payments associated therewith.
8. REPRESENTATIONS AND WARRANTIES OF THE PARTIES:
(a) Each of the Parties represents and warrants that (i) it has the
authority and power to enter into this Agreement and to perform its obligations
hereunder; and (ii) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
and are deemed to be valid, binding and enforceable obligations.
9. INDEMNIFICATION:
(a) WG shall indemnify, defend and forever hold harmless Affiliate and
its subsidiaries, officers, directors, employees, agents and shareholders
against and from any and all claims, costs, liabilities, judgments, damages and
expenses (including, without limitation, reasonable attorney's fees) arising out
of any breach by WG of any warranty, representation or other provisions of this
Agreement. Affiliate shall indemnify, defend and forever hold harmless WG and
its subsidiaries, officers, directors, employees, shareholders and agents
against and from any and all claims, costs, liabilities, judgments, damages and
expenses (including, without limitation, reasonable attorney's fees) arising out
of any breach by Affiliate of any warranty, representation or other provisions
of this Agreement.
(b) WG shall indemnify Affiliate against (i) any award of damages and
costs made against Affiliate by a final judgment (final judgment as used herein
shall not be construed as requiring Affiliate to pursue an appeal which is not
reasonably likely of materially changing a currently standing judgement) of a
court of competent jurisdiction in any such action, insofar as the same are
based on a claim that the WG Platform infringes any United States copyright,
trademark or patent, and (ii) any settlements and compromises approved by WG as
described below. WG shall control the defense of any such action including
appeals, and all negotiations thereof, including the right to effect any
settlement or compromise. In case the use of the WorldGate Platform is, in any
action, held to constitute such an infringement and the use thereof is enjoined,
WG shall, at its option and expense (i) procure for Affiliate the right to
continue using the WorIdGate Platform, (ii) replace or modify the same so that
it becomes noninfringing and performs the same service with substantially the
same quality, or (iii) authorize Affiliate to return the WorldGate Platform and
provide Affiliate with a refund of the purchase price, less an allowance for
past use, prorated based upon a five year life. WG shall have no liability for
any claim of infringement based on: (1) any use of other than a current
unaltered release of the WorldGate Platform; or (2) any access to or use of the
Subscriber Accessible Content or any combination or use of the WorldGate
Platform with non-WG hardware, software, Subscriber Accessible Content or data.
The foregoing states the entire liability with respect to infringement of any
intellectual property rights with regard to the WorldGate Platform.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
Page 7 of 22
(c) In any case in which indemnification is sought hereunder:
(i) The party seeking indemnification shall promptly notify
the other party in writing upon the initiation of any claim or litigation to
which the indemnification relates;
(ii) The party seeking indemnification shall afford the other
party the opportunity to participate in, and, at the option of such other party,
to control, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
(iii) The party seeking indemnification shall fully cooperate
with the reasonable requests of the other party in its participation in, and
control of, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
10. SECURITY: Each Party shall employ such security systems and procedures as
may be reasonable and commercially feasible to prevent theft, pirating or other
unauthorized access to the WorldGate Service.
11. RENEWAL, TERMINATION AND DEFAULTS:
(a) Upon the expiration of the initial Term hereunder this Agreement
shall be automatically renewed for additional successive two (2) year periods
thereafter unless terminated by either Party upon ninety (90) days written
notice prior to the expiration of such initial Term and any renewal period.
(b) Either party shall be entitled, in addition to all of its other
rights and remedies at law, and at its option forthwith, upon giving notice to
the other party to terminate this Agreement,
(i) if said other party shall fail to perform any of its
obligations or undertakings required of it hereunder, or shall be in breach of
any of its warranties or representations herein contained, and shall not have
cured or remedied such failure or breach within sixty (60) days of written
notification thereof.
(ii) If a party hereunder commences a voluntary case under
Title 11 of the United States Bankruptcy Code as now and hereafter in effect, or
any successor statute, or any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or a party consents to the entry of an order for
relief in an involuntary case, or to the conversion of a voluntary case to an
involuntary case, under any such law, or consents to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; a party makes any assignment for the benefit
of creditors; a party is unable or fails or admits in writing of its inability
or failure to pay its debts as such debts become due; or the Board of Directors
or other governing body of a party adopts any resolution or otherwise approves
authorization to act upon any of the foregoing, such action shall be deemed a
breach
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
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hereunder.
(iii) If any order, judgment or decree is entered against
decreeing the dissolution or split-up of such party, and such order remains
undischarged or unstated for a period in excess of thirty (30) calendar days,
such action shall be deemed a breach hereunder.
(c) Sections 1,3,7-10,11(c),14,15,16, and 18-20, as well as any
obligation which has accrued prior to any expiration or termination of this
Agreement (including, without limitation, all payments which are or may become
due and payable under Section 5 hereo~ shall survive such expiration or
termination.
12. ASSIGNMENT: Either party hereunder shall have the right to assign its rights
and obligations to a third party which is acquiring all or substantially all of
its assets, or any company with which it may merge or consolidate. In the event
Affiliate sells one or more Systems to a third party other than as part of a
sale of substantially all of its assets or a merger or consolidation as
aforesaid, Affiliate may assign its rights and obligation hereunder with respect
to such affected Systems or Systems to the third party subject to any increase
in Subscriber Access Fees required by WG. Alternatively if either Affiliate or
the proposed assignee are not willing to accept such increase, such assignment
may occur only if WG agrees in writing to maintain the current applicable
Subscriber Access Fees, and in such event WG may require Affiliate to make such
assignment. In the event Affiliate's obligations and rights are assigned
hereunder as a result of a sale of a System, such System shall be stricken from
Exhibit A. In the event of a sale of a System which does not result in an
assignment hereunder, such Systems shall also be stricken from Exhibit A subject
to the return to WG of the applicable WorldGate Platform compenents (i.e., the
headend equipment and the WorldGate Programs.) Except as expressly set forth in
the prior sentence neither party hereunder shall have the right to assign,
transfer or hypothecate its rights and obligations hereunder, without the
other's prior written approval. Any other purported assignment of this
Agreement, shall be deemed null and void.
13. HEADINGS, RELATIONSHIP OF PARTIES: The titles of the paragraphs of this
Agreement are for convenience only and shall not in any way affect the
interpretation of this Agreement. This agreement does not in any way create the
relationship of franchise, joint venture, partnership or agency between WG and
Affiliate, and each shall remain an independent contractor, and as such shall
not act or represent itself, directly or by implication, as agent for the other
or assume or create any obligation of or in the name of the other.
14. NON-WAIVER OF BREACH; REMEDIES CUMULATIVE:
(a) A waiver by either party of any of the terms or conditions of this
Agreement shall not, in any instance, be deemed or construed to be a waiver of
such terms or conditions for the future or of any subsequent breach thereof. No
payment or acceptance thereof under this
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
PAGE 9 OF 22
Agreement shall operate as a waiver of any provision hereof.
(b) All remedies, rights, undertakings, obligations and agreements
contained in this Agreement shall be cumulative and none of them shall be in
limitation of any other remedy, right, undertaking, obligation, or agreement of
either party. IN NO EVENT SHALL EITHER PARTY HEREUNDER BE LIABLE TO THE OTHER
FOR SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION ANY LOST
PROFIT OR INVESTMENT AND THE LIKE), INDIRECT OR INCIDENTAL DAMAGES, BY WAY OF
INDEMNITY OR OTHERWISE.
(c) In no event shall WG be liable for damages(excluding any indemnity
hereunder) in excess of the amounts paid to WG hereunder with respect to the
particular subject matter giving rise to such damages.
15. NOTICES: Except as herein otherwise expressly provided, all notices,
statements and other documents desired or required to be GIVEN hereunder shall
be in writing and shall be GIVEN by personal delivery, certified mail, or fax
(with a copy sent by regular US mail). All notices, statements and other
documents shall be sent to:
If to WG:
<TABLE>
<CAPTION>
<S> <C>
Accounting statements and remittances All other notices should be sent to:
should be sent to:
WORLDGATE COMMUNICATIONS, INC. WORLDGATE COMMUNICATIONS, INC.
3220 Tillman Drive, Suite 300 3220 Tillman Drive, Suite 300
Bensalem, PA 19020 Bensalem, PA 19020
Attn: Accounting Services Attn: Affiliate Administration
</TABLE>
If to Affiliate:
CHARTER COMMUNICATIONS, INC.
12444 Powerscourt Drive - Ste. 400
St. Louis, MO 63131-3660
Attn: Michael A. DeNatale, Vice President-Corporate Development
With a copy to:
Curtis S. Shaw, Senior Vice President and General Counsel, at the above address
(or at such other address as may be designated in writing by either party no
less than thirty (30) days prior to the date of transmission of the notice,
statement, etc.). Notice given by domestic mail shall be deemed given three (3)
days after the date of mailing; Notice given by international mail shall be
deemed given ten (10) days after the date of mailing, notice given by fax shall
be deemed given at the time of dispatch;
<PAGE>
Page 10 of 22
notice given by personal delivery shall be deemed given upon delivery by the
messenger; and notice given by overnight delivery shall be deemed given the
first business day following delivery to the overnight delivery service.
16. GOVERNING LAW:
(a) All matters pertaining to this Agreement (including its
interpretation, validity, performance and breach), in whatever jurisdiction
action may be brought, shall be governed by the laws of Delaware (excluding its
conflict of law provisions) . The parties hereto expressly consent and agree to
submit to the jurisdiction of any court of competent jurisdiction in the State
of Delaware, and to accept service of process outside the State of Delaware in
any matter to be submitted to any such court pursuant hereto.
(b) Wherever there is any conflict between any provision hereof and
any law or requirement with the force of law, this Agreement shall remain valid
and such provision hereof shall be restricted to the extent, and only to the
extent, necessary to bring it within the applicable requirements, unless such
restriction shall have the effect of materially nullifying, or impairing, this
Agreement.
17. FORCE MAJEURE: Neither party shall, in any manner whatsoever, be liable or
otherwise responsible for any delay or default in, or failure of performance
(other than the failure to make payments hereunder) resulting from or arising
out of or in connection with, any "Event of Force Majeure" and no such delay,
default in, or failure of performance shall constitute a breach by either party
hereunder. For purposes of this Agreement, an "Event of Force Majeure" in
respect of a party shall mean any act, cause contingency or circumstances beyond
the control of such party to the extent beyond the control of such other party,
in the nature of (by way of example and not limitation) any governmental action,
nationalization, expropriation, confiscation, seizure, allocation, embargo,
prohibition of import or export of goods or products, regulation, order or
restriction (whether foreign, federal or state), war (whether or not declared),
civil commotion, disobedience or unrest, insurrection, public strike, riot or
revolution, lack of or shortage of, or inability to obtain, any labor,
machinery, materials, fuel, supplies or equipment from economically practical
sources of supply, strike, work stoppage or slowdown, lockout or other labor
dispute, fire, flood, drought, other natural calamity, damage or destruction to
plant and/or equipment, or any other accident, condition, cause, contingency or
circumstance (including, without limitation, acts of God) within or without the
United States beyond the control of such party.
18. CONFIDENTIALITY:
(a) The recipient of any confidential information of the other
hereunder agrees to safeguard the confidentiality of such confidential
information by applying policies and procedures adequate for that purpose,
including without limitation, restricting the disclosure of
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
this confidential information to employees and consultants needing to know the
same for the purpose of this Agreement, provided that Recipient shall have the
obligation and associated liability of ensuring that all such employees and
consultants which gain access to the information hereunder abide by these terms
and conditions of confidentiality. During the term of this Agreement and for a
period of thirty six months thereafter the recipient shall not disclose any such
confidential information to any other person, firm or corporation, or use the
same except for the purpose stated hereinabove, and shall exercise at least the
same degree of care to guard against disclosure or unauthorized use of such
confidential information, as the recipient employs with respect to its own
confidential information, but in no event less than reasonable care. Information
to be disclosed confidentially hereunder shall be fixed in a tangible medium of
expression that is marked "Proprietary" or "Confidential", or if disclosed in
other than a tangible medium of expression, indicated by the disclosing Party as
being "Proprietary" or "Confidential" at the time of disclosure and within
thirty (30) days thereafter summarized by the disclosing Party in a writing to
the recipient, in which writing the confidential information is identified as
"Proprietary" or "Confidential". A tangible medium of expression shall be deemed
to include, by way of example, memoranda, written descriptions, drawings,
photographs, models, prototypes, tapes, disks and circuitry.
(b) The recipient shall have no obligation of confidentiality
hereunder with respect to any information which:
(i) is already properly known to the recipient other than as a
result of a prior confidential disclosure by the disclosing Party;
(ii) is or becomes publicly known otherwise than by the
recipient's (or someone receiving the information from recipient) fault or
breach of this Agreement;
(iii) is rightfully received by the recipient without
restriction from a third party who is not under an obligation of
confidentiality, directly or indirectly, to the disclosing Party.;
(iv) is independently developed by the recipient without
benefit of the confidential information received hereunder;
(v) is approved for release in writing by the disclosing
Party; or
(vi) is disclosed by the recipient pursuant to judicial or
regulatory action, provided that the disclosing party is promptly notified at
the time such action is initiated and the recipient fully cooperates with the
disclosing Party in seeking continued confidential treatment of such information
to the extent possible.
(c) The Parties agree that, except as may be reasonably required by
applicable law, rule, regulation, court order or the like, neither of them shall
publicly divulge or announce, or in any manner disclose to any third party,
other than its attorneys, accountants, parents, and partners, any of the
specific terms and conditions of this Agreement, including without limitation
the Subscriber Access Fees payable hereunder, and the parties further warrant
and agree that none of their officers, directors or employees will do so.
19. PROCEDURE PRIOR TO LITIGATION: Prior to initiating any litigation with
respect to any controversy, claim or dispute arising hereunder or related
hereto, but excluding any claim arising under Sections 3, 10 or 18 of this
Agreement (a "Dispute") a Party must first notify the
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
Page 12 of 22
other Party and request in writing that such Dispute be submitted to an
executive committee consisting of one senior ranking executive named by each of
the Parties for such purpose. Such named executive shall have the authority and
be capable of making binding decisions on behalf of such Party with respect to
such Dispute. Within five (5) business days following the receipt of such notice
(or such other period as may be agreed by the Parties) each Party shall have
named its executive committee participant, and within ten (10) business days
following the receipt of such notice (or such other period as may be agreed by
the Parties) the executive committee shall meet to discuss the Dispute. If the
executive committee is not able to resolve the Dispute within twenty (20)
business days following the receipt of such notice (or such other period as may
be agreed by the Parties), then either Party may proceed with the initiation of
such litigation as may be appropriate.
20. ENTIRE UNDERSTANDING: This Agreement, including the Exhibits identified
herein, sets forth the entire understanding of the parties with respect to the
subject matter hereof, and all prior concurrent oral agreements or all prior
written agreements with respect to such subject matter have been merged herein.
No representations or warranties have been made other than those expressly
provided for herein. This Agreement may not be modified, except by a written
instrument signed by an authorized representative of the parties, and this
provision may not be waived except by written instrument signed by an officer of
the parties. In the event this agreement is translated into any foreign language
counterpart, the English language counterpart shall remain controlling.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE SIGNED AND
ACCEPTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST
WRITTEN ABOVE.
<TABLE>
<S> <C>
Affilliate: Charter Communications, Inc. WorldGate Communications, Inc.
By: /s/ Curtis Shaw By: /s/ Randall J. Gort
Name: Curtis S. Shaw Name: Randall J. Gort
Title: Senior Vice President Title: Vice President
Date: November 7, 1997 Date: November 7, 1997
Tel.: 314-965-0555 x 408 215-633-5116
Fax: 314-965-8793 215-633-9590
</TABLE>
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
Page 13 of 22
EXHIBIT A
TELEVISION DISTRIBUTION SYSTEMS
<TABLE>
<CAPTION>
<S> <C> <C>
SYSTEM NAME MAILING ADDRESS BASIC SUBSCRIBERS
- --------------------------------------------------------------------------------
## ## ##
## ## ##
</TABLE>
Each System identified above must include the following minimum facilities (to
be supplemented as WG subscriber base grows): (a) T-1/internet Access Link in
accordance with WG's requirements (b) Cisco 2501 Router with IP Software (or
approved equivalent) (c) Kentrox D-Serv CSU/DSU (or approved equivalent)
Effective Date: __________ Affiliate Initials: _________ WG Initials: __________
- --------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
PAGE 14 OF 22
EXHIBIT B
WORLDGATE PLATFORM
PLATFORM COMPONENTS AND PRICING
Set forth below are the components of the WorldGate Platform and Affiliate's
price for the same as of the effective date set forth below. Such prices are FOB
WG's factory, and are valid for a period of one-year from this effective date
after which time they are subject to change by WG to reflect current market
conditions and the prices for such products and services then being generally
charged to WG's affiliate customers purchasing the products and services in
similar quantities.
<TABLE>
<CAPTION>
OTHER UNITS - SAME
ITEM FIRST UNIT IN A HEADEND HEADEND
- ---- ----------------------- ------------------
<S> <C> <C>
## ## ##
## ## ##
## ##
## ## ##
</TABLE>
Affiliates will require and shall purchase hereunder one or more Headend
Controllers, as required, for each System identified on Exhibit A of this
Agreement. Except as otherwise agreed by the Parties in writing, the above fees
do not include site surveys or training which will be done on a time and
material basis at WG's customary rates (international locations will also
involve additional travel and per diem charges.) Notwithstanding the use of the
term "purchase" herein, such headend controller(s) and servers as acquired
hereunder includes certain WorldGate and third party software, microcode and
documentation, whether stored in electronic (including firmware), magnetic,
optical or other media (collectively Programs) for which title to and all
proprietary rights in are reserved to WG and its suppliers. All access to and
use of such Programs is subject to the terms and conditions of WG's Software
License attached hereto and incorporated herein as Exhibit B-1.
LIMITED PRODUCT WARRANTY
Upon the installation of the Headend Controller WG will perform the Verification
of Performance procedure as set forth in the attached Exhibit B2 as the same may
be amended from time to time with the mutual agreement of the Parties. Affiliate
will be notified prior to the performance of such procedure and shall
participate in such procedure if it desires. Upon the successful completion of
such procedure the Headend controller will be deemed installed for purposes of
this Agreement. In addition to the warranties set forth in Section 8 of the
Affiliation Agreement, WG warrants that as supplied hereunder and for a period
of twelve months from the installation thereof (but not more than thirteen
months from the delivery thereof) such WorldGate Platform components will
perform under normal use and service substantially in the manner specified in
the applicable published technical specification as published by WG prior to the
execution of this Agreement as set forth in the attached Exhibit B3 (as the same
may be amended from
- ----------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
PAGE 15 OF 22
time to time with the mutual agreement of the parties), and that for this period
the hardware components of the WorldGate Platform will be free from defects in
materials and workmanship. This warranty shall not apply to any items subjected
to accident, misuse, neglect, mishandling or any installation, testing, repair
or alteration by anyone other than WG or its authorized vendors, or any use of
non-approved components in connection with the WG Platform. WG's warranty
hereunder extends to Affiliate and to no other person or entity. This warranty
shall not be enlarged or otherwise affected by, and no obligation or liability
shall arise hereunder by WG's rendering of technical advice, help line support
or service in connection with the products furnished hereunder. Any claims
arising out of the aforesaid warranty must be submitted to, and the affected
components must be returned or otherwise made available to WG in accordance with
its published procedures, during the specified warranty period or within thirty
(30) days of the expiration of such period. Subject to the preceding conditions,
WG will promptly examine such WorldGate Platform components and repair or
replace any such components which are defective with respect to the above
warranty. In the event WG is not able to repair or replace such components as
hereby required, such non-conforming WorldGate Platform components may be
returned to WG and WG will issue a credit for the purchase price of the returned
components, as depreciated over a 5 year period. Any required service, repair or
replacement (and the costs and expenses associated therewith) which are not
covered by the above warranty will be the responsibility of Affiliate and
subject to Affiliate's execution of any required WG service contract and its
payment of WG's customary fees and charges as may be associated therewith, which
shall be no greater than being charged to WG's affiliate customers purchasing
the products and services in similar quantities.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY
WARRANTY HEREUNDER, EXPRESS OR OTHERWISE, IS LIMITED TO THE WARRANTY TERM AND
CONDITIONS AS SET FORTH ABOVE. THE FOREGOING IS NOT INTENDED TO LIMIT OR EXPAND
THE INDEMNITIES AS SET FORTH IN SECTION 9 OF THIS AGREEMENT.
POST WARRANTY MAINTENANCE SUPPORT
WG will make available to Affiliate, at its sole option, post warranty
maintenance support for the WorldGate Platform pursuant to the terms and
conditions of the attached Exhibit B-4
AFFILIATE SUPPORT
WG will provide, at no additional charge to Affiliate, technical support to
Affiliate's customer service and engineering staff, 7 days per week, 24 hours
per day, with such support to be provided by telephone, facsimile and Internet.
Except as is required pursuant to WG's written warranty herein any travel from
WG's facilities will be subject to Affiliate's payment for time and materials at
WG's customary rates, as well as reimbursement for travel and per them charges,
which shall be no greater than being charged to WG's affiliate customers
purchasing the products and services in similar quantities.
- ----------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
Page 16 of 22
PLANT SPARES
WG and Affiliate will cooperate to formulate and implement a reasonable program
for spare parts inventory and replacement and emergency response.
ON SITE TRAINING
Prior to the initial launch of the WorldGate Service at a System WG will conduct
one on site customer service training program for a period not to exceed three
consecutive days. Subsequent to the launch and upon the request of Affiliate, WG
will, at no additional charge, conduct one additional on-site training program
for a period not to exceed two days, at a time to be mutually determined.
Additional training will be available on a time and materials basis at WG's
customary rates, as well as reimbursement for travel and per them charges, which
shall be no greater than being charged to WG's affiliate customers purchasing
the products and services in similar quantities.
SUBSCRIBER SUPPORT
Until December 31, 1998, WG shall make available to WorldGate Subscribers at
domestic United States's locations, a toll-free help line, accessible twenty
four hours per day, seven days per week, to assist WorldGate service
Subscribers with questions relating to their WorldGate Service. Following
December 31, 1998 such help line shall become toll-based. However, at
Affiliate's option, WG will continue to offer a toll-free line provided that
Affiliate pays to WG a monthly support line fee of [information redacted] ##
for each Subscriber within a System in which Affiliate desires to maintain
such toll-free support. Subscribers with questions relating to Affiliate or
Affiliate's Systems will be referred to Affiliate. WG will also provide
on-line help screens for all Subscribers and will use reasonable efforts to
implement e-mail support for Subscribers to the extent economically practical.
CHANNEL HYPERLINKINGSM AND OTHER REVENUE SHARING OPPORTUNITIES
The parties anticipate that the Subscriber Accessible Content will include
opportunities to generate revenue from third parties through Channel
Hyperlinking, advertising, commodity buying/selling, lead generation and
similar services which may be enabled by the WorldGate Platform. The Parties
further recognize that such opportunities may require commitments with
advertising agencies and other third parties as well as administrative,
accounting, and other services and associated costs, fees, and expenses in
order to permit such revenue to be generated. The Parties will work together
to maximize such opportunities. Any net revenue which is generated as a
result of such services as the Parties agree to make available to Subscribers
or any other party as part of the WorldGate Service hereunder will be evenly
shared by WG and Affiliate, after payment of such associated costs, fees, and
expenses, and subject to any required commitments as aforesaid.
Effective Date: __________ Affiliate Initials: __________ WG Initials: _________
- --------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
PAGE 17 OF 22
EXHIBIT B-1
SOFTWARE LICENSE
The terms and provisions of this Exhibit B-I (Software License) provide for the
licensing by WG to Affiliate of certain Programs (as such term is defined in the
Affiliation Agreement) furnished with and to be used either as part of or in
conjunction with the WG Platform to be provided by WG to Affiliate under an
Affiliation Agreement, of which this Exhibit forms a part.
1. GRANT OF LICENSE: WG (hereinafter Licensor) hereby grants to Affiliate
(hereinafter Licensee) and Licensee hereby accepts a personal, nonexclusive
license to use the Programs on the terms and conditions set forth herein and in
the Affiliation Agreement. Except as specifically provided herein and therein,
no interest, right or license, express or implied, is granted.
2. OWNERSHIP RIGHTS: Any reference to sale or purchase not withstanding, title
to the Programs and all copies thereof shall be and remain in Licensor, and no
title to or ownership of the Programs or any portion thereof is conveyed or
transferred to the Licensee. Licensee acknowledges that the Programs constitute
confidential and proprietary information and trade secrets of Licensor, whether
or not the Programs, or any portion thereof, are or may be copyrighted or
copyrightable and/or patented or patentable, and that disclosure of the Programs
to Licensee is on the basis of the confidential relationship between Licensee
and Licensor under this Agreement.
3. RESTRICTION ON TRANSFER: Licensee shall not sell, assign, sub-license,
transfer, or otherwise make available the Programs, in whole or in part, except
as may be permitted by this Software License Agreement and only with written
prior consent by WG.
4. RESTRICTION ON USE, DISASSEMBLY AND REVERSE ENGINEERING: Licensee may use
the Programs solely and exclusively on the computer(s) furnished by WG as part
of the WG Platform sold to Affiliate under terms of the Affiliation Agreement,
except that the Programs may also be temporarily used on or with a compatible
backup computer if the WG Platform computers are inoperative because of
malfunction or during the performance of preventive maintenance or engineering
changes, but only for such reasonable time as required to restore such WG
Platform to operative status. Licensee shall use the Programs only in connection
with its immediate internal operations with respect to the provision to its
customers of the WG Service, and shall not offer nor supply the use of the
Programs to others under any circumstance. Licensee shall not disassemble or
otherwise reverse engineer the Programs unless approved in writing.
5. RESTRICTION ON COPYING: Licensee shall make no copies of the Programs, or
any part thereof, except that Licensee may make only that number of copies as
reasonably required solely for the purposes of backup and archival storage. All
copies shall be clearly marked by Licensee with the same Licensor proprietary
and copyright restrictions which appear on the Programs originally supplied to
Licensee, and be stored by Licensee in a secure manner.
6. RESTRICTION ON DISCLOSURE: Except as expressly permitted herein, or as is
required to be disclosed pursuant to judicial or regulatory action, provided
that Licensor is promptly notified at the time such action is initiated and
Licensee fully cooperates with Licensor in seeking continued confidential
treatment of such information to the extent possible, Licensee shall not
disclose or otherwise make available the Programs, or any portion thereof, to
any third party or to any employee or agent of Licensee who is not of necessity
authorized by Licensee to use the Programs as part of Licensee's provision of
the WG Service.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
PAGE 18 OF 22
Licensee shall take all reasonable steps necessary to ensure the Programs, or
any portions thereof, are not disclosed or otherwise made available by Licensee
(or employees or agents of Licensee) to any third party except as aforesaid.
7. TERMS AND TERMINATION: The term of this License Agreement and the license
granted hereunder shall commence on the date hereof, and shall terminate on the
earlier of. (a) when Licensee ceases to operate or otherwise de-installs or
replaces the WG Platform; or (b) the termination or expiration of the
Affiliation Agreement.
Upon any termination of this Software License Agreement, pursuant to (a)
or (b) above, Licensee shall immediately return the Programs and all copies
thereof to Licensor, and shall, within one (1) month after any such termination
furnish Licensor a written statement certifying that the original and all copies
and extracts (including partial copies and extracts) of the Programs and any
related material received from Licensor or made in connection with such license
have been returned to Licensor or, upon Licensor's written request, destroyed.
Description ______________________________________ Release No. _________________
Effective Date: _________ Affiliate Initials: _________ WG Initials: ___________
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
EXHIBIT B2
Charter High-Level Acceptance Test
1. Install and Monitor WorldGate Headend Equipment
/ / Identify all downstream and upstream channels
/ / Map cable feeds to various allotted Wordgate channels
/ / Install several settop boxes with Television monitors for each
designated Worldgate downstream/upstream channel pair
/ / Setup several initial accounts on system for initial test purposes
/ / Monitor memory and cpu utilization via remote utilities for all
Headend Worldgate components
2. Connection to WorldGate service
/ / For each Worldgate downstream/upstream channel pair connect two
boxes in automatic login/logout mode. Let these boxes run indefinitely
and monitor the appropriate log files for login and logout
information.
/ / Connect several additional boxes to each downstream/upstream channel
pair and perform basic login/logout functions manually
3. Basis Worldgate Functionality per user
/ / Login several users per Worldgate downstream/upstream channel pair
and perform the following basic functions
[INFORMATION REDACTED] ##
<PAGE>
EXHIBIT B2 -- Page 2
4. Analysis and Modifications
/ / Modify system configuration parameters to correct any problems
encountered
/ / Review monitoring utilities and log files for any problem areas;
modify system configuration to address these problem areas
/ / Review system utilization characteristics and modify system
configuration to address any non-optimal setup parameters
/ / Re-execute tests to verify corrections have been implemented
- -------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
EXHIBIT B3
PERFORMANCE SPECIFICATIONS FOR WORLDGATE SYSTEM
1. Downstream data rate:
Aggregate downstream data rate shall be at least 100 kbits/second per
channel (assuming at least 8 lines of VBI used)
2. Upstream Data rate
Aggregate upstream data rate shall be at least 13.98 kbits/second per
channel
3. Number of simultaneous users per downstream channel
Each downstream channel will support at least 8 simultaneous sessions.
4. Number of simultaneous users per upstream channel
Each upstream channel will support at least 8 simultaneous sessions.
5. Packet error immunity
Service will operate satisfactorily in environments with upstream error
rates as poor as 10(-3).
6. Login time
Login response will be under 3 seconds on unimpaired cable plant.
7. Server capacity
Each WorldGate server will have sufficient resources to operate 50
simultaneous sessions.
<PAGE>
Page 19 of 22
EXHIBIT B-4
MAINTENANCE SERVICES PROGRAM
Affiliate may elect, at any time, to enroll in WG's Maintenance Service Program.
Under this program WG will maintain the WorldGate Platform in good working
condition, install any applicable engineering changes and also perform
preventative maintenance with respect to the WorldGate Platform. Such services
will be provided on-site or remotely, and will involve the adjustment, repair
and/or the replacement of WorldGate Platform components, each as is appropriate
in WG's judgement. The current annual fee for such Maintenance Service Program
for domestic U.S. locations is U.S.$5,000 per headend package to be covered
hereunder (Such fee may vary for non-U.S. locations.) WG, however, reserves the
right to increase this fee at any time after the first year of service under
this program, subject to Affiliate's right to terminate service hereunder as set
forth below.
WorldGate's Maintenance Program does not cover items which are normally
construed to be consumables, such as inks, paper and the like, or items not
provided by WG. WorldGate's Maintenance Program also does not cover any failure,
damage or defect related to misuse, mishandling, accident, unsuitable physical
or operating environment, any installation, testing, handling, modification or
repair by other than WG personnel, or any use or connection of the WorldGate
Platform to an item not covered by this program.
In order to provide maintenance service hereunder WG will require, and Affiliate
agrees to provide (1) prompt notification of any problems, (2) cooperation and
assistance in analyzing, confirming and determining the cause of any problem and
in implementing any applicable maintenance procedures, (3) reasonable physical
and electronic access to Affiliate's System and the WorldGate Platforms therein.
Components provided during repair or replacement hereunder may not be new, but
will be in good working order. Any removed components become the property of WG.
WG will endeavor to provide to Affiliate at least two weeks prior notice of its
intent to install any applicable engineering changes. Such engineering changes
shall be installed only at Charter's discretion, provided that WG shall be
relieved from any liabilities associated with Charter's decision to not install
any such engineering change.
Upon Affiliate's election to enroll in WG's Maintenance Service Program, WG will
arrange for an inspection of the applicable WorldGate Platform(s). This
inspection will be waived and the WorldGate Platform will be deemed to be in
good working condition if this Maintenance Service Program becomes effective
immediately upon expiration of the warranty period. If the WorldGate Platform is
not in good working condition, Affiliate may (1) have WG restore the WorldGate
Platform to good working condition at WG's customary rates, as well as
reimbursement for travel and per them charges, or (2) withdraw its request for
enrollment and WG will refund any amounts paid in advance for such WorldGate
Maintenance Program with respect to the applicable WorldGate Platform.
Commencement of such service program for any applicable WorldGate Platform
cannot occur until after WG has determined that such WorldGate Platform is in
good working order. Any election to enroll in the WorldGate Maintenance Program
should be accompanied by the required annual fee as set forth above. If
additional equipment is added to a previously commenced service program, such
equipment will be subject to inspection as aforesaid and once determined by WG
to be in good working condition, shall be covered by such program for the
remainder of the ongoing term of the program, upon payment by Affiliate of the
prorata fee for such enrollment as determined on a 12 calendar month basis.
Affiliate may terminate this Maintenance Service Program for any applicable
WorldGate Platform upon one (1) month's prior written notice to WG, under any of
the following circumstances (1) the applicable WorldGate Platform has been under
the Maintenance Service Program for at least six months; (2) the applicable
WorldGate Platform has been removed from all productive use with Affiliate's
System; or (3) as of the effective date of an increase in the annual fee for the
Maintenance Service Program.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
Page 20 of 22
WG may terminate this Maintenance Service Program for any applicable WorldGate
Platform upon one (1) month's prior written notice if Affiliate elects not to
have installed any applicable engineering changes.
Either Affiliate or WG may terminate service for any WorldGate Platform upon at
least one (1) month's prior written notice if the other does not meet its
obligations under this Agreement and does not cure such failure to meet its
obligations within such period. On any termination of service for a WorldGate
Platform, WG will refund any applicable credit on a prorated basis.
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
PAGE 21 OF 22
EXHIBIT C
MARKETING AND PROMOTION OF THE WORLDGATE SERVICE
The Parties will provide, throughout the term of this Agreement, at least the
following identified activities to market and promote the WorldGate Service:
WG WILL PROVIDE:
fourtimes yearly direct mail campaign to non-WorldGate Subscribers (WG will
supply creative and will provide both printing and bulk delivery for
purchase at WG's cost)
bill stuffers (for purchase at WG's cost)
four times yearly local cable interconnect advertising media buys
four 30 and four 60 second video promotions for use as commercials distributed
yearly
training for customer service representatives
selected print media placement
camera-ready ad mats
four-color quarterly consumer guide (for purchase at WG's cost)
point of sale displays
leave behind piece and on-line tutorial for consumer education
participation in the sponsorship of up to four WG/Charter Subscriber Expos per
year in each System
co-branding opportunities consistent with Pargraphs 2.(d) and 4 of this
Agreement
development, promotion and hosting of an affiliate user group
AFFILIATE WILL PROVIDE:
four times yearly direct mail campaign to non-WorldGate households (Affiliate
will provide mailing lists, address labeling, out-bound postage and return
fulfillment costs)
a minimum of 500 ad avails of 30 second length per month, inserted on
Affiliate's Systems on ad supported channels as agreed between the parties
to be run at times between 6:00 AM to 12:00 PM (midnight local time) --
promoting the WorldGate Service, with WG approved commercials
affidavits verifying above commercials
bill stuffer insertion and mailing in Subscriber billing cycle, three times per
annum.
reasonable use of local origination text-based channels (if available) to
promote WorldGate Services
placement of WG approved 30 and 60 second commercials (or other WG provided
promotional pieces) on Affiliate's PPV promotion channel(s) for regular
rotation for two week intervals, monthly
trained customer service representatives for all WorldGate Services
participation in the sponsorship of up to four WG/Charter Subscriber Expos per
year in each System
Effective Date: __________ Affiliate Initials: __________ WG Initials:__________
WORLDGATE COMMUNICATIONS CONFIDENTIAL
<PAGE>
Page 22 of 22
EXHIBIT DI
SUBSCRIBER ACCESS FEES
The following Subscriber Access Fees shall be payable by Affiliate to WG
hereunder (Any adjustment to the specified Fees herein as may result from
changes in the number of Subscribers shall be applied prospectively and only
after notice to WG of the effective date of such change):
As used herein "WorldGate-Subscribers" for any month shall mean the total month
ending aggregate number of WorldGate Subscribers for the particular month based
on the billing systems monthly financial reports, but subject to any audited
correction.
MONTHLY PER SUBSCRIBER ACCESS FEE FOR WORLDGATE SERVICE (NON-METERED)
<TABLE>
<CAPTION>
SUBSCRIBERS MONTHY FEE
----------- ----------
<S> <C>
1-250,000 ##
250,001 plus ##
</TABLE>
EXHIBIT D2
WORLDGATE RATE CARD FOR MONTHLY PER/SUBSCRIBER ACCESS FEES
<TABLE>
<CAPTION>
SUBSCRIBERS MONTHLY FEE
--------------- -----------
<S> <C>
0-100,000 ##
100,001-200,000 ##
200,001-350,000 ##
350,001-500,000 ##
500,001-750,000 ##
750,001-1,000,000 ##
1,000,000 Plus ##
</TABLE>
Effective Date: ________________ Affiliate Initials: _____________ WG Initials:
WORLDGATE COMMUNICATIONS CONFIDENTIAL
- --------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
Exhibit 10.10
WORLDGATE AFFILIATION AGREEMENT
THIS AGREEMENT DATED 12/8/98, IS BETWEEN PRESTIGE CABLE, INC., WITH ITS
PRINCIPAL PLACE OF BUSINESS AT 406 OLD MILL ROAD, CARTERSVILLE, GA 30120,
(HEREINAFTER REFERRED TO AS "AFFILIATE") AND WORLDGATE COMMUNICATIONS, INC.,
WITH ITS PRINCIPAL PLACE OF BUSINESS AT: 3220 TILLMAN DRIVE, SUITE 300,
BENSALEM, PA 19020 (HEREINAFTER REFERRED TO AS "WG").
AFFILIATE AND WG (COLLECTIVELY THE "PARTIES") HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS:
The following terms, abbreviations and definitions used in this Agreement
shall have the meanings set forth herein below:
(a) "SYSTEM(S)" means Affiliate's television distribution system(s),
including the equipment and facilities directly associated therewith, for the
geographical service areas identified in Exhibit A. Affiliate may, from time to
time, add additional Systems, in which event Affiliate shall provide WG with at
least ninety (90) days advance written notice of any such proposed additions to
the System, and upon the agreement of the Parties with respect to the proposed
additions this Agreement shall be promptly amended to cover the proposed
additions by the execution of supplemental and/or superseding Exhibit A(s)
setting forth the agreed and then current information relevant to such Systems.
(b) "SUBSCRIBER" means a person or entity gaining access to the
WorldGate-SM- Service through Affiliate's System(s).
(c) "SUBSCRIBER ACCESSIBLE CONTENT" means the data, information,
programs, displays, applications and other content (including without
limitation, the Internet) which, from time to time, are provided for access
by Subscribers to the WorldGate-SM- Service. Affiliate acknowledges that
elements of such Subscriber Accessible Content, such as the Internet, may
include materials and information of unreliable, uncertain or even
objectionable origin, nature and/or character, and that WG expressly
disclaims any responsibility for or liability associated with Subscriber's
access to or use of the Subscriber Accessible Content. Affiliate further
acknowledges that Subscriber Accessible Content is dynamic and that the
providers thereof may, from time to time, and for any reason make additions
to, deletions from and otherwise modify Subscriber Accessible Content.
(d) "TERM" means the term of this Agreement which shall commence on the
date hereof, and shall terminate seven (7) years from such date, except if
renewed or terminated earlier as provided herein.
(g) "WORLDGATE-SM- PLATFORM" means the hardware and software components to
be supplied by WG for Affiliate's use in connection with Affiliate's System(s)
to provide Subscriber access to the WorldGate Service hereunder.
(h) "WORLDGATE-SM- SERVICE" means an interactive Internet access service
which utilizes the WorldGate Platform in connection with the Affiliate's
System(s) for addressably transmitting downstream application information
(including Subscriber Accessible Content) to Subscribers in the System's
channels (vertical blanking intervals, full video channels or MPEG data stream)
and, either utilizing separate rf sub-bands of the System's current allocated
spectrum and/or a suitable phone-network based return facility for transmitting
upstream communication.
WorldGate Communications Confidential
<PAGE>
2. AUTHORIZATION OF RIGHTS, WORLDGATE PLATFORM AND SYSTEMS:
(a) During the Term hereof WG authorizes Affiliate to use the WorldGate
Platform to provide the WorldGate Service to Subscribers, and such Subscribers
to have access to and use of the WorldGate Service via the WorldGate Platform in
connection with Affiliate's System, in accordance with the terms and conditions
of this Agreement.
(b) Upon the execution of this Agreement, and from time to time thereafter
as the number of Subscribers increases, Affiliate shall acquire by purchase,
lease or such other acquisition transaction as determined by the Parties, the
components of the WorldGate Platform which WG and Affiliate agree in writing to
be required to offer the WorldGate Service. Certain terms and conditions with
respect to such acquisition, warranty and support of the WorldGate Platform are
set forth in Exhibit B.
(c) Affiliate shall provide suitable Systems as further identified in
Exhibit A. The installation, maintenance and support of such Systems shall be
the sole responsibility of Affiliate and its suppliers. To enable WG to perform
its obligations hereunder Affiliate shall provide to WG (and its contractors)
reasonable physical access (upon advance notice by WG) as well as continuous
electronic access (via electronic means including direct modem and Internet
connections) to such Systems, and to the WorldGate Platforms connected thereto.
3. RESERVATION OF RIGHTS; TRADEMARKS; PROMOTION OF SERVICE:
(a) All licenses, rights and interest in, to and with respect to the
WorldGate Service (including without limitation the Subscriber Accessible
Content,) the elements, parts and derivations thereof (including without
limitation the writings, images, displays, electronic reproductions, user
interfaces, sounds, data, information and other works embodied therein, derived
therefrom or ancillary thereto, and the media of reproduction, performance or
exhibition thereof), as well as the intellectual property rights related
thereto, not specifically granted herein to Affiliate or to Subscribers, shall
be and are expressly and entirely reserved by WG and the applicable providers of
such Subscriber Accessible Content. The rights and licenses granted to Affiliate
and the Subscribers pursuant to this Affiliation Agreement do not include any
right to sublicense any third party, in whole or in part.
(b) Affiliate agrees that it is the essence of this Agreement that,
without the specific written consent of WG, or except as otherwise set forth
herein: (i) the WorldGate Platform shall not be modified by Affiliate in any
manner; (ii) the WorldGate Platform shall not be utilized by Affiliate for any
purpose other than to provide the WorldGate Service; and (iii) Affiliate shall
not authorize any other party to do any of the acts forbidden herein
(collectively, the "Prohibited Acts"). Affiliate shall immediately notify WG
upon the occurrence or likely occurrence of any Prohibited Acts of which it
becomes aware.
(c) The Parties recognize that each other's trademarks and brands are
significant assets of the Party owning the same and that any use of such
trademarks and brands shall only be with the other's prior consent and then only
in a manner consistent with that typically used with quality and valued
trademarks and brands, and intended to promote the good will associated with the
same. Affiliate agrees to prominently display the applicable WG brands in all
external communications promoting Internet access for television such as, but
not limited to, advertisements, commercials, direct mail pieces, bill stuffers,
and price lists. Affiliate agrees to diligently promote the WorldGate Service
with resources and activities which are no less than those generally used to
promote other offerings having a comparable potential customer base, including
participation in such cooperative marketing activities as may be agreed by the
Parties, including without limitation the activities set forth in Exhibit C.
WorldGate Communications Confidential
<PAGE>
4. PAYMENTS, ACCESS FEES AND TAXES:
(a) As consideration for the rights granted and services performed
hereunder with respect to the WorldGate Service, Affiliate shall pay to WG
Subscriber Access Fees as more fully set forth in Exhibit D. Notwithstanding the
required payment of a Subscriber Access Fee as described above, the Parties
agree and acknowledge that Affiliate is free to determine what fees, if any, it
charges its customers with respect to access to the WorldGate Service. All
quotations, prices, fees and monies due thereunder to WG are net of all duties,
franchise fees and taxes (including interest and penalties on any such amounts)
now or hereafter imposed or based upon the licensing, rental, purchase,
shipment, delivery, transmission, exhibition, possession, or use of the
WorldGate Platform, the access to the WorldGate Service and any Subscriber
Accessible Content, or any transfer of technology hereunder, but excluding
however any taxes assessed upon any of WG's income (collectively "Taxes").
Affiliate shall indemnify and hold WG forever harmless from any liability
associated with such Taxes.
(b) Except for Subscriber Access Fees all payments hereunder shall be made
promptly at the net invoice price within thirty (30) days after the receipt of
an invoice for the same. Invoices for equipment purchased shall be provided to
Affiliate upon delivery of such equipment. Interest shall accrue on all amounts
not paid when due at a rate equal to the lesser of twelve (12%) percent per
annum or any maximum rate imposed under applicable laws and regulations.
Payments shall not be deferred or subjected to setoff by Affiliate. Payments may
not be suspended and shall continue during the pendency of any dispute
hereunder. All prices and fees stated herein and all payments to be made to WG
hereunder are expressed in, and shall be made, in the currency of the United
States unless otherwise agreed in writing by the parties. WG reserves the right
to change or limit the amount or duration of any payment credit terms which may
be extended to Affiliate hereunder in the event of any change in the credit
worthiness of Affiliate as determined by WG in its sole discretion.
5. STATEMENTS AND REPORTS: To afford determination and/or verification of
the Subscriber Access Fees due WG shall provide to Affiliate an accounting
statement and report within twenty (20) days after the beginning of each
calendar month in which the WorldGate Service is distributed hereunder. Said
statement shall include the following information to the extent applicable: the
number of Subscribers, the type of Subscriber accounts, the Subscriber usage,
and the total amount due for access to the WorldGate Service hereunder. Such
information may be provided electronically by Affiliate access to computer
terminals associated with the WorldGate Platform and/or in connection with a
third party standard billing interface. Affiliate acknowledges and agrees that
WG will have access to such of Affiliate's records and information relating to
Subscribers as reasonably required to comply with WG's contractual obligations
and to provide such statements and reports as are required hereunder.
6. AUDIT: Affiliate and WG shall keep accurate and complete books and
records of Subscriber accounts and their access to and use of the WorldGate
Service. Subject to the confidentiality provisions contained herein, each of
Affiliate and WG may, not more than once during each calendar year and upon at
least thirty days prior written notice, at its expense and during regular
business hours, have the right to audit all such books and records of the other.
Such audits shall be conducted by a internationally recognized, independent
public accounting firm chosen by the auditing Party on the auditing Party's
behalf. The audited Party agrees to fully cooperate with auditing Party's
representatives and/or designees, and shall provide such representatives and/or
designees with adequate space in which to facilitate any audit of such books
and/or records. If an audit reveals a discrepancy in the amounts owed for the
audit period, WG and Affiliate agree to make prompt adjustments of such accounts
along with any required credits or payments associated therewith.
WorldGate Communications Confidential
<PAGE>
7. REPRESENTATIONS AND WARRANTIES OF THE PARTIES:
(a) Each of the Parties represents and warrants that (i) it has the
authority and power to enter into this Agreement and to perform its obligations
hereunder; and (ii) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
and are deemed to be valid, binding and enforceable obligations.
8. INDEMNIFICATION:
(a) WG shall indemnify Affiliate against (i) any award of damages and
costs made against Affiliate by a final judgment of a court of competent
jurisdiction in any such action, insofar as the same are based on a claim that
the WorldGate Platform infringes any United States patent, and (ii) any
settlements or compromises made by WG as described below. WG shall control the
defense of any such action including appeals, and all of negotiations thereof,
including the right to effect any settlement or compromise. In case the use of
the WorldGate Platform is, in any action, held to constitute such an
infringement and the use thereof is enjoined, WG shall, at its option and
expense (x) procure for Affiliate the right to continue using the WorldGate
Platform, (y) replace or modify the same so that it becomes non-infringing and
performs the same service with substantially the same quality, or (z) authorize
Affiliate to return the effected WorldGate Platform and provide Affiliate with a
refund of the purchase price, less an allowance for past use prorated based upon
the initial term of this Agreement. The above indemnity shall not apply to and
WG shall have no liability for any claim of infringement based on: (1) any use
of other than a current unaltered release of the WorldGate Platform; or (2) any
access to or use of the Subscriber Accessible Content; or (3) any combination or
use of the WorldGate Platform with non-WG hardware, software, methods, processes
or applications, or (4) any use of the WorldGate Platform other than is
authorized herein. The foregoing states the entire liability with respect to
infringement of any intellectual property rights with regard to the WorldGate
Platform.
(b) Affiliate shall indemnify WG against (i) any award of damages and
costs made against WG by a final judgment of a court of competent jurisdiction
in any such action, insofar as the same are based on a claim of infringement
arising out of: (1) any use of other than a current unaltered release of the
WorldGate Platform; or (2) any combination or use of the WorldGate Platform with
non-WG hardware or software, methods, processes, applications, or any Affiliate
sourced or required Subscriber Accessible Content, or (3) any use of the
WorldGate Platform other than is authorized herein, and (ii) any settlements or
compromises made by Affiliate as described below.
(c) In any case in which indemnification is sought hereunder:
(i) The party seeking indemnification shall promptly notify the
other party in writing upon the initiation of any claim or litigation to
which the indemnification relates;
(ii) The party seeking indemnification shall afford the other party
the opportunity to participate in, and, at the option of such other party,
to control, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
(iii) The party seeking indemnification shall fully cooperate with
the reasonable requests of the other party in its participation in, and
control of, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
WorldGate Communications Confidential
<PAGE>
9. TERMINATION AND DEFAULTS:
(a) Either party shall be entitled to terminate this Agreement within one
hundred eighty (180) of the date hereof (the "trial period"), if it determines
that the Subscriber demand for the WorldGate Service is not acceptable. If
Affiliate terminates this Agreement during the trial period as aforesaid and
prior to the expiration of such trial period, but no later than 10 business days
after it's notice of termination, returns to WG the components of the Headend
Package, in working condition, reasonable wear and tear excepted, Affiliate will
receive a refund of the purchase price for such components so returned.
(b) In addition to all of its other rights and remedies at law and in
equity, either party shall be entitled at its option forthwith, upon giving
notice to the other party, to terminate this Agreement and all licenses granted
hereunder, (i) if said other party shall fail to perform any of its obligations
or undertakings required of it hereunder, or shall be in breach of any of its
warranties or representations herein contained, and shall not have cured or
remedied such failure or breach within sixty (60) days of written notification
thereof; provided, however that with respect to any failure to pay Subscriber
Access Fees such cure period shall be reduced to ten (10) business days from the
date of written notification hereunder; (ii) if a party hereunder commences a
voluntary case under Title 11 of the United States Bankruptcy Code as now and
hereafter in effect, or any successor statute, or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or a party consents
to the entry of an order for relief in an involuntary case, or to the conversion
of a voluntary case to an involuntary case, under any such law, or consents to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; a party makes any
assignment for the benefit of creditors; a party is unable or fails or admits in
writing of its inability or failure to pay its debts as such debts become due;
or the Board of Directors or other governing body of a party adopts any
resolution or otherwise approves authorization to act upon any of the foregoing,
such action shall be deemed a breach hereunder; or (iii) if any order, judgment
or decree is entered against decreeing the dissolution or split-up of such
party, and such order remains undischarged or unstated for a period in excess of
thirty (30) calendar days, such action shall be deemed a breach hereunder.
(c) Sections 3,(a), 3(b), 6, 8-12, and 14-16, as well as any obligation
which has accrued prior to any expiration or termination of this Agreement shall
survive such expiration or termination. All outstanding amounts owing hereunder
shall become immediately due and payable in the event of any expiration or
termination of this Agreement.
10. NON-WAIVER OF BREACH; REMEDIES CUMULATIVE; LIMITATION ON DAMAGES:
(a) A waiver by either party of any of the terms or conditions of this
Agreement shall not, in any instance, be deemed or construed to be a waiver of
such terms or conditions for the future or of any subsequent breach thereof. No
payment or acceptance thereof under this Agreement shall operate as a waiver of
any provision hereof.
(b) Except as set forth herein all remedies, rights, undertakings,
obligations and agreements contained in this Agreement shall be cumulative and
none of them shall be in limitation of any other remedy, right, undertaking,
obligation, or agreement of either party. IN NO EVENT SHALL EITHER PARTY
HEREUNDER BE LIABLE TO THE OTHER FOR SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING
WITHOUT LIMITATION ANY LOST PROFIT OR INVESTMENT AND THE LIKE), INDIRECT OR
INCIDENTAL DAMAGES, BY WAY OF INDEMNITY OR OTHERWISE.
(c) In no event shall WG be liable for damages in excess of the amounts
paid to WG hereunder with respect to the particular subject matter giving rise
to such damages.
WorldGate Communications Confidential
<PAGE>
11. NOTICES: Except as herein otherwise expressly provided, all notices,
statements and other documents desired or required to be given hereunder shall
be in writing and shall be given by overnight courier service or other personal
delivery, certified mail, email or fax or other comparable immediate electronic
transmission (with a copy sent by regular U.S. mail). All notices, statements
and other documents shall be sent to:
If to WG:
Accounting statements and All other notices should be sent to:
remittances should be sent to:
WORLDGATE COMMUNICATIONS, INC. WORLDGATE COMMUNICATIONS, INC.
3220 Tillman Drive, Suite 300 3220 Tillman Drive, Suite 300
Bensalem, PA 19020 Bensalem, PA 19020
Attn: Accounting Services Attn: Affiliate Administration
with a copy to the General Counsel
If to Affiliate:
PRESTIGE CABLE, INC.
406 Old Mill Road
Cartersville, GA 30120
Attn:
-------------------
(or at such other address as may be designated in writing by either party no
less than thirty (30) days prior to the date of transmission of the notice,
statement, etc.). Notice given by mail within the contiguous United States shall
be deemed given three (3) days after the date of mailing; Notice given by
international mail shall be deemed given ten (10) days after the date of
mailing, notice given by electronic transmission, courier service or by personal
delivery shall be deemed given upon delivery by the transmission service or
messenger.
12. GOVERNING LAW AND EXPORT RESTRICTIONS: All matters pertaining to this
Agreement (including its interpretation, validity, performance and breach), in
whatever jurisdiction action may be brought, shall be governed by the laws of
the State of Delaware (excluding its conflict of law provisions as well as any
adoption of the Convention on Contracts for the International Sale of Goods and
successors thereto). The parties hereto expressly consent and agree to submit to
the jurisdiction of any court of competent jurisdiction in the State of
Delaware, and to accept service of process outside the State of Delaware in any
matter to be submitted to any such court pursuant hereto. Wherever there is any
conflict between any provision hereof and any law or requirement with the force
of law, this Agreement shall remain valid and such provision hereof shall be
restricted to the extent, and only to the extent, necessary to bring it within
the applicable requirements, unless such restriction shall, in the opinion of
WG, have the effect of materially nullifying, or impairing, this Agreement.
Affiliate shall comply fully with all then current applicable laws and
regulations relating to the export of products and technical data including, but
not limited to, any regulations of the United States Office of Export
Administration.
13. FORCE MAJEURE: Neither party shall, in any manner whatsoever, be
liable or otherwise responsible for any delay or default in, or failure of
performance (other than the failure to make payments hereunder) resulting from
or arising out of or in connection with, any "Event of Force Majeure" and no
such
WorldGate Communications Confidential
<PAGE>
delay, default in, or failure of performance shall constitute a breach by either
party hereunder. For purposes of this Agreement, an "Event of Force Majeure" in
respect of a party shall mean any act, cause contingency or circumstances beyond
the reasonable control of such party, including, without limitation, and to the
extent beyond the control of such other party, any governmental action,
nationalization, expropriation, confiscation, seizure, allocation, embargo,
prohibition of import or export of goods or products, regulation, order or
restriction (whether foreign, federal or state), war (whether or not declared),
civil commotion, disobedience or unrest, insurrection, public strike, riot or
revolution, lack of or shortage of, or inability to obtain, any labor,
machinery, materials, fuel, supplies or equipment from normal sources of supply,
strike, work stoppage or slowdown, lockout or other labor dispute, earthquake,
hurricane, other natural calamity, damage or destruction to plant and/or
equipment, fire or any other accident, condition, cause, contingency or
circumstance (including, without limitation, acts of God) beyond the reasonable
control of such party.
14. CONFIDENTIALITY:
(a) The recipient of any confidential information of the other hereunder
agrees to safeguard the confidentiality of such confidential information by
applying policies and procedures adequate for that purpose, including without
limitation, restricting the disclosure of this confidential information to
employees and consultants needing to know the same for the purpose of this
Agreement, who have agreed in writing to safeguard such confidential information
in a manner consistent with the provisions of this paragraph. The recipient
shall not disclose any such confidential information to any other person, firm
or corporation, or use the same except for the purpose stated hereinabove, and
shall exercise at least the same degree of care to guard against disclosure or
unauthorized use of such confidential information, as the recipient employs with
respect to its own confidential information, but in no event less than
reasonable care.
(b) The recipient shall have no obligation of confidentiality hereunder
with respect to any information which:
(i) is already properly known to the recipient other than as a
result of a prior confidential disclosure by the disclosing Party;
(ii) is or becomes publicly known otherwise than by the recipient's
(or someone receiving the information from recipient) fault or breach of
this Agreement;
(iii) is rightfully received by the recipient without restriction
from a third party who is not under an obligation of confidentiality,
directly or indirectly, to the disclosing Party;
(iv) is independently developed by the recipient without benefit of
the confidential information received hereunder;
(v) is approved for release in writing by the disclosing Party; or
(vi) is required to be disclosed by the recipient pursuant to
judicial or regulatory action, provided that the disclosing party is
promptly notified at the time such action is initiated and the recipient
fully cooperates with the disclosing Party in seeking continued
confidential treatment of such information to the extent possible.
(c) Except as may be reasonably required by applicable law, regulation or
court order, the Parties agree that neither of them shall publicly divulge or
announce, or in any manner disclose to any third party, other than its attorneys
and accountants, any of the specific terms and conditions of this Agreement,
including without limitation the Subscriber Access Fees payable hereunder, and
the parties further warrant and agree that none of their officers, directors or
employees will do so.
WorldGate Communications Confidential
<PAGE>
15. PROCEDURE PRIOR TO LITIGATION: Prior to initiating any litigation with
respect to any controversy, claim or dispute arising hereunder or related
hereto, but excluding any claim arising under Sections 3 or 14 of this Agreement
(a "Dispute") a Party must first notify the other Party and request in writing
that such Dispute be submitted to an executive committee consisting of one
senior ranking executive named by each of the Parties for such purpose. Such
named executive shall have the authority and be capable of making binding
decisions on behalf of such Party with respect to such Dispute. Within five (5)
business days following the receipt of such notice (or such other period as may
be agreed by the Parties) each Party shall have named its executive committee
participant, and within ten (10) business days following the receipt of such
notice (or such other period as may be agreed by the Parties) the executive
committee shall meet to discuss the Dispute. If the executive committee is not
able to resolve the Dispute within twenty (20) business days following the
receipt of such notice (or such other period as may be agreed by the Parties),
then either Party may proceed with the initiation of such litigation as may be
appropriate.
16. MISCELLANEOUS; ENTIRE UNDERSTANDING: The titles of the paragraphs of
this Agreement are for convenience only and shall not in any way affect the
interpretation of this Agreement. This Agreement does not in any way create the
relationship of franchise, joint venture, partnership or agency between WG and
Affiliate, and each shall remain an independent contractor, and as such shall
not act or represent itself, directly or by implication, as agent for the other
or assume or create any obligation of or in the name of the other. This
Agreement will inure to the benefit of and be binding upon the Parties and their
respective representatives, and permitted successors and assignees. This
Agreement, including the Exhibits identified herein, sets forth the entire
understanding of the parties with respect to the subject matter hereof, and all
oral agreements and all prior written agreements with respect to such subject
matter have been merged herein. No representations or warranties have been made
other than those expressly provided for herein. This Agreement may not be
modified, except by a written instrument signed by an authorized representative
of the Parties, and this provision may not be waived except by written
instrument signed by an officer of the Parties. This Agreement may be executed
in any number of counterparts, with each such counterpart deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument. In the event this agreement is translated into any foreign language
counterpart, the English language counterpart shall remain controlling. This
Agreement shall be presumed to have been negotiated and drafted by both Parties
for the purpose of construing any ambiguities hereunder.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE SIGNED AND
ACCEPTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST
WRITTEN ABOVE.
Affiliate: PRESTIGE CABLE, INC. WG
By: /s/ Robert F. Buckfelder By: /s/ Scott B. Campbell
Name: Robert F. Buckfelder Name: Scott B. Campbell
Title: Vice President Title: V.P. Business Development
Date: 11/30/98 Date: 12/8/98
Tel.: 704-663-4617 Tel.: 215-633-5100
Fax: 704-663-0905 Fax: 215-633-9590
WorldGate Communications Confidential
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A
TELEVISION DISTRIBUTION SYSTEMS
SYSTEM NAME LAUNCH DATE APPROX. # OF SUBSCRIBERS
----------- ----------- ------------------------
<S> <C> <C>
Mooresville, NC 12/15/98 34,000
Cartersville, GA 5/1/99 50,000
Westminster, MA 9/1/99 28,000
Fredricksberg, VA 7/1/99 42,000
</TABLE>
Each System identified above must include at least the following minimum
facilities (to be supplemented as Subscriber base grows):
(a) dedicated Internet Access Link - T1 or equivalent with comparable data
rates
(b) Cisco 2501 Router with IP Software (or approved equivalent)
(c) Kentrox D-Serv CSU/DSU (or approved equivalent)
EXHIBIT B
WORLDGATE PLATFORM
PLATFORM COMPONENTS AND PRICING:
Set forth below are standard components of the WorldGate Platform typically used
for a System and the price for the same as of the effective date set forth
below. Such prices are FOB WG's factory, and are valid for a period of ninety
(90) days from this effective date after which time they are subject to change
by WG to reflect current prices.
<TABLE>
<CAPTION>
ITEM FIRST UNIT IN A HEADEND OTHER UNITS - SAME HEADEND
---- ----------------------- --------------------------
<S> <C> <C>
Headend Package (analog) ## ##
Large System Headend Package (analog) ##
Channel HyperLinking Server ##
WorldGate Keyboard* ## ##
* Non-U.S. language keyboards will be quoted separately.
</TABLE>
Custom configuration options are available and will be quoted separately
based upon the results of a site survey and expected Subscriber base. The
purchase price for components of the WorldGate Platform does not include
non-routine and/or non-U.S. surveys and installation which are available on a
time and material basis at WG's customary rates (international locations will
also involve travel and per diem charges.) The purchase price also does not
include any improvements and/or modifications to Affiliate's Systems. In the
event that WG is not able to deliver auto leveling functionality between the
applicable components of the WorldGate Platform and the SA8610 settop cable
box, WG further agrees to reimburse Affiliate, in an amount not to exceed
[information redacted] ## per WorldGate enabled set top box, for Affiliate's
documented incremental settop cable box cost of the WorldGate enabled 8610
settop cable box over the non-WorldGate enabled 8610, for up to an aggregate
of 4000 of such WorldGate enabled settop cable boxes as have been acquired by
Affiliate. The initial Headend Package for Mooresville has already been
delivered and invoiced for a purchase price of [information redacted] ##. WG
will continue to honor the reduced priced for this initial delivery not
withstanding the above.
PROGRAM LICENSE:
Notwithstanding the use of the term "purchase" herein, or any other documents
providing for the acquisition of such WorldGate Platform by Affiliate, the
WorldGate Platform includes certain WorldGate and third party software,
microcode and documentation, whether stored in electronic (including firmware),
magnetic, optical or other media (collectively Programs) for which title to and
all proprietary rights in are reserved to WG and its suppliers. All access to
- ------------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
WorldGate Communications Confidential
<PAGE>
and use of such Programs is subject to the terms and conditions of WG's License
attached hereto and incorporated herein as Exhibit B-1.
LIMITED PRODUCT WARRANTY:
WG hereby warrants that as installed hereunder and for a period of three months
thereafter ( but not more than four months after delivery if there is a delay
between delivery and installation other than as may result from the actions
and/or omissions of WG) such WorldGate Platform components will perform under
normal use and service substantially in the manner specified in the applicable
technical specification as published by WG prior to the execution of this
Agreement, and that for this period the hardware components of the WorldGate
Platform will be free from defects in materials and workmanship. This warranty
shall not apply to any items subjected to accident, misuse, neglect,
mishandling, unsuitable physical or operating environments or any installation,
testing, repair, adjustment or alteration by anyone other than WG or its
authorized vendors, or any use of non-approved components in connection with the
WorldGate Platform. WG's warranty hereunder extends to Affiliate only, and to no
other person or entity. This warranty shall not be enlarged or otherwise
affected by, and no obligation or liability shall arise hereunder by WG's
rendering of technical advice, help line support or service in connection with
the products furnished hereunder. Any claims arising out of the aforesaid
warranty must be submitted to, and the affected components must be returned or
otherwise made available to WG in accordance with its published procedures,
during the specified warranty period. Subject to the preceding conditions, WG
will promptly examine such WorldGate Platform components and repair or replace
any such components which are defective with respect to the above warranty. Any
required service, repair or replacement (and the costs and expenses associated
therewith) which are not covered by the above warranty will be the
responsibility of Affiliate unless covered by an applicable WG service contract.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY
WARRANTY HEREUNDER, EXPRESS OR OTHERWISE, IS LIMITED TO THE WARRANTY TERM AND
CONDITIONS AS SET FORTH ABOVE.
AFFILIATE TECHNICAL SUPPORT:
WG will at no additional charge to Affiliate provide technical support to
Affiliate's customer service and engineering staff, 7 days per week, 24 hours
per day, with such support to be provided by telephone, facsimile and/or the
Internet. Except as is provided by WG pursuant to the terms and conditions of
any applicable service contract or WG's written warranty herein, any required
travel from WG's facilities or support in addition to that provided by
telephone, facsimile or Internet hereunder will require payment for time and
materials at WG's customary rates, as well as reimbursement for travel and per
diem charges.
ON SITE TRAINING:
Prior to the initial launch of the WorldGate Service on Affiliate's Systems WG
will conduct one on site customer service training program of up to 3 days in
duration for domestic U.S. installations. Training for non-U.S. installations as
well as additional training will be available on a time and materials basis at
WG's customary rates, as well as reimbursement for travel, lodging and other per
diem charges.
PLANT SPARES:
WG and Affiliate will cooperate to formulate and implement a recommended program
for spare parts inventory, local maintenance strategy and emergency response.
SUBSCRIBER HELP LINE:
WG shall make available to WorldGate Subscribers for domestic US locations, a
toll-based help line to assist WorldGate service Subscribers with questions
relating to their WorldGate Service. Affiliate shall be responsible for all
other Subscriber support. It is anticipated that initial Subscriber support will
be provided by Affiliate with WG providing second level toll-based to
Subscribers through the above telephone help line.
WorldGate Communications Confidential
<PAGE>
EXHIBIT B-1
LICENSE AGREEMENT TERMS AND CONDITIONS
These terms and conditions provide for the licensing by WorldGate (hereinafter
Licensor) to Licensee of WorldGate(SM) and third party software, microcode and
documentation, whether stored in electronic (including firmware), magnetic,
optical, printed or other media (collectively Programs) for which title to and
all proprietary rights in are reserved to Licensor and its suppliers. These
Programs are being furnished to Licensee as part of a commercial relationship
between Licensee and Licensor for the sole purpose (the "Purpose") of enabling
Licensee's activities assisting Licensor with the promotion, distribution and
use of the WorldGate(SM) Internet access service (the "WorldGate Service") to
its subscribers (the "Customers) as reasonably required for and in accordance
with such relationship.
1. GRANT OF LIMITED LICENSE: Licensor hereby grants to Licensee
(hereinafter Licensee) and Licensee hereby accepts a personal, nonexclusive
license solely to use the Programs on the terms and conditions set forth herein.
Except as specifically provided herein, no interest, right or license, express
or implied, is granted in or to the Programs, and all such other interests,
rights and licenses are hereby reserved.
2. OWNERSHIP RIGHTS: Any reference to sale or purchase not withstanding,
title to the Programs and all copies and derivatives thereof, in whole or in
part, shall be and remain in Licensor and its suppliers, and no title to or
ownership of the Programs or any derivative thereof is conveyed or otherwise
transferred to the Licensee. Licensee acknowledges that the Programs constitute
confidential and proprietary information and trade secrets of Licensor and its
suppliers, whether or not the Programs, or any portion thereof, are or may be
copyrighted or copyrightable and/or patented or patentable, and that the
Programs are being made available to Licensee only on the basis of a
confidential and proprietary relationship between Licensee and Licensor
established as part of the aforesaid commercial relationship for the above
Purpose.
3. RESTRICTION ON TRANSFER: Licensee shall not sell, assign, sub-license or
otherwise transfer the Programs, or any portion thereof to any third party.
4. RESTRICTION ON USE, DISASSEMBLY AND REVERSE ENGINEERING: Licensee may
use the Programs solely and exclusively at Licensee's offices as identified by
Licensee as the ship to location for the Programs and the computer(s) and
associated peripherals (the "WorldGate Platform") furnished by Licensor to
Licensee, as and when provided by Licensor to Licensee. Licensee shall use the
Programs only as part of the operation of the WorldGate Platform to provide the
WorldGate Service to the Customers, and then only in connection with Licensee's
immediate internal operations as reasonably required in accordance with, and in
furtherance of the Purpose set forth above, and shall not otherwise use nor
offer or supply the use of the Programs to others under any circumstance.
Licensee shall not, either directly or through any third party, de-compile,
disassemble or otherwise reverse engineer the Programs.
5. RESTRICTION ON COPYING AND ALTERATION: Licensee shall make no copies
of, alterations to, or other derivatives of the Programs, or any part thereof,
or remove any proprietary and/or copyright legends or restrictions which are in
the Programs originally supplied to Licensee.
6. RESTRICTION ON DISCLOSURE: Licensee shall store the Programs in a
secure manner and make the Programs available only to Licensee's employees who
require access to the same for the above Purpose and who agree to abide by these
terms. Except as expressly permitted herein, Licensee shall not disclose or
otherwise make available the Programs, or any portion thereof, to any third
party or to any other employee or agent of Licensee. Licensee shall take all
reasonable steps necessary to ensure the Programs, and any and all portions,
copies and derivatives thereof, are not disclosed or otherwise made available by
Licensee (or employees or agents of Licensee) to any third party except as
aforesaid.
7. TERM, TERMINATION AND REMEDIES: The term of this License Agreement and
the license granted hereunder shall terminate on the earlier of: (a) the
termination or expiration of the aforesaid commercial relationship with
Licensor or the failure of Licensee to comply with any of the terms and
provisions hereof or of any agreement providing for such relationship, which
failure continues for a period of five (5) days after written notice thereof,
or (b) when Licensee ceases to operate, de-installs or otherwise no longer
requires access to the WorldGate Service or Platform for such Purpose. Upon
termination of this License Agreement all rights to use the Programs shall
terminate and Licensee shall immediately cease all use of the Programs and
return the Programs and all copies thereof, in whole or in part, to Licensor
(or upon Licensor's written request destroy the same,) and furnish Licensor a
written statement certifying that the original and all such copies of the
Programs and any related material received from Licensor or made in
connection with such license have been returned to Licensor or destroyed
pursuant to Licensor's written request. Licensor reserves all rights and
remedies, whether provided by contract, at law, self-help, in equity and/or
otherwise, to enforce it rights under this License Agreement. Licensee
acknowledges and agrees that any breach or threatened breach of this License
Agreement shall cause Licensor irreparable injury for which there may be no
adequate remedy at law, and that in addition to any other remedies available,
Licensor shall be entitled to obtain injunctive relief as well as actual
damages.
WorldGate Communications Confidential
<PAGE>
EXHIBIT C
MARKETING AND PROMOTION OF THE WORLDGATE SERVICE
The Parties will provide, throughout the term of this Agreement, at least the
following identified activities to market and promote the WorldGate Service:
WG WILL PROVIDE:
- - joint press release prior to 12/1/99 of execution of Affiliate Agreement
and Affiliate's system-wide deployment
- - three times yearly direct mail piece; (WG will supply creative and provide
both printing and mail processing for purchase at WG's cost).
- - camera-ready ad slicks for newspaper and cable guide promotion.
- - creative for bill inserts and Point of Purchase displays (for purchase at
WG's cost).
- - four: 30/25:5 second video spots for use as commercials, distributed
annually.
- - WG User Guide available in electronic format.
- - one (1) "Leave Behind" instructional video for subscribers and one (1)
printed generic WG User Guide can be purchased at WG's cost.
- - training for installers and all customer contact personnel.
AFFILIATE WILL PROVIDE:
- - joint press release prior to 12/1/99 of execution of Affiliate Agreement
and Affiliate's system-wide deployment
- - at Affiliate's discretion, send direct mail at least three times per year
to non-WG households in all WG serviceable areas. (Affiliate will provide
mailing lists, address labeling, out-bound postage and return fulfillment
costs.)
- - at Affiliate's discretion, run a minimum of 1000,: 30-second spots on
cable system ad avails with WG approved commercials per month. Ad
insertion to take place on ad supported channels as agreed between
parties, to be run at times between 6:00 AM to 12:00 PM (local time).
- - at Affiliate's discretion, cross-channel affidavits supporting ad
insertion (time and channel) to be submitted to WG quarterly.
- - at Affiliate's discretion, placement of WG approved :30-second commercials
(or other WG provided promotional pieces) on Affiliate's PPV promotion
channel(s), for regular rotation for two-week intervals, monthly.
- - at Affiliate's discretion, WG bill insert or envelope advertisement in or
on cable subscriber monthly billing statement, three times per annum.
- - at Affiliate's discretion, reasonable use of local origination text-based
channels (if available) to promote WG.
- - at Affiliate's discretion, train all customer contact representatives on
all WG Services.
- - at Affiliate's discretion, reasonable promotion of WorldGate Service on
Affiliate's web home page
Effective Date: Affiliate Initials: WG Initials:
----------- ------------- ---------
WorldGate Communications Confidential
<PAGE>
EXHIBIT D
SUBSCRIBER ACCESS FEES
SERVICE ACCESS FEES:
The following WorldGate Service Access Fees are payable by Affiliate to WG on a
monthly basis for each Subscriber having access to the WorldGate Service during
such month (prorated based upon a 30 day month for Subscribers having access to
the WorldGate Service for less than a full calendar month). Various penetration
benchmarks are also set forth which, if achieved, will result in an adjustment
in the particular amount payable for such Service Access Fees. Affiliate's
performance with respect to these benchmarks and the resultant amounts payable
hereunder shall be determined on an aggregate System wide basis based on the
results of all Systems hereunder. Any adjustment in the amount payable for such
Access Fees shall apply only for prospective periods after the benchmarks have
been achieved, and then only after written notice has been provided by Affiliate
to WG providing the details as to such achievement.
For purposes of determining the applicable rate for the Service Access Fees
payable hereunder for the Systems (x) the number of "WorldGate Subscribers" for
any month shall mean the average number of actual Subscribers to the WorldGate
Service for that month and shall include only the Subscribers being invoiced for
and paying the standard retail charge which Affiliate invoices its customers for
the WorldGate Service (Service Access Fees are, however, payable by Affiliate to
WG for all Subscribers receiving access to the WorldGate Service irrespective of
whether such standard retail charge or any payment is made by such Subscribers
to Affiliate), and (y) the number of "WorldGate Capable Customers for any month
shall mean the average number of Affiliate's actual customers (including only
those customers being invoiced for and paying the standard retail charge which
Affiliate invoices for its television programming distribution service) which
during the month had sufficient System architecture and Head-end Package
components of the WorldGate Platform installed and operational to permit such
customer to have become a WorldGate Subscriber, had the customer so chosen, and
(z) the "Penetration for any month shall mean the number of WorldGate
Subscribers divided by the number of WorldGate Capable Customers as determined
above. Monthly averages hereunder shall be determined dividing by two the sum of
the applicable number on the first and last business days of the month.
In addition to the Service Access Fees as set forth below Affiliate shall pay to
WG as Subscriber Access Fees in the event the amount which Affiliate invoices
and/or otherwise charges its customers as part Affiliate's standard monthly
retail price for the WorldGate Service exceeds U.S.$14.95 for an unmetered
service option, an amount equal to thirty-five (35%) percent of such excess.
WORLDGATE PLUS SERVICE:
FOR AFFILIATES OFFERING THE WORLDGATE SERVICE AS AN UNLIMITED USAGE SERVICE ON
AN A' LA CARTE BASIS (INCLUDES AN ALLOTTED USAGE TIME PER SUBSCRIBER PER MONTH
WHICH IS NOT LIMITED IN NUMBER OF HOURS).
Monthly A' La Carte Service Access Fees for Unlimited Service
<TABLE>
<CAPTION>
<S> <C> <C> <C>
WorldGate Capable Customers ## ## ##
System-wide ## ## ##
</TABLE>
CHANNEL HYPERLINKING-SM- AND OTHER REVENUE SHARING OPPORTUNITIES:
The parties anticipate that the Subscriber Accessible Content will include
opportunities to generate revenue from third parties through Channel
HyperLinking, advertising, commodity buying/selling lead generation and similar
services which may be enabled by the WorldGate Platform. The Parties further
recognize that such opportunities may require commitments with advertising
agencies and other third parties as well as administrative, accounting, and
other services and associated costs, fees, and expenses in order to permit such
revenue to be generated. The Parties will
- ------------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
work together to maximize such opportunities. Any net revenue which is generated
as a result of such services as the Parties agree to make available to
Subscribers as part of the WorldGate Service hereunder will be evenly shared by
WG and Affiliate, after payment of such associated costs, fees, and expenses,
and subject to any required commitments as aforesaid.
WorldGate Communications Confidential
<PAGE>
Exhibit 10.11
WORLDGATE AFFILIATION AGREEMENT
THIS AGREEMENT DATED OCTOBER 19, 1998, IS BETWEEN MASSILLON CABLETV, INC., WITH
ITS PRINCIPAL PLACE OF BUSINESS AT 814 CABLE STREET, MASSILLON, OH 44647
(HEREINAFTER REFERRED TO AS "AFFILIATE") AND WORLDGATE COMMUNICATIONS, INC.,
WITH ITS PRINCIPAL PLACE OF BUSINESS AT: 3220 TILLMAN DRIVE, SUITE 300,
BENSALEM, PA 19020 (HEREINAFTER REFERRED TO AS "WG").
AFFILIATE AND WG (COLLECTIVELY THE "PARTIES") HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS:
The following terms, abbreviations and definitions used in this Agreement
shall have the meanings set forth herein below:
(a) " COMMERCIAL ESTABLISHMENT" means non-lodging related public and
private facilities which serve the general public or selected members of the
general public, including government and professional offices and non-lodging
related retail businesses such as stores, but excluding lodging related
businesses such as hotels, resorts and casinos.
(b) "PRIVATE RESIDENCE" means a private, non-transient residential
dwelling unit.
(c) "SYSTEM(S)" means Affiliate's cable television distribution system(s),
including the facilities directly associated therewith, for the geographical
service areas identified in Exhibit A. Affiliate may, from time to time, add
additional Systems, in which event Affiliate shall provide WG with at least
thirty (30) days advance written notice of any such proposed additions to the
System, and upon the agreement of the Parties with respect to the proposed
additions this Agreement shall be promptly amended to cover the proposed
additions by the execution of supplemental and/or superseding Exhibit A(s)
setting forth the agreed and then current information relevant to such Systems.
(d) "SUBSCRIBER" means a Commercial Establishment or Private Residence
gaining access to the WorldGate-SM- Service through Affiliate's System(s).
(e) "SUBSCRIBER ACCESSIBLE CONTENT" means the data, information,
programs, displays, applications and other content (including without
limitation, the Internet) which, from time to time, are provided for access
by Subscribers to the WorldGate-SM- Service. Affiliate and WG acknowledge
that elements of such Subscriber Accessible Content, such as the Internet,
may include materials and information of unreliable, uncertain or even
objectionable origin, nature and/or character, and that Subscriber Accessible
Content is dynamic and that the providers thereof may, from time to time, and
for any reason make additions to, deletions from and otherwise modify
Subscriber Accessible Content.
(f) "TERM" means the term of this Agreement which shall commence on the
date hereof, and shall terminate five (5) years from such date, except if
renewed or terminated earlier as provided herein.
<PAGE>
(g) "WORLDGATE-SM- PLATFORM" means the hardware and software components
to be supplied by WG to Affiliate and used by Affiliate in connection with
Affiliate's System(s) to provide Subscriber access to the WorldGate Service
hereunder.
(h) "WORLDGATE-SM- SERVICE" means an interactive Internet access
service which utilizes the WorldGate Platform in connection with the
Affiliate's System(s) for addressably transmitting downstream application
information (including Subscriber Accessible Content) to Subscribers in the
System's channels (vertical blanking intervals, full video channels or MPEG
data stream) and, either utilizing separate rf sub-bands of the System's
current allocated spectrum and/or a suitable phone-network based return
facility for transmitting upstream communication.
2. AUTHORIZATION OF RIGHTS, WORLDGATE PLATFORM AND SYSTEMS, PROMOTION:
(a) During the Term hereof WG authorizes Affiliate to provide to
Subscribers, and such Subscribers to have, access to and use of the WorldGate
Service, via the WorldGate Platform in connection with Affiliate's System, in
accordance with the terms and conditions of this Agreement. For so long as the
WorldGate Service is provided hereunder as the only offering on the Systems for
Internet on a television, WG will not authorize any other person or entity to
provide the WorldGate Service to the geographic areas directly served by the
Systems.
(b) Upon the execution of this Agreement, and as the Subscriber base
increases thereafter, Affiliate shall acquire by purchase, lease or such other
acquisition transaction as may be agreed in writing by the Parties, the
additional components of the WorldGate Platform to maintain reasonable
performance characteristics for the Service, which Affiliate desires to acquire
to offer the WorldGate Service. The standard configuration components of the
WorldGate Platform as well as certain terms and conditions with respect to such
acquisition as well as the associated warranty and support of the WorldGate
Platform are also set forth in Exhibit B.
(c) Affiliate shall also provide suitable Systems as further described in
Exhibit A. The installation, maintenance and support of such Systems shall be
the sole responsibility of Affiliate and its suppliers. To enable WG to perform
its obligations hereunder Affiliate shall provide to WG (and its contractors)
reasonable physical access (upon advance notice by WG and subject to Affiliate's
security procedures) as well as continuous electronic access (via electronic
means including direct modem and Internet connections) to such Systems, and to
the WorldGate Platforms connected thereto.
(d) The Parties shall diligently promote and market the WorldGate Service
to customers which are or become part of Affiliate's Systems, including without
limitation, by providing such activities as are described in Exhibit D.
3. RESERVATION OF RIGHTS; TRADEMARKS:
(a) All licenses, rights and interest in, to and with respect to the
WorldGate Platform, the WorldGate Service (including without limitation the
Subscriber Accessible Content,) the
<PAGE>
elements, parts and derivations thereof (including without limitation the
writings, images, displays, electronic reproductions, user interfaces, sounds,
data, information and other works embodied therein, derived therefrom or
ancillary thereto, and the media of reproduction, performance or exhibition
thereof), as well as the intellectual property rights related thereto, not
specifically granted herein to Affiliate or to Subscribers, shall be and are
expressly and entirely reserved by WG and the applicable providers of such
Subscriber Accessible Content. The rights and licenses granted to Affiliate and
the Subscribers pursuant to this Affiliation Agreement do not include any right
to sublicense any third party, in whole or in part.
(b) Affiliate agrees that it is the essence of this Agreement that,
without the specific written consent of WG, or except as otherwise set forth
herein: (i) the WorldGate Platform shall not be modified by Affiliate in any
manner; (ii) the WorldGate Platform shall not be utilized by Affiliate for any
purpose other than to provide the WorldGate Service; and (iii) Affiliate shall
not authorize any other party to do any of the acts forbidden herein
(collectively, the "Prohibited Acts"). Affiliate shall immediately notify WG
upon the occurrence or likely occurrence of any Prohibited Acts of which it
becomes aware.
(c) The Parties recognize that each other's trademarks and brands are
significant assets of the Party owning the same and that any use of such
trademarks and brands shall only be with the other's prior consent and then only
in a manner consistent with that typically used with quality and valued
trademarks and brands, and intended to promote the good will associated with the
same. As part of diligently promoting the WorldGate Service, Affiliate agrees to
prominently display the applicable WG brands in all external communications
promoting Internet access for television such as, but not limited to,
advertisements, commercials, direct mail pieces, bill stuffers, and price lists.
4. PAYMENTS, ACCESS FEES AND TAXES:
(a) As consideration for the rights granted and services performed
hereunder with respect to the WorldGate Service, Affiliate shall pay to WG
Subscriber Access Fees as more fully set forth in Exhibit C. Notwithstanding the
required payment of a Subscriber Access Fee as described above, the Parties
agree and acknowledge that Affiliate is free to determine what fees, if any, it
charges its customers with respect to access to the WorldGate Service. All fees
due to WG hereunder are net of all duties, franchise fees and taxes (including
interest and penalties on any such amounts) now or hereafter imposed or based
upon the licensing, rental, purchase, shipment, delivery, transmission,
exhibition, possession, or use of the WorldGate Platform, the access to any
Subscriber Accessible Content, or any transfer of technology hereunder, but
excluding however any taxes assessed upon any of WG's income or personal
property (collectively "Taxes"). Affiliate shall indemnify and hold WG forever
harmless from any liability associated with such Taxes.
(b) Except for Subscriber Access Fees all payments hereunder, including
without limitation the purchase price of the components of the WorldGate
Platform to be acquired shall be made promptly at the net invoice price (i) in
cash before shipment, or (ii) upon written credit approval by WG, within
forty-five (45) days after the receipt of an invoice for the same. The above
notwithstanding, payment for the components of the WorldGate Platform which have
been shipped to Affiliate prior to the execution of this Affiliation Agreement
is due and shall be made on or before November 15, 1998. Subscriber Access Fees
are due within forty-five (45) days of the receipt of invoice for the same.
Interest shall accrue on all amounts not paid when
<PAGE>
due at a rate equal to the lesser of twelve (12%) percent per annum or any
maximum rate imposed under applicable laws and regulations. Payments shall not
be deferred or subjected to setoff by Affiliate, the parties will however
reasonably cooperate to adjust the Subscriber Access Fees to reflect a pro-rata
portion of any credits granted to Subscribers which are not able to receive the
WorldGate Service due to a failure of the WorldGate Platform. Payments may not
be suspended and shall continue during the pendency of any dispute hereunder.
All fees stated herein and all payments to be made to WG hereunder are expressed
in, and shall be made, in the currency of the United States unless otherwise
agreed in writing by the parties. WG reserves the right to change or limit the
amount or duration of any payment credit terms which may be extended to
Affiliate hereunder in the event of any change in the credit worthiness of
Affiliate as determined by WG in its sole discretion.
5. STATEMENTS AND REPORTS: To afford determination and/or verification of
the Subscriber Access Fees due WG shall provide to Affiliate an accounting
statement and report within forty-five (45) days after the beginning of each
calendar month in which the WorldGate Service is distributed hereunder. Said
statement shall include the following information to the extent applicable: the
number of Subscribers, the type of Subscriber accounts, the Subscriber usage,
and the total amount due for access to the WorldGate Service hereunder. Such
information may be provided electronically by Affiliate access to computer
terminals associated with the WorldGate Platform and/or in connection with a
third party standard billing interface. Affiliate acknowledges that WG requires
access to records and information relating to Subscribers in order to provide
such statements and reports and hereby consents to the same.
6. AUDIT: During the term hereof and for a period of one year after any
expiration or termination hereof Affiliate and WG shall keep accurate and
complete books and records of Subscriber accounts and their access to and use of
the WorldGate Service. Subject to the confidentiality provisions contained
herein, each of the Affiliate and WG may, not more than once during each
calendar year and upon at least thirty days prior written notice, at its expense
and during regular business hours, have the right to audit all such books and
records of the other. Such audits shall be conducted by an internationally
recognized, independent public accounting firm chosen by the auditing Party on
the auditing Party's behalf. The audited Party agrees to fully cooperate with
auditing Party's representatives and/or designees, and shall provide such
representatives and/or designees with adequate space in which to facilitate any
audit of such books and/or records. If an audit or checking reveals a
discrepancy in the Subscriber Access Fees owed for the audit period, WG and
Affiliate agree to make prompt adjustments of such accounts along with any
required credits or payments associated therewith. Upon written agreement by the
parties such audit results shall be deemed final and binding upon the parties,
absent evidence of fraud.
7. REPRESENTATIONS AND WARRANTIES OF THE PARTIES:
(a) Each of the Parties represents and warrants that (i) it has the
authority and power to enter into this Agreement and to perform its obligations
hereunder; and (ii) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
and are deemed to be valid, binding and enforceable obligations.
<PAGE>
8. INDEMNIFICATION AND CONTENT RISK ALLOCATION:
(a) WG shall indemnify Affiliate against (i) any award of damages and
costs made against Affiliate by a final judgment of a court of competent
jurisdiction in any such action, insofar as the same are based on a claim that
the WorldGate Platform infringes any United States patent, and (ii) any
settlements or compromises made by WG as described below. WG shall control the
defense of any such action including appeals, and all of negotiations thereof,
including the right to effect any settlement or compromise. In case the use of
the WorldGate Platform is, in any action, held to constitute such an
infringement and the use thereof is enjoined, WG shall, at its option and
expense (x) procure for Affiliate the right to continue using the WorldGate
Platform, (y) replace or modify the same so that it becomes non-infringing and
performs the same service with substantially the same quality, or (z) authorize
Affiliate to return the effected WorldGate Platform and provide Affiliate with a
refund of the purchase price, less an allowance for past use prorated based upon
the initial term of this Agreement. The above indemnity shall not apply to and
WG shall have no liability for any claim of infringement based on: (1) any use
of other than a current unaltered release of the WorldGate Platform; or (2) any
combination or use of the WorldGate Platform with non-WG hardware, software,
information, data or content, or (3) any use of the WorldGate Platform other
than is authorized herein. The foregoing states the entire liability with
respect to infringement of any intellectual property rights with regard to the
WorldGate Platform.
(b) Affiliate shall indemnify WG against (i) any award of damages and
costs made against WG by a final judgment of a court of competent jurisdiction
in any such action, insofar as the same are based on a claim of infringement
arising out of: (1) any use of other than a current unaltered release of the
WorldGate Platform; or (2) any combination or use of the WorldGate Platform with
non-WG hardware or software, or (3) any use of the WorldGate Platform other than
is authorized herein, and (ii) any settlements or compromises made by Affiliate
as described below.
(c) The Parties agree that damages and costs may arise hereunder as a
result of claims and disputes by third parties against one or both of the
Parties with respect to the Subscriber's use of Subscriber Accessible Content,
which is beyond the responsibility and/or control of the Parties. In this regard
the Parties will agree upon and implement terms and conditions for Subscriber
use of the WorldGate Service which require Subscriber's acknowledgment of such
factors as are set forth in Paragraph 1(e) of this Agreement and Subscriber's
agreement that any access to and use of Subscriber Accessible Content is and
will be the sole responsibility of the Subscriber. Subscriber's agreement to
these terms and conditions of use will be a pre-requisite to activating a
Subscriber account. Furthermore, the Parties agree to cooperate in good faith
and to take such actions as are reasonable and consistent with prudent business
practices with respect to the defense and/or settlement of such third party
claims and disputes and the equitable allocation of the resulting damages and
costs, including, without limitation, providing the other prompt notice in
writing of any such claim of which it becomes aware. The Parties acknowledge
that from time to time WG, Affiliate or both Parties may receive notice that
Subscriber Accessible Content is alleged to violate the copyright of one or more
entities ("NCL"). Upon receipt of an NCL, the Party receiving said NCL shall
notify the other Party and both Parties shall take such actions as are
reasonable and consistent with prudent business practices with respect to the
NCL.
(d) In any case in which indemnification is sought hereunder:
<PAGE>
(i) The party seeking indemnification shall promptly notify the
other party in writing upon the initiation of any claim or litigation to
which the indemnification relates;
(ii) The party seeking indemnification shall afford the other party
the opportunity to participate in, and, at the option of such other party,
to control, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
(iii) The party seeking indemnification shall fully cooperate with
the reasonable requests of the other party in its participation in, and
control of, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
9. RENEWAL, TERMINATION AND DEFAULTS:
(a) Upon the expiration of the initial Term hereunder this Agreement shall
be automatically renewed for additional successive two (2) year periods
thereafter unless terminated by either Party upon ninety (90) days written
notice prior to the expiration of such initial Term or any renewal period, as
applicable. The Subscriber Access Fees payable during any renewal period shall
be WG's then current published rates or such other rates as may be agreed by the
parties in writing.
(b) In addition to all of its other rights and remedies at law and in
equity, either party shall be entitled at its option forthwith, upon giving
notice to the other party, to terminate this Agreement and all licenses granted
hereunder, (i) if said other party shall fail to perform any of its obligations
or undertakings required of it hereunder, or shall be in breach of any of its
warranties or representations herein contained, and shall not have cured or
remedied such failure or breach within sixty (60) days of written notification
thereof; provided, however that with respect to any failure to pay Subscriber
Access Fees such cure period shall be reduced to ten (10) business days from the
date of written notification hereunder; (ii) if a party hereunder commences a
voluntary case under Title 11 of the United States Bankruptcy Code as now and
hereafter in effect, or any successor statute, or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or a party consents
to the entry of an order for relief in an involuntary case, or to the conversion
of a voluntary case to an involuntary case, under any such law, or consents to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; a party makes any
assignment for the benefit of creditors; a party is unable or fails or admits in
writing of its inability or failure to pay its debts as such debts become due;
or the Board of Directors or other governing body of a party adopts any
resolution or otherwise approves authorization to act upon any of the foregoing,
such action shall be deemed a breach hereunder; or (iii) if any order, judgment
or decree is entered against decreeing the dissolution or split-up of such
party, and such order remains undischarged or unstated for a period in excess of
thirty (30) calendar days, such action shall be deemed a breach hereunder.
(c) Sections 8-12, and 14-16, as well as any obligation which has accrued
prior to any expiration or termination of this Agreement shall survive such
expiration or termination by a period not to exceed five (5) years from such
expiration or termination. All outstanding amounts owing hereunder shall become
immediately due and payable in the event of any expiration or termination of
this Agreement.
<PAGE>
10. NON-WAIVER OF BREACH; REMEDIES CUMULATIVE; LIMITATION ON DAMAGES:
(a) A waiver by either party of any of the terms or conditions of this
Agreement shall not, in any instance, be deemed or construed to be a waiver of
such terms or conditions for the future or of any subsequent breach thereof. No
payment or acceptance thereof under this Agreement shall operate as a waiver of
any provision hereof.
(b) Except as set forth herein all remedies, rights, undertakings,
obligations and agreements contained in this Agreement shall be cumulative and
none of them shall be in limitation of any other remedy, right, undertaking,
obligation, or agreement of either party. IN NO EVENT SHALL EITHER PARTY
HEREUNDER BE LIABLE TO THE OTHER FOR SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING
WITHOUT LIMITATION ANY LOST PROFIT OR INVESTMENT AND THE LIKE), INDIRECT OR
INCIDENTAL DAMAGES, BY WAY OF INDEMNITY OR OTHERWISE.
(c) In no event shall WG be liable for damages in excess of the amounts
paid to WG hereunder with respect to the particular subject matter giving rise
to such damages.
11. NOTICES: Except as herein otherwise expressly provided, all notices,
statements and other documents desired or required to be given hereunder shall
be in writing and shall be given by overnight courier service or other personal
delivery, email or fax or other comparable immediate electronic transmission
(with a copy sent by regular U.S. mail). All notices, statements and other
documents shall be sent to:
If to WG:
Accounting statements and All other notices should be sent to:
remittances should be sent to:
WORLDGATE COMMUNICATIONS, INC. WORLDGATE COMMUNICATIONS, INC.
3220 Tillman Drive, Suite 300 3220 Tillman Drive, Suite 300
Bensalem, PA 19020 Bensalem, PA 19020
Attn: Accounting Services Attn: Affiliate Administration
with a copy to the General Counsel
If to Affiliate:
MASSILLON CABLETV, INC.
814 Cable Court NW
Massillon, OH 44647
Attn: Mr. Bob Gessner
(or at such other address as may be designated in writing by either party no
less than thirty (30) days prior to the date of transmission of the notice,
statement, etc.). Notice given by electronic transmission, courier service or by
personal delivery shall be deemed given upon delivery by the transmission
service or messenger.
<PAGE>
12. GOVERNING LAW AND EXPORT RESTRICTIONS: All matters pertaining to this
Agreement (including its interpretation, validity, performance and breach), in
whatever jurisdiction action may be brought, shall be governed by the laws of
the State of Delaware (excluding its conflict of law provisions). The parties
hereto expressly consent and agree to submit to the jurisdiction of any court of
competent jurisdiction in the State of Delaware, and to accept service of
process outside the State of Delaware in any matter to be submitted to any such
court pursuant hereto. Wherever there is any conflict between any provision
hereof and any law or requirement with the force of law, this Agreement shall
remain valid and such provision hereof shall be restricted to the extent, and
only to the extent, necessary to bring it within the applicable requirements,
unless such restriction shall, in the opinion of WG, have the effect of
materially nullifying, or impairing, this Agreement. Affiliate shall comply
fully with all then current applicable laws and regulations relating to the
export of products and technical data including, but not limited to, any
regulations of the United States Office of Export Administration.
13. FORCE MAJEURE: Neither party shall, in any manner whatsoever, be
liable or otherwise responsible for any delay or default in, or failure of
performance (other than the failure to make payments hereunder) resulting from
or arising out of or in connection with, any "Event of Force Majeure" and no
such delay, default in, or failure of performance shall constitute a breach by
either party hereunder. For purposes of this Agreement, an "Event of Force
Majeure" in respect of a party shall mean any act, cause contingency or
circumstances beyond the reasonable control of such party, including, without
limitation, and to the extent beyond the control of such other party, any
governmental action, nationalization, expropriation, confiscation, seizure,
allocation, embargo, prohibition of import or export of goods or products,
regulation, order or restriction (whether foreign, federal or state), war
(whether or not declared), civil commotion, disobedience or unrest,
insurrection, public strike, riot or revolution, lack of or shortage of, or
inability to obtain, any labor, machinery, materials, fuel, supplies or
equipment from normal sources of supply, strike, work stoppage or slowdown,
lockout or other labor dispute, earthquake, hurricane, other natural calamity,
damage or destruction to plant and/or equipment, fire or any other accident,
condition, cause, contingency or circumstance (including, without limitation,
acts of God) within or without the United States beyond the reasonable control
of such party.
14. CONFIDENTIALITY:
(a) The recipient of any confidential information of the other hereunder
agrees to safeguard the confidentiality of such confidential information by
applying policies and procedures adequate for that purpose, including without
limitation, restricting the disclosure of this confidential information to
employees and consultants needing to know the same for the purpose of this
Agreement, who have agreed in writing to safeguard such confidential information
in a manner consistent with the provisions of this paragraph. The recipient
shall not disclose any such confidential information to any other person, firm
or corporation, or use the same except for the purpose stated hereinabove, and
shall exercise at least the same degree of care to guard against disclosure or
unauthorized use of such confidential information, as the recipient employs with
respect to its own confidential information, but in no event less than
reasonable care.
<PAGE>
(b) The recipient shall have no obligation of confidentiality hereunder
with respect to any information which:
(i) is already properly known to the recipient other than as a
result of a prior confidential disclosure by the disclosing Party;
(ii) is or becomes publicly known otherwise than by the recipient's
(or someone receiving the information from recipient) fault or breach of
this Agreement;
(iii) is rightfully received by the recipient without restriction
from a third party who is not under an obligation of confidentiality,
directly or indirectly, to the disclosing Party;
(iv) is independently developed by the recipient without benefit of
the confidential information received hereunder;
(v) is approved for release in writing by the disclosing Party; or
(vi) is required to be disclosed by the recipient pursuant to
judicial or regulatory action, provided that the disclosing party is
promptly notified at the time such action is initiated and the recipient
fully cooperates with the disclosing Party in seeking continued
confidential treatment of such information to the extent possible.
(c) Except as may be reasonably required by applicable law, regulation or
court order, the Parties agree that neither of them shall publicly divulge or
announce, or in any manner disclose to any third party, other than its attorneys
and accountants, any of the specific terms and conditions of this Agreement,
including without limitation the Subscriber Access Fees payable hereunder, and
the parties further warrant and agree that none of their officers, directors or
employees will do so.
15. PROCEDURE PRIOR TO LITIGATION: Prior to initiating any litigation with
respect to any controversy, claim or dispute arising hereunder or related
hereto, but excluding any claim arising under Sections 3 or 14 of this Agreement
(a "Dispute") a Party must first notify the other Party and request in writing
that such Dispute be submitted to an executive committee consisting of one
senior ranking executive named by each of the Parties for such purpose. Such
named executive shall have the authority and be capable of making binding
decisions on behalf of such Party with respect to such Dispute. Within five (5)
business days following the receipt of such notice (or such other period as may
be agreed by the Parties) each Party shall have named its executive committee
participant, and within ten (10) business days following the receipt of such
notice (or such other period as may be agreed by the Parties) the executive
committee shall meet to discuss the Dispute. If the executive committee is not
able to resolve the Dispute within twenty (20) business days following the
receipt of such notice (or such other period as may be agreed by the Parties),
then either Party may proceed with the initiation of such litigation as may be
appropriate.
16. MISCELLANEOUS; ENTIRE UNDERSTANDING: The titles of the paragraphs of
this Agreement are for convenience only and shall not in any way affect the
interpretation of this Agreement. This Agreement does not in any way create the
relationship of franchise, joint venture, partnership or agency between WG and
Affiliate, and each shall remain an independent contractor, and as such shall
not act or represent itself, directly or by implication, as agent for the other
or assume or create any obligation of or in the name of the other. This
Agreement will inure to the benefit of and be binding upon the Parties and their
respective representatives, and permitted successors and assignees. This
Agreement, including the Exhibits identified herein, sets forth the entire
understanding of the parties with respect to the subject matter hereof, and all
oral agreements and all prior written agreements with respect to such subject
matter have been merged herein. No representations or warranties have been
<PAGE>
made other than those expressly provided for herein. This Agreement may not be
modified, except by a written instrument signed by an authorized representative
of the parties, and this provision may not be waived except by written
instrument signed by an officer of the parties. This Agreement may be executed
in any number of counterparts, with each such counterpart deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument. In the event this agreement is translated into any foreign language
counterpart, the English language counterpart shall remain controlling. This
Agreement shall be presumed to have been negotiated and drafted by both Parties
for the purpose of construing any ambiguities hereunder.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE SIGNED AND
ACCEPTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST
WRITTEN ABOVE.
Affiliate: MASSILLON CABLETV, INC. WG
By: /s/ Robert Gessner By: /s/ Peter Mondics
Name: Robert Gessner Name: Peter Mondics
Title: VP Title: VP
Date: 11/2/98 Date: 11/13/98
Tel.: 330-833-5509 Tel.: 215-633-5100
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A
TELEVISION DISTRIBUTION SYSTEMS
SYSTEM NAME MAILING ADDRESS BASIC SUBSCRIBERS
----------- --------------- -----------------
<S> <C> <C>
Massillon Cable, TV Inc. Box 1000, Massillon, OH 44648-1000 30,000
Clear Picture, Inc Box 917, Wooster, OH 44691,0917 15,000
</TABLE>
Each System identified above must include at least the following minimum
facilities (to be supplemented as the Subscriber base grows):
(a) dedicated Internet Access Link - T1 or equivalent with comparable data
rates
(b) Cisco 2501 Router with IP Software (or approved equivalent)
(c) Kentrox D-Serv CSU/DSU (or approved equivalent)
EXHIBIT B
WORLDGATE PLATFORM
PLATFORM COMPONENTS AND PRICING:
Set forth below are the standard components of the WorldGate Platform and the
price for the same as of the effective date set forth below. Such prices are FOB
WG's factory, and are valid for a period of one-year from this effective date
after which time they are subject to change by WG to reflect current market
conditions, provided that WG represents that such prices as WG will charge
Affiliate for these standard components will be no less favorable than those
contemporaneously charged to like affiliates under terms and conditions
comparable to those set forth herein.
<PAGE>
<TABLE>
<CAPTION>
ITEM FIRST UNIT IN A HEADEND OTHER UNITS - SAME HEADEND
---- ----------------------- --------------------------
<S> <C> <C>
Headend Package (analog) ## ##
Large System Headend Package (analog) ## ##
Channel HyperLinking Server ## ##
WorldGate Keyboard* ## ##
* Non-U.S. language keyboards will be quoted separately.
</TABLE>
Custom configuration options are available and will be quoted separately if
required based upon the results of a site survey and expected Subscriber base.
The above prices do not include site surveys and installation which are
available on a time and material basis at WG's customary rates (plus travel and
per diem charges.) The above prices do not include any improvements and/or
modifications to Affiliate's Systems. Notwithstanding the use of the term
"purchase" herein, such WorldGate Platform as acquired hereunder includes
certain WorldGate and third party software, microcode and documentation, whether
stored in electronic (including firmware), magnetic, optical or other media
(collectively Programs) for which title to and all proprietary rights in are
reserved to WG and its suppliers. All access to and use of such Programs is
subject to the terms and conditions of WG's Software License attached hereto and
incorporated herein as Exhibit B-1.
LIMITED PRODUCT WARRANTY:
WG hereby warrants that as installed hereunder and for a period of twelve months
thereafter ( but not more than thirteen months after delivery if there is a
delay between delivery and installation other than as may result from the
actions and/or omissions of WG) such WorldGate Platform components will perform
under normal use and service substantially in the manner specified in the
current applicable published technical specification as issued by WG prior to
the execution of this Agreement, and that for this period the hardware
components of the WorldGate Platform will be free from defects in materials and
workmanship. This warranty shall not apply to any items subjected to accident,
misuse, neglect, mishandling, unsuitable physical or operating environments or
any installation, testing, repair, adjustment or alteration by anyone other than
WG or its authorized vendors, or any use of non-approved components in
connection with the WorldGate Platform. WG's warranty hereunder extends to
Affiliate only, and to no other person or entity. This warranty shall not be
enlarged or otherwise affected by, and no obligation or liability shall arise
hereunder by WG's rendering of technical advice, help line support or service in
connection with the products furnished hereunder. Any claims
- ------------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
arising out of the aforesaid warranty must be submitted to, and the affected
components must be returned or otherwise made available to WG in accordance with
its published procedures, during the specified warranty period. Subject to the
preceding conditions, WG will promptly examine such WorldGate Platform
components and repair or replace any such components which are defective with
respect to the above warranty. Any required service, repair or replacement (and
the costs and expenses associated therewith) which are not covered by the above
warranty will be the responsibility of Affiliate unless covered by an applicable
WG service contract.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY
WARRANTY HEREUNDER, EXPRESS OR OTHERWISE, IS LIMITED TO THE WARRANTY TERM AND
CONDITIONS AS SET FORTH ABOVE.
AFFILIATE TECHNICAL SUPPORT:
WG will at no additional charge to Affiliate provide technical support to
Affiliate's customer service and engineering staff, 7 days per week, 24 hours
per day, with such support to be provided by telephone, facsimile and/or the
Internet. Except as is provided by WG pursuant to the terms and conditions of
any applicable service contract or WG's written warranty herein, any required
travel from WG's facilities or support in addition to that provided by
telephone, facsimile or Internet hereunder will require payment for time and
materials at WG's customary rates, as well as reimbursement for travel and per
diem charges.
ON SITE TRAINING:
Prior to the initial launch of the WorldGate Service on Affiliate's Systems WG
will conduct one on site technical and customer service training program of up
to 3 days in duration. Additional training will be available on a time and
materials basis at WG's customary rates, as well as reimbursement for travel,
lodging and other per diem charges.
PLANT SPARES:
WG and Affiliate will cooperate to formulate and implement a recommended program
for spare parts inventory, local maintenance strategy and emergency response.
SOFTWARE RELEASES AND UPGRADES:
WG shall provide at no additional cost to Affiliate such bug fixes and other
software releases as it makes available without charge to its other affiliates,
and will use commercially reasonable efforts to notify Affiliate when it becomes
aware of such bugs.
<PAGE>
EXHIBIT B-1
SOFTWARE LICENSE
The terms and provisions of this Exhibit B-1 (Software License) provide for the
licensing by WG to Affiliate of certain Programs (as such term is defined in the
Affiliation Agreement) furnished with and to be used either as part of or in
conjunction with the WorldGate Platform to be provided by WG to Affiliate under
an Affiliation Agreement, of which this Exhibit forms a part.
1. GRANT OF LICENSE: WG (hereinafter Licensor) hereby grants to Affiliate
(hereinafter Licensee) and Licensee hereby accepts a personal, nonexclusive
license to use the Programs on the terms and conditions set forth herein and in
the Affiliation Agreement. Except as specifically provided herein and therein,
no interest, right or license, express or implied, is granted, and such other
interests, rights and licenses are hereby reserved.
2. OWNERSHIP RIGHTS: Any reference to sale or purchase not withstanding, title
to the Programs and all copies and derivatives thereof shall be and remain in
Licensor, and no title to or ownership of the Programs or any derivative or
portion thereof is conveyed or transferred to the Licensee. Licensee
acknowledges that the Programs constitute confidential and proprietary
information and trade secrets of Licensor, whether or not the Programs, or any
portion thereof, are or may be copyrighted or copyrightable and/or patented or
patentable, and that disclosure of the Programs to Licensee is on the basis of
the confidential relationship between Licensee and Licensor under this
Agreement.
3. RESTRICTION ON TRANSFER: Licensee shall not sell, assign, sub-license,
transfer, or otherwise make available the Programs, in whole or in part, except
as may be permitted by this Software License Agreement.
4. RESTRICTION ON USE, DISASSEMBLY AND REVERSE ENGINEERING: Licensee may use the
Programs solely and exclusively on the computer(s) and associated peripherals
furnished by WG as part of the WorldGate Platform sold to Affiliate under terms
of the Affiliation Agreement, except that the Programs may also be temporarily
used on or with a compatible backup computer and associated peripherals if the
WorldGate Platform computers and associated peripherals are inoperative because
of malfunction or during the performance of preventive maintenance or
engineering changes, but only for such reasonable time as required to restore
such WorldGate Platform to operative status. Licensee shall use the Programs
only in connection with its immediate internal operations with respect to the
provision to its customers of the WorldGate Service as authorized by the
Affiliation Agreement, and shall not otherwise use nor offer or supply the use
of the Programs to others under any circumstance. Licensee shall not de-compile,
disassemble or otherwise reverse engineer the Programs.
5. RESTRICTION ON COPYING: Licensee shall make no copies (including any
derivatives) of the Programs, or any part thereof, except that Licensee may make
one (1) copy of the Program solely for the purposes of backup and archival
storage. All copies shall be clearly marked by Licensee with the same Licensor
proprietary and copyright restrictions which appear on the Programs originally
supplied to Licensee, and be stored by Licensee in a secure manner.
6. RESTRICTION ON DISCLOSURE: Except as expressly permitted herein, Licensee
shall not disclose or otherwise make available the Programs, or any portion
thereof, to any third party or to any employee or agent of Licensee who is not
of necessity reasonably authorized by Licensee to access and use the Programs as
part of Licensee's provision of the WorldGate Service. Licensee shall take all
reasonable steps necessary to ensure the Programs, or any portions, copies or
derivatives thereof, are not disclosed or otherwise made available by Licensee
(or employees or agents of Licensee) to any third party except as aforesaid.
7. TERMS AND TERMINATION: The term of this License Agreement and the license
granted hereunder shall commence on the date hereof, and shall terminate on the
earlier of: (a) when Licensee ceases to offer the WorldGate Service or when
Licensee ceases to operate or de-installs the WorldGate Platform; or (b) the
termination or expiration of the Affiliation Agreement or the failure of
Licensee to comply with any of the terms and provisions hereof or of the
Affiliation Agreement (including without limitation, the failure to pay any fees
when due), which failure continues for a period of ten (10) days after written
notice thereof.
Upon termination of this Software License Agreement all rights to use the
Programs shall terminate and Licensee shall immediately cease use of the
Programs, and shall, within one (1) month after any such termination return the
<PAGE>
Programs and all copies thereof to WG (or upon WG's written request destroy the
same,) and furnish WG a written statement certifying that the original and all
copies and extracts (including partial copies and extracts) of the Programs and
any related material received from WG or made in connection with such license
have been returned to WG, or destroyed pursuant to WG's written request. WG
reserves all rights and remedies, whether provided by contract, at law, in
equity and/or otherwise, to enforce it rights under this license. Licensee
acknowledges and agrees that any breach or threatened breach of this software
license shall cause WG irreparable injury for which there may be no adequate
remedy at law, and that in addition to any other remedies available, WG shall be
entitled to obtain injunctive relief as well as actual damages.
<TABLE>
<CAPTION>
<S> <C> <C>
Effective Date: October 19, 1998 Affiliate Initials: /s/ unintelligible WG Initials: /s/ unintelligble
</TABLE>
<PAGE>
EXHIBIT C
SUBSCRIBER ACCESS FEES
SERVICE ACCESS FEES FOR PRIVATE RESIDENCES:
The following WorldGate Service Access Fees are payable by Affiliate to WG on a
monthly basis for each Private Residence having access to the WorldGate Service
during such month (prorated based upon a 30 day month for Private Residences
having access to the WorldGate Service for less than a full calendar month). The
table set forth below includes various benchmarks which, if achieved, will
result in an adjustment in the particular amount payable for such Access Fees.
Affiliate's performance with respect to these benchmarks and the resultant
amounts payable hereunder shall be determined on an aggregate System wide basis
based on the results of all Systems hereunder. Any adjustment in the amount
payable for such Access Fees shall apply only for prospective periods after the
benchmarks have been achieved, and then only after written notice has been
provided by Affiliate to WG providing the details as to such achievement.
For purposes of determining the applicable rate for the Service Access Fees
payable hereunder for the Systems (x) the number of "WorldGate Private
Residences" for any month shall mean the average number of actual Private
Residences to the WorldGate Service for that month and shall include only the
Private Residences being invoiced for and paying the standard retail charge
which Affiliate invoices its customers for the WorldGate Service (Service Access
Fees are, however, payable by Affiliate to WG for all Private Residences
receiving access to the WorldGate Service irrespective of whether such standard
retail charge or any payment is made by such Private Residences to Affiliate),
and (y) the number of AWorldGate Capable Customers for any month shall mean the
average number of Affiliate's actual customers (including only those customers
being invoiced for and paying the standard retail charge which Affiliate
invoices for its television programming distribution service) which during the
month had sufficient System architecture and Head-end Package components of the
WorldGate Platform installed and operational to permit such customer to have
become a WorldGate Private Residence, had the customer so chosen, and (z) the
APenetration for any month shall mean the number of WorldGate Private Residences
divided by the number of WorldGate Capable Customers as determined above.
Monthly averages hereunder shall be determined dividing by two the sum of the
applicable number on the first and last business days of the month.
FOR AFFILIATES OFFERING THE WORLDGATE SERVICE AS AN UNLIMITED USAGE SERVICE ON
AN A' LA CARTE BASIS (INCLUDES AN ALLOTTED USAGE TIME PER SUBSCRIBER PER MONTH
WHICH IS NOT LIMITED IN NUMBER OF HOURS).
[INFORMATION REDACTED] ##
In addition to the Service Access Fees as set forth above Affiliate shall pay
to WG as Private Residence Access Fees in the event the amount which
Affiliate invoices and/or otherwise charges its customers as part Affiliate's
standard monthly retail price for the WorldGate Service exceeds U.S. ## for
an unmetered service, an amount equal to [INFORMATION REDACTED] ## percent of
such excess. For purposes of this paragraph such standard retail prices shall
be determined using the currency exchange rate specified in the Wall Street
Journal on the last business day prior to the month in question. [INFORMATION
REDACTED] ##
SERVICE ACCESS FEES FOR NON-PRIVATE RESIDENCES:
In the event that Affiliate provides the WorldGate Service to Commercial
Establishments Affiliate shall pay to WG on a monthly basis as Commercial
Establishment Access Fees an amount equal to [INFORMATION REDACTED] ##.
- ---------------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
OTHER TRANSACTIONAL REVENUE OPPORTUNITIES:
The parties anticipate that the Subscriber Accessible Content will include
opportunities to generate revenue from third parties through Channel
HyperLinking, advertising, commodity buying/selling, lead generation and similar
services, whether through direct hits or click-throughs (collectively
"Transactions") which may be facilitated by the WorldGate Platform. The Parties
further recognize that such opportunities may require commitments with
advertising agencies and other third parties as well as administrative,
accounting, and other services and associated costs, fees, and expenses in order
to permit such revenue to be generated. The Parties will work together to
maximize such opportunities. Any net revenue which is generated as a result of
such services as the Parties agree to make available to Subscribers as part of
the WorldGate Service hereunder will be shared as follows by WG and Affiliate,
after payment of such associated costs, fees, and expenses, and subject to any
required commitments as aforesaid.
Fees and other consideration generated through Transactions facilitated by the
use of the WorldGate Service, but other than through the use of Channel
HyperLinking, will be [REMAINDER OF PARAGRAPH REDACTED]##
Fees and other consideration generated through Transactions facilitated by
Channel HyperLinking will be [INFORMATION REDACTED] ##.
- ---------------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
EXHIBIT D
MARKETING AND PROMOTION OF THE WORLDGATE SERVICE
The Parties will provide, throughout the term of this Agreement, at least the
following identified activities to market and promote the WorldGate Service:
WG WILL PROVIDE:
- four times yearly direct mail campaign to non-WorldGate Subscribers
(WG will supply creative and will provide both printing and bulk
delivery for purchase at WG's cost)
- bill stuffers (for purchase at WG's cost)
- four times yearly local cable interconnect advertising media buys
- four 30 and four 60 second video promotions for use as commercials,
distributed yearly
- training for customer service representatives
- selected print media placement
- camera-ready ad mats
- four-color quarterly consumer guide (for purchase at WG's cost)
- point of sale displays
- leave behind piece and on-line tutorial for consumer education
AFFILIATE WILL PROVIDE:
- four times yearly direct mail campaign to non-WorldGate households
(Affiliate will provide mailing lists, address labeling, out-bound
postage and return fulfillment costs)
- a minimum of 500 ad avails promoting the WorldGate Service with WG
approved commercials of either 30 or 60 second length per month,
inserted on Affiliate's Systems on ad supported channels as agreed
between the parties, to be run at times between 6:00 AM to 12:00 PM
(midnight local time)
- affidavits verifying above commercials
- bill stuffer insertion and/or envelope advertising and mailing in
Subscriber billing cycle, three times per annum
- reasonable use of local origination text-based channels (if
available) to promote WorldGate Services
- placement of WG approved 30 and 60 second commercials (or other WG
provided promotional pieces) on Affiliate's PPV promotion
channel(s), for regular rotation for two week intervals, monthly
- trained customer service representatives for all WorldGate Services
- reasonable promotion of WorldGate Service on Affiliate's web home
page
<TABLE>
<CAPTION>
<S> <C> <C>
Effective Date: October 19, 1998 Affiliate Initials: /s/ unintellibible WG Initials: /s/ unintelligbile
</TABLE>
<PAGE>
Exhibit 10.13
WORLDGATE AFFILIATION AGREEMENT
THIS AGREEMENT DATED _________________, IS BETWEEN CITY OF TACOMA, TACOMA
PUBLIC UTILITIES, DBA CLICK! NETWORK , WITH ITS PRINCIPAL PLACE OF BUSINESS
AT 3628 SOUTH 35TH STREET, TACOMA, WA 98411-0007 , (HEREINAFTER REFERRED TO
AS "AFFILIATE") AND WORLDGATE COMMUNICATIONS, INC., WITH ITS PRINCIPAL PLACE
OF BUSINESS AT: 3220 TILLMAN DRIVE, SUITE 300, BENSALEM, PA 19020
(HEREINAFTER REFERRED TO AS "WG").
AFFILIATE AND WG (COLLECTIVELY THE "PARTIES") HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS:
The following terms, abbreviations and definitions used in this
Agreement shall have the meanings set forth herein below:
(a) "SYSTEM(S)" means Affiliate's television distribution system(s) for
one or more geographical service areas, as from time to time are identified in
Exhibit A.
(b) "PROVIDER(S)" means one or more entities providing Subscriber
Accessible Content for Subscriber access on or as part of the WorldGate-SM-
Service.
(c) "SUBSCRIBER" means a person or entity gaining access to the
WorldGate-SM- Service as part of Affiliate's System.
(d) "SUBSCRIBER ACCESSIBLE CONTENT" means the programs, displays,
data, information, and other content (including without limitation, the
Internet) which, from time to time, has been licensed or is otherwise
provided by WG and other Providers for access by Subscribers on or as part of
the WorldGate-SM- Service.
(e) "SUBSCRIBER TRANSACTION" means any instance whereby a Subscriber
uses or otherwise accesses the WorldGate Service.
(f) "TERM" means the term of this Agreement which shall commence on the
date hereof, and shall terminate seven (7) years from the date set forth above,
except if renewed or terminated earlier as provided herein.
(g) "WORLDGATE-SM- PLATFORM" means the hardware and software
components to be supplied by WG to Affiliate and used by Affiliate in
connection with Affiliate's System to provide Subscriber access to the
WorldGate Service hereunder.
(h) "WORLDGATE-SM- SERVICE" means an interactive Internet access
service which utilizes the WorldGate Platform in connection with the
Affiliate's System(s) for addressably transmitting downstream application
information (including Subscriber Accessible Content) to Subscribers in the
System's channels (vertical blanking intervals, full video channels or MPEG
data stream) and, either utilizing separate rf sub-bands of the System's
current allocated
<PAGE>
spectrum and/or a suitable phone-network based return facility for transmitting
upstream communication.
2. AUTHORIZATION OF RIGHTS, WORLDGATE PLATFORMS AND SYSTEM:
(a) WG hereby authorizes Affiliate, during the Term hereof, to provide
to Subscribers access to and use of the WorldGate Service, via the WorldGate
Platforms in connection with Affiliate's System, in accordance with the terms
and conditions of this Agreement.
(b) From time to time during the term hereof WG shall provide to
Affiliate and Affiliate shall acquire by purchase, lease or such other
acquisition transaction as may be agreed in writing by the Parties, certain
systems and the components of the WorldGate Platform as are further identified
in Exhibit B. Certain terms and conditions with respect to such acquisition as
well as the associated installation, maintenance and warranty of the WorldGate
Platforms are also set forth in Exhibit B.
(c) WG shall make available to Subscribers such Subscriber Accessible
Content as may, from time to time, be determined by the Parties. Affiliate,
however, acknowledges that the Providers of Subscriber Accessible Content may,
from time to time, and for any reason make additions to, deletions from and/or
otherwise modify Subscriber Accessible Content, and accordingly, WG also
reserves such right. Affiliate further acknowledges that elements of such
Subscriber Accessible Content, such as the Internet, may include materials and
information of unreliable, uncertain or even objectionable origin, nature and/or
character, and that WG expressly disclaims any responsibility for or liability
associated with Subscriber's access to or use of the Subscriber Accessible
Content.
(d) Affiliate may request modifications of or additions to certain user
interface screens or other aspects of the WorldGate Platform and/or the
Subscriber Accessible Content. WG agrees to work with Affiliate to accommodate
such requests to the extent that WG agrees such modifications are viable and
will enhance the WorldGate Service.
(e) Affiliate shall provide a suitable System and facilities associated
therewith as further identified in Exhibit A. Affiliate may, from time to time,
add additional Systems, in which event Affiliate shall use commercially
reasonable efforts to provide WG with at least ninety (90) days advance written
notice of any such proposed additions to the System, and upon the agreement of
the Parties with respect to the proposed additions this Agreement shall be
promptly amended to cover the proposed additions by the execution of
supplemental and/or superseding Exhibit A(s) setting forth the agreed and then
current information relevant to such Systems. Furthermore and from time to time,
Affiliate may make other changes to the Systems and facilities comprising the
same and/or WG may make changes to the WorldGate Platform and/or the WorldGate
Service. In the event such changes materially affect the performance of the
WorldGate Service, the Party making the changes shall use all reasonable efforts
to provide the other Party with as much advance notice of the same as is
reasonably possible, and the Parties shall reasonably cooperate with each other
to minimize any resulting detrimental effect from such changes.
(f) The installation, maintenance and support of such Systems and
associated facilities shall be the sole responsibility of Affiliate and its
suppliers. WG (and its contractors),
<PAGE>
however, requires both physical and electronic access to the System and the
WorldGate Platform connected thereto to perform its obligations hereunder.
Affiliate shall provide WG (and its contractors) reasonable physical access upon
advance notice as well as electronic access (via modem, the Internet and other
electronic means) to such Systems (including the facilities and technical
personnel associated therewith) and to the WorldGate Platforms connected or to
be connected thereto, as required to perform its obligations hereunder,
including without limitation, the installation, support and service of the
WorldGate Platform, as well as the reporting and invoicing of Subscriber
Transactions.
3. RESERVATION OF RIGHTS:
(a) Affiliate agrees that it is the essence of this Agreement that,
without the specific written consent of WG, or except as otherwise set forth
herein: (i) the WorldGate Platform shall not be modified by Affiliate in any
manner; (ii) the WorldGate Platform shall not be utilized by Affiliate to
provide services other than the WorldGate Service; and (iii) Affiliate shall not
authorize any other party to do any of the acts forbidden herein (the foregoing
subparagraphs (i)-(iii)) are collectively referred to herein as the "Prohibited
Acts").
(b) Affiliate shall immediately notify WG upon the occurrence or likely
occurrence of any Prohibited Acts of which it becomes aware.
(c) All licenses, rights and interest in, to and with respect to the
WorldGate Platform, the Subscriber Accessible Content, the elements, parts and
derivations thereof (including without limitation the writings, images,
displays, electronic reproductions, user interfaces, sounds, data, information
and other works embodied therein, derived therefrom or ancillary thereto, and
the media of reproduction, performance or exhibition thereof), as well as the
intellectual property rights related thereto, not specifically granted herein to
Affiliate or to Subscribers, shall be and are expressly and entirely reserved by
WG and the applicable Providers. The rights and licenses granted to Affiliate
and the Subscribers hereunder do not include any right to sublicense any third
party, in whole or in part.
4. MARKETING AND PROMOTION OF THE WORLDGATE SERVICE: The Parties agree to
diligently market and promote the WorldGate Service to all of Affiliate's
customers which are or become part of Affiliate's System(s). In particular and
without limitation the Parties agree to provide such marketing and promotional
services as are further identified in Exhibit C. The Parties recognize that each
other's trademarks and brands are significant assets of the Party owning the
same and that any use of such trademarks and brands shall only be with the
other's prior consent and then only in a manner consistent with that typically
used with other quality and valued trademarks and brands. The WG marks shall be
prominently displayed in all consumer communications promoting the WorldGate
Services such as, but not limited to, marketing materials, advertisements,
direct mail pieces, bill stuffers, price lists, etc. All marketing materials and
TV spots developed by Affiliate promoting the WorldGate Services, and all other
uses of the WG marks shall be approved by WG in writing prior to initial
dissemination. The WG marks may be promoted with Affiliate's mark with WG's
prior written approval.
5. PAYMENTS, ACCESS FEES AND TAXES:
(a) As consideration for the rights granted and services performed
hereunder with respect to the WorldGate Service, Affiliate shall pay to WG
Subscriber Access Fees as more
<PAGE>
fully set forth in Exhibit D. The Parties acknowledge that changes may be
required in such Subscriber Access Fees as a result of material changes in the
services and systems which are agreed to be offered hereunder (including without
limitation, the addition of optional services, etc.) or in the event of changes
in the regulatory environment governing such services and systems which
materially affect the cost or such services and systems to WG. In such event the
Parties agree to negotiate in good faith any resulting changes to the Subscriber
Access Fees hereunder.
(b) Notwithstanding the required payment of a Subscriber Access Fee as
described above, the Parties agree and acknowledge that Affiliate is free to
determine what fees, if any, it charges its customers with respect to access to
the WorldGate Service and/or any Subscriber Transactions.
(c) Except as expressly stated, all payments and fees due to WG
hereunder, including without limitation the Subscriber Access Fee, are net of
all duties, franchise fees and taxes (including interest and penalties on any
such amounts) now or hereafter imposed or based upon the licensing, rental,
purchase, shipment, delivery, transmission, exhibition, possession, or use of
the WorldGate Platform, the access to any Subscriber Accessible Content, or any
transfer of technology hereunder, but excluding however any taxes assessed upon
any of WG's income or personal property (collectively "Taxes"). Affiliate has
advised WG that licensing and/or registration fees may be due for doing business
in the State of Washington and the City of Tacoma in the aggregate amount of
approximately $97.00, and WG agrees to pay this amount if so required by the
governmental authorities in these jurisdictions. WG agrees to register with the
City of Tacoma and to pay all applicable City of Tacoma taxes. Provided,
however, if the City's taxes, tax rates, franchise fees and/or license fees are
amended or adopted so to increase above the current 0.0048% of gross income,
then Affiliate agrees to reimburse WG to the extent of such increase.
(d) Except for Subscriber Access Fees or as otherwise directed by WG in
writing, all payments hereunder, including without limitation the purchase price
of the components of the WorldGate Platform shall be made promptly at the net
invoice price (i) in cash before shipment, or (ii) by establishing a confirmed,
irrevocable letter of credit in form and substance and with a primary bank
satisfactory to WG, payable against delivery of a site draft, bill of lading or
other similar document requested by WG, or (iii) upon written credit approval by
WG, within thirty (30) days after the receipt of an invoice for the same.
Subscriber Access Fees and such other payments as are directed in writing by WG
are due within twenty (20) days of the receipt of invoice for the same. Interest
shall accrue on all amounts not paid when due at a rate equal to the lesser of
twelve (12%) percent per annum or any maximum rate imposed under applicable laws
and regulations. Payments shall not be deferred or subjected to setoff by
Affiliate. Payments may not be suspended and shall continue during the pendency
of any dispute hereunder. All payments to be made to WG shall be in the currency
of the United States unless otherwise agreed in writing by the parties. WG
reserves the right to change or limit the amount or duration of any payment
credit terms which may be extended to Affiliate hereunder in the event of any
change in the credit worthiness of Affiliate as determined by WG in its sole
discretion.
6. STATEMENTS AND REPORTS: To afford determination and/or verification of the
Subscriber Access Fees due hereunder WG shall provide to Affiliate an accounting
statement and report within twenty (20) days after the end of each calendar
month in which the WorldGate
<PAGE>
Service is distributed hereunder. Said statement shall include at least the
following information to the extent applicable: the number of Subscribers, the
type of Subscriber accounts and the number of such type of accounts, the
Subscriber Transaction time, and the total amount due for all Subscriber
Transactions and Subscriber access to the WorldGate Services hereunder. Such
information may be provided electronically by access to computer terminals
associated with the WorldGate Platform and/or in connection with a third party
standard billing interface. Affiliate acknowledges that WG requires access to
records and information relating to Subscribers in order to provide such
statements and reports and hereby consents to the same.
7. AUDIT: Affiliate and WG shall keep accurate and complete books and records of
Subscriber Transactions and accounts hereunder, and any required adjustments
thereto. Subject to the confidentiality provisions contained herein Affiliate
and WG may, not more than once during each calendar year and upon at least
thirty days prior written notice, at their expense and during regular business
hours, have the right to audit all such books and records of the other
pertaining to the Subscriber Transactions occurring over Affiliate's System.
Such audits shall be conducted by a nationally recognized, independent public
accounting firm chosen by the auditing Party on the auditing Party's behalf. The
audited Party agrees to fully cooperate with auditing Party's representatives
and/or designees, and shall provide such representatives and/or designees with
an office or adequate space in which to facilitate any audit of such books
and/or records. If an audit or checking reveals a discrepancy in the Access Fee
owed for the audit period, WG and Affiliate agree to make prompt adjustments of
such accounts along with any required credits or payments associated therewith.
8. REPRESENTATIONS AND WARRANTIES OF THE PARTIES:
(a) Each of the Parties represents and warrants that (i) it has the
authority and power to enter into this Agreement and to perform its obligations
hereunder; and (ii) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
and are deemed to be valid, binding and enforceable obligations.
9. INDEMNIFICATION:
(a) WG shall indemnify Affiliate against (i) any award of damages and
costs made against Affiliate by a final judgment of a court of competent
jurisdiction in any such action, insofar as the same are based on a claim that
the WorldGate Platform infringes any United States patent, and (ii) any
settlements or compromises approved by WG as described below. WG shall control
the defense of any such action including appeals, and all of negotiations
thereof, including the right to effect any settlement or compromise. In case the
use of the WorldGate Platform is, in any action, held to constitute such an
infringement and the use thereof is enjoined, WG shall, at its option and
expense (x) procure for Affiliate the right to continue using the WorldGate
Platform, (y) replace or modify the same so that it becomes non-infringing and
performs the same service with substantially the same quality, or (z) authorize
Affiliate to return the effected WorldGate Platform and provide Affiliate with a
refund of the purchase price, less an allowance for past use prorated based upon
the initial term of this Agreement. The above indemnity shall not apply to and
WG shall have no liability for any claim
<PAGE>
of infringement based on: (1) any use of other than a current unaltered release
of the WorldGate Platform; or (2) any access to or use of the Subscriber
Accessible Content; or (3) any combination or use of the WorldGate Platform with
non-WG hardware, software, information, data or content, or (4) any use of the
WorldGate Platform other than is authorized herein. The foregoing states the
entire liability with respect to infringement of any intellectual property
rights with regard to the WorldGate Platform.
(b) Affiliate shall indemnify WG against (i) any award of damages and
costs made against WG by a final judgment of a court of competent jurisdiction
in any such action, insofar as the same are based on a claim of infringement
arising out of: (1) any use of other than a current unaltered release of the
WorldGate Platform; or (2) any combination or use of the WorldGate Platform with
non-WG hardware, software, Subscriber Accessible Content or data, or (3) any use
of the WorldGate Platform other than is authorized herein, and (ii) any
settlements or compromises approved by Affiliate as described below.
(c) In any case in which indemnification is sought hereunder:
(i) The party seeking indemnification shall promptly notify
the other party in writing upon the initiation of any claim or litigation to
which the indemnification relates;
(ii) The party seeking indemnification shall afford the other
party the opportunity to participate in, and, at the option of such other party,
to control, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
(iii) The party seeking indemnification shall fully cooperate
with the reasonable requests of the other party in its participation in, and
control of, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
10. SECURITY: Affiliate shall employ such security systems and procedures as may
be reasonable and commercially feasible to prevent theft, pirating or other
unauthorized access to the WorldGate Service as it is distributed over
Affiliate's System.
11. RENEWAL, TERMINATION AND DEFAULTS:
(a) Upon the expiration of the initial Term hereunder this Agreement
shall be automatically renewed for additional successive two (2) year periods
thereafter unless terminated by either Party upon ninety (90) days written
notice prior to the expiration of such initial Term and any renewal period. The
Subscriber Access Fees payable during any renewal period shall be subject to a
5% escalator, compounded annually, or if lower, WG's then current published
rates.
(b) In addition to all of its other rights and remedies at law and in
equity, either party shall be entitled at its option forthwith, upon giving
notice to the other party, to terminate this Agreement and all licenses granted
hereunder, (i) if said other party shall fail to perform any of its obligations
or undertakings required of it hereunder, or shall be in breach of any of its
warranties or representations herein contained, and shall not have cured or
remedied such failure or breach within sixty (60) days of written notification
thereof; provided, however that with respect to any failure to pay Subscriber
Access Fees such cure period shall be reduced to ten (10) business days from the
date of written notification hereunder; (ii) if a party hereunder
<PAGE>
commences a voluntary case under Title 11 of the United States Bankruptcy Code
as now and hereafter in effect, or any successor statute, or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or a
party consents to the entry of an order for relief in an involuntary case, or to
the conversion of a voluntary case to an involuntary case, under any such law,
or consents to the appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property; a party makes any
assignment for the benefit of creditors; a party is unable or fails or admits in
writing of its inability or failure to pay its debts as such debts become due;
or the Board of Directors or other governing body of a party adopts any
resolution or otherwise approves authorization to act upon any of the foregoing,
such action shall be deemed a breach hereunder; or (iii) if any order, judgment
or decree is entered against decreeing the dissolution or split-up of such
party, and such order remains undischarged or unstated for a period in excess of
thirty (30) calendar days, such action shall be deemed a breach hereunder.
(c) WG may terminate this Agreement upon at least one hundred twenty
(120) days prior notice in the event the Parties cannot agree upon any required
changes to the Fees in accordance with Paragraph 5(a) hereunder.
(d) Sections 1,3,7-10, 11(d), 14-16, and 18-20, as well as any
obligation which has accrued prior to any expiration or termination of this
Agreement shall survive such expiration or termination. All outstanding Access
Fees and other amounts owing to WG hereunder shall become immediately due and
payable in the event of any expiration or termination of this Agreement.
12. ASSIGNMENT: WorldGate shall have the right to assign its rights and
obligations hereunder to a third party which is acquiring all or substantially
all of its assets, or any company with which it may merge or consolidate. Except
as expressly set forth in the prior sentence neither party hereunder shall have
the right to assign, transfer or hypothecate its rights and obligations
hereunder, without the other's prior written approval. Any other purported
assignment of this Agreement, shall be deemed null and void.
13. HEADINGS, RELATIONSHIP OF PARTIES: The titles of the paragraphs of this
Agreement are for convenience only and shall not in any way affect the
interpretation of this Agreement. This agreement does not in any way create the
relationship of franchise, joint venture, partnership or agency between WG and
Affiliate, and each shall remain an independent contractor, and as such shall
not act or represent itself, directly or by implication, as agent for the other
or assume or create any obligation of or in the name of the other.
14. NON-WAIVER OF BREACH; REMEDIES CUMULATIVE:
(a) A waiver by either party of any of the terms or conditions of this
Agreement shall not, in any instance, be deemed or construed to be a waiver of
such terms or conditions for the future or of any subsequent breach thereof. No
payment or acceptance thereof under this Agreement shall operate as a waiver of
any provision hereof.
(b) Except as set forth herein all remedies, rights, undertakings,
obligations and agreements contained in this Agreement shall be cumulative and
none of them shall be in
<PAGE>
limitation of any other remedy, right, undertaking, obligation, or agreement of
either party. IN NO EVENT SHALL EITHER PARTY HEREUNDER BE LIABLE TO THE OTHER
FOR SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION ANY LOST
PROFIT OR INVESTMENT AND THE LIKE), INDIRECT OR INCIDENTAL DAMAGES, BY WAY OF
INDEMNITY OR OTHERWISE.
(c) In no event shall WG be liable for damages exceeding the cost of
the equipment purchased hereunder as referenced in Exhibit B..
15. NOTICES: Except as herein otherwise expressly provided, all notices,
statements and other documents desired or required to be given hereunder shall
be in writing and shall be given by personal delivery, certified mail, email
(with a copy sent by regular US mail) or fax (with a copy sent by regular US
mail). All notices, statements and other documents shall be sent to:
If to WG:
<TABLE>
<S> <C>
Accounting statements and All other notices should be sent to:
remittances should be sent to:
WORLDGATE COMMUNICATIONS, INC. WORLDGATE COMMUNICATIONS, INC.
3220 Tillman Drive, Suite 300 3220 Tillman Drive, Suite 300
Bensalem, PA 19020 Bensalem, PA 19020
Attn: Accounting Services Attn: Affiliate Administration
</TABLE>
If to Affiliate:
Click! Network
3628 South 35th Street
Tacoma, WA 98411-0007
Attn: Marketing Manager
(or at such other address as may be designated in writing by either party no
less than thirty (30) days prior to the date of transmission of the notice,
statement, etc.). Notice given by domestic mail shall be deemed given three (3)
days after the date of mailing; Notice given by international mail shall be
deemed given ten (10) days after the date of mailing, notice given by fax shall
be deemed given at the time of dispatch; notice given by email or personal
delivery shall be deemed given upon delivery by the email service or messenger.
16. GOVERNING LAW AND EXPORT RESTRICTIONS:
(a) All matters pertaining to this Agreement (including its
interpretation, validity, performance and breach), in whatever jurisdiction
action may be brought, shall be governed by the laws of the State of Delaware
(excluding its conflict of law provisions) . The parties hereto expressly
consent and agree to submit to the jurisdiction of any court of competent
jurisdiction
<PAGE>
(i) in the State of Delaware with respect to any action initiated by Affiliate,
and (ii) in the State of Washington with respect to any action initiated by WG,
and to accept service of process outside the States of Delaware and Washington,
as applicable, in any matter to be submitted to any such court pursuant hereto.
(b) Wherever there is any conflict between any provision hereof and any
law or requirement with the force of law, this Agreement shall remain valid and
such provision hereof shall be restricted to the extent, and only to the extent,
necessary to bring it within the applicable requirements, unless such
restriction shall, in the opinion of WG, have the effect of materially
nullifying, or impairing, this Agreement.
(c) Affiliate shall comply fully with all then current applicable laws
and regulations relating to the export of products and technical data including,
but not limited to, any regulations of the United States Office of Export
Administration.
17. FORCE MAJEURE: Neither party shall, in any manner whatsoever, be liable or
otherwise responsible for any delay or default in, or failure of performance
(other than the failure to make payments hereunder) resulting from or arising
out of or in connection with, any "Event of Force Majeure" and no such delay,
default in, or failure of performance shall constitute a breach by either party
hereunder. For purposes of this Agreement, an "Event of Force Majeure" in
respect of a party shall mean any act, cause contingency or circumstances beyond
the control of such party, including, without limitation, and to the extent
beyond the control of such other party, any governmental action,
nationalization, expropriation, confiscation, seizure, allocation, embargo,
prohibition of import or export of goods or products, regulation, order or
restriction (whether foreign, federal or state), war (whether or not declared),
civil commotion, disobedience or unrest, insurrection, public strike, riot or
revolution, lack of or shortage of, or inability to obtain, any labor,
machinery, materials, fuel, supplies or equipment from normal sources of supply,
strike, work stoppage or slowdown, lockout or other labor dispute, earthquake,
hurricane, fire, flood, drought, other natural calamity, damage or destruction
to plant and/or equipment, or any other accident, condition, cause, contingency
or circumstance (including, without limitation, acts of God) within or without
the United States beyond the control of such party.
18. CONFIDENTIALITY:
(a) The recipient of any confidential information of the other
hereunder agrees to safeguard the confidentiality of such confidential
information by applying policies and procedures adequate for that purpose,
including without limitation, restricting the disclosure of this confidential
information to employees and consultants needing to know the same for the
purpose of this Agreement, who have agreed in writing to safeguard such
confidential information in a manner consistent with the provisions of this
paragraph. The recipient shall not disclose any such confidential information to
any other person, firm or corporation, or use the same except for the purpose
stated hereinabove, and shall exercise at least the same degree of care to guard
against disclosure or unauthorized use of such confidential information, as the
recipient employs with respect to its own confidential information, but in no
event less than reasonable care. Information to be disclosed confidentially
hereunder shall be fixed in a tangible medium of expression that is marked
"Proprietary" or "Confidential", or if disclosed in other than a tangible medium
of expression, indicated by the disclosing Party as being
<PAGE>
"Proprietary" or "Confidential" at the time of disclosure and within thirty (30)
days thereafter summarized by the disclosing Party in a writing to the
recipient, in which writing the confidential information is identified as
"Proprietary" or "Confidential". A tangible medium of expression shall be deemed
to include, by way of example, memoranda, written descriptions, drawings,
photographs, models, prototypes, tapes, disks and circuitry.
(b) The recipient shall have no obligation of confidentiality hereunder
with respect to any information which:
(i) is already properly known to the recipient other than as a
result of a prior confidential disclosure by the disclosing Party;
(ii) is or becomes publicly known otherwise than by the
recipient's (or someone receiving the information from recipient) fault or
breach of this Agreement;
(iii) is rightfully received by the recipient without
restriction from a third party who is not under an obligation of
confidentiality, directly or indirectly, to the disclosing Party;
(iv) is independently developed by the recipient without
benefit of the confidential information received hereunder;
(v) is approved for release in writing by the disclosing
Party; or
(vi) is disclosed by the recipient pursuant to judicial or
regulatory action, provided that the disclosing party is promptly notified at
the time such action is initiated and the recipient fully cooperates with the
disclosing Party in seeking continued confidential treatment of such information
to the extent possible.
(c) Except as may be reasonably required by applicable law, regulation
or court order, the Parties agree that neither of them shall publicly divulge or
announce, or in any manner disclose to any third party, other than its
attorneys, accountants, parents, and partners, any of the specific terms and
conditions of this Agreement, including without limitation the Subscriber Access
Fees payable hereunder, and the parties further warrant and agree that none of
their officers, directors or employees will do so. Click! Network will notify WG
of such a request for disclosure so that WG may take its own course of action.
19. PROCEDURE PRIOR TO LITIGATION: Prior to initiating any litigation with
respect to any controversy, claim or dispute arising hereunder or related
hereto, but excluding any claim arising under Sections 3, 10 or 18 of this
Agreement (a "Dispute") a Party must first notify the other Party and request in
writing that such Dispute be submitted to an executive committee consisting of
one senior ranking executive named by each of the Parties for such purpose. Such
named executive shall have the authority and be capable of making binding
decisions on behalf of such Party with respect to such Dispute. Within five (5)
business days following the receipt of such notice (or such other period as may
be agreed by the Parties) each Party shall have named its executive committee
participant, and within ten (10) business days following the receipt of such
notice (or such other period as may be agreed by the Parties) the executive
committee shall meet to discuss the Dispute. If the executive committee is not
able to resolve the Dispute within twenty (20) business days following the
receipt of such notice (or such other period as may be agreed by the Parties),
then either Party may proceed with the initiation of such litigation as may be
appropriate.
20. ENTIRE UNDERSTANDING: This Agreement, including the Exhibits identified
herein, sets forth the entire understanding of the parties with respect to the
subject matter hereof, and all prior concurrent oral agreements or all prior
written agreements with respect to such subject
<PAGE>
matter have been merged herein. No representations or warranties have been made
other than those expressly provided for herein. This Agreement may not be
modified, except by a written instrument signed by an authorized representative
of the parties, and this provision may not be waived except by written
instrument signed by an officer of the parties. In the event this agreement is
translated into any foreign language counterpart, the English language
counterpart shall remain controlling. This Agreement shall be presumed to have
been negotiated and drafted by both Parties for the purpose of construing any
ambiguities hereunder.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE SIGNED AND
ACCEPTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST
WRITTEN ABOVE.
<TABLE>
<S> <C>
Affiliate: CITY OF TACOMA, TACOMA PUBLIC UTILITIES, WG
DBA Click! Network
By: /s/ Mark Crisson By: /s/ Peter Mondics
Name: Mark Crisson Name: Peter Mondics
Title: Director of Utilities Title: unintelligible
Date:11/25/98 Date: 12/7/98
Tel.: 253-502-8900 Tel.: 215-633-5100
Fax: 253-502-8493 Fax: 215-633-9590
</TABLE>
Approved as to form & legality
/s/ UNINTELLIGIBLE
-------------------------
[Unintelligble] Assistant City Attorney
Approved:
By: /s/ UNINTELLIGIBLE
--------------------
Finance Director
<PAGE>
EXHIBIT A
TELEVISION DISTRIBUTION SYSTEMS
<TABLE>
<CAPTION>
SYSTEM NAME MAILING ADDRESS BASIC SUBSCRIBERS
----------- --------------- -----------------
<S> <C> <C>
CLICK! NETWORK 3628 SOUTH 35TH STREET 1000
TACOMA, WA 98411-0007
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
</TABLE>
Each System identified above must include at least the following minimum
facilities (to be supplemented as WG subscriber base grows):
(a) dedicated Internet Access Link - T1 or equivalent with comparable
data rates
(b) Cisco 2501 Router with IP Software (or approved equivalent)
(c) Kentrox D-Serv CSU/DSU (or approved equivalent)
Effective Date: 12/14/98 Affiliate Initials: /s/ unintelligible WG
Initials: /s/ unintelligible
<PAGE>
EXHIBIT B
WORLDGATE PLATFORM
PLATFORM COMPONENTS AND PRICING:
Set forth below are the standard components of the WorldGate Platform and
Affiliate's price for the same as of the effective date set forth below. Such
prices are FOB WG's factory, and are valid for a period of one-year from this
effective date after which time they are subject to change by WG to reflect
current market conditions.
<TABLE>
<CAPTION>
ITEM FIRST UNIT IN A HEADEND OTHER UNITS - SAME HEADEND
---- ----------------------- --------------------------
<S> <C> <C>
Headend Package (analog) ## ##
Large System Headend Package (analog) ##
Channel HyperLinking Server ##
WorldGate Keyboard* ## ##
</TABLE>
* Non-U.S. language keyboards will be quoted separately.
Affiliate will require and shall purchase hereunder one or more Headend Packages
and WorldGate Keyboards, as required, for each System identified on Exhibit A of
this Agreement. Custom configuration options are available and will be quoted
separately if required based upon expected subscriber base (For initial
quotation see Exhibit b-2 attached hereto and incorporated herein by reference).
The above fees include routine site surveys and installation for domestic U.S.
locations. Non-routine and/or non-U.S. surveys and installation are available on
a time and material basis at WG's customary rates (international locations will
also involve travel and per diem charges.) The above fees do not include any
improvements and/or modifications to Affiliate's Systems. Notwithstanding the
use of the term "purchase" herein, such WorldGate Platform as acquired hereunder
includes certain WorldGate and third party software, microcode and
documentation, whether stored in electronic (including firmware), magnetic,
optical or other media (collectively Programs) for which title to and all
proprietary rights in are reserved to WG and its suppliers. All access to and
use of such Programs is subject to the terms and conditions of WG's Software
License attached hereto and incorporated herein as Exhibit B-1.
LIMITED PRODUCT WARRANTY:
In addition to the warranties set forth in Section 8 of this Agreement, WG
warrants that as installed hereunder and for a period of three months thereafter
( but not more than four months after delivery if there is a delay between
delivery and installation other than as may result from
- -----------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
the actions and/or omissions of WG) such WorldGate Platform components will
perform under normal use and service substantially in the manner specified in
the applicable published technical specification as published by WG prior to the
execution of this Agreement , and that for this period the hardware components
of the WorldGate Platform will be free from defects in materials and
workmanship. This warranty shall not apply to any items subjected to accident,
misuse, neglect, mishandling, unsuitable physical or operating environments or
any installation, testing, repair or alteration by anyone other than WG or its
authorized vendors, or any use of non-approved components in connection with the
WorldGate Platform. WG's warranty hereunder extends to Affiliate and to no other
person or entity. This warranty shall not be enlarged or otherwise affected by,
and no obligation or liability shall arise hereunder by WG's rendering of
technical advice, help line support or service in connection with the products
furnished hereunder. Any claims arising out of the aforesaid warranty must be
submitted to, and the affected components must be returned or otherwise made
available to WG in accordance with its published procedures, during the
specified warranty period or within thirty (30) days of the expiration of such
period. Subject to the preceding conditions, WG will promptly examine such
WorldGate Platform components and repair or replace any such components which
are defective with respect to the above warranty. Any required service, repair
or replacement (and the costs and expenses associated therewith) which are not
covered by the above warranty will be the responsibility of Affiliate unless
covered by an applicable WG service contract.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY
WARRANTY HEREUNDER, EXPRESS OR OTHERWISE, IS LIMITED TO THE WARRANTY TERM AND
CONDITIONS AS SET FORTH ABOVE.
AFFILIATE TECHNICAL SUPPORT:
WG will at no additional charge to Affiliate provide technical support to
Affiliate's customer service and engineering staff, 7 days per week, 24 hours
per day, with such support to be provided by telephone, facsimile and Internet.
Except as is provided by WG pursuant to the terms and conditions of any
applicable service contract or WG's written warranty herein, any required travel
from WG's facilities or support in addition to that provided by telephone,
facsimile and Internet hereunder will require payment for time and materials at
WG's customary rates, as well as reimbursement for travel and per diem charges.
ON SITE TRAINING:
Prior to the initial launch of the WorldGate Service on Affiliate's Systems WG
will conduct one on site customer service training program of up to 3 days in
duration for domestic U.S. installations. Training for non-U.S. installations as
well as additional training will be available on a time and materials basis at
WG's customary rates, as well as reimbursement for travel and per diem charges.
PLANT SPARES:
WG and Affiliate will cooperate to formulate and implement a recommended program
for spare parts inventory, local maintenance strategy and emergency response.
<PAGE>
SUBSCRIBER HELP LINE:
WG shall make available to WorldGate Subscribers (for domestic US locations
only) a toll-based help line to assist WorldGate service Subscribers with
questions relating to their WorldGate Service. Affiliate shall be responsible
for all other Subscriber support.
<PAGE>
EXHIBIT B-1
SOFTWARE LICENSE
The terms and provisions of this Exhibit B-1 (Software License) provide for the
licensing by WG to Affiliate of certain Programs (as such term is defined in the
Affiliation Agreement) furnished with and to be used either as part of or in
conjunction with the WorldGate Platform to be provided by WG to Affiliate under
an Affiliation Agreement, of which this Exhibit forms a part.
1. GRANT OF LICENSE: WG (hereinafter Licensor) hereby grants to Affiliate
(hereinafter Licensee) and Licensee hereby accepts a personal, nonexclusive
license to use the Programs on the terms and conditions set forth herein and in
the Affiliation Agreement. Except as specifically provided herein and therein,
no interest, right or license, express or implied, is granted, and such other
interests, rights and licenses are hereby reserved.
2. OWNERSHIP RIGHTS: Any reference to sale or purchase not withstanding, title
to the Programs and all copies and derivatives thereof shall be and remain in
Licensor, and no title to or ownership of the Programs or any derivative or
portion thereof is conveyed or transferred to the Licensee. Licensee
acknowledges that the Programs constitute confidential and proprietary
information and trade secrets of Licensor, whether or not the Programs, or any
portion thereof, are or may be copyrighted or copyrightable and/or patented or
patentable, and that disclosure of the Programs to Licensee is on the basis of
the confidential relationship between Licensee and Licensor under this
Agreement.
3. RESTRICTION ON TRANSFER: Licensee shall not sell, assign, sub-license,
transfer, or otherwise make available the Programs, in whole or in part, except
as may be permitted by this Software License Agreement and only with written
prior consent by WG.
4. RESTRICTION ON USE, DISASSEMBLY AND REVERSE ENGINEERING: Licensee may use the
Programs solely and exclusively on the computer(s) and associated peripherals
furnished by WG as part of the WorldGate Platform sold to Affiliate under terms
of the Affiliation Agreement, except that the Programs may also be temporarily
used on or with a compatible backup computer and associated peripherals if the
WorldGate Platform computers and associated peripherals are inoperative because
of malfunction or during the performance of preventive maintenance or
engineering changes, but only for such reasonable time as required to restore
such WorldGate Platform to operative status. Licensee shall use the Programs
only in connection with its immediate internal operations with respect to the
provision to its customers of the WorldGate Service as authorized by the
Affiliation Agreement, and shall not otherwise use nor offer or supply the use
of the Programs to others under any circumstance. Licensee shall not de-compile,
disassemble or otherwise reverse engineer the Programs.
5. RESTRICTION ON COPYING: Licensee shall make no copies (including any
derivatives) of the Programs, or any part thereof, except that Licensee may make
one (1) copy of the Program solely for the purposes of backup and archival
storage. All copies shall be clearly marked by Licensee with the same Licensor
proprietary and copyright restrictions which appear on the Programs originally
supplied to Licensee, and be stored by Licensee in a secure manner.
6. RESTRICTION ON DISCLOSURE: Except as expressly permitted herein, Licensee
shall not disclose or otherwise make available the Programs, or any portion
thereof, to any third party or
<PAGE>
to any employee or agent of Licensee who is not of necessity authorized by
Licensee to use the Programs as part of Licensee's provision of the WorldGate
Service. Licensee shall take all reasonable steps necessary to ensure the
Programs, or any portions, copies or derivatives thereof, are not disclosed or
otherwise made available by Licensee (or employees or agents of Licensee) to any
third party except as aforesaid.
7. TERMS AND TERMINATION: The term of this License Agreement and the license
granted hereunder shall commence on the date hereof, and shall terminate on the
earlier of: (a) when Licensee ceases to operate or otherwise de-installs or
replaces the WorldGate Platform; or (b) the termination or expiration of the
Affiliation Agreement or the failure of Licensee to pay any fees or to comply
with any of the terms and provisions hereof or of the Affiliation Agreement
pursuant to which the WorldGate Platform has been provided, which failure
continues for a period of ten (10) days after written notice to cure such
failure and avoid termination.
Upon any termination of this Software License Agreement, pursuant to (a) or (b)
above, Licensee shall immediately cease use of the Programs and return the
Programs and all copies thereof to WG, and shall, within one (1) month after any
such termination furnish WG a written statement certifying that the original and
all copies and extracts (including partial copies and extracts) of the Programs
and any related material received from WG or made in connection with such
license have been returned to WG or, upon WG's written request, destroyed. WG
reserves all rights and remedies at law, in equity and otherwise provided
pursuant to the terms and conditions of this Agreement, to enforce it rights
under this license. Licensee acknowledges and agrees that any breach or
threatened breach of this software license shall cause WG irreparable injury for
which there may be no adequate remedy at law, and that in addition to any other
remedies available, WG shall therefore be entitled to obtain injunctive relief
without the necessity of proving actual damages.
Description___________________________________________Release No._______________
Effective Date: 12/14/98 Affiliate Initials: /s/ unintelligible WG Initials:
/s/ unintelligible
<PAGE>
EXHIBIT B-2
WORLDGATE PLATFORM QUOTATION*
Large System Analog Headend as follows: [INFORMATION REDACTED]##
1. [INFORMATION REDACTED]##
2. [INFORMATION REDACTED]##
3. [INFORMATION REDACTED]##
4. [INFORMATION REDACTED]##
5. [INFORMATION REDACTED]##
6. Keyboards
Total
*PER THE REQUEST OF AFFILIATE THE ABOVE PRICES HAVE BEEN RESTATED TO INCLUDE
CITY TAX (I.E., 0.0048%) AND STATE TAX (I.E., 1.5%).
- ----------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
EXHIBIT C
MARKETING AND PROMOTION OF THE WORLDGATE SERVICE
The Parties will provide, throughout the term of this Agreement, at least the
following identified activities to market and promote the WorldGate Service:
WG WILL PROVIDE:
- - four times yearly direct mail campaign to non-WorldGate Subscribers (WG
will supply creative and will provide both printing and bulk delivery for
purchase at WG's cost)
- - bill stuffers (for purchase at WG's cost)
- - four times yearly local cable cross channel promotion, when technology is
available
- - four 30 and four 60 second video promotions for use as commercials,
distributed yearly
- - training for customer service representatives
- - selected print media placement
- - camera-ready ad mats
- - four-color quarterly consumer guide (for purchase at WG's cost)
- - point of sale displays
- - leave behind piece and on-line tutorial for consumer education
- - training tape for Subscribers
- - updates for user guides as the same become available
AFFILIATE WILL PROVIDE:
- - four times yearly direct mail campaign to non-WorldGate households
(Affiliate will provide mailing lists, address labeling, out-bound postage
and return fulfillment costs)
- - a minimum of 200 ad avails promoting the WorldGate Service with WG approved
commercials of either 30 or 60 second length per month, inserted on
Affiliate's Systems on ad supported channels as agreed between the parties,
to be run at times between 6:00 AM to 12:00 PM (midnight local time) when
such capability is technically available
- - affidavits (in the form of a computer printout) verifying above commercials
- - bill stuffer insertion and/or envelope advertising and mailing in
Subscriber billing cycle, three times per annum
- - reasonable use of local origination text-based channels (if available) to
promote WorldGate Services
- - placement of WG approved 30 and 60 second commercials (or other WG provided
promotional pieces) on Affiliate's PPV promotion channel(s), for regular
rotation for two week intervals, monthly
- - trained customer service representatives for all WorldGate Services
- - reasonable promotion of WorldGate Service on Affiliate's web home page
Effective Date: 12/14/98 Affiliate Initials: /s/ unintelligible WG Initials:
/s/ unintelligible
<PAGE>
EXHIBIT D
MONTHLY SUBSCRIBER ACCESS FEES
The following Subscriber Access Fees are payable by Affiliate to WG on a monthly
basis for each Subscriber having access to the WorldGate Service during such
month (prorated based upon a 30 day month for Subscribers having access to the
WorldGate Service for less than a full calendar month). The pricing grid sets
forth various benchmarks which, if achieved, will result in an adjustment in the
particular amount payable for such Subscriber Access Fees. Affiliate's
performance with respect to these benchmarks and the resultant amounts payable
hereunder shall be determined on an aggregate System wide basis based on the
results of all Systems hereunder. Any adjustment in the amount payable for such
Subscriber Access Fees shall apply only for prospective periods after the
benchmarks have been achieved, and then only after written notice has been
provided by Affiliate to WG providing the details as to such achievement.
In addition to the Subscriber Access Fees as set forth below Affiliate shall pay
to WG as Subscriber Access Fees, in the event the amount which Affiliate
invoices and/or otherwise charges its customers as part Affiliate's standard
monthly retail price for the WorldGate Service exceeds U.S.$10.95, an amount
equal to thirty-five (35%) percent of such excess.
For purposes of determining the amount of the Subscriber Access Fees payable
hereunder for the Systems (x) the number of "WorldGate Subscribers" for any
month shall mean the average number of actual Subscribers to the WorldGate
Service for that month and shall include only the Subscribers being invoiced for
and paying the standard retail charge which Affiliate invoices its customers for
the WorldGate Service (Subscriber Access Fees are, however, payable by Affiliate
to WG for all Subscribers receiving access to the WorldGate Service irrespective
of whether any payment is made by such Subscribers to Affiliate), and (y) the
number of AWorldGate Capable Customers for any month shall mean the average
number of Affiliate's actual customers (including only those customers being
invoiced for and paying the standard retail charge which Affiliate invoices for
its television programming distribution service) which during the month had
sufficient System architecture and Head-end Package components of the WorldGate
Platform installed and operational to permit such customer to have become a
WorldGate Subscriber, had the customer so chosen, and (z) the APenetration for
any month shall mean the number of WorldGate Subscribers divided by the number
of WorldGate Capable Customers as determined above. Monthly averages hereunder
shall be determined dividing by two the sum of the applicable number on the
first and last business days of the month.
THE FOLLOWING RATES APPLY ONLY TO AFFILIATES OFFERING THE WORLDGATE SERVICE AS A
UNLIMITED USAGE SERVICE AND AS A BASIC SERVICE TO ALL CUSTOMERS, ACROSS AND AS
PART OF ALL TIERS OF SERVICE. (INCLUDES AN ALLOTTED USAGE TIME PER SUBSCRIBER
PER MONTH WHICH IS NOT LIMITED IN NUMBER OF HOURS).
[CHART REDACTED]##
*PER THE REQUEST OF AFFILIATE THE ABOVE FEES HAVE BEEN RESTATED TO INCLUDE $0.01
CITY TAX (I.E., 0.0048%)
- ------------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
CHANNEL HYPERLINKING-SM- AND OTHER REVENUE SHARING OPPORTUNITIES
The parties anticipate that the Subscriber Accessible Content will include
opportunities to generate revenue from third parties through Channel
Hyperlinking, advertising, commodity buying/selling lead generation and similar
services which may be enabled by the WorldGate Platform. The Parties further
recognize that such opportunities may require commitments with advertising
agencies and other third parties as well as administrative, accounting, and
other services and associated costs, fees, and expenses in order to permit such
revenue to be generated. The Parties will work together to maximize such
opportunities. Any revenue which is generated as a result of such services as
the Parties agree to make available to Subscribers as part of the WorldGate
Service hereunder will be shared by WG and Affiliate either evenly or upon an
alternative percentage basis to be negotiated by the parties, in either case
after subtracting such associated costs, fees, and expenses, and subject to any
required commitments as aforesaid.
Effective Date: 12/14/98 Affiliate Initials:/s/ unintelligble WG Initials: /s/
unintelligble
<PAGE>
EXHIBIT 10.26
WORLDGATE AFFILIATION AGREEMENT
THIS AGREEMENT DATED SEPTEMBER 30, 1998, IS BETWEEN CABLE BAHAMAS, LTD., WITH
------------------- --------------------
ITS PRINCIPAL PLACE OF BUSINESS AT ROBINSON ROAD P.O. BOX CB - 13050, NASSAU,
------------------------------------------
BAHAMAS, (HEREINAFTER REFERRED TO AS "AFFILIATE") AND WORLDGATE COMMUNICATIONS,
- --------
INC., WITH ITS PRINCIPAL PLACE OF BUSINESS AT: 3220 TILLMAN DRIVE, SUITE 300,
BENSALEM, PA 19020 (HEREINAFTER REFERRED TO AS "WG").
AFFILIATE AND WG (COLLECTIVELY THE "PARTIES") HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS:
The following terms, abbreviations and definitions used in this
Agreement shall have the meanings set forth herein below:
(a) " COMMERCIAL ESTABLISHMENT" means non-lodging related public and
private facilities which serve the general public or selected members of the
general public, including government and professional offices and non-lodging
related retail businesses such as stores, but excluding lodging related
businesses such as hotels, resorts and casinos.
(b) "PRIVATE RESIDENCE" means a private, non-transient residential
dwelling unit.
(c) "SYSTEM(S)" means Affiliate's cable television distribution
system(s), including the facilities directly associated therewith, for the
geographical service areas identified in Exhibit A. Affiliate may, from time to
time, add additional Systems, in which event Affiliate shall provide WG with at
least thirty (30) days advance written notice of any such proposed additions to
the System, and upon the agreement of the Parties with respect to the proposed
additions this Agreement shall be promptly amended to cover the proposed
additions by the execution of supplemental and/or superseding Exhibit A(s)
setting forth the agreed and then current information relevant to such Systems.
(d) "SUBSCRIBER" means a Commercial Establishment or Private Residence
gaining access to the WorldGate-SM- Service through Affiliate's System(s).
(e) "SUBSCRIBER ACCESSIBLE CONTENT" means the data, information,
programs, displays, applications and other content (including without
limitation, the Internet) which, from time to time, are provided for access by
Subscribers to the WorldGate-SM- Service. Affiliate and WG acknowledge that
elements of such Subscriber Accessible Content, such as the Internet, may
include materials and information of unreliable, uncertain or even objectionable
origin, nature and/or character, and that Subscriber Accessible Content is
dynamic and that the providers thereof may, from time to time, and for any
reason make additions to, deletions from and otherwise modify Subscriber
Accessible Content.
(f) "TERM" means the term of this Agreement which shall commence on the
date hereof, and shall terminate five (5) years from such date, except if
renewed or terminated earlier as provided herein.
<PAGE>
(g) "WORLDGATE-SM- PLATFORM" means the hardware and software components
to be supplied by WG to Affiliate and used by Affiliate in connection with
Affiliate's System(s) to provide Subscriber access to the WorldGate Service
hereunder.
(h) "WORLDGATE-SM- SERVICE" means an interactive Internet access
service which utilizes the WorldGate Platform in connection with the
Affiliate's System(s) for addressably transmitting downstream application
information (including Subscriber Accessible Content) to Subscribers in the
System's channels (vertical blanking intervals, full video channels or MPEG
data stream) and, either utilizing separate rf sub-bands of the System's
current allocated spectrum and/or a suitable phone-network based return
facility for transmitting upstream communication.
2. AUTHORIZATION OF RIGHTS, WORLDGATE PLATFORM AND SYSTEMS:
(a) During the Term hereof WG authorizes Affiliate to provide to
Subscribers, and such Subscribers to have, access to and use of the WorldGate
Service, via the WorldGate Platform in connection with Affiliate's System, in
accordance with the terms and conditions of this Agreement. For so long as the
WorldGate Service is provided hereunder as the only offering on the Systems for
Internet on a television, WG will not authorize any other person or entity to
provide the WorldGate Service to the geographic areas directly served by the
Systems.
(b) Upon the execution of this Agreement, and as the Subscriber base
increases thereafter, Affiliate shall acquire by purchase, lease or such other
acquisition transaction as may be agreed in writing by the Parties, the
additional components of the WorldGate Platform to maintain reasonable
performance characteristics for the Service, which Affiliate desires to acquire
to offer the WorldGate Service. The standard configuration components of the
WorldGate Platform as well as certain terms and conditions with respect to such
acquisition as well as the associated warranty and support of the WorldGate
Platform are also set forth in Exhibit B.
(c) Affiliate shall also provide suitable Systems as further described
in Exhibit A. The installation, maintenance and support of such Systems shall be
the sole responsibility of Affiliate and its suppliers. To enable WG to perform
its obligations hereunder Affiliate shall provide to WG (and its contractors)
reasonable physical access (upon advance notice by WG and subject to Affiliate's
security procedures) as well as continuous electronic access (via electronic
means including direct modem and Internet connections) to such Systems, and to
the WorldGate Platforms connected thereto.
3. RESERVATION OF RIGHTS; TRADEMARKS:
(a) All licenses, rights and interest in, to and with respect to the
WorldGate Platform, the WorldGate Service (including without limitation the
Subscriber Accessible Content,) the elements, parts and derivations thereof
(including without limitation the writings, images, displays, electronic
reproductions, user interfaces, sounds, data, information and other works
embodied therein, derived therefrom or ancillary thereto, and the media of
reproduction, performance or exhibition thereof), as well as the intellectual
property rights related thereto, not specifically granted herein to Affiliate or
to Subscribers, shall be and are expressly and entirely
<PAGE>
reserved by WG and the applicable providers of such Subscriber Accessible
Content. The rights and licenses granted to Affiliate and the Subscribers
pursuant to this Affiliation Agreement do not include any right to sublicense
any third party, in whole or in part.
(b) Affiliate agrees that it is the essence of this Agreement that,
without the specific written consent of WG, or except as otherwise set forth
herein: (i) the WorldGate Platform shall not be modified by Affiliate in any
manner; (ii) the WorldGate Platform shall not be utilized by Affiliate for any
purpose other than to provide the WorldGate Service; and (iii) Affiliate shall
not authorize any other party to do any of the acts forbidden herein
(collectively, the "Prohibited Acts"). Affiliate shall immediately notify WG
upon the occurrence or likely occurrence of any Prohibited Acts of which it
becomes aware.
(c) The Parties recognize that each other's trademarks and brands are
significant assets of the Party owning the same and that any use of such
trademarks and brands shall only be with the other's prior consent and then only
in a manner consistent with that typically used with quality and valued
trademarks and brands, and intended to promote the good will associated with the
same. As part of diligently promoting the WorldGate Service, Affiliate agrees to
prominently display the applicable WG brands in all external communications
promoting Internet access for television such as, but not limited to,
advertisements, commercials, direct mail pieces, bill stuffers, and price lists.
4. PAYMENTS, ACCESS FEES AND TAXES:
(a) As consideration for the rights granted and services performed
hereunder with respect to the WorldGate Service, Affiliate shall pay to WG
Subscriber Access Fees as more fully set forth in Exhibit C. Notwithstanding the
required payment of a Subscriber Access Fee as described above, the Parties
agree and acknowledge that Affiliate is free to determine what fees, if any, it
charges its customers with respect to access to the WorldGate Service. All fees
due to WG hereunder are net of all duties, franchise fees and taxes (including
interest and penalties on any such amounts) now or hereafter imposed or based
upon the licensing, rental, purchase, shipment, delivery, transmission,
exhibition, possession, or use of the WorldGate Platform, the access to any
Subscriber Accessible Content, or any transfer of technology hereunder, but
excluding however any taxes assessed upon any of WG's income or personal
property (collectively "Taxes"). Affiliate shall indemnify and hold WG forever
harmless from any liability associated with such Taxes.
(b) Except for Subscriber Access Fees all payments hereunder, including
without limitation the purchase price of the components of the WorldGate
Platform to be acquired shall be made promptly at the net invoice price (i) in
cash before shipment, or (ii) upon written credit approval by WG, within
forty-five (45) days after the receipt of an invoice for the same. The above
notwithstanding, payment for the components of the WorldGate Platform which have
been shipped to Affiliate prior to the execution of this Affiliation Agreement
is due and shall be made on or before October 1, 1998. Subscriber Access Fees
are due within forty-five (45) days of the receipt of invoice for the same.
Interest shall accrue on all amounts not paid when due at a rate equal to the
lesser of twelve (12%) percent per annum or any maximum rate imposed under
applicable laws and regulations. Payments shall not be deferred or subjected to
setoff by Affiliate, the parties will however reasonably cooperate to adjust the
Subscriber Access Fees to reflect a pro-rata portion of any credits granted to
Subscribers which are not able to receive the WorldGate Service due to a failure
of the WorldGate Platform. Payments may not be
<PAGE>
suspended and shall continue during the pendency of any dispute hereunder.
All fees stated herein and all payments to be made to WG hereunder are
expressed in, and shall be made, in the currency of the United States unless
otherwise agreed in writing by the parties. WG reserves the right to change
or limit the amount or duration of any payment credit terms which may be
extended to Affiliate hereunder in the event of any change in the credit
worthiness of Affiliate as determined by WG in its sole discretion.
5. STATEMENTS AND REPORTS: To afford determination and/or verification of the
Subscriber Access Fees due WG shall provide to Affiliate an accounting
statement and report within forty-five (45) days after the beginning of each
calendar month in which the WorldGate Service is distributed hereunder. Said
statement shall include the following information to the extent applicable:
the number of Subscribers, the type of Subscriber accounts, the Subscriber
usage, and the total amount due for access to the WorldGate Service
hereunder. Such information may be provided electronically by Affiliate
access to computer terminals associated with the WorldGate Platform and/or in
connection with a third party standard billing interface. Affiliate
acknowledges that WG requires access to records and information relating to
Subscribers in order to provide such statements and reports and hereby
consents to the same.
6. AUDIT: During the term hereof and for a period of one year after any
expiration or termination hereof Affiliate and WG shall keep accurate and
complete books and records of Subscriber accounts and their access to and use of
the WorldGate Service. Subject to the confidentiality provisions contained
herein, each of the Affiliate and WG may, not more than once during each
calendar year and upon at least thirty days prior written notice, at its expense
and during regular business hours, have the right to audit all such books and
records of the other. Such audits shall be conducted by an internationally
recognized, independent public accounting firm chosen by the auditing Party on
the auditing Party's behalf. The audited Party agrees to fully cooperate with
auditing Party's representatives and/or designees, and shall provide such
representatives and/or designees with adequate space in which to facilitate any
audit of such books and/or records. If an audit or checking reveals a
discrepancy in the Subscriber Access Fees owed for the audit period, WG and
Affiliate agree to make prompt adjustments of such accounts along with any
required credits or payments associated therewith. Upon written agreement by the
parties such audit results shall be deemed final and binding upon the parties,
absent evidence of fraud.
7. REPRESENTATIONS AND WARRANTIES OF THE PARTIES:
(a) Each of the Parties represents and warrants that (i) it has the
authority and power to enter into this Agreement and to perform its obligations
hereunder; and (ii) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
and are deemed to be valid, binding and enforceable obligations.
8. INDEMNIFICATION AND CONTENT RISK ALLOCATION:
(a) WG shall indemnify Affiliate against (i) any award of damages and
costs made against Affiliate by a final judgment of a court of competent
jurisdiction in any such action, insofar as the same are based on a claim that
the WorldGate Platform infringes any United
<PAGE>
States patent, and (ii) any settlements or compromises made by WG as
described below. WG shall control the defense of any such action including
appeals, and all of negotiations thereof, including the right to effect any
settlement or compromise. In case the use of the WorldGate Platform is, in
any action, held to constitute such an infringement and the use thereof is
enjoined, WG shall, at its option and expense (x) procure for Affiliate the
right to continue using the WorldGate Platform, (y) replace or modify the
same so that it becomes non-infringing and performs the same service with
substantially the same quality, or (z) authorize Affiliate to return the
effected WorldGate Platform and provide Affiliate with a refund of the
purchase price, less an allowance for past use prorated based upon the
initial term of this Agreement. The above indemnity shall not apply to and WG
shall have no liability for any claim of infringement based on: (1) any use
of other than a current unaltered release of the WorldGate Platform; or (2)
any combination or use of the WorldGate Platform with non-WG hardware,
software, information, data or content, or (3) any use of the WorldGate
Platform other than is authorized herein. The foregoing states the entire
liability with respect to infringement of any intellectual property rights
with regard to the WorldGate Platform.
(b) Affiliate shall indemnify WG against (i) any award of damages and
costs made against WG by a final judgment of a court of competent jurisdiction
in any such action, insofar as the same are based on a claim of infringement
arising out of: (1) any use of other than a current unaltered release of the
WorldGate Platform; or (2) any combination or use of the WorldGate Platform with
non-WG hardware or software, or (3) any use of the WorldGate Platform other than
is authorized herein, and (ii) any settlements or compromises made by Affiliate
as described below.
(c) The Parties agree that damages and costs may arise hereunder as a
result of claims and disputes by third parties against one or both of the
Parties with respect to the Subscriber's use of Subscriber Accessible Content,
which is beyond the responsibility and/or control of the Parties. In this regard
the Parties will agree upon and implement terms and conditions for Subscriber
use of the WorldGate Service which require Subscriber's acknowledgment of such
factors as are set forth in Paragraph 1(e) of this Agreement and Subscriber's
agreement that any access to and use of Subscriber Accessible Content is and
will be the sole responsibility of the Subscriber. Subscriber's agreement to
these terms and conditions of use will be a pre-requisite to activating a
Subscriber account. Furthermore, the Parties agree to cooperate in good faith
and to take such actions as are reasonable and consistent with prudent business
practices with respect to the defense and/or settlement of such third party
claims and disputes and the equitable allocation of the resulting damages and
costs, including, without limitation, providing the other prompt notice in
writing of any such claim of which it becomes aware. The Parties acknowledge
that from time to time WG, Affiliate or both Parties may receive notice that
Subscriber Accessible Content is alleged to violate the copyright of one or more
entities ("NCL"). Upon receipt of an NCL, the Party receiving said NCL shall
notify the other Party and both Parties shall take such actions as are
reasonable and consistent with prudent business practices with respect to the
NCL.
(d) In any case in which indemnification is sought hereunder:
(i) The party seeking indemnification shall promptly notify
the other party in writing upon the initiation of any claim or litigation to
which the indemnification relates;
<PAGE>
(ii) The party seeking indemnification shall afford the other
party the opportunity to participate in, and, at the option of such other party,
to control, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
(iii) The party seeking indemnification shall fully cooperate
with the reasonable requests of the other party in its participation in, and
control of, any compromise, settlement, litigation or other resolution or
disposition of any such claim.
9. RENEWAL, TERMINATION AND DEFAULTS:
(a) Upon the expiration of the initial Term hereunder this Agreement
shall be automatically renewed for additional successive two (2) year periods
thereafter unless terminated by either Party upon ninety (90) days written
notice prior to the expiration of such initial Term or any renewal period, as
applicable. The Subscriber Access Fees payable during any renewal period shall
be WG's then current published rates or such other rates as may be agreed by the
parties in writing.
(b) In addition to all of its other rights and remedies at law and in
equity, either party shall be entitled at its option forthwith, upon giving
notice to the other party, to terminate this Agreement and all licenses granted
hereunder, (i) if said other party shall fail to perform any of its obligations
or undertakings required of it hereunder, or shall be in breach of any of its
warranties or representations herein contained, and shall not have cured or
remedied such failure or breach within sixty (60) days of written notification
thereof; provided, however that with respect to any failure to pay Subscriber
Access Fees such cure period shall be reduced to ten (10) business days from the
date of written notification hereunder; (ii) if a party hereunder commences a
voluntary case under Title 11 of the United States Bankruptcy Code as now and
hereafter in effect, or any successor statute, or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or a party consents
to the entry of an order for relief in an involuntary case, or to the conversion
of a voluntary case to an involuntary case, under any such law, or consents to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; a party makes any
assignment for the benefit of creditors; a party is unable or fails or admits in
writing of its inability or failure to pay its debts as such debts become due;
or the Board of Directors or other governing body of a party adopts any
resolution or otherwise approves authorization to act upon any of the foregoing,
such action shall be deemed a breach hereunder; or (iii) if any order, judgment
or decree is entered against decreeing the dissolution or split-up of such
party, and such order remains undischarged or unstated for a period in excess of
thirty (30) calendar days, such action shall be deemed a breach hereunder.
(c) Sections 8-12, and 14-16, as well as any obligation which has
accrued prior to any expiration or termination of this Agreement shall survive
such expiration or termination by a period not to exceed five (5) years from
such expiration or termination. All outstanding amounts owing hereunder shall
become immediately due and payable in the event of any expiration or termination
of this Agreement.
10. NON-WAIVER OF BREACH; REMEDIES CUMULATIVE; LIMITATION ON DAMAGES:
<PAGE>
(a) A waiver by either party of any of the terms or conditions of this
Agreement shall not, in any instance, be deemed or construed to be a waiver of
such terms or conditions for the future or of any subsequent breach thereof. No
payment or acceptance thereof under this Agreement shall operate as a waiver of
any provision hereof.
(b) Except as set forth herein all remedies, rights, undertakings,
obligations and agreements contained in this Agreement shall be cumulative and
none of them shall be in limitation of any other remedy, right, undertaking,
obligation, or agreement of either party. IN NO EVENT SHALL EITHER PARTY
HEREUNDER BE LIABLE TO THE OTHER FOR SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING
WITHOUT LIMITATION ANY LOST PROFIT OR INVESTMENT AND THE LIKE), INDIRECT OR
INCIDENTAL DAMAGES, BY WAY OF INDEMNITY OR OTHERWISE.
(c) In no event shall WG be liable for damages in excess of the amounts
paid to WG hereunder with respect to the particular subject matter giving rise
to such damages.
11. NOTICES: Except as herein otherwise expressly provided, all notices,
statements and other documents desired or required to be given hereunder shall
be in writing and shall be given by overnight courier service or other personal
delivery, email or fax or other comparable immediate electronic transmission
(with a copy sent by regular U.S. mail).
All notices, statements and other documents shall be sent to:
If to WG:
Accounting statements and All other notices should be sent to:
remittances should be sent to:
WORLDGATE COMMUNICATIONS, INC. WORLDGATE COMMUNICATIONS, INC.
3220 Tillman Drive, Suite 300 3220 Tillman Drive, Suite 300
Bensalem, PA 19020 Bensalem, PA 19020
Attn: Accounting Services Attn: Affiliate Administration
with a copy to the General Counsel
If to Affiliate:
CABLE BAHAMAS, LTD.
Robinson Road
P.O. Box CB - 13050
Nassau, Bahamas
Attn: Rick Pardy
(or at such other address as may be designated in writing by either party no
less than thirty (30) days prior to the date of transmission of the notice,
statement, etc.). Notice given by electronic transmission, courier service or by
personal delivery shall be deemed given upon delivery by the transmission
service or messenger.
<PAGE>
12. GOVERNING LAW AND EXPORT RESTRICTIONS: All matters pertaining to this
Agreement (including its interpretation, validity, performance and breach), in
whatever jurisdiction action may be brought, shall be governed by the laws of
the State of Delaware (excluding its conflict of law provisions). The parties
hereto expressly consent and agree to submit to the jurisdiction of any court of
competent jurisdiction in the State of Delaware, and to accept service of
process outside the State of Delaware in any matter to be submitted to any such
court pursuant hereto. Wherever there is any conflict between any provision
hereof and any law or requirement with the force of law, this Agreement shall
remain valid and such provision hereof shall be restricted to the extent, and
only to the extent, necessary to bring it within the applicable requirements,
unless such restriction shall, in the opinion of WG, have the effect of
materially nullifying, or impairing, this Agreement. Affiliate shall comply
fully with all then current applicable laws and regulations relating to the
export of products and technical data including, but not limited to, any
regulations of the United States Office of Export Administration.
13. FORCE MAJEURE: Neither party shall, in any manner whatsoever, be liable or
otherwise responsible for any delay or default in, or failure of performance
(other than the failure to make payments hereunder) resulting from or arising
out of or in connection with, any "Event of Force Majeure" and no such delay,
default in, or failure of performance shall constitute a breach by either party
hereunder. For purposes of this Agreement, an "Event of Force Majeure" in
respect of a party shall mean any act, cause contingency or circumstances beyond
the reasonable control of such party, including, without limitation, and to the
extent beyond the control of such other party, any governmental action,
nationalization, expropriation, confiscation, seizure, allocation, embargo,
prohibition of import or export of goods or products, regulation, order or
restriction (whether foreign, federal or state), war (whether or not declared),
civil commotion, disobedience or unrest, insurrection, public strike, riot or
revolution, lack of or shortage of, or inability to obtain, any labor,
machinery, materials, fuel, supplies or equipment from normal sources of supply,
strike, work stoppage or slowdown, lockout or other labor dispute, earthquake,
hurricane, other natural calamity, damage or destruction to plant and/or
equipment, fire or any other accident, condition, cause, contingency or
circumstance (including, without limitation, acts of God) within or without the
United States beyond the reasonable control of such party.
14. CONFIDENTIALITY:
(a) The recipient of any confidential information of the other
hereunder agrees to safeguard the confidentiality of such confidential
information by applying policies and procedures adequate for that purpose,
including without limitation, restricting the disclosure of this confidential
information to employees and consultants needing to know the same for the
purpose of this Agreement, who have agreed in writing to safeguard such
confidential information in a manner consistent with the provisions of this
paragraph. The recipient shall not disclose any such confidential information to
any other person, firm or corporation, or use the same except for the purpose
stated hereinabove, and shall exercise at least the same degree of care to guard
against disclosure or unauthorized use of such confidential information, as the
recipient employs with respect to its own confidential information, but in no
event less than reasonable care.
(b) The recipient shall have no obligation of confidentiality hereunder
with respect to any information which:
<PAGE>
(i) is already properly known to the recipient other than as a
result of a prior confidential disclosure by the disclosing Party;
(ii) is or becomes publicly known otherwise than by the
recipient's (or someone receiving the information from recipient) fault or
breach of this Agreement;
(iii) is rightfully received by the recipient without restriction
from a third party who is not under an obligation of confidentiality, directly
or indirectly, to the disclosing Party;
(iv) is independently developed by the recipient without benefit
of the confidential information received hereunder;
(v) is approved for release in writing by the disclosing Party;
or
(vi) is required to be disclosed by the recipient pursuant to
judicial or regulatory action, provided that the disclosing party is promptly
notified at the time such action is initiated and the recipient fully cooperates
with the disclosing Party in seeking continued confidential treatment of such
information to the extent possible.
(c) Except as may be reasonably required by applicable law, regulation
or court order, the Parties agree that neither of them shall publicly divulge or
announce, or in any manner disclose to any third party, other than its attorneys
and accountants, any of the specific terms and conditions of this Agreement,
including without limitation the Subscriber Access Fees payable hereunder, and
the parties further warrant and agree that none of their officers, directors or
employees will do so.
15. PROCEDURE PRIOR TO LITIGATION: Prior to initiating any litigation with
respect to any controversy, claim or dispute arising hereunder or related
hereto, but excluding any claim arising under Sections 3 or 14 of this Agreement
(a "Dispute") a Party must first notify the other Party and request in writing
that such Dispute be submitted to an executive committee consisting of one
senior ranking executive named by each of the Parties for such purpose. Such
named executive shall have the authority and be capable of making binding
decisions on behalf of such Party with respect to such Dispute. Within five (5)
business days following the receipt of such notice (or such other period as may
be agreed by the Parties) each Party shall have named its executive committee
participant, and within ten (10) business days following the receipt of such
notice (or such other period as may be agreed by the Parties) the executive
committee shall meet to discuss the Dispute. If the executive committee is not
able to resolve the Dispute within twenty (20) business days following the
receipt of such notice (or such other period as may be agreed by the Parties),
then either Party may proceed with the initiation of such litigation as may be
appropriate.
16. MISCELLANEOUS; ENTIRE UNDERSTANDING: The titles of the paragraphs of this
Agreement are for convenience only and shall not in any way affect the
interpretation of this Agreement. This Agreement does not in any way create the
relationship of franchise, joint venture, partnership or agency between WG and
Affiliate, and each shall remain an independent contractor, and as such shall
not act or represent itself, directly or by implication, as agent for the other
or assume or create any obligation of or in the name of the other. This
Agreement will inure to the benefit of and be binding upon the Parties and their
respective representatives, and permitted successors and assignees. This
Agreement, including the Exhibits identified herein, sets forth the entire
understanding of the parties with respect to the subject matter hereof, and all
oral agreements and all prior written agreements with respect to such subject
matter have been merged herein. No representations or warranties have been made
other than those expressly provided for herein. This Agreement may not be
modified, except by a written
<PAGE>
instrument signed by an authorized representative of the parties, and this
provision may not be waived except by written instrument signed by an officer
of the parties. This Agreement may be executed in any number of counterparts,
with each such counterpart deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. In the
event this agreement is translated into any foreign language counterpart, the
English language counterpart shall remain controlling. This Agreement shall
be presumed to have been negotiated and drafted by both Parties for the
purpose of construing any ambiguities hereunder.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE SIGNED AND
ACCEPTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST
WRITTEN ABOVE.
Affiliate: CABLE BAHAMAS, LTD. WG
By: /s/ unintelligible By: /s/ Peter Mondics
------------------------------ ------------------------------
Name: unintelligible Name: Peter Mondics
Title: President & COO Title: VP Sales
Date: September 30, 1998 Date: September 30, 1998
Tel.: 242-356-6780 Tel.: 215-633-5100
Fax: 242-356-8982 Fax: 215-633-9590
<PAGE>
EXHIBIT A
TELEVISION DISTRIBUTION SYSTEMS
<TABLE>
<CAPTION>
SYSTEM NAME MAILING ADDRESS BASIC SUBSCRIBERS
----------- --------------- -----------------
<S> <C> <C>
## ## ##
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
</TABLE>
Each System identified above must include at least the following minimum
facilities (to be supplemented as the Subscriber base grows):
(a) dedicated Internet Access Link - T1 or equivalent with comparable
data rates
(b) Cisco 2501 Router with IP Software (or approved
equivalent)
(c) Kentrox D-Serv CSU/DSU (or approved equivalent)
- -----------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
EXHIBIT B
WORLDGATE PLATFORM
PLATFORM COMPONENTS AND PRICING:
Set forth below are the standard components of the WorldGate Platform and the
price for the same as of the effective date set forth below. Such prices are FOB
WG's factory, and are valid for a period of one-year from this effective date
after which time they are subject to change by WG to reflect current market
conditions, provided that WG represents that such prices as WG will charge
Affiliate for these standard components will be no less favorable than those
contemporaneously charged to like affiliates under terms and conditions
comparable to those set forth herein.
<TABLE>
<CAPTION>
FIRST UNIT IN A OTHER UNITS--SAME
ITEM HEADEND HEADEND
---- --------------- -----------------
<S> <C> <C>
Headend Package (analog) ## ##
Large System Headend Package (analog) ## ##
Channel HyperLinking Server ## ##
WorldGate Keyboard* ## ##
</TABLE>
- ------------
* Non-U.S. language keyboards will be quoted separately.
Custom configuration options are available and will be quoted separately if
required based upon the results of a site survey and expected Subscriber base.
The above prices do not include site surveys and installation which are
available on a time and material basis at WG's customary rates (plus travel and
per diem charges.) The above prices do not include any improvements and/or
modifications to Affiliate's Systems. Notwithstanding the use of the term
"purchase" herein, such WorldGate Platform as acquired hereunder includes
certain WorldGate and third party software, microcode and documentation, whether
stored in electronic (including firmware), magnetic, optical or other media
(collectively Programs) for which title to and all proprietary rights in are
reserved to WG and its suppliers. All access to and use of such Programs is
subject to the terms and conditions of WG's Software License attached hereto and
incorporated herein as Exhibit B-1.
LIMITED PRODUCT WARRANTY:
- ------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT.
<PAGE>
WG hereby warrants that as installed hereunder and for a period of twelve months
thereafter ( but not more than thirteen months after delivery if there is a
delay between delivery and installation other than as may result from the
actions and/or omissions of WG) such WorldGate Platform components will perform
under normal use and service substantially in the manner specified in the
current applicable published technical specification as issued by WG prior to
the execution of this Agreement, and that for this period the hardware
components of the WorldGate Platform will be free from defects in materials and
workmanship. This warranty shall not apply to any items subjected to accident,
misuse, neglect, mishandling, unsuitable physical or operating environments or
any installation, testing, repair, adjustment or alteration by anyone other than
WG or its authorized vendors, or any use of non-approved components in
connection with the WorldGate Platform. WG's warranty hereunder extends to
Affiliate only, and to no other person or entity. This warranty shall not be
enlarged or otherwise affected by, and no obligation or liability shall arise
hereunder by WG's rendering of technical advice, help line support or service in
connection with the products furnished hereunder. Any claims arising out of the
aforesaid warranty must be submitted to, and the affected components must be
returned or otherwise made available to WG in accordance with its published
procedures, during the specified warranty period. Subject to the preceding
conditions, WG will promptly examine such WorldGate Platform components and
repair or replace any such components which are defective with respect to the
above warranty. Any required service, repair or replacement (and the costs and
expenses associated therewith) which are not covered by the above warranty will
be the responsibility of Affiliate unless covered by an applicable WG service
contract.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY
WARRANTY HEREUNDER, EXPRESS OR OTHERWISE, IS LIMITED TO THE WARRANTY TERM AND
CONDITIONS AS SET FORTH ABOVE.
AFFILIATE TECHNICAL SUPPORT:
WG will at no additional charge to Affiliate provide technical support to
Affiliate's customer service and engineering staff, 7 days per week, 24 hours
per day, with such support to be provided by telephone, facsimile and/or the
Internet. Except as is provided by WG pursuant to the terms and conditions of
any applicable service contract or WG's written warranty herein, any required
travel from WG's facilities or support in addition to that provided by
telephone, facsimile or Internet hereunder will require payment for time and
materials at WG's customary rates, as well as reimbursement for travel and per
diem charges.
ON SITE TRAINING:
Prior to the initial launch of the WorldGate Service on Affiliate's Systems WG
will conduct one on site technical and customer service training program of up
to 3 days in duration. Additional training will be available on a time and
materials basis at WG's customary rates, as well as reimbursement for travel,
lodging and other per diem charges.
<PAGE>
PLANT SPARES:
WG and Affiliate will cooperate to formulate and implement a recommended program
for spare parts inventory, local maintenance strategy and emergency response.
SOFTWARE RELEASES AND UPGRADES:
WG shall provide at no additional cost to Affiliate such bug fixes and other
software releases as it makes available without charge to its other affiliates,
and will use commercially reasonable efforts to notify Affiliate when it becomes
aware of such bugs.
<PAGE>
EXHIBIT B-1
SOFTWARE LICENSE
The terms and provisions of this Exhibit B-1 (Software License) provide for the
licensing by WG to Affiliate of certain Programs (as such term is defined in the
Affiliation Agreement) furnished with and to be used either as part of or in
conjunction with the WorldGate Platform to be provided by WG to Affiliate under
an Affiliation Agreement, of which this Exhibit forms a part.
1. GRANT OF LICENSE: WG (hereinafter Licensor) hereby grants to Affiliate
(hereinafter Licensee) and Licensee hereby accepts a personal, nonexclusive
license to use the Programs on the terms and conditions set forth herein and in
the Affiliation Agreement. Except as specifically provided herein and therein,
no interest, right or license, express or implied, is granted, and such other
interests, rights and licenses are hereby reserved.
2. OWNERSHIP RIGHTS: Any reference to sale or purchase not withstanding, title
to the Programs and all copies and derivatives thereof shall be and remain in
Licensor, and no title to or ownership of the Programs or any derivative or
portion thereof is conveyed or transferred to the Licensee. Licensee
acknowledges that the Programs constitute confidential and proprietary
information and trade secrets of Licensor, whether or not the Programs, or any
portion thereof, are or may be copyrighted or copyrightable and/or patented or
patentable, and that disclosure of the Programs to Licensee is on the basis of
the confidential relationship between Licensee and Licensor under this
Agreement.
3. RESTRICTION ON TRANSFER: Licensee shall not sell, assign, sub-license,
transfer, or otherwise make available the Programs, in whole or in part, except
as may be permitted by this Software License Agreement.
4. RESTRICTION ON USE, DISASSEMBLY AND REVERSE ENGINEERING: Licensee may use the
Programs solely and exclusively on the computer(s) and associated peripherals
furnished by WG as part of the WorldGate Platform sold to Affiliate under terms
of the Affiliation Agreement, except that the Programs may also be temporarily
used on or with a compatible backup computer and associated peripherals if the
WorldGate Platform computers and associated peripherals are inoperative because
of malfunction or during the performance of preventive maintenance or
engineering changes, but only for such reasonable time as required to restore
such WorldGate Platform to operative status. Licensee shall use the Programs
only in connection with its immediate internal operations with respect to the
provision to its customers of the WorldGate Service as authorized by the
Affiliation Agreement, and shall not otherwise use nor offer or supply the use
of the Programs to others under any circumstance. Licensee shall not de-compile,
disassemble or otherwise reverse engineer the Programs.
5. RESTRICTION ON COPYING: Licensee shall make no copies (including any
derivatives) of the Programs, or any part thereof, except that Licensee may make
one (1) copy of the Program solely for the purposes of backup and archival
storage. All copies shall be clearly marked by Licensee with the same Licensor
proprietary and copyright restrictions which appear on the Programs originally
supplied to Licensee, and be stored by Licensee in a secure manner.
6. RESTRICTION ON DISCLOSURE: Except as expressly permitted herein, Licensee
shall not disclose or otherwise make available the Programs, or any portion
thereof, to any third party or to any employee or agent of Licensee who is not
of necessity reasonably authorized by Licensee to access and use the Programs as
part of Licensee's provision of the WorldGate Service. Licensee shall take all
reasonable steps necessary to ensure the Programs, or any portions, copies or
derivatives thereof, are not disclosed or otherwise made available by Licensee
(or employees or agents of Licensee) to any third party except as aforesaid.
7. TERMS AND TERMINATION: The term of this License Agreement and the license
granted hereunder shall commence on the date hereof, and shall terminate on the
earlier of: (a) when Licensee ceases to offer the WorldGate Service or when
Licensee ceases to operate or de-installs the WorldGate Platform; or (b) the
termination or expiration of the Affiliation Agreement or the failure of
Licensee to comply with any of the terms and provisions hereof or of the
Affiliation Agreement (including without limitation, the failure to pay any fees
when due), which failure continues for a period of ten (10) days after written
notice thereof.
Upon termination of this Software License Agreement all rights to use the
Programs shall terminate and Licensee shall immediately cease use of the
Programs, and shall, within one (1) month after any such termination return the
<PAGE>
Programs and all copies thereof to WG (or upon WG's written request destroy the
same,) and furnish WG a written statement certifying that the original and all
copies and extracts (including partial copies and extracts) of the Programs and
any related material received from WG or made in connection with such license
have been returned to WG, or destroyed pursuant to WG's written request. WG
reserves all rights and remedies, whether provided by contract, at law, in
equity and/or otherwise, to enforce it rights under this license. Licensee
acknowledges and agrees that any breach or threatened breach of this software
license shall cause WG irreparable injury for which there may be no adequate
remedy at law, and that in addition to any other remedies available, WG shall be
entitled to obtain injunctive relief as well as actual damages.
Affiliate Initials: /s/ unintelligible WG Initials: /s/ unintelligible
------------------ ------------------
Effective Date: October 1, 1998
<PAGE>
EXHIBIT C
SUBSCRIBER ACCESS FEES
SERVICE ACCESS FEES FOR PRIVATE RESIDENCES:
The following WorldGate Service Access Fees are payable by Affiliate to WG on a
monthly basis for each Private Residence having access to the WorldGate Service
during such month (prorated based upon a 30 day month for Private Residences
having access to the WorldGate Service for less than a full calendar month). The
table set forth below includes various benchmarks which, if achieved, will
result in an adjustment in the particular amount payable for such Access Fees.
Affiliate's performance with respect to these benchmarks and the resultant
amounts payable hereunder shall be determined on an aggregate System wide basis
based on the results of all Systems hereunder. Any adjustment in the amount
payable for such Access Fees shall apply only for prospective periods after the
benchmarks have been achieved, and then only after written notice has been
provided by Affiliate to WG providing the details as to such achievement.
For purposes of determining the applicable rate for the Service Access Fees
payable hereunder for the Systems (x) the number of "WorldGate Private
Residences" for any month shall mean the average number of actual Private
Residences to the WorldGate Service for that month and shall include only the
Private Residences being invoiced for and paying the standard retail charge
which Affiliate invoices its customers for the WorldGate Service (Service Access
Fees are, however, payable by Affiliate to WG for all Private Residences
receiving access to the WorldGate Service irrespective of whether such standard
retail charge or any payment is made by such Private Residences to Affiliate),
and (y) the number of AWorldGate Capable Customers for any month shall mean the
average number of Affiliate's actual customers (including only those customers
being invoiced for and paying the standard retail charge which Affiliate
invoices for its television programming distribution service) which during the
month had sufficient System architecture and Head-end Package components of the
WorldGate Platform installed and operational to permit such customer to have
become a WorldGate Private Residence, had the customer so chosen, and (z) the
APenetration for any month shall mean the number of WorldGate Private Residences
divided by the number of WorldGate Capable Customers as determined above.
Monthly averages hereunder shall be determined dividing by two the sum of the
applicable number on the first and last business days of the month.
FOR AFFILIATES OFFERING THE WORLDGATE SERVICE AS AN UNLIMITED USAGE SERVICE ON
AN A' LA CARTE BASIS (INCLUDES AN ALLOTTED USAGE TIME PER SUBSCRIBER PER MONTH
WHICH IS NOT LIMITED IN NUMBER OF HOURS).
[INFORMATION REDACTED] ##
In addition to the Service Access Fees as set forth above Affiliate shall pay
to WG as Private Residence Access Fees in the event the amount which
Affiliate invoices and/or otherwise charges its customers as part Affiliate's
standard monthly retail price for the WorldGate Service exceeds U.S. ## for
an unmetered service, an amount equal to [INFORMATION REDACTED] ## percent of
such excess. For purposes of this paragraph such standard retail prices shall
be determined using the currency exchange rate specified in the Wall Street
Journal on the last business day prior to the month in question.
[INFORMATION REDACTED] ##
SERVICE ACCESS FEES FOR NON-PRIVATE RESIDENCES: In the event that Affiliate
provides the WorldGate Service to Commercial Establishments Affiliate shall
pay to WG on a monthly basis as Commercial Establishment Access Fees an
amount equal [INFORMATION REDACTED] ##. [For example, if the aggregate
monthly gross consideration for Commercial Establishments is [INFORMATION
REDACTED] ##, the standard monthly retail price is [INFORMATION REDACTED]
## and the applicable Service Access Fee then in place for Subscribers is
[INFORMATION REDACTED] ##, then the Commercial Establishment Access Fee
payable would be ([INFORMATION REDACTED] ##)]. [INFORMATION REDACTED] ##
OTHER TRANSACTIONAL REVENUE OPPORTUNITIES:
The parties anticipate that the Subscriber Accessible Content will include
opportunities to generate revenue from third parties through Channel
HyperLinking, advertising, commodity buying/selling, lead generation and
similar services, whether through direct hits or click-throughs (collectively
"Transactions") which may be facilitated by the WorldGate Platform. The
Parties further recognize that such opportunities may require commitments
with advertising agencies and other third parties as well as administrative,
accounting, and other services and associated costs, fees, and expenses in
order to permit such revenue to be generated. The Parties will work together
to
- ------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
maximize such opportunities. Any net revenue which is generated as a result of
such services as the Parties agree to make available to Subscribers as part of
the WorldGate Service hereunder will be shared as follows by WG and Affiliate,
after payment of such associated costs, fees, and expenses, and subject to any
required commitments as aforesaid.
Fees and other consideration generated through Transactions facilitated by the
use of the WorldGate Service, but other than through the use of Channel
HyperLinking, will be [REMAINDER OF PARAGRAPH REDACTED]##
Fees and other consideration generated through Transactions facilitated by
Channel HyperLinking will be [INFORMATION REDACTED] ##.
- ------------
## THE INFORMATION CONTAINED IN THIS PORTION OF THE EXHIBIT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES & EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
<PAGE>
Exhhibit 23.1
Consent Of Independent Accountants
We consent to the inclusion in this Registration Statement on Form
S-1 of our report, which will be issued upon the effectiveness of the stock
split as described in Note 10 to the financial statements, dated February 8,
1999 except as to the information in Note 10,for which the date is ,
1999, on our audits of the financial statements of Worldgate Communications,
Inc. We also consent to the references to our firm under the captions
"Selected Financial Data" and" Experts."
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
April 7,1999
