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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
OR
__ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
[COMMISSION FILE NUMBER 0-21379]
FOR THE TRANSITION PERIOD FROM _______________ TO ______________
ROWECOM INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3370008
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
15 SOUTHWEST PARK, WESTWOOD, MA 02090
(Address of principal executive office)
(617) 497-5800
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ---
Number of shares outstanding of the issuer's common stock as of
April 30, 2000
Common Stock, per value $.01 per share 10,339,458
--------------------------------------- --------------------
Class Number of shares
outstanding
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ROWECOM INC.
INDEX
<TABLE>
<CAPTION>
ITEM PAGE
NUMBER NUMBER
- ------ ------
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
ROWECOM INC.
Consolidated Balance Sheets at March 31, 2000 and December 31, 1999 ............ 3
Consolidated Statements of Operations for the three months ended
March 31, 2000 and March 31, 1999 ............................................. 4
Consolidated Statements of Cash Flows for the three months ended March 31,
2000 and March 31, 1999 ....................................................... 5
Notes to Consolidated Financial Statements ...................................... 6
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations.................................................................. 7
PART II. OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds........................................ 13
Item 6. Exhibits and Reports on Form 8-K................................................. 13
Signatures....................................................................... 14
</TABLE>
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PART I -- FINANCIAL INFORMATION
ITEM 1. CONSOLIDATED FINANCIAL STATEMENTS
RoweCom Inc.
Consolidated Balance Sheets
(in thousands, except share data)
<TABLE>
<CAPTION>
AT MARCH 31, AT DECEMBER 31,
2000 1999
------------ ---------------
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents ................................. $ 9,292 $ 13,264
Accounts receivable (net of allowance for doubtful
accounts of $761 and $1,847) .............................. 73,898 137,512
Other current assets ...................................... 15,223 12,306
--------- ---------
Total current assets .................................. 98,413 163,082
Property and equipment, net .................................... 10,342 10,787
Goodwill, net .................................................. 6,850 7,411
Intangible and other assets, net ............................... 33,153 34,328
--------- ---------
Total assets .......................................... $ 148,758 $ 215,608
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current liabilities:
Accounts payable .......................................... 23,071 51,595
Accrued expenses .......................................... 7,603 9,005
Accrued compensation ...................................... 1,976 2,511
Customer advances ......................................... 12,740 20,095
Deferred revenue .......................................... 11,864 11,187
Loans payable ............................................. 46,653 61,060
--------- ---------
Total current liabilities ............................. 103,907 155,453
Commitments
Stockholders' equity:
Common stock, $.01 par value per share, 34,000,000 shares
authorized, 10,399,208 and 10,377,559 shares issued and
outstanding, respectively ................................. 104 104
Additional paid-in capital ................................ 89,972 89,907
Treasury stock, at cost ................................... (53) (53)
Accumulated deficit ....................................... (44,339) (29,338)
Accumulated other comprehensive loss ...................... (833) (465)
--------- ---------
Total stockholders' equity ............................ 44,851 60,155
--------- ---------
Total liabilities and stockholders' equity ............ $ 148,758 $ 215,608
========= =========
</TABLE>
The accompanying notes to the unaudited consolidated financial statements
are an integral part of these statements.
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RoweCom Inc.
Consolidated Statements of Operations
(in thousands, except share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
---------------------------
MARCH 31, MARCH 31,
2000 1999
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<S> <C> <C>
Revenues ............................................. $ 51,787 $ 1,699
Cost of revenues ..................................... 47,340 1,527
-------- --------
Gross profit ................................... 4,447 172
Operating expenses:
Sales and marketing ............................... 8,671 1,894
Research and development .......................... 2,961 818
General and administrative ........................ 4,162 725
Amortization of goodwill and intangibles .......... 1,613 --
-------- --------
Total operating expenses ................... 17,407 3,437
-------- --------
Loss from operations ...................... (12,960) (3,265)
Interest and other income, net ....................... (1,821) 251
-------- --------
Loss before income taxes .................. (14,781) (3,014)
Provision for income taxes ........................... 220 --
-------- --------
Net loss .................................. $(15,001) $ (3,014)
======== ========
Basic and diluted net loss per share
Historical
Basic and diluted net loss per share to common
stockholders ...................................... $ (1.44) $ (.93)
Weighted average shares used in computing basic
and diluted net loss per share .................... 10,386 3,619
Pro forma
Basic and diluted net loss per share to common
stockholders ...................................... -- $ (.41)
Weighted average shares used in computing basic
and diluted net loss per share .................... -- 7,394
</TABLE>
The accompanying notes to the unaudited consolidated financial statements
are an integral part of these statements.
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RoweCom Inc.
Consolidated Statements of Cash Flows
(in thousands)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
----------------------------
MARCH 31, MARCH 31,
2000 1999
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<S> <C> <C>
Cash flows from operating activities:
Net loss ...................................................... $(15,001) $ (3,014)
Adjustments to reconcile net loss to net cash provided by
(used in) operating activities:
Depreciation and amortization ................................. 2,363 83
Amortization of discount on convertible notes ................. 809 --
Changes in operating assets and liabilities:
Accounts receivable ........................................... 53,507 714
Other current and long term assets ............................ 1,128 564
Accounts payable .............................................. (27,236) (68)
Income taxes payable .......................................... (133) --
Accrued expenses and accrued compensation ..................... (1,684) (196)
Customer advances ............................................. (3,719) --
Deferred revenue .............................................. 709 16
-------- --------
Net cash provided by (used in) operating activities ........... 10,743 (1,901)
Cash flows from investing activities:
Purchase of property and equipment ............................ (449) (233)
Cash paid to acquire business, net of cash acquired ........... (105) --
-------- --------
Net cash used in investing activities ......................... (554) (233)
Cash flows from financing activities:
Net proceeds from the issuance of common stock ................ 65 51,927
Loan repayments ............................................... 50,447 (1,380)
Loan proceeds ................................................. (64,480) --
-------- --------
Net cash provided by (used in) financing activities ........... (13,968) 50,547
Effect of exchange rates on cash .............................. (193) (2)
Net increase (decrease) in cash and cash equivalents .......... (3,972) 48,411
Cash and cash equivalents, beginning of period .................... 13,264 16,974
-------- --------
Cash and cash equivalents, end of period .......................... $ 9,292 $ 65,385
======== ========
SUPPLEMENTARY INFORMATION:
Accretion of preferred stock .................................. -- $ 369
Income taxes paid ............................................. $ 117 --
Interest paid ................................................. $ 688 --
</TABLE>
The accompanying notes to the unaudited consolidated financial statements
are an integral part of these statements.
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ROWECOM INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. THE COMPANY
The consolidated financial statements include the accounts of RoweCom Inc.
("RoweCom") and its wholly owned subsidiaries. All significant intercompany
accounts and transactions between RoweCom and its subsidiaries, included in
the accompanying financial statements, have been eliminated.
2. INTERIM RESULTS
As permitted by the rules of the Securities and Exchange Commission applicable
to Quarterly Reports on Form 10-Q, these notes are condensed and do not contain
all the disclosures required by generally accepted accounting principles.
Reference should be made to the consolidated financial statements and related
notes included in RoweCom's Registration Statement on Form 10-K for the year
ended December 31, 1999, as filed with the Securities and Exchange Commission on
March 16, 2000.
In the opinion of the management of RoweCom, the accompanying unaudited
consolidated financial statements contain all adjustments (consisting primarily
of normal recurring accruals) considered necessary for a fair statement of the
results for the interim period.
The results disclosed in the Consolidated Balance Sheet at March 31, 2000, the
Consolidated Statement of Operations for the three months ended March 31, 2000,
and the Consolidated Statement of Cash Flows for the three months ended March
31, 2000 are not necessarily indicative of the results to be expected for the
full year.
The preparation of the 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 the contingent assets and liabilities at the date of the financial
statements and the reported amounts of expense during the reporting period.
Actual results could differ from those estimates.
3. NET LOSS PER COMMON SHARE
Basic net loss per share excludes the effect of any dilutive options,
warrants or convertible securities and is computed by dividing income
available to common stockholders by the weighted average number of common
shares outstanding for the period. Diluted earnings per share reflects the
potential dilution that could occur if securities or other contracts to issue
common stock were issued, exercised or converted into common stock. Dilutive
common share equivalents consist of stock options and warrants calculated
using the treasury stock method.
The pro forma net loss per common share is computed based upon the weighted
average number of common shares and common equivalent shares (using the
treasury stock method) outstanding after certain adjustments described below.
Common equivalent shares are not included in the per share calculations where
the effect of their inclusion would be anti-dilutive. In the computation of
pro forma net loss per share, accretion of preferred stock to the mandatory
redemption amount is not included as an increase to net loss. Also, the pro
forma net loss per common share gives effect to the exchange of all
outstanding preferred stock of RoweCom Canada into preferred stock of
RoweCom, the mandatory conversion of all outstanding shares of preferred
stock into shares of common stock and the exercise of all outstanding stock
purchase warrants.
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The following is a calculation of net loss per share:
(dollars in thousands, except per share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
----------------------------
MARCH 31, MARCH 31,
2000 1999
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<S> <C> <C>
Historical
Basic and diluted:
Net loss to common stockholders ..................... $(15,001) $ (3,383)
Weighted average number of common shares ............ 10,386 3,619
Net loss per common share--basic and diluted ........ $ (1.44) $ (.93)
Pro forma
Basic and diluted:
Net loss ............................................ $ (3,014)
Weighted average number of common shares ............ 3,619
Weighted average assumed number of shares upon
conversion of preferred stock and the net exercise
of all outstanding stock purchase warrants .......... 3,775
--------
Total weighted average number of shares used in
computing pro forma net loss per share ................ 7,394
Basic and diluted pro forma net loss per common share.. $ (.41)
</TABLE>
Options to purchase shares of RoweCom's common stock totaling 968,837 and
740,122 at March 31, 2000 and 1999, respectively, and warrants to purchase
common stock totaling 224,000 at March 31, 2000 were outstanding but were not
included in the computation of diluted earnings per share as the inclusion of
these shares would have been antidilutive.
4. COMPREHENSIVE LOSS
<TABLE>
<CAPTION>
THREE MONTHS ENDED
----------------------------
MARCH 31, MARCH 31,
2000 1999
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<S> <C> <C>
Net loss ........................................ $(15,001) $ (3,014)
Other comprehensive loss:
Foreign currency translation adjustment..... (368) (1)
-------- --------
Comprehensive loss .............................. $(15,369) $ (3,015)
======== ========
</TABLE>
5. TERMINATION OF NEWSEDGE CORPORATION ACQUISITION
On March 7, 2000 RoweCom and NewsEdge Corporation jointy announced that they
have agreed by mutual consent to terminate their acquisition agreement. Under
the terms of the merger agreement, which was announced on December 7, 1999,
RoweCom would have exchanged .26 shares of common stock for each share of
NewsEdge common stock. The companies have chosen instead to move forward with
a partnership that will enable the services of both companies to be
integrated in ways that benefit their customers.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
CAUTIONARY NOTE
This quarterly report on Form 10-Q forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995. This Act
provides a "safe harbor" for forward-looking statements to encourage
companies to provide prospective information about themselves so long as they
identify these statements as forward looking and provide meaningful
cautionary statements identifying important factors that could cause actual
results to differ from the projected results. All statements other than
statements of historical fact made in this Form 10-Q are forward looking. In
particular, the statements herein regarding industry prospects and future
results of operations or financial position
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are forward-looking statements. Forward-looking statements reflect
management's current expectations and are inherently uncertain. RoweCom's
actual results may differ significantly from management's expectations the
risks and uncertainties described or discussed in the section
"Business-Additional Factors that may Affect Future Results" in the Form 10-K
of RoweCom filed on March 16, 2000. These risks include, among others, the
following:
-Risks relating to RoweCom's limited operating history.
-Risks pertaining to RoweCom's reliance on a single service.
-Risks that uncertainty in RoweCom's ability to maintain existing strategic
alliances and enter into new alliances may negatively impact RoweCom's
operating results.
-Risks of increased competition in the knowledge resource sales market.
-Risks relating to reliance on a small number of clients and industries for
substantially all of our revenues.
-Risks that RoweCom will have trouble operating successfully
internationally as RoweCom integrates its foreign acquisitions.
OVERVIEW OF ROWECOM'S OPERATIONS AND FINANCIAL PERFORMANCE
RoweCom provides businesses and their employees with an e-commerce solution
for purchasing and managing the acquisition of magazines, newspapers,
journals, e-journals, books and other knowledge resources through a corporate
intranet or the Internet. We offer our clients access to the largest catalog
of magazines, newspapers, journals, e-journals, books and other knowledge
resources on the Internet. RoweCom allows employees to purchase knowledge
resources easily and conveniently from their desktop computers and provides
businesses with a highly effective means of managing and controlling
purchases of knowledge resources and reducing costs. Our target clients are
in knowledge-intense industries, such as business and financial services;
biomedical; academic and the federal government; and corporate and financial
services.
RoweCom's services initially focused on academic libraries and centralized
purchasing groups. Beginning in 1998, we have increasingly focused our sales
and marketing efforts on corporate clients and on desktop purchases by
individuals rather than centralized purchasing groups. We believe that an
increase in the number of desktop purchasers at a client would increase the
amount of revenue generated by such client.
To date, a substantial majority of our revenues have been generated in the
fourth quarter of each year, primarily because most subscriptions are
purchased or renewed in that quarter, with subscriptions generally beginning
on January 1st of each year. As purchases by individual employees increase as
a percentage of total revenues, the seasonality described above has begun to
decrease because desktop purchases are generally made as required, and thus
are more evenly distributed throughout the year. Dawson's Subscription
Business, which
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was acquired by RoweCom in October 1999 by the purchase of certain assets of
UK-based Dawson Information Services and all of the issued and outstanding
capital stock of Dawson, Inc., has experienced similar seasonality.
In June 1999, RoweCom acquired all of the issued and outstanding capital stock
of Corporate Subscription Services, Inc. for $5,726,000 in cash, subject to
certain post-closing adjustments, and 16,260 shares of RoweCom's common stock,
which were valued at approximately $250,000.
In August 1999, RoweCom acquired all of the issued and outstanding capital stock
of International Subscription Agencies Pty. Ltd. for $1,486,596 in cash.
ACQUISITION OF DAWSON
On October 4, 1999, pursuant to the terms of a purchase and sale agreement,
dated as of September 16, 1999, between RoweCom, Dawson Holdings PLC and certain
other Dawson-affiliated entities, RoweCom acquired:
- - all of the issued and outstanding capital stock of Dawson, Inc., a Delaware
corporation; and
- - certain assets of United Kingdom-based Dawson Information Services Group
relating to subscription services, a state-of-the-art, Web-based information
searching and retrieval tool, and library information management software and
services.
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The acquired Dawson group includes over 20,000 clients, 500 employees and
operations in nine locations: Folkestone, UK; Paris, France; Madrid, Spain;
London, Ontario; Montreal, Quebec; Westwood, Massachusetts; Oregon, Illinois;
Chantilly, Virginia; and Carlsbad, California.
RoweCom paid net consideration of $34.0 million in cash and issued approximately
94,000 shares of RoweCom's common stock, which were valued at $1.7 million, and
paid acquisition costs of $2.4 million, as part of an aggregate net
consideration of approximately $35.7 million. Under the terms of the purchase
agreement, RoweCom is obligated to issue an additional L4.0 million of RoweCom
common stock, at a price per share of approximately $17.62, as part of the
purchase price for the acquisition, after making an adjustment based upon profit
calculations for the period from the completion of the acquisition to December
31, 1999. RoweCom expects to issue these shares in the first half of 2000.
The acquisition of Dawson has impacted the seasonal nature of RoweCom's
business. Due to Dawson's established practice of paying publishers 30 to 60
days prior to receipt of customers funds, we had substantial additional
expenditures in the fourth quarter of 1999. We received the majority of our
cash receipts relating to such purchases in the first quarter of 2000. As a
result of the seasonal nature of our cash flows, we will have to rely to a
greater extent on bank financing and lines of credit and other sources of
liquidity to cover current operating expenses during such periods.
RESULTS OF OPERATIONS
COMPARISON OF THE THREE MONTHS ENDED MARCH 31, 2000 (THE "2000 THREE MONTH
PERIOD") WITH THE THREE MONTHS ENDED MARCH 31, 1999 (THE "1999 THREE MONTH
PERIOD")
REVENUES. Revenues for the 2000 Three Month Period were $51.8 million, as
compared to $1.7 million for the 1999 Three Month Period, an increase of
$50.1 million. This increase resulted primarily from increased sales per
client and growth in our client base, particularly related to the acquisition
of Dawson. Transaction volumes for the 2000 Three Month Period also increased
significantly from the 1999 Three Month Period from 8,000 to 334,000
transactions, primarily due to volume increases related to the Dawson
acquisition. The average selling price per transaction for the 2000 Three
Month Period was $155 as compared to $180 during the 1999 Three Month Period.
COST OF REVENUES. Cost of revenues in the 2000 Three Month Period was $47.3
million as compared to $1.5 million during the 1999 Three Month Period, an
increase of $45.8 million. Installation revenue was $18,000 during the 2000
Three Month Period and $114,000 during the 1999 Three Month Period.
SALES AND MARKETING. Sales and marketing expenses increased to $8.7 million
during the 2000 Three Month Period from $1.9 million in the 1999 Three Month
Period, an increase of $6.8 million or 358%. This growth is primarily due to
an increase of personnel associated with RoweCom's acquisitions and the
associated expenses of recruiting, hiring, and training the additional
personnel. Personnel expenses increased to approximately $5.3 million in the
2000 Three Month Period from $1.1 million in the 1999 Three Month Period.
RESEARCH AND DEVELOPMENT. Research and development expenses increased to $2.9
million in the 2000 Three Month Period from 818,000 in the 1999 Three Month
Period, an increase of $2.1 million or 262%, primarily as a result of increased
staffing and associated costs incurred in an effort to integrate new content
into our catalog, to enhance the user interface and functionality of the kStore,
and to develop the transaction
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processing systems.
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased to
$4.2 million in the 2000 Three Month Period compared to $723,000 in the 1999
Three Month Period, an increase of $3.4 million or 476%. This increase can be
primarily attributed to growth in average headcount in the administrative,
finance and human resources departments.
AMORTIZATION OF GOODWILL AND INTANGIBLES. Amortization of goodwill and
intangibles was $1.6 million in the 2000 Three Month Period. As a result of
the acquisitions of Corporate Subscription Services, Inc., International
Subscription Agencies Pty. Ltd. and Dawson's Subscription Business,
approximately $43.3 million in goodwill and intangibles were recorded and are
being amortized over a range of 3 to 11 years from the date of the
acquisitions.
INTEREST AND OTHER INCOME, NET. Interest expense was $1.8 million in the 2000
Three Month period, as compared to an interest income of $251,000 in the 1999
Three Month Period. This expense is a result of the interest paid on the
outstanding lines of credit.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities was $10.7 million for the 2000 Three
Month Period as compared to $1.9 million of cash used in for the 1999 Three
Month Period. Cash provided for the 2000 Three Month Period resulted primarily
from a decrease in accounts receivable of $53.5 million. This was partially
offset by a net loss of $15.0 million and a $27.2 decrease in accounts payable.
Cash used in operating activities for the 1999 Three Month Period was primarily
attributable to a net loss of $3.0 million, partially offset by a decrease of
$714,000 in accounts receivable.
Net cash used in investing activities for the 2000 Three Month Period was
$554,000, substantially all of which was used to purchase property and
equipment, as compared to $233,000 for the 1999 Three Month Period.
Net cash used in financing activities was $13.9 million for the 2000 Three
Month Period, as compared to cash provided by financing activities of $50.5
million for the 1999 Three Month Period. Repayments on loans were $64.5
million, offset by loan proceeds of $50.4. During the 1999 Three Month
Period, net proceeds from the IPO, net of underwriting discounts and offering
costs, were $51.9, of which $1.4 million was used to pay down existing credit
facilities. At March 31, 2000, RoweCom had cash and cash equivalents of $9.3
million, debt of $46.6 million and stockholders' equity of $44.8 million.
RoweCom has historically funded its operations through sales of its preferred
stock, our initial public offering and limited borrowings from third-party
financing sources. During 1999, RoweCom entered into additional financing
arrangements including the sale of convertible promissory notes and domestic and
foreign credit facilities, and expects to meet its short and medium-term
liquidity requirements through borrowings under these arrangements and use of
its existing cash balances. RoweCom currently believes that these sources of
liquidity will be sufficient to enable RoweCom to meet anticipated cash
requirements through at least 2001. RoweCom may also gain additional liquidity
through the use of cash balances of companies that it may acquire and, possibly,
additional debt or equity financings. However, RoweCom cannot assure you that
additional capital beyond the amounts currently forecasted by RoweCom will not
be required nor that any required additional capital will be available on
reasonable terms, if at all, at the time it may be required.
SALE OF CONVERTIBLE NOTES AND COMMON STOCK PURCHASE WARRANTS. On October 13,
1999, RoweCom entered into a Securities Purchase Agreement with two investors
pursuant to which RoweCom issued and sold notes convertible into RoweCom
common stock in the aggregate principal amount of $20.0 million and warrants
to purchase up to 224,000 shares of RoweCom's common stock at an exercise
price of approximately
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$27.50 per share. The sale of the convertible notes and the warrants
generated net proceeds of approximately $19.2 million for RoweCom. The notes
are convertible into shares of RoweCom's common stock on the terms and
conditions set forth in the Securities Purchase Agreement and the notes
pursuant to calculations based upon the outstanding principal amount plus
interest and the trading price of RoweCom common stock, provided that the
notes may not be converted into RoweCom common stock until January 11, 2001,
at the earliest, unless specified conditions occur causing an acceleration.
RoweCom also has an option, subject to certain conditions, to require the
investors to invest up to an additional $15.0 million in additional
convertible notes and warrants. This option is not presently exercisable and
may not become exercisable. RoweCom also granted the investors certain rights
to require the registration under applicable securities laws of the shares of
RoweCom common stock issuable upon conversion of the notes and exercise of
the warrants. RoweCom filed a short-form Registration Statement on From S-3
on March 16, 2000, which became effective on April 20, 2000.
REVOLVING LINES OF CREDIT. In October 1999, RoweCom (UK) Ltd., our wholly
owned United Kingdom subsidiary entered into a revolving line of credit for
up to L3.0 million with National Westminster Bank PLC. The line of credit is
secured by a grant of a security interest in RoweCom (UK) Ltd.'s accounts
receivable and other assets. In addition, we have guaranteed the loan, up to
an aggregate of approximately L5.4 million. The line of credit will be
available to the borrower until April 2, 2000 and bear interest at the rate
of the bank's base rate, plus 1%.
In October 1999, RoweCom France SARL entered into a credit agreement with Credit
du Nord for an initial 70.0 million French Franc line of credit that was reduced
on February 29, 2000 to a 30.0 million French Franc line of credit. The line of
credit will be available from December 1, 1999 to May 31, 2000 and bears
interest at the rate of EURIBOR plus 0.40%. The facility has been guaranteed by
RoweCom, and RoweCom has agreed to maintain 100% ownership of RoweCom France
SARL at all times while any amounts are outstanding under the facility, which
terminates December 31, 2000, unless renewed.
On November 3, 1999, RoweCom France SARL, a wholly owned subsidiary of RoweCom,
entered into a credit facility with Barclays Bank PLC that permits a maximum
borrowing of 100.0 million French Francs, limited to 100.0 million francs per
transaction. The line of credit is for unlimited duration and bears interest at
the rate of the average monthly financial market rate plus 1%. The line of
credit also provides for a 100.0 million French Franc daily overdraft that is
available from November 1 to May 31 each year, and bears interest at the rate of
EURIBOR plus 0.50%.
In December 1999, RoweCom France SARL established a line of credit with Banque
Nationale de Paris for 80.0 million French Francs. Borrowing under the facility
is limited to 110% of RoweCom France's accounts receivable, and accrues interest
at the rate of EURIBOR plus 0.55%. The line of credit will be reduced to 35.0
million French Francs after April 1, 2000 and will expire on June 16, 2000.
On December 14, 1999, three wholly owned subsidiaries of RoweCom's wholly owned
subsidiary Dawson, Inc., entered into a revolving line of credit with a
financial institution in the aggregate amount of $35.0 million. The line of
credit is secured by a lien on all of the assets, accounts receivable and after
acquired property of the three subsidiaries of Dawson. In addition, RoweCom and
Dawson have signed unconditional guaranties of full payment of the loan made to
the three subsidiaries. The entire unpaid principal balance of the loan becomes
due May 31, 2000, with interest payments due on the last business day of each
month. The revolving line of credit is scheduled to terminate on November 28,
2000, but under some conditions may be extended for an additional 364-day
period. The borrowings of the subsidiaries under the revolving credit loans bear
interest at the lender's prime rate plus a stated percentage. If its
subsidiaries default on these loans, RoweCom may ultimately have to pay any
unpaid balances on the line of credit. As of March 31, 2000, the aggregate
amount borrowed under the line of credit was $3.0 million.
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EURO CURRENCY ISSUES
Effective January 1, 1999, eleven of the fifteen member countries of the
European Union established fixed conversion rates between their existing
currencies and one common currency (the "euro"). The euro trades on currency
exchanges and is used in business transactions. Beginning in January 2002, bills
and coins denominated in the euro will be issued and existing currencies will be
withdrawn from circulation. RoweCom foreign subsidiaries do not expect to
transact a material portion of their business in the euro until fiscal 2001.
Also, RoweCom's foreign subsidiaries are not yet required to prepare reports to
local regulatory agencies using the euro. Management expects that IT systems
used by RoweCom's foreign subsidiaries will be repaired or replaced in a timely
manner to facilitate business transactions and reporting to local government
agencies. Cost to repair and/or replace IT systems are not expected to be
material.
QUANTITATIVE AND QUALITATIVE INFORMATION ABOUT MARKET RISK
EXCHANGE RATE RISK MANAGEMENT
RoweCom enters into forward currency contracts primarily in European and
Canadian currencies to hedge its foreign currency exposures. Forward currency
contracts have maturities of less than one year. These contracts are used to
reduce RoweCom's risk associated with exchange rate movements, as gains and
losses on these contracts are intended to offset exchange losses and gains on
underlying exposures. RoweCom does not engage in currency speculation. At March
31, 2000 the face amount of outstanding forward currency contracts to buy and
sell U.S. dollars for non-U.S. currencies was not material.
INTEREST RATE RISK MANAGEMENT
Due to its short-term duration, the fair value of RoweCom's borrowings at March
31, 2000 approximated carrying value. Interest rate risk was estimated as the
potential increase in fair value resulting from a hypothetical 10% increase in
interest rates. The resulting hypothetical fair value was not materially
different from the quarter-end carrying value.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivatives and Hedging Activities," which establishes
accounting and reporting standards for derivative instruments, including
derivative instruments embedded in other contracts, collectively referred to
as derivatives, and for hedging activities. We will adopt SFAS No. 133 as
required by SFAS No. 137, "Deferral of the effective date of the FASB
Statement No. 133", in fiscal year 2001. To date we have not utilized
derivative instruments or hedging activities and, therefore, the adoption of
SFAS 133 is not expected to have a material impact on our financial position
or results of operations.
In December 1999, the Securities and Exchange Commission ("SEC") issued Staff
Accounting Bulletin No. 101 ("SAB 101"), "Revenue Recognition in Financial
Statements." SAB 101 summarizes the SEC's view in applying genreally accepted
accounting principles to selected revenue recognition issues. The application
of the guidnace in SAB 101 will be required in RoweCom's second quarter of
the fiscal year 2000. The effects of applying this guidance, if any, will be
reported as a cumulative effect adjustment resulting from a change in
accounting principle. RoweCom does not expect the adoption of SAB 101 to have
a material effect on their financial statements, however the final evaluation
of SAB 101 is not yet complete.
In March 2000, the Financial Accounting Standard Board issued FASB
Interpretation No. 44, "Accounting for Certain Transactions Involving Stock
Compensation - an interpretation of APB Opinion No. 25" ("FIN 44"). FIN 44
clarifies the application of APB Opinion No. 25 and is effective July 1,
2000, but certain conclusions in FIN 44 cover specific events that occurred
after either December 15, 1998 or January 12, 2000. RoweCom does not exect
the application of FIN 44 to have a material impact on the RoweCom's
financial position or results of operations.
PART II -- OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On April 20, 2000 in connection with RoweCom's issuance of convertible notes and
warrants, a Registration Statement on Form S-3 was filed with the SEC. See "SALE
OF CONVERTIBLE NOTES AND COMMON STOCK PURCHASE WARRANTS" on page 11.
100,000 options were granted to purchase common stock under the Company's,
Amended and Restated 1998 Stock Incentive Plan during the 2000 Three Month
Period. The grants of options were made in reliance on the exemptions from
registration under the Securities Act of 1933, as amended (the "Securities Act")
provided by Rule 701 there under. 31,224 stock options were exercised during the
2000 Three Month Period.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 - Partnership Agreement between RoweCom and Absolute
Backorder Service, Inc. dated January 13, 2000.
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(b) Reports on Form 8-K
On January 5, 2000 RoweCom filed a report on Form 8-K/A in
connection with the audited financial statements of Dawson
Information Service Group, a business that RoweCom acquired in
October 1999.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ROWECOM INC.
May 15, 2000 By: /s/ Paul Burmeister
---------------------------------------------
Paul Burmeister
Senior Vice President and Chief Financial Officer
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STRATEGIC ALLIANCE AND MARKETING AGREEMENT
This Strategic Alliance and Marketing Agreement (the "Agreement") is
made as of this 13 day of January, 2000 (the "Effective Date") by and between
ABSOLUTE BACKORDER SERVICE INC., a Delaware corporation ("Absolute") and ROWECOM
INC., a Delaware corporation ("RoweCom").
WHEREAS, Absolute assists its customers in filling the gaps of library
serials collections by utilizing an extensive inventory, worldwide vendor
network and publishers' back stock and offering a complete start-to-finish
service, locating, ordering, receiving, inspecting, collating and shipping
backorder issues and collections;
WHEREAS, RoweCom provides business-to-business electronic commerce
services to businesses and not-for-profit institutions interested in purchasing
subscriptions, books and other knowledge products and services of a professional
nature and, in connection therewith, RoweCom collaborates with such entities to
enhance existing intranet networks to enable such entities to purchase
subscriptions, books and other knowledge products and services via their
intranets;
WHEREAS, RoweCom and Absolute agree to enter into Strategic Alliance
(as defined herein) with the goal of potentially integrating Absolute's services
and RoweCom's electronic commerce site(s), to enable business clients to make
purchases directly from RoweCom's site(s) using Absolutes services in an
integrated manner;
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
the parties hereby acknowledge, Absolute and RoweCom agree as follows:
1. DEFINITIONS
1.1. DEFINED TERMS. For purposes of this Agreement, the following terms
have the respective meanings set forth below:
ABSOLUTE SERVICES means services offered by Absolute including filling
the gaps of library serials collections, locating, ordering, receiving,
inspecting, collating and shipping backorder issues.
ABSOLUTE SITE means (1) the web site and pages that a user's web
browser will generate as a result of requesting URLs in the "Absolute" Internet
domain, other than such pages intended for testing, development, or other
internal purposes; and (2) any web pages or sites that are replacements for such
web pages or site.
CUSTOMER means any person or entity purchasing Knowledge Products or
Absolute Services as defined herein.
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GROSS MARGIN means the aggregate amount received by any party to this
Agreement , LESS: (i) payments to any third-party, (ii) credits, refunds and
allowances separately and actually credited to customers; (iii) offered and
taken trade and cash discounts, rebates, trade commissions and distribution fees
in amounts customary to the trade and as required to do business in the country
in which they are made; and (iv) sales, excise, use, turnover, inventory,
value-added and similar taxes and duties, not including net income tax. Gross
Margin shall also not include special outbound packing, transportation,
insurance, and handling charges, separately billed to the customer or prepaid.
HTML means hypertext mark-up language.
INITIAL ORDER means any new order for a Knowledge Product placed by
Customer.
INTELLECTUAL PROPERTY means the respective patents, trade secrets,
copyrights, trademarks, industrial designs and other intellectual property of
the parties, including without limitation the RoweCom Trademarks, the Absolute
Trademarks, related sales material, RoweCom Content, and any such Intellectual
Property contained in the RoweCom Absolute kStore, RoweCom Site and/or the
Absolute Site.
INTRANET means an internal local area network which enables a company
to share its resources with its employees in a manner similar to the Internet
with the restricted Internet access.
KNOWLEDGE PRODUCTS means any magazines, books, journals, subscriptions,
serials, market research reports, or other publications, embodied in paper or
electronic media.
LAUNCH DATE means the date on which the RoweCom Absolute kStoreis
substantially complete and functional in all material respects enabling the
purchase of Knowledge Products and Absolute Services by Customers.
RENEWAL ORDER means the renewal of an Initial Order.
ROWECOM ABSOLUTE KSTORE means a customized, co-branded Absolute/RoweCom
web site prepared by RoweCom. The RoweCom Absolute kStore will contain a catalog
of Knowledge Products order processing, and other features, and will have a URL
address determined by RoweCom.
ROWECOM SITE means (1) the web site and pages that a user's web browser
will generate as a result of requesting URLs in the "RoweCom" Internet domain,
other than such pages intended for testing, development, or other internal
purposes; and (2) any web pages or sites that are replacements for such web
pages or site.
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STRATEGIC ALLIANCE means cooperation between the parties to this
Agreement by means of combining their respective resources, joint marketing and
sharing revenues as well as conducting other mutually beneficial business
activities.
TERM means the period beginning on the Effective Date and ending upon
expiration or termination of this Agreement, as set forth in Section 7 hereto.
TRADEMARK means names, trademarks, services marks, trade names, labels,
logos, designs or other designations and all goodwill associated therewith. The
RoweCom Trademarks are set forth in EXHIBIT A (hereby incorporated by
reference), as may be updated by RoweCom from time to time. The Absolute
Trademarks are set forth in EXHIBIT B (hereby incorporated by reference), as may
be updated by Absolute from time to time.
URL means uniform resource locator.
1.2. OTHER DEFINED TERMS. Each of the following terms have the meanings
ascribed to it in the section set forth opposite such term:
AGREEMENT Preamble
AUDITED PART Section 4.3
AUDITING PARTY Section 4.3
CONFIDENTIAL INFORMATION Section 6.1
DISCLOSING PARTY Section 6.1
EFFECTIVE DATE Preamble
INDEMNITOR Section 8.3(a)
INDEMNITEES Section 8.3(a)
INITIAL TERM Section 7.1
LOSSES Section 8.3(a)
QUARTERLY STATEMENT Section 4.2
2. LINKAGE
2.1. SITE LINKS TO THE ROWECOM ABSOLUTE KSTORE. Subject to the terms of this
Agreement but in no event later than within sixty days from the Effective Date,
Absolute will place a hypertext link to the RoweCom Absolute kStore. RoweCom
shall provide the textual and/or graphic content, when applicable, of such link
to Absolute as one or more computer-readable files in an Internet standard file
format (such files being, collectively, the "RoweCom Link File").
2.2. SITE LINKS TO THE ABSOLUTE SITE. Subject to the terms of this Agreement but
in no event later than within sixty days from the Effective Date, RoweCom will
place a hypertext link to the Absolute Site, with a URL address determined by
Absolute, from the RoweCom Site and from other kStore specialized web pages
designed by RoweCom for its Customers. The location, size and placement of each
link shall as determined by RoweCom in its sole discretion. Absolute will
provide the textual and/or graphic content,
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when applicable, of these links to RoweCom as one or more computer-readable
files in an Internet standard file format (such files being, collectively, the
"Absolute Link File").
2.3. EXPENSES. Each party shall be responsible for its own expenses in
performing its obligations under this Agreement.
3. OBLIGATIONS OF THE PARTIES.
3.1. ABSOLUTE OBLIGATIONS. Subject to the terms of this Agreement, Absolute
shall:
A. Assign a designated person to prepare the Absolute Site to
process orders by Customers referred to by RoweCom, and to act
as a contact person for the daily operations of the RoweCom
Absolute kStore;
B. Provide one or more hypertext links from the Absolute Site to
the RoweCom Absolute kStore as set forth in Section 2.1 of
this Agreement;
C. List RoweCom as a preferred provider (as specified herein) of
Knowledge Products on the Absolute Site
D. Collect amounts from Customers, comply with all applicable
laws and regulations, fulfill orders placed by Customers,
process address changes and provide customer service including
but not limited to assigning a customer service representative
to provide customer support and respond to claims from
Customers.
E. Make payments to RoweCom, and provide Quarterly Statements, in
accordance with Section 4 hereof.
The parties understand that under the current Absolute refunds and
cancellation policy all sales are considered as final. Notwithstanding anything
to the contrary, Absolute undertakes to review in good faith each refund or
cancellation request furnished by or on behalf of RoweCom.
3.2. ROWECOM OBLIGATIONS. Subject to the terms of this Agreement, RoweCom shall:
a. Assign an account executive for RoweCom Absolute kStore
implementation, and to act as a contact person for the
daily operations of the RoweCom Absolute kStore;
b. Provide hypertext links from the RoweCom Site and from other
specialized kStore web pages designed by RoweCom for its
Customers to the Absolute Site as set forth in Section 2.2 of
this Agreement;
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c. List Absolute as a preferred provider (as specified herein) of
backorder services on the RoweCom Site;
d. Process Initial Orders and Renewal Orders received from
Customers, collect amounts from Customers, comply with all
applicable laws and regulations, fulfill Initial Orders and
Renewal Orders, process address changes for Customers, and
provide customer service on Initial Orders and Renewal Orders,
including but not limited to assigning a customer service
representative to provide customer support and respond to
claims from Customers;
e. Honor the policy regarding cancellations and refunds provided
by the publisher of the applicable Knowledge Product, provided
that RoweCom reserves its right to change its policy regarding
refunds and cancellations;
f. Perform title searches for additions to RoweCom Content and
use its best efforts to add to RoweCom Content a particular
Knowledge Product requested by Absolute or Customer or
potential Customer within seventy-two (72) hours of such
request. From time to time during the Term, RoweCom may, at
its sole discretion, make corrections, enhancements,
revisions, updates, upgrades and other changes to RoweCom
Content unrelated to any requests by Absolute or Customers.
In the event that (1) RoweCom cannot or will not add
requested materials to the RoweCom Content within the time
specified above, or (2) RoweCom ceases to offer a particular
Knowledge Product, Absolute shall be entitled to contract
directly with the publisher or any other provider of such
Knowledge Product for the right to offer such titles on or
through the Absolute Site, provided that, Absolute shall
provide at least seven (7) days advance written notice of
such intent to seek such Knowledge Product from a publisher
or other third party provider;
g. Provide technical support to Absolute in connection with the
installation, operation, and maintenance of the RoweCom
Absolute kStore; and
h. Make payments, and provide Quarterly Statements, to Absolute
in accordance with Section 4 hereof for all Initial Orders
and Renewal Orders.
3.3. PREFERRED PROVIDER STATUS. During the Term, either party undertakes at all
times to refer to or provide a hypertext link to the other party's Internet site
and to ensure that the name, URL and any other pertinent information of such
other party are displayed with equivalent prominence to a name, URL and any
other pertinent information of any third party.
Nothing herein is deemed to limit either party's ability to utilize other
vendors.
<PAGE>
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3.4. SERVICE INTEGRATION. Within six months from the Effective Date the parties
agree to cooperate in order to determine whether integration of Absolute's
backorder services with RoweCom's kStore is commercially and technically
feasible.
3.5. LICENSES.
A. LICENSES TO ABSOLUTE. Subject to the terms set forth herein,
RoweCom hereby grants to Absolute:
(1) a limited, world-wide, non-exclusive,
non-transferable, non-assignable (except as set forth
in Section 9.3), royalty-free right and license
(excluding the right to sublicense) to store, copy,
distribute, transmit, adapt, and display the RoweCom
Absolute kStore, RoweCom Content, and the RoweCom
Link File as delivered under Section 2.1.
(2) a limited, world-wide, non-exclusive, non-assignable
(except as set forth in Section 9.3), royalty-free
right and license (excluding the right to sublicense)
to use the RoweCom Trademarks solely to promote and
market the RoweCom Absolute kStore and RoweCom
Content in accordance with the terms of this
Agreement. Upon reasonable notice from RoweCom,
Absolute shall permit RoweCom to visit all locations
on the Internet including Intranet and other internal
networks where Absolute delivers services using the
RoweCom Trademarks to ensure that (a) such services
are delivered in a manner consistent with the service
standards employed by RoweCom and (b) the RoweCom
Trademarks used in connection with such services are
in compliance with the specifications provided to
Absolute from time to time. It is understood that,
under certain circumstances, Absolute may need third
party consents to effectuate the visitation by
RoweCom. In such circumstances, Absolute will work
with RoweCom to facilitate the review of the usage of
the RoweCom Trademarks.
b. LICENSE TO ROWECOM. Subject to the terms set forth herein,
Absolute hereby grants to RoweCom a limited, world-wide,
non-exclusive, non-assignable (except as set forth in Section
9.3), royalty-free right and license (excluding the right to
sublicense) to use the Absolute Trademarks, and Absolute
Services solely in connection with RoweCom Absolute kStore
and in accordance with the terms of this Agreement. RoweCom
agrees that, upon reasonable notice from Absolute, RoweCom
shall permit Absolute to visit all locations on the Internet
including corporate intranets and other internal networks
where RoweCom delivers services using the Absolute Trademarks
to ensure that (1) such services are delivered in a manner
consistent with the service standards employed by Absolute
and (2) the Absolute Trademarks used in connection with such
services are in
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compliance with the specifications provided to RoweCom from
time to time. It is understood that, under certain
circumstances, RoweCom may need third party consents to
effectuate the visitation by Absolute. In such circumstances,
RoweCom will work with Absolute to facilitate the review of
the usage of the Absolute Trademarks.
c. RESTRICTION ON USE OF CONFIDENTIAL INFORMATION. Nothing in
this Section 3.4 shall allow either party to use the other
party's Confidential Information beyond the limitations on
such use set forth in Section 6 below.
3.6. PUBLICITY. Neither party shall originate or cause to be issued any
publicity or news release or otherwise make any public announcement or
statements, written or oral, with respect to this Agreement or the terms hereof
or the transactions contemplated hereby unless mutually agreed by the parties in
writing (not be unreasonably withheld or delayed), PROVIDED THAT, each party may
provide information to the extent required under securities laws or other
applicable laws or regulations, or governmental or court order. Neither party
shall use the name of the other party or any adaptation thereof or any of such
other party's Trademarks in any advertising, promotional or sales literature, or
in any other form of publicity without prior written consent (which consent will
not be unreasonably withheld or delayed) obtained from the other party in each
case. Notwithstanding the foregoing, a party shall not be in breach of this
Section 3.6 as a result of the incidental appearance of the other party's web
site, Content, Link File, or Trademarks in any public demonstration of such
party's web site or services generally.
3.7. INTELLECTUAL PROPERTY. Subject to the terms hereof, each party shall inform
the other party of any changes in or additions to the informing party's
Trademarks, and shall amend either EXHIBIT A or EXHIBIT B accordingly. Each
party shall use commercially reasonable efforts to correctly reference the other
party's Trademarks and other proprietary rights in any marketing, advertising,
promotional materials, sales literature or publicity permitted hereunder, as
required by law or as reasonably requested by the other party. Each party's
Trademarks and Confidential Information (as defined below) shall remain the sole
and exclusive property of such party and the other party shall have no rights
thereto, except as otherwise expressly provided herein, and the goodwill
associated therewith shall inure to the benefit of the owner of such Trademark.
Upon any expiration or termination of this Agreement, the license to use the
Trademarks shall terminate. Except as otherwise expressly provided herein,
nothing contained in this Agreement shall be deemed to transfer ownership of
copyrightable material from one party to the other.
3.9. CONTACT PERSONS. Each party shall designate a Partner Relations Manager to
implement the obligations of each such party hereunder and to be available to
respond to inquiries during the normal business hours of such party.
3.10. SALES MATERIALS. Each party shall furnish at no cost to the other party
reasonable quantities of promotional materials, such as sales literature and
similar promotional material, relating to RoweCom Content, RoweCom Trademarks,
and the Absolute Site,
<PAGE>
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including such information as is necessary or appropriate for each party to
formulate any marketing materials used in connection with marketing activities
under this Agreement. Each party hereby grants to the other party a license
during the Term to use such promotional materials solely for purposes of
promoting the granting party, provided that, neither party shall edit, modify or
otherwise alter the form or content of such promotional materials.
4. PAYMENTS AND AUDITS
4.1. PAYMENTS.
a. PAYMENTS BY ROWECOM. Subject to the terms of this Agreement,
RoweCom shall pay to Absolute, no later than thirty (30)
business days after the end of every calendar quarter, an
amount equal to five (5%) of the Gross Margin on all Initial
Orders of Knowledge Products placed by Absolute through
Absolute RoweCom kStrore during that quarter.
b. PAYMENTS BY ABSOLUTE. Subject to the terms of this Agreement,
Absolute shall pay to RoweCom, no later than thirty (30) days
after the end of each calendar quarter, an amount equal to
forty percent (40%) of the Gross Margin received by Absolute
during that quarter on all orders for Absolute Services on
which RoweCom provided direct assistance including but not
limited to by means of linking and referring to Absolute Site,
by phone and by e-mail. For orders of a single back issue
RoweCom will receive a commission equal to 5% of the Gross
Margin.
4.2. QUARTERLY STATEMENTS. Within fifteen (15) days after the end of each
calendar quarter after the Effective Date and for as long as any amounts are due
in accordance with this Section 4, each party shall submit to the other party a
detailed statement ("QUARTERLY STATEMENT") that sets forth, the Gross Margin
received by such party during the relevant quarter , and the calculation of the
amounts payable to such party pursuant to Section 4.1.
4.3. AUDITS. During the Term of this Agreement and for ninety (90) days
thereafter, each party (for purposes of this Section 4.3 only, the "AUDITING
PARTY") shall have the right, not more than once in any twelve (12)-month
period, to have the relevant books and records of the other party (the "AUDITED
PARTY") for the other party's immediately preceding financial year audited by an
independent certified public accountant chosen by the Auditing Party, for the
sole purpose of ascertaining the accuracy of the Audited Party's reports under
this Agreement. Each party shall maintain accurate books and records relating
to such matters. Such audits shall be scheduled within thirty (30) days
following delivery of a notice by the Auditing Party to the Audited Party, and
conducted during normal business hours, in a manner that does not unreasonably
interfere with the Audited Party's normal business activities. The Auditing
Party shall require the auditor to execute a confidentiality agreement,
acceptable to the Audited Party, which shall prohibit the auditor from
disclosing any information ascertained from the audit to any
<PAGE>
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party, including the Auditing Party, for any purpose other than to confirm the
accuracy of the Audited Party's reports or to advise the Auditing Party of any
discrepancies discovered through the audit. In the event that any audit
determines that the reported payments paid to the Auditing Party under this
Agreement was less than the amount due to the Auditing Party, the Audited Party
shall promptly pay the Auditing Party the amount of such underpayment and all
accrued interest thereon from the date that such payment was due. In addition,
if any audit determines that the reported payments paid to the Auditing Party
under this Agreement was less than ninety percent (90%) of the actual amount due
to the Auditing Party for the period in question, the actual out-of-pocket cost
of such audit shall be borne by the Audited Party; otherwise, the cost of the
audit shall be borne by the Auditing Party.
4.4. TAXES. All taxes and charges, other than income taxes, that may be imposed
by any governmental taxing authority on any sales pursuant to this Agreement
shall be paid by the party assessed such taxes or charges.
5. REPRESENTATIONS AND WARRANTIES
5.1. AUTHORIZATION, ETC. Each party hereby represents and warrants to the other
that: (a) it has the requisite power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby;
(b) this Agreement has been duly authorized, executed and delivered by such
party, constitutes the legal, valid and binding obligation of such party and is
enforceable against such party in accordance with its terms, except to the
extent such enforceability may be limited by bankruptcy, reorganization,
insolvency or similar laws of general applicability governing the enforcement of
the rights of creditors or by the general principles of equity (regardless of
whether considered in a proceeding at law or in equity); and (c) to the best of
its knowledge, it has provided the other party with the information known to it
that materially affects the other party's ability to perform the other party's
obligations under this Agreement.
5.2. NON-INFRINGEMENT. Each party hereby represents and warrants that (i) the
provision by such party of Intellectual Property to the other party hereunder
does not infringe upon or violate the intellectual property rights or any other
rights of any third party or violate any applicable law or regulation; (ii)
neither party has been charged or threatened with infringement or violation of
any intellectual property right or any other rights of any person or entity in
connection with the Intellectual Property provided by such party to the other
party hereunder; (iii) the Intellectual Property and other information provided
by each party (including without limitation, the RoweCom Content, the RoweCom
Absolute kStore, the RoweCom Link File, the Absolute Link File, and the RoweCom
Trademarks) to the other party hereunder will not contain any defects, viruses,
worms, date bombs, time bombs, or other code that is designed to damage,
interrupt, or interfere with any software or data of the other party; and (iv)
the RoweCom Absolute kStore and services provided to Customers therewith shall
be conducted in a professional, timely and diligent manner, and shall comply
with all applicable laws and regulations of RoweCom Absolute kStore.
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5.3. THIRD PARTY RIGHTS. Each party represents and warrants to the other party
that: (a) it is not bound by any agreement or obligation (and will not enter
into any agreement or obligation) that could materially interfere with the
performance of its obligations under this Agreement; and (b) no approval,
authorization or consent of any governmental or regulatory authority is required
to be obtained or made by it in order for it to enter into and perform its
obligations under this Agreement.
5.4. DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 5, EACH
PARTY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES
CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
6. CONFIDENTIALITY
6.1. CONFIDENTIAL INFORMATION. "Confidential Information" means all financial,
business, marketing, operations, technical, and economic information, whether
tangible or intangible, that is disclosed by either party (the "Disclosing
Party") or any of Disclosing Party's suppliers, employees, contractors or
customers to the other party (the "Recipient"), if such information is disclosed
(i) in writing or by way of any other media that is marked as "confidential" or
"proprietary" information; (ii) orally or visually, provided that, such oral or
visual disclosure is followed by written confirmation by the Disclosing Party
within three (3) business days of such disclosure; provided that (A)
Confidential Information excludes any information or portion thereof that (1)
was known to the Recipient before receipt thereof under this Agreement; (2) is
disclosed to the Recipient by a third person who has a right to make such
disclosure without any obligation of confidentiality to the Disclosing Party;
(3) is or becomes generally known in the trade or to the public without
violation of this Agreement by the Recipient; (4) is independently developed by
the Recipient or Recipient's employees, agents, or contractors to whom the
Disclosing Party's information was not disclosed; or (5) is approved in writing
by the Disclosing Party for release; and (B) only the specific information that
meets the exclusions shall be excluded, and not any other information that
happens to appear in proximity to such excluded portions (for example, a portion
of a document may be excluded without affecting the confidential nature of those
portions that do not themselves qualify for exclusion); and (C) Confidential
Information includes summaries and other materials prepared by or on behalf of a
Recipient that restate, summarize or otherwise use any Confidential Information
of a Disclosing Party except to the extent that such summaries and other
materials qualify for exclusion under this Section.
6.2. NONDISCLOSURE AND LIMITATIONS ON USE. Each Recipient agrees (a) to keep
secret and maintain the Confidential Information as confidential and to hold the
Confidential Information in trust for the exclusive benefit of the Disclosing
Party; (b) to use or copy the Confidential Information solely to perform its
obligations under this Agreement; (c) to segregate the Confidential Information
from the Recipient's other information and
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from that of third parties; (d) not to copy the Confidential Information unless
necessary to perform services under this Agreement; (e) to notify promptly the
Disclosing Party upon learning about any court order or other legal requirement
that purports to compel disclosure of any Confidential Information and to
cooperate with the Disclosing Party in the exercise of the Disclosing Party's
right to protect the confidentiality of the Confidential Information before any
tribunal or governmental agency; (f) not to disclose the Confidential
Information to any person or entity not a party to this Agreement other than
such of Recipient's contractors, agents or employees who (i) have a need to know
the Confidential Information for a purpose permitted hereunder; and (ii) are
apprised of the confidential nature of the Confidential Information; and (g)
subject to Section 7.3b, to return promptly to the Disclosing Party or to
destroy, at the option of the Disclosing Party and at any time upon the
Disclosing Party's request, any and all materials containing Confidential
Information. Each party shall (1) promptly notify the other party of any actual
or suspected unauthorized use or disclosure of the other party's Confidential
Information for a period of two years from the date of termination of this
Agreement of which it has knowledge and will cooperate in the investigation of
such unauthorized use or disclosure; (2) be liable for breaches of
confidentiality by its employees, contractors or agents; and (3) include the
other party's reasonable proprietary rights notices on any media or products
embodying the other party's Confidential Information, including partial copies
thereof. Nothing contained herein shall prevent a Recipient from disclosing the
Disclosing Party's Confidential Information to any tribunal or governmental
agency, so long as the notice in this Section 6.2 is promptly given; PROVIDED
THAT, such disclosure shall not alter the status of such information hereunder
for all other purposes as Confidential Information unless and until such
information is actually made public by the tribunal or agency.
7. TERM AND TERMINATION
7.1. TERM. This Agreement shall commence upon the Effective Date and, subject to
early termination pursuant to Section 7.2, shall continue in effect until the
thirdanniversary of the Launch Date (the "Initial Term") and shall be
automatically renewed for successive one (1) year periods after the expiration
of the Initial Term unless either party provides the other party with written
notice of its intent not to renew this Agreement at least ninety (90) days prior
to the expiration of the then current term.
7.2. TERMINATION.
a. Either party may terminate this Agreement upon thirty (30)
days' written notice to the other party if the other party
breaches any of its material obligations under this Agreement
and such breach remains uncured for a period of 30 days after
receipt of such notice. Any notice given pursuant to this
Section 7.2 must set forth with specificity the alleged
material obligations breached by the other party.
b. Either party may terminate this Agreement pursuant to
Section 9.2.
<PAGE>
-12-
c. This Agreement shall terminate automatically, with no further
action by either party, if (i) a receiver is appointed for
either party or its property, (ii) either party makes an
assignment for the benefit of its creditors, (iii) any
proceedings are commenced by, for or against either party
under any bankruptcy, insolvency or debtor's relief law for
the purpose of seeking a reorganization of such party's debts,
and such proceeding is not dismissed within ninety (90)
calendar days of its commencement, or (iv) either party is
liquidated or dissolved.
7.3. EFFECT OF TERMINATION.
a. THEN-CURRENT ORDERS. Upon termination of this Agreement, the
provisions of Section 2, 3.1, and 3.2 regarding the
obligations of each party shall terminate, PROVIDED, HOWEVER,
that (a) the parties will continue to perform all obligations
relating to pending Initial Orders or Renewal Orders in
accordance with a schedule to be mutually agreed upon by the
parties no later than thirty (30) days after the date of
termination, and (b) RoweCom shall provide ongoing customer
service to Customers at no less a level of service than it
provides to other customers.
b. CONFIDENTIAL INFORMATION. Promptly after all obligations to
existing customers are performed pursuant to clause (a)
hereof, each party shall return to the other party or certify
in writing to the other party that it has destroyed all
documents and other tangible items it or its employees or
agents have received from the Disclosing Party which
constitute Confidential Information of the other party;
provided, however, that for twelve (12) months following
termination of this Agreement RoweCom may retain information
regarding Customers, solely for the purposes of fulfilling
RoweCom's customer support obligations set forth herein.
c. OTHER OBLIGATIONS. The provisions of Sections 4.1 (Payments)
and 4.2 (Quarterly Statements) (solely with respect to payment
obligations accrued prior to termination); Section 4.3 (Audit
Rights), Section 5 (Representations and Warranties), Section 6
(Confidentiality), Section 7 (Termination), Section 8 (Risk
Allocation) and Section 9 (Miscellaneous) shall survive any
expiration or termination of this Agreement.
7.4. TERMINATION/NONRENEWAL RIGHTS. It is expressly understood and agreed that
the rights of termination and nonrenewal set forth in this Section 7 are final,
and that the parties have considered the possibility of such termination or
nonrenewal and the possibility of loss and damage resulting therefrom, in making
expenditures pursuant to the performance of this Agreement. It is the express
intent and agreement of the parties that neither shall be liable to the other
for damages or otherwise solely by reason of the termination of this Agreement
in accordance with Section 7.1 or 7.2 above. The parties expressly agree that
the notice periods in this Agreement are reasonable under the contemplated
circumstances.
<PAGE>
-13-
8. RISK ALLOCATION
8.1. LIMITATION OF LIABILITY. EXCEPT IN RESPECT OF THE PARTIES' RESPECTIVE
OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) AND CLAIMS ARISING UNDER SECTION
8.3 OF THIS AGREEMENT (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR
DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST
REVENUES), WHETHER SUCH LIABILITY IS PREDICATED ON CONTRACT, STRICT LIABILITY,
STATUTE, REGULATION, OR ANY OTHER THEORY. EACH PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE
OR FAILURE TO PERFORM UNDER THIS AGREEMENT, PROVIDED THAT THE TOTAL LIABILITY OF
EITHER PARTY TO THE OTHER PARTY FOR DIRECT DAMAGES SHALL, EXCEPT IN RESPECT OF
THE PARTIES' RESPECTIVE OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) AND CLAIMS
ARISING UNDER SECTION 8.3 OF THIS AGREEMENT (INDEMNIFICATION), BE LIMITED IN THE
AGGREGATE TO THE AMOUNT PAID AND/OR PAYABLE BY ROWECOM TO ABSOLUTE UNDER THIS
AGREEMENT AT THE TIME SUCH LIABILITY IS FINALLY DETERMINED, WHICHEVER IS
GREATER.
8.2. INJUNCTIVE RELIEF. The parties agree that the remedy at law for any breach
of the provisions of Sections 3.4, 5, and/or 6 of this Agreement shall be
inadequate and the non-breaching party shall be entitled to injunctive relief in
addition to any other remedies that may be available to the non-breaching party.
8.3. INDEMNIFICATION.
a. OBLIGATION. Subject to the provisions of Section 8.3(b), each
party (each an "Indemnitor") hereby agrees to indemnify,
defend and hold the other party and its affiliates, directors,
officers, employees, contractors and agents (each an
"Indemnitee") harmless from and against any third party claim,
suit, demand, liability, loss or expense (including reasonable
attorney fees) (collectively, "Losses") arising out of or
relating to the Indemnitor's breach of its obligations,
representations and warranties under this Agreement.
b. PROCEDURE. To receive the benefit of the foregoing
indemnities, the Indemnitee must promptly notify the
Indemnitor in writing of a claim or suit and provide
reasonable cooperation (at the Indemnitor's expense) and
tender to the Indemnitor full authority to defend or settle
the claim or suit, PROVIDED, that the Indemnitor may not
settle such claim or suit without the consent of the
Indemnitee, which consent shall not be unreasonably withheld.
Neither party has any obligation to indemnify the other party
in connection with any settlement made without the
Indemnitor's written consent.
<PAGE>
-14-
9. MISCELLANEOUS
9.1. INDEPENDENT CONTRACTORS. For all purposes of this Agreement, each party
shall be and act as an independent contractor or and not as a partner, joint
venturer, employee or agent of the other. No franchise is created hereby.
Neither party shall have any express or implied right or authority to assume or
create any obligations on behalf of or in the name of the other party or to bind
the other party to any other contract, agreement or undertaking with any third
party except as specifically provided for herein. The parties' use of the term
"partner" or its equivalent is for marketing purposes only, and shall have no
effect on the legal relationship between the parties hereto.
9.2. FORCE MAJEURE. Neither party shall be liable or responsible in any manner
for failure or delay in performance of any obligation under this Agreement when
such failure or delay is due to the result, in whole or in substantial part, to
any cause beyond the reasonable control of the party whose performance is
delayed or rendered impossible thereby if reasonable steps are taken to resolve
the reason for such failure or delay and the reason for such failure or delay is
promptly transmitted to the other party. If the delay exceeds ninety (90) days
from the initial occurrence each party shall have the right to terminate this
agreement upon thirty (30) days prior written notice to the other party.
9.3. ASSIGNMENT. This Agreement and the provisions hereof shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
successors and assigns. Neither party may assign, transfer, or sublicense its
rights or obligations under this Agreement without prior written consent of the
other party. Notwithstanding the foregoing or any other provision of this
agreement, (a) RoweCom shall have the right to assign this agreement and any
rights hereunder, without Absolute's consent, (i) in connection with any merger,
consolidation, any sale of all or substantially all of RoweCom's assets or any
other transaction in which more than fifty percent (50%) of RoweCom's voting
securities are transferred, or (ii) to any subsidiary or affiliate of RoweCom
(provided that RoweCom shall provide written notice to Absolute identifying such
subsidiary or affiliate); and (b) Absolute shall have the right to assign this
agreement and any rights hereunder, without RoweCom's consent, (i) in connection
with any merger, consolidation, any sale of all or substantially all of
Absolute's assets or any other transaction in which more than fifty percent
(50%) of Absolute's voting securities are transferred, or (ii) to any subsidiary
or affiliate of Absolute (provided that Absolute shall provide written notice to
RoweCom identifying such subsidiary or affiliate).
Neither party may assign this Agreement to a direct competitor of the other
party as listed in the Exhibit C hereto.
9.4. NOTICES. Any notices, waivers and other communications required or
permitted hereunder shall be in writing and shall be deemed to be fully given
when delivered by hand or dispatched (with reasonable evidence of receipt) by
confirmed facsimile transmission, or the next business day after being
dispatched by nationally-recognized overnight courier or mail service, addressed
to the party to whom the notice is intended to
<PAGE>
-15-
be given at the following or such other address as either party may designate by
like notice :
RoweCom: RoweCom, Inc.
15 Southwest Park
Westwood, MA
02090
Phone (617) 497-5800
Fax (617) 497-6825
Attn. Mr. Robert Rea, Business Development Manager
Absolute: Absolute Backorder Service, Inc.
P.O. Box 336 / 36 Edwards Rd.
Foxborough, MA 02035
Phone (508) 543-1950
Fax (508) 543-2878
E-MAIL [email protected]
Attn. Mr. Glenn Jaeger, President
9.5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with substantive laws of the Commonwealth of Massachusetts, without
regard for any choice or conflict of law rule or principle that would result in
the application of the substantive law of any other jurisdiction. Any dispute
relating to or arising out of this Agreement shall be resolved by a federal or
state court located in the Suffolk County in Boston, and each party hereby
submits to the exclusive jurisdiction of such court and explicitly waives any
venue and inconvenient forum objections thereto. The prevailing party shall be
entitled to recover its costs and expenses (including reasonable attorneys'
fees) from the other party.
9.6. SEVERABILITY. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement or the application of such term
or provisions to persons or circumstances other than those as to which it is
held invalid or unenforceable shall not be affected, and each term and provision
of this Agreement shall be valid and be enforced to the fullest extent permitted
by law.
9.7. NO THIRD-PARTY BENEFICIARIES. No person(s) not a party to this Agreement is
an intended beneficiary of this Agreement, and no person(s) not a party to this
Agreement shall have any right to enforce any term of this Agreement.
9.8. WAIVER. No provision of this Agreement shall be deemed to have been waived
unless such waiver is in writing signed by the waiving party. No failure by any
party to insist upon the strict performance of any provision of this Agreement,
or to exercise any right to remedy consequent upon a breach thereof, shall
constitute a waiver of any other
<PAGE>
-16-
provision of this Agreement or a waiver of such provision with respect to any
subsequent breach, unless expressly provided in writing.
9.9. ENTIRE AGREEMENT. This Agreement contains the entire understanding between
the parties relating to the subject matter hereof and supersedes all prior or
contemporaneous oral or written agreements on the same subject matter.
9.10. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
9.11. FURTHER ASSURANCES. Each of the party's covenants and agrees that,
subsequent to the execution and delivery of this Agreement and without any
additional consideration, it will execute and deliver any further legal
instruments and perform any acts which are or may become reasonably necessary to
effectuate the purposes of this Agreement.
9.12. CAPTIONS. Titles and headings in this Agreement are for convenience of
reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
9.13. AMENDMENTS. This Agreement may be modified or amended only by a document
duly executed on behalf of each Party.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representative as of the date first written
above.
ABSOLUTE BACKORDER SERVICE INC. ROWECOM INC.
By: /S/ GLENN JAEGER By: /S/ JEFFREY SANDS
Name:_Glenn Jaeger Name: Jeffrey Sands
Title: President Title:VP of Business Development
<PAGE>
-17-
EXHIBIT A
ROWECOM TRADEMARKS
<PAGE>
-18-
EXHIBIT B
ABSOLUTE TRADEMARKS
[NONE AS OF THE EFFECTIVE DATE]
<PAGE>
-19-
EXHIBIT C
ROWECOM DIRECT COMPETITORS:
- - Amazon.com
- - barnesandnoble.com, llc.
- - Blackwell Ltd.
- - The Electronic Newsstand, Inc.
- - Ebsco Industries, Inc.
- - FatBrain.com, Inc.
- - NewSub Services, Inc.
- - W.T. Cox
- - Wholly-owned subsidiaries of each of the above
ABSOLUTE DIRECT COMPETITORS
- - Alfred Jaeger, Inc.
- - John T Zubal, Inc./USBE
- - Swets Backsets
- - Periodical Services Company (PSC)
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-2000 DEC-31-1999
<PERIOD-START> JAN-01-2000 JAN-01-1999
<PERIOD-END> MAR-31-2000 MAR-31-1999
<CASH> 9,292 13,264
<SECURITIES> 0 0
<RECEIVABLES> 74,659 139,359
<ALLOWANCES> 761 1,847
<INVENTORY> 0 0
<CURRENT-ASSETS> 98,413 163,082
<PP&E> 10,342 10,787
<DEPRECIATION> 750 1,697
<TOTAL-ASSETS> 148,758 215,608
<CURRENT-LIABILITIES> 103,907 155,453
<BONDS> 0 0
0 0
0 0
<COMMON> 104 104
<OTHER-SE> 44,747 60,051
<TOTAL-LIABILITY-AND-EQUITY> 148,758 215,608
<SALES> 51,787 1,699
<TOTAL-REVENUES> 51,787 1,699
<CGS> (47,340) (1,527)
<TOTAL-COSTS> (47,340) (1,527)
<OTHER-EXPENSES> (17,407) (3,437)
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> (1,821) 251
<INCOME-PRETAX> (14,781) (3,014)
<INCOME-TAX> (220) 0
<INCOME-CONTINUING> 0 0
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (15,001) (3,014)
<EPS-BASIC> (1.44) (0.93)
<EPS-DILUTED> (1.44) (0.93)
</TABLE>
