<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 10, 1999
REGISTRATION NO. 333-72799
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THESTREET.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7374 06-15150824
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NO.) IDENTIFICATION NO.)
</TABLE>
------------------------
TWO RECTOR STREET
NEW YORK, NEW YORK 10006
(212) 271-4004
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
KEVIN W. ENGLISH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
THESTREET.COM, INC.
TWO RECTOR STREET
NEW YORK, NEW YORK 10006
(212) 271-4004
(800) 562-9571
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copies To:
<TABLE>
<S> <C>
DAVID J. GOLDSCHMIDT, ESQ. ALEXANDER D. LYNCH, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP ALAN P. BLAUSTEIN, ESQ.
919 THIRD AVENUE BROBECK, PHLEGER & HARRISON LLP
NEW YORK, NEW YORK 10022 1633 BROADWAY, 47TH FLOOR
(212) 735-3000 NEW YORK, NEW YORK 10019
(212) 581-1600
</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
under the Securities Act, check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C>
Common Stock, par value $.01 per share (including the
associated Rights to purchase Series A Junior Participating
Stock)(2)................................................... $75,000,000 $20,850.00
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933.
(2) The Rights to purchase shares of our Series A Junior Participating Preferred
Stock initially are attached to and trade with the shares of our common
stock being registered hereby. Value attributed to such Rights, if any, is
reflected in the market price of our common stock.
------------------------
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, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the expenses to be incurred in connection
with the offering described in this Registration Statement, all of which will be
paid by the Company. All amounts are estimates, other than the SEC registration
fee, the NASD fee, and the Nasdaq listing fee.
<TABLE>
<S> <C>
SEC Registration fee....................................... $20,850.00
NASD fee................................................... $ 8,000.00
Nasdaq listing fee......................................... *
Accounting fees and expenses............................... *
Legal fees and expenses.................................... *
Director and officer insurance expenses.................... *
Printing and engraving..................................... *
Transfer Agent fees and expenses........................... *
Blue sky fees and expenses................................. *
Miscellaneous expenses..................................... *
----------
Total.................................................... $ *
----------
----------
</TABLE>
- ------------------
* To be completed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law ("DGCL"), as amended,
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary damages for a
breach of fiduciary duty as a director, except where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit.
Section 145 of the DGCL provides, among other things, that the Company may
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 (other than
an action by or in the right of the Company) by reason of the fact that the
person is or was a director, officer, agent or employee of the Company or is or
was serving at the Company's request as a director, officer, agent, or employee
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys' ties, judgment, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding. The power to indemnify applies (a) if such
person is successful on the merits or otherwise in defense of any action, suit
or proceeding, or (b) if such person acted in good faith and in a manner he
reasonably believed to be in the best interest, or not opposed to the best
interest, of the Company, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The power to
indemnify applies to actions brought by or in the right of the Company as well,
but only to the extent of defense expenses (including attorneys' fees but
excluding amounts paid in settlement) actually and reasonably incurred and not
to any satisfaction of judgment or settlement of the claim itself, and with the
further limitation that in such actions no indemnification shall be made in the
event of any adjudication of negligence or misconduct in the performance of his
duties to the Company, unless the court believes that in light of all the
circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director, who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to such
actions to be entered in the books containing the minutes of the meetings of the
board of
II-1
<PAGE>
directors at the time such action occurred or immediately after such absent
director receives notice of the unlawful acts.
Our Amended and Restated Certificate of Incorporation includes a provision
that eliminates the personal liability of its directors for monetary damages for
breach of fiduciary duty as a director, except for liability:
-- for any breach of the director's duty of loyalty to TheStreet.com or its
stockholders;
-- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
-- under the section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
-- for any transaction from which the director derived an improper personal
benefit.
These provisions are permitted under Delaware law.
Our Amended and Restated Bylaws provide that:
-- we must indemnify our directors and officers to the fullest extent
permitted by Delaware law;
-- we may indemnify our other employees and agents to the same extent that
we indemnified our officers and directors, unless otherwise determined
by our Board of Directors; and
-- we must advance expenses, as incurred, to our directors and executive
officers in connection with a legal proceeding to the fullest extent
permitted by Delaware Law.
The indemnification provisions contained in the Company's Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws are not
exclusive of any other rights to which a person may be entitled by law,
agreement, vote of stockholders or disinterested directors or otherwise. In
addition, the Company maintains insurance on behalf of its directors and
executive officers insuring them against any liability asserted against them in
their capacities as directors or officers or arising out of such status.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since its inception, we issued and sold the following securities to certain
corporate and institutional investors and high net worth individuals, including
certain of our directors and officers, in transactions exempt from the
registration requirements of the Securities Act pursuant to Section 4(2)
thereunder:
From our inception as a limited liability company in June 1996, until May
1998, we were financed through contributions from our founders and through loans
at the prime interest rate plus 1%. In return for their contributions, our
founders received certain amounts of our Class A, B, C and D membership units of
the limited liability company and a lender received Class E units.
In May 1998, our Board of Directors approved our reorganization from a
limited liability company into a C Corporation. As part of this reorganization,
each Class C membership unit was converted into 181.81818 shares of our common
stock. In addition, our Class A and Class B membership units were converted into
shares of our Series A 9 1/2% Cumulative Preferred Stock and Series C Preferred
Stock at a ratio of one preferred share per $100 of both Class A and Class B
membership units. Our Class D and Class E membership units were converted into
shares of our Series A 9 1/2% Cumulative Preferred Stock at a ratio of one
preferred share per $100 of Class D and Class E membership units.
In May 1998, we sold 101,475 shares of our Series B 9 1/2% Cumulative
Preferred Stock ("Series B Preferred Stock") and 3,418,333 shares of our common
stock for an aggregate price of approximately $10,000,000.
II-2
<PAGE>
In December 1998, we sold 243,891 shares of our Series B Preferred Stock
and 4,072,778 shares of our common stock for an aggregate price of approximately
$25,000,000.
In February 1999, we sold 83,333 shares of our common stock for an
aggregate price of $1,000,000.
In February 1999, we also sold 37,728 shares of our Series B Preferred
Stock and 1,320,901 shares of our common stock to The New York Times Company for
an aggregate consideration of $15,000,000 in cash and services.
From time to time, we have granted stock options to employees. The
following table sets forth information regarding the grants during the past
three fiscal years:
<TABLE>
<CAPTION>
NUMBER OF WEIGHTED AVERAGE
SHARES GRANTED EXERCISE PRICE
-------------- ----------------
<S> <C> <C>
June 18, 1996 (inception) through December 31, 1996............... -- --
January 1, 1997 through December 31, 1997......................... -- --
January 1, 1998 through December 31, 1998......................... 1,663,953 $ 0.12
</TABLE>
No underwriters were involved in connection with the sales of securities
referred to in this Item 15.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF EXHIBIT
- -------- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
1.1 -- Underwriting Agreement**
3.1 -- Amended and Restated Certificate of Incorporation of TheStreet.com**
3.2 -- By-laws of TheStreet.com, as amended**
4.1 -- Amended and Restated Registration Rights Agreement dated as of December 21, 1998 among TheStreet.com
and stockholders named therein
4.2 -- TheStreet.com's Rights Plan dated , 1999**
4. -- Specimen Certificate for TheStreet.com's common stock**
5.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP**
10.1 -- License Agreement, dated February 17, 1999, between Yahoo! Inc. and TheStreet.com, Inc.+
10.2 -- The Amended and Restated 1998 Stock Incentive Plan of the TheStreet.com**
10.3 -- Interactive Services Agreement, dated April 16, 1998, between America Online, Inc. and TheStreet.com,
L.L.C.+
10.3.1 -- Letter, dated July 24, 1998 from America Online, Inc.
10.4 -- Content License and Marketing Agreement, dated as of January 12, 1999, between E*TRADE Group, Inc.
and TheStreet.com, Inc.+
10.5 -- Employment Agreement, dated, October 6, 1998, between Kevin English and TheStreet.com, Inc.**
10.6 -- Employment Agreement, dated February 22, 1999, between James Cramer and TheStreet.com, Inc.**
10.7 -- Content License Agreement, dated January 1, 1998, between Yahoo! Inc. and TheStreet.com, Inc.+
16.1 -- Letter, dated March 2, 1999 from Anchin, Block and Anchin LLP
23.1 -- Consent of Arthur Andersen LLP*
23.2 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1)**
24.1 -- Power of Attorney (contained on the signature pages of this Registration Statement)*
99.1 -- Consent of Michael Golden*
</TABLE>
- ------------------
* Previously filed
** To be filed by amendment.
+ Confidential treatment has been requested for certain portions of these
documents.
II-3
<PAGE>
(b) Financial Statement Schedules.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing 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 provisions described in Item 14, or otherwise, the
registrant has been informed 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 by the registrant 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 pubic policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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 the purpose 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 bonafide offering thereof.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW
YORK, STATE OF NEW YORK, ON MARCH 10, 1999.
TheStreet.com, Inc.
By: *
----------------------------------
Name: Kevin English
Title: Chairman of the Board of
Directors, Chief Executive
Officer and President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATE INDICATED BELOW.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ -------------------------------------------- -----------------
<S> <C> <C>
* Chairman of the Board of Directors, Chief March 10, 1999
- ------------------------------------------ Executive Officer and President
Kevin English
/s/ Paul Kothari Chief Financial Officer March 10, 1999
- ------------------------------------------
Paul Kothari
* Editor-in-Chief and Director March 10, 1999
- ------------------------------------------
Dave Kansas
* Director March 10, 1999
- ------------------------------------------
James J. Cramer
* Director March 10, 1999
- ------------------------------------------
Martin Peretz
* Director March 10, 1999
- ------------------------------------------
Fred Wilson
* Director March 10, 1999
- ------------------------------------------
Jerry Colonna
* Director March 10, 1999
- ------------------------------------------
Edward F. Glassmeyer
* By: /s/ Paul Kothari Attorney-In-Fact March 10, 1999
-------------------------------------
Paul Kothari
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF EXHIBIT
- -------- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
1.1 -- Underwriting Agreement**
3.1 -- Amended and Restated Certificate of Incorporation of TheStreet.com**
3.2 -- By-laws of TheStreet.com, as amended**
4.1 -- Amended and Restated Registration Rights Agreement dated as of December 21, 1998 among TheStreet.com
and stockholders named therein
4.2 -- TheStreet.com's Rights Plan dated , 1999**
4. -- Specimen Certificate for TheStreet.com's common stock**
5.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP**
10.1 -- License Agreement, dated February 17, 1999, between Yahoo! Inc. and TheStreet.com, Inc.+
10.2 -- The Amended and Restated 1998 Stock Incentive Plan of the TheStreet.com**
10.3 -- Interactive Services Agreement, dated April 16, 1998, between America Online, Inc. and TheStreet.com,
L.L.C.+
10.3.1 -- Letter, dated July 24, 1998 from America Online, Inc.
10.4 -- Content License and Marketing Agreement, dated as of January 12, 1999, between E*TRADE Group, Inc.
and TheStreet.com, Inc.+
10.5 -- Employment Agreement, dated, October 6, 1998, between Kevin English and TheStreet.com, Inc.**
10.6 -- Employment Agreement, dated February 22, 1999, between James Cramer and TheStreet.com, Inc.**
10.7 -- Content License Agreement, dated January 1, 1998, between Yahoo! Inc. and TheStreet.com, Inc.+
16.1 -- Letter, dated March 2, 1999 from Anchin, Block and Anchin LLP
23.1 -- Consent of Arthur Andersen LLP*
23.2 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1)**
24.1 -- Power of Attorney (contained on the signature pages of this Registration Statement)*
99.1 -- Consent of Michael Golden*
</TABLE>
- ------------------
* Previously filed
** To be filed by amendment.
+ Confidential treatment has been requested for certain portions of these
documents.
<PAGE>
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
December 21, 1998
To the several persons named at the foot hereof:
Ladies and Gentlemen:
WHEREAS, pursuant to the Series B Preferred Stock and Common Stock
Purchase Agreement, dated as of May 7, 1998 (the "May Purchase Agreement"), by
and among The Street.Com, Inc., a Delaware corporation (the "Company"), and the
several persons named therein as purchasers (the "May Purchasers"), the May
Purchasers purchased an aggregate of 101,475 shares of Series B 9-1/2%
Cumulative Preferred Stock, $0.01 par value ("Series B Preferred Stock"), of
the Company, and an aggregate of 10,250,000 shares of Common Stock, $0.01 par
value, of the Company; and
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of the
date hereof (the "December Purchase Agreement"), by and among the Company and
the several persons, including the May Purchasers, named therein as purchasers
(the "December Purchasers" and, together with the May Purchasers, the
"Purchasers"), the December Purchasers have agreed to purchase 243,891 shares
of Series B Preferred Stock and 12,218,333 shares of Common Stock; and
WHEREAS, pursuant to the Registration Rights Agreement, dated May 7,
1998 (the "May Registration Rights Agreement"), by and among the Company and
the stockholders named therein ,which included the May Purchasers, the Company
granted certain registration rights to such stockholders; and
WHEREAS, the Company wishes to grant the same registration rights to
the December Purchasers with respect to the shares of Common Stock and shares
of Series B Preferred Stock being purchased by them under the December Purchase
1
<PAGE>
Agreement, as the Company granted to the May Purchasers in respect of the
shares of Common Stock and shares of Series B Preferred Stock purchased by them
under the May Purchase Agreement; and
WHEREAS, the Company and the May Purchasers agree to amend and restate
in its entirety the May Registration Rights Agreement in order to include the
transactions contemplated by the December Purchase Agreement and make certain
other changes to the registration rights granted by the Company to certain of
its stockholders.
NOW, THEREFORE, as an inducement to each of you to consummate the
transactions contemplated by the December Purchase Agreement, and in order to
amend and restate in its entirety the May Registration Rights Agreement, the
Company hereby covenants and agrees with each of you, and with each subsequent
holder of Restricted Stock (as such terms are defined herein) as follows:
1. Certain Definitions. As used herein, the following terms
shall have the following respective meanings:
"Common Stock" shall mean the Common Stock, par value $0.01
per share, of the Company, or such shares of stock as are issuable upon
conversion thereof.
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"Founders" shall mean, collectively, (i) the several persons
and entities listed as the "Cramer Stockholders" on the signature pages hereto,
(ii) Max Palevksy and (iii) the several persons and entities listed as the
"Peretz Stockholders" on the signature pages hereto.
"Founders' Shares" shall mean an aggregate of (i) 18,547,941
shares of Common Stock held by the Founders (including shares of Common Stock
being purchased by them pursuant to the December Purchase Agreement), (ii) such
number of shares of Common Stock as shall be issuable upon the conversion of
the shares of Series A 9-1/2% Cumulative Preferred Stock, par value $0.01 per
share of the
2
<PAGE>
Company and Series C Preferred Stock, par value $0.01 per share of the Company,
held by the Founders on the date hereof and (iii) such number of shares of
Common Stock as shall be issuable upon the conversion of the shares of Series B
Preferred Stock (a) purchased by the Founders under the May Purchase Agreement
and (b) being purchased by the Founders under the December Purchase Agreement,
the certificates for all of which are required to bear the legend set forth in
Section 13 of the Stockholders' Agreement.
"IPO" shall mean the initial public offering of the Company's
Common Stock under the Securities Act.
"Investors" shall mean those Purchasers who are not Founders.
"Investors' Shares" shall mean up to an aggregate of (i)
20,398,120 shares of Common Stock held by the Investors (including shares of
Common Stock being purchased by them pursuant to the December Purchase
Agreement) and (ii) such number of shares of Common Stock as shall be issuable
upon the conversion of the shares of Series B Preferred Stock (a) purchased by
the Investors under the May Purchase Agreement and (b) being purchased by the
Investors under the December Purchase Agreement, the certificates for all of
which are required to bear the legend set forth in Section 13 of the
Stockholders' Agreement.
"Public Sale" shall mean any sale of shares of preferred
stock of the Company or Common Stock to the public pursuant to an offering
registered under the Securities Act or to the public pursuant to the provisions
of Rule 144 (or any successor or similar rule) adopted under the Securities
Act.
"Purchase Agreement Shares" shall mean an aggregate of (i)
10,250,000 shares of Common Stock purchased by the May Purchasers pursuant to
the May Purchase Agreement, (ii) 12,218,333 shares of Common Stock being
purchased by the Purchasers pursuant to the December Purchase Agreement and
(iii) such number of shares of Common Stock as shall be issuable upon the
conversion of the shares of Series B Preferred Stock (a) purchased by the May
Purchasers under the May Purchase Agreement and (b) being purchased by the
December Purchasers under the December Purchase Agreement.
"Registration Expenses" shall mean the expenses so described
in Section 8 hereof.
3
<PAGE>
"Restricted Stock" shall mean the Founders' Shares and the
Investors' Shares, the certificates for which are required to bear the legend
set forth in Section 13 of the Stockholders' Agreement, excluding Founders'
Shares or Investors' Shares which have been (i) registered under the Securities
Act pursuant to an effective registration statement filed thereunder and
disposed of in accordance with the registration statement covering them or (ii)
publicly sold pursuant to Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereun der, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in
Section 6 hereof.
2. Required Registration.
(a) At any time on or after the first anniversary of
the effective date of the IPO, the holders of at least 33-1/3% of the Purchase
Agreement Shares outstanding at such time may request the Company to register
all or any portion of the Restricted Stock held by such requesting holder or
holders for sale in the manner specified in such notice; provided, however,
that the only securities which the Company shall be required to register
pursuant hereto shall be shares of Common Stock; provided further, that the
Company shall not be obligated to effect any such registration unless the
proceeds to be realized in connection with such registration shall not
reasonably be expected to be less than $500,000.
(b) Promptly following receipt of any notice under
this Section 2, the Company shall immediately notify any holders of Restricted
Stock from whom notice has not been received and shall use its best efforts to
register under the Securities Act, for Public Sale in accordance with the
method of disposition specified in such notice from requesting holders, the
number of shares of Restricted Stock specified in such notice (and in any
notices received from other holders of Restricted Stock within thirty (30) days
after their receipt of notice from the Company); provided, however, that the
number of shares of Restricted Stock to be included in such an underwriting may
be reduced (first, pro rata among the requesting holders of Restricted Stock
based upon the number of shares of Restricted Stock which are not Purchase
Agreement Shares for which registration has been requested and then, if
necessary, pro rata among holders of Restricted Stock so requesting
registration based upon the number of Purchase Agreement Shares for
4
<PAGE>
which registration has been requested) if and to the extent that the managing
underwriter, if the proposed method of disposition specified by the requesting
holders shall be an underwritten public offering, shall be of the opinion that
such inclusion would materially adversely affect the marketing of the
Restricted Stock. If such method of disposition shall be an underwritten public
offering, the Company shall designate the managing underwriter of such
offering, subject to the approval of the selling holders of a majority of the
Restricted Stock covered by the offering, which approval shall not be
unreasonably withheld. The Company shall be obligated to register Restricted
Stock pursuant to this Section 2 on two (2) occasions only; provided that such
obligation shall be deemed satisfied only when a registration statement
covering all shares of Restricted Stock specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) Notwithstanding anything to the contrary in this
Agreement, the Company may delay for up to ninety (90) days the filing or
effectiveness of a registration statement pursuant to a request under this
Section 2 if the Board of Directors of the Company shall determine that such a
registration would not be in the best interests of the Company at such time,
during which period the requesting holders may withdraw their request (provided
that, if not so withdrawn, the Company will not have breached its obligations
under this Section 2 during such delay period), in which case the requesting
holders will not be deemed to have made a request for registration under this
Section 2.
(d) The Company shall be entitled to include in any
registration statement referred to in this Section 2, for sale in accordance
with the method of disposition specified by the requesting holders, shares of
Common Stock to be sold by the Company for its own account, except as and to
the extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Restricted Stock (if any) to be sold.
Except for registration statements on Form S-4, S-8 or any successor form
thereto, the Company will not file with the Commission any other registration
statement with respect to its Common Stock, whether for its own account or that
of other holders, from the date of receipt of a notice from requesting holders
pursuant to this Section 2 until the earliest of (x) six (6) months following
the effective date of such registration, (y) completion of the period of
distribution of the registration contemplated thereby and (z) withdrawal of
such registration.
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3. Form S-3 Registration.
If at any time (i) the Company shall receive from any holder
or holders of Restricted Stock a written request or requests that the Company
effect a registration of all or any portion of the shares of Restricted Stock
on Form S-3 or any successor thereto, and (ii) the Company is a registrant
entitled to use Form S-3 or any successor thereto to register such shares, the
Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other holders of any shares of Restricted Stock; and
(ii) as soon as practicable, effect such
registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other government requirements or
regulations) as may be so requested and as would permit or facilitate
the sale and distribution of all or such portion of such holder's or
holders' Restricted Stock as are specified in such request, together
with all or such portion of the Restricted Stock of any holder or
holders of Restricted Stock joining in such request as are specified
in a written request given within thirty (30) days after receipt of
such written notice from the Company; provided that the Company shall
not be obligated to effect any such registration, qualification or
compliance pursuant to this Section 3 more than once in any 180-day
period and provided further that the Company shall not be obligated to
effect any such registration unless the proceeds to be realized in
connection with such registration shall not reasonably be expected to
be less than $500,000. Subject to the foregoing, the Company shall
file a registration statement covering the Restricted Stock so
requested to be registered as soon as practicable after receipt of the
request or requests of the holder or holders of Restricted Stock to do
so.
Notwithstanding anything to the contrary in this Agreement, (i) the Company may
delay for up to ninety (90) days the effectiveness of, and (ii) the Company may
suspend for up to thirty (30) days, not more than once during the term of this
Agreement, the effectiveness of, a registration statement pursuant to a request
under this Section 3 if the Board of Directors of the Company shall determine
such registration (or, in the case of a suspension of a registration, sales
under such registration statement) would not be in the best interests of the
Company at such
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time, during which period the requesting holders may withdraw their request, in
which case the requesting holders will not be deemed to have made a request for
registration under this Section 3.
(a) Commencing one year after the Company becomes
subject to the requirements of Section 12 or 15(d) of the Securities Exchange
Act of 1934, as amended, the Company shall use its reasonable best efforts to
satisfy the registrant requirements applicable for use of registration
statements on Form S-3 (or any successor form thereto) for the resale of
securities by selling stockholders.
(b) Registrations effected pursuant to this Section
3 shall not be counted as requests for registration effected pursuant to
Section 2.
4. Incidental Registration. If the Company at any time (other
than pursuant to Section 2 or 3 hereof) proposes to register any of its Common
Stock under the Securities Act for sale for cash only to the public, whether
for its own account or for the account of other security holders or both
(except with respect to registration statements on Forms S-4 or S-8 or another
form not available for registering the Restricted Stock for sale to the public,
a registration statement on Form S-3 to be filed by the Company to register
shares of Common Stock issued in consideration for an acquisition, or a
registration statement on Form S-1 covering solely an employee benefit plan),
it will give written notice at such time to all holders of outstanding
Restricted Stock of its intention to do so. Upon the written request of any
such holder, given within thirty (30) days after receipt of any such notice by
the Company, to register any of its Restricted Stock (which request shall state
the intended method of disposition thereof), the Company will use its
reasonable best efforts to cause the Restricted Stock as to which registration
shall have been so requested, to be included in the securities to be covered by
the registration statement proposed to be filed by the Company, all to the
extent requisite to permit the sale or other disposition by the holder (in
accordance with its written request) of such Restricted Stock so registered;
provided that nothing herein shall prevent the Company from abandoning or
delaying any such registration at any time. In the event that any registration
pursuant to this Section 4 shall be, in whole or in part, an underwritten
public offering of Common Stock, any request by a holder pursuant to this
Section 4 to register Restricted Stock shall specify that either (i) such
Restricted Stock is to be included in the underwriting on the same terms and
conditions as the shares of Common Stock otherwise being sold through
underwriters under such registration or (ii) such Restricted Stock is to be
sold in the open market without any underwriting, on terms and conditions
comparable to those normally applicable to offerings of common stock in
reasonably similar circumstances. The number of
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<PAGE>
shares of Restricted Stock to be included in such an underwriting may be
reduced (first, pro rata among the requesting holders of Restricted Stock based
upon the number of shares of Restricted Stock which are not Purchase Agreement
Shares for which registration has been requested and then, if necessary, pro
rata among holders of Restricted Stock so requesting registration based upon
the number of Purchase Agreement Shares for which registration has been
requested), if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein; and provided, however, that
except with respect to the IPO, in no event shall such number of shares of
Restricted Stock be reduced so that shares of Restricted Stock constitute less
than thirty percent (30%) of the aggregate number of shares to be offered in
such underwriting.
5. Registration Procedures. If and whenever the Company is
required by the provisions of Section 2, 3 or 4 hereof to use its reasonable
best efforts or best efforts, as the case may be, to effect the registration of
any of the Restricted Stock under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare (and afford counsel for the selling
holders up to 10 business days' opportunity to review and comment thereon) and
file with the Commission a registration statement (which, in the case of an
underwritten public offering pursuant to Section 2 hereof, shall be on Form S-1
or other form of general applicability satisfactory to the managing underwriter
selected as therein provided) with respect to such securities and use its
reasonable best efforts or best efforts, as the case may be, to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling
holders up to 10 business days' opportunity to review and comment thereon) and
file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective for the period specified in
paragraph (a) above and to comply with the provisions of the Securities Act
with respect to the disposition of all Restricted Stock covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each seller and to each underwriter
such number of copies of the registration statement and the prospectus included
therein
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(including each preliminary prospectus) as such persons may reasonably request
in order to facilitate the Public Sale or other disposition of the Restricted
Stock covered by such registration statement;
(d) use its reasonable best efforts or best efforts,
as the case may be, to register or qualify the Restricted Stock covered by such
registration statement under the securities or blue sky laws of such
jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter, shall reasonably
request (provided that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in any
jurisdiction);
(e) use its reasonable best efforts or best efforts,
as the case may be, to list the Restricted Stock covered by such registration
statement with any securities exchange on which any Common Stock of the Company
is then listed;
(f) immediately notify each seller under such
registration statement and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(g) use its reasonable best efforts or best efforts,
as the case may be (if the offering is underwritten and at the request of any
seller of Restricted Stock), to furnish, at the request of any seller, on the
date that Restricted Stock is delivered to the underwriters for sale pursuant
to such registration: (i) an opinion dated such date of counsel representing
the Company, for the purposes of such registration, addressed to the
underwriters and either addressed to such seller or specifically entitling such
seller to rely thereupon, stating that such registration statement has become
effective under the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement, the
related prospectus, and each amendment or supplement thereof, comply as to form
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder (except that such
counsel need express
9
<PAGE>
no opinion as to financial statements, the notes thereto, and the financial
schedules and other financial and statistical data contained therein) and (C)
to such other effects as may reasonably be requested by counsel for the
underwriters or by such seller or its counsel; and (ii) a letter dated such
date from the independent public accountants retained by the Company, addressed
to the underwriters and to such seller, stating that they are independent
public accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements of the Company included
in the registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to
the period ending no more than five (5) business days prior to the date of such
letter) with respect to the registration in respect of which such letter is
being given as such underwriters or seller may reasonably request; and
(h) make available for inspection by each seller,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accoun tant or agent in connection with such
registration statement.
For purposes of paragraphs (a) and (b) above and of Section 2(d) hereof, the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby
or six (6) months after the effective date thereof.
In connection with each registration hereunder, as a
condition to the right to sell under any registration statement (a) the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be reasonably necessary in order to assure compliance with federal and
applicable state securities laws; (b) any such selling holder of Restricted
Stock will enter into a written agreement with the underwriters and the Company
in such form and containing such provisions as are customary in the securities
business for such an arrangement between major underwriters and companies of
the Company's size and investment stature, and such selling holder of
Restricted Stock will use its reasonable best efforts to cause its
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<PAGE>
counsel to give any opinion customarily given, in connection with secondary
distributions under similar circumstances; (c) during such time as any such
selling holder of Restricted Stock may be engaged in a distribution of such
stock, such selling holder of Restricted Stock will comply with all applicable
laws and, to the extent required by such laws, will, among other things (i) not
engage in any stabilization activity in connection with the securities of the
Company in contravention of such rules, (ii) distribute the Restricted Stock
owned by such selling holder of Restricted Stock solely in the manner described
in applicable registration statement or as otherwise permitted by law, (iii)
cause to be furnished to each agent or broker-dealer to or through whom the
Restricted Stock owned by such selling holder of Restricted Stock may be
offered, or to the offeree if an offer is made directly by such holder, such
copies of the applicable prospectus (as amended and supplemented to such date)
and the documents incorporated by reference therein as may be required by such
agent, broker-dealer or offeree, provided that the Company shall have provided
such selling holder of Restricted Stock with an adequate number of copies
thereof and (iv) not bid for or purchase any securities of the Company or
attempt to induce any person to purchase any securities of the Company; and (d)
on notice from the Company of the happening of any event specified in paragraph
(e) of Section 5 hereof, it requires the suspension by such selling holder of
Restricted Stock of the distribution of any of the Restricted Stock, then such
selling holder will cease offering or distributing the Restricted Stock until
the Company notifies such selling holder that the offering and distribution of
the Restricted Stock may recommence.
In connection with each registration pursuant to Sections 2,
3 and 4 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature;
provided, however, that such agreement shall not contain any such provision
applicable to the Company which is inconsistent with the provisions hereof; and
provided, further, that the time and place of the closing under said agreement
shall be as mutually agreed upon between the Company and such managing
underwriter.
6. Expenses. All expenses incurred by the Company in
complying with Sections 2, 3 or 4 hereof, including without limitation all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance and reasonable fees and
expenses of not more than one counsel for the sellers of
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Founders' Shares and not more than one counsel for the sellers of Investors'
Shares (not more than $25,000 in fees for both such counsel), but excluding any
Selling Expenses, are herein called "Registration Expenses". All underwriting
discounts and selling commissions applicable to the sale of Restricted Stock
are herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Sections 2, 3 and 4 hereof.
All Selling Expenses in connection with any registration statement filed
pursuant to Section 2, 3 or 4 hereof shall be borne by the participating
sellers in proportion to the number of shares sold by each, or by such persons
other than the Company (except to the extent the Company shall be a seller) as
they may agree.
7. Indemnification. (a) In the event of a registration of any
of the Restricted Stock under the Securities Act pursuant to Section 2, 3 or 4
hereof, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder and each underwriter of Restricted Stock thereunder
and each officer, director and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such seller
or underwriter or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such Restricted Stock was registered under the Securities
Act pursuant to Section 2, 3 or 4, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
indemnity in this Section 7 shall not apply to any amounts paid in settlement
of any such loss, claim, damage or liability if settlement is affected without
the consent of the Company, and (ii) the Company will not be liable in any such
case if and to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information furnished
by such seller, such underwriter or such controlling person in writing
specifically for use in such registration statement or prospectus.
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<PAGE>
(b) In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 2, 3 or 4 hereof,
to the extent permitted by law each seller of such Restricted Stock thereunder,
severally and not jointly, will indemnify and hold harmless the Company and
each officer, director and each other person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer or director or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section
2, 3 or 4, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such,
furnished in writing to the Company by such seller specifically for use in such
registration statement or prospectus; and provided, further, that the liability
of each seller hereunder shall be limited to the proportion of any such loss,
claim, damage, liability or expense which is equal to the proportion that the
public offering price of shares sold by such seller under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not to exceed the proceeds (net of underwriting discounts and
commissions) received by such seller from the sale of Restricted Stock covered
by such registration statement.
(c) Promptly after receipt by an indemnified party
hereunder of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party other than under this
Section 7. In case any such action shall be
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<PAGE>
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel reasonably satisfactory to such indemnified party,
and, after notice from the indemnifying party to such indemnified party of its
election so to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section 7 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there are
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably are in conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the reasonable expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. No settlement of any such
claim, loss, damage, liability or action shall be made by the indemnified party
without the prior written consent (not to be unreasonably withheld or delayed)
of the indemnifying party.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in
paragraphs (a) and (b) of this Section 7 is unavailable or insufficient to hold
harmless an indemnified party under such paragraphs in respect of any losses,
claims, damages or liabilities or actions in respect thereof referred to
therein, then each indemnifying
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<PAGE>
party shall in lieu of indemnifying such indemnified party contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or actions in such proportion as appropriate to
reflect the relative fault of the Company, on the one hand, and the sellers of
such Restricted Stock, on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
actions as well as any other relevant equitable considerations, including the
failure to give any notice under paragraph (c) of this Section 7. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact relates to information
supplied by the Company, on the one hand, or the sellers of such Restricted
Stock, on the other hand, and to the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the sellers of Restricted Stock agree that it would
not be just and equitable if contributions pursuant to this paragraph were
determined by pro rata allocation (even if all of the sellers of such
Restricted Stock were treated as one entity for such purpose) or by any other
method of allocation which did not take account of the equitable considerations
referred to above in this paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
action in respect thereof, referred to above in this paragraph, shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of such Re
stricted Stock shall not be required to contribute any amount in excess of the
amount, if any, by which the total price at which the Common Stock sold by each
of them was offered to the public exceeds the amount of any damages which they
would have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No person guilty of fraudulent misrepresentations
(within the meaning of Section 11(f) of the Securities Act), shall be entitled
to contribution from any person who is not guilty of such fraudulent
misrepresentation.
The indemnification of underwriters provided for in this
Section 7 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters. In that event the
indemnification of the sellers of Restricted Stock in such underwriting shall
at the sellers' request be modified to conform to such terms and conditions.
8. Changes in Restricted Stock. If, and as often as, there
are any changes in the Common Stock by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions
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hereof, as may be required, so that the rights and privileges granted hereby
shall continue with respect to the Common Stock as so changed and shall apply
to any securities received in any such transaction.
9. Rule 144 Reporting. The Company agrees with you as
follows:
(a) From and after such time as the Company becomes
subject to the reporting requirements of the Exchange Act, the Company shall
make and keep public information available, as those terms are understood and
defined in Rule 144 under the Securities Act, at all times from and after the
date it is first required to do so.
(b) The Company shall file with the Commission in a
timely manner all reports and other documents as the Commission may prescribe
under Section 13(a) or 15(d) of the Exchange Act at any time after the Company
has become subject to such reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of
Restricted Stock forthwith upon request (i) a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any time
from and after the date it first becomes subject to such reporting
requirements), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents so filed as a holder may reasonably request to avail
itself of any rule or regulation of the Commission allowing a holder of
Restricted Stock to sell any such securities without registration.
10. Miscellaneous.
(a) Each holder of Restricted Stock will agree, to
the extent reasonably requested by any underwriter of securities of the Company
in connection with an initial public offering of the Company's Common Stock, to
enter into an agreement consistent with then market practice for major bracket
underwriters not to sell or otherwise transfer or dispose of any registrable
securities for such period of time (not to exceed 180 days) following the
effective date of a registration statement of the Company filed under the
Securities Act, which agreement shall also bind the executive officers,
directors, and other shareholders holding more than five percent (5%) of the
then-outstanding capital stock of the Company, on terms and
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conditions substantially similar to those which shall apply to holders of
Restricted Stock.
(b) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto, including, without
limitation, the rights to indemnification under Section 7 hereof, shall bind
and inure to the benefit of the respective successors and permitted assigns of
the parties hereto whether so expressed or not. Without limiting the generality
of the foregoing, the registration rights conferred herein on the holders of
Restricted Stock shall inure to the benefit of any and all subsequent holders
from time to time of the Restricted Stock.
(c) All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by first
class registered mail, postage prepaid, addressed as follows:
if to the Company, to it at Two Rector Street, New York, New
York 10006, attention: Chief Financial Officer, facsimile number (212)
271-4005, with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third
Avenue, New York, NY 10022, attention: David Goldschmidt, Esq., facsimile
number (212) 735-2000;
if to any holder of Restricted Stock, to him, her or it, as
the case may be, at its address as set forth on Annex I hereto;
if to any subsequent holder of Restricted Stock, to it at
such address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Restricted
Stock), or to the holders of Restricted Stock (in the case of the Company).
(d) This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(e) This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof. This Agreement may
not be waived, modified or amended, nor may the Company grant any third party
any registration rights more favorable than or inconsistent with any of those
contained herein as long as any of the registration rights under this Agreement
remains in effect, except in writing executed by the Company, the holders of a
majority of the
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Investors' Shares and the holders of a majority of the Founders' Shares;
provided, however, that any such amendment, modification or waiver shall affect
all of the holders of Investors' Shares in the same manner and that no such
amendment, modification or waiver that would adversely affect the rights or
alter the obligations of any holder of Investors' Shares hereunder or confer on
any holder of Investors' Shares any benefit not shared ratably by all of the
other holders of Investors' Shares will be effective without the prior written
approval of any such adversely affected holder of Investors' Shares.
(f) 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 instrument.
(g) If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other provision
of this Agreement, and this Agreement shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
Please indicate your acceptance of the foregoing by signing
and returning the enclosed counterpart of this letter, whereupon this letter
(herein sometimes called "this Agreement") shall be a binding agreement between
the Company and you, and shall amend and restate in its entirety the May
Registration Rights Agreement.
Very truly yours,
THE STREET.COM, INC.
By /s/ Kevin W. English
------------------------------------
Name: Kevin W. English
----------------------------------
Title: Chairman & CEO
---------------------------------
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/s/ James Cramer
--------------------------------------
James Cramer
/s/ Martin Peretz
--------------------------------------
Martin Peretz
/s/ Kevin S. Moore (Attorney-in-Fact)
--------------------------------------
Anne Peretz
/s/ Kevin S. Moore (Attorney-in-Fact)
--------------------------------------
Jesse Peretz
/s/ Kevin S. Moore (Attorney-in-Fact)
--------------------------------------
Evgenia Peretz
/s/ Arthur Cohen
-------------------------------------
The Street.Com Distribution Trust
By: Arthur Cohen
----------------------------------
Trustee
Trust B under Deed 6.23.81
By: /s/ Kevin S. Moore
--------------------------------
Trustee
Trust C under Deed 6.23.81
By: /s/ Kevin S. Moore
--------------------------------
Trustee
19
<PAGE>
Trust for Martin Peretz, 1976
By: /s/ Kevin S. Moore
-----------------------------------
Trustee
/s/ Kevin S. Moore (Attorney-in-Fact)
--------------------------------------
Lisa Farnsworth
/s/ Kevin S. Moore (Attorney-in-Fact)
--------------------------------------
David Farnsworth
/s/ Edward W. Stock
--------------------------------------
Trust for Anne Peretz, 1944
By: Edward W. Stock
-----------------------------------
Trustee
PERETZ PARTNERS, L.L.C.
/s/ Martin Peretz
--------------------------------------
By: Martin Peretz
Title: Manager
ACKULA INVESTMENTS LTD.
/s/ Martin Bowen & Ian Williamson
--------------------------------------
By: Martin Bowen & Ian Williamson
Title:
20
<PAGE>
CRAMER PARTNERS, L.L.C.
/s/ James Cramer
-----------------------------------
By: James J. Cramer
Title: President
/s/ Max Palevsky
-----------------------------------
Max Palevsky
THE FLATIRON FUND LLC
By: /s/ Fred Wilson
---------------------------------
Name: Fred Wilson
Title: Managing Member
THE FLATIRON FUND 1998/99, LLC
By: /s/ Fred Wilson
---------------------------------
Managing Member
FLATIRON ASSOCIATES, LLC
By: Flatiron Partners LLC,
its Manager
By: /s/ Fred Wilson
--------------------------------
Managing Member
21
<PAGE>
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its General Partner
By: /s/ Donald J. Hoffman
-----------------------------------------------
Name: Donald J. Hoffman
Title: Partner
SOFTBANK TECHNOLOGY VENTURES IV, L.P.
By: STV IV LLC, its General Partner
By: /s/ Charles R. Lax
-----------------------------------------------
Name: Charles R. Lax
Title:
SOFTBANK TECHNOLOGY ADVISORS
FUND, L.P.
By: /s/ Charles R. Lax
-----------------------------------------------
Name: Charles R. Lax
Title:
CONSTELLATION VENTURE CAPITAL, L.P.
By: /s/ Clifford Friedman
-----------------------------------------------
Name: Clifford Friedman
Title: Managing Member
22
<PAGE>
CONSTELLATION VENTURE
CAPITAL OFFSHORE, L.P.
By: /s/ Clifford Friedman
-----------------------------------------------
Name: Clifford Friedman
Title: Managing Member
PEQUOT PRIVATE EQUITY FUND, L.P.
By: /s/ David J. Malat
-----------------------------------------------
Name: David J. Malat
Title: CFO
PEQUOT OFFSHORE PRIVATE
EQUITY FUND, L.P.
By: /s/ David J. Malat
-----------------------------------------------
Name: David J. Malat
Title: CFO
ANDREW KESSLER
By: /s/ Andrew Kessler
-----------------------------------------------
Name:
Title:
NEW YORK CITY INVESTMENT FUND, L.L.C.
By: /s/ Kathryn Wylde
-----------------------------------------------
Name: Kathryn Wylde
Title: President
23
<PAGE>
NEW YORK SMALL BUSINESS VENTURE
FUND LLC
By: /s/ Kathryn Wylde
-------------------------------------
Name: Kathryn Wylde
Title: President
/s/ Andrew Drake
-------------------------------------
Andrew Drake
/s/ Brendan Amyot
-------------------------------------
Brendan Amyot
/s/ Jamie Heller
-------------------------------------
Jamie Heller
/s/ David Kansas
-------------------------------------
David Kansas
/s/ Simon Clark
-------------------------------------
Simon Clark
/s/ Dawn Kikel
-------------------------------------
Dawn Kikel
/s/ Herbert Greenberg
-------------------------------------
Herbert Greenberg
24
<PAGE>
OAK INVESTMENT PARTNERS VIII,
LIMITED PARTNERSHIP
By: Oak Associates VIII, LLC
By: /s/ Edward F. Glassmeyer
--------------------------------------
A Member
OAK VIII AFFILIATES FUND, LIMITED
PARTNERSHIP
By: Oak VIII Affiliates, LLC
By: /s/ Edward F. Glassmeyer
--------------------------------------
A Member
OPTIMIX PRIVATE EQUITY FUND CV
LIMITED PARTNERSHIP
By: Optimix Beheer En Beleggingen NV, its
managing partner
By: /s/ W.J. Wesserling
--------------------------------------
Name: W.J. Wesserling
Title: Managing Director
JOHN GRIFFIN
By: /s/ John Griffin
--------------------------------------
Name:
Title:
25
<PAGE>
WALLER-SUTTON MEDIA PARTNERS, L.P.
By: Waller-Sutton Media, L.L.C., its general
partner
By: /s/ Andrew J. Armstrong, Jr.
------------------------------------------
Name: Andrew J. Armstrong, Jr.
Title: Vice President
/s/ Henry Kravis
------------------------------------------
Henry Kravis
SPINNAKER CLIPPER FUND, L.P.
By: /s/ William J. Haggerty
------------------------------------------
Name: William J. Haggerty
Title: Managing Director of Operations
SPINNAKER FOUNDERS FUND, L.P.
By: /s/ William J. Haggerty
------------------------------------------
Name: William J. Haggerty
Title: Managing Director of Operations
SPINNAKER OFFSHORE FOUNDERS FUND
By: /s/ William J. Haggerty
------------------------------------------
Name: William J. Haggerty
Title: Managing Director of Operations
/s/ John Connally
------------------------------------------
John Connally
26
<PAGE>
Annex 1
Addresses for Notice of Holders of Restricted Stock
Andrew Drake
c/o Cox Enterprises
1400 Lake Hearn Drive
Atlanta, GA 30319
Max Palevsky
924 Westwood Boulevard
Suite 700
Los Angeles, CA 90024
THE STREET.COM DISTRIBUTION TRUST
Arthur Cohen
165 Commonwealth Avenue
Boston, MA 02116
THE FLATIRON FUND LLC
Fred Wilson
257 Park Avenue South
New York, New York 10010
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
I. Robert Green, General Partner
c/o Chase Capital Partners
380 Madison Avenue
New York, NY 10017
THE FLATIRON FUND 1998/99, LLC
Fred Wilson
257 Park Avenue South
New York, New York 10010
SOFTBANK TECHNOLOGY ADVISORS FUND, L.P.
333 W. San Carlos Street
Suite 1225
San Jose, CA 95113
Attention: Helen R.S. Mackenzie
FLATIRON ASSOCIATES, LLC
Fred Wilson
257 Park Avenue South
New York, New York 10010
PEQUOT OFFSHORE PRIVATE EQUITY FUND, L.P.
Emile Peretz
354 Pequot Avenue
Southport, CT 06490
SOFTBANK TECHNOLOGY
VENTURES, L.P.
333 W. San Carlos Street
Suite 1225
San Jose, CA 95113
Attention: Helen R.S. Mackenzie
Martin Peretz
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
PEQUOT PRIVATE EQUITY FUND, L.P.
Emile Peretz
354 Pequot Avenue
Southport, CT 06490
James J. Cramer
c/o Cramer Berkowitz & Co.
100 Wall Street
New York, NY 10005
CRAMER PARTNERS LLC
c/o Cramer Berkowitz & Co.
100 Wall Street
New York, NY 10005
Anne Peretz
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
27
<PAGE>
Jesse Peretz
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
Evgenia Peretz
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
PERETZ PARTNERS LLC
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
TRUST B
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
TRUST C
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
TRUST FOR MARTIN PERETZ, 1976
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
Lisa Farnsworth
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
David Farnsworth
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
TRUST FOR ANNE PERETZ, 1944
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
Brendon Amyot
The Street.Com, Inc.
2 Rector Street,
14th Floor New York, NY 10006
Simon Clark
The Street.Com, Inc.
2 Rector Street, 14th Floor
New York, NY 10006
Jamie Heller
The Street.Com, Inc.
2 Rector Street, 14th Floor
New York, NY 10006
David Kansas
The Street.Com, Inc.
2 Rector Street, 14th Floor
New York, NY 10006
Dawn Kikel
The Street.Com, Inc.
2 Rector Street, 14th Floor
New York, NY 10006
Herbert Greenberg
The Street.Com, Inc.
2 Rector Street, 14th Floor
New York, NY 10006
PERETZ PARTNERS LLC
c/o Clark Estates
One Rockefeller Plaza
New York, NY 10020
ACKULA INVESTMENTS LTD.
16 Rue de la Pelixerie case Postale
3501 1211 Geneva 3
CONSTELLATION VENTURE CAPITAL, L.P.
575 Lexington Avenue
New York, New York 10022
Attn: Cliff Friedman
28
<PAGE>
CONSTELLATION VENTURE CAPITAL
OFFSHORE, L.P.
575 Lexington Avenue
New York, New York 10023
Attn: Cliff Friedman
NYC INVESTMENT FUND, L.L.C.
One Battery Park Plaza
New York, New York 10004
Attn: Kathryn Wylde, President
Andrew Kessler
261 Hamilton Avenue, Suite 212
Palo Alto, CA 94301
NEW YORK SMALL BUSINESS VENTURE FUND LLC
One Battery Park Plaza
New York, New York 10004
Attn: Kathryn Wylde, President
OAK INVESTMENT PARTNERS VIII,
LIMITED PARTNERSHIP
One Gorham Island
Westport, CT 06881
Attn: Edward Glassmeyer
OAK VIII AFFILIATES FUND,
LIMITED PARTNERSHIP
One Gorham Island
Westport, CT 06881
Attn: Edward Glassmeyer
OPTIMIX PRIVATE EQUITY FUND
CV LIMITED PARTNERSHIP
Johannes Vermeerstraat
14 Postbus 15543
1001 NA Amsterdam
Attn: Marc Wesseling
BLUE RIDGE
660 Madison Avenue
New York, New York 10021
WALLER-SUTTON MEDIA PARTNERS,
L.P.
One Rockefeller Plaza
Suite 3300
New York, NY 10020
Attn: Andy Armstrong
Henry Kravis
9 West 57 Street
New York, NY 10019
SPINNAKER CLIPPER FUND, L.P.
1875 South Grant Street, Suite 600
San Mateo, CA 94402
Attn: Matthew Cowan
SPINNAKER FOUNDERS FUND, L.P.
1875 South Grant Street, Suite 600
San Mateo, CA 94403
Attn: Matthew Cowan
SPINNAKER OFFSHORE FOUNDERS
FUND
1875 South Grant Street, Suite 600
San Mateo, CA 94404
Attn: Matthew Cowan
John Connally
Mainspring Communications
1 Main Street
Cambridge, MA 02145
29
<PAGE>
EXHIBIT 10.1
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS DOCUMENT.
CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
YAHOO! INC.
LICENSE AGREEMENT
This License Agreement (the "Agreement") is made as of this 17th day of
February, 1999 (the "Effective Date") between Yahoo! Inc., a California
corporation, with offices at 3420 Central Expressway, Suite 201, Santa Clara, CA
95051, ("Yahoo") and The Street.com, Inc., a Delaware corporation, with offices
at Two Rector Street, 14th Floor, New York, NY 10006 ("Licensor").
In consideration of the mutual promises contained herein, the parties agree as
follows:
Section 1: Definitions.
"Affiliates" shall mean any company or any other entity world-wide, including,
without limitation, corporations, partnerships, joint ventures, and Limited
Liability Companies in which Yahoo owns at least a twenty percent (20%)
ownership, equity, or financial interest.
"Click-through" shall mean a user selecting or clicking on the Licensor Content
from the Content Pages that will directly link the user to the full text of the
news story on the Licensor Site.
"Content Pages" shall mean the pages that result from current stock quote pages
of Yahoo Finance for a company after the user submits a request for "News"
relating to that company.
<PAGE>
"Intellectual Property Rights" shall mean all rights in and to trade secrets,
patents, copyrights, trademarks, know-how, as well as moral rights and similar
rights of any type under the laws of any governmental authority, domestic or
foreign.
"Licensor Brand Features" shall mean all trademarks, service marks, logos and
other distinctive brand features of Licensor that are used in or relate to the
Licensor Content, including without limitation, the trademarks, service marks
and logos described in Exhibit A.
"Licensor Content" shall mean, collectively, those headlines of newswires
collected, produced and owned by Licensor which link to certain newswires made
available on Licensor's Site and as described on Exhibit B.
"Licensor Site" shall mean Licensor's World Wide Web site currently located at
http://www.thestreet.com.
"Yahoo Brand Features" shall mean all trademarks, service marks, logos and other
distinctive brand features of Yahoo that are used in or relate to a Yahoo
Property, including, without limitation, the trademarks, service marks and logos
described in Exhibit A.
"Yahoo Finance" shall mean Yahoo's U.S. based property with information relating
to finance and investments and currently located at http://quote.yahoo.com.
"Yahoo Properties" shall mean any Yahoo branded or co-branded media properties,
including, without limitation, Internet guides, developed in whole or in part by
Yahoo or its Affiliates and distributed or made available by Yahoo or its
Affiliates.
Section 2: Licenses; Responsibilities of the Parties.
2.1 Grant of Licenses. Subject to the terms and conditions of this
Agreement, Licensor hereby grants to Yahoo, under Licensor's
Intellectual Property Rights:
(a) A non-exclusive, worldwide license to use, modify, reproduce,
distribute, display and transmit the Licensor Content in
electronic form
2
<PAGE>
on the Content Pages and in connection with other Yahoo
Properties and to permit users of the Yahoo Properties to
download and print the Licensor Content. Yahoo's license to
modify the Licensor Content shall be limited to modifying the
Licensor Content to fit the format and overall "look and feel"
of the Content Pages or Yahoo Properties.
(b) A non-exclusive, worldwide, license to use, reproduce and
display the Licensor's Brand Features: (i) in connection with
the presentation of the Licensor Content in the Yahoo
Properties; and (ii) in connection with the marketing and
promotion of the Licensor Content in connection with the
Yahoo Properties.
(c) Subject to the restrictions and obligations herein, Yahoo
shall be entitled to sublicense the rights set forth in this
Section 2.1 (i) to its Affiliates only for inclusion in Yahoo
Properties, (ii) in connection with any mirror site or
derivative site of a Yahoo Property, (iii) in connection with
any distribution arrangement concerning a Yahoo Property, and
(iv) in connection with other devices where a user can access
the internet.
(d) Yahoo agrees that any and all use of Licensor's Brand Features
by Yahoo, its Affiliates, or any other sublicensees will at
all times comply with Licensor's reasonable trademark
guidelines as attached hereto as Exhibit "D" and any updates
to such guidelines as provided by Licensor to Yahoo from time
to time.
2.2 Yahoo's Responsibilities.
(a) Yahoo will be responsible for the design, layout, posting, and
maintenance of the Content Pages. Yahoo shall give its users
the option to add the Licensor Content into the appropriate
areas of their personalized and customizable web pages in
accordance with Yahoo's service currently named "Yahoo
Finance." Licensor shall offer such users the opportunity to
register for subscription to Licensor's service on a limited
free-trial basis through a registration page on the Licensor's
Site ("Registration Page") upon such users' Click-throughs
from
3
<PAGE>
headlines of stories requiring registration on the Licensor
Site ("Licensor Premium Content"). The content, context,
images, format, layout and "look and feel" of the Registration
Page shall be controlled and designed by Licensor, subject to
Yahoo's reasonable approval, not to be unreasonably withheld
or delayed. Click-throughs from head lines of stories which
are not Licensor Premium Content shall go directly on a page
on the Licensor Site containing the full text of that story.
Yahoo shall have the sole right to sell and retain all
revenues with respect to advertising and promotions that
appear on the Yahoo Properties.
(b) Yahoo will not alter or impair any acknowledgment of copyright
or other Intellectual Property Rights of Licensor that may
appear in the Licensor Content and the Licensor Brand
Features, including all copyright, trademark and similar
notices that Licensor may reasonably request.
2.3 Licensor's Responsibilities.
(a) Licensor will provide on-going assistance to Yahoo with regard
to technical, administrative and service-oriented issues
relating to the utilization, transmission and maintenance of
the Licensor Content, as Yahoo may reasonably request.
(b) Licensor also shall provide Yahoo with reasonable prior notice
of any significant enhancements that generally affect the
appearance, updating, delivery or other elements of the
Licensor Content. Licensor will use its reasonable best
efforts to ensure that the Licensor Content is accurate,
comprehensive and updated regularly.
(c) *****
4
- ----------
***** Confidential treatment has been requested for redacted portions.
<PAGE>
(d) *****
Section 3: Compensation.
3.1 Slotting Fee. In consideration of Yahoo's performance and obligations
as set forth herein, Licensor will pay Yahoo an annual, non-refundable
slotting fee during the Term (as such term is defined in Section 6
herein) equal to *****. Such fee shall be paid to Yahoo as set forth
below with the first payment designated as a set up fee for the
design, consultation, development, implementation and placement of the
Licensor Content.
Payment Date
--------------------------------------------------------------
$***** upon execution of this Agreement
$*****/month commencing February 15, 1999 and continuing
monthly thereafter until December 15, 1999
3.2 *****
3.3 Payment Information. All slotting fee payments are due on the first day
of each calendar month. ***** Yahoo shall provide Licensor with a
Click- Through report specifying the total number of Click-throughs
recorded by Yahoo for the preceding month within 15 days of the end of
each month during the Term. ***** All payments herein are
non-refundable and non-creditable and shall be made by Licensor via
wire transfer into Yahoo's main account pursuant to the wire transfer
instructions set forth on Exhibit C.
3.4 Late Payments. Any portion of the above payments which has not been
paid to Yahoo on the dates set forth above shall bear interest at the
lesser of (i) one percent (1%) per month commencing five (5) days after
Licensor's receipt of notice of delinquency or (ii) the maximum amount
allowed by law. Notwith-
- ----------
***** Confidential treatment has been requested for redacted portions.
5
<PAGE>
standing the foregoing, any failure by Licensor to make the payments
specified in Sections 3.1 and 3.2 on the dates set forth therein shall
constitute a material breach of this Agreement.
3.5 Audit. Licensor is entitled to more than once every twelve (12) months
during the term of this Agreement on notice to the Yahoo, to audit or
have its external auditors audit the Yahoo's books and records, which
relate directly to the number of Click-throughs reported by Yahoo and
calculation of payments due to Yahoo hereunder. Any such audit will be
conducted during Yahoo's normal business hours and at Yahoo's location
where the relevant records are kept in the normal course of business
and shall be conducted to minimize any disruption to Yahoo's business
activities. In the event the audit reveals that the number of actual
Click-throughs exceeds the number reported by Yahoo, Yahoo will
immediately pay refund the difference (required payment minus actual
payment) to Licensor together with any interest accumulated at the
lesser of (i) one percent (1%) per month commencing upon the date of
Yahoo's receipt of such actual payment from Licensor or (ii) the
maximum amount allowed by law.
Section 4: Indemnification.
Licensor, at its own expense, will indemnify, defend and hold harmless Yahoo,
its Affiliates and their employees, representatives, agents and affiliates,
against any claim, suit, action or other proceeding brought against Yahoo or an
Affiliate based on or arising from a claim that the Licensor Content or any
Licensor Brand Feature infringes in any manner any Intellectual Property Right
of any third party or contains any material or information that is obscene,
defamatory, libelous, slanderous, that violates any person's right of publicity,
privacy or personality, or has otherwise resulted in any tort, injury, damage or
harm to any person; provided however, that in any such case: (x) Yahoo provides
Licensor with prompt notice of any such claim; (y) Yahoo permits Licensor to
assume and control the defense of such action, with counsel chosen by Licensor
(who shall be reasonably acceptable to Yahoo); and (z) Licensor does not enter
into any settlement or compromise of any such claim without Yahoo's prior
written consent, which consent shall not be unreasonably withheld. Licensor will
pay any and all costs, damages, and expenses, including, but not limited to,
reasonable attorneys' fees and costs awarded against or
6
<PAGE>
otherwise incurred by Yahoo or an Affiliate in connection with or arising from
any such claim, suit, action or proceeding. It is understood and agreed that
Yahoo does not intend and will not be required to edit or review for accuracy or
appropriateness any Licensor Content.
Section 5: Limitation of Liability.
EXCEPT AS PROVIDED IN SECTION 5, UNDER NO CIRCUMSTANCES SHALL LICENSOR,
LICENSOR'S LICENSORS, YAHOO, OR ANY AFFILIATE BE LIABLE TO ANOTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM
THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS.
Section 6: Term and Termination.
6.1 Initial Term and Renewals. This Agreement will become effective as of
the Effective Date and shall, unless sooner terminated as provided
below or as otherwise agreed, remain effective for an initial term of
twelve (12) months following the first date of public availability of
the Licensor Content on the Content Pages within a Yahoo Property (the
"Initial Term"). After the Initial Term, this Agreement will be
automatically renewed for successive additional one year periods
("Extension Terms"), unless otherwise terminated by either party by
giving notice to the other party not less than sixty (60) days prior to
the end of a Term. As used herein, the "Term" means the Initial Term
and any Extension Term(s).
6.2 Termination for Cause. Notwithstanding the foregoing, this Agreement
may be terminated by either party immediately upon notice if the other
party: (w) becomes insolvent; (x) files a petition in bankruptcy; (y)
makes an assignment for the benefit of its creditors; or (z) breach
any of its obligations under this Agreement in any material respect,
which breach is not remedied within thirty (30) days (ten (10) days in
the case of a failure to pay) following written notice to such party.
7
<PAGE>
6.3 Effect of Termination. Any termination pursuant to this Section 6 shall
be without any liability or obligation of the terminating party, other
than with respect to any breach of this Agreement prior to termination.
The provisions of Sections 3, 4, 5, 7, 9, and this Section 6.3 shall
survive any termination or expiration of this Agreement.
Section 7: Ownership.
7.1 By Licensor. Yahoo acknowledges and agrees that: (i) as between
Licensor on the one hand, and Yahoo and its Affiliates on the other,
Licensor owns all right, title and interest in the Licensor Content and
the Licensor Brand Features; (ii) nothing in this Agreement shall
confer in Yahoo or an Affiliate any right of ownership in the Licensor
Content or the Licensor Brand Features. No licenses are granted by
either party except for those expressly set forth in this Agreement.
7.2 By Yahoo. Licensor acknowledges and agrees that: (i) as between
Licensor on the one hand, and Yahoo and its Affiliates on the other,
Yahoo or the Affiliates own all right, title and interest in any Yahoo
Property and the Yahoo Brand Features; (ii) nothing in this Agreement
shall confer in Licensor any license or right of ownership in the Yahoo
Brand Features; and (iii) Licensor shall not now or in the future
contest the validity of the Yahoo Brand Features. No licenses are
hereby granted by Yahoo.
Section 8: Public Announcements and Co-branding Promotions.
The parties will cooperate to create any and all appropriate public
announcements relating to the relationship set forth in this Agreement. Neither
party shall make any public announcement regarding the existence or content of
this Agreement without the other party's prior written approval and consent.
Yahoo shall notify its users of the availability of Licensor Content via the
Content Pages and Yahoo Properties through text links, advertising banners and
other promotional activities ("Promotions"). The parties may agree to co-brand
such Promotions (e.g. "customize Yahoo Financial news to include headlines from
TheStreet.com"), in a manner and for a price that is mutually agreeable to the
parties.
8
<PAGE>
Section 9: Notice; Miscellaneous Provisions..
9.1 Notices. All notices, requests and other communications called for by
this agreement shall be deemed to have been given immediately if made
by telecopy or electronic mail (confirmed by concurrent written notice
sent first class U.S. mail, postage prepaid), if to Yahoo at 3420
Central Expressway, Santa Clara, CA 95051, Fax: (408) 731-3301
Attention: Vice President (e-mail: *****, with a copy to its General
Counsel *****, and if to Licensor at the physical and electronic mail
addresses set forth on the signature page of this Agreement, or to such
other addresses as either party shall specify to the other. Notice by
any other means shall be deemed made when actually received by the
party to which notice is provided.
Miscellaneous Provisions. This Agreement will bind and inure to the benefit of
each party's permitted successors and assigns. Neither party may assign this
Agreement, in whole or in part, without the other party's written consent;
provided, however, that: (i) either party may assign this Agreement without such
consent in connection with any merger, consolidation, any sale or assignment of
all or substantially all of such party's assets or any other transaction in
which more than fifty percent (50%) of such party's voting securities or
membership interests are transferred. Any attempt to assign this Agreement other
than in accordance with this provision shall be null and void. This Agreement
will be governed by and construed in accordance with the laws of the State of
California, without reference to conflicts of laws rules, and without regard to
its location of execution or performance. If any provision of this Agreement is
found invalid or unenforceable, that provision will be enforced to the maximum
extent permissible, and the other provisions of this Agreement will remain in
force. Neither this Agreement, nor any terms and conditions contained herein may
be construed as creating or constituting a partnership, joint venture or agency
relationship or any other form of legal association between the parties. No
failure of either party to exercise or enforce any of its rights under this
Agreement will act as a waiver of such rights. This Agreement and its Exhibits
are the complete and exclusive agreement between the parties with respect to the
subject matter hereof, superseding and replacing any and all prior agreements,
communications, and understandings, both written and oral, regarding such
subject matter. This Agreement may only be modified, or any rights under it
waived, by a written document executed by both parties. This Agreement may be
executed in any number of
- ----------
***** Confidential treatment has been requested for redacted portions.
9
<PAGE>
counterparts, all of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by facsimile
transmission.
10
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
YAHOO! INC. THESTREET.COM, INC.
By: /s/ Ellen Simonoff By: /s/ Brendon Amyot
------------------------------ ---------------------------------
Title: VP Business Development Title: VP General Manager - Consumer
-------------------------- ------------------------------
Address: 3420 Central Parkway Address: 2 Rector Street, 14th Floor
------------------------- ----------------------------
Santa Clara, CA 95051 NY, NY 10006
------------------------- ----------------------------
Telecopy: ***** Telecopy:
------------------------ ---------------------------
E-mail: ***** E-mail: *****
-------------------------- -----------------------------
- ----------
***** Confidential treatment has been requested for redacted portions.
11
<PAGE>
EXHIBIT A
LICENSOR BRAND FEATURES
TheStreet.com
TheStreet.com related logos
YAHOO BRAND FEATURES
Yahoo!
Yahoo related logos
12
<PAGE>
EXHIBIT B
LICENSOR CONTENT
Headlines (and related ticker symbols and URIs of full-text stories on
Licensor's own site) of stories relating to business, financial, industry and
technology news. Licensor Content shall include all TheStreet.com stories
EXCEPT those stories which are hosted on Yahoo!. The excluded content shall be:
Wrong!
View from TheStreet.com
Silicon Valley
Online Brokerage
FundWatch
The above list may be modified from time to time by the parties.
13
<PAGE>
EXHIBIT C
Wire Transfer Instructions
Yahoo's Bank Information:
Institution Name: *****
Institution Address: *****
ABA: *****
Beneficiary Name: *****
Beneficiary Account Number: *****
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EXHIBIT D
THESTREET.COM INC. - SERVICE AND TRADEMARK GUIDELINES
When used in these guidelines, for ease of reference the term trademark refers
to both trademarks and service marks.
1. TheStreet.com trademarks must be used as adjectives, not nouns
Trademarks are adjectives, and should always be used with the generic term that
they modify. For example:
CORRECT: TheStreet.com services are excellent.
INCORRECT: TheStreet.com is the ideal service for your needs.
The above is the most important rule of trademark usage. The word "service", or
similar generic language (i.e. financial information service), should
immediately follow all TheStreet.com trademarks in each piece of advertising,
promotion or other written material. On occasion, the generic term may be
omitted where the immediate context makes it clear that a generic term is
intended, such as in repetitive uses of the trademark within a single paragraph
or section, but these exceptions should be used with care. The generic term
should always be used at the beginning of a piece and at significant points
subsequently. In addition, Intuit trademarks must not be used as possessives.
(This follows from the principle that trademarks are adjectives, not nouns). For
example:
CORRECT: The quality of TheStreet.com is outstanding.
INCORRECT: TheStreet.com quality is outstanding.
2. Retain the distinctive appearance of TheStreet.com trademarks without using
specialized type or logo forms.
TheStreet.com trademarks should always be presented in a distinctive, but non-
stylized fashion. Special typefaces/fonts should not be used, and Company logos
and typefaces cannot be used. This means that the marks must appear in a regular
typeface while retaining their distinctive capitalization and/or spacing. Marks
may also appear in all upper-case letters while retaining correct spacing. For
example:
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CORRECT: TheStreet.com service
INCORRECT: TheStreet.com service
3. Use appropriate status and ownership legends with TheStreet.com trademarks.
All TheStreet.com trademarks that are not registered should appear with the
super script TM. The appropriate legend must be used each time TheStreet.com
trademark is printed. (Please contact TheStreet.com if you need information on
the registration status of a particular trademark.) In addition, all written
documents, displays or advertisements which include TheStreet.com trademark must
contain the appropriate ownership legend, ideally at the beginning of the piece.
For example:
TheStreet.com and TheStreet.com logo are service marks of
TheStreet.com, Inc.
4. Do not use TheStreet.com trademarks in company names or on direct business
source identifiers.
TheStreet.com trademarks may not be used in company names or on direct business
source identifiers like stationery, business cards, and company signs unless
specifically authorized. These items identify the name of a business and, thus,
the source of its products or services. In order to avoid any possible confusion
with regard to the source of TheStreet.com services, no use of TheStreet.com
trademarks on these identifiers is allowed unless prior written approval is
obtained. (Of course, the use of TheStreet.com trademarks in detailed brochures,
certain advertisements, presentations and the like, is permitted as long as all
of the other guidelines contained herein are followed.)
5. Only TheStreet.com may use its trade name, trademark and logo trademark. No
one except TheStreet.com may use its name, trademark or logo trademark in
connection with the sale, provision or advertisement of any product or service.
The only use of its name that is permitted (in connection with selling products
or services) is to display the ownership legend for TheStreet.com trademarks, as
shown above.
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Exhibit 10.3
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF
THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This agreement (the "Agreement"), effective as of April 16th, 1998 (the
"Effective Date"), is made and entered into by and between America Online, Inc.
("AOL"), a Delaware corporation, with its principal offices at 22000 AOL Way,
Dulles, Virginia 20166, and TheStreet.com, L.L.C. ("Interactive Content
Provider" or "ICP"), a limited liability corporation, with its principal offices
at Two Rector Street, New York, NY 10006 (each a "Party" and collectively the
"Parties").
INTRODUCTION
AOL and ICP each desires that AOL provide access to the ICP Internet
Site (as defined below) through the AOL Network (as defined below), subject to
the terms and conditions set forth in this Agreement. Defined terms used but not
defined in the body of this Agreement or in Exhibit C shall be as defined on
Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 Anchor Tenancy. Beginning on the Launch Date, ICP shall
receive anchor tenant distribution within the Personal Finance
channel (or any specific successor thereof) offered on the AOL
Service, as follows: AOL shall (a) continuously and
prominently place an agreed-upon ICP icon, symbol, name, logo
or banner (each, an "Anchor Tenant Button") on the "Active
Investor" screen (or any specific successor thereof), on which
ICP's Anchor Tenant Button shall be ***** Anchor Tenant
Buttons, and the "Investing Forums" screen (or any specific
successor thereof), on which ICP's Anchor Tenant Button shall
be ***** (based on relevant factors, e.g. ***** considered as
a whole and not individually) ***** any other anchor tenant's
***** which is continuously displayed on such screen. Such
Anchor Tenant Buttons shall each, through a uniform resource
locator ("URL"), link to the Welcome Mat on the World Wide
Web, or to some other mutually agreed-upon area(s) within the
AOL Network (i.e. in "Rainman"), (b) provide ICP with the
keywords "TheStreet" "TheStreet.com" and "TSC" which shall
link to the Welcome Mat, and (c) list the ICP Internet Site in
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AOL's "Directory of Services" "Keywords" and "Find" features.
Except to the extent expressly described herein, the exact
form, placement and nature of the Anchor Tenant Button shall
be determined by AOL in it's ***** editorial discretion.
1.1.1 AOL further agrees to ***** communicate with ICP
during the Term regarding AOL's editorial needs *****
of integrating ICP's Content into the Personal
Finance channel. Such communication may result in the
promotion of ICP from the main screen of the Personal
Finance channel. Any such promotion shall be at the
sole discretion of AOL.
1.2 Content. The ICP Internet Site shall consist of the Licensed
Content described on Exhibit A hereto. In addition, the
Original Content described on Exhibit A shall be published
within the AOL Network (i.e. in Rainman, AOL's proprietary
publishing tool). ICP shall not authorize or actively
facilitate any third party to distribute any other Content of
ICP through the AOL Network absent AOL's prior written
approval; provided, however, that AOL acknowledges and
understands that ***** without ICP's ***** and AOL agrees that
ICP ***** as a result thereof. The inclusion of any additional
Content for distribution through the AOL Network (including,
without limitation, any features, functionality or technology)
not expressly described on Exhibit A shall be subject to AOL's
prior written approval.
1.3 License. ICP hereby grants AOL a worldwide license to use,
market, store, distribute, display, communicate, perform,
transmit, and promote the ICP Internet Site and the Licensed
Content (or any portion thereof), solely for the personal use
of its AOL Members, through the AOL Network as AOL may
determine in its sole discretion, including without limitation
the right to integrate Content from the ICP Internet Site by
linking to specific areas on the ICP Internet Site, provided
that the presentation of any such Content on the AOL Network
shall conform with the specifications set forth on Exhibit D;
provided, however, *****.
1.4 Management. ICP shall, design, create, edit, manage, update,
and maintain the ICP Internet Site and the Licensed Content or
arrange for same on its behalf. Except as specifically
provided for herein, AOL shall have no obligations of any kind
with respect to the ICP Internet Site. ICP shall be
responsible for any hosting or communication costs associated
with the ICP Internet Site (including, without limitation, the
costs associated with (i) any agreed-upon direct connections
between the AOL Network and the ICP Internet Site or (ii) a
mirrored version of the ICP Internet Site, provided at the
discretion of the ICP. *****.
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1.5 Carriage Fee. ICP shall pay AOL a one-time fee of ***** which
shall be due no later than thirty (30) days after the
Effective Date.
1.6 Impressions Guarantee. AOL shall provide ICP with at least
***** Impressions (as defined below) from ICP's presence on
the AOL Network (the "Impressions Guarantee"). For the
purposes of this Agreement ***** ICP's presence on an AOL
screen shall conform to the specifications set forth on
Exhibit D (each, an "ICP Presence"), provided that only
screens that contain a link to the ICP Internet Site or a
Welcome Mat (as defined herein) will count against the
Impressions Guarantee. In the event that the Impressions
Guarantee is not met during the Term, at AOL's option either
(a) the Term shall be extended for up to ***** months without
additional carriage fees payable by ICP *****, or (b) AOL
shall provide ICP with the remain ing Impressions in the form
of advertising space within the AOL Network of comparable
value ***** to the undelivered Impressions.
2. PROMOTION
2.1 Cooperation. Each Party shall cooperate with and reasonably
assist the other Party in supplying material for marketing and
promotional activities.
2.2 Interactive Site. During the Term, ICP shall include within
each ICP Interactive Site (a) a continuous ***** promotional
button/link for AOL appearing on the first screen of the ICP
Interactive Site, (b) a prominent "Try AOL" feature where
users can obtain promotional information about the AOL Network
and/or any ***** products and services available through the
AOL Network and, at AOL's option, download or order AOL's
then-current version of client software for the America
Online(R) brand service or other AOL products, such as AOL's
"Instant Messenger(R)"; (c) ***** promotion for the keywords
associated with ICP's Internet Site; and (d)*****.
2.3 Other Media. ICP shall ***** prominently and regularly promote
AOL and the ICP Internet Site's availability through the AOL
Service in publications, programs, features or other forms of
media over which ICP exercises *****.
2.4 Keyword Promotion. In any instances when ICP makes promotional
reference to an ICP Interactive Site, including any listings
of the applicable "URL(s)" for such web site(s) (each a "Web
Reference"), *****.
2.5 Preferred Access Provider.
2.5.1 *****
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3. REPORTING
3.1 Usage and Other Data. AOL shall make available to ICP a
monthly report specify ing for the prior month aggregate usage
and Impressions with respect to ICP's presence on the AOL
Network. ICP will supply AOL with monthly reports which
reflect total daily Impressions by AOL Members to the ICP
Internet Site during the prior month and the number of and
dollar value associated with the transactions involving AOL
Members at the ICP Internet Site during the period in
question. ICP shall also provide AOL with "click-through" data
with respect to the promotions specified in Section 2.
3.2 Promotional Commitments. ICP shall provide to AOL a monthly
report documenting ICP's compliance with any promotional
commitments undertaken pursuant to this Agreement which report
shall be in the form attached as Exhibit F hereto.
3.3 Payment Schedule. Except as otherwise specified herein, each
Party agrees to pay the other Party all amounts received and
owed to such other Party as described herein on a quarterly
basis within thirty (30) days of the end of the quarter in
which such amounts were collected by such Party. The first
quarter for which payment is to be made shall (i) begin on the
first day of the month following the month of full execution
of Agreement and (ii) include the portion of the month of
execution following the Effective Date (unless the Agreement
was executed on the first day of a month, in which case the
quarter shall be deemed to begin on the first day of such
month).
4. ADVERTISING AND MERCHANDISING
4.1 Advertising Sales. Except as may be specifically provided
below, AOL owns all right, title and interest in and to the
advertising and promotional spaces within the AOL Network
(including, without limitation, advertising and promotional
spaces on any AOL forms or pages preceding or framing the ICP
Internet Site). The specific advertising inventory within any
such AOL forms or pages shall be as reasonably determined by
AOL.
4.2 Live Event Advertisements. With respect to the live event
programming provided to AOL hereunder and specified on Exhibit
A.2 (the "Live Event Programming"), AOL shall have the
exclusive right to license or sell promotions, advertisements,
links, pointers or similar services or rights in or through
the area for any Live Event Programming ("Live Event
Advertisements"). AOL shall pay ICP ***** of the
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Advertising Revenues generated by AOL or its agents with
respect to Live Event Advertisements.
4.3 Original Content Advertisements. With respect to the original
content provided to AOL hereunder and specified on Exhibit A,
(the "Original Content"), AOL hereby grants ICP the right to
license or sell promotions, advertisements, links, pointers or
similar services or rights in or through the area for any
Original Content including ***** associated with the ICP
Internet Site ("Original Content Advertisements" or "AOL
Advertisements"), subject to (i) each Original Content
Advertisement being in compliance with AOL's advertising
policies referred to herein and (ii) *****. ICP shall pay AOL
***** of the Advertising Revenues generated by ICP or its
agents with respect to Original Content Advertisements.
4.4 Advertising Policies. Any AOL Advertisements sold by ICP or
its agents shall be subject to AOL's then-standard advertising
policies, a copy of which shall be furnished to ICP *****
during the Term. In connection with the sale by ICP of any AOL
Advertisement, ICP shall, in each instance, provide AOL with a
completed standard AOL advertising registration form relating
to such AOL Advertisement. ICP shall take all steps necessary
to ensure that any AOL Advertisement sold by ICP complies with
all applicable federal, state and local laws and regulations.
To the extent ICP sells an AOL Advertisement as part of an
advertising package including multiple placement locations,
ICP shall allocate the payment for such advertising package
between or among such locations in an equitable fashion,
*****.
4.5 Interactive Commerce. Any merchandising on the ICP Internet
Site shall be subject to (i) the then-current requirements of
AOL's merchant certification program and (ii) ICP implementing
sufficient procedures to protect the security of all mer
chandising on the site (i.e., ICP shall as of the Effective
Date use 40-bit SSL technology and, if requested by AOL,
128-bit SSL).
4.5.1 Subscriptions. AOL Members shall receive a *****
discount on any subscriptions to the ICP Internet
Site during the term of this Agreement.
5. CUSTOMIZED LINKED INTERACTIVE SITE
5.1 Performance.
5.1.1 Generally. ICP shall ***** optimize the ICP Internet
Site according to AOL specifications and guidelines
(which may currently be found at key word:
"Webmaster", and/or at *****) with the objective of
ensuring that (i) the
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functionality and features within the ICP Internet Site are
optimized for the client software then in use by a majority of
AOL Members as notified to ICP by AOL and (ii) the forms used
in the ICP Internet Site are designed and populated in a
manner intended to minimize delays when AOL Members attempt to
access such forms. ICP will use reasonable commercial efforts
to ensure that the performance and availability of the ICP
Internet Site (a) is monitored on a continuous, 24/7 basis and
(b) remains competitive in all material respects with the
performance and availability of other similar sites based on
similar form technology. It shall be the responsibility of AOL
to inform ICP of the specific AOL client software version then
in use by a majority of AOL Members if and when it is
determined, in AOL's reasonable discretion, that the ICP
Internet Site is not optimized for such client software.
5.1.2 Specific.
(a) ICP shall design the ICP Internet Site to support
the Windows version of the Microsoft Internet
Explorer 3.0 browser, and make commercially
reasonable efforts to support all other AOL browsers
listed at: *****
(b) ICP shall configure the server from which it
serves the ICP Internet Site to examine the HTTP
User-Agent field in order to identify the AOL
User-Agents listed at: ***** (the "AOL User-Agents").
(c) ICP shall design its web site to support HTTP 1.0
or later protocol as defined in RFC 1945 (available
at http://ds.internic.net/rfc/rfc1945.text) and to
adhere to AOL's parameters for refreshing cached
information listed at *****.
(d) AOL reserves the right to review the ICP Internet
Site and/or have its technical personnel meet with
ICP technical personnel with respect to the ICP
Internet Site with the objective of ensuring that
such site is compatible with AOL's then-available
client and host software and the AOL Network.
5.2 Customization. ICP shall customize the ICP Internet Site for
AOL Members as follows:
(a) upon AOL's request create a customized,
co-branded home page for the AOL audience for each
area on the ICP Internet Site linked to and/or from
the AOL Network on a continuous basis (each a
"Welcome Mat"), which
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Welcome Mat(s) shall be subject to AOL approval, not
to be unreasonably withheld;
(b) ensure that AOL Members linking to the ICP
Internet Site do not receive advertisements,
promotions or links for any entity which AOL has
notified ICP, or shall subsequently notify ICP in
writing, is in competition with AOL or which AOL has
notified ICP, or shall subsequently notify ICP in
writing, is otherwise in violation of AOL's
then-standard advertising policies or exclusivities;
and
(c) provide continuous navigational ability for AOL
Members to return to an agreed-upon point on the AOL
service (for which AOL shall supply the proper
address) from the ICP Internet Site (e.g., the point
on the AOL service from which the ICP Internet Site
is linked), which, at AOL's option, may be satisfied
through the use of a hybrid browser format.
5.3 Links on ICP Internet Site. The Parties will work together on
mutually acceptable links (including links back to AOL) within
the ICP Internet Site in order to attempt to create a robust
and engaging AOL member experience. ICP shall take reasonable
efforts to encourage that AOL traffic is generally either kept
within the ICP Internet Site or channeled back into the AOL
Network. To the extent that AOL notifies ICP in writing that,
in AOL's reasonable judgment, links from such site cause an
excessive amount of AOL traffic to be diverted outside of
such site and the AOL Network in a manner that has a
detrimental effect on the traffic flow of the AOL audience,
then ICP shall promptly take reasonable steps to attempt to
reduce the number of links out of such site(s).
5.4 Hosting Capacity. ICP will provide all computer servers,
routers, switches and associated hardware in an amount
reasonably necessary to meet anticipated traffic demands,
adequate power supply (including generator back-up) and HVAC,
ade quate insurance, adequate service contracts and all
necessary equipment racks, floor space, network cabling and
power distribution to support the ICP Internet Site. AOL shall
provide ICP with reasonable, best available estimates of
anticipated traffic demands associated with the AOL Network
and ICP's performance hereunder, which ICP will rely upon in
connection with the foregoing obligation.
6. TERM AND TERMINATION.
6.1 Term. Unless earlier terminated as set forth herein, the
initial term of this Agree ment shall be one (1) year from the
Effective Date. Upon termination of this Agreement, AOL shall
have the option, for a period equal to the initial term, to
use one or more
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ICP keywords and/or text-based links from the AOL Network to
the ICP Internet Site. This Agreement may be extended by
mutual written agreement of the Parties.
6.2 Termination for Breach. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days'
written notice thereof.
6.3 Termination for Bankruptcy/Insolvency. Either Party may
terminate this Agree ment immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or
involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
7. TERMS AND CONDITIONS. To the extent not otherwise inconsistent with the
above terms and conditions of this Agreement the legal terms and
conditions set forth on Exhibit C attached hereto are hereby made a
part of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the Effective Date.
AMERICA ONLINE, INC. THESTREET.COM, L.L.C.
By: /s/ Barry Schuler By: /s/ Brendan Amyot
--------------------------------------- ----------------------------
Print Name: Barry Schuler Print Name: Brendan Amyot
--------------------------------------- -------------------------
Title: President, AOL Interactive Services Title: Chief Operating Officer
--------------------------------------- -------------------------
Date: 4/16/98 Date: April 16, 1998
--------------------------------------- -------------------------
Tax ID/EIN#:
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EXHIBIT A
*****
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EXHIBIT B
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EXHIBIT C
******
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EXHIBIT D
*****
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EXHIBIT F
*****
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Exhibit G
*****
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DEFINITIONS AND REFERENCES
*****
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[LOGO]
July 24, 1998
Mr. Brendan Amyot
Chief Operating Officer
Vice President Marketing
TheStreet.com
2 Rector Street, 14th Floor
New York, NY 10006
Dear Brendan:
I am writing to specify that, pursuant to Section 1.1 ("Launch Date") of the
Interac tive Services Agreement effective as of April 16, 1998, between
TheStreet.com, L.L.C. and America Online, Inc. (the "Agreement"), the "Launch
Date" referred to in Section 1.1 of the Agreement was July 23, 1998. We're
really excited to have you on board. Please feel free to call me at any time,
I can be reached at 703-265-1089.
Best Regards,
/s/ Alison Klein
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Alison Klein
Account Manager
America Online, Inc.
cc: Rob Krupika
Rob Shenk
David Arsenault
Dori Solomon
<PAGE>
Exhibit 10.4
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS
DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
CONTENT LICENSE AND MARKETING AGREEMENT
This Content License and Marketing Agreement ("Agreement") is made and entered
into as of the 12th day of January, 1999 (the "Effective Date"), by and
between The Street.com, Inc., with offices at Two Rector Street, 14th Floor,
New York, NY 10006 ("TheStreet.com") and E*TRADE Group, Inc., with offices at
Four Embarcadero Place, 2400 Geng Road, Palo Alto, CA 94303 ("E*TRADE").
WHEREAS, TheStreet.com is in the business of preparing and publishing
editorial, evaluation and analysis reports related to business and financial
news and information and sells subscriptions to its materials which are
available through computer, communication and network access and facilities in
the commercial marketplace through such media which includes, but is not
necessarily limited to, the Internet and WorldWide Web; and
WHEREAS, E*TRADE wishes to offer business and financial news and informational
services to its customers through its own WebSite and E*TRADE also wishes to
offer certain of its own customers the availability of subscriptions and/or
access to TheStreet.com's published materials under favorable terms and
conditions;
NOW THEREFORE, IN CONSIDERATION OF the mutual promises and covenants set forth
in this Agreement, TheStreet.com and E*TRADE hereby agree as follows:
1. Definitions
1.1 "Account Holder" refers to any E*TRADE individual user who establishes an
on-line investment account with E*TRADE.
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1.2 "Active Trader" refers to any member of the Power E*TRADE program for
Account Holders whose trading activity is greater than that of the average
Account Holder and is entitled to receive premium services or benefits from
E*TRADE, including, but not limited to, those provided under this Agreement.
1.3 "Active User" refers to any Active Trader who accesses the Premium
Licensed Content at least once during the monthly billing cycle.
1.4 "Co-branded Web Pages" refer to web pages created by TheStreet.com and
E*TRADE pursuant to this Agreement which contain the Licensed Content.
1.5 "Expired Free-Trial User" refers to those TheStreet.com users who (i) have
registered for a limited, free-trial membership to TheStreet.com which has
subsequently expired; and (ii) have not subscribed to TheStreet.com service
following such expiration.
1.6 A "frame" refers to a border superimposed or otherwise perceptible
material or information of one party which surrounds, adjoins, is commingled
or is otherwise perceivable simultaneously with the availability or
perceptibility of a page.
1.7 "Licensed Content" shall have the meaning as defined in Section 2.1 below
and include the "Premium Licensed Content" and "Free Licensed Content" as
defined Section 1.10 below.
1.8 A "link" means a perceptible or otherwise visible indication, logo, icon,
insignia, word and/or image, selected by or available to an individual on one
page of a WebSite which directs and forwards that individual's perceived or
actual connection onward to another page on the same or any other WebSite. A
link has specific uniform resource locator (URL) or Internet WebSite and page
address information (whether perceptible or not) which establishes a direct
connection to the new page, when the link is selected from another page.
1.9 A "page" on a WebSite refers to each and every individual display or image
which is accessible or made available and which can be perceived, downloaded
or printed by an individual, either directly or with the aid of a machine or
device.
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1.10 "Premium Licensed Content" means that portion of the Licensed Content
that TheStreet.com generally makes available to its customers and clients on a
paid subscription-only basis. "Free Licensed Content" means that portion of
the Licensed Content that TheStreet.com generally makes available to anyone
visiting TheStreet.com's WebSite at no charge.
1.11 "Registered Member" refers to any E*TRADE individual user, other than an
Account Holder, who registers with E*TRADE as a member to receive certain
financial information and related materials through E*TRADE's WebSite.
1.12 "Submitted Application" shall mean an application to open a standard
brokerage account with E*TRADE that is completed in all material respects in
accordance with the instructions provided by E*TRADE in the application kit
and received by E*TRADE, and where the application has originated as a direct
response from the offer to receive a free subscription to TheStreet.com.
E*TRADE shall determine which applications are submitted as a direct response
to TheStreet.com offer through a designated offer code.
1.13 "WebSite" refers to any computer and communication facilities and
resources under the control of or operated for the benefit of a party and made
available via the Internet to permitted individuals and/or access devices to
or from which information, graphic or other images, sounds, data and/or any
other digital or electronic content or materials may be perceived, accessed,
transmitted or utilized. For the avoidance of ambiguity, WebSites include one
WebSite which may be a mirror image or duplicate, in whole or in part, or even
containing modifications from an original WebSite.
2. Licensed Content
2.1 Subject to the provisions of this Agreement, TheStreet.com agrees to make
available to E*TRADE, the proprietary financial and business editorial,
evaluation and analysis reports specified in the attached Exhibit A, and
other, comparable or successor content which, during the term of this
Agreement, is made available to TheStreet.com subscribers at the same or
comparable subscription levels or categories as that which is currently in
effect and applicable to current Licensed Content, and any other materials as
may be mutually agreed upon in writing ("Licensed Content"). The parties agree
that any new categories of content, subscription levels or distribution
methods (e.g., streaming) which TheStreet.com may develop in the future shall
be subject to good faith evaluation and negotiations to include same within
the framework of this Agreement,
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if appropriate and mutually acceptable to both parties. Licensed Content shall
be made available by TheStreet.com to E*TRADE electronically or digitally in
the form of Co branded Web Pages hosted by TheStreet.com pursuant to Exhibit
B, attached hereto. At a minimum, such Co-branded Web Pages shall include
links to E*TRADE detailed quotes from all tickers referenced in the Licensed
Content and the Licensed Content shall not include any third party
advertisements or links to third party advertisements except as permitted
under Section 2.3. Each party shall commit sufficient technical resources to
deploy the-Co-branded Web Pages within one (1) month after the Effective Date.
TheStreet.com agrees to maintain the availability of Licensed Content in
accordance with the Service Level Agreement attached hereto as Exhibit C.
2.2 Subject to and in consideration of the payment terms and conditions
specified in Section 4 herein, TheStreet.com hereby grants to E*TRADE, a
nonexclusive (subject to Section 2.4), worldwide license to access, use,
reproduce (solely for the purposes and subject to this Agreement), display and
transmit the Licensed Content, solely for the purpose of enabling such
Licensed Content to be available and accessible to E*TRADE Registered Members
and Account Holders through E*TRADE's WebSite. E*TRADE agrees that the license
granted herein supersedes any license granted by TheStreet.com to E*TRADE with
respect to the Licensed Content or any other content, materials or information
licensed to E*TRADE by TheStreet.com prior to the Effective Date and that such
prior license(s) shall be considered null and void.
2.3 TheStreet.com acknowledges and agrees that E*TRADE may, and has the right
to, directly or indirectly sell, include, insert, or place advertising,
marketing, promo tional or other materials relating to or associated with
third party products, services or the like, and other E*TRADE products and
services, on the Co-branded Web Pages. *****
2.4 Except with respect to the Licensed Content and any other materials in the
form provided or licensed by TheStreet.com under this Agreement and subject to
Section 4.2 below, TheStreet.com shall have no liability, responsibility or
obligation whatsoever, regardless of the form of action or basis of the claim
(whether in contract, tort, including negligence, or otherwise), with respect
to E*TRADE's customers, potential customers or any other third parties as a
result of the acts, omissions or activities of E*TRADE or any other third
party in connection with or as a result of this Agreement.
- ----------
***** Confidential treatment has been requested for redacted portions.
4
<PAGE>
2.5 Nothing in this Agreement shall be construed to prohibit or prevent
TheStreet.com from using Licensed Content or any substantially equivalent
content in connection with its own subscription services; provided, however,
*****.
2.6 TheStreet.com retains all right, title and interest in the Licensed
Content and TheStreet.com will be solely and exclusively responsible for the
unmodified Licensed Content provided to E*TRADE hereunder. E*TRADE agrees to
be solely and exclusively responsible for any and all modifications,
restructuring, alterations, combinations, translations and/or any changes to
the Licensed Content made by E*TRADE in any manner whatsoever.
2.7 Except for the specific rights and licenses granted to E*TRADE and
applicable obligations and restrictions under the provisions of this
Agreement, nothing in this Agreement shall or shall be construed to restrict,
impair, transfer, license, convey or otherwise alter or deprive TheStreet.com
of any of its rights or proprietary interests in any intellectual property,
information, systems, software, programs, processes, technology, services,
methodologies, products or any other materials or rights, tangible or
intangible.
2.8 Except for the specific rights and license granted to TheStreet.com and
applicable obligations and restrictions under the provisions of this
Agreement, nothing in this Agreement shall or shall be construed to restrict,
impair, transfer, license, convey or otherwise alter or deprive E*TRADE of any
of its rights or proprietary interests in any intellectual property,
information, systems, software, programs, processes, technology, services,
methodologies, products or any other materials or rights, tangible or
intangible.
3. Co-Marketing Obligations
3.1 The parties shall undertake and perform the obligations for the marketing
and promotion of each other's services as described below.
3.1.1 Pursuant to Exhibit B, attached hereto, E* TRADE and
TheStreet.com shall create Co-branded Web Pages which mirror
TheStreet.com web pages and which are accessible from the E*TRADE
WebSite.
- ----------
***** Confidential treatment has been requested for redacted portions.
5
<PAGE>
3.1.2 As of the Effective Date and at mutually agreed upon intervals
thereafter, E*TRADE shall, through electronic mail, and may, through
its WebSite, notify Registered Members and visitors to the E*TRADE
WebSite of the opportunity to obtain a one-year subscription to the
Premium Licensed Content on the Co-branded Web Pages at no charge in
the event E*TRADE receives a Submitted Application from them.
3.1.3 E*TRADE and TheStreet.com agree that E*TRADE will have the
option to provide current Account Holders, Registered Members and
other visitors to the E*TRADE WebSite access to the Premium Licensed
Content on the Co-branded Web Pages at no charge in a manner to be
mutually agreed upon by the parties after the Effective Date.
3.1.4 As of the Effective Date and at mutually agreed upon intervals
thereafter, TheStreet.com shall contact Expired Free-Trial Users via
electronic mail to notify them of the opportunity to obtain a
one-year subscription to the Premium Licensed Content on the
Co-branded Web Pages at no charge in the event that E*TRADE receives
a Submitted Application from them.
3.1.5 E*TRADE and TheStreet.com shall provide all E*TRADE Active
Traders with access to the Premium Licensed Content on the Co-branded
Web Pages at no charge to such Active Traders.
3.1.6 TheStreet.com shall provide all current E*TRADE Registered
Members and Account Holders with access to the Free Licensed Content
on the Co-branded Web Pages at no charge.
3.1.7 Upon E*TRADE's written approval, TheStreet.com may, but is
under no obligation to, sell subscriptions to the Premium Licensed
Content on the Co-branded Web Pages to E*TRADE Registered Members and
Account Holders who are not Active Traders and who are not otherwise
entitled to a free subscription. Such Account Holders will receive,
at a minimum, a ***** discount off TheStreet.com's normal rates.
TheStreet.com shall not provide a greater discount for any other
comparable licensee of substantially the same content under
substantially the same terms unless TheStreet.com matches such
discount for E*TRADE. TheStreet.com shall pay E*TRADE ***** of all
subscription fees derived from such subscription sales.
- ----------
***** Confidential treatment has been requested for redacted portions.
6
<PAGE>
3.2 Subject to all the terms and conditions of this Agreement, each party (the
"Licensor") hereby grants to the other (the "Licensee") a nonexclusive,
nontransferable, non-sublicensable license to use Licensor's Licensed Marks
(defined below) on the Licensee's WebSite solely in connection with the
marketing and promotion of Licensor's WebSite and related online services. The
"Licensed Marks" shall mean solely the names, servicemarks and trademarks and
logos specified in Exhibit D hereto, subject to any usage guidelines and
notice requirements provided in writing by the Licensor; provided, however,
that the Licensor, in its sole discretion from time to time, may change the
appearance and/or style of the Licensed Marks or add or subtract from the list
in Exhibit D, provided that, unless required earlier by a court order or to
avoid potential infringement liability, Licensee shall have fourteen (14) days
to implement any such changes. Licensee hereby acknowledges and agrees that
(i) Licensor's Marks are either owned solely and exclusively by Licensor or
Licensor has the right to provide the license to Licensee set forth in this
Section, (ii) except as set forth herein, Licensee has no rights, title or
interest in or to Licensor's Marks and (iii) all use of the Licensor's Marks
by Licensee shall inure to the benefit of Licensor. Licensee agrees not to
apply for registration of the Licensor's Marks (or any mark confusingly
similar thereto) anywhere in the world. Licensee agrees that it shall not
knowingly engage, participate or otherwise become involved in any activity or
course of action that diminishes and/or tarnishes the image and/or reputation
of any of Licensor's Marks. Licensee further agrees that the use of any
Licensed Mark is subject to the approval of Licensor.
3.3 TheStreet.com, in connection with Co-branded Web Pages, may notify or
otherwise advise any party having access to Licensed Content through E*TRADE
as a result of this Agreement, that they are only permitted to make one
printed copy of the Licensed Content for individual use (or download same for
the same limited purpose) and they are not permitted to reproduce,
republish, broadcast or otherwise distribute the Licensed Content without
prior written permission of TheStreet.com and except for any payment or other
terms inconsistent with the provisions of this Agreement, are otherwise
subject to the terms and conditions of TheStreet.com subscriber or membership
agreement available for inspection on TheStreet.com site.
3.4 With the exception of requiring minimum trading activity or a Submitted
Application, E*TRADE may not charge E*TRADE Account Holders or any others any
separate fee or charge or impose additional costs or restrictions in order to
allow access or make available the Licensed Content, other than those standard
charges and
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<PAGE>
restrictions it normally charges or imposes on E*TRADE Account Holders or
others for the use of its own WebSite.
3.5 E*TRADE shall not furnish, permit or otherwise provide, make available,
link, reproduce, transmit, furnish or distribute Licensed Content itself or
through or to third parties for use on or through any other facility other
than E*TRADE, the Co-branded Web Pages or the links to TheStreet.com as
permitted hereunder.
4. Payment
4.1 Subject to the terms and conditions of this Agreement, E*TRADE agrees to
pay to TheStreet.com the following:
(a) A minimum payment of $***** per month in advance on the first day
of each month, beginning upon the launch of Co-branded Web Pages on the
E*TRADE WebSite. The $***** minimum payment shall constitute an up-front
payment for any combination of Submitted Applications at $***** each and
Active Users at either $***** each (if Active Users number ***** or fewer
during such month) or $***** each (if Active Users number greater than *****
during such month).
(b) Once the $***** minimum has been exceeded, additional payments
shall be calculated at $***** for each additional Submitted Application and
either $***** per Active User (if Active Users number ***** or fewer) or
$***** per Active User (if Active Users number greater than *****). Such
additional payments shall be due within thirty (30) days after the end of the
month in which such excess occurs.
4.2 The parties believe that the structure of the payments described in
Section 4.1 are consistent with the applicable laws and regulations governing
the activities of broker-dealers and unregistered entities. Notwithstanding
the foregoing, however, if the payments in Section 4.1 are determined to be
prohibited under those laws and regulations governing the activities of
broker-dealers, then the parties shall negotiate and agree upon a mutually
acceptable non-refundable fee structure as an alternative to the payment
described in this Section 4.1, failing which either party may terminate this
Agreement on thirty (30) days' written notice to the other party.
- ----------
***** Confidential treatment has been requested for redacted portions.
8
<PAGE>
5. Prices
5.1 Except as specifically set forth in this Agreement, each party remains
responsible for establishing its own prices and charges to customers,
subscribers or otherwise in connection with its own offerings, products and/or
services available in the commercial marketplace. Furthermore, except as
otherwise provided herein or subsequently mutually agreed upon in writing,
each party bears its own expenses and costs associated with performing its
obligations under this Agreement.
6. Right to Audit
6.1 Each party shall keep, maintain and preserve in a readily accessible place
allowing for access within twenty-four (24) hours, and for the earlier of at
least three (3) years: (i) from the date of the transactions and activities
being audited; or (ii) following termination or expiration of the term of this
Agreement or any renewal(s) thereof, accurate records relating to such party's
payment and other obligations hereunder. Such records shall be maintained as
confidential, but shall be available for inspection and audit as provided
herein. Each party shall have the right at least once per calendar year to
have an independent public accountant, reasonably acceptable to the other
party, examine such other party's relevant books, records and accounts for the
purpose of verifying the fulfillment of obligations to the other party as
required under this Agreement. Each party acknowledges and agrees that such
accountant shall not have access to the books, records, and accounts relating
to other products or services except as such books, records and accounts also
directly relate to its obligations hereunder. Each audit will be conducted at
the audited party's place of business, or other place agreed to by
TheStreet.com and E*TRADE, during the audited party's normal business hours
and conducted to minimize any disruption to the audited party's business
activities, with at least five (5) business days prior written notice to the
audited party. The auditing party shall pay the fees and expenses of the
auditor for the examination.
7. Warranties
7.1 Each party represents and warrants to the other that: (i) it has the right
to enter into this Agreement and its obligations are not in conflict with any
other of its obligations; (ii) all services will be performed in a timely,
competent and professional manner; (iii) materials, information and services
furnished and/or the use of same as permitted under this Agreement, do not
violate or inftinge the rights of any other party
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or the laws or regulations of any governmental, regulatory, or judicial
authority; (v) materials, information and services furnished and/or the use of
same as permitted under this Agreement, do not contain any libelous,
defamatory, obscene or unlawful material under the laws of the United States
in effect at the time such materials, information and/or services are produced
and provided to the other hereunder. Furthermore, TheStreet.com warrants that
it has full ownership of, all right, title and interest in and to, or all
necessary licenses to furnish, all Licensed Content as required hereunder.
TheStreet.com represents and warrants that the Co-branded Pages and the
Licensed Content are Year 2000 Compliant. For purposes of this Agreement,
"Year 2000 Compliant" shall mean that The Co-branded Pages and the Licensed
Content and the access and use thereof will not be materially affected by any
inability to, individually and in combination, completely and accurately
address, present, produce, store and calculate data involving dates before, on
or after January 1, 2000; specifically: (i) no value for current date will
cause any interruption in operation; (ii) date-based functionality will behave
consistently when dealing with dates before, on or after January 1, 2000;
(iii) use and access to the Co-branded Pages and the Licensed Content will not
produce abnormal endings or incorrect results when working with dates before,
on or after January 1, 2000; (iv) in all interfaces and data storage, the
century will be specified explicitly and will be unambiguously derived; and
(v) year 2000 will be recognized as a leap year. The foregoing representation
and warranty shall not and shall not be construed to apply to or remedy Year
2000 problems in third party interfaces, data, software, or other materials or
information which is not supplied by or within the control of TheStreet.com
and if incorrect date information is provided by the user or from any other
external product or other source, this information will be used by the
Licensed Content and Co-Branded Pages as received.
7.2 EXCEPT AS SPECIFICALLY SET FORTH ABOVE, NEITHER PARTY MAKES ANY OTHER OR
DIFFERENT REPRESENTATIONS OR WARRANTIES TO THE OTHER OR TO ANY THIRD PARTY,
WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Confidential Information
8.1 Each party agrees to regard and preserve as confidential all information
related to the business and activities of the other, its customers, clients,
suppliers and other entities with whom such other party does business, that
may be obtained from any
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<PAGE>
source or may be developed as a result of this Agreement ("Confidential
Information"). Each party agrees to hold such Confidential Information in
confidence for the other and shall not, except in furtherance of the purposes
of this Agreement, use (directly or indirectly) any such Confidential
Information for its own benefit or the benefit of any other party, nor
disclose such Confidential Information to any person, firm or enterprise,
unless authorized by the other party in writing, and even then, to limit
access to and disclosure of such Confidential Information to its employees on
a "need to know" basis only.
8.2 Information shall not be considered Confidential Information to the extent
it is: (i) already known to the receiving party free of any restriction at the
time it is obtained; (ii) subsequently learned from an independent third party
free of any restriction and without breach of this or any other Agreement;
(iii) is or becomes publicly available through no wrongful act or (iv) is
independently developed by one party without reference to any Confidential
Information of the other. Disclosure of Confidential Information pursuant to
the compulsion of proper judicial or other legal process is permitted;
provided, however, that the parties notify each other and use all available
legal means to protect and limit such disclosure to only those persons with a
"need to know" for purposes of such proceedings.
9. Intellectual Property Indemnification
9.1 Each party agrees to defend and/or handle at its own cost and expense any
claim or action against the other by a third party for actual or alleged
infringement of any intellectual or industrial property right, including,
without limitation, trademarks, service marks, patents, copyrights or the
misappropriation of trade secrets or other proprietary rights, or for personal
injury, defamation, slander or libel, based upon any materials or services as
furnished by such party or the possession and/or use thereof by the other
party. Each party agrees to promptly notify the other party of any such claim
or action and provides the indemnifying party with reasonable assistance in
the defense thereof. The party responsible for defense of any such claim or
action further agrees to indemnify and hold the other party harmless from and
against any and all liabilities, losses, damages, costs and expenses
(including reasonable attorneys' fees) associated with any such claim or
action and shall have the sole right to conduct the defense of any such claim
or action and all negotiations for its settlement or compromise, unless
otherwise mutually agreed to in writing. Neither party is authorized to agree
to any
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<PAGE>
settlement, compromise or the like which would require that the other make any
payment or bear other obligations without prior written approval of the other
party.
9.2 Without limiting Section 9.1 above, E*TRADE agrees to defend and/or handle
at its own cost and expense any claim or action against TheStreet.com based
upon any alterations, modifications or changes made by E*TRADE to the Licensed
Content, any frames, links, or any other material or information added by
E*TRADE that is displayed, perceived or associated with the Licensed Content
as permitted hereunder, including, without limitation, any advertising,
promotional or other materials hereunder; provided that TheStreet.com provides
prompt notice of any such claim or action and provides E*TRADE with reasonable
assistance in the defense thereof. E*TRADE further agrees to indemnify and
hold TheStreet.com harmless from and against any and all liabilities, losses,
damages, costs and expenses (including reasonable attorneys' fees) associated
with any such claim or action and shall have the sole right to conduct the
defense of any such claim or action and all negotiations for its settlement or
compro mise, unless otherwise mutually agreed to in writing.
10. General
10.1 Term: This Agreement shall commence as of the Effective Date and shall
continue in full force and effect for an initial term of one (1) year. E*TRADE
reserves the right to terminate this Agreement without cause at any time
during the initial term of this Agreement upon sixty (60) days written notice.
Thirty (30) days prior to the expiration of the initial one (1) year term, the
parties shall agree whether or not to renew this Agreement. If the parties
agree to renew, this Agreement shall continue thereafter on a month to month
basis unless otherwise terminated upon at least thirty (30) days written
notice to the other. Termination of this Agreement shall not affect any
rights, obligations or interests arising prior to the effective date of
termination and which, to give effect to their meaning, must continue in
accordance with their terms.
10.2 Material Breach: If there is any material breach of this Agreement by one
party, the other party may (reserving cumulatively all other remedies and
rights under this Agreement and in law and in equity) terminate this
Agreement, in whole or in part, by giving thirty (30) days' written notice;
provided, however, that such termination shall not be effective if the breach
has been cured prior to the expiration of said thirty (30) days.
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<PAGE>
10.3 Insolvency: Either party may immediately terminate this Agreement in the
event the other party becomes bankrupt or insolvent, within the meaning of the
United States Bankruptcy Code or any substantial and relevant portion of its
assets are included in any arrangement with its creditors, an order to windup
or submission to control by a receiver, assignee or trustee for the purpose of
preserving the assets, whether by the voluntary act of the affected party or
otherwise.
10.4 Limitation of Liability: IN NO EVENT WILL EITHER PARTY BE LIABLE, TO THE
OTHER OR TO ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING
OUT OF THIS AGREE MENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE
CLAIM OR WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
10.5 Excusable Delay: Neither party will be liable to the other for any delay
or failure to perform due to causes beyond its control and without its fault
or negligence.
10.6 Assignment: Except in connection with a merger, sale, transfer,
conveyance, acquisition or other corporate reorganization or change in control
or ownership relating to all or any material portion of its stock, assets,
operations or business, neither party may assign, transfer or subcontract this
Agreement and/or any rights and/or obligations hereunder, without the written
consent of the other and any attempt to do so shall be void.
10.7 Waiver: The failure of either party at any time to enforce any right or
remedy available to it under this Agreement with respect to any breach or
failure by the other party shall not be construed to be a waiver of such right
or remedy with respect to any other breach or failure by the other party.
10.8 Severability: If any provision of this Agreement shall be held illegal,
invalid or unenforceable, in whole or in part, such provision shall be
modified to the minimum extent necessary to make it legal, valid and
enforceable, and the legality, validity and enforceability of all other
provisions of this Agreement shall not be affected thereby.
10.9 Survival: The provisions of Sections 6, 7, 8, 9 and 10 and the last three
sentences of Section 3.2 shall survive the termination of this Agreement for
whatever reason, and,
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in addition, the obligations of the parties under this Agreement that by their
nature continue beyond the expiration of this Agreement shall survive any
termination or cancellation of the Agreement.
10.10 Notices: Unless otherwise specified all notices shall be in writing and
delivered personally, mailed, first class mail, postage prepaid, or delivered
by confirmed electronic or digital means, to the addresses set forth at the
beginning of this Agreement and to the attention of the undersigned. Either
party may change the addresses or addressees for notice by giving notice to
the other. All notices shall be deemed given on the date personally delivered,
when placed in the mail as specified or when electronic or digital
confirmation is received.
10.11 Advertising: The parties agree to use reasonable efforts to mutually
agree on and issue a press release within five (5) days of the Effective Date
of this Agreement. All press releases, promotions and advertisements with
respect to E*TRADE and TheStreet.com and the subject matter of this Agreement
shall be subject to mutual prior written approval in advance of the first
release or use thereof. Except as specifically set forth in this Agreement,
neither party shall use the name, service or trademarks, or refer to the
other, its products and/or services in any advertising, publicity releases or
marketing communication, without prior written approval of such other party.
10.12 Independent Contractors: Each party is acting as an independent
contractor. Neither party's personnel are employees or agents of the other
party for federal, state or other taxes or any other purposes whatsoever, and
are not entitled to compensation, employee benefits or other incidents of
employment from any of the other parties. Each party assumes sole and full
responsibility for the acts and omissions of its own employees,
representatives and agents. Personnel of one party have no authority to make
commitments or enter into contracts on behalf of, bind or otherwise obligate
any other party in any manner whatsoever. Except for the specific obligations
set forth in this Agreement, nothing hereunder shall be deemed to constitute,
create, give effect to or otherwise recognize a joint venture, partnership or
business entity of any kind, nor shall anything in this Agreement be deemed to
constitute any party the agent or authorized representative of the other.
Except for payments mutually agreed upon and specifically described herein or
otherwise mutually agreed upon in writing, nothing shall be construed as
providing for the sharing of profits or losses arising out of the efforts of
either or both of the parties.
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10.13 Governing Law & Interpretation: This Agreement shall be construed and
enforced under the substantive laws of the State of New York, without regard
to its conflict of laws provisions. Headings are solely for reference and
shall not affect the meaning of any terms. If any part of this Agreement is
held invalid, illegal or unenforceable, the remaining provisions will be
unimpaired. No modification, course of conduct, amendment, supplement to or
waiver of this Agreement or any provisions hereof shall be binding upon the
parties unless made in writing and duly signed by both parties. In any action
to enforce this Agreement, the prevailing party will be entitled to recover
costs and reasonable attorneys' fees.
10.14 Entire Agreement: The Exhibits, materials, information and documents
attached, referred to or specified in this Agreement are incorporated by
reference and constitute a part of this Agreement as if fully set forth
herein. This constitutes the entire agreement between the parties and
supersedes any prior or inconsistent agreements, negotiations, representations
and promises, written or oral, regarding the subject matter. Except as
otherwise expressly provided herein, any provision of this Agreement may be
amended or modified only with the written consent of both parties.
10.15 Counterparts: This Agreement may be executed in counterparts, each of
which shall be deemed an original but both of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
The Street.com, Inc. E*Trade Group, Inc.
By: /s/ Brendan Amyot By: /s/ Jerry Gramaglia
-------------------------------- -----------------------
Name: Brendan Amyot Name: Jerry Gramaglia
[Type or Print] [Type or Print]
-------------------------------- -----------------------
Title: VP General Manager- Consumer Title: SVP; Marketing
-------------------------------- -----------------------
Date: 1/12/99 Date: 1/12/99
-------------------------------- -----------------------
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EXHIBIT A
Licensed Content
Licensed Content hereunder shall consist of the following information and
materials of market commentary and editorial content:
1. Markets commentary:
"Wake-Up Call"
"Midday Musings"
"Market Roundup"
"Evening Update"
"Silicon Saturday"
"Sunday's Little Letters, Big Ideas"
"The Coming Week"
"Bond Focus"
"Euro Markets"
"Market Update"
"Euro Vision"
"Best of TSC"
"Special Features"
2. Companies:
"Top Stories"
"Silicon Valley"
"Options Buzz"
"Online Trading"
"Stock Mart"
"Articles Elsewhere"
"Latin Loot"
"The Ax"
"Short Stories"
"The Ball Game"
"Moscow Journal"
"Mall Rat"
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"Wall Street Whistleblower"
3. Funds:
"Fund Watch"
"Under the Hood"
"The Buysider"
"Syre & Bailey"
"TSC Fund Forum"
"TSC Tax Forum"
"Looking Out for the Shareholder"
"Game Plan"
"TSC 10"
"Ahead of the Pack"
"Latest Laggard"
4. Commentary/Columns:
"Editor's Letter"
"Wrong"
"Herb on TheStreet"
"Tech Savvy"
"The Invisible Mouth"
"Technician's Take"
"Wing Tips"
"Jim Griffin"
"Marc Chandler"
"Andy Kessler"
"The Chartist"
"Building Blocks"
"Eye to the Keyhole"
"Power Lines"
"Noglows on the Net"
"MonEmailbag"
"Investors' Bookshelf"
"Drinks & Diversions"
"Fundamental Questions"
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"Greed & Fear"
"Sports Scoop"
"View from the North"
"Silicon Babylon"
"Easy Money"
"How We Did"
"Special Features"
5. Educational:
"TSC Schoolhouse
"TSC Glossary"
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EXHIBIT B
Implementation Specifications
Overview
TheStreet.com will develop a Co-branded mirror site of their full subscription
website, made available exclusively to E*TRADE visitors, members, and
customers. E*TRADE users will have access to the Co-branded site in five
different ways:
<TABLE>
<CAPTION>
Type of Access Content Provided Eligible Users
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1) Power E*TRADE - unlimited access o Premium Licensed Content o Power E*TRADE users (Active Traders)
2) One-year free subscription o Premium Licensed Content o E*TRADE visitors and members who convert to
customers as a direct result of the offer
o TSC expired free-trial users who become
E*TRADE customers as a direct result of the
offer
3) Standard E*TRADE member and cus- o Free Licensed Content (with link to o E*TRADE members
tomer access discounted subscription sign-up) o Non-Power E*TRADE and non-1-year-free-
subscription customers
4) E*TRADE visitors o Free Licensed Content (without link o E*TRADE visitors (non-members and
to discounted subscription sign-up) non-customers)
5) Free trial (mechanics tbd;
either 30 days free to users who o Premium Licensed Content o E*TRADE members
request it, or two weeks free
to everyone every 60-90 days) o Non-Power E*TRADE and non-1-year-free-
subscription customers
</TABLE>
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Accessing TheStreet.com content
- -------------------------------
o Power E* TRADE users will launch the TSC/ET Co-branded site from a link
on the Power E*TRADE home page; the site will launch in a spawned browser
window
o Visitors, members, and customers (including Power E*TRADE customers) will
access TSC/ET Co-branded site from a link on the Portfolio & Markets
page, receiving either Free or Premium Licensed Content, depending on
their level of access
o Visitors, members, and customers will also be able to access a marketing
jump page (describing TheStreet.com offer, linking to an E*TRADE online
application, and linking to the Co-branded site) from site banners and a
link from the E*TRADE home page
Customer experience
- --------------------
o Should be a seamless login experience for users; they should not have to
provide any information to get access to TheStreet (unless they are
paying for a subscription, in which case they go through the normal TSC
subscription process)
o *****
o Visitors, members, and customers receiving access to the Free Licensed
Content should get a marketing upsell page when they attempt to access a
Premium feature (e.g., If you open a new E*TRADE account, get free access
for a year . . . . if you're a current customer, open another account,
join Power E*TRADE, or click here to subscribe at an E*TRADE discounted
rate . . . . if you're a customer who should be getting access to premium
features, please log on) with links to the appropriate areas on
TheStreet.com's site (for subscriptions) and E*TRADE (for new account
sign-ups and customer log on)
o Members and customers should have a link to a page for discounted
subscription sip-ups; visitors should not be given this link
o At the end of a user's one-year free subscription, Power E*TRADE access,
or free trial, users should receive a one-time marketing page (when they
try to access the Co-branded site the very next time), informing them
that they are now only
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20
<PAGE>
eligible for the Free content, but that they can continue receiving the
Premium content if they open an account, subscribe, or join Power E*TRADE
o TheStreet.com has a daily email bulletin service; default for receiving
these bulletins should be off, unless mem bers/customers explicitly ask
to receive the bulletins (in which case the bulletins must be stripped of
competitor references and links)
o Clicking on a symbol in TheStreet's content should refresh the E*TRADE
browser window with a quote of the selected security
Account conversions
- -------------------
o Visitors, members, and customers should have a link on the Co-branded
site and on the Premium feature marketing upsell page to another page
describing TheStreet.com 1-year subscription offer, and from there back
to E*TRADE to apply for a new account (which passes a source code,
indicating their response to TheStreet.com offer)
o Online application and Request-by-mail form must allow customers to input
TheStreet.com source code, and Customer Service/Softbank must be prepared
to handle telephone requests for TheStreet.com offer using the same
source code
o Marketing jump page (accessed from the E*TRADE home page or special offer
banner ads) should provide a link to the E*TRADE online application,
passing TheStreet.com source code
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<PAGE>
EXHIBIT C
Service Level Agreement
I. Performance/Scale
A. TheStreet.com product performance/scale
1. TheStreet.com will launch a production-quality,
co-branded mirror site of the normal subscription
site for E*TRADE users (visitors, Registered
Members, and Account Holders) on or before market
open on March lst.
2. TheStreet.com will support ***** simultaneous
E*TRADE users with the service levels outlined in
this SLA, a number no more than ***** of
TheStreet.com's total system capacity.
B. System performance metrics to be measured by E*TRADE
1. TheStreet.com servers will average less than 3
seconds response time for 90% of requests every
calendar month. This measures server response time
only, not network transmission time. Response time is
measured according to the definition provided by
Accrue's reporting software, that is the amount of
time elapsed between the server's receipt of the
request and the beginning of the transmission of that
response.
2. TheStreet.com servers will average 99.9% up time
every calendar month. This would be exclusive of
regularly scheduled maintenance and causes outside
the control of TheStreet.com (e.g., force majeure
events). E*TRADE will be given 48 hours notice of any
scheduled maintenance that affects the performance of
TheStreet.com services with respect to E*TRADE users.
Regularly scheduled maintenance will be scheduled to
minimize interruption or disruption to services to
E*TRADE users unless
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22
<PAGE>
commercially impractical. There will be no
scheduled mainte nance during market (NYSE - EST or
EDST) hours.
3. TheStreetcom will post an online error message,
pre-approved by E*TRADE in the event of a system
outage within 2 minutes of TheStreet.com being
aware of such outage.
C. TheStreet.com customer service telephone metrics
1. Using a three-week trailing average, 95% of all
calls from E*TRADE Registered Members and Account
Holders to TheStreet.com will be answered within 30
seconds.
2. Using a three week trailing average, there should be
no greater than a 10% hourly abandonment rate for
E*TRADE Registered Members and Account Holders.
II. Monitoring/Reporting
A. System performance monitoring (TheStreet.com)
TheStreet.com will provide monthly reporting which details the
following details per period as it relates to E*TRADE users:
o Average response time
o Actual daily response time detail
o Average server up time
o Actual daily server up time detail
o Number of total monthly page views
o Number of total monthly unique users
This information will be e-mailed to the appropriate contact within
E*TRADE (e-mail address TBD and will be provided to TheStreet.com)
within 5 business days after the first working day of each month for
the previous month's reports. Alternatively, TheStreet.com can post
the above reports on a mutually-agreed upon secure web site for
review by TheStreet.com and E*TRADE.
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<PAGE>
B. Customer service telephone monitoring
1. E*TRADE representatives may monitor calls to
TheStreet.com every two weeks, or more often if
deemed necessary to enhance service quality and shall
bear all costs and expenses related thereto.
2. E*TRADE may conduct unscheduled test calls.
3. TheStreet.com will provide the following reports
monthly as it relates to E*TRADE Registered Members
and Account Holders (following the same schedule as
detailed in section A):
o Daily average response time
o Daily average rep talk time
o Daily call total
o Daily average abandonment rate
III. Escalation Procedures
1. In all cases of service outage greater than 2
minutes of which TheStreet.com is aware,
TheStreet.com must notify E*TRADE via the following
email addresses:
Name Email
E*TRADE operators [email protected]
E*TRADE customer service [email protected]
Brent Blackaby *****
2. When TheStreet.com notifies E*TRADE of a service
outage, TheStreet.com will provide, to the extent
known by TheStreet.com at that time,:
o Explanation of the outage
o ETA for service restoral
3. TheStreet.com will continue to notify E*TRADE with
updated status for the duration of the outage.
4. TheStreet.com will provide a post-incident summary.
This summary will include:
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<PAGE>
o Cause of the problem
o Method used to correct the problem
o Measures TheStreet.com will take to prevent further
occurrences
5. E*TRADE / TheStreet.com contact and escalation list
o E*TRADE and TheStreet.com will respond in a
synchronous fashion (e.g., a phone conversation) to
escalated issues within one hour of each escalation
o E*TRADE and TheStreet.com will each start with
#1 contact and move up from there until
synchronous communication can be established
E*TRADE business contacts
1) ***** Product marketing manager
Email: *****
Work phone: *****
Home phone: *****
2) ***** Group product marketing manager
Email: *****
Work phone: *****
Cell phone: *****
Home phone *****
3) ***** Director of product marketing
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
E*Trade technical contacts
1) ***** Technical lead
Email: *****
Work phone: *****
Home phone:
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<PAGE>
2) ***** Manager -Product development
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
3) ***** VP- Product development
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
TheStreet.com business contacts
1) ***** Marketing Manager
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
2) ***** Circulation Director
Email: *****
Work phone: *****
Cell phone:
Home phone: *****
3) ***** VP. GM Consumer Marketing
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
TheStreet.com technical contacts
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<PAGE>
1) ***** Dir. of Content Management
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
2) ***** Dir. of Commerce Technology
Email: *****
Work phone: *****
Cell phone:
Home phone: *****
3) ***** VP, Chief Technology Officer
Email: *****
Work phone: *****
Cell phone: *****
Home phone: *****
IV. Business Resumption
1. TheStreet.com must maintain the ability to switch processing
from the primary server to a hot backup server within 10
minutes. Reasonable periodic testing of this procedure, no
more frequently than twice annually, will be conducted as
requested by E*TRADE on a designated weekend by both
TheStreet.com and E*TRADE personnel.
2. Any modifications and/or network configuration changes
(including systems maintenance) as well as upgrades and
removal of devices that may adversely impact the levels of
service to E*TRADE users need to be advised of before they
occur by designated/qualified personnel.
V. Product Maintenance
1. TheStreet.com shall provide ongoing software maintenance of
TheStreet.com services emanating from the Co-Branded mirror
site for Account Holders, including but not limited to the
following:
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<PAGE>
o Use all reasonable commercial efforts to fix
catastrophic ("Level I") bugs within 24 hours;
Level I bugs are defined as bugs that prevent
subscribers from using the product or accessing key
data in the product.
o Use all reasonable commercial efforts to fix
non-catastrophic ("Level 2") bugs within 7 business
days; Level 2 bugs are defined as bugs that prevent
TheStreetcom services from running as described in
the product documentation.
o Evaluate and consider deployment or implementation
of en hancements requested by E*TRADE; a
enhancement is defined as an important change to
the UI, underlying code, or server technology
which, while not a bug fix, will significantly
improve usability, connection speed, processing
speed, branding, or data accuracy
o Deploy non-high priority enhancements as mutually
agreed upon on a case-by case basis; a non-high
priority enhancement is one which improves the
performance of the product but is prioritized lower
than Level 1 & 2 bugs as well as high priority
enhance ments
o TheStreet.com shall notify E*TRADE in writing of
any material changes related to the Licensed
Content provided on the Co-Branded mirror site for
E*TRADE users, at least one week before going into
production.
VI. Revenue Impact Recoupment
1. In the event that TheStreet.com fails to meet any of the
performance objectives outlined in this SLA on more than
***** within any 30-day period, E*TRADE will notify
TheStreet.com detailing and describing such *****, and
E*TRADE shall be permitted to pay TheStreet.com an amount
equal to only ***** of the monthly compensation specified in
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28
<PAGE>
Section 4.1 of the Agreement during the month in which such
breach of the SLA occurred.
29
<PAGE>
EXHIBIT D
LICENSED MARKS
Marks licensed by E*TRADE to TheStreet.com Marks licensed by TheStreet.com
to E*TRADE
30
<PAGE>
EXHIBIT 10.7
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS DOCUMENT.
CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
YAHOO! INC.
CONTENT LICENSE AGREEMENT
THIS CONTENT LICENSE AGREEMENT (the "Agreement") is made as of this 1st
day of January, 1998 (the "Effective Date") between YAHOO!, INC., a California
corporation, with offices at 3400 Central Expressway, Suite 201, Santa Clara, CA
95051, ("YAHOO") and TheStreet.com, L.L.C., ("Licensor"), a Delaware limited
liability company, with offices at Two Rector Street, 14th Floor, New York, NY
10006.
In consideration of the mutual promises contained herein, the parties agree as
follows:
SECTION 1: DEFINITIONS
Unless otherwise specified, capitalized terms used in this Agreement
shall have the meanings attributed to them in Exhibit A hereto.
SECTION 2: GRANT OF LICENSES
2.1 Grant of Licenses. Subject to the terms and conditions of this Agreement,
Licensor hereby grants to Yahoo, under Licensor's Intellectual Property
Rights:
(a) A non-exclusive, worldwide license to use, modify, reproduce, distribute,
display and transmit the Licensor Content in electronic form in
connection with Yahoo Properties via the Internet, and to permit users of
the Yahoo Properties to download and print the Licensor Content for
personal use. Yahoo's license to modify the Licensor content shall be
limited to modifying the Licensor Content to fit the format and look and
feel of the Yahoo Property.
(b) A non-exclusive, worldwide, fully paid license to use, reproduce and
display the Licensor's Brand Features: (i) in connection with the
presentation of the Licensor Content on the Content Pages in the Yahoo
Properties; and (ii) in connection with the marketing and promotion of
the Yahoo Properties.
<PAGE>
(c) Subject to the restrictions and obligations herein, Yahoo shall be
entitled to sublicense the rights set forth in this Section 2.1 (1) to
its Affiliates only for inclusion in Yahoo Proper ties, and (2) in
connection with any mirror site, derivative site, or distribution
arrangement concerning a Yahoo Property.
SECTION 3: DELIVERY OF LICENSOR CONTENT; ADVERTISING REVENUE
3.1 Yahoo's Responsibilities. In addition to any responsibilities
that may be set forth in Exhibit C, Yahoo will be responsible
for the design, layout, posting, and maintenance of the
Content Pages. In no event is Yahoo under any obligation,
express or implied, to post or otherwise include any of the
Licensor Content in any Yahoo Property, including without
limitation, in any Content Pages.
3.2 Licensor Assistance. In addition to any responsibilities that
may be set forth in Exhibit C, Licensor will provide on-going
assistance to Yahoo with regard to technical, administrative
and service-oriented issues relating to the utilization,
transmission and maintenance of the Licensor Content, as Yahoo
may reasonably request. Licensor will use its reasonable best
efforts to ensure that the Licensor Content is accurate,
comprehensive and updated regularly as set forth in Exhibit C.
3.3 Advertising Rights. *****
3.4 Notices. Yahoo will not alter or impair any acknowledgment of
copyright or other Intellectual Property Rights of Licensor
that may appear in the Licensor Content and the Licensor Brand
Features, including all copyright, trademark and similar
notices that Licensor may reasonably request.
3.5 Links. The parties will maintain the hypertext links specified
in Exhibit D.
SECTION 4: DELIVERY OF LICENSOR CONTENT
During the term of this Agreement, Licensor shall deliver updates of
the Licensor Content to Yahoo in accordance with the Delivery Specifications set
forth in Exhibit C. Licensor also shall provide Yahoo with reasonable prior
notice of any significant Enhancements that generally affect the appearance,
updating, delivery or other elements of the Licensor Content, and shall make
such Enhancements available to Yahoo upon commercially reasonable terms.
SECTION 5: INDEMNIFICATION
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2
<PAGE>
Licensor, at its own expense, will indemnify, defend and hold harmless
Yahoo, its Affiliates and their employees, representatives, agents and
affiliates, against any claim, suit, action, or other proceeding brought against
Yahoo or an Affiliate based on or arising from a claim that the Licensor Content
as delivered to Yahoo or any Licensor Brand Feature infringes in any manner any
Intellectual Property Right of any third party or contains any material or
information that is obscene, defamatory, libelous, slanderous, that violates any
person's right of publicity, privacy or personality, or has otherwise resulted
in any tort, injury, damage or harm to any person; provided, however, that in
any such case: (x) Yahoo provides Licensor with prompt notice of any such claim;
(y) Yahoo permits Licensor to assume and control the defense of such action,
with counsel chosen by Licensor (who shall be reasonably acceptable to Yahoo);
and (z) Licensor does not enter into any settlement or compromise of any such
claim without Yahoo's prior written consent, which consent shall not be
unreasonably withheld. Licensor will pay any and all costs, damages, and
expenses, including, but not limited to, reasonable attorneys' fees and costs
awarded against or otherwise incurred by Yahoo or an Affiliate in connection
with or arising from any such claim, suit, action or proceeding. It is
understood and agreed that Yahoo does not intend and will not be required to
edit or review for accuracy or appropriateness any Licensor Content.
SECTION 6: LIMITATION OF LIABILITY / WARRANTY
EXCEPT AS PROVIDED IN SECTION 5, UNDER NO CIRCUMSTANCES SHALL LICENSOR,
YAHOO, OR ANY AFFILIATE BE LIABLE TO EACH OTHER OR ANOTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS
AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS.
SECTION 7: TERM AND TERMINATION
7.1 Initial Term and Renewals. This Agreement will become
effective as of the Effective Date and shall, unless sooner
terminated as provided below or as otherwise agreed, remain
effective for an initial term of twelve (12) months following
the first date of public availability of the Licensor Content
on a Content Page within a Yahoo Property (the "Initial
Term"). After the Initial Term, this Agreement will be
automatically renewed for successive additional one year
periods ("Extension Terms"). This Agreement may be terminated
by either party at any time by giving notice to the other
party of not less than sixty (60) days prior to the end of a
Term. As used herein, the "Term" means the Initial Term and
any Extension Term(s).
3
<PAGE>
7.2 Termination for Cause. Notwithstanding the foregoing, this
Agreement may be terminated by either party immediately upon
notice if the other party: (w) be comes insolvent; (x) files a
petition in bankruptcy; (y) makes an assignment for the
benefit of its creditors; or (z) breaches any of its
obligations under this Agreement in any material respect,
which breach is not remedied within thirty (30) days following
written notice to such party.
7.3 Effect of Termination. Any termination pursuant to this
Section 7 shall be without any liability or obligation of the
terminating party, other than with respect to any breach of
this Agreement prior to termination. The provisions of
Sections 5, 6, 7, 8, 9, 10, and this Section 7.3 shall survive
any termination or expiration of this Agreement.
SECTION 8: OWNERSHIP
8.1 By Licensor. Yahoo acknowledges and agrees that: (i) as
between Licensor on the one hand, and Yahoo and its Affiliates
on the other, Licensor owns all right, title and interest in
the Licensor Content and the Licensor Brand Features; (ii)
nothing in this Agreement shall confer in Yahoo or an
Affiliate any right of ownership in the Licensor Content or
the Licensor Brand Features; and (iii) neither Yahoo or its
Affiliates shall now or in the future contest the validity of
the Licensor Brand Features. No licenses are granted by either
party except for those expressly set forth in this Agreement.
8.2 By Yahoo. Licensor acknowledges and agrees that: (i) as
between Licensor on the one hand, and Yahoo and its Affiliates
on the other, Yahoo or the Affiliates own all right, title and
interest in any Yahoo Property and the Yahoo Brand Features;
(ii) nothing in this Agreement shall confer in Licensor any
license or right of ownership in the Yahoo Brand Features; and
(iii) Licensor shall not now or in the future contest the
validity of the Yahoo Brand Features. No licenses are hereby
granted by Yahoo. Yahoo or its Affiliates shall own all
derivative works created by Yahoo from the Licensor Content,
including the Content Pages, pursuant to this Agreement, to
the extent such is separable from the Licensor Content.
SECTION 9: PUBLIC ANNOUNCEMENTS
The parties will cooperate to create any and all appropriate public
announcements relating to the relationship set forth in this Agreement. Neither
party shall make any public announce-
4
<PAGE>
ment regarding the existence or content of this Agreement without the other
party's prior written approval and consent.
SECTION 10: NOTICE, MISCELLANEOUS PROVISIONS
10.1 Notices. All notices, requests and other communications called
for by this agreement shall be deemed to have been given
immediately if made by telecopy or electronic mail (confirmed
by concurrent written notice sent first class U.S. mail,
postage prepaid), if to Yahoo at 3400 Central Expressway,
Suite 201, Santa Clara, CA 95051, Fax: (408) 731-3301
Attention: Vice President (e-mail: ***** ), with a copy to its
General Counsel (e-mail: ***** ), and if to Licensor at the
physical and electronic mail addresses set forth on the
signature page of this Agreement, or to such other addresses
as either party shall specify to the other. Notice by any
other means shall be deemed made when actually received by the
party to which notice is provided.
10.2 Miscellaneous Provisions. This Agreement will bind and inure
to the benefit of each party's permitted successors and
assigns. Neither party may assign this Agreement, in whole or
in part, without the other party's written consent; provided,
however, that: (i) either party may assign this Agreement
without such consent in connection with any merger,
consolidation, any sale of all or substantially all of such
party's assets or any other transaction in which more than
fifty percent (50%) of such party's voting securities are
transferred. Any attempt to assign this Agreement other than
in accordance with this provision shall be null and void. This
Agreement will be governed by and construed in accordance with
the laws of the State of California, without reference to
conflicts of laws rules, and without regard to its location of
execution or performance. If any provision of this Agreement
is found invalid or unenforceable, that provision will be
enforced to the maximum extent permissible, and the other
provisions of this Agreement will remain in force. Neither
this Agreement, nor any terms and conditions contained herein
may be construed as creating or constituting a partnership,
joint venture or agency relationship between the parties. No
failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such
rights. This Agreement and its exhibits are the complete and
exclusive agreement between the parties with respect to the
subject matter hereof, superseding and replacing any and all
prior agreements, communications, and understandings, both
written and oral, regarding such subject matter. This
Agreement may only be modified, or any rights under it waived,
by a written document executed by both parties. This Agreement
may be executed in any number of counterparts,
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<PAGE>
all of which taken together shall constitute a single
instrument. Execution and delivery of this Agreement may be
evidenced by facsimile transmission.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
YAHOO! INC. THESTREET.COM
By: /s/ Ellen Simonoff By: /s/ Brendan Amyot
----------------------------- -------------------------------
Title: VP Title: COO
-------------------------- ----------------------------
Address: 3400 Central Expressway Address: 2 Rector Street
----------------------- --------------------------
Santa Clara, CA 95051 New York, NY 10006
------------------------ --------------------------
Telecopy: ***** Telecopy:
----------------------- -------------------------
E-mail: ***** E-mail: *****
------------------------- --------------------------
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<PAGE>
EXHIBIT A
DEFINITIONS
"Advertising Rights" shall mean the advertising and promotional rights
sold or licensed with respect to Content Pages.
"Affiliates" shall mean any company or any other entity world-wide,
including, without limitation, corporations, partnerships, joint ventures, and
Limited Liability Companies, in which Yahoo owns at least a twenty percent
ownership, equity, or financial interest.
"Content Pages" shall mean those pages in the Yahoo Property that
contain Licensor Content and that are co-branded with both Licensor Brand
Features and Yahoo Brand Features.
"Enhancements" shall mean any updates, improvements or modifications
made to, or derivative works created from, the Licensor Content by Licensor.
"Intellectual Property Rights" shall mean all rights in and to trade
secrets, patents, copyrights, trademarks, know-how, as well as moral rights and
similar rights of any type under the laws of any governmental authority,
domestic or foreign.
"Internet" shall mean the collection of computer networks commonly
known as the Internet, and shall include, without limitation, the World Wide
Web.
"Licensor Brand Features" shall mean all trademarks, service marks,
logos and other distinctive brand features of Licensor that are used in or
relate to the Licensor Content, including, without limitation, the trademarks,
service marks and logos described in Exhibit B hereto.
"Licensor Content" shall mean, collectively, all materials, data, and
similar information collected, produced, and owned by Licensor, which is a
collection of HTML files and certain related scripts, as further described in
Exhibit B attached hereto, including, without limitation, all Enhancements.
"Yahoo Brand Features" shall mean all trademarks, service marks, logos
and other distinctive brand features of Yahoo that are used in or relate to a
Yahoo Property, including, without limitation, the trademarks, service marks and
logos described in Exhibit B.
"Yahoo Properties" shall mean any Yahoo branded or co-branded media
properties, including, without limitation, Internet guides, developed in whole
or in part by Yahoo or its Affiliates and distributed or made available by Yahoo
or its Affiliates over the Internet.
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<PAGE>
EXHIBIT B
LICENSOR CONTENT
(1) Wrong! -- a column by James Cramer written at least once per day on
which the New York Stock Exchange is open
(2) FundWatch -- a column on mutual funds written at least once per day on
which the New York Stock Exchange is open
(3) -- a second daily mutual funds column to be agreed upon by
both parties
(4) -- a daily column by Dave Kansas to be agreed upon by both
parties
LICENSOR BRAND FEATURES
TheStreet.com
TheStreet.com related logos
YAHOO BRAND FEATURES
Yahoo!
Yahoo related logos
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<PAGE>
EXHIBIT C
DELIVERY AND TECHNICAL SPECIFICATIONS
A. Licensor's Responsibilities:
1 Deliver FundWatch and Wrong! columns within ***** of when they
appear on THESTREET.COM's site.
2. Deliver the other columns specified in Exhibit B by ***** on a
daily basis for days on which the New York Stock Exchange is
open.
B. Yahoo's Responsibilities:
1. Archive no more than ***** worth of content on its site.
2. Display Licensor Content on a co-branded page with the links
specified in Exhibit D.
3. Display Licensor copyright information on story pages.
C. Format of Content Delivery: text format via email
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<PAGE>
EXHIBIT D
LINKS
During the Term of this Agreement, the following links will be maintained:
<TABLE>
<CAPTION>
LOCATION OF LINK LINK TO WHERE SPECIFICS OF LINK
- ---------------- ------------- -----------------
<S> <C> <C>
Story pages the part of the co-branded banner in
http://www.thestreet.com which TheStreet.com's logo
appears
bottom of story pages http://register.thestreet.com/sc text to be provided by Licensor and
ripts/adpage/Request.d11? to be approved by Yahoo!
NewUserOffer&offer_code
=TSFree Trial
</TABLE>
10
<PAGE>
ADDENDUM 1
TO THE CONTENT LICENSE AGREEMENT EFFECTIVE JANUARY 1, 1998
BETWEEN YAHOO! INC. AND THESTREET.COM, L.L.C.
This Addendum No. 1 to the Content License Agreement (the "Agreement")
with an effective date of January 1, 1998, by and between Yahoo! Inc. ("Yahoo")
and TheStreet.com, L.L.C. ("Licensor") is made as of September 1, 1998, and
modifies certain terms of the Agreement.
The parties agree as follows:
1. Exhibit B is amended to include the following additional content:
(5) Silicon Valley -- a daily (on days on which the New
York Stock Exchange is open) column
from the "Companies" section of
Licensor's web site. On days on which
the New York Stock Exchange is open
and Licensor has no Silicon Valley
column, Licensor will deliver a Top
Stories column from the "Companies"
section of its web site.
(6) Online Brokerage -- a weekly column on the online
brokerage industry. On weeks during
which Licensor has no Online Brokerage
column, Licensor will deliver a
Silicon Saturday column from the
"Markets" section of its web site.
2. Exhibit C, Section A is amended to read as follows:
Licensor's Responsibilities:
1. Deliver Wrong! columns within ***** of when they
appear on TheStreet.com's site.
2. Deliver Silicon Valley and Online Brokerage columns
(or their replacements as specified in Exhibit B)
within ***** of when they appear on TheStreet.com's
site.
3. Deliver the other columns specified in Exhibit B at
***** they are posted on Licensor's site.
3. Except as otherwise set forth in this Addendum No. 1, the
terms of the Agree ment remain in full force and effect.
The parties have caused this Addendum No. 1 to be executed by their
duly authorized representatives as of the date first written above.
YAHOO! INC. LICENSOR
By: /s/ Ellen Simonoff By: /s/ Brendan Amyot
------------------------- --------------------------
Title: VP Title: COO
---------------------- -----------------------
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[LOGO]
Anchin, Block & Anchin LLP
Accountants and Consultants
1375 Broadway
New York, New York 10018
(212) 840-3456
FAX (212) 840-7066
March 2, 1999
Mr. Simon Clark
The Street.com, Inc.
2 Rector Street
New York, NY 10006
Dear Simon:
As per our conversation, Anchin, Block & Anchin LLP has resigned as the
independent auditors of The Street.com, Inc. ("the company") subsequent to our
audit of the 1997 financial statements.
During the course of our engagement as auditors of the company, there were no
disagreements with management on significant matters such as application of
generally accepted accounting principles, auditing standards, etc.
It is also our understanding that our financial statements will not be utilized
in connection with the Company's proposed initial public offering.
We wish you and The Street.com continued success.
If we can be of any additional assistance, please contact me.
Sincerely,
/s/ Jeffrey I. Rosenthal
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Jeffrey I. Rosenthal,Partner
