<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 28, 1999
REGISTRATION NO. 333-80335
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
PCQUOTE.COM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7375 36-4284139
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
Incorporation or Organization) No.)
</TABLE>
300 SOUTH WACKER DRIVE, SUITE 300
CHICAGO, ILLINOIS 60606
(312) 913-2800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JIM R. PORTER, CHIEF EXECUTIVE OFFICER
PCQUOTE.COM, INC.
300 SOUTH WACKER DRIVE, SUITE 300
CHICAGO, ILLINOIS 60606
(312) 913-2800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES TO:
DONALD E. FIGLIULO, ESQ. NEIL GOLD, ESQ.
Wildman, Harrold, Allen & Dixon Fulbright & Jaworski L.L.P.
225 West Wacker Drive 666 Fifth Avenue
Chicago, Illinois 60606-1229 New York, New York 10103
--------------------------
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,
please check the following box. /X/
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be paid by us in connection with this offering are as
follows. All amounts other than the SEC registration fee, NASD filing fee and
Nasdaq National Market application fee are estimates.
<TABLE>
<S> <C>
SEC registration fee............................................ $34,687.00
NASD filing fee................................................. $12,977.50
Nasdaq National Market listing fee.............................. $ *
Printing........................................................ $ *
Legal fees and expenses......................................... $ *
Accounting fees and expenses.................................... $ *
Blue sky fees and expenses...................................... $ *
Transfer agent and registrar fees............................... $ *
Miscellaneous................................................... $ *
---------
Total........................................................... $ *
---------
---------
</TABLE>
- ------------
* To be provided by amendment
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act").
As permitted by the Delaware General Corporation Law, our certificate of
incorporation includes a provision that eliminates the personal liability of our
directors for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to us
or our stockholders, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the General Corporation Law of the State of Delaware (regarding
unlawful dividends and stock purchases) or (iv) for any transaction from which
the director derived an improper personal benefit.
As permitted by the General Corporation Law of the State of Delaware, our
Bylaws provide that (i) we are required to indemnify our directors and officers
to the fullest extent permitted by the General Corporation Law of the State of
Delaware, subject to certain very limited exceptions, (ii) we may indemnify our
other employees and agents as set forth in the General Corporation Law of the
State of Delaware, (iii) we are required to advance expenses, as incurred, to
our directors and executive officers in connection with a legal proceeding to
the fullest extent permitted by the General Corporation Law of the State of
Delaware, subject to certain very limited exceptions and (iv) the rights
conferred in our Bylaws are not exclusive.
We intend to enter into Indemnification Agreements with each of our
directors and executive officers to give them additional contractual assurances
regarding the scope of the indemnification set forth in our certificate of
incorporation and to provide additional procedural protections. At present,
there is no pending litigation or proceeding involving one of our directors,
officers or employees regarding which indemnification is sought, nor are we
aware of any threatened litigation that may result in claims for
indemnification.
II-1
<PAGE>
Reference is also made to Section 8 of the Underwriting Agreement, which
provides for the indemnification of our officers, directors and controlling
persons against certain liabilities. The indemnification provision in our
certificate of incorporation, Bylaws and the Indemnification Agreements entered
into between us and each of our directors and executive officers may be
sufficiently broad to permit indemnification of our directors and executive
officers for liabilities arising under the Securities Act.
We expect, with approval by our Board of Directors, to obtain directors' and
officers' liability insurance.
Reference is made to the following documents filed as exhibits to this
Registration Statement regarding relevant indemnification provisions described
above and elsewhere herein:
<TABLE>
<CAPTION>
DOCUMENT EXHIBIT NUMBER
- ----------------------------------------------------------------------------- -----------------
<S> <C>
Form of Underwriting Agreement............................................... 1.1
Amended and Restated Articles of Incorporation of PCQuote.com................ 3.1
Bylaws of PCQuote.com........................................................ 3.2
Form of Indemnification Agreement............................................ 10.12
</TABLE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
We issued 9,800,000 shares of our common stock to HyperFeed Technologies on
March 19, 1999.
On April 12, 1999, we granted CNNFN a warrant to purchase 515,790 shares of
our common stock exercisable for nominal consideration. On April 29, 1999, CNNFN
purchased 128,948 shares of our common stock upon exercise of the vested portion
of this warrant.
All issuances of securities were made in reliance on Section 4(2) of the
Securities Act.
The above share numbers reflect an anticipated 9,800-for-1 split of our
common stock.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed herewith:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- ------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Certificate of Incorporation*
3.2 By-laws**
4.1 Specimen Stock Certificate*
4.2 Warrant issued by Registrant to CNNFN**
4.3 Statement of Registration Rights by and between registrant and CNNFN (included in Exhibit 4.2)**
4.4 Form of Registration Rights Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
5.1 Opinion of Wildman, Harrold, Allen & Dixon regarding legality of the securities being
registered*
10.1 Form of Contribution and Separation Agreement to be entered into by and between registrant and
HyperFeed Technologies, Inc.**
10.2 Form of Services Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- ------------------------------------------------------------------------------------------------
<C> <S>
10.3 Form of Maintenance Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.4 Form of Datafeed License Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.5 Form of Non-Competition Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.6 Form of Tax Indemnification and Allocation Agreement to be entered into by and between
registrant and HyperFeed Technologies Inc.*
10.7 Agreement dated April 12, 1999 by and between registrant and CNNFN***
10.8 Software License and Distributor Agreement dated May 28, 1999 by and between registrant and
Townsend Analytics, Ltd.*
10.9 Executive Employment Agreement dated June 8, 1999 by and between registrant and Andrew
Peterson**
10.10 1999 Combined Incentive and Non-statutory Stock Option Plan**
10.11 Internet Trading Access Agreement dated December 21,1998 by and between registrant and AB
Watley*
10.12 Form of Indemnification Agreement to be entered into by and between registrant and its directors
and executive officers**
23.1 Consent of KPMG LLP*
23.2 Consent of Wildman, Harrold, Allen & Dixon (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
27.1 Financial Data Schedule**
99.1 Consent of James R. Quandt**
99.2 Consent of Francis J. Harvey**
99.3 Consent of Ronald J. Grabe**
</TABLE>
- ------------
* To be filed by amendment
** Previously filed
*** Confidentiality Requested, confidential portions have been omitted and filed
separately with the Commission, as required by Rule 406(b).
(b) Financial Statement Schedules
No financial statement schedules are provided because the information called
for is not required or is shown either in the financial statements or the notes
thereto.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement, 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
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 14 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act
II-3
<PAGE>
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, 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, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to its Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Chicago, State of Illinois, on the 28th day of June, 1999.
<TABLE>
<S> <C> <C>
PCQuote.com, INC.
By: /s/ JIM R. PORTER
-----------------------------------------
Jim R. Porter
CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registrant's Registration Statement has been signed by the
following persons in the capacities indicated on June 28, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------- --------------------------------------
<C> <S>
/s/ JIM R. PORTER
- -------------------------------------- Chairman of the Board and Chief
Jim R. Porter Executive Officer
/s/ TIMOTHY K. KRAUSKOPF
- -------------------------------------- President, Chief Operating Officer and
Timothy K. Krauskopf Director
/s/ ANDREW N. PETERSON
- -------------------------------------- Chief Financial Officer and Secretary
Andrew N. Peterson
*
- -------------------------------------- Director
John E. Juska
*
- -------------------------------------- Director
John R. Hart
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By /s/ TIMOTHY K.
KRAUSKOPF
-------------------------
Timothy K. Krauskopf
AS ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ------------- --------------------------------------------------------------------------------------------- ---------
<C> <S> <C>
1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Certificate of Incorporation*
3.2 By-laws**
4.1 Specimen Stock Certificate*
4.2 Warrant issued by Registrant to CNNFN**
4.3 Statement of Registration Rights by and between registrant and CNNFN (included in Exhibit
4.2)**
4.4 Form of Registration Rights Agreement to be entered into by and between registrant and
HyperFeed Technologies, Inc.**
5.1 Opinion of Wildman, Harrold, Allen & Dixon regarding legality of the securities being
registered*
10.1 Form of Contribution and Separation Agreement to be entered into by and between registrant
and HyperFeed Technologies, Inc.**
10.2 Form of Services Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.3 Form of Maintenance Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.4 Form of Datafeed License Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.5 Form of Non-Competition Agreement to be entered into by and between registrant and HyperFeed
Technologies, Inc.**
10.6 Form of Tax Indemnification and Allocation Agreement to be entered into by and between
registrant and HyperFeed Technologies Inc.*
10.7 Agreement dated April 12, 1999 by and between registrant and CNNFN***
10.8 Software License and Distributor Agreement dated May 28, 1999 by and between registrant and
Townsend Analytics, Ltd.*
10.9 Executive Employment Agreement dated June 8, 1999 by and between registrant and Andrew
Peterson**
10.10 1999 Combined Incentive and Non-statutory Stock Option Plan**
10.11 Internet Trading Access Agreement dated December 21,1998 by and between registrant and AB
Watley*
10.12 Form of Indemnification Agreement to be entered into by and between registrant and its
directors and executive officers**
23.1 Consent of KPMG LLP*
23.2 Consent of Wildman, Harrold, Allen & Dixon (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
27.1 Financial Data Schedule**
99.1 Consent of James R. Quandt**
99.2 Consent of Francis J. Harvey**
99.3 Consent of Ronald J. Grabe**
</TABLE>
- ------------
* To be filed by amendment
** Previously filed
*** Confidentiality Requested, confidential portions have been omitted and filed
separately with the Commission, as required by Rule 406(b).
<PAGE>
CONFIDENTIAL TREATMENT
PORTIONS INDICATED BY A [ * ] HAVE
BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION.
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of this 12th day of
April, 1999 (the "Effective Date"), by and between CNNfn, a division of Cable
News Network LP, LLLP ("CNNfn"), located at 5 Penn Plaza, 20th Floor, New York,
New York 10001, and PCQuote.com, Inc., located at 300 South Wacker Drive,
Chicago, Illinois 60606 ("PCQ.com").
W I T N E S S E T H:
WHEREAS, PCQ.com operates and maintains a site on the world wide web of
the Internet located at "http://www.pcquote.com" designed to provide investment
and/or financial tools to users (the "PCQ.com"), and CNNfn operates and
maintains a site on the world wide web of the Internet at "http://cnnfn.com"
(the "CNNfn Site");
WHEREAS, to enhance the PCQ.com Site, CNNfn agrees to license and make
accessible to PCQ.com certain headlines and other elements from CNNfn original
stories selected and provided by CNNfn as set forth herein, which content will
serve as an access point for users of the PCQ.com Site to the CNNfn Site;
WHEREAS, to provide branding for the CNNfn Site and create awareness
and visitor traffic for the CNNfn Site, PCQ.com agrees to include CNNfn branding
and navigation with the CNNfn licensed content, and PCQ.com further agrees to
grant CNNfn an equity interest in PCQ.com;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and the mutual benefits to be derived therefrom and the other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. THE CNNFN HEADLINES. CNNfn hereby agrees to make accessible
to PCQ.com certain headlines and other elements from
CNNfn original stories ("CNNfn Headlines") published on
the CNNfn Site (which shall include any successor site).
CNNfn will retain sole and exclusive editorial control
over the production and selection of CNNfn Headlines
provided to PCQ.com hereunder and shall indemnify and
hold PCQ.com harmless from any claims resulting from
PCQ.com's publication of the same on the PCQ.com Site as
provided and authorized by CNNfn hereunder. The CNNfn
Headlines will be defined to include the following
elements: URL to full story, short headline, ticker
symbols
1
<PAGE>
contained in the story, the lead paragraph of the story
and the timestamp of each story post. PCQ.com shall have
no right to modify, supplement, edit, rewrite or
otherwise alter the CNNfn Headlines provided hereunder
and agrees to use the same, as it determines appropriate
for the PCQ.com Site, "as is." PCQ.com will have access
to the following additional CNNfn elements solely for use
in implementing display of the CNNfn Headlines on the
PCQ.com Site: TV aspect - ratio graphic associated with
the story and editorial sections in which the story is
posted ("Resource Elements"). It is understood and agreed
that PCQ.com shall have no right whatsoever to use,
display or transmit the Resource Elements on the PCQ.com
Site. To the extent CNNfn offers any third party any
material improvements or modifications to the CNNfn
Headlines in a substantially similar arrangement to the
one established in this Agreement, PCQ.com shall have
access to the same at its option at no additional cost.
Subject to PCQ.com's compliance with the terms of this
Agreement, CNNfn hereby grants PCQ.com a license to
access, use, display and transmit the CNNfn Headlines on
the PCQ.com Site during the Term. CNNfn retains all
rights to use such CNNfn Headlines in any other manner it
deems appropriate, subject only to the limited
Exclusivity expressly set forth in Paragraph 5 below.
2. ACCESS TO CNNFN HEADLINES. CNNfn shall make the CNNfn
Headlines available to PCQ.com through an ftp file or other
mutually agreeable means. PCQ.com shall be responsible for
implementing the necessary procedures to actually receive such
ftp file.
3. USE OF CNNFN CONTENT BY PCQ.COM. The CNNfn Headlines will
appear with the CNNfn logo on one or more pages of the PCQ.com
Site designed by PCQ.com, subject to CNNfn's reasonable
approval, and will serve as an access point to the CNNfn Site
for users of the PCQ.com Site. Specifically, the CNNfn
Headlines will contain links back to the CNNfn Site home page
and the full stories on the CNNfn Site. CNNfn agrees to
include necessary components from the PCQ.com Site navigation
on any specially designed pages for PCQ.com users accessing
the CNNfn Site through links on the PCQ.com Site so that such
users will have quick and easy access back to the PCQ.com
Site, yet CNNfn will receive the page impressions.
Additionally, PCQ.com shall display all CNNfn Headlines it
selects for display in one area of the page with clear CNNfn
branding and attribution and will not create any pages on the
PCQ.com Site consisting solely of CNNfn Headlines.
Accordingly, PCQ.com will have no right to sell any
advertising specifically for placement with the CNNfn
Headlines. While third party content will appear on the same
page as the CNNfn Headlines, PCQ.com will differentiate such
display so as not to cause any confusion as to source of the
other content. It is further agreed that no more than five (5)
CNNfn Headlines may appear on any one page of the PCQ.com
Site. In addition, PCQ.com will use posting of stories, links
and branding opportunities, all pursuant to this Agreement, to
position CNNfn as PCQ.com's premier provider of business news
content for the PCQ.com Site.
2
<PAGE>
4. GRANT OF RIGHT IN MARKS, LOGOS, AND BRAND IDENTIFIERS.
a. CNNfn hereby grants PCQ.com a limited non-exclusive
license to use the CNNfn logo in the form provided by
CNNfn (the "CNNfn Logo") during the Term of this
Agreement in accordance with the terms set forth
herein. Such license is granted solely in connection
with PCQ.com's rights and obligations under this
Agreement and, in particular, for the purpose of
licensing PCQ.com to use the CNNfn Logo on the
PCQ.com Site as expressly contemplated herein for
attribution for the CNNfn Headlines and as a
link/navigational button to the CNNfn Site, providing
the PCQ.com users with quick and easy access to the
CNNfn Site as posted by CNNfn. All such uses will be
subject to CNNfn's prior approval as to the manner
and/or form of use. PCQ.com will not be allowed to
use or reproduce the CNNfn Logo for any other
purpose, including the general promotion of the
PCQ.com Site, without the prior written approval of
CNNfn.
b. PCQ.com hereby grants CNNfn a limited non-exclusive
license to use the PCQ.com logo in the form as
PCQ.com may provide to CNNfn from time to time (the
"PCQ.com Logo") during the Term of this Agreement.
Such license is granted solely in connection with
CNNfn's rights and obligations under this Agreement
and, in particular, for the purpose of licensing
CNNfn to display the PCQ.com Logo on the CNNfn Site
with links back to the PCQ.com Site pursuant to this
Agreement. All such uses shall be subject to
PCQ.com's prior approval as to manner and/or form of
use.
c. Except as provided for in this Agreement, each party
understands that the links contemplated above to the
other party's Site may not be used in any manner to
provide viewers access to the other party's Site via
any caching, framing, layering or other techniques
that cause intermediate copying of the other party's
Site (or elements thereof) or display of the other
party's site or portions thereof in any manner
unintended by the owner of the Site, including
without limitation, display of the other party's Site
with any materials posted by the linking party or any
party other than the other party except as expressly
permitted herein. Further, each party represents and
warrants that it has all rights to its respective
Logo and the other party's use thereof (as expressly
authorized hereunder and as provided by the owner)
will not infringe the rights of any third party. Each
party agrees that it will not in any way suggest or
imply by the use of the other party's Logo that its
Site or any of its products or services are
affiliated with, endorsed or sponsored by or created
in association with the other party except to the
extent of the limited relationship established under
this Agreement. Each party acknowledges that the
other party owns all right, title and interest in and
to its Logo and retains all rights with respect
3
<PAGE>
thereto. Neither party will do anything inconsistent
with such ownership and all uses of the Logo will
inure to the benefit of and on behalf of the
respective owner of the Logo. Each party further
agrees that it will not attack or assist others in
attacking the title of the Logo of the other party.
d. Each party acknowledges and agrees that:
(i) it will not register any Logo belonging to
the other party;
(ii) it will not knowingly permit any third party
to use the other party's Logo unless
authorized to do so in writing by such other
party;
(iii) it will not knowingly use or permit the use
of any mark, name, or image likely to cause
confusion with such other party's Logo; and
(iv) all goodwill associated with such party's
use of the other party's Logo will inure to
the owner of the Logo.
e. The manner and form of use of a party's Logo in the
other party's Site will be subject to such party's
prior written approval, which each party undertakes
not to unreasonably withhold or delay following its
receipt of a sample, mock-up or other suitable
example which provides a fair representation of the
proposed use of the Logo concerned and indicates the
context in which the Logo is to be used.
Notwithstanding the foregoing, it is agreed that each
party will notify the other party in writing of its
technical requirements in respect of the use of its
Logo, including those in respect of font,
proportionality, image, color, context, text next or
in proximity to its Logo and similar matters, and
those requirements will be followed. Once a use of a
Logo is approved for use under certain circumstances,
then it is agreed that the party receiving such
approval may subsequently make substantially similar
uses of the Logo under similar circumstances, but
only until the party granting approval revokes or
limits its approval which it may do at its sole
discretion. A party acting under a prior approval
will conform to any alteration of revocation of the
approval as soon as is commercially reasonable.
5. EXCLUSIVITY. During the Term, CNNfn agrees not to license the
CNNfn Headlines to any unaffiliated third party for use,
display and/or transmission on a generally accessible web
site that has as its primary purpose to provide users
investment and/or financial tools including real time or
delayed equity and/or futures quotes ("Restricted Web
Sites"). Such Restricted Web Sites currently include but
are not limited to the following ("Listed Competitors"):
[ * ]. Notwithstanding possible characterization as a
Restricted Web Site, it is expressly understood and
agreed that the Exclusivity shall not apply to (i) any
registered broker-dealer web sites that are used for
trading which are only accessible by its
4
<PAGE>
clients and or agents; (ii) financial web sites currently
controlled by CNNfn or its affiliates or any of the
following existing relationships (excluding any CNNfn
optional renewal terms to the extent the third party has
become a "Broker Neutral Trading Enabled Site;" for
purposes of the foregoing, a "Broker Neutral Trading
Enabled Site" shall be defined as a web site that is not
affiliated with a specific broker(s) where users can
enter orders for financial securities, have the orders
fulfilled, and transactions can be passed off to a
clearing house for settlement): Quicken, AdvantGo,
Discover Brokerage Direct, Netscape, Microsoft, Sun and
Oracle; or (iii) any sites operated by any of the Listed
Competitors that do not meet the criteria of a Restricted
Web Site as set forth above. Accordingly, CNNfn's
Exclusivity agreement with respect to the Listed
Competitors shall apply only with respect to web sites
operated by such Listed Competitors that fall within the
definition of a Restricted Web Site as such Listed
Competitors may operate multiple sites. Similarly, the
parties acknowledge that existing sites may shift their
focus in the future as to fall within the definition of a
Restricted Web Site. While CNNfn shall be free to enter
into agreements with entities for sites that do not fall
within the definition of a Restricted Web Site, CNNfn
agrees to act in good faith when considering new
licensing arrangements for the CNNfn Headlines
substantially similar to this one so as to minimize the
likelihood of any foreseeable future conflicts related to
the Exclusivity outlined herein.
6. FEE. In consideration of CNNfn's commitments set forth herein,
simultaneously with the execution of this Agreement, PCQ.com
will issue CNNfn a warrant in the form of Exhibit A attached
hereto for 52.6316 shares of PCQ.com common stock representing
a five percent (5%) interest in PCQ.com (the "PCQ.com
Warrant"). PCQ.com represents and warrants to CNNfn that the
common stock subject to the PCQ.com Warrant is the only
outstanding class of stock as of the date hereof and is the
same common stock held by PCQ.com's parent company, PCQ, with
all of the same antidilution and other customary protections
provided to PCQ. As indicated in the PCQ.com Warrant, the
shares subject to the PCQ.com Warrant shall vest as follows:
25% on the date of execution of this Agreement and 25% on each
anniversary date of this Agreement unless the Agreement is
terminated prior to expiration of its Term in accordance with
the provisions set forth herein.
Simultaneously with the execution of this Agreement,
CNNfn and PCQ.com will also enter into a Rights Agreement in
the form of Exhibit B attached hereto pursuant to which CNNfn
will receive certain rights in connection with the PCQ.com
Warrant.
In the event that PCQ.com fails to offer and issue
shares to the public pursuant to an effective S-1 registration
statement ("IPO") on or before the date eighteen (18) months
from the date of the Agreement contemplated hereunder
("Trigger Date"), CNNfn shall have the right to request an
independent valuation of PCQ.com (prepared at PCQ.com's sole
expense) by an investment banker mutually selected by CNNfn
and PCQ.com and the option to exchange its
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PCQ.com Warrant for one of the following, as determined
by PCQ: (a) a warrant for a number of shares with
equivalent value in PCQ.com's publicly traded parent
company, PCQuote ("PCQ") with identical exercise price,
vesting, registration rights and other terms at no cost
to CNNfn (the "CNNfn Exchange Right"), or (b) cash equal
to the value of CNNfn's interest in PCQ.com; provided
that upon exchange, CNNfn's percentage ownership in PCQ
shall in no event exceed CNNfn's percentage ownership in
PCQ.com, immediately prior to the exchange. CNNfn may
exercise the CNNfn Exchange Right any time after the
Trigger Date and prior to the IPO by notice to PCQ.com
and PCQ.com will use its best efforts to secure the
valuation as soon as practicable and in any event within
thirty (30) days of CNNfn's notice. Notwithstanding the
foregoing, the CNNfn Exchange Right shall not be
exercisable if the IPO did not occur prior to the Trigger
Date as the result of adverse market conditions and
pursuant to the advice of its underwriters
notwithstanding PCQ.com's preparation and filing of such
S-1 until such time as conditions are favorable and
PCQ.com is advised to proceed with the IPO. The other
provisions of the Agreement shall continue in accordance
with their terms.
7. TERM AND TERMINATION.
a. TERM. The Agreement will commence upon the Effective
Date and will continue for a period of three and
one-half (3 1/2) years, unless earlier terminated in
accordance with the Agreement. It is the parties'
mutual desire to launch such CNNfn Headlines on the
PCQ.com Site as soon as practicable upon execution of
the Agreement.
b. TERMINATION. Either party may terminate the Agreement
at any time during the Term in the event of a
material breach by the other party that remains
uncured for a period of thirty (30) days after
written notice to the other party of such breach.
Additionally, either party may terminate the
Agreement in the event the other party becomes the
subject of any bankruptcy proceeding, makes an
assignment for the benefit of its creditors, or a
receiver, liquidator or trustee is appointed for its
affairs. Either party may also terminate the
Agreement if: (i) any third party reasonably
considered to be a competitor of the other party
merges with or acquires all or substantially all of
the assets of the other party or in the event of any
other material change in control of the other party
involving a competitor of the first party; or (ii)
the other party makes any material adverse change in
its web site or conducts its business in a manner
that would have a material adverse affect on the
terminating party's reputation, integrity or
goodwill. Any termination pursuant to clause (i)
above shall be effective three (3) months from
written notice of a decision to terminate.
Termination under clause (ii) shall not be effective
for sixty (60) days such that the applicable party
may have the opportunity to cure within such sixty
(60) day period and avoid termination, however, the
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adversely affected party may immediately suspend its
performance under the Agreement and demand that all
linking and branding elements be removed from the
problem site until the problem is cured to its
reasonable satisfaction or the Agreement terminates.
Additionally, in the event CNNfn, its parent company
or one of its affiliated or subsidiary companies (a
"TW Company") merges or consolidates with, acquires
all or substantially all of the assets of a company
engaged in whole or in part in providing information
and services similar to those provided by PCQ.com, or
a TW Company develops a similar information service
internally (a "Trigger Event"), then any time after
the one (1) year anniversary of the Agreement, CNNfn
shall have the right, at its election, to terminate
the Exclusivity contemplated hereunder upon One
Hundred Twenty (120) days notice to PCQ.com. The
remainder of the Agreement shall remain in full force
and effect and CNNfn shall continue to provide the
CNNfn Headlines to PCQ.com during the remainder of
the Term without any license fee from PCQ.com. As
indicated in the PCQ.com Warrant, all unvested
PCQ.com Shares subject to the Warrant shall be
automatically cancelled by PCQ.com in the event of
any termination of this Agreement by PCQ.com as a
result of a CNNfn event giving rise to a termination
right or upon the date the Exclusivity set forth
herein is no longer applicable as a result of CNNfn's
election to terminate the same as permitted herein.
8. REPRESENTATIONS AND WARRANTIES. Each party represents and
warrants to the other party that (a) it has the legal right
and corporate power and authority to execute, deliver and
perform this Agreement; (b) its execution, delivery and
performance of this Agreement has been duly authorized in
accordance with all appropriate corporate power and authority;
(c) its execution, delivery and performance of this Agreement
will not violate the terms or provisions of any other
agreement, contract or other instrument, whether oral or
written, to which it is a party or by which it or its
properties or assets are bound or any order, judgment or
decree to which it is subject; (d) the individual signing this
Agreement on its behalf has been authorized to execute this
Agreement in the capacity set forth under such individual's
name on the signature page hereof; and (e) the execution,
delivery and performance of this Agreement constitutes its
legal, valid and binding obligation enforceable against it in
accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors'
rights generally and that the remedy of specific performance
may be subject to judicial discretion.
The representations and warranties set forth in this
Paragraph 8 are being made by each party to induce the other
party to enter this Agreement and shall survive the execution
and delivery of this Agreement.
9. INDEMNIFICATION. Each party hereto hereby agrees to indemnify
and hold harmless the other party and the other party's
parent, subsidiaries and affiliates, and the
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directors, officers, employees, agents and
representatives of such party and its parent, subsidiary
and affiliates, from and against the full amount of any
and all claims, actions, counterclaims, suits, damages,
losses, judgments and expenses, whether fixed or
contingent, including, without limitation, reasonable
attorneys' fees and expenses (including an allocable
portion of in house counsel fees), reasonable
out-of-pocket expenses and court costs, that such party
and/or any of the foregoing entities or individuals may
incur as the result of or otherwise related to any act or
omission of performance by the indemnifying party
hereunder, materials or services provided by the
indemnifying party hereunder (including each party's
respective Trademarks), or a breach or default by the
indemnifying party of any of its representations,
warranties or obligations set forth in this Agreement;
PROVIDED, HOWEVER, that the indemnified party must (i)
give to the indemnifying party prompt written notice of
any claim, action or other matter to which this
indemnification applies; (ii) afford to the indemnifying
party the opportunity to participate in and fully control
(with legal counsel of its choice; PROVIDED such legal
counsel is reasonably acceptable to the indemnified
party), the disposition (whether by compromise,
settlement or other resolution) of such claim, action,
suit or other matter, provided that the indemnifying
party acknowledges its indemnification obligations; and
(iii) fully cooperate with the reasonable requests of the
indemnifying party to that end.
11. PUBLICITY. Each party hereby agrees that all press releases
and other public announcements involving the subject matter of
this Agreement or the other party hereto shall be subject to
the mutual approval of the parties hereto with respect to
content, timing and the necessity therefor. The parties agree
to cooperate with one another with regard to such public
announcements from time to time during the Term. Specifically,
the parties shall cooperate with one another to develop a
mutually agreeable press release related to this Agreement as
soon as possible after the execution of the same.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES SUCH AS, BUT NOT LIMITED TO, LOSS
OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, INCURRED
BY EITHER PARTY WHETHER IN AN ACTION IN CONTRACT OR TORT EVEN
IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
13. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN TO THE
CONTRARY NEITHER PARTY MAKES AND EACH PARTY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY IMPLEIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR A COURSE OF PERFORMNCE.
WITHOUT LIMITING THE
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FOREGOING, EACH PARTY ACKNOWLEDGES THAT THE OTHER'S SITE
IS OPERATED ON AN "AS IS" BASIS AND NEITHER PARTY MAKES
ANY WARRANTY THAT ITS SITE WILL BE ERROR-FREE OR THAT
ACCESS THERETO WILL BE UNINTERRUPTED.
14. CONFIDENTIALITY. Except as and to the extent required by law,
neither party will disclose or use, and will direct its
representatives not to disclose or use to the detriment of the
other party, any Confidential Information (as defined below)
with respect to the business of the other party furnished, or
to be furnished, by such party, or their respective
representatives to the other party or its representatives at
any time or in any manner other than disclosures to employees,
financial advisors, attorneys and accountants on a
need-to-know and confidential basis. For purposes of this
Paragraph, "Confidential Information" means the specific terms
of this Agreement and any information about the business or
activities of either party stamped "confidential" or
identified in writing as such by a party to the other party
promptly following its disclosure. Disclosure of Confidential
Information to employees and agents of the parties hereto will
be limited to a need to know basis under circumstances where
the employee or agent is advised of the confidential nature of
the disclosure and is bound to keep said information
confidential. Notwithstanding the foregoing, the following
information shall not be deemed Confidential Information: (i)
information that is already known to the recipient party or
its representatives or to others not bound by a duty of
confidentiality prior to disclosure; (ii) information that
becomes publicly available through no fault of the recipient
party or its representatives; (iii) information that is
independently developed by a party without the use of or
reference to the Confidential Information of the other party;
or (iv) information that properly comes into the recipient's
possession from a third party who is not under an obligation
to maintain the confidentiality of such information.
Notwithstanding anything contained herein, it shall not be a
breach of this provision for either party to disclose
Confidential Information pursuant to any applicable subpoena
or other legal or regulatory process or to its shareholders
pursuant to regulatory requirement so long as the recipient
notifies the disclosing party prior to making such disclosure.
Upon the written request of the disclosing party, the
recipient party will promptly return to the disclosing party
or destroy any Confidential Information in its possession and
certify in writing to the disclosing party that it has done
so. Notwithstanding any other provision of this Paragraph,
either party may, for purposes of filing legally required
documents in connection with any SEC or other government rules
or regulations, disclose the existence but not the financial
terms of this Agreement.
15. TRADEMARKS. Each party hereby covenants and agrees that the
trademarks, trade names, service marks, copyrights and other
proprietary rights of the other party are and shall remain the
sole and exclusive property of that party and neither party
shall hold itself out as having any ownership rights with
respect to or, except as specifically granted hereunder, in
any other rights therein. Any and all goodwill
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associated with any such rights shall inure directly and
exclusively to the benefit of the owner thereof. Such
proprietary rights of the other party shall only be used
as expressly provided in this Agreement.
16. RESERVATION OF RIGHTS. Subject only to the limited Exclusivity
expressly provided by CNNfn to PCQ.com herein, this Agreement
and all rights and licenses granted hereunder are
non-exclusive and, among other things, each party reserves the
absolute right to enter into agreements with third parties
related to content for their respective sites or for the
distribution of their respective content through other sites
even if competitive with this Agreement.
17. FORCE MAJEURE. If the performance hereunder by either party is
prevented, suspended or postponed due to an event of force
majeure, which for purposes hereof shall include, without
limitation, an act of God, flood, fire, earthquake, war, riot,
insurrection, strike or act of any governmental entity,
satellite or transponder failure or malfunction, or other
cause of a similar or dissimilar nature beyond the reasonable
control of such party, this Agreement may, at such party's
option, be suspended in whole or in part during the
continuance of such event without any responsibility of either
party to perform hereunder for or during such period of
suspension. The parties agree in such event to resume
performance hereunder as promptly as reasonably practicable
thereafter. Notwithstanding the foregoing, in the event of the
continuance of any such period of suspension for longer than
thirty (30) consecutive days, or in the event of sporadic
suspensions which in the aggregate exceed thirty (30) days
(excluding periods of breaking or other important news which
shall not trigger this right) in duration during any
consecutive twelve months during the term hereof, this
Agreement, and all of the respective rights and obligations of
the parties hereunder, may, at the option of either party, be
terminated (which shall relieve the parties hereto of any
further obligations under this Agreement as of the date of
such termination, except for payment of any fees or other sums
past due at the time of such termination and obligations of
indemnification expressly contained herein).
18. NOTICES. All notices required hereunder shall be in writing
and shall be either delivered in person, deposited in the
United States Mail for first class certified delivery, return
receipt requested, sent by express courier with a receipt, or
transmitted by facsimile as follows:
if to CNNfn: CNNfn
5 Penn Plaza
21st Floor
New York, NY 10001
Attention: Ms. Helen Whelan
Facsimile: (212) 714-7909
with a copy to: Cable News Network LP, LLLP
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One CNNfn Center
Box 105366
Atlanta, Georgia 30348-5366
Attention: General Counsel
Facsimile: (404) 827-1995
if to PCQ.com: PCQ.com, Inc.
300 South Wacker Drive
Chicago, Illinois 60606
Attention: Mr. Jim Porter
Facsimile: (312) 913-2959
with a copy to: Wildman Harrold Allen and Dixon
225 W. Wacker Drive
Suite 3000
Chicago, IL 60606
Attention: Don Figliulo, Esq.
Facsimile: (312) 201-2555
19. GENERAL PROVISIONS.
a. ENTIRE AGREEMENT. This Agreement constitutes the sole
agreement of the parties hereto with respect to the
subject matter hereof and supersedes all previous
written and oral agreements and understandings
between the parties with respect to the subject
matter set forth herein.
b. CAPITALIZED TERMS. All capitalized terms used herein
shall have the meaning as expressly defined in this
Agreement; provided, however, that proper nouns such
as the names of the companies and the locations shall
have their commonly understood meaning unless
otherwise expressly defined herein.
c. ASSIGNMENT. This Agreement, and any rights or
obligations contained herein, may not be assigned or
delegated by either party, in whole or in part,
voluntarily or by operation of law, without the prior
written consent of the other party, which shall not
be unreasonably withheld. Additionally, absent
consent of the other party, if any third party
acquires control over CNNfn or PCQ.com hereto by
merger, acquisition of assets and/or voting stock or
otherwise, the other party may elect to terminate
this Agreement on thirty (30) days notice if the
third party acquiring such control reasonably can be
considered to be a competitor of the other party.
d. AMENDMENT AND/OR MODIFICATION. This Agreement may not
be amended or modified at anytime except by a writing
executed by both of the parties hereto.
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e. APPLICABLE LAW. This Agreement shall be governed,
construed and enforced in accordance with the laws of
the State of Georgia and the parties hereto consent
to personal jurisdiction in and service of process by
any competent state or federal court in the State of
Georgia. Additionally, the parties hereto agree that
Atlanta, Georgia shall be the exclusive forum for the
resolution of any and all disputes, controversies or
matters arising herefrom or relating hereto. Each
party agrees that service of process by mail shall be
effective service of the same and such service shall
have the same effect as personal service within the
State of Georgia and result in jurisdiction over such
party.
f. INVALIDITY AND/OR UNENFORCEABILITY. The invalidity or
unenforceability of any particular term or provision
of this Agreement shall not affect the validity or
enforceability of any other term or provision hereof,
and the remainder of this Agreement shall be
construed in all respects as if such invalid or
unenforceable term or provision were omitted. If any
clause, provision or term of this Agreement is
declared illegal, invalid or unenforceable under
applicable present or future laws, then it is the
intention of the parties that in lieu of such clause,
provision or term, there shall be substituted a
clause, provision or term as similar in substance and
effect to such illegal, invalid or unenforceable
clause, provision or term as may be possible. In the
event one or more terms or provisions of this
Agreement shall be illegal, invalid or unenforceable
by reason of being excessive or otherwise
unreasonable as to duration, scope, subject matter or
activity, this Agreement shall be construed by
limiting or modifying such terms or provisions so as
to render the same lawful, valid and enforceable to
the greatest extent compatible with applicable law as
it shall then appear.
g. RIGHTS AND REMEDIES. All rights and remedies herein
are cumulative and in addition to any and all other
rights and remedies available at law or in equity.
h. WAIVER. The waiver by either party of any right or
remedy hereunder on any one occasion shall not
constitute a waiver of such right or remedy on any
other occasion. No delay in the exercise of any right
or remedy hereunder shall constitute a waiver of such
right or remedy or of any other right or remedy.
i. RELATIONSHIP. Nothing herein shall be deemed to
create an employment, joint venture, agency or
partnership relationship between the parties hereto
and neither party is authorized or shall act toward
any third party, individual, entity or the public in
any manner which would indicate any such relationship
with the other.
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j. SURVIVAL. The representations, warranties, limitation
of liability, confidentiality and indemnities of
CNNfn and PCQ.com set forth in this Agreement shall
survive the expiration or other termination hereof.
k. REPRESENTATIVES. Each party will appoint:
(i) a representative to coordinate promotional
plans. The appointed representatives will
agree in advance on all promotions relating
to this Agreement, provided, that any
promotion by one party pursuant to this
Agreement will be subject to the prior
written approval of the other party;
(ii) a technical representative to coordinate the
performance of the technical aspects of this
Agreement; and
(iii) an editorial representative to coordinate
and facilitate delivery of the CNNfn
Headlines hereunder.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement effective as of the date
first above written.
CNNfn, a division of
PCQ.COM, INC. CABLE NEWS NETWORK LP, LLLP
/s/ Jim R. Porter /s/ Lou Dobbs
- ---------------------- --------------------------------
Signature Signature
Jim R. Porter Lou Dobbs
- ---------------------- --------------------------------
(Print Name) (Print Name)
Chairman, CEO President
- ---------------------- --------------------------------
(Title) (Title)
PCQuote, Inc. hereby acknowledges its obligations under and agrees to
comply with the provisions of Paragraph 6 of this Agreement.
PCQUOTE, INC.
/s/ Jim R. Porter
- ----------------------
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Signature
Jim R. Porter
- ----------------------
(Print Name)
Chairman, CEO
- ----------------------
(Title)
14
