<PAGE>
As filed with the Securities and Exchange Commission on March 30, 2000
Registration No. 333-96013
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
E-STAMP CORPORATION
(Exact name of Registrant as specified in its charter)
----------------
<TABLE>
<CAPTION>
Delaware 5961 76-0518568
<S> <C> <C>
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
</TABLE>
850 Saginaw Drive, 2nd Floor
Redwood City, California, 94061
(650) 474-5800
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------
ROBERT H. EWALD
President and Chief Executive Officer
850 Saginaw Drive, 2nd Floor
Redwood City, California 94061
(650) 474-5800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
MICHELLE L. WHIPKEY
MARK D. BEARIAULT
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall hereafter 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 such Section 8(a),
may determine.
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<PAGE>
EXPLANATORY NOTE
The purpose of this Amendment No. 1 is solely to file Exhibit Number 10.22
to the Registration Statement as set forth below in Item 16(a) of Part II.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by E-Stamp
Corporation in connection with the sale of common stock being registered. All
amounts are estimates except the SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee................................................ $ 1,514
Blue sky qualification fees and expenses............................ $10,000
Printing and engraving costs........................................ $10,000
Legal fees and expenses............................................. $20,000
Accounting fees and expenses........................................ $10,000
Miscellaneous expenses.............................................. $ 3,486
Total............................................................... $55,000
</TABLE>
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a corporation to
include in its charter documents, and in agreements between the corporation and
its directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law.
Article IX of the Registrant's Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Registrant if
such person acted in good faith and in a manner reasonably believed to be in
and not opposed to the best interest of the Registrant, and, with respect to
any criminal action or proceeding, the indemnified party had no reason to
believe his or her conduct was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for
in the Registrant's Bylaws, and intends to enter into indemnification
agreements with any new directors and executive officers in the future.
Item 15. Recent Sales of Unregistered Securities
(a) During the past three years, the Registrant has issued unregistered
securities to a limited number of persons as described below:
(1) On September 3, 1997, we issued an aggregate of 2,500,000 shares of our
Series A Preferred Stock to accredited investors for an aggregate offering
price of $6,000,000.
(2) On July 7, 1998, we issued an aggregate of 4,188,000 shares of our
Series B Preferred Stock to accredited investors for an aggregate offering
price of $16,000,000.
(3) On July 26, 1999, we granted a warrant to a lender to purchase up to
48,496 shares of Common Stock at $8.25 per share, as adjusted for our stock
dividend.
(4) On August 3, 1999 and August 10, 1999, we issued an aggregate of
2,928,521 shares of our Series C Preferred Stock to accredited investors,
including a number of our existing preferred and common stockholders, for an
aggregate offering price of $30,193,051.
(5) On August 10, 1999, we granted a warrant to our placement agent for our
Series C Preferred Stock financing to purchase up to 21,235 shares of Series C
Preferred Stock at $10.31 per share.
II-1
<PAGE>
(6) From September 1996 to October 14, 1999, we have granted options to
purchase an aggregate of 8,768,822 shares of common stock to our directors,
executive officers, employees and consultants at a weighted exercise price of
$5.17, as adjusted for our stock dividend, under the Registrant's 1996 Stock
Option and Restricted Stock Plan the Registrant's 1999 Stock Plan and the
Registrant's 1996 Non-Employee Director Stock Option Plan, of which options to
purchase 1,041,451 shares, as adjusted for our September 1999 stock dividend,
were cancelled without exercise.
(7) In August 1999, we granted stock bonuses of an aggregate of 187,500
shares of common stock to one of our executive officers and one of our
directors, and we granted an option to purchase 62,500 shares of common stock
at an exercise price of $6.88 per share to one of our directors, in each case
as adjusted for our stock dividend.
(8) As of October 14, 1999, an aggregate of 5,392,359 shares of common stock
had been issued upon exercise of options under the Registrant's 1996 Stock
Option and Restricted Stock Plan at a weighted purchase price of $0.9917 per
share, and an aggregate of 294,920 shares had been issued upon exercise of
options under the Registrant's 1999 Stock Plan.
(9) On September 10, 1999, we issued an aggregate of 726,745 shares of our
common stock to two accredited investors at a purchase price of $6.88 per
share, as adjusted for our stock dividend. On September 10, 1999, these two
accredited investors also paid an aggregate of $168 for warrants to purchase
83,855 shares of common stock at an exercise price of $0.01 per share, as
adjusted for our stock dividend. These warrants were exercised on September 10,
1999.
(b) Except as indicated above, none of the foregoing transactions involved
any underwriters, underwriting discounts or commissions, or any public
offering, and the Registrant believes that each transaction described in
paragraphs (1) through (5) and in paragraph (7) above, was exempt from the
registration requirements of the Securities Act by virtue of Section 4(2)
thereof or Regulation D promulgated thereunder and that the transactions
described in paragraph (9) were exempt from the registration requirements of
the Securities Act by virtue of Regulation S promulgated thereunder. The
recipients in such transactions represented their intention to acquire the
securities for investment only and not with a view to or for sale in connection
with any distribution thereof, and appropriate legends were affixed to the
share certificates and instruments issued in such transactions. All recipients
had adequate access, through their relationships with the Registrant, to
information about the Registrant.
The stock issuances described in paragraph (8) above were not made pursuant
to a registration statement under the Securities Act, nor were the offer and
sale registered or qualified under any state securities laws. Although the
Registrant believed at the time that such offers and sales were exempt from
such registration or qualification, they may not have been exempt. As a result,
purchasers of such shares may have the right under the Securities Act or state
securities laws to rescind their purchases and thereby be entitled to return
such shares to the Registrant and receive back from the Registrant the full
consideration paid by such purchasers which aggregates approximately $5,732,000
plus interest. These shares are the subject of the rescission offer to which
this Registration Statement relates.
In addition, the Registrant may not have had an exemption from qualification
under state securities laws for the options issued under the Registrant's 1996
Stock Option and Restricted Stock Plan, the Registrant's 1999 Stock Plan and
the Registrant's 1996 Non-Employee Director Stock Option Plan. These options
are subject to rescission, and the Registrant intends to make a concurrent
rescission offer to the holder of those options. Under such rescission offer,
the Registrant could be required to make an aggregate payment of up to
approximately $260,000 relating to these options. There are no assurances that
the Registrant will not otherwise be subject to possible penalties or fines
relating to these issuances. The Registrant believes the rescission offers
could provide it with additional meritorious defenses to any such future
claims.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
3.1* Certificate of Incorporation of the Registrant.
3.2* Bylaws of the Registrant.
3.3* Form of Amended and Restated Certificate of Incorporation of
Registrant.
3.4* Form of Amended and Restated Bylaws of Registrant.
3.5* Certificates of Designation of Registrant relating to Series A
Preferred Stock.
3.6* Certificates of Designation of Registrant relating to Series B
Preferred Stock.
3.7* Certificate of Designation of Registrant relating to Series C
Preferred Stock.
3.8* Amendment to Certificate of Incorporation of the Registrant.
4.1* Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1* Form of Indemnification Agreement between the Registrant and each of
its directors and officers.
10.2* 1999 Stock Plan and form of agreements thereunder.
10.3* 1999 Employee Stock Purchase Plan and form of agreements thereunder.
10.4* 1999 Director Option Plan and form of agreements thereunder.
10.5* 1996 Stock Option and Restricted Stock Plan.
10.6* 1996 Non-Employee Director Stock Option Plan.
10.7* Second Amended and Restated Investors Rights Agreement.
10.8* Employment Agreement, dated March 29, 1996, between Registrant and
Nicole Ward (Eagan).
10.9* Employment Agreement, dated May 13, 1996, between Registrant and
Martin Pagel.
10.10* Employment Agreement, dated July 27, 1996, between Registrant and
Thomas Reinemer.
10.11* Promissory Note, dated May 30, 1999, between Registrant and Robert H.
Ewald.
10.12* Crypto iButton Service Provider Agreement dated August 21, 1998,
between Registrant and Dallas Semiconductor Corporation.
10.13+* Premium Partner Website Marketing Agreement dated July 1, 1999,
between Registrant and Microsoft Corporation.
10.14+* America Online Strategic Marketing Agreement dated November 13, 1998,
between Registrant and America Online.
10.15+* Turnkey/Inventory Agreement dated June 1, 1999, between Registrant and
Modus Media International.
10.16+* Agreement for Services dated June 27, 1997 between Registrant and
Pilot Network Services, Inc.
10.17* Sublease Agreement dated February 2, 1999 between the Registrant and
Electronics for Imaging, Inc.
10.18+* Advertising and Promotion Agreement dated May 14, 1999 between
Registrant and Yahoo!, Inc.
10.19+* Letter Agreement dated August 2, 1999 between Registrant and At Home
Corporation.
10.20+* Platinum Premier Partner Package Agreement dated June 25, 1999 between
Registrant, EarthLink Network, Inc. and EarthLink Operations, Inc.
10.21+* Services Agreement dated September 24, 1999 between Registrant and
Intuit Inc.
10.22++ Cobranding and Promotion Agreement dated December 10, 1999 between
Registrant and eBay Inc.
10.23** Promissory Note dated December 23, 1999, between Registrant and
Marcelo Gumucio.
10.24** Promissory Note dated January 14, 2000, between Registrant and Robert
H. Ewald.
10.25** Stock Pledge Agreement dated December 22, 1999 between Registrant and
Marcelo Gumucio.
10.26** Stock Pledge dated Janaury 14, 2000 between Registrant and Robert H.
Ewald.
23.1** Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
(see Exhibit 5.1).
23.2** Consent of Ernst & Young LLP, Independent Auditors.
24.1** Power of Attorney (Included on Page II-5).
</TABLE>
- ---------------------
*Incorporated by reference from Registration Statement No. 333-85359, as
amended, originally filed with the Securities and Exchange Commission on
August 17, 1999.
**Previously filed.
+The registrant obtained confidential treatment of certain portions of this
exhibit from the Commission. The omitted portions have been filed separately
with the Commission.
++The registrant is seeking confidential treatment of certain portions of this
exhibit from the Commission. The omitted portions have been filed separately
with the Commission.
II-3
<PAGE>
(b) Financial Statement Schedules
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
Item 17. Undertakings
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by a
director, officer or controlling person in connection with the securities being
registered hereunder, 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, as amended, the
registrant has duly caused this Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of San Mateo, State of California, on the 30th day of March 2000.
E-STAMP CORPORATION
/s/ Robert H. Ewald
By: _________________________________
Robert H. Ewald
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert H. Ewald President, Chief Executive March 30, 2000
____________________________________ Officer and Director
Robert H. Ewald (Principal Executive
Officer)
/s/ Anthony H. Lewis, Jr. Vice President and Chief March 30, 2000
____________________________________ Financial Officer
Anthony H. Lewis, Jr. (Principal Financial and
Accounting Officer)
* Chairman of the Board March 30, 2000
____________________________________
Marcelo A. Gumucio
* Director March 30, 2000
____________________________________
John V. Balen
* Director March 30, 2000
____________________________________
Thomas L. Rosch
Director
____________________________________
Michael Leitner
* Director March 30, 2000
____________________________________
Adam Wagner
* Director March 30, 2000
____________________________________
Rebecca Saeger
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director March 30, 2000
____________________________________
Robert J. Cresci
* Director March 30, 2000
____________________________________
Jerry Gramaglia
</TABLE>
/s/ Robert H. Ewald
*By: _____________________
Robert H. Ewald
Attorney-in-Fact
II-6
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
3.1* Certificate of Incorporation of the Registrant.
3.2* Bylaws of the Registrant.
3.3* Form of Amended and Restated Certificate of Incorporation of
Registrant.
3.4* Form of Amended and Restated Bylaws of Registrant.
3.5* Certificates of Designation of Registrant relating to Series A
Preferred Stock.
3.6* Certificates of Designation of Registrant relating to Series B
Preferred Stock.
3.7* Certificate of Designation of Registrant relating to Series C
Preferred Stock.
3.8* Amendment to Certificate of Incorporation of the Registrant.
4.1* Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1* Form of Indemnification Agreement between the Registrant and each of
its directors and officers.
10.2* 1999 Stock Plan and form of agreements thereunder.
10.3* 1999 Employee Stock Purchase Plan and form of agreements thereunder.
10.4* 1999 Director Option Plan and form of agreements thereunder.
10.5* 1996 Stock Option and Restricted Stock Plan.
10.6* 1996 Non-Employee Director Stock Option Plan.
10.7* Second Amended and Restated Investors Rights Agreement.
10.8* Employment Agreement, dated March 29, 1996, between Registrant and
Nicole Ward (Eagan).
10.9* Employment Agreement, dated May 13, 1996, between Registrant and
Martin Pagel.
10.10* Employment Agreement, dated July 27, 1996, between Registrant and
Thomas Reinemer.
10.11* Promissory Note, dated May 30, 1999, between Registrant and Robert H.
Ewald.
10.12* Crypto iButton Service Provider Agreement dated August 21, 1998,
between Registrant and Dallas Semiconductor Corporation.
10.13+* Premium Partner Website Marketing Agreement dated July 1, 1999,
between Registrant and Microsoft Corporation.
10.14+* America Online Strategic Marketing Agreement dated November 13, 1998,
between Registrant and America Online.
10.15+* Turnkey/Inventory Agreement dated June 1, 1999, between Registrant and
Modus Media International.
10.16+* Agreement for Services dated June 27, 1997 between Registrant and
Pilot Network Services, Inc.
10.17* Sublease Agreement dated February 2, 1999 between the Registrant and
Electronics for Imaging, Inc.
10.18+* Advertising and Promotion Agreement dated May 14, 1999 between
Registrant and Yahoo!, Inc.
10.19+* Letter Agreement dated August 2, 1999 between Registrant and At Home
Corporation.
10.20+* Platinum Premier Partner Package Agreement dated June 25, 1999 between
Registrant, EarthLink Network, Inc. and EarthLink Operations, Inc.
10.21+* Services Agreement dated September 24, 1999 between Registrant and
Intuit Inc.
10.22++ Cobranding and Promotion Agreement dated December 10, 1999 between
Registrant and eBay Inc.
10.23** Promissory Note dated December 23, 1999, between Registrant and
Marcelo Gumucio.
10.24** Promissory Note dated January 14, 2000, between Registrant and Robert
H. Ewald.
10.25** Stock Pledge Agreement dated December 22, 1999 between Registrant and
Marcelo Gumucio.
10.26** Stock Pledge dated Janaury 14, 2000 between Registrant and Robert H.
Ewald.
23.1** Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
(see Exhibit 5.1).
23.2** Consent of Ernst & Young LLP, Independent Auditors.
24.1** Power of Attorney (Included on Page II-5).
</TABLE>
- ---------------------
*Incorporated by reference from Registration Statement No. 333-85359, as
amended, originally filed with the Securities and Exchange Commission on
August 17, 1999.
**Previously filed.
+The registrant obtained confidential treatment of certain portions of this
exhibit from the Commission. The omitted portions have been filed separately
with the Commission.
++The registrant is seeking confidential treatment of certain portions of this
exhibit from the Commission. The omitted portions have been filed separately
with the Commission.
<PAGE>
EXHIBIT 10.22
CO-BRANDING AND PROMOTION AGREEMENT
This Co-Branding and Promotion Agreement (the "Agreement") is entered into
as of December 10, 1999 (the "Effective Date") by and between eBay Inc., a
Delaware corporation with its principal place of business at 2125 Hamilton
Avenue, San Jose, California 95125 ("eBay"), and E-Stamp Corporation, a Delaware
corporation with its principal place of business at 2855 Campus Drive, Suite
100, San Mateo, California 94403 ("E-Stamp").
Background
A. eBay operates a website for the online, person-to-person trading of
various items in an auction format.
B. E-Stamp is an online electronic provider of United States Postal
Service ("USPS") postage.
C. eBay and E-Stamp desire to cooperate to develop and launch a co-branded
area on E-Stamp's website, so as to allow eBay Users (defined below) to use the
E-Stamp Service (defined below) and related co-branded products in a convenient
manner. Further, eBay desires to promote E-Stamp as the exclusive U.S. online
electronic provider of USPS postage for eBay Users on the eBay Site (defined
below). This relationship is further described below and is subject to the terms
and conditions set forth in this Agreement.
Agreement
1. Certain Definitions.
1.1 "Acquired User" means an eBay User that: (i) (a) links from the eBay
Site to the E-Stamp Site (including any Co-Branded Pages, defined below), or (b)
is referred to E-Stamp by eBay in some other manner that is traceable by E-
Stamp, and (ii) registers for or purchases any product or service offered by E-
Stamp. For clarification, an eBay User who at one time registers for a product
or service, and then subsequently purchases a product from E-Stamp (or first
purchases, and then registers, whatever the case may be) shall be deemed a
single Acquired User, and shall not be "double-counted."
1.2 "Co-Branded Pages" means the eBay/E-Stamp co-branded pages hosted by
E-Stamp, which pages will be designed, implemented and maintained by E-Stamp,
subject to eBay's prior approval, which shall not be unreasonably withheld or
delayed.
1.3 "Co-Branded Service Products" means the products provided by E-Stamp
that are directly related to the E-Stamp Service, including without limitation,
online postage and labels, and co-branded using the eBay Marks, as further
described in this Agreement.
1.4 "Co-Branded Supplies" means postage supplies and other products
provided by E-Stamp that are ancillary to the E-Stamp Service, including without
limitation, postage scales, envelopes and Avery labels co-branded using the eBay
Marks, as further described in this Agreement.
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
1.
<PAGE>
1.5 "Cumulative Acquired Users" means the total number of Acquired Users
that have been attained by E-Stamp during a Year.
1.6 "eBay Content" means all content or information, in any medium,
provided by eBay for use on the Co-Branded Pages, including without limitation
any listing data, hyperlinks, text, music, sound, photographs, video, graphics,
other data or software.
1.7 "eBay Marks" mean the domain names, trademarks and logos and other
branding elements designated by eBay from time to time for use under this
Agreement.
1.8 "eBay Site" means: (i) the website owned and operated by eBay and
accessible at www.ebay.com, and (ii) any website(s) that eBay may spin off from
www.ebay.com by moving one of its current [***] top-level categories (excluding
[***]) (as of the Effective Date, the [***] are: [***]) with all of the
corresponding listings in such moved category, and where such spun-off site
cannot be accessed by eBay Users from www.ebay.com. "eBay Site" shall not
include any current or future [***] or [***] in which eBay currently
participates or may participate in the future.
1.9 "eBay User" means any person who accesses any page on the eBay Site.
1.10 "E-Stamp Content" means any promotional content or information in
any medium provided by or on behalf of E-Stamp to eBay for eBay's use in
promoting the E-Stamp Service on the eBay Site.
1.11 "E-Stamp Marks" means all E-Stamp domain names, trademarks and logos
used by E-Stamp in the course of operating the E-Stamp Site and providing the E-
Stamp Services to its customers.
1.12 "E-Stamp Additional Service" means any product or service, except
the E-Stamp Service (defined below), which E-Stamp develops and makes generally
available to its customers.
1.13 "E-Stamp Service" means E-Stamp's service that enables users to
purchase online electronic USPS postage through the USPS Information-Based
Indicia Program ("IBIP").
1.14 "E-Stamp Site" means the website owned and operated by E-Stamp and
accessible at www.e-stamp.com and www.estamp.com, or any successor thereto,
--------------- --------------
which contains the E-Stamp-branded (i.e., non-co-branded) version of the E-Stamp
Service.
1.15 "E-Stamp Starter Kit" means the starter package that includes the E-
Stamp electronic vault and may also include a software CD, an address matching
CD, hardware and software manuals, complimentary envelopes and labels, and/or
other informational materials.
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
2.
<PAGE>
1.16 "Launch Pad" means the Co-Branded Page(s) to which an eBay User is
initially transported upon clicking on any E-Stamp link on the eBay Site. 1.17
"Marks" means the E-Stamp Marks or eBay Marks, as applicable.
1.18 "Quarter" means a calendar quarter; provided, however that the first
(1st) Quarter of this Agreement shall mean the time period from the Effective
Date through March 31, 2000 and the twelfth (12th) Quarter shall mean the time
period from October 1, 2002 through December 9, 2002.
1.19 "Year" means a calendar year; provided, however, that the first
(1st) Year of this Agreement shall mean the time period from the Effective Date
through December 31, 2000, and the third (3rd) Year of this Agreement shall mean
the time period from January 1, 2002 to December 9, 2002.
2. Development and Implementation.
2.1 Co-Branded Pages. Within sixty (60) days of the Effective Date, E-
Stamp shall develop and launch the Launch Pad and other Co-Branded Pages,
subject to eBay prior review and approval, which approval shall not be
unreasonably withheld or delayed. E-Stamp shall be responsible for all
development, hosting and other costs associated with the Co-Branded Pages. E-
Stamp agrees that all information provided by or on behalf of E-Stamp, including
without limitation, information relating to the E-Stamp Service and the E-Stamp
Additional Services, will be: (i) complete and accurate, and (ii) accessible to
all eBay Users on the Launch Pad and elsewhere on the Co-Branded Pages. Further,
unless otherwise directed by eBay: (a) the Co-Branded Pages shall include all of
the eBay Content provided by eBay to E-Stamp, as well as all of the content
displayed on the E-Stamp Site as mutually agreed to by the parties, and (b) the
E-Stamp Content shall be updated to keep the Co-Branded Pages in parity with the
E-Stamp Site. eBay agrees that the eBay Content will be complete and accurate.
The parties expressly acknowledge and agree that no advertising will be placed
on the Co-Branded Pages, unless the parties otherwise mutually agree. The Co-
Branded Pages may not be changed, modified or deleted without eBay's prior
written approval (which shall not be unreasonably withheld or delayed), except
for minor error-correction and other similar updates.
2.2 Co-Branded Service Products.
(a) Address Labels. The parties will use commercially reasonable
efforts to develop and distribute address labels that include eBay Marks
within [***] days of the Effective Date. E-Stamp agrees to make such labels
available to Acquired Users and other eBay Users on an ongoing basis during
the term of this Agreement.
(b) Postage. If and when the USPS approves the inclusion of third-
party branding elements (i.e., in addition to E-Stamp and USPS branding
elements) on electronic postage, the parties will use commercially
reasonable efforts to develop and distribute electronic postage that
includes eBay Marks within [***] days following such approval. E-Stamp
agrees to make such electronic postage available to Acquired Users and
other eBay Users on an ongoing basis during the term of this Agreement.
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confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
3.
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(c) Approval Required. The co-branding of both the labels and
postage as described above will be subject to: (i) the approval of eBay, E-
Stamp and the USPS, respectively, and (ii) applicable laws, regulations and
USPS requirements. eBay acknowledges that the E-Stamp software and service,
the E-Stamp Internet postage indicia and postal labels and supplies are
regulated by the USPS, and approvals for the development or revision
thereof are granted at the sole discretion of the USPS.
2.3 Co-Branded Supplies Business. The parties will cooperate to launch a
co-branded supplies business within [***] days following the Effective Date.
Such business is expected to involve the development of Co-Branded Supplies and
other products to be distributed and sold: (a) in an eBay/E-Stamp co-branded
online supply store which will be hosted, operated, managed and maintained by
E-Stamp as a component of the Co-Branded Pages, (b) on other web sites, (c) via
mail order, and/or (d) in brick and mortar locations. E-Stamp shall not produce,
promote or distribute any Co-Branded Products or launch or modify the co-branded
online supply store without eBay's prior written approval, which approval shall
not be unreasonably withheld or delayed. eBay will provide links to such co-
branded supply store on the eBay Site. Further, E-Stamp will retain all revenue
generated through sales on the online store, subject to E-Stamp's payment of the
revenue share to eBay, as further provided in Section 8.1(c) ("Revenue Sharing
Fee").
2.4 Changes. E-Stamp shall notify eBay if: (i) E-Stamp changes or adds
(excluding minor changes such as if E-Stamp adds the ability to support a new
printer or software application) any functionality to the E-Stamp Service, or
(ii) develops and makes available E-Stamp Additional Services to any of its
users. E-Stamp shall within thirty (30) days of the proposed offer date, offer
eBay the ability to include the E-Stamp Additional Services or additional
functionality on the Co-Branded Pages, and if eBay agrees to such modification
of services within ninety (90) days following E-Stamp's offer, E-Stamp shall
implement such changes or additions with respect to the Co-Branded Service
Products and make such changes available on the Co-Branded Pages within thirty
(30) days following eBay's agreement.
2.5 Rebranding. If eBay modifies the eBay Marks and requests E-Stamp to
modify the Co-Branded Pages, Co-Branded Service Products or Co-Branded Supplies,
E-Stamp shall modify such items as soon as commercially practicable. Further,
the parties agree to discuss the development of additional branded versions of
the Co-Branded Pages, Co-Branded Service Products and Co-Branded Supplies which
would contain the branding elements of eBay's affiliates; provided that nothing
in this Section 2.5 ("Rebranding") shall obligate E-Stamp to negotiate, enter
into an agreement or otherwise establish a relationship with eBay regarding such
additional branded versions.
2.6 Navigation. E-Stamp shall not use any interstitials, pop-up windows,
other intermediate steps or any other technology or content which acts as a
barrier to the transition of an eBay User from the eBay Site to the Launch Pad,
nor shall E-Stamp otherwise frame the Co-Branded Pages or use any other
technology which interferes with or affects the page layout of such pages. All
Co-Branded Pages shall contain a prominent link back to the eBay Site, which,
when clicked upon, returns the user to the page on the eBay Site that the user
last viewed prior to viewing a Co-Branded Page, or as otherwise specified by
eBay in writing. The Co-Branded Pages shall not include any links to any pages
other than the Co-Branded Pages and the eBay
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Site, except for a link to the E-Stamp.com Account and USPS Licensing Setup page
(where such page will only link to other Co-Branded Pages, the eBay Site or to
E-Stamp's copyright information page).
2.7 User Relations. E-Stamp shall be solely responsible for providing
all customer support regarding the E-Stamp Service and the Co-Branded Pages, and
eBay may redirect to E-Stamp any associated customer support inquiries. E-Stamp
shall provide eBay with a toll-free telephone number and email address that eBay
may provide to eBay Users when redirecting such customer support inquiries to E-
Stamp. E-Stamp shall also designate dedicated customer support and technical
support contacts for eBay and provide eBay with the names and contact
information of these individuals. E-Stamp shall have sole control over the user
agreement that governs the E-Stamp Service but shall consider eBay's input, and
E-Stamp shall have the sole responsibility for dealing with breaches of such
user agreement. If eBay has an issue with the user agreement or E-Stamp's
enforcement of it, the parties shall discuss such issues in good faith. Further,
subject to the provisions of Section 6 ("Customer Information") and applicable
laws, rules and regulations, E-Stamp's privacy policy shall make such
disclosures, and E-Stamp shall obtain such user consents, as necessary to make
the disclosures to eBay regarding Acquired Users and other eBay Users as
required by this Agreement. As further provided in Section 3 ("Most Favored
Customer"), all Acquired Users shall be treated at least as favorably in all
respects (including without limitation with respect to pricing, quality of
service, and customer support responsiveness) as E-Stamp treats any users of the
E-Stamp Service, the E-Stamp Additional Services and the E-Stamp Site. Further,
in order to promote focus on customer service and provide a high level of
customer satisfaction to the Acquired Users, E-Stamp's customer support and
service will meet the customer support standards described in Exhibit A
("Performance Standards") attached hereto.
2.8 Minimum Site Performance. During the term of the Agreement, the E-
Stamp Site and all related technology necessary to operate the E-Stamp Site will
meet the performance standards described in Exhibit A ("Performance Standards")
attached hereto.
2.9 International Opportunities. In the event E-Stamp decides to offer
its product or services in international markets, E-Stamp may notify eBay in
writing of such international plans once E-Stamp has commenced the applicable
formal approval process in the relevant international market. After eBay has
been notified of such plans, eBay agrees to discuss international online
electronic postage opportunities in such market with E-Stamp, subject to eBay's
then-existing contractual obligations. Notwithstanding the foregoing, nothing in
this Section 2.9 ("International Opportunities") shall obligate eBay to
negotiate, enter into an agreement or otherwise establish a relationship with E-
Stamp regarding such opportunities.
3. Most Favored Customer.
3.1 Preferential Pricing and Service. During the term of this Agreement,
the pricing and service performance of the E-Stamp Service provided to eBay
Users will be [***] than that offered to any other users of E-Stamp's services.
In order to maximize the penetration, customer satisfaction, and benefit of the
E-Stamp Service to eBay Users, E-Stamp will charge each Acquired User a maximum
monthly convenience fee (the "Monthly Convenience Fee") equal to the lesser of:
(i) $24.99 per month, and (ii) the
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confidential redacted portion has been omitted and filed separately with the
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5.
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maximum monthly convenience fee that any user of the E-Stamp Service would be
charged under any other pricing plan offered by E-Stamp.
3.2 Exceptions. E-Stamp's preferential pricing and service obligations
described above will not apply to:
(a) E-Stamp's product and service offerings in conjunction with:
(i) [***], a product of [***], (ii) special promotional offers to [***]
purchasers or subscribers (provided that such promotions shall be limited to
[one (1)] per calendar [***] and a maximum duration of [***] each), or (iii)
other similar promotions which require a user to buy a product or subscribe to a
service (in either case, where the manufacturer's suggested retail price (or in
the case of a service, the service provider's aggregate first year fees) exceeds
[***] dollars ($[***]) in order to receive the E-Stamp Starter Kit at no charge;
or
(b) E-Stamp's agreements with corporate customers (defined as any
business entity with more than [two hundred (200)] employees) in which a flat
convenience fee is charged; provided, however, that such agreements shall
pertain to such customers' employees use of the E-Stamp Service for corporate
purposes only.
3.3 Effect of Breach. E-Stamp expressly acknowledges and agrees that,
(a) should E-Stamp breach any provision of this Section 3 ("Most Favored
Customer") on three (3) or more separate occasions during the term of this
Agreement (regardless of cure but subject to the notice provisions set forth
herein), or (b) should E-Stamp fail to cure any breach of this Section 3 ("Most
Favored Customer") within thirty (30) days following notice thereof by eBay,
eBay shall no longer be bound by its exclusivity obligations as described in
Section 7 ("Exclusivity"). With regard to item (a) above, an "occasion" shall
mean each time eBay has provided E-Stamp with written notice of E-Stamps' breach
of Section 3 ("Most Favored Customer") by offering preferential pricing or
service performance of the E-Stamp Service to non-eBay Users, including, for
example, the offering by means of a marketing campaign, promotion, arrangement
with a business partner, or promotion to any group of users. To clarify, each
instance of offering such preference to a group of users shall only count as one
occasion, and shall not be counted by the number of users.
3.4 Product and Service Discounts. Without limiting E-Stamp's
obligations described in Section 3.1 ("Preferential Pricing and Service"), E-
Stamp agrees to: (i) [***] the E-Stamp Starter Kit (and any successors thereto)
[***] for eBay [***] and other eBay sellers as eBay and E-Stamp may mutually
agree, and (ii) to provide a [***] percent ([***]%) discount off of the E-Stamp
Start Kit (and any successors thereto) license fee and/or other comparable
promotional offer to all other eBay Users.
4. Promotion and Integration.
4.1 eBay Promotion. eBay will use commercially reasonable efforts to
integrate the E-Stamp Content into the eBay Site, including placing the E-Stamp
Content on the eBay home page at www.ebay.com, and in other areas of the eBay
------------
Site as the parties mutually agree. Subject to the terms and conditions of this
Agreement (including Section 4.3 ("Guidelines")), eBay will
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confidential redacted portion has been omitted and filed separately with the
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6.
<PAGE>
promote the E-Stamp Service to eBay Users by means of a combination of certain
fixed placements, rotating placements, and direct marketing, as described below.
E-Stamp agrees that all E-Stamp links on the eBay Site shall link to the Launch
Pad.
(a) Fixed Placements. As soon as practicable after execution of
the Agreement, eBay will place E-Stamp Content in the following areas of the
eBay Site (the "Fixed Placements"):
[***] page ([***])
-------------------
[***] page
([***])
------------------------------------------------------------
[***] page ([***])
-------------------------------------------------------
[***] page ([***])
------------------------------------------------
[***] page ([***])
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(b) Rotating Placements. The parties further agree that after the
Agreement is executed, the E-Stamp Content may appear on one or more of the
following pages or services of the eBay Site, or on other mutually agreed upon
pages of the eBay Site (the "Rotating Placements"):
[***] emails
[***] emails
[***] page
[***] page
[***] page
[***] page
[***]
(c) Other Promotions. In addition, eBay will, at least once per
Quarter, provide a dedicated E-Stamp promotion to eBay PowerSellers and other
eBay top sellers (but only to such PowerSellers and top sellers who have elected
to receive such promotional emails), as the parties mutually agree.
4.2 E-Stamp Content Delivery. E-Stamp will deliver the E-Stamp Content
to eBay in a mutually agreeable format and on a mutually acceptable uploading
and refresh schedule. eBay may refuse delivery of any E-Stamp Content delivered
in an unsupported format, and may reject any E-Stamp Content that does not
conform to the requirements of eBay's then current policies relating to content,
as such policies are applied to third parties supplying content to eBay.
4.3 Guidelines. eBay agrees to consult E-Stamp regarding the text and
placement of the E-Stamp Content on the eBay Site; provided, however, that eBay
will retain final approval over the E-Stamp Content and the placement of such E-
Stamp Content on the eBay Site. Without limiting the foregoing, if eBay deletes
or modifies any page containing a Fixed Placement, or elects to remove the E-
Stamp Content from one or more Fixed Placements, eBay will provide E-Stamp
comparable promotion in another area or areas of the eBay Site, or through the
use of targeted emails. This Agreement shall not restrict eBay's ability or
discretion to change or otherwise modify any of eBay's web sites or pages
thereof.
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confidential redacted portion has been omitted and filed separately with the
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7.
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4.4 Integration of Browser-Based Service. eBay will use commercially
reasonable efforts to integrate the E-Stamp browser-based service into the eBay
Site promptly following its commercial release (provided that eBay approves such
interface and service). Such service will be co-branded as permitted by the USPS
(unless eBay elects not to include eBay Branding Elements in such service) and
will reside on E-Stamp's servers.
4.5 Acquisitions. Should eBay acquire an entity that maintains a web
site with then-current monthly traffic equaling at least [***] percent ([***]%)
of the eBay Site's then-current monthly traffic, then, as soon as commercially
practicable following the consummation of such acquisition, eBay agrees to
discuss opportunities for E-Stamp to promote and advertise its service on such
web site, subject to eBay's then-existing contractual obligations.
Notwithstanding the foregoing, nothing in this Section 4.5 ("Acquisitions")
shall obligate eBay to negotiate, enter into an agreement or otherwise establish
a relationship with E-Stamp regarding such opportunities.
5. Licenses and Standards.
5.1 Content Licenses. eBay hereby grants to E-Stamp a non-exclusive
license to use, reproduce, distribute, create derivative works of (only as
necessary to build, operate and maintain the Co-Branded Pages), publicly
perform, publicly display and digitally perform the eBay Content in or in
conjunction with the Co-Branded Pages. E-Stamp hereby grants to eBay a non-
exclusive, license to use, reproduce, distribute, create derivative works of
(only as necessary to promote the E-Stamp Service in a manner consistent with
this Agreement), publicly display, publicly perform and digitally perform the E-
Stamp Content on the eBay Site or otherwise as reasonably appropriate to
advertise and promote the E-Stamp Service and the Co-Branded Pages.
5.2 Content Ownership. Except as otherwise provided in this Agreement,
as between eBay and E-Stamp: (i) eBay and its suppliers retain all rights, title
and interest in and to all intellectual property rights embodied in or
associated with the eBay Content, and (ii) E-Stamp and its suppliers retain all
rights, title and interest in and to all intellectual property rights embodied
in or associated with the E-Stamp Content. There are no implied licenses under
this Agreement, and any rights not expressly granted to a licensee hereunder are
reserved by the licensor or its suppliers. Neither party shall exceed the scope
of the licenses granted hereunder.
5.3 Trademark Licenses. eBay hereby grants to E-Stamp a non-exclusive,
worldwide license to use the eBay Marks in links on and promotions of the Co-
Branded Pages and, subject to eBay prior approval, in the Co-Branded Service
Products and Co-Branded Supplies described hereunder. E-Stamp hereby grants to
eBay a non-exclusive, worldwide license to use the E-Stamp Marks in links on and
promotions of the Co-Branded Pages.
5.4 Trademark Restrictions. The Mark owner may terminate the foregoing
trademark license if, in its reasonable discretion, the licensee's use of the
Marks tarnishes, blurs or dilutes the quality associated with the Marks or the
associated goodwill and such problem is not cured within ten (10) days of notice
of breach; alternatively, instead of terminating the license in total, the owner
may specify that certain licensee uses may not contain the Marks. Title to and
ownership of the owner's Marks shall remain with the owner. The licensee shall
use the Marks exactly in the form provided and in conformance with any trademark
usage policies. The
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confidential redacted portion has been omitted and filed separately with the
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8.
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licensee shall not take any action inconsistent with the owner's ownership
of the Marks, and any benefits accruing from use of such Marks shall
automatically vest in the owner. The licensee shall not form any combination
marks with the other party's Marks other than the domain name for the Co-Branded
Pages (the "Domain Name") (if applicable). If the Domain Name is deemed a
combination mark, neither party shall use the Domain Name for any purpose except
as expressly provided herein or attempt to register the Domain Name with any
government office, and the parties will jointly cooperate on any enforcement
action of infringement of the Domain Name.
5.5 Limits on Sublicensing. All license rights (under any applicable
intellectual property right) granted herein are not sublicenseable, transferable
or assignable, except as otherwise provided herein.
5.6 Content and Services Standards. eBay shall not provide any eBay
Content, and E-Stamp shall not provide any E-Stamp Content, that: (i) infringes
any third party's copyright, patent, trademark, trade secret or other
proprietary rights or rights of publicity or privacy; (ii) violates any law,
statute, ordinance or regulation (including without limitation the laws and
regulations governing export control, unfair competition, anti-discrimination or
false advertising); (iii) is defamatory, trade libelous, unlawfully threatening
or unlawfully harassing; (iv) is obscene, harmful to minors or child
pornographic; (v) contains any viruses, Trojan horses, worms, time bombs,
cancelbots or other computer programming routines that are intended to damage,
detrimentally interfere with, surreptitiously intercept or expropriate any
system, data or personal information; or (vi) is materially false, misleading or
inaccurate.
6. Customer Information.
6.1 Collection Limitations. Any information that E-Stamp obtains from
the Acquired Users ("Customer Information") will be limited to information
reasonably related to the purchase of U.S. online electronic postage through the
USPS IBIP under this Agreement or otherwise required to use the E-Stamp Service
or E-Stamp Additional Services, including without limitation, information
required to be obtained by any laws, regulations or USPS requirements.
6.2 Use Limitations. E-Stamp will neither use (nor permit any third
party to use) Customer Information for any purpose other than to provide or
market its services to the Acquired Users; provided that neither E-Stamp nor any
third party will use Customer Information to market any products or services
(excluding the E-Stamp Starter Kit and E-Stamp Service) to Acquired Users where
such product or service is then currently: (i) offered by eBay or a third party
with whom eBay has a contractual relationship that could include such product or
services, or (ii) a product or service promoted by eBay to its members, except
that E-Stamp may market the multi-carrier shipping services referred to in
Section 7.3(b) (Multi-Carrier Shipping - Third Party Services") so long as such
marketing does not include direct communications targeted to the Acquired Users.
6.3 Use Subject to Privacy Policy. E-Stamp further agrees to use such
Customer Information only as authorized by the Acquired Customer and subject to
E-Stamp's reasonable privacy policy, such privacy policy to be adequately
displayed throughout the E-Stamp Site and the Co-Branded Pages. E-Stamp will
neither use Customer Information to target communications
9.
<PAGE>
to the Acquired Users (or facilitate the same on behalf of third parties)
without the express written permission from eBay and opt-in agreement from the
Acquired Users, nor will E-Stamp solicit or facilitate such solicitation by any
third party of Acquired Users as a result of their status as eBay Users, and E-
Stamp will explicitly not refer to Acquired Users as "eBay Users" or "eBay
members" (or any such reference) in any such promotion, except with the prior
written consent of eBay.
6.4 eBay Approval Required for Certain Disclosures. E-Stamp agrees not
to sell, rent, lease or otherwise disclose the Customer Information without
eBay's prior written consent (such consent to be in eBay's sole discretion),
unless such Customer Information is disclosed as part of a one-time rental of
such Customer Information where: (i) the Acquired Users constitute less than
twenty percent (20%) of the aggregate list, (ii) the identity of any individual
user is not associated with such user's status as an eBay User, and (iii) such
list is not made available to an eBay Service Competitor (as defined in Section
7.2 ("Restrictions on E-Stamp")). Notwithstanding the foregoing, E-Stamp will:
(i) be permitted to use and disclose Customer Information as required by any
laws, regulations or USPS requirements, (ii) provide eBay with information
reasonably requested and necessary to support the calculation of the payments
due to eBay in Section 8 ("Payment Terms"), and (iii) provide eBay reasonable
access to E-Stamp's database of customers (and related information) who have
signed up for the E-Stamp service through the eBay Site or eBay advertising.
6.5 Effect of Multi-Carrier Shipping Relationships. In the event eBay
establishes a relationship for a multi-carrier shipping service with a third
party, eBay will contractually require such third party not to use customer
information acquired from eBay Users by such third party to directly target
communications regarding USPS IBIP electronic online postage.
7. Exclusivity.
7.1 Restrictions on eBay.
(a) No Promotion. During the term of the Agreement, eBay will not,
on the eBay Site (excluding the pages and content on the eBay Site controlled by
eBay Users), promote or directly link to any E-Stamp Competitor's (as defined
below) service that allows users to purchase USPS electronic postage online
through IBIP; provided, that: (i) E-Stamp is among the top [***] U.S. online
electronic postage providers of USPS postage, as determined by independent third
parties and in light of the product offerings, pricing structure, the number and
average yearly postage purchases of E-Stamp customers, customer service and
satisfaction, and site performance, (ii) E-Stamp has not breached Section 3
("Most Favored Customer") on three (3) or more occasions during the term of this
Agreement (regardless of cure, but subject to written notice), and (iii) E-Stamp
has not failed to cure any material breach of this Agreement within thirty (30)
days following notice thereof by eBay.
(b) Definitions. An "E-Stamp Competitor" shall mean the following
entities (excluding any subsidiaries of such entities): (i) Stamps.com [***],
(ii) Neopost, and (iii) Pitney Bowes. The list of E-Stamp Competitors may be
updated from time to time with companies or divisions of companies whose primary
function is to allow users to purchase USPS electronic postage online through
IBIP, where such
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confidential redacted portion has been omitted and filed separately with the
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10.
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updating is subject to eBay's approval, which approval shall not be unreasonably
withheld or delayed. "Directly link" shall mean a link which takes a user
directly to the URL (page) of a service that allows users to purchase, enroll
in a service to purchase, or download products which enable the purchase of USPS
electronic postage online through IBIP (a "Competitive URL").
(c) Clarification. As clarification, if a division or subsidiary
of a company is deemed to be an E-Stamp Competitor, eBay may not directly link
to the Competitive URL of the division or subsidiary of such company; however,
eBay is in no way restricted from linking to any of such company's other pages
on such company's web site that provide other services, despite the fact that a
user may access the Competitive URL via other links on such company's web site.
As further clarification, the USPS and expedited freight and/or shipping
companies such as Federal Express and the United Parcel Service are not E-Stamp
Competitors.
7.2 Restrictions on E-Stamp. During the term of the Agreement, E-Stamp
will promote eBay as its exclusive partner with respect to online listing and
trading and will not promote its products or services in conjunction with the
online listing and trading services of any other party ("eBay Service
Competitors"); provided that: (i) eBay is among the top [***] U.S. online
listing and trading providers, as determined by independent third parties based
upon product offerings, the number and average yearly transactions, customer
service, and customer satisfaction, and (ii) eBay has not failed to cure any
material breach of the Agreement within thirty (30) days following notice
thereof by E-Stamp. In order to promote focus on customer service and provide a
high level of customer satisfaction, E-Stamp also agrees [***] This Section 7.2
("Restrictions on E-Stamp") will not restrict E-Stamp's existing rights and
obligations with Microsoft, Yahoo! or Excite@Home. eBay acknowledges that E-
Stamp retains a third party to assist with E-Stamp's Internet banner
advertising. E-Stamp agrees to use commercially reasonable efforts to ensure
that such third party does not place banner ads on eBay Service Competitor web
sites and, in the event eBay notifies E-Stamp of banner ads running on an eBay
Service Competitor's web site in violation of this Section 7.2 ("Restrictions on
E-Stamp"), E-Stamp will use commercially reasonable efforts to cease such
advertising within thirty (30) days of such notification. Notwithstanding the
foregoing, E-Stamp will not advertise its service on the online listing and
trading web site of any eBay Service Competitor during the first [***] months of
the term of the Agreement. As of the Effective Date, the eBay Service
Competitors are listed on Exhibit B ("eBay Service Competitors") and such list
may be updated from time to time during the term of the Agreement, where such
updating is subject to E-Stamp's approval, such approval not to be unreasonably
withheld or delayed.
7.3 Multi-Carrier Shipping.
(a) [***] E-Stamp acknowledges that eBay has an existing
contractual relationship with [***]. Subject to eBay's contractual obligations,
eBay will use commercially reasonable efforts to [***] through the [***]
that is made available to eBay Users.
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(b) Third Party Services. eBay agrees that Section 7.2
("Restrictions on E-Stamp") will not prevent E-Stamp from advertising or
marketing the E-Stamp Service on an eBay Service Competitor's web site solely
through a multi-carrier shipping interface offered by a third party that
contains numerous shipping services; provided that E-Stamp does not offer more
favorable pricing on the E-Stamp Service to users acquired through such
interface than that offered to Acquired Users, as further provided in Section 3
("Most Favored Customer"). Further, E-Stamp agrees that Section 7.1
("Restrictions on eBay") will not prevent eBay from advertising or marketing a
multi-carrier shipping service where offering users the ability to purchase IBIP
online electronic postage is not the primary function of such service, provided
that eBay will not advertise or market a multi-carrier shipping service, if, at
the time eBay desires to advertise or market such service, the company offering
such service is controlled by an E-Stamp Competitor. Nothing in this Section
7.3(b) ("Multi-Carrier Shipping - Third Party Services") will prevent eBay from
advertising or marketing a multi-carrier shipping service that is not controlled
by an E-Stamp Competitor but which contains an E-Stamp Competitor's service
integrated in such interface. Further, eBay will not be in breach of the
Agreement if eBay continues performing under an existing relationship with a
multi-carrier shipping service that was not controlled by an E-Stamp Competitor
at the inception of such relationship with eBay.
(c) Future Discussions. In the event that E-Stamp partners with a
multi-carrier shipping service, E-Stamp may notify eBay in writing of such
arrangement and the existence of a functional product, and eBay agrees, after
such notification, to discuss multi-carrier shipping service opportunities with
E-Stamp and/or such service, subject to eBay's existing contractual obligations.
Notwithstanding the foregoing, nothing in this Section 7.3(c) ("Multi-Carrier
Shipping - Future Discussions") shall obligate eBay to negotiate, enter into an
agreement or otherwise establish a relationship with E-Stamp or such service
regarding such opportunities.
7.4 Breach of Exclusivity. Each party agrees that should it breach any
provision of this Section 7 ("Exclusivity") on three (3) or more separate
occasions during the term of this Agreement (regardless of cure but subject to
the notice provisions set forth herein), the non-breaching party shall no longer
be bound by its exclusivity obligations as described in this Section 7
("Exclusivity"). If a party materially breaches Section 7 ("Exclusivity") and
does not cure such breach within a period of thirty (30) days following written
notice thereof from the non-breaching party, then the non-breaching party shall
have the right to terminate the Agreement by providing written notice of
termination to the breaching party. If the non-breaching party elects not to
terminate the Agreement pursuant to this Section 7.4 ("Breach of Exclusivity"),
the non-breaching party will no longer be subject to the applicable requirements
in this Section 7 ("Exclusivity") for the term of the Agreement. If E-Stamp
terminates the Agreement pursuant to this Section 7.4 ("Breach of Exclusivity"),
eBay shall refund to E-Stamp a pro rata portion of the fee paid to eBay during
the applicable Quarter pursuant to Section 8.1(a) ("Fees and Payments - Fixed
Fees"), the amount of such refund to be prorated through the date of
termination. If either party terminates the Agreement pursuant to this Section
7.4 ("Breach of Exclusivity"), E-Stamp's ongoing future payment obligations will
cease (except for payments due to eBay and not yet paid in full by E-Stamp).
8. Payment Terms.
12.
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8.1 Fees and Payments. All payments pursuant to this Section 8 ("Payment
Terms") are non-refundable except as provided in Section 7.4 ("Breach of
Exclusivity"). E-Stamp agrees to pay to eBay the following fees in the amounts
and according to the timeframes specified:
(a) Fixed Fees. E-Stamp will pay eBay a fixed fee of Thirty
Million Dollars ($30,000,000), payable as follows:
(i) Five Million Dollars ($5,000,000) upon the parties'
execution of this Agreement ($125,000 of which shall be in consideration for
eBay engineering development required to initially promote E-Stamp on the eBay
Site); and
(ii) Five Million Dollars ($5,000,000) on each of the
sixth (6th) month, twelfth (12th) month, eighteenth (18th) month, twenty-
fourth (24th) month and thirtieth (30th) month anniversary of the Agreement's
execution. Except for the $5,000,000 payment due upon execution of the
Agreement pursuant to Section 8.1(a)(i), above, payments pursuant to this
Section 8.1(a) ("Fixed Fees") will be made within ten (10) days following eBay's
invoice therefor.
(b) Customer Bounty Fees. In addition to the fixed fees described
in Section 8.1(a) ("Fixed Fees"), E-Stamp will pay eBay a one-time fee of
[***] dollars ($[***]) per Acquired User acquired by E-Stamp during each Year
in excess of [***] ([***]) Acquired Users. E-Stamp will make such payments
within thirty (30) days following the end of each Quarter. For purposes of
clarification, E-Stamp will make such payment in any Quarter where the number of
Acquired Users acquired by E-Stamp during such Quarter, plus the number of
Acquired Users acquired by E-Stamp in the previous Quarter(s) of such Year (the
sum being the "Cumulative Acquired Users"), exceeds [***] Acquired Users. If the
number of Cumulative Acquired Users does not exceed [***] Acquired Users in the
applicable Year, no payment will be due to eBay pursuant to this Section 8.1(b)
("Customer Bounty Fees") for such Quarter. The parties agree that, with respect
any Year or Quarter that does not contain the same number of days as a calendar
year or quarter, respectively, then the Acquired User bounty threshold will be
prorated accordingly.
(c) Revenue Sharing Fee. In addition to the fixed fees described
in Section 8.1(a) ("Fixed Fees") and the bounty fees described in Section 8.1(b)
("Customer Bounty Fees"), E-Stamp will pay eBay Quarterly fees of [***] percent
([***]%) of all Net Revenues (defined as gross revenues, less refunds and sales
taxes) earned by E-Stamp during each Quarter from: (i) the sale of supplies to
Acquired Users, and (ii) the sale of any co-branded products and supplies
(regardless of purchaser) through the online store or elsewhere. E-Stamp will
make such payment within thirty (30) days after the end of each Quarter and for
two (2) consecutive calendar quarters immediately following the expiration or
early termination of this Agreement. In no event shall the foregoing apply to
revenue from the sale of the E-Stamp Starter Kit or convenience fees from the
sale of USPS online electronic postage.
8.2 Overdue Payments. Overdue payments shall accrue interest, at the
lesser of one and one-half percent (1-1/2%) per month or the maximum allowable
interest under applicable law, from due date until paid, and the owing party
shall pay the owed party's costs of collection (including reasonable attorneys'
fees).
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
13.
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8.3 Taxes. E-Stamp shall collect and pay and indemnify and hold eBay
harmless from, any sales, use, excise, import or export value added or similar
tax or duty associated with this Agreement not based on eBay's net income,
including any penalties and interest, as well as any costs associated with the
collection or withholding thereof, including reasonable attorneys' fees.
8.4 Audit Rights. During the term of this Agreement and for two (2)
years thereafter, E-Stamp shall maintain proper records and books of account
relating to the computation of payments owed to eBay. No more frequently than
once every six (6) months, eBay's designated auditing professional may inspect
such records to verify E-Stamp's reports to eBay, as further described in
Section 9 ("Reports"). Any such inspection will be conducted in a manner that
does not interfere with E-Stamp's regular business activities of the party being
audited. The auditing professional shall enter into a confidentiality agreement
in the form specified by E-Stamp, and shall not disclose any of the records of
the party being audited to eBay. E-Stamp shall immediately make any overdue
payments disclosed by the audit plus applicable interest. Such inspection shall
be at the eBay's expense; however, if the audit reveals overdue payments in
excess of ten percent (10%) of the payments owed to date, E-Stamp shall
immediately pay the cost of such audit, plus any unpaid amounts due to eBay.
9. Reports. E-Stamp shall provide to eBay the following reports: (i) on a bi-
weekly basis, usage reports, broken down by day, regarding the Co-Branded Pages
describing the number of click-throughs to the Launch Pad or other Co-Branded
Pages, number of Acquired Users, aggregate user traffic (and shall use its
commercially reasonable efforts to provide the data specified in Paragraphs 1, 2
and 3 in Exhibit A, broken down by the appropriate time increments),
registrations and such other information as eBay may request; (ii) monthly
demographic reports regarding the E-Stamp Service containing summary information
regarding user demographic profiles if and when E-Stamp should collect such
demographic information; and (iii) quarterly reports regarding the computation
of the fees owed to eBay under Section 8 ("Payment Terms"). E-Stamp will
maintain accurate records and will provide eBay with timely reports based upon
such records (including information with respect to aggregate user traffic and
registrations), in a mutually-agreeable format.
10. Term and Termination.
10.1 Term; Termination. The term of the Agreement shall be three (3)
years from the Effective Date. The Agreement will be terminable early: (i) if a
party materially breaches this Agreement and does not cure such breach within
thirty (30) days following written notice thereof from the non-breaching party;
(ii) by mutual agreement; (iii) by eBay after thirty (30) days written notice to
E-Stamp, if E-Stamp fails to meet the performance criteria described in Sections
2.7 ("User Relations") or 2.8 ("Minimum Site Performance") or Exhibit A
("Performance Standards") and does not cure such failure within thirty (30) days
following written notice thereof; (iv) by E-Stamp after thirty (30) days written
notice to eBay, if eBay fails to meet the performance criteria described in
Section 4.1 ("Promotion and Integration") and does not cure such failure within
thirty (30) days following written notice thereof; or (v) as provided in Section
7.4 ("Breach of Exclusivity").
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10.2 Termination for Change of Control. By providing written notice, eBay
may elect to terminate this Agreement during a ninety (90) day period following
a Change of Control of E-Stamp, by providing notice during such window and which
termination shall be effective thirty (30) days following the notice. "Change of
Control" means any Ownership Change Event or a series of related Ownership
Change Events (collectively, the "Transaction") wherein E-Stamp's shareholders
immediately preceding the Transaction do not retain immediately after
theTransaction, in substantially the same proportions as their ownership of
shares of E-Stamp's voting stock or other voting interests immediately before
the Transaction, direct or indirect beneficial ownership of more than fifty
percent (50%) of the total combined voting power of the corporation or
corporations to which substantially all of E-Stamp's assets or stock were
transferred, as the case may be. An "Ownership Change Event" occurs if any of
the following occur: (a) the direct or indirect sale or exchange in a single
series of related transactions by E-Stamp's shareholders or other ownership
interest holders of more than fifty percent (50%) of its voting stock or other
voting interests; (b) a merger or consolidation in which E-Stamp is a party; (c)
the sale, exchange or transfer of all or substantially all of E-Stamp's assets;
or (d) a liquidation or dissolution of E-Stamp. However, an Ownership Change
Event does not occur as a result of any transaction or series of transactions
that are effected solely in connection with a (i) reincorporation, or (ii) a
reorganization, recapitalization or similar financing not in connection with the
sale of all or substantially all of E-Stamp's assets or stock or other ownership
interests. If eBay terminates the Agreement pursuant to this Section 10.2
("Termination for Change of Control"), eBay shall refund to E-Stamp a pro rata
portion of the fee paid to eBay during the applicable Quarter pursuant to
Section 8.1(a) ("Fees and Payments - Fixed Fees"), the amount of such refund to
be prorated through the date of termination.
10.3 Effects of Termination. Upon the expiration or early termination of
this Agreement, and upon eBay's request, E-Stamp agrees to continue to operate
the Co-Branded Pages under the terms and conditions of this Agreement, for a
minimum of sixty (60) days from the date such termination is effective, and to
cooperate with eBay in order to facilitate communication regarding the
termination to Acquired Users. Upon expiration or termination, all licenses
granted hereunder shall terminate unless such licenses are expressly stated as
surviving. Notwithstanding anything to the contrary contained in this Agreement,
if eBay terminates this Agreement pursuant to Section 10.1(iii) above, E-Stamp's
ongoing future payment obligations will cease (except for payments due to eBay
and not yet paid in full by E-Stamp).
10.4 Survival. Sections 1 ("Certain Definitions"); 5.2 ("Content
Ownership"); 5.4 ("Trademark Restrictions") (relating to intellectual property
ownership); 6 ("Customer Information"); 8 ("Payment Terms") (relating to E-
Stamp's obligation to pay any then-currently owed but unpaid amounts, and other
relevant terms, but excluding amounts otherwise payable under Section 8.1(a)
after termination); 10.3 ("Effects of Termination"); 10.4 ("Survival"); 11
("Representations and Warranties"); 12 ("Indemnity"); 13 ("Limitation of
Liability"); 14 ("Confidential Information") and 15 ("General") shall survive
the expiration or early termination of this Agreement.
11. Representations and Warranties.
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11.1 Performance Warranty. E-Stamp represents and warrants that the E-
Stamp Service and the E-Stamp Additional Services shall comply in all material
respects with its then-published documentation therefor.
11.2 Compliance with Laws. At its own expense, E-Stamp shall comply with
all applicable laws, regulations, rules, ordinances and orders regarding the E-
Stamp Service, E-Stamp Additional Services, E-Stamp Content, E-Stamp Site and
Co-Branded Pages. Without limiting the foregoing, E-Stamp warrants that: (a) it
has all governmental approval, permits and licenses, and has made all
governmental filings and registrations, necessary or prudent for the marketing
and performance of the E-Stamp Service, and (b) eBay is not required to obtain
any governmental approval, permits or licenses as a result of this Agreement,
eBay's performance hereunder or any payments made by E-Stamp hereunder.
11.3 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN,
EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-
INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EBAY DOES
NOT REPRESENT OR WARRANT THAT THE EBAY SITE WILL OPERATE SECURELY OR WITHOUT
INTERRUPTION. EXCEPT AS EXPRESSLY STATED HEREIN, E-STAMP DOES NOT REPRESENT OR
WARRANT THAT THE E-STAMP SITE, THE CO-BRANDED PAGES, THE E-STAMP SERVICE OR E-
STAMP ADDITIONAL SERVICES WILL OPERATE WITHOUT INTERRUPTION. Each party
acknowledges that it has not entered into this Agreement in reliance upon any
warranty or representation except those specifically set forth herein.
12. Indemnity.
12.1 Mutual Indemnity. eBay shall indemnify E-Stamp against any and all
claims, liabilities, losses, costs and expenses, including reasonable attorneys'
fees (collectively, "Claims") which E-Stamp may incur as a result of any claims
in any form by third parties arising from, relating to or in connection with the
eBay Marks or any eBay Content, except where such eBay Marks or eBay Content has
been modified, and such modification is the basis of the Claim. Such
indemnification shall be eBay's sole and exclusive obligation and E-Stamp's sole
and exclusive remedy relating to such Claims. In addition, E-Stamp shall
indemnify eBay against any and all Claims which eBay may incur as a result of
any claims in any form by third parties arising from, relating to or in
connection with any E-Stamp Content, the E-Stamp Marks, the E-Stamp Service, the
E-Stamp Additional Services, or from any breach by E-Stamp of Section 11.2
("Compliance with Laws").
12.2 Further Indemnity.
(a) Without limiting the foregoing, E-Stamp shall indemnify eBay
against any and all Claims which eBay may incur as a result of any claims in any
form by third parties that the E-Stamp Service or any E-Stamp Additional Service
which E-Stamp provides eBay Users in connection with this Agreement infringes
any third party's copyright, patent, trademark, trade secret or other
proprietary rights or rights of publicity or privacy. Without limiting any other
provisions of this Agreement, E-Stamp agrees to reimburse eBay for reasonable
attorneys' fees
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and expenses incurred by eBay in connection with Claims under this Section 12.2
asserted by [ *** ] against eBay ("Further Indemnity") on an as-incurred basis,
promptly upon request for amounts therefor, and without regard to a
determination as to the validity of any third party claim implicated under this
Section 12.2 ("Further Indemnity").
(b) In the event that the provision, marketing, promotion, or use
of the E-Stamp Service or E-Stamp Additional Services to be provided under this
Agreement are enjoined or otherwise limited, restricted, or conditioned, eBay
may suspend its performance obligations (but not its exclusivity obligations
under Section 7 ("Exclusivity")) from such date (the "Suspension Date"), and
E-Stamp shall use all commercially reasonable efforts to (i) procure the rights
required to permit the provision, marketing, promotion and use of the E-Stamp
Service or E-Stamp Additional Services as contemplated under this Agreement, or
(ii) provide alternative noninfringing materials or services (as applicable) of
comparable or superior functionality.
(i) If, within sixty (60) days of the Suspension Date,
E-Stamp has (a) not succeeded in procuring the rights described in subsection
12.2(b)(i) above, and (b) eBay has determined in its reasonable discretion that
the alternative materials or services (as applicable) described in subsection
12.2(b)(ii) have either not been provided or, if provided, are not of comparable
or superior functionality, then either party may elect to terminate this
Agreement on thirty (30) days' written notice. During the thirty (30) period
following such notice, eBay will have no exclusivity obligations under Section 7
("Exclusivity").
(ii) During the periods described in subsection 12.2(b),
E-Stamp's payment obligations under Section 8 ("Payment Terms") shall persist.
12.3 Mechanics. The foregoing obligations are conditioned on the
indemnified party: (i) giving the indemnifying party notice of the relevant
claim, (ii) cooperating with the indemnifying party, at the indemnifying party's
expense, in the defense of such claim, and (iii) giving the indemnifying party
the right to control the investigation, defense and settlement of any such
claim, except that the indemnifying party shall not enter into any settlement
that affects the indemnified party's rights or interest without the indemnified
party's prior written approval. The indemnified party shall have the right to
participate in the defense at its expense, except that with regard to E-Stamp's
indemnity under Section 12.2 ("Further Indemnity"), such participation shall be
at the expense of E-Stamp (excluding any unreasonable attorneys' fees).
13. Limitation of Liability. EXCEPT IN THE EVENT OF A BREACH OF SECTIONS 6
("CUSTOMER INFORMATION"), 14 ("CONFIDENTIAL INFORMATION") OR 11.3 ("COMPLIANCE
WITH LAWS"), NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE)
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT IN THE EVENT OF A
BREACH OF SECTIONS 14 ("CONFIDENTIAL INFORMATION") OR 11.3 ("COMPLIANCE WITH
LAWS"), A FAILURE TO PAY UNDER SECTION 8 ("PAYMENT TERMS"), OR A CLAIM UNDER
SECTION 12 ("INDEMNITY"), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY IN AN AMOUNT GREATER THAN [ *** ] DOLLARS ($[ *** ]); EXCEPT THAT
WITH RESPECT TO A BREACH OF SECTION 4.1 ("EBAY PROMOTION") OR SECTION 7
("EXCLUSIVITY"), THE MAXIMUM LIABILITY SHALL
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
17.
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BE [***] DOLLARS ([***]). THIS LIMITATION OF EACH PARTY'S LIABILITY IS
CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS
AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE
OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
14. Confidential Information.
14.1 Confidential Information Defined. A party's "Confidential
Information" is defined as any confidential or proprietary information of a
party which is disclosed to the other party in a writing marked confidential or,
if disclosed orally, is identified as confidential at the time of disclosure and
is subsequently reduced to a writing marked confidential and delivered to the
other party within ten (10) days of disclosure. The terms of this Agreement
shall be deemed Confidential Information.
14.2 Mutual Obligations. Each party will hold the other party's
Confidential Information in confidence and will not disclose such Confidential
Information to third parties nor use the other party's Confidential Information
for any purpose other than as required to perform under this Agreement. Such
restrictions will not apply to Confidential Information which (a) is already
known by the recipient, (b) becomes publicly known through no act or fault of
the recipient, (c) is received by recipient from a third party without a
restriction on disclosure or use, or (d) is independently developed by recipient
without reference to the Confidential Information. The restriction on disclosure
will not apply to Confidential Information which is required to be disclosed by
a court, government agency, regulatory requirement, or similar disclosure
requirement, provided that recipient shall first notify the disclosing party of
such disclosure requirement or order and use reasonable efforts to obtain
confidential treatment or a protective order. The parties' respective
obligations hereunder shall survive the expiration or early termination of this
Agreement for a period of five (5) years.
14.3 Return of Confidential Information Upon Termination. Upon
termination of this Agreement, the receiving party will return to the disclosing
party all Confidential Information of the disclosing party and all documents or
media containing any such Confidential Information and any and all copies or
extracts thereof.
14.4 Confidential Treatment. Without limiting the foregoing, and subject
to compliance with applicable law, each party agrees to notify the other in the
event any element of this Agreement may need to be disclosed pursuant to any
regulatory or other disclosure requirement, and to further seek confidential
treatment requested by the other with respect to certain confidential elements
of the Agreement and any documents related thereto (including information
relating to fees, payments and integration) in any governmental or public
filings.
15. General.
15.1 Governing Law; Venue. This Agreement shall be construed in
accordance with and governed exclusively by the laws of the State of California
applicable to agreements made among California residents and to be performed
wholly within such jurisdiction, regardless of such parties' actual domiciles.
Both parties submit to personal jurisdiction in California and
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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further agree that any cause of action arising under this Agreement shall be
brought exclusively in a court in Santa Clara County, CA.
15.2 Publicity. Without limiting the provisions of Section 14
("Confidential Information"), neither party will make any public statement
regarding the terms of this Agreement or any aspect thereof without the prior
written approval of the other party, provided that to the extent such disclosure
is required by law, rule, regulation, or governmental or court order, the party
requesting disclosure shall furnish the counter-party with sufficient time to
address such request with any such governmental agency and seek confidential
treatment.
15.3 Independent Contractors. This Agreement does not create, and nothing
contained in this Agreement shall be deemed to establish a joint venture between
the parties, or the relationship of employer-employee, partners, principal-agent
or the like. Further, neither party shall have the power to bind the other
without the other's prior written consent, nor make any representation that it
has any such power.
15.4 Assignment. Subject to Section 10.2 ("Termination for Change of
Control"), neither party may assign its rights nor delegate its duties hereunder
without the other party's prior written consent, (other than (a) to a parent
company or any wholly-owned subsidiary of such parent company, where the
assignee agrees to be bound by all obligations and the assignor guarantees the
performance of all obligations or (b) in connection with a merger or sale of all
or substantially all of a party's assets or securities) and any purported
attempt to do so will be null and void.
15.5 Severability; Headings. If any provision herein is held to be
invalid or unenforceable for any reason, the remaining provisions will continue
in full force without being impaired or invalidated in any way. The parties
agree to replace any invalid provision with a valid provision that most closely
approximates the intent and economic effect of the invalid provision. Headings
are for reference purposes only and in no way define, limit, construe or
describe the scope or extent of such section.
15.6 Force Majeure. If performance hereunder (other than payment) is
interfered with by any condition beyond a party's reasonable control, the
affected party shall be excused from such performance to the extent of such
condition.
15.7 Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, overnight courier, confirmed facsimile,
confirmed email, or certified or registered mail, return receipt requested, and
will be deemed given upon personal delivery, one (1) day after deposit with an
overnight courier, five (5) days after deposit in the mail, or upon confirmation
of receipt of facsimile or email. Notices will be sent to a party at its address
set forth above or such other address as that party may specify in writing
pursuant to this Section 15.7 ("Notice").
15.8 Dispute Resolution. Any dispute regarding this Agreement shall be
resolved as specified in this Section 15.8 ("Dispute Resolution"). Upon the
written request of either party, each party will appoint a designated
representative to attempt to resolve such dispute. Such representatives shall
negotiate in good faith to try to resolve the dispute. If the representatives do
19.
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not resolve the dispute within ten (10) days after the date a party requested
the appointment of representatives, then the parties shall try in good faith to
resolve the dispute by mediation under the commercial Mediation Rules of the
American Arbitration Association. If the dispute is not resolved by such
mediation within thirty (30) days after the date a party requested the
appointment of representatives, then a party may initiate court proceedings. The
parties' representatives may mutually agree to adjust the time periods provided
in this Section 15.8 ("Dispute Resolution"). Notwithstanding the foregoing,
either party may initiate court proceedings for injunctive or other equitable
relief at any time if such party reasonably believes that the procedure set
forth in this Section 15.8 ("Dispute Resolution") could result in irreparable
injury due to delay.
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15.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
15.10 Entire Agreement; Waiver. This Agreement sets forth the entire
understanding and agreement of the parties, and supersedes any and all oral or
written agreements or understandings between the parties, as to the subject
matter of the Agreement. Without limiting the generality of the foregoing, the
Letter of Intent dated December 9, 1999 is hereby terminated as of the Effective
Date of this Agreement. This Agreement may be changed only by a writing signed
by both parties. The waiver of a breach of any provision of this Agreement will
not operate or be interpreted as a waiver of any other or subsequent breach.
In Witness Whereof, the parties have executed this Co-Branding and
Promotion Agreement.
eBay Inc. ("eBay") E-Stamp Corporation ("E-Stamp"):
By: /s/ Jeffrey Jordan By: /s/ Nicole Eagan
------------------------------- -----------------------------------
Name: Jeffrey Jordan Name: Nicole Eagan
Title: Vice President, eBay Inc. Title: Sr. Vice President, Marketing &
Sales
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Exhibit A
Performance Standards
1. Service Availability. The E-Stamp Service shall be available to Acquired
Users a minimum of [ *** ] percent ([ *** ]%) of the time during any
[ *** ] period, [ *** ] percent ([ *** ]%) of the time during any [ *** ]
period, and [ *** ] percent ([ *** ]%) of the time during any [ *** ]
period; and there will be no period of interruption in such public
accessibility that exceeds [ *** ].
2. Response Time. The mean response time for server response to access the
E-Stamp Service shall not exceed more than [ *** ] during any [ *** ]
period.
3. Bandwidth. The bandwidth representing the E-Stamp Service servers'
connection to the Internet shall be operating at peak capacity no more than
[ *** ] in any [ *** ] period and at greater than [ *** ] percent ([ *** ]%)
of peak capacity no more than [ *** ] of any [ *** ] period.
4. Security. E-Stamp shall prevent unauthorized access to restricted areas of
its servers and any databases or other sensitive material generated from or
used in conjunction with the Service. In addition, E-Stamp shall immediately
notify eBay of any known security breaches or holes in the E-Stamp Service
or Co-Branded Pages.
5. E-Stamp Hardware, Software and Browser Performance. During the term of the
Agreement, all hardware necessary for Acquired Users to use any part of the
E-Stamp service will be free from material defects and operate in
substantial conformity with its then-published specifications. In addition,
if E-Stamp offers its service through an HTML interface (or other browser-
based interface) and/or a client software interface, such interfaces will
meet mutually agreed-upon written requirements as developed by the parties.
6. Error Correction. E-Stamp shall resolve any errors with the Co-Branded Pages
(including without limitation any Javascripts or ActiveX controls used in
connection with such pages) that cause such services not to be able to
perform one or more major functions within [ *** ] hours of the
earlier of its discovery of the error or eBay's notice of the error. E-Stamp
shall resolve all other errors with such services within [ *** ] days of
the earlier of its discovery of the error or eBay's notice of the error.
7. Browser Compatibility. The Co-Branded Pages shall initially be compatible
with Netscape Navigator 3.X and later and Microsoft Internet Explorer 3.X
and later. eBay may unilaterally add additional browsers or versions that
the Co-Branded Pages must be compatible with, effective after thirty (30)
days advance written notice, if eBay certifies that it believes such
additional browsers or versions are used by more than [ *** ] percent
([ *** ]%) of eBay Users. eBay Users shall not require any plug-ins in order
to access any Co-Branded Page functionality. This specifically excludes
plug-ins which may be required for printing or other functionality in
E-Stamp's browser-based service.
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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8. Data Authentication. E-Stamp shall use commercially reasonable efforts, no
less than industry-standard, to authenticate the origin of all information
provided by eBay as having come from eBay.
9. Customer Support. E-Stamp shall auto-respond to all customer and technical
support inquiries from Users within [ *** ] of the receipt of inquiry. E-
Stamp shall manually respond to all such inquiries within [ *** ]. E-Stamp
shall resolve all such inquiries within [ *** ] or shall notify eBay that it
cannot do so, in which case eBay at its sole discretion may intervene to
assist in resolving the inquiry .
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
23.
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Exhibit B
eBay Service Competitors
[***]
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
24.
