<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 30, 1999
REGISTRATION NO. 333-93235
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BOLT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7373 13-3905544
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
304 HUDSON STREET -- 7TH FLOOR
NEW YORK, NY 10013
(212) 620-5900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
DANIEL A. PELSON
PRESIDENT & CHIEF EXECUTIVE OFFICER
BOLT, INC.
304 HUDSON STREET -- 7TH FLOOR
NEW YORK, NY 10013
(212) 620-5900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO:
<TABLE>
<S> <C>
JOHN R. POMERANCE, ESQ. WINTHROP B. CONRAD, JR., ESQ.
PETER S. LAWRENCE, ESQ. DAVIS POLK & WARDWELL
MINTZ, LEVIN, COHN, FERRIS, 450 LEXINGTON AVENUE
GLOVSKY AND POPEO, P.C. NEW YORK, NY 10017
ONE FINANCIAL CENTER (212) 450-4000
BOSTON, MA 02111
(617) 542-6000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
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 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 registration statement for the same
offering. [ ]
- ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL SECURITIES, AND WE
ARE NOT SOLICITING OFFERS TO BUY THESE SECURITIES, IN ANY STATE WHERE
THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS (Subject to Completion)
Issued December 30, 1999
Shares
BOLT.COM LOGO
COMMON STOCK
------------------------
Bolt, Inc. is offering shares of its common stock. This is our initial public
offering and no public market currently exists for our shares. We anticipate
that the initial public offering price will be between $ and
$ per share.
------------------------
We have applied to list our common stock on the Nasdaq National Market under the
symbol "BOLT."
------------------------
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON
PAGE 6.
------------------------
PRICE $ A SHARE
------------------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS
PUBLIC COMMISSIONS TO BOLT
-------- ------------- --------
<S> <C> <C> <C>
Per Share................................................... $ $ $
Total....................................................... $ $ $
</TABLE>
Bolt has granted the underwriters the right to purchase up to an additional
shares of common stock to cover over-allotments.
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
Morgan Stanley & Co. Incorporated expects to deliver the shares to purchasers on
, 2000.
------------------------
MORGAN STANLEY DEAN WITTER
THOMAS WEISEL PARTNERS LLC
J. P. MORGAN & CO.
, 2000
<PAGE> 3
[DESCRIPTION OF GRAPHICS]
The inside front cover displays a large text box in the lower right-hand
corner with the language "2000:" followed by the Bolt logo. Above the logo
appears a series of text boxes, which read from top to bottom: "1969:
Woodstock", "1978: the roller rink", "1983: MTV", and "1991: the mall".
The graphics consist of a two-page fold-out containing a sample of our
website homepage, quotes from several registered users, or members, samples of
click-through pages and applications available on our website and other
statistics concerning our website.
The left column of the fold-out has three quotes from members of our site
which state: "I have met a lotta people here. It's da bomb diggity shish boom
snap"; "On Bolt, we can be open and honest with each other, give advice, and
learn more about people all over" and "I would much rather come to Bolt than
watch TV". The left column also contains a sample of a user profile page which
is accessed from our homepage containing certain information regarding a member.
Additionally, the left column contains a sample of the homepage for our
e-commerce store, which can be accessed from our homepage.
The graphic to the right of the left column at the top of the fold-out
contains our logo as well as the phrase "Bolt empowers teens to express their
opinions, meet new friends, and find the products and services they're
interested in." It also contains the following phrases: "Metrics: 1.5 million
registered members, 141 million page views per month", 6.1 million users
sessions per month".
The lower left corner of the fold-out contains a sample view of the Bolt
homepage, which features links to the various components of the site ("members",
"notes", "email", and "homepages" among others), as well as the "Quote of the
Day", "Hot Stuff from the Store!", "Daily Poll", "About Face", and "New
Features" from the sample view displayed homepage.
To the right of the view of the homepage is a sample of our "About Face"
page, which is accessed from our homepage containing question and answer series
presented by Neutrogena, a sample of the "integrated sponsorships" section of
the site. Above the graphic of the "About Face" page an example of "member-
created content" appears, featuring a link from the "Style & Looks" page. Above
the "Style & Looks" page appears a quote from a member; "The first day I was on
Bolt I made three friends in about an hour. That normally doesn't happen for me
because I'm a shy person."
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary.................... 1
Risk Factors.......................... 6
Special Note Regarding Forward-Looking
Statements.......................... 16
Use of Proceeds....................... 17
Dividend Policy....................... 17
Capitalization........................ 18
Dilution.............................. 19
Pro Forma Statement of Operations
Data................................ 20
Selected Financial Data............... 21
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 22
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Business.............................. 32
Management............................ 46
Certain Transactions.................. 52
Principal Stockholders................ 54
Description of Capital Stock.......... 56
Shares Eligible for Future Sale....... 59
Underwriters.......................... 61
Legal Matters......................... 63
Experts............................... 63
Where You Can Find Additional
Information......................... 63
Index to Financial Statements......... F-1
</TABLE>
------------------------
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. We are offering to sell, and seeking offers to
buy, shares of common stock only in jurisdictions where offers and sales are
permitted. The information contained in this prospectus is accurate only as of
the date of this prospectus, regardless of the time of delivery of this
prospectus or of any sale of common stock.
UNTIL , 2000 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS),
ALL DEALERS THAT BUY, SELL OR TRADE BOLT'S COMMON STOCK, WHETHER OR NOT
PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS
DELIVERY REQUIREMENT IS IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A
PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD
ALLOTMENTS OR SUBSCRIPTIONS.
"Bolt," our logo, "Bolt Notes" and other trademarks of Bolt, Inc. mentioned
in this prospectus are the property of Bolt, Inc. All other trademarks or trade
names referred to in this prospectus are the property of their respective
owners.
i
<PAGE> 5
(This page has been left blank intentionally.)
<PAGE> 6
PROSPECTUS SUMMARY
This summary highlights the most important features of this offering and
the information contained elsewhere in this prospectus. This summary is not
complete and does not contain all of the information that you should consider
before investing in our common stock. You should read the entire prospectus
carefully, especially the risks of investing in our common stock discussed under
"Risk Factors."
BOLT, INC.
Our Web site, Bolt.com, is a leading online destination that targets 15-20
year old teens. We feature teen-focused content generated primarily by our
members, a platform for teens to interact with other teens and tools that allow
our members to personalize their user experience. Our site enables members to
create and actively participate in what we believe is one of the most
teen-relevant environments found anywhere.
We have designed Bolt.com to facilitate communication among teens, to
empower them to express their opinions and ideas as a community and to shop in
an online store that our members help create. While the growth of our site to
date has been driven largely by word-of-mouth, we are also building brand
awareness through relationships with America Online, MSN Hotmail, Yahoo! and
Lycos. As a result, our member base has grown to more than 1.5 million as of
December 1, 1999 from about 340,000 as of December 1, 1998. According to Media
Metrix, in October 1999, Bolt.com was the seventh "stickiest" site of all the
sites on the Internet, as measured by minutes per user per month. According to
Nielsen I/PRO, we had over 141 million page views and over 6 million user
sessions in October 1999 as compared to 28 million page views and 1.4 million
user sessions in December 1998. Bolt.com generates revenues through advertising
and sponsorship fees, product sales and transactional fees and we expect to
generate revenues from market research fees in the future.
Advertisers and retailers have increasingly sought access to a rapidly
growing teen audience. The growth in the number of 10 to 24 year olds is
expected to outpace the growth in the general population by nearly 10% over the
next ten years. Advertisers have turned to the Internet to reach teens because
teens have adopted this medium as a primary form of entertainment, communication
and information gathering. We believe there is a significant opportunity to
advertise and sell products and services to teens online because teens possess
substantial disposable income. eMarketer, a market research firm, estimates that
online commerce sales to 13 to 17 year olds will increase to $1.4 billion in
2002 from $161 million in 1999.
Bolt.com is a site that empowers our teen audience to express opinions and
ideas regarding the ever-changing issues and trends that impact their lives. Our
members communicate on our site and provide content for our site using their
chosen Bolt Member IDs. This ensures anonymity and encourages frank and open
discussion. Our members provide most of the content of Bolt.com, unlike other
sites where the non-teen staff or third parties generate most of the content.
Because our teen audience determines significant portions of Bolt.com's content,
we believe we deliver a continually relevant experience. Our more than 1.5
million members can also use our personalized tools, such as email, instant
messaging, personal diaries and personal calendars, to help them manage their
lives, making the site more valuable to them the more they use it. In addition,
in September 1999, we launched the online Bolt Store, which offers more than
1,000 products based on what our members have told us they want to buy. We
expect this to be an increasingly important aspect of our business.
We have developed a site that we believe is highly desirable to advertisers
for the following reasons:
- Audience. We provide a highly-targeted, growing, and
demographically-focused audience.
- Size. We have a large and active user base, as demonstrated by the over
141 million page views and over 6 million user sessions in October 1999.
- Contextual Relevance and Targeting. Marketers can target their messages
in a way that is particularly relevant to the interests of our members.
1
<PAGE> 7
- Member Loyalty. According to Media Metrix, in October 1999, Bolt.com
was the seventh stickiest site of all the sites on the Internet, as
measured by minutes per user per month.
Our goal is to be the leading media company focusing on teens. We intend to
achieve this goal by continuing to build brand awareness, continuing to develop
and extend our relationships with strategic partners and advertisers, enhancing
our online features, expanding our e-commerce offerings and expanding our
international presence.
We currently have strategic relationships that are designed to increase our
brand awareness and drive significant new teen traffic to our site. Our partners
include:
- America Online. We are the only teen community partner for the AOL
branded service's teen message boards and teen chat rooms. We will
provide management of AOL's teen community tools, including its teen
message boards and teen chat rooms. In return, we will receive brand
exposure because we are entitled to establish and maintain a linked,
customized, user-generated content environment at aol.bolt.com, and all
teen-focused message boards, chat rooms, and teen community areas within
the AOL service, including aol.bolt.com, will be Bolt branded.
- MSN Hotmail. We provide teen content for the MSN Hotmail WebCourier
Newsletter Program. The Bolt newsletter is delivered twice per week to
over 1.9 million Hotmail users who elected to receive our content when
they registered with Hotmail. We also advertise on the MSN Shopping
Channel, MSN Hotmail and the MSN service targeted to teens.
- Ford Motor Company. On November 17, 1999, we entered into a partnership
with Ford Motor Company to develop Cars.bolt.com, a co-branded
destination on our site, which will feature auto-related content geared
towards teens. Cars.bolt.com will provide features like personalized
classified ads, an automotive dictionary, teen-focused buyer guides,
information on how to buy or lease a car and an interactive driver's
education seminar.
------------------------
We were incorporated in Delaware on August 15, 1996 as Concrete Media, Inc.
On February 16, 1999, we changed our name to Bolt Media, Inc., and on November
17, 1999, we changed our name to Bolt, Inc. Our principal executive offices are
located at 304 Hudson Street, 7th Floor, New York, New York 10013 and our
telephone number at that address is (212) 620-5900. Our World Wide Web site
address is www.bolt.com. The information on our Web site is not incorporated by
reference into this prospectus.
2
<PAGE> 8
THE OFFERING
Common stock offered in this
offering.................... shares
Common stock to be outstanding
after this offering........... shares
Use of proceeds............... To expand our marketing and promotion
activities, to launch international operations,
to expand and upgrade our technology
infrastructure, to expand our staff and for
working capital and other general corporate
purposes, including possible acquisitions of or
investments in complementary businesses,
products or technologies. See "Use of
Proceeds."
Proposed Nasdaq National
Market symbol................. BOLT
The information above does not include:
- 2,593,600 shares of common stock issuable upon the exercise of stock
options outstanding as of December 6, 1999 at a weighted average
exercise price of $.82 per share; and
- 47,900 shares of common stock issuable upon the exercise of warrants
outstanding as of December 6, 1999 at a weighted average exercise price
of $1.27 per share.
------------------------
Unless otherwise indicated, all information contained in this prospectus:
- Assumes that the underwriters do not exercise their over-allotment
option;
- Reflects a 4-for-1 split of our common stock on November 17, 1999; and
- Reflects the automatic conversion of all of our outstanding shares of
preferred stock into a total of 11,956,621 shares of common stock upon
completion of this offering.
3
<PAGE> 9
SUMMARY FINANCIAL DATA
The following table summarizes our financial data for the period from
August 15, 1996 (date of inception) through December 31, 1996, for the years
ended December 31, 1997 and 1998 and for the nine months ended September 30,
1998 and 1999, which have been derived from our financial statements and the
notes to those financial statements. The summary balance sheet data as of
September 30, 1999 are presented (1) on an actual basis, (2) on a pro forma
basis to give effect to:
- our sale of a total of 3,787,801 shares of our Series C Convertible
Preferred Stock for $10.25 per share on November 17, 1999, November 23,
1999 and December 6, 1999, and
- the conversion of all of our outstanding preferred stock into a total of
11,956,621 shares of common stock upon the completion of this offering
and (3) on a pro forma basis as adjusted to give effect to the receipt of the
estimated proceeds from our sale of shares of common stock in this offering
at an assumed initial public offering price of $ per share, after deducting
the underwriting discounts and commissions and estimated offering expenses
payable by us.
We were originally incorporated as Concrete Media, Inc. in August 1996. Our
original business consisted of three divisions:
- our Bolt subsidiary, which provided online content and community created
by and focused toward teens;
- our "Girls On" division, which provided online entertainment and related
content written by and focused toward young women; and
- our custom publishing division, which provided Web site development
services to third party non-advertising customers.
We also provided, and continue to provide, custom publishing and production
services to our advertising customers in connection with advertising and product
presentation on Bolt.com.
In late 1998 and early 1999, Concrete Media was reorganized. On December
30, 1998, we sold our custom publishing division and on January 29, 1999, we
sold our Girls On division. Accordingly, the statement of operations data for
the periods presented reflect the business of Bolt together with the business of
the custom publishing division and the Girls On division until they were sold.
The pro forma statement of operations data for the year ended December 31, 1998
and for the nine months ended September 30, 1998 have been prepared as though
the sales of the custom publishing division and Girls On division occurred on
January 1, 1998. Our results of operations for the nine months ended September
30, 1999 include the results of operations of Girls On for the month of January
1999, which include revenues of $38,000 and direct expenses of $25,000.
For a more detailed explanation of these financial data, see "Selected
Financial Data," our financial statements and the notes to those financial
statements located elsewhere in this prospectus.
4
<PAGE> 10
<TABLE>
<CAPTION>
PERIOD FROM
AUGUST 15,
1996
(DATE OF
INCEPTION) YEAR ENDED PRO FORMA
THROUGH DECEMBER 31, YEAR ENDED
DECEMBER 31, ------------------------ DECEMBER 31,
1996 1997 1998 1998
------------ ----------- ---------- ------------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Bolt revenues................ $ -- $ 32 $ 404 $ 404
Revenues related to the Girls
On and custom publishing
divisions.................. 19 446 2,281 --
---------- ----------- ---------- ----------
Total revenues....... 19 478 2,685 404
---------- ----------- ---------- ----------
Costs and expenses:
Production and
technology............... 15 810 1,138 336
E-commerce................. -- -- -- --
Sales and marketing........ 1 287 630 332
General and
administrative........... 51 549 1,327 289
Depreciation and
amortization............. 4 25 75 15
Stock-based compensation... -- -- -- --
---------- ----------- ---------- ----------
Total costs and
expenses........... 71 1,671 3,170 972
---------- ----------- ---------- ----------
Loss from operations......... (52) (1,193) (485) (568)
Other income (expense):
Interest income (expense),
net...................... -- 42 (53) --
Gain on sale of Girls On... -- -- -- --
---------- ----------- ---------- ----------
Net loss..................... $ (52) $ (1,151) $ (538) $ (568)
========== =========== ========== ==========
Basic loss per share......... $ (.01) $ (.26) $ (.12) $ (.13)
========== =========== ========== ==========
Weighted average number of
shares of common stock
outstanding................ 4,400,000 4,400,000 4,368,850 4,368,850
========== =========== ========== ==========
<CAPTION>
PRO FORMA
NINE MONTHS NINE MONTHS NINE MONTHS
ENDED ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30,
1998 1998 1999
------------- ------------- -------------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Bolt revenues................ $ 184 $ 184 $ 1,885
Revenues related to the Girls
On and custom publishing
divisions.................. 1,606 -- 38
---------- ---------- -----------
Total revenues....... 1,790 184 1,923
---------- ---------- -----------
Costs and expenses:
Production and
technology............... 813 223 2,389
E-commerce................. -- -- 235
Sales and marketing........ 393 161 2,782
General and
administrative........... 967 221 999
Depreciation and
amortization............. 50 8 211
Stock-based compensation... -- -- 1,256
---------- ---------- -----------
Total costs and
expenses........... 2,223 613 7,872
---------- ---------- -----------
Loss from operations......... (433) (429) (5,949)
Other income (expense):
Interest income (expense),
net...................... (30) -- 115
Gain on sale of Girls On... -- -- 1,436
---------- ---------- -----------
Net loss..................... $ (463) $ (429) $ (4,398)
========== ========== ===========
Basic loss per share......... $ (.11) $ (.10) $ (1.46)
========== ========== ===========
Weighted average number of
shares of common stock
outstanding................ 4,400,000 4,400,000 3,009,720
========== ========== ===========
</TABLE>
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1999
---------------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
------ -------------- -----------
(IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................... $3,637 $42,335
Working capital............................................. 2,131 40,829
Total assets................................................ 8,752 47,450
Capital lease obligations, less current portion............. 578 578
Redeemable convertible preferred stock...................... 8,019 --
Stockholders' equity (deficiency)........................... (3,117) 43,600
</TABLE>
We calculate loss per common share by dividing the loss attributable to
common shares by the weighted average number of shares outstanding. We do not
include outstanding common stock options, outstanding warrants or the conversion
of our outstanding convertible preferred stock in the loss per common share
calculation as their effect is anti-dilutive. The Series B preferred stock has
been recorded at its redemption value and classified as redeemable convertible
preferred stock on our balance sheet as of September 30, 1999.
5
<PAGE> 11
RISK FACTORS
This offering and an investment in our common stock involve a high degree
of risk. You should carefully consider the following risk factors and the other
information in this prospectus before investing in our common stock. Our
business and results of operations could be seriously harmed by any of the
following risks. This could cause the trading price of our common stock to
decline, and you may lose all or part of your investment.
RISKS RELATED TO OUR BUSINESS
WE HAVE A LIMITED HISTORY OPERATING OUR TEEN-FOCUSED WEB SITE, AND WE MAY FACE
DIFFICULTIES ENCOUNTERED BY NEW COMPANIES IN NEW AND RAPIDLY EVOLVING INDUSTRIES
We were founded in August 1996. Accordingly, you should consider the risks
and uncertainties frequently encountered by companies with limited operating
histories in new and rapidly evolving industries, such as the Internet and
e-commerce. Some of these risks and uncertainties relate to our ability to:
- implement and successfully execute our business strategy and sales and
marketing initiatives;
- increase traffic to our Web site;
- increase our brand recognition among our targeted teen audience and
advertisers;
- increase sales in the Bolt Store;
- anticipate and adapt to our evolving market;
- enhance and expand our products and services;
- respond effectively to competitive developments;
- attract, retain and motivate qualified personnel; and
- effectively manage our anticipated growth.
Please see "Management's Discussion and Analysis of Financial Condition and
Results of Operations" for detailed information on our limited operating
history.
YOU SHOULD NOT RELY ON OUR HISTORICAL AND PRO FORMA FINANCIAL INFORMATION IN
DECIDING WHETHER TO INVEST IN OUR COMMON STOCK, BECAUSE THIS INFORMATION WILL
LIKELY NOT BE REPRESENTATIVE OF OUR RESULTS IN THE FUTURE
The financial information included in this prospectus through December 1998
combines the operating results of our then-existing custom publishing division
and "Girls On" division, which were sold in December 1998 and January 1999,
respectively. This information does not reflect what our results of operations,
financial position and cash flows would have been if we were only operating our
teen-focused Web site during the periods presented, or what our results of
operations, financial position and cash flows will be in the future. In
addition, while we have also presented our financial information on a pro forma
basis in an effort to reflect our results as if we were only operating our
teen-focused Web site, this pro forma information does not reflect many
significant changes that have occurred or may occur in our operations.
Accordingly, you should not rely on our historical and pro forma information as
an indication of our future operating results or financial performance.
WE HAD AN ACCUMULATED DEFICIT OF $6.1 MILLION AS OF SEPTEMBER 30, 1999; WE
EXPECT OUR LOSSES TO CONTINUE AND WE MAY NEVER BECOME PROFITABLE
We have had substantial losses since our inception and our operating and
net losses may increase in the future. Accordingly, we may never become or
remain profitable. If our revenues fail to grow at anticipated rates, our
operating expenses increase without an equal increase in our revenues or we fail
to adjust operating expense levels accordingly, our business, results of
operations and financial condition will suffer. As of September 30, 1999, we had
an accumulated deficit of $6.1 million. Although we have experienced growth in
6
<PAGE> 12
revenues, members and customers in recent periods, our growth in revenues may
not continue at its current rate or increase in the future.
We have not yet become profitable on a quarterly or annual basis, and we
anticipate that we will continue to incur operating and net losses. The extent
of these losses will depend, in part, on the amount of growth in our advertising
revenues, e-commerce revenues and market research revenues. We expect that our
operating expenses will increase significantly, especially in the areas of Web
site development, sales and marketing and brand promotion, and, as a result, we
will need to substantially increase our revenues to become profitable.
WE EXPECT OUR RESULTS OF OPERATIONS TO FLUCTUATE AND THE PRICE OF OUR COMMON
STOCK COULD FALL IF QUARTERLY RESULTS ARE LOWER THAN THE EXPECTATIONS OF
SECURITIES ANALYSTS
Our revenues and results of operations have fluctuated in the past and may
vary from quarter to quarter in the future. If our quarterly results fall below
the expectations of securities analysts, the price of our common stock could
fall. A number of factors, many of which are outside our control, may cause
variations in our results of operations, including:
- fluctuations in the demand for Internet advertising or e-commerce;
- changes in the level of traffic on our site; and
- fluctuations in sales and marketing expenses and technology
infrastructure costs.
A substantial portion of our operating expenses is related to sales and
marketing, product development, technology and infrastructure, which expenses
cannot be adjusted quickly and are therefore relatively fixed in the short term.
Our operating expense levels are based, in significant part, on our expectations
of future revenues on a quarterly basis. As a result, if revenues for a
particular quarter are below our expectations, we may not be able to reduce
operating expenses proportionately for that quarter; this revenue shortfall
would have a negative effect on our operating results and cash flow for that
quarter, which would likely have a negative impact on the price of our common
stock.
WE MAY BE UNABLE TO SELL ADDITIONAL ADVERTISING OR MAINTAIN OUR CURRENT LEVEL
OF ADVERTISING SALES, IN WHICH CASE OUR REVENUES WOULD BE ADVERSELY AFFECTED
We currently derive substantially all of our revenues from the sale of
advertisements on our Web site. We may be unable to sell additional advertising
on our site or maintain our current level of advertising sales. Most of our
advertisers have limited experience with the Internet as an advertising medium.
Our ability to generate significant advertising revenues depends upon several
factors, including:
- the acceptance and effectiveness of the Internet as an advertising
medium;
- the development of a large base of teen members on our Web site;
- the desirability of our member base to potential advertisers;
- our ability to continue to develop and update effective advertising
delivery and measurement systems; and
- our ability to maintain and increase our advertising rates given the
growing number of outlets for advertisers on the Internet.
OUR SUCCESS DEPENDS UPON OUR ABILITY TO ATTRACT A SUFFICIENT NUMBER OF TEEN
INTERNET USERS TO OUR WEB SITE; WE MAY NOT BE ABLE TO DO SO
We must deliver original and compelling Internet content, community,
shopping and personalized tools that attract a sufficient number of teen
Internet users to our Web site. We may be unable, however, to anticipate,
monitor or successfully respond to the rapidly changing consumer tastes and
preferences of our targeted teen audience so as to attract enough users to our
site. If we are unable to deliver content, community and services that attract,
retain and expand a loyal member base, we will be unable to generate substantial
advertising revenues or commerce revenues.
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WE HAVE ONLY RECENTLY LAUNCHED THE BOLT STORE; WE HAVE NO PRIOR EXPERIENCE IN
CONDUCTING A DIRECT E-COMMERCE OPERATION AND OUR BUSINESS COULD BE HARMED IF THE
BOLT STORE IS NOT SUCCESSFUL
Prior to our launch of the Bolt Store in September 1999, we had no
experience in conducting a direct e-commerce business. We may be unable to
achieve or maintain any or all of the necessary components of a successful
e-commerce operation, such as timely and efficient order processing and
fulfillment and efficient customer support services. Our failure to successfully
operate the Bolt Store could seriously harm our brand and our business.
BECAUSE WE DEPEND ON THIRD PARTIES TO SUPPLY PRODUCTS AND SHIP ORDERS TO
CUSTOMERS OF THE BOLT STORE AND FOR CUSTOMER SUPPORT, ANY FAILURE OF THESE
PARTIES TO PROVIDE QUALITY SERVICES MAY SERIOUSLY HARM OUR BRAND AND BUSINESS
We depend on third parties to provide services to customers of the Bolt
Store, and the failure of these third parties to provide quality services could
seriously harm our brand and business. Although we choose which products to
offer in the Bolt Store based on input from our members, we have selected a
number of third-party sources to supply the products from their warehouses and
drop-ship orders to our customers after receiving order confirmation from us. In
addition, we have outsourced the customer support function of the Bolt Store to
a third party. Accordingly, we are dependent on these third-party warehouses for
timely and accurate order fulfillment and upon our third-party customer support
service for efficient and informative customer support services. Because these
services are provided by third parties, we have limited control over the quality
of these services.
WE DEPEND ON THE SERVICES OF A NUMBER OF KEY PERSONNEL, AND A LOSS OF ANY OF
THOSE PERSONNEL COULD DISRUPT OUR OPERATIONS AND RESULT IN REDUCED REVENUES
Our success depends on the continued services and on the performance of our
senior management and other key employees, in particular the services of Daniel
A. Pelson, our President and Chief Executive Officer. The loss of the services
of Mr. Pelson or any of our other senior management or key employees could
seriously impair our ability to operate and improve our products and services,
which could reduce our revenues.
In order to achieve our business objectives, we must hire additional
personnel to fill certain key managerial positions. Our future success will
depend upon the ability of our current executive officers to establish clear
lines of responsibility and authority, to work effectively as a team, and to
gain the trust and confidence of our other employees. We must also identify,
attract, train, motivate and retain other highly skilled technical, managerial,
marketing and sales personnel. We compete intensely for these personnel and we
may be unable to achieve our personnel goals. Our failure to achieve any of
these goals could seriously limit our ability to improve our operations and
financial results.
WE PLAN TO EXPAND OUR ADVERTISING SALES FORCE TO INCREASE THE EFFECTIVENESS OF
OUR INTERNAL SALES ORGANIZATION, AND IF WE FAIL TO DO SO WE MAY FAIL TO ATTRACT
SPONSORSHIP AND ADVERTISING REVENUES
We believe we will need to substantially increase our sales force in the
coming year in order to execute our business plan, but we may not be able to do
so. We hired our Vice President of Ad Sales in May 1999, and our internal sales
team currently has only nine members. We believe that the growth of our
sponsorship and advertising revenues will depend on our ability to expand our
sales force in order to establish an aggressive and effective internal sales
organization. Our ability to increase our sales force involves a number of risks
and uncertainties, including competition for these personnel and the length of
time for new sales employees to become productive. If we do not develop an
effective internal sales force, we may be unable to attract sponsorship and
advertising revenues.
GROWTH IN OUR OPERATION HAS AND WILL CONTINUE TO STRAIN OUR RESOURCES; OUR
FAILURE TO MANAGE GROWTH EFFECTIVELY COULD HARM OUR BUSINESS
If we are unable to successfully manage our growth, our business could be
seriously harmed. We have recently experienced significant growth and are
planning to further expand our business and operations. As of
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December 6, 1999, we had 88 employees, compared to 16 employees as of January 1,
1999. This growth has placed, and our planned future growth is expected to
place, a significant strain on our management and other resources. As part of
this growth, we expect to implement new operational and financial systems,
procedures and controls. Any problems in implementing these systems or controls
could harm our operations. In addition, several members of our senior management
joined us during the last year, including our:
- Chief Financial Officer;
- Vice President of Commerce;
- Chief Technology Officer;
- Vice President of Business Development;
- Vice President of Ad Sales; and
- Director of Business Intelligence.
As a result, our management team may have difficulty working together to
successfully manage our anticipated growth.
WE INTEND TO EXPAND OUR BUSINESS; IF WE ARE NOT SUCCESSFUL, OUR BUSINESS COULD
BE SERIOUSLY HARMED
If we are not successful in expanding our business, our brand and business
could be seriously harmed. We may choose to expand our operations by promoting
new or complementary products and services, increasing the breadth and depth of
products and services offered or expanding our market presence through
relationships with third parties or developing new Web sites. In addition, we
may pursue the acquisition of new or complementary businesses or technologies,
although we have no present understandings, commitments or agreements with
respect to any material acquisitions or investments. However, we may not be able
to successfully expand our business and operations in a cost-effective or timely
manner, and we cannot be certain that any of these efforts would increase
overall market acceptance. Furthermore, any new product, service or Web site
that we launch that is not favorably received could damage our reputation or our
brand recognition. Expansion of our operations in this manner could also require
significant additional expenditures and would strain our management, financial
and operating resources.
WE MAY NOT BE ABLE TO COMPETE SUCCESSFULLY
We may not be able to compete successfully in our targeted market. We
expect to encounter intense competition primarily from:
- other companies or Web sites that are primarily focused, or that have
areas primarily focused, on targeting teens online;
- e-commerce companies and traditional retailers of the products we sell
through our Bolt Store;
- traditional media companies that have made or may in the future make
significant acquisitions of or investments in Internet companies; and
- traditional forms of media, like newspapers, magazines, radio and
television.
The market for Internet traffic, registered users and Internet advertising
is new and rapidly evolving, and competition is intense. With no substantial
barriers to entry, we expect that competition will continue to intensify as new
companies and traditional media companies enter this market. In addition,
because the Internet and e-commerce are new and evolving, we also face intense
competition for advertising revenues from traditional sources of advertising
like print, radio, television and other more established media and competition
for direct sales revenues from traditional retailers of products geared towards
teens.
Many of our existing and potential competitors have longer operating
histories, greater name recognition, larger user and customer bases and
significantly greater financial, technical and marketing resources than we do.
This may enable them to respond more quickly to competitive developments, or to
devote greater resources
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than we can to the development, promotion and sale of their products and
services. Our competitors may be able to undertake more extensive marketing
campaigns, adopt more aggressive pricing policies and make more attractive
offers to potential employees, members, customers and partners. Our competitors
may develop products and services that are equal or superior to the products and
services offered by us or that achieve greater market acceptance than our
products and services. In addition, current and potential competitors may
establish cooperative relationships among themselves or with third parties to
improve their ability to address the needs of our customers and members. As a
result, it is possible that new competitors may emerge and rapidly acquire
significant market share. Increased competition may result in price reductions,
reduced revenues, loss of customers and reduced traffic to our Web site.
WE MUST CONTINUE TO ESTABLISH AND MAINTAIN STRATEGIC ALLIANCES TO GENERATE
TRAFFIC TO OUR SITE, WHICH WE MAY NOT BE ABLE TO DO
If we do not continue to establish and maintain strategic alliances that
drive traffic to our site, our business could be seriously harmed. We believe
that strategic alliances with high-traffic Internet sites and leading Internet
portals to ensure the visibility of our Web site and to generate additional
traffic to our site are important to our future growth. We currently have
relationships with America Online, Yahoo!, MSN Hotmail and Lycos. Our business
could be seriously harmed if we do not establish and maintain additional
relationships on commercially reasonable terms or if any of our relationships do
not result in increased traffic and visibility. Many of our current alliances
are based on short-term agreements. There is intense competition among Internet
sites for online strategic relationships. We may not be able to enter into new
or renewed relationships on commercially reasonable terms or at all. In
addition, our existing online strategic relationships or any relationships that
we enter into in the future may not generate enough additional traffic from teen
users to our Web site or create sufficient brand visibility to justify the costs
we incur for these relationships.
OUR SYSTEMS ARE MANAGED BY A THIRD PARTY AND ANY SYSTEMS FAILURE MAY CAUSE
INTERRUPTIONS OF OUR SERVICES, WHICH COULD IMPAIR OUR ADVERTISING REVENUES, OUR
REPUTATION AND THE ATTRACTIVENESS OF OUR BRAND
The performance of our server and networking hardware and software
infrastructure is critical to our business and reputation and our ability to
attract Internet users and advertisers to our site. Substantially all of our
computer and communications hardware and software required for Internet access
is currently housed at Exodus Communications, Inc. in New Jersey. We are
dependent on the services of this provider, and its systems and operations are
vulnerable to damage or interruption from computer viruses, fire, power loss,
telecommunications failures, vandalism and other malicious acts, and similar
unexpected adverse events. We do not presently have a formal disaster recovery
plan and may not carry sufficient business interruption insurance to compensate
us for losses that may occur. If systems failures were sustained or repeated,
our revenues, our reputation and the attractiveness of our brand could be
impaired. In addition, because we have incorporated third-party software into
our systems and we depend upon a third party provider to afford members access
to our products and services, we are limited in our ability to prevent systems
failures.
WE MAY NOT BE ABLE TO SUCCESSFULLY EXPAND INTO INTERNATIONAL MARKETS
If our revenues associated with our planned expansion into international
markets are not adequate to offset investments in international activities, our
business could be seriously harmed. Although we currently operate primarily in
the United States, we plan to expand globally. However, we may experience
difficulty in managing international operations because of distance, as well as
language and cultural differences, and we may not be able to successfully market
and operate our site in foreign markets. There are also risks that are inherent
in transacting business internationally, including:
- unexpected changes in regulatory requirements;
- export restrictions;
- trade barriers;
- difficulties in staffing and managing foreign operations;
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- political instability;
- fluctuations in currency exchange; and
- potential adverse tax consequences.
WE MAY BE LIABLE FOR LEGAL CLAIMS BASED ON THE NATURE AND CONTENT OF OUR
SERVICES AND MEMBER-GENERATED INFORMATION
The features that we offer on Bolt.com that enable our teen members to
exchange information, buy products and services, and engage in various online
activities may expose us to liability. Claims could be made against us for
negligence, defamation, libel, copyright or trademark infringement, personal
injury or other legal claims based on the nature and content of information that
may be posted online by our members. The laws relating to the liability of
providers of online services for the activities of their users are currently
unsettled. In addition, we could be exposed to liability with respect to the
selection of listings that may be accessible through our Web site, or through
content and materials that may be posted by members on message boards or in
clubs, chat rooms or other interactive community-building services. It is also
possible that if any information provided through our services, including
financial information, contains errors, third parties could make claims against
us for losses incurred in reliance on this information. We offer Internet-based
email services, which expose us to potential risks, including liabilities or
claims resulting from unsolicited email, lost or misdirected messages, illegal
or fraudulent use of email, or interruptions or delays in email service.
Investigating and defending these claims is expensive, even to the extent these
claims do not result in liability. Our insurance may not cover certain claims
or, if coverage is available, it may be insufficient.
In addition, we could be exposed to liability arising from the activities
of users of our content or services or with respect to the unauthorized
duplication or insertion of illegal or inappropriate material accessed directly
or indirectly through our services. Several private lawsuits seeking to impose
such liability upon content providers, online services companies and Internet
access providers are currently pending. In addition, laws currently impose
liability for, and in some cases prohibit, the transmission over the Internet of
some types of information. These laws or similar laws enacted in the future
could expose us to significant liabilities associated with our content or
services.
The imposition of potential liability for our content or services could
require us to implement measures to reduce our exposure to this liability, which
may require us to expend substantial resources, or to discontinue some content
or service offerings. In addition, the increased attention focused upon
liability issues as a result of these lawsuits and legislative proposals could
affect the growth of Internet use. We may not have adequate insurance to
compensate us in the event we become liable for our content or services. Any
liability in excess of our insurance could seriously harm our business and
results of operations.
PRIVACY CONCERNS AND GOVERNMENT REGULATIONS COULD IMPAIR OUR ABILITY TO OBTAIN
INFORMATION ABOUT OUR MEMBERS, WHICH WOULD AFFECT OUR ABILITY TO TAILOR OUR
ONLINE OFFERINGS TO OUR MEMBERS AND THE ABILITY OF ADVERTISERS TO CREATE
TARGETED ADVERTISING CAMPAIGNS
Our Web site captures information regarding our members in order to allow
us to tailor our online offerings to them and assist advertisers in targeting
their advertising campaigns. However, privacy concerns may cause members to
resist providing the personal data necessary to support this tailoring
capability. Even the perception of security and privacy issues, whether or not
valid, may indirectly inhibit our ability to collect information regarding our
members. In addition, the Federal Trade Commission has recently issued its final
regulations under the Children's Online Privacy Protection Act of 1998, which
will become effective on April 21, 2000. This Act contains provisions limiting
and regulating the collection, use and/or disclosure of personal information
obtained from children under the age of 13. Although we do not collect and use
information from children under the age of 13, if we discover that members from
whom we have collected information have misrepresented their age or that a child
under 13 has posted personal information on our bulletin board or in any other
public forum on our site, we will have to comply with the provisions of this
Act. Further legislation or regulations regarding Internet privacy that affect
the way we conduct our business may be adopted in the U.S. Other countries and
political entities, like the European Union, have also adopted
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legislation or regulatory requirements regarding the collection and use of
personal data. If consumer privacy concerns are not adequately addressed or if
we fail to comply with current or future regulatory requirements regarding
privacy, our business and results of operations could be seriously harmed.
WE MAY EXPEND SIGNIFICANT RESOURCES TO PROTECT OUR INTELLECTUAL PROPERTY
RIGHTS OR TO DEFEND CLAIMS OF INFRINGEMENT BY THIRD PARTIES, AND IF WE ARE NOT
SUCCESSFUL WE MAY LOSE RIGHTS TO USE SIGNIFICANT MATERIAL OR BE REQUIRED TO PAY
SIGNIFICANT FEES
Our success depends on the protection of our original interactive content
and on the goodwill associated with our trademarks and other proprietary
intellectual property rights. A substantial amount of uncertainty exists
concerning the application of copyright and trademark laws to the Internet and
other digital media, and existing laws may not provide adequate protection of
our content or our Internet addresses, commonly referred to as domain names. We
have filed applications in the United States and other countries to register a
number of our trademarks; however, we do not know whether or not registration
will be granted.
We have also invested resources in acquiring domain names in the United
States and other countries for existing and potential future use. We may not,
however, be entitled to use these names under applicable trademarks and similar
laws and other desired domain names may not be available. Furthermore, enforcing
our intellectual property rights could entail significant expense and could
prove difficult or impossible. In addition, in the future third parties might
bring claims of copyright or trademark infringement, patent violation or
misappropriation of creative ideas or formats against us with respect to our
content or any third-party content carried by us. Any such claims, with or
without merit, could be time consuming to defend, result in costly litigation,
divert management attention, require us to enter into costly royalty or
licensing arrangements or prevent us from using important technologies, ideas or
formats.
WE MAY NOT BE ABLE TO ADAPT AS INTERNET TECHNOLOGIES AND CLIENT DEMANDS
CONTINUE TO EVOLVE
To be successful, we must adapt to rapidly changing Internet technologies
and continually enhance the features and services provided on our Web site,
which we may not be able to do. We could incur substantial and unanticipated
costs if we need to modify our Web site, software and infrastructure to
incorporate new technologies demanded by our teen members and customers. We may
use new technologies ineffectively or we may fail to adapt our Web site and
network infrastructure to user requirements or emerging industry standards. If
we fail to keep pace with the technological demands of our members and customers
for new teen-focused services, products and enhancements, our business may be
seriously harmed.
WE MAY NEED ADDITIONAL FINANCING FOR OUR FUTURE CAPITAL NEEDS, WHICH WE MAY
NOT BE ABLE TO OBTAIN
Because of our expected negative cash flow, we may need to raise additional
funds in the future, which we may not be able to do. Based on our current
operating plans, we anticipate that the net proceeds from this offering,
together with available funds, will be sufficient to meet our anticipated needs
for at least the next 12 months. We may need additional financing sooner if we:
- decide to expand faster than planned;
- develop new or enhanced services or products ahead of schedule;
- need to respond more quickly than anticipated to competitive pressures;
or
- decide to acquire complementary products, businesses or technologies.
We may not be able to raise additional funds on terms favorable to us, or at
all. If future financing is not available or is not available on acceptable
terms, we may not be able to fund our future needs, which would seriously harm
our business and results of operations. In addition, if we raise additional
funds through the sale of equity or convertible debt securities, your percentage
ownership will be reduced. These transactions may dilute the value of the stock
outstanding. We may also have to issue securities that have rights, preferences
and privileges senior to our common stock.
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PROBLEMS RELATED TO THE YEAR 2000 ISSUE COULD CAUSE SYSTEMS FAILURES THAT
IMPAIR OUR OPERATIONS OR COULD BE EXPENSIVE TO CORRECT
Systems failures related to the problem of computer systems and software
products only accepting two digits to identify the year in any date may impair
our operations. Systems or products with this problem may, for example,
interpret the year 2000 as 1900. This could result in system failures, delays or
miscalculations. Computer systems and software that have not been developed or
enhanced recently may need to be upgraded or replaced to comply with Year 2000
requirements. Based on our Year 2000 assessment program, we believe that the
portions of our computer systems that we developed are Year 2000 compliant.
However, our computer system also uses licensed third-party equipment and
software that may not be Year 2000 compliant. We are currently assessing the
third-party equipment and software for Year 2000 compliance. The failure of our
computer system or the computer systems of Internet service providers could
cause us to incur significant expenses to remedy problems and could reduce our
revenues. We have not incurred material costs to date complying with Year 2000
requirements. However, if we discover significant Year 2000 errors or defects,
we could incur substantial costs and our operations could be seriously
disrupted.
RISKS RELATED TO THE INTERNET INDUSTRY
WE ARE DEPENDENT ON THE CONTINUED GROWTH AND DEVELOPMENT OF THE INTERNET AND
ITS INFRASTRUCTURE, WHICH IS NOT CERTAIN
We cannot be certain that growth in the Internet will continue or that a
sufficient number of consumers will adopt and continue to use the Internet and
other online services. Our future success depends on the continued growth in,
and increased use of, the Internet. Internet usage may be inhibited for a number
of reasons, including:
- inadequate Internet infrastructure;
- security concerns;
- inconsistent quality of service; or
- unavailability of cost-effective, high-speed service.
We cannot be certain that the Internet infrastructure will be able to
support the expected growth or that the performance and reliability of the
Internet will not decline as result of this growth. In addition, Web sites,
including ours, have experienced a variety of interruptions in their service as
a result of outages and other delays occurring throughout the Internet network
infrastructure. If these outages or delays occur frequently in the future, Web
usage, including usage of our Web site, could grow more slowly than anticipated
or decline.
OUR FUTURE SUCCESS DEPENDS SIGNIFICANTLY ON THE ACCEPTANCE AND EFFECTIVENESS
OF THE INTERNET AS AN ADVERTISING MEDIUM, WHICH IS UNCERTAIN
Our future success depends significantly on increasing our online
advertising revenues. We cannot be certain that the Internet advertising market
will continue to emerge or will ever become sustainable, and if it does not, our
advertising revenues may decline. Online advertising is new and rapidly
evolving. It cannot yet be compared with traditional advertising media, like
television and print, to gauge its effectiveness. As a result, there is
significant uncertainty about the demand and market acceptance for online
advertising. Many of our current or prospective clients have little experience
using the Internet for advertising purposes. The adoption of online advertising,
particularly by entities that have historically relied on traditional media for
advertising, requires the acceptance of a new way of conducting business. These
businesses may find online advertising to be less effective for promoting their
products and services as compared to traditional advertising.
THE SUCCESS OF THE BOLT STORE DEPENDS ON THE DEVELOPMENT OF THE E-COMMERCE
MARKET, WHICH IS UNCERTAIN
The success of the Bolt Store depends upon the widespread acceptance and
use of the Internet as an effective medium of commerce by consumers, which
cannot be assured. Rapid growth in the use of the Internet and commercial online
services is a recent phenomenon. Demand for recently introduced services and
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products over the Internet and online services is subject to a high level of
uncertainty. The development of the Internet and e-commerce as a viable
commercial marketplace is subject to a number of factors, including the
following:
- e-commerce is at an early stage and buyers may be unwilling to shift
their purchasing habits from traditional retailers to e-commerce
retailers;
- insufficient availability of telecommunications services or changes in
telecommunications services could result in slower response times; and
- adverse publicity and consumer concern about the security of e-commerce
transactions could discourage its acceptance and growth.
BREACHES OF SECURITY ON THE INTERNET MAY ADVERSELY AFFECT OUR BUSINESS BY
SLOWING THE GROWTH OF SALES IN THE BOLT STORE AND ONLINE ADVERTISING AND EXPOSE
US TO LIABILITY
The need to securely transmit confidential information, including credit
card and other personal information, over the Internet has been a significant
barrier to e-commerce and communications over the Internet. Any well-publicized
compromise of security could deter more people from using the Internet or from
using it to conduct transactions that involve transmitting confidential
information, like purchasing goods or services. Furthermore, decreased traffic
and e-commerce sales as a result of general security concerns could cause
advertisers to reduce their amount of online spending. To the extent that our
activities involve the storage and transmission of proprietary information, like
credit card information, security breaches could disrupt our business, damage
our reputation and expose us to a risk of loss or litigation and possible
liability. We could also be liable for claims based on the misuse of personal
information, such as for unauthorized marketing purposes. We may need to spend a
great deal of money and use other resources to protect against the threat of
security breaches or to alleviate problems caused by these breaches.
WE FACE RISKS ASSOCIATED WITH GOVERNMENT REGULATION OF AND LEGAL UNCERTAINTIES
SURROUNDING THE INTERNET
Any new law or regulation pertaining to the Internet, or the application or
interpretation of existing laws, could increase our cost of doing business or
otherwise adversely affect our business. Laws and regulations directly
applicable to Internet communications, commerce and advertising are becoming
more prevalent. The law governing the Internet, however, remains largely
unsettled, even in areas where there has been some legislative action. It may
take years to determine whether and how existing laws governing intellectual
property, copyright, privacy, obscenity, libel and taxation apply to the
Internet. In addition, the growth and development of e-commerce may prompt calls
for more stringent consumer protection laws, both in the United States and
abroad. See "Business--Government Regulation" for a more detailed discussion on
government regulation of the Internet.
RISKS ASSOCIATED WITH THIS OFFERING
SUBSTANTIAL SALES OF OUR COMMON STOCK COULD CAUSE OUR STOCK PRICE TO FALL
Sales of a substantial number of shares of our common stock after this
offering could cause our stock price to fall. Our current stockholders hold a
substantial number of shares, which they will be able to sell in the public
market in the near future. All of the shares sold in this offering will
be freely tradable. The remaining 14,973,965 shares outstanding are restricted
securities as defined in Rule 144 of the Securities Act of 1933. Of these shares
about shares will become freely tradable at various times within
180 days of the date of this prospectus, shares will become
freely tradable on the date that is 180 days after the date of this prospectus
and shares will become freely tradable at various times
thereafter. For a more detailed description of the eligibility of shares for
sale into the public market following this offering, see "Shares Eligible for
Future Sale."
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FUTURE ISSUANCES OF PREFERRED STOCK MAY DILUTE THE RIGHTS OF OUR COMMON
STOCKHOLDERS
Our board of directors will have the authority to issue up to 5,000,000
shares of preferred stock and to determine the price, rights, privileges and
other terms of these shares. The board of directors may exercise this authority
without the approval of the stockholders. The rights of the holders of common
stock may be adversely affected by the rights of the holders of any preferred
stock that may be issued in the future.
ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW AND OUR CHARTER COULD MAKE A
THIRD-PARTY ACQUISITION OF US DIFFICULT
Because we are a Delaware corporation, the anti-takeover provisions of
Delaware law could make it more difficult for a third party to acquire control
of us, even if the change in control would be beneficial to stockholders. We are
subject to the provisions of Section 203 of the General Corporation Law of
Delaware. Section 203 will prohibit us from engaging in certain business
combinations, unless the business combination is approved in a prescribed
manner. Accordingly, Section 203 may discourage, delay or prevent someone from
acquiring or merging with us. In addition, upon completion of this offering, our
certificate of incorporation and bylaws will contain certain provisions that may
make a third party acquisition of us difficult, including:
- a classified board of directors, with three classes of directors each
serving a staggered three-year term;
- the ability of the board of directors to issue preferred stock; and
- the inability of our stockholders to call a special meeting or act by
written consent.
OUR STOCK PRICE MAY BE VOLATILE
An active public market for our common stock may not develop or be
sustained after this offering, and the market price might fall below the initial
public offering price. Prior to this offering, you could not buy or sell our
common stock publicly. The initial public offering price may bear no
relationship to the price at which the common stock will trade upon completion
of this offering. The initial public offering price will be determined based on
negotiations between us and the representatives of the underwriters, based on
factors that may not be indicative of future market performance. The market
price of the common stock may fluctuate significantly in response to a number of
factors, some of which are beyond our control, including:
- quarterly variations in results;
- changes in financial estimates by securities analysts;
- changes in market valuation of Internet companies;
- announcements by us of significant contracts, acquisitions, strategic
partnerships, joint ventures or capital commitments;
- additions or departures of key personnel;
- any shortfall in revenues or net income or any increase in losses from
levels expected by securities analysts;
- future sales of common stock; and
- stock market price and volume fluctuations, which are particularly
common among securities of Internet companies.
OUR MANAGEMENT WILL HAVE BROAD DISCRETION AS TO THE USE OF PROCEEDS FROM THIS
OFFERING
Our management will have broad discretion as to the use of proceeds from
this offering. While we currently intend to use the net proceeds of this
offering as described in "Use of Proceeds," management may allocate the net
proceeds among these purposes as it determines is necessary. In addition, market
factors may require management to allocate all or portions of the net proceeds
for other purposes. Accordingly, you will be
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relying on the judgment of our management with regard to the use of proceeds
from this offering. See "Use of Proceeds" for a more detailed discussion of the
use of proceeds from this offering.
YOU WILL EXPERIENCE IMMEDIATE DILUTION IN THE BOOK VALUE PER SHARE OF THE
COMMON STOCK YOU PURCHASE
Because the price per share of our common stock being offered is
substantially higher than the book value per share of our common stock, you will
suffer substantial dilution in the net tangible book value of the common stock
you purchase in this offering. Based on an assumed initial public offering price
of $ per share, if you purchase shares of common stock in this offering, you
will suffer immediate and substantial dilution of $ per share in the net
tangible book value of the common stock. See "Dilution" for a more detailed
discussion of the dilution you will incur in this offering.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements under "Prospectus Summary," "Risk Factors,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Business," and elsewhere in this prospectus constitute
forward-looking statements. These statements involve known and unknown risks,
uncertainties, and other factors that may cause our or our industry's actual
results, levels of activity, performance or achievements to be materially
different from any future results, levels of activity, performance or
achievements expressed or implied by these forward-looking statements. In some
cases, you can identify forward-looking statements by terminology like "may,"
"will," "should," "expects," "plans," "anticipates," "believes," "estimates,"
"predicts," "potential," "continue" or the negative of these terms or other
comparable terminology.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. We are under no duty to update any of the
forward-looking statements after the date of this prospectus to conform these
statements to actual results.
16
<PAGE> 22
USE OF PROCEEDS
The net proceeds that we will receive from our sale of shares of common
stock in this offering are estimated to be $ million, after deducting
the estimated underwriting discounts and commissions and offering expenses
payable by us and assuming an initial public offering price of $ per share.
If the underwriters exercise their over-allotment option in full, we estimate
the net proceeds from this offering will be $ million.
Our management will have broad discretion as to the use of proceeds from
this offering. We currently intend to use the net proceeds of this offering as
follows:
- to expand our marketing and promotion activities to increase our brand
awareness;
- to launch international operations;
- to expand and upgrade our technology infrastructure;
- to expand our staff, particularly our sales and business development
force; and
- for working capital and general corporate purposes, including possible
acquisitions of or investments in complementary businesses, products or
technologies.
At the present time, we have no understandings, commitments or agreements with
respect to any material acquisition. Our management may allocate the net
proceeds among these purposes as they determine is necessary. Pending the use of
the net proceeds of this offering for the purposes described above, we intend to
invest these proceeds in short-term, interest-bearing, investment-grade
securities.
The foregoing discussion is based on our current business plans and we may
allocate the net proceeds among these purposes as we determine is necessary.
This determination will be based upon factors not yet known, including the time
actually required to reach profitability, the availability of qualified
personnel and the increase, if any, of the traffic to our Web site. In addition,
these and other market factors may require us to allocate portions of the net
proceeds for purposes other than those described above. See "Risk Factors--Risks
Associated with This Offering -- Our management will have broad discretion as to
the use of proceeds from this offering."
DIVIDEND POLICY
We have never declared or paid any cash dividends on our common stock. We
intend to retain any earnings to fund our future growth and the operation of our
business. Therefore, we do not anticipate paying any cash dividends in the
foreseeable future.
17
<PAGE> 23
CAPITALIZATION
The following table shows our cash and cash equivalents, debt, capital
lease obligations, stockholders' equity and capitalization as of September 30,
1999 (1) on an actual basis, (2) on a pro forma basis to give effect to:
- our sale of a total of 3,787,801 shares of our Series C Convertible
Preferred Stock for $10.25 per share on November 17, 1999, November 23,
1999 and December 6, 1999, and
- the conversion of all of our outstanding preferred stock into a total of
11,956,621 shares of common stock upon the completion of this offering
and (3) on a pro forma basis as adjusted to give effect to the receipt of the
estimated proceeds from our sale of shares of common stock in this
offering at an assumed initial public offering price of $ per share, after
deducting the underwriting discounts and commissions and estimated offering
expenses payable by us. This information should be read in conjunction with our
financial statements and the notes to those financial statements appearing
elsewhere in this prospectus.
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1999
---------------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
--------- ----------- -------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Cash and cash equivalents................................... $ 3,637 $42,335 $
======= ======= =======
Long-term debt:
Note payable.............................................. $ 297 $ 297 $
Capital lease obligations................................. 578 578
------- ------- -------
Total long-term debt.................................... 875 875
------- ------- -------
Redeemable convertible preferred stock:
Series B-1, $.001 par value; 1,048,387 shares authorized,
issued and outstanding actual; 1,048,347 shares
authorized, no shares issued and outstanding pro forma;
no shares authorized, issued and outstanding pro forma
as adjusted............................................. 6,132 --
Series B-2, $.001 par value; 268,818 shares authorized,
issued and outstanding actual; 268,818 shares
authorized, no shares issued and outstanding pro forma;
no shares authorized, issued and outstanding pro forma
as adjusted............................................. 1,887 --
Series B-3, $.001 par value; no shares authorized, issued
and outstanding actual; 1,975 shares authorized, no
shares issued and outstanding pro forma; no shares
authorized, issued and outstanding pro forma as
adjusted................................................ -- --
Series C, $.001 par value; no shares authorized, issued
and outstanding actual; 4,400,000 shares authorized, no
shares issued and outstanding pro forma; no shares
authorized, issued and outstanding pro forma as
adjusted................................................ -- --
------- ------- -------
Total redeemable convertible preferred stock............ 8,019
------- ------- -------
Stockholders' equity (deficiency):
Common Stock, $.001 par value; 16,000,000 shares
authorized, 4,438,544 shares issued and 3,017,344 shares
outstanding, actual; 30,000,000 shares authorized,
16,395,165 shares issued and 14,973,965 shares
outstanding, pro forma; 50,000,000 shares authorized,
shares issued and shares outstanding pro
forma as adjusted....................................... 4 16
Series A-1 Convertible Preferred Stock, $.001 par value;
600,000 shares authorized, issued and outstanding
actual; 600,000 shares authorized, no shares issued and
outstanding pro forma; no shares authorized, issued and
outstanding pro forma as adjusted....................... 1 --
Series A-2 Convertible Preferred Stock, $.001 par value;
125,000 shares authorized, issued and outstanding
actual; 125,000 shares authorized, no shares issued and
outstanding pro forma; no shares authorized, issued and
outstanding pro forma as adjusted....................... -- --
Additional paid-in capital.................................. 7,781 54,487
Warrants.................................................... 1,521 1,521
Deferred financing costs.................................... (633) (633)
Accumulated deficit......................................... (6,139) (6,139)
Deferred compensation....................................... (4,876) (4,876)
Note receivable from related party.......................... (315) (315)
Treasury stock.............................................. (461) (461)
------- ------- -------
Total stockholders' equity (deficiency)................. (3,117) 43,600
------- ------- -------
Total capitalization............................... $ 5,777 $44,475 $
======= ======= =======
</TABLE>
The outstanding share information is based on our shares outstanding as of
September 30, 1999. This information excludes:
- 2,593,600 shares of common stock issuable upon the exercise of stock
options outstanding as of December 6, 1999 at a weighted average
exercise price of $.82 per share; and
- 47,900 shares of common stock issuable upon the exercise of warrants
outstanding as of December 6, 1999 at a weighted average exercise price
of $1.27 per share.
18
<PAGE> 24
DILUTION
The pro forma net tangible book value of Bolt as of September 30, 1999,
after giving effect to:
- the sale of a total of 3,787,801 shares of our Series C Convertible
Preferred Stock for $10.25 per share on November 17, 1999, November 23,
1999 and December 6, 1999, and
- the conversion of all of our outstanding preferred stock into a total of
11,956,621 shares of common stock
was $43.6 million or $2.91 per share of common stock. Pro forma net tangible
book value per share represents the amount of total tangible assets less total
liabilities, divided by the number of shares of common stock outstanding.
Assuming the sale by us of shares of common stock in this offering at an
assumed initial public offering price of $ per share, our pro forma net
tangible book value as of September 30, 1999 would have been $ million, or
$ per share of common stock. This represents an immediate increase in pro
forma net tangible book value of $ per share to our existing stockholders
and an immediate dilution in pro forma net tangible book value of $ per
share to new investors purchasing shares in this offering. The following table
illustrates this dilution on a per share basis:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share............. $
Pro forma net tangible book value per share as of September
30, 1999.................................................... $2.91
Increase per share attributable to new investors..........
-----
Pro forma net tangible book value per share after this
offering..................................................
-----
Dilution per share to new investors......................... $
=====
</TABLE>
The following table summarizes, as of September 30, 1999 on a pro forma
basis, the number of shares of stock purchased from us, the total consideration
paid to us and the average price per share paid by existing stockholders and by
new investors, based upon an assumed initial public offering price of $
per share for shares purchased in this offering, before deducting the estimated
underwriting discounts and commissions and estimated offering expenses:
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
----------------- ------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
------ ------- ------- -------- ---------
<S> <C> <C> <C> <C> <C>
Existing stockholders......... % $ % $
New investors.................
------ --- ------ ---
Total............... 100% $ 100%
====== === ====== ===
</TABLE>
These tables assume no exercise of any outstanding stock options or
warrants to purchase common stock. As of December 6, 1999, there were:
- 2,593,600 shares of common stock issuable upon the exercise of stock
options outstanding at a weighted average exercise price of $.82 per
share; and
- 47,900 shares of common stock issuable upon the exercise of warrants
outstanding at a weighted average exercise price of $1.27 per share.
To the extent these options or warrants are exercised, there will be further
dilution to the new investors.
19
<PAGE> 25
PRO FORMA STATEMENT OF OPERATIONS DATA
The statement of operations data for the nine months ended September 30,
1998 and the year ended December 31, 1998 reflect the business of Bolt, together
with the business of the custom publishing division, which provided Web site
development services to third party non-advertising customers, and the Girls On
division, which provided online entertainment and related content written by and
focused toward young women. The custom publishing division was sold in December
1998 and the Girls On division was sold in January 1999. The pro forma statement
of operations data for the nine months ended September 30, 1998 and the year
ended December 31, 1998 reflect our results of operations as if the sales of the
custom publishing division and the Girls On division occurred on January 1,
1998. The pro forma adjustments represent the operating results of the custom
publishing division and the Girls On division for the year ended December 31,
1998. The pro forma statement of operations data are presented for informational
purposes only and may not be indicative of the operating results that would have
been achieved had the transactions been in effect as of the beginning of the
periods presented and should not be construed as being representative of future
operating results.
<TABLE>
<CAPTION>
PRO FORMA
NINE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, PRO FORMA SEPTEMBER 30,
1998 ADJUSTMENTS 1998
-------------- ------------ --------------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total revenues................................. $ 1,790 $1,606 $ 184
---------- ------ ----------
Costs and expenses:
Production and technology.................... 813 590 223
Sales and marketing.......................... 393 232 161
General and administrative................... 967 746 221
Depreciation and amortization................ 50 42 8
---------- ------ ----------
Total costs and expenses............. 2,223 1,610 613
---------- ------ ----------
Loss from operations........................... (433) (4) (429)
Interest expense, net.......................... (30) (30) --
---------- ------ ----------
Net loss....................................... $ (463) $ (34) $ (429)
========== ====== ==========
Basic loss per share........................... $ (.11) $ (.10)
========== ==========
Weighted average number of shares of common
stock outstanding............................ 4,400,000 4,400,000
========== ==========
</TABLE>
<TABLE>
<CAPTION>
PRO FORMA
YEAR ENDED YEAR ENDED
DECEMBER 31, PRO FORMA DECEMBER 31,
1998 ADJUSTMENTS 1998
-------------- ------------- --------------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total revenues.................................. $ 2,685 $2,281 $ 404
---------- ------ ----------
Costs and expenses:
Production and technology..................... 1,138 802 336
Sales and marketing........................... 630 298 332
General and administrative.................... 1,327 1,038 289
Depreciation and amortization................. 75 60 15
---------- ------ ----------
Total costs and expenses.............. 3,170 2,198 972
---------- ------ ----------
Income (loss) from operations................... (485) 83 (568)
Interest expense, net........................... (53) (53) --
---------- ------ ----------
Net income (loss)............................... $ (538) $ 30 $ (568)
========== ====== ==========
Basic loss per share............................ $ (.12) $ (.13)
========== ==========
Weighted average number of shares of common
stock outstanding............................. 4,368,850 4,368,850
========== ==========
</TABLE>
We calculate loss per common share by dividing the loss attributable to
common shares by the weighted average number of shares outstanding. We do not
include outstanding common stock options, outstanding warrants or the conversion
of our outstanding convertible preferred stock in the loss per common share
calculation as their effect is anti-dilutive.
20
<PAGE> 26
SELECTED FINANCIAL DATA
The statement of operations data for the period from August 15, 1996 (date
of inception) through December 31, 1996, for the years ended December 31, 1997
and 1998 and for the nine months ended September 30, 1999 and the balance sheet
data as of December 31, 1997 and 1998 and September 30, 1999 have been derived
from, and qualified by reference to, our audited financial statements included
elsewhere in this prospectus which have been audited by Deloitte & Touche LLP.
The statement of operations data for the nine months ended September 30, 1998 is
derived from unaudited financial statements included elsewhere in this
prospectus. In the opinion of management, the unaudited financial statements
have been prepared on a basis consistent with the audited financial statements
which appear elsewhere in this prospectus and include all adjustments,
consisting of normal recurring adjustments, necessary for a fair presentation of
financial position and results of operations for the unaudited period. The
historical results are not necessarily indicative of the operating results to be
expected in the future. The selected financial data shown below should be read
in conjunction with our financial statements and the notes to those financial
statements and "Management's Discussion and Analysis of Financial Condition and
Results of Operations," appearing elsewhere in this prospectus.
<TABLE>
<CAPTION>
PERIOD FROM
AUGUST 15, 1996
(DATE OF INCEPTION) YEAR ENDED NINE MONTHS ENDED
THROUGH DECEMBER 31, SEPTEMBER 30,
DECEMBER 31, ----------------------- -----------------------
1996 1997 1998 1998 1999
------------------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Bolt revenues....................................... $ -- $ 32 $ 404 $ 184 $ 1,885
Revenues related to the Girls On and custom
publishing divisions.............................. 19 446 2,281 1,606 38
---------- ---------- ---------- ---------- ----------
Total revenues............................. 19 478 2,685 1,790 1,923
---------- ---------- ---------- ---------- ----------
Costs and expenses:
Production and technology......................... 15 810 1,138 813 2,389
E-commerce........................................ -- -- -- -- 235
Sales and marketing............................... 1 287 630 393 2,782
General and administrative........................ 51 549 1,327 967 999
Depreciation and amortization..................... 4 25 75 50 211
Stock-based compensation.......................... -- -- -- -- 1,256
---------- ---------- ---------- ---------- ----------
Total costs and expenses................... 71 1,671 3,170 2,223 7,872
---------- ---------- ---------- ---------- ----------
Loss from operations................................ (52) (1,193) (485) (433) (5,949)
Other income (expense):
Interest income (expense), net.................... -- 42 (53) (30) 115
Gain on sale of Girls On.......................... -- -- -- -- 1,436
---------- ---------- ---------- ---------- ----------
Net loss............................................ $ (52) $ (1,151) $ (538) $ (463) $ (4,398)
========== ========== ========== ========== ==========
Basic loss per share................................ $ (.01) $ (.26) $ (.12) $ (.11) $ (1.46)
========== ========== ========== ========== ==========
Weighted average number of shares of common stock
outstanding....................................... 4,400,000 4,400,000 4,368,850 4,400,000 3,009,720
========== ========== ========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
AS OF
DECEMBER 31,
-------------- AS OF SEPTEMBER 30,
1997 1998 1999
---- ------ -------------------
(IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................... $184 $ 194 $ 3,637
Working capital (deficiency)................................ 128 (130) 2,131
Total assets................................................ 662 1,033 8,752
Capital lease obligations, less current portion............. -- 178 578
Redeemable convertible preferred stock...................... -- -- 8,019
Stockholders' equity (deficiency)........................... 395 (630) (3,117)
</TABLE>
We calculate loss per common share by dividing the loss attributable to
common shares by the weighted average number of shares outstanding. We do not
include outstanding common stock options, outstanding warrants or the conversion
of our outstanding convertible preferred stock in the loss per common share
calculation as their effect is anti-dilutive. The Series B preferred stock has
been recorded at its redemption value and classified as redeemable convertible
preferred stock on our balance sheet as of September 30, 1999.
21
<PAGE> 27
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of the financial condition and
results of operations of Bolt should be read in conjunction with "Selected
Financial Data" and our financial statements and related notes appearing
elsewhere in this prospectus. This discussion and analysis contains
forward-looking statements that involve risks, uncertainties and assumptions.
The actual results may differ materially from those anticipated in these
forward-looking statements as a result of certain factors, including, but not
limited to, those set forth under "Risk Factors" and elsewhere in this
prospectus.
OVERVIEW
Our Web site, Bolt.com, is a leading online destination that targets 15-20
year old teens. We feature teen-focused content generated primarily by our
members, a platform for teens to interact with other teens and tools that allow
our members to personalize their user experience. Our site enables members to
create and actively participate in what we believe is one of the most
teen-relevant environments found anywhere. We have designed Bolt.com to
facilitate communication among teens, to empower them to express their opinions
and ideas as a community and to shop in an online store our members help create.
We were originally incorporated as Concrete Media, Inc. in August 1996. Our
original business consisted of three divisions:
- our Bolt subsidiary, which provided online content and community created
by and focused toward teens;
- our "Girls On" division, which provided online entertainment and related
content written by and focused toward young women; and
- our custom publishing division, which provided Web site development
services to third party non-advertising customers.
We also provided, and continue to provide, custom publishing and production
services to our advertising customers in connection with advertising and product
presentation on Bolt.com.
In late 1998 and early 1999, Concrete Media was reorganized. On December
30, 1998, we sold our custom publishing division and on January 29, 1999, we
sold our Girls On division. Our results of operations set forth below have been
presented to reflect both the combined business of Bolt and the custom
publishing and Girls On divisions and the business of Bolt excluding our former
custom publishing and Girls On divisions. Included in our results of operations
for the nine months ended September 30, 1999 were Girls On revenues and direct
expenses of $38,000 and $25,000, respectively, representing its results for the
month of January just prior to its sale. As a result of the reorganization, we
believe that our historical results of operations are not indicative of our
business and prospects in the future. In addition, the results of operations of
the business of Bolt excluding our former custom publishing and Girls On
divisions is not indicative of our business and prospects going forward.
We have a limited operating history and our prospects are subject to the
risks, expenses and uncertainties frequently encountered by companies in the new
and rapidly evolving markets for Internet products and services. These risks
include the failure to further develop brand awareness, the rejection of
services provided to advertisers, strategic partners and vendors, as well as the
inability to increase the levels of traffic to our Web site.
We have continued to incur losses and negative cash flows from operations
since our inception. These losses have been funded primarily through the
issuance and sale of preferred equity securities. As of September 30, 1999, we
had an accumulated deficit of $6.1 million. We plan to continue to make
significant investments in marketing and technology to continue to build brand
awareness, drive traffic to our site and build our member base. In addition, we
plan to continue to incur costs in building new strategic alliances in an effort
to increase our brand recognition. As a result, we expect to incur significant
operating losses and negative cash flows from operations for the foreseeable
future.
22
<PAGE> 28
REVENUES
We currently derive revenues from two sources: (1) advertising and
sponsorships and (2) e-commerce. We also intend to derive revenues in the near
future from the sale of market research data.
Advertising and sponsorships. Advertising revenues consist primarily of
sales of banner advertisements and sponsorships. Advertising agreements are
generally short-term and provide that we will guarantee a minimum number of
impressions or page views to be delivered over a specified period of time for a
fixed fee. Advertising revenues are generally recognized ratably based on
impressions delivered over the period in which the advertisement is displayed.
To the extent that the minimum number of impressions or page views is not met
within the specified period of time, we defer recognition of revenue until the
impressions or page views are achieved. Through September 30, 1999, we had not
entered into any barter agreements that provided for an exchange of advertising
space between our Web site and advertising space on a third party's Web site. In
November 1999, however, we entered into an agreement with AOL that provides for
our receipt of non-cash revenues for maintenance of the AOL branded teen
channel.
Sponsorship revenues are derived from contracts that generally range from
three-to-12 months in length. Sponsorship agreements typically provide for the
delivery of impressions and market research, as well as strategic placement of
advertisements in contextually relevant areas of our site and the design and
development of sites branded by both Bolt and the sponsor intended to enhance
the promotional objective of the advertiser. Sponsorship revenues are recognized
by us in the same manner that advertising revenues are recognized. Revenues from
production services provided to customers that advertise on our site are
recognized as earned over the life of the advertisement period.
E-commerce. E-commerce revenues are derived from three sources: the sale
of products directly to consumers from the Bolt Store, flat fees from companies
who sell their products through our site and transaction fees received from
companies who pay us based on products they sell from promotions and advertising
on our site. Our members tell us what items they would like to see offered in
the Bolt Store, in effect shifting the model of traditional retailing from
promotion-based sales (a "push" model) to one where our members choose the
products they want to buy (a "pull" model). Currently, the Bolt Store offers
over 1,000 products, including apparel, games, technology, sporting gear and
other items, and we expect to significantly increase the number of products we
offer over the next year. Our users purchase products online and third-party
fulfillment sources drop-ship the product directly to the consumer. We take
title to inventory from the shipper; however, products generally are shipped the
same day the order is fulfilled resulting in our having little, if any,
inventory. We are responsible for the risk of cash collection and product
returns from our customers. As of September 30, 1999, we had no inventory. To
date, e-commerce product returns have been insignificant. E-commerce revenues
represent the gross sales price of the product sold from the Bolt Store and is
recognized at the time product is shipped. We expect that future e-commerce
revenues will fluctuate from quarter to quarter due to seasonal fluctuations in
consumer purchasing patterns. We expect that our e-commerce revenues, especially
relating to the sale of products, in the third and fourth quarter of a given
year will generally be higher than the first two quarters of the year due to the
key back-to-school and holiday selling seasons.
We also generate e-commerce revenues by charging transaction fees to
retailers and e-commerce companies that wish to use our site to promote their
products and services as well as to purchase premium positioning on our site. We
facilitate contact between our members and many of these companies by providing
a link from Bolt.com to their Web sites. Generally, these companies pay us
either a flat fee, a fee based on retail sales to our members or a combination
of the two. We recognize transaction fee revenues from these companies upon
achievement of specified milestones or, in cases where we receive a flat fee,
over the life of the contract.
Market research. We have collected a tremendous amount of data about our
members' preferences both directly, through member-generated profiles, poll
responses and survey results, as well as implicitly, through click-stream
analysis, purchasing history, and other site activity. We believe our ability to
collect data and extract insights about teens' preferences, in the form of
market research reports, will be an increasingly important source of revenues in
the future. We are able to collect this valuable information relating to the
teen
23
<PAGE> 29
demographic group and provide it to companies without compromising the actual
identities of our members. Our members know and appreciate this fact, and
because of it they tend to be very forthcoming about their likes, dislikes and
opinions. To date, we have not recorded any market research revenues; however,
reports have been prepared and provided to advertisers as a value-added service
in connection with larger advertising contracts.
Significant customers. Lids Corporation accounted for 25% of our total
revenues for the nine months ended September 30, 1999. Our custom publishing
division, which provided Web site development services to third party
non-advertising customers, accounted for a large portion of our total revenues
prior to the sale of this division in December 1998. Each of the following
customers were custom publishing customers. Bertlesmann Buch, AG accounted for
52% of our total revenues in 1998. Overly Publishing Co. accounted for 15% of
our total revenues and Tripod, Inc. accounted for 10% of our total revenues in
1997. Time, Inc. accounted for 81% of our total revenues and Winstar Media
Company, Inc. accounted for 19% of our total revenues for the period August 15,
1996 (date of inception) through December 31, 1996.
COSTS AND EXPENSES
Costs and expenses consist of production and technology expenses,
e-commerce expenses, sales and marketing expenses, general and administrative
expenses, depreciation and amortization expenses and stock-based compensation.
Production and technology. Production and technology expenses primarily
include personnel costs related to technical operations, design activities,
productions of the various channels and member-tools incorporated in our site,
and the ongoing development and maintenance of our Web site.
E-commerce. E-commerce expenses primarily include merchandising personnel
costs and the actual costs of product purchased by us from our vendors.
Sales and marketing. Sales and marketing expenses consist primarily of the
costs of online distribution agreements, the costs of offline promotions and
advertising, personnel-related costs and public relations costs. Online
distribution agreements generally require a fixed monthly or quarterly fee paid
by us in exchange for a guaranteed minimum number of impressions. The fixed fee
is amortized as the guaranteed number of impressions is achieved. We expect to
incur significant costs over the next twelve months in an effort to generate
user traffic through the Bolt Store, including the issuance of store coupons and
other marketing strategies.
General and administrative. General and administrative costs primarily
relate to personnel related costs, professional fees and facility costs.
Depreciation and amortization. Depreciation and amortization expenses
relate to computer equipment and fixtures owned by us and the related
amortization of assets acquired through capital leases.
Stock-based compensation. We have recorded total deferred stock-based
compensation of $4.9 million as of September 30, 1999 in connection with stock
options granted during that period. The deferred stock-based compensation amount
represents the difference between the exercise price of stock option grants and
the deemed fair value of our common stock on the date of grant. These amounts
are amortized over the vesting periods of the applicable agreements, resulting
in amortization of stock-based compensation totaling $1.3 million for the nine
months ended September 30, 1999. The amortization expense relates to options
awarded to employees in all operating expense categories. Deferred stock-based
compensation that will be
24
<PAGE> 30
subsequently amortized as expense for the remainder of 1999 and for each of the
next four fiscal years is estimated to be as follows:
<TABLE>
<CAPTION>
PERIOD AMOUNT
- ------ --------------
(IN THOUSANDS)
<S> <C>
Three months ending December 31, 1999....................... $1,835
Year ending December 31, 2000............................... 4,066
Year ending December 31, 2001............................... 1,854
Year ending December 31, 2002............................... 824
Year ending December 31, 2003............................... 147
------
Total............................................. $8,726
======
</TABLE>
RESULTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO NINE MONTHS ENDED SEPTEMBER
30, 1998
Total revenues. Total revenues increased to $1.9 million for the nine
months ended September 30, 1999 from $1.8 million for the nine months ended
September 30, 1998. During the nine-month period ended September 30, 1998 we
recognized $1.4 million of revenues related to the custom publishing division,
which was sold on December 30, 1998, of which 80% came from one customer.
Excluding the revenues from the custom publishing and Girls On divisions, our
revenues increased to $1.9 million for the nine months ended September 30, 1999
from $184,000 for the same period in 1998. This increase was due to advertising
and sponsorship revenues primarily due to a larger customer base. In the nine
months ended September 30, 1999, one customer accounted for 25% of our total
revenues.
Production and technology expenses. Production and technology expenses
increased to $2.4 million for the nine months ended September 30, 1999 from
$813,000 for the nine months ended September 30, 1998. This increase was
primarily due to significant increases in staff and the related personnel costs
associated therewith. In addition, we incurred expenses of about $438,000 in
external production and technology costs related to consultants. Excluding
expenses from the custom publishing and Girls On divisions, our production and
technology expenses increased to $2.4 million for the nine months ended
September 30, 1999 from $223,000 for the nine months ended September 30, 1998.
This increase was the result of the growth of the Bolt business, specifically
related to salary and other personnel costs and the external consulting costs
noted above.
E-commerce expenses. E-commerce expenses of $235,000 related to the launch
of the Bolt Store were incurred in the nine months ended September 30, 1999. To
date, the expenses have consisted primarily of personnel expenses; however, we
expect an increase in e-commerce expenses from the cost of products sold through
the Bolt Store. Our custom publishing and Girls On divisions did not operate an
e-commerce business.
Sales and marketing expenses. Sales and marketing expenses increased to
$2.8 million for the nine months ended September 30, 1999 from $393,000 for the
nine months ended September 30, 1998. This increase was due in part to an
increase in our sales and marketing staff and the related personnel costs. In
addition, during 1999, we entered into online distribution agreements with major
Internet companies, pursuant to which we pay flat fees, transaction fees or fees
for a number of impressions over a period of time. For the nine months ended
September 30, 1999, we recognized about $601,000 in expenses related to the
costs of these agreements. Excluding expenses from the custom publishing and
Girls On divisions, our sales and marketing expenses increased to $2.8 million
from $161,000 for the nine months ended September 30, 1998. This increase was
primarily the result of the growth in the Bolt advertising and sponsorship
business. Approximately $2.0 million of this increase is attributable to the
hiring of additional personnel and $601,000 is attributable to costs associated
with online distribution agreements with major Internet companies.
General and administrative expenses. General and administrative expenses
increased to $1.0 million for the nine months ended September 30, 1999 from
$967,000 for the nine months ended September 30, 1998. This increase was due to
increased administrative staffing to support our growth. Prior to the sale of
the
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custom publishing division and Girls On division, salary expenses related to
general and administrative departments such as executive, finance and human
resources were combined and not captured as direct expenses related to any one
division. These costs have been allocated between Bolt and the custom publishing
and Girls On divisions based on the overall headcount by department where direct
expenses were identifiable by division. Excluding expenses from the custom
publishing and Girls On divisions, our general and administrative expenses
increased to $1.0 million from $221,000 for the nine months ended September 30,
1998. This increase was directly related to the growth of the Bolt business.
Depreciation and amortization expenses. Depreciation and amortization
expenses increased to $211,000 for the nine months ended September 30, 1999 from
$50,000 for the nine months ended September 30, 1998. This increase was
primarily the result of the addition of $2.2 million of equipment and software
necessary for the launch of the Bolt Store and the expansion of our
infrastructure. Excluding expenses from the custom publishing and Girls On
divisions, our depreciation and amortization expenses increased to $211,000 from
$8,000 for the nine months ended September 30, 1998. This increase was directly
related to the growth of the Bolt business.
Stock-based compensation expenses. Stock-based compensation expenses of
$1.3 million for the nine months ended September 30, 1999 represent the
difference between employee stock option grant prices and the deemed fair market
values on the date of grant amortized over the vesting period of the options. At
September 30, 1999, we had recorded $4.9 million of deferred stock-based
compensation, which will be amortized over the vesting periods of the options,
generally four years.
Other income and expense. Other income and expense consists of interest
income on cash equivalents and notes receivable, offset by interest expense on
capital leases, short-term debt and notes payable. For the nine months ended
September 30, 1999, we recorded a $1.4 million gain on the sale of Girls On,
representing our contractual portion of the net proceeds from the acquirer of
the Girls On property.
YEAR ENDED DECEMBER 31, 1998 COMPARED TO YEAR ENDED DECEMBER 31, 1997
Total revenues. Total revenues increased to $2.7 million for the year
ended December 31, 1998 from $478,000 for the year ended December 31, 1997. The
increase was primarily related to revenues of $2.0 million from our custom
publishing division, which was sold on December 30, 1998. For the year ended
December 31, 1998, 52% of our total revenues came from one customer. Excluding
the revenues from the custom publishing and Girls On divisions, our revenues
increased to $404,000 for the year ended December 31, 1998 from $32,000 for the
same period in 1997. This increase was the result of a larger advertising and
sponsorship customer base.
Production and technology expenses. Production and technology expenses
increased to $1.1 million for the year ended December 31, 1998 from $810,000 for
the year ended December 31, 1997. The increase was primarily due to the addition
of production and technology staff and related personnel costs.
Sales and marketing expenses. Sales and marketing expenses increased to
$630,000 for the year ended December 31, 1998 from $287,000 for the year ended
December 31, 1997. This increase was due to an increase in staff and the related
personnel costs as well as an increase in online distribution costs in 1998.
General and administrative expenses. General and administrative expenses
increased to $1.3 million for the year ended December 31, 1998 from $549,000 for
the year ended December 31, 1997. The increase was due to increased
administrative staffing to support our growth.
Depreciation and amortization expenses. Depreciation and amortization
expenses increased to $75,000 for the year ended December 31, 1998 from $25,000
for the year ended December 31, 1997. The increase was primarily due to the
expansion of our infrastructure to support increases in personnel and the growth
of the business.
Other income and expense. For the year ended December 31, 1998, there was
an increase in net interest expense of $95,000 as a result of interest paid on a
convertible note payable and capital leases.
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YEAR ENDED DECEMBER 1997 COMPARED TO THE PERIOD FROM AUGUST 15, 1996 (DATE OF
INCEPTION) THROUGH DECEMBER 31, 1996
Total revenues. Total revenues increased to $478,000 for the year ended
December 31, 1997 from $19,000 for the period from August 15, 1996 through
December 31, 1996. In 1996, we were recently formed and had only two custom
publishing clients. In the following year we increased our custom publishing
customer base and began generating advertising sponsorship revenues. Excluding
the revenues from the custom publishing and Girls On divisions, our revenues
were $32,000 for the year ended December 31, 1997, and we did not have any
revenues in 1996.
Production and technology expenses. Production and technology expenses
increased to $810,000 for the year ended December 31, 1997 from $15,000 for the
period from August 15, 1996 through December 31, 1996. In 1996, only one
employee resided in the production department. The increase in 1997 was due to
additions to the production and technology staff.
Sales and marketing expenses. Sales and marketing expenses increased to
$287,000 for the year ended December 31, 1997 from $1,000 for the period August
15, 1996 through December 31, 1996. This increase was related to new staff and
marketing initiatives.
General and administrative expenses. General and administrative expenses
increased to $549,000 for the year ended December 31, 1997 from $51,000 for the
period August 15, 1996 through December 31, 1996. The increase was due to
increased administrative staffing to support our growth.
Depreciation and amortization expenses. Depreciation and amortization
expense increased to $25,000 for the year ended December 31, 1997 from $4,000
for the period August 15, 1996 through December 31, 1996. This increase reflects
the growth in capital expenditures.
Other income and expense. For the year ended December 31, 1997, there was
an increase in net interest income of $42,000 as a result of interest earned on
cash balances throughout the year.
SELECTED UNAUDITED QUARTERLY REVENUES
The following summary sets forth our quarterly revenues for Bolt, which
include advertising, sponsorship and e-commerce revenues. The information for
each of these quarters has been prepared on substantially the same basis as the
audited financial statements included elsewhere in this prospectus, and in the
opinion of management, includes all adjustments necessary for a fair
presentation of the results of operations for such periods. These results are
not necessarily indicative of the results to be expected in the future, and the
results of interim periods are not necessarily indicative of results for the
entire year.
<TABLE>
<CAPTION>
QUARTERLY REVENUES
FOR THE QUARTER ENDED
----------------------------------------------------------------------------
MAR. 31, JUNE 30, SEPT. 30, DEC. 31, MAR. 31, JUNE 30, SEPT. 30,
1998 1998 1998 1998 1999 1999 1999
-------- -------- --------- -------- -------- -------- ---------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Bolt revenues (advertising,
sponsorships and
e-commerce).................. $5 $39 $141 $219 $272 $692 $921
</TABLE>
The significant increase in revenues for the three months ended June 30,
1999 and for the three months ended September 30, 1999 was in part due to an
increase in revenues from two new advertisers during these periods as well as to
a general increase in our advertiser base as we increased our sales force.
Our revenues and operating results are likely to vary significantly from
quarter to quarter in the future due to a number of factors, many of which are
beyond our control. These factors include:
- the ability to attract and retain new members, customers and
advertisers;
- new sites, services or products introduced by us or our competitors;
- the timing and uncertainty of sales cycles;
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- the mix of online advertisements sold;
- seasonal weakness in advertising sales, which typically occurs in the
first and third quarters;
- the level of Web and online services usage;
- the ability to attract, integrate and retain qualified personnel;
- technical difficulties or system downtime affecting the Internet
generally or the operation of our business; and
- general economic conditions as well as economic conditions specific to
Internet companies.
Our revenues for the foreseeable future will be substantially dependent on
advertising and sponsorships, many of which are short term and subject to
cancellation without penalty until shortly before publication. In addition, we
derive a significant portion of our revenues from sales of advertising to a
limited number of customers. Accordingly, the loss of any advertising
relationship, or the cancellation or deferral of advertising orders could harm
our results in any one quarter. As a result of these and other factors,
quarter-to-quarter comparisons of our operating results should not be relied
upon as an indication of future performance.
LIQUIDITY AND CAPITAL RESOURCES
We have funded our operations to date primarily through private sales of
securities, which resulted in aggregate net proceeds of about $10.0 million from
our inception through September 30, 1999. We had about $3.6 million of cash and
cash equivalents as of September 30, 1999 as compared to $194,326 as of December
31, 1998. The increase in cash is primarily due to the $8.0 million raised
through the sale of our Series B preferred stock and an increase in other
financing activities of $1.2 million, offset by cash used in operating and
investing activities of $3.9 million and $1.8 million, respectively.
Net cash used in operating activities for the nine months ended September
30, 1999 increased to $3.9 million from $386,000 for the same period in 1998.
This increase was primarily the result of the $4.4 million net loss for the nine
months ended September 30, 1999. Included in the net loss for the nine months
ended September 30, 1999 was a $1.4 million gain on the sale of Girls On and an
increase in non-cash depreciation, amortization and stock-based compensation
expenses totaling $1.5 million. In addition, we recorded a net increase in cash
resulting from the net changes in operating assets and liabilities of about
$411,000 for the nine months ended September 30, 1999 compared to the same
period in the prior year. Net cash used in operating activities decreased to
$348,000 in 1998 from $1.1 million in 1997, primarily due to the reduction in
the net loss from $1.2 million in 1997 to $538,220 in 1998.
Net cash used in investing activities increased to $1.8 million for the
nine months ended September 30, 1999 from $55,000 for the same period in 1998.
This increase was the result of $2.2 million of capital expenditures, primarily
equipment and software, partially offset by $386,000 in cash proceeds received
from the sale of Girls On. Capital expenditures since inception have been
$43,000 for the period August 15, 1996 (date of inception) through December 31,
1996, $229,000 and $65,000 for the years ended 1997 and 1998, respectively, and
$2.2 million for the nine months ended September 30, 1999.
Net cash provided by financing activities for the nine months ended
September 30, 1999 increased to $9.2 million from $500,000 for the same period
in 1998. Of this increase, $8.0 million of net proceeds were received through
the sale of Series B preferred stock, about $651,000 was received from
Lighthouse Capital Partners III, L.P. as proceeds from the sale of equipment
previously purchased by us, which is now being leased pursuant to a lease
financing and revolving loan security agreement that we entered into with
Lighthouse on August 23, 1999, and $500,000 of short-term borrowings was
received under a loan and security agreement we entered into with Lighthouse in
August 1999. Net cash provided from financing activities decreased to $423,000
in 1998 from $1.5 million in 1997 due to the $1.5 million of proceeds received
from the sale of Series A preferred stock in 1997, partially offset by the
proceeds received in 1998 from a convertible note of $500,000.
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During November and December 1999, we completed the sale of 3,787,801
shares of Series C preferred stock, resulting in net proceeds of about $38.7
million, after expenses. These proceeds will be used over the next twelve months
to help fund our expected investment in strategically targeted online and
offline marketing, to build brand awareness and drive additional traffic to our
Web site. In addition, we plan to increase capital expenditures, primarily
technical equipment and software, to significantly increase our marketing
expenses and to increase our staff and infrastructure over the next several
months.
Our lease financing agreement with Lighthouse provides a lease line not to
exceed $1,000,000 to fund eligible equipment purchases with an option to
increase the line by $500,000. As of September 30, 1999, we had outstanding
borrowings under the line of $651,023, bearing interest at 8%. In addition to
the lease line, we entered into a loan and security agreement with Lighthouse.
The agreement allows us to borrow up to $500,000 against certain eligible
receivables. As of September 30, 1999, we had outstanding borrowings of the
entire $500,000 under this agreement bearing interest at prime plus 1%. As
additional consideration for these agreements, we have issued to Lighthouse a
warrant to purchase 1,975 shares of Series B-3 preferred stock at an exercise
price of $30.37 per share.
We expect that the net proceeds from this offering and the proceeds
received from the sale of Series C preferred stock, together with our available
funds, will be sufficient to meet our operating and capital needs for the next
12 months, although there can be no assurance that we will not have additional
capital needs prior to that time. If cash generated from our operations is
insufficient to satisfy our business requirements, we may seek additional
funding through public or private financings or other arrangements. Adequate
funds may not be available when needed or may not be available on favorable
terms. If additional funds are raised through the issuance of equity securities,
dilution to existing stockholders may result. If insufficient funds are
available, we may be unable to enhance brand awareness or to make capital
expenditures necessary to support our business, either of which could seriously
harm our business.
YEAR 2000 COMPLIANCE
Many currently installed computer systems and software products are coded
to accept or recognize only two digit entries in the date code field. These
systems and software products will need to accept four digit entries to
distinguish 21st century dates from 20th century dates. As a result, computer
systems and software used by many companies and governmental agencies may need
to be upgraded to comply with such Year 2000 requirements or risk system failure
or miscalculations causing disruptions of normal business activities.
STATE OF READINESS
We have completed an assessment of the Year 2000 readiness of our
operating, financial and administrative systems, including the hardware and
software that support our systems. Our assessment plan consisted of the
following steps:
- quality assurance testing of our internally developed proprietary
software;
- contacting or researching readiness statements of our third-party
vendors and licensors of material hardware, software and services that
are both directly and indirectly related to the delivery of our services
to our users;
- contacting or researching readiness statements of our vendors of
third-party systems;
- contacting or researching readiness statements of our Infrastructure
vendors;
- assessing repair or replacement requirements;
- repair and replacement;
- implementation of the plan; and
- creation of contingency plans in the event of Year 2000 failures. This
plan includes the backup of all mission critical systems immediately
prior to the New Year.
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Over the last number of months, we have completed an audit of all of our
systems and software. We have replaced systems or modified code where necessary.
Our vendors of material hardware and software components, infrastructure, and
systems have indicated that the products we use are currently Year 2000
compliant. We can not guarantee the compliance of our vendors and for this
reason can not accurately predict costs associated with our vendors not being
Year 2000 ready. These costs could be substantial and could have a serious
adverse effect on our business and results of operations.
COSTS TO DATE
Most of our expenses have related to, and are expected to continue to
relate to, the operating costs associated with time spent by employees in the
evaluation process and Year 2000 compliance matters generally. To date, our
costs have not exceeded $50,000. After the New Year, we do not anticipate that
such expenses will be material. Such expenses, if higher than anticipated, could
have a serious adverse effect on our business, results of operations and
financial condition.
RISKS
We are not currently aware of any Year 2000 readiness problems related to
our internally developed systems that would have a material adverse effect on
our business, results of operations and financial condition. We can not
guarantee that third-party software, hardware, or services that our systems rely
on are Year 2000 ready. If at the turn of the New Year, these systems prove to
not be Year 2000 ready, this could have a serious adverse effect on our business
and results of operations.
Since we are dependent on third party vendors to provide significant
network services and equipment, a Year 2000 disruption of these services could
cause our customers and users to consider seeking alternative providers or cause
an immense burden on our technical support staff. Either of these reactions
could have a serious adverse effect on our business, results of operations and
financial condition.
In addition, governmental agencies, utility companies, Internet access
companies, third party service providers and others outside our control may not
be Year 2000 ready. The failure by such entities to be Year 2000 ready could
result in systemic failure, which could also prevent us from delivering our
services to our customers, decrease the use of the Internet, or prevent users
from accessing our Web site, which could have a serious adverse effect on our
business, results of operations and financial condition.
CONTINGENCY PLAN
We have developed a Year 2000 contingency plan. This plan includes backups
of all mission critical hardware and software, as well as a team that will
monitor our hardware, software and third party services during the transition
between 1999 and the Year 2000.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 130, "Reporting
Comprehensive Income." SFAS No. 130 establishes new rules for the reporting and
display of comprehensive income and its components. We have no elements of
comprehensive income and the net loss reported in the statements of operations
is equivalent to the total comprehensive loss.
Effective January 1, 1998, we adopted SFAS No. 131, "Disclosure About
Segments of an Enterprise and Related Information." SFAS No. 131 establishes
standards for the way business enterprises report information about operating
segments, as well as enterprise-wide disclosures about products and services,
geographic areas and major customers. We operate in one segment in the United
States.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which establishes accounting and reporting
standards for derivative instruments and hedging activities. Generally, it
requires than an entity recognize all derivatives as either an asset or
liability and measure those instruments at fair value, as well as identify the
conditions for which a derivative may be
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specifically designed as a hedge. SFAS No. 133 is effective for fiscal years
beginning after June 15, 2000. We do not currently engage or plan to engage in
any derivative or hedging activities.
In March 1998, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use." This statement requires
companies to capitalize qualifying computer software costs which are incurred
during the application development stage and amortize them over the software's
estimated useful life. SOP 98-1 is effective for fiscal years beginning after
December 15, 1998. We adopted the requirements of SOP 98-1 as of January 1,
1999.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We maintain our cash equivalents in a money market fund. As of September
30, 1999, all of our cash equivalent investments will mature in one year or less
(see note 2 to the notes to our financial statements). Bolt did not hold any
derivative financial instruments as of September 30, 1999, and has never held
such investments. Due to the short term nature of our investments, we believe we
have no material exposure to interest rate risk arising from our investments.
Therefore, no quantitative tabular disclosure is required.
Currently, all of our revenues and expenses are denominated in U.S. dollars
and as a result, we have not had any exposure to foreign currency rate
fluctuations.
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BUSINESS
OUR BUSINESS
Our Web site, Bolt.com, is a leading online destination that targets 15-20
year old teens. We feature teen-focused content generated primarily by our
members, a platform for teens to interact with other teens and tools that allow
our members to personalize their user experience. Our site enables members to
create and actively participate in what we believe is one of the most
teen-relevant environments found anywhere. We have designed Bolt.com to
facilitate communication among teens, to empower them to express their opinions
and ideas as a community, and to shop in an online store that our members help
create. While the growth of our site to date has been driven largely by
word-of-mouth, we are also building brand awareness through relationships with
America Online, MSN Hotmail, Yahoo! and Lycos. As a result, our member base has
grown to more than 1.5 million as of December 1, 1999 from about 340,000 as of
December 1, 1998. According to Media Metrix, in October 1999, Bolt.com was the
seventh "stickiest" site of all the sites on the Internet, as measured by
minutes per user per month. According to Nielsen I/PRO, we had over 141 million
page views and over 6 million user sessions in October 1999 as compared to 28
million page views and 1.4 million user sessions in December 1998. By
comparison, Seventeen magazine, a leading teen-focused magazine which has been
in existence since 1944, has a circulation of about 2.4 million.
Based on the following factors, we believe that we will be able to grow our
business in a rapid and cost efficient manner:
- Global demographic: globally, teens share many interests and needs,
which should allow us to readily expand on an international basis.
- Member-generated content: substantially all of our content is generated
by our members, minimizing the need for us to hire additional staff or
pay third parties to generate additional content.
- Critical mass: as one of the first entrants in this market, we have
developed a large and loyal member base, which we believe is an
important asset to continue our growth.
We believe we have created a leading online teen destination and generated
one of the largest databases of teen opinions and preferences in the world. With
Bolt.com, we generate revenues through:
- fees from the sale of advertising and sponsorships on our site;
- e-commerce sales through our recently opened online Bolt Store; and
- transactional fees paid by other retailers and e-commerce companies that
promote their products and services on our site.
In the future, we expect to generate revenues through market research fees from
companies that are interested in learning more about our highly-targeted teen
audience.
INDUSTRY BACKGROUND
GROWTH OF THE INTERNET, E-COMMERCE AND ONLINE ADVERTISING
The Internet has emerged as a significant global communications medium,
enabling millions of people to share information, communicate and conduct
business electronically. Both the number of Internet users and the amount of
time they spend online are growing. This growth is the result of a number of
factors, including:
- an increase in the number of computers in the home, schools and
workplace;
- improvements in computer network infrastructure;
- more convenient, faster and less expensive Internet access;
- advances in computer and modem technology;
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- an increase in public awareness of the benefits of using the Internet;
and
- the development of easy-to-use interfaces.
The rapid adoption of the Internet represents a significant opportunity for
businesses to market and sell products and services online and for advertisers
and businesses to capitalize on the Internet's interactive nature by marketing
their products to highly targeted audiences. The success of Internet advertising
can be attributed to the following factors:
- Internet advertising offers advertisers a flexible way to target their
messages and measure their results;
- Internet advertisers can tailor their messages to specific groups of
consumers;
- Internet advertisers can change advertising content frequently in
response to market factors, current events and consumer feedback; and
- Advertisers can more accurately track the effectiveness of their
advertising messages based on the rate at which consumers directly
respond to their advertisements through "click-throughs" that their
advertisements receive.
GROWTH OF TARGETED ONLINE CONTENT AND COMMUNITY SITES
As the Internet has grown, users and advertisers have started seeking more
targeted and compelling content, information, expression and interaction. Just
as cable television channels, such as MTV and ESPN, have become more popular by
aggregating content targeted towards a specific audience, online content and
community sites that provide a demographically targeted environment have
emerged. Like the major television networks that provide programming across many
demographic segments, the major online portals typically provide a broad range
of content and services without a specific demographic focus.
Targeted online communities provide users with the ability to access
relevant content and to interact directly with other people with similar
interests. Registered users, or members, are often eligible for additional
services from a site, such as customization options or access to premium
content. As a site learns more about its members as they register and spend more
time online, it can tailor its features to meet the needs and preferences of its
users and members. This information also provides advertisers and merchants with
more focused demographic and psychographic information that can be used to
maximize direct marketing opportunities.
TEENS ARE BECOMING AN INCREASINGLY IMPORTANT AUDIENCE TO ONLINE ADVERTISERS
AND MERCHANTS
Significant advertising opportunities exist on a teen-focused Web site.
Teens are more difficult than adults to reach with targeted advertising because
teens generally do not subscribe to magazines in large numbers, and they tend to
watch less television and lead more active lifestyles than adults. While teens
are flooded with literally thousands of broad-based marketing messages every day
from other traditional sources, such as billboard and radio advertising, we
believe they are largely unreceptive to advertising messages that are not
personally relevant. We believe that marketing products and services to teens
online through a site with contextual, editorial information focused on them is
more effective than using traditional marketing methods.
The United States Census Bureau projects that the number of individuals
between the ages of 10 and 24 will grow to 63.1 million in 2010. This growth
rate is estimated to outpace growth of the general population by nearly 10%. In
addition, teens also possess substantial disposable income. eMarketer, a market
research firm, estimates that over $109 billion is spent annually by teens in
the United States alone.
Teens are often early adopters of new technologies and are significantly
involved with the Internet. According to eMarketer, about 57% of 13 to 17 year
olds use the Internet regularly, as compared to about 36% of 18-34 year olds,
31% of 35-54 year olds and 17% of individuals over the age of 55. eMarketer also
estimates that the number of 13 to 17 year olds who regularly access the
Internet will rise to 12.4 million by 2000 from 9.1 million in 1998, an increase
of over 36%. eMarketer estimates that 13 to 17 year olds currently spend an
average of 8.5 hours online per week as compared to 6.7 hours for individuals
over the age of 18. This creates a significant opportunity to both sell products
and advertise to teens online. eMarketer also estimates that online commerce
sales to 13 to 17 year olds will increase to $1.4 billion in 2002 from $161
million in 1999.
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THE NEED FOR A RELEVANT INTERACTIVE FORUM FOR TEENS
We believe that teens have a desire to express themselves when dealing with
issues and problems affecting their lives, but they are often unable or
unwilling to talk about these issues with adults or discuss them face to face
with their friends. Accordingly, they require an interactive forum that will
fill the need that teens have to anonymously express their ideas and opinions
about teen-related issues to their peers. While traditional media is not suited
to meet this need because it is not interactive, the Internet is particularly
appropriate because it is currently the only mass medium that allows for
real-time interactive communication. Accordingly, there appear to be substantial
market opportunities for an online forum that combines content and community
that is relevant to the lives of teens. The major Internet portals, however,
have not seized this opportunity for the following reasons:
- Most portals are generally not contextually relevant. These sites are
designed to appeal to a broad audience, and therefore, we believe they
have not created an environment that is contextually relevant to teens'
needs and buying habits;
- Major portals do not effectively address teen issues. We believe they
do not effectively address the issues that are relevant to teens, such
as peer, parental and school-related pressures, and issues revolving
around friendship, relationships, sexuality and development; and
- Major portals do not provide teen-relevant interactive services. We
believe the major portals do not provide the kind of targeted
interactivity and services that teens seek.
THE BOLT SOLUTION
Bolt.com is one of the most well-known and widely visited Web sites for
teens on the Internet. We provide a site where teens can congregate in an
environment that caters exclusively to their interests and promotes their
participation and recognition. With Bolt.com, we generate revenues from
advertising and sponsorship sales and e-commerce transactions, and we expect to
generate revenues from market research fees in the future.
WHY TEENS USE BOLT
We empower our members. Bolt.com is a site that empowers our teen-focused
audience to express opinions and ideas regarding the ever-changing issues and
trends that impact their lives. Our members communicate on our site and provide
content for our site using their chosen Bolt Member IDs. This ensures anonymity
and encourages frank and open discussion. Our members provide most of the
content of Bolt.com, unlike other sites where the non-teen staff or third
parties generate most of the content. We have created a process where our
members are, in effect, a collection of hundreds of thousands of
"freelance-writers" from around the world who continually contribute content
such as news reports, music and movie reviews, product reviews and survey
questions and answers. Our producers then gather, edit and filter these
submissions and feature items that ultimately provide Bolt.com with its content.
Accordingly, we do not generate content based on what we believe our audience is
interested in; rather, we let our teen audience direct our content. Our members
provide the content, and we provide the processes, framework, tools, utilities,
and applications that empower teens around the world to have a voice regarding
what is important in their lives.
We provide personalized tools. Our more than 1.5 million members can use
our personalized tools to help them manage their lives, making the site more
valuable to them the more they use it. Through tools such as our Bolt Notes and
Diaries, User Profiles and a Personal Calendar our members can personalize our
site. In addition, through our member program, we gather a significant amount of
data concerning the preferences and dislikes of our members, which should allow
our site to be continually relevant to them. This data can be used to target
content as well as advertising information toward particular members, while
maintaining the confidentiality of our members (Bolt does not give out
information about members without a member's consent). We believe our registered
member base creates member loyalty and leads to repeat site visits, referrals
and higher quality member-generated content.
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We offer member-directed online shopping. In September 1999, we launched
the online Bolt Store, which offers products that our members have told us they
want to buy. We allow our more than 1.5 million members to help create the Bolt
Store by asking them, through surveys, polls and other interactive tools, which
products they would like to buy. We then offer these items for sale and use
third-party fulfillment sources to drop-ship products that are purchased at the
Bolt Store. Currently, the Bolt Store offers over 1,000 products, including
apparel, games, technology, sporting gear and other items.
WHY MARKETERS ADVERTISE ON BOLT.COM
We have developed a site that we believe is highly desirable to advertisers
and have established relationships with over 100 new advertisers over the past
nine months. We believe we have developed an attractive platform for advertisers
for the following reasons:
- Audience. We provide a highly-targeted, growing and
demographically-focused audience.
- Size. We have a large and active teen member base, as demonstrated by
the over 141 million page views and over 6 million user sessions in
October 1999.
- Contextual Relevance and Targeting. Marketers can target their messages
in a way that is particularly relevant to our members' interests.
- Member Loyalty. According to Media Metrix, in October 1999, Bolt.com
was the seventh "stickiest" site on the Internet, as measured by minutes
per user per month.
We offer advertisers a variety of advertising and sponsorship opportunities
to allow them to take advantage of these factors, including:
- Banner advertisements;
- Integrated content sponsorships;
- Pop-up advertisements;
- Section sponsorships;
- A rotating "viewer window";
- HTML-based and text-based advertisements in targeted emails; and
- Opt-in registration boxes, that allow members to request information
from selected advertisers.
Because of the substantial amount of data we collect on individual members,
advertisers are able to purchase highly-targeted advertisements that
specifically address their marketing needs. For example, if an advertiser wishes
to reach only 18 year-old men in urban areas who have indicated that they like
snowboarding, we can deliver a marketing message specifically to those members.
While this is efficient for our advertisers, it is also relevant to our members,
who are seeking messages or advertising that specifically address their needs
and do not want to be inundated with advertising messages not relevant to their
particular interests. We plan to continue this advertising methodology in an
effort to become a leader in one-to-one marketing. During the past year, we have
also focused on offering our members the ability to select specific advertisers
from whom they wish to receive more information.
In addition, while banner advertisements are the accepted advertising
method for many advertising agencies, advertisers are realizing that the
Internet provides an excellent opportunity to add more value to the user
experience through integrated sponsorships. For example, Neutrogena sponsors an
interactive question and answer section on Bolt.com where content focused on
health and beauty tips is integrated with Neutrogena's advertisements.
PROVIDING VALUABLE DATA ON THE TEEN DEMOGRAPHIC
The data and information we gather about our highly-focused audience can be
extremely valuable to companies that wish to target this demographic group. We
have created a proprietary environment that not
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only provides a compelling online experience for teens, but also generates a
tremendous amount of data about our members. We collect this data both
explicitly, through member-generated profiles, poll responses and survey
results, and implicitly, through click-stream analysis, purchasing history and
other site activity. We are able to provide valuable information relating to our
specific demographic group to advertisers without compromising the actual
identities of our members. Our members know and appreciate this fact, and
because of it they are very forthcoming about their likes, dislikes and
opinions.
We believe our ability to collect data and extract insights about teens'
preferences in the form of market research reports to companies will generate
additional revenues in the future. We also are currently selling the ability to
survey our audience through a member "opt-in" program on the site, and we are
significantly ramping-up our data-mining capabilities to provide a unique
service to those wishing to collect market research on this unique and elusive
demographic.
THE BOLT STRATEGY
Our goal is to be the leading media company focusing on teens. We intend to
achieve this goal by pursuing the following strategies:
CONTINUE TO BUILD BRAND AWARENESS. We believe that continuing to build
brand awareness for our site is critical to attracting and expanding our global
member base and customer loyalty. Our strategy is to enhance the recognition of
the Bolt brand among our members, other users, customers and strategic partners
through:
- Traditional and Internet Advertising. We will continue to use
traditional advertising, which may include print, television and radio,
not only to continue to reach more advertising customers but also to
publicize our brand to potential users. Also, we will use targeted
online advertising on other Web sites, like Yahoo! or MSN, to promote
our brand name to existing and potential members.
- Non-Traditional Events. We will continue to promote our brand at events
such as rock concerts, sporting events, and other events where teens
gather. For example, in the summer of 1999, we conducted the "Power
Trip," in which a Bolt-branded trailer traveled to over 50 events to
encourage teens to discuss teen empowerment in their own communities.
Tens of thousands of teens registered for our site through this event.
CONTINUE TO DEVELOP AND EXTEND OUR RELATIONSHIPS WITH STRATEGIC PARTNERS
AND ADVERTISERS. We intend to enhance our brand name and increase our customer
base by expanding the number and type of strategic alliances and advertising
relationships we have with online service providers and portals like America
Online, MSN Hotmail, Yahoo! and Lycos, as well as traditional media outlets and
retailers. In addition, we intend to strengthen our relationships with
advertisers by providing more targeted advertising and sponsorship opportunities
to our partners. We also intend to invest in additional reporting tools to
provide unparalleled service in tracking results of promotional and advertising
campaigns on the site.
ENHANCE OUR ONLINE FEATURES. We will continue to develop our content,
community and e-commerce product offerings to drive teen traffic to our Web
site. We are always looking for innovative and exciting interactive tools and
new technologies to enhance our users' experience. For instance, we intend to
develop the ability to access many of the features and functionality found on
Bolt.com by as many electronic means as possible, including wireless phones and
pagers.
EXPAND OUR E-COMMERCE OFFERINGS. We intend to continue to make e-commerce
an integrated and valuable part of our Web site. The Bolt Store currently offers
over 1,000 products for both men and women, and we intend to significantly
increase the number of products we offer over the next year. In addition, we
plan to integrate global shopping opportunities into the Bolt Store for our
users outside of the United States who seek access to American products.
DEVELOP A CO-BRANDED DEBIT CARD. We are planning to develop, with a
strategic partner, the Bolt Card, a co-branded financial resource for teens that
will not only provide them with a non-credit based means of conducting
transactions at the Bolt Store but will also allow them to make purchases
outside of the Bolt Store.
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EXPAND OUR INTERNATIONAL PRESENCE. We believe teens throughout the world
share similar interests and face similar issues and problems. Therefore, we plan
to launch localized versions of our Web site in strategic locations throughout
the world, focusing on countries that have large teen populations with a
significant Internet presence. Initially, we intend to target countries such as
the United Kingdom, France, Germany, Japan, Italy, and Mexico. We plan to
develop local sales staffs and create hosting operations, but intend to leverage
our domestic production facility to maintain economies of scale as we focus on
additional countries.
OUR WEB SITE
The following table details some of the functions and tools we currently
offer on Bolt.com:
SERVICE/FUNCTION DESCRIPTION
Member ID/Profile............. Each member chooses a Bolt member name and all
communications on our site are accomplished
using that name to ensure anonymity among our
members. Our members are encouraged not to give
their real names to other members. The member
profile contains a member's basic information
including age, sex, birthday, state, country if
outside the U.S., and preferences. This is the
basis for our database profile of each member,
and provides members, as well as our
advertising, commerce, and market research
clients, with core data about the likes and
interests of each member without disclosing any
confidential personal information about the
member.
Tagbooks...................... Allows individual members to create personal
questions and polls within their Member
Profiles. In order to access the Tagbooks of a
member and answer questions or leave messages,
you must access that member's profile. This has
become one of the most popular features of
Bolt.com. In addition, because only members can
create Tagbooks, we have found that this
feature drives member registration.
Bolt Notes.................... Allows members to leave a message for any Bolt
member using a proprietary application that
combines instant messaging capabilities with
email.
Bolt Boards................... Provides members with a forum to discuss almost
any topic with each other on the Boards,
ranging from Pro Wrestling to Alternative
Religions. Bolt Boards are the main message
boards on Bolt.com.
Bolt Store Product Reviews.... Allows our members to comment on products for
sale in or that they have purchased in the Bolt
Store. This provides teens with peer-generated
information to support their decision making
for product purchasing.
Bolt Email Service............ Provides every member with access to Internet
email through the Bolt.com address. Currently,
over 600,000 of our more than 1.5 million
members have elected to subscribe to this
service.
Bolt Homepages................ Allows members to categorize and create their
own Web pages that we host free of charge.
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Polls......................... Allows our members to suggest poll topics.
These poll topics are reviewed by our producers
and highlighted in relevant channels where
other members can respond to the poll
questions. A member who responds to a poll
question gets immediate feedback on how other
members have responded.
Friends....................... Enables members to generate listings of other
Bolt members that the member chooses. When
members access our site, they are told which of
their Friends are also on the site. This
facilitates online communication for our
members.
Member Search................. Provides members with the capability to find
and contact other members with similar likes
and/or dislikes.
Personal Calendar............. This Web-based calendar allows members to set
up reminders and appointments, including times
to meet with friends online.
Chat.......................... Provides real-time communication in "rooms"
with specific topics, such as movies, music,
style and religion. Also includes rooms for
French, German, Dutch and Spanish speakers.
Bolt Zap...................... Allows members to send instant messages to
other online members and Friends, as well as to
anyone else on the Internet.
Cards......................... Allows our members to email "virtual cards" to
other members with personalized messages.
Horoscopes.................... Provides proprietary horoscopes targeted to our
teen members and provides interactive feedback
on the horoscopes from members.
Diaries....................... Allows our members to create a digital diary
that does not run the risk of being found by
mom, dad or a sibling. Members have the option
of allowing others to see certain entries if
they desire.
ADVERTISING SALES
As of October 31, 1999, we had a direct advertising sales force comprised
of nine sales people, in addition to our Director of Advertising and our Vice
President of Ad Sales. This group is located primarily in New York, and we have
sales offices in Chicago and Los Angeles and plan to open offices in Detroit and
San Francisco in 2000. Our sales force has been successful in attracting a
diverse group of advertisers by promoting the value of our teen audience and
teen-focused Web site environment. During 1999, our sales force has entered into
contracts with over 100 advertising customers. These are some of our customers
who advertise on or sponsor some of the content of Bolt.com:
<TABLE>
<S> <C> <C>
COMMUNICATIONS AND TECHNOLOGY ENTERTAINMENT AND MEDIA HEALTH AND BEAUTY
BellSouth Bertelsmann/BMG Music Clinique
Hewlett Packard MGM Pictures Coty
Intel MTV Gillette
Microsoft Showtime Johnson & Johnson
Sprint Sony Pictures Entertainment Smith Kline Beecham
FASHION AND RETAIL FOOD AND BEVERAGE AUTOMOTIVE
Artcarved Coca Cola Ford Motor Company
Converse Dr. Pepper/7Up Toyota
J.C. Penney
</TABLE>
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We currently derive, and expect to continue to derive, a substantial
portion of our revenues from advertising sales. We offer advertisers the
following advertising options:
- Banner advertisements. An advertiser may purchase banners, which are
graphical advertisements with the advertiser's logo, for placement
throughout our site or in a specific area within our site.
- Integrated content sponsorships. Advertisers may also sponsor a
specific area or feature of our site. For example, Gillette currently
sponsors a feature called "Lookin' Good" that features ways that teens
deal with their personal appearance.
- Pop-up advertisements. Advertisers may choose to have an advertising
window "pop-up" following certain actions by members on Bolt.com. For
instance, after a member responds to a poll question about a pop star, a
window may pop-up advertising a new artist or musician.
- Section sponsorships. Advertisers may also pay to own a premiere
position within a particular section or sections of Bolt.com. For
example, Emusic.com is currently a section sponsor of the Bolt.com music
section.
- A rotating "viewer window." Our front page contains a rotating viewer
window that displays advertisements and promotes new content on the
site. Because this window is constantly changing and is always visible
to members, it provides our advertisers with an excellent way to catch
the attention of our members.
- HTML-based and text-based advertisements in targeted email. We send
over 4.0 million targeted HTML-based emails every week. We provide
advertisers the opportunity to place a graphic advertisement within
these emails. In addition, we also send over 1.0 million text-based
targeted emails every week. Advertisers can choose to include a textual
advertisement in these messages. Because of our ability to target these
emails, the advertisements tend to be more relevant to the recipient.
- Opt-in registration boxes. When new members register, they have the
opportunity to "opt-in" or request information about products or
services from certain advertisers. These advertisers, such as BMG Music,
pay a fee for each new member that opts-in for information about their
products or services during registration. Thousands of new members
register for our site every day.
E-COMMERCE AND THE BOLT STORE
In September 1999, we launched the Bolt Store, which we believe is one of
the largest collections of teen-focused product offerings on the Internet. In
creating the Bolt Store, we have utilized our relationships with our more than
1.5 million members by asking them, through surveys, polls and other interactive
tools which products they would like to buy through our Web site. We allow our
members to help create the Bolt Store by telling us what brands and products
they like and do not like, and how their lifestyles are impacted by those
products. We listen to their requests and attempt to facilitate their needs, by
offering a number of these products through the Bolt Store. By using member
input to create the Bolt Store, we shift the model of traditional retailing from
promotion-based sales (a "push" model) to one where our members choose the
products they want (a "pull" model). The Bolt Store currently contains over
1,000 products that our members help select, including apparel, games,
technology, sporting gear and other items. We expect to significantly increase
the number of products we offer over the next year.
Because we have a valuable database of aggregate and individual product
preferences from the millions of teens that visit Bolt.com on a monthly basis,
we expect that the Bolt Store will become an effective example of one-to-one
marketing on the Internet. Because of this, we believe we will be able to sell
more effectively than traditional retailers and other online retail sites that
are solely focused on commerce because our members are telling us and each other
what brands and products they like and do not like, and how their lifestyles are
impacted by those products.
Within the Bolt Store, we manage all ordering, returns, and product
selection. We have carefully selected several fulfillment partners to supply the
products from their warehouses and drop-ship orders to our customers after
receiving an order confirmation from us. We take title of inventory from the
shipper; however,
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products generally are shipped the same day the order is fulfilled, resulting in
our having little, if any, inventory. Our customers are given a number of
shipping options, all of which are handled by standard shipping franchises such
as UPS and Federal Express.
We also generate e-commerce revenues by charging transaction fees to
retailers and e-commerce companies that wish to use our site to promote their
products and services as well as to purchase premium positioning on our site. We
facilitate contact between our members and many of these companies by providing
a link from Bolt.com to their Web sites. Generally these companies pay us either
a flat fee, a fee based on retail sales to our members or a combination of the
two. We currently have e-commerce transaction fee arrangements with companies
including CDNow, Lids and InfoBeat.
MARKET RESEARCH
We intend to utilize the valuable data and information we collect from our
teen members in order to make market research an important part of our business.
We intend to offer to teen-focused marketers a variety of products ranging from
online surveys to complete trend reports within the scope of our Web site. These
products will be sold as components of our advertising business.
We have begun to provide market research to a number of our advertising
customers, including a major apparel manufacturer researching the latest trends
in the jeans market and Artcarved, a leading manufacturer of class rings.
Through surveys and polls on Bolt.com, Artcarved was able to collect research
information on how teens perceived class rings, the growth potential of the
industry, and how teens intend to purchase rings (i.e., through in-school
representatives or at jewelry stores).
CUSTOMER CARE
Site support. Users who are unfamiliar with our site can click on the
"help" button on Bolt.com. This feature describes all of our Bolt.com features
and services and explains to the user how to use them. In addition, our members
can post messages on our help boards and our Bolt staff will respond. Finally,
users can also send emails to Bolt Support, and our staff generally responds
within one day.
Bolt Store customer support. We provide live customer support to our Bolt
Store customers 24 hours per day, seven days per week. We currently outsource
this service to a third-party provider but we expect to provide this service
in-house in the future. Our Bolt Store customers can obtain live customer
support at any time simply by clicking through to a customer service
representative and "chatting" online. In addition, our customers can obtain
order processing, shipping status and other account information online at
Bolt.com.
MARKETING AND PROMOTION
We employ a variety of online, offline and non-traditional marketing
methods designed to:
- build our brand awareness;
- drive traffic to our site;
- build our registered member base; and
- minimize our member and customer acquisition costs.
To increase our brand recognition online, we maintain strategic
relationships with leading Internet portals and Web sites, including America
Online, MSN Hotmail, Yahoo! and Lycos. We also use traditional advertising such
as print, television and radio promotions. We believe that promotion in
publications such as the New York Times and Advertising Age is particularly
effective in reaching potential sponsors. We also intend to launch an
advertising campaign in print, radio and television that will promote Bolt.com
as a place for teens to be empowered through having a collective voice. We
intend to choose media that will allow us to reach a significant portion of the
teen market, including alternative and top 40 radio formats, teen magazines and
television programming focused on the teen market.
In addition, we promote our brand with non-traditional marketing promotions
at events such as rock concerts, sporting events, and other gatherings of
interest to teens. For example, in the third quarter of 1999, we conducted the
"Power Trip," during which a Bolt-branded Airstream trailer traveled to over 50
events to encourage teens to discuss teen empowerment in their own communities.
Tens of thousands of teens registered
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for our site through this event. We are also a sponsor of the Gravity Games in
Providence, Rhode Island and Mammoth Mountain, California which are produced by
NBC and Petersen Action Sports Publications. We receive a sponsorship placement
at the Gravity Games and ad placement in designated Petersen magazines, in
return for a Gravity Games featured placement on Bolt.com. A Gravity Games page
is contained within the Sports Section of Bolt.com and is promoted by banners
and buttons as well as direct mail newsletters to Bolt.com members.
BOLT.COM STRATEGIC RELATIONSHIPS
We believe that forming strategic alliances with major online portals and
service providers can increase our brand awareness and be a source of
significant new Web site traffic. We currently have strategic relationships with
the following:
- America Online. We are the only teen community partner for the AOL
branded service's teen message boards and teen chat rooms. We entered
into a 26 month agreement with AOL on November 16, 1999. We will provide
management of AOL's teen community tools, including the teen message
boards and chat rooms. In return, we will receive brand exposure because
we are entitled to establish and maintain a linked, customized,
user-generated content environment at aol.bolt.com, and all teen-focused
message boards, chat rooms, and teen community areas within the AOL
service, including aol.bolt.com, will be Bolt branded. We will also have
the exclusive ability to sell advertising on aol.bolt.com. In addition,
we pay a fee for placement in the AOL shopping service and on teen
targeted sites on the AOL network, including Spinner, WinAmp, Netscape,
Compuserve and MovieFone.
- MSN Hotmail. We provide teen content for the MSN Hotmail WebCourier
Newsletter Program. We have an agreement with Hotmail which expires on
August 27, 2000. This relationship has been a key traffic driver for us
and an important service for Hotmail's teen user base. The Bolt
newsletter is delivered twice per week to over 1.9 million Hotmail users
who elected to receive our content when they registered with Hotmail.
Bolt pays Hotmail a slotting fee and a minimal mail postage per mailing
fee after the first 1.5 million newsletters have been mailed. In
addition to the WebCourier Program, we also advertise on the MSN
Shopping Channel, MSN Hotmail and the MSN service targeted to teens. We
can include advertising in the newsletter and are entitled to all
revenues generated from the sale of these advertisements. Our current
agreement with Hotmail runs through August 27, 2000.
- Yahoo!. We are a co-branding sponsor of the Yahoo! Teen Chat Channel, a
popular area on Yahoo! for teens. This agreement, which was entered into
in September 1999, has a nine month term. As a co-branding sponsor of
the Yahoo! Teen Chat Channel, we are the only teen-focused site that has
a fixed banner placement on the top of the entrance page to Yahoo! Teen
Chat. We also receive a content placement on the left side of this page
that changes continually with new Bolt content. In addition, we receive
shopping related promotions and receive a number of teen targeted banner
advertisements on the Yahoo! network. We pay Yahoo! a one-time fee and
are guaranteed a certain number of impressions.
- Lycos. We provide teen-generated content for Lycos' MailCity email
Newsletter. We entered into an agreement with Lycos in August 1999. This
agreement has a one year term that automatically renews unless either
party gives 30 days written notice of its decision not to renew. This
program allows us to deliver HTML-based email to over 350,000 teens who
have specifically expressed interest in receiving our mailing. This
mailing is delivered once per week every Tuesday. We include advertising
and sponsorships in the newsletter and are entitled to all revenues
generated from the sale of these advertisements.
- Ford Motor Company. On November 17, 1999, we entered into a partnership
with Ford Motor Company to develop Cars.bolt.com, a co-branded
destination on our site, that we expect to launch in January 2000.
Cars.bolt.com will feature auto-related content geared towards teens,
including personalized classified advertisements, an automotive
dictionary, teen-focused buyer guides, information on how to buy and
lease cars and an interactive drivers education seminar called "Behind
the Wheel" that will help our teen members prepare for their driving
license tests. In addition, Cars.bolt.com will feature an interactive
Ford-branded design studio called "Design Your Own
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Dream Car." With this feature, our members will use a drag and drop
graphical interface to design cars and submit their designs to Ford.
Under this agreement, we will also provide quarterly market research
studies to Ford. This agreement continues through December 31, 2002, but
may be terminated on December 31, 2000 or 2001 by either party.
COMPETITION
The market for Internet traffic, registered users and Internet advertising
is new and rapidly evolving, and competition is intense. With no substantial
barriers to entry, we expect that competition will continue to intensify.
We believe that the primary competitive factors in creating community on
the Internet and attracting advertisers are:
- functionality;
- brand recognition;
- user affinity and loyalty;
- the ability to target a specific demographic;
- variety of value-added services;
- ease-of-use;
- quality of service;
- reliability and critical mass; and
- the overall cost-effectiveness of the advertising medium.
We compete with sites, and sites with areas, that are primarily focused on
targeting teens online. These sites include MTV Online and the Yahoo! Teen Chat
area. We also compete with retailers that have moved to the Web such as Alloy
Clothing and Delia's. We will likely also face online competition in the future
from:
- search engine providers;
- content sites;
- commercial online services;
- sites maintained by Internet service providers;
- traditional media companies such as MTV, Disney and NBC, many of which
have recently made significant acquisitions or investments in Internet
companies; and
- other entities that attempt to establish communities on the Internet by
developing their own or purchasing one of our competitors.
We also compete with traditional forms of media, such as newspapers,
magazines, radio and television, for advertisers and advertising revenues.
TECHNOLOGY AND SYSTEMS
We rely almost exclusively on a variety of third-party products for our
hardware and software. We operate our network to ensure maximum uptime, to
obtain, preserve and analyze customer data, and to enhance our members'
experience.
Our goal is to maintain the technological infrastructure required to handle
heavy traffic, e-commerce and complex graphics on our site. We currently house
our servers at Exodus Communications in New Jersey. Exodus maintains an
environmentally controlled data center with multiple communication lines and
uninterrupted power. We believe that our infrastructure conforms to the latest
industry standards. We are also in the process of installing additional servers.
If a server fails, we believe that we have enough back-up servers to ensure that
our service interruption would be minimized. Our infrastructure is scalable in
that as additional capacity is needed, additional servers can be easily added.
We are also planning to expand our server system to multiple data centers.
Currently, a complete failure at our data center would prevent us from
delivering our services to our customers and prevent users from accessing our
Web site.
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We also run weekly full backups of all of our servers, as well as daily
incremental backups of these same machines. These tape backups are stored off of
the premises.
TRADEMARKS AND INTELLECTUAL PROPERTY
We use the following trademarks for which applications in the United States
Patent and Trademark Office are pending: "Bolt," our logo, "Banned On," "Bolt
Notes" and "Bolt Reporter." We also have trademark and domain name applications
pending in other countries.
GOVERNMENT REGULATION
We are subject to various laws and governmental regulations relating to our
business. Although there are currently few laws or regulations directly
applicable to online services or the Internet, the increasing popularity and use
of the Internet might cause additional laws and regulations to be adopted. These
laws and regulations currently cover or may cover in the future issues including
the following:
INTERNET PRIVACY
The Children's Online Privacy Protection Act of 1998, which was enacted by
the United States Congress on October 21, 1998 and for which the Federal Trade
Commission issued its final regulations on October 20, 1999, regulates the
collection, use, and/or disclosure of personal information obtained from
children under the age of 13. Under the provisions of this Act, which becomes
effective on April 21, 2000, Web sites catering to children will be required to:
- provide notice on their Web site and to parents of children under the
age of 13 with notice of what information is being collected, how the
site uses the information, and the Web site's practices regarding
disclosures of information;
- obtain verifiable parental consent for the collection, use and/or
disclosure of their children's information, and allow parents to
terminate their consent at any time;
- provide parents an opportunity to review the information collected from
their children; and
- refrain from conditioning a child's participation in a game on the child
revealing more information than reasonably necessary to participate.
We do not collect information from children under age 13 and therefore do
not need to take any specific actions in order to comply with these regulations.
However, if we discover that a Bolt member about whom we have collected
information has misrepresented his or her age and is in fact under age 13, or
that a child under 13 has disclosed personal information on our bulletin boards
or in any other public forum on our site, we will have to either (1) remove that
person as a Bolt member, or (2) comply with the Federal Trade Commission
regulations under the Act.
It is important to our members that we protect their privacy. We use
password protection and member IDs to ensure anonymity among our members. In
addition, we do not sell or distribute information about the identities,
preferences or page views of individual members without their permission. We do
disclose certain information to third parties, with our members' permission, in
connection with product promotions and special programs in which members elect
to participate. The market research data that we sell to third parties consists
of trend information about various segments of our members; for example, what
certain types of users like to do in their spare time or which of two products
our members prefer. While we believe that we currently adequately provide for
our members' privacy, our current programs may not conform to legislation or
regulations adopted in the future by the Federal Trade Commission or other
governmental entities. In addition, if unauthorized persons were able to
penetrate our security and gain access to, or otherwise misappropriate, our
members' personal information, we could be subject to liability. Such liability
could include claims for misuses of personal information, such as for
unauthorized marketing purposes or unauthorized use of credit cards. These
claims could result in litigation which could require us to expend significant
financial resources and divert management's attention from operations.
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The European Union adopted a Directive which became effective in October
1998 that imposes restrictions on the collection and use of personal data. Under
the Directive, European Union citizens are guaranteed the right of access to
their data, the right to know where the data originated, the right to have
inaccurate data corrected, the right to recourse in the event of unlawful
processing of information and the right to withhold permission to use their data
for direct marketing. The Directive could affect U.S. companies that collect
information over the Internet from individuals in European Union member
countries and may impose restrictions that are more stringent than current
Internet privacy standards in the United States or our own privacy policies. The
Directive does not, however, define what standards of privacy are adequate. As a
result, the Directive might adversely affect the activities of entities,
including Bolt, that engage in data collection from members in European Union
member countries.
INTERNET TAXATION
A number of legislative proposals have been made by federal, state, local
and foreign governments that would impose additional taxes on the sale of goods
and services over the Internet, and some states have taken measures to tax
Internet-related activities. Although in October 1998 Congress placed a
three-year moratorium on state and local taxes on Internet access or on
discriminatory taxes on electronic commerce, existing state or local laws were
excluded from this moratorium. Further, once this moratorium is lifted, some
type of federal or state taxes may be imposed upon Internet commerce. Such
legislation or other attempts at regulating commerce over the Internet may cause
sales at the Bolt Store to decrease, which would affect our business.
DOMAIN NAMES
Our domain names are our Internet "addresses." Domain names have been the
subject of significant trademark litigation in the United States. We have
applied for registration of certain domain names in the United States and
foreign countries. Third parties might bring claims for infringement against us
for the use of these domain names. Moreover, because domain names derive value
from the individual's ability to remember such names, it is possible that our
domain names could lose their value if, for example, members begin to rely on
mechanisms other than domain names to access online resources.
The current system for registering, allocating and managing domain names
has been the subject of litigation and of proposed regulatory reform. Our domain
names might lose their value, and we might have to obtain entirely new domain
names in addition to or instead of our current domain names if such litigation
or reform efforts result in a restructuring of the current system.
JURISDICTION
Due to the global reach of the Internet, it is possible that the
governments of other states and foreign countries might attempt to regulate our
activities or prosecute us for violations of their laws. This could seriously
affect our business.
In addition, because our products and services are available over the
Internet anywhere in the world, multiple jurisdictions may claim that we are
required to qualify to do business as a foreign corporation in each of those
jurisdictions. Our failure to qualify as a foreign corporation in a jurisdiction
where we are required to do so could subject us to taxes and penalties for the
failure to qualify. It is possible that state and foreign governments might also
attempt to regulate our transmissions of content on our Web sites or prosecute
us for violations of their laws. State or foreign governments might allege or
charge us with violations of local laws, we might unintentionally violate these
laws, and these laws might be modified, or new laws might be enacted, in the
future.
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<PAGE> 50
EMPLOYEES
As of December 6, 1999, we employed a total of 88 full-time employees in
the following areas:
- product development;
- technology;
- sales and business development;
- e-commerce;
- marketing;
- market research; and
- finance and administration.
In addition, about 11 persons provide services to us pursuant to consulting
and/or freelance agreements. To support our anticipated future growth, we expect
to hire additional employees, particularly in the areas of sales and marketing.
None of our employees is represented by unions, and we believe our relations
with our employees are good.
FACILITIES
Our principal offices are located in about 11,500 square feet of leased
space at 304 Hudson Street, New York, New York 10013. The lease for this space
expires February 27, 2007. As we expand, we expect that suitable additional
space will be available on commercially reasonable terms, although no assurance
can be made in this regard. We also currently lease a small office in Chicago,
Illinois pursuant to a lease that expires on December 31, 2000 and a small
office in Los Angeles, California pursuant to a lease that expires on January
31, 2000.
LEGAL
We are not currently involved in any material legal proceedings, nor, to
our knowledge, are any threatened.
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<PAGE> 51
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information concerning our
directors, executive officers and key employees as of December 6, 1999:
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Daniel A. Pelson(2)....................... 33 President, Chief Executive Officer and Director
Jane Mount................................ 28 Executive Vice President of Product Development
Albert G. Pastino......................... 57 Chief Financial Officer
Frank Harrison............................ 38 Senior Vice President of Finance
Mark Stutzman............................. 30 Chief Technology Officer
Jeanne Sachs.............................. 34 Vice President of Ad Sales
Justin Nesci.............................. 30 Vice President of Business Development
Alexa Tobin............................... 31 Vice President of Commerce
David Titus, Ph.D......................... 45 Director of Business Intelligence
Alan Colner(1)............................ 44 Director
Robert Dove(1)............................ 45 Director
Stephen Harrick(2)........................ 29 Director
Samantha McCuen(1)(2)..................... 31 Director
William S. Peabody........................ 28 Director
</TABLE>
- ------------
(1) Member of our Audit Committee
(2) Member of our Compensation Committee
Daniel A. Pelson co-founded Bolt and has served as our President and Chief
Executive Officer and as a director since our inception. Mr. Pelson also serves
as Chairman of the Board of Directors for Concrete Media Construction, a custom
publishing and Web site development company that was spun off from Bolt in
December 1998. Prior to founding Bolt, in 1994 Mr. Pelson created Word, an
online magazine that was acquired by Icon CMT Corporation in 1994. From 1988 to
1993, he served as a marketing, sales and product development executive for Sun
Microsystems where he marketed and sold products and services to the media
industry. Mr. Pelson holds a B.A. in political science and economics from
Colgate University and an M.B.A. from New York University's Stern School of
Business.
Jane Mount co-founded Bolt and has served as our Executive Vice President
of Product Development since October 1998 and also served as our Creative
Director from September 1996 to September 1998. Ms. Mount is responsible for
continually driving the usage statistics of Bolt, and responding to the
constantly evolving needs of the teen marketplace. From November 1995 to August
1996, she served as Design Director of Word, an online magazine which was
acquired by Icon CMT Corporation in 1994. Ms. Mount holds a B.A. from Davidson
College.
Albert G. Pastino has served as our Chief Financial Officer since November
1999. From June 1997 to June 1999, Mr. Pastino served as Senior Vice President
and Treasurer of AmTec, Inc., a telecommunications company. From July 1993 to
March 1997, Mr. Pastino was with Kohlberg and Company, a private equity
investment company, where he served in a variety of positions, including as the
President of Kisco Capital Company, Inc., an affiliate of Kohlberg and Company,
and also served on the boards of directors of a number of Kohlberg & Company's
portfolio companies. From 1989 through 1992, Mr. Pastino served as Senior Vice
President and Chief Operating Officer of Fortis Private Capital, Inc., a private
equity investment company specializing in expansion financings and management
buyouts. Mr. Pastino began his business career at Deloitte & Touche LLP where he
served as a partner. Mr. Pastino also gained investment banking experience while
working at Alex. Brown & Sons, Incorporated and at various times throughout his
career served as the interim chief financial officer of a number of privately
and publicly held companies.
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<PAGE> 52
Frank Harrison has been our Senior Vice President of Finance since
September 1998 and served as our acting Chief Financial Officer from September
1998 to October 1999. From 1991 to 1998, Mr. Harrison was the principal of
Harrison & Company, LLC, a firm he founded in 1991 that provided finance and
accounting services to middle-market advertising, new media, and high-technology
companies, as well as to large, multi-national public companies. From 1987 to
1991, he was a manager in the Stamford, CT office of Coopers & Lybrand in the
Emerging Business Services division. He holds a B.S. in Business Administration
from the University of Dayton.
Mark Stutzman has served as our Chief Technology Officer since July 1999.
From July 1998 to June 1999, Mr. Stutzman served as Executive Director,
Technology at Cyberian Outpost, a leading e-commerce retailer, where he managed
the development, data, system operations and warehouse teams. From 1995 to 1998,
he was employed at IBM where, he oversaw the design and implementation of an
infrastructure that was designed to scale to support over 1,000
business-to-business Web sites for IBM's corporate customers. While at IBM, Mr.
Stutzman also managed all technical facets of ShopIBM, IBM's premiere commerce
site, and served as the technical team leader for IBM Global Service's Web
hosting department. Mr. Stutzman holds a B.A. in English from S.U.N.Y. New Paltz
in New York.
Jeanne Sachs has served as our Vice President of Ad Sales since May 1,
1999. From November 1994 to May 1999, Ms. Sachs served as Advertising Director
of YM, a leading teen-focused magazine. Prior to joining YM, Ms. Sachs held
national advertising sales positions at a number of teen and woman-focused
magazines, including Seventeen, Vogue and Woman's Day. Ms. Sachs holds a B.S. in
International Business and Economics from New York University.
Justin Nesci has been our Vice President of Business Development since
December 1999 and served as our Director of Business Development from April 1999
to December 1999. From March 1997 to March 1999, Mr. Nesci served as an
advertising director for E! Online. From February 1996 to March 1997, Mr. Nesci
managed brand marketing and media sales for 2d Interactive, Inc., a start-up,
interactive media company. From August 1994 to January 1996, Mr. Nesci was a
management consultant at Lochridge & Company. From September 1991 to August
1994, Mr. Nesci was an industry analyst for Dataquest, Inc. Mr. Nesci holds a
B.A. in Organizational Behavior & Management and Political Science from Brown
University.
Alexa Tobin has served as our Vice President of Commerce since May 1999.
From February 1998 to April 1999, Ms. Tobin served as Director of Merchandising
for Music Boulevard/N2K, Inc., a leading e-commerce company. From June 1996 to
July 1997, Ms. Tobin was the Music Director at WXRK-FM in New York City. From
May 1994 to February 1995, Ms. Tobin was the Program Director at WEQX-FM in
Albany, NY. From February 1995 to June 1996, she served as Program Director at
WBRU-FM, in Providence, Rhode Island. From October 1989 to April 1994, Ms. Tobin
worked for Newbury Comics, a leading retailer of music and lifestyle
merchandise, where her duties included store management, buying, and ultimately
managing the entire distribution facility. Ms. Tobin holds a B.A. in political
science from Brown University.
Dr. David Titus has served as our Director of Business Intelligence since
August 1999. From June 1997 to July 1999, Dr. Titus managed consumer research at
Philip Morris. From June 1994 to May 1997, he served as a Client Service
Executive at Eric Marder Associates, a market research consulting company, where
his accounts included Fortune 100 companies in the telecommunications, high tech
and consumer package goods industries. Dr. Titus holds a Ph.D. and M.S. in
Social Psychology from Rutgers University and B.A in psychology from Montclair
State College.
Alan Colner has been a director since November 1998. Since August 1996, he
has served as Managing Director, Private Equity Investments at Moore Capital
Management, Inc. Before Joining Moore Capital, Mr. Colner was a Managing
Director of Corporate Advisors, L.P., the general partner of Corporate Partners,
a private equity fund affiliated with Lazard Freres & Co. LLC. He also serves on
the board of directors of iVillage Inc. and NextCard, Inc. as well as several
private companies. Mr. Colner holds a B.A. from Yale University and an M.B.A.
from the Stanford University Graduate School of Business.
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<PAGE> 53
Robert Dove has been a director since January 1997. Since May 1996, Mr.
Dove has been an Executive Vice President and Managing Director of Bechtel
Enterprises Holdings, Inc., a wholly-owned subsidiary of Bechtel Group, Inc. Mr.
Dove is also a Senior Vice President of Bechtel Group, Inc. From 1985 until
1996, Mr. Dove worked for UBS Securities, an investment banking firm, where he
served as, among other things, a Managing Director. Mr. Dove also serves as a
director of several private companies. Mr. Dove is a graduate of the Forest
School and is a past member of the Institute of bankers in London.
Stephen J. Harrick has been a director since February 1999. Mr. Harrick has
been a Principal at Highland Capital Partners, a venture capital firm focused on
Internet and e-commerce companies, since 1997. Mr. Harrick attended Harvard
Business School from 1995 to 1997. From 1993 to 1995, he worked at Morgan
Stanley & Co. Incorporated as a Financial Analyst specializing in mergers and
acquisitions. Mr. Harrick also serves as a director of several private
companies. He holds a B.A. in History from Yale University and an M.B.A. from
Harvard Business School.
Samantha McCuen has been a director since February 1999. Ms. McCuen is a
Managing Director of Sandler Capital Management, an investment management firm.
Ms. McCuen joined Sandler in 1996 and is currently responsible for analyzing,
structuring and managing Sandler's investments in Internet and technology
companies in the public and private sectors. She is also a Principal of Sandler
Internet Partners, L.P. From 1990 to 1996, Ms. McCuen held both equity research
and investment banking positions at Morgan Stanley & Co. Incorporated where she
specialized in Internet and PC software companies, and was a co-author of The
Internet Report. Ms. McCuen also serves as a director of several private
Internet companies. Ms. McCuen holds a B.A. in Economics from Lehigh University.
William S. Peabody has been a director since February 1999. In September
1992, Mr. Peabody founded Tripod.com, a successful Web site community that had
over four million registered users. He served as the President and Chief
Executive Officer of Tripod until it was sold to Lycos, Inc. in February 1998.
Since February 1998, he has served as the Vice President of Network Strategy for
Lycos. Mr. Peabody is an observer to the Lycos board of directors, and sits on
the board of directors of several private companies, including Streetmail.com
and eZiba.com. Mr. Peabody holds a bachelor's degree in political philosophy and
sociology from Williams College.
BOARD COMPOSITION
Upon completion of this offering, our board of directors will consist of
six members divided into three classes with two members in each class. Each year
the stockholders will elect the members of one of the three classes to a
three-year term of office. Upon completion of this offering, Robert Dove and
Samantha McCuen will serve in the class whose term expires in 2001; Stephen
Harrick and Alan Colner will serve in the class whose term expires in 2002; and
Daniel Pelson and William Peabody will serve in the class whose term expires in
2003.
COMMITTEES OF THE BOARD OF DIRECTORS
Upon completion of this offering, our board of directors will have a
compensation committee, which will make recommendations concerning salaries and
incentive compensation for our employees and consultants, establish and approve
salaries and incentive compensation for our executive officers and administer
our stock plans. Upon completion of this offering, our board of directors will
also have an audit committee, which will review the result and scope of audits
and other services provided by our independent public accountants.
COMPENSATION OF DIRECTORS
Our directors who are also our employees receive no compensation for
serving on the board of directors. We reimburse our non-employee directors for
all travel and other reasonable expenses incurred in attending board of director
and committee meetings. Our non-employee directors are eligible to receive
nonqualified stock option grants under our stock option plans. In April 1999, we
granted William S. Peabody, one of our directors, an option to purchase 48,400
shares of our common stock at an exercise price of $.58 per share. One fourth of
this option becomes exercisable after one year and the remaining portion becomes
exercisable in 36
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<PAGE> 54
equal monthly installments thereafter. We may in the future grant additional
nonqualified stock options to non-employee directors as an incentive to join or
remain on the board of directors.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Upon completion of this offering, the compensation committee of our board
of directors will consist of Daniel Pelson, Samantha McCuen and Stephen Harrick.
Neither Ms. McCuen nor Mr. Harrick has been an officer or employee of Bolt at
any time since our inception. No executive officer of Bolt serves as a member of
the board of directors or compensation committee of any entity that has one or
more executive officers serving as a member of our board of directors or
compensation committee. Prior to the formation of the compensation committee,
the board of directors as a whole made decisions relating to the compensation of
our executive officers.
EXECUTIVE COMPENSATION
The following table sets forth the total compensation paid or accrued
during the year ended December 31, 1998 to our Chief Executive Officer. No other
executive officer earned greater than $100,000 in the year ended December 31,
1998.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
AWARDS
------------
ANNUAL COMPENSATION SHARES
--------------------- UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION SALARY($) BONUS($) OPTIONS(#) COMPENSATION($)
- ---------------------------------- --------- -------- ------------ ---------------
<S> <C> <C> <C> <C>
Daniel A. Pelson.................. $80,000 -- -- --
President and Chief Executive
Officer
</TABLE>
OPTION GRANTS IN LAST FISCAL YEAR
There were no options granted by Bolt to the executive officer named in the
Summary Compensation Table above during our fiscal year ended December 31, 1998.
FISCAL YEAR-END OPTION VALUES
The executive officer named in the Summary Compensation Table above did not
exercise any options during our fiscal year ended December 31, 1998 and did not
hold any stock options as of December 31, 1998.
STOCK PLANS
1999 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK OPTION PLAN
Our 1999 Employee, Director and Consultant Stock Option Plan was approved
by our board of directors and by our stockholders in February 1999. Under this
plan, we may grant incentive stock options and nonqualified stock options. As of
December 6, 1999, a total of 3,077,948 shares of common stock had been reserved
for issuance under this plan. As of December 6, 1999, no shares had been issued
pursuant to options granted under this plan, 2,207,600 shares were subject to
outstanding options and 870,348 shares were available for future grant. On
December 15, 1999, our board of directors voted to increase the number of shares
issuable under this plan to 3,814,000.
Upon completion of this offering, this plan is to be administered by our
Compensation Committee. The Compensation Committee will determine the terms of
options granted pursuant to this plan, including:
- the exercise price and the number of shares subject to each option;
- the vesting schedule for options;
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<PAGE> 55
- the termination or cancellation provisions applicable to options; and
- the conditions relating to our right to reacquire shares subject to
options.
The maximum term of options granted under this plan is ten years.
If we are acquired, the Compensation Committee will provide that
outstanding options under this plan shall be: (1) assumed by the successor or
acquiring company; (2) exercised within a specified number of days or the
options will terminate; or (3) terminated in exchange for a cash payment equal
to the value of the option at the time we are acquired. If we are acquired, the
Compensation Committee may also provide that all outstanding options fully vest.
1997 STOCK OPTION PLAN
Our 1997 Stock Option Plan was approved by our board of directors and by
our stockholders in February 1997. Under this plan we may grant incentive stock
options, nonqualified stock options and stock appreciation rights (SARs). As of
December 6, 1999, a total of 424,544 shares of common stock have been reserved
for issuance under this plan. Of these shares, 38,544 shares have been issued
pursuant to options granted under this plan, 386,000 shares were subject to
outstanding options and no shares were available for future grant.
Upon completion of this offering, this plan is to be administered by our
Compensation Committee. The Compensation Committee will determine the terms of
options granted pursuant to this plan, including:
- the term, exercise price and the number of shares subject to each option
or SAR;
- the form of consideration to be paid upon exercise of options and SARs;
- the vesting schedule for options and SARs; and
- the termination or cancellation provisions applicable to options and
SARs.
The maximum term of options granted under this plan is ten years.
If we are acquired or in the event of a change of control, the Compensation
Committee may provide that certain options or SARs then outstanding for at least
one year shall receive upon exercise an amount equal to the fair market value of
the consideration to be received per share upon acquisition or change of control
minus the applicable exercise price multiplied by the number of shares subject
to such option or SAR. The Compensation Committee may provide that this amount
may be paid in cash, in the kind of property payable in such merger or change of
control or by a combination of cash and property.
401(k) PLAN
We maintain a retirement and deferred savings plan for our employees that
is intended to qualify as a tax-qualified plan under the Internal Revenue Code.
The 401(k) Plan provides that each participant may contribute up to 15% of their
salary up to a statutory limit, which is $10,000 in calendar year 1999. Under
this Plan we may match up to 25% of employee contributions, up to a maximum of
4% of an employee's compensation.
LIMITATION OF DIRECTORS' LIABILITY AND INDEMNIFICATION
The Delaware General Corporation Law authorizes corporations to limit or
eliminate, subject to certain conditions, the personal liability of directors to
corporations and their stockholders for monetary damages for breach of their
fiduciary duties. Our certificate of incorporation limits the liability of our
directors to the fullest extent permitted by Delaware law.
Our certificate of incorporation and bylaws also provide that we will
indemnify any of our directors and officers who, by reason of the fact that he
or she is one of our officers or directors, is involved in a legal proceeding of
any nature. We will repay certain expenses incurred by a director or officer in
connection with any civil or criminal action or proceeding, specifically
including actions by us or in our name (derivative suits). Such indemnifiable
expenses include, to the maximum extent permitted by law, attorney's fees,
judgments, civil or criminal fines, settlement amounts and other expenses
customarily incurred in connection with legal
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<PAGE> 56
proceedings. A director or officer will not receive indemnification if he or she
is found not to have acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interest.
Such limitation of liability and indemnification does not affect the
availability of equitable remedies. In addition, we have been advised that in
the opinion of the SEC, indemnification for liabilities arising under the
Securities Act is against public policy as expressed in the Securities Act and
is therefore unenforceable.
There is no pending litigation or proceeding involving any of our
directors, officers, employees or agents in which indemnification will be
required or permitted. We are not aware of any threatened litigation or
proceeding that may result in a claim for such indemnification.
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CERTAIN TRANSACTIONS
Stock Purchases. The following executive officers, directors or holders of
more than five percent of our voting securities purchased securities in the
amounts as of the dates set forth below. Each share of our Series A-1, Series
A-2, Series B-1, and Series B-2 preferred stock is convertible into four shares
of our common stock. Each share of our Series C preferred stock is convertible
into one share of our common stock.
<TABLE>
<CAPTION>
PREFERRED STOCK
COMMON ---------------------------------------------------------------
STOCK SERIES A-1 SERIES A-2 SERIES B-1 SERIES B-2 SERIES C
---------- ---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C>
DIRECTORS AND EXECUTIVE
OFFICERS
Daniel A. Pelson.......... 2,684,000 -- -- -- -- 9,756
Albert G. Pastino......... -- -- -- -- -- 7,317
Frank Harrison............ -- -- -- 2,828 -- 2,439
William S. Peabody(1)..... -- -- -- 24,193 -- 36,585
Samantha McCuen........... -- -- -- 4,839 -- --
Concrete Media, Inc.(2)... -- -- -- -- -- 4,878
5% STOCKHOLDERS
Bechtel Enterprises
Holdings, Inc.(3)....... -- 600,000 125,000 -- -- 507,317
Sandler Capital
Management(4)........... -- -- -- 459,677 -- 317,072
Highland Capital
Partners(5)............. -- -- -- 483,871 -- 341,463
Oak Investment Partners
VIII, Limited
Partnership............. -- -- -- -- 268,818 195,122
Moore Capital Management,
Inc.(6)................. -- -- -- -- -- 975,610
Price Per Share........... $.00002 $2.50 $3.60 $6.20 $7.44 $10.25
Date(s) of Purchase....... 9/1/96 1/10/97 2/22/99 2/23/99 3/1/99 11/17/99,
11/23/99
and 12/6/99
</TABLE>
- ------------
(1) The 36,585 shares of Series C preferred stock purchased by Mr. Peabody
consist of 16,097 shares purchased by Peabody Sabot Ventures, 19,513 shares
purchased by Peabody Family Ventures and 975 shares purchased by Caribou
Ventures. Mr. Peabody, one of our directors, is the Managing General Partner
of each of these entities.
(2) Dan Pelson, our President and Chief Executive Officer, Jane Mount, our
Executive Vice President of Product Development, Frank Harrison, our Senior
Vice President of Finance, and Bechtel Enterprises Holdings, Inc., a five
percent stockholder, own a total of 87% of the stock of this company.
(3) Robert Dove, one of our directors, is an Executive Vice President and
Managing Director of Bechtel Enterprises Holdings, Inc.
(4) Samantha McCuen, one of our directors, is a Managing Director of Sandler
Capital Management.
(5) Stephen J. Harrick, one of our directors, is a Principal of Highland Capital
Partners.
(6) Alan Colner, one of our directors, is Managing Director, Private Equity
Investments of Moore Capital Management, Inc.
We have entered into the following agreements and transactions with our
executive officers, directors and holders of more than five percent of our
voting securities:
Amended and Restated Registration Rights Agreement. Bolt, Daniel A.
Pelson, our President and Chief Executive Officer, the preferred stockholders
listed above and other stockholders have entered into an agreement, pursuant to
which they will have registration rights with respect to their shares of common
stock following this offering. See "Description of Capital Stock -- Registration
Rights" for a more detailed description of the terms of this agreement.
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<PAGE> 58
Sale of custom publishing division. On December 30, 1998, we sold our
custom publishing division that provided Web site development services to third
parties to Concrete Media Construction, LLC. In consideration we received:
- A promissory note in the amount of $315,000, bearing interest at a rate
equal to the Federal Rate, as defined by the Internal Revenue Code. This
note is due and payable in full on December 31, 2001.
- A promissory note in the amount of $105,000, bearing interest at the
Federal Rate. This note was guaranteed by the individuals and entity
listed below and was due and payable in full on January 15, 1999. It was
paid in full on January 29, 1999.
At the time of this transaction, Dan Pelson, our President and Chief Executive
Officer, Jane Mount, our Executive Vice President of Product Development, Frank
Harrison, our Senior Vice President of Finance, and Bechtel Enterprises
Holdings, Inc., a five percent stockholder, held a total of 87% of the equity
interest in Concrete Media Construction.
After this transaction, we rented space and provided financial,
administrative and accounting services to Concrete Media Construction. Concrete
Media Construction also provided the services of an information services
employee to us. Concrete Media Construction has paid us about $103,000 for rent
and the financial, administrative and accounting services we have provided. We
have paid Concrete Media Construction about $25,000 for the services they have
provided to us. On October 1, 1999, Concrete Media Construction, LLC was
reorganized as a Delaware corporation and renamed Concrete Media, Inc. The
officers and five percent stockholder mentioned above hold the same total
percentage of the equity of Concrete Media, Inc. as they held in Concrete Media
Construction, LLC. We are currently providing only minimal administrative
services to Concrete Media, Inc.
Sale of Girls On division. On January 29, 1999, we sold our Girls On
division to Girls On, Inc., a wholly-owned subsidiary of Concrete Media
Construction, in exchange for the assumption by Girls On, Inc. of all current
and future liabilities of this division. The agreement for this sale also
included a provision entitling us to receive additional contingent consideration
if Girls On, Inc. was sold by Concrete Media Construction to a third party. On
August 5, 1999, Concrete Media Construction sold Girls On, Inc. to Oxygen Media,
LLC. Pursuant to the contingent consideration provision of the agreement, we
received $386,000 in cash as well as equity securities in Oxygen Media valued at
$1,050,000.
Bechtel Enterprises Holding, Inc. On January 22, 1998, we issued a
promissory note to Bechtel in the principal amount of $500,000 with an interest
rate of ten percent per year. This note was due and payable in full upon the
demand of Bechtel at any time after July 22, 1998. In February 1999, this note
was converted in exchange for:
- $52,466 in cash as full and final consideration for the payment of the
interest on this note;
- $50,000 in cash as a payment of a portion of the principal of this note;
and
- 125,000 shares of our Series A-2 Convertible Preferred Stock.
Bechtel is a five percent stockholder and Robert Dove, one of our directors, is
an Executive Vice President and Managing Director of Bechtel.
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PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of our common stock as of December 6, 1999, and as adjusted to reflect
the sale of our common stock offered by this prospectus by:
- the executive officer named in the Summary Compensation Table;
- each of our directors;
- all of our current directors and executive officers as a group; and
- each stockholder known by us to own beneficially more than five percent
of our common stock.
Beneficial ownership is determined in accordance with the rules of the SEC
and includes voting or investment power with respect to the securities. Shares
of common stock that may be acquired by an individual or group within 60 days of
December 6, 1999, pursuant to the exercise of options or warrants are deemed to
be outstanding for the purpose of computing the percentage ownership of such
individual or group, but are not deemed to be outstanding for the purpose of
computing the percentage ownership of any other person shown in the table.
Percentage of ownership is based on 14,973,965 shares of common stock
outstanding on December 6, 1999, which assumes the conversion of all outstanding
shares of preferred stock into common stock, and shares of common
stock outstanding after the completion of this offering.
Except as indicated in footnotes to this table, we believe that the
stockholders named in this table have sole voting and investment power with
respect to all shares of common stock shown to be beneficially owned by them
based on information provided to us by such stockholders. Unless otherwise
indicated, the address for each director and executive officer listed is: c/o
Bolt, Inc., 304 Hudson Street, 7th Floor, New York, NY 10013.
<TABLE>
<CAPTION>
PERCENTAGE OF
COMMON STOCK
BENEFICIALLY OWNED
---------------------------
NUMBER OF SHARES BEFORE AFTER
BENEFICIAL OWNER BENEFICIALLY OWNED OFFERING OFFERING
- --------------------------------------------- ------------------ --------------- --------
<S> <C> <C> <C>
DIRECTORS AND EXECUTIVE OFFICERS
Daniel A. Pelson(1).......................... 2,993,434 20.0%
Robert Dove(2)............................... 3,412,195 22.8
Samantha McCuen(3)........................... 2,175,136 14.5
Stephen J. Harrick(4)........................ 2,276,947 12.9
Alan Colner(5)............................... 975,610 6.5
William S. Peabody(6)........................ 133,357 *
All current executive officers and directors
as a group (14 persons)(7)................. 12,579,681 84.0
FIVE PERCENT STOCKHOLDERS
Bechtel Enterprises Holdings, Inc.(2)........ 3,412,195 22.8
Highland Capital Partners(4)................. 2,276,947 15.2
Sandler Capital Management(3)................ 2,155,780 14.4
Oak Investment Partners VIII, Limited
Partnership(8)............................. 1,270,394 8.5
Moore Capital Management, Inc.(5)............ 975,610 6.5
</TABLE>
- ------------
* Represents beneficial ownership of less than 1% of the shares of Common
Stock.
(1) Includes 4,878 shares held by Concrete Media, Inc. Mr. Pelson owns 38% of
the equity securities of Concrete Media. He disclaims beneficial ownership
of these shares except to the extent of his proportional pecuniary interest
in these shares.
(2) Consists of 3,407,317 shares held by Bechtel Enterprises Holdings, Inc. and
4,878 shares held by Concrete Media, Inc. Bechtel owns 37% of the equity
securities of Concrete Media. Bechtel disclaims beneficial ownership of
these shares except to the extent of its
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<PAGE> 60
proportional pecuniary interest in these shares. Mr. Dove is an Executive
Vice President and Managing Director of Bechtel and disclaims beneficial
ownership of these shares. Bechtel is located at 50 California Street--Suite
2200, San Francisco, California 94111.
(3) Includes 1,451,736 shares held by Sandler Capital Partners IV, L.P., 594,289
shares held by Sandler Capital Partners IV FTE, L.P. and 109,755 shares held
by Sandler Internet Partners, L.P. Ms. McCuen is a Managing Director of
Sandler Capital Management and disclaims beneficial ownership of these
shares except to the extent of her proportional pecuniary interest in these
shares. Sandler Capital Management is located at 767 Fifth Avenue--45th
Floor, New York, New York 10153.
(4) Consists of 2,185,868 shares held by Highland Capital Partners IV Limited
Partnership and 91,079 shares held by Highland Entrepreneurs Fund IV Limited
Partnership. Highland Capital Partners manages these two entities. Mr.
Harrick is a Principal of Highland Capital Partners and disclaims beneficial
ownership of these shares. Highland Capital Partners IV Limited Partnership
and Highland Entrepreneurs Fund IV Limited Partnership each disclaim
beneficial ownership of the shares owned by the other entity. Highland
Capital Partners is located at 2 International Place--22nd Floor, Boston,
Massachusetts 02110.
(5) Includes 780,488 shares held by Moore Global Investments, Ltd and 195,122
shares held by Remington Investments Strategies, L.P. Moore Capital
Management, Inc., a Connecticut corporation, is vested with investment
discretion with respect to portfolio assets held for the account of Moore
Global Investments. Moore Capital Advisors, L.L.C., a New York limited
liability company, is the sole general partner of Remington Investment
Strategies. Mr. Louis M. Bacon is the majority shareholder of Moore Capital
Management, Inc., and is the majority equity holder of Moore Capital
Advisors, L.L.C. As a result, Mr. Bacon, though he disclaims beneficial
ownership of the shares, may be deemed to be the beneficial owner of the
aggregate shares held by Moore Global Investments and Remington Investment
Strategies. Alan Colner is Managing Director, Private Equity Investments of
Moore Capital Management, Inc., which is the trading advisor of Moore Global
Investments. He is also a director of Bolt. Mr. Colner does not have voting
or investment power with respect to the shares of securities owned by Moore
Global Investments or Remington Investment Strategies, and disclaims
beneficial ownership of the shares. Moore Capital Management, Inc. is
located at 1251 Avenue of the Americas, New York, New York 10020.
(6) Includes 67,897 shares held by Peabody Family Ventures of which Mr. Peabody
is the Managing General Partner, 48,353 shares held by Peabody Sabot
Ventures of which Mr. Peabody is the Managing General Partner and 975 shares
held by Caribou Ventures of which Mr. Peabody is the Managing General
Partner.
(7) Includes 8,937,757 shares held by entities affiliated with our directors and
executive officers. See footnotes 1 through 6 above. Also includes 585,800
shares issuable upon options exercisable within 60 days of December 6, 1999.
(8) Includes 24,139 shares held by Oak VIII Affiliates Fund, Limited
Partnership. Oak Investment Partners VIII, Limited Partnership is located at
One Gorham Island, Westport, Connecticut 06880.
55
<PAGE> 61
DESCRIPTION OF CAPITAL STOCK
Upon completion of this offering, we will be authorized to issue 50,000,000
shares of common stock, $.001 par value per share, and 5,000,000 shares of
preferred stock, $.001 par value per share, and there will be
shares of common stock and no shares of preferred stock outstanding. Assuming
the conversion of our preferred stock, as of December 6, 1999, we had 14,973,965
shares of common stock outstanding held of record by 49 stockholders, and there
were outstanding options to purchase 2,593,600 shares of common stock and
outstanding warrants to purchase 47,900 shares of common stock.
COMMON STOCK
Holders of common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders, and do not have
cumulative voting rights. Subject to preferences that may be applicable to any
outstanding shares of preferred stock, holders of common stock are entitled to
receive ratably such dividends, if any, as may be declared from time to time by
our board of directors out of funds legally available for dividend payments. All
outstanding shares of common stock are fully paid and nonassessable, and the
holders of common stock have no preferences or rights of conversion, exchange or
pre-emption. In the event of any liquidation, dissolution or winding-up of our
affairs, holders of common stock will be entitled to share ratably in our assets
that are remaining after payment or provision for payment of all of our debts
and obligations and after liquidation payments to holders of outstanding shares
of preferred stock, if any.
PREFERRED STOCK
The preferred stock, if issued, would have priority over the common stock
with respect to dividends and other distributions, including the distribution of
assets upon liquidation. Our board of directors has the authority, without
further stockholder authorization, to issue from time to time shares of
preferred stock in one or more series and to fix the terms, limitations,
relative rights and preferences and variations of each series. Although we have
no present plans to issue any shares of preferred stock, the issuance of shares
of preferred stock, or the issuance of rights to purchase such shares, could
decrease the amount of earnings and assets available for distribution to the
holders of common stock, could adversely affect the rights and powers, including
voting rights, of the common stock, and could have the effect of delaying,
deterring or preventing a change in control of Bolt or an unsolicited
acquisition proposal.
WARRANTS
As of December 6, 1999, the following warrants were outstanding.
- A warrant to purchase 40,000 shares of our common stock was outstanding
at an exercise price of $.025 per share. This warrant expires on April
22, 2009.
- A warrant to purchase 1,975 shares of our Series B-3 Convertible
Preferred Stock was outstanding at an exercise price of $30.37 per
share. Upon completion of this offering, this warrant will automatically
convert into a warrant to purchase 7,900 shares of our common stock at
an exercise price of $7.59 per share. This warrant expires on August 31,
2006.
Each of these warrants contains provisions for the adjustment of the exercise
price and the aggregate number of shares issuable upon the exercise of the
warrant in the event of stock dividends, stock splits, reorganizations, and
reclassifications and consolidations.
REGISTRATION RIGHTS
The holders of the following shares of our common stock are entitled to
certain registration rights with respect to those shares. These registration
rights are subject to certain conditions and limitations, including the right of
the underwriters of an offering to limit the number of shares included in any
such registration under certain circumstances. All expenses incurred in
connection with registrations effected in connection with the following rights
will be borne by us.
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<PAGE> 62
Demand Rights. Beginning 180 days after completion of this offering:
- The holders of 11,147,620 shares of common stock and 890,500 shares of
common stock issuable upon the exercise of outstanding options and
warrants will have certain rights to cause us to register those shares
under the Securities Act. We may be required to effect up to three such
registrations.
- The holders of 3,787,801 shares of common stock will the right, on one
occasion, to cause us to register those shares under the Securities Act.
Stockholders with these registration rights who are not part of an initial
registration demand are entitled to notice and are entitled to include their
shares of common stock in the registration.
Piggyback Rights. If at any time after this offering we propose to
register any of our equity securities under the Securities Act, other than in
connection with
- a registration relating solely to our stock option plans or other
employee benefit plans, or
- a registration relating solely to a business combination or merger
involving us,
the holders of 14,935,421 shares of common stock and 890,500 shares of common
stock issuable upon the exercise of outstanding options and warrants are
entitled to notice of such registration and are entitled to include their common
stock in the registration.
Shelf Registration Rights. In addition, the holders of 14,935,421 shares
of common stock and 890,500 shares of common stock issuable upon the exercise of
outstanding options and warrants will have the right to cause us to register
these shares on a Form S-3, provided that we are eligible to use this form.
There is no limit to the number of registrations on Form S-3 that we may be
required to effect, except that we will not be required to effect such a
registration unless the aggregate offering price of the shares to be registered,
based on the then current market price, is at least $1.0 million. Stockholders
with these registration rights who are not part of an initial registration
demand are entitled to notice and are entitled to include their shares of common
stock in the registration.
DELAWARE LAW AND CERTAIN CHARTER AND BY-LAW PROVISIONS
The provisions of Delaware law and of our certificate of incorporation and
by-laws discussed below could discourage or make it more difficult to accomplish
a proxy contest or other change in our management or the acquisition of control
by a holder of a substantial amount of our voting stock. It is possible that
these provisions could make it more difficult to accomplish, or could deter,
transactions that stockholders may otherwise consider to be in their best
interests or the best interests of Bolt.
Delaware Statutory Business Combinations Provision. We are subject to the
anti-takeover provisions of Section 203 of the Delaware General Corporations
Law. In general, Section 203 prohibits a publicly-held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is, or the
transaction in which the person became an interested stockholder was, approved
in a prescribed manner or another prescribed exception applies. For purposes of
Section 203, a "business combination" is defined broadly to include a merger,
asset sale or other transaction resulting in a financial benefit to the
interested stockholder, and, subject to certain exceptions, an "interested
stockholder" is a person who, together with his or her affiliates and
associates, owns (or within three years prior, did own) 15% or more of the
corporation's voting stock.
Classified Board of Directors. Upon completion of this offering, our board
of directors will be divided into three classes. Each year the stockholders will
elect the members of one of the three classes to a three-year term of office.
All directors elected to our classified board of directors will serve until the
election and qualification of their respective successors or their earlier
resignation or removal. The board of directors is authorized to create new
directorships and to fill such positions so created and is permitted to specify
the class to which any such new position is assigned. The person filling such
position would serve for the term applicable to that class. The board of
directors (or its remaining members, even if less than a quorum) is also
empowered
57
<PAGE> 63
to fill vacancies on the board of directors occurring for any reason for the
remainder of the term of the class of directors in which the vacancy occurred.
Members of the board of directors may only be removed for cause. These
provisions are likely to increase the time required for stockholders to change
the composition of the board of directors. For example, in general, at least two
annual meetings will be necessary for stockholders to effect a change in a
majority of the members of the board of directors.
Advance Notice Provisions for Stockholder Proposals and Stockholder
Nominations of Directors. Our by-laws provide that, for nominations to the
board of directors or for other business to be properly brought by a stockholder
before a meeting of stockholders, the stockholder must first have given timely
notice of the proposal in writing to our Secretary. For an annual meeting, a
stockholder's notice generally must be delivered not less than 45 days nor more
than 75 days prior to the anniversary of the mailing date of the proxy statement
for the previous year's annual meeting. For a special meeting, the notice must
generally be delivered by the later of 90 days prior to the special meeting or
ten days following the day on which public announcement of the meeting is first
made. Detailed requirements as to the form of the notice and information
required in the notice are specified in the by-laws. If it is determined that
business was not properly brought before a meeting in accordance with our by-law
provisions, such business will not be conducted at the meeting.
Special Meetings of Stockholders. Special meetings of the stockholders may
be called only by our board of directors pursuant to a resolution adopted by a
majority of the total number of directors.
No Stockholder Action by Written Consent. Our certificate of incorporation
does not permit our stockholders to act by written consent. As a result, any
action to be effected by our stockholders must be effected at a duly called
annual or special meeting of the stockholders.
Super-Majority Stockholder Vote required for Certain Actions. The Delaware
General Corporation Law provides generally that the affirmative vote of a
majority of the shares entitled to vote on any matter is required to amend a
corporation's certificate of incorporation or by-laws, unless the corporation's
certificate of incorporation or by-laws, as the case may be, requires a greater
percentage. Our certificate of incorporation requires the affirmative vote of
the holders of at least 80% of our outstanding voting stock to amend or repeal
any of the provisions discussed in this section of this prospectus entitled
"Delaware Law and Certain Charter and By-law Provisions". This 80% stockholder
vote would be in addition to any separate class vote that might in the future be
required pursuant to the terms of any preferred stock that might then be
outstanding. A 80% vote is also required for any amendment to, or repeal of, our
by-laws by the stockholders. Our by-laws may be amended or repealed by a simple
majority vote of the board of directors.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock will be American
Stock Transfer and Trust Company.
LISTING
We will complete an application for listing our common stock on the Nasdaq
National Market under the symbol "BOLT."
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<PAGE> 64
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for our common stock.
Future sales of substantial amounts of our common stock in the public market
could adversely affect market prices prevailing from time to time. Furthermore,
because only a limited number of shares will be available for sale shortly after
this offering due to existing contractual and legal restrictions on resale as
described below, there may be sales of substantial amounts of our common stock
in the public market after the restrictions lapse. This may adversely affect the
prevailing market price and our ability to raise equity capital in the future.
Upon completion of this offering, we will have shares of common
stock outstanding, assuming no exercise of options and warrants outstanding as
of December 6, 1999, and the conversion of all outstanding shares of preferred
stock. Of these shares, the shares sold in this offering will be
freely transferable without restriction or registration under the Securities
Act, except for any shares purchased by one of our existing "affiliates," as
that term is defined in Rule 144 under the Securities Act. The remaining
14,973,965 shares of common stock existing are "restricted shares" as defined in
Rule 144. Restricted shares may be sold in the public market only if registered
or if they qualify for an exemption from registration under Rules 144 or 701 of
the Securities Act. As a result of the contractual 180-day lock-up period
described below and the provisions of Rules 144 and 701, these shares will be
available for sale in the public market as follows:
<TABLE>
<CAPTION>
NUMBER OF SHARES DATE
- ------------------------------------------ ----------------------------------------------
<S> <C>
.......................................... On the date of this prospectus.
................................ After 90 days from the date of this
prospectus.
................................ After 180 days from the date of this
prospectus (subject, in some cases, to volume
limitations).
................................ At various times after 180 days from the date
of this prospectus (subject, in some cases, to
volume limitations).
</TABLE>
LOCK-UP AGREEMENTS
Bolt, our directors and executive officers and certain of our stockholders
and option holders have each agreed not to offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of common stock or
any securities convertible into or exercisable or exchangeable for common stock,
for a period of 180 days after the date of this prospectus, without the prior
written consent of Morgan Stanley & Co. Incorporated, subject to limited
exceptions. Morgan Stanley & Co. Incorporated, however, may in its sole
discretion, at any time without notice, release all or any portion of the shares
subject to lock-up agreements.
RULE 144
In general, under Rule 144 as currently in effect, beginning 90 days after
this offering, a person, or persons whose shares are aggregated, who owns shares
that were purchased from us, or any affiliate, at least one year previously, is
entitled to sell within any three-month period a number of shares that does not
exceed the greater of 1% of our then-outstanding shares of common stock, which
will equal about shares immediately after this offering, or the average
weekly trading volume of our common stock on the Nasdaq National Market during
the four calendar weeks preceding the filing of a notice of the sale on Form
144. Sales under Rule 144 are also subject to manner of sale provisions, notice
requirements and the availability of current public information about us. Any
person, or persons whose shares are aggregated who is not deemed to have been
one of our affiliates at any time during the three months preceding a sale, and
who owns shares within the definition of "restricted securities" under Rule 144
that were purchased from us, or any affiliate, at least two years previously,
would be entitled to sell shares under Rule 144(k) without regard to the volume
limitations, manner of sale provisions, public information requirements or
notice requirements.
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<PAGE> 65
RULE 701
Subject to limitations on the aggregate offering price of a transaction and
other conditions, Rule 701 may be relied upon with respect to the resale of
securities originally purchased from us by our employees, directors, officers or
consultants prior to the date we become subject to the reporting requirements of
the Securities Exchange Act of 1934, or the Exchange Act, under written
compensatory benefit plans or written contracts relating to the compensation of
these persons. In addition, the Securities and Exchange Commission has indicated
that Rule 701 will apply to typical stock options granted by an issuer before it
becomes subject to the reporting requirements of the Exchange Act, along with
the shares acquired upon exercise of the options, including exercises after the
date of this prospectus. Securities issued in reliance on Rule 701 are
restricted securities and, subject to the contractual restrictions described
above, beginning 90 days after the date of this prospectus, may be sold by
persons other than affiliates subject only to the manner of sale provisions of
Rule 144 and by affiliates under Rule 144 without compliance with its minimum
holding period requirements.
REGISTRATION RIGHTS
Upon completion of this offering, the holders of about 14,935,421 shares of
common stock and 890,500 shares of common stock issuable upon the exercise of
outstanding options and warrants shares of common stock or their transferees,
will be entitled to various rights with respect to the registration of these
shares under the Securities Act. Registration of these shares under the
Securities Act would result in these shares becoming freely tradable without
restriction under the Securities Act immediately upon the effectiveness of the
registration, except for shares purchased by affiliates. See "Description of
Capital Stock--Registration Rights" for a more complete description of these
registration rights.
STOCK OPTIONS
As of December 6, 1999, options to purchase a total of 2,593,600 shares of
common stock under our stock option plans were outstanding and 1,017,183 were
exercisable. of the shares subject to options are subject to
lock-up agreements. An additional 870,348 shares of common stock were available
for future option grants under our stock plans.
Upon completion of this offering, we intend to file a registration
statement under the Securities Act covering all shares of common stock subject
to outstanding options or issuable pursuant to our stock option plans. Subject
to Rule 144 volume limitations applicable to affiliates, shares registered under
any registration statements will be available for sale in the open market,
beginning 90 days after the date of the prospectus, except to the extent that
the shares are subject to vesting restrictions with us or the contractual
restrictions described above.
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<PAGE> 66
UNDERWRITERS
Under the terms and subject to the conditions contained in an underwriting
agreement dated the date of this prospectus, the underwriters named below, for
whom Morgan Stanley & Co. Incorporated, Thomas Weisel Partners LLC and J.P.
Morgan Securities Inc. are acting as representatives, have severally agreed to
purchase and we have agreed to sell to them, the respective number of shares of
common stock set forth opposite the names of these underwriters below:
<TABLE>
<CAPTION>
NUMBER OF
NAME SHARES
- ---- ---------
<S> <C>
Morgan Stanley & Co. Incorporated...........................
Thomas Weisel Partners LLC..................................
J.P. Morgan Securities Inc..................................
Total.............................................
========
</TABLE>
The underwriters are offering the shares of common stock subject to their
acceptance of the shares from us and subject to prior sale. The underwriting
agreement provides that the obligations of the several underwriters to pay for
and accept delivery of the shares of common stock offered by this prospectus are
subject to the approval of specified legal matters by their counsel and to other
conditions. The underwriters are obligated to take and pay for all of the shares
of common stock offered by this prospectus, except those shares covered by the
over-allotment option described below, if any shares are taken.
The underwriters initially propose to offer part of the shares of common
stock directly to the public at the public offering price set forth on the cover
page of this prospectus and a portion to some dealers at a price that represents
a concession not in excess of $ per share under the public offering price.
Any underwriter may allow, and these dealers may reallow, a concession not in
excess of $ per share to other underwriters or to other dealers. After the
initial offering of the shares of common stock, the offering price and other
selling terms may from time to time be varied by the representatives.
We have granted to the underwriters an option, exercisable for 30 days from
the date of this prospectus, to purchase up to an aggregate of additional
shares at the public offering price set forth on the cover page of this
prospectus, less underwriting discounts and commissions. The underwriters may
exercise this option solely for the purpose of covering over-allotments, if any,
made in connection with the offering of the shares offered by this prospectus.
To the extent this option is exercised, each underwriter will become obligated,
subject to specified conditions, to purchase about the same percentage of
additional shares as the number set forth next to the underwriter's name in the
preceding table bears to the total number of shares set forth next to the names
of all underwriters in the preceding table. If the underwriters exercise the
over-allotment option in full, the total price to the public for this offering
would be $ , the total underwriting discounts and commissions would be
$ and the total proceeds to Bolt would be $ .
The underwriters have informed us that they do not intend sales to
discretionary accounts to exceed five percent of the total number of shares of
common stock offered by them.
At our request, the underwriters have reserved up to shares of
common stock offered by this prospectus for sale at the initial public offering
price to some of our directors, officers, employees, business associates and
related persons of Bolt. The number of shares available for sale to the general
public will be reduced to the extent that these persons purchase these reserved
shares. Any reserved shares not so purchased will be offered by the underwriters
to the general public on the same basis as the other shares offered by this
prospectus.
Bolt has applied to list the common stock on the Nasdaq National Market
under the symbol "BOLT."
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<PAGE> 67
Bolt, our directors and executive officers and certain of our stockholders
and option holders have each agreed that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the underwriters, he, she or it
will not, during the period ending 180 days after the date of this prospectus:
- offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of,
directly or indirectly, any shares of common stock or any securities
convertible into or exercisable or exchangeable for common stock; or
- enter into any swap or other agreement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the
common stock,
whether any transaction described above is to be settled by delivery of common
stock or such other securities, in cash or otherwise.
The restrictions described in the immediately preceding paragraph do not
apply to:
- the issuance by us of shares of common stock upon the exercise of an
option or a warrant or the conversion of a security outstanding on the
date of this prospectus of which the underwriters have been advised in
writing; or
- transactions by any person other than Bolt relating to shares of common
stock or other securities acquired in open market transactions after the
completion of this offering.
In order to facilitate the offering of the common stock, the underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of the common stock. Specifically, the underwriters may over-allot in
connection with the offering, creating a short position in the common stock for
their own account. In addition, to cover over-allotments or to stabilize the
price of the common stock, the underwriters may bid for, and purchase, shares of
common stock in the open market. Finally, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing the
common stock in the offering, if the syndicate repurchases previously
distributed shares of common stock in transactions to cover syndicate short
positions, in stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the common stock above independent
market levels. The underwriters are not required to engage in these activities,
and may end any of these activities at any time.
Bolt and the underwriters have agreed to indemnify each other against
certain liabilities, including liabilities under the Securities Act.
Thomas Weisel Partners LLC, one of the representatives of the underwriters,
was organized and registered as a broker-dealer in December 1998. Since December
1998, Thomas Weisel Partners has been named as a lead or co-manager on 98 filed
public offerings of equity securities, of which 78 have been completed, and has
acted as a syndicate member in an additional 53 public offerings of equity
securities. Thomas Weisel Partners does not have any material relationship with
us or any of our officers, directors or other controlling persons, except with
respect to its contractual relationship with us pursuant to the underwriting
agreement entered into in connection with this offering.
PRICING OF THE OFFERING
Prior to this offering, there has been no public market for the common
stock. Consequently, the initial public offering price will be determined by
negotiations between us and the representatives of the underwriters. Among the
factors to be considered in determining the initial public offering price will
be:
- the future prospects of Bolt and its industry in general;
- sales, earnings and certain other financial and operating information of
Bolt in recent periods; and
- the price-earnings ratios, price-sales ratios, market prices of
securities and certain financial and operating information of companies
engaged in activities similar to those of Bolt.
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<PAGE> 68
The estimated initial public offering price range set forth on the cover
page of this prospectus is subject to change as a result of market conditions
and other factors.
LEGAL MATTERS
The validity of the issuance of the common stock offered by us in this
offering will be passed upon for us by Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., Boston, Massachusetts. As of the date of this prospectus, persons
and entities affiliated with Mintz Levin own an aggregate of 9,759 shares of our
common stock. The underwriters are being represented by Davis Polk & Wardwell,
New York, New York.
EXPERTS
The financial statements of Bolt as of and for the nine months ended
September 30, 1999 and for the years ended December 31, 1998 and December 31,
1997 and for the period of August 15, 1996 through December 31, 1996, included
in this prospectus, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports appearing in this prospectus and are
included in reliance upon the reports of that firm given upon their authority as
experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on Form S-1 under the
Securities Act, with respect to the common stock offered by this prospectus.
This prospectus, which is part of the registration statement, omits certain
information, exhibits, schedules and undertakings set forth in the registration
statement. For further information pertaining to us and our common stock,
reference is made to the registration statement and the exhibits and schedules
to the registration statement. Statements contained in this prospectus as to the
contents or provisions of any documents referred to in this prospectus are not
necessarily complete, and in each instance where a copy of the document has been
filed as an exhibit to the registration statement, reference is made to the
exhibit for a more complete description of the matters involved.
You may read and copy all or any portion of the registration statement
without charge at the office of the SEC at 450 Fifth Street, N.W., Washington,
D.C. 20549. Copies of the registration statement may be obtained from the SEC at
prescribed rates from the Public Reference Section of the SEC at such address,
and at the SEC's regional offices located at 7 World Trade Center, 13th Floor,
New York, New York 10048, and at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. In addition, registration statements and certain
other filings made with the SEC electronically are publicly available through
the SEC's Web site at http://www.sec.gov. The registration statement, including
all exhibits and amendments to the registration statement, has been filed
electronically with the SEC.
63
<PAGE> 69
BOLT, INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Independent Auditors' Report................................ F-2
Balance Sheets as of December 31, 1997 and 1998 and
September 30, 1999.......................................... F-3
Statements of Operations for the period August 15, 1996
(date of inception) to December 31, 1996, for the years
ended December 31, 1997 and 1998 and for the nine months
ended September 30, 1998 (unaudited) and 1999............. F-4
Statements of Stockholders' Equity (Deficiency) for the
period August 15, 1996 (date of inception) to December 31,
1996, for the years ended December 31, 1997 and 1998 and
for the nine months ended September 30, 1999.............. F-5
Statements of Cash Flows for the period August 15, 1996
(date of inception) to December 31, 1996, for the years
ended December 31, 1997 and 1998 and for the nine months
ended September 30, 1998 (unaudited) and 1999............. F-6
Notes to Financial Statements............................... F-7
</TABLE>
F-1
<PAGE> 70
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
Bolt, Inc.
We have audited the accompanying balance sheets of Bolt, Inc. (the
"Company") as of December 31, 1997 and 1998 and September 30, 1999, and the
related statements of operations, stockholders' equity (deficiency) and cash
flows for the period August 15, 1996 (date of inception) to December 31, 1996,
for each of the two years in the period ended December 31, 1998 and for the nine
months ended September 30, 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such financial statements present fairly, in all material
respects, the financial position of the Company at December 31, 1997, 1998 and
September 30, 1999, and the results of its operations and its cash flows for the
period August 15, 1996 (date of inception) to December 31, 1996, for each of the
two years in the period ended December 31, 1998 and for the nine months ended
September 30, 1999, in conformity with generally accepted accounting principles.
/s/ DELOITTE & TOUCHE LLP
New York, New York
December 6, 1999
F-2
<PAGE> 71
BOLT, INC.
BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1997 1998 1999
------------ ------------ -------------
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents............................... $ 184 $ 194 $ 3,637
Accounts receivable, net of allowance for doubtful
accounts of $0, $11 and $101 as of December 31, 1997,
1998 and September 30, 1999, respectively............ 150 338 1,062
Prepaid expenses and other current assets............... 61 -- 356
------- ------- -------
Total current assets............................ 395 532 5,055
Property and equipment, net............................... 242 454 2,377
Investments............................................... -- -- 1,050
Other assets.............................................. 25 47 270
------- ------- -------
Total assets.............................................. $ 662 $ 1,033 $ 8,752
======= ======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
Current liabilities:
Accounts payable........................................ $ 172 $ 246 $ 1,757
Accrued expenses........................................ 95 234 329
Short-term debt......................................... -- -- 500
Current portion of note payable and capital lease
obligations.......................................... -- 182 338
------- ------- -------
Total current liabilities....................... 267 662 2,924
Deferred revenues......................................... -- 53 51
Convertible promissory note............................... -- 450 --
Note payable.............................................. -- 320 297
Capital lease obligations, less current portion........... -- 178 578
------- ------- -------
Total liabilities......................................... 267 1,663 3,850
------- ------- -------
Commitments
Redeemable convertible preferred stock:
Series B-1 convertible preferred stock, $.001 par value;
no shares authorized, issued and outstanding, 1997
and 1998; 1,048,387 shares authorized, issued and
outstanding, 1999 ................................... -- -- 6,132
Series B-2 convertible preferred stock, $.001 par value;
no shares authorized, issued and outstanding, 1997
and 1998; 268,818 shares authorized, issued and
outstanding, 1999 ................................... -- -- 1,887
------- ------- -------
Total redeemable convertible preferred stock ............. -- -- 8,019
------- ------- -------
Stockholders' equity (deficiency):
Common stock, $.001 par value; 16,000,000 shares
authorized; 4,400,000 shares issued and outstanding,
1997; 4,400,000 shares issued and 2,978,800 shares
outstanding, 1998; and 4,438,544 shares issued and
3,017,344 shares outstanding, 1999 .................. 4 4 4
Series A-1 convertible preferred stock, $.001 par value;
600,000 shares authorized, issued and outstanding,
1997, 1998 and 1999 ................................. 1 1 1
Series A-2 convertible preferred stock, $.001 par value;
no shares authorized, issued and outstanding, 1997
and 1998; 125,000 shares authorized, issued and
outstanding, 1999 ................................... -- -- --
Additional paid-in capital.............................. 1,593 1,987 7,781
Warrants................................................ -- -- 1,521
Deferred financing costs................................ -- -- (633)
Accumulated deficit..................................... (1,203) (1,741) (6,139)
Deferred compensation................................... -- -- (4,876)
Note receivable from related party...................... -- (420) (315)
Treasury stock.......................................... -- (461) (461)
------- ------- -------
Total stockholders' equity (deficiency)................. 395 (630) (3,117)
------- ------- -------
Total liabilities and stockholders' equity
(deficiency).................................. $ 662 $ 1,033 $ 8,752
======= ======= =======
</TABLE>
See notes to financial statements.
F-3
<PAGE> 72
BOLT, INC.
STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
PERIOD FROM
AUGUST 15, 1996 YEAR ENDED NINE MONTHS ENDED
(DATE OF INCEPTION) DECEMBER 31, SEPTEMBER 30,
THROUGH --------------------- -----------------------
DECEMBER 31, 1996 1997 1998 1998 1999
------------------- --------- --------- ----------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Bolt revenues................. $ -- $ 32 $ 404 $ 184 $ 1,885
Revenues related to the Girls
On and custom publishing
divisions................... 19 446 2,281 1,606 38
--------- --------- --------- --------- ---------
Total revenues...... 19 478 2,685 1,790 1,923
--------- --------- --------- --------- ---------
Costs and expenses:
Production and technology... 15 810 1,138 813 2,389
E-commerce.................. -- -- -- -- 235
Sales and marketing......... 1 287 630 393 2,782
General and
administrative........... 51 549 1,327 967 999
Depreciation and
amortization............. 4 25 75 50 211
Stock-based compensation.... -- -- -- -- 1,256
--------- --------- --------- --------- ---------
Total costs and
expenses.......... 71 1,671 3,170 2,223 7,872
--------- --------- --------- --------- ---------
Loss from operations.......... (52) (1,193) (485) (433) (5,949)
Other income (expense):
Interest income (expense),
net...................... -- 42 (53) (30) 115
Gain on sale of Girls On.... -- -- -- -- 1,436
--------- --------- --------- --------- ---------
Net loss...................... $ (52) $ (1,151) $ (538) $ (463) $ (4,398)
========= ========= ========= ========= =========
Basic loss per share.......... $ (.01) $ (.26) $ (.12) $ (.11) $ (1.46)
========= ========= ========= ========= =========
Weighted average number of
shares of common stock
outstanding................. 4,400,000 4,400,000 4,368,850 4,400,000 3,009,720
========= ========= ========= ========= =========
</TABLE>
See notes to financial statements.
F-4
<PAGE> 73
BOLT, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIENCY)
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
CONVERTIBLE PREFERRED STOCK
-----------------------------------
COMMON STOCK SERIES A-1 SERIES A-2 ADDITIONAL
------------------ ---------------- ---------------- PAID IN
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL
--------- ------ ------- ------ ------- ------ ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at August 15, 1996 (date of inception)....... -- $-- -- $-- -- $-- $ --
Issuance of common stock to founders................. 4,400,000 4 -- -- -- -- 94
Net loss............................................. -- -- -- -- -- -- --
--------- -- ------- -- ------- -- -------
Balance at December 31, 1996......................... 4,400,000 4 -- -- -- -- 94
Issuance of Series A-1 convertible preferred stock... -- -- 600,000 1 -- -- 1,499
Net loss............................................. -- -- -- -- -- -- --
--------- -- ------- -- ------- -- -------
Balance at December 31, 1997......................... 4,400,000 4 600,000 1 -- -- 1,593
Purchase of founders common stock.................... -- -- -- -- -- -- --
Sale of custom publishing division to related
party............................................... -- -- -- -- -- -- 394
Net loss............................................. -- -- -- -- -- -- --
--------- -- ------- -- ------- -- -------
Balance at December 31, 1998......................... 4,400,000 4 600,000 1 -- -- 1,987
Issuance of Series A-2 convertible preferred stock in
exchange for convertible note....................... -- -- -- -- 125,000 -- 450
Sale of Girls On division............................ -- -- -- -- -- -- 55
Issuance of common stock............................. 38,544 -- -- -- -- -- 24
Proceeds on payment of note receivable............... -- -- -- -- -- -- --
Issuance of warrant to purchase common stock to
placement agent..................................... -- -- -- -- -- -- (868)
Deferred compensation on stock options............... -- -- -- -- -- -- 6,133
Amortization of deferred compensation................ -- -- -- -- -- -- --
Issuance of warrant to purchase
Series B-3 convertible preferred stock in
connection with credit facility..................... -- -- -- -- -- -- --
Deferred financing costs on warrants................. -- -- -- -- -- -- --
Net loss............................................. -- -- -- -- -- -- --
--------- -- ------- -- ------- -- -------
Balance at September 30, 1999........................ 4,438,544 $4 600,000 $1 125,000 $-- $ 7,781
========= == ======= == ======= == =======
<CAPTION>
NOTES
RECEIVABLE
TREASURY STOCK DEFERRED FROM
------------------ DEFERRED FINANCING RELATED
SHARES AMOUNT COMPENSATION WARRANTS COSTS PARTY
--------- ------ ------------ -------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Balance at August 15, 1996 (date of inception)....... -- $ -- $ -- $ -- $ -- $ --
Issuance of common stock to founders................. -- -- -- -- -- --
Net loss............................................. -- -- -- -- -- --
--------- ----- ------- ------ ----- -----
Balance at December 31, 1996......................... -- -- -- -- --
Issuance of Series A-1 convertible preferred stock... -- -- -- -- -- --
Net loss............................................. -- -- -- -- -- --
--------- ----- ------- ------ ----- -----
Balance at December 31, 1997......................... -- -- -- -- -- --
Purchase of founders common stock.................... 1,421,200 (461) -- -- -- --
Sale of custom publishing division to related
party............................................... -- -- -- -- -- (420)
Net loss............................................. -- -- -- -- -- --
--------- ----- ------- ------ ----- -----
Balance at December 31, 1998......................... 1,421,200 (461) -- -- -- (420)
Issuance of Series A-2 convertible preferred stock in
exchange for convertible note....................... -- -- -- -- -- --
Sale of Girls On division............................ -- -- -- -- -- --
Issuance of common stock............................. -- -- -- -- -- --
Proceeds on payment of note receivable............... -- -- -- -- -- 105
Issuance of warrant to purchase common stock to
placement agent..................................... -- -- -- 868 -- --
Deferred compensation on stock options............... -- -- (5,553) -- -- --
Amortization of deferred compensation................ -- -- 677 -- -- --
Issuance of warrant to purchase
Series B-3 convertible preferred stock in
connection with credit facility..................... -- -- -- 653 -- --
Deferred financing costs on warrants................. -- -- -- -- (633) --
Net loss............................................. -- -- -- -- -- --
--------- ----- ------- ------ ----- -----
Balance at September 30, 1999........................ 1,421,200 $(461) $(4,876) $1,521 $(633) $(315)
========= ===== ======= ====== ===== =====
<CAPTION>
ACCUMULATED
DEFICIT TOTAL
----------- -------
<S> <C> <C>
Balance at August 15, 1996 (date of inception)....... $ -- $ --
Issuance of common stock to founders................. -- 98
Net loss............................................. (52) (52)
------- -------
Balance at December 31, 1996......................... (52) 46
Issuance of Series A-1 convertible preferred stock... -- 1,500
Net loss............................................. (1,151) (1,151)
------- -------
Balance at December 31, 1997......................... (1,203) 395
Purchase of founders common stock.................... -- (461)
Sale of custom publishing division to related
party............................................... -- (26)
Net loss............................................. (538) (538)
------- -------
Balance at December 31, 1998......................... (1,741) (630)
Issuance of Series A-2 convertible preferred stock in
exchange for convertible note....................... -- 450
Sale of Girls On division............................ -- 55
Issuance of common stock............................. -- 24
Proceeds on payment of note receivable............... -- 105
Issuance of warrant to purchase common stock to
placement agent..................................... -- --
Deferred compensation on stock options............... -- 580
Amortization of deferred compensation................ -- 677
Issuance of warrant to purchase
Series B-3 convertible preferred stock in
connection with credit facility..................... -- 653
Deferred financing costs on warrants................. -- (633)
Net loss............................................. (4,398) (4,398)
------- -------
Balance at September 30, 1999........................ $(6,139) $(3,117)
======= =======
</TABLE>
See notes to financial statements.
F-5
<PAGE> 74
BOLT, INC.
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
PERIOD
AUGUST 15, 1996 YEAR ENDED NINE MONTHS ENDED
(DATE OF INCEPTION) DECEMBER 31, SEPTEMBER 30,
THROUGH --------------- ---------------------
DECEMBER 31, 1996 1997 1998 1998 1999
------------------- ------- ----- ----------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss............................................... $(52) $(1,151) $(538) $(463) $(4,398)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization........................ 4 25 75 50 231
Deferred stock based compensation.................... -- -- -- -- 1,256
Gain on sale of Girls On............................. -- -- -- -- (1,436)
Changes in operating assets and liabilities:
Increase in accounts receivable.................... (13) (136) (188) (237) (724)
(Increase) decrease in prepaid expenses and other
current assets................................... -- (61) 61 17 (356)
(Decrease) increase in other assets................ (7) (17) (23) 1 (195)
Increase in accounts payable....................... 19 153 74 129 1,585
Increase in accrued expenses....................... 22 73 138 85 130
Increase (decrease) in deferred revenues........... 8 (8) 53 32 (2)
---- ------- ----- ----- -------
Net cash used in operating activities.............. (19) (1,122) (348) (386) (3,909)
---- ------- ----- ----- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment................... (43) (229) (65) (55) (2,214)
Proceeds from the sale of Girls On................... -- -- -- -- 386
---- ------- ----- ----- -------
Net cash used in investing activities.............. (43) (229) (65) (55) (1,828)
---- ------- ----- ----- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from the issuance of convertible preferred
stock, net......................................... -- 1,500 -- -- 8,019
Proceeds from equipment lease financing.............. -- -- -- -- 651
Proceeds from credit facility........................ -- -- -- -- 500
Proceeds from the payment of note receivable......... -- -- -- -- 105
Proceeds from the issuance of common stock........... 72 25 -- -- 24
Proceeds from convertible note....................... -- -- 500 500 --
Payments of capital lease obligations................ -- -- (20) -- (45)
Payment of convertible note payable.................. -- -- -- -- (50)
Payments made for treasury stock..................... -- -- (57) -- (24)
---- ------- ----- ----- -------
Net cash provided by financing activities.......... 72 1,525 423 500 9,180
---- ------- ----- ----- -------
Increase in cash and cash equivalents.................. 10 174 10 59 3,443
Cash and cash equivalents, beginning of period......... -- 10 184 184 194
---- ------- ----- ----- -------
Cash and cash equivalents, end of period............... $ 10 $ 184 $ 194 $ 243 $ 3,637
==== ======= ===== ===== =======
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for income taxes........................... $ -- $ 1 $ 1 $ -- $ 6
Cash paid for interest............................... $ -- $ -- $ 13 $ -- $ 57
SUPPLEMENTAL DISCLOSURE OF NON-CASH FLOW TRANSACTIONS:
Fixed assets acquired under capital leases........... $ -- $ -- $ 247 $ -- $ 651
Note issued to founders for treasury stock........... $ -- $ -- $ 404 $ -- $ --
Note received for net assets of custom publishing
division from related party........................ $ -- $ -- $ 420 $ -- $ --
Transfer of Girls On liabilities, net................ $ -- $ -- $ -- $ -- $ 55
Conversion of promissory note........................ $ -- $ -- $ -- $ -- $ 450
Warrant issued for Series B-3 convertible preferred
stock in connection with credit facility........... $ -- $ -- $ -- $ -- $ 653
Warrant issued for common stock to placement agent... $ -- $ -- $ -- $ -- $ 868
</TABLE>
See notes to financial statements.
F-6
<PAGE> 75
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE PERIOD AUGUST 15, 1996 (DATE OF INCEPTION) TO
DECEMBER 31, 1996, FOR THE YEARS ENDED DECEMBER 31, 1997
AND 1998 AND FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999
1. THE COMPANY
ORGANIZATION--Bolt, Inc., was incorporated in the State of Delaware on
August 15, 1996 under the name Concrete Media, Inc. ("Concrete"). Concrete
amended and restated its certificate of incorporation on January 10, 1997. As
part of a reorganization, the Company sold its custom publishing business
division, effective December 30, 1998, and sold its Girls On Web content site
("Girls On") effective January 29, 1999. Effective February 1999, Bolt Media,
Inc. was merged into Concrete and Concrete changed its name to Bolt Media, Inc.
(the "Company"). On November 17, 1999, Bolt Media, Inc. changed its name to
Bolt, Inc. ("Bolt").
Prior to December 30, 1998, the Company operated through three divisions
and/or subsidiaries:
Bolt, a leading provider of member generated, teen focused content on
the Internet through its portal site, Bolt. com;
Custom Publishing, which provided Web site development and related
services to third parties; and
Girls On, a leading provider of entertainment-related content, written
by and focused toward young women.
2. SIGNIFICANT ACCOUNTING POLICIES AND PROCEDURES
BASIS OF PRESENTATION--The financial statements include the accounts of
Bolt, Inc., and its wholly-owned subsidiary from the date of inception through
the period December 31, 1998. The subsidiary was merged with and into the
Company on February 16, 1999 (see note 1). All significant intercompany accounts
and transactions have been eliminated in consolidation through December 31,
1998.
USE OF ESTIMATES--The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that effect the reported amount of assets and
liabilities and disclosures of contingent assets and liabilities at the date of
the financial statements and reported amounts of revenues and expenses during
the reporting period. Actual results could differ from these estimates.
CASH AND CASH EQUIVALENTS--The Company considers all highly liquid
investments purchased with original maturities of three months or less to be
cash equivalents.
PROPERTY AND EQUIPMENT AND RELATED DEPRECIATION AND AMORTIZATION--Property
and equipment are stated at cost, and in the case of equipment under capital
leases, the present value of the future minimum lease payments, less accumulated
depreciation and amortization. Depreciation and amortization is calculated using
the straight-line method over the estimated useful lives of the depreciable
assets, which range from three to seven years, or the lease term. Improvements
are capitalized, while repair and maintenance costs are charged to operations as
incurred. Depreciation and amortization expense was $4,310, $24,844, $75,000,
$50,000, and $211,000 for the period August 15, 1996 to December 31, 1996, for
years ended December 31, 1997 and 1998, and for the nine month periods ended
September 30, 1998 (unaudited) and 1999, respectively.
INVESTMENTS--Investments in less than 20% of the share capital of other
companies are presented at cost. In the event that management identifies a
decline of an other than temporary nature in the estimated fair value of an
investment to an amount below cost, such investment will be written down to fair
market value.
IMPAIRMENT OF ASSETS--The Company's long-lived assets are reviewed for
impairment whenever events or changes in circumstances indicate that the net
carrying amount may not be recoverable. When such events occur, the Company
measures impairment by comparing the carrying value of the long-lived asset to
the
F-7
<PAGE> 76
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
estimated undiscounted future cash flows expected to result from use of the
assets and their eventual disposition. If the sum of the expected undiscounted
future cash flows were less than the carrying amount of the assets, the Company
would recognize an impairment loss. The impairment loss, if determined to be
necessary, would be measured as the amount by which the carrying amount of the
asset exceeds the fair value of the asset. The Company determined that, as of
December 31, 1997, 1998 and September 30, 1999, there had been no impairment in
the carrying value of its long-lived assets.
COSTS OF COMPUTER SOFTWARE DEVELOPED OR OBTAINED FOR INTERNAL USE--As of
January 1, 1999, costs of computer software developed or obtained for internal
use are capitalized while in the application development stage and are expensed
while in the preliminary stage and post-implementation stage. The Company
amortizes these capitalized costs over the life of the systems, which is
estimated to be four years. The Company capitalized approximately $1.4 million
of internal development and software purchase costs relating to its Web site
incurred during the application development stage. Prior to January 1, 1999 the
Company expensed all internal costs related to software development.
DEFERRED REVENUES--Deferred revenues represents amounts billed in excess of
revenues recognized. Included in accounts receivable are amounts due (under
contract) relating to deferred revenues.
REVENUE RECOGNITION--Income is derived from a variety of sources, including
advertising, custom publishing and syndication and E-commerce. Revenues from
advertising are derived from the sale of advertising space on the Company's
different online services, typically include the guarantee of a minimum number
of impressions (times that an advertisement is viewed by members of the
Company's online service) and are recognized ratably as impressions are
delivered over the period of the advertising contract. Revenues from custom
publishing projects and production services from customers that advertise on our
site are recognized as earned, over the term of each project. Substantially all
projects were completed by December 31, 1997, 1998 and September 30, 1999.
E-commerce revenues are recognized when the products are shipped. We also
generate e-commerce revenues by charging transaction fees to retailers and
e-commerce companies that wish to use our site to promote their products and
services as well as to purchase premiere positioning on our site. Generally
these companies pay us either a flat fee, a fee based on retail sales to our
members or a combination of the two. We recognize transaction fee revenues when
earned from our third party partners or, in cases where we receive a flat fee,
based on the term of the contract.
INCOME TAXES--The Company accounts for income taxes under the provisions of
Statement of Financial Accounting Standards ("SFAS") No. 109, "Accounting for
Income Taxes," pursuant to which deferred income tax assets and liabilities are
determined based on the difference between the financial statement and tax bases
of assets and liabilities, using enacted tax rates currently in effect. State
and local taxes are based on factors other than income.
NET LOSS PER COMMON SHARE--Basic loss per common share was computed by
dividing net loss by the weighted average number of shares of common stock
outstanding. Diluted loss per share has not been presented since the impact for
options and warrants, and conversion of preferred shares would have been anti-
dilutive (see notes 11 & 13).
RECENT ACCOUNTING PRONOUNCEMENTS--In June 1997, the Financial Accounting
Standards Board ("FASB") issued SFAS No. 130, "Reporting Comprehensive Income."
SFAS No. 130 establishes new rules for the reporting and display of
comprehensive income and its components. The Company has no elements of
comprehensive income and the net loss reported in the statements of operations
is equivalent to the total comprehensive loss.
Effective January 1, 1998, the Company adopted SFAS No. 131, "Disclosure
about Segments of an Enterprise and Related Information." SFAS No. 131
establishes standards for the way business enterprises
F-8
<PAGE> 77
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
report information about operating segments, as well as enterprise-wide
disclosures about products and services, geographic areas and major customers.
The Company operates in one segment in the United States.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which establishes accounting and reporting
standards for derivative instruments and hedging activities. Generally, it
requires than an entity recognize all derivatives as either an asset or
liability and measure those instruments at fair value, as well as identify the
conditions for which a derivative may be specifically designed as a hedge. SFAS
No. 133 is effective for fiscal years beginning after June 15, 2000. The Company
does not currently engage or plan to engage in any derivative or hedging
activities.
In March 1998, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use." This statement requires
companies to capitalize qualifying computer software costs which are incurred
during the application development stage and amortize them over the software's
estimated useful life. SOP 98-1 is effective for fiscal years beginning after
December 15, 1998. The Company adopted the requirements of SOP 98-1 as of
January 1, 1999.
FAIR VALUE OF FINANCIAL INSTRUMENTS--The Company's financial instruments,
including cash and cash equivalents, accounts receivable, accounts payable, and
notes payable are carried at cost, which approximates their fair value because
of the short-term maturity of these instruments and the relatively stable
interest rate environment.
UNAUDITED FINANCIAL INFORMATION--The interim financial information for the
nine months ended September 30, 1998, and the related notes, are unaudited. The
unaudited interim financial information has been prepared on the same basis as
the annual financial statements and, in the opinion of management, reflects all
adjustments, consisting only of normal recurring adjustments, necessary to
present fairly the results of operations and cash flows for the nine months
period ended September 30, 1998.
3. SALE OF CERTAIN PORTIONS OF THE BUSINESS
CUSTOM PUBLISHING--On December 30, 1998, the Company sold its custom
publishing division, primarily comprised of the name "Concrete Media," the
division's customer list, certain computer equipment and all related liabilities
of the division to a related party, Concrete Media Construction, LLC (the
"LLC"). The selling price was $420,000, payable in the form of two promissory
notes, one for $105,000 and one for $315,000. At December 31, 1998, the notes
receivable were reflected as a reduction of stockholders' equity. The first note
was paid on January 29, 1999 and the other note is due on December 30, 2001. The
amount in excess of the carrying value of net assets transferred to the LLC was
recorded as additional paid-in capital.
The Company continues to provide customers with content production services
related to advertising or product presentation on the Company's Web site.
GIRLS ON--On January 29, 1999, the Company sold all assets of the business
of Girls On (primarily the name "Girls On," related trademarks and the software
code necessary to operate the site) to a subsidiary of the LLC, Girls On, Inc.
in exchange for Girls On, Inc.'s assumption of all current and future
liabilities of Girls On.
The Girls On sale agreement included a provision entitling the Company to
additional contingent consideration based on a formula set forth in the
agreement. On August 5, 1999, the LLC sold Girls On to Oxygen Media, LLC. In
connection with this sale, pursuant to the contingent consideration provision of
the agreement, the Company received $386,000 in cash as well as equity
securities in Oxygen Media with a fair value of $1,050,000. The gain of
$1,436,000 was recognized in the third quarter of 1999.
F-9
<PAGE> 78
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
4. CONCENTRATION OF CREDIT RISK
Financial instruments, which subject the Company to concentrations of
credit risk, consist primarily of cash and cash equivalents, and trade accounts
receivable. The Company maintains cash and cash equivalents with various
domestic financial institutions. The Company performs periodic evaluations of
the relative credit standing of these institutions. From time to time, the
Company's cash balances with any one financial institution may exceed Federal
Deposit Insurance corporation insurance limits.
The Company's customers are concentrated in the United States. The Company
performs ongoing credit evaluations, generally does not require collateral and
establishes an allowance for doubtful accounts based upon factors surrounding
the credit risk of customers, historical trends and other information; to date
such losses have been within management's expectations.
5. PROPERTY AND EQUIPMENT
At December 31, 1997 and 1998 and September 30, 1999, property and
equipment consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
------------ SEPTEMBER 30,
DESCRIPTION 1997 1998 1999
- ------------------------------------------------------ ---- ---- -------------
<S> <C> <C> <C>
Computer equipment, including assets under capital
leases.............................................. $222 $365 $2,316
Furniture and fixtures................................ 49 193 363
---- ---- ------
271 558 2,679
Less accumulated depreciation and amortization........ 29 104 302
---- ---- ------
Property, plant and equipment, net.................... $242 $454 $2,377
==== ==== ======
</TABLE>
6. INCOME TAXES
No provision for income taxes has been made because the Company has
sustained cumulative losses since the commencement of operations. At September
30, 1999, the Company had net operating loss carryforwards ("NOLs") of
approximately $6,209,000, which will be available to reduce future taxable
income. The NOLs are expected to expire in the following years (in thousands):
<TABLE>
<CAPTION>
YEAR ENDING DECEMBER 31,
- ------------------------------------------------------------
<S> <C>
2012........................................................ $1,166
2013........................................................ 554
2014........................................................ 4,489
------
$6,209
======
</TABLE>
In accordance with SFAS No. 109, the Company has computed the components of
deferred income taxes as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1997 1998 1999
------------ ------------ -------------
<S> <C> <C> <C>
Deferred tax assets................... $ 670 $ 771 $ 2,918
Less valuation allowance.............. (670) (771) (2,918)
----- ----- -------
Net deferred taxes.................... $ 0 $ 0 $ 0
===== ===== =======
</TABLE>
F-10
<PAGE> 79
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
The Company's NOLs primarily generated the deferred tax assets. At December 31,
1997 and 1998 and September 30, 1999, a valuation allowance was provided as the
realization of the deferred tax benefits is not likely.
7. CONVERTIBLE PROMISSORY NOTE
On January 22, 1998, the Company entered into a convertible promissory note
with the Series A preferred stockholder whereby the Company received a $500,000
loan, due July 22, 1998, or thereafter on demand. The note bears interest at 10%
per annum. On February 17, 1999, a portion of the note was paid, along with
accrued interest. The balance of this note was then converted into 125,000
shares of Series A-2 preferred stock (see note 11).
8. SHORT TERM DEBT
In August 1999, the Company entered into a short-term revolving line of
credit of up to $500,000 with a financing company, maturing on September 1,
2000. Borrowings under this line are made available to the Company against
certain eligible receivables as defined in the agreement and bear interest at
prime (8 1/4 percent as of September 30, 1999) plus one percent. As of September
30, 1999, $500,000 was outstanding under the line. The loan is collateralized by
the Company's cash and cash equivalents and accounts receivable.
9. COMMITMENTS
OFFICE LEASES--In August 1998, the Company entered into a sublease
agreement to rent office space through February 27, 2007.
Rent expense was $8,675, $52,523, $111,859, $89,699 and $148,508 for the
period August 15, 1996 to December 31, 1996, for the years ended December 31,
1997 and 1998, and for the nine month period ended September 30, 1998
(unaudited) and 1999, respectively.
Future minimum payments under the operating lease are as follows (in
thousands):
<TABLE>
<S> <C>
Three months ending December 31, 1999....................... $ 66
Year ending December 31, 2000............................... 265
Year ending December 31, 2001............................... 265
Year ending December 31, 2002............................... 265
Year ending December 31, 2003............................... 265
Year ending December 31, 2004............................... 265
Thereafter.................................................. 574
------
Total minimum lease payments...................... $1,965
======
</TABLE>
EQUIPMENT LEASES--In August 1999, the Company entered into an equipment
lease financing agreement with a financing company. The agreement provides for
borrowings not to exceed $1,000,000 which are secured by the Company's equipment
and fixtures, and expires at the end of each lease term. The Company has an
option to increase this lease line by an additional $500,000 by providing
written notice. As of September 30, 1999, $651,023 was outstanding under the
line. In addition, the Company issued the financing company a warrant to
purchase preferred stock (see note 10).
F-11
<PAGE> 80
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
The Company is a lessee under several capital lease agreements with third
parties for certain equipment. Future minimum lease payments under noncancelable
capital leases, together with the present value of the net minimum payments as
of September 30, 1999, are as follows (in thousands):
<TABLE>
<S> <C>
Three months ending December 31, 1999....................... $ 78
Year ending December 31, 2000............................... 311
Year ending December 31, 2001............................... 282
Year ending December 31, 2002............................... 205
Year ending December 31, 2003............................... 23
Year ending December 31, 2004............................... 23
Thereafter.................................................. 49
----
Total minimum lease payments...................... $971
----
Less: amounts representing interest......................... 138
----
Present value of minimum capital lease payments............. 833
Less: current portion....................................... 255
----
Long-term capitalized lease obligations..................... $578
====
</TABLE>
The assets and liabilities under capital leases are recorded at the present
value of the minimum lease payments using effective interest rates ranging from
8 percent to 21 percent per annum.
10. REDEEMABLE CONVERTIBLE PREFERRED STOCK
In February 1999, the Company sold 1,317,205 shares of Series B-1 and B-2
Convertible Preferred Stock (the "Series B Preferred Stock") to a group of
investors. The net proceeds to the Company were approximately $8,019,000.
Currently each share of Series B Preferred Stock is convertible, at any time, at
the option of the holder, into four shares of common stock.
The Company will be required to redeem all outstanding shares of Series B
Preferred Stock on February 23, 2004. The Series B-1 Preferred Stock will be
redeemed for $6.20 per share plus all declared and unpaid dividends, if any. The
Series B-2 Preferred Stock will be redeemed for $7.44 per share plus all
declared and unpaid dividends, if any. The carrying value of the Series B
Preferred Stock is its redemption value, as no dividends have been declared or
paid on these shares.
The Series B Preferred stockholders have senior preference and priority as
to the dividends of the Company. If declared, dividends on the Series B shares
shall accrue at 8% of the $6.20 stated value of the Series B-1 Preferred Stock
and at 8% of the $7.44 stated value of the Series B-2 Preferred Stock. Series B
Preferred Stock dividends are not cumulative.
Series B and Series A Preferred stockholders are entitled to voting rights
equal to the number of shares of Common Stock into which the preferred stock is
convertible. These holders have additional voting rights regarding matters that
affect their series of preferred stock and certain other matters.
11. STOCKHOLDERS' EQUITY (DEFICIENCY)
PREFERRED STOCK--In January 1997, the Company sold 600,000 shares of Series
A-1 Convertible Preferred Stock to an investor in a private placement. The
Company received net proceeds of $1,500,000. Currently, each share of Series A-1
Preferred Stock is convertible, at the option of the holder, into four shares of
Common Stock.
In February 1999, the holder of the convertible promissory note (see note
7) exercised its option to convert the convertible promissory note after the
Company made payments of $50,000 of principal and
F-12
<PAGE> 81
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
$52,479 of interest. The remaining $450,000 under this note was converted into
125,000 shares of Series A-2 Preferred Stock. Each share of Series A-2 Preferred
Stock is convertible into four shares of Common Stock.
The Series A-1 and Series A-2 (the "Series A Preferred Stock") Preferred
Stockholders have senior preference and priority to the Common Stock to the
dividends of the Company. Dividends payable on the Series A Preferred Stock, if
declared, will be payable at a rate per annum determined by the Company's Board
of Directors. Series A Preferred Stock Dividends are not cumulative.
After dividends are paid on the Company's Series B Preferred Stock and
Series A Preferred Stock, holders of such shares shall participate with the
holders of the Company's Common Stock in the issuance of any further dividends
ratably in proportion to the number of shares of Common Stock that would be held
by each such holder if all outstanding shares of the Company's Series B
Preferred Stock and Series A Preferred Stock were converted into common stock.
TREASURY STOCK--In July 1998, a founder left the Company. Under the terms
of a Shareholders' Agreement, on December 22, 1998, the Company repurchased
710,600 shares for approximately $.0125 per share. The balance of the founder's
shares, 710,600 shares, were repurchased at a price of $.625 per share.
The total purchase price of $453,750 was paid as follows: $50,000 upon
closing, and the balance in the form of a promissory note. The note requires
twenty-two monthly payments of $2,750 each, and a payment of $50,000 due
December 22, 1999, and the balance of $293,250 with interest, is due November
2000. In addition, the Company incurred $7,203 of expenses related to this
transaction.
WARRANTS--The Company has issued a warrant to purchase 40,000 shares of
Common Stock at $.025 per share to a placement agent in connection with the
Series B Preferred Stock financing. This warrant may be exercised in the event
of any of the following: (a) a sale of assets of the Company for which
stockholder approval is required, (b) a sale of shares of Common Stock of the
Company pursuant to an effective registration Statement, (c) the purchase of
more than 66 2/3% of the Company's Common Stock by any person or entity and (d)
a merger or consolidation of the Company which existing shareholders do not own
a majority of the shares of the surviving entity. The Company has recorded this
warrant at $868,000 using the Black Scholes option pricing method and has
reduced additional paid in capital for a like amount.
In connection with an equipment lease line of credit, the Company has
granted a warrant to purchase Series B-3 Preferred Stock. This warrant expires
on August 31, 2006. Initially the warrant was for 8,065 Shares of Series B-3
Preferred Stock and was valued at $652,484 using the Black Scholes option
pricing model. However, this warrant is adjustable and the final number of
shares issuable and the exercise price per share will be based on a future
financing event. An offset in the stockholders' equity section has been recorded
as deferred financing costs and will be amortized over the three-year life of
the financing agreement (see note 16 for the final terms of this warrant).
12. RETIREMENT PLAN
The Company has a 401(k) Retirement/Savings Plan (the "401(k) Plan") for
all eligible employees. Employees are eligible to participate on the first
semi-annual enrollment date after their date of hire. The Company is not
required to, but may make discretionary contributions to the 401(k) Plan. The
Company did not make any voluntary contributions to the 401(k) Plan for the
years ended December 31, 1997, and 1998 or for the nine month period ended
September 30, 1999.
13. STOCK OPTION PLANS
The Company has established the 1997 Stock Option Plan (the "1997 Plan")
and the 1999 Employee, Director and Consultant Stock Option Plan (the "1999
Plan") to reward employees, consultants and directors for service to the Company
and to provide incentives for future service and enhancement of shareholder
value.
F-13
<PAGE> 82
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
As of September 30, 1999, the 1997 Plan and the 1999 Plan provided for awards of
up to 424,544 and 2,537,948 shares of common stock of the Company, respectively.
Options granted under these plans typically vest over a four-year period with
25% vesting in the first year of grant and the remainder vesting equally each
month over a thirty-six month period. A total of 2,659,000 options had been
granted under these plans as of September 30, 1999.
The Company has elected to follow Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees" ("APB 25") and related
interpretations in accounting for its employee stock options.
Transactions involving the incentive stock options granted to employees are
summarized as follows:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
NUMBER EXERCISE EXERCISE
OF OPTIONS PRICE PRICE
---------- -------- --------
<S> <C> <C> <C>
Granted.......................................... 570,000 $ .625 $ .625
Exercised........................................ -- $ .625 $ .625
Canceled......................................... -- $ .625 $ .625
---------
Outstanding, December 31, 1997................... 570,000
Granted.......................................... 160,000 $ .625 $ .625
Exercised........................................ -- $ .625 $ .625
Canceled......................................... (102,000) $ .625 $ .625
---------
Outstanding, December 31, 1998................... 628,000
Granted.......................................... 2,273,000 $ .58 $ .58
Exercised........................................ (38,544) $ .58 $ .58
Canceled......................................... (203,456) $ .58 $ .58
---------
Outstanding, September 30, 1999.................. 2,659,000
=========
</TABLE>
There were 37,042, 59,375 and 1,004,433 options exercisable as of December
31, 1997, December 31, 1998 and September 30, 1999, respectively.
These plans also provide for stock appreciation rights ("SAR's"). As of
September 30, 1999, no SAR's had been granted.
SFAS No. 123, Accounting for Stock-Based Compensation, provides for a fair
value based method of accounting for employee options and options granted to
non-employees and measures compensation expense using an option valuation model
that takes into account, as of the grant date, the exercise price and expected
life of the option, the current price of the underlying stock and its expected
volatility, expected dividends on the stock, and the risk-free interest rate for
the expected term of the options. For each of the years ended December 31, 1997
and 1998 and for the nine months ended September 30, 1999, no options were
granted to non-employees.
F-14
<PAGE> 83
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
In connection with the issuance of certain options at prices below the fair
market value, the Company had recorded deferred compensation expense of $4.9
million as of September 30, 1999, representing the difference between the
exercise price and the deemed fair market value of the Company's common stock at
such date. Such amount is included as a reduction of stockholders' equity and is
being amortized by charges to operations over the vesting period. Amortization
of deferred compensation amounted to $677,250 for the nine months ended
September 30, 1999. On February 19, 1999, the Company granted 710,600 stock
options to two of the Company's founders at an exercise price of $.58. Such
options vested immediately. The Company has recorded a charge of $579,139,
representing the difference between the exercise price and the deemed fair
market value of the Company's common stock at such date.
Pro forma disclosure as if the Company adopted the cost recognition
requirement under SFAS 123 is presented below (in thousands).
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED YEAR ENDED ENDED
DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1997 1998 1999
----------------- ----------------- ------------------
<S> <C> <C> <C>
Net loss applicable to common shares--as
reported.............................. $1,151 $538 $4,398
Net loss applicable to common
shares--pro forma..................... $1,163 $552 $5,107
Loss per common share--as reported...... $.26 $.12 $1.46
Loss per common share--pro forma........ $.26 $.13 $1.70
</TABLE>
The Company used the Black-Scholes option pricing model to estimate fair
value utilizing the following assumtions for the respective years (all numbers
shown are weighted averages):
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED YEAR ENDED ENDED
DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1997 1998 1999
----------------- ----------------- ------------------
<S> <C> <C> <C>
Risk-free interest rate................. 4.62% 4.62% 6.00%
Expected life of options................ 3.25 years 3.25 years 3.25 years
Expected annual volatility.............. .001% .001% 50%
Expected dividend yield................. none none none
</TABLE>
14. MAJOR CUSTOMERS
Revenues from one customer represented 25% of total revenues for the nine
months ended September 30, 1999. Revenues from one customer represented 52% of
total revenues in 1998. Revenues from two customers represented 15% and 10% of
total revenues in 1997 and 81% and 19% for the period August 15, 1996 (date of
inception) through December 31, 1996.
15. RELATED PARTY TRANSACTIONS
On December 30, 1998, the Company entered into an agreement whereby the
Company and the LLC have been providing and will continue to provide certain
services to each other as defined in the agreement. These amounts are determined
based on the actual costs incurred related to such services provided.
F-15
<PAGE> 84
BOLT, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
16. SUBSEQUENT EVENTS
STOCK SPLIT--On November 17, 1999, the Company effected a four-for-one
stock split of each outstanding share of common stock. The four-for-one stock
split described above has been applied retrospectively for all periods
presented.
SERIES C FINANCING--On November 17, 1999, November 23, 1999 and December 6,
1999, the Company sold an aggregate of 3,787,801 shares of Series C Convertible
Preferred Stock ("Series C Preferred Stock") to a group of investors for $10.25
per share. The Company received gross proceeds from this sale of approximately
$38.8 million. The Company will be required to redeem all of the shares of
Series C Preferred Stock and Series B Preferred Stock on November 17, 2004. The
Series C Preferred Stock is redeemable at an amount equal to $10.25 per share
(subject to appropriate adjustment for any recapitalization events), plus an
amount equal to all declared and unpaid dividends, if any. Currently, each share
of Series C Preferred Stock is convertible, at any time, at the option of the
holder, into one share of common stock.
INCREASE IN AUTHORIZED STOCK--In connection with the Series C financing,
the Company amended and restated its certificate of incorporation to increase
the number of authorized shares of common stock and preferred stock to an
aggregate of 30,000,000 and 7,500,000, respectively.
ADJUSTMENT OF SERIES B-3 PREFERRED STOCK WARRANT--The terms of the warrant
issued by the Company in connection with the equipment lease line of credit (see
note 11) have been finalized. This warrant is now exercisable for up to 1,975
shares of Series B-3 Preferred Stock at an exercise price of $30.37 per share
and has a redemption value of $30.37 per share plus all declared and unpaid
dividends, if any. Each share of Series B-3 Preferred Stock is convertible into
four shares of the Company's Common Stock. Upon the completion of an initial
public offering of the Company's Common Stock, this warrant will automatically
convert into a warrant to purchase 7,900 shares of Common Stock at an exercise
price of $7.59 per share.
INCREASE IN SHARES UNDER STOCK PLAN--On November 17, 1999, the board of
directors and the stockholders of the Company approved an amendment to the 1999
Plan to increase the number of shares of Common Stock issuable thereunder to
3,077,948.
AGREEMENT WITH AMERICA ONLINE, INC.--In the fourth quarter of 1999, the
Company entered into an agreement with America Online, Inc. ("AOL"). The
agreement requires the Company to manage and monitor AOL's teen channel as well
as to develop a version of Bolt's primary web site that adheres to AOL teen
content policies. In return, the Company will receive a minimum number of
impressions during the term of the agreement based on branded content and
promotional placements that will appear on a variety of AOL properties. The
Company will pay AOL a cash amount over the course of 18 months and will provide
AOL with certain programming content. The Company will amortize the cost of this
agreement ratably as the impressions are delivered. The value of the services
the Company will provide to AOL will be recognized as barter revenues as the
Company's services are delivered to AOL.
AGREEMENT WITH FORD MOTOR COMPANY, INC.--In the fourth quarter of 1999, the
Company entered into an agreement with Ford Motor Company, Inc. ("Ford") under
which the Company will create, manage and provide certain content for a
co-branded area of the Company's site. The Company will also provide market
research information to Ford. The agreement is to run from January 1, 2000
through December 31, 2002, but may be terminated by either party on December 31,
2000 or 2001. Ford has agreed to pay the Company a cash amount over the course
of the contract life in exchange for the above services and for a scheduled
minimum number of guaranteed impressions as defined in the agreement. The
Company will recognize the revenue derived from this agreement ratably as such
impressions are delivered in accordance with the terms of the agreement.
F-16
<PAGE> 85
[DESCRIPTION OF GRAPHICS]
The graphic at the top of the page contains the following phrases: "Bolt
Profiles give members the chance to find out more about each other (Info about
Me, My Homepage, My Board Posts, and Diary), contact each other [Notes], and
respond to each other's personal polls [Tagbook]"; and "Stats: 40k notes sent
per day, 45k board posts per day, 75k poll responses per day and 600K email
accounts."
The remainder of the page contains a graphic which is a sample profile
application, "SupaFlyGuy", which includes "stats" regarding the age, sex,
birthday, zodiac sign, country of, and membership information for the member.
Click-throughs from various links from the profile are displayed around the
profile, such as samples of various applications for "info about me", "diary",
"tagbook", "my board posts", "send notes", and "my homepage". Directly below the
profile application page is a quote from a member, which states: "Bolt cuts out
the fluff. It's about the people who use it, what we want to see, our lives."
<PAGE> 86
BOLT.COM LOGO
<PAGE> 87
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an itemization of all estimated expenses,
all of which we will pay, in connection with the issuance and distribution of
the securities being registered:
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 12,144
Nasdaq National Market Listing Fee.......................... 90,000
NASD Filing Fee............................................. 5,100
Printing and Engraving Fees................................. 150,000
Legal Fees and Expenses..................................... 375,000
Accounting Fees and Expenses................................ 325,000
Blue Sky Fees and Expenses.................................. 10,000
Transfer Agent and Registrar Fees........................... 10,000
Miscellaneous............................................... 22,756
----------
Total............................................. $1,000,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our certificate of incorporation provides that we shall indemnify, to the
fullest extent authorized by the Delaware General Corporation Law, each person
who is involved in any litigation or other proceeding because such person is or
was a director or officer of Bolt, Inc. or is or was serving as an officer or
director of another entity at our request, against all expense, loss or
liability reasonably incurred or suffered in connection therewith. Our
certificate of incorporation provides that the right to indemnification includes
the right to be paid expenses incurred in defending any proceeding in advance of
its final disposition, provided, however, that such advance payment will only be
made upon delivery to us of an undertaking, by or on behalf of the director or
officer, to repay all amounts so advanced if it is ultimately determined that
such director is not entitled to indemnification. If we do not pay a proper
claim for indemnification in full within 60 days after we receive a written
claim for such indemnification, our bylaws authorize the claimant to bring an
action against us and prescribes what constitutes a defense to such action.
Section 145 of the Delaware General Corporation Law permits a corporation
to indemnify any director or officer of the corporation against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any action, suit or
proceeding brought by reason of the fact that such person is or was a director
or officer of the corporation, if such person acted in good faith and in a
manner that he reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if he or she had no reason to believe his or her conduct was
unlawful. In a derivative action, (i.e., one brought by or on behalf of the
corporation), indemnification may be provided only for expenses actually and
reasonably incurred by any director or officer in connection with the defense or
settlement of such an action or suit if such person acted in good faith and in a
manner that he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be provided
if such person shall have been adjudged to be liable to the corporation, unless
and only to the extent that the court in which the action or suit was brought
shall determine that the defendant is fairly and reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
II-1
<PAGE> 88
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law,
Article Tenth of our certificate of incorporation eliminates the liability of a
director to us or our stockholders for monetary damages for such a breach of
fiduciary duty as a director, except for liabilities arising:
- from any breach of the director's duty of loyalty to us or our
stockholders;
- from acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
- under Section 174 of the Delaware General Corporation Law; and
- from any transaction from which the director derived an improper
personal benefit.
We carry insurance policies insuring our directors and officers against
certain liabilities that they may incur in their capacity as directors and
officers.
Additionally, reference is made to the Underwriting Agreement filed as
Exhibit 1.1 hereto, which provides for indemnification by the underwriters of
Bolt, our directors and officers who sign the Registration Statement and persons
who control Bolt, under certain circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this Registration Statement, we
have sold the following securities that were not registered under the Securities
Act. The following information gives effect to a 4-for-1 split of our common
stock effected on November 17, 1999.
(a) ISSUANCES OF CAPITAL STOCK AND WARRANTS
The sale and issuance of the securities described in paragraphs (1) through
(8) below were deemed to be exempt from registration under the Securities Act by
virtue of Section 4(2) or Regulation D promulgated thereunder.
(1) On September 1, 1996, we issued a total of 4,400,000 shares of
common stock to two of our founders for $.00002 per share. We repurchased
1,421,200 of these shares in December 1998.
(2) On January 10, 1997, we sold and issued a total of 600,000 shares
of Series A-1 Convertible Preferred Stock for $2.50 per share to one
investor in a private placement. Each share of our Series A-1 preferred
stock is convertible into four shares of our common stock.
(3) On February 22, 1999, we issued 125,000 shares of Series A-2
Convertible Preferred Stock to one investor in exchange for $450,000 of
principal of a note payable by Bolt. Each share of our Series A-2 preferred
stock is convertible into four shares of our common stock.
(4) On February 23, 1999, we sold and issued a total of 1,048,387
shares of Series B-1 Convertible Preferred Stock for $6.20 per share to 18
investors in a private placement. Each share of our Series B-1 preferred
stock is convertible into four shares of our common stock.
(5) On March 1, 1999, we sold and issued a total of 268,818 shares of
Series B-2 Convertible Preferred Stock for $7.44 per share to two investors
in a private placement. Each share of our Series B-2 preferred stock is
convertible into four shares of our common stock.
(6) On November 17, 1999, November 23, 1999 and December 6, 1999, we
sold and issued a total of 3,787,801 shares of Series C Convertible
Preferred Stock for $10.25 per share to 32 investors in a private
placement. Each share of our Series C preferred stock is convertible into
one share of our common stock.
(7) On April 22, 1999, we issued a warrant to purchase 40,000 shares
of our common stock at an exercise price of $.025 per share to one
investor.
II-2
<PAGE> 89
(8) On August 23, 1999, we issued a warrant to purchase 1,975 shares
of our Series B-3 Convertible Preferred Stock at an exercise price of
$30.37 per share to one investor. Each share of our Series B-3 preferred
stock is convertible into four shares of our common stock.
(b) CERTAIN GRANTS AND EXERCISES OF STOCK OPTIONS
The sale and issuance of the securities described below were deemed to be
exempt from registration under the Securities Act in reliance on Rule 701
promulgated under Section 3(b) of the Securities Act, as transactions by an
issuer not involving a public offering or transactions pursuant to compensatory
benefit plans and contracts relating to compensation as provided under Rule 701.
Pursuant to our 1999 Employee, Director and Consultant Stock Option Plan
and our 1997 Stock Option Plan, we have issued options to purchase an aggregate
of 3,222,000 shares of common stock. Of these options:
- options to purchase 589,856 shares of common stock have been canceled or
lapsed without being exercised;
- options to purchase 38,544 shares of common stock have been exercised;
and
- options to purchase a total of 2,593,600 shares of common stock are
currently outstanding, at a weighted average exercise price of $.82 per
share.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
*1.1 Form of Underwriting Agreement.
+3.1 Restated Certificate of Incorporation of the Registrant.
*3.2 Restated Certificate of Incorporation of the Registrant to
be filed upon completion of this offering.
+3.3 Amended and Restated Bylaws of the Registrant.
*3.4 Restated Bylaws of the Registrant to be effective upon
completion of this offering.
*4.1 Form of Common Stock Certificate.
*5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. with respect to the legality of securities being
registered.
+10.1 The Registrant's 1999 Employee, Director and Consultant
Stock Option Plan.
+10.2 The Registrant's 1997 Stock Option Plan.
+10.3 Second Amended and Restated Registration Rights Agreement,
dated November 17, 1999 by and between the Registrant and
Certain Stockholders.
+10.4 Agreement of Sublease, dated August 15, 1998, by and between
Avalanche Solutions, Inc. and the Registrant.
+10.5 Office Service Agreement, dated October 29, 1999, by and
between Vantas West Wacker, Inc., dba VANTAS, and the
Registrant.
+10.6 Office Service Agreement, dated June 30, 1999, by and
between Vantas and the Registrant.
**10.7 Anchor Tenant Agreement, dated November 16, 1999, by and
between America Online, Inc. and the Registrant.
**10.8 Special Delivery/Special Offer Agreement, dated August 15,
1999, by and between Lycos, Inc. and the Registrant.
**10.9 Agreement, dated November 17, 1999, by and between Ford
Motor Co. and the Registrant.
**10.10 Anchor Provider Agreement, dated August 27, 1999, by and
between Microsoft Corporation and the Registrant.
**10.11 Advertising Insertion Order, dated September 1, 1999, by and
between Yahoo! Inc. and the Registrant.
+10.12 Asset Purchase and Assumption of Liabilities Agreement,
dated December 30, 1998, by and between the Registrant and
Concrete Media Construction, LLC.
</TABLE>
II-3
<PAGE> 90
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
+10.13 Asset Purchase and Assumption of Liabilities Agreement,
dated January 29, 1999, by and between the Registrant and
Girls On, Inc.
23.1 Consent of Deloitte & Touche LLP
*23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. (see Exhibit 5.1)
+24.1 Powers of Attorney (See page II-5)
+27.1 Financial Data Schedule
</TABLE>
- ------------
* To be filed by amendment.
+ Previously filed.
** Confidential treatment has been requested for a portion of this exhibit.
(b) FINANCIAL STATEMENT SCHEDULES
Financial Statement Schedules are omitted because the information is
included in our financial statements or notes to those financial statements.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 14 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 91
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in New York, New York, on December 30, 1999.
BOLT, INC.
By: /s/ DANIEL A. PELSON
------------------------------------
Daniel A. Pelson
President & Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities held on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DANIEL A. PELSON President, Chief Executive December 30, 1999
- --------------------------------------------------- Officer and Director
Daniel A. Pelson (principal executive
officer)
/s/ ALBERT G. PASTINO Chief Financial Officer December 30, 1999
- --------------------------------------------------- (principal financial and
Albert G. Pastino accounting officer)
ROBERT DOVE* Director December 30, 1999
- ---------------------------------------------------
Robert Dove
WILLIAM PEABODY* Director December 30, 1999
- ---------------------------------------------------
William Peabody
SAMANTHA MCCUEN* Director December 30, 1999
- ---------------------------------------------------
Samantha McCuen
STEPHEN J. HARRICK* Director December 30, 1999
- ---------------------------------------------------
Stephen J. Harrick
ALAN COLNER* Director December 30, 1999
- ---------------------------------------------------
Alan Colner
</TABLE>
* By executing his name hereto, Daniel A. Pelson is signing this document on
behalf of the persons indicated above pursuant to the powers of attorney duly
executed by such persons and filed with the Securities and Exchange Commission.
<TABLE>
<C> <S> <C>
By: /s/ DANIEL A. PELSON
----------------------------------------------
Daniel A. Pelson
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 92
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
*1.1 Form of Underwriting Agreement.
+3.1 Restated Certificate of Incorporation of the Registrant.
*3.2 Restated Certificate of Incorporation of the Registrant to
be filed upon completion of this offering.
+3.3 Amended and Restated Bylaws of the Registrant.
*3.4 Restated Bylaws of the Registrant to be effective upon
completion of this offering.
*4.1 Form of Common Stock Certificate.
*5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. with respect to the legality of securities being
registered.
+10.1 The Registrant's 1999 Employee, Director and Consultant
Stock Option Plan.
+10.2 The Registrant's 1997 Stock Option Plan.
+10.3 Second Amended and Restated Registration Rights Agreement,
dated November 17, 1999 by and between the Registrant and
Certain Stockholders.
+10.4 Agreement of Sublease, dated August 15, 1998, by and between
Avalanche Solutions, Inc. and the Registrant.
+10.5 Office Service Agreement, dated October 29, 1999, by and
between Vantas West Wacker, Inc., dba VANTAS, and the
Registrant.
+10.6 Office Service Agreement, dated June 30, 1999, by and
between Vantas and the Registrant.
**10.7 Anchor Tenant Agreement, dated November 16, 1999, by and
between America Online, Inc. and the Registrant.
**10.8 Special Delivery/Special Offer Agreement, dated August 15,
1999, by and between Lycos, Inc. and the Registrant.
**10.9 Agreement, dated November 17, 1999, by and between Ford
Motor Co. and the Registrant.
**10.10 Anchor Provider Agreement, dated August 27, 1999, by and
between Microsoft Corporation and the Registrant.
**10.11 Advertising Insertion Order, dated September 1, 1999, by and
between Yahoo! Inc. and the Registrant.
+10.12 Asset Purchase and Assumption of Liabilities Agreement,
dated December 30, 1998, by and between the Registrant and
Concrete Media Construction, LLC.
+10.13 Asset Purchase and Assumption of Liabilities Agreement,
dated January 29, 1999, by and between the Registrant and
Girls On, Inc.
23.1 Consent of Deloitte & Touche LLP
*23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. (see Exhibit 5.1)
+24.1 Powers of Attorney (See page II-5)
+27.1 Financial Data Schedule
</TABLE>
- ------------
* To be filed by amendment.
+ Previously filed.
** Confidential treatment has been requested for a portion of this exhibit.
<PAGE> 1
EXHIBIT 10.7
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS WITH ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
CONFIDENTIAL
ANCHOR TENANT AGREEMENT
This Anchor Tenant Agreement (this "AGREEMENT"), effective as of
November 16, 1999 (the "EFFECTIVE DATE"), is made and entered into by and
between America Online, Inc. ("AOL"), a Delaware corporation, with its principal
offices at 22000 AOL Way, Dulles, Virginia 20166, and Bolt Media, Inc.
("INTERACTIVE CONTENT PROVIDER", "ICP" or "BOLT"), a Delaware corporation, with
its principal offices at 304 Hudson Street, New York, New York 10013 (each a
"Party" and collectively the "Parties").
INTRODUCTION
AOL and ICP each desires that AOL provide access to the ICP Internet
Site and ICP Programming through the AOL Network, subject to the terms and
conditions set forth in this Agreement. Defined terms used but not otherwise
defined in this Agreement shall be as defined on Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 PROMOTION AND DISTRIBUTION. Beginning on a mutually agreed
upon date(s) after the Effective Date, AOL shall provide ICP
with the promotions set forth on Exhibit A-1 in accordance
with the specifications set forth therein. The promotions
described on Exhibit A-1 and any other promotions provided by
AOL to ICP shall be referred to as the "PROMOTIONS." Except to
the extent expressly described herein, the exact form,
placement and nature of the Promotions shall be determined by
AOL in its reasonable editorial discretion.
1.2 CONTENT. The ICP Internet Site and ICP Programming shall
consist of the Content described on the programming plan
attached as Exhibit A-2 (the "PROGRAMMING PLAN"). ICP shall
inform AOL of relevant search terms and terminology associated
with popular areas and functionality within the ICP Internet
Site and ICP Programming for AOL's promotional and Content
integration purposes. The inclusion of any additional Content
within the ICP Internet Site and/or ICP Programming
(including, without limitation, any features, functionality or
technology) that is not in keeping with the Programming Plan
and the relevant AOL policies set forth or otherwise
referenced herein shall be subject to AOL's prior written
approval.
1.3 LICENSE. ICP hereby grants to AOL for the Term a non-exclusive
worldwide license to use, market, license, store, distribute,
reproduce, display, adapt, communicate, perform, translate,
transmit, and promote the ICP Internet Site, the ICP
Programming and the Licensed Content (or any portion thereof)
through the AOL Network as AOL may determine in its reasonable
discretion in accordance with this Agreement, including
without limitation the right to integrate Content from the ICP
Internet Site and/or ICP Programming by linking to specific
areas thereon, provided that the link to any such Content on
the AOL Network shall conform to the specifications of an ICP
Presence.
1.4 MANAGEMENT. ICP shall design, create, edit, manage, review,
update (on a daily basis or as otherwise specified herein),
and maintain the ICP Internet Site, ICP Programming and the
Licensed Content in a timely and professional manner and in
accordance with the terms of this Agreement and shall keep the
Licensed Content current, accurate and well-organized at all
times. ICP shall ensure that the Licensed Content within the
ICP Internet Site and ICP Programming is equal to or better
than the Content distributed by ICP through any other ICP
Interactive Site in all material respects, including without
limitation, quality, breadth, depth, timeliness,
functionality, features, prices of products and services and
terms and conditions, except to the extent inclusion of
<PAGE> 2
such Content would otherwise violate this Agreement, provided
that any changes to the ICP Internet Site, ICP Programming or
the Licensed Content that are made to comply with this Section
shall be subject to AOL's review and approval and the terms of
this Agreement. Notwithstanding the foregoing or any term of
this Agreement, such obligations to produce Content that is
"equal to or better" than that of other ICP Interactive Sites
[*] where such variations in the quality of ICP's Content are
caused solely by the limitations of [*] AOL Member bandwidth,
or any other feature of the applicable AOL Property;
provided, however that upon the [*] set forth above, ICP will
be obligated to include within the ICP Internet Site, ICP
Programming and Licensed Content such previously excluded
Content that is "equal to or better" than that of other ICP
Interactive Sites. Except as specifically provided for herein,
AOL shall have no obligations of any kind with respect to the
ICP Internet Site or ICP Programming. ICP shall be responsible
for any hosting or communication costs associated with the ICP
Internet Site and ICP Programming, including, without
limitation, the costs associated with (i) any agreed-upon
direct connections between the AOL Network and the ICP
Internet Site or ICP Programming or (ii) a mirrored version of
the ICP Internet Site. AOL Members shall not be subject to a
registration process (or any similar process) in order to
access the ICP Internet Site, ICP Programming or the Licensed
Content. [*]. In the event ICP fails to comply with any
material term of this Agreement, including without limitation
ICP's obligations under this Section 1.4 and Exhibit A-3, and
ICP's promotional obligations under Section 2, AOL will have
the right (in addition to any other remedies available to AOL
hereunder), provided such failure to comply continues for
more than [*] following notification by AOL, to decrease the
promotion it provides to ICP hereunder and/or to decrease or
cease any other contractual obligation of AOL hereunder until
such time as ICP corrects its non-compliance, in which event
AOL will be relieved of the proportionate amount of any
promotional commitment made to ICP by AOL hereunder
corresponding to such decrease in promotion.
1.5 CARRIAGE FEE. ICP shall pay AOL [*] as follows:
1.5.1 CASH PAYMENT. ICP shall pay AOL [*] as follows:
ICP shall pay AOL [*] on the Effective Date and [*]
on or before each of the dates that are three (3)
months, six (6) months, nine (9) months, twelve (12)
months, fifteen (15) months and eighteen (18) months
respectively, after the Effective Date.
1.5.2 IN-KIND PROGRAMMING. ICP shall provide AOL with
the equivalent of [*] made up of [*] (the "ICP
In-Kind Commitments"). Without limiting any other
rights or remedies available to AOL, AOL's
distribution and Impressions commitments specified
in Sections 1.1 and 1.6 herein are and will be
contingent upon provision by ICP of the ICP In-Kind
Commitments [*].
1.6 IMPRESSIONS TARGET. AOL shall provide ICP with at least [*]
Impressions during the Term from placement of ICP Presences on
the AOL Network (the "IMPRESSIONS TARGET") substantially as
follows: (a) at least [*] Impressions on the AOL Service, (b)
at least [*] Impressions within Shop@AOL and (c) at least [*]
Impressions elsewhere on the AOL Network as set forth in the
carriage plan on Exhibit A. Any shortfall in Impressions from
(a) above may be made up by over-delivery of Impressions in
(c) above. AOL shall use commercially reasonable efforts to
deliver the Impressions in equal amounts throughout the Term,
subject to fluctuations in AOL Network usage.
2
<PAGE> 3
In the event that the Impressions Target is not met (or will
not, in AOL's reasonable judgment, be met) during the Term,
then as ICP's sole remedy, upon mutual agreement of the
Parties either (a) the Term shall be extended for up to six
(6) months without additional carriage fees payable by ICP,
(b) AOL shall provide ICP with the remaining Impressions in
the form of advertising space within the AOL Network of
comparable value to the undelivered Impressions (as reasonably
determined by AOL) within contextually relevant areas of the
AOL Network (e.g., the AOL Service music channel), or (c) some
combination thereof.
1.7 MEMBER BENEFITS. ICP will generally promote through the ICP
Internet Site any special or promotional offers made available
by or on behalf of ICP through any ICP Interactive Site. In
addition, ICP shall make reasonable efforts to promote through
the ICP Internet Site special offers exclusively available to
AOL Members ("AOL Exclusive Offers"). ICP shall feature at
least one AOL Exclusive Offer for AOL Members (except as
otherwise mutually agreed upon by the Parties) each month. ICP
shall provide benefits to AOL Members, such as price
discounts, product enhancement, unique service benefits,
promotional offers, member of the day recognition and such
other contests services and discounts as ICP may, in its sole
discretion, decided to deliver from time to time. ICP will
provide AOL with reasonable prior notice of AOL Exclusive
Offers and other special offers and AOL shall make reasonable
efforts to market the availability of such offers.
1.8 SITE AND CONTENT PREPARATION. ICP shall achieve Site and
Content Preparation within [*] days after the Effective Date.
"SITE AND CONTENT PREPARATION" shall mean that ICP shall have
completed all necessary production work (including completion
of all necessary training for AOL's proprietary "Rainman"
publishing tool for the management of the message boards and
chat rooms) for the ICP Internet Site, all ICP Programming and
any other related areas or screens (including programming all
Content thereon); customized and configured the ICP Internet
Site, and all ICP Programming in accordance with this
Agreement; and completed all other necessary work (including,
without limitation, undergone all AOL site testing set forth
on Exhibit F) to prepare the ICP Internet Site, all ICP
Programming and any other related areas or screens to launch
on the AOL Network as contemplated hereunder. In the event ICP
has not achieved Site and Content Preparation for the (a) ICP
Internet Site within [*] days after the Effective Date and (b)
ICP Programming for message boards and chat within [*] days
after the Effective Date (provided that ICP uses reasonable
efforts to achieve Site and Content Preparation for this
section (b) within [*] days after the Effective Date), then in
addition to any other remedies available, the Impressions
Target set forth in Section 1.6 shall be reduced on a pro rata
basis based on the number of days after such [*] and [*] day
periods that ICP achieves Site and Content Preparation divided
by [*]. In the event ICP has not achieved Site and Content
Preparation within [*] days after the Effective Date, then in
addition to any other remedies available, AOL shall have the
right to terminate this Agreement by giving ICP written notice
thereof. If ICP is delayed in achieving Site and Content
Preparation due to any delay by in performing its obligations
or exercising its approval rights under this Agreement, then
the [*] day and [*] day periods referenced in this Section
shall each be extended by the amount of time of ICP's delay
solely attributable to such delay by AOL.
1.9 EXCLUSIVITY. During the Term, ICP shall not enter into any
arrangements (written or otherwise) substantially similar in
nature to this Agreement with any third party Interactive
Service. During the Term and for the twelve (12) month period
after the expiration or other termination of the Term, ICP
shall not become an Internet service provider.
1.10 TEEN POLICIES: The Parties agree that the entire ICP Internet
Site and all ICP Programming is designated as Content targeted
to Young Teens (children ages 13 - 15) and/or Mature Teens (16
- 17). ICP shall ensure that all Content distributed on or
through the ICP Internet Site and all ICP Programming complies
with any relevant AOL policy (e.g., Young Teens, Mature Teens)
including any viewruling obligations.
3
<PAGE> 4
2. CROSS-PROMOTION
2.1 COOPERATION. Each Party shall cooperate with and reasonably
assist the other Party in supplying material for marketing and
promotional activities.
2.2 PRIMARY SITE. ICP shall include a prominent, actionable
promotional button (at least 90 x 30 pixels or 70 x 70 pixels
in size) appearing on the first screen of the Primary Site
(the "AOL PROMO"), to promote the following AOL products or
services: [*] (to the extent the Parties agree to an
arrangement therein) and [*], or other such products and
services as may be mutually agreed upon by the Parties. AOL
shall provide the creative content to be used in the AOL Promo
subject to the approval of ICP, which approval shall not be
unreasonably withheld or delayed. ICP shall post (or update,
as the case may be) the creative content supplied by AOL
within the spaces for the AOL Promo within five days of its
receipt of such content from AOL. Without limiting any other
reporting obligations of the Parties contained herein, ICP
shall provide AOL with monthly written reports specifying the
number of impressions to the pages containing the AOL Promo
during the prior month. In the event that AOL elects to serve
the AOL Promo to the Primary Site from an ad server controlled
by AOL or its agent, ICP shall take all reasonable operational
steps necessary to facilitate such ad serving arrangement,
including, without limitation, inserting HTML code designated
by AOL on the pages of the Primary Site on which the AOL Promo
will appear. In addition, within each ICP Interactive Site,
ICP shall provide prominent promotion for the keywords
associated with the ICP Internet Site.
2.2.1 AOL COMPONENT PRODUCTS. To the extent ICP offers or
promotes any products or services similar to AOL's
component products and services (including the AOL
Tools listed in Section 5.2(c)) ([*] (a) specific
products and services which ICP has written
agreements to promote on the Primary Site as of the
Effective Date and (b) ICP-only branded products and
services), ICP shall provide equal or greater
promotions for such AOL-designated products.
Notwithstanding the generality of the foregoing, ICP
will promote a co-branded version of AOL Instant
Messenger ("AIM") as ICP's exclusive instant
messaging service on the Primary Site and, during
registration and within member profiles on the
Primary Site, ICP shall include a default option for
users to provide their AOL screen names and/or AIM
screen names. In the event that AOL develops or
acquires any additional component products or
services during the Term or any extension thereof,
ICP shall [*] to provide the promotion set forth in
this Section 2.2.1 for such newly developed or
acquired AOL products or services.
2.3 OTHER MEDIA. [*] ICP's written contractual arrangements with
third parties as of the Effective Date prohibiting ICP from
fulfilling its obligations under this Section 2.3, in [*] of
ICP's television, radio, print and "out of home" (e.g., buses
and billboards, point of purchase and other "place-based"
promotions) advertisements and in any publications, programs,
features or other forms of media over which ICP exercises at
least partial editorial control, ICP will include specific
references or mentions (orally where possible) of the
availability of the ICP Internet Site through the AOL
Network. Such references or mentions shall be at least as
prominent as any references that ICP makes to any ICP
Interactive Site (by way of site name, related company name,
URL or otherwise). Without limiting the generality of the
foregoing, ICP's listing of the "URL" for any ICP Interactive
Site will be accompanied by an equally prominent listing of
the "keyword" term on AOL for the ICP Internet Site, which
listing shall conform to the keyword guidelines attached
hereto as Exhibit F. All such references or mentions of AOL,
and the use of AOL's trademarks, trade names and service
marks in connection therewith, shall be in accordance with
Section II of Exhibit C.
2.4 PREFERRED ACCESS PROVIDER. When promoting AOL, ICP shall
promote AOL as the preferred access provider through which a
user can access the ICP Internet Site (and ICP shall not
4
<PAGE> 5
implement or authorize any other promotions on behalf of any
third parties which are inconsistent with the foregoing).
3. REPORTING; PAYMENT.
3.1 AOL USAGE REPORTING. AOL shall make available to ICP a monthly
report specifying for the prior month (changing to weekly if
such reports become generally available during the Term)
aggregate usage and Impressions with respect to ICP's presence
on the AOL Network, which are similar in substance and form to
the reports provided by AOL to similarly situated AOL content
partners.
3.2 ICP INTERNET SITE REPORTING. ICP will supply AOL with monthly
reports that reflect total impressions by AOL Members to the
ICP Internet Site during the prior month, the aggregate number
of and aggregate dollar value associated with all transactions
involving AOL Members and any registration information
obtained from AOL Members at the ICP Internet Site during the
period in question. ICP represents that all URLs related to
the ICP Internet Site are listed on Exhibit A-2 and ICP shall
provide AOL with an update of such list promptly upon any
change thereto.
3.3 PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a monthly
report documenting its compliance with any promotional
commitments it has undertaken pursuant to this Agreement
substantially in the form attached as Exhibit D hereto, and
ICP shall provide AOL with impressions data with respect to
the promotions on the Primary Site specified in Section 2.
3.4 ADVERTISING. ICP shall provide monthly aggregate information
to AOL regarding (i) AOL Advertisements (as defined below)
sold by ICP or its agents and (ii) all advertising or
promotional activity on the ICP Internet Site. ICP shall
indicate the name and products of such advertisers.
3.5 WIRED PAYMENTS. All payments by ICP hereunder shall be paid in
full in U.S. funds wired to the "America Online" account,
[*] at the Chase Manhattan Bank, 1 Chase Manhattan Plaza, New
York, New York 10081 [*], or such other account of which AOL
shall give ICP written notice.
4. ADVERTISING AND MERCHANDISING
4.1 AOL NETWORK ADVERTISING INVENTORY. AOL owns all right, title
and interest in and to the advertising and promotional spaces
within the AOL Network including, without limitation, the AOL
Frames and shall have the right to all revenues generated
therefrom. The specific advertising inventory within any such
AOL forms or pages shall be as reasonably determined by AOL.
ICP owns all right, title and interest in and to the
advertising and promotional spaces within the Primary Site,
the ICP Internet Site and any other linked ICP Interactive
Site and shall have the right to all revenues generated
therefrom.
4.2 ICP SALE OF ADVERTISEMENTS. ICP shall have the [*] right
[*] to license or sell Advertisements in or through the ICP
Internet Site ("AOL ADVERTISEMENTS"), subject to such
AOL-standard restrictions as AOL may disclose in writing to
ICP and shall have the right to all revenues therefrom.
4.3 INTERACTIVE COMMERCE. Any merchandising permitted hereunder by
ICP shall be subject to the terms and conditions of the
Shopping Channel Promotional Agreement attached hereto as
Exhibit G and shall only be conducted through the Merchant
Site (as defined in Exhibit G).
5. CUSTOMIZED ICP PROGRAMMING AND ICP INTERNET SITE
5.1 PRODUCTION; PERFORMANCE. ICP shall optimize all ICP
Programming and the ICP Internet Site for distribution
hereunder according to AOL specifications and guidelines
(including, without
5
<PAGE> 6
limitation, any HTML publishing guidelines) and the Operating
Standards set forth on Exhibit E attached hereto.
5.2 CUSTOMIZATION. ICP shall customize all ICP Programming and the
ICP Internet Site for AOL Members as follows:
(a) The ICP Internet Site shall be a [ * ] ICP shall
customize and co-brand the ICP Internet Site and ICP
Programming for distribution over the AOL Properties
listed in Exhibit A-1 using AOL's design guideline
templates and co-branding requirements, including by (x)
[ * ] and (y) [ * ] In addition, ICP shall comply with any
customization and co-branding requirements set forth on
Exhibit A. ICP shall make reasonable changes to the
customization and/or co-branding of the ICP Internet Site
and ICP Programming to conform to the standard
requirements of any AOL Property or otherwise reasonably
requested by AOL during the Term.
(b) ICP shall ensure that AOL Members accessing the ICP
Programming or linking to the ICP Internet Site do not
receive advertisements, promotions or links (i) for any
entity reasonably construed to be in competition with AOL
or the applicable AOL Property, (ii) in a category in
which AOL or the applicable AOL Property has an exclusive
or other preferential relationship, or (iii) otherwise in
violation of the applicable AOL Property's then-standard
advertising policies in each case solely to the extent
that ICP has been [*] conflicts and policies in writing
by AOL. ICP shall ensure that all Advertisements sold by
ICP or its agents comply with all applicable federal,
state and local laws and regulations.
(c) Within the ICP Internet Site and ICP Programming, ICP
shall use (and AOL shall provide and grant to ICP, free of
charge, all rights necessary to use) AOL's tools and
technology ("AOL TOOLS") for all community and
communications utilities and functionality (including,
without limitation, chat, message boards, web page
community services such as AOL Hometown, IP telephony,
email, address book, web-based greeting cards and instant
messaging); any registration or similar processes
permitted hereunder; navigation services (e.g., search and
directory products, classified listings, white pages and
yellow pages); personalization services (e.g., Suitcase,
hosting, data exchange, personalized news service,
personal finance services and calendaring);
commerce/content aggregation services (e.g., Shop@AOL and
local content); audio and video streaming technology and
content; and such other tools as may be necessary to
provide a level of service and functionality comparable to
the Primary Site or as may be mutually agreed upon by the
Parties.
(d) ICP may host all pages of the ICP Internet Site under
the following co-branded domain name: aol.bolt.com.
5.3 LINKS ON ICP INTERNET SITE. The Parties will work together on
mutually acceptable links (including links back to AOL) within
the ICP Internet Site and ICP Programming in order to create a
robust and engaging AOL member experience and the ICP Internet
Site and ICP Programming that are customized for the AOL
Service shall not contain any pointers or links to any other
area on or outside the AOL Network without AOL's prior written
consent, other than standard advertising that otherwise
complies with this Agreement.
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5.4 REVIEW. ICP shall allow appropriate AOL personnel to have
reasonable access to all ICP Programming and the ICP Internet
Site from time to time for the purpose of reviewing such sites
to determine compliance with the provisions of this Section 5.
6. TERM, TERMINATION, PRESS RELEASES.
6.1. TERM. Unless earlier terminated as set forth herein, the
initial term of this Agreement shall commence on the Effective
Date and expire twenty six (26) months from the Effective
Date. AOL shall have the right to extend this Agreement for
one additional six-month period (the "EXTENSION TERM") solely
with respect to the ICP Programming set forth in Exhibit
A-2(c) and A-2(d). During the Extension Term, AOL shall pay
ICP [ * ]% of Advertising Revenues (as defined in Exhibit B)
and AOL may terminate the Agreement at any time upon [*] days
prior written notice to ICP. During the Extension Term, (i)
all references in the Agreement to the ICP Internet Site shall
be deleted, (ii) ICP shall continue to receive "Powered by
Bolt" promotion on all Bolt-monitored message boards and chats
and (iii) the following Sections of the Agreement shall
survive: 1.2, 1.3, 1.10, 4.1, 5.2(b), 5.2(c), 6.1, 7, the
third bullet under Exhibit A-1I, A-2 "Overview", A-2(c),
A-2(d), A-3, Exhibit B and Exhibit C.
AOL shall exercise its renewal option under this Section 6.1
by providing ICP with written notice of such election no later
than thirty (30) days prior to the expiration of the initial
term. Upon the expiration or earlier termination of this
Agreement, AOL may, at its discretion, continue to promote one
or more "pointers" or links from the AOL Network to an ICP
Interactive Site and continue to use ICP's trade names, trade
marks and service marks in connection therewith (collectively,
a "Continued Link"). The provisions of this Section 6.1
related to a Continued Link shall survive the completion,
expiration, termination or cancellation of this Agreement.
6.2 TERMINATION FOR BREACH. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days
written notice thereof; provided, however, that AOL will not
be required to provide notice to ICP in connection with ICP's
failure to make any payment required under Section 1.5, and
the cure period with respect to any scheduled payment shall be
fifteen (15) days from the date such payment is due.
6.3 TERMINATION FOR BANKRUPTCY/INSOLVENCY OR CHANGES IN BUSINESS.
Either Party may terminate this Agreement immediately
following written notice to the other Party if the other Party
(i) ceases to do business in the normal course, (ii) becomes
or is declared insolvent or bankrupt, (iii) is the subject of
any proceeding related to its liquidation or insolvency
(whether voluntary or involuntary) which is not dismissed
within ninety (90) calendar days or (iv) makes an assignment
for the benefit of creditors.
6.4 PRESS RELEASES. Each Party will submit to the other Party, for
its prior written approval, which will not be unreasonably
withheld or delayed, any press release or any other public
statement ("PRESS RELEASE") regarding the transactions
contemplated hereunder. Notwithstanding the foregoing, either
Party may issue Press Releases and other disclosures as
required by law or as reasonably advised by legal counsel
without the consent of the other Party and in such event, the
disclosing Party will provide at least five (5) business days
prior written notice of such disclosure. The failure to obtain
the prior written approval of the other Party shall be deemed
a material breach of this Agreement. Because it would be
difficult to precisely ascertain the extent of the injury
caused to the non-breaching Party, in the event of such
material breach, the non-breaching Party may elect either to
(a) terminate this Agreement immediately upon notice to the
other Party, or (b) elect, as liquidated damages, to modify
the Impressions commitment hereunder by fifteen percent (15%)
(i.e., either an increase in the Impressions commitment if AOL
has violated this provision or a decrease in the Impressions
commitment if ICP has violated this provision). The Parties
agree that the liquidated damages set forth in the preceding
sentence are a reasonable approximation of the injury that
would be suffered by the non-breaching Party.
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7. TERMS AND CONDITIONS. The terms and conditions set forth on the
Exhibits attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the Effective Date.
AMERICA ONLINE, INC. BOLT MEDIA, INC.
By: /s/ Jonathan R. Edsor By: /s/ Daniel Pelson
---------------------------- -----------------------------
Print Name: Jonathan R. Edsor Print Name: Daniel Pelson
Title: Executive Director, Business Affairs Title: CEO
Date: 11/30/99 Date: 12/1/99
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EXHIBIT A
EXHIBIT A-1: CARRIAGE PLAN
I. AOL SERVICE
- Permanent branded placements on the AOL Teens channel and
Teens Real Life department main screens.
- "Powered by Bolt" artwork in the Teens "Chat & Boards" area
- "Powered by Bolt" promotion on all Bolt-monitored message
board and chat areas
- Featured content placement throughout Teen channel and other
mutually agreed channels / departments based on AOL editorial
decision
II. SHOP@AOL (AOL SERVICE, NETSCAPE, AOL.COM AND COMPUSERVE)
<TABLE>
<CAPTION>
PLACEMENT WITHIN SHOPPING CHANNEL LEVEL OF PROMOTION
--------------------------------- ------------------
<S> <C>
Apparel / Boys - Teens Anchor
Apparel / Girls - Teens Gold
Sports & Outdoors / Shoes & Apparel Silver
Audio Systems Silver
</TABLE>
III. MEDIA PLAN
Online media schedule targeted to 18-24 year old AOL members in
entertainment, music and mail sections of ICQ, Netcenter and
Spinner/Winamp.
EXHIBIT A-2: PROGRAMMING PLAN
OVERVIEW
Bolt will manage and monitor AOL Teens Channel message board areas and provide
content written exclusively by teens. Bolt will create a "clean" version of the
Primary Site that adheres to AOL teen content policies, and incorporate AOL user
submissions into content development process. Bolt will feature "best" content
as determined by Bolt's editorial decisions. Bolt will enable AOL to provide a
stronger sense of community programming "by teens for teens." Bolt will also
provide the back-end monitoring for expanded Teens Channel chat areas.
PROGRAMMING REQUIREMENTS
(a) Bolt will create a customized version of the Primary Site (per the
co-branding, teen policies, etc. referenced in the Agreement) in HTML
located at aol.bolt.com.
(b) Bolt will provide the following specific content (updated on a regular
basis)
- A minimum of [ * ] pieces of community-driven content per week
such as teen reviews (CDs, concerts, movies, video games,
etc.), and member-written articles on teen lifestyle (style
trends, dating, sports, money, teen-interest news features,
school life, etc.)
- A minimum of [ * ] original feature per month (such as the
Bolt Virtual Corsage).
(c) Bolt will monitor approximately [ * ] AOL Teens Channel message boards,
each for a minimum of twelve (12) hours per day
- Bolt will remove posts that violate TOS, reveal personal
information, or are generally off-topic within twenty four
(24) hours (see Exhibit A-3)
- AOL will provide Bolt with guidelines for use in determining
(i) what content should be removed; and (ii) a monitor's
options / processes / tools for removing content and/or
silencing
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members. (see Exhibit A-3)
- Basic requirements of Bolt's staff are outlined in Exhibit
A-3.
(d) Bolt will monitor / host a minimum of [*] chat rooms for the AOL Teens
Channel according to the following schedule:
- On Saturdays and Sundays, chat rooms must be staffed from 9AM
to 1AM EST
- On Weekdays from September to May, chat rooms must be staffed
from 3PM to 1AM EST.
- On Weekdays from June to August, chat rooms must be staffed
from 9AM to 1AM EST
(e) In general, the ICP Internet Site will live as a separate community
from that found on the Primary Site, but will feature the same content
features that are produced for the Primary Site and, within ninety (90)
days after the Effective Date, will feature a percentage of AOL
Member-generated content based on the number of submissions by AOL
Members as follows:
- If AOL Members make [*] submissions per day, then [*]% of the
content on the ICP Internet Site will be AOL Member-generated
content.
- If AOL Members make [*] submissions per day, then [*]% of the
content on the ICP Internet Site will be AOL Member-generated
content.
- If AOL Members make [*] submissions per day, then [*]% of the
content on the ICP Internet Site will be AOL Member-generated
content.
- If AOL Members make [*] submissions per day, then [*]% of the
content on the ICP Internet Site will be AOL Member-generated
content.
(f) Registration
- User registration is a required part of Bolt's content
development process. AOL will permit Bolt to solicit content
from AOL Members and will grant a license for Bolt to use and
post that content on the Bolt.com and ICP Internet sites.
- AOL members will be identified on the aol.bolt.com site solely
by their:
- AOL Screen name
- Gender
- Birthday
- Zip Code
- Email Address
- IM Address
- AOL will integrate user profiles with Bolt.com to ensure AOL
Members do not have to re-register to participate in the
content development process at the users discretion.
EXHIBIT A-3: MESSAGE BOARD AND CHAT ROOM MANAGEMENT REQUIREMENTS:
MANAGEMENT TERMS AND REQUIREMENTS: Any Content submitted by ICP or its agents
within message boards or any comparable vehicles will be subject to the license
grant relating to submissions to "public areas" set forth in the AOL Terms of
Service. ICP acknowledges that it has no rights or interest in AOL Member
submissions to message boards within the AOL Network and that AOL owns all
right, title and interest in and to the message boards and Content therein
during and after the Term. AOL will grant Bolt the license to solicit content
from AOL members which will be posted on the ICP Internet Site and the Primary
Site.
All content posted on pages within the ICP Internet sites will be the property
of Bolt.com, and Bolt will give AOL a perpetual license to this content. ICP
shall manage the message boards in accordance with a mutually agreed upon
programming plan, AOL's Terms of Service and AOL's then current policies
relating to message boards and member communications. In managing the message
boards, ICP agrees to refrain from editing or altering any opinion expressed by
an AOL Member, except in cases when ICP (i) has a good faith belief that the
Content in question violates an applicable law, regulation, third party right or
portion of AOL's Terms of Service or (ii) obtains AOL's prior approval.
ICP shall retain adequate personnel to manage the message boards for at least
twelve (12) hours per day (preferably afternoons and evenings) who (A) are at
least 18 years of age, (B) are paid employees of ICP, (C) have passed a
background check through an authorized organization (AOL may provided a
recommendation if necessary) and (D)
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have been adequately trained in, among other things, how to comply with AOL's
monitoring and hosting standards for areas targeted toward young teens at no
cost to ICP, and, at AOL's option, shall have undergone training acceptable to
AOL at no cost to ICP (except for ICP's travel and lodging costs associated with
such training). If at any time AOL notifies ICP that AOL is not satisfied that
ICP is upholding AOL's standards or commercially reasonable policies and
standards as determined by AOL in managing the message boards or managing the
message boards and chat rooms in accordance with the Programming Plan, and ICP
does not rectify the problems within thirty (30) days after receiving such
notice, AOL may terminate ICP's management of the message boards and chat rooms
and any Promotions associated therewith.
CHAT ROOMS: On average, Bolt will provide one host per two (2) chat rooms.
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EXHIBIT B -- DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
ADVERTISEMENTS. Promotions, advertisements, links, pointers and similar services
or rights.
ADVERTISING REVENUES. Aggregate amounts collected by AOL or AOL's agents, as the
case may be, arising from the license or sale of Advertisements during the
Alternative Extension Term through the message boards and chat areas set forth
on the "carriage plan" in Exhibit A, less applicable Advertising Sales
Commissions.
ADVERTISING SALES COMMISSION. Actual amounts paid as commission to third party
agencies in connection with sale of an Advertisement during the Alternative
Extension Term through the message boards and chat areas set forth on the
"carriage plan" in Exhibit A, or [ * ]% in the event that AOL sells the
Advertisement directly and will not be deducting third party agency fees.
AFFILIATE. Any agent, distributor or franchisee of AOL, or an entity that,
directly or indirectly, controls, is controlled by, or is under common control
with AOL, including any entity in which AOL holds, directly or indirectly, at
least a nineteen percent (19%) equity interest.
AOL INSTANT MESSENGER. The AOL-branded service, currently available through the
Internet, that enables end-users of such service to exchange, in real-time,
private, personalized messages with, and to monitor the online status of, other
end-users of such service and AOL Members.
AOL SERVICE. The standard narrow-band U.S. version of the America Online(R)
brand service, specifically excluding (a) AOL.com(SM) and any other AOL
Interactive Site, (b) the international versions of an America Online service
(e.g., AOL Japan), (c) the CompuServe(R) brand service and any other CompuServe
products or services, (d) Netscape Netcenter(TM) and any other Netscape(R)
products or services, (e) "ICQ(SM)," "AOL NetFiND(SM)," "AOL Instant
Messenger(SM)," "Digital City(SM)," "AOL NetMail(SM)," "Real Fans(SM)",
"Love@AOL(SM)", "Entertainment Asylum(SM)," "AOL Hometown(SM)" or any similar
independent product, service or property which may be offered by, through or
with the U.S. version of the America Online(R) brand service, (f) any
programming or content area offered by or through the U.S. version of the
America Online(R) brand service over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), (g) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through the U.S. version of the America Online(R) brand service,
(h) any property, feature, product or service which AOL or its affiliates may
acquire subsequent to the Effective Date and (i) any other version of an America
Online service which is materially different from the standard narrow-band U.S.
version of the America Online brand service, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded version of the service and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer.
AOL PROPERTY. Any product, service or property owned, operated, marketed,
distributed, or authorized to be distributed by or through AOL or its
Affiliates, including, without limitation, the AOL Service, Netscape and
AOL.com.
AOL LOOK AND FEEL. The elements of graphics, design, organization, presentation,
layout, user interface, navigation, trade dress and stylistic convention
(including the digital implementations thereof) within the AOL Network and the
total appearance and impression substantially formed by the combination,
coordination and interaction of these elements.
AOL MEMBER(S). Any user of the AOL Network, including authorized users
(including any sub-accounts under an authorized master account) of the AOL
Service and/or the CompuServe Service.
AOL NETWORK. (i) The AOL Service, Netscape, AOL.com, the CompuServe Service and
(ii) any other product, service or property owned, operated, distributed or
authorized to be distributed by or through AOL or its Affiliates worldwide (and
including those products, services and properties that are excluded from the
definitions of the AOL Service, AOL.com or any other AOL Property). It is
understood and agreed that the rights of ICP relate solely to particular AOL
Properties as expressly set forth in this Agreement and not generally to the AOL
Network.
BOLT LOOK AND FEEL. The elements of graphics, design, organization,
presentation, layout, user interface, navigation, trade dress and stylistic
convention (including the digital implementations thereof) within the ICP
Interactive Site and the Primary Site.
CHANGE OF CONTROL. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a party or (b) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
COMPUSERVE SERVICE. The standard HTML version of the narrow-band U.S. version of
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (b) any web-based service including
"compuserve.com", "cserve.com" and "cs.com", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g.,
third-party Content areas), (e) any yellow pages, white pages, classifieds or
other search, directory or review services or Content (f) any co-branded or
private label branded version of the U.S. version of the CompuServe brand
service, (g) any version of the U.S. version of the CompuServe brand service
which offers Content, distribution, services or functionality materially
different from the Content, distribution, services or functionality associated
with the standard, narrow-band U.S. version of the CompuServe brand service,
including, without limitation, any version of such service distributed through
any platform or device other than a desktop personal computer, (h) any property,
feature, product or service which CompuServe or its affiliates may acquire
subsequent to the Effective Date, (i) the America Online brand service and any
independent product or service which may be offered by, through or with the U.S.
version of the America Online brand service and (j) the HMI versions of the
CompuServe brand service.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of this Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "Confidential Information" shall not include information (a)
already lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, URLs, keywords and other navigational
elements, links, pointers, technology and software. For the avoidance of doubt
this definition shall not apply with respect to any Content of the ICP Internet
Site that is not Licensed Content and is distributed in the same form or a
substantially similar form on the Primary Site or any other ICP Interactive Site
and the limitations and policies applicable to Content hereunder shall not
govern use or exploitation thereof other than in connection with the ICP
Internet Site.
KEYWORD(TM) SEARCH TERMS. (a) The Keyword online search terms made available on
the AOL Service, combining AOL's Keyword online search modifier with a term or
phrase specifically related to ICP (and determined in accordance with the terms
of this Agreement) and (b) the Go Word online search terms made available on the
CompuServe Service, combining CompuServe's Go Word online search modifier with a
term or phrase specifically related to ICP (and determined in accordance with
the terms of this Agreement).
ICP COMPETITORS. [ * ]
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[ * ]
ICP INTERACTIVE SITE. Any interactive site or area (other than ICP Programming),
including any mirrored site or area, which is managed, maintained or owned by
ICP or its agents or to which ICP provides and/or licenses information, content
or other materials, including, by way of example and without limitation, (i) an
ICP site on the World Wide Web portion of the Internet or (ii) a channel or area
delivered through a "push" product such as the Pointcast Network or interactive
environment such as Microsoft's proposed Active Desktop or interactive
television service such as WebTV.
ICP INTERNET SITE. The version(s) of the Primary Site that is customized for
distribution through the AOL Network in accordance with this Agreement.
ICP PRESENCE. Any (a) ICP trademark or logo, (b) headline or picture from ICP
Content, (c) teaser, icon, or link to the ICP Internet Site or ICP Programming
and/or (d) other Content which originates from, describes or promotes ICP or
ICP's Content.
ICP PROGRAMMING. Any (a) area within the AOL Network or outside the AOL Network
but exclusively available to AOL Members, which area is developed, programmed,
and/or managed by ICP, in whole or in part, pursuant to this Agreement and all
Content thereon (including, without limitation, message boards, chat and other
AOL Member-supplied content areas contained therein) including, without
limitation, any co-branded site or page, but excluding the ICP Internet Site and
(b) Content provided to AOL by ICP pursuant to this Agreement for distribution
on or through the AOL Network other than on the ICP Internet Site.
IMPRESSION. User exposure to an ICP Presence, as such exposure may be reasonably
determined and measured by AOL in accordance with its standard methodologies and
protocols.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an Internet service provider); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (or navigation thereto) (e.g., an online service or
search and directory service) and/or marketing a broad selection of products
and/or services across multiple interactive commerce categories; (iii) a
persistent desktop client; or (iv) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time or "instant" online messages (whether by telephone, computer
or other means).
LICENSED CONTENT. All Content offered through the ICP Internet Site pursuant to
this Agreement or otherwise provided by or on behalf of ICP or its agents in
connection herewith (e.g., offline promotional content or online Content for
distribution through the AOL Network), including without limitation all ICP
Programming.
NETSCAPE NETCENTER. Netscape Communications Corporation's primary Internet-based
Interactive Site marketed under the "Netscape Netcenter(SM)" brand, specifically
excluding (a) the AOL Service and the CompuServe Service, (b) AOL.com and
CompuServe.com, (c) any international versions of such site, (d) "ICQ," "AOL
Netfind," "AOL Instant Messenger," "AOL NetMail," "AOL Hometown," "My News,"
"Digital City," or any similar independent product or service offered by or
through such site or any other AOL Interactive Site, (e) any programming or
Content area offered by or through such site over which AOL does not exercise
complete operational control (including, without limitation, Content areas
controlled by other parties and member-created Content areas), (f) any
programming or Content area offered by or through the U.S. version of the
America Online brand service which was operated, maintained or controlled by the
former AOL Studios division (e.g., Electra), (g) any yellow pages, white pages,
classifieds or other search, directory or review services or Content offered by
or through such site or any other AOL Interactive Site, (h) any property,
feature, product or service which AOL or its affiliates may acquire subsequent
to the Effective Date and (i) any other version of an AOL or Netscape
Communications Corporation Interactive Site which is materially different from
Netscape Communications Corporation's primary Internet-based Interactive Site
marketed under the "Netscape Netcenter(TM)" brand, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded versions and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer (e.g. Custom NetCenters built specifically for third parties).
PAGE VIEW. The unit of measurement that represent the number of requests for a
page of content. A page of content is, but is not limited to, a static page such
as an HTML document or a dynamically generated page such as from a CGI script.
Pages containing framesets shall not be counted as Page Views and only the pages
within the frameset containing principle content shall be counted as Page Views.
PRIMARY SITE. The Internet site and Content, currently located at URL:http://
www.bolt.com and all related URLs, which are managed, maintained or owned by ICP
or its agents or to which ICP licenses information, content or other materials.
PRODUCT. Any product, good or service which ICP (or others acting on its behalf
or as distributors) offers, sells, provides, distributes or licenses to AOL
Members directly or indirectly through (i) the ICP Internet Site (including
through any Interactive Site linked thereto) or ICP Programming, (ii) any other
electronic means directed at AOL Members (e.g., e-mail offers), or (iii) an
"offline" means (e.g., toll-free number) for receiving orders related to
specific offers within the ICP Internet Site or ICP Programming requiring
purchasers to reference a specific promotional identifier or tracking code,
including, without limitation, products sold through surcharged downloads (to
the extent expressly permitted hereunder).
TERM. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of this Agreement.
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EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
CONTENT. ICP represents and warrants that all Content contained within the ICP
Internet Site and ICP Programming and all Licensed Content (i) does and will
conform to AOL's applicable Terms of Service, the terms of this Agreement and
any other standard, written policy of AOL and any applicable AOL Property
(including without limitation AOL's kids policies to the extent applicable),
provided that ICP has been provided with written notice of all such standards
and policies, (ii) does not and will not infringe on or violate any copyright,
trademark, U.S. patent, rights of publicity, moral rights or any other third
party right, including without limitation, any music performance or other music
related rights, and (iii) does not and will not contain any Content which
violates any applicable law or regulation ((i), (ii) and (iii) collectively, the
"Rules"). Notwithstanding the foregoing or any other term hereof, ICP makes no
representation or warranty with respect to Content that has been provided by
AOL, an AOL affiliate, an AOL member or any other end-user of ICP's Interactive
Services. In the event that AOL notifies ICP in writing that any such Content,
as reasonably determined by AOL, does not comply or adhere to the Rules, then
ICP shall use its best efforts to block access by AOL Members to such Content.
In the event that ICP cannot, through its best efforts, block access by AOL
Members to such Content in question, then ICP shall provide AOL prompt written
notice of such fact. AOL may then, at its option, either (i) restrict access
from the AOL Network to the Content in question using technology available to
AOL or (ii) in the event access cannot be restricted, direct ICP to remove any
such Content. ICP will cooperate with AOL's reasonable requests to the extent
AOL elects to implement any such access restrictions.
AOL NETWORK DISTRIBUTION. ICP shall not authorize or permit any third party to
distribute any Content of ICP through the AOL Network absent AOL's prior written
approval. The distribution, placements and/or promotions described in this
Agreement or otherwise provided to ICP by AOL shall be used by ICP solely for
its own benefit, will link to and promote solely the Licensed Content within the
ICP Internet Site or ICP Programming expressly described on Exhibit A and will
not be resold, traded, exchanged, bartered, brokered or otherwise offered or
transferred to any third party or contain any branding other than ICP's
branding. Further, the Content of all such distribution, placements and
promotions shall be subject to AOL's policies relating to advertising and
promotion, including those relating to AOL's exclusivity commitments and other
contractual preferences to third parties.
CHANGES TO AOL PROPERTIES. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOL Network at any time, including without limitation, by adding or deleting
channels, subchannels and/or screens and/or by outsourcing to a third party the
programming responsibility for any channel, subchannel, screen or portion
thereof. If such redesign or modification substantially modifies the nature of
the distribution provided under this Agreement in a material adverse fashion, or
if AOL is otherwise unable to deliver any particular Promotion, AOL will work
with ICP in good faith to provide ICP, as its sole remedy, with comparable
distribution.
CONTESTS. ICP shall ensure that any contest, sweepstakes or similar promotion
conducted or promoted through the ICP Internet Site and/or ICP Programming (a
"Contest") complies with all applicable laws and regulations. ICP shall provide
AOL with (i) at least thirty (30) days prior written notice of any Contest and
(ii) upon AOL's request, an opinion from ICP's counsel confirming that the
Contest complies with all applicable federal, state and local laws and
regulations.
DISCLAIMERS. ICP agrees to include within the ICP Internet and ICP Programming a
disclaimer (the specific form and substance to be mutually agreed upon by the
Parties) indicating that all Content (including any products and services) is
provided solely by ICP and not AOL, and any transactions are solely between ICP
and AOL Members using or purchasing such Content and that neither ICP nor AOL is
not responsible for any loss, expense or damage arising out of the Licensed
Content or services provided through the ICP Internet Site or ICP Programming
(e.g., "In no event shall AOL nor, ICP or any of its their agents, employees,
representatives or affiliates be in any respect legally liable to you or any
third party in connection with any information or services contained herein and
neither AOL nor ICP make any warranty or guaranty as to the accuracy,
completeness, correctness, timeliness, or usefulness of any of the information
contained herein"). ICP shall not in any manner state or imply that AOL
recommends or endorses ICP or its Content. In addition, the parties will agree
on an acceptable user policy that will extend the full benefit of the safe
harbor provisions of the Communications Decency Act and the Digital Millennium
Copyright Act to both Parties.
INSURANCE. At all times during the Term, ICP shall maintain an insurance policy
or policies reasonably satisfactory to AOL and adequate in amount to insure ICP
against all liability associated with the Licensed Content. ICP shall include
AOL as a named insured party on such policy or policies. ICP shall provide AOL
with a copy of such policy or policies within thirty (30) days after the
Effective Date, failing which, in addition to all other available remedies, AOL
shall be entitled to delay the launch of the Licensed Content on the AOL Network
(and reduce AOL's promotional and Impressions obligations proportionately). ICP
shall promptly notify AOL of any material change in such policy or policies.
REWARDS PROGRAMS. ICP shall not offer, provide, implement or otherwise make
available on the ICP Internet Site or ICP Programming any promotional programs
or plans that are intended to provide customers with rewards or benefits in
exchange for, or on account of, their past or continued loyalty to, or patronage
or purchase of, the products or services of ICP or any third party (e.g., a
promotional program similar to a "frequent flier" program), unless such
promotional program or plan is provided exclusively through AOL's "AOL Rewards"
program, accessible on the AOL Service at Keyword: "AOL Rewards."
NAVIGATION. In cases where an AOL Member performs a search for ICP through any
search or navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., promotions, Keyword Search Terms, navigation bars or any
other promotions or navigational tools), AOL shall have the right to direct such
AOL Member to the ICP Internet Site, or any other ICP Interactive Site
determined by AOL in its reasonable discretion. ICP shall ensure that navigation
back to the AOL Network from the ICP Internet Site (and from any other ICP
Interactive Site linked to from the AOL Network), whether through a particular
pointer or link, the "back" button on an Internet browser, the closing of an
active window, or any other return mechanism, shall not be interrupted by ICP
through the use of any intermediate screen or other device not specifically
requested by the user, including without limitation through the use of any html
pop-up window or any other similar device.
AOL LOOK AND FEEL. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the ICP Internet Site or ICP Programming (the "AOL FRAMES"). AOL may, at
its discretion, incorporate navigational icons, links and pointers or other
Content into such AOL Frames.
BOLT LOOK AND FEEL. AOL acknowledges and agrees that ICP shall own all right,
title and interest in and to the Bolt Look and Feel. AOL hereby acknowledges
that Bolt is the owner of the right to use the trademark BOLT and such other
marks, names and logos as relate to the products and services offered by Bolt in
connection with the Primary Site. AOL agrees that all goodwill accruing to the
use of such marks and Bolt Look and Feel in connection with the ICP Internet
Site will accrue to Bolt. AOL agrees that nothing contained herein shall
constitute an assignment of the right to use such marks or the Bolt Look and
Feel other than in accordance with this Agreement. AOL agrees that it will not
contest Bolt's ownership in such marks or in the Bolt Look and Feel, or
otherwise challenge the validity of such rights. AOL acknowledges that, in order
to protect Bolt's valuable property rights in such marks and the Bolt Look and
Feel, Bolt must control the quality and nature of the use thereof by AOL. AOL
agrees to use such marks and Bolt Look and Feel in accordance with such
standards and subject to such notice provisions as Bolt may provide to AOL from
time to time.
OPERATIONS. AOL shall be entitled to require reasonable changes to the ICP
Internet Site and ICP Programming to the extent such site will, in AOL's good
faith judgment, adversely affect operations of the AOL Network.
CLASSIFIEDS, AUCTIONS AND CLUBS. ICP shall not implement or promote any
classifieds listing features through ICP Programming or ICP Internet Site
without AOL's prior written approval. Such approval may be conditioned upon,
among other things, ICP's conformance with any then-applicable service-wide
technical or other standards related to online classifieds. ICP shall not
conduct any merchandising through the ICP Internet Site or ICP Programming
through auctions, clubs or any method other than a direct sales format without
AOL's prior written consent.
MESSAGE BOARDS; CHAT ROOMS AND COMPARABLE VEHICLES. Any Content submitted by ICP
or its agents within message boards, chat rooms or any comparable vehicles will
be subject to the license grant relating to submissions to "public areas" set
forth in the AOL Terms of Service. ICP acknowledges that it has no rights or
interest in AOL Member submissions to message boards, chat rooms or any other
vehicles through which AOL Members may make submissions within the AOL Network.
ICP will refrain from editing, deleting or altering, without AOL's prior
approval, any opinion expressed or submission made by an AOL Member within ICP
Programming except in cases where ICP has a good faith belief that the Content
in question violates an applicable law, regulation, third party right or the
applicable AOL Property's Terms of Service. AOL grants ICP a worldwide license
to use, copy, edit, display, transmit, create derivative works
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from and distribute Content submitted by AOL Members or other users of the ICP
Internet Site solely in connection with the production and distribution of ICP
Programming.
DUTY TO INFORM. ICP shall promptly inform AOL of any information related to the
ICP Internet Site, ICP Programming or the Licensed Content which could
reasonably lead to a claim, demand or liability of or against AOL and/or its
Affiliates by any third party.
RESPONSE TO QUESTIONS/COMMENTS; CUSTOMER SERVICE. ICP shall respond promptly and
professionally in a commercially reasonable manner to questions, comments,
complaints and other reasonable requests regarding the ICP Internet Site, ICP
Programming or the Licensed Content by AOL Members or on request by AOL, and
shall cooperate and assist AOL in promptly answering the same. ICP shall have
sole responsibility for customer service (including, without limitation, order
processing, billing, shipping, etc.) and AOL shall have no responsibility with
respect thereto. ICP shall comply with all applicable requirements of any
federal, state or local consumer protection or disclosure law.
STATEMENTS THROUGH AOL NETWORK. ICP shall not make, publish, or otherwise
communicate through the AOL Network any deleterious remarks concerning AOL or
its Affiliates, directors, officers, employees, or agents (including, without
limitation, AOL's business projects, business capabilities, performance of
duties and services, or financial position) which remarks are based on the
relationship established by this Agreement or information exchanged hereunder.
This section is not intended to limit good faith editorial statements made by
ICP based upon publicly available information, or information developed by ICP
independent of its relationship with AOL and its employees and agents.
PRODUCTION WORK. In the event that ICP requests any AOL production assistance,
ICP shall work with AOL to develop detailed production plans for the requested
production assistance (the "PRODUCTION PLAN"). Following receipt of the final
Production Plan, AOL shall notify ICP of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for the
requested production work and (iii) the estimated development schedule for such
work. To the extent the Parties reach agreement regarding implementation of
agreed-upon Production Plan, such agreement shall be reflected in a separate
work order signed by the Parties. All fees to be paid to AOL for any such
production work shall be paid in advance. To the extent ICP elects to retain a
third party provider to perform any such production work, work produced by such
third party provider must generally conform to AOL's production standards
available at Keyword "Styleguide."The specific production resources which AOL
allocates to any production work to be performed on behalf of ICP shall be as
determined by AOL in its sole discretion. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of the Promotions, ICP Programming and the ICP Internet Site
("Routine Services"), ICP will pay the then-standard fees charged by AOL for
such Routine Services.
PRODUCTION TOOLS. AOL shall determine in its sole discretion, which of its
proprietary publishing tools (each a "Tool") shall be made available to ICP as
may be necessary to develop and implement the Licensed Content during the Term.
ICP shall be granted a nonexclusive license during the Term to use any such
Tool, which license shall be subject to: (i) ICP's compliance with all rules and
regulations relating to use of the Tools, as published from time to time by AOL,
(ii) AOL's right to withdraw or modify such license at any time, and (iii) ICP's
express recognition that AOL provides all Tools on an "as is" basis, without
warranties of any kind.
TRAINING AND SUPPORT. AOL shall make available to ICP standard AOL training and
support programs necessary to produce any AOL areas hereunder. ICP can select
its training and support program from the options then offered by AOL. Such
training and support package as will be necessary to fulfill ICP's obligations
hereunder shall be provided free of charge by AOL, except that ICP will pay
travel and lodging costs associated with its participation in any AOL training
programs (including AOL's travel and lodging costs when training is conducted at
ICP's offices).
LAUNCH DATE. In the event that any terms contained herein relate to or depend on
the launch date of the ICP Internet Site or other property contemplated by this
Agreement, which launch date is later than the Effective Date, then it is the
intention of the Parties to record such launch date in a written instrument
signed by both Parties promptly following such launch date; provided that, in
the absence of such a written instrument, the launch date shall be as reasonably
determined by AOL based on the information available to AOL.
KEYWORDS. Any Keyword Search Terms to be directed to the ICP Internet Site shall
be (i) subject to availability for use by ICP (provided that keyword "Bolt"
shall link to the ICP Programming and/or ICP Internet Site) and (ii) limited to
the combination of the Keyword(TM) search modifier combined with a registered
trademark of ICP. AOL reserves the right to revoke at any time ICP's use of any
Keyword Search Terms which do not incorporate registered trademarks of ICP. ICP
acknowledges that its utilization of a Keyword Search Term will not create in
it, nor will it represent it has, any right, title or interest in or to such
Keyword Search Term, other than the right, title and interest ICP holds in ICP's
registered trademark independent of the Keyword Search Term. Without limiting
the generality of the foregoing, ICP will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword Search Term;
or (b) use the Keyword Search Term, except for the purposes expressly required
or permitted under this Agreement. This Section shall survive the completion,
expiration, termination or cancellation of this Agreement.
ACCOUNTS. To the extent AOL has granted ICP any accounts on the AOL Service, ICP
will be responsible for the actions taken under or through its accounts, which
actions are subject to AOL's applicable Terms of Service and for any surcharges,
including, without limitation, all premium charges, transaction charges, and any
applicable communication surcharges incurred by any account issued to ICP, but
ICP will not be liable for charges incurred by any account relating to AOL's
standard monthly usage fees and standard hourly charges, which charges AOL will
bear. Upon the termination of this Agreement, all accounts, related screen names
and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any such account.
II. TRADEMARKS
TRADEMARK LICENSE. In designing and implementing any marketing, advertising, or
other promotional materials (expressly excluding Press Releases) related to this
Agreement and/or referencing the other Party and/or its trade names, trademarks
and service marks (the "PROMOTIONAL MATERIALS") and subject to the other
provisions contained herein, ICP shall be entitled to use the following trade
names, trademarks and service marks of AOL: the "America Online(R)" brand
service, "AOL(TM)" service/software and AOL's triangle logo and, in connection
therewith, ICP shall comply with the AOL styleguide available at keyword: "style
guide"; and AOL and its Affiliates shall be entitled to use the trade names,
trademarks and service marks of ICP (collectively, together with the AOL marks
listed above, the "Marks"); provided that each Party: (i) does not create a
unitary composite mark involving a Mark of the other Party without the prior
written approval of such other Party and (ii) displays symbols and notices
clearly and sufficiently indicating the trademark status and ownership of the
other Party's Marks in accordance with applicable trademark law and practice.
This Section shall survive the completion, expiration, termination or
cancellation of this Agreement.
RIGHTS. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
QUALITY STANDARDS. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
PROMOTIONAL MATERIALS. Each Party will submit to the other Party, for its prior
written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after initial public announcement
of the business relationship between the Parties in accordance with the approval
and other requirements contained herein, either Party's subsequent factual
reference in Promotional Materials to the existence of a business relationship
between AOL and ICP, including, without limitation, the availability of the
Licensed Content through the AOL Network, or use of screen shots relating to the
distribution under this Agreement (so long as the AOL Network is clearly
identified as the source of such screen shots) for promotional purposes shall
not require the approval of the other Party. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the distribution of the Licensed Content through the AOL Network and reused for
such purpose until such approval is withdrawn with reasonable prior notice. In
the event such approval is withdrawn, existing inventories of Promotional
Materials may be depleted.
INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
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III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) such Party's
Promotional Materials will neither infringe on any copyright, U.S. patent or any
other third party right nor violate any applicable law or regulation and (v)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
Party, other than to its employees, or to its other agents who must have access
to such Confidential Information for such Party to perform its obligations
hereunder, who will each agree to comply with this section. Notwithstanding the
foregoing, either Party may issue a press release or other disclosure containing
Confidential Information without the consent of the other Party, to the extent
such disclosure is required by law, rule, regulation or government or court
order. In such event, the disclosing Party will provide at least five (5)
business days prior written notice of such proposed disclosure to the other
Party. Further, in the event such disclosure is required of either Party under
the laws, rules or regulations of the Securities and Exchange Commission or any
other applicable governing body, such Party will (i) redact mutually agreed-upon
portions of this Agreement to the fullest extent permitted under applicable
laws, rules and regulations and (ii) submit a request to such governing body
that such portions and other provisions of this Agreement receive confidential
treatment under the laws, rules and regulations of the Securities and Exchange
Commission or otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any other applicable
governing body.
V. RELATIONSHIP WITH AOL MEMBERS
SOLICITATION OF SUBSCRIBERS. (a) During the term of this Agreement and for a two
year period thereafter, ICP will not use the AOL Network (including, without
limitation, the e-mail network contained therein) to solicit AOL Members on
behalf of another Interactive Service. More generally, ICP will not send
unsolicited, commercial e-mail (i.e., "spam") or other online communications
through or into AOL's products or services, absent a Prior Business
Relationship. For purposes of this Agreement, a "Prior Business Relationship"
will mean that the AOL Member to whom commercial e-mail or other online
communication is being sent has voluntarily either (i) engaged in a transaction
with ICP or (ii) provided information to ICP through a contest, registration, or
other communication, which included clear notice to the AOL Member that the
information provided could result in commercial e-mail or other online
communications being sent to that AOL Member by ICP or its agents. Any
commercial e-mail or other online communications to AOL Members which are
otherwise permitted hereunder will (x) include a prominent and easy means to
"opt-out" of receiving any future commercial e-mail communications from ICP and
(y) shall also be subject to AOL's then-standard restrictions on distribution of
bulk e-mail (e.g., related to the time and manner in which such e-mail can be
distributed through or into the AOL product or service in question).
(b) ICP shall ensure that its collection, use and disclosure of information
obtained from AOL Members under this Agreement ("MEMBER INFORMATION") complies
with (i) all applicable laws and regulations and (ii) AOL's standard privacy
policies, available on the AOL Service at the keyword term "Privacy" (or, in the
case of the ICP Internet Site, ICP's standard privacy policies so long as such
policies are prominently published on the site and provide adequate notice,
disclosure and choice to users regarding ICP's collection, use and disclosure of
user information). ICP will not disclose Member Information collected hereunder
to any third party in a manner that identifies AOL Members as end users of an
AOL product or service or use Member Information collected under this Agreement
to market another Interactive Service.
EMAIL NEWSLETTERS. Any email newsletters sent to AOL Members by ICP or its
agents shall (i) be subject to AOL's policies on use of the email functionality,
including but not limited to AOL's policy on unsolicited bulk email, (ii) be
sent only to AOL Members requesting to receive such newsletters, (iii) not
contain Content which violates AOL's Terms of Service, and (iv) not contain any
advertisements, marketing or promotion for any other Interactive Service.
AOL MEMBER COMMUNICATIONS. To the extent ICP is otherwise permitted to send
communications to AOL Members (in accordance with the other requirements
contained herein): in any such communications to AOL Members on or off the ICP
Internet Site (including, without limitation, e-mail solicitations), ICP will
limit the subject matter of such communications to those categories of products,
services and/or content that are specifically contemplated by this Agreement and
will not encourage AOL Members to take any action inconsistent with the scope
and purpose of this Agreement, including without limitation, the following
actions: (i) using an Interactive Site other than the ICP Internet Site for the
purchase of Products, (ii) using Content other than the Licensed Content; (iii)
bookmarking of Interactive Sites; or (iv) changing the default home page on the
AOL browser. Additionally, with respect to such AOL Member communications, in
the event that ICP encourages an AOL Member to purchase products through such
communications, ICP shall ensure that (a) the AOL Network is expressly promoted
as the primary means through which the AOL Member can access the ICP Internet
Site (including without limitation by stating the applicable Keyword Search Term
and including direct links to specific offers within the ICP Internet Site) and
(b) any link to the ICP Internet Site will link to a page which indicates to the
AOL Member that such user is in a site which is affiliated with the AOL Network.
VI. TREATMENT OF CLAIMS
LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE AOL
NETWORK OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY,
"DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE TO THE OTHER
PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE
SUBJECT TO INDEMNIFICATION BELOW. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY"
SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE
AGGREGATE AMOUNTS PAYABLE HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE
TO SUCH LIABILITY OCCURRED; PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE
PROVISIONS OF THIS AGREEMENT.
NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
THE AOL TOOLS OR, ANY AOL PUBLISHING TOOLS, THE CONTENT, THE ICP INTERNET SITE,
THE PRIMARY SITE OR ANY ICP INTERACTIVE SITE INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
THE PROFITABILITY OF AOL NETWORK OR THE ICP INTERNET SITE.
INDEMNITY. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("LIABILITIES"), resulting from the indemnifying Party's material breach or
alleged breach of any duty, representation, or warranty of this Agreement. In
addition, ICP will defend, indemnify, save and hold harmless AOL and AOL's
officers, directors, agents, affiliates, distributors, franchisees and employees
from any and all Liabilities arising out of or in any way related to the
Licensed Content except to the extent that such Licensed Content has been
provided by an AOL Member in which case this indemnity shall not apply.
If a Party entitled to indemnification hereunder (the "INDEMNIFIED PARTY")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "Action"), the Indemnified Party
shall give the other Party (the "INDEMNIFYING PARTY") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party shall have a period of ten (10) days
after delivery of such notice to respond. If the Indemnifying Party elects to
defend the Action or does not respond within the requisite ten (10) day period,
the Indemnifying Party shall be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party. The
Indemnified Party shall cooperate, at the expense of the Indemnifying Party,
with the Indemnifying Party and its counsel in the defense and the Indemnified
Party shall
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have the right to participate fully, at its own expense, in the defense of such
Action. If the Indemnifying Party responds within the required ten (10) day
period and elects not to defend such Action, the Indemnified Party shall be
free, without prejudice to any of the Indemnified Party's rights hereunder, to
compromise or defend (and control the defense of) such Action. In such case, the
Indemnifying Party shall cooperate, at its own expense, with the Indemnified
Party and its counsel in the defense against such Action and the Indemnifying
Party shall have the right to participate fully, at its own expense, in the
defense of such Action. Any compromise or settlement of an Action shall require
the prior written consent of both Parties hereunder, such consent not to be
unreasonably withheld or delayed.
ACKNOWLEDGMENT. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable efforts
to promptly resolve any claim, dispute, claim, controversy or disagreement (each
a "Dispute") between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the transactions
contemplated hereby. If the Parties cannot resolve the Dispute within such
timeframe, the Dispute shall be submitted to the Management Committee for
resolution. For ten (10) days after the Dispute was submitted to the Management
Committee, the Management Committee shall have the exclusive right to resolve
such Dispute; provided further that the Management Committee shall have the
final and exclusive right to resolve Disputes arising from any provision of this
Agreement which expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms. If the Management Committee is unable to amicably
resolve the Dispute during the ten (10) day period, then the Management
Committee will consider in good faith the possibility of retaining a third party
mediator to facilitate resolution of the Dispute. In the event the Management
Committee elects not to retain a mediator, the Dispute will be subject to the
resolution mechanisms described below. "Management Committee" shall mean a
committee made up of a senior executive from each of the Parties for the purpose
of resolving Disputes under this Section and generally overseeing the
relationship between the Parties contemplated by this Agreement. Neither Party
shall seek, nor shall be entitled to seek, binding outside resolution of the
Dispute unless and until the Parties have been unable to amicably resolve the
dispute as set forth in this paragraph (a) and then, only in compliance with the
procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights, including
but not limited to intellectual property and confidentiality, and (ii) any
provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms (which shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
in paragraph (a)), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("COMMERCIAL RULES") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("COMPLEX
PROCEDURES"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("DEMAND"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
name an arbitrator within ten (10) days after the delivery of the Demand. The
two arbitrators named by the Parties may have prior relationships with the
naming Party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, shall be a neutral
participant, with no prior working relationship with either Party. If the two
arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
toto. The arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages only.
Any award by the arbitrators shall be accompanied by a written opinion setting
forth the findings of fact and conclusions of law relied upon in reaching the
decision. The award rendered by the arbitrators shall be final, binding and
non-appealable, and judgment upon such award may be entered by any court of
competent jurisdiction. The Parties agree that the existence, conduct and
content of any arbitration shall be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of witnesses
and all other expenses and costs in connection with the presentation of such
Party's case (collectively, "Attorneys' Fees"). The remaining costs of the
arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award Attorneys'
Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively,
"Non-Arbitration Claims") shall be brought in a court of competent jurisdiction
in the Commonwealth of Virginia. Each Party irrevocably consents to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts situated in the Commonwealth of Virginia, over any and all
Non-Arbitration Claims and any and all actions to enforce such claims or to
recover damages or other relief in connection with such claims or to enforce a
judgment rendered in an arbitration proceeding.
VIII. MISCELLANEOUS
AUDITING RIGHTS. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("RECORDS"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, AOL shall have the right, subject to strict
confidentiality restrictions, at its expense, to conduct a reasonable and
necessary copying and inspection of portions of the Records of ICP that are
directly related to amounts payable to AOL pursuant to this Agreement, which
right may, at AOL's option, be exercised by directing an independent certified
public accounting firm to conduct such inspection. For the sole purpose of
ensuring compliance with this Agreement, ICP shall have the right, at its
expense, to direct an independent certified public accounting firm subject to
strict confidentiality restrictions to conduct a reasonable and necessary
copying and inspection of portions of the Records of AOL that are directly
related to amounts payable to ICP pursuant to this Agreement. Any such audit may
be conducted after twenty (20) business days prior written notice, subject to
the following. Such audits shall not be made more frequently than once every
twelve months. No such audit of AOL shall occur during the period beginning on
June 1 and ending October 1. In lieu of providing access to its Records as
described above, either Party shall be entitled to provide the other Party with
a report from an independent certified public accounting firm confirming the
information to be derived from such Records.
EXCUSE. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
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<PAGE> 18
delivered by electronic mail on the AOL Network (to screenname
"[email protected]" in the case of AOL) or by confirmed facsimile; (ii) on the
delivery date if delivered personally to the Party to whom the same is directed;
(iii) one business day after deposit with a commercial overnight carrier, with
written verification of receipt; or (iv) five business days after the mailing
date, whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs [*] and the
Deputy General Counsel [*], each at the address of AOL set forth in the first
paragraph of this Agreement. In the case of ICP, except as otherwise specified
herein, the notice address shall be the address for ICP set forth in the first
paragraph of this Agreement, with the other relevant notice information,
including the recipient for notice and, as applicable, such recipient's fax
number or AOL e-mail address, to be as reasonably identified by AOL.
NO WAIVER. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
RETURN OF INFORMATION. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential information,
documents, manuals and other materials specified by the other Party.
SURVIVAL. Sections IV, V, VI, VII and VIII of this Exhibit C, shall survive the
completion, expiration, termination or cancellation of this Agreement. In
addition, all payment terms of this Agreement and any payments due and payable
and any provision that expressly states that it shall survive or which, by its
nature, must survive the completion, expiration, termination or cancellation of
this Agreement, shall survive the completion, expiration, termination or
cancellation of this Agreement. For the avoidance of doubt all payments that are
not due and payable shall expire and be null, void and unenforceable upon the
expiration or termination hereof.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
AMENDMENT. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
FURTHER ASSURANCES. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.
ASSIGNMENT. ICP shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL.
Assumption of this Agreement by any successor to ICP (including, without
limitation, by way of merger, consolidation or sale of all or substantially all
of ICP's stock or assets) shall be subject to AOL's prior written approval.
Further, in the event of (i) any Change of Control of ICP resulting in control
of ICP by an Interactive Service or an entity that controls, is controlled by or
is under common control with an Interactive Service, or (ii) any Change of
Control of AOL, AOL shall have the right to terminate this Agreement upon
written notice to ICP. In addition, AOL shall not [*] this Agreement to an ICP
Competitor without the prior written consent of ICP. Subject to the foregoing,
this Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the Parties hereto and their respective successors and assigns.
SUBCONTRACTORS. To the extent ICP desires to utilize consultants or
subcontractors to perform a material portion of its obligations under this
Agreement, utilization of such consultants and/or subcontractors shall be
subject to AOL's prior written approval and ICP shall provide AOL with direct
contact information for the employees of such consultants and/or subcontractors
who are responsible for performing such obligations, which employees shall be
available during business hours for consultation with AOL. ICP shall be
responsible for ensuring that all consultants and subcontractors comply with
this Agreement and ICP shall be liable for any breaches of this Agreement caused
by any consultant or subcontractor.
CONSTRUCTION; SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
REMEDIES. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
APPLICABLE LAW. This Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of the Commonwealth of Virginia except
for its conflicts of laws principles.
EXPORT CONTROLS. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
HEADINGS. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document. Signatures sent by facsimile shall be deemed original
signatures.
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EXHIBIT D
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS
Pursuant to Section 3.3 of the Anchor Tenant Agreement between Bolt Media, Inc.
("ICP") and America Online, Inc. ("AOL"), dated as of November 16, 1999 (the
"Agreement"), the following report is delivered to AOL for the period beginning
_____________ and ending __________ (the "Period"):
I. PROMOTIONAL COMMITMENTS
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Period:
<TABLE>
<CAPTION>
TYPE OF PROMOTION DATE(S) OF DURATION/CIRCULATION OF RELEVANT CONTRACT
PROMOTION PROMOTION SECTION
----------------- ---------- ----------------------- -----------------
<S> <C> <C> <C>
1.
2.
3.
</TABLE>
IN WITNESS WHEREOF, this Certificate has been executed this ___ day of
___________, 199_.
___________________________________
By: _______________________________
Print Name:________________________
Title: ____________________________
Date: _____________________________
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EXHIBIT E
TECHNICAL OPERATING STANDARDS
1. ICP Internet Site Infrastructure. ICP will be responsible for all
communications, hosting and connectivity costs and expenses associated
with the ICP Internet Site. ICP will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet
traffic demands on the ICP Internet Site from the AOL Network. ICP will
design and implement the network between the AOL Service and ICP
Internet Site such that (i) no single component failure will have a
materially adverse impact on AOL Members seeking to reach the ICP
Internet Site from the AOL Network and (ii) no single line under
material control by ICP will run at more than 70% average utilization
for a 5-minute peak in a daily period. In this regard, ICP will provide
AOL, upon request, with a detailed network diagram regarding the
architecture and network infrastructure supporting the ICP Internet
Site. In the event that ICP elects to create a custom version of the
ICP Internet Site in order to comply with the terms of this Agreement,
ICP will bear responsibility for all aspects of the implementation,
management and cost of such customized site.
2. Optimization; Speed. ICP will use commercially reasonable efforts to
ensure that: (a) the functionality and features within the ICP Internet
Site are optimized for the client software then in use by AOL Members;
and (b) the ICP Internet Site is designed and populated in a manner
that minimizes delays when AOL Members attempt to access such site. At
a minimum, ICP will ensure that the ICP Internet Site's data transfers
initiate within fewer than fifteen (15) seconds on average. Prior to
commercial launch of any material promotions described herein, ICP will
permit AOL to conduct performance and load testing of the ICP Internet
Site (in person or through remote communications), with such commercial
launch not to commence until such time as AOL is reasonably satisfied
with the results of any such testing.
3. User Interface. ICP will maintain a graphical user interface within the
ICP Internet Site that is competitive in all material respects with
interfaces of other similar sites based on similar form technology. AOL
reserves the right to review and approve the user interface and site
design prior to launch of the Promotions and to conduct focus group
testing to assess compliance with respect to such consultation and with
respect to ICP's compliance with the preceding sentence.
4. Technical Problems. ICP agrees to use commercially reasonable efforts
to address material technical problems (over which ICP exercises
control) affecting use by AOL Members of the ICP Internet Site (an "ICP
Technical Problem") promptly following notice thereof. In the event
that ICP is unable to promptly resolve an ICP Technical Problem
following notice thereof from AOL (including, without limitation,
infrastructure deficiencies producing user delays), AOL will have the
right to regulate the promotions it provides to ICP hereunder until
such time as ICP corrects the ICP Technical Problem at issue.
5. Monitoring. ICP will ensure that the performance and availability of
the ICP Internet Site is monitored on a continuous (24 X 7) basis. ICP
will provide AOL with contact information (including e-mail, phone,
pager and fax information, as applicable, for both during and after
business hours) for ICP's principal business and technical
representatives, for use in cases when issues or problems arise with
respect to the ICP Internet Site.
6. Telecommunications. Where applicable the ICP will utilize encryption
methodology to secure data communications between the Parties' data
centers. The network between the Parties will be configured such that
no single component failure will significantly impact AOL Users. The
network will be sized such that no single line over which the ICP has
material control runs at more than 70% average utilization for a
5-minute peak in a daily period.
7. Security. ICP will utilize Internet standard encryption technologies
(e.g., Secure Socket Layer - SSL) to provide a secure environment for
conducting transactions and/or transferring private member information
(e.g. credit card numbers, banking/financial information, and member
address information) to and from the ICP Internet Site. ICP will
facilitate periodic reviews of the ICP Internet Site by AOL in order to
evaluate the security risks of such site. ICP will promptly remedy any
security risks or breaches of security as may be identified by AOL's
Operations Security team.
8. Technical Performance.
i. ICP will design the ICP Internet Site to support the
AOL-Client embedded versions of the Microsoft Internet
Explorer 3.XX and 4.XX browsers (Windows and Macintosh), the
Netscape Browser 4.XX and make commercially reasonable efforts
to support all other AOL browsers listed at:
"http://webmaster.info.aol.com."
ii. To the extent ICP creates customized pages on the ICP Internet
Site for AOL Members, ICP develop and employ a methodology to
detect AOL Members (e.g., examine the HTTP User-Agent field in
order to identify the "AOL Member-Agents" listed at:
http://webmaster. info.aol.com and referenced under the
heading "Browser Detection."
iii. ICP will periodically review the technical information made
available by AOL at http://webmaster.info.aol.com.
iv. ICP will design its site to support HTTP 1.0 or later protocol
as defined in RFC 1945 and to adhere to AOL's parameters for
refreshing or preventing the caching of information in AOL's
proxy system as outlined in the document provided at the
following URL: http://webmaster.info.aol.com. ICP is
responsible for the manipulation of these parameters in web
based objects so as allow them to be cached or not cached as
outlined in RFC 1945.
v. Prior to releasing material, new functionality or features
through the ICP Internet Site ("NEW FUNCTIONALITY"), ICP will
use commercially reasonable efforts to either (i) test the New
Functionality to confirm its compatibility with AOL Service
client software and (ii) provide AOL with written notice of
the New Functionality so that AOL can perform tests of the New
Functionality to confirm its compatibility with the AOL
Service client software. Should any new material, new
functionality or features through the ICP Internet Site be
released without notification to AOL, AOL will not be
responsible for any adverse member experience until such time
that compatibility tests can be performed and the new
material, functionality or features qualified for the AOL
Service.
9. AOL Internet Services Partner Support. AOL will provide ICP with access
to the standard online resources, standards and guidelines
documentation, technical phone support, monitoring and after-hours
assistance that AOL makes generally available to similarly situated
web-based partners. AOL support will not, in any case, be involved with
content creation on behalf of ICP or support for any technologies,
databases, software or other applications which are not supported by
AOL or are related to any ICP
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area other than the ICP Internet Site. Support to be provided by AOL is
contingent on ICP providing to AOL demo account information (where
applicable), a detailed description of the ICP Internet Site's
software, hardware and network architecture and access to the ICP
Internet Site for purposes of such performance and the coordination
load testing as AOL elects to conduct.
10. ICP Programming. The terms and conditions of this Exhibit applicable to
the ICP Internet Site shall apply equally to any ICP Programming that
is (a) programmed in HTML or (b) web-based.
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EXHIBIT F
KEYWORD GUIDELINES
PRINT/GRAPHIC
- - Preferred listing: (AOL Logo appears) America Online Keyword: Bolt
America Online Keyword: Bolt
- - If necessary, due to space constraints, listing may (pending approval)
appear as follows:
AOL KEYWORD: BOLT
- - Every effort should be made to have 'America Online' spelled out
- - Capitalization - listing should appear in initial caps only
Note: When America Online is abbreviated to AOL - AOL must appear in
all caps. K of Keyword must always be capitalized
- - Font, Font style and Size must all be consistent
- - Listing size must be of equal prominence to that of any/all other URLs
featured
BROADCAST/RADIO
- - America Online Keyword must be orally announced in its entirety (even
if an accompanying graphic is set with AOL versus America Online)
Example voiceover would read:
"For more information, please visit America Online Keyword: Bolt"
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EXHIBIT G
EXHIBIT G-1: SHOPPING CHANNEL AGREEMENT
DESCRIPTION OF PRODUCTS:
The only categories of Products to be sold through the Merchant Site are as
listed below:
Product List:
Bags & Packs
Get Groovy
Halloween
Music Storage
accessories
all bags & packs
all electronics
cosmetics
girls' clothes
handbags
hats
inline skating gear
jewelry
lights & lamps
logo t-shirts
logo t-shirts
music storage
music stuff
other cool stuff
other cool stuff
outerwear
outerwear
pants & shorts
pants & shorts
personal stereos
shirts
shirts
shoes
shoes
skateboard gear
skirts & dresses
sweaters & sweats
sweaters & sweats
watches
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DESCRIPTION OF SPECIFIC PROMOTION(S):
Please check the box next to the Promotion(s) that MERCHANT is purchasing.
[ ] ANCHOR PROMOTION
Beginning on the [*] and continuing through the Term of the Agreement, MERCHANT
will become an "Anchor" in the Boys-Teens department of the Apparel commerce
center of the Shopping Channel on the AOL Service, AOL.com, the CompuServe
Service and the Netscape Netcenter. As an "Anchor" in a department, MERCHANT
will be entitled to the following:
PRINCIPAL EXPOSURE ON THE AOL SERVICE, AOL.COM, THE COMPUSERVE SERVICE AND THE
NETSCAPE NETCENTER:
- - One continuous (24/7) 143 x 245 pixels promotional space with corporate
brand or logo, product offering graphic and product offering two-line
text field on the front screen of the department named above.
ADDITIONAL PROMOTION ON THE AOL SERVICE SHOPPING CHANNEL:
- - Rotation with other anchor tenants of the relevant commerce center on
the commerce center front screen of the AOL Service on two promotional
spaces with corporate brand or logo, product offering graphic. These
promotional space rotations are reserved for the anchor tenant
merchant's of each commerce center and will be divided proportionately
among them.
- - Product listing availability through the AOL Product Search, subject to
Merchant's participation and the terms and conditions set forth on
Exhibit C Section 3.
- - Banner rotation on the AOL Product Search screen of the AOL Service.
These banner rotations will be divided proportionately among all
shopping channel merchants.
- - Up to three (3) AOL keywords for use from the AOL Service, for
registered MERCHANT trade name or trademark (subject to the other
provisions contained herein).
- - Fifteen percent (15%) discount from the then-current rate card on
purchases of additional advertising banners or buttons on the AOL
Service, AOL.com, the CompuServe Service and the Netscape Netcenter,
subject to availability for the period requested (with such purchases
to be made in accordance with the then-applicable standard Advertising
Insertion Order for the property in question). Sponsorships are not
entitled to the aforementioned discount.
- - Eligibility to participate in the following AOL shopping promotional
programs (the "Program Areas") subject to the terms and conditions set
forth on Exhibit C Section 3:
- Quick Gifts
- Standard Seasonal Catalogs or Special Event Merchandising
areas (e.g., Christmas Shop), subject to MERCHANT's
participation in AOL's Quick Checkout and AOL's Search Product
as described on Exhibit C Section 3.
- Premier-level Seasonal Catalogs or Special Event Merchandising
areas (e.g., Golf Outings), subject to MERCHANT's
participation in AOL's Quick Checkout and AOL's Search Product
as described on Exhibit C Section 3.
- Gift Reminder
- Newsletters
All additional Promotions on the AOL Service, AOL.com, the CompuServe Service,
the Netscape Netcenter or the AOL Network not specified herein will be
determined at AOL's reasonable discretion; provided that the additional,
standard Promotions to be provided to the MERCHANT within the Shopping areas on
the AOL Service, AOL.com, the CompuServe Service and the Netscape Netcenter will
be comparable in nature to the additional, standard Promotions provided to other
similarly situated MERCHANTs in the same category (i.e. anchor tenant, gold
tenant or silver tenant).
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[ ] GOLD TENANT PROMOTION
Beginning on the [*] and continuing through the Term of the Agreement, MERCHANT
will become a "Gold Tenant" in the Girls-Teens department of the Apparel
commerce center of the Shopping Channel on the AOL Service, AOL.com, the
CompuServe Service and the Netscape Netcenter. As a "Gold Tenant" in a
department, MERCHANT will be entitled to the following:
PRINCIPAL EXPOSURE ON THE AOL SERVICE, AOL.COM, THE COMPUSERVE SERVICE, AND THE
NETSCAPE NETCENTER:
- - One continuous (24/7) 143 x 30 pixels button with corporate brand or
logo on the front screen of the department named above.
ADDITIONAL PROMOTION ON THE AOL SERVICE:
- - Rotation with other gold tenants in the department on a promotional
banner with text and branded art promotion on the department front
screen. These banner rotations are reserved for the gold tenant
merchant's on the department screen and will be divided proportionately
among them.
- - Product listing availability through the AOL Product Search, subject to
Merchant's participation and the terms and conditions set forth on
Exhibit C Section 3.
- - Banner rotation on the AOL Product Search screen of the AOL Service.
These banner rotations will be divided proportionately among all
shopping channel merchants.
- - Up to three (3) AOL keywords for use from the AOL Service, for
registered MERCHANT trade name or trademark (subject to the other
provisions contained herein).
- - Fifteen percent (15%) discount from the then-current rate card on
purchases of additional advertising banners or buttons on the AOL
Service, AOL.com, the CompuServe Service, and the Netscape Netcenter,
subject to availability for the period requested (with such purchases
to be made in accordance with the then-applicable standard Advertising
Insertion Order for the property in question). Sponsorships are not
entitled to the aforementioned discount.
- - Eligibility to participate in the following AOL shopping promotional
programs (the "Program Areas") subject to the terms and conditions set
forth on Exhibit C Section 3:
- Quick Gifts
- Standard Seasonal Catalogs or Special Event Merchandising
areas (e.g., Christmas Shop), subject to MERCHANT's
participation in AOL's Quick Checkout and AOL's Search Product
as described on Exhibit C Section 3.
- Premier-level Seasonal Catalogs or Special Event Merchandising
areas (e.g., Golf Outings), subject to MERCHANT's
participation in AOL's Quick Checkout and AOL's Search Product
as described on Exhibit C Section 3.
- Gift Reminder
- Newsletters
All additional Promotions on the AOL Service, AOL.com, the CompuServe Service,
the Netscape Netcenter or the AOL Network not specified herein will be
determined at AOL's reasonable discretion; provided that the additional,
standard Promotions to be provided to the MERCHANT within the Shopping areas on
the AOL Service, AOL.com, the CompuServe Service and the Netscape Netcenter will
be comparable in nature to the additional, standard Promotions provided to other
similarly situated MERCHANTs in the same category (i.e. anchor tenant, gold
tenant or silver tenant).
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[ ] SILVER TENANT PROMOTION
Beginning on the [*] and continuing through the Term of the Agreement, MERCHANT
will become a "Silver Tenant" in the Shoes & Apparel department of the Sports &
Outdoors commerce center, the main department of the Audio Systems commerce
center and the Home Furnishings department of the Home & Garden commerce center
of the Shopping Channel on the AOL Service, AOL.com, the CompuServe Service and
the Netscape Netcenter. As a "Silver Tenant" in a department, MERCHANT will be
entitled to the following:
PRINCIPAL EXPOSURE:
- - One continuous (24/7) listing in the silver tenant area in a department
specified above on the AOL Service, AOL.com, the CompuServe Service and the
Netscape Netcenter.
- - Banner rotation on the AOL Product Search screen of the AOL Service. These
banner rotations will be divided proportionately among all shopping channel
merchants.
- - One (1) AOL keyword for use from the AOL Service, for registered MERCHANT
trade name or trademark (subject to the other provisions contained herein).
All additional Promotions on the AOL Service, AOL.com, the CompuServe Service,
the Netscape Netcenter or the AOL Network not specified herein will be
determined at AOL's reasonable discretion; provided that the additional,
standard Promotions to be provided to the MERCHANT within the Shopping areas on
the AOL Service, AOL.com, the CompuServe Service and the Netscape Netcenter will
be comparable in nature to the additional, standard Promotions provided to other
similarly situated MERCHANTs in the same category (i.e. anchor tenant, gold
tenant or silver tenant).
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EXHIBIT G-2: SHOPPING CHANNEL DEFINITIONS
ADDITIONAL MERCHANT CHANNEL. Any other online distribution channel through which
MERCHANT makes available an offering comparable in nature to the Merchant Site.
AFFILIATE. Any agent, distributor, or franchisee of AOL, or any entity in which
AOL holds at least a nineteen percent (19%) equity interest.
AOL MEMBER. Any authorized user of the AOL Service, including any sub-accounts
using the AOL Service under an authorized master account.
AOL NETWORK. (i) The AOL Service (ii) AOL.com, (iii) the CompuServe Service,
(iv) Netscape Netcenter, and (v) any other product or service owned, operated,
distributed or authorized to be distributed by or through AOL or its Affiliates
worldwide through which such party elects to offer the Merchant Site.
AOL SERVICE. The standard narrow-band U.S. America Online(R) brand online
service.
AOL USER. Any user of the AOL Service, AOL.com, the CompuServe Service, the
Netscape Netcenter, or the AOL Network.
AOL.COM. The standard narrow-band U.S. version of AOL's primary website marketed
under the AOL.com(R) brand.
COMPUSERVE SERVICE. The standard narrow-band U.S. CompuServe(R) brand online
service.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of the Agreement, which is or should be reasonably understood to be confidential
or proprietary to the disclosing Party, including, but not limited to, the
material terms of this Agreement, information about AOL Users, technical
processes and formulas, source codes, product designs, sales, cost and other
unpublished financial information, product and business plans, projections, and
marketing data. "Confidential Information" will not include information (a)
already lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, (d)
lawfully obtained from any third party, or (e) required or reasonably advised to
be disclosed by law.
CONTENT. Text, images, video, audio (including, without limitation, music used
in synchronism or timed relation with visual displays) and other data, Products,
advertisements, promotions, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
IMPRESSION. User exposure to the commerce center screens, department level
screens and any other promotional inventory screens (e.g. AOL Welcome Screen)
containing the applicable promotion or advertisement, as such exposure may be
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols.
INTERACTIVE SERVICE. Means and refers to an entity offering one or more of the
following: (i) online or Internet connectivity services (e.g., an Internet
service provider); (ii) an interactive site or service featuring a broad
selection of aggregated third party interactive content or navigation thereto
(e.g., an online service or search and directory service) and/or marketing a
broad selection of products and/or services across numerous interactive commerce
categories (e.g., an online mall or other leading broad-based online commerce
site); (iii) a persistent desktop client; or (iv) communications software
capable of serving as the principal means through which a user creates, sends or
receives electronic mail or real time or "instant" online messages (whether by
telephone, computer or other means), including without limitation greeting
cards.
KEYWORD SEARCH TERMS. The keyword online navigational terms made available on
the AOL Service, combining AOL's keyword online search modifier with a term or
phrase specifically related to MERCHANT (and determined in accordance with the
terms of this Agreement).
MERCHANT INTERACTIVE SITE. Any site which is managed, maintained, owned or
controlled by Merchant or its agents.
NETSCAPE NETCENTER. The standard narrow-band U.S. version of the primary website
of Netscape Communications Corporation marketed under the "Netcenter(TM)" brand.
PRODUCTS. See Section 1.
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EXHIBIT G-3: STANDARD SHOPPING CHANNEL TERMS & CONDITIONS
1. MERCHANT SITE. MERCHANT will work diligently to develop and implement the
Merchant Site, consisting of the specific Product(s) set forth in Exhibit A and
any additional Products agreed upon in writing by the Parties subsequent to the
Effective Date. Except as mutually agreed upon in writing by the Parties, the
Merchant Site will contain only categories of Products, services and Content
that are directly related to the MERCHANT Products listed in Exhibit A. All
sales of Products through the Merchant Site will be conducted through a direct
sales format (e.g. no auctions or clubs), absent the mutual consent of the
Parties. MERCHANT will ensure that the Merchant Site does not in any respect
promote, advertise, market or distribute the products, services or Content of
any other Interactive Service.
2. MANAGEMENT OF MERCHANT SITE. MERCHANT will manage, review, delete, edit,
create, update and otherwise manage all Content available on or through the
Merchant Site, in a timely and professional manner and in accordance with the
terms of this Agreement and AOL's applicable Terms of Service and Privacy Policy
(as set forth on the AOL Service). MERCHANT will ensure that the Merchant Site
is current, accurate and well-organized at all times. MERCHANT warrants that the
Merchant Site and any material contained therein: (i) will conform to AOL's
then-applicable Terms of Service and Privacy Policy; (ii) will not infringe on
or violate any copyright, trademark, U.S. patent or any other third party right,
including without limitation, any music performance or other music-related
rights; and (iii) will not contain any Product which violates any applicable law
or regulation, including those relating to contests, sweepstakes or similar
promotions. AOL will have no obligations with respect to the Products available
on or through the Merchant Site, including, but not limited to, any duty to
review or monitor any such Products; provided, however, that AOL reserves the
right to review and approve any additional Products and any third-party content,
products or services that MERCHANT makes or desires to make available through
the Merchant Site. Upon AOL's request, MERCHANT agrees to include within the
Merchant Site a product disclaimer (the specific form and substance to be
mutually agreed upon by the Parties) indicating that transactions are solely
between MERCHANT and the AOL Users who purchase products from MERCHANT. MERCHANT
will ensure that neither MERCHANT nor any Content, product or service contained
within the Merchant Site, linked to the Promotion, or otherwise relating the
Agreement shall (i) disparage AOL; (ii) promote any Interactive Service; or
(iii) state or imply that AOL endorses MERCHANT's Products.
3. OPTIMIZATION OF MERCHANT SITE. MERCHANT will take all reasonable steps
necessary to conform its promotion and sale of Products through the Merchant
Site to the then-existing commerce technologies made available to MERCHANT by
AOL. MERCHANT will be given an opportunity to implement, at MERCHANT's option,
AOL's "quick checkout" tool which allows AOL Users to enter payment and shipping
information which is then passed from AOL's centralized server unit to MERCHANT
for order fulfillment ("AOL Quick Checkout") and AOL's "product search" tool
technology which allows AOL Users to run a customized search among Merchant's
detailed inventory data ("AOL Product Search"); provided however that in the
event that MERCHANT declines participation in these programs then AOL reserves
the right to reduce or prohibit MERCHANT's participation in any other
incremental merchandising programs offered through the Shopping Channel.
Collection, storage and disclosure of AOL Quick Checkout information which
MERCHANT provides to AOL, will be subject to AOL's privacy policy and all
confidentiality requirements hereunder. To the extent that the Merchant Site
offers AOL's Quick Checkout, MERCHANT will ensure that the AOL Quick Checkout is
of equal placement and prominence to other available payment options. AOL
reserves the right to review and test the Merchant Site from time to time to
determine whether the site is compatible with the AOL Network's then-available
client and host software and network. AOL will be entitled to require reasonable
changes to the Content, features and/or functionality within the Merchant Site
to the extent such content, features or functionality will, in AOL's good faith
judgment, adversely affect operations of the AOL Network. MERCHANT agrees to
optimize operations of the Merchant Site consistent with Exhibit E attached
hereto.
4. REMOVAL OF CONTENT. AOL will have the right to remove, or direct MERCHANT to
remove, any Content in the Merchant Site (including, without limitation, any
features, functionality or technology) which, as reasonably determined by AOL
(i) violates AOL's then-standard Terms of Service or Privacy Policy (as set
forth on the AOL Service), any other standard, written AOL policy or the terms
of this Agreement, (ii) is inconsistent in any manner with the terms of the
Agreement or with the Product description set forth in Exhibit A or (iii) is
otherwise in conflict with AOL's programming objectives or its existing
contractual commitments to third parties. In the event that MERCHANT cannot,
through such efforts, block access to the Content in question, then MERCHANT
will provide AOL prompt written notice of such fact no later than five (5) days
after AOL notifies MERCHANT of AOL's objection to such Content. AOL may then, at
its option, either (i) restrict access by AOL Users to the Content in question
using technology available to AOL or (ii) terminate all links, promotions and
advertisements for the Merchant Site until such time as the Content in question
is no longer displayed. MERCHANT will cooperate with AOL's reasonable requests
to the extent AOL elects to implement any of the foregoing access restrictions.
5. PROMOTIONAL PLACEMENT. AOL reserves the right to reject, cancel or remove at
any time the Promotion for any reason with fifteen (15) days prior notice to
MERCHANT, and AOL will refund to MERCHANT a pro-rata portion of the fee
allocable to the display of the Promotion based on the number of days that the
Promotion was displayed. Except for the pro-rata refund set forth in the
foregoing sentence, AOL will not be liable in any way for any rejection,
cancellation or removal of the Promotion. AOL reserves the right to redesign or
modify the organization, navigation, structure, "look and feel" and other
elements of the AOL Service, AOL.com, the CompuServe Service, the Netscape
Netcenter and the AOL Network, at its sole discretion at any time. In the event
such modifications materially affect the placement of the Promotion, AOL will
notify MERCHANT and will work with MERCHANT to display the Promotion in a
comparable location and manner. If AOL and MERCHANT cannot reach agreement on a
substitute placement, MERCHANT will have the right to cancel the Promotion, upon
sixty(60) days advance written notice to AOL. In such case, MERCHANT will only
be responsible for the pro-rata portion of payments attributable to the number
of days from the Effective Date through the end of the sixty (60) day notice
period. MERCHANT may not resell, trade, exchange, barter or broker to any third
party any promotional or advertising space which is the subject of this
Agreement. MERCHANT will not be entitled to any refund or proration for delays
caused by MERCHANT's failure to deliver to AOL any materials relating to the
Promotion. MERCHANT acknowledges and agrees that AOL will own all right, title
and interest in and to the elements of graphics, design, organization,
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementations thereof) which are generally associated
with online areas contained within the AOL Network.
6. PRODUCT OFFERING. MERCHANT will ensure that the Merchant Site generally
includes all of the Products and other Content (including, without limitation,
any features, offers, contests, functionality or technology) that are then made
available by or on behalf of MERCHANT through any Additional MERCHANT Channel
unless prohibited by this Agreement.
7. TERMS AND CONDITIONS. MERCHANT will ensure that the prices, terms and
conditions related to Products in the Merchant Site are generally no less
favorable in any respect to the terms and conditions for the Products offered by
or on behalf of MERCHANT through any Additional MERCHANT Channel.
8. EXCLUSIVE OFFERS. MERCHANT will generally promote through the Merchant Site
any special or promotional offers made available by or on behalf of MERCHANT
through any Additional MERCHANT Channel. In addition, MERCHANT shall promote
through the Merchant
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Site on a regular and consistent basis special offers exclusively available to
AOL Users (the "AOL Exclusive Offers"). MERCHANT shall, at all times, feature at
least one AOL Exclusive Offer for AOL Users (except as otherwise mutually agreed
upon by the Parties). The AOL Exclusive Offer made available by MERCHANT shall
provide a substantial member benefit to AOL Users, either by virtue of a
meaningful price discount, product enhancement, unique service benefit or other
special feature. MERCHANT will provide AOL with reasonable prior notice of
Exclusive Offers so that AOL can in its editorial discretion, market the
availability of such offers. At MERCHANT's option, MERCHANT will work with AOL
or its authorized agents to develop a customized AOL rewards program, which
shall be a promotional program or plan that is intended to provide AOL users
with rewards or benefits in exchange for, or on account of, their past or
continued loyalty to, or patronage or purchase of, the products or services of
Merchant or any third party. (e.g. a promotional program similar to a "frequent
flier" program), to be provided through AOL's "AOL Rewards" program, accessible
on the AOL Service at Keyword: "AOL Rewards." Merchant's participation in such
promotional rewards program is subject to AOL's approval and may also require
the payment of certain reasonable administration fees to AOL or its authorized
agents or contractors operating the program.
9. CUSTOMER SERVICE. It is the sole responsibility of MERCHANT to provide
customer service to persons or entities purchasing Products through the AOL
Network, including without limitation, order processing, billing, fulfillment,
shipment, collection and other customer service associated with any Products
offered, sold or licensed through the Merchant Site, and AOL will have no
obligations whatsoever with respect thereto. Merchant Site shall include clear
and conspicuous disclosure of its customer service policies and a phone number
and an email or street address at which customers may contact MERCHANT. MERCHANT
shall provide a name of a customer service contact for use by AOL and a
telephone number and email or street address to which AOL may forward or refer
customer inquiries or complaints relating to MERCHANT. MERCHANT will receive all
emails from customers via a computer available to MERCHANT's customer service
staff and generally respond to such emails within one business day of receipt.
MERCHANT will receive all orders electronically and generally process all orders
within one business day of receipt, provided Products ordered are not advance
order items. MERCHANT will ensure that all orders of Products are received,
processed, fulfilled and delivered on a timely and professional basis. MERCHANT
will offer AOL Users who purchase Products through such the Merchant Site a
money-back satisfaction guarantee. MERCHANT will bear all responsibility for
compliance with federal, state and local laws in the event that Products are out
of stock or are no longer available at the time an order is received. MERCHANT
will also comply with the requirements of any federal, state or local consumer
protection or disclosure law. Payment for Products will be collected by MERCHANT
directly from customers. MERCHANT's order fulfillment operation will be subject
to AOL's reasonable review.
10. LAUNCH DATES. In the event that any terms contained herein relate to or
depend on the commercial launch date of the Merchant Site (the "Merchant Site
Launch Date"), then it is the intention of the Parties to record such Merchant
Site Launch Date in a written instrument signed by both Parties promptly
following such Merchant Site Launch Date; provided that, in the absence of such
a written instrument, the Merchant Site Launch Date will be as reasonably
determined by AOL based on the information available to AOL. For each day beyond
the Merchant Site Launch Date that the actual commercial launch of the Merchant
Site is delayed (e.g., due to MERCHANT or the Merchant Site not being ready),
then AOL will be entitled to reduce the Impressions Commitment pro rata and
decrease the promotions it provides to MERCHANT hereunder.
11. MERCHANT CERTIFICATION PROGRAM. MERCHANT will participate in any generally
applicable "Certified Merchant" program operated by AOL or its authorized agents
or contractors. Such program may require merchant participants on an ongoing
basis to meet certain reasonable standards relating to provision of electronic
commerce through the AOL Service, AOL.com, the CompuServe Service and the
Netscape Netcenter and may also require the payment of certain reasonable
certification fees to AOL or its authorized agents or contractors operating the
program. At MERCHANT's option, MERCHANT may (i) participate in the BizRate(R)
Program, a service offered by Binary Compass Enterprises, Inc. (BCE), which
provides opt-in satisfaction surveys to AOL Users who purchase Products through
the Merchant Site, or such other provider of such services as AOL may designate
or approve from time to time, and (ii) provide a link to BizRate's then-current
standard survey forms, or such other survey forms offered by any other party
that AOL may reasonably designate or approve from time to time. To the extent
MERCHANT participates in the BizRate(R) Program, MERCHANT's participation shall
be based upon a separate written agreement which MERCHANT will enter into with
BCE, or other such party reasonably designated or approved by AOL. MERCHANT
hereby authorizes BCE or other third party providing such services to provide to
AOL any and all reports provided to MERCHANT by BCE and agrees to provide
written notice of such authorization to BCE, or such other third party.
12. TRAFFIC FLOW/NAVIGATION. MERCHANT will take reasonable efforts to ensure
that AOL traffic is either kept within the Merchant Site or channeled back into
the AOL Network (e.g. hypertext links). The Parties will work together on
implementing mutually acceptable links from the Merchant Site back to the AOL
Network. In the event that AOL points to the Merchant Site or any other Merchant
Interactive Site or otherwise delivers traffic to such site hereunder, MERCHANT
will ensure that navigation back to the AOL Network from such site, whether
through a particular pointer or link, the "back" button on an Internet browser,
the closing of an active window, or any other return mechanism, shall not be
interrupted by MERCHANT through the use of any intermediate screen or other
device not specifically requested by the AOL user, including without limitation
through the use of any html pop-up window or any other similar device. AOL will
be entitled to establish navigational icons, links, and/or pointers connecting
the Merchant Site (or portions thereof) with the AOL Network. Additionally, in
cases where an AOL User performs a search for Merchant through any search or
navigational tool or mechanism that is accessible or available through the AOL
Network (e.g., Promotions, Keyword Search Terms, or any other similar promotions
or navigational tools), AOL shall have the right to direct such AOL User to the
Merchant Site, or any other Merchant Interactive Site determined by AOL in its
reasonable discretion.
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EXHIBIT G-4: STANDARD LEGAL TERMS & CONDITIONS
1. PRODUCTION AND TECHNICAL SERVICES. Unless expressly provided for elsewhere in
this Agreement, (i) AOL will have no obligation to provide any creative, design,
technical or production services to MERCHANT and (ii) the nature and extent of
any such services which AOL may provide to MERCHANT will be as determined by AOL
in its sole discretion. The terms regarding any creative, design, technical or
productions services provided by AOL to MERCHANT will be as mutually agreed upon
by the parties in a separate written work order. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of the Merchant Site ("Routine Services"), MERCHANT will pay the
then-standard fees charged by AOL for such Routine Services.
2. AOL ACCOUNTS. To the extent MERCHANT has been granted any AOL Service, or the
CompuServe Service accounts, MERCHANT will be responsible for the actions taken
under or through its accounts, which actions are subject to AOL's applicable
Terms of Service and for any surcharges, including, without limitation, all
premium charges, transaction charges, and any applicable communication
surcharges incurred by any account issued to MERCHANT. Upon the termination of
this Agreement, all such accounts, related screen names and any associated usage
credits or similar rights, will automatically terminate. AOL will have no
liability for loss of any data or content related to the proper termination of
any such account.
3. TAXES. MERCHANT will collect and pay and indemnify and hold AOL harmless
from, any sales, use, excise, import or export value added or similar tax or
duty arising from the Merchant Site, including any penalties and interest, as
well as any costs associated with the collection or withholding thereof,
including attorneys' fees.
4. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the
other Party that: (i) such Party has the full corporate right, power and
authority to enter into the Agreement and to perform the acts required of it
hereunder; (ii) the execution of the Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, the Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; and (iv) such Party
acknowledges that the other Party makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in the Agreement.
5. LICENSE. MERCHANT hereby grants AOL a non-exclusive worldwide license to
market, license, distribute, reproduce, display, perform, transmit and promote
the Merchant Site and all content, products and services offered therein or
otherwise provided by MERCHANT in connection herewith through the AOL Network.
AOL Users will have the right to access and use the Merchant Site. Subject to
such license, MERCHANT retains all right, title to and interest in the Merchant
Site. During the Term, AOL will have the right to use MERCHANT's trademarks,
trade names and service marks in connection with performance of this Agreement,
subject to any written guidelines provided to AOL.
6. CONFIDENTIALITY. Each Party acknowledges that Confidential Information may be
disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially equivalent to
the steps it takes to protect its own proprietary information, during the term
of this Agreement, and for a period of three years following expiration or
termination of this Agreement, to prevent the duplication or disclosure of
Confidential Information of the other Party, other than by or to its employees
or agents who must have access to such Confidential Information to perform such
Party's obligations hereunder, who will each agree to comply with this
provision. MERCHANT shall not make, publish, or otherwise communicate through
the AOL Network any deleterious remarks concerning AOL or it Affiliates,
directors, officers, employees, or agents (including, without limitation, AOL's
business projects, business capabilities, performance of duties and services, or
financial position) which remarks are based on the relationship established by
this Agreement or information exchanged hereunder. This section is not intended
to limit good faith editorial statements made by MERCHANT based upon publicly
available information, or information developed by MERCHANT independent of its
relationship with AOL and its employees and agents.
7. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
(a) LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY
TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.COM, THE COMPUSERVE SERVICE, THE
NETSCAPE NETCENTER OR THE MERCHANT SITE, OR ARISING FROM ANY OTHER PROVISION OF
THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT
EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED
DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT
TO PARAGRAPH (C) BELOW. EXCEPT AS PROVIDED TO PARAGRAPH (C) BELOW, (I) LIABILITY
ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES, AND (II), AOL WILL NOT BE LIABLE TO MERCHANT UNDER THE AGREEMENT FOR
MORE THAN THE AMOUNTS THEN PAID TO AOL BY MERCHANT HEREUNDER.
(b) NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING, THE AOL SERVICE,
AOL.COM, THE COMPUSERVE SERVICE, THE NETSCAPE NETCENTER, THE AOL NETWORK, OR THE
MERCHANT SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE PROFITABILITY OF THE
MERCHANT SITE, (II) THE NUMBER OF PERSONS WHO WILL ACCESS OR "CLICK-THROUGH" THE
PROMOTION, (III) ANY BENEFIT MERCHANT MIGHT OBTAIN FROM INCLUDING THE PROMOTION
WITHIN THE AOL SERVICE, AOL.COM, THE NETSCAPE NETCENTER, OR THE COMPUSERVE
SERVICE OR THE AOL NETWORK OR (IV) THE FUNCTIONALITY, PERFORMANCE OR OPERATION
OF THE AOL SERVICE, AOL.COM, THE COMPUSERVE OR NETSCAPE NETCENTER WITH RESPECT
TO THE PROMOTION.
(c) Indemnity. Either Party will defend, indemnify, save and hold harmless the
other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable attorneys'
fees ("Liabilities"), resulting from the indemnifying Party's breach of any
duty, representation, or warranty of the Agreement, except where Liabilities
result from the gross negligence or knowing and willful misconduct of the other
Party.
(d) Claims. If a Party entitled to indemnification hereunder (the "Indemnified
Party") becomes aware of any matter it believes is indemnifiable hereunder
involving any claim, action, suit, investigation, arbitration or other
proceeding against the Indemnified Party by any third party (each an "Action"),
the Indemnified Party will give the other Party (the "Indemnifying Party")
prompt written notice of such Action. Such notice will (i) provide the basis on
which indemnification is being asserted and (ii) be accompanied by copies of all
relevant pleadings, demands, and other papers related to the Action and in the
possession of the Indemnified Party. The Indemnifying Party will have a period
of ten (10) days after delivery of such notice to respond. If the
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Indemnifying Party elects to defend the Action or does not respond within the
requisite ten (10) day period, the Indemnifying Party will be obligated to
defend the Action, at its own expense, and by counsel reasonably satisfactory to
the Indemnified Party. The Indemnified Party will cooperate, at the expense of
the Indemnifying Party, with the Indemnifying Party and its counsel in the
defense and the Indemnified Party will have the right to participate fully, at
its own expense, in the defense of such Action. If the Indemnifying Party
responds within the required ten (10) day period and elects not to defend such
Action, the Indemnified Party will be free, without prejudice to any of the
Indemnified Party's rights hereunder, to compromise or defend (and control the
defense of) such Action. In such case, the Indemnifying Party will cooperate, at
its own expense, with the Indemnified Party and its counsel in the defense
against such Action and the Indemnifying Party will have the right to
participate fully, at its own expense, in the defense of such Action. Any
compromise or settlement of an Action will require the prior written consent of
both Parties hereunder, such consent not to be unreasonably withheld or delayed.
(e) Acknowledgment. AOL and MERCHANT each acknowledges that the provisions of
this Agreement were negotiated to reflect an informed, voluntary allocation
between them of all risks (both known and unknown) associated with the
transactions contemplated hereunder. The limitations and disclaimers related to
warranties and liability contained in the Agreement are intended to limit the
circumstances and extent of liability. The provisions in paragraphs (a) through
(d) above and this paragraph (e) will be enforceable independent of and
severable from any other enforceable or unenforceable provision of this
Agreement.
8. SOLICITATION OF SUBSCRIBERS.
(a) During the term of the Agreement and for a two year period thereafter,
MERCHANT will not use the AOL Network (including, without limitation, the e-mail
network contained therein) to solicit AOL Users on behalf of another Interactive
Service. MERCHANT will not send unsolicited, commercial e-mail or other online
communication through or into AOL's products or services, absent a Prior
Business Relationship. For purposes of this Agreement, a "Prior Business
Relationship" will mean that the AOL User to whom commercial e-mail or other
online communication is being sent has voluntarily either (i) engaged in a
transaction with MERCHANT or (ii) provided information to MERCHANT through a
contest, registration, or other communication, which included notice to the AOL
User that the information provided could result in commercial e-mail or other
online communication being sent to that AOL User by MERCHANT or its agents. More
generally, any commercial e-mail or other online communication to be sent
through or into AOL's products or services shall be subject to AOL's
then-standard restrictions on distribution of bulk e-mail and the limitations
set forth in Exhibit C.
(b) MERCHANT shall ensure that its collection, use and disclosure of information
obtained from AOL Users under this Agreement ("User Information") complies with
(i) all applicable laws and regulations (ii) AOL's standard privacy policies,
available on the AOL Service at the keyword term "Privacy", and (iii) AOL's
applicable Terms of Service.
(c) MERCHANT will not disclose User Information to any third party in a manner
that identifies AOL User as end users of an AOL product or service or use User
Information collected under this Agreement to market an Interactive Service
competitive with AOL.
9. AOL User Communications. TO THE EXTENT MERCHANT IS OTHERWISE PERMITTED TO
SEND COMMUNICATIONS TO AOL USERS (IN ACCORDANCE WITH THE OTHER REQUIREMENTS
CONTAINED HEREIN):, (i) ANY SOLICITATIONS IN SUCH COMMUNICATIONS TO PURCHASE
PRODUCTS OR SERVICES SHALL PROMOTE THE MERCHANT SITE AVAILABLE THROUGH THE AOL
NETWORK AS THE PRINCIPAL MEANS THROUGH WHICH TO PURCHASE ANY SUCH PRODUCTS OR
SERVICES; (ii) ANY DIRECT LINKS TO SPECIFIC OFFERS WITHIN SUCH COMMUNICATIONS
SHALL LINK TO THE MERCHANT SITE; (iii) MERCHANT SHALL LIMIT THE SUBJECT MATTER
OF SUCH COMMUNICATIONS TO THOSE CATEGORIES OF PRODUCTS, SERVICES AND/OR CONTENT
WHICH ARE SPECIFICALLY CONTEMPLATED BY THIS AGREEMENT; AND (iv) MERCHANT WILL
PROVIDE THE RECIPIENT WITH A PROMINENT AND EASY MEANS TO "OPT-OUT" OF RECEIVING
ANY FUTURE COMMERCIAL E-MAIL COMMUNICATIONS FROM MERCHANT. IN ADDITION, IN ANY
COMMUNICATION TO AOL USERS OR ON THE MERCHANT SITE, MERCHANT WILL NOT ENCOURAGE
AOL USERS TO TAKE ANY ACTION INCONSISTENT WITH THE SCOPE AND PURPOSE OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, THE FOLLOWING ACTIONS: (a) USING
INTERACTIVE SITES OTHER THAN THE MERCHANT SITE; (b) BOOKMARKING OF OTHER
INTERACTIVE SITES; (c) CHANGING THE DEFAULT HOME PAGE ON THE AOL BROWSER; OR (d)
USING ANY INTERACTIVE SERVICE OTHER THAN THE AOL SERVICE, AOL.COM, THE
COMPUSERVE SERVICE OR THE NETSCAPE NETCENTER.
10. KEYWORD SEARCH TERMS. Any Keyword Search Terms to be directed to Merchant's
Site shall be (i) subject to availability and (ii) limited to the combination of
the keyword search modifier combined with a registered trademark of MERCHANT.
AOL reserves the right at any time to revoke MERCHANT's use of any keywords that
are not registered trademarks of MERCHANT. MERCHANT acknowledges that its
utilization of a Keyword Search Term will not create in it, nor will it
represent it has, any right, title or interest in or to such Keyword Search
Term, other than the right, title and interest MERCHANT holds in MERCHANT's
registered trademark independent of the Keyword Search Term. Without limiting
the generality of the foregoing, MERCHANT will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword Search Term;
or (b) use the Keyword Search Term, except for the purposes expressly required
or permitted under this Agreement. To the extent AOL allows AOL Users to
"bookmark" the URL or other locator for the Merchant Site, such bookmarks will
be subject to AOL's control at all times. Upon the termination of this
Agreement, MERCHANT's rights to any keywords and bookmarking will terminate.
11. MISCELLANEOUS. Neither Party will be liable for, or be considered in breach
of or default under the Agreement on account of, any delay or failure to perform
as required by the Agreement (except with respect to payment obligations) as a
result of any causes or conditions which are beyond such Party's reasonable
control and which such Party is unable to overcome by the exercise of reasonable
diligence. MERCHANT's rights, duties, and obligations under the Agreement are
not transferable. The Parties to the Agreement are independent contractors.
Neither Party is an agent, representative or partner of the other Party. Neither
Party will have any right, power or authority to enter into any agreement for or
on behalf of, or incur any obligation or liability of, or to otherwise bind, the
other Party. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of the Agreement or to exercise
any right under the Agreement will not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same will be
and remain in full force and effect. Sections 2, 3, 6, 7, 8, 9, 10, and 11 of
these Standard Legal Terms and Conditions, will survive the completion,
expiration, termination or cancellation of the Agreement. Either Party may
terminate the Agreement at any time with written notice to the other Party in
the event of a material breach of the Agreement by the other Party, which
remains uncured after thirty days written notice thereof. Any notice, approval,
request, authorization, direction or other communication under this Agreement
will be given in writing and will be deemed to have been delivered and given for
all purposes (i) on the delivery date if delivered by electronic mail on AOL's
network or systems (to screenname "[email protected]" in the case of AOL) or by
confirmed facsimile; (ii) on the delivery date if delivered personally to the
Party to whom the same is directed; (iii) one business day after deposit with a
commercial overnight carrier, with written verification of receipt; or (iv) five
business days after the mailing date, whether or not actually received, if sent
by U.S. mail, return receipt requested, postage and charges prepaid, or any
other means of rapid mail delivery for which a receipt is available. In the case
of AOL, such
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notice will be provided to both the Senior Vice President for Business Affairs
(fax no. 703-265-1206) and the Deputy General Counsel (fax no. 703-265-2208),
each at the address of AOL set forth in the first paragraph of this Agreement.
In the case of MERCHANT, except as otherwise specified herein, the notice
address will be the address for MERCHANT set forth in the first paragraph of
this Agreement, with the other relevant notice information, including the
recipient for notice and, as applicable, such recipient's fax number or AOL
email address, to be as reasonably identified by AOL. Except as otherwise
specified herein, the Agreement sets forth the entire agreement between MERCHANT
and AOL, and supersedes any and all prior agreements of AOL or MERCHANT with
respect to the transactions set forth herein. No change, amendment or
modification of any provision of the Agreement will be valid unless set forth in
a written instrument signed by the Party subject to enforcement of such
amendment. MERCHANT will promptly inform AOL of any information related to the
Merchant Site which could reasonably lead to a claim, demand, or liability of or
against AOL and/or its affiliates by any third party. MERCHANT will not assign
this Agreement or any right, interest or benefit under this Agreement without
the prior written consent of AOL. Assumption of the Agreement by any successor
to MERCHANT (including, without limitation, by way of merger, consolidation or
sale of all or substantially all of MERCHANT's stock or assets) will be subject
to AOL's prior written approval. Subject to the foregoing, this Agreement will
be fully binding upon, inure to the benefit of and be enforceable by the Parties
hereto and their respective successors and assigns. Except where otherwise
specified herein, the rights and remedies granted to a Party under the Agreement
are cumulative and in addition to, and not in lieu of, any other rights or
remedies which the Party may possess at law or in equity. In the event that any
provision of the Agreement is held invalid by a court with jurisdiction over the
Parties to the Agreement, (i) such provision will be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in full force and
effect. The Agreement may be executed in counterparts, each of which will be
deemed an original and all of which together will constitute one and the same
document. The Agreement will be interpreted, construed and enforced in all
respects in accordance with the laws of the Commonwealth of Virginia, except for
its conflicts of laws principles. MERCHANT hereby irrevocably consents to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts therein in connection with any action arising under this
Agreement.
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EXHIBIT G-5: SHOPPING OPERATIONS
1. Merchant Site Infrastructure. MERCHANT will be responsible for all
communications, hosting and connectivity costs and expenses associated
with the Merchant Site. MERCHANT will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet
traffic demands on the Merchant Site from the AOL Network. MERCHANT
will design and implement the network between the AOL Service and
Merchant Site such that (i) no single component failure will have a
materially adverse impact on AOL Members seeking to reach the Merchant
Site from the AOL Network and (ii) no single line under material
control by the Merchant will run at more than 70% average utilization
for a 5-minute peak in a daily period. In this regard, MERCHANT will
provide AOL, upon request, with a detailed network diagram regarding
the architecture and network infrastructure supporting the Merchant
Site. In the event that MERCHANT elects to create a custom version of
the Merchant Site in order to comply with the terms of this Agreement,
MERCHANT will bear responsibility for all aspects of the
implementation, management and cost of such customized site.
2. Optimization; Speed. MERCHANT will use commercially reasonable efforts
to ensure that: (a) the functionality and features within the Merchant
Site are optimized for the client software then in use by AOL Members;
and (b) the Merchant Site is designed and populated in a manner that
minimizes delays when AOL Members attempt to access such site. At a
minimum, MERCHANT will ensure that the Merchant Site's data transfers
initiate within fewer than fifteen (15) seconds on average. Prior to
commercial launch of any material promotions described herein, MERCHANT
will permit AOL to conduct performance and load testing of the Merchant
Site (in person or through remote communications), with such commercial
launch not to commence until such time as AOL is reasonably satisfied
with the results of any such testing.
3. User Interface. MERCHANT will maintain a graphical user interface
within the Merchant Site that is competitive in all material respects
with interfaces of other similar sites based on similar form
technology. AOL reserves the right to review and approve the user
interface and site design prior to launch of the Promotions and to
conduct focus group testing to assess compliance with respect to such
consultation and with respect to MERCHANT's compliance with the
preceding sentence.
4. Technical Problems. MERCHANT agrees to use commercially reasonable
efforts to address material technical problems (over which MERCHANT
exercises control) affecting use by AOL Members of the Merchant Site (a
"MERCHANT Technical Problem") promptly following notice thereof. In the
event that MERCHANT is unable to promptly resolve a MERCHANT Technical
Problem following notice thereof from AOL (including, without
limitation, infrastructure deficiencies producing user delays), AOL
will have the right to regulate the promotions it provides to MERCHANT
hereunder until such time as MERCHANT corrects the MERCHANT Technical
Problem at issue.
5. Monitoring. MERCHANT will ensure that the performance and availability
of the Merchant Site is monitored on a continuous basis. MERCHANT will
provide AOL with contact information (including e-mail, phone, pager
and fax information, as applicable, for both during and after business
hours) for MERCHANT's principal business and technical representatives,
for use in cases when issues or problems arise with respect to the
Merchant Site.
6. Security. MERCHANT will utilize Internet standard encryption
technologies (e.g., Secure Socket Layer-SSL) to provide a secure
environment for conducting transactions and/or transferring private
member information (e.g. credit card numbers, banking/financial
information, and member address information) to and from the Merchant
Site. MERCHANT will facilitate periodic reviews of the Merchant Site by
AOL in order to evaluate the security risks of such site. MERCHANT will
promptly remedy any security risks or breaches of security as may be
identified by AOL's Operations Security team.
7. Technical Performance.
i. MERCHANT will design the Merchant Site to support the
AOL-client embedded versions of the Microsoft Internet
Explorer 3.XX and 4.XX browsers (Windows and Macintosh), the
Netscape Browser 4.XX, and make commercially reasonable
efforts to support all other AOL browsers listed at:
"http://webmaster.info.aol.com/".
ii. To the extent MERCHANT creates customized pages on the
Merchant Site for AOL Members, Merchant will develop and
employ a methodology to detect AOL Members (e.g. examine the
HTTP User-Agent field in order to identify the "AOL
Member-Agents" listed at: "http://webmaster.info.aol.com/").
iii. MERCHANT will periodically review the technical information
made available by AOL at http://webmaster.info.aol.com.
iv. MERCHANT will design its site to support HTTP 1.0 or later
protocol as defined in RFC 1945 and to adhere to AOL's
parameters for refreshing or preventing the caching of
information in AOL's proxy system outlined in the document
provided at the following URL: http://webmaster.info.aol.com.
The Merchant is responsible for the manipulation of these
parameters in web based objects so as to allow them to be
cached or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features
through the Merchant Site ("New Functionality"), MERCHANT will
use commercially reasonable efforts to: (i) test the New
Functionality to confirm its compatibility with AOL Service
client software and (ii) provide AOL with written notice of
the New Functionality so that AOL can perform tests of the New
Functionality to confirm its compatibility with the AOL
Service client software. Should any new material, new
functionality or features through the Merchant Site be
released without notification to AOL. AOL will not be
responsible for any adverse member experience until such time
that compatibility tests can be performed and the new
material, functionality or features qualified for the AOL
Service.
8. AOL Internet Services MERCHANT Support. AOL will provide
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MERCHANT with access to the standard online resources, standards and
guidelines documentation, technical phone support, monitoring and
after-hours assistance that AOL makes generally available to similarly
situated web-based partners. AOL support will not, in any case, be
involved with content creation on behalf of MERCHANT or support for any
technologies, databases, software or other applications which are not
supported by AOL or are related to any MERCHANT area other than the
Merchant Site. Support to be provided by AOL is contingent on MERCHANT
providing to AOL demo account information (where applicable), a
detailed description of the Merchant Site's software, hardware and
network architecture and access to the Merchant Site for purposes of
such performance and the coordination of load testing as AOL elects to
conduct. As described elsewhere in this Agreement, MERCHANT is fully
responsible for all aspects of hosting and administration of the
Merchant Site and must ensure that the site satisfies the specified
access and performance requirements as outlined in this Exhibit E.
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EXHIBIT 10.8
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS WITH ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
LYCOS, INC.
SPECIAL DELIVERY/SPECIAL OFFER AGREEMENT
THIS SPECIAL DELIVERY / SPECIAL OFFER AGREEMENT (this "Agreement") is
entered into as of August 15, 1999 between Lycos, Inc., a Delaware corporation
and Bolt.com, a New York corporation.
SECTION 1. DEFINITIONS.
1.1 "MailCity" means Lycos' World Wide Web-based electronic mail
service, currently commercially referred to as MailCity(TM), as the same may be
updated or modified from time to time in Lycos' sole discretion.
1.2 "Private-Labeled E-Mail Systems" means any World Wide Web-based
electronic mail services powered by Lycos.
1.3 "Subscribe or a Subscription" means when a MailCity User (as
defined in Section 2.1) or a Private-Label User (as defined in Section 2.1)
checks the appropriate box on the user interface designed by Lycos to receive
one of Content Provider's Newsletter Products.
SECTION 2. SERVICES OFFERED BY CONTENT PROVIDER.
2.1 E-Mail News Products. Content Provider shall produce the e-mail
newsletter or promotional products described in Exhibit A to this Agreement
(which may be amended from time to time upon the mutual consent of the parties)
(the "Newsletter Products") for distribution during the Term of this Agreement,
by Lycos to the users of MailCity (each, a "MailCity User") who Subscribe to
such Newsletter Products, and solely at the election of Lycos, any of the users
of any of the Private-Labeled E-Mail Systems (each, a "Private-Label User") who
Subscribe to such Newsletter Products, as provided in Section 3. Content
Provider shall produce such Newsletter Products no less frequently than once per
month and no more frequently than four times per month.
2.2 Content. Content Provider's Newsletter Products shall not infringe
or violate any third party's copyright, patent, trademark, trade secret, music,
image, or other proprietary right, or constitute false advertising, unfair
competition, defamation, invasion of privacy or rights of celebrity, violate any
anti-discrimination law or regulation, or any, other right of any other person
or entity. Additionally, Content Provider's Newsletter Products shall not
include content that contains, or contains links to, nudity, sex, pornography,
foul language or hate propaganda. Content Provider shall not send unsolicited
special offers or marketing materials (e.g., "SPAM") to MailCity Users or
Private-Label Users.
<PAGE> 2
SECTION 3. SERVICES OFFERED BY LYCOS.
3.1 Subscriptions by Users. Lycos shall enable new and existing
MailCity Users to Subscribe for Content Provider's Newsletter Products
3.2 Distribution of Newsletters. During the Term of this Agreement,
Content Provider shall deliver to Lycos an electronic (to an address specified
by Lycos) and hard copy of the standard form of each edition of the Newsletter
Products to be distributed by Lycos to those users that subscribe for such
Newsletter Products; provided that Lycos shall not be obligated to deliver more
than [ * ] of each Newsletter Product each month and Lycos may decide which
Lycos Site on which the Newsletter Products will be offered, in the event
Content Provider exceed the limit of [ * ] Newsletter Products per month, then
Content Provider shall pay (in accordance with Section 4.2) a special assessment
of an additional [ * ]% of the fees that would otherwise be payable in such
month. Lycos will not be required to customize the form of Newsletter Product
distributed to its users.
3.2 Private-Label E-Mail Systems. Lycos may, at its option, enable new
and existing Private-Label Users to Subscribe for Content Provider's Newsletter
Products.
SECTION 4. COMPENSATION.
4.1 Impression Fees. Content Provider shall pay to Lycos, on a
quarterly basis within one month after the end of each quarter, $[*] net for
each [ * ] copies of a Content Provider Newsletter Product emailed by Lycos to
subscribers to the Newsletter Products (the "CPA Fees"); provided that in no
event shall Content Provider pay Lycos on an annual basis in the aggregate less
than $[ * ], pursuant in such cost-per-[ * ] calculation regardless of the
number of actual emails sent to subscribers. If Content Provider fails to
generate and pay Lycos at least $[ * ] within such year period, then Content
Provider shall pay Lycos, within one month after the end of such year period,
the difference between the amounts actually paid to Lycos in such year period
and $[ * ].
4.2 Billing. Lycos shall bill Content Provider on a quarterly basis for
time aggregate fees due for the prior quarter. Each invoice shall be due and
payable thirty (30) days after the date of the invoice. All invoices not paid
within thirty (30) days of the date of invoice shall incur a finance charge in
the amount of one and one half percent (1.5%) of the invoice amount per month
until paid.
SECTION 5. CONTENT OWNERSHIP AND LICENSE. Content Provider will retain
all rights, title and interest in and to its content, subject to a limited
license necessary to perform this Agreement.
SECTION 6. TERMS. The term ("Term") of this Agreement shall commence on
the Effective Date and continue for one year unless terminated earlier as
provided in Section 12 below. This Agreement shall renew automatically for
successive one-year period unless either party gives written notice of
non-renewal to the other party at least thirty (30) days print to any such
renewal date.
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SECTION 7. MARKS. To the extent distribution of Content Provider's
Newsletter Products is deemed a use, public display, transmission, distribution
or reproduction of the Newsletter Products or the intellectual property of
Content Provider, Content Provider hereby grants Lycos a non-transferable
(except as provided herein), royalty-free, worldwide license to use, publicly
display, transmit, distribute and reproduce the Newsletter Products and the
intellectual property of Content Provider during the Term solely for the
purposes described herein. In addition, Lycos hereby grants to Content Provider
a non-exclusive, non-transferable license to reproduce and display Lycos'
trademarks, service marks, logos and the like solely for the purposes specified
in this Agreement. Content Provider hereby grants Lycos a non-exclusive,
non-transferable license to reproduce and display Content Provider's trademarks,
service marks, logos and the like solely for the purposes specified in this
Agreement. Except as expressly stated herein, neither party shall make any other
use of the other party's marks. Upon request of either party, the other party
shall provide appropriate attribution of the use of the requesting party's
marks. (e.g., "Go Get It(R) is a registered service mark of Lycos, Inc. All
Rights Reserved."). Such licenses shall terminate automatically upon the
effective date of expiration or termination of this Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Each party hereby represents
and warrants as follows:
8.1 Corporate Power. Such party is duly organized and validly existing
under the laws of the state of its incorporation and has full corporate power
and authority to enter into this Agreement and to carry out the provisions
hereof.
8.2. Due Authorization. Such party is duly authorized to execute and
deliver this Agreement and to perform its obligations hereunder.
8.3. Binding Agreement. This Agreement is a legal and valid obligation
binding upon it and enforceable with its terms. The execution, delivery and
performance of this Agreement by such party does not conflict with any
agreement, instrument or understanding, oral or written, to which it is a party
or by which it may be bound, nor violate any law or regulation of any court,
governmental body or administrative or other agency having jurisdiction over it.
8.4. Intellectual Property Rights.
a. Content Provider has the full and exclusive right to grant
or otherwise permit Lycos to copy, distribute, display and use Content
Provider's intellectual property associated with Content Provider's
Newsletter Products, and Consent Provider is aware of no claims by any
third parties adverse to any of such intellectual property rights.
b. Lycos has the full and exclusive right to grant or
otherwise permit Content Provider to scud its Newsletter Products to
users of MailCity or Private-Labeled E-Mail Systems, and Lycos is aware
of no claims by any third parties adverse to any of such intellectual
property rights.
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c. If either party's (the "Infringing Party") intellectual
property rights are alleged or held to infringe the intellectual
property rights of a third party, the Infringing Party shall, at its
own expense, and in its sole discretion, (1) procure for the
non-Infringing Party the right to continue to use the allegedly
infringing intellectual property or (2) replace or modify the
intellectual property to make it non-infringing; provided, however, if
neither option is possible or economically feasible and if the
inability to use such intellectual property would cause a material
breach of this Agreement (as determined by the non-Infringing Party),
the infringing Party may terminate this Agreement.
The representations and warranties and covenants in this Section 8 are
continuous in nature and shall be deemed to have been given by each party at
execution of this Agreement and at each stage of performance hereunder. These
representations, warranties and covenants shall survive termination or
expiration of this Agreement.
SECTION 9. LIMITATION OF WARRANTY.
EXCEPT AS EXPRESSLY WARRANTED IN SECTION 8 ABOVE, EACH PARTY EXPRESSLY DISCLAIMS
ANY FURTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LYCOS
MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
LYCOS SITE, AND LYCOS SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS RELATED THERETO. LYCOS SPECIFICALLY DISCLAIMS ALL
LIABILITY FOR THE CONTENT PROVIDER SITE, THE CONTENT PROVIDER NEWSLETTER
PRODUCTS AND THE CONTENT THEREIN, AND CONTENT PROVIDER SPECIFICALLY DISCLAIMS
ALL LIABILITY FOR THE LYCOS SITE AND THE CONTENT THEREIN (NOT PROVIDED BY
CONTENT PROVIDER).
SECTION 10. INDEMNIFICATION.
10.1. Content Provider Indemnity. Content Provider will at all times
defend, indemnify and hold harmless Lycos and its officers, directors,
shareholders, employees, accountants, attorneys, agents, successors and assigns
from and against any and all third party claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, arising out of or
related to any breach of any warranty, representation, covenant or agreement
made by Content Provider in this Agreement. Lycos shall give Content Provider
prompt written notice of any claim, action or demand for which indemnity is
claimed. Content Provider shall have the right, but not the obligation, to
control the defense and/or settlement of any claim in which it is named as a
party and which arises as a result of Content Provider's breach of any warranty,
representation, covenant or agreement under this Agreement. Lycos shall have the
right to participate in any defense of a claim, by Content Provider with counsel
of Lycos' choice at Lycos' own expense. The foregoing indemnity is conditioned
upon: prompt written notice by Lycos to Content Provider of any claim, action or
demand for which indemnity is claimed; complete control of the defense and
settlement thereof by content Provider; and such reasonable cooperation by Lycos
in the defense as Content Provider may request.
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10.2 Lycos Indemnity. Lycos will at all times defend, indemnify and
hold harmless Content Provider and its officers, directors, shareholders,
employees, accountants, attorneys, agents, successors and assigns from and
against any and all third party claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, arising out of or
related to any breach of any warranty, representation, covenant or agreement
made by Lycos in this Agreement. Content Provider shall give Lycos prompt
written notice of any claim, action or demand for which indemnity is claimed.
Lycos shall have the right, but not the obligation, to control the defense
and/or settlement of any claim in which it is named as a party. Content Provider
shall have the right to participate in any defense of a claim by Lycos with
counsel of Content Provider's choice at Content Provider's own expense. The
foregoing indemnity is conditioned upon prompt written notice by Content
Provider to Lycos of any claim, action or demand for which indemnity is claimed;
complete control of the defense and settlement thereof by Lycos; and such
reasonable cooperation by Content Provider in the defense as Lycos may request.
10.3 Settlement. Neither party shall, without the prior written consent
of the other party, settle, compromise or consent to the entry of any judgment
with respect to any pending or threatened claim unless the settlement,
compromise or consent provides for and includes an express, unconditional
release of all claims, damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, against the indemnified party.
SECTION 11. CONFIDENTIALITY, PRESS RELEASES
11.1 Non-Disclosure Agreement. The parties agree and acknowledge that,
as a result of negotiating, entering into and performing this Agreement, each
party has and will have access to certain of the other party's Confidential
Information (as defined below). Each party also understands and agrees that
misuse and/or disclosure of that information could adversely affect the other
party's business. Accordingly, the parties agree that, during the Term of this
Agreement and thereafter, each party shall use and reproduce the other party's
Confidential Information only for purposes of this Agreement and only to the
extent necessary for such purpose and shall restrict disclosure of the other
party's Confidential Information to its employees, consultants or independent
contractors with a need to know and shall not disclose the other party s
Confidential Information to any third party without the prior written approval
of the other party. Notwithstanding the foregoing, it shall not be a breach of
this Agreement for either party to disclose Confidential Information of the
other party if required to do so under law or in a judicial or other
governmental investigation or proceeding, provided the other party has been
given prior notice and the disclosing party has sought all available safeguards
against widespread dissemination prior to such disclosure.
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11.2. Confidential Information Defined. As used in this Agreement, the
term "Confidential Information" refers to: (i) the terms and conditions of this
Agreement; (ii) each party's trade secrets, business plans, strategies, methods
and/or practices; and (iii) other information relating to either party that is
not generally known to the public, including information about either party's
personnel, products, customers, marketing strategies, services or future
business plans. Notwithstanding time foregoing, the term "Confidential
Information" specifically excludes (A) information that is now in the public
domain or subsequently enters the public domain by publication or otherwise
through no action or fault of the other party; (B) information that is known to
either party without restriction, prior to receipt from the other party under
this Agreement, from its own independent sources as evidenced by such party's
written records, and which was not acquired, directly or indirectly, from the
other party; (C) information that either party receives from any third party
reasonably known by such receiving party to have a legal right to transmit such
information and not under any obligation to keep such information confidential;
and (D) information independently developed by either party's employees or
agents provided that either party can show that those same employees or agents
had no access to the Confidential Information received.
11.3. Press Releases. Lycos and Content Provider may jointly prepare
press releases concerning the existence of this Agreement and the terms hereof.
Otherwise, no public statements concerning the existence or terms of this
Agreement shall be made or released to any medium except with the prior approval
of Lycos and Content Provider or as required by law.
SECTION 12. TERMINATION. Either party may terminate this Agreement if
(a) the other party files a petition for bankruptcy or is adjudicated bankrupt;
(b) a petition in bankruptcy is filed against the other party and such petition
is not dismissed within sixty (60) days of the filing date; (c) the other party
becomes insolvent or makes an assignment for the benefit of its creditors
pursuant to any bankruptcy law; (d) a receiver is appointed for the other party
or its business; (e) upon the occurrence of a material breach of a material
provision by the other party if such breach is not cured within thirty (30) days
after written notice is received by the breaching party identifying time matter
constituting the material breach; (f) upon thirty (30) days written notice if
the other party's service, viewed as a whole, ceases to the competitive with
substantially similar services then being offered by third parties; (g) by
mutual consent of the parties; or (h) with 60 days written notice by the Content
Provider. In addition, Lycos may terminate this Agreement upon thirty (30) days
written notice to Content Provider in the event that Content Provider is subject
to a Change in Control (as defined below) by an entity whose primary business is
a provider of search, directory, navigation or community services on the
Internet, or an affiliate of such an entity. "Change in Control" means the
direct or indirect acquisition of 50% or more of the outstanding voting shares
of an entity, or the acquisition of the ability, by contract or otherwise, to
direct or control the management of that entity. Upon at least ninety (90) days
prior written notice to the other party, either party may terminate this
Agreement if any change occurs in the legal or regulatory requirements
applicable to the topic of this Agreement that would render performance of a
material obligation of the terminating party hereunder illegal or otherwise
subject to legal challenge, unless performance of such material obligation is
waived by the non-terminating party.
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SECTION 13. FORCE MAJEURE. In the event that either party is prevented
from performing, or is unable to perform, any of its obligations under this
Agreement due to any cause beyond the reasonable control of the party invoking
this provision, the affected party's performance shall be excused and the time
for performance shall be extended for the period of delay or inability to
perform due to such occurrence.
SECTION 14. RELATIONSHIP OF PARTIES. Content Provider and Lycos are
independent contractors under this Agreement, and nothing herein shall be
construed to create a partnership, joint venture or agency relationship between
Content Provider and Lycos. Neither party has authority to enter into agreements
of any kind out behalf of the other.
SECTION 15. ASSIGNMENT, BINDING EFFECT. Neither Lycos nor Content Provider
may assign this Agreement or any of its rights or delegate my of its duties
under this Agreement without the prior written consent of the other.
Notwithstanding the foregoing, Lycos may assign this Agreement to any successor
of Lycos.
SECTION 16. CHOICE OF LAW AND FORUM. This Agreement, its interpretation,
performance or any breach thereof, shall be construed in accordance with, and
all questions with respect thereto shall be determined by, the laws of the
Commonwealth of Massachusetts applicable to contracts entered into and wholly to
be performed within said state. Content Provider hereby consents to the personal
jurisdiction of the Commonwealth of Massachusetts, acknowledges that venue is
proper in any state or Federal court in the Commonwealth of Massachusetts,
agrees that any action related to this Agreement must be brought in a state or
Federal court in the Commonwealth of Massachusetts, and waives any objection
Content Provider has or may have in the future with respect to any of the
foregoing.
SECTION 17. GOOD FAITH. The parties agree to act in good faith with
respect to each provision of this Agreement and any dispute that may arise
related hereto.
SECTION 18. ADDITIONAL DOCUMENTS/INFORMATION. The parties agree to sign
and/or provide such additional documents and/or information as may reasonably be
required to carry out the intent of this Agreement and to effectuate its
purposes.
SECTION 19. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may
be executed in multiple counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. Facsimile signatures will be considered original signatures.
SECTION 20. NO WAIVER. The waiver by either party of a breach or a default
of any provision of this Agreement by the other party shall not be construed as
a waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right, power or privilege that it has, or may have hereunder, operate as a
waiver of any right, power or privilege by such party.
SECTION 21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
7
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SECTION 22. SEVERABILITY. Each provision of this Agreement shall be
severable from every other provision of this Agreement for the purpose of
determining the legal enforceability of any specific provision.
SECTION 23. NOTICES. All notice required to be given under this Agreement
must be given in writing and delivered either in hand, by certified mail, return
receipt requested, postage pre-paid, or by Federal Express or other recognized
overnight delivery service, all delivery charges pre-paid, and addressed:
If to Lycos: Lycos, Inc.
400-2 Totten Pond Road
Waltham, MA 02154
Fax No.: (781) 370-2600
Attention: General Counsel
If to Content Provider: Bolt Media, Inc.
304 Hudson Street, 7th, floor
New York, NY 10013
Fax No.: (212) 620.4315
Tel No.: (212) 620-3800
Attention: General Counsel
SECTION 24. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements between Lycos and
Content Provider concerning time subject matter, and cannot be amended except by
a writing signed by both parties. No party hereto has relied on any statement,
representation or promise of any other party or with any other officer, agent,
employee or attorney for the other party in executing this Agreement except as
expressly stated herein.
SECTION 25. LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THAT PARTY
HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM SUCH PARTY'S PERFORMANCE OR NON-PERFORMANCE PURSUANT TO
ANY PROVISION OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY'S SITE (INCLUDING
SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN NO EVENT SHALL EITHER PARTY
BE LIABLE FOR DAMAGES IN EXCESS OF THE AMOUNT RECEIVED BY SUCH PARTY UNDER THIS
AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, HOWEVER, THIS
SECTION SHALL NOT LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR (A) WILLFUL
AND MALICIOUS MISCONDUCT; (B) DIRECT DAMAGES TO REAL OR TANGIBLE PERSONAL
PROPERTY; (C) BODILY INJURY OR DEATH CAUSED BY NEGLIGENCE; OR (D)
INDEMNIFICATION OBLIGATIONS HEREUNDER.
8
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SECTION 26. SURVIVAL. All terms of this Agreement which by their nature
extend beyond its termination remain in effect until fulfilled, and apply to
respective successors and assigns.
This Special Delivery/Special Offer Agreement has been executed by the parties
effective as of the Effective Date.
LYCOS, INC. "CONTENT PROVIDER"
Name of Entity: Bolt Media, Inc.
By: Amy Weinberg
Name: /s/ Amy Weinberg By:/s/ Frank M. Harrison
Title: Account Manager Name: Frank M. Harrision
Title: CFO
Address: Address:
Lycos, Inc. Attn:
Attn: General Counsel Address:
400-2 Totten Pond Road
Waltham, MA 02154 Tel:
Tel: (650)983-4400 Fax:
Fax: (781) 370-2600
Effective Date: August 15, 1999
9
<PAGE> 1
EXHIBIT 10.9
[*]= CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS AND ASTERICKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.
AGREEMENT
This document entered into between the Parties as of the 17th day of November,
1999, constitutes a valid and binding agreement between Ford Motor Company, a
Delaware corporation with its principal place of business at The American Road,
Dearborn, Michigan 49121 ("Ford") and BOLT, Inc., a Delaware corporation with
its principal place of business at 304 Hudson Street, New York , New York 10013
("Bolt") (Ford and Bolt herein being referred to as the "Parties"). The Parties
have agreed as follows:
1. Scope
Ford has agreed to purchase media from Bolt on the Bolt.com web site,
which purchase will include: having Bolt create and maintain a
Cars.Bolt.com component of Bolt's web site; purchasing from Bolt
certain interactive content and interactive service elements; having
Bolt provide certain exclusive interactive features; and having Bolt
conduct certain market research through Bolt's Business Intelligence
Group.
2. Term
The term of this agreement ("Term") shall commence on January 1, 2000
and will continue through December 31, 2002 unless terminated earlier
pursuant to paragraph 4.(c), below; provided, however, that Ford and
Bolt will both have the option to terminate this agreement (i)
effective December 31, 2000 or (ii) December 31, 2001, by giving the
other party written notice of termination at least 60 days prior to
December 31, 2000 (in the case of (i) above) or at least 60 days prior
to December 31, 2001 (in the case of (ii) above).
3. Exclusivity
During the Term hereof Bolt agrees that Ford [*] and that Bolt [*].
For purposes of this Agreement, the term 'affiliates' shall be deemed
to include any wholly or partially owned subsidiary of Ford as well as
any Ford, Lincoln, Mercury, Volvo, Jaguar, Aston Martin, Mazda, or
Think! new or used vehicle dealer. Furthermore, Ford shall have
exclusivity within the automotive category on "bolt.com" and its
affiliated websites and Bolt shall
<PAGE> 2
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not accept content and/or advertising from any third parties with
respect to any and all promotion of cars, trucks, or other motor
vehicles; motor vehicle parts and accessories; services for motor
vehicles; credit or financing for motor vehicles; and the sale or
leasing of motor vehicles.
[*].
In addition, for one (1) year following the expiration or termination
of this agreement, Bolt agrees that any automotive website that it is
associated with will not duplicate specific applications developed for
or by Ford, or distinctive elements that are solely and exclusively
used by (for example, the "Build Your Own Dream Car" feature) the
Ford/Bolt Cars.Bolt.com website.
4. Payment Terms and Minimum Impressions Guarantee
(a) Ford will pay Bolt the sums set forth below for all media,
services, rights and materials provided by Bolt:
(1) the sum of $[*] within 45 days following the
execution and delivery of this agreement by both
parties,
(2) the sum of $[*] for the calendar year 2000, payable
in equal monthly installments of $[*] to be invoiced
at the end of each month and payable by Ford within
20 business days of receipt of Bolt's invoice,
(3) the sum of $[*] for the calendar year 2001 (provided
this Agreement is not terminated pursuant to Section
2), payable in equal monthly installments of $[*] to
be invoiced at the end of each month and payable by
Ford within 20 business days of receipt of Bolt's
invoice,
(4) the sum of $[*] for the calendar year 2002 (provided
this Agreement is not terminated pursuant to Section
2), payable in equal monthly installments of $[*] to
be invoiced at the end of each month and payable by
Ford within 20 business days of receipt of Bolt's
invoice.
(5)
(b) The payment of all sums by Ford shall be conditioned upon
Bolt meeting certain impression guarantee levels. An
impressions breakdown for calendar year 2000 has been
provided by Ford to Bolt
<PAGE> 3
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and is included in Exhibit A and serves as further definition
to Bolt's Insertion Order in Exhibit B. At least 60 days
before the end of calendar year 2000 Ford shall provide Bolt
with an impressions breakdown for calendar year 2001 and such
impressions breakdown will then become fully incorporated
into this agreement; and at least 60 days before the end of
calendar year 2001 Ford shall provide Bolt with an
impressions breakdown for calendar year 2002 and such
impressions breakdown will then become fully incorporated
into this agreement.
It is understood and agreed that distribution/banner delivery
may not increase or decrease by more than +/- 10% margin
bi-weekly. It is further understood and agreed that no
overages for any two-week period may be applied by Bolt
against a shortfall in any succeeding two-week period and no
shortfalls for any two-week period may be applied by Ford
against an overage in any succeeding two-week period. In the
event impression guarantees are not achieved as determined by
Ford, Bolt will provide Ford with make-goods with a [*]%
bonus or at Ford's option, Ford may take a credit against the
next monthly payment due under 4(a) above; provided, however,
that the calculation of impression guarantees with respect to
Interactive Service Elements and Exclusive Interactive
Features shall be made only after the launch of such elements
and features. Not withstanding the foregoing, the impressions
guaranteed for the first year, as detailed in Exhibit A, are
to be to be delivered prorated on a minimum, cumulative basis
of 15%, 35%, 65% and 100% for each of the quarters ended
March 31, June 30, September 30, and December 31.
(c) It is understood and agreed that all impression guarantees
will be measured against a third party adserver to be
selected by Ford, to track this buy, and measurement by this
third party will be used to conclusively determine if
impression guarantees have been met/ Tracking reports (proof
of performance) must be sent bi-weekly to Doug Weiland at
Ford's media buying agency Ford Motor Media, via fax to
313-964-2315 or e-mailed to [email protected],
with copies of tracking reports to be sent to Jamie Allison,
Internet & New Media Group, Ford Motor, via fax to
313-323-8170 or e-mailed to [email protected].
Subject to Section 5(a) herein, Ford reserves the right to
terminate this agreement in its entirety immediately in the
event impression
<PAGE> 4
4
guarantees are not met by Bolt for four (4) consecutive
tracking periods, i.e., 8 weeks, such periods of calculation,
as they relate to a particular element or feature set forth
on Exhibit A attached hereto, to commence upon the launch of
such element or feature.
(d) Amounts paid after their due date shall bear interest at the
rate of one and-one half percent (1 1/2%) per month (or the
highest rate permitted by law, if less) until paid in full.
In the event of any failure by Ford to make payment, Ford
will be responsible for all reasonable expenses (including
attorneys' fees) incurred by Bolt in collecting such amounts.
All payment amounts in this Agreement are in U.S. dollars and
are exclusive of any applicable taxes and shall be made free
and clear of, without reduction for, (and Advertiser shall be
responsible for and shall indemnify Bolt against) any
applicable taxes pertaining to the payments under this
Agreement (excluding taxes based upon the net income of
Bolt), provided that Bolt notifies Ford in writing of such
taxes within 6 months after the applicable invoice date.
Ford shall promptly furnish Bolt with tax receipts evidencing
the payment of any taxes referred to in the preceding
sentence.
5. Design, Implementation and and Content of "Cars.bolt.com" Website
(a) Creation of the "Cars.bolt.com" Website.
Bolt shall be primarily responsible for the creation of the
"Cars.bolt.com" website. Bolt agrees that it will consult
with Ford concerning the design, implementation, maintenance
and initial content of the "Cars.bolt.com" website; which
shall be subject to approval rights as set forth below, and
will ensure that the "Cars.bolt.com" website contains the
general topics set forth in the attached Exhibit A or other
features that the parties may agree upon from time to time.
Notwithstanding and without limiting the foregoing, the
Parties agree that the "Cars.bolt.com" website shall (i)
display the "Ford Oval" and/or other trademarks designated by
Ford "above the fold" and in a manner approved by Ford, and
(ii) shall contain privacy related statements and links to
privacy policies mutually agreed upon by the Parties and
consistent with other portions of this Agreement. Further,
Bolt agrees to use its best efforts to ensure that no Bolt
supplied content appearing on the "Cars.bolt.com" website
adversely impacts Ford's brand in any material respect. Prior
to the initial launch of, and any modifications to, the
"Cars.bolt.com"
<PAGE> 5
5
website, Bolt shall place such pages on a non-public server
and provide such individual as is designated by Ford with
notice thereof and access thereto. Ford shall have the right
to notify Bolt of its disapproval of any changes to content
(which shall include, without limitation, links to other
sites) and any material changes to other content which Ford
reasonably believes is harmful or detrimental to Ford or its
brand for a period of two business days (at least 48 hours)
from the time of receipt of notice from Bolt. Upon Bolt's
receipt of any such disapproval notice from Ford, Bolt will
delay the implementation of such disapproved changes until
the Parties resolve the appropriate issues raised in such
disapproval notice.
(b) Interactive Content Elements.
Bolt will develop certain chat rooms, moderated message
boards, and other interactive content in the normal course of
business and as otherwise mutually agreed upon by the
Parties. All such chat rooms, message boards and the like
shall be located on Bolt's servers and Bolt shall retain all
responsibility for maintenance, liability and support
therefore. Bolt expressly acknowledges and agrees that it
will not develop or endorse any message board, chat room,
other interactive element that contains any of Ford's
trademarks in its name (or that uses a trademark which is
likely to be confused with any of Ford's trademarks) or
otherwise undermines Ford's intellectual property rights.
(c) Launch Date
The site will be launched in accordance with the timetable
set forth in Exhibit A.
(d) Consumer Questions and Complaints
Bolt shall be responsible for all customer service relative
to the operation of the Cars.bolt.com website (which shall
include handling and resolution of any customer questions or
complaints) which it will perform in a prompt, courteous and
professional manner. Bolt will provide Ford with periodic
summaries of the nature of complaints received.
Notwithstanding the foregoing, any automotive product or
service related issues or concerns shall remain the
responsibility of Ford.
<PAGE> 6
6
(e) Availability
The Cars.bolt.com website shall be publicly available to
users approximately twenty-four (24) hours each day,
excepting necessary website maintenance and Internet
performance issues outside the reasonable control of Bolt.
(f) Traffic Reporting
Bolt shall provide Ford with aggregate periodic
traffic/website performance reports in a manner mutually
agreed upon by both Parties.
(g) Security
Each Party shall take all reasonable measures to prevent
unauthorized access to consumer data obtained through the
operation of the website, and any databases or other
sensitive material generated from or used in conjunction with
the website. Each Party shall immediately notify the other
Party of any known security breaches, and take all necessary
actions to promptly notify affected consumers and to remedy
such breach.
(h) Website Backup
Bolt.com will provide daily and permanent backups of the
information detailed in this Agreement and housed on its
servers. All data shall be backed up daily to two locations -
network storage and DAT. The DATs shall be stored off-site in
a fire-proofed, secure tape library. The network data shall
be stored for three weeks, and be available for content
replacements. Each Party shall also maintain a development
environment copy of web data for rapid content replacement.
6. Accuracy of Information Published on Bolt.com and Cars.Bolt.com
Each Party shall be responsible for the quality and accuracy of
information and content supplied by it contained on Bolt.com and
Cars.Bolt.com and any additional related sites or links which may be
created from time to time by Bolt.com. Ford shall use its commercially
reasonable efforts to provide content and advertising media for the
Cars.Bolt.com website in order to facilitate the impression guarantees
set
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7
forth on Exhibit A attached hereto. Ford acknowledges that it will
forfeit its right to terminate the agreement pursuant to Section 4(c)
herein in the event that it fails to provide such content and
advertising media.
7. Information Obtained From Consumers
[*]. Notwithstanding the foregoing, Bolt will not sell, transfer, or
otherwise provide such information to any third parties without the
prior written consent of Ford. All information shall be used only as
authorized by the user that provided the information, and in strict
compliance with Bolt's and Ford's privacy policies, as it may be
amended from time to time. Bolt will provide a link to such policies
governing the protection and use of user data on the "home page" of
the website as well as on those pages of the website where users are
required to provide personally identifying information. Any
non-conforming use of such information by either party shall
constitute a material breach of this Agreement and shall give such
party due cause to terminate this Agreement.
8. Intellectual Property
(a) Bolt Intellectual Property
As between the Parties, Bolt is, and shall remain, the owner
of all right, title and interest in and to the Bolt.com
website and the Cars.Bolt.com website (the "Bolt Intellectual
Property"), including, without limitation, all trademarks and
copyrights claimed by Bolt and all software, programs, text,
audio, images, graphics, "look and feel", animation, sound,
video, and other content associated with the Bolt
Intellectual Property, other than the Ford Content (as
defined below).
(b) Ford Intellectual Property
As between the parties, Ford is, and shall remain, the owner
of all right title and interest in and to all materials (such
as research reports) provided to Bolt by Ford in the course
of this Agreement (the "Ford Intellectual Property"),
including without limitation, all custom templates, and all
software, programs, text, images, graphics, "look and feel",
animation, sound, video, and other content associated with
the Ford Intellectual Property (the "Ford Content"). Upon
execution and delivery of this Agreement, Bolt assigns to
Ford all right, title and interest in and to the content
created by Bolt (i.e., its employees, agents, or
contractors), and intellectual property
<PAGE> 8
8
rights thereto (but will not be construed to include software
to develop such content) used solely and exclusively in the
Cars.Bolt.com channel in the course of this Agreement. Bolt
agrees to execute any and all necessary further documents
that Ford may reasonably request to fully vest any
intellectual property rights created in furtherance of this
Agreement and, if requested, to reasonably assist Ford, at
Ford's expense, to register such rights.
Bolt expressly agrees that any trademarks or applications
developed for use solely in association with the
Cars.Bolt.com website (i) will not combine any trademark of
Ford's with and trademark of Bolt (or of any third party),
and (ii) shall be the property of Ford, other than the
Cars.Bolt.com trademark (for example, any trademark that is
developed to identify a feature unique to this site and which
is not applicable to other Bolt channels, such as the "Design
Your Own Dream Car" feature).
(c) Trademark Licenses
Each Party grants to the other, during the Term of this
Agreement, a royalty-free, non-exclusive license to use,
reproduce and display the trademarks, service marks, and
design marks listed on the attached Exhibit E (collectively,
the "Marks") in connection with this Agreement. Each Party
may amend the list of trademarks it is licensing to the
other, at any time, upon written notice to the other Party.
Use of all Marks licensed pursuant to this Agreement shall
reflect the licensor's standards of quality. Furthermore, the
Party licensing the Marks shall have the right from
time-to-time, by prior arrangement of the Parties, to assess
the quality of services offered under the Marks and to review
advertising and promotional materials bearing the Marks to
ensure that these quality standards are upheld. Each of Bolt
and Ford expressly acknowledges and agrees that except as
expressly provided herein, no right, title, license or
interest in or to any mark owned by the other Party (or the
other party's Affiliates) is intended to be given to or
acquired by the other Party by the execution of or
performance of this Agreement. Each of Bolt and Ford
expressly agrees that it will not use any Mark of the other
Party for any purpose or activity except as expressly
authorized or contemplated herein.
9. Representations and Warranties
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Each of Bolt and Ford represents and warrants that: (1) it is a
corporation duly organized and validly existing and in good standing
under the laws of the state of its incorporation, (2) it has the full
power and authority to enter into and perform its obligations under
this Agreement, (3) it has obtained all permits, licenses, and other
governmental authorizations and approvals required for its performance
under this Agreement, and (4) the services to be rendered and the
materials provided by each Party neither infringe nor violate any
patent, copyright, trade secret, trademark, or other proprietary right
of any third party.
10. Provision of Advertising Materials
The content of all Ford advertisements will be supplied, or must be
approved in advance, by Ford. It is further understood and agreed that
no Ford advertisements may appear on any pages with content that in
Ford's judgment is inappropriate or otherwise inconsistent with Ford's
advertising and business policies. Bolt reserves the right to reject
or cancel any advertisement at any time if in Bolt's reasonable
judgment such advertisement may subject Bolt to civil or criminal
liability. In such case Bolt will discuss the matter with Ford and
allow Ford the opportunity to revise or replace the advertisement. All
banners from which minimum guaranteed impressions are calculated shall
be placed "above the scroll" at a screen resolution of 800 x 600 using
the Netscape or MSIE browsers v. 3.0 or better; provided, however,
that Bolt may place additional advertising "below the scroll". The
positioning of advertisements on any and all web pages shall be
mutually agreed upon by Bolt and Ford.
Bolt agrees that in addition to the restrictions set forth in this
agreement, it will not place any advertisements or links for "adult
sites" or advertisements, or sites that are generally considered
offensive, on any page containing a Ford advertisement. If Ford
determines that an advertisement is offensive, Bolt shall remove such
advertisement from such page within 4 hours of receiving notice from
Ford during normal business hours and 24 hours of receiving notice
from Ford at all other times.
11. Additional Bolt Obligations
(a) Bolt.com will place a static front page link to Cars.Bolt.com
prominently on the front page of Bolt.com throughout the Term
of this Agreement.
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(b) Bolt will provide Ford with quarterly market research studies
conducted by the BOLT Media, Inc. market research team
working closely with the Ford (or its designated
advertising/buying agency) market research team to ensure
optimum methodology before field work commences; provided,
that Ford will collaborate with Bolt.com on initial approach
and methodology and that such methodology shall require a
minimum sampling of 1,000 online interviews.
(c) Cars.bolt.com will place a static link to YoungDrivers.com or
its designated affiliates as identified by Ford for the
purposes of encouraging participation in drivers education.
(d) Bolt.com will render the disclaimer listed in Exhibit D on a
user's screen prior to any user entering the Design Your Own
Dream Car section of the cars.bolt.com channel. The user will
have to accept these terms before they are allowed access to
content in the Design Your Own Dream Car section.
12. Limitation of Liability
In the event that Bolt fails to publish an advertisement in accordance
with this Agreement, in the event that Bolt fails to deliver the
number of guaranteed impressions required herein, or in the event of
any other failure, technical or otherwise of such advertisement to
appear as provided herein, to the extent that such failures are not
due to a breach, directly or indirectly, of the terms herein by Ford,
the sole liability of Bolt and exclusive remedy of Ford shall be
limited to, at Ford's discretion, either the immediate termination of
this agreement, or placement of the advertisement at a later time in a
comparable position, or extension of the Term hereof until the total
impressions are delivered. SUBJECT TO SECTION 14 HEREOF, IN NO EVENT
SHALL BOLT BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL
SPECIAL LOST PROFITS, INDIRECT OR OTHER DAMAGES, WHETHER BASED IN
CONTRACT, TORT OR OTHERWISE, EVEN IF BOLT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. BOLT'S AGGREGATE LIABILITY UNDER THIS
AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY BOLT FROM
FORD PURSUANT TO THIS AGREEMENT. NOR SHALL FORD BE LIABLE UNDER THIS
AGREEMENT FOR ANY CONSEQUENTIAL SPECIAL LOST PROFITS, INDIRECT OR
OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EVEN IF
FORD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FORD'S
AGGREGATE LIABILITY UNDER THIS
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AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAYABLE BY FORD TO
BOLT PURSUANT TO THIS AGREEMENT.
13. Confidentiality
During the Term of this Agreement, and for a period of two years
following any end date, neither party will use or disclose any
Confidential Information of the other party, except as specifically
contemplated herein. The foregoing restriction does not apply to
information that (i) has been independently developed by the receiving
party without access to the other party's Confidential Information;
(ii) has become publicly known through no breach of this Section 11 by
the receiving party, (iii) has been rightfully received from a third
party authorized to make such disclosure, or (iv) is required to be
disclosed by law; provided that the disclosing party shall use its
best efforts to redact from such disclosure all information not
necessary to comply with such law. "Confidential Information" shall
mean (i) advertisements, prior to publication: (ii) the financial
terms of this Agreement and any Bolt statistics marked as
"Confidential" or "Proprietary" that shall be deemed Bolt Confidential
Information; and/or (iii) any information designated in writing or
identified orally at time of disclosure, by the disclosing party as
"confidential" or "proprietary" and confirmed as such by the
furnishing party in a written instrument delivered to the receiving
party within ten (10) working days after such oral delivery (such
confirmatory instrument specifically describing the relevant
Confidential Information and the date of its oral delivery).
14. Indemnification
Bolt and Ford agree to indemnify, defend, and hold harmless the other
Party (and its parents, subsidiaries, affiliates, successors, and
assigns) from and against all losses, liabilities, damages, actions,
claims, expenses and costs (including reasonable attorneys' fees)
which result or arise out of or in connection with any breach of this
Agreement or out of or in connection with any material supplied to the
other in furtherance of this Agreement.
15. Publicity
The Parties agree that no press releases, announcements or statements
of any kind will be made regarding this Agreement without the prior
written consent of the other Party, which consent shall not be
unreasonably withheld.
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16. Dispute Resolution
If a dispute arises between the parties that cannot be resolved
otherwise, the following procedure shall be implemented before either
Party pursues other available remedies except that nothing contained
herein shall prevent either Party from seeking injunctive relief from
a court where appropriate in order to maintain the status quo while
this procedure is being followed or to seek injunctive relief or any
other equitable or judicial remedy, in any applicable forum which
either Party deems necessary to protect its intellectual property
rights:
(a) Initial Meeting
The Parties shall hold a meeting promptly, attended by
persons with decision-making authority regarding the dispute,
to attempt in good faith to negotiate a resolution of the
dispute; provided, however, that no such meeting shall be
deemed to vitiate or reduce the obligations and liabilities
of the Parties hereunder or be deemed a waiver by a Party
hereto of any remedies to which such Party would otherwise be
entitled hereunder.
(b) Mediation
If, within ten (10) business days after such meeting, the
Parties have not succeeded in negotiating a resolution of the
dispute, they agree to submit the dispute to mediation in
accordance with the then-current rules of the Center for
Public Resources ("CPR"). The Parties will jointly appoint a
mutually acceptable mediator, seeking assistance in such
regard from the CPR if they have been unable to agree upon
such appointment within 10 days from the conclusion of the
negotiation period.
(c) Arbitration
The Parties agree to participate in good faith in the
mediation and negotiations related thereto for a period of
ten (10) business days. If the Parties are not successful in
resolving the dispute through the mediation, then the Parties
agree to submit the matter to binding arbitration in
accordance with the then-current commerical rules of the
American Arbitration Association, by a sole arbitrator.
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(d) Procedure
Mediation or arbitration shall take place in Dearborn,
Michigan unless otherwise agreed by the Parties. The
substantive and procedural law of the State of Michigan shall
apply to the proceedings, to the extent not inconsistent with
the then current commercial rules of the American Arbitration
Association. Equitable remedies shall be available in any
arbitration. Punitive damages shall not be awarded. This
clause is subject to the Federal Arbitration Act, 9 U.S.C.A.
Section 1 et seq. and judgment upon the award rendered by the
Arbitrator, if any, may be entered by any court having
jurisdiction thereof.
17. Miscellaneous
(a) No Agency or Partnership Relationship
In no event shall the Parties be deemed to have any agency or
partnership relationship between them as a result of this
Agreement.
(b) Assignment
This Agreement has been executed in consideration of the
Parties involved and therefore may not be assigned or
transferred to a third party without the prior written
consent of the other Party, such approval not be unreasonably
withheld. Notwithstanding the foregoing, Ford may assign this
Agreement without the prior consent of Bolt to any wholly or
partially owned subsidiary of Ford Motor Company.
(c) Entire Agreement, Amendment, Waiver
This Agreement embodies the entire agreement of the Parties
and supersedes any other agreements or understandings between
them, whether oral or written, relating to this subject
matter. No amendment or modification or waiver of a breach of
any term or condition of this Agreement shall be valid unless
in a writing signed by each of the Parties. The failure of
either Party to enforce, or the delay by either of them in
enforcing, any of their respective rights under this
Agreement will not be deemed a continuing waiver or a
modification of any rights hereunder and either Party may,
within the time provided by applicable law and consistent
with the provisions of
<PAGE> 14
14
this Agreement, commence appropriate legal proceedings to
enforce any or all of its rights.
(d) Notices
Any notice or other communication hereunder must be given in
writing and either (a) delivered in person, (b) transmitted
by facsimile transmission or other telecommunications
mechanism, (c) sent by nationally recognized overnight
courier service or (d) mailed by certified mail, postage
prepaid, receipt requested as follows:
If to Ford:
Ford Motor Company
Attn: Corporate Secretary
The American Road
Dearborn, MI 48121
If to Bolt:
Bolt, Inc.
Attn: Corporate Secretary
304 Hudson Street
New York, NY 10013
All notices personally delivered shall be deemed received on
the date of delivery. Any notice sent via facsimile
transmission shall be deemed received on the date shown on
the confirmation advice. Any notice by certified mail shall
be deemed to have been given on the date of receipt or
refusal thereof. The date of any notice by overnight mail
service shall be the date the airbill is signed by the
recipient. Either Party may change its address for the
receipt of notices by giving notice thereof to the other.
(e) Excusable Delays
Neither Party shall be liable for a failure to perform any of
its obligations hereunder that arise from causes or events
beyond its reasonable control and without its fault or
negligence.
(f) Partial Invalidity
Any provision of this Agreement which is found to be invalid
or unenforceable by any court in any jurisdiction will, as to
that
<PAGE> 15
15
jurisdiction, be ineffective to the extent of such invalidity
or unenforceability, and the invalidity or unenforceability
of such provision will not affect the validity or
enforceability of the remaining provisions hereof.
(g) Title and Headings
Titles and headings of articles and sections of this
Agreement are for convenience only and will not affect the
construction of any provision of this Agreement.
(h) Survival
Notwithstanding anything to the contrary contained herein, any
representations and warranties made by the Parties shall
survive the term of this Agreement for a period of six (6)
years.
(i) Counterparts
This Agreement may be executed in counterparts each of which will be
deemed an original, but all of which taken together will
constitute one and the same instrument.
(j) Governing Laws
This Agreement is governed by the internal laws of the State
of Michigan.
<PAGE> 16
16
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first above written.
BOLT Media, Inc. FORD MOTOR COMPANY
By: /s/ Frank M. Harrison By: /s/ James C. Schroer
------------------------------ ------------------------------
Name: Frank M. Harrison Name: James C. Schroer
---------------------------- ----------------------------
Title: Sr. VP Finance Title: VP-Marketing
--------------------------- ---------------------------
<PAGE> 17
17
EXHIBIT A
<TABLE>
<CAPTION>
---------------------------
Bolt Revised
-------- ---------------------------
Guaranteed
Minimum
Launch Page
Section Date CPM Loads Price
- ------- -------- ---------------------------
($) (M) ($)
<S> <C> <C> <C> <C>
CARS.BOLT.COM / FRONT PAGE 1/1/2000 $[*] [*] [*]
- --------------------------
INTERACTIVE CONTENT ELEMENTS:
- -----------------------------
[*] 1/1/2000 $[*] [*] [*]
[*] 7/1/2000 $[*] [*] [*]
[*] 1/1/2000 $[*] [*] [*]
[*] 1/1/2000 $[*] [*] [*]
INTERACTIVE SERVICE ELEMENTS:
- -----------------------------
[*] 3/1/2000 $[*] [*] [*]
[*] 3/1/2000 $[*] [*] [*]
[*] 4/1/2000 $[*] [*] [*]
[*] 4/1/2000 $[*] [*] [*]
[*] 3/1/2000 $[*] [*] [*]
[*] 2/1/2000 $[*] [*] [*]
EXCLUSIVE INTERACTIVE FEATURES:
- -------------------------------
[*] 5/1/2000 $[*] [*] [*]
[*] 4/1/2000 $[*] [*] [*]
BOLT.COM TARGETED UNITS:
- ------------------------
[*] 1/1/2000 $[*] [*] [*]
BOLT.COM ROS:
- -------------
[*] 1/1/2000 $[*] [*] [*]
$[*] [*] [*]
</TABLE>
<PAGE> 18
18
EXHIBIT B
[BOLT LOGO]
INSERTION ORDER
ORDER NUMBER: 99101
BOLT REPRESENTATIVE: Josh Weil
DATE: 11/1/1999
ADVERTISER
Ford Motor Company
Internet & New Media Group
Attn: Jamie Allison
Telephone: (313) 845-8202
Fax: (313) 845-8399
Email: [email protected]
- --------------------------------------------------------------------------------
BILL TO (CHECK ONE)
ADVERTISER: X
AGENCY: _____
IN-HOUSE AGENCY: _____
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
END AGENCY REVENUE
START DATE DATE RATE DISCOUNT TOTAL DUE PAYMENT SCHEDULE SHARE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
01/1/2000 12/31/2002 n/a n/a $[*] Please see payment schedule attachment n/a
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
GUARANTEED
LINK TO NUMBER OF
CREATIVE POSITION TEXT OF LINK URL IMPRESSIONS
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Please see creative [*]*
specification and brand
impression impressions,
guarantee attachment [*]**
brand
interactions
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
TERMS AND CONDITIONS: This insertion order is subject to the terms and
conditions ("Standard Terms") appearing on both sides of this Insertion Order,
and such Standard Terms are made a part of this insertion order by reference.
The signatory of this Insertion Order represents that he has read and agrees to
such Standard Terms.
<TABLE>
<S> <C> <C>
AUTHORIZED BY: PHONE: DATE:
------------------------------- ------------------------------ -------------------
PRODUCTION CONTACT: PHONE: DATE:
-------------------------- ------------------------------ -------------------
</TABLE>
PLEASE SIGN RETURN WITH DEPOSIT TO BOLT MEDIA, INC., AT 304 HUDSON STREET, NEW
YORK, NY 10003
*3 year impression levels are projected over 3 years based on year 1 CPMs (per
11/17/99 agreed terms)
<PAGE> 19
19
EXHIBIT C
[*]
<PAGE> 20
20
EXHIBIT D
I UNDERSTAND AND AGREE THAT WHEN I SUBMIT MY DREAM CAR IDEA THROUGH THE "DESIGN
YOUR OWN DREAM CAR" FEATURE ON CARS.BOLT.COM, I AM GIVING UP ALL COPYRIGHT AND
OTHER INTELLECTUAL PROPERTY RIGHT CLAIMS (OTHER THAN PATENT RIGHTS) I MAY HAVE
AGAINST FORD MOTOR COMPANY'S COPYING OR OTHERWISE USING MY DREAM CAR IDEA. I
FURTHER UNDERSTAND AND AGREE THAT FORD MOTOR COMPANY AND ITS SUBSIDIARIES ARE
UNDER NO OBLIGATION TO USE MY IDEA OR TO HOLD IT IN CONFIDENCE.
<PAGE> 21
21
EXHIBIT E
Ford Trademarks, Service Marks, Design Marks
- - Ford Oval
- - Ford Motor Company Script
- - Others to be added and amended as appropriate
<PAGE> 1
EXHIBIT 10.10
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS WITH ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
ANCHOR PROVIDER AGREEMENT
This agreement (the "Agreement") is made and entered into as of August 27, 1999
(the "Effective Date"), between Microsoft Corporation ("Microsoft"), with
offices at One Microsoft Way, Redmond, WA 98052-6399, and Bolt.com (the
"Company"), with offices at 304 Hudson Street, New York, NY 10013. Microsoft and
Company agree as follows:
SECTION 1. DEFINITIONS
"COMPANY LOGO" means the Company logo(s) and trademark(s) provided to
Microsoft for use in connection with the Service.
"COPY" means a single email delivered to a specific Subscriber
consisting of a reproduction (in whole or in part) of, and/or hypertext link to,
a specific version of the Newsletter.
"IPRs" means trade secrets, patents, copyrights, trademarks, service
marks, trade names, know-how, moral rights, rights of publicity and privacy, and
similar rights of any type under the laws of any governmental authority,
domestic or foreign, including all applications and registrations relating to
any of the foregoing.
"NEWSLETTER" means the publication to be provided by Company to
Microsoft, Copies of which will be distributed to Subscribers via the Service.
"REGISTRATION PAGES" means those web pages that are displayed to users
of the U.S. English language Hotmail service in a manner to permit such users to
register to receive the Copies and other third party content via the Service.
"SERVICE" means the WebCourier Service whereby a person registering or
registered for a U.S. English language Hotmail email account may also register
to receive generic third party content via the Hotmail service.
"SUBSCRIBER" means a Hotmail account that has consented to receiving the
Newsletter.
SECTION 2. MICROSOFT OBLIGATIONS
2.1 Service. Microsoft will provide Company with placement on the first
page of the Registration Pages consisting of Company or Newsletter name (at
Company's option) and a link to the Company Logo and a text description of the
Newsletter. Company will be listed in the Teens/Young Adults category (the
"Category"). Microsoft may modify the Registration Pages from time to time,
provided that Company receives reasonably comparable placement on the revised
pages as specified herein.
2.2 Providers. The Newsletters of not more than four (4) "Anchor
Providers" and one (1) "Premier Provider" may be referenced in the Category
(with the "Premier Provider" receiving the most prominent placement in the
Category). The "Anchor Providers" will be placed within the Category in
descending order based upon the level of compensation paid by each "Anchor
Provider" to Microsoft to appear in such Category.
2.3 Distribution. Subject to paragraph 3.1, Microsoft will deliver
Copies to Subscribers according to such schedules as mutually agreed upon by
Company and Microsoft.
2.4 Promotional Banners. Microsoft will provide Company with a monthly
credit of [ * ] promotional banners to be used in the Hotmail service. Such
promotional credits will be specified for use in particular months, and may not
be transferred to any other month or redeemed for cash. Unused promotional
banner credits will expire at the end of the month specified for use. Company
will create and deliver to Microsoft all promotional banners for review at least
ten (10) days prior to the first run date for such banner as designated by
Company. All promotional banners shall meet all specifications and submission
requirements provided by Microsoft, and will contain a link to such Hotmail URL
as Microsoft may designate.
2.5 Hotmail Promotion. Microsoft will use reasonable efforts to promote
the Newsletter to new and current Hotmail users through Hotmail standard
promotional vehicles.
SECTION 3. COMPANY OBLIGATIONS
3.1 Delivery and Specifications. Company will make the Newsletter
available to Microsoft at a specified URL and on a delivery schedule agreed upon
by the parties in writing. The Company Logo, Newsletter text description and the
1
<PAGE> 2
Newsletters are all subject to specifications and submission deadlines (as
applicable) established by Microsoft and set forth in Appendix A, as the same
may be modified from time to time by Microsoft upon notice. Company will deliver
the Company Logo and Newsletter text description to Microsoft in the manner
directed by Microsoft. Company acknowledges that time is of the essence in
providing the foregoing to Microsoft, and the Company's failure to meet the
foregoing timing requirements or any applicable specifications may delay or
prevent delivery of Copies hereunder.
3.2 License. Company hereby grants Microsoft a world-wide,
non-exclusive, royalty-free license to:
(a) reproduce, promote, market, distribute, display, transmit,
download, upload, edit, modify and otherwise use the Newsletter as
reasonably anticipated to fulfill Microsoft's obligations under this
Agreement; and
(b) reproduce, display, transmit and otherwise use the Company
Logo and Newsletter text description in connection with (i) providing
the Service and Newsletter to Subscribers, and (ii) marketing and
promoting the Service and Newsletter.
3.3 MSN Ad Buy. Prior to September 30, 1999, Company will purchase from
Microsoft an aggregate of [*] of advertising on Microsoft properties, at an
average CPM rate of [*], to be displayed during the Term (the "Media Buy").
Terms of Media Buy (including the location, number of ad requests, ad types, and
dates), will be agreed upon by both parties in writing or by Microsoft Insertion
Order. The Media Buy will be made pursuant to Microsoft's standard terms and
conditions and must be completed during the Term. If Company fails to complete
the Media Buy prior to termination or expiration of the Term, Company will
immediately pay such amount to Microsoft all remaining unpaid amounts of the
Media Buy.
3.4 Limitations. The Newsletter may not contain, promote, market,
advertise, distribute, offer to distribute, link (either directly or, if with
the knowledge of Company, indirectly) to or otherwise be related to content
that:
(a) promotes, markets or advertises competing e-mail, newsletter
and/or other communication products whether offered by Company or a
third party (e.g., Lycos, Excite and other services designated by
Microsoft);
(b) is inappropriate, obscene, defamatory, libelous, slanderous,
profane, indecent or unlawful;
(c) infringes or misappropriates third party IPRs;
(d) constitutes "hate speech", whether directed at an individual
or a group, and whether based upon the race, sex, creed, national
origin, religious affiliation, sexual orientation or language of such
individual or group;
(e) promotes or contains viruses, worms, corrupted files, cracks
or other materials that are intended to or may damager or render
inoperable software, hardware or security measures of Microsoft,
Subscribers or any third party;
(f) facilitates or promotes gambling, or the sale or use of
liquor, tobacco products or illicit drugs;
(g) facilitates, promotes or forwards illegal contests, pyramid
schemes or chain letters; or
(h) otherwise restricts or inhibits any person's use or enjoyment
of Hotmail or the Service.
Microsoft may, but is under no obligation to, review the Newsletter, and may
refuse to host or make the Newsletter available to Subscribers in whole or in
part if Microsoft determines that the Newsletter violates the foregoing
limitations or such other limitations as Microsoft may adopt from time to time.
3.5 Subscriber Information. All information regarding Subscribers
collected through the Service constitutes Confidential Information (as that term
is used in Section 9) of Microsoft, and is subject to the confidentiality
requirements of Section 9. Notwithstanding the foregoing, information obtained
by Company directly from Subscribers will not constitute Confidential
Information of Microsoft and may be used by Company from time to time; provided,
Company does not collect, use or disclose such information in any manner that
identifies the subject as a Subscriber or Hotmail customer.
3.6 Changes to Newsletter. Company will provide Microsoft with thirty
(30) days' prior written notice of any material change to the nature or intended
audience of the Newsletter. Microsoft will have the option to terminate this
Agreement with respect to each Newsletter for which such a change is anticipated
or implemented upon written notice.
SECTION 4. CONSIDERATION
4.1 Advance. Company will prepay Microsoft an advance of the fees set
forth in paragraph 4.2 in an amount equal to [*] (the "Advance"). The Advance is
a non-refundable,
2
<PAGE> 3
guaranteed payment to Microsoft. The Advance will be rendered to Microsoft in
four (4) equal installments on a quarterly basis (i.e., every three (3) months
during the Term). The first payment hereunder is due when this Agreement is
signed and returned to Microsoft. Microsoft will invoice Company for the three
(3) remaining payments approximately thirty (30) days prior to the beginning of
each subsequent quarter, and Company will pay such invoiced amounts on or before
the first day of each such subsequent quarter. Notwithstanding the foregoing,
upon termination or expiration of this Agreement, other than by Company pursuant
to paragraph 5.2 or Microsoft pursuant to paragraph 5.3, Company will
immediately pay Microsoft any amounts of the Advance not yet paid.
4.2 Fee. Company will pay Microsoft the following fees as consideration
for Microsoft distributing the Newsletter to Subscribers:
(a) for Newsletters scheduled to be distributed two (2) to seven
(7) times per week, [ * ] per Copy distributed to a Subscriber; and
(b) for Newsletters scheduled to be distributed one (1) time per
week, [ * ] per Copy distributed to a Subscriber.
4.3 Distribution Adjustment. On a quarterly basis (including, at the end
of the Term), Microsoft will compare the number of Copies actually distributed
hereunder against the Advance paid for such quarter (or the Term). If the fees
incurred pursuant to paragraph 4.2 for the number of Copies actually distributed
during such quarter (or the Term) are greater than the portion of the Advance
paid for such quarter (or the Term), Microsoft will invoice Company for the
difference at the applicable rates noted in paragraph 4.2. If at the end of the
Term the fees (including the Advance) received by Microsoft hereunder exceed the
amount of the fees incurred by Company for distribution of Copies hereunder,
Microsoft will refund the difference to Company; except that in no event will
Microsoft be required to refund or otherwise return to Company any portion of
the Advance.
4.4 Invoice and Payment. Within thirty (30) days after the date of an
invoice, Company will pay Microsoft all amounts owing pursuant to such invoice
in readily available funds. Amounts not paid when due under this Agreement will
accrue interest at a rate of one and one-half percent (1.5%), compounded on a
monthly basis. Microsoft reserves the right to immediately suspend distribution
of the Newsletter if Company fails to make timely payment of any amounts owing
hereunder. All payments of amounts owing to Microsoft will be made at the
following location or such other location designated by Microsoft in writing:
Microsoft Corporation
PO Box 7247 - 7123
Philadelphia PA 19170-7123
4.5 Reports. Microsoft will provide Company with monthly reports setting
forth the number of Subscribers receiving Copies and the total number of Copies
delivered per month.
4.6 Taxes. The fees, advances and other amounts owing to Microsoft
pursuant to this Agreement do not include taxes or other governmental fees.
Company will pay all taxes and other governmental fees arising out of or related
to all transactions undertaken pursuant to this Agreement, other than taxes on
Microsoft income and revenue, and will provide Microsoft with appropriate
evidence of such payment upon request.
4.7 Audits. Microsoft will maintain during the Term and for at least
twelve (12) months thereafter all of its regular books of account relating to
Copies distributed via the Service and amounts owing to Microsoft hereunder. If
Company believes in good faith that Microsoft invoiced Company in excess of
amounts actually owing pursuant to paragraph 4.2, Company will have the right at
Company's sole expense to audit such books of account, subject to the following:
(a) Company will provide Microsoft with at least thirty (30) days' prior written
notice of such audits; (b) audits may occur only during Microsoft's regular
business hours, and at the location where such books of account are maintained
by Microsoft or such other location reasonably specified by Microsoft; (c)
Company will cooperate with Microsoft in good faith to avoid and limit any
disruption of such audits to Microsoft's business and operations; (d) such audit
will be conducted by an independent accounting firm, acceptable to Microsoft and
compensated by Company in a manner that is not affected by the outcome of the
audit (e.g., no contingency fees); (e) the auditors provide Microsoft with all
results and other communications to Company related to the audit at the same
time such auditors provide such communications to Company; (f) audits may not
occur more than once during the Term, may not exceed three (3) consecutive days
and must be completed within twelve (12) months after the end of the Term; (g)
the auditors provide their final conclusions of the audit to Company and
Microsoft simultaneously and within thirty (30) days after the last day of the
audit. Any information disclosed to or otherwise learned by Company or its
auditors in connection with an audit conducted pursuant to this paragraph
constitutes Confidential Information (as the term is used in Section 9) of
Microsoft and subject to the limitations on use set forth in paragraph 9.1.
3
<PAGE> 4
SECTION 5. TERM AND TERMINATION
5.1 Term. This Agreement will be in effect for a period of twelve (12)
months commencing upon the Effective Date ("Term").
5.2 Termination. Either party may immediately terminate this Agreement
upon written notice if the other party breaches the Agreement in any material
respect, and the breach remains uncured for a period of ten (10) days following
the breaching party's receipt of written notice of the breach from the
non-breaching party. If Company terminates the Agreement pursuant to this
paragraph, Microsoft will refund to Company a pro rata portion of the Advance,
less any fees owing by Company to Microsoft.
5.3 Microsoft Termination. Notwithstanding paragraph 5.1, Microsoft may
terminate this Agreement upon thirty (30) days' prior written notice if
Microsoft ceases to offer the Service. In such a case, Microsoft will return to
Company a pro rata portion of the Advance actually paid to Microsoft (less any
additional fees incurred by Company hereunder), and at Company's option will
refund to Company any amounts for advertising purchased by Company pursuant to
paragraph 3.3, but not used as of the date of such termination. If fees incurred
by Company hereunder exceed the amount of the pro rated Advance actually paid by
to Microsoft as of the date of termination, Microsoft will invoice, and Company
will promptly pay, any additional amounts owing hereunder.
5.4 Survival. This paragraph and Sections 4 (Consideration), 6
(Representations and Warranties), 7 (Indemnification), 8 (Limitation of
Liability), 9 (Confidentiality), and 10 (General) shall survive any termination
of this Agreement, together with all obligations, rights and causes of action
that may have accrued prior to termination, along with any other provisions that
might reasonably be deemed to survive such termination.
SECTION 6. REPRESENTATIONS AND WARRANTIES
6.1 Company. Company represents and warrants that:
(a) Company has the full corporate rights, power and authority to
enter into this Agreement and to perform the acts required of it
hereunder;
(b) Company's execution and performance of this Agreement do not
and will not violate any agreement to which Company is a party or by
which Company is otherwise bound, or any applicable law, rule or
regulation;
(c) the Newsletter does not and will not violate any third party
IPRs or give rise to any obligation for the payment of any sums to any
third party by Microsoft or Microsoft's successors in interest;
(d) the Newsletter (in whole or in part) does not and will not
violate the limitations set forth in paragraph 3.4;
(e) it will not harvest or otherwise collect through the Service
information about Subscribers, including e-mail addresses, without
Subscribers' express consent;
(f) it will not link the Service or Hotmail to any unsolicited
communication sent to any third party, or otherwise use or mention the
Service or Hotmail in connection with any such unsolicited
communication; and
(g) it is a member in good standing of an industry recognized
online privacy organization (e.g., the TRUST-E Program), and it will
adhere to the information gathering, dissemination, privacy protection
and other practices specified by such organization.
6.2 Microsoft: Microsoft represents and warrants to the Company that has
the full corporate rights, power and authority to enter into this Agreement and
to perform the acts required of it hereunder.
6.3 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE
SERVICE, NEWLETTER, HOTMAIL, AND ANY MATERIALS OR OTHER SERVICES PROVIDED BY OR
ON BEHALF OF MICROSOFT PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND WITH
ALL DEFECTS. MICROSOFT HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND
CONDITIONS, EXPRESS OR IMPLIED, OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, TITLE, NONINFRINGEMENT, COMPATIBILITY, SECURITY, AND CONDITION
OR OPERATION OF THE FOREGOING. MICROSOFT DOES NOT WARRANT THE CONTINUED OR
UNINTERRUPTED OPERATION OF THE INTERNET, SERVICE, OR HOTMAIL.
4
<PAGE> 5
SECTION 7. INDEMNIFICATION
7.1 Company. The Company will indemnify and hold harmless Microsoft
against, and will defend or settle at the Company's expense, any and all
actions, claims, liabilities, losses, damages, costs, expenses, judgments and
penalties, including but not limited to reasonable attorneys' fees, or other
proceeding brought by third parties against Microsoft to the extent based on a
claim that, if true would (a) result from any misrepresentation or breach of
representation or warranty of the Company contained herein, or (b) result from
any breach of any covenant or agreement to be performed by Company hereunder.
7.2 Microsoft. Microsoft will indemnify and hold harmless the Company
against, and will defend or settle at Microsoft's expense, any action actions,
claims, liabilities, losses, damages, costs, expenses, judgments and penalties,
including but not limited to reasonable attorneys' fees, or other proceeding
brought by third parties against Company to the extent based on a claim that, if
true would (a) result from any misrepresentation or breach of representation or
warranty of Microsoft contained herein, or (b) result from any breach of any
covenant or agreement to be performed by Microsoft hereunder.
7.3 Procedure. The party to be indemnified , defended and held harmless
pursuant to paragraph 7.1 or 7.2 will: (a) provide the indemnifying party with
prompt written notice of any such claim, (b) permit the indemnifying party to
assume and control the defense of such action, and (c) not enter into any
settlement or compromise of any such claim without the indemnifying party's
prior written consent (not to be unreasonably withheld). The indemnifying party
will pay any and all costs, damages, and expenses (including but not limited to
reasonable attorneys' fees and costs) awarded against or incurred by the
indemnified party in any such action or proceeding attributable to any such
claim. The indemnified party may also retain counsel at its own expense in
connection with the defense or settlement of any such claim.
SECTION 8. LIMITATION OF LIABILITY
8.1 Limitation of Remedies. EXCEPT TO THE EXTENT ARISING PURSUANT TO
SECTION 7 OR A BREACH OF SECTION 9, UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, SUCH AS, BUT
NOT LIMITED TO, LOSS OF REVENUE, PROFITS, ACCOUNTS OR LOST BUSINESS, AND WHETHER
ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
8.2 Limitation of Damages. EXCEPT TO THE EXTENT ARISING PURSUANT TO
SECTION 7 OR A BREACH OF SECTION 9, UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR DAMAGES IN EXCESS OF AMOUNTS ACTUALLY PAID AND
OWING TO MICROSOFT HEREUNDER.
SECTION 9. CONFIDENTIALITY
The parties acknowledge and agree that the Microsoft Non-Disclosure Agreement
dated as of ________________ ("NDA") entered into by and between the parties
applies to this Agreement as if fully set forth herein and that all of the terms
of this Agreement (including but not limited to its existence) and all
discussions and negotiations related thereto are considered Confidential
Information (as that term is defined in the NDA) of Microsoft under the NDA. If
Company has not executed a NDA, Company agrees to sign the NDA attached hereto
as Exhibit B and return it to Microsoft with this Agreement. Upon termination or
expiration of this Agreement, each party will destroy (or upon the other party's
request return) any and all Confidential Information of the other party in its
possession or control.
5
<PAGE> 6
SECTION 10. GENERAL.
10.1 Notices. All notices and requests in connection with this Agreement
will be deemed given (a) when personally delivered, (b) when delivered by
facsimile or telex, (c) the next business day following delivery to a nationally
recognized courier service guarantying next-day delivery, or (d) five (5)
business days after being placed in the United States mail, postage prepaid,
certified or registered, return receipt requested, as follows:
Notices to Company: Notices to Microsoft:
- ------------------- ---------------------
Bolt.com Microsoft Corporation
304 Hudson Street One Microsoft Way
New York, NY 10013 Redmond, WA 98052-6399
Attn.: Justin Nesci Attn.: Chuck Frizelle
Telephone: (212) 620-5900 x250 Telephone: (425) 705-2179
Fax: (212) 620-4315 Fax: (425) 936-7329
Copy to:
Microsoft Law & Corporate Affairs
One Microsoft Way
Redmond, WA 98052
Fax: (425) 936-7329
Attn.: Gregory Ritts
or to such other address as the party to receive the notice or request so
designates by at least ten (10) days prior written notice to the other party.
10.2 Independent Contractor. Company is an independent contractor, and
nothing in this Agreement will be construed as creating an employer-employee
relationship, partnership, or joint venture between the parties.
10.3 Governing Law. This Agreement will be governed by the laws of the
State of Washington. Company hereby irrevocably consents to the personal
jurisdiction of, and exclusive venue for any legal proceeding commenced by or on
behalf of Company in, the state and federal courts sitting King County,
Washington, USA. In any suit or action to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
will be entitled to recover its costs, including reasonable attorneys' fees.
10.4 Assignment. Company may not assign, sub-license, transfer, encumber
or otherwise dispose of this Agreement without Microsoft's prior written
approval. Any attempted assignment, sub-license, transfer, encumbrance or other
disposal of this Agreement by Company without Microsoft's prior written approval
will be void and will constitute a material default and breach of this
Agreement. Except as otherwise provided, this Agreement will be binding upon and
inure to the benefit of the parties' successors and lawful assigns.
10.5 Headings. The section headings used in this Agreement are intended
for convenience only and will not be deemed to affect in any manner the meaning
or intent of this Agreement or any provision hereof.
10.6 Modification. This Agreement may not be modified except by a
written agreement dated subsequent to the date of this Agreement and signed on
behalf of Company and Microsoft by their respective duly authorized
representatives.
10.7 Waiver. No waiver of any breach of this Agreement will constitute a
waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver will be effective unless made in writing and
signed by the waiving party.
10.8 Severability. To the extent that any provision of this Agreement
conflicts with governing law or any provision is held to be null, void or
otherwise ineffective or invalid by a court of competent jurisdiction, (a) such
provision will be deemed to be restated to reflect as nearly as possible the
original intentions of the parties in accordance with applicable law, and (b)
the remaining terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect.
10.9 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together will constitute one agreement
10.10 Entire Agreement. Subject to Section 9, this Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements or communications
between the parties.
The parties have caused this Agreement to be executed by their duly authorized
representatives as of the date written above.
6
<PAGE> 7
Microsoft Company
MICROSOFT CORPORATION BOLT.COM
One Microsoft Way 304 Hudson Street
Redmond, WA 98052-6399 New York, NY 10013
By /s/ Gordon E. Wood /s/ Frank M. Harrison
-------------------------- ------------------------------------
(Sign) (Sign)
Gordon E. Wood
- ----------------------------- ------------------------------------
Name (Print) Name (Print)
Director
- ----------------------------- ------------------------------------
Title Title
9/9/99
- ----------------------------- ------------------------------------
Date Date
------------------------------------
Company's Federal Employer ID Number
7
<PAGE> 8
EXHIBIT A
SPECIFICATIONS
A. Specifications for Anchor Providers
a. Company logo: 100x 30, 1.5K file size, gif, non-animated,
non-clickable
b. Newsletter description: 215 Latin characters(including spaces)
that briefly describes the newsletter
c. Company name: 20 characters
d. Promotional banners
i. 468x60, 12K file size, gif or jpeg
ii. At Microsoft discretion, Company must include Hotmail
and/or WebCourier logo, making it clear to the user that
the banner is a co-branded banner.
iii. URL determined by Microsoft
iv. Banner must meet standard Microsoft guidelines set forth
in Standard Terms and Conditions
B. Hosting Schedule
a. Company will make the newsletter content available to Microsoft
according to a schedule agreed upon by Microsoft and Company.
b. Company will run newsletter content through an HTML validator
program to catch any errors before posting it for pickup.
c. Company will provide Microsoft with the URL of the newsletter
content for Microsoft pick-up.
d. Company may not alter the newsletter content more than once each
day.
C. Delivery Schedule
a. Microsoft will distribute the Newsletter to Subscribers
according to the schedule agreed upon by Microsoft and Company.
NEWSLETTER TECHNICAL REQUIREMENTS
1. Code must be syntactically correct, and resemble the following;
[HTML]
[BODY]
............
[/BODY]
[/HTML]
Note: Tables are good if you want the page to retain its attributes,
but if any of the above tags are missing, it WILL NOT work. Code
that is not clean will run into problems with WebCourier
automated content pickups and page display.
2. No Relative Links.
The following are examples of relative links
[a href="/hotmail/link.html"]
[img src="../../../../hotmail/img.gif"]
All links must have full headings similar to these:
[a href="http://www.hotmail.com/hotmail.html"]
[img src="http://www.hotmail.com/hotmail/img.gif"]
3. Use NO JavaScript/DHTML.
For security reasons, we do not allow JavaScript or DHTML.
4. We accept only the GET method instead of the POST method in Form tags
(i.e., [FORM] tags should have "METHOD=GET".
Scripts receiving [FORM] input must accept the "GET" method.
5. Links may NOT open new browser windows.
6. Tags that are opened must be closed.
7. Suggestion: Code for a maximum resolution screen size of 800 x 600. For
best results across all platforms, use a minimum of 600 pixels.
8. Setting Background Colors:
If you wish to set a background color, then set it in a table around
your HTML, rather than using body tags. DO NOT USE BODY TAGS. DO NOT USE
GLOBAL STYLE TO SPECIFY COLORS. DO NOT SET A BODY BACKGROUND. Use nested
styles within the table. Anything with body tags will be stripped out or
ignored.
1
<PAGE> 9
Example of what NOT to do:
[body bgcolor="#FFFFFF" text="#000000" link="#003366" vlink="#003366"
alink="#003366"]
What you can do:
- create CSS classes specific to your content, or
- create all styles in-line
9. Variable Subject Lines: (You must inform the Program Manager to turn ON
this feature.) Subject must be enclosed in the [title]...[/title] tags
on same line. 46 character max, including spaces. SUBJECT LINE MUST
BEGIN WITH YOUR NEWSLETTER NAME. (Ex. MSNBC: followed by subject).
10. Content: maximum of 512 characters per line. If it's longer than 512
characters, people using email clients will not be able to retrieve your
WebCourier newsletter.
SERVER RULES
11. Server Accessibility:
The server on which your HTML resides must be accessible via telnet
client. We will retrieve the HTML by "telnet"ing into the site and using
the GET command to retrieve the material.
telnet www.hotmail.com 80
Trying 207.82.250.251...
Connected to www.hotmail.com.
Escape character is '[CARAT]]'.
GET /hotmail/test.html HTTP/1.0
The server can reside on any port as long as it is not a secure server.
SID's are supported.
12. No Password Protected Pages.
13. Note: Some codes that may work in a browser alone may not be permissible
in WebCourier content.
14. Please run your newsletters through an HTML validator program to catch
any errors before posting it for pickup.
PICKUP RULES
15. The URL where the page resides for pickup cannot be changed. If it must
be changed, Hotmail must be notified as far in advance as possible.
16. Content must be ready at the time of pickup. Materials that have not
been changed from the previous pickup will not be delivered.
SUBSCRIBER CUSTOMER SUPPORT:
17. If subscribers have problems with their WebCourier subscription, please
have them send a blank email to [email protected]. This alias will send
the user some troubleshooting instructions. If a subscriber continues to
have problems after following the autoresponder directions, there is
another email alias provided for a personal response.
18. Company must maintain WebCourier delivered newsletter content pages,
links, and images for a minimum of six (6) months.
2
<PAGE> 10
EXHIBIT B
MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
THIS AGREEMENT (the "Agreement") is made between MICROSOFT CORPORATION, a
Washington corporation, and Bolt.com (the "Company") and entered into this
______ day of ________________, 19_____.
In consideration of the mutual promises and covenants contained in this
Agreement, the mutual disclosure of confidential information to each other, the
parties hereto agree as follows:
1. Confidential Information and Confidential Materials
(a) "Confidential Information" means nonpublic information that Disclosing
Party designates as being confidential or which, under the circumstances
surrounding disclosure ought to be treated as confidential. "Confidential
Information" includes, without limitation, information relating to released or
unreleased Disclosing Party software or hardware products, the marketing or
promotion of any Disclosing Party product, Disclosing Party's business policies
or practices, and information received from others that Disclosing Party is
obligated to treat as confidential. Confidential Information disclosed to
Receiving Party by any Disclosing Party Subsidiary and/or agents is covered by
this Agreement.
(b) Confidential Information shall not include any information that: (i) is
or subsequently becomes publicly available without Receiving Party's breach of
any obligation owed Disclosing Party; (ii) became known to Receiving Party prior
to Disclosing Party's disclosure of such information to Receiving Party; (iii)
became known to Receiving Party from a source other than Disclosing Party other
than by the breach of an obligation of confidentiality owed to Disclosing Party;
or (iv) is independently developed by Receiving Party.
(c) "Confidential Materials" shall mean all tangible materials containing
Confidential Information, including without limitation written or printed
documents and computer disks or tapes, whether machine or user readable.
2. Restrictions
(a) Receiving Party shall not disclose any Confidential Information to
third parties for five (5) years following the date of its disclosure by
Disclosing Party to Receiving Party, except to Receiving Party's consultants as
provided below. However, Receiving Party may disclose Confidential Information
in accordance with judicial or other governmental order, provided Receiving
Party shall give Disclosing Party reasonable notice prior to such disclosure and
shall comply with any applicable protective order or equivalent.
(b) Receiving Party shall take reasonable security precautions, at least as
great as the precautions it takes to protect its own confidential information,
to keep confidential the Confidential Information. Receiving Party may disclose
Confidential Information or Confidential Material only to Receiving Party's
employees or consultants on a need-to-know basis. Receiving Party will have
executed or shall execute appropriate written agreements with its employees and
consultants sufficient to enable it to comply with all the provisions of this
Agreement.
(c) Confidential Information and Confidential Materials may be disclosed,
reproduced, summarized or distributed only in pursuance of Receiving Party's
business relationship with Disclosing Party, and only as otherwise provided
hereunder. Receiving Party agrees to segregate all such Confidential Materials
from the confidential materials of others in order to prevent commingling.
(d) Receiving Party may not reverse engineer, decompile or disassemble any
software disclosed to Receiving Party.
3. Rights and Remedies
(a) Receiving Party shall notify Disclosing Party immediately upon
discovery of any unauthorized use or disclosure of Confidential Information
and/or Confidential Materials, or any other breach of this Agreement by
Receiving Party, and will cooperate with Disclosing Party in every reasonable
way to help Disclosing Party regain possession of the Confidential Information
and/or Confidential Materials and prevent its further unauthorized use.
(b) Receiving Party shall return all originals, copies, reproductions and
summaries of Confidential Information or Confidential Materials at Disclosing
Party's request, or at Disclosing Party's option, certify destruction of the
same.
(c) Receiving Party acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure of Confidential Information and
that Disclosing Party shall be entitled, without waiving any other rights or
remedies, to such injunctive or equitable relief as may be deemed proper by a
court of competent jurisdiction.
(d) Disclosing Party may visit Receiving Party's premises, with reasonable
prior notice and during normal business hours, to review Receiving Party's
compliance with the terms of this Agreement.
1
<PAGE> 11
4. Miscellaneous
(a) All Confidential Information and Confidential Materials are and shall
remain the property of Disclosing Party. By disclosing information to Receiving
Party, Disclosing Party does not grant any express or implied right to Receiving
Party to or under Disclosing Party patents, copyrights, trademarks, or trade
secret information.
(b) If either party provides pre-release software as Confidential
Information or Confidential Materials under this Agreement, such pre-release
software is provided "as is" without warranty of any kind. Receiving Party
agrees that neither Disclosing Party nor its suppliers shall be liable for any
damages whatsoever relating to Receiving Party's use of such pre-release
software.
(c) All software provided to the U.S. Government pursuant to solicitations
issued on or after December 1, 1995 is provided with the commercial rights and
restrictions described elsewhere herein. All software provided to the U.S.
Government pursuant to solicitations issued prior to December 1, 1995 is
provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE
1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. Manufacturer is
Microsoft Corporation/One Microsoft Way/Redmond, WA 98052-6399.
(d) Both parties agree that they do not intend nor will they, directly or
indirectly, export or re-export (i) any Confidential Information or Confidential
Materials, or (ii) any product (or any part thereof), process or service that is
the direct product of the Confidential Information or Materials to (A) any
country that is subject to U.S. export restrictions (currently including, but
not necessarily limited to, Iran, Iraq, Syria, Cuba, North Korea, Libya, the
Federal Republic of Yugoslavia (Serbia and Montenegro) and Sudan), or to any
national of any such country, wherever located, who intends to transmit or
transport the products back to such country; (B) to any end-user who either
party knows or has reason to know will utilize them in the design, development
or production of nuclear, chemical or biological weapons; or (C) to any end-user
who has been prohibited from participating in U.S. export transactions by any
federal agency of the U.S. government.
(e) The terms of confidentiality under this Agreement shall not be
construed to limit either party's right to independently develop or acquire
products without use of the other party's Confidential Information. Further,
either party shall be free to use for any purpose the residuals resulting from
access to or work with such Confidential Information, provided that such party
shall maintain the confidentiality of the Confidential Information as provided
herein. The term "residuals" means information in non-tangible form, which may
be retained by persons who have had access to the Confidential Information,
including ideas, concepts, know-how or techniques contained therein. Neither
party shall have any obligation to limit or restrict the assignment of such
persons or to pay royalties for any work resulting from the use of residuals.
However, the foregoing shall not be deemed to grant to either party a license
under the other party's copyrights or patents.
(f) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof. It shall not be modified except by a
written agreement dated subsequent to the date of this Agreement and signed by
both parties. None of the provisions of this Agreement shall be deemed to have
been waived by any act or acquiescence on the part of Disclosing Party, its
agents, or employees, but only by an instrument in writing signed by an
authorized officer of Disclosing Party. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision(s) or of the same
provision on another occasion.
(g) If either party employs attorneys to enforce any rights arising out of
or relating to this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees. This Agreement shall be construed and controlled by
the laws of the State of Washington, and both parties further consent to
jurisdiction by the state and federal courts sitting in the State of Washington.
Process may be served on either party by U.S. Mail, postage prepaid, certified
or registered, return receipt requested, or by such other method as is
authorized by the Washington Long Arm Statute.
(h) Subject to the limitations set forth in this Agreement, this Agreement
will inure to the benefit of and be binding upon the parties, their successors
and assigns.
(i) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
(j) All obligations created by this Agreement shall survive change or
termination of the parties' business relationship.
2
<PAGE> 12
5. Suggestions and Feedback
Either party may from time to time provide suggestions, comments or other
feedback to the other party with respect to Confidential Information provided
originally by the other party (hereinafter "Feedback"). Both parties agree that
all Feedback is and shall be entirely voluntary and shall not, absent separate
agreement, create any confidentiality obligation for the Receiving Party.
However, the Receiving Party shall not disclose the source of any feedback
without the providing party's consent. Feedback shall be clearly designated as
such and, except as otherwise provided herein, each party shall be free to
disclose and use such Feedback as it sees fit, entirely without obligation of
any kind to the other party. The foregoing shall not, however, affect either
party's obligations hereunder with respect to Confidential Information of the
other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Microsoft Company
MICROSOFT CORPORATION BOLT.COM
One Microsoft Way 304 Hudson Street
Redmond, WA 98052-6399 New York, NY 10013
By /s/ Gordon E. Wood /s/ Frank M. Harrison
------------------ ---------------------
(Sign) (Sign)
Gordon E. Wood Frank M. Harrison
- --------------------- ---------------------
Name (Print) Name (Print)
Director CFO
- --------------------- ---------------------
Title Title
9/9/99
- --------------------- ---------------------
Date Date
3
<PAGE> 1
EXHIBIT 10.11
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS WITH ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<S> <C> <C> <C>
ORDER# 51042 SALES CONTACT Beth Walter
CUSTOMER PHONE 212-508-0276
ORDER EMAIL [email protected]
REVISION
DATE 05-AUG-1999 FAX 212-750-5917
ADVERTISER BOLT.COM AGENCY CONCRETE MEDIA
CAMPAIGN ADDRESS 304 Hudson Ave
URL 7th Floor North
ADDRESS New York, NY 10013
CONTACT CONTACT Justin Nesci FAX 212.620.4315
PHONE FAX PHONE 212.620.3800 x250
EMAIL EMAIL [email protected]
START DATE 01-SEP-1999 END DATE 31-MAY-2000 CONTRACT LENGTH 274 days BILL TO Agency
</TABLE>
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ORDER TOTALS: TOTAL IMPRESSIONS TOTAL AMOUNT
[*] $[*]
AGENCY DISCOUNT [*]: $[*]
SUB-TOTAL: $[*]
-----------------
NET COST $[*]
-----------------
- ------------------------------------------------------------------------------------------------------------------------------------
TERMS Net 30 Days
BILLING MONTHLY
</TABLE>
MATERIALS: Banners: Banner requirements are posted at
http://www.yahoo.com/docs/advertising. DELIVERY: ALL MATERIALS AND ANY CHANGES
MUST BE DELIVERED AT LEAST 4 BUSINESS DAYS IN ADVANCE TO THE EMAIL ADDRESS
SPECIFIED FOR YOUR REGION AT HTTP: //WWW.YAHOO.COM/DOCS/ADVERTISING.
A Yahoo! Insertion order number and flight dates must be referenced in all
correspondence. Yahoo! will not issue any credit or makegood due to late or
incorrectly submitted banners and/or late or incomplete information.
TERMS AND CONDITIONS: The insertion order is subject to the terms and
conditions ("Standard Terms") attached hereto as Exhibit A of this Insertion
Order, and such Standard Terms are made a part of this insertion order by
reference. The signatory of this Insertion Order represents that he has read
and agrees to such Standard Terms.
This Insertion Order is valid for three (3) business days from the date of this
order. This agreement is non-cancelable.
<TABLE>
<S> <C> <C>
Authorized By: /s/ Justin Nesci Phone: 212-620-3900x701 Date: 9/1/99
-------------------------- ------------------ ---------------
Production Contact: Justin Nesci Phone: 212-620-3800 x250 Email: [email protected]
------------ ----------------- -----------------------
</TABLE>
<TABLE>
<S> <C>
YAHOO! INC. SANTA CLARA (PC)
3400 CENTRAL EXPRESSWAY
SUITE 201
PLEASE RETURN TO YAHOO SALES OPERATIONS DEPT. FAX # 408-530-5130 SANTA CLARA, CA 95051
- ----------------------------------------------------------------
</TABLE>
<PAGE> 2
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
LINE# LINE TYPE START DATE END DATE PAGE VIEWS AMOUNT
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<S> <C> <C> <C> <C>
1 CPI 01-SEP-1999 31-MAY-2000 [ * ]
Run Of
/room/teen (N)
- -----------------------------------------------------------------------------------------------------------------------------------
2 CPI 01-SEP-1999 31-MAY-2000 [ * ]
Categories
/channels/Teen (WP)
- -----------------------------------------------------------------------------------------------------------------------------------
3 CPI 01-SEP-1999 31-MAY-2000 [ * ]
Categories
/channels/Teen (NN)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR CHAT PROPERTY: [ * ] $[ * ]
- -----------------------------------------------------------------------------------------------------------------------------------
4 CPI 01-SEP-1999 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
5 CPI 01-OCT-1999 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
6 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
7 CPI 01-FEB-2000 29-FEB-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
8 CPI 01-MAR-2000 31-MAR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
9 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
10 CPI 01-MAY-2000 31-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
11 CPI 01-SEP-2000 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
12 CPI 01-OCT-2000 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
13 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
14 CPI 01-FEB-2000 29-FEB-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
15 CPI 01-MAR-2000 31-MAR-2000 [ * ]
Run of
/(N)
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</TABLE>
<PAGE> 3
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
LINE# LINE TYPE START DATE END DATE PAGE VIEWS AMOUNT
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<S> <C> <C> <C> <C>
16 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
17 CPI 01-MAY-2000 30-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ENTERTAINMENT PROPERTY: [ * ] $[ * ]
- -----------------------------------------------------------------------------------------------------------------------------------
18 CPI 01-NOV-1999 30-NOV-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
19 CPI 01-DEC-1999 31-DEC-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR FINANCE PROPERTY: [ * ] $[ * ]
- -----------------------------------------------------------------------------------------------------------------------------------
20 CPI 01-SEP-1999 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
21 CPI 01-OCT-1999 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
22 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
23 CPI 01-FEB-2000 29-FEB-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
24 CPI 01-MAR-2000 31-MAR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
25 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
26 CPI 01-MAY-2000 31-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
27 CPI 01-SEP-1999 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
28 CPI 01-OCT-1999 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
29 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
30 CPI 01-FEB-1999 29-FEB-1999 [ * ]
Run of
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</TABLE>
<PAGE> 4
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
LINE# LINE TYPE START DATE END DATE PAGE VIEWS AMOUNT
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<S> <C> <C> <C> <C>
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
31 CPI 01-MAR-2000 31-MAR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
32 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
33 CPI 01-MAY-2000 31-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
34 CPI 01-NOV-1999 30-NOV-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
35 CPI 01-DEC-1999 31-DEC-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
36 CPI 01-NOV-1999 30-NOV-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
37 CPI 01-DEC-1999 31-DEC-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
38 CPI 01-NOV-1999 30-NOV-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
39 CPI 01-DEC-1999 31-DEC-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
40 CPI 01-NOV-1999 30-NOV-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
41 CPI 01-DEC-1999 31-DEC-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR MAIL PROPERTY: [ * ] $[ * ]
- -----------------------------------------------------------------------------------------------------------------------------------
42 CPI 01-OCT-1999 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
43 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
44 CPI 01-FEB-2000 29-FEB-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
45 CPI 01-MAR-2000 31-MAR-2000 [ * ]
Run of
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</TABLE>
<PAGE> 5
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
LINE# LINE TYPE START DATE END DATE PAGE VIEWS AMOUNT
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
46 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
47 CPI 01-MAY-2000 31-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
48 CPI 01-SEP-1999 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
49 CPI 01-OCT-1999 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
50 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
51 CPI 01-FEB-2000 29-FEB-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
52 CPI 01-MAR-2000 31-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
53 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
54 CPI 01-MAY-2000 31-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
55 CPI 01-SEP-1999 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR MOVIES PROPERTY: [ * ] $[ * ]
- -----------------------------------------------------------------------------------------------------------------------------------
56 CPI 01-SEP-1999 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
57 CPI 01-OCT-1999 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
58 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
59 CPI 01-FEB-2000 29-FEB-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
60 CPI 01-MAR-2000 31-MAR-2000 [ * ]
Run of
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<PAGE> 6
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<CAPTION>
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LINE# LINE TYPE START DATE END DATE PAGE VIEWS AMOUNT
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<S> <C> <C> <C> <C>
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
61 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
62 CPI 01-MAY-2000 31-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
63 CPI 01-SEP-1999 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
64 CPI 01-OCT-1999 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
65 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
66 CPI 01-FEB-2000 29-FEB-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
67 CPI 01-MAR-2000 31-MAR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
68 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
69 CPI 01-MAY-2000 31-MAY-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
70 CPI 01-SEP-1999 30-SEP-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
71 CPI 01-OCT-1999 31-OCT-1999 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
72 CPI 01-JAN-2000 31-JAN-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
73 CPI 01-FEB-2000 29-FEB-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
74 CPI 01-MAR-2000 31-MAR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
75 CPI 01-APR-2000 30-APR-2000 [ * ]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 7
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
LINE# LINE TYPE START DATE END DATE PAGE VIEWS AMOUNT
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
76 CPI 01-MAY-2000 31-MAY-2000 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
77 CPI 01-SEP-1999 30-SEP-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
78 CPI 01-OCT-1999 31-OCT-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
79 CPI 01-JAN-2000 31-JAN-2000 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
80 CPI 01-FEB-2000 29-FEB-2000 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
81 CPI 01-MAR-2000 31-MAR-2000 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
82 CPI 01-APR-2000 30-APR-2000 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
83 CPI 01-MAY-2000 31-MAY-2000 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
84 CPI 01-NOV-1999 30-NOV-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
85 CPI 01-DEC-1999 31-DEC-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
86 CPI 01-NOV-1999 30-NOV-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
87 CPI 01-DEC-1999 31-DEC-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
88 CPI 01-NOV-1999 30-NOV-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
89 CPI 01-DEC-1999 31-DEC-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
90 CPI 01-NOV-1999 30-NOV-1999 [*]
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
91 CPI 01-DEC-1999 31-DEC-1999 [*]
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 8
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
LINE# LINE TYPE START DATE END DATE PAGE VIEWS AMOUNT
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Run of
/(N)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR NETWORK PROPERTY: [*] $[*]
- -----------------------------------------------------------------------------------------------------------------------------------
92 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
93 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
94 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
95 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
96 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
97 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
98 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
99 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
100 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
101 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
102 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
103 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
104 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
105 CPI 01-SEP-1999 31-MAY-2000 [*]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 9
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
LINE# LINE TYPE START DATE END DATE PAGE VIEWS AMOUNT
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
106 CPI 01-SEP-1999 31-MAY-2000 [ * ]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
107 CPI 01-SEP-1999 31-MAY-2000 [ * ]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
108 CPI 01-SEP-1999 31-MAY-2000 [ * ]
Search Words
[*] (N)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR YAHOO PROPERTY: [ * ] $[*]
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL IMPRESSIONS TOTAL AMOUNT
ORDER TOTAL: [ * ] $[ * ]
AGENCY DISCOUNT [*]: $[ * ]
SUB TOTAL: $[ * ]
-------------------
NET COST: $[ * ]
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
COMMENTS:
20-AUG-1999 Advertiser shall reserve the right to cancel the agreement
with 90 days written notice.
[*]
Yahoo guarantees Bolt a minimum monthly impression figure of
[ * ] /month for its sponsorship of the teen chat channel
Please refer to Addendum A for targeting of Yahoo! Properties and Run of Yahoo
Network.
Note: New west module size 125 x 125
<PAGE> 10
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
BOLT ADDENDUM A
<TABLE>
<CAPTION>
ROC DEMO 10 mos Sep-May Nov Dec
(excludes Nov & Dec)
10,000,000 1000000
<S> <C> <C> <C> <C>
Movies (18-20) 20% Email 35-49 40% 40%
Movies (21-24) 20% Email teen 30% 30%
Email (18-20) 10% Entertainment 35-49 10% 10%
Email (21-24) 10% Entertainment teen 10% 10%
Entertainment (18-20) 10% Finance 35-49 10% 10%
Entertainment (21-24) 10%
Astrology (18-20) 10%
Astrology (21-24) 10%
</TABLE>
<TABLE>
<CAPTION>
ROC DEMO 10 mos Sep-May Nov Dec
(excludes Nov & Dec)
13,000,000 1,300,000
<S> <C> <C> <C> <C>
ROS (18-20 Female) 25% ROS 35-49 men 25% 30%
ROS (18-20 male) 25% ROS 35-49 women 25% 30%
ROS (21-24 female) 25% Ros teen 25% 20%
ROS (21-24 male) 25% ROS 18-20 25% 20%
</TABLE>
<PAGE> 11
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
Standard Terms and Conditions for Yahoo! Advertising
The following terms and conditions (the "Standard Terms") shall be deemed to be
incorporated into the attached insertion order (the "Insertion Order"):
1. Terms of Payment. Advertiser must submit completed credit application
to determine terms of payment. If no credit application is submitted or the
request for credits is denied by Yahoo! Inc. ("Yahoo") in its sole discretion,
the Insertion Order must be paid in advance of the advertisement start date.
Major credit cards 9VIA, M/C and American Express) are accepted. If Yahoo
approves credit, Advertiser will be involved on the first day of the contract
period set forth on the Insertion Order and payment shall be made to Yahoo
within thirty (30) days from the date of Invoice ("Due Date"). Amounts paid
after the Due Date shall be increased at the rate of one percent (1%) per month
(or the highest rate permitted by law, if less). In the event Advertiser fails
to make timely payment, Advertiser will be responsible for all reasonable
expenses (including attorneys' fee) incurred by Yahoo in collecting such
amounts. Yahoo reserves the right to suspend performance of its obligations
hereunder (or under any other agreement with Advertiser) in the event
Advertiser fails to make timely payment hereunder or under any other agreement
with Yahoo.
2. Positioning. Except as otherwise expressly provided in the Insertion
Order, positioning of advertisements within the Yahoo properties or on any page
is at the sole discretion of Yahoo. Yahoo may, at is sole discretion, remove
from the insertion order (and substitute with similar inventory) any keyword or
category page that it believes to be a trademark, trade name, company name,
product name or brand name belonging to or claimed by a third party.
3. Renewal. Except as expressly set forth in the Insertion Order, any
renewal of the Insertion Order and acceptance of any additional advertising
order shall be at Yahoo's sole discretion, pricing for any renewal period is
subject to change by Yahoo from time to time.
4. No Assignment or Resale of Ad Space. Advertiser may not resell, assign
or transfer any of its rights hereunder, and any attempt to resell, assign or
transfer such rights shall result in immediate termination of this contract,
without liability to Yahoo.
5. Limitation of Liability. In the event (i) Yahoo fails to publish an
advertisement in accordance with the schedule provided in the Insertion Order,
(ii) Yahoo fails to deliver the number of total page views specified in the
Insertion Order (if any) by the end of the specified period, or (iii) of any
other failure, technical or otherwise, of such advertisement to appear as
provided in the Insertion Order, the sole liability of Yahoo to Advertiser
shall be limited to, at Yahoo's sole discretion, a pro rata refund of the
advertising fee representing undelivered page views, placement of the
advertisement at a later time in a comparable position, or extension of the
term of the Insertion Order until total page views are delivered. In no event
shall Yahoo be responsible for any consequential, special, punitive or other
damages, including without limitation, lost revenue or profits, in any way
arising out of or related to the Insertion Order/Standard Terms or publication
of the advertisement, even if Yahoo has been advised of the possibility of such
damages. Without limiting the foregoing, Yahoo shall have no liability for any
failure or transportation interruption of any kind, work slowdown or any other
condition beyond the control of Yahoo affecting production or delivery in any
manner.
6. Advertisers Representation; Indemnification. Advertisements are
accepted upon the representation that Advertiser has the right to publish the
contents of the advertisement without infringing the rights of any third party
and without violating any law. In consideration of such publication, Advertiser
agrees, at its own expense, to indemnify, defend and hold harmless Yahoo, and
its employees, representatives, agents and affiliates, against any and all
expenses and losses of any kind (including reasonable attorneys' fees and
costs) incurred by Yahoo in connection with any claims, administrative
proceedings or criminal investigations of any kind arising out of publication
of the advertisement and/or any material of Advertiser to which users can link
through the advertisement (including without limitation, any claim of trademark
or copyright infringement, defamation, breech of confidentiality, privacy
violation, false or deceptive advertising or sales practices).
7. Provision of Advertising Materials. Advertiser will provide all
materials for the advertisement in accordance with Yahoo's policies in effect
from time to time, including (without limitation) the manner of transmission to
Yahoo and the lead-time prior to publication of the advertisement. Yahoo shall
not be required to publish any advertisement that is not received in accordance
with such policies and reserves the right to charge Advertiser, at the rate
specified in the Insertion Order for inventory held by yahoo pending receipt of
acceptable materials from Advertiser which are past due. Advertiser hereby
grants to Yahoo non-exclusive, worldwide, fully paid license to use, reproduce
and display the advertisement (and the contents, trademarks and brand features
contained therein) in accordance herewith.
<PAGE> 12
YAHOO!. ADVERTISING INSERTION ORDER
HTTP://WWW.YAHOO.COM
8. Right to Reject Advertisement. All contents of advertisements are
subject to Yahoo's approval. Yahoo reserves the right to reject or cancel any
advertisement, insertion order, URL link, space reservation or position
commitment, at any time, for any reason whatsoever (including belief by Yahoo
that placement of advertisement, URL link, etc., may subject Yahoo to criminal
or civil liability).
9. Cancellations. Except as otherwise provided in the Insertion Order,
the Insertion Order is non-cancelable by Advertiser.
10. Construction. No conditions other than those set forth in the
Insertion Order on these Standard Terms shall be binding on Yahoo unless
expressly agreed to in writing by Yahoo. in the event of any inconsistency
between the Insertion Order and the Standard Terms, the Standard Terms shall
control.
11. Miscellaneous. These Standard Terms, together with the Insertion
Order, (i) shall be governed by and construed in accordance with, the laws of
the State of California, without giving effect to principles of conflicts of
laws; (ii) may be amended only by a written agreement executed by an authorized
representative of each party; and (ii) constitute the complete and entire
expression of the agreement between the parties, and shall supersede any and
all other agreements, whether written or oral, between the parties. Advertiser
shall make no public announcement regarding the existence or content of the
Insertion Order without Yahoo's written approval, which may be withheld at
Yahoo's sole discretion. Both parties consent to the jurisdiction of the courts
of the State of California with respect to any legal proceeding arising in
connection with the Insertion Order/Standard Terms.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 1 to the Registration Statement
No. 333-93235 of Bolt, Inc. on Form S-1 of our report dated December 6, 1999,
appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the reference to us under the headings "Selected Financial
Data" and "Experts" in such Prospectus.
Deloitte & Touche LLP
New York, NY
December 30, 1999
