<PAGE>
As filed with the Securities and Exchange Commission on February 16, 2000
Registration No. 333-96099
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1 to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CCBN.COM, INC.
(Exact name of registrant as specified in its charter)
Delaware 7375 04-3468317
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
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200 Portland Street
Boston, Massachusetts 02114
(617) 850-7900
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Jeffrey P. Parker
Chairman of the Board and Chief Executive Officer
200 Portland Street
Boston, Massachusetts 02114
(617) 850-7900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Paul P. Brountas, Esq. Stephen A. Riddick, Esq.
Peter B. Tarr, Esq. Brobeck, Phleger & Harrison LLP
Hale and Dorr LLP 701 Pennsylvania Avenue
60 State Street Washington, DC 20004
Boston, Massachusetts 02109 Telephone: (202) 220-6000
Telephone: (617) 526-6000 Telecopy: (202) 220-5200
Telecopy: (617) 526-5000
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
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If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to the Registrant's Registration Statement on Form S-1
(Commission File No. 333-96099) is being filed solely for the purpose of filing
Exhibits 3.1, 10.5, 10.6, 10.7 and 10.8 thereto.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses, all of which will be
borne by us, in connection with the sale and distribution of the securities
being registered, other than the underwriting discounts and commissions. All
amounts shown are estimates except for the Securities and Exchange Commission
registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee............................................. $15,180
NASD filing fee.................................................. 6,250
Nasdaq National Market listing fee............................... *
Blue Sky fees and expenses....................................... *
Transfer Agent and Registrar fees................................ *
Accounting fees and expenses..................................... *
Legal fees and expenses.......................................... *
Director and Officer Liability Insurance......................... *
Printing and mailing expenses.................................... *
Miscellaneous.................................................... *
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Total.......................................................... $ *
=======
</TABLE>
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* To be filed by amendment.
Item 14. Indemnification of Directors and Officers
Article EIGHTH of our amended and restated certificate of incorporation to
be effective upon the closing of this offering provides that none of our
directors shall be personally liable for any monetary damages for any breach of
fiduciary duty as a director, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty.
Article NINTH of our amended and restated certificate of incorporation
provides that our directors and officers (a) shall be indemnified by us against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement incurred in connection with any litigation or other legal proceeding
(other than an action by or in our right) brought against him by virtue of his
position as our director or officer if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, our best interests, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful and (b) shall be indemnified by us against all
expenses (including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in our right brought against him by virtue of
his position as our director or officer if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, our best interests,
except that no indemnification shall be made with respect to any matter as to
which such person shall have been adjudged to be liable to us, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has
been successful, on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, he is required to be indemnified by
us against all expenses (including attorneys' fees) incurred in
II-1
<PAGE>
connection therewith. Expenses shall be advanced to a director or officer at
his request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
Indemnification is required to be made unless we determine that the
applicable standard of conduct required for indemnification has not been met.
In the event of a determination by us that the director or officer did not meet
the applicable standard of conduct required for indemnification, or if we fail
to make an indemnification payment within 60 days after such payment is claimed
by such person, such person is permitted to petition the court to make an
independent determination as to whether such person is entitled to
indemnification. As a condition precedent to the right of indemnification, the
director or officer must give us notice of the action for which indemnity is
sought and we have the right to participate in such action or assume the
defense thereof.
Article NINTH of our amended and restated certificate of incorporation
further provides that the indemnification provided therein is not exclusive,
and provides that in the event that the Delaware General Corporation Law is
amended to expand the indemnification permitted to directors or officers we
must indemnify those persons to the fullest extent permitted by such law as so
amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent
of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal proceeding, if such
person had no reasonable cause to believe his conduct was unlawful; provided
that, in the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such indemnification
is proper under the circumstances.
Under section of the underwriting agreement between us and the
underwriters, the underwriters are obligated, under certain circumstances, to
indemnify our directors and officers against certain liabilities, including
liabilities under the Securities Act.
Item 15. Recent Sales of Unregistered Securities
Set forth in chronological order is information regarding securities issued
by us since August 1997. Further included is the consideration, if any,
received by us for such securities and information relating to the section of
the Securities Act or rule of the Securities and Exchange Commission under
which exemption from registration was claimed. For purposes of this Item 15,
common units and shares of our common stock do not reflect the three-for-one
split effected on , 2000.
The securities issued in the following transactions were either (i) offered
and sold in reliance upon exemptions from Securities Act registration set forth
in Sections 3(b) and 4(2) of the Securities Act, or any regulations promulgated
thereunder, relating to sales by an issuer not involving any public offering,
or (ii) in the case of certain options to purchase shares of Series A common
stock and shares of Series A common stock issued upon the exercise of such
options, such offers and sales were made in reliance upon an exemption from
registration under Rule 701 of the Securities Act. No underwriters were
involved in these sales of securities.
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<PAGE>
(a) Issuances of Capital Stock
In August 1997, we issued and sold 1,252,600 common units to common member
founders and employees for an aggregate price of $1,253.
In October 1997, we issued and sold 187,500 common units to preferred
members in a private financing for an aggregate price of $1,500,000.
In November 1997, we issued and sold 25,100 common units to common member
employees for an aggregate price of $25.10.
In March 1998, we issued and sold 114,681 common units to preferred members
in a private financing for an aggregate price of $1,146,810.
In May 1998, we issued and sold 47,450 common units to common member
employees for an aggregate price of $47.45.
In August 1998, we issued and sold 34,600 common units to common member
employees for an aggregate price of $34.60.
In October 1998, we issued and sold 73,050 common units to common member
employees for an aggregate price of $73.05.
In November 1998, we issued and sold 13,848 common units to preferred
members in a private financing for an aggregate price of $208,274.
In January 1999, we issued and sold 10,500 common units to common member
employees for an aggregate price of $10.50.
In March 1999, we issued 32,912 common units to a preferred member as
satisfaction in full of certain demand promissory notes having an aggregate
value of $850,000.
In April 1999, we merged CCBN.COM, LLC, a Massachusetts limited liability
company with and into CCBN.COM, Inc., a Delaware corporation. At the time of
merger, in exchange for an aggregate of 1,781,741 common units of the LLC, we
issued an aggregate of 4,298,400 shares of our common stock and 1,040,133
shares of our convertible preferred stock of the corporation in the following
manner:
. we issued a total of 3,757,800 shares of Series A common stock in
exchange for a total of 1,252,600 common units held by common members;
. we issued a total of 75,300 shares of Series B common stock in exchange
for a total of 25,100 common units held by common members;
. we issued a total of 142,350 shares of Series C common stock in exchange
for a total of 47,450 common units held by common members;
. we issued a total of 103,800 shares of Series D common stock in exchange
for a total of 34,600 common units held by common members;
. we issued a total of 219,150 shares of Series E common stock in exchange
for a total of 73,050 common units held by common members;
. we issued a total of 562,500 shares of Series A convertible preferred
stock in exchange for a total of 187,500 common units held by preferred
members;
II-3
<PAGE>
. we issued a total of 344,043 shares of Series B convertible preferred
stock in exchange for a total of 114,681 common units held by preferred
members;
. we issued a total of 41,544 shares of Series C convertible preferred
stock in exchange for a total of 13,848 common units held by preferred
members; and
. we issued a total of 92,096 shares of Series D convertible preferred
stock in exchange for a total of 32,912 common units held by preferred
members.
On June 9, 1999, we issued and sold 617,924 shares of Series D convertible
preferred stock in a private financing for an aggregate purchase price of
$5,818,996.
In December, 1999, we issued and sold 207,980 shares of Series E convertible
preferred stock in a private financing for an aggregate purchase price of
$3,348,478.
(b) Certain Grants and Exercises of Stock Options. As of December 31, 1999,
options to purchase 856,867 shares of Series A common stock were outstanding
under our 1999 Incentive and Non-Statutory Stock Option Plan. 900 options to
purchase shares of Series A common stock have been exercised under the 1999
plan.
Item 16. Exhibits and Financial Statement Schedules
(a)Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
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<C> <S>
1.1* Form of Underwriting Agreement
3.1 Second Amended and Restated Certificate of Incorporation of
CCBN.COM, Inc., as currently in effect
3.2** By-laws of CCBN.COM, as currently in effect
4.1* Specimen Certificate for shares of Series A common stock of
CCBN.COM
5.1* Opinion of Hale and Dorr LLP
10.1** 1999 Incentive and Non-Statutory Stock Option Plan
10.2** 1999 Incentive and Non-Statutory Stock Option Plan Form of Notice
of Grant of Non-Statutory Stock Option
10.3** 1999 Incentive and Non-Statutory Stock Option Plan Form of Notice
of Grant of Incentive Stock Option
10.4** Stock Purchase Agreement, dated June 9, 1999, by and among
CCBN.COM and certain stockholders
10.5+ Interactive Services Agreement between CCBN.COM and America
Online, Inc., dated December 23, 1999
10.6 Stock Purchase Agreement, dated December 23, 1999, by and among
CCBN.COM, Thomson Information Services, Inc. and America Online,
Inc.
10.7 Amended and Restated Registration Rights Agreement, dated December
23, 1999, by and among CCBN.COM, Thomson Information Services,
Inc. and AOL and certain other stockholders
10.8+ Stock Subscription Warrant issued to America Online, Inc., dated
December 23, 1999
10.9** Assignment of Leasehold Estate by Invention Machine Corporation in
favor of CCBN.COM, dated August 13, 1999
10.10** 2000 Outside Director Stock Option Plan
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
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<C> <S>
10.11** 2000 Employee Stock Purchase Plan
23.1** Consent of PricewaterhouseCoopers LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3* Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1** Powers of Attorney (included on the signature page of the
registration statement)
27.1** Financial Data Schedule
</TABLE>
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* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to a Confidential Treatment Request.
(b) Financial Statement Schedules
Schedule II Valuation and Qualifying Accounts
All other schedules have been omitted because they are not required or
because the required information is provided in our Financial Statements or
Notes thereto.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and persons who control us pursuant to
the provisions of our amended and restated certificate of incorporation and the
laws of the State of Delaware, or otherwise, we have 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 us of expenses incurred or paid by a
director, officer or controlling person of us in the successful defense of any
action, suit or proceeding) is asserted by a director, officer or person who
controls us in connection with the securities being registered, we 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.
We hereby undertake 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.
We hereby undertake that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted form 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 us 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-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Boston, Massachusetts, on this 16th
day of February, 2000.
CCBN.COM, Inc.
By: /s/ Jeffrey P. Parker
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Jeffrey P. Parker
Chairman and Chief Executive
Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of CCBN.COM, Inc., hereby
severally constitute and appoint Jeffrey P. Parker and Robert I. Adler, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-1 filed herewith and any
and all pre-effective and post-effective amendments to said Registration
Statement, and any subsequent Registration Statement for the same offering
which may be filed under Rule 462(b), and generally to do all such things in
our names and on our behalf in our capacities as officers and directors to
enable CCBN.COM, Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto or to any subsequent Registration Statement
for the same offering which may be filed under Rule 462(b).
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<C> <S> <C>
/s/ Jeffrey P. Parker Chairman of the Board of February 16,
---------------------------- Directors and 2000
Jeffrey P. Parker Chief Executive Officer
* February 16,
---------------------------- President and Director 2000
Robert I. Adler
* Vice President, Finance and February 16,
---------------------------- Administration 2000
Paul M. Prescott Chief Accounting Officer
* February 16,
---------------------------- Director 2000
Keith B. Jarrett
* February 16,
---------------------------- Director 2000
Robert C. McCormack
* February 16,
---------------------------- Director 2000
Richard E. Hanlon
* February 16,
---------------------------- Director 2000
Robert C. Shenk, Jr.
</TABLE>
*By: /s/ Jeffrey P.
Parker
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Jeffrey P. Parker
Attorney-In-Fact
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<C> <S>
1.1* Form of Underwriting Agreement
3.1 Second Amended and Restated Certificate of Incorporation of
CCBN.COM, Inc., as currently in effect
3.2** By-laws of CCBN.COM, as currently in effect
4.1* Specimen Certificate for shares of Series A Common Stock of
CCBN.COM
5.1* Opinion of Hale and Dorr LLP
10.1** 1999 Incentive and Non-Statutory Stock Option Plan
10.2** 1999 Incentive and Non-Statutory Stock Option Plan Form of Notice
of Grant of Non-Statutory Stock Option
10.3** 1999 Incentive and Non-Statutory Stock Option Plan Form of Notice
of Grant of Incentive Stock Option
10.4** Stock Purchase Agreement, dated June 9, 1999, by and among
CCBN.COM and certain stockholders
10.5+ Interactive Services Agreement between CCBN.COM and AOL, dated
December 23, 1999
10.6 Stock Purchase Agreement, dated December 23, 1999, by and among
CCBN.COM, Thomson Information Services, Inc. and America Online,
Inc.
10.7 Amended and Restated Registration Rights Agreement, dated December
23, 1999, by and among CCBN.COM, Thomson Information Services,
Inc. and AOL and certain other stockholders
10.8+ Stock Subscription Warrant issued to AOL, dated December 23, 1999
10.9** Assignment of Leasehold Estate by Invention Machine Corporation in
favor of CCBN.COM, dated August 13, 1999
10.10** 2000 Outside Director Stock Option Plan
10.11** 2000 Employee Stock Purchase Plan
23.1** Consent of PricewaterhouseCoopers LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3* Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1** Powers of Attorney (included on the signature page of the
registration statement)
27.1** Financial Data Schedule
</TABLE>
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* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to a Confidential Treatment Request.
<PAGE>
EXHIBIT 3.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CCBN.COM, INC.
I, Robert I. Adler, President of CCBN.COM, Inc. (the "Corporation"), a
corporation organized and existing under the laws of the State of Delaware,
hereby certify as follows:
1. The original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on April 2, 1999. An Amended and Restated
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on June 8, 1999.
2. This Second Amended and Restated Certificate of Incorporation restates
and further amends the Amended and Restated Certificate of Incorporation of the
Corporation by, among other things, creating a Series E Convertible Preferred
Stock and authorizing 1,253,842 shares of undesignated preferred stock.
3. This Second Amended and Restated Certificate of Incorporation has been
duly proposed by the directors and adopted by the stockholders in the manner and
by the vote prescribed by Sections 228 and 242 and has been duly adopted
pursuant to Section 245 of the General Corporation Law of Delaware.
4. The text of the Amended and Restated Certificate of Incorporation is
therefore further amended and restated in its entirety hereby to read as herein
set forth:
FIRST: The name of the corporation is CCBN.COM, Inc.
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SECOND: The address of the registered office of the Corporation in the State of
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Delaware is 1209 Orange Street, Wilmington, County of New Castle, and the name
of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted is
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to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
- ------
Corporation has authority to issue is 14,098,728 shares, consisting of the
following shares:
10,454,697 shares of common stock consisting of the following series:
<PAGE>
10,000,000 shares of Series A Common Stock, par value $0.001 (the
"Series A Common Stock");
64,031 shares of Series B Common Stock, par value $0.001 (the "Series
B Common Stock");
81,366 shares of Series C Common Stock, par value $0.001 (the "Series
C Common Stock");
59,250 shares of Series D Common Stock, par value $0.001 (the "Series
D Common Stock");
250,050 shares of Series E Common Stock, par value $0.001 (the "Series
E Common Stock" and, together with the Series A Common Stock, the
Series B Common Stock, the Series C Common Stock and the Series D
Common Stock, the "Common Stock"); and
3,644,031 shares of preferred stock consisting of the following series:
562,500 shares of Series A Convertible Preferred Stock, par value $.0l
per share (the "Series A Preferred Stock");
344,043 shares of Series B Convertible Preferred Stock, par value $.01
per share (the "Series B Preferred Stock");
41,544 shares of Series C Convertible Preferred Stock par value $.01
per share (the "Series C Preferred Stock");
891,314 shares of Series D Convertible Preferred Stock par value $.01
per share; (the "Series D Preferred Stock"); and
1,804,630 shares of Series E Convertible Preferred Stock, par value
$.01 per share (the "Series E Preferred Stock," and together with the
Series A Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, and the Series D Preferred Stock, the "Preferred
Stock"), consisting of the following subseries:
457,980 shares of Series E-1 Convertible Preferred Stock, par
value $.01 and
1,346,650 shares of Series E Convertible Preferred Stock of
undesignated subseries (the "Undesignated Series E Stock"),
amounting to an aggregate par value of $46,895.01
Authority is hereby expressly granted to the Board of Directors from
time to time to issue Undesignated Series E Stock in one or more subseries,
each of such subseries to have the
2
<PAGE>
terms of the Series E Preferred Stock as set forth herein, differing from the
other subseries of Series E Preferred Stock only as to the "Original Purchase
Price" per share, as hereinafter defined, and as provided in the resolution or
resolutions providing for the issue of such subseries adopted by the Board of
Directors of the Corporation as hereinafter provided. No share of Undesignated
Series E Stock that is redeemed, purchased or acquired by the Corporation may be
reissued except as otherwise provided herein. Different subseries of
Undesignated Series E Stock shall not be construed to constitute different
classes of shares for the purposes of voting by classes unless expressly
provided herein, in any such resolution or resolutions.
Except as otherwise provided by law or by this Certificate of
Incorporation, no vote of the holders of the Undesignated Series E Stock, the
Preferred Stock or the Common Stock shall be a prerequisite to the issuance of
any shares of any subseries of the Undesignated Series E Stock authorized by and
complying with the conditions of the Certificate of Incorporation, the right to
have such vote being expressly waived by all present and future holders of the
capital stock of the Corporation.
The powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, in respect of each class or series of stock of the
Corporation other than the Undesignated Preferred Stock shall be as follows:
Section 1. Liquidation Rights.
- ---------- ------------------
(a) Liquidation Payments.
--------------------
(i) Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any distribution or
payment is made upon any stock ranking on liquidation junior to the Preferred
Stock, each holder of Series D Preferred Stock and Series E Preferred Stock
shall first be entitled, followed by all other classes of Preferred Stock, to be
paid with respect to each such share an amount equal to the greater of (i) the
Original Purchase Price of such share (which amount shall be subject to
equitable adjustment whenever there shall occur a stock dividend, stock split,
combination of shares, reclassification or other similar event with respect to
the Preferred Stock), plus all dividends accrued or declared but unpaid thereon,
to and including the date full payment shall be tendered to the holders of the
Preferred Stock with respect to such liquidation, dissolution or winding up, or
(ii) such amount as would have been payable had such share been converted to
Common Stock pursuant to Section 2 immediately prior to such liquidation,
dissolution or winding up, and the holders of Preferred Stock shall not be
entitled to any further payment, such amount payable with respect to the
Preferred Stock being sometimes referred to as the "Liquidation Payment". In the
case of the Series A Preferred Stock, the Original Purchase Price per share
shall be $2.67. In the case of the Series B Preferred Stock, the Original
Purchase Price per share shall be $3.33. In the case of the Series C Preferred
Stock, the Original Purchase Price per share shall be $5.0133. In the case of
the Series D Preferred Stock, the Original Purchase Price per share shall be
$9.417. In the case of the Series E-1 Preferred Stock, the Original Purchase
Price per share shall be $16.10. The Original Purchase Price of each subseries
of the Undesignated Series E Stock shall be determined by the Board of Directors
upon its designation of each such subseries.
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<PAGE>
If upon such liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the assets to be distributed among the holders
of Preferred Stock shall be insufficient to permit payment to the holders of
Preferred Stock of the amount distributable as aforesaid, then the assets shall
be distributed first to the holders of the Series D Preferred Stock and Series E
Preferred Stock to satisfy the entire Liquidation Payment due each holder of
Series D Preferred Stock and Series E Preferred Stock, and in the event the
assets to be distributed shall be insufficient to satisfy the Liquidation
Payments due the holders of the Series D Preferred Stock and Series E Preferred
Stock, then the assets to be so distributed shall be distributed pro rata among
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the holders of the Series D Preferred Stock and Series E Preferred Stock in
accordance with the respective amounts which would have been distributed to such
holders if such assets had been sufficient to make the Liquidation Payments in
full. Following the distribution to the holders of the Series D Preferred Stock
and Series E Preferred Stock, in the case where assets are insufficient to
satisfy the Liquidation Payments to all classes of Preferred Stock, any
remaining assets of the Corporation to be distributed shall be distributed pro
---
rata among the holders of the other classes of Preferred Stock in accordance
- ----
with the respective amounts which would have been distributed to such holders if
such assets had been sufficient to make the Liquidation Payments in full.
Written notice of such liquidation, dissolution or winding up, stating a payment
date, the amount of the Liquidation Payments and the place where said
Liquidation Payments shall be payable, shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, not less than 20 days prior to the payment date stated therein, to the
holders of record of Preferred Stock, such notice to be addressed to each such
holder at its address as shown by the records of the Corporation.
(ii) Upon any liquidation, dissolution or winding up as described in
Subsection 1(a)(i), after the payments described in such subsection shall have
been made in full to the holders of the Preferred Stock, or funds necessary for
such payments shall have been set aside by the Corporation in trust for the
account of holders of Preferred Stock so as to be available for such payments,
the remaining assets available for distribution shall be distributed among the
holders of the Common Stock ratably in proportion to the number of shares of
Common Stock then held by them, provided, however, that the amount distributed
--------- -------
to each holder of Series B Common Stock, Series C Common Stock, Series D Common
Stock and Series E Common Stock in respect of each such share held by each such
person shall be reduced by the Effective Issuance Value (as defined in Section
2(b)(ii)(A) hereof) of each such share, and the assets then additionally
available for distribution as a result of all such reductions shall be
distributed ratably among all shareholders in proportion to the number of shares
held by them, counting all shares of Preferred Stock as if they had been
converted to Common Stock at the then-applicable Conversion Rate.
(iii) Upon conversion of shares of Preferred Stock into shares of
Series A Common Stock pursuant to Section 2 below, the holder of such Series A
Common Stock shall not be entitled to any preferential payment or distribution
in case of any liquidation, dissolution or winding up, but shall share ratably
in any distribution of the assets of the Corporation to all the holders of
Common Stock.
(b) Distributions Other than Cash. Whenever the distributions provided for
-----------------------------
in this Section 1 shall be payable in property other than cash, the value of
such distributions shall be the
4
<PAGE>
fair market value of such property as determined in good faith by the Board of
Directors of the Corporation.
(c) Merger as Liquidation, etc. The merger or consolidation of the
--------------------------
Corporation into or with another corporation (except one in which the holders of
capital stock of the Corporation immediately prior to such merger or
consolidation continue to hold at least fifty percent (50%) in voting power of
the capital stock of the surviving corporation immediately after the merger, in
which case the provisions of Subsection 2(g) shall apply), or the sale of all or
substantially all of the assets of the Corporation, shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the Corporation for
purposes of this Section 1 with respect to the Preferred Stock unless the
holders of at least a majority of the then outstanding shares of Preferred Stock
elect to the contrary, such election to be made by giving written notice thereof
to the Corporation at least three days before the effective date of such event.
If such notice is given, the provisions of Subsection 2(g) shall apply to such
Preferred Stock. Unless such election is made, any amounts received by the
holders of the Preferred Stock as a result of such merger or consolidation shall
be deemed to be applied toward, and all consideration received by the
Corporation in such asset sale together with all other available assets of the
Corporation shall be distributed toward, the Liquidation Payments attributable
to such shares of Preferred Stock.
(d) Notice. Written notice of any proposed liquidation, dissolution or
------
winding up of the affairs of the Corporation (including any merger,
consolidation or sale of assets which may be deemed to be a liquidation,
dissolution or winding up of the affairs of the Corporation under Subsection
1(c)), stating a payment date, the amount of the Liquidation Payments and the
place where said Liquidation Payments shall be payable, shall be given to the
holders of record of the Preferred Stock by first class mail, postage prepaid,
or by fax or DHL, Federal Express or other recognized express international
courier service in the case of non-U.S. stockholders, not less than twenty (20)
days prior to the payment date stated therein, such notice to be addressed to
each such holder at its address as shown by the records of the Corporation. Any
holder of outstanding shares of Preferred Stock may waive any notice required by
this Subsection by a written document specifically indicating such waiver.
Section 2. Conversion. The holders of Preferred Stock shall have conversion
- --------- ----------
rights as follows (the "Conversion Rights"):
(a) Right to Convert; Conversion Price. Each share of Preferred Stock
----------------------------------
shall be convertible, without the payment of any additional consideration by the
holder thereof and at the option of the holder thereof, at any time after the
date of issuance of such share, at the office of the Corporation or any transfer
agent for the Preferred Stock, into such number of fully paid and nonassessable
shares of Series A Common Stock as is determined in accordance with the
following:
(i) in the case of the Series E Preferred Stock, by dividing the
Original Purchase Price of the relevant subseries of Series E Preferred Stock by
the relevant Series E Conversion Price for that subseries, determined as
hereinafter provided, in effect at the time of conversion. The Conversion Price
at which shares of Series A Common Stock shall be deliverable upon conversion of
any subseries of Series E Preferred Stock without the payment of
5
<PAGE>
any additional consideration by the holder thereof (the "Series E Conversion
Price") shall initially be the Original Purchase Price of such subseries per
share of Series A Common Stock. Such initial Series E Conversion Price shall be
subject to adjustment in accordance with Section 2(h) hereof, in order to adjust
the number of shares of Series A Common Stock into which the Series E Preferred
Stock is convertible;
(ii) in the case of the Series D Preferred Stock, by dividing $9.417
by the Series D Conversion Price, determined as hereinafter provided, in effect
at the time of conversion. The Conversion Price at which shares of Series A
Common Stock shall be deliverable upon conversion of Series D Preferred Stock
without the payment of any additional consideration by the holder thereof (the
"Series D Conversion Price") shall initially be $9.417 per share of Series A
Common Stock. Such initial Series D Conversion Price shall be subject to
adjustment in accordance with Section 2(h) hereof, in order to adjust the number
of shares of Series A Common Stock into which the Series D Preferred Stock is
convertible;
(iii) in the case of the Series C Preferred Stock, by dividing
$5.0133 by the Series C Conversion Price, determined as hereinafter provided,
in effect at the time of conversion. The Conversion Price at which shares of
Common Stock shall be deliverable upon conversion of Series C Preferred Stock
without the payment of any additional consideration by the holder thereof (the
"Series C Conversion Price") shall be $5.0133 per share of Common Stock;
(iv) in the case of the Series B Preferred Stock, by dividing $3.33
by the Series B Conversion Price, determined as hereinafter provided, in effect
at the time of conversion. The Conversion Price at which shares of Common Stock
shall be deliverable upon conversion of Series B Preferred Stock without the
payment of any additional consideration by the holder thereof (the "Series B
Conversion Price") shall be $3.33 per share of Common Stock; and
(v) in the case of the Series A Preferred Stock, by dividing $2.67
by the Series A Conversion Price, determined as hereinafter provided, in effect
at the time of conversion. The Conversion Price at which shares of Common Stock
shall be deliverable upon conversion of Series A Preferred Stock without the
payment of any additional consideration by the holder thereof (the "Series A
Conversion Price") shall be $2.67 per share of Common Stock.
(b) Automatic Conversion.
--------------------
(i) Automatic Conversion of Preferred Stock. If at any time (i) the
---------------------------------------
Corporation shall effect a firm commitment underwritten public offering of
shares of Common Stock in which (A) the aggregate price paid for such shares by
the public shall be at least $30,000,000 and (B) the Company has a pre-offering
valuation of at least $150,000,000 (a "Qualified Public Offering") or (ii) the
holders of not less than a majority of the shares of Preferred Stock have
elected in writing to convert such shares into Common Stock pursuant to this
Section 2, then effective upon the closing of the sale of such shares by the
Corporation pursuant to such public offering or such conversion, as the case may
be, all outstanding shares of Preferred Stock shall automatically convert to
shares of Common Stock on the basis set forth in this Section 2, provided that
-------- ----
in the case where a majority of the shares of Preferred Stock have
6
<PAGE>
elected to convert to Common Stock, the outstanding shares of Series D Preferred
Stock and Series E Preferred Stock will not be converted into shares of Common
Stock unless holders of a majority of shares of Series D Preferred Stock and
Series E Preferred Stock have elected in writing, voting as a single class, to
convert such shares into Common Stock pursuant to this Section 2. Holders of
shares of Preferred Stock so converted may deliver to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to such holders) during its usual
business hours, the certificate or certificates for the shares so converted. As
promptly as practicable thereafter, the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of whole shares of
Common Stock to which such holder is entitled, together with any cash dividends
and payment in lieu of fractional shares to which such holder may be entitled
pursuant to subsections 2(c) and 2(d). Until such time as a holder of shares of
Preferred Stock shall surrender his or its certificates therefor as provided
above, such certificates shall be deemed to represent the shares of Common Stock
to which such holder shall be entitled upon the surrender thereof.
(ii) Forced Conversion of Common Stock. At the election of the Board
---------------------------------
of Directors, upon any Forced Conversion Event (as hereinafter defined), each
share of Series B Common Stock, Series C Common Stock, Series D Common Stock and
Series E Common Stock (collectively, "Convertible Common Stock") shall
automatically be converted into such number of shares of Series A Common Stock
as is equal to:
1 - (EIV/CV)
where "EIV" is the applicable Effective Issuance Value (as hereinafter defined)
for the Series of Common Stock being converted and "CV" is the Current Value of
a share of the Corporation's stock on a fully diluted basis, as further
described below.
For purposes of this Section 2(b)(ii) and Section 1(a)(ii), the
following terms shall have the following meanings:
(A) "Effective Issuance Value" means:
(I) with respect to the Series B Common Stock:
$0.46;
(II) with respect to the Series C Common Stock:
$0.62;
(III) with respect to the Series D Common Stock:
$0.61; and
(IV) with respect to the Series E Common Stock:
$0.97.
(B) "Forced Conversion Event" means any of the following
events:
7
<PAGE>
(I) the closing of a Qualified Public Offering;
(II) the merger or consolidation of the
Corporation into or with another corporation (a
"Merger");
or
(III) the sale of all or substantially all of the
assets of the Corporation (an "Asset Sale").
(C) "Current Value" means a number determined as follows:
(I) if the Forced Conversion Event is a
Qualified Public Offering, the Current Value shall be
the offering price per share (prior to underwriter
commissions and discounts) in such Qualified Public
Offering;
(II) if the Forced Conversion Event is a Merger
or Asset Sale, the Current Value shall be the total
fair market value of the consideration paid to the
Corporation's stockholders in respect of the Common
Stock and Preferred Stock then held by them, divided by
the sum of (x) the total number of shares of Common
Stock then outstanding and (y) the total number of
shares of Common Stock into which all shares of
Preferred Stock then outstanding are then convertible.
If a Forced Conversion Event giving rise to an automatic conversion
under this Section 2(b)(ii) is a Qualified Public Offering, the person(s)
entitled to receive the Series A Common Stock issuable upon conversion of Common
Stock shall not be deemed to have converted that Common Stock until the closing
of such offering.
(c) Mechanics of Automatic and Forced Conversions. With respect to the
------------ ------------- ------------------
Preferred Stock, upon the occurrence of a Qualified Public Offering, and with
respect to the Convertible Common Stock, upon the occurrence of a Forced
Conversion Event (provided that the Board of Directors has elected to cause a
conversion of Convertible Common Stock in connection with such Forced Conversion
Event), such stock shall be converted automatically without any further action
by the holders of such shares and whether or not the certificates representing
such shares we surrendered to the Corporation or its transfer agent; provided,
however, that all holders of shares of stock to be converted shall be given
written notice of the occurrence the event pursuant to which such automatic or
forced conversion is occurring including the date such event occurred (the
"Mandatory Conversion Date"), and the Corporation shall not be obligated to
issue certificates evidencing the shares of Series A Common Stock issuable upon
such conversion unless certificates evidencing such shares of the Preferred
Stock or Convertible Common Stock being converted are either delivered to the
Corporation or its transfer agent, or the holder notifies the Corporation or any
transfer agent that such certificates have been lost, stolen, or destroyed
8
<PAGE>
and executes an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by it in connection therewith and, if the
Corporation so elects, provides an appropriate indemnity bond. On the Mandatory
Conversion Date, all rights and limitations with respect to the Preferred Stock
and Convertible Common Stock so converted shall terminate, except any of the
rights of the holder thereof, upon surrender of the holder's certificate or
certificates therefor, to receive certificates for the number of shares of
Series A Common Stock into which such Preferred Stock or Convertible Common
Stock has been converted, together with cash in an amount equal to all dividends
declared but unpaid on, and any and all other amounts owing with respect to, the
shares of Preferred Stock or Convertible Common Stock so converted to and
including the time of conversion. Upon the automatic conversion of the Preferred
Stock or the Convertible Common Stock, the holders of such Preferred Stock or
Convertible Common Stock, as the case may be, shall surrender the certificates
representing such shares at the office of the Corporation or of its transfer
agent. If so required by the Corporation, certificates surrendered for
conversion shall be endorsed or accompanied by written instrument or instruments
of transfer, in form satisfactory to the Corporation, duly executed by the
registered holder or by the holder's attorney duly authorized in writing. Upon
surrender of such certificates there shall be issued and delivered to such
holder, promptly at such office and in the holder's name as shown on such
surrendered certificate or certificates, a certificate or certificates for the
number of shares of Series A Common Stock into which the shares of the Preferred
Stock or Convertible Common Stock surrendered were convertible on the date on
which such automatic conversion occurred, together with cash in an amount equal
to all dividends declared but unpaid on, and any and all other amounts owing
with respect to, the shares of Convertible Common Stock or Preferred Stock
converted to and including the time of conversion. No fractional share of Series
A Common Stock shall be issued upon the automatic conversion of the Preferred
Stock or Convertible Common Stock. In lieu of any fractional share to which the
holder would otherwise be entitled, the Corporation shall pay, with respect to
Preferred Stock, cash equal to such fraction multiplied by the applicable
Conversion Price then in effect, and with respect to the Convertible Common
Stock, cash equal to such fraction multiplied by Current Value (as defined in
paragraph 2(b)(ii)(C) above).
(d) Mechanics of Optional Conversions. Before any holder of Preferred Stock
------------ --------------------
shall be entitled to convert the same into shares of Series A Common Stock, the
holder shall surrender the certificate or certificates therefor at the office of
the Corporation or of any transfer agent for the Preferred Stock, and shall give
written notice to the Corporation at such office that the holder elects to
convert the same and shall state therein the holder's name or the name or names
of the holder's nominees in which the holder wishes the certificate or
certificates for shares of Series A Common Stock to be issued. On the date of
conversion, all rights with respect to the Preferred Stock so converted shall
terminate, except any of the rights of the holder thereof, upon surrender of the
holder's certificate or certificates therefor, to receive certificates for the
number of shares of Series A Common Stock into which such Preferred Stock has
been converted and cash in an amount equal to all dividends declared but unpaid
on, and any and all other amounts owing with respect to, the shares of Preferred
Stock being converted to and including the time of conversion. If so required by
the Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or by
the holder's attorney duly authorized in writing. No fractional share of Series
A Common Stock shall be issued upon the optional
9
<PAGE>
conversion of Preferred Stock. In lieu of any fractional share to which the
holder would otherwise be entitled, the Corporation shall pay cash equal to such
fraction multiplied by the applicable Conversion Price then in effect. The
Corporation shall, as soon as practicable after surrender of the certificate or
certificates for conversion, issue and deliver at such office to such holder of
Preferred Stock, or to the holder's nominee or nominees, a certificate or
certificates for the number of shares of Series A Common Stock to which the
holder shall be entitled as aforesaid, together with cash in lieu of any
fraction of a share and cash in an amount equal to all dividends declared but
unpaid thereon and any and all other amounts owing with respect thereto at such
time. Such conversion shall be deemed to have been made immediately prior to the
close of business on the date of such surrender of the shares of Preferred Stock
to be converted, and the person or persons entitled to receive the shares of
Series A Common Stock issuable upon conversion shall be treated for all purposes
as the record holder or holders of such shares of Series A Common Stock on such
date.
(e) Adjustments for Certain Dividends and Distributions. In the event that
---------------------------------------------------
at any time or from time to time after the date on which a share of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock was first issued, or, with respect to the Series E Preferred
Stock, after December 1, 1999, whether or not any Series E Preferred Stock is
issued on such date (with respect to each such series of Preferred Stock, its
"Original Issue Date"), the Corporation shall make or issue, or fix a record
date for the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in securities of the Corporation other
than shares of Common Stock, then and in each such event provision shall be made
so that the holders of Preferred Stock shall receive upon conversion thereof in
addition to the number of shares of Common Stock receivable thereupon, the
amount of securities of the Corporation that they would have received had their
Preferred Stock been converted into Common Stock on the date of such event and
had they thereafter, during the period from the date of such event to and
including the conversion date, retained such securities receivable by them as
aforesaid during such period, giving application during such period to all
adjustments called for herein.
(f) Adjustment for Reclassification, Exchange, or Substitution. In the
----------------------------------------------------------
event that at any time or from time to time after the Original Issue Date, the
Common Stock issuable upon the conversion of Preferred Stock shall be changed
into the same or a different number of shares of any class or classes of stock,
whether by capital reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares or stock dividend provided for above, or a
merger, consolidation, or sale of assets provided for below), then and in each
such event the holder of any share or shares of Preferred Stock shall have the
right thereafter to convert such shares into the kind and amount of shares of
stock and other securities and property receivable upon such reorganization,
reclassification, or other change, by the holder of a number of shares of Common
Stock equal to the number of shares of Common Stock into which such shares of
Preferred Stock might have been converted immediately prior to such
reorganization, reclassification, or change, all subject to further adjustment
as provided herein.
(g) Adjustment for Merger, Consolidation or Sale of Assets. In the event
------------------------------------------------------
that at any time or from time to time after the Original Issue Date, the
Corporation shall merge or consolidate with or into another entity or sell all
or substantially all of its assets, each share of
10
<PAGE>
Preferred Stock as to which such consolidation, merger or sale is not treated as
a liquidation under Subsection 1(c) shall thereafter be convertible into the
kind and amount of shares of stock or other securities or property to which a
holder of the number of shares of Common Stock of the Corporation deliverable
upon conversion of such Preferred Stock would have been entitled to receive upon
such consolidation, merger or sale; and, in such case, appropriate adjustment
(as determined in good faith by the Board of Directors) shall be made in the
application of the provisions set forth in this Section 2 with respect to the
rights and interest thereafter of the holders of Preferred Stock, to the end
that the provisions set forth in this Section 2 (including provisions with
respect to changes in and other adjustments of the Conversion Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the conversion of
Preferred Stock.
(h) Adjustments to Series D Conversion Price and Series E Conversion Price
----------------------------------------------------------------------
for Dilutive Issuances:
- ----------------------
(i) Special Definitions. For purposes of this Subsection 2(h), the
-------------------
following definitions shall apply:
(A) "Option" shall mean rights, options or warrants to subscribe
------
for, purchase or otherwise acquire Common Stock or Convertible Securities.
(B) "Convertible Securities" shall mean any evidences of
----------------------
indebtedness, shares or other securities directly or indirectly convertible into
or exchangeable for Common Stock.
(C) "Additional Shares of Common Stock" shall mean all shares of
---------------------------------
Common Stock issued (or, pursuant to Subsection 2(h)(iii) below, deemed to be
issued) by the Corporation after the Series E Original Issue Date, other than:
(I) shares of Common Stock issued or issuable as a dividend
or other distribution on Preferred Stock;
(II) shares of Common Stock issued or issuable by reason of
a dividend or other distribution on shares of Common
Stock that is covered by Subsection 2(e) above;
(III) shares of Common Stock issued or issuable upon
conversion of those shares of Preferred Stock
outstanding at the close of business on the Series E
Original Issue Date;
(IV) shares of Common Stock issued or issuable upon
conversion of the Convertible Common Stock.
(V) shares of Common Stock or options to acquire Common
Stock approved by the Compensation Committee (acting
alone or with the Board of Directors) of the
Corporation,
11
<PAGE>
issued or issuable to employees or directors of, or
consultants to, the Corporation pursuant to plans
adopted by the Board of Directors of the Corporation,
so long as the total of all stock options or stock
grants issued under all of the Corporation's stock
option plans does not exceed 25% of the outstanding
capital stock of the Corporation on a fully diluted
basis.
(D) For purposes of this Section 2(h), the term "Series E" shall be
deemed to refer separately to each subseries of the Series E Stock.
(ii) No Adjustment of Conversion Price. No adjustment in the number of
---------------------------------
shares of Common Stock into which the Series D Preferred Stock or the Series H
Preferred Stock is convertible shall be made (a) unless the consideration per
share (determined pursuant to Subsection 2(h)(v)) for an Additional Share of
Common Stock issued or deemed to be issued by the Corporation is less than the
applicable Conversion Price in effect on the date of, and immediately prior to,
the issue of such Additional Shares, or (b) if prior to or within 60 days
subsequent to such issuance, the Corporation receives written notice from the
holders of at least 66% of the then outstanding shares of Series D Preferred
Stock and Series E Preferred Stock, voting as a single class, agreeing that no
such adjustment shall be made as the result of the issuance of Additional Shares
of Common Stock.
(iii) Issuance of Securities Deemed an Issuance of Additional Shares
--------------------------------------------------------------
of Common Stock. If the Corporation at any time or from time to time after the
- ---------------
Series E Original Issue Date shall issue any Options or Convertible Securities
or shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities, then
the maximum number of shares of Common Stock (as set forth in the instrument
relating thereto without regard to any provision contained therein for a
subsequent adjustment of such number) issuable upon the exercise of such Options
or, in the case of Convertible Securities and Options therefor, the conversion
or exchange of such Convertible Securities, shall be deemed to be Additional
Shares of Common Stock issued as of the time of such issue or, in case such a
record date shall have been fixed, as of the close of business on such record
date, provided that Additional Shares of Common Stock shall not be deemed to
have been issued unless the consideration per share (determined pursuant to
Subsection 2(h)(v) hereof) of such Additional Shares of Common Stock would be
less than the applicable Conversion Price in effect on the date of and
immediately prior to such issue, or such record date, as the case may be, and
provided further that in any such case in which Additional Shares of Common
Stock are deemed to be issued:
(A) No further adjustment in the Conversion Price shall be made upon
the subsequent issue of Convertible Securities or shares of Common Stock upon
the exercise of such Options or conversion or exchange of such Convertible
Securities;
(B) If such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase or decrease in
the consideration payable to the Corporation, upon the exercise, conversion or
exchange thereof, the Conversion Price
12
<PAGE>
computed upon the original issue thereof (or upon the occurrence of a record
date with respect thereto), and any subsequent adjustments based thereon, shall,
upon any such increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the rights of
conversion or exchange under such Convertible Securities;
(C) Upon the expiration or termination of any unexercised Option, the
Conversion Price shall be readjusted, so that the Additional Shares of Common
Stock deemed issued as the result of the original issue of such Option shall not
be deemed issued for the purposes of the Conversion Price;
(D) In the event of any change in the number of shares of Common
Stock issuable upon the exercise, conversion or exchange of any Option or
Convertible Security, including, but not limited to, a change resulting from the
anti-dilution provisions thereof, the Conversion Price then in effect shall
forthwith be readjusted to such Conversion Price as would have obtained had the
adjustment which was made upon the issuance of such Option or Convertible
Security not exercised or converted prior to such change been made upon the
basis of such change; and
(E) No readjustment pursuant to clause (B) or (D) above shall have the
effect of increasing the Conversion Price to an amount which exceeds the lower
of (i) the Conversion Price on the original adjustment date, or (ii) the
Conversion Price that would have resulted from any issuances of Additional
Shares of Common Stock between the original adjustment date and such
readjustment date.
In the event the Corporation, after the Series E Original Issue Date,
amends any Options or Convertible Securities (whether such Options or
Convertible Securities were outstanding on the Series E Original Issue Date or
were issued after the Series E Original Issue Date) to increase the number of
shares issuable thereunder or decrease the consideration to be paid upon
exercise or conversion thereof, then such Options or Convertible Securities, as
so amended, shall be deemed to have been issued after the Series E Original
Issue Date and the provisions of this Subsection 2(h)(iii) shall apply.
(iv) Adjustment of Conversion Price Upon Issuance of Additional Shares
-----------------------------------------------------------------
of Common Stock. In the event the Corporation shall at any time after the
- ---------------
Series E Original Issue Date issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Subsection
2(h)(iii), but excluding shares issued as a stock split or combination as
provided in Subsection 2(f) or upon a dividend or distribution as provided in
Subsection 2(e)), without consideration or for a consideration per share less
than the applicable Series D Conversion Price and/or the Series E Conversion
Price in effect on the date of and immediately prior to such issue, then the
Series D Conversion Price and/or the Series E Conversion Price, as applicable,
in effect immediately prior to each such issuance shall forthwith (except as
otherwise provided in this clause (A)) be reduced to the price determined by
dividing (i) an amount equal to the sum of (a) the number of shares of Common
Stock outstanding immediately prior to such issue or sale multiplied by the then
existing Series D Conversion Price or Series E Conversion Price, as applicable,
and (b) the consideration, if any, received by the
13
<PAGE>
Corporation upon such issue or sale, by (ii) the total number of shares of
Common Stock outstanding immediately after such issue or sale.
(v) Determination of Consideration. For purposes of this Subsection
------------------------------
2(h), the consideration received by the Corporation for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(A) Cash and Property: Such consideration shall:
-----------------
(I) insofar as it consists of cash, be computed at the
aggregate of cash received by the Corporation,
excluding amounts paid or payable for accrued interest;
(II) insofar as it consists of property other than cash, be
computed at the fair market value thereof at the time
of such issue, as determined in good faith by the Board
of Directors; and
(III) in the event Additional Shares of Common Stock are
issued together with other shares or securities or
other assets of the Corporation for consideration which
covers both, be the proportion of such consideration so
received, computed as provided in clauses (I) and (II)
above, as determined in good faith by the Board of
Directors.
(B) Options and Convertible Securities. The consideration per
----------------------------------
share received by the Corporation for Additional Shares of Common Stock deemed
to have been issued pursuant to Subsection 2(h)(iii), relating to Options and
Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or receivable by
the Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration) payable to
the Corporation upon the exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities, by
(y) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
(vi) Multiple Closing Dates. In the event the Corporation shall issue
----------------------
on more than one date Additional Shares of Common Stock which are comprised of
shares of the same
14
<PAGE>
series or class of Convertible Securities, and such issuance dates occur within
a period of no more than 120 days, then, upon the final such issuance, the
Conversion Price shall be adjusted to give effect to all such issuances as if
they occurred on the date of the final such issuance (and without giving effect
to any adjustments as a result of such prior issuances within such period).
(i) No Impairment. The Corporation shall not, by amendment of its
-------------
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation but shall at
all times in good faith assist in the carrying out of all the provisions of this
Section 2 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of
Preferred Stock against impairment.
(j) Certificate as to Adjustments of the Series D Conversion Price and/or
---------------------------------------------------------------------
the Series E Conversion Price. Upon the occurrence of each adjustment or
- -----------------------------
readjustment of the Conversion Price of the Series D Preferred Stock or the
Series E Preferred Stock pursuant to this Section 2, the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each affected holder of Series D Preferred
Stock or Series E Preferred Stock, as the case may be, a certificate setting
forth such adjustment or readjustment and showing in detail the facts upon which
such adjustment or readjustment is based. The Corporation shall, upon the
written request at any time of any affected holder of Series D Preferred Stock
or Series E Preferred Stock, furnish or cause to be furnished to such holder a
like certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Price at the time in effect, and (iii) the number of shares of Common
Stock and the amount, if any, of other property which at the time would be
received upon the conversion of each share of Series D Preferred Stock or Series
E Preferred Stock, as the case may be.
(k) Notices of Record Date. In the event of any taking by the Corporation
----------------------
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than a cash dividend which is the same as cash dividends paid in previous
quarters) or other distribution, the Corporation shall mail to each holder of
Preferred Stock at least ten (10) days prior to such record date a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend or distribution.
(1) Common Stock Reserved. The Corporation shall reserve and keep
---------------------
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall from time to time be sufficient to effect conversion of
the Preferred Stock.
(m) Certain Taxes. The Corporation shall pay any issue or transfer taxes
-------------
payable in connection with the conversion of Preferred Stock, provided, however,
that the Corporation shall not be required to pay any tax which may be payable
in respect of any transfer to a name other than that of the holder of the
Preferred Stock.
(n) Closing of Books. The Corporation shall at no time close its transfer
----------------
books against the transfer of any Preferred Stock or of any shares of Common
Stock issued or issuable
15
<PAGE>
upon the conversion of any shares of Preferred Stock in any manner which
interferes with the timely conversion or transfer of such Preferred Stock or
Common Stock.
Section 3. Restrictions.
- --------- ------------
(a) At any time when shares of Series D Preferred Stock are outstanding,
except where the vote or written consent of the holders of a greater number of
shares of the Corporation is required by law or by the Certificate of
Incorporation and in addition to any other vote required by law or the
Certificate of Incorporation, without the approval of the holders of at least a
majority of the then outstanding shares of Series D Preferred Stock, given in
writing or by vote at a meeting, consenting or voting (as the case may be), the
Corporation will not:
(i) amend the Company's Certificate of Incorporation or By-Laws in
such a manner that would adversely affect the preferences, rights, privileges or
powers of, or the restrictions provided for the benefit of, the Series D
Preferred Stock; or
(ii) reclassify any other series of Preferred Stock or junior stock
into shares having any preference or priority as to dividends or assets that is
on parity with or superior to any preference or priority of the Series D
Preferred Stock.
(b) At any time when shares of Series E Preferred Stock are outstanding,
except where the vote or written consent of the holders of a greater number of
shares of the Corporation is required by law or by the Certificate of
Incorporation and in addition to any other vote required by law or the
Certificate of Incorporation, without the approval of the holders of at least
two thirds of the then outstanding shares of Series E Preferred Stock, given in
writing or by vote at a meeting, consenting or voting (as the case may be), the
Corporation will not:
(i) amend the Company's Certificate of Incorporation or By-Laws in
such a manner that would adversely affect the preferences, rights, privileges or
powers of, or the restrictions provided for the benefit of, the Series E
Preferred Stock; or
(ii) reclassify any other series of Preferred Stock or junior stock
into shares having any preference or priority as to dividends or assets that is
on parity with or superior to any preference or priority of the Series E
Preferred Stock.
(c) At any time when shares of Series D Preferred Stock or Series E
Preferred Stock are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or
by the Certificate of Incorporation and in addition to any other vote required
by law or the Certificate of Incorporation, without the approval of the holders
of at least a majority of the then outstanding shares of Series D Preferred
Stock and Series E Preferred Stock, acting as a single class, given in writing
or by vote at a meeting, consenting or voting (as the case may be), the
Corporation will not:
(i) authorize or issue any new or existing class or series of capital
stock or any other debt or equity instrument convertible into or exchangeable
for, or having rights to purchase
16
<PAGE>
any shares of stock of the Company, having any preference or priority as to
dividends or distributions of assets on liquidation on parity with or superior
to the Series D Preferred or the Series E Preferred Stock; or
(ii) engage in any merger or consolidation of the Company with or into
any other entity (except one in which the holders of capital stock of the
Corporation immediately prior to such merger or consolidation continue to hold
at least fifty percent (50%) in voting power of the capital stock of the
surviving corporation immediately after the merger), or the sale, lease,
exchange or other disposition of all or substantially all of the Company's
property and assets.
(d) With respect to the Series A Preferred Stock, Series B Preferred Stock
and Series C Preferred Stock, at any time when shares of such series are
outstanding, (for purposes of this Section 3(d), each such series being referred
to as an "Affected Series") except where the vote of the holders of a greater
number of shares of the Affected Series is required by law or by this
Certificate of Incorporation, and in addition to any other vote required by law
or this Certificate of Incorporation, without the affirmative vote or written
consent of the holders of at least a majority of the then outstanding shares of
the Affected Series, the Corporation will not (i) amend, alter or change the
designation or any preferences, voting powers, qualifications, or special or
relative rights or privileges of the Affected Series in a manner adverse to the
interests of the holders of the Affected Series in any material respect or (ii)
increase the authorized number of shares of the Affected Series.
(e) Notwithstanding any other provision of this Certificate of
Incorporation or the Corporation's By-laws to the contrary, notice of any action
specified in Section 3(a) shall be given by the Corporation to each holder of
outstanding shares of the Series D Preferred Stock, notice of any action
specified in Section 3(b) shall be given by the Corporation to each holder of
outstanding shares of the Series E Preferred Stock, notice of any action
specified in Section 3(c) shall be given by the Corporation to each holder of
outstanding shares of the Series D Preferred Stock and Series H Preferred Stock,
and notice of any action specified in Section 3(d) shall be given by the
Corporation to each holder of outstanding shares of the Affected Series, such
notice to be given by first class mail, postage prepaid, or by fax, or DHL,
Federal Express or other recognized express international courier service in the
case of non-U.S. stockholders, addressed to such holder at the last address of
such holder as shown by the records of the Corporation, at least twenty (20)
days before the date on which the books of the Corporation shall close or a
record shall be taken with respect to such proposed action, or, if there shall
be no such date, at least twenty (20) days before the date when such proposed
action is scheduled to take place. Any holder of outstanding shares of Preferred
Stock may waive any notice required by this Section by a written document
specifically indicating such waiver.
17
<PAGE>
Section 4. Voting Rights.
- --------- -------------
(a) Except as otherwise required by law or herein set forth, the holders
of Preferred Stock shall be entitled to notice of any meeting of stockholders
and shall vote together with the holders of Common Stock of all series as a
single class upon any matter submitted to the stockholders for a vote. With
respect to all questions as to which, under law, stockholders are required to
vote by classes, each of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
shall vote separately as a single class apart from each other and from the
Common Stock. Shares of Common Stock and Preferred Stock shall entitle the
holders thereof to the following number of votes on any matter as to which they
are entitled to vote:
(i) Holders of Common Stock of any series shall have one vote per
share; and
(ii) Holders of Preferred Stock shall have that number of votes per
share as is equal to the number of shares of Common Stock (including fractions
of a share) into which each such share of Preferred Stock held by such holder
could be converted on the date for determination of stockholders entitled to
vote at the meeting or on the date of any written consent.
(b) Board of Directors.
-------- ---------
(i) Board Size. The Corporation shall not, without the written
----------
consent or affirmative vote of the holders of at least fifty-one percent (51%)
of the then outstanding shares of Preferred Stock, given in writing or by vote
at a meeting, consenting or voting (as the case may be) separately as a class,
increase the maximum number of directors constituting the Board of Directors to
a number in excess of seven.
(ii) Board Seats. The holders of the Series D Preferred Stock, voting
-----------
separately as a class, shall have the right to elect one director of the Board
of Directors (the "Series D Director"). As long as it holds 10% or more of the
outstanding capital stock of the Corporation (calculated as if all Preferred
Stock were converted to Common Stock), Thomson Information Services, Inc.
("TIS") shall be entitled to elect two directors of the Corporation. As long as
it holds 5% (but less than 10%) of the outstanding capital stock of the
Corporation (calculated as if all Preferred Stock were converted to Common
Stock), TIS shall be entitled to elect one director of the Corporation. As long
as it holds at least 2% of the outstanding capital stock of the Corporation
(calculated as if all Preferred Stock were converted to Common Stock), America
Online, Inc. ("AOL") shall be entitled to elect one Director of the Corporation
or, at its option, appoint an observer to the Board of Directors in lieu of
electing such Director. A vacancy in any directorship elected by any of the
holders of Series D Preferred Stock, TIS or AOL shall be filled by the holders
of Series D Preferred Stock, TIS or AOL, as the case may be.
18
<PAGE>
Section 5. Dividends.
- --------- ---------
(a) Dividends may be declared and paid on the Preferred Stock from funds
lawfully available therefor as and when determined by the Board of Directors of
the Corporation.
(b) Dividends may be declared and paid on Common Stock from funds lawfully
available therefor as and when determined by the Board of Directors of the
Corporation; provided that if dividends are declared and paid on shares of
--------
Common Stock, the Corporation shall first declare and pay to each holder of
Preferred Stock, a dividend equal to the dividend which would have been payable
to such holder if the shares of Preferred Stock held by such holder had been
converted into Common Stock on the record date for the determination of holders
of Common Stock entitled to receive the Common Stock dividend.
Section 6. Residual Rights. All rights accruing to the outstanding shares of the
- --------- ---------------
Corporation not expressly provided for to the contrary herein shall be vested in
the Common Stock.
FIFTH: In furtherance of and not in limitation of powers conferred by statute,
- -----
it is further provided that:
(a) Subject to the limitations and exceptions, if any, contained in the
By-Laws of the Corporation, the By-Laws may be adopted, amended or repealed by
the Board of Directors of the Corporation; and
(b) Elections of directors need not be by written ballot unless, and only
to the extent, otherwise provided in the By-Laws; and
(c) Subject to any applicable requirements of law, the books of the
Corporation may be kept outside the State of Delaware at such locations as may
be designated by the Board of Directors or in the By-Laws of the Corporation;
and
(d) Except as provided to the contrary in the provisions establishing a
class or series of stock, the number of authorized shares of such class or
series may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote or written consent of a majority in
voting power of the stock of the Corporation entitled to vote, voting together
as a single class.
SIXTH: The Corporation shall indemnify each person who at any time is, or shall
- -----
have been, a director or officer of the Corporation and was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement incurred in connection
with any such action, suit or proceeding, to the maximum extent permitted by the
General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended. The foregoing right of indemnification shall in no way be
exclusive of
19
<PAGE>
any other rights of indemnification to which any such director or officer may be
entitled, under any By-Law, agreement, vote of directors or stockholders or
otherwise. No amendment to or repeal of the provisions of this Article SIXTH
-----
shall deprive a director or officer of the benefit hereof with respect to any
act or failure to act occurring prior to such amendment or repeal.
SEVENTH: Whenever a compromise or arrangement is proposed between this
- -------
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
EIGHTH: No director of the Corporation shall be personally liable to the
- ------
Corporation or to any of its stockholders for monetary damages arising out of
such director's breach of his or her fiduciary duty as a director of the
Corporation, except to the extent that the elimination or limitation of such
liability is not permitted by the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended. No amendment to or
repeal of the provisions of this Article EIGHTH shall deprive any director of
------
the Corporation of the benefit hereof with respect to any act or failure to act
of such director occurring prior to such amendment or repeal.
NINTH: The Corporation reserves the right to amend, alter, change or repeal any
- -----
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by statute and this Certificate of Incorporation, and all
rights conferred upon stockholders herein, are granted subject to this
reservation.
20
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused its Corporate seal to be
affixed hereto and this Second Amended and Restated Certificate of Incorporation
to be signed by its duly authorized officer this 1st day of December, 1999.
/s/ Robert Adler
--------------------------
Robert I. Adler, President
<PAGE>
EXHIBIT 10.05
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This Interactive Services Agreement (this "Agreement"), effective as of
December 23, 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 CCBN.com, Inc.
("Interactive Content Provider" or "ICP"), a Delaware corporation, with its
principal offices at 200 Portland Street, Boston, MA 02114 (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 Programming and Distribution. Beginning on a mutually agreed upon
----------------------------
date(s) after the Effective Date, but in no event later than the date
by which ICP shall have achieved Site and Content Preparation (as
defined in Section 6.4 hereof), AOL shall provide ICP with the
promotions set forth on Exhibit A-1. The promotions described on
Exhibit A-1 and any other promotions provided by AOL to ICP shall be
referred to as the "Promotions." AOL will have the right to fulfill
the foregoing promotional commitments by providing ICP with comparable
promotional placements in appropriate alternative areas of the AOL
Network, provided that prior to providing ICP with any such comparable
promotional placements that are [**] of the [**], AOL shall seek ICP's
approval, which approval shall not be unreasonably withheld or
delayed. If AOL is unable to deliver any particular Promotion, AOL
will provide ICP, as its sole remedy, with a comparable promotional
placement within the same AOL Property (e.g., in the case of the [**]
within the [**])and at the same [**] as the Promotion not delivered by
AOL. 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. ICP shall comply with the
programing requirements and provide the Content set forth on Exhibit
A. AOL's provision of Promotions in connection with any particular AOL
Property shall be conditioned upon ICP's compliance in all material
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
respects with the programming requirements and provision of the
Content set forth on Exhibit A-1 for such AOL Property.
1.2 Content. The ICP Programming shall consist of the Content described
-------
on the programming plan attached as Exhibit A-2 (the "Programming
Plan") and shall not contain any pointers or links to any other area
on or outside the AOL Network, other than as described on Exhibit A
with respect to such ICP Programming, without AOL's prior written
consent (not to be unreasonably withheld). The ICP Internet Site
shall consist of the Content described on the Programming Plan and any
other Content as to which the Parties may mutually agree from time to
time. 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 for
distribution through the AOL Network (including, without limitation,
any features, functionality or technology) not expressly described on
Exhibit A shall be subject to AOL's prior written approval.
1.3 License. ICP hereby grants AOL a non-exclusive worldwide license to
-------
use, market, license, store, distribute, reproduce, display, adapt (to
[**] permitted by the terms of this Agreement, to [**] with the [**]
and as otherwise permitted by the terms of this Agreement),
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, during the Term, as AOL may
determine in its sole discretion, 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. Any Linked ICP Interactive Sites
shall be subject to the foregoing license.
1.4 Management; Network Costs.
-------------------------
1.4.1 Site, Licensed Content and Programming Management. ICP shall
-------------------------------------------------
design, create, edit, manage, review, update (on a regular
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 use commercially reasonable efforts
to 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, timeliness,
functionality, features, prices of products
-2-
<PAGE>
and services and terms and conditions, except to the extent
inclusion of such Content would other-wise violate this
Agreement and except as otherwise expressly stated on Exhibit
A. Notwithstanding the foregoing, the Parties acknowledge and
agree that the Content available on the Institutional Investor
Interactive Site may differ in material respects from the
Content offered on the ICP Internet Site; provided, however,
-------- -------
that ICP shall not offer any consumer-oriented Content to any
other Interactive Service that is materially different in any
respect from any consumer-oriented (e.g., non-institutional
investor-oriented) Content offered to AOL Members. Except as
specifically provided for herein, AOL shall have no obligations
of any kind with respect to the ICP Internet Site or ICP
Programming.
1.4.2 Hosting, Communication and Network Costs. ICP shall be
----------------------------------------
responsible for any hosting or communication costs associated
with the ICP Internet Site and ICP Programming (including any
Linked Interactive Sites), 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. All AOL network costs associated with the delivery of ICP
Content, including multimedia events through the AOL Network,
will be covered through the Quarterly Payments. ICP will work
with AOL to minimize network costs indirectly or directly
incurred as a result of delivering the ICP Content. Upon mutual
agreement of the Parties, AOL may host the ICP Internet Site
and ICP Programming and ICP shall be responsible for any costs
associated with such hosting. In addition, AOL may elect to
host certain events, and AOL shall be responsible for any costs
associated with such hosting.
1.4.3 No Registration; Site Access. Without AOL's prior approval,
----------------------------
which will not be unreasonably withheld, AOL Members shall not
be required to go through a registration process (or any
similar process) in order to access and use the ICP Internet
Site, ICP Programming (including any Linked ICP Interactive
Site) or the Licensed Content. During the Term and for the two
(2) year period after the expiration or termination thereof,
ICP shall not prevent AOL Members from accessing and/or using
any ICP Interactive Site on terms and conditions that are as
favorable as the terms and conditions available to other users
of such ICP Interactive Site.
-3-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1.4.4 Failure to Comply with Material Obligations.
-------------------------------------------
(a) ICP Technical Problem. ICP shall ensure that the ICP
---------------------
Internet Site complies at all times, in all material
respects, with the standards set forth in Exhibit E
hereto. In the event of any ICP Technical Problem (as
defined in Exhibit B), AOL shall have the right to block
AOL Member access to the ICP Internet Site until such time
as ICP cures such ICP Technical Problem. In the event that
ICP fails to cure any such ICP Technical Problem within
[**] business days, ICP shall be deemed to be in
breach of the Agreement and the thirty (30) day cure
period set forth in Section 6.2 of the Agreement shall
begin to toll. AOL shall have the right (in addition to
any other remedies available to AOL hereunder (e.g., any
blocking right)) to reduce (on a pro rata basis) the
Impressions Target until such time as ICP cures such ICP
Technical Problem (i.e., for each day such ICP Technical
Problem exists beyond such initial [**] business day
period, the Impressions Target shall be reduced by [**]
of the Impressions to be provided by AOL hereunder), and
in such event, AOL shall be relieved of the proportionate
amount of the Impressions Target corresponding to such
reduction in Impressions.
(b) Non-Compliant Content. In the event that AOL notifies ICP
---------------------
of the existence of any Content on the ICP Internet Site
that violates the terms or conditions of this Agreement
("Non-Compliant Content"), AOL shall have the right to
immediately block AOL Member access to the ICP Internet
Site, and ICP shall promptly remove such Content. In the
event of the existence of any Non-Compliant Content, AOL
shall have the right (in addition to any other remedies
available to AOL hereunder (e.g., any blocking right)) to
immediately reduce (on a pro rata basis) the Impressions
Target until such time as ICP cures such Non-Compliant
Content (and in such event, AOL shall be relieved of the
proportionate amount of the Impressions Target
corresponding to such reduction in Impressions) (i.e., for
each day such Non-Compliant Content exists, the
Impressions Target shall be reduced by [**] of the
Impressions to be provided by AOL hereunder). In the event
that ICP fails to cure such Non-Compliant Content within
[**] days of receiving notice from AOL, AOL shall
have the right to terminate this Agreement.
-4-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
1.5 Carriage Fee.
------------
1.5.1 Schedule. ICP shall pay AOL Fourteen Million One Hundred
--------
Thousand Dollars ($14,100,000.00) according to the quarterly
payment schedule set forth on Schedule 1.5 attached hereto (the
"Quarterly Payments"), on the quarterly dates set forth on such
Schedule.
1.5.2 Wired Payments. All payments by ICP hereunder shall be paid in
--------------
immediately available, non-refundable U.S. funds wired to the
"America Online" account, Account Number [**] at the Chase
Manhattan Bank, 1 Chase Manhattan Plaza, New York, New York
10081 (ABA: 021000021), or such other account of which AOL
shall give ICP written notice.
1.5.3 Late Payments. In the event a Quarterly Payment is overdue by
-------------
fifteen (15) days following notice thereof to ICP, AOL, (i) may
reduce the relevant Advertising Revenue Share to be paid to ICP
by AOL hereunder up to such amount as is sufficient to offset
the overdue payment due AOL, until such amount has been fully
offset and (ii) in addition to any other remedies available to
AOL hereunder, AOL may terminate this Agreement. Interest on
any such overdue payment shall accrue at the Prime Rate plus
two percent (2%) per annum.
1.5.4 Warrants. ICP shall provide AOL with common stock purchase
--------
warrants evidencing AOL's right to purchase stock of ICP, on
the terms and conditions as specified in the warrant agreement
attached hereto as Exhibit G (the "Warrant Agreement"), to be
executed concurrently with this Agreement. In the event a
Quarterly Payment is overdue by forty-five (45) days following
notice thereof to ICP, and a reduction in the relevant
Advertising Revenue Share to be paid to ICP by AOL hereunder is
not sufficient to offset the overdue payment due AOL, then AOL
shall have the right to have such warrants begin vesting
immediately at a rate to be calculated as follows: until the
earlier of (a) the date on which such overdue payment is made,
or (b) the date on which all warrants have fully vested, an
additional 5% of the total number of "Acceleration Warrants"
shall vest, where "Acceleration Warrants" means such number of
warrants as is calculated according to the following formula:
-5-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
AW=1.2 * ( X * WAR)
where AW is the number of Acceleration Warrants, X is the total
amount of payment due AOL which is then overdue, and WAR is the
warrant-to-advertising-revenue ratio then applicable pursuant
to the Warrant Agreement (that is, the number of warrants
issuable, at the time, under the Warrant Agreement, per dollar
of advertising revenue generated by AOL).
1.5.5 Advertising Payments. Notwithstanding anything to the contrary
--------------------
in Schedule 4.2, during the period between the Effective Date
and September 1, 2000, [**] of the Advertising Revenue Share
(as defined in Section 4.1 below) shall be paid back to AOL by
ICP and shall be credited toward ICP's September 1, 2000
carriage payment, until the earlier of (a) the date on which
the September 1, 2000 carriage payment has been paid in full
via such Advertising Revenue Share payments back to AOL, or (b)
September 1, 2000 (when ICP shall pay any remaining portion of
the September 1, 2000 carriage payment to AOL).
1.6 Impressions Target. During the Term, AOL shall provide ICP with [**]
------------------
Impressions from ICP's presence on the AOL Network (the "Impressions
Target"); provided that AOL shall use commercially reasonable efforts
--------
to deliver the aforementioned Impressions as evenly as practicable
over each calendar quarter over the course of the Term. For the
purposes of this Agreement, ICP's presence on an AOL screen shall
conform to the specifications of an ICP Presence, provided that only
screens that contain a link to the ICP Internet Site or ICP
Programming will count against the Impressions Target. 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, at AOL's option either (a) the Term shall be extended for up
to six (6) months without additional carriage fees payable by ICP, (b)
AOL shall, from time to time, 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), 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 or any other distribution
channel; provided, however, that ICP shall not be required to promote
-------- -------
through the ICP Internet Site offers the sole purpose of which is to
attract or retain public corporations as clients or institutional
investors as subscribers. In addition, ICP shall work with AOL to
promote through the ICP Internet Site on a
-6-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
regular basis (but in any event not less than once per quarter)
special offers exclusively available to AOL Members ("AOL Exclusive
Offers"). The AOL Exclusive Offers made available by ICP shall provide
a substantial member benefit to AOL Members, either by virtue of a
meaningful price discount, product enhancement, unique service benefit
or other special feature (e.g., a special speaker, etc.). ICP will
provide AOL with reasonable prior notice of AOL Exclusive Offers and
other special offers so that AOL can, in its editorial discretion,
market the availability of such offers.
1.8 Premier Status.
--------------
1.8.1 Generally. So long as ICP is in compliance with all material
---------
terms of this Agreement, during the Term, ICP will be the
premier aggregator of IR Information (as defined in Exhibit B)
that is promoted by [**] (the "Premier Status"). Such Premier
Status shall include, [**] the following:
(a) AOL shall list the ICP Internet Site in AOL's "Directory
of Services" and "Find" features;
(b) AOL shall not enter into an agreement during the Term with
any ICP Competitor with respect to the provision of
additional IR Information on or through the Premier Areas
(e.g., related to other companies not currently
contemplated by the terms of this Agreement), without also
providing ICP with a good-faith opportunity to bid on the
provision of such additional IR Information on or through
the Premier Areas. AOL shall negotiate in good-faith with
ICP with respect to such bid from ICP;
(c) Once the Premier Areas have completed the year 2000
redesign, the Personal Finance [**] (when commercially
available to AOL Members) and the IR Information link from
the primary Quotes page within the Premier Areas shall be
[**] (i.e., the majority of AOL Members shall
not have to [**] the relevant Promotion).
AOL's provision of the Premier Status to ICP is contingent upon
ICP's full performance of all material obligations and full
compliance with all material conditions set forth in this
Agreement, including without limitation, ICP's payment of all
fees due and owing by ICP under (and pursuant to the terms of)
this Agreement. In the event of any substantial redesign of the
AOL Personal Finance Channel during the Term, AOL shall use
commercially reasonable
-7-
<PAGE>
efforts to ensure that such redesign shall not have a material
adverse effect on the Premier Status. Any Dispute regarding
whether any such redesign has a material adverse effect on the
Premier Status shall be submitted to the Management Committee
for final resolution pursuant to Section VII of Exhibit C to
this Agreement.
1.8.2 AOL Right to Terminate ICP Premier Status.
-----------------------------------------
(a) AOL shall have the right to terminate the Premier
Status upon ICP's failure to fully perform all material
obligations or fully comply with all material
conditions set forth in this Agreement; and
(b) AOL shall have the right to terminate, in whole or in
part, the Premier Status, in the event that at any time
during the Term, the ICP Internet Site is not the top
ranked Internet site whose principal business is the
provision of aggregated investor relations web site
content, in terms of, when taken as a whole: (a)
quality based upon a cross-section of independent
third-party reviewers who are recognized authorities in
the investor relations industry and with respect to all
material quality averages or standards in the investor
relations category, including without limitation,
quality, breadth, depth, timeliness, accuracy and
reliability of the Content; functionality, features,
ease of use and user interface of the site; and prices
and terms and conditions of Products offered on the
site and (b) both traffic, as measured by page views
for IR Information components of third-party Internet
Sites, and audience reach, as measured by share or
percentage of Internet online users as reported by
Media Metrix or similar organization reasonably
determined by AOL.
1.8.2.1 Permissible AOL Activities. Notwithstanding anything to
--------------------------
the contrary in Section 1.8.1 above (and without
limiting any actions which may be taken by AOL without
violation of ICP's rights hereunder), no provision of
this Agreement will limit AOL's ability (on or off the
AOL Network) to:
(a) undertake activities or perform duties pursuant to
(A) arrangements with third parties existing as of
the Effective Date and (B) any agreements to which
AOL becomes a party subsequent to the Effective
Date as a result of Change of Control, or merger,
acquisition or other similar transaction;
provided, however, that AOL shall use commercially
-------- -------
-8-
<PAGE>
Confidential Materials Omitted and filed separately with the
Securities and Exchange Commission Asterisks denote omissions.
reasonable efforts not to promote any such third
parties' IR Information in the Premier Areas in a
manner that would have a material adverse effect on
ICP's Premier Status;
(b) sell or provide advertising (e.g., banners, buttons,
links, sponsorships), including without limitation
standard placements in any shopping area or channel, to
any third party (including other providers of IR
Information); provided, however, that none of such
-------- -------
advertising shall be sold or provided on the ICP
Internet Site;
(c) create editorial programming and paid-for contextual
links (which programming may relate to and/or include
Content involving IR Information from other providers);
or
(d) enter into arrangements with any third party for the
primary purpose of acquiring AOL Members whereby such
third party is allowed to promote or market its
products or services to AOL Members that are acquired
as a result of such arrangement.
2. PROMOTION
---------
2.1 Cooperation. Each Party shall cooperate with and reasonably assist
-----------
the other Party in supplying material for marketing and promotional
activities.
2.2 Interactive Site.
----------------
2.2.1 Within each Unrestricted Interactive Site, ICP shall (a) upon
receiving further details from AOL, use commercially reasonable
efforts to participate in the "Netscape Now Affiliate Program"
and (b) include a prominent (i.e., as prominent as that of
[**]) promotional button or banner (at least 90 x 30 pixels or
70 x 70 pixels in size) appearing on the first screen of the
Unrestricted Interactive Site (the "AOL Promo") or, other area
of the ICP Interactive Site as mutually agreed upon by the
Parties (the consent of either Party to such placement not to
be unreasonably withheld), through which users may obtain
promotional information about the AOL Service, the CompuServe
brand service, Netscape or the AOL Instant Messenger service)
and, at AOL's option, download or order the then-current
version of client software for such AOL products or services.
AOL will provide the creative content to be used in the AOL
Promos. ICP shall post (or update, as the case may be) the
creative content supplied by AOL within the spaces for the AOL
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<PAGE>
Promos 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 Promos during the prior month. In the
event that AOL elects to serve the AOL Promos to an
Unrestricted Interactive 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 Unrestricted Interactive Site on
which the AOL Promos will appear.
2.2.2 Within each Unrestricted Interactive Site, ICP shall provide
prominent promotion for the keywords associated with the ICP
Internet Site, and to the extent ICP offers or promotes any
products or services similar to AOL's component products and
services (e.g. Netfind or other search/directory services,
NetMail or free/discount email, Instant Messenger, yellow/white
pages, "My AOL" type personalized information, classifieds,
etc.), ICP shall provide equal or greater promotions for such
AOL-designated products.
2.3 Other Media. In ICP's television, radio, print and "out of home"
-----------
(e.g., buses and billboards, point of purchase and other "place-based"
promotions) advertisements which are directed at a retail consumer
audience (in contrast to advertisements directed at public companies
ICP seeks to attract as its clients or at the institutional investor
community), ICP will include specific references or mentions (orally
where possible) of the availability of the ICP Internet Site through
the America Online(R) brand service on terms and conditions to be
mutually agreed upon by the Parties. In any event, 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. So long as ICP receives the Premier Status
-------------------------
under this Agreement, ICP shall not promote any Interactive Service
more favorably than AOL, and will not promote any Interactive Service
other than AOL as its preferred Interactive Service. In all
promotions in which ICP references AOL, ICP shall use commercially
reasonable efforts to promote AOL as its preferred Interactive
Service.
-10-
<PAGE>
3. REPORTING
---------
3.1 AOL Reporting.
-------------
3.1.1 Usage. AOL will supply ICP with monthly reports specifying for
-----
the prior month 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 other
content partners similar to ICP.
3.1.2 Advertising. As quickly as is reasonable at the end of each
----------
quarter, AOL will supply ICP with reports specifying the cash
value or fair market equivalent value of any AOL Advertisements
sold during the prior quarter. The report format, unless
otherwise mutually agreed, will be similar in substance and
form to the reports provided by AOL to other content partners
similar to ICP. Each subsequent quarterly report shall contain
an adjustment from, prior quarterly reports for actual amounts
collected by AOL from the sale of AOL Advertisements during the
previous quarters.
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 number of and aggregate dollar value
associated with the transactions involving AOL Members (to the extent
such information is available or applicable) 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, and ICP shall provide AOL with
"click-through" data with respect to the promotions specified in
Section 2.
4. ADVERTISING AND MERCHANDISING
-----------------------------
4.1 AOL Advertisements. AOL shall have the right to license or sell
------------------
promotions, advertisements, links, pointers or similar services or
rights ("Advertisements") in or through the ICP Internet Site and ICP
Programming ("AOL Advertisements"). AOL shall use commercially
reasonable efforts to license or sell AOL Advertisements. AOL shall
pay ICP a percentage of the Advertising Revenues generated by AOL or
its agents with respect to AOL Advertisements (the "Advertising
Revenue Share") according to Schedule 4.2 attached hereto.
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<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4.2 Advertising Sales. AOL owns all right, title and interest in and to
-----------------
the advertising and promotional spaces within the AOL Network and the
ICP Internet Site (including, without limitation, advertising and
promotional spaces on any AOL forms or pages on which ICP Programming
resides). The specific advertising inventory within any such pages
shall be as reasonably determined by AOL. Upon the prior written
approval of AOL (not to be unreasonably withheld), ICP shall have the
right to license or sell Advertisements in or through the ICP Internet
Site and ICP Programming; provided, however, that in the event that
-------- -------
both AOL and ICP sell or license an Advertisement for a particular
screen in or through the ICP Internet Site, the AOL Advertisement will
have priority; provided, further, that ICP will not sell any
-------- -------
Advertisements to any Interactive Service without the prior written
approval of AOL. Notwithstanding the foregoing, in the event that
ICP's share of the Advertising Revenues is less than (a) [**] in the
first year of the Term, (b) [**] in the aggregate by the end of the
second year of the Term, or (c) [**] in the aggregate by the end of
the third year of the Term (each, an "Advertising Revenue Share
Threshold"), ICP shall have the right, but not the obligation, to sell
advertising on the ICP Internet Site during the year immediately
succeeding the year in which ICP's share of the Advertising Revenues
does not exceed the Advertising Revenue Share Threshold; provided,
--------
however, that after the exercise of such right by ICP, AOL shall not
-------
have the obligation to sell any further Advertisements on the ICP
Internet Site; provided, further, that after such election by ICP,
-------- -------
ICP shall be required to comply with and honor the terms of any then
existing contractual commitments between AOL and any third-party
advertiser with respect to the ICP Internet Site. In the event that
in any year of the Term, ICP's share of the Advertising Revenues
exceeds the Advertising Revenue Share Threshold for such year, AOL
shall have the right, but not the obligation, to sell advertising on
the principal ICP Interactive Sites (currently situated at
www.ccbn.com) pursuant to a revenue sharing arrangement to be mutually
------------
agreed upon by the Parties. If either ICP or AOL exercises the
aforementioned rights, the Parties shall coordinate their advertising
sales efforts to optimize the results of such efforts (e.g., such that
both Parties' sales forces are not attempting to simultaneously sell
the same inventory, etc.).
4.3 Unacceptable Advertisements. In the event that either Party notifies
---------------------------
the other that it reasonably believes that an Advertisement running on
the ICP Internet Site or ICP Programming is against its reasonable
business interests, such Advertisement will be [**].
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<PAGE>
4.4 Interactive Commerce. Any merchandising permitted hereunder through
--------------------
the ICP Internet Site and/or ICP Programming shall be subject to (i)
AOL's standard terms and conditions applicable to its interactive
marketing partners and (ii) prior approval by AOL of all products,
goods and services to be offered for sale through the ICP Internet
Site or the ICP Programming. ICP will take all reasonable steps
necessary to conform its promotion and sale of Products through the
ICP Internet Site and ICP Programming to the then-existing
technologies identified by AOL which are optimized for the AOL Service
including, without limitation, any "quick checkout" tool which AOL may
implement to facilitate purchase of Products by AOL Members through
the ICP Internet Site. 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. Prior to entering into negotiations with any
third party regarding merchandising or commerce arrangements through
the ICP Internet Site and/or ICP Programming, ICP shall give AOL
written notice of such desire and, upon request by AOL, negotiate in
good faith with AOL or its commerce or marketing partner in the
applicable product/service category regarding a merchandising or
commerce arrangement.
4.5 Payment Schedule. Except as otherwise specified in Section 1.5, each
----------------
Party agrees to pay the other Party all amounts received and owed to
such other Party as described in this Section 4, subject to any
adjustments made as described in Section 3.1.2, on a quarterly basis
within sixty (60) days of the end of the quarter in which such amounts
were collected by such Party. The first quarter for which payment is
to be made shall (i) begin on the first day of the month following the
month of execution of this Agreement and (ii) include the portion of
the month of execution following the Effective Date (unless this
Agreement was executed on the first day of a month, in which case the
quarter shall be deemed to begin on the first day of such month).
5. CUSTOMIZED ICP PROGRAMMING AND ICP INTERNET SITE
------------------------------------------------
5.1 Performance. All ICP Programming and the ICP Internet Site shall
-----------
comply in all material respects with AOL specifications and guidelines
(including, without limitation, any HTML publishing guidelines) and
the Operating Standards set forth on Exhibit E attached hereto.
5.2 Customization.
-------------
(a) ICP shall customize and co-brand the ICP Internet Site for
distribution over certain AOL Properties as more particularly
described on Exhibit A-1. ICP shall make any reasonable changes
to the customization and/or co-branding requirements of any AOL
Property that may occur during the Term.
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<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission Asterisks denote omissions.
(b) Unless otherwise agreed upon by the Parties, 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 any AOL Property, (ii) in a category in
which AOL or the applicable AOL Property has an exclusive or
other premier relationship with any third party, or (iii)
otherwise in violation of the applicable AOL Property's standard
advertising policies, which are subject to change from time to
time at AOL's reasonable discretion. AOL represents and warrants
that it has delivered to ICP copies of the current versions -of
the standard advertising policies for each of the AOL Properties
which constitute the subject of this Agreement and has notified
ICP of the categories in which AOL maintains (as of the Effective
Date) exclusive relationships with any third party commerce
partner. AOL shall notify ICP of changes to such list of
categories from time to time, and ICP shall not be deemed to have
breached the terms of this Section 5.2(b) with respect to
advertisements, promotions or links in categories with respect to
which AOL has not notified ICP of an exclusive relationship with
a third party, so long as (i) such exclusive relationship was in
full force and effect prior to the inclusion of such promotions,
advertisements or links and (ii) CCBN removes any such
promotions, links or advertisements within five (5) days
following notification by AOL that an exclusive relationship with
a third party exists. AOL shall use commercially reasonable
efforts to ensure that ICP will not, by reason of this Section
5.2(b), be [**] through the ICP Internet Site and ICP
Programming, provided that the Parties agree that AOL does not
guarantee that ICP will [**] through the ICP Internet Site and/or
ICP Programming.
(c) ICP shall provide continuous navigational ability for AOL Members
to return to an agreed-upon point on the applicable AOL Property
(for which AOL shall supply the proper address) from ICP Internet
Site or ICP Programming (e.g., the point on the applicable AOL
Property from which such site is linked), which, at AOL's option,
may be satisfied through the use of a hybrid browser format. ICP
shall ensure that navigation back to the AOL Network from the ICP
Internet 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 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. Rather, such AOL traffic shall be pointed
directly back to the AOL Network as designated by AOL.
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<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(d) ICP shall use AOL's tools and technology for all community-
related utilities and functionality (including, without
limitation, chat, message boards, and web page community services
such as AOL Hometown) within ICP Programming and the ICP Internet
Site and any registration or similar processes permitted
hereunder in the event that (1) ICP desires to incorporate any
such types of tools and functionality into the ICP Internet Site
and/or the ICP Programming and (2) the relevant AOL tools and
technology are [**]with those [**]. The Parties hereby
acknowledge and agree that in no event shall the ICP Internet
Site or ICP Programming contain the tools and technology of any
AOL competitor without the express written consent of AOL.
5.3 Links on ICP Internet Site. The Parties will work together on
--------------------------
mutually acceptable links (including links back to AOL) within the ICP
Internet Site in order to create a robust and engaging AOL member
experience. ICP shall take reasonable efforts to ensure that AOL
traffic is generally either kept within the ICP Internet Site or ICP
Programming or channeled back into the AOL Network. To the extent
that AOL notifies ICP in writing that, in AOL's reasonable judgment,
links from the ICP Internet Site or ICP Programming cause an excessive
amount of AOL traffic to be diverted outside of such site and the AOL
Network in a manner that has a detrimental effect on the traffic flow
of the AOL audience, then ICP shall immediately reduce (but in no
event later than five (5) days following notice by AOL) the number of
links out of such site(s). In the event that ICP cannot or does not
so limit diverted traffic from such site, AOL reserves the right to
terminate such links from the AOL Network to such site; provided that
--------
AOL will not require ICP to remove any such links to areas outside of
the ICP Internet Site that are necessary for ICP to comply with its
ICP Programming obligations under this Agreement.
5.4 Review. ICP shall allow appropriate AOL personnel to have access to
------
all ICP Programming and the ICP Internet Site for the purpose of
reviewing such sites to determine compliance with the provisions of
this Section 5.
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<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
6. TERM, TERMINATION, SITE AND CONTENT PREPARATION, 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
forty (40) months from the Effective Date. In the event that ICP's
share of the [**] under this Agreement [**] during the Term, AOL shall
have the right to extend this Agreement for a term of (at its option)
one (1) or two (2) additional years terms (the "Extension Term") by
providing ICP with written notice of such election no later than [**]
prior to the expiration of the Initial Term (the "Extension
Notification Period"). Upon receiving such notification, [**] shall
have [**] to elect whether (a) such Extension Term shall be on the
same terms and conditions contained herein, in which case ICP shall
make quarterly payments to AOL of [**] on the first day of each
calendar quarter of the Extension Term, commencing on the first day of
the Extension Term or (b) such Extension Term shall be without the
Premier Status, without any further [**] (other than any [**]
expressly required by the terms of this Agreement), and without having
any further obligations under Section 1.7 or Section 2 of this
Agreement (collectively, the [**] Extension Decision"). Following
notification by [**] of the [**] Extension Decision, if AOL has
elected to extend the Agreement for a two (2) year Extension Term, it
shall have the option to reduce the length of such Extension Term to
one year by written notification of such decision to CCBN within [**]
of the [**] Extension Decision. During any Extension Term, AOL shall
be entitled to receive [**] of the Advertising Revenues generated
during such Extension Term. Notwithstanding the foregoing, 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, trademarks and service marks in connection therewith.
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 in the event of the existence of a technical
-------- -------
problem of either Party beyond the reasonable control of such party (a
"Force Majeure Event"), the breaching Party shall have sixty (60) days
to cure such Force Majuere Event before the non-breaching Party shall
have the right to terminate this Agreement; provide, however, that
the breaching party shall use commercially reasonable efforts to cure
such Force Majeure Event as promptly as possible; provided, further,
-------- -------
that in the event of an ICP Force Majeure Event, AOL shall have the
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
right to block access to the ICP Internet Site and to provide the AOL
Members with access to (and promote, market or distribute) the IR
Information of any third party (including, without limitation, any ICP
Competitor) on or through the Premier Areas.
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 Site and Content Preparation.
----------------------------
6.4.1 Certain Definitions
-------------------
(a) As used herein, "Site and Content Preparation" shall mean
that ICP shall have completed all necessary production
work for the ICP Internet Site, all ICP Programming and
any other related areas or screens (including programming
all Content thereon) in accordance with Exhibit A-2;
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, all AOL site testing set forth on Exhibit E)
to prepare the ICP Internet Site, all ICP Programming and
any other related areas or screens to launch on the AOL
Network as contemplated in Exhibit A-2.
(b) As used herein, "[**] Preparation" shall mean
that ICP shall have completed all necessary production
work for the ICP Internet Site, all ICP Programming and
any other related areas or screens (including programming
all Content thereon) in accordance with subpart II-B of
Exhibit A-2.
(c) As used herein, "AOL Failure" means, with respect to
either the Site and Content Preparation Date or the [**]
Deadline Date, AOL's failure: (i) to make [**] available
by such date, (ii) to develop a data retrieval/integration
mechanism appropriate and sufficient to allow ICP to
achieve Site and Content Preparation or [**] Preparation,
as applicable, (iii) to provide ICP the necessary
technical specifications to allow it to achieve Site and
Content Preparation or [**] Preparation, as applicable,
(iv) to develop with ICP the "mutually agreed to plans"
and "[**]
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<PAGE>
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
specifications documents" referenced in Exhibit A-2, or
(v) to perform its obligations under this agreement.
6.4.2 ICP shall achieve Site and Content Preparation within ninety
(90) days after the Effective Date (the "Site Deadline Date")
and shall achieve [**] Preparation no later than
[**] (the "[**] Deadline Date");
6.4.3 If ICP has not achieved [**] Preparation by the
[**] Deadline (either by providing the necessary
content itself or procuring it from alternative sources),
unless such failure is solely due to an AOL Failure, AOL may
procure the content necessary to allow it to operate its
Personal Finance [**] directly from third party sources. If
such failure is solely due to an AOL Failure, the [**]
Deadline shall be extended by the number of days solely
attributed to such AOL Failure.
6.4.4 In the event ICP has not achieved Site and Content Preparation
within [**] after the Effective Date, then 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 [**] period
that ICP achieves Site and Content Preparation divided by 1183.
In the event ICP has not achieved Site and Content Preparation
within [**]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 an AOL
Failure and ICP notifies AOL in writing of such failure and the
resulting delay, then the [**] and [**] periods referenced
in this Section shall each be extended by the amount of time of
ICP's delay solely attributable to such failure by AOL, and AOL
shall [**] for such delay unless and until such applicable
period, as so extended, expires without ICP having achieved
Site and Content Preparation.
6.5 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. The
failure to obtain the prior written approval of the other Party shall
be deemed a material breach of this Agreement, whereby the non-
breaching Party may terminate this Agreement immediately following
written notice to the other Party, and the cure provision of Section
6.2 of this Agreement shall not apply. 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
-18-
<PAGE>
and in such event, the disclosing Party will provide at least five (5)
business days prior written notice of such disclosure.
7. TERMS AND-CONDITIONS. The terms and conditions got forth on the Exhibits
--------------------
attached hereto are hereby made a part of this Agreement.
IN WITHIN WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. CCBN.COM, INC.
By: /s/ Eric Keller By: /s/ Jeffrey P. Parker
------------------------------ ---------------------------------
Print Name: Eric Keller Print Name: Jeffrey P. Parker
---------------------- -------------------------
Title: VP - Business Affairs Title: Chairman & CEO
--------------------------- ------------------------------
Date: 12/23/99 Date: 12/23/99
---------------------------- -------------------------------
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<PAGE>
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT A-1
-----------
AOL Promotional Obligations
---------------------------
I. Links to the ICP Internet Site
------------------------------
AOL shall provide ICP with integrated placements and promotional links to
the ICP Internet Site within the Personal Finance channel (or any specific
successor thereof) offered on the AOL Service, as follows
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Screen Promotion Type
------ --------------
- -------------------------------------------------------------------------------------------------------
<S> <C>
[**] Permanent Link
- -------------------------------------------------------------------------------------------------------
[**] Contextual link to feed-fed recorded conference calls in newsfeed
area
- -------------------------------------------------------------------------------------------------------
[**] Permanent Link
- -------------------------------------------------------------------------------------------------------
[**] Via ticker-based feed, contextual link to conference call replays.
- -------------------------------------------------------------------------------------------------------
AOL Investment Research Main (or Permanent Link to IR Hub
successor area)
- -------------------------------------------------------------------------------------------------------
AOL Keywords Permanent
- -------------------------------------------------------------------------------------------------------
[**] Integration of event feed information**
- -------------------------------------------------------------------------------------------------------
[**] Permanent link (after SEC Tab)
- -------------------------------------------------------------------------------------------------------
[**] Permanent link - newsfeed/text link under related news
- -------------------------------------------------------------------------------------------------------
[**] Permanent link - Company Information
- -------------------------------------------------------------------------------------------------------
[**] Permanent link - Header field
- -------------------------------------------------------------------------------------------------------
[**] Permanent link - Header field
- -------------------------------------------------------------------------------------------------------
[**] Permanent link - Header field
- -------------------------------------------------------------------------------------------------------
</TABLE>
- -------------------
/1/ Contingent upon AOL's completion of a redesigned message board
structure, which AOL shall use commercially reasonable efforts to complete by
June 30, 2000.
** AOL will use CCBN'S IR Information if CCBN'S content is technically
compatible with AOL's systems; in any event, all links to IR information will go
to CCBN sites. If CCBN's content is not compatible in AOL's reasonable
discretion (based upon factors including, but not limited to, content quality,
depth, accuracy and technical compatibility), AOL may use a third party for such
IR information.
-20-
<PAGE>
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
<TABLE>
- -------------------------------------------------------------------------------------------------------
<S> <C>
[**] Permanent link - Header field
- -------------------------------------------------------------------------------------------------------
[**] Permanent link - Deep link search
- -------------------------------------------------------------------------------------------------------
[**] Permanent link - Deep link search
- -------------------------------------------------------------------------------------------------------
</TABLE>
All pages and content provided by ICP must conform to established design
guidelines and technical specifications for the Investment Research area.
All placements will be integrated according to a mutually agreed to roll-out
schedule.
AOL may use third party providers of IR Information in the event that CCBN is
unable to meet the deadlines set forth herein and/or the relevant product
specifications.
II. Links to ICP Programming
------------------------
On its Investment [**] and Investment Research Site (and on each future
site which is a specific successor to one of such sites), AOL shall provide a
contextual, non-branded link to the ICP Site as is farther described as the CCBN
"IR Hub."
On AOL's Investment Snapshots and in its Portfolio Direct (and on each
future site which is a specific successor to one of such sites), AOL will
provide an indexed link to each company-specific "home page" within the CCBN IR
Hub.
From time to time, in its discretion, when companies likely to be of
interest to a large audience are participating in upcoming conference calls
either available or coordinated by ICP, AOL may promote such calls as "Live
Events" on both the Personal Finance Main Screen and in the AOL Live area. Such
guests will be promoted on AOL Live with a brief write-up and with a picture (if
available) and will be branded with "brought to you by StreetEvents" or a
similar, mutually agreed-upon branded promotion of ICP. While not required, ICP
would hope that AOL shall promote ICP-sponsored events pursuant to this
paragraph on no fewer than [**] occasions in each calendar month during the
Term of this Agreement.
-21-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT A-2
ICP Programming and Content Obligations
---------------------------------------
I. General Content
---------------
ICP will provide AOL with access to a number of products and services
including links to company investor relations Sites, access to live and archived
investor conference calls, and access to company event information. ICP's
overall objective is to provide AOL Members access to a critical mass of
company-specific, investor-oriented information, as well as to lay the
groundwork for an important forum for companies to communicate directly with the
AOL community. This will be achieved in both an aggregated and disaggregated
(e.g., ticker-based indexed links to events and information) manner.
ICP will make available over the AOL Service, and over other AOL Properties
(as more fully described in Section III below) the ICP Internet Site and the ICP
Programming described in Sections II and III below.
II. ICP Internet Site and ICP Programming
-------------------------------------
ICP will create a customized site to be carried on the AOL Service, under a
domain name co-branded with AOL (e.g.,ccbn.aol.com), tentatively to be called
the "IR Hub". The CCBN-Street Events "IR Hub" site will be the Service's
primary offering for all things related to the investor relations function of
publicly traded companies. The IR Hub developed and maintained by CCBN will
initially have the following as its principal components: a wide variety of live
and recorded company conference calls, event information for such corporate news
as earnings release dates and times, access to company IR web sites, and other
important IR related material -- and may in the future have additional
components appropriate to ICP's current or future business.
The specific design of the IR Hub will be mutually agreed to by the
Parties, provided that the IR Hub shall include the Content described in this
Exhibit A-2 and shall conform to the applicable AOL Property's then-standard co-
branding guidelines for Investment Research, Personal Finance and [**]
partners.
ICP will create the assets described below:
A. Site Assets
- ----------------
1) Co-branded IR Hub
The central, unified offering of all IR-related material on the Service. This
Hub will contain (as an example) navigation which will allow members to find IR
information on companies of interest, lists of important upcoming events
(calls), lists of important recent events (recorded calls), and other supporting
information.
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<PAGE>
Confidential materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omission.
2) IR Pages
These will be ticker-based pages that will be linked to from various company
specific sites and pages (most importantly the AOL Quote and other company
research functions). ICP will endeavor to provide the following, at a minimum:
For Companies that are a part of the following indexes or lists: S&P 500,
AOL Top 100 most popular portfolio symbols, Nasdaq 100, and TheStreet.com
Internet Index (the DOT).
. [**] access to all [**] must be
. [**] access to [**] information for [**]
. [**] to the Company's [**]
. [**] info for [**]
. The established [**] Company [**] etc.)
. Button/Link so that a user can [**] to the
[**]
For Companies that are outside the indexes and lists above:
. [**] (both [**])from [**] (if available)
. [**] Company's [**] (if available)
. Basic contact info for IR Department
. The established [**] Company
company [**] etc.)
. [**] so that a user can [**]
(when possible)
ICP reserves the right to add or delete specific information to or from
each Company Site during the term of the Agreement, as long as it is in keeping
with this basic array of information.
3) A system for contextual newsfeed publication.
This system will permit AOL to publish recently recorded conference calls and
other IR news-related events within its contextual newsfeed displays. This
system should permit AOL to update its displays in [**]
as possible - and at a minimum will be updated once a day.
-23-
<PAGE>
Confidential Materials Omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omission.
B. [**] Assets
----
ICP shall create the following assets by the [**] Deadline Date,
subject to the limitations as described in Section 6.4:
1) A Co-branded, centralized Personal Finance [**]
This will be a co-branded, AOL/StreetEvents centralized Personal Finance
[**]that includes access to [**] information for companies including [**]
subjects, [**] as well as non-company specific [**].
The [**] will include the following features:
. [**], which includes [**] for the [**] for each of the [**]
based on a [**]. Companies that should be [**]
the companies [**]
. [**]for each of the [**] that includes [**] for that
[**], with relevant information based on [**]
. [**] - Ability to [**] for [**] by [**]
. [**] - ability to [**]for [**] by [**] (both
[**]).
. From [**] the [**] pages, provide [**] to respective [**]
that [**]. For example, a [**] will have a [**] to a page that
[**] and provides audio access, if available. [**] will include
[**]. Examples include:
. [**] will [**] to [**]
. [**] will go to [**]
The specific design of the [**] will be as mutually agreed upon by AOL and ICP,
but in any event, will conform to AOL's standard layout, branding and look and
feel requirements as they apply to similarly situated premier providers of
content for the Investment Research are of AOL
-24-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Personal Finance and as they are defined in a detailed [**] specifications
document to be provided to ICP by AOL.
2) A dynamic system which will feed IR information to AOL's various
[**] operations
This system will allow for the creation of a [**] of upcoming [**] and other
important IR events. This system should allow for, at a minimum, daily updates.
Linking information should be included. CCBN shall provide a feed to AOL that
can be integrated into an individual's [**] page. The feed will include [**] and
[**]. [**] shall mean the [**] underwritten public offering of common stock of a
corporation registered pursuant to the Securities Act of 1933, as amended,
resulting in aggregate cash proceeds (prior to underwriters' commissions and
expenses) of more than [**]
3) Feeds to other areas on the AOL Service.
ICP will provide, in an approved AOL format, information suitable for
integration into AOL's [**] product (e.g., announcements of upcoming
[**] for different companies), [**] (e.g., [**] announcements) and
[**] (e.g., [**] schedules).
C. Company Site and Keywords.
--------------------------
ICP will provide and maintain a Company Site for each of the companies on the
indexed lists, as well as selected others that maintain a commercial business
relationship with CCBN, and links to such Site within the ICP Internet Site.
AOL and ICP will work together to create standardized keywords that AOL and
CompuServe members can easily remember (e.g. Intel IR, Amazon IR, General
Motors IR). Keywords for Companies will link directly to the Company Site
within the ICP Internet Site for such Company.
D. Investor Education
------------------
ICP and AOL agree that educating investors as to the purpose of conference
calls, the quarterly earnings cycles, analyst estimates and their role in the
process, etc. will be critical toward building value and regular usage to the
ICP Internet site. Both ICP and AOL agree to sponsor education-oriented
material in the IR Hub, and on the AOL Service generally, to educate investors.
Anything else in this Agreement notwithstanding, ICP will not be obligated
to make any information available through the IR Hub which it does not
reasonably believe it has the legal right to make available. All information
which is made available through the IR Hub is subject to the approval of the
owner of the copyright in such information, which may be the relevant Available
Company or a third party data provider. (Current third parties which feed data
to ICP, and which may, therefore,
-25-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
hold the copyright in relevant information include, [**] and [**]
III. Other AOL Properties
--------------------
A. Netcenter
ICP shall create a version of the ICP Internet Site customized for
distribution through Netcenter (the "Netcenter ICP Site"). ICP will:
(a) develop the Netcenter ICP Site as a "cul de sac" site containing no links
outside of the Netcenter ICP Site other than to Netcenter, other AOL or
third party Content determined by AOL, or advertisements permitted under
this Agreement,
(b) display on each page of the Netcenter ICP Site, headers and footers of size
and type determined by AOL and which contain branding of both the Netcenter
and ICP, links to Netcenter, a Netcenter search box and two (2) promotional
spaces to be programmed by AOL,
(c) program each page of the Netcenter ICP Site with a co-branded domain name
(e.g., ccbn.netcenter.com),
(d) cause the Netcenter ICP Site to match the look and feel of Netcenter, and
(e) co-brand the Netcenter ICP Site (and the versions of StreetEvents-on-AOL
and the IR Hub contained thereon) according to the co-branding requirements
relevant to Netcenter.
(f) upon receiving further details from AOL, use commercially reasonable
efforts to participate in the "Netscape Now Affiliate Program."
The Netcenter ICP Site shall contain Content of substantially the same
quality, scope, functionality, terms and conditions as the Content on the ICP
Internet Site as described on this Exhibit A-2, and ICP's obligations with
respect to the Netcenter ICP Site will be the same as its obligations with
respect to the ICP Internet Site. In general, all terms and conditions of this
Agreement applicable to the ICP Internet Site shall apply to the Netcenter ICP
Site except as expressly otherwise stated.
B. CompuServe
ICP shall create a version of the ICP Internet Site customized for
distribution through CompuServe (the "CompuServe ICP Site"). ICP will:
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<PAGE>
(a) develop the CompuServe ICP Site as a "cul de sac" site containing no links
outside of the CompuServe ICP Site other than to CompuServe, other AOL or
third party Content determined by AOL, or advertisements permitted under
this Agreement,
(b) display on each page of the CompuServe ICP Site, headers and footers of
size and type determined by AOL and which contain branding of both the
CompuServe and ICP, links to CompuServe, a CompuServe search box and two
(2) promotional spaces to be programmed by AOL,
(c) program each page of the CompuServe ICP Site with a co-branded domain name
(e.g., ccbn.CompuServe.com),
(d) cause the CompuServe ICP Site to match the look and feel of CompuServe, and
(e) co-brand the CompuServe ICP Site (and the versions of StreetEvents-on-AOL
and the IR Hub contained thereon) according to the co-branding requirements
relevant to CompuServe.
The CompuServe ICP Site shall contain Content of substantially the same quality,
scope, functionality, terms and conditions as the Content on the ICP Internet
Site as described on this Exhibit A-2, and ICP's obligations with respect to the
CompuServe ICP Site will be the same as its obligations with respect to the ICP
Internet Site. In general, all terms and conditions of this Agreement
applicable to the ICP Internet Site shall apply to the CompuServe ICP Site
except as expressly otherwise stated.
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<PAGE>
EXHIBIT B - DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
- -----------
Advertising Revenues. Aggregate amounts collected by AOL or AOL's agents, as
- --------------------
the case may be, arising from the license or sale of AOL Advertisements, less
fifteen percent (15%) sales costs.
Affiliate. Any agent, distributor or franchise of AOL, or an entity in which
- ---------
AOL holds at least a nineteen percent (19%) equity interest.
AOL Service. The narrow-band U.S. version of the America Online(R) brand
- -----------
service, specifically excluding (a) AOL.com and any other AOL Interactive Site,
(b) the international versions of an America Online service (e.g., AOL Japan),
(c) the CompuServe brand service and any other CompuServe products or services,
(d) Netscape Netcenter(TM) and any other Netscape(R) products or services, (e)
"ICP(TM)," "AOL Netfind(TM)," "AOL Instant Messenger(TM)," "Digital City(TM),"
"NetMail(TM)", "Real Fans", "Love@AOL", "Entertainment Asylum," "AOL Hometown"
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 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 Look and Feel. The distinctive and particular 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 Members. Authorized users (including any sub-accounts under an authorized
- -----------
master account) of the AOL Network.
AOL Network. (i) The AOL Service and (ii) 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 ICP Internet
Site, ICP Programming and/or Licensed Content (which may include, without
limitation, AOL-related Internet sites, "offline" information browsing products,
international versions of the AOL brand service, or CompuServe).
AOL Properties. 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, the CompuServe
Service and the Netscape Web Site.
AOL Purchaser. Any person or entity who enters the ICP Internet Site or the ICP
- -------------
Programming from the AOL Network including, without limitation, from any third
party area therein (to the extent entry from such third party area is traceable
through both Parties' commercially reasonable efforts), and generates
Transaction Revenues (regardless of whether such person or entity provides an
e-mail address during registration or entrance to the ICP Internet Site which
includes a domain other than an "AOL.com" domain); provided that any person or
entity who has previously satisfied the definition of AOL Purchaser will remain
an AOL Purchaser, and any subsequent purchases by such person or entity (e.g.,
as a result of e-mail solicitations or any off-line means for receiving orders
requiring purchasers to reference a specific promotional identifier or tracking
code) will also give rise to Transaction Revenues hereunder (and will not be
conditioned on the person or entity's satisfaction of the requirements set forth
before the above proviso).]
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 1933,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more titan 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, narrow-band U.S. version of the CompuServe
- ------------------
brand service, specifically excluding (a) any international versions of such
service, (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 "subservice," (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, classified or other search, directory or
review services or Content and (f) any co-branded or private label branded
version of the U.S. version of the CompuServe brand service, (g) any
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<PAGE>
version of the U.S. version of the CompuServe brand service which offers
Content, distribution, services and/or functionality materially different from
the Content distribution, services and/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 and (h) any property, feature,
product or service which CompuServe or its affiliates may acquire subsequent to
the Effective Date.
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, links, pointers, technology and software.
ICP Competitor. A third party that provides company investor relations or event
- --------------
information to the investment community, as well as those parties listed on
Schedule 1.8 hereof. The Parties may, from time to time, expand the list of ICP
Competitors on Schedule 1.8 by mutual agreement
ICP Interactive Site. Any interactive site or area (other than the ICP Internet
- --------------------
Site), including any mirrored site or area, which is managed, maintained, or
owned by (or which is under the substantial control of) ICP or its agents ,
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 customized, co-branded Internet site and Content, to be
- -----------------
located at URL:http//www.ccbn.aol.com, which is managed, maintained or owned by,
ICP or its agents or to which ICP licenses information, content or other
materials to AOL and/or AOL Members, as set forth in 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 form, describes or promotes ICP or
ICP's
Content
ICP Technical Problem. "ICP Technical Problem" shall have the meaning set forth
- ---------------------
in Section 3 of Exhibit E hereto.
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 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.
Institutional Investor Interactive Site. Any password-protected portion of any
- ---------------------------------------
ICP Interactive Site targeting brokers, broker-dealers, brokerages and/or
institutional investors that is not accessible to the general consumer (i.e.,
non-high net-worth individual investor) market. This definition is subject to
alteration upon mutual agreement of the Parties.
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 numerous interactive commerce categories (e.g., an online
mail or other leading 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.
IR Information. Corporate event calendar information, audio, video or
- --------------
accompanying PowerPoint presentations of company-sponsored investor-related
events, and aggregated collections of links to: corporate investor relations web
sites, stock reports, corporate press release information, corporate news
analysis and commentary and corporate news stories. The Parties may, from time
to time, mutually agree to expand the definition of "IR Information."
Keyword(TM) Search Terms. The Keyword-online search terms made available on the
- ------------------------
AOL Service for use by AOL Members, combining AOL's Keyword(TM) online search
modifier with a term or phrase specifically related to ICP (and determined in
accordance with the terms of this Agreement) (e.g., "CCBN", "IR IBM" or "IR
AOL").
Linked Interactive Site. Any site or area outside of the AOL Network which is
- -----------------------
linked to ICP Programming (through a
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<PAGE>
"pointer" or similar link) subject to approval by AOL in accordance with the
terms and conditions of this Agreement
Linked ICP Interactive Site. Any ICP Interactive Site which is also a Linked
- ---------------------------
Interactive Site.
Licensed Content. All Content provided by ICP or its agents through the ICP
- ----------------
Internet Site and/or the AOL Network in connection with the subject matter of
this Agreement, including without limitation all ICP Programming, but excluding
Content that is provided to ICP by non-affiliated third parties, over which ICP
maintains no editorial control (e.g., the content within Company conference
calls),
Netscape Web-Site. The collection of local language HTML documents targeted at
- -----------------
end users in the territory programmed and controlled exclusively by Netscape
Communications Corporation and freely accessible to the public via the Internet
at the URL http://home.netscape.com (or any successor address designated from
------------------------
time to time by Netscape Communications Corporation), but specifically excluding
(a) the AOL Service and the CompuServe Service, (b) AOL.com and CompuServe.com,
(c) any international versions of such site, (d) "ICP," "AOL Netfind(TM)," "AOL
Instant Messenger," "NetMail(TM)," "AOL Hometown," "My News," "Digital
City(TM)," 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" brand,
by virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-banded versions and any version
distributed through any broadband distribution platform or through any platform
or device other titan a desktop personal computer (e.g. Custom Netcenter built
specifically for third parties).
Premier Areas. The Personal Finance Channel of the AOL Service. This definition
- -------------
is subject to alteration upon mutual agreement of the Parties.
Prime Rate. The prime commercial lending rate as published in the Wall Street
- ----------
Journal, such rate to be adjusted automatically without notice on the effective
date of any change in such rate.
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 (including any
Linked Interactive Site), (ii) any other electronic means directed at AOL
Members (e.g., c-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.
Transaction Revenues. Aggregate amounts paid by AOL Purchasers in connection
- --------------------
with the sale, licensing, distribution or provision of any Products, including,
in each case, handling, shipping, service charges, and excluding, in each case,
(a) amounts collected for sales or use taxes or duties and (b) credits and
charge backs for returned or canceled goods or services, but not excluding cost
of goods sold or any Similar cost.
Unrestricted Interactive Site. Any ICP Interactive Site, except for (a) any ICP
- -----------------------------
Interactive Site over which ICP does not exercise substantial operational
control, (b) any ICP Interactive Site on which a third party having ancillary
control over the content of such site reasonably objects to a promotion of AOL
or (c) any Institutional Investor Interactive Site.
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EXHIBIT C - STANDARD LEGAL TERMS AND CONDITIONS
-----------------------------------------------
I. AOL NETWORK
Content. ICP represents and warrants that all Content provided by ICP to AOL or
- -------
any AOL Members within or through the ICP Internet Site (but excluding third-
party Content merely linked to by ICP through the ICP Internet Site), all 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, (ii) does not and will
not infringe on or violate any copyright, trademark. U.S. patent, lights 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"). 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, battered, 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 Service, AOL Hometown, AOL.com or any other AOL Property, including without
limitation, by adding or deleting channels, subchannels and/or screens. If AOL
eliminates or modifies an area on an AOL Property in a manner that substantially
modifies the nature of the distribution required under this Agreement in a
material adverse fashion, AOL will work with ICP in good faith to provide ICP,
as its sole remedy, with comparable distribution reasonably satisfactory to ICP.
Contests. ICP shall use all reasonable efforts to 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.
Disclaimer. Upon AOL's request, ICP agrees to include within the ICP Internet
- ----------
Site and/or 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 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 any of its 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
AOL makes no 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.
Expert/Specialist Content. If any of the Licensed Content professes to provide
- -------------------------
expert, professional or other specialty advice or Content (such as, without
limitation, medical or psychological, religious, financial, etc.), ICP shall use
commercially reasonable efforts to ensure that all such Licensed Content is
prepared or reviewed by licensed, insured and qualified
practitioners/professionals in such field with expertise on the particular topic
and such Licensed Content complies with applicable standards of the applicable
profession and all applicable laws and regulations. Upon request by AOL from
time to time, ICP shall provide AOL with evidence reasonably satisfactory to AOL
of proper licensure and compliance with the foregoing sentence.
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 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. ICP shall promptly notify AOL of any material adverse change in such
policy or policies.
Rewards Program. ICP shall not offer, provide, implement or otherwise make
- ---------------
available on the ICP Internet Site or ICP Programming (without AOL's prior
written consent) any promotional programs or plans that am intended to provide
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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 (i) is provided
exclusively through AOL's "AOL Rewards" program accessible on the AOL Service at
Keyword. "AOL Rewards" or (ii) is not competitive with the AOL Rewards Program,
and (unless otherwise agreed upon by AOL) is provided in conjunction with the
AOL Rewards program. Notwithstanding the foregoing, ICP shall use commercially
reasonable efforts to incorporate the AOL Rewards program into the ICP Internet
Site.
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, or any other
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.
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.
Operation. 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.
Classified. ICP shall not implement or promote any classifieds listing features
- ----------
through ICP Programming 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.
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.
Duty to Inform. ICP shall promptly inform AOL of any information related to the
- --------------
ICP Internet Site, ICP Programming or the Licensed Content which is reasonably
likely to 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 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. Neither party shall make, publish, or otherwise
- ------------------------------
communicate through the AOL Network any deleterious remarks concerning the other
party AOL or its Affiliates, directors, officers, employees, or agents
(including, without limitation, its business projects, business capabilities,
performance of duties and services, or financial position) which remarks am
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 Platt, 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 within thirty (30) days after the receipt of the
appropriate invoice. 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 Anchor
Tenant Button and the ICP Internet Site ("Routine Services"), ICP will pay the
then-standard fees charged by AOL for such Routine Services.
Production Tool. AOL shall determine in its sole discretion, which of its
- ---------------
proprietary publishing tools (each a "Tool") shall be made available to ICP in
order to develop and implement the Licensed Content during the Term. ICP shall
be granted a nonexclusive license to use any such Tool, which license shall
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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. ICP
shall be responsible to pay the fees associated with its chosen training and
support package. In addition, ICP will pay travel and lodging costs associated
with is 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 subject to availability and to AOL's approval. AOL reserves the right
to revoke at any time, for good cause (in AOL's sole discretion), ICP's use of
any Keyword Search Terms that do not incorporate trademarks of ICP (e.g., "AOL
Keyword: IR IBM"). ICP acknowledges that its utilization of a Keyword
Search Terms 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 trademark independent of the Keyword Search
Tenn. 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" 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
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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.
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, and who are under obligations of confidentiality appropriate to
protect the interests of the Parties hereunder (including, without limitation,
the obligations set forth in 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. Also notwithstanding the foregoing, either Party may disclose
Confidential Information to its current or bona fide prospective investors,
investment bankers, lenders, accountants and attorneys, in each case only where
such persons or entities are under obligations of confidentiality appropriate to
protect the interests of the Parties hereunder (including, without limitation,
the obligations set forth in this section).
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 (a) include a prominent and easy means to
"opt-out" of receiving any future commercial e-mail communications from ICP and
(b) 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 over the AOL Network shall (i)
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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 THE ICP INTERNET SITE, ANY ICP PROGRAMMING OR ANY LICENSED CONTENT 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 BY EITHER PARTY 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 ICP INTERNET SITE, THE ICP PROGRAMMING, ANY LICENSED CONTENT OR ANY AOL
PUBLISHING TOOLS, 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 THE AOL
NETWORK, THE ICP PROGRAMMING 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 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.
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 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
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Party and its counsel in the defense against such Action and the Indemnifing
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 proprietary rights, including but
not limited to intellectual property and confidentiality, 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 considered Confidential Information under
this Agreement.
(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
-36-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
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 [**]
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement AOL shall have the right, 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, subject to strict confidentiality
restrictions, to conduct a reasonable and necessary copying and inspection of
portions of the Records of ICP that are directly related to amounts payable to
the Party requesting the audit pursuant to this Agreement. 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 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
delivered by electronic mail on the AOL Network (to screenname "AOLNotice" in
the case of AOL) or by confirmed facsimile; (ii) on the delivery date if
delivered personalty 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 (fax no. 703-
265-1206) and the Deputy General Counsel (fax no. 703-265-1105), each at the
address of AOL set forth in the first paragraph of this Agreement. In the case
of ICP, such notice will be provided to ICP's President (fax no. 617-531-4999,
email [email protected]) at the address for ICP set forth in the first paragraph
of this Agreement. The relevant notice information set forth in this paragraph
with respect to either party may be changed by such party via notice to the
other pursuant to this paragraph.
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 Parties 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, with certification of the same by an officer of the destroying Party
(at the option of the Party receiving the request) all Confidential Information,
documents, manuals and other materials of 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 provision 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.
Entire Agreement. This Agreement, including its main body and all exhibits and
- ----------------
schedules thereto, sets forth the entire
-37-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
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, [**].
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 to any Interactive Service without the prior
written consent of AOL. Assumption of this Agreement by any successor to ICP
that is an Interactive Service (including, without limitation, by way of merger
or consolidation) shall be subject to AOL's prior written approval. In the
event of any Change of Control of ICP resulting in control of ICP by an
Interactive Service, AOL shall have the right to terminate this Agreement upon
written notice to ICP. In the event of any Change of Control of AOL resulting
in control of AOL by an ICP Competitor, ICP shall have the right to terminate
this Agreement upon written notice to AOL. 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 utilizes consultants or subcontractors to
- --------------
perform a material component of its programming obligations under this Agreement
or any work for which such consultant or subcontractor receives in excess of
[**] in any one year, 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.
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; Jurisdiction. This Agreement shall be interpreted, construed
- ----------------------------
and enforced in all respects in accordance with the laws of the State of New
York. Each of the Parties hereby irrevocably consents to the exclusive
jurisdiction of any federal or state courts located within the State of New York
over any and at actions and claims arising under this Agreement, as well as any
actions to enforce such claims or to recover damages or other relief in
connection with such claims and waives any objection of forum non conveniens and
----- --- ----------
any objection to venue to any action instituted hereunder.
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 property 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.
-38-
<PAGE>
EXHIBIT D
---------
[INTENTIONALLY OMITTED]
-39-
<PAGE>
EXHIBIT E
---------
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 ICP's reasonable control 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 arc appropriate for the client software then in use by AOL Members;
and (b) the ICP Internet Site is designed and populated in a manner that is
reasonably likely to minimize delays when AOL Members attempt to access
such site. At a minimum, ICP will use commercially reasonable efforts to
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. 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 fight to regulate
the promotions it provides to ICP hereunder until such time as ICP corrects
the ICP Technical Problem at issue.
4. 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.
-40-
<PAGE>
5. Security. ICP will utilize Internet standard encryption technologies
--------
(e.g., Secure Socket Layer - SSL) that are intended 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 use commercially
reasonable efforts to promptly remedy any security risks or breaches of
security as may be identified by AOL's Operations Security team.
6. 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 materially new functionality or features through
the ICP Internet Site ("New Functionality"), ICP 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 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.
-41-
<PAGE>
7. 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 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.
8. 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.
-42-
<PAGE>
EXHIBIT F
---------
KEYWORD GUIDELINES
------------------
PRINT/GRAPHIC
. Preferred listing: (AOL Logo appears) America Online Keyword:
IR America Online Keyword: IR
. If necessary, due to space constraints, listing may (pending approval)
---
appear as follows:
AOL Keyword: IR
. 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 announced entirely (even if an accompanying
graphic is set with AOL versus America Online)
Example voiceover would read:
"For more information, please visit America Online Keyword: IR"
AOL must approve all other uses by ICP of any AOL (or AOL Property) logo,
trademark, trade name or other proprietary term prior to such usage.
-43-
<PAGE>
EXHIBIT G
Warrant Agreement
[Attached]
-44-
<PAGE>
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE 1.5
------------
Carriage Fee Payments*
----------------------
<TABLE>
<CAPTION>
<S> <C>
-----------------------------------
Total Payments $14,100,000.00
Months 40
-----------------------------------
DATE Payment ($)
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
[**] [**]
-----------------------------------
</TABLE>
Notes
- -----
. Upon any IPO or financing event prior to the Q4 payment, payments
will accelerate so that CCBN is always 1 quarter ahead.
. *Upon the closing of any public offering of ICP's common stock (an
"IPO") before June 1, 2000, the payment due on September 1, 2000 (as
set forth above and as defined below) shall be due and payable within
fifteen (15) days following such IPO, and the due dates for the
remaining payments set forth above shall be accelerated by (a) nine
months (in the event of an IPO during the period beginning December 1,
1999 and ending February 29, 2000), (b) six (6) months (in the event
of an IPO during the period beginning March 1, 2000 and ending May
31, 2000), or (c) three (3) months (in the event of an IPO during the
period beginning June 1, 2000 and ending August 31, 2000).
-45-
<PAGE>
SCHEDULE 1.8
------------
List of ICP Competitors
-----------------------
C-call (Street Fusion)
V-call (Investor Business Network)
Multex
Bestcalls.com
P R Newswire
Business Wire
Direct Report
Merrill Corporation
Prime Zone
Stockmaster
Net Earnings
-46-
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SCHEDULE 4.2
------------
ICP's Advertising Revenue Share
-------------------------------
<TABLE>
<CAPTION>
Advertising Revenues AOL% ICP%
- -------------------- ---- ----
<S> <C> <C>
- --------------------------------------------
[**] [**] [**]
</TABLE>
* Percentages above apply only to the specific incremental amount, not to the
aggregate amount (i.e., for the range between [**] AOL shall receive [**]
of the gross advertising sales falling within such range, and [**] of the
gross advertising sales in the [**] range).
-47-
<PAGE>
Exhibit 10.6
EXECUTION COPY
SERIES E-1 CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
between
CCBN.COM, INC.,
THOMSON INFORMATION SERVICES, INC.
and
AMERICA ONLINE, INC.
Dated as of December 23, 1999
<PAGE>
<TABLE>
<S> <C>
Article I. THE PREFERRED SHARES 1
Section 1.01 Issuance and Delivery of the Preferred Shares................................................................ 1
Section 1.02 Closing...................................................................................................... 1
Article II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 1
Section 2.01 Organization, Qualifications and Corporate Power............................................................. 2
Section 2.02 Authorization of Agreements, Etc............................................................................. 2
Section 2.03 Validity..................................................................................................... 3
Section 2.04 Authorized Capital Stock..................................................................................... 3
Section 2.05 Financial Statements......................................................................................... 4
Section 2.06 Events Subsequent to the Date of the Balance Sheet........................................................... 5
Section 2.07 Litigation; Compliance with Law.............................................................................. 5
Section 2.08 Proprietary Information of Third Parties..................................................................... 6
Section 2.09 Patents, Trademarks, Etc..................................................................................... 6
Section 2.10 Title to Properties.......................................................................................... 7
Section 2.11 Leasehold Interests.......................................................................................... 7
Section 2.12 Insurance.................................................................................................... 7
Section 2.13 Taxes........................................................................................................ 7
Section 2.14 Other Agreements............................................................................................. 8
Section 2.15 Loans and Advances........................................................................................... 10
Section 2.16 Assumptions, Guaranties, Etc, of Indebtedness of Other Persons............................................... 10
Section 2.17 Significant Customers and Suppliers.......................................................................... 10
Section 2.18 Governmental Approvals....................................................................................... 10
Section 2.19 Disclosure................................................................................................... 10
Section 2.20 Offering of the Preferred Shares............................................................................. 11
Section 2.21 Brokers...................................................................................................... 11
Section 2.22 Officers..................................................................................................... 11
Section 2.23 Transactions With Affiliates................................................................................. 11
Section 2.24 Employees.................................................................................................... 11
Section 2.25 U.S. Real Property Holding Corporation....................................................................... 12
Section 2.26 ERISA........................................................................................................ 12
Section 2.27 Foreign Corrupt Practices Act................................................................................ 12
Section 2.28 Federal Reserve Regulations.................................................................................. 12
Section 2.29 Environmental Matters........................................................................................ 12
Section 2.30 Qualification as a Qualified Small Business.................................................................. 13
Article III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 13
Section 3.01 Organization and Power....................................................................................... 13
Section 3.02 Authorization................................................................................................ 13
Section 3.03 Validity..................................................................................................... 14
Section 3.04 Additional Representation.................................................................................... 14
Article IV. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS 15
Section 4.01 Opinion of Company's Counsel................................................................................. 15
Article V. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY......................................................................... 19
Article VI. COVENANTS OF THE COMPANY............................................................................................. 20
Section 6.01 Financial Statements, Reports, Etc........................................................................... 20
Section 6.02 Right of Participation....................................................................................... 21
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 6.03 Reserve for Conversion Shares............................................................... 22
Section 6.04 Corporate Existence......................................................................... 22
Section 6.05 Properties, Business, Insurance............................................................. 23
Section 6.06 Inspection.................................................................................. 23
Section 6.07 Restrictive Agreements Prohibited........................................................... 23
Section 6.08 Transactions with Affiliates................................................................ 23
Section 6.09 Expenses of Directors....................................................................... 23
Section 6.10 Use of Proceeds............................................................................. 23
Section 6.11 Board of Directors Meetings................................................................. 24
Section 6.12 By-laws..................................................................................... 24
Section 6.13 Employee Non-Disclosure, Non-Competition and Developments Agreements........................ 24
Section 6.14 Subsidiaries................................................................................ 24
Section 6.15 Compliance with Laws........................................................................ 25
Section 6.16 Keeping of Records of Account............................................................... 25
Section 6.17 U.S. Real Property Interest................................................................. 25
Section 6.18 Rule 144A Information....................................................................... 25
Section 6.19 Compensation................................................................................ 25
Section 6.20 Confidentiality............................................................................. 26
Section 6.21 Qualification as a Qualified Small Business................................................. 26
Section 6.22 Right of First Refusal upon Sale of Company................................................. 27
Section 6.23 Right of First Offer........................................................................ 27
Section 6.24 Stock Option Plan........................................................................... 29
Section 6.25 Termination of Covenants.................................................................... 29
Article VII. MISCELLANEOUS 29
Section 7.01 Expenses.................................................................................... 29
Section 7.02 Survival.................................................................................... 29
Section 7.03 Brokerage................................................................................... 29
Section 7.04 Parties in Interest......................................................................... 29
Section 7.05 Notices..................................................................................... 30
Section 7.06 Governing Law............................................................................... 30
Section 7.07 Entire Agreement............................................................................ 30
Section 7.08 Counterparts................................................................................ 30
Section 7.09 Amendments.................................................................................. 30
Section 7.10 Severability................................................................................ 30
Section 7.11 Titles and Subtitle......................................................................... 30
Section 7.12 Certain Defined Terms....................................................................... 30
Article VIII.
</TABLE>
iii
<PAGE>
INDEX TO SCHEDULES
SCHEDULE I Purchasers
SCHEDULE II Disclosure Schedule
SCHEDULE III Purchaser Disclosure Schedule
SCHEDULE IV Security Holders
SCHEDULE V Agreements
INDEX TO EXHIBITS
EXHIBIT A Form of Registration Rights Agreement
EXHIBIT B Form of Stockholders Agreement
EXHIBIT C Second Amended and Restated Certificate of Incorporation
EXHIBIT D Form of Non-Disclosure, Non-Competition and Developments
Agreement
iv
<PAGE>
SERIES E CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT dated as of December 23,
1999 between CCBN.COM, Inc., a Delaware corporation (the "Company"), America
Online, Inc. ("AOL") and Thomson Information Services, Inc. ("Thomson" and,
collectively with AOL, the "Purchasers").
WHEREAS, the Company wishes to issue and sell to the Purchasers up to
207,980 shares (the "Preferred Shares") of the authorized but unissued Series E-
1 Convertible Preferred Stock, $.01 par value, of the Company (the "Series E-1
Preferred Stock"); and
WHEREAS, the Purchasers, severally, wish to purchase the Preferred Shares
on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties agree as follows:
Article I. THE PREFERRED SHARES
Section 1.01 Issuance and Delivery of the Preferred Shares. The Company
---------------------------------------------
agrees to issue and sell to each Purchaser, and each Purchaser hereby agrees to
purchase from the Company, the number of Preferred Shares set forth opposite the
name of such Purchaser under the heading "Number of Preferred Shares to be
Purchased" on Schedule I, at the aggregate purchase price set forth opposite the
name of such Purchaser under the heading "Aggregate Purchase Price for Preferred
Shares" on Schedule I.
Section 1.02 Closing. The closing shall take place at the offices of Foley,
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Hoag & Eliot LLP, One Post Office Square, Boston, Massachusetts 02109, at 10:00
a.m., Boston time, on December 29, or at such other location, date and time as
may be agreed upon between the Purchasers and the Company (such closing being
called the "Closing" and such date and time being called the "Closing Date"). At
the Closing, the Company shall issue and deliver to each Purchaser a stock
certificate or certificates in definitive form, registered in the name of such
Purchaser, representing the Preferred Shares being purchased by it at the
Closing. As payment in full for the Preferred Shares being purchased by it under
this Agreement, and against delivery of the stock certificate or certificates
therefor as aforesaid, on the Closing Date each Purchaser shall (i) deliver to
the Company a check payable to the order of the Company, in the amount set forth
opposite the name of such Purchaser under the heading "Aggregate Purchase Price
for Preferred Shares" on Schedule I, (ii) transfer such sum to the account of
the Company by wire transfer, or (iii) deliver or transfer such sum to the
Company by any combination of such methods of payments.
Article II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company (which term, for purposes of this Article II shall, except
where otherwise indicated or where the context requires otherwise, include the
Company and each of its subsidiaries) represents and warrants to the Purchasers
that, except as set forth in the Disclosure Schedule attached as Schedule II:
<PAGE>
Section 2.01 Organization; Qualifications and Corporate Power.
------------------------------------------------
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and is duly
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the nature of the business transacted by it or the
character of the properties owned or leased by it requires such qualification
except where failure to so qualify could not reasonably be expected to result in
a material adverse effect on the Company or its business. The Company has the
corporate power and authority to own and hold its properties and to carry on its
business as now conducted, to execute, deliver and perform this Agreement, the
Amended and Restated Registration Rights Agreement with the Purchasers and the
other parties thereto in the form attached as Exhibit A (the "Registration
---------
Rights Agreement") and the Amended and Restated Stockholders Agreement with the
Purchasers and the other parties thereto in the form attached as Exhibit B (the
---------
"Stockholders Agreement"), to issue, sell and deliver the Preferred Shares and
to issue and deliver the shares of Series A Common Stock, $.00l par value, of
the Company issuable upon conversion of the Preferred Shares (the "Conversion
Shares").
(b) The Company has one subsidiary, Talkpoint Communications, Inc., a
Delaware corporation ("Talkpoint"). Except for Talkpoint, the Company does not
(i) own of record or beneficially, directly or indirectly, (A) any shares of
capital stock or securities convertible into capital stock of any other
corporation or (B) any participating interest in any partnership, joint venture
or other non-corporate business enterprise or (ii) control, directly or
indirectly, any other entity.
Section 2.02 Authorization of Agreements; Etc.
---------------------------------------------
(a) The execution and delivery by the Company of this Agreement, the
Registration Rights Agreement and the Stockholders Agreement, the performance by
the Company of its obligations hereunder and thereunder, the issuance, sale and
delivery of the Preferred Shares and the issuance and delivery of the Conversion
Shares have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Second Amended and Restated Certificate of Incorporation of the
Company, as amended (the "Charter"), or the By-laws of the Company, as amended,
or any provision of any indenture, agreement or other instrument to which the
Company, any of its subsidiaries or any of their respective properties or assets
is bound, or conflict with, result in a breach of or constitute (with due notice
or lapse of time or both) a default under any such indenture, agreement or other
instrument, or result in the creation or imposition of any lien, charge,
restriction, claim or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company or any of its subsidiaries.
(b) The Preferred Shares have been duly authorized and, when issued in
accordance with this Agreement, will be validly issued, fully paid and
nonassessable shares with no personal liability attaching to the ownership
thereof and will be free and clear of all liens, charges, restrictions, claims
and encumbrances imposed by or through the Company except as set forth in the
Registration Rights Agreement. The Conversion Shares have been duly reserved
2
<PAGE>
for issuance upon conversion of the Preferred Shares and, when so issued, will
be duly authorized, validly issued, fully paid and nonassessable shares of
Common Stock with no personal liability attaching to the ownership thereof and
will be free and clear of all liens, charges, restrictions, claims and
encumbrances imposed by or through the Company except as set forth in the
Registration Rights Agreement. Neither the issuance, sale or delivery of the
Preferred Shares nor the issuance or delivery of the Conversion Shares is
subject to any preemptive right of stockholders of the Company or to any right
of first refusal or other right in favor of any person, other than the rights of
Thomson as set forth in that certain Amended and Restated Agreement Among
Thomson and Founders dated as of March 31, 1999, by and among Thomson, the
Company, the Parker Family Limited Partnership, Jeffrey P. Parker and Robert I.
Adler (the "Thomson Agreement") and the rights of certain major holders of the
Company's Series D Preferred Stock (the "Major Purchasers") pursuant to the
Series D Convertible Preferred Stock Purchase Agreement dated June 9, 1999 by
and among the Company and the several purchasers named therein (the "Series D
Purchase Agreement"). Thomson's preemptive right with respect to the Preferred
Shares issued to AOL hereunder are reflected in the total number of Preferred
Shares Thomson is purchasing hereunder. Each Major Purchaser has waived its
preemptive rights with respect to the issuance and sale of the Preferred Shares.
In addition to the Preferred Shares being issued pursuant to this Agreement, the
Company has reserved 250,000 additional shares of its Series E-1 Preferred Stock
to be issued to AOL upon exercise of AOL's right to purchase such shares
pursuant to a Stock Subscription Warrant between the Company and AOL of even
date herewith (the "Warrant Agreement").
Section 2.03 Validity. This Agreement has been duly executed and delivered
--------
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, and the Registration Rights
Agreement and the Stockholders Agreement, when executed and delivered in
accordance with this Agreement, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, in each case, except insofar as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
of general application affecting enforcement of creditors' rights and except as
to enforceability of the indemnification and contribution provisions of the
Registration Rights Agreement.
Section 2.04 Authorized Capital Stock. The authorized capital stock of the
------------------------
Company (which term, as used in this Section 2.04, excludes the Company's
subsidiary) immediately prior to the closing will consist of the following:
10,000,000 shares of Series A Common Stock, par value $0.001;
64,031 shares of Series B Common Stock, par value $0.001;
81,366 shares of Series C Common Stock, par value $0.001;
59,250 shares of Series D Common Stock, par value $0.001;
250,050 shares of Series E Common Stock, par value $0.001 (together the
foregoing classes of Common Stock are referred to herein as the "Common
Stock");
562,500 shares of Series A Convertible Preferred Stock, par value $.01 per
share;
344,043 shares of Series B Convertible Preferred Stock, par value $.01 per
share;
41,544 shares of Series C Convertible Preferred Stock par value $.01 per
share;
3
<PAGE>
891,314 shares of Series D Convertible Preferred Stock par value $.01 per
share;
457,980 shares of Series E-1 Convertible Preferred Stock, par value $.0l
per share; and
1,346,650 shares of Series E Convertible Preferred Stock, par value $.01
per share, of an undesignated subseries.
Immediately prior to the Closing, the following stock of the Company will be
issued, outstanding, fully paid and nonassessable:
3,834,129 shares of Series A Common Stock, par value $0.001;
61,687 shares of Series B Common Stock, par value $0.001;
65,522 shares of Series C Common Stock, par value $0.001;
57,984 shares of Series D Common Stock, par value $0.001;
146,321 shares of Series E Common Stock, par value $0.001;
562,500 shares of Series A Convertible Preferred Stock, par value $.0l per
share;
344,043 shares of Series B Convertible Preferred Stock, par value $.01 per
share;
41,544 shares of Series C Convertible Preferred Stock par value $.01 per
share; and
709,970 shares of Series D Convertible Preferred Stock par value $.01 per
share.
The stockholders of record and holders of subscriptions, warrants, options,
convertible securities, and other rights (contingent or other) to purchase or
otherwise acquire equity securities of the Company, and the number of shares of
Common Stock or Preferred Stock and the number of such subscriptions, warrants,
options, convertible securities, and other such rights held by each, are as set
forth in the attached Schedule IV. The designations, powers, preferences,
rights, qualifications, limitations and restrictions in respect of each class
and series of authorized capital stock of the Company are as set forth in the
Charter, the relevant part of which is attached as Exhibit C, and all such
---------
designations, powers, preferences, rights, qualifications, limitations and
restrictions are valid, binding and enforceable and in accordance with all
applicable laws. Except as provided in this Agreement or as set forth in the
attached Schedule IV, (i) no person owns of record or is known to the Company to
own beneficially any share of Common Stock, (ii) no subscription, warrant,
option, convertible security, or other right (contingent or other) to purchase
or otherwise acquire equity securities of the Company is authorized or
outstanding and (iii) there is no commitment by the Company to issue shares,
subscriptions, warrants, options, convertible securities, or other such rights
or to distribute to holders of any of its equity securities any evidence of
indebtedness or asset. Except as provided for in the Charter or as set forth in
the attached Schedule IV, the Company has no obligation (contingent or other) to
purchase, redeem or otherwise acquire any of its equity securities or any
interest therein or to pay any dividend or make any other distribution in
respect thereof, and to the Company's knowledge, except for the Stockholders
Agreement and the Thomson Agreement, there are no voting trusts or agreements,
stockholders' agreements, pledge agreements, buy-sell agreements, rights of
first refusal, preemptive rights or proxies relating to any securities of the
Company. All of the outstanding securities of the Company were issued in
compliance with all applicable Federal and state securities laws.
Section 2.05 Financial Statements. The Company has furnished to the
--------------------
Purchasers the audited consolidated balance sheets of the Company as of December
31, 1998, and the related
4
<PAGE>
audited consolidated statements of income, stockholders' deficit and cash flows
of the Company for the year ended December 31, 1998; and the unaudited
consolidated balance sheet of the Company as of September 30, 1999, and the
related unaudited consolidated statements of income, stockholders' equity and
cash flows of the Company for the period then ended (the "Balance Sheet"). Such
financial statements have been prepared in accordance with generally accepted
accounting principles consistently applied (except that such unaudited financial
statements do not contain all of the required footnotes or period end
adjustments not material in the aggregate) and fairly present the consolidated
financial position of the Company as of such dates. Since the date of the
Balance Sheet, (i) there has been no change in the assets, liabilities or
financial condition of the Company from that reflected in the Balance Sheet
except for changes in the ordinary course of business which in the aggregate
have not been materially adverse and (ii) none of the business, prospects,
financial condition, operations, property or affairs of the Company has been
materially adversely affected by any occurrence or development, individually or
in the aggregate, whether or not insured against.
Section 2.06 Events Subsequent to the Date of the Balance Sheet. Since the
-------------------------------- -----------------
date of the Balance Sheet, and other than as contemplated in this Agreement or
as set forth in Schedule II, the Company has not (i) issued any stock, bond or
other corporate security (ii) borrowed any amount or incurred or become subject
to any liability (absolute, accrued or contingent), except current liabilities
incurred and liabilities under contracts entered into in the ordinary course of
business, (iii) discharged or satisfied any lien or encumbrance or incurred or
paid any obligation or liability (absolute, accrued or contingent) other than
current liabilities shown on the Balance Sheet and current liabilities incurred
since the date of the Balance Sheet in the ordinary course of business, (iv)
declared or made any payment or distribution to stockholders or purchased or
redeemed any share of its capital stock or other security, (v) mortgaged,
pledged, encumbered or subjected to lien any of its assets, tangible or
intangible, other than liens for taxes not yet due and payable, (vi) sold,
assigned or transferred any of its tangible assets except in the ordinary course
of business, or canceled any debt or claim, (vii) sold, assigned, transferred or
granted any exclusive license with respect to any patent, trademark, trade name,
service mark, copyright, trade secret or other intangible asset, (viii) suffered
any loss of property or waived any right of substantial value whether or not in
the ordinary course of business, (ix) made any change in officer compensation
except in the ordinary course of business and consistent with past practice, (x)
made any material change in the manner of business or operations of the Company,
(xi) entered into any transaction except in the ordinary course of business or
as otherwise contemplated hereby or (xii) entered into any commitment
(contingent or otherwise) to do any of the foregoing.
Section 2.07 Litigation; Compliance with Law. There is no (i) action,
-------------------------------
suit, claim, proceeding or investigation pending or, to the Company's knowledge,
threatened against the Company, at law or in equity, or before or by any
Federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, (ii) arbitration
proceeding relating to the Company pending under collective bargaining
agreements or otherwise or (iii) governmental inquiry pending or, to the
Company's knowledge, threatened against the Company (including without
limitation any inquiry as to the qualification of the Company to hold or receive
any license or permit), and to the Company's knowledge there is no basis for any
of the foregoing. The Company is not in default with respect to any order,
5
<PAGE>
writ, injunction or decree known to or served upon the Company of any court or
of any Federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign. There is no
action or suit by the Company pending or threatened against others. The Company
has complied with all United States laws, rules, regulations and orders
applicable to its business, operations, properties, assets, products and
services except where such non-compliance could not reasonably be expected to
have a material adverse effect on the Company or its business. The Company has
all necessary United States permits, licenses and other authorizations required
to conduct its business as conducted, and the Company has been operating its
business pursuant to and in compliance with the terms of all such permits,
licenses and other authorizations except where the failure to obtain such
permit, license or other authorization or such non-compliance could not
reasonably be expected to have a material adverse effect on the Company or its
business. There is no existing United States law, rule, regulation or order,
whether Federal, state, county or local, which would prohibit or restrict the
Company from, or otherwise materially adversely affect the Company in conducting
its business in any jurisdiction in which it is now conducting business.
Section 2.08 Proprietary Information of Third Parties. To the Company's
----------------------------------------
knowledge, no third party has claimed that any person employed by or affiliated
with the Company has (a) violated or may be violating any of the terms or
conditions of his employment, non-competition or non-disclosure agreement with
such third party, (b) disclosed or may be disclosing or utilized or may be
utilizing any trade secret or proprietary information or documentation of such
third party or (c) interfered or may be interfering in the employment
relationship between such third party and any of its present or former
employees. No third party has requested information from the Company which
suggests that such a claim might be contemplated. To the Company's knowledge, no
person employed by or affiliated with the Company has employed or proposes to
employ any trade secret or any information or documentation proprietary to any
former employer, and to the Company's knowledge, no person employed by or
affiliated with the Company has violated any confidential relationship which
such person may have had with any third party, in connection with the
development or sale of any product or proposed product or the development or
sale of any service or proposed service of the Company, and the Company has no
reason to believe there will be any such employment or violation. To the
Company's knowledge, none of the execution or delivery of this Agreement, or the
carrying on of the business of the Company as officers, employees or agents by
any officer, director or key employee of the Company, or the conduct or proposed
conduct of the business of the Company, will conflict with or result in a breach
of the terms, conditions or provisions of or constitute a default under any
contract, covenant or instrument under which any such person is obligated.
Section 2.09 Patents; Trademarks; Etc. Set forth in Schedule II is a list
------------------------
and brief description of all domestic and foreign patents, patent rights, patent
applications, trademarks, trademark applications, service marks, service mark
applications, trade names and copyrights, and all applications for such which
are in the process of being prepared, owned by or registered in the name of the
Company, or of which the Company is a licensor or licensee or in which the
Company has any rights other than generally commercially available third-party
software. The Company owns or possesses adequate licenses or other rights to
use, or to its knowledge can develop or has developed, all patents, patent
applications, trademarks, trademark applications, service marks, service mark
applications, trade names, copyrights, manufacturing processes,
6
<PAGE>
formulae, trade secrets, customer lists and know how (collectively,
"Intellectual Property") material to the conduct of its business as conducted,
and no claim is pending or, to the Company's knowledge, threatened to the effect
that the operations of the Company infringe upon or conflict with the asserted
rights of any other person under any Intellectual Property, and to the Company's
knowledge there is no basis for any such claim (whether or not pending or
threatened). No claim is pending or, to the Company's knowledge threatened, to
the effect that any such Intellectual Property owned or licensed by the Company,
or which the Company otherwise has the right to use, is invalid or unenforceable
by the Company, and, to the Company's knowledge, there is no basis for any such
claim (whether or not pending or threatened). To the Company's knowledge, all
technical information developed by and belonging to the Company which has not
been patented has been kept confidential.
Section 2.10 Title to Properties. The Company has good, clear and
-------------------
marketable title to its properties and assets reflected on the Balance Sheet or
acquired by them since the date of the Balance Sheet (other than properties and
assets disposed of in the ordinary course of business since the date of the
Balance Sheet), and all such properties and assets are free and clear of
mortgages, pledges, security interests, liens, charges, claims, restrictions and
other encumbrances (including without limitation, easements and licenses),
except for liens for or current taxes not yet due and payable and minor
imperfections of title, if any, not material in nature or amount and not
materially detracting from the value or impairing the use of the property
subject thereto or impairing the operations or proposed operations of the
Company and its subsidiaries. To the Company's knowledge after due inquiry,
there are no condemnation, environmental, zoning or other land use regulation
proceedings, either instituted or planned to be instituted, which would
adversely affect the use or operation of the Company's properties and assets for
their intended uses and purposes, or the value of such properties, and the
Company has not received notice of any special assessment proceedings which
would affect such properties and assets.
Section 2.11 Leasehold Interests. Each lease or agreement to which the
-------------------
Company is a party under which it is a lessee of any property, real or personal,
is a valid and subsisting agreement, duly authorized and entered into, without
any default of the Company thereunder and, to the Company's knowledge, without
any default thereunder of any other party thereto. No event has occurred and is
continuing which, with due notice or lapse of time or both, would constitute a
default or event of default by the Company under any such lease or agreement or,
to the Company's knowledge, by any other party thereto. The Company's possession
of such property has not been disturbed and, to the Company's knowledge after
due inquiry, no claim has been asserted against the Company adverse to its
rights in such leasehold interests.
Section 2.12 Insurance. The Company holds valid policies covering all of
---------
the insurance required to be maintained by it under Section 6.05.
Section 2.13 Taxes. The Company has filed all tax returns, Federal,
-----
state, county and local, required to be filed by it, and the Company has paid
all taxes shown to be due on such returns. The Company has established reserves
for all taxes accrued but not yet payable in accordance with generally accepted
accounting principles. The Federal income tax returns of the Company have never
been audited by the Internal Revenue Service. No deficiency assessment with
respect to or proposed adjustment of the Company's Federal state, county or
local taxes is
7
<PAGE>
pending or, to the Company's knowledge, threatened. There is no tax lien,
whether imposed by any Federal, state, county or local taxing authority,
outstanding against the assets, properties or business of the Company. Neither
the Company nor any of its present or former stockholders has ever filed an
election pursuant to Section 1362 of the Internal Revenue Code of 1986, as
amended (the "Code"), that the Company be taxed as an S corporation.
Section 2.14 Other Agreements. Except as set forth in the attached
----------------
Schedule V, the Company is not a party to or otherwise bound by any written or
oral agreement, instrument, commitment or restriction which individually or in
the aggregate could materially adversely affect the business, prospects,
financial condition, operations, property or affairs of the Company, or any:
(a) distributor, dealer, manufacturer's representative or sales
agency agreement which is not terminable on less than ninety (90) days' notice
without cost or other liability to the Company (except for agreements which, in
the aggregate, are not material to the business of the Company);
(b) sales agreement which entitles any customer to a rebate or right
of set-off to return any product to the Company after acceptance thereof or to
delay the acceptance thereof, or which varies in any material respect from the
Company's standard form agreements;
(c) agreement with any labor union (and, to the knowledge of the
Company, no organizational effort is being made with respect to any of its
employees);
(d) agreement with any supplier with a value in excess of $50,000
containing any provision permitting any party other than the Company to
renegotiate the price or other terms, or containing any pay-back or other
similar provision, upon the occurrence of a failure by the Company to meet its
obligations under the agreement when due or the occurrence of any other event;
(e) agreement for the future purchase of fixed assets or for the
future purchase of materials, supplies or equipment in excess of its normal
operating requirements;
(f) agreement for the employment of any officer, employee or other
person (whether of a legally binding nature or in the nature of informal
understandings), on a full-time or consulting basis which in the United States
is not terminable on notice without cost or other liability to the Company,
except normal severance arrangements and accrued vacation pay;
(g) bonus, pension, profit-sharing, retirement, hospitalization,
insurance, stock purchase, stock option or other plan, agreement or
understanding pursuant to which benefits are provided to any employee of the
Company (other than group insurance plans applicable to employees generally)
other than the Company's 1999 Incentive and Nonqualified Stock Option Plan;
(h) agreement relating to the borrowing of money or to the mortgaging
or pledging of, or otherwise placing a lien or security interest on, any asset
of the Company;
8
<PAGE>
(i) guaranty of any obligation for borrowed money or otherwise;
(j) voting trust or agreement, stockholders' agreement, pledge
agreement, buy-sell agreement or first refusal or preemptive rights agreement
relating to any securities of the Company;
(k) agreement, or group of related agreements with the same party or
any group of affiliated parties, under which the Company has advanced or agreed
to advance money or has agreed to lease any property as lessee or lessor;
(1) agreement or obligation (contingent or otherwise) to issue, sell
or otherwise distribute or to repurchase or otherwise acquire or retire any
share of its capital stock or any of its other equity securities, other than
rights to repurchase shares from former employees and consultants;
(m) assignment, license or other agreement with respect to any form of
intangible property (other than license agreements for generally commercially
available third party software and agreements involving payment or receipt by
the Company of less than $25,000);
(n) agreement under which it has granted any person any registration
rights, other than the Registration Rights Agreement;
(o) agreement under which it has limited or restricted its right to
compete with any person in any respect; or
(p) other agreement or group of related agreements with the same party
involving more than $50,000 or continuing over a period of more than six months
from the date or dates thereof (including renewals or extensions optional with
another party), which agreement or group of agreements is not terminable by the
Company without penalty upon notice of thirty (30) days or less, but excluding
any agreement or group of agreements with a customer of the Company for the
sale, lease or rental of the Company's products or services if such agreement or
group of agreements was entered into by the Company in the ordinary course of
business.
The Company, and to the Company's knowledge after due inquiry, each other
party thereto, have in all material respects performed all the obligations
required to be performed by them to date (or each non-performing party has
received a valid, enforceable and irrevocable written waiver with respect to its
non-performance), have received no notice of default and are not in default
(with due notice or lapse of time or both) under any agreement instrument,
commitment, plan or arrangement to which the Company is a party or by which it
or its property may be bound except where such default could not reasonably be
expected to have a material adverse effect on the Company or its business. The
Company has no present expectation or intention of not fully performing all its
obligations under each such agreement instrument, commitment, plan or
arrangement, and the Company has no knowledge of any breach or anticipated
breach by the other party to any agreement, instrument, commitment, plan or
9
<PAGE>
arrangement to which the Company is a party. The Company is in compliance with
all of the terms and provisions of its Charter and By-laws, as amended.
Section 2.15 Loans and Advances. The Company does not have any outstanding
------------------
loans or advances to any person and is not obligated to make any such loans or
advances, except, in each case, for advances to employees of the Company in
respect of reimbursable business expenses anticipated to be incurred by them in
connection with their performance of services for the Company.
Section 2.16 Assumptions, Guaranties, Etc. of Indebtedness of Other
------------------------------------------------------
Persons. The Company has not assumed, guaranteed, endorsed or otherwise become
- -------
directly or contingently liable on any indebtedness of any other person
(including, without limitation, liability by way of agreement, contingent or
otherwise, to purchase, to provide funds for payment to supply funds to or
otherwise invest in the debtor, or otherwise to assure the creditor against
loss), except for guaranties by endorsement of negotiable instruments for
deposit or collection in the ordinary course of business.
Section 2.17 Significant Customers and Suppliers. No customer or supplier
-----------------------------------
which was material to the Company's financial performance during the period
covered by the financial statements referred to in Section 2.5 or which has been
material to the Company's financial performance thereafter, has terminated,
materially reduced or threatened to terminate or materially reduce its purchases
from or provision of products or services to the Company, as the case may be.
Section 2.18 Governmental Approvals. Subject to the accuracy of the
----------------------
representations and warranties of the Purchasers set forth in Article III, no
registration or filing with, or consent or approval of or other action by, any
Federal, state or other governmental agency or instrumentality is or will be
necessary for the valid execution, delivery and performance by the Company of
this Agreement, the Registration Rights Agreement or the Stockholders Agreement,
the issuance, sale and delivery of the Preferred Shares or, upon conversion
thereof, the issuance and delivery of the Conversion Shares, other than (i)
filings pursuant to state securities laws (all of which filings have been made
by the Company, other than those which are required to be made after the Closing
and which will be duly made on a timely basis) in connection with the sale of
the Preferred Shares and (ii) with respect to the Registration Rights Agreement,
the registration of the shares covered thereby with the Commission and filings
pursuant to state securities laws.
Section 2.19 Disclosure. Neither this Agreement nor any Schedule or Exhibit
----------
to this Agreement contains an untrue statement of a material fact or omits a
material fact necessary to make the statements contained herein or therein not
misleading. The financial projections and other estimates contained in the draft
1999 Budget of the Company were prepared by the Company based on the Company's
experience in the industry and on assumptions of fact and opinion as to future
events which the Company, at the date of the issuance of the draft 1999 Budget,
believed to be reasonable, but which the Company cannot and does not assure or
guarantee the attainment of in any manner. As of the date hereof no facts have
come to the attention of the Company which would, in its opinion, require the
Company to revise or amplify
10
<PAGE>
the assumptions underlying such projections and other estimates or the
conclusions derived therefrom.
Section 2.20 Offering of the Preferred Shares. Neither the Company nor any
--------------------------------
person authorized or employed by the Company as agent, broker, dealer or
otherwise in connection with the offering or sale of the Preferred Shares or any
security of the Company similar to the Preferred Shares has offered the
Preferred Shares or any such similar security for sale to, or solicited any
offer to buy the Preferred Shares or any such similar security from, or
otherwise approached or negotiated with respect thereto with, any person or
persons, and neither the Company nor any person acting on its behalf has taken
or will take any other action (including, without limitation, any offer,
issuance or sale of any security of the Company under circumstances which might
require the integration of such security with Preferred Shares under the
Securities Act or the rules and regulations of the Commission thereunder), in
either case so as to subject the offering, issuance or sale of the Preferred
Shares to the registration provisions of the Securities Act.
Section 2.21 Brokers. The Company has no contract, arrangement or
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understanding with any broker, finder or similar agent with respect to the
transactions contemplated by this Agreement.
Section 2.22 Officers. Set forth in Schedule II is a list of the names of
--------
the officers of the Company, together with the title or job classification of
each such person and the total compensation anticipated to be paid to each such
person by the Company in 1999. None of such persons has an employment agreement
or understanding, whether oral or written, with the Company or any of its
subsidiaries, which is not terminable on notice by the Company or such
subsidiary without cost or other liability to the Company or such subsidiary.
Section 2.23 Transactions With Affiliates. Except as indicated in Schedule
----------------------------
2.23, no director, officer, employee or stockholder of the Company, or member of
the family of any such person, or, to the knowledge of the Company, any
corporation, partnership, trust or other entity in which any such person, or any
member of the family of any such person, has a substantial interest in or is an
officer, director, trustee, partner or holder of more than 50% of the
outstanding capital stock thereof, is a party to any transaction with the
Company, including any contract, agreement or other arrangement providing for
the employment of furnishing of services by, rental of real or personal property
from or otherwise requiring payments to any such person or firm, other than
employment-at-will arrangements in the ordinary course of business.
Section 2.24 Employees. Each of the officers of the Company, each key
---------
employee and each other employee now employed by the Company who has access to
confidential information of the Company has executed a Non-Disclosure,
Noncompetition and Developments Agreement substantially in the form of Exhibit D
---------
(the "Employee Agreement"), and such agreements are in full force and effect. No
officer or key employee of the Company has advised the Company (orally or in
writing) that he intends to terminate employment with the Company. The Company
has complied in all material respects with all applicable United States laws
relating to the employment of labor, including provisions relating to wages,
hours, equal opportunity, collective
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bargaining and the payment of Social Security and other taxes, and with the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
Section 2.25 U.S. Real Property Holding Corporation. The Company is not now
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and has never been a "United States real property holding corporation", as
defined in Section 897(c)(2) of the Code and Section 1.897-2(b) of the
Regulations promulgated by the Internal Revenue Service, and the Company has
filed with the Internal Revenue Service all statements, if any, with its United
States income tax returns which are required under Section 1.897-2(h) of such
Regulations.
Section 2.26 ERISA.
-----
(a) No Employee Plan is an "employee pension benefit plan" as defined
in Section 3(2) of ERISA. The Company and its ERISA Affiliates have not incurred
nor expect to incur any liability under Title IV of ERISA.
(b) None of the Employee Plans or other arrangements listed on
Schedule V covers any non-United States employee or former employee of the
Company, except as required by Section 4980 of the Code.
(c) Each Employee Plan and each Benefit Arrangement has been
maintained in substantial compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and regulations which are
applicable to such Employee Plan and Benefit Arrangement, including ERISA.
(d) No taxes under Section 4980B or Section 4975 of the Code have been
incurred in respect of any Employee Plan.
Section 2.27 Foreign Corrupt Practices Act. The Company has not taken any
-----------------------------
action which would cause it to be in violation of the Foreign Corrupt practices
Act of 1977, as amended, or any rules and regulations thereunder. To the
Company's knowledge after due inquiry, there is not now, and there has never
been any employment by the Company of, or beneficial ownership in the Company
by, any governmental or political official in any country in the world.
Section 2.28 Federal Reserve Regulations. The Company is not engaged in the
---------------------------
business of extending credit for the purpose of purchasing or carrying margin
securities (within the meaning of Regulation G of the Board of Governors of the
Federal Reserve System), and no part of the proceeds of the Preferred Shares
will be used to purchase or carry any margin security or to extend credit to
others for the purpose of purchasing or carrying any margin security or in any
other manner which would involve a violation of any of the regulations of the
Board of Governors of the Federal Reserve System.
Section 2.29 Environmental Matters. For the purposes of this Section 2.29,
---------------------
the following terms shall have the following meanings;
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"Environmental Law" means any federal, state or local statute, law,
ordinance, rule or regulation of the United States and any other jurisdiction
within the United States now effective and any order, to which the Company is a
party or is otherwise directly bound, of the United States or other jurisdiction
within the United States now effective relating to: (i) pollution or protection
of the environment, including natural resources; (ii) manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Substances; or (ii) exposure of persons, including employees, to
Hazardous Substances;
"Hazardous Substances" means any substance, whether liquid, solid or gas
(i) listed, identified or designated as hazardous or toxic under any
Environmental Law, (ii) which, applying criteria specified in any Environmental
Law, is hazardous or toxic, or (iii) the use or disposal of which is regulated
under Environmental Law.
As of the Closing Date the Company has not been required to obtain any permits,
licenses or any other authorizations which are required under any Environmental
Law. To the best of the Company's knowledge, no Hazardous Substances have been,
or have been threatened to be, discharged, released or emitted into the air,
water, surface water, ground water, land surface or subsurface strata or
transported to or from the property of the Company by the Company except in
compliance in all material respects with Environmental Law and except for
incidental release of Hazardous Substances in amounts or concentrations which
would not reasonably be expected to give rise to any claims or liabilities
against the Company under any Environmental Law. The Company has not received
any written notification from a governmental agency that there is any violation
of any Environmental Law with respect to the business and properties of the
Company, nor has the Company received any written notification from a
governmental agency pursuant to Section 104, 106 or 107 of the Comprehensive
Environmental Response Compensation and Liability Act, as amended.
Section 2.30 Qualification as a Qualified Small Business. The Company is a
-------------------------------------------
"qualified small business," as defined in Section 1202(d) of the Code and the
Preferred Shares constitute "qualified small business stock" as defined in
Section 1202(c) of the Code.
Article III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Except as otherwise noted on Schedule III hereto, each Purchaser severally
and not jointly represents and warrants to the Company that:
Section 3.01 Organization and Power. Such purchaser, if a corporation or
----------------------
partnership, is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its formation. Such purchaser has all necessary
power and authority to own and hold its properties and to carry on its business
as currently conducted and to execute, deliver and perform this Agreement, the
Registration Rights Agreement and the Stockholders Agreement.
Section 3.02 Authorization. The execution and delivery by such Purchaser of
-------------
this Agreement, the Registration Rights Agreement, and the Stockholders
Agreement and the performance by Purchaser of its obligations hereunder and
thereunder, have been duly authorized by all requisite corporate or other action
and will not violate any provision of law, any order of
13
<PAGE>
any court or other agency of government, or if a corporation, Purchaser's
Certificate of Incorporation or by-laws, or any provision of any indenture,
agreement, or other instrument to which such Purchaser or its properties or
assets is bound.
Section 3.03 Validity. This Agreement has been duly executed and delivered
--------
by such Purchaser and constitutes the legal, valid and binding obligation of
Purchaser, enforceable in accordance with its terms. The Registration Rights
Agreement and the Stockholders Agreement, when executed and delivered in
accordance with this agreement, will constitute legal, valid and binding
obligations of such Purchaser, enforceable in accordance with their respective
terms.
Section 3.04 Additional Representation. Each Purchaser severally represents
-------------------------
and warrants to the Company that:
(a) it is an "accredited investor" within the meaning of Rule 501
under the Securities Act and was not organized for the specific purpose of
acquiring the Preferred Shares;
(b) it has sufficient knowledge and experience in investing in
companies similar to the Company in terms of the Company's stage of development
so as to be able to evaluate the risks and merits of its investment in the
Company and it is able financially to bear the risks thereof;
(c) such Purchaser believes it has received all information reasonably
necessary for deciding whether to purchase the Preferred Shares. It has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the Preferred Shares and to discuss the Company's
business, management and financial affairs with the Company's management;
(d) the Preferred Shares being purchased by it are being acquired for
its own account for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof,
(e) it understands that (i) the Preferred Shares and the Conversion
Shares have not been registered under the Securities Act by reason of their
issuance in action exempt from the registration requirements of the Securities
Act pursuant to Section 4(2) thereof or Rule 505 or 506 promulgated under the
Securities Act, (ii) the Preferred Shares and, upon conversion thereof, the
Conversion Shares must be held indefinitely unless a subsequent disposition
thereof is registered under the Securities Act or is exempt from such
registration, (iii) the Preferred Shares and the Conversion Shares will bear a
legend to such effect and (iv) the Company will make a notation on its transfer
books to such effect, and
(f) if it sells any Conversion Shares pursuant to Rule 144A
promulgated under the Securities Act, it will take all necessary steps in order
to perfect the exemption from registration provided thereby, including (i)
obtaining on behalf of the Company information to enable the Company to
establish a reasonable belief that the purchaser is a qualified institutional
buyer and (ii) advising such purchaser that Rule 144A is being relied upon with
respect to such resale.
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<PAGE>
Article IV. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS
The obligation of each Purchaser to purchase and pay for the Preferred
Shares being purchased by it on the Closing Date is, at its option, subject to
the satisfaction, on or before the Closing Date, of the following conditions:
(a) Opinion of Company's Counsel. The Purchasers shall have received
---------- -----------------
from Foley, Hoag & Eliot LLP, counsel for the Company, an opinion dated the
Closing Date, in form and scope satisfactory to the Purchasers and their
counsel, substantially to the effect that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The
Company is duly qualified to transact business as a foreign corporation and is
in good standing in Massachusetts and California. The Company has the corporate
power and authority to own and hold its properties and to carry on its business
as currently conducted. The Company has the corporate power and authority to
execute, deliver and perform this Agreement, the Registration Rights Agreement
and the Stockholders Agreement, to issue, sell and deliver the Preferred Shares
and, upon conversion thereof, to issue and deliver the Conversion Shares.
(ii) This Agreement, the Registration Rights Agreement, the
Stockholders Agreement and the Warrant Agreement have been duly authorized,
executed and delivered by the Company and constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with their
respective terms (subject, as to enforcement of remedies, to the discretion of
courts in awarding equitable relief and to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting the rights of
creditors generally), except that such counsel need not express any opinion as
to the validity or enforceability of the indemnification and contribution
provisions of the Registration Rights Agreement.
(iii) The execution and delivery by the Company of this
Agreement, the Registration Rights Agreement and the Stockholders Agreement, the
performance by the Company of its obligations hereunder and thereunder, the
issuance, sale and delivery of the Preferred Shares and, upon conversion
thereof, the issuance and delivery of the Conversion Shares, will not violate
any provision of law, the Charter or By-laws, as amended, of the Company, any
order of any court or other agency of government or any indenture, agreement or
other instrument known to such counsel to which the Company, or any of its
properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge, restriction, claim or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company. In rendering the
foregoing opinion, such counsel may assume full disclosure to the Purchasers of
all material facts and, with respect to performance by the Company of its
obligations under the Registration Rights Agreement may assume compliance by the
Company at such time with the registration requirements of the Securities Act
and with applicable state securities laws and may disclaim any opinion as to the
15
<PAGE>
validity or enforceability of the indemnification and contribution provisions of
the Registration Rights Agreement.
(iv) The authorized capital stock of the Company consists of:
10,000,000 shares of Series A Common Stock, par value $0.001;
64,031 shares of Series B Common Stock, par value $0.001;
81,366 shares of Series C Common Stock, par value $0.001;
59,250 shares of Series D Common Stock, par value $0.001;
250,050 shares of Series E Common Stock, par value $0.001 (together the
foregoing classes of Common Stock are referred to herein as the "Common
Stock");
562,500 shares of Series A Convertible Preferred Stock, par value $.01 per
share;
344,043 shares of Series B Convertible Preferred Stock, par value $.01 per
share;
41,544 shares of Series C Convertible Preferred Stock par value $.01 per
share;
891,314 shares of Series D Convertible Preferred Stock par value $.01 per
share;
457,980 shares of Series E-1 Convertible Preferred Stock, par value $.01
per share; and
1,346,650 shares of Series E Convertible Preferred Stock, par value $.01
per share of an undesignated subseries.
Immediately prior to the Closing, the following stock of the Company will be
issued, outstanding, fully paid and nonassessable:
3,834,129 shares of Series A Common Stock, par value $0.001;
61,687 shares of Series B Common Stock, par value $0.001;
65,522 shares of Series C Common Stock, par value $0.001,
57,984 shares of Series D Common Stock, par value $0.001;
146,321 shares of Series E Common Stock, par value $0.001;
562,500 shares of Series A Convertible Preferred Stock, par value $.01 per
share;
344,043 shares of Series B Convertible Preferred Stock, par value $.01 per
share;
41,544 shares of Series C Convertible Preferred Stock par value $.01 per
share; and
709,970 shares of Series D Convertible Preferred Stock par value $.01 per
share.
Immediately prior to the Closing, the stockholders of record and holders of
record of subscriptions, warrants, options, convertible securities, and other
rights (contingent or other) to purchase or otherwise acquire equity securities
of the Company, and the number of shares of Common Stock or Preferred Stock and
the number of such subscriptions, warrants, options, convertible securities, and
other such rights held by each, will be as set forth in Schedule IV. For
purposes of the foregoing opinion, counsel may rely on the records in its
possession. The designations, powers, preferences, rights, qualifications,
limitations and restrictions in respect of each class or series of authorized
capital stock of the Company are as set forth in the Charter and all such
designations, powers, preferences, rights, qualifications, limitations and
restrictions are valid, binding and enforceable and in accordance with all
applicable laws (subject, as to enforcement, to the discretion of courts in
awarding equitable relief and to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting the rights of
16
<PAGE>
creditors generally). Except as set forth in Schedule IV, to the knowledge of
such counsel, immediately prior to the Closing no subscription, warrant, option,
convertible security, or other right (contingent or other) to purchase or
acquire equity securities of the Company shall be authorized or outstanding and
there will be no commitment by the Company to issue shares, subscriptions,
warrants, options, convertible securities, or other such rights or to distribute
to holders of any of its equity securities any evidence of indebtedness or
asset. Except as set forth in Schedule IV or as provided for in the Charter, to
the knowledge of such counsel the Company has no obligation (contingent or
other) to purchase, redeem or otherwise acquire any of its equity securities or
any interest therein or to pay any dividend or make any other distribution in
respect thereof.
(v) The Preferred Shares and the Conversion Shares have been duly
authorized. The issuance, sale and delivery of the Preferred Shares and the
issuance and delivery of the Conversion Shares upon conversion of the Preferred
Shares have been duly authorized by all required corporate action; the Preferred
Shares have been validly issued, are fully paid and nonassessable and, to the
knowledge of such counsel, are free and clear of all liens, charges,
restrictions, claims and encumbrances imposed by or through the Company except
as set forth in the Registration Rights Agreement; and the Conversion Shares
have been duly reserved for issuance upon conversion of the Preferred Shares
and, when so issued, will be validly issued, fully paid and nonassessable and,
to the knowledge of such counsel, will be free and clear of all liens, charges,
restrictions, claims and encumbrances imposed by or through the Company except
as set forth in the Registration Rights Agreement. Neither the issuance, sale or
delivery of the Preferred Shares nor the issuance or delivery of the Conversion
Shares is subject to any preemptive right of stockholders of the Company arising
under law or the Charter or By-laws of the Company, each as amended, which has
not been waived, or, to the knowledge of such counsel, to any contractual right
of first refusal or other right in favor of any person, other than the rights
set forth in the Thomson Agreement.
(vi) Assuming that the Company's Board of Directors has duly
authorized the Company to file a Certificate of Designation setting the price of
the Warrant Shares each time such shares are to be issued, and that such a
Certificate of Designation has been filed, if issued against payment therefor in
accordance with the Warrant Agreement, such Warrant Shares will be validly
issued, fully paid and nonassessable, and, to the knowledge of such counsel,
will be free and clear of all liens, charges, restrictions, claims and
encumbrances imposed by or through the Company except as set forth in the
Registration Rights Agreement. The issuance, sale or delivery of the such shares
is not subject to any preemptive right of stockholders of the Company arising
under law or the Charter or By-laws of the Company, each as amended, which has
not been waived, or, to the knowledge of such counsel, to any contractual right
of first refusal or other right in favor of any person, other than the rights
set forth in the Thomson Agreement.
(vii) To the knowledge of such counsel there is no (A) action, suit
proceeding or investigation pending or threatened against the Company, at law or
in equity, or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, (B) arbitration proceeding relating to the Company pending under
collective bargaining agreements or (C) governmental inquiry pending
17
<PAGE>
or threatened against the Company (including, without limitation, any inquiry as
to the clarification of the Company to hold or receive any license or permit).
To the knowledge of such counsel, the Company is not in default with respect to
any order, writ, injunction or decree known to such counsel of any court or of
any Federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign.
(viii) Assuming the accuracy of the representations and
warranties of the Purchasers set forth in Article III, no registration or filing
with, and no consent or approval of, or other action by any Federal, state or
other governmental agency or instrumentality is or will be necessary under
current law for the valid execution, delivery and performance by the Company of
this Agreement, the issuance, sale and delivery of the Preferred Shares or, upon
conversion thereof, the issuance and delivery of the Conversion Shares, other
than filings pursuant to state securities laws (all of which filings, other than
those which are required to be made after the Closing, have been made by the
Company). In rendering the foregoing opinion with respect to performance by the
Company of its obligations under the Registration Rights Agreement, such counsel
may assume compliance by the Company at such time with the registration
requirements of the Securities Act and with applicable state securities laws and
may disclaim any opinion as to the validity of enforceability of the
indemnification and contribution provision of the Registration Rights Agreement.
(ix) All of the outstanding shares of capital stock have been
issued in compliance with the registration requirements of the Securities Act
and all applicable state securities laws.
(b) Representations and Warranties to be True and Correct. The
-----------------------------------------------------
representations and warranties contained in Article II shall be true, complete
and correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date, and the
President and Treasurer of the Company shall have certified to such effect to
the Purchasers in writing.
(c) Performance. The Company shall have performed and complied with
-----------
all agreements contained herein required to be performed or complied with by it
prior to or at the Closing Date, and the President and Treasurer of the Company
shall have certified to the Purchasers in writing to such effect and to the
further effect that all of the conditions set forth in this Article IV have been
satisfied.
(d) All Proceedings to be Satisfactory. All corporate and other
----------------------------------
proceedings to be taken by the Company in connection with the transactions
contemplated hereby and all documents incident thereto shall be satisfactory in
form and substance to the Purchasers and their counsel, and the Purchasers and
their counsel shall have received all such counterpart originals or certified or
other copies of such documents as they reasonably may request.
(e) Documents. The Purchasers and their counsel shall have received
---------
copies of the following documents:
18
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(i) the Charter, certified as of a recent date by the Secretary of
State of the State of Delaware, and (B) a certificate of said Secretary dated as
of a recent date as to the due incorporation and good standing of the Company,
the payment of all excise taxes by the Company and listing all documents of the
Company on file with said Secretary;
(ii) a certificate of the Secretary or an Assistant Secretary of the
Company dated the Closing Date and certifying: (A) that attached thereto is a
true and complete copy of the By-laws of the Company as in effect on the date of
such certification; (B) that attached thereto is a true and complete copy of all
resolutions adopted by the Board of Directors or the stockholders of the Company
authorizing the execution, delivery and performance of this Agreement, the
Registration Rights Agreement and the Stockholders Agreement, the issuance, sale
and delivery of the Preferred Shares and the reservation, issuance and delivery
of the Conversion Shares, and that all such resolutions are in full force and
effect and are all the resolutions adopted in connection with the transactions
contemplated by this Agreement, the Registration Rights Agreement and the
Stockholders Agreement; (C) that the Charter has not been amended since the date
of the last amendment referred to in the certificate delivered pursuant to
clause (i)(B) above; and (D) to the incumbency and specimen signature of each
officer of the Company executing this Agreement, the Registration Rights
Agreement or the Stockholders Agreement, the stock certificates representing the
Preferred Shares and any certificate, or instrument furnished pursuant hereto,
and a certification by another officer of the Company as to the incumbency and
signature of the officer signing the certificate referred to in this clause
(ii); and
(iii) such additional supporting documents and other information with
respect to the operations and affairs of the Company as the Purchasers or their
counsel reasonably may request
(f) Registration Rights Agreement. The Company shall have executed and
-----------------------------
delivered the Registration Rights Agreement.
(g) Stockholders Agreement. The Stockholders Agreement shall have been
----------------------
executed and delivered by the Company and the parties thereto as indicated in
the form of agreement attached hereto as Exhibit B.
(h) Charter. The Charter shall read in its entirety as set forth in
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Exhibit C.
All such documents shall be satisfactory in form and substance to the Purchasers
and their counsel.
Article V. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY
The obligation of the Company to sell the Preferred Shares to each
Purchaser on the Closing Date is, at its option, subject to the satisfaction, on
or before the Closing Date, of the following conditions:
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(a) Representations and Warranties to be True and Correct. The
-----------------------------------------------------
representations and warranties of such Purchaser contained in Article III shall
be true, complete and correct on and as of the Closing Date with the same effect
as though such representations and warranties had been made on and as of such
date.
(b) Payment of Purchase Price. The Purchaser shall have delivered the
-------------------------
Aggregate Price for the Preferred Shares in accordance with Section 1.2.
(c) Charter Amendment. The Charter in the form attached as Exhibit C
----------------- ---------
shall have been adopted by the Company and approved by its Directors and
shareholders, and the Charter shall have been duly filed with the Secretary of
State of the State of Delaware and have become legally effective.
(d) Qualification. All authorizations, approvals, permits, if any, of
-------------
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance of the Preferred
Shares pursuant to this Agreement shall have been duly obtained and effective as
of the Closing Date.
(e) With respect only to the Company's obligation to issue and sell
any Preferred Shares to AOL and 12,845 Preferred Shares to Thomson, the Company
and AOL shall have entered into an Interactive Services Agreement relating to
the carriage or promotion of Company-provided content by AOL (the "Interactive
Services Agreement").
(f) With respect only to the obligation of the Company to sell 12,845
of the Preferred Shares to Thomson on the Closing Date, AOL shall have purchased
and paid for 93,168 Preferred Shares on the Closing Date.
Article VI. COVENANTS OF THE COMPANY
The Company covenants and agrees with each of the Purchasers that:
Section 6.01 Financial Statements. Reports. Etc. The Company shall furnish
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to each Purchaser under this Agreement:
(a) within one hundred twenty (120) days after the end of each fiscal
year of the Company a consolidated balance sheet of the Company and its
subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, stockholders' equity and cash flows for the fiscal year
then ended, prepared in accordance with generally accepted accounting principles
and certified by a firm of independent public accountants of recognized national
standing selected by the Board of Directors of the Company;
(b) within thirty (30) days after the end of each month in each
fiscal year a consolidated balance sheet of the Company and its subsidiaries and
the related consolidated statements of income, stockholders' equity and cash
flows, unaudited but prepared in accordance with generally accepted accounting
principles and certified by the Chief Financial Officer of the Company, such
consolidated balance sheet to be as of the end of such month and such
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consolidated statements of income, stockholders' equity and cash flows to be for
such month and for the period from the beginning of the fiscal year to the end
of such month, in each case with comparative statements for the prior fiscal
year;
(c) at the time of delivery of each annual financial statement
pursuant to 6.01(a), a certificate executed by the Chief Financial Officer on
behalf of the Company stating that such officer has caused this Agreement and
the Preferred Stock to be reviewed and has no knowledge of any default by the
Company in the performance or observance of any of the provisions of this
Agreement or the Preferred Stock or, if such officer has such knowledge,
specifying such default and the nature thereof,
(d) thirty (30) days prior to the start of each fiscal year, or such
later date approved by the Board of Directors, consolidated capital and
operating expense budgets, cash flow projections and income and loss projections
for the Company and its subsidiaries in respect of such fiscal year, itemized in
reasonable detail and prepared on a monthly basis, and, promptly after
preparation, any revisions to any of the foregoing;
(e) promptly following receipt by the Company, each audit response
letter, accountant's management letter and other written report submitted to the
Company by its independent public accountants in connection with an annual or
interim audit of the books of the Company or any of its subsidiaries; and
(f) promptly after the commencement thereof, notice of all actions,
suits, claims, proceedings, investigations and inquiries of the type described
in Section 2.7 that could materially adversely affect the Company or any of its
subsidiaries.
Section 6.02 Right of Participation. The Company shall, prior to any
----------------------
proposed issuance by the Company of any of its securities (other than debt
securities with no equity feature), offer to AOL under this Agreement by written
notice the right, for a period of twenty (20) days, to purchase for cash at an
amount equal to the price or other consideration for which such securities are
to be issued, a number of such securities so that, after giving effect to such
issuance (and the conversion, exercise and exchange into or for (whether
directly or indirectly) shares of Common Stock of all such securities that are
so convertible, exercisable or exchangeable), AOL will continue to maintain its
same proportionate equity ownership in the Company as of the date of such notice
(treating AOL, for the purpose of such computation, as the holder of the number
of shares of Common Stock which would be issuable to AOL upon conversion,
exercise and exchange of all securities (including but not limited to the
Preferred Shares) held by AOL on the date such offer is made, that are
convertible, exercisable or exchangeable into or for (whether directly or
indirectly) shares of Common Stock and assuming the like conversion, exercise
and exchange of all such other securities held by other persons), but excluding
shares of Common Stock issuable to AOL upon its exercise of any right to
purchase Common Stock pursuant to the Warrant issued to AOL by the Company in
connection with the Interactive Services Agreement; provided, however, that the
participation rights of AOL pursuant to this Section 6.2 shall not apply to
securities issued (A) upon conversion of any of the Preferred Shares or Common
Shares, (B) as a stock dividend or upon any subdivision of shares of Common
Stock, provided that the securities issued pursuant to such stock dividend or
subdivision are limited to additional shares
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of Common Stock, (C) pursuant to subscriptions, warrants, options, convertible
securities, or other rights which are listed in Schedule IV as being outstanding
on the date of this Agreement, (D) solely in consideration for the acquisition
(whether by merger or otherwise) by the Company or any of its subsidiaries of
all or substantially all of the stock or assets of any other entity, (E)
pursuant to a firm commitment public offering, (F) pursuant to the exercise of
options to purchase Common Stock, or as direct stock grants, not to exceed
twenty-five percent (25%) of the Company's outstanding shares of capital stock
on a fully diluted basis, that were granted by the Board of Directors and
approved by the Compensation Committee (as defined in Section 6.19) under any
Company stock option plan to directors, officers, employees or consultants of
the Company in connection with their service to the Company (the shares exempted
by this clause (F) being hereinafter referred to as the "Reserved Employee
Shares"), and (G) pursuant to the exercise by Thomson of its preemptive rights
to purchase securities described in Subsections (D) or (F) above under the
Thomson Agreement. The Company's written notice to AOL shall describe the
securities proposed to be issued by the Company and specify the number, price
and payment terms. AOL may accept the Company's offer as to the full number of
securities offered to it or any lesser number, by written notice thereof given
by it to the Company prior to the expiration of the aforesaid twenty (20) day
period, in which event the Company shall promptly sell and AOL shall buy, upon
the terms specified, the number of securities agreed to be purchased by AOL. The
Company shall be free at any time prior to one hundred twenty (120) days after
the date of its notice of offer to AOL, to offer and sell to any third party or
parties the remainder of such securities proposed to be issued by the Company
(including but not limited to the securities not agreed by AOL to be purchased
by it), at a price and on payment terms no less favorable to the Company than
those specified in such notice of offer to AOL. However, if such third party
sale or sales are not consummated within such one hundred twenty (120) day
period, the Company shall not sell such securities as shall not have been
purchased within such period without again complying with this Section 6.2.
Section 6.03 Reserve for Conversion Shares. The Company shall at all times
-----------------------------
reserve and keep available out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Preferred Shares and
otherwise complying with the terms of this Agreement, such number of its duly
authorized shares of Common Stock as shall be sufficient to effect the
conversion of the Preferred Shares from time to time outstanding or otherwise to
comply with the terms of this Agreement. If at any time the number of authorized
but unissued shares of Common Stock shall not be sufficient to effect the
conversion of the Preferred Shares or otherwise to comply with the terms of this
Agreement, the Company will forthwith use its best efforts to take such
corporate action as may be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes. The Company will obtain any authorization, consent, approval or other
action by or make any filing with any court or administrative body that may be
required under applicable state securities laws in connection with the issuance
of shares of Common Stock upon conversion of the Preferred Shares.
Section 6.04 Corporate Existence. The Company shall maintain and, except as
-------------------
otherwise permitted by Section 6.14 cause each of its subsidiaries to maintain,
their respective corporate existence, rights and franchises in full force and
effect.
22
<PAGE>
Section 6.05 Properties, Business, Insurance. The Company shall maintain
-------------------------------
and cause each of its subsidiaries to maintain as to their respective properties
and business, with financially sound and reputable insurers, insurance against
such casualties and contingencies and of such types and in such amounts as is
customary for companies similarly situated, which insurance shall be deemed by
the Company to be sufficient. The Company shall not cause or permit any
assignment or change in beneficiary and shall not borrow against such policy.
Section 6.06 Inspection. The Company shall permit and cause each of its
----------
subsidiaries to permit each Purchaser and such persons as it may designate, such
persons to be reasonably acceptable to the Company, at such Purchaser's expense,
at reasonable times and upon reasonable notice, to visit and inspect any of the
properties of the Company and its subsidiaries, examine their books and take
copies and extracts therefrom, discuss the affairs, finances and accounts of the
Company and its subsidiaries with their officers, employees and public
accountants (and the Company hereby authorizes said accountants to discuss with
such Purchaser and such designees such affairs, finances and accounts).
Section 6.07 Restrictive Agreements Prohibited. Neither the Company nor any
---------------------------------
of its subsidiaries shall become a party to any agreement which by its terms
restricts the Company's performance of this Agreement, the Registration Rights
Agreement, the Stockholders Agreement or the Charter.
Section 6.08 Transactions with Affiliates. Except for transactions
----------------------------
contemplated by this Agreement (including entering into the Interactive Services
Agreement and a Warrant Agreement in connection therewith) or as otherwise
approved by the Compensation Committee (as defined below), neither the Company
nor any of its subsidiaries shall enter into any transaction with any director,
officer, employee or holder of more than 5% of the outstanding capital stock of
any class or series of capital stock of the Company or any of its subsidiaries,
member of the family of any such person, or any corporation, partnership, trust
or other entity in which any such person, or member of the family of any such
person, is a director, officer, trustee, partner or holder of more than 5% of
the outstanding capital stock thereof (an "Affiliate"), except for transactions
on customary terms related to such Affiliate's employment (which transactions
are subject to Section 6.19 hereof). Notwithstanding the foregoing, nothing
herein shall be deemed to restrict the Company from providing to an Affiliate
the services the Company regularly provides to its customers on the same terms
regularly made available to such customers.
Section 6.09 Expenses of Directors. The Company shall promptly reimburse in
---------------------
full each director of the Company who is not an employee of the Company for all
of his reasonable out-of-pocket expenses incurred in attending each meeting of
the Board of Directors of the Company or any Committee thereof.
Section 6.10 Use of Proceeds. The Company shall use the proceeds from the
---------------
sale of the Preferred Shares for general business purposes and for payments
under the Interactive Services Agreement.
23
<PAGE>
Section 6.11 Board of Directors Meetings. The Company shall use its best
---------------------------
efforts to ensure that meetings of its Board of Directors are held at least four
times each year and at least once each quarter. The Company shall permit AOL, so
long as AOL is not represented on the Board of Directors of the Company, to
attend meetings of the Board of Directors, except where such attendance could
jeopardize rights of the Company, such as the attorney client privilege. The
Company shall cause each of its subsidiaries to permit AOL, so long as AOL is
not represented on the Board of Directors of such subsidiary, to attend meetings
of the Board of Directors of such subsidiary, except where such attendance could
jeopardize rights of the Company, such as the attorney client privilege.
Section 6.12 By-laws. The Company shall at all times cause its By-laws to
-------
provide that, (a) unless otherwise required by the laws of the State of
Delaware, (i) any two directors or (ii) any holder or holders of at least 25% of
the outstanding shares of Series D Convertible Preferred Stock, shall have the
right to call a meeting of the Board of Directors or stockholders and (b) the
number of directors fixed in accordance therewith shall in no event conflict
with any of the terms or provisions of the Preferred Stock as set forth in the
Charter. The Company shall at all times maintain provisions in its By-laws
and/or Charter indemnifying all directors against liability and absolving all
directors from liability to the Company and its stockholders to the maximum
extent permitted under the laws of the State of Delaware.
Section 6.13 Employee Non-Disclosure, Non-Competition and Developments
---------------------------------------------------------
Agreements. The Company shall use its reasonable best efforts to cause each of
- ----------
the future officers of the Company, each key employee and each other employee
who has or will have access to confidential information of the Company and to
cause or to use its best efforts to cause its subsidiaries to cause each of the
future officers of the Company or its subsidiaries, each key employee and each
other employee employed by the Company or its subsidiaries who will have access
to confidential information of the Company to execute a Non-Disclosure, Non-
Competition and Developments Agreement in the form of Exhibit D, upon each such
---------
person's employment by the Company or any of its subsidiaries.
Section 6.14 Subsidiaries. The Company shall not permit any subsidiary to
------------
consolidate or merge into or with or sell or transfer all or substantially all
its assets, except that any subsidiary may (i) consolidate or merge into or with
or sell or transfer assets to any other subsidiary, (ii) merge into or sell or
transfer assets to the Company or (iii) merge into or with another company
provided that the Company owns more than 50% of the voting stock of the
subsidiary or the surviving corporation, as the case may be, following such
merger. The Company shall not sell or otherwise transfer any shares of capital
stock of any subsidiary, except to the Company or another subsidiary, or permit
any subsidiary to issue, sell or otherwise transfer any shares of its capital
stock or the capital stock of any subsidiary, except to the Company or another
subsidiary. The Company shall not permit any subsidiary to purchase or set aside
any sums for the purchase of, or pay any dividend or make any distribution on,
any shares of its stock, except for dividends or other distributions payable to
the Company or another subsidiary.
24
<PAGE>
Section 6.15 Compliance with Laws. The Company shall comply, and cause each
--------------------
subsidiary to comply, with all applicable laws, rules, regulations and orders,
noncompliance with which could materially adversely affect its business or
condition, financial or otherwise.
Section 6.16 Keeping of Records of Account. The Company shall keep, and
-----------------------------
cause each subsidiary to keep, adequate records and books of account, in which
complete entries will be made in accordance with generally accepted accounting
principles consistently applied, reflecting all financial transactions of the
Company and such subsidiary, and in which, for each fiscal year, all proper
reserves for depreciation, depletion, obsolescence, amortization, taxes, bad
debts and other purposes in connection with its business shall be made.
Section 6.17 U.S. Real Property Interest. The Company shall provide prompt
---------------------------
written notice to each Purchaser following any "determination date" (as defined
in Treasury Regulation Section 1.897-2(c)(i)) on which the Company becomes a
United States real property holding corporation. In addition, upon a written
request by any Purchaser, the Company shall provide such Purchaser with a
written statement informing the Purchaser whether such Purchaser's interest in
the Company constitutes a U.S. real property interest. The Company's
determination shall comply with the requirements of Treasury Regulation Section
1.897-2(h)(1) or any successor regulation, and the Company shall provide timely
notice to the Internal Revenue Service, in accordance with and to the extent
required by Treasury Regulation Section 1.897-2(h)(2) or any successor
regulation, that such statement has been made. The Company's written statement
to any Purchaser shall be delivered to such Purchaser within ten (10) days of
such Purchases written request therefor. The Company's obligation to furnish a
written statement pursuant to this Section 6.17 shall continue notwithstanding
the fact that a class of the Company's stock may be regularly traded on an
established securities market.
Section 6.18 Rule 144A Information. The Company shall, at all times during
---------------------
which it is neither subject to the reporting requirements of Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), nor
exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act,
provide in writing, upon the written request of any Purchaser and a prospective
buyer who is a "qualified institutional buyer" within the meaning of Rule
144A(a)(1) of Preferred Shares or Conversion Shares from any Purchaser, all
information required by Rule 144A(d)(4)(i) of the General Regulations
promulgated by the Commission under the Securities Act ("Rule 144A
Information"). The Company also shall, upon the written request of any
Purchaser, cooperate with and assist such Purchaser or any member of the
National Association of Securities Dealers, Inc. PORTAL system in applying to
designate and thereafter maintain the eligibility of the Preferred Shares or
Conversion Shares, as the case may be, for trading through PORTAL. The Company's
obligations under this Section 6.18 shall at all times be contingent upon the
relevant Purchasers obtaining from the prospective buyer of Preferred Shares or
Conversion Shares a written agreement to take all reasonable precautions to
safeguard the Rule 144A Information from disclosure to anyone other than a
person who will assist such buyer in evaluating the purchase of any Preferred
Shares or Conversion Shares.
Section 6.19 Compensation. No change in compensation shall be paid to any
------------
officer or key employee of the Company nor shall any stock option or share of
the Company's capital stock
25
<PAGE>
be issued to any employee of the Company without the approval of a majority
of the members of the Company's Compensation Committee.
Section 6.20 Confidentiality. The Company's obligations under Sections 6.1,
---------------
6.6, 6.11 and 6.18 shall at all times be contingent upon each Purchaser's
agreement, and each Purchaser hereby agrees, to take all reasonable precautions
to safeguard the confidentiality of the information received by or disclosed to
such Purchaser by the Company in the fulfillment of the Company's obligations
under such Sections and to refrain from disclosure of such information to anyone
other than a person who will assist such Purchaser in evaluating the Company or
to such Purchaser's accountants, attorneys and other professional advisors and,
in the case of Section 6.1, to its equity investors (but only to the extent
reasonably necessary to meet such Purchaser's reporting obligations).
Notwithstanding the foregoing, a Purchaser shall be authorized to disclose
confidential information of the Company pursuant to the requirement or request
of a governmental body with jurisdiction, to the extent such disclosure is
required by a valid and applicable statute, rule, regulation, order, decree,
judgment or similar act, and notice is given by such Purchaser to the Company of
any such requirement or request, which notice is adequate to enable the Company
to seasonably seek an appropriate protective order or exemption from such
requirement or request.
Section 6.21 Qualification as a Qualified Small Business. The Company
-------------------------------------------
covenants and agrees to comply with the reporting and recordkeeping
requirements, if any, of Section 1202 of the Code and any regulations
promulgated thereunder and to execute and deliver to the Purchasers and the
Internal Revenue Service, from time to time, such forms, documents, schedules
and other instruments as may be reasonably requested thereby to demonstrate,
where possible, that the Preferred Shares and the Conversion Shares qualify as a
"qualified small business stock," as defined in Section 1202(c) of the Code.
26
<PAGE>
Section 6.22 Right of First Refusal upon Sale of Company.
-------------------------------------------
(a) Before the Company accepts a bona fide offer from a third party
(the "Proposed Acquirer") to acquire greater than forty percent (40%) of the
fully diluted capital stock of the Company (the "Offered Shares"), whether by
sale of stock, merger, sale of substantially all of its assets or otherwise, the
Company shall transmit such bona fide offer (the "Offer Notice") to AOL who
shall have the right, as described herein, to acquire the Offered Shares on
terms and conditions, including price, not less favorable to AOL than those
applying to the Proposed Acquirer. The Offer Notice shall disclose the identity
of the Proposed Acquirer, the Offered Shares proposed to be sold, the terms and
conditions, including price, of the proposed sale, and any other material facts
relating to the proposed sale. If the consideration is readily marketable, the
fair market value thereof shall be determined on the date of the Offer,
otherwise, the value shall be determined by mutual agreement of the Company and
AOL, and, if no agreement is reached, then the value shall be determined by a
third party mutually agreeable to the Company and AOL. Notwithstanding the
foregoing, the rights described in this Section 7.22 shall not apply to any
transaction in which the Company will acquire another business entity, by merger
or otherwise, and in which the stockholders of the Company immediately prior to
the acquisition will hold a majority of the voting securities of the resulting
entity immediately after the acquisition.
(b) If AOL elects to purchase the Offered Shares, AOL shall
communicate such election in writing ("Written Election") to the Company within
thirty (30) days of the date of the Offer Notice. The Written Election shall,
when taken in conjunction with the Offer Notice, be deemed to constitute a
valid, legally binding and enforceable agreement for the sale and purchase of
such Offered Shares. The closing of the sale of the Offered Shares to AOL
pursuant to this Section 6.23 shall be made at the offices of the Company on the
thirtieth (30th) day following receipt by the Company of the Written Election
(or if such 30th day is not a business day, then on the next succeeding business
day).
(c) If the Company has not received a Written Election from AOL
within thirty (30) days of the date of the Offer Notice, or if at any time
during that period AOL indicates in writing its decision not to purchase the
Offered Shares, the Company may accept the offer of the Proposed Acquirer. Any
such sale shall be to the Proposed Acquirer at not less than the price, and upon
other terms and conditions, if any, not more favorable to the Proposed Acquirer
than those specified in the Offer Notice.
(d) The rights granted to AOL hereunder are subject to the rights, if
any, of the other Major Purchasers under Section 6.2 hereof, and of Thomson
under Section 3.01 of the Thomson Agreement.
Section 6.23 Right of First Offer.
--------------------
(a) Notification of Offer. Except as otherwise provided in the
---------------------
following sentence, if the Company wishes to sell, exchange, convey, convert,
transfer or otherwise dispose of ("Transfer") greater than forty percent (40%)
of the fully diluted capital stock of the Company, whether by sale of stock,
merger, sale of substantially all of its assets or otherwise, the
27
<PAGE>
Company agrees that it will advise AOL by written notice (the "Notification") of
------------
such offer, specifying (i) the number of shares of capital stock proposed to be
Transferred (the "Offered Shares"), (ii) a price per share which shall be the
------- ------
minimum price at which the Company proposes to effect the Transfer (the "Minimum
-------
Price"), and (iii) all other material terms of the proposed Transfer.
- -----
Notwithstanding the foregoing, the rights described in this Section 6.23 shall
not apply to any transaction in which the Company will acquire another business
entity, by merger or otherwise, and in which the stockholders of the Company
immediately prior to the acquisition will hold a majority of the voting
securities of the resulting entity immediately after the acquisition.
(b) Terms of Offer. The Notification shall be deemed to be an offer
--------------
(the "Offer") to Transfer all (but not less than all) of the Offered Shares to
AOL at the Minimum Price and on the other terms and conditions of the proposed
Transfer. In the event that all or any part of the consideration is
consideration other than cash or cash equivalents, the Minimum Price shall mean
the Fair Market Value of such consideration (as hereinafter defined). AOL shall
accept or reject the Offer as soon as practicable after receipt of the
Notification, and in any case by written notice within thirty (30) days after
receipt of the Notification, or within ten (10) days after the determination of
Fair Market Value if later. Failure by AOL to give written notice of rejection
or acceptance within such time shall be deemed a rejection in accordance with
the terms of Subsection (d) below.
(c) Acceptance of Offer. In the event AOL elects to accept the Offer,
-------------------
it shall communicate such election to the Company by written notice.
Communication of such election (the "Acceptance") shall, when taken in
conjunction with the Notification, constitute a valid and legally binding
purchase and sale agreement. Payment in cash (or on such other terms and
conditions as shall have been specified in the Notification) shall be made at a
closing (the "Closing") within thirty (30) days after the delivery of such
Acceptance. If such Closing does not occur within thirty (30) days after the
delivery of such Acceptance, the Acceptance shall be treated as a rejection in
accordance with the terms of Subsection (d) below.
(d) Rejection of Offer. In the event AOL rejects the Offer, it shall
------------------
communicate such election to the Company by written notice. Immediately
following such rejection (including a rejection for failure to accept the offer
as specified in (b) and (c) above), and for a period of one-hundred eighty (180)
days thereafter, the Company shall be free to offer and Transfer all of the
Offered Shares, at a price equal to or greater than the Minimum Price and on
other terms and conditions no less favorable than those contained in the Offer.
(e) Fair Market Value. "Fair Market Value," as used in this Section
-----------------
6.23 means, with respect to consideration other than cash or cash equivalents,
if the consideration is readily marketable, the fair market value thereof as
determined on the date of the Offer, otherwise, the value as determined by
mutual agreement of the Company and AOL, and, if no agreement is reached, then
the value as determined by a third party mutually agreeable to the Company and
AOL.
28
<PAGE>
(f) The rights granted to AOL hereunder are subject to the rights, if
any, of the Major Purchasers pursuant to the Series D Purchase Agreement, and of
Thomson under Section 3.01 of the Thomson Agreement.
Section 6.24 Stock Option Plan. The Company shall not increase the number
-----------------
of shares of Common Stock under all of its stock option plans covering its
employees, Directors and consultants, in excess of fifteen percent (15%) of the
outstanding capital stock of the Company on a fully diluted basis without the
written approval of the holders of a majority of the outstanding shares of
Preferred Stock voting as a single class.
Section 6.25 Termination of Covenants. All of the covenants set forth in
------------------------
this Agreement shall survive the termination of this Agreement, provided,
however, that all of the covenants set forth in this Article VI, except for
Sections 6.18 and 6.21, shall terminate and be of no further force or effect
upon the completion of a firm commitment underwritten public offering of the
Company's securities causing a mandatory conversion of all the Preferred Shares
into Common Stock pursuant to the terms of the Company's Charter.
Article VII. MISCELLANEOUS
Section 7.01 Expenses. Each party hereto will pay its own expenses in
--------
connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated.
Section 7.02 Survival. All representations and warranties made herein or in
--------
the Registration Rights Agreement or any certificate or instrument delivered to
the Purchasers pursuant to or in connection with this Agreement, the
Registration Rights Agreement or the Stockholders Agreement, shall survive for a
period of one year the execution and delivery of this Agreement, the
Registration Rights Agreement and the Stockholders Agreement and the issuance,
sale and delivery of the Preferred Shares.
Section 7.03 Brokerage. Each party hereto will indemnify and hold harmless
---------
the others against and in respect of any claim for brokerage or other
commissions relative to this Agreement or to the transactions contemplated
hereby, based in any way on agreements, arrangements or understandings made or
claimed to have been made by such party with any third party.
Section 7.04 Parties in Interest. All representations, covenants and
-------------------
agreements contained in this Agreement by or between behalf of any of the
parties hereto shall bind and inure to the benefit of the respective successors
and assigns of the parties hereto whether so expressed or not. Without limiting
the generality of the foregoing, all covenants and agreements benefitting the
Purchasers shall inure to the benefit of any and all subsequent holders from
time to time of at least 25% of a Purchaser's (or its affiliate's) Preferred
Shares or Conversion Shares. Notwithstanding the foregoing, AOL may assign all
of its rights under this Agreement to a subsidiary in which it owns a majority
of the voting securities after its purchase of Preferred Shares.
29
<PAGE>
Section 7.05 Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing and shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or sent by
telecopier or telex, addressed as follows:
(a) if to the Company, at 200 Portland Street, Boston, MA 02114,
Attention: President, with a copy to John D. Patterson, Jr., Esq., Foley, Hoag &
Eliot LLP, One Post Office Square, Boston, Massachusetts 02109; and
(b) if to any Purchaser, at the address of such Purchaser set forth
in Schedule I or, in any such case, at such other address or addresses as shall
have been furnished in writing by such party to the others.
Section 7.06 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of The Commonwealth of Massachusetts,
without regard to principles of conflict of laws or choice of laws.
Section 7.07 Entire Agreement. This Agreement, including the Schedules and
----------------
Exhibits hereto, constitutes the sole and entire agreement of the parties with
respect to the subject matter hereof other than the Thomson Agreement the
Registration Rights Agreement and the Stockholders Agreement. All Schedules and
Exhibits hereto are hereby incorporated herein by reference.
Section 7.08 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 7.09 Amendments. This Agreement may not be amended or modified, and
----------
no provisions hereof may be waived, without the written consent of the Company
and the holders of at least two-thirds of the outstanding shares of Common Stock
issued or issuable upon conversion of the Preferred Shares.
Section 7.10 Severability. If any provision of this Agreement shall be
------------
declared void or unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
Section 7.11 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are for convenience only and are not to be Considered in construing or
interpreting any term or provision of this Agreement.
Section 7.12 Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
(a) "Benefit Arrangement" means each employment, severance or other
-------------------
similar contract, arrangement or policy (written or oral) and each plan or
arrangement (written or oral) providing for severance benefits, insurance
coverage (including any self-insured
30
<PAGE>
arrangements), workers' compensation, disability benefits, supplemental
unemployment benefits, vacation benefits, retirement benefits or for deferred
compensation, profit-sharing, bonuses, stock options, stock appreciation rights
or other forms of incentive compensation or post-retirement insurance,
compensation or benefits which (i) is not an Employee Plan and (ii) covers any
employee or former employee of the Company.
(b) "Employee Plan" means each "employee benefit plan," as such term
-------------
is defined in Section 3(3) of ERISA, that (A)(i) is subject to any provision of
ERISA and (ii) is maintained or contributed to by the Company, or (B)(i) is
subject to any provision of Title IV of ERISA and (ii) is maintained or
contributed to by any of the Company's ERISA Affiliates.
(c) "ERISA" means the Employment Retirement Income Security Act of
-----
1974, as amended.
(d) "ERISA Affiliate" of any entity means any other entity that,
---------------
together with such entity, would be treated as a single employer under Section
414 of the Code.
(e) "Person" shall mean an individual, corporation, trust,
------
partnership, joint venture, unincorporated organization, government agency or
any agency or political subdivision thereof, or other entity.
(f) "Subsidiary" shall mean, as to the Company, any corporation of
----------
which more than 50% of the outstanding stock having ordinary voting power to
elect a majority of the Board of Directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by the Company, or
by one or more of its subsidiaries, or by the Company and one or more of its
subsidiaries.
[The remainder of this page is left blank intentionally.]
31
<PAGE>
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Series E-l Convertible Preferred Stock Purchase Agreement of the day and year
first above written.
COMPANY:
-------
CCBN.COM, Inc.
By: /s/ [ILLEGIBLE]
----------------------------
Its: CEO
----------------------------
Date: 12/22/99
----------------------------
PURCHASERS:
----------
Thomson Information Services, Inc.
By: ____________________________
Its: ____________________________
Date: ____________________________
America Online, Inc.
By: ____________________________
Its: _____________________________
Date: _____________________________
32
<PAGE>
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Series E-1 Convertible Preferred Stock Purchase Agreement of the day and year
first above written.
COMPANY:
-------
CCBN.COM, Inc.
By: _____________________________
Its: _____________________________
Date: _____________________________
PURCHASERS:
----------
Thomson Information Services, Inc.
By: /s/ [ILLEGIBLE]
------------------------------
Its: Vice President
-----------------------------
Date: _____________________________
America Online, Inc.
By: _____________________________
Its: _____________________________
Date: _____________________________
33
<PAGE>
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Series E-1 Convertible Preferred Stock Purchase Agreement of the day and year
first above written.
COMPANY:
-------
CCBN.COM, INC.
By: ____________________________
Its: ____________________________
Date: ____________________________
PURCHASERS:
----------
Thomson Information Services, Inc.
By: _____________________________
Its: _____________________________
Date: _____________________________
America Online In
By: /s/ [ILLEGIBLE]
-----------------------------
Its: VP- Business Affairs
-----------------------------
Date: 12/23/99
-----------------------------
34
<PAGE>
SCHEDULE I
----------
Purchasers
----------
- --------------------------------------------------------------------------------
Number of Preferred Purchase Price of
Name and Address of Purchaser Shares to be Preferred Shares
Purchased
- --------------------------------------------------------------------------------
America Online, Inc. 93,168 $1,500,004.80
22000 AOL Way
Dulles, VA 20166
Thomson Information Services, Inc. 114,812 $1,848,473.20
c/o Bill Zola
22 Thomson Place
Boston, MA 02210
- --------------------------------------------------------------------------------
35
<PAGE>
SCHEDULE II
-----------
Disclosure Schedule
-------------------
General Note: Facts disclosed for one Section in these schedules shall be deemed
to be disclosed for all Sections to which such facts might apply.
SECTION 2.04
See the Capitalization Table at Schedule IV.
Simultaneously with the Closing, the Company is issuing to AOL a warrant to
purchase up to 1,596,650 shares of its preferred stock. Contingent upon vesting
of the shares according to certain performance criteria established in the
Warrant Agreement, AOL will have the right to purchase up to 250,000 shares of
the Series E-1 Preferred Stock and up to 1,346,650 shares of preferred stock of
series to be established at the time of AOL's exercise of such warrant.
SECTION 2.06
Since September 30, 1999, the Company has set the annual salaries for its
officers as indicated in Section 2.22 of this Disclosure Schedule, and the
Company's Board of Directors has voted to issue to each such officer an option
to purchase 207,096 shares of the Company's Series A Common Stock.
Simultaneously with the Closing, the Company is entering into an Interactive
Services Agreement with AOL, a copy of which has been reviewed by the
Purchasers.
SECTION 2.07
The Company has filed suit in the U.S. District Court for the District of
Massachusetts against c-Call, Inc., seeking to protect its "Streetevents"
trademark. A motion for a preliminary injunction against c-Call's use of the
name "Streetfusion" was denied.
SECTION 2.09
See attached "Trademark List" indicating list of trademarks owned by the Company
and their registration status. The design mark referenced therein is for the
Company's "IR EYE" logo. Talkpoint Communications Inc. also owns a federal
registration for "TALKPOINT."
SECTION 2.15
CCBN has prepaid Ecerv for services totaling $15,000 as of 11/30/99.
SECTION 2.19
The Company is in continuous discussions with potential suitors and targets
regarding the possibility of conducting strategic transactions including, but
not limited to, mergers, sales, acquisitions and joint ventures. Although the
Company is not currently in negotiations to effect any such transaction, there
is no assurance that any current discussions or future discussions will not
result in the consummation of a transaction.
36
<PAGE>
SECTION 2.22
Name Office Salary
---- ------ ------
Jeffrey P. Parker Chairman, Chief Executive
Officer and Treasurer $200,000
Robert I. Adler President and Secretary $187,500
SECTION 2.23
Letter Agreement, dated April 26, 1999, between the Company and Thomson
Financial Investor Relations, relating to First Call data feed and other
matters.
SECTION 2.24
Certain employees of the Company have not yet returned signed copies of the
agreement in the form of Exhibit D. However, each of these employees signed a
similar agreement with the Company's predecessor, CCBN.COM, LLC, and, by the
terms of the transaction transforming CCBN.COM, LLC into CCBN.COM, Inc., those
agreements remain in full force. The Company is nonetheless seeking the
signatures of these employees on the new form of agreement and expects to
receive them shortly.
37
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
Thursday, December 02, 1999 Trademark List Page: 1
Client CCBN CCBN.COM, Inc.
Application Registration Renewal First Use
Trademark Name Attorney(s) Case Number Number/Filing Date Number/Date Date Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
(DESIGN) TML LAG 007332 75/802978 01-Aug-1997
Country: United States of America Owner: CCBN.COM, Inc. 16-Sep-1999
Status: Pending
Classes: 35 Remarks:
Goods: Providing management and consulting services in the field of
investor relations; providing investor relations services through a
global computer network.
- ------------------------------------------------------------------------------------------------------------------------------------
CCBN TML LAC JDP 006829 75/614953 01-Jun-1997
Country: United States of America Owner: CCBN.COM, Inc. 04-Jan-1999
Agent: FOL Foley, Hoag & Eliot LLP Status: Pending
Classes: 35 Remarks: Recordation of merger document recorded
5/13/99, reel/frame: 001913/0241.
Goods: Providing business management and consulting services in the
field of investor relations; providing investor relation services
through a global computer network.
</TABLE>
38
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
Thursday, December 02, 1999 Trademark List Page: 2
Client CCBN CCBN.COM, Inc.
Application Registration Renewal First Use
Trademark Name Attorney(s) Case Number Number/Filing Date Number/Date Date Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
IR EYE TML LAC JDP 006828 75/614921 01-Jul-1997
Country: United States of America Owner: CCBN.COM, Inc. 04-Jan-1999
Agent: FOL Foley, Hoag & Eliot LLP Status: Pending
Classes: 35 Remarks: Recordation of merger document recorded
5/13/99, reel/frame: 001913/0241.
Goods: Providing business management and consulting services in the
field of investor relations; providing investor relation services
through a global computer network.
- ------------------------------------------------------------------------------------------------------------------------------------
JOINMAIL TML LAC JDP 007058 75/674450 01-Apr-1998
Country: United States of America Owner: CCBN.COM, Inc. 05-Apr-1999
Agent: FOL Foley, Hoag & Eliot LLP Status: Pending
Classes: 38 Remarks:
Goods: Electronic mail list hosting services in the field of investor
relations via a global computer network.
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
Thursday, December 02, 1999 Trademark List Page: 3
Client CCBN CCBN.COM, Inc
Application Registration Renewal First Use
Trademark Name Attorney(s) Case Number Number/Filing Date Number/Date Date Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
STREETEVENTS TML LAC 007178 75/734153 28-Oct-1998
Country: United States of America Owner: CCBN.COM, Inc. 22-Jun-1999
Agent: FOL Foley, Hoag & Eliot LLP Status: Pending
Classes: 42 Remarks:
Goods: Providing access to a database via a global computer network
in the field of public company information.
</TABLE>
40
<PAGE>
SCHEDULE V
----------
The Company has entered into the following agreements that might be deemed
material, individually or in the aggregate:
SECTION 2.14 (g)
The Company provides a standard benefit package of medical insurance and pays
80% of the premium, a 401K plan with no matching of contributions, paid
vacation, tuition reimbursement, group life insurance, AD&D, short term
disability and long term disability insurance.
SECTION 2.14 (h)
In connection with the capital lease agreement with US Trust referenced in
Section 2.14(k) of this Disclosure Schedule, the Company has pledged to US Trust
a $75,000 certificate of deposit as collateral for such lease.
SECTION 2.14 (j)
The Thomson Agreement
The Series D Purchase Agreement
Stockholders Agreement by and among the Company and certain holders of its
Series D Preferred Stock (being amended and restated in connection with this
transaction).
SECTION 2.14 (k)
The Company has a capital lease agreement with US Trust Leasing Corporation to
lease furniture for its San Francisco and Boston offices through 8/3/03.
Lease agreement with 116 New Montgomery Associates, LLC for 3,196 square feet of
space located at 116 New Montgomery Street, Suite 714, San Francisco with a term
to 4/30/04.
Lease agreement with Millwood Partners, L.P. VII, dated 6/3/98, for 8,843 square
feet of space located at 133 Portland Street, Boston with a term to 12/31/01.
Sublease with One and Two Northwinds Center, L.P., dated 9/15/99 for 2,890
square feet located at Two NorthWinds Center, Alpharetta, Georgia with a term to
11/15/00.
The Company currently has taken assignment, as of August 13, 1999, of a lease
from Invention Machines Corporation to lease the 5/th/ and 6/th/ floors of 200
Portland Street (23,167 square feet) with a term to 1/31/03 and has assigned the
Company's Lease of 133 Portland Street to Invention Machines.
SECTION 2.14 (I)
Warrant Agreement with AOL being executed simultaneously with the Closing, as
described on Schedule II, Section 2.04.
41
<PAGE>
SECTION 2.14 (m)
The Company currently pays a maintenance agreement to Onyx Software Corporation
for an enterprise-wide system for client and sales tracking.
Content License Agreement with Yahoo! Inc., dated _____________.
SECTION 2.14 (p)
The Interactive Services Agreement.
Sales Agreements with customers in the standard form used by the Company.
Agreement with Digex, dated 8/17/98, to provide Website Hosting on servers for
all of the Company's clients. The Company intends to terminate this agreement
due to Digex's failure to adequately perform its duties under the agreement.
Agreement with E-cerv, Inc., dated 12/3/98, to provide interactive voice
response and mail fulfillment services.
Agreement with One World Software Solutions, Inc, dated October 19, 1998, to
provide software development resources for CCBN's Street Events division.
Agreement with Intervu Incorporated, dated 4/12/99, to provide streaming
audio/video services.
Agreement with Digitrade to provide delayed quote services.
Agreement with Media General Financial Services, Inc., dated 3/22/99, to provide
pricing and fundamental data for client web sites.
Agreement with Partes Corporation, dated 12/7/97, to provide SEC filings though
its Edgar Data services.
Agreement with FaxNet dated 9/30/99 to provide blast faxing services.
Agreement with GTE, dated 10/7/99, to provide website hosting on servers for all
of the Company's clients.
Agreement with Revnet Systems, dated 4/29/99, to provide Email list management
and client blast email communications.
Agreement with BigCharts Inc., dated September 30, 1999 to provide financial and
textual information pertinent to public companies.
42
<PAGE>
SCHEDULE III
------------
Purchaser Disclosure Schedule
-----------------------------
[No schedule provided by Purchasers]
43
<PAGE>
SCHEDULE IV
-----------
Security Holders
----------------
See attached capitalization table.
Simultaneously with the Closing, the Company is issuing to AOL a warrant to
purchase up to 1,596,650 shares of its preferred stock. Contingent upon vesting
of the shares according to certain performance criteria established in the
Warrant Agreement, AOL will have the right to purchase up to 250,000 shares of
the Series E-1 Preferred Stock and up to 1,346,650 shares of preferred stock of
series to be established at the time of AOL's exercise of such warrant.
44
<PAGE>
<TABLE>
<CAPTION>
Series A Series A Series B Series B Series C Series C Series D Series Series E
Common Pfd Common Pfd Common Pfd Common Pfd Common
-------- -------- -------- -------- -------- -------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Preferred Shares
- ----------------
Thomson Financial 562,500 44,043 41.544 86,358
Thomas Grant 7,500 892
Meredith Farms 15,000 1,784
Thomas O'Connor 30,000 3,568
William Sahlman 15,000 1,784
John Patterson 7,500 892
George Bull 15,000
Sam Bain for NSI 37,500 4,460
Evelyn Goldfine 15,000 1,784
Jack Ferraro 30,000 3,568
Al Waxman 30,000
Anita Waxman 3,568
Robert C. McCormack 30,000 3,568
Dan Turner 7,500 892
Russ Silvestri 10,500 1,249
David Friend 12,000
Richard Grimm 7,500 892
Sanddrift, LTD (Boyle) 30,000 3,568
Richard Hanlon 53,095
Guli Arshad 10,619
Jack Phillips 10,619
Trident 212,382
Psilos 212,382
Common Shares
- -------------
Jeffrey Parker 2,580,000 92,046
Robert Adler 791,250 15,750 18,000
Peter Hall 90,000 15,000 9,000
Larry Koolkin 93,750 5,625 4,500
Darryl Mueller 72,000
Tom Russell 18,000
Mary Fagan 15,000
Niru Savdharia 750 2,250
Helena Doto 3,000 1,500
Karol Flannery 22,500 3,000
Tom Rosati 93.75 140.625
Steve Roycroft 6,750
Stephen Kuklis 6,750
Randy Eaton 1,406
Joel Petino 6,750
Shawn Dornan 5,250
Rob Kearney 6,750
Scott Pierce 187.5
Scott Harvey 187.5
Nancy Hannigan 6,750
Kelly Gleason 281
Melissa Digravina 750 2,250
Andy Augustine 22,500 7,500
Catherine Hawley 9,000
Cezary Moroz 187.5
<CAPTION>
Fully
Options Diluted Shs
(Forfeitures) a/o 10/31/99 Percent
------------ ------------ -------
<S> <C> <C> <C>
Preferred Shares
- ----------------
Thomson Financial 734,445 10.80%
Thomas Grant 8,392 0.12%
Meredith Farms 16,784 0.25%
Thomas O'Connor 33,568 0.49%
William Sahlman 16,784 0.25%
John Patterson 8,392 0.12%
George Bull 15,000 0.22%
Sam Bain for NSI 41,960 0.62%
Evelyn Goldfine 16,784 0.25%
Jack Ferraro 33,568 0.49%
Al Waxman 30,000 0.44%
Anita Waxman 3,568 0.05%
Robert C. McCormack 33,568 0.49%
Dan Turner 8,392 0.12%
Russ Silvestri 11,749 0.17%
David Friend 12,000 0.18%
Richard Grimm 8,392 0.12%
Sanddrift, LTD (Boyle) 33,568 0.49%
Richard Hanlon 53,095 0.78%
Guli Arshad 10,619 0.16%
Jack Phillips 10,619 0.16%
Trident 212,382 3.12%
Psilos 212,382 3.12%
Common Shares
- -------------
Jeffrey Parker 207,096 2,879,142 42.33%
Robert Adler 207,096 1,032,096 15.18%
Peter Hall 114,000 1.68%
Larry Koolkin 0 103,875 1.53%
Darryl Mueller 1,650 73,650 1.08%
Tom Russell 18,000 0.26%
Mary Fagan 15,000 0.22%
Niru Savdharia 3,000 0.04%
Helena Doto 750.00 5,250 0.08%
Karol Flannery 25,500 0.37%
Tom Rosati 234 0.00%
Steve Roycroft 3,000 9,750 0.14%
Stephen Kuklis 750 7,500 0.11%
Randy Eaton 1,406 0.02%
Joel Petino 3,000 9,750 0.14%
Shawn Dornan 5,250 0.08%
Rob Kearney 3,000 9,750 0.14%
Scott Pierce 188 0.00%
Scott Harvey 188 0.00%
Nancy Hannigan 6,750 0.10%
Kelly Gleason 281 0.00%
Melissa Digravina 3,000 0.04%
Andy Augustine 45,000 75,000 1.10%
Catherine Hawley 1,000 10,000 0.15%
Cezary Moroz 188 0.00%
</TABLE>
45
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Jennifer Gilmore 750 750 750 2,250 0.03%
Shelby Zymroz 300 300 0.00%
Laurel Baker 300 450 750 0.01%
Tracy Brookings 234 234 0.00%
Robert Kinoshita 6,750 6,750 0.10%
Peter Shultz 750 750 1,500 0.02%
MaryJill Quinlan 6,750 6,750 0.10%
David J. Curtin 750 750 0.01%
Lonna L. Mitchell 750 750 0.01%
Kishore Rao 90,000 (56,667) 33,333 0.49%
Carol Walker 60,000 60,000 0.88%
David White 125 0 125 0.00%
Todd McKellar 6,750 6,750 0.10%
Gary Hellsten 6,750 6,750 0.10%
Austin Johnson 63 63 0.00%
Lori Richardson 4,500 1,500 6,000 0.09%
Elaina D'Amato 750 750 0.01%
Michael Dair 750 750 0.01%
Jeremy Breslau 300 450 750 0.01%
Amanda Lennon 300 450 750 0.01%
Poppy Keras 300 300 0.00%
Josh Goldfine 300 300 0.00%
Jim Griffin 300 300 0.00%
Hui Ye 300 700 1,000 0.01%
Jose Robles 49,800 49,800 0.73%
Paul Prescott 41,550 41,550 0.61%
Ron Ross 2,250 2,250 0.03%
Rob Coran 8,145 8,145 0.12%
Paula Daqui 3,300 3,300 0.05%
Steve Marsh 4,980 4,980 0.07%
Dan Grace 1,500 1,500 0.02%
Raj Rudolph 750 750 0.01%
Brooks Waugh 300 300 0.00%
Jon O'Connor 300 300 0.00%
Justin Bette 300 300 0.00%
Martin Cassidy 500 500 0.01%
Marci Fraulo 300 300 0.00%
Rob Kilgore 750 750 0.01%
Megan Stanley 3,000 3,000 0.04%
Cindy Bachan 625 625 0.01%
Mitchell Ocampo 300 300 0.00%
Jared Jackson 300 300 0.00%
Kim Allen 750 750 0.01%
Sabrina Beezeley 300 300 0.00%
Carrie Batcheller 300 300 0.00%
Lisa Donadt 300 300 0.00%
Rosina Barody 300 300 0.00%
Bruce Karten 500 500 0.01%
Seamus Condon 750 750 0.01%
Shane Franklin 750 750 0.01%
Shep Maher 500 500 0.01%
Julie Rockett 300 300 0.00%
Ian Grimm 750 750 0.01%
Justin Smithline 300 300 0.00%
</TABLE>
46
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Prescott Miller 750 750 0.01%
Karen Nelson 300 300 0.00%
Jack Phillips 60,000 60,000 0.88%
Christian Habermann 300 300 0.00%
James Busch 250 250 0.00%
Joe Mullaney 300 300 0.00%
John Oatis 250 250 0.00%
Richard Thompson 1,000 1,000 0.01%
Janelle Kill 100 100 0.00%
Colin Kingsbury 300 300 0.00%
Jeff Klein 1,200 1,200 0.02%
David Palnick 500 500 0.01%
Colleen Garvin 1,000 1,000 0.01%
Steve Caldwell 300 300 0.00%
Lori Sousa 500 500 0.01%
Debbi Titlebaum 500 500 0.01%
Alissa Bussey 100 100 0.00%
Sonja Wong 150 150 0.00%
Andre Lavoie 750 750 0.01%
Tejshri, Patel 300 300 0.00%
Alexandra Ramin 300 300 0.00%
Paul McGeehan 300 300 0.00%
Chad Stafford 250 250 0.00%
Kim Smith 500 500 0.01%
Alexandra Tyska 3,000 3,000 0.04%
Heather Foley 300 300 0.00%
Sunil Bhatt 15,000 15,000 0.22%
Tim Bryan 67,500 67,500 0.99%
McNeil, Joseph 1,000 1,000 0.01%
Morgan, Rachel 150 150 0.00%
Griffin, Frances 500 500 0.01%
Gillett, Michael 300 300 0.00%
Walsh, Michael 300 300 0.00%
Macauley, Brian 300 300 0.00%
Smychkovich, Sergei 750 750 0.01%
New employees 8/99 - 10/15 21,275 21,275 0.31%
Talkpoint shareholders 173,379 0 173,379 2.55%
Talkpoint employees 78,500 78,500 1.15%
Options unissued 114,320 114,320 1.68%
Jane McCahon 3,000 3,000 0.04%
Charles Wessendorf 3,000 3,000 0.04%
Julie Lorigan 3,000 3,000 0.04%
Karen Wharton 3,000 3,000 0.04%
Sam Levenson 3,000 3,000 0.04%
Jim Flanagan 1,000 1,000 0.01%
Kelly McDonald 1,000 1,000 0.01%
Total Shares
Outstanding 3,834,129 562,500 61,687 344,043 65,522 41,544 57,984 709,970 202,988 920,870 6,801,236 100.00%
</TABLE>
47
<PAGE>
EXHIBIT 10.7
EXECUTION COPY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of the 23 day of December, 1999, by and among
CCBN.COM, Inc., a Delaware corporation (the "Company"), the holders of the
Company's Series D Convertible Preferred Stock listed on Schedule I attached
hereto and the several purchasers (the "Series E-1 Investors") of the Series E-l
Convertible Preferred Stock, $.01 par value, of the Company, pursuant to the
Purchase Agreement between the Company and the Series E-1 Investors, dated as of
the date hereof (the "Series E Stock Purchase Agreement"), who are also listed
on Schedule I.
WHEREAS, the Company entered into a Registration Rights Agreement dated as
of June 9, 1999 (the "Original Agreement") with the holders of the Company's
Series D Preferred Stock (the "Series D Investors") in connection with the sale
of the Company's Series D Convertible Preferred Stock to the Series D Investors;
WHEREAS, the Company proposes to sell shares of its Series E-l Convertible
Preferred Stock, $.01 par value, to the Series E-1 Investors in the amounts set
forth opposite their respective names on Schedule I of the Series E-l Stock
Purchase Agreement pursuant to the terms of the Series E-l Stock Purchase
Agreement and it is a condition to the closing of such sale that this Agreement
be executed and delivered by the parties hereto; and
WHEREAS, the Company and the undersigned parties, being the requisite
number of Series D Investors, have agreed to amend and restate the Original
Agreement and the Series E-l Investors who are not parties to the Original
Agreement have agreed to enter into this Amended and Restated Registration
Rights Agreement.
NOW, THEREFORE, the parties hereto hereby agree that the Original Agreement
is hereby amended and restated in its entirety as follows:
1. Certain Definitions. As used in this Agreement, the following terms
-------------------
shall have the following respective meanings:
"AOL" shall mean America Online, Inc.
---
"Commission" shall mean the Securities and Exchange Commission, or any
----------
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Series A Common Stock, $.001 par value, of
------------
the Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued upon
-----------------
conversion of the Preferred Shares.
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
------------
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Preferred Shares" shall mean the shares of the Company's Series D
----------------
Convertible Preferred Stock, the shares of the Company's Series E Convertible
Preferred Stock and any other shares of the Company's Convertible Preferred
Stock held by Thomson issued and outstanding on the date of this Agreement.
"Registration Expenses" shall mean the expenses so described in Section 8.
---------------------
"Restricted Stock" shall mean the shares of Common Stock held by Thomson,
----------------
any shares of Series E-l Convertible Preferred Stock of any subseries hereafter
acquired by AOL pursuant to the Warrant, and the Conversion Shares, excluding
shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
--------------
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 8.
----------------
"Thomson" shall mean Thomson Information Services, Inc.
"Warrant" shall mean the Stock Subscription Warrant between AOL and the
Company of even date herewith.
2. Restrictive Legend. Each certificate representing Preferred Shares or
------------------
Conversion Shares shall, except as otherwise provided in this Section 2 or in
Section 3, be stamped or otherwise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS IT HAS BEEN
REGISTERED UNDER SUCH ACT AND ALL SUCH
APPLICABLE LAWS OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company the securities represented thereby may be publicly
sold without registration under the Securities Act and any applicable state
securities laws.
2
<PAGE>
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
---------------------------
Preferred Shares or Conversion Shares (other than under the circumstances
described in Sections 4, 5 or 6), the holder thereof shall give written notice
to the Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel reasonably satisfactory to the
Company to the effect that the proposed transfer may be effected without
registration under the Securities Act and any applicable state securities laws,
whereupon the holder of such stock shall be entitled to transfer such stock in
accordance with the terms of its notice; provided, however, that no such opinion
--------- -------
of counsel shall be required for a transfer to one or more partners of the
transferor (in the case of a transferor that is a partnership) or to an
affiliated corporation (in the case of a transferor that is a corporation). Each
certificate for Preferred Shares or Conversion Shares transferred as above
provided shall bear the legend set forth in Section 2, except that such
certificate shall not bear such legend if (i) such transfer is in accordance
with the provisions of Rule 144 (or any other rule permitting public sale
without registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act. The restrictions provided for in this Section 3 shall not apply
to securities which are not required to bear the legend prescribed by Section 2
in accordance with the provisions of that Section.
4. Required Registration.
---------------------
(a) At any time beginning January 1, 2003, the holders of Restricted
Stock constituting at least 50% of the total shares of Restricted Stock then
outstanding may request the Company to register under the Securities Act all or
any portion of the shares of Restricted Stock held by such requesting holder or
holders for sale in the manner specified in such notice, provided that the
shares of Restricted Stock for which registration has been requested shall
constitute at least 25% of the total shares of Restricted Stock originally
issued (or any lesser percentage if the anticipated aggregate offering price
would exceed $10,000,000). For purposes of this Section 4 and Sections 5, 6,
13(a) and 13(d), the term "Restricted Stock" shall be deemed to include the
number of shares of Restricted Stock which would be issuable to a holder of
Preferred Shares upon conversion of all Preferred Shares held by such holder at
such time, provided, however, that the only securities which the Company shall
--------- -------
be required to register pursuant hereto shall be shares of Common Stock, and
provided, further, however, that, in any underwritten public offering
- ------------------ -------
contemplated by this Section 4 or Sections 5 and 6, the holders of Preferred
Shares shall be entitled to sell such Preferred Shares to the underwriters for
conversion and sale of the shares of Common Stock issued upon conversion
thereof. Notwithstanding anything to the contrary contained herein, no request
may be made under this Section 4(a) within 120 days after the effective date of
a registration statement filed by the Company covering a firm commitment
underwritten public offering in which the holders of Restricted Stock shall have
been entitled to join pursuant to Sections 5 or 6.
(b) At any time after the earlier of: (i) January 1, 2003 and (ii)
the date 180 days following the effective date of the first underwritten public
offering of the Company's securities, when AOL owns at least 5% of the
outstanding capital stock of the Company, on a fully diluted basis (counting all
convertible securities and rights to purchase securities as if fully
3
<PAGE>
converted or exercised, except that, with respect to the Warrant, Warrant Shares
(as defined in the Warrant) shall be counted only to the extent vested), AOL may
request the Company to register under the Securities Act all or any portion of
the shares of Restricted Stock held by AOL for sale in the manner specified in
such notice, provided that the anticipated aggregate offering price of the
shares of Restricted Stock for which registration has been requested would
exceed $2,500,000, and provided further, that AOL may not make such a request on
more than two (2) occasions or on any occasion within nine (9) months of a
previous request.
(c) Following receipt of any notice under this Section 4, the Company
shall immediately notify all holders of Restricted Stock from whom notice has
not been received and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting holders, the number of shares of
Restricted Stock specified in such notice (and in all notices received by the
Company from other holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public offering
the Company will designate the managing underwriter of such offering which
managing underwriter shall be reasonably acceptable to a majority of the holders
selling Restricted Stock in such offering. The Company shall be obligated to
register Restricted Stock pursuant to this Section 4 on one occasion only,
provided, however, that such obligation shall be deemed satisfied only when a
- -----------------
registration statement covering all shares of Restricted Stock specified in
notices received as aforesaid, for sale in accordance with the method of
disposition specified by the requesting holders, shall have become effective
and, if such method of disposition is a firm commitment underwritten public
offering, all such shares shall have been sold pursuant thereto.
(d) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock to be sold. Except for registration statements
on Form S-4, S-8 or any successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Common Stock,
whether for its own account or that of other stockholders, from the date of
receipt of a notice from requesting holders pursuant to this Section 4 until the
completion of the period of distribution of the registration contemplated
thereby.
5. Incidental Registration. If the Company at any time (other than
-----------------------
pursuant to Section 4 or Section 6) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms S-4, S-8 or another form not available for
registering the Restricted Stock for sale to the public), each such time it will
give written notice to all holders of outstanding Restricted Stock of its
intention so to do. Upon the written request of any such holder, received by the
Company within 30 days after the giving of any such notice by the Company, to
register any of its Restricted Stock, the Company will use its best efforts to
cause the Restricted Stock as to which registration shall have been so requested
to be included in the securities to be covered by the registration statement
proposed to be filed by the Company, all to the extent requisite to permit the
sale or other disposition by the holder of such
4
<PAGE>
Restricted Stock so registered, and, if such registration is not an underwritten
public offering, all subject to the right of the Company to reduce (pro rata
among the requesting holders based upon the number of shares of Restricted Stock
owned by such holders) the number of shares of the Purchasers proposed to be
registered to not less than one-third of the total number of shares in the
offering, if and to the extent that the Company shall be of the opinion that
such inclusion would adversely affect the marketing of the securities to be
sold.
In the event that any registration pursuant to this Section 5 shall be, in
whole or in part, an underwritten public offering of Common Stock, the number of
shares of Restricted Stock to be included in such an underwriting may be reduced
without limitation (pro rata among the requesting holders based upon the number
of shares of Restricted Stock owned by such holders) if and to the extent that
the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company
therein, provided, however, that such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for the
account of any person other than the Company or requesting holders of Restricted
Stock.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 5 without thereby incurring
any liability to the holders of Restricted Stock.
6. Registration on Form S-3. If at any time (i) a holder or holders of
------------------------
the Preferred Shares or Restricted Stock then outstanding request that the
Company file a registration statement on Form S-3 or any successor thereto for a
public offering of all or any portion of the shares of Restricted Stock held by
such requesting holder or holders, the reasonably anticipated aggregate price to
the public of which would exceed $1,000,000, and (ii) the Company is a
registrant entitled to use Form S-3 or any successor thereto to register such
shares, then the Company shall use its best efforts to register under the
Securities Act on Form S-3 or any successor thereto, for public sale in
accordance with the method of disposition specified in such notice, the number
of shares of Restricted Stock specified in such notice, provided, however, that
the Company shall not be required to effect a registration pursuant to this
Section 6 more than once in any 12-month period. Whenever the Company is
required by this Section 6 to use its best efforts to effect the registration of
Restricted Stock, each of the procedures and requirements of Section 4
(including but not limited to the requirement that the Company notify all
holders of Restricted Stock from whom notice has not been received and provide
them with the opportunity to participate in the offering) shall apply to such
registration, provided, however, that there shall be no limitation on the number
of registrations on Form S-3 which may be requested and obtained under this
Section 6, and provided, further, however, that the requirements contained in
the first sentence of Section 4(a) shall not apply to any registration on
Form S-3 which may be requested and obtained under this Section 6.
7. Registration Procedures. If and whenever the Company is required by
-----------------------
the provisions of Sections 4, 5 or 6 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
5
<PAGE>
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 4,
shall be on Form S-l, or on Form S-3 if the Company is eligible to so file, or
on another form of general applicability satisfactory to the managing
underwriter selected as therein provided) with respect to such securities and
use its best efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby (determined as
hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request,
provided, however, that the Company shall not for any such purpose be required
to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller
of Restricted Stock, use its best efforts to furnish on the date that Restricted
Stock is delivered to the under writers for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to such seller,
stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the
6
<PAGE>
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or supplement
thereof comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements contained therein) and (C) to such other effects as
reasonably may be requested by counsel for the underwriters or by such seller or
its counsel and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to such
seller, stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request; and
(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the period of
distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and 120 days
after the effective date thereof.
In connection with each registration hereunder, the sellers of Restricted
Stock will furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 4, 5 or 6
covering an underwritten public offering, the Company and each seller agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. Expenses. All expenses incurred by the Company in complying with
--------
Sections 4, 5 and 6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or
7
<PAGE>
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, costs of insurance and
fees and disbursements of one counsel for the sellers of Restricted Stock
("Sellers' Counsel Expenses"), but excluding any Selling Expenses, are called
"Registration Expenses." All underwriting discounts and selling commissions
applicable to the sale of Restricted Stock are called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution.
--------------------------------
(a) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Sections 4, 5 or 6, the Company will
indemnify and hold harmless each seller of such Restricted Stock thereunder,
each underwriter of such Restricted Stock thereunder and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Sections 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such seller, each such underwriter and each such controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that the Company will not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by any such
seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Sections 4, 5 or 6, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (`or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in
8
<PAGE>
the registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Sections 4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Company and each
such officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in such registration statement or prospectus, and provided,
further, however, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of the shares sold by
such seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not in any event to exceed the net
proceeds received by such seller from the sale of Restricted Stock covered by
such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party), to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder of
Restricted Stock exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for
9
<PAGE>
indemnification pursuant to this Section 9 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 9 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling holder or any such controlling person in circumstances for which
indemnification is provided under this Section 9; then, and in each such case,
the Company and such holder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that such holder is responsible for the portion
represented by the percentage that the public offering price of its Restricted
Stock offered by the registration statement bears to the public offering price
of all securities offered by such registration statement, and the Company is
responsible for the remaining portion; provided, however, that, in any such
case, (A) no such holder will be required to contribute my amount in excess of
the public offering price of all such Restricted Stock offered by it pursuant to
such registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
10. Changes in Common Stock or Preferred Stock. If, and as often as, there
------------------------------------------
is any change in the Common Stock or the Preferred Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
the Preferred Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, at all times
after 90 days after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Restricted Stock without
registration.
10
<PAGE>
12. Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any order of any court or other agency of government, the Charter or By-
laws of the Company or any provision of any indenture, agreement or other
instrument to which it or any or its properties or assets is bound, conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other intent or result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except insofar as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws of general application affecting enforcement of creditors' rights
and except as to enforceability of the indemnification and contribution
provisions.
13. Miscellaneous.
-------------
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation transferees of any Preferred Shares or Restricted Stock), whether so
expressed or not, provided, however, that registration rights conferred herein
on the holders of Preferred Shares or Restricted Stock shall only inure to the
benefit of a transferee of Preferred Shares or Restricted Stock if (i) there is
transferred to such transferee at least 50% of the total shares of Restricted
Stock originally issued pursuant to the Purchase Agreement to the direct or
indirect transferor of such transferee or (ii) such transferee is a partner,
shareholder or affiliate of a party hereto.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows:
if to the Company or any other party hereto, at the address of such party
set forth in the Purchase Agreement;
if to any subsequent holder of Preferred Shares or Restricted Stock, to it
at such address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Preferred Shares or
Restricted Stock) or to the holders of Preferred Shares or Restricted Stock (in
the case of the Company) in accordance with the provisions of this paragraph.
11
<PAGE>
(c) This Agreement shall be governed by and construed in accordance
with the laws of Delaware.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the holders
of at least two-thirds of the outstanding shares of Restricted Stock; provided
that AOL's rights and obligations hereunder may not be amended or modified
without the written consent of AOL and Thomson's rights and obligations
hereunder may not be amended or modified without the written consent of Thomson.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same intent.
(f) The obligations of the Company to register shares of Restricted
Stock under Sections 4, 5 or 6 shall terminate on the tenth anniversary of the
date of this Agreement.
(g) If requested in writing by the underwriters for an underwritten
public offering of securities of the Company, each holder of Restricted Stock
who is a party to this Agreement (if still a holder of Restricted Stock at the
time) shall agree not to sell publicly any shares of Restricted Stock or any
other shares of Common Stock (other than shares of Restricted Stock or other
shares of Common Stock being registered in such offering), without the consent
of such underwriters (the "Lock-Up Obligation"), for a period of not more than
180 days in the case of an initial public offering or 90 days in the case of all
other public offerings following the effective date of the registration
statement relating to such offering; provided, however, that all persons
entitled to registration rights with respect to shares of Common Stock who are
not parties to this Agreement, all other persons selling shares of Common Stock
in such offering, and all executive officers and directors of the Company shall
also have agreed not to sell publicly their Common Stock under the circumstances
and pursuant to the terms set forth in this Section 13(g). Notwithstanding the
foregoing, the Lock-Up Obligation shall not apply to AOL, with respect to the
Shares purchased by AOL pursuant to the Warrant only, for any offering other
than the Company's initial public offering.
(h) Notwithstanding the provisions of Section 7(a), the Company's
obligation to file a registration statement, or cause such registration
statement to become and remain effective, shall be suspended for a period not to
exceed 90 days in any 12-month period (i) if there exists at the time material
non-public information relating to the Company which, in the reasonable opinion
of the Company, should not be disclosed or (ii) if such filing would materially
and adversely affect a pending or scheduled public offering of the Company's
securities.
(i) The Company shall not grant to any third party any registration
rights more favorable than or inconsistent with any of those contained herein,
so long as any of the registration rights under this Agreement remains in
effect.
12
<PAGE>
(j) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(k) Thomson and the Company agree that the provisions of Sections
2.01 of the Amended and Restated Agreement Among Thomson and Founders, dated as
of March 31, 1999, are hereby deleted from that agreement and shall be of no
further force or effect.
[The remainder of this page is left blank intentionally.]
13
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement as of the date and year first above
written.
CCBN. COM, INC.
By: /s/ [ILLEGIBLE]
---------------------------------------------
Its: Chairman & CEO
---------------------------------------------
PSILOS GROUP PARTNERS, L.P.
By: PSILOS GROUP INVESTORS, LLC
its General Partner
By: /s/ [ILLEGIBLE]
----------------------------------------
Its: ________________________________________
CCP/PSILOS CCBN.COM, L.L.C.
By: /s/ [ILLEGIBLE]
---------------------------------------------
Its: _____________________________________________
TORONTO DOMINION INVESTMENTS, INC.
By: /s/ Martha L. Gariep
---------------------------------------------
Its: Vice President
---------------------------------------------
INFORMATION ASSOCIATES-II, L.P.
By: TRIDENT CAPITAL MANAGEMENT-II, L.L.C., its
General Partner
By: /s/ [ILLEGIBLE]
----------------------------------------
Its: Managing Director
----------------------------------------
IA-II AFFILIATES FUND, L.L.C
By: /s/ [ILLEGIBLE]
---------------------------------------------
Its: Managing Director
---------------------------------------------
<PAGE>
Additional Signature Page to CCBN Amended and Restated Registration Rights
Agreement
/s/ Richard Hanlon
--------------------------------------------------
Richard Hanlon
Robert C. McCormack 1967 Trust 02-33942
By: /s/ [ILLEGIBLE]
---------------------------------------------
Its: Trustee
---------------------------------------------
Newbury Street International, LLC
By: /s/ [ILLEGIBLE]
---------------------------------------------
Its: _____________________________________________
Parker Family Limited Partnership
By: /s/ [ILLEGIBLE]
---------------------------------------------
Its: General Partner
---------------------------------------------
Thomson Information Services, Inc.
By: /s/ [ILLEGIBLE]
---------------------------------------------
Its: Vice President
---------------------------------------------
America Online, Inc.
By: /s/ [ILLEGIBLE]
---------------------------------------------
Its: VP - Business Affairs
---------------------------------------------
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 10.8
Confidential
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED. THESE
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT OR LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
CCBN.COM, INC.
STOCK SUBSCRIPTION WARRANT
December 23, 1999
1. General.
-------
(a) THIS CERTIFIES that, for value received, AMERICA ONLINE, INC.
("AOL"), or assigns, is entitled to subscribe for and purchase from CCBN.COM,
INC., a Delaware corporation (the "Corporation"), at any time or from time to
time during the period (the "Exercise Period") commencing with the date hereof
and ending on the sixth anniversary of the date hereof (subject to being
extended as set forth in Sections 9(d) hereof), on the terms and subject to the
provisions hereinafter set forth, up to 1,596,650 shares (subject to adjustment
as provided herein) of fully paid and non-assessable (i) shares of the series of
preferred stock determined in accordance with Exhibit C hereto, in each case
---------
with the same rights, preferences and privileges, other than the original
issuance price and liquidation preference (which, in each case, shall be equal
to the initial Warrant Price (as defined below)), as the Series E-l Preferred
Stock (the "Preferred Stock"), or (ii) in the event the Preferred Stock shall
prior to exercise or exchange of this Warrant have been converted into Common
Stock, $.00l par value (the "Common Stock") of the Corporation as a result of
the automatic conversion of Preferred Stock pursuant to Article FOURTH, Section
2(b)(i) of the Amended and Restated Certificate of Incorporation of the
Corporation (the "Certificate of Incorporation"), that number of shares of
Common Stock into which such number of shares of Preferred Stock is converted
("Mandatory Conversion Event"), at any time or from time to time during the
Exercise Period, in each case, at a price per share (the "Warrant Price") as set
forth on Exhibit A hereto and at such times as shall be determined in accordance
---------
with Section 1(b) hereof.
This Warrant is being issued pursuant to an Interactive Services Agreement dated
as of the date hereof (the "Agreement"), between the Corporation and AOL as
partial consideration for the services to be provided by AOL to the Corporation
pursuant to that agreement, and the warrants will be treated accordingly under
Section 83 of the Internal Revenue Code for federal income tax purposes. All
terms used but not defined herein shall have the meanings set forth in the
Agreement. The shares of capital stock of the Corporation issuable upon exercise
or exchange of this Warrant are sometimes hereinafter referred to as the
"Warrant Shares," and, in connection therewith, all references herein to Warrant
Shares shall mean Preferred Stock until the
1
<PAGE>
occurrence of a Mandatory Conversion Event, and upon and at all times after, the
occurrence of a Mandatory Conversion Event, shall mean Common Stock.
(b) This Warrant shall become exercisable as to that number of
Warrant Shares, and at such times, as are determined in accordance with Exhibit
-------
A attached hereto; provided, however, that this Warrant shall become
- - -----------------
automatically exercisable as to all of the Warrant Shares immediately upon the
occurrence of a Stipulated Event with a Warrant Price for such accelerated
Warrant shares equal to ninety percent (90%) of the Acceleration Fair Market
Value (as defined below). The Corporation shall give AOL written notice of such
Stipulated Event at least five (5) business days prior to the consummation of
the Stipulated Event. As used herein, the term "Stipulated Event" shall mean (a)
a Corporate Transaction (as hereinafter defined) involving a competitor of AOL
listed on Exhibit D hereto (an "AOL Competitor") or (b) a termination of the
---------
Agreement that results from a material breach by the Corporation of the
Agreement. "Corporate Transaction" means (A) any consolidation or merger of the
Corporation with or into any other corporation or other entity, other than any
merger or consolidation resulting in the holders of the capital stock of the
Corporation entitled to vote for the election of directors holding a majority of
the capital stock of the surviving or resulting corporation or other entity
entitled to vote for the election of directors, (B) any person or entity
(including any affiliates thereof) other than Jeffrey P. Parker (or his
affiliate(s)) becoming the holder of a majority of the capital stock of the
Corporation entitled to vote for the election of directors, (C) Jeffrey P.
Parker (or his affiliates(s)) becoming the holder of more than 60% of the
capital stock of the Corporation entitled to vote for the election of directors,
or (D) any sale or other disposition by the Corporation of all or substantially
all of its assets or capital stock.
(c) In the event of a proposed Corporate Transaction involving an
entity other than an AOL Competitor, the Corporation shall deliver a written
notice of such Corporate Transaction to AOL at least twenty (20) business days
prior to the consummation of the Corporate Transaction (the "Corporate
Transaction Notice") and AOL shall, upon delivery of the Corporate Transaction
Notice, have the right and option to elect, by delivering written notice to the
Corporation (the "Acceleration Notice") up to five (5) business days prior to
the consummation of such Corporate Transaction, to have the Warrant become
exercisable as provided in Sections 1(d) through (g) below; provided, however,
--------- -------
that if the Corporation fails to deliver the Corporate Transaction Notice in a
timely manner, then AOL shall have the right and option to elect, by delivering
an Acceleration Notice to the Corporation, regardless of whether the Corporation
delivers the Corporate Transaction Notice, at any time prior to the later of (A)
ten (10) business days after receipt of the Corporate Transaction Notice or (B)
ten (10) business days after the consummation of such Corporate Transaction, to
have the Warrant become exercisable as provided in Sections 1(d) through (g)
below. If the proposed Corporate Transaction referenced in any Corporate
Transaction Notice is not consummated, then the Warrant shall continue to vest
pursuant to the terms hereof, notwithstanding the delivery of any Acceleration
Notice, and Sections 1(b) through (g) hereof shall continue to apply and shall
be in full force and effect.
(d) If a Corporate Transaction involves any person or entity other
than an AOL Competitor, then AOL shall have the right and option to elect, by
delivering the Acceleration Notice as provided in Section 1(c) hereof:
2
<PAGE>
(i) to have the Warrant become exercisable immediately as to one-
half (1/2) of all then unvested Warrant Shares on the date of the
consummation of such Corporate Transaction (such date the "Acceleration
Date") with a Warrant Price for such accelerated Warrant Shares equal to
ninety percent (90%) of the Acceleration Fair Market Value and the
remaining unvested Warrant Shares shall continue to vest as provided in
Exhibit A; or
---------
(ii) to not have the Warrant accelerate as provided in Section
l(d)(i) above, and the Warrant Shares shall continue to vest as provided in
Exhibit A hereto; provided, however, that anything contained herein to the
--------- --------- -------
contrary notwithstanding, the Warrant Price of Warrant Shares, as they
vest, shall be the lesser of: (i) ninety percent (90%) of the Acceleration
Fair Market Value and (ii) ninety percent (90%) of Fair Market Value (as
defined in Exhibit A hereto).
---------
(e) Anything contained herein to the contrary notwithstanding, if,
within six (6) months after the consummation of the Corporate Transaction, AOL
determines in its reasonable discretion that a Corporate Transaction inhibits,
impairs or otherwise adversely impacts AOL's ability or the Corporation's
ability to meet and/or perform its or their respective obligations pursuant to
the Agreement (as the same may be amended from time to time), then AOL shall
deliver a notice in writing to the Corporation and this Warrant shall become
immediately exercisable as to all of the Warrant Shares upon delivery of such
notice, with a Warrant Price for such accelerated Warrant shares equal to the
lesser of (A) ninety percent (90%) of the Acceleration Fair Market Value or (B)
90% of the Fair Market on the date of delivery of the Notice.
(f) "Acceleration Fair Market Value" means the fair market value of
the consideration paid to the Corporation in the Corporate Transaction, divided
by the number of shares of Common Stock, and its equivalents (determined on a
fully diluted basis), transferred in such Corporate Transaction; provided, that
--------
if the consideration paid to the Corporation in such Corporate Transaction is
other than cash, the value of such non-cash consideration shall be determined in
good faith by the Board of Directors of the Corporation and the holder of this
Warrant.
(g) If the holder of this Warrant receives the Corporate Transaction
Notice and does not deliver the Acceleration Notice as provided in Section 1(c)
hereof, then the holder will be deemed to have elected to accelerate the Warrant
pursuant to Section l(d)(i) hereof.
2. Exercise of Warrant. The rights represented by this Warrant may be exercised
----------- -------
by the holder hereof, as to those Warrant Shares for which this Warrant is then
exercisable as determined in accordance with Section 1, in whole or in part, at
any time or from time to time during the Exercise Period, by the surrender of
this Warrant (properly endorsed) at the office of the Corporation at 200
Portland St., Boston, MA 02114, Attention: President, or at such other agency or
office of the Corporation in the United States of America as it may designate by
notice in writing to the holder hereof at the address of such holder appearing
on the books of the Corporation, and by payment (either in cash, by check, by
cancellation of indebtedness and/or in shares of capital stock of the
Corporation valued at Fair Market Value (as hereinafter defined) on
3
<PAGE>
the date of such exercise) to the Corporation of the Warrant Price for each
Warrant Share being purchased. In the event of the exercise of the rights
represented by this Warrant, a certificate or certificates for the Warrant
Shares so purchased, registered in the name of the holder, and if this Warrant
shall not have been exercised for all of the Warrant Shares, a new Warrant,
registered in the name of the holder hereof, of like tenor to this Warrant,
shall be delivered to the holder hereof within a reasonable time, not exceeding
ten days, after the rights represented by this Warrant shall have been so
exercised. The person in whose name any certificate for Warrant Shares is issued
upon exercise of this Warrant shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Warrant Price and any applicable taxes was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Corporation are closed, such person shall be deemed to have become the
holder of such shares at the close of business on the next succeeding date on
which the stock transfer books are open.
3. Exchange of Warrant. In addition to, and independent of, the rights of the
-------------------
holder of this Warrant set forth in Section 2 hereof, the holder hereof may at
any time or from time to time elect to receive, without the payment by the
holder of any additional consideration, that number of Warrant Shares determined
as hereinafter provided in this Section 3 by the surrender of this Warrant or
any portion hereof to the Corporation in respect to Warrant Shares then vested,
accompanied by an executed Notice of Exchange in substantially the form thereof
attached hereto (the "Net Issue Election"). Thereupon, the Corporation shall
issue to the holder hereof such number of fully paid and nonassessable Warrant
Shares as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of Warrant Shares to be issued to the holder pursuant to
this Section 3.
Y = the number of vested Warrant Shares covered by this Warrant in
respect of which the Net Issue Election is made pursuant to this
Section 3.
A = the Fair Market Value (as hereinafter defined) of one Warrant Share
determined at the time the Net Issue Election is made pursuant to
this Section 3 (the "Determination Date").
B = the Warrant Price in effect under this Warrant at the time the Net
Issue Election is made pursuant to this Section 3.
For purposes of the above calculation, "Fair Market Value" of one Warrant Share
as of the Determination Date shall mean:
(i) if as a result of a Mandatory Conversion Event the Warrant Shares
mean Common Stock as set forth in Section 1, then (A) if the Common Stock of the
Corporation is not then traded on a national securities exchange, the average of
the closing prices quoted on the National Association of Securities Dealers,
Inc. Automated Quotation National Market
4
<PAGE>
System, if applicable, or the average of the last bid and asked prices of the
Common Stock quoted in the over-the-counter-market or (B) if the Common Stock is
then traded on a national securities exchange, the average of the high and low
prices of the Common Stock listed on the principal national securities exchange
on which the Common Stock is so traded, in each case for the Determination Date
and the nineteen (19) trading days immediately preceding the Determination Date
or, if such date is not a business day on which shares are traded, the next
immediately preceding trading day;
(ii) in the event of a Warrant Exchange in connection with a
Corporate Transaction, the value per share of Common Stock received or
receivable by each holder thereof (assuming, in the case of a sale of assets,
the Corporation is liquidated immediately following such sale and the
consideration paid to the Corporation is immediately distributed to its
stockholders); and
(iii) in all other circumstances, the fair market value per share of
Common Stock shall be determined by mutual agreement between the Corporation and
the holder of this Warrant; provided, that if no such mutual agreement can be
--------
reached within five business days after delivery of the Notice of Exchange
referred to above, then the fair market value per share of Common Stock shall be
as determined by a nationally recognized independent investment banking firm,
jointly selected by the Corporation and the holder of this Warrant or, if such
selection cannot be made within five business days thereof, then by a nationally
recognized independent investment banking firm selected by the American
Arbitration Association then obtaining; provided, that the cost or expense of
--------
any such investment banking firm shall be borne equally by the Corporation and
the holder of the Warrant.
The closing of any Warrant Exchange shall take place at the offices of the
Corporation on the date specified in the Notice of Exchange (the "Exchange
Date"), which shall be not less than five and not more than 30 days after the
delivery of such Notice. At such closing, the Corporation shall issue and
deliver to the holder or its designee a certificate or certificates for the
Warrant Shares to be issued upon such Warrant Exchange, registered in the name
of the holder or such designee, and if such Warrant Exchange shall not have been
for all Warrant Shares, a new Warrant, registered in the name of the holder, of
like tenor to this Warrant for the number of shares still subject to this
Warrant following such Warrant Exchange.
4. Adjustment of Warrant Price; Adjustment of Warrant Shares. If, at any time
---------------------------------------------------------
during the Exercise Period, the number of outstanding shares of any series of
preferred stock of the Corporation or Common Stock is (i) increased by a stock
dividend payable in shares of capital stock or by a subdivision or split-up of
shares of such capital stock, or (ii) decreased by a combination of shares of
capital stock, then, following the record date fixed for the determination of
holders of capital stock entitled to receive the benefits of such stock
dividend, subdivision, split-up, or combination, the (1) Warrant Price shall be
adjusted on the effective date of such stock dividend, subdivision, split-up or
combination to a new amount equal to the product of (A) the Warrant Price in
effect on such record date and (B) the quotient obtained by dividing (x) the
number of shares of Common Stock outstanding on such record date (without giving
effect to the event referred to in the foregoing clause (i) or (ii)), by (y) the
number of shares of Common Stock which would be outstanding immediately after
the event referred to in the foregoing clause
5
<PAGE>
(i) or (ii), if such event had occurred immediately following such record date
and (2) the number of Warrant Shares shall be proportionately increased (in the
case of a subdivision, split-up or stock dividend) or proportionately decreased
(in the case of a combination).
5. Representations and Warranties; Covenants as to Preferred Stock.
---------------------------------------------------------------
(a) In connection with the exercise of the Warrant, the Corporation
shall make representations and warranties as to organization, authority,
capitalization, litigation.
(b) Prior to or concurrent with the Warrant Shares becoming vested and
exercisable, the Corporation shall designate and authorize each series of
Preferred Stock listed on Exhibit C hereto and shall fix the original issuance
---------
price of each such series in accordance with the definition of "Fair Market
Value" set forth in Exhibit A, or the provisions of Sections 1(b) through (g)
---------
hereof, as applicable.
(c) The Corporation covenants and agrees that all shares of Preferred
Stock which may be issued upon the exercise of the rights represented by this
Warrant, and all shares of Common Stock which may be issued upon the conversion
of the Preferred Stock will, upon issuance, be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issuance thereof. The Corporation further covenants and agrees that the
Corporation will from time to time take all such action as may be requisite to
assure that the stated or par value per share of the Preferred Stock and the
Common Stock is at all times equal to or less than the then effective Warrant
Price per share of Preferred Stock issuable upon exercise of this Warrant. The
Corporation further covenants and agrees that the Corporation will at all times
have authorized and reserved or shall authorize and reserve, free from
preemptive rights, a sufficient number of (a) shares of its Preferred Stock to
provide for the exercise of the rights represented by this Warrant and (b)
shares of Common Stock to provide for the conversion of the Preferred Stock
issuable upon exercise of this Warrant; provided, that AOL acknowledges that
--------
Thomson Information Services, Inc. ("Thomson") may exercise its existing
preemptive rights in connection with the exercise of this Warrant, which
exercise by Thomson shall not reduce or affect the number of shares issued or
issuable to AOL pursuant to this Warrant. The Corporation further covenants and
agrees that if any shares of capital stock to be reserved for the purpose of the
issuance of shares of Preferred Stock upon the exercise of this Warrant require
registration with or approval of any governmental authority under any Federal or
state law before such shares may be validly issued or delivered upon exercise,
then the Corporation will in good faith and expeditiously as possible endeavor
to secure such registration or approval, as the case may be. If and so long as
the Preferred Stock or Common Stock issuable upon the exercise of the rights
represented by this Warrant is listed on any national securities exchange, the
Corporation will, if permitted by the rules of such exchange, list and keep
listed on such exchange, upon official notice of issuance, all shares of such
capital stock.
(d) Reference is made to the Series E Stock Purchase Agreement dated
as of the date hereof (the "Stock Purchase Agreement"), among AOL, the
Corporation and Thomson. The representations set forth in Sections 2.7 through
2.29 of the Stock Purchase Agreement are incorporated herein by reference.
6
<PAGE>
(e) The Corporation further covenants and agrees that the holder
hereof will be entitled to the benefits of any adjustment prior to the exercise
hereof pursuant to any anti-dilution protection and any notice of adjustment of
the conversion price provided to the holders of Preferred Stock in accordance
with the Certificate of Incorporation.
6. No Shareholder Rights. This Warrant shall not entitle the holder hereof to
---------------------
any voting rights or other rights as a shareholder of the Corporation.
7. Restrictions on Transfer. The holder of this Warrant acknowledges that
------------------------
neither this Warrant nor the Warrant Shares have been registered under the
Securities Act of 1933, as amended (the "Securities Act") and the holder of this
Warrant agrees that no sale, transfer, assignment, hypothecation or other
disposition of this Warrant or the Warrant Shares shall be made in the absence
of (a) current registration statement under the Securities Act as to this
Warrant or the Warrant Shares and the registration or qualification of this
Warrant or the Warrant Shares under any applicable state securities laws is then
in effect or (ii) an opinion of counsel reasonably satisfactory to the
Corporation to the effect that such registration or qualification is not
required. Each certificate or other instrument for Warrant Shares issued upon
exercise of this Warrant shall, if required under the Securities Act or the
rules promulgated thereunder, be imprinted with a legend substantially to the
foregoing effect.
8. Rights of the Holder: Investigation; Hart-Scott Rodino.
------------------------------------------------------
(a) The Corporation hereby grants to the holder of this Warrant those
rights set forth on Exhibit B attached hereto, the provisions of which are
---------
incorporated herein by reference and made a part hereof as if set forth herein
in their entirety.
(b) Anything contained herein to the contrary notwithstanding, the
shares of Preferred Stock or Common Stock issuable upon exercise of this Warrant
and the Common Stock issuable upon conversion of such shares of Preferred Stock
shall be entitled to all rights and benefits accorded thereto in any investor
rights or shareholders or similar agreement between and/or among the Corporation
and the holders of the Preferred Stock, and the Corporation shall take all
actions and shall execute and deliver all documents necessary or desirable,
including any amendments to such agreement(s) to make the holder a party
thereto.
(c) In connection with any exercise of the Warrant, the Corporation
will grant to AOL and its representatives reasonable access during regular
business hours to the Corporation and its officers, counsel, auditors, tax
returns, schedules and workpapers, and other books and records; full opportunity
to investigate the Corporation's title to property and the condition and nature
of its assets, business and liabilities; and reasonable opportunity to review
the Corporation's plans and prospects with key officers and employees of the
Corporation.
(d) The Corporation hereby covenants and agrees that if AOL is
required to file any Notification and Report Form (or any successor or
replacement form) relating to the exercise of this Warrant with the United
States Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), or such other successor agency or agencies as
applicable, then (A) the Corporation shall cooperate with AOL such filing and
shall take all
7
<PAGE>
actions and execute and deliver all documents necessary to effect such filing
and the expiration or early termination of the waiting period under the HSR Act
(the "Waiting Period"), (B) the holder of the Warrant shall pay one hundred
percent (100%) of the filing fee associated with any such filing and (C) the
Exercise Period shall be "tolled" and extended as the result of the continuation
of the Waiting Period.
9. Transfer of Warrant; Amendment. Subject to the restriction set forth in
------------------------------
Section 7, this Warrant, as to unvested Warrant Shares, and all rights hereunder
are transferable, in whole, or in part, only with the consent of the
Corporation; provided, however, that transfers of this Warrant (i) in whole or
--------- -------
in part, to subsidiaries or affiliates of the holder hereof, and (ii) with
respect to vested Warrant Shares, in each case, shall not require such consent.
Transfers shall be made at the agency or office of the Corporation referred to
in Section 2, by the holder hereof in person or by duly authorized attorney,
upon surrender of this Warrant properly endorsed. Each taker and holder of this
Warrant, by taking or holding the same, consents and agrees that this Warrant,
when endorsed, in blank, shall be deemed negotiable, and, when so endorsed the
holder hereof may be treated by the Corporation and all other persons dealing
with this Warrant as the absolute owner hereof for any purposes and as the
person entitled to exercise the rights represented by this Warrant, or to the
transfer hereof on the books of the Corporation, any notice to the contrary
notwithstanding; but until each transfer on such books, the Corporation may
treat the registered holder hereof as the owner hereof for all purposes.
10. Reorganizations. Etc. In case, at any time during the Exercise Period, of
--------------------
any capital reorganization, of any reclassification of the stock of the
Corporation (other than a change in par value or from par value to no par value
or from no par value to par value or as a result of a stock dividend or
subdivision, split-up or combination of shares), or the consolidation or merger
of the Corporation with or into another corporation (other than a consolidation
or merger in which the Corporation is the continuing operation and which does
not result in any change in the Common Stock) or of the sale of all or
substantially all the properties and assets of the Corporation as an entirety to
any other corporation, this Warrant shall, after such reorganization,
reclassification, consolidation, merger or sale, be exercisable for the kind and
number of shares of stock or other securities or property of the Corporation or
of the corporation resulting from such consolidation or surviving such merger or
to which such properties and assets shall have been sold to which such holder
would have been entitled if he had held the Preferred Stock issuable upon the
exercise of this Warrant or the Common Stock issuable upon conversion of the
Preferred Stock immediately prior to such reorganization, reclassification,
consolidation, merger or sale. In any such reorganization or other action or
transaction described above, appropriate provision shall be made with respect to
the rights and interests of the holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for adjustment of
the Warrant Price and of the number of shares purchasable and receivable upon
the exercise of this Warrant) shall thereafter be applicable, as nearly as may
be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise hereof.
11. Lost Stolen, Mutilated or Destroyed Warrant. If this Warrant is lost,
-------------------------------------------
stolen, mutilated or destroyed, the Corporation may, on such terms as to
indemnity or otherwise as it may in its discretion impose (which shall, in the
case of a mutilated Warrant, include the surrender thereof), issue a new Warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
8
<PAGE>
destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Corporation, whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
12. Modification and Waiver. This Warrant and any provision hereof may be
-----------------------
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
13. Notices. All notices, advices and communications to be given or otherwise
-------
made to any party to this Agreement shall be deemed to be sufficient if
contained in a written instrument delivered in person or by telecopier or duly
sent by first class registered or certified mail, return receipt requested,
postage prepaid, or by overnight courier, or by electronic mail, with a copy
thereof to be sent by mail (as aforesaid) within 24 hours of such electronic
mail, addressed to such party at the address set forth below or at such other
address as may hereafter be designated in writing by the addressee to the
addresser listing all parties:
(a) If to the Corporation, to:
CCBN.COM, Inc.
200 Portland Street
Boston, MA 02114
Attention: President
Telecopier:
With a copy to:
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
Attention: John D. Patterson, Jr., Esq.
and
(b) If to AOL as follows:
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166
Attention: General Counsel
Telecopier: (703) 265-2208
e-mail address: [email protected]
Or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance herewith. Any
such notice or communication shall be deemed to have been delivered and received
(i) in the case of personal delivery or delivery by
9
<PAGE>
telecopier, on the date of such deliver, (ii) in the case of nationally-
recognized overnight courier, on the next business day after the date when sent
and (ii) in the case of mailing, on the third business day following that on
which the piece of mail containing such communication is posted. As used in this
Section 14, "business day" shall mean any day other than a day on which banking
institutions in the Commonwealth of Virginia are legally closed for business.
14. Binding Effect on Successors; Survival. This Warrant shall be binding upon
--------------------------------------
any corporation succeeding the Corporation by merger, consolidation or
acquisition of all or substantially all of the Corporation's assets. All of the
obligations of the Corporation relating to the Preferred Stock issuable upon the
exercise of this Warrant or the Common Stock issuable upon conversion of the
Preferred Stock shall survive the exercise and termination of this Warrant. All
of the covenants and agreements of the Corporation shall inure to the benefit of
the successors and assigns of AOL.
15. Descriptive Headings and Governing Law. The description headings of the
--------------------------------------
several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the Commonwealth of Massachusetts.
16. Fractional Shares. No fractional shares shall be issued upon exercise of
-----------------
this Warrant. The Corporation shall, in lieu of issuing any fractional share,
pay the holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the then Fair Market Value of one Warrant Share.
***
10
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Stock Subscription
Warrant to be executed by their duly authorized officers on the date first above
written.
CCBN.COM, INC.
By: /s/ Jeffrey P. Parker
__________________________
Name: Jeffrey P. Parker
Title: Chairman & CEO
AMERICA ONLINE, INC.
By: /s/ Eric Keller
_________________
Name: Eric Keller
Title: VP-Business Affairs
11
<PAGE>
Form of Subscription
[To be signed upon exercise of Warrant]
The undersigned, the holder of the Warrant, hereby irrevocably elects
to exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, _________ shares of________ of CCBN.COM, Inc. and herewith makes
payment of $________ therefor, and requests that the certificates for such
shares be issued in the name of and delivered to, _____________________________,
whose address is _________________________________________.
Dated:______________
___________________________________
(Signature)
___________________________________
(Address)
12
<PAGE>
Notice of Exchange
(To be executed by the Holder in
order to exchange the Warrant.)
The undersigned hereby irrevocably elects to exchange this Warrant
into __________ shares (the foregoing number constituting the number of Warrant
Shares to be issued pursuant to Section 3 of this Warrant) of________ of
CCBN.COM, Inc., minus any shares to be deducted from the foregoing number in
accordance with the terms of this Warrant, according to the conditions thereof.
The undersigned desires to consummate such exchange on _________________.
Dated:
__________________________________
Name of Holder:
By:_______________________________
13
<PAGE>
Form of Assignment
[To be signed only upon transfer of Warrant]
For value received, the undersigned hereby sells, assigns and
transfers unto the right represented by the Warrant to purchase _______ shares
of_________ of CCBN.COM, Inc., to which the Warrant relates, and appoints
Attorney to transfer such right on the books of CCBN.COM, Inc., with full power
of substitution in the premises.
Dated:______________
___________________________________
(Signature)
Signed in the presence of:
_______________________________
14
<PAGE>
Confidential materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT A
----------
Number of Shares For Which the
Warrant Shall be Exercisable:
Subject to Sections 1(b) through (g) of the Warrant, the Warrant Shares shall
vest as follows:
EXAMPLE OF VESTING PER NUMBER OF IMPRESSIONS:
- --------------------------------------------------------------------------------
Vesting Period Vesting Definition of
"Qualified Amount"
- --------------------------------------------------------------------------------
From the date hereof the number of Warrant Shares The quotient of(i)
to the fifteen-month (in an amount up to, but not [**] divided
March 31, 2001 more than [**] shares -------
(the "First Vesting (subject to adjustment as by (ii) [**]
Period") provided in the Warrant)) --
that shall vest is equal to shares (subject to
the gross value of advertising adjustment as
sold by the Corporation provided in the
pursuant to the Agreement Warrant).
during the applicable Vesting
Period divided by the Qualified
----------
Amount (as defined in the
right hand column).
- --------------------------------------------------------------------------------
From April 1,2001 to the number of Warrant Shares The quotient of(i)
March 31,2002 (the (in an amount up to, but not [**]
"Second Vesting more than (A) [**] divided by (ii)
Period") shares (subject to adjustment ----------
as provided in the Warrant) [**] shares
minus (B) the number of (subject to
------ adjustment as
Warrant Shares which vested provided in the
in the First Vesting Period Warrant).
(subject to adjustment as
provided in the Warrant)) that
shall vest is equal to the gross
value of advertising sold by
the Corporation pursuant to
the Agreement during the
applicable Vesting Period
divided by the Qualified
----------
Amount (as defined in the
right hand column).
- --------------------------------------------------------------------------------
From April 1,2002 to the number of Warrant Shares The quotient of(i)
March 31, 2003 (in an amount up to, but not [**]
divided by (ii)
----------
- --------------------------------------------------------------------------------
A-1
<PAGE>
Confidential materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
- --------------------------------------------------------------------------------
more than (A) [**] [**] shares
shares (subject to adjustment (subject to
as provided in the Warrant) adjustment as
minus (B) the number of provided in
----- the Warrant).
Warrant Shares which vested
in the First Vesting Period and
the Second Vesting Period
(subject to adjustment as
provided in the Warrant)) that
shall vest is equal to the gross
value of advertising sold by
the Corporation pursuant to
the Agreement during the
applicable Vesting Period
divided by the Qualified
----------
Amount (as defined in the
right hand column).
- --------------------------------------------------------------------------------
(i) The "Warrant Price" for the first 250,000 vested Warrant Shares is
$16.10. The "Warrant Price" for each additional Warrant Share shall be a price
equal to the product of(A) the Fair Market Value (as defined below) of a share
of Common Stock as determined on a quarterly basis, beginning December 31, 1999
for each Warrant Share which vested during such quarter multiplied by (B) 0.90.
-------------
(ii) "Fair Market Value" for purposes of this Exhibit A is equal to
---------
(A) if the Common Stock of the Corporation is not then traded on a national
securities exchange but is quoted on the National Association of Securities
Dealers, Inc. Automated Quotation National Market System or the over-the-counter
market, the average of the closing prices quoted on the National Association of
Securities Dealers, Inc. Automated Quotation National Market System, if
applicable, or the average of the last bid and asked prices of the Common Stock
quoted in the over-the-counter-market; or (B) if the Common Stock is then traded
on a national securities exchange, the average of the high and low prices of the
Common Stock listed on the principal national securities exchange on which the
Common Stock is so traded, in each case for the last day of the preceding
quarter (beginning December 31, 1999) and the nineteen (19) trading days
immediately preceding such date or, if such date is not a business day on which
shares are traded, the next immediately preceding trading day or (C) in all
other circumstances, the fair market value per share of Common Stock shall be
determined by mutual agreement between the Corporation and the holder of this
Warrant, provided, that if no such mutual agreement can be reached within five
--------
business days after delivery of the Notice of Exchange referred to above, then
the fair market value per share of Common Stock shall be as determined by a
nationally recognized independent investment banking firm, jointly selected by
the Corporation and the holder of this Warrant or, if such selection cannot be
made within five business days thereof, then by a nationally recognized
independent investment banking firm selected by the American Arbitration
Association then obtaining, provided further, that the cost or expense of any
----------------
such investment banking firm shall be borne equally by the Corporation and the
holder of the Warrant.
A-2
<PAGE>
EXHIBIT C
---------
Preferred Stock for Which the Warrant is Exercisable
- --------------------------------------------------------------------------------
Warrant Shares to be Issued
Series of Preferred Stock In Such Series of Preferred Stock
- ------------------------- ---------------------------------
- --------------------------------------------------------------------------------
Series E-l First 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant.
- --------------------------------------------------------------------------------
Series E-2 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant)
during the period beginning on the date of
issuance of this Warrant and ending on March
31, 2000.
- --------------------------------------------------------------------------------
Series E-3 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on April 1, 2000 and
ending on June 30, 2000.
- --------------------------------------------------------------------------------
Series E-4 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on July 1, 2000 and
ending on September 30, 2000.
- --------------------------------------------------------------------------------
Series E-5 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on October 1, 2000 and
ending on December 31, 2000.
- --------------------------------------------------------------------------------
Series E-6 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on January 1, 2001 and
ending on March 31, 2001.
- --------------------------------------------------------------------------------
Series E-7 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on April 1, 2001 and
ending on June
- --------------------------------------------------------------------------------
C-1
<PAGE>
- --------------------------------------------------------------------------------
30, 2001.
- --------------------------------------------------------------------------------
Series E-8 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on July 1, 2001 and
ending on September 30, 2001.
- --------------------------------------------------------------------------------
Series E-9 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on October 1, 2001 and
ending on December 31, 2001.
- --------------------------------------------------------------------------------
Series E-l0 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on January 1, 2002 and
ending on March 31, 2002.
- --------------------------------------------------------------------------------
Series E-11 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on April 1, 2002 and
ending on June 30, 2002.
- --------------------------------------------------------------------------------
Series E-12 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on July 1, 2002 and
ending on September 30, 2002.
- --------------------------------------------------------------------------------
Series E-13 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on October 1, 2002 and
ending on December 31, 2002.
- --------------------------------------------------------------------------------
Series E-14 Warrant Shares which vest (other than the
first 250,000 Warrant Shares which vest
pursuant to the terms of this Warrant) during
the period beginning on January 1, 2003 and
ending on March 31, 2003.
- --------------------------------------------------------------------------------
C-1
<PAGE>
EXHIBIT B
---------
Additional Rights
1. Information Rights; Preemptive Rights; Other. AOL shall on or prior to the
--------------------------------------------
date hereof receive the information rights, preemptive rights and all other
rights pursuant to the Series E Stock Purchase Agreement dated as of the date
hereof among the Corporation, AOL and Thomson.
2. Registration Rights. AOL shall have the Registration Rights set forth in
-------------------
the Registration Rights Agreement, dated June 9, 1999, as amended and restated
on the date hereof (the "Registration Rights Agreement"), among the Corporation
and the Purchasers.
3. Co-sale Rights. AOL shall have the co-sale rights and all other rights set
--------------
forth in the Stockholders Agreement dated June 9, 1999, as amended and restated
on the date hereof (the "Stockholders Agreement"), among the Corporation and the
Stockholders (as defined therein).
C-2
<PAGE>
Anything contained herein to the contrary notwithstanding, if no Warrant
Shares vest during an applicable vesting period, then the numbered series of
preferred stock shall be adjusted accordingly. For example, if no Warrant Shares
vest during the period beginning July 1, 2002 and ending September 30, 2002,
then Warrant Shares which vest during the period beginning October 1, 2002 and
ending December 31, 2002 shall be exercisable for Series E-12 Preferred Stock
and not Series E-13 Preferred Stock.
C-3
<PAGE>
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT D
---------
AOL Competitors
"AOL Competitors" shall include any successor or assign, whether by
operation of law otherwise, of any of the listed entities.
This list shall be subject to amendment in writing by AOL from time to time
in its reasonable discretion.
On the date hereof the list of AOL Competitors is as follows:
CONFIDENTIAL
------------
AOL Competitors*
ISP's
[**]
PORTALS/SEARCH/ONLINE COMMERCE:
- -------------------------------
[**]
LOCAL CONTENT:
- --------------
[**]
SEARCH:
- -------
[**]
COMMUNICATIONS:
- ---------------
[**]
*This list is subject to revision and modification by AOL.
D-1
