<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 2000
REGISTRATION NO. 333-33414
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
RACKSPACE.COM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7389 75-2864797
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) Number)
</TABLE>
------------------------
RACKSPACE.COM, INC.
112 EAST PECAN STREET, SUITE 600
SAN ANTONIO, TEXAS 78205
TELEPHONE: (210) 892-4000
FACSIMILE: (210) 892-4329
(Address, including zip code, and telephone number, including area code, of the
registrant's principal executive offices)
------------------------------
GRAHAM M. WESTON
CHIEF EXECUTIVE OFFICER
112 EAST PECAN STREET, SUITE 600
SAN ANTONIO, TEXAS 78205
TELEPHONE: (210) 892-4000
FACSIMILE: (210) 892-4329
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
S. MICHAEL DUNN, P.C. JEFFREY A. CHAPMAN, ESQ.
MICHELLE KWAN MONTOYA, ESQ. SHARON M. COOPER, ESQ.
BROBECK, PHLEGER & HARRISON LLP VINSON & ELKINS L.L.P.
301 CONGRESS AVENUE 2001 ROSS AVENUE
SUITE 1200 3700 TRAMMEL CROW CENTER
AUSTIN, TEXAS 78701 DALLAS, TEXAS 75201-2925
TELEPHONE: (512) 477-5495 TELEPHONE: (214) 220-7700
FACSIMILE: (512) 477-5813 FACSIMILE: (214) 220-7716
</TABLE>
--------------------------
Approximate date of commencement of proposed sale to the public: as soon as
practicable after the effective date of this registration statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, 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. / /
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SUCH SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than the
underwriting discount, payable by us in connection with the sale of common stock
being registered under this registration statement. All amounts are estimates
except the SEC registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee........................................ $16,152
NASD fee.................................................... 7,000
Nasdaq National Market listing fee.......................... 95,000
Printing and engraving expenses............................. *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Blue sky fees and expenses.................................. *
Transfer agent fees......................................... *
Miscellaneous............................................... *
-------
Total................................................. $ *
=======
</TABLE>
- ------------------------
* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The following discussion assumes that our reorganization has occurred.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides,
in effect, that any person made a party to any action by reason of the fact that
he is or was our director, officer, employee or agent may, and in certain cases
must, be indemnified by us against, in the case of a non-derivative action,
judgments, fines, amounts paid in settlement and reasonable expenses (including
attorneys' fees) incurred by him as a result of such action, and in the case of
a derivative action, against expenses (including attorneys' fees), if in either
type of action he acted in good faith and in a manner he reasonably believed to
be in or not opposed to our best interests. This indemnification does not apply,
in a derivative action, to matters as to which it is adjudged that the director,
officer, employee or agent is liable to us, unless upon court order it is
determined that, despite such adjudication of liability, but in view of all the
circumstances of the case, he is fairly and reasonably entitled to indemnity for
expenses, and, in a non-derivative action, to any criminal proceeding in which
such person had reasonable cause to believe his conduct was unlawful.
Article VI of our Certificate of Incorporation provides that no director
shall be liable to us or our stockholders for monetary damages for breaches of
the director's fiduciary duties to the fullest extent permitted by the DGCL.
Reference is made to Section 8 of the underwriting agreement to be filed as
Exhibit 1.1 hereto, pursuant to which the underwriters have agreed to indemnify
our officers and directors against certain liabilities under the Securities Act
of 1933.
We intend to enter into Indemnity Agreements with each director and certain
of our officers, a form of which is filed as Exhibit 10.1 to this registration
statement. Pursuant to these agreements, we will be obligated, to the extent
permitted by applicable law, to indemnify these persons against all expenses,
judgments, fines and penalties incurred in connection with the defense or
settlement of any actions brought against them by reason of the fact that they
were our directors or officers or assumed
II-1
<PAGE>
certain responsibilities at our direction. We also intend to purchase directors'
and officers' liability insurance in order to limit our exposure to liability
for indemnification of directors and officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since our inception in December 1998, we have issued and sold unregistered
securities in the following transactions:
(1) On December 29, 1998, we issued 999,000 limited partner interests to our
founders and an entity affiliated with our executive officers. We also
issued 1,000 general partner interests to our general partner.
(2) On September 29, 1999 we issued 1,904,760 limited partner interests to an
entity affiliated with our executive officers upon the conversion of
outstanding indebtedness under a promissory note in the approximate amount
of $1.1 million.
(3) On November 30, 1999 we issued an aggregate of 2,766,667 limited partner
interests to entities affiliated with our executive officers and other
purchasers in a private placement for an aggregate purchase price of
$5.8 million. The purchase price for the limited partner interests consisted
of cash in the approximate amount of $4.6 million, a promissory note for
$750,000 and the conversion of principal outstanding under a promissory note
in the amount of $500,000. On November 30, 1999, we issued warrants to
Trango Capital, LLC and The Hamilton Companies LLC for 380,952 and 238,095
limited partner interests, respectively, for an aggregate exercise price of
$800,000 and $500,000, respectively. We also effected a 10-for-1 limited
partner interest split incident to this private placement.
(4) Commencing on January 1, 2000 through April 30, 2000, Graham Weston, Morris
Miller, Pat Condon and Dirk Elmendorf exercised their right to forgo salary
in exchange for options to acquire additional limited partner interests.
Pursuant to an agreement, these individuals have elected to forgo salary
during this four-month period, and receive options to acquire 47,956 limited
partner interests at $.01 per limited partner interest.
(5) On January 17, 2000 we issued 238,095 limited partner interests to an
investor pursuant to the exercise of a warrant for an aggregate purchase
price of $500,000. Effective the same date, we also issued 119,047 limited
partner interests to an investor for $250,000.
(6) On January 1, 2000 we issued options to two of our executive officers for an
aggregate of 271,672 limited partner interests at $2.10 per limited partner
interest.
(7) On February 15, 2000 we issued to our employees options to acquire an
aggregate of 107,171 limited partner interests at $3.33 per limited partner
interest. In addition we issued options to one of our executive officers for
an aggregate of 54,054 limited partner interests at $3.33 per limited
partner interest.
(8) On March 27, 2000, we issued an aggregate of 1,952,297 limited partner
interests to investors in a private placement for an aggregate purchase
price of $11.1 million. We also issued warrants for limited partner
interests. The limited partners of Tailwind Capital Partners 2000, L.P., an
investor in this private placement, are employees of Thomas Weisel Partners
LLC, an underwriter in this offering.
The above securities were offered and sold by the registrant in reliance
upon exemptions from registration pursuant to either (1) Section 4(2) of the
Securities Act of 1933, as amended, as transactions not involving any public
offering or (2) Rule 701 promulgated under the Securities Act of 1933, as
amended. No underwriters were involved in connection with the sales of
securities referred to in this Item 15, except as described in (8) above.
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<C> <S> <C>
1.1* -- Form of Underwriting Agreement.
3.1^ -- Certificate of Incorporation of Rackspace.com, Inc.
3.2^ -- Bylaws of Rackspace.com, Inc.
4.1^ -- Specimen Stock Certificate.
5.1* -- Opinion of Brobeck, Phleger & Harrison LLP.
10.1^ -- Form of Indemnity Agreement by and between Rackspace.com,
Inc. and each of its directors and executive officers.
10.2^ -- Lease Agreement between Rackspace, Ltd. and Santa Clara Land
Company dated February 22, 2000 for the premises located in
San Antonio, Texas.
10.3^ -- Confidential Anti-Dilution Agreement by and among Rackspace,
Ltd. and the investors named therein dated November 30, 1999
and Amendment thereto dated February 22, 2000.
10.4^ -- Credit Agreement between Rackspace, Ltd and Exeter
Financial, LC dated December 29, 1998.
10.5^ -- Support Agreement dated December 29, 1998 between Rackspace,
Ltd., Morris A. Miller, Graham M. Weston, Richard Yoo, Dirk
Elmendorf and Patrick Condon and First Amendment thereto
dated November 30, 1999 and Second Amendment thereto dated
February 22, 2000 and as amended by Exhibit 10.21.
10.6^ -- Employment Agreement between Rackspace, Ltd. and Richard Yoo
dated December 29, 1998.
10.7^ -- Employment Agreement between Rackspace, Ltd. and Dirk
Elmendorf dated December 29, 1998.
10.8^ -- Employment Agreement between Rackspace, Ltd. and Patrick
Condon dated December 29, 1998.
10.9^ -- Asset Purchase and Sale Agreement dated December 29, 1998
between Cymitar Technology Group, Inc., Richard Yoo, Dirk
Elmendorf and Patrick Condon.
10.10^ -- Transfer Agreement between Rackspace, Ltd., Richard Yoo,
Dirk Elmendorf and Patrick Condon dated December 29, 1998.
10.11^ -- Agreement of Limited Partnership of Rackspace, Ltd. dated
December 29, 1998, First Amendment dated September 29, 1999,
Second Amendment dated November 30, 1999, Third Amendment
dated February 22, 2000 and Fourth Amendment dated
March 27, 2000.
10.12^ -- Warrant between Rackspace, Ltd. and Trango Capital, LLC,
dated November 30, 1999.
10.13^ -- Registration Rights Agreement dated November 30, 1999
between Rackspace, Ltd. and the securityholders named
therein and Amendment thereto dated February 22, 2000 and
as amended by Exhibit 10.21.
10.14^ -- Promissory Note dated November 30, 1999 between Beaulieu
River Capital LC and Rackspace, Ltd. for $750,000.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<C> <S> <C>
10.15^ -- Second Financial Commitment between Rackspace, Ltd. and
Exeter Financial, LC dated September 29, 1999.
10.16^ -- 1999 Unit Option Plan.
10.17^ -- Form of Unit Option Agreement for Stock Unit Plan.
10.18* -- 2000 Stock Incentive Plan.
10.19* -- 2000 Employee Stock Purchase Plan.
10.20^ -- Promissory Note dated December 29, 1998 between Exeter
Financial, LC and Rackspace, Ltd. for $150,000.
10.21^ -- Agreement of Existing Partners of Rackspace Ltd. to
Facilitate Public Offering dated March 27, 2000 and form of
First Amendment thereto dated as May 10, 2000.
10.22^ -- Warrant between Rackspace, Ltd. and Norwest Venture
Partners, dated March 27, 2000.
10.23^ -- Warrant between Rackspace, Ltd. and Sequoia Capital
Franchise Fund dated March 27, 2000.
10.24^ -- Warrant between Rackspace, Ltd. and Sequoia Capital
Franchise Partners dated March 27, 2000.
10.25* -- Employment Agreement between Rackspace, Ltd. and Graham M.
Weston, dated May 1, 2000.
10.26* -- Employment Agreement between Rackspace, Ltd. and Morris A.
Miller, dated May 1, 2000.
10.27^ -- Employment Agreement between Rackspace, Ltd. and Lew
Moorman, dated April 26, 2000.
10.28^ -- Form of Registration Rights Agreement between Rackspace,
Ltd. and the security holders named therein, dated
November 30, 1999.
10.29+** -- Marketplace Agreement between Rackspace, Ltd. and Red Hat,
Inc., dated May 12, 2000.
10.30* -- Employment Agreement between Rackspace, Ltd. and Lanham
Napier
10.31* -- Employment Agreement between Rackspace, Ltd. and Andrew May
10.32* -- Employment Agreement between Rackspace, Ltd. and John J.
Miksa
21.1^ -- List of Subsidiaries.
23.1^ -- Consent of KPMG LLP.
23.2* -- Consent of Brobeck, Phleger & Harrison LLP (Included in
Exhibit 5.1).
24.1^ -- Powers of Attorney.
27.1^ -- Financial Data Schedule.
</TABLE>
- ------------------------
+ Filed herewith.
* To be filed by amendment.
^ Previously filed.
** Confidential treatment has been requested on portions of this document.
(b) Financial Statement Schedules
II-4
<PAGE>
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or the related notes.
ITEM 17. UNDERTAKINGS
The undersigned hereby undertakes to provide to the underwriters at the
closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons pursuant to
the DGCL, our Certificate of Incorporation, our Bylaws, the underwriting
agreement 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 one of our directors, officers, or
controlling persons in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with
the securities being registered hereunder, we will, unless in the opinion of our
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of 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.
II-5
<PAGE>
We hereby undertake that:
1. For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by 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 this offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, we
have duly caused Amendment No. 2 to this registration statement to be signed on
our behalf by the undersigned, thereunto duly authorized, in San Antonio, Texas,
on May 19, 2000.
<TABLE>
<S> <C> <C>
RACKSPACE.COM, INC.
By: /s/ GRAHAM M. WESTON*
-----------------------------------------
Graham M. Weston
Chief Executive Officer and Director
</TABLE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Amendment No. 2 to this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ GRAHAM M. WESTON* Chief Executive Officer and
- ------------------------------------------- Director (principal May 19, 2000
Graham M. Weston executive officer)
/s/ MORRIS A. MILLER*
- ------------------------------------------- President, Chief Operating May 19, 2000
Morris A. Miller Officer and Director
/s/ LANHAM NAPIER Chief Financial Officer
- ------------------------------------------- (principal accounting and May 19, 2000
Lanham Napier financial officer)
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ LANHAM NAPIER
--------------------------------------
Lanham Napier
ATTORNEY-IN-FACT
</TABLE>
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<C> <S> <C>
1.1* -- Form of Underwriting Agreement.
3.1^ -- Certificate of Incorporation of Rackspace.com, Inc.
3.2^ -- Bylaws of Rackspace.com, Inc.
4.1^ -- Specimen Stock Certificate.
5.1* -- Opinion of Brobeck, Phleger & Harrison LLP.
10.1^ -- Form of Indemnity Agreement by and between Rackspace.com,
Inc. and each of its directors and executive officers.
10.2^ -- Lease Agreement between Rackspace, Ltd. and Santa Clara Land
Company dated February 22, 2000 for the premises located in
San Antonio, Texas.
10.3^ -- Confidential Anti-Dilution Agreement by and among Rackspace,
Ltd. and the investors named therein dated November 30, 1999
and Amendment thereto dated February 22, 2000.
10.4^ -- Credit Agreement between Rackspace, Ltd and Exeter
Financial, LC dated December 29, 1998.
10.5^ -- Support Agreement dated December 29, 1998 between Rackspace,
Ltd., Morris A. Miller, Graham M. Weston, Richard Yoo, Dirk
Elmendorf and Patrick Condon and First Amendment thereto
dated November 30, 1999 and Second Amendment thereto dated
February 22, 2000 and as amended by Exhibit 10.21.
10.6^ -- Employment Agreement between Rackspace, Ltd. and Richard Yoo
dated December 29, 1998.
10.7^ -- Employment Agreement between Rackspace, Ltd. and Dirk
Elmendorf dated December 29, 1998.
10.8^ -- Employment Agreement between Rackspace, Ltd. and Patrick
Condon dated December 29, 1998.
10.9^ -- Asset Purchase and Sale Agreement dated December 29, 1998
between Cymitar Technology Group, Inc., Richard Yoo, Dirk
Elmendorf and Patrick Condon.
10.10^ -- Transfer Agreement between Rackspace, Ltd., Richard Yoo,
Dirk Elmendorf and Patrick Condon dated December 29, 1998.
10.11^ -- Agreement of Limited Partnership of Rackspace, Ltd. dated
December 29, 1998, First Amendment dated September 29, 1999,
Second Amendment dated November 30, 1999, Third Amendment
dated February 22, 2000 and Fourth Amendment dated
March 27, 2000.
10.12^ -- Warrant between Rackspace, Ltd. and Trango Capital, LLC,
dated November 30, 1999.
10.13^ -- Registration Rights Agreement dated November 30, 1999
between Rackspace, Ltd. and the securityholders named
therein and Amendment thereto dated February 22, 2000 and
as amended by Exhibit 10.21.
10.14^ -- Promissory Note dated November 30, 1999 between Beaulieu
River Capital LC and Rackspace, Ltd. for $750,000.
10.15^ -- Second Financial Commitment between Rackspace, Ltd. and
Exeter Financial, LC dated September 29, 1999.
10.16^ -- 1999 Unit Option Plan.
10.17^ -- Form of Unit Option Agreement for Stock Unit Plan.
10.18* -- 2000 Stock Incentive Plan.
10.19* -- 2000 Employee Stock Purchase Plan.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<C> <S> <C>
10.20^ -- Promissory Note dated December 29, 1998 between Exeter
Financial, LC and Rackspace, Ltd. for $150,000.
10.21^ -- Agreement of Existing Partners of Rackspace Ltd. to
Facilitate Public Offering dated March 27, 2000 and form of
First Amendment thereto dated as May 10, 2000.
10.22^ -- Warrant between Rackspace, Ltd. and Norwest Venture
Partners, dated March 27, 2000.
10.23^ -- Warrant between Rackspace, Ltd. and Sequoia Capital
Franchise Fund dated March 27, 2000.
10.24^ -- Warrant between Rackspace, Ltd. and Sequoia Capital
Franchise Partners dated March 27, 2000.
10.25* -- Employment Agreement between Rackspace, Ltd. and Graham M.
Weston, dated May 1, 2000.
10.26* -- Employment Agreement between Rackspace, Ltd. and Morris A.
Miller, dated May 1, 2000.
10.27^ -- Employment Agreement between Rackspace, Ltd. and Lew
Moorman, dated April 26, 2000.
10.28^ -- Form of Registration Rights Agreement between Rackspace,
Ltd. and the security holders named therein, dated
November 30, 1999.
10.29+** -- Marketplace Agreement between Rackspace, Ltd. and Red Hat,
Inc., dated May 12, 2000.
10.30* -- Employment Agreement between Rackspace, Ltd. and Lanham
Napier
10.31* -- Employment Agreement between Rackspace, Ltd. and Andrew May
10.32* -- Employment Agreement between Rackspace, Ltd. and John J.
Miksa
21.1^ -- List of Subsidiaries.
23.1^ -- Consent of KPMG LLP.
23.2* -- Consent of Brobeck, Phleger & Harrison LLP (Included in
Exhibit 5.1).
24.1^ -- Powers of Attorney.
27.1^ -- Financial Data Schedule.
</TABLE>
- ------------------------
+ Filed herewith.
* To be filed by amendment.
^ Previously filed.
** Confidential treatment has been requested on portions of this document.
<PAGE>
RED HAT.COM MARKETPLACE AGREEMENT
ORDER FORM
================================================================================
EFFECTIVE MAY 12, BILLING INITIAL 12 mo. CONTRACT PURCHASE
DATE: 2000 DATE: TERM: REF. NO.: ORDER NO.:
================================================================================
================================================================================
COMPANY: RED HAT:
Name: RACKSPACE Name: Red Hat, Inc.
-------------------------- -------------------------
Address 112 E. Pecan, Suite 600 Address: 2600 Meridian Parkway
-------------------------- -------------------------
San Antonio, TX 78205 Durham, NC 27713
-------------------------- -------------------------
-------------------------- -------------------------
COMPANY CONTACT: RED HAT CONTACT:
Name: QUINCY LEE Name: DEBRA GORDON
-------------------------- -------------------------
Phone: 210-326-3613 Phone:
-------------------------- -------------------------
Fax: Fax:
-------------------------- -------------------------
E-Mail: [email protected] E-Mail: [email protected]
-------------------------- -------------------------
================================================================================
COMPANY BILLING CONTACT: (IF DIFFERENT THAN ABOVE)
Name: Phone:
-------------------------- -------------------------
Address Fax:
-------------------------- -------------------------
E-Mail:
-------------------------- -------------------------
================================================================================
================================================================================
PRODUCT REVENUE SHARE:
Description of package: __TIER I PACKAGE_____________________________________
Commission: Subject to a refund if the Minimum Revenue Share Payable
Customer terminates prior to sixty (60) Over Term: $ __n/a - see
days, for the first *** new customers special payment terms__
obtained by Rackspace through the Red Hat Minimum Revenue Share Payable
website, a one-time payment to Red Hat of Per Month: $ __n/a - see
*** per new customer, and for each new special payment terms__
customer gained through the Red Hat web
site thereafter, a fee of ***.
PROMOTIONS: Red Hat will provide to Company the Promotions as set forth in the
Media Plan, Exhibit A.
================================================================================
INTEGRATION FEE:
Integration Fee Payable upon Effective Date: *** , which is payable for Red
Hat's estimated cost of integrating Company's Materials into the Red Hat sites
================================================================================
SPECIAL PAYMENT TERMS:
- - Additional *** payable at the beginning of the contract period.
- - *** payable at the end of the 6 month period of the Term
- - *** payable at the end of the 9 month period of the Term
*** Confidential portions omitted and filed separately with the Commission.
================================================================================
Red Hat, Inc. ("RED HAT") operates internet sites at www.redhat.com and other
similar Internet sites owned by Red Hat and intend to operate an Internet
site dedicated to the support of Linux-Registered Trademark- and other open
source products, services, news and other issues on www.redhat.com
(collectively, the "RED HAT SITE"). Company seeks opportunities to expand its
market reach and enable Red Hat End Users to view Company's products and
services, and to access and purchase such products and services from Company.
Both parties desire for Red Hat to make available on the Red Hat Site certain
of Company's information relating to its products, which will include text,
graphics, data, and HTML material supplied by Company, and for Red Hat to
link to Company's Internet Sites to enable End Users to access and purchase
the products from Company, all as set forth in this Agreement. In exchange
for the payments by Company for Customers obtained through the Red Hat
website, the Integration Fee and the Special Payment, Red Hat shall make
available to Company certain Promotions on the Red Hat Site as set forth
herein. This Order Form, which is issued pursuant and subject to the attached
Terms & Conditions ("TERMS & CONDITIONS"), shall become valid when executed
by Company and accepted by an authorized representative of Red Hat. The Order
Form, the Terms & Conditions, and any exhibits or addenda hereto, shall
collectively constitute the "AGREEMENT" between the parties. Capitalized
terms used in this Order Form and not otherwise defined have the meanings
ascribed to them in the Terms & Conditions. COMPANY AND RED HAT AGREE THAT
THE TERMS AND CONDITIONS OF THIS AGREEMENT SUPERCEDE ANY PROVISIONS OF ANY
COMPANY DRAFTED PURCHASE ORDER AND SUPERCEDE ALL PROPOSALS, WRITTEN OR ORAL,
AS WELL AS OTHER COMMUNICATIONS BETWEEN COMPANY AND RED HAT RELATING TO THIS
AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS ORDER FORM
AND THE TERMS & CONDITIONS, THE TERMS & CONDITIONS SHALL TAKE PRECEDENCE. IT
IS EXPRESSLY AGREED THAT UPON THE EXPIRATION OF THIS AGREEMENT, COMPANY SHALL
HAVE A RIGHT OF FIRST REFUSAL WITH RESPECT TO RENEWING AS A PREMIER PARTNER
IN THE "HOSTING CATEGORY."
- --------------------------------------------------------------------------------
ACCEPTED BY COMPANY: ACCEPTED BY RED HAT:
/s/ Morris A. Miller /s/ Walter McCormick
- -------------------------------------- --------------------------------------
SIGNATURE SIGNATURE
Morris A. Miller 5/12/00 Walter McCormick 5/14/00
- -------------------------------------- --------------------------------------
NAME DATE NAME DATE
Chief Operating Officer
- -------------------------------------- --------------------------------------
<PAGE>
TITLE
- --------------------------------------------------------------------------------
REDHAT.COM MARKETPLACE AGREEMENT
TERMS AND CONDITIONS
1. DEFINITIONS.
"END USER" means an end user who clicks on information concerning a
Product via the Red Hat Site and is linked to the Company Site for the purpose
of obtaining more information regarding, or purchasing, the Product.
"COMPANY" means the entity identified as such on the Order Form.
"COMPANY MATERIALS" means all materials delivered from Company to Red
Hat for use by Red Hat in accordance with this Agreement, including without
limitation text, graphics, data, and HTML materials regarding the Company, the
Products, pricing and delivery information, and such other related information
reasonably requested by Red Hat.
"COMPANY SITE" means the Company's Internet site to which Red Hat shall
place links from the Company Materials.
"COMPANY LINKS" means applicable URLs to the Company Site by which End
Users may purchase Products.
"PRODUCTS" means all the products and/or services offered by Company
during the term of this Agreement which are described in the Company Materials
provided from Company to Red Hat and which Red Hat agrees to display on the Red
Hat Site under this Agreement.
"DELIVERY SPECIFICATIONS" means the method, medium, format, and other
logistical parameters by which Company will deliver to Red Hat the Company
Materials, as provided by Red Hat to Company in writing.
"INTELLECTUAL PROPERTY RIGHTS" means patent rights, copyright rights
(including but not limited to rights in audiovisual works and moral rights),
trade secret rights, and any other intellectual property rights recognized by
the law of each applicable jurisdiction.
"PROMOTIONS" means the advertising promotions on the Red Hat Site
described on the Media Plan attached to this Agreement as Exhibit A.
"TRADEMARKS" means Company's trademarks, trade names, service marks,
service names, or logos associated with the Products.
2. LICENSE TO AND DELIVERY OF COMPANY MATERIALS.
2.1 LICENSE TO COMPANY MATERIALS AND MARKS. Subject to the terms and
conditions of this Agreement, Company hereby grants to Red Hat a royalty-free,
nonexclusive, non-transferable, license to use, reproduce, create derivative
works of, provide access to, publish, publicly display, publicly perform,
transmit and distribute the Company Materials in connection with the marketing
of Products on the Red Hat Site during the term of this Agreement; provided that
the manner in which the same are displayed shall be acceptable to the Company,
it being understood that the manner in which the Company Materials are displayed
and presented is the essential consideration for which Company is entering into
this Agreement. Red Hat's right to create derivative works of the Company
Materials is limited to formatting and displaying the Company Materials on the
Red Hat Site, in a manner which is acceptable to the Company. Subject to the
terms and conditions of this Agreement and normal trademark guidelines to the
extent provided by Company to Red Hat from time to time, Company hereby grants
to Red Hat a royalty-free, non-exclusive, non-transferable, worldwide license to
use Company's Trademarks within the Red Hat Site in connection with the Content
during the term of this Agreement, but only in a manner which is acceptable to
the Company. Except as provided herein, Company shall retain any and all rights
Company may have in the Company Materials and Trademarks, including without
limitation all Intellectual Property Rights therein. In order to ensure that the
foregoing is achieved, from the onset of this project, representatives of both
Red Hat and the Company will work together to determine the manner in which the
Company Materials will be displayed, consistent with the terms of this
Agreement.
2.2 DELIVERY OF COMPANY MATERIALS; UPDATES. Promptly after the
Effective Date, Company shall deliver all Company Materials and Company Links
(current as of the Effective Date) to Red Hat for use to market the Products
and/or provide Promotions, as applicable, on the Red Hat Site. All deliveries of
the Company Materials shall be in accordance with the Delivery Specifications.
If Company discontinues the sale of any of the Products, or the pricing offered
by Company, or other information for the Products changes during the term of
this Agreement, then Company shall provide updated Company Materials to Red Hat
promptly upon such changes and Red Hat will, subject to Company's approval
rights, promptly make the necessary changes on the Red Hat sites.
2.3 LIMITED LICENSE IN RED HAT TRADEMARKS. Solely for the duration of
this Agreement and solely for the purpose of providing a link from the Company
Site to the Red Hat Site, Red Hat hereby grants Company a royalty-free,
non-exclusive, non-transferable, worldwide license to use, in a manner
consistent with Red Hat's Trademark Usage Guidelines, either or both of the
Company's RED HAT mark or Shadow Man Logo mark as icons for the link from the
Company Site to the Red Hat Site. Company shall use these Red Hat marks for no
other purpose, shall not combine these Red Hat marks with any other mark, and
shall not use these Red Hat marks in any manner which would reflect negatively
upon Red Hat.
3. DISPLAY OF COMPANY MATERIALS FOR PRODUCTS; PROMOTION DELIVERY. Red Hat agrees
to display the Company Materials on the Red Hat Site, in a manner which is
acceptable to both Red Hat and the Company. Red Hat agrees to display the
Company Materials on the Red Hat Site in a manner which is consistent with the
manner in which Red Hat displays the materials of other vendors which Red Hat
has designated as Tier I Partners. In performing its duties under this
Agreement, Red Hat will make no representations, warranties or guarantees with
respect to Company or the Products that are inconsistent with those customarily
provided by Company in the Company Materials. The foregoing restriction will not
limit Red Hat's ability to make editorial statements regarding Company or
Products. The Promotions will be delivered substantially in accordance with the
Media Plan set forth on EXHIBIT A, as may be changed from time to time by mutual
agreement of the parties. Notwithstanding the foregoing, Red Hat will work in
good faith to accommodate Company's requests with respect to the Promotions, but
Red Hat will have final approval of the timing, type, content, number and
placement of all Promotions on all Red Hat Site. Company will design any
graphics and other materials required for the Promotions, will supply digital
copies of such materials to Red Hat, and will notify Red Hat if and when any
materials previously delivered are no longer relevant or appropriate as material
for use in Promotions. Such materials will be designed and delivered in
accordance with Red Hat's reasonable technical and editorial guidelines, as then
generally in effect. Red Hat will provide reasonable assistance to Company in
connection with the design and delivery of such materials.
4. REFERRALS OF END USERS AND FULFILLMENT.
4.1 REFERRALS. Red Hat shall establish links from the Red Hat Site to
the Company Site in such a manner that a End User who desires to purchase a
Product may link to the specific product page on the Company Site where the
Product may be purchased.
4.2 RESPONSIBILITY FOR PRODUCTS. Company acknowledges and agrees that,
as between Company and Red Hat, Company will be solely responsible for any
claims or other losses associated with or resulting from the Company Materials,
Promotions or the Company products or services, including without limitation any
warranty, return or support obligations related to the Products. Company agrees
to offer the Products to users of the Company Site on the terms described in the
then-current Company Materials. Company acknowledges and agrees that Red Hat
does not intend to, and will not be required to, edit or review for accuracy any
of the Company Materials. Company will provide Red Hat with the name and contact
information of an individual who will act as a point of contact between Red Hat
and the Company on all End User service issues, and Company will update such
information from time to time as necessary.
4.3 FULFILLMENT. All sales of Products shall be directly between End
User and Company. Company will be responsible for ensuring that each URL
provided to Red Hat for use in a Promotion or Company Link for a Product takes
the user to the appropriate area within the Company Site. Company will provide
to users coming to the Company Site from the Red Hat Site at least the same
level of service as is offered to users coming directly to the Company Site.
Notwithstanding the foregoing, in all events Company will use commercially
reasonable efforts to (a) convey clear and accurate information to users
regarding product price, availability, description, shipping charges, order
policy, return policy, sales tax policy, and other types of information
generally offered by Company's competitors, (b) post Company's terms of sale in
clear language on a page that is easily accessible to all users, and (c) deliver
all orders within a reasonable time.
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IF ANY OF THE STANDARDS SET FORTH ABOVE ARE NOT MET BY COMPANY, THEN RED HAT MAY
IMMEDIATELY REMOVE ANY OR ALL LINKS TO THE COMPANY SITE, AT RED HAT'S SOLE
DISCRETION, UNTIL COMPANY ADEQUATELY DEMONSTRATES TO RED HAT THAT THE COMPANY'S
BUSINESS PRACTICES AND/OR THE COMPANY SITE IS IN FULL COMPLIANCE; PROVIDED,
HOWEVER, THAT COMPANY'S FAILURE TO REMEDY SUCH PROBLEM WITHIN 30 DAYS WILL BE
DEEMED A MATERIAL BREACH OF THIS AGREEMENT. FURTHER, IF THE COMPANY SITE FAILS
TO OPERATE FULLY AND FUNCTIONALLY IN ANY MATERIAL RESPECT FOR ANY PERIOD OF
SIXTY OR MORE CONSECUTIVE MINUTES, EVEN IF OTHERWISE IN COMPLIANCE WITH THE
PERFORMANCE STANDARDS, RED HAT MAY IMMEDIATELY REMOVE ANY OR ALL LINKS TO THE
COMPANY SITE AT RED HAT'S SOLE DISCRETION UNTIL SUCH TIME AS COMPANY NOTIFIES
RED HAT THAT SUCH COMPANY SITE HAS RESUMED ACCEPTABLE OPERATION. THESE REMEDIES
ARE FOR RED HAT'S EDITORIAL PURPOSES AND IN NO WAY LIMIT RED HAT'S ABILITY TO
TERMINATE THIS CONTRACT OR PURSUE ANY OTHER REMEDIES HEREUNDER IN THE EVENT THE
PERFORMANCE STANDARDS SET FORTH HEREIN ARE NOT MET.
5. PAYMENTS.
5.1 PAYMENT AMOUNTS. Except as otherwise set forth in the Order Form,
the payment terms of this Section 5 shall apply. Company will pay the
Integration Fee on the Order Form upon the Effective Date. During the Term, Red
Hat will receive commissions on Sales as set forth in the Order Form for all
purchases of Products as set forth in this Agreement. "Sales" is defined as the
dollar amount of purchases of Products by the End User arriving from the Red Hat
Site via the Company Links. Company will pay Red Hat, no later than the
fifteenth (15th) day after the end of each month during the Term.
5.2 INTEREST, TAXES. Amounts remaining owing after the due date will
bear interest at the rate of one percent (1%) per month (or the maximum rate
permitted by law, if less). If Company fails to timely make any payment due
hereunder, Company will be responsible for all reasonable expenses (including
attorneys' fees) incurred by Red Hat in collecting such amounts. Company will be
responsible for all taxes associated with the payments required hereunder
(except for taxes based on Red Hat's net income). Failure by the Company to make
the payments required, within ten (10) business days after receipt of written
notice of late payment (notice and opportunity to cure), will be deemed a
material breach of this Agreement and Red Hat will have the option to
immediately remove the Company from any or all Red Hat Site and may pursue other
remedies at Red Hat's sole discretion. Upon being removed from the Red Hat Site
for nonpayment, Company agrees that it will be liable to Red Hat for any unpaid
fees.
5.3 REPORTS; AUDIT. Company will maintain complete records, contracts
and accounts during and for one (1) year after the termination or expiration of
this Agreement, regarding the sale of the Products to each End User under this
Agreement. Within fifteen (15) days after the close of each month, Company will
deliver to Red Hat a report which will provide all information reasonably
necessary for computation and/or confirmation of the payments, if any, due or
credited to Red Hat for such monthly period. An independent certified public
accountant selected by Red Hat (subject to Company's reasonable approval) may,
upon reasonable notice and during normal business hours, inspect the records of
Company on which such reports are based. If, upon performing such audit, it is
determined that Company has underpaid Red Hat by an amount greater than five
percent (5%) of the payments due Red Hat in the period being audited, Company
will bear all reasonable expenses and costs of such audit in addition to its
obligation to make full payment under Section 5.
6. OWNERSHIP. As between the parties, Company will retain all right, title, and
interest in and to the Company Material and the Company Trademarks worldwide,
including without limitation ownership of all copyrights and other Intellectual
Property Rights therein. As between the parties, Red Hat will retain all right,
title, and interest in and to the Red Hat Site (except for the Company
Materials) worldwide, including without limitation ownership of all copyrights,
look and feel, and other Intellectual Property Rights therein.
7. CONFIDENTIALITY. In connection with the activities contemplated by this
Agreement, each party may have access to confidential or proprietary technical
or business information of the other party, including without limitation (a)
proposals, ideas or research related to possible new products or services; (b)
financial statements and other financial information; (c) any reporting
information herein; and (d) the material terms of the relationship between the
parties; provided, however, that such information will be considered
confidential only if it is conspicuously designated as "Confidential" or if
provided orally, identified at the time of disclosure and confirmed in writing
within 30 days of disclosure (collectively, "CONFIDENTIAL INFORMATION"). Each
party will take reasonable precautions to protect the confidentiality of the
other party's Confidential Information, which precautions will be at least
equivalent to those taken by such party to protect its own Confidential
Information. Except as required by law (including the securities laws) or as
necessary to perform under this Agreement, neither party will knowingly disclose
the Confidential Information of the other party or use such Confidential
Information for the benefit of any third party. Each party's obligations in this
Section with respect to any portion of the other party's disclosed Confidential
Information will terminate when the party seeking to avoid its obligation under
such Paragraph can document that such disclosed Confidential Information: (i)
was in the public domain at or subsequent to the time it was communicated to the
receiving party ("RECIPIENT") by the disclosing party ("DISCLOSER") through no
fault of Recipient; (ii) was rightfully in Recipient's possession free of any
obligation of confidence at or subsequent to the time it was communicated to
Recipient by Discloser; (iii) was developed by employees or agents of Recipient
independently of and without reference to any information communicated to
Recipient by Discloser; (iv) was communicated by the Discloser to an
unaffiliated third party free of any obligation of confidence; or (v) was in
response to a valid order by a court or other governmental body, was otherwise
required by law or was necessary to establish the rights of either party under
this Agreement; provided, however, that both parties will stipulate to any
orders necessary to protect said information from public disclosure.
8. TERM AND TERMINATION.
8.1 TERM AND TERMINATION. The term of this Agreement will begin on the
Effective Date and will continue for the Initial Term set forth on the Order
Form, at which time it shall terminate. Either party may terminate this
Agreement if the other party materially breaches its obligations hereunder and
such breach remains uncured for thirty (30) days following the written notice to
the breaching party of the breach.
8.2 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement for any reason, all payments that have accrued prior to termination or
expiration of this Agreement will be payable in full within thirty (30) days
thereof, and Red Hat shall promptly cease all use of the Company Material and
Company Trademarks. Sections 5, 6, 7, 8, 9, 10, and 13 shall survive any
termination of this Agreement.
9. WARRANTY; INDEMNITY. Each party to this Agreement represents and
warrants to the other party that (i) such party has all necessary
right, power and authority to enter into this Agreement and to perform
the acts required of it hereunder, (ii) the entry into 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 of such
party or by which such party is bound, and (iii) any materials provided
hereunder to the other do not violate any third party's intellectual
property rights, including copyright, trademark, or patent rights.
Company represents and warrants to Red Hat that each Promotion and any
Company Site accessible through any hypertext link included within
Promotion or an Company Link (i) does not infringe any intellectual
property, publicity or privacy rights of any third party, (ii) is not
defamatory, (iii) is not lewd, pornographic or obscene, (iv) is in
material compliance with all (and does not violate any) applicable
laws, and (v) does not contain any virus, worm, "trojan horse ", time
bomb or similar contaminating or destructive feature. Company agrees to
indemnify, defend and hold harmless Red Hat and its affiliates, and
their respective officers, agents and employees, from and against any
and all loss, liability and expense (including reasonable attorneys'
fees) suffered or incurred by reason of any claims, proceedings or
suits based on or arising out of (i) any breach of the foregoing
representations and warranties; or (ii) the contents or subject matter
of any Company Materials, Promotions or other data provided by Company
to Red Hat, including without limitation claims for defamation,
violation of rights of publicity and/or privacy, copyright
infringement, and trademark infringement. RED HAT REPRESENTS AND
WARRANTS THAT IT WILL USE COMMERCIALLY REASONABLE EFFORTS TO KEEP THE
RED HAT SITE ON LINE FOR THE TERM OF THIS AGREEMENT. TO THE EXTENT THAT
THE RED HAT SITE (OR ANY
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PART THEREOF) IS NOT ON-LINE FOR THE FULL TERM OF THIS AGREEMENT
(FOR WHATEVER REASON, INCLUDING REASONS OF FORCE MAJEURE), THIS
AGREEMENT SHALL BE EXTENDED FOR SUCH PERIOD OF TIME AS IS EQUAL TO
THE AMOUNT OF TIME THAT SUCH SITES WERE NOT FULLY ON-LINE; PROVIDED,
HOWEVER, AN AGGREGATE UP-TIME RATE OF NINETY-FIVE PERCENT (95%) OR
BETTER DURING THE TERM SHALL BE DEEMED BEING ON-LINE FOR THE FULL
TERM.] EXCEPT AS EXPRESSLY SET FORTH HEREIN (including Exhibit A),
EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT MADE ANY
REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR
ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING
FROM OR RELATED TO THESE TERMS AND CONDITIONS, THE AGREEMENT, OR ANY
INSERTION ORDER IN EFFECT BETWEEN RED HAT AND COMPANY FROM TIME TO
TIME, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED
CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO
THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED, NEITHER RED HAT NOR COMPANY WILL HAVE ANY
LIABILITY TO THE OTHER FOR ANY INTERNET OR TELECOMMUNICATIONS FAILURE,
COMPUTER VIRUS, THIRD PARTY INTERFERENCE OR OTHER THIRD PARTY SOFTWARE
OR HARDWARE THAT MAY INTERRUPT OR DELAY ACCESS TO ANY INTERNET SITE OR
CAUSE OTHER PROBLEMS OR LOSSES (COLLECTIVELY, A "NETWORK FAILURE").
NEITHER PARTY WILL BE LIABLE FOR ANY DELAY OR FAILURE TO FULFILL ITS
OBLIGATIONS HEREUNDER THAT RESULTS FROM AN ACT OF GOD, WAR, CIVIL
DISTURBANCE, COURT ORDER, LEGISLATIVE OR REGULATORY ACTION,
CATASTROPHIC WEATHER CONDITION, EARTHQUAKE, NETWORK FAILURE OR OTHER
CAUSE BEYOND ITS REASONABLE CONTROL. THE LIABILITY OF RED HAT FOR
DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT OF TORT OR
ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS
DUE HEREUNDER.
11. REPORTS AND STATISTICS FROM RED HAT. Red Hat will provide Company with
various reports and statistics generally provided to other advertisers
in a format determined by Red Hat, including without limitation the Red
Hat Promotion Report. Red Hat will use commercially reasonable efforts
to assure that such reports are reasonably accurate. Company will treat
all such reports and the terms of this Agreement as Confidential
Information hereunder and may not distribute or disclose such reports,
statistics or terms to any third party without Red Hat's prior written
consent. Red Hat makes no guarantees regarding the accuracy,
reliability or completeness of any reports or statistics provided to
Company. Company acknowledges that the statistics provided on the Red
Hat Promotion Report are the official, definitive measurement of Red
Hat's performance on any delivery obligations described in the
Agreement. No other measurements or usage statistics (including those
of Company or a third-party advertisement server) will be accepted by
Red Hat or have bearing on this Agreement. Company acknowledges that
Red Hat's log files contain proprietary and highly confidential
information about Red Hat and other advertisers, and that neither
Company nor its agents may view such log files..
12. ADVERTISING GUIDELINES. Company will be solely responsible for
delivering to Red Hat all materials for the Promotions in accordance
with Red Hat's policies and standard advertising specifications
("ADVERTISING SPECIFICATIONS"), as may be reasonably amended from time
to time. The content and format of each Promotion must comply in all
material respects with the Advertising Specifications. The term of the
Promotion will be a minimum of 30 days and require a minimum 7-day lead
time. Red Hat reserves the right to charge Company, at the advertising
rate specified in the Agreement, for reserved space held by Red Hat
pending receipt of acceptable materials from Company which are past
due.
13. GENERAL. Neither party may assign this Agreement, in whole or in part,
without the other party's written consent, which consent shall not be
unreasonably withheld, except that either party may assign this
Agreement without the other's consent in the case of a reorganization,
merger, consolidation, or sale of all or substantially all of its
assets. Any attempt to assign this Agreement other than as permitted
above will be null and void. This Agreement will be governed by and
construed in accordance with the laws of the State of North Carolina
without regard to its conflicts of laws principles. Any notice under
this Agreement will be in writing and delivered by personal delivery,
express courier, confirmed facsimile, confirmed e-mail, or certified or
registered mail, return receipt requested, and will be deemed given
upon personal delivery, one (1) day after deposit with express courier,
five (5) days after deposit in the mail, or upon confirmation of
receipt of facsimile or e-mail. Notices will be sent to a party at its
address set forth above or such other address as that party may specify
in writing pursuant to this Section. This Agreement is the complete and
exclusive agreement between the parties with respect to the subject
matter hereof, superseding any prior agreements and communications
(both written and oral) regarding such subject matter. This Agreement
may only be modified, or any rights under it waived, by a written
document executed by both parties. If for any reason a court of
competent jurisdiction finds any provision or portion of this Agreement
to be unenforceable, that provision of the Agreement will be enforced
to the maximum extent permissible so as to effect the intent of the
parties, and the remainder of this Agreement will continue in full
force and effect. Failure of either party to insist on strict
performance of any of the terms and conditions herein shall not be
deemed a waiver of any rights or remedies that either party shall have
and shall not be deemed a waiver of any subsequent default of the terms
and conditions thereof. This Agreement may be executed in multiple
counterparts, each of which, when so executed, shall be deemed to be an
original copy hereof, and all such counterparts together shall
constitute one single agreement. Each party under this Agreement shall
be an independent contractor to the other and not an employee, partner,
or joint venturer of or with the other party. Company agrees that it
will have no right to control or direct the details, manner, or means
by which Red Hat accomplishes the results of its obligations under this
Agreement. Neither party shall have any authority to bind the other in
any way.
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EXHIBIT A
MEDIA PLAN
FOR RACKSPACE
IT IS UNDERSTOOD THAT THE TERMS STATED BELOW ARE MADE A PART OF THE REDHAT.COM
MARKETPLACE AGREEMENT, AND THAT THE TERMS STATED BELOW WILL GOVERN IN THE EVENT
OF ANY CONFLICT.
PREMIER PARTNER PROMOTIONS:
- SOLUTIONS SHOWCASE (WITH 5 WEB PAGES) -This offering allots a series of
web pages for the sponsor to detail all of their Linux and open
source-based solutions. Customers and channel partners alike will be able
to read about all of Rackspace's offerings in one place. Links to the
sponsor-branded Solution Showcase will be prominently placed on the
Marketplace homepage and on the Hosting Channel homepage.
- - 3 PRODUCT SPOTLIGHTs - Each spotlight highlights Rackspace's products with
descriptions that give extensive purchasing and researching functionality.
Spotlights are offered from solution-specific sections of the Marketplace.
This offering includes an embedded online configurator and/or (at Company's
option) links to the Company's web pages, that drives the purchase of the
product. SEE AN EXAMPLE: CLICK ON THE "PRODUCT SPOTLIGHT" LINK ON THE
LEFT-HAND SIDE FROM http://demo.soma.redhat.com/osm/.
- - 1 PREMIER PLACEMENT ON THE HOSTING CHANNEL HOME PAGE - Premier placements
in the hosting channel gives Rackspace top-level exposure in the manner and
placement as exists on the date of this Agreement. This placement rotates
equally with placements from hosting partners with Tier I sponsorships.
- - 3 PREMIER LISTINGS IN A CATEGORIES - Premier listings gives Rackspace
highly targeted marketing in each of three categories of the hosting
channel. SEE AN EXAMPLE: CLICK ON THE "CATEGORY LISTINGS" LINK ON THE
LEFT-HAND SIDE FROM http://demo.soma.redhat.com/osm/. NOTE THE LARGER
PLACEMENTS UNDER THE CATEGORY HEADINGS.
- - 1 BANNER SPOTLIGHT - Rackspace will receive exposure for their brand in the
banner spotlight section of the Marketplace. The brand spotlight section
will be accessible from the homepage of the Marketplace. Red Hat is using
commercially reasonable efforts to complete this by May 30, 2000, but in no
event will it not be completed by July 1, 2000.
- - PLACEMENT IN THE NEW PRODUCTS SECTION FOR 1 MONTh - When the New Products
section is available, Rackspace will have the right to have one new product
featured in the New Products section for a one-month period. Red Hat is
using commercially reasonable efforts to complete this by May 30, 2000, but
in no event will it not be completed by July 1, 2000.
- - BANNER ADVERTISING CAMPAIGN - Rackspace will receive 400,000 impressions
per month of banner advertisements. 50% of the impressions will be served
on the home page of redhat.com and 50% of the impressions will run-of-site.
The banner advertisement will point to Rackspace's presence in the
Marketplace.
- - PREMIER PLACEMENT FROM NETSCAPE BUTTON BAr - Rackspace will receive a
premier placement on redhat.com. This placement will be accessible from an
appropriately labeled button on the "button bar" of Netscape Navigator
shipped with Red Hat Linux. This web page with this placement will feature
Rackspace along with other premier hosting partners and be distinct from
Rackspace's aforementioned placements on the Marketplace. This benefit will
be in effect for the full term of this agreement.
IT IS UNDERSTOOD THAT COMPANY HAS THE RIGHT TO MAKE CHANGES IN THE CONTENT
PROVIDED TO RED HAT IN ORDER TO (i) IMPROVE COMPANY'S PRESENTATION
(ACKNOWLEDGING THAT COMPANY ATTEMPTED TO PROVIDE CONTENT AS QUICKLY AS POSSIBLE
AND THAT CHANGES THEREFORE MAY BE NECESSARY, AND (ii) REFLECT CHANGES WHICH
OCCUR IN THE COMPANY'S BUSINESS.
5
