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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
--- EXCHANGE ACT OF 1934
For the quarterly period ending March 31, 1997
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
--- EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-11797
Infoseek Corporation
(Exact name of registrant as specified in its charter)
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<S> <C>
CALIFORNIA 77-00353450
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification Number)
</TABLE>
2620 AUGUSTINE DRIVE, SUITE 250
SANTA CLARA, CA 95054
(Address of principal executive offices)
408-567-2700
(Registrant's telephone number, including area code)
Check whether the registrant: (1) filed all reports required to be filed by
Section 13 or 15 (d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes No X
--- ---
As of April 30, 1997, there were 26,031,562 shares of the registrant's common
stock outstanding.
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<CAPTION>
PAGE
PART I FINANCIAL INFORMATION NUMBER
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ITEM 1: Financial Statements
Condensed Balance Sheets as of March 31, 1997
and December 31, 1996.............................. 3
Condensed Statements of Operations for the Three
Months Ended March 31, 1997 and 1996............... 4
Condensed Statements of Cash Flows for the three
Months Ended March 31, 1997 and 1996............... 5
Notes to Condensed Financial Statements........................ 6
ITEM 2: Management's Discussion and Analysis of Financial Conditions
and Results of Operations...................................... 8
PART II OTHER INFORMATION
ITEM 6: Exhibits and Reports on Form 8-K
Signatures ............................................................... 19
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PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
INFOSEEK CORPORATION
CONDENSED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
----------- ------------
ASSETS (UNAUDITED)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 4,267 $ 3,786
Short-term investments 38,267 42,867
Accounts receivable, net 2,824 2,428
Other current assets 480 371
-------- --------
Total current assets 45,838 49,452
Property and equipment, net 7,639 7,587
Investments 750 ---
Deposits and other assets 2,169 1,293
-------- --------
Total assets $ 56,396 $ 58,332
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,243 $ 3,269
Accrued payroll and related expenses 949 1,362
Accrued royalties 538 311
Other accrued liabilities 690 759
Deferred revenue 1,744 760
Short-term obligations 1,031 994
-------- --------
Total current liabilities 7,195 7,455
Long-term obligations 3,762 1,892
Shareholders' equity:
Preferred stock --- ---
Common stock 74,038 73,754
Accumulated deficit (24,877) (20,771)
Deferred compensation (3,270) (3,546)
Notes receivable from shareholders (452) (452)
-------- --------
Total shareholders' equity 45,439 48,985
-------- --------
Total liabilities and shareholders' equity $ 56,396 $ 58,332
======== ========
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See notes to condensed financial statements.
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INFOSEEK CORPORATION
CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
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<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1997 1996
-------- --------
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Total revenues $ 6,151 $ 1,731
Cost of revenues 1,284 690
-------- --------
Gross profit 4,867 1,041
Operating expenses:
Research and development 1,592 934
Sales and marketing 6,453 2,757
General and administrative 1,333 860
-------- --------
Total operating expenses 9,378 4,551
Operating loss (4,511) (3,510)
Interest income (expense), net 405 (58)
-------- --------
Net loss $ (4,106) $ (3,568)
======== ========
Net loss per share (Pro forma in 1996) $ (0.16) $ (0.14)
Shares used in computing net
loss per share (Pro forma in 1996) 26,127 25,914
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See notes to condensed financial statements.
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INFOSEEK CORPORATION
CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1997 1996
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (4,106) $ (3,568)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization 1,250 332
Amortization of unearned compensation related to stock options 276 387
Changes in assets and liabilities:
Accounts receivable (396) (360)
Other current assets (109) (192)
Accounts payable (1,026) (182)
Accrued payroll and related expenses (413) 194
Accrued royalties 227 883
Other accrued liabilities (69) 431
Deferred revenue 984 ---
-------- --------
Net cash used in operating activities (3,382) (2,075)
INVESTING ACTIVITIES
Purchase of short-term investments (11,151) ---
Proceeds from sales and maturities of available-
for-sale investments 15,751 497
Increase in deposits and other assets (876) ---
Investment in Hoovers (750) ---
Purchases of property and equipment (1,302) (1,248)
-------- --------
Net cash provided by (used) in investing activities 1,672 (751)
FINANCING ACTIVITIES
Proceeds from term loan 2,144 2,573
Repayments of term loan (237) (95)
Payments of deposit on term loan --- (668)
Proceeds from sale of common stock, net 284 10,001
-------- --------
Net cash provided by financing activities 2,191 11,811
-------- --------
Net increase in cash and cash equivalents 481 8,985
Cash and cash equivalents at beginning of period 3,786 1,129
-------- --------
Cash and cash equivalents at end of period $ 4,267 $ 10,114
======== ========
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SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES
Unearned compensation related to stock options amounted to $3,102 for the
three months ended March 31, 1996. There was no unearned compensation for the
three months ended March 31, 1997. Cash Paid for interest expense amounted to
$112 and $64 for the three months ended March 31, 1997 and 1996.
See notes to condensed financial statements.
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INFOSEEK CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The financial information included herein, except for the December
31,1996 balance sheet, which was derived from audited financial statements, have
been prepared by the Company in accordance with generally accepted accounting
principles and reflect all adjustments, consisting only of normal recurring
accruals which in the opinion of management are necessary to fairly state the
Company's financial position, results of operations, and cash flows for the
periods presented. These financial statements should be read in conjunction with
the Company's audited financial statements included in the Company's Annual
Report. The results of operations for the three months ended March 31, 1997 are
not necessarily indicative of the results to be expected for any future periods.
2. NET LOSS PER SHARE
Net loss per share is computed using the weighted average number of
shares of common stock outstanding. Pursuant to the Securities and Exchange
Commission Staff Accounting Bulletins, convertible preferred stock, redeemable
convertible preferred stock, common stock and common equivalent shares (options
and warrants) issued by the Company at prices below the assumed public offering
price during the twelve-month period prior to the offering have been included in
the calculation through March 31, 1996 as if they were outstanding for all
periods presented regardless of whether they are antidilutive (using the
treasury stock method at the public offering price).
Pro forma net loss per share for the three months ended March 31,
1996 also gives effect, even if antidilutive, to common equivalent shares from
preferred stock that automatically converted upon the closing of the company's
initial public offering (using the as-if-converted method).
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128 (SFAS 128), "Accounting for Earnings per Share", which is
required to be adopted on December 31, 1997. At that time, the Company will be
required to change the method currently used to compute earnings per share and
to restate all prior periods. Under the new requirements for calculating primary
earnings per share, the dilutive effect of stock options will be excluded. For
the first quarter ended March 31, 1997 and March 31, 1996 there is no change
expected in primary earnings per share. The impact of SFAS 128 on the
calculation of fully diluted earnings per share for these quarters is not
expected to be material.
3. OBLIGATIONS
In March 1997, the Company entered into a four year, $5,000,000
equipment term loan facility. The loan bears interest at the bank's prime rate
plus 0.25%. Under the terms of the agreement, the Company grants a first
priority security interest in certain assets of the Company
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and must maintain certain financial covenants including maintaining minimum
tangible net worth and others based on monthly cash balances. Interest only
payments will be made during the first 12 months and borrowings and interest
will be repaid on a straight-line basis over 36 months beginning in month 13 of
the facility. As of March 31, 1997 there was $2,144,000 outstanding on the
facility.
4. STRATEGIC INVESTMENTS
In March 1997, the Company and Hoover's, Inc. ("Hoover's") entered
into a strategic agreement which integrate Hoover's Company Information Service
and the Infoseek Service. As part of this relationship, the Company purchased
13,636 shares for $750,000 and also received warrants for an equal amount of
shares at $55.00 per share. The Company's investment in Hoover's is for
approximately 5.5% of the outstanding Common Stock and is being accounted for
using the cost method. The Company also agreed to make available to Hoovers a
revolving credit loan of up to $250,000. Also, as part of the deal the Company
will sell advertising on Hoover's service and it is required to pay certain
monthly minimums.
5. COMMITMENTS
In March 1997, Infoseek renewed its agreement with Netscape, under
terms that extend the current contract through April 1997 and thereafter provide
for Infoseek to be one of five premier providers displayed on Netscape's web
page for the period of May 1, 1997 through April 30, 1998. Infoseek's agreement
with Netscape provides for payments of up to an aggregate of $12,500,000 to
Netscape over the term of the agreement.
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ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITIONS AND RESULTS OF OPERATIONS
This Discussion and Analysis contains certain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1993 and
Section 21E of the Securities Exchange Act of 1934. Actual results and the
timing of certain events could differ materially from those projected in the
forward-looking statements as a result of the risk factors set forth in Risk
Factors That May Affect Future results and other factors discussed elsewhere in
this Quarterly Report.
Results of Operations
Total Revenues -- For the three months ended March 31, 1997 and 1996, total
revenues were $6,151,000 and $1,731,000, respectively.
During the first quarter of 1997 and 1996, the Company derived its revenues
substantially from the sale of advertisements on its Web pages. Advertising
revenues in the three months ended March 31, 1997 and 1996 were $5,933,000 and
$1,656,000, respectively, representing 96% of total revenues in both periods.
The growth in revenues is attributable to the increased use of the Internet for
information publication, distribution and commerce coupled with the development
and increased acceptance of the Internet as an advertising medium. The Company
expects to continue to derive substantially all of its revenues for the
foreseeable future from selling advertising space on its Web sites. Advertising
revenues are derived principally from short-term advertising contracts in which
the Company guarantees a minimum number of impressions (displays of an
advertisement to the user) for a fixed fee. Advertising revenues are recognized
ratably over the term of the contract during which services are provided and are
stated net of customer discounts.
In March 1996, the Company and NYNEX Information Technologies Company ("NYNEX")
entered into a one-year agreement, which provides for the Company's display of
the BigYellow logo within the Infoseek Service. According to the terms of the
agreement, NYNEX agreed to pay to the Company up to an aggregate of $4,600,000,
in monthly payments, which amount would be decreased proportionately if the
number of impressions of the BigYellow logo were below a specified number. In
February of 1997, the Company signed an amendment with NYNEX extending the term
of the original agreement through June 1998 in exchange for an additional
$1,400,000, for a total of $6,000,000, in monthly payments. The terms and
conditions of the amended agreement are substantially the same as the original
agreement, except for elimination of certain exclusivity and reimbursement
provisions. The Company recognized revenue of $706,000 and $471,000 in
connection with this amended agreement for the three months ended March 31, 1997
and 1996, respectively. There can be no assurance that the NYNEX arrangement
will prove to be mutually beneficial or that it will be continued after the
extended term.
Also included in advertising revenues is the exchange by the Company of
advertising space on the Company's Web sites for reciprocal advertising space in
other media publications or other Web sites or receipt of applicable goods and
services. Although such revenues have been insignificant to date, the Company
believes these exchange transactions are of value, particularly in the marketing
of the Infoseek brand, and expects to continue to engage in these transactions
in the future.
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The balance of total revenues during these periods was derived from the
licensing of technology to businesses for internal use in 1997 and from
subscription fees for a premium service offered to business and professional
users in 1996.
The Company's current business model to generate revenues through the sale of
advertising on the Internet may be unsustainable. There can be no assurance that
current advertisers will continue to purchase advertising space and services
from the Company or that the Company will be able to successfully attract
additional advertisers.
Cost of Revenues -- For the three months ended March 31, 1997 and 1996, cost of
revenues were $1,284,000 and $690,000, respectively. Cost of revenues consists
primarily of expenses associated with the enhancement, maintenance and support
of the Company's Web sites, including telecommunications costs and equipment
depreciation. Cost of revenues also includes, for all periods presented,
expenses associated with the licensing of certain third-party technologies. Cost
of revenues increased in the quarter ended March 31, 1997 over the comparable
period in 1996 as the Company added additional equipment and personnel to
support its Web sites and as royalties due upon usage of the product increased
as revenues increased. The Company expects its cost of revenues will continue to
increase in absolute dollars and possibly as a percentage of revenues as it
upgrades equipment and maintenance and support personnel, adds content partners
and as a greater percentage of sales are made through the recently introduced
Infoseek Network. Infoseek Network sales are expected to generate advertising
revenues that typically would carry lower margins than those associated with
advertising sold on the Company's own Web site.
Operating Expenses -- The Company's quarterly operating expenses have increased
substantially since its inception as the Company has transitioned from the
product development stage to the marketing of its services and products and
expansion of its business. The Company's expects its operating expenses to
continue to increase in dollar amount in the future as the Company continues to
expand its business.
The Company recorded aggregate deferred compensation of $5,226,000 in connection
with certain stock options granted during 1996 and 1995. The amortization of
such deferred compensation is being charged to operations over the vesting
periods of the options, which are typically four years. For the three months
ended March 31, 1997 and 1996, the Company amortized $276,000 and $387,000,
respectively, related to stock options. As a result, the amortization of this
deferred compensation will continue to have an adverse effect on the Company's
results of operations.
Research and Development -- For the quarter ended March 31, 1997 and 1996,
research and development expenses were $1,592,000 and $934,000, respectively.
Research and development expenses consist principally of personnel costs,
consulting and equipment depreciation. Costs related to research, design and
development of products and services have been charged to research and
development expense as incurred.
The increase in research and development expenses for 1997 over 1996 was
primarily the result of on-going enhancements to Infoseek Service and the
development and implementation of the Ultramatch technology. The Company
believes that a significant level of product development expenses is required to
remain competitive. Accordingly, the Company anticipates that it will continue
to devote substantial resources to product development and that these costs are
expected to continue to increase in dollar amount in future periods.
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Sales and Marketing -- For the quarter ended March 31, 1997 and 1996, sales and
marketing expenses were $6,453,000 and $2,757,000, respectively. Sales and
marketing expenses consist primarily of compensation of sales and marketing
personnel, advertising and promotional expenses.
Sales and marketing expenses for the quarter ended March 31, 1997 and 1996
included payments made to Netscape Communications Corporation ("Netscape")
pursuant to an arrangement for the listing of the Company's product on the
Netscape Web page. This agreement with Netscape provided for payments of up to
an aggregate of $5,000,000 over the course of the one-year term of the
agreement. In March 1997, Infoseek renewed its agreement with Netscape under
terms that extend the current contract through April 1997 and thereafter
provides for Infoseek to be one of five premier providers displayed on
Netscape's Web page for the period of May 1, 1997 through April 30, 1998. The
renewed agreement with Netscape provides for payments of up to an aggregate of
$12,500,000 over the term of the agreement. During the quarter ended March 31,
1997 and 1996, the Company recognized payment of $1,250,000 and $937,500
respectively to Netscape as expense.
In addition, the increase in sales and marketing expenses for the quarter ended
March 31, 1997 over the comparable period in 1996 was also the result of hiring
additional sales and marketing personnel and an increase in promotional and
advertising activity. The Company expects to increase promotional and
advertising expenses and anticipates hiring additional sales representatives in
1997 and future periods. As a result, these costs are expected to continue to
increase.
General and Administrative -- For the quarter ended March 31, 1997 and 1996,
general and administrative expenses were $1,333,000 and $860,000, respectively.
General and administrative expenses consist primarily of compensation of
administrative and executive personnel, facility costs and fees for professional
services.
The increase in general and administrative expenses for the quarter ended March
31, 1997 over the comparable period in 1996 was the result of hiring additional
administrative and executive staff and adding infrastructure to manage the
expansion of the business. The Company anticipates that its general and
administrative expenses will continue to increase in dollar amount as the
Company continues to expand its administrative and executive staff and relocates
its corporate headquarters to larger facilities in the first half of 1997.
Income Taxes -- Due to the Company's loss position, there was no provision for
income taxes for the periods presented.
At December 31, 1996, the Company had federal and state net operating loss carry
forwards of approximately $20,200,000 and $7,100,000, respectively. The
federal net operating loss carry forwards will expire beginning in 2009 through
2011, if not utilized, and the state net operating loss carry forwards will
expire in the years 1999 through 2001. Certain future changes in the share
ownership of the Company, as defined in the Tax Reform Act of 1986 and similar
state provisions, may restrict the utilization of carry forwards.
A valuation allowance has been recorded for the entire deferred tax asset as a
result of uncertainties regarding the realization of the asset due to the lack
of earnings history of the Company.
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Liquidity and Capital Resources
From inception through May 1996, the Company financed its operations and met its
capital expenditure requirements primarily through the issuance of equity,
convertible debt securities and equipment term loans. In June 1996, the Company
completed its initial public offering and received proceeds from the offering of
$43,485,000, net of underwriting discounts, commissions and other offering
costs. Concurrent with the closing of the initial public offering, all
outstanding shares of its redeemable convertible preferred and convertible
preferred stock were automatically converted into shares of common stock.
For the first three months of 1997 and 1996, operating activities used cash of
$3,382,000 and $2,075,000, respectively. The net cash used during these periods
was primarily due to net losses and decreases in accounts payable, partially
offset by increases in depreciation and amortization and in 1997, deferred
revenue. For the three month periods ended March 31, 1997 and 1996, investing
activities provided net cash of $1,672,000 and used net cash of $751,000,
respectively, primarily associated with sale and purchases of net short-term
investments and the purchase of property and equipment. Financing activities
generated cash of $2,191,000 and $11,811,000 in the first three months of 1997
and 1996, respectively, primarily from equipment loans and the issuance of
Series E preferred stock in 1996.
The Company has commitments for its facilities under operating lease agreements
and expects to continue to incur significant capital expenditures to support
expansion of the Company's business. Furthermore, from time to time the Company
expects to evaluate the acquisition of products, businesses and technologies
that complement the Company's business. The Company does not, however, currently
have any understandings, commitments or agreements with respect to any such
acquisitions.
The Company had $42,534,000 in cash, cash equivalents and short-term investments
at March 31, 1997. The Company believes that its existing funds in addition to
the equipment term loan facility entered into on March 31, 1997 will satisfy the
Company's anticipated working capital and other cash requirements through at
least the next 12 months. The estimate of the period for which the Company
expects its available funds to be sufficient to meet its capital requirements is
a forward-looking statement that involves risks and uncertainties. There can be
no assurance that the Company will be able to meet its working capital and other
cash requirements for this period as a result of a number of factors including
but not limited to those described below under the caption "Risk Factors That
May Affect Future Results-Future Capital Needs; Uncertainty of Additional
Financing". Thereafter, the Company may need to raise additional funds. The
Company may need to raise additional funds sooner, however, in order to fund
more rapid expansion, to develop new or enhance existing services or products,
to respond to competitive pressures or to acquire complementary products,
businesses or technologies. If additional funds are raised through the issuance
of equity or convertible debt securities, the percentage ownership of the
shareholders of the Company will be reduced, shareholders may experience
additional dilution and such securities may have rights, preferences or
privileges senior to those of the holders of the Company's Common Stock. There
can be no assurance that additional financing will be available on terms
favorable to the Company, or at all. If adequate funds are not available or are
not available on acceptable terms, the Company's ability to fund expansion, take
advantage of acquisition opportunities, develop or enhance services or products
or respond to competitive pressures would be significantly limited. Such
limitation could have a material adverse effect on the Company's business,
results of operations and financial condition.
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Risk Factors That May Affect Future Results
In addition to the other information contained in this Report, the following
risk factors should be considered.
Limited Operating History; Anticipation of Continued Losses -- The Company has a
limited operating history, which makes it difficult to manage future operations
or predict future operating results. The Company was formed in August 1993 and
did not commence generating revenues until January 1995. The Company has
incurred significant net losses since inception and expects to continue to incur
significant losses on a quarterly and annual basis for the foreseeable future.
As of March 31, 1997, the Company had an accumulated deficit of $24,877,000. The
Company and its prospects must be considered in light of the risks, costs and
difficulties frequently encountered by companies in their early stage of
development, particularly companies in the new and rapidly evolving Internet
market. The Company has achieved only limited revenues to date, and its ability
to generate significant revenues is subject to substantial uncertainty. There
can be no assurance that the Company will be able to address any of these
challenges or will be able to sustain revenue growth or achieve profitability.
Moreover, in 1996 the Company significantly increased its operating expenses to
substantially increase its sales and marketing operation, develop new
distribution channels, broaden its customer support capabilities and fund
greater levels of research and development. Further increases in operating
expenses are planned in 1997. To the extent that any such expenses are not
subsequently and timely followed by increased revenues, the Company's business,
results of operations and financial condition would be materially adversely
affected.
Potential Fluctuations in Future Results -- As a result of the Company's limited
operating history as well as the very recent emergence of the Internet market
addressed by the Company, the Company has neither internal nor industry-based
historical financial data for any significant period of time upon which to base
planned operating expenses. The Company expects that its results of operations
may also fluctuate significantly in the future as a result of a variety of
factors, including: the continued rate of growth, usage and acceptance of the
Internet; the rate of acceptance of the Internet as an advertising medium;
demand for the Company's products and services; the advertising budgeting cycles
of individual advertisers; the introduction and acceptance of new or enhanced
products or services by the Company or by its competitors; the Company's ability
to anticipate and effectively adapt to a developing market and to rapidly
changing technologies; the Company's ability to attract, retain and motivate
qualified personnel; initiation, renewal or expiration of significant contracts
with NYNEX, Netscape or others; pricing changes by the Company or its
competitors; specific economic conditions in the Internet market; general
economic conditions and other factors. In addition, the Infoseek Network, which
was recently introduced by the Company, is expected to generate advertising
revenues that would typically carry lower gross profit margins than those
associated with advertising sold on the Company's own Web site. As a result, the
Company expects that its gross margins may decline somewhat to the extent that
Network sales become material in amount. Substantially all of the Company's
revenues have been generated from the sale of advertising, and the Company
expects revenue for the foreseeable future to continue to be derived
substantially from advertising sales. Moreover, most of the Company's contracts
with advertising customers have terms of three months or less, with options to
cancel at any time. Accordingly, future sales and operating results are
difficult to forecast. The Company's expense levels are based, in part, on its
expectations as to future revenues and, to a significant extent, are relatively
fixed, at least in the short term. The Company may not be able to adjust
spending in a timely manner to compensate for any unexpected revenue shortfall.
Accordingly, any significant shortfall in relation to the
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Company's expectations would have an immediate adverse impact on the Company's
business, results of operations and financial condition. In addition, the
Company may elect from time to time to make certain pricing, service or
marketing decisions or acquisitions that could have a short-term material
adverse effect on the Company's business, results of operations and financial
condition and may not generate the long-term benefits intended. Due to all of
the foregoing factors, it is likely that in some future period, the Company's
operating results may be below the expectations of public market analysts and
investors. In such event, the price of the Company's Common Stock would likely
be materially adversely affected.
Developing Market; Unproven Acceptance of Internet Advertising and of the
Company's Products and Services -- The market for the Company's products and
services has only recently begun to develop, is rapidly evolving and is
characterized by an increasing number of market entrants with products and
services for use on the Internet. The Company's future success is highly
dependent upon the increased use of the Internet for information publication,
distribution and commerce. In particular, because the Company expects to derive
substantially all of its revenues in the foreseeable future from sales of
Internet advertising, the future success of the Company is highly dependent on
the development of the Internet as an advertising medium. If the market fails to
develop, develops more slowly than expected or becomes saturated with
competitors, or if the Company's products and services do not achieve or sustain
acceptance by the Internet users or advertisers, the Company's business, results
of operations and financial condition will be materially adversely affected.
Reliance on Advertising Revenues -- The Company has derived substantially all of
its revenues to date from the sale of advertisements and expects such dependence
of advertising revenue to continue. The Company's current business model to
generate revenues through the sale of advertising on the Internet is unproven.
The Internet as an advertising medium has not been available for a sufficient
period of time to gauge its effectiveness as compared with traditional
advertising media. In addition, most of the Company's current advertising
customers have limited or no experience using the Internet as an advertising
medium, have not devoted a significant portion of their advertising expenditures
to such advertising and may not find such advertising to be effective for
promoting their products and services relative to advertising in traditional
media. In addition, the Company's advertising revenues to date have been derived
from a limited number of advertising customers. There can be no assurance that
current advertisers will continue to purchase advertising space and services
from the Company or that sufficient impressions will be achieved or available,
or that the Company will be able to successfully attract additional advertisers.
Furthermore, with the rapid growth of available inventory on the Internet and
the intense competition among sellers of advertising space it is difficult to
project future levels of advertising revenues and pricing models that will be
adopted by the industry or individual companies. Accordingly, there can be no
assurance that the Company will be successful in generating significant future
advertising revenues and failure to do so will have a material adverse effect on
the Company's business, results of operations and financial condition.
Change in Strategic Relationships -- From March 1995 through March 1996, the
Company's service was listed as the sole premier navigational service on the
Netscape Web page accessible via the "Net Search" button. In March 1996,
Infoseek entered into a new agreement with Netscape, which provided that
Infoseek would be listed as a non-exclusive premier provider of navigational
services on Netscape's Web page for the period April 10, 1996 to March 31, 1997.
This agreement with Netscape provided for payments of up to an aggregate of
$5,000,000 to Netscape over the term of the agreement. Under the terms of this
agreement, Netscape's Web
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page displays four additional premier providers. In March 1997, Infoseek renewed
its agreement with Netscape, under terms that extend the current contract
through April 1997 and thereafter provides for Infoseek to be one of five
premier providers displayed on Netscape's Web page for the period of May 1, 1997
through April 30, 1998. This agreement with Netscape provides for payments of up
to an aggregate of $12,500,000 to Netscape over the term of the agreement. There
can be no assurance that the Company will be able to maintain or increase its
current level of traffic and any failure to do so could materially and adversely
impact advertising revenues. In addition, the Company cannot anticipate the
impact on Infoseek traffic of any changes Netscape may make to this service, to
its Web page or its other services, or the effect on advertising revenues that
may be generated from such traffic. Furthermore, if traffic is decreased
significantly as a result of these or other changes in the Netscape relationship
and the Company is unable to develop alternative viable distribution channels,
advertising revenues would be adversely affected, while the remaining Netscape
obligation would not be reduced, the result being that the Company's business,
results of operations and financial condition would be materially and adversely
affected.
The Company's revenues are also dependent on its relationship with NYNEX. In
March 1996, the Company and NYNEX entered into a one-year agreement, which
provides for the Company's display of the BigYellow logo within the Infoseek
Service. According to the terms of the agreement, NYNEX agreed to pay to the
Company up to an aggregate of $4,600,000, in monthly payments, which amount
would be decreased proportionately if the number of impressions of the BigYellow
logo were below a specified number. NYNEX could extend the term of the agreement
for additional one-year periods, with the fee to be determined based upon
Infoseek's then current advertising rate structure. In February 1997, the
Company and NYNEX amended this agreement to extend its term to June 1998 in
exchange for an additional $1,400,000 million, for a total of $6,000,000, in
monthly payments. The terms and conditions of the amended agreement are
substantially the same, except for elimination of certain exclusivity and
reimbursement provisions. There can be no assurance that the NYNEX arrangement
will prove to be mutually beneficial or that it will be continued after its
amended term.
Technological Changes and New Products and Services -- The market for Internet
products and services is characterized by rapid technological change, changing
customer needs, frequent new product introductions and evolving industry
standards. These market characteristics are exacerbated by the emerging nature
of this market and the fact that many companies are expected to introduce new
Internet products and services in the near future. The Company's future success
will depend on its ability to continually and, on a timely basis, introduce new
products, services and technologies and to continue to improve the performance,
features and reliability of the Company's products and services in response to
both evolving demands of the marketplace and competitive product offerings.
There can be no assurance that any new or proposed product or service will
attain market acceptance. Failure of the Company to successfully design,
develop, test, market and introduce new and enhanced technologies and services,
in particular, Ultraseek or any enhancements of the Company's current search
technology, or the failure of the Company's recently introduced products and
services to achieve market acceptance could have a material adverse effect upon
the Company's business, operating results and financial condition. While the
Company's Ultramatch technology is currently in beta testing and is expected to
be commercially released in 1997, this technology, which is being developed by
Aptex Software, Inc., is complex and subject to risks inherent in the
development and deployment process. There can be no assurance that the Company
will not experience difficulties that could delay or prevent the successful
development,
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<PAGE> 15
introduction or marketing of new or enhanced technologies, products and
services, or that the Company's new or recently introduced products and services
will adequately meet the requirements of the marketplace and achieve significant
market acceptance. Due to certain market characteristics, including
technological change, changing customer needs, frequent new product and service
introductions and evolving industry standards, timeliness of introduction of
these new products and services is critical. Delays in the introduction of new
products and services may result in customer dissatisfaction and may delay or
cause a loss of advertising revenue. There can be no assurance that the Company
will be successful in developing new products or services or improving existing
products and services that respond to technological changes or evolving industry
standards, that the Company will not experience difficulties that could delay or
prevent the successful development, introduction and marketing of new or
improved products and services, or that its new products and services will
adequately meet the requirements of the marketplace and achieve market
acceptance. In addition, new or enhanced products and services introduced by the
Company may contain undetected errors that require significant design
modifications. This could result in a loss of customer confidence and user
support, thus adversely affecting the use of the Company's products and
services, which in turn would have a material adverse effect upon the Company's
business, results of operations or financial condition. If the Company is unable
to develop and introduce new or improved products or services in a timely manner
in response to changing market conditions or customer requirements, the
Company's business, operating results and financial condition will be materially
adversely affected.
Intense Competition -- The market for Internet products and services is highly
competitive, with no substantial barriers to entry, and the Company expects that
competition will continue to intensify. In addition, the market for the
Company's products and services has only recently begun to develop, is rapidly
evolving and is characterized by an increasing number of market entrants with
competing products and services. The Company does not believe this market will
support the increasing number of competitors and their products and services.
Although the Company believes that the diverse segments of the Internet market
may provide opportunities for more than one supplier of products and services
similar to those of the Company, it is possible that a single supplier may
dominate one or more market segments. Accordingly, any failure of the Company to
provide product and service offerings that achieve success in the short-term
could result in an insurmountable loss in market and brand acceptance, and
could, therefore, have a material adverse and long-term effect upon the
Company's business, results of operations and financial condition.
Capacity Constraints and System Failure -- A key element of the Company's
strategy is to generate a high volume of traffic to its products and services.
Accordingly, the performance of the Company's products and services is critical
to the Company's reputation, its ability to attract advertisers to the Company's
Web sites and market acceptance of these products and services. Any system
failure that causes interruptions or that increases response time of the
Company's products and services would result in less traffic to the Company's
Web sites and, if sustained or repeated, would reduce the attractiveness of the
Company's products and services to advertisers and customers. In addition, an
increase in the volume of searches conducted through the Company's products and
services could strain the capacity of the software, hardware or
telecommunications lines deployed by the Company, which could lead to slower
response time or system failures. The Company renewed its contract with Netscape
pursuant to which the Company hopes to increase its presence as a Netscape
premier provider. If the Company receives a greater share of Netscape traffic,
it is possible that the capacity of the Company's
15
<PAGE> 16
hardware or software could be exceeded and service interruptions or failures
could occur. As the number of Web pages and users increase, there can be no
assurance that the Company's products, services and systems will be able to
scale appropriately. The Company is also dependent upon Web browser companies
and Internet and online service providers for access to its products and
services, and users have experienced and may in the future experience
difficulties due to system or software failures or incompatibilities not within
the Company's control. The Company is also dependent on hardware suppliers for
prompt delivery, installation and service of servers and other equipment and
services used to provide its products and services. The Company has been working
to establish a duplicate Infoseek Service site and expects this site to be
complete and functioning in 1997. The Company's current estimate of the timing
of the completion of this duplicate service site is a forward-looking statement
that involves risks and uncertainties. The actual timing of such completion and
the capacity of the service provided could differ materially from that noted in
this forward-looking statement as a result of certain factors, including
hardware or software difficulties and the amount of traffic on Infoseek Service.
As a result, there can be no assurance that a duplicate service site will be
operational within the time frame stated above, or at all. In addition, any
duplicate site will create additional operational and management complexities,
including the need for continual updating and maintenance of directory listings,
possibly among geographically dispersed network servers. Any disruption in the
Internet access and service provided by the Company or its service providers
could have a material adverse effect upon the Company's business, results of
operations and financial condition.
The process of managing advertising within large, high traffic Web
sites such as the Company's is an increasingly important and complex task. The
Company relies on internal advertising inventory management and analysis systems
to provide enhanced internal reporting and customer feedback on advertising. To
the extent that any extended failure of the Company's advertising management
system results in incorrect advertising insertions, the Company may be exposed
to "make good" obligations with its advertising customers, which, by displacing
advertising inventory, could have a material adverse effect on the Company's
business, results of operations and financial condition.
In addition, the Company's operation depends upon its ability to
maintain and protect its computer systems located in Santa Clara, California.
This system is vulnerable to damage from fire, floods, earthquakes, power loss,
telecommunications failures, break-ins and similar events. The Company does not
currently have a disaster recovery plan in effect. Despite the implementation of
network security measures by the Company, its servers are also vulnerable to
computer viruses, break-ins and similar disruptive problems. Computer viruses,
break-ins or other problems caused by third parties could lead to interruptions,
delays in or cessation of service to users of the Company's products and
services. The occurrence of any of these risks could have a material adverse
effect on the Company's business, results of operations and financial condition.
Risks Associated with International Expansion -- As part of its business
strategy, the Company is seeking opportunities to expand its products and
services into international markets. The Company believes that such expansion is
important to the Company's ability to continue to grow and to market its
products and services. In marketing its products and services internationally,
however, the Company will face new competitors. In addition, the ability of the
Company to enter the international markets will be dependent upon the Company's
ability to create localized
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<PAGE> 17
versions of its products and services. There can be no assurance that the
Company will be successful in creating localized versions of its products and
services or marketing or distributing its products abroad or that, if the
Company is successful, its international revenues will be adequate to offset the
expense of establishing and maintaining international operations. To date, the
Company has limited experience in marketing and distributing its products
internationally. In addition to the uncertainty as to the Company's ability to
establish an international presence, there are certain difficulties and risks
inherent in doing business on an international level, such as compliance with
regulatory requirements and changes in these requirements, export restrictions,
export controls relating to technology, tariffs and other trade barriers,
protection of intellectual property rights, difficulties in staffing and
managing international operations, longer payment cycles, problems in collecting
accounts receivable, political instability, fluctuations in currency exchange
rates and potentially adverse tax consequences. There can be no assurance that
one or more of such factors will not have a material adverse effect on any
international operations established by the Company and, consequently, on the
Company's business, operating results and financial condition.
Future Capital Needs; Uncertainty of Additional Financing -- The Company
currently anticipates that its cash, cash equivalents and short-term investment
balances, together with cash flows generated from advertising revenues, will be
sufficient to meet its anticipated needs for working capital, capital
expenditures and business expansion for at least the next 12 months. Thereafter,
the Company may need to raise additional funds. The Company may need to raise
additional funds sooner in order to fund more rapid expansion to develop new or
enhanced services or products, to respond to competitive pressures or to acquire
complementary products, businesses or technologies. If additional funds are
raised through the issuance of equity or convertible debt securities, the
percentage ownership of the shareholders of the Company will be reduced,
shareholders may experience additional dilution and such securities may have
rights, preferences or privileges senior to those of the holders of the
Company's Common Stock. There can be no assurance that additional financing will
be available on terms favorable to the Company or at all. If adequate funds are
not available or are not available on acceptable terms, the Company may not be
able to fund its expansion, take advantage of unanticipated acquisition
opportunities, develop or enhance services or products or respond to competitive
pressures. Such inability could have material adverse effect on the Company's
business, results of operations and financial condition.
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<PAGE> 18
PART II: OTHER INFORMATION
ITEM 6. Exhibits and Reports on Form 8-K
a) Exhibit
<TABLE>
<S> <C>
10.1+** Premier Provider Services Agreement between Registrant
and Netscape Communications Corporation dated March 17,
1997.
10.2+ Office lease dated March 4, 1997 between Registrant and
Linnar Realty Corp. #8.
10.3+ Amendment No. 2 to Infoseek/NYNEX agreement between the
Registrant and NYNEX Information Technologies Company,
dated February 19, 1997.
10.4 Loan and Security Agreement between the Registrant and
Silicon Valley Bank dated March 31, 1997
11.1 Statement re: Computation of Net Loss Per Share.
27.1 Financial Data Schedule.
+ Incorporated by reference to the Company's Annual
Report on form 10-K for the fiscal year ended December
31, 1996.
** Confidential treatment requested for certain portion of
this exhibit.
</TABLE>
b) Reports on Form 8-K
The Company did not file any reports on Form 8-K during the quarter
ended March 31, 1997.
18
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INFOSEEK CORPORATION
BY |S| Leonard LeBlanc
Leonard LeBlanc
Executive Vice President, Chief
Operating Officer, Chief Financial
Officer, Assistant Secretary and
Director
Dated:
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<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
10.4 Loan and Security Agreement between the Registrant and
Silicon Valley Bank dated March 31, 1997
11.1 Statement of Computation of Net Loss Per Share.
27.1 Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT 10.4
- --------------------------------------------------------------------------------
INFOSEEK CORPORATION
LOAN AND SECURITY AGREEMENT
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C>
1. DEFINITIONS AND CONSTRUCTION...........................................1
1.1 Definitions..................................................1
2. LOAN AND TERMS OF PAYMENT..............................................8
2.1 Equipment Facility...........................................8
2.2 Interest Rates, Payments, and Calculations...................8
2.3 Crediting Payments...........................................9
2.4 Fees.........................................................9
2.5 Additional Costs.............................................9
2.6 Term........................................................10
3. CONDITIONS OF LOANS...................................................10
3.1 Conditions Precedent to Initial Advance.....................10
3.2 Conditions Precedent to all Advances........................11
4. CREATION OF SECURITY INTEREST.........................................11
4.1 Grant of Security Interest..................................11
4.2 Delivery of Additional Documentation Required...............11
4.3 Right to Inspect............................................11
4.4 Requirement for Cash Collateral.............................11
5. REPRESENTATIONS AND WARRANTIES........................................12
5.1 Due Organization and Qualification..........................12
5.2 Due Authorization; No Conflict..............................12
5.3 No Prior Encumbrances.......................................12
5.4 Bona Fide Eligible Accounts.................................12
5.5 Merchantable Inventory......................................12
5.6 Name; Location of Chief Executive Office....................12
5.7 Litigation..................................................12
5.8 No Material Adverse Change in Financial Statements..........12
5.9 Solvency....................................................12
5.10 Regulatory Compliance.......................................13
5.11 Environmental Condition.....................................13
5.12 Taxes.......................................................13
5.13 Subsidiaries................................................13
5.14 Government Consents.........................................13
5.15 Full Disclosure.............................................13
6. AFFIRMATIVE COVENANTS.................................................14
6.1 Good Standing...............................................14
6.2 Government Compliance.......................................14
6.3 Financial Statements, Reports, Certificates.................14
6.4 Inventory; Returns..........................................14
6.5 Taxes.......................................................14
6.7 Principal Depository........................................15
6.8 Location of Equipment.......................................15
6.9 Minimum Liquidity...........................................15
</TABLE>
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<PAGE> 3
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
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<S> <C>
6.10 Tangible Net Worth..........................................15
6.11 Further Assurances..........................................16
7. NEGATIVE COVENANTS....................................................16
7.1 Dispositions................................................16
7.2 Change in Business..........................................16
7.3 Mergers or Acquisitions.....................................16
7.4 Indebtedness................................................16
7.5 Encumbrances................................................16
7.6 Distributions...............................................16
7.7 Investments.................................................17
7.8 Transactions with Affiliates................................17
7.9 Subordinated Debt...........................................17
7.10 Inventory...................................................17
7.11 Compliance..................................................17
8. EVENTS OF DEFAULT.....................................................17
8.1 Payment Default.............................................17
8.2 Covenant Default............................................17
8.3 Material Adverse Change.....................................18
8.4 Attachment..................................................18
8.5 Insolvency..................................................18
8.6 Other Agreements............................................18
8.7 Subordinated Debt...........................................18
8.8 Judgments...................................................18
8.9 Misrepresentations..........................................18
9. BANK'S RIGHTS AND REMEDIES............................................19
9.1 Rights and Remedies.........................................19
9.2 Power of Attorney...........................................20
9.3 Accounts Collection.........................................20
9.4 Bank Expenses...............................................20
9.5 Bank's Liability for Collateral.............................20
9.6 Remedies Cumulative.........................................20
9.7 Demand; Protest.............................................21
10. NOTICES...............................................................21
11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER............................22
12. GENERAL PROVISIONS....................................................22
12.1 Successors and Assigns......................................22
12.2 Indemnification.............................................23
12.3 Time of Essence.............................................23
12.4 Severability of Provisions..................................23
12.5 Amendments in Writing, Integration..........................23
12.6 Counterparts................................................23
12.7 Survival....................................................23
</TABLE>
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<PAGE> 4
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
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<S> <C>
12.8 Confidentiality.............................................24
</TABLE>
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<PAGE> 5
This LOAN AND SECURITY AGREEMENT is entered into as of March 31,
1997, by and between SILICON VALLEY BANK ("Bank") and INFOSEEK CORPORATION
("Borrower").
RECITALS
Borrower wishes to obtain credit from time to time from Bank, and
Bank desires to extend credit to Borrower. This Agreement sets forth the terms
on which Bank will advance credit to Borrower, and Borrower will repay the
amounts owing to Bank.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
1.1 Definitions. As used in this Agreement, the following terms
shall have the following definitions:
Accounts" means all presently existing and hereafter
arising accounts, contract rights, and all other forms of obligations owing to
Borrower arising out of the sale or lease of goods (including, without
limitation, the licensing of software and other technology) or the rendering of
services by Borrower, whether or not earned by performance, and any and all
credit insurance, guaranties, and other security therefor, as well as all
merchandise returned to or reclaimed by Borrower and Borrower's Books relating
to any of the foregoing.
"Advance" or "Advances" means an advance under the
Equipment Facility.
"Affiliate" means, with respect to any Person, any Person
that owns or controls directly or indirectly such Person, any Person that
controls or is controlled by or is under common control with such Person, and
each of such Person's senior executive officers, directors, and partners.
"Bank Expenses" means all: reasonable costs or expenses
(including reasonable attorneys' fees and expenses) incurred in connection with
the preparation, negotiation, administration, and enforcement of the Loan
Documents; and Bank's reasonable attorneys' fees and expenses incurred in
amending, enforcing or defending the Loan Documents (including fees and expenses
of appeal), whether or not suit is brought.
"Borrower's Books" means all of Borrower's books and
records including: ledgers; records concerning Borrower's assets or liabilities,
the Collateral, business operations or financial condition; and all computer
programs, or tape files, and the equipment, containing such information.
"Business Day" means any day that is not a Saturday,
Sunday, or other day on which banks in the State of California are authorized or
required to close.
"Cash Balance" means as of any date of determination, the
amount of (i) cash and cash equivalents plus (ii) short term investments minus
(iii) restricted cash of Borrower.
"Cash Burn" for a given month means Cash Balance as of the
last day of the immediately prior month minus Cash Balance as of the last day of
the current month plus any decrease in
1
<PAGE> 6
short and long term debt (including subordinated debt) or in contributed equity
minus any increase in short or long term debt (including subordinated debt) or
in contributed equity.
"Closing Date" means the date of this Agreement.
"Code" means the California Uniform Commercial Code.
"Collateral" means the property described on Exhibit A
attached hereto.
"Committed Loan Amount" means Five Million Dollars
($5,000,000).
"Contingent Obligation" means, as applied to any Person,
any direct or indirect liability, contingent or otherwise, of that Person with
respect to (i) any indebtedness, lease, dividend, letter of credit or other
obligation of another, including, without limitation, any such obligation
directly or indirectly guaranteed, endorsed, co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable; (ii) any obligations with respect to undrawn
letters of credit issued for the account of that Person; and (iii) all
obligations arising under any interest rate, currency or commodity swap
agreement, interest rate cap agreement, interest rate collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; provided, however,
that the term "Contingent Obligation" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determined amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith; provided, however, that such amount shall not in any event exceed the
maximum amount of the obligations under the guarantee or other support
arrangement.
"Covenant Conversion Date" means the date on which the sum
of Borrower's cash and cash equivalents and short term investments, is equal to
or greater than Twenty Million Dollars ($20,000,000).
"Daily Balance" means the amount of the Obligations owed
at the end of a given day.
"Eligible Equipment" means general purpose scientific,
laboratory, manufacturing and test equipment, computer equipment, office
equipment and furnishings and other machines and office equipment as approved by
Bank in its sole discretion (i) in which the Bank has a valid perfected security
interest, and (ii) delivered to Borrower by the manufacturer or vendor after,
upon or not more than one hundred eighty (180) days prior to the date of the
Closing Date, which equipment is new and has not previously been used by any
Person.
"Equipment" means all present and future machinery,
equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and
attachments in which Borrower has any interest.
"Equipment Availability Date" means March 30, 1998.
"Equipment Facility" means the facility under which
Borrower may request Bank to issue cash advances, as specified in Section 2.1
hereof.
2
<PAGE> 7
"ERISA" means the Employment Retirement Income Security
Act of 1974, as amended, and the regulations thereunder.
"GAAP" means generally accepted accounting principles as
in effect from time to time.
"Indebtedness" means (a) all indebtedness for borrowed
money or the deferred purchase price of property or services, including without
limitation reimbursement and other obligations with respect to surety bonds and
letters of credit, (b) all obligations evidenced by notes, bonds, debentures or
similar instruments, (c) all capital lease obligations and (d) all Contingent
Obligations.
"Insolvency Proceeding" means any proceeding commenced by
or against any person or entity under any provision of the United States
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, formal or informal
moratoria, compositions, extension generally with its creditors, or proceedings
seeking reorganization, arrangement, or other relief.
"Inventory" means all present and future inventory in
which Borrower has any interest, including merchandise, raw materials, parts,
supplies, packing and shipping materials, work in process and finished products
intended for sale or lease or to be furnished under a contract of service, of
every kind and description now or at any time hereafter owned by or in the
custody or possession, actual or constructive, of Borrower, including such
inventory as is temporarily out of its custody or possession or in transit and
including any returns upon any accounts or other proceeds, including insurance
proceeds, resulting from the sale or disposition of any of the foregoing and any
documents of title representing any of the above, and Borrower's Books relating
to any of the foregoing.
"Investment" means any beneficial ownership of (including
stock, partnership interest or other securities) any Person, or any loan,
advance or capital contribution to any Person.
"IRC" means the Internal Revenue Code of 1986, as amended,
and the regulations thereunder.
"Lien" means any mortgage, lien, deed of trust, charge,
pledge, security interest or other encumbrance.
"Loan Documents" means, collectively, this Agreement, any
note or notes executed by Borrower, and any other agreement entered into between
Borrower and Bank in connection with this Agreement, all as amended or extended
from time to time.
"Material Adverse Effect" means a material adverse effect
on (i) the business operations or condition (financial or otherwise) of Borrower
and its Subsidiaries taken as a whole or (ii) the ability of Borrower to repay
the Obligations or otherwise perform its obligations under the Loan Documents.
"Maturity Date" means the date immediately preceding the
third anniversary of the Equipment Availability Date.
"Negotiable Collateral" means all of Borrower's present
and future letters of credit of which it is a beneficiary, notes, drafts,
instruments, securities, documents of title, and chattel paper, and Borrower's
Books relating to any of the foregoing.
3
<PAGE> 8
"Obligations" means all debt, principal, interest, Bank
Expenses and other amounts owed to Bank by Borrower pursuant to this Agreement
or any other agreement, whether absolute or contingent, due or to become due,
now existing or hereafter arising, including any interest that accrues after the
commencement of an Insolvency Proceeding and including any debt, liability, or
obligation owing from Borrower to others that Bank may have obtained by
assignment or otherwise.
"Periodic Payments" means all installments or similar
recurring payments that Borrower may now or hereafter become obligated to pay to
Bank pursuant to the terms and provisions of any instrument, or agreement now or
hereafter in existence between Borrower and Bank.
"Permitted Indebtedness" means:
(a) Indebtedness of Borrower in favor of Bank arising
under this Agreement or any other Loan Document;
(b) Indebtedness existing on the Closing Date and
disclosed in the Schedule;
(c) Indebtedness secured by Permitted Liens;
(d) Subordinated Debt;
(e) Indebtedness to trade creditors and with respect to
surety bonds and similar obligations incurred in the ordinary course of
business.
(f) Indebtedness of Borrower to any Subsidiary and
Contingent Obligations of any Subsidiary with respect to obligations of Borrower
(provided that the primary obligations are not prohibited hereby), and
Indebtedness of any Subsidiary to any other Subsidiary and Contingent
Obligations of any Subsidiary with respect to obligations of any other
Subsidiary (provided that the primary obligations are not prohibited hereby);
(g) Indebtedness secured by Permitted Liens;
(h) Capital leases or indebtedness incurred solely to
purchase equipment which is secured in accordance with clause (c) of "Permitted
Liens" below and is not in excess of the lesser of the purchase price of such
equipment or the fair market value of such equipment on the date of acquisition;
(i) Other Indebtedness not to exceed One Hundred Thousand
Dollars ($100,000); and
(j) Extensions, refinancings, modifications, amendments
and restatements of any of items of Permitted Indebtedness (a) through (h)
above, provided that the principal amount thereof is not increased or the terms
thereof are not modified to impose more burdensome terms upon Borrower or its
Subsidiary, as the case may be.
"Permitted Investment" means:
(a) Investments existing on the Closing Date disclosed in
the Schedule;
4
<PAGE> 9
(b) (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency or any
State thereof maturing within one (1) year from the date of acquisition thereof,
(ii) commercial paper maturing no more than one (1) year from the date of
creation thereof and currently having the highest rating obtainable from either
Standard & Poor's Corporation or Moody's Investors Service, Inc., (iii)
certificates of deposit maturing no more than one (1) year from the date of
investment therein issued by Bank, and (iv) any Investments permitted by
Borrower's investment policy, as amended from time to time, provided that such
investment policy (and such amendment thereto) has been approved by Bank, which
approval shall not be unreasonably withheld;
(c) Investments consisting of the endorsement of
negotiable instruments for deposit or collection or similar transaction in the
ordinary course of business;
(d) Investments accepted in connection with Transfers
permitted by Section 7.1;
(e) Investments consisting of (i) compensation of
employees, officers and directors of Borrower or its Subsidiaries so long as the
Board of Directors of Borrower determines that such compensation is in the best
interests of Borrower, (ii) travel advances, employee relocation loans and other
employee loans and advances in the ordinary course of business, and (iii) loans
to employees, officers or directors relating to the purchase of equity
securities of Borrower or its Subsidiaries pursuant to employee stock purchase
plans or agreements approved by Borrower's Board of Directors;
(f) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of customers or suppliers and
in settlement of delinquent obligations of, and other disputes with, customers
or suppliers arising in the ordinary course of business;
(g) Investments pursuant to or arising under currency
agreements or interest rate agreements entered into in the ordinary course of
business;
(h) Investments consisting of notes receivable of, or
prepaid royalties and other credit extensions to, customers and suppliers who
are not Affiliates, in the ordinary course of business; provided that this
paragraph (i) shall not apply to Investments by Borrower in any Subsidiary;
(i) Investments constituting acquisitions permitted under
Section 7.3;
(j) Deposit accounts of Borrower in which Bank has a Lien
prior to any other Lien;
(k) Deposit accounts of any Subsidiaries maintained in the
ordinary course of business; and
(l) Investments not to exceed One Million Dollars
($1,000,000) in the aggregate per fiscal year as long as Borrower is in
compliance with the terms of this Agreement before and after such Investment is
made.
"Permitted Liens" means the following:
(a) Any Liens existing on the Closing Date and disclosed
in the Schedule or arising under this Agreement or the other Loan Documents;
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(b) Liens for taxes, fees, assessments or other
governmental charges or levies, either not delinquent or being contested in good
faith by appropriate proceedings, provided the same have no priority over any of
Bank's security interests;
(c) Liens (i) upon or in any equipment (other than
equipment financed hereunder) acquired or held by Borrower or any of its
Subsidiaries to secure the purchase price of such equipment or indebtedness
incurred solely for the purpose of financing the acquisition of such equipment,
or (ii) existing on such equipment (other than equipment financed hereunder) at
the time of its acquisition, provided that the Lien is confined solely to the
property so acquired and improvements thereon, and the proceeds of such
equipment; and
(d) Leases or subleases and non-exclusive licenses and
sublicenses granted to others in the ordinary course of Borrower's business not
interfering in any material respect with the business of Borrower and its
Subsidiaries taken as a whole, and any interest or title of a lessor, licensor
or under any lease or license;
(e) Liens on assets (including the proceeds thereof and
accessions thereto) that existed at the time such assets were acquired by
Borrower or any Subsidiary (including Liens on assets of any corporation that
existed at the time it became or becomes a Subsidiary); provided such Liens are
not granted in contemplation of or in connection with the acquisition of such
asset by Borrower or a Subsidiary;
(f) Liens arising from judgments, decrees or attachments
in circumstances not constituting an Event of Default under Section 8.8;
(g) Easements, reservations, rights-of-way, restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances affecting real property not constituting a Material Adverse Effect;
(h) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payments of customs duties in connection
with the importation of goods;
(i) Liens that are not prior to the Lien of Bank which
constitute rights of set-off of a customary nature or banker's Liens with
respect to amounts on deposit, whether arising by operation of law or by
contract, in connection with arrangement entered in to with banks in the
ordinary course of business;
(j) Earn-out and royalty obligations existing on the date
hereof or entered into in connection with an acquisition permitted by Section
7.3;
(k) Liens on insurance proceeds in favor of insurance
companies granted solely as security for financed premiums; and
(l) Liens incurred in connection with the extension,
renewal or refinancing of the indebtedness secured by Liens of the type
described in clauses (a) through (k) above, provided that any extension, renewal
or replacement Lien shall be limited to the property encumbered by the existing
Lien and the principal amount of the indebtedness being extended, renewed or
refinanced does not increase.
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"Person" means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or governmental agency.
"Prime Rate" means the variable rate of interest, per
annum, most recently announced by Bank, as its "prime rate," whether or not such
announced rate is the lowest rate available from Bank.
"Remaining Cash" means, as of the last day of any fiscal
quarter with respect to Borrower and its Subsidiaries on a consolidated basis,
the change in cash balances (excluding changes in debt or equity or corporate
milestone payments) from the last day of the preceding quarter.
"Remaining Months Liquidity" means (i) Cash Balance
divided by (ii) Cash Burn
"Responsible Officer" means each of the Chief Executive
Officer, the Chief Financial Officer and the Controller of Borrower.
"Schedule" means the schedule of exceptions attached
hereto, if any.
"Subordinated Debt" means any debt incurred by Borrower
that is subordinated to the debt owing by Borrower to Bank on terms acceptable
to Bank (and identified as being such by Borrower and Bank).
"Subsidiary" means any corporation or partnership in which
(i) any general partnership interest or (ii) more than 50% of the stock of which
by the terms thereof ordinary voting power to elect the Board of Directors,
managers or trustees of the entity shall, at the time as of which any
determination is being made, be owned by Borrower, either directly or through an
Affiliate in which Borrower has an ownership interest.
"Tangible Net Worth" means at any date as of which the
amount thereof shall be determined, the consolidated total assets of Borrower
and its Subsidiaries minus, without duplication, (i) the sum of any amounts
attributable to (a) goodwill, (b) intangible items such as unamortized debt
discount and expense, patents, trade and service marks and names, copyrights and
research and development expenses except prepaid expenses, and (c) all reserves
not already deducted from assets, and (ii) Total Liabilities.
"Total Liabilities" means at any date as of which the
amount thereof shall be determined, all obligations that should, in accordance
with GAAP be classified as liabilities on the consolidated balance sheet of
Borrower, including in any event all Indebtedness (other than Contingent
Liabilities that are "liabilities" in accordance with GAAP), but specifically
excluding Subordinated Debt.
1.2 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP and all calculations
made hereunder shall be made in accordance with GAAP. When used herein, the
terms "financial statements" shall include the notes and schedules thereto.
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2. LOAN AND TERMS OF PAYMENT
2.1 Equipment Facility.
(a) Advances. Subject to and upon the terms and
conditions of this Agreement, Bank agrees, at any time from the date hereof
through Equipment Availability Date, to make Advances to Borrower in an
aggregate principal amount of up to the Committed Loan Amount. On the date of
each Advance, Borrower shall provide invoices and other documents as requested
by Bank, in form and content satisfactory to Bank, demonstrating that the
Advances then outstanding (A) shall be used to finance or refinance, as the case
may be, Eligible Equipment, and (B) shall not exceed one hundred percent (100%)
of the cost of such Eligible Equipment, excluding any and all installation,
freight or warranty expenses or sales taxes, and (C) that no more than
twenty-five percent (25%) of the aggregate outstanding Equipment Advances
finance the licensing of software. Amounts borrowed pursuant to this Section 2.1
may not be reborrowed once repaid.
(b) Procedures. Whenever Borrower desires an
Advance, Borrower shall notify Bank by facsimile transmission or telephone no
later than 3:00 p.m. California time, one (1) Business Day before the day on
which the Advance is requested to be made. Each such notification shall be
promptly confirmed by a Payment/Advance Form in substantially the form of
Exhibit B hereto. The notice shall be signed by a Responsible Officer and
include a copy of the invoice for the Eligible Equipment to be financed. Bank is
authorized to make Advances under this Agreement, based upon instructions
received from a Responsible Officer, or without instructions if in Bank's
discretion such Advances are necessary to meet Obligations which have become due
and remain unpaid. Bank shall be entitled to rely on any telephonic notice given
by a person who Bank reasonably believes to be a Responsible Officer, and
Borrower shall indemnify and hold Bank harmless for any damages or loss suffered
by Bank as a result of such reliance. Bank will credit the amount of Advances
made under this Section 2.1 to Borrower's deposit account.
(c) Interest. Interest shall accrue from the date of
each Advance at the rate specified in Section 2.2(a), and shall be payable
monthly on the twenty-fifth calendar day of the month for each month through the
month in which the Equipment Availability Date falls. All Advances that are
outstanding on the Equipment Availability Date (the "Loan Amount") will be
payable in thirty-six (36) monthly installments of principal, plus accrued
interest, on the twenty-fifth calendar day of the month for each month through
the Maturity Date.
(d) Maturity. The Equipment Facility shall terminate
on the Maturity Date, at which time all Advances under this Section 2.1 and
other amounts due under this Agreement shall be immediately due and payable.
2.2 Interest Rates, Payments, and Calculations.
(a) Interest Rate. Except as set forth in Section
2.2(b), all outstanding Advances shall bear interest at a rate equal to
one-quarter of one percentage point (0.25%) above the Prime Rate.
(b) Default Rate. All Obligations shall bear
interest, after the occurrence and during the continuance of an Event of
Default, at a rate equal to five (5) percentage points above the interest rate
applicable immediately prior to the occurrence of the Event of Default.
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(c) Payments. Interest hereunder shall be due and
payable on the last calendar day of each month during the term hereof. Bank
shall, at its option, charge such interest, all Bank Expenses, and all Periodic
Payments against any of Borrower's deposit accounts or against the Committed
Loan Amount, in which case those amounts shall thereafter accrue interest at the
rate then applicable hereunder. Any interest not paid when due shall be
compounded by becoming a part of the Obligations, and such interest shall
thereafter accrue interest at the rate then applicable hereunder.
(d) Computation. In the event the Prime Rate is
changed from time to time hereafter, the applicable rate of interest hereunder
shall be increased or decreased effective as of 12:01 a.m. on the day the Prime
Rate is changed, by an amount equal to such change in the Prime Rate. All
interest chargeable under the Loan Documents shall be computed on the basis of a
three hundred sixty (360) day year for the actual number of days elapsed.
2.3 Crediting Payments. Prior to the occurrence of an
Event of Default, Bank shall credit a wire transfer of funds, check or other
item of payment to such deposit account or Obligation as Borrower specifies.
After the occurrence and during the continuance of an Event of Default, the
receipt by Bank of any wire transfer of funds, check, or other item of payment
shall be immediately applied to conditionally reduce Obligations, but shall not
be considered a payment on account unless such payment is of immediately
available federal funds or unless and until such check or other item of payment
is honored when presented for payment. Notwithstanding anything to the contrary
contained herein, any wire transfer or payment received by Bank after 12:00 noon
California time shall be deemed to have been received by Bank as of the opening
of business on the immediately following Business Day. Whenever any payment to
Bank under the Loan Documents would otherwise be due (except by reason of
acceleration) on a date that is not a Business Day, such payment shall instead
be due on the next Business Day, and additional fees or interest, as the case
may be, shall accrue and be payable for the period of such extension.
2.4 Fees. Borrower shall pay to Bank the following:
(a) Facility Fee. A Facility Fee equal to (i) Six
Thousand Two Hundred Fifty Dollars ($6,250), which fee shall be due on the
Closing Date and shall be fully earned and non-refundable, plus (ii) Six
Thousand Two Hundred Fifty Thousand Dollars ($6250), which fee shall be due and
payable on the date that the sum of all outstanding Advances under this
Agreement first exceeds Two Million Five Hundred Thousand Dollars ($2,500,000)
and shall be fully earned and non-refundable as of such date;
(b) Financial Examination and Appraisal Fees. Bank's
customary fees and out-of-pocket expenses for Bank's audits of Borrower's
Accounts, and for each appraisal of Collateral and financial analysis and
examination of Borrower performed from time to time by Bank or its agents; and,
(c) Bank Expenses. Upon the date hereof, all Bank
Expenses incurred through the Closing Date, including reasonable attorneys' fees
and expenses, and, after the date hereof, all Bank Expenses, including
reasonable attorneys' fees and expenses, as and when they become due.
2.5 Additional Costs. In case any change in any law,
regulation, treaty or official directive or the interpretation or application
thereof by any court or any governmental authority charged with the
administration thereof or the compliance with any guideline or request of any
central bank or
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other governmental authority (whether or not having the force of law), in each
case after the date of this Agreement:
(a) subjects Bank to any tax with respect to
payments of principal or interest or any other amounts payable hereunder by
Borrower or otherwise with respect to the transactions contemplated hereby
(except for taxes on the overall net income of Bank imposed by the United States
of America or any political subdivision thereof);
(b) imposes, modifies or deems applicable any
deposit insurance, reserve, special deposit or similar requirement against
assets held by, or deposits in or for the account of, or loans by, Bank; or
(c) imposes upon Bank any other condition with
respect to its performance under this Agreement,
and the result of any of the foregoing is to increase the cost to Bank, reduce
the income receivable by Bank or impose any expense upon Bank with respect to
any loans, Bank shall notify Borrower thereof. Borrower agrees to pay to Bank
the amount of such increase in cost, reduction in income or additional expense
as and when such cost, reduction or expense is incurred or determined, upon
presentation by Bank of a statement of the amount and setting forth Bank's
calculation thereof, all in reasonable detail, which statement shall be deemed
true and correct absent manifest error; provided, however, that Borrower shall
not be liable for any such amount attributable to any period prior to the date
that is one hundred eighty (180) days prior to the date of such certificate.
2.6 Term. This Agreement shall become effective on the
Closing Date and, subject to Section 12.7, shall continue in full force and
effect for a term ending on the Maturity Date. Notwithstanding the foregoing,
Bank shall have the right to terminate its obligation to make Advances under
this Agreement immediately and without notice upon the occurrence and during the
continuance of an Event of Default. Notwithstanding termination, Bank's Lien on
the Collateral shall remain in effect for so long as any Obligations are
outstanding (excluding Obligations under Section 2.5 and 12.2 to the extent they
remain inchoate at the time outstanding payment obligations are paid in full).
3. CONDITIONS OF LOANS
3.1 Conditions Precedent to Initial Advance. The
obligation of Bank to make the initial Advance is subject to the condition
precedent that Bank shall have received, in form and substance satisfactory to
Bank, the following:
(a) this Agreement;
(b) a certificate of the Secretary of Borrower with
respect to incumbency and resolutions authorizing the execution and delivery of
this Agreement;
(c) financing statements (Forms UCC-1);
(d) insurance certificate;
(e) payment of the fees and Bank Expenses then due
specified in Section 2.4 hereof; and
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(f) such other documents, and completion of such
other matters, as Bank may reasonably deem necessary or appropriate.
3.2 Conditions Precedent to all Advances. The
obligation of Bank to make each Advance, including the initial Advance, is
further subject to the following conditions:
(a) timely receipt by Bank of the Payment/Advance
Form as provided in Section 2.1;
(b) timely receipt of the invoices and/or other
documents specified in Section 2.1 hereof; and
(c) the representations and warranties contained in
Section 5 shall be true and correct in all material respects on and as of the
date of such Payment/Advance Form and on the effective date of each Advance as
though made at and as of each such date, and no Event of Default shall have
occurred and be continuing, or would result from such Advance (except to the
extent they relate specifically to any earlier date, in which case such
representations and warranties shall continue to have been true and accurate as
of such date). The making of each Advance shall be deemed to be a representation
and warranty by Borrower on the date of such Advance as to the accuracy of the
facts referred to in this Section 3.2(c).
4. CREATION OF SECURITY INTEREST
4.1 Grant of Security Interest. Borrower grants and
pledges to Bank a continuing security interest in all presently existing and
hereafter acquired or arising Collateral in order to secure prompt repayment of
any and all Obligations and in order to secure prompt performance by Borrower of
each of its covenants and duties under the Loan Documents. Except as set forth
in the Schedule, such security interest constitutes a valid, first priority
security interest in the presently existing Collateral, and will constitute a
valid, first priority security interest in Collateral acquired after the date
hereof, in each case, to the extent that a security interest in such Collateral
can be perfected by the filing of a financing statement or, in the case of
Collateral consisting of instruments, documents, chattel paper or certificated
securities, to the extent that Bank takes possession of such Collateral.
4.2 Delivery of Additional Documentation Required.
Borrower shall from time to time execute and deliver to Bank, at the request of
Bank, all Negotiable Collateral, all financing statements and other documents
that Bank may reasonably request, in form satisfactory to Bank, to perfect and
continue perfected Bank's security interests in the Collateral and in order to
fully consummate all of the transactions contemplated under the Loan Documents.
4.3 Right to Inspect. Bank (through any of its
officers, employees, or agents) shall have the right, upon reasonable prior
notice, from time to time during Borrower's usual business hours, to inspect
Borrower's Books and to make copies thereof and to check, test, and appraise the
Collateral in order to verify Borrower's financial condition or the amount,
condition of, or any other matter relating to, the Collateral, provided that all
such information shall be subject to Section 12.8.
4.4 Requirement for Cash Collateral. If at any time the
Remaining Months Liquidity of Borrower is less than nine (9) months, Borrower
shall pledge cash or a certificate of deposit to the Bank in an amount equal to
twenty-five percent (25%) of the outstanding Obligations hereunder.
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5. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 Due Organization and Qualification. Borrower and
each Subsidiary is a corporation duly existing and in good standing under the
laws of its state of incorporation and qualified and licensed to do business in,
and is in good standing in, any state in which the conduct of its business or
its ownership of property requires that it be so qualified, except for states as
to which any failure to so qualify would not have a Material Adverse Effect.
5.2 Due Authorization; No Conflict. The execution,
delivery, and performance of the Loan Documents are within Borrower's powers,
have been duly authorized, and are not in conflict with nor constitute a breach
of any provision contained in Borrower's Articles of Incorporation or Bylaws,
nor will they constitute an event of default under any material agreement to
which Borrower is a party or by which Borrower is bound. Borrower is not in
default under any agreement to which it is a party or by which it is bound,
which default could reasonably be expected to have a Material Adverse Effect.
5.3 No Prior Encumbrances. Borrower has good and
indefeasible title to the Collateral, free and clear of Liens, except for
Permitted Liens.
5.4 Bona Fide Eligible Accounts. The Eligible Accounts
are bona fide existing obligations. The property giving rise to such Eligible
Accounts has been delivered to the account debtor or to the account debtor's
agent for immediate shipment to and unconditional acceptance by the account
debtor. Borrower has not received notice of actual or imminent Insolvency
Proceeding of any account debtor that is included in any Borrowing Base
Certificate as an Eligible Account.
5.5 Merchantable Inventory. All Inventory is in all
material respects of good and marketable quality, free from all material
defects.
5.6 Name; Location of Chief Executive Office. Except as
disclosed in the Schedule, Borrower has not done business under any name other
than that specified on the signature page hereof. The chief executive office of
Borrower is located at the address indicated in Section 10 hereof.
5.7 Litigation. Except as set forth in the Schedule,
there are no actions or proceedings pending by or against Borrower or any
Subsidiary before any court or administrative agency in which an adverse
decision could reasonably be expected to have a Material Adverse Effect or a
material adverse effect on Borrower's interest or Bank's security interest in
the Collateral. Borrower does not have knowledge of any such pending or
threatened actions or proceedings.
5.8 No Material Adverse Change in Financial Statements.
All consolidated financial statements related to Borrower and any Subsidiary
that have been delivered by Borrower to Bank fairly present in all material
respects Borrower's consolidated financial condition as of the date thereof and
Borrower's consolidated results of operations for the period then ended. There
has not been a material adverse change in the consolidated financial condition
of Borrower since the date of the most recent of such financial statements
submitted to Bank.
5.9 Solvency. The fair saleable value of Borrower's
assets (including goodwill minus disposition costs) exceeds the fair value of
its liabilities; Borrower is not left with unreasonably
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small capital after the transactions contemplated by this Agreement; and
Borrower is able to pay its debts (including trade debts) as they mature.
5.10 Regulatory Compliance. Borrower and each Subsidiary
has met the minimum funding requirements of ERISA with respect to any employee
benefit plans subject to ERISA. No event has occurred resulting from Borrower's
failure to comply with ERISA that is reasonably likely to result in Borrower's
incurring any liability that could reasonably be expected to have a Material
Adverse Effect. Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940. Borrower is not engaged principally, or as one of the
important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulations G, T and
U of the Board of Governors of the Federal Reserve System). Borrower has
complied with all the provisions of the Federal Fair Labor Standards Act.
Borrower has not violated any statutes, laws, ordinances or rules applicable to
it, violation of which could reasonably be expected to have a Material Adverse
Effect.
5.11 Environmental Condition. None of Borrower's or any
Subsidiary's properties or assets has ever been used by Borrower or any
Subsidiary or, to the best of Borrower's knowledge, by previous owners or
operators, in the disposal of, or to produce, store, handle, treat, release, or
transport, any hazardous waste or hazardous substance other than in accordance
with applicable law; to the best of Borrower's knowledge, none of Borrower's
properties or assets has ever been designated or identified in any manner
pursuant to any environmental protection statute as a hazardous waste or
hazardous substance disposal site, or a candidate for closure pursuant to any
environmental protection statute; no lien arising under any environmental
protection statute has attached to any revenues or to any real or personal
property owned by Borrower or any Subsidiary; and neither Borrower nor any
Subsidiary has received a summons, citation, notice, or directive from the
Environmental Protection Agency or any other federal, state or other
governmental agency concerning any action or omission by Borrower or any
Subsidiary resulting in the releasing, or otherwise disposing of hazardous waste
or hazardous substances into the environment.
5.12 Taxes. Borrower and each Subsidiary has filed or
caused to be filed all tax returns required to be filed, and has paid, or has
made adequate provision for the payment of, all taxes reflected therein.
5.13 Subsidiaries. Borrower does not own any stock,
partnership interest or other equity securities of any Person, except for
Permitted Investments.
5.14 Government Consents. Borrower and each Subsidiary
has obtained all consents, approvals and authorizations of, made all
declarations or filings with, and given all notices to, all governmental
authorities that are necessary for the continued operation of Borrower's
business as currently conducted except where the failure to obtain any such
consent, approval or authorization, to make any such declaration or filing, or
to be given any such notice could not reasonably be expected to have a Material
Adverse Effect.
5.15 Full Disclosure. No representation, warranty or
other statement made by Borrower in any certificate or written statement
furnished to Bank contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained in
such certificates or statements not misleading (it being recognized by Bank that
the projections and forecasts provided by Borrower are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections and forecasts may differ from the projected or forecasted results).
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6. AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, until payment in full
of all outstanding Obligations, and for so long as Bank may have any commitment
to make an Advance hereunder, Borrower shall do all of the following:
6.1 Good Standing. Borrower shall maintain or cause to
be maintained its and each of its Subsidiaries' corporate existence and good
standing in its jurisdiction of incorporation and maintain qualification in each
jurisdiction in which the failure to so qualify could reasonably be expected to
have a Material Adverse Effect. Borrower shall maintain, and shall cause each of
its Subsidiaries to maintain, to the extent consistent with prudent management
of Borrower's business, in force all licenses, approvals and agreements, the
loss of which could reasonably be expected to have a Material Adverse Effect.
6.2 Government Compliance. Borrower shall meet, and
shall cause each Subsidiary to meet, the minimum funding requirements of ERISA
with respect to any employee benefit plans subject to ERISA. Borrower shall
comply, and shall cause each Subsidiary to comply, with all statutes, laws,
ordinances and government rules and regulations to which it is subject,
noncompliance with which could reasonably be expected to have a Material Adverse
Effect or a material adverse effect on the Collateral or the priority of Bank's
Lien on the Collateral.
6.3 Financial Statements, Reports, Certificates. Borrower
shall deliver to Bank: (a) as soon as available, but in any event within thirty
(30) days after the end of each month, a company prepared consolidated balance
sheet and income statement covering Borrower's consolidated operations during
such period, certified by a Responsible Officer; (b) as soon as available, but
in any event within ninety (90) days after the end of Borrower's fiscal year,
audited consolidated financial statements of Borrower prepared in accordance
with GAAP, consistently applied, together with an unqualified opinion on such
financial statements of an independent certified public accounting firm
reasonably acceptable to Bank; (c) within fifteen (15) days upon becoming
available, copies of all statements, reports and notices sent or made available
generally by Borrower to its security holders or to any holders of Subordinated
Debt and all reports on Form 10-K and 10-Q filed with the Securities and
Exchange Commission; (d) promptly upon receipt of notice thereof, a report of
any legal actions pending or threatened against Borrower or any Subsidiary that
could result in damages or costs to Borrower or any Subsidiary of One Hundred
Thousand Dollars ($100,000) or more; and (e) such budgets, sales projections,
operating plans or other financial information as Bank may reasonably request
from time to time.
Borrower shall deliver to Bank within thirty (30) days after the end
of each month a Compliance Certificate signed by a Responsible Officer in
substantially the form of Exhibit C hereto.
6.4 Inventory; Returns. Borrower shall keep all Inventory
in good and marketable condition, free from all material defects. Returns and
allowances, if any, as between Borrower and its account debtors shall be on the
same basis and in accordance with the usual customary practices of Borrower, as
they exist at the time of the execution and delivery of this Agreement. Borrower
shall promptly notify Bank of all returns and recoveries and of all disputes and
claims, where the return, recovery, dispute or claim involves more than One
Hundred Thousand Dollars ($100,000).
6.5 Taxes. Borrower shall make, and shall cause each
Subsidiary to make, due and timely payment or deposit of all material federal,
state, and local taxes, assessments, or contributions required of it by law, and
will execute and deliver to Bank, on demand, appropriate certificates attesting
to the payment or deposit thereof; and Borrower will make, and will cause each
Subsidiary to make,
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timely payment or deposit of all material tax payments and withholding taxes
required of it by applicable laws, including, but not limited to, those laws
concerning F.I.C.A., F.U.T.A., state disability, and local, state, and federal
income taxes, and will, upon request, furnish Bank with proof satisfactory to
Bank indicating that Borrower or a Subsidiary has made such payments or
deposits; provided that Borrower or a Subsidiary need not make any payment if
the amount or validity of such payment is contested in good faith by appropriate
proceedings and is reserved against (to the extent required by GAAP) by
Borrower.
6.6 Insurance.
(a) Borrower, at its expense, shall keep the
Collateral insured against loss or damage by fire, theft, explosion, sprinklers,
and all other hazards and risks, and in such amounts, as ordinarily insured
against by other owners in similar businesses conducted in the locations where
Borrower's business is conducted on the date hereof. Borrower shall also
maintain insurance relating to Borrower's ownership and use of the Collateral in
amounts and of a type that are customary to businesses similar to Borrower's.
(b) All such policies of insurance shall be in such
form, with such companies, and in such amounts as reasonably satisfactory to
Bank. All such policies of property insurance shall contain a lender's loss
payable endorsement, in a form satisfactory to Bank, showing Bank as an
additional loss payee thereof and all liability insurance policies shall show
the Bank as an additional insured, and shall specify that the insurer must give
at least twenty (20) days notice to Bank before canceling its policy for any
reason. Upon Bank's request, Borrower shall deliver to Bank certified copies of
such policies of insurance and evidence of the payments of all premiums
therefor. So long as no Event of Default has occurred and is continuing,
Borrower shall have the option of applying the proceeds of any casualty policy
to the replacement or repair of destroyed or damaged property; provided, that
after the occurrence and during the continuance of an Event of Default, all
proceeds payable under any such policy shall, at the option of Bank, be payable
to Bank for application to the Obligations.
6.7 Principal Depository. Borrower shall maintain its
principal depository and operating accounts with Bank.
6.8 Location of Equipment. Borrower shall maintain all
Equipment financed hereunder at its California facilities.
6.9 Minimum Liquidity. Subject to the following
sentence, Borrower shall maintain, as of the last day of each calendar month, a
Cash Balance of at least the greater of (a) two (2) timesoutstanding Advances or
(b) Remaining Months Liquidity of at least six months. From and after the
Covenant Conversion Date, Borrower shall maintain, as of the last day of each of
Borrower's fiscal quarters, a Cash Balance of at least the greater of (a) two
times outstanding Advances, or Remaining Months Liquidity of at least six
months.
6.10 Tangible Net Worth. Subject to the following
sentence, Borrower shall maintain, as of each calendar month, a Tangible Net
Worth of not less than Twelve Million Five Hundred Thousand Dollars
($12,500,000). From and after the Covenant Conversion Date, Borrower shall
maintain, as of the last day of each of Borrower's fiscal quarters, a Tangible
Net Worth of not less than Twelve Million Five Hundred Thousand Dollars
($12,500,000).
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6.11 Further Assurances. At any time and from time to
time Borrower shall execute and deliver such further instruments and take such
further action as may reasonably be requested by Bank to effect the purposes of
this Agreement.
7. NEGATIVE COVENANTS
Borrower covenants and agrees that, so long as any credit
hereunder shall be available and until payment in full
of the outstanding Obligations or for so long as Bank may have any commitment to
make any Advances, Borrower will not do any of the following:
7.1 Dispositions. Convey, sell, lease, transfer or
otherwise dispose of (collectively, a "Transfer"), or permit any of its
Subsidiaries to Transfer, all or any part of its business or property, other
than: (i) Transfers of Inventory in the ordinary course of business; (ii)
Transfers of non-exclusive licenses and similar arrangements for the use of the
property of Borrower or its Subsidiaries; (iii) Transfers of worn-out or
obsolete Equipment; (iv) Transfers which constitute liquidation of Investments
permitted under Section 7.7; or (v) other Transfers not otherwise permitted by
this Section 7.1 not exceeding One Hundred Thousand Dollars ($100,000) in the
aggregate in any fiscal year.
7.2 Change in Business. Engage in any business, or
permit any of its Subsidiaries to engage in any business, other than the
businesses currently engaged in by Borrower and any business substantially
similar or related thereto (or incidental thereto), or suffer a change in thirty
percent (30%) of Borrower's ownership. Borrower will not, without thirty (30)
days prior written notification to Bank, relocate its chief executive office.
7.3 Mergers or Acquisitions. Merge or consolidate, or
permit any of its Subsidiaries to merge or consolidate, with or into any other
business organization, or acquire, or permit any of its Subsidiaries to acquire,
all or substantially all of the capital stock or property of another Person,
except transactions among Subsidiaries or among Borrower and its Subsidiaries in
which Borrower is the surviving entity, and except for transactions involving
Two Million Dollars ($2,000,000) in the aggregate in any fiscal year.
7.4 Indebtedness. Create, incur, assume or be or remain
liable with respect to any Indebtedness, or permit any Subsidiary so to do,
other than Permitted Indebtedness.
7.5 Encumbrances. Create, incur, assume or suffer to
exist any Lien with respect to any of its property, or assign or otherwise
convey any right to receive income, including the sale of any Accounts, or
permit any of its Subsidiaries so to do, except for Permitted Liens.
7.6 Distributions. Pay any dividends or make any other
distribution or payment on account of or in redemption, retirement or purchase
of any capital stock; provided, that (i) Borrower may declare and make any
dividend payment or other distribution payable in its equity securities, (ii)
Borrower may convert any of its convertible securities into other securities
pursuant to the terms of such convertible securities or otherwise in exchange
therefor, and (iii) for so long as an Event of Default has not occurred or would
not exist after giving effect thereto, Borrower may repurchase stock from former
employees of Borrower in accordance with the terms of repurchase or similar
agreements between Borrower and such employees in an aggregate amount of up to
One Million Dollars ($1,000,000) per fiscal year.
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7.7 Investments. Directly or indirectly acquire or own,
or make any Investment in or to any Person, or permit any of its Subsidiaries so
to do, other than Permitted Investments.
7.8 Transactions with Affiliates. Directly or
indirectly enter into or permit to exist any material transaction with any
Affiliate of Borrower except for transactions that are in the ordinary course of
Borrower's business, upon fair and reasonable terms that are no less favorable
to Borrower than would be obtained in an arm's length transaction with a
nonaffiliated Person and except for transactions with a Subsidiary that are upon
fair and reasonable terms and transactions constituting Permitted Investments.
7.9 Subordinated Debt. Make any payment in respect of
any Subordinated Debt, or permit any of its Subsidiaries to make any such
payment, except in compliance with the terms of such Subordinated Debt, or amend
any provision contained in any documentation relating to the Subordinated Debt
without Bank's prior written consent.
7.10 Inventory. Store the Inventory with a bailee,
warehouseman, or similar party unless Bank has received a pledge of the
warehouse receipt covering such Inventory. Except for Inventory sold in the
ordinary course of business and except for such other locations as Bank may
approve in writing and demonstration Inventory or Inventory that is in transit,
Borrower shall keep the Inventory only at the location set forth in Section 10
hereof and such other locations of which Borrower gives Bank prior written
notice and as to which Borrower signs and files a financing statement where
needed to perfect Bank's security interest.
7.11 Compliance. Become an "investment company" or
become controlled by an "investment company," within the meaning of the
Investment Company Act of 1940, or become principally engaged in, or undertake
as one of its important activities, the business of extending credit for the
purpose of purchasing or carrying margin stock, or use the proceeds of any
Advance for such purpose. Fail to meet the minimum funding requirements of
ERISA, permit a Reportable Event or Prohibited Transaction, as defined in ERISA,
to occur, fail to comply with the Federal Fair Labor Standards Act or violate
any law or regulation, which violation could have a Material Adverse Effect or a
material adverse effect on the Collateral or the priority of Bank's Lien on the
Collateral, or permit any of its Subsidiaries to do any of the foregoing.
8. EVENTS OF DEFAULT
Any one or more of the following events shall constitute an
Event of Default by Borrower under this Agreement:
8.1 Payment Default. If Borrower fails to pay the
principal of, or any interest on, any Advances when due and payable; or fails to
pay any portion of any other Obligations not constituting such principal or
interest, including without limitation Bank Expenses, within thirty (30) days of
receipt by Borrower of an invoice for such other Obligations;
8.2 Covenant Default. If Borrower fails to perform any
obligation under Sections 6.7, 6.9 or 6.10 or violates any of the covenants
contained in Article 7 of this Agreement, or fails or neglects to perform, keep,
or observe any other material term, provision, condition, covenant, or agreement
contained in this Agreement, in any of the Loan Documents, or in any other
present or future agreement between Borrower and Bank and as to any default
under such other term, provision, condition, covenant or agreement that can be
cured, has failed to cure such default within ten (10) days after
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<PAGE> 22
Borrower receives notice thereof or any officer of Borrower becomes aware
thereof; provided, however, that if the default cannot by its nature be cured
within the ten (10) day period or cannot after diligent attempts by Borrower be
cured within such ten (10) day period, and such default is likely to be cured
within a reasonable time, then Borrower shall have an additional reasonable
period (which shall not in any case exceed thirty (30) days) to attempt to cure
such default, and within such reasonable time period the failure to have cured
such default shall not be deemed an Event of Default (provided that no Advances
will be required to be made during such cure period);
8.3 Material Adverse Change. If there occurs a material
adverse change in Borrower's business or financial condition, or if there is a
material impairment of the prospect of repayment of any portion of the
Obligations or a material impairment of the value or priority of Bank's security
interests in the Collateral;
8.4 Attachment. If any material portion of Borrower's
assets is attached, seized, subjected to a writ or distress warrant, or is
levied upon, or comes into the possession of any trustee, receiver or person
acting in a similar capacity and such attachment, seizure, writ or distress
warrant or levy has not been removed, discharged or rescinded within ten (10)
days, or if Borrower is enjoined, restrained, or in any way prevented by court
order from continuing to conduct all or any material part of its business
affairs, or if a judgment or other claim becomes a lien or encumbrance upon any
material portion of Borrower's assets, or if a notice of lien, levy, or
assessment is filed of record with respect to any of Borrower's assets by the
United States Government, or any department, agency, or instrumentality thereof,
or by any state, county, municipal, or governmental agency, and the same is not
paid within ten (10) days after Borrower receives notice thereof, provided that
none of the foregoing shall constitute an Event of Default where such action or
event is stayed or an adequate bond has been posted pending a good faith contest
by Borrower (provided that no Advances will be required to be made during such
cure period);
8.5 Insolvency. If Borrower becomes insolvent, or if an
Insolvency Proceeding is commenced by Borrower, or if an Insolvency Proceeding
is commenced against Borrower and is not dismissed or stayed within thirty (30)
days (provided that no Advances will be made prior to the dismissal of such
Insolvency Proceeding);
8.6 Other Agreements.W If there is a default in any
agreement to which Borrower is a party with a third party or parties resulting
in a right by such third party or parties, whether or not exercised, to
accelerate the maturity of any Indebtedness in an amount in excess of Five
Hundred Thousand Dollars ($500,000) or that could reasonably be expected to have
a Material Adverse Effect;
8.7 Subordinated Debt. If Borrower makes any payment on
account of Subordinated Debt, except to the extent such payment is allowed under
any subordination agreement entered into with Bank;
8.8 Judgments. If a judgment or judgments for the
payment of money in an amount, individually or in the aggregate, of at least
Five Hundred Thousand Dollars ($500,000) shall be rendered against Borrower and
shall remain unsatisfied and unstayed for a period of ten (10) days (provided
that no Advances will be made prior to the satisfaction or stay of such
judgment); or
8.9 Misrepresentations. If any material
misrepresentation or material misstatement exists now or hereafter in any
warranty or representation set forth herein or in any certificate delivered to
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Bank by any Responsible Officer pursuant to this Agreement or to induce Bank to
enter into this Agreement or any other Loan Document.
9. BANK'S RIGHTS AND REMEDIES
9.1 Rights and Remedies. Upon the occurrence and during
the continuance of an Event of Default, Bank may, at its election, without
notice of its election and without demand, do any one or more of the following,
all of which are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by
this Agreement, by any of the other Loan Documents, or otherwise, immediately
due and payable (provided that upon the occurrence of an Event of Default
described in Section 8.5 all Obligations shall become immediately due and
payable without any action by Bank);
(b) Cease advancing money or extending credit to or
for the benefit of Borrower under this Agreement or under any other agreement
between Borrower and Bank;
(c) Settle or adjust disputes and claims directly
with account debtors for amounts, upon terms and in whatever order that Bank
reasonably considers advisable;
(d) Without notice to or demand upon Borrower, make
such payments and do such acts as Bank considers necessary or reasonable to
protect its security interest in the Collateral. Borrower agrees to assemble the
Collateral if Bank so requires, and to make the Collateral available to Bank as
Bank may designate. Borrower authorizes Bank to enter the premises where the
Collateral is located, to take and maintain possession of the Collateral, or any
part of it, and to pay, purchase, contest, or compromise any encumbrance,
charge, or lien which in Bank's determination appears to be prior or superior to
its security interest and to pay all expenses incurred in connection therewith.
With respect to any of Borrower's owned premises, Borrower hereby grants Bank a
license to enter into possession of such premises and to occupy the same,
without charge, in order to exercise any of Bank's rights or remedies provided
herein, at law, in equity, or otherwise;
(e) Without notice to Borrower set off and apply to
the Obligations any and all (i) balances and deposits of Borrower held by Bank,
or (ii) indebtedness at any time owing to or for the credit or the account of
Borrower held by Bank;
(f) Ship, reclaim, recover, store, finish, maintain,
repair, prepare for sale, advertise for sale, and sell (in the manner provided
for herein) the Collateral. Bank is hereby granted a license or other right,
solely pursuant to the provisions of this Section 9.1, to use, without charge,
Borrower's labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks, and advertising matter, or any
property of a similar nature, as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Bank's exercise of its rights under this Section 9.1, Borrower's
rights under all licenses and all franchise agreements shall inure to Bank's
benefit;
(g) Sell the Collateral at either a public or
private sale, or both, by way of one or more contracts or transactions, for cash
or on terms, in such manner and at such places (including Borrower's premises)
as Bank determines is commercially reasonable, and apply any proceeds to the
Obligations in whatever manner or order Bank deems appropriate;
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(h) Bank may credit bid and purchase at any public
sale; and
(i) Any deficiency that exists after disposition of
the Collateral as provided above will be paid immediately by Borrower.
9.2 Power of Attorney. Effective only upon the
occurrence and during the continuance of an Event of Default, Borrower hereby
irrevocably appoints Bank (and any of Bank's designated officers, or employees)
as Borrower's true and lawful attorney to: (a) send requests for verification of
Accounts or notify account debtors of Bank's security interest in the Accounts;
(b) endorse Borrower's name on any checks or other forms of payment or security
that may come into Bank's possession; (c) sign Borrower's name on any invoice or
bill of lading relating to any Account, drafts against account debtors,
schedules and assignments of Accounts, verifications of Accounts, and notices to
account debtors; (d) make, settle, and adjust all claims under and decisions
with respect to Borrower's policies of insurance; and (e) settle and adjust
disputes and claims respecting the accounts directly with account debtors, for
amounts and upon terms which Bank determines to be reasonable; provided Bank may
exercise such power of attorney to sign the name of Borrower on any of the
documents described in Section 4.2 regardless of whether an Event of Default has
occurred. The appointment of Bank as Borrower's attorney in fact, and each and
every one of Bank's rights and powers, being coupled with an interest, is
irrevocable until all of the Obligations have been fully repaid and performed
and Bank's obligation to provide advances hereunder is terminated.
9.3 Accounts Collection. At any time from the date of
this Agreement, Bank may notify any Person owing funds to Borrower of Bank's
security interest in such funds and verify the amount of such Account. Upon the
occurrence and during the continuance of an Event of Default, Borrower shall
collect all amounts owing to Borrower for Bank, receive in trust all payments as
Bank's trustee, and immediately deliver such payments to Bank in their original
form as received from the account debtor, with proper endorsements for deposit.
9.4 Bank Expenses. If Borrower fails to pay any amounts
or furnish any required proof of payment due to third persons or entities, as
required under the terms of this Agreement, then Bank may do any or all of the
following: (a) make payment of the same or any part thereof; (b) set up such
reserves under the Revolving Facility as Bank deems necessary to protect Bank
from the exposure created by such failure; or (c) obtain and maintain insurance
policies of the type discussed in Section 6.6 of this Agreement, and take any
action with respect to such policies as Bank deems prudent. Any amounts so paid
or deposited by Bank shall constitute Bank Expenses, shall be immediately due
and payable, and shall bear interest at the then applicable rate hereinabove
provided, and shall be secured by the Collateral. Any payments made by Bank
shall not constitute an agreement by Bank to make similar payments in the future
or a waiver by Bank of any Event of Default under this Agreement.
9.5 Bank's Liability for Collateral. So long as Bank
complies with reasonable banking practices, Bank shall not in any way or manner
be liable or responsible for: (a) the safekeeping of the Collateral; (b) any
loss or damage thereto occurring or arising in any manner or fashion from any
cause; (c) any diminution in the value thereof; or (d) any act or default of any
carrier, warehouseman, bailee, forwarding agency, or other person whomsoever.
Subject to the foregoing, all risk of loss, damage or destruction of the
Collateral shall be borne by Borrower.
9.6 Remedies Cumulative. Bank's rights and remedies
under this Agreement, the Loan Documents, and all other agreements shall be
cumulative. Bank shall have all other rights and remedies not inconsistent
herewith as provided under the Code, by law, or in equity. No exercise by
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Bank of one right or remedy shall be deemed an election, and no waiver by Bank
of any Event of Default on Borrower's part shall be deemed a continuing waiver.
No delay by Bank shall constitute a waiver, election, or acquiescence by it. No
waiver by Bank shall be effective unless made in a written document signed on
behalf of Bank and then shall be effective only in the specific instance and for
the specific purpose for which it was given.
9.7 Demand; Protest. Borrower waives demand, protest,
notice of protest, notice of default or dishonor, notice of payment and
nonpayment, notice of any default, nonpayment at maturity, release, compromise,
settlement, extension, or renewal of accounts, documents, instruments, chattel
paper, and guarantees at any time held by Bank on which Borrower may in any way
be liable.
10. NOTICES
Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other agreement entered
into in connection herewith shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by a recognized
overnight delivery service, certified mail, postage prepaid, return receipt
requested, or by telefacsimile to Borrower or to Bank, as the case may be, at
its addresses set forth below:
If to Borrower: Infoseek Corporation
2620 Augustine Dr., Suite 250
Santa Clara, CA 95054
Attn: Tom Browne
FAX: (408) 986-1889
If to Bank: Silicon Valley Bank
3003 Tasman Drive
Santa Clara, CA 95054
Attn: Jeff Huhn
FAX: (408) 748-9478
The parties hereto may change the address at which they are to
receive notices hereunder, by notice in writing in the foregoing manner given to
the other.
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11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of California, without regard to
principles of conflicts of law. Each of Borrower and Bank hereby submits to the
exclusive jurisdiction of the state and Federal courts located in the County of
Santa Clara, State of California. BORROWER AND BANK EACH HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
12. GENERAL PROVISIONS
12.1 Successors and Assigns
(a) This Agreement shall bind and inure to the
benefit of the respective successors and permitted assigns of each of the
parties; provided, however, that neither this Agreement nor any rights hereunder
may be assigned by Borrower without Bank's prior written consent, which consent
may be granted or withheld in Bank's sole discretion. Bank shall have the right
without the consent of or notice to Borrower to sell, transfer, negotiate, or
grant participation in all or any part of, or any interest in, Bank's
obligations, rights and benefits hereunder, subject to the provisions of this
Section 12.1.
(b) Bank may sell, negotiate or grant participations
to other financial institutions in all or part of the obligations of the
Borrower outstanding under the Loan Documents, without notice to or the approval
of Borrower; provided that any such sale, negotiation or participation shall be
in compliance with the applicable federal and state securities laws and the
other requirements of this Section 12.1. Notwithstanding the sale, negotiation
or grant of participations, Bank shall remain solely responsible for the
performance of its obligations under this Agreement, and Borrower shall continue
to deal solely and directly with Bank in connection with this Agreement and the
other Loan Documents.
(c) The grant of a participation interest shall be
on such terms as Bank determines are appropriate, provided only that (1) the
holder of such a participation interest shall not have any of the rights of Bank
under this Agreement except, if the participation agreement so provides, rights
to demand the payment of costs of the type described in Section 2.6, provided
that the aggregate amount that the Borrower shall be required to pay under
Section 2.6 with respect to any ratable share of the Committed Loan Amount or
any Advance (including amounts paid to participants) shall not exceed the amount
that Borrower would have had to pay if no participation agreements had been
entered into, and (2) the consent of the holder of such a participation interest
shall not be required for amendments or waivers of provisions of the Loan
Agreement other than those which (i) increase the amount of the Committed Loan
Amount, (ii) extend the term of this Agreement, (iii) decrease the rate of
interest or the amount of any fee or any other amount payable to Bank under this
Agreement, (iv) reduce the principal
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amount payable under this Agreement, or (v) extend the date fixed for the
payment of principal or interest or any other amount payable under this
Agreement.
(d) Bank may assign, from time to time, all or any
portion of the Committed Loan Amount to an Affiliate of Bank or to The Federal
Reserve Bank or, subject to the prior written approval of Borrower (which
approval will not be unreasonably withheld), to any other financial institution;
provided, that (i) the amount of the Committed Loan Amount being assigned
pursuant to each such assignment shall in no event be less than Five Hundred
Thousand Dollars ($500,000) and shall be an integral multiple of One Hundred
Thousand Dollars ($100,000) and (ii) the parties to each such assignment shall
execute and deliver to Borrower an assignment agreement in a form reasonably
acceptable to each. Upon such execution and delivery, from and after the
effective date specified in such assignment agreement (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such assignment
agreement, have the rights and obligations of a Bank hereunder and (y) Bank
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such assignment agreement, relinquish its rights and be released
from its obligations under this Agreement (other than pursuant to this Section
12.1(d)), and, in the case of an assignment agreement covering all or the
remaining portion of Bank's rights and obligations under this Agreement, Bank
shall cease to be a party hereto. In the event of an assignment hereunder, the
parties agree to amend this Agreement to the extent necessary to reflect the
mechanical changes which are necessary to document such assignment. Each party
shall bear its own expenses (including without limitation attorneys' fees and
costs) with respect to such an amendment.
12.2 Indemnification. Borrower shall defend, indemnify
and hold harmless Bank and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Agreement; and
(b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank
as a result of or in any way arising out of, following, or consequential to
transactions between Bank and Borrower whether under this Agreement, or
otherwise (including without limitation reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 Time of Essence. Time is of the essence for the
performance of all obligations set forth in this Agreement.
12.4 Severability of Provisions. Each provision of this
Agreement shall be severable from every other provision of this Agreement for
the purpose of determining the legal enforceability of any specific provision.
12.5 Amendments in Writing, Integration. This Agreement
cannot be amended or terminated orally. All prior agreements, understandings,
representations, warranties, and negotiations between the parties hereto with
respect to the subject matter of this Agreement, if any, are merged into this
Agreement and the Loan Documents.
12.6 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which, when executed and delivered, shall be deemed to be an original, and
all of which, when taken together, shall constitute but one and the same
Agreement.
12.7 Survival. All covenants, representations and
warranties made in this Agreement shall continue in full force and effect so
long as any Obligations (excluding Obligations under
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Section 2.6 and 12.2 to the extent they remain inchoate at the time the
outstanding payment Obligations are paid in full) remain outstanding. The
obligations of Borrower to indemnify Bank with respect to the expenses, damages,
losses, costs and liabilities described in Section 12.2 shall survive until all
applicable statute of limitations periods with respect to actions that may be
brought against Bank have run.
12.8 Confidentiality. In handling any confidential
information Bank shall exercise the same degree of care that it exercises with
respect to its own proprietary information of the same types to maintain the
confidentiality of any non-public information thereby received or received
pursuant to this Agreement except that disclosure of such information may be
made (i) to the subsidiaries or affiliates of Bank in connection with their
present or prospective business relations with Borrower, (ii) to prospective
transferees or purchasers of any interest in the Loans, provided that they have
entered into a comparable confidentiality agreement in favor of Borrower and
have delivered a copy to Borrower, (iii) as required by law, regulations, rule
or order, subpoena, judicial order or similar order, (iv) as may be required in
connection with the examination, audit or similar investigation of Bank and (v)
as Bank may determine in connection with the enforcement of any remedies
hereunder. Confidential information hereunder shall not include information that
either: (a) is in the public domain or in the knowledge or possession of Bank
when disclosed to Bank, or becomes part of the public domain after disclosure to
Bank through no fault of Bank; or (b) is disclosed to Bank by a third party,
provided Bank does not have actual knowledge that such third party is prohibited
from disclosing such information.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
INFOSEEK CORPORATION
By: /S/ Len LeBlanc
-----------------------------
Title: Chief Financial Officer
--------------------------
SILICON VALLEY BANK
By: /S/ Jeff Huhn
---------------------------
Title: Vice President
------------------------
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EXHIBIT A
The Collateral shall consist of all right, title and interest of
Borrower in and to the following:
(a) All goods and equipment now owned or hereafter acquired,
including, without limitation, all machinery, fixtures, vehicles (including
motor vehicles and trailers), and any interest in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, wherever located;
(b) All inventory, now owned or hereafter acquired, including,
without limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Borrower's Books relating to any of the foregoing;
(c) All contract rights and general intangibles now owned or
hereafter acquired, including, without limitation, goodwill, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, claims, literature, reports, catalogs, income tax
refunds, payments of insurance and rights to payment of any kind;
(d) All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower and Borrower's Books
relating to any of the foregoing;
(e) All documents, cash, deposit accounts, securities, letters of
credit, certificates of deposit, instruments and chattel paper now owned or
hereafter acquired and Borrower's Books relating to the foregoing; and
(f) Any and all claims, rights and interests in any of the above and
all substitutions for, additions and accessions to and proceeds thereof.
Notwithstanding the foregoing, the Collateral shall not be deemed to
include any copyright rights, copyright applications, copyright registrations
and like protections in each work of authorship and derivative work thereof,
whether published or unpublished, now owned or hereafter acquired; any patents,
trademarks, servicemarks and applications therefor; any trade secret rights,
including any rights to unpatented inventions, know-how, operating manuals,
license rights and agreements and confidential information, now owned or
hereafter acquired; or any claims for damages by way of any past, present and
future infringement of any of the foregoing.
25
<PAGE> 30
AGREEMENT TO PROVIDE INSURANCE
GRANTOR: Infoseek Corporation BANK: Silicon Valley Bank
- --------------------------------------------------------------------------------
INSURANCE REQUIREMENTS. Infoseek Corporation ("Grantor") understands
that insurance coverage is required in connection with the extending of a loan
or the providing of other financial accommodations to Grantor by Bank. These
requirements are set forth in the Loan Documents. The following minimum
insurance coverages must be provided on the following described collateral (the
"Collateral"):
Collateral: All Inventory, Equipment and Fixtures.
Type: All risks, including fire, theft and liability.
Amount: Full insurable value.
Basis: Replacement value.
Endorsements: Loss payable clause to Bank with
stipulation that coverage will not be
canceled or diminished without a
minimum of twenty (20) days' prior
written notice to Bank.
INSURANCE COMPANY. Grantor may obtain insurance from any insurance
company Grantor may choose that is reasonably acceptable to Bank. Grantor
understands that credit may not be denied solely because insurance was not
purchased through Bank.
FAILURE TO PROVIDE INSURANCE. Grantor agrees to deliver to Bank, on
or before closing, evidence of the required insurance as provided above, with an
effective date of March 31, 1997, or earlier. Grantor acknowledges and agrees
that if Grantor fails to provide any required insurance or fails to continue
such insurance in force, Bank may do so at Grantor's expense as provided in the
Loan and Security Agreement. The cost of such insurance, at the option of Bank,
shall be payable on demand or shall be added to the indebtedness as provided in
the security document. GRANTOR ACKNOWLEDGES THAT IF BANK SO PURCHASES ANY SUCH
INSURANCE, THE INSURANCE WILL PROVIDE LIMITED PROTECTION AGAINST PHYSICAL DAMAGE
TO THE COLLATERAL, UP TO THE BALANCE OF THE LOAN; HOWEVER, GRANTOR'S EQUITY IN
THE COLLATERAL MAY NOT BE INSURED. IN ADDITION, THE INSURANCE MAY NOT PROVIDE
ANY PUBLIC LIABILITY OR PROPERTY DAMAGE INDEMNIFICATION AND MAY NOT MEET THE
REQUIREMENTS OF ANY FINANCIAL RESPONSIBILITY LAWS.
AUTHORIZATION. For purposes of insurance coverage on the Collateral,
Grantor authorizes Bank to provide to any person (including any insurance agent
or company) all information Bank deems appropriate, whether regarding the
Collateral, the loan or other financial accommodations, or both.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS AGREEMENT
TO PROVIDE INSURANCE AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED MARCH 31,
1997.
GRANTOR: INFOSEEK CORPORATION
x /S/ Len LeBlanc, CFO
- ----------------------------------------
Authorized Officer
- --------------------------------------------------------------------------------
FOR BANK USE ONLY
INSURANCE VERIFICATION
DATE:______________________________________ PHONE: ________________________
AGENT'S NAME:__________________________________________________________________
INSURANCE COMPANY:_____________________________________________________________
POLICY NUMBER:_________________________________________________________________
EFFECTIVE DATE:________________________________________________________________
COMMENTS:______________________________________________________________________
- --------------------------------------------------------------------------------
<PAGE> 31
CORPORATE RESOLUTIONS TO BORROW
- --------------------------------------------------------------------------------
BORROWER: INFOSEEK CORPORATION
- --------------------------------------------------------------------------------
I, the undersigned Secretary or Assistant Secretary of Infoseek
Corporation (the "Corporation"), HEREBY CERTIFY that the Corporation is
organized and existing under and by virtue of the laws of the State of
California.
I FURTHER CERTIFY that attached hereto as Attachments 1 and 2 are
true and complete copies of the Articles of Incorporation and Bylaws of the
Corporation, each of which is in full force and effect on the date hereof.
I FURTHER CERTIFY that at a meeting of the Directors of the
Corporation, duly called and held, at which a quorum was present and voting (or
by other duly authorized corporate action in lieu of a meeting), the following
resolutions were adopted.
BE IT RESOLVED, that ANY ONE (1) of the following named officers,
employees, or agents of this Corporation, whose actual signatures are shown
below:
NAMES POSITIONS ACTUAL SIGNATURES
- --------------------------------------------------------------------------------
Len LeBlanc Chief Financial Officer /S/ Len LeBlanc
- --------------------------- ------------------------ --------------------
- --------------------------- ------------------------ --------------------
- --------------------------- ------------------------ --------------------
- --------------------------- ------------------------ --------------------
- --------------------------- ------------------------ --------------------
acting for an on behalf of this Corporation and as its act and deed be, and they
hereby are, authorized and empowered:
BORROW MONEY. To borrow from time to time from Silicon Valley Bank
("Bank"), on such terms as may be agreed upon between the officers, employees,
or agents and Bank, such sum or sums of money as in their judgment should be
borrowed, without limitation, including such sums as are specified in that
certain Loan and Security Agreement dated as of March 31, 1997 (the "Loan
Agreement").
EXECUTE NOTES. To execute and deliver to Bank the promissory note or
notes of the Corporation, on Bank's forms, at such rates of interest and on such
terms as may be agreed upon, evidencing the sums of money so borrowed or any
indebtedness of the Corporation to Bank, and also to execute and deliver to Bank
one or more renewals, extensions, modifications, refinancings, consolidations,
or substitutions for one or more of the notes, or any portion of the notes.
GRANT SECURITY. To grant a security interest to Bank in the
Collateral described in the Loan Agreement, which security interest shall secure
all of the Corporation's Obligations, as described in the Loan Agreement.
NEGOTIATE ITEMS. To draw, endorse, and discount with Bank all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness payable
to or belonging to the Corporation or in which the Corporation may have an
interest, and either to receive cash for the same or to cause such proceeds to
be credited to the account of the Corporation with Bank, or to cause such other
disposition of the proceeds derived therefrom as they may deem advisable.
1
<PAGE> 32
FURTHER ACTS. In the case of lines of credit, to designate additional
or alternate individuals as being authorized to request advances thereunder, and
in all cases, to do and perform such other acts and things, to pay any and all
fees and costs, and to execute and deliver such other documents and agreements
as they may in their discretion deem reasonably necessary or proper in order to
carry into effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to
these resolutions and performed prior to the passage of these resolutions are
hereby ratified and approved, that these Resolutions shall remain in full force
and effect and Bank may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Bank. Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
I FURTHER CERTIFY that the officers, employees, and agents named
above are duly elected, appointed, or employed by or for the Corporation, as the
case may be, and occupy the positions set forth opposite their respective names;
that the foregoing Resolutions now stand of record on the books of the
Corporation; and that the Resolutions are in full force and effect and have not
been modified or revoked in any manner whatsoever.
IN WITNESS WHEREOF, I have hereunto set my hand on March 31, 1997 and
attest that the signatures set opposite the names listed above are their genuine
signatures.
CERTIFIED TO AND ATTESTED BY:
X/S/ Andrew Newton
-------------------------------------
- --------------------------------------------------------------------------------
Attachment 1 - Articles of Incorporation
Attachment 2 - Bylaws
2
<PAGE> 1
Exhibit 11.1
INFOSEEK CORPORATION
STATEMENT OF COMPUTATION OF NET LOSS PER SHARE
(UNAUDITED)
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
1997 1996
-------- --------
<S> <C> <C>
Net Loss $ (4,106) $ (3,568)
Weighted average common shares
outstanding during the period 26,127 3,731
Shares related to SAB No. 55, 64
and 83 --- 12,483
Conversion of preferred stock not
included in shares related to SAB
No. 55, 64, and 83 --- 9,700
-------- --------
Total shares used in net loss per share 26,127 25,914
Net loss per share (Pro forma in 1996) $ (0.16) $ (0.14)
======== ========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 4,267
<SECURITIES> 38,267
<RECEIVABLES> 3,256
<ALLOWANCES> (425)
<INVENTORY> 0
<CURRENT-ASSETS> 45,838
<PP&E> 11,369
<DEPRECIATION> (3,730)
<TOTAL-ASSETS> 56,396
<CURRENT-LIABILITIES> 7,195
<BONDS> 0
0
0
<COMMON> 74,038
<OTHER-SE> (28,599)
<TOTAL-LIABILITY-AND-EQUITY> 56,396
<SALES> 6,151
<TOTAL-REVENUES> 6,151
<CGS> 1,284
<TOTAL-COSTS> 1,284
<OTHER-EXPENSES> 9,378
<LOSS-PROVISION> 425
<INTEREST-EXPENSE> 112
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,106)
<EPS-PRIMARY> (0.16)
<EPS-DILUTED> (0.16)
</TABLE>
