AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 3, 1997
REGISTRATION STATEMENT NO. 333-25259
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
SPORTSLINE USA, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7375 65-0470894
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
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6340 N.W. 5TH WAY
FORT LAUDERDALE, FLORIDA 33309
(954) 351-2120
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
---------------
MICHAEL LEVY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SPORTSLINE USA, INC.
6340 N.W. 5TH WAY
FORT LAUDERDALE, FLORIDA 33309
(954) 351-2120
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
---------------
COPIES OF COMMUNICATIONS TO:
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<S> <C>
KENNETH C. HOFFMAN, ESQ. ELLEN B. CORENSWET, ESQ.
GREENBERG, TRAURIG, HOFFMAN, BRIAN B. MARGOLIS, ESQ.
LIPOFF, ROSEN & QUENTEL, P.A. BROBECK, PHLEGER & HARRISON LLP
1221 BRICKELL AVENUE 1633 BROADWAY
MIAMI, FLORIDA 33131 NEW YORK, NEW YORK 10019
PHONE: (305) 579-0500 PHONE: (212) 581-1600
FAX: (305) 579-0717 FAX: (212) 586-7878
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
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<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------
<S> <C>
1.1 Proposed form of Underwriting Agreement*
3.1 Form of Amended and Restated Certificate of Incorporation*
3.2 Form of Amended and Restated Bylaws*
5.1 Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. as to the validity of
the Common Stock being registered*
10.1 Registrant's 1995 Stock Option Plan*
10.2 Form of Indemnification Agreement between the Registrant and each of its directors and
executive officers*
10.3 Registrant's 1997 Incentive Compensation Plan*
10.4 Registrant's Employee Stock Purchase Plan*
10.5 Amended and Restated Investors' Rights Agreement dated as of September 25, 1996, among
the Registrant, the holders of the Registrant's Series A, Series B and Series C Preferred Stock,
The Estate of Burk Zanft and Michael Levy*
10.6 Agreement dated March 5, 1997 between the Registrant and CBS Inc.*
10.7 Licensing Agreement dated September 27, 1996 between the Registrant and US WEST
Interactive Services, Inc.*
10.8 Marketing Agreement dated March 12, 1996 between the Company and Reuters NewMedia,
Inc.*
10.9 Guaranty dated December 1995 executed by Kleiner Perkins Caufield & Byers*
10.10 Consulting Agreement dated September 1, 1994, between the Registrant and Horrow Sports
Ventures*
10.11 Agreement dated June 1996 between the Registrant and Michael P. Schulhof*
10.12 Agreement dated August 1994 between the Registrant and Planned Licensing, Inc.*
10.13 Employment Agreement dated as of September 1, 1997, between the Registrant and
Kenneth W. Sanders*
10.14+ Advisory Agreement dated June 20, 1997 among the Registrant, Michael Jordan and Falk Associates**
10.15+ Advisory Agreement dated July 1, 1997 between the Registrant and ETW Corp.**
10.16+ Interactive Services Agreement dated July 1, 1997 between the Registrant and America Online, Inc.**
23.1 Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. (to be included in its
opinion to be filed as Exhibit 5.1)*
23.2 Consent of Arthur Andersen LLP*
24.1 Reference is made to the Signatures section of this Registration Statement for the Power of
Attorney contained therein*
27.1 Financial Data Schedule*
28.1 Consent of Director Nominee*
</TABLE>
- ----------------
* Previously filed.
** Filed herewith.
+ Certain provisions of this exhibit are subject to a request for confidential
treatment filed with the Securities and Exchange Commission.
(b) Financial Statement Schedules:
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission (the "Commission") are
not required under the related instructions, the required information is
contained in the financial statements and notes thereto or are not applicable,
and therefore have been omitted.
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act of 1933") the registrant has duly caused this Amendment to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Fort Lauderdale, State of Florida, on
November 3, 1997.
SPORTSLINE USA, INC.
By: /s/ MICHAEL LEVY
----------------------------
Michael Levy, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Michael Levy and Kenneth W. Sanders his
true and lawful attorneys-in-fact, each acting alone, with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this registration statement, or any registration
statement relating to this offering to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, and to file the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or their substitutes, each acting alone, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ MICHAEL LEVY President, Chief Executive Officer November 3, 1997
- -------------------------- and Director
Michael Levy (principal executive officer)
/s/ KENNETH W. SANDERS Chief Financial Officer November 3, 1997
- -------------------------- (principal financial and
Kenneth W. Sanders accounting officer
/s/ * Director November 3, 1997
- --------------------------
Thomas Cullen
/s/ * Director November 3, 1997
- --------------------------
Stephen Fleming
/s/ * Director November 3, 1997
- --------------------------
Gerry Hogan
/s/ * Director November 3, 1997
- --------------------------
Richard B. Horrow
Director November 3, 1997
- --------------------------
Joseph Lacob
- -------------------------- Director November 3, 1997
Sean McManus
</TABLE>
II-2
<PAGE>
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<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ * Director November 3, 1997
- --------------------------
Andrew Nibley
/s/ * Director November 3, 1997
- --------------------------
Liesl Pike
Director November 3, 1997
- --------------------------
Derek Reisfield
/s/ * Director November 3, 1997
- --------------------------
James C. Walsh
</TABLE>
- ----------------
<TABLE>
<S> <C>
*By: /s/ MICHAEL LEVY
- --------------------------
Michael Levy
Attorney-in-fact
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- --------- ----------- -------------
<S> <C> <C>
10.14+ Advisory Agreement dated June 20, 1997 among the Registrant,
Michael Jordan and Falk Associates
10.15+ Advisory Agreement dated July 1, 1997 between the Registrant and ETW Corp.
10.16+ Interactive Services Agreement dated July 1, 1997 between the
Registrant and America Online, Inc.
</TABLE>
- ----------------
+ Certain provisions of this exhibit are subject to a request for confidential
treatment filed with the Securities and Exchange Commission.
EXHIBIT 10.14
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
ADVISORY AGREEMENT
This Agreement is entered into as of June 20, 1997 (the "EFFECTIVE DATE") by and
among MICHAEL JORDAN ("JORDAN"), FALK ASSOCIATES MANAGEMENT ENTERPRISES ("FAME")
and SPORTSLINE USA, INC., A DELAWARE CORPORATION ("SPORTSLINE") and provides as
follows:
SportsLine desires to contract with Jordan for certain services and to obtain
from Jordan certain content for distribution through its sports-oriented online
service currently located at universal resource locator
"http://cbs.sportsline.com" (the "SPORTSLINE SERVICE"), and Jordan is willing to
render such services, on the terms and conditions set forth herein. For and in
consideration of the mutual terms and conditions set forth in this Agreement,
the receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
1. TERM. The term of this Agreement shall be as set forth in EXHIBIT "A" (the
"TERM").
2. SERVICES, RIGHTS & CONTENT. SportsLine end Jordan agreeto create a
designated area of the SportsLine Service as the exclusive Jordan-authorized
web site that features content to be provided by or on behalf of Jordan
(hereinafter, the "JORDAN WEB SITE"). The Jordan Web Site will be hosted and
operated by SportsLine on SportsLine's servers at a World Wide Web address
(the "JORDAN URL") mutually agreed upon by the parties as may be adopted
from time to time (tentatively, "michaeljordan.com"), and shall contain
prominent links to the SportsLine Service. As more fully set forth herein,
Jordan agrees to fully provide the content and perform the services outlined
herein including but not limited to the services and content set forth on
EXHIBIT "B."
3. EXCLUSIVITY. During the Term, and subject to any rights granted to the NBA
pursuant to the NBA's Group Licensing Agreement (Jordan and FAME hereby
acknowledge that, as of the Effective Date, Jordan has opted out of and is
not currently subject to the NBA Group Licensing Agreement) or any other
rights granted to the NBA pursuant to Jordan's contract with the Chicago
Bulls, Jordan shall not be employed by, act as a consultant to, provide any
content, chat sessions, information, products (including but not limited to
merchandise and memorabilia) or services to, or otherwise render services of
any nature for or on behalf of, any internet or World Wide Web (including
but not limited to ESPN SportsZone, CNN/Si, Sporting News, NBC Sports,
FoxSports, etc.), commercial online (including but not limited to Microsoft
Network, America Online, CompuServe, etc.), electronic or similar service
(regardless of whether such service is accessible through the Internet or
CONFIDENTIAL AND PROPRIETARY
Page -1 -
<PAGE>
otherwise). In addition, as more fully set forth herein, Jordan hereby
grants SportsLine an exclusive, world-wide license both online and off-
line, to create the official Jordan Fan Clubs (as defined herein); however,
that the foregoing shall not prohibit any of the sponsors listed on EXHIBIT
"D" attached hereto (each, a "JORDAN ENDORSEMENT COMPANY") from distributing
information, advertising, or product samples to Jordan fans so long as such
activities are not reasonably construed to be in the nature of Fan Club
activities in order to avoid confusion in the marketplace and to avoid
adversely affecting the effectiveness of the Jordan Fan Clubs. Jordan
understands and agrees that SportsLine shall not be prevented nor barred
from retaining other persons or entities to provide services of the same
nature or similar nature as those described herein or of any nature
whatsoever. SportsLine acknowledges that the Jordan Endorsement Companies,
WorldCom (in particular, with respect to Internet access services) and the
NBA may have certain marketing rights that may extend to the Internet and
which rights shall not be considered a breach of this Agreement; provided,
however, under no circumstances may those rights include the creation of a
Web site containing and content similar to the Jordan Information or have
the same look and feel of the Jordan Web Site nor any interviews, chat
sessions, or other services as provided herein.
4. PROMOTION. Jordan shall use his best efforts to (i) secure from his
corporate sponsors and endorsers promotion of the Jordan Web Site in all
print, direct mail, radio and television advertisements, infomercials, and
other traditional, electronic and online marketing and promotional vehicles
used by such sponsors and endorsers to promote Jordan, including arranging
to have the Jordan URL displayed on hanging tags on Jordan's endorsers' or
licensees' signature line of apparel and/or equipment, and any books and
documentaries; and (ii) mention the Jordan Web Site and Jordan URL in all
appropriate interviews and appearances of Jordan (the "PROMOTIONAL
EFFORTS"). The Promotional Efforts shall prominently feature the lordan URL
followed by the promotional statement "a SportsLine USA Powered Web Site" or
other similar language designated by SportsLine, and display the Jordan URL,
as may be adopted from time to time. SportsLine will actively promote the
Jordan Web Site both within the SportsLine service and on other Web sites
consistent with SportsLine's promotion of its other superstar Web Sites.
5. SPONSORSHIP/ENDORSEMENT CONFLICTS.
(a) SportsLine agrees and acknowledges that FAME and Jordan shall have the
right to approve, in their absolute discretion, any third-
CONFIDENTIAL AND PROPRIETARY
Page -2-
<PAGE>
party corporate sponsorships for the Jordan Web Site, and that any use
of Jordan's name and likeness in connection with any third-party
corporation or sponsor is subject to prior written approval by Jordan
and FAME, based upon Jordan's pre-existing Agreements with Jordan
Endorsement Companies. In the event FAME or Jordan disapproves any
third-party corporate sponsorship, FAME or Jordan, as applicable, shall
provide SportsLine with FAME's and/or Jordan's reasons in writing.
However, SportsLine acknowledges that there will be certain situations
where, due to pre-existing third party agreements or in Jordan's sole
discretion, Jordan cannot or will not grant approval to certain
products, sponsorships and/or advertising in connection with the Jordan
Web Site. Further, SportsLine agrees that it will not under any
circumstances negotiate with, enter into any Agreement with or otherwise
consult with any of the Jordan Endorsement Company Major Direct
Competitors listed on Exhibit "E" attached hereto to advertise, promote
or market the Jordan Web Site. SportsLine agrees to work with Jordan and
FAME to ensure that there shall be no ambush marketing by other than
Jordan Endorsement Company third-party corporate partners in connection
with the Jordan Web Site;
(b) SportsLine acknowledges that Jordan has entered into and will enter into
certain third party agreements with Jordan Endorsement Companies
relating to the food and beverage, sporting goods, telecommunications
and apparel industries (collectively the "JORDAN THIRD PARTY
AGREEMENTS"). Notwithstanding any provision contained in this Agreement
to the contrary, SportsLine agrees that it will not take any action nor
fail to take any action, as applicable under the circumstances, in
connection with marketing, promoting, advertising and operating the
Jordan Web Site and marketing, promoting, advertising and selling Jordan
Merchandise which would violate or otherwise interfere with the terms
and conditions of any existing or any future Jordan Third Party
Agreement (a "MARKETING CONFLICT"), but only to the extent that
SportsLine has been given prior written full disclosure of the material
terms and conditions that create any such Marketing Conflict. Jordan and
SportsLine will mutually agree upon procedures for the disclosure by
Jordan to SportsLine of such information as is necessary, for SportsLine
to comply with the foregoing. SportsLine will, as soon as
technologically and commercially feasible following SportsLine's receipt
of notice of a Marketing Conflict, take or refrain from taking such
action, as applicable under the circumstances, so as to otherwise comply
CONFIDENTlAL AND PROPRIETARY
Page -3-
<PAGE>
with the terms and conditions of the Jordan Third Party Agreements;
provided, however, that SportsLine shall have a reasonable period of
time within which to deplete any existing inventory or inventory to
which SportsLine is contractually obligated as of the date of receipt of
notice of any Marketing Conflict. To the extent that SportsLine violates
a restriction in a Jordan Third Party Agreement because SportsLine did
not have written notice of such restriction, SportsLine shall not be
deemed in breach of this Agreement to the extent that it promptly comes
into compliance with such restriction, subject to SportsLine's right to
deplete inventory as describe above, following written notice of such
violation and such other disclosures as required by this section.
SportsLine shall be solely responsible for contracting with the
appropriate parties having rights under any Jordan Third Party Agreement
in the event that SportsLine desires to purchase Jordan Merchandise from
such third party, and Jordan shall have no obligations in connection
therewith except as otherwise expressly provided herein.
6. CONSIDERATION. In full consideration for Jordan's services under this
Agreement, SportsLine will pay Jordan pursuant to the terms outlined in
EXHIBIT "C."
7. GRANT OF LICENSE. Jordan hereby grants to SportsLine the following
licenses:
a) CONTENT. Subject to any rights granted to the NBA pursuant to the Group
Licensing Agreement and any rights granted by Jordan to Jordan
Endorsement Companies Jordan grants to SportsLine an exclusive worldwide
license:
i) To the Jordan URL;
ii) To use, copy, display (publicly or privately), perform (publicly
or privately), distribute or otherwise make available through the
Jordan Web Site and the SportsLine Service the name, initials,
likeness, logos, approved photographs, statements of approval,
preference and endorsement, biographical information of Jordan
(the "JORDAN ENDORSEMENT") and the Jordan Information (as defined
herein):
A) In connection with the development, advertisement, promotion
and distribution of the SportsLine Service
CONFIDENTIAL AND PROPRIETARY
Page -4-
<PAGE>
and the Jordan Web Site (including, without limitation,
information and text-oriented services, chatrooms, interviews,
contests, interactive games on the Internet only, statistics,
and sports feature texts).
B) In SportsLine's letterhead.
C) In connection with any demonstration, promotion, or
advertisement of or as otherwise reasonably necessary to
promote the SportsLine Service or the Jordan Web Site in any
medium.
iii) To enter Jordan Information into SportsLine's computer database.
iv) To store, process, retrieve and transmit the same on the
SportsLine Service and the Jordan Web Site.
v) To reproduce any Jordan Endorsement or Jordan Information or any
part of it for advertising, promotion and publicity of SportsLine.
SportsLine's rights hereunder shall include, but not be limited to,
SportsLine's right, in its sole discretion, to offer subscribers the option
of printing and downloading Jordan Information or any portion thereof as a
function of the SportsLine Service generally.
b) MERCHANDISE. In addition, subject to any rights granted to any third
parties by Jordan, Jordan grants to SportsLine the world- wide license
to sell Jordan memorabilia such as autographed uniforms, basketballs,
apparel, equipment, posters and any other sports memorabilia online
("JORDAN MERCHANDISE") through the Jordan Web Site; provided that, to
the extent that Jordan has a pre-existing contractual obligation with
The Upper Deck Company which conflicts with the rights and license
granted pursuant to the foregoing provision, Jordan agrees to use his
best efforts to facilitate a relationship between SportsLine and The
Upper Deck Company. SportsLine agrees that any Jordan-autographed
sports apparel, shoes, or sports equipment that SportsLine desires to
sell in connection with The Upper Deck Company must be manufactured by
Nike, Inc., and Wilson Sporting Goods, Inc., respectively, or any other
third party with which Jordan has a contract.
CONFIDENTIAL AND PROPRIETARY
Page -5-
<PAGE>
c) RESERVATION OF RIGHTS. All right, title and interest in all Jordan
Information are and shall remain Jordan's, subject to the rights and
licenses granted to SportsLine herein.
d) ADDITIONAL RESTRICTIONS. SportsLine shall not use the Jordan Endorsement
in a manner which implies an endorsement of any Web site and/or
SportsLine sponsor or any other non-Jordan Corporate Partner, or an
endorsement of any computer hardware and software, video games, cellular
phones and accessories, telephone debit and travel cards, or any
telephone and telecommunications services without Jordan's prior written
approval.
8. APPROVALS.
a) SportsLine agrees to submit to Jordan and FAME for their approval, a
copy of ail advertising and/or promotional materials utilizing Jordan's
likeness at least fourteen (14) calendar days prior to their release to
the general public. SportsLine further agrees that such advertising and
promotional materials shall not be released without prior written
approval of Jordan and FAME. Jordan and FAME agree, however, that they
shall not unreasonably withhold or delay their approval of such
materials and that in absence of disapproval, within ten (10) calendar
days of receipt thereof, such advertising and promotional materials
shall be deemed approved. Notwithstanding the foregoing, SportsLine
shall have the right to use screen shots and captions from the Jordan
Web Site and any previously approved content from the Jordan Web Site
for any uses otherwise permitted hereunder; provided that there are no
material changes to such screen shots, captions and content as approved.
(b) From time to time during the term of this Agreement, SportsLine will
submit merchandise to Jordan and FAME, for their approval, which
SportsLine proposes to market, promote, advertise and sell through the
Jordan Web Site. Jordan and FAME may, in their sole discretion, approve
or disapprove any or all such submitted merchandise to be sold by
SportsLine on the Jordan Web Site.
(c) To the extent known by Jordan and FAME, Jordan and FAME shall disclose
to SportsLine appropriate contacts with third party sources of Jordan
Merchandise for purchase by or sourcing to or on behalf of SportsLine
for SportsLine's use of the Jordan Endorsement as permitted under this
Agreement; provided,
CONFIDENTIAL ANO PROPRIETARY
Page -6-
<PAGE>
however, that Jordan and FAME shall have no obligation to coordinate or
facilitate the sale of any such approved merchandise from a third party
vendor to SportsLine as it shall be SportsLine's sole responsibility to
obtain such approved Jordan Merchandise from a third party vendor.
Jordan and FAME shall assist SportsLine in good faith in obtaining
favorable terms with respect to the sale of such Jordan Merchandise.
(d) To the extent SportsLine creates unique Jordan Merchandise, SportsLine
agrees to provide to Jordan and FAME a combined total of two (2)
representative copies or samples (i.e., one each to Jordan and FAME) of
all such proposed Jordan Merchandise together with a description of the
intended use of the merchandise to Jordan and FAME without cost to
Jordan and FAME for written approval prior to SportsLine using the same.
Jordan and FAME shall approve or disapprove any merchandise submitted by
SportsLine for approval within ten (10) business days of their receipt
by Jordan and FAME. If Jordan or FAME do not approve or disapprove
SportsLine's submission within such ten (10) day period, SportsLine will
provide written notice to Jordan and FAME of such delay and Jordan and
FAME agrees that any such proposed merchandise will be deemed approved
if SportsLine's submission is not responded to within five (5) business
days following receipt of such written notice. The copies and samples
submitted by SportsLine to Jordan and FAME under this Section 8(d) may
be retained by Jordan and FAME at their option. SportsLine will
thereafter submit to Jordan-and FAME, without cost to Jordan or FAME,
one (1) unit of such finished Jordan Merchandise, as approved, upon
commencement of production of such Jordan Merchandise.
CONFIDENTIAL AND PROPRIETARY
Page -7-
<PAGE>
9. RESPONSIBILITIES OF JORDAN AS TO CONTENT.
a) JORDAN INFORMATION. For purposes of this Agreement, the term "JORDAN
INFORMATION" means all information created and/or delivered by Jordan to
SportsLine for inclusion in the SportsLine Service or the Jordan Web
Site including but not limited to (i) any trademark, service mark, trade
name or logo, whether or not registered, included in such information,
provided that any such trademark, service mark, trade name or logo must
be approved in advance by Jordan and FAME (ii) the content to be
provided as set forth on EXHIBIT "B," and (iii) any statement made by
any member of Jordan's organization during any interview or chat session
broadcast or distributed over the SportsLine Service or the Jordan Web
Site.
b) REPRESENTATIONS AND WARRANTIES. Jordan shall be solely responsible for
the content of all Jordan Information, and represents and warrants to
SportsLine that:
i) All Jordan Information (A) shall be accurate and Jordan's own and
original creation, except for information validly Iicensed for use
by Jordan or in the public domain; (B) will consist only of
information that Jordan is authorized to use and to authorize
SportsLine to use as contemplated in this Agreement; (C) will not
constitute a libel or defamation or conflict with any copyright,
right of privacy or other rights of, and will not cause injury to,
any third party; and (D) will conform to all applicable federal,
state and local laws and regulations and any other governmental or
quasi- governmental laws or regulations of the United States or
any other country.
ii) Jordan has the full right and authority to grant the rights and
consents set forth herein.
iii) SportsLine shall be entitled at any time to bring any concerns it
has regarding the Jordan Information to the attention of Jordan,
whereupon the parties will cooperate in good faith to address
SportsLine's concerns. If SportsLine, in its reasonable judgment,
believes that immediate action is required with regard to any of
the Jordan Information, SportsLine may delete, modify or revise
such information, provided that SportsLine shall notify Jordan of
such action
CONFIDENTIAL AND PROPRIETARY
Page -8-
<PAGE>
prior thereto, if reasonably possible (or, if not, as soon
thereafter as commercially practicable). In the event Jordan
ceases to maintain his high-profile as a pre-eminent spokesperson
and/or entertainer, and becomes completely inactive as an
endorser, Jordan agrees to discuss in good faith with SportsLine
some protection to the rights and obligations hereunder.
c) DELIVERY; EDITORIAL STANDARDS. All Jordan Information and updates shall
be transmitted by land-line telephone or electronically in the format
specified by SportsLine. All content supplied by Jordan shall be
consistent with the editorial standards used by SportsLine for content
displayed on the SportsLine Service (which standards SportsLine reserves
the right to amend from time to time).
10. NBA/BULLS TRADEMARKS. SportsLine acknowledges that Jordan has no right to
grant, nor does he purport to grant, the use of the Chicago Bulls' name,
uniform and/or insignias or any other trademarks associated with the
National Basketball Association. However, Jordan shall instruct his
agent(s), attorney(s) and/or business manager(s) to use their best efforts
to assist SportsLina to obtain clearances for such uses.
11. SPORTSLINE SERVICE. SportsLine shall have sole discretion to determine all
aspects of the operation of the SportsLine Service and all matters relating
to the content, structure and sequence of material appearing on the
SportsLine Service. Without limiting the generality of the foregoing,
SportsLine shall have sole discretion to determine the amount and basis of
any fee charged to subscribers for use of the SportsLine Service, and
SportsLine exclusively will bill for and collect all fees charged to
subscribers to use the SportsLine Service. Nothing in this Agreement shall
limit SportsLine's rights regarding charges for any aspect of the SportsLine
Service (including any product or service offered by SportsLine, whether
alone or in conjunction with others, through means of the SportsLine
Service). All right, title and interest in . SportsLine's name, trade
name(s), trademark(s) and service mark(s), copyrights, and all other
intellectual property (collectively, "SPORTSLINE'S INTELLECTUAL PROPERTY")
are and shall remain. SportsLine's. Nothing herein shall be deemed to grant
Jordan any proprietary rights to any of SportsLine's Intellectual Property.
12. PREMIUM FEATURES/FAN CLUBS. SportsLine shall ba responsible for the concept
design and creation of all Premium Features, including the official
exclusive online and off-line Jordan fan clubs (collectively, the
CONFIDENTIAL AND PROPRIETARY
Page -9-
<PAGE>
"FAN CLUBS") that allow Jordan to communicate with Jordan's fans through
regular e-mail messages, columns and newsletters, to record audio clips that
allow fans to listen to live and previously recorded interviews and
insights, and to play video clips and highlights from previously- recorded
interviews and games and events (collectively, "ELECTRONIC MEANS"). Jordan
will answer five (5) electronic mail questions per week received from
members of Jordan online Fan Club, if and to the extent such questions are
timely forwarded by SportsLine, given Jordan's schedule; and will use best
efforts to introduce SportsLine to Jordan's endorsers and licensees to
promote the Jordan Fan Clubs and to facilitate the acquisition of
merchandise and/or memorabilia for sale through and. In addition, SportsLine
will create, operate and maintain the exclusive official Jordan off-line Fan
Club that allows Jordan to communicate with his fans through means other
than Electronic Means.
a) With respect to both the official online and off-line Fan Club,
SportsLine shall be responsible for the following services (the "FAN
CLUB SERVICES"):
i) Creating and marketing a Fan Club membership package which shall
be subject to Jordan's and FAME's prior approval.
ii) Creating a mailing list consisting of Members (as defined below).
SportsLine agrees, at the request of Jordan given at any time or
times during the Term, to deliver to Jordan, at SportsLine's cost,
a copy of the then-current mailing list for the Fan Clubs.
SportsLine acknowledges and agrees that Jordan shall have the
right to make use of the Fan Clubs' membership list for any
purpose permitted by law which Jordan may designate (including,
without limitation, licensing or selling such !ist) without the
obligation to pay any fee or compensation to SportsLine.
iii) Soliciting individuals to become "Fan Club members" (the
"MEMBERS").
iv) If mutually agreed upon, writing and sending and/or distributing
to the Members periodic newsletters, press releases and touring
schedule updates, all of which shall be subject to Jordan's and
FAME's prior approval.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
v) Providing Members with an "official" membership card, information
packet and other promotional materials relating to the Fan Clubs,
all of which shall be subject to Jordan's and FAME's prior
approval.
vi) If mutually agreed upon, creating a merchandising presence within
the Jordan Web Site to provide Members with opportunities to
purchase officially-licensed Fan Club merchandise, all of which
shall be subject to further agreement between Jordan and
SportsLine.
vii) Collecting all income generated from the Fan Clubs' activities
accounting for and distributing the income as set forth herein.
viii) Such other services and activities as the parties may hereafter
agree.
If at any time during the Term, SportsLine or Jordan desires to add
additional Fan Club Services, then SportsLine may submit such request in
writing to Jordan, or Jordan may submit such request in writing to
SportsLine, and upon receipt thereof, the parties shall discuss in good
faith the possibility of adding such additional services.
b) SportsLine shall operate the Fan Clubs in accordance with the following
guidelines:
i) Fan club dues shall be established upon mutual agreement of the
parties.
ii) Jordan shall have final approval of all information, including
photographs, video clips, etc., to be sent, broadcast or made
accessible to Members and/or used in connection with the Fan
Clubs, and of the parameters or rules of any Fan Club conventions
and/or contests ("FAN CLUB ACTIVITIES"). SportsLine shall submit
each of these Fan Club Activities to Jordan in writing for
Jordan's and FAME's approval.
13. CONTESTS. Jordan and FAME agree and acknowledge that their respective
employees, consultants and/or advisors and members of their respective
immediate families (immediate family is defined as parent, sibling or any
person residing in the same household as employee or consultant) shall not
eligible to play SportsLine contests for prizes.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
14. PRESS RELEASES. It is the intent of the parties to issue a joint press
release announcing the formation of the relationship created hereby.
However, it is agreed that no party will issue any such press release
without the prior written consent of the other parties.
15. ENFORCEMENT ACTION. If either party obtains information that the rights
granted by Jordan to SportsLine have been breached by a third party, such
information shall be promptly transmitted to the other party. SportsLine
shall have the right, but not the obligation, to commence an action against
the breaching third party; provided, however, SportsLine agrees to commence
appropriate action if requested to do so by Jordan and/or FAME, but only to
the extent approved by SportsLine's outside counsel and further subject to
mutual agreement among SportsLine, FAME and Jordan regarding division of the
expense of retaining outside counsel. If requested by SportsLine, Jordan
shall enter such action against such third party as an additional party
plaintiff.
16. ARBITRATION. The parties are desirous of reducing the time and costs of
resolving disputes. Accordingly, any claim or controversy arising out of or
in connection with the construction or application of any term, provision or
condition of this Agreement and shall be settled by final and binding
arbitration in the State of Illinois under the Rules of the American
Arbitration Association;-provided, however, that any such matter submitted
to arbitration shall be presided over by a panel of at least three (3)
arbitrators who each shall have experience in the area of intellectual
property law. The decision of the arbitrators shall- be binding upon the
parties. The reasonable cost of arbitration shall be borne by the losing
party or in such proportion as the arbitrator shall decide. Judgment on the
award rendered by the arbitrator may be entered in any court in the world
having jurisdiction. The provisions of this paragraph shall survive any
expiration or earlier termination of this Agreement.
17. INDEMNIFICATION BY SPORTSLINE. SportsLine shall indemnify, defend and hold
Jordan harmless from and against all claims, costs, liabilities, judgments,
expenses or damages (including reasonable attorneys' fees and court costs)
arising from or related to any cause of action brought against Jordan by any
person or entity that is not a party to this Agreement arising from or
related to this Agreement. This paragraph shall survive any expiration or
earlier termination of this Agreement.
18. INDEMNIFICATION BY JORDAN. Jordan shall indemnify, defend and hold
SportsLine harmless from and against all claims, costs, liabilities,
judgments, expenses or damages (including reasonable attorneys' fees
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
and court costs) arising from or related to any cause of action brought
against SportsLine by any person or entity that is not a party to this
Agreement arising from or related to (i) any Jordan Information displayed
through the Jordan Web Site or the SportsLine Service, (ii) the content of
any Jordan Information, and (iii) any breach of this Agreement, provided
SportsLine promptly notifies Jordan of any such claim and provides Jordan
the opportunity to control the defense of the action and all negotiations
for settlement or compromise. This paragraph shall survive any expiration or
earlier termination of this Agreement
19. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING STATED OR IMPLIED TO THE
CONTRARY HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
IN ANY MANNER ARISING OUT OF THIS AGREEMENT OR THE BREACH OF ANY TERM,
COVENANT, REPRESENTATION, WARRANTY OR OBLIGATION CONTAINED HEREIN. THIS
PARAGRAPH SHALL SURVIVE ANY EXPIRATION OR EARLIER TERMINATION OF THIS
AGREEMENT
20. CONFIDENTIALITY. All information disclosed by either party to the other
party, including but not limited to the terms and conditions of this
Agreement or any other agreement between the parties, trade secrets of the
parties, any nonpublic information relating to a party's product plans,
designs, ideas, concepts, costs, prices, finances, marketing plans, business
opportunities, personnel, research, development or know-how and any other
nonpublic technical or business information of a party, that is marked
"CONFIDENTIAL" or identified by the disclosing party in writing as
confidential before or within thirty (30) calendar days after disclosure to
the receiving party, shall be treated as confidential by the receiving party
and not disclosed to any third party, including, but not limited to the NBA,
NBA Properties, the National Basketball Players Association and any other
entity of the NBA or the Chicago Bulls, without the disclosing party's
consent or unless required by law.
Confidential Information shall not include information that: (a) is now or
subsequently becomes generally available to the public through no fault or
breach on the part of the receiving party; (b) the receiving party can
demonstrate to have had lawfully in its possession without an obligation of
confidentiality prior to disclosure hereunder; (c) is independently
developed by the receiving party without the use of any Confidential
Information of the disclosing party as evidenced by written documentation;
or (d) the receiving party lawfully obtains from a third
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
party who has the right to transfer or disclose it and who provides it
without any obligation to maintain the confidentiality of such information.
This paragraph shall survive any expiration or earlier expiration of this
Agreement.
21. TERMINATION. In the event of a material breach of this Agreement by either
party, the other party may terminate this Agreement on thirty (30) calendar
days' written notice to the breaching party unless the breach is corrected
within the thirty (30) day period. Termination under this paragraph shall
not affect the right of the non-breaching party to recover damages from the
breaching party. No expiration or termination of this Agreement shall affect
or impair either party's rights or remedies under this Agreement that have
accrued or arisen as of or prior to such termination. Following the
effective date of termination, no further obligations of either party to the
other shall accrue under this Agreement, provided that termination shall not
relieve either party of any obligations arising prior to the effective date
of termination.
22. RELATIONSHIP OF THE PARTIES. The parties to this Agreement are independent
contractors, and this Agreement shall not be construed to create a
partnership, joint venture, employment or principal agent relationship
between the parties. Each party shall be solely responsible to compensate
any employees! agents or representatives employed or engaged by it to
perform duties under this Agreement and for all taxes, imposts, duties and
all charges of any governmental authority arising from its or his activities
under this Agreement. Neither SportsLine, FAME nor Jordan, nor any person or
entity employed by any of them, are authorized to make any representation or
warranty concerning the other parties or incur or assume any obligation or
liability for the other parties.
23. AMENDMENT: WAIVER. No amendment to this Agreement shall be valid unless such
amendment is in writing and is signed by the party against whom enforcement
is sought. Any of the terms and conditions of this Agreement may be waived
at any time in writing by the party entitled to the benefit thereof, but a
waiver in one instance shall not be deemed to constitute a waiver in any
other instance. A failure to enforce any provision of this Agreement shall
not operate as a waiver of the provision or of any other provision hereof.
24. SEVERABILITY. In the event that any provision of this Agreement shall be
held to be invalid, illegal or unenforceable in any circumstances, the
remaining provisions shall nevertheless remain in full force and effect
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
and shall be construed as if the unenforceable portion or portions were
deleted.
25. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Illinois without regard
to its conflict of law principles.
26. NOTICES. All notices or other communications hereunder shall be in writing
and shall be deemed to be given or made when delivered by overnight courier
or first-class, postage prepaid, registered or certified mail to the
following address or addresses or such other address or addresses as either
party may designate in writing to the other in accordance with this
paragraph:
If to SportsLine: SportsLine USA, Inc.
6340 NW 5th Way
Fort Lauderdale, Florida 33309
Attn: President
If to Jordan or FAME: Falk Associates Management
Enterprises
5335 Wisconsin Avenue, NW, Suite 850
Washington, DC 20015
Attention: David Falk
27. ASSIGNMENT.
Neither Jordan nor SportsLine shall have the right to grant sublicenses
hereunder or to otherwise assign, alienate, transfer, encumber, or
hypothecate (all of the foregoing hereinafter "transfer") any of their
rights or obligations hereunder without the prior written consent of the
other. SportsLine may, without the approval of Jordan or FAME, transfer its
rights and/or obligations hereunder in connection with a consolidation,
merger or sale of all or substantially all of SportsLine's assets with any
other entity. However, in the event:
(i) SportsLine proposes to effect a merger or consolidation with any entity
(a "MERGING ENTITY") *****, and
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
(ii) Jordan has advised SportsLine specifically and in writing, at least
thirty (30) days before Jordan receives such notice of such merger or
consolidation or such merger or consolidation is publicly announced,
that such Merging Entity is a ***** within the meaning of this
paragraph,
then Jordan shall have the right to terminate this Agreement by so notifying
SportsLine in writing on or before thirty (30) days after Jordan has
received notice of such proposed merger or consolidation (provided that such
termination shall not be effective if the merger or consolidation is not
consummated or if those elements of the Merging Entity which make it a *****
are "spun off" and not included in the resulting company of which
SportsLine is a part); provided, however, that, at SportsLine's
option and in SportsLine's sole and absolute discretion, Jordan shall
continue to receive all such Deficiency Payments in accordance with the
amounts and schedule provided in Exhibit C and paragraph 3 hereof shall
remain in full force and effect during the remainder of the Term as if this
Agreement had not been terminated.
28. COMPLIANCE WITH LAWS. Each party shall comply with applicable law in
connection with the development and publication of the Jordan Web Site.
Jordan and FAME and SportsLine agree, in particular, to comply with all laws
concerning obscenity, defamation, infringement, rights of privacy,
harassment and export controls, among others, and to ensure that the use,
reproduction and distribution of the content contained in Jordan Web Site in
and of itself, does not violate such laws or related legal rights of third
parties.
29. ACKNOWLEDGMENT AND PROTECTION OF THE LICENSED RIGHTS.
(a) SportsLine recognizes and acknowledges the exclusive rights of Jordan in
and to the Jordan Endorsement. Nothing contained in or contemplated
under this Agreement will be construed to confer upon SportsLine any
right to have the Jordan Endorsement registered in the name of
SportsLine or to vest in SportsLine any right of ownership to the Jordan
Endorsement, and SportsLine will not, directly or indirectly, use,
register or cause to be used or registered, any word, symbol, character
or set of words, symbols or characters, trademark, trade name, service
mark or copyright consisting of, related to, similar to and/or
confusingly similar to any part of the Jordan Endorsement.
(b) During the term of this Agreement and following the expiration or
termination of this Agreement for any reason, SportsLine will not
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
(i) challenge the validity of ownership in or right to license, the
Jordan Endorsement, (ii) contest the fact that SportsLine's rights under
this Agreement are solely those of SportsLine and terminate upon
expiration or termination of this Agreement, (iii) represent in any
manner that SportsLine has any title or right to the ownership,
registration or use of any of the Jordan Endorsement in any manner
except as set forth in this Agreement, or (iv) challenge the right of
Jordan to grant a license for the Jordan Endorsement (unless in conflict
with the rights granted to SportsLine under this Agreement). Any and all
goodwill associated with or identified by the Jordan Endorsement will
inure directly or exclusively to the benefit and is the property of
Jordan.
(c) SportsLine will not (i) cause which may damage or endanger the Jordan
Endorsement or other trade name, trademark, service mark or intellectual
property right of Jordan, Jordan's title thereto or the rights of any
other licensee or franchisee, nor (ii) interfere in any manner with nor
attempt to prohibit the use or registration by Jordan of the Jordan
Endorsement or other trade name or trademark or service mark owned or
licensed by Jordan.
30. HEADINGS. Paragraph headings are for convenience only and shall not be used
in any manner to construe this agreement.
31. ENTIRE AGREEMENT. This Agreement, and the exhibits attached hereto,
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior and/or contemporaneous agreements and
understandings, written or oral between the parties with respect to the
subject matter hereof.
32. EXECUTION IN COUNTERPARTS. This Agreement may be executed by the parties in
counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which when taken together shall constitute one
and the same agreement.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the
date first written above.
SportsLine USA, Inc.,
a Delaware corporation
By: /s/ MICHAEL LEVY
------------------
Name: Michael Levy
Title: President
/s/ MICHAEL JORDAN
---------------
Michael Jordan (by [illegible]
atty in fact)
Falk Associates Management Enterprises
By: /s/ DAVID FALK
-----------------------------
Name: David Falk
Title: Chairman
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT "A"
TERM
The Term of this Agreement shall commence on the Effective Date and shall
continue in effect for ten (10) years from the date of execution of this
Agreement, unless sooner terminated according to the terms of this Agreement.
*****.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
EXHIBIT "B"
SERVICES, RIGHTS & CONTENT
1. SPORTSLINE RESPONSIBILITIES. SportsLine shall be responsible for the
following in connection with the Jordan Web Site:
a) All aspects of the technical development, graphical user interface,
production and maintenance of the Jordan Web Site.
b) All customer service, technical support, billing, fulfillment, credit
card authorization and processing associated with the sale of Premium
Features (as defined herein).
c) Concept design and creation of all Premium Features, including the
official exclusive online and off-line line Jordan Fan Clubs.
d) Maintenance of a merchandise area within the SportsLine Service
(including, without limitation, the Jordan Web Site) through which
SportsLine and Jordan will be able to sell merchandise, memorabilia and
custom signed products, and be responsible for all customer service,
technical support, billing, fulfillment, credit card authorization and
processing associated therewith.
2. EDITORIAL CONTROL OF THE JORDAN WEB SITE. Jordan shall have complete control
over the content of the Jordan Web Site, and Jordan shall be responsible to
provide SportsLine with all cleared content and information (including but
not limited to artwork, photos, articles and news clippings, biographical
information, audio and video clips, etc.) necessary to create and maintain
the Jordan Web Site, and shall use his best efforts to assist SportsLine in
acquiring and clearing any information and content not otherwise in Jordan's
possession. SportsLine shall consult with Jordan and FAME in order for the
Jordan Web Site content and programming to be consistent with Jordan's web
program and Jordan's overall marketing program.
3. JORDAN'S SERVICES. Jordan shall provide the following services to
SportsLine:
a) Conduct at least one (1) five (5) minute interview (by land-line
telephone) on a weekly basis in a format designated by SportsLine.
SportsLine will broadcast the audio, as permitted hereby, including but
not limited to transcription of the questions and answers into a column
format and/or use in chat sessions.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
SportsLine agrees that, as time restraints dictate, and subject to
Jordan's absolute discretion, such interviews and/or chat sessions may
be bundled on a monthly basis consisting of one (1) twenty (20) minute
interview in each month. Jordan acknowledges that SportsLine may, at
SportsLine's option, syndicate content from the SportsLine Service and
the Jordan Web Site in different media, and Jordan expressly authorizes
such syndication.
b) Answer five (5) electronic mail questions per week received from his
fans. SportsLine agrees that FAME shall be permitted to process the
electronic mail questions to facilitate a response from Jordan.
c) Make one (1) personal appearance (e.g., a due diligence meeting for
potential investors in an initial public offering of SportsLine's stock,
press conference, radio or television commercial, etc.) during the Term
lasting no longer than one (1) hour in duration. Any other appearances
requested by SportsLine shall be subject to Jordan's approval, in
Jordan's absolute discretion.
d) SportsLine may include in its letterhead Jordan's name and permit
SportsLine to use Jordan's name, photos and other materials reasonably
necessary to promote SportsLine and the Jordan Web Site. In each
instance, Jordan will have an opportunity to approve such use, which
approval shall not be unreasonably withheld; provided, however, that
SportsLine shall have the right without any prior approval to use screen
shots for promotional purposes as otherwise provided herein.
e) If requested by SportsLine and subject to Jordan's schedule, Jordan
agrees to make himself available for a photo shoot during the Term, not
to exceed four (4) hours, to provide SportsLine with photographs and
other materials reasonably necessary for SportsLine to promote its
service online and off-line (including print, radio, and television) and
to be used in the Jordan Web Site.
f) Serve as spokesmen for SportsLine to promote the appropriate
sports-related products and services offered on the SportsLine Service,
and subject to his absolute discretion, to appear in radio and/or
television commercials;
g) If requested by SportsLine and in Jordan's absolute discretion, Jordan
agrees to provide a mutually agreed upon number of items of autographed
merchandise, memorabilia, and/or custom signed
CONFIDENTIAL AND PROPRIETARY
Page -21-
<PAGE>
products to be distributed for free to SportsLine Service Subscribers
and/or members of Jordan's Fan Clubs as part of their membership kit.
h) Use best efforts to facilitate a relationship between SportsLine and The
Upper Deck Company that will ensure that SportsLine has access to (i) a
complete inventory of items of autographed merchandise and memorabilia;
(ii) product inventory and fulfillment capabilities sufficient to
satisfactorily support the projected demands of the parties' mutual
customers; (iii) digitized images of products or agree to develop such
images; and (iv) current costs/MSRP and accurate descriptive information
on all products. In addition, subject to Upper Decks' approval and
cooperation, Jordan agrees to develop a complete line of custom signed
products exclusively for sale on Jordan's Web Site, including game-worn
and game-used products, apparel and equipment. With respect to such
game-worn and game-used products, lordan shall, after each event in
which any such item is worn or otherwise used, promptly send all such
items to SportsLine cleaned and autographed for sale and/or auction on
Jordan's Web Site, provided, however, that nothing in this Agreement
shall cause or require Jordan to provide SportsLine with any autographs,
or any additional time, in connection with such autographed merchandise
and memorabilia. SportsLine agrees and acknowledges that any and all
autographs must come from the Upper Deck Company pursuant to Jordan's
agreement with the Upper Deck Company.
SportsLine agrees and acknowledges that any and all services from Jordan
required and/or requested by SportsLine shall be subject to Jordan's
schedule.
4. ADDITIONAL CONCEPTS. In addition to the foregoing, SportsLine and Jordan
agree to work together to create new and innovative products and concepts to
constantly improve the Jordan Web Site to keep it on the cutting edge.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT "C"
CONSIDERATION
1. DEFINITIONS. *****.
2. ADVERTISING/SPONSORSHIPS. *****.
3. EQUITY. *****. In
connection with the issuance of the Warrants, Jordan agrees to enter into
the "Lock-Up" Agreement attached hereto as EXHIBIT "G", and any similar
agreements as may be required by SportsLine's underwriters and/or lenders in
connection with any further securities offerings and/or financings.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
4. MERCHANDISE AND MEMORABILIA. *****.
5. PREMIUM FEATURES. *****.
6. MINIMUM GUARANTEE. *****:
a) *****:
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
7. *****.
8. RECORDS; AUDIT. SportsLine shall make ***** payments due to Jordan
underthis Agreement on a quarterly basis, within thirty (30) calendar days
following the end of the applicable quarter; such quarters ending on January
30, March 31, June 30, and September 30 of each year. Each such payment
shall be accompanied by a statement showing in reasonable detail how such
payment was computed. SportsLine will create, and maintain for a period of
not less than one (1) year following the end of the applicable calendar
year, records that accurately reflect the basis and calculation for the
payments required under this Agreement. Within ninety (90) calendar days
following the end of each calendar year, Jordan may request an audit of the
payments made by SportsLine hereunder. Such audit may be conducted by an
independent auditing firm selected by Jordan at its expense; provided, that
if an audit documents that SportsLine has underpaid Jordan in any calendar
year by an amount equal to five percent (5%) or more of the amount that
should have been paid hereunder, then SportsLine shall reimburse Jordan for
its actual cost incurred to the independent auditing firm to conduct such
audit. Jordan's independent auditor shall not disclose to Jordan or any
third party the contents of the SportsLine's
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
books and records, other than information necessary to determine the
calculation of the correct amount of any payments required to be made
hereunder.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT "D"
*****
CONFIDENTIAL AND PROPRIETARY
Page -27-
<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT "D" (CONT'D)
*****
CONFIDENTIAL AND PROPRIETARY
Page -28-
<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT "E"
*****
CONFIDENTIAL AND PROPRIETARY
Page -29-
<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT "F"
***** WARRANTS
THESE WARRANTS AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THESE
WARRANTS (THE "WARRANT SHARES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE SECURITIES LAWS.
THE WARRANT SHARES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDERTHE SECURITIES ACT AND ANY APPLlCABLE STATE SECURITIES LAWS OR
PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE
SELLER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
_________________, 1997
SPORTSLINE USA, INC.
WARRANTS FOR THE PURCHASE OF SHARES OF COMMON STOCK
FOR VALUE RECEIVED, SPORTSLINE USA, INC., a Delaware corporation
("SportsLine" or the "Company"), hereby certifies that Michael Jordan or his
registered assigns (the "Holder") is entitled, subject to the provisions
contained herein, to purchase from the Company ***** fully paid and
non-assessable shares of Common Stock (as defined below), subject to adjustment
as provided herein, at an exercise price per share of Common Stock (the
"Exercise Price", of $****.
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company as constituted on the date hereof. The number of shares of
Common Stockto be received upon the exercise of these Warrants may be adjusted
from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter referred to as "Warrant Stock." The term "Other Securities" means
any other securities that may be issued by the Company in addition to, or in
substitution for, the Warrant Stock.
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
References herein to the "Company" are to (i) SportsLine and any
successor thereto, (ii) any successor corporation resultng from the merger or
consolidation of SportsLine, or any successor thereto, with another corporation
or (ii) any corporation to which SportsLine, or any successor thereto, has
transferred its property or assets as an entirety or substantially as an
entirety.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of these Warrants, and (in the
case of loss, theft or destruction) of reasonably satisfactory indemnification,
and upon surrender and cancellation of these Warrants, if mutilated, the Company
shall execute and deliver new Warrants of like tenor and date. Any such new
Warrants, upon execution and delivery, shall constitute an additional
contractual obligation on the part of the Company, whether or not these Warrants
so lost, stolen, destroyed or mutilated shall be at any time enforceable by
anyone.
The Holder agrees with the Company that these Warrants are issued, and
all the rights hereunder shall be held subject to, all of the conditions,
limitations and provisions set forth herein, including the following:
1. EXERCISE OF WARRANTS.
1.1 EXERCISE PERIOD: METHOD OF EXERCISE. These Warrants shall vest and
become exercisable as follows: (a) with respect to ***** shares of Common
Stock, one (1) year after the date first written above; and (b) with respect to
an additional ***** shares of Common Stock, at the end of each consecutive one
(1) year period thereafter until the Warrants have become exercisable with
respect to the total number of shares of Common Stock set forth above; provided,
however, that the vesting of the Warrants shall be subject to the condition that
that certain Advisory Agreement dated as of ___________________, 1997 (the
"Advisory Agreement") between SportsLine and the Holder, as amended or modified,
shall be in effect at the relevant vesting date(s), and no further Warrants
shall vest on or after the expiration, nonrenewal or termination of said
agreement. Subject to the foregoing, any vested Warrants may be exercised, in
whole or in part, at any time, or from time to time during the period commencing
on the date hereof and expiring on the date of expiration or earlier termination
of the Advisory Agreement, by presentation and surrender of these Warrants to
the Company at its principal office (which on the date hereof is 6340 N.W. 5th
Way, Ft. Lauderdale, Florida 33309), or at the office of its stock transfer
agent (which on the date hereof is the Company), if any, with the Warrant
Exercise Form attached hereto duly executed and accompanied by payment (either
in cash or by certified or official bank check or checks, payable to the order
of the Comparny) of the Exercise Price for the number of shares specified in
such form. If these Warrants are exercised in part only, the Company shall, upon
surrender of these Warrants
CONFIDENTIAL AND PROPRIETARY
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<PAGE>
for cancellation, execute and deliver new Warrants evidencing the rights of the
Holder thereof to purchase the balance of Warrant Stock (and Other Securities)
purchasable hereunder. Upon receipt by the Company of these Warrants, together
with the Exercise Price, at its office, or by the Company's stock transfer agent
at its office, in proper form for exercise, the Holder shall be deemed to be the
holder of record of the Warrant Stock (and Other Securities) issuable upon such
exercise, notwithstanding that the transfer books of the Company shall then be
closed or that certificates representing such Warrant Stock (or Other
Securities) shall not then be actually delivered to the Holder. The Company
shall pay any and all documentary stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of Warrant Stock (and Other
Securities) upon exercise of these Warrants.
2. RESERVATION OF SHARES AND OTHER SECURITIES. The Company will at all
times reserve for issuance and delivery upon exercise of these Warrants all
shares of Warrant Stock and other shares of capital stock of the Company (and
Other Securities) from time to time receivable upon exercise of these Warrants.
All such shares (and Other Securities) shall be duly authorized and, when issued
upon such exercise, shall be validly issued, fully paid and non-assessable and
free and clear of all preemptive rights.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issuable upon the exercise of these Warrants, but the
Company shall pay the Holder an amount equal to the fair market value of such
fractional share in lieu of each fraction of a share otherwise issuable upon any
exercise of these Warrants, as determined by the Board of Directors in its
reasonable discretion.
4. EXCHANGE OF WARRANTS. These Warrants are exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereofto
the Company or at the office of its stock transfer agent, if any, for other
Warrants of different denominations, entitling the Holder hereofto purchase in
the aggregate the same number of shares of Warrant Stock (and Other Securities)
purchasable hereunder.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights as a shareholder of the Company, either at law or in
equity, and the rights of the Holderare limited to those expressed herein.
6. ANTI-DILUTION PROVISIONS.
6.1 ADJUSTMENT FOR RECAPITALIZATION. If the Company shall at any time
subdivide its outstanding shares of Common Stock (or Other Securities at the
time receivable upon the exercise of these Warrants) by recapitalization,
CONFIDENTIAL AND PROPRIETARY
Page -32-
<PAGE>
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stockto its shareholders, the number of
shares of Common Stock (or Other Securities) subject to these Warrants
immediately prior to such subdivision shall be proportionately increased and the
Exercise Price per share shall be proportionately decreased, and if the Company
shall at any time combine the outstanding shares of Common Stock (or Other
Securities) by recapitalization, reclassification or combination thereof, the
number of shares of Common Stock (or Other Securities) subject to these Warrants
immediately prior to such combination shall be proportionately decreased and the
Exercise Price per share shall be proportionately increased. Any such
adjustments pursuant to this Section 6.1 shall be effectve at the close of
business on the effective date of such subdivision or combination or, if any
adjustment is the result of a stock dividend or distribution, then the effective
date for such adjustment shall be the record date therefor.
6.2 ADJUSTMENT FOR REORGANIZATION. Consolidation. Merger. Etc. (a) In
case of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable upon the exercise of these
Warrants) after the date hereof or in case after such date the Company (or any
such other corporation) shall consolidate with or merge into another corporation
or convey all or substantially all of its assets to another corporation, then,
and in each such case, the Holder of these Warrants, upon the exercise hereof,
at any time after the consummation of such reorganization, consolidation, merger
or conveyance, shall be entitled to receive, in lieu of the securities and
property receivable upon the exercise of these Warrants prior to such
consummation, the securities or property to which such Holder would have been
entitled upon such consummation if such Holder had exercised these Warrants
immediately prior thereto (but had not exercised any rights with respect to such
securities or property in connection with the reorganization, consolidation,
merger or conveyance); in each such case, the terms of these Warrants shall be
applicable to the securities or property receivable upon the exercise of these
Warrants after such consummation.
(b) In any case where the Company shall consolidate with or merge into
another corporation, and shall not be the surviving corporation, or shall convey
all or substantially all of its assets to another corporation, then, and in each
such case, the surviving corporation or the corporation that shall have received
substantially all of the Company's assets shall expressly assume the obligations
of the Company under these Warrants in a form reasonably satisfactory to the
Holder hereof.
6.3 NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to avoid
the
CONFIDENTIAL AND PROPRIETARY
Page -33-
<PAGE>
observance or performance of any of the terms of these Warrants, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holderof these Warrants against impairment. Without limiting
the generality of the foregoing, while these Warrants are outstanding, the
Company (a) will not permit the par value, if any, of the shares of Warrant
Stock to be above the amount payable therefor upon such exercise and (b) will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue or sell fully paid and non-assessable
shares of Warrant Stock and Other Securities upon the exercise of these
Warrants.
6.4 CERTIFICATE AS TO ADJUSTMENTS. In each case of an adjustment in the
number of shares of Warrant Stock or Other Securities receivable upon the
exercise of these Warrants, the Company at its expense will promptly compute
such adjustment in accordance with the terms of these Warrants and prepare a
certificate executed by an executive officer of the Company setting forth such
adjustment and showing in detail the facts upon which such adjustment is based.
The Company will forthwith mail a copy of each such certificate to the Holder.
6.5 NOTICES OF RECORD DATE. Etc. In case:
(a) the Company shall take a record of the holders of its Common Stock
(or Other Securities at the time receivable upon the exercise of these Warrants)
for the purpose of entitling them to receive any dividend (other than a cash
dividend at the same rate as the rate of the last cash dividend theretofore
paid) or other distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities, or
to receive any other right; or
(b) of any capital reorganization of the Company, any reclassification
of the capital stock of the Company, any consolidation or merger of the Company
with or into another corporation, or any conveyance of all or substantially all
of the assets of the Company to another corporation; or
(c) of any voluntary or involuntary dissolution, liquidation or winding
up of the Company;
then, and in each such case, the Company shall mail or cause to be mailed to
each Holder of a Warrant at the time outstanding a notice specifying, as the
case may be, (i) the date on which a record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up is to take place, and the time, if any,
to be fixed, as to which the
CONFIDENTIAL AND PROPRIETARY
Page -34-
<PAGE>
holders of record of Warrant Stock (or such other securities at the time
receivable upon the exercise of these Warrants) shall be entitled to exchange
their shares of Warrant Stock (or such other securities) for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up. Such notice shall be
mailed at least 20 days priorto the date therein specified and these Warrants
may be exercised priorto said date during the term of these Warrants.
8. RESTRICTIONS ON TRANSFER OF WARRANTS WARRANT STOCK AND OTHER
SECURITIES. The Warrant Stock and Other Securities may not be sold, transferred
or otherwise disposed of unless registered under the Securities Act of 1933 (the
"Securities Act") and any applicable state securities laws or pursuant to
available exemptions from such registration, provided that the seller delivers
to the Company an opinion of counsel satisfactory to the Company confirming the
availability of such exemption.
9. LEGEND. Unless the shares of Warrant Stock or Other Securities have
been registered under the Securities Act, upon exercise of any of these Warrants
and the issuance of any of the shares of Warrant Stock or Other Securities, all
certificates representing such securities shall bear on the face thereof
substantially the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION,
PROVIDED THAT THE SELLER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY CONFIRMING THE AVAILABILITY OF SUCH
EXEMPTION. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR
THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
10. NOTICES. All notices required hereunder shall be in writing and
shall be deemed given when telegraphed, delivered personally or within two days
after mailing when mailed by certified or registered mail, return receipt
requested, to the Company at its principal office, or to the Holder at the
address set forth on the record books of the Company, or at such other address
of which the Company or the Holder has been advised by notice in writing
hereunder.
CONFIDENTIAL AND PROPRIETARY
Page -35-
<PAGE>
11. APPLICABLE LAW. These Warrants shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without giving effect to
conflicts of law principles.
CONFIDENTIAL AND PROPRIETARY
Page -36-
<PAGE>
IN WITNESS WHEREOF, the Company has caused these Warrants to be signed
on its behalf, in its corporate name, by its duly authorized officer, all as of
the day and year first above written.
SPORTSLINE USA, INC.
By:
--------------------------------
Titie: President
CONFIDENTIAL AND PROPRIETARY
Page -37-
<PAGE>
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise Warrants to
purchase __________ shares of Common Stock of SportsLine USA, Inc., a Delaware
corporation, and hereby makes payment of $_______________ in full satisfaction
therefor.
__________________________________
Signature
__________________________________
Signature, if jointly held
__________________________________
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the Holder of the within Warrants)
Name____________________________________________________________________________
(Please typewrite or print in block letters)
Address_________________________________________________________________________
________________________________________________________________________________
Social Security or Taxpayer Identification Number_______________________________
CONFIDENTIAL AND PROPRIETARY
Page -38-
<PAGE>
SportsLine USA, Inc.
6340 N.W. 5th Way
Fort Lauderdale, Florida 33309
Gentlemen:
This letter is being furnished in connection with the acquisition by
the undersigned of warrants ("Warrants") to purchase shares of common stock,
$.01 par value ("Comman Stock"), of SportsLine USA, Inc., a Delaware corporation
(the "Company"). In connection with the acquisition of the Warrants, the
undersigned hereby represents and warrants to the Company as follows:
1. The undersigned is acquiring the Warrants solely for the
undersigned's own accourt and not for the account or beneficial interest of any
other person, and the Warrants are not being acquired with a view to or for
resale in connection with any distrbution within the meaning of the Act.
2. The undersigned acknowledges that (a) the offer and sale of the
Warrants and the Common Stock issuable upon exercise of the Warrants
(collectively, the "Securities") have not been registered under the Securities
Act of 1933, as amended (the "Act"), or applicable state securities laws, and
may not be sold, transferred, pledged, or otherwise disposed of unless
subsequently so registered or unless the undersigned delivers to the Company an
opinion of counsel satisfactory to the Company that registration under the Act
and any applicable state securities laws is not required; (b) the Company is
under no obligation to register or perfect any exemption for resale of the
Securities; and (c) any certificate evidencing the Securities will bear a
restrictive legend prohibiting the transfer thereof except in compliance with
applicable federal and securities laws. The undersigned understands that at
present there is no market for the Securities and that such a market is not
likely to exist in the foreseeable future.
3. In acquiring the Securities, the undersigned has not acted on the
basis of any representations end warranties concerning the business or financial
condition of the Company, other then those contained in documents furnished to
the undersigned by the Company specifically in connection with such acquisition.
The undersigned is an "accredited investor", as defined in Rule 501 of
Regulation D promulgated under the Act, has such knowledge and experience in
business, financial and investment makers that the undersigned is capable of
evaluating the merits and risks of an investment in the Securities, and has been
afforded the opportunity to ask questions of, and receive answers from, the
Company and to obtain any additronai information necessary to verify the
accuracy of any information provided by the Company, and in general had access
to all information the undersigned deemed material to an investment decision
with respect to the acquisition of the Securities.
The undersigned acknowledges that the Company will rely on foregoing
representations and warranties and agrees to indemnify and hold harmless the
Company, its officers and directors and any controlling persons of the Company
from and against any and all loss, damage or liability arising out of any
misrepresentation contained herein. This letter shall be binding upon the
CONFIDENTIAL AND PROPRIETARY
Page -39-
<PAGE>
undersigned's heirs, executors, administrators, legal representatives,
successors and assigns, and inure to the benefit of the Company's successors and
assigns.
Michael Jordan
_____________________
Dated:______________________________
CONFIDENTIAL AND PROPRIETARY
Page -40-
<PAGE>
EXHIBIT "G"
<PAGE>
____________________, 1997
SPORTSLINE USA, INC.
6340 N.W. 5th Way
Fort Lauderdale, Florida 33309
ROBERTSON, STEPHENS & COMPANY LLC
COWEN & COMPANY
MONTGOMERY SECURITIES
as Representatives of the
Several Underwriters
c/o Robertson, Stephens & Company LLC
555 California Street
San Francisco, California 94104
Ladies and Gentlemen:
The undersigned understands that Robertson, Stephens & Company LLC,
Cowen & Company and Montgomery Securities, as representatives (the
"Representatives") of the several underwriters (the "Underwriters"), proposed to
enter into an Underwriting Agreement (the "Underwriting Agreement") with
SportsLine USA, Inc. (the "Company"), providing for the initial public offering
by the Underwriters, including the Representatives, of common stock, $.01 par
value per share (the "Common Stock"), of the Company (the "Public Offering").
In consideration of the Underwriters' agreement to purchase and
undertake the Public Offering and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the undersigned agrees that, without
the prior written consent of Robertson, Stephens & Company LLC, the undersigned
will not directly or indirectly offer, sell, solicit an offer to buy, make any
short sale, pledge, grant any option to purchase, contract to sell, or otherwise
dispose of or transfer any shares of Common Stock of the Company (including,
without limitation, shares of Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission) or any securities
convertible into or exercisable or exchangeable for such Common Stock (including
shares of Common Stock which may be issued upon exercise of a stock option or
warrant) or, in any manner, transfer all or a portion of the economic
consequences associated with the ownership of the Common Stock (including,
without limitation, by way of equity swap, hedging, or any other form of
derivative transaction) (any of the foregoing, a "Transfer"), or exercise any
registration rights with respect to the Common Stock, in each case for the
period
<PAGE>
_________________, 1997
Page 2
ending 180 days from the date the Registration Statement (No. 333-25259) filed
by the Company in connection with the Public Offering is declared effective by
the Securities and Exchange Commission; provided, however, that the undersigned
may Transfer, including any Transfer as a bona fide gift, any such securities to
any person who, at or prior to the time of such Transfer, has executed and
delivered to the Representatives a letter agreement in the form hereof.
In addition, the undersigned agrees that the Company may, with respect
to any shares for which the undersigned is the record or beneficial holder,
cause the transfer agent for the Company to note stop transfer instructions with
respect to such shares on the transfer books and records of the Company.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this letter agreement, and that, upon
request, the undersigned will execute any additional documents necessary or
desirable in connection with the enforcement hereof. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned and all obligations of the undersigned created hereunder shall be
binding upon the heirs, personal representatives, successors, and assigns of the
undersigned. This letter agreement shall automatically terminate on the earlier
of (i) August 1, 1997, in the event that the Underwriting Agreement is not
executed by the Company or on prior to that date and (ii) the date that the
Underwriting Agreement is terminated, in the event that the Underwriters do not
purchase the Common Stock and the Underwriting Agreement is terminated pursuant
to its terms.
Very truly yours,
Dated:______________________ _________________________________
Name of Holder
_________________________________
Signature
Dated:______________________ _________________________________
Name of Joint Holder
_________________________________
Signature
EXHIBIT 10.15
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
ADVISORY AGREEMENT
This Advisory Agreement, dated as of July 1st, 1997, between ETW Corp.
("ETW") and SportsLine USA, Inc. ("SportsLine") provides as follows:
SportsLine desires to contract with ETW for certain advisory services
related to its sports-oriented on-line service (the "Service"), and ETW is
willing to render such services (including the services of Tiger Woods
("Woods")) as hereinafter provided. In consideration of the mutual agreements
and covenants set forth in this Agreement, the receipt and adequacy of which is
hereby acknowledged, the parties agree as follows:
1. ESTABLISHMENT OF WOODS WEB SITE. SportsLine, will in consultation
with and subject to the approval of ETW, design, produce and maintain a
designated area of the Service that will exclusively feature content regarding
Woods and ETW and will be accessible to users of the Worldwide Web (the "Web")
portion of the Internet through a "free" area of the Service without the
necessity of being a subscriber to the Service (hereinafter, the "Woods Web
Site"). The Woods Web Site will be operated by SportsLine on SportsLine's
servers at a Web address (the "URL") mutually agreed upon by the parties
(tentatively, tiger.sportsline.com); SportsLine and ETW will also develop
"premium" features including, but not limited to, the exclusive official Woods
on-line "fan club" (described in more detail below) that will permit visitors to
the Woods Web Site who pay a specified fee to obtain access to periodically
updated information and/or applications not generally made available to other
visitors to the Woods Web Site ("Premium Features"); any such Premium Features
would contain such content, and be offered at prices and on terms, as may be
mutually agreed by SportsLine and ETW. In connection with the Woods Web Site,
SportsLine will, at its sole cost and expense:
(a) DESIGN AND MAINTENANCE. Maintain full responsibility for the
design, technical development, production and maintenance (including customer
phone support) of the Woods Web Site, including publishing any content as
provided by ETW in accordance with the terms hereof, which design shall, in all
events, be subject to the prior approval of ETW;
(b) MARKETING AND CONTENT. Coordinate all on-line marketing efforts
regarding the Woods Web Site and work closely with ETW and its representatives
to make recommendations regarding new content areas, Premium Features and other
initiatives for the Woods Web Site to ensure that ETW maximizes its association
with SportsLine which markering efforts and content shall, in all events, be
subject to the prior approval of ETW. It is understood and agreed that all
marketing efforts regarding the Woods Web Site, including but not limited to
contacting and procuring sponsors, endorsers or advertisers therefor, will be
coordinated exclusively through the IMG Group of Companies. Without limiting the
foregoing, all sponsors and endorsers of or advertisers on the Woods Web Site
and the terms of any contracts with such sponsors, endorsers or advertisers
shall be subject to ETW's prior approval;
(c) ACCOUNT EXECUTIVE AVAILABILITY. At ETW's request, make ETW's
Account Executive at SportsLine available to anend a reasonable number of
internal ETW meetings to ensure that SportsLine is fully apprised of ETW
marketing, merchandising and communications
-1-
<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
goals and objectives and, in connection therewith, execute any and all
confidentiality agreements reasonably requested by ETW;
(d) *****;
(e) TRAINING AND ASSISTANCE. Make ETW's Account Executive at SportsLine
available to educate and train Woods and other ETW representatives with respect
to the functionality of the SportsLine Service and be available to assist them,
at their request, should they require any assistance regarding the use of the
computers described above in connection with this Agreement;
(f) INTERNET ACCESS. Develop and provide Internet access to the Woods
Web Site within ninety (90) days after the execution of this Agreement;
(g) CUSTOMER SERVICE AND BILLING. Be responsible for all customer
service, technical support, billing, credit card authorization and processing
associated with the sale of Premium Features; and
(h) FREE SUBSCRIPTIONS. In order to maximize the effectiveness of the
Woods Web Site, provide ETW with a reasonable number (to be mutually agreed
upon) of free subscriptions to the Service and reasonable number (to be mutually
agreed upon) of free accesses to Premium Features to be used by ETW and its
designees; and
(i) FIELD REPORTER. Within 30 days of the date hereof, SportsLine will
retain Mark Saltau, or another individual approved by ETW, as a field reporter
(the "Reporter") to be ETW's primary conduit of information to SportsLine's
executive producer assigned to ETW's account. SportsLine will, upon request of
ETW at any time, replace the individual retained as the Reporter with another
individual approved by ETW.
2. ENGAGEMENT OF ETW: DESCRIPTION OF ADVISORY SERVICES. (a) SportsLine
hereby engages and retains ETW, for a period of three (3) years commencing on
the date hereof, subject to any extensions, renewals or early termination
pursuant to the provisions hereof (the "Advisory Period"), to render the
following services (the "Advisory Services"):
(i) ADVISORY BOARD. Designate Woods to serve on SportsLine's
advisory board (it is understood and agreed that Woods will
not be required to attend or appear at any scheduled advisory
board meetings unless he chooses to do so, will not be a
member of SportsLine's Board of Directors, will not have any
vote, will have none of the duties or obligations applicable
to an actual Board member, including but not limited to
fiduciary duty, duty of loyalty, etc., and will not be
required to perform any services that would be subject to
federal or state securities laws);
-2-
<PAGE>
(ii) CONSULTATION. Consult with and advise SportsLine from time to
time at SportsLine's request and ETW's reasonable convenience
with respect to corporate, business and marketing strategy
with respect to the Woods Web Site;
(iii) INTRODUCTION TO CORPORATE SPONSORS AND STRATEGIC PARTNERS.
Use its commercially reasonable efforts to introduce
SportsLine, upon SportsLine's request, to potential corporate
sponsors and strategic partners and to assist SportsLine in
the sale of advertising and sponsorships. All fees, charges
or other amounts payable for any such sponsorships and
advertising shall be payable to and retained by SportsLine;
provided, that SportsLine will be obligated to compensate ETW
with respect to such sponsorship or advertising revenues
which are generated by ETW in accordance with Section
4(a)(ii) hereof;
(iv) INTRODUCTION TO LICENSEES. Use its commercially reasonable
efforts to introduce SportsLine to ETW licensees who have the
right to sell ETW endorsed or logged merchandise for purposes
of possible sale of such merchandise through the Woods Web
Site and will reasonably cooperate with SportsLine and ETW's
licensees in such efforts. All fees, charges or other amounts
payable with respect to such sales received by SportsLine
shall be retained by SportsLine subject only to SportsLine's
obligations to pay any fees to such vendor and ETW royalties
on such sales negotiated with such vendor. SportsLine shall
be solely responsible for entering into and administering any
such arrangement with ETW merchandise vendors. Subject to
obtaining any necessary third party consents, if ETW elects
to create any custom memorabilia, such as items personally
autographed by Woods ("Woods Memorabilia"), for sale solely
through SportsLine, ETW shall pay SportsLine a percentage of
the retail sales price for such Woods Memorabilia to be
agreed upon by the parties;
(v) USE OF WOODS' NAME AND LIKENESS. Grant to SportsLine (A) the
non-exclusive, non-transferable, royalty-free, worldwide
right and license to include in its letterhead Woods' name as
a member of and listed with other members of SportsLine's
advisory board, such list appearing in a commercially
reasonable and customary fashion and (B) the exclusive,
non-transferable, royalty-free, worldwide right and license
to use Woods' name and likeness as reasonably necessary in
promoting the Woods Web Site and the Service; provided, that
SportsLine shall notify ETW of its intended use of such
materials and any such use shall be subject to ETW's consent
(which consent shall not be unreasonably withheld). For this
purpose, ETW shall, upon request, cause Woods to provide
SportsLine with any "stock" photographs of himself (with
respect to which ETW, Woods or his
-3-
<PAGE>
authorized agent, IMG, has full ownership rights). SportsLine
shall have the right to produce and broadcast radio and
television commercials and print advertising utilizing Woods'
name and likeness as described above, as well as the ETW
Information (to the extent SportsLine obtains all necessary
third party consents), to promote the Woods Web Site and the
Service; provided that all such media promotion shall be
subject to ETW's prior written approval. It is understood
that any such media promotion shall not require the services
of Woods;
(vi) PERSONAL APPEARANCE. Upon request and at a time and location
of ETW's choosing, cause Woods to make a personal appearance
of no longer than 30 minutes in duration at a press
conference to announce the launching of the Woods Web Site
and the relationship between Woods and SportsLine. It is
understood that ETW shall have prior approval of all
information and material to be distributed or disseminated in
any fashion at such press conference and SportsLine agrees
not to distribute or disseminate any such material without
first obtaining ETW's approval; and
(vii) PRESS CONFERENCES. Upon request and subject to SportsLine
obtaining, at its own cost, all necessary consents,
permissions and access, and except as may be restricted by
other agreements or arrangements ETW or Woods has with third
parties as of the date hereof, allow SportsLine to simulcast
any and all of Woods' press conferences on the Woods Web
Site; and
(viii) MONTHLY UPDATES. Subject to SportsLine successfully retaining
the Reporter, submit (or cause to be submitted) 30 minutes of
audio and/or video content, on a monthly basis, each to be
published under Woods' name on the Woods Web Site on a
variety of appropriate topics relating to the sport of golf
and whatever other content ETW desires to include in the
Woods Web Site. To provide such content, ETW will, at ETW's
sole discretion, cause Woods, Mr. Earl Woods or IMG to
cooperate with the Reporter at a time and place convenient to
Woods, Mr. Earl Woods or IMG, as the case may be. It is
understood that Woods will so cooperate with the Reporter to
personally provide 10 minutes of such 30 minutes of content
which may be audio and/or videotaped.
(b) WOODS' AVAILABILITY. ETW agrees to devote a reasonable amount of
time, under the circumstances, toward the performances of its duties hereunder.
Whenever ETW is required to make Woods available, SportsLine understands and
agrees that any such occasion is subject to Woods personal and professional
schedule (for example, Woods will not be available during the week of any
tournament in which he is participating). It is not intended that ETW devote
full time and effort in providing the Advisory Services. SportsLine understands
that SportsLine's failure to
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utilize services of Woods hereunder shall not result in any reduction in
payments to ETW hereunder, nor may unused appearances from one year of the
Advisory Period be carried forward to another year. The obligations of ETW to
provide the services of Woods hereunder are subject to the condition that
payments to ETW are current and up to date and SportsLine is not otherwise in
breach of any provisions ofthe Agreement. If ETW confirms Woods availability for
any appearance and Woods is unable to appear due to illness, injury or other
emergency, such non-appearance is not a breach of this Agreement and neither ETW
nor Woods shall be responsible for any expenses incurred due to such
non-appearance. It is understood that the recommendations and other material
prepared or delivered by ETW hereunder shall not be deemed guarantees,
representations or warranties of ETW. Notwithstanding anything to the contrary
contained herein, in addition to the time commitment required by paragraph
2(a)(vi), ETW shall not be required to spend more than 30 minutes per month in
the performance of all its obligations under this Agreement and ETW shall not be
required to cause Woods to spend more than 10 minutes a month in connection with
the performance by ETW of its obligations under this Agreement (such 10 minutes
(or such greater time as Woods expands) to be part of and credited toward the
aforementioned 30 minutes);
(c) TERMINATION OF RIGHTS UPON TERMINATION OR EXPIRATION OF AGREEMENT.
All rights of SportsLine to use, in any manner, Woods name or likeness, or to
refer to Woods, shall cease immediately upon termination or expiration of the
Advisory Period and this Agreement.
(d) OPTION TO EXTEND. ETW may, in its sole discretion, upon at least
ninety (90) days' written notice in advance of the scheduled expiration date of
the initial Advisory Period, extend the Advisory Period for up to an additional
two years.
3. FAN CLUB. (a) SportsLine will create, operate and maintain the
exclusive official Woods on-line fan club on the Woods Web Site that allows
Woods to communicate with his fans through regular E-Mail messages, columns and
newsletters, to record audio clips that allow fans to listen to live and
previously recorded interviews and insights and to play video clips and
highlights from previously recorded interviews and events (to the extent
SportsLine obtains all necessary third party consents) (collectively,
"Electronic Means"). At SportsLine's request, ETW will answer a maximum of five
(5) electronic mail questions per week received from members of Woods' official
on-line fan club, if and to the extent such questions are timely forwarded by
SportsLine, given Woods' schedule. In addition, SportsLine will create, operate
and maintain the exclusive official Woods off-1ine fan club that allows Woods to
communicate with his fans through means other than Electronic Means.
(b) With respect to both the official on-line and off-line fan clubs,
SportsLine shall, at its sole cost and expense, be responsible for the following
services (the "Fan Club Services"):
(i) Creating and marketing a fan club membership package which
shall be subject to ETW's prior approval;
(ii) Creating a mailing list consisting of Members (as defined
below). SportsLine agrees that throughout the Advisory
Period, SportsLine will correct, update and modify such
mailing list as a part of
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SportsLine's operation of the fan clubs. SportsLine agrees,
at the request of ETW given at any time or times during the
Advisory Period, to deliver to ETW, at SportsLine's cost, a
copy of the then-current mailing list for the fan clubs. Such
list shall be provided in whatever recording media ETW
reasonably requests. SportsLine specifically acknowledges and
agrees that such mailing list is the property of ETW, and
SportsLine shall have the right to use the fan club mailing
list in accordance with paragraphs 4(a)(iii) and 6(j) hereof.
SportsLine shall have no right (during the Advisory Period or
at any time thereafter) to make any other use of such
membership list for any other purpose whatsoever without
ETW's prior approval. SportsLine acknowledges and agrees that
ETW shall have the right to make use of the fan club
membership list in whatever manner ETW may choose (including,
without limitation, licensing or selling such list) for any
purpose ETW may designate without the obligation to pay any
fee or compensation to SportsLine;
(iii) Soliciting individuals to become "fan club members" (the
"Members");
(iv) Writing and sending and/or distributing to the Members
periodic newsletters, press releases and touring schedule
updates, all of which shall be subject to ETW's prior
approval;
(v) Providing Members with an "official" membership card,
information packet and other promotional materials relating
to the fan clubs, all of which shall be subject to ETW's
prior approval;
(vi) Providing Members with a sales brochure for
officially-licensed fan club merchandise, and arranging for
filling of orders submitted in response to such sales
brochure, all of which shall be subject to further agreement
between ETW and SportsLine; and . (vii) Collecting all income
generated from the fan clubs' activities accounting for and
distributing the income as set forth herein; and
(viii) Such other services and activities as are generally
recognized as appropriate to be provided by a fan club for a
well-known celebrity, as the parties may hereafter agree.
If at any time during the Advisory Period, SportsLine or ETW desires to
add additional Fan Club Services, then SportsLine may submit such request in
writing to ETW, or ETW may submit such request in writing to SportsLine, and
upon receipt thereof, the parties shall discuss in good faith the possibility of
adding such additional services.
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
(c) SportsLine shall operate the fan clubs in a professional and
financially responsible manner in accordance with the following guidelines:
(i) Fan club dues shall be established upon mutual agreement of
the parties;
(ii) ETW shall have final approval of all information, including
photographs, video clips, etc., to be sent, broadcast or made
accessible to Members and/or used in connection with the fan
clubs, and of the parameters or rules of any fan club
conventions and/or contests ("Fan Club Activities").
SportsLine shall submit each of these Fan Club Activities to
ETW in writing for ETW's approval;
(iii) SportsLine will use commercially reasonable efforts to
develop new marketing concepts for the fan clubs ("New Club
Concepts"), which SportsLine shall not implement until
SportsLine has received ETW's written approval for any such
New Club Concept; and
(iv) Before printing, publishing or distributing any one or more
items, SportsLine shall first submit to ETW at its address as
set forth herein for prior approval, a sample thereof in the
form in which it is proposed to be used by SportsLine. ETW
agrees that any material submitted hereunder will not be
unreasonably disapproved and, if any is disapproved, that
SportsLine will be advised of the specific grounds for
disapproval in each case.
4. PAYMENTS BY SPORTSLINE AND ETW.
(a) In full consideration for the Advisory Services, SportsLine shall
pay ETW the following compensation:
(i) WARRANTS. Warrants, in the form of Exhibit A attached hereto
(the "Warrants"), to purchase ***** shares of SportsLine's
Common Stock par value $.01 per share (the "Common Stock"),
or any stock or other securities into which the Common Stock
may hereafter be converted or for which such Common Stock may
be exchanged after giving effect to the terms of such
conversion or exchange (by way or reorganization,
recapitalization, merger, consolidation or otherwise) at an
exercise price of $**** per share (as such exercise price may
be adjusted pursuant to the terms of the Warrants). In
connection with the issuance of the Warrants, ETW agrees to
enter into the Lock-Up Agreement attached hereto as Exhibit
B, and any similar agreements required by SportsLine's
underwriters in connection with any future offerings of
securities.
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
(ii) NET SPONSORSHIP REVENUES. *****.
(iii) NET PREMIUM REVENUES. *****.
(iv) *****.
(v) *****
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
*****.
(b) QUARTERLY PAYMENTS. Except as otherwise expressly provided herein,
each party will make payments due to the other party under this Agreement on a
quarterly basis, within thirty (30) days following the end of the applicable
calendar quarter. Each such payment shall be accompanied by a statement showing
in reasonable detail how such payment was computed.
(c) METHOD OF PAYMENTS. All payments shall be made by check made
payable to "International Management, Inc." and sent to ETW, c/o International
Management, Inc., One Erieview Plaza, Suite 1300, Cleveland, Ohio 44114. If
SportsLine fails to timely fulfill any of its payment obligations, whether or
not such failure is subsequently cured, ETW may elect to have payments made
hereunder by wire transfer or bank transfer.
5. *****.
6. PROVISIONS OF CONTENT: ADDITIONAL RESPONSIBILITIES OF SPORTSLINE AND
ETW.
(a) COMPUTERS AND SUPPORT SOFTWARE. In addition to all other
obligations of SportsLine hereunder, SportsLine will provide to ETW during the
term of this Agreement the use of a laptop computer and a desktop computer and
related equipment and such software, subject to all applicable licenses, as is
necessary for ETW or its representatives to transmit information to SportsLine
in accordance with the terms of this Agreement. All such hardware and software
shall remain the property of SportsLine and shall be returned to SportsLine
within fourteen (14) days after termination of this Agreement. Any software that
SportsLine provides to ETW to further the purpose of this Agreement ("Support
Software") shall be provided subject to the following: (i) SportsLine grants to
ETW a royalty-free, nonexclusive personal, revocable license to use the Support
Software (and any accompanying user documentation) solely for the purpose and in
the manner stated in such user documentation; (ii) ETW shall not provide the
Support Software or documentation to any other person without SportsLine's
express prior written consent; and (iii) except as otherwise agreed in writing
by SportsLine, ETW may make copies of the Support Software only as necessary to
fulfill the purpose of the license herein granted, subject to all applicable
licenses. If the Support Software becomes unavailable due to a claim that it
infringes a
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third party's rights, SportsLine shall provide substitute software or a
procedure for accomplishing the same objectives. Immediately following
termination of the license herein granted, upon SportsLine's direction ETW shall
either return or destroy all copies of the Support Software and documentation.
SportsLine's sole liability for defective Support Software shall be replacement
of the program disks. All rights of ETW to any Support Software shall cease
immediately upon termination of this Agreement.
(b) ETW INFORMATION. For purposes of this Agreement, the term "ETW
Information" means all information created and/or delivered by ETW to SportsLine
for inclusion in the Service, including but not limited to Woods' name, likeness
and biography, trade name(s), trademarks and service mark(s), whether or not
registered, included in such information and including any statement made by ETW
or Woods during any interview or chat session conducted solely for the benefit
of SportsLine and broadcast or distributed over the Service but excluding any
statement made by ETW or Woods on any occasion, instance or event not created
solely for the benefit of SportsLine. ETW shall be solely responsible for the
content of all ETW Information, and represents and warrants to SportsLine that
to the best of ETW's knowledge (i) all ETW Information: (A) will be accurate and
ETW's or Woods' own and original creation, except for information validly
licensed for use by ETW or in the public domain; (B) will consist only of
information that ETW is authorized to use and to authorize SportsLine to use as
contemplated in this Agreement; (C) will not constitute a libel or defamation or
conflict with any copyright, right of privacy or other rights of any third
party; and (D) will conform to all applicable federal, state and local laws and
regulations; and (ii) ETW has the full right and authority to grant the rights
and consents set forth herein. SportsLine shall be entitled at any time to bring
any concerns it has regarding ETW Information to the attention of ETW, whereupon
the parties will cooperate in good faith to address SportsLine's concerns. If
SportsLine, in its reasonable judgment, believes that immediate action is
required with regard to any ETW Information, SportsLine may, to the extent
reasonably necessary, delete, modify or revise such information, provided that
SportsLine shall notify ETW of such action prior thereto, if reasonably possible
(or, if not, as soon thereafter as practicable), and all representations,
warranties, indemnifications and other obligations of ETW wherever with respect
to such ETW Information shall immediately terminate and be of no force and
effect with respect to any such modified or revised information. Except as
expressly provided herein, SportsLine shall distribute ETW Information only as
transmitted by ETW, and shall not, and shall not authorize any third party to,
modify or edit such information without ETW's prior written consent.
Notwithstanding anything to the contrary contained herein, no content shall
appear on the Woods Web Site that has not been approved in advance by ETW or
supplied by ETW for such purpose, and in no event shall the Woods Web Site
include any interactive games. At ETW's request, SportsLine will provide ETW
with a summary report, in a mutually agreed format, of user activity on the
Woods Web Site and any other information reasonably requested by ETW; such
reports shall be provided no more frequently than quarterly.
(c) CREATION OF WOODS WEB SITE. Subject to all of ETW's rights of
approval as set forth herein ETW shall use its commercially reasonable efforts
to provide SportsLine with sufficient cleared content to enable SportsLine to
construct the Woods Web Site within sufficient time to permit SportsLine to meet
the deadline set forth in paragraph 1(f), and will use commercially reasonable
efforts to assist SportsLine in acquiring and clearing any information and
content not otherwise in ETW's possession. ETW shall have complete control over
the content,
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sponsorship and advertisement of the Woods Web Site, and ETW shall be
responsible to provide SportsLine with all cleared content and information
(including but not limited to photos, biographical information, video and audio
clips, etc.) necessary to create and maintain the Woods Web Site.
(d) TRANSMISSION OF ETW INFORMATION. ETW shall transmit to SportsLine
all ETW Information and updates thereof necessary for inclusion in the Woods Web
Site (including any Premium Features). Information and updates shall be
transmitted by land-line telephone or electronically in a format to be agreed
upon by SportsLine and ETW, on a pre-scheduled basis and/or as such information
and updates become available, as the case may be. SportsLine shall provide ETW
with a Service Identification number or numbers that will allow ETW to gain
access to the Service at no cost or charge for purposes of electronically
delivering ETW Information and content updates. All content supplied by ETW
shall be consistent with the editorial standards used by SportsLine for content
displayed on the Service (which standards SportsLine reserves the right to amend
from time to time) provided SportsLine timely and accurately conveys such
standards to ETW.
(e) RIGHT, TITLE AND INTEREST TO ETW INFORMATION. All right, title and
interest in ETW Information, including, but not limited to Woods' name, likeness
and biography, trade name(s), trademarks and service mark(s), are and shall
remain ETW's, subject to the rights and licenses granted to SportsLine herein.
SportsLine shall not use the term "tiger" as a lower level domain name in
connection with SportsLine's current or future universal resource locator
addresses without ETW's consent, except to the extent necessary to permit
SportsLine to produce, display, and facilitate access to the Woods Web Site or
otherwise perform its obligations pursuant to this Agreement. SportsLine shall
have the non-exclusive, royalty-free worldwide right and license, at no cost, to
use, display (privately or publicly) and distribute ETW Information, or any
portion thereof, on the Service or in connection with any demonstration,
promotion or advertisement of the Service in any medium; to enter ETW
Information into SportsLine's computer database; and to store, process, retrieve
and transmit the same on the Service. Any advertisements, promotions, publicity
or other material containing Woods name, likeness and biography, all proposed
uses of the ETW Information outside of the Woods Web Site, and any use of ETW
trade name(s), trademark(s) and service mark(s) and Woods name or likeness other
than as included in ETW Information shall be subject to ETW's prior consent
(which consent shall not be unreasonably withheld), and provided further that in
no event shall such rights extend to use in connection with merchandise or
products for sale or resale other than as expressly provided herein or as
allowed by law. SportsLine's rights hereunder shall include, but not be limited
to, SportsLine's right, in its sole discretion, to offer subscribers the option
of printing and downloading ETW Information or any portion thereof as a function
of the Service generally.
(f) OPERATION OF SERVICE; NON-ETW INFORMATION; CHARGES FOR THE SERVICE.
Other than with respect to the Woods Web Site, SportsLine will have sole
discretion to determine all aspects of the operation of the Service and all
matters relating to the content, structure and sequence of material appearing on
the Service; provided, however, that ETW shall have approval over any links to
the Woods Web Site. SportsLine represents and warrants to ETW that, (i) to the
best of SportsLine's knowledge, all content on the Service other than ETW
Information (to the extent not revised, modified or deleted by SportsLine)
("Non-ETW Information"), (A) will be accurate and
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SportsLine's own and original creation, except for information validly licensed
for use by SportsLine or in the public domain; (B) will consist only of
information that SportsLine is authorized to use; (C) will not constitute a
libel or defamation or conflict with any copyright, right of privacy or other
rights of, any third party; and (D) will conform to all applicable federal,
state and local laws and regulations and (ii) SportsLine has the full right and
authority to grant the rights and consents set forth herein. ETW shall be
entitled at any time to bring any concerns it has regarding Non-ETW Information
to the attention of SportsLine, whereupon the parties will discuss in good faith
ETW's concerns. Without limiting the generality of the foregoing, SportsLine
shall have sole discretion to determine the amount and basis of any fee charged
to Subscribers for use of the Service and SportsLine will bill for and collect
all fees charged to Subscribers to use the Service (including any Premium
Services on the Woods Web Site). Nothing in this Agreement shall limit
SportsLine's rights regarding charges for any aspect of the Service (including
any product or service offered by SportsLine, whether alone or in conjunction
with others, through means of the Service) other than the Woods Web Site
(excluding Premium Features). All right, title and interest to SportsLine's
name, trade name(s), trademark(s) and service mark(s) ("SportsLine
Identification") are and shall remain SportsLine's. Nothing herein shall be
deemed to grant ETW any proprietary rights to any of SportsLine's trade name(s),
trademark(s) or service mark(s). ETW shall have the right to use SportsLine
Identification in connection with advertising and promoting the Woods Web Site,
subject to SportsLine's prior written consent, not to be unreasonably withheld.
(h) SUBSCRIBER AGREEMENT. SportsLine will distribute a subscriber
agreement prohibiting republication, redistribution, public broadcast, public
display, resale, offering for resale or other commercial exploitation of
copyrighted or trademarked materials published in the Service without the
copyright or trademark owner's consent.
(i) COMPLIANCE WITH INDUSTRY STANDARDS. SportsLine represents and
agrees that the Service will at all times during the Agreement be an on-line
service devoted to sports information, activities and events, and that the
Service will comply with all on-line broadcasting industry standards.
(j) DATABASE FROM WOODS WEB SITE. SportsLine shall supply to ETW, at
the end of the Advisory Period and in such format reasonably requested by ETW, a
database of names, addresses and any other information obtained by SportsLine
with respect to users of the Woods Web Site (including, e.g., purchasers of
Premium Features, Woods Memorabilia and other merchandise or services sold via
the Woods Web Site, etc.) and Members for ETW's or Woods use in any manner.
SportsLine is also entitled to keep a copy of and utilize the information in
such database for any lawful purpose, but shall not use it in any way to imply
an endorsement by ETW or Woods of any company, product or service.
(k) PROMOTION. Subject to the terms and conditions hereof, SportsLine
will actively promote the Woods Web Site within the Service and use its best
efforts to promote the Woods Web Site throughout the Web. SportsLine agrees that
the Woods Web Site will receive a minimum of One Hundred Sixty-Six Thousand Six
Hundred Sixty Six Dollars ($166,666) in on-line advertising and promotion during
each Contract Year during the Advisory Period. SportsLine will use its best
efforts to provide television exposure for the Woods Web Site.
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(l) MILLENNIUM COMPLIANCE. SportsLine represents and warrants that all
software developed by SportsLine and used on SportsLine's computer systems to
offer the Service (the "SportsLine Software") is, or prior to the calendar year
2000 A.D. will be, designed to be used prior to, during, and after the calendar
year 2000 A.D., and that the SportsLine Software will operate during each such
time period without error relating to date data, specifically including any
error relating to, or the product of, date data which represents or references
different centuries or more than one century. All date processing by SportsLine
Software will correctly process dates for any leap year.
7. NONEXCLUSIVITY OF THIS AGREEMENT. SportsLine understands and agrees
that, except as set forth in the next sentence, ETW shall not be prevented or
barred from rendering services of any nature for or on behalf of any other
person, firm, corporation or entity, subject to ETW's obligation to maintain
confidentiality of SportsLine's confidential information pursuant to Section 10.
Notwithstanding the foregoing, during the Advisory Period and subject to the
remainder of this Section, ETW shall not be employed by, act as a consultant to,
provide any chat sessions or Woods fan clubs to, or otherwise render services
similar in the aggregate to those provided hereunder with respect to
sports-related programming to or for any on-line service (regardless of whether
such service is accessed through the Internet, a commercial on-line service or
otherwise) other than, with respect to chat sessions, to or for any of ETW's
licensees or sponsors. Subject to SportsLine providing reasonable assistance as
requested by ETW, ETW will, when commercially reasonable and practicable,
request that content and interviews given to third parties (other than licensees
or endorsers of Woods) do not appear on the Internet or the World Wide Web. It
is understood ETW is not guaranteeing the foregoing. The foregoing is not
intended to prohibit ETW or Woods from advertising on other sites, allowing
licensees of ETW or Woods to advertise on other sites, or participating in
on-line advertisements, interviews or articles or in on-line chat sessions for
any of ETW's licensees or sponsors; provided that any such advertisement,
interviews or articles shall include to the extent possible, subject to the
other site owner's consent, a graphical "icon" designed to link on-line users to
the Woods Web Site. ETW shall use good faith commercially reasonable efforts to
enlist the cooperation of other site owners who may wish to interview Woods or
do news articles on ETW or Woods, to either transmit such interviews/articles
over the Woods Web Site or provide a link to the Woods Web Site. Neither ETW nor
Woods is responsible for initiating action against, enjoining or otherwise
attempting to dissuade any person or entity not licensed by ETW, including
without limitation, any former licensee of ETW, the media or any advertiser,
promoter or other entity, which in contravention of this Agreement or otherwise,
makes unauthorized use of anything, including without limitation, any
unauthorized use of the ETW Information or ETW's or Woods' name, trade name,
trademarks, service marks, or logos, in promoting or advertising any product (or
products) or services whatsoever, including without limitation, any products
which are the same as or similar to or directly competitive with the Service.
Neither ETW nor Woods shall incur any liability to SportsLine or any third party
arising out of any such activity by any such person or entity. ETW agrees that
at SportsLine's sole cost and expense, ETW shall give such reasonable assistance
to SportsLine as may be required to cause any such person or entity to cease and
desist from such activities, or in connection with any lawsuit or other
proceeding by SportsLine against such person or entity. ETW understands and
agrees that SportsLine shall not be prevented or barred
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from retaining other persons or entities to provide services of the same nature
or similar nature as those described herein or of any nature whatsoever.
8. TERMINATION BY ETW. (a) ETW shall have the right to terminate this
Agreement immediately upon written notice to SportsLine if:
(i) SportsLine is adjudicated as insolvent or declares
bankruptcy;
(ii) SportsLine fails in any obligation for payments due ETW
pursuant to this Agreement, and within fifteen (15) days
following SportsLine's receipt of ETW's written notice of
such failure SportsLine has not rectified such failure; or
(iii) SportsLine breaches any other material term of this
Agreement, which breach SportsLine has failed to cure within
thirty (30) days after SportsLine's receipt of ETW's written
notice of such breach.
(b) TERMINATION BY SPORTSLINE. SportsLine shall have the right to
terminate this Agreement immediately upon written notice to ETW if ETW breaches
any material term of this Agreement, which breach ETW has failed to cure within
thirty (30) days after ETW's receipt of SportsLine's written notice of such
breach;
(c) EFFECT OF TERMINATION. As of the effective date of a termination by
SportsLine due to ETW's breach, ETW shall not be entitled to any further
remuneration hereunder, other than remuneration accrued or vested to such
effective termination date. Upon the expiration or termination of the Advisory
Period and this Agreement for any reason, all licenses and rights granted
hereunder shall immediately terminate.
9. COMPLIANCE WITH LAWS. Except as otherwise expressly provided herein,
each party agrees to comply with applicable federal, state and local laws in
connection with the development and display of the Woods Web Site and the
promotion and operation of the fan clubs. SportsLine will be solely responsible
to ensure that all aspects of the Service (other than the ETW Information, to
the extent not modified or revised by SportsLine), including the promotion
thereof, comply with applicable law.
10. CONFIDENTIALITY. All information disclosed by either party to the
other party, including but not limited to the terms and conditions of this
Agreement or any other agreement between the parties, trade secrets of the
party, any nonpublic information relating to any party's product plans, designs,
ideas, concepts, costs, prices, finances, marketing plans, business
opportunities, personnel, research, development or know-how and any other
nonpublic technical or business information of a party, that is marked
"Confidential" or identified by the disclosing party in writing as confidential
before or within thirty days after disclosure to the receiving party, will, upon
receipt of notice of confidentiality, be treated as confidential by the
receiving party and not disclosed to any third party without the disclosing
party's prior written consent. "Confidential Information" as referred to in this
Section does not include (a) information that is generally available to the
public other than as a result of disclosure in violation of this Agreement, (b)
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information already known or which becomes known to the receiving party from a
third party source which is not, to the receiving party's knowledge, under an
obligation of confidentiality, (c) information independently developed by the
receiving party (as shown by competent documentation), and (d) otherwise
confidential information that is required to be disclosed by law, including
administrative or judicial action. Any breach of these confidentiality
provisions will entitle the injured party to seek injunctive relief and damages
without the necessity of giving notice or posting bond or other security This
paragraph 10 shall survive any expiration or earlier termination of this
Agreement.
11. INDEMNIFICATION. (a) SPORTSLINE INDEMNIFICATION. SportsLine hereby
indemnifies and agrees to defend and hold ETW and Woods free and harmless from
and against all claims, costs, liabilities, judgments, expenses or damages
(including reasonable attorneys' fees) (collectively, "Damages") arising out of
or in connection with (i) Woods' activities and position as a member of
SportsLine's Advisory Board, (ii) any information, other than ETW Information
(to the extent not deleted, modified or revised by SportsLine), displayed on the
Service, (iii) any breach of any representation, warranty or covenant of
SportsLine hereunder, (iv) the promotion and operation of the Woods fan clubs,
or (v) any use of or reference to ETW's name or logo or Woods name or likeness
not expressly permitted hereunder or based upon SportsLine's use of any
intellectual property other than ETW's name or logo or Woods name or likeness;
except to the extent any such Damages arise from the gross negligence or willful
misconduct of ETW or its employees or Woods.
(b) ETW INDEMNIFICATION. ETW hereby indemnifies and agrees to defend
and hold SportsLine free and harmless from and against all Damages arising out
of or in connection with (i) any ETW Information displayed on the Service (to
the extent not deleted, modified or revised by SportsLine), (ii) any breach of
any representation, warranty or covenant of ETW hereunder, or (iii) any use of
or references to SportsLine's name or logos by ETW not expressly permitted
hereunder, except to the extent such Damages arise from the gross negligence or
willful misconduct of SportsLine or its employees.
(c) NO LIABILITY FOR PUNITIVE OR CONSEQUENTIAL DAMAGES. Notwithstanding
anything stated or implied to the contrary herein, in no event shall either
party be liable to the other for exemplary, punitive or consequential damages,
even if advised of the possibility of such damages, in any manner arising out to
this Agreement or the breach of any term, covenant, representation, warranty or
obligation contained herein.
(d) NOTIFICATION. Each party shall notify the other as soon as
reasonably possible of any claim of which it becomes aware.
(e) SURVIVAL. This paragraph 11 shall survive any expiration or earlier
termination of this Agreement.
12. BOOKS AND RECORDS. SportsLine shall keep true and complete books
and records in which all information necessary to determine and verify all fees
and payments contemplated hereunder shall be reflected along with the amounts
payable to ETW under the terms of this Agreement. SportsLine shall maintain such
books and records for a period of at least two years
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after the termination of this Agreement. During the term of this Agreement and
for a period of one year after such termination, ETW shall have the right, at
its expense and upon reasonable notice to SportsLine, to examine, or have
examined by its authorized representative, SportsLine's books and records, at
SportsLine's principal place of business, in order to determine or verify Net
Sponsorship Revenues or Net Premium Revenues amounts due, and the accuracy of
any reports furnished by SportsLine under this Agreement. In the event that an
error is discovered in the calculation of the amounts payable to ETW, the party
that received the benefit of the error shall promptly thereafter pay to the
other the amount of overpayment or underpayment, as the case may be. An
underpayment by SportsLine based on an error in such calculation shall not be
deemed to be a breach of this Agreement so long as the calculation was made in
good faith. If any underpayment by SportsLine for a period examined by ETW is
five percent (5%) or more, SportsLine shall pay ETW's reasonable out-of-pocket
costs with respect to such examination and the next subsequent reexamination.
ETW's receipt of any statement, or any payment, does not preclude it from
challenging the correctness of that statement or payment.
13. REMEDIES. (a) INJUNCTIVE RELIEF. In the event either party
materially breaches this Agreement, SportsLine and ETW agree that, in addition
to any and all other remedies available at law or in equity, the non-breaching
party shall be entitled to injunctive relief to the extent permitted by law from
further violation of this Agreement, before or during any proceeding as well as
on final determination thereof, without prejudice to any other right of either
party and without the necessity of giving notice or posting bond or other
security.
(b) ETW'S LIABILITY NOT TO EXCEED REMUNERATION PAID TO SPORTSLINE BY
ETW. Notwithstanding anything to the contrary herein, in the event SportsLine
incurs any expenses, damages or other liabilities (including, without
limitation, reasonable attorneys' fees) in connection with this Agreement or
ETW's services, other than with respect to third party claims against SportsLine
arising from ETW's negligence or misconduct or the ETW Information (to the
extent not deleted, modified or revised by SportsLine), ETW's liability to
SportsLine hereunder shall not exceed the remuneration, excluding reimbursement
of expenses, actually paid to SportsLine by ETW hereunder (with any remuneration
in the form of securities being valued at its fair market price on the date of
execution hereof). It is understood Woods is not a party hereto but is a
specific intended third party beneficiary hereo
14. INSURANCE. SportsLine shall provide and maintain, at its own
expense, commercial general liability insurance, including product liability and
advertising injury coverage, with limits of not less that Five Million Dollars
($5,000,000.00), shall cause such policy to be endorsed to state that Woods and
ETVV are additional named insureds thereunder. A certificate of insurance
evidencing such coverage shall be furnished to SportsLine within thirty (30)
days of the full execution of this Agreement. Such insurance policy shall
provide that the insurer shall not terminate or materially modify such policy or
remove ETW or Woods as additional named insureds without prior written notice to
ETW at least thirty (30) days in advance thereo
15. RELATIONSHIP OF THE PARTIES. The parties to this Agreement are
independent contractors, and this Agreement shall not be construed to create a
partnership, joint venture, employment or principal agent relationship between
the parties. It is understood that Woods is not a party to this Agreement and
has no liability whatsoever under this Agreement. Each party
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<PAGE>
shall be solely responsible to compensate any employees, agents or
representatives employed or engaged by it to perform duties under this Agreement
and for all taxes, imposts, duties and all charges of any governmental authority
arising from its activities under this Agreement. Neither SportsLine nor ETW,
nor any other person or entity employed by either SportsLine or ETW, are
authorized to make any warranty concerning the other party or incur or assume
any obligation or liability for the other party and nothing in this Agreement
gives or is intended to give any rights of any kind to any third party, except
as expressly set forth herein.
16. AMENDMENT: WAIVER. No amendment to this Agreement shall be valid
unless such amendment is in writing and is signed by both of the parties to this
Agreement. Any and all matters to be agreed upon by the parties shall be
evidenced by a writing signed by the parties. Any consent required of any party
hereunder must be in writing. Any of the terms and conditions of this Agreement
may be waived at any time in writing by the party entitled to the benefit
thereof, but a waiver in one instance shall not be deemed to constitute a waiver
in any other instance. A failure to enforce any provision of this Agreement
shall not operate as a waiver of the provision or of any other provision hereof.
17. SEVERABILITY. In the event that any provision of this Agreement
shall be held to be invalid, illegal or unenforceable in any circumstances, the
remaining provisions shall nevertheless remain in full force and effect and
shall be construed as if the unenforceable portion or portions were deleted.
18. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Florida.
19. ARBITRATION. Except as hereinabove provided in paragraph 13, the
parties agree to submit to arbitration any dispute related to this Agreement and
agree that the arbitration process shall be the exclusive means for resolving
disputes which the parties cannot resolve. Any arbitration hereunder shall be
conducted under the Dispute Resolution Rules of the American Arbitration
Association ("AAA") as modified herein. Arbitration proceedings shall take place
in Ft. Lauderdale, Florida, before a panel of at least three (3) arbitrators
each of whom shall be lawyers with experience in the area of intellectual
property law. All arbitration proceedings shall be confidential. Neither party
shall disclose any information about the evidence produced by the other party in
the arbitration proceedings, except in the course of judicial, regulatory, or
arbitration proceeding, or as may be demanded by government authority. Before
making any disclosure permitted by the preceding sentence, a party shall give
the other party reasonable advance written notice of the intended disclosure and
an opportunity to prevent disclosure. Each party shall have the right to take
the deposition of one individual and any expert witness retained by the other
party. Additional discovery may be had only where the arbitrator so orders, upon
a showing of substantial need. Only evidence that is directly relevant to the
issues may be obtained in discovery. Each party bears the burden of persuasion
of any claim or counterclaim raised by that party. The arbitration provisions of
this Agreement shall not prevent any party from obtaining injunctive relief from
a court of competent jurisdiction to enforce the obligations for which such
party may obtain provisional relief pending a decision on the merits by the
arbitrator. Each of the parties hereby consents to the jurisdiction of Florida
courts for such purpose. The arbitrator shall have authority to award any remedy
or relief that a court of the State of Florida could grant in
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<PAGE>
conformity to applicable law, except that the arbitrator shall have no authority
to award attorneys' fees or punitive damages. Any arbitration award shall be
accompanied by a written statement containing a summary of the issues in
controversy, a description of the award, and an explanation of the reasons for
the award. The arbitrator's award shall be final and judgment may be entered
upon such award by any court.
20. NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed to be given or made: on the same business day when
sent by confirmed facsimile, on the next business day after mailing when
delivered by overnight courier or on the fifth business day after mailing if
sent by first-class, registered or certified mail to the following address or
addresses or such other address or addresses as the parties may designate in
writing in accordance with this Section:
If to SportsLine: SportsLine USA, Inc.
6340 N.W. 5th Way
Fort Lauderdale, Florida 33309
Attention: President
Facsimile No. (954) 351-9175
If to ETW: ETW Corp.
c/o IMG
One Erieview Plaza, Suite 1300
Cleveland, Ohio 44114
Attention: Hughes Norton
Facsimile No. (216) 522-1145
With a copy to: Brody and Ober, P.C.
135 Rennell Dnve
P.O. Box 572
Southport, Connecticut 06490-0572
Attention: Seth Brody
Facsimile No. (203) 255-8572
21. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
Neither party may assign its rights or obligations hereunder without the prior
written consent of the other party, which consent may not be unreasonably
withheld or delayed; provided, however, that the duties of ETW hereunder may be
assigned or delegated by ETW to Woods. ETW hereby acknowledges that SportsLine's
ability to assign this Agreement in the event of a sale of all or substantially
all the assets of its business, may be a material factor in such transaction.
SportsLine hereby acknowledges that the identity and financial wherewithal of
the proposed assignee are material factors in the giving of any consent by ETW.
22. MISCELLANEOUS. (a) ETW agrees and acknowledges that all of Woods'
or ETW's respective employees, consultants and/or advisors and members of their
immediate families
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<PAGE>
(immediate family is defined a parent, sibling or any person residing in the
same household as employee or consultant) are not eligible to play SportsLine
contests for prizes.
(b) ETW and SportsLine each acknowledge that members of the IMG Group
of Companies have represented and assisted each of them in connection with this
Agreement and will be receiving compensation in connection therewith.
23. ENTIRE AGREEMENT. As of the effective date hereof, this Agreement
and the Exhibits attached hereto shall constitute the entire understanding
between ETW and SportsLine regarding the subject matter hereof, and cannot be
altered or modified except by an agreement in writing, signed by both parties.
Any previous agreements between the parties shall have no further force and
effect.
24. EXECUTION AND DELIVERY REQUIRED. This instrument shall not be
considered to be an agreement or contract nor shall it create any obligation
whatsoever on the part of ETW and SportsLine, or either of them, unless and
until it has been personally signed by representatives of ETW and SportsLine and
delivery has been made of a fully signed original. Acceptance of the offer made
herein is expressly limited to the terms of the offer.
25. EXECUTION IN COUNTERPARTS. This Agreement may be executed by the
parties in counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, each of the parties has executed this Advisory
Agreement as of the date first written above.
ETW CORP., a Florida corporation SPORTSLINE USA, INC., a Delaware
corporation
By /s/ EARL D. WOODS By /s/ MICHAEL LEVY
------------------------ -------------------------------
Name: Earl D. Woods Name: Michael Levy
Title: President Title: President
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT "A"
*****
THESE WARRANTS AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THESE
WARRANTS (THE "WARRANT SHARES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE SECURITIES LAWS.
THE WARRANT SHARES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE
SELLER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
______________, 1997
SPORTSLINE, USA, INC.
WARRANTS FOR THE PURCHASE OF SHARES OF COMMON STOCK
FOR VALUE RECEIVED SPORTSLINE USA, INC., a Delaware corporation
("SportsLine" or the "Company"), hereby certifies that the ETW Corp., a Florida
corporation, or its registered assigns (the "Holder") is entitled, subject to
the provisions contained herein, to purchase from the Company ***** fully paid
and non-assessable shares of Common Stock (as defined below), subject to
adjustment as provided herein, at an exercise price per share of Common Stock
(the "Exercise Price") of $****.
The term "Common Stock" means the Common Stock, par value $.01 per
share, of the Company as constituted on the date hereof. The number of shares of
Common Stock to be received upon the exercise of these Warrants may be adjusted
from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter referred to as "Warrant Stock." The term "Other Securities" means
any other securities that may be issued by the Company in addition to, or in
substitution for, the Warrant Stock.
References herein to the "Company" are to (i) SportsLine and any
successor thereto, (ii) any successor corporation resulting from the merger or
consolidation of SportsLine, or any successor thereto, with another corporation
or (ii) any corporation to which SportsLine, or any successor thereto, has
transferred its property or assets as an entirety or substantially as an
entirety.
<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of these Warrants, and (in the
case of loss, theft or destruction) of reasonably satisfactory indemnification,
and upon surrender and cancellation of these Warrants, if mutilated, the Company
shall execute and deliver new Warrants of like tenor and date. Any such new
Warrants, upon execution and delivery, shall constitute an additional
contractual obligation on the part of the Company, whether or not these Warrants
so lost, stolen, destroyed or mutilated shall be at any time enforceable by
anyone.
The Holder agrees with the Company that these Warrants are issued, and
all the rights hereunder shall be held subject to, all of the conditions,
limitations and provisions set forth herein, including the following:
1. EXERCISE OF WARRANTS.
1.1 EXERCISE PERIOD; METHOD OF EXERCISE. Subject to Section 1.2 hereof,
these Warrants shall vest and become exercisable in increments as follows:
(a) on and after the date hereof, ***** of the Warrants;
(b) on and after the first anniversary hereof, an additional
***** of the Warrants;
(c) on and after the second anniversary hereof, any or all remaining
Warrants;
provided, however, that the vesting of the Warrants shall be subject to the
condition that the Agreement dated as of ___________, 1997, between SportsLine
and the Holder, as amended or modified, shall be in effect at the relevant
vesting date(s), and no further Warrants shall vest on or after the expiration,
nonrenewal or termination of said agreement. Subject to the foregoing, any
vested Warrants may be exercised, in whole or in part, at any time, or from time
to time during the period commencing on the date hereof and expiring
____________, 2005, by presentation and surrender of these Warrants to the
Company at its principal office (which on the date hereof is 6340 N.W. 5th Way,
Ft. Lauderdale, Florida 33309), or at the office of its stock transfer agent
(which on the date hereof is the Company), if any, with the Warrant Exercise
Form attached hereto duly executed and accompanied by payment (either in cash or
by certified or official bank check or checks, payable to the order of the
Company) of the Exercise Price for the number of shares specified in such form.
If these Warrants are exercised in part only, the Company shall, upon surrender
of these Warrants for cancellation, execute and deliver new Warrants evidencing
the rights of the Holder thereof to purchase the balance of Warrant Stock (and
Other Securities) purchaseable hereunder. Upon receipt by the Company of these
Warrants, together with the Exercise Price, at its office, or by the Company's
stock transfer agent at its office, in proper form for exercise, the Holder
shall be deemed to be the holder of record of the Warrant Stock (and Other
Securities) issuable upon such exercise, notwithstanding that the transfer books
of the Company shall then be closed or that certificates representing such
Warrant Stock (or Other Securities shall not then be actually delivered to the
Holder. The Company shall pay any and all documentary stamp or similar issue or
transfer taxes
<PAGE>
payable in respect to the issue or delivery of Warrant Stock (and Other
Securities) upon exercise of these Warrants.
1.2 PERMITTED EXERCISE DATE. Notwithstanding anything to the contrary
herein, the Warrants shall not be exercisable, and the Holder agrees not to
exercise any of the Warrants, until the Permitted Exercise Date. For purposes
hereof, the term "Permitted Exercise Date" shall be the earlier of (i) thirty
(30) days prior to the closing of the first underwritten sale of Common Stock to
the public pursuant to a registration statement filed with, and declared
effective by, the Securities and Exchange Commission under the Securities Act of
1933, as amended, covering the offering and sale of Common Stock to the public,
or (ii) thirty (30) days prior to the closing of (a) the acquisition of all or
substantially all of the assets of the Company or (b) an acquisition of the
Company by another corporation or entity by consolidation, merger or other
reorganization in which the holders of the Company's outstanding voting stock
immediately prior to such transaction owned, immediately after such transaction,
securities representing less than fifty percent (50%) or more of the voting
power of the corporation or other entity surviving such transaction, (iii) May
5, 1997, or (iv) the first date after the date hereof on which the Company's
Board of Directors approves the grant to Company employees of options to
purchase Common Stock at a fair market value at or above $2.00 per share. The
Company will notify the Holder of the occurrence of the Permitted Exercise Date.
2. RESERVATION OF SHARES AND OTHER SECURITIES. The Company will at all
times reserve for issuance and delivery upon exercise of these Warrants all
shares of Warrant Stock and other shares of capital stock of the Company (and
Other Securities) from time to time receivable upon exercise of these Warrants.
All such shares (and Other Securities) shall be duly authorized and, when issued
upon such exercise, shall be validly issued, fully paid and non-assessable and
free and clear of all preemptive rights.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issuable upon the exercise of these Warrants, but the
Company shall pay the Holder an amount equal to the fair market value of such
fractional share in lieu of each fraction of a share otherwise issuable upon any
exercise of these Warrants, as determined by the Board of Directors in its
reasonable discretion.
4. EXCHANGE OF WARRANTS. These Warrants are exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereof to
the Company or at the office of its stock transfer agent, if any, for other
Warrants of different denominations, entitling the Holder hereof to purchase in
the aggregate the same number of shares of Warrant Stock (and Other Securities)
purchaseable hereunder.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights as a shareholder of the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed herein.
6. ANTI-DILUTION PROVISIONS.
<PAGE>
6.1 ADJUSTMENT FOR RECAPITALIZATION. If the Company shall at any time
subdivide its outstanding shares of Common Stock (or Other Securities at the tie
receivable upon the exercise of these Warrants) by recapitalization,
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stock to its shareholders, the number of
shares of Common Stock (or Other Securities) subject to these Warrants
immediately prior to such subdivision shall be proportionately increased and the
Exercise Price per share shall be proportionately decreased, and if the Company
shall at any time combine the outstanding shares of Common Stock (or Other
Securities) by recapitalization, reclassification or combination thereof, the
number of shares of Common Stock (or Other Securities) subject to these Warrants
immediately prior to such combination shall be proportionately decreased and the
Exercise Price per share shall be proportionately increased. Any such
adjustments pursuant to this Section 6.1 shall be effective at the close of
business on the effective date of such subdivision or combination or, if any
adjustment is the result of a stock dividend or distribution, then the effective
date for such adjustment shall be the record date therefor.
6.2 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. (a) In
case of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable upon the exercise of these
Warrants) after the date hereof or in case after such date the Company (or any
such other corporation) shall consolidate with or merge into another corporation
or convey all or substantially all of its assets to another corporation, then,
and in each such case, the Holder of these Warrants, upon the exercise hereof,
at any time after the consummation of such reorganization, consolidation, merger
or conveyance, shall be entitled to receive, in lieu of the securities and
property receivable upon the exercise of these Warrants prior to such
consummation, the securities or property to which such Holder would have been
entitled upon such consummation if such Holder had exercised these Warrants
immediately prior thereto (but had not exercised any rights with respect to such
securities or property in connection with the reorganization, consolidation,
merger or conveyance); in each such case, the terms of these Warrants shall be
applicable to the securities or property receivable upon the exercise of these
Warrants after such consummation.
(b) In any case where the Company shall consolidate with or merge into
another corporation, and shall not be the surviving corporation, or shall convey
all or substantially all of its assets to another corporation, then, and in each
such case, the surviving corporation or the corporation that shall have received
substantially all of the Company's assets shall expressly assume the obligations
of the Company under these Warrants in a form reasonably satisfactory to the
Holder hereof.
6.3 NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of these Warrants, but will at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder of these Warrants against impairment. Without limiting
the generality of the foregoing, while these Warrants are outstanding, the
Company (a) will not permit the par value, if any, of the shares of Warrant
Stock to be above the amount payable therefor upon such exercise and (b) will
<PAGE>
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue or sell fully paid and non-assessable
shares of Warrant Stock and Other Securities upon the exercise of these
Warrants.
6.4 CERTIFICATES AS TO ADJUSTMENTS. In each case of an adjustment in
the number of shares of Warrant Stock or Other Securities receivable upon the
exercise of these Warrants, the Company at its expense will promptly compute
such adjustment in accordance with the terms of these Warrants and prepare a
certificate executed by an executive officer of the Company setting forth such
adjustment and showing in detail the facts upon which such adjustment is based.
The Company will forthwith mail a copy of each such certificate to the Holder.
6.5 NOTICES OF RECORD DATE, ETC. In case:
(a) the Company shall take a record of the holders of its Common Stock
(or Other Securities at the time receivable upon the exercise of these Warrants)
for the purpose of entitling them to receive any dividend (other than a cash
dividend at the same rate as the rate of the last cash dividend theretofore
paid) or other distribution, or any rights to subscribe for, purchase or
otherwise acquire any share of stock of any class or any other securities, or to
receive any other right; or
(b) of any capital reorganization of the Company, any reclassification
of the capital stock of the Company, any consolidation or merger of the Company
with or into another corporation, or any conveyance of all or substantially all
of the assets of the Company to another corporation; or
(c) of any voluntary or involuntary dissolution, liquidation or winding
up of the Company;
then, and in each such case, the Company shall mail or cause to be mailed to
each Holder of a Warrant at the time outstanding a notice specifying, as the
case may be, (i) the date on which a record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up is to take place, and the time, if any,
to be fixed, as to which the holder of record of Warrant Stock (or such other
securities at the time receivable upon the exercise of these Warrants) shall be
entitled to exchange their shares of Warrant Stock (or such other securities)
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up. Such notice shall be mailed at least 20 days prior to the date
therein specified and these Warrants may be exercised prior to said date during
the term of these Warrants.
8. RESTRICTIONS ON TRANSFER OF WARRANTS, WARRANT STOCK AND OTHER
SECURITIES. The Warrant Stock and Other Securities may not be sold, transferred
or otherwise disposed of unless registered under the Securities Act of 1933 (the
"Securities Act") and any applicable state securities laws or pursuant to
available exemptions from such registration, provided that the seller delivers
to
<PAGE>
the Company an opinion of counsel satisfactory to the Company confirming the
availability of such exemption.
9. LEGEND. Unless the shares of Warrant Stock or Other Securities have
been registered under the Securities Act, upon exercise of any of these Warrants
and the issuance of any of the shares of Warrant Stock or Other Securities, all
certificates representing such securities shall bear on the face thereof
substantialy the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION,
PROVIDED THAT THE SELLER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY CONFIRMING THE AVAILABILITY OF SUCH
EXEMPTION. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR
THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
10. NOTICES. All notices required hereunder shall be in writing and
shal be deemed given when telegraphed, delivered personally or within two days
after mailing when mailed by certified or registered mail, return receipt
requested, to the Company at its principal office, or to the Holder at the
address set forth on the record books of the Company, or at such other address
of which the Company or the Holder has been advised by notice in writing
hereunder.
11. APPLICABLE LAW. These Warrants shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without giving effect to
conflicts of law principles.
IN WITNESS WHEREOF, the Company has caused these Warrants to be signed
on its behalf, in its corporate name, by its duly authorized officer, all as of
the day and year first above written.
SPORTSLINE USA, INC.
By:
-------------------------------------
Title: President
<PAGE>
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercrse Warrants to purchase
___________ shares of Common Stock of SportsLine USA, Inc., a Delaware
corporation and hereby makes payment of $___________ in full satisfaction
therefor.
----------------------------------------
Signature
----------------------------------------
Signature, if jointly held
----------------------------------------
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the Holder of the within Warrants)
Name____________________________________________________________________________
(Please typewrite or print in block letters)
Address_________________________________________________________________________
________________________________________________________________________________
Social Security or Taxpayer Identification Number_______________________________
<PAGE>
EXHIBIT "B"
____________________, 1997
SPORTSLINE USA, INC.
6340 N.W. 5th Way
Fort Lauderdale, Florida 33309
ROBERTSON, STEPHENS & COMPANY LLC
COWEN & COMPANY
MONTGOMERY SECURITIES
as Representatives of the
Several Underwriters
c/o Robertson, Stephens & Company LLC
555 California Street
San Francisco, California 94104
Ladies and Gentlemen:
The undersigned understands that Robertson, Stephens & Company LLC,
Cowen & Company and Montgomery Securities, as representatives (the
"Representatives") of the several underwriters (the "Underwriters"), proposed to
enter into an Underwriting Agreement (the "Underwriting Agreement") with
SportsLine USA, Inc. (the "Company"), providing for the initial public offering
by the Underwriters, including the Representatives, of common stock, $.01 par
value per share (the "Common Stock"), of the Company (the "Public Offering").
In consideration of the Underwriters' agreement to purchase and
undertake the Public Offering and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the undersigned agrees that, without
the prior written consent of Robertson, Stephens & Company LLC, the undersigned
will not directly or indirectly offer, sell, solicit an offer to buy, make any
short sale, pledge, grant any option to purchase, contract to sell, or otherwise
dispose of or transfer any shares of Common Stock of the Company (including,
without limitation, shares of Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission) or any securities
convertible into or exercisable or exchangeable for such Common Stock (including
shares of Common Stock which may be issued upon exercise of a stock option or
warrant) or, in any manner, transfer all or a portion of the economic
consequences associated with the ownership of the Common Stock (including,
without limitation, by way of equity swap, hedging, or any other form of
derivative transaction) (any of the foregoing, a "Transfer"), or exercise any
registration rights with respect to the Common Stock, in each case for the
period
<PAGE>
_________________, 1997
Page 2
ending 180 days from the date the Registration Statement (No. 333-25259) filed
by the Company in connection with the Public Offering is declared effective by
the Securities and Exchange Commission; provided, however, that the undersigned
may Transfer, including any Transfer as a bona fide gift, any such securities to
any person who, at or prior to the time of such Transfer, has executed and
delivered to the Representatives a letter agreement in the form hereof.
In addition, the undersigned agrees that the Company may, with respect
to any shares for which the undersigned is the record or beneficial holder,
cause the transfer agent for the Company to note stop transfer instructions with
respect to such shares on the transfer books and records of the Company.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this letter agreement, and that, upon
request, the undersigned will execute any additional documents necessary or
desirable in connection with the enforcement hereof. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned and all obligations of the undersigned created hereunder shall be
binding upon the heirs, personal representatives, successors, and assigns of the
undersigned. This letter agreement shall automatically terminate on the earlier
of (i) August 1, 1997, in the event that the Underwriting Agreement is not
executed by the Company or on prior to that date and (ii) the date that the
Underwriting Agreement is terminated, in the event that the Underwriters do not
purchase the Common Stock and the Underwriting Agreement is terminated pursuant
to its terms.
Very truly yours,
Dated:______________________ _________________________________
Name of Holder
_________________________________
Signature
Dated:______________________ _________________________________
Name of Joint Holder
_________________________________
Signature
EXHIBIT 10.16
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
CONFlDENTlAL
INTERACTIVE SERVICES AGREEMENT
This agreement (the "AGREEMENT"), effective as of July 1, 1997 (the
"Effective Date"), is made and entered into by and between America Online, Inc.
("AOL"), a Delaware corporation, with its principal offices at 22000 AOL Way,
Dulles, Virginia 20166, and SportsLine USA, Inc. ("INTERACTIVE CONTENT PROVIDER"
or "ICP"), a Delaware corporation, with its principal offices at 6340 N.W. 5th
Way, Fort Lauderdale, Florida 33309 (each a "PARTY" and collectively the
"PARTIES").
INTRODUCTION
The Parties desire to work together to provide AOL Members (as defined
below) with access to the Licensed Content (as defined below) through the AOL
Network (as defined below), subject to the terms and conditions set forth in
this Agreement. Defined terms used but not defined in the body of this Agreement
or in Exhibit C shall be as defined on Exhibit B attached hereto.
TERMS
1. DISTRIBUTION: PROGRAMMING
1.1 ANCHOR TENANCY. During the term, ICP shall receive anchor tenant
distribution within the AOL Brand Service, as follows: AOL shall:
(a) continuously and prominently place a mutually agreed upon ICP
logo, ***** as determined by ICP but subject to the guidelines set
forth in Exhibit "A-1" (provided that AOL shall have the right to
amend Exhibit A-1 in good faith to incorporate additional
reasonable guidelines) on the main Sports Channel screen (or any
specific successor thereof) on the AOL Brand Service (the "MAIN
SPORTS SCREEN"), with prominent placement to be mutually
agreed-upon, provided that ICP shall have a first right to choose
placement from the available options (such right to extend to any
subsequent substantial interface redesigns to the Main Sports
Screen made by AOL during the Term) and ***** during the Term;
(b) continuously include the Licensed Content (as defined in section
1.2 below) adjacent to attribution to ICP as the source of such
content *****; provided, however, that the inclusion of Licensed
Content with respect to any of the foregoing screens not launched
as of the Effective Date shall be applicable as of the date of
launch of such screen(s); and provided, further, that the Licensed
Content included in the screens specified in this Section l.l(b)
shall generally be Content drawn (as determined by AOL based on
the quality and relevance of such Content) from an area of the ICP
Interactive Site designated by ICP which shall contain the
Licensed Content, or, if not from such designated area, then such
other Licensed Content as determined by AOL in consultation with
ICP.
(c) program certain other Licensed Content on other appropriate
screens in the Sports Channel, as determined by AOL in its
discretion;
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
(d) provide ICP with the keywords "CBS SportsLine," "SportsLine" and
"Vegas Insider" which shall Link to the Template Forms (as defined
below in section 5.1);
(e) list ICP in **** on the AOL Brand Service (***** to be accessible
through keywords "Odds," "Sports Book," "Handicapping" and
"Lines"); and
(f) list ICP in AOL's "Directory of Services" and "Find" features.
Each area on an ICP Interactive Site linked from the AOL Network shall be
accessed by AOL Members through the Hybrid Browser (as defined below in
Section 5.1).
1.1.1 COMMUNITY PROGRAMMING; FANTASY GAMES. In addition to ICP's anchor
tenant distribution as provided in section 1.1 above, AOL shall
also include: (a) ***** provided that AOL shall provide carriage
over the Term of **** except to the extent not feasible as a result
of AOL's space and technical limitations, and shall contain Links
to the ICP Interactive Site via the Hybrid Browser); and (b) *****
area of the Sports Channel, provided that such carriage shall
commence on or about the launch of the ***** and shall, except as
otherwise mutually agreed upon, consist of prominent branded Links
to the appropriate pages of the ICP Interactive Site.
1.1.2 "ODDS" INFORMATION. AOL and ICP shall discuss in good faith the
provision by ICP of more detailed odds and analysis information to
enhance the content present on the "Sports Odds" screen including
ICP "pick packs".
1.1.3 CHANEES TO AOL SERUCE. AOL reserves the right to redesign or modify
the organization, structure, "look and feel," navigation and other
elements of the AOL Service. In the event such modifications
materially affect the placements for ICP described above, AOL will
work with ICP in good faith to provide ICP with a comparable
package of placements which are reasonably satisfactory to ICP
("MAKE-GOOD PLACEMENTS"). To the extent AOL is unable or refuses to
provide ICP with acceptable Make-Good Placements within a
reasonable period of time, ICP's sole remedy shall be ***** as
determined in ICP's sole discretion; provided; however, that, if
ICP elects *****.
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
1.2 LICENSED CONTENT. ICP Content shall consist solely of the Content
described on Exhibit "A" hereto (the "LICENSED CONTENT") which ICP shall
have the right to change from time to time, subject to the provisions of
this Agreement (including but not limited to this section 1.2). ICP shall
not authorize or permit any third party to distribute any other Content
of ICP through the AOL Network absent AOL's prior written approval.
Further, ICP agrees that it is and will remain primarily a provider of
sports-oriented content, and agrees that the Licensed Content shall not
include information that is not directly related to sports nor will the
features, functionality, or technology of the Licensed Content impose a
material adverse effect upon the technical operations of the AOL Network.
1.3 LICENSE. ICP hereby grants AOL a worldwide non-exclusive,
non-transferable, license to (a) use, market, store, distribute, display,
communicate, perform, transmit, and promote the Licensed Content (or any
portion thereof) through the AOL Network within such areas or features of
the AOL Network as expressly provided herein, and (b) integrate the
Licensed Content within the AOL Network by including links to ICP
Interactive Sites. Subject to such right and license, ICP retains all
right, title to and interest in the Licensed Content. Subject to the
first sentence of this section 1.3, the foregoing license is solely for
the purpose of permitting AOL to promote the Licensed Content on ICP's
Interactive Site in accordance with AOL's obligations hereunder, and
shall not be construed to grant a license to use, market, store,
distribute, display, communicate, perform, transmit, or promote the
Licensed Content generally or for any other purpose (including but not
limited to AOL branding of any Licensed Content). All uses of the
Licensed Content shall only be as expressly provided herein.
1.4 MANAGEMENT. ICP shall design, create, edit, manage, update, and maintain
the Licensed Content ("MANAGEMENT RESPONSIBILITIES"). AOL shall have no
Management Responsibilities of any kind with respect to any ICP
Interactive Site or any other Linked Interactive Site. ICP shall be
responsible for any hosting or communication costs associated with any
Linked Interactive Sites, except that AOL shall be responsible for the
costs associated with (i) any mutually agreed-upon direct connections
between the AOL Network and a Linked Interactive Site or (ii) any
mutually agreed upon mirrored version of a Linked Interactive Site. AOL
Members shall not be required to go through a registration process (or
any similar process) in order to access and use the non subscription or
non-premium areas of an ICP Interactive Site. In addition, ICP shall make
all of its existing premium services, including fantasy games,
commissioners, and utilities, available to AOL Members for purchase at a
10% discount off ICP's ordinary retail price.
1.5 CARRIAGE FEE. ICP shall pay AOL a carriage fee of ***** as follows:
1.5.1 BASE CARRIAGE FEE. ICP shall pay AOL ***** over the term, payable
in equal monthly installments on the 15th day of each month
beginning with July 15, 1997; and
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
1.5.2 IN-KIND PROGRAMMING AND PROMOTION. ICP shall provide AOL with the
equivalent of ***** made up of the in-kind commitments specified in
the agreement between AOL, ICP and CBS, Inc., attached hereto as
Exhibit E (the "ICP IN-KIND COMMITMENTS"). Without limiting any
other rights or remedies available to AOL, AOL's anchor tenant and
impressions commitments specified in Sections 1.1 and 1.6 herein
are and will be contingent upon provision of the ICP In-Kind
Commitments in accordance with Exhibit E.
1.6 IMPRESSIONS GUARANTEE. AOL shall provide ICP with at least *****
Impressions from ICP's Presence on the AOL Network hereunder (the
"Impressions Guarantee") as follows: (a) a minimum of ***** Impressions
shall be generated from ***** as specified in Section l.l(a); (b) a
minimum of ***** Impressions shall be generated from ***** as specified
in Sections l.l(b)-(c); and (c) ***** Impressions as specified in
section 2.6 below. For the purposes of this Agreement, the term
"Presence" means any ICP trademark or logo, Licensed Content, headline,
picture, story, teaser, icon, link or any other Content or service which
originates from, describes or promotes ICP or ICP's Licensed Content,
provided that only screens that contain a Link to ICP's Interactive Site
or a Welcome Mat (as defined below) via the Hybrid Browser will count
against the Impressions Guarantee. The Term shall be extended without
any additional Carriage Fees or other additional consideration of any
kind whatsoever payable by ICP until the Impressions Guarantee is met,
provided that in any event the Impressions Guarantee shall be met within
***** after the Effe,ctive Date.
2. PROMOTION
2.1 COOPERATION. Each Party shall cooperate with and reasonably assist the
other Party in supplying material for marketing and promotional
activities.
2.2 INTERACTIVE SITE. ICP shall include the following promotions within each
ICP Interactive Site during the Term: (i) a continuous promotional
button for AOL appearing "above the fold" on the first screen of such
site; (ii) a Link to a location of AOL's choosing where users can obtain
promotional information about AOL products and services and/or download
or order AOL's the-current version of the AOL client software (for which
ICP shall earn bounties for New Members as specified on Exhibit F);
and (iii) include mutually agreed upon promotional banners describing
AOL as a preferred access provider in such a way as to encourage
download of AOL clients software (for which ICP shall earn bounties for
New Members as specified on Exhibit F) utilizing unsold inventory on
the "Top News" and "Scoreboard" sections within ICP's Microsoft "Active
Desktop" and Netscape "Netcaster" channels.
2.3 KEYWORD. When ICP makes promotional reference to an ICP Interactive Site
in any off line (e.g., not Internet or online) media, *****, which
includes a listing of the
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
applicable "URL(s)" for such site (each a "WEB REFERENCE"), ICP shall
include a favorable mention, in an agreed-upon form, of the applicable
AOL "keyword" of comparable prominence to the Web Reference.
2.4 DIRECT MARKETING. In addition to the promotion described in section 2.2
above, the Parties agree to execute the New Member acquisition program
described on Exhibit F and for which ICP shall earn bounties as
described in Exhibit F, and such other New Member acquisition programs
as the parties may mutually agree upon.
2.5 ONLINE PROMOTIONS. During the Term AOL shall (a) include *****
(except that any obligation to ***** shall be subject to any contractual
commitments of AOL), and (b) provide ICP with at least ***** In
addition, AOL shall link from the Template Forms and the Hybrid Browser
(both as defined below in Section 5.1) to the merchandise area on the
main ICP Interactive Site and other mutually agreed upon areas of the
Interactive Site. AOL shall use commercially reasonable efforts to
include ICP in *****
3. REPORTING. On no less than a monthly basis, each Party shall supply or make
available to the other Party reports containing the following information:
3.1 USAGE AND OTHER DATA. AOL shall make available to ICP a monthly report
with respect to ICP's presence on the AOL Network hereunder specifying
for the prior month (a) the number of Impressions generated within the
AOL Network, and (b) ***** In addition to the number of Impressions, to
the extent AOL makes commercially available to any third parties *****,
AOL shall provide to ICP a monthly report of the ***** with respect to
ICP's presence on the AOL Network.
For each Linked ICP Interactive Site, ICP will supply AOL with monthly
reports which reflect total impressions by AOL Members to the Linked ICP
Interactive Site during the prior month, total impressions by all users
to the Linked ICP Interactive Site during the prior month and any
transactions involving AOL Members at the ICP Interactive Site during
the period in question, in a detailed format reasonably requested by
AOL.
3.2 PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a monthly report, in
the form attached hereto as Exhibit G, documenting its compliance with
any promotional commitments it has undertaken as required hereunder.
3.3 PAYMENT SCHEDULE. Except as otherwise specified herein, each Party
agrees to pay the other Party all amounts received and owed to such
other Party as described herein on a monthly basis within thirty (30)
days of the end of the month in which such amounts were collected by
such Party. Each such payment shall be accompanied by a statement
showing in reasonable detail how such payment was computed.
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
3.4 SURVIVAL. This section 3 shall survive any expiration or earlier
termination of this Agreement.
4. ADVERTISING AND MERCHANDISING
4.1 ADVERTISING. AOL owns all right, title and interest in and to the
advertising and promotional spaces within the AOL Network. The specific
advertising inventory within any such AOL forms or pages shall be as
reasonably determined by AOL.
4.2 AOL PROGRAMMING ADVERTISEMENTS. With respect to any exclusive to AOL or
differentiated (e.g., from programming available outside of the AOL
Network) online programming, any Template Forms (as specified in Section
5.1) or the Hybrid Browser (as specified in Section 5.1) (collectively,
the "AOL PROGRAMMING"), AOL shall grant ICP the ***** promotions,
advertisements, links, pointers or similar services or rights in or
through the area for any AOL Programming ("AOL PROGRAMMING
ADVERTISEMENTS") subject to (i) AOL's approval (it being understood that
such policies shall not apply to ICP Interactive Sites or any portion
thereof other than Welcome Mats), and (ii) the ***** shall be shared by
the Parties as follows: (a) ICP shall retain ***** of all ***** (the
"*****"); and (b) ICP shall pay AOL ***** . Additionally, when AOL makes
its ad server technology generally available to third parties, AOL shall
make such technology available for use by ICP with respect to the AOL
Programming Advertisements on AOL's then-standards terms and conditions.
4.3 WELCOME MAT ADVERTISEMENTS. With respect to any Welcome Mat(s) (as
defined in Section 5.5.3.1), ICP shall retain the ***** promotions,
advertisements, links, pointers or similar services or rights in or
through the Welcome Mats ("WELCOME MAT ADVERTISEMENTS"), subject to (a)
AOL's approval for each Welcome Mat Advertisement (it being understood
that such policies shall not apply to ICP Interactive Sites or any
portion thereof other than Welcome Mats) and (b) the *****. ICP shall
pay AOL ***** with respect to Welcome Mat Advertisements.
4.4 ADVERTISING POLICIES. Any AOL Programming Advertisements or Welcome Mat
Advertisements (collectively, "AOL ADVERTISEMENTS") sold by ICP or its
agents shall be subject to AOL's then-standard advertising policies as
disclosed in advance to ICP; it being understood that such policies
shall not apply to ICP Interactive Sites or any portion thereof other
than Welcome Mats.
4.5 ADVERTISING REGISTRATION FORM. In connection with the sale by ICP of any
AOL Advertisement, ICP shall, in each instance, provide AOL with a
completed standard AOL "Advertising registration form" relating to such
AOL Advertisement and reasonably acceptable to ICP. ICP shall use all
reasonable steps to comply with all federal, state and local laws and
regulations applicable to any AOL Advertisements sold by ICP.
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
4.6 ADVERTISING PACKAGES. To the extent a Party sells an AOL Advertisement
as part of an advertising package including multiple placement locations
(e.g., both the AOL Programming area or Welcome Mat and another area or
site), such Party shall allocate the payment for such advertising
package between or among such locations in an equitable fashion, subject
to the Advertising Minimum.
4.7 INTERACTIVE COMMERCE.
4.7.1 Transaction Revenues derived from the sale or license of the
following Products sold within the AOL Network (e.g., non-Web
based transactions) and/or as a direct result of AOL promotions
shall be split as follows:
<TABLE>
<S> <C>
i) General Merchandise *** Net Transaction Revenues to ICP, *** to
AOL
ii) Fantasy Games *** Net Transaction Revenues to ICP, *** to
AOL
iii) Memorabilia *** Net Transaction Revenues to ICP, ** to
AOL
iv) Electronic Merchandise *** Gross Transaction Revenues to ICP, ***
(e.g., electronic greeting to AOL
cards)
</TABLE>
4.7.2 Any merchandising activity hereunder shall be subject to (i) the
terms of this Agreement, and (ii) the requirements posted at
keyword "Marketplace Policy" on the America On'ine Brand Service
(or such other keyword as AOL may designate during the Term).
5. PRODUCTION AND SUPPORT: CUSTOMIZATION OF SITES
5.1 FORMS. AOL shall provide to ICP *****: (a) a series of mutually agreed
upon Rainman template forms (initial series due by July 1st, the balance
due August 15th) for the presentation of the Licensed Content to AOL
Members, which forms shall include a mutually agreed upon format and
style and links to the relevant ICP Interactive Site as well as one
advertising slot (collectively, the "TEMPLATE FORMS"); (b) a mutually
agreed upon web browser format through which the ICP Interactive Site
will be accessed, such browser also to include one advertising slot (the
"HYBRID BROWSER").
5.2 PRODUCTION WORK. In the event that ICP requests any AOL production
assistance, ICP shall work with AOL to develop detailed production plans
for the requested production assistance (the "PRODUCTION PLAN").
Following receipt of the final Production Plan, AOL shall notify ICP of
(i) AOL's availability to perform the requested production work, (ii)
except with respect to Welcome Mats, the proposed fee or fee structure
for the requested production and maintenance work, and (iii) the
estimated development schedule for such work. To the extent the Parties
reach agreement regarding implementation of an agreed-upon Production
Plan, such agreement shall be reflected in a separate work order signed
by the Parties. To the extent ICP elects to retain a third
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
party provider to perform any such production work, work produced
by such third party provider must generally conform to AOL's
production Standards & Practices (a copy of which will be
supplied by AOL to ICP upon request). The specific production
resources which AOL allocates to any production work to be
performed on behalf of ICP shall be as determined by AOL in its
sole discretion, but in all events shall be sufficient to timely
perform all work agreed upon.
5.3 PUBLISHING TOOLS. AOL shall determine, in its sole discretion,
which of its proprietary publishing tools (each, a "Tool") shall
be made available to ICP to develop and implement any AOL
Programnung or Welcome Mat(s) during the Term. ICP shall be
granted a nonexclusive license to use any such Tool, which
license shall be subject to: (i) ICP's compliance with all rules
and regulations relating to use of the Tools, as published from
time to time by AOL, (ii) AOL's right to withdraw or modify such
license at any time, provided any such withdrawal or modification
does not have a material adverse effect upon ICP, and (iii) ICP's
express recognition that AOL provides all Tools on an "as is"
basis, without warranties of any kind.
5.4 TRAINING AND SUPPORT. AOL shall provide ICP with *****. ICP
shall be responsible to pay the fees associated with such ***** . In
addition, ICP will pay travel and lodging costs associated with its
participation in any AOL training programs (including AOL's reasonable
and necessary travel and lodging costs, subject to ICP's prior written
approval, when training is requested by and conducted at ICP's offices).
5.5 CUSTOMIZATION OF SITES.
5.5.1 PERFORMANCE. ICP shall optimize the ICP Interactive Site for
distribution as provided hereunder to ensure that the
functionality of and features within the ICP Interactive Site
support (i) *****, and (ii) HITP 1.0 or later protocol. ICP
shall allow appropriate AOL personnel to have access to any
Linked ICP Interactive Sites for the purposes of reviewing such
sites to coordinate with ICP to determine the most efficient
method for optimization of the sites for distribution hereunder.
5.5.2 TEMPLATE FORMS AND HYBRID BROWSER. Each area on ICP Interactive
Sites linked from the AOL Network shall be accessed by AOL
Members through the Hybrid Browser.
5.5.3 CUSTOMIZATION. ICP shall customize the ICP Interactive Sites for
AOL Members as follows:
5.5.3.1 WELCOME MATS. AOL may, *****, require ICP to publish on
ICP's servers a special AOL Welcome Mat home page and
separate AOL Welcome Mat home pages for NFL, NBA, MLB,
NHL, NCAA Football and Basketball areas on ICP
Interactive Sites
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
exclusively for AOL Members, ***** (as compared to ICP
hosting such page or site itself) for such page or site.
The Welcome Mat pages shall be customized versions of the
applicable pages of ICP Interactive Sites, and shall be
used to provide AOL members with a faster and more
reliable experience. Any Content on the Welcome Mats will
be identical to the relevant ICP Interactive Sites except
that certain third-party links will be customized in
order to minimize the loss of traffic outside of the AOL
Network and assume compliance with AOL advertising
guidelines.
5.5.3.2. CUSTOMIZATION. The Template Forms, Hybrid Browser and
Welcome Mats shall not contain advertisements, promotions
or links for any entity reasonably construed to be in
competition with AOL. or otherwise be in conflict with
AOL advertising policies or exclusivities. In addition,
ICP shall take reasonable steps to capture traffic within
ICP Interactive Sites. To the extent that AOL notifies
ICP in writing that, in AOL's reasonable judgment, Links
from such sites cause an excessive amount of traffic to
be diverted outside of such sites in a manner that has a
detrimental effect on the traffic flow of the AOL
audience, AOL reserves the right, after providing ICP
with a reasonable opportunity to cure, to terminate this
Agreement; provided, however, that if AOL elects to
terminate this Agreement, ICP shall only be responsible
for payment of Carriage Fees through the date of
termination.
6. TERM AND TERMINATION.
6.1. TERM. Unless earlier terminated as set forth herein, the initial term of
this Agreement shall be fourteen (14) months from the Effective Date
(the "TERM") (subject to the Impressions Guarantee being met as set
forth in Paragraph 1.6), provided that for two (2) years after
expiration of the Term, AOL shall continue to have the option to Link to
any ICP Interactive Sites. This Agreement may be extended by mutual
written agreement of the Parties.
6.2 TERMINATION FOR BREACH. Either Party may terminate this Agreement at any
time in the event of a material breach by the other Party which remains
uncured after thirty (30) days written notice thereof.
6.3 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may terminate this
Agreement immediately following written notice to the other Party if the
other Party (i) ceases to do business in the normal course, (ii) becomes
or is declared insolvent or bankrupt, (iii) is the subject of any
proceeding related to its liquidation or insolvency (whether voluntary
or involuntary), other than a reorganization under Chapter 11 of the
Bankruptcy Code, which is not dismissed within ninety (90) calendar
days, or (iv) makes an assignment for the benefit of creditors.
7. PUBLIC DISCLOSURE. ICP shall provide AOL with the prior opportunity, subject
to any applicable law or regulation, to review and provide comments on any
description of this Agreement in any documents for public or private
financing of ICP. AOL must approve any information or description regarding
this Agreement that is disclosed to any third party as part of a "road show"
or other public or private financing by ICP, provided such approval shall not
be
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<PAGE>
unreasonably withheld. Except as may be required by applicable law,
regulation, or court order, or rules or regulations of any securities
exchange, the prior written approval of the other Party, which shall not be
unreasonably withheld or delayed, shall be required for any other disclosure
of the existence of this Agreement or the terms hereof, provided, however
that if this Agreement or any of its terms must be disclosed under any law,
rule or regulation, ICP shall redact mutually agreed upon portions of this
Agreement (including at a minimum the Anchor Tenancy, Impressions Guarantee,
Carriage Fee and Promotion) to the fullest extent permitted under applicable
laws, rules and regulations and ICP will submit a request to be mutually
agreed upon by ICP and AOL that such portions and other provisions of this
Agreement receive confidential treatment under the rules and regulations of
the Securities and Exchange Commission or otherwise be held in the strictest
confidence to the fullest extent permitted under the laws, rules or
regulations of any other applicable governing body. Except as expressly
provided in this Section 7.1, each Party agrees to keep confidential the
terms of this Agreement other than in connection with confidential
disclosures on a need to know basis to employees, consultants, counsel,
accountants and other professional advisers of the Party or its affiliates.
Each Party shall use its best efforts to cause any third parties that may
come into possession of any confidential information to maintain the
confidentiality of such information. This section shall survive any
expiration or earlier termination of this Agreement.
8. TERMS AND CONDITIONS. The legal terms and conditions set forth on Exhibit C
attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. SPORTSLINE USA, INC.
By: /s/ DAVID M. COHEN By: /s/ MICHAEL LEVY
------------------------ ------------------------
Print Name: Print Name: Michael Levy
Title: Title: President
Date: Date: 10-17-97
Tax ID/EIN#: Tax ID/EIN#
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<PAGE>
EXHIBIT A
DESCRIPTION OF LICENSED CONTENT
A. Content from CBS SportsLine web site to be included within the designated
area of ICP Interactive Site shall include: Sports-related content including
all content published within the sportsline.com and vegasinsider.com domains,
including Top News, Scores, MLB, NBA, NFL, NHL, Golf, Tennis, Auto Racing,
Soccer, NCAA Football and Basketball, and other covered sports, as well as
all sports-related content from all other web sites published by ICP under
its own brand name including:
1) Daily poll
2) Two sports columns available per day
3) At least 10 news stories available per day based upon SportsLine's "daily
budget" meeting to be included within AOL's Top Stories Area
4) Season Preview Packages for -- Baseball, Pro Football, Pro & College
Football, Pro & College Basketball, Hockey
5) The CBS SportsLine 112 - NCAA Football poll 6) The CBS SportsLine NFL
Power Chart - ranking NFL teams available each week
7) Face-to-Face - a statistical player vs. player match-up available 3 times
each week.
8) Week in Review Packages for big college games being broadcast on CBS.
B. Feature Programming- ICP will provide the following:
Two "slide shows" available per week (including NFL, NBA, NHL, MLB, Golf and
Tennis as well as NCAA Football and Basketball "slide shows" during the
respective seasons) which AOL will promote on the main sports screen as
appropriate to fit into AOL Sports' programming discretion.
C. Original Programming -- ICP shall provide the following:
A mini site within ICP's Interactive Site including the following
non-exclusive Content from the 1998 Winter Olympics: (i) a daily news and
notes from Nagano column; and (ii) an "Inside the Truck Feature from the CBS
perspective (three times a week) and the following exclusive Content from the
1998 Winter Olympics: (i) a daily exclusive column from each of Ray Buck and
Mike Lurie; (ii) a daily exclusive audio interview; (iii) 2 slide shows per
week; (iv) on chat per week on AOL (top athlete or CBS personality) and (v) a
"Road to the Olympics Package" including a weekly column and slide show for
the eight (8) weeks leading up to the Nagano Olympic Games. AOL will
incorporate ICP as a key part of the AOL Brand Service 1998 Olympic coverage.
AOL will produce a AOL/ICP co-branded Template Form where AOL will promote
the foregoing Nagano Olympic Games Content provided by ICP.
To the extent that AOL engages in a reasonably consistent pattern of not
promoting the specific Programming described in this Exhibit A, ICP shall have
the right to designate other reasonable categories of Licensed Content.
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EXHIBIT A-1
ICP promotional copy cannot include superlatives such as "greatest", "best",
"ultimate", "top", "hottest" and "coolest" when referring to the ICP Interactive
Sites and the Licensed Content being promoted. With respect to the use of the
words "exclusive", "only on" and similar phrases, such terms can only be used to
the extent the Licensed Content being promoted is exclusive to ICP (e.g. with
respect to its athletes etc.).
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT B -- DEFlNITIONS
ADVERTISING REVENUES. Aggregate amounts collected plus the fair market value of
any other compensation received (such as barter advertising) by ICP or its
agents, as the case may be, arising from the license or sale of AOL
Advertisements, less applicable Advertising Sales Commissions; provided that, in
order to ensure that AOL receives fair value in connection with AOL
Advertisements, ICP shall be deemed to have received no less than the
Advertising Minimum in instances when ICP makes an AOL Advertisement available
to a third party at a cost below the Advertising Minimum.
*****. Except as otherwise agreed by AOL and ICP, (i) ***** or (ii) such
different rate or rates as AOL may establish based upon market conditions and
publish during the Term.
ADVERTISING SALES COMMISSION. In the case of an AOL Advertisement, actual
amounts paid as commissions to third party agencies in connection with sale of
the AOL Advertisement.
AOL BRAND SERVICE. The U.S. version of the America Online brand service
(excluding Digital city, AOL.com, NetFind or any similar "sub" service that may
be distributed by or through the American Online Brand Service).
AFFILIATE. Any agent, distributor or franchisee of AOL, or an entity in which
AOL holds at least a nineteen percent (19%) equity interest.
AOL LOOK AND FEEL. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) within the
AOL Network and the total appearance and impression substantially formed by the
combination, coordination and interaction of these elements.
AOL MEMBER(S). Authorized users of the AOL Network, including any sub-accounts
using the AOL Network under an authorized master account.
AOL NETWORK. (i) The America Online/registered trademark/ Brand Service, (ii)
any international versions of the America Online service through which AOL or
its affiliates elect to offer the Licensed Content and (iii) any other product
or service owned, operated, distributed or authorized to be distributed by or
through AOL or its Affiliates worldwide through which such party elects to offer
the Licensed content (which may include, without limitation, Internet sites
promoting AOL products and services and any "offline" information browsing
products of AOL or its Affiliates).
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of the Agreement, which, is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information product and business plans, projections
and marketing data. Confidential Information shall not include information that:
(a) is now or subsequently becomes generally available to the public through no
fault or breach on the part of the receiving party; (b) the receiving party
candemonstrate to have had lawfully in its possession without an obligation of
confidentiality prior to disclosure hereunder; (c) is independently developed by
the receiving party without the use of any Confidential Information of the
disclosing party as evidenced by written documentation; or (d) the receiving
party lawfully obtains from a third party who has the right to transfer or
disclose it and who provides it without any obligation to maintain the
confidentiality of such information.
CONTENT. Information, materials, features, products, services, advertisements,
promotions, links, pointers, technology and software.
ICP INTERACTIVE SITE. Any interactive site or area which is managed, maintained
or owned by ICP or its agents or to which ICP provides and/or licenses
information, content or other materials,including, by way of example and without
limitation, (i) an ICP site on the World Wide Web portion of the Internet or
(ii) a channel or area delivered through a "push" product such as the Pointcast
Network or interactive environment such as Microsoft's "Active Desktop."
IMPRESSION. An AOL Member's viewingof any screen on the AOL Network containing
ICP's Presence, provided, however, that at least one such Presence on a screen
links to an ICP Interactive Site or a ICP-customized Welcome Mat via the Hybrid
Browser.
LINK. The mechanism by which a user at one World Wide Web site can automatically
move to another World Wide Web site and other sites on the Internet or by which
an AOL Member can move from a site on the AOL Network to a site on the World
Wide Web or another site on the AOL Network.
LINKED INTERACTIVE SITE. Any site or area outside of the AOL Network which is
linked to the AOL Network (through a "pointer" or similarl link) in accordance
with the terms and conditions of this Agreement.
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
LINKED ICP INTERACTIVE SITE. An ICP Interactive Site which is also a Linked
Interactive Site.
NEW MEMBER. Any person or entity (a) who registers for the AOL Network using
ICP's special promotion identifier and (b) from whom AOL or an Affiliate of AOL
collects *****.
GROSS TRANSACTION REVENUES. Aggregate amounts paid in connection with the sale,
licensing, distribution or provision by ICP of any products, services or goods
in or through the AOL Programming areas or Welcome Mats.
NET TRANSACTION REVENUES. Aggregate amounts paid in connection with the sale,
licensing, distribution or provision by ICP of any products, services or goods
in or through the AOL Programming areas or Welcome Mats, excluding, in each
case, amounts collected for sales or use taxes, duties, handling, shipping and
similar charges, credits for returned goods or services, and other mutually
agreed upon direct out of pocket expense attributable to the generation of such
revenues (but not excluding cost of goods sold or any similar costs).
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EXHIBIT C
STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
AOL TERMS OF SERVICE; UNSPECIFIED CONTENT. AOL shall have the right to remove,
or direct ICP to remove any Content which, as reasonably determined by AOL (i)
violates AOL's then-standard Terms of Service (as set forth on the America
Online/registered trademark/ brand service), the terms of this Agreement or any
other standard, written AOL policy; or (ii) subject to section 1.2, is not
specifically described on Exhibit A.
COMPLIANCE WITH AOL POLICIES. In the event that AOL notifies ICP in wroting that
any portion of the Licensed Content or any advertising or promotional content
associated with any Linked ICP Interactive Site is in violation of this
provision, then ICP shall use commercially reasonable efforts to block access by
AOL Members to such Licensed Content or advertising using ICP's then-available
ad server or other technology. In the event that ICP cannot block access by AOL
Members to the Licensed Content or advertising in question, then ICP shall
provide AOL prompt written notice of such fact. AOL may then, at its option,
either (i) restrict access from the AOL Network to the Licensed Content or
advertising in question using technology available to AOL or (ii) terminate the
Link from the AOL Network to the Linked ICP Interactive Site until such time as
the Licensed Content or advertising in question is no longer displayed. ICP will
cooperate with AOL's reasonable requests to the extent AOL elects to implement
any such access restrictions. ICP warrants that the Online Area and any Linked
ICP Interactive Sites: (i) will conform to AOL's applicable Terms of Service;
(ii) will not infringe on or violate any copyright, trademark, U.S. patent or
any other third party right; and (iii) will not contain any Content which
violates any applicable law or regulation.
CONTESTS. ICP represents that any contest, sweepstakes or similar promotion
conducted or promoted through any Linked ICP Interactive Site (a "Contest") will
comply with all applicable federal, state and local laws and regulations.
AOL LOOK AND FEEL. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the AOL pages, Template form and the Hybrid
Browser (the "AOL FRAMES"). AOL may, at its discretion, incorporate navigational
icons, links and pointers or other Content into such AOL Frames.
OPERATIONS. AOL shall be entitled to require reasonable changes to Licensed
Content to the extent such Licensed Content will adversely affect operations of
the AOL Network.
RESPONSE TO QUESTIONS/COMMENTS; CUSTOMER SERVICE. ICP shall respond promptly and
professionally to questions, comments, complaints and other reasonable requests
regarding the Licensed Content by AOL Members or on request by AOL, and shall
cooperate and assist AOL in promptly answering the same.
CLASSIFIEDS. To the extent ICP desires to implement any classifieds listing
features on or through the AOL Network, ICP shall obtain AOL's prior written
approval. Such approval may be conditioned upon, among other things, ICP's
conformance with any then-applicable service-wide technical or other standards
related to online classifieds.
STATEMENTS TO THIRD PARTIES. ICP shall not make, publlish, or otherwise
communicate, or cause to be made, published, or otherwise communicated, any
deleterious remarks whatsoever to any third parties concerning AOL or its
affiliates, directors, officers, employees or agents, including without
limitation, AOL's business projects, business capabilities, performance of
duties and services or financial position.
II. TRADEMARKS.
TRADEMARK LICENSE. In designing and implementing any marketing, advertising,
press releases or other promotional materials related to this Agreement and/or
referencing the other Party and/or its trade names, trademarks and service marks
(the "Promotional Materials") and subject to the other provisions contained
herein, ICP shall be entitled to use the following trade names, trademarks and
service marks of AOL; the "American Online/registered trademark/" brand service,
"AOL/trademark/" service/software and AOL's triangle logo; and AOL and its
Affiliates shall be entitled to use the trade names, trademarks and service
marks of ICP as designated by ICP (collectively, together with the AOL marks
listed above, the "Marks"); provided that each Party: (i) does not create a
unitary composite mark involving a Mark of the other Party without the prior
written approval of such other Party, and (ii) displays symbols and notices
clearly and sufficiently indicating the trademark status and ownership of the
other Party's Marks in accordance with applicable trademark law and practice.
RIGHTS. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
QUALITY STANDARDS. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
aplicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
PROMOTIONAL MATERIALS/PRESS RELEASES. Each Party will submit to the other Party,
for its prior written approval, which shall not be unreasonably withheld or
delayed, any Promotional Materials; provided, however, that either Part's use of
screen shots of any AOL Programming Area or Welcome Mat for promotional purposes
shall not require the approval of the other Party so long as the AOL Network is
clearly identified as the source of such screen shots. Once approved, the
Promotional Materials may be used by a Party and its affiliates for the purpose
of such promotion therein and reused for such purpose until such approval is
withdrawn with reasonable prior notice. In the event such approval is withdrawn,
existing inventories of Promotional Materials may be depleted.
INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Part's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infrongement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infrongement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) such Party's
Promotional Materials will neither infringe on any copyright, U.S. patent or any
other third party right nor violate any applicable law or regulation and (v)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to
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the subject matter hereof which are not expressly provided for in this
Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it shall
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the Term and for a period of
three (3) years following expiration or termination of this Agreement, to
prevent the duplication or disclosure of Confidential Information of the other
Party, other than by or to its employees or agents who must have access to such
Confidential Information to perform such Party's obligations hereunder, who
shall each agree to comply with this Section of this Agreement.
V. RELATIONSHIP WITH AOL MEMBERS
SOLICITATION OF SUBSCRIBERS. Subject to the next sentence, during the Term and
for the two-year period following the expiration or termination of this
Agreement, neither ICP nor its agents will use e-mail on the AOL Network, nor
use the Template Forms, Welcome Mats, Hybrid Browsers or other area or service
accessible only by AOL Members to (i) solicit or participate in the solicitation
of AOL Members when that solicitation is for the benefit of any entity
(including ICP) which could reasonably be construed to be or become in
competition with AOL, or (ii) promote any services which could reasonably be
construed to be in competition with services available through AOL including,
but not limited to, services available through the Internet (e.g., an ICP
Interactive Site). ICP may not send any AOL Member e-mail communications on or
through the AOL Network without a "Business Relationship." For purposes of this
Agreement, a "Business Relationship" shall mean that the AOL Member has either
(i) purchased Products from ICP through the AOL Network or (ii) voluntarily
provided information to ICP through a contest, registration, or other
communication, which included clear and conspicuous notice to the AOL Member
that the information provided by the AOL Member could result in an e-mail being
sent to that AOL Member by ICP or its agents. A Business Relationship does not
exist by virtue of an AOL Member's visit to a Game Site (absent the additional
elements described above).
COLLECTION OF MEMBER INFORMATION. ICP is prohibited from collecting AOL Member
screen names from public or private areas of the AOL Network ( it is understood
that any information collected on any ICP Interactive Site shall not constitute
information requested on the AOL Network regardless of whether such ICP
Interactive Site is linked from the AOL Network), except as specifically
provided below. ICP shall ensure that any survey, questionnaire or other means
of collecting Member Information on any area of the AOL Network including,
without limitation, requests directed to specific AOL Member screen names and
automated methods of collecting screen ames (an "Information Request") complies
with (i) all applicable laws and regulations, (ii) AOL's applicable Terms of
Service, and (iii) any privacy policies which have been issued by AOL in writing
during the Term (the "AOL Privacy Policies"). Each Information Request shall
clearly and conspicuously specify to the AOL Members at issue the purpose for
which Member Information collected through the Information Request shall be used
(the "Specified Purpose").
USE OF MEMBER INFORMATION. ICP shall restrict use of the Member Information
collected through an Information Request to the Specified Purpose. In no event
shall ICP (i) provide AOL Member names, screen names, addresses or other
identifying information ("Member Information") to any third party (except to the
extent specifically (a) permitted under the AOL Privacy Policies or (b)
authorized by the AOL Members in question) or (ii) otherwise use any Member
Information in contravention of the above section regarding "Solicitation of
Members."
VI. TREATMENT OF CLAIMS
LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM THE USE OF OR INABILITY TO USE THE AOL NETWORK OR ANY OTHER
PROVISION OF THE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE AGGREGATE AMOUNTS EARNED BY
SUCH PARTY UNDER THIS AGREEMENT AS OF THE DATE OF THE APPLICABLE CLAIM.
NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
REGARDING THE AOL NETWORK, ICP INTERACTIVE SITES OR ANY AOL PUBLISHING TOOLS,
INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY
DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITYOF THE AOL NETWORK.
INDEMNITY. Each Party agrees to indemnify, defend and hold the other Party
harmless from and against all claims, costs, liabilities, judgments, expenses or
damages (including reasonable attorneys' fees and court costs) arising from or
related to any cause of action brought against the other Party by any person or
entity that is not a party to this Agreement resulting from any material breach
of any obligation, duty, representation or warranty of this Agreement,provided
the other Party promptly notifies indemnifying Party of any such claim and
provides such Party the opportunity to control the defense of the action and al
negotiations for settlement or compromise.
ACKNOWLEDGMENT. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH NOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY, AND SHALL BE ENFORCEABLE INDEPENDENT OF
AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS
AGREEMENT.
VII. MISCELLANEOUS
AUDITING RIGHTS. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of three (3)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each Party shall have the right, at its expense,
to direct an independent certified public accounting firm subject to strict
confidentiality restrictions to conduct a reasonable and necessary copying and
inspection of portions of the Records of the other Party which are directly
related to amounts paable to the Party requesting the audit pursuant to this
Agreement. Any such audit may be conducted during regular business hours after
twenty (20) business days prior written notice, subject to the following; (a)
such audits shall not be made more frequently thanonce every twelve months, and
(b) no such audit of AOL shall occur during the period beginning on June 1 and
ending October 1 and no such audit of ICP shall occur during the period
beginning on December 1 and March 31. In lieu of providing access to its Records
as described above, a Party shall be entitled to provide the other Party with a
report from an independent certified public accounting firm confirming the
information to be derived from such Records.
EXCUSE. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
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contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shallhave any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable tosuch a relationship upon
either Party.
NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be givenin writing and shall be
effective for all purposes (i) on the delivery date if delivered personally to
the Party to whom the same is directed; (iii) upon delivery by a commercial
overnight carrier, with written verification of receipt (or written verification
of refusal of delivery), or (iv) upon receipt (or, if refused, upon date of
refusal with written verification of refusal) by U.S. certified or
registeredmail, return receipt requested, postage and charges prepaid, or any
other means of rapid mail delivery for which a receipt is available, to the
person(s) specified below at the address of the Party set forth in the first
paragraph of this Agreement.
NO WAIVER. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
RETURN OF INFORMATION. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential information,
documents, manuals and other materials belonging to the other Party.
SURVIVAL. In addition to such other provisions as are designated elsewhere in
this Agreement, Sections III, IV, V, VI, and VII of this Exhibit C, shall
survive the completion, expiration, termination or cancellation of this
Agreement.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
AMENDMENT. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
FURTHER ASSURANCES. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
ASSIGNMENT. ICP shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL.
Notwithstanding the foregoing, ICP shall have the right to assign this Agreement
without AOL's consent and without prior notice in connection with a merger,
consolidation, or sale of all or substantially all of ICP's assets; provided
that any such assignee (i) has the resources necessary to fully and completely
perform all of ICP's obligations hereunder and (ii) is not reasonably construed
to be a competitor of AOL (i.e.,entities that offer online or Internet
connectivity (or any successor form of connectivity) and entities that are
broad-based aggregators and distributors of third party interactive content
and/or services). Subject to the foregoing, this Agreement shall be fully
bindingupon, inure to the benefit of and be enforceable by the Parties hereto
and their respective successors and assigns.
CONSTRUCTION; SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be c onstrued or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
REMEDIES. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative andin addition to, and not in lieu of,
any other rights or remedies which the Party may possess at law or in equity.
APPLICABLE LAW; JURISDICTION. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles. Each Party irrevocably
consents to the non-exclusive jurisdiction of the courts of the Commonwealth of
Virginia and the federal courts situated in the Commonwealth of Virginia, in
connection with any action to enforce the provisions of this Agreement, to
recover damages or other relief for breach or default under this Agreement, or
otherwise arising under or by reason of this Agreement.
EXPORT CONTROLS. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
HEADINGS. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
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Exhibit D
[NOT APPLICABLE]
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT E
ICP IN-KIND COMMITMENTS
ADDENDUM TO AGREEMENT
This Addendum to Agreement (this "ADDENDUM") is made and entered into
as of October 16, 1997 (the "Effective Date"), by and among AMERICA ONLINE INC.
("AOL"), SPORTSLINE USA, INC. ("SportsLine"), and CBS, INC., ("CBS") and
provides as follows:
1. CBS PROGRAMMING AND PROMOTION. Pursuant to Section 1.5.2 of that certain
agreement between AOL and SportsLine dated July 1, 1997 (the "Agreement"),
SportsLine agreed to provide AOL with the equivalent of ***** . The parties
hereby agree that SportsLine's obligation to provide the foregoing programming
and promotion shall be fully satisfied by the following on-air promotion of the
SportsLine/AOL "keyword" (i.e., "SportsLine") in connection with CBS Sports
broadcasts of sports events over the CBS Television Network (as defined in the
Agreement) (each promotion specified below, an "ON-AIR PROMOTION"):
a) ***** The scheduling for such On-Air Promotions will be made on a
rotational basis, with the understanding that CBS will use
reasonable efforts to target the highest rated CBS sports
programming and that approximately 60% of the promotions specified
in this Section I (a) shall be Drop-lns;
b) ***** provided that: (a) the promotions specified in this Section
l(b) shall occur, on average over the *****, during the *****
programming; and (b) at least ***** specified in this Section 1 (b)
shall be Drop-lns; and
c) *****
CBS shall consult on a weekly basis with SportsLine and AOL concerning
the content, design and copy for the On-Air Promotions, provided that CBS will
have final approval with respect thereto, except that AOL shall have final
approval over all uses of any AOL names, trade names or trademarks. The copy
will contain either an audio or graphic reference to the CBS SportsLine keyword
and/or CBS SportsLine area on AOL and also include at a minimum a reference to
"America Online" and/or "AOL" and the relevant CBS SportsLine keyword on AOL.
For example, "Check the latest scores . . . etc., on America Online at Keyword:
CBS SportsLine."
Notwithstanding anything contained herein to the contrary, CBS shall
have no obligation to include any On- Air Promotion in any particular program
if, despite CBS's reasonable efforts, current or future contractual obligations
prevent or restrict CBS from doing so, provided that CBS agrees to offer AOL a
reasonably equivalent On-Air Promotion as a substitute for any such lost On-Air
Promotion. AOL acknowledges that CBSis contractually prohibited from making any
On-Air Promotion within the CBS Sports broadcast of the Masters Golf Tournament.
2. ***** CBS will work with AOL to establish a schedule on or before December
31, 1997, that ensures that ***** CBS and AOL will work in good faith to
construct ***** and other reasonable and customary requirements.
3. ENTIRE AGREEMENT. This Addendum represents the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
and/or contemporaneous agreements and understandings, written or oral between
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or among the parties with respect to the subject matter hereof; provided,
however, that this Addendum shall be attached to and is hereby incorporated by
reference into the Agreement.
4. ASSIGNMENT. This Addendum shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns: provided, however, that
the duties of each party hereunder shall not be assignable nor delegable without
the prior written approval of the other parties hereto, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, the parties hereto may
make such assignment or delegation without the other parties' consent (but with
prior written notice) in connection with a consolidation, merger, or sale of all
or substantially all of such party's assets, so long as any proposed assignee
(i) has the assets and resources required to fully and completely perform all of
such party's obligations under the Agreement and (ii) is not reasonably
construed to be a competitor of AOL i.e., entities that offer online or Internet
connectivity (or any successor form of connectivity) and entities that are
broad-based aggregators and distributors of third party interactive content
and/or services.
5. COUNTERPARTS. This Addendum may be executed by facsimile and in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one agreement.
6. WAIVER; AMENDMENT. No waiver or amendment of any provision of this Addendum
shall be effective unless it is in writing and signed by the authorized
representatives of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as
of the date first written above:
AMERICA ONLINE, INC.
By: /S/ DAVID M. COHEN
-----------------------------
Print Name:
Title:
SPORTSLINE USA, INC.
By: /s/ MICHAEL LEVY
----------------------------
Name: Michael Levy
Title: President
CBS, Inc.
By: /s/ [illegible]
-----------------------------
Name:
Title:
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT F
NEW MEMBER ACQUISITION PROGRAMS
A. Download button on ICP Interactive Site as provided in section 2.2 --
bounties shall be *****.
B. AOL will create co-branded AOL diskette and/or CD-ROM packages for
agreed-upon CBS SportsLine, CBS Sports and Vegas Insider distribution and
mailings, and such distribution or mailings may also include certain existing
and future ICP marketing partners (e.g., The Orange Bowl, The NFL Players
Association and mutually agreed upon Super Star athletes (e.g. Shaquille
O'Neal, Michael Jordan, Wayne Gretzky, Cal Ripken, Jerry Rice etc.)).
C. AOL shall pay bounties to ICP on account of AOL New Members generated from
the co-branded promotion as described in sub-section B above, at the
following rates:: *****
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<PAGE>
EXHIBIT G
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS AND EXCLUSIVITY
Pursuant to Section 2 of the Interactive Services Agreement between (~`ICPl')
and America Online, Inc. ("AOL"), dated as of , 1997 (the "Agreement"), the
following report is delivered to AOL for the month ending (the "Month"):
I. PROMOTIONAL COMMITMENTS
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Month:
TYPE OF DATE(S) OF DURATION/CIRCULATION OF RELEVANT
PROMOTION PROMOTION PROMOTION CONTRACT SECTION
1.
2.
3.
IN WITNESS WHEREOF, this Certificate has been executed this ________ day of
_____________, 199_.
____________________________________
By:_________________________________
Print Name:_________________________
Title:______________________________
Date:_______________________________
-21-
CONFIDENTIAL
