SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One) [x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period March 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 0-23337
SPORTSLINE.COM, INC.
(Exact name of Registrant as specified in its charter)
Delaware 65-0470894
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6340 N.W. 5th Way
Fort Lauderdale, Florida 33309
(Address of principal executive offices) (Zip Code)
(954) 351-2120
(Registrant's telephone number, including area code)
None
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. YES [X] NO [ ]
Number of shares of common stock outstanding as of April 30, 2000:
26,369,369
Page 1 of 16 Pages
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
INDEX TO FINANCIAL STATEMENTS
PAGE
----
<S> <C>
Condensed Consolidated Balance Sheets (unaudited) as of March 31, 2000 and December 31, 1999........................ 3
Condensed Consolidated Statements of Operations (unaudited)
for the three months ended March 31, 2000 and 1999.............................................................. 4
Condensed Consolidated Statements of Changes in Shareholders' Equity (unaudited)
for the three months ended March 31, 2000....................................................................... 5
Condensed Consolidated Statements of Cash Flows (unaudited)
for the three months ended March 31, 2000 and 1999.............................................................. 6
Notes to Condensed Consolidated Financial Statements (unaudited).................................................... 7
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
SPORTSLINE.COM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(amounts in thousands except share data)
(UNAUDITED)
March 31, December 31,
2000 1999
---- ----
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents ......................................... $ 95,820 $ 45,968
Marketable securities ............................................. 49,381 24,953
Deferred advertising and content costs ........................... 19,530 19,530
Accounts receivable ............................................... 18,093 11,875
Prepaid expenses and other current assets ......................... 13,512 14,657
--------- ---------
Total current assets .......................................... 196,336 116,983
RESTRICTED CASH EQUIVALENTS .......................................... 489 489
NONCURRENT MARKETABLE SECURITIES ..................................... 27,630 50,052
INVESTMENT IN MVP.COM, INC ........................................... 100,000 --
LICENSING RIGHTS ..................................................... 3,967 4,533
NONCURRENT DEFERRED ADVERTISING - AOL ................................ 2,454 3,682
NONCURRENT DEFERRED ADVERTISING AND CONTENT - CBS .................... 24,394 28,716
PROPERTY AND EQUIPMENT, net .......................................... 15,091 10,351
GOODWILL, net ........................................................ 37,945 42,823
OTHER ASSETS ......................................................... 25,626 13,832
--------- ---------
$433,932 $271,461
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable .................................................. $ 3,474 $ 3,296
Accrued liabilities ............................................... 16,680 12,128
Current portion of capital lease obligations ...................... 100 170
Current portion of deferred revenue ............................... 32,715 4,160
--------- ---------
Total current liabilities .................................... 52,969 19,754
DEFERRED REVENUE ..................................................... 70,472 --
CONVERTIBLE SUBORDINATED NOTES ....................................... 19,608 19,608
--------- ---------
Total liabilities ............................................ 143,049 39,362
--------- ---------
MINORITY INTEREST .................................................... 59,463 7,443
--------- ---------
COMMITMENTS AND CONTINGENCIES (Note 3)
SHAREHOLDERS' EQUITY:
Preferred stock, $0.01 par value, 1,000,000 shares authorized, none
issued and outstanding as of March 31, 2000 and December 31,
1999........................................................... -- --
Common stock, $0.01 par value, 200,000,000 shares authorized,
26,084,982 and 25,358,488 issued and outstanding as of
March 31, 2000 and December 31, 1999, respectively ........... 261 254
Additional paid-in capital ........................................ 349,161 333,879
Cumulative translation adjustment ................................. (1,322) 7
Accumulated deficit ............................................... (116,680) (109,484)
--------- ---------
Total shareholders' equity .................................... 231,420 224,656
--------- ---------
$433,932 $271,461
========= =========
</TABLE>
The accompanying notes to condensed consolidated financial statements
are an integral part of these condensed consolidated balance sheets.
3
<PAGE>
<TABLE>
<CAPTION>
SPORTSLINE.COM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(amounts in thousands except share and per share data)
(UNAUDITED)
Three Months Ended
March 31,
---------
2000 1999
---- ----
<S> <C> <C>
REVENUE ....................................... $ 22,678 $ 11,057
COST OF REVENUE ............................... 8,654 5,383
------------ ------------
GROSS MARGIN .................................. 14,024 5,674
------------ ------------
OPERATING EXPENSES:
Product development ......................... 441 357
Sales and marketing ......................... 12,050 6,786
General and administrative .................. 9,612 3,861
Depreciation and amortization ............... 10,250 5,844
------------ ------------
Total operating expenses .......... 32,353 16,848
------------ ------------
LOSS FROM OPERATIONS .......................... (18,329) (11,174)
INTEREST EXPENSE .............................. (289) (186)
INTEREST AND OTHER INCOME, net ................ 3,608 1,232
GAIN ON SALE OF SUBSIDIARIES .................. 7,814 --
------------ ------------
NET LOSS ...................................... $ (7,196) (10,128)
============ ============
NET LOSS PER SHARE - BASIC AND DILUTED......... $ (0.28) $ (0.47)
============ ============
WEIGHTED AVERAGE COMMON AND COMMON
EQUIVALENT SHARES OUTSTANDING-
BASIC AND DILUTED............................ 25,713,275 21,694,499
============ ============
</TABLE>
The accompanying notes to condensed consolidated financial statements
are an integral part of these condensed consolidated statements.
4
<PAGE>
<TABLE>
<CAPTION>
SPORTSLINE.COM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
(amount in thousands except share data)
(UNAUDITED)
Accumulated
Additional Other
Common Stock Paid-In Comprehensive Accumulated Comprehensive
Shares Amount Capital Income(Loss) Deficit Loss
------ ------ ------- ------------ ------- ----
<S> <C> <C> <C> <C> <C> <C>
Balances at December 31, 1999 ................ 25,358,488 $ 254 $ 333,879 $ 7 (109,484)
Noncash issuance of common stock and
options pursuant to sale of
subsidiaries............................ 28,439 -- 2,299 -- --
Exercise of CBS warrants ................. 500,000 5 11,495 -- --
Net proceeds from exercise of warrants ... 57,000 1 364 -- --
Issuance of common stock from exercise ... 141,055 1 1,124 -- --
of employee options
Comprehensive loss:
Net loss ............................... -- -- -- (7,196) $ (7,196)
Cumulative translation adjustment ....... (1,329) -- (1,329)
---------- --------- ------------ ---------- ------------ ------------
Comprehensive loss ...................... $ (8,525)
---------- --------- ------------ ---------- ------------ ============
Balances at March 31, 2000 ................... 26,084,982 $ 261 $ 349,161 $ (1,322) $ (116,680)
========== ========= ============ ========== ============
</TABLE>
The accompanying notes to condensed consolidated financial statements
are an integral part of these condensed consolidated statements.
5
<PAGE>
<TABLE>
<CAPTION>
SPORTSLINE.COM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(amount in thousands)
(UNAUDITED)
Three Months Ended
March 31,
---------
2000 1999
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss ........................................................................... $ (7,196) $ (10,128)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization .................................................. 10,250 5,844
Provision for doubtful accounts ................................................ 862 51
Minority interest in consolidated subsidiaries ................................. (306) --
Gain on sale of subsidiaries ................................................... (7,814) --
Changes in operating assets and liabilities:
Accounts receivable ........................................................ (7,269) (2,054)
Prepaid expenses and other current assets .................................. 650 (1,497)
Accounts payable ........................................................... 2,529 (616)
Accrued liabilities ........................................................ 2,563 1,358
Deferred revenue ........................................................... 1,273 (250)
--------- ---------
Net cash used in operating activities ....................................... (4,458) (7,292)
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of marketable securities, net ............................................. (2,005) (10,151)
Purchases of property and equipment ................................................ (7,730) (1,721)
Acquisition of businesses .......................................................... (11) --
--------- ---------
Net cash used in investing activities ....................................... (9,746) (11,872)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of common stock and exercise of common
stock warrants and options ...................................................... 12,990 2,517
Proceeds from issuance of preferred stock of
subsidiary........................................................................ 52,500 --
Proceeds from issuance of convertible subordinated notes, net of costs ............. -- 145,443
Repayment of capital lease obligations and long term borrowings .................... (70) (64)
--------- ---------
Net cash provided by financing activities ................................... 65,330 147,896
--------- ---------
Effect of exchange rate changes on cash ............................................ (1,364) --
Net increase in cash and cash equivalents .............................................. 49,852 128,732
CASH AND CASH EQUIVALENTS, beginning of period ......................................... 45,968 31,684
--------- ---------
CASH AND CASH EQUIVALENTS, end of period ............................................... $ 95,820 $ 160,416
--------- ---------
SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
Noncash portion of sale of subsidiaries ............................................ $ 2,991 $ --
========= =========
Noncash minority investments in businesses ......................................... $ 3,297 $ --
========= =========
Noncash issuance of common stock and common stock warrants pursuant to CBS
agreement......................................................................... $ -- $ 59,688
========= =========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest ............................................................. $ 4 $ 19
========= =========
</TABLE>
The accompanying notes to condensed consolidated financial statements
are an integral part of these condensed consolidated statements.
6
<PAGE>
SPORTSLINE.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands except share and per share data)
(1) NATURE OF OPERATIONS:
SportsLine.com, Inc. ("SportsLine.com" or the "Company"), formerly
known as SportsLine USA, Inc., was incorporated on February 23, 1994 and began
recognizing revenue from its operations in September 1995. The Company is at the
leading edge of media companies, providing Internet sports content, community
and e-commerce on a global basis. SportsLine.com's content includes more than
one million pages of multimedia sports information, entertainment and
merchandise. In addition, Sports.com Limited ("Sports.com"), a majority owned
subsidiary of SportsLine.com launched its first site, football.sports.com, in
August 1999 followed in September by rugby.sports.com and france.sports.com.
Sports.com now covers all major sports in Europe and produces additional country
specific local language sites for Germany, Italy and Spain. The Company's
flagship Internet sports service (www.sportsline.com ) was renamed CBS
SportsLine in March 1997 as part of an exclusive promotional and content
agreement with CBS Corporation ("CBS"). SportsLine.com produces the official
league Web sites for Major League Baseball, the PGA TOUR and NFL Europe League,
and serves as the primary sports content provider for America Online, Netscape
and Excite.
The Company distributes a broad range of up-to-date news, scores,
player and team statistics and standings, photos and audio and video clips
obtained from CBS and other leading sports news organizations and the Company's
superstar athletes; offers instant odds and picks; produces and distributes
entertaining, interactive and original programming such as editorials and
analyses from its in-house staff and freelance journalists; produces and offers
contests, games, and fantasy league products; and sells sports-related
merchandise and memorabilia.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements
include the accounts of SportsLine.com and its wholly and majority owned
subsidiaries.
The Company acquired International Golf Outlet, Inc. in June 1998 and
TennisDirect.com, Inc. in August 1999, and accounted for these transactions
using the purchase method of accounting. The purchases resulted in goodwill of
$3,180. Such goodwill was being amortized over an estimated life of ten years.
In May 1999, the Company acquired Golf Club Trader, Inc. The purchase was
accounted for using the pooling-of-interests method of accounting. As of January
2000, the aforementioned companies were sold to MVP.com, Inc. ("MVP") in
exchange for an equity interest in MVP. In addition, the Company entered into a
10-year strategic e-commerce and marketing agreement with MVP pursuant to which
MVP will operate the Company's domestic e-commerce business. These transactions
with MVP resulted in the Company receiving an investment in MVP totaling
$100,000. Such investment was initially recorded at estimated value and will be
periodically reviewed for any impairment. The sale resulted in a one-time gain
of $7,814 related to the assets of the above companies.
The Company acquired another business during 1999 and accounted for the
transaction using the purchase method of accounting. The purchase resulted in
goodwill of $3,726, which is being amortized over an estimated life of seven
years. This business was sold in April 2000 resulting in a gain of approximately
$ 994.
Sports.com was formed in May 1999. In May 1999, Sports.com purchased
Sportsweb which was accounted for using the purchase method of accounting, which
resulted in goodwill of $2,420 which is being amortized over five years. In June
1999, Sports.com acquired the sports division of Infosis Group. The Company also
accounted for this transaction using the purchase method of accounting resulting
in goodwill of $2,526 which is being amortized over five years. A liability of
$59,463 has been reflected in the Company's consolidated balance sheet as of
March 31, 2000 to reflect the minority interest in Sports.com not owned by the
Company.
The Company acquired Daedalus Worldwide, Inc. in December 1999. The
transaction was accounted for using the purchase method of accounting. The
purchase resulted in goodwill of $31,880, which is being amortized over an
estimated life of seven years.
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with accounting principles generally accepted
in the United States for interim financial information and with the instructions
to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include
all of the information and footnotes required by accounting principles generally
accepted in the United States for complete financial statements. In the opinion
of management, all adjustments, consisting only of normal recurring accruals
considered necessary for a fair presentation, have been included in the
accompanying
7
<PAGE>
SPORTSLINE.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS--(CONTINUED) (amounts in thousands
except share and per share data)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:--(Continued)
unaudited financial statements. All significant intercompany transactions and
balances have been eliminated in consolidation. Operating results for the three
months ended March 31, 2000 are not necessarily indicative of the results that
may be expected for any subsequent quarter or the full year ending December 31,
2000. For further information, refer to the consolidated financial statements
and notes thereto, included in the Company's Annual Report on Form 10-K/A for
the fiscal year ended December 31, 1999.
Per Share Amounts
Net loss per share is computed using the weighted average number of
common and dilutive common equivalent shares outstanding during the period.
Common equivalent shares consist of the incremental common shares issuable upon
conversion of all convertible preferred stock (using the if-converted method)
and shares issuable upon exercise of stock options and warrants (using the
treasury stock method). There were 7,712,178 and 7,101,156 options and warrants
outstanding at March 31, 2000 and 1999, respectively, that could potentially
dilute earnings per share in the future. Such options and warrants were not
included in the computation of diluted net loss per share because to do so would
have been antidilutive for all periods presented.
Revenue by Type
Revenue by type for the three months ended March 31, 2000 and 1999 is
as follows:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------
2000 1999
---- ----
<S> <C> <C>
Advertising........................................................... $18,876 $ 5,888
E-commerce............................................................ 28 2,221
Membership and premium services....................................... 1,213 1,340
Content licensing and other........................................... 2,561 1,608
------- -------
$22,678 $11,057
======= =======
</TABLE>
Barter transactions, in which the Company received advertising or other
services or goods in exchange for content or advertising on its Web sites,
accounted for approximately 14% and 18% of total revenue for the three months
ended March 31, 2000 and 1999, respectively.
Recent Accounting Pronouncements
The Company adopted SFAS No. 130, "Reporting Comprehensive Income,"
during the year ended December 31, 1998. SFAS No. 130 establishes standards for
the reporting and display of comprehensive income (loss) and its components in a
full set of financial statements. The objective of SFAS No. 130 is to report
comprehensive income (loss), a measure of all changes in equity of an enterprise
that result from transactions and other economic events in a period, other than
transactions with owners. The Company has elected to disclose comprehensive
income (loss) in the consolidated statements of stockholders' equity.
In June 1999, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 137, "Accounting for Derivative Instruments and Hedging
Activities-Deferral of FASB Statement No. 133." SFAS No. 137 defers for one year
the effective date of SFAS No. 133, "Accounting for Derivative Instruments and
Hedging Activities". SFAS No. 133 will now apply to all fiscal quarters of all
fiscal years beginning after June 15, 2000. SFAS No. 133 will require the
Company to recognize all derivatives on the balance sheet as either assets or
liabilities measured at fair value. Derivatives that are not hedges must be
adjusted to fair value through income. The Company will adopt SFAS No. 133
effective January 1, 2001. The Company believes that the adoption of SFAS No.
133 will not have a material impact on its consolidated financial statements, as
it has entered into no derivative contracts and has no current plans to do so in
the future.
The Company adopted SOP 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use" effective January 1, 1999. SOP
98-1 establishes criteria for determining which costs of developing or obtaining
internal-use computer
8
<PAGE>
SPORTSLINE.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(amounts in thousands except share and per share data)
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:--(Continued)
software should be charged to expense and which should be capitalized. Such
adoption did not have a material effect on the Company's consolidated financial
position or results of operations.
In December 1999, the Securities and Exchange Commission ("SEC") issued
Staff Accounting Bulletin No. 101 ("SAB 101"), "Revenue Recognition in Financial
Statements." SAB 101 summarizes certain of the SEC's views in applying generally
accepted accounting principles to revenue recognition in financial statements.
In March 2000, the SEC issued SAB No. 101A to defer for one quarter the
effective date of implementation of SAB No. 101 with earlier application
encouraged. The Company is required to adopt SAB 101 in the second quarter of
fiscal 2000. The Company does not expect the adoption of SAB 101 to have a
material effect on its financial position or results of operations.
Segment Reporting
The Company adopted SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information" for the year ended December 31, 1998. SFAS
No. 131 establishes standards for the way public business enterprises report
information about operating segments in annual financial statements and requires
those enterprises to report selected information about operating segments in
interim financial reports issued to stockholders.
Beginning in the third quarter of 1999, the Company began operating in
two segments. The following information is disclosed, per SFAS No. 131, based on
the method management uses to organize financial information for making
operating decisions and assessing performance. The Company currently has two
major lines of businesses that share the same infrastructure: United States and
Europe.
A summary of the segment financial information is as follows:
<TABLE>
<CAPTION>
Three months ended
March 31, 2000
------------------
<S> <C>
Total revenue:
United States $ 21,167
Europe 1,511
---------
$ 22,678
=========
Loss from operations:
United States $ (11,759)
Europe (6,570)
---------
$ (18,329)
=========
Interest income, net:
United States $ 1,826
Europe 1,493
---------
$ 3,319
=========
Gain on sale of subsidiaries:
United States $ 7,814
Europe --
---------
$ 7,814
=========
Net loss:
United States $ (2,119)
Europe (5,077)
---------
$ (7,196)
=========
Total assets as of March 31, 2000:
United States $ 374,156
Europe 59,776
---------
$ 433,932
=========
</TABLE>
9
<PAGE>
SPORTSLINE.COM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS--(CONTINUED) (amounts in thousands
except share and per share data)
(3) COMMITMENTS AND CONTINGENCIES:
On December 28, 1999, an action entitled Fantasy Sports Properties,
Inc. v. SportsLine.com, Inc., Yahoo! Inc., ESPN, Inc. and Sandbox Entertainment,
Inc., was commenced against the Company and the named co-defendants in the
United States District Court for the Eastern District of Virginia. The plaintiff
seeks damages and injunctive relief for the alleged infringement by the Company
and the named co-defendants of a patent entitled "Computerized Statistical
Football Game," issued by the United States Patent and Trademark Office, which
is allegedly owned by the plaintiff. The Company in its Answer, Affirmative
Defenses and Counterclaim has taken the position that it has not infringed the
patent in the suit, that the patent in the suit is invalid, and the Company
seeks a Declaratory Judgement of non-infringement and invalidity. The Company
intends to vigorously defend itself in this action.
On August 16, 1999, an action entitled Shopsports.com v. SportsLine
USA, Inc., was commenced against the Company in the United States Court for the
Central District of California. The plaintiff seeks damages and injunctive
relief in connection with the Company's use of a tertiary domain name which the
plaintiff alleges infringes on the plaintiff's trademark rights. The action is
being consolidated with a declaratory judgement action, commenced by the
Company, seeking a judgement that the use of the tertiary URL
"shop.sportsline.com" did not infringe on plaintiff's common law rights. The
Company intends to vigorously defend itself in this action.
From time to time, the Company is involved in litigation arising out of
its operations in the normal course of business. In the opinion of management,
the Company is not currently a party to any legal proceedings, the adverse
outcome of which, individually or in the aggregate, would have a material
adverse effect on the Company's consolidated financial position or results of
operations.
10
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following Management's Discussion and Analysis of Financial
Condition and Results of Operations contains forward-looking statements which
involve risks and uncertainties. The Company's actual results could differ
materially from those anticipated in these forward-looking statements. Factors
that might cause or contribute to such differences include, among others,
competitive pressures, the growth rate of the Internet, constantly changing
technology and market acceptance of the Company's products and services.
Investors are also directed to consider the other risks and uncertainties
discussed in the Company's Securities and Exchange Commission filings, including
those discussed under the caption "Risk Factors That May Affect Future Results"
in the Company's Annual Report on Form 10-K for the year ended December 31,
1999. The Company undertakes no obligation to publicly release the result of any
revisions to these forward-looking statements, which may be made to reflect
events or circumstances after the date hereof or to reflect the occurrence of
unanticipated events. The following discussion also should be read in
conjunction with the Company's Consolidated Financial Statements and Notes
thereto included elsewhere in this Report.
Recent Developments
In February 2000, the Company entered into a multi-year strategic
agreement with theglobe.com. Under the terms of the agreement the Company will
receive a minimum guarantee of $5 million payable in theglobe.com stock,
representing 3% of the outstanding shares in theglobe.com stock, in exchange for
integration and promotion of the enhanced community throughout the Company's web
sites and inclusion in the Company's membership "Rewards Program".
In the first quarter of 2000, the Company entered into a 10-year
strategic e-commerce and marketing agreement with MVP.com, Inc. ("MVP.com"), a
new sports and outdoor e-commerce company, pursuant to which MVP.com acquired
and will operate the Company's domestic e-commerce business. Effective as of
January 1, 2000, MVP.com assumed responsibility, at its expense, for the design,
hosting, operation and ongoing maintenance of the Company's e-commerce
operations and is entitled to all revenue generated from the sales of goods and
services pursuant thereto. As consideration for this right, MVP.com has issued
equity to the Company and will pay the Company promotional fees based on the
amount of revenue generated, with minimum cash payments of $120 million over the
10-year term. In connection with this agreement, the Company sold three of its
subsidiaries which engage in e-commerce activity (International Golf Outlet,
Inc., Golf Club Trader, Inc. and TennisDirect.com, Inc.) to MVP.com in exchange
for additional equity in MVP.com. The sale generated a one-time gain of
$7,814,000.
Results of Operations
Revenue
Total revenue for the quarter ended March 31, 2000 and 1999 was
$22,678,000 and $11,057,000, respectively. The increase in revenue was primarily
due to increased advertising sales and content licensing. Advertising revenue
for the three months ended March 31, 2000 and 1999 represented 83% and 53%,
respectively, of total revenue. Advertising revenue increased primarily as a
result of a higher number of impressions sold generating additional advertising
on the Company's Web sites and advertising revenue recognized pursuant to the
agreement with MVP.com. During March 2000, the Company's coverage of the NCAA
tournament set a Company record for advertising sales for an event. There were
approximately 35 sponsors including Oldsmobile, Agilent and Budweiser. The
number of impressions available on the Company's Web sites also increased as
more content was produced.
Membership and premium services revenue decreased $127,000 in the three
months ended March 31, 2000 compared to the same period in 1999. While basic
membership revenue decreased in 2000 due to a restructuring of the Company's
membership program, premium service revenue increased due to increased
participation in the Company's fantasy sports contests as well as increased
participation in the Company's "Sports Careers" products. In January 1999, the
Company launched "SportsLine Rewards," a program which offers bonus points to
members for viewing pages and making purchases. These points can be redeemed for
discounts on merchandise, special events and other premium items.
E-commerce revenue decreased $2,193,000 in the three months ended March
31, 2000 compared to the same period ended March 31, 1999. This was caused by
the sale effective as of January 1, 2000, of virtually all of the Company's
e-commerce business to MVP.com.
Content licensing and other revenue increased $953,000 in the three
months ended March 31, 2000 compared to the same period in 1999. This was in
part due to increased revenue as a result of the Company's agreement with AOL.
Additional content revenue was generated by the Company's agreement with Excite
and content revenue generated by Sports.com.
As of March 31, 2000, the Company had current deferred revenue of
$32,715,000 and long term-deferred revenue of $70,472,000 relating to cash or
receivables for which services had not yet been provided. Such amounts primarily
relate to the
11
<PAGE>
MVP.com agreement previously discussed.
Barter transactions, in which the Company received advertising or other
services or goods in exchange for content or advertising on its Web sites,
accounted for approximately 14% and 18% of total revenue for the three months
ended March 31, 2000 and 1999, respectively. In future periods, management
intends to maximize cash advertising and content licensing revenue, although the
Company will continue to enter into barter relationships when deemed
appropriate.
Cost of Revenue
Cost of revenue for the three months ended March 31, 2000 and 1999 was
$8,654,000 and $5,383,000, respectively. The increase in cost of revenue was
primarily the result of increased revenue sharing under the Company's agreements
with CBS, Major League Baseball and PGA TOUR. In addition, costs of content fees
and telecommunications needed to support and deliver services increased. Other
increases in cost of revenue reflect the relatively high level of rights
payments and employee costs required for the start up of Sports.com (which
accounted for 26% of total cost of revenue in the first quarter of 2000). As a
percentage of revenue, cost of revenue decreased to 38% for the three months
ended March 31, 2000 from 49% for the three months ended March 31, 1999.
Operating Expenses
Product Development. For the three months ended March 31, 2000 and
1999, product development costs were $441,000 and $357,000, respectively. The
Company believes that investments in product development are required to remain
competitive. Consequently, the Company intends to continue to invest resources
in product development. As a percentage of revenue, product development expense
decreased to 2% for the three months ended March 31, 2000 from 3% for the three
months ended March 31, 1999.
Sales and Marketing. For the three months ended March 31, 2000 and
1999, sales and marketing expense was $12,050,000 and $6,786,000, respectively.
The increase in sales and marketing expense was primarily the result of the
growth in the number of personnel and related costs, increased advertising on
other Web sites as well as in print and other media and the addition of expenses
related to Sports.com. Sports.com accounted for $2,550,000 or 21% of sales and
marketing expense. The Company intends to continue to aggressively promote the
sports.com brand worldwide in order to attract traffic and new users to its Web
sites. Barter transactions accounted for approximately 27% and 29% of sales and
marketing expense for the three months ended March 31, 2000 and 1999,
respectively. As a percentage of revenue, sales and marketing expense decreased
to 53% for the three months ended March 31, 2000 from 61% for the three months
ended March 31, 1999.
General and Administrative. General and administrative expense for the
three months ended March 31, 2000 and 1999 was $9,612,000 and $3,861,000,
respectively. The increase in general and administrative expense in each period
was primarily attributable to expenses related to Sports.com as well as salary
and related expenses for additional personnel. The Company increased general and
administrative expense in order to develop and maintain the administrative
infrastructure necessary to support the growth of its business. Sports.com
accounted for 27% of total general and administrative expense. The Company
expects to incur additional start up expenses as Sports.com continues its
expansion in the European market As a percentage of revenue, general and
administrative expense increased to 42% for the three months ended March 31,
2000 from 35% for the three months ended March 31, 1999.
Depreciation and Amortization. Depreciation and amortization expense
was $10,250,000 and $5,844,000 for the three months ended March 31, 2000 and
1999, respectively. The increase in depreciation and amortization expense was
primarily due to the amortization of amounts related to the Company's agreements
with CBS, PGA TOUR and Westwood One, Sports.com's agreement with IMG and to a
lesser extent additional property and equipment. Additionally, goodwill
amortization increased because of acquisitions made by the Company. In future
periods, the Company anticipates total amortization expense to increase as a
result of the continuing agreements mentioned above and the goodwill
amortization of recent acquisitions.
Under the Company's agreement with CBS, the Company issued shares of
Common Stock and warrants to purchase Common Stock in consideration of CBS's
advertising and promotional efforts and its license to the Company of the right
to use certain CBS Logos and television-related sports content. The value of the
advertising and content will be recorded annually in the balance sheet as
deferred advertising and content costs and amortized to depreciation and
amortization expense over each related contract year. Total expense under the
CBS agreement was $4,322,000 for the three months ended March 31, 2000 and will
be $12,964,000 for the remainder of 2000.
Under the Company's current agreement with AOL, which became effective in
October 1998, the Company issued shares of Common Stock and warrants to purchase
Common Stock and made a cash payment in consideration of AOL's advertising and
promotional efforts. The value of the advertising has been recorded on the
balance sheet as deferred advertising costs and is amortized to depreciation and
amortization expense over each related contract year. Total amortization expense
under the AOL agreement was $1,227,000 for the three months ended March 31, 2000
and will be $3,272,000 for the remainder of 2000.
12
<PAGE>
Under the Company's agreement with Westwood One, which became effective
in August 1999, the Company issued shares of Common Stock in consideration for a
three-year promotional and programming agreement. The value of the common stock
has been recorded on the balance sheet as deferred consulting costs and is
amortized to depreciation and amortization expense over each related contract
year. Total amortization expense under the Westwood One agreement was $750,000
for the three months ended March 31, 2000 and will be $2,250,000 for the
remainder of 2000.
Under the Company's agreement with PGA TOUR, which became effective in
April 1999, the Company paid an up-front licensing fee of $8,500,000. The
licensing fee has been recorded on the balance sheet as licensing rights and is
amortized to depreciation and amortization expense over each related contract
year. Total amortization expense under the PGA TOUR agreement was $567,000 for
the three months ended March 31, 2000 and will be $1,701,000 for the remainder
of 2000.
Interest Expense. Interest expense was $289,000 for the three months
ended March 31, 2000 compared to $186,000 for the three months ended March 31,
1999. The increase in interest expense was primarily due to the interest on the
Convertible Subordinated Notes which were issued on March 24, 1999. The Company
anticipates that interest expense will decrease in the immediate future compared
to 1999, as a result of the repurchase and retirement during the third and
fourth quarter of 1999 of approximately $130,000,000 of the $150,000,000
principal amount of Convertible Subordinated Notes originally issued.
Interest and Other Income, Net. Interest and other income, net for the
three months ended March 31, 2000 was $3,608,000 compared to $1,232,000 for the
three months ended March 31, 1999. The increase was primarily attributable to
the higher average balance of cash and cash equivalents and marketable
securities resulting from the investment of the proceeds from the Company's
April 1998 public equity offering, the Company's March 1999 Convertible
Subordinated Note offering and the funding received by Sports.com from the
issuance of Series B Preferred stock. Sports.com contributed to the increase by
recording a realized currency exchange gain upon receipt of the above funding
during the first quarter of 2000.
Gain on sale of subsidiaries. Effective January 1, 2000, the Company
sold to MVP.com three of its subsidiaries which engage in e-commerce activity
(International Golf Outlet, Inc., Golf Club Trader, Inc. and TennisDirect.com,
Inc.) The sale resulted a one-time gain of $7,814,000.
Liquidity and Capital Resources
As of March 31, 2000, the Company's primary source of liquidity
consisted of $95,820,000 in cash and cash equivalents, an increase of
$49,852,000 from December 31, 1999. As of March 31, 2000 the Company has
$49,381,000 in current marketable securities and $27,630,000 in noncurrent
marketable securities, which mature at various dates from April 2001 to May
2001. In January 2000, Sports.com completed a second round of funding, raising
gross proceeds of $52,500,000 through the issuance of Series B Preferred Stock.
In February 2000, CBS exercised warrants to purchase 500,000 shares of common
stock resulting in net proceeds of $11,500,000.
The Company has obtained revolving credit facilities that provide for
the lease financing of computers and other equipment purchases. Outstanding
amounts under the facilities bear interest at variable rates of approximately
9%. As of March 31, 2000, the Company owed $100,000 under these facilities.
As of March 31, 2000, current deferred advertising and content costs
totaled $19,530,000 and long-term deferred advertising and content costs totaled
$26,848,000, which represented costs related to the CBS and AOL agreements.
These amounts will be amortized to depreciation and amortization expense over
the terms of each agreement. Accrued liabilities totaled $16,680,000 as of March
31, 2000, an increase of $4,552,000 from December 31, 1999, primarily due to
increases in accruals for expenses related to sale of the subsidiaries to
MVP.com and revenue sharing.
Net cash used in operating activities was $4,458,000 and $7,292,000 for
the three months ended March 31, 2000 and 1999, respectively. The principal uses
of cash for all periods were to fund the Company's net losses from operations,
partially offset by increases in depreciation and amortization, accrued
liabilities and accounts payable.
Net cash used in investing activities was $9,746,000 and $11,872,000
for the three months ended March 31, 2000 and 1999, respectively. The principal
uses of cash in investing activities was for the purchases of property and
equipment and to a lesser extent purchases of marketable securities.
Net cash provided by financing activities was $64,056,000 and
$147,896,000 for the three months ended March 31, 2000 and 1999, respectively.
Financing activities consisted principally of the issuance of the Sports.com
Series B Preferred Stock and the exercise of the CBS warrants.
13
<PAGE>
Although the Company has no material commitments for capital
expenditures, it anticipates purchasing approximately $10.0 million of property
and equipment during the remainder of 2000, primarily computer equipment and
furniture and fixtures related to the growth of the business, including the
expansion of the infrastructure in Europe. The Company intends to continue to
pursue acquisitions of or investments in businesses, services and technologies
that are complementary to those of the Company.
The Company believes that its current cash and marketable securities
will be sufficient to fund its working capital and capital expenditure
requirements for at least the next 24 to 36 months. However, the Company expects
to continue to incur significant operating losses for at least the next 24 to 36
months. To the extent the Company requires additional funds to support its
operations or the expansion of its business, the Company may sell additional
equity, issue debt or convertible securities or obtain credit facilities through
financial institutions. There can be no assurance that additional financing, if
required, will be available to the Company in amounts or on terms acceptable to
the Company.
Seasonality
The Company expects that its revenue will be higher leading up to and
during major U.S. sports seasons and lower at other times of the year,
particularly during the summer months. In addition, the effect of such seasonal
fluctuations in revenue could be enhanced or offset by revenue associated with
major sports events, such as the Olympics and the World Cup events, although
such events do not occur every year. The Company believes that advertising sales
in traditional media, such as television, generally are lower in the first and
third calendar quarters of each year, and that advertising expenditures
fluctuate significantly with economic cycles. Depending on the extent to which
the Internet is accepted as an advertising medium, seasonality and cyclicality
in the level of Internet advertising expenditures could become more pronounced.
The foregoing factors could have a material adverse affect on the Company's
business, results of operations and financial condition.
Recent Accounting Pronouncements
The Company adopted SFAS No. 130, "Reporting Comprehensive Income," during
the year ended December 31, 1998. SFAS No. 130 establishes standards for the
reporting and display of comprehensive income (loss) and its components in a
full set of financial statements. The objective of SFAS No. 130 is to report
comprehensive income (loss), a measure of all changes in equity of an enterprise
that result from transactions and other economic events in a period, other than
transactions with owners. The Company has elected to disclose comprehensive
income (loss) in the consolidated statements of stockholders equity.
In June 1999, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 137, Accounting for Derivative Instruments and Hedging
Activities-Deferral of FASB Statement No. 133. SFAS No. 137 defers for one year
the effective date of SFAS No. 133, Accounting for Derivative Instruments and
Hedging Activities. SFAS No. 133 will now apply to all fiscal quarters of all
fiscal years beginning after June 15, 2000. SFAS No. 133 will require the
Company to recognize all derivatives on the balance sheet as either assets or
liabilities measured at fair value. Derivatives that are not hedges must be
adjusted to fair value through income. The Company will adopt SFAS No. 133
effective for the year ended December 31, 2001. The Company believes that the
adoption of SFAS No. 133 will not have a material impact on its consolidated
financial statements, as it has entered into no derivative contracts and has no
current plans to do so in the future.
The Company adopted SOP 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use" effective January 1, 1999. SOP
98-1 establishes criteria for determining which costs of developing or obtaining
internal-use computer software should be charged to expense and which should be
capitalized. Such adoption did not have a material effect on the Company's
financial position or results of operations.
In December 1999, the Securities and Exchange Commission ("SEC") issued
Staff Accounting Bulletin No. 101 ("SAB 101"), "Revenue Recognition in Financial
Statements." SAB 101 summarizes certain of the SEC's views in applying generally
accepted accounting principles to revenue recognition in financial statements.
In March 2000, the SEC issued SAB No. 101A to defer for one quarter the
effective date of implementation of SAB No. 101 with earlier application
encouraged. The Company is required to adopt SAB 101 in the second quarter of
fiscal 2000. The Company does not expect the adoption of SAB 101 to have a
material effect on its financial position or results of operations.
14
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's exposure to market rate risk for changes in interest
rates relates primarily to the Company's investment portfolio. The Company has
not used derivative financial instruments in its investment portfolio. The
Company invests its excess cash in debt instruments of the U.S. Government and
its agencies, and in high-quality corporate issuers and, by policy, limits the
amount of credit exposure to any one issuer. The Company protects and preserves
its invested funds by limiting default, market and reinvestment risk.
Investments in both fixed rate and floating rate interest earning instruments
carries a degree of interest rate risk. Fixed rate securities may have their
fair market value adversely impacted due to a rise in interest rates, while
floating rate securities may produce less income than expected if interest rates
fall. Due in part to these factors, the Company's future investment income may
fall short of expectations due to changes in interest rates or the Company may
suffer losses in principal if forced to sell securities which have declined in
market value due to changes in interest rates.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
From time to time, the Company is involved in litigation arising out of
its operations in the normal course of business. In the opinion of management,
the Company is not currently a party to any legal proceedings, the adverse
outcome of which, individually or in the aggregate, would have a material
adverse effect on the Company's consolidated financial position or results of
operations.
ITEM 2. CHANGE IN SECURITIES
Sales of Unregistered Securities During the Three Months Ended March 31, 2000
During the three months ended March 31, 2000, the Company issued and
sold the following securities without registration under the Securities Act:
During the three months ended March 31, 2000, upon exercise of
warrants, the Company issued a total of 557,000 shares of common stock for
aggregate cash of $11,865,000 including: (i) 6,000 shares of common stock to
Carmen A. Policy for cash consideration of $45,000; (ii) 10,000 shares of common
stock to Cal Ripken Jr. for cash consideration of $100,000; (iii) 18,000 shares
of common stock to Big Sky, Inc. for cash consideration of $90,000; (iv) 6,000
shares of common stock to Edward J. DeBartolo for cash consideration of $45,000;
(v) 17,000 shares of common stock to Leonard Armato for cash consideration of
$85,000; (vi) 500,000 shares of common stock to CBS Corporation for cash
consideration of $11,500,000.
No underwriter was involved in any of the above sales of securities.
All of the above securities were issued in reliance upon the exemption set forth
in Section 4(2) of the Securities Act of 1933, as amended (the "Securities
Act"), on the basis that they were issued under circumstances not involving a
public offering.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER INFORMATION
None
15
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
Exhibit Description
- ------- -----------
10.1 E-Commerce and Marketing Agreement, dated
March 24, 2000, between MVP.com, Inc. and
the Company.+
27 Financial Data Schedule
+ Certain portions of this exhibit have been omitted and separately filed with
the Securities and Exchange Commission pursuant to a request for confidential
treatment thereof.
(b) Reports on Form 8-K
On February 22, 2000, the Company filed a report on Form 8-K/A which
amends the Form 8-K previously filed on December 22, 1999. The original Form 8-K
announced the Company's acquisition of Daedalus World Wide Corporation ("DWWC").
The Form 8-K/A included the following statements: (i) the audited financial
statements of DWWC as of, and for the year ended, December 31, 1998 and the
unaudited financial statements of DWWC as of, and for the nine months ended,
September 30, 1999 and (ii) the unaudited pro forma combined balance sheet of
the Company as of September 30, 1999 and the unaudited pro forma combined
statements of operations for the Company for the year ended December 31, 1998
and the nine months ended September 30, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: May 15, 2000 SPORTSLINE.COM, INC.
(Registrant)
/s/ Michael Levy
----------------
Michael Levy
President and Chief Executive Officer
/s/ Kenneth W. Sanders
----------------------
Kenneth W. Sanders
Chief Financial Officer
16
E-COMMERCE AND MARKETING AGREEMENT
This E-Commerce and Marketing Agreement (this "Agreement") is entered
into between MVP.COM, INC., a Delaware corporation ("MVP"), and SPORTSLINE.COM,
INC., a Delaware corporation ("SportsLine").
BACKGROUND
A. SportsLine publishes and distributes a variety of sports-related
information, content and services, and publishes and operates various
sports-related Web sites.
B. MVP designs and operates Web sites, for itself and third parties,
through which MVP will market and sell, among other things, sporting goods;
outdoor, fitness, and athletic footwear, equipment, and apparel; and sports
memorabilia.
C. SportsLine and MVP desire to enter into a 10-year strategic
relationship, all as more particularly set forth herein subject to the following
terms and conditions.
Therefore, the parties agree as follows:
AGREEMENT
1. DEFINITIONS. Capitalized terms not expressly defined elsewhere in this
Agreement have the following meanings:
1.1. "Above-the-Fold" means placement on a Web page such that the
placement is viewable on a computer screen at a 800 x 600 pixels resolution when
the user first accesses such Web page without having to scroll down to view more
of the Web page.
1.2. "Acquired Businesses" means International Golf Outlet, Inc., Golf
Club Trader, Inc., and TennisDirect.com, Inc.
1.3. "Acquired Business Customers" all persons whose personal
information is contained in the respective databases of the Acquired Businesses
as of the Effective Date.
1.4. "Acquired URLs" means those URLs listed in Schedule 2.11 of that
certain Stock Purchase Agreement of even date herewith relating to the sale of
stock of the Acquired Businesses.
1.5. "Affiliate" means, with respect to a party, any person or entity
that controls, is controlled by, or is under common control with such party,
where "control" means ownership of fifty percent (50%) or more of the
outstanding voting securities (but only as long as such person or entity meets
these requirements).
1.6. "Change in Control" of a party means the occurrence of any of the
following: (a) any consolidation or merger of such party with or into any other
entity in which the holders of such party's outstanding shares immediately
before such consolidation or merger do not, immediately after such consolidation
<PAGE>
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
or merger, retain stock representing a majority of the voting power of the
surviving entity or stock representing a majority of the voting power of an
entity that wholly owns, directly or indirectly, the surviving entity; (b) the
sale, transfer or assignment of securities of such party representing a majority
of the voting power of all of such party's outstanding voting securities to an
acquiring party or group; or (c) the sale of all or substantially all of such
party's assets.
1.7. "Contract Year" means a twelve (12) month period beginning on the
Effective Date or any anniversary thereof.
1.8. "Deep Vertical Content" means any special, in-depth, or
feature-length articles, essays, editorials, photographs, videos, and audio
files or other media related to any sport, activity, team, athlete, or any other
sports, outdoors, or fitness-related content (or any collection of the
foregoing) that consists of more than only news, odds, video/audio highlights,
scores (including real-time and delayed scores), statistics (including real-time
and delayed statistics), fantasy sports leagues and related utilities, and game
summaries, in each case other than Sports Merchandise Content.
1.9. "Effective Date" shall mean January 1, 2000.
1.10. "Internet" means the global network of interconnected computer
networks, each using the Transmission Control Protocol/Internet Protocol (and/or
such other standard network interconnection protocols as may be adopted from
time to time), which is used to transmit content that is directly or indirectly
delivered to a computer or other digital electronic device for display to an
end-user, whether delivered through online browsers, commercial online services,
offline browsers (a browser that allows users to access a site without requiring
an online connection) or through push technology, electronic mail, broadband
distribution (high bandwidth above 56kb), satellite, wireless or otherwise.
1.11. "Manufacturer" means a company whose primary business is the ***.
1.12. "MVP Competitor" means any company, other than a ***, that (a)
owns or operates a Web site which is engaged primarily in the business of
selling or offering for sale Sports Merchandise (e.g., ***and (b) any company
engaged primarily in the business of the retail sale of Sports Merchandise
(including bricks-and-mortar retailers and catalog retailers).
1.13. "MVP Proprietary Web Site" means any Web site under the "mvp"
second-level domain (e.g., mvp.com or xxx.mvp.com) currently known as the
MVP.com Web site and any successor site, or any other Web site owned by MVP. MVP
Proprietary Web Site does not include any Web site operated by MVP on behalf of
or in conjunction with any third party or any MVP Affiliate.
1.14. "MVP Web Sites" means (a) all MVP Proprietary Web Sites, and (b)
any other Web sites (other than the SportsLine Stores or Third Party Stores)
owned, created, operated, or produced by or on behalf of MVP, including the Web
sites located at the Acquired URLs and any successors to such Web sites.
2
<PAGE>
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
1.15. "Net Merchandising Revenue" means all gross revenue (including
product sales and gift certificates), minus ***, and, to the extent included in
gross revenue, ***, from all Sports Merchandise sales transactions conducted:
(a) on or through any SportsLine Stores;
(b) on or through a Third Party Store (other than a store
operated for ***or ***) until such time as merchandise revenue sharing
payments become due to any third party on account of the applicable
Third Party Store and which merchandise revenue sharing payments MVP is
obligated to pay;
(c) with a *** who completes a sales transaction for Sports
Merchandise either:
(i) ***(ii) ***(iii) ***(iv) ***(v) ***(vi)
***(d) subject to Section ***, with an
Acquired Business Customer who completes a
sales transaction for Sports Merchandise
either:***(i) ***(ii) ***(iii) ***(iv)
***(v) ***
1.16. "Point-of-Sale Advertisement" means a promotion designed to lead
a SportsLine User directly to a third party Web site for the express purpose of
selling Sports Merchandise.
1.17. "Quarter" or "Quarterly" means a three (3) month period beginning
on the Effective Date or a three (3) month, six (6) month, or nine (9) month
anniversary thereof.
1.18. "Session" means a period of time commencing when a user first
accesses a page of a MVP Web Site and terminating on the later of when the user
(a) places a purchase order on the applicable MVP Web Site, (b) accesses a MVP
Web Site (e.g., through a link from another site, a bookmark or hand entering
URL), or (c) otherwise exits the applicable MVP Web Site.
1.19. "Sports Content" means sports scores, statistics, game summaries,
wire reports, news, editorial, photographs, video and audio files, fantasy
sports games, and other sports-related information and services of a similar
nature, whether in text, multimedia, or any other format, published on the
SportsLine Web Site. Sports Content specifically includes content licensed to
SportsLine with right of further sublicense. Sports Content specifically
excludes content from third party Web sites operated by or affiliated with
SportsLine which SportsLine does not have the right to license or sublicense to
third parties.
1.20. "SportsLine Competitor" means any Internet or other online sports
media service of any of the following: ***; ***1.21. "SportsLine Existing
Merchandise Agreements" means the agreements between SportsLine and the third
parties listed in Exhibit F.
1.22. "SportsLine Stores" means all of (a) those pages of the
SportsLine Web Site at any time during the Term comprising transactional
platforms for the sale of Sports Merchandise, (b) any future Web Sites owned or
operated by MVP that are co-branded with SportsLine or its Affiliates; and (c)
3
<PAGE>
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
SportsLine's business-to-consumer auction Web sites that sell primarily Sports
Merchandise. The SportsLine Stores in existence as of the Effective Date are set
forth in Exhibit A. SportsLine Stores do not include Third Party Stores.
1.23. "SportsLine User" means any person who accesses the SportsLine
Web Site or other Web sites owned, operated or controlled by SportsLine or its
Affiliates.
1.24. "SportsLine Web Site" means all pages under the "sportsline"
second-level domain (e.g., sportsline.com or cbs.sportsline.com) currently known
as the "CBS SportsLine" Web site (and any successor Web site), excluding any
derivative (e.g., the use of a tertiary domain) of the "sportsline.com" second
level domain directed to any information, materials or content not published
under the CBS SportsLine or successor brand.
1.25. "Sports Merchandise" means (a) sports, outdoors and
fitness-related equipment (e.g., bats, balls, gloves, racquets, clubs, helmets,
tents, skis, fishing equipment and exercise equipment); (b) sports, outdoors and
fitness-related clothing (e.g., team jerseys, footwear, and exercise clothing)
and active apparel (other than SportsLine and CBS logo items such as shirts and
caps with respect to which SportsLine will retain such rights); (c)
sports-related items that are unique and worthy of remembrance (e.g.,
autographed items such as balls, bats, jerseys, and pictures as well as
clothing, footwear, and equipment actually worn or used by famous athletes); and
(d) electronics primarily designed for sports-related use (e.g., heart rate
monitors, marine electronic devices, cycling computers). Sports Merchandise
shall not include ***
1.26. "Sports Merchandise Content" means any special, in depth, or
feature length articles, essays, editorials, photographs, videos, audio files,
and other information of a similar nature (whether in text, multimedia, or any
other format) or other media, tools or applications (or any collection of the
foregoing) related to (i) the competitive or recreational use of sports
products, including Sports Merchandise, or (ii) the purchase of Sports
Merchandise.
1.27. "Term" has the meaning set forth in Section 12.1.
1.28. "Third Party Stores" means all of (a) those pages of Web sites
(or portions thereof) operated by SportsLine for third parties (e.g., *** at any
time during the Term comprising transactional platforms for the sale of Sports
Merchandise, and (b) the subject third party's business-to-consumer auction Web
sites, if any, that sell primarily Sports Merchandise. The Third Party Stores in
existence as of the Effective Date are set forth in Exhibit E.
1.29. "Third Party Store User" means any person who accesses a Third
Party Store.
1.30. "Transition Period" has the meaning set forth in Exhibit B.
1.31. "Web" means the Internet and any successor system.
1.32. "URL" means uniform resource locator.
4
<PAGE>
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
2. DEVELOPMENT AND TRANSITION
2.1. Development and Transition. SportsLine and MVP will use
commercially reasonable efforts to implement the transition plan set forth in
Exhibit B. During the Transition Period, SportsLine will continue to operate the
SportsLine Stores in a commercially reasonable manner, and MVP will reimburse
SportsLine for all expenses directly attributable to SportsLine's operation of
the SportsLine Stores (including personnel, cost of goods sold, shipping and
handling, transactional expenses, and capital expenditures) during the
Transition Period ("Transition Period Expenses"), provided that such expenses
are in accordance with the budget approved by the parties, and non-budgeted
expenses in excess of *** and all out-of-pocket advertising expenses and
employee training expenses (regardless of amount) are approved in writing by
MVP. With respect to the period commencing on January 1, 2000 and ending on
March 31, 2000, MVP shall pay Transition Period Expenses in the amount of ***
(which includes projected figures for March 2000 which will be adjusted
post-closing to reflect actual operations and which adjustment shall be made to
the next monthly invoice for Transition Period Expenses or the next Quarterly
Guaranteed Payment, whichever occurs first), according to the statement attached
hereto as Appendix B-1 and which is due and payable upon execution of this
Agreement. SportsLine will invoice MVP for Transition Period Expenses on a
monthly basis for the remainder of the Transition Period in a manner consistent
with Appendix B-1, and MVP shall pay such invoices within thirty (30) days of
receipt of invoice. At MVP's request, SportsLine will provide MVP a reasonably
detailed report setting forth the following information for the Transition
Period (1)revenue from sales via the SportsLine Stores, and, as applicable,
Third Party Stores and (2) Transition Period Expenses.
2.2. Transition of SportsLine Employees. SportsLine will offer
incentives to all of its employees currently affiliated with the SportsLine
Stores to work until *** to assist in the Transition Period. MVP will make
offers to hire all reasonably qualified (as determined by MVP in its sole
discretion) SportsLine merchandising staff and customer service personnel, and
will provide those hired ***. Toward that end, SportsLine will provide MVP with
a list of eligible employees and will generally assist MVP in hiring such
employees. MVP will interview all eligible employees at least three (3) weeks
prior to the end of the Transition Period based upon work performed during the
Transition Period. MVP will reimburse SportsLine for any and all compensation
and benefits paid in the ordinary course of business for all SportsLine
employees working (whether full-time or part-time) in connection with the
SportsLine Stores or Third Party Stores during the Transition Period, regardless
of whether any or all of such employees are eventually hired by MVP. Subsequent
to the Transition Period, SportsLine will be solely responsible for all
expenses, costs, and liabilities associated with any SportsLine employee working
in connection with the SportsLine Stores and Third Party Stores. ***
3. OPERATION
3.1. Operation. Upon conclusion of the Transition Period, and as
further provided in this Agreement, MVP will assume responsibility, at its own
expense, for the design, hosting, operation and ongoing maintenance of the
SportsLine Stores and Third Party Stores, including the following:
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(a) Design. MVP will be responsible for design of the
SportsLine Stores and each Third Party Store and selection and
placement of content therein (including branding, and links to other
pages of the SportsLine Web Site, SportsLine Stores, Third Party
Stores, other Web sites owned or operated by SportsLine or its
Affiliates, and, subject to Sections 4.1(d) and 7.6, MVP Web Sites) and
advertising inventory (if any, and, in all cases, subject to Section
6.10(b)), in the SportsLine Stores, which ad copy shall be subject to
SportsLine's then-current generally applicable advertising guidelines
as disclosed to MVP in writing, and as amended from time to time by
SportsLine (provided that MVP receives prior written notice of such
amendments), and, with respect to Third Party Stores, further subject
to any existing applicable requirements of third-party agreements
between SportsLine and third parties, provided that MVP is informed of
such requirements. MVP shall consult with SportsLine with respect to
development and operation of the SportsLine Stores and Third Party
Stores, including advice on how to best drive traffic and effectively
enhance the customer experience within all SportsLine Stores and Third
Party Stores. *** (or the applicable third party, in the case of Third
Party Stores for which the applicable third party has reserved or been
granted a right of approval pursuant to its agreement with SportsLine)
will have final approval over the user interface, graphical look and
feel, design, navigation, and functionality of the SportsLine Stores
and Third Party Stores. *** will not unreasonably withhold or delay
such approval.
(b) Terms of Service. MVP will be responsible for creation and
administration of terms of service policies applicable to the
SportsLine Stores and Third Party Stores, subject to SportsLine's (or,
in the case of Third Party Stores for which the applicable third party
has reserved the right of final approval in its agreement with
SportsLine, the third party's) prior review and approval, which
approval will not be unreasonably withheld, and, with respect to Third
Party Stores, further subject to any existing applicable requirements
of third-party agreements between SportsLine and third parties,
provided that MVP is informed of such requirements.
(c) Product Procurement. Subject to SportsLine's existing
contractual obligations to third parties of which MVP has received
notice from SportsLine, MVP will make available through the SportsLine
Stores (i) the complete product lines of Sports Merchandise it carries
on the MVP Web Sites subject to (x) any approvals of Manufacturers or
other third parties required to sell certain Sports Merchandise on the
SportsLine Stores (which approvals MVP will use commercially reasonable
efforts to obtain, it being understood that the approval of any third
party may be withheld by the applicable third party) and (y) any third
party agreements applicable to MVP Web Sites other than the MVP
Proprietary Web Sites, which restrict the distribution of specific
items of Sports Merchandise outside of the specific MVP Web Site for
which it was sourced (e.g., *** logoed merchandise on a *** co-branded
MVP Web Site), and (ii) any *** SportsLine may request from time to
time, subject to this Section 3.1(c) and Section 6.2. Product lines to
be carried on Third Party Stores shall be subject to the terms and
conditions of the agreement governing the applicable Third Party Store.
MVP and SportsLine will consult with each other to determine demand
forecasts for the SportsLine Stores and Third Party Stores prior to key
buying periods to assist MVP to purchase or make other arrangements to
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obtain inventory to meet such demand forecasts, and MVP will use
commercially reasonable efforts to purchase additional products to meet
actual demand in excess of such projections.
(d) Order Processing; Customer Service. MVP will be
responsible for order processing and customer service for the
SportsLine Stores and the Third Party Stores as follows: (i) fulfilling
SportsLine customer orders (pick, pack and ship) upon receipt of such
orders electronically from the SportsLine Stores or Third Party Stores,
(ii) handling returns in a manner consistent with MVP's generally
applicable operational standards, (iii) operating a call center and
sufficient dedicated toll-free telephone numbers to be answered by MVP
personnel (or the personnel of a third party handling customer service
on behalf of MVP) to provide telephone and e-mail customer service for
the SportsLine Stores and applicable Third Party Stores in accordance
with the service levels set forth in Appendix C-1. ***. SportsLine
shall have the right to *** from time to time to assess and improve ***
and *** for the SportsLine Stores and the Third Party Stores, and MVP
will consider in good faith the results of such ***.
(e) Fulfillment. MVP will be responsible for distribution
center and other fulfillment capabilities and costs as described in
Exhibit C. MVP will offer a reasonable range of shipping options and
*** for ***, and will ensure that such charges are commercially
reasonable shipping rates consistent with industry standards. *** in
connection with sales via the SportsLine Stores will be *** in a manner
mutually determined by the parties, and labeling and invoices in
connection with sales via Third Party Stores shall be as mutually
agreed upon between MVP and the applicable third party. Notwithstanding
the foregoing, with respect to the sale of products via the SportsLine
Stores and fulfilled by *** in connection with such sales shall be
branded with the SportsLine brand to the extent practicable.
(f) Credit Card Processing. MVP will be responsible for all
credit card processing, clearance, returns, and charge-backs. In
particular, MVP, at its sole expense, will: (i) provide a secure
connection to a reputable credit card clearing organization of its
choosing for the purpose of authorizing, charging and crediting
customers for auction sales; (ii) be exclusively responsible, at its
sole expense, for all merchant account costs associated with such
service provider including processing fees and development fees
associated with setting up a business relationship; (iii) use *** (and
update the same to keep pace with changes to industry practices) to
create a secure environment for the transmission, receipt and storage
of all customer billing information, and (iv) maintain separate
merchant account identification numbers to permit each of the Third
Party Stores to be identified on a customer's credit card statement.
(g) Technology Infrastructure. MVP will:
(i) create, maintain and update all aspects of
systems and server infrastructure and
hosting, operating and updating the
SportsLine Stores and each Third Party Store
on MVP's own servers, it being understood
that the SportsLine Stores will be hosted
under the *** brand and primary URL ***
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except as otherwise approved in advance and
in writing by SportsLine, and the Third
Party Stores shall be hosted under brands
and primary URLs as specified in the
agreement governing the applicable Third
Party Store;
(ii) integrate all elements of electronic
retailing (including online shopping cart
capacity, order and credit card processing,
"wallet" technology, and product and
inventory maintenance) necessary to publish
and operate the SportsLine Stores and the
Third Party Stores on a fully secure and
integrated basis consistent, at a minimum,
with *** (and update the same to keep pace
with changes to industry practices) and
SportsLine Existing Merchandise Agreements;
(iii) be solely responsible for all connectivity
and bandwidth costs and expenses associated
with the SportsLine Stores and the Third
Party Stores and coordinating logistics
necessary to ensure a real time inventory
interface between (A) the SportsLine Stores
or the Third Party Stores, as applicable,
and (B) MVP's back-end and distribution
center systems;
(iv) develop, maintain and update all application
programming interfaces (APIs) necessary to
integrate the SportsLine Stores and Third
Party Stores with *** systems to enable ***
marketing personnel to continue to promote
products offered for sale on the SportsLine
Stores and the Third Party Stores as
provided in Exhibit D;
(v) develop, maintain and update APIs necessary
to authenticate, on a real time basis,
authorization for *** to registered end
users of the *** Web Site and Web sites with
respect to which MVP is operating Third
Party Stores, and such API's will operate in
a manner such that registered end users will
not have to re-enter previously submitted
information.
(vi) monitor the performance and availability of
the SportsLine Stores and the Third Party
Stores on a continuous basis.
(h) Sales Taxes. MVP shall be deemed the retailer for sales
tax purposes. MVP shall maintain a system of sales tax reporting. MVP
shall be responsible for collecting from each customer all sales taxes
and duties applicable according to the foregoing, and reporting and
remitting such taxes and duties to the appropriate taxing authority. In
addition, upon SportsLine's request, MVP shall provide, subject to
Section 11, SportsLine with any and all *** in MVP's possession or
control necessary to respond to ***.
(i) Auctions. MVP will assume sole responsibility for stocking
the SportsLine/*** business-to-consumer auction and operating the same
on an "as is" basis in accordance with ***. MVP shall receive ***
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percent *** of merchandising-related revenues generated from sales via
the *** auction, which revenue shall be subject to the payment of the
Promotional Fees to SportsLine as more fully set forth in Section 9
below. The parties will work together in good faith to develop a
strategy for operating ***. In addition, *** MVP shall, in its sole
discretion, be responsible for maintaining the technology
infrastructure necessary to operate an online auction capability in
accordance with then-current industry standard technology, and
incorporate improvements and new developments as such become
commercially practicable.
(j) SportsLine Existing Merchandise Agreements. MVP
acknowledges that SportsLine is subject to pre-existing obligations
pursuant to the SportsLine Existing Merchandise Agreements.
Accordingly, MVP agrees to comply with the applicable terms and
conditions of SportsLine Existing Merchandise Agreements when
fulfilling its obligations under this Agreement, ***. As provided in
Section 1.15(b), ***("Third Party Store Merchandise Revenue Payments"),
*** MVP shall be responsible for payment of any Third Party Store
Merchandise Revenue Payments due to parties (other than SportsLine)
pursuant to such SportsLine Existing Merchandise Agreements. *** ***
(k) Clearance/Closeout Section. MVP shall maintain, until the
end of the Transition Period, a section of the SportsLine Stores
devoted to closeout and clearance promotions consistent with that
operated by SportsLine as of the Effective Date.
3.2. Subcontractors. MVP may employ subcontractors (which may be
subject to approval pursuant to SportsLine Existing Merchandise Agreements) to
carry out any of its duties or responsibilities described in Section 3.1,
provided that MVP (i) retains overall control of and responsibility for the
fulfillment of such duties or obligations, and (ii) each subcontractor agrees to
comply with and be bound by, through agreement, instruction or otherwise, MVP's
confidentiality obligations specified in this Agreement. Nothing in this Section
3.2 shall be construed to discharge MVP from any duty or responsibility of MVP
undertaken by any subcontractor.
3.3. Service Levels. MVP will meet the operational and customer service
standards set forth in Exhibit C and Appendix C-1.
3.4. Pricing. MVP shall price all products sold through the SportsLine
Stores and the Third Party Stores in a manner to remain reasonably competitive
with ***. MVP and SportsLine agree to establish an incentive program to provide
*** with a discount off any purchases made through the SportsLine Stores and the
Third Party Stores. Such discount program will be set forth in a separate
agreement to be negotiated in good faith between the parties. At SportsLine's
request, MVP will provide to members of the SportsLine Web Site membership and
frequency loyalty programs either a discount in an amount not to exceed *** of
the amount of the purchase (excluding sales taxes and shipping and handling) or
***, provided SportsLine will reimburse MVP for the amount of the discount or
the cost of the ***, as applicable, but in either case where such *** promotion
is not a discount or promotion generally available to SportsLine Web Site users.
Without limiting the foregoing, the prices for products offered for sale on the
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SportsLine Stores and the Third Party Stores will be *** to the prices and
promotions for the same products offered for sale on any MVP Web Site (other
than any outlet stores), except for *** for close-out merchandise and *** and
promotions on select products. Any discount to be made available to *** will be
addressed in a separate agreement.
3.5. Relationship Oversight. SportsLine will hire senior merchandising
employees as account executives to oversee the SportsLine's relationship with
MVP and will assist MVP, as MVP may request, with respect to product mix and
pricing of all Sports Merchandise sold through the SportsLine Stores and in
determining demand forecasts prior to key buying periods pursuant to Section
3.1(c). SportsLine's senior merchandising employees will oversee the MVP
relationship and will have direct input on *** regarding the *** and *** of
Sports Merchandise on the SportsLine Stores and the Third Party Stores, subject
to and in accordance with Section 6.2.
3.6. Delivery of Sports Content. SportsLine will deliver scores,
statistics, game summaries, and other mutually agreed upon Sports Content to MVP
as reasonably requested by MVP on a prompt and timely basis and in a mutually
agreed upon format for publication and display on the ***, the SportsLine
Stores, the Third Party Stores, and any *** operated by MVP during the Term,
subject to the terms and conditions of this Agreement with respect to the use of
such Sports Content. SportsLine and MVP will cooperate in good faith to enter
into agreements pursuant to which MVP may obtain and use *** from third party
Web sites operated by or affiliated with SportsLine. Use of the *** on the ***
is at the sole discretion of *** and subject to the terms and conditions of
Sections 6.8 and 8.1 of this Agreement.
3.7. Content Guidelines. The SportsLine Stores and the Third Party
Stores shall not, without SportsLine's prior written consent, (a) contain any
material which denigrates SportsLine, CBS, the party for which a Third Party
Store is operated, or the respective members, directors, officers or employees
of the foregoing; (b) offer to any end user any feature which permits such end
user to *** on any professional or amateur sporting event or accomplishment from
such Site; (c) distribute content with the primary purpose of assisting end
users in *** any professional or amateur sporting event or accomplishment
(including any content that utilizes professional or amateur sporting event ***
in connection with any *** or *** about the *** of any professional or amateur
sporting event); (d) display any advertisement, promotion or sponsorship
promoting *** any professional or amateur sporting event or accomplishment; or
(e) display or otherwise maintain *** containing any material described in the
foregoing clauses (a)-(d). This Section 3.7 will not apply to any content or
material furnished to MVP by SportsLine for use or publication on the SportsLine
Stores or Third Party Stores, nor any content or material furnished to MVP by
the third party (e.g., ***) for whom MVP is operating a Third Party Store for
use or publication on such Third Party Store, provided that, prior to publishing
such content or material, MVP notifies SportsLine in writing of such third
party's request to publish such content or material on the Third Party Store.
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4. ADVERTISING, PROMOTION, AND MARKETING
4.1. Integrated Promotion and Marketing Efforts
(a) In General. During the Term, SportsLine will promote the
SportsLine Stores in a manner consistent with Exhibit D. Further,
SportsLine will continue to provide, at its sole expense and subject to
necessary third party consents that SportsLine will use commercially
reasonable efforts to obtain (it being understood that the approval of
any third party may be withheld by the applicable third party), the
marketing resources that are contractually available to SportsLine to
promote the SportsLine Stores as of the Effective Date (including
advertising on the ***, the ***, and the *** in a manner consistent
with that utilized as of the Effective Date and to the extent
SportsLine continues to have the right to such marketing resources. MVP
acknowledges that all branding and promotion associated with such
marketing resources will be for ***, and that SportsLine's obligation
to provide any promotion available pursuant to third party agreements
is limited to agreements in existence as of the Effective Date (and
subject to such third parties approval) and that SportsLine shall be
under no obligation to *** any of such agreements.
(b) ***
(c) Responsibility for Promotional Materials. MVP shall be
responsible for designing, creating and delivering all digital product
copy (including product reviews and instructional content) and images
and other pertinent information and materials necessary to create and
promote the SportsLine Stores. MVP shall be responsible for the cost of
production of all promotional graphics necessary to promote all
products offered for sale on the SportsLine Stores and promoted within
the SportsLine Web Site or offered for sale on the Third Party Stores
and promoted within the applicable third party Web site.
(d) Additional Restrictions. All marketing, advertising and
promotion of the SportsLine Stores and Third Party Stores to which MVP
is entitled pursuant to this Agreement shall promote and link solely to
the SportsLine Stores or, as applicable, Third Party Stores, and is
further subject to Section 7.6. For purposes of clarity, under no
circumstances may any of the marketing, advertising or promotion of the
SportsLine Stores and Third Party Stores to which MVP is entitled link
to or otherwise promote any MVP Web Site or destination other than the
SportsLine Stores or Third Party Stores. MVP will not be considered to
be in breach of this paragraph (d) with respect to any such
unauthorized marketing, advertising, or promotion of or link to the
SportsLine Stores or Third Party Stores where the content for such
unauthorized marketing, advertising, or promotion or link is created or
produced by SportsLine or the third party for whom a Third Party Store
is operated (e.g. if a SportsLine employee erroneously creates a
promotion that links directly to an MVP Web Site).
5. *** ENDORSEMENTS AND OFFICIAL MERCHANDISING RELATIONSHIPS
5.1. *** Endorsements. During the Term, MVP and SportsLine will work
together in good faith to assist each other in establishing *** with the ***
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affiliated with the other party (i.e., MVP will assist SportsLine in
establishing relationships with *** and SportsLine will assist MVP in
establishing relationships with ***).
5.2. ***.
(a) Covenants. Subject to the conditions set forth in Section
5.2.2 below, SportsLine agrees that it will not *** ***
(collectively, "*** Rights") ***.
(b) Conditions. SportsLine's covenants in Section 5.2(a) above
will be excused (i.e., SportsLine shall not be bound by such covenants)
if, and only to the extent that, MVP fails to meet any of the following
conditions:***(i) ***(ii) ***(iii)***
(c) Acknowledgments. MVP further acknowledges and agrees that:
(i) SportsLine's covenants in Section 5.2(a)
shall in no way constitute a waiver of any
of the rights granted to SportsLine under
its ***,
(ii) any grant of rights from *** to or on behalf
of *** shall not be in lieu of ***'s
obligations to ***, and
(iii) *** will coordinate the use of the ***
Rights with *** to avoid confusion in the
marketplace and any conflict with ***'s
obligations to ***.
5.3. Relationships with ***. Beyond the obligations set forth in
Section 3.1(j) and with respect to all *** not currently under contract with
SportsLine or MVP as of the execution of this Agreement, SportsLine and MVP
shall cooperate in good faith with respect to joint content and commerce
relationships in which SportsLine will be the *** and MVP will *** (it being
understood that, subject to the parties' duty of good faith and fair dealing,
neither party will be prohibited from entering into such relationships if the
applicable prospective partner chooses, in its sole discretion, not to enter
into an agreement with the other party or if pre-existing agreements preclude
such third party from working with either MVP or SportsLine).
6. EXCLUSIVITY
6.1.Exclusive Provider of Sports Merchandise.
(a) General Scope. Except as expressly provided in this
Section 6, and subject to the contractual commitments of SportsLine and
its Affiliates existing as of the date of execution of this Agreement
as specified on Exhibit F, including any third party approvals required
with respect to any Web sites operated by SportsLine on behalf of third
parties ***, MVP will be the exclusive provider of Sports Merchandise
for (i) the SportsLine Web Site; or (ii) any other Web site owned by
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SportsLine that is targeted primarily at a U.S. audience ("Other
SportsLine Web Site").
(b) Acquired Web Sites. Other SportsLine Web Sites shall not
include any Web site acquired by SportsLine (an "Acquired Web Site"),
whether through an acquisition of or merger with a third party or
otherwise, either (i) ***; or (ii) if (A) ***, (B) ***, and (C) ***.
(c) Further Exceptions. MVP acknowledges that this Section 6.1
shall not preclude SportsLine from performing *** (in addition to any
other services) (a) pursuant to agreements with official rights holders
with respect to which MVP is not providing such services, (b) in
connection with *** and *** or other Web Sites produced by SportsLine
or its Affiliates.
6.2. Sports Merchandise Not Provided by MVP. SportsLine retains the
right to enter into direct relationships with *** or *** to drop ship, consign,
or procure any type of Sports Merchandise that MVP is unwilling or unable to
procure or offer for sale through the SportsLine Stores or any Third Party
Stores as follows. If there is any type of Sports Merchandise that is not being
offered on the SportsLine Stores or any Third Party Stores and that SportsLine
desires to have offered on the SportsLine Stores or any Third Party Stores,
SportsLine may notify MVP in writing that SportsLine would like to have this
type of Sports Merchandise offered on the SportsLine Stores or a particular
Third Party Store. MVP will then have *** days to notify SportsLine of one of
the following, subject to the applicable conditions:
(a) MVP intends to make arrangements to procure and offer for
sale the subject Sports Merchandise on the SportsLine Stores or the
subject Third Party Store. If MVP notifies SportsLine that MVP intends
to offer the requested type of Sports Merchandise on the SportsLine
Stores, and, if applicable, the subject Third Party Store, MVP will
have *** days to make arrangements to procure and begin offering this
type of Sports Merchandise on the SportsLine Stores and the applicable
Third Party Store. If MVP notifies SportsLine that MVP intends to offer
the requested type of Sports Merchandise on the SportsLine Stores and
the subject Third Party Store, but fails to begin offering this type of
Sports Merchandise on the SportsLine Stores or any Third Party Store
within the *** day period described above, SportsLine may make its own
arrangements to procure this type of Sports Merchandise from a
reputable vendor, and within *** days of receipt of notice from
SportsLine that such arrangements have been made (including all
information necessary for fulfillment of customer orders), MVP will
begin offering such Sports Merchandise on the SportsLine Stores or the
subject Third Party Store, as applicable.
(b) MVP reasonably believes that the subject Sports
Merchandise is not consistent with the nature and quality of the other
types of Sports Merchandise offered on the SportsLine Stores or a
particular Third Party Store, and accordingly, MVP does not intend to
offer this type of Sports Merchandise on the SportsLine Stores. If MVP
notifies SportsLine that MVP believes the requested type of Sports
Merchandise is not consistent with the nature and quality of the other
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types of Sports Merchandise offered on the SportsLine Stores or a
particular Third Party Store, this type of Sports Merchandise will not
be offered on the SportsLine Stores, subject to any rights that the
applicable Third Party may have under its agreement with SportsLine,
with respect to a particular Third Party Store, to request or require
that certain products or types of products be offered for sale on the
Third Party Store.
(c) MVP reasonably believes that the subject Sports
Merchandise is consistent with the nature and quality of the other
types of Sports Merchandise offered on the SportsLine Stores, but
nevertheless MVP does not intend to make arrangements to procure and
offer of the subject Sports Merchandise on the SportsLine Stores. If
MVP notifies SportsLine that MVP believes such type of Sports
Merchandise is consistent with the nature and quality of the other
types of Sports Merchandise offered on the SportsLine Stores, but
nevertheless MVP does not intend to make arrangements to procure and
offer such type of Sports Merchandise on the SportsLine Stores,
SportsLine may make its own arrangements to procure this type of Sports
Merchandise from a reputable vendor, and within *** days of receipt of
notice from SportsLine that such arrangements have been made (including
all information necessary for fulfillment of customer orders), MVP will
begin offering such Sports Merchandise on the SportsLine Stores. MVP
will provide fulfillment and customer services, on a mutually agreed
upon basis (with respect to which MVP will negotiate in good faith on
commercially reasonable terms) for such products obtained through
consignment or procurement by SportsLine. To the extent MVP provides
such services, MVP shall collect and retain gross revenue and shall pay
to SportsLine a transaction fee to be determined on a case-by-case
basis based upon the available gross margin available on each product
so sourced.
6.3. SportsLine Advertising. Except as expressly provided in this
Section 6.3 and in Section 6.4, nothing in this Agreement will restrict
SportsLine's or its Affiliates ability to enter into any advertising or
sponsorship arrangement or agreement (and retain all of the revenue generated
therefrom) in connection with or on the SportsLine Web Site. SportsLine agrees
that it and its Affiliates will not enter into any advertising or sponsorship
arrangement relating to the SportsLine Web Site (a) ***; (b) for ***; or (c)***
6.4. SportsLine Advertisement of Manufacturers. Subject to Section
6.3(c), SportsLine may enter into advertising or sponsorship arrangements and
agreements with any Manufacturer, and MVP acknowledges and agrees that MVP will
not be entitled to any revenue therefrom and that SportsLine shall retain all
such revenue. ***
6.5. Third Party Sites. The provisions of Sections 6.3 and 6.4 do not
apply with respect to third party Web sites produced or operated by SportsLine,
and MVP acknowledges and agrees that the sale and trafficking of all advertising
and sponsorships in connection with such sites shall be subject to the terms and
conditions of separate agreements with such third parties, and, in some cases,
the sole discretion of the applicable third party.
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6.6. SportsLine Frequency Loyalty Program. MVP acknowledges and agrees
that SportsLine may enter into agreements with third parties with whom members
of the SportsLine Web Site's then-current frequency loyalty programs may redeem
points earned through the participation in such programs ("Redemption Partners")
through various third parties and that such Redemption Partners may be MVP
Competitors. Accordingly, Sections 6.1 through 6.4 shall not prohibit such
agreements with Redemption Partners in their capacity as Redemption Partners,
provided that SportsLine grants MVP a right of first refusal to be SportsLine's
Redemption Partner for promotions or redemptions involving Sports Merchandise.
6.7. Additional Goods and Services. Nothing in this Section 6 will be
construed to prevent or restrict in any way SportsLine's right to sell, market,
or distribute (and to keep all revenues associated therewith) (a) membership or
premium services, including specialty content, reward or loyalty programs,
fantasy sports products or services, sports-related careers, or magazine
subscriptions; (b) products that are not Sports Merchandise; and (c) other
intangible products or services, including retail software downloads, video
games, cybercards, or satellite television programming.
6.8. MVP Services. For *** from the Effective Date, MVP agrees that it
and its Affiliates will not perform, market or otherwise provide or enter into
any agreement to provide *** to or for the benefit of any *** without ***.
Thereafter, MVP will be free to enter into any relationship with any *** subject
to ***. Nothing in this Section 6.8 will be construed to prevent or restrict
MVP's ability to *** with ***.
6.9. SportsLine Content
(a) SportsLine Exclusivity. SportsLine will be MVP's exclusive
source of *** (other than ***) for the MVP Web Sites subject to
applicable third party content licenses governing SportsLine Content.
The foregoing will not prevent MVP from (i) entering into any agreement
to obtain and publish on any MVP Web Sites any *** or *** that
SportsLine is unwilling or unable to provide (provided that, prior to
entering into any such agreement, MVP gives *** prior written notice of
its desire to obtain and publish such content), or (ii) from entering
into agreements with third parties (other than ***) to operate MVP Web
Sites, other than MVP Proprietary Web Sites, for such third parties and
which MVP Web Sites will contain sports-related content supplied by
such third parties. ***
(b) MVP Exclusivity. SportsLine shall not license or otherwise
provide any *** to any MVP Competitor for a period of *** beginning on
the Effective Date, except that SportsLine may license or otherwise
provide content for sports other than ***, and *** to MVP Competitors,
provided that SportsLine notifies MVP prior to entering into such
relationships. ***
6.10. Media Advertising
(a) MVP Web Sites. If during the Term, MVP desires to enter
into media advertising sales in connection with any MVP Web Sites, MVP
will do so by leveraging the SportsLine sales force provided SportsLine
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advertising related commissions and services are reasonably competitive
in the marketplace. In cases where MVP is producing a MVP Web Site
other than a MVP Proprietary Web Site and MVP does not control the
selection of the sales force used to sell advertising on the MVP Web
Site, the third party for which the Web site is being produced may
utilize its own sales force or any other sales force it selects.
Notwithstanding the foregoing, MVP shall be free to sell co-op
sponsorships, provided, however, MVP will coordinate such activities
with SportsLine.
(b) SportsLine Stores and Third Party Stores. SportsLine shall
have the exclusive right to sell advertising in connection with the
SportsLine Stores, and, as between SportsLine and MVP, all Third Party
Stores. Notwithstanding the foregoing, MVP may negotiate and enter into
co-op advertising arrangements and agreements with any third party
other than a SportsLine Competitor, for placement on the SportsLine
Stores, provided that MVP will use good faith efforts to coordinate
such activities with SportsLine. MVP will be entitled to retain *** of
the revenue generated from its co-op advertising arrangements.
6.11. Other Relationships. Subject to Section 6.9(b), SportsLine will
retain the right to enter into relationships with third parties to create Web
sites for Internet service providers, portals (including ***), or other Web
sites. SportsLine and MVP will mutually agree upon the terms under which MVP may
provide e-commerce related services with respect to such present and future
relationships.
6.12. ***
6.13. ***
(a) Permissible Promotion. MVP acknowledges that SportsLine
has a pre-existing agreement with *** as ***, and agrees that *** shall
not be considered an *** or a *** for purposes of this Agreement.
SportsLine agrees that any promotion of *** on the SportsLine Web Site
(i) shall link to either the *** Web site or to the SportsLine Stores;
(ii) any such promotion of *** will not consist of a "storefront"
(i.e., a platform for consummating transactions on the SportsLine Web
Site or single presentation of a broad selection of items offered for
sale by ***); and (iii) SportsLine will facilitate discussions with ***
for the purposes of incorporating *** product offerings into the
SportsLine Store, and to establish MVP as a retail partner of ***
whereby *** merchandise may be offered for sale on the MVP Web Sites,
the SportsLine Stores, or both.
(b) ***
7. TRAFFIC ATTRIBUTION; CUSTOMER DATA; REPORTING
7.1. Traffic Attribution. The URLs for the SportsLine Stores will be
constructed in such a way that *** page views to the SportsLine Stores will be
attributable to *** for assessing Media Metrix (or a similar, mutually
acceptable third party that provides traffic measuring services) traffic and
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reach measurement purposes. SportsLine shall use commercially reasonable efforts
to provide written confirmation to any traffic measuring organization, including
Media Metrix, that certifies that MVP manages the SportsLine Stores on behalf of
SportsLine to permit MVP to get appropriate credit for producing the SportsLine
Stores.
7.2. Privacy Policy. The parties will work together to prepare a privacy
policy governing customer data collection and usage in connection with the
SportsLine Stores (the "Privacy Policy") that is consistent with applicable laws
and industry standards (including SportsLine's current certification standards
(TRUSTe)) and reasonably acceptable to each party.
7.3. *** Ownership of SportsLine Store Customer Data. Information
regarding individual customers and customer orders generated from the SportsLine
Stores (***") will be owned ***. MVP will (a) collect the *** in accordance with
the Privacy Policy and applicable law, (b) tag such information in its databases
as ***, and (c) make appropriate and adequate disclosures of any person, firm or
enterprise entitled to access to or to otherwise obtain ***. During the
Transition Period, MVP will deliver the *** to SportsLine in a mutually
agreeable format at least ***. After the Transition Period, MVP will deliver the
*** to SportsLine in a mutually agreeable format on a *** basis. Either party
may use *** to conduct direct mail, email, and other promotional efforts to the
extent permitted by applicable law and the Privacy Policy; however, neither
party will provide, disclose, or make available to any third party (other than
any of ***, parties entitled to such information pursuant to any ***, or as
otherwise mutually agreed upon by the parties) any portion of the *** that
consists of the *** without the other party's prior written consent.
7.4. SportsLine User Data. To the extent permitted by applicable law and
SportsLine's then-current privacy policies, SportsLine, upon MVP's reasonable
request, will distribute to SportsLine User email addresses ("SportsLine User
Data") mutually agreed upon direct mail, email, and other promotional efforts on
behalf of MVP targeted at SportsLine Users ("Targeted MVP Promotions"). As
between the parties, SportsLine retains exclusive ownership of any and all
right, title and interest in and to SportsLine User Data and all related
information, and MVP shall not be entitled to access to any such SportsLine User
Data. No Targeted MVP Promotions may encourage *** to shop at *** during the
Term.
7.5. Third Party Store User Data. Ownership and Use of all data related
to Third Party Store Users shall be governed by the agreement governing the
applicable Third Party Store. Revenue generated by any promotional efforts
targeted to Third Party Store Users shall be included in Net Merchandising
Revenue.
7.6. Additional Restriction on MVP Use of SportsLine Customer Data,
SportsLine User Data, and Third Party Store User Data. Notwithstanding anything
to the contrary in this Agreement (including MVP's right to promotion, marketing
and advertising pursuant to Section 4, but subject to the restrictions set forth
in Section 4.1(d)), MVP shall not, under any circumstances, use *** or *** for
any purpose whatsoever other than to promote the *** and, as permitted by the
applicable governing agreement, Third Party Stores, except that if a user
registers on a *** using *** as for the SportsLine Stores or a Third Party
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Store, rather than requiring the user to ***, MVP may *** for such user from the
***, or Third Party Store User Data and MVP's use of such registration
information in connection with the MVP Web Sites will not give rise to Net
Merchandising Revenue.
7.7. *** Data. In furtherance of MVP's obligation pursuant to Section
3.1(g) to develop and maintain APIs necessary to interface with SportsLine's
content publishing infrastructure, MVP, ***, will provide, on a *** basis, ***
and *** (e.g., ***) that is identifiable via a *** or *** or *** in a secure
manner using a format reasonably specified by SportsLine to enable the
consolidation of SportsLine *** and *** capabilities. SportsLine will make such
data, including ***, and ***, available to MVP for the purpose of targeting
sales promotions for Sports Merchandise, ***.
7.8. Acquired Business Customer Data. Information regarding Acquired
Business Customers provided by SportsLine to MVP will be ***.
8. LICENSE GRANTS AND INTELLECTUAL PROPERTY OWNERSHIP
8.1. Sports Content License. During the Term, SportsLine hereby grants
to MVP a worldwide, non-exclusive (except as provided in Section 6.8),
royalty-free license to use, reproduce, distribute, create derivative works of
(solely as needed to create the look and feel of the SportsLine Stores or as
required to format the SportsLine Content for the SportsLine Stores, the Third
Party Stores, and the MVP Web Sites), publicly perform, publicly display, and
digitally perform the SportsLine Content on the SportsLine Stores, the
applicable Third Party Stores, and the MVP Web Sites, to the extent permitted by
third party licenses to which any such SportsLine Content is subject. All right,
title, and interest in and to the SportsLine Content (including all rights
therein under copyright, trademark, trade secret, and similar laws) not
expressly granted to MVP in this Section 8.1 are hereby reserved to SportsLine
or its licensors or suppliers, as applicable. Except as specifically permitted
hereunder, MVP shall not provide, make available, link, reproduce, transmit,
furnish or distribute the SportsLine Content itself or through or to third
parties for use on or through any facility. MVP acknowledges and agrees that
SportsLine reserves the right, at any time and from time, in the interests of
its own editorial discretion and business judgment to modify or alter the
SportsLine Content (provided that scores, statistics, game summaries, and
similar content remains factually accurate). Except as specifically permitted
hereunder, MVP has no right to alter, modify, adapt, translate, create
derivative works or otherwise change, in form, format, sequence, context or
substance, any SportsLine Content.
8.2. Trademark Licenses
(a) SportsLine Marks. During the Term, SportsLine hereby
grants to MVP a non-transferable, non-exclusive license, without the right to
sublicense, to use the SportsLine trade names and trademarks listed on Exhibit G
(as such list may be updated from time to time by SportsLine) solely for
advertising and marketing purposes, as well as on the SportsLine Stores and in
links to and advertisements and promotions for the SportsLine Stores, Third
Party Stores, and the MVP Web Sites. All rights to SportsLine Trademarks not
expressly granted herein are reserved to SportsLine.
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(b) MVP Marks. During the Term, MVP hereby grants to
SportsLine a non-exclusive, non-transferable license, without the right to
sublicense, to use the MVP trade names and trademarks listed on Exhibit H (as
such list may be updated from time to time by MVP) solely for advertising and
marketing purposes, as well as on the SportsLine Web Site and in links to and
advertisements and promotions for the SportsLine Web Site, SportsLine Stores,
Third Party Stores, or the MVP Web Sites. All rights to MVP Trademarks not
expressly granted herein are reserved to MVP.
8.3. Restrictions. The trademark owner may terminate the foregoing
license with respect to any or all of its trade names or trademarks if, in its
reasonable discretion, the licensee's use of the owner's trademarks or trade
names ("Licensed Marks") in any way tarnishes, blurs, or dilutes the quality
associated with the Licensed Marks or the associated goodwill. Title to and
ownership of the owner's Licensed Marks will remain with the owner. The licensee
will use the Licensed Marks in conformance with any trademark usage policies of
the owner furnished in writing to the licensee. The licensee will not form any
combination or derivative marks with the owner's Licensed Marks. The licensee
will not take any action inconsistent with the owner's ownership of the Licensed
Marks. Any benefits accruing from use of the Licensed Marks will automatically
vest in the owner. Promptly following the owner's request, the licensee will
submit to the owner or its representative samples of the licensee's use of the
owner's Licensed Marks.
9. PAYMENT
9.1. E-commerce Revenue. Beginning on the Effective Date, MVP will be
entitled to collect and receive all gross revenue from sales of goods and
services through the SportsLine Stores. Within fifteen (15) days following the
execution of this Agreement and continuing during the Transition Period,
SportsLine will direct all such payments, net of costs for which MVP is
responsible pursuant to this Agreement (for which SportsLine shall provide a
detailed accounting to MVP), it receives to an account designated by MVP.
9.2. Promotional Fees; Guaranteed Minimum Payment. As consideration for
the promotion to be provided by SportsLine pursuant to this Agreement, MVP will
pay promotional fees ("Promotional Fees") to SportsLine, which will be
calculated by multiplying MVP's Net Merchandising Revenues by the applicable
percentage set forth in the table below. At a minimum, MVP will make guaranteed
payments of one hundred twenty million dollars ($120,000,000) ("Total Guaranteed
Promotional Fees") in Promotional Fees in the aggregate over the Term, which
shall be payable in equal Quarterly installments (except for Quarterly
installments due on account of the first Year) as set forth in Section 9.3 below
(each, a "Quarterly Guaranteed Payment").
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<TABLE>
<CAPTION>
- ------------------------------- --------------------------------------------------------- ----------------------------
GUARANTEED ANNUAL MINIMUM
YEARS PROMOTIONAL FEES PAYMENT
- ------------------------------- --------------------------------------------------------- ----------------------------
NET MERCHANDISING REVENUE NET MERCHANDISING REVENUE
UP TO AMOUNT OF ABOVE GUARANTEED ANNUAL
GUARANTEED ANNUAL MINIMUM MINIMUM
PAYMENT PAYMENT
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
<S> <C> <C> <C> <C>
1 *** *** ***
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
2 *** *** ***
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
3-4 *** *** ***
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
5-6 *** *** ***
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
7-10 *** *** ***
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
</TABLE>
Net Merchandise Revenue calculated pursuant to Section *** shall be *** for
purposes of determining whether Net Merchandising in a particular Contract Year
equals or exceeds the applicable Guaranteed Annual Payment for such Contract
Year, but shall be *** for purposes of determining Promotional Fees payable to
SportsLine in excess of the applicable Guaranteed Annual Payment.
9.3. Payment Terms. MVP will pay Promotional Fees to SportsLine on a
Quarterly basis, calculated from the Effective Date, as follows: within five (5)
days following the execution of this Agreement, MVP will pay Quarterly
Guaranteed Payments due for the first *** totaling ***. Beginning with the ***,
MVP will pay the Quarterly Guaranteed Payment for such Quarter on the first
business day of such Quarter. If the Promotional Fees owed to SportsLine for a
particular Quarter exceed the Quarterly guaranteed minimum payment made at the
beginning of that Quarter, then MVP will be responsible for and add the
difference to the next payment of guaranteed minimum payments. At the end of
each Contract Year, if the aggregate amount paid to SportsLine for such Contract
Year is greater than the amount of Promotional Fees actually accrued during such
Contract Year, which in turn is greater than the guaranteed minimum payments for
such Contract Year, within thirty (30) days of receiving an invoice from MVP,
SportsLine will refund to MVP the difference between the amount paid and the
amount actually accrued.
9.4. Equity. As additional consideration for the promotion to be
provided by SportsLine pursuant to this Agreement, MVP shall issue to SportsLine
*** of MVP in accordance with that certain *** Agreement of even date herewith.
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10. REPORTING
10.1. Records. During the Term and for at least *** after the
termination or expiration of this Agreement, MVP will maintain complete and
accurate records relating to Promotional Fees and Net Merchandising Revenues.
During the Transition Period and for at least *** thereafter, SportsLine will
maintain complete and accurate records relating to revenues received by
SportsLine from the SportsLine Stores during the Transition Period and the
associated costs and expenses including charge-backs, returns, rebates, sales,
use, and similar taxes, and shipping and handling charges.
10.2. Reports. Within *** following the end of each Quarter, and within
*** following the end of the last Quarter of the Term of this Agreement, MVP
will, consistent with the posted Privacy Policy for the SportsLine Stores and
the posted privacy policy for the applicable Third Party Stores, deliver to
SportsLine a report showing in reasonable detail the computation of the
Promotional Fees that accrued during such Quarter, including ***. Within ***
following the conclusion of the Transition Period, SportsLine will render to MVP
a report showing in reasonable detail the revenue received by SportsLine from
the SportsLine Stores during the Transition Period and the associated costs and
expenses including charge-backs, returns, rebates, sales, use, and similar
taxes, and shipping and handling charges. Such reports may be provided in a
mutually agreed upon electronic format. All reports delivered by MVP to
SportsLine pursuant to this Section 10.2 will be considered Confidential
Information of MVP.
10.3. Asset Certificate. On or before the due date of each Quarterly
Guaranteed Payment, MVP shall deliver to SportsLine a certificate, executed by
an executive officer of MVP, certifying that MVP has sufficient liquid assets,
or specific plans to raise sufficient liquid assets (through additional rounds
of private financing, public offerings of equity or debt securities, or
otherwise), to pay SportsLine the next ***) Quarterly Guaranteed Payments that
will become due.
10.4. SportsLine Audit Rights. During the Term and for ***, upon at
least *** days advance notice and no more than *** per Contract Year, SportsLine
will have the right to have a nationally recognized auditing firm, selected in
SportsLine's sole discretion, inspect MVP's relevant books and records to ensure
the accuracy of Promotional Fees reported by MVP to SportsLine. Any such
inspection will be conducted during normal business hours and in a manner that
does not unreasonably interfere with MVP's normal business operations.
SportsLine will pay the fees and expenses of the auditing firm retained by
SportsLine to perform any such inspection, except as follows: if an audit
documents that MVP has underpaid SportsLine in any calendar year by an amount
equal to *** or more of the amount that should have been paid hereunder, then
MVP shall reimburse SportsLine for its actual reasonable cost incurred to the
auditing firm to conduct such audit, in addition to the amount of the
underpayment.
10.5. MVP Audit Rights. During the Transition Period and for ***
thereafter, upon at least *** advance notice, MVP will have the right to have a
nationally recognized auditing firm, selected in MVP's sole discretion, inspect
SportsLine's relevant books and records to ensure the accuracy of revenues,
costs, and expenses reported by SportsLine to MVP. Any such inspection will be
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conducted during normal business hours and in a manner that does not
unreasonably interfere with SportsLine's normal business operations. MVP will
pay the fees and expenses of the auditing firm retained by MVP to perform any
such inspection except as follows: if an audit documents that SportsLine has
underpaid MVP by an amount equal to *** or more of the amount that should have
been paid hereunder, then SportsLine shall reimburse MVP for its actual
reasonable cost incurred to the independent auditing firm to conduct such audit,
in addition to the amount of the underpayment.
10.6. Confidentiality. In the event of an audit initiated by a party,
neither party's independent auditor shall disclose to the auditing party or any
third party the contents of the audited party's books and records, other than
information necessary to determine the calculation of the correct amount of any
payments required to be made hereunder.
11. CONFIDENTIALITY
11.1. Confidential Information. For purposes of this Agreement,
"Confidential Information" means all information disclosed by either party to
the other party, including 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 or other information designated as "Confidential
Information" by the disclosing party. Without limiting the generality of the
foregoing, the following information will be deemed to be Confidential
Information, even if not expressly so marked: the capabilities, technical
descriptions and source code (if any) relating to either party's released or
unreleased software products or services; the marketing and promotion plans of
each party's products or services; either party's financial information and
business practices or policies; and each party's customer lists and customer
information.
11.2. Exceptions. Confidential Information does not include information
that: (i) is now or subsequently becomes generally available to the public
through no fault or breach on the part of the receiving party; (ii) the
receiving party can demonstrate to have had lawfully in its possession without
an obligation of confidentiality prior to disclosure hereunder; (iii) is
independently developed by the receiving party without the use of any
Confidential Information of the disclosing party as evidenced by written
documentation; or (iv) 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.
11.3. Confidentiality Obligations. Each party agrees that it will (a)
not disclose, without the other party's prior written consent, the other party's
Confidential Information to any third party (other than a party's legal and
financial advisors and lenders as provided in clause (c) below); (b) use the
other party's Confidential Information only to the extent necessary to perform
its obligations or exercise its rights under this Agreement; (c) disclose the
other party's Confidential Information only to those of its employees, and legal
and financial advisors and lenders who need to know such information for
purposes of this Agreement and who are bound by confidentiality obligations no
less restrictive than this Section 11; and (d) protect all Confidential
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Information of the other party from unauthorized use, access, or disclosure in
the same manner as it protects its own confidential information of a similar
nature, and in no event with less than reasonable care. Notwithstanding either
party may disclose the terms of Section 5.2 hereof to ***, and either party may
disclose the terms of this Agreement to the financial advisors of the acquiring
party in connection with a contemplated Change in Control of such party
(provided that any third party to whom the terms of this Agreement are to be
disclosed signs a confidentiality agreement no less restrictive than those set
forth in this Section 11).
11.4. Mandatory Disclosure. If the receiving party receives notice that
it may be required or ordered to disclose any Confidential Information in
connection with legal proceedings or pursuant to a subpoena, order or a
requirement or an official request issued by a court of competent jurisdiction
or by a judicial, administrative, legislative, regulatory or self regulating
authority or body, it shall cooperate with the other to seek confidential
treatment of such Confidential Information and shall uses its best efforts to
give the disclosing party sufficient prior written notice in order to contest
such requirement or order. Nothing herein shall be construed to impose any
obligation to disclose any Confidential Information. If this Agreement or any of
its terms or any other Confidential Information must be disclosed in connection
with legal proceedings or pursuant to a subpoena, order or a requirement or an
official request issued by a court of competent jurisdiction or by a judicial,
administrative, legislative, regulatory or self regulating authority or body,
the disclosing party shall (i) first give written notice of the intended
disclosure to the other party, within a reasonable time prior to the time when
disclosure is to be made, (ii) consult with the other party on the advisability
of taking steps to resist or narrow such request, and (iii) if disclosure is
required or deemed advisable, cooperate with the other party in any attempt that
it may make to obtain an order or other reliable assurance that confidential
treatment will be accorded to designated portions of the Confidential
Information 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.
11.5. Return of Information. Each party will, except to the extent
inconsistent with (i) its use in connection with legal proceedings, or (ii)
applicable law, regulations, rules or official requests, at the disclosing
party's election, destroy or return to the other party any tangible copies of
the other party's Confidential Information, and permanently delete all
electronic copies of the other party's Confidential Information, in such party's
possession or control at the request of the other party and upon termination of
this Agreement, and will certify in writing to the other party that it has done
so.
12. TERM AND TERMINATION
12.1. Term. The term of this Agreement will be ten (10) years from the
Effective Date (the "Term").
12.2. Termination Rights
(a) Notwithstanding Section 12.1, either party may terminate
this Agreement at any time upon written notice to the other party if:
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(i) the other party has committed a material
breach of this Agreement, has failed to cure
such breach within *** days of receipt of
notice from the terminating party specifying
the breach, and the breach remains uncured
at the time of termination; or
(ii) the other party ceases to conduct business,
becomes insolvent, makes a general
assignment for the benefit of its creditors,
has a receiver or custodian appointed for
it, or becomes the subject of voluntary or
involuntary bankruptcy or liquidation
proceedings.
(b) In addition to the right of termination in sub-section
(a), MVP will have the right to terminate this Agreement, upon written
notice to SportsLine (or its successor), if SportsLine enters into a
Change in Control transaction with an MVP Competitor, and SportsLine
will have the right to terminate this Agreement, upon written notice to
MVP (or its successor), if MVP enters into a Change in Control
transaction with a SportsLine Competitor.
(c) Any breach of Sections ***, will be considered a material
breach of this Agreement; provided, however, that the foregoing will
not be construed to imply that breaches of other provisions of this
Agreement are not material.
(d) The parties acknowledge that a series of breaches of
sections *** (x) of which a *** and the breaching party has not taken
reasonable steps to prevent, and (y) *** shall give rise to a right of
termination by the non-breaching party without a right of the breaching
party to cure the breach, notwithstanding Section 12.2(a)(i).
12.3. Effects of Termination.
(a) General. Upon expiration or termination of this Agreement
for any reason, all licenses granted in this Agreement will immediately
terminate and the parties will promptly remove the links between their
respective Web sites and wind up operations in accordance with an exit
plan to be mutually agreed upon by the parties, which shall, at a
minimum, include assistance with the migration of *** and similar data
related to Third Party Stores. Within *** days after the expiration or
termination of this Agreement, the parties will settle up and pay any
net amounts owed from one party to the other in connection with this
Agreement.
(b) Upon a Change of Control. Upon early termination of the
Agreement pursuant to Section 12.2 (except for termination due to
breach by SportsLine or SportsLine's entry into a Change in Control
transaction with an MVP Competitor), MVP will grant a nonexclusive,
nontransferable license to SportsLine to reproduce, distribute, create
derivative works of, publicly perform, publicly display, and digitally
perform the software (including the HTML code) as needed to operate the
SportsLine Stores, subject to any third party authorizations or
consents necessary to sublicense third party software or content, for a
period of one (1) year following the effective date of termination.
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(c) Section *** Termination. In the event of a termination of
this Agreement pursuant to *** resulting from a breach of *** by ***,
all unpaid *** due as of the effective date of termination or to become
due during the remainder of the Term shall accelerate and become
immediately due and payable upon the effective date of termination. In
the event of a termination of this Agreement pursuant to *** resulting
from a breach of *** by ***, Section *** will survive such termination
and *** will be entitled to a *** made by ***.
12.4. Survival. Sections 1 (Definitions), 8.3 (Restrictions), 11
(Confidentiality), 12.3 (Effects of Termination), 13 (Representations and
Warranties), 14 (Indemnification), 15 (Dispute Resolution), and 16 (General)
will survive the expiration or termination of this Agreement. Sections 10.1
(Records), 10.2 (Reports), and 10.3 (SportsLine Audit Rights) will survive the
expiration or termination of this Agreement for the periods of time set forth in
such Sections.
13. REPRESENTATIONS AND WARRANTIES.
13.1. Each Party. Each party represents and warrants to the other party
that (a) it has and will have full right, power, and authority to enter into
this Agreement and perform its obligations under this Agreement; (b) that its
execution and performance of this Agreement will not breach or cause a conflict
with any other agreement to which it is party; and (c) any Sports Content,
information and materials provided by one party to the other party and the other
party's permitted use thereof shall not infringe upon any third party's rights
or contravene any applicable laws or regulations.
13.2. SportsLine. SportsLine represents and warrants that:
(a) Exhibit A contains a complete and accurate list of all
active URLs upon which are hosted discrete SportsLine Stores (i.e.,
excluded from the list are URLs which may direct or redirect traffic to
a URL upon which is hosted a SportsLine Store, but which itself is
merely an intermediary address, and URLs of the stores operated by the
subsidiaries of SportsLine being acquired by MVP) as of the date of
execution of this Agreement.
(b) Exhibit E contains a complete and accurate list of all
active URLs upon which are hosted discrete Third Party Stores (i.e.,
excluded from the list are URLs which may direct or redirect traffic to
a URL upon which is hosted a Third Party Store, but which itself is
merely an intermediary address) as of the date of execution of this
Agreement, and
(c) Exhibit F contains a complete and accurate list of all
agreements between SportsLine and a third party in effect as of the
Effective Date relating to Third Party Stores (other than agreements
involving the subsidiaries of SportsLine being acquired by MVP).
13.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 13,
NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY AND
EACH PARTY SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING
THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
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14. INDEMNIFICATION
14.1. By SportsLine. Subject to and in accordance with Section 14.3,
SportsLine will indemnify and hold MVP harmless from and against all third-party
claims, suits or actions ("Third Party Claims") brought against or suffered or
incurred by MVP that result from or are attributable to (a) ***; (b) ***; (c)
***; or (d) ***.
14.2. By MVP. Subject to and in accordance with Section 14.3, MVP will
indemnify and hold SportsLine harmless from and against all Third Party Claims
brought against or suffered or incurred by SportsLine that result from or are
attributable to:
(a) ***(b) ***(c) ***(d) ***(e) ***(f) ***(g) ***(h) *** or ***(i) ***
14.3. Conditions Precedent to Duty of Indemnification. In the event
of any Third Party Claim for which one party (the "Indemnified Party") is
entitled to indemnification by the other party (the "Indemnifying Party") under
this Section 14, the Indemnifying Party will defend the Third Party Claim at its
own expense with counsel of its own choice and will pay all amounts agreed to in
a monetary settlement of the Third Party Claim and all damages awarded as a
final judgment by a court of competent jurisdiction, subject to the conditions
that (i) the Indemnified Party gives the Indemnifying Party prompt written
notice of the Third Party Claim, (ii) the Indemnified Party gives the
Indemnifying Party sole control of the defense and settlement of the Third Party
Claim, and (iii) the Indemnified Party cooperates with the Indemnifying Party,
at the Indemnifying Party's reasonable request and expense, in the defense or
settlement of the Claim. The Indemnified Party may, at its own expense,
participate in any such Third Party Claim with counsel of its own choice. The
Indemnifying Party must obtain the prior written approval of the Indemnified
Party before entering into or making any settlement, compromise, admission, or
acknowledgment (whether by agreement, consent judgment or otherwise) of the
validity of such claim or action, which approval may be conditioned upon the
procuring a release of the Indemnified Party and its Affiliates and their
respective officers, directors and employees and the confidentiality of any such
settlement or compromise, and which approval will not be unreasonably withheld.
14.4. Insurance. MVP shall provide and maintain, at its own expense,
general commercial liability insurance, including product liability and
advertising injury coverage, with aggregate limits of not less than ***
underwritten by companies rated A or better by A.M. Best, AA or better by
Moody's or AA or better by Standard & Poors, and shall cause such policy or
policies to be endorsed to state that SportsLine is an additional named insured
thereunder. A certificate of insurance evidencing such coverage shall be
furnished to SportsLine within *** calendar days of the full execution of this
Agreement, and within *** calendar days after any renewal or replacement
thereof. MVP shall make all such policies available to SportsLine for inspection
upon SportsLine's request. Such insurance policy or policies shall provide that
the insurer shall not terminate or materially modify such policy or remove
SportsLine as additional named insured without prior written notice to
SportsLine at least *** calendar days in advance thereof.
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
15. Dispute Resolution
15.1. General. The parties shall act in good faith and use commercially
reasonable efforts to promptly resolve any claim, dispute, controversy or
disagreement (each a "Dispute") between the parties or any of their respective
Affiliates under or related to this Agreement.
15.2. Second Level Managers. If the parties cannot resolve the Dispute
within a reasonable time frame, the Dispute shall be submitted in writing to
Brent Hill (or another executive of MVP of Vice President level or above, as
selected by MVP) and Dan Head (or another executive of SportsLine of Vice
President level or above, as selected by SportsLine) (each, a "Second Level
Manager"; collectively, the "Second Level Management") for resolution
exclusively (subject to Section 15.5 below) for a period of *** days after such
Dispute is submitted to them.
15.3. First Level Managers. If the Second Level Managers are unable to
resolve such dispute within such *** day period, the Dispute shall be submitted
in writing to John Costello (or his successor, as selected by MVP) and Andrew
Sturner (or his successor of equal or greater seniority, as selected by
SportsLine) (collectively, the "First Level Managers" and together with the
Second Level Managers, the "Management Committee") for resolution exclusively
(subject to Section 15.5 below) for *** days after the Dispute was submitted to
the First Level Managers. The Management Committee will have the final and
exclusive right to resolve Disputes arising from any provision of this Agreement
which expressly or implicitly provides for the parties to reach mutual agreement
as to certain terms.
15.4. Mediation. If the First Level Managers are unable to resolve the
Dispute during such *** day period to both parties' satisfaction, then the
dissatisfied party may submit the Dispute to non-binding mediation as follows.
The party that did not submit the Dispute to mediation shall have *** days to
select in good faith an impartial unaffiliated third party to act as mediator
(the "Mediator") and the parties shall submit the Dispute to the Mediator for
resolution. For a period of *** days, the Mediator shall have the exclusive
right to mediate the Dispute (subject to the exclusive right of the Management
Committee resolve certain Disputes as set forth above). Each party shall pay its
own expenses of witnesses and all other expenses and costs in connection with
the presentation of such party's case (collectively, "Attorneys' Fees"). The
remaining costs of the mediation, including fees of the Mediator, if any, costs
of records or transcripts and administrative fees (collectively, "Mediation
Costs") shall be born equally by the parties.
15.5. Continued Performance. During the Dispute resolution process set
forth above, each party shall in good faith continue to perform its obligations
under this Agreement in accordance with the terms and conditions of this
Agreement. Each party agrees that it shall submit any and all Disputes for
resolution through the Management Committee and the Mediator prior to commencing
litigation regarding such Dispute, provided that either party shall be entitled
to seek solely injunctive relief during the pendency of any such mediation.
15.6. Unresolved Disputes. Any suit or action relating to a Dispute
that is not resolved pursuant to the foregoing procedures shall be brought in a
federal court in the State of Florida (or other
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
state to which SportsLine may move its principal place of business) if commenced
by MVP and in the State of Illinois (or other state to which MVP may move its
principal place of business) if commenced by SportsLine. Each party consents to
the exclusive jurisdiction of the United States District Court for the Southern
District of Florida with respect to litigation wherein MVP is the Plaintiff, and
each party consents to the exclusive jurisdiction of the United States District
Court for the Northern District of Illinois with respect to litigation wherein
SportsLine is the plaintiff.
16. GENERAL
16.1. Disclaimer of Consequential Damages. NEITHER PARTY WILL BE LIABLE
TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING ANY LOST PROFITS) ARISING FROM OR
RELATING TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE
CLAIM OR WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL NOT BE
CONSTRUED TO LIMIT EITHER PARTY'S LIABILITY OR OBLIGATIONS UNDER SECTIONS 11
(CONFIDENTIALITY) OR 14 (INDEMNIFICATION).
16.2. Force Majeure. If performance hereunder, including MVP's
compliance with the service levels set forth on Exhibit C, is prevented,
restricted or interfered with by any act or condition whatsoever beyond the
reasonable control of a party and without such party's fault or negligence, the
party so affected, upon giving prompt written notice to the other party, will be
excused from such performance solely to the extent of such prevention,
restriction or interference; provided, however, the non-affected party may
terminate this Agreement without further obligation or liability of any kind
upon written notice to the affected party if the affected party's failure to
perform or delay in performance would otherwise constitute a material breach of
this Agreement and continues uncured for a period of forty-five (45) days from
the time such party receives notice of the force majeure event from the affected
party. Each party acknowledges that the operation of the other party's Web site
and services may be interfered with by numerous factors beyond a party's
control.
16.3. Relationship of Parties. Nothing in this Agreement will be
construed as creating any agency, partnership, or other form of legal
association or joint enterprise between the parties. Neither party will have the
authority to act or create any binding obligation on behalf of the other party,
and neither party will represent to any third party that it has the authority to
act or create any binding obligation on behalf of the other party. Each party's
personnel are not employees or agents of the other parties for federal, state or
other taxes or any other purposes whatsoever, and are not entitled to
compensation, employee benefits or other incidents of employment from any of the
other parties.
16.4. Notices. All notices, consents, waivers, and other communications
intended to have legal effect under this Agreement must be in writing, must be
delivered to the other party at the address set forth below by personal
delivery, certified or registered mail (postage pre-paid), confirmed facsimile
(with a copy sent by other means authorized in this section), or a nationally
recognized overnight courier, and will be effective upon receipt (or when
delivery is refused). Each party may change its address for receipt of notices
by giving notice of the new address to the other party.
28
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
<TABLE>
<CAPTION>
<S> <C> <C>
If to MVP, to: If to SportsLine, to:
MVP.com, Inc. SportsLine.com, Inc.
600 W. Fulton St., Suite 502 6340 N.W. 5th Way
Chicago, IL 60661 Ft. Lauderdale, FL 33309
Attn: John Costello Attn: President
Fax: (312) 715-9891 Fax: (954) 351-9175
With a copy to: With a copy to:
Cooley Godward LLP SportsLine.com, Inc.
5 Palo Alto Square 6340 N.W. 5th Way
3000 El Camino Real Ft. Lauderdale, FL 33309
Palo Alto, CA 94306 Attn: VP, Legal & Business Affairs
Attn: Eric Reifschneider, Esq.
Fax: (650) 857-0663 Fax: (954) 351-0368
</TABLE>
16.5. Governing Law. This Agreement will be governed by and interpreted
in accordance with the laws of the State of *** as such laws apply to contracts
made between *** residents to be performed entirely within ***.
16.6. Injunctive Relief. It is understood and agreed that,
notwithstanding any other provision of this Agreement, any breach of *** by
either party will cause irreparable damage for which recovery of money damages
would be inadequate, and that the non-breaching party will therefore be entitled
to seek timely injunctive relief as permitted under applicable law to protect
such party's rights, in addition to any and all remedies available at law or in
equity.
16.7. Waiver. The failure of either party to require performance by the
other party of any provision of this Agreement will not affect such party's
right to require such performance at any time thereafter; nor will the waiver by
either party of a breach of any provision of this Agreement be taken or held to
be a waiver of the provision itself.
16.8. Severability. If any provision of this Agreement is unenforceable
or invalid under any applicable law or is so held by applicable court decision,
such unenforceability or invalidity will not render this Agreement unenforceable
or invalid as a whole, and such provision will be changed and interpreted so as
to best accomplish the objectives of such unenforceable or invalid provision
within the limits of applicable law or applicable court decisions.
16.9. Assignment. Neither this Agreement nor any rights or obligations
of either party under this Agreement may be assigned in whole or in part without
the prior written consent of the other party except in connection with a sale of
all or substantially all of the assets of the assigning party, provided that the
party to whom this agreement is to be assigned must agree to be bound by the
terms and conditions of this Agreement. Any attempted assignment in violation of
the preceding sentence will be void. Notwithstanding the foregoing, nothing in
29
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION.
this Section 16.9 prevents either party from engaging any third-party
subcontractors to fulfill any of its duties or obligations under this Agreement
as otherwise permitted hereunder, provided, however, that such party remains
fully liable for the fulfillment of such duties or obligations.
16.10. Publicity. It is contemplated that the parties will issue a
joint press release announcing the execution of this Agreement, the sale of
SportsLine's subsidiaries pursuant to that certain Stock Purchase Agreement of
even date herewith, and the issuance of MVP Series D preferred stock to
SportsLine and ***. Except as specifically set forth in this Agreement, neither
party shall use the name, service or trademarks, or refer to the other, its
products and/or services in any advertising, publicity releases or marketing
communication, without prior written approval of such other party which shall
not be unreasonably withheld.
16.11. Construction. The section headings appearing in this Agreement
are inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or extent of such section or in any way affect
this Agreement. Unless otherwise expressly stated, when used in this Agreement
the word "including" means "including but not limited to." Each party represents
that it has had the opportunity to participate in the preparation of this
Agreement and hence the parties agree that the rule of construction that
ambiguities be resolved against the drafting party will not apply to this
Agreement. This Agreement may be executed in counterparts and may be amended
only in a document signed by both parties.
16.12. Entire Agreement and Amendment. The Exhibits attached to this
Agreement are incorporated by reference and constitute a part of this Agreement.
Except for the documents governing the Series D preferred stock to be issued to
SportsLine pursuant to Section 9.4, this Agreement completely and exclusively
states the agreement of the parties regarding its subject matter. It supersedes,
and its terms govern, all prior understandings, agreements, term sheets, letters
of intent, memoranda of understanding, or other communications between the
parties, oral or written, regarding such subject matter.
[Signature Page Follows]
30
<PAGE>
[Signature Page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set
forth below.
SPORTSLINE.COM, INC. MVP.COM, INC.
By: /s/ Michael Levy By: /s/ John Costello
- -------------------- ---------------------
Name: Michael Levy Name: John Costello
Title: President & Chief Executive Officer Title: President & Chief Executive
Officer
31
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-2000
<PERIOD-END> DEC-31-1999
<CASH> 95,820,000
<SECURITIES> 49,381,000
<RECEIVABLES> 19,144,000
<ALLOWANCES> (1,051,000)
<INVENTORY> 0
<CURRENT-ASSETS> 196,336,000
<PP&E> 24,692,000
<DEPRECIATION> 9,601,000
<TOTAL-ASSETS> 433,932,000
<CURRENT-LIABILITIES> 52,969,000
<BONDS> 19,608,000
0
0
<COMMON> 261,000
<OTHER-SE> 347,839,000
<TOTAL-LIABILITY-AND-EQUITY> 433,932,000
<SALES> 22,678,000
<TOTAL-REVENUES> 22,678,000
<CGS> 8,654,000
<TOTAL-COSTS> 32,353,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 289,000
<INCOME-PRETAX> (7,196,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (7,196,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (7,196,000)
<EPS-BASIC> (0.28)
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