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EXHIBIT 10.14
*CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL TREATMENT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
INFOSEEK CORPORATION
SERIES E PREFERRED
STOCK PURCHASE AGREEMENT
MARCH 29, 1996
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TABLE OF CONTENTS
Page
1. Purchase and Sale of Stock....................................... 1
1.1 Sale and Issuance of Series E Preferred Stock........... 1
1.2 Closing................................................. 1
1.3 Subsequent Closings..................................... 1
2. Representations and Warranties of the Company.................... 2
2.1 Organization, Good Standing and Qualification........... 2
2.2 Capitalization and Voting Rights........................ 2
2.3 Subsidiaries............................................ 3
2.4 Authorization........................................... 3
2.5 Valid Issuance of Preferred and Common Stock............ 4
2.6 Governmental Consents................................... 4
2.7 Litigation.............................................. 4
2.8 Confidentiality and Intellectual Property Agreement..... 5
2.9 Patents and Trademarks.................................. 5
2.10 Compliance with Other Instruments....................... 6
2.11 Agreements; Action...................................... 7
2.12 Related-Party Transactions.............................. 8
2.13 Permits................................................. 8
2.14 Disclosure.............................................. 8
2.15 Registration Rights..................................... 9
2.16 Corporate Documents..................................... 9
2.17 Title to Property and Assets............................ 9
2.18 Financial Statements.................................... 9
2.19 Changes................................................. 9
2.20 Insurance............................................... 10
2.21 Minute Books............................................ 10
2.22 Section 83(b) Elections................................. 10
2.23 Employee Benefit Plans.................................. 11
2.24 Taxes................................................... 12
2.25 Environmental........................................... 13
2.26 The Company's Internet Services......................... 13
2.27 Ultraseek Technology.................................... 13
3. Representations and Warranties of Investor....................... 14
3.1 Authorization........................................... 14
3.2 Purchase Entirely for Own Account....................... 14
3.3 Disclosure of Information............................... 14
3.4 Investment Experience................................... 15
3.5 Accredited Investor..................................... 15
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3.6 Restricted Securities..................................... 15
3.7 Compliance with Foreign Law............................... 15
3.8 Further Limitations on Disposition........................ 15
3.9 Telecommunications Company................................ 16
3.10 Legends................................................... 16
4. California Commissioner of Corporations............................ 16
4.1 Corporate Securities Law.................................. 16
5. Conditions of Investor's Obligations at Closing.................... 17
5.1 Representations and Warranties............................ 17
5.2 Performance............................................... 17
5.3 Restated Articles and Amended Bylaws Effective............ 17
5.4 Compliance Certificate.................................... 17
5.5 Qualifications............................................ 17
5.6 Proceedings and Documents................................. 17
5.7 Investors' Rights Agreement............................... 18
5.8 Opinion of Company Counsel................................ 18
5.9 Directors................................................. 18
5.10 Due Diligence............................................. 18
5.11 Amendment to Co-Sale Agreements........................... 18
6. Conditions of the Company's Obligations at Closing................. 18
6.1 Representations and Warranties............................ 18
6.2 Payment of Purchase Price................................. 18
6.3 Restated Articles and Amended Bylaws Effective............ 18
6.4 Qualifications............................................ 19
6.5 Investors' Rights Agreement............................... 19
7. Indemnification Obligations........................................ 19
7.1 Indemnification........................................... 19
7.2 Indemnified Claims........................................ 20
8. Miscellaneous...................................................... 20
8.1 Amended Bylaws............................................ 20
8.2 Directors and Officers Insurance.......................... 20
8.3 Survival of Warranties.................................... 20
8.4 Successors and Assigns.................................... 21
8.5 Governing Law............................................. 21
8.6 Cumulative................................................ 21
8.7 Counterparts/Facsimile.................................... 21
8.8 Titles and Subtitles...................................... 21
8.9 Notices................................................... 21
8.10 Finder's Fee.............................................. 21
8.11 Expenses.................................................. 22
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8.12 Amendments and Waivers.................................... 22
8.13 Severability.............................................. 22
8.14 Entire Agreement.......................................... 22
8.15 Termination............................................... 22
SCHEDULE A - Schedule of Investors
SCHEDULE B - Schedule of Subsequent Purchasers
SCHEDULE C - List of Shareholders
SCHEDULE 2.26A - Total Queries and Browses
SCHEDULE 2.26B - List of Advertisers
EXHIBIT A - Amended and Restated Articles of Incorporation
EXHIBIT B - Second Amended and Restated Investors' Rights Agreement
EXHIBIT C - Schedule of Exceptions
EXHIBIT D - Bylaws, as amended
EXHIBIT E - Second Amended and Restated Agreement Regarding Co-
Sale
EXHIBIT F - Second Amended and Restated Co-Sale Agreement
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SERIES E PREFERRED
STOCK PURCHASE AGREEMENT
THIS SERIES E PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is
made as of the 29th day of March, 1996, by and among Infoseek Corporation, a
California corporation (the "Company"), the Investors listed on Schedule A
hereto and each subsequent purchaser set forth on Schedule B hereto (the
Investors on Schedule A and subsequent purchasers on Schedule B each referred to
herein as "Investor" and collectively, the "Investors").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Series E Preferred Stock.
(a) The Company shall adopt and file with the Secretary
of State of the State of California before the Closing (as defined below) the
Amended and Restated Articles of Incorporation in the form attached hereto as
Exhibit A (the "Restated Articles").
(b) Subject to the terms and conditions of this
Agreement, the Investors agree to purchase at the Closing, and the Company
agrees to sell and issue to the Investors at the Closing, that number of shares
of the Company's Series E Preferred Stock at a purchase price equal to $6.00 per
share, for an aggregate purchase price as set forth on Schedule A hereto.
1.2 Closing. The purchase and sale of the Series E
Preferred Stock shall take place at the offices of Brobeck, Phleger & Harrison
LLP, Two Embarcadero Place, 2200 Geng Road, Palo Alto, California, at 1:00 p.m.,
Pacific Standard Time, on March 29, 1996 or at such other time and place on or
before March 31, 1996, as the Company and with respect to each Investor listed
on Schedule A hereto, such Investor mutually agree (which time and place with
respect to each Investor are designated as the "Closing"). At the Closing the
Company shall deliver to each Investor a certificate representing the shares of
Series E Preferred Stock that such Investor is purchasing hereunder against
payment of the purchase price therefor by check or wire transfer.
1.3 Subsequent Closings. Subject to Section 2.2 of that
certain Second Amended and Restated Investors' Rights Agreement of even date
herewith, by and among the Company, the Investors, and the other parties listed
therein, the form of which is attached hereto as Exhibit B (the "Investors'
Rights Agreement"), the Company may sell up to the balance of the authorized
number of shares of Series E Preferred Stock not sold at the Closing (a) to such
other persons or entities as the Company may
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determine and (b) to any party who holds a right of participation pursuant to
Section 2.2 of the Investors' Rights Agreement. Any such sale shall be at the
same price per share and upon the same terms and conditions as those set forth
herein and shall be consummated within one (1) year from the date hereof. The
initial Closing and any subsequent closings shall hereafter be collectively
referred to as the "Closing" pursuant to this Agreement.
2. Representations and Warranties of the Company. The
Company hereby represents and warrants to Investor that, except as set forth on
a schedule of exceptions dated the date of this Agreement and attached hereto as
Exhibit C (the "Schedule of Exceptions"), furnished to each Investor and special
counsel for Investor specifically identifying the relevant subparagraph hereof,
which disclosure shall be deemed to be representations and warranties as if made
hereunder:
2.1 Organization, Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of California and has all requisite corporate power
and authority to own, lease and operate its properties and assets, and to carry
on its business as now and heretofore conducted and as proposed to be conducted.
The Company is duly qualified to transact business and is in good standing in
each jurisdiction in which the failure to so qualify would have a material
adverse effect on its business, results of operations, financial condition or
properties.
2.2 Capitalization and Voting Rights. The authorized
capital of the Company consists, or will consist immediately prior to the
Closing, of:
(i) Preferred Stock. 27,890,378 shares of Preferred
Stock (the "Preferred Stock"), of which: (A) 9,847,816 shares have been
designated Series A Preferred Stock, all of which are outstanding; (B) 3,459,220
shares have been designated Series B Preferred Stock, all of which are
outstanding; (C) 7,600,009 shares have been designated Series C Preferred Stock,
7,466,676 of which are outstanding; (D) 3,650,000 shares have been designated
Series D Preferred Stock, none of which are outstanding; and (E) 3,333,333
shares have been designated Series E Preferred Stock, up to all of which may be
sold pursuant to this Agreement. The rights, preferences and privileges of the
Preferred Stock will be as stated in the Company's Restated Articles.
(ii) Common Stock. 45,000,000 shares of common stock
("Common Stock"), of which 5,359,119 shares are issued and outstanding.
(iii) All outstanding shares of Series A, B and C
Preferred Stock and Common Stock are owned by the shareholders and in the
numbers specified on Schedule C hereto, are duly and validly authorized and
issued, fully paid and nonassessable, and were issued in accordance with the
registration or qualification provisions of the Securities Act of 1933, as
amended (the "Act") and any relevant state securities laws or pursuant to valid
exemptions therefrom.
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(iv) Except for (A) the conversion privileges of the
Preferred Stock, (B) the rights granted pursuant to that certain Amended and
Restated Put Option Agreement dated as of May 4, 1995, by and among the Company
and the other parties listed therein (the "Put Option Agreement"), (C) the
rights provided in Section 2.2 of the Investors' Rights Agreement, (D) 133,333
shares of Series C Preferred Stock reserved for issuance to an equipment lessor
of the Company upon exercise of outstanding warrants to purchase such shares and
(E) 5,818,203 shares of Common Stock reserved for issuance to employees,
directors and officers of, and consultants to, the Company upon exercise of
outstanding options, there are no outstanding options, warrants, rights
(including conversion or preemptive rights) or agreements for the purchase or
acquisition from the Company of any shares of its capital stock. The Company has
reserved an additional 1,421,798 shares of its Common Stock for issuance to
employees, directors, officers of and consultants to the Company pursuant to the
Infoseek Corporation Stock Option Plan (the "Option Plan"). The Company has to
date adopted no other employee stock plan. The Company is not a party or subject
to any agreement or understanding, and, to the best of the Company's knowledge,
there is no agreement or understanding between any other persons or entities
that affects or relates to the voting or giving of written consents with respect
to any security or the voting by a director of the Company, including, without
limitation, any voting trusts or agreements, shareholders' agreements, pledge
agreements, or proxies relating to the securities of the Company. The Company
has no obligation (contingent or otherwise) to purchase, redeem or otherwise
acquire any of its securities or any interest therein or to pay any dividend or
make any other distribution, except as provided in the Restated Articles or the
Investors' Rights Agreement.
2.3 Subsidiaries. The Company does not presently own or
control, directly or indirectly, and has not entered into any agreement to
acquire any interest in any other corporation, association, or other business
entity. The Company is not a participant in any joint venture, partnership, or
similar arrangement.
2.4 Authorization. All corporate action on the part of
the Company, its officers, directors and shareholders necessary for the
adoption, authorization, execution, filing (where applicable) and delivery of
the Restated Articles, this Agreement, the Investors' Rights Agreement, the
Second Amended and Restated Agreement Regarding Co-Sale of even date herewith by
and among the Company, the Investors and Founders listed on Schedule A and B
thereto, respectively, and attached hereto as Exhibit E (the "Amended Agreement
Regarding Co-Sale) and the Second Amended and Restated Co- Sale Agreement, dated
as of even date herewith by and among the Founder listed therein and the
Investors listed on Schedule A thereto and attached hereto as Exhibit F (the
"Amended Co-Sale Agreement"), the performance of all obligations of the Company
hereunder and thereunder, and the authorization, issuance (or reservation for
issuance), sale and delivery of the Series E Preferred Stock being sold
hereunder, and the Common Stock issuable upon conversion of the Series E
Preferred Stock, has been taken or will be taken prior to the Closing. This
Agreement, the Investors' Rights Agreement and the Amended Agreement Regarding
Co-Sale constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, except (i) as
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enforceability may be limited by bankruptcy, insolvency and other laws now or
hereafter in effect relating to or generally affecting creditors' rights and
general principles of equity, (ii) that the remedies of specific performance and
injunctive and other forms of equitable relief are subject to certain equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and (iii) as rights to indemnity under the Investors' Rights
Agreement, may be limited by federal or state securities laws.
2.5 Valid Issuance of Preferred and Common Stock. The
Series E Preferred Stock that is being purchased by the Investors hereunder,
when issued, sold and delivered in accordance with the terms of this Agreement
for the consideration expressed herein, will be duly and validly issued, fully
paid, and nonassessable and, based in part upon the representations of the
Investors in this Agreement, will be issued in compliance with all applicable
federal and state securities laws. The Common Stock issuable upon conversion of
the Series E Preferred Stock purchased under this Agreement has been duly and
validly reserved for issuance and, upon issuance in accordance with the terms of
the Restated Articles, will be duly and validly issued, fully paid, and
nonassessable and would, if issued as of this date, be in compliance with all
applicable federal and state securities laws. The Series E Preferred Stock when
issued, sold and delivered in accordance with this Agreement, and the Common
Stock issuable upon conversion of the Series E Preferred Stock purchased under
this Agreement, will be free and clear of any liens, charges, restrictions,
claims and encumbrances except as set forth in this Agreement and the Investors'
Rights Agreement, and will not be subject to any preemptive rights or any right
of first refusal or other right in favor of any person or entity, which has not
been waived or canceled.
2.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the execution, delivery and
performance of this Agreement, the Investors' Rights Agreement, the Amended
Agreement Regarding Co-Sale, the offer, sale or issuance of the Series E
Preferred Stock (or Common Stock issuable upon conversion thereof) or the
consummation of the transactions contemplated by this Agreement, except for (i)
any required filing pursuant to Section 25102(f) of the California Corporate
Securities Law of 1968, as amended, and the rules thereunder, which filing, if
required, will be effected within 15 days of the sale of the Series E Preferred
Stock hereunder and (ii) the filing of the Restated Articles in the office of
the Secretary of State of the State of California.
2.7 Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against the Company including, but
not limited to, those that question the validity of this Agreement, the
Investors' Rights Agreement or the right of the Company to enter into any such
agreement, or to consummate the transactions contemplated hereby or thereby, or
that might result, either individually or in the aggregate, in any material
adverse changes in the assets, condition, affairs or prospects of
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the Company, financially or otherwise, or any change in the current equity
ownership of the Company. The foregoing includes, without limitation, actions,
suits, proceedings or investigations pending or threatened involving the prior
employment of any of the Company's employees, their use in connection with the
Company's business of any information or techniques allegedly proprietary to any
of their former employers, or their obligations under any agreements with prior
employers. The Company is not a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or that the Company intends to initiate.
2.8 Confidentiality and Intellectual Property Agreement.
Each employee, officer and consultant of the Company has executed a
Confidentiality and Intellectual Property Agreement in substantially the form
provided to special counsel to Investor, and to the best knowledge of the
Company, none of its employees, officers or consultants are in violation
thereof. To the best of the Company's knowledge, no person employed by the
Company has disclosed or may disclose any trade secret or any information or
documentation proprietary to any former employer, and no person has violated or
may violate any employment contract, non-competition agreement, confidential
relationship or any restrictive covenant which such person may have had with any
third party, in connection with the development, manufacture or sale of any
product or proposed product or the development or sale of any service or
proposed service of the Company, and the Company has no reason to believe there
will be any such violation. Each holder of Common Stock of the Company has
entered into a Stock Purchase Agreement in substantially the form provided to
special counsel to Investor. Each holder of options to purchase Common Stock of
the Company has entered into an option agreement in the form provided to the
Investor. Each of such agreements in this Section 2.8 shall be in full force and
effect as of the Closing.
2.9 Patents and Trademarks. Set forth on the Schedule of
Exceptions is a list and brief description of all patents, trademarks, service
marks, trade names, copyrights, and all applications therefor, that are issued,
registered or filed in the name of the Company, and all software developed by or
for the Company (the "Company Intellectual Property"). The Company owns all
title and interest, free and clear of liens and encumbrances, in and to the
Company Intellectual Property and all software and technology used in or
necessary for its business as now conducted or heretofore conducted and as
proposed to be conducted, including without limitation all software described in
the Schedule of Exceptions and all software and technology relating to the
provision of services under the brand "Infoseek Netsearch" and "Infoseek Guide"
(collectively, the "Company Technology"), except such third party software
(other than commercially available shrinkwrap consumer application software) and
technology licensed by the Company as set forth in the Schedule of Exceptions
(the "Third Party Licenses"). The use of the Company Intellectual Property and
Company Technology: (i) does not infringe any copyrights or trade secret rights
of any third party; and (ii) to the best of the Company's knowledge after
reasonable investigation, does not infringe any patents, patent rights,
trademarks, service marks or trade names of any third party. The
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Third Party Licenses are valid and in full force and effect. There are no
pending claims, and the Company has not received any communications or
information, that: (i) challenges the scope, validity, enforceability, or the
Company's ownership of the Company Intellectual Property and/or the Company
Technology; or (ii) alleging that the Company has violated or infringed or, by
conducting its business as proposed, would violate or infringe any patents,
patent rights, trademarks, services marks, trade names, copyrights, trade
secrets, or other proprietary right of any third party. The Company is not aware
that any of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with the use of his or her best efforts to promote the interests of
the Company or that would conflict with the Company's business as proposed to be
conducted. Neither the carrying on of the Company's business by the employees of
the Company, nor the conduct of the Company's business as proposed, will, to the
best of the Company's knowledge, conflict with or result in a breach of the
terms, conditions, or provisions of, or constitute a default under, any
contract, covenant or instrument under which any of such employees is now
obligated. The Company does not believe it is or will be necessary to utilize
any inventions of any of its employees (or people it currently intends to hire)
made prior to their employment by the Company. To the best of the Company's
knowledge, no other person or entity has violated or infringed or, by conducting
its business as proposed, would violate or infringe any patents, patent rights,
trademarks, service marks, trade names, copyrights, trade secrets, technology or
other proprietary rights of the Company.
2.10 Compliance with Other Instruments. The Company is not
in violation or default of any provision of its Restated Articles or Bylaws, as
amended (the "Amended Bylaws"), or in any material respect, of any instrument,
judgment, order, writ, decree, mortgage, indenture, agreement or contract to
which it is a party or by which it is bound, or, to the best of its knowledge,
of any provision of any federal or state statute, rule or regulation applicable
to the Company. The execution, delivery and performance of this Agreement, the
Investors' Rights Agreement, the Amended Agreement Regarding Co-Sale, the
issuance of the Common Stock issuable upon conversion of the Series E Preferred
Stock and the consummation of the transactions contemplated hereby and thereby
will not result in any such violation or be in conflict with or constitute, with
or without the passage of time and giving of notice, either a default under any
such provision, instrument, judgment, order, writ, decree, mortgage, indenture,
agreement or contract or an event that results in the creation of any lien,
charge or encumbrance upon any assets of the Company or the suspension,
revocation, impairment, forfeiture, or nonrenewal of any material permit,
license, authorization, or approval applicable to the Company, its business or
operations or any of its assets or properties.
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2.11 Agreements; Action.
(a) Except for agreements explicitly contemplated by this
Agreement, the Investors' Rights Agreement, the Amended Agreement Regarding
Co-Sale and the Amended Co-Sale Agreement, there are no agreements,
understandings or proposed transactions between the Company and any of its
officers, directors, shareholders, affiliates, or any affiliate thereof.
(b) There are no agreements, understandings, instruments,
contracts, proposed transactions to which the Company is a party or by which it
is bound that may involve (i) obligations (contingent or otherwise) of, or
payments to or by the Company in excess of, $25,000, or (ii) the license or
transfer of any right relating to any patent, patent rights, trade marks,
service marks, trade names, copyright, trade secret, software (excluding
commercially available shrink-wrap applications software), technology,
information or other proprietary right to or from the Company, or (iii)
provisions restricting or affecting the development, manufacture or distribution
of the Company's products or services, or (iv) indemnification by the Company
with respect to infringements of proprietary rights. There are no judgments,
orders, writs or decrees to which the Company is a party or by which it is
bound.
(c) The Company has not (i) declared or paid any
dividends, or authorized or made any distribution upon or with respect to, or
purchased or redeemed any class or series of its capital stock, (ii) incurred
any indebtedness for money borrowed or any other liabilities individually in
excess of $10,000 or, in the case of indebtedness and/or liabilities
individually less than $10,000, in excess of $25,000 in the aggregate, (iii)
made any loans or advances to any person, other than ordinary advances for
travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its
assets or rights, other than the sale of its inventory in the ordinary course of
business. The Company has not entered into any agreement or commitment to engage
in any of the foregoing activities.
(d) For the purposes of subsections (b) and (c) above,
all indebtedness, liabilities, agreements, understandings, instruments,
contracts and proposed transactions involving the same person or entity
(including persons or entities the Company has reason to believe are affiliated
therewith) shall be aggregated for the purpose of meeting the individual minimum
dollar amounts of such subsections.
(e) The Company is not a party to and is not bound by any
contract, agreement or instrument, or subject to any restriction under its
Restated Articles or Amended Bylaws, that adversely affects its business as now
conducted or as proposed to be conducted, its properties or its financial
condition. All contracts, agreements, and instruments to which the Company is a
party are valid, binding, and in full force and effect with respect to the
Company; provided, however, that shrink-wrap and electronic forms of such (i)
contracts, (ii) agreements and (iii) instruments concerning contractual
obligations may be unenforceable.
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(f) The Company has not engaged within the past three (3)
months in any discussion (i) with any representative of any corporation or
corporations regarding the consolidation or merger of the Company with or into
any such corporation or corporations, (ii) with any corporation, partnership,
association or other business entity or any individual regarding the sale,
conveyance or disposition of all or substantially all of the assets of the
Company or a transaction or series of related transactions in which more than
fifty (50%) percent of the voting power of the Company is disposed of, or (iii)
regarding any other form of acquisition, liquidation, dissolution or winding up
of the Company.
2.12 Related-Party Transactions. No employee, officer,
director or shareholder (or affiliates thereof) of the Company or member of his
or her immediate family is indebted to the Company, nor is the Company indebted
(or committed to make loans or extend or guarantee credit) to any of them. To
the best of the Company's knowledge, none of such persons has any direct or
indirect ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation that competes with the Company, except that employees, officers,
directors or shareholders (or affiliates thereof) of the Company and members of
their immediate families may own nominal amounts of stock in publicly traded
companies (as compared to their individual net worth) that may compete with the
Company. No member of the immediate family of any officer or director of the
Company is directly or indirectly interested in any material contract with the
Company.
2.13 Permits. The Company has all franchises, permits,
licenses and any similar authority necessary for the conduct of its business as
now being conducted by it, the lack of which could materially and adversely
affect the business, properties, prospects or financial condition of the
Company, and the Company believes it can obtain, without undue burden or
expense, any similar authority for the conduct of its business as planned to be
conducted. The Company is not in default in any material respect under any of
such franchises, permits, licenses or other similar authority.
2.14 Disclosure. The Company has fully provided Investor
with all the information that Investor has requested for deciding whether to
purchase the Series E Preferred Stock and all information that the Company
believes is reasonably necessary to enable Investor to make such decision.
Neither this Agreement, the Investors' Rights Agreement, any other information
with respect to the Company contained in documents provided by the Company, any
statements nor any certificates made or delivered in connection herewith
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements herein or therein not misleading. There is
no fact which the Company, to its knowledge, has not disclosed to the Investor
which materially and adversely affects or could materially and adversely affect
the business, prospects, financial condition, operations, property or affairs of
the Company.
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2.15 Registration Rights. Except as provided in the
Investors' Rights Agreement, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
2.16 Corporate Documents. True and complete copies of the
Restated Articles and Amended Bylaws of the Company, in effect as of the Closing
and as attached hereto as Exhibits A and D, respectively, are in the form
previously provided to special counsel for Investor.
2.17 Title to Property and Assets. The Company owns its
property and assets free and clear of all mortgages, liens, loans and
encumbrances, except such encumbrances and liens that arise in the ordinary
course of business, do not materially impair the Company's ownership or use of
such property or assets and do not exceed $20,000 individually or $75,000 in the
aggregate. True and complete copies of all agreements to lease or rent property
to which the Company is a party are set forth on the Schedule of Exceptions and
were previously provided to the Investors. The Company does not own any real
property. With respect to the property and assets it leases, the Company is in
compliance with such leases and, to the best of its knowledge, holds a valid
leasehold interest free of any liens, claims or encumbrances. The Company is not
in material breach of any said leases, has no knowledge of any breach or
anticipated breach by lessors thereto, and has no present knowledge that such
lease will not be renewed.
2.18 Financial Statements. The Company has delivered to
Investor its audited financial statements for the fiscal year ended December 31,
1994, and its unaudited financial statements for the fiscal year ended December
31, 1995 and the two (2) month period ended February 29, 1996 (the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and fairly present the financial condition and operating results of the
Company for the periods covered thereby and all in accordance with generally
accepted accounting principles ("GAAP") consistently applied. Except as set
forth in the Financial Statements, the Company has no material liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to February 29, 1996, and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not
required under GAAP to be reflected in the Financial Statements, which, in both
cases, individually or in the aggregate, are not material to the financial
condition or operating results of the Company.
2.19 Changes. Since February 29, 1996, there has not
been:
(a) any change in the assets, liabilities, financial
condition or operating results of the Company from that reflected in the
Financial Statements, except changes in the ordinary course of business that
have not been or are not expected to be, in the aggregate, materially adverse.
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(b) any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the assets, properties,
financial condition, operating results, prospects or business of the Company (as
such business is presently conducted and as it is proposed to be conducted);
(c) any waiver by the Company of a valuable right or of a
material debt owed to it;
(d) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the assets, properties, financial
condition, operating results or business of the Company (as such business is
presently conducted and as it is proposed to be conducted);
(e) any change or amendment to a material contract or
arrangement by which the Company or any of its assets or properties is bound or
subject;
(f) any material change in any compensation arrangement
or agreement with any employee; or
(g) to the Company's knowledge, any other event or
condition of any character that might materially and adversely affect the
assets, properties, financial condition, operating results or business of the
Company (as such business is presently conducted and as it is proposed to be
conducted).
2.20 Insurance. The Company has in full force and effect
fire and casualty insurance policies, with extended coverage, sufficient in
amount (subject to reasonable deductibles) to allow it to replace any of its
properties that might be damaged or destroyed. The Company also has in full
force and effect general liability insurance with reasonable coverage for its
type of business.
2.21 Minute Books. The Company's minute books, stock
certificate books, stock register and other corporate records are complete and
accurate in all material respects and contain a complete summary of all
meetings, and all consents in lieu of meetings, of directors, all committees of
directors, and shareholders since the time of incorporation and reflect all
transactions referred to in such minutes accurately in all material respects.
The signatures appearing in such books and records are the true signatures of
the persons purporting to have signed the same. All actions reflected in such
books and records were duly and validly taken in compliance with the laws of the
applicable jurisdiction.
2.22 Section 83(b) Elections. To the Company's knowledge,
all individuals who have purchased shares of the Company's Common Stock have
timely filed elections under Section 83(b) of the Internal Revenue Code of 1986,
as amended (the "Code"), and any analogous provisions of applicable state tax
laws.
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2.23 Employee Benefit Plans.
(i) The Schedule of Exceptions lists each "employee
benefit plan," as that term is defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), as well as each
plan which is intended to meet the requirements for tax-favored treatment under
Subchapter B of Chapter 1 of Subtitle A of the Code under which any employee or
former employee of the Company ("Employee") has any present or future right to
benefits or under which the Company has any present or future liability (such
plans being hereinafter referred to collectively as the "Plans"). The Company
does not presently, nor has it ever, sponsored or contributed to, and has no
present or future liability under a defined benefit pension plan or a plan
subject to Title IV of ERISA. Other than the Plans, to the best of the Company's
knowledge, there are no other employee benefit plans, programs, agreements or
arrangements, including employment severance, termination or similar-type
agreements between the Company and any employee, whether or not subject to
ERISA, whether oral or written, under which any Employee has any present or
future right to benefits or under which the Company has any present or future
liability.
(ii) With respect to each Plan, the Company has
delivered to Investor a current, accurate and complete copy (or to the extent no
such copy exists, an accurate description) thereof and, to the extent
applicable, any summary plan description and other material written
communications (or a descriptions of any material oral communications) provided
by the Company to any participant or beneficiary concerning the extent of the
benefits provided under such Plan and the most recent Form 5500 and attached
schedules.
(iii) To the best of the Company's knowledge, neither
the Company, any of the Plans, any trust created thereunder, any administrator
thereof, or any other party, or any trustee has engaged in any transaction as a
result of which the Company or Investor could be subject to any liability
pursuant to ERISA Section 409 or to either a civil penalty assessed pursuant to
ERISA Section 502(i) or a tax imposed pursuant to Code Section 4975.
(iv) The Company is not currently, and never has
been, a member of the controlled group of any other entity within the meaning of
Code Section 414 and there are no entities that are currently, or have ever
been, members of the Company's controlled group within the meaning of Code
Section 414.
(v) To the best of the Company's knowledge, the
Company has never engaged in a transaction which could subject it to liability
under ERISA Section 4069.
(vi) To the best of the Company's knowledge, no
event has occurred and no condition exists that would subject the Company to any
tax, fine or penalty imposed by ERISA, the Code or other applicable laws, rules,
regulations,
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including, but not limited to, the tax imposed by Code Sections 4971, 4972,
4977, 4980B or 4976(a) or the fine imposed by ERISA Section 502(c).
(vii) To the best of the Company's knowledge, each
Plan has been established and administered in all material respects in
accordance with its provisions, and with all applicable laws.
(viii) Except as set forth on the Schedule of
Exceptions, there are no pending or threatened claims, actions, suits involving
any Plan, by any Employee or beneficiary covered under any such Plan (other than
routine claims for benefits and routine expenses), no facts or circumstances
exist which could give rise to any such actions suits or claims.
2.24 Taxes.
(i) The Company has, within the time and in the
manner prescribed by law, filed all material returns, declarations, reports,
estimates, information returns and statements ("Returns") required to be filed
or sent by or with respect of any Taxes (as hereinafter defined), and the
Returns are true and correct;
(ii) The Company has, within the time and in the
manner prescribed by law, paid (and until the Closing will, within the time and
in the manner prescribed by law, pay) all Taxes that are shown to be due and
payable on the Returns described in Section 2.24(i) above;
(iii) The Company has established (and until the
Closing will establish) on its books and records, reserves that are adequate for
the payment of all Taxes not yet due and payable;
(iv) There are no liens for Taxes upon the assets of
the Company except liens for Taxes not yet due;
(v) No federal, state, local or foreign audits or
other administrative proceedings or court proceedings which are material to the
financial condition of the Company are presently pending with regard to any
Taxes or Returns of the Company, and no deficiency or assessment has been
asserted with respect to any audit or examination; and
For purposes of this Agreement, "Taxes" shall mean all taxes,
charges, fees, levies or other assessments, including without limitation, all
net income, gross income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, license, withholding, payroll, employment, excise,
estimated, severance, stamp, occupation, property or other taxes, fees,
assessments or charges of any kind, together with any interest and penalties,
additions to tax or additional amounts imposed by any taxing authority upon the
Company.
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2.25 Environmental. The Company is conducting and has
conducted its business and operations in compliance with all applicable laws
relating to pollution control and environmental contamination including, but
not limited to, all laws relating to the generation, use, exposure to,
treatment, storage, transportation, generation, discharge or disposal of any
Hazardous Materials (as defined below). No operations of the Company presently
result in or have at any time resulted in the generation, use or storage of any
Hazardous Materials, or in any release to the environment (including releases,
directly or indirectly, to the air, ground, body of water or Publicly Owned
Treatment Works) other than lawfully discharged liquid waste that is classified
as domestic sanitary sewage or solid waste that certain no Hazardous Materials.
No Hazardous Materials have, at any time, been stored, handled, used or
generated by any party at any of the facilities that are presently, or have in
the past, been owned or leased by the Company.
"Hazardous Materials included any materials including, but not
limited to waste materials, that are or may be toxic or hazardous or contain
components that are or may be toxic or hazardous. These materials include, but
may not be limited to, petroleum or crude oil or any fraction thereof, as well
as any material that is designated as hazardous or toxic under any federal,
state or local environmental or health or safety laws.
2.26 The Company's Internet Services. Set forth on
Schedule 2.26A attached hereto are the figures for the number of user queries
and browses made on the Internet using the Company's search and navigation
services known as "Infoseek Netsearch" and Infoseek Guide" for the six month
period ended March 7, 1996 (the "Query Statement"). The Query Statement is
complete and correct and fairly represents the current usage rate of Infoseek
Netsearch and Infoseek Guide. Set forth on Schedule 2.26B attached hereto is a
true and complete list of all advertisers that have engaged the Company to
provide advertising services on its Internet Services (the "Advertisers"),
together with a break-down of all revenues received by the Company to date from
such Advertisers recognizable in the month of March 1996. The Company is
unaware of any events or conditions that may materially impair the Company's
ability to maintain or increase the usage rate of Infoseek Guide or the number
of Advertisers or revenues generated therefrom.
2.27 Ultraseek Technology. The Company shall use its
reasonable commercial efforts to complete and implement the Ultraseek
technology as soon as reasonably practicable with the expectation that it will
*occur on or before [ ]. The Company has at all times utilized the [ ] (as
*hereinafter defined) for (i) [ ]; (ii) [ ] the [ ] features of the
*Company's services; (iii) maintaining for [ ] for use in [ ] if necessary;
*and (iv) [ ] on its services. The Company has made [ ] of the [ ]
and [ ]
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
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*in the future. The Company represents, warrants and covenants that [ ] the
*Company [ ] the operation of its [ ] based upon technology licensed from
Applied Computing Systems Institute of Massachusetts, Inc. pursuant to the
License Agreement dated July 8, 1994, as amended on February 13, 1995 and April
*25, 1995, the Company [ ] of the [ ] other than for (a) [ ], (b) [ ] or
*(c) [ ] on its services, without the [ ] of NYNEX Information
*Technologies Company ("NYNEX"), which [ ] The terms of [ ] shall: (i) [ ]
at such time as NYNEX may freely transfer in the public market all of the
shares of the Company's capital stock that NYNEX owns, without regard for
*restrictions for which NYNEX is responsible and/or due to [ ] of NYNEX; and
*(2) not apply with respect to any [ ] that is [ ]. For purposes of this
*Agreement, the term [ ] shall mean any and all [ ] of copies of [ ] from
*[ ] that the Company [ ] for its services.
3. Representations and Warranties of Investor. Each
Investor hereby represents and warrants with respect to such Investor that:
3.1 Authorization. This Agreement and the Investors'
Rights Agreement, when executed and delivered by Investor, constitute valid and
legally binding obligations of such Investor, enforceable in accordance with
their respective terms, except (i) as enforceability may be limited by
bankruptcy, insolvency and other laws now or hereafter in effect relating to or
generally affecting creditors' rights and general principles of equity, (ii)
that the remedies of specific performance and injunctive and other forms of
equitable relief are subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought and
(iii) as rights to indemnity under the Investors' Rights Agreement, may be
limited by federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is
made with Investor in reliance upon such Investor's representation to the
Company, which by such Investor's execution of this Agreement Investor hereby
confirms, that the Series E Preferred Stock to be received by such Investor and
the Common Stock issuable upon conversion thereof (collectively, the
"Securities") will be acquired for investment for Investor's own account, not
as a nominee or agent, and not with a view for resale or distribution of any
part thereof, and that such Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same.
3.3 Disclosure of Information. Investor believes it has
received reasonably necessary information for deciding whether to purchase the
Series E Preferred Stock. Investor further represents that it has had an
opportunity to ask
- ----------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
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questions and receive answers from the Company regarding the terms and
conditions of the offering of the Series E Preferred Stock and the business,
properties, prospects and financial condition of the Company. The foregoing,
however, does not limit or modify the representations and warranties of the
Company in this Agreement or the right of the Investors to rely thereon.
3.4 Investment Experience. Investor is able to bear the
economic risk of its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Series E Preferred Stock. If other than an
individual, such Investor also represents it has not been organized solely for
the purpose of acquiring the Series E Preferred Stock.
3.5 Accredited Investor. Investor is an "accredited
investor" within the meaning of Securities and Exchange Commission ("SEC") Rule
501 of Regulation D, as presently in effect.
3.6 Restricted Securities. Investor understands that the
Securities it is purchasing are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In addition, such Investor
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.7 Compliance with Foreign Law. If Investor is not a
United States person, Investor hereby represents that it has satisfied itself as
to the full observance of the laws of its jurisdiction in connection with any
invitation to acquire the Securities or any use of this Agreement, including (i)
the legal requirements within its jurisdiction for the acquisition of the
Securities, (ii) any foreign exchange restrictions applicable to such
acquisition, (iii) any governmental or other consents that may need to be
obtained, and (iv) the income tax and other tax consequences, if any, that may
be relevant to the receipt, holding, redemption, sale or transfer of the
Securities. Investor hereby represents that the acquisition and continued
beneficial ownership of the Securities will not violate any applicable
securities or other laws of its jurisdiction.
3.8 Further Limitations on Disposition. Without in any
way limiting the representations set forth in Section 3.6 above, Investor
further agrees not to make any disposition of all or any portion of the
Securities unless and until the transferee has agreed in writing for the benefit
of the Company to be bound by this Section 3 and Section 7 of this Agreement and
Section 1.16 of the Investors' Rights Agreement, and:
(a) There is then in effect a Registration Statement
under the Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
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(b) (i) Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, Investor shall have furnished the Company
with an opinion of counsel, that such disposition will not require registration
of such shares under the Act. It is agreed that the Company will not require
opinions of counsel for transactions made pursuant to Rule 144 or Rule 144A
except in unusual circumstances.
(c) Notwithstanding the provisions of paragraphs (a) and
(b) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by an Investor (i) to an affiliate entity or (ii) that
is a partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner or the transfer by gift, will or intestate succession
of any partner to his or her spouse or to the siblings, lineal descendants or
ancestors of such partner or his or her spouse, if the transferee agrees in
writing to be subject to the terms hereof to the same extent as if he or she
were an original Investor hereunder.
3.9 Telecommunications Company. If Investor is a
corporation and is listed on Schedule B hereto as a subsequent purchaser,
Investor is not engaged in local exchange telecommunication services as defined
in the Telecommunications Act of 1996.
3.10 Legends. It is understood that the certificates
evidencing the Securities may bear one or all of the following legends:
(a) "The securities represented by this certificate have
not been registered under the Federal Securities Act of 1933 (the "1933 Act") or
qualified under the California Corporate Securities Law of 1968 (the "California
Law") nor have such securities been registered or qualified under the laws of
any other state. No interest in such securities may be sold or transferred
without an opinion of counsel that such sale or transfer is registered under the
1933 Act, qualified under the California Law and registered or qualified, as the
case may be, under the securities law of any other state which are applicable or
is exempt from such registration and qualification."
(b) Any legend required by the laws of the State of
California, including any legend required by the California Department of
Corporations and Sections 417 and 418 of the California Corporations Code.
(c) Any legend required by applicable securities laws of
any other jurisdiction to which Investor or its Securities are bound.
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4. California Commissioner of Corporations.
4.1 Corporate Securities Law. THE SALE OF THE SECURITIES
THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
5. Conditions of Investor's Obligations at Closing. The
obligations of Investor under Section 1 of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against Investor unless Investor consents
in writing thereto:
5.1 Representations and Warranties. The representations
and warranties of the Company contained in Section 2 shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the date of such Closing.
5.2 Performance. All actions necessary to authorize the
execution, delivery and performance of this Agreement and the Investors' Rights
Agreement by the Company and the consummation of the transactions contemplated
hereby and thereby shall have been duly and validly taken by the Company. The
Company shall have performed and complied with all agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing.
5.3 Restated Articles and Amended Bylaws Effective. The
Restated Articles and Amended Bylaws shall have been duly adopted by the Company
by all necessary corporate action of its Board of Directors and shareholders,
and the Restated Articles shall have been duly filed with the Secretary of State
of the State of California and become legally effective.
5.4 Compliance Certificate. The President of the Company
shall deliver to Investor at the Closing a certificate stating that the
conditions specified in Sections 5.1, 5.2 and 5.3 have been fulfilled.
5.5 Qualifications. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that
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are required in connection with the lawful issuance and sale of the Securities
pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
5.6 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Investor's special counsel, and it shall have received all such
counterpart original and certified or other copies of such documents as it may
reasonably request.
5.7 Investors' Rights Agreement. The Company, Investor
and those holders of "Registrable Securities," as defined in that certain
Amended and Restated Investors' Rights Agreement, dated as of May 4, 1995, by
and among the Company and the other parties listed therein, as amended (the
"Prior Investors' Rights Agreement"), required to amend the Prior Investors'
Rights Agreement shall have entered into the Investors' Rights Agreement; and
the Prior Investors' Rights Agreement shall have been terminated and superseded
by the Investors' Rights Agreement.
5.8 Opinion of Company Counsel. Investor shall have
received from Brobeck, Phleger & Harrison LLP, counsel for the Company, an
opinion, dated as of the Closing, in form reasonably acceptable to NYNEX
Information Technologies Company.
5.9 Directors. The number of directors constituting the
entire Board of Directors shall have been fixed prior to or contemporaneously at
the Closing at six and the following persons shall have been elected and shall
each hold such position as of the Closing: Steven T. Kirsch, Robert E.L.
Johnson, III, H. DuBose Montgomery, Oliver Curme, John Zeisler, and a person to
be designated by Nynex Information Technologies Company prior to the Closing.
5.10 Due Diligence. Investor shall have completed its due
diligence review and investigation of the Company and its technology to the
Investor's reasonable satisfaction.
5.11 Amendment to Co-Sale Agreements. The Amended and
Restated Agreement Regarding Co-Sale and Amended and Restated Co-Sale Agreement,
each dated as of May 4, 1995, shall have been amended by the parties thereto to
include the Investor as a party thereto, which amendment shall be in the form
reasonably satisfactory to the Investor.
6. Conditions of the Company's Obligations at Closing.
The obligations of the Company to Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
Investor:
6.1 Representations and Warranties. The representations
and warranties of Investor contained in Section 3 shall be true on and as of the
Closing with
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the same effect as though such representations and warranties had been made on
and as of the Closing.
6.2 Payment of Purchase Price. Investor shall have
delivered the aggregate purchase price for the shares of Series E Preferred
Stock that Investor is purchasing hereunder and shall have acquired and paid for
such shares.
6.3 Restated Articles and Amended Bylaws Effective. The
Restated Articles and Amended Bylaws shall have been duly adopted by the Company
by all necessary corporate action of its Board of Directors and shareholders,
and the Restated Articles shall have been duly filed with the Secretary of State
of the State of California and become legally effective.
6.4 Qualifications. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance
and sale of the Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
6.5 Investors' Rights Agreement. The Company, Investor
and those holders of "Registrable Securities," as defined in the Prior
Investors' Rights Agreement, required to amend the Prior Investors' Rights
Agreement shall have entered into the Investors' Rights Agreement; and the Prior
Investors' Rights Agreement shall have been terminated and superseded by the
Investors' Rights Agreement.
7. Indemnification Obligations.
7.1 Indemnification.
(i) For purposes of this Agreement, the term "Claims"
when used with respect to a person or entity shall mean all claims, demands,
losses, costs, expenses, obligations, liabilities, actions, suits, damages,
diminution in value and deficiencies (net of any insurance proceeds actually
received) including, without limitation, interest and penalties, attorneys fees
and costs and all amounts paid in settlement of any claim, action or suit.
(ii) In connection with this Agreement, as a condition
thereto and in addition to the other remedies provided hereunder, under the
Investors' Rights Agreement or at law or in equity, the Company agrees for
itself, its successors and assigns, to indemnify and hold Investor, its
affiliates and their officers, directors, consultants, shareholders, agents,
accountants and attorneys, as the case may be, harmless against and in respect
of, or that Investor incurs or suffers in connection with, any and all Claims
that may be asserted by any third parties against Investor that arise out of,
result from or relate to: (a) the nonfulfillment of any agreement, covenant or
obligation of the Company to be performed under this Agreement or the Investors'
Rights Agreement to which it is a party; and (b) any breach of any
representation or
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warranty made by the Company to Investor pursuant to Section 2 hereof or made
elsewhere by the Company in this Agreement, the Investors' Rights Agreement or
in any certificate delivered pursuant hereto or thereto.
(iii) In connection with this Agreement, as a condition
thereto and in addition to the other remedies provided hereunder, under the
Investors' Rights Agreement or at law or in equity, the Investor agrees for
itself, its successors and assigns, to indemnify and hold the Company, its
affiliates and their officers, directors, consultants, shareholders, agents,
accountants and attorneys, as the case may be, harmless against and in respect
of, or that the Company incurs or suffers in connection with, any and all Claims
that may be asserted by any third parties against the Company that arise out of,
result from or relate to: (a) the nonfulfillment of any agreement, covenant or
obligation of the Investor to be performed under this Agreement or the
Investors' Rights Agreement to which it is a party; and (b) any breach of any
representation or warranty made by the Investor to the Company pursuant to
Section 3 hereof or made elsewhere by the Investor in this Agreement, the
Investors' Rights Agreement or in any certificate delivered pursuant hereto or
thereto.
7.2 Indemnified Claims.
If any action or any Claim is brought by a third party: (a)
the party or parties against whom the Claim is brought (in each case, the
"Indemnified Party") shall provide prompt written notice thereof to the party or
parties obligated to indemnify such Claim (in each case, the "Indemnifying
Party"); and (b) the Indemnifying Party shall assume the defense thereof (at the
expense of the Indemnifying Party) within thirty (30) days or at least ten (10)
days prior to the time a response is due in such case, whichever occurs first,
or, alternatively upon the demand and at the option of the Indemnified Party,
pay to such party or parties all costs and expenses, including attorneys fees,
incurred by such party or parties in defending itself or themselves. If the
Indemnified Party becomes obligated to assume the defense of any such Claims
pursuant to the foregoing sentence, then the Indemnified Party shall be entitled
to participate in such defense (at its or their own expense). All parties shall
cooperate reasonably with each other in the defense of any Claim brought by a
third party, including making available all records reasonably necessary to the
defense of such Claim. The Indemnifying Party shall be entitled to reasonable
approval of the settlement of any Claim with respect to which such party may be
liable hereunder.
8. Miscellaneous.
8.1 Amended Bylaws. The Company shall at all times use
its best efforts to cause its Amended Bylaws to provide that unless otherwise
required by the laws of the State of California any holder or holders of at
least 800,000 outstanding shares of Series E Preferred Stock shall have the
right to call a meeting of the Board or shareholders. The Company shall use its
best efforts to at all times maintain provisions in its Amended Bylaws and/or
Restated Articles indemnifying all directors against
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liability and absolving all directors from liability to the Company and its
shareholders to the maximum extent permitted under the laws of the State of
California.
8.2 Directors and Officers Insurance. The Company shall
as soon as practicable obtain reasonable insurance coverage for its officers and
directors as is customary in the industry.
8.3 Survival of Warranties. The warranties,
representations and covenants of the Company and Investor contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the Closing and shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of Investor or the Company.
8.4 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any Series E Preferred Stock sold hereunder or any
Common Stock issued upon conversion thereof). Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.5 Governing Law. This Agreement shall be governed by
and construed under the laws of the State of California (other than the law of
conflicts) as applied to agreements among California residents entered into and
to be performed entirely within California.
8.6 Cumulative. Except as otherwise expressly provided in
this Agreement, no remedy made available to either party hereunder by and of the
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise.
8.7 Counterparts/Facsimile. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. For
purposes hereof, a facsimile copy of this Agreement, including the signature
pages hereto, shall be deemed to be an original.
8.8 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.9 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively
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given upon personal delivery to the party to be notified by confirmed facsimile
transmission or Federal Express or upon the earlier of receipt or twenty (20)
days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
8.10 Finder's Fee. Except for fees due from the Company to
Broadview Associates, L.P. pursuant to that certain Letter Agreement dated
February 27, 1996, each party represents that it neither is nor will be
obligated for any finders' fee or commission in connection with this
transaction. Investor agrees to indemnify and to hold harmless the Company from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which Investor or any of its officers, partners, employees, or
representatives is responsible. The Company agrees to indemnify and hold
harmless Investor from any liability for any commission or compensation in the
nature of a finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of its officers,
employees or representatives is responsible.
8.11 Expenses. Each party shall pay its own costs and
expenses with respect to the negotiation, execution, delivery and performance of
this Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the Investors' Rights Agreement or the
Restated Articles, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
8.12 Amendments and Waivers. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Common Stock issued or issuable upon conversion of the Series
E Preferred Stock (for purposes of this Section 8.12, holders of Series E
Preferred Stock shall be deemed to be holders of the Common Stock issuable upon
conversion thereof) which majority must include NYNEX Information Technologies
Company. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any securities purchased under this
Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities, and the
Company.
8.13 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
8.14 Entire Agreement. This Agreement and the documents
referred to herein constitute the entire agreement among the parties and no
party shall be liable or
22
27
bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
8.15 Termination.
(a) Without limiting the rights or remedies that any
party may otherwise have, this Agreement may be terminated, and the transactions
contemplated hereby abandoned, with respect to an Investor:
(i) at any time prior to the Closing, by the
mutual written consent of such Investor and the Company;
(ii) at any time after March 31, 1996, by such
Investor or the Company, by written notice to the other, if the transactions
contemplated hereby have not been consummated on or before such date.
(b) In the event of the termination of this Agreement as
provided in (a) above, this Agreement shall be of no further force or effect,
except for Sections 8.3, 8.6, 8.9, 8.10, 8.11 and this Section 8.15, each of
which shall survive the termination of this Agreement; provided, however, that
the liability of any party for any breach by such party of the representations,
warranties, covenants or agreements of such party set forth in this Agreement
occurring prior to the termination of this Agreement shall survive the
termination of this Agreement.
23
28
IN WITNESS WHEREOF, the parties have executed this Series E
Preferred Stock Purchase Agreement as of the date first above written.
COMPANY:
INFOSEEK CORPORATION
By:
-----------------------------------
Robert E.L. Johnson, III, President
Address: 2620 Augustine Drive, #250
Santa Clara, CA 95054
INVESTOR:
Name:
----------------------------------
By:
------------------------------------
Title:
---------------------------------
Address:
---------------------------------------
---------------------------------------
[SIGNATURE PAGE TO SERIES E STOCK PURCHASE AGREEMENT OF INFOSEEK CORPORATION]
29
SCHEDULE A
SCHEDULE OF INVESTORS
Number of Shares Aggregate
of Series E Purchase
Preferred Stock Price
---------------- ---------
NYNEX INFORMATION TECHNOLOGIES COMPANY 1,500,000 $9,000,000
35 Village Road
Middleton, MA 01946
Attn: Matthew J. Stover
TRANS NATIONAL GROUP 125,000 $750,000
SERVICES INTERNATIONAL, INC.
Two Charlesgate West
Boston, MA 02215-3553
Attn: Andrew Goldfarb
--------- ----------
TOTAL SERIES E 1,625,000 $9,750,000
30
SCHEDULE B
SCHEDULE OF SUBSEQUENT PURCHASERS
CLOSINGS UP TO APRIL 19, 1996
IDG HOLDINGS, INC 166,667 $1,000,002
One Exeter Plaza
Boston, MA 02216
Attn: Jim Ghirardi
L. WILLIAM AND L. GAY KRAUSE 14,662 $87,972
as community property
25855 Westwind Way
Los Altos Hills, CA 94022
Attn: Mr. and Mrs. Krause
KANEMATSU CORPORATION 333,333 $1,999,998
Seavans North Bldg
2-1 Shibaura 1-Chome, Minato-ku
Tokyo 105-05 Japan
Attn: Masahiro Fujita
KANEMATSU USA INC 125,000 $750,000
1090 E. Arques Avenue
Sunnyvale, CA 94086
Attn: Isao Kondo
KANEMATSU COMPUTER SYSTEMS LTD 41,667 $250,002
Nissay Shiba 1-Chome Bldg
1-12-7 Shiba, Minato-ku
Tokyo 105 Japan
Attn: Ken P. Yamamoto
31
LIANHE INVESTMENTS PTE. LTD 333,333 $1,999,998
Treasury and Investment
82 Genting Lane, News Centre
Singapore 349567
A.H. BELO 33,333 $199,998
400 S. Record St., 17th Floor
Dallas, TX 75202
Attn: Michael Perry
CENTRAL NEWSPAPERS, INC 33,333 $199,998
135 N. Pennsylvania St. #1200
Indianapolis, IN 46204
Attn: Thomas MacGillivray
COWLES MEDIA COMPANY 33,333 $199,998
329 Portland Ave
Minneapolis, MN 55415
Attn: Jim Viera
FREEDOM COMMUNICATIONS, INC 33,333 $199,998
17666 Fitch
Irvine, CA 92714
Attn: David Kuykendall
MCCLATCHY NEWSPAPERS, INC 33,333 $199,998
2100 Q Street
Sacramento, CA 95816
Attn: Jim Smith
PULITZER PUBLISHING COMPANY 33,333 $199,998
900 N. Tucker Blvd
St. Louis, MO 63010
Attn: Ron Ridgeway
32
REUTERS NEWMEDIA INC. 166,667 $1,000,002
1700 Broadway, 40th Floor
New York, NY 10019
Attn: Devin Wenig
MARGEOTES/FERTITTA & PARTNERS INC. 16,667 $100,002
411 Lafayette Street
New York, NY 10003
Attn:
--------- ----------
TOTAL SERIES E 1,397,994 $8,387,964
33
SCHEDULE C
LIST OF SHAREHOLDERS
34
EXHIBIT A
AMENDED AND RESTATED ARTICLES OF INCORPORATION
35
EXHIBIT B
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
36
EXHIBIT C
SCHEDULE OF EXCEPTIONS
37
SCHEDULE OF EXCEPTIONS
The following are exceptions to the representations and warranties set
forth in Section 2 of the Series E Preferred Stock Purchase Agreement among
Infoseek Corporation (the "Company") and the Investors listed on Schedule A
thereto and each subsequent purchaser set forth on Schedule B thereto
(collectively, the "Investors"), dated as of March 29, 1996 (the "Agreement"),
and are an integral part of the Agreement. Any terms defined in the Agreement
shall have the same meaning when used in this Schedule as when used in the
Agreement, unless the context indicates otherwise. The inclusion of any item
herein shall not be deemed to be an admission by the Company that such item is
material to the business, assets, results of operations, prospects or affairs of
the Company, taken as a whole, nor shall it be deemed an admission of any
obligation or liability to any third party.
2.2 CAPITALIZATION AND VOTING RIGHTS.
(a) There is a possibility that an existing shareholder of the
Company may forfeit approximately 373,158 shares of Series A Preferred Stock to
the Company pursuant to an amendment to its Series A Preferred Stock
Supplemental Purchase Agreement dated July 22, 1994. If any such Series A shares
are forfeited, the Company will cancel such shares and will not reissue them.
(b) The Founders Agreement dated February 1, 1994, as amended
on June 30, 1994 (the "Founders Agreement"), with certain shareholders of the
Company, provides the Company with the right to repurchase unvested shares from
such shareholders should they leave the Company prior to the completion of four
years from the respective vesting date, as defined in the Founders Agreement, of
each such shareholder.
(c) In February 1996, an employee of the Company terminated
his employment with the Company and pursuant to the Founders Agreement, the
Company has repurchased 239,583 shares of the Company's Common Stock at a price
of $0.0075 per share from him.
(d) A second employee of the Company purchased 495,850 shares
of the Company's Common Stock pursuant to an Employee Stock Purchase Agreement
dated October 31, 1995 and paid for such shares with a Promissory Note. The
employee terminated his employment with the Company in February 1996. The
Company accelerated vesting on a portion of the shares and, subject to on-going
discussions, will repurchase the remaining 340,897 shares. A Promissory Note,
totaling $15,498.50, will be used to pay for the vested portion of the shares.
(e) The Company is currently negotiating and intends to enter
into an agreement of approximately $1 million in value with the advertising
agency of Margeotes-Fertitta & Partners Inc. for the 1996 fiscal year. As part
of that Agreement, Margeotes-Fertitta & Partners Inc. may acquire up to $500,000
worth of shares of Series E Preferred Stock, under the same terms and conditions
as other holders of Series E Preferred Stock, as partial payment for services
rendered.
38
(f) Pursuant to a Redemption Agreement, dated March 29, 1996,
the Company has agreed to redeem the Series E Preferred Stock held by NYNEX
Information Technologies Company ("NYNEX") if certain specified events occur. In
addition, the Company has granted NYNEX a Right of First Refusal with respect to
future sales by the Company of any shares of any class of its capital stock to
any company which engages in local exchange telecommunication services as
defined in the Telecommunications Act of 1996. The Redemption Agreement
terminates upon the conversion of the Series E Preferred Stock pursuant to the
Company's initial public offering with gross proceeds of at least $15,000,000.
2.3 SUBSIDIARIES.
The Company is currently negotiating a strategic alliance with
Kanematsu Corporation to establish Infoseek Japan. Such an alliance might
necessitate the formation of a joint venture.
2.7 LITIGATION.
On March 22, 1996, the Company received an electronic mail message from
a person alleging to be Mr. Craig David Horton of DBasics Software Company in
which such person claims to be suing the Company for copyright infringement and
alleges that the Company has failed to respond to three written requests to
remove certain material from its database. Such person also alleges that the
Company does not, frequently enough, read a certain type of file (a robots.txt)
which can be used, among other things, to instruct search engines not to add
designated materials to their databases. At present, the Company is under no
legal requirement to read robots.txt files, although it is done as a convention
in the industry and by the Company.
The Company has not received any documentation relating to the alleged
legal action described in the electronic message and has no reason to believe
that such a suit has actually been filed or will be filed. However, the Company
has taken steps to increase the frequency with which its "worm" reads robots.txt
in order to further reduce the possibility of copyright infringement.
39
2.8 PROPRIETARY INFORMATION AND STOCK PURCHASE AGREEMENTS.
All holders of Common Stock except Lief Hedstrom and De-Hwei
O'Shaughnessy are parties to the Company's Founders Agreement or a Stock
Purchase Agreement. Mr. Hedstrom and Ms. O'Shaughnessy are each a party to the
Company's standard form of Non-Statutory Stock Option Agreement and exercise of
option form; both purchased their respective shares of Common Stock through the
exercise of stock options. Mr. Robert E.L. Johnson is a party to four (4) Stock
Purchase Agreements dated January 24, 1996 pursuant to which he purchased
500,000 shares of Common Stock at $0.60 per share. In January 1996, pursuant to
the Company's Stock Option Plan, Mr. Johnson was granted an option to purchase,
through a standard exercise of option form, 100,000 shares of Common Stock at
$.60 per share. This option may be cancelled and replaced with a purchase of an
equal number of shares at the option price, in which case another Stock
Purchase Agreement may be made between Mr. Johnson and the Company. Mr. Johnson
intends to purchase the shares by one method or the other. Payment for such
shares will be made with a Promissory Note. Mr. Edward M. Kessler is a party to
an Employee Stock Purchase Agreement dated October 31, 1995 which granted the
Company a right of repurchase which the Company intends to exercise in the near
future. Other executive officers of the Company may also execute Stock Purchase
Agreements in the near future.
2.9 PATENTS AND TRADEMARKS.
* (a) The Company applied for [ ] U.S. patents with the
United States Patent and Trademark Office (USPTO) on the following dates: on [
*
*
*
*
*
*
* ] A response to a USPTO Action to []. A response to a USPTO Action to Serial
*No. [ ]. No further USPTO action has been received in the remaining patent
applications since their respective filing dates. The Company has submitted an
invention disclosure to its patent counsel which is being used to prepare
another U.S. patent application. There can be no assurance that any issued
patents will result from these applications. The Company believes that its main
intellectual property protection is the trade secret protection of its source
code.
(b) The Company filed two Intent to Use Applications for
Trademark Registration with the USPTO for the Infoseek mark, one for computer
programs and one for computer services. The Infoseek computer services service
mark was granted on August 8, 1995. A Statement of Use for the computer program
trademark is due to be filed on June 27, 1996. The Company filed on May 26, 1995
an Intent to Use Application for Trademark Registration for the Personal
Newswire service
- --------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
40
mark. A response to a USPTO Action to that application was filed on February
27, 1996. The Company has filed, or expects to file, a number of foreign
service mark applications for the Infoseek service mark. On March 22, 1996, the
Company mailed an Intent to Use Application for Trademark Registration with the
USPTO for the combined service mark and trademark Ultraseek. A filing date and
serial number will be determined by the USPTO in approximately one week from
the mailing date. In addition, a future revision is planned to divide the
Application into two separate applications, one for the service mark and
another for the trademark. The Ultraseek search engine may, among other things,
facilitate document parsing and indexing, serve as a query evaluator, and allow
faster updating of World Wide Web pages.
(c) The following is a list of material technology, developed by or
for the Company:
Internal Technology:
- Infoseek Guide
- Advertising tracking code
Tracks clicks on ads. Determines which ad is shown in response to a
query.
- Phttp server enhancements
Miscellaneous enhancements and bug fixes to support the PHTTP
* [ ] which [ ] and [ ] the [ ]
* to the appropriate [ ].
- Interface to Inquery to perform queries
* [ ] and [ ] to take a query and transform it into Inquery
* syntax, run the search, and look up [ ] in [ ].
- Code to support categorization
WWW code to support researchers entering in site descriptions and
category topics so that new entries in the catalog can be made.
- GUI to support browsing of Guide topics and queries
* Code to create [ ] pages which are displayed in response
to a user browsing Guide.
- Architecture to support large numbers of queries with
* [ ]
* Underlying system architecture for [ ]
* and [ ] servers
* - [ ] and [ ]
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
41
* [ ] to [ ] and [ ], and provide very fast
lookup when users do a query.
- WWW worm
* [ ] code to collect WWW pages using a [ ]
* and [ ] of URLs to visit on each pass.
* - [ ] Search Engine
- document parsing
Code to extract fields of text from a document and issue the
appropriate calls to the indexer to index the document.
* Each [ ] it is to be indexed.
- query evaluator
Code to evaluate a query of required, rejected, and optional
* terms, as well as [ ] that together [ ] a [ ]
- document indexing
* Code to create [ ] file from [ ] calls to the [ ]
* from the document [ ].
- http server code
Code to provide HTTP service, accept queries, and return results
pages.
* - [ ] WWW worm code using the [ ]
* Code to scan the WWW [ ] and detect [ ] and
* output [ ] information.
* - [ ] index database [ ]
* [ ] to [ ] and [ ] records from the [ ] used
* to [ ] the [ ] used by the [ ].
Third Party Technology:
Note: The Company has obtained third party licenses for the technology listed
below, with the exception of the XEROX Corporation ("XEROX") stemming
technology for which the Company is currently negotiating a license which is
expected to be signed within the month of March 1996. Presently, the Company is
using the XEROX stemming technology pursuant to a Software Evaluation Agreement
dated January 4, 1996 between the Company and XEROX.
*[ ]
-------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
42
* used by [ ] WWW worm
Umass search engine (Inquery)
used by Guide
Phttp server
used by Guide
*Xerox [ ]
* used by [ ] and [ ] in Ultraseek
(d) The Company is a party to the following agreements with
respect to the license, development, purchase, sale or distribution of
intellectual property rights:
(i) Software Development and Licensing Master
Agreement dated July 8, 1994, as amended on February 13, 1995 and April 24,
1995 between the Company and Applied Computing Systems Institute of
Massachusetts, Inc (ACSIOM).
(ii) Software License Agreement (the "Agreement")
between the Company and ADB Inc. dated December 22, 1995 and including Annex C
thereto which supplements and amends the terms to the Agreement.
(iii) Software License Agreement between the
*Company and [ ] dated September 26, 1994.
(iv) Internet Services and Products Master
Agreement dated May 22, 1995 between the Company and BBN Planet Corporation.
(v) License dated January 27, 1994 by Infoseek
to Frame Technology of Infoseek intellectual property pursuant to Kirsch/Frame
Transition Agreement dated October 1, 1993.
(vi) Internet Search Service Access Agreement
dated August 23, 1995 between Microsoft Corporation and Infoseek Corporation,
as amended on December 18, 1995.
(vii) Internet Search Service Access Agreement
between the Company and NETCOM On-Line Communication Services, Inc. dated
October 13, 1995, as amended on March 20, 1996.
(viii) Agreement between the Company and
NetManage, Inc. dated November 29, 1995.
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
43
(ix) Net Search Program--Premier Provider
Agreement between the Company and Netscape Communications Corporation dated
March 22, 1996, as amended on that date.
(x) Net Search and Net Directory Program--Premier
Provider Agreement between the Company and Netscape Communications dated
December 22, 1995.
(xi) Software License and Distribution Agreement
between the Company and Personal Library Software, Inc. dated June 17, 1994.
(xii) Software License between the Company and
*[ ] for accounting software, valued in excess of $25,000, purchased
in approximately June or July 1995.
(e) The Company intends to enter into an agreement
regarding the license of the representations, names, artistic renderings, and
treatments of the Where's Waldo book scenes from certain publications from
Where's Waldo, Inc. The Company signed the agreement on March 23, 1996 and is
awaiting a response from Where's Waldo, Inc.
(f) The Company expects to enter into an agreement with
XEROX Corporation pursuant to which the Company will acquire a right and
non-exclusive license to certain Lexical Technology, Lexicons and
Documentation. The Company will be obligated to pay XEROX a royalty equal to 2%
based on advertising revenues, with an annual maximum payment in 1996, 1997 and
1998 of $200,000, $200,000 and $300,000, respectively.
(g) The Company intends to enter into an assignment of
certain intellectual property whereby Tumbleweed Software Corporation
("Tumbleweed") will transfer all rights, title and interest (including
copyright) to Tumbleweed's iSeek technology in binary and source code form to
the Company. An addendum will address ad banners that Tumbleweed is contracting
to display on the Infoseek Guide Service. The agreement is proposed to be
completed within the months of March or April 1996.
(h) In the ordinary course of business, the Company has
obtained licenses to miscellaneous third party intellectual property in the
form of commercially available software. The price per individual unit of such
software does not exceed $25,000.
(i) From time to time, given the nature of the World Wide
Web, users misuse or mislabel the Company's search bar or web page or otherwise
corrupt the Company's web presence. In such instances, the Company notifies the
offending user. To date, no legal action has been taken and users have
generally complied with the Company's request to correct the situation or cease
the offending activity. However, because of the transitory and rapidly changing
nature of the Internet and World Wide Web, such activities may be difficult to
trace and/or correct as users may corrupt sites for fleeting periods of time
and may move from one site to another thereby eluding apprehension despite the
Company's vigilance. In addition, because third party materials may be
downloaded by online or
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
44
Internet services, operated or facilitated by the Company, or the Internet or
World Wide Web access providers with which it has relationships, as well as
other third parties (including users, persons, and entities throughout the
world), and subsequently distributed to others, there is a possibility that
claims may be made against the Company in the U.S. and foreign countries for
defamation, negligence, copyright or trademark infringement and/or
misappropriation, or other theories based on the nature and content of such
third party materials. Nothing contained herein shall limit the Company's
representations, warranties and covenants set forth in Section 2.27 of the
Agreement.
(j) The Company attempts to protect its proprietary
technology but there can be no guarantee that the Company's rights will not be
challenged, invalidated or circumvented, or that any rights granted would
provide proprietary protection to the Company, under applicable law. In
addition, effective copyright, trademark and trade secret protection and other
proprietary protections may be unavailable or limited under applicable law in
certain foreign jurisdictions and the global nature of the Internet makes it
virtually impossible to control the ultimate destination of the Company's
products and services or to delimit and circumscribe the Company's exposure for
liability as a result of third party's acts to damage the Company's products and
services. Nothing contained herein shall be construed to limit in any way the
Company's representations and warranties relating to ownership and/or
non-infringement in Section 2.9 of the Agreement. In particular and without
limiting the generality of the foregoing sentence, nothing contained herein
shall be construed to limit the Company's representations and warranties that
the Company Technology is protected as a trade secret, or that the Company is
unaware of any facts which would tend to limit or invalidate trade secret
protection over the Company Technology or trademark protection over the
Company's names, marks and logos.
2.11 AGREEMENTS; ACTION.
(a) The Company has entered into the following agreements
with officers, directors or shareholders:
(i) Amended and Restated Put Option Agreement,
dated as of May 4, 1995.
(ii) Founders Agreement, dated February 1, 1994,
as amended on June 30, 1994.
(iii) Indemnification Agreement for Officers and
Directors dated March 9, 1994.
(iv) Series A Preferred Stock Purchase Agreement,
dated February 25, 1994, as amended March 3, 1994, and June 30, 1994.
(v) Series B Preferred Stock Purchase Agreement,
dated June 30, 1994, and the Ancillary Agreements referred to therein.
(vi) Series C Preferred Stock Purchase Agreement,
dated May 4, 1995, as amended June 30, 1995, and the Ancillary Agreements
referred to therein.
45
(vii) Confidentiality and Intellectual Property
Rights Agreements of various dates with Officers and Directors who are
employees.
(viii) Director Confidentiality Agreement
for Directors who are not employees has been signed by John E. Zeisler and H.
DuBose Montgomery, but not by Oliver D. Curme. A Director Confidentiality
Agreement with revisions as per Mr. Curme's request has been forwarded to Mr.
Curme for his signature.
(b) From time to time, the Company enters into purchase
orders which individually are less than $25,000 in value, but which in the
aggregate exceed twenty-five thousand dollars ($25,000) with vendors for the
purchase of various items, including computer equipment, computer software and
office furnishings. In addition, the Company is a party to the following
agreements and purchase orders with an individual value of greater than $25,000:
Agreements:
(i) Reuters New Media, Inc. On-Line Service
Agreement, dated February 28, 1995.
(ii) Net Search Program--Premier Provider
Agreement between the Company and Netscape Communications Corporation dated
March 22, 1996, as amended on that date.
(iii) Net Search and Net Directory Program--Premier
Provider Agreement between the Company and Netscape Communications dated
December 22, 1995.
(iv) Software Development and Licensing Master
Agreement dated July 8, 1994, as amended on February 13, 1995 and April 24, 1995
between the Company and Applied Computing Systems Institute of Massachusetts,
Inc (ACSIOM).
(v) Software License Agreement (the "Agreement")
between the Company and ADB Inc. dated December 22, 1995 and including Annex C
thereto which supplements and amends the terms to the Agreement.
(vi) Software License and Distribution Agreement
between the Company and Personal Library Software, Inc. dated June 17, 1994.
(vii) Internet Services and Products Master
Agreement dated May 22, 1995 between the Company and BBN Planet Corporation.
(viii) SunService, a Division of Sun Microsystems,
Inc. ("SunService") Customer Support Program Agreement for Infoseek ("Customer")
between the Company and Sun Service Corporation dated January 1, 1996.
(ix) Leases and Sublease described herein at
2.17(a) and 2.17(b).
46
(x) Lifeguard Insurance Co. Medical Plan and
Prudential Life Insurance Co. Dental Plan disclosed herein at 2.23.
(xi) Executive Search Consulting Agreement dated
February 9, 1996 between the Company and Howard Karr and Associates.
(xii) Executive Search Consulting Agreement dated
March 11, 1996 between the Company and Devine and Virnig, Inc.
(xiii) Agreement dated March 7, 1996 between the
Company and Broadview Associates, L.P. which may exceed $25,000 if certain
conditions are met.
(xiv) Consulting Services Agreement dated July 31,
1995 between the Company and Janet L. Strauss.
(xv) Consulting Services Agreement dated November
15, 1995 between the Company and Maureen Frantovich.
(xvi) Consulting Services Agreement dated July 31,
1995, as amended January 29, 1996 between the Company and Doug Yoshinaga.
(xvii) Consulting Services Agreement dated March
18, 1996 between the Company and Peter Rip.
(xviii) Agreement dated February 9, 1996 between Sky
Television, Inc. and the Company.
47
Purchase Orders:
P.O.
Vendor Name Date Description Amount
----------- ---- ----------- ------
* [ ] 09/19/95 [ ] $[ ]
software/support
BBN Planet Corp. 11/28/95 T-3 Service and Support $482.7K 2 yr term
installation
* [ ] 02/15/96 [ ] $[ ]
Sun Service 02/13/96 Sun Spectrum Platinum & $171K 1 yr term
Bronze Support
* [ ] 02/23/96 [ ] $[ ]
Sun Microsystems 03/21/96 Sun Ultra Service (8 ea) $162K
Sun Microsystems 03/21/96 SparcServer 1000E (2 ea) $296K
* [ ] 03/18/96 [ ] $[ ]
(c) Other than items payable in the ordinary course of
business, the Company is indebted to Venture Lending and Leasing, Inc. for
approximately three million dollars ($3,000,000) in equipment purchases
pursuant to Loan Agreements dated October 5, 1995 and February 9, 1996 which
refer to three (3) Promissory Notes dated February 29, 1996 (Note No. 42-001
for $2,029,110.17), November 30, 1995 (Note No. 27-002 for $482,791.83), and
October 11, 1995 (Note No. 27-001 for $479,440.28). In addition, the Company
intends to enter into a new note for $543,638.42 with Venture Lending and
Leasing, Inc. within one week from March 26, 1996.
(d) The Company is currently negotiating and intends to
enter into an agreement of approximately $1 million in value with the
advertising agency of Margeotes-Fertitta & Partners Inc. for the 1996 fiscal
year. As part of that Agreement, Margeotes-Fertitta & Partners Inc. may acquire
*up to [ ] worth of Series E Preferred Stock, under the same terms and
conditions as other holders of Series E Preferred Stock, as partial payment for
services rendered.
(e) The Company is currently negotiating and intends to
enter into an agreement with the public relations firm of Edelman & Associates
*which is expected to cost the Company approximately [ ] per month in
fiscal year 1996.
------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
48
(f) The Company is currently negotiating and intends to
enter into two separate Consulting Services Agreements (standard form), one each
with Thomas Browne and John Klingel respectively, which will individually be in
excess of $25,000 in value. Both of these Agreements may involve an equity
component in the form of an option to purchase Common Stock pursuant to the
Company's Stock Option Plan.
(g) The Company expects to enter into an agreement with
XEROX Corporation pursuant to which the Company will acquire a right and
non-exclusive license to certain Lexical Technology, Lexicons and Documentation.
The Company will be obligated to pay XEROX a royalty equal to 2% based on
advertising revenues, with an annual maximum payment in 1996, 1997 and 1998 of
$200,000, $200,000 and $300,000, respectively.
(h) The Company intends to enter into an assignment of
certain intellectual property whereby Tumbleweed Software Corporation
("Tumbleweed") will transfer all rights, title and interest (including
copyright) to Tumbleweed's iSeek technology in binary and source code form to
the Company. An addendum will address ad banners that Tumbleweed is contracting
to display on the Infoseek Guide Service. The agreement is proposed to be
completed within the months of March or April 1996.
(i) The Company is a party to agreements with respect ot
the license, development, purchase, sale or distribution of intellectual
property rights listed in 2.9(d) above. In addition, in the ordinary course of
business, the Company has obtained licenses to miscellaneous third party
intellectual property in the form of commercially available software. The price
per individual unit of such software does not exceed $25,000.
2.12 RELATED-PARTY TRANSACTIONS.
(a) The Company intends to issue a Promissory Note to Mr.
Edward Kessler in the principal amount of $15,498.50 in connection with the
purchase of 154,953 vested shares of Common Stock.
(b) The Company has committed to issue 200,000 shares of
its Common Stock to Mr. Craig Forman at $1.00 per share. Payment will be made
with a Promissory Note.
(c) The Company has committed to issue Mr. Leonard LeBlanc
400,000 shares of the Company's Common Stock pursuant to an option or a Stock
Purchase Agreement at a price to be determined by the Board of Directors. If Mr.
LeBlanc decides to purchase these shares, payment will be made with a Promissory
Note.
(d) In January 1996, pursuant to the Company's Stock
Option Plan, Mr. Robert E.L. Johnson, III was granted an option to purchase,
through a standard exercise of option form, 100,000 shares of Common Stock at
$.60 per share. This option may be
49
cancelled and replaced with a purchase of an equal number of shares at the
option price, in which case another Stock Purchase Agreement may be made between
Mr. Johnson and the Company. Mr. Johnson intends to purchase the shares by one
method or the other. Payment for such shares will be made with a Promissory
Note.
(e) In March 1996, the Board of Directors of the Company
delegated to the president of the Company, the authority to grant Mr. James N.
Desrosier an option, pursuant to the Company's Stock Option Plan, to purchase
500,000 shares of Common Stock at $1.00 per share upon his hiring date. Mr.
Desrosier may purchase vested shares from the grant of 500,000 shares using one
of the methods described in section 2.12(d) of this Schedule of Exceptions.
2.15 REGISTRATION RIGHTS.
The Company has granted registration rights to Venture Lending
& Leasing, Inc. in connection with its Warrant, dated October 7, 1995, to
purchase a maximum of 133,333 shares of Series C Preferred Stock. Such
registration rights are only with respect to the piggyback registration rights
under Section 1.3 of the Amended and Restated Investors' Rights Agreement dated
May 4, 1995, as may be amended from time to time.
2.17 TITLE TO PROPERTY AND ASSETS.
The Company has the following agreement to lease or rent
property:
(a) Lease of Augustine Drive premises in Santa Clara,
California, dated December 13, 1993, between the Company and Spieker Properties,
L.P., including an Extension Agreement dated June 19, 1995 as well as leases
between the same parties for additional space at the same location dated
November 7, 1995, January 8, 1996, and January 10, 1996.
(b) Sub-Lease, with the approval of landlord Spieker
Properties, L.P., of Augustine Drive Premises in Santa Clara, CA dated May 30,
1995 between the Company and Innovative Information Systems (IIS) of property
previously leased to IIS by Spieker Properties, L.P.
(c) A total of three million dollars ($3,000,000)in
Equipment Loans with Venture Lending & Leasing, Inc. UCC-1 Forms have been filed
for the security of such equipment for the benefit of Venture Lending & Leasing,
Inc.
50
2.23 EMPLOYEE BENEFIT PLANS.
EFFECTIVE
COMPANY TYPE OF PLAN DATE NOTES
------- ------------ --------- -----
Lifeguard Insurance Co. Medical Plan 1/1/96 Previous plan through Aetna.
Prudential Life
Insurance Co. Dental Plan 1/1/94 None
Vision Service Plan Vision Plan 1/1/96 No previous plan.
UNUM Life, short & 1/1/96 No previous short or long term disa-
long term bility plans. Previous life insurance
disability through Aetna (tied with medical
plans. coverage at $20K per employee).
Current life is $50K per employee.
Infoseek Corporation Sec. 125 1/1/94 Plan name: "Infoseek Corporation
IRC Section 125 Flexible Benefit
Plan"
Infoseek Corporation 401(K) 1/1/96 No previous plan.
401(K) Plan
(Pension Specialists,
Inc. Non-Standardized
Plan)
Infoseek Corporation 401(K) 1/1/96 No previous plan.
2.26 THE COMPANY'S INTERNET SERVICES.
At present, users who access the Company's search engine through
Netscape Communications are given two methods of access: Net Search and Net
Directory. One- half of the Net Search access area is reserved for Infoseek
while the remaining area is shared by other companies. Similarly, for the Net
Directory, one-half of the access area is reserved for Excite's search engine
and the remainder is shared space. In April, Netscape will combine these
services into one access area which will be shared by five companies. This
combined access area will probably be called Net Search, but there can be no
assurance that this will be the case. These changes make it difficult to predict
what traffic will be, and this, in turn, may have an impact on the Company's
ability to sell advertising and possibly reduce revenue. Moreover, the Company's
payment arrangements with Netscape will soon be changing. Whereas the Company
presently pays Netscape a percentage of revenues from ads sold, the Company will
soon begin making a fixed fee payment of $5,000,000 per year. This change may
impact the Company's financial position adversely.
51
SUPPLEMENT TO SERIES E SCHEDULE OF EXCEPTIONS
The following are supplemental exceptions to the
representations and warranties set forth in Section 2 of the Series E Preferred
Stock Purchase Agreement among Infoseek Corporation (the "Company") and the
Investors listed on Schedule A thereto and each subsequent purchaser set forth
on Schedule B thereto (collectively, the "Investors"), dated as of March 29,
1996 (the "Agreement"), and along with the Schedule of Exceptions thereto are an
integral part of the Agreement with respect to the subsequent purchasers set
forth on Schedule B. Any terms defined in the Agreement shall have the same
meaning when used in this Schedule as when used in the Agreement, unless the
context indicates otherwise. The inclusion of any item herein shall not be
deemed to be an admission by the Company that such item is material to the
business, assets, results of operations, prospects or affairs of the Company,
taken as a whole, nor shall it be deemed on admission of any obligation or
liability to any third party.
2.2 CAPITALIZATION AND VOTING RIGHTS.
The capitalization in the Stock Purchase Agreement did not
include:
a. 834 shares of Common Stock purchased by Leif Hedstrom
on February 26, 1996;
b. 25,000 shares of Common Stock purchased by William
Peck on March 10, 1996;
c. 3,125 shares of Common Stock purchased by William Yee
on March 12, 1996;
d. 2,500 shares of Common Stock purchased by Judith
Popowski on April 1, 1996.
The shares mentioned above were purchased pursuant to
exercises under the Non-Statutory Stock Option Agreements between the Company
and the respective individual.
e. 100,000 shares of Common Stock purchased by Robin
Johnson pursuant to an Employee Stock Purchase Agreement dated January 30, 1996.
2.8 PROPRIETARY INFORMATION AND STOCK PURCHASE AGREEMENTS.
References in this section are to Section 2.8 of the Schedule
of Exceptions.
William Peck, Judith Popowski, and William Yee should be added
to the first two sentences so that they read, "All holders of Common Stock
except Lief
52
Hedstrom, De-Hwei O'Shaughnessy, William Peck, Judith Popowski, and William Yee
are parties to the Company's Founders Agreement or a Stock Purchase Agreement.
Messrs. Hedstrom, Peck and Yee and Ms. O'Shaughnessy and Ms. Popowski are each a
party to the Company's standard form of Non-Statutory Stock Option Agreement and
exercise of option form; all purchased their respective shares of Common Stock
through the exercise of stock options.
The fifth line should now read, "This option was cancelled and
replaced with an Employee Stock Purchase Agreement effective January 30, 1996 of
an equal number of shares at the option price. The sixth line should be deleted.
The seventh line should read, "Payment for such shares was made with a
Promissory Note."
The last line of the paragraph should now read, "Other
executive officers of the Company may also execute Stock Purchase Agreements in
the near future, including but not limited to: Leonard LeBlanc who will cancel a
portion of his option grant for shares that vested on his first day of
employment and John Nauman and Craig Forman who will cancel their respective
total option grants and execute Stock Purchase Agreements for such shares as
well as Promissory Notes in payment."
2.9 PATENTS AND TRADEMARKS.
THIRD PARTY TECHNOLOGY.
a. XSoft/Infoseek Software Distribution and License
Agreement-Lexicons dated March 31, 1996 for use of XSoft's (a Division of XEROX
Corporation) stemming software;
LICENSES.
a. Promotional License Agreement dated March 20, 1996
between the Company and Where's Waldo?, Inc.;
b. Agreement by and between Infoseek Corporation and
Tumbleweed Software Corp. effective February 15, 1996.
c. Software License Agreement between the Company and
NYNEX Information Technologies Company ("NYNEX") dated March 29, 1996.
d. Memorandum of Understanding between Company and HNC
Software, Inc. ("HNC") dated April 11, 1996.
e. Agreement in Principle dated March 21, 1996 between
the Company and HNC (not previously included because received after the first
Series E Closing Date).
48
53
f. ShareData, Inc. Software License Agreement and
Software Support and Update Services for commercially available software
purchase made in March 1996.
g. XSoft/Infoseek Software Distribution and License
Agreement Lexicons dated March 31, 1996.
h. The Company is currently negotiating an amendment to
its current agreement with ADB, Inc. for a site license worth $250,000.
2.11 AGREEMENTS.
a. Joint Marketing Agreement between the Company and Sun
Microsystems, Inc. (a division of Sun Microsystems Computer Company) dated
April 15, 1996.
b. Note No. 42-002 dated March 28, 1996 for $543,638.42
between the Company and Venture Lending & Leasing, Inc.
c. Memorandum of Understanding between Company and HNC
Software, Inc. ("HNC") dated April 11, 1996.
d. Agreement in Principle dated March 21, 1996 between the
Company and HNC (not previously included because received after the first Series
E Closing Date).
e. XSoft/Infoseek Software Distribution and License
Agreement Lexicons dated March 31, 1996
f. Agreement by and between Infoseek Corporation and
Tumbleweed Software Corp. effective February 15, 1996.
g. Software License Agreement between the Company and
NYNEX Information Technologies Company ("NYNEX") dated March 29, 1996.
h. ShareData, Inc. Software License Agreement and
Software Support and Update Services for commercially available software
purchase made in December, 1995 (not previously included because received after
the first Series E Closing Date).
i. Infoseek/NYNEX Agreement dated March 29, 1996 between
the Company and NYNEX Information Technologies Company.
j. Infoseek Impressions Agreement-Ad Exchange dated
March 8, 1996 between the Company and FreeLoader, Inc.
49
54
k. Thomas Browne became an employee of the Company and
no Consulting Services Agreement currently exists. John Klingel never executed a
Consulting Services Agreement and is not engaged in a consulting capacity with
the Company.
l. The Company is currently negotiating an amendment to
its currently agreement with ADB, Inc. for a site license worth $250,000.
m. The Company has executed a lease for office space in
New York for a five-year period the cost of which is not expected to exceed
$100,000.
n. The Company is currently negotiating Linking
Insertion Order with AT&T WorldNet(service mark) Service for $30,000 for display
between April 15, 1996 and July 14, 1996.
o. Agreement between the Company and Verity, Inc. dated
March 31, 1996.
p. The Company intends to execute a Cooperation
Agreement between the Company and Quarterdeck Corporation in the very near
future.
q. Memorandum of Understanding between the Company and
Kanematsu Corporation dated March 30, 1996.
r. The Marketing Alliance Agreement between the Company
and Kanematsu Corporation has been executed.
s. Memorandum of Understanding between the Company and
International Data Group dated April 11, 1996.
t. The Company is currently negotiating Memoranda of
Understanding with Reuters, MCI, Electronic Newstand, Singapore Press Holdings.
2.12 RELATED PARTY TRANSACTIONS.
a. Leonard LeBlanc will cancel 50,000 options from his
offer letter grant and will use a stock purchase agreement (SPA) to buy 50,000
shares of Common Stock with a Promissory Note.
b. John Nauman will cancel his total option grant and
execute an SPA and Promissory Note for shares of Common Stock.
c. Craig Forman will also cancel his total option grant
and execute an SPA and Promissory Note for shares of Common Stock.
50
55
2.17 TITLE TO PROPERTY AND ASSETS.
The Company has executed a lease for office space in New York
for a five-year period the cost of which is not expected to exceed $100,000.
51
56
EXHIBIT D
BYLAWS, AS AMENDED
52
57
EXHIBIT E
SECOND AMENDED AND RESTATED
AGREEMENT REGARDING CO-SALE
53
58
EXHIBIT F
SECOND AMENDED AND RESTATED
CO-SALE AGREEMENT
54
59
SCHEDULE 2.26A
Total Queries and Browses
by Month and Service
* [ ] [ ] [ ] [ ] [ ] [ ]
------------------- ----------- ---------- -------- -------- -------- ------
*[ ]
* [ ]
* Query [ ] [ ] [ ] [ ] [ ]
* Browse [ ] [ ] [ ] [ ] [ ] [ ]
* [ ]
* Query [ ] [ ] [ ] [ ] [ ] [ ]
* Browse [ ] [ ] [ ] [ ] [ ] [ ]
* [ ]
* Query [ ] [ ] [ ] [ ] [ ] [ ]
* Browse [ ] [ ] [ ] [ ] [ ] [ ]
* [ ]
* Query [ ] [ ] [ ] [ ] [ ] [ ]
* Browse [ ] [ ] [ ] [ ] [ ] [ ]
Guide
* [ ]
* Query [ ] [ ] [ ] [ ] [ ] [ ]
* Browse [ ] [ ] [ ] [ ] [ ] [ ]
* [ ]
* Query [ ] [ ] [ ] [ ] [ ] [ ]
* Browse [ ] [ ] [ ] [ ] [ ] [ ]
* [ ] (thru 3/7)
* Query [ ] [ ] [ ] [ ] [ ] [ ]
* Browse [ ] [ ] [ ] [ ] [ ] [ ]
* [ ]
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
55
60
SCHEDULE 2.26B
LIST OF ADVERTISERS
===================================================================================================
ADVERTISER AGENCY DATE SIGNED CONTRACT PERIOD NET CONTRACT 1996 REVENUE:
AMOUNT MAR.
---------------------------------------------------------------------------------------------------
* Accent Software 3/3/96 02/29-03/29 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Access Zone 3/8/96 3/8-4/8 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Adaptec [ ] 1/5/96 1/01-03/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Adaptec 1/19/96 2/01-03/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Adaptec 1/24/96 2/01-03/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Adaptec 1/19/96 2/01-03/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Adobe [ ] 3/11-4/8 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Adobe [ ] 3/12-6/11 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Aleph 2/29/96 2/29-4/1 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Amazon 2/26/96 3/1-3/31/97 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Apple Computer 3/14/96 3/15-4/15 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Apple West Week [ ] 3/8-3/21 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Art Exposure 2/26/96 2/29-3/29 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Aspect Software 2/29/96 3/14-4/15 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Asymetrix 3/12/96 3/15-4/15 [ ] [ ]
---------------------------------------------------------------------------------------------------
* AT&T [ ] 3/1-3/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* ATI [ ] 2/20-7/20 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Best Quote 2/28/96 3/4-4/3 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Career Mosaic [ ] 3/4/96 2/29-3/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Cathay Pacific 2/28/96 2/29-4/1 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Chem Connect 2/26/96 3/1-3/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Cnet 3/12/96 3/13-6/12 [ ] [ ]
---------------------------------------------------------------------------------------------------
* DealerNet 2/2/96 2/5-3/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Dentist Info Com [ ] 12/15/95 1/1-12/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Destination Florida [ ] 3/1/96 3/1/-3/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
* Discovery Channel [ ] 3/5/96 3/1-3/31 [ ] [ ]
---------------------------------------------------------------------------------------------------
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
56
61
-------------------------------------------------------------------------------------------------------------
* Florida Super Site [ ] 3/14-4/13 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Four 11 [ ] 3/13-4/1 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Fox Industries/Sporting 2/21/96 2/23-3/22 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Freeride [ ] 2/27/96 2/29-3/31 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* FTD [ ] 11/15/95 1/13-05/11 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Galacticomm 2/13/96 2/19-3/18 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Genius T-Shirts 2/23/96 2/22-3/21 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* George Thompson 2/19/96 3/1-4/1 [ ] [ ]
Diamond
-------------------------------------------------------------------------------------------------------------
* GlaxowsIcom [ ] 3/12/96 3/12-6/11 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Globetrotter Software 2/6/96 2/7-4/6 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* GLPD, Limited 12/19/95 1/17-3/16 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* GTE [ ] 3/5/96 3/15-4/14 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Highglow Jewlers [ ] 3/12/96 3/8-4/7 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Hilton Hotels [ ] 1/31/96 2/29-3/28 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Honda [ ] 2/2/96 2/10-3/31 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Horizons Tech 2/20/96 3/1-4/1 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Hotel Discounts [ ] 9/22/95 10/16-4/1596 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* IBM [ ] 2/20-5/19 [ ] [ ]
6/10-7/9
8/12-9/1
-------------------------------------------------------------------------------------------------------------
* ICentral 2/29/96 2/29-3/15 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Iconix 2/29/96 3/1-4/1 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* MGS 2/22/96 2/29-4/01 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Intel [ ] 3/12/96 3/14-5/15 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Intellimatch 2/23/96 2/21-3/20 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Interactive Computer 2/21/96 2/21-3/22 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* InterArt 2/14/96 2/1-4/14 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Internet 2/14/96 2/1-4/14 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* Internet Shopping 2/29/96 3/04-4/03 [ ] [ ]
Network
-------------------------------------------------------------------------------------------------------------
* Internet Shopping Ntwk [ ] 7/24/95 7/24 to 3/31/97 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
* InterZine 3/5/96 3/1-3/31 [ ] [ ]
-------------------------------------------------------------------------------------------------------------
-------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
57
62
- ----------------------------------------------------------------------------------------------------
*Loop Ventures 2/26/96 2/23-2/26 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Market Place MCI [ ] 2/27/96 3/1-3/31 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Mellen Medical 3/6/96 2/24-3/1 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Mellen Medical 3/8/96 3/1-5/31 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Mercury Center 2/16/96 3/18-3/25 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Met Life [ ] 3/11/96 5/11-5/10 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Microsoft [ ] 3/4-4/15 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Microsoft Developer [ ] 2/16/96 2/15-3/29 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Microsoft Int/Exp [ ] 2/13/96 2/19-3/4 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Microsoft Internet [ ] 3/14-3/15 [ ] [ ]
Explorer
- ----------------------------------------------------------------------------------------------------
*Microsoft MSN [ ] 2/20/96 2/20-3/19 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Microsoft MSN [ ] 2/20/96 2/21-3/19 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Microsoft/Backoffice [ ] 2/26-3/25 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Milestone 3/15/96 3/13-4/12 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Milestone 2/16/96 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Millipore [ ] 3/6/96 3/2-4/1 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Modern Media 12/02-12/31/95 [ ] [ ]
(VJB approved)
- ----------------------------------------------------------------------------------------------------
*Multiactive Technology 2/14/96 3/1-4/1 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Nationwide Wholesale 3/6/96 3/11-3/25 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*NECX Direct [ ] 11/17/95 1/1-6/30/96 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Net Profit 3/12/96 3/13-4/12 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Netline 3/7/96 3/7-4/1 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Netscape [ ] 1/3/96 1/03-7/02/96 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Network Appliance 1/18/96 3/1-4/30 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Nissan [ ] 3/4/96 2/26-3/31 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Nynex Information [ ] 1/12/96 1/15-01/15/976 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Onsale 3/15/96 3/14-4/16 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Open Communication 3/13/96 3/6-4/5 [ ] [ ]
Ntwk
- ----------------------------------------------------------------------------------------------------
*Original Services 3/1/96 3/11-4/1 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
*Paragraph Intl 2/20/96 2/15-3/15 [ ] [ ]
- ----------------------------------------------------------------------------------------------------
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
58
63
------------------------------------------------------------------------------------------
* Process Software 3/4/96 2/29-3/31 [ ] [ ]
------------------------------------------------------------------------------------------
* Remax 3/1/96 2/29-3/29 [ ] [ ]
------------------------------------------------------------------------------------------
* Rent Net [ ] 11/3/95 11/3-11/2/96 [ ] [ ]
------------------------------------------------------------------------------------------
* Rogue Wave Software 2/9/96 2/26-3/25 [ ] [ ]
------------------------------------------------------------------------------------------
* Rogue Wave Software 2/21/96 2/26-3/25 [ ] [ ]
------------------------------------------------------------------------------------------
* Roxanne Labs 3/11/96 3/13-4/12 [ ] [ ]
------------------------------------------------------------------------------------------
* Salon Internet 2/21/96 3/1-3/15 [ ] [ ]
------------------------------------------------------------------------------------------
* Schine Online 3/5/96 3/25-4/24 [ ] [ ]
------------------------------------------------------------------------------------------
* Schwabb [ ] 1/20/96 2/16-3/31 [ ] [ ]
------------------------------------------------------------------------------------------
* SportsLine 3/12/96 3/1-3/31 [ ] [ ]
------------------------------------------------------------------------------------------
* Starwave [ ] 2/8/96 2/14-3/26 [ ] [ ]
------------------------------------------------------------------------------------------
* Starwave 3/1/96 3/1-4/1 [ ] [ ]
------------------------------------------------------------------------------------------
* Starwave 3/4/96 3/4-4/4 [ ] [ ]
------------------------------------------------------------------------------------------
* Swatch [ ] 2/28/96 3/1-4/2 [ ] [ ]
------------------------------------------------------------------------------------------
* Telebase 3/1/96 2/17-3/16 [ ] [ ]
------------------------------------------------------------------------------------------
* Times Mirror 2/26/96 2/22-3/21 [ ] [ ]
------------------------------------------------------------------------------------------
* TSDX 2/16/96 2/20-4/20 [ ] [ ]
------------------------------------------------------------------------------------------
* Unlocked 3/10/96 2/25-3/25 [ ] [ ]
------------------------------------------------------------------------------------------
* US Web [ ] 3/14-4/1 [ ] [ ]
------------------------------------------------------------------------------------------
* Virtual Vineyards 3/4/96 3/1-4/1 [ ] [ ]
------------------------------------------------------------------------------------------
* Visible Light 3/12/96 3/1-3/31 [ ] [ ]
------------------------------------------------------------------------------------------
* Voice Recognition 3/12/96 3/6-4/7 [ ] [ ]
------------------------------------------------------------------------------------------
* Wall Data [ ] 3/9/96 3/1-4/1 [ ] [ ]
------------------------------------------------------------------------------------------
* White Pine [ ] 1/26/96 [ ] [ ]
------------------------------------------------------------------------------------------
* Zurich Direct 12/19/96 1/16-4/15 [ ] [ ]
------------------------------------------------------------------------------------------
* On Technology 3/10/96 3/8-6/8 [ ] [ ]
------------------------------------------------------------------------------------------
* Paragraph 3/15-4/1 [ ] [ ]
------------------------------------------------------------------------------------------
* [ ] [ ]
==========================================================================================
- -------------------------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
59