MARKETING AGREEMENT
Agreement dated March 12, 1996 by and between REUTERS NEWMEDIA INC., with its
principal office located at 1700 Broadway, New York, New York 10019 ("Reuters"),
and Sportsline USA, Inc. with its principal office at 6340 N.W. 5th Way, Fort
Lauderdale, Florida 33309 ("Sportsline").
1. DEFINITIONS
1.1. "Affiliate" means, with respect to any given Person, any other
Person directly or indirectly Controlling, Controlled by, or
under common Control with, such Person.
1.2. "AGREEMENT" means this agreement, as it may be amended from
time to time in accordance with Section 15.6.
1.3. "BUSINESS DAY" means a day that banks are open for business in
New York City.
1.4. "CONTENT" means text, information, data, images (still and
moving) and sound recordings.
1.5. "CONTROL" over a Person means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through
the ownership of voting securities or other equity interest,
representation on its board of directors or body performing
similar functions, by contract or otherwise. The terms
"Controlling" and "Controlled" will have corollary meanings.
1.6. "CUSTOMIZED SITE" means a version of the Sportsline Service
that is only available to a Reuters Subscriber accessing the
Sportsline Site from a Reuters Product.
1.7. "DAMAGES" means liabilities, damages, awards, settlements,
losses, claims and expenses, including reasonable attorney's
fees and expenses and costs of investigation.
1.8. "FOREIGN SPORTS SERVICE" means (a) any Internet service,
including a site on the World Wide Web (other than the
Internet services currently provided by Sportsline), (b) any
wireless service, or (c) any proprietary on-line service, in
each case only to the extent that such service provides sports
news and/or information targeted at, and is primarily marketed
and sold to persons located in, a specific country or region
outside the United States.
1.9. "INCLUDING" means including but not limited to.
1.10. "Intellectual PROPERTY RIGHTS" means any patent, design right,
copyright, trademark, service mark (and any application or
registration respecting the foregoing), database right, trade
secret, know-how and/or other present or future intellectual
property right of any type, wherever in the world enjoyable.
1.11. "Laws " means applicable laws, regulations, rules or orders of
any government, administrative authority or court.
1.12. "Mirror Site " shall mean an Internet site which contains the
exact form and Content (including identical pages) of a parent
Internet site which (i) is located at a geographic location
distinct from such parent Internet site and (ii) is created
for the purpose of improving performance and accessibility to
such parent Internet site PROVIDED, that the term "Mirror
Site" shall not include any Intemet site which is licensed to
or otherwise controlled by an on-line service provider.
1.13. "Person" means any individual, corporation, limited-liability
company, partnership. firm, joint venture, association,
joint-stock company, trust, or other entity or organization,
including a government or political subdivision or an agency
or instrumentality thereof.
1.14. "Reuters Competitor" means Dow Jones, Inc., Bloomberg,
Knight-Ridder, Agence France Presse, The Associated Press,
United Press International, Inc., Telerate, Inc., Global
Financial Information Corp., Individual, Inc. or M.A.I.D, and
any entity that is engaged as a significant part of its
business in the provision of financial news and data.
1.15. "Reuters Product" means any Reuters product or service,
including the Reuters RT.
1.16. "Reuters Subscriber " means any Person that receives any
Reuters Product.
1.17. "Sportsline Content" means all Content created by Sportsline
employees and owned exclusively by Sportline, and all Content
provided to Sportsline by third parties that Sportsline is
allowed to redistribute through Reuters without additional
cost or expense to Sportsline for granting such redistribution
rights.
1.18. "Sportsline Site " means the Sportsline World Wide Web site
that provides sports news, information and related services
located at URL http://www.sportsline.com and any existing or
future Mirror Sites to such site.
2. TERM
2.1. This Agreement will take effect on March 12, 1996, and, unless
terminated earlier pursuant to Section 14, will terminate on
March 12, 2001 (the "Term").
3. FOREIGN SPORTS SERVICE
3.1. For each Foreign Sports Service that Sportsline considers
launching during the Term, it shall provide Reuters with a 60
day exclusive negotiation period, during which Sportsline
shall negotiate only with Reuters with respect to: (a) the
provision of non-United States sports news and information to
be included in such a Service; (b) the branding of such a
Service; and (c) an investment in such a Service, PROVIDED
that Sportsline may also negotiate with other parties approved
by Reuters, which approval shall not be unreasonably withheld.
All such negotiations shall be conducted in good faith between
the parties.
3.2. In the event that the parties are unable to reach an agreement
with respect to the Foreign Sports Service, Sportsline may
not, in any event, enter into an agreement with
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another Person on terms that are equivalent to, or less
favorable to Sportsline than, the terms offered by Reuters,
unless Sportsline has offered Reuters a reasonable opportunity
to agree to those terms.
4. CUSTOMIZED SITE
4.1. The parties shall negotiate in good faith an agreement
pursuant to which Sportsline will develop the Customized Site
such that if a Reuters Subscriber accesses the Sportsline
Site, the Customized Site will be displayed. This agreement
shall contain provisions under which Reuters is paid a share
of the revenue from such Customized Site. Sportsline's
obligations are subject to the technological feasibility of
providing the Customized Site.
4.2. If Sportsline develops the Customized Site as provided herein,
Sportsline shall not, during the Term, configure the
Sportsline Site to provide a service similar to the Customized
Site to any Reuters Competitor.
5. USE OF SPORTSLINE CONTENT
5.1. Sportsline agrees that it will grant Reuters the exclusive
right to redistribute Sportsline Content within a Reuters
Product as part of a sports news service. The parties shall
negotiate in good faith an agreement setting forth, among
other things, the royalty to be paid by Reuters to Sportsline
for inclusion of the Sportsline Content in a Reuters product
or service. The grant of rights will not prohibit Sportsline
from providing Sportsline Content to the Sportsline Site or
from licensing Sportsline Content to any Web Site or online
services, PROVIDED that such other Web Site or online services
is not owned or operated by a Reuters Competitor, and PROVIDED
further that such Content is not provided by Sportsline as
part of a general sports news service.
5.2. Sportsline shall use its best efforts to enter into agreements
with third Person Content providers that permit Sportsline to
grant Reuters the rights of redistribution set forth in
Section 5.1.
6. SUPPLY OF REUTERS CONTENT
6.1. In the event that Sportsline seeks to license Content
specifically related to sports outside the United States for
use in the Sportsline Site or for use in any other Sportsline
venture in the United States, then PROVIDED such Content is
already owned, licensed or produced by Reuters, Sportline
shall provide Reuters with reasonable notice thereof and an
opportunity to make a proposal for the provision of such
Content. Sportsline agrees that if the Reuters proposal is
equivalent to, or better than, a proposal received from a
third Person, Sportsline shall license such Content from
Reuters. Nothing herein shall prohibit Sportsline from
obtaining any content covered by this Section 6.1 from any
third Person to the extent such content is already available
to Sportsline under agreements with such third parties.
7. LIMITATION OF LIABILITY
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7.1. Neither party will be liable for any failure to perform any
obligation hereunder, or from any delay in the performance
thereof, due to causes beyond its control, including
industrial disputes of whatever nature, acts of God, public
enemy, acts of government, failure of telecommunications, fire
or other casualty.
7.2. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS AS TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER
WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS, WHETHER
EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING.
EACH PARTY HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY
WARRANTY, CONDITION, GUARANTY OR REPRESENTATION MADE BY THE
OTHER.
7.3. Under no circumstances will either party, its Affiliates or
their respective officers, directors, employees be liable for
any indirect, incidental, special or consequential damages
with respect to each party's obligations under this Agreement,
regardless of whether such damages could have been foreseen or
prevented.
8. REPRESENTATIONS AND WARRANTIES
8.1. Sportsline represents and warrants to Reuters as of the date
hereof that:
(a) The execution, delivery and performance by Sportsline
of this Agreement do not and will not (i) violate the
organizational documents of Sportsline, (ii) violate
any applicable law, rule, regulation, judgment,
injunction, order or decree, or (iii) require any
notice or consent or other action by any Person
under, constitute a default under, or give rise to
any right of termination, cancellation or
acceleration of any right or obligation of Sportsline
or to a loss of any benefit to which Sportsline is
entitled under, any agreement or other instrument
binding upon Sportsline or any license, franchise,
permit or other similar authorization held by
Sportsline.
(b) To the best of Sportsline's knowledge, the Sportsline
Content to be provided to Reuters hereunder does not
violate the Intellectual Property Rights of any third
Person.
8.2. Reuters hereby represents and warrants to Sportsline as of the
date hereof that:
(a) The execution, delivery and performance by Reuters of
this Agreement do not and will not (i) violate the
organizational documents of Reuters, (ii) violate any
applicable law, rule, regulation, judgment,
injunction, order or decree, or (iii) require any
notice or consent or other action by any Person
under, constitute a default under, or give rise to
any right of termination, cancellation or
acceleration of any right or obligation of Reuters or
to a loss of any benefit to which Reuters is entitled
under, any agreement or other instrument binding upon
Reuters or any license, franchise, permit or other
similar authorization held by Reuters.
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(b) To the best of Reuters knowledge, any Reuters content to be
provided to Sportline hereunder does not violate the
Intellectual Property Rights of any third person.
9. INDEMNIFICATION
9.1. Sportsline will indemnify and hold the Reuters Group and
officers, directors and employees harmless from and against
any and all Damages resulting from or arising out of (a) the
Sportsline Site or any other activities of Sportsline,
including infringement by any Sportsline Content of any third
Person Intellectual Property Rights; (b) any misrepresentation
or breach of representation or warranty of Sportsline
contained herein; or (c) any breach of any covenant or
agreement to be performed by Sportsline hereunder.
9.2. Reuters will indemnify and hold Sportsline and its Affliates
and their respective officers, directors and employees
harmless from and against any and all Damages resulting from
or arising out of (a) the Reuters Products or any activities
of Reuters, including infringement by any Reuters Content of
any third Person Intellectual Property Rights, (b) any
misrepresentation or breach of representation or warranty of
Reuters contained herein; or (c) any breach of any covenant or
agreement to be performed by Reuters hereunder.
10. TERMINATION
10.1. In addition to any other remedy available at law or in equity,
either party may terminate this Agreement immediately, in
whole or in part, without further obligation to the other
party in the event of:
(a) any breach of this Agreement by the other party that
is not remedied within 30 days notice of such breach
in writing; or
(b) the other party's making an assignment for the
benefit of its creditors, the filing of a voluntary
or involuntary petition under any bankruptcy or
insolvency law, under the reorganization or
arrangement provisions of the United States
Bankruptcy Code, or under the provisions of any law
of like import in connection with the other party, or
the appointment of a trustee or receiver for the
other party or its property.
11. GENERAL
11.1. Nothing will be deemed to limit or restrict Reuters from
entering into agreements with any other Person covering
services similar to the Sportsline Site or from offering such
similar services itself, PROVIDED, that Sportsline shall be
relieved from its obligations hereunder to the extent Reuters
enters into an agreement with a competitor of Sportline with
respect to the subject matter of this Agreement or in the
event Reuters offers a service that is competitive with the
Sportsline Site.
11.2. Neither party will make or issue any external press statement
regarding the terms of this
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Agreement unless (a) it has received the express written
consent of the other party, which will not be unreasonably
withheld or (b) it is required to do so by Law or REGULATION.
11.3. This AGREEMENT AND ANY AND ALL ADDENDA, schedules or exhibits
attached hereto represent the entire agreement of the parties
regarding the subject matter hereof. There are no other oral
or written collateral representations, agreements, or
understandings regarding the subject matter hereof.
11.4. This Agreement will be deemed to have been executed and
delivered in the State of New York and it will be governed by
and construed in accordance with the laws of New York.
11.5. All notices, requests and other communications to any party
hereunder will be in writing (including facsimile transmission
or similar writing) and will be given to such party at its
address or telecopy number set forth below or at such other
address or telecopy number as such party may hereafter specify
for such purposes. Each such notice, request or other
communication will be effective (i) if given by telecopy, when
such telecopy is transmitted to the telecopy number specified
in this Section and confirmation of receipt is obtained or
(ii) if given by any other means, when received at the address
specified below.
To Reuters:
Reuters NewMedia Inc.
I 700 Broadway
New York, New York 10019
(212) (Facsimile)
Attn: Senior Vice President
With a copy to:
Reuters America Inc.
I 700 Broadway
New York, New York 10019
(212) 307-9175 (Facsimile)
Attn: General Counsel
To Sportsline:
Sportsline USA, Inc.
N.W. 5th Way
Fort Lauderdale, Florida 33309
Attn: President
(954) 351-2170 (Facsimile)
11.6. This Agreement will be binding upon and inure to the benefit
of the parties, their respective heirs, personal
representatives, successors and assigns. Neither party may
assign any of its rights or delegate any of its duties under
this Agreement without the prior written consent of the other,
PROVIDED that either party may assign this Agreement to any
Affiliate without the necessity of obtaining consent from the
other party.
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11.7. There is no joint venture, partnership, agency or fiduciary
relationship existing between the parties and the parties do
not intend to create any such relationship by this Agreement.
11.8. This Agreement may not be amended, modified or superseded, nor
may any of its terms or conditions be waived unless expressly
agreed to in writing by both parties. The failure of either
party at any time or times to require full performance of any
provision hereof will in no manner affect the right of such
party at a later time to enforce the same.
11.9. If any provision or term of this Agreement, not being of a
fundamental nature, is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of
the remainder of this Agreement will not be affected.
11.10. The provisions of Section 8 and any and all disclaimers and
indemnities contained herein or in any schedules to this
Agreement will survive the termination of this Agreement.
REUTERS NEWMEDIA INC. SPORTSLINE USA, INC.
By: By: /s/ MICHAEL LEVY
---------------------- ------------------
Title: Executive Vice President Title: President
Date: 3/11/96 Date: 3/11/96
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TYPE: EX-10.9
SEQUENCE: 7
EXHIBIT 10.9
COMMERCIAL GUARANTY
Borrower: Sportsline U.S.A., Inc. Lender: Silicon Valley Bank, A
6340 N.W. 5th Way California chartered bank with
Fort Lauderdale, FL 33309 a Loan Production Office
located at 40 William Street
Wellesley, MA 02181
Guarantor: Kleiner Perkins Caulfield & Byers VII, L.P.
2750 Sand Hill Road
Menlo Park, CA 94025
AMOUNT OF GUARANTY. The principal amount of this Guaranty is One Million Five
Hundred Thousand & 00/100 Dollars ($1,500,000.00).
CONTINUING GUARANTY. For good and valuable consideration, Kleiner Perkins
Caufield & Byers VII, LP. ("Guarantor") absolutely and unconditionally
guarantees and promises to pay to Silicon Valley Bank ("Lender") or its order,
in legal tender of the United States of America, the indebtedness (as that term
is defined below) of SPORTSLINE USA, INC. ("Borrower") to Lender on the terms
and conditions set forth in this Guaranty. The obligations of Guarantor under
this Guaranty are continuing.
DEFINITIONS. The following words shall have the following meanings when used
in this Guaranty.
Borrower. The word "Borrower" means SPORTSLINE USA, INC.
Guarantor. The word "Guarantor" means Kleiner Perkins Caufield & Byers
VII, LP.
Guaranty. The word "Guaranty" means this Guaranty made by Guarantor for
the benefit of lender dated December 13, 1995.
Indebtedness. The word "Indebtedness" shall mean and refer to the
obligations of Borrower under that certain Promissory Note, dated December
13, 1995, in the original principal amount of One Million Five Hundred
Thousand and 00/100 Dollars ($1,500,000.00, together with all renewals,
extensions and modifications thereof; provided, however that any renewal
extension, or change (other than by reason of acceleration after an event
of default) in the time that payment of the indebtedness is due or any
change in the interest rate shall have been consented to in writing by
Guarantor.
Lender. The word "Lender" means Silicon Valley Bank a California chartered
bank, its successors and assigns.
Related Documents. The words "Related Documents" mean and include without
imitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgage, deeds
of trust, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the indebtedness of
this Guaranty.
MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall
not exceed at any one time the sum of the principal amount of $1,500,000.00,
plus all interest thereon, plus any costs and expenses (including attorneys'
fees) awarded to a prevailing party in litigation in connection with the
enforcement of the indebtedness of this Guaranty.
The above limitation on liability is not a restriction on the amount of the
Indebtedness of Borrower to lender either in the aggregate or at any one time.
If Lender presently holds one or more guaranties, or hereafter receives
additional guaranties from Guarantor, the rights of Lender under all guaranties
shall be cumulative. This Guaranty shall not (unless specifically provided below
to the contrary) affect or invalidate any such other guaranties. The liability
of Guarantor will be the aggregate liability of Guarantor under the terms of
this Guaranty and any such other unterminated guaranties.
NATURE OF GUARANTY. Guarantor's liability under this Guaranty shall be open and
continuous for so long as this Guaranty remains in force. Guarantor intends to
guarantee at all times the performance and prompt payment when due, whether at
maturity or earlier by reason of acceleration or otherwise, of all indebtedness
within the limits set forth in the preceding section of this Guaranty.
Accordingly, no payments made upon the indebtedness will discharge or diminish
the continuing liability of Guarantor in connection with any remaining portions
of the indebtedness or any of the indebtedness which subsequently arises or is
thereafter incurred or contracted.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or nay notice to Guarantor or
to Borrower, and will continue in full force until all indebtedness incurred or
contracted before receipt by lender of any notice of revocation shall have been
fully and finally paid and satisfied and all other obligations of Guarantor
under this Guaranty shall have been performed in full. If Guarantor elects to
revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written
notice of revocation must be delivered to Lender at the address of Lender listed
above or such other place as Lender may designate in writing. Written revocation
of this Guaranty will apply only to advances or new indebtedness created after
actual receipt by lender of Guarantor's written revocation. For this purpose and
without limitation, the term "now indebtedness' does not include indebtedness
which at the time of notice of revocation is contingent, unliquidated,
undetermined or not due and which later becomes absolute, liquidated, determined
or due. This Guaranty will continue to bind Guarantor for all indebtedness
incurred by Borrower or committed by lender prior to receipt of Guarantor's
written notice of revocation, including any substitutions or modifications of
the indebtedness, and, provided that the same has been consented to in writing
by Guarantor, any renewal, extension of change in the time that payment of the
indebtedness is due or change in the interest rate. All renewals, extensions,
substitutions, and modifications of the indebtedness granted after Guarantor's
revocation, are contemplated under this Guaranty and, specifically will not be
considered to be new indebtedness. Release of any other guarantor or termination
of any other guaranty of the indebtedness shall not affect the liability of
Guarantor under this Guaranty. It is anticipated that fluctuations may occur in
the aggregate amount of indebtedness covered by this Guaranty, and it is
specifically acknowledged and agreed by Guarantor that reductions in the amount
of indebtedness, even to zero dollars ($0.00), prior to written revocation of
this Guaranty by Guarantor shall not constitute a termination of this Guaranty.
This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and
assigns so long as any of the guaranteed indebtedness remains unpaid and even
though the indebtedness guaranteed may from time to time be zero dollars
($0.00).
GUARANTORS AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before
or after any revocation hereof, without notice or demand and without lessening
Guarantor's liability under this Guaranty, from time to time: (a) prior to
revocation as set forth above, to make one or more additional secured or
unsecured loans to Borrower, to lease equipment or other goods to Borrower, or
otherwise to extend additional credit to Borrower; (b) to modify the terms of
the indebtedness as Lender deems appropriate (c) to take and hold security for
the payment of the indebtedness, and exchange, enforce, waive, subordinate, fail
or decide not to perfect, and release any such security, with or without the
substitution of new collateral; (d) to release, substitute, agree not to sue, or
deal with any one or more of Borrower's sureties, endorsers, or other guarantors
on any terms or in any manner lender may choose; (e) to determine how, when and
what application of payments and credits shall be made on the indebtedness; (f)
to apply such security and direct the order or manner of sale thereof, including
without limitation, any non judicial sale permitted by the terms of the
controlling security agreement of deed of trust, as Lender in its discretion may
determine; (g) to sell, transfer, assign, or grant participation in all or any
part of the indebtedness; and (h) to assign or transfer this Guaranty in whole
or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (a) no representation or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(b) this Guaranty is executed at Borrower's request and not at the request of
Lender; (c) Lender has made no representation to Guarantor as to the
creditworthiness of Borrower, and (d) Guarantor has established adequate means
of obtaining from Borrower on a continuing basis information regarding
Borrower's financial condition. Guarantor agrees to keep adequately informed
from such means of any facts, events, or circumstances which might in any way
affect Guarantor's risks under this Guaranty, and Guarantor further agrees that,
absent a request for information, lender shall have no obligation to disclose to
Guarantor any information or documents acquired by Lender in the course of its
relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law. Guarantor waives
any right to require Lender to (a) make any presentment, protest, demand, or
notice of any kind, including notice of change of any terms of repayment of the
indebtedness, default by Borrower or any other guarantor or surety, any action
or nonaction taken by Borrower, lender, or any other guarantor or surety of
Borrower, or the creation of new or additional indebtedness; (b) proceed against
any person, including Borrower, before proceedings against Guarantor; (c) apply
any payments or proceeds received against the indebtedness in any order; (d)
give notice of the terms, time, and place of any sale of the collateral pursuant
to the Uniform Commercial Code or any other law governing such sale; (e)
disclose any information about the indebtedness, the Borrower, the collateral,
or any other guarantor or surety, or about any action or nonaction of Lender; or
(f) pursue any remedy or course of
action in lender's power whatsoever.
Guarantor also waives any and all rights or defenses arising by reason of (a)
any disability or other defense of Borrower, any other guarantor or surety or
any other person; (b) the cessation from any cause whatsoever, otters than
payment in full, of the indebtedness; (c) the application of proceeds of the
indebtedness by Borrower for purposes other than the purposes understood and
intended by Guarantor and Lender; (d) any act or omission or commission by
lender which directly or indirectly results in or contributes to the discharge
of Borrower or any other guarantor or surety, or the indebtedness, or the loss
or release of any collateral by operation of law or otherwise; or (e) any
modification or change in terms of the indebtedness, whatsoever, including
without limitation, the renewal, extension, acceleration, or other change in the
time and that payment of the indebtedness is due and any change in the interest
rate; provided, however, that any renewal, extension, or change (other than by
reason of an acceleration after an occurrence of an event of default) in the
time that payment of the indebtedness is due and any change in the interest rate
shall have been consented to in writing by Guarantor, and including any such
modification or change in terms after revocation of this Guaranty on
indebtedness incurred prior to such revocation. Until all indebtedness is paid
in full, Guarantor waives all rights and nay defenses Guarantor may have arising
our of any election of remedies by Lender even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed Guarantor's rights of subrogation and reimbursement
against Borrower or any other guarantor or surety.
Guarantor further waives any right to enforce any remedy Lender may have against
Borrower or any other guarantor, surety, or other person, and further, Guarantor
waives any right to participate in any collateral for the Indebtedness now or
hereafter held by Lender.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set froth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
wavier shall be effective only to the extent permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
indebtedness of Borrower to Lender, whether now existing or hereafter crated,
shall be prior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereafter have against
Borrower relating to the indebtedness. In the event of insolvency and consequent
liquidation of the assets of Borrower, through bankruptcy, by an assignment for
the benefit of creditors, by voluntary liquidation, or otherwise, the assets of
Borrower applicable to the payment of the claims or both Lender and Guarantor
shall be paid to Lender and shall be first applied by Lender to the indebtedness
of Borrower to Lender. Guarantor does hereby assign to Lender all claims which
it may have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower, provided however, that such assignment shall be
effective only for the purpose of assuring to lender full payment in legal
tender of the indebtedness. If Lender so requests, any notes or credit
agreements now or hereafter evidencing any debts or obligations of Borrower to
Guarantor shall be marked with a legend that the same are subject to this
Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender hereby
is authorized, in the name of Guarantor, from time to time to execute and the
financing statements and continuation statements and to execute such other
documents and to take such other actions as Lender deems necessary or
appropriate to perfect, preserve and enforce its rights under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
Applicable Law. This Guaranty has been delivered to Lender and accepted by
lender in the State of California. If there is a lawsuit, Guarantor agrees
upon lender's request to submit to the jurisdiction of the courts of Santa
Clara County, State of California. Lender and Guarantor hereby waive the
right to any jury trial in any action, proceeding, or counterclaim brought
by either Lender or Guarantor against the other. (Initial Here
______________) This Guaranty shall be governed by and construed in
accordance with the laws of the State of California.
Expenses. Guarantor agrees that the prevailing party in any litigation
shall be entitled to recover any and all expenses (including attorneys'
fees) incurred by it in enforcing this Guaranty.
Notices. All notices required to be given by either party to the other
under this Guaranty shall be in writing, may be sent by telefacsimile,
and, except for revocation notices by Guarantor, shall be effective when
actually delivered or when deposited with a nationally recognized
overnight courier, or when deposited in the United States mail, first
class postage prepaid, addressed to the party to whom the notice is to be
given at the address shown above or to such other addresses as either
party may designate to the other in writing. All revocation notices by
Guarantor shall be in
writing and shall be effective only upon delivery to lender as provided
above in the section titled "DURATION OF GUARANTY." If there is more than
one Guarantor, notice to any Guarantor will constitute notice to all
Guarantors. For notice purposes, Guarantor agrees to keep Lender informed
at all times of Guarantor's current address.
Interpretation. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and construction
so require: and where there is more than one Borrower named in this
Guaranty or when this Guaranty is executed by more than one Guarantor, the
words "Borrower" and "Guarantor" respectively shall mean all and any one
or more of them. The words "Guarantor," "Borrower," and "Lender" include
the heirs, successors, assigns, and transferees of each of them. Caption
headings in this Guaranty are for convenience purposes only and are not to
be used to interpret or define the provisions of this guaranty. If a court
of competent jurisdiction finds an8y provision of this Guaranty to be
invalid or unenforceable as to any person or circumstance, such finding
shall not render that provision invalid or unenforceable as to any other
persons or circumstances, and all provisions of this Guaranty in all other
respects shall remain valid and enforceable. If any one or more of
Borrower or Guarantor are corporations or partnerships, it is not
necessary for lender to inquire into the powers of Borrower or Guarantor
or of the officers, directors, partners, or agents acting or purporting to
act on their behalf, and any indebtedness made or created in reliance upon
the professed exercise of such powers shall be guaranteed under this
Guaranty.
Waiver. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Lender. No
delay or omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A wavier by lender
of a provision of this Guaranty shall not prejudice or constitute a wavier
of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by
Lender, nor any course of delaying between Lender and Guarantor, shall
constitute a waiver of any of Lender's rights or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole reasonable discretion of Lender.
REVIVAL OF GUARANTY. Guarantor's liability under this Guaranty shall be
reinstated and revived with respect to any amount paid by any party on account
of the indebtedness which shall thereafter be required to be restored or
returned by lender as a result of bankruptcy, or reorganization of such party or
for any other reason all as though such amount had never been paid.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY." NO FORMAL
ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THE GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED DECEMBER 13, 1995.
GUARANTOR:
Kleiner Perkins Caufield & Byers VII, LP.
By: KPCB VII Associates, LP., its General Partner
By: /s/ JOSEPH S. LACOB
---------------------
Name: Joseph S. Lacob General Partner
PARTNERSHIP CERTIFICATE TO
GUARANTEE / SUBORDINATE
Borrower: SPORTSLINE USA, INC. Bank: Silicon Valley Bank a California
chartered bank
6340 NW5th Way doing business as "Silicon
Valley East"
Fort Lauderdale, FL 33309 40 William Street, Suite 350
Wellesley,MA 02181
Partnership: Kleiner Perkins Caufield & Byers VII,
L.P.
2750 Sand Hill Road
Menlo Park, CA 94025
In consideration of the proposed Promissory Note of even date herewith, in the
original principal amount of $1,500,000.00 (the "Bridge Note") between
SportsLine USA, Inc. ("Borrower") and Silicon Valley Bank ("Bank"), the persons
signing below on behalf of KPCB VII Founders Fund, L.P. (the "Partnership")
jointly and severally represent and certify to Bank and agree with Bank that
they are the sole general partners of the Partnership that the Partnership name
shown above is the complete and correct name of the Partnership.
PARTNERSHIP EXISTENCE. The Partnership is duly organized, existing and in good
standing under the laws of the State of California. In addition. the Partnership
is qualified and has filed or obtained all necessary filings. governmental
licenses and approvals from each state in which the Partnership is doing
business.
PARTNERSHIP AGREEMENTS. All the general partners of the Partnership have met to
consider the matters set forth below and agree with Bank that ANY ONE (1) of the
undersigned general partners of the Partnership acting for and on behalf of the
Partnership and as its act and deed be and he or she hereby is. authorized and
empowered in the name of the Partnership:
GUARANTY. To guarantee the Bridge Note (the "Guaranty").
EXECUTE THE GUARANTY AGREEMENT. To execute and deliver to Bank the form of
Commercial Guaranty Agreement.
SUBORDINATE INDEBTEDNESS. To execute and deliver to Bank the form of
subordination agreement. subordinated note and any other related documents
which may be submitted by or approved by Bank, and which shall evidence
the terms and conditions under and pursuant to which such subordinations,
are given and also to execute and deliver to Bank any other written
instruments, of any kind or nature. which may be necessary or proper in
connection with or pertaining to the giving of subordinations
FURTHER ACTS. To do and perform such other acts and things and to execute
and deliver such other documents and agreements as he or she may in his or
her discretion deem reasonably necessary or proper in order to carry into
effect the provisions of this Certificate.
PARTNERSHIP CERTIFICATE TO
GUARANTEE / SUBORDINATE
Page 2
RATIFICATION. The Partnership hereby ratifies and confirms the acts of its
partners. agents or employees in heretofore entering into any agreement related
to the Bridge Note in favor of Bank together with any act performed in relation
thereto.
CONTINUING VALIDITY. These agreements shall remain in full force and effect
until written notice of their revocation shall have been delivered to and
received by Bank. Any such notice shall not affect any of the Partnership's
agreements or commitments in effect at the time notice is given.
IN WITNESS WHEREOF, we each have read all the provisions of this
Partnership Certificate to Guarantee/Subordinate, and we each jointly and
severally and on behalf of the Partnership certify and agree to its terms and
attest that the signatures set opposite the names listed below are their genuine
signatures. This certificate is dated December 13, 1995.
CERTIFIED TO AND ATTESTED BY:
Kleiner Perkins Caufield & Byers Vll, L.P.
By: KPCB VII Associates, L.P.
By: /s/ JOSEPH S. LACOB
-------------------
Joseph S. Lacob, General Partner
By: /s/ BROOK M. BYERS
------------------
Brook M. Byers, General Partner
CERTIFICATE FOR USE WITH A PARTNERSHIP WHICH
IS A PARTNER IN A PARTNERSHIP COMPANY GUARANTOR/ SUBORDINATOR
Borrower: SPORTSLINE USA, INC. Bank: Silicon Valley Bank a California
chartered bank
6340 NW5th Way doing business as "Silicon
Valley East"
Fort Lauderdale, FL 33309 40 William Street, Suite 350
Wellesley, MA 02181
Partnership: Kleiner Perkins Caufield & Byers VII,
L.P.
2750 Sand Hill Road
Menlo Park, CA 94025
The undersigned hereby certify to Silicon Valley Bank ("Bank '):
That they are the sole General Partners of KPCB Vll ASSOCIATES L.P. (the
Partnership') duly organized and existing under the laws of the State of
California.
That the Partnership is a partner in Kleiner Perkins Caufield & Byers VII,
L.P. ("Company").
That any and all fictitious name filings and related publications required
for the Partnership by law have been made.
That the Partnership deems it is in the best interest of Company to
guarantee or grant collateral to support the obligations of Sportsline USA. Inc.
("Borrower") under that certain Promissory Note dated December 13, 1995 in the
original principal amount of $1,500,000.00 (the "Bridge Note") to Silicon Valley
Bank a California charted bank doing business as "Silicon Valley East" ("Bank")
or to subordinate indebtedness owing by Borrower to Company to Borrower's
obligations to Bank.
That all the general partners of the Partnership have met to consider the
matters set forth below and agree with Bank that ANY ONE (1) of the undersigned
general partners of the Partnership acting for and on behalf of the Partnership
and as its act and deed be and he or she hereby is, authorized and empowered in
the name of the Partnership:
(a) To execute Bank's standard form partnership certificate to
guarantee/subordinate executed in connection with the obligations of
Borrower to Bank with such changes as may appear appropriate as a partner
in Company; and
(b) To perform or cause to be performed all further acts and execute and
deliver all further instruments which Bank may deem necessary to carry out
the purposes of this certificate.
That the Partnership hereby ratifies and confirms the acts of its
partners, agents. or employees on behalf of the Partnership in its status as a
partner in Company.
CERTIFICATE FOR USE WITH A PARTNERSHIP WHICH
IS A PARTNER IN A PARTNERSHIP COMPANY / GRANTOR / SUBORDINATOR
Page 2
This certificate shall remain in full force and effect until written
notice of their revocation shall have been delivered to and received by Bank.
Any such notice shall not affect any of the Partnership's agreements or
commitments in effect at the time notice is given.
IN WITNESS WHEREOF, we each have read all the provisions of this
certificate for use with a partnership which is a partner in a partnership
guarantor/grantor/subordinator, and we each jointly and severally and on behalf
of the Partnership certify and agree to its terms and attest that the signatures
set opposite the names listed below are their genuine signatures.
This certificate is dated December 13' 1995.
CERTIFIED TO AND ATTESTED BY:
KPCB VII Associates, L.P. _________________________________
_________________________________
General Partner
By: /s/ JOSEPH S. LACOB
-------------------------------
General Partner JOSEPH S. LACOB
_________________________________
_________________________________
By: /s/ BROOK M. BYERS
------------------ General Partner
General Partner
TYPE: EX-10.10
SEQUENCE: 8
EXHIBIT 10.10
September 1, 1994
Mr. Michael Levy
President
SportsLine USA, Inc.
800 Corporate Drive
Suite 108
Ft. Lauderdale, Florida 33334
Dear Mike:
It has been productive and exciting to meet with you to discuss your
visionary plan for the future of SportsLine USA, Inc. I am intrigued by the
prospect for ultimate success and am interested in working with you and your
process. Therefore, based on earlier conversations, this will confirm that Rick
Horrow/Horrow Sports Ventures ("RH") work with SportsLine USA Inc. ("SL"), or
its appropriate assignees, in all appropriate strategic areas, including, but
not limited to, the following:
I. SCOPE OF SERVICES
1. Provide access to key personnel at union representative offices in
football, baseball, basketball, hockey, and other sports.
2. Assist in providing access to key sports representatives and agents in
all major sports.
3. Assist in providing access and attend meetings with league
representatives including the Offices of the Commissioners of the National
Hockey League, National Basketball Association, Arena Football League, Canadian
Football League, LPGA, and PGA.
4. Assist in providing access and attend meetings with appropriate
representatives of collegiate sports, including National Association of College
Directors of Athletics. NCAA, and others.
5. Assist in providing access and attend meetings with appropriate
television networks with distribution potential, including ESPN,
Prime/NewSport/Sports Channel, and the like.
6. Assist in developing strategic plans and attend meetings concerning
sponsorship solicitation and corporate participation. These meetings could
include representatives of sports marketing firms as well as corporations with
compatible demographic needs.
7. Assist in creating strategic plans concerning golf and tennis,
including programming, travel package development, mail order/merchandising
packages, and the like.
Mr. Michael Levy
September 1, 1994
Page - 2
8. Assist in the development of a strategic plan for access to teams,
stadiums, and arenas and other public spectator facilities. This could include
programming potential as well as joint venture opportunities with management,
marketing, and concessions/novelty/merchandising firms.
9. Assist in the development of promotional and marketing plans, including
the identification of personalities and sports spokesmen in key markets.
10. Provide editorial direction concerning sports business/sports law
issues.
11. Assist in identifying and soliciting key SL personnel, including
business development and marketing executives.
12. Assist in identifying key members for potential celebrity affliations,
including memberships on a future Advisory Committee.
II. TERMS AND CONDITIONS
1. SL will retain RH as Development Consultant and as a Member of the
Board of Directors.
2. Commencing on September 1, 1994, SL will compensate RH at a rate of
$3,000 per month. plus approved expenses, payable on the first day of each
month.
3. At the point of commitment of appropriate additional funding of SL (as
determined by Michael Levy, in his reasonable discretion), RH shall receive a
bonus of $12,000 payable on receipt of said additional funding. Additionally, at
that point, SL will increase its compensation to RH to a rate of $5,000 per
month, effective March 1, 1995.
4. RH shall receive options to purchase 25,000 shares in SL at an initial
offering price of $2, subject to the terms and conditions outlined in
appropriate agreements. These options shall be vested immediately.
5. RH will devote sufficient time and effort to accomplishing the tasks in
the context of other compatible sports development arrangements that RH/HSV is
currently involved in. RH would be available for all appropriate meetings and
events, and would be regularly available on the telephone and otherwise.
6. Either party could terminate this Agreement effective February 28,
l995, with 30 days notice. The Agreement could also be terminated at any time by
mutual consent, or by either party for cause. If the Agreement is terminated,
however, RH shall be entitled to a fee as a Member of the Board of Directors (at
a rate of $500 per month, or increased to $1,000 per month
Mr. Michael Levy
September 1, 1994
Page - 3
if there has been a commitment for additional funding of SL). This termination
provision shall not affect the stock option plan outlined in paragraph 4 above.
7. RTI shall operate under the specific authority of Mike Levy or his
designee(s) as to the consulting services. RH also agrees to refrain from public
statements or to conduct meetings except as otherwise requested by SL. RH also
agrees to hold all information in confidence unless directed otherwise by SL.
Hopefully, this will provide the framework of a mutually beneficial and
productive relationship. I look forward to working with you as soon as possible.
Most sincerely,
/s/ RICHARD B. HORROW
---------------------
Richard B. Horrow
President
RH/bvc
READ, AGREED TO, AND ACCEPTED:
SPORTSLINE USA, INC.
By:/s/ MICHAEL LEVY
-----------------------
Michael Levy, President
25,000 WARRANTS
THESE WARRANTS AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THESE
WARRANTS (THE "WARRANT SHARES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE SECURITIES LAWS.
THE WARRANT SHARFS MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AVAILABLE EXEMPTIONS FRONI SUCH REGISTRATION, PROVIDED THAT THE
SELLER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
CONFIRMING THE AVAILABILITY OF SUCH EXMPI'ION. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE F1NANCLAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
August 31, 1994
SPORTSLINE USA, INC.
WARRANTS FOR THE PURCHASE OF SHARES OF COMMON STOCK
FOR VALUE RECEIVED, SPORTSLINE USA, INC., a Delaware corporation
("SportsLine" or the "Company"), hereby certifies that RICHARD MORROW or his
registered assigns (the "Holder") is entitled, subject to the provisions
contained herein, to purchase from the Company 25,000 fully paid and
non-assessable shares of Common Stock (as defined below), subject to adjustment
as provided herein, at an exercise price per share of Common Stock (the
"Exercise Price") of $2.00.
The term "Common Stock" means the Common Stock, par value $.01 per share,
of the Company as constituted on the date hereof. The number of shares of Common
Stock to be received upon the exercise of these Warrants may be adjusted from
time to time as hereinafter set forth. The shares of Common Stock deliverable
upon such exercise, and as adjusted from time to time, are hereinafter referred
to as "Warrant Stock." The term "Other Securities" means any other securities
that may be issued by the Company in addition to, or in substitution for, the
Warrant Stock.
References herein to the "Company" are to (i) SportsLine and any
successor thereto, (ii) any successor corporation resulting from the merger or
consolidation of SportsLine, or any successor thereto, with another corporation
or (ii) any corporation to which SportsLine, or any successor thereto, has
transferred its property or assets as an entirety or substantially as an
entirety.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of these Warrants, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of these Warrants, if mutilated, the Company
shall execute and deliver new Warrants of like tenor and date. Any such new
Warrants, upon execution and delivery, shall constitute an additional
contractual obligation on the part of the Company, whether or not these Warrants
so lost, stolen, destroyed or mutilated shall be at any time enforceable by
anyone.
The Holder agrees with the Company that these Warrants are issued, and
all the rights hereunder shall be held subject to, all of the conditions,
limitations and provisions set forth herein, including the following:
1. EXERCISE OF WARRANTS. These Warrants may be exercised, in whole or in
part, at any time, or from time to time during the period commencing on the date
hereof and expiring August 31, 1999 [five years after the issue date] by
presentation and surrender of these Warrants to the Company at its principal
office (which on the date hereof is 800 Corporate Drive, Suite 108, Ft.
Lauderdale, Florida 33334), or at the office of its stock transfer agent (which
on the date hereof is the Company), if any, with the Warrant Exercise Form
attached hereto duly executed and accompanied by payment (either in cash or by
certified or official bank check or checks, payable to the order of the Company)
of the Exercise Price for the number of shares specified in such form. If these
Warrants are exercised in part only, the Company shall, upon surrender of these
Warrants for cancellation, execute and deliver new Warrants evidencing the
rights of the Holder thereof to purchase the balance of Warrant Stock (and Other
Securities) purchasable hereunder. Upon receipt by the Company of these
Warrants, together with the Exercise Price, at its office, or by the Company's
stock transfer agent at its office, in proper form for exercise, the Holder
shall be deemed to be the holder of record of the Warrant Stock (and Other
Securities) issuable upon such exercise, notwithstanding that the transfer books
of the Company shall then be closed or that certificates representing such
Warrant Stock (or Other Securities) shall not then be actually delivered to the
Holder. The Company shall pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of Warrant Stock (and
Other Securities) upon exercise of these Warrants.
2. RESERVATION OF SHARES AND OTHER SECURITIES. The Company will at all
times reserve for issuance and delivery upon exercise of these Warrants all
shares of Warrant Stock and other shares of capital stock of the Company (and
Other Securities) from time to time receivable upon exercise of these Warrants.
All such shares (and Other Securities) shall be duly authorized and, when issued
upon such exercise, shall be validly issued, fully paid and non-assessable and
free and clear of all preemptive rights.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issuable upon the exercise of these Warrants, but the
Company shall pay the Holder an amount equal to the fair market value of such
fractional share in lieu of each fraction of a share otherwise
2
issuable upon any exercise of these Warrants, as determined by the Board of
Directors in its reasonable discretion.
4. EXCHANGE OF WARRANTS. These Warrants are exchangeable, without expense,
at the option of the Holder, upon presentation and surrender hereof to the
Company or at the office of its stock transfer agent, if any, for other Warrants
of different denominations, entitling the Holder hereof to purchase in the
aggregate the same number of shares of Warrant Stock (and Other Securities)
purchasable hereunder.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights as a shareholder of the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed herein.
6. ANTI-DILUTION PROVISIONS.
6.1 ADJUSTMENT FOR RECAPITALIZATION. If the Company shall at any time
subdivide its outstanding shares of Common Stock (or Other Securities at the
time receivable upon the exercise of these Warrants) by recapitalization,
reclassification or split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stock to its shareholders, the number of
shares of Common Stock (or Other Securities) subject to these Warrants
immediately prior to such subdivision shall be proportionately increased and the
Exercise Price per share shall be proportionately decreased, and if the Company
shall at any time combine the outstanding shares of Common Stock (or Other
Securities) by recapitalization, reclassification or combination thereof, the
number of shares of Common Stock (or Other Securities) subject to these Warrants
immediately prior to such combination shall be proportionately decreased and the
Exercise Price per share shall be proportionately increased. Any such
adjustments pursuant to this Section 6.1 shall be effective at the close of
business on the effective date of such subdivision or combination or, if any
adjustment is the result of a stock dividend or distribution, then the effective
date for such adjustment shall be the record date therefor.
6.2 ADJUSTMENT FOR REORGANIZATION. CONSOLIDATION. MERGER. ETC. (a) In
case of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable upon the exercise of these
Warrants) after the date hereof or in case after such date the Company (or any
such other corporation) shall consolidate with or merge into another corporation
or convey all or substantially all of its assets to another corporation, then,
and in each such case, the Holder of these Warrants, upon the exercise hereof,
at any time after the consummation of such reorganization, consolidation, merger
or conveyance, shall be entitled to receive, in lieu of the securities and
property receivable upon the exercise of these Warrants prior to such
consummation, the securities or property to which such Holder would have been
entitled upon such consummation if such Holder had exercised these Warrants
immediately prior thereto (but had not exercised any rights with respect to such
securities or property in connection with the reorganization, consolidation,
merger or conveyance); in each such case, the terms of these
3
Warrants shall be applicable to the securities or property receivable upon the
exercise of these Warrants after such consummation.
(b) In any case where the Company shall consolidate with or merge into
another corporation, and shall not be the surviving corporation, or shall convey
all or substantially all of its assets to another corporation, then, and in each
such case, the surviving corporation or the corporation that shall have received
substantially all of the Company's assets shall expressly assume the obligations
of the Company under these Warrants in a form reasonably satisfactory to the
Holder hereof.
6.3 NO DILUTION. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of these Warrants, but will at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder of these Warrants against dilution or other impairment.
Without limiting the generality of the foregoing, while these Warrants are
outstanding, the Company (a) will not permit the par value, if any, of the
shares of Warrant Stock to be above the amount payable therefor upon such
exercise and (b) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue or sell fully paid and
non-assessable shares of Warrant Stock and Other Securities upon the exercise of
these Warrants.
6.4 CERTIFICATE AS TO ADJUSTMENTS. In each case of an adjustment in the
number of shares of Warrant Stock or Other Securities receivable upon the
exercise of these Warrants, the Company at its expense will promptly compute
such adjustment in accordance with the terms of these Warrants and prepare a
certificate executed by an executive officer of the Company setting forth such
adjustment and showing in detail the facts upon which such adjustment is based.
The Company will forthwith mail a copy of each such certificate to the Holder.
6.5 NOTICES OF RECORD DATE. ETC. In case:
(a) the Company shall take a record of the holders of its Common Stock (or
Other Securities at the time receivable upon the exercise of these Warrants) for
the purpose of entitling them to receive any dividend (other than a cash
dividend at the same rate as the rate of the last cash dividend theretofore
paid) or other distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities, or
to receive any other right; or
(b) of any capital reorganization of the Company, any reclassification of
the capital stock of the Company, any consolidation or merger of the Company
with or into another corporation, or any conveyance of all or substantially all
of the assets of the Company to another corporation; or
4
(c) of any voluntary or involuntary dissolution, liquidation or winding up
of the Company;
then, and in each such case, the Company shall mail or cause to be mailed to
each Holder of a Warrant at the time outstanding a notice specifying, as the
case may be, (i) the date on which a record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding up is to take place, and the time, if any,
to be fixed, as to which the holders of record of Warrant Stock (or such other
securities at the time receivable upon the exercise of these Warrants) shall be
entitled to exchange their shares of Warrant Stock (or such other securities)
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up. Such notice shall be mailed at least 20 days prior to the date
therein specified and these Warrants may be exercised prior to said date during
the term of these Warrants.
7. RESTRICTIONS ON TRANSFER OF WARRANTS. WARRANT STOCK AND OTHER
SECURITIES. The Warrant Stock and Other Securities may not be sold, transferred
or otherwise disposed of unless registered under the Securities Act of 1933 (the
"Securities Act") and any applicable state securities laws or pursuant to
available exemptions from such registration, provided that the seller delivers
to the Company an opinion of counsel satisfactory to the Company confirming the
availability of such exemption.
8. LEGEND. Unless the shares of Warrant Stock or Other Securities have
been registered under the Securities Act, upon exercise of any of these Warrants
and the issuance of any of the shares of Warrant Stock or Other Securities, all
certificates representing such securities shall bear on the face thereof
substantially the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT") OR UNDER APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO
AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE SELLER
DELIVERS TO THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION. INVESTORS SHOULD BE AWARE
THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME.
9. NOTICES. All notices required hereunder shall be in writing and shall
be deemed given when telegraphed, delivered personally or within two days after
mailing when mailed by
5
certified or registered mail, return receipt requested, to the Company at its
principal office, or to the Holder at the address set forth on the record books
of the Company, or at such other address of which the Company or the Holder has
been advised by notice in writing hereunder.
10. APPLICABLE LAW. These Warrants shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to
conflicts of law principles.
6
IN WITNESS WHEREOF, the Company has caused these Warrants to be signed on
its behalf, in its corporate name, by its duly authorized officer, all as of the
day and year first above written.
SPORTSLINE USA, INC.
By:
------------------------
Title: President
7
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise Warrants to purchase ____
shares of Common Stock of SportsLine USA, Inc., a Florida corporation, and
hereby makes payment of $__________ in full satisfaction therefor.
--------------------------------
Signature
--------------------------------
Signature, if Jointly held
--------------------------------
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the Holder of the within Warrants)
Name
----------------------------------------------------------------------------
(Please typewrite or print in block letters)
Address
-------------------------------------------------------------------------
--------------------------------------------------------------------------------
Social Security or Taxpayer Identification Number
-------------------------------
8
Marketing Agreement - Reuters NewMedia Inc. and SportsLine USA Inc.
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