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EXHIBIT 10.5
xxxxxx.xxx
This (this "Agreement") is entered into as of March
11, 1998 between xxxxxx.xxx, a California corporation (the "Company"), and
Advanced Technology Ventures IV, L.P., and its affiliated and successor venture
capital funds ("Sponsor").
The Company is in the process of establishing an Internet-based service
for matching pre-screened "seed stage" technology startup investment
opportunities with high quality, pre-screened angel, corporate and venture
capital investors. Sponsor is a venture capital fund which makes investments in
technology companies. Sponsor is making an equity investment in the Company and
also desires to have its name and services prominently featured on the
Company's Website for viewing by entrepreneurs and investors, among others, on
the terms and conditions set forth below.
1. THE COMPANY. The Company will promptly establish and operate an
Internet-based service for matching pre-screened "seed stage" technology
startup opportunities with high quality, pre-screened angel, corporate and
venture capital investors ("On-Line Matchmaking"). During the term of this
Agreement, the Company shall focus its activities on On-Line Matchmaking,
obtaining related advertising, and organizing and conducting related seminars
and events.
2. SPONSORSHIP AND PROMOTIONAL ACTIVITIES.
2.1 SPONSORSHIP OF THE COMPANY.
(a) The Company shall have not more than one "founding sponsor"
in each service area related to technology start up companies (banking, law,
venture capital, accounting, investment banking, real estate brokerage,
headhunting, etc.). Sponsor shall be the sole "founding sponsor" of the Company
in the venture capital fund area. As such, Sponsor shall be the sole "founding
sponsor" of the Company in the venture capital fund area. As such, Sponsor
shall be the most prominently featured venture capital fund on the Company's
public World Wide Web site, currently located at http//xxx.xxxxxx.xxx (the
"Site"), and in marketing, advertising and promotional materials ("Marketing
Materials") distributed by or for the Company, and shall be the sole
contributor of content in content forums and expert columns on the public and
private portions of the Site relating to venture capital funds. The Company
shall prominently feature Sponsor's banners, hyperlinks, advertising materials
and content on the Site, including in both the public and private portions of
the Site, as prominently as all other "founding sponsors" of the Company and
shall identify and feature Sponsor in the Company's Marketing Materials as
prominently as all other "founding sponsors" of the Company. By way of example,
the Company shall prominently feature Sponsor's content-based venture capital
forum in the public and private portions of the Site, together with Sponsor's
designated banners and hyperlinks, and shall prominently identify Sponsor as one
of the Company's select and exclusive "founding sponsors". Sponsor shall have
the right to review and approve all content and material
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referencing Sponsor on the Site or in the Company's Marketing Materials,
provided that the Company shall retain sole editorial control over issues such
as placement, size and other elements of presentation on the Site. For purposes
of this Section 2, (i) a "founding sponsor" means Sponsor, Silicon Valley Bank,
Venture Law Group, Coopers & Xxxxxxx LLP and other entities who enter into
agreements to become "founding sponsors" of the Company on terms and conditions
satisfactory to the Company's Board of Directors; and (ii) "venture capital
fund" means an entity whose primary business is the purchase of debt or equity
securities in privately held, early stage technology companies.
(b) Nothing in Section 2.1(a) shall limit the Company's right
(i) to run banner or other forms of advertisements on the Site or in the
Company's Marketing Materials for venture capital funds other than Sponsor; or
(ii) to feature venture capital funds other than Sponsor on the Site (including
maintaining hyperlinks to such funds' World Wide Web sites) or in the Company's
Marketing Materials or to accept other venture capital funds as "sponsors" of
the Company as long as all of the requirements of Section 2.1(a) above are
followed, including, but not limited to, the requirement that Sponsor will be
the "most prominently" featured venture capital fund on the Site and in the
company's Marketing Materials, that the Sponsor will be the only venture capital
fund to host and contribute content forums and expert columns on the Site, and
that the Sponsor will be the only venture capital fund which provides content on
the Site.
(c) Sponsor shall not sponsor or promote (in a manner similar
to this Agreement) or invest in any other service (or person or entity providing
such service) which uses the Internet to match investment opportunities in
technology startup companies with investors in a manner competitive with the
Company. The Company shall be the only such service featured on Sponsor's
Website and in its promotional or marketing materials and advertisements.
Notwithstanding the above, Sponsor shall have the right (i) to place
advertisements with any such competing service and have a link on such competing
service's Website to Sponsor's Website, and (ii) to refer persons to other such
competing services in addition to and as an alternative to the Company.
2.2 PROMOTION OF THE SITE AND COMPANY SERVICES. Sponsor shall use
reasonable efforts to promote the Site and the Company's services on its Website
and in its Marketing Materials. The exact nature and extent of such promotion
shall be left in the control and discretion of Sponsor. Sponsor shall encourage
its employees and partners to make known its sponsorship of the Company to
potential clients needing "seed stage" investment to the company in which
Sponsor decides not to invest. Nothing in this Section, however, shall require
Sponsor to refer all potential clients seeking needing "seed stage" investment
to the Company.
3. NOTICE OF INVESTMENT OPPORTUNITIES AND FUNDING. The Company shall
provide Sponsor with advance (generally three (3) business days) notice of
investment opportunities in the Company's clients and of the funding of the
Company's clients prior to the posting of such opportunities and notice of
funding on the Site in accordance with procedures applicable to all "founding
sponsors", employees, directors and advisors of the Company adopted from time
to time by the Company's Board of Directors.
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4. LICENSES. The Company and Sponsor each grants to the other party a
nonexclusive, worldwide, royalty-free license, with no right to sublicense, to
use, reproduce and distribute, in print, on-line and such other media as the
parties may agree from time to time, such party's name, logo and other
trademarks and servicemarks used with respect to such party's products and
services for the sole purpose of fulfilling the parties' respective obligations
under this Agreement. Any such use shall be in accordance with the guidelines
established by the licensing party, as in effect from time to time.
5. SPONSORSHIP FEES. There shall be no separate sponsorship fee payable
by Sponsor under this Agreement.
6. TERM. This Agreement shall have a term of three years beginning with
the date of this Agreement and shall be automatically renewed for additional
one year periods unless either party notifies the other of its desire not to
renew this Agreement at least ninety days prior to its expiration. Following
termination of this Agreement by the Company (other than pursuant to the last
sentence of this Section 6) and prior to entering into any agreement for a
"founding sponsorship" with a venture capital fund other than Sponsor, the
Company shall first provide sponsor with the opportunity, for thirty (30) days,
to renew this Agreement on terms and conditions no less favorable, in the
aggregate, than such proposed agreement in order to permit sponsor to maintain
its status as the "venture capital fund founding sponsor". Sponsor's right of
first refusal described in the preceding sentence shall terminate at such time
as the Company, after complying with the preceding sentence, enters into an
agreement for a "founding sponsorship" with a venture capital fund other than
Sponsor. Notwithstanding any of the foregoing, either party may terminate this
Agreement at any time thirty days after written notice to the other party of
such other party's breach of any of its obligations under this Agreement in any
material respect, which breach is not remedied within such thirty day period.
7. GENERAL PROVISIONS.
7.1 ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties with respect to Sponsor's sponsorship of the Company.
7.2 AMENDMENT AND WAIVER. No amendment to, or waiver of, any
provision of this Agreement shall be effective unless in writing and signed by
both parties.
7.3 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California without
regard to the conflicts of laws principles thereof.
7.4 SUCCESSORS AND ASSIGNS. Neither party shall assign its rights or
obligations under this Agreement without the prior written consent of the other
party, except in connection with the merger, sale of assets or other form of
transfer of the business of a party to a third party or in connection with the
transfer of Sponsor's equity investments to an affiliated party. All terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective permitted transferees, successors and
assigns.
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7.5 PREVAILING PARTY. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
7.6 ARBITRATION. Any dispute between the parties arising out of or
in connection with this Agreement shall be referred for settlement to
arbitration in Santa Xxxxx County, California in accordance with the Commercial
Rules of the American Arbitration Association. The award shall be final and
binding upon the parties and judgment of such award may be entered in any court
or tribunal having jurisdiction.
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The parties have executed this as of the date first
above written.
COMPANY: SPONSOR:
xxxxxx.xxx ADVANCED TECHNOLOGY VENTURES
IV, L.P.
By: /s/ XXX XXXXXXXX By:
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Xxx Xxxxxxxx, CEO Name: ATV ASSOCIATES IV, L.P.
Title: General Partner
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The parties have executed this as of the date first
above written.
COMPANY: SPONSOR:
xxxxxx.xxx ADVANCED TECHNOLOGY VENTURES
IV, L.P.
By: /s/ XXX XXXXXXXX By: ATV ASSOCIATES IV, L.P.,
--------------------- General Partner
Xxx Xxxxxxxx, CEO
By: /S/ XXX XXXXXXX
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SIGNATURE PAGE TO
ADVANCED TECHNOLOGY VENTURES IV, L.P.
