10.4 Distributor Agreement dated June 11, 1999, by and between Stock
Xxxxx.xxx, LLC and Media General Financial Services, Inc.
DISTRIBTUOR AGREEMENT
11 June 1999
Agreement between MEDIA GENERAL FINANCIAL SERVICES, INC., a Virginia
Corporation with its principal place of business at 000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("Media"), and Stock Xxxxx.xxx, LLC, a New York Limited
Liability Company, with its principal place of business at 000 Xxxxxx Xxxx,
Xxxxx X0, Xxx, Xxx Xxxx 00000 ("StockSiren").
1. Subject to the terms and conditions of this Agreement, Media hereby
grants to StockSiren a non-exclusive license to install, market, and distribute
the QuickSource dataset of selected elements of Media's common stock database
through StockSiren Web site described in EXHIBIT I attached hereto and
incorporated herein by reference. The QuickSource data elements licensed,
hereinafter referred to as "Media data", are shown in EXHIBIT II, attached
hereto and made a part hereof. The licensed Media data shown in EXHIBIT II of
this Agreement may be utilized in part or in whole by the StockSiren Web site
under the terms and conditions shown in EXHIBIT III. StockSiren may also build a
screening module for its WEB site under the terms and conditions shown in
EXHIBIT IV. In addition, StockSiren may use the Media data shown in EXHIBIT II
to calculate only the fields shown in EXHIBIT V. In addition to the license
granted hereunder for use of the Media data through StockSiren Web site,
StockSiren may develop and market such other products utilizing the Media data
as the parties mutually agree to add to this Agreement by additional specific
Amendments, subject to the provisions of Paragraph 14 hereof.
Media reserves the right to modify its databases from time to time in
its sole discretion. Media shall give StockSiren sixty (60) days prior written
notice if any such change will affect the Media data.
The Media data will be made available to StockSiren via FTP and in such
format as shall be mutually agreed upon. Frequency of delivery of the Media data
to StockSiren will be daily according to a production schedule as shall be
mutually agreed upon.
Media shall have no liability for delays or non-performance occasioned
by causes beyond its control, including but not limited to acts of God, fires,
inability to obtain materials, strikes or other labor actions, breakdown of
equipment, delays or shutdowns of carriers or suppliers, and government acts or
regulations.
2. (a) Media represents and warrants to StockSiren that the Media data
as delivered to StockSiren does not and will not infringe upon or violate any
patent, copyright, trade secret, or any other proprietary rights of any third
party, or otherwise subject StockSiren to liability. In the event of any claim,
suit or action by any third party against StockSiren arising out of Media's
alleged breach of the foregoing representation and warranty, StockSiren shall
promptly notify Media, and Media shall defend such claim, suit or action in
StockSiren' name but at Media's expense under Media's control. Media shall
indemnify and hold harmless StockSiren against any loss, cost or damage, expense
or liability arising out of such claim, suit or action (including litigation
costs and reasonable attorneys fees) whether or not such claim, suit or action
is successful. Should any material and/or information constituting Media data
become, or in Media's opinion be likely to become, the subject of a claim for
infringement, Media may authorize the continued use of, replacement, removal, or
modification of such material and/or information to render it non-infringing.
(b) StockSiren represents and warrants to Media that neither the
reformatting nor the means of presentation on or through the StockSiren service
will cause the Media data to infringe upon or violate any patent, copyright,
trade secret or any other proprietary rights of any third party, or otherwise
subject Media to liability. In the event of any claim, suit or action by any
third party against Media arising out of StockSiren's alleged breach of the
foregoing representation and warranty, Media shall promptly notify StockSiren,
and StockSiren shall defend such claim, suit or action in Media's name but at
StockSiren's expense under StockSiren's control. StockSiren shall indemnify and
hold harmless Media against any loss, cost or damage, expense or liability
arising out of such claim, suit or action (including litigation costs and
reasonable attorneys fees) whether or not such claim, suit or action is
successful.
(c) Media bases its data input on sources believed by it to be
reliable and will endeavor to ensure that the data contained in the licensed
Media data are complete, accurate and timely. However, Media does not represent,
warrant, or guarantee such completeness, accuracy or timeliness, and it shall
have no
liability of any kind whatsoever to StockSiren, to any of StockSiren's
customers, or to any other party, on account of any incompleteness of,
inaccuracies in or untimeliness of the Media data provided hereunder, or for any
delay in reporting such data. Media expressly disclaims all warranties of
fitness of the Media data or computations and analyses thereof for a particular
purpose or use. With regard to the subject matter of this Paragraph 2(c), in no
event shall Media have any liability of any kind for any damages even if
notified of the possibility of such damages. Except as specifically set forth in
this Agreement, neither party makes any warranties and each party hereto
specifically disclaims any implied warranties of merchantability or fitness for
a particular purpose.
(d) StockSiren shall ensure that the Media data displayed in Web pages,
individual reports and in a screening module shall be clearly identified as
provided by Media with the Media/Quick Source logo described in EXHIBIT III and
following attribution: Source: Media General Financial Services, Inc. In
addition, in materials that describe the sources of data in the StockSiren
service, StockSiren must provide an appropriate disclaimer approved by Media and
containing a paraphrase of the language contained in subparagraph 2(c) above. In
addition, from the above attribution, StockSiren shall include a hyperlink to
the Media Web site at xxx.xxxx.xxx.
3. The purpose of providing the Media data to StockSiren is to
disseminate the Media data in the markets served by StockSiren. Any other use of
the Media data by StockSiren not expressly authorized herein must be approved in
advance in writing by Media in its sole discretion.
4. (a) StockSiren will perform all necessary accounting, billing and
collection for use of the Media data. For the license hereby granted to
StockSiren by Media to offer the Media data through the product set forth in
EXHIBIT I, StockSiren shall pay to Media a monthly royalty fee calculated as
follows:
The greater of:
30% of the net advertising revenue realized by any page that
contains MGFS data (net advertising revenue will be the gross receipts of any
advertisements contained on any page of Media data, less agency fees or
commissions).
or
40% for any non-advertising based components of the Media data
(e.g., subscription or pay-per-view data).
or
$1,000 per month
(b) StockSiren shall pay such royalties to Media on or before
the thirtieth (30th) day after the month in which the royalties shall accrue,
and if any payment due hereunder is not received by Media within that period,
Media shall have the option to discontinue providing the Media data and of
terminating this Agreement should such payment not be received within 30 days
after written notice to StockSiren. Each royalty payment by StockSiren for use
of the Media data shall be accompanied by a royalty statement showing detailed
computation (including agency and advertising sales commission) of monthly
royalty fees due Media. StockSiren also agrees to provide Media with monthly
figures on the number of hits or "page views" of the Media data on its service.
(c) At Media's option and no more than once per year, an
independent auditor selected by Media may inspect, audit and copy, during
regular business hours and with advance notice of at least five (5) business
days, those records of StockSiren that specifically relate to usage of the Media
data hereunder, for the purpose of verifying the accuracy of the royalty
payments made to Media and the accuracy of StockSiren' reports specified in
Paragraph 4(b). Such right of inspection shall exist during the terms of this
Agreement and for twelve (12) months thereafter. Media shall pay the fees of any
auditor selected pursuant to this subparagraph, unless the results of the audit
show a deficiency of more than five percent (5%) in royalty payments made to
Media hereunder, in which case, in addition to the deficiency, which shall be
due immediately in any event, StockSiren shall pay the costs of such audit.
5. StockSiren agrees that its user agreements do and will contain
provisions prohibiting its customers accessing the Media data for resale and
redistribution of the data obtained from the StockSiren's service (which will
include the Media data) in any form. StockSiren represents and warrants to Media
that it assumes all responsibility for the accuracy, integrity and support of
its software which utilizes the Media data. Specific references by StockSiren
that the Media data has any predictive value for the purpose of enhancing
investment returns are strictly prohibited.
6. StockSiren represents and warrants that the Media data supplied
hereunder shall be used and released from its data system only in accordance
with the terms of this Agreement and in furtherance thereof. The license granted
under Paragraph 1 hereof does not permit StockSiren to use, sell or distribute
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the Media data for any use or purpose other than those specifically set forth in
the EXHIBITS attached hereto and made a part hereof.
7. Any use of the names or marks of either party in connection with
promotional activities, advertising, or other use outside the ordinary course of
business in performing this Agreement shall be subject to the prior written
approval of the other party. Notwithstanding anything contained herein to the
contrary, both parties shall have the right to disclose that it has entered into
this Agreement.
8. StockSiren acknowledges that the Media data in the form delivered
represent confidential proprietary business information and that its utilization
of the Media data is strictly limited in accordance with this Agreement. Media
acknowledges that any StockSiren software used for the access, delivery and
manipulation of Media data represents confidential proprietary business
information and utilization of such software by Media or any of its employees or
agents is strictly limited in accordance with the terms of this Agreement.
9. StockSiren acknowledges that the Media data consist of factual
information gathered, selected and arranged by Media by special methods and at
considerable expense; that the Media data, and all titles, formats and other
descriptive headings associated herewith, are and at all times shall be, the
sole property of Media, and that neither StockSiren nor any of its agents in any
capacity shall sell or otherwise dispose of or distribute the Media data, or any
portion thereof, to others at any time, either during or after the expiration of
this Agreement, except as permitted by the terms hereof. Upon notice thereof,
StockSiren will act promptly to prevent any breach or continuation of a breach
by a subscriber or any of its agents of the provisions of this Agreement, or its
subscriber agreements, such action to include termination of services, if
required by Media.
10. StockSiren expressly recognizes and acknowledges that its covenants
set forth in Paragraphs 6, 7, 8, and 9 are reasonable requirements of Media in
the protection of substantial business interests. StockSiren further
acknowledges that the remedy at law for breach of any of its undertaking in said
paragraphs would be inadequate and that, in addition to all other remedies
provided by law, Media shall be entitled to injunctive relief restraining any
breach or threatened breach. StockSiren's liability for breach of this Agreement
and for sums due to Media hereunder shall survive any termination hereof. Except
for amounts payable to third parties pursuant to the indemnification provision
of Section 2 hereof, and to the extent permitted by applicable law, neither
Media nor StockSiren shall have any liability for any special, indirect,
incidental or consequential damages even if advised of the possibility thereof.
The foregoing limitation of liability shall apply regardless of the cause of
action under which such damages are sought, including, without limitation,
breach of contract, negligence, or other tort.
11. (a) Subject to the terms and conditions described below, the term
of this Agreement shall be for a period of two (2) years from the effective date
of this Agreement, specified in Paragraph 18. At the end of the initial term,
this Agreement will be automatically renewed from year to year unless either
party gives to the other written notice of termination at least ninety (90) days
prior to the expiration of the initial term, or any renewal terms, as the case
may be. Notwithstanding the termination or expiration of this Agreement, the
right and obligations under Paragraphs 2, 4, 5, 6, 7, 8, 9, 10 and of this
Paragraph 11 shall survive and continue and bind the parties and their legal
representatives and permitted assigns.
(b) Promptly following termination or expiration of this
Agreement for any reason, StockSiren shall use all reasonable efforts to purge
all Media data from its systems and return any tapes or other media on which the
Media data or any other Media information may have been provided, together with
all copies thereof, whether in printed or machine-readable form, to Media.
StockSiren shall certify to Media in writing that the requirements of this
paragraph have been met within ten business (10) days of termination.
(c) Either Media or StockSiren may terminate this Agreement
and the license conferred hereunder as follows:
(i) Media may terminate as specified in Paragraph
4(b).
(ii) Either party may terminate if the other breaches
any other term or covenant of this Agreement, and such breach continues
unremedied for sixty (60) days after written notice to the party in breach by
the other party. Either party may seek liability for breach of this Agreement by
the other party.
12. All marketing and promotional references to the Media data to be
used by StockSiren in its efforts to market StockSiren's service involving use
of the Media data shall be subject to the prior written approval of Media. In
the event that Media advertises its connection with StockSiren' service, or in
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the event Media or any Media agent promotes the availability of the Media data
on StockSiren's services, StockSiren shall have the right of prior approval of
all materials used in such efforts. If the approving party does not respond
within five (5) business days, the other party may consider the materials
approved.
13. All notices, payments and other communications permitted or
required by this Agreement shall be in writing addressed as follows:
(a) MEDIA GENERAL FINANCIAL SERVICES, INC.
000 XXXX XXXXXXXXXXXXXX
XXXXXXXX, XXXXXXXX 00000
ATTN: Xxxxxx X. Xxxxxxxxxx, President & CEO
(b) STOCK XXXXX.xxx, LLC
000 XXXXXX XXXX, XXX X0
XXX, XXX XXXX 00000
ATTN: Xxxxxxx Xxxxxxxxx, President
Either party may change its address for such matters by notice given in
the manner prescribed above. If sent by certified or registered mail, notices
shall be effective three business days after posting; otherwise, notices shall
be effective upon receipt by the other party.
14. This Agreement represents the entire understanding between
StockSiren and Media as to the subject matter hereof. Any amendments or
additions hereto shall be only in writing executed by the parties.
15. This Agreement is made in, and shall be governed by and construed
in accordance with the laws of, the State of Virginia.
16. No rights or duties hereunder may be transferred or assigned by
either party in any manner without the written approval of the other party in
its sole discretion, other than to a subsidiary, parent or other affiliate of
the transferring or assigning party. Media may not transfer or assign this
Agreement without the consent of StockSiren, which shall not be unreasonably
withheld.
17. No waiver of any breach of any term or condition herein shall be
deemed to be a waiver of any subsequent breach of any term or condition. Failure
or delay by either party in exercising any right or authority hereunder shall
not be construed as a waiver of such right or authority.
18. This Agreement shall become effective June 15, 1999. Royalties due
for the XxxxxXxxxx.xxx web site are covered under the Amendment executed on June
10, 1999 between Daily Stocks and Media, and notwithstanding this Agreement,
Daily Stocks is obligated for full royalties due Media through June 30, 1999.
The XxxxxXxxxx.xxx web site has been acquired by StockSiren and under this
Agreement, StockSiren's initial monthly payment to Media as determined under
Section 4 of this Agreement shall become due and payable on July 30, 1999.
MEDIA GENERAL FINANCIAL SERVICES, INC. STOCK XXXXX.xxx, LLC
000 XXXX XXXXX XXXXXX 000 XXXXXX XXXX, XXX X0
XXXXXXXX, XXXXXXXX 00000 XXX, XXX XXXX 00000
By: _______________________________ By: ________________________
Title: _______________________________ Title: ________________________
Date: _______________________________ Date: _________________________
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EXHIBIT I
Xxxxxxxxxx.xxx is a financial web site that provides easy-to-read, easy-to-use
data sheets for stock companies. There are many future plans for this web site
including but not limited to: providing live stock quotes, editorial commentary
and articles, user portfolios, charts and many other tools for stock market
related analysis.
The URL is : xxxx://xxx.xxxxxxxxxx.xxx
-------------------------
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EXHIBIT II
On all common issues in the "then current" Media database, the QuickSource
dataset is composed of the below data items.
Media does not guarantee that all data are available for all companies over all
historical periods requested and shall have no responsibility to STOCKSIREN
under this Agreement to provide any missing and/or incomplete data on any
companies.
The QuickSource data file is a standard product offering of Media that will be
delivered in below format.
Maximum Item Description
Item # # Bytes #Occurrences Identifying Information:
------------------- ----------------- ------------------ ------------------------------------------------
General Company Information:
1 8 - MG Number Key
2 18 - Record Identifier (ex. 'Company')
3 30 - Company Name
4 00 - Xxxxxx Xxxxxxx
0 00 - Xxxx + State + Zip
6 14 - Telephone Number
7 14 - Fax Number
8 5 - Ticker Symbol
9 4 - Exchange
10 3 - Fiscal Year Month
11 4 - Primary SIC
12 36 - MG Industry Group Number + Name
13 50 - Chief Executive Officer
14 320 - Principal Business Description
Current Price Data:
15 8 - Report Date
16 8 - Latest Close Price
17 8 - 52 Week High Price
18 8 - 52 Week Low Price
19 8 - 5 Year High Price
20 8 - 5 Year Low Price
21 12 - Liquidity Ratio
Fundamental Report History:
22-28 9 7 Report Header Item 22 is '12 Mos(#)' Items 23-28
are 6 Years, with the most recent year in Item 23;
All Fundamental Items below correspond to the
Report Headers
29-35 12 7 Revenues ($Mil)
36-42 12 7 Depreciation ($Mil)
43-49 12 7 EBIT ($Mil)
50-56 12 7 Net Income ($Mil)
57-63 12 7 EPS ($)
64-70 12 7 Dividends ($)
71-77 12 7 Current Assets ($Mil)
78-84 12 7 Current Liabilities ($Mil)
85-91 12 7 Long Term Debt ($Mil)
92-98 12 7 Shares Outstanding (000)
99-105 12 7 Common Equity ($Mil)
105-112 9 7 Profit Margin (%)
113-119 9 7 Return on Equity (%)
120-126 9 7 Return on Assets (%)
127-133 9 7 P/E (ratio)
134-140 9 7 Price/Book (%)
141-147 9 7 Debt/Equity (ratio)
148-154 9 7 Interest Coverage (ratio)
155-161 9 7 Book Value ($)
162-168 9 7 Price/Sales (%)
169-175 6 7 Dividend Payout (%)
176 12 - Data filler
177 12 - Data Filler
178 12 - Data Filler
179 12 - Data Filler
Company as % Industry:
180 9 - Price to Industry
181 9 - Sales To Industry
182 9 - Earnings to Industry
183 9 - Earnings per Share to Industry
184 9 - P/E Ratio to Industry
185 9 - Price/Book to Industry
186 9 - XXX to Industry
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187 9 - ROA to Industry
188 9 - Debt/Equity to Industry
189 9 - Profit Margin to Industry
Quarterly Performance:
190-194 7 5 Quarterly Report Headers
Items 190-194 are 5
Quarter Dates with the
most recent Quarter in
# 190 All Quarterly
Items listed correspond
to the Header
195-199 12 5 Sales ($Mil)
200-204 12 5 Net Income ($Mil)
205-209 12 5 EPS ($)
210-214 12 5 Dividends ($)
215-219 12 5 Shares Outstanding (000)
Current Statistics:
220 12 - Market Value
221 6 - Number of Institutions Holding Shares
222 9(%) - % Shares Held by Institutions
223 9(%) - Latest 12 Mos. EPS Change
24 10(%) - 5 Year Revenue Growth Rate
225 10(%) - 5 Year EPS Growth Rate
226 10(%) - 5 Year Dividend Growth Rate
227 9 - Current Dividend Rate
228 9(%) - Current Dividend Yield
229 5 - 36 Month Beta
230 8 - Total Return Last 12 Months
231 8 - Total Return Last 3 Years
232 8 - Total Return Last 5 Years
Price History Newest to Oldest:
233-292 8 60 Monthly High Price
293-352 8 60 Monthly Low Price
353-412 8 60 Monthly Close Price
413-472 12 60 Monthly Volume
Latest Full Context Quarter and Related:
473 18 - Date ex. September 30 1996
474 12 - Cash & Equivalents
475 12 - Net Fixed Assets
476 12 - Intangibles
477 12 - Other Assets
478 12 - Total Assets
479 12 - Short Term Debt
480 12 - Other Liabilities
481 12 - Total Equity
482 12 - Total Liabilities & Total Equity
483 8 - Percent Price Change 1 Month
484 8 - Percent Change EPS 1 Quarter
485-489 12 5 EBIT from 5 latest Full Context Quarters Newest to
Oldest
490-494 9 5 Profit Margin from 5 most recent Quarters
495-499 8 5 High Price from 5 most recent Quarters
500-504 8 5 Low Price from 5 most recent Quarters
505-509 6 5 Quarter Month Name & Year from 5 most recent
Quarters
510 12 - Latest 12 Mo. EPS & Qtr. Ind.
511 129 - Comment that Preliminary data has being reported
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EXHIBIT III
TERMS FOR USE FOR QUICKSOURCE
o StockSiren has permission to develop and present for viewing on their
Internet site, as described in EXHIBIT I, a report entitled
"StockSiren-MGFS QuickSource." StockSiren has permission to break the
QuickSource report into as many as seven sections, as follows:
1. General Company Information
2. 60-Month Price Chart
3. Price Data
4. Fundamental History
5. Company to Industry Comparison
6. Quarterly Performance
7. Current Statistics
The seven sections, as indicated above, must remain whole and as
presented in the attached report; they may not be further subdivided.
Xxxxxx'x EPS Estimates previously included in the Quicksource report is
NOT part of this agreement. All display and usage of Xxxxxx'x EPS estimate data
must be removed from the STOCKSIREN site.
The Media/QuickSource logo will be provided by Media, to be included in
any page of the StockSiren Web site that includes Media data.
o STOCKSIREN can archive and display historical versions of report.
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EXHIBIT IV
LISTING OF DATA FIELDS THAT STOCKSIREN USE TO CREATE SCREENING LISTS.
1. 52 Week High Price
2. 52 Week Low Price
3. Daily High price
4. Daily Low Price
5. Highest EPS Growth latest quarter
6. EPS Growth of 12mos, 5 Year and 1 quarter v. certain criteria
7. Highest 5 Yr Growth Rate
8. Highest XXX
STOCKSIREN may display following fields from result of screenings:
1. Trailing Twelve Months P/E
2. Price/Sales Ratio
3. Stock Price
4. Yield
5. Price/Book Ratio
6. Beta
7. % Change in EPS
8. 5 Year EPS Growth Rate
9. Return on Equity (XXX)
10. Dividend Payout Ratio
11. Debt/Equity Ratio
12. Accelerating % Change in EPS (not an input field)
13. Market Capitalization
14. Number of Shares Outstanding
15. Membership Indicator (S&P 000, Xxx Xxxxx Xxxxxxxxxx Xxxxxxx, MG
Industry Group)
16. Exchange Indicator
17. 5 Year Average Annual Rate of Return
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EXHIBIT V
Listing of calculations StockSiren may perform using the items listed in EXHIBIT
II, for display on the StockSiren site described in EXHIBIT I.
1. Percentage Change in Annual EPS vs. Prior Year for the last 5 Years.
(e.g. 1996 vs. 1995, 1995 vs. 1994, etc.)
2. Percentage Change in Annual Revenue per Share vs. Prior Year for the last 5
Years.
3. Percentage Change in Quarterly EPS vs. Prior Year for the last 5 Quarters.
4. Percentage Change in Quarterly Revenue per Share vs. Prior Year for the
last 5 Quarters.
5. Average Annual Rate of Return of Stock for the Last 5 Years.
6. Annual P/E Ranges, Price to Book, Price to Sales, Price to Cash Flow for
the last 5 Years.
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