Sponsorship Agreement - Garage.com and Heidrick & Struggles
garage.com
SPONSORSHIP AGREEMENT
This Sponsorship Agreement (this "Agreement") is entered into as of July 9,
1998 between garage.com, a California corporation (the "Company"), and Heidrick
& Struggles ("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 an executive recruiting firm which provides
executive recruiting services to, among other clients, emerging growth and
technology companies. Sponsor desires to have its name and services prominently
featured on the Company's Website for viewing by entrepreneurs and investors, 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,
executive recruiting, etc.). Sponsor shall be the sole "founding sponsor" of the
Company in the executive recruiting area. As such, Sponsor shall be the most
prominently featured executive recruiting firm on the Company's public World
Wide Web site, currently located at http//www.garage.com (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 executive recruiting issues. 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 executive recruiting 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
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approve all content and material 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 1, (i) a "founding
sponsor" means Sponsor, Silicon Valley Bank, Coopers & Lybrand, Venture Law
Group, Advanced Technology Ventures, Deutsche Morgan Grenfell Technology Group
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) "executive recruiting firm" means an entity whose primary
business is the provision of executive recruiting services (i.e., recruiting for
CEO or other senior management positions) and shall not include firms providing
services for recruiting engineers and lower level managers.
(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 executive recruiting firms other than Sponsor;
(ii) to feature executive recruiting firms other than Sponsor on the Site
(including maintaining hyperlinks to such firms' World Wide Web sites) or in
the Company's Marketing Materials or to accept other executive recruiting firms
as "sponsors" of the Company as long as all of the requirements of "most
prominent" featuring of Sponsor in Section 2.1(a) above are followed, including,
but not limited to, the requirement that Sponsor will be the "most prominently"
featured executive recruiting firm on the Site and in the Company's Marketing
Materials, that the Sponsor will be the only executive recruiting firm to host
and contribute content forums and expert columns on the Site, and that the
Sponsor will be the only executive recruiting firm which provides content on the
Site; or (iii) to have other executive recruiting firms represent the Company in
recruiting matters.
(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 seeks 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 clients and potential clients needing "seed stage" investment.
Sponsor shall also assist the Company in identifying potential investors (who
may be individuals, partnerships or corporations) who may be interested in the
Company's matchmaking services.
2.3 SPONSOR'S HOSTING OF SENIOR MANAGEMENT EMPLOYMENT SERVICE.
Sponsor shall use reasonable efforts to work with the Company to establish and
host an employment service on the public portion of the Company's Website under
Sponsor's name
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whereby persons interested in CEO or other senior management positions with
companies posted by the Company in "The Garage" portion of the Company's
Website (and possibly other companies as mutually agreed by Sponsor and the
Company) can submit their resumes through the Company's Website to Sponsor to
be held in a database accessible in a mutually defined manner by such companies
looking for management. Sponsor shall not charge the Company or the Company's
posted companies for such service, it being recognized that provision of such
service is part of the consideration for Sponsor's Founding Sponsorship. The
exact nature of such service will be mutually defined by Sponsor and the
Company and will be structured to comply with all applicable laws. It is
expected that Sponsor will assign qualified personnel to screen such resumes
for suitability prior to placement in such database but will not do the kind of
due diligence or candidate background checks it would normally perform for
retained searches.
3. NOTICE OF INVESTMENT OPPORTUNITIES. The Company shall provide Sponsor
with advance (generally three business days) notice of investment opportunities
in the Company's clients prior to the posting of such opportunities 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.
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 FEE. As partial consideration for Sponsor's Founding
Sponsorship, Sponsor shall pay the Company $12,500 upon the date of this
Agreement and $12,500 at the end of each three month period thereafter during
the term of this Agreement (total sponsorship fee payments of $150,000).
6. TERM. Except as otherwise provided in this Section 6, 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. Sponsor shall also have the right
voluntarily to terminate this Agreement upon written notice to the Company at
any time after one year from the date of this Agreement. 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 an executive recruiting firm 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 "executive recruiting firm 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 an executive recruiting firm
other than Sponsor.
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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. 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.
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 Clara 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.
The parties have executed this Sponsorship Agreement as of the date first
above written.
COMPANY: SPONSOR:
garage.com HEIDRICK & STRUGGLES
By: /s/ CRAIG JOHNSON By: /s/ WESLEY RICHARDS
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Craig Johnson, Director Wes Richards, Managing Partner
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