Agreement - Championship Auto Racing Teams Inc. and CART Digital Media Enterprises LLC
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933. A COMPLETE
COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of January 1, 1999 (the
"Effective Date") by and between CHAMPIONSHIP AUTO RACING TEAMS, INC., a
corporation organized under the laws of Delaware, with principal offices at 755
West Big Beaver Road, Suite 800, Troy, Michigan 48084 (hereinafter referred to
as "CART") and CART DIGITAL MEDIA ENTERPRISES, LLC, a limited liability company
organized under the laws of Delaware, with principal offices at 525 Brannan
Street, San Francisco, CA. 94107 (hereinafter referred to as "CDME").
RECITALS
WHEREAS, CART, through its subsidiary CART, Inc. is the sanctioning body
of prestigious auto racing events and series currently known as the FedEx
Championship Series, the PPG Dayton Indy Lights Championship and the Kool Toyota
Atlantic Championship (hereinafter all races, practice and qualifying sessions
and all related activities and meetings thereto being collectively referred to
as the "Events");
WHEREAS, CDME was formed by Quokka Sports, Inc. and Forsythe Racing,
Inc. to provide digital media coverage for the Events;
WHEREAS, CART wishes to appoint CDME and CDME agrees to be appointed to
develop, construct and operate the exclusive official Site (as hereinafter
defined) in accordance with the terms and conditions of this Agreement;
WHEREAS, CART wishes to grant to CDME Digital Media rights and various
other rights pertaining to the Events in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement:
"CONTENT" means the articles, stories, statistics, data, photographs,
drawings, visualizations, video, audio, and other digital assets (including any
assets in an analog format) gathered or supplied by CART in connection with the
Events, including content currently in existence on CART.com.
"DERIVATIVE PRODUCTS" means goods or services derived from the Site (as
hereafter defined) or any portion thereof which are approved by CART, in its
reasonable discretion. In order for a product to be approved as a "derivative
product", at the time of development, CART must not offer or have licensed a
directly competing product or service, and CDME, through the use of digital
assets, must be able to provide significant added value to such product (e.g.,
screen savers and posters utilizing digital assets and books about the digital
coverage of CART). For purposes of definition, significant added value means any
product which uses Original Content as its primary source. Derivative products
do not include home videos or other products which merely make use of existing
CART assets, such as video and photographs.
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"DIGITAL MEDIA" means any communications medium as to which all of the
following are true:
(i) The principal means by which information is transmitted from
the provider to the end user is the delivery of digitally-encoded data,
regardless of the nature of the data transmitted (e.g., text, computer code,
still images, audio, motion video) or the transmission modality or modalities
employed (e.g., copper wire, fiber optic or coaxial cable, satellite or
terrestrial wireless transmission systems);
(ii) The principal means by which information transmitted by the
provider is displayed to the end user is transitory images, sounds or other
experiences the persistence of which requires a power source at the display
device (e.g., images and sounds displayed through intelligent or dumb terminals
(including monitors and/or television sets) but not printed pages created by the
provider or the end user); and
(iii) The medium enables the end user to manipulate the specific
information being displayed to that end user at any particular moment to the
extent (e.g., frequency, immediacy, ease, cost) at least as great as the extent
to which present-day (as of the Effective Date) end users are able to manipulate
the information displayed to them via World Wide Web pages or push media
transmitted over the Internet.
In applying the foregoing definition, if a provider disseminates
information by means of any two or more media-that are intended primarily to be
displayed to the end user concurrently and in an integrated way through a single
display device, the two or more media will be considered in the aggregate as a
single medium, which will be considered Digital Media only if the combined media
in aggregate satisfy the applicable tests.
"EVENT DATA" means real-time and historical Event-related data, which
may be provided by CART for use on the Site, subject to its agreements with
third parties, or which is provided by an entity other than CART to CDME,
subject to agreements between CDME and such entity. It is anticipated that such
Event Data shall include results (e.g., times of competitors and standings),
rulings, timing data, instrument and positional data, team radio communications,
text, e-mail, audio, still photographs, video and other relevant material
collected from teams, participants, suppliers, licensees, statisticians or
officials participating in the Event or available from any other source, and any
text or written material from any official or authorized print publication or
statistical supplier. Event Data may also include all participant information,
as well as historical data containing race results and timing data and other
statistical, anecdotal and archival materials, such as timing data, results,
photos, video, e-mail, documents, etc., relating to previous Events. Exhibit A
contains those items listed above which will be made available to CDME at this
time and for the duration of this Agreement and shall be maintained in
accordance with CART's obligations hereunder.
"INTERFACE" means the graphical user interface ("GUI") for the Site,
including without limitation the "look and feel" of the GUI and the software
programs implementing the GUI (e.g., HTML code, Java scripting and programs
created with other Web authoring tools or tools related to the use of Digital
Media).
"INTERNET" means the global network of computer networks commonly known
as and currently understood and including the so-called "world wide web" of
computer link-ups and communications systems through which end-users can access
and communicate with other
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computer users, file servers and domains and including any upgrades,
enhancements and successors thereto.
"MARKS" means all trademarks, trade names, service marks, logos, designs
and trade dress of the Events which are owned or controlled by CART whether
registered or unregistered, set forth in the attached Exhibit B which is
incorporated herein by reference.
"ORIGINAL CONTENT" means any material or work created by CDME or its
agent(s) for CDME, whether in analog or digital format, in which copyright,
design, (registered or unregistered) trade mark, service mark, or other similar
rights subsist or will subsist and which is incorporated into or synchronized
with or otherwise forms part of or is used in or in connection with the Site and
which is not the Interface or the Software (e.g., narrative text, graphs,
visualizations, still photos, video, etc.).
"SITE" means coverage of the Events hereunder by CDME consisting of
analog and digital assets, Event Data, Original Content, and Content, as well as
historical and background data and information, which are distributed via a host
site on the Internet and/or via Digital Media. The Site shall include language
substantially similar to that contained in Exhibit C.
"SOFTWARE" means the executable software programs relating to the Site
and any part thereof other than the Interface.
"TERM" means the term of this Agreement as defined in Section 4.
2. GRANT OF RIGHTS.
2.1 CART hereby grants to CDME during the Term the exclusive worldwide
Digital Media rights to the Events as well as any additional properties, events
or series owned and sanctioned by CART during the Term. Any rights for any
additional properties, events, or series owned and sanctioned by CART during the
Term shall be subject to any pre-existing agreements such properties, events, or
series may have. All other rights granted by this Agreement shall be subject to
CART's pre-existing agreements with third parties, which agreements are
referenced herein. Notwithstanding the foregoing, this Agreement [*] In the
event that CART makes available to CDME the rights to any additional properties,
events or series, CDME shall cover such events in accordance with all the terms
and obligations hereof. CART further appoints and CDME accepts the appointment
to develop, construct and operate during the Term the exclusive officially
authorized Site for Digital Media coverage of the Events on the terms and
conditions of this Agreement. Notwithstanding the foregoing, the exclusive
rights to the PPG Dayton Indy Lights Championship and the Kool Toyota Atlantic
Championship shall commence on the date of expiration (without extension) of
their current agreements for coverage on the Internet, which date shall be no
later than December 31, 1999. In connection with such appointment and grant,
CART hereby grants to CDME the exclusive worldwide rights and license to:
2.1.1 Use, reproduce and exploit during the Term the Marks on the
Internet, via Digital Media and in connection with the Site, as well as the
rights to use, reproduce and exploit the
[*] Confidential Treatment Requested.
3.
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Marks in any medium in connection with the promotion, marketing, advertisement
or publicity of the Site. Notwithstanding the foregoing, CDME shall not register
the name "CART Digital Media Enterprises" for trademark protection or other
similar registration. CDME shall enter into a royalty-free license agreement
with CART for the use of the mark "CART" in connection with its company name,
"CART Digital Media Enterprises". All use of the aforementioned name, and any
other name or any mark or logo utilizing the Marks shall inure to the exclusive
benefit of CART. Nothing herein shall prevent CDME from changing its company
name.
2.1.2 Subject to the restrictions in Section 2.1.9, use,
reproduce and exploit during the term the Marks on any Derivative Products, as
well as the rights to use, reproduce and exploit the marks in any medium in
connection with the promotion, marketing, advertisement or publicity of any
Derivative Product. Notwithstanding the foregoing, in connection with the sale
of any Derivative Product, it is understood that CDME shall bear any additional
third party costs of repurposing third party photographs, videotape or other
material.
2.1.3 Use for the Site Event Data and Content, whether owned,
licensed or sanctioned by CART, on a real time or other basis on the Internet,
and/or via Digital Media. All use of Event Data and Content as it relates to
site structure, architecture, navigation and branding issues shall be approved
in advance by CART, or if such approval is not practicable, shall be subject to
CART's editorial policies existing at the time of use. Content may also be used
in connection with the promotion, marketing, advertisement or publicity of the
Site or any Derivative Product.
2.1.4 CART and CDME shall work together to establish editorial
standards for the Site which are consistent with the highest standards of
journalistic integrity, and CART shall have full editorial control over the
Site.
2.1.5 Subject to Section 9 below, sell commercial partnerships
and advertising opportunities in connection with the Site.
2.1.6 Sell official Event merchandise and other e-commerce
products and services (subject to the execution of such individual promoter
agreements as may be necessary) to third parties on the Site via the Internet
and/or via Digital Media. CART agrees to use reasonable efforts to facilitate
the execution of such promoter agreements.
2.1.7 Syndicate Content and Original Content to third parties for
promotional use. All agreements for syndication must be approved in advance, in
writing, by CART. Such approval will include the right and license to use some
or all of the Marks, and shall not be unreasonably withheld, or withheld in a
manner which would result in the frustration of the purposes of this Agreement.
Nothing in this paragraph shall preclude CDME from receiving compensation for
such syndication, with such compensation to be subject to the terms of this
Agreement.
2.1.8 Sell official Event photographs to third parties via the
Internet and/or via Digital Media. It is understood by the parties that the sale
to the public of any official Event photographs shall be subject to agreement
and payment of a fee to Allsport Photography or CART's then existing Official
Photographer.
2.1.9 Create, advertise, sell and distribute through any channels
or mediums any Derivative Product. Notwithstanding the foregoing, all derivative
products (including the use of any Marks in connection therewith) must be
licensed by CART Licensed Products to CDME in a separate licensing agreement.
CART agrees not to treat CDME any differently than similarly
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situated CART Licensed Product Licensees with respect to each such product.
CDME's right to distribute, advertise and sell Derivative Products shall expire
180 days after the expiration or termination of this Agreement unless otherwise
provided in the Licensing Agreement for such Derivative Product(s).
2.1.10 Sell official CART and CART Licensed Products
merchandise, products, and services to third parties on the Site via the
Internet and/or via Digital Media through December 31, 1999 subject to a license
agreement to be executed with CART Licensed Products, Inc. where a sliding scale
commission shall be paid by CART Licensed Products to CDME as set forth in
attached Exhibit D. CDME will work with CART Licensed Products to identify and
implement a phased approach to incorporate CART Licensed Products merchandise
into the site. CART Licensed Products shall promote and market the CART.com
store as the place to purchase CART associated merchandise in CART Licensed
Product's marketing activities. CART and CDME agree to work together to develop
a long term plan for handling e-commerce, it being understood and agreed that
CDME shall be included in any plan. To that end, by September 1, 1999, the
parties shall work together to develop such plan and business model, including
the addition of third party(ies), if any, as part of such long term plan.
2.1.11 Include branding and promotion for Quokka Sports, Inc. in
connection with the Site substantially equivalent to that utilized by ESPN in
connection with its broadcast coverage of sporting events, provided that any
branding shall be subject to CART's prior written approval, which approval shall
not be unreasonably delayed or withheld.
2.2 As between CDME and CART, CART shall retain all rights to the domain
name CART.com. Notwithstanding the foregoing, promptly upon execution of this
Agreement and during the Term CART shall cause control of the aforementioned
domain to be transferred to CDME, and CDME shall maintain the domain and all
corresponding domain entries. If CART ceases to have rights to the domain
CART.com (for instance, following a registration dispute), the parties will use
their best efforts to provide a new address and cooperate to ensure that there
shall be minimal interruption in service for the Site.
3. CONTRIBUTIONS OF THE PARTIES.
3.1 CDME agrees to utilize the following technology, intellectual
property, and hardware and software resources in connection with coverage of the
Events: Quokka Sports Immersion(TM) tools, technologies, rights, and know-how
including, but not limited to, the Quokka Replication System, race viewers,
Quokka Sports Feed, and production processes. CART shall have no rights to use
the foregoing for any purpose, nor shall CART acquire any rights in the
foregoing, and all rights therein shall remain with CDME or Quokka Sports, Inc.
3.2 CDME shall be responsible for constructing at its own expense and
risk the Site, including the design of the Interface, construction of the Site
infrastructure and production of Original Content. A delivery schedule is
attached as Exhibit E. If the Site has not been launched by April 1, 1999, CDME
shall pay all expenses for CART to continue its current contract for CART.com
with U.N. Productions from April 1, 1999 through the date of launch.
3.2.1 Subject to Section 2.1.3 and 2.1.4, CDME shall maintain
responsibility for all editorial, design and content aspects of the Site and
CDME shall utilize the best efforts of its creative, editorial, engineering,
technical, operations and production staff to improve the level of the current
CART digital interactive media coverage from its present state so as to remain a
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leader in digital interactive media involving the Internet as well as successor
or future interactive networks.
3.2.2 As a part of the Site, CDME will provide a corporate
relations section as well as a restricted access section for press relations.
Upon request of CART, additional non-revenue generating sections will also be
added, which may result in a charge to CART. Such charge, if any, shall be based
upon actual costs to CDME. CDME shall provide to CART a quote for the provision
of such services. If CART finds a third party which will provide such services
at less cost, then CART may contract with such third party, except that prior to
such contract, CDME shall be given the opportunity to match the offer from the
third party. In the event that CDME matches the third party pricing, CART shall
use CDME for the provision of such service. The parties shall mutually agree to
the overall image for the website which in all cases shall be consistent with
CART's overall marketing strategies, branding characteristics and creative look
in the marketplace.
3.2.3 CDME will provide its QSI infrastructure (including
interfaces into the venue management system for results and scoring, remote
publishing, telemetry, QSI information system, etc.) in connection with the
Site.
3.2.4 CDME will provide full and complete management of and
operations of hosting infrastructure (T3, hardware, software, 24X7 support,
etc.) for the Site. At CDME's request, CART shall continue its current contract
with U.N. Productions with respect to CART.com from January 1, 1999 to March 31,
1999. CDME shall reimburse CART for such expense at a total sum for such period
not to exceed $[*] per month.
3.2.5 CDME will provide all customer service functions (web
master, etc.) associated with the Site, except for corporate relations, press
customer service functions, and other requested non-revenue generation section
functions which will be handled directly by CART and for which CART shall
generate all content. CDME will provide templates, remote publishing tools and
support for CART to manage these areas expeditiously and autonomously. CDME
shall perform all functions in conjunction with its role as host server for the
Site, consistent with those services normally provided by web Site servers. CDME
will use its best efforts to provide continuous, uninterrupted operation of the
Site. CDME will provide comprehensive Site maintenance, changes, additions and
any other steps reasonably necessary to maintain the integrity, quality and
performance of the Site. All major changes to the Site shall be made in a timely
manner pursuant to an agreed upon review process, before being made available to
the general public.
3.2.6 CDME will specify and manage all traffic verification as
well as analysis and research services for the Site through I-Pro, or such other
recognized independent verification group as the parties may agree upon, with
respect to mutually agreed upon audience metrics.
3.2.7 CDME will use best efforts to integrate into the Site
reciprocal links between the Site and the web sites of the racing teams,
drivers, Events and CART official sponsors (e.g. Omega and Federal Express), and
all reasonable efforts related to other major motorsport sites.
3.2.8 CDME will provide on-line Site promotion and marketing
subject to CART approval, which shall not be unreasonably withheld or delayed,
and will work closely with CART Marketing. CDME shall provide to CART the
details for such proposed efforts, it being understood that these efforts shall
be commensurate with the activities undertaken in conjunction
[*] Confidential Treatment Requested.
6.
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with the Whitbread Race Around the World or the Around Alone Race, whichever
shall be greater.
3.2.9 CART shall provide a full-time liaison, based at the CART
office, to coordinate with CART, at CDME's expense. The liaison shall be subject
to the parties' periodic mutual approval. The amount CDME shall provide under
this paragraph shall not exceed $[*] annually, plus annual increases not to
exceed [*] per annum.
3.2.10 CDME agrees to consider providing on the Site an
additional section covering the 29th Car Concept. In connection therewith, CDME
shall study such concept and present a proposal to CART no later than September
30, 1999 with respect to inclusion of such concept in the Site during the 2000
season. In the event that CDME, in its reasonable judgment, determines that any
such section is not technically feasible or financially sustainable for 2000,
then the parties shall mutually agree upon a plan for reconsidering the concept.
Any revenues from such concept shall be included within Gross Revenues
hereunder. In addition to the [*] percent [*] set forth in Section 6.1, an
additional [*] percent [*] of any subscription revenues [*] shall be paid to
CART, [*].
3.2.11 CDME also agrees to consider providing on the Site
additional sections suggested by CART. Any revenues from such sections shall be
included within Gross Revenues hereunder. In the event that CDME, in its
reasonable judgment, determines that any such section is technically feasible
and financially sustainable, but nevertheless elects not to undertake such
section, then CART shall be free to pursue such project with any third party or
in its own name, provided (1) that CDME is the systems integrator and takes
primary responsibility for integrating such section into the Site and (2) that
there shall be no use of Original Content without the payment of a mutually
acceptable sum to CDME which shall be comparable to then-existing industry
charges, but at a minimum will cover all actual costs to CDME.
3.3 As between CDME and CART, CDME shall retain all rights to the
technology, intellectual property, and resources contributed solely by CDME as
well as any Software, Interface and Original Content developed by it or its
agent(s) for CDME in connection with the Events.
3.4 Each party shall provide the other during the Term a non-exclusive,
royalty free license to use and access all content developed by it as well as
all third party content licensed by it, to the extent permitted by such third
parties, solely for use in connection with any publicity and promotion of the
Events or Site.
3.5 In connection with CDME's efforts hereunder, to the extent such
rights are available for CART to provide, CART shall provide the following at no
cost to CDME:
3.5.1 Real-time access and ability to use all audio feeds and
communications associated with the Events (e.g., CART Radio Network; driver/pit
crew; and track announcer).
3.5.2 Subject to Section 5.2.3 below, real-time access and
ability to use real-time results, timing and scoring systems and feeds. During
1999, and as long as Omega/Swiss Timing is CART's official timekeeper, access to
timing and scoring feeds [*] Omega/Swiss Timing and [*] Omega/Swiss Timing
receiving appropriate branding recognition on the Site. Thereafter, any
successor CART timing and scoring provider
[*] Confidential Treatment Requested.
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shall receive appropriate branding recognition on the Site, which shall be
comparable to that provided as of the effective date of this Agreement.
3.5.3 Real-time access and ability to use official CART/Event
photographs in connection with the Site and for promotion purposes only, it
being understood that any specific sale of such photographs shall be subject to
Section 2.1.8.
3.5.4 Reasonable efforts with Event participants (e.g. teams,
drivers, crews) to provide Event Data which CART does not own, control, or have
the rights to utilize. CART may include in future participant agreements various
additional assets to be made available to CDME for the Site.
3.5.5 Access to and ability to use all historical and other
relevant information, photographs, video, audio, statistics and data under the
control or license of CART.
3.5.6 Reasonable efforts to promote the Site URL to the widest
extent possible, such reasonable efforts to include placement of the URL in TV
and radio advertisements and in broadcasts on the CART Radio Network and in
broadcasts outside the United States and placement of the URL on the starter
vest, letterhead, business cards, advertisements and other forms of printed
matter, electronic material, or broadcast material distributed by CART. CART
will also use reasonable efforts to assist CDME to secure placement of banners
or signs with the URL on high visibility spots (for spectators and broadcast
cameras) at the venues and in such other locations as may be mutually agreed, it
being understood that such additional exposure may be at an incremental cost to
CDME.
3.5.7 Subject to CART's existing agreement [*], CART will
exercise reasonable efforts with [*] to permit CDME access to and use of [*] on
the Site and for promotion of the URL. To the extent that [*] are available,
CART will use reasonable efforts to provide access to [*]. CDME recognizes that
there may be some restrictions on the use of such assets.
3.5.8 Reasonable efforts to assist CDME in obtaining a reasonable
number of preferred venue credentials, Event tickets, parking passes and
hospitality access passes (to the extent available) for its employees, sponsors
and guests, at the expense of CDME.
3.5.9 Annual all access credentials for working CDME personnel
and will exercise reasonable efforts to provide parking passes for such CDME
personnel, subject to availability.
3.5.10 Reasonable efforts to assist CDME in meeting its logistics
and venue operations needs, it being understood that, depending on the size and
amount of equipment to be utilized, a fee, in certain circumstances, may be
payable to the event promoter. CART shall use reasonable efforts to assist CDME
in its negotiations of such fees with the promoter. At least ten (10) days prior
to an Event, CDME shall provide details regarding its proposed requirements.
3.5.11 Unrestricted access to CART venues with cameras,
microphones and other equipment as necessary for CDME to acquire digital assets
and set up venue operations, subject to the provisions and restrictions in this
Agreement, including but not limited to CART's existing contractual obligations
to [*].
[*] Confidential Treatment Requested.
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3.5.12 Reasonable access to CART's current on-line database, fan
club database and affinity database as well as all marketing demographics,
surveys, television ratings, and other information which may assist CDME in its
marketing and sales efforts hereunder.
4. TERM.
The Term of this Agreement shall commence on January 1, 1999, and shall
continue through and until December 31, 2003, unless extended as set forth
herein. The parties shall negotiate in good faith for the extension of this
Agreement, such negotiations to commence on or around July 1, 2002, and to
continue for at least ninety (90) days thereafter or until an agreement is
reached if sooner. If the parties are unable to reach an agreement for such an
extension, CART shall be free to enter into negotiations with third parties
regarding the rights which are the subject of this Agreement, [*].
5. RIGHT TO TERMINATE.
5.1 CART shall have the right to terminate this Agreement for the
reasons set forth below:
5.1.1 If CDME fails to maintain state of the art quality and
technological enhancements, subject to notice and an opportunity to cure as set
forth below. CART shall notify CDME in writing with respect to any alleged
failure and the parties shall meet within one (1) week thereafter to discuss
such notification. Thereafter, CDME shall have thirty (30) days in which to cure
any failure. If the default cannot be cured within thirty (30) days, but
reasonable good faith efforts have been undertaken to cure the default within
that time period, a reasonable extension of time in which to cure the default
shall be given and agreed upon between the parties.
5.1.2 If CDME fails to attain the minimum Site traffic level in
any quarter as set forth in the attached Exhibit F, subject to notice and an
opportunity to cure as set forth below. CART shall notify CDME in writing with
respect to any such failure and the parties shall meet within one (1) week
thereafter to discuss such notification. Thereafter, CDME shall have ninety (90)
days in which to increase traffic to the Site to the required level. If the Site
traffic cannot be restored within ninety (90) days, but reasonable good faith
efforts have been undertaken to cure the default within that time period, a
reasonable extension of time in which to increase the Site traffic to levels as
required by Exhibit F shall be given and agreed upon between the parties.
5.1.3 In the event that CDME or Quokka Sports, Inc. provides
similar services to an open wheel professional auto racing sanctioning body,
league or series currently domiciled in the United States which promotes
products or services competitive with those of CART.
5.1.4 If more than forty nine percent (49%) of the ownership or
other beneficial interest in CDME or Quokka Sports, Inc. is transferred, sold,
or otherwise assigned, either voluntarily or by operation of law, in one or more
transactions, to an individual or entity whose products or services are
competitive or in conflict with those of CART. Such right of termination shall
be exercised, if at all, by CART within thirty (30) days of such change in
ownership.
[*] Confidential Treatment Requested.
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5.2 CDME shall have the right to terminate this Agreement for the
reasons set forth below:
5.2.1 The failure of the parties to reach a mutually acceptable
manner in which to incorporate e-commerce revenue opportunities within the Site
following the conclusion of the discussions provided for in Section 2.1.10
above.
5.2.2 If more than forty nine percent (49%) of the ownership or
other beneficial interest in CART is transferred, sold, or otherwise assigned,
either voluntarily or by operation of law, in one or more transactions, to an
individual or entity whose products or services are competitive or in conflict
with those of CDME or Quokka Sports, Inc. Such right of termination shall be
exercised, if at all, by CDME within thirty (30) days of such change in
ownership.
5.2.3 [*].
5.3 Either party shall have the right to terminate this Agreement upon
the material breach of any term of this Agreement which is not cured within
sixty (60) days after notice of such breach to the other party.
5.4 Upon termination or expiration of this Agreement, all intellectual
property rights shall revert to their owners, as determined by this Agreement.
5.4.1 Upon the request of CART, CDME shall ensure that the Site
shall remain active and be serviced by CDME for up to 180 days following
termination or expiration of this Agreement, which shall allow CART sufficient
time to obtain another provider. Upon the expiration of 180 days, or CART's
notice to CDME, servicing of the Site by CDME shall cease. If CART opts to
exercise this option, a fee payment from CART to CDME shall be mutually agreed
upon.
6. REVENUES.
6.1 As a license fee for all rights and services herein, CDME shall pay
to CART [*] percent [*] of all Gross Receipts generated hereunder over the Term
with a minimum guarantee of [*], which minimum guarantee shall be payable as
follows: Year 1-$[*] shall be payable upon execution of this Agreement; Year
2-$[*]; Year 3-$[*]; Year 4-$[*]; and Year 5-$[*]. The guaranteed sums for years
2, 3, 4 and 5 shall be paid in two (2) equal installments, not later January 1
and July 1 of each such year. Gross Receipts shall mean all revenue (including
value in-kind) actually received by CDME, including, but not limited to revenue
from [*], and [*]. Gross receipts shall not include any sums received by CDME
which are returned for any reason at law or equity. Value in-kind will be valued
based upon best customer pricing, as determined by the applicable vendor. No
commercial partnerships or advertising shall be sold by CDME in conjunction with
other Quokka Sports' projects unless the following procedure has transpired. All
sales shall be subject to the restrictions of Section 7. At any time, CDME or
CART may [*]. CART shall have the right for a period of twenty one (21) days
thereafter to [*]
[*] Confidential Treatment Requested.
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[*]. Having purchased a category, CART or Quokka Sports would be free to resell
such packages at a higher price if it so chooses without any duty to account for
or otherwise share revenues over and above the agreed price.
6.2 In addition to the sums set forth in Section 6.1, CDME shall also
pay a Referral Fee of [*] percent [*] of the first years' Net Sales Price (as
defined below) to CART, the CART racing teams, the CART drivers or CART event
promoters, as the case may be, for the successful referral of any commercial
partner to CDME for the Site for the first year of any deal. Thereafter, in the
case of any multi-year deal, the Referral Fee shall be [*] percent [*] of the
Net Sales Price for each such additional year of such agreement, including any
option periods exercised as provided for in such agreement. Net Sales Price
shall mean the gross sales price of the contract less any applicable agency
commission or fee. For an entity or person to qualify for a Referral Fee, that
person or entity must have provided substantial and material assistance and
ongoing support in obtaining a binding contract. Substantial and material
assistance shall mean the introduction of CDME to the person who ultimately
agrees to the binding contract or an employee of the contracting company, or an
agent who was involved in the sales process. For a Referral Fee to be paid to a
person or entity, a commercial partner must enter into a binding contract with
CDME. Only one Referral Fee shall be payable on any contract. Any Referral Fee
shall only be computed on a quarterly basis and shall be due and payable only on
any sums actually received in connection with such contract.
6.3 CDME shall compute its Gross Receipts on a quarterly basis in
accordance with generally accepted accounting principles and shall distribute to
CART any excess sums due over and above the minimum guaranteed license fee with
a statement thereof within ninety (90) days after the conclusion of each
calendar year. CART shall have the right to examine CDME's books and records
with respect to any statements rendered. Except as stated below, such
examination shall be at CART's sole expense and shall be commenced not earlier
than ten (10) days after the date of such notice by any independent accountant
designated by CART provided any such person shall sign a standard
confidentiality agreement reasonably acceptable to CDME. If the examination
reveals that CDME failed to account for and properly pay fees due to CART
hereunder in an amount exceeding five percent (5%) of the fees actually paid and
accounted for, then CDME shall pay CART such past due amounts with interest at
the Prime Rate as determined by the Wall Street Journal, and reimburse CART for
the total cost of the examination. Such examinations shall be made during CDME's
usual business hours and CDME shall make available to CART for inspection any
and all books and records reasonably requested in the format maintained with
respect to such statements. CART shall have the right to audit CDME's books and
records no more than once in any twelve (12) month period. CART agrees that it
shall not have any right to audit any item more than two (2) years old and may
not seek information on or dispute any items not included within the audit
period.
7. COMMERCIAL PARTNERSHIPS AND SITE ADVERTISING.
CDME will provide for all [*] in connection with the Site, subject to
the terms and conditions contained in this Agreement. In connection with the
sale of commercial partnership opportunities and advertising on the Site,[*]:
(1) [*]
[*] Confidential Treatment Requested.
11.
<PAGE> 12
[*]; (2) [*], which approval would not be unreasonably withheld; (3) [*], which
approval would not be unreasonably withheld; (4) [*] would meet on such regular
basis as is necessary in order to ensure that there is substantial communication
and continuity between the parties with respect to their individual endeavors to
secure [*] and [*]; it is understood that the parties will work together in good
faith to assist each other in [*], and if necessary, the parties will each agree
to [*]; and (5) [*]. All commercial partnership and advertising sales shall, to
CART's reasonable satisfaction, be in good taste.
8. EQUITY CONSIDERATION.
Concurrently with the execution and delivery of this Agreement, CDME
will cause Quokka Sports, Inc. to issue to CART the Quokka Warrants as set forth
in Exhibit G.
9. CART SPONSOR PROTECTION.
CDME will provide for all advertising and commercial partnership sales
in connection with the Site, subject to the following conditions: (i) CART will
identify a limited number of categories where CDME will only approach one
company designated by CART about a commercial partnership. These companies shall
be designated in a list of current CART official sponsors to be appended hereto
as Exhibit K such list to identify the expiration dates of such Sponsor
relationships. Once a current CART sponsor agreement expires, then such company
will be handled in accordance with the procedures set forth in subsection (iii)
hereof If CDME were unable to sell such company any commercial partnership
packages, then CDME will not approach any competitors; (ii) CART will use all
appropriate efforts to introduce the CDME sales team to key personnel at the
companies designated under (i) above; (iii) As to other important CART
customers, CDME will negotiate first with such companies for such packages. If
CDME is unable to reach an agreement with such companies, then CDME is free to
approach and sell a package to any competitor; (iv) CART and CDME shall have the
opportunity to purchase one or more of the categories at a predetermined price.
Having purchased a category, CDME or CART is free to resell such packages at a
higher price if it so chooses without any duty to account for or otherwise share
revenues with the other party; and (v) Notwithstanding the foregoing, it is
understood that as to sponsor negotiations currently in progress by CART,
website involvement already committed by CART shall be honored and shall not be
considered as advertising and commercial partnership sales for purposes of this
Agreement. Subject to the terms stated above, CART releases all categories of
commercial partnership to CDME (except for tobacco and subject to the other
constraints described in this Agreement) for the duration of this Agreement.
CDME will agree not to sell site commercial partnerships competitive with CART
sponsors identified in Exhibit H until the current respective agreement
terminates, at which time the specific category would be released by CART to
CDME, as provided above. Prior to the release of the category, CDME will agree
to continue all applicable brand identification on the site in no less
prominence than currently exists.
[*] Confidential Treatment Requested.
12.
<PAGE> 13
10. SANCTIONING.
CART warrants that the Events are CART sanctioned and will be conducted
in accordance with all applicable rules and regulations and all international,
foreign, federal, state, and local laws.
11. NAME AND LIKENESS.
To the extent that CART owns or licenses such rights, CDME and any of
its licensees shall have the right and, to the extent provided for in this
Agreement, may grant to others the right to reproduce, print, publish or
disseminate in any medium the names, likenesses, voice and biographical material
of CART, the participants in the Events, including their sponsors, or any person
appearing in or connected with the Events as news or information, for use on the
Site or for Site advertising purposes (including without limitation
institutional advertising) and including but not limited to the advertising and
promotion of the coverage hereunder and in connection therewith the products or
services of any advertiser or commercial partner thereof, provided, however,
that there shall be no direct or implied endorsement by any such persons of any
product or service without such person's prior written consent.
12. WARRANTIES OF CART.
CART warrants, represents and undertakes to CDME as follows:
12.1 that it is a company duly incorporated under the laws of the State
of Delaware and that it has the power and authority to enter into and to perform
all obligations under this Agreement;
12.2 that nothing in the Event Data, the Marks, the Content or the
other data and information which is provided to CDME hereunder by CART shall
infringe the copyright, trade marks or other intellectual property rights of any
person or entity;
12.3 that CART has the right to grant to CDME all of the rights granted
in this Agreement, that CART is not presently a party to any Agreement which
conflicts with the rights and terms hereof and that CART will not grant any
rights which might interfere or derogate the rights granted herein;
12.4 that CART shall conduct a minimum of 18 Events pursuant to an
annually published schedule;
12.5 that the participants in the Events shall be of comparable ability
to those participating in previous versions of the Events;
12.6 that all representations to CDME by CART and all representations
made by CART to third parties about any and all elements of the Events are and
shall be accurate and true in every respect.
12.7 that all publicity which it issues or disseminates or otherwise
makes available concerning all elements of the Events will be accurate and true
in all respects, to the best of CART's own knowledge.
13.
<PAGE> 14
13. WARRANTIES OF CDME.
CDME warrants, represents and undertakes to CART as follows:
13.1 that it is a company duly organized under the laws of the state of
Delaware and that it has the power and authority to enter into and to perform
all obligations under this Agreement;
13.2 that nothing generated by CDME with respect to coverage of the
Events shall infringe the copyright, trade marks or other intellectual property
right of any person or entity.
13.3 that all representations to CART by CDME and all representations
made by CDME to third parties about any and all elements of the Site are and
shall be accurate and true in every respect.
14. DISCLAIMER.
THE WARRANTIES SET FORTH IN SECTIONS 12 AND 13 OF THIS AGREEMENT ARE THE
SOLE AND EXCLUSIVE WARRANTIES OF THE PARTIES HERETO IN CONNECTION WITH THIS
AGREEMENT, AND THE PARTIES HEREBY EXPRESSLY DISCLAIM ANY OTHER WARRANTIES
WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT, LIMITATION THE WARRANTIES OF
TITLE,, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
15. INDEMNIFICATION.
15.1 CART shall indemnify and hold harmless CDME, its members and
employees and any person, firm or corporation deriving rights from CDME from and
against any and all claims, damages, liabilities, costs and expenses (including
reasonable counsel fees), arising out of (1) any use of the coverage as
permitted hereunder (including without limitation the Event Data); and (2) a
breach of any warranty, representation or undertaking made by or undertaken by
CART herein. CDME shall promptly notify CART of any claim to which the above
indemnity applies and CART shall defend the same at its own expense. CDME will
cooperate in the defense of any such claim at the reasonable request and at the
expense of CART. Notwithstanding the foregoing, CART shall not indemnify CDME to
the extent that the foregoing would not have occurred but for the actions of
CDME.
15.2 CDME shall indemnify and hold harmless CART and its employees and
any person, firm or corporation deriving rights from CART from and against any
and all claims, damages, liabilities, costs and expenses (including reasonable
counsel fees), arising out of (1) CDME's actual coverage of the Events; or (2) a
breach of any warranty, representation or undertaking made by or undertaken by
CDME herein. CART shall promptly notify CDME of any claim to which the above
indemnity applies and CDME shall defend the same at its own expense. CART will
cooperate in the defense of any such claim at the reasonable request and at the
expense of CDME. Notwithstanding the foregoing, CDME shall not indemnify CART to
the extent that the foregoing would not have occurred but for the actions of
CART.
14.
<PAGE> 15
16. COPYRIGHT AND OTHER RIGHTS.
16.1 Each Party shall own all worldwide copyright and other intellectual
property interests in the content it has provided to the Site; i.e., CDME shall
retain its rights in all Original Content, Interfaces and Software as stated in
Section 3.3 above, and CART shall retain its rights in all Content. Each party
shall have the unrestricted and unencumbered right to use and reuse or to
assign, license, sell or otherwise exploit, the copyright and other property
right interests which it owns hereunder except as otherwise provided in this
Agreement. The copyright notice on the Site shall include the following
notation: "(C) (year) CART Digital Media Enterprises, L.L.C.; Material provided
by CART (C) (year) Championship Auto Racing Teams, Inc.," with a link to a page
which will describe in reasonable detail the copyrighted and other contributions
of the parties.
16.2 CDME shall own all rights to the information about and access to
the people who visit or register with the Site, to the extent that it may
lawfully own such rights. Notwithstanding the foregoing, certain information as
listed hereafter shall be jointly owned by CDME and CART. Such jointly owned
information shall consist solely of information sent to or coming through
editor@cart.com <mailto:editor@cart.com>, info@cart.com <mailto:info@cart.com>,
subscriber information with respect to the CART Newsletter, CART Winners Circle
Club, CART Kids Coloring Contest, individuals purchasing through the CART Store
and such other areas of the Site as may be mutually agreed, as well as mutually
agreed Site traffic information. Such Site traffic information may be published
by CART. All other information provided by CDME to CART is for internal CART use
and may only be distributed with the prior written approval of CDME. Any usage
of subscriber information shall be subject to the limitations of the Site's
Privacy Policy which shall be mutually agreed upon by the parties.
16.3 Unless otherwise agreed, CART and CDMEs' suppliers and providers will
retain all worldwide copyright and other intellectual property interest in the
content they provide to the Site and CDME shall include an appropriate notice.
17. FORCE MAJEURE.
17.1 If CDME's coverage of any of the Events is prevented or omitted in
its entirety because of acts of God; accident; fire; lockout; strike or other
labor dispute; riot or civil commotion; act of public enemy; enactment, rule,
order or act of any government or any governmental authority or instrumentality
(whether federal, state, local or foreign); failure of technical facilities
beyond the reasonable control of CDME; or other cause of a similar or different
nature beyond CDME's control ("Force Majeure Event"); it shall not be, and shall
not be deemed to be, a breach of this Agreement by CDME to perform its
obligations hereunder during the duration of a Force Majeure Event, and
performance of CDME's obligations in connection with the affected Events shall
be excused for the duration of the Force Majeure Event and for a reasonable
period thereafter; provided that CDME shall use reasonable efforts to minimize
the extent of the delay in performance caused by the Force Majeure Event.
17.2 Notwithstanding anything to the contrary in Section 17.1, if for
any reason beyond CART's control (including without limitation adverse weather
conditions) any of the Events are not held on the scheduled dates, CART shall
immediately notify CDME of the rescheduled date(s) of the Events, if any, and
CDME, at its sole election, shall have the right either (i) to continue with
coverage of the Events on the rescheduled date(s) pursuant to the terms and
conditions hereof, or (ii) to choose not to cover any such delayed Event. In the
event that CDME
15.
<PAGE> 16
chooses option (ii) above, such choice shall not be, and shall not be deemed to
be, a breach of this Agreement, and the terms and conditions of this Agreement
otherwise shall remain in full force and effect.
18. INDEPENDENT CONTRACTORS.
Nothing herein contained shall constitute or be construed as the
creation of any agency, partnership or joint venture relationship between the
parties hereto. Neither party shall have the right to obligate or bind the other
in any manner whatsoever, and nothing herein contained shall give or is intended
to give any rights of any kind to any third persons. The relationship of the
parties shall be as independent contractors.
19. CONFIDENTIALITY.
The parties acknowledge that this Agreement and its terms shall be
confidential, except as required or reasonably necessary to comply with laws,
statutes, regulations, orders, and other governmental rules, including, without
limitation, any voluntary filing under the Securities Act of 1933, as amended,
or the Securities and Exchange Act of 1934, as amended. The parties further
acknowledge that, in the course of performing duties under this Agreement, each
party may obtain from the other party data or information of a confidential or
proprietary nature, including know-how and trade secrets, relating to the
business, the affairs, the development projects, or current or future products
or services of such party ("Confidential Information"). Confidential Information
may be disclosed to a party in writing, in other tangible form (including
e-mails), orally, or visually. Neither party will at any time either ~i)
publish, disclose or otherwise divulge any of the other party's Confidential
Information to any person, except its officers and employees under a contractual
duty to maintain the confidentiality of such information consistent with the
obligations imposed hereunder; or (ii) permit its officers or employees to
divulge any of the other party's Confidential Information without the express
prior written consent of the other party. Neither party shall use the other
party's Confidential Information except in the course of performing its duties
under this Agreement. Upon the other party's request or expiration or
termination of this Agreement for any reason, each party will immediately return
to the other party all of the other party's Confidential Information in its
possession, custody or control. The foregoing obligations will not apply to any
Confidential Information that (1) is already known to the receiving party; (2)
is or becomes publicly known through no wrongful act of the receiving party; (3)
is independently developed by the receiving party without use or benefit of the
disclosing party's Confidential Information or personnel who had access to the
same; (4) is received from a third party without similar restriction and without
breach of any obligation of confidentiality; or (5) is required to be disclosed
pursuant to a statutory or regulatory provision or court order, to the demanding
body and to the extent of such required disclosure only following notification
by the receiving party to the disclosing party of the request and notification
to the court or regulatory body of the confidential nature of the information.
Additionally, neither party shall be prohibited from disclosing the terms and
conditions of this agreement for any financing purposes if such is subject to
confidentiality agreements as protective as this Section 19. This paragraph
shall survive the termination or expiration of this Agreement.
20. NOTICE.
All notices, approvals, consents, waivers, and other communications
intended to have legal effect with regard to this Agreement must be given in
writing and delivered to the other party at the address set forth below by (a)
postage pre-paid, certified mail (return receipt requested); (b) Federal
Express; or (c)facsimile transmission (receipt confirmed, with a copy sent by
postage pre-
16.
<PAGE> 17
breach of this Agreement, and the terms and conditions of this Agreement
otherwise shall remain in full force and effect.
18. INDEPENDENT CONTRACTORS.
Nothing herein contained shall constitute or be construed as the
creation of any agency, partnership or joint venture relationship between the
parties hereto. Neither party shall have the right to obligate or bind the other
in any manner whatsoever, and nothing herein contained shall give or is intended
to give any rights of any kind to any third persons. The relationship of the
parties shall be as independent contractors.
19. CONFIDENTIALITY.
The parties acknowledge that this Agreement and its terms shall be
confidential, except as required or reasonably necessary to comply with laws,
statutes, regulations, orders, and other governmental rules, including, without
limitation, any voluntary filing under the Securities Act of 1933, as amended,
or the Securities and Exchange Act of 1934, as amended. The parties further
acknowledge that, in the course of performing duties under this Agreement, each
party may obtain from the other party data or information of a confidential or
proprietary nature, including know-how and trade secrets, relating to the
business, the affairs, the development projects, or current or future products
or services of such party ("Confidential Information"). Confidential Information
may be disclosed to a party in writing, in other tangible form (including
e-mails), orally, or visually. Neither party will at any time either ~i)
publish, disclose or otherwise divulge any of the other party's Confidential
Information to any person, except its officers and employees under a contractual
duty to maintain the confidentiality of such information consistent with the
obligations imposed hereunder; or (ii) permit its officers or employees to
divulge any of the other party's Confidential Information without the express
prior written consent of the other party. Neither party shall use the other
party's Confidential Information except in the course of performing its duties
under this Agreement. Upon the other party's request or expiration or
termination of this Agreement for any reason, each party will immediately return
to the other party all of the other party's Confidential Information in its
possession, custody or control. The foregoing obligations will not apply to any
Confidential Information that (1) is already known to the receiving party; (2)
is or becomes publicly known through no wrongful act of the receiving party; (3)
is independently developed by the receiving party without use or benefit of the
disclosing party's Confidential Information or personnel who had access to the
same; (4) is received from a third party without similar restriction and without
breach of any obligation of confidentiality; or (5) is required to be disclosed
pursuant to a statutory or regulatory provision or court order, to the demanding
body and to the extent of such required disclosure only following notification
by the receiving party to the disclosing party of the request and notification
to the court or regulatory body of the confidential nature of the information.
Additionally, neither party shall be prohibited from disclosing the terms and
conditions of this agreement for any financing purposes if such is subject to
confidentiality agreements as protective as this Section 19. This paragraph
shall survive the termination or expiration of this Agreement.
17.
<PAGE> 18
paid, certified mail), and will be effective upon receipt. Each party
may change its address for receipt of notices by giving notice of the new
address to the other party.
21. FURTHER ASSURANCES.
Each party agrees to execute and provide all such assurances, acts,
documents and things (including, without limitation, further or other legal or
beneficial assignments, transfers, grants, charges, copyright registrations and
any formalities required by any jurisdiction in any part of the universe) in
such location and such manner as the other party may from time to time
reasonably require in connection with perfecting or protecting or enforcing any
provision of this Agreement including assignments or rights granted to such
party hereunder.
22. LIMITATION IN LIABILITY; REMEDIES.
Neither party shall be liable to the other party for any incidental,
indirect, consequential, special, or punitive damages of any kind or nature
arising under or relating to this Agreement, whether such liability is asserted
on the basis of contract, tort (including negligence or strict liability), or
otherwise, even if either party has warned or been warned of the possibility of
any such loss or damage. This Section 22 is not intended to limit the
indemnification obligation of the parties with respect to third party claims
pursuant to Section 15 hereof.
23. GENERAL PROVISIONS.
23.1 This Agreement is the entire agreement of the parties. All prior
understandings, oral or written, if any, including but not limited to that
certain Letter of Agreement executed by the parties on January 4, 1999, have
been merged herein, or, if not merged, are hereby canceled. No representations
have been made except those expressly set forth herein.
23.2 Any amendment or discharge of this Agreement must be in writing and
signed by an officer of the party.
23.3 This Agreement may not be assigned in whole nor in part by either
party without the other party's prior written consent, which consent shall not
be unreasonably withheld. This agreement shall be binding upon both CART and
CDME and their successors and permitted assignees.
23.4 Nothing in this Agreement shall be construed so as to require the
commission of any act contrary to law, and whenever there is any conflict
between any provision of this Agreement and any material statute, law,
ordinance, rule or regulation, the latter shall prevail, but in such event, any
provisions of this Agreement so affected shall be curtailed and limited only to
the extent necessary to bring them within the applicable requirements, and the
remainder of this Agreement shall continue in full force and effect. The parties
hereby agree that they shall comply with the requirements of the U.S. Foreign
Corrupt Practices Act (the "Act") and shall refrain from any payments to third
parties which would cause either party to violate the Act.
23.5 Any dispute arising under this Agreement shall be promptly
submitted to and heard and determined by the American Arbitration Association
pursuant to its commercial arbitration rules in effect at the time of any
dispute. The determination of the arbitrator shall be binding on the parties,
shall not be appealable, and judgment on the award rendered may be entered in
any court having jurisdiction on the matter. The prevailing party (as determined
by the
17.
<PAGE> 19
arbitrator) shall be entitled to recover from the other party all costs
and expenses (including but not limited to attorney fees) incurred in enforcing
its rights under the arbitration process.
23.6 A waiver by either party of any term or condition of this Agreement
in any instance shall not be deemed or construed as a waiver of such term or
condition for the future or any subsequent breach thereof. All rights, remedies,
undertakings, obligations and agreements contained in this Agreement shall be
cumulative and none of them shall be in limitation of any other right, remedy,
undertaking, obligation or agreement of either party.
23.7 The headings hereunder are for ease of reference only and are not
part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement this
20th day of March 1999.
CHAMPIONSHIP AUTO RACING TEAMS, INC.
By: [SIGNATURE ILLEGIBLE]
---------------------------------
Name: ILLEGIBLE
------------------------------
Title: Chairman and CEO
-----------------------------
CART DIGITAL MEDIA
ENTERPRISES, LLC, by its
members:
By: /s/ R. H. WILLIAMS
---------------------------------
R. H. Williams, Manager
Dated: 3-20-99
------------------------------
By: /s/ GERALD R. FORSYTHE
---------------------------------
Gerald R. Forsythe, Manager
Dated: 3-20-99
-----------------------------
18.
<PAGE> 20
EXHIBIT A
LIST OF ASSETS TO BE PROVIDED AS EVENT DATA
(subject to editorial guidelines)
Official Radio Broadcaster Audio (subject to CART Radio Network Agreement)
Pace Car Communications (CDME shall be responsible for compliance with all
applicable laws, rules and regulations, including FCC compliance)
Driver/Pit Crew (Team Radio) Communications (subject to agreement with each
team; CDME shall be responsible for compliance with all applicable laws, rules
and regulations, including FCC compliance)
Track Announcer Audio (subject to informing and agreement by CART's race
promoters)
Results and Scoring Feeds and Data [*]
Timing Data in its final form
Statistical Data
Historical Information, Data, and Statistics (including Photographs, video and
audio) related to the events and the racers
Official Rulings
Circuit Data
Official Still Photographs [*]
Written materials in which CART owns the copyright
Participant Biographical Information
Event Access
[*] Confidential Treatment Requested.
<PAGE> 21
EXHIBIT B
TRADEMARKS
CART - name & logo
FEDEX CHAMPIONSHIP SERIES - name & logo
INDY LIGHTS SERIES - name & logo
TOYOTA ATLANTIC SERIES - name & logo
CART KIDS - name & logo
CART WINNER'S CIRCLE CLUB - name & logo
CHAMP CARS
CHAMPIONSHIP CARS
FEEL THE SPEED
Future Event-related marks will be provided subject to mutual agreement.
<PAGE> 22
EXHIBIT C
COPYRIGHT AND TRADEMARK NOTICES
All contents of this Web site are: (C)1999 CART Digital Media Enterprises, LLC;
Material provided by CART (C)1999 Championship Auto Racing Teams, Inc. All
rights reserved.
[list from exhibit] are trademarks or registered trademarks of Championship Auto
Racing Teams, Inc. Other product and company names mentioned herein may be the
trademarks of their respective owners.
USE LIMITATIONS
This Web Site is for the User's personal, non-commercial use. User may not
modify, copy, distribute, transmit, display, perform, reproduce, publish,
license, create derivative works from, transfer, or sell any information,
software, products or services obtained from this Web Site. As a condition of
use of this Web Site, User warrants to CDME and CART that User will not use this
Web Site for any purpose that is unlawful or prohibited by these terms,
conditions, and notices.
LIABILITY DISCLAIMER
THE INFORMATION SOFTWARE, PRODUCTS, AND SERVICES PUBLISHED ON THIS WEB SITE MAY
INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO
THE INFORMATION HEREIN. CART DIGITAL MEDIA ENTERPRISES, LLC (CDME) AND
CHAMPIONSHIP AUTO RACING TEAMS, INC. (CART) MAY MAKE IMPROVEMENTS AND/OR CHANGES
IN THIS WEB SITE AT ANY TIME.
CDME AND CART MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION,
SOFTWARE, PRODUCTS, AND SERVICES CONTAINED ON THIS WEB SITE FOR ANY PURPOSE. ALL
SUCH INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES ARE PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND. CDME AND CART HEREBY DISCLAIM ALL WARRANTIES AND
CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES,
INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL CDME OR CART
BE LIABLE FOR AND DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF
THIS WEB SITE OR WITH THE DELAY OR INABILITY TO USE THIS WEB SITE, OR OTHERWISE
ARISING OUT OF THE USE OF THIS WEB SITE, WHETHER BASED ON CONTRACT, TORT, STRICT
LIABILITY, OR OTHERWISE, EVEN IF CDME OR CART HAS BEEN ADVISED OF THE
POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,
THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
[privacy policy to be added]
<PAGE> 23
EXHIBIT D
CART LICENSED PRODUCTS
SLIDING SCALE COMMISSION FOR 1999
[*] Base -- $[*]
<TABLE>
<CAPTION>
If Gross Sales Exceed the Base by Commission to be paid on all Gross
Sales shall be
<S> <C>
0-50%...................................... [*]
51%-100%................................... [*]
101% - 150% ............................... [*]
151% - 200%................................ [*]
201%+ ..................................... [*]
</TABLE>
Commissions shall be paid on a quarterly basis. Based upon the annual Gross
Sales figures, CART Licensed Products shall provide any incremental commission
payment to CDME by February 2000.
[*] Confidential Treatment Requested.
<PAGE> 24
EXHIBIT E
DELIVERY SCHEDULE
cart.com Phase I
*Basic site
*Key QSI elements
*CART business section
Assemble Team December, 1998
Start Production January 1, 1999
Initial Creative Complete January 15, 1999
Alpha Site February 15, 1999
Beta/Preview Site March 3, 1999
Go Live March 16, 1999
<PAGE> 25
EXHIBIT F
SITE TRAFFIC
<TABLE>
<CAPTION>
YEAR 1998 1999 2000 2001 2002 2003
--------------- ------------- ------------- ------------ ------------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Visits [*] [*] [*] [*] [*] [*]
(millions)
% Change year Approx. [*] [*] [*] [*] [*]
on year [*]
</TABLE>
[*] Confidential Treatment Requested.
<PAGE> 26
WARRANTS
<PAGE> 27
NO. PWC-8
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE 11,364 SHARES
OF SERIES C PREFERRED STOCK OF
QUOKKA SPORTS, INC.
(Void after March 19, 2004)
This certifies that CHAMPIONSHIP AUTO RACING TEAMS, INC. or its assigns (the
"Holder"), for value received, is entitled to purchase from QUOKKA SPORTS, INC.,
a Delaware corporation (the "Company") having a place of business at 525 Brannan
Street, San Francisco, California, a maximum of Eleven Thousand Three Hundred
Sixty Four (11,364) fully paid and nonassessable shares of Warrant Stock (as
defined below) for cash at such time(s) as set forth below and at a purchase
price of $11.00 per share (the "Stock Purchase Price") up to and including 5:00
p.m. (Pacific time) on the date five (5) years from the date of this Warrant,
such date being referred to herein as the "Expiration Date," upon surrender to
the Company at its principal office (or at such other location as the Company
may advise the Holder in writing) of this Warrant properly endorsed with the
Form of Subscription attached hereto duly filled in and signed and, if
applicable, upon payment in cash or by check of the aggregate Stock Purchase
Price for the number of shares for which this Warrant is being exercised
determined in accordance with the provisions hereof. The Stock Purchase Price
and the number of shares purchasable hereunder are subject to adjustment as
provided in Section 3 of this Warrant. The term "Warrant Stock" refers to the
Company's Series C Preferred Stock and any other securities at any time
receivable or issuable upon exercise of this Warrant.
Notwithstanding anything contained herein to the contrary, in the event the
Agreement (the "Agreement"), dated effective as of January 1, 1999, between the
Holder and CART DIGITAL MEDIA ENTERPRISES, LLC ("CDME"), or any other agreement
entered into among the Holder, the Company and CDME (or any combination thereof)
pursuant to the Agreement, is terminated, either by the Company or CDME as a
result of uncured material breach by Holder or by Holder for other than an
uncured material breach by the Company or CDME, such an event (the "Termination
Event") will cause this Warrant to become immediately void and the date of such
Termination Event (the "Termination Date") will be deemed the "Expiration Date"
for purposes hereof. Notwithstanding anything contained herein to the contrary
however, upon a Termination Event, the Holder will have ninety (90) days from
the Termination Date to exercise this Warrant to the extent of the Vested
Portion as of the Termination Date (as determined under Section 1.1 below).
<PAGE> 28
This Warrant is subject to the following terms and conditions:
1. VESTING; EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
1.1 VESTING. The portion of this Warrant that is exercisable at any
given time is determined by the chart below and is referred to as the "Vested
Portion."
<TABLE>
<CAPTION>
VESTING DATE:
DATE SHARES ARE STOCK
VESTED PORTION FIRST EXERCISABLE PURCHASE PRICE
-------------- ----------------- --------------
<S> <C> <C>
11,364 December 31, 1999 $11.00
</TABLE>
1.2 EXERCISE. The Vested Portion of this Warrant is exercisable at
the option of the Holder, at any time or from time to time up to the Expiration
Date for all or any part of the shares of Warrant Stock (but not for a fraction
of a share) which may be purchased hereunder. The Company agrees that the
shares of Warrant Stock purchased under this Warrant shall be and are deemed to
be issued to the Holder hereof as the record owner of such shares as of the
close of business of the date on which this Warrant shall have been surrendered,
properly endorsed, the completed, executed Form of Subscription delivered and
payment made for such shares. Certificates for the shares of Warrant Stock so
purchased; together with any other securities or property to which the Holder
hereof is entitled upon such exercise, shall be delivered to the Holder hereof
by the Company at the Company's expense within a reasonable time after the
rights represented by this Warrant have been so exercised. In case of a
purchase of less than all the shares which may be purchased under this Warrant,
the Company shall cancel this Warrant and execute and deliver a new Warrant or
Warrants of like tenor for the balance of the shares purchasable under the
Warrant surrendered upon such purchase to the Holder hereof within a reasonable
time. Each stock certificate so delivered shall be in such denominations of
Warrant Stock as may be requested by the Holder hereof and shall be registered
in the name of such Holder.
1.3 NET ISSUE EXERCISE. Notwithstanding any provisions herein to
the contrary, if the fair market value of one share of the Company's Warrant
Stock is greater than the Stock Purchase Price (at the date of calculation as
set forth below), in lieu of exercising this Warrant for cash, the Holder may
elect to receive shares equal to the value (as determined below) of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with the properly endorsed Form of
Subscription and notice of such election in which event the Company shall issue
to the Holder a number of shares of Warrant Stock computed using the following
formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Warrant Stock to be issued to
the Holder
2.
<PAGE> 29
Y = the number of shares of Warrant Stock purchasable under the
Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at
the date of such calculation)
A = the fair market value of one share of the Company's Warrant
Stock (at the date of such calculation)
B = Stock Purchase Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value of one share of Warrant
Stock shall be determined by the Company's Board of Directors in good faith;
provided, however, that in the event the Company makes an initial public
offering of its Common Stock (the "Initial Public Offering") the fair market
value per share shall be the product of (i) the per share offering price to the
public of the Initial Public Offering if the exercise occurs upon the closing of
the Company's Initial Public Offering or, if later, the closing price of the
Company's Common Stock on the date of exercise, and (ii) the number of shares of
Common Stock into which each share of Warrant Stock is convertible at the time
of such exercise.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company covenants
and agrees that all shares of Warrant Stock which may be issued upon the
exercise of the rights represented by this Warrant (and shares of its Common
Stock for issuance on conversion of such Warrant Stock) will, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any shareholder and free of all taxes, liens and charges
with respect to the issue thereof. The Company further covenants and agrees
that, during the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and reserved, for
the purpose of issue or transfer upon exercise of the subscription rights
evidenced by this Warrant, a sufficient number of shares of authorized but
unissued Warrant Stock and Common Stock, or other securities and property, when
and as required to provide for the exercise of the rights represented by this
Warrant. The Company will take all such action as may be necessary to assure
that such shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any domestic securities
exchange upon which the Warrant Stock or Common Stock may be listed; provided,
however, that the Company shall not be required to effect a registration under
Federal or State securities laws with respect to such exercise. The Company will
not take any action which would result in any adjustment of the Stock Purchase
Price (as set forth in Section 3 hereof) (i) if the total number of shares of
Warrant Stock issuable after such action upon exercise of all outstanding
warrants, together with all shares of Warrant Stock then outstanding and all
shares of Warrant Stock then issuable upon exercise of all options and upon the
conversion of all convertible securities then outstanding, would exceed the
total number of shares of Warrant Stock then authorized by the Company's
Certificate of Incorporation, or (ii) if the total number of shares of Common
Stock issuable after such action upon the conversion of all such shares of
Warrant Stock, together with all shares of Common Stock then issuable upon
exercise of all options and upon the conversion of all such shares of Warrant
Stock, together with
3.
<PAGE> 30
all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and upon the conversion of all
convertible securities then outstanding would exceed the total number of shares
of Common Stock then authorized by the Company's Certificate of Incorporation.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND NUMBER OF SHARES. The Stock
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 3. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be entitled to
purchase (subject to the other provisions hereof), at the Stock Purchase Price
resulting from such adjustment, the number of shares obtained by multiplying
the Stock Purchase Price in effect immediately prior to such adjustment by the
number of shares purchasable pursuant hereto immediately prior to such
adjustment, and dividing the product thereof by the Stock Purchase Price
resulting from such adjustment.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company shall
at any time subdivide its outstanding shares of Warrant Stock into a greater
number of shares, the Stock Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Warrant Stock of the Company shall be combined into a
smaller number of shares, the Stock Purchase Price in effect immediately prior
to such combination shall be proportionately increased.
3.2 DIVIDENDS IN WARRANT STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the Holders of Warrant
Stock (or any shares of stock or other securities at the time receivable upon
the exercise of this warrant) shall have received or become entitled to receive,
without payment therefor,
(a) Warrant Stock or any shares of stock or other securities
which are at any time directly or indirectly convertible into or exchangeable
for Warrant Stock, or any rights or options to subscribe for, purchase or
otherwise acquire any of the foregoing by way of dividend or other distribution,
(b) any cash paid or payable otherwise than as a cash dividend,
or
(c) Warrant Stock or additional stock or other securities or
property (including cash) by way of spinoff, split-up, reclassification,
combination of shares of similar corporate rearrangement, (other than shares of
Warrant Stock issued as a stock split or adjustments in respect of which shall
be covered by the terms of Section 3.1 above), then and in each such case, the
Holder hereof shall, upon the exercise of this Warrant, be entitled to receive,
in addition to the number of shares of Warrant Stock receivable thereupon, and
without payment of any additional consideration therefor, the amount of stock
and other securities and property (including cash in the cases referred to in
clause (b) above and this clause (c)) which such Holder would hold on the date
of such exercise had he been the holder of record of such Warrant Stock as of
the date on which holders of Warrant Stock received or became entitled to
receive such shares of all other additional stock and other securities and
property.
4.
<PAGE> 31
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE. If
any recapitalization, reclassification or reorganization of the capital stock of
the Company, or any consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets or other
transaction shall be effected in such a way that holders of Warrant Stock shall
be entitled to receive stock, securities, or other assets or property (an
"Organic Change"), then, as a condition of such Organic Change, lawful and
adequate provisions shall be made by the Company whereby the Holder hereof shall
thereafter (subject to the other provisions hereof) have the right to purchase
and receive (in lieu of the shares of the Warrant Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby) such shares of stock, securities or other assets or
property as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Warrant Stock equal to the number of shares of
such stock immediately theretofore purchasable and receivable upon the exercise
of the rights represented hereby; provided, however, that in the event the value
of the stock, securities or other assets or property (determined in good faith
by the Board of Directors of the Company) issuable or payable with respect to
one share of the Warrant Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby is
in excess of the Stock Purchase Price hereof effective at the time of a merger
and securities received in such reorganization, if any, are publicly traded,
then this Warrant shall expire unless exercised prior to such Organic Change. In
the event of any Organic Change, appropriate provision shall be made by the
Company with respect to the rights and interests of the Holder of this Warrant
to the end that the provisions hereof (including, without limitation, provisions
for adjustments of the Stock Purchase Price and of the number of shares
purchasable and receivable upon the exercise of this Warrant) shall thereafter
be applicable, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof. The Company will not effect any
such consolidation, merger or sale unless, prior to the consummation thereof,
the successor corporation (if other than the Company) resulting from such
consolidation or the corporation purchasing such assets shall assume by written
instrument reasonably satisfactory in form and substance to the Holders of a
majority of the warrants to purchase Warrant Stock then outstanding, executed
and mailed or delivered to the registered Holder hereof at the last address of
such Holder appearing on the books of the Company, the obligation to deliver to
such Holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such Holder may be entitled to purchase.
3.4 CONVERSION OF WARRANT STOCK. In case all or any portion of the
authorized and outstanding shares of Warrant Stock of the Company are redeemed
or converted or reclassified into other securities or property pursuant to the
Company's Certificate of Incorporation or otherwise, or the Warrant Stock
otherwise ceases to exist, then, in such case, the Holder of this Warrant, upon
exercise hereof at any time after the date on which the Warrant Stock is so
redeemed or converted, reclassified or ceases to exist (the "Triggering Date"),
shall receive, in lieu of the number of shares of Warrant Stock that would have
been issuable upon such exercise immediately prior to the Triggering Date, the
shares of Common Stock of the Company that would have been received if this
Warrant had been exercised in full and the Warrant Stock received thereupon had
been simultaneously converted immediately prior to the Triggering Date, all
subject to further adjustment as provided in this Warrant. Additionally, the
Stock Purchase Price shall be immediately adjusted to equal the quotient
obtained by dividing (x)
5.
<PAGE> 32
the aggregate Stock Purchase Price of the maximum number of shares of Warrant
Stock for which this Warrant was exercisable immediately prior to the Triggering
Date by (y) the number of shares of Common Stock of the Company for which this
Warrant is exercisable immediately after the Triggering Date, all subject to
further adjustment as provided herein.
3.5 CERTAIN EVENTS. If any change in the outstanding Warrant Stock of
the Company or any other event occurs as to which the other provisions of this
Section 3 are not strictly applicable or if strictly applicable would not fairly
protect the purchase rights of the Holder of the Warrant in accordance with such
provisions, then the Board of Directors of the Company shall make an adjustment
in the number and class of shares available under the Warrant, the Stock
Purchase Price or the application of such provisions, so as to protect such
purchase rights as aforesaid. The adjustment shall be such as will give the
Holder of the Warrant upon exercise for the same aggregate Stock Purchase Price
the total number, class and kind of shares as he would have owned had the
Warrant been exercised prior to the event and had he continued to hold such
shares until after the event requiring adjustment.
3.6 NOTICES OF CHANGES. Immediately upon any adjustment in the number
or class of shares subject to this Warrant and of the Stock Purchase Price, the
Company shall give written notice thereof to the Holder, setting forth in
reasonable detail and certifying the calculation of such adjustment.
4. ISSUE TAX. The issuance of certificates for shares of Warrant Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax (other than any applicable income taxes) in
respect thereof; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the then
Holder of the Warrant being exercised.
5. CLOSING OF BOOKS. The Company will at no time close its transfer books
against the transfer of any warrant or of any shares of Warrant Stock issued or
issuable upon the exercise of any warrant in any manner which interferes with
the timely exercise of this Warrant.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY. Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a shareholder of
the Company or any other matters or any rights whatsoever as a shareholder of
the Company. No dividends or interest shall be payable or accrued in respect of
this Warrant or the interest represented hereby or the shares purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised. No provisions hereof, in the absence of affirmative action by the
holder to purchase shares of Warrant Stock, and no mere enumeration herein of
the rights or privileges of the holder hereof, shall give rise to any liability
of such Holder for the Stock Purchase Price or as a shareholder of the Company,
whether such liability is asserted by the Company or by its creditors.
7. TRANSFER. Subject to compliance with applicable federal and state
securities laws, this Warrant and all rights hereunder are transferable, in
whole or in part, without charge to the holder hereof (except for transfer
taxes), upon surrender of this Warrant properly endorsed.
6.
<PAGE> 33
Each taker and holder of this Warrant, by taking or holding the same, consents
and agrees that this Warrant, when endorsed in blank, shall be deemed
negotiable, and that the holder hereof, when this Warrant shall have been so
endorsed, may be treated by the Company, at the Company's option, and all other
persons dealing with this Warrant as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented by this Warrant,
or to the transfer hereof on the books of the Company any notice to the
contrary notwithstanding; but until such transfer on such books, the Company may
treat the registered owner hereof as the owner for all purposes.
The Holder, by acceptance hereof, agrees that, absent an effective registration
statement filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the "1933 Act"), covering the disposition or sale of
this Warrant or the Warrant Stock, and registration or qualification under
applicable state securities laws, such Holder will not sell, transfer, pledge or
hypothecate any or all such Warrants or Warrant Stock, unless either (i) the
Company has received an opinion of counsel, in form and substance reasonably
satisfactory to the Company, to the effect that such registration is not
required in connection with such disposition or (ii) the sale of such securities
is made pursuant to Rule 144 of the 1993 Act. Notwithstanding the foregoing, the
Company hereby confirms its intent, after delivery of the opinion described
above, to consent to the sale, transfer, pledge or hypothecation of this Warrant
to holders of membership interest in the Holder.
The Holder, by acceptance hereof, agrees that, it will not transfer or dispose
of any Warrant Stock or Common Stock (or other securities) that it may acquire
upon exercise of rights under this Warrant for a period specified by the
representatives of the underwriters of Common Stock (or other securities) of the
Company not to exceed one hundred eighty (180) days following the effective date
of the Company's Initial Public Offering.
8. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE OF WARRANT. The rights and
obligations of the Company, of the holder of this Warrant and of the holder of
shares of Warrant Stock, shall survive the exercise of this Warrant.
9. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
10. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the holder hereof or the Company shall be delivered
or shall be sent by certified mail, postage prepaid, to each such holder at its
address as shown on the books of the Company or to the Company at the address
indicated therefor in the first paragraph of this Warrant or such other address
as either may from time to time provide to the other.
11. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets. All of the obligations of the
Company relating to the Warrant Stock issuable upon the exercise of this Warrant
shall survive the exercise and
7.
<PAGE> 34
termination of this Warrant. All of the covenants and agreements of the Company
shall inure to the benefit of the successors and assigns of the holder hereof.
12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description headings of
the several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of California.
13. LOST WARRANTS. The Company represents and warrants to the Holder
hereof that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation upon
surrender and cancellation of such Warrant, the Company, at its expense, will
make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
14. FRACTIONAL SHARES. No fractional shares shall be issued upon exercise
of this Warrant. The Company shall, in lieu of issuing any fractional share, pay
the holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the then effective Stock Purchase Price.
15. INVESTORS' RIGHTS AGREEMENT. Promptly following the date hereof, the
Company shall seek the necessary stockholder approval to amend and restate the
Amended and Restated Investors' Rights Agreement dated December 23, 1998 (the
"Investors' Rights Agreement") to include this Warrant (and any other Warrants
issued to Holder) as a Warrant (as such term is defined in the Investors' Rights
Agreement) (such amendment and restatement being referred to hereinafter as the
"Amended and Restated Investors' Rights Agreement"). Promptly following such
stockholder approval, each of the Company and the Holder shall execute and
deliver to the other an Amended and Restated Investors' Rights Agreement.
8.
<PAGE> 35
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its officers, thereunto duly authorized this 20th day of March, 1999.
QUOKKA SPORTS, INC.
a Delaware corporation
By: /s/ R. H. WILLIAMS
---------------------------
Name: R. H. Williams
-------------------------
Title: Chairman
------------------------
ATTEST:
/s/ [Signature Illegible]
--------------------------------
Secretary
<PAGE> 36
EXHIBIT A
SUBSCRIPTION FORM
Date:__________, 19__
Quokka Sports, Inc.
525 Brannan Street
Ground Floor
San Francisco, CA 94107
Attn: President
Ladies and Gentlemen:
[ ] The undersigned hereby elects to exercise Warrant No. PWC-8 (the "Warrant")
issued to it by Quokka Sports, Inc. (the "Company") and dated ___________,
1999 and to purchase thereunder _____________ shares of the Warrant Stock
of the Company (the "Shares") at a purchase price of _____________ per
Share or an aggregate purchase price of ___________________________ Dollars
($________) (the "Purchase Price").
[ ] The undersigned hereby elects to convert __________________________ percent
(______%) of the value of the Warrant pursuant to the provisions of Section
1.3 of the Warrant.
Pursuant to the terms of the Warrant the undersigned has delivered the
Purchase Price herewith in full in cash or by certified check or wire transfer.
Very truly yours,
CHAMPIONSHIP AUTO RACING TEAMS, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
<PAGE> 37
NO. PWC-9
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE 16,234 SHARES
OF SERIES C PREFERRED STOCK OF
QUOKKA SPORTS, INC.
(VOID AFTER MARCH 19, 2004)
This certifies that CHAMPIONSHIP AUTO RACING TEAMS, INC. or its assigns (the
"Holder"), for value received, is entitled to purchase from QUOKKA SPORTS, INC.,
a Delaware corporation (the "Company") having a place of business at 525 Brannan
Street, San Francisco, California, a maximum of Sixteen Thousand Two Hundred
Thirty Four (16,234) fully paid and nonassessable shares of Warrant Stock (as
defined below) for cash at such time(s) as set forth below and at a purchase
price of $15.40 per share (the "Stock Purchase Price") up to and including 5:00
p.m. (Pacific time) on the date five (5) years from the date of this Warrant,
such date being referred to herein as the "Expiration Date," upon surrender to
the Company at its principal office (or at such other location as the Company
may advise the Holder in writing) of this Warrant properly endorsed with the
Form of Subscription attached hereto duly filled in and signed and, if
applicable, upon payment in cash or by check of the aggregate Stock Purchase
Price for the number of shares for which this Warrant is being exercised
determined in accordance with the provisions hereof. The Stock Purchase Price
and the number of shares purchasable hereunder are subject to adjustment as
provided in Section 3 of this Warrant. The term "Warrant Stock" refers to the
Company's Series C Preferred Stock and any other securities at any time
receivable or issuable upon exercise of this Warrant.
Notwithstanding anything contained herein to the contrary, in the event the
Agreement (the "Agreement"), dated effective as of January 1, 1999, between the
Holder and CART DIGITAL MEDIA ENTERPRISES, LLC ("CDME"), or any other agreement
entered into among the Holder, the Company and CDME (or any combination
thereof) pursuant to the Agreement, is terminated, either by the Company or
CDME as a result of uncured material breach by Holder or by Holder for other
than an uncured material breach by the Company or CDME, such an event (the
"Termination Event") will cause this Warrant to become immediately void and the
date of such Termination Event (the "Termination Date") will be deemed the
"Expiration Date" for purposes hereof. Notwithstanding anything contained
herein to the contrary however, upon a Termination Event, the Holder will have
ninety (90) days from the Termination Date to exercise this Warrant to the
extent of the Vested Portion as of the Termination Date (as determined under
Section 1.1 below).
<PAGE> 38
This Warrant is subject to the following terms and conditions:
1. VESTING; EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
1.1 VESTING. The portion of this Warrant that is exercisable at any
given time is determined by the chart below and is referred to as the "Vested
Portion."
<TABLE>
<CAPTION>
<S> <C> <C>
Vesting Date:
Vested Portion Date Shares are First Exercisable Stock Purchase Price
-------------- --------------------------------- --------------------
16,234 December 31, 2000 $15.40
</TABLE>
1.2 EXERCISE. The Vested Portion of this Warrant is exercisable at
the option of the Holder, at any time or from time to time up to the Expiration
Date for all or any part of the shares of Warrant Stock (but not for a fraction
of a share) which may be purchased hereunder. The Company agrees that the shares
of Warrant Stock purchased under this Warrant shall be and are deemed to be
issued to the Holder hereof as the record owner of such shares as of the close
of business on the date on which this Warrant shall have been surrendered,
properly endorsed, the completed, executed Form of Subscription delivered and
payment made for such shares. Certificates for the shares of Warrant Stock so
purchased, together with any other securities or property to which the Holder
hereof is entitled upon such exercise, shall be delivered to the Holder hereof
by the Company at the Company's expense within a reasonable time after the
rights represented by this Warrant have been so exercised. In case of a purchase
of less than all the shares which may be purchased under this Warrant, the
Company shall cancel this Warrant and execute and deliver a new Warrant or
Warrants of like tenor for the balance of the shares purchasable under the
Warrant surrendered upon such purchase to the Holder hereof within a reasonable
time. Each stock certificate so delivered shall be in such denominations of
Warrant Stock as may be requested by the Holder hereof and shall be registered
in the name of such Holder.
1.3 NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Warrant Stock
is greater than the Stock Purchase Price (at the date of calculation as set
forth below), in lieu of exercising this Warrant for cash, the Holder may elect
to receive shares equal to the value (as determined below) of this Warrant (or
the portion thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with the properly endorsed Form of
Subscription and notice of such election in which event the company shall issue
to the Holder a number of shares of Warrant Stock computed using the following
formula;
X=Y(A-B)
------
A
Where X= the number of shares of Warrant Stock to be issued to
the Holder
2.
<PAGE> 39
Y= the number of shares of Warrant Stock purchasable under
the Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being
canceled (at the date of such calculation)
A= the fair market value of one share of the Company's
Warrant Stock (at the date of such calculation)
B= Stock Purchase Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value of one share of
Warrant Stock shall be determined by the Company's Board of Directors in good
faith; provided, however, that in the event the Company makes an initial public
offering of its Common Stock (the "Initial Public Offering") the fair market
value per share shall be the product of (i) the per share offering price to the
public of the Initial Public Offering if the exercise occurs upon the closing
of the Company's Initial Public Offering or, if later, the closing price of the
Company's Common Stock on the date of exercise, and (ii) the number of shares
of Common Stock into which each share of Warrant Stock is convertible at the
time of such exercise.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company covenants
and agrees that all shares of Warrant Stock which may be issued upon the
exercise of the rights represented by this Warrant (and shares of its Common
Stock for issuance on conversion of such Warrant Stock) will, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any shareholder and free of all taxes, liens and charges
with respect to the issue thereof. The Company further covenants and agrees
that, during the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and reserved, for
the purpose of issue or transfer upon exercise of the subscription rights
evidenced by this Warrant, a sufficient number of shares of authorized but
unissued Warrant Stock and Common Stock, or other securities and property, when
and as required to provide for the exercise of the rights represented by this
Warrant. The Company will take all such action as may be necessary to assure
that such shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any domestic securities
exchange upon which the Warrant Stock or Common Stock may be listed; provided,
however, that the Company shall not be required to effect a registration under
Federal or State securities laws with respect to such exercise. The Company will
not take any action which would result in any adjustment of the Stock Purchase
Price (as set forth in Section 3 hereof) (i) if the total number of shares of
Warrant Stock issuable after such action upon exercise of all outstanding
warrants, together with all shares of Warrant Stock then outstanding and all
shares of Warrant Stock then issuable upon exercise of all options and upon the
conversion of all convertible securities then outstanding, would exceed the
total number of shares of Warrant Stock then authorized by the Company's
Certificate of Incorporation, or (ii) if the total number of shares of Common
Stock issuable after such action upon the conversion of all such shares of
Warrant Stock, together with all shares of Common Stock then issuable upon
exercise of all options and upon the conversion of all such shares of Warrant
Stock, together with
3.
<PAGE> 40
all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and upon the conversion of all
convertible securities then outstanding would exceed the total number of shares
of Common Stock then authorized by the Company's Certificate of Incorporation.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND NUMBER OF SHARES. The Stock
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 3. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be entitled to
purchase (subject to the other provisions hereof), at the Stock Purchase Price
resulting from such adjustment, the number of shares obtained by multiplying
the Stock Purchase Price in effect immediately prior to such adjustment by the
number of shares purchasable pursuant hereto immediately prior to such
adjustment, and dividing the product thereof by the Stock Purchase Price
resulting from such adjustment.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company shall
at any time subdivide its outstanding shares of Warrant Stock into a greater
number of shares, the Stock Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Warrant Stock of the Company shall be combined into a
smaller number of shares, the Stock Purchase Price in effect immediately prior
to such combination shall be proportionately increased.
3.2 DIVIDENDS IN WARRANT STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the Holders of Warrant
Stock (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received or become entitled to
receive, without payment therefor.
(a) Warrant Stock or any shares of stock or other securities
which are at any time directly or indirectly convertible into or exchangeable
for Warrant Stock, or any rights or options to subscribe for, purchase or
otherwise acquire any of the foregoing by way of dividend or other distribution,
(b) any cash paid or payable otherwise than as a cash dividend,
or
(c) Warrant Stock or additional stock or other securities or
property (including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement, (other than shares of
Warrant Stock issued as a stock split or adjustments in respect of which shall
be covered by the terms of Section 3.1 above), then and in each such case, the
Holder hereof shall, upon the exercise of this Warrant, be entitled to receive,
in addition to the number of shares of Warrant Stock receivable thereupon, and
without payment of any additional consideration therefor, the amount of stock
and other securities and property (including cash in the cases referred to in
clause (b) above and this clause (c)) which such Holder would hold on the date
of such exercise had he been the holder of record of such Warrant Stock as of
the date on which holders of Warrant Stock received or became entitled to
receive such shares or all other additional stock and other securities and
property.
4.
<PAGE> 41
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any recapitalization, reclassification or reorganization of the
capital stock of the Company, or any consolidation or merger of the Company
with another corporation, or the sale of all or substantially all of its assets
or other transaction shall be effected in such a way that holders of Warrant
Stock shall be entitled to receive stock, securities, or other assets or
property (an "Organic Change"), then, as a condition of such Organic Change,
lawful and adequate provisions shall be made by the Company whereby the Holder
hereof shall thereafter (subject to the other provisions hereof) have the right
to purchase and receive (in lieu of the shares of the Warrant Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented hereby) such shares of stock, securities or other assets
or property as may be issued or payable with respect to or in exchange for a
number of outstanding shares of such Warrant Stock equal to the number of
shares of such stock immediately theretofore purchasable and receivable upon
the exercise of the rights represented hereby; provided, however, that in the
event the value of the stock, securities or other assets or property
(determined in good faith by the Board of Directors of the Company) issuable
or payable with respect to one share of the Warrant Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby is in excess of the Stock Purchase Price hereof
effective at the time of a merger and securities received in such
reorganization, if any, are publicly traded, then this Warrant shall expire
unless exercised prior to such Organic Change. In the event of any Organic
Change, appropriate provision shall be made by the Company with respect to the
rights and interests of the Holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for adjustments of
the Stock Purchase Price and of the number of shares purchasable and receivable
upon the exercise of this Warrant) shall thereafter be applicable, in relation
to any shares of stock, securities or assets thereafter deliverable upon the
exercise hereof. The Company will not effect any such consolidation, merger or
sale unless, prior to the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or the corporation
purchasing such assets shall assume by written instrument reasonably
satisfactory in form and substance to the Holders of a majority of the warrants
to purchase Warrant Stock then outstanding, executed and mailed or delivered to
the registered Holder hereof at the last address of such Holder appearing on
the books of the Company, the obligation to deliver to such Holder such shares
of stock, securities or assets as, in accordance with the foregoing provisions,
such Holder may be entitled to purchase.
3.4 CONVERSION OF WARRANT STOCK. In case all or any portion of the
authorized and outstanding shares of Warrant Stock of the Company are redeemed
or converted or reclassified into other securities or property pursuant to the
Company's Certificate of Incorporation or otherwise, or the Warrant Stock
otherwise ceases to exist, then, in such case, the Holder of this Warrant, upon
exercise hereof at any time after the date on which the Warrant Stock is so
redeemed or converted, reclassified or ceases to exist (the "Triggering Date"),
shall receive, in lieu of the number of shares of Warrant Stock that would have
been issuable upon such exercise immediately prior to the Triggering Date, the
shares of Common Stock of the Company that would have been received if this
Warrant had been exercised in full and the Warrant Stock received thereupon had
been simultaneously converted immediately prior to the Triggering Date, all
subject to further adjustment as provided in this Warrant. Additionally, the
Stock Purchase Price shall be immediately adjusted to equal the quotient
obtained by dividing (x)
5.
<PAGE> 42
the aggregate Stock Purchase Price of the maximum number of shares of Warrant
Stock for which this Warrant was exercisable immediately prior to the
Triggering Date by (y) the number of shares of Common Stock of the Company for
which this Warrant is exercisable immediately after the Triggering Date, all
subject to further adjustments as provided herein.
3.5 CERTAIN EVENTS. If any change in the outstanding Warrant Stock
of the Company or any other event occurs as to which the other provisions of
this Section 3 are not strictly applicable or if strictly applicable would not
fairly protect the purchase rights of the Holder of the Warrant in accordance
with such provisions, then the Board of Directors of the Company shall make an
adjustment in the number and class of shares available under the Warrant, the
Stock Purchase Price or the application of such provisions, so as to protect
such purchase rights as aforesaid. The adjustment shall be such as will give
the Holder of the Warrant upon exercise for the same aggregate Stock Purchase
Price the total number, class and kind of shares as he would have owned had the
Warrant been exercised prior to the event and had he continued to hold such
shares until after the event requiring adjustment.
3.6 NOTICES OF CHANGE. Immediately upon any adjustment in the
number or class of shares subject to this Warrant and of the Stock Purchase
Price, the Company shall give written notice thereof to the Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
4. ISSUE TAX. The issuance of certificates for shares of Warrant Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax (other than any applicable income taxes) in
respect thereof; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the then
Holder of the Warrant being exercised.
5. CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of any warrant or of any shares of Warrant Stock
issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY. Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to receive notice as a shareholder of the Company
or any other matters or any rights whatsoever as a shareholder of the Company.
No dividends or interest shall be payable or accrued in respect of this Warrant
or the interest represented hereby or the shares purchasable hereunder until,
and only to the extent that, this Warrant shall have been exercised. No
provisions hereof, in the absence of affirmative action by the holder to
purchase shares of Warrant Stock, and no mere enumeration herein of the rights
or privileges of the holder hereof, shall give rise to any liability of such
Holder for the Stock Purchase Price or as a shareholder of the Company, whether
such liability is asserted by the Company or by its creditors.
7. TRANSFER. Subject to compliance with applicable federal and state
securities laws, this Warrant and all rights hereunder are transferable, in
whole or in part, without charge to the holder hereof (except for transfer
taxes), upon surrender of this Warrant properly endorsed.
6.
<PAGE> 43
Each taker and holder of this Warrant, by taking or holding the same, consents
and agrees that this Warrant, when endorsed in blank, shall be deemed
negotiable, and that the holder hereof, when this Warrant shall have been so
endorsed, may be treated by the Company, at the Company's option, and all other
persons dealing with this Warrant as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented by this Warrant,
or to the transfer hereof on the books of the Company any notice to the contrary
notwithstanding; but until such transfer on such books, the Company may treat
the registered owner hereof as the owner for all purposes.
The Holder, by acceptance hereof, agrees that, absent an effective registration
statement filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the "1993 Act"), covering the disposition or sale of
this Warrant or the Warrant Stock, and registration or qualification under
applicable state securities laws, such Holder will not sell, transfer, pledge or
hypothecate any or all such Warrants or Warrant Stock, unless either (i) the
Company has received an opinion of counsel, in form and substance reasonably
satisfactory to the Company, to the effect that such registration is not
required in connection with such disposition or (ii) the sale of such securities
is made pursuant to Rule 144 of the 1933 Act. Notwithstanding the foregoing, the
Company hereby confirms its intent, after delivery of the opinion described
above, to consent to the sale, transfer, pledge or hypothecation of this Warrant
to holders of membership interests in the Holder.
The Holder, by acceptance hereof, agrees that, it will not transfer or dispose
of any Warrant Stock or Common Stock (or other securities) that it may acquire
upon exercise of rights under this Warrant for a period specified by the
representatives of the underwriters of Common Stock (or other securities) of
the Company not to exceed one hundred eighty (180) days following the effective
date of the Company's Initial Public Offering.
8. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE OF WARRANT. The rights and
obligations of the Company, of the holder of this Warrant and of the holder of
shares of Warrant Stock, shall survive the exercise of this Warrant.
9. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
10. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the holder hereof or the Company shall be delivered
or shall be sent by certified mail, postage prepaid, to each such holder at its
address as shown on the books of the Company or to the Company at the address
indicated therefor in the first paragraph of this Warrant or such other address
as either may from time to time provide to the other.
11. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets. All of the obligations of the
Company relating to the Warrant Stock issuable upon the exercise of this
Warrant shall survive the exercise and
7.
<PAGE> 44
termination of this Warrant. All of the covenants and agreements of the Company
shall inure to the benefit of the successors and assigns of the holder hereof.
12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description headings of
the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of California.
13. LOST WARRANTS. The Company represents and warrants to the Holder
hereof that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation upon
surrender and cancellation of such Warrant, the Company, at its expense, will
make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
14. FRACTIONAL SHARES. No fractional shares shall be issued upon exercise
of this Warrant. The Company shall, in lieu of issuing any fractional share,
pay the holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the then effective Stock Purchase Price.
15. INVESTORS' RIGHTS AGREEMENT. Promptly following the date hereof, the
Company shall seek the necessary stockholder approval to amend and restate the
Amended and Restated Investors; Rights Agreement dated December 23, 1998 (the
"Investors' Rights Agreement") to include this Warrant (and any other Warrants
issued to Holder) as a Warrant (as such term is defined in the Investors'
Rights Agreement) (such amendment and restatement being referred to hereinafter
as the "Amended and Restated Investors' Rights Agreement"). Promptly following
such stockholder approval, each of the Company and the Holder shall execute and
deliver to the other an Amended and Restated Investors' Rights Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
8.
<PAGE> 45
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officers, thereunto duly authorized this 20th day of March,
1999.
QUOKKA SPORTS, INC.
a Delaware corporation
By: /s/ R. H. WILLIAMS
--------------------------------
Name: R. H. Williams
--------------------------------
Title: Chairman
--------------------------------
ATTEST:
/s/ [Signature Illegible]
---------------------------
Secretary
<PAGE> 46
EXHIBIT A
SUBSCRIPTION FORM
Date: __________, 19__
Quokka Sports, Inc.
525 Brannan Street
Ground Floor
San Francisco, CA 94107
Attn: President
Ladies and Gentlemen:
[ ] The undersigned hereby elects to exercise Warrant No. PWC-9 (the "Warrant")
issued to it by Quokka Sports, Inc. (the "Company") and dated __________,
1999 and to purchase thereunder ________________ shares of the Warrant
Stock of the Company (the "Shares") at a purchase price of
_____________________ per Share or an aggregate purchase price of
__________ Dollars ($ __________) (the "Purchase Price").
[ ] The undersigned hereby elects to convert ____________ percent (____%) of
the value of the Warrant pursuant to the provisions of Section 1.3 of the
Warrant.
Pursuant to the terms of the Warrant the undersigned has delivered the Purchase
Price herewith in full in cash or by certified check or wire transfer.
Very truly yours,
CHAMPIONSHIP AUTO RACING TEAMS, INC.
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
<PAGE> 47
No. PWC-10
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
WARRANT TO PURCHASE 17,393 SHARES
OF SERIES C PREFERRED STOCK OF
QUOKKA SPORTS, INC.
(Void after March 19, 2004)
This certifies that CHAMPIONSHIP AUTO RACING TEAMS, INC. or its assigns (the
"Holder"), for value received, is entitled to purchase from QUOKKA SPORTS, INC.,
a Delaware corporation (the "Company") having a place of business at 525 Brannan
Street, San Francisco, California, a maximum of Seventeen Thousand Three Hundred
Ninety Three (17,393) fully paid and nonassessable shares of Warrant Stock (as
defined below) for cash at such time(s) as set forth below and a purchase price
of $21.56 per share (the "Stock Purchase Price") up to and including 5:00 p.m.
(Pacific time) on the date five (5) years from the date of this Warrant, such
date being referred to herein as the "Expiration Date," upon surrender to the
Company at its principal office (or at such other location as the Company may
advise the Holder in writing) of this Warrant properly endorsed with the Form of
Subscription attached hereto duly filled in and signed and, if applicable, upon
payment in cash or by check of the aggregate Stock Purchase Price for the number
of shares for which this Warrant is being exercised determined in accordance
with the provisions hereof. The Stock Purchase Price and the number of shares
purchasable hereunder are subject to adjustment as provided in Section 3 of this
Warrant. The term "Warrant Stock" refers to the Company's Series C Preferred
Stock and any other securities at any time receivable or issuable upon exercise
of this Warrant.
Notwithstanding anything contained herein to the contrary, in the event the
Agreement (the "Agreement"), dated effective as of January 1, 1999, between the
Holder and CART DIGITAL MEDIA ENTERPRISES, LLC ("CDME"), or any other agreement
entered into among the Holder, the Company and CDME (or any combination thereof)
pursuant to the Agreement, is terminated, either by the Company or CDME as a
result of uncured material breach by Holder or by Holder for other than an
uncured material breach by the Company or CDME, such an event (the "Termination
Event") will cause this Warrant to become immediately void and the date of such
Termination Event (the "Termination Date") will be deemed the "Expiration Date"
for purposes hereof. Notwithstanding anything contained herein to the contrary
however, upon a Termination Event, the Holder will have ninety (90) days from
the Termination Date to exercise this Warrant to the extent of the Vested
Portion as of the Termination Date (as determined under Section 1.1 below).
<PAGE> 48
This Warrant is subject to the following terms and conditions:
1. VESTING; EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
1.1 VESTING. The portion of this Warrant that is exercisable at any
given time is determined by the chart below and is referred to as the "Vested
Portion."
<TABLE>
<CAPTION>
VESTING DATE:
DATE SHARES AND STOCK
VESTED PORTION FIRST EXERCISABLE PURCHASE PRICE
-------------- ----------------- --------------
<S> <C> <C>
17,393 December 31, 2001 $21.56
</TABLE>
1.2 EXERCISE. The Vested Portion of this Warrant is exercisable at
the option of the Holder, at any time or from time to time up to the Expiration
Date for all or any part of the shares of Warrant Stock (but not for a fraction
of a share) which may be purchased hereunder. The company agrees that the
shares of Warrant Stock purchased under this Warrant shall be and are deemed to
be issued to the Holder hereof as the record owner of such shares as of the
close of business on the date on which this Warrant shall have been
surrendered, properly endorsed, the completed, executed Form of Subscription
delivered and payment made for such shares. Certificates for the shares of
Warrant Stock so purchased, together with any other securities or property to
which the Holder hereof is entitled upon such exercise, shall be delivered to
the Holder hereof by the Company at the Company's expense within a reasonable
time after the rights represented by this Warrant have been so exercised. In
case of a purchase of less than all the shares which may be purchased under
this Warrant, the Company shall cancel this Warrant and execute and deliver a
new Warrant or Warrants of like tenor for the balance of the shares purchasable
under the Warrant surrendered upon such purchase to the Holder hereof within a
reasonable time. Each stock certificate so delivered shall be in such
denominations of Warrant Stock as may be requested by the Holder hereof and
shall be registered in the name of such Holder.
1.3 NET ISSUE EXERCISE. Notwithstanding any provisions herein to
the contrary, if the fair market value of one share of the Company's Warrant
Stock is greater than the Stock Purchase Price (at the date of calculation as
set forth below), in lieu of exercising this Warrant for cash, the Holder may
elect to receive shares equal to the value (as determined below) of this Warrant
(or the portion thereof being canceled) by surrender of this Warrant at the
principal office of the company together with the properly endorsed Form of
Subscription and notice of such election in which event the Company shall issue
to the Holder a number of shares of Warrant Stock computed using the following
formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Warrant Stock to be issued to
the Holder
2.
<PAGE> 49
Y = the number of shares of Warrant Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the fair market value of one share of the
Company's Warrant Stock (at the date of such
calculation)
B = Stock Purchase Price (as adjusted to the date of
such calculation)
For purposed of the above calculation, fair market value of one share of
Warrant Stock shall be determined by the Company's Board of Directors in good
faith; provided, however, that in the event the Company makes an initial
public offering of its Common Stock (the "Initial Public Offering") the fair
market value per share shall be the product of (i) the per share offering price
to the public of the Initial Public Offering if the exercise occurs upon the
closing of the Company's Initial Public Offering or, if later, the closing
price of the Company's Common Stock on the date of exercise, and (ii) the
number of shares of Common Stock into which each share of Warrant Stock is
convertible at the time of such exercise.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company
covenants and agrees that all shares of Warrant Stock which may be issued upon
the exercise of the rights represented by this Warrant (and shares of its
Common Stock for issuance on conversion of such Warrant Stock) will, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable and
free from all preemptive rights of any shareholder and free of all taxes, liens
and charges with respect to the issue thereof. The Company further covenants
and agrees that, during the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issue or transfer upon exercise of the
subscription rights evidenced by this Warrant, a sufficient number of shares of
authorized but unissued Warrant Stock and Common Stock, or other securities and
property, when and as required to provide for the exercise of the rights
represented by this Warrant. The Company will take all such action as may be
necessary to assure that such shares may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of any
domestic securities exchange upon which the Warrant Stock or Common Stock may
be listed; provided, however, that the Company shall not be required to effect
a registration under Federal or State securities laws with respect to such
exercise. The Company will not take any action which would result in any
adjustment of the Stock Purchase Price (as set forth in Section 3 hereof) (i)
if the total number of shares of Warrant Stock issuable after such action upon
exercise of all outstanding warrants, together with all shares of Warrant Stock
then outstanding and all shares of Warrant Stock then issuable upon exercise of
all options and upon the conversion of all convertible securities then
outstanding, would exceed the total number of shares of Warrant Stock then
authorized by the Company's Certificate of Incorporation, or (ii) if the total
number of shares of Common Stock issuable after such action upon the conversion
of all such shares of Warrant Stock, together with all shares of Common Stock
then issuable upon exercise of all options and upon the conversion of all such
shares of Warrant Stock, together with
3.
<PAGE> 50
all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and upon the conversion of all convertible
securities then outstanding would exceed the total number of shares of Common
Stock then authorized by the Company's Certificate of Incorporation.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND NUMBER OF SHARES. The Stock
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 3. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be entitled to
purchase (subject to the other provisions hereof), at the Stock Purchase Price
resulting from such adjustment, the number of shares obtained by multiplying the
Stock Purchase Price in effect immediately prior to such adjustment by the
number of shares purchasable pursuant hereto immediately prior to such
adjustment, and dividing the product thereof by the Stock Purchase Price
resulting from such adjustment.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company shall
at any time subdivide its outstanding shares of Warrant Stock into a greater
number of shares, the Stock Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Warrant Stock of the Company shall be combined into a
smaller number of shares, the Stock Purchase Price in effect immediately prior
to such combination shall be proportionately increased.
3.2 DIVIDENDS IN WARRANT STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the Holders of Warrant
Stock (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received or become entitled to receive,
without payment therefor,
(a) Warrant Stock or any shares of stock or other securities
which are at any time directly or indirectly convertible into or exchangeable
for Warrant Stock, or any rights or options to subscribe for, purchase or
otherwise acquire any of the foregoing by way of dividend or other distribution,
(b) any cash paid or payable otherwise than as a cash dividend,
or
(c) Warrant Stock or additional stock or other securities or
property (including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement, (other than shares of
Warrant Stock issued as a stock split or adjustments in respect of which shall
be covered by the terms of Section 3.1 above), then and in each such case, the
Holder hereof shall, upon the exercise of this Warrant, be entitled to receive,
in addition to the number of shares of Warrant Stock receivable thereupon, and
without payment of any additional consideration therefor, the amount of stock
and other securities and property (including cash in the cases referred to in
clause (b) above and this clause (c)) which such Holder would hold on the date
of such exercise had he been the holder of record of such Warrant Stock as of
the date on which holders of Warrant Stock received or became entitled to
receive such shares or all other additional stock and other securities and
property.
4.
<PAGE> 51
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OF SALE.
If any recapitalization, reclassification or reorganization of the capital stock
of the Company, or any consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets or other
transaction shall be effected in such a way that holders of Warrant Stock shall
be entitled to receive stock, securities, or other assets or property (an
"Organic Change"), then, as a condition of such Organic Change, lawful and
adequate provisions shall be made by the Company whereby the Holder hereof
shall thereafter (subject to the other provisions hereof) have the right to
purchase and receive (in lieu of the shares of the Warrant Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby) such shares of stock, securities or other assets or
property as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Warrant Stock equal to the number of shares of
such stock immediately theretofore purchasable and receivable upon the exercise
of the rights represented hereby; provided, however, that in the event the value
of the stock, securities or other assets or property (determined in good faith
by the Board of Directors of the Company) issuable or payable with respect to
one share of the Warrant Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby is
in excess of the Stock Purchase Price hereof effective at the time of a merger
and securities received in such reorganization, if any, are publicly traded,
then this Warrant shall expire unless exercised prior to such Organic Change. In
the event of any Organic Change, appropriate provision shall be made by the
Company with respect to the rights and interests of the Holder of this Warrant
to the end that the provisions hereof (including, without limitation, provisions
for adjustments of the Stock Purchase Price and of the number of shares
purchasable and receivable upon the exercise of this Warrant) shall thereafter
be applicable, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof. The Company will not effect any
such consolidation, merger or sale unless, prior to the consummation thereof,
the successor corporation (if other than the Company) resulting from such
consolidation or the corporation purchasing such assets shall assume by written
instrument reasonably satisfactory in form and substance to the Holders of a
majority of the warrants to purchase Warrant Stock then outstanding, executed
and mailed or delivered to the registered Holder hereof at the last address of
such Holder appearing on the books of the Company, the obligation to deliver to
such Holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such Holder may be entitled to purchase.
3.4 CONVERSION OF WARRANT STOCK. In case all or any portion of the
authorized and outstanding shares of Warrant Stock of the Company are redeemed
or converted or reclassified into other securities or property pursuant to the
Company's Certificate of Incorporation or otherwise, or the Warrant Stock
otherwise ceases to exist, then, in such case, the Holder of this Warrant, upon
exercise hereof at any time after the date on which the Warrant Stock is so
redeemed or converted, reclassified or ceases to exist (the "Triggering Date"),
shall receive, in lieu of the number of shares of Warrant Stock that would have
been issuable upon such exercise immediately prior to the Triggering Date, the
shares of Common Stock of the Company that would have been received if this
Warrant had been exercised in full and the Warrant Stock received thereupon had
been simultaneously converted immediately prior to the Triggering Date, all
subject to further adjustment as provided in this Warrant. Additionally, the
Stock Purchase Price shall be immediately adjusted to equal the quotient
obtained by dividing (x)
5.
<PAGE> 52
the aggregate Stock Purchase Price of the maximum number of shares of Warrant
Stock for which this Warrant was exercisable immediately prior to the
Triggering Date by (y) the number of shares of Common Stock of the Company for
which this Warrant is exercisable immediately after the Triggering Date, all
subject to further adjustment as provided herein.
3.5 CERTAIN EVENTS. If any change in the outstanding Warrant Stock
of the Company or any other event occurs as to which the other provisions of
this Section 3 are not strictly applicable or if strictly applicable would not
fairly protect the purchase rights of the Holder of the Warrant in accordance
with such provisions, then the Board of Directors of the Company shall make an
adjustment in the number and class of shares available under the Warrant, the
Stock Purchase Price or the application of such provisions, so as to protect
such purchase rights as aforesaid. The adjustment shall be such as will give
the Holder of the Warrant upon exercise for the same aggregate Stock Purchase
Price the total number, class and kind of shares as he would have owned had the
Warrant been exercised prior to the event and had he continued to hold such
shares until after the event requiring adjustment.
3.6 NOTICES OF CHANGE. Immediately upon any adjustment in the
number or class of shares subject to this Warrant and of the Stock Purchase
Price, the Company shall give written notice thereof to the Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
4. ISSUE TAX. The issuance of certificates for shares of Warrant Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax (other than any applicable income taxes) in
respect thereof; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the then
Holder of the Warrant being exercised.
5. CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of any warrant or of any shares of Warrant Stock
issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
6. NO VOTING OR DIVIDEND RIGHTS, LIMITATION OF LIABILITY. Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a shareholder the
Company or any other matters or any rights whatsoever as a shareholder of the
Company. No dividends or interest shall be payable or accrued in respect of this
Warrant or the interest represented hereby or the shares purchasable hereunder
until, and only to the extent that, this Warrant shall have been exercised. No
provisions hereof, in the absence of affirmative action by the holder to
purchase shares of Warrant Stock, and no mere enumeration herein of the rights
or privileges of the holder hereof, shall give rise to any liability of such
Holder for the Stock Purchase Price or as a shareholder of the Company, whether
such liability is asserted by the Company or by its creditors.
7. TRANSFER. Subject to compliance with applicable federal and state
securities laws, this Warrant and all rights hereunder are transferable, in
whole or in part, without charge to the holder hereof (except for transfer
taxes), upon surrender of this Warrant properly endorsed.
6.
<PAGE> 53
Each taker and holder of this Warrant, by taking or holding the same, consents
and agrees that this Warrant, when endorsed in blank, shall be deemed
negotiable, and that the holder hereof, when this Warrant shall have been so
endorsed, may be treated by the Company, at the Company's option, and all other
persons dealing with this Warrant as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented by this Warrant,
or to the transfer hereof on the books of the Company any notice to the contrary
notwithstanding; but until such transfer on such books, the Company may treat
the registered owner hereof as the owner for all purposes.
The Holder, by acceptance hereof, agrees that, absent an effective registration
statement filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "1933 Act"), covering the disposition
or sale of this Warrant or the Warrant Stock, and registration or qualification
under applicable state securities laws, such Holder will not sell, transfer,
pledge or hypothecate any or all such Warrants or Warrant Stock, unless either
(i) the Company has received an opinion of counsel, in form and substance
reasonably satisfactory to the Company, to the effect that such registration is
not required in connection with such disposition or (ii) the sale of such
securities is made pursuant to Rule 144 of the 1933 Act. Notwithstanding the
foregoing, the Company hereby confirms its intent, after delivery of the
opinion described above, to consent to the sale, transfer, pledge or
hypothecation of this Warrant to holders of membership interests in the Holder.
The Holder, by acceptance hereof, agrees that, it will not transfer or dispose
of any Warrant Stock or Common Stock (or other securities) that it may acquire
upon exercise of rights under this Warrant for a period specified by the
representatives of the underwriters of Common Stock (or other securities) of
the Company not to exceed one hundred eighty (180) days following the effective
date of the Company's Initial Public Offering.
8. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE OF WARRANT. The rights and
obligations of the Company, of the holder of this Warrant and of the holder of
shares of Warrant Stock, shall survive the exercise of this Warrant.
9. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
10. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the holder hereof or the Company shall be delivered
or shall be sent by certified mail, postage prepaid, to each such holder at its
address as shown on the books of the Company or to the Company at the address
indicated therefor in the first paragraph of this Warrant or such other address
as either may from time to time provide to the other.
11. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets. All of the obligations of the
Company relating to the Warrant Stock issuable upon the exercise of this
Warrant shall survive the exercise and
7.
<PAGE> 54
termination of this Warrant. All of the covenants and agreements of the Company
shall inure to the benefit of the successors and assigns of the holders hereof.
12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description of headings
of the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of California.
13. LOST WARRANTS. The Company represents and warrants to the Holder
hereof that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation upon
surrender and cancellation of such Warrant, the Company, at its expense, will
make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
14. FRACTIONAL SHARES. No fractional shares shall be issued upon exercise
of this Warrant. The Company shall, in lieu of issuing any fractional share,
pay the holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the then effective Stock Purchase Price.
15. INVESTORS' RIGHTS AGREEMENT. Promptly following the date hereof, the
Company shall seek the necessary stockholder approval to amend and restate the
Amended and Restated Investors' Rights Agreement dated December 23, 1998 (the
"Investors' Rights Agreement") to include this Warrant (and any other Warrants
issued to a Holder) as a Warrant (as such term is defined in the Investors'
Rights Agreement) (such amendment and restatement being referred to hereinafter
as the "Amended and Restated Investors' Rights Agreement"). Promptly following
such stockholder approval, each of the Company and the Holder shall execute and
deliver to the other an Amended and Restated Investors' Rights Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
8.
<PAGE> 55
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its officers, thereunto duly authorized this 20th day of March, 1999.
QUOKKA SPORTS, INC.
a Delaware corporation
By: /s/ R. H. Williams
---------------------------
Name: R. H. Williams
-------------------------
Title: Chairman
------------------------
ATTEST:
[signature illegible]
--------------------------------
Secretary
<PAGE> 56
EXHIBIT A
SUBSCRIPTION FORM
Date:__________, 19__
Quokka Sports, Inc.
525 Brannan Street
Ground Floor
San Francisco, CA 94107
Attn: President
Ladies and Gentlemen:
[ ] The undersigned hereby elects to exercise Warrant No. PWC-10 (the
"Warrant") issued to it by Quokka Sports, Inc. (the "Company") and
dated ___________, 1999 and to purchase thereunder _____________ shares
of the Warrant Stock of the Company (the "Shares") at a purchase price of
_____________ per Share or an aggregate purchase price of
___________________________ dollars ($________) (the "Purchase Price").
[ ] The undersigned hereby elects to convert __________________________ percent
(______%) of the value of the Warrant pursuant to the provisions of Section
1.3 of the Warrant.
Pursuant to the terms of the Warrant the undersigned has delivered the
Purchase Price herewith in full in cash or by certified check or wire
transfer.
Very truly yours,
CHAMPIONSHIP AUTO RACING TEAMS, INC.
By: __________________________
Name: ________________________
Title: _______________________
<PAGE> 57
NO. PWC-11
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
WARRANT TO PURCHASE 16,585 SHARES
OF SERIES C PREFERRED STOCK OF
QUOKKA SPORTS, INC.
(VOID AFTER MARCH 19, 2004)
This certifies that CHAMPIONSHIP AUTO RACING TEAMS, INC. or its assigns (the
"Holder"), for value received, is entitled to purchase from QUOKKA SPORTS, INC.,
a Delaware corporation (the "Company") having a place of business at 525 Brannan
Street, San Francisco, California, a maximum of Sixteen Thousand Five Hundred
Eighty Five (16,585) fully paid and nonassessable shares of Warrant Stock (as
defined below) for cash at such time(s) as set forth below and at a purchase
price of $30.18 per share (the "Stock Purchase Price") up to and including 5:00
p.m. (Pacific time) on the date five (5) years from the date of this Warrant,
such date being referred to herein as the "Expiration Date," upon surrender to
the Company at its principal office (or at such other location as the Company
may advise the Holder in writing) of this Warrant properly endorsed with the
Form of Subscription attached hereto duly filled in and signed and, if
applicable, upon payment in cash or by check of the aggregate Stock Purchase
Price for the number of shares for which this Warrant is being exercised
determined in accordance with the provisions hereof. The Stock Purchase Price
and the number of shares purchasable hereunder are subject to adjustment as
provided in Section 3 of this Warrant. The term "Warrant Stock" refers to the
Company's Series C Preferred Stock and any other securities at any time
receivable or issuable upon exercise of this Warrant.
Notwithstanding anything contained herein to the contrary, in the event the
Agreement (the "Agreement"), dated effective as of January 1, 1999, between the
Holder and CART DIGITAL MEDIA ENTERPRISES, LLC ("CDME"), or any other agreement
entered into among the Holder, the Company and CDME (or any combination thereof)
pursuant to the Agreement, is terminated, either by the Company or CDME as a
result of uncured material breach by Holder or by Holder for other than an
uncured material breach by the Company or CDME, such an event (the "Termination
Event") will cause this Warrant to become immediately void and the date of such
Termination Event (the "Termination Date") will be deemed the "Expiration Date"
for purposes hereof. Notwithstanding anything contained herein to the contrary
however, upon a Termination Event, the Holder will have ninety (90) days from
the Termination Date to exercise this Warrant to the extent of the Vested
Portion as of the Termination Date (as determined under Section 1.1 below).
<PAGE> 58
This Warrant is subject to the following terms and conditions:
1. VESTING; EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
1.1 VESTING. The portion of this Warrant that is exercisable at any
given time is determined by the chart below and is referred to as the "Vested
Portion."
<TABLE>
<CAPTION>
-------------------------------------------------------------------------
VESTING DATE:
VESTED PORTION DATE SHARES ARE FIRST EXERCISABLE STOCK PURCHASE PRICE
-------------------------------------------------------------------------
<S> <C> <C>
16,585 December 31, 2002 $30.18
-------------------------------------------------------------------------
</TABLE>
1.2 EXERCISE. The Vested Portion of this Warrant is exercisable at the
option of the Holder, at any time or from time to time up to the Expiration Date
for all or any part of the shares of Warrant Stock (but not for a fraction of a
share) which may be purchased hereunder. The Company agrees that the shares of
Warrant Stock purchased under this Warrant shall be and are deemed to be issued
to the Holder hereof as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been surrendered, properly
endorsed, the completed, executed Form of Subscription delivered and payment
made for such shares. Certificates for the shares of Warrant Stock so purchased,
together with any other securities or property to which the Holder hereof is
entitled upon such exercise, shall be delivered to the Holder hereof by the
Company at the Company's expense within a reasonable time after the rights
represented by this Warrant have been so exercised. In case of a purchase of
less than all the shares which may be purchased under this Warrant, the Company
shall cancel this Warrant and execute and deliver a new Warrant or Warrants of
like tenor for the balance of the shares purchasable under the Warrant
surrendered upon such purchase to the Holder hereof within a reasonable time.
Each stock certificate so delivered shall be in such denominations of Warrant
Stock as may be requested by the Holder hereof and shall be registered in the
name of such Holder.
1.3 NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Warrant Stock
is greater than the Stock Purchase Price (at the date of calculation as set
forth below), in lieu of exercising this Warrant for cash, the Holder may elect
to receive shares equal to the value (as determined below) of this Warrant (or
the portion thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with the properly endorsed Form of
Subscription and notice of such election in which event the Company shall issue
to the Holder a number of shares of Warrant Stock computed using the following
formula:
X = Y(A-B)
------
A
Where X = the number of shares of Warrant Stock to be issued to
the Holder
2.
<PAGE> 59
Y = the number of shares of Warrant Stock purchasable under the
Warrant or, if only a portion of the Warrant is being exercised,
the portion of the Warrant being canceled (at the date of such
calculation)
A = the fair market value of one share of the Company's Warrant Stock
(at the date of such calculation)
B = Stock Purchase Price (as adjusted to the date of such calculation)
For purposes of the above calculation, fair market value of one share of Warrant
Stock shall be determined by the Company's Board of Directors in good faith;
provided, however, that in the event the Company makes an initial public
offering of its Common Stock (the "Initial Public Offering") the fair market
value per share shall be the product of (i) the per share offering price to the
public of the Initial Public Offering if the exercise occurs upon the closing of
the Company's Initial Public Offering or, if later, the closing price of the
Company's Common Stock on the date of exercise, and (ii) the number of shares of
Common Stock into which each share of Warrant Stock is convertible at the time
of such exercise.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company covenants
and agrees that all shares of Warrant Stock which may be issued upon the
exercise of the rights represented by this Warrant (and shares of its Common
Stock for issuance on conversion of such Warrant Stock) will, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any shareholder and free of all taxes, liens and charges
with respect to the issue thereof. The Company further covenants and agrees
that, during the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and reserved, for
the purpose of issue or transfer upon exercise of the subscription rights
evidenced by this Warrant, a sufficient number of shares of authorized but
unissued Warrant Stock and Common Stock, or other securities and property, when
and as required to provide for the exercise of the rights represented by this
Warrant. The Company will take all such action as may be necessary to assure
that such shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any domestic securities
exchange upon which the Warrant Stock or Common Stock may be listed; provided,
however, that the Company shall not be required to effect a registration under
Federal or State securities laws with respect to such exercise. The Company will
not take any action which would result in any adjustment of the Stock Purchase
Price (as set forth in Section 3 hereof) (i) if the total number of shares of
Warrant Stock issuable after such action upon exercise of all outstanding
warrants, together with all shares of Warrant Stock then outstanding and all
shares of Warrant Stock then issuable upon exercise of all options and upon the
conversion of all convertible securities then outstanding, would exceed the
total number of shares of Warrant Stock then authorized by the Company's
Certificate of Incorporation, or (ii) if the total number of shares of Common
Stock issuable after such action upon the conversion of all such shares of
Warrant Stock, together with all shares of Common Stock then issuable upon
exercise of all options and upon the conversion of all such shares of Warrant
Stock, together with
3.
<PAGE> 60
all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and upon the conversion of all
convertible securities then outstanding would exceed the total number of shares
of Common Stock then authorized by the Company's Certificate of Incorporation.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND NUMBER OF SHARES. The Stock
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 3. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be entitled to
purchase (subject to the other provisions hereof), at the Stock Purchase Price
resulting from such adjustment, the number of shares obtained by multiplying
the Stock Purchase Price in effect immediately prior to such adjustment by the
number of shares purchasable pursuant hereto immediately prior to such
adjustment, and dividing the product thereof by the Stock Purchase Price
resulting from such adjustment.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company shall
at any time subdivide its outstanding shares of Warrant Stock into a greater
number of shares, the Stock Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Warrant Stock of the Company shall be combined into a
smaller number of shares, the Stock Purchase Price in effect immediately prior
to such combination shall be proportionately increased.
3.2 DIVIDENDS IN WARRANT STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the Holders of Warrant
Stock (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received or become entitled to
receive, without payment therefor.
(a) Warrant Stock or any shares of stock or other securities
which are at any time directly or indirectly convertible into or exchangeable
for Warrant Stock, or any rights or options to subscribe for, purchase or
otherwise acquire any of the foregoing by way of dividend or other distribution,
(b) any cash paid or payable otherwise than as a cash dividend,
or
(c) Warrant Stock or additional stock or other securities or
property (including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement, (other than shares of
Warrant Stock issued as a stock split or adjustments in respect of which shall
be covered by the terms of Section 3.1 above), then and in each such case, the
Holder hereof shall, upon the exercise of this Warrant, be entitled to receive,
in addition to the number of shares of Warrant Stock receivable thereupon, and
without payment of any additional consideration therefor, the amount of stock
and other securities and property (including cash in the cases referred to in
clause (b) above and this clause (c)) which such Holder would hold on the date
of such exercise had he been the holder of record of such Warrant Stock as of
the date on which holders of Warrant Stock received or became entitled to
receive such shares or all other additional stock and other securities and
property.
4.
<PAGE> 61
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any recapitalization, reclassification or reorganization of the
capital stock of the Company, or any consolidation or merger of the Company
with another corporation, or the sale of all or substantially all of its assets
or other transaction shall be effected in such a way that holders of Warrant
Stock shall be entitled to receive stock, securities, or other assets or
property (an "Organic Change"), then, as a condition of such Organic Change,
lawful and adequate provisions shall be made by the Company whereby the Holder
hereof shall thereafter (subject to the other provisions hereof) have the right
to purchase and receive (in lieu of the shares of the Warrant Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented hereby) such shares of stock, securities or other assets
or property as may be issued or payable with respect to or in exchange for a
number of outstanding shares of such Warrant Stock equal to the number of
shares of such stock immediately theretofore purchasable and receivable upon
the exercise of the rights represented hereby; provided, however, that in the
event the value of the stock, securities or other assets or property
(determined in good faith by the Board of Directors of the Company) issuable
or payable with respect to one share of the Warrant Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby is in excess of the Stock Purchase Price hereof
effective at the time of a merger and securities received in such
reorganization, if any, are publicly traded, then this Warrant shall expire
unless exercised prior to such Organic Change. In the event of any Organic
Change, appropriate provision shall be made by the Company with respect to the
rights and interests of the Holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for adjustments of
the Stock Purchase Price and of the number of shares purchasable and receivable
upon the exercise of this Warrant) shall thereafter be applicable, in relation
to any shares of stock, securities or assets thereafter deliverable upon the
exercise hereof. The Company will not effect any such consolidation, merger or
sale unless, prior to the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or the corporation
purchasing such assets shall assume by written instrument reasonably
satisfactory in form and substance to the Holders of a majority of the warrants
to purchase Warrant Stock then outstanding, executed and mailed or delivered to
the registered Holder hereof at the last address of such Holder appearing on
the books of the Company, the obligation to deliver to such Holder such shares
of stock, securities or assets as, in accordance with the foregoing provisions,
such Holder may be entitled to purchase.
3.4 CONVERSION OF WARRANT STOCK. In case all or any portion of the
authorized and outstanding shares of Warrant Stock of the Company are redeemed
or converted or reclassified into other securities or property pursuant to the
Company's Certificate of Incorporation or otherwise, or the Warrant Stock
otherwise ceases to exist, then, in such case, the Holder of this Warrant, upon
exercise hereof at any time after the date on which the Warrant Stock is so
redeemed or converted, reclassified or ceases to exist (the "Triggering Date"),
shall receive, in lieu of the number of shares of Warrant Stock that would have
been issuable upon such exercise immediately prior to the Triggering Date, the
shares of Common Stock of the Company that would have been received if this
Warrant had been exercised in full and the Warrant Stock received thereupon had
been simultaneously converted immediately prior to the Triggering Date, all
subject to further adjustment as provided in this Warrant. Additionally, the
Stock Purchase Price shall be immediately adjusted to equal the quotient
obtained by dividing (x)
5.
<PAGE> 62
the aggregate Stock Purchase Price of the maximum number of shares of Warrant
Stock for which this Warrant was exercisable immediately prior to the
Triggering Date by (y) the number of shares of Common Stock of the Company for
which this Warrant is exercisable immediately after the Triggering Date, all
subject to further adjustment as provided herein.
3.5 CERTAIN EVENTS. If any change in the outstanding Warrant Stock
of the Company or any other event occurs as to which the other provisions of
this Section 3 are not strictly applicable or if strictly applicable would not
fairly protect the purchase rights of the Holder of the Warrant in accordance
with such provisions, then the Board of Directors of the Company shall make an
adjustment in the number and class of shares available under the Warrant, the
Stock Purchase Price or the application of such provisions, so as to project
such purchase rights as aforesaid. The adjustment shall be such as will give the
Holder of the Warrant upon exercise for the same aggregate Stock Purchase Price
the total number, class and kind of shares as he would have owned had the
Warrant been exercised prior to the event and had he continued to hold such
shares until after the event requiring adjustment.
3.6 NOTICES OF CHANGE. Immediately upon any adjustment in the number
or class of shares subject to this Warrant and of the Stock Purchase Price, the
Company shall give written notice thereof to the Holder, setting forth in
reasonable detail and certifying the calculation of such adjustment.
4. ISSUE TAX. the issuance of certificates for shares of Warrant Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax (other than any applicable income taxes) in
respect thereof; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the then
Holder of the Warrant being exercised.
5. CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of any warrant or of any shares of Warrant Stock
issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY. Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a shareholder of
the Company or any other matters or any rights whatsoever as a shareholder of
the Company. No dividends or interest shall be payable or accrued in respect of
this Warrant or the interest represented hereby or the shares purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised. No provisions hereof, in the absence of affirmative action by the
holder to purchase shares of Warrant Stock, and no mere enumeration herein of
the rights or privileges of the holder hereof, shall give rise to any liability
of such Holder for the Stock Purchase Price or as a shareholder of the Company,
whether such liability is asserted by the Company or by its creditors.
7. TRANSFER. Subject to compliance with applicable federal and state
securities laws, this Warrant and all rights hereunder are transferable, in
whole or in part, without charge to the holder hereof (except for transfer
taxes), upon surrender of this Warrant properly endorsed.
6.
<PAGE> 63
Each taker and holder of this Warrant, by taking or holding the same, consents
and agrees that this Warrant, when endorsed in blank, shall be deemed
negotiable, and that the holder hereof, when this Warrant shall have been so
endorsed, may be treated by the Company, at the Company's option, and all other
persons dealing with this Warrant as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented by this Warrant,
or to the transfer hereof on the books of the Company any notice to the
contrary notwithstanding; but until such transfer on such books, the Company
may treat the registered owner hereof as the owner for all purposes.
The Holder, by acceptance hereof, agrees that, absent an effective registration
statement filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "1993 Act"), covering the disposition
or sale of this Warrant or the Warrant Stock, and registration or qualification
under applicable state securities laws, such Holder will not sell, transfer,
pledge or hypothecate any or all such Warrants or Warrant Stock, unless either
(i) the Company has received an opinion of counsel, in form and substance
reasonably satisfactory to the Company, to the effect that such registration is
not required in connection with such disposition or (ii) the sale of such
securities is made pursuant to Rule 144 of the 1933 Act. Notwithstanding the
foregoing, the Company hereby confirms its intent, after delivery of the
opinion described above, to consent to the sale, transfer, pledge or
hypothecation of this Warrant to holders of membership interests in the Holder.
The Holder, by acceptance hereof, agrees that, it will not transfer or dispose
of any Warrant Stock or Common Stock (or other securities) that it may acquire
upon exercise of rights under this Warrant for a period specified by the
representatives of the underwriters of Common Stock (or other securities) of
the Company not to exceed one hundred eighty (180) days following the effective
date of the Company's Initial Public Offering.
8. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE OF WARRANT. The rights and
obligations of the Company, of the holder of this Warrant and of the holder of
shares of Warrant Stock, shall survive the exercise of this Warrant.
9. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
10. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the holder hereof or the Company shall be delivered
or shall be sent by certified mail, postage prepaid, to each such holder at its
address as shown on the books of the Company or to the Company at the address
indicated therefor in the first paragraph of this Warrant or such other address
as either may from time to time provide to the other.
11. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets. All of the obligations of the
Company relating to the Warrant Stock issuable upon the exercise of this
Warrant shall survive the exercise and
7.
<PAGE> 64
termination of this Warrant. All of the covenants and agreements of the Company
shall inure to the benefit of the successors and assigns of the holder hereof.
12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description headings of
the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of California.
13. LOST WARRANTS. The Company represents and warrants to the Holder
hereof that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation upon
surrender and cancellation of such Warrant, the Company, at its expense, will
make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
14. FRACTIONAL SHARES. No fractional shares shall be issued upon exercise
of this Warrant. The Company shall, in lieu of issuing any fractional share,
pay the holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the then effective Stock Purchase Price.
15. INVESTORS' RIGHTS AGREEMENT. Promptly following the date hereof, the
Company shall seek the necessary stockholder approval to amend and restate the
Amended and Restated Investors' Rights Agreement dated December 23, 1998 (the
"Investors' Rights Agreement") to include this Warrant (and any other Warrants
issued to Holder) as a Warrant (as such term is defined in the Investors'
Rights Agreement) (such amendment and restatement being referred to hereinafter
as the "Amended and Restated Investors' Rights Agreement"). Promptly following
such stockholder approval, each of the Company and the Holder shall execute and
deliver to the other an Amended and Restated Investors' Rights Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
8.
<PAGE> 65
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its officers, thereunto duly authorized this 20th day of March, 1999.
QUOKKA SPORTS, INC.
a Delaware corporation
By: /s/ R. H. WILLIAMS
---------------------------
Name: R. H. Williams
-------------------------
Title: Chairman
------------------------
ATTEST:
[signature illegible]
--------------------------------
Secretary
<PAGE> 66
EXHIBIT A
SUBSCRIPTION FORM
Date:__________, 19__
Quokka Sports, Inc.
525 Brannan Street
Ground Floor
San Francisco, CA 94107
Attn: President
Ladies and Gentlemen:
[ ] The undersigned hereby elects to exercise Warrant No. PWC-11 (the
"Warrant") issued to it by Quokka Sports, Inc. (the "Company") and dated
___________, 1999 and to purchase thereunder _____________ shares of the
Warrant Stock of the Company (the "Shares") at a purchase price of
_____________ per Share or an aggregate purchase price of
___________________________ dollars ($________) (the "Purchase Price").
[ ] The undersigned hereby elects to convert __________________________ percent
(______%) of the value of the Warrant pursuant to the provisions of Section
1.3 of the Warrant.
Pursuant to the terms of the Warrant the undersigned has delivered the
Purchase Price herewith in full in cash or by certified check or wire
transfer.
Very truly yours,
CHAMPIONSHIP AUTO RACING TEAMS, INC.
By: __________________________
Name: ________________________
Title: _______________________
<PAGE> 67
No. PWC-12
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
WARRANT TO PURCHASE 14,790 SHARES
OF SERIES C PREFERRED STOCK OF
QUOKKA SPORTS, INC.
(VOID AFTER MARCH 19, 2004)
This certifies that CHAMPIONSHIP AUTO RACING TEAMS, INC. or its assigns (the
"Holder"), for value received, is entitled to purchase from QUOKKA SPORTS, INC.,
a Delaware corporation (the "Company") having a place of business at 525 Brannan
Street, San Francisco, California, a maximum of Fourteen Thousand Seven Hundred
Ninety (14,790) fully paid and nonassessable shares of Warrant Stock (as defined
below) for cash at such time(s) as set forth below and a purchase price of
$42.26 per share (the "Stock Purchase Price") up to and including 5:00 p.m.
(Pacific time) on the date five (5) years from the date of this Warrant, such
date being referred to herein as the "Expiration Date," upon surrender to the
Company at its principal office (or at such other location as the Company may
advise the Holder in writing) of this Warrant properly endorsed with the Form of
Subscription attached hereto duly filled in and signed and, if applicable, upon
payment in cash or by check of the aggregate Stock Purchase Price for the number
of shares for which this Warrant is being exercised determined in accordance
with the provisions hereof. The Stock Purchase Price and the number of shares
purchasable hereunder are subject to adjustment as provided in Section 3 of this
Warrant. The term "Warrant Stock" refers to the Company's Series C Preferred
Stock and any other securities at any time receivable or issuable upon exercise
of this Warrant.
Notwithstanding anything contained herein to the contrary, in the event the
Agreement (the "Agreement"), dated effective as of January 1, 1999, between the
Holder and CART DIGITAL MEDIA ENTERPRISES, LLC ("CDME"), or any other agreement
entered into among the Holder, the Company and CDME (or any combination thereof)
pursuant to the Agreement, is terminated, either by the Company or CDME as a
result of uncured material breach by Holder or by Holder for other than an
uncured material breach by the Company or CDME, such an event (the "Termination
Event") will cause this Warrant to become immediately void and the date of such
Termination Event (the "Termination Date") will be deemed the "Expiration Date"
for purposes hereof. Notwithstanding anything contained herein to the contrary
however, upon a Termination Event, the Holder will have ninety (90) days from
the Termination Date to exercise this Warrant to the extent of the Vested
Portion as of the Termination Date (as determined under Section 1.1 below).
<PAGE> 68
This Warrant is subject to the following terms and conditions:
1. VESTING; EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
1.1 VESTING. The portion of this Warrant that is exercisable at any
given time is determined by the chart below and is referred to as the "Vested
Portion."
<TABLE>
<CAPTION>
VESTING DATE:
VESTED PORTION DATE SHARES ARE FIRST EXERCISABLE STOCK PURCHASE PRICE
-------------- --------------------------------- --------------------
<S> <C> <C>
14,790 December 31, 2003 $42.26
</TABLE>
1.2 EXERCISE. The Vested Portion of this Warrant is exercisable at
the option of the Holder, at any time or from time to time up to the Expiration
Date for all or any part of the shares of Warrant Stock (but not for a fraction
of a share) which may be purchased hereunder. The Company agrees that the shares
of Warrant Stock purchased under this Warrant shall be and are deemed to be
issued to the Holder hereof as the record owner of such shares as of the close
of business on the date on which this Warrant shall have been surrendered,
properly endorsed, the completed, executed Form of Subscription delivered and
payment made for such shares. Certificates for the shares of Warrant Stock so
purchased, together with any other securities or property to which the Holder
hereof is entitled upon such exercise, shall be delivered to the Holder hereof
by the Company at the Company's expense within a reasonable time after the
rights represented by this Warrant have been so exercised. In case of a purchase
of less than all the shares which may be purchased under this Warrant, the
Company shall cancel this Warrant and execute and deliver a new Warrant or
Warrants of like tenor for the balance of the shares purchasable under the
Warrant surrendered upon such purchase to the Holder hereof within a reasonable
time. Each stock certificate so delivered shall be in such denominations of
Warrant Stock as may be requested by the Holder hereof and shall be registered
in the name of such Holder.
1.3 NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Warrant Stock
is greater than the Stock Purchase Price (at the date of calculation as set
forth below), in lieu of exercising this Warrant for cash, the Holder may elect
to receive shares equal to the value (as determined below) of this Warrant (or
the portion thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with the properly endorsed Form of
Subscription and notice of such election in which event the Company shall issue
to the Holder a number of shares of Warrant Stock computed using the following
formula:
X=Y(A-B)
------
A
Where X= the number of shares of Warrant Stock to be issued to
the Holder
2.
<PAGE> 69
Y= the number of shares of Warrant Stock purchasable under
the Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being
canceled (at the date of such calculation)
A= the fair market value of one share of the Company's
Warrant Stock (at the date of such calculation)
B= Stock Purchase Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value of one share of
Warrant Stock shall be determined by the Company's Board of Directors in good
faith; provided, however, that in the event the Company makes an initial public
offering of its Common Stock (the "Initial Public Offering") the fair market
value per share shall be the product of (i) the per share offering price to the
public of the Initial Public Offering if the exercise occurs upon the closing
of the Company's Initial Public Offering or, if later, the closing price of the
Company's Common Stock on the date of exercise, and (ii) the number of shares
of Common Stock into which each share of Warrant Stock is convertible at the
time of such exercise.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company covenants
and agrees that all shares of Warrant Stock which may be issued upon the
exercise of the rights represented by this Warrant (and shares of its Common
Stock for issuance on conversion of such Warrant Stock) will, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any shareholder and free of all taxes, liens and charges
with respect to the issue thereof. The Company further covenants and agrees
that, during the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and reserved, for
the purpose of issue or transfer upon exercise of the subscription rights
evidenced by this Warrant, a sufficient number of shares of authorized but
unissued Warrant Stock and Common Stock, or other securities and property, when
and as required to provide for the exercise of the rights represented by this
Warrant. The Company will take all such action as may be necessary to assure
that such shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of any domestic securities
exchange upon which the Warrant Stock or Common Stock may be listed; provided,
however, that the Company shall not be required to effect a registration under
Federal or State securities laws with respect to such exercise. The Company will
not take any action which would result in any adjustment of the Stock Purchase
Price (as set forth in Section 3 hereof) (i) if the total number of shares of
Warrant Stock issuable after such action upon exercise of all outstanding
warrants, together with all shares of Warrant Stock then outstanding and all
shares of Warrant Stock then issuable upon exercise of all options and upon the
conversion of all convertible securities then outstanding, would exceed the
total number of the total number of shares of Warrant Stock then authorized by
the Company's Certificate of Incorporation, or (ii) if the total number of
shares of Common Stock issuable after such action upon the conversion of all
such shares of Warrant Stock, together with all shares of Common Stock then
issuable upon exercise of all options and upon the conversion of all such shares
of Warrant Stock, together with
3.
<PAGE> 70
all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and upon the conversion of all
convertible securities then outstanding would exceed the total number of shares
of Common Stock then authorized by the Company's Certificate of Incorporation.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND NUMBER OF SHARES. The Stock
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 3. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be entitled to
purchase (subject to the other provisions hereof), at the Stock Purchase Price
resulting from such adjustment, the number of shares obtained by multiplying
the Stock Purchase Price in effect immediately prior to such adjustment by the
number of shares purchasable pursuant hereto immediately prior to such
adjustment, and dividing the product thereof by the Stock Purchase Price
resulting from such adjustment.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company shall
at any time subdivide its outstanding shares of Warrant Stock into a greater
number of shares, the Stock Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Warrant Stock of the Company shall be combined into a
smaller number of shares, the Stock Purchase Price in effect immediately prior
to such combination shall be proportionately increased.
3.2 DIVIDENDS IN WARRANT STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the Holders of Warrant
Stock (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received or become entitled to
receive, without payment therefor,
(a) Warrant Stock or any shares of stock or other securities
which are at any time directly or indirectly convertible into or exchangeable
for Warrant Stock, or any rights or options to subscribe for, purchase or
otherwise acquire any of the foregoing by way of dividend or other distribution,
(b) any cash paid or payable otherwise than as a cash dividend,
or
(c) Warrant Stock or additional stock or other securities or
property (including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement, (other than shares of
Warrant Stock issued as a stock split or adjustments in respect of which shall
be covered by the terms of Section 3.1 above), then and in each such case, the
Holder hereof shall, upon the exercise of this Warrant, be entitled to receive,
in addition to the number of shares of Warrant Stock receivable thereupon, and
without payment of any additional consideration therefor, the amount of stock
and other securities and property (including cash in the cases referred to in
clause (b) above and this clause (c)) which such Holder would hold on the date
of such exercise had he been the holder of record of such Warrant Stock as of
the date on which holders of Warrant Stock received or became entitled to
receive such shares or all other additional stock and other securities and
property.
4.
<PAGE> 71
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any recapitalization, reclassification or reorganization of the
capital stock of the Company, or any consolidation or merger of the Company
with another corporation, or the sale of all or substantially all of its assets
or other transaction shall be effected in such a way that holders of Warrant
Stock shall be entitled to receive stock, securities, or other assets or
property (an "Organic Change"), then, as a condition of such Organic Change,
lawful and adequate provisions shall be made by the Company whereby the Holder
hereof shall thereafter (subject to the other provisions hereof) have the right
to purchase and receive (in lieu of the shares of the Warrant Stock of the
Company immediately theretofore purchasable and receivable upon the exercise of
the rights represented hereby) such shares of stock, securities or other assets
or property as may be issued or payable with respect to or in exchange for a
number of outstanding shares of such Warrant Stock equal to the number of
shares of such stock immediately theretofore purchasable and receivable upon
the exercise of the rights represented hereby; provided, however, that in the
event the value of the stock, securities or other assets or property
(determined in good faith by the Board of Directors of the Company) issuable
or payable with respect to one share of the Warrant Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby is in excess of the Stock Purchase Price hereof
effective at the time of a merger and securities received in such
reorganization, if any, are publicly traded, then this Warrant shall expire
unless exercised prior to such Organic Change. In the event of any Organic
Change, appropriate provision shall be made by the Company with respect to the
rights and interests of the Holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for adjustments of
the Stock Purchase Price and of the number of shares purchasable and receivable
upon the exercise of this Warrant) shall thereafter be applicable, in relation
to any shares of stock, securities or assets thereafter deliverable upon the
exercise hereof. The Company will not effect any such consolidation, merger or
sale unless, prior to the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or the corporation
purchasing such assets shall assume by written instrument reasonably
satisfactory in form and substance to the Holders of a majority of the warrants
to purchase Warrant Stock then outstanding, executed and mailed or delivered to
the registered Holder hereof at the last address of such Holder appearing on
the books of the Company, the obligation to deliver to such Holder such shares
of stock, securities or assets as, in accordance with the foregoing provisions,
such Holder may be entitled to purchase.
3.4 CONVERSION OF WARRANT STOCK. In case all or any portion of the
authorized and outstanding shares of Warrant Stock of the Company are redeemed
or converted or reclassified into other securities or property pursuant to the
Company's Certificate of Incorporation or otherwise, or the Warrant Stock
otherwise ceases to exist, then, in such case, the Holder of this Warrant, upon
exercise hereof at any time after the date on which the Warrant Stock is so
redeemed or converted, reclassified or ceases to exist (the "Triggering Date"),
shall receive, in lieu of the number of shares of Warrant Stock that would have
been issuable upon such exercise immediately prior to the Triggering Date, the
shares of Common Stock of the Company that would have been received if this
Warrant had been exercised in full and the Warrant Stock received thereupon had
been simultaneously converted immediately prior to the Triggering Date, all
subject to further adjustment as provided in this Warrant. Additionally, the
Stock Purchase Price shall be immediately adjusted to equal the quotient
obtained by dividing (x)
5.
<PAGE> 72
the aggregate Stock Purchase Price of the maximum number of shares of Warrant
Stock for which this Warrant was exercisable immediately prior to the
Triggering Date by (y) the number of shares of Common Stock of the Company for
which this Warrant is exercisable immediately after the Triggering Date, all
subject to further adjustment as provided herein.
3.5 CERTAIN EVENTS. If any change in the outstanding Warrant Stock
of the Company or any other event occurs as to which the other provisions of
this Section 3 are not strictly applicable or if strictly applicable would not
fairly protect the purchase rights of the Holder of the Warrant in accordance
with such provisions, then the Board of Directors of the Company shall make an
adjustment in the number and class of shares available under the Warrant, the
Stock Purchase Price or the application of such provisions, so as to protect
such purchase rights as aforesaid. The adjustment shall be such as will give the
Holder of the Warrant upon exercise for the same aggregate Stock Purchase Price
the total number, class and kind of shares as he would have owned had the
Warrant been exercised prior to the event and had he continued to hold such
shares until after the event requiring adjustment.
3.6 NOTICES OF CHANGE. Immediately upon any adjustment in the
number or class of shares subject to this Warrant and of the Stock Purchase
Price, the Company shall give written notice thereof to the Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
4. ISSUE TAX. The issuance of certificates for shares of Warrant Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax (other than any applicable income taxes) in
respect thereof; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the then
Holder of the Warrant being exercised.
5. CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of any warrant or of any shares of Warrant Stock
issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY. Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a shareholder of
the Company or any other matters or any rights whatsoever as a shareholder of
the Company. No dividends or interest shall be payable or accrued in respect of
this Warrant or the interest represented hereby or the shares purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised. No provisions hereof, in the absence of affirmative action by the
Holder to purchase shares of Warrant Stock, and no mere enumeration herein of
the rights or privileges of the holder hereof, shall give rise to any liability
of such Holder for the Stock Purchase Price or as a shareholder of the Company,
whether such liability is asserted by the Company or by its creditors.
7. TRANSFER. Subject to compliance with applicable federal and state
securities laws, this Warrant and all rights hereunder are transferable, in
whole or in part, without charge to the holder hereof (except for transfer
taxes), upon surrender of this Warrant properly endorsed.
6.
<PAGE> 73
Each taker and holder of this Warrant, by taking or holding the same, consents
and agrees that this Warrant, when endorsed in blank, shall be deemed
negotiable, and that the holder hereof, when this Warrant shall have been so
endorsed, may be treated by the Company, at the Company's option, and all other
persons dealing with this Warrant as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented by this Warrant,
or to the transfer hereof on the books of the Company any notice to the contrary
notwithstanding; but until such transfer on such books, the Company may treat
the registered owner hereof as the owner for all purposes.
The Holder, by acceptance hereof, agrees that, absent an effective registration
statement filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "1933 Act"), covering the disposition
or sale of this Warrant or the Warrant Stock, and registration or qualification
under applicable state securities laws, such Holder will not sell, transfer,
pledge or hypothecate any or all such Warrants or Warrant Stock, unless either
(i) the Company has received an opinion of counsel, in form and substance
reasonably satisfactory to the Company, to the effect that such registration is
not required in connection with such disposition or (ii) the sale of such
securities is made pursuant to Rule 144 of the 1933 Act. Notwithstanding the
foregoing, the Company hereby confirms its intent, after delivery of the
opinion described above, to consent to the sale, transfer, pledge or
hypothecation of this Warrant to holders of membership interests in the Holder.
The Holder, by acceptance hereof, agrees that, it will not transfer or dispose
of any Warrant Stock or Common Stock (or other securities) that it may acquire
upon exercise of rights under this Warrant for a period specified by the
representatives of the underwriters of Common Stock (or other securities) of
the Company not to exceed one hundred eighty (180) days following the effective
date of the Company's Initial Public Offering.
8. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE OF WARRANT. The rights and
obligations of the Company, of the holder of this Warrant and of the holder of
shares of Warrant Stock, shall survive the exercise of this Warrant.
9. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
10. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the holder hereof or the Company shall be delivered
or shall be sent by certified mail, postage prepaid, to each such holder at its
address as shown on the books of the Company or to the Company at the address
indicated therefor in the first paragraph of this Warrant or such other address
as either may from time to time provide to the other.
11. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets. All of the obligations of the
Company relating to the Warrant Stock issuable upon the exercise of this
Warrant shall survive the exercise and
7.
<PAGE> 74
termination of this Warrant. All of the covenants and agreements of the Company
shall inure to the benefit of the successors and assigns of the holder hereof.
12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description headings of
the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of California.
13. LOST WARRANTS. The Company represents and warrants to the Holder
hereof that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation upon
surrender and cancellation of such Warrant, the Company, at its expense, will
make and deliver a new Warrant, of like tenor, in lieu of the lost stolen,
destroyed or mutilated Warrant.
14. FRACTIONAL SHARES. No fractional shares shall be issued upon exercise
of this Warrant. The Company shall, in lieu of issuing any fractional share, pay
the holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the then effective Stock Purchase Price.
15. INVESTORS' RIGHTS AGREEMENT. Promptly following the date hereof, the
Company shall seek the necessary stockholder approval to amend and restate the
Amended and Restated Investors' Rights Agreement dated December 23, 1998 (the
"Investors' Rights Agreement") to include this Warrant) and any other Warrants
issued to Holder) as a Warrant (as such term is defined in the Investors' Rights
Agreement) (such amendment and restatement being referred to hereinafter as the
"Amended and Restated Investors' Rights Agreement"). Promptly following such
stockholder approval, each of the Company and the Holder shall execute and
deliver to the other an Amended and Restated Investors' Rights Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
8.
<PAGE> 75
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its officers, thereunto duly authorized this 20th day of March, 1999.
QUOKKA SPORTS, INC.
a Delaware corporation
By: /s/ R. H. WILLIAMS
---------------------------
Name: R. H. Williams
-------------------------
Title: Chairman
------------------------
ATTEST:
[signature illegible]
--------------------------------
Secretary
<PAGE> 76
EXHIBIT A
SUBSCRIPTION FORM
Date:__________, 19__
Quokka Sports, Inc.
525 Brannan Street
Ground Floor
San Francisco, CA 94107
Attn: President
Ladies and Gentlemen:
[ ] The undersigned hereby elects to exercise Warrant No. PWC-12 (the
"Warrant") issued to it by Quokka Sports, Inc. (the "Company") and
dated ___________, 1999 and to purchase thereunder _____________ shares
of the Warrant Stock of the Company (the "Shares") at a purchase price
of _____________ per Share or an aggregate purchase price of
___________________________ dollars ($________) (the "Purchase Price").
[ ] The undersigned hereby elects to convert __________________________ percent
(______%) of the value of the Warrant pursuant to the provisions of Section
1.3 of the Warrant.
Pursuant to the terms of the Warrant the undersigned has delivered the
Purchase Price herewith in full in cash or by certified check or wire
transfer.
Very truly yours,
CHAMPIONSHIP AUTO RACING TEAMS, INC.
By: __________________________
Name: ________________________
Title: _______________________
<PAGE> 77
SPONSORSHIP CATEGORIES
<TABLE>
<CAPTION>
YEARS OF CONTRACT
----------------------------------------------------------------
OFFICIAL SPONSOR 1998 1999 2000 2001 2002 CATEGORY
---------------- ---- ---- -------- -------- ---- --------------------------
<S> <C> <C> <C> <C> <C> <C>
Anheuser-Busch Official Beer
Sears Craftsman* Official Tools and Battery
Featherlite Official Trailer & Coach
Federal Express (1)
Ford SVO Official Safety
Technological Supplier
Holmatro
Honda* Official
Motorcycle/Power
[*] Equipment
K&K Insurance*
MCI Official Communications
Company(2)
Mercedes-Benz Official Car
Racing Radios/Motorola* Official Two Way Radio
Communications Provider
Swiss Timing/Omega Official Timekeeper
PPG Co-Series Sponsor or Co-
Title Sponsor
Toyota* Official Truck
Valvoline Official Fuel
Supplier/Motor Oil
</TABLE>
[*]
-------------
(1) Sponsor category means the movement of packages, documents and freight,
utilizing logistics, electronic and integrated air/ground networks, [*] when
such companies may associate with race teams competing in the series. [*]
(2) Official communications company encompasses long distance calling services;
local calling services; calling cards; prepaid calling cards; and wireless
services (including cellular and paging services), and is subject to CART's
agreement [*].
26
[*] Confidential Treatment Requested.