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EXHIBIT 10.7
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This (this "Agreement") is entered into as of March
11, 1998 between ▇▇▇▇▇▇.▇▇▇, a California corporation (the "Company"), and
Silicon Valley Bank ("Sponsor").
The Company is in the process of establishing an Internet-based service
for matching pre-screened "seed stage" technology startup investment
opportunities with high quality, pre-screened angel, corporate and venture
capital investors. Sponsor is a commercial bank which provides loans and other
financial services to technology, life science and other companies. Sponsor
through an affiliated entity is making an equity investment in the Company and
also desires to have its name and services prominently featured on the
Company's Website for viewing by entrepreneurs and investors, among others, on
the terms and conditions set forth below.
1. THE COMPANY. The Company will promptly establish and operate an
Internet-based service for matching pre-screened "seed stage" technology startup
opportunities with high quality, pre-screened angel, corporate and venture
capital investors ("On-Line Matchmaking"). During the term of this Agreement,
the Company shall focus its activities to On-Line Matchmaking, obtaining related
advertising, and organizing and conducting related seminars and events. The
Company shall not provide services similar to Sponsor's StarSource(TM) program
but may from time to time refer clients of the Company to attorneys, accountants
and other founding sponsors.
2. SPONSORSHIP AND PROMOTIONAL ACTIVITIES.
2.1 SPONSORSHIP OF THE COMPANY.
(a) The Company shall have not more than one "founding sponsor"
in each service area related to technology start up companies (banking, law,
accounting, venture capital fund, investment banking, real estate brokerage,
headhunting, etc.). Sponsor shall be the sole bank "founding sponsor" of the
Company in the banking area. As such, Sponsor shall be the most prominently
featured bank on the Company's public World Wide Web site, currently located at
http//▇▇▇.▇▇▇▇▇▇.▇▇▇ (the "Site"), and in marketing, advertising and
promotional materials ("Marketing Materials") distributed by or for the
Company, and shall be the sole contributor of content in content forums and
expert columns on the public and private portions of the Site relating to
commercial and executive banking. With the exception of Sponsor, the Company
shall not have as a "founding sponsor" or "platinum sponsor" any service (or
person or entity providing such service) that identifies and makes referrals of
professional service providers and suppliers to startup and emerging growth
companies and their executives. The Company shall prominently feature Sponsor's
banners, hyperlinks, advertising material and
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content on the Site, including in both the public and private portions of the
Site, as prominently as all other "founding sponsors" of the Company and shall
identify and feature Sponsor in the Company's Marketing Materials as
prominently as all other "founding sponsors" of the Company. By way of example,
the Company shall prominently feature Sponsor's content-based bank forum in the
public and private portions of the Site, together with Sponsor's designated
banners and hyperlinks, and shall prominently identify Sponsor as one of the
Company's select and exclusive "founding sponsors." Sponsor shall have the
right to review and approve all content and material referencing Sponsor on the
Site or in the Company's Marketing Materials, provided that the Company shall
retain sole editorial control over issues such as placement, size and other
elements of presentation on the Site. For purposes of this Section 2, (i) a
"founding sponsor" means Sponsor, Venture Law Group, Coopers & ▇▇▇▇▇▇▇ LLP,
Advanced Technology Ventures and other entities who enter into agreements to
become "founding sponsors" of the Company on terms and conditions satisfactory
to the Company's Board of Directors; (ii) a "platinum sponsor" means an entity
who has the second highest most visible presence on the Site, among other
features, and who enters into an agreement to become "platinum sponsors" on
terms and conditions satisfactory to the Company's Board of Directors; and
(iii) "bank" means commercial banks, savings and loan institutions, credit
unions, commercial leasing companies and other similar institutions but does
not include investment banks, brokerage houses, mutual fund companies and other
similar financial institutions. The Company, however, shall solicit and
consider the views and objectives of Sponsor in entering into s with a bank, investment bank, brokerage house or similar financial
institution.
(b) Nothing in Section 2.1(a) shall limit the Company's right (i) to
run banner or other forms of advertisements on the Site or in the Company's
Marketing Materials for banks other than Sponsor; or (ii) to feature banks
other than Sponsor on the Site (including maintaining hyperlinks to such banks'
World Wide Web sites) or in the Company's Marketing Materials or to accept
other banks as "sponsors" of the Company as long as all of the requirements of
Section 2.1(a) above are followed, including, but not limited to, the
requirement that Sponsor will be the "most prominently" featured bank on the
Site and in the Company's Marketing Materials, that Sponsor will be the only
bank to host and contribute content forums and expert columns on the Site, and
that the Sponsor will be the only bank which provides content on the Site.
(c) Sponsor shall not be a "founding sponsor" (in a manner similar
to this Agreement) or invest in any other service (or person or entity
providing such service) which uses the Internet to match investment
opportunities in technology startup companies with investors in a manner
competitive with the Company. The Company shall be the only such service
prominently featured on Sponsor's Website and in its promotional or marketing
materials and advertisements. Notwithstanding the above, Sponsor shall have the
right (i) to place advertisements with any such competing service and have a
link on such competing service's Website to Sponsor's Website, (ii) to refer
persons to other such competing services in addition to and as an alternative
to the Company, (iii) to establish and operate an Internet-based service for
identifying and referring professional service providers and suppliers to
startup and emerging
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growth companies and their executives, and provided related content and forums
to such companies and executives, and (iv) to have normal customer or lending
relationships with any such competing service in the ordinary course of its
business.
2.2 PROMOTION OF THE SITE AND COMPANY SERVICES. Sponsor shall use
reasonable efforts to promote the Site and the Company's services on its
Website and in its Marketing Materials. The exact nature and extent of such
promotion shall be left in the control and discretion of Sponsor. Sponsor shall
also make known its sponsorship of the Company to its lending and other
officers and arrange meetings between such persons and the Company from time to
time and shall encourage such persons to refer appropriate potential clients
needing "seed stage" investment to the Company. Nothing in this section,
however, shall require Sponsor to refer all potential clients needing "seed
stage" investment to the Company.
2.3 SPONSOR PRODUCTS AND SERVICES. The Company shall use
reasonable efforts to promote Sponsor's products and services related to
technology companies and executives and investors on the Site and in its
Marketing Materials, such as Sponsor's QuickStart(TM), StarSource(TM), and
Executive Banking programs. The Company and Sponsor shall cooperate and
coordinate the exact nature and extent of such promotion. The Company shall
also use reasonable efforts to make known its beneficial relationship with
Sponsor and shall refer appropriate persons needing bank services to Sponsor.
Nothing in this section, however, shall require the Company to refer all
appropriate persons needing bank services to Sponsor.
3. NOTICE OF INVESTMENT OPPORTUNITIES AND FUNDING. The Company shall
provide a representative of Sponsor who is designated from time to time by
Sponsor with advance (generally three (3) business days) notice of investment
opportunities in the Company's clients and of the funding of the Company's
clients prior to the posting of such opportunities and notice of such funding
on the Site in accordance with procedures applicable to all "founding
sponsors", employees, directors and advisors of the Company adopted from time
to time by the Company's Board of Directors.
4. ACCESS TO THE COMPANY'S RESTRICTED PORTION OF THE SITE FOR ANGEL,
CORPORATE AND VENTURE CAPITAL INVESTORS. During the term of this Agreement, the
Company will provide Sponsor with twenty-five (25) transferable one-year passes
each year of the term of this Agreement which provide full access to and use of
the Company's restricted portion of the Site for angel, corporate and venture
capital investors for use by persons designated from time to time by Sponsor,
provided such persons meet the qualifications and provide the requisite
information required by the Company for its angel, corporate or venture capital
investors.
5. ACCESS TO SPONSOR'S STARSOURCE(TM) PORTION OF ITS WEBSITE. During
the term of this Agreement, Sponsor shall provide each client of the Company
with a thirty (30) day pass which provides full access to and use of Sponsor's
StarSource(TM) portion of Sponsor's Website. The Company shall inform its
clients when such clients first enter the private section of the Company's
Website devoted to entrepreneurs (tentatively called "the Garage") of the
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third party. All terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
transferees, successors and assigns.
9.5 REGULATED ENTITY. The Company understands that Sponsor and
its affiliates are regulated entities. Nothing in this Agreement shall require
Sponsor to take any action which in any way violates applicable laws or
regulations in the opinion of Sponsor's counsel.
9.7 PREVAILING PARTY. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to
which such party may be entitled.
9.8 ARBITRATION. Any dispute between the parties arising out of
or in connection with this Agreement shall be referred for settlement to
arbitration in Santa ▇▇▇▇▇ County, California in accordance with the Commercial
Rules of the American Arbitration Association. The award shall be final and
binding upon the parties and judgment of such award may be entered in any court
or tribunal having jurisdiction.
COMPANY: SPONSOR:
▇▇▇▇▇▇.▇▇▇ SILICON VALLEY BANK
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇ ▇▇▇▇▇▇▇▇, CEO ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
Executive Vice President
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opportunity to access Sponsor's StarSource(TM) portion of Sponsor's Website
under the terms of this section.
6. LICENSES. The Company and Sponsor each grants to the other party a
nonexclusive, worldwide, royalty-free license, with no right to sublicense, to
use, reproduce and distribute, in print, on-line and such other media as the
parties may agree from to time, such party's name,logo and other trademarks and
servicemarks used with respect to such party's products and services for the
sole purpose of fulfilling the parties' respective obligations under this
Agreement. Any such use shall be in accordance with the guidelines established
by the licensing party, as in effect from time to time.
7. SPONSORSHIP FEES. Sponsor shall pay the Company a sponsorship fee of
$25,000 on each six-month anniversary of the date of this Agreement, for a
total of $150,000 during the three-year term of this Agreement.
8. TERM. This Agreement shall have a term of three years beginning with
the date of this Agreement and shall be automatically renewed for additional
one year periods unless either party notifies the other of its desire not to
renew this Agreement at least ninety days prior to its expiration. Prior to the
expiration of the terms of this Agreement, Sponsor shall have the right of
first refusal to renew this Agreement for an additional three (3) year term and
maintain its status as the "bank founding sponsor." Notwithstanding the
foregoing, either party may terminate this Agreement at any time thirty days
after written notice to the other party of such other party's breach of any of
its obligations under this Agreement in any material respect, which breach is
not remedied within such thirty day period. In the event Sponsor terminates
this Agreement in accordance with the preceding sentence, Sponsor shall have no
obligations to make any further payment of sponsorship fees.
9. GENERAL PROVISIONS.
9.1 ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties with respect to Sponsor's sponsorship of the Company.
9.2 AMENDMENT AND WAIVER. No amendment to, or waiver of, any
provision of this Agreement shall be effective unless in writing and signed by
both parties.
9.3 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California without
regard to the conflicts of laws principles thereof.
9.4 SUCCESSORS AND ASSIGNS. Neither party shall assign its rights or
obligations under this Agreement without the prior written consent of the other
party, except in connection with the merger, sale of assets or other form of
transfer of the business of a party to a
