-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Sw2OPCzjw4hm/IYmR0XMtkmD4etvH/Ty0Niwmb3zQ/iX91Yoj0JeC6ohM7KXn6LO MW2nSz5fp5PALUoetb+4Nw== 0001012870-99-003046.txt : 19990902 0001012870-99-003046.hdr.sgml : 19990902 ACCESSION NUMBER: 0001012870-99-003046 CONFORMED SUBMISSION TYPE: S-1 PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 19990901 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INFOSPACE COM INC CENTRAL INDEX KEY: 0001068875 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROCESSING & DATA PREPARATION [7374] IRS NUMBER: 911718107 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: S-1 SEC ACT: SEC FILE NUMBER: 333-86313 FILM NUMBER: 99704197 BUSINESS ADDRESS: STREET 1: 15375- 90TH AVENUE N.E. CITY: REDMOND STATE: WA ZIP: 98052 BUSINESS PHONE: 4258821602 S-1 1 FORM S-1 As filed with the Securities And Exchange Commission on September 1, 1999 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- INFOSPACE.COM, INC. (Exact name of Registrant as specified in its charter) Delaware 7375 91-1718107 (State or other (Primary Standard (I.R.S. Employer jurisdiction of Industrial Identification Number) incorporation or Classification Code organization) Number) 15375 N.E. 90th Street Redmond, Washington 98052 (425) 602-0600 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ---------------- NAVEEN JAIN Chief Executive Officer InfoSpace.com, Inc. 15375 N.E. 90th Street Redmond, Washington 98052 (425) 602-0600 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------- Copies to: PATRICK J. SCHULTHEIS RICHARD C. SOHN DREW G. MARKHAM Wilson Sonsini Goodrich & Rosati Professional Corporation 5300 Carillon Point Kirkland, Washington 98033 (425) 576-5800 ---------------- Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement. If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] __________ If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] __________ If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. [_] ---------------- CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
Proposed Proposed Amount Maximum Maximum Title of Each Class of to be Offering Price Aggregate Amount of Securities to be Registered Registered Per Share(1) Offering Price(1) Registration Fee - --------------------------------------------------------------------------------------------- Common Stock, $0.0001 par value.............. 746,392 shares $44.4375 $33,167,794.50 $9,221 - --------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------
(1)Calculated solely for purposes of computing the registration fee pursuant to Rule 457 under the Securities Act based on the average high and low trading price for the common stock on August 26, 1999. ---------------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall hereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to such Section 8(a), may determine. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +The information in this prospectus is not complete and may be changed. We + +cannot sell these securities until the registration statement filed with the + +Securities and Exchange Commission is effective. This prospectus is not an + +offer to sell these securities and it is not soliciting an offer to buy these + +securities in any state where the offer or sale is not permitted. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED SEPTEMBER 1, 1999 PROSPECTUS 746,392 Shares [LOGO OF INFOSPACE.COM APPEARS HERE] Common Stock InfoSpace.com is offering 746,392 shares to the holders of exchangeable shares of InfoSpace.com Canada Holdings Inc., an Ontario corporation, to the holders of warrants to purchase shares of our common stock and to the holders of convertible debentures that are convertible into shares of our common stock. InfoSpace.com Canada Holdings will issue the exchangeable shares in exchange for outstanding shares of the common stock of INEX Corporation, an Ontario corporation, in connection with the proposed combination of InfoSpace.com and INEX. Holders of exchangeable shares may then exchange one exchangeable share for one share of our common stock, and in some cases we may redeem each exchangeable share for one share of our common stock. We describe the process by which exchangeable shares may be exchanged for our common stock on page 76 of this prospectus under the heading "Plan of Distribution." Holders of exchangeable shares may exchange their exchangeable shares for shares of our common stock immediately upon the completion of the combination of InfoSpace.com and INEX or at a later time. We are offering the shares of our common stock on a continuous basis pursuant to Rule 415 under the Securities Act of 1933 only during the period when the registration statement relating to this prospectus is effective. We will bear the registration costs incurred in connection with this offering. Our common stock is traded on the Nasdaq National Market under the symbol "INSP." On August 30, 1999, the last reported sale price for the common stock on the Nasdaq National Market was $45.00 per share. See "Price Range of Common Stock." -------- Investing in the common stock involves a high degree of risk. See "Risk Factors" beginning on page 5. -------- The Securities and Exchange Commission and state securities regulators have not approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. The date of this Prospectus is September 1, 1999 TABLE OF CONTENTS
Page ---- About Infospace.com................................................ 3 Our Acquisition of INEX Corporation................................ 4 Risk Factors....................................................... 5 Forward-looking Statements......................................... 20 Use of Proceeds.................................................... 21 Dividend Policy.................................................... 21 Price Range of Common Stock........................................ 21 Capitalization..................................................... 22 Selected Consolidated Financial Data............................... 23 Management's Discussion and Analysis of Financial Condition and Results of Operations..................... 24 Business........................................................... 43 Management......................................................... 61 Certain Transactions............................................... 68 Principal Stockholders............................................. 70 Description of Capital Stock....................................... 71 Plan of Distribution............................................... 76 Income Tax Considerations.......................................... 85 Experts............................................................ 93 Additional Information............................................. 93 Index to Financial Statements...................................... F-1
---------------- You should rely only on the information contained in this document or to which we have referred you. We have not authorized anyone to provide you with information that is different. This document may only be used where it is legal to sell these securities. The information in this document may only be accurate on the date of this document. We began operations in March 1996 as a Washington corporation and were incorporated in Delaware in April 1996, at which time the operations of our Washington corporation predecessor were transferred to the Delaware corporation. As used in this prospectus, references to "we," "our," "us" and "InfoSpace.com" refer to InfoSpace.com, Inc., its predecessors and its consolidated subsidiaries. Our executive offices are located at 15375 N.E. 90th Street, Redmond, Washington 98052, and our telephone number is (425) 602-0600. We maintain a World Wide Web site at www.infospace.com. Information contained on our Web site does not constitute part of this prospectus. "InfoSpace" is a registered trademark of ours. We have also applied for federal registration of other marks, including "InfoSpace.com," "ActiveShopper," and our logo. Each logo, product name, tradename or service mark of any other company appearing in this prospectus belongs to its holder. Except as otherwise noted, all information in this prospectus gives effect to a two-for-one stock split of our outstanding common stock consummated in May 1999. 2 ABOUT INFOSPACE.COM, INC. InfoSpace.com is a leading Internet infrastructure company that provides private label solutions for content, community and commerce to Web sites and Internet appliances. Our affiliate network consists of more than 1,800 Web sites. Our affiliates include AOL, Microsoft, Lycos, NBC's Snap, go2net Inc.'s MetaCrawler, Disney/InfoSeek's GO Network, Network Solutions, DoubleClick, Dow Jones (The Wall Street Journal Interactive Edition), ABC LocalNet, BellSouth and US West. Our private label solutions include (1) content services, such as yellow pages and white pages, maps and directions, classified advertisements, real-time stock quotes, sports, information on local businesses and events, weather forecasts and horoscopes, (2) community services, such as online address books and personal calendars, personal home pages, message boards and online chat rooms, and (3) our electronic commerce solution, ActiveShopper, which allows shoppers to research, buy and obtain special promotions for products offered online, review offline catalogs, locate auction sites where a product is being offered, conduct online price comparisons and locate merchants in the shopper's local area. By aggregating content and commerce information from multiple sources and integrating it with related information and community services using our proprietary technology, we help to increase the convenience, relevance and enjoyment of our affiliate users' visits, thereby promoting increased traffic and repeat usage. This, in turn, provides enhanced advertising and electronic commerce revenue opportunities to affiliates with minimal additional investment. By leveraging our relationships, services and technology, affiliates are free to focus on their core competencies. We have acquired the rights to a wide range of content from more than 65 third-party content providers. The cornerstone of our content solution is our nationwide yellow pages and white pages directory information. Using our proprietary technology, we integrate this directory information with other value-added content to help users find people, places and things in the real world. As an example of the power of our contextual integration, a salesperson using our content, community and commerce services can, from the results of a single query, find the name and address of a new customer, add the address to his or her online address book, check the customer's online calendar, obtain directions to his or her office, send a card or gift, check the weather forecast and, typically, make an online reservation at the nearest hotel, browse the menu of a nearby restaurant and review a schedule of entertainment events for the locale. We have developed community and commerce services that we integrate with related content. Our suite of community services enables affiliates to increase user loyalty and user visits by offering online personal calendars, address books, Web-based email, personal home pages and online chat and message boards. Our recent acquisition of MyAgent technology enables us to offer real-time Internet communication such as real-time messaging and enhancements to our community services. We launched our commerce service, ActiveShopper, in May 1999. ActiveShopper is designed to help our affiliates retain users and prolong their visits by allowing consumers to make critical purchase decisions from within a single, fully featured commerce service and never leave an affiliate's site. ActiveShopper provides the ability to research, obtain special promotions and purchase products from more than 2,500 online and offline retailers. We design our private label solutions to be highly flexible and customizable, enabling affiliates to select from among our broad range of content, community and commerce services. One of our principal strengths is our internally developed technology, which enables us to easily and rapidly add new affiliates by employing a distributed, scalable architecture adapted specifically for our Internet-based content, community and commerce services. We help our affiliates build and maintain their brands by delivering these private label solutions with the look and feel and navigation features specific to each affiliate, creating the impression to end users that they have not left the affiliate's site. We have designed our technology to support affiliates across multiple platforms and formats, including the growing number of emerging Internet appliances. We typically share advertising revenues with the affiliates whose sites incorporate our content, community and commerce services where advertisements are placed. 3 We derive substantially all of our revenues from national and local advertising, promotions, including content and commerce promotions, and, to a lesser extent, non-advertising based private label solutions. Through our direct sales force, we offer a variety of national advertising and promotions that enable advertisers to access both broad and targeted audiences. We also sell local Internet yellow pages advertising through cooperative sales relationships with Regional Bell Operating Companies (known as RBOCs) and established independent yellow pages publishers, media companies and direct marketing companies. We believe that these relationships provide us access to local sales expertise and customer relationships that give us an advantage over competitors while minimizing our own sales infrastructure investment. OUR ACQUISITION OF INEX CORPORATION On August 13, 1999, we signed a definitive agreement to acquire Toronto-based INEX Corporation. The combination, which is intended to be accounted for as a pooling of interests, is expected to be completed during the third quarter of 1999, subject to satisfaction of customary closing conditions. We will issue 900,000 shares of our common stock (1) directly to those INEX shareholders who elect to receive our common stock in exchange for their INEX shares at the closing of the combination, (2) upon the exchange or redemption of the exchangeable shares of InfoSpace.com Canada Holdings Inc., an indirect subsidiary of ours, which exchangeable shares will be issued to those INEX shareholders who elect to receive exchangeable shares, or who do not make an election to receive shares of our common stock, at the closing and (3) upon the exercise or conversion of outstanding warrants and options to purchase INEX common shares and convertible debentures convertible into INEX common shares, all of which we will assume and which will become exercisable or convertible for shares of our common stock after the closing. This prospectus relates to the shares of our common stock issuable upon the exchange or redemption of the exchangeable shares and the exercise or conversion of the warrants and convertible debentures we will assume. INEX Corporation is a software company that develops and markets Internet commerce solutions designed for the small and medium-sized business merchants. INEX recruits, develops and manages reseller channels and strategic partners with a comprehensive support program, sales and marketing tools and resources. These tactics are designed to help its licensees capitalize on the potential of the Internet commerce market, to assist the small and medium-sized business merchant realize the Internet commerce promise and for INEX to realize its mission to aggressively penetrate and capture market share in the small and medium-sized business markets. INEX currently has two electronic commerce storefront product offerings that consist of: . INEX ezStore: a feature-rich, OEM solution that reseller channel licensees and alliance partners can lease for a nominal fee on a monthly basis to their small and medium-sized business merchants as part of a complete end-to-end electronic storefront hosting service offering; and . INEX Commerce Court Suite: an upgrade path from INEX ezStore for merchants requiring a more sophisticated and powerful electronic commerce solution. We believe that the acquisition of INEX will enable us to offer our affiliates the ability to attract and host online retailers and local merchants on their sites by offering a complete, affordable and easy-to-use solution for these retailers and merchants to build, manage and promote online storefronts. 4 RISK FACTORS You should carefully consider the risks and uncertainties described below before making an investment decision. If any of the following risks actually occur, our business, financial condition or operating results could be materially harmed. This could cause the trading price of our common stock to decline, and you may lose all or part of your investment. This prospectus contains forward-looking statements that involve known and unknown risks and uncertainties. These statements relate to our plans, objectives, expectations and intentions. Our actual results could differ materially from those discussed in these statements. Factors that could contribute to these differences include those discussed below and elsewhere in this prospectus. You May Be Taxed on the Exchange. The exchange of exchangeable shares of InfoSpace.com Canada Holdings Inc. (the exchangeable shares) for shares of our common stock is generally a taxable event in Canada and the United States. A holder's tax consequences can vary depending on a number of factors, including the residency of the holder, the method of the exchange (redemption or exchange) and the length of time that the exchangeable shares were held prior to exchange. See "Income Tax Considerations--Canadian Federal Income Tax Considerations" and "--United States Federal Tax Considerations." There May Be Differences in Canadian and U.S. Trading Markets. The exchangeable shares will not be listed on any stock exchange in Canada or the United States. We have agreed that our shares of common stock issuable from time to time in exchange for the exchangeable shares will be listed on the Nasdaq National Market. There is no current intention to list our common stock on any other stock exchange in Canada or the United States, nor is there any current intention to establish a trading market for the exchangeable shares. As a result of the foregoing, we believe that the value of the exchangeable shares will reflect essentially the equivalent value of our common stock on the Nasdaq National Market. However, if a market for the exchangeable shares should develop, there can be no assurances that the market price of the exchangeable shares would correspond to that of our common stock. Pending and Potential Acquisitions Involve Risks. We have acquired complementary technologies or businesses in the past, and intend to do so in the future. Acquisitions may involve potentially dilutive issuances of stock, the incurrence of additional debt and contingent liabilities or large one-time write-offs and amortization expenses related to goodwill and other intangible assets. Any of these factors could adversely affect our results of operations or stock price. Acquisitions, including our pending combination with INEX, involve numerous risks, including: . difficulties in assimilating the operations, products, technology, information systems and personnel of the acquired company; . diverting management's attention from other business concerns; . impairing relationships with our employees, affiliates, advertisers and content providers; . being unable to maintain uniform standards, controls, procedures and policies; . entering markets in which we have no direct prior experience; and . losing key employees of the acquired company. In June 1998, we acquired Outpost Network, Inc. As a result of this acquisition, we acquired certain electronic commerce technology and hired approximately ten employees. We issued approximately 3,000,000 shares of stock to the former shareholders of Outpost and agreed to offer employment to certain employees 5 of Outpost. In June 1999 we acquired certain MyAgent technology assets from Active Voice Corporation and hired six employees who helped develop MyAgent Technology. Upon the closing of our combination with INEX, INEX will become a subsidiary of ours and we will relocate some INEX employees to our headquarters in Redmond, Washington. We could issue as many as 900,000 shares of our common stock as a result of our combination with INEX. We may not be able to successfully integrate the technology and personnel we acquired from Active Voice or INEX or any other businesses, technologies or personnel that we acquire in the future. We and the businesses acquired by us may require substantial additional capital, and there can be no assurance as to the availability of such capital when needed, nor as to the terms on which such capital might be made available to us. We have retained, and may in the future retain, existing management of acquired companies or technologies, under the overall supervision of our senior management. The success of the operations of these acquired companies and technologies will depend, to a great extent, on the continued efforts of the management of the acquired companies. We Have a Limited Operating History and a History of Losses. We have a very limited operating history, which makes it difficult to evaluate our business and prospects. We have incurred net losses since our inception in March 1996. At June 30, 1999, we had an accumulated deficit of approximately $15.6 million. We expect to incur significant operating losses on a quarterly basis in the future. We may never be profitable. Our prospects must be considered in light of the risks, expenses and difficulties frequently encountered by companies in their early stage of development, particularly companies in new and rapidly evolving markets such as Internet services. To address the risks we face and to be able to achieve and sustain profitability, we must, among other things: . develop and maintain strategic relationships with potential content providers and affiliates; . identify and acquire the rights to additional content and successfully develop additional information infrastructure services; . successfully integrate new features with our content, community and commerce services; . expand our sales and marketing efforts, including relationships with third parties to sell local advertising for our Internet yellow pages directory services; . maintain and increase our affiliate and advertiser base; . successfully expand into international markets; . retain and motivate qualified personnel; and . successfully respond to competitive developments. If we do not effectively address the risks we face, our business will suffer and we may never achieve or sustain profitability. See "Selected Consolidated Financial Data" and "Management's Discussion and Analysis of Financial Condition and Results of Operations." Our Business Model Is Evolving and Unproven. Our business model is described below. We: . aggregate content and commerce information from third-parties; . integrate this content and commerce information with related information and community services; . distribute these integrated services on a private label basis to leading Internet portals, destination sites and suppliers of PCs and other Internet appliances; and . generate revenues from the sale of national and local advertisements and promotions on the Web pages that deliver our content, community and commerce solutions. 6 Our business model is relatively new to the Internet, is unproven and is likely to continue to evolve. Accordingly, our business model may not be successful, and we may need to change it. Our ability to generate significant advertising and promotion revenues by distributing integrated content, community and commerce services depends, in part, on our ability to successfully market our content, community and commerce services to Internet portals and destination sites that currently do not rely on third-party sources for their content and service infrastructure needs and do not typically utilize content infrastructure services that are readily available to their competitors. We intend to continue to develop our business model as we explore opportunities internationally and in new and unproven areas such as electronic commerce and in providing content, community and commerce services for emerging Internet appliances. Our Financial Results Are Likely to Fluctuate. Our financial results have varied on a quarterly basis and are likely to fluctuate substantially in the future. These fluctuations may be caused by several factors, many of which are beyond our control. These factors include: . the addition or loss of affiliates; . variable demand for our private label solutions by our affiliates; . the cost of acquiring and the availability of content and commerce information; . the overall level of demand for content, community and commerce services; . our ability to attract and retain advertisers and content providers; . seasonal trends in Internet usage and advertising placements; . the amount and timing of fees we pay to our affiliates to include our content, community and commerce solutions on their Web sites; . the productivity of our direct sales force and the sales forces of the RBOCs, independent yellow pages publishers, media companies and direct marketing companies that sell local Internet yellow pages advertising for us; . the amount and timing of increased expenditures for expansion of our operations, including the hiring of new employees, capital expenditures and related costs; . our ability to continue to enhance, maintain and support our technology; . the result of litigation that is currently ongoing against InfoSpace.com, or any litigation that is filed against us in the future; . our ability to attract and retain personnel; . the introduction of new or enhanced services by us or our affiliates, or other companies that compete with us or our affiliates; . price competition or pricing changes in Internet advertising and Internet services, such as ours; . technical difficulties, system downtime, system failures or Internet brown-outs; . political or economic events and governmental actions affecting Internet operations or content; and . general economic conditions and economic conditions specific to the Internet. If one or more of these factors or other factors occur, our business could suffer. In addition, because InfoSpace.com only began operations in March 1996, and because the market for Internet information infrastructure services such as ours is new and evolving, it is very difficult to predict future financial results. We plan to significantly increase our sales and marketing, research and development 7 and general and administrative expenses in the balance of 1999. Our expenses are partially based on our expectations regarding future revenues, and are largely fixed in nature, particularly in the short term. As a result, if our revenues in a period do not meet our expectations, our financial results will likely suffer. Our Business Is Seasonal. During the summer months and year-end holiday season, Internet usage typically declines, and our affiliates experience reduced user traffic. In addition, advertising sales in traditional media, such as broadcast and cable television, generally declines in the first and third quarters of the year. This seasonality is likely to cause fluctuations in our financial results. We Rely on Advertising and Promotion Revenues. We derive substantially all of our revenues from the sale of national and local advertisements and promotions on the Web pages that deliver our content, and we expect this to continue in the future. Our ability to increase our revenues will depend upon a number of factors, including the following: . the acceptance of the Internet as an advertising medium by national and local advertisers; . the acceptance and regular use of our content, community and commerce solutions by a large number of users who have demographic characteristics that are attractive to advertisers; . the success of our strategy to sell local Internet yellow pages advertising through third parties; . the expansion and productivity of our advertising sales force; and . the development of the Internet as an attractive platform for electronic commerce. We are relying on revenues from local Internet yellow pages advertising as a significant source of our future revenues. However, we have not yet generated significant revenues from local Internet yellow pages advertising. See "--We Rely on Third Parties for Sales of Internet Yellow Pages Advertising." We Rely on Our Relationships with Affiliates. We will be able to continue generating revenues from advertising and promotions only if we can secure and maintain distribution for our content, community and commerce solutions on acceptable commercial terms through a wide range of affiliates. We expect that revenues generated from the sale of advertisements and promotions delivered through our network of affiliates will continue to account for a significant portion of our revenues for the foreseeable future. In particular, we expect that a limited number of our affiliates, including, America Online, Inc., or AOL, and its business divisions, including Netscape, CompuServe and Digital City, and Microsoft Network, LLC will account for a substantial portion of our affiliate traffic and, therefore, revenues over time. Our distribution arrangements with our affiliates typically are for limited durations of between six months and two years and automatically renew for successive terms thereafter, subject to termination on short notice. We cannot assure you that such arrangements will not be terminated or that such arrangements will be renewed upon expiration of their terms. We generally share with each affiliate a portion of the revenues generated by advertising on the Web pages that deliver our content services. We pay carriage fees to certain affiliates, including AOL. These relationships may not be profitable or result in benefits to us that outweigh the costs of the relationships. Our affiliate relationships are in an early stage of development. If affiliates, especially major affiliates, demand a greater portion of advertising revenues or require us to make payments for access to their site or device, our business may suffer. In addition, if we lose a major affiliate, we may be unable to timely or effectively replace the affiliate with other affiliates with comparable traffic patterns and user demographics. The loss of any major affiliate could harm our business. See "Business--Affiliate Network." 8 We Rely on Third Parties for Sales of Internet Yellow Pages Advertising. We rely on arrangements with RBOCs, independent yellow pages publishers, media companies and direct marketing companies to generate local Internet yellow pages advertising revenues, both domestically and internationally. These companies sell enhanced yellow pages listings on our Internet yellow pages directory services. Under some of our arrangements with independent yellow pages publishers, we have granted exclusive rights to the publisher to sell local advertising in a specific geographic area, and we do not restrict the publisher's ability to sell advertising for any other source. We expect to derive a greater portion of our advertising revenues from these relationships in the future. These RBOCs, independent yellow pages publishers, media companies and direct marketing companies have only recently begun to offer local Internet yellow pages advertising and, accordingly, have extremely limited experience in forecasting and executing Internet advertising business models. We may have to expend significant time and effort in training their sales forces. We base our future operating plans, in part, on the local Internet yellow pages forecasts of the RBOCs, independent yellow pages publishers, media companies and direct marketing companies with which we have relationships. We cannot accurately predict the timing or the extent of the success of these local advertising efforts. Further, the RBOCs, independent yellow pages publishers, media companies and direct marketing companies have broad discretion in setting advertising rates, and they may not develop a profitable business model. We also rely on the advertisement production infrastructure of these companies for the billing and collection of local advertising payments and the production and filing of display advertisements and button advertisements. The failure of these sales relationships to generate meaningful revenues for us or for these companies to cease to maintain and support an advertisement production infrastructure could harm our business. See "Business--Advertising and Promotions." Advertisers May Not Adopt the Internet as an Advertising Medium. Most advertising agencies and potential advertisers, particularly local advertisers, have only limited experience advertising on the Internet and have not devoted a significant portion of their advertising expenditures to Internet advertising. As the Internet evolves, advertisers may find Internet advertising to be a less effective means of promoting their products and services relative to traditional methods of advertising and may not continue to allocate funds for Internet advertising. In addition, advertising on the Internet is at a much earlier stage of development in international markets compared to the United States. Fluid and intense competition in the sale of advertising on the Internet has led different vendors to quote a wide range of rates and offer a variety of pricing models for various advertising services. As a result, we have difficulty projecting future advertising revenues and predicting which pricing models advertisers will adopt. For example, if many advertisers base their advertising rates on the number of click throughs from our content services to their Web pages, instead of solely on the number of impressions received, our revenues could decrease. There are no widely accepted standards for the measurement of the effectiveness of Internet advertising, and standards may not develop sufficiently to support Internet advertising as a significant advertising medium. We typically base our advertising rates on the number of impressions received, and our advertising customers may not accept our measurements or such measurements may contain errors. Industry analysts and others have made many predictions concerning the growth of the Internet as a commercial medium. Many of these historical predictions have overstated the growth of the Internet and should not be relied upon. This growth may not occur or may occur more slowly than estimated. In addition, if a large number of consumers use "filter" software programs that limit or remove advertising from the Web, advertisers may choose not to advertise on the Internet. If the commercial use of the Internet does not develop, or if the Internet does not develop as an effective and measurable medium for advertising, our business will suffer. See "Business--Industry Background" and "--Advertising and Promotions." 9 We Rely on a Small Number of Advertising Customers. We derive a substantial portion of our revenues from a small number of advertising customers. We expect that this will continue in the forseeable future. In particular, 800-U.S. Search, Inc. accounted for approximately 20.6% of our revenues for the year ended December 31, 1998, and 27.1% of our revenues for the six months ended June 30, 1999. In addition, 800-U.S. Search represented approximately 27.3% of our accounts receivable as of December 31, 1998 and 19.7% of our accounts receivable as June 30, 1999. Our top ten advertising customers represented 47.8% of our revenues in 1998 and 58.7% of our revenues for the six months ended June 30, 1999. If we lose any of these customers, including 800-U.S. Search in particular, or if any of these customers are unable or unwilling to pay us amounts that they owe us, our financial results will suffer. Our Advertising Arrangements Involve Risks. We typically sell national advertisements pursuant to short-term agreements of less than six months. As a result, our national advertising customers could cancel these agreements, change their advertising expenditures or buy advertising from our competitors on relatively short notice and without penalty. Because we expect to derive a large portion of our future revenues from sales of national advertising, these short-term agreements expose us to competitive pressures and potentially severe fluctuations in our financial results. In addition, we typically guarantee our national advertising customers a minimum number of impressions or click throughs by Web users. These arrangements expose us to potentially significant risks. If we fail to deliver these minimum levels, we typically have to provide free advertising to the customer until the minimum level is met, which could harm our financial results. We occasionally guarantee the availability of advertising space in connection with promotion arrangements and content agreements. In addition, we occasionally provide customized advertising campaigns for advertisers and agree with certain advertisers that we will not accept advertising from any other customer within a particular subject matter. All of these arrangements subject us to certain risks. These risks include: . our potential inability to meet the guarantees we make to our customers; . our allocation of resources to create customized advertising that may not result in successful advertisements; and . a requirement to forego advertising from potential customers whose advertisements would conflict with those of other customers. Any of these results could harm our financial results. We Depend on Third Parties for Content. We typically do not create our own content. Rather, we acquire rights to information from more than 65 third-party content providers, and our future success is critically dependent upon our ability to maintain relationships with these content providers and enter into new relationships with other content providers. We typically license content under short-term arrangements that do not require us to pay royalties or other fees for the use of the content. However, we do enter into revenue-sharing arrangements with certain content providers, and we pay certain content providers, including infoUSA and Acxiom Corporation, a one-time fee or a fee for each query from Web users. In the future, we expect that certain of our content providers will likely demand a greater portion of advertising revenues or increase the fees that they charge us for their content. If we fail to enter into and maintain satisfactory arrangements with content providers, 10 our business will suffer. See "--We Need to Manage Our Growth and Implement Procedures and Controls." We Depend on Key Personnel. Our performance depends on the continued services of our executive officers and other key personnel. We maintain key person life insurance on Naveen Jain, our Chief Executive Officer, in the amount of $5.0 million. We do not maintain key person life insurance policies on any of our other employees. If we lose the services of any of our executive officers or other key employees, our business could suffer. See "Business--Employees" and "Management." We Need to Hire Additional Personnel. Our future success depends on our ability to identify, attract, hire, train, retain and motivate highly skilled technical, managerial, sales and marketing and business development personnel. We intend to hire a significant number of technical, sales and marketing, business development and administrative personnel during the next year. If we fail to successfully attract, assimilate and retain a sufficient number of qualified technical, managerial, sales and marketing, business development and administrative personnel, our business could suffer. We Need to Manage Our Growth and Maintain Procedures and Controls. We have rapidly and significantly expanded our operations and anticipate further significant expansion to accommodate expected growth in our customer base and market opportunities. We have increased the number of employees from 15 at January 1, 1998 to 102 at July 31, 1999. This expansion has placed, and is expected to continue to place, a significant strain on our management, operational and financial resources. We are also significantly increasing our employee base. We have implemented improvements in our operational, accounting and information systems, procedures and controls. In the past, our controls have not been adequate to ensure proper communication within our company regarding, and to properly document, the terms of certain of our written and verbal contracts and the termination of certain contracts. In the past, we did not consistently follow our procedures with respect to the documentation of the granting of options to new employees, and, at times, we failed to maintain an appropriate level of internal communication regarding the potential hiring of new employees, especially management employees. These inadequacies have led to claims against us, some of which are still pending. See "--We Are Subject to Pending Legal Proceedings." Our relationships with content providers, affiliates and advertisers are subject to frequent change. Prior to implementing procedures and controls in this area, these changes were often informal. In particular, we may have failed to perform our obligations under certain commercial contracts that may have been modified or terminated by verbal agreement. We believe that any failure to perform our obligations was not significant. This practice of the modification or termination of past written agreements by verbal agreement has resulted, and may result in the future, in disputes regarding the existence, interpretation and circumstances regarding modification or termination of commercial contracts. We are currently involved in litigation with Internet Yellow Pages, Inc., a direct marketing company with which we had a cooperative sales relationship, and have received other claims. If our relationships with content providers, affiliates and advertisers evolve in an adverse manner, if we get into contractual disputes with content providers, affiliates or advertisers or if any agreements with such persons are terminated, our business could suffer. See "Business--Legal Proceedings." We have taken a number of steps to improve our accounting and information systems, procedures and controls and we have adopted certain policies with respect to the approval, tracking and management of our commercial agreements, including: 11 . standardizing the form of our commercial agreements, where possible; . requiring our legal and accounting departments to review any proposed commercial contract and approve contract modifications prior to their implementation; . prohibiting ourselves from entering into verbal agreements or verbal modifications or terminations of agreements; and . establishing a contracts database to serve as a central source of key information regarding our commercial contracts, which will facilitate the tracking and management of these contracts. Despite these procedures, or as a result of our failure to maintain them, disputes or issues relating to commercial agreements may arise in the future. To manage the expected growth of our operations and personnel, we must continue maintaining and improving our operational, accounting and information systems, procedures and controls. We will also need to expand, train and manage our growing employee base, particularly our finance, administrative and operations staff. Further, we must manage effectively our relationships with various Internet content providers, advertisers, affiliates and other third parties necessary to our business. If we are unable to manage growth effectively, our business could suffer. See "--We Are Subject to Pending Legal Proceedings," "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Business--Employees" and "Management." Our International Expansion Plans Involve Risks. A key component of our strategy is expanding our operations into international markets. We have entered into a joint venture agreement with Thomson Directories Limited to replicate our content, community and commerce services in Europe. The joint venture, TDL InfoSpace (Europe) Limited, has targeted the United Kingdom as its first market, and it launched content services in the third quarter of 1998. We expect that TDL InfoSpace will expand its content services to other European countries by the end of 1999. Under the joint venture agreement, each of us is obligated to negotiate with TDL InfoSpace and the other party to jointly offer content, community and commerce services in other European countries prior to offering such services independently or with other parties. In March 1999, we began providing content, community and commerce services to Canadian affiliates through our wholly-owned subsidiary, InfoSpaceCanada.com. To date, we have limited experience in developing and syndicating localized versions of our private label solutions internationally, and we may not be able to successfully execute our business model in these markets. In addition, international markets experience lower levels of Internet usage and Internet advertising than the United States. We rely on our business partner in Europe for U.K. directory information and local sales forces and may enter into similar relationships if we expand into other international markets. Accordingly, our success in these markets will be directly linked to the success of our business partners in such activities. If our business partners fail to successfully establish operations and sales and marketing efforts in these markets, our business could suffer. See "Business-- International Expansion." In addition, we face a number of risks inherent in doing business in international markets, including, among others: . unexpected changes in regulatory requirements; . potentially adverse tax consequences; . export controls relating to encryption technology; . tariffs and other trade barriers; . difficulties in staffing and managing foreign operations; . changing economic conditions; 12 . exposures to different legal standards (particularly with respect to intellectual property and distribution of information over the Internet); . burdens of complying with a variety of foreign laws; . fluctuations in currency exchange rates; and . seasonal reductions in business activity during the summer months in Europe and certain other parts of the world. If any of these risks occur, our business could suffer. Our Business Is Highly Competitive. We operate in the Internet information infrastructure services market, which is extremely competitive and is rapidly changing. Our current and prospective competitors include many large companies that have substantially greater resources than we have. We believe that the primary competitive factors in the market for Internet content, community and commerce services are: . the ability to provide content of broad appeal, which is likely to result in increased user traffic and increase the brand name value of the Web sites and Internet appliances to which the services are provided; . the ability to meet the specific content and service demands of a particular Web site or Internet appliance; . the cost-effectiveness and reliability of the content, community and commerce services; . the ability to provide content, community and commerce services that are attractive to advertisers; . the ability to achieve comprehensive coverage of a particular category of content; and . the ability to integrate related information to increase the utility of the content, community and commerce services offered. We compete, directly or indirectly, in the following ways, among others: . our directory services compete with AnyWho? (a division of AT&T), GTE SuperPages, Switchboard, ZIP2 (which was recently acquired by Compaq), various RBOCs' directory services, infoUSA's Lookup USA, Microsoft Sidewalk and Yahoo! Yellow Pages and White Pages; . other information services we provide, such as classifieds, horoscopes and real-time stock quotes, compete with specialized content providers; . our U.K. joint venture competes with British Telecom's YELL service and Scoot (UK) Limited; . our community services compete with services offered by Internet portals such as AOL, Yahoo!, and Excite, as well as specialized content service providers such as Hotmail; and . our commerce services compete with Inktomi, Amazon.com's Junglee and Excite's Jango. We expect that in the future we will experience competition from other Internet services companies and providers of Internet software, including Microsoft, Yahoo!, AOL, Excite, Disney/Infoseek, Lycos, go2net's MetaCrawler and NBC's Snap. Some of these companies are currently customers of ours, the loss of which could harm our business. We may also face increased competition from traditional media companies expanding onto the Internet. Many of our current customers have established relationships with certain of our current and potential future competitors. If our competitors develop content, community and commerce services that are superior to ours or that achieve greater market acceptance than ours, our business will suffer. 13 Our Business Relies on the Performance of Our Systems. Our success depends, in part, on the performance, reliability and availability of our content, community and commerce services. Our revenues depend, in large part, on the number of users that access our content, community and commerce services. Our computer and communications hardware is located at our main headquarters in Redmond, Washington and in additional hosting facilities provided by Exodus Communications, Inc. and Savvis Communications Corporation in the Seattle, Washington area. Our systems and operations could be damaged or interrupted by fire, flood, power loss, telecommunications failure, Internet breakdown, break-in, earthquake and similar events. We do not have a formal disaster recovery plan, and we do not carry business interruption insurance that is adequate to compensate us for losses that may occur. In addition, systems that use sophisticated software may contain bugs, which could also interrupt service. Any system interruptions resulting in the unavailability of our content, community and commerce services would reduce the volume of users able to access our content, community and commerce services and the attractiveness of our service offerings to our affiliates, advertisers and content providers, which could harm our business. Our Industry Is Experiencing Consolidation. The Internet industry has recently experienced substantial consolidation. For example, AOL has acquired Netscape, At Home has acquired Excite, and Compaq has acquired ZIP2. We expect this consolidation to continue. These acquisitions could affect us in a number of ways, including: . companies from whom we acquire content could be acquired by one of our competitors and stop selling us content; . our customers could be acquired by one of our competitors and stop buying advertising from us; and . our customers could merge with other customers, which could reduce the size of our customer base. This consolidation in the Internet industry could harm our business. We Are Subject to Pending Legal Proceedings. From time to time we have been, and expect to continue to be, subject to legal proceedings and claims in the ordinary course of our business, including claims of alleged infringement of third-party trademarks and other intellectual property rights by us. Such claims, even if not meritorious, could require the expenditure of significant financial and managerial resources, which could harm our business. An alleged former employee has filed a complaint alleging that he was terminated without cause and that he entered into an agreement with us that entitles him to an option to purchase 2,000,000 shares of our common stock or 10% of our stock. The complaint alleges breach of contract, breach of the covenant of good faith, breach of fiduciary duty, misrepresentation, promissory estoppel, intentional interference with contractual relations and unfair and deceptive acts and practices, seeking specific performance of the alleged agreement for 10% of our stock, damages equal to the value of 10% of our stock, punitive damages and attorneys' fees and costs and treble damages. To the extent that we are required to issue shares of our common stock or options to purchase common stock as a result of these claims filed by the alleged former employee, we would recognize an expense equal to the number of shares issued multiplied by the fair value of our common stock on the date of issuance, less the exercise price of any options required to be issued. This could harm our results of operations, and any such issuance would be dilutive to existing stockholders, the impact of which may be mitigated to the extent it is offset by shares of common stock in the escrow account described in "Business--Legal Proceedings." We have filed a complaint against Internet Yellow Pages, Inc., or IYP, asserting claims for (a) account stated, (b) breach of contract, and (c) fraud. IYP has filed a complaint against us asserting causes of action for breach of contract, fraud, extortion and racketeering and seeks relief consisting of $1,500,000 and other unquantified money damages, punitive damages, treble damages and attorney's fees. 14 A former consultant has filed a complaint against us alleging breach of contract, fraud and deceit, quantum meruit, promissory estoppel, and unjust enrichment and constructive trust. The former consultant alleges that he entered into an agreement with us that entitles him to an option for 28,462 shares of our common stock, and seeks relief consisting of $1,707,720 and other unquantified money damages, punitive damages, attorneys' fees, and a constructive trust over 28,462 shares of our common stock. We have denied plaintiff's claims and asserted counterclaims for breach of contract, misappropriation of trade secret information, and breach of confidential relationship. We believe we have meritorious defenses to all of these claims against us. Nevertheless, litigation is inherently uncertain, and we may not prevail in these suits. We had discussions with a number of individuals in the past regarding employment by us and also hired and subsequently terminated a number of individuals as employees or consultants. Furthermore, primarily during our early stage of development, our procedures with respect to the manner of granting options to new employees were not clearly documented. As a result of these factors, and in light of the receipt of the above claims, we have in the past received, and may in the future receive, similar claims from one or more individuals asserting rights to acquire shares of our stock or to receive cash compensation. We cannot predict whether such future claims will be made or the ultimate resolution of any currently outstanding or future claim. Naveen Jain, our Chief Executive Officer, has placed into escrow 2,000,000 shares of our stock beneficially owned by him to indemnify us and our directors for a period of five years for certain liabilities relating to events prior to September 30, 1998. The indemnification agreement, however, does not provide for indemnification for certain matters known by the Board prior to September 30, 1998 or losses less than $100,000. Satisfaction of such liabilities through the issuance of escrowed shares could result in the recognition of future expenses, which could harm our results of operations. See "Business--Legal Proceedings." We Rely on Internally Developed Software and Systems. We have developed custom software for our network servers our community services and our ActiveShopper commerce service. This software may contain undetected errors, defects or bugs. Although we have not suffered significant harm from any errors or defects to date, we may discover significant errors or defects in the future that we may or may not be able to fix. We must expand and upgrade our technology, transaction-processing systems and network infrastructure if the volume of traffic on our Web site or our affiliates' Web sites increases substantially. In addition, as we continue to expand into electronic commerce services, we may have to significantly modify our systems. We could experience periodic temporary capacity constraints, which may cause unanticipated system disruptions, slower response times and lower levels of customer service. We may be unable to accurately project the rate or timing of increases, if any, in the use of our private label solutions or expand and upgrade our systems and infrastructure to accommodate these increases in a timely manner. Any inability to do so could harm our business. See "Business-- Technology and Infrastructure." Rapid Technological Change Affects Our Business. Rapidly changing technology, evolving industry standards, evolving customer demands and frequent new product and service introductions characterize our market. Our market's early stage of development exacerbates these characteristics. Our future success depends in significant part on our ability to improve the performance, content and reliability of our private label solutions in response to both the evolving demands of the market and competitive product offerings. Our efforts in these areas may not be successful. If a large number of affiliates adopt new Internet technologies or standards, we may need to incur substantial expenditures modifying or adapting our private label solutions. We Rely on the Internet System Infrastructure. Our success depends, in large part, on other companies maintaining the Internet system infrastructure. In particular, we rely on other companies to maintain a reliable network backbone that provides adequate 15 speed, data capacity and security and to develop products that enable reliable Internet access and services. If the Internet continues to experience significant growth in the number of users, frequency of use and amount of data transmitted, the Internet system infrastructure may be unable to support the demands placed on it, and the Internet's performance or reliability may suffer as a result of this continued growth. In addition, the Internet could lose its commercial viability as a form of media due to delays in the development or adoption of new standards and protocols to process increased levels of Internet activity. Any such degradation of Internet performance or reliability could cause advertisers to reduce their Internet expenditures. If other companies do not develop the infrastructure or complementary products and services necessary to establish and maintain the Internet as a viable commercial medium, or if the Internet does not become a viable commercial medium or platform for advertising, promotions and electronic commerce, our business could suffer. We Receive Information that May Subject Us to Liability. We obtain content and commerce information from third parties. When we integrate and distribute this information over the Internet, we may be liable for the data that is contained in that content. This could subject us to legal liability for such things as defamation, negligence, intellectual property infringement and product or service liability. Many of the agreements by which we obtain content do not contain indemnity provisions in favor of us. Even if a given contract does contain indemnity provisions, these provisions may not cover a particular claim. While we carry general business insurance with a limit of $1.0 million for each occurrence and $2.0 million in the aggregate, this coverage may be inadequate. In addition, individuals whose names appear in our yellow pages and white pages directories have occasionally contacted us. These individuals believed that their phone numbers and addresses were unlisted, and our directories are not always updated to delete phone numbers or addresses when they are changed from listed to unlisted. While we have not received any claims from these individuals, we may receive claims in the future. Any liability that we incur as a result of content we receive from third parties could harm our financial results. Our Networks Face Security Risks. Even though we have implemented security measures, our networks may be vulnerable to unauthorized access by hackers or others, computer viruses and other disruptive problems. Someone who is able to circumvent security measures could misappropriate our proprietary information or cause interruptions in our Internet operations. Internet and online service providers have in the past experienced, and may in the future experience, interruptions in service as a result of the accidental or intentional actions of Internet users, current and former employees or others. We may need to expend significant capital or other resources protecting against the threat of security breaches or alleviating problems caused by breaches. Although we intend to continue to implement industry-standard security measures, persons may be able to circumvent the measures that we implement in the future. Eliminating computer viruses and alleviating other security problems may require interruptions, delays or cessation of service to users accessing Web pages that deliver our content services, any of which could harm our business. See "Business--Technology and Infrastructure--Data Network Infrastructure" and "Business--Facilities." Users of online commerce services are highly concerned about the security of transmissions over public networks. Concerns over security and the privacy of users may inhibit the growth of the Internet and other online services generally, and the Web in particular, especially as a means of conducting commercial transactions. As we expand our electronic commerce services, we intend to rely on encryption and authentication technology licensed from third parties to provide the security and authentication necessary to securely transmit confidential information, such as customer credit card numbers. Users could possibly circumvent the measures we take to protect customer transaction data. To the extent that our activities involve the storage and transmission of proprietary information, such as credit card numbers, security breaches could damage our reputation and expose us to a risk of loss or litigation and possible liability. Any compromise of our security could harm our business. 16 We May Be Unable to Adequately Protect or Enforce Our Intellectual Property Rights. Our success depends significantly upon our proprietary technology. To protect our proprietary rights, we rely on a combination of copyright and trademark laws, patents, trade secrets, confidentiality agreements with employees and third parties and protective contractual provisions. Despite our efforts to protect our proprietary rights, unauthorized parties may copy aspects of our products or services or obtain and use information that we regard as proprietary. In addition, others could possibly independently develop substantially equivalent intellectual property. If we do not effectively protect our intellectual property, our business could suffer. Companies in the computer industry have frequently resorted to litigation regarding intellectual property rights. We may have to litigate to enforce our intellectual property rights, to protect our trade secrets or to determine the validity and scope of other parties' proprietary rights. From time to time, we have received, and we may receive in the future, notice of claims of infringement of other parties' proprietary rights. Any such claims could be time-consuming, result in costly litigation, divert management's attention, cause product or service release delays, require us to redesign our products or services or require us to enter into royalty or licensing agreements. These royalty or licensing agreements, if required, may not be available on acceptable terms or at all. If a successful claim of infringement were made against us and we could not develop non-infringing technology or license the infringed or similar technology on a timely and cost-effective basis, our business could suffer. See "Business--Intellectual Property" and "--Legal Proceedings." We May Become Subject to Governmental Regulation. Because of the increasing use of the Internet, the government may adopt laws and regulations with regard to the Internet covering issues such as user privacy, pricing, content, taxation, copyrights, distribution and product and services quality. For a description of certain risks relating to government regulation, see "Business--Governmental Regulation." We May Require Additional Funding. Although we believe that our cash reserves and cash flows from operations will be adequate to fund our operations for at least the next 12 months, such sources may be inadequate. Consequently, we may require additional funds during or after such period. Financing may not be available on favorable terms or at all. If we raise additional funds by selling stock, the percentage ownership of our then current stockholders will be reduced. If we cannot raise adequate funds to satisfy our capital requirements, we may have to limit our operations significantly. Our future capital requirements depend upon many factors, including, but not limited to: . the rate at which we expand our sales and marketing operations; . the amount and timing of fees paid to affiliates to include our private label solutions on their site or service; . the extent to which we expand our content, community and commerce services; . the extent to which we develop and upgrade our technology and data network infrastructure; . the occurrence, timing, size and success of acquisitions; . the rate at which we expand internationally; and . the response of competitors to our service offerings. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." 17 Management Owns a Large Percentage of Our Stock. Our officers, directors and affiliated persons will beneficially own approximately 43.1% of our common stock after all of the shares offered in this prospectus or issuable directly to INEX shareholders upon the closing of our combination with INEX are issued. Naveen Jain, our Chief Executive Officer, will beneficially own approximately 33.2% of our common stock. As a result, our officers, directors and affiliated persons may effectively be able to: . elect, or defeat the election of, our directors; . amend or prevent amendment of our Certificate of Incorporation or Bylaws; . effect or prevent a merger, sale of assets or other corporate transaction; and . control the outcome of any other matter submitted to the stockholders for vote. Our public stockholders may have little control over the outcome of such transactions. Management's stock ownership may discourage a potential acquirer from making a tender offer or otherwise attempting to obtain control of InfoSpace.com, which in turn could reduce our stock price or prevent our stockholders from realizing a premium over our stock price. See "Management," "Certain Transactions" and "Principal Stockholders." Year 2000 Compliance Issues Could Adversely Impact Our Business. We are in the process of assessing and remediating any Year 2000 issues associated with our computer systems and software and other property and equipment. Despite our testing and remediation efforts, our systems and those of third parties, including content providers, advertisers, affiliates, and end users may contain errors or faults with respect to the Year 2000. Our efforts to address this issue are described in more detail in "Management's Discussion and Analysis of Financial Condition and Results of Operations--Year 2000 Compliance." Known or unknown errors or defects that affect the operation of our software and systems and those of third parties, including content providers, advertisers, affiliates, and end users could result in delay or loss of revenue, interruption of services, cancellation of customer contracts, diversion of development resources, damage to our reputation, increased service and warranty costs, and litigation costs, any of which could harm our business. Our Stock Price Has Been and May Continue to be Volatile. The trading price of our common stock has been and is likely to continue to be highly volatile. Since we began trading on December 15, 1998, our stock price has ranged from $7.50 to $72.625. Our stock price could be subject to wide fluctuations in response to factors such as the following: . actual or anticipated variations in quarterly results of operations; . the addition or loss of affiliates or content providers; . announcements of technological innovations, new products or services by us or our competitors; . changes in financial estimates or recommendations by securities analysts; . conditions or trends in the Internet and online commerce industries; . changes in the market valuations of other Internet, online service or software companies; . our announcements of significant acquisitions, strategic partnerships, joint ventures or capital commitments; . additions or departures of key personnel; . sales of our common stock; . general market conditions; and . other events or factors, many of which are beyond our control. 18 In addition, the stock market in general, and the Nasdaq National Market and the market for Internet and technology companies in particular, have experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of these companies. These broad market and industry factors may materially and adversely affect our stock price, regardless of our operating performance. The trading prices of the stocks of many technology companies are at or near historical highs and reflect price-earnings ratios substantially above historical levels. These trading prices and price-earnings ratios may not be sustained. Future Sales of Our Common Stock May Depress Our Stock Price. Sales of a substantial number of shares of our common stock in the public market could adversely affect the market price of our common stock. After this offering and the consummation of our combination, 48,196,071 shares of our common stock will be outstanding. In the past 12 months, we completed two offerings of our common stock. All of the shares sold in these offerings are freely tradeable unless held by affiliates of InfoSpace.com. See "Shares Eligible for Future Sale." Certain Anti-Takeover Provisions May Affect the Price of Our Stock. Certain provisions of our Certificate of Incorporation and Bylaws and Washington and Delaware law could make it more difficult for a third party to acquire us, even if doing so would be beneficial to our stockholders. Also, if we receive a proposal from another company that could result in the acquisition of InfoSpace.com, our agreement with AOL requires us to negotiate with AOL before entertaining discussions with the other company. This provision could discourage companies other than AOL from presenting acquisition proposals to us and could delay, deter or prevent a change of control of us. See "Description of Capital Stock." 19 FORWARD-LOOKING STATEMENTS You should not rely on forward-looking statements in this prospectus. This prospectus contains forward-looking statements that involve risks and uncertainties. We use words such as "anticipates," "believes," "plans," "expects," "future," "intends," "may," "will," "should," "estimates," "predicts," "potential," "continue" and similar expressions to identify such forward-looking statements. These forward-looking statements include, but are not limited to, statements regarding our business and growth strategy, the expected benefits of our private label solutions for the content, community and commerce needs of our affiliates, advertisers and content providers, the expectation that AOL and its business divisions will meet certain contractual minimum commitments, the expectation that actual carriage fee payments under our agreements with AOL will exceed the sales and marketing expense recorded for the periods in which payments are made, future carriage fees, increased advertising and public relations expenditures, increased operating expenses and the reasons for such increases, expected operating losses, increased product development expenditures, increased costs of revenues, increased product development expenses, increased sales and marketing expenses, future levels of bad debt expense, increased general and administrative expenses, anticipated capital equipment expenditures, anticipated cash needs, the absence of material Year 2000 compliance problems and the time frame and cost of addressing any Year 2000 problems and the successful integration of technology acquired from Active Voice and INEX and the cost thereof. This prospectus also contains forward-looking statements attributed to third parties relating to their estimates regarding the growth of cerain markets. Forward-looking statements are subject to known and unknown risks, uncertainties and other factors that may cause our and the strategic Internet services industry's actual results, levels of activity, performance, achievements and prospects to be materially different from those expressed or implied by such forward-looking statements. These risks, uncertainties and other factors include, among others, those identified under "Risk Factors" and elsewhere in this prospectus. These forward-looking statements apply only as of the date of this prospectus. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. In light of these risks, uncertainties, and assumptions, the forward-looking events discussed in this prospectus might not occur. Our actual results could differ materially from those anticipated in these forward- looking statements for many reasons, including the risks faced by us described above and elsewhere in this prospectus. See "Risk Factors." 20 USE OF PROCEEDS Of the 746,392 shares of our common stock offered in this prospectus, we will issue approximately 408,227 shares of our common stock upon exchange or redemption of the exchangeable shares; we will receive no net cash proceeds upon the issuance of such shares. In addition, we will receive no net cash proceeds upon the conversion of the debentures convertible into shares of common stock being offered in this prospectus. We may receive up to approximately $4.8 million in net cash proceeds (assuming an exchange rate of Canadian dollars to U.S. dollars of approximately 0.67:1), subject to fluctuations in the exchange rate between Canadian dollars and U.S. dollars, in connection with the exercise of warrants to purchase shares of our common stock being offered in this prospectus. We will use these proceeds for general corporate purposes. DIVIDEND POLICY We have never declared or paid any cash dividends on our capital stock. We currently intend to retain any future earnings and therefore do not anticipate paying any cash dividends in the foreseeable future. PRICE RANGE OF COMMON STOCK Our common stock has been traded on the Nasdaq National Market under the symbol "INSP" since December 15, 1998, the date of our initial public offering. Prior to that time, there was no public market for our common stock. The following table sets forth, for the periods indicated, the high and low sales prices for our common stock as reported by the Nasdaq National Market.
High Low ------- ------- Fiscal Year Ended December 31, 1998: Fourth Quarter (from December 15, 1998)................... $ 26.00 $ 7.50 Fiscal Year Ending December 31, 1999: First Quarter............................................. $49.625 $ 14.25 Second Quarter............................................ $72.625 $ 35.25 Third Quarter (through August 30, 1999)................... $58.938 $38.125
On August 30, 1999 the last reported sale price for our common stock on the Nasdaq National Market was $45.00 per share. As of July 31, 1999, there were approximately 217 holders of record of our common stock. See "Risk Factors--Our Stock Price Has Been and May Continue to be Volatile." 21 CAPITALIZATION The following table sets forth our capitalization as of June 30, 1999. This table should be read in conjunction with our Consolidated Financial Statements and Notes thereto and "Management's Discussion and Analysis of Financial Condition and Results of Operations" included elsewhere in this prospectus.
June 30, 1999 ------------------ (in thousands, except share data) Stockholders' equity: Preferred Stock, $0.0001 par value per share; 15,000,000 shares authorized; no shares issued and outstanding...... $ -- Common Stock, $0.0001 par value per share; 200,000,000 shares authorized; 47,359,177 shares issued and outstanding.............................................. 5 Additional paid-in capital................................ 292,949 Accumulated deficit....................................... (15,588) Unearned warrants......................................... (2,719) Unearned compensation--stock options...................... (215) -------- Total stockholders' equity.............................. 274,432 -------- Total capitalization.................................. $274,432 ========
- -------- (1) Excludes as of June 30, 1999: . 5,624,561 shares of common stock issuable upon exercise of outstanding options at a weighted average exercise price of $6.89 per share; . 7,063,438 shares of our common stock issuable upon exercise of outstanding warrants at a weighted average exercise price of $3.39 per share; and . 5,016,736 shares of our common stock reserved for future issuance under our Restated 1996 Flexible Stock Incentive Plan and 1998 Employee Stock Purchase Plan. 22 SELECTED CONSOLIDATED FINANCIAL DATA (in thousands, except share and per share data) The following selected consolidated financial data should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations," our Consolidated Financial Statements and Notes thereto and other financial information included elsewhere in this prospectus. The selected consolidated statements of operations data for the period from March 1, 1996 (inception) to December 31, 1996, for the years ended December 31, 1997 and December 31, 1998 and the selected consolidated balance sheet data at December 31, 1997 and 1998 are derived from our audited consolidated financial statements, which have been audited by Deloitte & Touche LLP, independent auditors, as stated in their reports included elsewhere herein, and are included elsewhere in this prospectus. The selected consolidated statements of operations data for the six months ended June 30, 1998 and 1999 and the selected consolidated balance sheet data as of June 30, 1999 are derived from unaudited consolidated financial statements included elsewhere in this prospectus. The selected consolidated balance sheet data at December 31, 1996 have been derived from audited consolidated financial statements that have not been included herein.
Year Ended Six Months Ended March 1 to December 31, June 30, December 31, ------------------------ ------------------------ 1996 1997 1998 1998 1999 ------------ ----------- ----------- ----------- ----------- Consolidated Statements of Operations Data: Revenues.............. $ 199 $ 1,685 $ 9,414 $ 2,855 $ 11,875 Cost of revenues...... 97 400 1,605 499 1,960 ----------- ----------- ----------- ----------- ----------- Gross profit........ 102 1,285 7,809 2,356 9,915 Operating expenses: Product development........ 109 213 599 148 537 Sales and marketing.......... 231 841 5,541 952 10,197 General and administrative..... 164 480 3,001 833 3,387 Amortization of intangibles........ -- 64 710 121 604 Acquisition and related charges.... -- -- 2,800 2,800 4,913 Other--non-recurring charges............ -- 137 4,500 240 210 ----------- ----------- ----------- ----------- ----------- Total operating expenses......... 504 1,735 17,151 5,094 19,848 ----------- ----------- ----------- ----------- ----------- Loss from operations.. (402) (450) (9,342) (2,738) (9,933) Other income, net..... 21 21 410 43 4,287 Equity in loss from joint venture........ -- -- (125) -- (76) ----------- ----------- ----------- ----------- ----------- Net loss.............. $ (381) $ (429) $ (9,057) $ (2,695) $ (5,722) =========== =========== =========== =========== =========== Basic and diluted net loss per share....... $ (0.02) $ (0.02) $ (0.33) $ (0.12) $ (0.13) =========== =========== =========== =========== =========== Shares used in computing basic and diluted net loss per share................ 18,560,326 21,996,314 27,120,536 23,144,812 44,680,837 =========== =========== =========== =========== ===========
December 31, December 31, --------------- June 30, 1996 1997 1998 1999 ------------ ------ -------- -------- Consolidated Balance Sheet Data: Cash and short-term investments......... $ 690 $ 324 $ 86,750 $167,627 Working capital......................... 825 543 85,780 175,891 Total assets............................ 1,072 1,398 102,258 281,143 Total stockholders' equity.............. 1,020 1,028 94,248 274,432
23 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS You should read the following discussion and analysis in conjunction with "Selected Consolidated Financial Data" and our Consolidated Financial Statements and Notes thereto included elsewhere in this prospectus. In addition to historical information, the following discussion contains certain forward- looking statements that involve known and unknown risks and uncertainties, such as statements of our plans, objectives, expectations and intentions. You should read the cautionary statements made in this prospectus as being applicable to all related forward-looking statements wherever they appear in this prospectus. Our actual results could differ materially from those discussed in the forward- looking statements. Factors that could cause or contribute to such differences include, but are not limited to, those discussed below and in the section entitled "Risk Factors," as well as those discussed elsewhere herein. See "Forward-Looking Statements." Overview InfoSpace.com is a leading Internet infrastructure company that provides private label solutions for content, community and commerce to Web sites and Internet appliances. We began operations in March 1996. During the period from inception through December 31, 1996, we had insignificant revenues and were primarily engaged in the development of technology for the aggregation, integration and distribution of Internet content and the hiring of employees. In 1997, we expanded our operations, adding business development and sales personnel in order to capitalize on the opportunity to generate Internet advertising revenues. We began generating material revenues in 1997 through the sale of advertising on Web pages that deliver our content services. We currently derive substantially all of our revenues from national and local advertising, promotions, including promotions for content, community and commerce, and, to a lesser extent, non-advertising based private label solutions. National advertising consists of banner advertisements and other forms of national advertising that are sold on a cost per thousand impressions, or CPM, basis on Web pages that deliver our content, community and commerce services. Examples of banner advertisements include: . mass market placements for general rotation; . targeted placements for specified audiences; and . targeted placements for specified audiences in specified geographic areas. The most common of our nonbanner advertisements are known as "button advertisements" and "textlinks," but also include customized advertising solutions developed for specific advertisers. We recognize revenues from national advertising ratably over the related contractual term. We share a portion of our advertising revenues with affiliates whose sites incorporate our content, community and commerce services where advertisements are placed. National advertising agreements generally have terms of less than six months and guarantee a minimum number of impressions. CPMs vary depending on the type of advertisement purchased and the specificity of targeting requested. Our rates for button advertisements and textlinks are lower than those for banner advertisements. Actual CPMs depend upon a variety of factors, including, without limitation, the degree of targeting, the duration of the advertising contract and the number of impressions purchased, and are often negotiated on a case-by-case basis. Because of these factors, actual CPMs may fluctuate. Our guarantee of minimum levels of impressions exposes us to potentially significant financial risks, including the risk that we may fail to deliver required minimum levels of user impressions, in which case we typically continue to provide advertising without additional compensation until such levels are met. See "Risk Factors--We Rely on Advertising and Promotion Revenues." Local advertising consists of revenues generated from cooperative sales relationships with leading independent yellow pages publishers, media companies and direct marketing companies to sell local Internet 24 yellow pages advertising on our yellow pages directory services in the form of enhanced yellow pages listings. The local sales forces of these companies are empowered to sell Internet yellow pages advertising on our directory services, which are bundled with the traditional print advertising they sell. Internet yellow pages advertising agreements provide for terms of one year, with pricing comparable to print yellow pages advertising, typically paid in monthly installments. Costs to local advertisers generally range from $50 to $300 or greater per year, depending on the types of enhancements selected. Agreements for our cooperative sales relationships typically have terms of one to five years and provide for revenue sharing, which varies from relationship to relationship. Typically, we receive guaranteed minimum levels of payments based on floor prices of the listing enhancements that are sold. We recognize revenue from these guaranteed minimum payments ratably over the related contract term and recognize revenues earned above the guaranteed minimum payment over the term that the local advertising is provided. In addition to our CPM-based national advertising, we also sell promotions. Promotions are integrated packages of advertising that bundle such features as button and textlink advertisements, sponsorships of specific categories of content within our private label solutions and electronic commerce features. Promotions also include co-branding and distribution services that we provide to content providers, for which we receive carriage revenues. Promotion arrangements vary in terms and duration, but they generally have longer terms than arrangements for our CPM-based advertising. The fee arrangements are individually negotiated with advertisers and are based on the range and the extent of customization. These arrangements typically include minimum monthly payments. If the advertiser offers an electronic commerce opportunity in its promotion, we may derive transaction revenues based on the level of transactions made through the promotion. Under our non-advertising based private label solution arrangements, affiliates pay us on a fixed fee, per-click or page view basis while typically keeping any revenues generated by our content, community and commerce solutions. These arrangements vary in terms and duration, and the fees are individually negotiated with the affiliate. In order to evaluate and forecast revenue derived from these different revenue sources, the principal revenue metric we utilize is productivity per page. This metric measures our ability to generate revenue from traffic. We calculate productivity per thousand pages by dividing total revenue for a reporting period by the total number of page views in the same period, then multiplying by 1,000. Productivity per page will vary due to the delay in generating revenue from our increasing traffic. For the six-month period ended June 30, 1999, traffic totaled 2.6 billion page views. Revenue per thousand page views was $4.81 for the second quarter of 1999, an increase of $0.58 from $4.23 for the first quarter of 1999. We expect revenue per thousand page views for the remainder of 1999 to range between $3.75 and $5.00. In May 1997, we acquired Yellow Pages on the Internet, LLC, or YPI, a Washington limited liability company that provided Internet yellow pages directory information. In June 1998, we acquired Outpost, a Washington corporation engaged primarily in electronic commerce through the sale of cards and gifts via the Internet. These acquisitions were accounted for under the purchase method and, accordingly, are included in our operating results from the date of acquisition forward. The impact of the YPI acquisition on our consolidated statement of operations was not substantial. The acquisition of Outpost resulted in a write-off of in-process research and development, goodwill and core technology amortization and product development costs. Revenues resulting from the Outpost acquisition have been negligible. In July 1998, we entered into a joint venture agreement with Thomson to form TDL InfoSpace to replicate our content, community and commerce services in Europe. TDL InfoSpace has targeted the United Kingdom as its first market, and content services were launched in the third quarter of 1998. Under the joint venture agreement, Thomson will provide its directory information to TDL InfoSpace and sell Internet yellow pages advertising for the joint venture through its local sales forces. We also will license our technology and provide hosting services to TDL InfoSpace. Thomson and we each purchased a 50% interest in TDL InfoSpace and are required to provide reasonable working capital to TDL InfoSpace. As of June 30, 1999, we had contributed $496,000 to the joint venture. We account for our investment in the joint venture 25 under the equity method. For the year ended December 31, 1998, we recorded a loss from the joint venture of $125,000. For the six months ended June 30, 1999 we recorded a loss from the joint venture of $76,000. Effective as of July 1, 1998, we entered into two trademark license agreements with Netscape to license two of Netscape's trademarks for a one-time nonrefundable license fee. We capitalized the trademark license fees and are amortizing them over one year, the expected useful life of the trademarks. These trademarkes were fully amortized as of June 30, 1999. On August 24, 1998, we entered into agreements with AOL to provide white pages directory and classifieds information services to AOL. Pursuant to the white pages directory services agreement, we have agreed to provide to AOL white pages listings and directory services. We are required to pay to AOL a quarterly carriage fee, the retention of which is conditioned on the quarterly achievement of a minimum number of searches on the AOL white pages site. We pay the quarterly carriage fee in advance at the beginning of the quarter in which the searches are expected to occur and record the carriage fee as a prepaid expense in the quarter it is paid. The fee is refundable if we do not achieve the minimum number of searches on the AOL white pages site for such quarter. In addition, AOL has guaranteed us a minimum number of searches over the term of the agreement. If AOL does not deliver the guaranteed minimum number of searches over the term of the agreement, AOL will pay us a cash penalty payment. We will share with AOL revenues generated by advertising on our white pages directory services delivered to AOL. We are entitled to a greater percentage of advertising revenue than is AOL if the amount of revenue we receive is less than the carriage fees paid to AOL. We have agreed to provide white pages directory services to AOL for a three- year term beginning on November 19, 1998, which term may be extended for four additional one-year terms at AOL's discretion. AOL may terminate the agreement for any reason after 18 months or at any time upon the acquisition by AOL of a competing white pages directory services business. In the event of any such termination, AOL is required to pay us a termination fee. In addition, without the payment of a termination fee, AOL has the right to terminate the agreement if we undergo a change of control. We have agreed to provide classifieds information services to AOL for a two- year term, with up to three one-year extensions at AOL's discretion. Pursuant to this agreement, we supply classifieds information services to AOL's proprietary service, AOL.com, its CompuServe and Digital City divisions and its Netscape Communications subsidiary. AOL has agreed to pay us a quarterly fee and will share with us revenues generated from payments by individuals and commercial listing services for listings on the AOL classifieds service. Pursuant to the terms of these agreements, we have granted AOL the right to negotiate with us exclusively and in good faith for a period of 30 days with respect to proposals or discussions that would result in a sale of a controlling interest of us or other merger, asset sale or other disposition that effectively results in a change of control of us. In connection with the agreements, on August 24, 1998, we issued to AOL warrants to purchase up to 1,979,832 shares of our common stock. The warrants vest in 16 equal quarterly installments over four years, conditioned on the delivery by AOL of a minimum number of searches each quarter on our white pages directory service. The warrants are vested as to 123,738 shares on February 11, 1999, 123,740 shares on May 1, 1999, and 123,740 shares on August 1, 1999. The warrants have an exercise price of $6.00 per share. We will account for revenue and revenue sharing under the agreements with AOL under our existing revenue recognition policies described in our Notes to Consolidated Financial Statements. AOL provided in excess of the minimum number of searches for the six months ended May 31, 1999, and we expect AOL to meet the minimum number of searches each subsequent quarter. Accordingly, the total carriage fee payments to be made under the white pages directory services agreement will be recognized ratably over the term of the agreement as sales and marketing expense. However, if AOL does not deliver the minimum 26 searches on the AOL white pages during that quarter, then AOL is obligated to refund the quarterly carriage fee paid for that specific quarter, in which case we would credit prepaid expense and reduce the total cost of the white pages directory services agreement by the amount of the refund. The adjusted total cost of the agreement would be recognized ratably over the remaining term of the agreement as sales and marketing expense, which term would include the quarter in which AOL did not deliver the minimum number of searches. For at least the first two years of the white pages agreement, we expect that actual carriage fee payments will exceed the sales and marketing expense recorded for the quarter in which the payment is made. As such, we expect to experience increases in our prepaid expense account during this time. Any termination fee paid to us by AOL will be recognized as revenue when paid. The warrants will be valued under the fair value method, as required under Statement of Financial Accounting Standards ("SFAS") 123, and amortized ratably over the four-year vesting period. On June 30, 1999 we entered into an agreement with AOL to provide white pages directory services to AOL's CompuServe and Digital City divisions and its Netscape Communications subsidiary for a two-year term. Pursuant to the agreement, we are required to pay to AOL a bi-annual carriage fee. In return, AOL has agreed to deliver a certain number of searches of our white pages directory services in each year of the agreement. If AOL delivers a greater number of searches in either or both of the years, we are required to pay AOL additional fess on a cost per search basis. In the event that AOL delivers a lesser number of searches as of the end of the intial two-year term of the agreement, AOL will extend the term for six months or until the shortfall is made up, whichever occurs first. We will account for revenue and revenue sharing under the agreements with AOL under our existing revenue recognition policies described in our Notes to Consolidated Financial Statements. The total carriage fee payments to be made under the white pages directory services agreement will be recognized based on actual searches delivered over the term of the agreement as sales and marketing expense. We anticipate that carriage fees paid to certain affiliates to include our content services on their Web sites will continue for the foreseeable future, and we may also pay such carriage fees to other affiliates under arrangements similar to those with AOL. Further, we incurred material additional costs in the second quarter of 1999, and anticipate incurring substantially larger amounts for the remainder of 1999 and thereafter, for more traditional forms of advertising and public relations. See "--Quarterly Results of Operations." We have incurred losses since our inception and, as of June 30, 1999, had an accumulated deficit of approximately $15.6 million. For the six months ended June 30, 1999, our net loss totaled $5.7 million, including $4.9 million in acquisition and related charges associated with the acquisition of the MyAgent Technology from Active Voice. See "--MyAgent Technology Acquisition." For the year ended December 31, 1998, our net loss totaled $9.1 million, including a $2.8 million write-off associated with our acquisition of Outpost and a $4.5 million cash payment to settle a lawsuit filed by a former employee. See "-- Technology from the Outpost Acquisition" and "Business--Legal Proceedings." We believe that our future success will depend largely on our ability to continue to offer content, community and commerce solutions that are attractive to our existing and potential future affiliates. Accordingly, we plan to increase significantly our operating expenses in order to, among other things: . expand our affiliate network, which may require us to pay additional carriage fees to certain affiliates; . expand our sales and marketing operations and hire more salespersons; . increase our advertising and promotional activities; . develop and upgrade our technology and purchase equipment for our operations and network infrastructure; . expand internationally; and . expand our content, community and commerce offerings. 27 Accordingly, we expect to incur significant operating losses on a quarterly basis in the future. In light of the rapidly evolving nature of our business and limited operating history, we believe that period-to-period comparisons of our revenues and operating results are not necessarily meaningful, and you should not rely upon them as indications of future performance. Although we have experienced sequential quarterly growth in revenues over the past six quarters, we do not believe that our historical growth rates are necessarily sustainable or indicative of future growth. Historical Results of Operations The following table sets forth the historical results of our operations expressed as a percentage of total revenues.
Six Months Year Ended Ended March 1 to December 31, June 30, December 31, ------------- ------------- 1996 1997 1998 1998 1999 ------------ ------ ----- ----- ----- (unaudited) Revenues......................... 100.0% 100.0% 100.0% 100.0% 100.0% Cost of revenues................. 48.5 23.7 17.0 17.5 16.5 ------- ------ ----- ----- ----- Gross profit................... 51.5 76.3 83.0 82.5 83.5 Operating expenses: Product development............ 55.0 12.6 6.4 5.2 4.5 Sales and marketing............ 115.8 50.0 58.9 33.3 85.8 General and administrative..... 82.2 28.5 31.9 29.2 28.5 Amortization of intangibles.... -- 3.8 7.5 4.2 5.1 Acquisition and related charges....................... -- -- 29.7 98.1 41.4 Other--non-recurring charges... -- 8.1 47.8 8.4 1.8 ------- ------ ----- ----- ----- Total operating expenses..... 253.0 103.0 182.2 178.4 167.1 ------- ------ ----- ----- ----- Loss from operations............. (201.5) (26.7) (99.2) (95.9) (83.6) Other income, net................ 10.6 1.3 4.4 1.5 36.1 Equity in loss from joint venture......................... -- -- (1.3) -- (.6) ------- ------ ----- ----- ----- Net loss......................... (190.9)% (25.4)% (96.1)% (94.4)% (48.1)% ======= ====== ===== ===== =====
Results of Operations for the Years ended December 31, 1996, 1997, and 1998 and Six Months ended June 30, 1998 and 1999 Revenues. We currently derive substantially all of our revenues from advertising, which includes national, local and classifieds, promotions, which includes content carriage and syndication, and to a lesser extent, commerce transactions and technology licensing. Revenues were $199,000 for the period ended December 31, 1996, $1.7 million for the year ended December 31, 1997 and $9.4 million for the year ended December 31, 1998. The increases year to year are due primarily to increased expansion of our affiliate network, increased traffic to our affiliate network that results in increased page views, and increased use of our content, community and commerce services. Additionally, in 1997, we began selling promotion arrangements, including content carriage, syndication, and commerce, that contributed to the increase in revenues. Revenues were $2.9 million for the six months ended June 30, 1998 and $11.9 million for the six months ended June 30, 1999. The increases are primarily due to increased expansion of our affiliate network, which now consists of more than 1,800 Web sites and Internet appliances, increased traffic to our affiliate network that results in increased page views, increased use of our content, community and commerce services, as well as larger and longer term agreements with certain advertisers and affiliates. 28 A portion of our revenues represents barter transactions resulting from our exchange with other companies of banner advertising space for reciprocal banner advertising space or for content licenses. Barter revenues totaled $853,000, or 9.1% of revenues for the year ended December 31, 1998, and $317,000, or 2.7% of revenues for the six months ended June 30, 1999. We have experienced, and expect to continue to experience, seasonality in our business, with reduced user traffic on our affiliate network expected during the summer and year-end vacation and holiday periods, when usage of the Internet has typically declined. Advertising sales in traditional media, such as broadcast and cable television, generally decline in the first and third quarters of each year. Depending on the extent to which the Internet and commercial online services are accepted as an advertising medium, seasonality in the level of advertising expenditures could become more pronounced for Internet-based advertising. Seasonality in Internet service usage and advertising expenditures is likely to cause quarterly fluctuations in our results of operations. Cost of Revenues. Cost of revenues consists of expenses associated with the enhancement, maintenance and support of our content, community and commerce services, including direct personnel expenses, communication costs such as high-speed Internet access with dedicated DS-3 communication lines, server equipment depreciation, and license fees related to third-party content. For the year ended December 31, 1997, cost of revenues also includes amortization of purchased advertising agreements. Cost of revenues were $97,000, or 48.5% of revenues, for the period ended December 31, 1996 as compared to $400,000, or 23.7% of revenues, for the year ended December 31, 1997 and approximately $1.6 million, or 17.0% of revenues, for the year ended December 31, 1998. Cost of revenues was $499,000, or 17.5% of revenues for the six months ended June 30, 1998. This compares to $1.96 million for the six months ended June 30, 1999, or 16.5% of revenues. The absolute dollar increases from year to year are primarily attributable to personnel, content licenses and communication system costs incurred in order to support greatly increased delivery of our content, community and commerce solutions. We expect the absolute dollars spent on personnel, enhanced content and expanded communication backbone will continue to increase for the foreseeable future. We currently anticipate cost of revenues will remain relatively constant as a percentage of revenues in the range of high teens to low twenties for the remainder of 1999. Product Development Expenses. Product development expenses consist principally of personnel costs, and include expenses for research, design and development of the proprietary technology we use to aggregate, integrate and distribute our content, community and commerce services. Product development expenses were $109,000, or 55.0% of revenues, for the period ended December 31, 1996 as compared to $213,000, or 12.6% of revenues, for the year ended December 31, 1997 and $599,000, or 6.4% of revenues, for the year ended December 31, 1998. These expenses have declined significantly as a percentage of revenues due to our rapid revenue growth. For the six months ended June 30, 1998, product development expenses were $148,000, or 5.2% of revenues, compared to $537,000, or 4.5% of revenues for the six months ended June 30, 1999. The year- to-year increases in absolute dollars are primarily attributable to increases in engineering personnel needed for continued development of our products and service offerings. We believe that significant investments in technology are necessary to remain competitive. Accordingly, we expect product development expenses to continue to increase in absolute dollars as we hire additional engineering personnel who will develop and enhance our proprietary technology. On January 1, 1999 we adopted Statement of Position 98-1 (SOP 98-1), Accounting for the Costs of Computer Software Developed or Obtained for Internal Use, which requires certain product development costs to be capitalized and amortized over future periods, which, prior to the adoption of SOP 98-1, were expensed. For the six months ended June 30, 1999, we capitalized approximately $143,000 of product development costs. Sales and Marketing Expenses. Sales and marketing expenses consist primarily of salaries and related benefits for sales and marketing personnel, traditional advertising and promotional expenses, trademark licensing and carriage fees and distribution revenue share paid to certain affiliates to include our content 29 services on their Web sites, sales office expenses and travel expenses. Sales and marketing expenses were $231,000, or 115.8% of revenues, for the period ended December 31, 1996 as compared to $841,000, or 50.0% of revenues, for the year ended December 31, 1997 and approximately $5.5 million, or 58.9% of revenues, for the year ended December 31, 1998. Sales and marketing expenses were $952,000, or 33.3% or revenues for the six months ended June 30, 1998. This compares to $10.2 million, or 85.8% or revenues for the six months ended June 30, 1999. The increases from the prior year were primarily due to trademark licensing and carriage fees paid to certain affiliates under agreements entered into during the third and fourth quarters of 1998, the launching of our first advertising campaign during the second quarter of 1999, expansion of our business development group in Redmond and expansion of our sales offices in San Francisco and New York. General and Administrative Expenses. General and administrative expenses consist primarily of salaries, fees for professional services, occupancy and general office expenses, B&O tax paid to the State of Washington on gross revenues and franchise tax paid to the State of Delaware on total assets and outstanding shares, and bad debt expense. General and administrative expenses were $164,000, or 82.2% of revenues, for the period ended December 31, 1996 as compared to $480,000, or 28.5% of revenues, for the year ended December 31, 1997 and approximately $3.0 million, or 31.9% of revenues, for the year ended December 31, 1998, primarily due to increased staffing levels necessary to manage and support our expanding operations and expansion of our facilities. For the six months ended June 30, 1998, general and administrative expenses were $833,000, or 29.2% of revenues, compared to $3.4 million, or 28.5% of revenues for the six months ended June 30, 1999. We anticipate that general and administrative expenses will continue to increase in absolute dollars due to a number of factors including the expected hiring of additional personnel to support expanded operations, and higher occupancy expense associated with a new facility planned for early 2000. We expect general and administrative expenses to be in the range of low to mid thirties as a percentage of revenues during the remainder of 1999. Amortization of Intangibles. Amortization of intangibles includes amortization of goodwill, core technology, purchased domain names, trademark and assembled workforce. As part of the June 1999 MyAgent technology acquisition, we recorded intangible assets related to goodwill, core technology and acquired workforce in the amount of $14.2. These assets are being amortized over a five-year period beginning in July 1999. As part of the Outpost Network, Inc. acquisition in the second quarter of 1998, we recorded intangible assets related to goodwill, core technology and acquired workforce in the amount of $5.8 million. These intangibles are being amortized over a five-year period which began in June 1998. In the event we complete additional acquisitions, expenses relating to the amortization of intangibles could increase in the future. Acquisition and Related Charges. Acquisition and other related charges consists of in-process research and development and other one-time charges related directly to acquisitions. In the second quarter of 1999, we recorded $4.91 million in acquisition and other related charges in connection with the purchase of the MyAgent technology. See "--MyAgent Acquisition." In the second quarter of 1998, we recorded $2.8 million in acquisition and other related charges as part of the Outpost acquisition. See "--Technology from the Outpost Acquisition." In the event we complete additional acquisitions, we could incur additional acquisition and related charges in the future. Other-non-recurring. Other-non-recurring charges in 1998 and 1999 consists of costs associated with litigation settlements. On February 22, 1999, we reached a settlement with a former employee. Under the terms of the settlement, the former employee received a cash payment of $4.5 million. We accrued a liability of $240,000 for estimated settlement costs in the quarter ended June 30, 1998. We recorded an expense of $4,260,000 for the difference between the accrued liability and the actual settlement amount in the quarter ended December 31, 1998. On July 23, 1999, we settled a patent infringment claim in exchange for a lump sum royalty payment of $209,500. This settlement expense was accrued on June 30, 1999. 30 Other Income, Net. Other income consists primarily of interest income for all periods. Other income was $21,000 for the period ended December 31, 1996, $21,000 for the year ended December 31, 1997, $411,000 for the year ended December 31, 1998, $43,000 for the six months ended June 30, 1998, and $4.3 million for the six months ended June 30, 1999, primarily due to interest earned on higher average cash balances resulting from private financings in July and August of 1998, the net proceeds from our initial public offering completed on December 15, 1998, and the net proceeds from our follow-on offering, which closed April 6, 1999. Equity in Loss from Joint Venture. Equity in loss from joint venture consists of losses attributable to our 50% interest in TDL InfoSpace, our joint venture with Thomson Directories Limited in the United Kingdom. Beginning in the quarter ended September 30, 1998, and continuing through December 31, 1998, we recorded joint venture losses totaling approximately $125,000 in this joint venture, due primarily to start-up operating costs associated with the venture. For the six months ended June 30, 1999 we recorded a loss from the joint venture of $76,000, due primarily to direct selling costs. Provision for Income Taxes. Net operating losses have been incurred to date on a cumulative basis, and no tax benefit has been recorded, as sufficient uncertainty exists regarding unrealizability of the deferred tax assets. Net Loss. Our losses increased from $381,000 for the period ended December 31, 1996 to $429,000 for the year ended December 31, 1997 and to $9.1 million for the year ended December 31, 1998. This loss includes the $2.8 million write-off of in-process research and development from the Outpost acquisition and the $4.5 million expense to settle a lawsuit filed by a former employee. Our losses increased from $2.7 million for the six months ended June 30, 1998 to $5.7 million for the six months ended June 30, 1999. This loss includes the $4.9 million write-off of in-process research and development from the MyAgent Technology acquisition. Our cumulative losses sustained since inception total $15.6 million. Liquidity and Capital Resources From our inception in March 1996 through May 1998, we funded operations with approximately $1.5 million in equity financing and, to a lesser extent, from revenues generated for services performed. In May 1998, we completed a $5.1 million private placement of our common stock, and in July and August 1998, we completed an additional private placement of our common stock for $8.2 million. Sales of our common stock to employees pursuant to our 1998 Stock Purchase Rights Plan also raised $1.7 million in July 1998. Our initial public offering in December 1998 yielded net proceeds of $77.8 million and a follow-on public offering in April 1999 yielded net proceeds of $185.1 million. As of June 30, 1999, we had cash, cash equivalents and short-term investments of $167.6 million and long-term investments of $70.9 million. Net cash used by operating activities was $462,000 from our inception in March 1996 through December 31, 1996, $202,000 in the year ended December 31, 1997 and $978,000 in the year ended December 31, 1998. Cash used in operating activities from inception through December 31, 1998 consisted primarily of net operating losses and increases in accounts receivable, which were partially offset by increases in accrued expenses and accounts payable. Net cash provided (used) by operating activities was $597,000 for the six months ended June 30, 1998 and $(3.9 million) for the six months ended June 30, 1999. Cash used in operating activities for the six months ended June 30, 1999 was primarily comprised of net operating losses, increases in accounts receivable and prepaid expenses and other assets, and decreases in accounts payable and accrued expenses. These uses of cash were partially offset with the write-off of in- process research and development. Net cash used by investing activities was $219,000 in the period from inception through December 31, 1996, $164,000 in the year ended December 31, 1997 and $78.6 million in the year ended December 31, 1998. Cash used in investing activities consists primarily of short-term investments of net proceeds from our initial public offering and private placements of common stock and, to a lesser extent, from purchases of 31 trademark licenses, businesses and purchase of property and equipment. Cash provided by financing activities consists of net proceeds from our initial public offering and, to a lesser extent, from private placements of common stock. Net cash used by investing activities for the six months ended June 30, 1998 was $385,000 and $87.4 million for the six months ended June 30, 1999. Net cash used by investing activities for the six months ended June 30, 1999 was primarily comprised of business acquisitions, securities investments, other investments and note receivable. The change in securities investments is primarily a result of investing proceeds from our follow-on offering in short and long-term investments. Net cash of $93.9 million provided by financing activities for the year ended December 31, 1998 was primarily from proceeds received from private placements in May, July and August and from our initial public offering in December 1998. Net cash of $185.4 million provided by financing activities for the six months ended June 30, 1999 was primarily from proceeds received in the follow-on offering in April 1999. We anticipate that we will spend up to $1.0 million for capital equipment in the remainder of 1999. We have also entered into various agreements that provide for us to make payments for carriage agreements of $4.2 million for the remainder of 1999 and for carriage fees of $7.4 million for the period from 2000 through 2001. At June 30, 1999, we had $238.5 million in cash and investments. We plan to use this cash for strategic investments and acquisitions, investments in internally developed technology and advertising and marketing initiatives. We believe that existing cash balances, cash equivalents and cash generated from operations will be sufficient to meet our anticipated cash needs for working capital and capital expenditures for at least the next 12 months. However, the underlying assumed levels of revenues and expenses may not prove to be accurate. We may seek additional funding through public or private financings or other arrangements prior to such time. Adequate funds may not be available when needed or may not be available on favorable terms. If we raise additional funds by issuing equity securities, dilution to existing stockholders will result. If funding is insufficient at any time in the future, we may be unable to develop or enhance our products or services, take advantage of business opportunities or respond to competitive pressures, any of which could harm our business. See "Risk Factors--We May Require Additional Funding." 32 Quarterly Results of Operation The following table sets forth certain consolidated statements of operations data for our eight most recent quarters, as well as such data expressed as a percentage of revenues. We have derived this information from our unaudited consolidated financial statements. In management's opinion, we have prepared this unaudited information on the same basis as the audited annual consolidated financial statements, and this information includes all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation for the quarters presented. You should read this information in conjunction with our Consolidated Financial Statements and Notes thereto included elsewhere in this prospectus. The operating results for any quarter are not necessarily indicative of results for any future period.
March 31, June 30, September 30, December 31, March 31, June 30, 1998 1998 1998 1998 1999 1999 --------- -------- ------------- ------------ --------- -------- (in thousands) Revenues................ $1,015 $ 1,840 $2,519 $ 4,040 $5,142 $ 6,733 Cost of revenues........ 212 287 474 632 833 1,127 ------ ------- ------ ------- ------ ------- Gross profit.......... 803 1,553 2,045 3,408 4,309 5,606 Operating expenses: Product development... 50 99 156 295 196 342 Sales and marketing... 446 506 1,570 3,019 3,849 6,348 General and administrative....... 310 523 953 1,215 1,672 1,715 Amortization of intangibles.......... 14 107 293 296 299 305 Acquisition and related charges...... 0 2,800 0 0 0 4,913 Other--non-recurring charges.............. 0 240 0 4,260 0 210 ------ ------- ------ ------- ------ ------- Total operating expenses........... 820 4,275 2,972 9,085 6,016 13,833 ------ ------- ------ ------- ------ ------- Loss from operations.... (17) (2,722) (927) (5,677) (1,707) (8,227) Other income, net....... 5 38 110 259 1,071 3,217 Equity in loss from joint venture.......... 0 0 (76) (49) (70) (6) ------ ------- ------ ------- ------ ------- Net loss................ $ (12) $(2,684) $ (893) $(5,467) $ (706) $(5,016) ====== ======= ====== ======= ====== ======= March 31, June 30, September 30, December 31, March 31, June 30, 1998 1998 1998 1998 1999 1999 --------- -------- ------------- ------------ --------- -------- (as a percentage of revenues) Revenues................ 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% Cost of revenues........ 20.9 15.6 18.8 15.6 16.2 16.7 ------ ------- ------ ------- ------ ------- Gross profit.......... 79.1 84.4 81.2 84.4 83.8 83.3 Operating expenses: Product development... 4.9 5.4 6.2 7.3 3.8 5.1 Sales and marketing... 43.9 27.5 62.3 74.7 74.9 94.3 General and administrative....... 30.5 28.4 37.8 30.1 32.5 25.5 Amortization of intangibles.......... 1.4 5.8 11.6 7.3 5.8 4.5 Acquisition and related charges...... 0.0 152.2 0.0 0.0 0.0 73.0 Other--non-recurring charges.............. 0.0 13.0 0.0 105.4 0.0 3.1 ------ ------- ------ ------- ------ ------- Total operating expenses........... 80.7 232.3 117.9 224.8 117.0 205.5 ------ ------- ------ ------- ------ ------- Loss from operations.... (1.6) (147.9) (36.7) (140.4) (33.2) (122.2) Other income, net....... 0.5 2.1 4.4 6.4 20.8 47.8 Equity in loss from joint venture.......... 0.0 0.0 (3.0) (1.2) (1.4) (0.1) ------ ------- ------ ------- ------ ------- Net loss................ (1.1)% (145.9)% (35.3)% (135.2)% (13.8)% (74.5)% ====== ======= ====== ======= ====== =======
33 Factors Affecting Quarterly Results of Operations Our financial results have varied on a quarterly basis and are likely to fluctuate substantially in the future. These fluctuations may be caused by several factors, many of which are beyond our control. These factors include: . the addition or loss of affiliates; . variable demand for our private label solutions by our affiliates; . the cost of acquiring and the availability of content and commerce information; . the overall level of demand for content, community and commerce services; . our ability to attract and retain advertisers and content providers; . seasonal trends in Internet usage and advertising placements; . the amount and timing of fees we pay to our affiliates to include our content, community and commerce solutions on their Web sites; . the productivity of our direct sales force and the sales forces of the RBOCs, independent yellow pages publishers, media companies and direct marketing companies that sell local Internet yellow pages advertising for us; . the amount and timing of increased expenditures for expansion of our operations, including the hiring of new employees, capital expenditures and related costs; . our ability to continue to enhance, maintain and support our technology; . the result of litigation that is currently ongoing against InfoSpace.com, or any litigation that is filed against us in the future; . our ability to attract and retain personnel; . the introduction of new or enhanced services by us or our affiliates, or other companies that compete with us or our affiliates; . price competition or pricing changes in Internet advertising and Internet services, such as ours; . technical difficulties, system downtime, system failures or Internet brown-outs; . political or economic events and governmental actions affecting Internet operations or content; and . general economic conditions and economic conditions specific to the Internet. If one or more of these factors or other factors occur, our business could suffer. In addition, because InfoSpace.com only began operations in March 1996, and because the market for Internet information infrastructure services such as ours is new and evolving, it is very difficult to predict future financial results. We plan to significantly increase our sales and marketing, research and development and general and administrative expenses in the balance of 1999. Our expenses are partially based on our expectations regarding future revenues, and are largely fixed in nature, particularly in the short term. As a result, if our revenues in a period do not meet our expectations, our financial results will likely suffer. 34 INEX Corporation Acquisition On August 13, 1999, we signed a definitive agreement to acquire Toronto-based INEX Corporation. Under the terms of the acquisition, which will be accounted for as a pooling of interests, we will exchange 900,000 shares of common stock for all of INEX's outstanding shares, warrants and options. The acquisition is expected to be completed in September, and is subject to customary conditions, including the receipt of regulatory approval and INEX shareholder approval. INEX Corporation Business Overview INEX Corporation is a software company that develops and markets Internet commerce solutions designed for the small and medium-sized business merchants. INEX recruits, develops and manages reseller channels and strategic partners with a comprehensive support program, sales and marketing tools and resources. These tactics are designed to help its licensees capitalize on the potential of the Internet commerce market, to assist the small and medium-sized business merchant realize the Internet commerce promise and for INEX to realize its mission to aggressively penetrate and capture market share in the small and medium-sized business markets. INEX Corporation ("Pre-INEX") was incorporated on June 28, 1996 and later amalgamated with Ack-Sys Inc. ("Ack-Sys") on February 5, 1997 to form INEX. Prior to the amalgamation, Ack-Sys held the rights to certain software that was licensed to Pre-INEX pursuant to a licensing agreement with Ack-Sys. The 100,000 shares of Pre-INEX that were held by Ack-Sys were cancelled and the 1,000,000 outstanding shares of Ack-Sys were exchanged on a 10:1 basis for common shares in INEX. INEX's fiscal year end is December 31. INEX currently has two product offerings that consist of: . INEX ezStore: a feature-rich, OEM solution that reseller channel licensees and alliance partners can lease for a nominal fee on a monthly basis to their small and medium-sized business merchants as part of a complete end-to-end electronic commerce hosting service offering; and . INEX Commerce Court Suite: an upgrade path from INEX ezStore for merchants requiring a more sophisticated and powerful electronic commerce solution. The full range of Internet commerce solutions can be offered by the OEM channel licensees or hosting service providers. Current partners of INEX include: Compaq Computer Corporation, 9Net Avenue, Inc., Concentric Corporation, Data Return Corporation, Maritime Telephone & Telegraph, Citibank, Cybercash, Inc., and SkipjackIC Merchant Services. The majority of revenues since inception have been derived from sales of the INEX Commerce Court Suite. INEX ezStore became commercially available in April 1999 and has not yet contributed substantially to INEX's revenues. This trend is expected to continue until the market penetration of INEX ezStore substantially increases. INEX has incurred losses since its inception and, as of December 31, 1998, had an accumulated deficit of approximately $4.1 million. For the year ended December 31, 1998, INEX's net loss totaled $2.8 million. 35 Historical Results of INEX Operations (in thousands)
Year Ended Six Months December 31, Ended June 30, ---------------- ---------------- 1997 1998 1998 1999 ------- ------- ------- ------- (unaudited) Revenue..................................... $ 57 $ 209 $ 54 $ 266 Cost of revenues............................ 19 30 10 26 ------- ------- ------- ------- Gross Profit.............................. 38 179 44 240 Operating expenses: Product development....................... 170 645 258 519 Sales and marketing....................... 635 744 312 743 General and administrative................ 464 1,574 874 598 ------- ------- ------- ------- Total operating expenses................ 1,269 2,963 1,444 1,860 ------- ------- ------- ------- Loss from operations........................ (1,231) (2,784) (1,400) (1,620) Other income (expense)...................... (1) 22 14 7 ------- ------- ------- ------- Net loss.................................... (1,232) (2,762) (1,386) (1,613) Deficit--Beginning of period................ (136) (1,368) (1,368) (4,130) ------- ------- ------- ------- Deficit--End of period...................... $(1,368) $(4,130) $(2,754) $(5,743) ======= ======= ======= =======
Results of INEX Operations Years ended December 31, 1997 and 1998 Revenues. Prior to the launch of INEX ezStore in April 1999, INEX derived substantially all of its revenues from the sale of INEX Commerce Court Suite through INEX's reseller channels. Revenues were $57,446 for the year ended December 31, 1997 and $208,910 for the year ended December 31, 1998. The year over year increase is primarily due to the increased number of reseller partners, increasing from approximately 10 in 1997 to 40 in 1998. Cost of Revenues. Cost of revenues consists of product packaging expenses and reseller marketing and training expenses. Costs of revenues were $18,932 or 33% of revenues, for the year ended December 31, 1997 and $29,720 or 14% of revenues, for the year ended December 31, 1998. The year over year percentage decrease is primarily attributed to the discontinued reseller co-op credit marketing program. Product Development Expenses. Product development expenses consist principally of personnel costs, and include expenses for research, design and development of the proprietary technology for INEX's Internet commerce product applications. Product development expenses were $170,459 or 297% of revenues, for the year ended December 31, 1997 and $644,965 or 308% of revenues, for the year ended December 31, 1998. The year to year increase in absolute dollars is primarily attributed to the increase in development staff needed for ongoing development of INEX's products. Sales and Marketing Expenses. Sales and marketing expenses consist primarily of salaries and related benefits for sales and marketing personnel, advertising and promotional expenses, public relations, tradeshow activities and travel expenses. Sales and marketing expenses were $635,502 or 1,106% of revenues, for the year ended December 31, 1997 and $744,636 or 356% of revenues, for the year ended December 31, 1998. Such expenses were incurred primarily to support our existing reseller channels and to generate greater awareness for INEX in the industry. General and Administrative Expenses. General and administrative expenses consist primarily of fees for professional services, occupancy and general office expenses and salaries and related benefits for administrative and executive staff. General and administrative expenses were $463,740 or 807% of revenues, 36 for the year ended December 31, 1997 and $1,573,980 or 753% of revenues, for the year ended December 31, 1998. The year to year increase in absolute dollars is primarily attributed to stock-based compensation expenses resulting from the repricing of senior executive options in June 1998. Other Income (Expense). Other income (expense) consists primarily of interest and investment income, interest expense and foreign exchange gains and losses. Other income (expense) was ($1,038) for the year ended December 31, 1997 and $22,146 for the year ended December 31, 1998. Net Loss. INEX's losses increased from $1.2 million for the year ended December 31, 1997 to $2.8 million for the year ended December 31, 1998. INEX's cumulative losses since inception total $4.1 million. Six Month Periods ended June 30, 1998 and 1999 Revenues. Revenues were $53,790 for the six month period ended June 30, 1998 and $266,111 for the six month period ended June 30, 1999. The year to year increase in absolute dollars is primarily due to the increase in the number of resellers of INEX Commerce Court Suite. There were approximately 25 as of June 30, 1998 and 70 as of June 30, 1999. Cost of Revenues. Cost of revenues were $9,677 or 18% of revenue, for the six month period ended June 30, 1998 and $25,555 or 10% of revenues, for the six month period ended June 30, 1999. The year to year decrease in percentage of revenues is primarily the result of lower per unit product packaging costs. Product Development Expenses. Product development expenses were $257,872 or 479% of revenues, for the six month period ended June 30, 1998 and $518,793 or 195% of revenues, for the six month period ended June 30, 1999. The year to year increase in absolute dollars is primarily attributed to the expanded development staff needed for the ongoing research, design and development of INEX's technology. Sales and Marketing Expenses. Sales and marketing expenses were $312,229 or 580% of revenues, for the six month period ended June 30, 1998 and $743,391 or 279% of the revenues, for the six month period ended June 30, 1999. The year to year increase in absolute dollars is primarily attributed to the increased sales and marketing activities needed to attract new partners and rollout the INEX ezStore product offering. General and Administrative Expenses. General and administrative expenses were $873,872 or 1,625% of revenues, for the six month period ended June 30, 1998 and $598,093 or 225% of revenues, for the six month period ended June 30, 1999. The year to year decrease in absolute dollars is primarily attributed to the stock-based compensation expense included in 1998. Other Income (Expense). Other income (expense) was $14,302 for the six month period ended June 30, 1998 and $7,296 for the six month period ended June 30, 1999. Net Loss. INEX's losses were $1,385,558 for the six month period ended June 30, 1998 and $1,612,425 for the six month period ended June 30, 1999. INEX has incurred losses since inception. Year 2000 Compliance Many currently installed computer systems and software products are coded to accept only two-digit entries in the date code field and cannot distinguish 21st century dates from 20th century dates. These date code fields will need to accept four digit entries to distinguish 21st century dates. As a result, many companies may need to upgrade, repair or replace their computer systems and software ("IT Systems") and other property and equipment not directly associated with IT Systems ("Non-IT Systems"), including ones with embedded technology such as microcontrollers, in order to comply with Year 2000 requirements. 37 InfoSpace.com We have conducted an internal review of most of our internal IT Systems and Non-IT Systems. Because we developed our software products and services internally, beginning at inception in 1996 when the Year 2000 problem already had some visibility, we were largely able to anticipate four digit requirements. In conjunction with ongoing reviews of our own products and services, we are also reviewing our IT infrastructure, including network equipment and servers. We do not anticipate material problems with network equipment, as our current configuration was installed in 1998. Similarly, most of our servers were purchased in 1997 and 1998, and each server is being amortized over a three-year period. With this relatively current equipment, we do not anticipate material Year 2000 compliance problems, and any servers that we find cannot be updated will be replaced either in the normal replacement cycle or on an accelerated basis. We have also internally standardized our machines on Windows NT 4.0, using reasonably current service packs, which we are advised by our vendor are Year 2000 compliant. We use multiple software systems for internal business purposes, including accounting, email, development, human resources, customer service and support, and sales tracking systems. All of these applications have been purchased within the last three years. We have made inquiries of vendors of systems we believe to be mission critical to our business regarding their Year 2000 readiness. Although we have received various assurances, we have not received affirmative documentation of Year 2000 compliance from any of these vendors, and we have not performed any operational tests on our internal systems. We generally do not have any contractual rights with third party providers should their equipment or software fail due to Year 2000 issues. If this third party equipment or software does not operate properly with regard to Year 2000, we may incur unexpected expenses to remedy any problems. These expenses could potentially include purchasing replacement hardware and software. We have not determined the state of compliance of certain third-party suppliers of services such as phone companies, long distance carriers, financial institutions and electric companies, the failure of any one of which could severely disrupt our ability to carry on our business. We anticipate that our review of Year 2000 issues and any remediation efforts will continue throughout calendar 1999. To date, we have spent less than an estimated $10,000 to remediate our Year 2000 issues. If any Year 2000 issues are uncovered with respect to these systems or our other internal systems, we believe that these problems will be able to be resolved without material difficulty, as replacement systems are available on commercially reasonable terms. We presently estimate that the total remaining cost of addressing Year 2000 issues will not exceed $100,000. These estimates were derived utilizing a number of assumptions, including the assumption that we have already identified our most significant Year 2000 issues. However, these assumptions may not be accurate, and actual results could differ materially from those anticipated. In view of our Year 2000 review and remediation efforts to date, the recent development of our products and services, the recent installation of our networking equipment and servers, and the limited activities that remain to be completed, we do not consider contingency planning to be necessary at this time. Our applications operate in complex network environments and directly and indirectly interact with a number of other hardware and software systems. We are unable to predict to what extent our business may be affected if our systems or the systems that operate in conjunction with it experience a material Year 2000 failure. Known or unknown errors or defects that affect the operation of our software and systems could result in delay or loss of revenue, interruption of services, cancellation of customer contracts, diversion of development resources, damage to our reputation, increased service and warranty costs, and litigation costs, any of which could adversely affect our business, financial condition and results of operations. The most likely worst case scenario is that the Internet fails and we are unable to offer our content, community and commerce services. INEX Corporation All of the current versions of INEX's significant software products have been designed to recognize and use a four digit date in order to accommodate the Year 2000. INEX's software products obtain date information, such as creation dates and modification dates, directly from the computer's operating system 38 and other software applications. The current versions of INEX's products are dependent upon the operating systems upon which they run and the software applications that they interact with. There can be no assurances that such operating systems or software applications will be Year 2000 compliant or that unforeseen technical problems resulting from the calendar change for the Year 2000 will not adversely affect INEX's software products. Although INEX does not believe there are any material operations issues or costs associated with preparing its internal systems for Year 2000 compliance, there can be no assurances that it will not experience serious unanticipated negative consequences and/or material costs caused by undetected errors or defects in the technology used in its internal systems. MyAgent Technology Acquisition On June 30, 1999 we acquired the MyAgent technology and related assets from Active Voice Corporation for a cash payment of $18 million dollars. In addition we hired six employees that comprised the MyAgent development team at Active Voice. The acquisition was accounted for as a purchase in accordance with the provisions of Accounting Principles Board Opinion ("APB") No. 16. Under the purchase method of accounting, the purchase price is allocated to the assets acquired and the liabilities assumed based on their fair values at the date of the acquisition. Other than the MyAgent technology modules, no other assets or liabilities were assumed as part of this acquisition. The total purchase price of the acquisition of the MyAgent technology was $18.1 million including direct acquisition expenses of $100,000. The purchase price was allocated to the assets acquired based on their estimated fair values as follows: In-process research and development........................... $ 3,900,000 Core technology............................................... 400,000 Goodwill...................................................... 13,720,000 Acquired workforce............................................ 80,000 ----------- $18,100,000 ===========
We recorded a non-recurring charge of $3.9 million for in-process research and development that had not yet reached technological feasibility and had no alternative future use. We also recorded a one-time charge of $1.0 million for expenses incurred in connection with the transaction, which was separate from the purchase price paid to Active Voice. These expenses consisted of bonus payments made to the Active Voice MyAgent team employees who accepted employment with us on the date of the MyAgent technology acquisition, but who have no obligation to continue their employment with us. Among the factors we considered in determining the amount of the allocation of the purchase price to in-process research and development were various factors such as estimating the stage of development of each module of the technology, including the complexity and technical obstacles to overcome, estimating the amount of core technology leveraged into the in-process projects, estimating the expected life of each module, estimating cash flows resulting from the expected revenues, margins, and operating expenses generated from each module, and discounting to present value the cash flows associated with the in-process technologies. We utilized a rate of return of 30% to discount to present value the cash flows associated with the in-process technologies. Within the MyAgent technology there are three main modules, the Client, Server Intelligence, and Web Interface. We intend to integrate the MyAgent technology into the InfoSpace.com Web site and launch the technology with our desktop portal. We also plan to offer a co-branded version to our affiliates as part of our suite of co-branded service offerings. As of the date of acquisition, we estimated that the Client, Server Intelligence, and Web Interface were 50%, 49%, and 29% completed, respectively. The percentage completed pre-acquisition for each module was based primarily on the evaluation of three major factors: time-based data, cost-based data, and complexity-based data. 39 The expected life of the modules being developed was assumed to be five years, after which substantial modification and enhancement would be required for the modules to remain competitive. Our revenue assumptions for these modules were based on the number of page views we estimate the desktop portal will generate and the portion of those page views we estimate will be attributable to the MyAgent technology modules. We estimated that the number of page views will double as a result of the launch of the desktop portal. We estimated that 50% of the incremental page view growth would be attributable to the MyAgent modules. Page view revenue generated by the desktop portal will vary from our standard page view revenue since fewer advertisements can be placed on the desktop portal. Our expense assumptions for these modules included cost of revenues, which we estimated to be 17% of revenues in the first year and thereafter to drop to 9% as we will incur minimal costs as we leverage the technology in future periods. Sales and marketing expenses combined with general and administrative expenses were estimated to be 34% in the first year, and thereafter to drop to 22% of revenues. However, cost of revenues, sales and marketing expenses and general and administrative expenses may vary, both in absolute dollars and as a percentage of revenues. While we believe that the assumptions discussed above were made in good faith and were reasonable when made, such assumptions remain largely untested, as the three modules are not yet in service. Accordingly, the assumptions we made may prove to be inaccurate, and there can be no assurance that we will realize the revenues, gross profit, growth rates, expense levels or other variables set forth in such assumptions. Considering the inherent difficulty in developing estimates of future performance for emerging technologies such as the MyAgent modules, we utlized a relatively high rate of return (30%) to discount to present value the cash flows associated with the in-process technologies. The discount rate was selected based on evaluation of our weighted average cost of capital, the weighted average return on assets, the internal rate of return implied from the transaction, and management's assessment of the risk inherent in the future performance estimates utlized in the valuation. The Client and Server Intelligence are scheduled for completion and beta testing in the fourth quarter of 1999 and for release in the first quarter of 2000. The Web Interface is scheduled for release in the second or third quarter of 2000. Significant technology development efforts are necessary before any one of these modules can successfully be completed and integrated into our full suite of service offerings of on-line services available both on the our Web site and on those of the our many affiliates Web sites. We plan to make the Client modular and reduce its size considerably in order shorten the download time. As acquired, the Client does not have a mechanism to support co-branding. This will need to be designed, developed, and tested. We expect these modules to be fully integrated into our full suite of Internet service offerings. Further, the modules will not be distinguishable market segments for financial reporting purposes or for management purposes. Consequently, there will be no separate and distinguishable allocations or utilizations of net working capital, and no specific charges for use of contributory assets. None of our operating expenses are allocated to specific service offerings. We do not expect to have the ability to calculate revenues specifically and exclusively attributable to the integrated MyAgent technology. Further, the absence of such attribution will not be material to any module's success. The amount that we can charge customers for access and use of these modules will be greatly influenced by market forces and competitors' pricing of their own packaged and integrated offerings. The MyAgent product team was not accounted for by Active Voice as a separate entity, a subsidiary, or a line of business, or division of the business, but rather was rolled up as part of the research and development group. Accordingly, historical financial information was not available and we were unable to utilize historical results of operations in the valuation of the MyAgent technology. 40 Technology from the Outpost Acquisition In June 1998, we acquired Outpost, which included the acquisition of the Outpost Technology and the hiring of approximately ten employees. In the second quarter of 1998, we wrote off approximately $2.8 million in connection with the Outpost acquisition. In connection with the acquisition, we conducted a valuation of the assets acquired from Outpost, including core technology, assembled workforce and in- process research and development, utilizing the following major assumptions: . the revenue and margin contribution of each technology (in-process and future yet-to-be defined); . the percentage of carryover of technology from products under development and products scheduled for development in the future; . the expected life of the technology; . anticipated module development and module introduction schedules; . revenue forecasts, including expected aggregate growth rates for the business as a whole and expected growth rates for the Internet content provider industry; . forecasted operating expenses, including selling, general and administrative expenses, as a percentage of revenues; and . a rate of return of 30% utilized to discount to present value the cash flows associated with the in-process technologies. Within the acquired Outpost Technology (smart-shopping services) there are four main modules that we have integrated or intend to integrate into the InfoSpace.com Web site. These modules in their developed state as of the acquisition date of Outpost had certain technological limitations. Subsequent to the acquisition date, we revised our strategy with respect to the transaction proxy module, with the result being that most of the in-process technology was discarded. Accordingly, no value was assigned to this module in connection with our valuation of the assets acquired from Outpost. The four modules are: . integrated content that will provide users with product pricing and merchant information; . transaction proxy that will allow us to track sales transactions from beginning to end and to receive confirmation reports from the retailers; . branding that will allow users to travel to affiliate Web sites without leaving the InfoSpace.com Web site; and . universal shopping cart that will allow users to make multiple purchases at different retailers in one execution. These modules have been integrated into our full suite of Internet service offerings. The integrated content module was completed and integrated into our Web site in the third quarter of 1998. Relevant portions of the transaction proxy, branding and universal shopping cart modules were completed and integrated into the version 1.0 release of our ActiveShopper electronic commerce private label solution that was launched in May 1999. Other portions of these modules are estimated to be completed in the third or fourth quarters of 1999. The direct impact of the smart-shopping service on current and future results of operations, liquidity and capital resources is not known, as we do not have the ability to calculate revenues specifically and exclusively attributable to Outpost's integrated technology. Further, the modules are not distinguishable market segments for financial reporting purposes or for management purposes. However, we believe that these services will allow our affiliates to broaden and enhance their core programming at minimal cost and to generate additional advertising and transaction revenue opportunities for both us and our affiliates, 41 initially through our launching, and affiliates utilizing, ActiveShopper as a private label electronic commerce solution. Further, the benefits to us and our affiliates can potentially extend beyond electronic commerce transactions by: . enabling us to apply the Outpost Technology to other functions such as building employment classifieds and databases of local events; . allowing end users to access consolidated bank statements or statements of airline frequent flyer miles; and . attracting additional Web users who are then exposed to the many other features in our suite of content, community and commerce solutions. Recent Accounting Pronouncements In June 1998, the FASB issued SFAS No. 133, Accounting for Derivatives and Hedging Activities, effective for fiscal years after June 2000, which establishes accounting and reporting standards for derivative instruments, including certain derivative instruments embedded in other contracts (collectively referred to as derivatives), and for hedging activities. Because we have never used and do not currently intend to use derivatives, management does not anticipate that the adoption of this new standard will have a significant effect on our earnings or financial position. Quantitative and Qualitative Disclosures About Market Risk We are exposed to financial market risks, including changes in interest rates. We typically do not attempt to reduce or eliminate our market exposures on our investment securities because the majority of our investments are short term. We do not have any derivative instruments. The fair value of our investment portfolio or related income would not be significantly impacted by either a 100 basis point increase or decrease in interest rates due mainly to the short-term nature of a significant portion of our investment portfolio. In addition, we intend to hold our investments to their maturity, which mitigates our risk with respect to fluctuating interest rates. All of the potential changes noted above are based on sensitivity analysis performed on our balances as of June 30, 1999. 42 BUSINESS Overview InfoSpace.com, a leading Internet infrastructure company, provides private label solutions for content, community and commerce to Web sites and Internet appliances. Our affiliate network consists of more than 1,800 Web sites. Our affiliates include AOL, Microsoft, Lycos, NBC's Snap, go2net Inc.'s MetaCrawler, Disney/InfoSeek's GO Network, Network Solutions, DoubleClick, Dow Jones (The Wall Street Journal Interactive Edition), ABC LocalNet, BellSouth and US West. Our private label solutions include (1) content services, such as yellow pages and white pages, maps and directions, classified advertisements, real-time stock quotes, sports, information on local businesses and events, weather forecasts and horoscopes, (2) community services, such as online address books and personal calendars, personal home pages, message boards and online chat rooms, and (3) our electronic commerce solution, ActiveShopper, which allows shoppers to research, buy and obtain special promotions for products offered online, review offline catalogs, locate auction sites where a product is being offered, conduct online price comparisons and locate merchants in the shopper's local area. By aggregating content and commerce information from multiple sources and integrating it with related information and community services using our proprietary technology, we help to increase the convenience, relevance and enjoyment of our affiliate users' visits, thereby promoting increased traffic and repeat usage. This, in turn, provides enhanced advertising and electronic commerce revenue opportunities to affiliates with minimal additional investment. By leveraging our relationships, services and technology, affiliates are free to focus on their core competencies. We design our infrastructure services to be highly flexible and customizable, enabling affiliates to select from among our broad range of content, community and commerce services. One of our principal strengths is our internally developed technology, which enables us to easily and rapidly add new affiliates by employing a distributed, scalable architecture adapted specifically for our Internet-based infrastructure services. We help our affiliates build and maintain their brands by delivering our content, community and commerce services with the look and feel and navigation features specific to each affiliate, creating the impression to end users that they have not left the affiliate's site. We have designed our technology to support affiliates across multiple platforms and formats, including the growing number of emerging Internet appliances. We typically share advertising revenues with the affiliates whose sites incorporate our content, community and commerce services where advertisements are placed. We derive substantially all of our revenues from national and local advertising, promotions, including promotions for content, community and commerce, and, to a lesser extent, non-advertising based private label solutions. Through our direct sales force, we offer a variety of national advertising and promotions that enable advertisers to access both broad and targeted audiences. We also sell local Internet yellow pages advertising through cooperative sales relationships with RBOCs, established independent yellow pages publishers, media companies and direct marketing companies. We believe that these relationships provide us access to local sales expertise and customer relationships that give us an advantage over competitors while minimizing our own sales infrastructure investment. Our Private Label Solutions Our private label solutions include (1) content services, such as yellow pages and white pages, maps and directions, classified advertisements, real- time stock quotes, sports, information on local businesses and events, weather forecasts and horoscopes, (2) community services, such as online address books and personal calendars, personal home pages, message boards and online chat rooms, and (3) our electronic commerce solution, ActiveShopper, which allows shoppers to research, buy and obtain special promotions for products offered online, review offline catalogs, locate auction sites where a product is being offered, conduct online price comparisons and locate merchants in the shopper's local area. 43 We have acquired the rights to a wide range of content from more than 65 third-party content providers. The cornerstone of our content solution is our nationwide yellow pages and white pages directory information. Using our proprietary technology, we integrate this directory information with other value-added content to help users find people, places and things in the real world. As an example of the power of our contextual integration, a salesperson using our content, community and commerce services can, from the results of a single query, find the name and address of a new customer, add the address to his or her online address book, check the customer's online calendar, obtain directions to his or her office, send a card or gift, check the weather forecast and, typically, make an online reservation at the nearest hotel, browse the menu of a nearby restaurant and review a schedule of entertainment events for the locale. We have developed community and commerce services that we integrate with related content. Our suite of community services enables affiliates to increase user loyalty and user visits by offering online personal calendars, address books, Web-based email, personal home pages and online chat and message boards. Our recent acquisition of MyAgent technology enables us to offer real-time Internet communication such as real-time messaging and enhancements to our community services. We launched our commerce service, ActiveShopper, in May 1999. ActiveShopper is designed to help our affiliates retain users and prolong their visits by allowing consumers to make critical purchase decisions from within a single, fully featured commerce service and never leave an affiliate's site. ActiveShopper provides the ability to research, obtain special promotions and purchase products from more than 2,500 online and offline retailers. Content Services We seek to provide our affiliates with content of broad appeal to end users, including local information, financial data and news and entertainment. We believe that such content can provide advertisers with opportunities to both reach a broad audience and target specific subgroups within that audience. In most cases, we receive regular data feeds from our content providers and store the content on our Web servers in order to maintain its reliability and increase its accessibility. In other cases, our proprietary technology allows Web users to transparently access content that is stored directly on the content provider's system. In either case, our technology enables us to aggregate heterogeneous content into an integrated service, which is then delivered to our affiliates. Our technology pulls content dynamically into a Web page or device output display that maintains the look and feel and navigation features of each affiliate's Web site or Internet appliance. We have acquired rights to third-party content pursuant to more than 65 license agreements, typically having terms of one to five years. The license agreements require the content provider to update content on a regular basis, the frequency of which varies depending on the type of content. In certain arrangements, the content provider pays us a carriage fee for syndication of its content to our network of affiliates. In other instances, we share with the content provider advertising revenues attributable to end-user access of the provider's content. For certain of our content, including our core directory and map content, we pay a one-time or periodic fee or fee per content query to the content provider. We typically enter into nonexclusive arrangements with our content providers. However, in certain instances we have entered into exclusive relationships, which may limit our ability to enter into additional content agreements. Directory Services We license what we believe to be the most comprehensive and accurate database of businesses in the United States and Canada through a five-year agreement with infoUSA (formerly known as American Business Information, Inc.). infoUSA is a leading provider of online yellow pages directory information. Pursuant to our agreement with infoUSA, we pay infoUSA an annual fee and have built a co- branded version of our directory services for infoUSA's Web site. We will share with infoUSA any revenues generated by this co-branded Web site. We receive access to infoUSA's business data, and infoUSA is required to update its information monthly. We enhance this content with expanded yellow pages information obtained 44 under agreements with independent yellow pages publishers that we estimate, based on 1997 revenue data published by Simba Information Inc., represent approximately 30% of the independent yellow pages market share in the United States. This expanded information includes not only names, addresses and telephone numbers, but also types of business, hours of operation and franchise affiliations. We license our white pages directory information for the United States and Canada under a three-year agreement with Acxiom Corporation, which is automatically renewed for additional annual terms unless terminated by either party prior to the end of the initial three-year term or any subsequent term. Pursuant to our agreement, we pay Acxiom an annual fee, and receive household data from Acxiom that they update on a monthly basis. We integrate our yellow pages and white pages information with each other and utilize yellow pages category headings in combination with a natural word search feature to provide a user-friendly interface and navigation vehicle for our directory services. We also typically include maps and directions for addresses included in our directory services. We further enhance the relevance and accuracy of responses to user queries by employing a radial search feature to our directory services, which allows users to specify the geographic scope within a radial distance of a specific address, rather than more conventional methods of searching by ZIP code or city and county divisions. Information Services In addition to our directory services, we distribute other valuable information of broad appeal. We seek to provide a comprehensive offering of content services with everyday significance. Principal categories of content currently offered by us include: Yellow Pages White Pages find businesses, companies phone numbers, email online, maps, directions addresses, reverse lookup, online phone calls Classifieds Public Records autos, homes, apartments, "Find Anyone!", background jobs, businesses, personals checks, SS# checks, adoption reunions Business Services City Guide supplies, travel, trade links, concerts, weather, shows schools Finance News Break real-time quotes, the top stories, world news, business, markets, loan center, technology, sports insurance center Net Search International arts, computers, games, slide shows, directory health, home, reference, services for Canada, the sports United Kingdom, France, Germany, Denmark and other countries Government Entertainment federal, state, local movies, page greetings, officials lottery, horoscopes Our future success will depend in large part on our ability to aggregate, integrate and distribute content of broad appeal. Our ability to maintain our relationships with content providers and to build new relationships with additional content providers is critical to the success of our business. See "Risk Factors--We Depend on Third Parties for Content." 45 Community Services In April 1999, we introduced a private label suite of community services that are integrated with our content and commerce services. These services allow users to utilize the Internet to organize their lives within an affiliate's Web site or Internet appliance. We enhance these services by integrating them with our content and commerce services. Our community services allow our affiliates to offer Web-based personal calendars, address books and e-mail, personal home pages, message boards and online chat. We offer these services to our affiliates on a co-branded basis to help increase their users' loyalty and prolong their visits. In June 1999, we acquired the MyAgent technology and related assets from Active Voice to add real-time online messaging from PCs and other Internet appliances and to enhance the performance and utility of our current communications service solution. Commerce Services In May 1999, we launched ActiveShopper, our integrated commerce service. ActiveShopper utilizes our proprietary integration technology to combine merchant information, decision-making services and merchandising services in a single shopping platform. ActiveShopper provides research tools to enable users to come to a conclusion about a product through access to product reviews, participation in online forums such as message boards, as well as search for Web sites for additional information. Once a buying decision has been made, ActiveShopper enables a consumer to find promotional bargains and sales, as well as search for products for sale by online merchants and auction sites, offline catalogs and through online classifieds services and locate merchants in their local area. We offer ActiveShopper to our affiliates to provide them with electronic commerce capabilities from their own Web site to retain users who would otherwise go directly to an online retailer's site. By offering a fully- featured commerce service, a consumer can make critical purchase decisions without leaving an affiliate's site. Upon consummation of our combination with INEX, we intend to utilize INEX's commerce applications to provide merchants a complete, affordable and easy-to-use means to build, manage and promote online storefronts. These features will enable affiliates to attract and host online and local merchants on their sites by providing the necessary online storefront building tools. Affiliate Network We provide our infrastructure services to a network of Web sites and Internet appliances, such as cellular phones, pagers, screen phones, television set-top boxes, online kiosks and personal digital assistants. We have more than 100 affiliates representing more than 1,800 Web sites. 46 Internet Portals, Destination Sites and Online Service Providers Our affiliates include leading Internet portals, a wide variety of destination sites and online service providers, such as the following: Internet Portals
Affiliate Location or Web Site Address --------- ---------------------------- America Online AOL service, aol.com, Netscape's Netcenter (netscape.com), CompuServe service, compuserve.com and digitalcities.com AT&T WorldNet att.net Disney/Infoseek's GO network go.com go2net Metacrawler.com Lycos lycos.com Microsoft Network essentials.msn.com Snap snap.com Destination Sites Affiliate Web Site Address --------- ---------------- ABC News Abcnews.com and individual ABC network affiliate Web sites (e.g., WABC's 7online.com, KOMO's komotv.com) Paxson Communications affiliate television station Web sites (e.g., pax.net/WCPX) Deja News dejanews.com Disney OnLine family.com Dow Jones wsj.com EarthLink earthlink.com FindLaw findlaw.com Market Guide marketguide.com Morris Online savannah.com OnRadio onradio.com Playboy playboy.com World Now worldnow.com Xoom xoom.com Online Service Providers Affiliate Web Site Address --------- ---------------- DoubleClick doubleclick.com Network Solutions networksolutions.com
47 We design our private label solutions to be highly flexible and customizable, enabling affiliates to select from among our broad range of content, community and commerce services and to specify the placement of the selected services within their own Web sites and devices. For example, one of our affiliates, local television station WABC's 7online.com, has selected our yellow pages directory information, classifieds information and ActiveShopper services, and offers these services on its Web site. go2net, another affiliate, uses a broad range of our services, including our classifieds, white pages and yellow pages directory information services and weather and community services. In response to user queries originating from an affiliated Web site or device, our automated publishing engine dynamically builds a page to conform to the display format and look and feel and navigation features specific to that affiliate. This feature helps our affiliates build and maintain their brands by creating the impression to end users that they have not left the affiliate's site. We manage the access of content and commerce information and process user queries from our own Web server until we deliver these services to an affiliate, serving as a cost-effective single source supplier of content and services. Our arrangements with affiliates typically provide for sharing a portion of the revenues generated by advertising on the Web pages that deliver our content, community and commerce services. Both we and the affiliate typically retain the rights to sell such advertising. Our distribution arrangements with our affiliates typically are for limited durations of between six months and two years and automatically renew for successive terms thereafter, subject to termination on short notice. There can be no assurance that such arrangements will not be terminated or that such arrangements will be renewed upon expiration of their terms. We have also entered into a strategic alliance with AOL, the largest Internet portal measured in terms of user traffic to provide some of our services on the Netscape home page (Netcenter), CompuServe's service and compuserve.com, Digital City, AOL's proprietary service and AOL.com. Netscape, CompuServe, Digital City. In June 1999 we entered into an agreement with AOL to provide white pages directory services to AOL's CompuServe and Digital City divisions and its Netscape Communications subsidiary for a two- year term. Pursuant to the agreement, we are required to pay to AOL a bi-annual carriage fee. In return, AOL has agreed to deliver a certain number of searches of our white pages directory services in each year of the agreement. If AOL delivers a greater number of searches in either or both of the years, we are required to pay AOL additional fees on a cost-per-search basis. In the event that AOL delivers a lesser number of searches as of the end of the initial two- year term of the agreement, AOL will extend the term for six months or until the shortfall is made up, whichever occurs first. We will account for revenue and revenue sharing under the agreements with AOL under our existing revenue recognition policies described in our Notes to Consolidated Financial Statements. The total carriage fee payments to be made under the white pages directory services agreement will be recognized based on actual searches delivered over the term of the agreement as sales and marketing expense. AOL. In August 1998 we entered into agreements with AOL to provide white pages directory services and classifieds information services to AOL. Under the terms of the agreement related to our white pages directory services, we have agreed to place our white pages directory services on AOL's NetFind home page and throughout various other parts of AOL's proprietary service and AOL.com. The white pages directory services are to be provided to AOL for a three-year term, beginning on November 19, 1998, which term may be extended for an additional year and subsequently renewed for up to three successive one-year terms at AOL's discretion. This agreement may be terminated by AOL upon the acquisition by AOL of a competing white pages directory services business or for any reason after 18 months, upon payment of a termination fee, or at any time in the event of a change of control of us. Under this agreement, we will pay to AOL a quarterly carriage fee and share with AOL revenues generated by advertising on our white pages directory services delivered to AOL. Under the terms of the agreement related to our classifieds information services, we have agreed to provide classified advertising development and management services to AOL for two years, with up to three one-year extensions at AOL's discretion. Pursuant to the agreement, we supply classifieds information services to AOL's proprietary service, AOL.com, its CompuServe and Digital City 48 divisions and its Netscape Communications subsidiary. AOL will pay to us a quarterly fee and share with us revenues generated by payments by individuals and commercial listing services for listings on the AOL classifieds service. In connection with these agreements, AOL received a warrant to purchase our common stock and has certain rights of first negotiation in the event of a proposed sale of us. See "Description of Capital Stock--Warrants" and "--Antitakeover Effects of Certain Provisions of Certificate of Incorporation and Washington and Delaware Law; Right of First Negotiation." Internet Appliances We are working with certain PC manufacturers that are incorporating Internet access as part of the start-up menu of the PC. In addition, we believe that the growing number of non-PC Internet appliances presents a significant potential distribution channel for our private label solutions. Numerous suppliers of cellular telephones, pagers, screen telephones, television set-top boxes, online kiosks and personal digital assistants are adapting familiar appliances to provide user-friendly access to the Internet. We have entered into agreements with numerous providers of Internet appliances, including the following: Selected Internet Appliance Affiliates
Means of Internet Access Company ------------------------ ------- PCs Acer America; The Pixel Company (for Packard Bell NEC) Cellular Phones AT&T Wireless; @Mobile; Nokia Pagers WolfeTech (for Motorola PageWriter) Screen Telephones InfoGear; Mitel; Mitsui; Lucent Television Set-Top Boxes American Interactive Media; @Home; Lucent; On Command; Planetweb; Source Media Online Kiosks King kiosk platform; Lexitech kiosk software platform Personal Digital Assistants AT&T Wireless; AvantGo; InfoGear; Vaden
We believe that users of Internet appliances, in particular, seek useful information and services of everyday relevance and are more likely to access the Internet for specific real-world information and services. Since providers of Internet appliances generally do not generate their own content and services or have less content and services available to them than Web sites, we believe there is an opportunity for our content, community and commerce services to be an integral part of the information services bundled with these appliances. We are working with these affiliates to identify, acquire and integrate new information services that bring additional value to their devices. Our technology allows us to readily adapt the delivery of our services to the individual format and display features of our Internet appliance affiliates. Typically, our agreements with Internet appliance affiliates have terms of between one and three years and, in some cases, provide for the sharing of revenues between the affiliate and us generated by advertising included with the delivery of our content, community and commerce services. In other cases, we receive license fees on a per query or per device basis or through other arrangements for use of our private label solutions. Our affiliate arrangements involve a number of risks. See "Risk Factors--We Rely on our Relationships with Affiliates." Revenue Sources We derive substantially all of our revenues from national and local advertising, promotions, including promotions for content, community and commerce, and, to a lesser extent, non-advertising based private label solutions. Our clients include a broad range of businesses that advertise on the Internet, including certain of our content providers and affiliates. 49 Advertising and Promotions National Advertising Banner Advertisements. A banner advertisement is prominently displayed at the top and, in some cases, at the bottom of each Web page generated for delivery of our content, community and commerce services. From each banner advertisement, users can hyperlink directly to an advertiser's Web site, thus enabling the advertiser to directly interact with an interested consumer. Mass market placements deliver general rotation banner advertisements throughout our private label solutions. Targeted placements deliver banner advertisements to specified audiences. For example, advertisers can reach consumers in general by placing banner advertisements that rotate throughout our directory services, classifieds and electronic commerce services. Alternatively, advertisers can narrow their target audience by category of information or service requested by users or by geographic location. For example, advertisers can target investors by advertising only on pages containing our real-time stock quotes or potential used car buyers by advertising only on pages containing our automobile classifieds. Other National Advertising. We also sell CPM-based national advertising other than banner advertisements. The most common of these advertisements are known as "button advertisements" and "textlinks," but can also include customized advertising solutions developed for specific advertisers. Button advertisements are smaller than banner advertisements and can be placed anywhere on a Web page. Textlinks appear on a Web page as highlighted text, usually containing the advertiser's name. Multiple button advertisements and textlinks can appear on the same Web page along with banner advertisements. Both button advertisements and textlinks typically feature click-through hyperlinks to the advertiser's own Web site. Our national advertising agreements generally have terms of less than six months and guarantee a minimum number of impressions. We charge fees for banner advertising based on the specificity of the target audience. Our rates for button advertisements and textlinks are lower than those for banner advertisements. Actual CPMs depend on a variety of factors, including, without limitation, the degree of targeting, the duration of the advertising contract and the number of impressions purchased, and are often negotiated on a case-by- case basis. Because of these factors, actual CPMs may fluctuate. Our guarantee of minimum levels of impressions exposes us to potentially significant financial risks, including the risk that we may fail to deliver required minimum levels of user impressions, in which case we typically continue to provide advertising without compensation until such levels are met. In order to evaluate and forecast revenue derived from these different revenue sources, the principal revenue metric we utilize is productivity per page. This metric measures our ability to generate revenue from traffic. We calculate productivity per thousand pages by dividing total revenue for a reporting period by the total number of page views in the same period, then multiplying this amount by 1,000. Productivity per page will vary due to the delay in generating revenue from increasing traffic. For the six-month period ended June 30, 1999, traffic totaled 2.6 billion page views. Revenue per thousand page views was $4.81 for the second quarter of 1999, an increase of $0.58 from $4.23 of revenue per thousand page views for the first quarter of 1999. We expect revenue per thousand page views for the remainder of 1999 to range between $3.75 and $5.00. See "Risk Factors--We Rely on Advertising and Promotion Revenues." Local Internet Yellow Pages Advertising We believe that local Internet advertising represents an attractive and largely unexploited market opportunity. Spending on Internet advertising by local businesses is currently a small but growing percentage of their overall advertising expenditures. We believe that our affiliate network provides an attractive Internet platform for local advertisers to reach a broader audience and extends the reach of their advertising beyond their geographic area, as well as to achieve targeted advertising within their geographic area. 50 We generate an Internet yellow pages listing free of charge for all U.S. local business listings provided by infoUSA. This listing includes name, address and telephone number information, as well as maps and door-to-door directions. Similar to traditional yellow pages industry practices, we generate revenues by selling enhancements to this basic listing. Enhancement options include boldface type, enlarged type size, multi-category listings, preferred placement, email listings and Web site links, display advertisements and category sponsorships. Internet yellow pages advertising agreements provide for terms of one year, with pricing comparable to print yellow pages advertising, typically paid in monthly installments. Costs to the local advertisers generally range from $50 to $300 or greater per year, depending on the types of enhancements selected. For convenience, these payments usually accompany the local advertiser's monthly payment for its print advertising. We have formed cooperative sales relationships with RBOCs such as Intelligent Media Ventures, Inc. (BellSouth), SBC Interactive (Southwestern Bell) and Ameritech Interactive Media, Inc., independent yellow pages publishers, including TransWestern Publishing Company, Ltd. and R.H. Donnelley, Inc., and media companies, including Guy Gannett Communications and E.W. Scripps, which provide access to more than 7,500 salespeople and their local sales contacts. Further, we have built relationships with direct marketing companies, whose mail and telephone solicitations complement the sales forces of the RBOCs, independent yellow pages publishers and media companies. Our agreements with these companies typically have terms of one to five years and provide for revenue sharing, which varies from relationship to relationship. The local sales forces of these companies are empowered to sell Internet yellow pages advertising on our directory services, which are either bundled with the traditional print advertising they sell or sold by a specialized Internet sales force. As such, we believe our Internet yellow pages advertising offers these sales forces attractive incremental revenue opportunities from their existing client bases as well as an opportunity to expand their sales to new clients. These companies maintain, as part of their existing print advertising infrastructure, the systems necessary for generating online display advertisements, processing invoices and collecting payments from advertisers. To assist in their efforts, we provide the technology to streamline the transmission of data necessary to generate the enhanced Internet yellow pages listings. This technology allows advertising data files to be rapidly posted and integrated directly into our directory services. We believe that these relationships provide local expertise and access to local advertisers, as well as established advertising production capabilities, that give us an advantage over competitors while minimizing our investment in our own sales force and operations. Our dependence on advertising and promotion revenues involves a number of risks. See "Risk Factors--We Rely on Advertising and Promotion Revenues," "--We Rely on Third Parties for Sales of Internet Yellow Pages Advertising," "-- Advertisers May Not Adopt the Internet as an Advertising Medium" and "--Our Advertising Arrangements Involve Risks." Promotions In addition to our CPM-based national advertising, we also sell promotions, which are integrated packages of advertising that bundle such features as: . button and textlink advertisements; . sponsorships of specific categories of content within our private label solutions; and . electronic commerce features. Promotions also include distribution and co-branding services that we provide to content providers, for which we receive a carriage fee. These arrangements are individually negotiated with each advertiser and have a range of specially adapted features involving various compensation structures (such as guaranteed fee payments), none of which are based on CPMs. One of the most common forms of our promotions are 51 "sponsorships," which allow advertisers to sponsor a specific category of content within our private label solutions. These sponsorships consist of a button advertisement or text link that appears prominently on the page each time that content category is queried by a user. Our promotions are specifically designed to allow advertisers to integrate various forms of online advertising, such as button advertisements and text links, content sponsorship and electronic commerce links and also include innovative specially-designed advertising campaigns to fully exploit the reach of our private label solutions. In some cases, we have entered into exclusive sponsorship arrangements for certain categories of content. Promotions may also include an electronic commerce feature, in which a button advertisement offers the end user an opportunity to make an immediate online purchase. For example, we have entered into an agreement with Bookout Furniture, Inc. (FurnitureFind.com) under which FurnitureFind.com receives banner and button advertising and is fully integrated as a sponsor in our ActiveShopper electronic commerce service and our yellow pages and white pages directory services. FurnitureFind.com pays to us a percentage of revenues they receive for sales generated from the integrated pages they sponsor. Promotion arrangements vary in terms and duration, but generally have longer terms than arrangements for our CPM-based advertising. The fee arrangements are individually negotiated with advertisers and are based on the range and the extent of customization. These arrangements typically include minimum monthly payments. If the advertiser offers an electronic commerce opportunity in its promotion, we may derive transaction revenues based on the level of transactions made through the promotion. In addition, we work with advertisers to develop customized advertising solutions that may include both CPM-based national advertising and non-CPM- based promotions. For example, our campaign for 800-U.S. Search involves a variety of targeted banner advertisements, button advertisements and textlinks, as well as co-branding of 800-U.S. Search services with our private label solutions, such as the "Find Anyone!" service. Our advertising agreement with 800-U.S. Search has a four-year term. Revenues generated from 800-U.S. Search accounted for approximately 20.6% of our revenues for 1998 and 27.1% of our revenues for the first six months of 1999. See "Risk Factors--We Rely on a Small Number of Advertising Customers." As of June 30, 1999, we had agreements with more than 50 advertisers for national advertising or promotions. The following is a representative list of brands or companies for which advertisers purchased national advertising or promotions on our content, community and commerce services during 1999: 800-U.S. Search KnowX Apartments for Rent Leisure Planet AT&T Locate-Me AutoNation.com Microsoft BarnesandNoble.com Multiple Zones CareerPath Nth Dimension Catalog City Netscape FTD Net-Temps InsWeb NextCard Intel uBid iVillage Women.com
Non-advertising Based Private Label Solutions Under our non-advertising based private label solution arrangements, affiliates pay us on a fixed fee, per-click or page view basis while typically keeping any revenues generated by our content, community and commerce services. These arrangements vary in terms and duration, and the fees are individually negotiated with the affiliate. For example, under our agreement with AOL, AOL pays us a quarterly fee and shares with us revenue generated from payments by individuals and commercial listings on the AOL classifieds service. Another affiliate, NBC's Snap, pays us on a CPM-basis on the number of pages of services we deliver to them. 52 Technology and Infrastructure One of our principal strengths is our internally developed technology, which we have designed specifically for our Internet-based content, community and commerce services. Our technology architecture features specially adapted capabilities to enhance performance, reliability and scalability, consisting of multiple proprietary software modules that support the core functions of our operations. These modules include Web Server Technology, Database Technology, a Web Scraping Engine and Gateway Technology. Web Server Technology We designed our Web Server Technology to enable rapid development and deployment of information over multiple platforms and formats. It incorporates an automated publishing engine that dynamically builds a page to conform to the look and feel and navigation features of each affiliate. As such, our technology enables us to deliver content in a manner optimized to the unique display formats of existing and emerging Internet appliances, such as cellular phones, pagers, screen phones, television set-top boxes, online kiosks and personal digital assistants. Our Web Server Technology includes other features designed to optimize the performance of our content, community and commerce services, including: . an HTML compressor that enables modifications of file content to reduce size, thereby reducing download time for users; . an "Adaptive Keep-Alive" feature that maximizes the time during which client server connections are kept open, based on current server load, thereby increasing user navigation and Web site traversal speed; and . a Proxy Server that provides the capability for real-time integration and branding of content that resides remotely with third-party content providers. Database Technology We have developed proprietary database technology to address the specific requirements of our business strategy and private label solutions. We designed our Co-operative Database Architecture to function with a high degree of efficiency within the unique operating parameters of the Internet, as opposed to commonly used database systems that were developed prior to the widespread acceptance of the Internet. The architecture is tightly integrated with our Web Server Technology and incorporates the following features: Heterogeneous Database Clustering. Our Heterogeneous Database Clustering allows disparate data sources to be combined and accessed through a single uniform interface, regardless of data structure or content. These clusters facilitate database bridging, which allows a single database query to produce a single result set containing data extracted from multiple databases, a vital component of our ability to aggregate content from multiple sources. Database clustering in this manner reduces dependence on single data sources, facilitates easy data updates and reduces integration efforts. In addition, our pre-search and post-search processing capabilities enable users to modify search parameters in real time before and after querying a database. Dynamic Parallel Index Traversal. Our Dynamic Parallel Index Traversal mechanism utilizes the search parameters supplied by the user to determine the appropriate database index (from among multiple indices) to efficiently locate the data requested. Further, an index compression mechanism allows us to achieve an efficient balance between disk space and compression/decompression when storing or accessing data. 53 Automatic Query State Recovery. In a response to a database query, conventional databases access previously displayed results in order to display successive results to a given query, thus increasing response time by performing redundant operations. Our Automatic Query State Recovery mechanism decreases response time by maintaining the state of a query to allow the prompt access of successive results. This feature is particularly important, for example, when an end-user query retrieves a large number of results. Natural Language Interface. We incorporate a natural word search interpreter, which successfully utilizes familiar category and topic headings traditional to print directory media to generate relevant and related results to information queries. By incorporating a familiar navigation feature into our services, we believe we provide end users with a more intuitive mechanism to search for and locate information. Data Warehouse. For our commerce initiatives we have developed a comprehensive enterprise-wide data warehouse. This data warehouse contains information relating to merchants, products, services, users, customers, profiles, storefronts, purchases, site traffic and metrics. The aggregation of this information in one place allows us to leverage our development efforts and reduce redundant information. Web Scraping Engine We have developed our Web Scraping Engine to allow data from a variety of sources on the Internet to be retrieved, parsed and presented as a single virtual database result, either in real-time or at predetermined intervals. Our State Machine-Based Profiling system catalogs the data on each source site, which is later accessed by our Web Scraping Engine for real-time retrieval. Data results can be internally cached to reduce network traffic and deliver the fastest possible results to the end user. The Web Scraping Engine has numerous applications, one of which is collecting real-time information from multiple sources in a manner that eliminates the need for a data provider to perform any local modifications. This technology is currently being applied in the price comparison feature of our ActiveShopper commerce service. Various other potential uses of the technology have been identified, including the collection and real-time updating of event data such as concert information, performing arts schedules and sporting events, and the aggregation of classified listings, such as employment listings from corporate Web sites. Gateway Technology Our Gateway Technology allows us to take content from one source protocol and forward it to a device destination that does not include any of the hardware or software necessary for establishing an internet connection. The content can be sent directly or may have some processing performed before transmission to the destination. This can be used for a single message, or multiple messages sent on a timed basis such as weather, stock quotes, news and horoscopes. Messages may be sent to a single user or group of users. Data Network Infrastructure We maintain a carrier-class data network center designed to ensure high-level performance and reliability of our content, community and commerce services. We connect directly to the Internet from our facilities in Redmond, Washington through redundant, dedicated DS-3 communication lines provided by multiple telecommunication service providers. Our hardware resides in a secure climate- controlled room, with local directors providing load balancing and failover. In addition to the facilities located at our headquarters, we contract for co- location facilities with Exodus Communications and Savvis Communications at their sites near Seattle, Washington. As we expand our operations, we expect to locate server facilities at various strategic geographic locations. 54 Product Development We believe that strong product development capabilities are essential to developing the technology necessary to successfully implement our strategy of expanding our affiliate network, acquiring value-added content to add to our content, community and commerce services, expanding internationally and into other services and maintaining the attractiveness and competitiveness of our content, community and commerce services. We have invested significant time and resources in creating our proprietary technology. Product development expenses were $110,000 for the period from March 1, 1996 (inception) to December 31, 1996, $213,000 for the year ended December 31, 1997, $604,000 for the year ended December 31, 1998, $149,000 for the six months ended June 30, 1998 and $537,000 for the six months ended June 30, 1999. Rapidly changing technology, evolving industry standards, evolving customer demands and frequent new product and service introductions characterize our market. See "Risk Factors--Rapid Technological Change Affects Our Business" for a discussion of certain risks in this regard. International Expansion We intend to capitalize on what we perceive to be a significant opportunity for our private label solutions in international markets. We expect to reduce the costs and risks of international expansion by entering into strategic alliances with partners able to provide local directory information, as well as local sales forces and contacts. We entered into a joint venture with Thomson to form TDL InfoSpace to replicate our content, community and commerce services in Europe. TDL InfoSpace has targeted the United Kingdom as its first market, and content services were launched in the third quarter of 1998. Pursuant to the terms of the joint venture agreement, both we and Thomson entered into license agreements with TDL InfoSpace for offsetting payments to each party of (Pounds)50,000. These amounts were not intended to represent the fair market value of the license agreements to an unrelated third party. Under the license agreement between Thomson and TDL InfoSpace, Thomson licenses its U.K. directory information database to TDL InfoSpace. Under the joint venture agreement, Thomson also sells Internet yellow pages advertising for the joint venture through its local sales force. Under our license agreement with TDL InfoSpace, we license our technology and provide hosting services to TDL InfoSpace. In addition, under our license agreement, TDL InfoSpace is obligated to reimburse us for any incremental costs incurred by us for our efforts with respect to the hosting services. In the event that TDL InfoSpace expands into other countries, it is required to pay to us an additional technology license fee of up to $50,000 per additional country. Our license agreement also provides that, in the event that we no longer hold any ownership interest in the joint venture, TDL InfoSpace and we will negotiate an arm's-length license fee for our technology, not to exceed $1 million. Each party purchased a 50% interest in TDL InfoSpace and is required to provide reasonable working capital to TDL InfoSpace. We expect that TDL InfoSpace will expand its private label solutions to other European countries by the end of 1999. Under the joint venture agreement, each of us and Thomson is obligated to negotiate with TDL InfoSpace and the other party to jointly offer private label solutions in other European countries prior to offering such services independently or with other parties. In March 1999, we began providing private label solutions to Canadian affiliates through our wholly-owned subsidiary, InfoSpaceCanada.com. In addition, we are currently investigating additional international opportunities. The expansion into international markets involves a number of risks. See "Risk Factors--Our International Expansion Plans Involve Risks." Intellectual Property Our success depends significantly upon our proprietary technology. To protect our proprietary rights, we rely on a combination of copyright and trademark laws, patents, trade secrets, confidentiality agreements 55 with employees and third parties and protective contractual provisions. All of our employees have executed confidentiality and nonuse agreements that transfer any rights they may have in copyrightable works or patentable technologies to us. In addition, prior to entering into discussions with potential content providers and affiliates regarding our business and technologies, we generally require that such parties enter into a nondisclosure agreements with us. If these discussions result in a license or other business relationship, we also generally require that the agreement setting forth the parties' respective rights and obligations include provisions for the protection of our intellectual property rights. For example, our standard affiliate agreement provides that we retain ownership of all patents and copyrights in our technology and requires our customers to display our copyright and trademark notices. "InfoSpace" is a registered trademark of ours. We have also applied for registration of certain other service marks and trademarks, including "InfoSpace.com," "ActiveShopper" and our logo in the United States and in other countries, and will seek to register additional service marks and trademarks, as appropriate. We may not be successful in obtaining the service marks and trademarks that we have applied for. Approximately 15 U.S. patent applications have been filed relating to various aspects of our technology for querying and developing databases, for developing and constructing web pages, for electronic commerce for on-line directory services and for web scraping. Additional patent applications are in preparation on other features of our technology. We have instituted a formal patent program and anticipate increased patent application activity in the future. Patents with respect to our technology may not be granted, and, if granted, patents may be challenged or invalidated. In addition, issued patents may not provide us with any competitive advantages and may be challenged by third parties. Despite our efforts to protect our proprietary rights, unauthorized parties may copy aspects of our products or services or obtain and use information that we regard as proprietary. The laws of some foreign countries do not protect proprietary rights to as great an extent as do the laws of the United States, and we do not currently have any patents or patent applications pending in any foreign country. In addition, others could possibly independently develop substantially equivalent intellectual property. If we do not effectively protect our intellectual property, our business could suffer. Companies in the computer industry have frequently resorted to litigation regarding intellectual property rights. We may have to litigate to enforce our intellectual property rights, to protect our trade secrets or to determine the validity and scope of other parties' proprietary rights. From time to time, we have received, and may receive in the future, notice of claims of infringement of other parties' proprietary rights. Any such claims could be time-consuming, result in costly litigation, divert management's attention, cause product or service release delays, require us to redesign our products or services or require us to enter into royalty or licensing agreements. These royalty or licensing agreements, if required, may not be available on acceptable terms or at all. If a successful claim of infringement were made against us and we could not develop non-infringing technology or license the infringed or similar technology on a timely and cost-effective bases, our business could suffer. See "Business--Legal Proceedings." Competition We operate in the Internet information infrastructure services market, which is extremely competitive and is rapidly changing. Our current and prospective competitors include many large companies that have substantially greater resources than we have. We believe that the primary competitive factors in the market for Internet content, community and commerce services are: . the ability to provide content of broad appeal, which is likely to result in increased user traffic and increase the brand name value of the Web sites and Internet appliances to which the services are provided; . the ability to meet the specific content and service demands of a particular Web site or Internet appliance; 56 . the cost-effectiveness and reliability of the content, community and commerce services; . the ability to provide content, community and commerce services that are attractive to advertisers; . the ability to achieve comprehensive coverage of a particular category of content; and . the ability to integrate related information to increase the utility of the content, community and commerce services offered. We compete, directly or indirectly, in the following ways, among others: . our directory services compete with AnyWho? (a division of AT&T), GTE SuperPages, Switchboard, ZIP2 (which was recently acquired by Compaq), various RBOCs' directory services, infoUSA's Lookup USA, Microsoft Sidewalk and Yahoo! Yellow Pages and White Pages; . other information services we provide, such as classifieds, horoscopes and real-time stock quotes, compete with specialized content providers; . our U.K. joint venture competes with British Telecom's YELL service and Scoot (UK) Limited; . our community services compete with services offered by Internet portals such as AOL, Yahoo!, and Excite, as well as specialized content service providers such as Hotmail; and . our commerce services compete with Inktomi, Amazon.com's Junglee and Excite's Jango. We expect that in the future we will experience competition from other Internet services companies and providers of Internet software, including Microsoft, Yahoo!, AOL, Excite, Disney/Infoseek, Lycos, go2net's MetaCrawler and NBC's Snap. Some of these companies are currently customers of ours, the loss of which could harm our business. We may also face increased competition from traditional media companies expanding onto the Internet. Many of our current customers have established relationships with certain of our current and potential future competitors. If our competitors develop content, community and commerce services that are superior to ours or that achieve greater market acceptance than ours, our business will suffer. Governmental Regulation Because of the increasing use of the Internet, the government may adopt laws and regulations relating to the Internet, addressing issues such as user privacy, pricing, content, taxation, copyrights, distribution and product and services quality. We may be subject to provisions of the Federal Trade Commission Act that regulate advertising in all media, including the Internet, and require advertisers to substantiate advertising claims before disseminating advertising. The Federal Trade Commission has the power to enforce this Act. It has recently brought several actions charging deceptive advertising via the Internet and is actively seeking new cases involving advertising via the Internet. We may also be subject to the provisions of the recently enacted Communications Decency Act. This Act imposes substantial monetary fines and/or criminal penalties on anyone who distributes or displays certain prohibited material over the Internet. Although some court decisions have cast doubt on the constitutionality of this Act, it could subject us to substantial liability. These or any other laws or regulations that may be enacted in the future could have several adverse effects on our business. These effects include: . we may be subject to substantial liability, including fines and criminal penalties; . we could be prevented from offering certain products or services; and . the growth in Internet usage could be substantially limited. 57 Government regulation may present a risk to our business. See "Risk Factors-- We May Become Subject to Government Regulation." Employees As of July 31, 1999, we had 102 employees. None of our employees is represented by a labor union, and we consider our employee relations to be good. Competition for qualified personnel in our industry is intense, particularly among software development and other technical staff. We believe that our future success will depend in part on our continued ability to attract, hire and retain qualified personnel. See "Risk Factors--We Need to Manage Our Growth and Implement Procedures and Controls" and "--We Depend on Key Personnel" and "--We Need to Hire Additional Personnel." Facilities Our principal administrative, engineering, marketing and sales facilities total approximately 16,864 square feet and are located in Redmond, Washington. Under the current lease, which commenced on July 13, 1998, and expires on August 31, 2003, we pay a monthly base rent of $19,775 during the first three years of the lease and $22,030 during the final two years of the lease. We have both the right to extend the term of this lease for an additional 60 months and the right of first opportunity on adjacent expansion space. Under this right of first opportunity we have expanded into an additional 6,587 square foot space at a rate of $7,875 per month under a sublease that expires on April 30, 2000. We also plan to expand into an additional 6,305 square foot space in the same complex in the near future. We expect that we will need to relocate to significantly larger facilities during 2000. We maintain a sales office housed in an approximately 2,271-square-foot space in San Francisco, California under a lease that expires on November 30, 2001 with a monthly base rent of $5,299. We also maintain a sales office in New York City for 1,900 square feet with a monthly base rent of $3,667, under a lease that expires April 2004. Under the lease at our former location in Redmond, we paid an aggregate rent of $28,840 for the first seven months of 1998 and an aggregate rent of $49,440 during 1997. We do not own any real estate. Substantially all of our computer and communications hardware is located at our facilities in Redmond, Washington and we also lease redundant network facilities at two locations in the Seattle, Washington area under a month-to- month agreement and an agreement that expires in July 2001. We intend to install additional hardware and high-speed Internet connections at a location outside the West Coast as well as in the United Kingdom to support our joint venture, TDL InfoSpace. Our systems and operations at these locations are vulnerable to damage or interruption from fire, flood, power loss, telecommunications failure, break- ins, earthquake and similar events. See "Risk Factors--Our Business Relies on the Performance of Our Systems." Legal Proceedings From time to time we have been, and expect to continue to be, subject to legal proceedings and claims in the ordinary course of our business, including claims of alleged infringement of third-party trademarks and other intellectual property rights by us. These claims, even if not meritorious, could require the expenditure of significant financial and managerial resources. On April 16, 1998, one of our former employees filed a complaint in the Superior Court for Santa Clara County, California alleging, among other things, that he had the right in connection with his employment to purchase shares of our common stock representing up to 5% of our equity as of an unspecified date. We settled this lawsuit in February 1999. Under the settlement, we made a cash payment of $4.5 million. On December 7, 1998, a complaint was filed against us on behalf of an alleged former employee in Superior Court for Suffolk County in the Commonwealth of Massachusetts alleging that he was terminated without cause and that he entered into an agreement with us that entitles him to an option to purchase 2,000,000 shares of our common stock or 10% of our equity. The complaint alleges breach of contract, 58 breach of the covenant of good faith, breach of fiduciary duty, misrepresentation, promissory estoppel, intentional interference with contractual relations and unfair and deceptive acts and practices, seeking specific performance of the alleged agreement for 10% of our equity, damages equal to the value of 10% of our equity, punitive damages and attorneys' fees and costs and treble damages under the Massachusetts Consumer Protection Act (Mass. G.L. Chapter 93A). On January 7, 1999, the suit was removed to the United States District Court for the District of Massachusetts. Discovery has commenced and a trial is tentatively scheduled for March 2000. We are currently investigating the claims at issue and believe we have meritorious defenses to such claims. Nevertheless, litigation is inherently uncertain and we may not prevail in this suit. To the extent that we are required to issue shares of our common stock or options to purchase common stock as a result of the suit, we would recognize an expense equal to the number of shares issued multiplied by the fair value of our common stock on the date of issuance, less the exercise price of any options required to be issued. This could harm our results of operations, and any such issuances would be dilutive to existing stockholders, the impact of which may be mitigated to the extent it is offset by shares of common stock in the escrow account described below in this section. On December 23, 1998, we initiated litigation against Internet Yellow Pages, Inc. ("IYP") by filing suit in United States District Court for the Western District of Washington. On February 3, 1999, we served a first amended complaint on IYP and Greg Crane, an agent of IYP, in which we asserted claims for (a) account stated, (b) breach of contract, and (c) fraud. On February 11, 1999, we were served with a complaint filed by IYP in Arizona Superior Court for Maricopa County, which complaint was filed on February 3, 1999. In its complaint, IYP asserts causes of action for breach of contract, fraud, extortion, and racketeering under Arizona Revised Statutes, Section 13- 2301(D)(l) and (t), and seeks relief consisting of $1,500,000 and other unquantified money damages, punitive damages, treble damages under Arizona Revised Statutes, Sec. 13-2314.04, and attorney's fees. On March 5, 1999, IYP answered our complaint in the Washington action, and asserted claims for breach of contract, fraud, extortion and Consumer Protection Act violations. IYP seeks relief consisting of $1,500,000 and other unquantified money damages, treble damages under the CPA, and attorneys' fees. Trial in the Washington action is set for April 2000, and discovery is ongoing; the Arizona action is presently stayed. We are currently investigating the claims at issue and believe we have meritorious defenses to such claims. Nevertheless, litigation is uncertain and we may not prevail in these suits. On or about February 18, 1999, a complaint was filed against us by a former consultant in the Superior Court of California for Santa Clara County alleging breach of contract, fraud and deceit, quantum meruit, promissory estoppel, and unjust enrichment and constructive trust. The former consultant alleges that he entered into an agreement with us that entitles him to an option for 28,462 shares of our common stock, and seeks relief consisting of $1,707,720 and other unquantified money damages, punitive damages, attorneys' fees, and a constructive trust over 28,462 shares of our common stock. We subsequently removed the matter to the United States District Court for the District of Northern California. On March 26, 1999, we answered the complaint, denied plaintiff's claims and asserted counterclaims for breach of contract, misappropriation of trade secret information, and breach of confidential relationship. We seek unquantified monetary relief, including exemplary damages, and attorneys' fees. On or about April 16, 1999, plaintiff filed a motion for a writ of attachment, by which he sought to attach 28,462 shares of our common stock. This motion was denied by the Court by Order dated May 25, 1999. Discovery is ongoing, and the Court has set a trial date for April 2000. We are currently investigating the claims at issue and believe we have meritorious defenses to the claims. Nevertheless, litigation is uncertain and we may not prevail in this suit. On January 26, 1999, Civix-DDI, LLC filed a complaint in the U.S. District Court in Colorado against us and 19 other defendants for infringement of two patents relating to electronic mapping systems. In July 1999 we settled this litigation by entering into a license agreement for these patents, pursuant to which we made a single lump sum royalty payment. We had discussions with a number of individuals in the past regarding employment by us and also hired and subsequently terminated a number of individuals as employees or consultants. Furthermore, primarily 59 during our early stage of development, our procedures with respect to the manner of granting options to new employees were not clearly documented. As a result of these factors, and in light of the receipt of the above claims, we have in the past received, and may in the future receive, similar claims from one or more individuals asserting rights to acquire shares of our stock or to receive cash compensation. We cannot predict whether such future claims will be made or the ultimate resolution of any currently outstanding or future claim. Naveen Jain, our Chief Executive Officer, has placed into escrow 2,000,000 shares of our stock beneficially owned by him to indemnify us and our directors for a period of five years for certain liabilities relating to events prior to September 30, 1998. The indemnification agreement, however, does not provide for indemnification for certain matters known by the Board prior to September 30, 1998 or losses less than $100,000. Satisfaction of liabilities through the issuance of escrowed shares could result in the recognition of future expenses, which could harm our results of operations. 60 MANAGEMENT Executive Officers and Directors The following table sets forth certain information as of August 1, 1999 with respect to our executive officers and directors:
Name Age Position - ---- --- -------- Naveen Jain............... 39 Chief Executive Officer and Chairman of the Board Bernee D. L. Strom........ 52 President, Chief Operating Officer and Director Vice President, Legal and Business Affairs and Ellen B. Alben............ 36 Secretary Douglas A. Bevis.......... 54 Vice President and Chief Financial Officer Tammy D. Halstead......... 36 Vice President and Chief Accounting Officer John E. Cunningham, IV (1)...................... 41 Director Peter L. S. Currie (2).... 42 Director Gary C. List (1).......... 47 Director Rufus W. Lumry, III....... 52 Director Carl Stork(2)............. 39 Director
- -------- (1) Member of Compensation Committee (2) Member of Audit Committee Naveen Jain founded InfoSpace.com in March 1996. Mr. Jain has served as our Chief Executive Officer since its inception, as its President since its inception to November 1998 and as its sole director from its inception to June 1998, when he was appointed Chairman of the Board upon the Board's expansion to five directors. From June 1989 to March 1996, Mr. Jain held various positions at Microsoft Corporation, including Group Manager for MSN, Microsoft's online service. From 1987 to 1989, Mr. Jain served as Software Development Manager for Tandon Computer Corporation, a PC manufacturing company. From 1985 to 1987, Mr. Jain served as Software Manager for UniLogic, Inc., a PC manufacturing company and from 1982 to 1985, he served as Product Manager and Software Engineer at Unisys Corporation/Convergent Technologies, a computer manufacturing company. Mr. Jain holds a B.S. from the University of Roorkee and an M.B.A. from St. Xavier's School of Management. Bernee D. L. Strom joined InfoSpace.com in November 1998 as President and Chief Operating Officer and became a director in December 1998. Since 1990, Ms. Strom served as President and Chief Executive Officer of the Strom Group, a venture investment and business advisory firm specializing in high technology. From April 1995 through June 1997, Ms. Strom served as President and Chief Executive Officer of USA Digital Radio, LP, a partnership of Westinghouse Electric Corporation and Gannett Co., Inc. that develops technology for AM and FM digital radio broadcasting. From 1990 through 1994, she was President and Chief Executive Officer of MBS Technologies, Inc., a software company. Ms. Strom was a founder of Gemstar Development Corporation, which developed the VCRPlus+(R) Instant Programmer, and served as its Vice President from its founding in 1989 to 1993. Ms. Strom serves as a member of the Board of Directors of the Polaroid Corporation, Krug International Corporation, MilleCom, an Internet-based communications company, Walker Digital, an intellectual property studio, and Quantum Development, a software and services company. She is a trustee of the National Public Radio Foundation and a member of CIGNA's Telecommunications Board of Advisors. She also serves as a member of the Board of Advisors of the J. L. Kellogg Graduate School of Management at Northwestern University. Ms. Strom holds a B.S., M.A. and Ph.D. from New York University and an M.B.A. from the Anderson Graduate School of Management at UCLA. Ellen B. Alben joined InfoSpace.com in May 1998 as Vice President, Legal and Business Affairs and Secretary. From April 1997 to May 1998, she was a senior attorney with Perkins Coie LLP. From September 1996 to April 1997, Ms. Alben served as a consultant to Paragon Trade Brands, Inc., a private- 61 label diaper manufacturer, and as special securities counsel to companies raising private financing. From September 1995 through June 1996, she served as Vice President, General Counsel and Secretary of Paragon Trade Brands. Paragon Trade Brands filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code in January 1997. From July 1994 to September 1995, she served as Senior Associate Counsel of The Hillhaven Corporation, a nursing home provider, and from June 1993 to July 1994 she served as Associate Counsel of Hillhaven. Prior to joining Hillhaven, Ms. Alben practiced law with private law firms for seven years, specializing in corporate securities, finance, and mergers and acquisitions. She holds a B.A. from Duke University and a J.D. from Stanford Law School. Douglas A. Bevis joined InfoSpace.com in August 1998 as Vice President and Chief Financial Officer. From September 1996 until July 1998, he served as Vice President and Chief Financial Officer of Apex Inc., a manufacturer of stand- alone switching systems and integrated server cabinet solutions for the client/server computing market, and served as Secretary of Apex from December 1996 to March 1998. From September 1990 to February 1996, Mr. Bevis was employed at CH2M HILL, Inc., a national environmental engineering consulting firm, where he served as Vice President and Treasurer from September 1990 to April 1993 and as Senior Vice President and Chief Financial Officer from April 1993 to February 1996. Mr. Bevis holds a B.A. from Beloit College, a Master of Architecture degree from the University of Minnesota and an M.B.A. from the Harvard Graduate School of Business Administration. Tammy D. Halstead joined InfoSpace.com in July 1998 as Corporate Controller. In December 1998, she was appointed Vice President and Chief Accounting Officer. From March 1997 to June 1998, she worked at the Seattle office of USWeb Corporation, an Internet professional services firm, where she served as Director of Finance and Administration and later as Vice President, Finance and Administration. From April 1996 to March 1997, she was the Director of Finance and Administration at Cosmix, Inc., which was acquired by USWeb Corporation in March 1997. From December 1993 to February 1996, she served as Controller of ConnectSoft, Inc., a software development company. Prior to joining ConnectSoft, Inc., she spent eight years in private industry with a division of Gearbulk Ltd., an international shipping company, and in public accounting with Ernst & Whinney (now Ernst & Young LLP). She holds a B.A. in Business Administration from Idaho State University and is a licensed CPA. John E. Cunningham, IV has served as a director of InfoSpace.com since July 1998. Since April 1995 he has served as President of Kellett Investment Corporation, an investment fund for later-stage, high-growth private companies. He is on the Board of Directors of Petra Capital, LLC. and Real Time Data, a consolidator of the vending services industry utilizing proprietary wireless information systems. During 1997, Mr. Cunningham was interim Chief Executive Officer of Real Time Data. From December 1994 to August 1996, he was President of Pulson Communications, Inc. From February 1991 to November 1994, he served as Chairman and Chief Executive Officer of RealCom Office Communications, a privately held telecommunications company that merged with MFS Communications Company, Inc., and was subsequently acquired by WorldCom, Inc. Mr. Cunningham holds a B.A. from Santa Clara University and an M.B.A. from the University of Virginia. Peter L. S. Currie has served as a director of InfoSpace.com since July 1998. Since May 1999, Mr. Currie has served as President of the Barksdale Group, a private venture capital investment firm. From April 1995 to May 1999, he held various management positions with Netscape Communications Corporation, most recently as its Executive Vice President and Chief Administrative Officer. From April 1989 to April 1995, Mr. Currie held various management positions at McCaw Cellular Communications, Inc., including Executive Vice President and Chief Financial Officer and Executive Vice President of Corporate Development. Before joining McCaw Cellular, he was a Principal at Morgan Stanley & Co. Incorporated. Mr. Currie holds a B.A. from Williams College and an M.B.A. from Stanford University. Gary C. List has served as a director of InfoSpace.com since July 1998. Since June 1997, Mr. List has served as Chief Executive of TDL Group Limited and Chief Executive Officer and Chairman of its primary 62 subsidiary, Thomson Directories Limited, a print directory publishing company. From October 1987 to June 1997, Mr. List held various executive positions with US West, Inc., including President of US West International Information Services and Vice President and Chief Financial Officer of US West Marketing Resources Group. Rufus W. Lumry, III has served as a director of InfoSpace.com since December 1998. Since 1992, Mr. Lumry has served as President of Acorn Ventures, Inc., a venture capital firm he founded. Prior to founding Acorn Ventures, Mr. Lumry served as a director and Chief Financial Officer of McCaw Cellular Communications. Mr. Lumry was one of the founders of McCaw in 1982, and retired from McCaw in 1990 as Executive Vice President and Chief Financial Officer. Mr. Lumry holds an A.B. from Harvard University and an M.B.A. from the Harvard Graduate School of Business Administration. Carl Stork has served as a director of InfoSpace.com since September 1998. Since April 1998, Mr. Stork has been General Manager, Hardware Strategy and Business Development, at Microsoft Corporation. Mr. Stork has held various other management positions at Microsoft since 1981. Mr. Stork holds a B.S. from Harvard University and an M.B.A. from the University of Washington. Board of Directors Our Restated Certificate of Incorporation and Restated Bylaws provide that the Board of Directors shall be composed of not less than five or more than nine directors, with the specific number to be set by resolution of the Board. We currently have seven directors. Our Board of Directors is divided into three classes, with each class to be as equal in number as possible. Each Class 1 director will serve until our next annual meeting of stockholders, each Class 2 director will serve until the following annual meeting of stockholders, and each Class 3 director will serve until the third ensuing annual meeting of stockholders. Thereafter, each newly elected director will serve for a term ending at the third annual meeting of stockholders following such election. Messrs. Cunningham and List serve as Class 1 directors, Messrs. Lumry and Stork and Ms. Strom serve as Class 2 directors and Messrs. Jain and Currie serve as Class 3 directors. Directors may be removed by stockholders only for cause. Committees of the Board of Directors The Compensation Committee consists of Messrs. List and Cunningham. The Compensation Committee reviews and approves the compensation and benefits for our executive officers, administers our Stock Incentive Plan and makes recommendations to the Board of Directors regarding such matters. The Audit Committee consists of Messrs. Currie and Stork. Among other functions, the Audit Committee makes recommendations to the Board of Directors regarding the selection of independent auditors, reviews the results and scope of the audit and other services provided by our independent auditors, reviews our balance sheet, statement of operations and cash flows and reviews and evaluates our internal control functions. Compensation Committee Interlocks and Insider Participation No member of the Board of Directors or of the Compensation Committee serves as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving as a member of our Board of Directors or Compensation Committee. Director Compensation We pay directors $750 for each Board of Directors meeting attended in person, $500 for each Board of Directors meeting attended by telephone and $500 for each committee meeting attended. We also 63 reimburse directors for travel expenses incurred to attend meetings of the Board of Directors or committee meetings. Directors are eligible to participate in the Stock Incentive Plan. See "--Benefit Plans--Stock Option Program for Nonemployee Directors." Limitation of Liability and Indemnification Matters Our Restated Certificate of Incorporation limits the liability of directors to the full extent permitted by Delaware law. Delaware law provides that a corporation's certificate of incorporation may contain a provision eliminating or limiting the personal liability of directors for monetary damages for breach of their fiduciary duties as directors, except for liability: . for any breach of their duty of loyalty to the corporation or its stockholders; . for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; . for unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or . for any transaction from which the director derived an improper personal benefit. Our Restated Bylaws provide that we shall indemnify our directors and officers and may indemnify its employees and agents to the full extent permitted by law. We believe that indemnification under our Restated Bylaws covers at least negligence and gross negligence on the part of indemnified parties. We have entered into agreements to indemnify our directors and executive officers. These agreements, among other things, indemnify our directors and officers for certain expenses (including attorneys' fees), judgments, fines and settlement amounts incurred by them in any action or proceeding arising out of their services as a director or officer. We believe that these agreements are necessary to attract and retain qualified directors and officers. On December 11, 1998, InfoSpace.com, all of our directors and Naveen Jain, our Chief Executive Officer, entered into an Indemnification Agreement whereby Mr. Jain placed 2,000,000 shares of our common stock beneficially owned by him in an escrow account to indemnify us and our directors for certain known and unknown liabilities that may have arisen prior to September 30, 1998. See "Business--Legal Proceedings." Executive Compensation The following table sets forth the compensation earned by our Chief Executive Officer in the fiscal year ended December 31, 1998. No executive officer earned more than $100,000 in salary and bonus from us in the fiscal year ended December 31, 1998. Naveen Jain, our Chief Executive Officer, received no salary or compensation for his services from the time of our inception to July 1998. On February 22, 1999, Mr. Jain was granted an option to purchase 175,000 shares of common stock, 150,000 of which will vest over a period of four years and 25,000 of which will vest on the sixth anniversary of the grant date or earlier if specified revenue and net income criteria are met. In addition, on February 22, 1999, our board of directors raised Mr. Jain's base compensation to $250,000 per year.
Annual Compensation ------------ Name and Principal Position Year Salary ($) --------------------------- ---- ------------ Naveen Jain, Chief Executive Officer..................... 1998 $ 62,500
64 Employment Agreement Pursuant to an employment agreement with Bernee D. L. Strom, our President and Chief Operating Officer, we have agreed to provide Ms. Strom with: . an annual salary of $250,000; . insurance and other employee benefits; . options to purchase 1,000,000 shares of common stock which vest over a period of four years; and . options to purchase an additional 500,000 shares of common stock that vest on the sixth anniversary of Ms. Strom's start date or earlier if specified revenue and net income criteria are met. In addition, the agreement contains a severance arrangement whereby Ms. Strom is entitled to receive a payment equal to one year of her base salary and benefits in the event we terminate her employment for any reason other than for cause. Benefit Plans Restated 1996 Flexible Stock Incentive Plan We adopted the Restated 1996 Flexible Stock Incentive Plan, or the Stock Incentive Plan, in 1996. The purpose of the Stock Incentive Plan is to provide an opportunity for employees, officers, directors, independent contractors and consultants of InfoSpace.com to acquire our common stock. The Stock Incentive Plan provides for grants of stock options, stock appreciation rights, or SARs, and stock awards. We have authorized an aggregate of 10,000,000 shares of common stock for issuance under the Stock Incentive Plan. At our Annual Meeting in May 1999, our stockholders adopted an amendment to the Stock Incentive Plan that provides that beginning with the year 2000, on the first day of our fiscal year, the number of shares reserved for issuance under the Stock Incentive Plan will automatically increase by the lesser of (a) 1,000,000 shares, (b) three percent (3%) of our outstanding shares at the end of our preceding fiscal year, and (c) a lesser amount as may be determined by our Board of Directors. As of June 30, 1999, options to purchase 5,624,561 shares of common stock were outstanding under the Stock Incentive Plan at a weighted average exercise price of $6.89 per share, and options to purchase 4,091,736 shares were available for future grant. Stock Option Grants. Either the Board of Directors or the Compensation Committee may administer the Stock Incentive Plan. The plan administrator has the authority to select individuals who are to receive options under the Stock Incentive Plan and the terms and conditions of each option so granted, including the type of option granted (incentive or nonqualified), the exercise price (which must be at least equal to the fair market value of our common stock on the date of grant with respect to incentive stock options), vesting provisions and the option term; provided, however, that no more than 2,000,000 shares may be granted in any fiscal year to an optionee (in addition to a maximum of 2,000,000 shares that may be granted to such optionee on his or her initial employment, which does not count against the annual limit). Stock Appreciation Rights. The plan administrator may grant SARs to selected individuals separately or in tandem with a stock option award. An SAR is an incentive award that permits the holder to receive, for each share covered by the SAR, an amount equal to the amount by which the fair market value of a share of our common stock on the date of exercise exceeds the exercise price of such share. The SAR may contain such terms, provisions and conditions not inconsistent with the Stock Incentive Plan as may be established by the plan administrator. Stock Awards. The plan administrator is authorized under the Stock Incentive Plan to issue shares of our common stock to eligible individuals on such terms and conditions and subject to such restrictions, if any, as the plan administrator may determine. 65 Adjustments. Proportional adjustments to the aggregate number of shares issuable under the Stock Incentive Plan and to outstanding awards are made for stock splits and other capital adjustments. Corporate Transactions. In the event of certain Corporate Transactions (as defined below), each outstanding option, SAR or stock award shall terminate and any restricted stock shall be reconveyed to or repurchased by the Company immediately prior to the specified effective date of the Corporate Transaction; provided, however, that to the extent permitted by applicable law, any unvested option, SARs or any restricted stock shall vest and become exercisable as to 25% of the unvested shares or become nonforfeitable as to 25% of the forfeitable shares, as the case may be, immediately prior to the specified effective date of the Corporate Transaction. Notwithstanding the foregoing, options, SARs or restricted stock shall not terminate if, in connection with the Corporate Transaction, they are to be assumed or substituted for by the successor corporation or its parent company, pursuant to options, SARs or restricted stock agreements providing substantially equal value and having substantially equivalent provisions as the options, SARs or restricted stock granted pursuant to the Stock Incentive Plan. If options, SARs or restricted stock purchase rights are not assumed or substituted for by the successor corporation or its parent company, such options, SARs or restricted stock purchase rights shall become exercisable as to an additional 25% of the unvested shares or forfeitable shares, as the case may be, immediately prior to the effective date of the Corporate Transaction. The remainder of each outstanding option, SAR or stock award will terminate and any restricted stock will be reconveyed to or repurchased by us prior to the effective date of the Corporate Transaction. "Corporate Transaction," as defined in the Stock Incentive Plan, includes: . a merger or consolidation in which we are not the surviving entity (other than a transaction to change our state of incorporation or a transaction in which holders of our outstanding securities immediately before such transaction own more than 50% of the voting power of the entity following such transaction); . the disposition of all or substantially all of our assets (other than a disposition in which stockholders immediately before such transaction own more than 50% of the total voting power of the purchaser or other transferee following such transaction); and . certain reverse mergers in which we are the surviving entity but our stockholders immediately prior to such merger do not hold more than 50% of our total voting power immediately following such merger. Stock Option Program for Nonemployee Directors Under the Stock Incentive Plan, we grant a nonqualified stock option to purchase 20,000 shares of common stock to each nonemployee director on the date the director is first appointed or elected to the Board of Directors. Nonemployee directors serving at the time of the adoption of the program each received an option to purchase 2,500 shares of common stock. On November 19, 1998, each nonemployee director received a supplemental option to purchase 20,000 shares of common stock. At each Annual Meeting of Stockholders, we will grant to each nonemployee director an additional nonqualified stock option to purchase 5,000 shares of common stock immediately following such Annual Meeting of Stockholders, except for those nonemployee directors who were elected to the Board of Directors at such Annual Meeting of Stockholders or within the three- month period prior to such Annual Meeting of Stockholders. All options granted under the program for nonemployee directors fully vest on the first anniversary of the date of such grant. 1998 Employee Stock Purchase Plan We adopted the 1998 Employee Stock Purchase Plan in August 1998. The Purchase Plan is intended to qualify under Section 423 of the Internal Revenue Code of 1986 and permits eligible employees to purchase our common stock through payroll deductions of up to 15% of their compensation. Under the Purchase 66 Plan, no employee may purchase stock worth more than $25,000 in any calendar year, valued as of the first day of each offering period. In addition, owners of 5% or more of our common stock may not participate in the Purchase Plan. We have authorized an aggregate of 900,000 shares of common stock for issuance under the Purchase Plan. The Purchase Plan is implemented with six-month offering periods. Offering periods begin on each February 1 and August 1. The first offering period began on December 15, 1998, the date of our initial public offering, and ended on July 31, 1999. Participants purchase common stock under the Purchase Plan at a price equal to the lesser of 85% of the fair market value on the first day of an offering period and 85% of the fair market value on the last day of an offering period. The Purchase Plan does not have a fixed expiration date, but may be terminated by the Board of Directors at any time. No shares of common stock have been issued under the Purchase Plan. In the event of a merger, consolidation, or acquisition by another corporation of all or substantially all of our assets, or our liquidation or dissolution, the last day of an offering period on which a participant may purchase stock will be the business day immediately preceding the effective date of such event, unless the plan administrator provides for the assumption or substitution of the outstanding purchase rights. INEX Options Upon the closing of our combination with INEX, we have agreed to assume outstanding options that will be exercisable for approximately 104,584 shares of our common stock. 67 CERTAIN TRANSACTIONS On April 10, 1996, Naveen Jain purchased 20,000,000 shares of our common stock for an aggregate price of $2,000. In April 1996, Mr. Jain made an interest-free loan to us in the amount of $150,000, which we fully repaid. On April 10, 1996, we granted an option to purchase 500,000 shares of common stock at an exercise price of $0.01 per share to Anuradha Jain, Mr. Jain's wife, in connection with her employment as our Director of Human Resources, and granted an option to purchase 300,000 shares of common stock at an exercise price of $0.01 per share to Punam Agrawal, Mr. Jain's sister-in-law, in connection with her employment as our Director of Marketing. In a private placement with other investors on May 21, 1998, we sold 50,000 shares of common stock at $2.00 per share to Siddarth Agrawal, Mr. Jain's brother-in-law, and 200,000 shares of common stock to TEOCO Corporation at $2.00 per share. In addition, on June 29, 1999, we entered into an agreement with TEOCO Corporation for the development of certain electronic commerce technology, pursuant to which we are obligated to pay TEOCO an aggregate of $400,000 if certain development milestones are met. The work by TEOCO Corporation is scheduled to be completed by the end of October 1999. Atul Jain, Mr. Jain's brother, is President of TEOCO Corporation. On May 21, 1998, we completed a private placement in which we sold shares of common stock at a purchase price of $2.00 per share and issued warrants to purchase shares of common stock at a weighted average exercise price of $2.935 per share as follows:
No. of No. of Shares Name Shares Subject to Warrants ---- --------- ------------------- Acorn Ventures-IS, LLC....................... 1,895,000 3,377,458 Kellet Partners LLP.......................... 312,500 460,562 John and Carolyn Cunningham.................. 62,500 153,524
Rufus W. Lumry, III, one of our directors, is the principal stockholder, sole director and President of Acorn Ventures, Inc., the sole member of Acorn Ventures. John E. Cunningham, IV, one of our directors, is President of Kellett Investment Corporation, an affiliate of Kellett Partners. Mr. Cunningham disclaims beneficial ownership of such shares held by Kellett Partners. Carolyn Cunningham is John Cunningham's spouse. Pursuant to the terms of the May private placement, on August 6, 1998, we issued shares of common stock and warrants to purchase common stock at a weighted average exercise price of $2.935 in exchange for the termination of certain anti-dilution rights as follows:
No. of No. of Shares Name Shares Subject to Warrants ---- --------- ------------------- Acorn Ventures-IS, LLC....................... 33,360 60,094 Kellet Partners LLP.......................... 4,854 7,156 John and Carolyn Cunningham.................. 964 2,372
Acorn Ventures, Kellett Partners and John and Carolyn Cunningham are entitled to certain registration rights with respect to the shares of common stock and the common stock issuable upon exercise of the warrants purchased in the private placement. See "Description of Capital Stock--Registration Rights." On May 21, 1998, we entered into Consulting Agreements with Acorn Ventures, John E. Cunningham, IV and Kellett Partners, pursuant to which we are required to pay reasonable out-of-pocket expenses incurred by them in connection with their services as consultants. In addition, we have entered into agreements to indemnify Acorn Ventures, John E. Cunningham, IV and Kellett Partners against expenses (including attorneys' fees), judgments, fines and settlement amounts incurred by them in any action or proceeding in which they are parties or participants arising out of their services as consultants. These consulting services include assistance in defining our business strategy, identifying and meeting with sources of financing and assisting us in structuring and negotiating such financings. The Consulting Agreements have terms of five years and are terminable by either party upon breach of the Consulting Agreement by the other party or on 30 days' notice. Other than the reimbursement of out-of- pocket expenses, there is no other cash compensation under the Consulting Agreements. 68 In July 1998, we sold 50,000 shares of common stock at $4.00 per share in a private placement transaction to the Bevis Family Trust. Douglas A. Bevis, our Vice President and Chief Financial Officer, is Trustee of the Bevis Family Trust and is a beneficiary of the Bevis Family Trust, along with his four siblings. Mr. Bevis disclaims beneficial ownership of such shares except as to the extent of his proportionate interest in the trust. In addition, in July 1998, we sold 160,000 shares of common stock at $3.75 per share to Mr. Bevis pursuant to our 1998 Stock Purchase Rights Plan. In July 1998, we sold 25,000 shares of common stock at $4.00 per share to Steven Brady in a private placement with other investors. Mr. Brady is the brother of Ellen B. Alben, our Vice President, Legal and Business Affairs and Secretary. Thomson Directories Limited entered into a joint venture agreement with us in July 1998. Gary C. List, one of our directors, is Chief Executive Officer of Thomson and a beneficial shareholder and the Chief Executive Officer of TDL Group Limited, the holding company of Thomson. We sold Mr. List 25,000 shares of common stock at $4.00 per share in a private placement with other investors in July 1998. On August 6, 1998, we sold shares of common stock at a purchase price of $4.00 per share in a private placement as follows:
No. of Name Shares ---- ------- Acorn Ventures-IS, LLC............................................. 125,000 Kellet Partners LLP................................................ 281,250 John and Carolyn Cunningham........................................ 31,250
Acorn Ventures, Kellett Partners and John and Carolyn Cunningham are entitled to certain registration rights with respect to the shares purchased in this private placement. See "Description of Capital Stock--Registration Rights." We believe that all the transactions set forth above were made on terms no less favorable to us than could have been obtained from unaffiliated third parties. Any future transactions, including loans, between us and our officers, directors and principal stockholders and their affiliates will be approved by a majority of the Board of Directors, including a majority of the independent and disinterested directors, and will be on terms no less favorable to us than could be obtained from unaffiliated third parties. We have entered into indemnification agreements with each of our executive officers and directors. See "Management--Limitation of Liability and Indemnification Matters." On December 11, 1998, InfoSpace.com, all of our directors and Naveen Jain entered into an Indemnification Agreement. See "Business--Legal Proceedings" and "Management--Limitation of Liability and Indemnification Matters." 69 PRINCIPAL STOCKHOLDERS The following table sets forth certain information with respect to the beneficial ownership of our outstanding common stock as of June 30, 1999 for (a) each person or entity that we know beneficially owns more than 5% of our common stock, (b) each of our directors, (c) our Chief Executive Officer and (d) all of our directors and executive officers as a group. Except as otherwise indicated, we believe that the beneficial owners of the common stock listed below, based on information furnished by such owners, have sole voting and investment power with respect to such shares.
Shares Beneficially Owned(1) ----------------------- Name of Beneficial Owner Number Percent ------------------------ ------------ ---------- Naveen Jain (2)...................................... 16,135,623 33.8% c/o InfoSpace.com, Inc. 15375 N.E. 90th Street Redmond, WA 98052 Acorn Ventures-IS, LLC (3) .......................... 5,502,612 10.8% 1309 114th Avenue S.E. Suite 200 Bellevue, WA 98004 Rufus W. Lumry, III (3).............................. 5,502,612 10.8% John E. Cunningham, IV (4)........................... 246,486 * Gary C. List (5)..................................... 37,500 * Peter L. S. Currie (5)............................... 12,500 * Carl Stork........................................... 80,000 * Bernee D. L. Strom (6)............................... 220,000 * All directors and executive officers as a group (10 persons) (7)........................................ 22,583,213 43.8%
- -------- * Less than 1% (1) Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, shares of common stock subject to options or warrants held by that person that are currently exercisable or will become exercisable within 60 days are deemed outstanding, while such shares are not deemed outstanding for purposes of computing the percentage ownership of any other person. Unless otherwise indicated in the footnotes below, the persons and entities named in the table have sole voting and investment power with respect to all shares beneficially owned, subject to community property laws where applicable. (2) Represents 14,933,332 shares of common stock held in the name of Naveen and Anuradha Jain, 1,000,000 shares of common stock held by the Jain Family Irrevocable Trust, 2,000,000 shares of common stock held by Naveen Jain GRAT No. 1, 2,000,000 shares of common stock held by Anuradha Jain GRAT No. 1 and 422,291 shares subject to options exercisable by Anuradha Jain within 60 days of June 30, 1999. Anuradha Jain is Mr. Jain's spouse. Mr. Jain has placed 2,000,000 shares of common stock held by Naveen Jain GRAT No. 1 in escrow pursuant to an Indemnification Agreement dated as of December 11, 1998. Mr. Jain retains voting control over those shares placed in escrow. See "Certain Transactions." (3) Includes 3,437,552 shares of common stock issuable upon exercise of warrants currently exercisable. Rufus W. Lumry, III is the principal stockholder, sole director and President of Acorn Ventures, Inc., the sole member of Acorn Ventures. (4) Includes 155,896 shares of common stock issuable upon exercise of warrants currently exercisable. Also includes 59,376 shares of Common Stock held by Clear Fir Partners, LP, an affiliate of Mr. Cunningham. Also includes 2,500 shares subject to options exercisable within 60 days of June 30, 1999. (5) Includes 2,500 shares subject to options exercisable within 60 days of June 30, 1999. (6) Includes 200,000 shares subject to options exercisable within 60 days of June 30, 1999. (7) Includes 4,249,712 shares subject to options and warrants exercisable within 60 days of June 30, 1999. 70 DESCRIPTION OF CAPITAL STOCK Our authorized capital stock consists of 200,000,000 shares of common stock, $0.0001 par value per share, and 15,000,000 shares of preferred stock, $0.0001 par value per share. The following summary of certain provisions of our common stock and preferred stock does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of our Certificate of Incorporation, which is included as an exhibit to the registration statement of which this prospectus is a part, and by the provisions of applicable law. Common Stock As of July 31, 1999, there were 47,400,652 shares of common stock outstanding held by approximately 217 holders of record. There will be 48,196,071 shares of common stock outstanding after giving effect to (1) the issuance of the 746,392 shares of our common stock offered in this prospectus and (2) the issuance of 49,027 shares of our common stock issued directly to INEX shareholders at the closing of our combination with them. The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders. There are no cumulative voting rights. Subject to preferences that may be applicable to any outstanding shares of preferred stock, the holders of common stock are entitled to receive ratably such dividends, if any, as may be declared by the Board of Directors out of funds legally available for the payment of dividends. In the event of a liquidation, dissolution or winding up of InfoSpace.com, the holders of common stock are entitled to share ratably in all assets remaining after payment of liabilities and liquidation preferences of any outstanding shares of preferred stock. Holders of common stock have no preemptive rights or rights to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to the common stock. All outstanding shares of common stock are fully paid and nonassessable, and the shares of common stock to be issued upon completion of this offering will be fully paid and nonassessable. See "Risk Factors--Management Owns a Large Percentage of Our Stock" and "Dividend Policy." Preferred Stock No shares of preferred stock are outstanding, however, upon the closing of the combination with INEX, one share of preferred stock will be issued to the trustee as described below. Pursuant to our Certificate of Incorporation, the Board of Directors has the authority, without further action by the stockholders, to issue up to 15,000,000 shares of preferred stock in one or more series and to fix the designations, powers, preferences, privileges and relative, participating, optional or special rights and the qualifications, limitations or restrictions thereof, including dividend rights, conversion rights, voting rights, terms of redemption and liquidation preferences, any or all of which may be greater than the rights of the common stock. The Board of Directors, without stockholder approval, can issue preferred stock with voting, conversion or other rights that could adversely affect the voting power and other rights of the holders of common stock. Preferred stock could thus be issued quickly with terms calculated to delay or prevent a change of control or make removal of management more difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of the common stock, and may adversely affect the voting and other rights of the holders of common stock. We have no plans to issue any preferred stock. See "Risk Factors--Certain Antitakeover Provisions May Affect the Price of Our Stock." Our Voting Share Prior to the closing of our combination with INEX, we will enter into a voting and exchange trust agreement with InfoSpace.com Canada Holdings and Montreal Trust Company of Canada, as trustee. Unless our charter or applicable law prevents us from doing so, the voting and exchange trust agreement will require us to issue a voting share to the trustee who will hold the voting share in trust for the benefit of the holders of exchangeable shares. The voting share will entitle the trustee to vote at meetings of the holders of 71 our common stock. For each exchangeable share which is not held by us or our subsidiaries, the trustee will have the number of votes to which a holder of one share of our common stock is entitled with respect to any vote. Unless our charter or applicable law requires otherwise, the trustee and the holders of our common stock will vote together as a single class in the election of directors and in all matters which are submitted to a vote of our stockholders. The voting share will not entitle the trustee to receive dividends. In the event of our dissolution, liquidation or the winding up of our affairs, the trustee will receive an amount equal to the par value of the voting share. This amount will be adjusted to reflect the effect of any stock split, stock dividend, combination or similar change on the voting share. When there are no longer any outstanding exchangeable shares other than those exchangeable shares which are held by us or our subsidiaries, the voting share will cease to have any rights. In such event, we will redeem the voting share for an amount equal to the par value of the voting share and it will automatically return to being an authorized but unissued share of our preferred stock. Warrants As of June 30, 1999, there were outstanding warrants to purchase 6,595,720 shares of common stock. Five investors hold warrants to purchase an aggregate of 4,057,046 and 70,626 shares of common stock, which expire on May 21, 2008 and August 6, 2008, respectively, at a weighted average exercise price of $2.93 per share. One investor holds a warrant to purchase 955,934 shares at an exercise price of $0.01 per share. This warrant expires on October 30, 2002. On August 24, 1998, in connection with the agreement relating to our white pages directory services, we issued to AOL warrants to purchase up to 1,979,832 shares of common stock, which warrants vest in 16 equal quarterly installments over four years, based on the delivery by AOL of a minimum number of searches on our white pages directory service and vested as to 371,219 shares on August 1, 1999. The warrants have an exercise price of $6.00 per share. INEX Warrants and Convertible Debentures Upon consummation of our combination with INEX, we will assume warrants that are exercisable for approximately 316,839 shares of our common stock and convertible debentures that are convertible into 21,326 shares of our common stock. See "Plan of Distribution--INEX Warrants and Convertible Debentures." Antitakeover Effects of Certain Provisions of Certificate of Incorporation and Washington and Delaware Law; Right of First Negotiation As noted above, our Board of Directors, without stockholder approval, has the authority under our Certificate of Incorporation to issue preferred stock with rights superior to the rights of the holders of common stock. As a result, preferred stock could be issued quickly and easily, could adversely affect the rights of holders of common stock and could be issued with terms calculated to delay or prevent a change of control or make removal of management more difficult. Election and Removal of Directors. Effective with the first annual meeting of stockholders following this offering, our Bylaws provide for the division of our Board of Directors into three classes, as nearly equal in number as possible, with the directors in each class serving for a three-year term, and one class being elected each year by our stockholders. See "Management--Board of Directors." Directors may be removed only for cause. This system of electing and removing directors may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of InfoSpace.com and may maintain the incumbency of the Board of Directors, as it generally makes it more difficult for stockholders to replace a majority of directors. Approval for Certain Business Combinations. Our Certificate of Incorporation requires that certain business combinations (including a merger, share exchange and the sale, lease, exchange, mortgage, pledge, transfer or other disposition or encumbrance of a substantial part of our assets other than in the usual and 72 regular course of business) be approved by the holders of not less than two- thirds of the outstanding shares, unless such business combination has been approved by a majority of the Board of Directors, in which case the affirmative vote required shall be a majority of the outstanding shares. Stockholder Meetings. Under our Certificate of Incorporation and Bylaws, the stockholders may call a special meeting only upon the request of holders of at least 30% of the outstanding shares. Additionally, the Board of Directors, the Chairman of the Board and the President may call special meetings of stockholders. Requirements for Advance Notification of Stockholder Nominations and Proposals. Our Bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the Board of Directors or a committee thereof. Washington Statute. The laws of Washington, where our principal executive offices are located, impose restrictions on certain transactions between certain foreign corporations and significant stockholders. Chapter 23B.19 of the Washington Business Corporation Act, or the WBCA, prohibits a "Target Corporation," with certain exceptions, from engaging in certain "Significant Business Transactions" with a person or group of persons which beneficially owns 10% or more of the voting securities of the Target Corporation (an "Acquiring Person") for a period of five years after such acquisition, unless the transaction or acquisition of shares is approved by a majority of the members of the Target Corporation's board of directors prior to the time of acquisition. Such prohibited transactions include, among other things, a merger or consolidation with, disposition of assets to, or issuance or redemption of stock to or from, the Acquiring Person, termination of 5% or more of the employees of the Target Corporation as a result of the Acquiring Person's acquisition of 10% or more of the shares or allowing the Acquiring Person to receive any disproportionate benefit as a stockholder. After the five-year period, a Significant Business Transaction may take place as long as it complies with certain fair price provisions of the statute or is approved at an annual or special meeting of stockholders. A Target Corporation includes a foreign corporation if: . the corporation has a class of voting stock registered pursuant to Section 12 or 15 of the Securities Exchange Act of 1934; . the corporation's principal executive office is located in Washington; . any of: . more than 10% of the corporation's stockholders of record are Washington residents; . more than 10% of its shares of record are owned by Washington residents; or . 1,000 or more of its stockholders of record are Washington residents; . a majority of the corporation's employees are Washington residents or more than 1,000 Washington residents are employees of the corporation; and . a majority of the corporation's tangible assets are located in Washington or the corporation has more than $50 million of tangible assets located in Washington. A corporation may not "opt out" of this statute. If we meet the definition of a Target Corporation, Chapter 23B.19 of the WBCA may have the effect of delaying, deferring or preventing a change of control of the Company. Delaware Statute. We are subject to Section 203 of the Delaware General Corporation law, which prohibits a publicly held Delaware corporation from engaging in a "business combination" with an 73 "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder, unless: . prior to such date, the board of directors of the corporation approves either the business combination or the transaction that resulted in the stockholder's becoming an interested stockholder; . upon consummation of the transaction that resulted in the stockholder's becoming an interested stockholder, the interested stockholder owns at least 85% of the outstanding voting stock, excluding shares held by directors, officers and certain employee stock plans; or . on or after the consummation date the business combination is approved by the board of directors and by the affirmative vote at an annual or special meeting of stockholders of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder. For purposes of Section 203, a "business combination" includes, among other things, a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and an "interested stockholder" is generally a person who, together with affiliates and associates of such person: . owns 15% or more of the corporation's voting stock; or . is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within the prior three years. AOL Agreement. Pursuant to certain agreements with AOL, if we receive an unsolicited proposal, or we determine to solicit proposals or otherwise enter into discussions that would result in a sale of a controlling interest in InfoSpace.com or other merger, asset sale or other disposition that effectively results in a change of control (a "Disposition"), then we are required to give written notice to AOL, and AOL has seven days to provide notice to us of its desire to negotiate in good faith with us regarding a Disposition involving AOL. In the event that AOL timely delivers such a notice, then we will negotiate exclusively and in good faith with AOL regarding a Disposition for a period of 30 days from the date of delivery of our initial notice to AOL, after which we will be free to negotiate a Disposition with other third parties if we and AOL cannot in good faith come to terms. If such a Disposition is not consummated within five months from the date of delivery of our initial notice to AOL, the process described above will again apply. AOL's right of first negotiation could have the effect of delaying, deterring or preventing a change of control. These charter provisions, provisions of Washington and Delaware law and AOL's right of first negotiation may have the effect of delaying, deterring or preventing a change of control. Registration Rights Pursuant to certain Investor Rights Agreements dated as of May 21, 1998, three investors holding an aggregate of 2,229,178 shares of common stock and warrants to purchase 3,593,448 shares of common stock (the "Holders") are entitled to certain rights with respect to the registration of such shares under the Securities Act of 1933. If we propose to register any of our securities under the Securities Act, either for our own account or for the account of other security holders, the Holders are entitled to notice of such registration and to include shares of common stock in such registration at our expense. Additionally, the Holders are entitled to certain demand registration rights pursuant to which they may require us to file a registration statement under the Securities Act at our expense with respect to their shares of common stock, and we are required to use our commercially reasonable efforts to effect such registration. Further, the Holders may require us to file up to three additional registration statements on Form S-3 (and no more than two in any calendar year), and we will bear the expense for up to one such registration in any calendar year. All of these registration rights are subject to certain conditions and limitations, among them the right of the underwriters of an offering to limit the number of shares included in such registration. 74 Pursuant to a Stockholder Rights Agreement dated as of August 6, 1998, six investors holding an aggregate of 925,000 shares of common stock are entitled to notice of registration if we propose to register any of our securities under the Securities Act, either for our own account or for the account of other security holders, and are entitled to include shares of common stock in such registration at our expense. These registration rights are subject to certain conditions and limitations, among them the right of the underwriters of an offering to limit the number of shares included in such registration. In connection with the acquisition of all the outstanding membership units of YPI, the former members of YPI holding an aggregate of 170,000 shares of common stock may require us to file additional registration statements on Form S-3 at the expense of those stockholders requesting such registration. AOL, which holds a warrant to purchase 1,979,832 shares of common stock, is entitled to notice of registration if we propose to register any of our securities under the Securities Act, either for our own account or for the account of other security holders, and is entitled to include shares of common stock issuable upon the exercise of such warrant in such registration at our expense. Further, AOL may require us to file up to four additional registration statements on Form S-3, and we will bear the expense for such registrations. These registration rights are subject to certain conditions and limitations, among them the right of the underwriters of an offering to limit the number of shares included in such registration. Transfer Agent And Registrar The transfer agent and registrar for the common stock is ChaseMellon Shareholder Services, Seattle, Washington. Nasdaq National Market Listing Our common stock is listed on the Nasdaq National Market under the symbol "INSP." 75 PLAN OF DISTRIBUTION You should consult your own tax advisors with respect to the United States, Canadian and other tax consequences of exchanging your exchangeable shares for shares of our common stock as described below. For more information, see "Income Tax Considerations." Your Exchangeable Shares On September 13, 1999, the shareholders of INEX will vote on whether to approve a plan of arrangement pursuant to Section 182 of the Business Corporations Act (Ontario). In accordance with the plan of arrangement, INEX shareholders will receive either exchangeable shares issued by InfoSpace.com Canada Holdings or our common shares. Additionally, we will assume all obligations under INEX's warrants and convertible debentures, and upon conversion thereof shares of our common stock will be issued. The exchangeable shares and our common shares will be issued at a ratio of .20405 shares for each INEX share. We have filed with the SEC a registration statement on Form S-1 with respect to our common stock being offered under this prospectus. This prospectus forms a part of the registration statement. We have agreed to use our reasonable best efforts to keep the registration statement effective until there are no exchangeable shares outstanding. We have not engaged a broker, dealer or underwriter in connection with the offering of our common stock described in this prospectus. You may obtain our common stock in exchange for your exchangeable shares in the following ways: . you may require InfoSpace.com Canada Holdings to exchange your exchangeable shares for an equivalent number of shares of our common stock. For more information, see "--Retraction of Exchangeable Shares." . InfoSpace.com Canada Holdings will automatically redeem your exchangeable shares for shares of our common stock at September 15, 2010 or upon the occurrence of certain events. For more information, see "--Redemption of Exchangeable Shares" and "--Early Redemption." . upon our liquidation or the liquidation of InfoSpace.com Canada Holdings, you may be required to, or may choose to, exchange your exchangeable shares for shares of our common stock. For more information, see "-- Liquidation Rights with Respect to InfoSpace.com Canada Holdings" and "-- Liquidation Rights with Respect to InfoSpace.com." We will bear all of the expenses of this distribution. We estimate that these expenses will total approximately $125,000. How You May Retract Or Redeem Your Exchangeable Shares Retraction of Exchangeable Shares Holders of the exchangeable shares will be entitled at any time following the combination to retract (i.e. require InfoSpace.com Canada Holdings to redeem) any or all of the exchangeable shares held by such holder for a retraction price per share equal to the market price of our common stock on the last business day prior to the date you request redemption plus, on the designated payment date therefor, all declared but unpaid dividends. Holders of the exchangeable shares may effect such retraction by presenting a certificate or certificates to InfoSpace.com Canada Holdings or the Trustee representing the number of exchangeable shares the holder desires to retract together with a duly executed retraction request indicating the number of exchangeable shares the holder desires to retract and the date upon which the holder desires to receive the InfoSpace.com common shares, and such other documents as may be required to effect the retraction. When a holder requests InfoSpace.com Canada Holdings to redeem exchangeable shares, InfoSpace.com Nova Scotia Company will have an overriding right to purchase all but not less than all of the 76 retracted shares, at a purchase price per share equal to the market price of our common stock on the last business day prior to the date you request redemption plus, on the designated payment date therefor, to the extent it is not paid by InfoSpace.com Canada Holdings, all declared but unpaid dividends. Upon receipt of a request for retraction, InfoSpace.com Canada Holdings will immediately notify InfoSpace.com Nova Scotia Company. InfoSpace.com Nova Scotia Company must then advise InfoSpace.com Canada Holdings within five business days as to whether it will exercise its retraction right. If InfoSpace.com Nova Scotia Company does not so advise InfoSpace.com Canada Holdings, InfoSpace.com Canada Holdings will notify the holder as soon as possible thereafter that InfoSpace.com Nova Scotia Company will not exercise the right. If InfoSpace.com Nova Scotia Company advises InfoSpace.com Canada Holdings that InfoSpace.com Nova Scotia Company will exercise the right within such five business day period, then provided the request is not revoked by the holder as described below, the retraction request shall thereupon be considered only to be an offer by the holder to sell the shares to InfoSpace.com Nova Scotia Company in accordance with its right. A holder may revoke its request for retraction, in writing, at any time prior to the close of business on the business day preceding the retraction date, in which case the shares will neither be purchased by InfoSpace.com Nova Scotia Company nor be redeemed by InfoSpace.com Canada Holdings. If the holder does not revoke its retraction request on the retraction date, the shares will be purchased by InfoSpace.com Nova Scotia Company or redeemed by InfoSpace.com Canada Holdings, as the case may be, in each case as set out above. InfoSpace.com Canada Holdings or InfoSpace.com Nova Scotia Company, as the case may be, will deliver the aggregate of the price per share market price of our common stock on the last business day prior to the date of retraction request plus, on the designated payment date therefor, all declared but unpaid dividends to the holder recorded in the securities register for the exchangeable shares or at the address specified in the holder's retraction request or, if so requested in the retraction request, will hold the same for pick up by the holder at the registered office of InfoSpace.com Canada Holdings or the office of the transfer agent as specified by InfoSpace.com Canada Holdings, in each case, less any amounts required to be deducted and withheld therefrom on account of tax. If, as a result of solvency requirements or applicable law, InfoSpace.com Canada Holdings is not permitted to redeem all retracted shares tendered by a retracting holder, InfoSpace.com Canada Holdings will redeem only those shares tendered by the holder (rounded down to a whole number of shares) as would not be contrary to such provisions of applicable law. The Trustee, on behalf of the holder of any retracted shares not so redeemed by InfoSpace.com Canada Holdings, will require InfoSpace.com to purchase the shares not redeemed on the retraction date pursuant to the exchange right. Redemption of Exchangeable Shares Subject to applicable law and the overriding right of InfoSpace.com Nova Scotia Company to purchase all of the exchangeable shares from all of the holders of exchangeable shares (other than us and our affiliates) on a certain date in exchange for our common shares, on an established date no earlier than September 15, 2010 InfoSpace.com Canada Holdings will redeem all of the then outstanding exchangeable shares for a redemption price per share equal to the market price of our common stock on the last business day prior to the date we request redemption plus, on the designated payment date therefor, all declared but unpaid dividends. InfoSpace.com Canada Holdings will, at least 60 days prior to the relevant date, or such number of days as the board of directors of InfoSpace.com Canada Holdings may determine to be reasonably practicable under the circumstances in respect of a redemption date arising in connection with certain events, provide the registered holders of the exchangeable shares with written notice of the proposed redemption of the exchangeable shares by InfoSpace.com Canada Holdings or the purchase of the exchangeable shares by InfoSpace.com Nova Scotia Company pursuant to the redemption call right described below. On or after the redemption date, upon the holder's presentation and surrender of the certificates representing the exchangeable shares and such other documents as may be required at the office of the transfer agent or the registered office of InfoSpace.com Canada Holdings, InfoSpace.com Canada Holdings 77 will deliver the price per share equal to the market price of our common stock on the last business day prior to the date of redemption request plus, on the designated payment date therefor, all declared but unpaid dividends as at such date to the holder by mailing the same to the holder at the address of the holder recorded in the securities register for the exchangeable shares or by holding the same for pick up by the holder at the registered office of InfoSpace.com Canada Holdings or the office of the transfer agent as specified in the written notice of redemption in each case less any amounts required to be deducted and withheld therefrom on account of tax. InfoSpace.com Nova Scotia Company will have an overriding right to purchase on the redemption date all of the exchangeable shares then outstanding (other than exchangeable shares held by us and our affiliates) for a purchase price per share equal to the market price of our common stock on the last business day prior to the date you request redemption plus, on the designated payment date therefor, to the extent it is not paid by InfoSpace.com Canada Holdings, all declared but unpaid dividends. Upon the exercise of this right, holders will be obligated to sell their exchangeable shares to InfoSpace.com Nova Scotia Company. If InfoSpace.com Nova Scotia Company exercises this right, InfoSpace.com Canada Holdings's right and obligation to redeem the exchangeable shares on such redemption date will terminate. Early Redemption In certain circumstances, InfoSpace.com Canada Holdings has the right to require a redemption of the exchangeable shares prior to September 15, 2010. An early redemption may occur upon (i) there being fewer than 57,000 exchangeable shares outstanding (other than exchangeable shares held by us and our affiliates); (ii) the occurrence of a merger, amalgamation, tender offer, material sale of shares or rights or interests therein or thereto or similar transactions involving us, or any proposal to do so; (iii) a proposal for certain matters in respect of which holders of exchangeable shares are entitled to vote as shareholders of InfoSpace.com Canada Holdings; or (iv) the failure to approve or disapprove, as applicable, certain matters in respect of which holders of exchangeable shares are entitled to vote as shareholders of InfoSpace.com Canada Holdings regarding changes required to maintain the equivalence of exchangeable shares and our common shares. If, prior to September 15, 2010, we are involved in any merger, amalgamation, tender offer, material sale of shares or rights or interests therein or thereto or similar transactions, or any proposal to do so, provided that the board of directors of InfoSpace.com Canada Holdings determines, in good faith and in its sole discretion, that it is not reasonably practicable to substantially replicate the terms and conditions of the exchangeable shares in connection with such a transaction and that the redemption of all but not less than all of the outstanding exchangeable shares is necessary to enable the completion of such transaction in accordance with its terms, the board of directors of InfoSpace.com Canada Holdings may accelerate the redemption date discussed above to such date prior to September 15, 2010 as it may determine, upon such number of days prior written notice to the registered holders of the exchangeable shares as the board of directors of InfoSpace.com Canada Holdings may determine to be reasonably practicable in such circumstances. An example of an event referred to above at (iii) is one to approve an amalgamation involving InfoSpace.com Canada Holdings where the amalgamation proposes changes to the exchangeable shares that, if contained in a proposed amendment to InfoSpace.com Canada Holdings's articles, would entitle the holders thereof to a vote under applicable corporate law or a sale of all or substantially all of the assets of InfoSpace.com Canada Holdings where the exchangeable shares would be affected differently from any other class of shares of InfoSpace.com Canada Holdings. Such an event excludes that described at (iv) above, and, for greater certainty, excludes any matter in respect of which holders of exchangeable shares are entitled to vote (or instruct the Trustee to vote) in their capacity as Beneficiaries under (and as that term is defined in) the Voting and Exchange Trust Agreement. If, prior to September 15, 2010, such an event is proposed, provided that the board of directors of InfoSpace.com Canada Holdings has determined, in good faith and in its sole discretion, that it is not reasonably practicable to accomplish the business purpose 78 intended by the event, which business purpose must be bona fide and not for the primary purpose of causing the occurrence of a redemption date, in any other commercially reasonable manner that does not result in such an event, the redemption date shall be the business day prior to the record date for any meeting or vote of the holders of the exchangeable shares to consider the event and the board of directors of InfoSpace.com Canada Holdings shall give such number of days prior written notice of such redemption to the registered holders of the exchangeable shares as the board of directors of InfoSpace.com Canada Holdings may determine to be reasonably practicable in such circumstances. An event described at (iv) above means any matter in respect of which holders of exchangeable shares are entitled to vote as shareholders of InfoSpace.com Canada Holdings in order to approve or disapprove, as applicable, any change to, or in the rights of the holders of, the exchangeable shares, where the approval or disapproval, as applicable, of such change would be required to maintain the equivalence of the exchangeable shares and the InfoSpace.com common shares. If, prior to September 15, 2010, such an event is proposed and the holders of the exchangeable shares fail to take the necessary action at a meeting or other vote of holders of exchangeable shares, to approve or disapprove, as applicable, the event, the redemption date shall be the business day following the day on which the holders of the exchangeable shares failed to take such action and the board of directors of InfoSpace.com Canada Holdings shall give such number of days prior written notice of such redemption to the registered holders of the exchangeable shares as the board of directors of InfoSpace.com Canada Holdings may determine to be reasonably practicable in such circumstances. See "Income Tax Considerations--Canadian Federal Income Tax Considerations." Liquidation Rights with Respect to InfoSpace.com Canada Holdings In the event of the liquidation, dissolution or winding-up of InfoSpace.com Canada Holdings or any other proposed distribution of the assets of InfoSpace.com Canada Holdings among its shareholders for the purpose of winding-up its affairs, holders of the exchangeable shares will have, subject to applicable law, preferential rights to receive from InfoSpace.com Canada Holdings, for each exchangeable share held, an amount equal to the market price of our common stock on the last business day prior to the liquidation. Upon the occurrence of such liquidation, dissolution or winding-up, InfoSpace.com Nova Scotia Company will have an overriding right to purchase all of the outstanding exchangeable shares (other than exchangeable shares held by us and our affiliates) from the holders thereof on the effective date of such liquidation, dissolution or winding-up for a purchase price per share equal to the market price of our common stock on the last business day prior to the liquidation, plus, to the extent it is not paid by InfoSpace.com Canada Holdings, the full amount of all prior dividends, if any, declared and unpaid on exchangeable shares. Upon, and during the continuance of, insolvency of InfoSpace.com Canada Holdings, a holder of exchangeable shares will be entitled to instruct the Trustee to exercise the exchange right with respect to any or all of the exchangeable shares held by such holder, thereby requiring us to purchase such exchangeable shares from the holder. As soon as practicable following the occurrence of such an insolvency of InfoSpace.com Canada Holdings or any event which may, with the passage of time and/or the giving of notice, lead to insolvency of InfoSpace.com Canada Holdings, we and InfoSpace.com Canada Holdings will give written notice thereof to the Trustee. As soon as practicable thereafter, the Trustee will then notify each holder of exchangeable shares of such event or potential event and will advise the holder of its rights with respect to the exchange right. The purchase price payable by us for each exchangeable share purchased under this right will be satisfied by the issuance of one share of our common stock plus, to the extent not paid by InfoSpace.com Canada Holdings, the full amount of all prior dividends, if any, declared and unpaid on exchangeable shares. Liquidation Rights with Respect to InfoSpace.com In order for the holders of the exchangeable shares to participate on a pro rata basis with the holders of our common stock in the event of our liquidation, on the fifth business day prior to the effective date of such 79 an event, each exchangeable share will automatically be exchanged for an equivalent number of shares of our common stock, plus, to the extent not paid by InfoSpace.com Canada Holdings, the full amount of all prior dividends, if any, declared and unpaid on exchangeable shares. Upon a holder's request and surrender of exchangeable share certificates, duly endorsed in blank and accompanied by such instruments of transfer as we may reasonably require, we will deliver to such holder certificates representing an equivalent number of shares of our common stock plus, to the extent not paid by InfoSpace.com Canada Holdings, the full amount of all prior dividends, if any, declared and unpaid on exchangeable shares for each exchangeable share exchanged pursuant to this automatic exchange right. For a description of certain of our obligations with respect to the dividend and liquidation rights of the holders of exchangeable shares, see "InfoSpace.com Support Obligation" below. Certain Rights and Restrictions of Exchangeable Shares Dividend Rights Holders of exchangeable shares will be entitled to receive, subject to applicable law, dividends (i) in the case of a cash dividend declared on our common stock, in an amount in cash for each exchangeable share corresponding to the cash dividend declared on each of our common shares, (ii) in the case of a stock dividend declared on our common stock to be paid in shares of our common stock, in such number of exchangeable shares for each exchangeable share as is equal to the number of our common shares to be paid on each share of our common stock, or (iii) in the case of a dividend declared on our common stock in property other than cash or our common shares, in such type and amount of property as is the same as, or economically equivalent to, the type and amount of property declared as a dividend on each of our common shares. Cash dividends on the exchangeable shares are payable in U.S. dollars or the Canadian dollar equivalent thereof, at the option of InfoSpace.com Canada Holdings. The declaration date, record date and payment date for dividends on the exchangeable shares will be the same as the relevant date for the corresponding dividends on the shares of our common stock. Ranking The exchangeable shares will be entitled to a preference over the common shares and the preferred shares of InfoSpace.com Canada Holdings and any other shares ranking junior to the exchangeable shares with respect to the payment of dividends and the distribution of assets in the event of a liquidation, dissolution or winding-up of InfoSpace.com Canada Holdings, whether voluntary or involuntary, or any other distribution of the assets of InfoSpace.com Canada Holdings, among its shareholders for the purpose of winding-up its affairs. Certain Restrictions InfoSpace.com Canada Holdings will not, without the approval of the holders of the exchangeable shares, as set forth below under "Amendment and Approval": (a) pay any dividends on the common shares or the preferred shares of InfoSpace.com Canada Holdings, or any other shares ranking junior to the exchangeable shares, other than stock dividends payable in common shares or preferred shares of InfoSpace.com Canada Holdings, or any such other shares ranking junior to the exchangeable shares, as the case may be; (b) redeem, purchase or make any capital distribution in respect of common shares or preferred shares of InfoSpace.com Canada Holdings, or any other shares ranking junior to the exchangeable shares; (c) redeem or purchase any other shares of InfoSpace.com Canada Holdings ranking equally with the exchangeable shares with respect to the payment of dividends or on any liquidation distribution; or (d) issue any exchangeable shares or any other shares of InfoSpace.com Canada Holdings ranking equally with, or superior to, the exchangeable shares other than by way of stock dividends to the holders of such exchangeable shares. 80 The restrictions in clauses (a), (b), (c) and (d) above will not apply at any time when the dividends on the outstanding exchangeable shares corresponding to dividends declared and paid on our common stock have been declared and paid in full. Amendment and Approval The rights, privileges, restrictions and conditions attaching to the exchangeable shares may be added to, changed or removed only with the approval of the holders thereof. Any such approval or any other approval or consent to be given by the holders of the exchangeable shares will be deemed to have been sufficiently given if given in accordance with applicable law subject to a minimum requirement that such approval or consent be evidenced by a special resolution passed by not less than two-thirds of the votes cast on such resolution at a meeting of the holders of exchangeable shares duly called and held at which holders of at least fifty percent (50%) of the then outstanding exchangeable shares are present or represented by proxy. In the event that no such quorum is present at such meeting within one-half hour after the time appointed therefor, then the meeting will be adjourned to such place and time (not less than five days later) as may be designated by the Chairman of such meeting. At such adjourned meeting, the holders of exchangeable shares present or represented by proxy may transact the business for which the meeting was originally called and a special resolution passed thereat by the affirmative vote of not less than two-thirds of the votes cast on such resolution will constitute the approval or consent of the holders of the exchangeable shares. Our Support Obligation Pursuant to an Exchangeable Share Support Agreement, we will make the following covenants for so long as any exchangeable shares (other than exchangeable shares owned by us or our affiliates) remain outstanding: (i) we will not declare or pay dividends on our common stock unless InfoSpace.com Canada Holdings is able to declare and pay and simultaneously declares or pays, as the case may be, an equivalent dividend on the exchangeable shares; (ii) we will advise InfoSpace.com Canada Holdings in advance of the declaration of any dividend on our common stock and ensure that the declaration date, record date and payment date for dividends on the exchangeable shares are the same as that for the corresponding dividend on our common stock; (iii) we will ensure that the record date for any dividend declared on our common stock is not less than ten business days after the declaration date of such dividend; (iv) we will take all actions and do all things reasonably necessary or desirable to enable and permit InfoSpace.com Canada Holdings, in accordance with applicable law, to pay to the holders of the exchangeable shares the applicable InfoSpace.com Canada Holdings amounts described above in the event of a liquidation, dissolution or winding-up of InfoSpace.com Canada Holdings, a retraction request by a holder of exchangeable shares or a redemption of exchangeable shares by InfoSpace.com Canada Holdings; and (v) we will take all actions and do all things reasonably necessary or desirable to enable and permit InfoSpace.com Nova Scotia Company, in accordance with applicable law, to perform its obligations arising upon the exercise by it of its rights, including the delivery of our common stock in accordance with the provisions of the applicable right. The Exchangeable Share Support Agreement and the provisions of the exchangeable shares provide that, without the prior approval of InfoSpace.com Canada Holdings and the holders of the exchangeable shares as set forth above under "Amendment and Approval," we will not issue or distribute additional shares of our common stock, securities exchangeable for or convertible into or carrying rights to acquire our common stock or rights to subscribe therefor or other assets to all or substantially all holders of shares of our common stock, nor change our common stock, unless the same or an economically equivalent distribution on or change to the exchangeable shares (or in the rights of the holders thereof) is made simultaneously. The InfoSpace.com Canada Holdings board of directors is conclusively empowered to determine in good faith and in its sole discretion whether any corresponding distribution on or change to the exchangeable shares is the same as or economically equivalent to any proposed distribution on or change to our common stock. In the event of any proposed tender offer, share exchange offer, issuer bid, take-over bid or similar transaction with respect to our common stock which is recommended by our board of directors 81 and in connection with which the exchangeable shares are not redeemed by InfoSpace.com Canada Holdings or purchased by InfoSpace.com Nova Scotia Company pursuant to the redemption call right, we will use reasonable efforts to enable holders of exchangeable shares to participate in such transaction to the same extent and on an economically equivalent basis as the holders of shares of our common stock. InfoSpace.com Canada Holdings is required to notify us and InfoSpace.com Nova Scotia Company of the occurrence of certain events, such as the liquidation, dissolution or winding-up of InfoSpace.com Canada Holdings, and of its receipt of a retraction request from a holder of exchangeable shares. Under the Exchangeable Share Support Agreement, we have agreed not to exercise any voting rights attached to the exchangeable shares owned by us or any of our affiliates on any matter considered at meetings of holders of exchangeable shares. With the exception of administrative changes for the purpose of adding covenants for the protection of the holders of the exchangeable shares, making certain necessary amendments or curing ambiguities or clerical errors (in each case provided that our board of directors and the board of directors of each of InfoSpace.com Canada Holdings and InfoSpace.com Nova Scotia Company are of the opinion that such amendments are not prejudicial to the interests of the holders of the exchangeable shares), the Exchangeable Share Support Agreement may not be amended without the approval of the holders of the exchangeable shares as set forth above under "Amendment and Approval." INEX Warrants and Convertible Debentures On August 13, 1999, there were approximately 582,750 INEX common share purchase warrants outstanding which, when vested, would be exercisable to acquire a total of 582,750 INEX common shares at prices per share of between Cdn.$3.75 to Cdn.$8.00 with various expiry dates to 2002. On August 13, 1999, there were approximately 250,000 INEX special warrants, series A which are exercisable, for no additional payment, to acquire a total of 250,000 INEX common shares with an expiry date in 2000. On August 13, 1999, there were approximately 360,000 INEX special warrants, series B which are exercisable on or prior to an expiry date in 2000, for no additional payment, to acquire a total of 360,000 units, each unit consisting of a an INEX common share and INEX common share purchase warrant. The common share purchase warrants have an exercise price of Cdn.$8.00 per share with an expiry date in 2000. On August 13, 1999, there were convertible debentures of INEX outstanding which are convertible into a total of 104,515 INEX common shares. Upon the closing of the combination, we will assume INEX's obligations under all of the above INEX warrants and convertible debentures. Each warrant will be exchanged for a warrant to purchase a number of shares of our common stock that is equal to the product obtained by multiplying .20405 by the number of INEX common shares subject to such warrant (rounded down to a whole number of shares). Each convertible debenture will be exchanged for a debenture convertible into a number of shares of our common stock that is equal to the product obtained by multiplying .20405 by the number of INEX common shares subject to such convertible debentures (rounded down to a whole number of shares). The option will provide for an exercise price per share of our common stock equal to the exercise price per INEX common share of such INEX warrant or convertible debenture immediately prior to the consummation of the combination divided by .20405. The term to expiry, conditions to and the manner of exercising, vesting schedule, and all other terms and conditions of such warrant or convertible debenture shall otherwise be unchanged, and any document or agreement previously evidencing an INEX warrant or convertible debenture shall thereafter evidence and be deemed to evidence the assumed option. 82 Resale of Exchangeable Shares and Our Common Shares Received in the Transaction The exchangeable shares and our common shares issuable to the INEX shareholders upon the closing of our combination with INEX will not be registered under the Securities Act of 1933, as amended (the "Securities Act"). Such shares will instead be issued in reliance upon the exemption provided by Section 3(a)(10) of the Securities Act. Section 3(a)(10) exempts from registration securities issued in exchange for one or more outstanding securities where the terms and conditions of the issuance and exchange of such securities have been approved by any court of competent jurisdiction, after a hearing upon the fairness of the terms and conditions of the issuance and exchange at which all persons to whom such securities will be issued have the right to appear. The Court is authorized to conduct a hearing to determine the fairness of the terms and conditions of the Arrangement, including the proposed issuance of securities in exchange for other outstanding securities. The Court entered an Interim Order on August 20, 1999 and, subject to the approval of the Arrangement by the INEX shareholders, a hearing on the fairness of the Arrangement will be held on September 14, 1999 by the Court. The registration statement of which this prospectus forms a part is intended to register our common shares to be issued upon exchange of the exchangeable shares and exercise of the convertible securities assumed. The exchangeable shares and our common shares received in exchange for INEX shares in the combination will be freely transferable under U.S. Federal securities laws, except for exchangeable shares held by persons who are deemed to be "affiliates" (as such term is defined under the Securities Act) of INEX prior to the transaction which may be resold by them only in transactions permitted by the resale provisions of Rule 145(d)(1), (2), or (3) promulgated under the Securities Act or as otherwise permitted under the Securities Act. Rule 145(d)(1) generally provides that "affiliates" of either INEX or us may not resell the exchangeable shares and our common shares unless such sale is effected pursuant to an effective registration statement or pursuant to the volume, current public information, manner of sale and timing limitations of Rule 144 promulgated under the Securities Act. These limitations generally require that any sales made by an affiliate in any three-month period shall not exceed the greater of one percent of the outstanding shares of the securities being sold or the average weekly trading volume over the four calendar weeks preceding the placement of the sell order and that such sales be made in unsolicited, open market "brokers transactions." Rules 145(d)(2) and (3) generally provide that the foregoing limitations lapse for our non-affiliates after a period of one or two years, respectively, depending upon whether certain of our currently available information continues to be available. Persons who may be deemed to be affiliates of an issuer generally include individuals or entities that control, are controlled by, or are under common control with, such issuer and may include certain officers and directors of such issuer as well as principal shareholders of such issuer. In the event that this registration statement is declared effective, our common shares issuable upon exchange of the exchangeable shares and upon exercise of the convertible securities that we assume from INEX will be transferable in the manner and under the circumstances described in the foregoing paragraph. In the event that this registration statement is not declared effective, our common shares issuable upon exchange of the exchangeable shares and upon exercise of the convertible securities that we assume from INEX will be "restricted" securities within the meaning of and as under the Securities Act and may not be offered or sold except in accordance with Regulation S under the Securities Act, pursuant to registration under the Securities Act or pursuant to an available exemption from registration under the Securities Act. Accordingly, we have agreed, in the event that this registration statement is not declared effective, to file a registration statement under the Securities Act with the Securities and Exchange Commission prior to the closing of the combination in order to register the resale of our common shares issuable upon exchange of the exchangeable shares and exercise of the convertible securities that we assume from INEX (other than employee stock options). We have agreed to use our best efforts to cause that registration statement to become effective and to remain effective until the date on which all shares of our common stock have been issued. Under the terms of the combination, we may suspend the use of such registration statement for such time as may be necessary to update or amend it to correct any misstatement or omission of a material fact. In addition, we may delay the filing if any such amendment or supplement to such registration statement, 83 for a period not to exceed ninety days, if we in good faith determine the such amendment or supplement would require us to disclose a material development or potential material development and such disclosure would have a material adverse effect on us. In the event that this registration statement is not declared effective, holders of exchangeable shares who acquire our common shares pursuant to the exchange of exchangeable shares or the exercise of the convertible securities which we assume from INEX after the fourth anniversary of the effective date of the registration statement pertaining to the resale of our common stock may not offer or sell our common stock except in compliance with an available exemption from registration under the Securities Act. We have agreed to register under the Securities Act on Form S-8 the shares of our common stock issuable upon exercise of employee options issued in exchange for INEX employee options. Our common shares issuable upon exercise of those options may be resold without restriction in the United States by persons who are not our affiliates. Optionholders who are our affiliates must comply with the volume, current public information and manner of sale limitations of Rule 144 under the Securities Act. Prior to the closing of the combination each of the INEX affiliates will enter into agreements restricting them in connection with the requirements for pooling-of-interests accounting treatment and restricting the sale, pledge or other disposal of exchangeable shares, our common shares and INEX shares. Future Issuances of Shares The articles of InfoSpace.com Canada Holdings authorize the issuance of an unlimited number of exchangeable shares. The exchangeable shares that are authorized may be issued, without approval of holders of exchangeable shares, at such time or times, to such persons and for such consideration as InfoSpace.com Canada Holdings may determine, except as may otherwise be required by applicable laws and subject to all dividends on the outstanding exchangeable shares corresponding to dividends declared and paid on the outstanding shares of our common stock having been declared and paid at the relevant times. 84 INCOME TAX CONSIDERATIONS Canadian Federal Income Tax Considerations You should consider the following discussion of Canadian federal income taxes before you acquire exchangeable shares or exchange exchangeable shares for common stock. The following summarizes the principal Canadian federal income tax considerations that generally apply to you if, under Canadian federal income tax law, you are considered to . hold as capital property . your exchangeable shares, . the voting rights relating to those shares, and . the other ancillary rights relating to those shares; . deal at arm's length with us, INEX, InfoSpace.com Canada Holdings, and InfoSpace.com Nova Scotia Company. If we are or will be a foreign affiliate of you under the Canadian federal income tax laws, this summary will not apply to you. This summary does not address the tax consequences of the transactions, including the arrangement, in which you acquire the exchangeable shares, or the exercise of the convertible securities which we assumed from INEX, or the sale of the shares obtainable upon exercise of those convertible securities. Under Canadian federal income tax laws, your exchangeable shares will generally be considered to be capital property to you unless you are considered to hold your exchangeable shares . in the course of carrying on a business, or . in an adventure in the nature of trade. If you are resident in Canada but your shares might not otherwise qualify as capital property, you may be entitled to make an irrevocable election to qualify those shares as capital property. If you do not hold your exchangeable shares as capital property, you should consult your own advisers regarding your particular circumstances. If you are a "financial institution" under the Canadian federal income tax laws applicable to securities held by financial institutions, the summary does not apply to you; instead, you should consult your own advisers regarding the application to you of the "mark-to-market" rules. The current provisions of the Income Tax Act (Canada) and regulations, the current provisions of the income tax treaty between Canada and the United States and counsel's understanding of the current administrative practices of Revenue Canada form the basis of this summary. This summary takes into account the proposed amendments to the Income Tax Act (Canada) and regulations that the Minister of Finance has publicly announced prior to the date of this prospectus and assumes that those proposed amendments will be enacted in their present form. Counsel can give no assurances, however, that the proposed amendments will be enacted in the form proposed, or at all. Except for the proposed amendments, this summary does not take into account or anticipate any changes in law, whether by legislative, administrative or judicial decision or action, nor does it take into account provincial, territorial or foreign income tax legislation or considerations, which may differ from the Canadian federal income tax considerations described herein. We have neither sought nor obtained an advance tax ruling from Revenue Canada to confirm the tax consequences of any of the transactions we describe. WHILE THIS SUMMARY ADDRESSES THE MATERIAL CANADIAN FEDERAL INCOME TAX CONSIDERATIONS GENERALLY APPLICABLE TO YOU, IT IS NOT INTENDED TO BE, NOR SHOULD IT BE CONSTRUED TO BE, LEGAL, BUSINESS OR TAX ADVICE TO YOU. FURTHERMORE, AS REQUIRED BY THE "PLAIN ENGLISH" REQUIREMENTS OF THE SEC, 85 THIS SUMMARY MAKES MINIMAL USE OF DEFINED TERMS. YOU SHOULD KNOW THAT MANY OF THE WORDS AND PHRASES USED IN THIS SUMMARY HAVE VERY SPECIFIC MEANINGS UNDER CANADIAN INCOME TAX LAW. THEREFORE, YOU SHOULD CONSULT YOUR OWN TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES APPLICABLE TO YOU IN YOUR PARTICULAR CIRCUMSTANCES. For Canadian tax purposes, you must express all amounts, including dividends, adjusted cost base and proceeds of disposition, in Canadian dollars, and you must convert amounts denominated in United States dollars into Canadian dollars based on the United States dollar exchange rate generally prevailing when those amounts arise. Shareholders Resident In Canada If you are resident or deemed to be resident in Canada under Canadian federal income tax laws, the following portion of the summary applies to you. Dividends on Exchangeable Shares. If you are an individual, the dividends that you receive or are deemed to receive on your exchangeable shares will be included in computing your income. Generally, they will be subject to the gross-up and dividend tax credit rules that normally apply to taxable dividends received from taxable Canadian corporations. If you are a corporation, the dividends that you receive or are deemed to receive on your exchangeable shares will be included in computing your income. If you are a corporation, you must include dividends that you receive or are deemed to receive on the exchangeable shares in your income and these dividends will normally be deductible in computing your taxable income unless you are a specified financial institution, in which case the deduction is generally denied. If you are a private corporation or any other corporation resident in Canada controlled or deemed to be controlled by or for the benefit of an individual (other than a trust) or a related group of individuals (other than trusts), you may be liable to pay a refundable tax of 33 1/3 percent on dividends that you receive or are deemed to receive on the exchangeable shares that are deductible in computing your taxable income. If you are a "Canadian-controlled private corporation," you may be liable to pay an additional refundable tax of 6 2/3 percent on dividends you receive or are deemed to receive that are not deductible in computing your taxable income. Under Canadian federal income tax laws, the exchangeable shares will be taxable preferred shares and short-term preferred shares and term preferred shares. Accordingly, InfoSpace.com Canada Holdings will be subject to a 66 2/3 percent tax on dividends (other than excluded dividends) that it pays or is deemed to pay on the exchangeable shares. In certain circumstances, InfoSpace.com Canada Holdings may be entitled to deductions that will substantially offset the impact of this tax. If you are a corporation, dividends that you receive or are deemed to receive on the exchangeable shares will not be subject to the 10 percent tax under Part IV.1 of the Income Tax Act (Canada). If the Company or any person with whom the Company does not deal at arm's length for purposes of the Income Tax Act (Canada) is a "specified financial institution" at the time a dividend is paid on an exchangeable share and you are a corporation, then, subject to the exemption described below, the dividends that you receive or are deemed to receive will not be deductible in computing your taxable income. Accordingly, as discussed above, those dividends will be fully includible in computing your income. Generally, we will be a specified financial institution for these purposes if . we are, or are related to, an entity or corporation that is a bank, a trust company, a credit union, or an insurance corporation, or . our principal business, or the principal business of an entity or corporation to which we are related, is (a) the lending of money to persons with whom we deal at arm's length, (b) the purchasing of debt obligations issued by persons with whom we deal at arm's length, or (c) a combination of both (a) and (b). 86 The same rules will apply to determine whether a person with whom we do not deal at arm's length is a specified financial institution for these purposes. Nonetheless, if you are a corporation, you will not be denied the dividend deduction if at the time you receive a dividend or are deemed to receive a dividend . the exchangeable shares are listed on a prescribed stock exchange in Canada, . we control InfoSpace.com Canada Holdings, and . you (together with any person with whom you do not deal at arm's length, with any partnership of which you or that person is a member, and with any trust of which you or that person is a beneficiary) do not receive dividends on more than 10 percent of the issued and outstanding exchangeable shares. Redemption Or Exchange Of Exchangeable Shares If InfoSpace.com Canada Holdings redeems (or you retract) your exchangeable shares, you will generally be deemed to have received a dividend equal to the amount, if any, by which the fair market value of the consideration you receive as part of the redemption or retraction exceeds the aggregate of the paid-up capital (as determined under Canadian federal income tax laws) of your exchangeable shares at the time InfoSpace.com Canada Holdings redeems or you retract your exchangeable shares. The amount of any deemed dividend will generally be subject to the tax treatment described above under "Dividends." On the redemption of your exchangeable shares, you will also be considered to have disposed of your exchangeable shares for proceeds of disposition equal to the paid-up capital of your exchangeable shares redeemed or retracted. In general, you will realize a capital gain (or a capital loss) equal to the amount by which the proceeds of disposition of the exchangeable shares, net of reasonable costs of disposition exceed (or are less than) the adjusted cost base of such shares (see "-- Taxation of Capital Gain or Capital Loss" below). If you are a corporation, in some circumstances, the amount of any dividend you are deemed to have received may be treated as proceeds of disposition and not as a dividend. If you exchange exchangeable shares with InfoSpace.com Nova Scotia Company for shares of common stock, other than on the redemption or retraction of exchangeable shares, in general, you will realize a capital gain (or a capital loss) to the extent the proceeds of disposition of the exchangeable shares, net of any reasonable costs of disposition, exceed (or are less than) the adjusted cost base of such shares to you. For these purposes, the proceeds of disposition will be the aggregate fair market value, at the time of the exchange, of the consideration you receive (see "--Taxation of Capital Gain or Capital Loss" below). Because of the rights relating to the exchangeable shares, you cannot control whether you will receive shares of common stock upon the redemption of your exchangeable shares or upon InfoSpace.com Nova Scotia Company's purchase of your exchangeable shares. As described above, the tax consequences to you of a redemption by InfoSpace.com Canada Holdings differ from those of an exchange with InfoSpace.com Nova Scotia Company. Taxation Of Capital Gain Or Capital Loss You must include in your income for the year of disposition the taxable portion of any capital gain you realize. The taxable portion of any capital gain you realize (the "taxable capital gain") will be three-quarters of that amount. You must deduct against such taxable capital gains for the year of disposition three-quarters of any capital loss you realize in that year. If three-quarters of any capital loss you realize in a taxation year exceeds your taxable capital gains in that year, you may carry back the excess up to three taxation years or forward indefinitely and deduct those excess amounts against net taxable capital gains in those other years, subject to certain limitations and in certain circumstances. 87 If you are an individual or trust, other than certain trusts, capital gains that you realize may give rise to alternative minimum tax. If you are a Canadian-controlled private corporation, you may be liable to pay an additional refundable tax of 6 2/3 percent on taxable capital gains. If you are a corporation, subject to certain limitations and under certain circumstances, you may be required to reduce the amount of any capital loss arising when you dispose or are deemed to dispose of any exchangeable shares by the amount of dividends you received or are deemed to have received on those shares. Similar rules may apply to you if you are: . a corporation that is a member of a partnership that owns exchangeable shares; . a corporation that is a beneficiary of a trust that owns exchangeable shares; . a member of a partnership that is a member of another partnership that owns exchangeable shares; . a member of a partnership that is a beneficiary of a trust that owns exchangeable shares; . a beneficiary of a trust that is a member of a partnership that owns exchangeable shares; or . a beneficiary of a trust that is the beneficiary of another trust that owns exchangeable shares. Taxation of Our Common Stock Acquisition And Disposition Of Shares Of Our Common Stock. The cost amount of shares of common stock that you receive on the retraction, redemption or exchange of exchangeable shares will in general be equal to the fair market value of those shares at that time. If you dispose or are deemed to have disposed of shares of common stock, generally, you will have a capital gain (or capital loss) to the extent that the proceeds of disposition, net of any reasonable costs of disposition, exceed (or are less than) the adjusted cost base to you of such shares immediately before the disposition. In computing the adjusted cost base of a share of our common stock, you must average the cost of the share with the adjusted cost base of any other shares of our common stock that you hold as capital property at that time. Dividends On Shares Of Common Stock. In computing your income, you must include dividends that you receive or are deemed to receive on shares of common stock. If you are an individual, these dividends will not be subject to the gross-up and the dividend tax credit rules that normally apply to taxable dividends received from taxable Canadian corporations. If you are a corporation, these dividends will not be deductible in computing your taxable income. In certain circumstances, you may be entitled to a foreign tax credit in respect of any U.S. withholding tax payable in connection with these dividends. If you are a Canadian-controlled private corporation, you may be liable to pay an additional refundable tax of 6 2/3 percent on such dividends. Foreign Property Information Reporting. If you are a "specified Canadian entity" for a taxation year or a fiscal period and your total cost amounts of "specified foreign property," including the shares of common stock, at any time in the year or fiscal period exceed Cdn. $100,000, you must file an information return for the year or period disclosing prescribed information, including . your cost amount, . any dividends you received in the year, and . any gains or losses you realized in the year, in respect of that property. With some exceptions, generally, if you are a taxpayer resident in Canada in the year, you will be a specified Canadian entity. You should consult your own advisors about whether you must comply with these rules. 88 Shareholders Not Resident In Canada The following portion of the summary is applicable to shareholders who, for purposes of the Canadian Tax Act, have not been and will not be resident or deemed to be resident in Canada at any time while they have held INEX common shares or will hold exchangeable shares or shares of common stock. Dividends On Exchangeable Shares. Dividends received or deemed to have been received by a non-resident holder of exchangeable shares will be subject to Canadian non-resident withholding tax at a rate of 25%, unless the rate is reduced under the provisions of an applicable tax treaty. Redemption Or Exchange Of Exchangeable Shares. Refer to the discussion above for a description of the manner in which dividends will be deemed to have been received by a shareholder and proceeds of disposition will be computed on the redemption or exchange of exchangeable shares. Dividend withholding tax, as described above, will apply to dividends deemed to have been received by a non- resident holder on the redemption of an exchangeable share by InfoSpace.com Canada Holdings. Unless the exchangeable shares are listed on a prescribed stock exchange at the time they are disposed of, they will be taxable Canadian property of a non- resident holder. As a result, you will be subject to tax under the Canadian Tax Act on gains realized on the exchange of exchangeable shares for shares of common stock unless an applicable bilateral income tax convention between Canada and the jurisdiction in which you reside exempts such gains from Canadian tax. You will be required to comply with certain notification requirements imposed by section 116 of the Canadian Tax Act. Specifically, you must notify Revenue Canada of your intention to dispose of the exchangeable shares prior to such disposition or within ten days after such disposition. Revenue Canada will issue a certificate in respect of such proposed disposition or disposition provided you have complied with the requirements imposed by the Canadian Tax Act, which may in some circumstances include payment of an amount equal to 33 1/3 percent of the amount by which the proceeds of disposition exceed your adjusted cost base of the exchangeable shares, or the provision of acceptable security in respect of the disposition. Evidence of that adjusted cost base acceptable to Revenue Canada may have to be provided. Unless InfoSpace.com Canada Holdings or InfoSpace.com Nova Scotia Company, as the case may be, is in receipt of a copy of such certificate on or prior to the date of the redemption or exchange, it will withhold 33 1/3 percent of the payment otherwise due to the shareholder. If InfoSpace.com Canada Holdings or InfoSpace.com Nova Scotia Company, as the case may be, has not received such certificate within 30 days of the end of the month in which the redemption or exchange occurs, it will be required to remit such withheld amount in cash to the Receiver General, as tax on your behalf and will take all such action necessary to convert on your behalf the 33 1/3 percent of the payment withheld to cash proceeds for the remittance to the Receiver General. The relevant notification form is Revenue Canada form T2062. A copy of the form will be sent to INEX shareholders who indicate that they are not resident in Canada. United States Federal Income Tax Considerations You should consider the following discussion of United States federal income taxes before you acquire exchangeable shares or exchange exchangeable shares for common stock. This discussion does not address all the federal income tax considerations that may be relevant to you. In addition, this discussion does not address the tax consequences of transactions in which you acquire your exchangeable shares, including the arrangement, or the exercise of the convertible securities which we will assume from INEX. Furthermore, this discussion does not address any foreign, state, or local tax considerations. 89 WE STRONGLY URGE YOU TO CONSULT YOUR OWN TAX ADVISORS REGARDING THE SPECIFIC TAX CONSIDERATIONS THAT APPLY TO YOU. The laws, regulations, court decisions, and IRS rulings and regulations effective on the date of this prospectus form the basis of this discussion. This discussion is for general information only. No law, court decision, or ruling or regulation directly addresses certain of the tax consequences of the ownership of instruments and rights comparable to the exchangeable shares and the rights attached to those shares. Consequently, some aspects of the tax treatment of the arrangement, including the exchange of exchangeable shares for shares of common stock, are uncertain. We have neither sought nor obtained any advance income tax ruling regarding the tax consequences of any of the transactions we describe. Tax Considerations That Apply To U.S. Holders If you are: . an individual citizen or resident of the United States, . a corporation or partnership created in the United States or under the laws of the United States or of any state, or . a United States estate or trust, and you hold your exchangeable shares as capital assets, the following tax considerations will generally apply to you. Exchange Of Exchangeable Shares. Except as we describe below, when you exchange your exchangeable shares for shares of common stock, you will generally recognize gain or loss. Your gain or loss will equal the difference between (a) the fair market value of the shares of common stock at the time you exchange your exchangeable shares and (b) your tax basis in the exchangeable shares you exchange. Your gain or loss will generally be a capital gain or loss. You may, however, recognize ordinary income with respect to any declared but unpaid dividends on the exchangeable shares. A capital gain or loss will be long-term capital gain or loss if your holding period for the exchangeable shares is more than one year. Your tax basis in the shares of common stock will be their fair market value at the time of the exchange. Your holding period for the shares of common stock that you receive will begin on the day after the exchange. In view of the likelihood that you will recognize gain or loss when you exchange the exchangeable shares for shares of common stock, you may wish to consider delaying the exchange until either . you intend to dispose of the shares of common stock that you receive in exchange for your exchangeable shares, or . the exchange may be characterized as tax-free. The gain or loss you realize when you exchange your exchangeable shares for shares of common stock generally will be treated as United States source gain or loss. Under the terms of the United States-Canada income tax treaty, however, your gain may be treated as sourced in Canada. Subject to certain limitations, you may be entitled to credit your United States taxes for any Canadian tax imposed on the exchange. If you are ineligible for a credit for any Canadian tax that you pay, you may be entitled to deduct that tax in computing your United States taxable income. Distributions On The Exchangeable Shares. If any distributions are paid to you as a holder of exchangeable shares, we and InfoSpace.com Canada Holdings intend to treat those distributions as distributions from InfoSpace.com Canada Holdings, rather than from us. We and InfoSpace.com Canada Holdings can not assure you, however, that the IRS or a court would agree that our intended treatment is correct. Assuming that treatment is proper, these distributions will be treated as dividends and will be 90 taxable to you as ordinary income if InfoSpace.com Canada Holdings has earnings and profits. Those dividends generally will be treated as foreign source passive income for foreign tax credit limitation purposes. Under the U.S.- Canada Tax Treaty, such dispositions generally will be subject to a Canadian withholding tax at a rate of 15%. Subject to certain limitations, you should generally be entitled to either credit your United States income tax liability with, or deduct in computing your United States taxable income, any Canadian income taxes withheld from these distributions. Tax Considerations That Apply To Non-U.S. Holders If you are not . an individual citizen or resident of the United States, . a corporation or partnership created in the United States or under the laws of the United States or of any state, or . a United States estate or trust, the following summary applies to you. Exchange Of Exchangeable Shares. Generally, you will not be subject to United States federal income tax when you exchange your exchangeable shares for shares of our common stock, unless your exchangeable shares were an asset of your United States trade or business. Distributions On The Exchangeable Shares. You should not be subject to United States tax on dividends that you receive on the exchangeable shares. Therefore, we and InfoSpace.com Canada Holdings do not intend to withhold any United States taxes from those dividends. The IRS, however, may assert that dividends paid to you on the exchangeable shares are subject to tax. As a result, you could be subject to tax at a rate of 30 percent. An applicable treaty in effect between the United States and your country of residence may reduce the rate. If you are a resident of Canada, a maximum rate of 15 percent applies to dividends paid to you. Distributions On Shares Of Common Stock. Dividends that you receive on the common stock generally will be subject to tax at a rate of 30 percent. An applicable income tax treaty may reduce that rate. If you are a resident of Canada, a maximum rate of 15 percent applies to dividends paid to you. Gain On Sale Or Exchange Of Common Stock. Generally, you will not be subject to tax when you sell or exchange your shares of common stock unless either . your common stock was an asset of your United States trade or business or, if a tax treaty applies, is attributable to your United States permanent establishment; or . you are an individual, you are present in the United States for 183 days or more, or you satisfy certain other conditions. If at any time we are a United States real property holding corporation, you may be subject to certain additional rules. These rules would require withholding of tax on the gross proceeds of your sale of shares of common stock. We believe that we are not a United States real property holding corporation. Although we consider it unlikely that we will become a United States real property holding corporation, we can provide no assurance as to this issue. Federal Estate Taxes. If you are an individual who is not a citizen or resident (as defined for United States federal estate tax purposes) of the United States at the time of death, shares of common stock that you own will be includable in your gross estate for United States federal estate tax purposes (unless an applicable estate tax treaty provides otherwise), and therefore may be subject to United States federal estate tax. 91 Backup Withholding, Information Reporting and Other Reporting Requirements. We must report annually to the Internal Revenue Service and to each of you the amount of dividends paid to, and the tax withheld with respect to, each of you. These reporting requirements apply regardless of whether withholding was reduced or eliminated by an applicable tax treaty. Copies of this information also may be made available under the provisions of a specific treaty or agreement with the tax authorities of your country. Under currently effective United States Treasury regulations, United States backup withholding tax (which generally is imposed at the rate of 31% on certain payments to persons that fail to furnish the information required under the United States information reporting requirements) and information reporting requirements (other than those discussed above) generally will not apply to dividends paid on common stock if you have an address outside the United States. Backup withholding and information reporting generally will apply to dividends paid on shares of common stock if you have an address in the United States, or if you fail to establish an exemption or to provide certain other information to us. Under United States Treasury regulations that are effective for payments made after December 31, 2000, if you fail to certify your status in accordance with these regulations, you may be subject to backup withholding on payments of dividends. The payment of proceeds from the disposition of common stock to or through a United States office of a broker will be subject to information reporting and backup withholding unless you, under penalties of perjury, certify, among other things, your status as a non-U.S. Holder or otherwise establish an exemption. In general, backup withholding and information reporting will not apply to the payment of the proceeds of a sale of common stock by or through a foreign office of a broker. If, however, such broker is, for United States federal tax purposes, a United States person, a "controlled foreign corporation" for U.S. federal income tax purposes or a foreign person 50% or more of whose gross income from certain periods is effectively connected with a United States trade or business or has as partners one or more United States persons that, in the aggregate, hold more than 50% of the income or capital interests in the partnership, such payments will be subject to information reporting, but not backup withholding, unless such broker has documentary evidence in its records that you are a non-U.S. holder and certain other conditions are met or you otherwise establish an exemption. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to you will be refunded or credited against your United States federal income tax liability, if any, provided that the required information is furnished to the Internal Revenue Service. 92 EXPERTS The consolidated financial statements of InfoSpace.com, Inc. as of December 31, 1997 and December 31, 1998, and for the period from March 1, 1996 (date of inception) through December 31, 1996, the years ended December 31, 1997 and December 31, 1998, included in this Prospectus have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report appearing elsewhere herein, and have been so included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. The financial statements of INEX Corporation as of December 31, 1997 and December 31, 1998, and for each of the years ended December 31, 1996, 1997 and 1998, included in this Prospectus have been audited by PricewaterhouseCoopers LLP, independent auditors, as stated in their report appearing elsewhere herein, and have been so included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. ADDITIONAL INFORMATION We have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-1, of which this prospectus is a part, under the Securities Act with respect to the shares of common stock offered hereby. This prospectus omits certain information contained in the registration statement, and reference is made to the registration statement and the exhibits thereto for further information with respect to InfoSpace.com and the common stock offered hereby. Statements contained herein concerning the provisions of any documents are not necessarily complete, and in each instance reference is made to the copy of such document filed as an exhibit to the registration statement. Each such statement is qualified in its entirety by such reference. We are also subject to the informational requirements of the Securities Exchange Act and, in accordance therewith, file reports, proxy statements and other information with the Commission. The registration statement, including exhibits filed therewith, and the reports, proxy statements and other information that we file may be inspected without charge at the public reference facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional offices of the Commission located at 7 World Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials may be obtained from the Public Reference Section of the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The Commission maintains a Web site (http://www.sec.gov) that contains reports, proxy and information statements and other information regarding registrants, such as InfoSpace.com, that file electronically with the Commission. Statements contained in this prospectus as to the contents of any contract, agreement or other document referred to are not necessarily complete, and in each instance reference is made to the copy of such contract, agreement or other document filed as an exhibit to the registration statement, each such statement being qualified in all respects by such reference. 93 INDEX TO FINANCIAL STATEMENTS
Page ---- Unaudited Pro Forma Combined Consolidated Financial Statements: INEX Corporation Acquisition.............................................. F-2 Pro Forma Combined Consolidated Balance Sheet as of June 30, 1999......... F-3 Pro Forma Combined Consolidated Statement of Operations for the Six Months Ended June 30, 1999............................................................ F-4 Pro Forma Combined Consolidated Statement of Operations for the Six Months Ended June 30, 1998............................................................ F-5 Pro Forma Combined Consolidated Statement of Operations for the Year Ended December 31, 1998........................................................ F-6 Pro Forma Combined Consolidated Statement of Operations for the Year Ended December 31, 1997........................................................ F-7 Pro Forma Combined Consolidated Statement of Operations for the Year Ended December 31, 1996........................................................ F-8 Notes to Unaudited Pro Forma Combined Consolidated Financial Statements... F-9 InfoSpace.com, Inc.: Independent Auditors' Report.............................................. F-10 Consolidated Balance Sheets............................................... F-11 Consolidated Statements of Operations..................................... F-12 Consolidated Statements of Changes in Stockholders' Equity................ F-13 Consolidated Statements of Cash Flows..................................... F-14 Notes to Consolidated Financial Statements................................ F-15 INEX Corporation: Report of Independent Accountants......................................... F-35 Balance Sheets............................................................ F-36 Statements of Operations.................................................. F-37 Statements of Changes in Stockholders' Equity............................. F-38 Statements of Comprehensive Loss.......................................... F-39 Statements of Cash Flows.................................................. F-40 Notes to Financial Statements............................................. F-41
F-1 INEX Corporation Acquisition On August 13, 1999, the Company signed a definitive agreement to acquire Toronto-based INEX Corporation. Under the terms of the acquisition, which will be accounted for as a pooling of interests, the Company will exchange approximately 900,000 shares of common stock for all of INEX's outstanding shares, warrants and options. The acquisition is expected to be completed in September, and is subject to customary conditions, including the receipt of regulatory approval and INEX shareholder approval. F-2 INFOSPACE.COM, INC. AND INEX CORPORATION PRO FORMA COMBINED CONSOLIDATED BALANCE SHEET As of June 30, 1999
INEX Pro Forma Pro Forma InfoSpace.com Corporation Adjustments Combined ------------- ----------- ------------------ ------------ ASSETS Current assets: Cash and cash equivalents.......... $108,686,020 $ 927,202 $109,613,222 Short-term investments.......... 58,940,865 -- 58,940,865 Accounts receivable, net of allowance..... 4,383,098 84,888 4,467,986 Notes receivable...... 6,000,000 -- 6,000,000 Prepaid expenses and other assets......... 4,591,830 15,914 4,607,744 ------------ ---------- ------------ 182,601,813 1,028,004 183,629,817 Long-term investments... 70,890,183 -- 70,890,183 Property and equipment, net.................... 1,987,114 132,496 2,119,610 Intangible assets, net.. 19,094,433 -- 19,094,433 Other investments....... 6,194,331 -- 6,194,331 Other................... 374,937 -- 374,937 ------------ ---------- ------------ Total assets............ $281,142,811 $1,160,500 $282,303,311 ============ ========== ============ LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable...... $ 606,337 $ 162,535 $ 768,872 Accrued expenses...... 4,139,413 -- 4,139,413 Deferred revenues..... 1,964,932 257 1,965,189 ------------ ---------- ------------ Total current liabilities........ 6,710,682 162,792 6,873,474 Convertible debentures.. -- 169,837 169,837 Shareholders' equity: Common stock, par value $.0001......... 4,736 -- 90(Note 4) 4,826 Common stock.......... -- 2,413,846 (2,413,846)(Note 4) 0 Class A preference shares............... -- 859,056 (859,056)(Note 4) 0 Special warrants, Series A............. -- 659,698 (659,698)(Note 4) 0 Special warrants, Series B............. -- 1,727,603 (1,727,603)(Note 4) 0 Additional paid-in capital.............. 292,949,083 957,480 5,660,113(Note 4) 299,566,676 Accumulated deficit... (15,587,566) (5,742,886) (21,330,452) Cumulative translation adjustment........... -- 3,989 3,989 Deferred expense-- warrants............. (2,719,011) -- (2,719,011) Unearned compensation--stock options.............. (215,113) (50,915) (266,028) ------------ ---------- ------------ Total stockholders' equity............. 274,432,129 827,871 -- 275,260,000 ------------ ---------- ------------ Total liabilities and stockholders' equity... $281,142,811 $1,160,500 -- $282,303,311 ============ ========== ============
See accompanying notes to pro forma combined consolidated financial statements. F-3 INFOSPACE.COM, INC. AND INEX CORPORATION PRO FORMA COMBINED CONSOLIDATED STATEMENT OF OPERATIONS For the Six Months Ended June 30, 1999 (Unaudited)
INEX Pro Forma Pro Forma InfoSpace.com Corporation Adjustments Combined ------------- ----------- ----------- ----------- Revenues................ $11,874,788 $ 266,111 $12,140,899 Cost of revenues........ 1,960,140 25,555 1,985,695 ----------- ----------- ----------- Gross profit.......... 9,914,648 240,556 10,155,204 Operating expenses: Product development... 537,484 518,793 1,056,277 Sales and marketing... 10,196,949 743,391 10,940,340 General and administrative....... 3,387,287 598,093 3,985,380 Amortization of intangibles.......... 603,940 -- 603,940 Acquisition and related charges...... 4,912,500 -- 4,912,500 Other--non-recurring charges.............. 209,500 -- 209,500 ----------- ----------- ----------- Total operating expenses........... 19,847,660 1,860,277 21,707,937 ----------- ----------- ----------- Loss from operations.... (9,933,012) (1,619,721) (11,552,733) Other income (expense), net.................... 4,287,577 7,296 4,294,873 Equity in loss from joint venture.......... (76,459) -- (76,459) ----------- ----------- ----------- Net loss................ $(5,721,894) $(1,612,425) $(7,334,319) =========== =========== =========== Basic and diluted net loss per share......... $ (0.13) $ (0.16) =========== =========== Shares used in computing basic and diluted net loss per share calculations........... 44,680,837 585,810(Note 4) 45,580,837 =========== ======= ===========
See accompanying notes to pro forma combined consolidated financial statements. F-4 INFOSPACE.COM, INC. AND INEX CORPORATION PRO FORMA COMBINED CONSOLIDATED STATEMENT OF OPERATIONS For the Six Months Ended June 30, 1998 (Unaudited)
INEX Pro Forma Pro Forma InfoSpace.com Corporation Adjustments Combined ------------- ----------- ----------- ----------- Revenues................ $ 2,855,010 $ 53,790 $ 2,908,800 Cost of revenues........ 498,653 9,677 508,330 ----------- ----------- ----------- Gross profit.......... 2,356,357 44,113 2,400,470 Operating expenses: Product development... 148,509 257,872 406,381 Sales and marketing... 951,671 312,229 1,263,900 General and administrative....... 833,543 873,872 1,707,415 Amortization of intangibles.......... 120,805 -- 120,805 Acquisition and related charges...... 2,800,000 -- 2,800,000 Other--non-recurring charges.............. 240,000 -- 240,000 ----------- ----------- ----------- Total operating expenses........... 5,094,528 1,443,973 6,538,501 ----------- ----------- ----------- Loss from operations.... (2,738,171) (1,399,860) (4,138,031) Other income (expense), net.................... 43,206 14,302 57,508 Equity in loss from joint venture.......... -- -- -- ----------- ----------- ----------- Net loss................ $(2,694,965) $(1,385,558) $(4,080,523) =========== =========== =========== Basic and diluted net loss per share......... $ (0.12) $ (0.17) =========== =========== Shares used in computing basic and diluted net loss per share calculations........... 23,144,812 376,514(Note 4) 24,044,812 =========== ======= ===========
See accompanying notes to pro forma combined consolidated financial statements. F-5 INFOSPACE.COM, INC. AND INEX CORPORATION PRO FORMA COMBINED CONSOLIDATED STATEMENT OF OPERATIONS For the Year Ended December 31, 1998 (Unaudited)
INEX Pro Forma Pro Forma InfoSpace.com Corporation Adjustments Combined ------------- ----------- ----------- ------------ Revenues................ $ 9,414,450 $ 208,910 $ 9,623,360 Cost of revenues........ 1,605,006 29,720 1,634,726 ----------- ----------- ------------ Gross profit.......... 7,809,444 179,190 7,988,634 Operating expenses: Product development... 599,673 644,965 1,244,638 Sales and marketing... 5,541,261 744,636 6,285,897 General and administrative....... 3,001,434 1,573,980 4,575,414 Amortization of intangibles.......... 709,923 -- 709,923 Acquisition and related charges...... 2,800,000 -- 2,800,000 Other--non-recurring charges.............. 4,500,000 -- 4,500,000 ----------- ----------- ------------ Total operating expenses........... 17,152,291 2,963,581 20,115,872 ----------- ----------- ------------ Loss from operations.... (9,342,847) (2,784,391) (12,127,238) Other income (expense), net.................... 411,365 22,146 433,511 Equity in loss from joint venture.......... (124,976) -- (124,976) ----------- ----------- ------------ Net loss................ $(9,056,458) $(2,762,245) $(11,818,703) =========== =========== ============ Basic and diluted net loss per share......... $ (0.33) $ (0.42) =========== ============ Shares used in computing basic and diluted net loss per share calculations........... 27,120,536 422,315(Note 4) 28,020,536 =========== ======= ============
See accompanying notes to pro forma combined consolidated financial statements. F-6 INFOSPACE.COM, INC. AND INEX CORPORATION PRO FORMA COMBINED CONSOLIDATED STATEMENT OF OPERATIONS For the Year Ended December 31, 1997 (Unaudited)
INEX Pro Forma Pro Forma InfoSpace.com Corporation Adjustments Combined ------------- ----------- ----------- ----------- Revenues................ $1,685,096 $ 57,446 $ 1,742,542 Cost of revenues........ 399,877 18,932 418,809 ---------- ----------- ----------- Gross profit.......... 1,285,219 38,514 1,323,733 Operating expenses: Product development... 212,677 170,459 383,136 Sales and marketing... 841,074 635,502 1,476,576 General and administrative....... 480,398 463,740 944,138 Amortization of intangibles.......... 64,056 -- 64,056 Acquisition and related charges...... -- -- -- Other--non-recurring charges.............. 137,000 -- 137,000 ---------- ----------- ----------- Total operating expenses........... 1,735,205 1,269,701 3,004,906 ---------- ----------- ----------- Loss from operations.... (449,986) (1,231,187) (1,681,173) Other income (expense), net.................... 21,296 (1,038) 20,258 Equity in loss from joint venture.......... -- -- -- ---------- ----------- ----------- Net loss................ $ (428,690) $(1,232,225) $(1,660,915) ========== =========== =========== Basic and diluted net loss per share......... $ (0.02) $ (0.07) ========== =========== Shares used in computing basic and diluted net loss per share calculations........... 21,996,314 279,131(Note 4) 22,896,314 ========== ======= ===========
See accompanying notes to pro forma combined consolidated financial statements. F-7 INFOSPACE.COM, INC. AND INEX CORPORATION PRO FORMA COMBINED CONSOLIDATED STATEMENT OF OPERATIONS For the Year Ended December 31, 1996 (Unaudited)
INEX Pro Forma Pro Forma InfoSpace.com Corporation Adjustments Combined ------------- ----------- ----------- ---------- Revenues................ $ 199,372 $ -- $ 199,372 Cost of revenues........ 96,641 -- 96,641 ---------- --------- ---------- Gross profit.......... 102,731 -- 102,731 Operating expenses: Product development... 109,671 39,212 148,883 Sales and marketing... 230,774 26,154 256,928 General and administrative....... 163,896 70,271 234,167 Amortization of intangibles.......... -- -- -- Acquisition and related charges...... -- -- -- Other--non-recurring charges.............. -- -- -- ---------- --------- ---------- Total operating expenses........... 504,341 135,637 639,978 ---------- --------- ---------- Loss from operations.... (401,610) (135,637) (537,247) Other income (expense), net.................... 21,086 -- 21,086 Equity in loss from joint venture.......... -- -- -- ---------- --------- ---------- Net loss................ $ (380,524) $(135,637) $ (516,161) ========== ========= ========== Basic and diluted net loss per share......... $ (0.02) $ (0.03) ========== ========== Shares used in computing basic and diluted net loss per share calculations........... 18,560,326 204,429(Note 4) 19,460,326 ========== ======= ==========
See accompanying notes to pro forma combined consolidated financial statements. F-8 INFOSPACE.COM, INC. AND INEX CORPORATION NOTES TO UNAUDITED PRO FORMA COMBINED CONSOLIDATED FINANCIAL STATEMENTS Note 1: The Periods Combined The InfoSpace.com, Inc. consolidated statements of operations for the years ended December 31, 1996, 1997 and 1998 and for the six months ended June 30, 1998 and 1999 have been combined with the INEX Corporation statements of operations for the same periods as if the merger had occurred as of the beginning of the period. Note 2: Pro Forma Basis of Presentation The pro forma adjustments made in connection with the development of the pro forma information have been made solely for purposes of developing such pro forma information as necessary to comply with the disclosure requirements of the Securities Exchange Commission. The Unaudited Pro Forma Combined Consolidated Financial Statements do not purport to be indicative of the combined financial position or results of operations of future periods or indicative of the results of operations of future periods or indicative of the results that actually would have been realized had the entities been a single entity during these periods. The Unaudited Pro Forma Combined Statement of Operations for the years ended December 31, 1997 and 1998 and for the six months ended June 30, 1998 and 1999 reflect the issuance of 900,000 shares of InfoSpace.com, Inc. Common Stock in exchange for all of the outstanding stock, warrants, and options of INEX Corporation. The pro forma adjustments reflect the additional shares that would be used in computing basic and diluted earnings per share as if the Merger had occurred at the beginning of the period. Note 3: Pro Forma Earnings Per Share The Unaudited Pro Forma Combined Consolidated Statements of Operations for InfoSpace.com, Inc. have been prepared as if the merger was completed at the beginning of the periods presented. The pro forma basic net loss per share is based on the combined weighted average number of shares of InfoSpace.com, Inc. Common Stock outstanding during the period and the number of InfoSpace.com, Inc. Common Stock to be issued in exchange as discussed in Note 2. The Pro Forma diluted loss per share is computed using the weighted average number of InfoSpace.com, Inc. Common Stock and dilutive common equivalent shares outstanding during the period and the number of shares of InfoSpace.com, Inc. Common Stock to be issued in exchange. Common equivalent shares consist of the incremental common shares issuable upon conversion of the exercise of stock options and warrants using the treasury stock method. Common equivalent shares are excluded from the computation if their effect is antidilutive. The combined Company had a pro forma net loss for all periods presented herein; therefore, none of the options and warrants outstanding during each of the periods presented were included in the computation of pro forma dilutive earnings per share as they were antidilutive. Note 4: Pro Forma Adjustments The objective of the pro forma information is to show what the significant effects on the historical financial information might have been had the Companies been combined for the periods presented. Pro Forma Adjustments represent the issuance of shares of InfoSpace.com, Inc. Common Stock (1) in exchange for the exchangeable shares of InfoSpace Canada Holdings Inc. issued in respect of INEX common shares upon the closing of the combination, (2) issued directly to INEX Corporation shareholders upon the closing and (3) issuable upon the exercise or conversion of warrants, stock options and convertible debentures. The pro forma adjustments reflect the additional shares that would be used in computing basic and diluted earnings per share as if the Merger had occurred at the beginning of each period. F-9 INDEPENDENT AUDITORS' REPORT To the Board of Directors and Stockholders of InfoSpace.com, Inc. Redmond, Washington We have audited the accompanying consolidated balance sheets of InfoSpace.com, Inc. and subsidiary (the Company) as of December 31, 1997 and 1998, and the related consolidated statements of operations, changes in stockholders' equity, and cash flows for the period from March 1, 1996 (inception) to December 31, 1996, and the years ended December 31, 1997 and 1998. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of InfoSpace.com, Inc. and subsidiary as of December 31, 1997 and 1998, and results of their operations and their cash flows for the period from March 1, 1996 (inception) to December 31, 1996, and the years ended December 31, 1997 and 1998, in conformity with generally accepted accounting principles. DELOITTE & TOUCHE LLP Seattle, Washington February 24, 1999 (August 13, 1999 as to Note 14) F-10 INFOSPACE.COM, INC. CONSOLIDATED BALANCE SHEETS
December 31, December 31, June 30, 1997 1998 1999 ------------ ------------ ------------ (unaudited) ASSETS Current assets: Cash and cash equivalents........... $ 324,415 $ 14,590,634 $108,686,020 Short-term investments, held-to- maturity........................... -- 72,159,522 58,940,865 Accounts receivable, net of allowance for doubtful accounts of $47,000, $597,000 and $562,000 (unaudited)........................ 467,187 3,409,672 4,383,098 Notes receivable.................... -- -- 6,000,000 Prepaid expenses and other current assets............................. 121,573 3,630,476 4,591,830 ---------- ------------ ------------ Total current assets.............. 913,175 93,790,304 182,601,813 Long-term investments, held-to- maturity............................. -- 1,252,438 70,890,183 Property and equipment, net........... 216,439 1,161,936 1,987,114 Intangible assets, net................ 268,420 5,276,880 19,094,433 Other investments..................... -- 370,790 6,194,331 Other................................. -- 405,906 374,937 ---------- ------------ ------------ Total assets...................... $1,398,034 $102,258,254 $281,142,811 ========== ============ ============ LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable.................... $ 85,814 $ 1,586,118 606,337 Accrued expenses.................... 204,311 5,032,450 4,139,413 Note payable........................ 30,000 -- -- Deferred revenues................... 50,000 1,391,849 1,964,932 ---------- ------------ ------------ Total current liabilities......... 370,125 8,010,417 6,710,682 Commitments and contingencies (Note 6) Stockholders' equity: Preferred stock, par value $.0001-- Authorized, 15,000,000 shares: issued and outstanding, no shares.. -- -- -- Common stock, par value $.0001-- Authorized, 30,000,000, 50,000,000 and 200,000,000 (unaudited) shares; issued and outstanding, 22,060,506, 42,283,604 and 47,359,177 (unaudited) shares................. 2,206 4,228 4,736 Additional paid-in capital.......... 1,997,152 107,546,932 292,949,083 Accumulated deficit................. (809,214) (9,865,672) (15,587,566) Deferred expense--warrants.......... -- (3,126,862) (2,719,011) Unearned compensation--stock options............................ (162,235) (310,789) (215,113) ---------- ------------ ------------ Total stockholders' equity........ 1,027,909 94,247,837 274,432,129 ---------- ------------ ------------ Total liabilities and stockholders' equity............................... $1,398,034 $102,258,254 $281,142,811 ========== ============ ============
See accompanying notes to consolidated financial statements. F-11 INFOSPACE.COM, INC. CONSOLIDATED STATEMENTS OF OPERATIONS
March 1 to Years Ended Six Months Ended December 31, December 31, June 30, ------------ ----------------------- ------------------------ 1996 1997 1998 1998 1999 ------------ ---------- ----------- ----------- ----------- (unaudited) (unaudited) Revenues................ $ 199,372 $1,685,096 $ 9,414,450 $ 2,855,010 $11,874,788 Cost of revenues........ 96,641 399,877 1,605,006 498,653 1,960,140 ---------- ---------- ----------- ----------- ----------- Gross profit.......... 102,731 1,285,219 7,809,444 2,356,357 9,914,648 Operating expenses: Product development... 109,671 212,677 599,673 148,509 537,484 Sales and marketing... 230,774 841,074 5,541,261 951,671 10,196,949 General and administrative....... 163,896 480,398 3,001,434 833,543 3,387,287 Amortization of intangibles.......... -- 64,056 709,923 120,805 603,940 Acquisition and related charges...... -- -- 2,800,000 2,800,000 4,912,500 Other--non-recurring charges.............. -- 137,000 4,500,000 240,000 209,500 ---------- ---------- ----------- ----------- ----------- Total operating expenses........... 504,341 1,735,205 17,152,291 5,094,528 19,847,660 ---------- ---------- ----------- ----------- ----------- Loss from operations......... (401,610) (449,986) (9,342,847) (2,738,171) (9,933,012) Other income, net....... 21,086 21,296 411,365 43,206 4,287,577 Equity in loss from joint venture.......... -- -- (124,976) -- (76,459) ---------- ---------- ----------- ----------- ----------- Net loss................ $ (380,524) $ (428,690) $(9,056,458) $(2,694,965) $(5,721,894) ========== ========== =========== =========== =========== Basic and diluted net loss per share......... $ (0.02) $ (0.02) $ (0.33) $ (0.12) $ (0.13) ========== ========== =========== =========== =========== Shares used in computing basic net loss per share.................. 18,560,326 21,882,980 27,120,536 23,144,812 44,680,837 ========== ========== =========== =========== =========== Shares used in computing diluted net loss per share.................. 18,560,326 21,996,314 27,120,536 23,144,812 44,680,837 ========== ========== =========== =========== ===========
See accompanying notes to consolidated financial statements. F-12 INFOSPACE.COM, INC. CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
Common stock ----------------- Paid-in Accumulated Deferred Unearned Shares Amount capital deficit expense Compensation Total ---------- ------ ------------ ------------ ----------- ------------ ------------ Balance, March 1, 1996 (inception)............ -- $ -- $ -- $ -- $ -- $ -- $ -- Common stock issued..... 21,890,506 2,190 1,369,010 -- -- -- 1,371,200 Unearned compensation-- stock options.......... -- -- 101,250 -- -- (101,250) -- Compensation expense-- stock options.......... -- -- -- -- -- 29,813 29,813 Net loss................ -- -- -- (380,524) -- -- (380,524) ---------- ------ ------------ ------------ ----------- --------- ------------ Balance, December 31, 1996................... 21,890,506 2,190 1,470,260 (380,524) -- (71,437) 1,020,489 Common stock issued for acquisition............ 170,000 16 292,172 -- -- -- 292,188 Unearned compensation-- stock options.......... -- -- 234,720 -- -- (234,720) -- Compensation expense-- stock options.......... -- -- -- -- -- 143,922 143,922 Net loss................ -- -- -- (428,690) -- -- (428,690) ---------- ------ ------------ ------------ ----------- --------- ------------ Balance, December 31, 1997................... 22,060,506 2,206 1,997,152 (809,214) -- (162,235) 1,027,909 Common stock and warrants issued for acquisition............ 2,999,976 300 7,902,009 -- -- -- 7,902,309 Common stock issued to employees.............. 446,502 44 1,674,350 -- -- -- 1,674,394 Common stock issued in initial public offering............... 11,500,000 1,150 77,829,753 -- -- -- 77,830,903 Other common stock issued to investors.... 4,724,790 472 13,438,086 -- -- -- 13,438,558 Warrants issued......... -- -- 40,161 -- -- -- 40,161 Exercise of stock options................ 551,830 56 1,016,154 -- -- -- 1,016,210 Deferred expense-- warrants............... -- -- 3,262,813 -- (3,262,813) -- -- Warrants expense........ -- -- -- -- 135,951 -- 135,951 Unearned compensation-- stock options.......... -- -- 386,454 -- -- (386,454) -- Compensation expense-- stock options.......... -- -- -- -- -- 237,900 237,900 Net loss................ -- -- -- (9,056,458) -- -- (9,056,458) ---------- ------ ------------ ------------ ----------- --------- ------------ Balance, December 31, 1998................... 42,283,604 4,228 107,546,932 (9,865,672) (3,126,862) (310,789) 94,247,837 Common stock issued in follow-on public offering (unaudited)... 4,340,000 434 185,104,627 -- -- -- 185,105,061 Initial public offering costs (unaudited)...... -- -- (55,464) -- (55,464) Exercise of stock options (unaudited).... 303,119 31 353,031 -- -- -- 353,062 Exercise of stock warrants (unaudited)... 432,454 43 (43) -- -- -- -- Warrants expense (unaudited)............ -- -- -- -- 407,851 -- 407,851 Unearned compensation-- stock options (unaudited)............ -- -- -- -- -- 95,676 95,676 Net loss (unaudited).... -- -- -- (5,721,894) -- -- (5,721,894) ---------- ------ ------------ ------------ ----------- --------- ------------ Balance, June 30, 1999 (unaudited)............ 47,359,177 $4,736 $292,949,083 $(15,587,566) $(2,719,011) $(215,113) $274,432,129 ========== ====== ============ ============ =========== ========= ============
See accompanying notes to consolidated financial statements. F-13 INFOSPACE.COM, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS
March 1 to Years Ended December Six Months Ended December 31, 31, June 30, ------------ ---------------------- ------------------------- 1996 1997 1998 1998 1999 ------------ --------- ----------- ----------- ------------ (unaudited) (unaudited) Operating Activities: Net loss............... $(380,524) $(428,690) $(9,056,458) $(2,694,965) $ (5,721,894) Adjustments to reconcile net loss to net cash provided (used) by operating activities: Trademark amortization.......... -- -- 1,500,000 -- 1,500,000 Depreciation and other amortization.......... 23,513 224,270 991,749 207,307 924,979 Compensation expense-- stock options......... 29,813 143,922 237,900 98,799 95,676 Warrants expense....... -- -- 135,951 -- 407,851 Write-off of in process research and development........... -- -- 2,800,000 2,800,000 3,900,000 Noncash issuance of common stock.......... -- -- 70,000 -- -- Noncash services exchanged............. -- (60,000) (7,290) 25,873 -- Bad debt expense....... -- 47,000 687,602 255,813 245,783 Equity in loss from joint venture......... -- -- 124,976 -- 76,459 Loss on disposal of fixed assets.......... -- 3,743 (3,771) -- 1,904 Gain on sale of intangible............ -- -- -- -- (7,830) Cash provided (used) by changes in operating assets and liabilities: Accounts receivable... (126,574) (387,613) (3,630,087) (687,792) (1,219,209) Prepaid expense and other current assets............... (59,334) (33,152) (2,072,308) 3,140 (2,461,354) Other long-term assets............... -- -- (337,500) -- 30,969 Other intangibles..... -- -- (66,865) (30,913) -- Accounts payable...... 39,553 46,261 1,500,305 40,601 (979,781) Accrued expenses...... 4,663 199,648 4,805,428 412,271 (893,037) Deferred revenue...... 7,239 42,761 1,341,849 166,387 173,083 --------- --------- ----------- ----------- ------------ Net cash provided (used) by operating activities............ (461,651) (201,850) (978,519) 596,521 (3,926,401) Investing Activities: Business acquisitions, net of cash acquired.. -- (14,000) (311,951) (311,951) (18,083,054) Purchase of trademark(s).......... -- -- (3,290,000) -- -- Investment in joint venture............... -- -- (495,767) -- -- Issuance of note receivable............ -- -- -- -- (6,000,000) Other investments...... -- -- -- -- (5,500,000) Purchase of domain name.................. -- -- -- -- (100,000) Capitalized internally developed software.... -- -- -- -- (142,712) Sale of domain name.... -- -- -- -- 10,000 Purchase of fixed assets................ (219,375) (120,822) (1,150,807) (73,009) (1,146,018) Proceeds from sale of fixed assets.......... -- -- 4,997 -- -- Short-term investments (purchase) sale....... -- -- (72,159,522) -- 13,218,658 Long-term investments purchase.............. -- -- (1,252,438) -- (69,637,746) Other.................. -- (29,087) -- -- -- --------- --------- ----------- ----------- ------------ Net cash used by investing activities.. (219,375) (163,909) (78,655,488) (384,960) (87,380,872) Financing Activities: Proceeds from follow-on offering, net of expenses.............. -- -- -- -- 185,105,061 Proceeds from issuance of common stock to employees............. -- -- 1,674,394 -- -- Payments for shareholders for fractional shares..... -- -- (28) -- -- Proceeds from sale of warrants.............. -- -- 40,161 -- -- Proceeds from initial public offering, net of expenses........... -- -- 77,830,903 -- (55,464) Proceeds from issuance of other common stock to investors.......... 1,371,200 -- 13,338,586 5,238,748 -- Proceeds from exercise of stock options...... -- -- 1,016,210 -- 353,062 --------- --------- ----------- ----------- ------------ Net cash provided by financing activities.. 1,371,200 -- 93,900,226 5,238,748 185,402,659 --------- --------- ----------- ----------- ------------ Net Increase (Decrease) in Cash and Cash Equivalents............ 690,174 (365,759) 14,266,219 5,450,309 94,095,386 Cash and Cash Equivalents: Beginning of period.... -- 690,174 324,415 324,415 14,590,634 --------- --------- ----------- ----------- ------------ End of period.......... $ 690,174 $ 324,415 $14,590,634 $ 5,774,724 $108,686,020 ========= ========= =========== =========== ============ Supplemental Disclosure of Noncash Financing and Investing Activities: Acquisition of membership interest of Yellow Pages on the Internet, LLC (YPI) through the Issuance of common stock and assumption of $90,000 payable............... $ -- $ 382,188 $ -- $ -- $ -- Acquisition of common stock of Outpost Network, Inc. through the issuance of common Stock and warrants and assumption of liabilities of $191,000.............. -- -- 7,932,000 -- -- Stock issued for legal and consulting services.............. -- -- 50,000 -- -- Stock issued for settlement of legal claim................. -- -- 50,000 -- -- Settlement of note payable for noncash services.............. -- -- 30,000 30,000 --
See accompanying notes to consolidated financial statements. F-14 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Period from March 1, 1996 (inception) to December 31, 1996, Years Ended December 31, 1997 and 1998 and Six Months Ended June 30, 1998 and 1999 (unaudited) Note 1: Summary of Significant Accounting Policies Description of business: InfoSpace.com, Inc. (the Company or InfoSpace), previously known as InfoSpace, Inc., a Delaware corporation, was founded in March 1996. The Company is a leading Internet infrastructure company that provides private label solutions for content, community and commerce to Web sites and Internet appliances. The Company focuses on real-world content, such as yellow pages and white pages, maps, classified advertisements, real-time stock quotes, information on local businesses and events, weather forecasts and horoscopes. The Company completed an initial public offering in December 1998. The Company derives revenues primarily from national and local advertising, promotions, including content and commerce promotions, and, to a lesser extent, non-advertising based private label solutions. Principles of consolidation: The consolidated financial statements include the accounts of the Company, InfoSpace Canada.com and its wholly owned subsidiary Outpost Network, Inc. (Outpost). All significant intercompany accounts and transactions have been eliminated. Cash and cash equivalents: The Company considers all highly liquid debt instruments with an original maturity of 90 days or less to be cash equivalents. Cash and cash equivalents are carried at cost, which approximates market. Investments: The Company principally invests its available cash in high- quality corporate issuers, and in debt instruments of the U.S. Government and its agencies. At December 31, 1998, the short-term investments consist entirely of short-term debt instruments. All debt instruments with original maturities greater than three months from the balance sheet date are considered investments. Investments maturing after twelve months from the balance sheet date are considered long-term. The Company accounts for investments in accordance with SFAS No. 115, Accounting for Certain Investments in Debt and Equity Securities. The Company's short-term and long-term investments are classified as held-to-maturity as of the balance sheet date and are reported at amortized cost. Property and equipment: Property and equipment are stated at cost. Depreciation is computed under the straight-line method over the following estimated useful lives: Computer equipment and software................................. 3 years Office furniture and equipment.................................. 7 years Leasehold improvements.......................................... Lease term
Intangible assets: Goodwill, purchased technology and other intangibles are amortized on a straight-line basis over their estimated useful lives. All goodwill, purchased technology and internally developed software currently recorded are amortized over five years. The trademark is amortized over its remaining life of nine years and four months. Other intangibles, primarily consisting of purchased domain name licenses, are amortized over an estimated useful life of three years. Other investments: The Company invests in equity instruments of privately- held, information technology companies for business and strategic purposes. These investments are included in other long-term assets and are accounted for under the cost method. F-15 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Other Long-lived assets: Management periodically reevaluates long-lived assets, consisting primarily of purchased technology, goodwill, property and equipment, to determine whether there has been any impairment of the value of these assets and the appropriateness of their estimated remaining life. No impairment loss has been recognized through December 31, 1998. Revenue recognition: The Company's revenues are primarily derived from advertising agreements in which the Company receives a fixed fee or performance based fee. Local advertising: Guaranteed minimum payments are recognized ratably over the term of the agreements. Revenues earned above the guaranteed minimum payments are recognized ratably over the remaining term of the agreements. National advertising: Revenues from contracts based on the number of impressions displayed or click throughs provided are recognized as services are rendered. Promotions: Revenues from fixed fee content carriage and syndication agreements are recognized ratably over the related contract term. For content carriage fee contracts that are performance based with an established maximum, the Company recognizes revenues as the services are rendered, not to exceed the maximum amount over the fixed term. Commerce: Transaction fees are recognized in the period the transaction occurred and was reported to the Company by the content providers or online merchants. Also included in revenues are barter revenues generated from exchanging banners for banners, banners for content, or banners for print or other advertising. Barter revenues are recorded as advertising revenues at the lower of the estimated fair market value of goods and services received or impressions given, and are recognized when the Company's advertisements are run. For barter agreements, the Company records a receivable or liability at the end of a reporting period for the difference in the fair value of the services provided or received. Deferred revenues are primarily comprised of billings in excess of recognized revenues relating to advertising agreements and payments received pursuant to advertising agreements in advance of revenue recognition. The Company records a liability at month-end for any shortfalls of minimum impressions or click throughs that were not attained during the period of the agreement. Cost of revenues: Cost of revenues consists of expenses associated with the enhancement, maintenance and support of our content services, including direct personnel expenses, communication costs such as high-speed Internet access with dedicated DS-3 communication lines, server equipment depreciation, and license fees related to third-party content. Fees paid for content licenses are capitalized and amortized under the straight-line method over the license period. Product development: Product development expenses consist principally of personnel costs for research, design and development of the proprietary technology used to aggregate, integrate and distribute the Company's content, community and commerce services. Advertising costs: Design and production costs for print advertising are recorded as expense the first time an advertisement appears. Print advertising costs are expensed when the print advertising appears. Advertising costs related to electronic impressions are recorded as expense as impressions are provided. Advertising expense totaled $8,908, $217,798, and $1,261,338, for the years ended December 31, 1996, 1997, and 1998, respectively. Advertising expense totaled $415,920 and $1,689,728 for the six months ended June 30, 1998 and 1999 (unaudited), respectively. F-16 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Unearned compensation: Unearned compensation represents the unamortized difference between the option exercise price and the deemed fair market value of the Company's common stock for shares subject to grant at the grant date, for options issued under the Company's stock incentive plan (Note 4). The amortization of deferred compensation is charged to operations and is amortized over the vesting period of the options. Deferred expense-warrants: Deferred expense-warrants represents the fair value of the warrants that were issued and will be expensed ratably over the four year vesting period. The amortization of deferred warrant expense is charged to sales and marketing expense and is amortized over the term of the contractual agreement with America Online, Inc. (see Notes 4 and 6). Concentration of credit risk: Financial instruments that potentially subject the Company to concentrations of credit risk consist primarily of cash equivalents, short-term investments, and trade receivables. The Company places its cash equivalents and investments with major financial institutions. The Company operates in one business segment and sells advertising to various companies across several industries. Accounts receivable are typically unsecured and are derived from revenues earned from customers primarily located in the United States operating in a wide variety of industries and geographic areas. The Company performs ongoing credit evaluations of its customers and maintains reserves for potential credit losses. For the periods ended December 31, 1997 and 1996, no one customer accounted for more than 10% of revenues. For the year ended December 31, 1998, one customer accounted for approximately 21% of revenues. For the six months ended June 30, 1999, one customer accounted for 27% (unaudited) of revenues. At December 31, 1997, one customer accounted for approximately 14% of gross accounts receivable. At December 31, 1998, one customer accounted for approximately 27% of gross accounts receivable. At June 30, 1999, one customer accounted for approximately 20% (unaudited) of gross accounts receivable. These instruments are generally unsecured and uninsured. Income taxes: The Company has adopted SFAS No. 109, Accounting for Income Taxes. Under SFAS No. 109, deferred tax assets, including net operating loss carryforwards, and liabilities are determined based on temporary differences between the book and tax basis of assets and liabilities. The Company believes sufficient uncertainty exists regarding the realizability of the deferred tax assets such that a full valuation allowance is required. Reclassifications: Management determined that distribution revenue share costs, previously classified as Cost of Revenues, were more appropriately classified as Sales and Marketing. Under these agreements, affiliates are paid a portion of certain advertising revenues generated from traffic on co-branded distribution pages. This reclassification has been made to the 1998 and prior financial statements to conform with the 1999 presentation. To reflect ongoing expenses from core operations, management determined that amortization of intangibles was more appropriately classified in one line item. This reclassification has been made to the 1998 and prior financial statements to conform with the 1999 presentation. Reverse stock split: A one-for-two reverse stock split of the Company's common stock was effected on August 25, 1998. All references in the financial statements to shares, share prices, per share amounts and stock plans have been adjusted retroactively for the one-for-two reverse stock split. Stock split: A two-for-one stock split of the Company's common stock was effected in May 1999. All references in the financial statements to shares, share prices, per share amounts and stock plans have been adjusted retroactively for the two-for-one stock split. F-17 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Use of estimates: The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual amounts may differ from estimates. Recent accounting pronouncements: In June 1997 the Financial Accounting Standards Board (FASB) issued SFAS No. 130, Reporting Comprehensive Income. SFAS No. 130 establishes the standards for reporting comprehensive income and its components in financial statements. Comprehensive income as defined includes all changes in equity (net assets) during a period from non-owner sources. Examples of items to be included in comprehensive income, which are excluded from net income, include foreign currency translation adjustments and unrealized gains/losses on available-for-sale securities. The disclosure prescribed by SFAS No. 130 must be made for fiscal years beginning after December 15, 1997. Reclassification of financial statements for earlier periods provided for comparative purposes is required upon adoption. The Company had no comprehensive income items to report for the period from March 1, 1996 (inception) to December 31, 1996, the years ended December 31, 1997 and 1998. In June 1998, the FASB issued SFAS No. 133, Accounting for Derivatives and Hedging Activities, which establishes accounting and reporting standards for derivative instruments, including certain derivative instruments embedded in other contracts (collectively referred to as derivatives), and for hedging activities. Because the Company has never used nor currently intends to use derivatives, management does not anticipate that the adoption of this new standard will have a significant effect on earnings or the financial position of the Company. Note 2: Balance Sheet Components The following balance sheet components are presented as of the dates noted below. Cash and Cash Equivalents:
December 31, December 31, June 30, 1997 1998 1999 ------------ ------------ ------------ (unaudited) Cash.................................. $324,415 $ 173,566 $ 1,032,271 Commercial paper...................... -- -- 86,426,697 Money market.......................... -- 14,417,068 19,277,052 Other................................. -- -- 1,950,000 -------- ----------- ------------ $324,415 $14,590,634 $108,686,020 ======== =========== ============
Short and Long-Term Investments at December 31, 1998:
Amortized Fair- Unrealized Unrealized Cost Value Gain Loss ----------- ----------- ---------- ---------- Commercial paper.............. $66,668,475 $66,681,481 $13,259 $(253) Municipal securities.......... 1,499,665 1,500,150 485 -- U.S. Government securities.... 5,243,820 5,243,433 -- (387) ----------- ----------- ------- ----- $73,411,960 $73,425,064 $13,744 $(640) =========== =========== ======= =====
F-18 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Maturity information is as follows:
Amortized Fair Cost Value ----------- ----------- Within one year..................................... $72,159,522 $72,173,013 1 year through 5 years.............................. 1,252,438 1,252,051 ----------- ----------- $73,411,960 $73,425,064 =========== ===========
Short and Long-Term Investments at June 30, 1999 (unaudited):
Amortized Market Unrealized Unrealized Cost Value Gain Loss ------------ ------------ ---------- ----------- Corporate notes and bonds................... $ 66,609,635 $ 65,525,101 $ 2,133 $(1,086,667) U.S. Government securities.............. 26,604,503 28,409,384 1,973,537 (168,656) Commercial paper......... 22,547,855 22,532,673 -- (15,182) Certificate of deposit... 14,069,055 13,985,472 373 (83,956) ------------ ------------ ---------- ----------- $129,831,048 $130,452,630 $1,976,043 $(1,354,461) ============ ============ ========== ===========
Maturity information is as follows:
Amortized Fair Cost Value ------------ ------------ Within one year................................... $ 58,940,865 $ 58,639,936 1 year through 5 years............................ 70,890,183 71,812,694 ------------ ------------ $129,831,048 $130,452,630 ============ ============
Prepaid expenses and other assets:
December 31, December 31, June 30, 1997 1998 1999 ------------ ------------ ----------- (unaudited) Prepaid carriage fees.................. $ -- $1,171,874 $2,265,204 Prepaid trademark license.............. -- 1,500,000 -- Interest receivable.................... -- 9,874 980,502 Other.................................. 121,573 948,728 1,346,124 -------- ---------- ---------- $121,573 $3,630,476 $4,591,830 ======== ========== ==========
Property and equipment:
December 31, December 31, June 30, 1997 1998 1999 ------------ ------------ ----------- (unaudited) Computer equipment.................... $207,817 $1,390,988 $2,206,079 Office equipment...................... 3,044 54,366 149,108 Office furniture...................... 8,514 77,789 141,917 Software.............................. -- -- 128,341 Leasehold improvements................ -- 17,632 55,600 -------- ---------- ---------- 219,375 1,540,775 2,681,045 Accumulated depreciation.............. (23,513) (378,839) (693,931) -------- ---------- ---------- $195,862 $1,161,936 $1,987,114 ======== ========== ==========
F-19 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Intangibles assets:
December 31, December 31, June 30, 1997 1998 1999 ------------ ------------ ----------- (unaudited) Goodwill.............................. $ 310,583 $4,860,671 $18,563,725 Core technology....................... -- 800,000 1,200,000 Trademark............................. -- 290,000 290,000 Other................................. -- 40,000 262,713 Domain name........................... -- 60,000 156,875 Advertising contracts................. 85,417 85,417 85,417 --------- ---------- ----------- 396,000 6,136,088 20,558,730 Accumulated amortization.............. (127,580) (859,208) (1,464,297) --------- ---------- ----------- $ 268,420 $5,276,880 $19,094,433 ========= ========== ===========
Accrued expenses:
December 31, December 31, June 30, 1997 1998 1999 ------------ ------------ ----------- (unaudited) Compensation and related.............. $ 33,777 $ 193,592 $1,552,596 Carriage fees and revenue share....... -- 93,067 1,626,215 Legal fees............................ 12,717 -- 321,450 Settlement costs...................... 137,000 4,500,000 209,500 Other................................. 20,817 245,791 429,652 --------- ---------- ---------- $ 204,311 $5,032,450 $4,139,413 ========= ========== ==========
Note 3: Notes Receivable (unaudited) On June 30, 1999, the Company loaned an unrelated third party $6.0 million. The short-term note is due March 31, 2000 and accrues interest at 12% per annum. The note is secured by all of the assets of the borrower. Note 4: Stockholders' Equity Authorized shares: At incorporation, the Company was authorized to issue 25,000,000 shares, consisting of 20,000,000 shares of common stock with a par value of $.0001 per share and 5,000,000 shares of preferred stock with a par value of $.0001 per share. The preferred stock may be issued in one or more series. On June 17, 1996, the Certificate of Incorporation was amended to increase the authorized number of shares of all classes of Company stock to 45,000,000 shares, consisting of 30,000,000 shares of common stock with a par value of $.0001 per share and 15,000,000 shares of preferred stock with par value of $.0001 per share. On May 1, 1998, the Certificate of Incorporation was amended to increase the authorized number of shares of all classes of Company stock to 55,000,000 shares, consisting of 40,000,000 shares of common stock with a par value of $.0001 per share and 15,000,000 shares of preferred stock with a par value of $.0001 per share. F-20 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) On August 25, 1998, the Board of Directors approved and the Company effected a one-for-two reverse stock split of the Company's common stock. All references in the financial statements to shares, share prices, per share amounts and stock plans have been adjusted retroactively for the one-for-two reverse stock split. Also, on August 25, 1998, the Company filed a Restated Certificate of Incorporation. The effect was to change the authorized number of all classes of Company stock to 65,000,000 shares, consisting of 50,000,000 shares of common stock with a par value of $.0001 per share and 15,000,000 shares of preferred stock with a par value of $.0001 per share after giving effect to the one-for- two reverse stock split. On April 6, 1999 Board of Directors approved a two-for-one stock split of the Company's common stock. The stock split was effective on May 5, 1999. All references in the financial statements to shares, share prices, per share amounts and stock plans have been adjusted retroactively for the two-for-one stock split. On May 24, 1999, the stockholders of the Company approved an amendment to the Company's Certificate of Incorporation to increase the authorized number of shares of the Company's common stock to 200,000,000 shares. (unaudited). Restated 1996 Flexible Stock Incentive Plan: On June 3, 1998, the Board of Directors approved the Restated 1996 Flexible Stock Incentive Plan (the Plan). The Plan provides employees (including officers and directors who are employees) of the Company an opportunity to purchase shares of stock pursuant to options which may qualify as incentive stock options under Section 422 of the Internal Revenue Code of 1986, as amended (the Code), and employees, officers, directors, independent contractors and consultants of the Company an opportunity to purchase shares of stock pursuant to options which are not described in Section 422 of the Code (nonqualified stock options). The Plan also provides for the sale or bonus of stock to eligible individuals in connection with the performance of service for the Company. Finally, the Plan authorizes the grant of stock appreciation rights, either separately or in tandem with stock options, which entitle holders to cash compensation measured by appreciation in the value of the stock. Not more than 6,000,000 shares of stock shall be available for the grant of options or the issuance of stock under the Plan. If an option is surrendered or for any other reason ceases to be exercisable in whole or in part, the shares which were subject to option but on which the option has not been exercised shall continue to be available under the Plan. The Plan is administered by the Board of Directors. Options granted under the Plan typically vest over four years, 25% one year from the date of grant and ratably thereafter on a monthly basis. Additional options have been granted to retain certain existing employees, which options vest monthly over four years. On June 3, 1998, the Board of Directors approved the Option Exchange Program and the Option Replacement Program, allowing employees of the Company to exchange their nonqualified stock options for incentive stock options. Nonqualified stock options to purchase a total of 725,106 shares were exchanged for incentive stock options to purchase the equivalent number of shares with an exercise price equal to the fair market value at the date of exchange. On May 24, 1999, the stockholders' of the Company approved an amendment to the Company's 1996 Flexible Stock Incentive Plan to increase the number of share reserved for issuance by 4,000,000. The stockholders' also approved an amendment to the Stock Incentive Plan to annually increase the number of shares reserved for issuance on the first day of the Company's fiscal year beginning in 2000 by the amount equal to the lesser of (A) 1,000,000 (B) three percent (3%) of the Company's outstanding shares at the end of the Company's preceding fiscal year, and (C) a lesser amount determined by the Board of Directors. The stockholders' also approved an amendment to the Stock Incentive Plan to limit the number of shares of Common Stock that may be granted to one individual pursuant to stock options in any fiscal year of the F-21 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Company to 2,000,000 (plus an additional 2,000,000 shares in connection with his or her initial employment with the Company, which grant shall not count against the limit). (unaudited). Included in the table below as outstanding at June 30, 1999, are options to purchase 30,625 (unaudited) shares that were issued outside of the Plan, 625 of which were exercisable as of June 30, 1999. Activity and price information regarding the options are summarized as follows:
Weighted average Options exercise price --------- -------------- Outstanding, March 1, 1996 (inception)................ -- $ -- Granted............................................. 2,063,462 0.07 --------- Outstanding, December 31, 1996........................ 2,063,462 0.07 Granted............................................. 702,500 1.54 --------- Outstanding, December 31, 1997........................ 2,765,962 0.44 Granted............................................. 3,967,204 5.15 Cancelled........................................... (725,106) 77 Exercised........................................... (551,830) 1.84 Forfeited........................................... (156,750) 2.15 --------- Outstanding, December 31, 1998........................ 5,299,480 3.73 Granted (unaudited)................................. 655,200 30.33 Cancelled (unaudited)............................... (27,000) 27.42 Exercised (unaudited)............................... (303,119) 1.21 --------- Outstanding, June 30, 1999 (unaudited)................ 5,624,561 -- ========= Options exercisable, December 31, 1998................ 1,509,466 0.66 ========= Options exercisable, June 30, 1999 (unaudited)........ 1,763,803 1.25 =========
Information regarding stock option grants during the period from March 1, 1996 to December 31, 1996, the years ended December 31, 1997 and 1998 and six months ended June 30, 1999 (unaudited) is summarized as follows:
Years Ended --------------------------------------------------------- March 1, 1996 to December 31, 1996 December 31, 1997 December 31, 1998 ----------------------------- --------------------------- ----------------------------- Weighted Weighted Weighted Average Weighted Average Weighted Average Weighted exercise Average exercise Average exercise Average Shares price fair value Shares price fair value Shares price fair value --------- -------- ---------- ------- -------- ---------- --------- -------- ---------- Exercise price exceeds market price.......... 110,000 $1.00 $0.02 500,000 $2.00 $ -- -- $ -- $ -- Exercise price equals market price.......... 1,800,000 0.01 -- -- -- -- 3,449,284 5.82 1.33 Exercise price is less than market price... 153,462 0.03 .80 202,500 0.39 1.33 518,000 .69 1.38 Six months ended June 30, 1999 (unaudited) --------------------------- Weighted Average Weighted exercise Average Shares price fair value ------- -------- ---------- Exercise price exceeds market price.......... -- $ -- $ -- Exercise price equals market price.......... 650,200 30.33 40.45 Exercise price is less than market price... -- -- --
The Company has elected to follow the measurement provisions of Accounting Principles Board Opinion No. 25, under which no recognition of expense is required in accounting for stock options granted to employees for which the exercise price equals or exceeds the fair market value of the stock at the grant date. In those cases where options have been granted when the option price is below fair market value, the Company recognizes compensation expense over the vesting period using the aggregated percentage of F-22 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) compensation accrued method as prescribed by Financial Accounting Standards Board Interpretation No. 28. Compensation expense of $29,813, $143,922, $237,900 was recognized during the period from March 1, 1996 (inception) to December 31, 1996, and for the years ended December 31, 1997 and 1998, respectively, for options granted with exercise prices less than grant date fair market value. To estimate compensation expense which would be recognized under SFAS No. 123, Accounting for Stock-based Compensation, the Company uses the modified Black-Scholes option-pricing model with the following weighted-average assumptions for options granted through December 31, 1998: risk-free interest rate ranging from 4.24% to 6%; expected dividend yield of 0%; no volatility (prior to becoming a public company); and an expected life of six years. Had compensation expense for the Plan been determined based on fair value at the grant dates for awards under the Plan consistent with SFAS No. 123, Accounting for Stock-Based Compensation, the Company's net losses for the period from March 1, 1996 (inception) to December 31, 1996, and the years ended December 31, 1997 and 1998, would have been adjusted to the following pro forma amounts:
1996 1997 1998 --------- --------- ----------- Net loss as reported........................ $(380,524) $(428,690) $(9,056,458) Net loss, pro forma......................... (380,859) (430,180) (9,472,322) Basic net loss per share, pro forma......... (0.02) (0.02) (0.35)
Additional information regarding options outstanding as of December 31, 1998, is as follows:
Options outstanding Options exercisable -------------------------------------- -------------------------- Weighted average remaining Weighted Weighted Range of Number contractual average Number average exercise prices Outstanding life (yrs.) Exercise price Exercisable exercise price --------------- ----------- ----------- -------------- ----------- -------------- $0.01 1,965,876 7.31 $0.01 1,273,480 $0.01 0.10 28,462 7.67 0.10 28,462 0.10 1.00-1.50 44,646 8.28 1.23 24,750 1.00 2.00-3.00 693,396 8.93 2.02 74,916 2.00 3.75-4.00 233,000 9.56 3.88 -- -- 6.00-7.50 2,330,100 9.93 7.41 107,858 7.50 23.53 4,000 10.00 23.53 -- -- --------- --------- 5,299,480 8.78 $3.73 1,509,466 $0.66 ========= =========
At December 31, 1998, 769,900 shares were available for future grants under the Plan. In connection with the May and August 1998 private placement offering, the Company issued warrants to purchase 4,127,672 shares of common stock to five third-party participants for consulting services performed in identifying, structuring and negotiating future financings. These warrants expire between May 21, 2008 and August 6, 2008. The exercise prices are as follows:
Shares Price ------ ----- 2,201,424............................... $2.00 963,124............................... 3.00 963,124............................... 5.00
F-23 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) In July 1998, the Company issued warrants to purchase 955,934 shares of common stock at an exercise price of $0.01 to a former consultant in conjunction with the acquisition of Outpost (Note 4). These warrants expire on October 30, 2002. On August 24, 1998, the Company issued to AOL warrants to purchase up to 1,979,832 shares of common stock, which warrants vest in 16 equal quarterly installments over four years, conditioned on the delivery by AOL of a minimum number of searches each quarter on the Company's white pages directory service. The warrants have an exercise price of $6.00 per share. Stock purchase rights plan: On June 26, 1998, the Board of Directors approved the InfoSpace, Inc. Stock Purchase Rights Plan. The plan is offered to employees of the Company and its subsidiaries. The purpose of the plan is to provide an opportunity for employees to invest in the Company and increase their incentive to remain with the Company. A maximum of 1,000,000 shares of common stock are available for issuance under the plan. During July 1998, the Company offered shares to employees under the plan, resulting in the sale of 446,502 shares at $3.75 per share. The plan was terminated on August 24, 1998. 1998 Employee Stock Purchase Plan: The Company adopted the 1998 Employee Stock Purchase Plan (the ESPP) in August 1998. The ESPP was implemented upon the effectiveness of the initial public offering. The ESPP is intended to qualify under Section 423 of the Code, and permits eligible employees of the Company and its subsidiaries to purchase common stock through payroll deductions of up to 15% of their compensation. Under the ESPP, no employee may purchase common stock worth more than $25,000 in any calendar year, valued as of the first day of each offering period. In addition, owners of 5% or more of the Company's, or subsidiary's common stock may not participate in the ESPP. An aggregate of 900,000 shares of common stock are authorized for issuance under the ESPP. The ESPP was implemented with six-month offering periods, with the first such period commencing upon the effectiveness of the initial public offering and ending July 31, 1999. Thereafter, offering periods will begin on each February 1 and August 1. The price of common stock purchased under the ESPP will be the lesser of 85% of the fair market value on the first day of an offering period and 85% of the fair market value on the last day of an offering period, except that the purchase price for the first offering period will be equal to the lesser of 100% of the initial public offering price of the common stock offered hereby and 85% of the fair market value on July 31, 1999. The ESPP does not have a fixed expiration date, but may be terminated by the Company's Board of Directors at any time. No shares have been issued under the ESPP as of June 30, 1999 (unaudited). Note 5: Business Combinations YPI: On May 16, 1997, the Company acquired all outstanding Membership Interest Units of YPI, a limited liability company. YPI operations began to be included in the Company's financial statements on the effective date of the acquisition, May 1, 1997. The YPI advertising agreements provided yellow pages directory publishers with an Internet distribution channel and had terms of one month to one year. YPI is a yellow pages sales consortium business. In conjunction with the acquisition, the Company acquired certain advertising agreements and assumed a note payable for $90,000. In connection with the acquisition of YPI during May 1997, 2,000,000 shares of common stock were placed into an escrow account. The aggregate number of shares of the escrow stock to be delivered was derived from revenues generated by the business during the measurement period. Before December 31, 1997, the number of shares to be released from escrow was finalized and a total of 170,000 escrow shares were issued to the sellers on January 2, 1998. These shares were included in the calculation of basic earnings F-24 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) per share as of January 1, 1998, and in the calculation of diluted earnings per share as of the effective date of acquisition, May 1, 1997. The remaining 1,830,000 common shares were returned to the Company for cancellation. The Company acquired YPI primarily to obtain rights to its advertising agreements and the services of its founder to further develop the Company's business. YPI's shareholders have represented that YPI had no significant operations and that detailed YPI financial information is not available. The allocation of purchase price, as determined after the release of shares from escrow was finalized, is summarized as follows:
Book and fair value ---------- Book value of net liabilities assumed at cost................. $(90,000) Fair value adjustments: Fair value of purchased advertising contracts............... 85,417 -------- Fair value of net assets acquired............................. (4,583) Purchase price: Acquisition costs........................................... 14,000 Fair value of 170,000 shares issued......................... 292,000 -------- Excess of purchase price over net assets acquired, allocated to goodwill (amortized over five years)...................... $310,583 ========
Outpost Network, Inc.: On June 2, 1998, the Company acquired all of the common stock of Outpost, a privately held company, for a purchase consideration of 2,999,976 shares of the Company's common stock, cash of $35,000, assumed liabilities of $264,000, and acquisition expenses of $1,957,000. In conjunction with the acquisition, the Company was required to issue warrants valued at $1,902,000 to a former consultant, which are included in acquisition costs. The exercise price of the warrants was specified in the consulting agreement between the Company and the former consultant dated October 30, 1997. Pursuant to this agreement, the former consultant rendered advice to the Company regarding the structure and terms of the Outpost merger and the warrants were earned based on the completion of the merger. Therefore, the warrant value was determined on June 2, 1998, the effective date of the merger. The transaction was accounted for as a purchase for accounting purposes. The allocation of purchase price is summarized as follows:
Book and fair value ---------- Book value of net liabilities assumed at cost................ $ (191,000) Fair value adjustments: Fair value of purchased technology, including in-process research and development.................................. 3,600,000 Fair value of assembled workforce.......................... 40,000 ---------- Fair value of net assets acquired............................ 3,449,000 Purchase price: Cash paid.................................................. 35,000 Fair value of shares issued................................ 6,000,000 Acquisition costs (including the warrants issued with a fair value of $1,902,000)................................. 1,957,000 ---------- Excess of purchase price over net assets acquired, allocated to goodwill (amortized over five years)..................... $4,543,000 ==========
F-25 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The $3,600,000 value of purchased technology includes purchased in-process research and development for future InfoSpace products. Generally accepted accounting principles require purchased in-process research and development with no alternative future use to be recorded and charged to expense in the period acquired. Accordingly, the results of operations for the year ended December 31, 1998, include the write-off of $2,800,000 of purchased in-process research and development. The remaining $800,000 represents the purchase of core technology and existing products which are being amortized over an estimated useful life of five years. The following unaudited pro forma information shows the results of the Company for the years ended December 31, 1998 and 1997, as if the acquisition of Outpost occurred on January 1, 1997. The pro forma information includes adjustments relating to the financing of the acquisition, the effect of amortizing goodwill and other intangible assets acquired, and assumes that Company shares issued in conjunction with the acquisition were outstanding as of January 1, 1997. The pro forma results of operations are unaudited, have been prepared for comparative purposes only, and do not purport to indicate the results of operations which would actually have occurred had the combination been in effect on the date indicated or which may occur in the future:
(unaudited) 1997 1998 ----------- ------------ Revenue......................................... $ 1,915,990 $ 9,333,459 Net loss........................................ (3,130,332) (10,551,855) Basic and diluted net loss per share............ (0.13) (0.37)
My Agent Technology (unaudited): On June 30, 1999 the Company acquired the MyAgent technology and related assets from Active Voice Corporation for $18 million dollars. The acquisition was accounted for as a purchase in accordance with the provisions of Accounting Principles Board Opinion ("APB") No. 16. Under the purchase method of accounting, the purchase price is allocated to the assets acquired and the liabilities assumed based on their fair values at the date of the acquisition. Other than the MyAgent technology modules, no other assets or liabilities were assumed as part of this acquisition. The Company recorded a non-recurring charge of $3.9 million for in-process research and development that had not yet reached technological feasibility and had no alternative future use. The Company also recorded a one-time charge of $1.0 million for expenses incurred with the transaction. These expenses consisted of bonus payments made to certain Active Voice MyAgent team employees who accepted employment with InfoSpace.com but who are under no agreement to continue their employment with InfoSpace. The Company also recorded $13.7 million of goodwill and $480,000 of other intangible assets. These intangibles will be amortized over their useful life, which the Company has estimated to be five years. The allocation of the purchase price is summarized as follows: Fair value of purchased technology, including in-process Research and development.................................... $ 4,300,000 Fair value of assembled workforce............................ 80,000 ----------- Fair value of net assets acquired............................ 4,380,000 Purchase price: Cash paid.................................................. 18,000,000 Acquisition costs.......................................... 100,000 ----------- Excess of purchase price over net assets acquired, Allocated to goodwill (amortized over five years)..................... $13,720,000 ===========
F-26 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) The $4.3 million value of purchased technology includes purchased in-process research and development for future InfoSpace products. Generally accepted accounting principles require purchased in-process research and development with no alternative future use to be recorded and charged to expense in the period acquired. Accordingly, the results of operations for the quarter ended June 30, 1999, include the write-off of $3.9 million of purchased in-process research and development. The remaining $400,000 represents the purchase of core technology which is being amortized over an estimated useful life of five years. The MyAgent product team was not accounted for as a separate entity, a subsidiary, or a line of business, or division of the business, but rather was part of the research and development group. Accordingly, historical financial information is not available. The Company expects these modules to be fully integrated into the Company's full suite of Internet service offerings. Further, the modules will not be distinguishable market segments for financial reporting purposes or for management purposes. Note 6: Commitments and Contingencies The Company has noncancellable operating leases for corporate facilities. The leases expire through June, 2004. Rent expense under operating leases totaled $36,000, $83,000 and $179,000 for the period from March 1, 1996 (inception) to December 31, 1996, the years ended December 31, 1997 and 1998, respectively. Rent expense under operating leases totaled $41,000 and $187,000 (unaudited) for the six months ended June 30, 1998 and 1999, respectively. The Company also has noncancellable carriage fee agreements with certain affiliates. Future minimum rental payments required under noncancellable operating leases are as follows for the periods ending December 31: 1999............................................................ $ 307,576 2000............................................................ 308,184 2001............................................................ 314,160 2002............................................................ 269,511 2003............................................................ 179,131 ---------- $1,378,562 ==========
Future payments required under noncancellable affiliate carriage fee agreements are as follows for the periods ending December 31: 1999............................................................ $5,830,141 2000............................................................ 2,807,143 2001............................................................ 1,750,000 2002............................................................ 750,000 ---------- $1,137,284 ==========
Trademark license agreements: Effective as of July 1, 1998, the Company entered into two trademark license agreements with Netscape Communications Corporation (Netscape) to license two of Netscape's trademarks for one-time nonrefundable license fees totaling $3,000,000. The trademark license fees were capitalized and amortized over one year, the expected useful life of the trademarks. The trademarks were fully amortized at June 30, 1999 (unaudited). F-27 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Directory services agreements: The Company entered into two directory services agreements with Netscape effective as of July 1, 1998. Under these agreements, which provide for a one-year term, with automatic renewal, the Company serves as the exclusive provider of co-branded yellow pages and white pages directory services on the Netscape home page (Netcenter). Netscape has guaranteed the Company a minimum level of use of the Company's yellow pages and white pages directories, and the Company has agreed to pay Netscape a carriage fee each quarter equal to the product of (x) the cost per click through as specified in the applicable directory services agreement and (y) the number of click throughs delivered by Netscape, up to a specified maximum. The Company accrues monthly a liability for the estimated click throughs delivered. Netscape reports the number of click throughs by month on a quarterly basis and invoices the Company on a quarterly basis. Payments to Netscape will be recorded as sales and marketing expenses during the quarter in which the click throughs occur. This minimum payment is included in the noncancellable affiliate carriage fee payments disclosed above. The Company expects Netscape to meet the minimum guaranteed click throughs during the period of the directory services agreements. In the event that Netscape fails to deliver the guaranteed minimum number of click throughs, Netscape has agreed to either continue the link to the Company's content services beyond the term of the agreement until the guaranteed minimum click throughs have been achieved or deliver to the Company a program of equivalent value as a remedy for the shortfall in click throughs. Netscape and the Company will share advertising revenue generated from a search of the Company's directory services initiated on Netscape's home page. Interactive Marketing Agreement (unaudited): On June 30, 1999 the Company entered into an agreement with AOL to provide white page directory services to AOL's Compuserve and Digital City divisions and its Netscape Communications subsidiary for a two year term. Pursuant to the agreement, the Company agreed to provide white pages listings and directory services. The Company is required to pay to AOL a bi-annual carriage fee. In return, AOL has agreed to deliver a minimum number of searches each year. If AOL delivers more searches in either or both of the years, we are required to pay AOL additional fees on a cost per search basis. In the event that there is a shortfall in searches as of the end of the initial two year term of the agreement, AOL will extend the term for six months or until the shortfall is made up, whichever occurs first. The Company will account for revenue and revenue sharing under the agreements with AOL under our existing revenue recognition policies described in our Note 1. The total carriage fee payments to be made under the white pages directory services agreement will be recognized based on actual searches delivered over the term of the agreement as sales and marketing expense. White pages and classifieds agreements: On August 24, 1998, the Company entered into agreements with America Online, Inc. (AOL) to provide white pages directory and classifieds information services to AOL. Pursuant to the white pages directory services agreement, the Company has agreed to provide to AOL white pages listings and directory service. The Company is required to pay to AOL a quarterly carriage fee, the retention of which is conditioned on the quarterly achievement of a minimum number of searches on the AOL white pages site. The quarterly carriage fee is paid in advance at the beginning of the quarter in which the searches are expected to occur and is recorded as a prepaid expense in the quarter it is paid. The fee is refundable if the minimum number of searches on the AOL white pages site for such quarter is not achieved. In addition, AOL has guaranteed to the Company a minimum number of searches over the term of the agreement. In the event that AOL does not deliver the guaranteed minimum number of searches over the term of the agreement, AOL has agreed to pay to the Company a cash penalty payment. The Company will share with AOL revenues generated by advertising on the Company's white pages directory services delivered to AOL. The Company is entitled to a greater percentage of advertising revenues than is AOL if the amount of such revenues received by the Company is less than the carriage fees paid to AOL. The Company has agreed to provide white pages directory services to AOL for a three-year term beginning on November 19, 1998, which term may be extended for four additional one-year terms at AOL's F-28 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) discretion. The agreement may be terminated by AOL for any reason after 18 months or at any time upon the acquisition by AOL of a competing white pages directory services business. In the event of any such termination, AOL is required to pay a termination fee to the Company. In addition, without the payment of a termination fee, AOL has the right to terminate the agreement in the event of a change of control of the Company. The Company has agreed to provide classifieds information services to AOL for a two-year term, with up to three one-year extensions at AOL's discretion. AOL has agreed to pay to the Company a quarterly fee and will share with the Company revenues generated from payments by individuals and commercial listing services for listings on the AOL classifieds service. Pursuant to the terms of these agreements, the Company has granted AOL the right to negotiate with the Company exclusively and in good faith for a period of 30 days with respect to proposals or discussions that would result in a sale of a controlling interest of the Company or other merger, asset sale or other disposition that effectively results in a change of control of the Company. In connection with the agreements, on August 24, 1998, the Company issued to AOL warrants to purchase up to 1,979,832 shares of common stock, which warrants vest in 16 equal quarterly installments over four years, conditioned on the delivery by AOL of a minimum number of searches each quarter on the Company's white pages directory service. The warrants have an exercise price of $6.00 per share. The revenue and revenue sharing under the agreements with AOL will be accounted for under the Company's existing revenue recognition policies described in Note 1. The Company expects AOL to meet the minimum number of searches each quarter. Accordingly, the total carriage fee payments to be made under the white pages directory services agreement will be recognized ratably over the term of the agreement as sales and marketing expense. However, if AOL does not deliver the minimum searches on the AOL white pages during that quarter, then AOL is obligated to refund the quarterly carriage fee paid for that specific quarter, in which case the Company would credit prepaid expense and reduce the total cost of the white pages directory services agreement by the amount of the refund. The adjusted total cost of the agreement would be recognized ratably over the remaining term of the agreement as sales and marketing expense, which term would include the quarter in which AOL did not deliver the minimum number of searches. For at least the first two years of the white pages agreement, the Company expects that actual carriage fee payments will exceed the sales and marketing expense recorded for the quarter in which the payment is made. As such, the Company expects to experience increases in its prepaid expense account during this time. These fees are included in the noncancellable affiliate carriage fee payments disclosed above. Any termination fee paid to the Company by AOL will be recognized as revenue when paid. The warrants were valued using the fair value method, as required under SFAS No. 123. The fair value of the warrants was approximately $3,300,000 at the date of grant, and is being amortized ratably over the four-year vesting period. The underlying assumptions used to determine the value of the warrants are an expected life of six years and a 5.5% risk-free interest rate. Litigation: On December 7, 1998, a complaint was filed against the Company on behalf of an alleged former employee in Superior Court for Suffolk County in the Commonwealth of Massachusetts alleging that he was terminated without cause and that he entered into an agreement with us that entitles him to an option to purchase 4,000,000 shares of common stock or 10% of the Company's equity. The complaint alleges breach of contract, breach of the covenant of good faith, breach of fiduciary duty, misrepresentation, promissory estoppel, intentional interference with contractual relations and unfair and deceptive acts and practices, seeking specific performance of the alleged agreement for 10% of the Company's equity, damages F-29 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) equal to the value of 10% of the Company's equity, punitive damages and attorneys' fees and costs and treble damages under the Massachusetts Consumer Protection Act (Mass. G.L. Chapter 93A). On January 7, 1999, the suit was removed to the United States District Court for the District of Massachusetts. Discovery has commenced and a trial is tentatively scheduled for March 2000. The Company is currently investigating the claims at issue and believes that it has meritorious defenses to such claims. Nevertheless, litigation is inherently uncertain and the Company may not prevail in this suit. To the extent that the Company is required to issue shares of common stock or options to purchase common stock as a result of the suit, the Company would recognize an expense equal to the number of shares issued multiplied by the fair value of the common stock on the date of issuance, less the exercise price of any options required to be issued. This could have a material adverse effect on the Company's results of operations, and any such issuances would be dilutive to existing stockholders, the dilutive impact of which may be mitigated to the extent it is offset by shares of common stock in an escrow account established by the Company's Chief Executive Officer. On December 23, 1998, the Company initiated litigation against Internet Yellow Pages, Inc., or IYP, by filing suit in United States District Court for the Western District of Washington. On February 3, 1999, the Company served a first amended complaint on IYP and Greg Crane, an agent of IYP, in which the Company asserted claims for (a) account stated, (b) breach of contract, and (c) fraud. Neither IYP nor Crane have answered our complaint. On February 11, 1999, however, the Company was served with a complaint filed by IYP in Arizona Superior Court for Maricopa County, which complaint was filed on February 3, 1999. In its complaint, IYP asserts causes of action for breach of contract, fraud, extortion, and racketeering under Arizona Revised Statutes, Section 13- 2301(D)(l) and (t), and seeks relief consisting of $1,500,000 and other unquantified money damages, punitive damages, treble damages under Arizona Revised Statutes, Sec. 13-2314.04, and attorney's fees. On March 5, 1999, IYP answered the Company's complaint in the Washington action, and asserted claims for breach of contract, fraud, extortion and Consumer Protection Act, or CPA, violations. IYP seeks relief consisting of $1,500,000 and other unquantified money damages, treble damages under the CPA, and attorneys' fees. Trial in the Washington action is set for April 2000, and discovery is ongoing; the Arizona action is presently stayed. The Company is currently investigating the claims and believes it has meritorious defenses to such claims. Nevertheless, litigation is uncertain and the Company may not prevail in this suit. On February 24, 1999, the Company received a letter from counsel for a former content provider claiming that it is entitled to an option to acquire up to 5% of InfoSpace.com. The Company reviewed the claim and believes that it is entirely without merit. The Company responded to the counsel accordingly in a letter dated March 4, 1999 and intends to vigorously defend any suit if filed. To the extent that the Company is required to issue shares of its common stock or options to purchase common stock as a result of the claim, the Company would recognize an expense equal to the number of shares issued multiplied by the fair value of the Company's common stock on the date of issuance, less the exercise price of any options required to be issued. This could harm the Company's results of operations, and any such issuances would be dilutive to existing stockholders, the impact of which may be mitigated to the extent it is offset by shares of common stock in an escrow account established by the Company's Chief Executive Officer. Other-Non-recurring: On February 22, 1999, the Company reached a settlement with a former employee. Under the terms of the settlement the former employee will receive a cash payment of $4.5 million. The Company had previously accrued a liability of $240,000 for estimated settlement costs. Accordingly, the Company has recorded an additional expense of $4,260,000 for the difference between the accrued liability and the actual settlement amount. As this subsequent event was settled after December 31, 1998 but prior to the issuance of the financial statements, the additional expense has been recorded in the fourth quarter of 1998. F-30 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) On July 23, 1999, the Company settled the patent infringement claim that was filed by Civix-DDI, LLC in January 1999. Under the settlement agreement, the patents have been licensed to the Company in exchange for a lump sum royalty payment of $209,500 (unaudited). This settlement payment has been accrued in the quarter ended June 30, 1999 and is reflected in Other-non-recurring charges. Contingencies: In the Company's early stage of development, the Company did not clearly document arrangements with employees and consultants, including matters relating to the issuance of stock options. As a result of this incomplete documentation, the Company may receive claims in the future asserting rights to acquire common stock. Note 7: Income Taxes No provision for federal income tax has been recorded as the Company has incurred net operating losses through December 31, 1998 and through the six months ended June 30, 1999 (unaudited). The tax effects of temporary differences and net operating loss carryforwards that give rise to the Company's deferred tax assets and liabilities are as follows:
December 31, ---------------------- June 30, 1997 1998 1999 --------- ----------- ----------- (unaudited) Deferred tax assets: Net operating loss carryforward......... $ 106,000 $ 36,000 $ 3,777,000 Intangible amortization................. 37,000 60,000 61,000 Compensation expense--stock options..... 59,000 59,000 -- Allowance for bad debt.................. 16,000 203,000 191,000 Litigation accrual...................... 47,000 1,530,000 -- Warrants................................ -- 46,000 185,000 Deferred revenue........................ -- 473,000 473,000 Accrued carriage fees................... -- -- 383,000 Other, net.............................. 10,000 34,000 66,000 --------- ----------- ----------- Gross deferred tax assets............. 275,000 2,441,000 5,136,000 Deferred tax liabilities: Purchased technology.................... -- 252,000 242,000 Prepaid advertising..................... -- 113,000 -- Depreciation............................ 2,000 13,000 12,000 Compensation expense -- stock options and ESPP............................... -- -- 2,255,000 Other, net.............................. 2,000 -- 42,000 --------- ----------- ----------- Gross deferred tax liabilities........ 4,000 378,000 2,551,000 --------- ----------- ----------- Net deferred tax assets................... 271,000 2,063,000 2,585,000 Valuation allowance....................... (271,000) (2,063,000) (2,585,000) --------- ----------- ----------- Deferred tax balance...................... $ -- $ -- $ -- ========= =========== ===========
At December 31, 1997 and 1998 and June 30, 1999 (unaudited), the Company fully reserved its deferred tax assets. The Company believes sufficient uncertainty exists regarding the realizability of the deferred tax assets such that a full valuation allowance is required. The net change in the valuation allowance during the years ended December 31, 1997 and 1998, was $144,000 and $1,792,000, respectively. F-31 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Note 8: Net Loss Per Share The Company has adopted SFAS No. 128, Earnings per Share. Basic earnings per share is computed using the weighted average number of common shares outstanding during the period. Diluted earnings per share is computed using the weighted average number of common and common equivalent shares outstanding during the period. Common equivalent shares consist of the incremental common shares issuable upon conversion of the exercise of stock options and warrants (using the treasury stock method). Common equivalent shares are excluded from the computation if their effect is antidilutive. The Company had a net loss for all periods presented herein; therefore, none of the options and warrants outstanding during each of the periods presented, as discussed in Note 4, were included in the computation of diluted loss per share as they were antidilutive. Options and warrants to purchase a total of 2,025,000, 2,726,000, 12,362,918 and 12,245,859 shares of common stock were excluded from the calculations of diluted loss per share for the period from March 1 to December 31, 1996, the years ended December 31, 1997 and 1998 and the six months ended June 30, 1999, respectively. 170,000 contingently issuable shares of common stock have been excluded from the calculation of basic earnings per share for the year ended December 31, 1997 (Note 4). Note 9: Information on Products and Services In June 1997, the FASB issued SFAS No. 131, Disclosures about Segments of an Enterprise and Related Information. SFAS No. 131 establishes standards for the way that companies report information about operating segments in annual financial statements. It also establishes standards for related disclosures about products and services, geographic areas, and major customers as well as the reporting of selected information about operating segments in interim financial statements for the year ended December 31, 1998. The adoption of SFAS No. 131 did not have a material effect on the Company's primary consolidated financial statements but did affect the Company's disclosures. The Company generates substantially all of its revenues through common, aggregated and integrated content delivered through a common physical infrastructure, and therefore the Company has only one reportable segment. Substantially all revenues are generated from domestic sources. All Company long-lived assets are physically located within the United States. Total operating expenses are controlled centrally based on established budgets by operating department. Operating departments include product development, sales and marketing, account management and customer service, and finance and administration. Assets, technology, and personnel resources of the Company are shared and utilized for all of the Company's service offerings. These resources are allocated based on contractual requirements, the identification of enhancements to the current service offerings, and other non- financial criteria. The Company does not prepare operating statements by revenue source. The Company does not account for, and does not report to management, its assets or capital expenditures by revenue source. F-32 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) Revenue Information Revenues are derived from three revenue sources: advertising, promotions, and non-advertising based private label solutions. Advertising revenue includes national and local advertising, and classifieds. Promotions revenue includes content carriage and syndication. Other revenues include technology licensing, co-brand fees, and e-commerce transactions. Contracts with customers often include revenue from more than one revenue source.
Years ended December 31, Six months ended June 30, ------------------------------ -------------------------- 1996 1997 1998 1998 1999 -------- ---------- ---------- ------------ ------------- (unaudited) Advertising revenues.... $168,679 $1,465,354 $7,321,752 $ 2,047,549 $ 9,367,512 Promotions revenues..... 10,000 189,106 1,620,924 640,030 2,368,828 Other revenues.......... 20,693 30,636 471,774 167,431 138,448 -------- ---------- ---------- ------------ ------------- Total revenues.......... $199,372 $1,685,096 $9,414,450 $ 2,855,010 $ 11,874,788 ======== ========== ========== ============ =============
Customer Information For the six months ended June 30, 1999, one customer accounted for approximately 27% (unaudited) of revenues. For the year ended December 31, 1998, the same customer accounted for approximately 21% of revenues. For the year ended December 31, 1997 and for the period from March 1, 1996 (inception) to December 31, 1996, no one customer accounted for more than 10% of revenues. Note 10: Related-party transactions During the period from March 1, 1996 (inception) to December 31, 1996, years ended December 31, 1997 and 1998, the Company sold advertising to an entity in which the Company's chief executive officer has an equity interest resulting in revenues of $10,000, $200,000 and $19,269. For the six months ended June 30, 1998 and 1999, the Company sold advertising to the same entity resulting in revenues of $174 and $297,905 (unaudited), respectively. Note 11: Investment in Joint Venture On July 16, 1998, the Company established InfoSpace Investments, Ltd., a wholly owned subsidiary incorporated in England and Wales. On July 16, 1998, the Company and InfoSpace Investments, Ltd. entered into a joint venture agreement (the Joint Venture Agreement) with another party forming a new company, TDL InfoSpace (Europe) Limited (TDL InfoSpace), with the purpose of carrying on the business of the aggregation and syndication of content on the Internet, initially in the United Kingdom. Pursuant to the terms of the Joint Venture Agreement, both the Company and its joint venture partner entered into license agreements with TDL InfoSpace for offsetting payments to each of the Company and its joint venture partner of (Pounds)50,000. These amounts were not intended to represent the fair market value of the license agreements to an unrelated third party. Under the license agreement between the joint venture partner and TDL InfoSpace, the joint venture partner licenses its U. K. directory information database to TDL InfoSpace. Under the Joint Venture Agreement, the joint venture partner also sells Internet yellow pages advertising of the joint venture through its local sales force. Under the license agreement between the Company and TDL InfoSpace, the Company licenses its technology and provides hosting services to TDL InfoSpace. In addition, under the Company's license agreement, TDL InfoSpace is obligated to reimburse F-33 INFOSPACE.COM, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued) the Company for any incremental costs incurred by the Company for its efforts with respect to the hosting services. In the event that TDL InfoSpace expands into other countries, it is required to pay to the Company an additional technology license fee of $50,000 per additional country. The Company's license agreement also provides that, in the event that the Company no longer holds any ownership interest in the joint venture, InfoSpace and the Company will negotiate an arm's-length license fee for the Company's technology, not to exceed $1,000,000. On July 17, 1998, the Company transferred $496,000 to InfoSpace Investments, Ltd. InfoSpace Investments, Ltd. utilized these funds to acquire 475,000 shares of TDL InfoSpace, which represents a noncontrolling 50% interest. Under the terms of the Joint Venture Agreement, the Company has certain obligations as guarantor, principally to guarantee the performance by InfoSpace Investments, Ltd. of its obligations under the Joint Venture Agreement. The Company accounts for its investment in the joint venture under the equity method. For the year ended December 31, 1998, the Company recorded a loss from the joint venture of $125,000. For the six months ended June 30, 1999, the Company recorded a loss from the joint venture of $76,000 (unaudited). Note 12: Other Investments The Company invests in equity instruments of privately-held, information technology companies for business and strategic purposes. These investments are included in other long-term assets and are accounted for under the cost method. For these investments, the Company's policy is to regularly review the assumptions underlying the operating performance and cash flow forecasts in assessing the carrying values. The Company identifies and records impairment losses on long-lived assets when events and circumstances indicate that such assets might be impaired. To date, no such impairment has been recorded. On January 1, 1999 the Company purchased 250,000 shares of Series D Convertible Preferred Stock of a privately held online merchant company at $2.00 per share in a private placement transaction. On June 30, 1999, the Company received 80,000 shares of Series F Convertible Preferred Stock of the same online merchant company in lieu of cash payment for services to be performed by the Company in the future. These shares were valued at $5.00 per share in a private placement transaction. The revenue on this transaction has been deferred and will be recognized when the services are performed. On June 15, 1999, the Company purchased 611,996 (unaudited) shares of Series E Convertible Preferred Shares of a privately held provider of content solutions on the Internet at $8.17 per share in a private placement transaction. Note 13: Follow-on Offering (unaudited) In April 1999, the Company closed a follow-on offering. The Company sold 4,340,000 shares and raised approximately $185 million, net of expenses. Certain shareholders sold 3,020,000 shares. Note 14: Subsequent Event Acquisition of INEX Corporation: On August 13, 1999, the Company signed a definitive agreement to acquire Toronto-based INEX Corporation, a software company that develops Internet commerce solutions designed for small and medium business merchants. Under the terms of the acquisition, which will be accounted for as a pooling of interests, the Company will exchange approximately 900,000 shares of common stock for all of INEX's outstanding shares, warrants and options. The acquisition is expected to close in September, and is subject to customary conditions, including the receipt of regulatory approval and INEX shareholder approval. On August 13, 1999, the Company loaned INEX $1.0 million for operating capital. F-34 REPORT OF INDEPENDENT ACCOUNTANTS To the Board of Directors and Stockholders of INEX Corporation In our opinion, the accompanying balance sheets and the related statements of operations, comprehensive loss, changes in stockholders' equity and cash flows present fairly, in all material respects, the financial position of INEX Corporation as at December 31, 1998 and 1997 and the results of its operations, comprehensive loss and its cash flows for each of the three years ended December 31, 1998, 1997 and 1996 in conformity with generally accepted accounting principles in the United States of America. These financial statements are the responsibility of the company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards in Canada, which require that we plan and perform an audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for the opinion expressed above. The accompanying financial statements have been prepared assuming that the company will continue as a going concern. As discussed in note 1 to the financial statements, the company has incurred losses and negative cash flows from operations since inception, which raise substantial doubt about the company's ability to continue as a going concern. Management's plans in regard to these matters are also described in note 1. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. PricewaterhouseCoopers LLP Chartered Accountants Toronto, Canada February 11, 1999 (except for note 12, which is as of August 13, 1999) F-35 INEX CORPORATION BALANCE SHEETS
December 31, December 31, June 30, 1997 1998 1999 ------------ ------------ ----------- (unaudited) ASSETS Current assets: Cash and cash equivalents............. $ 34,231 $ 583,375 $ 927,202 Accounts receivable................... 11,043 60,305 84,888 Prepaid expenses...................... 12,638 25,992 15,914 ----------- ----------- ----------- Total current assets................ 57,912 669,672 1,028,004 Property and equipment -- net........... 57,813 76,866 132,496 ----------- ----------- ----------- Total assets........................ $ 115,725 $ 746,538 $ 1,160,500 =========== =========== =========== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable and accrued liabilities.......................... $ 135,804 $ 97,262 $ 162,535 Deferred revenue...................... 15,000 10,016 257 Promissory notes payable.............. 20,972 -- -- Stockholder's loan payable............ 5,304 -- -- ----------- ----------- ----------- Total current liabilities........... 177,080 107,278 162,792 Convertible debentures.................. 174,764 163,343 169,837 ----------- ----------- ----------- Total liabilities................... 351,844 270,621 332,629 Commitments (Note 10) Stockholders' Equity (Deficiency): Common stock Authorized unlimited; 1,982,290 and 1,575,088 issued and outstanding in 1998 and 1997...................... 1,047,190 2,337,801 2,413,846 Class A preference shares, Series 1 Authorized 1,625,000 issuable in series; 240,271 and 0 issued and outstanding in 1998 and 1997......... -- 859,056 859,056 Special warrants, Series A 250,000 and 0 issued and outstanding in 1998 and 1997..................... -- 659,698 659,698 Special warrants, Series B 360,000 issued and outstanding in 1999................................. -- -- 1,727,603 Additional paid-in capital............ 110,687 910,257 957,480 Deferred stock-based compensation..... -- (118,086) (50,915) ----------- ----------- ----------- 1,157,877 4,648,726 6,566,768 Cumulative translation adjustment....... (25,780) (42,348) 3,989 Accumulated deficit..................... (1,368,216) (4,130,461) (5,742,886) ----------- ----------- ----------- Total stockholders' equity (deficiency)....................... (236,119) 475,917 827,871 ----------- ----------- ----------- Total liabilities and stockholder's equity............................. $ 115,725 $ 746,538 $ 1,160,500 =========== =========== ===========
See accompanying notes to financial statements. F-36 INEX CORPORATION STATEMENTS OF OPERATIONS
Years ended December 31, Six months ended June 30, ------------------------------------ -------------------------- 1996 1997 1998 1998 1999 ---------- ----------- ----------- ------------ ------------ (unaudited) (unaudited) Revenues................ $ -- $ 57,446 $ 208,910 $ 53,790 $ 266,111 Cost of revenues........ -- 18,932 29,720 9,677 25,555 ---------- ----------- ----------- ------------ ------------ Gross profit........ -- 38,514 179,190 44,113 240,556 Operating expenses: Product development... 39,212 170,459 644,965 257,872 518,793 Sales and marketing... 26,154 635,502 744,636 312,229 743,391 General and administrative....... 70,271 463,740 1,573,980 873,872 598,093 ---------- ----------- ----------- ------------ ------------ Total operating expenses........... 135,637 1,269,701 2,963,581 1,443,973 1,860,277 ---------- ----------- ----------- ------------ ------------ Loss from operations.... (135,637) (1,231,187) (2,784,391) (1,399,860) (1,619,721) Other income (expense), net.................... -- (1,038) 22,146 14,302 7,296 ---------- ----------- ----------- ------------ ------------ Net loss................ $ (135,637) $(1,232,225) $(2,762,245) $ (1,385,558) $ (1,612,425) ========== =========== =========== ============ ============ Basic and diluted net loss per share......... $ (0.14) $ (0.96) $ (1.58) $ (0.85) $ (0.81) ========== =========== =========== ============ ============ Shares used in computing basis and diluted net loss per share......... 1,001,859 1,289,897 1,753,249 1,622,546 1,997,676 ========== =========== =========== ============ ============
See accompanying notes to financial statements. F-37 INEX CORPORATION STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
Class A Class A Special warrants, special shares Common shares preference shares Series A and B Additional Deferred ------------------ -------------------- ------------------ ------------------- paid-in Stock-based Shares Amount Shares Amount Shares Amount Warrants Amount Capital Compensation ------- --------- --------- ---------- -------- --------- -------- ---------- ---------- ------------ Balance, December 31, 1995......... -- $ -- 900,000 $ 659 -- -- -- $ -- $ -- $ -- Issued for cash............ 34,847 77,047 -- -- -- -- -- -- -- -- Issued for software and trademark....... -- -- 100,000 43,441 -- -- -- -- -- -- Net loss for the year............ -- -- -- -- -- -- -- -- -- -- ------- --------- --------- ---------- -------- --------- ------- ---------- --------- ----------- Balance, December 31, 1996......... 34,847 77,047 1,000,000 44,100 -- -- -- -- -- -- In respect of services rendered........ 10,112 25,564 -- -- -- -- -- -- -- -- Issued for cash............ -- -- 341,405 679,030 -- -- -- -- -- -- Issued for cash, together with a common share purchase warrant......... -- -- 167,224 188,309 -- -- -- -- 84,648 -- Converted into common shares on October 16, 1997............ (44,959) (102,611) 44,959 102,611 -- -- -- -- -- -- Issued in respect of services rendered on December 17, 1997............ -- -- 18,300 33,117 -- -- -- -- -- -- Issued in respect of services rendered throughout the year............ -- -- -- -- -- -- -- -- 26,039 -- Issued for cash on exercise of employee stock options......... -- -- 3,200 23 -- -- -- -- -- -- Net loss for the year............ -- -- -- -- -- -- -- -- -- -- ------- --------- --------- ---------- -------- --------- ------- ---------- --------- ----------- Balance, December 31, 1997......... -- -- 1,575,088 1,047,190 -- -- -- -- 110,687 -- Issued for cash............ -- -- -- -- 240,271 859,056 250,000 659,698 503,217 -- Issued for cash on exercise of warrants........ -- -- 179,392 378,928 -- -- -- -- (84,648) -- Issued for cash on exercise of employee stock options......... -- -- 227,810 911,683 -- -- -- -- (908,043) -- Issued in connection with promissory notes........... -- -- -- -- -- -- -- -- 160,377 -- Issued in respect of services rendered........ -- -- -- -- -- -- -- -- 2,349 -- Deferred compensation related to stock option grants... -- -- -- -- -- -- -- -- 1,126,318 (1,126,318) Amortization of stock-based compensation.... -- -- -- -- -- -- -- -- -- 1,008,232 Net loss for the year............ -- -- -- -- -- -- -- -- -- -- ------- --------- --------- ---------- -------- --------- ------- ---------- --------- ----------- Balance, December 31, 1998......... -- -- 1,982,290 2,337,801 240,271 859,056 250,000 659,698 910,257 (118,086) Issued for cash............ -- -- -- -- -- -- 360,000 1,727,603 123,142 -- Issued for cash on exercise of employee stock options......... -- -- 18,332 76,045 -- -- -- -- (75,919) -- Amortization of stock-based compensation.... -- -- -- -- -- -- -- -- -- 67,171 Net loss for the period.......... -- -- -- -- -- -- -- -- -- -- ------- --------- --------- ---------- -------- --------- ------- ---------- --------- ----------- Balance, June 30, 1999 (unaudited)...... -- $ -- 2,000,622 $2,413,846 240,271 $ 859,056 610,000 $2,387,301 $ 957,480 $ (50,915) ======= ========= ========= ========== ======== ========= ======= ========== ========= =========== Accumulated Deficit Total ------------ ------------ Balance, December 31, 1995......... $ (354) $ 305 Issued for cash............ -- 77,047 Issued for software and trademark....... -- 43,441 Net loss for the year............ (135,637) (135,637) ------------ ------------ Balance, December 31, 1996......... (135,991) (14,844) In respect of services rendered........ -- 25,564 Issued for cash............ -- 679,030 Issued for cash, together with a common share purchase warrant......... -- 272,957 Converted into common shares on October 16, 1997............ -- -- Issued in respect of services rendered on December 17, 1997............ -- 33,117 Issued in respect of services rendered throughout the year............ -- 26,039 Issued for cash on exercise of employee stock options......... -- 23 Net loss for the year............ (1,232,225) (1,232,225) ------------ ------------ Balance, December 31, 1997......... (1,368,216) (210,339) Issued for cash............ -- 2,021,971 Issued for cash on exercise of warrants........ -- 294,280 Issued for cash on exercise of employee stock options......... -- 3,640 Issued in connection with promissory notes........... -- 160,377 Issued in respect of services rendered........ -- 2,349 Deferred compensation related to stock option grants... -- -- Amortization of stock-based compensation.... -- 1,008,232 Net loss for the year............ (2,762,245) (2,762,245) ------------ ------------ Balance, December 31, 1998......... (4,130,461) 518,265 Issued for cash............ -- 1,850,745 Issued for cash on exercise of employee stock options......... -- 126 Amortization of stock-based compensation.... -- 67,171 Net loss for the period.......... (1,612,425) (1,612,425) ------------ ------------ Balance, June 30, 1999 (unaudited)...... $(5,742,886) $ 823,882 ============ ============
See accompanying notes to financial statements. F-38 INEX CORPORATION STATEMENTS OF COMPREHENSIVE LOSS
Years ended December 31, Six months ended June 30, ----------------------------------- -------------------------- 1996 1997 1998 1998 1999 --------- ----------- ----------- ------------ ------------ (unaudited) (unaudited) Net loss for the period................. $(135,637) $(1,232,225) $(2,762,245) $ (1,385,558) $ (1,612,425) Other comprehensive income: Foreign currency translation adjustments.......... (5,181) (20,599) (16,568) 2,395 46,337 --------- ----------- ----------- ------------ ------------ Comprehensive loss for the period............. $(140,818) $(1,252,824) $(2,778,813) $ (1,383,163) $ (1,566,088) ========= =========== =========== ============ ============
See accompanying notes to financial statements. F-39 INEX CORPORATION STATEMENTS OF CASH FLOWS
Years ended December 31, Six months ended June 30, ----------------------------------- -------------------------- 1996 1997 1998 1998 1999 --------- ----------- ----------- ------------ ------------ (unaudited) (unaudited) Operating Activities: Net loss............. $(135,637) $(1,232,225) $(2,762,245) $ (1,385,558) $ (1,612,425) Adjustments to reconcile net loss to net cash used by operating activities: Depreciation and amortization...... 1,549 61,055 26,794 12,082 25,137 Non-cash expense for services rendered.......... -- 84,720 162,726 101,019 -- Amortization of stock-based compensation...... -- -- 1,008,232 617,240 67,171 Cash provided (used) by changes in operating assets and liabilities: Accounts receivable.. (1,404) (9,377) (51,581) (39,427) (21,887) Prepaid expenses..... (972) (12,101) (14,633) (57,372) 10,962 Accounts payable and accrued liabilities......... 34,173 101,113 (31,900) 57,884 59,750 Deferred revenue..... -- 15,500 (4,133) 10,054 (10,019) --------- ----------- ----------- ------------ ------------ Net cash used by operating activities...... (102,291) (991,315) (1,666,740) (684,078) (1,481,311) Investing Activities: Purchase of property and equipment....... (18,969) (60,844) (50,355) (12,608) (77,004) --------- ----------- ----------- ------------ ------------ Net cash used by investing activities...... (18,969) (60,844) (50,355) (12,608) (77,004) Financing Activities: Issuance of capital stock -- net of issue costs......... 77,047 952,010 2,319,891 1,079,788 1,850,871 Issuance of promissory notes payable............. 1,253 21,670 235,992 243,309 -- Repayment of promissory notes payable............. -- (1,234) (256,220) (90,372) -- Change in stockholder's loan payable............. 45,893 (39,728) (5,116) (5,116) -- Issuance of debentures payable.. -- 180,584 -- -- -- --------- ----------- ----------- ------------ ------------ Net cash provided by financing activities...... 124,193 1,113,302 2,294,547 1,227,609 1,850,871 Impact of foreign exchange rate changes on cash............... (15) (29,830) (28,308) (17,546) 51,271 --------- ----------- ----------- ------------ ------------ Net Increase in Cash and Cash Equivalents.. 2,918 31,313 549,144 513,377 343,827 Cash and cash equivalents: Beginning of period.. -- 2,918 34,231 34,231 583,375 --------- ----------- ----------- ------------ ------------ End of period........ $ 2,918 $ 34,231 $ 583,375 $ 547,608 $ 927,202 ========= =========== =========== ============ ============ Supplemental cash flow information Common shares issued for services rendered............ $ -- $ 58,681 $ -- $ -- $ -- Options issued for services rendered... -- 26,039 2,349 2,349 -- Warrants issued in connection with promissory notes.... -- -- 160,377 98,670 -- Common shares issued for software and trademarks.......... 43,441 -- -- -- -- Interest paid........ -- -- 14,923 2,364 --
See accompanying notes to financial statements. F-40 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS Note 1: Organization and basis of presentation The company, pursuant to an agreement and as confirmed by articles of amalgamation dated February 5, 1997, amalgamated with Ack-Sys Inc. to continue as INEX Corporation. As both of these companies had been under common control, this business combination has been accounted for using a basis similar to the pooling of interests method of accounting whereby the financial statements reflect the combined historical carrying value of the assets, liabilities, stockholders' equity (deficiency) and the historical operating results of Ack- Sys Inc. and INEX Corporation for each of the years presented. The company has sustained losses and negative cash flows from operations since its inception. The company's ability to meet its obligations in the ordinary course of business is dependent upon its ability to raise additional financing through public or private equity financings, establish profitable operations, enter into collaborative or other arrangements with corporate sources, or secure other sources of financing to fund operations. During 1998, the company received cash and services of approximately $3.4 million through the issuance of common shares, Class A preference shares and special warrants, Series A. In February 1999, the company received approximately $1.9 million through the issuance of special warrants, Series B. Management intends to obtain additional financing from the company with which it is transacting a merger (note 12) in the current year. If anticipated financing transactions and operating results are not achieved, management has the intent and believes it has the ability to delay or reduce expenditures so as not to require additional financial resources, if such resources were not available on terms acceptable to the company. Nevertheless, these matters raise substantial doubt about the company's ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. The company has a limited operating history and its prospects are subject to the risks, expenses and uncertainties frequently encountered by companies in the new and rapidly evolving markets for Internet products and services. These risks include the failure to develop and extend the company's products, the rejection of the company's products by Internet consumers, vendors and/or advertisers, as well as other risks and uncertainties. Note 2: Summary of significant accounting policies Cash and cash equivalents The company considers all highly liquid investments purchased with original maturities of 90 days or less to be cash equivalents. Cash equivalents consist primarily of deposits in money market funds. Property and equipment Property and equipment, which are recorded at cost, are depreciated over their estimated useful lives using the straight-line method as follows: Computer equipment........................................... 3 years Furniture and fixtures....................................... 5 years Office equipment............................................. 5 years Leasehold improvements....................................... lease term
F-41 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued) Income taxes Income taxes are accounted for using an asset and liability approach, which requires the recognition of taxes payable or refundable for the current year and deferred tax assets and liabilities for the future tax consequences of events that have been recognized in the company's financial statements or tax returns. The measurement of current and deferred tax assets and liabilities are based on provisions of the enacted tax law; the effects of future changes in tax laws or rates are not anticipated. A valuation allowance is recognized, if, based on available evidence, it is more likely than not that some portion of the deferred tax asset will not be realized. Revenue recognition and deferred revenue Revenue from the sales of computer software licences are recognized once substantially all of the obligations under the sales agreements have been satisfied. Full provision is made for any anticipated returns. The company recognizes support revenue from contracts for ongoing technical support ratably over the term of the contract, which is generally one year. Deferred revenues are comprised of services that have yet to be provided and contracts that have not been recorded as revenue as the earning process is not complete. Research and development Research and development costs are expensed as incurred. Acquired software is capitalized and amortized over its estimated useful life not to exceed one year. Statement of Financial Accounting Standards No. 86, "Accounting for the Costs of Computer Software to be Sold, Leased or Otherwise Marketed," issued by the Financial Accounting Standards Board requires capitalization of certain software development costs subsequent to the establishment of technological feasibility. To date, costs incurred following the establishment of technological feasibility, but prior to general release, have been insignificant. Stock-based compensation In 1997, the company adopted the disclosure provisions of the Financial Accounting Standards Board (FASB) Statement of Financial Accounting Standards No. 123 (SFAS No. 123), "Accounting for Stock-Based Compensation." The company has elected to continue accounting for stock-based compensation issued to employees using Accounting Principles Board (APB) Opinion No. 25, "Accounting for Stock Issued to Employees," and, accordingly, pro forma disclosures required under SFAS No. 123 have been presented (see note 7). Under APB Opinion No. 25, compensation expense is based on the difference, if any, on the date of the grant, between the fair value of the company's stock and the exercise price. Stock issued to non-employees has been accounted for in accordance with SFAS No. 123 and valued using the Black-Scholes model. Concentration of credit risk Financial instruments that potentially subject the company to a concentration of credit risk consist of cash and cash equivalents and accounts receivable. Cash and cash equivalents are deposited with a Canadian bank. The company maintains allowances for potential credit losses and such losses have been within F-42 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued) management's expectations. There were no customers with a balance due to the company in excess of 10% of aggregate accounts receivable as of December 31, 1998. Comprehensive income Effective for the fiscal years commencing after December 15, 1997, the company adopted the provisions of SFAS No. 130, "Reporting Comprehensive Income." SFAS No. 130 establishes standards for reporting comprehensive income and its components in financial statements. Comprehensive income, as defined, includes all changes in equity during a period from non-owner sources. Use of estimates The preparation of financial statements in accordance with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Fair value of financial instruments Financial instruments are initially recorded at historical cost. If subsequent circumstances indicate that a decline in the fair value is other than temporary, the financial asset is written down to its fair value. Unless otherwise indicated, the fair values of financial instruments approximate their recorded amounts. Foreign currency translation The company's functional currency is the Canadian dollar ("C$"). Assets and liabilities are translated into United States dollars at the exchange rate prevailing at the balance sheet date, and the results of their operations are translated at average exchange rates for the year. The resulting translation adjustments are reflected in the cumulative translation adjustment account. Other exchange gains or losses are included in the statement of operations. Recent accounting pronouncements In June 1998, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards (SFAS) No. 133, "Accounting for Derivative Instruments and Hedging Activities." This statement establishes accounting and reporting standards for derivative instruments and hedging activities and requires companies to recognize all derivatives as either assets or liabilities in the statement of financial position and measures those instruments at fair value. This statement is effective for all fiscal quarters of fiscal years beginning after June 15, 1999. Management does not believe that the implementation of SFAS No. 133 will have any impact on the financial instruments since the company does not engage in derivative or hedging activities. F-43 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued) Note 3: Property and equipment
June 30, 1999 ------------------------------ (unaudited) Accumulated Cost depreciation Net -------- ------------ -------- Computer equipment......................... $119,814 $54,156 $ 65,658 Furniture and fixtures..................... 50,001 6,014 43,987 Office equipment........................... 25,316 9,709 15,607 Leasehold improvements..................... 8,451 1,207 7,244 -------- ------- -------- $203,582 $71,086 $132,496 ======== ======= ======== December 31, 1998 ------------------------------ Accumulated Cost depreciation Net -------- ------------ -------- Computer equipment......................... $ 85,364 $34,104 $ 51,260 Furniture and fixtures..................... 13,387 2,778 10,609 Office equipment........................... 21,979 6,982 14,997 -------- ------- -------- $120,730 $43,864 $ 76,866 ======== ======= ======== December 31, 1997 ------------------------------ Accumulated Cost depreciation Net -------- ------------ -------- Computer equipment......................... $ 54,082 $14,945 $ 39,137 Furniture and fixtures..................... 5,278 1,144 4,134 Office equipment........................... 17,604 3,062 14,542 -------- ------- -------- $ 76,964 $19,151 $ 57,813 ======== ======= ========
Note 4: Promissory notes payable On January 29, 1998, the company received proceeds of C$100,000 in exchange for the issuance of promissory notes and issued 26,667 common share purchase warrants with an exercise price of C$3.75 per common share, which expire in two years. The notes were repaid in 1998. On February 20, 1998, the company received proceeds of C$250,000 in exchange for the issuance of a promissory note and issued 66,667 common share purchase warrants with an exercise price of C$3.75 per common share, which expire in two years. The note was repaid in 1998. The promissory note payable at December 31, 1997 was unsecured, bore interest at 5% per annum and was payable to one of the directors of the company, who is also a stockholder. The note was repaid in 1998. Note 5: Stockholder's loan payable The stockholder's loan payable was unsecured, non-interest bearing and due on demand. The note was repaid in 1998. Note 6: Convertible debentures The convertible debentures are unsecured, non-interest bearing and convertible at the lender's option into 104,515 common shares at the rate of C$2.392 per share, maturing on September 5, 2000. They are due to directors and stockholders of the company. F-44 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued) Note 7: Capital stock Authorized and issued share capital The authorized share capital consists of an unlimited number of common shares and 1,625,000 Class A preference shares, issuable in series. By certificate of amalgamation dated February 5, 1997, INEX Corporation and Ack-Sys Inc. amalgamated to form INEX Corporation and the shareholdings were reorganized as follows: . 1,000,000 common shares of Ack-Sys Inc. were converted into 100,000 common shares of the amalgamated INEX Corporation; . 900,000 common shares of INEX Corporation were converted into 900,000 common shares of the amalgamated INEX Corporation; . 100,000 common shares of INEX Corporation held by Ack-Sys Inc. were cancelled; and . 44,959 Class A special shares of INEX Corporation were converted into 44,959 Class A special shares of the amalgamated INEX Corporation. Class A special shares As a result of passing a special resolution on June 19, 1997, Class A special shares were converted on a one-for-one basis for common shares on October 16, 1997. The company cancelled the authorized Class A special shares, Class B special shares and Class C special shares. Class A preference shares During 1998, 240,271 Class A preference shares, Series 1 were issued for gross cash proceeds of $1 million. These shares are convertible into common shares at a rate of C$5.91 per share and retractable on April 3, 2003 at the issue price. Special warrants, Series A During 1998, 250,000 special warrants, Series A were issued for net cash proceeds of $1,135,213. When exercised, each special warrant will convert into one common share for no additional consideration. The special warrants become exercisable at the earlier date of five days after a receipt is issued for a final prospectus by a securities regulator and April 28, 2000. F-45 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued) Common share purchase warrants and brokers warrants
Years ended Six months December 31, ended ---------------- June 30, 1997 1998 1999 ------- -------- ----------- (unaudited) Issued: Common share purchase warrants issued in connection with common shares exchangeable for one common share for additional consideration of C$2.392 per common share, expiring April 1998....................... 104,515 -- -- Brokers warrants issued in connection with the common share and common share purchase warrants issued, exchangeable for one common share for additional consideration of C$2.392, expiring April 1998........... 5,226 -- -- Common share purchase warrants issued in connection with common shares issued, exchangeable for one common share for additional consideration of C$2.392 per common share, expiring July 1998.......... 62,709 -- -- Brokers warrants issued in connection with common shares issued, exchangeable for one common share for additional consideration of C$3.06, expiring October 1998.......... 6,943 -- -- Common share purchase warrants issued in connection with the issue of promissory notes exchangeable for one common share for additional consideration of C$3.75 per common share, expiring January 2000....... -- 26,667 -- Common share purchase warrants issued in connection with the issue of a promissory note exchangeable for one common share for additional consideration of C$3.75 per common share, expiring February 2000...... -- 66,667 -- Brokers warrants issued in connection with the issued special warrants, Series A, exchangeable for one common share for additional consideration of C$8.00 per common share, 137,500 expiring April 2000 and 137,500 expiring June 2000............ -- 275,000 -- Brokers warrants issued in connection with the issue of Class A preference shares, exchangeable for one common share for additional consideration of C$5.91 per common share, expiring April 2001......... -- 14,416 -- Broker warrants issued in connection with the issue of special warrants, Series B, exchangeable for one common share for additional consideration of C$8.00 per common share, expiring January 2002....... -- -- 50,080 ------- -------- ------- 179,393 382,750 50,080 ------- -------- ------- Exercised: At C$2.392 per common share................ -- (172,449) -- At C$3.06 per common share................. -- (6,943) -- Expired...................................... -- (1) -- ------- -------- ------- -- (179,393) -- ------- -------- ------- Balance--Beginning of period................. -- 179,393 382,750 ------- -------- ------- Balance--End of period....................... 179,393 382,750 432,830 ======= ======== =======
F-46 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued) The fair value of the 382,750 (1997--179,393) warrants issued is $663,594 (1997--$84,648), of which $503,217 (1997--$84,648) has been recorded as a cost of issue and $160,377 (1997--$nil) as interest expense. The fair value of each warrant issued to non-employees is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted-average assumptions: dividend yield-nil, risk-free interest rate - 4.8%, expected volatility - 65%, expected life - 1.5 years. Subsequent to year-end, in connection with the issue of special warrants, Series B, the company issued 50,080 brokers warrants exchangeable into common shares for additional consideration of C$8.00 per common share, expiring in January 2002. The company has committed to issue an additional 149,920 broker warrants if certain levels of additional financing are obtained or if the company is sold for proceeds in excess of a predetermined amount. Stock Option Plan The company established a Stock Option Plan in April 1997 under which 400,000 shares of common stock were reserved for issuance. During 1998, the company amended the 1997 Plan and increased the number of shares of common stock reserved under the 1997 Plan by 75,000 shares to 475,000 shares. Under the Stock Option Plan, options can be issued to employees, officers, directors and other key contributors of the company at an exercise price determined by the Board of Directors. On June 30, 1998, the exercise price of outstanding options to senior management was amended to C$0.01 per option, creating deferred stock- based compensation of $1,126,318, which will be amortized over the remaining vesting period of the options. Vesting and expiry provisions are determined by the Board of Directors. Generally, options issued to employees vest over three years and expire after five years. Option activity under the Stock Option Plan is as follows:
Weighted Options Options average Authorized outstanding exercise price ---------- ----------- -------------- C$ Options authorized................... 400,000 -- Options granted...................... -- 382,645 0.24 Options exercised.................... -- (3,200) 0.01 Options cancelled.................... -- (4,000) ------- -------- Balance--December 31, 1997........... 400,000 375,445 0.24 Options authorized................... 75,000 -- Options granted...................... -- 88,599 5.87 Options exercised.................... -- (227,810) 0.02 Options cancelled.................... -- (43,067) 0.16 ------- -------- Balance--December 31, 1998........... 475,000 193,167 3.02 ======= ========
F-47 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued)
Options outstanding -------------------------------------------- Weighted- Number Number average vested and outstanding at remaining exercisable at Exercise December 31, contractual December 31, price 1998 life 1998 -------- -------------- ----------- -------------- C$ (years) $0.01 77,666 1.3 4,066 $7.70 10,000 2.4 10,000 $5.91 34,000 2.7 10,000 $2.50 27,000 3.2 9,000 $3.06 20,001 3.9 1,999 $6.50 2,000 4.4 -- $7.00 12,000 4.7 -- $7.50 10,500 4.8 -- ------- ------ 193,167 35,065 ======= ======
Options granted for marketing services rendered The company recorded an expense of $2,349 (1997--$26,039; 1996--$nil) in connection with options granted for marketing services rendered. SFAS 123 The company applies APB Opinion No. 25, Accounting for Stock Issued to Employees, and related interpretations in accounting for its stock option plan, which are described below. Had compensation cost for the company's stock option plans been determined based on the fair market value at the grant dates for awards under the Plan consistent with the method provided by SFAS No. 123, Accounting for Stock-Based Compensation, the company's net loss would have been increased to the following pro forma amounts for the periods ended December 31, 1997 and 1998:
1997 1998 ----------- ----------- Net loss--as reported................................ $(1,232,225) $(2,762,245) Net loss--pro forma.................................. (1,265,067) (2,900,154) Basic and fully diluted loss per share--pro forma.... (0.98) (1.65)
The fair value of each option issued to employees is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted- average assumptions: dividend yield--nil, risk-free interest rate--4.9%, expected volatility--0%, expected life--2 years. Net loss per share The company computes net loss per share in accordance with SFAS No. 128, "Earnings per Share." Under the provisions of SFAS No. 128, basic net loss per share is computed by dividing the net loss available to common stockholders for the period by the weighted average number of common shares outstanding during the period. Diluted net loss per share is computed by dividing the net loss for the period by the weighted average number of common shares and common equivalent shares outstanding during the period. Common equivalent shares, composed of incremental common shares issuable upon the exercise of stock options and warrants and upon conversion of Class A preference shares, convertible debentures and special warrants, Series A, are included in the diluted net loss per share computation to the extent such shares are dilutive. F-48 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued) Note 8: Income taxes The company did not incur any income taxes for the years ended December 31, 1996, 1997 and 1998 as a result of operating losses. The company has approximately $2,805,000 of non-capital losses available to reduce future years' taxable income that expire as follows: 2002............................................................ $ 20,000 2003............................................................ 184,000 2004............................................................ 993,000 2005............................................................ 1,608,000 ---------- $2,805,000 ==========
Significant components of the company's deferred taxes as of December 31, 1996, 1997 and 1998 are as follows:
1996 1997 1998 -------- --------- ----------- Deferred tax assets Tax loss carry-forwards................ $ 9,000 $ 571,000 $ 1,241,000 Other timing differences............... 2,000 2,000 14,000 -------- --------- ----------- Net deferred tax assets................ 11,000 573,000 1,255,000 Valuation allowance.................... (11,000) (573,000) (1,255,000) -------- --------- ----------- Net deferred tax assets................ $ -- $ -- $ -- ======== ========= ===========
The company has established valuation allowances equal to the net deferred tax assets due to uncertainties regarding the realization of deferred tax assets based on the company's lack of earnings history. The company's provisions for income taxes differs from the expected tax benefit amounts computed by applying the statutory income tax rate of 44.62% to income before income taxes primarily as a result of the valuation allowances. Note 9: Related party transactions During the year, the company paid marketing costs of $10,478 (1997--$91,643; 1996--$3,520) to a company owned by a stockholder of the company. Note 10: Commitments The company has entered into various operating leases for equipment, services, and premises requiring minimum annual payments as follows: 1999.............................................................. $189,000 2000.............................................................. 146,000 2001.............................................................. 44,000 Thereafter........................................................ --
F-49 INEX CORPORATION NOTES TO FINANCIAL STATEMENTS--(Continued) Note 11: Business segments SFAS No. 131 requires companies to report financial and other information about key revenue segments of the entity for which such information is available and is utilized by the chief operating decision maker. SFAS No. 131 is effective for fiscal years commencing after December 15, 1997. The company conducts its business within one business segment primarily within North America. Revenues from customers outside of North America were less than 10% of net revenues for all periods presented in the accompanying statements of operations. No customer represented more than 10% of net revenues for any year presented. Note 12: Subsequent events On February 11, 1999, the company issued 360,000 special warrants, Series B for net cash proceeds of $1.9 million. When exercised, each special warrant, Series B will convert into one common share and one common share purchase warrant for no additional consideration. The special warrants, Series B become exercisable at the earlier date of five days after a receipt is issued for a final prospectus by a securities regulator and July 31, 2000. Each common share purchase warrant entitles the holder to purchase one common share for C$8.00 on or before July 31, 2000. On August 13, 1999, the company entered into an agreement and plan of acquisition and arrangement with InfoSpace.com, Inc. (InfoSpace). Upon closing, which is expected to occur in September 1999, the company will become a wholly- owned subsidiary of InfoSpace. F-50 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 13. Other Expenses of Issuance and Distribution The following table sets forth the costs and expenses payable by the registrant in connection with the sale of the Common Stock being registered hereby. All amounts shown are estimates, except the Securities and Exchange Commission registration fee, and the Nasdaq National Market listing fee. Securities and Exchange Commission registration fee................ $ 9,221 Nasdaq National Market listing fee................................. 17,500 Printing and engraving expenses.................................... 5,000 Legal fees and expenses............................................ 50,000 Accounting fees and expenses....................................... 25,000 Miscellaneous expenses............................................. 18,279 -------- Total............................................................ $125,000 ========
Item 14. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law (the "DGCL") provides that a corporation may indemnify directors and officers, as well as other employees and individuals, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation--a "derivative action"), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation's charter, bylaws, disinterested director vote, stockholder vote, agreement or otherwise. Section 10 of the registrant's Restated Bylaws (Exhibit 3.2 hereto) requires indemnification to the full extent permitted under the DGCL as it now exists or may hereafter be amended. Subject to any restrictions imposed by the DGCL, the Restated Bylaws provide an unconditional right to indemnification for all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) actually and reasonably incurred or suffered by any person in connection with any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that such person is or was serving as a director or officer of the registrant or that, being or having been a director or officer of the registrant, such person is or was serving at the request of the registrant as a director, officer, employee or agent of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan. The Restated Bylaws also provide that the registrant may, by action of its Board of Directors, provide indemnification to its employees and agents with the same scope and effect as the foregoing indemnification of directors and officers; provided, however, that an undertaking shall be made by an employee or agent only if required by the Board of Directors. Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary II-1 damages for breach of fiduciary duty as a director, except for liability for (i) any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) payments of unlawful dividends or unlawful stock repurchases or redemptions, or (iv) any transaction from which the director derived an improper personal benefit. Article 10 of the registrant's Restated Certificate of Incorporation (Exhibit 3.1 hereto) provides that to the full extent that the DGCL, as it now exists or may hereafter be amended, permits the limitation or elimination of the liability of directors, a director of the registrant shall not be liable to the registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. Any amendment to or repeal of such Article 10 shall not adversely affect any right or protection of a director of the registrant for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. The registrant has entered into certain indemnification agreements with its officers and directors, the form of which is attached as Exhibit 10.1 to this Registration Statement and incorporated herein by reference. The indemnification agreements provide the registrant's officers and directors with indemnification to the maximum extent permitted by the DGCL. Reference is made to the Underwriting Agreement (Exhibit 1.1 hereto), in which the Underwriters have agreed to indemnify the officers and directors of the registrant against certain liabilities. Item 15. Recent Sales of Unregistered Securities Since its incorporation in April 1996, the registrant has issued and sold unregistered securities as follows: (1) An aggregate of 20,000,000 shares of common stock was issued in a private placement in April 1996 to Naveen Jain. The aggregate consideration received for such shares was $2,000. (2) An aggregate of 534,632 shares of common stock was issued in a private placement on June 10, 1996, to three investors. The aggregate consideration received for such shares was $219,199.94 or $0.41 per share. (3) An aggregate of 1,219,512 shares of common stock was issued in a private placement on June 17, 1996, to three investors. The aggregate consideration received for such shares was $999,999.84 or $0.82 per share. (4) An aggregate of 136,364 shares of common stock was issued in a private placement on October 7, 1996, to one investor. The aggregate consideration received for such shares was $150,000.40 or $1.10 per share. (5) An aggregate of 2,000,000 shares of common stock was issued on May 6, 1997, in connection with the registrant's acquisition of all the issued and outstanding membership interests in Yellow Pages on the Internet, LLC ("YPI"). Such shares were placed in an escrow account upon issuance pending finalization of the purchase price for YPI. Prior to December 31, 1997, the purchase price was finalized and on January 2, 1998 an aggregate of 170,000 shares of common stock was issued to the former members of YPI. The remaining 1,830 shares held in the escrow account were released to the registrant and canceled. (6) An aggregate of 55,000 shares of common stock was issued in a private placement on February 4, 1998 to one investor. The aggregate consideration received for such shares was $110,000 or $2.00 per share. (7) An aggregate of 25,000 shares of common stock was issued on April 20, 1998 to a former employee of the registrant in connection with the settlement of a dispute involving compensation. (8) An aggregate of 15,000 shares of common stock was issued in a private placement on May 4, 1998 to the law firm of Garvey Schubert & Barer in consideration for legal services rendered. II-2 (9) An aggregate of 250,000 shares of common stock was issued in a private placement on May 21, 1998 to two investors. The aggregate consideration was $500,000 or $2.00 per share. (10) An aggregate of 2,290,000 shares of common stock and warrants for the purchase of 4,057,046 shares of common stock at a weighted average exercise price of $2.94 per share were issued in a private placement on May 21, 1998 to five investors pursuant to common stock and common stock Warrant Purchase Agreements (the "May 1998 Stock Purchase"). The aggregate consideration received for such shares was $4,580,000 and the aggregate consideration received for such warrants was $40,570.38. (11) An aggregate of 2,999,976 shares of common stock was issued on June 2, 1998, in exchange for the entire issued share capital of Outpost Network, Inc. ("Outpost"). The form of the transaction was a merger, whereby a wholly owned subsidiary of the registrant was merged with and into Outpost (the "Outpost Merger"). The recipients of the common stock were the former shareholders of Outpost. (12) An aggregate of 10,000 shares of common stock was issued on June 30, 1998 to a consultant in exchange for services. (13) An aggregate of 446,502 shares of common stock was issued on July 6, 1998 to nineteen investors pursuant to the registrant's 1998 Stock Purchase Rights Plan, adopted June 26, 1998. The aggregate consideration received for such shares was $1,674,393.75 or $3.75 per share. (14) A warrant for the purchase of 955,934 shares of common stock with an exercise price of $0.01 per share was issued on July 14, 1998, to a former consultant to the registrant in connection with the Outpost Merger. (15) An aggregate of 2,040,000 shares of common stock was issued in a private placement completed in July and August 1998 to 26 investors. The aggregate consideration received for such shares was $8,160,000 or $4.00 per share. (16) An aggregate of 39,790 shares of common stock and warrants to purchase 70,626 shares of common stock with a weighted average exercise price of $2.94 per share were issued on August 6, 1998 to five investors in connection with the May 1998 Stock Purchase. (17) Warrants to purchase up to 1,979,832 shares of common stock at an exercise price of $6.00 per share were issued on August 24, 1998 to a strategic partner. (18) An option to purchase 500,000 shares of common stock at an exercise price of $7.00 per share was exercised by a former consultant on October 28, 1998. (19) On March 22, 1999, the registrant issued 432,454 shares of common stock upon the net exercise of warrants by an investor at a weighted average exercise price of $2.94 per share. The warrants were issued on May 21,1998 and August 6, 1998 in connection with the May 1998 Stock Purchase. (20) From April 1996 through June 30, 1999, the registrant granted stock options to purchase an aggregate of 6,354,156 shares of common stock to employees, consultants and directors with exercise prices ranging from $.01-$67.44 per share pursuant to the registrant's Restated 1996 Flexible Stock Incentive Plan in consideration for services. From April 10, 1996 to December 31, 1998, the registrant also granted stock options outside of the plan to purchase 1,009,210 shares of common stock, with a weighted average exercise price of $1.00 per share, to employees, consultants and directors. No underwriters were used in connection with these sales and issuances. The sales and issuances of these securities were exempt from registration under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Rule 701 promulgated thereunder on the basis that these options were offered and sold either pursuant to a written compensatory benefit plan or pursuant to written contracts relating to consideration, as provided by Rule 701, or pursuant to Section 4(2) thereof on the basis that the transactions did not involve a public offering. II-3 Item 16. Exhibits and Financial Statement Schedules (a) Exhibits
Number Description ------ ----------- 2.1* Agreement and Plan of Merger, dated as of May 12, 1998, among the registrant, Outpost Network, Inc., certain shareholders of Outpost Network, Inc. and Outpost Acquisition, Inc. 2.2. Agreement and Plan of Acquisition and Arrangement, dated as of August 13, 1999, among the registrant and INEX Corporation. 3.1.* Restated Certificate of Incorporation of the registrant. 3.2.* Restated Bylaws of the registrant. 4.1. Form of Certificate of the Powers, Designations, Preferences and Rights of Series A Preferred Stock. 5.1. Opinion of Wilson Sonsini Goodrich & Rosati, P.C. as to the legality of the shares. 10.1.* Form of Indemnification Agreement between the registrant and each of its Directors and Executive Officers. 10.2.+ Restated 1996 Flexible Stock Incentive Plan and Terms of Stock Option Grant Program for Nonemployee Directors under the Restated 1996 Flexible Stock Incentive Plan. 10.3.* 1998 Employee Stock Purchase Plan 10.4.* Lease, dated May 14, 1998, between the registrant and TIAA Realty, Inc. 10.5.* Registration Rights Agreement, dated May 1, 1997, among the registrant, John E. Richards, Peter S. Richards, John Enger and Alexander Hutton Capital L.L.C., as subsequently amended by Agreement dated as of January 2, 1998, among the registrant, John E. Richards, Peter S. Richards, John Enger and Alexander Hutton Capital L.L.C. 10.6.* Agreement, dated January 2, 1998, among the registrant, John E. Richards, Peter S. Richards, John Enger and Alexander Hutton Capital, L.L.C. 10.7.* Form of Common Stock and Common Stock Warrant Purchase Agreements, dated May 21, 1998, between the registrant and each of Acorn Ventures- IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.8.* Form of Investor Rights Agreements, dated as of May 21, 1998, between the registrant and each of Acorn Ventures-IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.9.* Form of Co-Sale Agreements, dated as of May 21, 1998, among the registrant, Naveen Jain and each of Acorn Ventures-IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.10.* Form of Common Stock Warrant, dated May 21, 1998, between the registrant and each of Acorn Ventures-IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.11.* Common Stock Purchase Agreement, dated as of August 6, 1998, by and among the registrant and the investors named therein. 10.12.* Stockholder Rights Agreement, dated as of August 6, 1998, by and among the registrant and the investors named therein. 10.13.* Form of Amendment to Common Stock and Common Stock Warrant Purchase Agreements, dated August 6, 1998, between the Registrant and each of Acorn Ventures-IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.14.* License Agreement, dated July 28, 1998, between the registrant and American Business Information, Inc. (now known as infoUSA, Inc.).
II-4
Number Description ------ ----------- 10.15.* Amended and Restated Content Provider Agreement, made as of August 24, 1998, effective as of April 25, 1998, between the registrant and 800- U.S. Search. 10.16.* Interactive White Pages Marketing Agreement, dated as of August 24, 1998, between the registrant and America Online, Inc. 10.17.* Development and Management Agreement, dated as of August 24, 1998, between the registrant and America Online, Inc. 10.18.* Letter Agreement with Bernee D. L. Strom, dated November 22, 1998. 10.19.* Indemnification Agreement dated as of December 11, 1998 between the registrant, Naveen Jain, and all the current and future members of the registrant's board of directors (excluding Mr. Jain). 21.1. Subsidiaries of the registrant. 23.1. Consent of Deloitte & Touche LLP, Independent Auditors. 23.2. Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.3. Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in the opinion filed as Exhibit 5.1 hereto). 24.1. Power of Attorney (contained on signature page hereto). 99.1. Form of Plan of Arrangement under Section 182 of the Business Corporations Act (Ontario) of INEX Corporation. 99.2. Form of Voting and Exchange Trust Agreement among the Company, InfoSpace.com Canada Holdings Inc., and Montreal Trust Company of Canada, as trustee. 99.3. Form of Exchangeable Share Support Agreement among the Company, InfoSpace.com Nova Scotia Company, InfoSpace.com Canada Holdings Inc. and Montreal Trust Company of Canada, as trustee.
- -------- * Incorporated by reference to the Registration Statement on Form S-1 (No. 333- 62323) filed by the registrant on August 27, 1998, as amended. + Incorporated by reference to the Registration Statement on Form S-8 (No. 333- 81593) filed by the registrant on June 25, 1999. (b) Financial Statement Schedules All schedules are omitted because they are inapplicable or the requested information is shown in the consolidated financial statements of the registrant or related notes thereto. Item 17. Undertakings The undersigned registrant hereby undertakes; (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of II-5 securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) ((S)230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Redmond, State of Washington, on the 1st day of September, 1999. InfoSpace.com, Inc. /s/ Ellen B. Alben By: _________________________________ Ellen B. Alben, Vice President, Business and Legal Affairs SIGNATURES AND POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Bernee D.L. Strom and Ellen B. Alben and each of them, his or her attorneys-in-fact, each with the power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated below on the 1st day of September, 1999.
Signature Title --------- ----- /s/ Naveen Jain Chief Executive Officer and Chairman of the ___________________________________________ Board (Principal Executive Officer) Naveen Jain /s/ Douglas A. Bevis Vice President and Chief Financial Officer ___________________________________________ (Principal Financial Officer) Douglas A. Bevis /s/ Tammy D. Halstead Vice President and Chief Accounting Officer ___________________________________________ (Principal Accounting Officer) Tammy D. Halstead /s/ John E. Cunningham, IV Director ___________________________________________ John E. Cunningham, IV /s/ Peter L. S. Currie Director ___________________________________________ Peter L. S. Currie
II-7
Signature Title --------- ----- /s/ Gary C. List Director ___________________________________________ Gary C. List /s/ Rufus W. Lumry, III Director ___________________________________________ Rufus W. Lumry, III /s/ Carl Stork Director ___________________________________________ Carl Stork /s/ Bernee D. L. Strom Director ___________________________________________ Bernee D. L. Strom
II-8 EXHIBIT INDEX
Number Description ------ ----------- 2.1* Agreement and Plan of Merger, dated as of May 12, 1998, among the registrant, Outpost Network, Inc., certain shareholders of Outpost Network, Inc. and Outpost Acquisition, Inc. 2.2. Agreement and Plan of Acquisition and Arrangement, dated as of August 13, 1999, by and between the registrant and INEX Corporation. 3.1.* Restated Certificate of Incorporation of the registrant. 3.2.* Restated Bylaws of the registrant. 4.1. Form of Certificate of the Powers, Designations, Preferences and Rights of Series A Preferred Stock. 5.1. Opinion of Wilson Sonsini Goodrich & Rosati, P.C. as to the legality of the shares. 10.1.* Form of Indemnification Agreement between the registrant and each of its Directors and Executive Officers. 10.2.+ Restated 1996 Flexible Stock Incentive Plan and Terms of Stock Option Grant Program for Nonemployee Directors under the Restated 1996 Flexible Stock Incentive Plan. 10.3.* 1998 Employee Stock Purchase Plan 10.4.* Lease, dated May 14, 1998, between the registrant and TIAA Realty, Inc. 10.5.* Registration Rights Agreement, dated May 1, 1997, among the registrant, John E. Richards, Peter S. Richards, John Enger and Alexander Hutton Capital L.L.C., as subsequently amended by Agreement dated as of January 2, 1998, among the registrant, John E. Richards, Peter S. Richards, John Enger and Alexander Hutton Capital L.L.C. 10.6.* Agreement, dated January 2, 1998, among the registrant, John E. Richards, Peter S. Richards, John Enger and Alexander Hutton Capital, L.L.C. 10.7.* Form of Common Stock and Common Stock Warrant Purchase Agreements, dated May 21, 1998, between the registrant and each of Acorn Ventures- IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.8.* Form of Investor Rights Agreements, dated as of May 21, 1998, between the registrant and each of Acorn Ventures-IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.9.* Form of Co-Sale Agreements, dated as of May 21, 1998, among the registrant, Naveen Jain and each of Acorn Ventures-IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.10.* Form of Common Stock Warrant, dated May 21, 1998, between the registrant and each of Acorn Ventures-IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.11.* Common Stock Purchase Agreement, dated as of August 6, 1998, by and among the registrant and the investors named therein. 10.12.* Stockholder Rights Agreement, dated as of August 6, 1998, by and among the registrant and the investors named therein. 10.13.* Form of Amendment to Common Stock and Common Stock Warrant Purchase Agreements, dated August 6, 1998, between the Registrant and each of Acorn Ventures-IS, LLC, Kellett Partners, LLP and John and Carolyn Cunningham. 10.14.* License Agreement, dated July 28, 1998, between the registrant and American Business Information, Inc. (now known as infoUSA, Inc.). 10.15.* Amended and Restated Content Provider Agreement, made as of August 24, 1998, effective as of April 25, 1998, between the registrant and 800- U.S. Search. 10.16.* Interactive White Pages Marketing Agreement, dated as of August 24, 1998, between the registrant and America Online, Inc.
Number Description ------ ----------- 10.17.* Development and Management Agreement, dated as of August 24, 1998, between the registrant and America Online, Inc. 10.18.* Letter Agreement with Bernee D. L. Strom, dated November 22, 1998. 10.19.* Indemnification Agreement dated as of December 11, 1998 between the registrant, Naveen Jain, and all the current and future members of the registrant's board of directors (excluding Mr. Jain). 21.1. Subsidiaries of the registrant. 23.1. Consent of Deloitte & Touche LLP, Independent Auditors. 23.2. Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.3. Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in the opinion filed as Exhibit 5.1 hereto). 24.1. Power of Attorney (contained on signature page hereto). 99.1. Form of Plan of Arrangement under Section 182 of the Business Corporations Act (Ontario) of INEX Corporation. 99.2. Form of Voting and Exchange Trust Agreement among the Company, InfoSpace.com Canada Holdings Inc., and Montreal Trust Company of Canada, as trustee. 99.3. Form of Exchangeable Share Support Agreement among the Company, InfoSpace.com Nova Scotia Company, InfoSpace.com Canada Holdings Inc. and Montreal Trust Company of Canada, as trustee.
- -------- * Incorporated by reference to the Registration Statement on Form S-1 (No. 333- 62323) filed by the registrant on August 27, 1998, as amended. + Incorporated by reference to the Registration Statement on Form S-8 (No. 333- 81593) filed by the registrant on June 25, 1999. EX-2.2 2 AGREEMENT AND PLAN OF ACQUISITION AND AGMT EXHIBIT 2.2 AGREEMENT AND PLAN OF ACQUISITION AND ARRANGEMENT by and between INFOSPACE.COM, INC. and INEX CORPORATION Dated as of August 13, 1999 TABLE OF CONTENTS
Page 1. Definitions........................................................................................... 2 2. The Transactions...................................................................................... 9 2.1 Description of the Transactions................................................................. 9 2.2 Closing......................................................................................... 11 2.3 Accounting Consequences......................................................................... 11 2.4 Adjustments to Exchange Ratio................................................................... 11 2.5 Tax Treatment................................................................................... 11 3. Representations and Warranties of the Company......................................................... 11 3.1 Organization and Good Standing.................................................................. 11 3.2 Authority; No Conflict.......................................................................... 12 3.3 Capitalization.................................................................................. 13 3.4 Financial Statements............................................................................ 13 3.5 Books and Records............................................................................... 14 3.6 Title to Properties; Encumbrances............................................................... 14 3.7 Condition and Sufficiency of Assets............................................................. 15 3.8 Accounts Receivable............................................................................. 15 3.9 No Undisclosed Liabilities...................................................................... 15 3.10 Taxes........................................................................................... 15 3.11 No Material Adverse Change...................................................................... 16 3.12 Employee Matters and Benefit Plans.............................................................. 17 3.13 Compliance with Legal Requirements; Governmental Authorizations................................. 18 3.14 Legal Proceedings; Orders....................................................................... 19 3.15 Absence of Certain Changes and Events........................................................... 20 3.16 Contracts; No Defaults.......................................................................... 21 3.17 Insurance....................................................................................... 23 3.18 Environmental and Product Matters............................................................... 24 3.19 Intellectual Property........................................................................... 25 3.20 Certain Payments................................................................................ 29 3.21 Disclosure...................................................................................... 29 3.22 Relationships with Related Persons.............................................................. 29 3.23 Brokers or Finders.............................................................................. 29 3.24 Customers....................................................................................... 30 3.25 Authenticity and Entirety of Documents.......................................................... 30 3.26 Shareholder Approval............................................................................ 30 3.27 Sales and Assets in the United States........................................................... 30 3.28 Fairness Opinion................................................................................ 30 4. Representations and Warranties of Parent.............................................................. 30 4.1 Organization and Good Standing.................................................................. 30
TABLE OF CONTENTS (continued)
Page ---- 4.2 Authority; No Conflict.......................................................................... 31 4.3 Capitalization.................................................................................. 31 4.4 Certain Proceedings............................................................................. 32 4.5 SEC Documents................................................................................... 32 4.6 Brokers or Finders.............................................................................. 33 4.7 Suspension and Trading.......................................................................... 33 4.8 NASDAQ Listing.................................................................................. 33 4.9 Prospectus Exemptions........................................................................... 33 4.10 No Material Adverse Change...................................................................... 33 4.11 Pooling......................................................................................... 34 5. Covenants of the Company.............................................................................. 34 5.1 Access and Investigation........................................................................ 34 5.2 Operation of the Businesses of the Company...................................................... 34 5.3 Negative Covenant............................................................................... 34 5.4 Required Approvals.............................................................................. 34 5.5 Notification.................................................................................... 35 5.6 Payment of Indebtedness by Related Persons...................................................... 35 5.7 Covenants Regarding Non-Solicitation............................................................ 35 5.8 Notice by the Company of Superior Proposal Determination; Acquisition Proposal Acceptance....... 36 5.9 Best Efforts.................................................................................... 37 5.10 Moral Rights.................................................................................... 37 5.11 Shareholder Approval............................................................................ 37 6. Covenants of Parent................................................................................... 37 6.1 Approvals of Governmental Bodies................................................................ 37 6.2 Best Efforts.................................................................................... 38 6.3 SEC Filings..................................................................................... 38 6.4 Negative Covenant............................................................................... 38 6.5 Notification.................................................................................... 38 6.6 Payment of Professional Fees.................................................................... 38 6.7 Support Agreement and Voting and Exchange Trust Agreement....................................... 39 6.8 Registration Statement; Form S-8 Registration Statement......................................... 39 6.9 Release of Operating Results.................................................................... 42 6.10 Canadian Securities Compliance.................................................................. 42 7. Conditions Precedent to Parent's Obligation to Close.................................................. 43 7.1 Accuracy of Representations..................................................................... 43 7.2 The Company's Performance....................................................................... 43
TABLE OF CONTENTS (continued)
Page ---- 7.3 Consents....................................................................................... 43 7.4 Additional Documents........................................................................... 43 7.5 No Proceedings................................................................................. 44 7.6 No Claim Regarding Stock Ownership or Sale Proceeds............................................ 44 7.7 No Prohibition................................................................................. 44 7.8 Shareholder Approval........................................................................... 45 7.9 Canadian Approvals............................................................................. 45 7.10 Nasdaq Listing................................................................................. 45 7.11 Dissent Rights................................................................................. 45 7.12 Court Approval................................................................................. 45 7.13 Effectiveness of Registration Statement........................................................ 45 8. Conditions Precedent to the Company's Obligation to Close............................................ 45 8.1 Accuracy of Representations.................................................................... 46 8.2 Parent's Performance........................................................................... 46 8.3 Consents....................................................................................... 46 8.4 Additional Documents........................................................................... 46 8.5 No Proceedings................................................................................. 47 8.6 No Injunction.................................................................................. 47 8.7 Shareholder Approval........................................................................... 47 8.8 Canadian Approvals............................................................................. 47 8.9 Nasdaq Listing................................................................................. 47 8.10 Court Approval................................................................................. 47 8.11 Effectiveness of Registration Statement........................................................ 47 9. Termination.......................................................................................... 48 9.1 Termination Events............................................................................. 48 9.2 Effect of Termination.......................................................................... 48 10. Escrow Fund.......................................................................................... 49 10.1 Escrow Shares.................................................................................. 49 10.2 Damage Threshold............................................................................... 50 10.3 Escrow Period.................................................................................. 50 10.4 Claims upon Escrow Fund........................................................................ 50 10.5 Objections to Claims........................................................................... 51 10.6 Resolution of Conflicts; Arbitration........................................................... 51 10.7 Company Agent.................................................................................. 52 10.8 Actions of the Company Agent................................................................... 52 10.9 Third-Party Claims............................................................................. 53 11. General Provisions................................................................................... 53
TABLE OF CONTENTS (continued)
Page ---- 11.1 Expenses and Liability........................................................................ 53 11.2 Public Announcements.......................................................................... 54 11.3 Confidentiality............................................................................... 54 11.4 Notices....................................................................................... 54 11.5 Jurisdiction; Service of Process.............................................................. 55 11.6 Further Assurances............................................................................ 55 11.7 Waiver........................................................................................ 56 11.8 Entire Agreement and Modification............................................................. 56 11.9 Disclosure Letter............................................................................. 56 11.10 Assignments, Successors, and No Third-Party Rights............................................ 56 11.11 Severability.................................................................................. 57 11.12 Section Headings, Construction................................................................ 57 11.13 Time of Essence............................................................................... 57 11.14 Governing Law................................................................................. 57 11.15 Counterparts.................................................................................. 57
AGREEMENT AND PLAN OF ACQUISITION AND ARRANGEMENT This Agreement and Plan of Acquisition and Arrangement, dated as of August 13, 1999 (the "Agreement"), is entered into by and between InfoSpace.com, Inc., --------- a Delaware corporation ("Parent") and INEX Corporation, an Ontario company (the "Company"). ------- Witnesseth: "Whereas the Boards of Directors of Parent and the Company have each determined that it is advisable and in the best interests of their respective shareholders for Parent to acquire control of the Company through a statutory arrangement involving the exchange of all of the issued and outstanding shares of the Company for shares in Parent or an indirect wholly owned subsidiary of Parent (the "Acquisition Sub") upon the terms and conditions set forth herein --------------- (the "Arrangement"); ----------- Whereas, as contemplated herein, Parent shall incorporate an unlimited liability company in Nova Scotia (the "ULC") which shall in turn incorporate the --- Acquisition Sub under the Business Corporations Act (Ontario); Whereas application will be made to the Ontario Superior Court pursuant to the Business Corporations Act (Ontario) for an interim order and directions and a final order with respect to a plan of arrangement (the "Plan of Arrangement") ------------------- substantially in the form of the plan of arrangement annexed hereto as Exhibit ------- A; - - Whereas upon receipt of a final order of the Superior Court of Ontario approving the Plan of Arrangement, articles of arrangement substantially in the form annexed hereto as Exhibit B (the "Articles of Arrangement") shall be filed --------- ----------------------- with the Ministry of Consumer and Commercial Relations for the Province of Ontario giving effect to the Arrangement and the share exchange; Whereas pursuant to the Plan of Arrangement, once approved, the preference shareholders of the Company shall exchange their Shares for common shares in the capital of Parent and the common shareholders shall have the option of exchanging their Shares for common shares in the capital of Parent or exchangeable shares in the capital of Acquisition Sub (the "Exchangeable ------------ Shares"); Whereas as contemplated by the Plan of Arrangement and pursuant to the terms of the Exchangeable Shares, and pursuant to the Support Agreement and the Voting and Exchange Trust Agreement (each as defined herein) by and between Parent, the Acquisition Sub and the trustee for holders of Exchangeable Shares (and the ULC in the case of the Voting and Exchange Trust Agreement), the Exchangeable Shares shall be exchangeable by the holders for shares of Common Stock, $0.0001 par value per share in the capital of Parent (the "Parent Common ------------- Shares") on a one-for-one basis at any time on or before a date eleven years - ------ after the Effective Time (as defined herein); Whereas at the Effective Time, Parent shall assume each of the then outstanding Options and pursuant to their respective terms, each such Option shall become a warrant, convertible debenture or option to purchase Parent Common Shares; and Whereas for accounting purposes it is intended that the Transaction (as defined in Section 2.1 hereof) shall be accounted for by Parent as a pooling of interests under U.S. generally accepted accounting principles. AGREEMENT The parties, intending to be legally bound, agree as follows: 1. Definitions. ----------- For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1: "Acquisition Shares" -- the Parent Common Shares issuable upon exchange of ------------------ the Exchangeable Shares and issued directly to holders of Shares pursuant to the Plan of Arrangement. "Acquisition Sub" -- as defined in the recitals to this Agreement. --------------- "Applicable Contract" -- any Contract (a) under which the Company has or ------------------- may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the assets owned or used by it is or may become bound. "Arrangement" -- as defined in the recitals to this Agreement. ----------- "Articles" -- as defined in the recitals to this Agreement. -------- "Articles of Arrangement" -- as defined in the recitals to this Agreement. ----------------------- "Balance Sheet" -- as defined in Section 3.4. ------------- "Best Efforts" -- the efforts that a prudent Person desirous of achieving a ------------ result would use in similar circumstances to ensure that such result is achieved as expeditiously as possible; provided, however, that an obligation to use Best ------------------ Efforts under this Agreement does not require the Person subject to that obligation to take actions that would result in a materially adverse change in the benefits to such Person of this Agreement and the Contemplated Transactions. "Breach" -- a "Breach" of a representation, warranty, covenant, obligation, ------ or other provision of this Agreement or any instrument delivered pursuant to this Agreement will be deemed to have occurred if there is or has been any inaccuracy in or breach of, or any failure to perform or comply with, such representation, warranty, covenant, obligation, or other provision. "Closing" -- as defined in Section 2.2. ------- -2- "Closing Date" -- the date and time as of which the Closing actually takes ------------ place. "Commission" -- the U.S. Securities and Exchange Commission. ---------- "Common Shares" -- the Common Shares of the Company. ------------- "Company" -- as defined in the first paragraph of this Agreement. ------- "Company Affiliate Agreements" -- as defined in Section 7.4(c). ---------------------------- "Company Employee Plan" -- any plan, program, policy, practice, contract, --------------------- agreement or other arrangement providing for compensation, severance, termination pay, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written or unwritten or otherwise, funded or unfunded, including without limitation, each "employee benefit plan," within the meaning of Section 3(3) of ERISA (as defined in this Section) which is or has been maintained, contributed to, or required to be contributed to, by the Company for the benefit of any Employee. "Company Fairness Opinion" -- as defined in Section 3.28. ------------------------ "Consent" -- any approval, consent, ratification, waiver, or other ------- authorization (including any Governmental Authorization). "Contemplated Transactions" -- all of the transactions contemplated by this ------------------------- Agreement, including: (a) the Transactions (as defined in this Section) and Parent's exercise of control over the Company; (b) the execution, delivery, and performance of the Key Employee Employment Agreements, the Noncompetition Agreements, the Principal Seller's Releases, the Company Affiliate Agreements, the Escrow Agreement, the Support Agreement and the Voting and Exchange Trust Agreement; and (c) the performance by Parent and the Company of their respective covenants and obligations under this Agreement. "Contract" -- any agreement, contract, obligation, promise, or undertaking -------- (whether written or oral and whether express or implied) that is legally binding. "Court" -- the Ontario Superior Court. ----- "Damages" -- as defined in Section 10.1. ------- "Director" -- the director appointed pursuant to Section 278 of the Ontario -------- Act. -3- "Disclosure Letter" -- the disclosure letter delivered by the Company to ----------------- Parent concurrently with the execution and delivery of this Agreement. "Dissent Rights" -- means a shareholder of the Company's rights of dissent -------------- in respect of the Arrangement described in Section 3.1 of the Plan of Arrangement. "$" and "Dollars" -- United States dollars. - ------- "Effective Time" -- as defined in Section 2.1(b) of this Agreement. -------------- "Employee" -- any current employee, officer, or director of the Company. -------- "Employee Agreement" -- each management, employment, severance, consulting, ------------------ relocation, repatriation, expatriation, visas, work permit or similar agreement or contract between the Company and any Employee or consultant. "Employee Options" -- all outstanding options or rights to purchase shares ---------------- of capital stock of the Company issued under the Share Option Plan. "Encumbrance" -- any charge, claim, community property interest, condition, ----------- equitable interest, lien, option, pledge, security interest, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership. "Environmental Laws" -- as defined in Section 3.18. ------------------ "ERISA" -- the Employee Retirement Income Security Act of 1974 or any ----- successor law, and regulations and rules issued pursuant to that Act or any successor law. "Escrow Agent" -- as named in Section 10.1. ------------ "Escrow Agreement" -- as defined in Section 10.1. ---------------- "Exchange Ratio" -- the ratio of 0.20405 Exchangeable Shares or Parent -------------- Common Shares (as the case may be) for each Share. "Exchangeable Shares" -- as defined in the recitals to this Agreement. ------------------- "Facilities" -- any real property, leaseholds, or other interests currently ---------- or formerly owned or operated by the Company and any buildings, plants, structures, or equipment (including motor vehicles) currently or formerly owned or operated by the Company. "Final Order" -- as defined in Section 2.1(b). ----------- -4- "GAAP" -- generally accepted Canadian accounting principles, applied on a ---- basis consistent with the basis on which the Balance Sheet and the other financial statements referred to in Section 3.4(b) were prepared. "Governmental Authorization" -- any approval, consent, license, permit, -------------------------- waiver, or other authorization issued, granted, given, or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement. "Governmental Body" -- any: ----------------- (a) nation, province, state, county, city, town, village, district, or other jurisdiction of any nature; (b) federal, provincial, state, local, municipal, foreign, or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); (d) multi-national organization or body; or (e) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature. "Intellectual Property Assets" -- as defined in Section 3.19(a). ---------------------------- "Interim Balance Sheet" -- as defined in Section 3.4. --------------------- "Interim Order" -- as defined in Section 2.1(a). ------------- "IRC" -- the Internal Revenue Code of 1986 or any successor law and --- regulations issued by the IRS pursuant thereto. "IRS" -- the United States Internal Revenue Service or any successor and, --- to the extent relevant, the United States Department of the Treasury. "Key Employee Employment Agreements" -- as defined in Section 7.4(b). ---------------------------------- "Key Employees" -- the employees of the Company identified on Schedule A ------------- attached hereto. "Knowledge" -- an individual will be deemed to have "Knowledge" of a --------- particular fact or other matter if: (a) such individual is actually aware of such fact or other matter; or -5- (b) a prudent individual could be expected to discover or otherwise become aware of such fact or other matter in the course of conducting a reasonable investigation concerning the existence of such fact or other matter. A Person (other than an individual) will be deemed to have "Knowledge" of a particular fact or other matter if any individual who is serving as a director, officer, partner, executor, or trustee of such Person (or in any similar capacity) has, or at any time had, "Knowledge" of such fact or other matter. "Legal Requirement" -- any federal, provincial, state, local, municipal, ----------------- foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty. "Noncompetition Agreements" -- as defined in Section 7.4(f). ------------------------- "Nonemployee Options" -- all options, warrants or rights to purchase shares ------------------- of capital stock of the Company, other than Employee Options. "Ontario Act" -- the Business Corporations Act (Ontario). ----------- "Options" -- collectively, the Employee Options and the Nonemployee ------- Options. "Order" -- any award, decision, injunction, judgment, order, ruling, ----- subpoena, or verdict entered, issued, made, or rendered by any court, administrative agency, or other Governmental Body or by any arbitrator. "Ordinary Course of Business" -- an action taken by a Person will be deemed --------------------------- to have been taken in the "Ordinary Course of Business" only if: (a) such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person; (b) such action is not required to be authorized by the board of directors of such Person (or by any Person or group of Persons exercising similar authority) and is not required to be specifically authorized by the parent company (if any) of such Person; and (c) such action is similar in nature and magnitude to actions customarily taken, without any authorization by the board of directors (or by any Person or group of Persons exercising similar authority), in the ordinary course of the normal day-to-day operations of other Persons that are in the same line of business as such Person. "Organizational Documents" -- (a) the articles or certificate of ------------------------ incorporation and the bylaws of a corporation; (b) any charter or similar document adopted or filed in connection with the creation, formation, or organization of a Person; and (c) any amendment to any of the foregoing. -6- "OSA" -- the Securities Act (Ontario) or any successor law, and rule and --- regulations issued pursuant to that Act or any successor law. "Parent" -- as defined in the first paragraph of this Agreement. ------ "Parent Common Shares" -- the Common Stock, $0.0001 par value per share, of -------------------- Parent. "Person" -- any individual, corporation (including any non-profit ------ corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or Governmental Body. "Plan of Arrangement" -- defined in the recitals to this Agreement. ------------------- "Preferred Shares" -- the Class A Preference Shares, Series 1 of the ---------------- Company. "Principal Sellers" -- the Persons set forth on Schedule B attached hereto. ----------------- "Principal Seller's Releases" -- as defined in Section 7.4(e). --------------------------- "Proceeding" -- any action, arbitration, audit, hearing, investigation, ---------- litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator. "Registrable Shares" -- the Acquisition Shares, and the Parent Common ------------------ Shares issuable upon exercise or conversion of the Replacement Nonemployee Options. "Registration Statement" -- as defined in Section 6.8. ---------------------- "Related Person" -- with respect to a particular individual: -------------- (a) each other member of such individual's Family; (b) any Person that is directly or indirectly controlled by such individual or one or more members of such individual's Family; (c) any Person in which such individual or members of such individual's Family hold (individually or in the aggregate) a Material Interest; and (d) any Person with respect to which such individual or one or more members of such individual's Family serves as a director, officer, partner, executor, or trustee (or in a similar capacity). With respect to a specified Person other than an individual: (a) any Person who beneficially owns, directly or indirectly, ten percent (10%) of the issued and outstanding equity securities or equity interests in the specified Person; -7- (b) any Person who beneficially owns, directly or indirectly, ten percent (10%) of voting securities or other voting interests in the specified Person; (c) any Person who has the right to designate a director in the specified Person; (d) any Person who has the right to appoint the chief executive officer of the specified Person; (e) any entity in which a Related Person owns twenty-five percent (25%) or more of the issued and outstanding equity securities or equity interests in such entity; (f) each Person that serves as a director, officer, partner, executor, or trustee of such specified Person (or in a similar capacity); (g) any Person in which such specified Person holds a Material Interest; (h) any Person with respect to which such specified Person serves as a general partner or a trustee (or in a similar capacity); and (i) any Related Person of any individual described in clause (b) or (c). For purposes of this definition, (a) the "Family" of an individual includes (i) the individual, (ii) the individual's spouse, (iii) any other natural person who is related to the individual or the individual's spouse within the second degree, and (iv) any other natural person who resides with such individual, and (b) "Material Interest" means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of voting securities or other voting interests representing at least 10% of the outstanding voting power of a Person or equity securities or other equity interests representing at least 10% of the outstanding equity securities or equity interests in a Person. "Replacement Employee Options" -- the Replacement Options into which the ---------------------------- Employee Options shall be converted pursuant to the Plan of Arrangement. "Replacement Nonemployee Options" -- the Replacement Options into which the ------------------------------- Nonemployee Options shall be converted pursuant to the Plan of Arrangement. "Replacement Option" -- as defined in Section 2.2(d) of the Plan of ------------------ Arrangement. "Representative" -- with respect to a particular Person, any director, -------------- officer, employee, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors. "Securities Act" -- the U.S. Securities Act of 1933, as amended, or any -------------- successor law, and regulations and rules issued pursuant to that Act or any successor law. "Share Option Plan" -- the INEX Corporation Share Option Plan. ----------------- -8- "Shares" -- collectively, the Common Shares and the Preferred Shares of the ------ Company. "Subsidiary" -- with respect to any Person (the "Owner"), any corporation ---------- or other Person of which securities or other interests having the power to elect a majority of that corporation's or other Person's board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than securities or other interests having such power only upon the happening of a contingency that has not occurred) are held by the Owner or one or more of its Subsidiaries; when used without reference to a particular Person, "Subsidiary" means a Subsidiary of the Company. "Support Agreement" -- the Exchangeable Share Support Agreement, as defined ----------------- in Section 6.7. "Tax" -- includes income tax, purchase tax, value added tax, excise tax, --- sales tax, Goods and Services Tax, Provincial Sales Tax and any other tax of any kind imposed on the Company, its assets or its properties. "Tax Return" -- any return (including any information return), report, ---------- statement, schedule, notice, form, or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection, or payment of any Tax or in connection with the administration, implementation, or enforcement of or compliance with any Legal Requirement relating to any Tax. "Threatened" -- a claim, Proceeding, dispute, action, or other matter will ---------- be deemed to have been "Threatened" if any demand or statement has been made (orally or in writing) or any notice has been given (orally or in writing) that would lead a prudent Person to conclude that such a claim, Proceeding, dispute, action, or other matter is likely to be asserted, commenced, taken, or otherwise pursued in the future. "Transactions" -- the transactions described in Section 2.1 of this ------------ Agreement. "ULC" -- a defined in the recitals to this agreement. --- "Voting and Exchange Trust Agreement" -- as defined in Section 6.7. ----------------------------------- 2. The Transactions. ---------------- 2.1 Description of the Transactions. ------------------------------- (a) As promptly as practicable, the Company shall apply to the Court pursuant to Section 182 of the Ontario Act for an interim order in form and substance reasonably satisfactory to Parent and the Company (the "Interim Order") providing for, among other things the calling and holding of a special meeting of the shareholders of the Company (the "Company Shareholder Meeting") for the purpose of considering and, if deemed advisable, approving the Arrangement under Section 182 of the Ontario Act and pursuant to this Agreement and the Plan of -9- Arrangement, with such changes, modifications and additions thereto as the parties may reasonably agree upon. The notice of motion for the application for the Interim Order shall request that the Interim Order provide (a) for the class of Persons to whom notice shall be provided in respect of the Arrangement and the Company Shareholder Meeting and for the manner in which such notice shall be provided, (b) that the requisite shareholder approval for the special resolution approving the Arrangement shall be 66-2/3% of the votes cast on such special resolution by holders of Common Shares and Preferred Shares, each voting separately as a class, present in person or by proxy at the Company Shareholder Meeting, (c) that, in all other respects, the terms, restrictions and conditions of the Articles of Incorporation and By-Laws of the Company, including quorum requirements and all other matters, shall apply in respect of the Company Shareholder Meeting and (d) for the grant of the rights of dissent in respect of the arrangement described in Section 3.1 of the Plan of Arrangement. (b) If the shareholders of the Company shall approve the Arrangement in accordance with the Interim Order, and subject to the satisfaction or waiver of the other conditions set forth in Article 7 and 8, the Company shall as promptly as practicable (a) take all necessary steps to submit the Arrangement to the Court and apply for a final order of the Court approving the Arrangement in such fashion as the Court may direct (the "Final Order"). At 12:01 a.m. (the "Effective Time") on the date (the "Effective Date") shown on the Certificate of Arrangement issued by the Director giving effect to the Arrangement, the reorganization of capital and other transactions set out in clauses (a) through (f), inclusive, of Section 2.2 of the Plan of Arrangement shall occur and shall be deemed to occur in the order set forth in such Section 2.2 without any further act or formality. (c) Pursuant to the terms of the Plan of Arrangement and subject to the Escrow Agreement, commencing at the Effective Time, the following events will occur: (i) each outstanding Common Share (other than Common Shares held by shareholders who exercise their Dissent Rights) will be transferred by the holder thereof, at the shareholder's election, either (i) to Acquisition Sub in exchange for that number of fully paid and non-assessable Exchangeable Shares equal to the Exchange Ratio, or (ii) to ULC in exchange for that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio; (ii) each outstanding Common Share in respect of which an election has not been made by the holder thereof, or in respect of which an effective election has not been made (other than Common Shares held by a shareholders who exercise their Dissent Rights), will be transferred by the holder thereof to Acquisition Sub in exchange for that number of fully paid and non-assessable Exchangeable Shares equal to the Exchange Ratio; (iii) each outstanding Preferred Share (other than Preferred Shares held by a shareholder who exercises its Dissent Rights) will be transferred by the holder thereof to ULC in exchange for that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio; and -10- (iv) each Option shall be converted, without any act or formality on the part of the holder thereof, into a Replacement Option. 2.2 Closing. ------- Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Section 9 hereof, and subject to the satisfaction or waiver of the conditions set forth in Sections 7 and 8 hereof, the closing of the Transactions (the "Closing") will take place as ------- promptly as practicable after satisfaction or waiver of the conditions set forth in Sections 7 and 8 hereof, at the offices of Fasken Campbell Godfrey, Toronto Dominion Bank Tower, 66 Wellington Street West, Suite 4200, Toronto, Ontario, unless another date, time or place is agreed to in writing by the parties hereto. At the Closing, the parties hereto shall deliver the documents contemplated hereby together with such other customary documents as may be reasonably requested by the parties. 2.3 Accounting Consequences. ----------------------- It is intended by the parties hereto that the Transactions shall qualify for accounting treatment as a pooling of interests under U.S. generally accepted accounting principles. 2.4 Adjustments to Exchange Ratio. ----------------------------- The Exchange Ratio shall be adjusted to reflect fully the effect of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Shares or the Shares), reorganization, recapitalization or other like change with respect to Parent Common Shares or the Shares occurring after the date hereof and prior to the Effective Time. 2.5 Tax Treatment. ------------- It is intended that the Transactions shall generally constitute (i) a taxable exchange for United States federal income tax purposes (not qualifying under Sections 368 or 351 of the IRC) to holders of Shares who are U.S. residents or who are otherwise subject to taxation in the United States on the sale or exchange of Shares, and (ii) a tax deferred reorganization for Canadian federal income tax purposes for owners of Shares who are residents of Canada for Canadian federal income tax purposes who receive Exchangeable Shares as a consequence of the Arrangement. 3. Representations and Warranties of the Company. --------------------------------------------- The Company represents and warrants to Parent as follows: 3.1 Organization and Good Standing. ------------------------------ (a) The Company has no Subsidiaries. Part 3.1 of the Disclosure Letter contains a complete and accurate list for the Company of its name, its jurisdiction of incorporation, its principal place of business, other jurisdictions in which it is authorized to do business, and its -11- capitalization (including a true, correct and complete list of the identity of each beneficial holder of Shares and Options, the number of Shares held by each and the number of Shares subject to Options held by each and the residence or principal place of business of each holder). The Company is a corporation incorporated and validly existing, and in good standing under the laws of the Province of Ontario, with full corporate power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all its obligations under Applicable Contracts. The Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification. (b) The Company has delivered to Parent a copy of the Organizational Documents of the Company, as currently in effect. 3.2 Authority; No Conflict ---------------------- (a) This Agreement constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms subject to bankruptcy, insolvency and other similar laws effecting creditors' rights generally and to general principles of equity. Subject to the approval of this Agreement by the Company's shareholders, the Company has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and to perform its obligations under this Agreement. (b) Except as set forth in Part 3.2 of the Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation or performance of the obligations of the Company in connection with the Transactions will, directly or indirectly (with or without notice or lapse of time): (i) contravene, conflict with, or result in a violation of (A) any provision of the Organizational Documents of the Company, or (B) any resolution adopted by the board of directors or the stockholders of the Company; (ii) contravene, conflict with, or result in a violation of, or give any Governmental Body or other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any Order to which the Company or any of the assets owned or used by the Company, may be subject; (iii) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, or modify, any Governmental Authorization that is held by the Company or that otherwise relates to the business of, or any of the assets owned or used by, the Company; (iv) cause the Company to become subject to, or to become liable for the payment of, any Tax; -12- (v) cause any of the assets owned by the Company to be reassessed or revalued by any taxing authority or other Governmental Body; (vi) contravene, conflict with, or result in a violation or breach of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; or (vii) result in the imposition or creation of any Encumbrance upon or with respect to any of the assets owned or used by the Company. Except as set forth in Part 3.2 of the Disclosure Letter, the Company is not or will not be required to give any notice to or obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of its obligations in connection with the Transactions. 3.3 Capitalization. -------------- The authorized equity securities of the Company consists of an unlimited number of Common Shares and 1,625,000 Class A Preference Shares, of which 2,000,622 Common Shares are issued and outstanding and 240,271 Class A Preference Shares, Series 1 are issued and outstanding, which collectively constitute all of the outstanding Shares. Except as set forth in Part 3.3 of the Disclosure Letter, no legend or other reference to any purported Encumbrance appears upon any certificate representing equity securities of the Company. All of the outstanding equity securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable. Except as described in Part 3.3 of the Disclosure Letter, there are no Options or other Contracts to which the Company is a party that relates to the issuance, sale, or transfer of any equity securities or other securities of the Company. None of the outstanding equity securities or other securities of the Company was issued in violation of the Securities Act, the OSA or any other Legal Requirement. The Company does not own, or have any Contract to acquire, any equity securities or other securities of any Person or any direct or indirect equity or ownership interest in any other business. 3.4 Financial Statements. -------------------- The Company has delivered to Parent: (a) a balance sheet of the Company as at December 31, 1998 (including the notes thereto, the "Balance Sheet"), and the ------------- related statements of operations and deficit for the fiscal year then ended, together with the report thereon of PricewaterhouseCoopers LLP, independent chartered accountants, and (b) an unaudited balance sheet of the Company as at March 31, 1999 (the "Interim Balance Sheet") and the related unaudited --------------------- statements of operations and deficit for the three months then ended, including in each case the notes thereto. Such financial statements and notes fairly present the financial condition and the results of operations, and cash flow of the Company as at the respective dates of and for the periods referred to in such financial statements, all in accordance with GAAP, subject, in the case of interim financial statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be materially adverse) and the absence of notes (that, if presented, would not differ -13- materially from those included in the Balance Sheet); the financial statements referred to in this Section 3.4 reflect the consistent application of such accounting principles throughout the periods involved. No financial statements of any Person other than the Company are required by GAAP to be included in the financial statements of the Company. 3.5 Books and Records. ----------------- The books of account, minute books and share certificate books of the Company, all of which have been made available to Parent, are complete and correct and have been maintained in accordance with sound business practices, including the maintenance of an adequate system of internal controls. The minute books of the Company contain accurate and complete records of all meetings held of, and corporate action taken by, the shareholders, the Boards of Directors, and committees of the Boards of Directors of the Company, and no meeting of any such shareholders, Board of Directors, or committee has been held for which minutes have not been prepared and are not contained in such minute books. At the Closing, all of those books and records will be in the possession of the Company. 3.6 Title to Properties; Encumbrances. --------------------------------- Part 3.6 of the Disclosure Letter contains a complete and accurate list of all real property, leaseholds, or other real property interests owned by the Company. The Company owns all the properties and assets (whether real, personal, or mixed and whether tangible or intangible) that they purport to own, located in the Facilities owned or operated by the Company or reflected as owned in the books and records of the Company, including all of the properties and assets reflected in the Balance Sheet and the Interim Balance Sheet (except for assets held under capitalized leases disclosed or not required to be disclosed in Part 3.6 of the Disclosure Letter and personal property sold since the date of the Balance Sheet and the Interim Balance Sheet, as the case may be, in the Ordinary Course of Business), and all of the properties and assets purchased or otherwise acquired by the Company since the date of the Interim Balance Sheet (except for personal property acquired and sold since the date of the Interim Balance Sheet in the Ordinary Course of Business), which subsequently purchased or acquired properties and assets (other than inventory and short-term investments) are listed in Part 3.6 of the Disclosure Letter. Except as set forth in Part 3.6 of the Disclosure Letter, all material properties and assets reflected in the Balance Sheet and the Interim Balance Sheet are free and clear of all Encumbrances except, with respect to all such properties and assets, (a) mortgages or security interests shown on the Balance Sheet or the Interim Balance Sheet as securing specified liabilities or obligations, with respect to which no default (or event that, with notice or lapse of time or both, would constitute a default) exists, (b) mortgages or security interests incurred in connection with the purchase of property or assets after the date of the Interim Balance Sheet (such mortgages and security interests being limited to the property or assets so acquired), with respect to which no default (or event that, with notice or lapse of time or both, would constitute a default) exists, and (c) liens for current taxes not yet due. -14- 3.7 Condition and Sufficiency of Assets. ----------------------------------- The building, plants, structures, and equipment of the Company are sufficient for the continued conduct of the Company's businesses after the Closing in substantially the same manner as conducted prior to the Closing. 3.8 Accounts Receivable. ------------------- All accounts receivable of the Company that are reflected on the Interim Balance Sheet or on the accounting records of the Company as of the Closing Date (collectively, the "Accounts Receivable") represent or will represent valid ------------------- obligations arising from sales actually made or services actually performed in the Ordinary Course of Business. Unless paid prior to the Closing Date, the Accounts Receivable are or will be as of the Closing Date collectible net of the respective reserves shown on the Interim Balance Sheet or on the accounting records of the Company as of the Closing Date (which reserves are adequate and calculated consistent with past practice and, in the case of the reserve as of the Closing Date, will not represent a materially greater percentage of the Accounts Receivable as of the Closing Date than the reserve reflected in the Interim Balance Sheet represented of the Accounts Receivable reflected therein and will not represent a material adverse change in the composition of such Accounts Receivable in terms of aging). Subject to such reserves, each of the Accounts Receivable is or will be collectible without any set-off. There is no contest, claim, or right of set-off, other than returns in the Ordinary Course of Business, under any Contract with any obligor of an Accounts Receivable relating to the amount or validity of such Accounts Receivable. Part 3.8 of the Disclosure Letter contains a complete and accurate list of all Accounts Receivable as of the date of the Interim Balance Sheet, which list sets forth the aging of such Accounts Receivable. 3.9 No Undisclosed Liabilities. -------------------------- Except as set forth in Part 3.9 of the Disclosure Letter, the Company has no material liabilities or obligations of any nature (whether known or unknown and whether absolute, accrued, contingent, or otherwise) except for liabilities or obligations reflected or reserved against in the Balance Sheet or the Interim Balance Sheet and current liabilities incurred in the Ordinary Course of Business since the respective dates thereof. 3.10 Taxes. ----- (a) The Company has filed or caused to be filed (on a timely basis since February 5, 1997) all Tax Returns that are or were required to be filed by it pursuant to applicable Legal Requirements. The Company has delivered or made available to Parent copies of, and Part 3.10 of the Disclosure Letter contains a complete and accurate list of, all such Tax Returns reporting a tax liability of $25,000 or more relating to income or other taxes filed since February 5, 1997. The Company has paid, or made provision for the payment of, all Taxes that have or may have become due, pursuant to those Tax Returns (whether or not shown on such Tax Returns) or otherwise, or pursuant to any assessment received by the Company, except such Taxes, if any, as are listed in Part 3.10 of the Disclosure Letter and are being contested in good faith and as to which -15- adequate reserves (determined in accordance with GAAP) have been provided in the Balance Sheet and the Interim Balance Sheet. (b) Part 3.10 of the Disclosure Letter contains a complete and accurate list of all audits of all such Tax Returns, including a reasonably detailed description of the nature and outcome of each audit. All deficiencies proposed as a result of such audits have been paid, reserved against, settled, or, as described in Part 3.10 of the Disclosure Letter, are being contested in good faith by appropriate proceedings. Part 3.10 of the Disclosure Letter describes all adjustments to the Tax Returns filed by the Company for all taxable years since inception, and the resulting deficiencies proposed by the appropriate tax authorities. Except as described in Part 3.10 of the Disclosure Letter, the Company has not been given or been requested to give waivers or extensions (or is or would be subject to a waiver or extension given by any other Person) of any statute of limitations relating to the payment of Taxes of the Company or for which the Company may be liable. (c) The charges, accruals, and reserves with respect to Taxes on the respective books of the Company are adequate (as determined in accordance with GAAP) and are at least equal to the Company's liability for Taxes. There exists no proposed tax assessment against the Company except as disclosed in the Balance Sheet or in Part 3.10 of the Disclosure Letter. All Taxes that the Company is or was required by Legal Requirements to withhold or collect have been duly withheld or collected and, to the extent required, have been paid to the proper Governmental Body or other Person. (d) All Tax Returns filed by the Company are true, correct, and complete. There is no tax sharing agreement that will require any payment by the Company after the date of this Agreement. (e) No claims have been made, which are currently pending, by any Canadian, Ontario or any other taxing authority in connection with any of the returns and reports referred to in Subsection (a) above. (f) All Canadian, U.S. and foreign income, profits, franchise, sales, use, occupancy, property, severance, excise, value added and other taxes (including interest and penalties) due from the Company, have been fully paid, or have been or will be adequately provided for in the Balance Sheet and Interim Balance Sheet. (g) The Company is not subject to any adjustment or penalty by reason of underpayment or violation of any order, rule or regulation of, or a default with respect to, any return or report required to be filed with, any federal, provincial, state, local, foreign or other governmental taxing agency, department, commission, board, bureau or instrumentality to which they are subject. 3.11 No Material Adverse Change. -------------------------- Since the date of the Balance Sheet, there has not been any material adverse change in the business, operations, properties, prospects, assets, or condition of the Company, and, to the -16- Knowledge of the Company, no event has occurred or circumstance exists that is reasonably likely to result in such a material adverse change. 3.12 Employee Matters and Benefit Plans. ---------------------------------- Part 3.12 of the Disclosure Letter contains a complete and accurate list of the following information for each Employee or consultant of the Company, including: each Employee on leave of absence or layoff status: name; job title; aggregate annual remuneration (gross salary); vacation accrued; and service credited for purposes of vesting and eligibility to participate under a Company Employee Plan or any retirement, severance pay or employee benefit plan. For the purposes hereof "remuneration" includes bonuses but excludes non-monetary fringe benefits and additional costs to the Company in respect of remuneration. (a) There are no retired Employees of the Company. (b) To the Company's Knowledge, no Employee or consultant of the Company is in violation of any term of any employment, employment contract, patent disclosure agreement or any other contract or agreement relating to the relationship of any such person with the Company or any other party because of the nature of the business conducted or to be conducted by the Company. To the Company's Knowledge, no Employee or consultant of the Company is a party to, or is otherwise bound by, any agreement or arrangement, including any confidentiality, non-competition, or proprietary rights agreement, between such Employee or consultant and any other Person ("Proprietary Rights Agreement") ---------------------------- that in any way adversely affects or will affect (i) the performance of his duties as an Employee or consultant of the Company, (ii) the ability of the Company to conduct its business, including any Proprietary Rights Agreement with any such Employee or consultant or (iii) the ability of such Employee or consultant to assign to the Company or to any other Person any rights to any invention, improvement or discovery. The Company is currently not party to, and since its inception has never been party to, any collective bargaining agreements or other labor Contracts covering any of its Employees. Since February 5, 1997 there has not been, there is not presently pending or existing, and, to the Company's Knowledge, there is not Threatened, any strike, slowdown, picketing, work stoppage, or employee grievance process. The Company has complied in all respects with all Legal Requirements required to be complied with by the Company relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, the payment of social security and similar taxes and occupational safety and health. The Company is not liable for the payment of any compensation, damages, taxes, fines, penalties, or other amounts, however designated, for failure to comply with any of the foregoing Legal Requirements. To the Knowledge of the Company, there is no Key Employee who has any plans to terminate his or her employment with the Company. (c) Each Company Employee Plan has been established, maintained and administered in compliance with its terms and conditions and with the requirements prescribed by any and all statutory or regulatory laws that are applicable to such Company Employee Plan. Furthermore, no Company Employee Plan has unfunded liabilities, that as of the Closing, will not be offset by insurance or fully accrued. Except as required by law, no condition, other than approval of -17- such action by the Company's board of directors, exists that would prevent the Company from terminating or amending any Company Employee Plan. 3.13 Compliance with Legal Requirements; Governmental Authorizations. --------------------------------------------------------------- (a) Except as set forth in Part 3.13 of the Disclosure Letter: (i) the Company is, and at all times since February 5, 1997 has been, in full compliance with each Legal Requirement that is or was applicable to it or to the conduct or operation of its business or the ownership or use of any of its assets; (ii) no event has occurred or circumstance exists that (with or without notice or lapse of time) (A) may constitute or result in a violation by the Company of, or a failure on the part of the Company to comply with, any Legal Requirement, or (B) may give rise to any obligation on the part of the Company to undertake, or to bear all or any portion of the cost of, any remedial action of any nature; and (iii) the Company has not received, at any time since February 5, 1997, any notice or other communication (whether oral or written) from any Governmental Body or any other Person regarding (A) any actual, alleged, possible, or potential violation of, or failure to comply with, any Legal Requirement, or (B) any actual, alleged, possible, or potential obligation on the part of the Company to undertake, or to bear all or any portion of the cost of, any remedial action of any nature. (b) Part 3.13 of the Disclosure Letter contains a complete and accurate list of each Governmental Authorization that is held by the Company or that otherwise relates to the business of, or to any of the assets owned or used by, the Company. Each Governmental Authorization listed or required to be listed in Part 3.13 of the Disclosure Letter is valid and in full force and effect. Except as set forth in Part 3.13 of the Disclosure Letter: (i) the Company is, and at all times has been, in full compliance with all of the terms and requirements of each Governmental Authorization identified or required to be identified in Part 3.13 of the Disclosure Letter; (ii) no event has occurred or circumstance exists that may (with or without notice or lapse of time) (A) constitute or result directly or indirectly in a violation of or a failure to comply with any term or requirement of any Governmental Authorization listed or required to be listed in Part 3.13 of the Disclosure Letter, or (B) result directly or indirectly in the revocation, withdrawal, suspension, cancellation, or termination of, or any modification to, any Governmental Authorization listed or required to be listed in Part 3.13 of the Disclosure Letter; (iii) the Company has not received any notice or other communication (whether oral or written) from any Governmental Body or any other Person regarding (A) any actual, alleged, possible, or potential violation of or failure by the Company to comply with any term or requirement of any Governmental Authorization, or (B) any actual, -18- proposed, possible, or potential revocation, withdrawal, suspension, cancellation, termination of, or modification to any Governmental Authorization held by the Company; and (iv) all applications required to have been filed for the renewal of the Governmental Authorizations listed or required to be listed in Part 3.13 of the Disclosure Letter have been duly filed on a timely basis with the appropriate Governmental Bodies, and all other filings required to have been made with respect to such Governmental Authorizations have been duly made by the Company on a timely basis with the appropriate Governmental Bodies. (c) The Governmental Authorizations listed in Part 3.13 of the Disclosure Letter collectively constitute all of the Governmental Authorizations necessary to permit the Company to lawfully conduct and operate its businesses in the manner it currently conducts and operates such businesses and to permit the Company to own and use its assets in the manner in which it currently owns and uses such assets. 3.14 Legal Proceedings; Orders. ------------------------- (a) Except as set forth in Part 3.14(a) of the Disclosure Letter, there is no pending Proceeding: (i) that has been commenced by or against the Company or that otherwise relates to the business of, or any of the assets owned or used by, the Company; or (ii) to the Knowledge of the Company, that challenges, or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions. (b) To the Knowledge of the Company, except as set forth in Part 3.14(b) of the Disclosure Letter, (1) no such Proceeding has been Threatened by or against the Company, and (2) no event has occurred or circumstance exists that may give rise to or serve as a basis for the commencement of any such Proceeding by or against the Company. The Company has delivered to Parent copies of all pleadings, correspondence, and other documents relating to each Proceeding listed in Part 3.14 of the Disclosure Letter. The Proceedings listed in Part 3.14 of the Disclosure Letter will not have a material adverse effect on the business, operations, assets, condition, or prospects of the Company. (c) There is no Order to which the Company, or any of the assets owned or used by the Company, is subject; and (d) To the Knowledge of the Company, no Employee is subject to any Order that prohibits such Employee from engaging in or continuing any conduct, activity, or practice relating to the business of the Company. -19- 3.15 Absence of Certain Changes and Events. ------------------------------------- Except as set forth in Part 3.15 of the Disclosure Letter, since the date of the Interim Balance Sheet, the Company has conducted its businesses only in the Ordinary Course of Business and there has not been any: (a) change in the Company's authorized or issued capital stock; grant of any stock option or right to purchase shares of capital stock of the Company; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock; (b) amendment to the Organizational Documents of the Company; (c) payment or increase by the Company of any bonuses, salaries, or other compensation to any stockholder, director, officer, or (except in the Ordinary Course of Business) Employee or entry into any employment, severance, or similar Contract by the Company with any Employee; (d) adoption of, or increase in the payments to or benefits under, any Company Employee Plan for or with any Employees; (e) damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, materially and adversely affecting the properties, assets, business, financial condition, or prospects of the Company; (f) entry into, termination of, or receipt of notice of termination of (i) any license, distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or (ii) any Contract or transaction involving a total remaining commitment by or to the Company of at least $20,000; (g) sale (other than sales of inventory in the Ordinary Course of Business), lease, or other disposition of any asset or property of the Company or mortgage, pledge, or imposition of any lien or other encumbrance on any material asset or property of the Company, including the sale, lease, or other disposition of any of the Intellectual Property Assets; (h) cancellation or waiver of any claims or rights with a value to the Company in excess of $10,000; (i) material change in the accounting methods used by the Company; or (j) agreement, whether oral or written, by the Company to do any of the foregoing. -20- 3.16 Contracts; No Defaults. ---------------------- (a) Part 3.16(a) of the Disclosure Letter contains a complete and accurate list, and the Company has delivered to Parent true and complete copies, of: (i) each Applicable Contract that involves performance of services or delivery of goods or materials by the Company of an amount or value in excess of $25,000; (ii) each Applicable Contract that involves performance of services or delivery of goods or materials to the Company of an amount or value in excess of $25,000; (iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of the Company in excess of $10,000; (iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year); (v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former Employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets; (vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other Employee representative of a group of Employees; (vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person; (viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Affiliate of the Company or limit the freedom of the Company or any Affiliate of the Company to engage in any line of business or to compete with any Person; (ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods; (x) each power of attorney executed by the Company that is currently effective and outstanding; -21- (xi) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damages; (xii) each Applicable Contract for capital expenditures in excess of $10,000; (xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of Business; and (xiv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. (b) Except as set forth in Part 3.16(b) of the Disclosure Letter, each Applicable Contract identified or required to be identified in Part 3.16(a) of the Disclosure Letter is in full force and effect and is valid and enforceable against the Company in accordance with its terms. (c) Except as set forth in Part 3.16(c) of the Disclosure Letter: (i) the Company is, and at all times since February 5, 1997 has been, in compliance with all applicable terms and requirements of each Applicable Contract under which the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by the Company is or was bound; (ii) to the Knowledge of the Company, each other Person that has or had any obligation or liability under any Applicable Contract under which the Company has or had any rights is, and at all times since the Company's inception has been, in compliance with all applicable terms and requirements of such Applicable Contract; (iii) to the Knowledge the Company, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and (iv) the Company has not been given or received from any other Person, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Applicable Contract. (d) There are no re negotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Applicable Contracts with any Person and no such Person has made written demand to the Company for such renegotiation. -22- 3.17 Insurance. --------- (a) The Company has delivered to Parent: (i) true and complete copies of all policies of insurance to which the Company is a party or under which the Company, or any director of the Company, is or has been covered at any time within the two years preceding the date of this Agreement; and (ii) true and complete copies of all pending applications for policies of insurance. (b) Part 3.17(b) of the Disclosure Letter describes: (i) any material self-insurance arrangement by the Company, including any reserves established thereunder; and (ii) all material obligations of the Company to third parties with respect to insurance (including such obligations under leases and service agreements) and identifies the policy under which such coverage is provided. (c) Part 3.17(c) of the Disclosure Letter sets forth, by year, for the current policy year and the preceding policy year: (i) a summary of any material loss experience under each policy; (ii) a statement describing each claim under an insurance policy for an amount in excess of $20,000, which sets forth: (1) the name of the claimant; (2) a description of the policy by insurer, type of insurance, and period of coverage; and (3) the amount and a brief description of the claim; and (4) a statement describing the loss experience for all claims that were self-insured, including the number and aggregate cost of such claims. (d) Except as set forth on Part 3.17(d) of the Disclosure Letter: (i) all policies to which the Company is a party or that provide coverage to the Company, or any director or officer of the Company: (1) to the Knowledge of the Company are valid, outstanding, and enforceable; -23- (2) are sufficient for compliance with all Legal Requirements and Contracts to which the Company is a party or by which any of them is bound; (3) will continue in full force and effect following the consummation of the Contemplated Transactions; and (4) do not provide for any retrospective premium adjustment or other experienced-based liability on the part of the Company. (ii) The Company has not received (A) any refusal of coverage or any notice that a defense will be afforded with reservation of rights, or (B) any notice of cancellation or any other indication that any insurance policy is no longer in full force or effect or will not be renewed or that the issuer of any policy is not willing or able to perform its obligations thereunder. (iii) The Company has paid all premiums due, and has otherwise performed all of its respective obligations, under each policy to which the Company is a party or that provides coverage to the Company or any director thereof. (iv) The Company has given notice to the insurer of all claims that may be insured thereby. 3.18 Environmental and Product Matters. --------------------------------- Except as set forth in Part 3.18 of the Disclosure Letter: (a) there are no claims, actions, suits, permit revocations, requests for information, prosecutions, investigations, orders or other proceedings asserted by third parties or governmental agencies involving the Company relating to the protection of the environment or human health, safety and welfare or reproductive capacity ("Environmental Claim"). The Company has ------------------- not received any notice of any pending Environmental Claim against the Company. To the Knowledge of the Company, there are no facts or circumstances that would give rise to an Environmental Claim, nor is there any intent to commence any Environmental Claims; (b) the Company has not transported, used, stored, manufactured, released, disposed of or exposed employees who have worked at the Company to any materials which are regulated by any governmental authority in violation of any statutes, regulations, rules, ordinances, by-laws, policies and guidelines ("Environmental Laws"). ------------------ (c) all of the operations of the Company and, to the Knowledge of the Company, any real property used in connection with the operations of the Company comply in all respects with applicable Environmental Laws and the Company and, to the Knowledge of the Company, nor anyone acting on behalf of any of the Company, has engaged in or permitted any operations or activities upon any real property for the purpose of or involving the treatment, storage, use, generation, release, discharge, emission or disposal of materials regulated under Environmental Laws except in compliance with applicable Environmental Laws; and -24- (d) there are and have been no citations or decisions by any governmental or regulatory body that any product manufactured, marketed or distributed at any time by the Company ("Product") is defective or fails to meet any standards promulgated by any such governmental or regulatory body. To the Knowledge of the Company, no Proceeding is pending or Threatened against the Company which may result in such citation or decision. There are no existing or, to the Knowledge of the Company, Threatened claims against the Company for services or merchandise which are defective or fail to meet any service or product warranties or any defects or problems which, if discovered by a third party, would support such a claim. No claim has been asserted against the Company for renegotiation or price redetermination of any business transaction, and other than concessions in the Ordinary Course of Business, there are no facts upon which any such claim could be based. There is no fact relating to any Product that may impose upon the Company a duty to warn customers of a defect in any Product, or latent or overt defect in any Product which has been or is being distributed by the Company, which is likely to result in claims for breach of warranty with respect to such Products in excess of the warranty reserve reflected in the Balance Sheet or Interim Balance Sheet. For purposes of the foregoing, with respect to a software product, a "defect" shall include, without limitation, any characteristic of the product which may, when the product is used with the computer and operating system with which the product is used, result in material undesired errors in processing or output, cessation of system function, or loss of or damage to data, whether during the operation of the product or during the operation of another program as a result of effects caused by the product. 3.19 Intellectual Property. --------------------- (a) Intellectual Property Assets--The term "Intellectual Property Assets" includes: (i) the Company's name, all fictional business names, trading names, registered and unregistered trademarks, service marks, and applications (collectively, "Marks"); ----- (ii) all patents, patent applications, and inventions and discoveries that may be patentable (collectively, "Patents"); ------- (iii) all copyrights in both published works and unpublished works (collectively, "Copyrights"); and ---------- (iv) all know-how, trade secrets, confidential information, customer lists, software, technical information, data, process technology, plans, drawings, and blue prints (collectively, "Trade Secrets"); owned, used, ------------- or licensed by the Company as licensee or licensor. (b) Agreements--Part 3.19(b) of the Disclosure Letter contains a ---------- complete and accurate list and summary description, including any royalties paid or received by the Company, of all Applicable Contracts relating to the Intellectual Property Assets to which the Company is a -25- party or by which the Company is bound, except for any license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs with a value of less than $5,000 under which the Company is the licensee. There are no outstanding and, to the Company's Knowledge, no Threatened disputes or disagreements with respect to any such agreement. (c) Know-How Necessary for the Business. ----------------------------------- (i) The Intellectual Property Assets are all those necessary for the operation of the Company's business as it is currently conducted. The Company is the owner of all right, title, and interest in and to each of the Intellectual Property Assets, free and clear of all liens, security interests, charges, encumbrances, equities, and other adverse claims, and has the right to use without payment to a third party all of the Intellectual Property Assets. (ii) Except as set forth in Part 3.19(c) of the Disclosure Letter, all former and current Employees have executed written Contracts with the Company that assign to the Company all rights to any inventions, improvements, discoveries, or information relating to the business of the Company. To the Knowledge of the Company, no Employee has entered into any Contract that restricts or limits in any way the scope or type of work in which the Employee may be engaged or requires the employee to transfer, assign, or disclose information concerning his work to anyone other than the Company. (d) Patents. ------- (i) The Company owns no Patents and has not applied for any Patents. (ii) To the Knowledge of the Company, none of the products manufactured and sold, nor any process or know-how used, by the Company infringes or is alleged to infringe any patent or other proprietary right of any other Person. (e) Trademarks. ---------- (i) Part 3.19(e) of Disclosure Letter contains a complete and accurate list and summary description of all Marks. The Company is the owner of all right, title, and interest in and to each of the Marks, free and clear of all liens, security interests, charges, encumbrances, equities, and other adverse claims other than as set out in Part 3.19(e) of the Disclosure Letter. (ii) All Marks that have been registered with the relevant Canadian or United States Patent and Trademark Office are currently in compliance with all formal legal requirements (including the timely post- registration filing of affidavits of use and incontestability and renewal applications), are valid and enforceable, and are not subject to any maintenance fees or taxes or actions falling due within ninety days after the Closing Date. -26- (iii) Other than as disclosed in Part 3.19(e) of the Disclosure Letter, no Mark has been or is now involved in any opposition, invalidation, or cancellation and, to the Company's Knowledge, no such action is Threatened with the respect to any of the Marks. (iv) To the Company's Knowledge there is no potentially interfering trademark or trademark application of any third party. (v) To the Knowledge of the Company, no Mark is infringed or has been challenged or Threatened in any way. To the Knowledge of the Company, none of the Marks used by the Company infringes or is alleged to infringe any trade name, trademark, or service mark of any third party, except as described in Part 3.19(e) of the Disclosure Letter. (vi) All products and materials containing a Mark bear the proper federal registration notice where permitted by law. (f) Copyrights. ---------- (i) Part 3.19(f) of the Disclosure Letter contains a complete and accurate list and summary description of all Copyrights. The Company is the owner of all right, title, and interest in and to each of the Copyrights, free and clear of all liens, security interests, charges, encumbrances, equities, and other adverse claims. (ii) No Copyrights have been registered and the Company has not applied for registration of any Copyrights. (iii) To the Knowledge of the Company, no Copyright is infringed or has been challenged or Threatened in any way. To the Knowledge of the Company, none of the subject matter of any of the Copyrights infringes or is alleged to infringe any copyright of any third party or is a derivative work based on the work of a third party. (iv) All works encompassed by the Copyrights have been marked with the proper copyright notice. (g) Trade Secrets. ------------- (i) With respect to each Trade Secret, the documentation relating to such Trade Secret is current, accurate, and sufficient in detail and content to identify and explain it and to allow its full and proper use without reliance on the knowledge or memory of any individual. (ii) The Company has taken all reasonable precautions to protect the secrecy, confidentiality, and value of their Trade Secrets. (iii) The Company has good title and an absolute (but not necessarily exclusive) right to use the Trade Secrets. The Trade Secrets are not part of the public knowledge or literature, and, to the Company's Knowledge, have not been used, divulged, or -27- appropriated either for the benefit of any Person (other than one or more of the Company) or to the detriment of the Company. No Trade Secret is subject to any adverse claim or has been challenged or, to the Company's Knowledge, Threatened in any way. (h) Identifying Software--Part 3.19(h) of the Disclosure Letter -------------------- contains a complete list of all software (the "Software") subdivided into categories as follows: (i) developed and owned by the Company; (ii) otherwise owned by the Company; (iii) customized software licensed for use by the Company; and (iv) off-the-shelf software licensed for use by the Company; along with, in the case of categories (i) and (ii), details as to the individuals who developed the Software and their employment status. The Software in the case of category (i) above has been developed entirely by Employees within the scope of their employment. (i) Quality of Products Related to Intellectual Property ---------------------------------------------------- (i) The source code version of the Software of the Company and its documentation is sufficient to allow the Acquisition Sub, with the assistance of competent software maintenance professionals, possessing ordinary skills and experience, to further develop, maintain and operate the Software with further recourse to Employees. (ii) The Software does not contain any clock, timer, counter or other limiting or disabling code, design or routine that would cause the Software to be erased, made inoperable or otherwise rendered incapable of performing in accordance with its applicable specifications or would prevent or prohibit or otherwise diminish the use of thereof by the Acquisition Sub for the purpose of providing maintenance and support or otherwise limit or restrict the Acquisition Sub's ability to use or copy the Software after a specific or random number of uses or copies, or after the lapse or occurrence of any similar triggering prompt or due to the use of a central processing unit; and (iii) All versions of the Software owned by the Company shall function accurately and without interruption before, during and after January 1, 2000 (including responding to dates - whether represented by two digits or four digits and whether the date is entered directly or through interfacing software - in a way that permits the product to function accurately and without interruption). (j) Independent Contractors. ----------------------- Except as set forth in Part 3.19(j) of the Disclosure Letter, all independent contractors engaged by the Company to develop or maintain the Intellectual Property Assets (including, without -28- limitation, the Software) have assigned in writing all of their intellectual property rights and waived their moral rights in the works they have produced for the Company. The Company has not received notice that any independent contractor who has not waived his or her moral rights intends to assert such moral rights. 3.20 Certain Payments. ---------------- Since its inception, neither the Company nor, to the Company's Knowledge, any Employee or any other Person associated with or acting for or on behalf of the Company, has directly or indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services (i) to obtain favorable treatment in securing business, (ii) to pay for favorable treatment for business secured, (iii) to obtain special concessions or for special concessions already obtained, for or in respect of the Company or any Affiliate of the Company, or (iv) in violation of any applicable Legal Requirement, (b) established or maintained any fund or asset that has not been recorded in the books and records of the Company. 3.21 Disclosure. ---------- (a) No representation or warranty of the Company in this Agreement and no statement in the Disclosure Letter omits to state a material fact necessary to make the statements herein or therein, in light of the circumstances in which they were made, not misleading. (b) No notice given pursuant to Section 5.5 will contain any untrue statement or omit to state a material fact necessary to make the statements therein or in this Agreement, in light of the circumstances in which they were made, not misleading. 3.22 Relationships with Related Persons. ---------------------------------- Except as set forth in Part 3.22 of the Disclosure Letter, to the Company's Knowledge no Related Person of the Company has, or has had, any interest in any property (whether real, personal, or mixed and whether tangible or intangible), used in or pertaining to the Company's businesses. To the Company's Knowledge, no Related Person of the Company is, or has owned (of record or as a beneficial owner) an equity interest or any other financial or profit interest in, a Person that has (i) had business dealings or a material financial interest in any transaction with any Acquired Company, or (ii) engaged in competition with the Company with respect to any line of the products or services of the Company (a "Competing Business") in any market presently served by the Company. Except as set forth in Part 3.22 of the Disclosure Letter, no Related Person of the Company is a party to any Contract with, or has any claim or right against, the Company. 3.23 Brokers or Finders. ------------------ Other than as described in Part 3.23 of the Disclosure Letter, the Company has incurred no obligation or liability, contingent or otherwise, for brokerage or finders' fees or agents' commissions or other similar payment in connection with this Agreement or the Contemplated Transactions. -29- 3.24 Customers. --------- Part 3.24 of the Disclosure Letter lists all the customers, distributors and agents, from February 5, 1997 until the date of this Agreement, of the products manufactured and services performed by or for the Company the value of which products or services provided by such party total more than $25,000. 3.25 Authenticity and Entirety of Documents. -------------------------------------- True and complete copies of all documents referred to in the Agreement (including without limitation this section) have been furnished to Parent by the Company. 3.26 Shareholder Approval. -------------------- The Company has no reason to believe that any shareholder or group of shareholders representing more that 10% of the outstanding Shares entitled to vote will exercise Dissent Rights in connection with shareholder approval of this Agreement and the Transactions. 3.27 Sales and Assets in the United States. ------------------------------------- (a) During its most recent fiscal year ended December 31, 1998, the Company made aggregate sales in or into the United States of less than $25 million; and (b) As of its most recent balance sheet, had assets in the United States having an aggregate book value of less than $15 million. 3.28 Fairness Opinion. ---------------- The Company's Board of Directors has received the written opinion of First Marathon Securities Limited (the "Company Fairness Opinion") to the effect that the Exchange Ratio is fair from a financial point of view to the shareholders of the Company. The Company has delivered a true and correct copy of the Company Fairness Opinion to Parent. 4. Representations and Warranties of Parent. ---------------------------------------- Parent represents and warrants to the Company as follows: 4.1 Organization and Good Standing. ------------------------------ Parent is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, with full corporate power and authority to conduct its business as it is now being conducted and to own or use the properties and assets that it purports to own or use. Parent is duly qualified to conduct business as a foreign corporation and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification. -30- 4.2 Authority; No Conflict. ---------------------- (a) This Agreement constitutes the legal, valid, and binding obligation of Parent, enforceable against it in accordance with its terms. Upon the execution and delivery by Parent of the Escrow Agreement, the Voting and Exchange Trust Agreement, and the Support Agreement, each of these three agreements will constitute the legal, valid, and binding obligations of Parent enforceable against it in accordance with its respective terms. Parent has the absolute and unrestricted right, power, and authority to execute and deliver this Agreement, the Escrow Agreement, the Voting and Exchange Trust Agreement and the Support Agreement and to perform its obligations under this Agreement, the Escrow Agreement, the Voting and Exchange Trust Agreement and the Support Agreement. (b) Neither the execution and delivery of this Agreement, the Voting and Exchange Trust Agreement, the Escrow Agreement or the Support Agreement by Parent nor the consummation or performance of any of the Transactions by Parent will directly or indirectly (with or without notice or lapse of time): (i) contravene, conflict with, or result in a violation of (A) any provision of the Organizational Documents of Parent, or (B) any resolution adopted by the board of directors or the stockholders of Parent; (ii) contravene, conflict with, or result in a violation of, or give any Governmental Body or other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any Order to which Parent or any of the assets owned or used by Parent, may be subject; (iii) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, or modify, any Governmental Authorization that is held by Parent or Acquisition Sub or that otherwise relates to the business of, or any of the assets owned or used by, Parent; or (iv) any Contract to which Parent is a party or by which Parent may be bound. (c) Except for the approval of Parent's board of directors Parent will not be required to obtain any Consent from any Person in connection with the execution and delivery of this Agreement, the Escrow Agreement, the Voting and Exchange Trust Agreement and the Support Agreement or the consummation or performance of any of the Transactions. 4.3 Capitalization. -------------- The authorized capital stock of Parent consists of 50,000,000 Parent Common Shares and 15,000,000 shares of Preferred Stock, $0.0001 par value per share ("Parent Preferred Stock"). At the close of business on June 30, 1999, 47,359,177 Parent Common Shares were outstanding, and 13,292,819 Parent Common Shares were issuable upon the exercise of outstanding stock options and -31- warrants. No Parent Common Shares were held by Parent in its treasury, and no shares of Parent Preferred Stock were outstanding. All outstanding Parent Common Shares are validly issued, fully paid, non-assessable and free of preemptive rights. The Parent Common Shares and the Exchangeable Shares, when issued and delivered in accordance with the terms of this Agreement and the Support Agreement (in the case of the Parent Common Shares issuable in respect of the Exchangeable Shares), and the Parent Common Shares issuable upon exercise or conversion of the Replacement Options, will have been duly authorized and validly issued, fully paid and non-assessable. The issuance of the Exchangeable Shares, the Acquisition Shares, the Parent Common Shares to the holders of Preferred Shares pursuant to the Arrangement and the Parent Common Shares issuable upon exercise or conversion of the Replacement Options, when issued and delivered in accordance with this Agreement, the Plan of Arrangement and the Articles of Arrangement, will have been duly authorized and validly issued, fully-paid and non-assessable, and will be exempt from the prospectus and registration requirements of the OSA. The issuance and first resale of the Acquisition Shares issued upon the exchange of the Exchangeable Shares from time to time and the Parent Common Shares issued from time to time upon exercise of the Replacement Options will be exempt from the prospectus and registration requirements of the OSA, in each case without qualification with or approval of or the obtaining of any further order, ruling or consent from any Governmental Body or regulatory authority under Canadian federal or provincial laws. Except as disclosed above or in the Parent SEC Documents or as otherwise contemplated by this Agreement, as of June 30, 1999, there were no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and also including any rights plan or other anti-takeover agreement, obligating Parent or any subsidiary thereof to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the capital stock of Parent, or obligating or any subsidiary of Parent to grant, extend or enter into any such agreement or commitment. 4.4 Certain Proceedings. ------------------- There is no pending Proceeding that has been commenced against Parent and that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions. To Parent's Knowledge, no such Proceeding has been Threatened. 4.5 SEC Documents. ------------- Parent has furnished the Company with a true and complete copy of each form, statement, annual, quarterly and other report, registration statement (including exhibits and amendments) and definitive proxy statement filed by Parent with the U.S. Securities and Exchange Commission ("SEC") since December 31, 1998 (the "Parent SEC Documents"), which are all the documents (other than preliminary material) that Parent was required to file with the SEC since such date. As of their respective filing dates, the Parent SEC Documents complied in all material respects with the requirements of the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, and none of the Parent SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements -32- made therein, in light of the circumstances in which they were made, not misleading. Since the filing of the most recent Quarterly Report on Form 10-Q included in the Parent SEC Documents, none of Parent's Organizational Documents has been amended or modified. The balance sheets and the related statements of operations, stockholders' equity (deficit) and cash flows (including the related notes thereto) of Parent included in the Parent SEC Documents complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, are in accordance with the books and records of Parent, have been prepared in accordance with U.S. generally accepted accounting principles applied on a basis consistent with prior periods (except as otherwise noted therein), and present fairly the financial position of Parent as of their respective dates, and the results of its operations and its cash flows for the periods presented therein (subject, in the case of the interim financial statements, to normal year-end adjustments). 4.6 Brokers or Finders. ------------------ Parent and its officers and agents have incurred no obligation or liability, contingent or otherwise, for brokerage or finders' fees or agents' commissions or other similar payment in connection with this Agreement. 4.7 Suspension and Trading. ---------------------- No order ceasing or suspending trading securities of the Parent is currently outstanding and no proceedings for this purpose have been instituted or, to the Knowledge of the Parent, are pending, contemplated or Threatened. 4.8 NASDAQ Listing. -------------- The Parent Common Shares are currently listed for trading on the NASDAQ National Market. 4.9 Prospectus Exemptions. --------------------- Neither Parent nor Acquisition Sub is a reporting issuer under the OSA. At the Effective Time, after giving effect to the issuance of the Acquisition Shares and the Parent Common Shares issuable upon conversion or exercise of the Replacement Options, the Persons or companies whose last address as shown on the books of the Parent was in Ontario and who held Parent Common Shares (i) did not hold more than 10% of Parent's Common Shares; and (ii) do not represent a number more than 10% of the total number of holders of Parent Common Shares. 4.10 No Material Adverse Change. -------------------------- Since March 31, 1999, there has not been any material adverse change in the business, operations, properties, prospects, assets or condition of the Parent, and no event has occurred or circumstance exists that is reasonably likely to result in such a material adverse change. -33- 4.11 Pooling. ------- Neither Parent nor any of its affiliates (as such term is defined in Rule 405 under the Securities Act) has taken or agreed to take any action that would affect the ability of Parent to account for the Transactions as a pooling of interests. 5. Covenants of the Company. ------------------------ 5.1 Access and Investigation. ------------------------ Between the date of this Agreement and the Closing Date, the Company will (a) afford Parent and its Representatives full and free access to the Company's personnel, properties, contracts, books and records, and other documents and data, (b) furnish Parent and its Representatives with copies of all such contracts, books and records, and other existing documents and data as Parent may reasonably request, and (c) furnish Parent and its Representatives with such additional financial, operating, and other data and information as Parent may reasonably request. 5.2 Operation of the Businesses of the Company. ------------------------------------------ Between the date of this Agreement and the Closing Date, the Company will: (a) conduct the business of the Company only in the Ordinary Course of Business; (b) use its Best Efforts to preserve intact the current business organization of the Company, keep available the services of the current Employees and agents of the Company, and maintain the relations and good will with suppliers, customers, landlords, creditors, Employees, agents, and others having business relationships with the Company; (c) confer with Parent concerning operational matters of a material nature; and (d) otherwise report periodically to Parent concerning the status of the business, operations, and finances of the Company. 5.3 Negative Covenant. ----------------- Except as otherwise expressly permitted by this Agreement, between the date of this Agreement and the Closing Date, the Company will not, without the prior consent of Parent, take any affirmative action, or fail to take any reasonable action within its control, as a result of which any of the changes or events listed in Section 3.15 is likely to occur. 5.4 Required Approvals. ------------------ As promptly as practicable after the date of this Agreement, the Company will make all filings required by Legal Requirements by the Company to be made by them in order to consummate -34- the Contemplated Transactions. Between the date of this Agreement and the Closing Date, the Company will (a) cooperate with Parent with respect to all filings that Parent elects to make or is required by Legal Requirements to make in connection with the Contemplated Transactions, and (b) cooperate with Parent in obtaining the Consents identified in Section 4.2 hereof and (c) information necessary for the filing of the Registration Statement. 5.5 Notification. ------------ Between the date of this Agreement and the Closing Date, the Company will promptly notify Parent in writing if the Company becomes aware of any fact or condition that causes or constitutes a Breach of any of the Company's representations and warranties as of the date of this Agreement, or if the Company becomes aware of the occurrence after the date of this Agreement of any fact or condition that would (except as expressly contemplated by this Agreement) cause or constitute a Breach of any such representation or warranty had such representation or warranty been made as of the time of occurrence or discovery of such fact or condition. Should any such fact or condition require any change in the Disclosure Letter if the Disclosure Letter were dated the date of the occurrence or discovery of any such fact or condition, the Company will promptly deliver to Parent a supplement to the Disclosure Letter specifying such change. During the same period, the Company will promptly notify Parent of the occurrence of any Breach of any covenant of the Company in this Section 5 or of the occurrence of any event that may make the satisfaction of the conditions in Section 7 impossible or unlikely. 5.6 Payment of Indebtedness by Related Persons. ------------------------------------------ Except as expressly provided in this Agreement, the Company will cause all indebtedness owed to the Company by any Principal Seller or any Related Person of any Principal Seller to be paid in full prior to Closing. 5.7 Covenants Regarding Non-Solicitation. ------------------------------------ (a) The Company shall not, directly or indirectly, through any officer, director, Employee, representative or agent of the Company, (i) solicit, initiate or knowingly encourage (including by way of furnishing information or entering into any form of agreement, arrangement or understanding) the initiation of any inquiries or proposals regarding a merger, arrangement, consolidation, sale of assets, reorganization or recapitalization with any party other than Parent and its affiliates (an "Acquisition Proposal"), (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, (iii) withdraw or modify in a manner adverse to Parent the approval of the Board of Directors of the Company of the Contemplated Transactions (iv) approve or recommend any Acquisition Proposal or (v) cause the Company to enter into any agreement related to any Acquisition Proposal; provided, however, that, subject to section 5.8 but notwithstanding the preceding part of this section 5.7(a) and any other provision of this Agreement, nothing shall prevent the Board of Directors of the Company from considering, negotiating, approving, recommending to the Company shareholders or entering into an agreement in respect of an unsolicited bona fide written Acquisition Proposal that the Board of Directors of the Company determines in good faith, after consultation with financial advisors and after receiving an opinion of -35- outside counsel to the effect that it is appropriate that the Board of Directors of the Company take such action in order to discharge properly its fiduciary duties, would, if consummated in accordance with its terms, result in a transaction (x) more favourable to the Company's shareholders than the transaction contemplated by this Agreement and (y) having a value per Share greater than the per share value attributable thereto under the transaction contemplated by this Agreement (any such Acquisition Proposal being referred to herein as a "Superior Proposal"). (b) the Company shall promptly notify Parent, at first orally and then in writing, of all current Acquisition Proposals, and of all future Acquisition Proposals, of which the Company's directors or senior officers are or become aware, or any amendments to the foregoing, or any request for non- public information relating to the Company in connection with an Acquisition Proposal or for access to the properties, books or records of the Company by any Person that informs the Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall include a description of the material terms and conditions of any proposal and provide such details of the proposal, inquiry or contact as Parent may reasonably request including the identity of the Person making such proposal, inquiry or contact. (c) If the Company receives a request for material non-public information from a Person who proposes a bona fide Acquisition Proposal in respect of the Company (the existence and content of which have been disclosed to Parent), and the Board of Directors of the Company determines that such proposal would be likely to be a Superior Proposal pursuant to section 5.7(a) having received the advice referred to therein, then, and only in such case, the Board of Directors of the Company may, subject to the execution by such Person of a confidentiality agreement, provide such Person with access to information regarding the Company; provided, however, that the Person making the Acquisition Proposal shall not be precluded under such confidentiality agreement from making the Acquisition Proposal, and provided further that the Company sends a copy of any such confidentiality agreement to Parent immediately upon its execution and Parent is provided with a list of or copies of the information provided to such Person and immediately provided with access to similar information to which such Person was provided. (d) the Company shall ensure that its Employees and any financial advisors or other advisors or representatives retained by it are aware of the provisions of this section 5.7, and it shall be responsible for any breach of this section 5.7 by its financial advisors or other advisors or representatives. 5.8 Notice by the Company of Superior Proposal Determination; --------------------------------------------------------- Acquisition Proposal Acceptance. -------------------------------- (a) The Company shall not accept, approve, recommend to its shareholders or enter into any agreement in respect of an Acquisition Proposal (an "Acquisition Proposal Acceptance") (other than a confidentiality agreement contemplated by section 5.7(c)) on the basis that it would constitute a Superior Proposal unless (i) it has provided Parent with a copy of the Acquisition Proposal document which the Board of Directors of the Company has determined would be a Superior Proposal, and (ii) five Business Days shall have elapsed from the later of the date Parent received notice of the Company's proposed determination to accept, approve, -36- recommend or enter into an agreement in respect of such Acquisition Proposal, and the date Parent received a copy of the Acquisition Proposal. During such five Business Day period, the Company acknowledges that Parent shall have the opportunity, but not the obligation, to offer to amend the terms of this Agreement. The Board of Directors of the Company will review any offer by Parent to amend the terms of this Agreement in good faith in order to determine, in its discretion in the exercise of its fiduciary duties, whether Parent's offer upon acceptance by the Company would result in the Acquisition Proposal not being a Superior Proposal. If the Board of Directors of the Company so determines, it will enter into an amended agreement with Parent reflecting Parent's amended proposal. If the Board of Directors of the Company continues to believe, in good faith and after consultation with financial advisors and outside counsel, that the Acquisition Proposal is nonetheless a Superior Proposal, it may reject Parent's amended proposal. (b) In the event of an Acquisition Proposal Acceptance or a breach of the Company's obligations in Section 5.7 or Section 5.8, the Company shall pay to Parent, as reimbursement to Parent, $4,500,000 (plus documented out-of-pocket expenses, including attorneys' fees, less any payments made to Parent under Section 11.1) and upon such payment, Parent shall have no other remedy for any breach of this Agreement. 5.9 Best Efforts. ------------ Between the date of this Agreement and the Closing Date, the Company will use its Best Efforts to cause the conditions in Sections 7 and 8 to be satisfied. 5.10 Moral Rights. ------------ The Company shall use its Best Efforts to cause those Employees, independent contractors and agents who have developed Software programs and who are currently employed or contracted by the Company to sign an agreement waiving their moral rights in such Software programs, which waiver shall be in a form acceptable to Parent, acting reasonably. 5.11 Shareholder Approval. -------------------- As soon as practicable following the execution of this Agreement, the Company shall call a special meeting of it shareholders for the purpose of seeking approval of this Agreement and the Transactions. 6. Covenants of Parent. ------------------- 6.1 Approvals of Governmental Bodies. -------------------------------- As promptly as practicable after the date of this Agreement, Parent will, and will cause each of its Related Persons to, make all filings required by Legal Requirements to be made by them to consummate the Contemplated Transactions. Between the date of this Agreement and the Closing -37- Date, Parent will, and will cause each Related Person to, cooperate with the Company with respect to all filings the Company is required by Legal Requirements to make in connection with the Contemplated Transactions, and (ii) cooperate with the Company in obtaining all consents identified in Part 3.2 of the Disclosure Letter; provided that this Agreement will not require Parent to dispose of or make any change in any portion of its business or to incur any other burden to obtain a Governmental Authorization. 6.2 Best Efforts. ------------ Except as set forth in the proviso to Section 6.1, between the date of this Agreement and the Closing Date, Parent will use its Best Efforts to cause the conditions in Sections 7 and 8 to be satisfied. 6.3 SEC Filings. ----------- Parent will, within five (5) business days of the filing thereof, deliver to the Company a true and correct copy of all forms, statements, annual, quarterly and other reports, registration statements and definitive proxy statements filed by Parent with the SEC after the date of this Agreement and prior to the Closing Date. 6.4 Negative Covenant. ----------------- Except as otherwise expressly permitted by this Agreement, between the date of this Agreement and the Closing Date, Parent will not, without the prior consent of the Company, (a) amend or repeal any of its Organizational Documents or (b) declare or pay any dividend or make any other distribution or payment in respect of its capital stock. 6.5 Notification. ------------ Between the date of this Agreement and the Closing Date, Parent will promptly notify the Company in writing if Parent becomes aware of any fact or condition that causes or constitutes a Breach of any of Parent's representations and warranties as of the date of this Agreement, or if the Parent becomes aware of the occurrence after the date of this Agreement of any fact or condition that would (except as expressly contemplated by this Agreement) cause or constitute a Breach of any such representation or warranty had such representation or warranty been made as of the time of occurrence or discovery of such fact or condition. During the same period, Parent will promptly notify the Company of the occurrence of any Breach of any covenant of Parent in this Section 6 or of the occurrence of any event that may make the satisfaction of the conditions in Section 8 impossible or unlikely. 6.6 Payment of Professional Fees. ---------------------------- As promptly as practicable after Closing, Parent will pay or cause the Company to pay all professional fees incurred by the Company in connection with the Transaction. -38- 6.7 Support Agreement and Voting and Exchange Trust Agreement. --------------------------------------------------------- Prior to the Effective Time, Parent shall execute and deliver the Exchangeable Share Support Agreement in the form of Exhibit 6.7(a) (the "Support ------- Agreement") and the Voting and Exchange Trust Agreement in the form of Exhibit - --------- 6.7(b) (the "Voting and Exchange Trust Agreement"). ----------------------------------- 6.8 Registration Statement; Form S-8 Registration Statement. ------------------------------------------------------- (a) For purposes of this Section 6.8, "register," "registered," and "registration" refer to a registration effected by preparing and filing a "Registration Statement" or similar document in compliance with the ----------------------- Securities Act, and the declaration or ordering of effectiveness of such Registration Statement or document, and "Holders" refers to the holders of ------- Exchangeable Shares and Replacement Nonemployee Options in respect of which Registrable Shares may be issued pursuant to the Exchange Registration Statement or, as the case may be, resold pursuant to the Resale Registration Statement. (b) Subject to Section 6.8(c) below, promptly following the execution and delivery of this Agreement by the parties, Parent shall prepare and file a Registration Statement under the Securities Act covering the issuance of the Registrable Shares and shall use its Best Efforts to cause such Registration Statement to become effective (such Registration Statement specifically, the "Exchange Registration Statement"). ------------------------------- (c) In the event that Parent shall have received written notice from the Commission or shall have otherwise determined that the registration of the issuance of the Registrable Shares pursuant to the Exchange Registration Statement is not feasible or is in violation of applicable law, then promptly following the Effective Time, Parent shall prepare and file a Registration Statement covering the resale of the Registrable Shares to the general public and shall use its Best Efforts to cause such Registration Statement to become effective (such Registration Statement specifically, the "Resale Registration ------------------- Statement"). - --------- (d) In connection with any Exchange Registration Statement or Resale Registration Statement, Parent will: (i) Prepare and file with the Commission a Registration Statement with respect to such securities, and use its Best Efforts to cause such Registration Statement to become effective, and prepare and file with the Commission such amendments to such Registration Statement and supplements to the prospectus contained therein as may be necessary to keep such Registration Statement effective until (x) in the case of an Exchange Registration Statement filed pursuant to Section 6.8(b), such time as all the Registrable Shares have been issued by the Company, or (y) in the case of a Resale Registration Statement filed pursuant to Section 6.8(c), four years from the date of effectivesness of such Registration Statement; (ii) Furnish to the Holders such reasonable number of copies of the Registration Statement, the prospectus filed therewith and such other documents as may be reasonably required in order to facilitate the issuance of such securities; -39- (iii) Use its Best Efforts to register or qualify the Registrable Shares under such state securities or blue sky laws of such jurisdictions as the Holders may reasonably request in writing, except that Parent shall not for any purpose be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified; (iv) Notify the Holders, promptly after it shall receive notice thereof, of the time when such Registration Statement has become effective or a supplement to any prospectus forming part of such Registration Statement has been filed; (v) Notify the Holders promptly as to any request by the Commission for the amending or supplementing of such Registration Statement or prospectus or for additional information; (vi) Prepare and promptly file with the Commission and promptly notify the Holders of the filing of such amendment or supplement to such Registration Statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event shall have occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; provided, however, that Parent may delay the filing of any such amendment or supplement (for a period not to exceed 90 days), if Parent shall in good faith determine that such amendment or supplement would require Parent to disclose a material development or potential material development involving Parent, the disclosure of which would have a material adverse effect on Parent; provided, further, that Parent may suspend use of such Registration Statement in such instance or for such time as may be reasonably necessary to update or amend such Registration Statement to correct any untrue statement of a material fact in, or an omission of a material fact from, such Registration Statement; and (vii) Advise the Holders, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for that purpose and promptly use its Best Efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued. (e) All fees, costs and expenses of and incidental to the registration required by this Section 6.8 shall be borne by Parent other than any underwriting discounts or fees (if any) which shall be borne by the Holders. The fees, costs and expenses of registration to be borne by Parent shall include, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel and accountants for Parent, all legal fees and disbursements and other expenses of complying with state securities or blue sky laws of any jurisdictions in which the securities to be offered are to be registered or qualified, the premiums and other costs of policies of insurance against liability (if any) arising out of such public offering. -40- (f) Parent will indemnify and hold harmless each Holder, its directors and officers, and any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or such underwriter within the meaning of the Securities Act, from and against and will reimburse such Holder and each such underwriter and controlling person with respect to, any and all loss, damage, liability, cost and expense to which such Holder or any such underwriter or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, damages, liabilities, costs or expenses are caused by any untrue statement or alleged untrue statement of any material fact contained in such Registration Statement, any prospectus contained therein or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; provided, however, that Parent will not be liable in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Holder, such underwriter or such controlling person in writing specifically for use in the preparation thereof. (g) Each Holder Shares will indemnify and hold harmless Parent, its directors and officers, any controlling person and any underwriter with respect to, any and all loss, damage, liability, cost or expense to which Parent or any controlling person and/or any underwriter may become subject under the Securities Act or otherwise, insofar as such losses, damages, liabilities, costs or expenses are caused by any untrue statement or alleged untrue statement of any material fact contained in such Registration Statement, any prospectus contained therein or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in reliance upon and in strict conformity with written information furnished by such Holder to Parent specifically for use in the preparation thereof. (h) Promptly after receipt by an indemnified party pursuant to the provisions of paragraph (d) or (e) of this Section 6.8 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions such indemnified party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of said paragraph (d) or (e), promptly notify the indemnifying party of the commencement thereof; but the omission to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than hereunder. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided, however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or in addition to those available to the indemnifying party, or if there -41- is a conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to select separate counsel to participate in the defense of such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said paragraph (d) or (e) for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the preceding sentence, (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. (i) In addition, Parent shall use its Best Efforts to cause the Parent Common Shares issuable upon the exercise or conversion of Replacement Employee Options to be registered under the Securities Act on Form S-8. 6.9 Release of Operating Results.. ----------------------------- Parent shall use its Best Efforts to publicly release, as soon as practicable following the end of such month of combined operations, combined operating results of Parent and Acquisition Sub that include the month of operations for the month immediately following the month in which Closing occurs. 6.10 Canadian Securities Compliance. ------------------------------ Parent shall use its Best Efforts to obtain all orders required from the applicable Canadian securities authorities to permit the issuance and first resale of (a) the Exchangeable Shares and Parent Common Shares issued pursuant to the Contemplated Transactions, (b) the Parent Common Shares issued upon exchange of the Exchangeable Shares from time to time, and (c) the Parent Common Shares issued from time to time upon the exercise of the Replacement Options (the "Canadian Securities Orders"), in each case without qualification with or approval of or the filing of any document, including any prospectus or similar document, or the taking of any proceeding with or the obtaining of any further order, ruling or consent from, any Governmental Body or regulatory authority under any Canadian federal, provincial or territorial securities or other laws or pursuant to the rules and regulations of any regulatory authority administering such laws, or the fulfillment of any other legal requirement in any such jurisdiction (other than, with respect to such first resales, any restrictions on transfer by reason of, among other things, a holder being a "control person" of Parent or Acquisition Sub for purposes of Canadian provincial securities laws). -42- 7. Conditions Precedent to Parent's Obligation to Close. ---------------------------------------------------- Parent's obligation to consummate the Transactions and to take the other actions required to be taken by Parent at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Parent, in whole or in part): 7.1 Accuracy of Representations. --------------------------- (a) All of the Company's representations and warranties in this Agreement (considered collectively), and each of these representations and warranties (considered individually), must have been accurate in all material respects as of the date of this Agreement, and must be accurate in all material respects as of the Closing Date as if made on the Closing Date, without giving effect to any supplement to the Disclosure Letter. (b) Each of the Company's representations and warranties in Sections 3.3, 3.4, 3.9, 3.11, and 3.21 must have been accurate in all respects as of the date of this Agreement, and must be accurate in all respects as of the Closing Date as if made on the Closing Date, without giving effect to any supplement to the Disclosure Letter. 7.2 The Company's Performance. ------------------------- (a) All of the covenants and obligations that the Company is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), must have been duly performed and complied with in all material respects. (b) Each of the covenants and obligations in Section 5.4 must have been performed and complied with in all respects. 7.3 Consents. -------- Each of the Consents identified in Part 3.2 of the Disclosure Letter, and each Consent identified in Schedule 4.2, must have been obtained and must be in full force and effect. 7.4 Additional Documents. -------------------- Each of the following documents must have been delivered to Parent: (a) an opinion of Wildeboer Rand Thomson Apps & Dellelce dated the Closing Date, in the form of Exhibit 7.4(a); (b) Employment agreements, each in the form of Exhibit 7.4(b) (the "Key Employee Employment Agreements"), executed by each Key Employee, and ---------------------------------- each such Key Employee Employment Agreement shall be in full force and effect and Parent shall not have received any notice that any Key Employee intends to fail to perform his or her obligations under his or her Key Employee Employment Agreement; -43- (c) from each person who is identified as an "affiliate" of the Company, a Company Affiliate Agreement in the form of Exhibit 7.4(c) (the "Company Affiliate Agreements"), and each such Company Affiliate Agreement shall ---------------------------- be in full force and effect; (d) the Parent shall have received the Deloitte & Touche Pooling Letter and the PricewaterhouseCoopers Poolability Letter; (e) from each Principal Seller, a Principal Seller's Release in the form of Exhibit 7.4(e) (the "Principal Seller's Releases"); --------------------------- (f) from each Employee identified on Schedule C, an executed Noncompetition Agreement in the form of Exhibit 7.4(f) ("Noncompetition -------------- Agreements") the, and each such Noncompetition Agreement shall be in full force - ---------- and effect and Parent shall not have received any notice that any such Employee intends to fail to perform his or her obligations under his or her Noncompetition Agreement; (g) from the trustee for the holders of Shares not exercising Dissent Rights, the Support Agreement, the Escrow Agreement and the Voting and Exchange Trust Agreement; (h) the Canadian Securities Orders, in form and substance reasonably satisfactory to Parent; and (i) from the Company, an executed copy of the Articles of Arrangement. 7.5 No Proceedings. -------------- Since the date of this Agreement, there must not have been commenced or Threatened against Parent, or against any Person affiliated with Parent, any Proceeding (a) involving any challenge to, or seeking damages or other relief in connection with, any of the Contemplated Transactions, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Contemplated Transactions. 7.6 No Claim Regarding Stock Ownership or Sale Proceeds. --------------------------------------------------- Except as set forth on Part 3.1 of the Disclosure Letter, there must not have been made or Threatened by any Person any claim asserting that such Person is the holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any stock of, or any other voting, equity, or ownership interest in, any of the Company. 7.7 No Prohibition. -------------- Neither the consummation nor the performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time), materially contravene, or conflict with, or result in a material violation of, or cause Parent or any Person affiliated with Parent to suffer -44- any material adverse consequence under, (a) any applicable Legal Requirement or Order, or (b) any Legal Requirement or Order that has been published, introduced, or otherwise formally proposed by or before any Governmental Body. 7.8 Shareholder Approval. -------------------- This Agreement and the Arrangement shall have been approved and adopted by the affirmative requisite vote of the shareholders of the Company. 7.9 Canadian Approvals. ------------------ The Company and Parent each shall have filed all notices and information (if any) required under (i) the Investment Canada Act (Canada) and (ii) Part IX of the Competition Act (Canada) and the Parent, acting reasonably, shall be satisfied that the transaction may proceed without approval under either statute or that all such approvals have been obtained. 7.10 Nasdaq Listing. -------------- The Acquisition Shares and the Parent Common Shares issuable upon exercise or conversion of the Replacement Options shall have been approved for listing, subject to notice of issuance, on the Nasdaq National Market. 7.11 Dissent Rights. -------------- Holders of not more than five percent (5%) of the Shares shall have exercised Dissent Rights or other statutory appraisal rights. 7.12 Court Approval. -------------- The Court shall have issued the Interim Order and the Final Order approving the Arrangement in form and substance reasonably satisfactory to Parent and reflecting the terms hereof, and such Final Order shall not have been set aside or modified in any manner unacceptable to Parent on appeal or otherwise. 7.13 Effectiveness of Registration Statement. --------------------------------------- The Exchange Registration Statement shall have been declared effective by the Commission, or Parent shall be reasonably satisfied that effectiveness of the Exchange Registration Statement at the Effective Time is not required under the Securities Act of the rules and regulations thereunder. 8. Conditions Precedent to the Company's Obligation to Close. --------------------------------------------------------- The Company's obligation to consummate the Arrangement and to take the actions required to be taken by the Company at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by the Company, in whole or in part): -45- 8.1 Accuracy of Representations. --------------------------- All of Parent's representations and warranties in this Agreement (considered collectively), and each of these representations and warranties (considered individually), must have been accurate in all material respects as of the date of this Agreement and must be accurate in all material respects as of the Closing Date as if made on the Closing Date. 8.2 Parent's Performance. -------------------- All of the covenants and obligations that Parent is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), must have been performed and complied with in all material respects. 8.3 Consents. -------- Each of the Consents identified in Part 3.2 of the Disclosure Letter must have been obtained and must be in full force and effect. 8.4 Additional Documents. -------------------- Parent must have caused the following documents to be delivered to the Company: (a) an opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, dated the Closing Date, in the form of Exhibit 8.4(a); (b) an opinion of Fasken Campbell Godfrey, Canadian counsel to the Parent, dated the Closing Date, in the form of Exhibit 8.4(b); (c) executed copies of the Articles of Arrangement, the Support Agreement, the Escrow Agreement and the Voting and Exchange Trust Agreement; (d) the Canadian Securities Orders, in form and substance reasonably satisfactory to the Company; and (e) such other documents as the Company may reasonably request for the purpose of (i) enabling their counsel to provide the opinion referred to in Section 7.4(a), (ii) evidencing the accuracy of any representation or warranty of Parent, (iii) evidencing the performance by Parent of, or the compliance by Parent with, any covenant or obligation required to be performed or complied with by Parent, (ii) evidencing the satisfaction of any condition referred to in this Section 8, or (v) otherwise facilitating the consummation of any of the Contemplated Transactions. -46- 8.5 No Proceedings. -------------- Since the date of this Agreement, there must not have been commenced or Threatened against the Company, or against any Person affiliated with the Company, any Proceeding (a) involving any challenge to, or seeking damages or other relief in connection with, any of the Contemplated Transactions, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Contemplated Transactions. 8.6 No Injunction. ------------- There must not be in effect any Legal Requirement or any injunction or other Order that (a) prohibits the consummation of the Arrangement, and (b) has been adopted or issued, or has otherwise become effective, since the date of this Agreement. 8.7 Shareholder Approval. -------------------- This Agreement and the Transactions shall have been approved and adopted by the affirmative requisite vote of the shareholders of the Company. 8.8 Canadian Approvals. ------------------ The Company and Parent each shall have filed all notices and information (if any) required under (i) the Investment Canada Act (Canada) and (ii) Part IX of the Competition Act (Canada) and the Parent, acting reasonably, shall be satisfied that the transaction may proceed without approval under either statute or that all such approvals have been obtained. 8.9 Nasdaq Listing. -------------- The Acquisition Shares and the Parent Common Shares issuable upon the exercise or conversion of the Replacement Options shall have been approved for listing, subject to notice of issuance, on the Nasdaq National Market. 8.10 Court Approval. -------------- The Court shall have issued the Interim Order and the Final Order approving the Arrangement in form and substance reasonably satisfactory to the Company and reflecting the terms hereof, and such Final Order shall not have been set aside or modified in any manner unacceptable to the Company on appeal or otherwise. 8.11 Effectiveness of Registration Statement. --------------------------------------- The Exchange Registration Statement shall have been declared effective by the Commission, or Parent shall be reasonably satisfied that effectiveness of the Exchange Registration Statement at the Effective Time is not required under the Securities Act of the rules and regulations thereunder. -47- 9. Termination. ----------- 9.1 Termination Events. ------------------ This Agreement may, by notice given prior to or at the Closing, be terminated: (a) by either Parent, on the one hand, or the Company, on the other, if a material Breach of any provision of this Agreement has been committed by the other party and such Breach has not been waived; (b) (i) by Parent if any of the conditions in Section 7 has not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Parent to comply with its obligations under this Agreement) and Parent has not waived such condition on or before the Closing Date; or (ii) by the Company, if any of the conditions in Section 8 has not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of the Company to comply with its obligations under this Agreement) and the Company has not waived such condition on or before the Closing Date; (c) by Parent if (i) the Company's Board of Directors withdraws or modifies its recommendation of the Transactions (other than for the purpose of accepting an Acquisition Proposal or by reason of Parent's failure to comply with its obligations under this Agreement), (ii) an Acquisition Proposal is accepted by the Company, (iii) the Company willfully breaches this Agreement, (iv) the Company's shareholders do not approve the Arrangement on or before September 30, 1999 or (v) shareholders of the Company owning more than five percent (5%) of the Company Shares exercise Dissent Rights or other statutory appraisal rights; (d) by the Company (i) if Parent willfully breaches this Agreement or Parent's Board of Directors withdraws or modifies its recommendation of the Transactions (other than by reason of the failure of the Company to comply with its obligations under this Agreement), or (ii) upon (x) the determination of the Company's Board of Directors that an Acquisition Proposal constitutes a Superior Proposal, and (y) payment by the Company of the amount set forth in Section 5.8(b) hereof; (e) by mutual consent of Parent and the Company; or (f) by either Parent or the Company if the Closing has not occurred (other than through the failure of any party seeking to terminate this Agreement to comply fully with its obligations under this Agreement) on or before September 30, 1999, or such later date as the parties may agree upon. 9.2 Effect of Termination. --------------------- Each party's right of termination under Section 9.1 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination will not be an -48- election of remedies. If this Agreement is terminated pursuant to Section 9.1, all further obligations of the parties under this Agreement will terminate, except that the obligations in Sections 11.1, 11.2 and 11.3 will survive and the rights and obligations of the parties under Sections 5.7 and 5.8 shall survive for ninety (90) days beyond the date this Agreement is terminated; provided, however, that if this Agreement is terminated by a party because of the Breach of the Agreement by the other party or because one or more of the conditions to the terminating party's obligations under this Agreement is not satisfied as a result of the other party's failure to comply with its obligations under this Agreement, the terminating party's right to pursue all legal remedies will survive such termination unimpaired, subject to the provisions of Section 11.1 hereof. 10. Escrow Fund. ----------- 10.1 Escrow Shares. ------------- As soon as practicable after the Effective Time, 10% of the Exchangeable Shares and 10% of the Parent Common Shares issuable to the holders of Preferred Shares pursuant to the Plan of Arrangement (collectively the "Escrow Shares") ------------- shall be registered in the name of, and be deposited with Montreal Trust Company of Canada (or other institution selected by Parent with the reasonable consent of the Company) as escrow agent (the "Escrow Agent"), such deposit to constitute ------------ the Escrow Fund and to be governed by the terms set forth herein and in the Escrow Agreement attached hereto as Exhibit 10.1 (the "Escrow Agreement"). The ---------------- Escrow Fund (but only up to a maximum of the value of the Escrow Shares) shall be available to compensate Parent for any loss, liability, claim, damage (including incidental and consequential damages), expense (including costs of investigation and defense and reasonable attorneys' fees) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), ------- arising, directly or indirectly, from or in connection with: (a) any Breach of any representation or warranty made by the Company in this Agreement as if such representation or warranty were made on and as of the Closing Date, other than any such Breach that is disclosed in a supplement to the Disclosure Letter; (b) any Breach by the Company of any covenant or obligation of the Company in this Agreement that is not waived on or prior to Closing; or (c) resolution or settlement of any Proceeding arising out of the claims described in Part 3.14(b) of the Disclosure Letter. Parent and its affiliates shall act in good faith and in a commercially reasonable manner to mitigate any Damages they may suffer. Any claim for indemnification for Damages hereunder shall be offset or reduced by (i) any tax benefit received by Parent or its affiliates as a result of such Damages and (ii) in the case of third-party claims, by any amount actually recovered by Parent or its affiliates pursuant to counterclaims made by any of them directly relating to the facts giving rise to such third-party claims. Parent and Company each acknowledge that such Damages, if any, would relate to unresolved contingencies existing at the Closing, which if resolved at the Closing would have led to -49- a reduction in the total number of shares Parent would have agreed to issue in connection with the Contemplated Transactions. Resort to the Escrow Fund shall be the exclusive remedy of Parent after the Closing for any such breaches and misrepresentations. 10.2 Damage Threshold. ---------------- Notwithstanding the foregoing, Parent may not receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 10.4 below) identifying Damages the aggregate amount of which exceeds $100,000 has been delivered to the Escrow Agent as provided in Section 10.4 below and such amount is determined pursuant to this Article 10 to be payable, in which case Parent shall receive shares equal in value to the full amount of the Damages; provided, however, that in no event shall Parent receive more than the Escrow Shares. 10.3 Escrow Period. ------------- The Escrow Period shall terminate with respect to the Escrow Shares upon the earlier to occur of: (i) the first anniversary of the Closing Date, or (ii) the issuance of Parent's audited financial statements for the year ending December 31, 1999, which include the results of the Company; provided, however, that a portion of the Escrow Shares, which, in the reasonable judgment of Parent, subject to the objection of the Company Agent (as defined in Section 10.7 below) and the subsequent arbitration of the matter in the manner provided in Section 10.6 hereof, are necessary to satisfy any unsatisfied claims specified in any Officer's Certificate theretofore delivered to the Escrow Agent prior to termination of the Escrow Period with respect to the facts and circumstances existing prior to expiration of the Escrow Period, shall remain in the Escrow Fund until such claims have been resolved. Any and all releases of the Escrow Shares upon termination of the Escrow Period shall be released to the Company shareholders on a pro rata basis according to such shareholder's ownership of Shares at the Closing Date. 10.4 Claims upon Escrow Fund. ----------------------- (a) Upon receipt by the Escrow Agent on or before the last day of the Escrow Period of a certificate signed by the Chief Executive Officer, the President, the Chief Financial Officer or the General Counsel of Parent (an "Officer's Certificate"): (i) stating that Damages exist in an aggregate amount greater than $100,000, and (ii) specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid, or properly accrued or arose, the nature of the misrepresentation, breach of warranty or claim to which such item is related, the Escrow Agent shall, subject to the provisions of Article 10 hereof, deliver to Parent out of the Escrow Fund, as promptly as practicable, Exchangeable Shares whose value is equal to the amount of the Damage. -50- (b) For the purpose of compensating Parent for its Damages pursuant to this Agreement, the Exchangeable Shares in the Escrow Fund shall be valued at a price per share equal to the closing price of one Parent Common Share on the date immediately prior to the Closing Date (as adjusted for stock splits, reverse stock splits and similar events). 10.5 Objections to Claims. -------------------- At the time of delivery of any Officer's Certificate to the Escrow Agent, a duplicate copy of such Officer's Certificate shall be delivered to the Company Agent (defined in Section 10.7 below) and for a period of thirty (30) days after such delivery, the Escrow Agent shall make no delivery of Exchangeable Shares pursuant to Section 10.4 hereof unless the Escrow Agent shall have received written authorization from the Company Agent to make such delivery. After the expiration of such thirty (30) day period, the Escrow Agent shall make delivery of the Exchangeable Shares in accordance with Section 10.4 hereof, provided that no such payment or delivery may be made if the Company Agent shall object in a written statement to the claim made in the Officer's Certificate, and such statement shall have been delivered to the Escrow Agent and to Parent prior to the expiration of such thirty (30) day period. 10.6 Resolution of Conflicts; Arbitration. ------------------------------------ (a) In case the Company Agent shall so object in writing to any claim or claims by Parent made in any Officer's Certificate, Parent shall have forty-five (45) days to respond in a written statement to the objection of the Company Agent. If after such forty-five (45) day period there remains a dispute as to any claims, the Company Agent and Parent shall attempt in good faith for sixty (60) days to agree upon the rights of the respective parties with respect to each of such claims. If the Company Agent and Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute the Exchangeable Shares from the Escrow Fund in accordance with the terms thereof. (b) If no such agreement can be reached after good faith negotiation, either Parent or the Company Agent may, by written notice to the other, demand arbitration of the matter unless the amount of the damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and in either such event the matter shall be settled by arbitration conducted by three arbitrators. Within fifteen (15) days after such written notice is sent, Parent and the Company Agent shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of the arbitrators as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement, and notwithstanding anything in Section 10.6 hereof, the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance therewith. (c) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in King County, Washington -51- under the commercial rules then in effect of the American Arbitration Association. For purposes of this Section 10.6(c), in any arbitration hereunder in which any claim or the amount thereof stated in the Officer's Certificate is at issue, Parent shall be deemed to be the Non-Prevailing Party unless the arbitrators award Parent more than one-half (1/2) of the amount in dispute, plus any amounts not in dispute; otherwise, the Company shareholders for whom the Exchangeable Shares otherwise issuable to them have been deposited in the Escrow Fund shall be deemed to be the Non-Prevailing Party. The Non-Prevailing Party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including without limitation, attorneys' fees and costs, reasonably incurred by the other party to the arbitration. 10.7 Company Agent. ------------- (a) Omaya Elguindi shall be constituted and appointed as agent ("Company Agent") for and on behalf of the Company shareholders to give and receive notices and communications, to authorize delivery to Parent of the Exchangeable Shares in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Company Agent for the accomplishment of the foregoing. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time upon not less than 10 days' prior written notice to Parent. No bond shall be required of the Company Agent, and the Company Agent shall receive no compensation for his services. Notices or communications to or from the Company Agent shall constitute notice to or from each of the Company's shareholders. (b) The Company Agent shall not be liable for any act done or omitted hereunder, as the Company Agent while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company shareholders shall severally indemnify the Company Agent and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Company Agent and arising out of or in connection with the acceptance or administration of his duties hereunder. (c) The Company Agent shall have reasonable access to information about the Company and the reasonable assistance of the Company's and Acquisition Sub's officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Company Agent shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). 10.8 Actions of the Company Agent. ---------------------------- A decision, act, consent or instruction of the Company Agent shall constitute a decision of all Company shareholders for whom Exchangeable Shares otherwise issuable to them are deposited in the Escrow Fund and shall be final, binding and conclusive upon each such Company shareholder, and the Escrow Agent and Parent may rely upon any decision, act, consent or instruction of the -52- Company Agent as being the decision, act, consent or instruction of each and every such Company shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Company Agent. 10.9 Third-Party Claims. ------------------ In the event Parent becomes aware of a third-party claim which Parent believes may result in a demand against the Escrow Fund, Parent shall notify the Company Agent of such claim, and the Company Agent and the Company shareholders for whom Exchangeable Shares otherwise issuable to them are deposited in the Escrow Fund shall be entitled, at their expense, to participate in any defense of such claim. Parent shall have the right in it sole discretion to settle any such claim; provided, however, that Parent may not affect the settlement of any such claim without the consent of the Company Agent, which consent shall not be unreasonably withheld. In the event that the Company Agent has consented to any such settlement, the Company Agent shall have no power or authority to object under Section 10.5 or any other provision of this Article X to the amount of any claim by Parent against the Escrow Fund for indemnity with respect to such settlement. 11. General Provisions. ------------------ 11.1 Expenses and Liability. ---------------------- (a) Except as otherwise expressly provided in this Agreement, each party to this Agreement will bear its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the Contemplated Transactions, including all fees and expenses of agents, representatives, counsel, and accountants. (b) In the event of termination of this Agreement, the obligation of each party to pay its own expenses will be subject to any rights of such party arising from a breach of this Agreement by another party. In addition, (i) in the event of a termination of this Agreement by Parent pursuant to Section 9.1(c)(i) or 9.1(c)(iii), the Company shall promptly, but in any event within three (3) days of such termination, pay Parent the amount of $2,000,000 (plus documented out-of-pocket expenses of Parent) as reimbursement for expenses incurred by Parent in connection with the Contemplated Transactions, and (ii) in the event of a termination of this Agreement by the Company pursuant to Section 9.1(d), Parent shall promptly, but in any event within three (3) days of such termination, pay the Company the amount of $2,000,000 (plus documented out-of-pocket expenses of the Company) (which payment may be by means of cancellation of indebtedness) as reimbursement for expenses incurred by the Company in connection with the Contemplated Transactions. (c) The liability of either party for damages with respect to any breach of any representation, warranty or covenant if the Closing does not occur shall be limited to an amount equal to $4,500,000 (plus documented out-of- pocket expenses, less any amount that may be payable pursuant to Section 11.1(b)). -53- 11.2 Public Announcements. -------------------- Any public announcement or similar publicity with respect to this Agreement or the Contemplated Transactions will be issued, if at all, at such time and in such manner as Parent determines. Unless consented to by Parent in advance or required by Legal Requirements, prior to the Closing the Company shall keep this Agreement strictly confidential and may not make any disclosure of this Agreement to any Person other than Employees and Company shareholders. The Company and Parent will consult with each other concerning the means by which the Company's Employees, customers, and suppliers and others having dealings with the Company will be informed of the Contemplated Transactions, and Parent will have the right to be present for any such communication. 11.3 Confidentiality. --------------- Between the date of this Agreement and the Closing Date, Parent, and the Company will maintain in confidence, and will cause the directors, officers, employees, agents, and advisors of Parent and the Company to maintain in confidence, any information furnished by one party to another party in connection with this Agreement or the Contemplated Transactions, unless (a) such information is already known to such party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such party, (b) the use of such information is necessary or appropriate in making any filing or obtaining any consent or approval required for the consummation of the Contemplated Transactions, or (c) the furnishing or use of such information is required by or necessary or appropriate in connection with legal proceedings. If the Contemplated Transactions are not consummated, each party will return or destroy as much of such written information as the other party may reasonably request. 11.4 Notices. ------- All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party may designate by notice to the other parties): The Company: INEX Corporation ----------- 20 Toronto Street Suite 400 Toronto, Ontario M5C 2B8 Attention: Omaya Elguindi Facsimile No.: (416) 214-4675 with a copy to: Wildeboer Rand Thomson Apps & Dellelce -54- Suite 810, P.O. Box 4 1 First Canadian Place Toronto, Ontario M5X 1A9 Attention: Rory Cattanach, Esq. Facsimile No.: (416) 361-1790 Parent: InfoSpace.com, Inc. ------ 15375 N.E. 90/th/ Street Redmond, Washington 98052 Attention: Ellen B. Alben, Esq. Facsimile No.: (425) 883-4846 with a copy to: Wilson Sonsini Goodrich & Rosati, P.C. 5300 Carillon Point Kirkland, Washington 98033 United States of America Attention: Patrick J. Schultheis, Esq. Richard C. Sohn, Esq. Facsimile No.: (425) 576-5899 and a copy to: Fasken Campbell Godfrey 4200 TD Bank Tower P.O. Box 20, Stn. Toronto Dom. Toronto, Ontario M5K 1N6 Attention: C. Ian Kyer, Esq. Facsimile No.: (416) 366-8381 11.5 Jurisdiction; Service of Process. -------------------------------- Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the parties in the United States District Court for the Western District of Washington, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world. 11.6 Further Assurances. ------------------ The parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement. -55- 11.7 Waiver. ------ The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement. 11.8 Entire Agreement and Modification. --------------------------------- This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. 11.9 Disclosure Letter. ----------------- (a) The disclosures in the Disclosure Letter, and those in any Supplement thereto, must relate only to the representations and warranties in the Section of the Agreement to which they expressly relate and not to any other representation or warranty in this Agreement. (b) In the event of any inconsistency between the statements in the body of this Agreement and those in the Disclosure Letter (other than an exception expressly set forth as such in the Disclosure Letter with respect to a specifically identified representation or warranty), the statements in the body of this Agreement will control. 11.10 Assignments, Successors, and No Third-Party Rights. -------------------------------------------------- Neither party may assign any of its rights under this Agreement without the prior consent of the other parties except that Parent may assign any of its rights under this Agreement to any Subsidiary of Parent, provided that the Parent continues to be liable for its obligations hereunder. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or -56- any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and assigns. 11.11 Severability. ------------ If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. 11.12 Section Headings, Construction. ------------------------------ The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to "Section" or "Sections" refer to the corresponding Section or Sections of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms. 11.13 Time of Essence. --------------- With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence. 11.14 Governing Law. ------------- This Agreement will be governed by the laws of the State of Delaware without regard to conflicts of laws principles. 11.15 Counterparts. ------------ This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. -57- IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above. PARENT By: /s/ Bernee D. L. Strom ----------------------------------------- Name: Bernee D. L. Strom --------------------------------------- Title: President and Chief Operating Officer -------------------------------------- COMPANY By: /s/ Omaya Elguindi ----------------------------------------- Name: Omaya Elguindi --------------------------------------- Title: Chairman -------------------------------------- [Signature page to Agreement and Plan of Acquisition and Arrangement] SCHEDULE A Key Employees Alex Barrotti Martin Tarvydas Mark Sandori Ivan Chachkov Di Ming Nip Wai Chi (Frank) Siu SCHEDULE B Alex Barrotti Rory Cattanach Peter Chambers Omaya Elguindi Laurence Gutcher Martin Tarvydas Christian Wedell SCHEDULE C Paolo Illing Mark Dykun Roger Hauk EX-4.1 3 CERTIFICATE OF THE POWERS EXHIBIT 4.1 CERTIFICATE OF THE POWERS, DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES A PREFERRED STOCK OF INFOSPACE.COM, INC. Pursuant to Section 151(g) of the General Corporation Law of the State of Delaware We, Bernee D.L. Strom and Ellen B. Alben, the President and the Secretary, respectively, of InfoSpace.com, Inc., a Delaware corporation (the "Company"), in accordance with the provisions of Section 103 of the General Corporation Law of the State of Delaware (the "DGCL"), Do Hereby Certify that, pursuant to the provisions of Section 151(g) of the DGCL, the following resolutions were duly adopted by the Board of Directors of the Company and pursuant to authority conferred upon the Board of Directors by the provisions of the Amended and Restated Certificate of Incorporation of the Company (the "Certificate of Incorporation"), the Board of Directors of the Company, on August __, 1999, adopted resolutions providing for the issuance of a series of Preferred Stock of the Company and fixing the relative powers, designations, preferences, rights, qualifications, limitations and restrictions of such stock. These resolutions are as follows: "Resolved, that pursuant to authority expressly granted to and vested in the Board of Directors of the Company by the provisions of the Certificate of Incorporation, the issuance of a series of Preferred Stock of the Company to be designated "Series A Preferred Stock," par value $0.0001 per share, which shall consist of one of the 15,000,000 shares of Preferred Stock which the Company now has authority to issue, be, and the same hereby is, authorized, and the Board hereby fixes the powers, designations, preferences and relative, participating, optional and other rights, and the qualifications, limitations and restrictions thereof, of the sole share of such series (in addition to the powers, designations, preferences and relative, participating, optional or other rights, and the qualifications, limitations or restrictions thereof, set forth in the Certificate of Incorporation which may be applicable to the Preferred Stock of this series) as follows: I. Authorized Number and Designation. One share of the Preferred Stock, $0.0001 par value per share, of the Company is hereby constituted as a series of the Preferred Stock designated Series A Preferred Stock, $0.0001 par value (the "Series A Preferred"). II. Dividends and Distributions. The holder of Series A Preferred shall not be entitled to receive any dividends declared and paid by the Company. III. Voting Rights. Except as otherwise required by law or by the Certificate of Incorporation (i) the holder of record of the sole share of Series A Preferred shall have a number of votes equal to the number of votes that the holders (the "Holders") of the outstanding Exchangeable Non-Voting Shares ("Exchangeable Shares") of an indirect wholly- owned subsidiary of the Company ("Acquisition Sub"), from time to time, would be entitled to if all such Exchangeable Shares were exchanged by the Holders for shares of the Common Stock of the Company ("Common Stock") pursuant to the terms of the Exchangeable Shares in each case for the election of directors, on all matters submitted to a vote of the stockholders of the Company, and with respect to all written consents sought by the Company from its shareholders ("Voting Rights"); (ii) the holder of record of the sole share of Series A Preferred shall not have the Voting Rights with respect to the Exchangeable Shares owned by the Company, the Company's subsidiaries or any person or entity directly or indirectly controlled by or under common control with the Company prior to the date of filing hereof); and (iii) in respect of all matters concerning the voting of shares and all written consents sought by the Company from its shareholders, the Series A Preferred and the Common Stock shall vote as a single class. IV. Liquidation Preference. Upon any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, and subject to any prior rights of holders of shares of Preferred Stock ranking senior to the Series A Preferred, the holder of the share of Series A Preferred shall be paid an amount equal to $1.00, together with payment to any class of stock ranking equally with the Series A Preferred, and before payment shall be made to the holders of any stock ranking on liquidation junior to the Series A Preferred (such amount payable with respect to the Series A Preferred being referred to as the "Series A Preferred Liquidation Preference Payment"). V. Ranking. The Series A Preferred shall rank junior to all other series of the Company's Preferred Stock as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise. VI. Other Provisions. (a) Pursuant to the terms of that certain Agreement and Plan of Acquisition and Arrangement, dated as of August __, 1999, by and between the Company and INEX Corporation, an Ontario company ("INEX"), one share of Series A Preferred is being issued to the trustee (the "Trustee") under the Voting and Exchange Trust Agreement, dated as of August __, 1999 by and among the Company, Acquisition Sub and the Trustee. (b) The holder of the sole share of Series A Preferred is entitled to exercise the voting rights attendant thereto in such manner as such holder desires. (c) At such time as the Series A Preferred has no votes attached to it because there are no Exchangeable Shares outstanding which are not owned by the Company, any of its subsidiaries or any person directly or indirectly controlled by or under common control of the Company, the Series A Preferred shall be cancelled. Resolved Further, that the Chief Executive Officer, President or any Vice President and the Secretary or any Assistant Secretary of the Company be, and they hereby are, authorized and directed to prepare and file (or cause to be prepared and filed) a Certificate of the Powers, Designations, Preferences and Rights in accordance with the foregoing resolution and the provisions of Delaware law and to take such actions as they may deem necessary or appropriate to carry out the intent of the foregoing resolutions." -2- In Witness Whereof, we have executed and subscribed to this Certificate and do hereby affirm the foregoing as true under the penalties of perjury this ___ day of ____, 1999. InfoSpace.Com, Inc. __________________________________________ Bernee D.L. Strom President and Chief Operating Officer __________________________________________ Ellen B. Alben Vice President, Legal and Business Affairs and Secretary -3- EX-5.1 4 OPINION OF WILSON SONSINI GOODRICH & ROSATI EXHIBIT 5.1 Wilson Sonsini Goodrich & Rosati 5300 Carillon Point Kirkland, Washington 98033 August 31, 1999 InfoSpace.com, Inc. 15375 N.E. 90th Street Redmond, Washington 98052 RE: REGISTRATION STATEMENT ON FORM S-1 Ladies and Gentlemen: We are acting as counsel for InfoSpace.com, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing of a Registration Statement on Form S-1 (the "Registration Statement") with the Securities and Exchange Commission under the Securities Act of 1933, as amended. The Registration Statement relates to 746,392 shares of the Company's common stock, $.0001 par value per share (the "Shares"). In connection herewith, we have examined and relied without independent investigation as to matters of fact upon such certificates of public officials, such statements and certificates of officers of the Company and originals or copies certified to our satisfaction of the Registration Statement, the Certificate of Incorporation and By laws of the Company as amended and now in effect, proceedings of the Board of Directors of the Company and such other corporate records, documents, certificates and instruments as we have deemed necessary or appropriate in order to enable us to render this opinion. In rendering this opinion, we have assumed the genuineness of all signatures on all documents examined by us, the due authority of the parties signing such documents, the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. Based upon and subject to the foregoing, it is our opinion that the issuance of the Shares has been duly authorized by all requisite corporate action of the Company, and that the Shares, when issued in accordance with such authorization, will be legally issued and will be fully paid and non-assessable shares of Common Stock of the Company. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Wilson Sonsini Goodrich & Rosati, P.C. EX-21.1 5 SUBSIDIARIES OF THE REGISTRANT EXHIBIT 21.1 DESCRIPTION: SUBSIDIARIES OF THE REGISTRANT EXHIBIT 21.1 LIST OF SUBSIDIARIES OF THE REGISTRANT InfoSpace Investments, Ltd., a UK corporation. Outpost Network, Inc., a Washington corporation. InfoSpaceCanada.com, Inc., a Delaware corporation. InfoSpace.com Canada Holdings Inc., an Ontario corporation. InfoSpace.com Nova Scotia Company, a Nova Scotia unlimited liability company. EX-23.1 6 CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the use in this Registration Statement of InfoSpace.com, Inc. on Form S-1 of our report dated February 24, 1999, August 13, 1999 as to Note 14, appearing in the Prospectus, which is part of this Registration Statement, and to the reference to us under the headings "Selected Consolidated Financial Data" and "Experts" in such Prospectus. /s/ DELOITTE & TOUCHE LLP Seattle, Washington August 31, 1999 EX-23.2 7 CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the use in this Registration Statement of InfoSpace.com, Inc. on Form S-1 of our report dated February 11, 1999 (except for note 12, which is as of August 13, 1999) relating to the financial statements of INEX Corporation, which appear in such Registration Statement. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Chartered Accountants Toronto, Canada August 31, 1999 EX-99.1 8 FORM OF PLAN OF ARRANGEMENT EXHIBIT 99.1 PLAN OF ARRANGEMENT FOR INEX CORPORATION AND INFOSPACE.COM CANADA HOLDINGS INC. PLAN OF ARRANGEMENT UNDER SECTION 182 OF THE BUSINESS CORPORATIONS ACT ARTICLE I INTERPRETATION 1.1 Definitions In this Plan of Arrangement, unless there is something in the subject matter or context inconsistent therewith, the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have corresponding meanings: "Arrangement" means the arrangement under section 182 of the OBCA on the terms and subject to the conditions set out in this Plan of Arrangement, subject to any amendments or variations thereto made in accordance with the Plan of Acquisition or Article 6 hereof or made at the direction of the Court in the Final Order; "Arrangement Resolution" means the special resolution passed by the holders of each of the INEX Common Shares and INEX Preference Shares, each voting separately as a class, at the INEX Meeting; "Articles of Arrangement" means the articles of arrangement of INEX and InfoSpace Canada in respect of the Arrangement, required by the OBCA to be sent to the Director after the Final Order is made; "Business Day" means any day on which commercial banks are open for business in Seattle, Washington and Toronto, Ontario, other than a Saturday, a Sunday or a day observed as a holiday in Toronto, Ontario under the laws of the Province of Ontario or the federal laws of Canada or in Seattle under the laws of the State of Washington or the federal laws of the United States of America; "Certificate" means the certificates of arrangement for INEX and InfoSpace Canada giving effect to the Arrangement, issued pursuant to section 183 of the OBCA after the Articles of Arrangement have been filed; "Circular" means the notice of the INEX Meeting and accompanying management information circular to be sent to holders of INEX Shares in connection with the INEX Meeting; "Court" means the Ontario Superior Court of Justice; "Current Market Price" has the meaning ascribed thereto in the Exchangeable Share Provisions; -2- "Depositary" means Montreal Trust Company of Canada at its offices set out in the Letter of Transmittal and Election Form; "Director" mean the Director appointed under Section 278 of the OBCA; "Dissent Procedures" has the meaning set out in section 3.1; "Dissenting Shareholder" means a holder of INEX Shares who dissents in respect of the Arrangement in strict compliance with the Dissent Procedures; "Dividend Amount" has the meaning ascribed thereto in section 5.1(a); "Effective Date" means the date shown on the Certificate; "Effective Time" means 12:01 a.m. on the Effective Date; "Election Deadline" means 5:00 p.m. (local time) at the place of deposit on September 9, 1999; "Escrow Agreement" has the meaning ascribed thereto in Section 2.2(g); "Exchange Ratio" means the ratio of (i) 0.20405 Exchangeable Shares or InfoSpace Common Shares for each INEX Common Share, and (ii) 0.20405 InfoSpace Common Shares for INEX Preferred Share; "Exchangeable Elected Share" means any INEX Common Share the registered holder of which shall have elected, in a duly completed Letter of Transmittal and Election Form deposited with the Depositary no later than the Election Deadline, to transfer to InfoSpace Canada under the Arrangement for a fraction of an Exchangeable Share or that is deemed to be an Exchangeable Elected Share pursuant to section 2.2(c); "Exchangeable Share" means a share in the class of non-voting exchangeable shares in the capital of InfoSpace Canada; "Exchangeable Share Provisions" means the rights, privileges, restrictions and conditions attaching to the Exchangeable Shares, which rights, privileges, restrictions and conditions shall be substantially as set forth, in Schedule "1" hereto; "Exempt Share Voting Event" and "Exempt Exchangeable Share Voting Event" each have the meaning ascribed thereto in the Exchangeable Share Provisions; "Final Order" means the final order of the Court approving the Arrangement; "INEX" means INEX Corporation, a corporation existing under the laws of Ontario; "INEX Common Shares" means the outstanding Common Shares in the capital of INEX; -3- "INEX Meeting" means the special meeting of the holders of INEX Shares (including any adjournment thereof) convened as provided by the Interim Order to consider, and if deemed advisable, approve the Arrangement; "INEX Options" means the INEX common share purchase options granted under INEX's Employee Stock Option Plan, an INEX compensation option agreement, the INEX special warrants, INEX common share purchase warrants and the INEX convertible debentures, as amended, outstanding and unexercised on the Effective Date; "INEX Preference Shares" means the Class "A" Preference Shares of INEX of which one series of 240,271 shares has been created and is designated as Class "A" Preference Shares, Series 1; "INEX Shares" means collectively the INEX Common Shares and the INEX Preference Shares; "InfoSpace" means InfoSpace.com, Inc., a corporation existing under the laws of the State of Delaware; "InfoSpace Canada" means InfoSpace.com Canada Holdings Inc., a corporation existing under the laws of the Province of Ontario; "InfoSpace Common Share" means a share of common stock, par value U.S. $0.0001, in the capital of InfoSpace; "InfoSpace Control Transaction" has the meaning ascribed thereto in the Exchangeable Share Provisions; "InfoSpace Elected Share" means any INEX Common Share that the holder shall have elected, in a duly completed Letter of Transmittal and Election Form deposited with the Depositary no later than the Election Deadline, to transfer to InfoSpace Nova Scotia under the Arrangement for a fraction of an InfoSpace Common Share; "InfoSpace Nova Scotia" means InfoSpace.com Nova Scotia Company, an unlimited liability company existing under the laws of the Province of Nova Scotia; "Interim Order" means the interim order of the Court made in connection with the process for obtaining shareholder approval of the Arrangement and related matters; "ITA" means the Income Tax Act (Canada); "Letter of Transmittal and Election Form" means the Letter of Transmittal and Election Forms for use by holders of INEX Common Shares and INEX Preferred Shares, each in the form accompanying the Circular; "Liquidation Call Purchase Price" has the meaning ascribed thereto in section 5.1(a); "Liquidation Call Right" has the meaning ascribed thereto in section 5.1(a); -4- "Liquidation Date" has the meaning ascribed thereto in the Exchangeable Share Provisions; "Meeting Date" means the date of the INEX Meeting; "OBCA" means the Business Corporations Act (Ontario); "Person" includes any individual, firm, partnership, joint venture, venture capital fund, association, trust, trustee, executor, administrator, legal personal representative, estate, group, body corporate, corporation, unincorporated association or organization, government body, syndicate or other entity, whether or not having legal status; "Plan of Acquisition" means the agreement and plan of acquisition and arrangement made as of August 13, 1999 between InfoSpace.com, Inc. and INEX Corporation, as amended, supplemented and/or restated in accordance therewith prior to the Effective Date, providing for, among other things, the Arrangement; "Redemption Call Purchase Price" has the meaning ascribed thereto in section 5.2(a); "Redemption Call Right" has the meaning ascribed thereto in section 5.2(a); "Redemption Date" has the meaning ascribed thereto in the Exchangeable Share Provisions; "Replacement Option" has the meaning ascribed thereto in section 2.2(e); "Special Voting Share" means the share of Special Voting Stock of InfoSpace having substantially the rights, privileges, restrictions and conditions described in the Voting and Exchange Trust Agreement; "Transfer Agent" has the, meaning ascribed thereto in section 5.1(b); "Trustee" means Montreal Trust Company of Canada; and "Voting and Exchange Trust Agreement" has the meaning ascribed thereto in the Exchangeable Share Provisions. 1.2 Sections and Headings The division of this Plan of Arrangement into sections and the insertion of headings are for reference purposes only and shall not affect the interpretation of this Plan of Arrangement. Unless otherwise indicated, any reference in this Plan of Arrangement to a section or an exhibit refers to the specified section of or exhibit to this Plan of Arrangement. 1.3 Number, Gender and Persons In this Plan of Arrangement, unless the context otherwise requires, words in the singular number include the plural and vice versa and words in one gender include all genders. -5- ARTICLE 2 ARRANGEMENT 2.1 Binding Effect This Plan of Arrangement shall become effective at, and be binding at and after, the Effective Time on (i) INEX, (ii) InfoSpace Nova Scotia and InfoSpace Canada, (iii) all holders of INEX Common Shares, (iv) all holders of INEX Preference Shares, (v) all holders of Exchangeable Shares, and (vi) all holders of INEX Options. 2.2 Arrangement Commencing at the Effective Time, the following shall occur and shall be deemed to occur in the following order without any further act or formality: (a) each InfoSpace Elected Share shall be transferred without any further act or formality on the part of the holder thereof from such holder to InfoSpace Nova Scotia in exchange for that number of fully paid and non-assessable InfoSpace Common Shares that equals the product obtained by multiplying the Exchange Ratio by the number of INEX Common Shares held by such holder, and the name of each such holder shall be removed from the register of holders of INEX Common Shares and added to the register of holders of InfoSpace Common Shares and InfoSpace Nova Scotia shall be recorded as the registered holder of such INEX Common Shares so exchanged and shall be deemed to be the legal and beneficial owner thereof; (b) each Exchangeable Elected Share shall be transferred without any further act or formality on the part of the holder thereof from such holder to InfoSpace Canada in exchange for that number of fully paid and non-assessable Exchangeable that equals the product obtained by multiplying the Exchange Ratio by the number of INEX Common Shares held by such holder, and the name of each such holder shall be removed from the register of holders of INEX Common Shares and added to the register of holders of Exchangeable Shares and InfoSpace Canada shall be recorded as the registered holder of such INEX Common Shares so exchanged and shall be deemed to be the legal and beneficial owner thereof; (c) each INEX Common Share in respect of which no election has been made by the holder thereof, or in respect of which an effective election has not been made, (other than (i) INEX Common Shares held by Dissenting Shareholders, and (ii) INEX Common Shares held by InfoSpace or any subsidiary or affiliate thereof which shall not be exchanged under this Arrangement and shall remain outstanding as INEX Common Shares held by InfoSpace or any subsidiary or affiliate thereof) shall be deemed to be an Exchangeable Elected Share and shall be transferred without any act or formality on the part of the holder thereof from such holder to InfoSpace Canada in exchange for that number of fully paid and non-assessable Exchangeable -6- Shares that equals the product obtained by multiplying the Exchange Ratio by the number of INEX Common Shares held by such holder, and the name of each such holder shall be removed from the register of holders of INEX Common Shares and added to the register of holders of Exchangeable Shares and InfoSpace Canada shall be recorded as the registered holder of such INEX Common Shares so exchanged and shall be deemed to be the legal and beneficial owner thereof; (d) each INEX Preference Share (other than (i) INEX Preference Shares held by Dissenting Shareholders, and (ii) INEX Preference Shares held by InfoSpace or any subsidiary or affiliate thereof which shall not be exchanged under this Arrangement and shall remain outstanding as INEX Preference Shares held by InfoSpace or any subsidiary or affiliate thereof) shall be transferred without any act or formality on the part of the registered holder thereof, from such holder to InfoSpace Nova Scotia in exchange for that number of fully paid and non-assessable InfoSpace Common Shares that equals the product obtained by multiplying the Exchange Ratio by the number of INEX Preference Shares held by such holder, and the name of each such holder shall be removed from the register of holders of INEX Preference Shares and added to the register of holders of InfoSpace Common Shares and InfoSpace Nova Scotia shall be recorded as the registered holder of such INEX Preference Shares so exchanged and shall be deemed to be the legal and beneficial owner thereof; (e) each INEX Option shall be exchanged for an option (a "Replacement Option") to purchase that number of InfoSpace Common Shares that equals the product obtained by multiplying the Exchange Ratio by the number of INEX Common Shares subject to such INEX Option. Such Replacement Option shall provide for an exercise price per InfoSpace Common Share equal to the quotient obtained by dividing the exercise price per share of such INEX Option immediately prior to the Effective Time by the Exchange Ratio. If the foregoing calculation results in a Replacement Option being exercisable for a fraction of an InfoSpace Common Share, then the number of InfoSpace Common Shares subject to such Replacement Option shall be rounded down to the next whole number of InfoSpace Common Shares and the total exercise price for the Replacement Option shall be reduced by the exercise price of the fractional InfoSpace Common Share. The term to expiry, conditions to and manner of exercising, vesting schedule, and all other terms and conditions of such Replacement Option shall otherwise be unchanged, and any document or agreement previously evidencing an INEX Option shall thereafter evidence and be deemed to evidence such Replacement Option; (f) InfoSpace shall issue to and deposit with the Trustee the Special Voting Share, in consideration of the payment to InfoSpace of US$ 1, to be thereafter held of record by the Trustee as trustee for and on behalf of, and for the use and benefit of, the holders of the Exchangeable Shares in accordance with the Voting and Exchange Trust Agreement; -7- (g) pursuant to the escrow agreement attached as schedule "2" hereto (the "Escrow Agreement"), InfoSpace Canada and InfoSpace Nova Scotia shall deposit in escrow (the "Escrow Fund") with the Trustee as escrow agent, share certificates representing Exchangeable Shares and shares of InfoSpace Common Stock, respectively (collectively, the "Escrow Shares"), representing 10% of the number of Exchangeable Shares and InfoSpace Common Shares to be issued by InfoSpace Canada and InfoSpace Nova Scotia respectively pursuant to the Arrangement which shall be registered in the name of the Trustee as escrow agent under this agreement. The Escrow Shares shall be held and distributed by the Trustee in accordance with the terms and conditions of the Escrow Agreement. The escrow period shall commence on the Effective Date and shall terminate at 5:00 p.m., Toronto time, on the date which is the earlier of (a) the first anniversary of the Effective Date and (b) the date on which InfoSpace publicly releases audited financial statements for the year ending December 31; however, that a portion of the Escrow Shares, which is necessary to satisfy any unsatisfied claims under the Plan of Arrangement shall remain in the Escrow Fund until such claims have been resolved in accordance with the Escrow Agreement; (h) The Articles of INEX shall be amended as follows: (i) Name. The name of the corporation shall be InfoSpace.com Canada Inc.(the "Corporation"); (ii) Registered Office. The registered office of the Corporation shall be located in the City of Toronto in the Province of Ontario. The address of the registered head office of the Corporation shall be Suite 3600, 66 Wellington Street West, Toronto, Ontario M5K IN6; (iii) Number of Directors. The number of directors of the Corporation shall be such number not less than one and not more than 11 as is determined from time to time by special resolution or, if the special resolution empowers the directors to do so, as the directors of the Corporation may from time to time determine by resolution; (iv) Initial Directors. The directors of the Corporation shall be:
Name Residence Address Canadian Resident ---- ----------------- ----------------- Bernee Strom 5402 Lake Washington Blvd. No Penthouse G, Kirkland, WA Omaya Elguindi 5108 Forest Hill Drive Yes Mississauga, Ontario
(v) By-laws. Until amended or repealed, the by-laws of the Corporation shall be the by-laws attached as schedule "3" hereto; and -8- (i) The Articles of InfoSpace Canada shall be amended to delete therefrom the limit on the number of shareholders of the corporation and the prohibition on any invitation to the public to subscribe for any securities of the corporation. 2.4 Elections (a) Each Person who, at or prior to the Election Deadline, is a holder of record of INEX Common Shares, shall be entitled, with respect to all or a portion of such shares, to make an election at or prior to the Election Deadline to receive Exchangeable Shares or InfoSpace Common Shares, or a combination thereof, in exchange for such holder's INEX Common Shares on the basis set forth herein and in the Letter of Transmittal and Election Form; (b) Holders of INEX Common Shares who have elected to receive Exchangeable Shares shall be entitled to make an income tax election pursuant to subsection 85(l) or 85(2) of the ITA (and the analogous provisions of provincial income tax law) with respect to the transfer of their INEX Common Shares to InfoSpace Canada by providing two signed copies of the necessary election forms to the Depositary within 90 days following the Effective Date, duly completed with the details of the number of shares transferred and the applicable agreed amounts for the purposes of such elections. Thereafter, subject to the election forms complying with the provisions of the ITA (or applicable provincial income tax law), the forms shall be signed by InfoSpace Canada and returned to such holders of INEX Common Shares for filing with Revenue Canada (or the applicable provincial taxing authority); and (c) Holders of INEX Preference Shares shall only be entitled to receive InfoSpace Common Shares and shall not be entitled to elect to receive Exchangeable Shares. ARTICLE 3 RIGHTS OF DISSENT 3.1 Rights of Dissent Holders of INEX Shares may exercise rights of dissent with respect to such shares pursuant to and in the manner set forth in section 185 of the OBCA and this section 3.1 (the "Dissent Procedures") in connection with the Arrangement. Holders of INEX Shares who duly exercise such rights of dissent and who: (a) are ultimately entitled to be paid fair value for their INEX Shares shall be deemed to have transferred such INEX Shares to InfoSpace Nova Scotia, to the extent the fair value therefor is paid by InfoSpace Nova Scotia, and to INEX, to the extent the fair value therefor is paid by INEX, and, in the case of INEX Shares so transferred to INEX, such shares shall be cancelled on the Effective Date; or -9- (b) are ultimately not entitled, for any reason, to be paid fair value for their INEX Shares shall be deemed to have participated in the Arrangement on the same basis as a non-dissenting holder of INEX Shares and shall receive Exchangeable Shares or InfoSpace Common Shares on the basis determined in accordance with sections 2.2(c) and 2.2(d), but in no case shall InfoSpace Canada, InfoSpace Nova Scotia, INEX or any other Person be required to recognize such holders as holders of INEX Shares after the Effective Time, and the names of such holders of INEX Shares shall be deleted from the registers of holders of INEX Shares at the Effective Time. ARTICLE 4 CERTIFICATES AND FRACTIONAL SHARES 4.1 Issuance of Certificates Representing Exchangeable Shares At or promptly after the Effective Time, InfoSpace Canada shall deposit with the Depositary, for the benefit of the holders of INEX Common Shares who shall receive Exchangeable Shares in connection with the Arrangement, certificates representing the Exchangeable Shares issued pursuant to section 2.2 upon the exchange of INEX Common Shares. Upon surrender to the Depositary for cancellation at its principal offices in Toronto of a certificate which immediately prior to the Effective Time represented one or more INEX Common Shares that were exchanged for one or more Exchangeable Shares under the Arrangement, together with such other documents and instruments as would have been required to effect the transfer of the shares formerly represented by such certificate under the OBCA and the by-laws of INEX and such additional documents and instruments as the Depositary may reasonably require, the holder of such surrendered certificate shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, a certificate representing that number (rounded down to the nearest whole number) of Exchangeable Shares which such holder has the right to receive (together with any dividends or distributions with respect thereto pursuant to section 4.3 and any cash in lieu of fractional Exchangeable Shares pursuant to section 4.4), and the certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of INEX Common Shares that is not registered in the transfer records of INEX, a certificate representing the proper number of Exchangeable Shares may be issued to the transferee if the certificate representing such INEX Common Shares is presented to the Depositary at its principal offices in Toronto accompanied by all documents required to evidence and effect such transfer. Until surrendered as contemplated by this section 4.1, each certificate which immediately prior to the Effective Time represented INEX Common Shares that were exchanged for Exchangeable Shares shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender (i) the certificate representing Exchangeable Shares as contemplated by this section 4.1, (ii) a cash payment in lieu of any fractional Exchangeable Shares as contemplated by section 4.4, and (iii) any dividends or distributions with a record date after the Effective Time theretofore paid or payable with respect to Exchangeable Shares as contemplated by section 4.3. -10- 4.2 Exchange of Certificates for InfoSpace Common Shares At or promptly after the Effective Time, InfoSpace Nova Scotia shall deposit with the Depositary, for the benefit of the holders of INEX Shares who shall receive InfoSpace Common Shares in connection with the Arrangement, certificates representing the InfoSpace Common Shares issued pursuant to section 2.2 in exchange for outstanding INEX Shares. Upon surrender to the Depositary for cancellation at its principal offices in Toronto of a certificate which immediately prior to the Effective Time represented outstanding INEX Shares that were exchanged for InfoSpace Common Shares, together with such other documents and instruments as would have been required to effect the transfer of the shares formerly represented by such certificate under the OBCA and the by-laws of INEX and such additional documents and instruments as the Depositary may reasonably require, the holder of such surrendered certificate shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, a certificate representing that number (rounded down to the nearest whole number) of InfoSpace Common Shares which such holder has the right to receive (together with any dividends or distributions with respect thereto pursuant to section 4.3 and any cash in lieu of fractional InfoSpace Common Shares pursuant to section 4.4), and the certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of INEX Shares which is not registered in the transfer records of INEX, a certificate representing the proper number of InfoSpace Common Shares may be issued to the transferee if the certificate representing such INEX Shares is presented to the Depositary at its principal offices in Toronto, accompanied by all documents required to evidence and effect such transfer. Until surrendered as contemplated by this section 4.2, each certificate which immediately prior to the Effective Time represented one or more outstanding INEX Shares that were exchanged for InfoSpace Common Shares shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender (i) the certificate representing InfoSpace Common Shares as contemplated by this section 4.2, (ii) a cash payment in lieu of any fractional InfoSpace Common Shares as contemplated by section 4.4, and (iii) any dividends or distributions with a record date after the Effective Time theretofore paid or payable with respect to InfoSpace Common Shares as contemplated by section 4.3. 4.3 Distributions with Respect to Unsurrendered Certificates No dividends or other distributions declared or made after the Effective Time with respect to Exchangeable Shares or InfoSpace Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate which immediately prior to the Effective Time represented outstanding INEX Shares that were exchanged pursuant to section 2.2, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to section 4.4, unless and until the holder of record of such certificate shall surrender such certificate in accordance with section 4.1 or 4.2. Subject to applicable law, at the time of such surrender of any such certificate, there shall be paid to the recorded holder of the certificates representing whole INEX Shares, without interest, (i) the amount of any cash payable in lieu of a fractional Exchangeable Share or InfoSpace Common Share to which such holder is entitled pursuant to section 4.4, (ii) the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole Exchangeable Share or InfoSpace Common Share, as the case may be, and (iii) on the appropriate payment date, the amount of dividends or -11- other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole Exchangeable Share or InfoSpace Common Share, as the case may be. 4.4 No Fractional Shares No certificates or scrip representing fractional Exchangeable Shares or fractional InfoSpace Common Shares shall be issued upon the surrender for exchange of certificates pursuant to section 4.1 or 4.2 and no dividend, stock split or other change in the capital structure of InfoSpace Canada shall relate to any such fractional security and such fractional interests shall not entitle the owner thereof to exercise any rights as a security holder of InfoSpace Canada. In lieu of any such fractional securities each Person otherwise entitled to a fractional interest in an Exchangeable Share, shall receive a cash payment equal to such fractional interest multiplied by US $50.00. 4.5 Lost Certificates In the event any certificate which immediately prior to the Effective Time represented one or more outstanding INEX Shares that were exchanged pursuant to section 2.2 shall have been lost, stolen, mutilated or destroyed, upon receipt by the Depository of evidence to its satisfaction of ownership and the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen, mutilated or destroyed, and the surrender of the certificate in the case of mutilation, the Depositary shall issue in exchange for such lost, stolen, mutilated or destroyed certificate, cash and/or one or more certificates representing one or more Exchangeable Shares or InfoSpace Common Shares (and any dividends or distributions with respect thereto and any cash pursuant to section 4.4) deliverable in accordance with such holder's Letter of Transmittal and Election Form. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom certificates representing Exchangeable Shares or InfoSpace Common Shares are to be issued shall, as a condition precedent to the issuance thereof, give a bond satisfactory to InfoSpace Canada, InfoSpace and their respective transfer agents in such sum as InfoSpace Canada or InfoSpace may direct or otherwise indemnify InfoSpace Canada and InfoSpace in a manner satisfactory to InfoSpace Canada and InfoSpace against any claim that may be made against InfoSpace Canada or InfoSpace with respect to the certificate alleged to have been lost, stolen or destroyed. 4.6 Extinction of Rights Any certificate which immediately prior to the Effective Time represented outstanding INEX Shares that were exchanged pursuant to section 2.2 and not deposited, with all other instruments required by section 4.1 or 4.2, on or prior to the third anniversary of the Effective Date shall cease to represent a claim or interest of any kind or nature as a shareholder of InfoSpace Canada or InfoSpace. On such date, the Exchangeable Shares or InfoSpace Common Shares (or cash in lieu of fractional interests therein, as provided in section 4.4) to which the former registered holder of the certificate referred to in the preceding sentence was ultimately entitled shall be deemed to have been surrendered to InfoSpace Canada or InfoSpace, as the case may be, together with all entitlements to dividends, distributions and interest thereon held for such former registered holder. -12- 4.7 Withholding Rights InfoSpace Canada, InfoSpace Nova Scotia, InfoSpace and the Depositary shall be entitled to deduct and withhold from any dividend or consideration otherwise payable to any holder of INEX Shares, InfoSpace Common Shares or Exchangeable Shares such amounts as InfoSpace Canada, InfoSpace Nova Scotia, InfoSpace or the Depositary is required or permitted to deduct and withhold with respect to such payment under the ITA, the United States Internal Revenue Code of 1986 or any provision of provincial, state, local or foreign tax law, in each case, as amended. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereof as having been paid to the holder of the shares in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted to the appropriate taxing authority. To the extent that the amount so required or permitted to be deducted or withheld from any payment to a holder exceeds the cash portion of the consideration otherwise payable to the holder, InfoSpace Canada, InfoSpace Nova Scotia, InfoSpace and the Depositary are hereby authorized to sell or otherwise dispose of such portion of the consideration as is necessary to provide sufficient funds to InfoSpace Canada, InfoSpace Nova Scotia, InfoSpace or the Depositary, as the case may be, to enable it to comply with such deduction or withholding requirement and InfoSpace Canada, InfoSpace Nova Scotia, InfoSpace or the Depositary shall notify the holder thereof and remit any unapplied balance of the net proceeds of such sale. ARTICLE 5 CERTAIN RIGHTS OF INFOSPACE NOVA SCOTIA TO ACQUIRE EXCHANGEABLE SHARES 5.1 InfoSpace Nova Scotia Liquidation Call Right (a) InfoSpace Nova Scotia shall have the overriding right (the "Liquidation Call Right"), in the event of and notwithstanding the proposed liquidation, dissolution or winding-up of InfoSpace Canada pursuant to Article 5 of the Exchangeable Share Provisions, to purchase from all but not less than all of the holders of Exchangeable Shares (other than any holder of Exchangeable Shares which is an affiliate of InfoSpace) on the Liquidation Date all but not less than all of the Exchangeable Shares held by each such holder on, payment by InfoSpace Nova Scotia of an amount per share (the "Liquidation Call Purchase Price") equal to the Current Market Price of an InfoSpace Common Share on the last Business Day prior to the Liquidation Date, which shall be satisfied in full by InfoSpace Nova Scotia causing to be delivered to such holder one InfoSpace Common Share, plus, to the extent not paid by InfoSpace Canada, an additional amount equivalent to the full amount of all declared and unpaid dividends on each such Exchangeable Share held by such holder on any dividend record date which occurred prior to the date of purchase by InfoSpace Nova Scotia (the "Dividend Amount"). In the event of the exercise of the Liquidation Call Right by InfoSpace Nova Scotia, each holder shall be obligated to sell all the Exchangeable Shares held by the holder to InfoSpace Nova Scotia on the Liquidation Date on payment by InfoSpace Nova Scotia to the holder of the -13- Liquidation Call Purchase Price for each such share, and InfoSpace Canada shall have no obligation to redeem such shares so purchased by InfoSpace Nova Scotia. (b) To exercise the Liquidation Call Right, InfoSpace Nova Scotia must notify InfoSpace Canada's transfer agent (the "Transfer Agent"), as agent for the holders of Exchangeable Shares, and InfoSpace Canada of InfoSpace Nova Scotia's intention to exercise such right at least 45 days before the Liquidation Date in the case of a voluntary liquidation, dissolution or winding-up of InfoSpace Canada and at least five Business Days before the Liquidation Date in the case of an involuntary liquidation, dissolution or winding-up of InfoSpace Canada The Transfer Agent shall notify the holders of Exchangeable Shares as to whether or not InfoSpace Nova Scotia has exercised the Liquidation Call Right forthwith after the expiry of the period during which the same may be exercised by InfoSpace Nova Scotia. If InfoSpace Nova Scotia exercises the Liquidation Call Right, then on the Liquidation Date InfoSpace Nova Scotia shall purchase and the holders shall sell all of the Exchangeable Shares then outstanding for a price per share equal to the Liquidation Call Purchase Price. (c) For the purposes of completing the purchase of the Exchangeable Shares pursuant to the Liquidation Call Right, InfoSpace Nova Scotia shall deposit with the Transfer Agent, on or before the Liquidation Date, certificates representing the aggregate number of InfoSpace Common Shares deliverable by InfoSpace Nova Scotia and a cheque or cheques of InfoSpace Nova Scotia payable at par at any branch of the bankers of InfoSpace Nova Scotia representing the aggregate Dividend Amount in payment of the total Liquidation Call Purchase Price, less any amounts withheld pursuant to section 4.7 hereof. Provided that InfoSpace Nova Scotia has complied with the immediately preceding sentence, on and after the Liquidation Date the rights of each holder of Exchangeable Shares shall be limited to receiving such holder's proportionate part of the total Liquidation Call Purchase Price payable by InfoSpace Nova Scotia upon presentation and surrender by the holder of certificates representing the Exchangeable Shares held by such holder and the holder shall on and after the Liquidation Date be considered and deemed for all purposes to be the holder of the InfoSpace Common Shares to which it is entitled. Upon surrender to the Transfer Agent of a certificate or certificates representing Exchangeable Shares, together with such other documents and instruments as may be required to effect a transfer of Exchangeable Shares under the OBCA and the by- laws of InfoSpace Canada and such additional documents and instruments as the Transfer Agent may reasonably require, the holder of such surrendered certificate or certificates shall be entitled to receive in exchange therefor, and the Transfer Agent on behalf of InfoSpace Nova Scotia shall deliver to such holder, certificates representing the InfoSpace Common Shares to which the holder is entitled and a cheque or cheques of InfoSpace Nova Scotia payable at par at any branch of the bankers of InfoSpace Nova Scotia in payment of the remaining portion, if any, of the total Liquidation Call Purchase Price, less any amounts withheld pursuant to section 4.7 hereof. If InfoSpace Nova Scotia does not exercise the Liquidation Call Right in the manner described above, on the Liquidation Date the holders of the Exchangeable Shares -14- shall be entitled to receive in exchange therefor the liquidation price otherwise payable by InfoSpace Canada in connection with the liquidation, dissolution or winding-up of InfoSpace Canada pursuant to Article 5 of the Exchangeable Share Provisions. 5.2 InfoSpace Nova Scotia Redemption Call Right (a) InfoSpace Nova Scotia shall have the overriding right (the "Redemption Call Right"), notwithstanding the proposed redemption of the Exchangeable Shares by InfoSpace Canada pursuant to Article 7 of the Exchangeable Share Provisions, to purchase from all but not less than an of the holders of Exchangeable Shares (other than any holder of Exchangeable Shares which is an affiliate of InfoSpace) on, the Redemption Date all but not less than all of the Exchangeable Shares held by each such holder on payment by InfoSpace to each holder of an amount per Exchangeable Share (the "Redemption Call Purchase Price") equal to the Current Market Price of an InfoSpace Common Share on the last Business Day prior to the Redemption Date, which shall be satisfied in full by InfoSpace Nova Scotia causing to be delivered to such holder one InfoSpace Common Share, plus the Dividend Amount. In the event of the exercise of the Redemption Call Right by InfoSpace Nova Scotia, each holder shall be obligated to sell all the Exchangeable Shares held by the holder to InfoSpace Nova Scotia on the Redemption Date on payment by InfoSpace Nova Scotia to the holder of the Redemption Call Purchase Price for each such share, and InfoSpace Canada shall have no obligation to redeem such shares so purchased by InfoSpace Nova Scotia. (b) To exercise the Redemption Call Right, InfoSpace Nova Scotia must notify the Transfer Agent, as agent for the holders of Exchangeable Shares, and InfoSpace Canada of InfoSpace Nova Scotia's intention to exercise such right at least 60 days before the Redemption Date, except in the case of a redemption occurring as a result of an InfoSpace Control Transaction, an Exchangeable Share Voting Event or an Exempt Exchangeable Share Voting Event, in which case InfoSpace Nova Scotia shall so notify the Transfer Agent and InfoSpace Canada on or before the Redemption Date. The Transfer Agent shall notify the holders of the Exchangeable Shares as to whether or not InfoSpace Nova Scotia has exercised the Redemption Call Right forthwith after the expiry of the period during which the same may be exercised by InfoSpace Nova Scotia. If InfoSpace Nova Scotia exercises the Redemption Call Right, on the Redemption Date InfoSpace Nova Scotia shall purchase and the holders shall sell all of the Exchangeable Shares then outstanding for a price per share equal to the Redemption Call Purchase Price. (c) For the purposes of completing the purchase of the Exchangeable Shares pursuant to the Redemption Call Right, InfoSpace Nova Scotia shall deposit with the Transfer Agent, on or before the Redemption Date, certificates representing the aggregate number of InfoSpace Common Shares deliverable by InfoSpace Nova Scotia and a cheque or cheques of InfoSpace Nova Scotia payable at par at any branch of the bankers of InfoSpace Nova Scotia representing the aggregate Dividend Amount in -15- payment of the total Redemption Call Purchase Price, less any amounts withheld pursuant to section 4.7 hereof. Provided that InfoSpace Nova Scotia has complied with the immediately preceding sentence, on and after the Redemption Date the rights of each holder of Exchangeable Shares shall be limited to receiving such holder's proportionate part of the total Redemption Call Purchase Price payable by InfoSpace Nova Scotia upon presentation and surrender by the holder of certificates representing the Exchangeable Shares held by such holder and the holder shall on and after the Redemption Date be considered and deemed for all purposes to be the holder of the InfoSpace Common Shares to which it is entitled. Upon surrender to the Transfer Agent of a certificate or certificates representing Exchangeable Shares, together with such other documents and instruments as may be required to effect a transfer of Exchangeable Shares under the OBCA and the by-laws of InfoSpace Canada and such additional documents and instruments as the Transfer Agent may reasonably require, the holder of such surrendered certificate or certificates shall be entitled to receive in exchange therefor, and the Transfer Agent on behalf of InfoSpace Nova Scotia shall deliver to such holder, certificates representing the InfoSpace Common Shares to which the holder is entitled and a cheque or cheques of InfoSpace Nova Scotia payable at par at any branch of the bankers of InfoSpace Nova Scotia in payment of the remaining portion, if any, of the total Redemption Call Purchase Price, less any amounts withheld pursuant to section 4.7 hereof. If InfoSpace Nova Scotia does not exercise the Redemption Call Right in the manner described above, on the Redemption Date the holders of the Exchangeable Shares shall be entitled to receive in exchange therefor the redemption price otherwise payable by InfoSpace Canada in connection with the redemption of the Exchangeable Shares pursuant to Article 7 of the Exchangeable Share Provisions. ARTICLE 6 AMENDMENTS 6.1 Amendments to Plan of Arrangement INEX reserves the right to amend, modify and/or supplement this Plan of Arrangement at any time and from time to time prior to the Effective Date, provided that each such amendment, modification and/or supplement must be (i) set out in writing, (ii) approved by InfoSpace, (iii) filed with the Court and, if made following the INEX Meeting, approved by the Court, and (iv) communicated to holders of INEX Shares if and as required by the Court. Any amendment, modification or supplement to this Plan of Arrangement may be proposed by INEX at any time prior to the INEX Meeting (provided that InfoSpace shall have consented thereto) with or without any other prior notice or communication, and if so proposed and accepted by the Persons voting at the INEX Meeting (other than as may be required under the Interim Order), shall become part of this Plan of Arrangement for all purposes. -16- Any amendment, modification or supplement to this Plan of Arrangement that is approved by the Court following the INEX Meeting shall be effective only if (i) it is consented to by each of INEX and InfoSpace, and (ii) required by the Court, it is consented to by holders of the INEX Shares voting in the manner directed by the Court. EX-99.2 9 FORM OF VOTING AND EXCHANGE TRUST AGMT Exhibit 99.2 VOTING AND EXCHANGE TRUST AGREEMENT This AGREEMENT is made as of the . day of September, 1999 BETWEEN: INFOSPACE.COM, INC., a corporation incorporated under the laws of Delaware ("Infospace") - and - INFOSPACE.COM CANADA HOLDINGS INC., a corporation amalgamated under the laws of Ontario ("Infospace Canada") MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated under the laws of Canada, (the "Trustee"), Background: 1. Pursuant to that certain Agreement and Plan of Acquisition and Arrangement dated as of the 13th day of August, 1999 (the "Arrangement and Acquisition Agreement"), entered into between Infospace and INEX Corporation ("INEX" and collectively the "Parties'), the Parties have agreed to the acquisition of INEX Corporation by Infospace, pursuant to a court sanctioned plan of arrangement. 2. Pursuant to the Arrangement and Acquisition Agreement, shareholders of INEX will have the option of exchanging common shares of INEX (or preferred shares of INEX collectively, the "INEX Shares"), exchangeable shares in the capital of Infospace (Canada) (the "Exchangeable Shares") or common shares in the capital of Infospace on the basis of .20405 of a Exchangeable Share or 0.20405 of a common share of Infospace for each INEX Share. 3. Pursuant to the Arrangement and Acquisition Agreement, Infospace and Infospace Canada have agreed to enter into a voting and exchange trust agreement with a trustee 2 appointed by the holders of such Exchangeable Shares substantially in the form of this agreement. NOW THEREFORE in consideration of the respective covenants and agreements provided in this trust agreement and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto covenant and agree as follows: ARTICLE 1 DEFINITIONS AND INTERPRETATION 1.1 Definitions In this trust agreement, the following terms shall have the following meanings: "Affiliate" of any person means any other person directly or indirectly controlled by, or under control of, that person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control of"), as applied to any person, means the possession by another person, directly or indirectly, of the power to direct or cause the direction of the management and policies of that first mentioned person, whether through the ownership of voting securities, by contract or otherwise. "Automatic Exchange Rights" means the benefit of the obligation of Infospace to effect the automatic exchange of Infospace Common Shares for Exchangeable Shares pursuant to section 5.12. "Beneficiaries" means the registered holders from time to time of Exchangeable Shares, other than Infospace and its Affiliates. "Beneficiary Votes" has the meaning ascribed thereto in section 4.2. "Board of Directors" means the Board of Directors of Infospace Canada. "Business Day" means any day on which commercial banks are open for business in Seattle, Washington and Toronto, Ontario, other than a Saturday, a Sunday or a day observed as a holiday in Toronto, Ontario under the laws of the Province of Ontario or the federal laws of Canada or in Seattle, Washington under the laws of the State of Washington or the federal laws of the United States of America. "Canadian Dollar Equivalent" means, in respect of an amount expressed in a currency other than Canadian dollars (the "Foreign Currency Amount") at any date, the product obtained by multiplying (a) the Foreign Currency Amount by (b) the noon spot exchange rate on such date for such foreign currency expressed in Canadian dollars as reported by the Bank of Canada, or, in the event such spot exchange rate is not available, such exchange rate on such date for such foreign currency expressed in Canadian dollars as may be deemed by the Board of Directors to be appropriate for such purpose. 3 "Current Market Price" means, in respect of an Infospace Common Share on any date, the Canadian Dollar Equivalent of the average of the closing bid and asked prices of Infospace Common Shares during a period of 20 consecutive trading days ending not more than three trading days before such date on the Nasdaq National Market, or, if the Infospace Common Shares are not then quoted on the Nasdaq National Market, on such other stock exchange or automated quotation system on which the Infospace Common Shares are listed or quoted, as the case may be, as may be selected by the Board of Directors for such purpose; provided however, that if in the opinion of the Board of Directors the public distribution or trading activity of Infospace Common Shares during such period does not create a market which reflects the fair market value of an Infospace Common Share, then the Current Market Price of an Infospace Common Share shall be determined by the Board of Directors, in good faith and in its sole discretion, and provided further that any such selection, opinion or determination by the Board of Directors shall be conclusive and binding. "Exchange Right" has the meaning ascribed thereto in section 5.1. "Exchangeable Shares" means the non-voting exchangeable shares in the capital of Infospace Canada. "List" has the meaning ascribed thereto in section 4.6. "Infospace Common Share" means a share of common stock, par value U.S. $0.001, in the capital of Infospace. "Infospace Consent" has the meaning ascribed thereto in section 4.2. "Infospace Meeting" has the meaning ascribed thereto in section 4.2. "Infospace Nova Scotia" means Infospace.com Nova Scotia Company. "Infospace Special Voting Share" means the one share of Special Voting Stock of Infospace, par value U.S.$.0l, which entitles the holder of record to a number of votes at meetings of holders of Infospace Common Shares equal to the number of Exchangeable Shares outstanding from time to time (other than Exchangeable Shares held by Infospace and Infospace Affiliates), which share is to be issued to, deposited with, and voted by, the Trustee as described herein. "Infospace Successor" has the meaning ascribed thereto in section 11.1(a). "Insolvency Event" means the institution by Infospace Canada of any proceeding to be adjudicated a bankrupt or insolvent or to be wound up, or the consent of Infospace Canada to the institution of bankruptcy, insolvency or winding-up proceedings against it, or the filing of a petition, answer or consent seeking dissolution or winding-up under any bankruptcy, insolvency or analogous laws, including without limitation the Companies Creditors' Arrangement Act (Canada) and the Bankruptcy and Insolvency Act (Canada), and the failure by Infospace Canada to contest in good faith any such proceedings commenced in respect of Infospace Canada within 30 days of becoming aware thereof, or 4 the consent by Infospace Canada to the filing of any such petition or to the appointment of a receiver, or the making by Infospace Canada of a general assignment for the benefit of creditors, or the admission in writing by Infospace Canada of its inability to pay its debts generally as they become due, or Infospace Canada not being permitted, pursuant to solvency requirements of applicable law, to redeem any Retracted Shares pursuant to section [6] of the Share Provisions. "Liquidation Call Right" has the meaning ascribed thereto in section [7] of the Share Provisions. "Liquidation Event" has the meaning ascribed thereto in section 5.12(b). "Liquidation Event Effective Date" has the meaning ascribed thereto in section 5.12(c). "Officer's Certificate" means, with respect to Infospace or Infospace Canada, as the case may be, a certificate signed by any one of Chief Executive Office, President or Chief Financial Officer of Infospace or Infospace Canada, as the case may be. "Person" includes an individual, partnership, corporation, company, unincorporated syndicate or person organization, trust, trustee, executor, administrator and other legal representative. "Share Provisions" means the rights, privileges, restrictions and conditions attaching to the Exchangeable Shares. "Support Agreement" means that certain exchangeable share support agreement made as of even date herewith between Infospace Canada, Infospace, Infospace Nova Scotia and the Trustee. "Trust" means the trust created by this trust agreement. "Trust Estate" means the Infospace Special Voting Share, any other securities, the benefit of the Support Agreement and any money or other property which may be held by the Trustee from time to time pursuant to this trust agreement. "Trustee" means Montreal Trust Company of Canada and, subject to the provisions of Article 10, includes any successor trustee. "Voting Rights" means the voting rights attached to the Infospace Special Voting Share. 1.2 Interpretation Not Affected by Headings, etc. The division of this trust agreement into Articles, sections and other portions and the insertion of headings are for convenience of reference only and should not affect the construction or interpretation of this trust agreement. Unless otherwise indicated, all references to an "Article" or "section" followed by a number and/or a letter refer to the specified Article or section of this trust agreement. The terms "this trust agreement", "hereof" "herein", and "hereunder" and similar expressions refer to this trust agreement and not to any particular 5 Article, section or other portion hereof and include any agreement or supplementary or ancillary hereto. 1.3 Number, Gender, etc. Words in the singular number only shall include the plural and vice versa. Words in one gender shall include all genders. 1.4 Date for any Action If any date on which any action is required to be taken under this trust agreement is not a Business Day, such action shall be required to be taken on the next succeeding Business Day. ARTICLE 2 PURPOSE OF AGREEMENT 2.1 Establishment of Trust The purpose of this trust agreement is to create the Trust for the benefit of the Beneficiaries, as herein provided. The Trustee will hold the Trust Estate in order to enable the Trustee to execute the Voting Rights and will hold the Exchange Right and the Automatic Exchange Rights in order to enable the Trustee to exercise such rights, in each case as trustee for and on behalf of the Beneficiaries as provided in this trust agreement. ARTICLE 3 INFOSPACE SPECIAL VOTING SHARE 3.1 Issue and Ownership of the Infospace Special Voting Share Infospace hereby issues to and deposits with the Trustee, the Infospace Special Voting Share to be hereafter held of record by the Trustee as trustee for and on behalf of, and for the use and benefit of, the Beneficiaries and in accordance with the provisions of this trust agreement. Infospace hereby acknowledges receipt from the Trustee as trustee for and on behalf of the Beneficiaries of good and valuable consideration (and the adequacy thereof) for the issuance of the Infospace Special Voting Share by Infospace to the Trustee. During the term of the Trust and subject to the terms and conditions of this trust agreement, the Trustee shall possess and be vested with full legal ownership of the Infospace Special Voting Share and shall be entitled to exercise all of the rights and powers of an owner with respect to the Infospace Special Voting Share provided that the Trustee shall: (a) hold the Infospace Special Voting Share and the legal title thereto as trustee solely for the use and benefit of the Beneficiaries in accordance with the provisions of this trust agreement; and 6 (b) except as specifically authorized by this trust agreement, have no power or authority to sell, transfer, vote or otherwise deal in or with the Infospace Special Voting Share and the Infospace Special Voting Share shall not be used or disposed of by the Trustee for any purpose other than the purposes for which this Trust is created pursuant to this trust agreement. 3.2 Legended Share Certificates Infospace Canada shall cause each certificate representing Exchangeable Shares to bear an appropriate legend notifying the Beneficiaries of their right to instruct the Trustee with respect to the exercise of the Voting Rights in respect of the Exchangeable Shares of the Beneficiaries. 3.3 Safe Keeping of Certificate The certificate representing the Infospace Special Voting Share shall at all times be held in safe keeping by the Trustee. ARTICLE 4 EXERCISE OF VOTING RIGHTS 4.1 Voting Rights The Trustee, as the holder of record of the Infospace Special Voting Share, shall be entitled to all of the Voting Rights, including the right to vote in person or by proxy the Infospace Special Voting Share on any matters, questions, proposals or propositions whatsoever that may properly come before the shareholders of Infospace at an Infospace Meeting or in connection with an Infospace Consent. The Voting Rights shall be and remain vested in and exercised by the Trustee. Subject to section 7.15: (a) the Trustee shall exercise the Voting Rights only on the basis of instructions received pursuant to this Article 4 from Beneficiaries entitled to instruct the Trustee as to the voting thereof at the time at which the Infospace Meeting is held; and (b) to the extent that no instructions are received from a Beneficiary with respect to the Voting Rights to which such Beneficiary is entitled, the Trustee shall not exercise or permit the exercise of such Voting Rights. 4.2 Number of Votes With respect to all meetings of shareholders of Infospace at which holders of Infospace Common Shares are entitled to vote (each, an "Infospace Meeting") and with respect to all written consents sought by Infospace from its shareholders including the holders of Infospace Common Shares (each, an "Infospace Consent"), each Beneficiary shall be entitled to instruct the Trustee to cast and exercise one of the votes comprised in the Voting Rights for each 7 Exchangeable Share owned of record by such Beneficiary on the record date established by Infospace or by applicable law for such Infospace Meeting or Infospace Consent, as the case may be (the "Beneficiary Votes"), in respect of each matter, question, proposal or proposition to be voted on at such Infospace Meeting or in connection with such Infospace Consent. 4.3 Mailings to Shareholders With respect to each Infospace Meeting and Infospace Consent, the Trustee will mail or cause to be mailed (or otherwise communicate in the same manner as Infospace utilizes in communications to holders of Infospace Common Shares) to each of the Beneficiaries named in the List referred to in section 4.6, such mailing or communication to commence on the same day as the mailing or notice (or other communication) with respect thereto is commenced by Infospace to its shareholders: (a) a copy of such notice, together with any related materials to be provided to shareholders of Infospace; (b) a statement that such Beneficiary is entitled to instruct the Trustee as to the exercise of the Beneficiary Votes with respect to such Infospace Meeting or Infospace Consent or, pursuant to section 4.7, to attend such Infospace Meeting and to exercise personally the Beneficiary Votes thereat; (c) a statement as to the manner in which such instructions may be given to the Trustee, including an express indication that instructions may be given to the Trustee to give: (i) a proxy to such Beneficiary or his designee to exercise personally the Beneficiary Votes; or (ii) a proxy to a designated agent or other representative of the management of Infospace to exercise such Beneficiary Votes; (d) a statement that if no such instructions are received from the Beneficiary, the Beneficiary Votes to which such Beneficiary is entitled will not be exercised; (e) a form of direction whereby the Beneficiary may so direct and instruct the Trustee as contemplated herein; and (f) a statement of the time and date by which such instructions must be received by the Trustee in order to be binding upon it, which in the case of an Infospace Meeting shall not be earlier than the close of business on the second Business Day prior to such meeting, and of the method for revoking or amending such instructions. For the purpose of determining Beneficiary Votes to which a Beneficiary is entitled in respect of any Infospace Meeting or Infospace Consent, the number of Exchangeable Shares owned of record by the Beneficiary shall be determined at the close of business on the record date established by Infospace or by applicable law for purposes of determining shareholders 8 entitled to vote at such Infospace Meeting or to execute an Infospace consent. Infospace will notify the Trustee of any decision of the Board of Directors of Infospace with respect to the calling of any Infospace Meeting or the seeking of an Infospace consent and shall provide all necessary information and materials to the Trustee in each case promptly and in any event in sufficient time to enable the Trustee to perform its obligations contemplated by this section 4.3. 4.4 Copies of Shareholder Information Infospace will deliver to the Trustee copies of all proxy materials (including notices of Infospace Meetings but excluding proxies to vote Infospace Common Shares), information statements, reports (including without limitation, all interim and annual financial statements) and other written communications that, in each case, are to be distributed from time to time to holders of Infospace Common Shares in sufficient quantities and in sufficient time so as to enable the Trustee to send those materials to each Beneficiary at the same time as such materials are first sent to holders of Infospace Common Shares. The Trustee will mail or otherwise send to each Beneficiary, at the expense of Infospace, copies of all such materials (and all materials specifically directed to the Beneficiaries or to the Trustee for the benefit of the Beneficiaries by Infospace) received by the Trustee from Infospace contemporaneously with the sending of such materials to holders of Infospace Common Shares. The Trustee will also make available for inspection by any Beneficiary at the Trustee's principal corporate trust office in the City of Toronto all proxy materials, information statements, reports and other written communications that are: (a) received by the Trustee as the registered holder of the Infospace Special Voting Share and made available by Infospace generally to the holders of Infospace Common Shares; or (b) specifically directed to the Beneficiaries or to the Trustee for the benefit of the Beneficiaries by Infospace. 4.5 Other Materials As soon as reasonably practicable after receipt by Infospace or shareholders of Infospace (if such receipt is known by Infospace) of any material sent or given by or on behalf of a third party to holders of Infospace Common Shares generally, including without limitation, dissident proxy and information circulars (and related information and material) and tender and exchange offer circulars (and related information and material), Infospace shall use its reasonable efforts to obtain and deliver to the Trustee copies thereof in sufficient quantities so as to enable the Trustee to forward such material (unless the same has been provided directly to Beneficiaries by such third party) to each Beneficiary as soon as possible thereafter. Immediately upon receipt thereof, the Trustee will mail or otherwise send to each Beneficiary, at the expense of Infospace, copies of all such materials received by the Trustee from Infospace. The Trustee will also make available for inspection by any Beneficiary at the Trustee's principal corporate trust office in the City of Toronto copies of all such materials. 9 4.6 List of Persons Entitled to Vote Infospace Canada shall, (a) prior to each annual, general and special Infospace Meeting or the seeking of any Infospace Consent and (b) forthwith upon each request made at any time by the Trustee in writing, prepare or cause to be prepared a list (a "List") of the names and addresses of the Beneficiaries arranged in alphabetical order and showing the number of Exchangeable Shares held of record by each such Beneficiary, in each case at the close of business on the date specified by the Trustee in such request or, in the case of a List prepared in connection with an Infospace Meeting or an Infospace Consent, at the close of business on the record date established by Infospace or pursuant to applicable law for determining the holders of Infospace Common Shares entitled to receive notice of and/or to vote at such Infospace Meeting or to give consent in connection with such Infospace Consent. Each such List shall be delivered to the Trustee promptly after receipt by Infospace Canada of such request or the record date for such meeting or seeking of consent, as the case may be. Infospace agrees to give Infospace Canada notice (with a copy to the Trustee) of the calling of any Infospace Meeting or the seeking of any Infospace Consent, together with the record dates therefor, sufficiently prior to the record date in connection with such meeting or seeking of such consent so as to enable Infospace Canada to perform its obligations under this section 4.6. 4.7 Entitlement to Direct Votes Any Beneficiary named in a List prepared in connection with any Infospace Meeting or Infospace Consent will be entitled (a) to instruct the Trustee in the manner described in section 4.3 with respect to the exercise of the Beneficiary Votes to which such Beneficiary is entitled or (b) to attend such meeting and personally exercise thereat, as the proxy of the Trustee, the Beneficiary Votes to which such Beneficiary is entitled. 4.8 Voting by Trustee, and Attendance of Trustee Representative at Meeting (a) In connection with each Infospace Meeting and Infospace Consent, the Trustee shall exercise, either in person or by proxy, in accordance with the instructions received from a Beneficiary pursuant to section 4.3, the Beneficiary Votes as to which such Beneficiary is entitled to direct the vote (or any lesser number thereof as may be set forth in the instructions); provided, however, that such written instructions are received by the Trustee from the Beneficiary prior to the time and date fixed by the Trustee for receipt of such instructions in the notice given by the Trustee to the Beneficiary pursuant to section 4.3. (b) The Trustee shall cause a representative who is empowered by it to sign and deliver, on behalf of the Trustee, proxies for Voting Rights to attend each Infospace Meeting. Upon submission by a Beneficiary (or its designee) of identification satisfactory to the Trustee's representative, and at the Beneficiary's request, such representative shall sign and deliver to such Beneficiary (or its designee) a proxy to exercise personally the Beneficiary Votes as to which such Beneficiary is otherwise entitled hereunder to direct the vote, if such Beneficiary either (i) has not previously given the Trustee instructions pursuant to section 4.3 in respect of such meeting or (ii) submits to such representative written revocation 10 of any such previous instructions. At such meeting, the Beneficiary exercising such Beneficiary Votes shall have the same rights as the Trustee to speak at the meeting in respect of any matter, question, proposal or proposition, to vote by way of ballot at the meeting in respect of any matter, question, proposal or proposition, and to vote at such meeting by way of a show of hands in respect of any matter, question or proposition. 4.9 Distribution of Written Materials Any written materials distributed by the Trustee pursuant to this trust agreement shall be sent by mail (or otherwise communicated in the same manner as Infospace utilizes in communications to holders of Infospace Common Shares) to each Beneficiary at its address as shown on the books of Infospace Canada Infospace Canada shall provide or cause to be provided to the Trustee for this purpose, on a timely basis and without charge or other expense: (a) a current List; and (b) upon the request of the Trustee, mailing labels to enable the Trustee to carry out its duties under this trust agreement. 4.10 Termination of Voting Rights All of the rights of a Beneficiary with respect to the Beneficiary Votes exercisable in respect of the Exchangeable Shares held by such Beneficiary, including the right to instruct the Trustee as to the voting of or to vote personally such Beneficiary Votes, shall be deemed to be surrendered by the Beneficiary to Infospace, and such Beneficiary Votes and the Voting Rights represented thereby shall cease immediately upon the redemption of Exchangeable Shares pursuant to Section 6 or 7 of the Share Provisions, or upon the effective date of the liquidation, dissolution or winding-up of Infospace Canada pursuant to Section 5 of the Share Provisions or upon the purchase of the Exchangeable Shares by Infospace Nova Scotia pursuant to the exercise by Infospace Nova Scotia of the Liquidation Call Right, Redemption Call Right or Retraction Call Right. ARTICLE 5 EXCHANGE RIGHT AND AUTOMATIC EXCHANGE 5.1 Grant and Ownership of the Exchange Right Infospace hereby grants to the Trustee as trustee for and on behalf of, and for the use and benefit of, the Beneficiaries the right (the "Exchange Right"), upon the occurrence and during the continuance of an Insolvency Event, to require Infospace to purchase from each or any Beneficiary all or any part of the Exchangeable Shares held by the Beneficiary and the Automatic Exchange Rights, all in accordance with the provisions of this trust agreement. Infospace hereby acknowledges receipt from the Trustee as trustee for and on behalf of the Beneficiaries of good and valuable consideration (and the adequacy thereof) for the grant of the 11 Exchange Right and the Automatic Exchange Rights by Infospace to the Trustee. During the term of the Trust and subject to the terms and conditions of this trust agreement, the Trustee shall possess and be vested with full legal ownership of the Exchange Right and the Automatic Exchange Rights and shall be entitled to exercise all of the rights and powers of an owner with respect to the Exchange Right and the Automatic Exchange Rights, provided that the Trustee shall: (a) hold the Exchange Right and the Automatic Exchange Rights and the legal title thereto as trustee solely for the use and benefit of the Beneficiaries in accordance with the provisions of this trust agreement; and (b) except as specifically authorized by this trust agreement, have no power or authority to exercise or otherwise deal in or with the Exchange Right or the Automatic Exchange Rights, and the Trustee shall not exercise any such rights for any purpose other than the purposes for which the Trust is created pursuant to this trust agreement. 5.2 Legended Share Certificates Infospace Canada will cause each certificate representing Exchangeable Shares to bear an appropriate legend notifying the Beneficiaries of: (a) their right to instruct the Trustee with respect to the exercise of the Exchange Right in respect of the Exchangeable Shares held by a Beneficiary; and (b) the Automatic Exchange Rights. 5.3 General Exercise of Exchange Right The Exchange Right shall be and remain vested in and exercisable by the Trustee. Subject to section 7.15, the Trustee shall exercise the Exchange Right only on the basis of instructions received pursuant to this Article 5 from Beneficiaries entitled to instruct the Trustee as to the exercise thereof. To the extent that no instructions are received from a Beneficiary with respect to the Exchange Right, the Trustee shall not exercise or permit the exercise of the Exchange Right. 5.4 Purchase Price The purchase price payable by Infospace for each Exchangeable Share to be purchased by Infospace under the Exchange Right shall be an amount per share equal to (a) the Current Market Price of an Infospace Common Share on the last Business Day prior to the day of closing of the purchase and sale of such Exchangeable Share under the Exchange Right, which shall be satisfied in full by Infospace causing to be sent to such holder one Infospace Common Share, plus (b) to the extent not paid by Infospace Canada, an additional amount equivalent to the full amount of all declared and unpaid dividends on each such Exchangeable Share held by such holder on any dividend record date which occurred prior to the closing of the purchase and sale. The purchase price for each such Exchangeable Share so purchased may be satisfied only by 12 Infospace issuing and delivering or causing to be delivered to the Trustee, on behalf of the relevant Beneficiary, one Infospace Common Share and on the applicable payment date a cheque for the balance, if any, of the purchase price without interest (but less any amounts withheld pursuant to section 5.13). 5.5 Exercise Instructions Subject to the terms and conditions herein set forth, a Beneficiary shall be entitled, upon the occurrence and during the continuance of an Insolvency Event, to instruct the Trustee to exercise the Exchange Right with respect to all or any part of the Exchangeable Shares registered in the name of such Beneficiary on the books of Infospace Canada. To cause the exercise of the Exchange Right by the Trustee, the Beneficiary shall deliver to the Trustee, in person or by certified or registered mail, at its principal corporate trust office in Toronto, Ontario or at such other places in Canada as the Trustee may from time to time designate by written notice to the Beneficiaries, the certificates representing the Exchangeable Shares which such Beneficiary desires Infospace to purchase, duly endorsed in blank for transfer, and accompanied by such other documents and instruments as may be required to effect a transfer of Exchangeable Shares under the Business Corporations Act (Ontario) and the by- laws of Infospace Canada and such additional documents and instruments as the Trustee may reasonably require together with (a) a duly completed form of notice of exercise of the Exchange Right, contained on the reverse of or attached to the Exchangeable Share certificates, stating (i) that the Beneficiary thereby instructs the Trustee to exercise the Exchange Right so as to require Infospace to purchase from the Beneficiary the number of Exchangeable Shares specified therein, (ii) that such Beneficiary has good title to and owns all such Exchangeable Shares to be acquired by Infospace free and clear of all liens, claims and encumbrances, (iii) the names in which the certificates representing Infospace Common Shares issuable in connection with the exercise of the Exchange Right are to be issued and (iv) the names and addresses of the persons to whom such new certificates should be delivered and (b) payment (or evidence satisfactory to the Trustee, Infospace Canada and Infospace of payment) of the taxes (if any) payable as contemplated by section 5.8 of this trust agreement. If only a part of the Exchangeable Shares represented by any certificate or certificates delivered to the Trustee are to be purchased by Infospace under the Exchange Right, a new certificate for the balance of such Exchangeable Shares shall be issued to the holder at the expense of Infospace Canada. 5.6 Delivery of Infospace Common Shares; Effect of Exercise Promptly after receipt of the certificates representing the Exchangeable Shares which the Beneficiary desires Infospace to purchase under the Exchange Right, together with such documents and instruments of transfer and a duly completed form of notice of exercise of the Exchange Right (and payment of taxes, if any, payable as contemplated by section 5.8 or evidence thereof, duly endorsed for transfer to Infospace, the Trustee shall notify Infospace and Infospace Canada of its receipt of the same, which notice to Infospace and Infospace Canada shall constitute exercise of the Exchange Right by the Trustee on behalf of the holder of such Exchangeable Shares, and Infospace shall promptly thereafter deliver or cause to be delivered to the Trustee, for delivery to the Beneficiary of such Exchangeable Shares (or to such other persons, if any, properly designated by such Beneficiary) the number of Infospace Common Shares issuable in connection with the exercise of the Exchange Right, and on the applicable 13 payment date cheques for the balance, if any, of the total purchase price therefor without interest (but less any amounts withheld pursuant to section 5.13); provided, however, that no such delivery shall be made unless and until the Beneficiary requesting the same shall have paid (or provided evidence satisfactory to the Trustee, Infospace Canada and Infospace of the payment of the taxes (if any) payable as contemplated by section 5.8 of this trust agreement. Immediately upon the giving of notice by the Trustee to Infospace and Infospace Canada of the exercise of the Exchange Right as provided in this section 5.6, the closing of the transaction of purchase and sale contemplated by the Exchange Right shall be deemed to have occurred and the holder of such Exchangeable Shares shall be deemed to have transferred to Infospace all of such holder's right, title and interest in and to such Exchangeable Shares and the related interest in the Trust Estate and shall cease to be a holder of such Exchangeable Shares and shall not be entitled to exercise any of the rights of a holder in respect thereof, other than the right to receive his proportionate part of the total purchase price therefor, unless the requisite number of Infospace Common Shares is not allotted, issued and delivered by Infospace to the Trustee within five Business Days of the date of the giving of such notice by the Trustee, in which case the rights of the Beneficiary shall remain unaffected until such Infospace Common Shares are so allotted, issued and delivered by Infospace. Upon delivery by Infospace to the Trustee of such Infospace Common Shares, the Trustee shall deliver such Infospace Common Shares to such Beneficiary (or to such other persons, if any, properly designated by such Beneficiary). Concurrently with such Beneficiary ceasing to be a holder of Exchangeable Shares, the Beneficiary shall be considered and deemed for all purposes to be the holder of the Infospace Common Shares delivered to it pursuant to the Exchange Right. 5.7 Exercise of Exchange Right Subsequent to Retraction In the event that a Beneficiary has exercised its right under Article 6 of the Share Provisions to require Infospace Canada to redeem any or all of the Exchangeable Shares held by the Beneficiary (the "Retracted Shares") and is notified by Infospace Canada pursuant to section [6.6] of the Share Provisions that Infospace Canada will not be permitted as a result of solvency requirements of applicable law to redeem all such Retracted Shares, and provided that Infospace Nova Scotia shall not have exercised the Retraction Call Right with respect to the Retracted Shares and that the Beneficiary has not revoked the retraction request delivered by the Beneficiary to Infospace Canada pursuant to section [6.7] of the Share Provisions, the retraction request will constitute and will be deemed to constitute notice from the Beneficiary to the Trustee instructing the Trustee to exercise the Exchange Right with respect to those Retracted Shares that Infospace Canada is unable to redeem. In any such event, Infospace Canada hereby agrees with the Trustee and in favour of the Beneficiary promptly to forward or cause to be forwarded to the Trustee all relevant materials delivered by the Beneficiary to Infospace Canada or to the transfer agent of the Exchangeable Shares (including without limitation, a copy of the retraction request delivered pursuant to section 6.1 of the Share Provisions) in connection with such proposed redemption of the Retracted Shares and the Trustee will thereupon exercise the Exchange Right with respect to the Retracted Shares that Infospace Canada is not permitted to redeem and will require Infospace to purchase such shares in accordance with the provisions of this Article 5. 14 5.8 Stamp or Other Transfer Taxes Upon any sale of Exchangeable Shares to Infospace pursuant to the Exchange Right or the Automatic Exchange Rights, the share certificate or certificates representing Infospace Common Shares to be delivered in connection with the payment of the total purchase price therefor shall be issued in the name of the Beneficiary of the Exchangeable Shares so sold or in such names as such Beneficiary may otherwise direct in writing without charge to the holder of the Exchangeable Shares so sold; provided, however, that such Beneficiary (a) shall pay (and none of Infospace, Infospace Canada or the Trustee shall be required to pay) any documentary, stamp, transfer or other taxes that may be payable in respect of any transfer involved in the issuance or delivery of such shares to a person other than such Beneficiary or (b) shall have evidenced to the satisfaction of the Trustee, Infospace and Infospace Canada that such taxes, if any, have been paid. 5.9 Notice of Insolvency Event As soon as practicable following the occurrence of an Insolvency Event or any event that with the giving of notice or the passage of time or both would be an Insolvency Event, Infospace Canada and Infospace shall give written notice thereof to the Trustee. As soon as practicable following the receipt of notice from Infospace Canada and Infospace of the occurrence of an Insolvency Event, or upon the Trustee becoming aware of an Insolvency Event, the Trustee will mail to each Beneficiary, at the expense of Infospace, a notice of such Insolvency Event, which notice shall contain a brief statement of the rights of the Beneficiaries with respect to the Exchange Right. 5.10 Qualification of Infospace Common Shares Infospace covenants that if any Infospace Common Shares to be issued and delivered pursuant to the Exchange Right or the Automatic Exchange Rights require registration or qualification with or approval of or the filing of any document, including any prospectus or similar document, or the taking of any proceeding with or the obtaining of any order, ruling or consent from any governmental or regulatory authority under any Canadian or United States federal, provincial or state law or regulation or pursuant to the rules and regulations of any regulatory authority or the fulfillment of any other Canadian or United States federal, provincial or state legal requirement before such shares may be issued and delivered by Infospace to the initial holder thereof or in order that such shares may be freely traded thereafter (other than any restrictions of general application on transfer by reason of a holder being a "control person" of Infospace for purposes of Canadian provincial securities law or an "affiliate" of Infospace for purposes of United States federal or state securities law), Infospace will in good faith expeditiously take all such actions and do all such things as are necessary or desirable to cause such Infospace Common Shares to be and remain duly registered, qualified or approved. Infospace will in good faith expeditiously take all such actions and do all such things as are reasonably necessary or desirable to cause all Infospace Common Shares to be delivered pursuant to the Exchange Right or the Automatic Exchange Rights to be listed, quoted or posted for trading on all stock exchanges and quotation systems on which outstanding Infospace Common Shares have been listed by Infospace and remain listed and are quoted or posted for trading at such time. 15 5.11 Infospace Common Shares Infospace hereby represents, warrants and covenants that the Infospace Common Shares issuable as described herein will be duly authorized and validly issued as fully paid and non-assessable and shall be free and clear of any lien, claim or encumbrance. 5.12 Automatic Exchange on Liquidation of Infospace (a) Infospace will give the Trustee notice of each of the following events at the time set forth below: (i) in the event of any determination by the board of directors of Infospace to institute voluntary liquidation, dissolution or winding-up proceedings with respect to Infospace or to effect any other distribution of assets of Infospace among its shareholders for the purpose of winding up its affairs, at least 60 days prior to the proposed effective date of such liquidation, dissolution, winding-up or other distribution; and (ii) as soon as practicable following the earlier of (A) receipt by Infospace of notice of, and (B) Infospace otherwise becoming aware of, any threatened or instituted claim, suit, petition or other proceedings with respect to the involuntary liquidation, dissolution or winding-up of Infospace or to effect any other distribution of assets of Infospace among its shareholders for the purpose of winding up its affairs, in each case where Infospace has failed to contest in good faith any such proceeding commenced in respect of Infospace within 30 days of becoming aware thereof. (b) As soon as practicable following receipt by the Trustee from Infospace of notice of any event (a "Liquidation Event") contemplated by section 5.12 (a) (i) or 5.12 (a) (ii) above, the Trustee will give notice thereof to the Beneficiaries. Such notice shall include a brief description of the automatic exchange of Exchangeable Shares for Infospace Common Shares provided for in section 5.12(c). (c) In order that the Beneficiaries will be able to participate on a pro rata basis with the holders of Infospace Common Shares in the distribution of assets of Infospace in connection with a Liquidation Event, on the fifth Business Day prior to the effective date (the "Liquidation Event Effective Date") of a Liquidation Event all of the then outstanding Exchangeable Shares shall be automatically exchanged for Infospace Common Shares. To effect such automatic exchange, Infospace shall purchase on the fifth Business Day prior to the Liquidation Event Effective Date each Exchangeable Share then outstanding and held by Beneficiaries, and each Beneficiary shall sell the Exchangeable Shares held by it at such time, for a purchase price per share equal to (a) the Current Market Price of an Infospace Common Share on the fifth Business Day prior to the Liquidation Event Effective Date, which shall be satisfied in full by Infospace issuing to the Beneficiary one Infospace Common Share, and (b) to the extent not paid by Infospace Canada, an 16 additional amount equivalent to the full amount of all declared and unpaid dividends on each such Exchangeable Share held by such holder on any dividend record date which occurred prior to the date of the exchange. (d) On the fifth Business Day prior to the Liquidation Event Effective Date, the closing of the transaction of purchase and sale contemplated by the automatic exchange of Exchangeable Shares for Infospace Common Shares shall be deemed to have occurred, and each Beneficiary shall be deemed to have transferred to Infospace all of the Beneficiary's right, title and interest in and to such Beneficiary's Exchangeable Shares and the related interest in the Trust Estate and shall cease to be a holder of such Exchangeable Shares and Infospace shall issue to the Beneficiary the Infospace Common Shares issuable upon the automatic exchange of Exchangeable Shares for Infospace Common Shares and on the applicable payment date shall deliver to the Trustee for delivery to the Beneficiary a cheque for the balance, if any, of the total purchase price for such Exchangeable Shares without interest but less any amounts withheld pursuant to section 5.13. Concurrently with such Beneficiary ceasing to be a holder of Exchangeable Shares, the Beneficiary shall be considered and deemed for all purposes to be the holder of the Infospace Common Shares issued pursuant to the automatic exchange of Exchangeable Shares for Infospace Common Shares and the certificates held by the Beneficiary previously representing the Exchangeable Shares exchanged by the Beneficiary with Infospace pursuant to such automatic exchange shall thereafter be deemed to represent Infospace Common Shares issued to the Beneficiary by Infospace pursuant to such automatic exchange. Upon the request of a Beneficiary and the surrender by the Beneficiary of Exchangeable Share certificates deemed to represent Infospace Common Shares, duly endorsed in blank and accompanied by such instruments of transfer as Infospace may reasonably require, Infospace shall deliver or cause to be delivered to the Beneficiary certificates representing Infospace Common Shares of which the Beneficiary is the holder. 5.13 Withholding Rights Infospace, Infospace Canada and the Trustee shall be entitled to deduct and withhold from any consideration otherwise payable under this trust agreement to any holder of Exchangeable Shares or Infospace Common Shares such amounts as Infospace, Infospace Canada or the Trustee is required or permitted to deduct and withhold with respect to such payment under the Income Tax Act (Canada), the United States Internal Revenue Code of 1986 or any provision of provincial, state, local or foreign tax law, in each case as amended or succeeded. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes as having been paid to the holder of the shares in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted to the appropriate taxing authority. To the extent that the amount so required or permitted to be deducted or withheld from any payment to a holder exceeds the cash portion of the consideration otherwise payable to the holder, Infospace, Infospace Canada and the Trustee are hereby authorized to sell or otherwise dispose of such portion of the consideration as is necessary to provide sufficient funds to Infospace, Infospace Canada or the Trustee, as the case may be, to 17 enable it to comply with such deduction or withholding requirement and Infospace, Infospace Canada or the Trustee shall notify the holder thereof and remit to such holder any unapplied balance of the net proceeds of such sale. Infospace represents and warrants that, based upon facts currently known to it, it has no current intention, as at the date of this Agreement, to deduct or withhold from any dividend paid to holders of Exchangeable Shares any amounts under the United States Internal Revenue Code of 1986. ARTICLE 6 RESTRICTIONS ON ISSUE OF INFOSPACE SPECIAL VOTING STOCK 6.1 Issue of Additional Shares During the term of this trust agreement, Infospace shall not, without the consent of the holders at the relevant time of Exchangeable Shares, given in accordance with subsection [10.2] of the Share Provisions, issue any Infospace Special Voting Shares in addition to the Infospace Special Voting Share. ARTICLE 7 CONCERNING THE TRUSTEE 7.1 Powers and Duties of the Trustee The rights, powers, duties and authorities of the Trustee under this trust agreement, in its capacity as Trustee of the Trust, shall include: (a) receipt and deposit of the Infospace Special Voting Share from Infospace as Trustee for and on behalf of the Beneficiaries in accordance with the provisions of this trust agreement; (b) granting proxies and distributing materials to Beneficiaries as provided in this trust agreement; (c) voting the Beneficiary Votes in accordance with the provisions of this trust agreement; (d) receiving the grant of the Exchange Right and the Automatic Exchange Rights from Infospace as Trustee for and on behalf of the Beneficiaries in accordance with the provisions of this trust agreement; (e) exercising the Exchange Right and enforcing the benefit of the Automatic Exchange Rights, in each case in accordance with the provisions of this trust agreement, and in connection therewith receiving from Beneficiaries Exchangeable Shares and other requisite documents and distributing to such Beneficiaries Infospace Common Shares and cheques, if any, to which such 18 Beneficiaries are entitled upon the exercise of the Exchange Right or pursuant to the Automatic Exchange Rights, as the case may be; (f) receiving the benefit of the Support Agreement from Infospace as Trustee for and on behalf of the Beneficiaries in accordance with the provisions thereof and of this trust agreement; (g) enforcing the benefit of the Support Agreement in accordance with the provisions thereof and of this trust agreement; (h) holding title to the Trust Estate; (i) investing any moneys, forming, from time to time, a part of the Trust Estate as provided in this trust agreement; (j) distributing any money, forming, from time to time, a part of the Trust Estate as provided in this Trust and Exchange Agreement; (k) taking action on its own initiative or at the direction of a Beneficiary or Beneficiaries to enforce the obligations of Infospace and Infospace Canada under this trust agreement and the Support Agreement; and (l) taking such other actions and doing such other things as are specifically provided in this trust agreement. In the exercise of such rights, powers, duties and authorities, the Trustee shall have (and is granted) such incidental and additional rights, powers, duties and authority not in conflict with any of the provisions of this trust agreement as the Trustee, acting in good faith and in the reasonable exercise of its discretion, may deem necessary, appropriate or desirable to effect the purpose of the Trust. Any exercise of such discretionary rights, powers, duties and authorities by the Trustee shall be final, conclusive and binding upon all persons. The Trustee in exercising its rights, powers, duties and authorities hereunder shall act honestly and in good faith and with a view to the best interests of the Beneficiaries and shall exercise the care, diligence and skill that a reasonably prudent trustee would exercise in comparable circumstances. 7.2 No Conflict of Interest The Trustee represents to Infospace and Infospace Canada that at the date of execution and delivery of this trust agreement there exists no material conflict of interest in the role of the Trustee as a fiduciary hereunder and the role of the Trustee in any other capacity. The Trustee shall, within 90 days after it becomes aware that such material conflict of interest exists, either eliminate such material conflict of interest or resign in the manner and with the effect specified in Article 10. If, notwithstanding the foregoing provisions of this section 7.2, the Trustee has such a material conflict of interest, the validity and enforceability of this trust agreement shall not be affected in any manner whatsoever by reason only of the existence of such material conflict of interest. If the Trustee contravenes the foregoing provisions of this section 7.2, any 19 interested party may apply to the Ontario Court of Justice (General Division) for an order that the Trustee be replaced as Trustee hereunder. 7.3 Dealings with Transfer Agents, Registrars, etc. Infospace and Infospace Canada irrevocably authorize the Trustee, from time to time, to: (a) consult, communicate and otherwise deal with the respective registrars and transfer agents, and with any such subsequent registrar or transfer agent, of the Exchangeable Shares and Infospace Common Shares; and (b) requisition from time to time, (i) from any such registrar or transfer agent any information readily available from the records maintained by it which the Trustee may reasonably require for the discharge of its duties and responsibilities under this agreement and (ii) from the transfer agent of Infospace Common Shares, and any subsequent transfer agent of such shares, the share certificates issuable upon the exercise from time to time of the Exchange Right and pursuant to the Automatic Exchange Rights. Infospace and Infospace Canada irrevocably authorize their respective registrars and transfer agents to comply with all such requests. Infospace covenants that it will supply its transfer agent with duly executed share certificates for the purpose of completing the exercise from time to time of the Exchange Right and the Automatic Exchange Rights. 7.4 Books and Records The Trustee shall keep available for inspection by Infospace and Infospace Canada at the Trustee's principal corporate trust office in Toronto, Ontario correct and complete books and records of account relating to the Trust created by this trust agreement, including without limitation, all relevant data relating to mailings and instructions to and from Beneficiaries. On or before March 31, 2000, and on or before March 31 in every year thereafter, so long as the Infospace Special Voting Share is on deposit with the Trustee, the Trustee shall transmit to Infospace and Infospace Canada a brief report, dated as of the preceding December 31, with respect to: (a) the property and funds comprising the Trust Estate as of that date; (b) the number of exercises of the Exchange Right, if any, and the aggregate number of Exchangeable Shares received by the Trustee on behalf of the Beneficiaries in consideration of the issuance by Infospace of Infospace Common Shares in connection with the Exchange Right, during the calendar year ended on such December 31; and (c) any action taken by the Trustee in the performance of its duties under this trust agreement which it had not previously reported and which, in the Trustee's opinion, materially affects the Trust Estate. 20 7.5 Income Tax Returns and Reports The Trustee shall, to the extent necessary, prepare and file on behalf of the Trust appropriate United States and Canadian income tax returns and any other returns or reports as may be required by applicable law or pursuant to the rules and regulations of any securities exchange or other trading system through which the Exchangeable Shares are traded. 7.6 Indemnification Prior to Certain Actions by Trustee The Trustee shall exercise any or all of the rights, duties, powers or authorities vested in it by this trust agreement at the request, order or direction of any Beneficiary upon such Beneficiary furnishing to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred by the Trustee therein or thereby, provided that no Beneficiary shall be obligated to furnish to the Trustee any such security or indemnity in connection with the exercise by the Trustee of any of its rights, duties, powers and authorities with respect to the Infospace Special Voting Share pursuant to Article 4, subject to section 7.15. None of the provisions contained in this trust agreement shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the exercise of any of its rights, powers, duties, or authorities unless funded, given security and indemnified as aforesaid. 7.7 Action of Beneficiaries No Beneficiary shall have the right to institute any action, suit or proceeding or to exercise any other remedy authorized by this trust agreement for the purpose of enforcing any of its rights hereunder or in connection with the Exchangeable Shares or for the execution of any trust or power hereunder unless the Beneficiary has requested the Trustee to take or institute such action, suit or proceeding and furnished the Trustee with the security or indemnity referred to in section 7.6 and the Trustee shall have failed to act within a reasonable time thereafter. In such case, but not otherwise, the Beneficiary shall be entitled to take proceedings in any court of competent jurisdiction such as the Trustee might have taken; it being understood and intended that no one or more Beneficiaries shall have any right in any manner whatsoever to affect, disturb or prejudice the rights hereby created by any such action, or to enforce any right hereunder or the Voting Rights, except subject to the conditions and in the manner herein provided, and that all powers and trusts hereunder shall be exercised and all proceedings at law shall be instituted, had and maintained by the Trustee, except only as herein provided, and in any event for the equal benefit of all Beneficiaries. 7.8 Reliance Upon Declarations The Trustee shall not be considered to be in contravention of any its rights, powers, duties and authorities hereunder if, when required, it acts and relies in good faith upon statutory declarations, certificates, opinions or reports furnished pursuant to the provisions hereof or required by the Trustee to be furnished to it in the exercise of its rights, powers, duties and authorities hereunder if such statutory declarations, certificates, opinions or reports comply with the provisions of section 7.9, if applicable, and with any other applicable provisions of this trust agreement. 21 7.9 Evidence and Authority to Trustee Infospace and/or Infospace Canada shall furnish to the Trustee evidence of compliance with the conditions provided for in this trust agreement relating to any action or step required or permitted to be taken by Infospace and/or Infospace Canada or the Trustee under this trust agreement or as a result of any obligation imposed under this trust agreement, including, without limitation, in respect of the Voting Rights or the Exchange Right or the Automatic Exchange Rights and the taking of any other action to be taken by the Trustee at the request of or on the application of Infospace and/or Infospace Canada promptly if and when: (a) such evidence is required by any other section of this trust agreement to be furnished to the Trustee in accordance with the terms of this section 7.9; or (b) the Trustee, in the exercise of its rights, powers, duties and authorities under this trust agreement, gives Infospace and/or Infospace Canada written notice requiring it to furnish such evidence in relation to any particular action or obligation specified in such notice. Such evidence shall consist of an Officer's Certificate of Infospace and/or Infospace Canada or a statutory declaration or a certificate made by persons entitled to sign an Officer's Certificate stating that any such condition has been complied with in accordance with the terms of this trust agreement. Whenever such evidence relates to a matter other than the Voting Rights or the Exchange Right or the Automatic Exchange Rights or the taking of any other action to be taken by the Trustee at the request or on the application of Infospace and/or Infospace Canada, and except as otherwise specifically provided herein, such evidence may consist of a report or opinion of any solicitor, attorney, auditor, accountant, appraiser, valuer, engineer or other expert or any other person whose qualifications give authority to a statement made by him, provided that if such report or opinion is furnished by a director, officer or employee of Infospace and/or Infospace Canada it shall be in the form of an Officer's Certificate or a statutory declaration. Each statutory declaration, Officer's Certificate, opinion or report furnished to the Trustee as evidence of compliance with a condition provided for in this trust agreement shall include a statement by the person giving the evidence: (a) declaring that he has read and understands the provisions of this trust agreement relating to the condition in question; (b) describing the nature and scope of the examination or investigation upon which he based the statutory declaration, certificate, statement or opinion: and (c) declaring that he has made such examination or investigation as he believes is necessary to enable him to make the statements or give the opinions contained or expressed therein. 22 7.10 Experts, Advisers and Agents The Trustee may: (a) in relation to these presents act and rely on the opinion or advice of or information obtained from any solicitor, attorney, auditor, accountant, appraiser, valuer, engineer or other expert, whether retained by the Trustee or by Infospace and/or Infospace Canada or otherwise, and may employ such assistants as may be necessary to the proper discharge of its powers and duties and determination of its rights hereunder and may pay proper and reasonable compensation for all such legal and other advice or assistance as aforesaid; and (b) employ such agents and other assistants as it may reasonably require for the proper discharge of its powers and duties hereunder, and may pay reasonable remuneration for all services performed for it (and shall be entitled to receive reasonable remuneration for all services performed by it) in the discharge of the trusts hereof and compensation for all disbursements, costs and expenses made or incurred by it in the discharge of its duties hereunder and in the management of the Trust. 7.11 Investment of Moneys Held by Trustee Unless otherwise provided in this trust agreement, any moneys held by or on behalf of the Trustee which under the terms of this trust agreement may or ought to be invested or which may be on deposit with the Trustee or which may be in the hands of the Trustee may be invested and reinvested in the name or under the control of the Trustee in securities in which, under the laws of the Province of Ontario, trustees are authorized to invest trust moneys, provided that such securities are stated to mature within two years after their purchase by the Trustee, and the Trustee shall so invest such moneys on the written direction of Infospace Canada. Pending the investment of any moneys as hereinbefore provided, such moneys may be deposited in the name of the Trustee in any chartered bank in Canada or, with the consent of Infospace Canada, in the deposit department of the Trustee or any other loan or trust company authorized to accept deposits under the laws of Canada or any province thereof at the rate of interest then current on similar deposits. 7.12 Trustee Not Required to Give Security The Trustee shall not be required to give any bond or security in respect of the execution of the trusts, rights, duties, powers and authorities of this trust agreement or otherwise in respect of the premises. 7.13 Trustee Not Bound to Act on Request Except as in this trust agreement otherwise specifically provided, the Trustee shall not be bound to act in accordance with any direction or request of Infospace and/or Infospace Canada or of the directors thereof until a duly authenticated copy of the instrument or resolution containing such direction or request shall have been delivered to the Trustee, and the Trustee shall be 23 empowered to act upon any such copy purporting to be authenticated and believed by the Trustee to be genuine. 7.14 Authority to Carry on Business The Trustee represents to Infospace and Infospace Canada that at the date of execution and delivery by it of this trust agreement it is authorized to carry on the business of a trust company in each of the Provinces of Canada but if, notwithstanding the provisions of this section 7.14, it ceases to be so authorized to carry on business, the validity and enforceability of this trust agreement and the Voting Rights, the Exchange Right and the Automatic Exchange Rights shall not be affected in any manner whatsoever by reason only of such event but the Trustee shall, within 90 days after ceasing to be authorized to carry on the business of a trust company in any Province of Canada, either become so authorized or resign in the manner and with the effect specified in Article 10. 7.15 Conflicting Claims If conflicting claims or demands are made or asserted with respect to any interest of any Beneficiary in any Exchangeable Shares, including any disagreement between the heirs, representatives, successors or assigns succeeding to all or any part of the interest of any Beneficiary in any Exchangeable Shares, resulting in conflicting claims or demands being made in connection with such interest, then the Trustee shall be entitled, at its sole discretion, to refuse to recognize or to comply with any such claims or demands. In so refusing, the Trustee may elect not to exercise any Voting Rights, Exchange Rights or Automatic Exchange Rights subject to such conflicting claims or demands and, in so doing, the Trustee shall not be or become liable to any person on account of such election or its failure or refusal to comply with any such conflicting claims or demands. The Trustee shall be entitled to continue to refrain from acting and to refuse to act until: (a) the rights of all adverse claimants with respect to the Voting Rights, Exchange Right or Automatic Exchange Rights subject to such conflicting claims or demands have been adjudicated by a final judgment of a court of competent jurisdiction; or (b) all differences with respect to the Voting Rights, Exchange Right or Automatic Exchange Rights subject to such conflicting claims or demands have been conclusively settled by a valid written agreement binding on all such adverse claimants, and the Trustee shall have been furnished with an executed copy of such agreement certified to be in full force and effect. (c) If the Trustee elects to recognize any claim or comply with any demand made by any such adverse claimant, it may in its discretion require such claimant to furnish such surety bond or other security satisfactory to the Trustee as it shall deem appropriate to fully indemnify it as between all conflicting claims or demands. 24 7.16 Acceptance of Trust The Trustee hereby accepts the Trust created and provided for by and in this trust agreement and agrees to perform the same upon the terms and conditions herein set forth and to hold all rights, privileges and benefits conferred hereby and by law in trust for the various persons who shall from time to time be Beneficiaries, subject to all the terms and conditions herein set forth. ARTICLE 8 COMPENSATION 8.1 Fees and Expenses of the Trustee Infospace and Infospace Canada jointly and severally agree to pay the Trustee reasonable compensation for all of the services rendered by it under this trust agreement and will reimburse the Trustee for all reasonable expenses (including taxes other than taxes based on the net income of the Trustee) and disbursements, including the cost and expense of any suit or litigation of any character and any proceedings before any governmental agency reasonably incurred by the Trustee in connection with its duties under this trust agreement; provided that Infospace and Infospace Canada shall have no obligation to reimburse the Trustee for any expenses or disbursements paid, incurred or suffered by the Trustee in any suit or litigation in which the Trustee is determined to have acted in bad faith or with negligence, recklessness or willful misconduct. ARTICLE 9 INDEMNIFICATION AND LIMITATION OF LIABILITY 9.1 Indemnification of the Trustee Infospace and Infospace Canada jointly and severally agree to indemnify and hold harmless the Trustee and each of its directors, officers and agents appointed and acting in accordance with this trust agreement (collectively, the "Indemnified Parties") against all claims, losses, damages, reasonable costs, penalties, fines and reasonable expenses (including reasonable expenses of the Trustee's legal counsel) which, without fraud, negligence, recklessness, willful misconduct or bad faith on the part of such Indemnified Party, may be paid, incurred or suffered by the Indemnified Party by reason or as a result of the Trustee's acceptance or administration of the Trust, its compliance with its duties set forth in this trust agreement, or any written or oral instruction delivered to the Trustee by Infospace or Infospace Canada pursuant hereto. In no case shall Infospace or Infospace Canada be liable under this indemnity for any claim against any of the Indemnified Parties unless Infospace and Infospace Canada shall be notified by the Trustee of the written assertion of a claim or of any action commenced against the Indemnified Parties, promptly after any of the Indemnified Parties shall have received any such written assertion of a claim or shall have been served with a summons or other first legal process giving information as to the nature and basis of the claim. Subject to (ii) below, Infospace and Infospace Canada shall be entitled to participate at their own expense in the defence and, if 25 Infospace and Infospace Canada so elect at any time after receipt of such notice, either of them may assume the defence of any suit brought to enforce any such claim. The Trustee shall have the right to employ separate counsel in any such suit and participate in the defence thereof but the fees and expenses of such counsel shall be at the expense of the Trustee unless: (i) the employment of such counsel has been authorized by Infospace or Infospace Canada; or (ii) the named parties to any such suit include both the Trustee and Infospace or Infospace Canada, acting reasonably, and the Trustee shall have been advised by counsel acceptable to Infospace or Infospace Canada that there may be one or more legal defences available to the Trustee that are different from or in addition to those available to Infospace or Infospace Canada and that, in the judgment of such counsel, would present a conflict of interest were a joint representation to be undertaken (in which case Infospace and Infospace Canada shall not have the right to assume the defence of such suit on behalf of the Trustee but shall be liable to pay the reasonable fees and expenses of counsel for the Trustee). 9.2 Limitation of Liability The Trustee shall not be held liable for any loss which may occur by reason of depreciation of the value of any part of the Trust Estate or any loss incurred on any investment of funds pursuant to this trust agreement, except to the extent that such loss is attributable to the fraud, negligence, recklessness, willful misconduct or bad faith on the part of the Trustee. ARTICLE 10 CHANGE OF TRUSTEE 10.1 Resignation The Trustee, or any trustee hereafter appointed, may at any time resign by giving written notice of such resignation to Infospace and Infospace Canada specifying the date on which it desires to resign, provided that such notice shall not be given less than one month before such desired resignation date unless Infospace and Infospace Canada otherwise agree and provided further that such resignation shall not take effect until the date of the appointment of a successor trustee and the acceptance of such appointment by the successor trustee. Upon receiving such notice of resignation, Infospace and Infospace Canada shall, with the approval of a majority of the holders of Exchangeable Shares in accordance with section 2.10.2 of the Share Provisions, promptly appoint a successor trustee by written instrument in duplicate, one copy of which shall be delivered to the resigning trustee and one copy to the successor trustee. 10.2 Removal The Trustee, or any trustee hereafter appointed, may (provided a successor trustee is appointed) be removed at any time on not less than 30 days' prior notice by affirmative vote of a majority of holders of Exchangeable Shares in accordance with section 2.10.2 of the Share Provisions. 26 10.3 Successor Trustee Any successor trustee appointed as provided under this trust agreement shall execute, acknowledge and deliver to Infospace and Infospace Canada and to its predecessor trustee an instrument accepting such appointment. Thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor under this trust agreement, with the like effect as if originally named as trustee in this trust agreement. However, on the written request of Infospace and Infospace Canada or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of this trust agreement, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon the request of any such successor trustee, Infospace, Infospace Canada and such predecessor trustee shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. 10.4 Notice of Successor Trustee Upon acceptance of appointment by a successor trustee as provided herein, Infospace and Infospace Canada shall cause to be mailed notice of the succession of such trustee hereunder to each Beneficiary specified in a List. If Infospace or Infospace Canada shall fail to cause such notice to be mailed within 10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of Infospace and Infospace Canada. ARTICLE 11 INFOSPACE SUCCESSORS 11.1 Certain Requirements in Respect of Combination, etc. Infospace and Infospace Canada shall not consummate any transaction (whether by way of reconstruction, reorganization, consolidation, merger, transfer, sale, lease or otherwise) whereby all or substantially all of its undertaking, property and assets would become the property of any other person or, in the case of a merger, of the continuing corporation resulting therefrom unless, but may do so if: (a) such other person or continuing corporation (herein called the "Infospace Successor"), by operation of law, becomes, without, bound by the terms and provisions of this trust agreement or, if not so bound, executes, prior to or contemporaneously with the consummation of such transaction, a trust agreement supplemental hereto and such other instruments (if any) as are satisfactory to the Trustee, acting reasonably, and in the opinion of legal counsel to the Trustee are reasonably necessary or advisable to evidence the assumption by the Infospace Successor of liability for all moneys payable and property deliverable hereunder and the covenant of such Infospace Successor to pay and deliver or cause to be 27 delivered the same and its agreement to observe and perform all the covenants and obligations of Infospace under this trust agreement; and (b) such transaction shall, to the satisfaction of the Trustee, acting reasonably, and in the opinion of legal counsel to the Trustee, be upon such terms and conditions as substantially to preserve and not to impair in any material respect any of the rights, duties, powers and authorities of the Trustee or of the Beneficiaries hereunder. 11.2 Vesting of Powers in Successor Whenever the conditions of section 11.1 have been duly observed and performed, the Trustee and, if required by section 11.1, Infospace Successor and Infospace Canada or Infospace, as the case may be, shall execute and deliver the supplemental trust agreement provided for in Article 12 and thereupon Infospace Successor shall possess and from time to time may exercise each and every right and power of Infospace Canada or Infospace, as the case may be, under this trust agreement in the name of Infospace or otherwise any act or proceeding by any provision of this trust agreement required to be done or performed by the Board of Directors of Infospace or any officers of Infospace may be done and performed with like force and effect by the directors or officers of such Infospace Successor. 11.3 Wholly-Owned Subsidiaries Nothing herein shall be construed as preventing the amalgamation or merger of any wholly-owned direct or indirect subsidiary of Infospace, except Infospace Canada, with or into Infospace or the winding-up, liquidation or dissolution of any wholly-owned subsidiary of Infospace, other than Infospace Canada, provided that all of the assets of such subsidiary are transferred to Infospace or another wholly-owned direct or indirect subsidiary of Infospace, except Infospace Canada, and any such transactions are expressly permitted by this Article 11. ARTICLE 12 AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS 12.1 Amendments, Modifications, etc. This trust agreement may not be amended or modified except by an agreement in writing executed by Infospace, Infospace Canada and the Trustee and approved by the Beneficiaries in accordance with subsection [2.11.2] of the Share Provisions. 12.2 Ministerial Amendments Notwithstanding the provisions of section 12.1, the parties to this trust agreement may in writing, at any time and from time to time, without the approval of the Beneficiaries, amend or modify this trust agreement for the purposes of: (a) adding to the covenants of any or all parties hereto for the protection of the Beneficiaries hereunder provided that the Board of Directors of each of Infospace 28 Canada and Infospace and the Trustee shall be of the good faith opinion that such additions will not be prejudicial to the rights or interests of the Beneficiaries; (b) making such amendments or modifications not inconsistent with this trust agreement as may be necessary or desirable with respect to matters or questions which, in the good faith opinion of the Board of Directors of each of Infospace and Infospace Canada and in the opinion of the Trustee, having in mind the best interests of the Beneficiaries it may be expedient to make, provided that such Boards of Directors and the Trustee shall be of the opinion that such amendments and modifications will not be prejudicial to the interests of the Beneficiaries; or (c) making such changes or corrections which, on the advice of counsel to Infospace, Infospace Canada and the Trustee, are required for the purpose of curing or correcting any ambiguity or defect or inconsistent provision or clerical omission or mistake or manifest error, provided that the Trustee and the Board of Directors of each of Infospace and Infospace Canada shall be of the opinion that such changes or corrections will not be prejudicial to the rights and interests of the Beneficiaries. 12.3 Meeting to Consider Amendments Infospace Canada, at the request of Infospace, shall call a meeting or meetings of the Beneficiaries for the purpose of considering any proposed amendment or modification requiring approval pursuant hereto. Any such meeting or meetings shall be called and held in accordance with the by-laws of Infospace Canada, the Share Provisions and all applicable laws. 12.4 Changes in Capital of Infospace and Infospace Canada At all times after the occurrence of any event contemplated pursuant to section 2.7 or 2.8 of the Support Agreement or otherwise, as a result of which either Infospace Common Shares or the Exchangeable Shares or both are in any way changed, this trust agreement shall forthwith be amended and modified as necessary in order that it shall apply with full force and effect, with appropriate changes to all new securities into which Infospace Common Shares or the Exchangeable Shares or both are so changed and the parties hereto shall execute and deliver a supplemental trust agreement giving effect to and evidencing such necessary amendments and modifications. 12.5 Execution of Supplemental Trust Agreements No amendment to or modification or waiver of any of the provisions of this trust agreement otherwise permitted hereunder shall be effective unless made in writing and signed by all of the parties hereto. From time to time Infospace Canada (when authorized by a resolution of its Board of Directors), Infospace (when authorized by a resolution of its Board of Directors) and the Trustee may, subject to the provisions of these presents, and they shall, when so directed by these presents, execute and deliver by their proper officers, trust agreements or other instruments supplemental hereto, which thereafter shall form part hereof, for any one or more of the following purposes: 29 (a) evidencing the succession of Infospace Successors and the covenants of and obligations assumed by each such Infospace Successor in accordance with the provisions of Article 11 and the successors of any successor trustee in accordance with the provisions of Article 10; (b) making any additions to, deletions from or alterations of the provisions of this trust agreement or the Voting Rights, the Exchange Right or the Automatic Exchange Rights which, in the opinion of the Trustee, will not be prejudicial to the interests of the Beneficiaries or are, in the opinion of counsel to the Trustee, necessary or advisable in order to incorporate, reflect or comply with any legislation the provisions of which apply to Infospace, Infospace Canada, the Trustee or this trust agreement; and (c) for any other purposes not inconsistent with the provisions of this trust agreement, including without limitation, to make or evidence any amendment or modification to this trust agreement as contemplated hereby, provided that, in the opinion of the Trustee, the rights of the Trustee and Beneficiaries will not be prejudiced thereby. ARTICLE 13 TERMINATION 13.1 Term The Trust created by this trust agreement shall continue until the earliest to occur of the following events: (a) no outstanding Exchangeable Shares are held by a Beneficiary; and (b) each of Infospace and Infospace Canada elects in writing to terminate the Trust and such termination is approved by the Beneficiaries in accordance with subsection [2.11.2] of the Share Provisions. 13.2 Survival of Agreement This trust agreement shall survive any termination of the Trust and shall continue until there are no Exchangeable Shares outstanding held by a Beneficiary; provided, however, that the provisions of Articles 8 and 9 shall survive any such termination of this trust agreement. ARTICLE 14 GENERAL 14.1 Severability If any provision of this trust agreement is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this trust agreement shall not in any way 30 be affected or impaired thereby and the agreement shall be carried out as nearly as possible in accordance with its original terms and conditions. 14.2 Enurement This trust agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns and to the benefit of the Beneficiaries. 14.3 Notices to Parties All notices and other communications between the parties hereunder shall be in writing and shall be deemed to have been given if delivered personally or by confirmed telecopy to the parties at the following addresses (or at such other address for such party as shall be specified in like notice): if to Attention: President Telecopier No.: if to Infospace: Attention: General Counsel Telecopier No.: if to the Trustee: Montreal Trust Company of Canada 151 Front Street West Suite 800 Toronto, Ontario M5J 2N1 Attention: Manager, Corporate Trust Telecopier No.: (416) 981-9777 Any notice or other communication given personally shall be deemed to have been given and received upon delivery thereof and if given by telecopy shall be deemed to have been given and 31 received on the date of receipt thereof unless such day is not a Business Day in which case it shall be deemed to have been given and received upon the immediately following Business Day. 14.4 Notice to Beneficiaries Any and all notices to be given and any documents to be sent to any Beneficiaries may be given or sent to the address of such Beneficiary shown on the register of holders of Exchangeable Shares in any manner permitted by the by-laws of Infospace Canada from time to time in force in respect of notices to shareholders and shall be deemed to be received (if given or sent in such manner) at the time specified in such by-laws, the provisions of which by-laws shall apply mutatis mutandis to notices or documents as aforesaid sent to such Beneficiaries. 14.5 Counterparts This trust agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 14.6 Jurisdiction This trust agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. 14.7 Attornment Each of the Trustee and Infospace and Infospace Canada agrees that any action or proceeding arising out of or relating to this trust agreement may be instituted in the courts of Ontario, waives any objection which it may have now or hereafter to the venue of any such action or proceeding, irrevocably submits to the jurisdiction of the said courts in any such action or proceeding, agrees to be bound by any final judgment of the said courts and not to seek, and hereby waives, any review of the merits of any such judgment by the courts of any other jurisdiction and hereby appoints Infospace Canada at its registered office in the Province of Ontario as attorney for service of process. IN WITNESS WHEREOF the parties hereto have caused this trust agreement to be duly executed as of the date first above written. INFOSPACE.COM, INC. By:________________________________ Name: Title: INFOSPACE.COM CANADA HOLDINGS INC. 32 By:________________________________ Name: Title: MONTREAL TRUST COMPANY OF CANADA By:________________________________ Name: Title: By:_____________________________C.S. Name: Title: EX-99.3 10 FORM OF EXCHANGEABLE SHARE SUPPORT AGMT EXHIBIT 99.3 EXCHANGEABLE SHARE SUPPORT AGREEMENT This AGREEMENT is made the . day of September, 1999 BETWEEN: INFOSPACE.COM, INC., a corporation incorporated under the laws of Delaware ("Infospace") - and - INFOSPACE.COM NOVA SCOTIA COMPANY, an unlimited liability company existing under the laws of the Province of Nova Scotia ("Infospace Nova Scotia") - and - INFOSPACE.COM CANADA HOLDINGS INC., a corporation amalgamated under the laws of Ontario ("Infospace Canada") MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated under the laws of Canada, (the"Trustee") Background: 1. Pursuant to that certain Agreement and Plan of Acquisition and Arrangement dated as of the 13th day of August, 1999 (the "Arrangement and Acquisition Agreement"), entered into between Infospace and INEX Corporation ("INEX" and collectively the "Parties"), the Parties have agreed to the acquisition of INEX Corporation by Infospace, pursuant to a court sanctioned plan of arrangement (the "Arrangement"). 2. Pursuant to the Arrangement and Acquisition Agreement, common shareholders of INEX will have the option of exchanging their common shares of INEX ("INEX Common Shares"), for common shares in the capital of Infospace ("Infospace Common Shares") or exchangeable shares in the capital of Infospace Canada (the "Exchangeable Shares") on the basis 2 of .20405 of an Exchangeable Share or an Infospace Common Share for each INEX Common Share. 3. In accordance with the Arrangement and Acquisition Agreement, Infospace and Infospace Canada are hereby entering into this support agreement with a trustee appointed by the holders of such Exchangeable Shares. 4. The Trustee has been appointed and his duties and powers and ancillary matters have been set out in a Voting and Exchange Trust Agreement dated the date hereof. NOW THEREFORE in consideration of the respective covenants and agreements provided in this agreement and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto covenant and agree as follows: ARTICLE 1 DEFINITIONS AND INTERPRETATION 1.1 Defined Terms Each term denoted herein by initial capital letters and not otherwise defined herein shall have the meaning ascribed thereto in the rights, privileges, restrictions and conditions (collectively, the "Share Provisions") attaching to the Exchangeable Shares. "Special Voting Share" means the one share of special voting stock to be issued by Infospace and deposited with the Trustee pursuant to the Voting and Exchange Trust Agreement. 1.2 Interpretation Not Affected by Headings The division of this agreement into Articles, sections and other portions and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this agreement. Unless otherwise indicated, all references to an "Article" or "section" followed by a number and/or a letter refer to the specified Article or section of this agreement. The terms "this agreement", "hereof", "herein" and "hereunder" and similar expressions refer to this agreement and not to any particular Article, section or other portion hereof and include any agreement or instrument supplementary or ancillary hereto. 1.3 Number, Gender Words in the singular number only shall include the plural and vice versa. Words in one gender shall include all genders. 1.4 Date for any Action If any date on which any action is required to be taken under this agreement is not a Business Day, such action shall be required to be taken on the next succeeding Business Day. 3 1.5 Trustee The Trustee shall have the powers and duties set out in the Voting and Exchange Trust Agreement and shall be compensated and replaced as provided for therein. ARTICLE 2 COVENANTS OF INFOSPACE AND INFOSPACE CANADA 2.1 Covenants Regarding Exchangeable Shares So long as any Exchangeable Shares not owned by Infospace or its Affiliates are outstanding, Infospace shall: (a) not declare or pay any dividend on the Infospace Common Shares unless (i) Infospace Canada shall simultaneously declare or pay, as the case may be, an equivalent dividend (as provided for in the Share Provisions) on the Exchangeable Shares and (ii) Infospace Canada shall have sufficient money or other assets or authorized but unissued securities available to enable the due declaration and the due and punctual payment, in accordance with applicable law, of any such dividend on the Exchangeable Shares; (b) advise Infospace Canada sufficiently in advance of the declaration by Infospace of any dividend on Infospace Common Shares and take all such other actions as are reasonably necessary, in cooperation with Infospace Canada, to ensure that the respective declaration date, record date and payment date for a dividend on the Exchangeable Shares shall be the same as the declaration date, record date and payment date for the corresponding dividend on the Infospace Common Shares; (c) ensure that the record date for any dividend declared on Infospace Common Shares is not less than 10 Business Days after the declaration date of such dividend; (d) take all such actions and do all such things as are reasonably necessary or desirable to enable and permit Infospace Canada, in accordance with applicable law, to pay and otherwise perform its obligations with respect to the satisfaction of the Liquidation Amount, the Retraction Price or the Redemption Price in respect of each issued and outstanding Exchangeable Share upon the liquidation, dissolution or winding-up of Infospace Canada, the delivery of a Retraction Request by a holder of Exchangeable Shares or a redemption of Exchangeable Shares by Infospace Canada, as the case may be, including without limitation all such actions and all such things as are necessary or desirable to enable and permit Infospace Canada to cause to be delivered Infospace Common Shares to the holders of Exchangeable Shares in accordance with the provisions of Section 5, 6 or 7, as the case may be, of the Share Provisions; 4 (e) take all such actions and do all such things as are reasonably necessary or desirable to enable and permit Infospace Nova Scotia, in accordance with applicable law, to perform its obligations arising upon the exercise by it of the Liquidation Call Right, the Retraction Call Right or the Redemption Call Right including without limitation all such actions and all such things as are necessary or desirable to enable and permit Infospace Nova Scotia to cause to be delivered Infospace Common Shares to the holders of Exchangeable Shares in accordance with the provisions of Section [8], as the case may be, of the Share Provisions; and (f) not exercise its vote as a direct or indirect shareholder to initiate the voluntary liquidation, dissolution or winding-up of Infospace Canada nor take any action or omit to take any action that is designed to result in the liquidation, dissolution or winding-up of Infospace Canada. 2.2 Segregation of Funds Infospace will cause Infospace Canada to deposit a sufficient amount of funds in a separate account of Infospace Canada and segregate a sufficient amount of such other assets and property as is necessary to enable Infospace Canada to pay dividends when due and to pay or otherwise satisfy its respective obligations under Section 5, 6 or 7 of the Share Provisions, as applicable and Infospace Canada will use such funds or other assets exclusively to pay such dividends or satisfy its obligations under Sections 5, 6 or 7 of the Share Provisions. 2.3 Reservation of Infospace Common Shares Infospace hereby represents, warrants and covenants in favour of Infospace Nova Scotia, Infospace Canada and the Trustee that Infospace has reserved for issuance and will, at all times while any Exchangeable Shares (other than Exchangeable Shares held by Infospace or its affiliates) are outstanding, keep available, free from pre-emptive and other rights, out of its authorized and unissued capital stock such number of Infospace Common Shares (or other shares or securities into which Infospace Common Shares may be reclassified or changed as contemplated by section 2.7 hereof) (a) as is equal to the sum of (i) the number of Exchangeable Shares issued and outstanding from time to time and (ii) the number of Exchangeable Shares issuable upon the exercise of all rights to acquire Exchangeable Shares outstanding from time to time and (b) as are now and may hereafter be required to enable and permit Infospace to meet its obligations under the Voting and Exchange Trust Agreement and under any other security or commitment pursuant to which Infospace may now or hereafter be required to issue Infospace Common Shares, to enable and permit Infospace Nova Scotia and Infospace Canada to meet its respective obligations hereunder and under the Share Provisions. 5 2.4 Notification of Certain Events In order to assist Infospace and to permit Infospace Nova Scotia to exercise the Liquidation Call Right, Retraction Call Right and Redemption Call Right, Infospace Canada will notify Infospace, Infospace Nova Scotia and the Trustee of each of the following events at the time set forth below: (a) in the event of any determination by the Board of Directors of Infospace Canada to institute voluntary liquidation, dissolution or winding-up proceedings with respect to Infospace Canada or to effect any other distribution of the assets of Infospace Canada among its shareholders for the purpose of winding up its affairs, at least 60 days prior to the proposed effective date of such liquidation, dissolution, winding-up or other distribution; (b) promptly, upon the earlier of receipt by Infospace Canada of notice of and Infospace Canada otherwise becoming aware of any threatened or instituted claim, suit, petition or other proceedings with respect to the involuntary liquidation, dissolution or winding-up of Infospace Canada or to effect any other distribution of the assets of Infospace Canada among its shareholders for the purpose of winding up its affairs; (c) immediately, upon receipt by Infospace Canada of a Retraction Request; (d) on the same date on which notice of redemption is given to holders of Exchangeable Shares, upon the determination of a Redemption Date in accordance with the Share Provisions; and (e) as soon as practicable upon the issuance by Infospace Canada of any Exchangeable Shares or rights to acquire Exchangeable Shares. 2.5 Delivery of Common Shares to Infospace Canada and Infospace Nova Scotia Upon notice from Infospace Canada or Infospace Nova Scotia of any event that requires Infospace Canada or Infospace Nova Scotia to cause to be delivered Infospace Common Shares to any holder of Exchangeable Shares, Infospace shall forthwith issue and deliver or cause to be delivered to Infospace Canada or Infospace Nova Scotia the requisite number of Infospace Common Shares to be received by, and issued to or to the order of, the former holder of the surrendered Exchangeable Shares, as Infospace Canada or Infospace Nova Scotia shall direct. All such Infospace Common Shares shall be duly authorized and validly issued as fully paid and non-assessable and shall be free and clear of any lien, claim or encumbrance. In consideration of the issuance and delivery of each such Infospace Common Share, Infospace Canada or Infospace Nova Scotia, as the case may be, shall issue to Infospace, or as Infospace shall direct, common shares of Infospace Canada or Infospace Nova Scotia having equivalent value. 6 2.6 Qualification of Infospace Common Shares If any Infospace Common Shares (or other shares or securities into which Infospace Common Shares may be reclassified or changed as contemplated by section 2.7 hereof) to be issued and delivered hereunder require registration or qualification with or approval of or the filing of any document, including any prospectus or similar document or the taking of any proceeding with or the obtaining of any order, ruling or consent from any governmental or regulatory authority under any Canadian or United States federal, provincial or state securities or other law or regulation or pursuant to the rules and regulations of any securities or other regulatory authority or the fulfillment of any other United States or Canadian legal requirement before such shares (or such other shares or securities) may be issued by Infospace and delivered by Infospace at the direction of Infospace Canada or Infospace Nova Scotia, if applicable, to the holder of surrendered Exchangeable Shares or in order that such shares (or such other shares or securities) may be freely traded thereafter in Canada and the United States (other than any restrictions of general application on transfer by reason of a holder being a "control person" for purposes of Canadian provincial securities law or an "affiliate" of Infospace for purposes of United States federal or state securities law), Infospace will in good faith expeditiously take all such actions and do all such things as are necessary or desirable to cause such Infospace Common Shares (or such other shares or securities) to be and remain duly registered, qualified or approved under United States and/or Canadian law, as the case may be. Infospace will in good faith expeditiously take all such actions and do all such things as are reasonably necessary or desirable to cause all Infospace Common Shares (or such other shares or securities) to be delivered hereunder to be listed, quoted or posted for trading on all stock exchanges and quotation systems on which outstanding Infospace Common Shares (or such other shares or securities) have been listed by Infospace and remain listed and are quoted or posted for trading at such time. 2.7 Economic Equivalence. (a) Infospace will not without prior approval of Infospace Canada and the prior approval of the holders of the Exchangeable Shares given in accordance with section [11 or 12] of the Share Provisions: (i) issue or distribute Infospace Common Shares (or securities exchangeable for or convertible into or carrying rights to acquire Infospace Common Shares) to the holders of all or substantially all of the then outstanding Infospace Common Shares by way of stock dividend or other distribution, other than an issue of Infospace Common Shares (or securities exchangeable for or convertible into or carrying rights to acquire Infospace Common Shares) to holders of Infospace Common Shares who exercise an option to receive dividends in Infospace Common Shares (or securities exchangeable for or convertible into or carrying rights to acquire Infospace Common Shares) in lieu of receiving cash dividends; or (ii) issue or distribute rights, options or warrants to the holders of all or substantially all of the then outstanding Infospace Common Shares 7 entitling them to subscribe for or to purchase Infospace Common Shares (or securities exchangeable for or convertible into or carrying rights to acquire Infospace Common Shares); or (iii) issue or distribute to the holders of all or substantially all of the then outstanding Infospace Common Shares (A) shares or securities of Infospace of any class other than Infospace Common Shares (other than shares convertible into or exchangeable for or carrying rights to acquire Infospace Common Shares), (B) rights, options or warrants other than those referred to in section 2.7(a)(ii) above, (C) evidences of indebtedness of Infospace or (D) assets of Infospace, unless the economic equivalent on a per share basis of such rights, options, securities, shares, evidences of indebtedness or other assets is issued or distributed simultaneously to holders of the Exchangeable Shares; provided that, for greater certainty, the above restrictions shall not apply to any securities issued or distributed by Infospace in order to give effect to and to consummate the transactions contemplated by, and in accordance with, the Arrangement and Acquisition Agreement. (b) Infospace will not without the prior approval of Infospace Canada and the prior approval of the holders of the Exchangeable Shares given in accordance with section [11 or 12] of the Share Provisions: (i) subdivide, redivide or change the then outstanding Infospace Common Shares into a greater number of Infospace Common Shares; or (ii) reduce, combine, consolidate or change the then outstanding Infospace Common Shares into a lesser number of Infospace Common Shares; or (iii) reclassify or otherwise change Infospace Common Shares or effect an amalgamation, merger, reorganization or other transaction affecting Infospace Common Shares, unless the same or an economically equivalent change shall simultaneously be made to, or in the rights of the holders of, the Exchangeable Shares. (c) Infospace will ensure that the record date for any event referred to in section 2.7 (a) or 2.7 (b) above, or (if no record date is applicable for such event) the effective date for any such event, is not less than five Business Days after the date on which such event is declared or announced by Infospace (with contemporaneous notification thereof by Infospace to Infospace Canada). (d) The Board of Directors of Infospace Canada shall determine, in good faith and in its sole discretion acting reasonably, economic equivalence for the purposes of any event referred to in section 2.7(a) or 2.7(b) above and each such 8 determination shall be conclusive and binding on Infospace. In making each such determination, the following factors shall, without excluding other factors determined by the Board of Directors of Infospace Canada to be relevant, be considered by the Board of Directors of Infospace Canada: (i) in the case of any stock dividend or other distribution payable in Infospace Common Shares, the number of such shares issued in proportion to the number of Infospace Common Shares previously outstanding; (ii) in the case of the issuance or distribution of any rights, options or warrants to subscribe for or purchase Infospace Common Shares (or securities exchangeable for or convertible into or carrying rights to acquire Infospace Common Shares), the relationship between the exercise price of each such right, option or warrant and the current market value (as determined by the Board of Directors of Infospace Canada in the manner above contemplated) of an Infospace Common Share; (iii) in the case of the issuance or distribution of any other form of property (including without limitation any shares or securities of Infospace of any class other than Infospace Common Shares, any rights, options or warrants other than those referred to in section 2.7(d)(ii) above, any evidences of indebtedness of Infospace or any assets of Infospace), the relationship between the fair market value (as determined by the Board of Directors of Infospace Canada in the manner above contemplated) of such property to be issued or distributed with respect to each outstanding Infospace Common Share and the current market value (as determined by the Board of Directors of Infospace Canada in the manner above contemplated) of an Infospace Common Share; (iv) in the case of any subdivision, redivision or change of the then outstanding Infospace Common Shares into a greater number of Infospace Common Shares or the reduction, combination, consolidation or change of the then outstanding Infospace Common Shares into a lesser number of Infospace Common Shares or any amalgamation, merger, reorganization or other transaction affecting Infospace Common Shares, the effect thereof upon the then outstanding Infospace Common Shares; and (v) in all such cases, the general taxation consequences of the relevant event to holders of Exchangeable Shares to the extent that such consequences may differ from the taxation consequences to holders of Infospace Common Shares as a result of differences between taxation laws of Canada and the United States (except for any differing consequences arising as a result of differing marginal taxation rates and without regard to the individual circumstances of holders of Exchangeable Shares). 9 For purposes of the foregoing determinations, the current market value of any security listed and traded or quoted on a securities exchange shall be the weighted average of the daily trading prices of such security during a period of not less than 20 consecutive trading days ending not more than three trading days before the date of determination on the principal securities exchange on which such securities are listed and traded or quoted; provided, however, that if in the opinion of the Board of Directors of Infospace Canada the public distribution or trading activity of such securities during such period does not create a market which reflects the fair market value of such securities, then the current market value thereof shall be determined by the Board of Directors of Infospace Canada, in good faith and in its sole discretion, and provided further that any such determination by the Board of Directors of Infospace Canada shall be conclusive and binding on Infospace. (e) Infospace Canada agrees that, to the extent required, upon due notice from Infospace, Infospace Canada will use its best efforts to take or cause to be taken such steps as may be necessary for the purposes of ensuring that appropriate dividends are paid or other distributions are made by Infospace Canada, or subdivisions, redivisions or changes are made to the Exchangeable Shares, in order to implement the required economic equivalent with respect to the Infospace Common Shares and Exchangeable Shares as provided for in this section 2.7. 2.8 Tender Offers In the event that a tender offer, share exchange offer, issuer bid, take- over bid or similar transaction with respect to Infospace Common Shares (an "Offer") is proposed by Infospace or is proposed to Infospace or its shareholders and is recommended by the Board of Directors of Infospace, or is otherwise effected or to be effected with the consent or approval of the Board of Directors of Infospace, and the Exchangeable Shares are not redeemed by Infospace Canada or purchased by Infospace Nova Scotia, Infospace will use its reasonable efforts expeditiously and in good faith to take all such actions and do all such things as are necessary or desirable to enable and permit holders of Exchangeable Shares to participate in such Offer to the same extent and on an economically equivalent basis as the holders of Infospace Common Shares, without discrimination. Without limiting the generality of the foregoing, Infospace will use its reasonable efforts expeditiously and in good faith (and shall, in the case of a transaction by Infospace or where Infospace is a participant in the negotiation thereof) to ensure that holders of Exchangeable Shares may participate in all such Offers without being required to retract Exchangeable Shares as against Infospace Canada (or, if so required, to ensure that any such retraction, shall be effective only upon, and shall be conditional upon, the closing of the Offer and only to the extent necessary to tender or deposit to the Offer). Nothing herein shall affect the rights of Infospace Canada to redeem (or Infospace Nova Scotia to purchase pursuant to the Redemption Right) Exchangeable Shares, as applicable, in the event of an Infospace Control Transaction. 10 2.9 Ownership of Outstanding Shares Without the prior approval of Infospace Canada and the prior approval of the holders of the Exchangeable Shares given in accordance with section [11] of the Share Provisions, Infospace covenants and agrees in favour of Infospace Canada and the Trustee on behalf of holders of Exchangeable Shares that, as long as any outstanding Exchangeable Shares are owned by any person or entity other than Infospace or any of its Affiliates, Infospace will be and remain the direct or indirect beneficial owner of all issued and outstanding voting shares in the capital of Infospace Canada and Infospace Nova Scotia. 2.10 Infospace and Affiliates Not to Vote Exchangeable Shares Infospace covenants and agrees that it will appoint and cause to be appointed proxyholders with respect to all Exchangeable Shares held by it and its Affiliates for the sole purpose of attending each meeting of holders of Exchangeable Shares in order to be counted as part of the quorum for each such meeting. Infospace further covenants and agrees that it will not, and will cause its Affiliates not to, exercise any voting rights which may be exercisable by holders of Exchangeable Shares from time to time pursuant to the Share Provisions or pursuant to the provisions of the Business Corporations Act (Ontario) (or any successor or other corporate statute by which Infospace Canada may in the future be governed) with respect to any Exchangeable Shares held by it or by its Affiliates in respect of any matter considered at any meeting of holders of Exchangeable Shares. 2.11 Rule 10b-18 Purchases For certainty, nothing contained in this Agreement, including without limitation the obligations of Infospace contained in section 2.8 hereof, shall limit the ability of Infospace or Infospace Canada to make a "Rule 10b-18 Purchase" of Infospace Common Shares pursuant to Rule 10b-18 of the U.S. Securities Exchange Act of 1934, as amended, or any successor provisions thereof. 2.12 Special Voting Shares During the term of this Agreement, Infospace will not issue any additional Special Voting Shares and will not amend, alter, change or repeal the terms of the Special Voting Shares without the prior approval of the holders of Exchangeable Shares in accordance with section [11] of the Share Provisions. 11 ARTICLE 3 INFOSPACE SUCCESSORS 3.1 Certain Requirements in Respect of Combination, etc. Infospace shall not consummate any transaction (whether by way of reconstruction, reorganization, consolidation, merger, transfer, sale, lease or otherwise) whereby all or substantially all of its undertaking, property and assets would become the property of any other person or, in the case of a merger, of the continuing corporation resulting therefrom unless, but may do so if: (a) such other person or continuing corporation (the "Infospace Successor") by operation of law, becomes, without more, bound by the terms and provisions of this Agreement or, if not so bound, executes, prior to or contemporaneously with the consummation of such transaction, an agreement supplemental hereto and such other instruments (if any) as are reasonably necessary or advisable to evidence the assumption by the Infospace Successor of liability for all moneys payable and property deliverable hereunder and the covenant of such Infospace Successor to pay and deliver or cause to be delivered the same and its agreement to observe and perform all the covenants and obligations of Infospace under this Agreement; and (b) such transaction shall be upon such terms and conditions as substantially to preserve and not to impair in any material respect any of the rights, duties, powers and authorities of the other parties hereunder. 3.2 Vesting of Powers in Successor Whenever the conditions of section 3.1 have been duly observed and performed, the parties, if required by section 3.1, shall execute and deliver a supplemental agreement hereto and thereupon Infospace Successor shall possess and from time to time may exercise each and every right and power of Infospace under this Agreement in the name of Infospace or otherwise and any act or proceeding by any provision of this Agreement required to be done or performed by the Board of Directors of Infospace or any officers of Infospace may be done and performed with like force and effect by the directors or officers of such Infospace Successor. 3.3 Wholly-Owned Subsidiaries Nothing herein shall be construed as preventing the amalgamation or merger of any wholly-owned direct or indirect subsidiary of Infospace, except for Infospace Canada, with or into Infospace or the winding-up, liquidation or dissolution of any wholly-owned subsidiary of Infospace, except for Infospace Canada, provided that all of the assets of such subsidiary are 12 transferred to Infospace or another wholly-owned direct or indirect subsidiary of Infospace and any such transactions are expressly permitted by this Article 3. ARTICLE 4 GENERAL 4.1 Term This Agreement shall come into force and be effective as of the date hereof and shall terminate and be of no further force and effect at such time as no Exchangeable Shares (or securities or rights convertible into or exchangeable for or carrying rights to acquire Exchangeable Shares) are held by any person or entity other than Infospace and any of its Affiliates. 4.2 Changes in Capital of Infospace and Infospace Canada At all times after the occurrence of any event contemplated pursuant to sections 2.7 and 2.8 hereof or otherwise, as a result of which either Infospace Common Shares or the Exchangeable Shares or both are in any way changed, this agreement shall forthwith be amended and modified as necessary in order that it shall apply with full force and effect, with the appropriate changes, to all new securities into which Infospace Common Shares or the Exchangeable Shares or both are so changed and the parties hereto shall execute and deliver an agreement in writing giving effect to and evidencing such necessary amendments and modifications. 4.3 Severability If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby and this Agreement shall be carried out as nearly as possible in accordance with its original terms and conditions. 4.4 Amendments, Modifications This Agreement may not be amended or modified except by an agreement in writing executed by Infospace Canada, Infospace Nova Scotia, the Trustee and Infospace. 4.5 Ministerial Amendments Notwithstanding the provisions of section 4.4, the parties to this Agreement may in writing at any time and from time to time, without the approval of the Trustee or the holders of the Exchangeable Shares, amend or modify this Agreement for the purposes of: 13 (a) adding to the covenants of Infospace Canada, Infospace Nova Scotia or Infospace provided that the Board of Directors of each of Infospace Canada, Infospace Nova Scotia and Infospace shall be of the good faith opinion that such additions will not be prejudicial to the rights or interests of the holders of the Exchangeable Shares; (b) making such amendments or modifications not inconsistent with this Agreement as may be necessary or desirable with respect to matters or questions which, in the good faith opinion of the Board of Directors of each of Infospace Canada, Infospace Nova Scotia and Infospace, it may be expedient to make, provided that each such Board of Directors shall be of the good faith opinion that such amendments or modifications will not be prejudicial to the rights or interests of the holders of the Exchangeable Shares; or (c) making such changes or corrections which, on the advice of counsel to Infospace Canada, Infospace Nova Scotia and Infospace, are required for the purpose of curing or correcting any ambiguity or defect or inconsistent provision or clerical omission or mistake or manifest error, provided that the Boards of Directors of each of Infospace Canada, Infospace Nova Scotia and Infospace shall be of the good faith opinion that such changes or corrections will not be prejudicial to the rights or interests of the holders of the Exchangeable Shares. 4.6 Meeting to Consider Amendments Infospace Canada, at the request of Infospace, shall call a meeting or meetings of the holders of the Exchangeable Shares for the purpose of considering any proposed amendment or modification requiring approval pursuant to section 4.4 hereof. Any such meeting or meetings shall be called and held in accordance with the bylaws of Infospace Canada, the Share Provisions and all applicable laws. 4.7 Amendments Only in Writing No amendment to or modification or waiver of any of the provisions of this Agreement otherwise permitted hereunder shall be effective unless made in writing and signed by all of the parties hereto. 4.8 Enurement This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors and assigns. 4.9 Notices to Parties All notices and other communications between the parties to this Agreement shall be in writing and shall be deemed to have been given if delivered personally or by confirmed telecopy 14 to the parties at the following addresses (or at such other address for any such party as shall be specified in like notice): (a) if to the Trustee: Montreal Trust Company of Canada 151 Front Street West Suite 800 Toronto, Ontario M5J 2N1 Attention: Manager, Corporate Trust Telecopier No.: 416-981-9777 (b) if to Infospace: Attention: General Counsel Telecopier No.: (c) if to Infospace Canada or Infospace Nova Scotia: Attention: General Counsel Telecopier No.: Any notice or other communication given personally shall be deemed to have been given and received upon delivery thereof and if given by telecopy shall be deemed to have been given and received on the date of confirmed receipt thereof unless such day is not a Business Day in which case it shall be deemed to have been given and received upon the immediately following Business Day. 15 4.10 Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. 4.11 Jurisdiction This Agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. 4.12 Attornment Each of Infospace, Infospace Nova Scotia and the Trustee agrees that any action or proceeding arising out of or relating to this Agreement may be instituted in the courts of Ontario, waives any objection which it may have now or hereafter to the venue of any such action or proceeding, irrevocably submits to the jurisdiction of the said courts in any such action or proceeding, agrees to be bound by any judgment of the said courts and not to seek, and hereby waives, any review of the merits of any such judgment by the courts of any other jurisdiction and hereby appoints Infospace Canada at its registered office in the Province of Ontario as attorney for service of process. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. INFOSPACE.COM, INC. By:_______________________________ Name: Title: INFOSPACE.COM NOVA SCOTIA COMPANY By:_______________________________ Name: Title: 16 INFOSPACE.COM CANADA HOLDINGS INC. By:_______________________________ Name: Title: MONTREAL TRUST COMPANY OF CANADA By:_______________________________ Name: Title: By:_______________________________ Name: Title -----END PRIVACY-ENHANCED MESSAGE-----