AGREEMENT entered into as of the 30th day of September 1999, by and
between XxxXxxxXxx.xxx, Inc., a Delaware corporation, formerly known as InXsys
Broadcast Networks, Inc. ("BuySellBid") and XxxxXxxxxxx.xxx, Incorporated, a
Nevada corporation ("HomeSeekers").
W I T N E S S E T H:
WHEREAS, HomeSeekers is an Internet-related company, engaged in
providing products and services to the real estate marketplace; and
WHEREAS, BuySellBid provides products and services related to online
classified advertising; and
WHEREAS, HomeSeekers desires to purchase Internet classified
advertising from BuySellBid, and BuySellBid desires to provide classified
advertising to HomeSeekers, all upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Appointment of Exclusive Provider. For a period of three years from the
Effective Date of this Agreement (as hereinafter defined), BuySellBid hereby
designates HomeSeekers as the exclusive provider to BuySellBid of residential
real estate, apartments for rent, resort, foreclosure and commercial listings
and information (the "Real Estate Listings"). The exclusive designation set
forth in the preceding sentence shall not apply to "For Sale By Owner" listings
or to advertisements. Notwithstanding the foregoing, BuySellBid shall not be
precluded from posting listings for apartments provided by parties other than
HomeSeekers, until such time as HomeSeekers includes apartments in its Real
Estate Listings.
2. Real Estate Listings.
1. For so long as HomeSeekers serves as the exclusive provider of Real
Estate Listings pursuant to this Agreement, BuySellBid hereby agrees to cause
HomeSeekers' Real Estate Listings to be available for viewing on Internet Web
and portal sites owned, controlled and/or maintained by BuySellBid (the
"BuySellBid Sites"), as well as Web and portal sites covering the approximately
470 radio stations owned by Clear Channel Communications Inc. (the "Clear
Channel Sites").
2. BuySellBid hereby represents and warrants to HomeSeekers that (i)
BuySellBid is a party to a written agreement (the "Clear Channel Agreement")
with Clear Channel Communications Inc. ("Clear Channel"), pursuant to which
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BuySellBid has acquired the legally enforceable exclusive right to provide
classified advertisements on all of Clear Channel's Web sites, (ii) BuySellBid
has performed all of its obligations to Clear Channel under the Clear Channel
Agreement, (iii) Clear Channel has performed all of its obligations to
BuySellBid under the Clear Channel Agreement and (iv) the exclusive rights of
BuySellBid under the Clear Channel Agreement terminate on September 23, 2002. A
copy of the Clear Channel Agreement has been provided to HomeSeekers.
3. BuySellBid hereby agrees to use its best efforts to promote
HomeSeekers' Real Estate Listings on all of the BuySellBid Sites and the Clear
Channel Sites (collectively, the "Web Sites").
4. For so long as HomeSeekers serves as the exclusive provider of Real
Estate Listings pursuant to this Agreement, BuySellBid hereby agrees to comply
with the terms and conditions of the Clear Channel Agreement and to take no
action or fail to take action that could result in a violation of the Clear
Channel Agreement.
5. HomeSeekers' Real Estate Listings are and shall remain the sole and
exclusive property of HomeSeekers and BuySellBid may use HomeSeekers' Real
Estate Listings solely for the purposes of this Agreement.
6. In connection with the availability of HomeSeekers' Real Estate
Listings through the Web Sites:
1. HomeSeekers shall program and/or prepare and present to
BuySellBid, a real estate site in a format that complements the
current "ClassiFIND" look and feel used by BuySellBid on the Web
Sites. HomeSeekers' Real Estate Listings shall be presented on
this site only;
2. HomeSeekers shall control all broker/agent "real estate
finder" functions on the Web Sites; and
3. BuySellBid agrees to establish "real estate agent finder
position" on all Web Sites.
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3. Compensation to BuySellBid.
1. For its services hereunder, HomeSeekers shall pay to BuySellBid,
within three business days following the Effective Date of this Agreement, the
sum of $4,091,380.00, as follows:
1. the sum of $1,000,000, by wire transfer or other form of
payment mutually satisfactory to the parties; and
2. the sum of $3,091,380 by delivery to BuySellBid of 257,615
shares of the common stock of HomeSeekers, $.001 par value per
share ("HMSK Common Stock"), registered in the name of BuySellBid
(the "HMSK Shares"). The number of HMSK Shares was determined by
(A) dividing 3,091,380, by (B) $12.
2. On or prior to January 31, 2000, HomeSeekers agrees to file a
registration statement on Form S-3 under the Act, or, in the event Form S-3 is
not available to HomeSeekers, then on another applicable form, for the purpose
of registering the HomeSeekers Shares under the Act, for resale by BuySellBid.
HomeSeekers agrees to use its reasonable best efforts to cause such registration
statement to become effective as soon thereafter as is practicable. The costs of
preparing and filing such registration statement shall be borne by HomeSeekers.
Resale of the HMSK Shares shall be subject to BuySellBid's covenant set forth in
Section 3(5), below.
3. BuySellBid shall furnish such information as may reasonably be
requested by HomeSeekers in order to enable it to register the HMSK Shares as
contemplated by this Agreement. BuySellBid shall comply with all applicable
securities laws in connection with any resale of the HMSK Shares by it.
4. If the value of the shares delivered under Section 3 (1) (2) above
on the date they are first registered and the registration becomes effective is
less than $3,091,380, HomeSeekers will deliver to BuySellBid the amount of
additional shares necessary so that the total value of shares delivered under
Section 3(1)(2) above and this section is $3,091,380. For purposes of valuing
the shares, the applicable number of shares will be multiplied by the average
closing price of the HMSK Common Stock on the NASDAQ on five trading days
preceding the date the registration statement becomes effective.
5. Following registration of the HMSK Shares being issued to BuySellBid
pursuant to this Agreement, BuySellBid hereby covenants and agrees that it will
limit the number of HMSK Shares it sells during any trading day to no more than
25% of the trading volume of shares of HMSK Common Stock for the preceding
trading day. The daily number of shares that may be sold by BuySellBid includes
all other shares of HMSK Common Stock that are publicly sold by BuySellBid on
such day.
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6. BuySellBid understands that HMSK Common Stock is a class of equity
securities registered under Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). BuySellBid hereby covenants and agrees that it
will file with the SEC and other applicable regulatory authorities, all reports
and other information required to be filed by it in connection with its
acquisition and/or disposition of the HMSK Shares.
4. Branded Advertising. For a period of 18 months from the Effective Date
of this Agreement:
1. The parties agree that HomeSeekers' Real Estate Listings for
apartments shall be promoted, with HomeSeekers' apartment branding, directly on
the Clear Channel Sites through advertising on one-third of BuySellBid's 120 X
90 pixel rotating ad banner, with HomeSeekers' apartment Real Estate Listings to
appear not less than 50% of the time on the BuySellBid banner space, with the
BuySellBid banner to be seen on at least 70% of all Web pages on the Clear
Channel Sites. It is understood by the parties that HomeSeekers' Real Estate
Listings does not currently include apartments. Until such time as HomeSeekers
does include apartments in its Real Estate Listings, HomeSeekers will promote
its real estate broker/agent finders directly on the Web pages of the Clear
Channel Sites, using the method described above for apartment listings.
2. HomeSeekers and BuySellBid shall cooperate to create the advertising
described in the preceding paragraph. The parties acknowledge and agree that
banner appearance and content is subject to acceptance by Clear Channel and its
stations, which acceptance will not be unreasonably withheld.
5. Representations and Warranties of BuySellBid Concerning the HMSK Shares.
BuySellBid hereby represents and warrants to HomeSeekers as follows:
1. BuySellBid understands that the HMSK Shares have not been registered
under the Securities Act of 1933, as amended (the "Act") or the securities laws
of any state, in reliance upon exemptions from the registration requirements of
the Act and such state laws. The issuance of the HMSK Shares has not been passed
upon or the merits thereof endorsed or approved by any Federal or state
regulatory authority.
2. BuySellBid is acquiring the HMSK Shares for its own account, for
investment purposes only, and not with a view towards the distribution or resale
of the HMSK Shares except in compliance with applicable Federal and state
securities laws. BuySellBid does not intend to dispose of all or any part of the
HMSK Shares, except in compliance with the provisions of the Act and applicable
state securities laws and understands that the HMSK Shares are being issued
pursuant to specific exemptions under the provisions of the Act, which
exemptions depend, among other things, upon compliance with the provisions of
the Act.
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3. BuySellBid has such knowledge and experience in financial,
investment and business matters that it is capable of evaluating the merits and
risks of its acquisition of the HMSK Shares.
4. BuySellBid (i) has adequate means of providing for its current
financial needs and known contingencies, and has no need for liquidity of its
investment in the HMSK Shares; and (ii) can afford (A) to hold the HMSK Shares
for an indefinite period of time, as may be required until the HMSK Shares may
be sold in compliance with applicable law, and (B) to sustain a complete loss of
the entire amount of its investment in the HMSK Shares.
5. BuySellBid has been afforded the opportunity to ask questions of,
and receive answers from the officers and/or directors of HomeSeekers concerning
the terms and conditions of this transaction and to obtain any additional
information, to the extent that HomeSeekers possesses such information or can
acquire it without unreasonable effort or expense, necessary to verify the
accuracy of the information furnished; and has availed itself of such
opportunity to the extent it considers it appropriate in order to permit it to
evaluate the merits and risks of an investment in the HMSK Shares. It is
understood that all documents, records and books pertaining to BuySellBid's
investment in the HMSK Shares have been made available for inspection, and that
the books and records of HomeSeekers will be available upon reasonable notice
for inspection by representatives of BuySellBid during reasonable business hours
at its principal place of business.
6. BuySellBid hereby agrees that the following or similar legend will
appear on each certificate evidencing the HMSK Shares:
"These securities have not been registered under the Securities Act of
1933, as amended, or under any state securities laws and may not be
sold or otherwise transferred or disposed of except pursuant to an
effective registration statement under the Act and any applicable state
securities laws, or an opinion of counsel satisfactory to counsel to
the issuer that such registration is not required."
6. Advertising Space and Revenue Sharing. For a period of 18 months from the
Effective Date of this Agreement:
1. The parties hereby agree that HomeSeekers will provide Real Estate
Listings to BuySellBid through category sites for BuySellBid and its strategic
partners. On such sites, BuySellBid will have the right to sell 70% of the
banner advertising space and HomeSeekers will have the right to sell 30% of such
banner advertising space. All revenues generated from such advertising shall be
distributed 70% to BuySellBid and 30% to HomeSeekers. To the extent that
advertising space is not sold, each of the parties shall have the right to
include its own banner advertising, in the same relative proportions.
2. HomeSeekers hereby agrees to create a Web site for BuySellBid, which
will contain a vertical navigation bar area. BuySellBid and its media partners
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will have the right to sell 70% of the advertising and HomeSeekers 30% of the
advertising, for viewing on such navigation bar. Any revenues derived from any
such advertising and/or links on these sites, shall be distributed 70% to
BuySellBid and 30% to HomeSeekers.
3. The parties agree and acknowledge that for purposes of this Section
6, banner advertising revenues shall not include banner advertising revenues
derived from sales by Clear Channel or other radio stations.
4. HMSK agrees that it will not promote its Internet site on any radio
station that has contracted with BuySellBid to provide such radio station with
classified advertisements for real estate, including apartments for rent,
listings.
7. Miscellaneous.
1. Survival of Representations and Warranties. All of the
representations and warranties of the parties contained in this Agreement shall
survive the Closing for a period of one year.
2. No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties and their respective
successors and permitted assigns.
3. Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the parties and supersedes
any prior understandings, agreements, or representations by or between the
parties, written or oral, to the extent they related in any way to the subject
matter hereof.
4. Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors
and permitted assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other party.
5. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
6. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
7. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be addressed to the intended recipient as
set forth below:
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If to BuySellBid: XxxXxxxXxx.xxx, Inc.
000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxxx and Xxxx Xxxx
If to HomeSeekers: XxxxXxxxxxx.xxx, Incorporated
0000 X. XxXxxxxx Xxxx., Xxxxx X-00
Xxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxx and Xxx Xxxxxxx
Any party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using United
States Mail, personal delivery, expedited courier, messenger service or
facsimile, and such notice, request, demand, claim, or other communication shall
be deemed to have been duly given (i) three days following delivery to an
authorized United States Postal Office receptacle, (ii) upon facsimile
transmission, provided that electronic confirmation of receipt is retained by
the transmitting party, or (iii) upon receipt, if by personal delivery, courier
or messenger service. Any party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other party notice in the manner herein set forth.
8. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Nevada without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Nevada or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Nevada. The parties
further: (i) agree that any legal suit, action or proceeding arising out of or
relating to this Agreement shall be instituted exclusively in any court of
competent jurisdiction within the County of Washoe, State of Nevada or in the
United States District Court for the District of Nevada, Northern Division, (ii)
waive any objection that they may have now or hereafter to the venue of any such
suit, action or proceeding, and (iii) irrevocably consent to the in personam
jurisdiction of any court of competent jurisdiction within the County of Washoe,
State of Nevada, and the United States District Court for the District of
Nevada, Northern District in any such suit, action or proceeding. The parties
each further agree to accept and acknowledge service of any and all process
which may be served in any such suit, action or proceeding in a court of
competent jurisdiction within the County of Washoe, State of Nevada or in the
United States District Court for the District of Nevada, Northern Division, and
that service of process upon the parties mailed by certified mail to their
respective addresses shall be deemed in every respect effective service of
process upon the parties, in any action or proceeding.
9. Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
parties hereto. No waiver by any party of any default, misrepresentation, or
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breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
10. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
11. Expenses. Each of the parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
12. Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
13. Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XxxXxxxXxx.xxx, Inc.
By:_____________________________
Name: Xxx Xxxxxxx
Its: Chief Executive Officer
XxxxXxxxxxx.xxx, Incorporated
By:_____________________________
Name: Xxxx Xxxxxxx
Its: Chief Executive Officer
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