EXHIBIT 10.29
AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of August 21, 1998 by and among
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RealSelect, Inc., a Delaware corporation ("RealSelect"), the REALTORS(R)
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Information Network, Inc., an Illinois corporation ("RIN"), the National
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Association of REALTORS(R), an Illinois not for profit corporation (the "NAR"),
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NetSelect, Inc., a Delaware corporation ("NetSelect"), and NetSelect, L.L.C., a
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Delaware limited liability company ("NetSelect L.L.C.").
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BACKGROUND
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A. Under the terms of that certain Operating Agreement dated as of November 26,
1996 by and between RIN and RealSelect, as amended by that certain First
Amendment of Operating Agreement dated as of December 27, 1996 (the "Operating
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Agreement") RealSelect is obligated to make certain payments to RIN of
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$1,000,000 (the "Active Real Property Ads Amount") pursuant to Section 6.3(a) of
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the Operating Agreement, payments of $1,000,000 (the "Free Operating Cash Flow
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Amount") pursuant to Section 6.3(b) of the Operating Agreement; and under the
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terms of that certain agreement between NAR and/or RIN and RealSelect dated
April 29, 1998, RealSelect has agreed to fund certain portions of NAR
advertising activities, which obligation the parties agree is $1,200,000 (the
"Advertising Amount") (such amounts referred to collectively as the
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"Obligations").
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B. Pursuant to the terms of that certain RealSelect, Inc. Stockholders
Agreement dated as of November 26, 1998 by and among RealSelect, NetSelect
L.L.C. and RIN (the "Stockholders Agreement"), NAR (as successor in interest to
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the rights of RIN under the Stockholders Agreement) has certain rights (the "NAR
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Right") to require, upon the announcement by NetSelect of a Qualified Public
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Offering of NetSelect common stock (as defined in Section 4.2 of the
Stockholders Agreement), that NetSelect issue shares of NetSelect Convertible
Preferred Stock or NetSelect Class A Common Stock, as the case may be, in
exchange for shares of RealSelect Common Stock held by NAR.
C. The parties hereto desire to resolve the amount, timing and manner of
payment of the Obligations, in the manner set forth in this Agreement.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing recitals and mutual promises
set forth herein, the receipt and sufficiency of which are hereby acknowledged,
the parties do hereby agree as follows:
1. Certain Agreements Related to the Obligations. In connection with payment
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of the Obligations, the parties hereby agree as follows:
(a) At the first closing of the sale and issuance by NetSelect of
shares of its Convertible Series F Preferred Stock ("Series F Preferred") and
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shares of its Class A Common Stock ("NetSelect Common Stock") pursuant to that
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certain Stock Purchase Agreement dated as of August 21, 1998 by and among
NetSelect and certain Purchasers (as defined therein), $1,000,000 of the
Advertising Amount shall be deemed fully paid and such $1,000,000 of such
Obligation shall be demmed satisfied in exchange for the issuance by NetSelect
to NAR of a total of 26,504 shares of Series F Preferred (as a purchase price of
$24.00 per share) and 57,671 shares of NetSelect Common Stock (at a purchase
price of $6.31 per share).
(b) The remaining $200,000 of the Advertising Amount and $800,000 of
the Active Real Property Ads Amount shall be deemed fully paid and such amounts
of such Obligations shall be deemed satisfied, in consideration of the issuance
to (i) NAR by RealSelect of that number of shares of RealSelect Common Stock as
is equal to 11,905 shares of NetSelect Common Stock, calculated according to the
formula set forth in resolutions of the Board of Directors of NetSelect and
RealSelect in connection with the approval of previous issuances by RealSelect
to NetSelect, L.L.C. of shares of RealSelect Common Stock following issuance of
shares by NetSelect and the transfer of proceeds from such sales to NetSelect,
L.L.C. and from NetSelect, L.L.C. to RealSelect, and (ii) RIN by RealSelect of
that number of shares of RealSelect Common Stock as is equal to 47,619 shares of
NetSelect Common Stock, calculated according to the formula set forth in
resolutions of the Board of Directors of NetSelect and RealSelect in connection
with the approval of previous issuances by RealSelect to NetSelect, L.L.C. of
shares of RealSelect Common Stock following issuance of shares by NetSelect and
the transfer of proceeds from such sales to NetSelect, L.L.C. and from
NetSelect, L.L.C. to RealSelect; with such shares of RealSelect Common Stock
(the "RealSelect") to be issued upon the earliest of: (i) the closing of the
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issuance of NetSelect equity securities pursuant to the Brokers' Gold Program
approved by the NetSelect Board of Directors, (ii) the closing of a merger of
RealSelect and NetSelect, and (iii) the closing of a NetSelect Qualified Public
Offering (as defined in the Stockholders Agreement). If a NetSelect Qualified
Public Offering (as defined in the Stockholders Agreement) occurs before the
consummation of a merger between NetSelect and RealSelect, then the NAR Right
shall not apply to such RealSelect Shares and the RealSelect Shares shall be
excluded from definition of "Shares" under the Stockholders Agreement for
purposes of Section 3.5 thereof; and, at the option of NAR and RIN, RealSelect
shall repurchase the RealSelect Shares in exchange for delivery of RealSelect
promissory notes in an aggregate principal amount equal to $1,000,000 bearing
interest at the then applicable federal rate, which notes shall be payable upon
demand of the holder thereof and may be prepaid without penalty at any time by
RealSelect.
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(c) The remaining $200,000 of the Active Real Property Ads Amount and
all of the Free Operating Cash Flow Amount shall be paid to RIN by RealSelect no
later than April 1, 1999.
2. Investment Representations. In connection with the issuance of the above-
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referenced securities (sometimes referred to collectively as the "Securities"),
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NAR and RIN, as the case may be, agrees to execute and deliver to NetSelect and
RealSelect (as the case may be) a customary investment representation letter
relating to issuance of the Securities. RealSelect and NetSelect consent to the
transfer by RIN to NAR of the Securities, provided that RIN and NAR execute
customary transfer instruments and investment representation letters in form
reasonably satisfactory to RealSelect and NetSelect.
3. Representations and Warranties of Each Party. Each party, severally and not
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jointly, represents and warrants, solely with respect to itself, that (i) such
party has all requisite corporate or company power and authority (as the case
may be) to enter into this Agreement and to perform its obligations hereunder,
and (ii) that this Agreement constitutes the valid and binding obligations of
such party, enforceable against such party in accordance with its terms.
NetSelect and RealSelect represent and warrant that the Securities have been
duly authorized by all necessary corporate action on the part of NetSelect and
RealSelect and, upon payment therefor as described in this Agreement, the
Securities shall be, and the shares of NetSelect Common Stock issuable upon
conversion of the Series F Preferred, upon such conversion and issuance shall
be, validly issued and outstanding, fully paid and nonassessable.
4. Miscellaneous.
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4.1 Notices. Any and all notices required or permitted to be given under this
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Agreement shall be sent or delivered by hand, facsimile, prepaid certified or
registered mail, or by private nationally recognized express courier service
(such as Federal Express of D.H.L.) to the parties at the addresses set forth
below, (or to such other addresses as the parties shall in writing notify each
other pursuant to this Section):
If to NetSelect, [Entity Name]
NetSelect, L.L.C. or c/o NetSelect, Inc.
RealSelect: 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention:_________________________
Telephone:_________________________
Facsimile:_________________________
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If to RIN or NAR [Entity Name]
c/o National Association of REALTORS(R)
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Vice President and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices delivered by hand, or sent by facsimile, shall be deemed given the
day so delivered or sent (or, in the case of facsimiles sent after normal
business hours, on the next business day), provided that in the case of
facsimiles, the sender receives telephonic or electronic confirmation that the
facsimile was received by the recipient. Notices mailed or sent courier as
provided herein shall be deemed given on the third (3rd) business day following
the date so mailed or on the date of actual receipt, whichever is earlier.
4.2 Governing Law. This Agreement shall be governed in all respects
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by the laws of the State of California as applied to contracts made and to be
fully performed entirely within that state between residents of that state.
4.3 Entire Agreement; Amendment. This Agreement constitutes the full and
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entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. This Agreement or any term hereof may be amended,
waived, discharged or terminated by a written instrument signed by the parties
hereto.
4.4 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall constitute an original but all of which taken
together shall constitute a single instrument.
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date first written above.
NETSELECT, INC.
By: /s/ Xxxxxx Xxxxx
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Name:
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Title:
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NETSELECT, L.L.C.
By: /s/ Xxxxxx Xxxxx
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Name:
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Title:
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REALSELECT, INC. REALTORS(R) INFORMATION NETWORK
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Name: Xxxxxx X. Xxxxxxxx
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Title: Title: President & CEO
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NATIONAL ASSOCIATION OF REALTORS(R)
By: /s/ Xxxxxxxx X. XxXxxxxxx
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Name: Xxxxxxxx X. XxXxxxxxx
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Title: Executive Vice President
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