Exhibit 4.04.2
AMENDMENT TO XXXXXXX.XXX
DATA CONTENT PROVIDER AGREEMENT ADDENDUM
This Amendment to the Xxxxxxx.xxx Data Content Provider Agreement Addendum
(this "AMENDMENT") is made and entered into as of _____, 1999 ("AMENDMENT
EFFECTIVE DATE") by and among RealSelect, Inc., a Delaware corporation
("OPERATOR"), NetSelect, Inc., a Delaware corporation and the parent company of
Operator that intends to change its name to XxxxXxxxx.xxx ("XXXXXXXXX.XXX") and
__________________ ("DATA CONTENT PROVIDER").
RECITALS
A. Operator and Data Content Provider have entered into a Data Content
Provider Agreement (the "AGREEMENT") and a Data Content Provider Agreement
Addendum (the "ADDENDUM"), pursuant to which Data Content Provider provides
certain data content to Operator.
B. Operator and Data Content Provider wish to amend the Addendum in the
manner set forth below in order to amend and clarify the terms of the Addendum.
NOW, THEREFORE, Operator and Data Content Provider hereby agree as follows:
1. Definitions.
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(a) "Common Stock" shall mean shares of Common Stock of XxxxXxxxx.xxx.
(b) "IPO" shall mean the initial registered public offering of Common
Stock of XxxxXxxxx.xxx.
(c) "Transfer" shall mean (1) any offer, pledge, sale, contract to
sell, sale of any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) entering into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (i) transactions
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the IPO or (ii) a bona fide gift or gifts,
provided that the donee or donees thereof agree in writing to be bound by the
terms of this Agreement.
(d) Capitalized terms used in this Amendment that are not otherwise
defined herein will have the same meaning ascribed to them as set forth in the
Addendum.
2. Warrant Vesting Program.
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(a) XxxxXxxxx.xxx shall establish a pool of 578,290 shares (adjustable
proportionately for splits, combinations, dividends and the like) (the "POOL")
of Common Stock. Subject to this terms of this Section 2, XxxxXxxxx.xxx shall
issue warrants (the "WARRANTS") to Data Content Provider to purchase shares of
Common Stock.
(b) Data Content Provider is allocated (the "ALLOCATION") that portion
of the Pool equal to the ratio of (1) the number of MLS home listings provided
to XXXXXXX.xxx by Data Content Provider to (2) 70 percent of the number of all
MLS home listings nationally, each determined as of September 30, 1998.
(c) Data Content Provider will receive at the IPO Closing a Warrant to
purchase the one-half of the Allocation at a per share exercise price equal to
the price to the public per share of Common Stock in
the IPO (the "FIRST WARRANT"). The First Warrant will be exercisable at any time
after the closing of the IPO until the third anniversary thereof.
(d) In the event that Data Content Provider elects Option #1 in
Section 7 below, then Data Content Provider will receive at the closing date of
the IPO (the "IPO CLOSING") a Warrant to purchase the remaining one-half of the
Allocation at a per share exercise price equal to the price to the public per
share of Common Stock in the IPO (the "OPTION #1 WARRANT"). The Option #1
Warrant will be exercisable at any time after the closing of the IPO until the
third anniversary thereof.
(e) In the event that Data Content Provider elects Option #2 in
Section 7 below, then Data Content Provider will receive a warrant to purchase
the remaining one-half of the Allocation and will be exercisable at any time
after the date of issuance until the third anniversary of such issuance date
(the "OPTION #2 WARRANT"). The Option #2 Warrant shall be issued and dated as of
the date that a duly executed copy of this Agreement has been received by
Operator. The exercise price of the Option #2 Warrant will be the average
closing price of XxxxXxxxx.xxx's Common Stock during the ten (10) most recent
trading days prior to the date that this Amendment was received by Operator (or
the average of all trading days if XxxxXxxxx.xxx's Common Stock has been traded
for less than ten (10) days).
(f) If the aggregate number of residential single family home listings
provided to XXXXXXX.xxx by all Data Content Providers is greater than Seventy
Percent (70.0%) of all residential single family home listings, each Data
Content Provider's Allocation shall be reduced pro rata, based on the number of
residential single family home listings provided by each Data Content Provider,
so that shares of Common Stock issuable upon exercise of all Warrants do not
exceed the pool.
3. Exercisability and Transfer Restrictions of Warrants.
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(a) The First Warrant and the Option #1 Warrant each shall have a
"net", or cashless, exercise provision. Data Content Provider agrees that any
shares of Common Stock of XxxxXxxxx.xxx that may be purchased upon exercise of
the First Warrant or the Option #1 Warrant shall be Transferred only in
accordance with the following restrictions: (i) No such shares may be
Transferred within one hundred and eighty (180) days of the IPO; and (ii) the
aggregate number of such shares Transferred thereafter shall not exceed (A) the
number of ninety (90) day periods that have elapsed since the restriction set
forth in clause (i) above has lapsed multiplied by (B) Ten Percent (10.0%).
(b) The Option #2 Warrant shall have a "net", or cashless, exercise
provision. Data Content Provider agrees that any shares of Common Stock of
XxxxXxxxx.xxx that may be purchased upon exercise of the Option #2 Warrant shall
be Transferred only in accordance with the following restrictions: (i) No such
shares may be Transferred within one hundred and eighty (180) days of the
issuance date of the Option #2 Warrant; and (ii) the aggregate number of such
shares Transferred thereafter shall not exceed (A) the number of ninety (90) day
periods that have elapsed since the restriction set forth in clause (i) above
has lapsed multiplied by (B) Ten Percent (10.0%).
4. Additional Term. In the event that Data Content Provider elects Option
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#1 or Option #2, the term of the Addendum shall be extended for an additional
twenty-four (24) month period. In addition, in the event that the Agreement
expires before such additional twenty-four (24) month period ends, the length of
the Agreement shall be extended until the Addendum, as amended hereby, expires.
5. Injunctive Relief. Each of the parties acknowledges that a breach of
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the "Preferred Partner" provisions in the Addendum by Data Content Provider
could cause irreparable harm and significant injury to Operator and
XxxxXxxxx.xxx that would be difficult to ascertain and may not be compensable by
damages alone. Accordingly, the parties agree that, in addition to any and all
legal remedies, such claims may be remedied by specific performance, injunction
or other appropriate equitable relief.
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6. Other Terms. In all other respects the Agreement and the Addendum
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remain unmodified and in full force and effect. In the event of any
inconsistency between the terms and conditions of this Amendment and the terms
and conditions of the Agreement and the Addendum, the terms and conditions of
this Amendment shall govern and control. This Amendment may be executed in
counterpart signature pages.
7. Election of Option by Data Content Provider. Data Content Provider,
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after reviewing the effect of each option, elects the following:
Option #1: Option #2: Decline Option #1 and Option #2:
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(Data Content Provider to check one)
IN ORDER TO BE A VALID ELECTION, THIS AMENDMENT MUST BE (I) SIGNED BY DATA
CONTENT PROVIDER, XXXXXXXXX.XXX AND OPERATOR AND (II) IN THE CASE OF OPTION #1,
RECEIVED BY OPERATOR BEFORE THE DATE THAT THE REGISTRATION STATEMENT RELATED TO
THE IPO IS DECLARED EFFECTIVE BY THE SECURITIES AND EXCHANGE COMMISSION OR, IN
THE CASE OF OPTION #2, RECEIVED BY OPERATOR WITHIN ONE HUNDRED AND EIGHTY (180)
DAYS AFTER THE CLOSING OF THE IPO.
THIS AMENDMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER
TO BUY ANY WARRANTS OR COMMON STOCK IN ANY JURISDICTION WHERE IT IS UNLAWFUL TO
MAKE SUCH AN OFFER OR SOLICITATION, AND NO GRANT OF WARRANTS OR ISSUANCE OF
COMMON STOCK IS MADE HEREBY THAT IS IN VIOLATION OF THE SECURITIES OR "BLUE SKY"
LAWS OF ANY JURISDICTION.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
Data Content Provider NetSelect, Inc.
By: By:
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Name: Name:
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Title: Title:
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RealSelect, Inc.
By:
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Name:
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Title:
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Accepted by RealSelect's Corporate
Office
By:
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