EXHIBIT 10.9
WEBSITE LICENSE AGREEMENT
AGREEMENT made this____day of December, 1999, by and between YAK
COMMUNICATIONS, INC. ("YAK"), a Florida corporation with principal offices
located at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx and
MAIN STREET XXX.XXX, INC. ("MainStreet"), a Delaware corporation with principal
offices at 000 Xxxxxx Xxxx, Xxxxx Xxxxxxxxx, XX 00000.
WHEREAS, MainStreet maintains a site on the Internet World Wide Web (the
"Website") having a uniform resource locator address ("URL") at
xxx.XxxxXxxxxxXXX.xxx or such other URLs as may hereinafter be registered, which
has been established to provide corporations with the opportunity to make
registered public offerings of their stock through a registered prospectus (a
"Registered Prospectus") by way of electronic auction to members of the public
in states of the United States of America where such offerings are duly
authorized by the laws of the said respective states and of the United States
through a revocable limited license to use space on the Website for such
purpose; and
WHEREAS, YAK is desirous of making a public offering of its securities
and is desirous of licensing the facilities of the Website owned by MainStreet.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. MAINSTREET SERVICES. Subject to YAK fulfilling all of the terms and
conditions hereinafter set forth, MainStreet shall provide the following
Services:
(a) LICENCE OF WEBSITE SPACE. MainStreet shall grant a license to YAK
of sufficient space on its Website for a period not to exceed ninety (90)
consecutive days (Saturdays,
Sundays and holidays included), such a period to be known as the "Offering
Period," to enable YAK to publish its Registered Prospectus for the purpose of
offering and selling its securities to members of the public. In connection with
the licensing, MainStreet shall also publish the name of YAK on its Website,
together with a brief description of YAK's business, which description shall be
consistent with the terms of the Prospectus.
(b) TRAFFIC. In connection with the grant of the license, MainStreet
agrees that it shall maintain, administer and manage the Website so as to insure
sufficient bandwidth to facilitate continuous data traffic of YAK's Registered
Prospectus and any and all bids submitted by users for the purchase of YAK's
stock.
(c) INFORMATION TO BE PROVIDED. MainStreet shall provide to YAK and
its lawfully appointed agents, during the Offering Period and for a period of
seven (7) business days after the termination of the Offering Period, access to
all information regarding bids and bidders, including each bidder's address,
e-mail address, Social Security Number, telephone number and respective bid,
and, in addition, shall provide such information, when requested by YAK, in a
usable paper or electronic format.
2. MAINSTREET'S RELATIONSHIP TO YAK . The relationship between MainStreet
and YAK shall be that of a licensor and licensee, which license may be revoked
pursuant to the terms of paragraph 10 herein. Nothing contained herein nor any
of the services to be performed by MainStreet shall be construed to mean or
infer that MainStreet is engaged in or selling YAK's securities, nor that
MainStreet is acting in any capacity as an underwriter as that term is defined
under Section 2(a)(11) of the Securities Act of 1933 (the "Act"), nor that
MainStreet is acting as a broker, dealer or member of a selling group, nor that
MainStreet is acting as an agent, affiliate,
2
patron or joint venturer of YAK or as underwriter as that term may be defined
under any state law within the United States.
3. PUBLIC OFFERING. The information relating to YAK's public offering on
the Website shall be limited solely to the publication of the Registered
Prospectus that has been declared effective by the United States Securities and
Exchange Commission (the "SEC"). YAK shall be required to deliver to MainStreet
at least five (5) business days before the first publication of the Registered
Prospectus on the Website a printed prospectus (including text of any
video-style portion of the prospectus) and an electronic version (floppy
diskette, CD-ROM, or DVD) of the prospectus together with a certification from
YAK's legal counsel that said printed version and electronic version of the
prospectus as delivered to MainStreet are the same as the Registered Prospectus
declared effective by the SEC. MainStreet will not accept any other data or
material for publication on the Website in connection with YAK's public
offering.
4. PROHIBITIONS. At all times during the Offering Period on the Website,
YAK shall not publish or disseminate information through any medium including
financial information concerning YAK which information or financial information
is not fully consistent with the information contained in the Registered
Prospectus published on the Website. Prior to any such publication or
dissemination of such information, YAK shall obtain the opinion of its counsel
that such publication or dissemination of such additional information is not in
violation of the Securities Act of 1933, which opinion shall be provided to
MainStreet's counsel prior to any publication or dissemination. Nothing in this
Section 4 or otherwise herein shall limit or otherwise effect YAK's publication
or dissemination of any information or materials in its ordinary course of
business, nor shall this Section 4 or any other provision of this Agreement
require any opinion of counsel prior to or in relation to the publication or
dissemination of any such information or materials.
3
5. CONDITIONS TO LISTING. Subject to the payment of the fee by YAK
described in paragraph 6 herein, and not less than five (5) business days prior
to the publication of the Registered Prospectus on the Website, YAK shall have
fulfilled the following conditions:
(a) COMPLIANCE WITH SEC. YAK shall have duly and lawfully completed
all filings with the SEC and the registration statement covering the offering to
be offered on the Website shall have been declared effective by the SEC. Proof
thereof in form satisfactory to MainStreet's counsel must be furnished to
MainStreet's counsel prior to the commencement of the Offering Period.
(b) COMPLIANCE WITH FILING STATES. YAK shall have duly and lawfully
completed all filings required by the laws of those states (the "Filing States")
in which YAK intends to offer its securities and shall have notified each Filing
State of its plan of distribution, and YAK shall have furnished to MainStreet's
counsel, at least five business days prior to the commencement of the Offering
Period, satisfactory proof that said offerings have been approved or qualified
for sale in each of the Filing States. YAK understands that MainStreet will not
accept any bids from any person residing in a state where the securities have
not been so registered or qualified for sale.
(c) APPOINTMENT OF TRANSFER AGENT. YAK shall have retained American
Stock Transfer & Trust Company ("American Stock Transfer") or such other
transfer agent so approved by MainStreet to act as transfer agent (the "Transfer
Agent") for YAK in connection with the issuance of its shares and to further act
as escrow agent (the "Escrow Agent") for the receipt of the funds representing
bids for the purchase of YAK stock through the facilities of the Website. YAK
shall furnish to counsel for MainStreet copies of the appointment of such
Transfer Agent and Escrow Agent together with all executed contracts as may be
required by such Transfer Agent and Escrow
4
Agent and evidence of payment of any and all fees and charges required by such
Transfer Agent and Escrow Agent in connection with their respective
undertakings.
(d) APPOINTMENT OF INDEPENDENT AUDITORS. YAK shall appoint the
independent auditors who appear as "Experts" in the Prospectus for the purpose
of examining and certifying all bids received by YAK during the Offering Period.
YAK shall be required to furnish MainStreet with a written acknowledgment from
said auditors that they agree to undertake such examination and certification of
all bids at the close of the Offering Period and to furnish said certification
to the Transfer Agent with instructions regarding the delivery of securities,
the refund of any bids and the delivery of funds representing the proceeds of
the offering to YAK.
(e) COMPLIANCE. YAK shall at all times fully comply with all
applicable present and future provisions of the laws of the United States and
all Filing States, including but not limited to the filings of any post
effective amendments to the registration statement and prospectus.
(f) EXCHANGE LISTING. Prior to the commencement of the Offering
Period, YAK must have applied and satisfied MainStreet that they are likely to
meet the listing criteria for listing on one of the following exchanges: NASDAQ
Small Cap, The American Stock Exchange (the "AMEX") or the New York Stock
Exchange ("NYSE"). At or prior to the completion of the Offering Period YAK
shall have been formally accepted for listing on one of the aforementioned
exchanges, which listing shall take effect upon the completion of the public
offering.
(g) Contemporaneously with the execution of this Agreement, YAK shall
furnish to MainStreet a duly executed Certificate of a Resolution of the Board
of Directors of YAK authorizing the officers of YAK to enter into, execute and
bind YAK to this Agreement.
6. CONSIDERATION FOR THE LICENSE. The consideration for the grant of the
license to YAK shall be One Hundred Thousand Dollars ($100,000). Simultaneously
with the execution
5
of this Agreement by the parties hereto, YAK shall pay to MainStreet the sum of
twenty-five thousand ($25,000.00) dollars as initial payment on account of the
full consideration, receipt of which is hereby acknowledged by MainStreet.
Notwithstanding anything to the contrary contained herein, no portion of the
initial payment shall be refundable under any circumstances. Upon a successful
offering wherein all shares have been sold within the Offering Period, YAK shall
then instruct the Escrow Agent to deduct from the proceeds of the public
offering the sum of seventy-five thousand dollars ($75,000.00) and remit such
sum directly to MainStreet. In the event that fewer than all of the shares
offered have been sold within the Offering Period, the sum of seventy-five
thousand ($75,000.00) shall nonetheless be due and payable to MainStreet within
ten (10) days after the termination of the offering.
7. RESPONSIBILITY OF YAK . YAK shall bear all responsibility for
arranging for the collection of funds, the return of any funds and the delivery
of all securities through its duly appointed Transfer Agent and Escrow Agent.
Nothing contained herein shall create any obligation on the part of MainStreet
to insure the collection of any funds, the return of any funds or the delivery
of any securities. YAK shall instruct each bidder to transmit all funds to the
appointed Transfer Agent or Escrow Agent.
8. THE BIDDING PROCESS. It is understood and agreed that the bidding
price for YAK stock shall be determined in accordance with a "Dutch style
auction," which for the purposes of this Agreement shall mean the following.
Prior to the Offering Period, YAK shall, at the time of listing on the Internet,
establish the number of shares to be offered and sold and the minimum acceptable
bid price to YAK for each share. The winning bid price to be paid by all bidders
shall be the lowest priced bid from the group of the highest priced bids (the
"Last Bid") included among successful offers for purchase upon the closing the
of the auction, provided that such bid is greater
6
than or equal to the minimum acceptable bid price as established by YAK. In the
event any bid received is greater than the Last Bid, then such bidder shall be
entitled to a refund of the excess over the Last Bid.
9. SYSTEM FAILURE. In the event that the MainStreet Website encounters
technical difficulties with hardware, software, or connectivity which renders
users unable to view the Registered Prospectus and/or place bides, MainStreet
agrees to extend the Offering Period for that period equivalent to the time the
site or the information on the site was inaccessible to the user.
10. REVOCATION. MainStreet reserves the right to revoke the license
granted herein at any time in the event of any of the following occurrences or
events:
(a) Any representation, whether orally or in writing, by YAK or its
officers, directors, agents, servants or employees that MainStreet is acting in
any capacity other than a licensor.
(b) Any publication or dissemination by YAK of information which is
inconsistent with the information contained in the Registered Prospectus.
(c) Any material misrepresentation or omission of a material fact in
the Registered Prospectus.
(d) Any material misrepresentation regarding the effectiveness of the
Registered Prospectus.
(e) Any misrepresentation regarding the status of the State Filings.
(f) Failure to obtain and contract with a Transfer Agent and/or Escrow
Agent approved by MainStreet.
(g) Any failure to file a Post Effective Amendment to the Registration
Statement where such Post Effective Amendment is required.
7
(h) Any misrepresentation regarding YAK qualification for listing on
the NASDAQ SmallCap exchange, the American Stock Exchange or New York Stock
Exchange.
(i) Any misrepresentation, or course of conduct which causes any
adverse injury to the business reputation of MainStreet.
11. LICENSEE'S DAMAGE.
(a) In no event shall Licensor be liable to Licensee for any indirect,
special or consequential damages or lost profits arising out of or related to
this License Agreement or the performance or breach hereof, even if Licensor has
been advised of the possibility thereof. Licensor's liability to licensee
hereunder, if any, shall in no event exceed the total of the license fees paid
to Licensor hereunder by Licensee.
(b) In no event shall Licensor be liable to Licensee for any damages
resulting from or related to any failure of the software system, including, but
not limited to, loss of data. Licensor's sole remedy shall be a credit of time
as set forth in paragraph 9 above.
12. INDEMNITY. Provided that YAK is found to have violated the Securities
Act of 1933, as amended, and solely to the extent of the damages so caused by
such violation in connection with its sale of securities through a prospectus
posted on MainStreet's Internet site, YAK shall defend, indemnify and hold
MainStreet harmless, including reimbursement of all reasonable attorney's fees,
from any and all claims based on or related to the public offering of YAK,
including, but not limited to, any and all claims that YAK published a false and
misleading prospectus or misrepresented itself, its financial condition, or its
business prospects, or its intended use of the proceeds of the offering, or the
background of its principals, or any improper or incorrect computation of bids;
or a failure to refund monies due bidders, or a failure to deliver securities to
purchasers thereof or for any other reason whatsoever.
8
13. MAINSTREET'S REPRESENTATIONS. MainStreet represents and warrants to
YAK the following:
(a) MainStreet shall comply with any and all laws and regulations
applicable to it, including any and all Federal and State securities laws.
(b) MainStreet shall use its best commercial efforts to maintain its
Internet site in good working order, accessible to the public, and shall monitor
its site to determine that it is accessible and in good working order.
(c) MainStreet shall not take any action or undertake any course of
conduct that materially injures YAK's offering posted on MainStreet's site, or
that materially injures the business or reputation of YAK.
(d) Except as specifically provided in this Agreement to the contrary,
YAK shall have no liability to MainStreet for anything contained in its
prospectus or otherwise, or that relates to its offering of its shares or this
Agreement.
14. CLAIMS.Any claims or disputes arising out of or related to this
Agreement must be brought no later than one year after the date when the event,
act or omission upon which such claim or dispute is predicated first arises and
all such claims or disputes shall be resolved by binding arbitration to be held
in New York City before three arbitrators in accordance with the Commercial
Rules of Arbitration of the American Arbitration Association. Judgment upon the
award rendered by the arbitrators may be entered in any court.
15. GENERAL.
(a) The rights and obligations under Paragraphs 6, 7 and 11 shall
survive and continue after any expiration, termination or cancellation of this
Agreement or any portion thereof.
9
(b) This Agreement shall be deemed made under the laws of the State of
New York and shall be interpreted in accordance with the laws of such state.
(c) This is the entire agreement between the parties relating to the
subject matter thereof, and it may not be modified, except by a written
amendment thereto executed by authorized representatives of both parties.
(d) This Agreement and all rights hereunder may not be assigned by YAK
or MainStreet.
(e) All notices required to be sent by either party shall be in
writing and shall be sent by registered or certified mail, postage prepaid, to
the address of the other party set forth on the first page hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives and to be effective as of the
date first above written.
MAIN STREET XXX.XXX, INC.
a Delaware corporation
By: /s/ XXX XXXXXXX, CEO
----------------------------
Name of Officer and Title
YAK COMMUNICATIONS (USA), INC.
By: /s/XXXXXXX XXXXXXX
----------------------------
10
