Exhibit 4.1
HOMESEEKERS/iQUALIFY, LLC
Agreement for the Withdrawal of a Member
and
Amending the Operating Agreement
This Agreement is made as of the 28th day of October, 1999 by and
between Homeseekers/iQualify, a Nevada limited liability LLC (the "LLC"), with
offices located at 000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxx, consisting of
XxxxXxxxxxx.xxx Incorporated, a Nevada corporation ("Homeseekers"), Xxxxx.xxx,
Inc., a Delaware corporation ("Finet") and Monument Mortgage, Inc., a California
corporation ("Monument") (collectively the "Members").
RECITAL
A. Homeseekers and Finet entered that HomeSeekers/iQualify, LLC
Operating Agreement, dated January 16, 1998 (the "Operating
Agreement") as the two original members of
HomeSeekers/iQualify, LLC, HomeSeekers and Finet each owned an
equal fifty (50%) percent interest in the LLC.
B. Homeseekers, Finet and Monument entered into that Agreement
Admitting New Member and Amending the Operating Agreement,
dated October 27, 1999 (the "Amendment to Operating
Agreement").
C. Homeseekers desires to sell its interest in the LLC and all of
its assets to Finet, and to withdraw as a member of the LLC.
X. Xxxxx desires to acquire Homeseekers' interest in the LLC,
consent with Monument to the withdrawal of Homeseekers as a
member of the LLC and amend the Operating Agreement, upon the
following terms and conditions.
1. TRANSFER OF INTEREST
(a) The assets of the LLC are composed solely of three hundred
thousand (300,000) shares of NDS Software common stock (the
"Assets") and are represented by NDS Share Certificates
Numbers 4640, 4641 and 4642, each in the amount of one hundred
thousand shares (the "NDS Shares"), copies of which are
collectively attached hereto as Exhibit A to this Agreement.
(b) Homeseekers agrees to sell and transfer to Finet its 50%
interest in the LLC and in all of its Assets, in consideration
of Finet transferring to Homeseekers six hundred thousand
(600,000) shares of XxXxx.xxx, Inc. common stock (the "Finet
Shares"), within fifteen days after the date of this
Agreement.
(c) Finet and Monument consent to the withdrawal of Homeseekers as
a member of the LLC and Homeseekers' transfer of its 50%
interest in the LLC and in all of its Assets to Finet.
2. INTERESTS OF PARTNERS/MEMBERS
Upon completion of the transactions described herein, the interests of
all the members will be as follows:
Homeseekers 0%
Finet 90%
Monument 10%
3. OPERATING AGREEMENT
A copy of the Operating Agreement dated January 16, 1998 is attached to
this Agreement as Exhibit B and incorporated in it by this reference,
and such agreement will continue in full force and effect except as
modified by this Agreement.
4. OPERATION OF BUSINESS
(a) Finet and Monument shall, and shall cause their affiliates and
the LLC to, as soon as practicable following the date hereof,
cease to use any trade names, trademarks, service marks,
logos, designs or similar rights to and interests in the name
"Homeseekers" or any abbreviation of variation thereof in the
operations of their respective businesses or the LLC or on any
stationary, business form, packaging, sign or other property,
real or personal ("Name Change Process").
(b) Finet and Monument shall (i) promptly amend the Operating
Agreement and (ii) prepare, execute and file within 14 days
after date hereof appropriate documents with the Secretary of
State of Nevada and any other appropriate authorities where
the LLC is qualified to do business to change the name of the
LLC so that it does not include the name "Homeseekers" or any
name confusingly similar thereto.
(c) The provisions of sections 4.(a) and (b) above shall not
prohibit the sale of the NDS Shares by the LLC prior to the
completion of the proposed Name Change Process.
(d) The business of the LLC will be operated without interruption,
in the manner provided by the attached Operating Agreement,
except as modified by this Agreement.
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5. OBLIGATIONS AS TO SHARES
(a) Finet agrees to exercise its reasonable best efforts to
include the Finet Shares in a Registration Statement or
Amendment to a current Registration Statement to be filed
prior to December 31, 1999.
(b) Attached collectively hereto as Exhibit C is a form of Opinion
Letter ("Opinion Letter") and Form 144, as completed by Finet,
which has been reviewed by both Homeseekers and its transfer
agent ("Transfer Agent"), each of which have found the form of
Exhibit C to be satisfactory so as to comply with the
requirements of the restrictive legend attached to the NDS
Shares and to allow the sale and transfer of the NDS Shares by
the LLC.
(c) Upon the execution of this Agreement, Homeseekers will direct
its Transfer Agent to authorize the transfer of the NDS Shares
under Rule 144 of the Securities Act of 1933 after such
Transfer Agent has been provided with a legal opinion of the
counsel to Finet, in the form of the Opinion Letter attached
hereto, together with such other supporting documentation from
Finet that such transfer agent may reasonably request.
(d) Finet and Homeseekers shall each execute and deliver such
other documents or certificates required under this Agreement
or as may be reasonably requested by the other party to carry
out the provisions and purpose of this Agreement,
6. CONSTRUCTION AND INTERPRETATION
This Agreement shall be construed and interpreted in accordance with
the substantive laws of the State of Nevada.
7. DESCRIPTIVE HEADINGS
The descriptive headings of the several articles and sections contained
in this Agreement are included for convenience only and shall not
control or affect the meaning or construction of any of the provisions
hereof.
8. MULTIPLE COUNTERPARTS
This Agreement may be executed in a number of identical counterparts,
each of which, for all purposes, is to be deemed as original, and all
of which constitute, collectively, one agreement, but in making proof
of this Agreement, it shall not be necessary to produce or account for
more than one such counterpart.
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9. EFFECTIVE DATE
For all purposes hereof, this Agreement shall be deemed effective as of
the date first written above.
XXXXXXXXXXX.XXX, INC. XXXXX.XXX, INC.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx Xxxxxx
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Signature Signature
Xxxxxxx X. Xxxxxxx Xxxx Xxxxxx
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Printed Name Printed Name
CEO CFO
-------------------------------- ------------------------------------
Title Title
MONUMENT MORTGAGE, INC.
/s/ Xxxx Xxxxxx
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Signature
Xxxx Xxxxxx
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Printed Name
CFO & Secretary
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Title
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