Exhibit 4.04.1
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. Exercisability and Transfer Restrictions of First Warrant. The warrant
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to purchase the initial one-half of the Allocation described in the first
sentence of Section 4(b) of the Addendum that will be issued to Data Content
Provider (the "FIRST WARRANT") will be exercisable at any time after the closing
of the IPO until the third anniversary thereof and will contain 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 shall be Transferred only in accordance with the following restrictions:
(i) No such shares may be Transferred within one hundred and eighty 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%).
3. Effect of this Amendment for Option A Elections. In the event that Data
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Content Provider elects Option A in Section 8 below, then the Addendum shall be
amended as set forth in this Section 3.
(a) Additional Term. The term of the Addendum shall be extended for an
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additional twelve (12) month period. In addition, in the event that the
Agreement expires before such additional twelve (12) month period ends, the
length of the Agreement shall be extended until the Addendum, as amended hereby,
expires.
(b) Issuance of Option A Warrant. In addition to the obligation set
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forth in the first sentence of Section 4(b) of the Addendum to issue Data
Content Provider a Warrant to purchase the initial one-half of the Allocation
(the "FIRST WARRANT") at a per share exercise price equal to the price to the
public per share of Common Stock in the IPO, XxxxXxxxx.xxx shall issue to Data
Content Provider a Warrant to purchase the remaining one-half of the Allocation
(the "OPTION A WARRANT") with the same per share exercise price as the First
Warrant. This Section 3(b) supersedes the rights and obligations set forth in
the second sentence of Section 4(b) of the Addendum in their entirety.
(c) Exercisability and Transfer Restrictions of Option A Warrant. The
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Option A Warrant will be exercisable at any time after the closing of the IPO
until the fifty-fourth month anniversary thereof and will contain 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
A 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) Six and One-Quarter Percent (6.25%). This Section
3(c) supersedes the rights and obligations set forth in the last sentence of
Section 4(b) of the Addendum in their entirety.
4. Effect of this Amendment for Option B Elections. In the event that Data
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Content Provider elects Option B in Section 8 below, then the Addendum shall be
amended as set forth in this Section 4.
(a) Additional Term. The term of the Addendum shall be extended for an
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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.
(b) Issuance of Option B Warrant. In addition to the obligation to
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issue the First Warrant, XxxxXxxxx.xxx shall issue to Data Content Provider a
Warrant to purchase the remaining one-half of the Allocation (the "OPTION B
WARRANT") with the same per share exercise price as the First Warrant. This
Section 4(b) supersedes the rights and obligations set forth in the second
sentence of Section 4(b) of the Addendum in their entirety.
(c) Exercisability and Transfer Restrictions of Option B Warrant.
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The Option B Warrant will be exercisable at any time after the closing of the
IPO until the third anniversary thereof will contain 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 B 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%). This Section 3(b) supersedes the rights and obligations set
forth in the second sentence of Section 4(b) of the Addendum in their entirety.
5. Effect of this Amendment for Option C Elections. In the event that Data
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Content Provider elects Option C in Section 8 below, then the Addendum shall be
amended as set forth in this Section 5.
(a) Additional Term. The term of the Addendum shall be extended for an
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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.
(b) Issuance of Option C Warrant. In addition to the obligation to
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issue the First Warrant, as of the date that a duly executed copy of this
Agreement has been received by Operator, XxxxXxxxx.xxx shall issue
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to Data Content Provider a Warrant to purchase the remaining one-half of the
Allocation (the "OPTION C WARRANT"). The per share exercise price of the Option
C Warrant shall 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). This
Section 5(b) supersedes the rights and obligations set forth in the second
sentence of Section 4(b) of the Addendum in their entirety.
(c) Exercisability and Transfer Restrictions of Option C Warrant. The
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Option C Warrant will be exercisable at any time after the date of issuance
until the third anniversary of the such issuance date and will contain 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 C 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 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%). This Section
5(c) supersedes the rights and obligations set forth in the last sentence of
Section 4(b) of the Addendum in their entirety.
6. 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.
7. 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.
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8. 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 :
Option A: Option B: Option C:
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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 A OR
OPTION B, RECEIVED BY OPERATOR WITHIN ONE DAY OF 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 C, 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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