Domain Name Assignment Agreement
This Domain Name Assignment Agreement is made this 1st day of January, 1999
("the Agreement"), by and between First Mortgage Network, Inc., a Florida
Corporation, located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
hereinafter ("PURCHASER"), and Xxxxxx.Xxx. LLC. a California limited liability
company, located at 00 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
hereinafter ("SELLER").
RECITALS
SELLER hereby agrees to sell, transfer and assign, and PURCHASER hereby agrees
to purchase the domain name xxx.xxxxxxxx.xxx (the "Domain Name") subject to the
terms and conditions of this Agreement.
AGREEMENT
The parties agree as follows:
1. Domain, Name Assignment Agreement.
1.a Assignment of Domain Name. For good and valuable consideration,
payable at Closing as more particularly described herein SELLER hereby
agrees to transfer and assign to PURCHASER at the Closing all of
SELLER'S right, title and interest in and to the Domain Name
"xxx.xxxxxxxx.xxx" and the registration thereof, together with the
goodwill of the business connected with and symbolized by such Domain
Name, including the trademark and the service xxxx "xxxxxxxx.xxx" and
any intellectual property rights relating thereto, to the extent any
such trademark, service xxxx, or intellectual property rights exist.
The transfer and the assignment shall take effect at the Closing as
set forth herein upon PURCHASER'S making the payments provided for in
Sections 4a and 4b.
1.b Cooperation in Transferring Domain Name. SELLER agrees to cooperate
with PURCHASER and to follow PURCHASER'S reasonable instructions in
order to effectuate the transfer of the Domain Name registration in a
timely manner. Specifically, at the Closing SELLER agrees to prepare
and transmit the necessary InterNic Registrant Name Change Agreement
(RNCA) and or to correspond with InterNic to authorize transfer of the
Domain Name, effective as of the Closing Date as hereinafter defined.
1.c Warranty. SELLER warrants and represents that it has unencumbered
rights in the Domain Name, that SELLER property registered the Domain
Name with InterNic without committing fraud or misrepresentation, that
SELLER has the authority to transfer the Domain Name, and, that to the
best of SELLER'S knowledge, the Domain Name does not infringe the
rights of any third party.
1.d Other Foreign Language Versions. The parties hereto agree that if
either party acquires rights to other URL's which are foreign language
versions of xxxxxxxx.xxx, that the acquiring party shall be required
to link such URLs directly to xxxxxxxx.xxx for as long as this
Agreement is in effect.
2. Obligations of SELLER.
SELLER agrees to provide PURCHASER the following during the term of this
Agreement:
2.a SELLER shall provide PURCHASER with a text URL link at a Premium
Location (as defined below), on SELLER'S home page, xxx.xxxxxx.xxx,
for and to the web site xxx.xxxxxxxx.xxx. (Premium location is defined
herein as "above the screen cutoff line - i.e., the viewable page area
without scrolling on a typical computer screen").
Directly underneath such link, SELLER shall provide a web site
description of xxxxxxxx.xxx the content of which shall be provided by
SELLER.
2.b SELLER shall provide PURCHASER with promotional space (445x56 pixels
in size) which will include a banner advertisement for
xxx.xxxxxxxx.xxx within the Mortgage Directory of the 0xxxxxx.xxx web
site located within the Credit.ComNetwork, (the "Network") and hyper
text markup language (HTML) which will allow visitors to hyperlink to
PURCHASER'S homepage xxx.xxxxxxxx.xxx.
2.c SELLER shall conduct via its Network member sign in interface, for a
period of two years, two customer surveys for each such year. Each
survey shall consist of no more, than 10 questions. The content of
each survey shall be subject to the SELLER'S reasonable approval.
2.d SELLER shall promote via an email campaign, PURCHASER'S upsell offers
to SELLER'S member database twice per year for a term of two years.
The content of each such email campaign and the PURCHASER'S upsell
offers shall be subject to the SELLER'S reasonable approval.
2.e As may be mutually agreed between the parties, SELLER may (i) offer
and PURCHASER may accept any vacant or remnant banner advertisement
space or special links throughout the Network free of charge to
PURCHASER, (ii) provide imbedded links to xxx.xxxxxxxx.xxx in contexts
wherever the subject matter references mortgage companies and mortgage
lending on the Network. This linking strategy shall be performed on a
goodwill basis and shall be discussed as an ongoing strategic
component between both parties.
3. Obligations of PURCHASER.
PURCHASER shall provide SELLER the following during the term of this Agreement:
3.a PURCHASER shall provide SELLER with non-hyperlink promotional space
(110x110 pixels in size), located in a Premium Location as described
and defined in Paragraph 2a above on the xxxxxxxx.xxx homepage
designating xxxxxxxx.xxx as a member of the Xxxxxx.Xxx Network.
3.b PURCHASER shall host and provide support for the SELLER'S Network
members Common Gateway Interfaces "CGI's" and "cookies".
3.c PURCHASER shall provide SELLER with promotional space (480x60 pixels
in size) which shall include a banner advertisement and the hyper text
markup language (HTML) provided by SELLER which shall include the HTML
code
A HREF="xxxx://xxx.xxxxxx.xxx/xxx-xxx/xxxxx/xxxxxXXX
/?xxxx://xxx.xxxxxx.xxx/"> IMG SRC="xxxx://xxx.xxxxxx.xxx/xxx/xxxxxx
/frm_banner.gif"> /A
and which will allow visitors to hyperlink to
SELLER'S home page, xxx.xxxxxx.xxx, in a Premium Location as described
and defined in Paragraph 2a above, on the final page displayed to
visitors who have completed the mortgage loan application process on
xxx.xxxxxxxx.xxx.
3.d PURCHASER agrees to replace, and PURCHASER agrees to cause its
affiliates (as defined in Rule 144 promulgated under the Securities
Act of 1933, as amended) ("Affiliates"), to replace PURCHASER'S
xxx.xxxxxxxx.xxx web site with xxx.xxxxxxxx.xxx at all web sites
currently using the loanshop brand, or to point those URLs directly
(no redirects) at xxxxxxxx.xxx. This provision shall include all multi
lender sites owned, operated and/or branded by PURCHASER or any of its
Affiliate entities.
2
3.e PURCHASER shall be responsible for the cost and execution of all
marketing and sales activities to promote. the xxxxxxxx.xxx brand.
PURCHASER shall have complete responsibility for, and control over,
the development of the xxxxxxxx.xxx site. PURCHASER shall work with a
person designated by SELLER (initially, Xxxx Xxxxxxx) on the
implementation of cookies and CGI's.
3.f PURCHASER on behalf of itself and its Affiliates agrees that it shall
make xxx.xxxxxxxx.xxx its exclusive online owned, operated and/or
branded web site covering all areas of direct to consumer mortgage
lending, thereby replacing xxx.xxxxxxxx.xxx which is currently
PURCHASER'S web site for that purpose, and xxxxxxxxxxxxx.xxx which was
to be PURCHASER'S subprime internet mortgage lending web site.
3.g PURCHASER shall have the sole right to use an alternative domain name
other than xxxxxxxx.xxx or add other PURCHASER owned and branded web
sites to xxxxxxxx.xxx, subject to the provisions of this Agreement,
including without limitation, the provisions of paragraphs 4.c. and
4.d. herein.
3.h It is acknowledged and agreed by the parties hereto that (i) SELLER
shall not be entitled to any payments under this Agreement as a result
of fees earned by PURCHASER from loan services performed by PURCHASER
so long as such loans are originated by third parties that are not
PURCHASER, Affiliates of PURCHASER or their respective Affiliates; and
(ii) SELLER is not entitled to any fees generated from third party web
sites created by PURCHASER if those third party web sites are owned by
persons or entities that are not PURCHASER, Affiliates of PURCHASER,
or their respective Affiliates, including without limitation, (a) web
sites that are owned by third party clients (that are not Affiliates
of PURCHASER or PURCHASER'S Affiliates) which are operated on an
outsource or vanity label basis by PURCHASER, (b) any back office
outsourcing contracts, such as for Quickenmortgage lenders for whom
PURCHASER is the outsource provider and where the site is owned by the
third party client (that is not an Affiliate of PURCHASER or
PURCHASER'S Affiliates) and operated in the name of the third party
client, and (c) PURCHASER'S web site xxx.xxxxxxxxx.xxx (so long as
this PURCHASER broker referral service is a lead generation service
that requires face to face loan officer assistance) and any third
party business acquired in the future by PURCHASER that does not have
representation on or links from xxxxxxxx.xxx.
3.i PURCHASER covenants and agrees that during the term of this Agreement
PURCHASER shall cause the re-registration of the Domain Name with
InterNic: (or any successor organization) for the mutual benefit of
the parties hereto and the PURCHASER shall file all necessary renewals
for the Domain Name. If PURCHASER fails to file any required
application, registration, renewal or amendment necessary to preserve
the registration of the Domain Name with InterNic (or any successor
organization), or if at anytime PURCHASER shall fail to perform its
obligations set forth in the immediately preceding sentence then
PURCHASER shall promptly pay within three (3) business days of such
breach to SELLER the Default Amount as defined below in immediately
available funds. For purposes of this Agreement, the term "Default
Amount" means the dollar amount equal to the difference between (x)
one million eight hundred thousand dollars ($1,800,000) and (y) the
aggregate amount of payments made to SELLER pursuant to Paragraphs 4c
and 4d above plus the Present Value of the Receivables converted under
Section 4.e.
3
4. Purchase Price.
PURCHASER agrees to pay SELLER as follows:
4.a At Closing, PURCHASER shall issue Twenty Thousand (20,000) shares
(collectively, the "Shares") of its Common Stock, $0.01 par value per
share (the "Common Stock"), to SELLER, representing approximately
0.28% of the issued and outstanding capital stock of PURCHASER as
consideration hereunder. Subject to the rights of first refusal
granted to signatories of the Series B Preferred Stock Purchase
Agreement dated March 29, 1996, as amended, among PURCHASER and such
signatories, SELLER shall have preemptive rights (as governed by the
principles set forth in Section 607.0630(2). Florida Statutes) prior
to an initial public offering.
In connection with the issuance of the Shares of Common Stock, SELLER
represents, and warrants that (i) it is an "accredited investor"
(within the meaning of Regulation D of the Securities Act of 1933, as
amended (the "Act"); (ii) it is aware that such Common Stock will be
"restricted securities" subject to transfer restriction, and will not
be registered under the Securities Act of 1933, as amended; (iii) such
Common Stock is being acquired solely for SELLER'S own account for
investment and is not being purchased for resale, fractionalization or
distribution; and (iv) it has no contract, undertaking, agreement or
arrangement with any person to sell, transfer or pledge such Common
Stock, or any part thereof and it has no present plan to enter into
any such contract, undertaking, agreement or arrangement. SELLER
agrees not to dispose of the Shares of Common Stock or any interest
therein, unless and until such Common Stock has been validly
registered under the Act and all applicable state securities laws or
transfers are permitted under Rule 144 of the Securities Act of 1933,
as amended, or PURCHASER has been furnished an opinion of counsel
reasonably safisfactory to PURCHASER that the intended disposition
does not violate the Act or the rules and regulations of the
Securities and Exchange Commission thereunder, nor any applicable
state securities laws. PURCHASER shall provide SELLER with
registration rights to the extent set forth in the Registraton Rights
Agreement attached hereto as Exhibit A.
4.b At Closing, Two Hundred Thousand Dollars ($200,000.00) via wire
transfer in immediately available funds to an account designated by
SELLER.
4.c Commencing on the Closing Date, PURCHASER shall pay SELLER Fifty
Dollars ($50.00) per loan funded through xxx.xxxxxxxx.xxx, or any
other PURCHASER owned, operated or branded consumer direct web sites
originating residential mortgage loans of any kind (excluding web
sites excluded from this Agreement), and excluding any loans pursuant
to which the SELLER is entitled to receive a fee pursuant to paragraph
5 below, up to a cap of Three Hundred Thousand Dollars ($300,000.00)
(the "Funded Cap"). Payment under this Xxxxxxxxx 0x xxxxx xx paid to
SELLER on a monthly basis in arrears and are due on the fifteenth
(15th) day of each calendar month.
4.d Once the Funded Cap has been reached, PURCHASER shall pay SELLER
Fifty-Dollars ($50.00) per each loan funded through the
xxx.xxxxxxxx.xxx web site or any other PURCHASER owned, operated or
branded consumer direct web sites dealing with residential mortgage
loans of any kind (excluding web sites excluded from this Agreement)
in excess of six thousand (6,000) loans per year (or prorata portion
thereof) and excluding any loans pursuant to which the SELLER is
entitled to receive a fee pursuant to paragraph 5 below, up to a
cumulative cap of One Million Five Hundred Thousand Dollars
($1,500,000.00) (the "Additional Cap"). Payment under this Paragraph
4d shall be paid to SELLER on a monthly basis in arrears and are due
on the fifteenth (15th) day of each calendar month after the 6,000
loan level is reached as set forth above.
4
4.e Upon the first fully underwritten, firm commitment public offering
pursuant to an effective registration statement (other than any
registration statement on any form not permitting registration of
securities offered by selling security holders) under the Act,
covering the offer and sale by PURCHASER of Common Stock (an "IPO"),
SELLER shall have the right to convert receivables that may be earned
pursuant to Paragraphs 4c and 4d (the "Receivables"), into Common
Stock of PURCHASER. The Receivables shall be appraised by an
independent appraiser (the "Independent Appraiser") who assesses the
present value or the stream of Receivables expected to be received by
SELLER under the terms of this Agreement after the conversion, taking
into account such factors as the Independent Appraiser deems necessary
(the "Present Value of the Receivables"). SELLER shall have the right
to convert any percentage of the Present Value of the receivables from
zero to one hundred percent (0% to 100%), at SELLER'S option.
PURCHASER shall give SELLER notice of the IPO by registered mail,
mailed not less than 60 days prior to the date the registration
statement is expected to be filed with the Securities and Exchange
Commission, at the address set forth in Section 13g. In order to
convert the Receivables into Common Stock, SELLER shall provide to the
Company written notice that SELLER elects to convert that percentage
of the Receivables as is identified in such notice. Such notice will
also state the name(s) and address(es) in which SELLER wishes the
certificate(s) of Common Stock issuable upon conversion and will
designate an Independent Appraiser to perform the appraisal
contemplated in this Section 4.e. The Independent Appraiser selected
by SELLER shall be instructed to complete the required appraisal of
the receivables within thirty (30) days of his appointment. PURCHASER
and SELLER shall, promptly and without delay, supply all information
necessary to allow the Independent Appraiser to perform the appraisal.
The Present Value of the receivables, as determined by the Independent
Appraiser, shall be final and binding upon PURCHASER and SELLER,
absent manifest error.
Conversion will be deemed to have been effected as of the opening of
business on the day on which the closing with respect to the IPO is
held, and such date is referred to herein as the "IPO Conversion
Date." On the IPO Conversion Date, SELLER shall be entitled to receive
that number of shares of Common Stock as is equal to (a) the Present
Value of the Receivables multiplied by the percentage of the
Receivables being converted, divided by (b) the price per share at
which the Common Stock is being offered to the public in the IPO.
PURCHASER shall issue and deliver to SELLER a certificate or
certificates for the number of full shares of Common Stock to which
SELLER is entitled pursuant to this subsection. The person in whose
name the certificate or certificates for Common Stock are to be issued
shall be deemed to have become a holder of record of the Common Stock
on the IPO Conversion Date. No fractional shares shall be issued upon
conversion of the receivables into Common Stock and the number of
shares of Common Stock shall be rounded to the nearest whole share.
Notwithstanding anything in this Agreement to the contrary, if SELLER
converts any portion of its receivables on the IPO Conversion Date, it
shall not have the right to convert any receivables at any time after
the IPO Conversion Date.
In the event, SELLER converts 100% of the Receivables into Common
Stock, then the Security Interest (as defined below) granted in the
Domain Name pursuant to the Security Agreement (as defined below)
shall terminate.
In the event SELLER converts less than 100% of the Receivables into
Common Stock, then PURCHASER shall have a one-time option to pay to
SELLER, in cash, the difference between the Present Value of the
Receivables converted (i.e., the
5
Present Value of the Receivables multiplied by the percentage of
Receivables being converted) and the Present Value of the Receivables.
If the PURCHASER elects to make such a payment, then upon payment
PURCHASER'S payment obligations under Paragraphs 4c and 4.d. shall be
satisfied in full. In the event PURCHASER does not so elect, and if
the Funded Cap has not been reached on or prior to the IPO Conversion
Date, then the Present Value of the Receivables converted (i.e., the
Present Value of the Receivables multiplied by the percentage of
Receivables being converted) shall be applied first to reduce the
Funded Cap (after reducing the Funded Cap by amounts previously paid
by PURCHASER under Section 4.c. prior to the IPO Conversion Date), and
then shall be applied to reduce the Additional Cap. In the event
PURCHASER does not so elect and the Funded Cap has been reached on or,
prior to the IPO Conversion Date, then the Present Value of the
Receivables converted (i.e., the Present Value of the Receivables
multiplied by the percentage of Receivables being converted), shall be
applied to reduce the Additional Cap.
4.f Any Common Stock received by the SELLER pursuant to this Agreement,
whether at the Closing or subsequent to the Closing shall be included
in the Registration Rights Agreement attached hereto as Exhibit A (the
"Registration Rights Agreement").
4-g PURCHASER hereby grants to SELLER a first priority, and assuming
proper filing by SELLER of a UCC-1 financing statement with the
Secretary of State of Florida, a fully perfected, security interest in
the Domain Name to secure payment of all amounts due to the SELLER
pursuant to Sections 4.a, 4.b, 4.c, 4.d and 4e above (the "Security
Interest") in accordance with the Security Agreement attached hereto
as Exhibit A (the "Security Agreement"). PURCHASER shall reasonably
cooperate with SELLER in preparing and executing necessary
documentation, including financing statements, to evidence and perfect
SELLER's Security Interest On full payment of all amounts due to the
SELLER pursuant to Sections 4.a, 4.b, 4.c, 4.d and 4e above under the
terms of this Agreement the Security Interest shall expire and the
SELLER'S Security Interest shall terminate. Following termination of
the Security Interest SELLER shall have no further interest in or
right to the Domain Name.
In the event that PURCHASER breaches any of its obligations contained
in this Agreement, the Registration Rights Agreement, or the Security
Agreement, then SELLER shall deliver a written notice to PURCHASER
setting forth in reasonable detail the nature of PURCHASER'S breach.
Upon receipt of such notice, PURCHASER shall have sixty (60) days to
cure its breach. If PURCHASER shall fail to cure its breach within
such sixty (60) days period, then, without any further action by any
party hereto PURCHASER shall return to SELLER the Domain Name (and in
connecton therewith, PURCHASER shall execute and deliver to SELLER any
and all documentation reasonably requested by SELLER to effectuate
such return of the Domain Name to SELLER including, without
limitation, a Registrant Name Change Agreement (RNCA)) free and clear
of any and all security interests, liens or other encumbrances or
restrictions of any nature (other than the Security Interest provided
for in this Section 4.g), (collectively, an "Encumbrance,") within
three (3) business days; and (ii) SELLER shall have the right, but not
the obligation, to terminate the executory portions of this Agreement
by delivering an additional written notice to PURCHASER at any time
up until the sixtieth (60th) day after PURCHASER shall have returned
the Domain Name. Notwithstanding any provision contained herein to the
contrary. If PURCHASER fails to return the Domain Name free and clear
of any and all Encumbrances, within the time period specified in (i)
above, and SELLER has to take legal action to enforce the provisions
of this Section 4.g, then PURCHASER'S payment obligations shall be
satisfied hereunder by returning the Domain Name to SELLER, paying
SELLER $100,000 as liquidated damages, and paying the reasonable legal
fees and expenses of SELLER in connection with such legal action. If
PURCHASER complies with this Section 4.g., SELLER shall have no right
to claim
6
any deficiency with respect to amounts owed under this Section 4.
Upon satisfaction of PURCHASER'S payment obligations under this
Section 4, the Security Interest granted pursuant to the Security
Agreement shall terminate.
4.h. Any amounts required to be paid by PURCHASER to SELLER pursuant to
this Agreement shall bear interest from its due date at the rate of
18% per annum for each day that such payment is not made.
5. Marketing Agreement
The marketing, promoting and advertising of xxx.xxxxxxxx.xxx by SELLER via
its Network is valued at Two Million Five Hundred Thousand Dollars
($2,500,000.00) per year. PURCHASER shall pay SELLER on a monthly basis
under the fee schedule set forth below for all loans resulting from the
marketing, promoting and advertising of xxx.xxxxxxxx.xxx by SELLER via its
Network, or any other SELLER controlled site, to xxx.xxxxxxxx.xxx or any
other PURCHASER owned site. Such fees shall not exceed Two Million Five
Hundred Thousand Dollars ($2,500,000.00) during any 12 month period
commencing on the date of closing of this Agreement, and the amounts
payable pursuant to this Section 5 shall expire ten years from the date
hereof.
5.a Two Hundred Seventy Five Dollars ($275.00) per funded first
lien loan which does not conform to both Xxxxxxx Mac and Xxxxxx
Mae credit underwriting guidelines which includes sub prime; and,
5.b Two Hundred Dollars ($200.00) per funded first lien loan
which meets both Xxxxxxx Mac and Xxxxxx Mae underwriting
guidelines; and,
5.c Fifty Dollars ($50.00) per funded second lien Home Equity or
Line of Credit loan.
6. Accounting.
PURCHASER shall keep reasonable, detailed and accurate records in
connection with its respective performance under this Agreement (including
without limitation, records in relation to submitted applications, Server
Logs and revenue calculation), and shall permit SELLER and SELLER'S
representatives access to such records upon reasonable notice.
When PURCHASER shall remit its monthly payments to SELLER, pursuant to
Sections 4.c, 4.d or Section 5 PURCHASER shall provide a schedule detailing
the following information for the subject month;
6.a. unique file identifier code or reference number for each
application;
6.b. the date of each application;
6.c. the total number of submitted applications;
6.d. the method of the application submission (i.e., online, mail
fax, telephone, etc.);
6.e. the total number of funded loans and dates of closing; and,
6.f. each loan will be coded only in one of two ways, either as
sourced from xxxxxx.xxx, or Other.
SELLER or its independent outside accountants, attorneys, or other
representatives shall have the right, at its expense, upon not less than
five (5) business days' written notice and during PURCHASER'S normal
business hours, disrupting as little as possible PURCHASER'S business
operations, to inspect and audit the books and records of PURCHASER
relating to this Agreement, for the purpose of verifying any reports,
information or payments due to SELLER under this Agreement. If such audit
shows that any of PURCHASER'S reports understated the actual amounts due to
SELLER by more than five percent (5%), then PURCHASER shall immediately pay
SELLER the amount determined to be due and all
(iv) Security Interest - The Security Interest constitutes a first
priority, and assuming proper filing by SELLER of a UCC-1 financing
statement with the Secretary of State of Florida. a perfected, Security
Interest in favor of SELLER as further provided in the Security Agreement.
9. Closing.
9.a. Conditions to PURCHASER'S Obligation to Close. The PURCHASER'S
obligations to consummate the transactions contemplated by this
Agreement at the Closing are subject to completion of the following:
9.a.1. Transfer of Domain Name. SELLER shall have delivered to
PURCHASER all documents necessary to cause the Domain Name and the
registration thereof, together with the goodwill of the business
connected with and symbolized by such Domain Name, including the
trademark and the service xxxx "xxxxxxxx.xxx" and any intellectual
property rights relating thereto (to the extent any such trademark,
service xxxx, or intellectual property rights exist) to be
transferred from SELLER to PURCHASER. Such documents shall contain no
omissions and shall be fully executed by authorized officers of
SELLER, such that the only remaining step to be taken by PURCHASER to
accomplish the transfer of the Domain Name and the registration
therefor from SELLER to PURCHASER is the PURCHASER'S filing of such
documents with the appropriate third parties.
9.a.2. Representations, Warranties and Covenants. The obligations of
SELLER required to be performed by SELLER hereunder at or prior to the
date of Closing shall have been performed and complied with in all
material respects, and the representations and warranties of SELLER
set forth in this Agreement shall be true and correct in all respects
as of the date of Closing as though made on and as of the date of
Closing.
9.a.3. Consent to Registration Rights Agreement PURCHASER shall have
received from existing registration rights holders all necessary
consents to the Registration Rights Agreement.
9.b Conditions to SELLER'S Obligation to Close. The SELLER'S obligations
to consummate the transactions contemplated by this Agreement at the
Closing are subject to completion of the following:
9.b.1. Execution and Delivery of Security Agreement and Registration
Rights Agreement PURCHASER shall have executed and delivered to SELLER
the Security Agreement and the UCC-1 financing statements referenced
therein and shall have granted to SELLER a first priority, and
assuming proper filing by SELLER of a UCC-1 financing statements with
the Secretary of State of Florida, a fully perfected, Security
Interest in the Domain Name; and the SELLER shall have executed and
delivered to SELLER the Registration Rights Agreement.
9.b.2 Payment of Purchase Price and Delivery of Shares. The SELLER
shall have received the two hundred thousand dollar payment from
PURCHASER referenced in Section 4b and SELLER shall have received the
20,000 Shares of Common Stock of PURCHASER referenced in Section 4a.
9
9.b.3. Representations, Warranties and Covenants. The obligations of
PURCHASER required to be performed by PURCHASER hereunder at or prior
to the date of Closing shall have been performed and complied with in
all material respects, and the representations and warranties of
PURCHASER set forth in this Agreement shall be true and correct in all
respects as of the date of Closing as though made on and as of the
date of Closing.
9.b.4. Consent to Registration Rights Agreement. PURCHASER shall have
received from existing registration rights holders all necessary
consents to the Registration Rights Agreement.
9.c. Place and Date of Closing. After satisfactory completion of the
enumerated conditions above, the Closing shall take place at the
California offices of the SELLER no earlier than January 4, 1999 nor
later than 5:00 p.m. Eastern time on January 15, 1999. In the event
the Closing does not take place by 5:00 p.m. Eastern time on January
15, 1999, then this Agreement shall terminate and the rights and
obligations of the parties to this Agreement shall be of no further
force and effect provided that no party hereunder shall be relieved of
any breach of this Agreement occurring prior to such termination date.
At Closing, each party shall deliver to the other such payments,
documents, certificates, consents, approvals and waivers that shall be
reasonably necessary to consummate the obligations of the parties
hereunder.
10. Expenses.
Except as specified in the last paragraph of Article 6 and Section 16, each
party to this Agreement shall bear all of his or its expenses incurred in
the performance hereof, regardless of whether the transactions contemplated
herein are consummated.
11. Cooperation.
The parties agree that after Closing they shall provide reasonable
cooperation with respect to the matters that are subject to this Agreement.
12. Confidentiality and Public Relations.
12.a. Each party will not without the consent of the other, disclose the
provisions contained herein to any third parties (other than as may be
required by law, in connection with legal or administrative
proceedings, or to attorneys, accountants, and consultants they may
have retained to represent them in connection herewith), and this
provision shall survive the Closing. There will be no public
announcement of this Agreement except as provided below.
12.b In the initial press release announcing the acquisition of the
xxxxxxxx.xxx URL, PURCHASER shall identify the SELLER as Xxxxxx.Xxx,
L.L.C. and the xxx.xxxxxxxx.xxx website as a Xxxxxx.Xxx Network
affiliate site. Subsequent public relations and advertising related to
xxxxxxxx.xxx shall be strictly under the control and approval of
PURCHASER, as to timing and content, including any announcements
related to this transaction, which is otherwise to be strictly
confidential.
13. Miscellaneous.
13.a Choice of Law. This Agreement shall be construed in accordance with
the laws of the State of Florida.
13.b Venue. The parties agree that all actions or proceedings arising in
connection with this Agreement shall be tried and litigated
exclusively in the federal (if permitted by law and a
10
party elects to file an action in federal court) courts located in the
County of Broward. This choice of venue is intended by the parties to
be mandatory and not permissive in nature, and to preclude the
possibility of litigation between the parties with respect to, or
arising out of, this Agreement in any jurisdiction other than that
specified in this Section. Each party waives any right it may have to
assert the doctrine of forum non-conveniens or similar doctrine or to
object to venue with respect to any proceeding brought in accordance
with this Secton.
13.c Indemnity. Each party hereto will indemnify, defend and hold harmless
the other party hereto from and against losses incurred through claims
of third persons or arising from breach by any party hereto of such
party's representafions, warranties or covenants, contained in this
Agreement.
13.d Agreement Drafted By All Parties. This Agreement is the result of
arm's length negotiations between the parties and shall be construed
to have been drafted by all parties such that any ambiguities in this
Agreement shall not be construed against either party.
13.e Section Headings. The section headings contained herein are for
convenience in reference and are not intended to define or limit the
scope of any provision of this Agreement.
13.f Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and will
become effective and binding upon the parties as of the execution date
at such time as all the signatories hereto have signed a counterpart
of this Agreement.
13.g Notices.
13.g.1 Any notices required or permitted to be given hereunder by
either party to the other shall be given in writing: (1) by personal
delivery; (2) by electronic facsimile with confirmation sent by United
States first class registered or certified mail, postage prepaid
return receipt requested; (3) by bonded courier or by a nationally
recognized overnight delivery company; or (4) by United States first
class registered or certified mail, postage prepaid, return receipt
requested, in each case, addressed to the parties as follows (or to
such other addresses as the parties may request in writing by notice
given pursuant to this section):
TO: PURCHASER
Xxxx Xxxxxx, Chairman & CEO
First Mortgage Network Inc.
0000 Xxxxxxx Xxxxxxxxx - Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
And
TO: SELLER
Xxxx Xxxxx, Chairman & CEO
Xxxxxx.Xxx, L.L.C.
00 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
13.g.2 Notices shall be deemed received on the earliest of personal
delivery, upon delivery by electronic facsimile with confirmation from
the transmitting machine that the transmission was completed,
twenty-four (24) hours following deposit with a bonded
11
courier or overnight delivery company; or seventy-two (72) hours
following deposit in the U.S. Mail as required herein.
14. Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter of this Agreement, and it
supersedes all other prior and contemporary agreements, understandings, and
commitments between the parties with respect to the subject matter of this
Agreement
15. Successors and Assigns. This Agreement is binding on and shall inure to the
benefit of the respective successors and/or assigns of the parties.
16. Attorney's Fees. In the event either party files suit to enforce any of the
terms hereof, the prevailing party shall be entitled to an award of all
reasonable attorney's fees and court costs.
17. Signatures.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the dates written below:
First Mortgage Network, Inc.
/s/ Xxxx X. Xxxxx 12/24/98
--------------------------------------------------- ----------
Xxxx X. Xxxxx, Executive Vice President Date
Xxxxxx.Xxx, L.L.C.
/s/ Xxxx Xxxxxxx 1-6-99
--------------------------------------------------- ----------
Xxxx Xxxxxxx, President and Chief Operating Officer Date
12
