EXHIBIT 4.02.1
SECOND AMENDED AND RESTATED
NETSELECT, INC. STOCKHOLDERS' AGREEMENT
This Second Amended and Restated NetSelect Stockholders' Agreement (this
"Agreement") is made as of January 28, 1999, by and among NetSelect, Inc., a
Delaware corporation (the "PreMerger NetSelect"), InfoTouch Corporation, a
Delaware corporation (the "Company"), CDW Internet, L.L.C., a Delaware limited
liability company ("CDW Internet"), the National Association of Home Builders, a
Nevada not for profit corporation (the "NAHB"), Whitney Equity Partners, L.P., a
Delaware limited partnership ("Whitney"), ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇"),
Ingleside Interests, a California limited partnership ("Ingleside"), Geocapital
IV, L.P., a Delaware limited partnership ("Geocapital"), Broadview Partners
Group ("Broadview"), General Electric Capital Corporation, a New York
corporation ("GE Capital"), the National Association of Realtors, an Illinois
not for profit corporation ("NAR"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII, L.P.,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Founders Fund VIII, L.P. and KPCB Information
Sciences Zaibatsu Fund II, L.P. (collectively, the "KP Entities"), Intuit, Inc.,
a Delaware corporation, ▇▇▇▇▇▇ Mae, a corporation formed under the laws of the
United States ("▇▇▇▇▇▇ ▇▇▇"), ▇▇▇ Interactive Media, Inc., a Delaware
corporation ("Cox"), UBS Capital II, LLC, a Delaware limited liability company,
▇▇▇▇ ▇▇▇▇▇, R. ▇▇▇▇ ▇▇▇▇▇ III, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partners III, L.P., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Venture Investors III, L.P., The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partners
Entrepreneurs Fund III, L.P. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Equity Funding, Inc.
(collectively, the "MS Entities") and the persons and entities who were
stockholders of the Company before the closing of the InfoTouch Merger (defined
below), listed on Exhibit A hereto (the "InfoTouch Stockholders"). All of the
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parties hereto, other than the Company and Pre-Merger NetSelect, together with
any persons or entities hereafter becoming a party to this Agreement as provided
herein, are collectively referred to herein as the "Stockholders."
WHEREAS, the Company and certain Stockholders have entered into that
certain Amended and Restated NetSelect Stockholders Agreement dated August 21,
1998, as amended by that certain Amendment to Amended and Restated NetSelect
Stockholders' Agreement dated as of October 22, 1998, which amended and restated
the NetSelect Stockholders' Agreement dated as of November 26, 1996, as amended
(such agreement as amended, the "Prior Stockholders' Agreement") and in
connection with the merger of PreMerger NetSelect with and into the Company,
with the Company as the surviving corporation and being renamed as "NetSelect,
Inc.," pursuant to the terms of that certain Agreement and Plan of Merger (the
"Merger Agreement") by and between PreMerger NetSelect and the Company (the
"InfoTouch Merger"), the parties thereto desire to amend and restate the Prior
Stockholders' Agreement as set forth herein and consent to the addition of the
InfoTouch Stockholders that were not parties to the Prior Stockholders'
Agreement, all conditioned upon and effective as of the Effective Time (as such
term is defined in the Merger Agreement) of the InfoTouch Merger.
WHEREAS, the execution and delivery of this Agreement is a condition to the
effectiveness of the InfoTouch Merger.
WHEREAS, the Stockholders, immediately after the effective time of the
InfoTouch Merger (assuming the completion of the Company's repurchase of the
certain of the Shares pursuant to the Redemption (as such term is defined in
Section 2(a)(ii) below)), will hold an aggregate of approximately 3,550,448
shares of the Company's Common Stock, 1,647,059 shares of its Series A
Convertible Preferred Stock, 352,941 shares of its Series B Convertible
Preferred Stock, 614,374 shares of its Series C Convertible Preferred Stock,
681,201 shares of its Series D Convertible Preferred Stock, 315,250 shares of
its Series E Convertible Preferred Stock and 1,664,049 shares of its Series F
Convertible Preferred Stock (collectively, the "Shares").
WHEREAS, the Stockholders know of, and are familiar with, the business,
affairs, financial condition, current status and future prospects of PreMerger
NetSelect and the Company, except for certain agreements entered into by the
Company and/or PreMerger NetSelect which they consider confidential and which
the Company and PreMerger NetSelect claim will have no adverse effect on any of
the stockholders.
WHEREAS, the Stockholders desire to promote their mutual interest and the
interest of the Company by imposing certain restrictions and obligations on
themselves, the Company and the shares of capital stock of the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS OF THE CORPORATION
The Company hereby represents and warrants that:
Section 1.1 Organization. The Company is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Delaware.
The Company has all required right, power and authority to carry on its business
as now conducted and as proposed to be conducted, to enter into and perform this
Agreement, and to carry out the matters contemplated hereby.
Section 1.2 Capitalization. As of immediately after the Effective Time of
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the InfoTouch Merger (assuming the completion of the Company's repurchase of
certain of the Shares pursuant to the Redemption), the authorized capital stock
of the Company will consist of: (i) 45,000,000 shares of Common Stock, par value
$0.001 per share, of which 3,906,718 shares are issued and outstanding; and (ii)
10,000,000 shares of Preferred Stock, par value $0.001 per share, of which
1,647,059 shares have been designated as Series A Convertible Preferred Stock,
of which 1,378,000 are outstanding, 352,941 shares have been designated as
Series B Convertible Preferred Stock, of which 190,336 are outstanding, 614,374
shares have been designated and issued as Series C Convertible Preferred Stock,
681,201 shares have been designated and issued as Series D Convertible Preferred
Stock, 325,000 shares have been
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designated and issued as Series E Convertible Preferred Stock and 2,100,000
shares have been designated as Series F Convertible Preferred Stock, of which
1,664,049 shares have been issued. Stock options to purchase an aggregate of
1,254,962 shares of the Company's Common Stock are also outstanding as of the
date of this Agreement immediately after the Effective Time of the InfoTouch
Merger. Warrants, convertible securities, agreements and other rights to acquire
or purchase 638,717 shares of Company capital stock are outstanding as of the
date of this Agreement immediately after the Effective Time of the InfoTouch
Merger (which includes the MLS agreements described below). The Company, as the
successor to Pre-Merger NetSelect, and RealSelect, Inc., a Delaware corporation
("RealSelect") intends to enter into Broker Gold Program Agreements and related
agreements pursuant to which the Company may enter into arrangements with
approximately 100 real estate brokers concerning, among other things, providing
listings to RealSelect. Pursuant to the Broker Gold Program Agreements, the
Company may sell to each broker an investment unit at a purchase price expected
to be $40,000 that is comprised of shares of Series F Convertible Preferred
Stock and shares of Common Stock (in amounts determined pursuant to the Broker
Gold Program Agreements). In addition, as part of such transaction, the Company
would agree to issue to participating brokers warrants to purchase shares of
Common Stock. The Company, as the successor to Pre-Merger NetSelect, has entered
into and may continue to enter into agreements with individual real estate
multi-listing services (each, an "MLS") pursuant to which the MLS would agree to
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provide real estate listing information for display on the Internet exclusively
to the Company (subject to certain conditions) in exchange for warrants to
purchase up to 289,145 shares of Common Stock.
Section 1.3 Authority. The execution, delivery and performance of this
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Agreement have been duly authorized by all requisite action by the Company. This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms except that (i) such enforcement may be
subject to applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors' rights generally and (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
Section 1.4 No Violation. The execution, delivery and performance of this
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Agreement by the Company and the consummation of the transactions contemplated
hereby do not and will not (i) constitute a violation of, conflict with or
constitute a default under, any term or provision of the Company's Certificate
of Incorporation or Bylaws, each as amended to date, or any agreement to which
the Company is a party or by which its assets or properties are bound or (ii)
constitute or result in a violation of any statute, ordinance or regulation
applicable to the Company.
ARTICLE II
MANAGEMENT AND VOTING
Section 2.1 Election of Directors.
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(a) The Stockholders, one with the other, hereby agree, that they
shall during the term of this Agreement each vote their respective Shares at all
meetings of the stockholders of the Company, or by written consent in lieu
thereof, to:
(i) cause the authorized number of Directors of the Company to
be fixed at the number of directors who are entitled to be nominees pursuant to
Section 2.1(a)(ii) below; and
(ii) except as set forth in the next sentence, cause at all times
that the following nominees shall be elected to the Board of Directors of the
Company: (1) one nominee designated by CDW Internet and such nominee shall be
▇▇▇▇▇▇ ▇▇▇▇▇, (2) one nominee designated by Whitney, (3) one nominee designated
by the InfoTouch Stockholders (such nominee to be determined by a vote of the
majority of the Shares held by the InfoTouch Stockholders), (4) one nominee
designated by GE Capital, except and to the extent of a Default as defined in
that certain Stock Purchase Agreement dated as of December 31, 1997 between the
Company and GE Capital (the "GE Capital Agreement"), in which case two nominees
designated by GE Capital in accordance with Section 4.11 of the GE Capital
Agreement, (5) one nominee designated by the KP Entities (which nominee shall be
▇▇▇▇ ▇▇▇▇▇ for so long as ▇▇. ▇▇▇▇▇ shall represent an affiliate of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ on the Board of Directors, or its equivalent, of any
other company), (6) one nominee by the NAHB (which nominee shall be ▇▇▇ ▇▇▇▇▇ or
such other nominee as is mutually acceptable to the NAHB and a majority of the
members of the Board), (7) one nominee designated by ▇▇▇▇▇▇ ▇▇▇ (which nominee
shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or such other nominee as is mutually acceptable to
▇▇▇▇▇▇ ▇▇▇ and a majority of the members of the Board) and (8) one nominee
designated by the NAR. The Stockholders shall not take, or support the taking
of, any action to remove a Director nominated by a particular person, entity or
group unless such person, entity or group has requested that such Director be so
removed (in which case the Stockholders shall cooperate in effecting such
removal and electing a replacement). Notwithstanding anything to the contrary
herein, except as otherwise provided in Section 2.1(c) hereof, in no event shall
the InfoTouch Stockholders involuntarily surrender their collective right to
designate that number of nominees as set forth in this Section prior to the
consummation of a Qualified Public Offering (as defined in Section 4.9 hereto),
and the right of the NAR to designate a nominee to the Board of Directors of the
Company pursuant to this section shall (A) cease upon the termination of that
certain Operating Agreement, dated as of November 26, 1996, between Realtors
Information Network, Inc. and RealSelect, Inc. (the "Operating Agreement"), (B)
be suspended upon the occurrence of, and during the continuance of, the breach
by the NAR of that certain (i) Joint Ownership Agreement, dated as of November
26, 1996, among the NAR, PreMerger NetSelect and NetSelect, L.L.C., or (ii)
Trademark License, dated as of November 26, 1996, by and between the NAR and
PreMerger NetSelect, (C) be suspended upon the occurrence of, and during the
continuance of, the Transfer by NAR of eighty percent (80%) or more of the
shares of common stock, par value $0.001 per share (the "RealSelect Shares"), of
RealSelect owned by NAR as of the consummation of that certain Stock Transfer
and Rights Assignment Agreement dated February 9, 1998 (the "Transfer Date");
provided, however, that in the event that NAR shall transfer greater than eighty
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percent (80%) of the RealSelect Shares owned by NAR as of the Transfer Date, and
NAR shall not, within forty-five (45) days from the date of such Transfer,
increase its ownership in RealSelect Shares so that NAR shall own at least
twenty percent (20%) of the RealSelect Shares owned by
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NAR immediately prior to the Transfer Date, NAR's right to designate a nominee
to the Board of Directors of the Company pursuant to this Section 2.1(a)(ii)
shall terminate. In addition, notwithstanding anything herein to the contrary,
if the NAHB does not agree by January 31, 1999 to extend certain existing
exclusivity provisions contained in that certain Operating Agreement dated June
__, 1998 in perpetuity (subject to certain conditions contained in such
Operating Agreement) no nominee shall be designated pursuant to subclause (7) of
this clause (ii).
(b) In the event that a Director of the Company shall vacate the Board
of Directors of the Company, whether by resignation, retirement, removal, death,
disability or otherwise, such vacancy shall be filled by a person designated
within thirty (30) days of such vacancy by that person, entity or group
specified in Section 2.1(a) hereof that designated such departing Director as a
nominee to the Board. In the event that such person, entity or group shall not
designate a nominee within thirty (30) days of such vacancy, then a majority of
the remaining Directors may appoint a Director to fill such vacancy; provided,
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however, if the person, entity or group entitled to designate a nominee shall
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thereafter so designate, the Stockholders shall call a special meeting of the
Stockholders for the purpose of removing any person elected by the Board of
Directors, and use their respective best efforts to elect such nominee.
(c) In the event that any of the persons, entities or groups specified
in Section 2.1(a) hereof shall sell, assign, transfer or otherwise convey
("Transfer") their respective Shares, other than to Permitted Transferees (as
defined below), such persons', entities' or groups' right to designate nominees
to the Board of Directors of the Company pursuant to Section 2.1(a) hereof shall
be reduced as follows:
In the event that any Stockholder or Stockholders (except for the
InfoTouch Stockholders, whom are addressed in the next paragraph) that
have a right to designate one or more nominees pursuant to Section
2.1(a) shall hold less than one-half (1/2) of the Shares held by such
Stockholder or Stockholders immediately after the Effective Time of
the InfoTouch Merger, then such Stockholder or Stockholders shall
forfeit its or their right to designate its respective nominee or
nominees to the Board of Directors of the Company and any Transferee
(as defined in Section 3.1) of such Shares shall acquire such right;
provided, however, that in the event that any entity to the extent
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that such entity or entities have forfeited a nominee or nominees to
the Board of Directors of the Company pursuant to this paragraph shall
increase its ownership in Shares so that such entity or entities shall
hold a number of Shares exceeding the forfeiture threshold as referred
to above, then such entity or entities shall be permitted to designate
that number of nominees as it or they had the right to nominate prior
to falling below such forfeiture threshold.
In the event that the InfoTouch Stockholders shall hold less than one-
half (1/2) of the Shares held by such InfoTouch Stockholders holders
immediately after the Effective Time of the InfoTouch Merger (less any
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Shares repurchased by the Company in the Redemption), then the
InfoTouch Stockholders shall forfeit their right to designate their
nominee to the Board of Directors of the Company and any Transferee
(as defined in Section 3.1) of the majority of such securities shall
acquire such right; provided, however, that in the event that the
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InfoTouch Stockholders, to the extent that such holders have forfeited
their nominee to the Board of Directors of the Company pursuant to
this paragraph and such holders shall increase their ownership in
shares of capital stock in the Company so that such holders hold a
number of such securities exceeding the forfeiture threshold as
referred to above, then such holders shall be permitted to designate a
nominee.
(d) Geocapital, ▇▇▇ and ▇▇▇▇▇ & Co. shall each have the right to
appoint an observer to the Board of the Company for so long as such respective
entity shall be the owner of shares of the Company's Preferred Stock. Each such
observer shall have the rights of a Director with respect to the Board of
Directors on any action it shall take other than voting or approval rights
(whether in person or by written consent) with respect to any matter coming
before the Board of Directors (including, without limitation, the right to
receive copies of all documents (including, without limitation, notices of
meetings and requests for written consents) at the same time that members of the
Board of Directors receive such documents). The Company agrees to pay all
reasonable travel costs incurred by each such observer for the purpose of
attending and observing the Board of Directors meetings of the Company and
conducting such business as shall be directed by the Board of Directors.
(e) The Company shall cause to be created a Compensation Committee
("Compensation Committee") that will be responsible for establishing
compensation for the Company's executive officers, approving stock option grants
and other matters that are customarily within the responsibilities of a
compensation committee of a company similarly situated as the Company. The
compensation for the Chief Executive Officer, the Chief Financial Officer and
the President of the Company shall be at a reasonable amount (industry
standard); provided, however, that in the event a dispute shall arise as to the
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amount of such compensation, the amount of such compensation shall be determined
by the Compensation Committee. The Compensation Committee shall consist of the
Chief Executive Officer or President (ex-officio) and at least two Directors, of
which one shall be the nominee of the KP Entities. Any and all determinations
made by the Compensation Committee pursuant to this Section 2.1(e) shall be
final and binding.
ARTICLE III
TRANSFERS OF SHARES
Section 3.1 Right of First Offer; Transfer.
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(a) If at any time after the Effective Time of the InfoTouch Merger a
Stockholder desires to Transfer (the "Transferring Stockholder") any of the
outstanding Shares of
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the Company to a bona fide third-party (the "Transferee"), other than to the
Company or a Permitted Transferee, it shall promptly deliver a notice (the
"Transfer Notice") to the non-Transferring Stockholders (the "Non-Transferring
Stockholders") and the Company setting forth the terms and conditions of such
Transfer, including the price and number of Shares proposed to be Transferred.
The Transfer Notice shall constitute an offer by the Transferring Stockholder to
Transfer the Shares subject to the Transfer (the "Transfer Shares") to the Non-
Transferring Stockholders on the terms and conditions set forth in the Transfer
Notice.
(b) The Non-Transferring Stockholders and the Company shall have the
right, exercisable by written notice (the "Purchase Notice"), to the
Transferring Stockholder and the Company not later than thirty (30) days
following their receipt of the Transfer Notice, to purchase all, but not less
than all, of their portion of the Transfer Shares on the same terms and
conditions pursuant to this Section 3.1.
(c) Each Non-Transferring Stockholder shall have the right to purchase
up to that portion of the Transfer Shares that bears the same ratio to the total
number of Transfer Shares as the number of Shares owned by such Non-Transferring
Stockholder bears to the total number of Shares owned by all of the Non-
Transferring Stockholders. For purposes of calculations pursuant to this Section
3.1, it shall be assumed that all Shares convertible into Common Stock have been
so converted.
(d) In the event that any of the Non-Transferring Stockholders are
unable or unwilling to buy all of the Transfer Shares allocated to it pursuant
to Section 3.1(c) hereof within the thirty (30) day period set forth in Section
3.1(b) hereof, the other Non-Transferring Stockholders shall each have the right
to purchase their pro rata share thereof for a period of ten (10) days. If the
Non-Transferring Stockholders are unable or unwilling to buy all, but not less
than all, of the Transfer Shares, then the Company shall have the right to buy
any Transfer Shares not purchased by the Non-Transferring Stockholders.
(e) Each Non-Transferring Stockholder shall notify each other Non-
Transferring Stockholder and the Company of its decision whether to purchase its
allotted portion of the Transfer Shares within thirty (30) days of receipt of
the Transfer Notice. A failure to notify the other Non-Transferring Stockholders
and the Company shall be deemed an election not to purchase the allotted portion
of the Transfer Shares. Such notice may be the same notice as the Purchase
Notice referred to in Section 3.1(b).
(f) If the Non-Transferring Stockholders and the Company do not elect
to purchase all of the Shares offered for Transfer pursuant to this Section 3.1,
the Transferring Stockholder shall be free to Transfer any such remaining Shares
pursuant to this Section 3.1 to one or more Transferees on the same terms and
conditions set forth in the Transfer Notice or for greater consideration than
that set forth in the Transfer Notice at any time within one hundred (100) days
of the delivery to the Non-Transferring Stockholders of the Transfer Notice;
provided, however, that if any of such Shares are thereafter acquired by any
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Stockholder who is a party to this Agreement, such Shares shall continue to be
subject to all the provisions hereof; provided, further, however, that if any of
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such Shares are proposed to be Transferred to a person or entity
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who is not a party to this Agreement, such proposed Transferee shall have
executed and delivered to the Company and each Stockholder an agreement, in form
and substance reasonably satisfactory to the Company and Stockholders holding a
majority of the shares of the Company's capital stock held by all Stockholders
(on an as-converted basis), to be bound by the terms and provisions of this
Agreement.
(g) A "Permitted Transferee" shall mean, with respect to a
Stockholder:
(i) the spouse of such Stockholder, any lineal descendant of a
grandparent of such Stockholder, or of the spouse of such Stockholder, and any
spouse of such lineal descendant (which lineal descendants, their spouses, the
Stockholder, and his or her spouse are herein collectively referred to as the
"Stockholder's Family Members");
(ii) the trustee of a trust (including a voting trust)
principally for the benefit of such Stockholder's Family Members; provided, that
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such trust may also grant a general or special power of appointment to one or
more of such Stockholder's Family Members and may permit trust assets to be used
to pay taxes, legacies and other obligations of the trust or of the estates of
one or more of such Stockholder's Family Members payable by reason of the death
of any of such Stockholder's Family Members;
(iii) in the case of a partnership or limited liability company,
(A) such partnership's partners (limited or general) or limited liability
company's members, (B) the estates or legal representatives of any such limited
partners, general partners or members and (C) any affiliates of such partnership
or limited liability company; and
(iv) in the case of a corporation, (A) any of its wholly-owned
subsidiaries, (B) any stockholder of such corporation or (C) any of the
affiliates of such corporation.
Every Permitted Transferee to whom any Shares are Transferred, shall,
as a condition of such Transfer, execute and deliver to the Company and each
Stockholder an agreement, in form and substance reasonably satisfactory to the
Company and the Stockholders, to be bound by this Agreement.
Section 3.2 Right of First Offer; Issuance of Securities.
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(a) In the event that, after the Effective Time of the InfoTouch
Merger, the Company shall, in any single issuance, propose to issue additional
equity securities of the Company (the "Securities") representing in excess of
ten percent (10%) of the issued and outstanding shares of capital stock of the
Company (on a fully diluted and converted basis) (other than securities issued
pursuant to employee benefit plans, options or warrants outstanding as of the
date hereof, securities issued with respect to the conversion of Shares, options
issued after the date hereof pursuant to grants by the Board under stock option
plans approved by the Board, and securities issued in connection with the
acquisition of businesses or securities issued pursuant to a Qualified Public
Offering) for a consideration per share equal to or greater than (v) in the case
of the Series A Preferred Stock, $2.83; (w) in the case of the Series B
Preferred Stock, $6.19; (x)
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in the case of the Series C Preferred Stock, $7.32; (y) in the case of the
Series D Preferred Stock, $14.67 and (z) in the case of the Series F Preferred
Stock, $24.00, the Company shall promptly deliver a notice (the "Issuance
Notice") to the holders of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series F Preferred Stock,
as the case may be, setting forth the terms and conditions of such proposed
issuance, and the holders of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series F Preferred
stock, as the case may be, shall have the right to purchase those Securities
described in the Issuance Notice; provided, however, that in the event that the
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Company shall issue in any consecutive twelve-month period (after the Effective
Time of the InfoTouch Merger) in a series of issuances shares in excess of 10%
(ten percent) of the issued and outstanding shares of Common Stock of the
Company (on a fully diluted and converted basis) (other than securities issued
pursuant to employee benefit plans, options or warrants outstanding as of the
date hereof, securities issued with respect to conversion of Shares, options
issued after the date hereof pursuant to grants by the Board under stock option
plans approved by the Board, securities issued in connection with the
acquisition of businesses or securities issued pursuant to a Qualified Public
Offering) for a weighted-average consideration per security equal to or greater
than (v) in the case of the Series A Preferred Stock, $2.83; (w) in the case of
the Series B Preferred Stock, $6.19; (x) in the case of the Series C Preferred
Stock, $7.32; (y) in the case of the Series D Preferred Stock, $14.67, and (z)
in the case of the Series F Preferred Stock, $24.00, the holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series F Preferred Stock, as the case may be, shall have the
right to purchase those Securities in the last proposed issuance by the Company
that shall cause the Company to issue in excess of such 10% (ten percent) of the
issued and outstanding shares of Common Stock of the Company (on a fully diluted
and converted basis). The Issuance Notice shall constitute an offer by the
Company to issue the Securities subject to the issuance (the "Issuance
Securities") to such Stockholders on the terms and conditions set forth in the
Issuance Notice. All dollar amounts contained in this Section 3.2(a) shall be
adjusted for stock splits, stock dividends, recapitalizations and the like.
(b) In the event that the Company shall after the Effective Time of
the InfoTouch Merger propose to issue additional Securities (other than
Securities issued pursuant to employee benefit plans) for a consideration per
Security less than (v) in the case of the Series A Preferred Stock, $2.83; (w)
in the case of the Series B Preferred Stock, $6.19; (x) in the case of the
Series C Preferred Stock, $7.32; (y) in the case of the Series D Preferred
Stock, $14.67 and (z) in the case of the Series F Preferred Stock, $24.00, the
Company shall first offer to the holders of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series F
Preferred Stock (collectively, the "Subject Preferred Shares"), depending upon
the consideration per security, a pro rata share of the securities proposed to
be issued (based on the Common Stock equivalent of such holder's shares versus
the Common Stock equivalent of the shares held by all holders entitled to
receive notice). The Company shall promptly deliver an Issuance Notice to the
holders of the Subject Preferred Shares setting forth the terms and conditions
of such proposed issuance. The Issuance Notice shall constitute an offer by the
Company to issue the securities subject to the issuance also (the "Issuance
Securities") to such Stockholders on the terms and conditions set forth in the
Issuance Notice. All dollar
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amounts in this Section 3.2(b) are subject to adjustment for stock splits, stock
dividends, recapitalizations and the like.
(c) The Stockholders who shall have received such Issuance Notice
shall have the right, exercisable by written notice (the "Response Notice"), to
the Company not later than fifteen (15) days following their receipt of the
Issuance Notice, to purchase all of the Issuance Securities on the same terms
and conditions, as set forth in the Issuance Notice.
(d) Each Stockholder who shall have received such Issuance Notice
shall have the right to purchase up to that portion of the Issuance Securities
that bears the same ratio to the number of Issuance Securities being issued as
the number of shares of Common Stock into which the Subject Preferred Shares
owned by the Stockholder are convertible bears to the total number of shares of
Common Stock into which the Subject Preferred Shares owned by all of the
Stockholders are convertible on such date who shall have received such Issuance
Notice. For purposes of calculations pursuant to this Section 3.2, it shall be
assumed that all Shares convertible into Common Stock have been so converted.
(e) In the event that any of the Stockholders who shall have received
such Issuance Notice are unable or unwilling to buy all of the Issuance
Securities allocated to it pursuant to Section 3.2(d) hereof, the other
Stockholders who shall have received such Issuance Notice shall each have the
right to purchase their pro rata share thereof for a period of ten (10) days.
--- ----
(f) If the Stockholders who shall have received such Issuance Notice
do not elect to purchase all of the Issuance Securities, the Company shall be
free to issue such Securities on the same terms and conditions set forth in such
Issuance Notice or for greater consideration than that set forth in the Issuance
Notice at any time within one hundred (100) days of the delivery to the
Stockholders of such Issuance Notice; provided, however, that if any of such
-------- -------
Issuance Securities are thereafter acquired by any Stockholder who is a party to
this Agreement, such Issuance Securities shall thereafter be subject to all the
provisions of this Agreement; provided, further, however, that if any of the
-------- ------- -------
Issuance Securities are proposed to be issued to a person, entity or group who
is not a party to this Agreement, such person, entity or group shall have
executed and delivered to the Company and each Stockholder an agreement, in form
and substance reasonably satisfactory to the Company and the Stockholders, to be
bound by the terms and provisions of this Agreement.
Section 3.3 NAR Restriction on Transfer.
---------------------------
(a) In connection with any proposed Transfer after the Effective Time
of the InfoTouch Merger, other than a Transfer occurring in connection with the
Redemption and other than to a Stockholder or Permitted Transferee hereunder,
that would result in such Transferee becoming the owner, whether of record or
beneficially, of more than five percent (5%) of the shares of outstanding
capital stock of the Company (on an as-converted basis), the Transferring
Stockholder shall first obtain the written approval of NAR, which approval shall
not be unreasonably withheld. In seeking such approval, the Transferring
Stockholder must identify the proposed Transferee and the number of Shares
proposed to be Transferred, and provide such
10
additional publicly available information regarding the proposed Transferee
available to the Transferring Stockholder as NAR may reasonably request. Any
decision by NAR pursuant to this Section 3.3, whether to approve or not approve
such Transfer, shall be set forth in writing and shall set forth in reasonable
detail the basis of such decision; provided, however, that in the event NAR
-------- -------
shall fail to approve or not approve such Transfer within thirty (30) days after
the date of receipt of such request, NAR shall be deemed to have approved such
Transfer.
(b) Prior to making any proposed Transfer hereunder after the
Effective Time of the InfoTouch Merger that would result in the ownership of
Shares, whether of record or beneficially, by a Transferee whose primary
business is "real estate related", the Transferring Stockholder shall first
obtain the written approval of NAR, which approval shall not be unreasonably
withheld. Any decision by NAR pursuant to this Section 3.3, whether to approve
or not approve such Transfer, shall be set forth in writing and shall set forth
in reasonable detail the basis of such decision. In seeking such approval, the
Transferring Stockholder must identify the proposed Transferee and the number of
Shares proposed to be Transferred, and provide such additional publicly
available information regarding the proposed Transferee available to the
Transferring Stockholder as NAR may reasonably request. For purposes of this
Agreement, "real estate related" shall mean real estate brokerage, real estate
management, mortgage financing, appraising, counseling, land development and
building, title insurance, escrow services, franchising, operation of an
association comprised of real estate licensees, operation of a multiple listing
service, and entities that own or are owned by firms engaged in any of the
foregoing.
(c) The Company shall not sell, lease or exchange all or substantially
all of the assets of the Company without the prior written consent of NAR, which
consent shall not be unreasonably withheld.
(d) The rights granted to NAR in this Section 3.3 shall cease, or be
suspended, to the extent that the NAR's right to designate nominees to the Board
of Directors of the Company ceases or is suspended as provided in Section
2.1(a)(ii) hereof.
ARTICLE IV
REGISTRATION UNDER SECURITIES ACT.
Section 4.1 Registration on Request.
-----------------------
(a) Request. Subject to Section 4.8 hereof, at any time from the date
-------
that is six months following the date that the Company effected an initial
public offering of shares of Common Stock under the Securities Act of 1933, as
amended (the "Securities Act"), Stockholders holding at least 10% of the
Registrable Securities then outstanding (other than GE Capital and the KP
Entities, for which such percentage limitation shall not apply) shall have the
right to require the Company to file a registration statement under the
Securities Act covering all or part of its Registrable Securities, by delivering
a written request therefor to the Company specifying the number of Registrable
Securities to be included in such registration by such
11
Initiating Holders and the intended method of distribution thereof, whereupon
the Company shall, within ten (10) business days of the receipt of such written
request, give written notice of such request (the "Request Notice") to all
Stockholders, and effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities that Stockholders request to be
registered and included in such registration by written notice given by such
Stockholders to the Company within twenty (20) days after receipt of the Request
Notice, subject to the limitations of this Section 4.
(b) Registration of Other Securities. Whenever the Company shall
--------------------------------
effect a registration pursuant to this Section 4.1 in connection with an
underwritten offering by the Initiating Holders, no securities other than
Registrable Securities shall be included among the securities covered by such
registration unless (a) the managing underwriter of such offering shall have
advised the Initiating Holders in writing that the inclusion of such other
securities would not adversely affect such offering or (b) the Initiating
Holders shall have consented in writing to the inclusion of such other
securities.
(c) Registration Statement Form. Registrations under this Section 4.1
---------------------------
shall be on such appropriate registration form of the Commission as shall be
selected by the Company.
(d) Expenses. The Company will pay the Registration Expenses in
--------
connection with the first two registrations on Form S-1 or any successor form
requested pursuant to this Section 4.1 and, in addition, the first two (2)
registrations per year on Form S-3 or any successor form requested pursuant to
this Section 4.1.
(e) Effective Registration Statement. A registration requested
--------------------------------
pursuant to this Section 4.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective, (ii)
if after it has become effective, such registration is interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court and has not thereafter become effective or (iii) if
the conditions to closing specified in the underwriting agreement, if any,
entered into in connection with such registration are not satisfied or waived.
(f) Selection of Underwriters. The underwriter or underwriters of each
-------------------------
underwritten offering of the Registrable Securities so to be registered shall be
selected by the Company (which underwriter shall be acceptable to the Initiating
Holders).
(g) Limitations on Registration on Request. Notwithstanding anything
--------------------------------------
in this Section 4.1 to the contrary, in no event will the Company be required to
effect, pursuant to this Section 4.1, more than four registrations during the
term of this Agreement (two of which shall be exercisable only by GE Capital)
unless the Company is eligible at the time of a request for registration
pursuant to this Section 4.1 to use Form S-3 or any successor form, in which
event there shall be no limit to the number of registrations which may be
requested by the Initiating Holders pursuant to this Section 4.1 (provided that
the anticipated aggregate offering price in each such registration on Form S-3
will exceed $1,000,000).
Section 4.2 Incidental Registration.
-----------------------
12
(a) Right to Include Registrable Securities. If the Company proposes
---------------------------------------
at any time to register any of its securities under the Securities Act by
registration on Forms ▇-▇, ▇-▇ or S-3 or any successor or similar form(s)
(except registrations on such Forms or similar form(s) solely for registration
of securities in connection with an employee benefit plan or dividend
reinvestment plan or a merger, reorganization, or consolidation), whether or not
for sale for its own account, it will, subject to Section 4.8 hereof, each such
time give prompt written notice to the Stockholders of its intention to do so
and of the Stockholders' rights under this Section 4.2. Upon the written request
of any Stockholder made as promptly as practicable and in any event within 20
days after the receipt of any such notice (10 days if the Company states in such
written notice or gives telephonic notice to such Stockholder, with written
confirmation to follow promptly thereafter, that (i) such registration will be
on Form S-3 and (ii) such shorter period of time is required because of a
planned filing date), the Company will, subject to Section 4.8 hereof, use its
best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
such Stockholder; provided, however, that if, at any time after giving written
-------- -------
notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to such Stockholder and (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
any obligation of the Company to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of such Stockholder to
request that such registration be effected as a registration under Section 4.1
and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities, for the same period as the
delay in registering such other securities. No registration effected under this
Section 4.2 shall relieve the Company of its obligation to effect any
registration upon request under Section 4.1. The Company will pay all
Registration Expenses in connection with registration of Registrable Securities
requested pursuant to this Section 4.2.
(b) Priority in Incidental Registrations. If the managing underwriter
------------------------------------
of any underwritten offering shall inform the Company (or, in the case of a
secondary offering, the selling stockholders initiating such offering) of its
belief that the number or type of Registrable Securities requested to be
included in such registration would materially adversely affect such offering,
then the Company will include in such registration, to the extent of the number
and type which the Company is (or the selling stockholders initiating such
offering are) so advised can be sold in (or during the time of) such offering,
first, all securities proposed by the Company (or, in the case of a secondary
offering, the Stockholders initiating such offering) to be sold for its (or
their) own account, second, all Registrable Securities requested to be included
in such registrations by the Stockholders on a pro rata basis, and third, any
other securities of the Company requested to be included in such registration on
a pro rata basis.
(c) Selection of Managing Underwriter. The managing underwriter of any
---------------------------------
underwritten offering pursuant to this Section 4.2 shall be selected by the
Company at its sole discretion.
13
Section 4.3 Registration Procedures. If and whenever the Company is
-----------------------
required to effect the registration of any Registrable Securities under the
Securities Act as provided in Section 4.1 and 4.2, the Company will as
expeditiously as possible:
(i) use its best efforts to prepare and (as soon as
practicable, and in any event within 75 days in the case of Forms S-1 or S-2 and
30 days in the case of a registration requested on Form S-3) file with the
Commission the requisite registration statement to effect such registration and
thereafter use its best efforts to cause such registration statement to become
effective; provided, however, that the Company may discontinue any registration
-------- -------
of its securities which are not Registrable Securities (and, under the
circumstances specified in Section 4.2(a), its securities which are Registrable
Securities) at any time prior to the effective date of the registration
statement relating thereto;
(ii) use its best efforts to prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement for such period as shall be required for
the disposition of all of such Registrable Securities, provided, that such
period need not exceed 180 days;
(iii) use its best efforts to furnish to each selling
Stockholder, such number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the Securities
Act, in conformity with the requirements of the Securities Act, and such other
documents, as each selling Stockholder may reasonably request;
(iv) use its best efforts (x) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such States of the
United States of America where an exemption is not available and as each selling
Stockholder shall reasonably request, (y) to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and (z) to take any other action which may be reasonably necessary or
advisable to enable each selling Stockholder to consummate the disposition in
such jurisdictions of the securities to be sold by each selling Stockholder,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign Company in any jurisdiction wherein it
would not but for the requirements of this subdivision (iv) be obligated to be
so qualified or to consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may be necessary
in the opinion of counsel to the
14
Company and counsel to each selling Stockholder to consummate the disposition of
such Registrable Securities;
(vi) in the case of an underwritten public offering of securities,
furnish to each selling Stockholder and the underwriters a signed counterpart of
(x) an opinion of counsel for the Company, and (y) a "comfort" letter signed by
the independent public accountants who have certified the Company's financial
statements included or incorporated by reference in such registration statement
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountant's comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountant's comfort letters delivered to the underwriters in
underwritten public offerings of securities (and dated the dates such opinions
and comfort letters are customarily dated) and, in the case of the accountant's
comfort letter, such other financial matters, and in the case of the legal
opinion, such other legal matters, as each selling Stockholder, or the
underwriters, may reasonably request;
(vii) notify each selling Stockholder at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of which, in the
judgment of the Company, the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, in the light of the circumstances under which
they were made, and at the request of each selling Stockholder promptly prepare
and furnish to it a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, in the judgment of the
Company, as thereafter delivered to the selling Stockholders of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
(viii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated thereunder, and promptly
furnish to each selling Stockholder a copy of any amendment or supplement to
such registration statement or prospectus;
(ix) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration; and
15
(x) use its best efforts to list all Registrable Securities covered by
such registration statement on any national securities exchange or national
quotations system on which Registrable Securities of the same class covered by
such registration statement are then listed.
The Company may require each selling Stockholder to furnish the Company in
writing as promptly as reasonably practicable such information regarding such
selling Stockholder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing.
Each selling Stockholder agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in subdivision (vii)
of this Section 4.3, such selling Stockholder will forthwith discontinue its
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such selling Stockholder's receipt
of the copies of the supplemented or amended prospectus contemplated by
subdivision (vii) of this Section 4.3 and, if so directed by the Company, will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such selling Stockholder's possession, of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
Section 4.4 Underwritten Offerings.
----------------------
(a) Requested Underwritten Offerings. If requested by the underwriters
--------------------------------
for any underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Section 4.1, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the Company, each selling
Stockholder and the underwriters and to contain such representations and
warranties by the Company and such other terms as are generally prevailing in
agreements of that type, including, without limitation, indemnities to the
effect and to the extent provided in Section 4.7. Each selling Stockholder will
cooperate with the Company in the negotiation of the underwriting agreement and
will give consideration to the reasonable suggestions of the Company regarding
the form thereof. Such selling Stockholder shall be a party to such underwriting
agreement and may, at its option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and
for the benefit of such underwriters shall also be made to and for the benefit
of such selling Stockholder and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligation of such selling Stockholder. No selling
Stockholder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such selling Stockholder, such selling
Stockholder's Registrable Securities, such selling Stockholder's intended method
of distribution and any other representations required by law.
(b) Incidental Underwritten Offerings. If the Company proposes to
---------------------------------
register any of its securities under the Securities Act as contemplated by
Section 4.2 and such securities
16
are to be distributed by or through one or more underwriters, the Company will,
subject to Section 4.8 hereof, if requested by any selling Stockholder arrange
for such underwriters to include all the Registrable Securities to be offered
and sold by such selling Stockholder among the securities of the Company to be
distributed by such underwriters. Such selling Stockholder shall be a party to
the underwriting agreement between the Company and such underwriters and may, at
its option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such selling
Stockholder and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions precedent
to the obligation of such selling Stockholder. No selling Stockholder shall be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding such selling Stockholder, such selling Stockholder's Registrable
Securities and such selling Stockholder's intended method of distribution or any
other representations required by law. Notwithstanding the foregoing provisions
of this Section 4.4(b), the Company need not include any Registrable Securities
in an underwritten offering of the Company's securities pursuant to Section 4.2
if the inclusion of such securities, in the opinion of the managing underwriter
for such offering by the Company, might adversely affect such offering by the
Company.
(c) Market Stand-Off Agreements.
---------------------------
(i) In the case of the initial underwritten public offering by
the Company of shares of Common Stock, if the officers and directors of the
Company agree not to effect any disposition (other than a bona fide pledge or
disposition of an Affiliate of any Stockholder who agrees to be bound by the
provisions of this paragraph) (a "Disposition") of any equity security of the
-----------
Company or of any security convertible into or exchangeable or exercisable for
any equity security of the Company (in each case, other than as part of such
underwritten public offering), each Stockholder agrees to the same during the
180-day period (or such longer period as may be reasonably requested by the
underwriter of such offering) beginning on, the effective date of such
registration statement (except as a part of such registration), provided that
such Stockholder has received written notice of such registration prior to such
effective date; provided, however, that any waiver of the foregoing restriction
-------- -------
by the Company or the Company's underwriters shall apply to all persons subject
to such restrictions pro rata based on the number of shares of Company capital
stock owned.
(ii) If any registration of Registrable Securities shall be in
connection with the initial underwritten public offering, the Company agrees (A)
not to effect any public sale or distribution of any of its equity securities or
of any security convertible into or exchangeable or exercisable for any equity
security of the Company (other than any such sale or distribution of such
securities in connection with any merger or consolidation by the Company or any
subsidiary of the Company or the purchase of the capital stock or substantially
all the assets of any other person or in connection with an employee stock
option or other benefit plan) during the 90 days prior to, and during the 180-
day period beginning on, the effective date of such registration statement
(except as part of such registration) and (B) that any agreement entered into
after the date of this Agreement pursuant to which the Company issues or agrees
to
17
issue any privately placed equity securities shall contain a provision under
which holders of such securities agree not to effect any Disposition of any such
securities during the period referred to in the foregoing clause (i) (except as
part of such registration, if permitted).
Section 4.5 Preparation; Reasonable Investigation. In connection with the
-------------------------------------
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give each selling Stockholder, its
underwriters, if any, and its counsel and accountants the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and, to the extent practicable,
each amendment thereof or supplement thereto, and give each of them such access
to its books and records (to the extent customarily given to underwriters of the
Company's securities) and such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of such
selling Stockholder's and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
Section 4.6 Limitations, Conditions and Qualifications to Obligations
---------------------------------------------------------
under Registration Covenants. The obligation of the Company to use its best
----------------------------
efforts to cause the Registrable Securities to be registered under the
Securities Act is subject to the limitation, condition and qualification that
the Company shall be entitled to postpone for a reasonable period of time (but
not exceeding 180 days) the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to Section 4.1 if the Company
determines, in its reasonable judgment, that such registration and offering
would interfere with any financing, acquisition, corporate reorganization or
other material transaction involving the Company or any of its Affiliates or
would require premature disclosure thereof and promptly gives each selling
Stockholder written notice of such delay provided, however, that the Company may
postpone a filing in such manner only once in each twelve-month period. If the
Company shall so postpone the filing of a registration statement, each selling
Stockholder shall have the right to withdraw the request for registration by
giving written notice to the Company within 30 days after receipt of the notice
of postponement and, in the event of such withdrawal, such request shall not be
counted for purposes of the requests for registration to which such selling
Stockholder is entitled pursuant to Section 4.1 hereof.
Section 4.7 Indemnification.
---------------
(a) Indemnification by the Company. In the event of any
------------------------------
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless, in the case of any
registration statement filed pursuant to Section 4.1 or 4.2, each selling
Stockholder, its directors, officers, partners, agents and Affiliates and each
other Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such selling Stockholder
or any such underwriter within the meaning of the Securities Act, insofar as
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Securities Act, any
18
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in which
they were made not misleading, and the Company will reimburse such selling
Stockholder and each such director, officer, partner, agent or affiliate,
underwriter and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided, that the Company
--------
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company through an instrument executed by or on behalf of such selling
Stockholder or underwriter, as the case may be, specifically stating that it is
for use in the preparation thereof; and provided, further, that the Company
-------- -------
shall not be liable to any Person who participates as an underwriter in the
offering or sale of Registrable Securities or any other Person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's failure to
send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus so long as such
final prospectus, and any amendments or supplements thereto, have been furnished
to such underwriter. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such selling Stockholder
or any such underwriter, director, officer, partner, agent or affiliate or
controlling Person and shall survive the transfer of such securities by such
selling Stockholder.
(b) Indemnification by Stockholders. As a condition to including any
-------------------------------
Registrable Securities in any registration statement, the Company shall have
received an undertaking satisfactory to it from each selling Stockholder, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 4.7) the Company, and each director of
the Company, each officer of the Company and each other Person, if any, who
controls the Company within the meaning of the Securities Act and each other
selling Stockholder and its affiliates, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such selling Stockholder specifically stating that
it is for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement;
provided, however, that the liability of each selling Stockholder under this
-------- -------
Section 4.7(b) shall be limited to the amount of proceeds received by such
selling Stockholder in the offering giving rise to such liability. Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any
19
such director, officer or controlling Person or selling Stockholder or affiliate
and shall survive the transfer of such securities by such selling Stockholder.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
-----------------------
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 4.7, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
-------- -------
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 4.7, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties is reasonably likely to exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and, to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties arises in respect
of such claim after the assumption of the defense thereof and the indemnified
party notifies the indemnifying party of such indemnified party's judgment and
the basis therefor. No indemnifying party shall be liable for any settlement of
any action or proceeding effected without its written consent, which consent
shall not be unreasonably withheld. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such claim or litigation.
(d) Contribution. If the indemnification provided for in this Section
------------
4.7 shall for any reason be held by a court to be unavailable to an indemnified
party under subparagraph (a) or (b) hereof in respect of any loss, claim, damage
or liability, or any action in respect thereof, then, in lieu of the amount paid
or payable under subparagraph (a) or (b) hereof, the indemnified party and the
indemnifying party under subparagraph (a) or (b) hereof shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating the same), (i) in
such proportion as is appropriate to reflect the relative fault of the Company
and each selling Stockholder, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and each selling Stockholder from the offering of the securities
covered by such registration statement. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. In addition, no Person shall be obligated to
contribute hereunder any amounts
20
in payment for any settlement of any action or claim effected without such
Person's consent, which consent shall not be unreasonably withheld.
(e) Other Indemnification. Indemnification and contribution similar to
---------------------
that specified in the preceding subdivisions of this Section 4.7 (with
appropriate modifications) shall be given by the Company and selling Stockholder
with respect to any required registration or other qualification of securities
under any federal or state law or regulation of any governmental authority other
than the Securities Act.
(f) Indemnification Payments. The indemnification and contribution
------------------------
required by this Section 4.7 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred. In any case in which
it shall be judicially determined that a party is not entitled to
indemnification or contribution, any payments previously received by such party
hereunder shall be promptly reimbursed.
Section 4.8 Limitations on Registrations of Registrable Securities. The
------------------------------------------------------
Company shall not be required to effect any registration of Registrable
Securities pursuant to Section 4.1 or 4.2 hereof if it shall deliver to each
selling Stockholder an opinion of counsel (which opinion and counsel shall be
reasonably satisfactory to such selling Stockholder) to the effect that all
Registrable Securities held by such selling Stockholder may be sold immediately
in the public market without registration under the Securities Act and any
applicable state securities laws.
Section 4.9 Definitions. As used herein, unless the context otherwise
-----------
requires, the following terms have the following respective meanings:
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
---------
of the General Rules and Regulations under the Exchange Act.
"Commission" means the Securities and Exchange Commission or any other
----------
federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to the comparable section, if any, of any such similar
Federal statute.
"Initiating Holder" means the holder of Registrable Securities
-----------------
initially requesting registration pursuant to Section 4.1 hereof.
"Person" means a corporation, an association, a partnership, a limited
------
liability company, an organization, a business, an individual, a governmental or
political subdivision thereof or a governmental agency.
21
"Qualified Public Offering" shall have the meaning given to it in the
-------------------------
Company's Certificate of Incorporation, as amended.
"Registration Expenses" means all expenses incident to the Company's
---------------------
performance of or compliance with Section 4, including, without limitation, all
registration, filing and NASD fees, all listing fees, all fees and expenses of
complying with securities or blue sky laws (including, without limitation,
reasonable fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities), all word
processing, duplicating and printing expenses, messenger and delivery expenses,
the fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of "cold comfort" letters required by
or incident to such performance and compliance, any fees and disbursements of
underwriters (including, without limitation, fees and expenses of counsel to the
underwriters) customarily paid by issuers or sellers of securities; provided,
--------
however, that Registration Expenses shall exclude, and such selling Stockholder
-------
shall pay, underwriters' fees and underwriting discounts and commissions and
transfer taxes in respect of the Registrable Securities being registered by such
selling Stockholder and the fees and disbursements of counsel for such selling
Stockholder.
"Registrable Securities" means (i) any shares of Common Stock held by
----------------------
the Stockholders, (ii) the shares of Common Stock (or other securities) issuable
or issued upon conversion of the Shares, (iii) any securities of the Company
issuable or issued with respect to the Shares and/or Common Stock (or other
securities) referred to in clause (i) or (ii) by way of a merger, consolidation,
stock split, stock dividend, recapitalization of the Company or similar
transaction and (iv) any other securities of the Company acquired by a
Stockholder after the date of this Agreement. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) they
shall have been sold as permitted by, and in compliance with, Rule 144 (or any
successor provision) promulgated under the Securities Act, (c) they shall have
been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer under the Securities Act shall have been delivered
by the Company and subsequent public distribution of them shall not require
registration of them under the Securities Act or (d) they shall have ceased to
be outstanding.
"Securities Act" means the Securities Act of 1933, or any similar
--------------
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. References to a particular section
of the Securities Act of 1933 shall include a reference to the comparable
section, if any, of any such similar federal statute.
Section 4.11 Rule 144. From and after such time as any class or series of
--------
equity securities of the Company has been registered under Section 12 or 15(d)
of the Exchange Act (the "IPO"), the Company shall take all actions reasonably
necessary to enable each Stockholder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the
22
Commission including, without limiting the generality of the foregoing, filing
on a timely basis all reports required to be filed by the Exchange Act. Upon the
request of each Stockholder, the Company will deliver to such Stockholder a
written statement as to whether it has complied with such requirements.
Section 4.12 Assignment. This Agreement shall be binding upon and inure
----------
to the benefit of and be enforceable by the parties hereto and, with respect to
the Company, its respective successors and assigns and, with respect to any
Stockholder, any beneficial owner of more than 125,000 shares (adjusted for
stock splits, stock dividends, recapitalizations and the like) of Registrable
Securities.
Section 4.13 Termination. The terms and provisions of this Section 4
-----------
shall automatically and without any further action terminate upon the earlier of
(i) the opening of business on the fifth anniversary of the date of the IPO and
(ii) as to each Holder, when all Registrable Securities that such Holder holds
may be publicly offered, sold and distributed without registration under the Act
pursuant to Rule 144 within any three month period, Regulation S or other
exemption from registration promulgated by the Commission under the Act.
ARTICLE V
TERMINATION AND EFFECTIVENESS
Section 5.1 Events of Termination. This Agreement shall terminate upon the
---------------------
earliest occurrence of any of the following events: (i) the written agreement of
66-2/3% of the voting power of the Shares held by the Stockholders; provided,
--------
however, that the terms and conditions of Section 3.3 (as applied to non-public
-------
market transfers of shares) shall remain in full force and effect; (ii) the
dissolution, bankruptcy or insolvency of the Company; and (iii) the consummation
of a Qualified Public Offering, Company Merger (as defined below), sale, lease
or exchange of all or substantially all of the assets of the Company (other than
as contemplated by the InfoTouch Merger); provided, however, that the terms and
-------- -------
conditions of Section 3.3(a) and (b) (as applied to non-public market transfers
of shares) and Article IV hereof shall remain in full force and effect.
For purposes hereof, "Company Merger" shall mean any consolidation of
the Company with, or merger of the Company with or into, another corporation or
reorganization of the Company; other than a consolidation, reorganization or
merger in which the Company is the surviving corporation. The Company shall be
the "surviving corporation" in any merger if the Company, or its stockholders
immediately before the transaction, shall own (immediately after the
transaction) equity securities, other than warrants, options or similar rights
to subscribe to or purchase equity securities, of the surviving or acquiring
corporation, or its parent corporation, possessing more than 50% of the voting
power of the surviving or acquiring corporation or its parent corporation; and
in making the determination of ownership by the stockholders of a corporation,
immediately after the transaction, of equity securities pursuant to the
preceding clause, equity securities which they owned immediately before the
transaction as shareholders of another party to the transaction shall be
disregarded. For the purposes hereof, voting power of a corporation shall be
calculated by assuming the conversion of all then outstanding convertible
23
equity securities (including those convertible at some future date), but not
assuming the exercise of any warrants, options or other rights to subscribe to
or purchase voting shares.
Section 5.2 Effect of Termination. In the event of termination of this
---------------------
Agreement pursuant to Section 5.1 hereof, this Agreement shall forthwith become
null and void and of no further force and effect, without any liability on the
part of any party or its directors, officers, partners, members, managers,
affiliates, employees, agents or security holders, except as otherwise provided
in Sections 5.1(i) and (iii) hereof.
Section 5.3 Effectiveness. Notwithstanding anything in this Agreement to
-------------
the contrary, this Agreement shall be conditioned on, and effective as of
immediately prior to, the Effective Time of the InfoTouch Merger, and in the
event that the InfoTouch Merger does not close on or before February 28, 1999,
this Agreement shall be of no force or effect, and the Prior Stockholders'
Agreement shall continue to be effective and apply to the parties thereunder.
If and when this Agreement becomes effective it shall amend, restate and
supersede in its entirety the Prior Stockholders Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Additional Parties. If pursuant to Section 1.3 of the Stock
------------------
Purchase Agreement dated August 21, 1998, as amended, additional parties
purchase shares of Series F Preferred Stock as "New Purchasers" thereunder, then
each such New Purchaser shall become a party to this Agreement as a
"Stockholder" hereunder, without the need for any consent, approval or signature
of any Purchaser when such New Purchaser has both: (i) purchased shares of
Series F Stock under such Stock Purchase Agreement and paid the Company all
consideration payable for such shares and (ii) executed one or more counterpart
signature pages to this Agreement as a "Stockholder", with the Company's
consent.
Section 6.2 Information Rights. The Company shall deliver to each
------------------
Stockholder, on an annual and quarterly basis, consolidated financial statements
(audited in the case of annual statements), the Company's annual budget and
business plan, and any other information that may be reasonably requested by (i)
any Stockholder that owns more than twenty percent (20%) of the Shares on a
fully diluted basis; or (ii) any holder of Series C Preferred Stock, Series D
Preferred Stock or Series F Preferred Stock; provided, however, that, unless
-------- -------
required by any law or regulation promulgated by a governmental agency, any
statements or information delivered or disclosed by the Company pursuant to this
paragraph shall be confidential and shall not be disclosed by any Stockholder to
any third party without the prior written consent of the Company.
Section 6.3 Legend. All certificates representing the issued and
------
outstanding Shares of the capital stock of the Company shall bear the following
legend:
24
"THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED BY A STOCK PURCHASE AGREEMENT DATED AUGUST 21, 1998, AS
AMENDED, AND A STOCKHOLDER'S AGREEMENT DATED AS OF JANUARY 28, 1999,
BY AND BETWEEN THE COMPANY AND CERTAIN OF ITS SECURITYHOLDERS COPIES
OF WHICH ARE ON FILE IN THE PRINCIPAL OFFICE OF THE COMPANY."
Such endorsement shall not affect the rights of Stockholders to vote the shares
of Common Stock and Preferred Stock and receive dividends thereon. Following any
termination of this Agreement, a Stockholder may have any legend referring to
the existence of this Agreement removed from any certificates representing such
Stockholder's Shares.
Section 6.4 Third Party Beneficiary. No provision of this Agreement is
-----------------------
intended to confer upon any person other than the parties hereto (and their
respective successors and assigns) any rights or remedies hereunder.
Section 6.5 Further Documents. The parties hereto shall execute and
-----------------
deliver any and all documents or legal instruments necessary or desirable to
carry out the provisions of this Agreement.
Section 6.6 Binding Agreement; Entire Agreement; Successors and Assigns.
-----------------------------------------------------------
This Agreement shall be binding upon the Stockholders and the Company, and their
respective successors and assigns. This Agreement constitutes the entire
contract between the Company and the Stockholders relative to the subject matter
hereof. Any previous agreement between the Company and any Stockholders
concerning the subject matter hereof is superseded by this Agreement, including
without limitation the Prior Stockholders' Agreement. Subject to the exceptions
specifically set forth in this Agreement, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successor, and assigns of the parties
(including transferees of any of the Shares issued upon conversion thereof).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
Section 6.7 Governing Law. This Agreement shall be governed by the laws of
-------------
the State of Delaware except for those provisions governing conflict of laws,
notwithstanding that one or more of the parties to this Agreement is now, or may
hereafter become, a resident or citizen of a different State.
Section 6.8 Amendment; Waiver. This Agreement or any provision hereof may
-----------------
be amended, waived, discharged or altered in any manner, but any such change
shall become effective only if, when and to the extent it is reduced to a
writing signed by a two thirds (2/3rds) of the voting power of the Shares held
by the Stockholders provided, however, that any amendment, waiver, discharge or
-------- -------
alteration of Section 2.1, Section 3.3 or Section 5.1 hereof or
25
this Section 6.8 (as it relates to Sections 2.1, 3.3 or 5.1) shall require the
prior approval of NAR, which approval shall not be unreasonably withheld.
Section 6.9 Notices. All notices, requests, demands and other
-------
communications made hereunder shall be in writing and shall be deemed duly given
when delivered personally against receipt or sent by facsimile, delivered by
recognized overnight delivery service (i.e., Federal Express, Airborne or UPS),
----
or on the third day after deposit with the post office by registered or
certified mail, postage prepaid and return receipt requested, as set forth on
Exhibit B hereto, or to such other address or person as a party may hereafter
designate by notice to the other party:
Section 6.10 No Continuing Waiver. No waiver of any default or breach of
--------------------
this Agreement shall be determined a continuing waiver or a waiver of any other
breach or default hereunder.
Section 6.11 Severability. The invalidity or unenforceability of any
------------
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed, in all respects, as though such
invalid or unenforceable provisions were omitted.
Section 6.12 Headings. Headings that appear in this Agreement are intended
--------
solely for ease of reference and not as substantive language, and should not be
considered in the construction hereof.
Section 6.13 Books and Records. The books and records of the Company shall
-----------------
be available to the Stockholders, and to any of them, for review at the address
of the Company at normal business hours on normal business days.
Section 6.14 Aggregation of Stock. All shares held or acquired by
--------------------
affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
Section 6.15 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of will shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
26
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date first above written.
NETSELECT, INC. INGLESIDE INTERESTS, A CALIFORNIA
LIMITED PARTNERSHIP
By:___________________________________ By:_______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Partner
Title: Co-Manager
CDW INTERNET, L.L.C. GEOCAPITAL IV, L.P.
By:___________________________________ By: GEOCAPITAL MANAGEMENT, L.P.,
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D. its General Partner
Title: Co-Manager
WHITNEY EQUITY PARTNERS, L.P. By:_______________________________
By: ▇.▇. ▇▇▇▇▇▇▇ Equity Partners, LLC Name:
its General Partner Title:
By:___________________________________ BROADVIEW PARTNERS GROUP
Name:
a Managing Member
▇▇▇▇▇ & CO. By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Nominee
By:___________________________________ By:_______________________________
Name: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Title:
INFOTOUCH CORPORATION GENERAL ELECTRIC CAPITAL
CORPORATION
By:____________________________________ By:_______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name:
Title: President and Chief Executive Title:
Officer
_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Individually
27
[SIGNATURE PAGE TO SECOND AMENDED AND
RESTATED NETSELECT, INC. STOCKHOLDERS' AGREEMENT]
28
NATIONAL ASSOCIATION OF REALTORS
_______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Individually
By:_____________________________
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇, Individually Name:
Title:
_______________________________________ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VENTURE PARTNERS
▇▇▇▇ ▇▇▇▇▇, Individually III, L.P.
_______________________________________ By:▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture
R. ▇▇▇▇ ▇▇▇▇▇ III, Individually Partners III, L.L.C.
its General Partner
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ By:▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital
III, Inc. its
Institutional Managing Member
By: KPCB VIII Associates, L.P., its By:____________________________
General Partner Name:
Title:
By: ____________________________________ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VENTURE INVESTORS
Name: III, L.P.
Title: General Partner
KPCB VIII FOUNDERS FUND, L.P. By:▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partners
III, L.L.C. its General Partner
By: KPCB VIII Associates, L.P., its By:▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital
General Partner III, Inc. its
Institutional Managing Member
By: ____________________________________ By:_____________________________
Name: Name:
Title: General Partner Title:
[SIGNATURE PAGE TO SECOND AMENDED AND
RESTATED NETSELECT, INC. STOCKHOLDERS' AGREEMENT]
28
KPCB INFORMATION SCIENCES THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VENTURE PARTNERS
ZAIBATSU FUND II, L.P. ENTREPRENEUR FUND, L.P.
By:KPCB VII Associates, L.P., its By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partners
General Partner III, L.L.C. its General Partner
By:________________________________ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital
Name: III Inc. its
Title: General Partner Institutional Managing Member
INTUIT, INC. By:_______________________________
Name:
Title:
By:________________________________ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITY
Name: FUNDING, INC.
Title:
By:________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇
▇▇▇ INTERACTIVE MEDIA, INC. By:_________________________________
Name:
Title:
By:________________________________ UBS CAPITAL II, LLC
Name:
Title:
By:_________________________________
▇▇▇▇▇▇ ▇▇▇ Name:
Title:
By:_________________________________ INFOTOUCH CORPORATION
Name:
Title: By:_________________________________
Name:
Title:
29
[SIGNATURE PAGE TO SECOND AMENDED AND
RESTATED NETSELECT, INC. STOCKHOLDERS' AGREEMENT]
INFOTOUCH STOCKHOLDER THE NATIONAL ASSOCIATION OF HOME BUILDERS
OF THE UNTIED STATES
By: ______________________________ By:______________________________________
Name: Name:
Title: Title:
[SIGNATURE PAGE TO SECOND AMENDED AND
RESTATED NETSELECT, INC. STOCKHOLDERS' AGREEMENT]
31
Exhibit A
---------
INFOTOUCH STOCKHOLDERS
Kalpana & ▇▇▇▇▇▇ ▇▇▇▇▇▇ HWTM Partners XII
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ Suite BLC ▇▇-▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Saakey ▇. ▇▇▇▇▇▇▇
Valley Business Printers Hidden Creek Industries
16230 Filbert St. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
First Consulting Group ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. #▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 213-683-4208
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Family Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ SBH Investments
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ #▇-▇▇▇ ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
650-854-1980 ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
RealSelect ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
KL LLC ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Globe Wireless ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 818-613-9007
(▇▇▇) ▇▇▇-▇▇▇▇
1/st/Natl. Bank of Omaha TTEE for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇ 2410 S. 156/th/ Circle #100
Trust Dept. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ MD, Inc. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Money Purchase pension Plan 5 Kent
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 714-851-1688
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
DACOR RealSelect
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ ▇ ▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
RealSelect 626 North 164/th/ St.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
2
Exhibit B
---------
NOTICE INFORMATION
If to the Company, to: If to GeoCapital, to:
NetSelect, Inc. GeoCapital IV, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: If to Broadview, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. Broadview Partners Group
Fenwick & West, LLP ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to CDW Internet or ▇▇▇▇▇ & Co., to: If to InfoTouch, Flannery, Petrick,
▇▇▇▇ or Ingleside, to:
NetSelect, Inc. InfoTouch Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Ph.D. Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: With a copy to:
Battle ▇▇▇▇▇▇ LLP Troop ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Park Avenue Tower ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Whitney, to: If to NAR, to
Whitney Equity Partners, L.P. National Association of REALTORS(R)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, Esq. Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: If to a KP Entity, to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:[ ] Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to GE Capital, to: With a copy to:
General Electric Capital Corporation ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Equity Capital Group - NetSelect Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Account Manager Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ & (203)
357-3047
With a copy to: If to ▇▇▇▇ ▇▇▇▇▇ or R. ▇▇▇▇ ▇▇▇▇▇ I II, to:
▇▇▇▇▇▇ ▇▇ ▇▇▇▇, Esq. National New Homes Co., Inc.
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
One New York Plaza Dallas, Texas 75248
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to NAHB, to: With a copy to:
The National Association of Home Builders of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
the United States Ford, Ferraro, Fritz, ▇▇▇▇▇, ▇▇▇▇ & Head,
National Housing Center L.L.P.
▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇.▇. ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: If to Intuit, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. Intuit, Inc.
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Valentine
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ Mae, to: If to Cox, to:
2
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Interactive Media, Inc.
Attn: General Counsel ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partner If to UBS Capital II, LLC:
Entity, to:
UBS Warburg Dillon Read
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇-▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Equity
Funding, Inc.
c/o Morgan ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
3