exv10w1



 





Exhibit 10.1




ASSET PURCHASE AGREEMENT




     This Asset Purchase Agreement (the “Agreement”) is dated as of October 6,
2004 by and between Homestore, Inc., a Delaware corporation, (“Seller”) and
Wyld Acquisition Corp., a Delaware corporation, (the “Purchaser”).



RECITALS:




     A. Seller operates a division known as WyldFyre Technologies (“WyldFyre”)
which provides software products and services which enable users to access,
display and manipulate property listing information (the “WyldFyre Business”).



     B. This Agreement contains the terms pursuant to which Purchaser shall
acquire for cash substantially all of the assets used in the operation of the
WyldFyre Business and shall assume certain specified liabilities and agree to
perform Seller’s obligations under certain specified assigned contracts and
leases, all as specified herein.



     AGREEMENT:



     In consideration of the Recitals and of the agreements and covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:



1. DEFINITIONS




     As used herein, the following terms shall have the following meanings
unless the context otherwise requires:



     “Accounts Receivable” means all of Seller’s accounts receivable and trade
receivables in respect of the WyldFyre Business, the Acquired Assets or
otherwise arising on or before the Closing Date.



     “Acquired Assets” means all of the right, title, and interest that Seller
possesses and has the right to transfer in and to its (a) tangible personal
property (computers, servers, telecommunications equipment, other office
equipment, furniture, and supplies on hand) used in the WyldFyre Business and
listed on Exhibit A hereto, (b) the WyldFyre Business Intellectual Property,
including remedies against infringements thereof, and rights to protection of
interests therein under the laws of all jurisdictions, (c) agreements,
contracts, licenses, and other similar arrangements used in the WyldFyre
Business and listed on Exhibit B (the “Seller Contracts”), and copies of all
documentation and correspondence with respect thereto, and (d) advertising and
promotional materials, studies, reports, and other printed or written materials
pertaining to the marketing and sale of goods or services by the WyldFyre
Business; except and excluding in each case all Excluded Assets.



 









 





     “Assignment and Assumption of Intellectual Property” has the meaning set
forth in Section 2.6 below.



     “Assumption Agreement” has the meaning set forth in Section 2.6 below.



     “Assumed Liabilities” means the following liabilities and obligations of
Seller with respect to the WyldFyre Business (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due): (a) one-half (50%) of all liabilities for Transfer Taxes arising in
connection with the consummation of the transactions contemplated hereby, (b)
all outstanding post-executory liabilities and obligations of Seller under the
agreements, contracts, leases, licenses, and other arrangements included in the
Acquired Assets but not including any such liabilities that arose as a result
of any breach or alleged breach by Seller on or before the Closing Date of any
such agreements, contracts, leases, license, or other arrangements, (c) any
liability for gas, water, sewer, telecommunications, or electric service to the
Leased Premises accrued for periods beginning on or after the date hereof, and
(d) those liabilities and obligations of Seller with respect to its WyldFyre
Business set forth on Exhibit C. Provided, however, that the Assumed
Liabilities shall not include (x) liability for Income Taxes with respect to
the operation of the WyldFyre Business that relate either to taxable periods
ending on or before the Closing Date or to the daily ratable portion of a
Straddle Period ending on the Closing Date, (y) any liability for costs and
expenses (including legal fees and expenses) Seller has incurred in connection
with this Agreement and the transactions contemplated hereby, and (z) any
liability or obligation of Seller under this Agreement.



     “Closing” shall mean the consummation of the transactions contemplated
herein.



     “Closing Date” shall mean the date first above written.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Confidential Information” has the meaning set forth in Section 5.3 below.



     “Disclosure Schedule” has the meaning set forth in Section 3.1 below.



     “Encumbrances” means any lien, mortgage, security interest, pledge,
restriction on transferability, defect of title or other claim, charge, or
encumbrance of any nature whatsoever on any property or property interest,
including any restriction on the use, voting, transfer, receipt of income, or
other exercise of any attributes of ownership.



     “Escrow Agreement” shall have the meaning set forth in Section 2.3 below.



     “Escrow Agent” shall mean U.S. Bank, National Association.



     “Escrow Amount” shall mean amounts held by the Escrow Agent from time to
time under the Escrow Agreement.



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     “Excluded Assets” shall mean the following assets of Seller: (i) Seller’s
rights under this Agreement (including Seller’s rights to the consideration
paid and payable under this Agreement), (ii) all cash, cash equivalents and
short term investments of Seller, (iii) all Accounts Receivable, (iv) all
assets related to any employee benefit plan, pension plan, collective
bargaining, union, labor or employment agreement and all assets related to
health benefits, (v) policies of insurance covering Seller, (vi) all personnel
records and other records that the Seller is required by law to retain in its
possession, (vii) Seller’s certificate of incorporation, qualifications to
conduct business as a foreign corporation, arrangements with registered agents
relating to foreign qualifications, taxpayer and other identification numbers,
seals, minute books, stock transfer books, blank stock certificates, and other
documents relating to the organization, maintenance, and existence of Seller as
a corporation and Seller’s predecessors, (viii) all prepaid deposits tendered
to a third party prior to the Closing Date, including, but not limited to, the
security deposit paid in connection with the Lease, as defined below, (ix) the
expressly reserved right of Seller and its assigns to use the Intellectual
Property Rights as set forth in Section 5.5 hereof, (x) all rights to any
refunds, rebates or allowances, including without limitation and refunds of
Taxes, and (xi) those assets of Seller that are not defined as Acquired Assets
herein.



     “Income Tax” means any federal, state, local, or foreign Tax based on or
measured by reference to net income including any interest, penalty, or
addition thereto, whether disputed or not.



     “Indemnified Party” has the meaning set forth in Section 6.2(d) below.



     “Indemnifying Party” has the meaning set forth in Section 6.2(d) below.



     “Intellectual Property Rights” shall mean all patent rights, copyrights,
moral rights, trademark, service mark, and trade name rights (including but not
limited to all goodwill associated therewith), rights under unfair competition
law, trade secret rights (including but not limited to customer lists and
customer databases), privacy rights, publicity rights, and all similar
intellectual and industrial property rights now known or hereafter existing
under the laws of the United States or any other jurisdiction anywhere in the
world (including but not limited to all rights in applications and
registrations pertaining to the foregoing).



     “Lease” shall mean that certain Lease dated April 19, 1999, as amended on
April 26, 2001 and April 19, 2004, with OTR, an Ohio General Partnership with
respect to the Leased Premises.



     “Leased Premises” means the commercial office premises located at 900 East
Hamilton Ave., Campbell, California.



     “Listed Employees” has the meaning set forth in Section 5.3.



     “Material Adverse Effect” means a material adverse effect after the
Closing Date on the condition (financial or other) or operations of the
Acquired Assets or the WyldFyre Business, assuming in each case that the
acquired assets are used, and the WyldFyre Business is conducted, in a manner
substantially similar to the use and conduct thereof by Seller prior to the
date hereof.



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     “Parties” or “Party” shall mean Seller and Purchase or either of them.



     “Purchase Price” shall be Eight Million Five Hundred Thousand Dollars
($8,500,000).



     “Registered Intellectual Property Rights” shall mean all US, international
and foreign: (i) Patents, including applications therefor; (ii) registered
trademarks, applications to register trademarks, including intent-to-use
applications, or other registrations or applications related to trademarks;
(iii) copyrights, including registrations and applications to register
copyrights; and (iv) any other technology that is the subject of an
application, certificate, filing, registration or other document issued by,
filed with, or recorded by, any state, government or other public legal
authority at any time.



     “Retained Employees” has the meaning set forth in Section 5.3.



     “Straddle Period” means any taxable period beginning prior to and ending
after the Closing Date.



     “Sublease” has the meaning set forth in Section 2.6 below.



     “To Seller’s knowledge” shall mean the actual knowledge, after reasonable
due inquiry, of Catherine Nance, Dave Fisher, Paul Simos, Jim Caulfield and
Errol Samuelson.



     “Tax” or “Taxes” means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code §59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, when computed on a separate or
consolidated, unitary or combined basis or in any other manner, including any
interest, penalty, or addition thereto, whether disputed or not.



     “Tax Returns” means any and all returns, reports, claims for refund,
information returns, or other statements (including elections, declarations,
disclosures, schedules, estimates, and attachments), including amendments
thereof, required to be filed by a Party with respect to Taxes.



     “Technology” means any or all of the following: (i) works of authorship
including, without limitation, computer programs, source code and executable
code, whether embodied in software, firmware or otherwise, documentation,
designs, files, net lists, records, data and mask works; (ii) inventions
(whether or not patentable), improvements, tools, methods, processes and
technology; (iii) confidential or proprietary information, including technical
data, tools, methods and processes; (iv) databases, data compilations, data
collections and technical data; (v) logos, trade names, trade dress,
trademarks, world wide web addresses and domain names; (vi) all know-how, trade
secrets, and other confidential or proprietary information including, without
limitation, methodologies, processes, customer lists, supplier lists, products
plans, service plans and rights in research and development; and (vii) all
instantiations of the foregoing in any form and embodied in any media.



     “Third-Party Claim” has the meaning set forth in Section 6.2(d) below.



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     “Transfer Taxes” has the meaning set forth in Section 2.4(viii) below.



     “WyldFyre” and “WyldFyre Business” have the meaning set forth in the
Recitals.



     “WyldFyre Employees” means those employees of Seller listed on Exhibit D
hereto who work for the WyldFyre Business located at the Leased Premises.



     “WyldFyre Business Intellectual Property” shall mean the Technology and
Intellectual Property Rights listed on Exhibit E that are owned by or licensed
to the Seller and currently used in the WyldFyre Business.



2. PURCHASE AND SALE OF ASSETS




     2.1 Purchase and Sale. On the Closing Date, subject to the terms and
conditions of this Agreement, Seller shall sell, assign, transfer, convey and
deliver to Purchaser and Purchaser shall purchase and accept from the Seller,
all of Seller’s right, title and interest in and to all of the Acquired Assets.



     2.2 Assumption of Liabilities On the Closing Date, subject to the terms
and conditions of this Agreement, Purchaser shall assume and become responsible
for all of the Assumed Liabilities.



     2.3 Purchase Price. On the Closing Date, Purchaser shall cause the
Purchase Price to be delivered as follows:



     Seven Million Six Hundred Fifty Thousand Dollars ($7,650,000) shall be
delivered to Seller in cash via wire transfer to such bank account as directed
by Seller; and



     Eight Hundred Fifty Thousand Dollars ($850,000) shall be delivered to
Escrow Agent to be held in accordance with the terms and conditions of an
Escrow Agreement in the form of Exhibit F in order to secure the
indemnification obligations of Seller as set forth in Section 6.2. Such Escrow
Agreement provides that the funds so delivered into escrow, including interest
thereon, shall be held in an interest bearing account for a period of one (1)
year. Such funds, less any amounts distributed to Purchaser in satisfaction of
indemnification claims, if any, shall be delivered to Seller on the first
anniversary of the Closing Date, provided that in the event Purchaser has made
a claim against Seller for indemnification hereunder during the escrow period,
then the escrow shall not terminate with respect to such portion of the
escrowed funds in an amount equal to the amount so claimed by Purchaser,
subject to the objection of Seller and subsequent arbitration of the matter as
provided in the Escrow Agreement.



     The Purchase Price (and all other capitalized costs) shall be allocated
among the Acquired Assets in accordance with Code §1060 and the Treasury
regulations thereunder in the manner set forth on Exhibit G hereto, which
allocation shall be binding upon Seller and Purchaser. Seller and Purchaser
shall report, act and file Tax returns (including, but not limited to Internal
Revenue Service Form 8594) in all respects and for all purposes consistent with
such allocation. Seller and Purchaser shall timely and properly prepare,
execute, file and deliver all such documents, forms and



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other information as either may reasonably request to prepare in
connection with such allocation. Neither Seller nor Purchaser shall take any
position (whether in audits, tax returns or otherwise) that is inconsistent
with such allocation unless required to do so by applicable law.




     2.4 Liabilities After Closing Date. Purchaser shall be responsible for
any and all contracts, debts, warranties, obligations, undertakings, claims,
liabilities and accounts payable arising out of Purchaser’s use and operation
of the Acquired Assets after the Closing Date, the Assumed Liabilities as set
forth in Section 2.2 above, and Purchaser’s obligations under the Sublease.
Except for the Assumed Liabilities and the Sublease, Purchaser is not assuming
any obligations or liabilities of the Seller that arose through the Closing
Date. Seller shall be responsible for the payment of all office leases,
utilities and other operating expenses of the WyldFyre Business accruing on or
prior to the Closing Date.



     Notwithstanding any other provision of this Agreement, and, without
limiting the statements set forth in the preceding paragraph, Purchaser is not
assuming under this Agreement any of the following (each, an “Unassumed
Liability”):



     (i) liabilities arising out of any default by Seller of any provision of
any Seller Contract on or prior to the Closing Date;



     (ii) any product liability or similar claim for injury to any person or
property, regardless of when made or asserted, that arises out of or is based
upon any express or implied representation, warranty, agreement or guarantee
made by the Seller, or alleged to have been made by the Seller, or that is
imposed or asserted to be imposed by operation of law in connection with any
service performed or product sold or leased by or on behalf of the Seller on or
prior to the Closing;



     (iii) Tax payable with respect to the WyldFyre Business, the Acquired
Assets, or other properties or operations of the Seller or of any member of any
affiliated group of which the Seller is a member attributable to a taxable
period ending on or prior to the Closing Date;



     (iv) any liabilities under or in connection with any Excluded Assets;



     (v) any liabilities arising on or prior to the Closing Date or as a result
of the Closing for severance, bonuses or any other form of compensation to any
employees, agents or independent contractors of the Seller related to the
period on or prior to the Closing Date, whether or not employed by Purchaser
after the Closing and whether or not arising or under any applicable employee
law, benefit plan or other arrangement with respect thereto;



     (vi) any liabilities of the Seller arising or incurred in connection with
the negotiation, preparation and execution of this Agreement;



     (vii) any environmental liability related to the WyldFyre Business or the
Acquired Assets arising from or related to circumstances arising or existing on
or before the Closing Date;



     (viii) liabilities from any sales, transfer, documentary, use,
registration, value-added and



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other similar taxes (including all applicable real estate transfer taxes) and
related fees (including any penalties, interest and additions to such taxes)
(collectively, “Transfer Taxes”) incurred in connection with this Agreement and
the transactions contemplated herein, except as set forth in this Agreement;




     (ix) any liabilities to give credits or take other remedial actions for
defective goods or services of the WyldFyre Business arising on or before the
Closing Date;



     (x) any liabilities for money borrowed of Seller;



     (xi) any liability of Seller or its affiliates based upon an act or
omission of Seller or any such affiliate after the Closing Date;



     (xii) any obligation or liability with respect to litigation arising with
respect to the operation of the WyldFyre Business on or prior to the Closing
Date, including without limitation the litigation described on Schedule 3.9
hereto; and



     (xiii) any other liabilities of Seller, regardless of when made or
asserted, that are not specifically assumed hereunder.



     2.5 Consent of Third Parties. Nothing in this Agreement shall be
construed as an attempt by the Seller to assign to Purchaser pursuant to this
Agreement any contract, permit, franchise, claim or asset included in the
Assets that is by its terms or by law nonassignable without the consent of any
other party or parties, unless such consent or approval shall have been given,
or as to which all the remedies for the enforcement thereof available to the
Seller would not by law pass to Purchaser as an incident of the assignments
provided for by this Agreement (a “Non-Assignable Contract”). To the extent
that any such consent (each a “Third-Party Consent”) in respect of, or a
novation of, a Non-Assignable Contract shall not have been obtained on or
before the Closing Date, Purchaser may elect to proceed with the Closing, in
which case, the Seller shall continue to use reasonable efforts to obtain any
such consent or novation after the Closing Date until such time as it shall
have been obtained, and the Seller shall cooperate with Purchaser in any
economically feasible arrangement to provide that Purchaser shall receive the
interest of the Seller in the benefits and obligations under such
Non-Assignable Contract, including performance by the Seller as agent if
economically feasible, provided that Purchaser shall undertake to pay, perform
or satisfy the corresponding liabilities or obligations under the terms of such
Non-Assignable Contract to the extent that Purchaser would have been
responsible therefor if such consent or approval had been obtained. To the
extent Seller requests that Purchaser assist Seller in seeking to obtain any
Third Party Consent after the Closing Date, then Seller shall pay and
discharge, and shall indemnify and hold harmless Purchaser and its Affiliates
from and against, any and all reasonable out of pocket costs of seeking to
obtain or obtaining any such Third Party Consent provided that Seller approves
of such costs in writing and in advance. Nothing contained in this Section 2.5
or elsewhere in this Agreement shall be deemed a waiver by Purchaser of its
right to have received on the Closing Date an effective assignment of all of
the Assets or of the covenant of the Seller to obtain all such Third-Party
Consents, nor shall this Section 2.5 or any other provision of this Agreement
be deemed to constitute an agreement to exclude from the Assets any contracts
as to which such consent may be necessary.



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     2.6 Deliveries at the Closing. On the date hereof, the Seller and
Purchaser have executed this Agreement. Contemporaneously with the execution
of this Agreement,



     (a) Seller shall:




	 	(i)	 	execute, acknowledge and deliver to Purchaser the
Sublease in the form of Exhibit H-1 with respect to the Leased
Premises;
	 
	 	(ii)	 	execute and deliver to Purchaser the Assignment
of Marks in the form of Exhibit H-2;
	 
	 	(iii)	 	execute and deliver to Purchaser those other
instruments of transfer and conveyance specified in Exhibit
H-3;
	 
	 	(iv)	 	execute and deliver to Purchaser the Assignment
and Assumption Agreement in the form of Exhibit H-4;
	 
	 	(v)	 	execute and deliver to Purchaser and Escrow Agent
the Escrow Agreement;
	 
	 	(vi)	 	execute and deliver to Purchaser the Third Party
Consents which are listed on Schedule 2.6(vi) hereto; and
	 
	 	(vii)	 	execute and deliver to Purchaser the Sublicense
in the form of Exhibit H-5.





     (b) Purchaser shall:




	 	(i)	 	execute, acknowledge and deliver to Seller the
Sublease in the form of Exhibit H-1 with respect to the Leased
Premises;
	 
	 	(ii)	 	execute and deliver to Seller the Assignment of
Marks in the form of Exhibit H-2;
	 
	 	(iii)	 	execute and deliver to Purchaser those other
instruments of transfer and conveyance specified in Exhibit
H-3
	 
	 	(iv)	 	execute, acknowledge and deliver to Seller the
Assignment and Assumption Agreement in the form of Exhibit
H-4;
	 
	 	(v)	 	execute and deliver to Seller and the Escrow
Agent the Escrow Agreement;
	 
	 	(vi)	 	make offers of employment to the Listed
Employees;
	 
	 	(vii)	 	caused the wire transfer of funds to Seller in
the amount of Seven Million Six Hundred Fifty Thousand Dollars
($7,650,000);
	 
	 	(viii)	 	caused the wire transfer of funds to Escrow Agent in the
amount of Eight Hundred Fifty Thousand Dollars ($850,000);
	 
	 	(ix)	 	pay or otherwise provide for the payment of
one-half (50%) of all Transfer Taxes incurred in connection
with this Agreement and the transactions contemplated herein;
and
	 
	 	(x)	 	execute and deliver to Purchaser the Sublicense
in the form of Exhibit H-5.





In the event this Agreement is executed but the transactions described above
are not consummated on the date hereof, this Agreement shall be null and void.
The execution by Seller and Purchaser of a closing memorandum shall be
conclusive evidence that the transactions described above have been
consummated.




3. SELLER’S REPRESENTATIONS AND WARRANTIES




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     Seller hereby represents and warrants to Purchaser, as of the date hereof,
as follows, except as set forth in the disclosure schedule (the “Disclosure
Schedule”):



     3.1 Organization and Good Standing. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to conduct its business as it
is now being conducted and to own or use the Acquired Assets in connection with
the WyldFyre Business.



     3.2 Due Execution; No Conflict. This Agreement has been duly executed and
delivered by the Seller and is a valid and binding obligation of the Seller,
fully enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will: (i) conflict with or violate any law, ordinance or
regulation or any decree or order of any court or administrative or other
governmental body which is either applicable to, binding upon or enforceable
against the Seller; or (ii) except where consent is required and obtained,
result in any breach of or default, or trigger any requirement to obtain the
consent of any third party, under any mortgage, lease, promissory note,
license, contract, subcontract, purchase order, indenture, trust or other
instrument or written agreement which is either binding upon or enforceable
against the Seller, which breaches in the aggregate would be reasonably likely
to result in a Material Adverse Effect.



     3.3 No Default. Seller is not in default under the Lease or under any of
the contracts, licenses, instruments, agreements or arrangements listed on
Exhibit B or Exhibit E, which defaults in the aggregate would be reasonably
likely to result in a Material Adverse Effect. Except as set forth on
Disclosure Schedule 3.3, to Seller’s knowledge, no third party is in default
under any contract, license, instrument, agreement or arrangement, which
default would be reasonably likely to result in a Material Adverse Effect.



     3.4 Licenses and Regulations. Except for violations that in the aggregate
would not have a Material Adverse Effect, to Seller’s knowledge, all licenses
required for operation and/or use of the Acquired Assets in connection with the
WyldFyre Business are current and valid. Except for violations that in the
aggregate would not be reasonably likely to have a Material Adverse Effect, to
Seller’s knowledge, Seller is in compliance with all federal, state and local
laws and regulations in respect of the operation and/or use of the Acquired
Assets in connection with the WyldFyre Business.



     3.5 Sufficiency of and Title to Tangible Assets. Except for the Excluded
Assets and shared services provided by Seller’s corporate offices (e.g., legal
services, human resources, accounting services and information technology and
other services listed on Disclosure Schedule 3.5), (i) the Acquired Assets
constitute all of the assets used by Seller to conduct the WyldFyre Business
immediately prior to Closing, and (ii) there are no assets customarily used in,
or reasonably necessary for, the operation of the WyldFyre Business that are
owned by any other person or entity other than Seller that will not be licensed
or leased to Purchaser under valid license or lease agreements to be assigned
or transferred to Purchaser pursuant to this Agreement. Seller is the sole and
exclusive owner of and has good and marketable title to all of the material
tangible assets that are among the Acquired Assets free and clear of any liens,
mortgages, pledges, encumbrances or charges.



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     3.6 WyldFyre Business Intellectual Property.



        (a) Except as set forth on Disclosure Schedule 3.6(a), none of the
WyldFyre Business Intellectual Property constitutes Registered Intellectual
Property Rights. Without limiting the generality of the foregoing, none of the
WyldFyre Business Intellectual Property has been registered for copyright
protection with the US Copyright Office or any foreign office. Seller has not
received any requests to make any such registration.



        (b) Except as set forth in Disclosure Schedule 3.6(b), to Seller’s
knowledge, there is no information, material, fact, or circumstance, that would
render any of the WyldFyre Business Intellectual Property invalid or
unenforceable.



        (c) Each item of WyldFyre Business Intellectual Property is free and clear
of any liens. Except as set forth in Disclosure Schedule 3.6(c), Seller is the
exclusive owner or licensee of all WyldFyre Business Intellectual Property and
has sole and exclusive rights (and Seller is not contractually obligated to pay
any compensation (other than licensing fees and royalties set forth in the
applicable license agreement and referenced in Disclosure Schedule 3.6(c)(i))
to any third party in respect thereof) to the use thereof or the material
covered thereby in connection with the services, Technology or products in
respect of which the WyldFyre Business Intellectual Property is being used.
Disclosure Schedule 3.6(c)(ii) sets forth a complete list of all contracts
(other than assignments of copyright by Seller’s employees, consultants and
individual contributors) pursuant to which a third party has licensed or
transferred any of the WyldFyre Business Intellectual Property to Seller. No
Person who has licensed any Technology or Intellectual Property Rights (which
are included in the WyldFyre Business Intellectual Property) to Seller has
ownership rights or license rights to improvements made by Seller in such
Technology or Intellectual Property Rights.



        (d) All Technology written or created as of the Closing Date and used in
or necessary to the conduct of the WyldFyre Business as it is conducted as of
the Closing Date is included in the Acquired Assets and was written and created
solely by either (i) employees of Seller acting within the scope of their
employment or (ii) third parties who have validly and irrevocably assigned all
of their rights, including Intellectual Property Rights therein, to Seller
(except as set forth in Disclosure Schedule 3.6(d)), and no third party owns or
has any rights to any of the WyldFyre Business Intellectual Property, except
for the parties that Seller has licensed WyldFyre Intellectual Property from,
or to, as listed in Schedules 3.6(c)(ii) and 3.6(f).



        (e) To Seller’s knowledge, all current employees and consultants of Seller
have entered into valid and binding written agreements with Seller sufficient
to vest title in Seller of all WyldFyre Business Intellectual Property,
including all accompanying Intellectual Property Rights, created by such
employee or consultant while employed or engaged by Seller.



        (f) Except for the agreements set forth on Disclosure Schedule 3.6(f),
Seller has not transferred ownership of, or granted any exclusive license of or
right to use, or authorized the retention of any exclusive rights to use or
joint ownership of, any Technology or Intellectual Property Right that is
WyldFyre Business Intellectual Property, to any third party.



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        (g) The execution and delivery of this Agreement by Seller, and the
consummation of the transactions contemplated hereby, will not cause the
forfeiture or termination or give rise to a right of forfeiture or termination
of any WyldFyre Business Intellectual Property Right or of any such license,
sublicense or other contract.



        (h) Following the Closing, Purchaser will be permitted to exercise all of
Seller’s rights under such licenses, sublicenses and other contracts related to
WyldFyre Business Intellectual Property to the same extent Seller would have
been able to had the Transactions not occurred and without the payment of any
additional amounts or consideration other than ongoing fees, royalties or
payments which Seller would otherwise be required to pay and without obtaining
the consent or permission of any party to such licenses, sublicenses and other
contracts except for third party consents set forth in Disclosure Schedules
3.6(h) .



        (i) Seller has not obtained any personal consumer information in
connection with the operation of the WyldFyre Business that requires the
consent of any consumer with regard to its collection and/or dissemination.



        (j) Seller has implemented reasonable procedures that seek to prevent the
contamination of the Technology of WyldFyre Business with Harmful Code, where
“Harmful Code” means any code the primary functionality of which is to damage,
interfere with, or adversely affect computer programs, data files, or hardware
without the consent or intent of the computer user, including self-replacing
and self-propagating programming instructions commonly called “viruses,”
“trojan horses,” and “worms.”



        (k) Except as set forth in Disclosure Schedule 3.6(k), Seller has not been
sued or charged as a defendant in any litigation which involves a claim of
infringement of any Technology or Intellectual Property Rights of any third
party as a result of the operation of the WyldFyre Business. To Seller’s
knowledge, the operation of the Business as of the Closing does not infringe or
misappropriate any Technology or Intellectual Property Right of any third
party, violate any right of any third party (including any right to privacy or
publicity), or constitute unfair competition or trade practices under the laws
of any US state or federal or any foreign jurisdiction, and, except as set
forth in Disclosure Schedule 3.6(b), Seller has not received notice from any
third party claiming that such operation or any act, product, Technology or
service (including Technology or services currently under development) of
Seller infringes or misappropriates any Technology or Intellectual Property
Right of any third party or constitutes unfair competition or trade practices
under the laws of any jurisdiction (nor does Seller have knowledge of any basis
therefor).



        (l) To Seller’s knowledge, no person is infringing or misappropriating any
WyldFyre Business Intellectual Property.



        (m) No WyldFyre Business Intellectual Property or service of WyldFyre
Business is subject to any outstanding decree, order, judgment or settlement
agreement or stipulation that restricts in any manner the use, transfer or
licensing thereof by Seller or may affect the validity, use or enforceability
of such WyldFyre Business Intellectual Property. To Seller’s knowledge, no
WyldFyre Business Intellectual Property or service of WyldFyre Business is
subject to any judicial or government proceeding that is likely to restrict in
any manner the use, transfer or licensing thereof by



11









 





Seller or that is likely to affect the validity, use or enforceability of
such WyldFyre Business Intellectual Property.




        (n) To Seller’s knowledge, all WyldFyre Business Intellectual Property
will be fully transferable, alienable or licensable by Purchaser without
restriction and without payment of any kind to any third party, other than
licensing fees and royalties set forth in the applicable license agreement and
referenced in Disclosure Schedule 3.6(c)(i).



     3.7 Obligations to Related Parties. Except as set forth in Disclosure
Schedule 3.7, Seller has no obligations to the WyldFyre Employees other than
for (a) payment of salary for services rendered, (b) reimbursement for
reasonable expenses incurred on behalf of the Seller and (c) other standard
employee benefits made generally available to all employees. None of the
WyldFyre Employees, or any members of their immediate families, are indebted to
the Seller or, to the Seller’s knowledge, have any direct or indirect ownership
interest in any firm or corporation with which the Seller is affiliated or with
which the Seller has a business relationship, or any firm or corporation which
competes with the Seller, other than passive investments in publicly traded
companies (representing less than one percent of such company) which may
compete with the Seller. To Seller’s knowledge, no WyldFyre Employee or member
of their immediate families, is directly or indirectly, interested in any
contract with the Seller.



     3.8 Taxes and Fees. Except as would not exceed an aggregate amount equal
to five thousand dollars ($5,000), (i) Seller has paid or adequately provided
for any Taxes that have been or will be levied, assessed, or imposed upon any
of the Acquired Assets with regard to any taxable period ending on or prior to
the Closing Date; (ii) Seller has filed or will file all tax returns and
reports required by federal, state and local tax authorities in respect of
Taxes that have been or will be levied, assessed or imposed upon any of the
Acquired Assets with regard to any taxable period prior to or including the
Closing Date; (iii) the returns so filed are correct, true and complete in all
material respects; (iv) there are no ongoing examinations or claims relating to
Taxes payable with regard to the Acquired Assets, and no written notice of any
audit, examination or claim relating to Taxes payable with regard to the
Acquired Assets, whether pending or threatened, has been received; (v) Seller
has not waived any statute of limitations in respect of any Taxes payable with
regard to the Acquired Assets or agreed to any extension of time with respect
to any assessment or deficiency relating to Taxes payable with regard to the
Acquired Assets; (vi) Seller has withheld and paid over to the proper taxing
authorities all Taxes payable with regard to the Acquired Assets (or the
operation thereof) required to have been withheld and paid over, and complied
with all related information reporting and backup withholding requirements,
including maintenance of required records with respect thereto; and (vii) there
are (and as of the Closing Date there will be) no Encumbrances on the Acquired
Assets relating to or attributable to Taxes.



     3.9 No Litigation. Except as set forth in Disclosure Schedule 3.9, there
are no existing suits or litigation, nor, to Seller’s knowledge, suits or
litigation threatened, against the Seller that are related to the WyldFyre
Business or the Acquired Assets.



     3.10 Brokers’ Fees. Seller has no liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which Purchaser could become liable or
obligated.



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     3.11 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3, SELLER
MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY,
IN RESPECT OF ANY OF ITS ASSETS (INCLUDING, WITHOUT LIMITATION, THE ACQUIRED
ASSETS), LIABILITIES (INCLUDING, WITHOUT LIMITATION THE ASSUMED LIABILITIES) OR
OPERATIONS, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, ANY IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE, AND ANY IMPLIED
WARRANTIES REGARDING INCOME POTENTIAL WITH RESPECT TO THE ASSETS, AND ANY SUCH
OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.



     NO REPRESENTATION OR WARRANTY BY THE SELLER IN THIS AGREEMENT, AND NO
INFORMATION CONTAINED HEREIN CONTAINS ANY UNTRUE STATEMENT OF MATERIAL FACT OR
OMITS TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS
CONTAINED HEREIN NOT MISLEADING IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH SUCH
CIRCUMSTANCES WERE MADE.



     PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE EXTENT
SPECIFICALLY SET FORTH IN THIS SECTION 3, PURCHASER IS PURCHASING THE ACQUIRED
ASSETS AND ASSUMING THE ASSUMED LIABILITIES ON AN “AS-IS, WHERE-IS” BASIS.



4. PURCHASER’S REPRESENTATIONS AND WARRANTIES




     Purchaser represents and warrants to Seller as follows:



     4.1 Organization. Purchaser is a Delaware corporation, duly organized,
legally existing and in good standing under the laws of the State of Delaware
and has full power, ability and authority to conduct its business as it is now
conducted, to enter into this Agreement and to carry out the other transactions
and agreements contemplated hereby.



     4.2 Due Authorization. The execution, delivery and performance of this
Agreement and each of the other agreements contemplated hereby and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary company action of Purchaser. This Agreement has
been duly executed and delivered by Purchaser and is a valid and binding
obligation of Purchaser, fully enforceable in accordance with its terms.
Neither the execution and delivery of this Agreement nor the consummation of
the transactions contemplated hereby will: (i) conflict with or violate any
provision of Purchaser’s charter, bylaws, operating agreement or other
governing instruments, or any law, ordinance or regulation or any decree or
order of any court or administrative or other governmental body which is either
applicable to, binding upon or enforceable against Purchaser; or (ii) result in
any breach of or default under any material mortgage, contract, agreement,
indenture, trust, written agreement or other instrument which is either binding
upon or enforceable against Purchaser.



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     4.3 No Litigation. There are no existing suits or litigation pending or
threatened against Purchaser or its properties which could materially affect
the financial condition of Purchaser. Purchaser has not filed any voluntary
petition in bankruptcy, nor been served with or otherwise received notice of
any involuntary petition in bankruptcy having been filed against Purchaser.



     4.4 Purchaser’s Investigation. Purchaser is an experienced investor and
has made its own investigation and analysis of the Acquired Assets and Assumed
Liabilities as Purchaser deems necessary with respect to the condition,
suitability, compliance with law, and prospects for future development of the
Acquired Assets and the WyldFyre Business for Purchaser’s use and all other
aspects of this transaction set forth herein. Purchaser will rely upon its own
(and its consultants’) inspections, investigations and analyses of the Acquired
Assets, Assumed Liabilities and the WyldFyre Business, and, with the exception
of only those express representations and warranties of Seller set forth
herein, upon which Purchaser shall be entitled to rely, Purchaser will not rely
in any way upon any representations, statements, agreements, warranties,
studies, reports, descriptions, guidelines or other information or material
furnished by Sellers or its representatives, whether oral or written, express
or implied, of any nature whatsoever regarding any such matters it being
expressly acknowledged that Seller has not verified the accuracy or
completeness of any such information or the qualification of the persons
preparing such information. Purchaser acknowledges that Seller has not made
any representations or warranties regarding the condition, sufficiency or
suitability of the Acquired Assets or WyldFyre Business, except as expressly
set forth in Section 3 hereof.



5. POST-CLOSING COVENANTS




     Purchaser and Seller agree as follows with respect to the period following
the Closing:



     5.1 General. In case at any time after the Closing any further actions
are necessary to carry out the purposes of this Agreement, each of the Parties
will take such further actions (including the execution and delivery of such
further instruments and documents) as the other Party reasonably may request,
all at the sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefor under Section 6 below).



     5.2 Confidentiality. Except as set forth in Section 5.5, Seller agrees
that for a period of two (2) years from the Closing Date, it will not (i)
divulge any Confidential Information to third parties or (ii) use or permit to
be used any Confidential Information for its own benefit. For this purpose,
“Confidential Information” shall mean all information pertaining to the
Acquired Assets that has been treated by Seller as being confidential,
including without limitation, customer lists. “Confidential Information” shall
not include any information that: (A) is now or subsequently becomes available
to third parties who are not under a duty of confidentiality through no fault
of Seller or (B) is released or approved for release by Purchaser without
restriction.



        Notwithstanding the foregoing paragraph, Seller may disclose Confidential
Information (i) to the extent required by a court of competent jurisdiction or
other governmental authority or otherwise as required by applicable law, rule
or regulation or (ii) on a “need-to-know” basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other financing
sources and their advisors or (iii) in any legal proceedings disclosed in
Section 3.8 of the Disclosure Schedules or that arise in connection with this
Agreement or the transactions contemplated herein and therein.



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        5.3 WyldFyre Employees. Purchaser agrees to offer employment to the
WyldFyre Employees listed on Schedule 5.3 (the “Listed Employees”) effective as
of the Closing Date. Any WyldFyre Employees not listed on Schedule 5.3 or any
Listed Employees who do not accept such employment offer will remain the
responsibility of Seller, subject to Seller’s existing employment policies (the
“Retained Employees”). For a period of one (1) year from the Closing Date,
Seller will not actively solicit for employment any WyldFyre Employees who
accept Purchaser’s offer of employment. For the avoidance of doubt, Seller
will not be deemed to have actively solicited any such employee if such
employee approaches Seller for employment or responds to general solicitations
of employment. In the event Purchaser hires as an employee, or retains as an
independent contractor or otherwise the services of (for more than 100 hours),
any of the Retained Employees during the one (1) year period following the
Closing Date, then Purchaser hereby agrees to so notify Seller within thirty
days and reimburse Seller for any and all severance benefits which Purchaser
may have provided to any such Retained Employee. Purchaser hereby grants to
Seller the right to audit upon ten days prior written notice, such of
Purchaser’s payroll records (and payment records related to Purchaser’s
independent contractors) as it may reasonably request in order to verify
whether Purchaser has so employed or retained the services of any Retained
Employee during the one year period flowing the Closing Date.



     5.4 Hosting.



     (a) Seller agrees that for a period of up to one hundred eighty (180)
days following the Closing Date (the “Hosting Period”), it shall, at the
request of Purchaser, continue to host all WyldFyre Business production
applications as set forth on Disclosure Schedule 5.4(a)(i) (the “Applications”)
at Seller’s Thousand Oaks, California data center, at service levels and with
maintenance in a manner substantially similar to the hosting services Seller
provided to the WyldFyre Business prior to the Closing Date, subject to the
occurrence of extraordinary or force majeure events; provided, that such
hosting services shall not include those shared services provided to the
WyldFyre Business by Seller prior to the Closing Date and set forth on
Disclosure Schedule 5.4(a)(ii) hereto. During such Hosting Period, Purchaser
agrees that it shall not institute any enhancements or modifications to any
Applications without the prior written consent of Seller, which consent shall
not be unreasonably withheld. In addition, Seller shall provide Purchaser with
reasonable migration assistance for the transfer of the Applications to such
data center as shall be designated by Purchaser. During the Hosting Period,
Purchaser hereby grants to Seller a non-exclusive, non-transferable,
royalty-free license to operate and maintain the Applications to such extent as
is reasonably necessary to permit Seller to host Applications as provided by
this Section 5.4. Upon the termination of the Hosting Period, Seller hereby
agrees to delete all copies of such Applications from its servers.



     (b) Seller agrees that for a period of up to two (2) weeks following the
Closing Date, it shall provide to Purchaser the services listed on Schedule
5.4(b) attached hereto. Purchaser agrees to reimburse Seller for the
reasonable costs and expenses associated with such services and agrees to pay
any invoices issued by Seller in connection therewith within ten (10) days of
receipt thereof.



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     (c) Purchaser hereby agrees that so long as it receives data from Houston
Realtors Information Service, Inc. (the “Data”), that Purchaser shall continue
to provide a data feed to Seller’s Realtor.com web site in a manner
substantially similar to the data feed provided to Realtor.com by the WyldFyre
Business prior to the Closing Date.



     5.5 Reservation of Rights. Purchaser hereby acknowledges that (i) Seller
possesses certain know-how regarding the WyldFyre Business Intellectual
Property Rights (the “Know-How”) and (ii) Seller may be using certain portions
of the code constituting WyldFyre Business Intellectual Property Rights in
connection with Seller’s business operations (the “Embedded Code”) other than
the WyldFyre Business. Seller represents that such Embedded Code does not in
the aggregate constitute a substantial portion of the code of the WyldFyre
Business Intellectual Property Rights being transferred hereunder.
Notwithstanding anything to the contrary set forth herein, Purchaser
acknowledges and agrees that Seller hereby retains the right after the Closing
to (a) utilize the Know-How and (b) use, modify, alter, transfer and assign
such Embedded Code and nothing set forth herein shall be deemed to limit or
restrict Seller’s current or future operations (including without limitation
its Realtor.com or Top Producer operations); provided, however, that (i) Seller
hereby agrees that it shall not sell, license or transfer such portions of
Embedded Code separate and apart from its other business operations in a manner
substantially similar to the Intellectual Property Rights being transferred
hereunder, and (ii) Seller hereby agrees that it shall not reconstitute such
Embedded Code so as to replicate a substantial portion of the code constituting
the WyldFyre Business Intellectual Property Rights being transferred hereunder.



     5.6 Payments Received after Closing Date/AR Collection Assistance. To the
extent Seller receives any payments, other than those payments received under
this Agreement, relating to the operation of the WyldFyre Business after the
Closing Date by Purchaser, Seller will promptly remit any such payments to
Purchaser. Purchaser hereby agrees to provide Seller with reasonable
assistance in connection with Seller’s collection of the Accounts Receivables.



6. SURVIVAL, INDEMNIFICATION




     6.1 Survival. All representations and warranties made and given in
Articles 3 and 4 of this Agreement shall survive the execution and delivery of
this Agreement and the Closing and continue until the first anniversary of the
Closing Date at which time all such representations and warranties shall expire
and terminate. The post-closing covenants set forth in Section 5 shall survive
for the periods specified, or if not period is specified, shall survive for the
full period of any applicable statute of limitations; provided, that the
representations and warranties set forth in Sections 3.2, 3.5 and 3.8 shall
survive for the full period of the applicable statute of limitations plus sixty
(60) days.



     6.2 Indemnification.



     (a) Seller shall indemnify, defend and save Purchaser harmless from any
actions, claims, losses, damages, demands or expense (including without
limitation all court costs and reasonable attorney’s fees on account thereof)
suffered or incurred by Purchaser, its successors and permitted assigns:



16









 





        (i) proximately caused by any breach of any representation, warranty,
covenant or other undertaking made by the Seller in this Agreement;



        (ii) related to any Tax payable with respect to the WyldFyre Business, the
Acquired Assets, or other properties or operations of the Seller or of any
member of any affiliated group of which the Seller is a member attributable to
a taxable period ending on or prior to the Closing Date;



        (iii) related to the Excluded Assets and/or Excluded Liabilities;



        (iv) related to obligations stemming from employee benefit, vacation or
retirement plans arising on or prior to the Closing Date; any liabilities
arising on or prior to the Closing Date or as a result of the Closing for
severance, bonuses or any other form of compensation to any employees, agents
or independent contractors of the Seller related to the period on or prior to
the Closing Date, whether or not employed by Purchaser after the Closing and
whether or not arising or under any applicable employee law, benefit plan or
other arrangement with respect thereto; except for such obligations as
Purchaser may incur pursuant to Section 5.3 herein;



        (v) related to any obligation or liability with respect to litigation
arising with respect to the operation of the WyldFyre Business on or prior to
the Closing Date, including without limitation the litigation described on
Schedule 3.9 hereto; or



        (vi) the ownership, use or operation of the Acquired Assets prior to the
Closing Date.



No indemnification shall be payable to Purchaser under clause 6.2(a) until and
after such losses aggregate One Hundred Thousand Dollars ($100,000); however,
in the event such losses exceed $100,000, then indemnification shall be made by
Seller for the full amount of such losses, including the initial $100,000.
Purchaser shall notify Seller promptly of any written actions, claims or
demands against Purchaser of which Seller is responsible hereunder specifying
the basis and amount thereof in reasonable detail.




     (b) Notwithstanding anything contained elsewhere in this Agreement,
Seller’s combined total aggregate liability for indemnification under Section
6.2(a) shall not exceed the Escrow Amount (except for a breach of the
representations and warranties set forth in Section 3.5 or the litigation
described on Schedule 3.9, which total aggregate liability of Seller shall not
exceed the Purchase Price), and such indemnification under Section 6.2(a) of
this Agreement shall constitute Purchaser’s sole and exclusive remedy in
connection with any breach or nonperformance of any representation, warranty,
covenant or other undertaking made by Seller under this Agreement, regardless
of the theory of liability or recovery.



     (c) Purchaser shall indemnify, defend and save Seller harmless from any
actions, claims, losses, damages, demands or expense (including without
limitation all court costs and reasonable attorney’s fees on account thereof)
suffered or incurred by Seller, or its successors and assigns, proximately
caused by:



17









 





        (i) any breach of any representation, warranty, covenant or other
undertaking made by the Purchaser in this Agreement;



        (ii) the ownership, use or operation of the Acquired Assets on or after
the Closing Date; or



        (iii) the failure by Purchaser to perform any obligation hereunder or pay
when due any Assumed Liability.



Seller shall notify the Purchaser promptly of any written actions, claims or
demands against Seller of which the Purchaser is responsible hereunder
specifying the basis and amount thereof in reasonable detail.




     (d) If any third party notifies any Party (the “Indemnified Party”) with
respect to any matter (a “Third-Party Claim”) that may give rise to a claim for
indemnification against the other Party (the “Indemnifying Party”) under this
Section 6, then the Indemnified Party shall promptly (and in any event within 5
business days after receiving notice of the Third-Party Claim) notify the
Indemnifying Party thereof in writing specifying the claimed basis and amount
thereof in reasonable detail. Failure to so notify shall not be deemed a
waiver of, or otherwise affect, the Indemnifying Party’s obligations unless the
Indemnifying Party is materially harmed or prejudiced by such failure to
notify.



        The Indemnifying Party will have the right at any time to assume and
thereafter conduct the defense of the Third-Party Claim with counsel of its
choice; provided, however, that the Indemnifying Party will not consent to the
entry of any judgment on or enter into any settlement with respect to the
Third-Party Claim without the prior written consent of the Indemnified Party
(not to be unreasonably withheld) unless the judgment or proposed settlement
involves only the payment of money damages and does not impose an injunction or
other equitable relief upon the Indemnified Party.



        Unless and until the Indemnifying Party assumes the defense of the
Third-Party Claim as provided in above, however, the Indemnified Party may
defend against the Third-Party Claim in any manner it may reasonably deem
appropriate. In no event will the Indemnified Party consent to the entry of
any judgment on or enter into any settlement with respect to the Third-Party
Claim without the prior written consent of the Indemnifying Party (not to be
unreasonably withheld).



7. LIMITATION OF LIABILITY




IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR
NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, EXCEPT TO
THE EXTENT THAT SUCH DAMAGES ARE INCLUDED IN A THIRD-PARTY CLAIM THAT GIVES
RISE TO A RIGHT OF INDEMNIFICATION UNDER SECTION 6 ABOVE.




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8. GENERAL PROVISIONS




     8.1 No Waivers. None of the Parties shall be deemed to waive any of its
rights, powers or remedies hereunder unless such waiver is in writing and
signed by said party. No delay or omission by any party in exercising any of
said rights, powers or remedies shall operate as a waiver thereof. Nor shall a
waiver signed by any party of any breach of the covenants, conditions or
agreements binding on the other parties on one occasion be construed as a
waiver or consent to such breach on any future occasion or a waiver of any
other covenant, condition, or agreement herein contained.



     8.2 Expenses. Neither of the parties hereto shall have any obligation to
pay any of the fees and expenses of the other party incident to the
negotiation, preparation and execution of this Agreement, or the closing of
this Agreement, including, but not limited to, the fees and expenses of legal
counsel, accountants, investment bankers, consultants and other experts.



     8.3 Publicity. Each of Seller and Purchaser shall obtain the other’s
written consent (such consent not to be unreasonably withheld or delayed) prior
to any publication, presentation, public announcement or press release
concerning the relationship between the parties or the existence or terms of
this agreement, except as may be required by law. In addition, each of Seller
and Purchaser shall not to make any disparaging or derogatory comments
regarding the other party to any third party.



     8.4 Assignment. Neither Party may assign any portion of this Agreement,
voluntarily or involuntarily, including without limitation by operation of law,
without the prior written consent of the other Party, except that (i) either
Party may assign this Agreement to an affiliate of the assignor without the
other Party’s consent in the case of a merger, consolidation, or sale of all or
substantially all of the assignor’s assets with or to an unaffiliated third
party, and (ii) Purchaser may assign this Agreement to any of its subsidiaries.
Any attempt to otherwise assign this Agreement shall be null and void. No
person or entity not a Party hereto shall have any interest herein or be deemed
a third party beneficiary hereof, and nothing contained herein shall be
construed to create any rights enforceable by any other person or third party.



     8.5 Partnership. Nothing herein contained shall be construed as creating
a partnership or joint venture by or between the parties.



     8.6 Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective permitted successors and
assigns.



     8.7 Severability. Any provision of this Agreement held or determined by a
court (or other legal authority) of competent jurisdiction to be illegal,
invalid, or unenforceable in any jurisdiction shall be deemed separate,
distinct and independent, and shall be ineffective to the extent of such
holding or determination without (i) invalidating the remaining provisions of
this Agreement in that jurisdiction or (ii) affecting the legality, validity or
enforceability of such provision in any other jurisdiction.



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     8.8 Captions Headings. Captions and paragraph headings used in this
Agreement are for convenience only and shall not be used to interpret any
provision hereof.



     8.9 Entire Agreement. This Agreement, together with the Exhibits and
Disclosure Schedule, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof, and is intended as the
parties’ final expression and complete and exclusive statement of the terms
thereof, superseding all prior or contemporaneous agreements, representations,
promises and understandings, whether written or oral, and may be amended or
modified only by an instrument in writing signed by both parties.



     8.10 Notices. Any notice required or permitted to be given hereunder
shall be (a) in writing, (b) effective on the first business day following the
date of receipt, and (c) delivered by one of the following means: (i) by
personal delivery; (ii) by prepaid, overnight package delivery or courier
service; or (iii) by the United States Postal Service, first class, certified
mail, return receipt requested, postage prepaid. All notices given under this
Agreement shall be addressed, in the case of Seller, as follows:


Attn: General Counsel

Homestore, Inc.

30700 Russell Ranch Road

Westlake Village, California 91362



All notices given under this Agreement shall be addressed, in the case of
Purchaser, as follows:



Attn: General Counsel

Wyld Acquisition Corp.

One Park Place

Boca Raton, FL 33487



or to such other addresses of which the parties have been advised in writing by
any of the above-described means. Personal delivery to a party or to any
officer, partner, agent, or employee of such party at its address herein shall
constitute receipt. The following shall also constitute receipt: (i) a Party’s
rejection or other refusal to accept notice, and (ii) the inability to deliver
to a Party because of a changed address of which no notice has been received by
the other Party. Notwithstanding the foregoing, no notice of change of address
shall be effective until ten (10) days after the date of receipt thereof. This
Section shall not be construed in any way to affect or impair any waiver of
notice or demand herein provided.




     8.11 Bulk Transfer Laws. Purchaser hereby waives compliance by Seller
with any applicable bulk transfer laws, including, without limitation, the bulk
transfer provisions of the Uniform Commercial Code of any state, or any similar
statute, with respect to the transaction contemplated by this Agreement.



     8.12 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
any principles of conflicts of law. With respect to any litigation arising out
of or relating to this Agreement, the Parties agree that it



20









 





shall be exclusively filed in and heard by the state or federal courts
with jurisdiction to hear such suits located in Los Angeles County, California
and each Party hereby submits to the exclusive jurisdiction of such courts.




     8.13 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same Agreement.



21









 





IN WITNESS WHEREOF, each party has executed or caused its duly authorized
officer to execute this Agreement the day and year first above written.




	 	 	 
	 	 	
HOMESTORE, INC.
	 	 	
By: /s/ Jack Dennison

Name: Jack Dennison

Its: COO
	 	 	
WYLD ACQUISITION CORP.
	 	 	
By: /s/ Stuart Siegel

Name: Stuart Siegel

Its: CEO








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