<PAGE>
As filed with the Securities and Exchange Commission on July 23, 1999
Registration No. 333-80639
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Amendment No. 4
to
FORM S-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
bamboo.com, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 7379 52-2129710
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification Number)
incorporation or Classification Code
organization) Number)
----------------
124 University Avenue
Palo Alto, CA 94301
(650) 325-6787
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------
LEONARD B. McCURDY
Chairman and Chief Executive Officer
bamboo.com, Inc.
124 University Avenue
Palo Alto, CA 94301
(650) 325-6787
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Please send copies of all communications to:
Mario M. Rosati, Esq. Kenton J. King, Esq.
Issac J. Vaughn, Esq. Gregory C. Smith, Esq.
Wilson Sonsini Goodrich & Rosati, P.C. Skadden, Arps, Slate, Meagher & Flom
650 Page Mill Road LLP
Palo Alto, CA 94304 525 University Avenue, Suite 220
(650) 493-9300 Palo Alto, CA 94301
(650) 470-4500
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), please check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than the
underwriting discounts, payable by the Registrant in connection with the sale
of the securities being registered. All amounts are estimates except the SEC
registration fee, the NASD filing fee and the Nasdaq/NMS listing fee.
<TABLE>
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SEC Registration Fee............................................. $ 19,182
NASD Filing Fee.................................................. 7,786
Nasdaq National Market Listing Fee............................... 63,725
Printing Costs................................................... 350,000
Legal Fees and Expenses.......................................... 350,000
Accounting Fees and Expenses..................................... 275,000
Blue Sky Fees and Expenses....................................... 15,000
Transfer Agent and Registrar Fees................................ 25,000
Miscellaneous.................................................... 94,307
----------
Total.......................................................... $1,200,000
==========
</TABLE>
Item 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933. Article VII of our current
Certificate of Incorporation (Exhibit 3.1 hereto) and Article VI of our current
Bylaws (Exhibit 3.3 hereto) provide for indemnification of our directors,
officers, employees and other agents to the maximum extent permitted by
Delaware law. In addition, we have entered into Indemnification Agreements
(Exhibit 10.1 hereto) with our officers and directors. The Underwriting
Agreement (Exhibit 1.1) also provides for cross-indemnification among
bamboo.com and the Underwriters with respect to certain matters, including
matters arising under the Securities Act.
Item 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since our incorporation in November 1995, we have sold and issued the
following securities:
1. On November 2, 1995 we issued 2,240,000 shares of common stock to two
founders: Kevin McCurdy and Lanek Limited, an entity controlled by Len
McCurdy for an aggregate consideration of C$10.00.
2. On December 12, 1996 we issued 112,000 shares of common stock to one
U.S. investor, IBT Ventures and a total of 448,000 shares of common
stock to twelve non-U.S. investors: Peter Field, Lloyd Hope, Jane
McCurdy, Kristy McCurdy, Carol Slavens, Michael Slavens, Nolan
Bederman, Sam Bederman, Lisa Field, Paul Slavens, Invescorp Limited,
and Global Technologies for an aggregate consideration C$200,000.00.
3. On July 31, 1997 we issued 45,024 shares of common stock to six non-
U.S. investors: Lisa Field, Peter Field, Carol Slavens, Michael
Slavens, Paul Slavens, Alevai Developments Limited for an aggregate
consideration of C$18,759.89.
4. On February 12, 1998 we issued 420,000 shares of common stock to three
officers: Leonard McCurdy, Kevin McCurdy, Howard Field for an aggregate
consideration of C$150,000, paid for by services rendered and options
to purchase 1,400,000 shares of common stock at an exercise price
of $.01.
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<PAGE>
5. On March 31, 1998 we issued a total of 616,000 shares of common stock
to fourteen non-U.S. investors: Nolan Bederman, Howard Field, Lisa
Field, Peter Field, Lloyd Hope, Jane McCurdy, Kristy McCurdy, Carol
Slavens, Michael Slavens, Paul Slavens, Lanek Limited, Invescorp
Limited, and Alevai Developments Limited for an aggregate consideration
of C$220,000.
6. On April 8, 1998 we issued a total of 100,800 shares of common stock to
one officer and two non- U.S. investors: Howard Field, Vestmark Limited
and Kristy McCurdy, respectively, for an aggregate consideration of
C$36,000.
7. On April 13, 1998 we issued 112,000 shares of common stock to one
employee, Justin Holmes, for an aggregate consideration of C$40,000.
8. On April 21, 1998 we issued a total of 112,000 shares of common stock
to one officer and one investor: Duncan Fortier and Jascan Investment
Corp., respectively, for an aggregate consideration of C$40,000.
9. On May 22, 1998 we issued a total of 495,600 shares of common stock to
two investors: Pierre G. Lesperance and Mark Stephenson for an
aggregate consideration of C$177,000.
10. On June 28, 1998 we issued 120,000 units for 2.8 shares of common stock
and one warrant to purchase an additional 2.8 shares of common stock to
six investors: Roy Dalton, Jascan Investments Inc., Lanek Limited,
Vince Oddy, Vestmark Limited, and Howard Fieldwhich were exercised for
an aggregate consideration of C$120,000.
11. On September 28, 1998 we issued a total of 37,432 shares of common
stock to three investors: Donna Goldstein, Roseco Incorporated, and
421272 Ontario Limited for an aggregate consideration of C$40,104.
12. On September 30, 1998 we issued 393,000 shares of common stock to one
investor, Matthew Kunzweiler for an aggregate consideration of
C$150,000.
13. On October 20, 1998 we issued a total of 416,500 shares of Series A
preferred stock to eleven investors: Braden L. Berg, Jerome Gotkin,
Peter E. Jaffe, John P. Kelleher, Elizabeth Kunkel, Peter S. Lawrence,
Tamar Kagan Levine, Lewis S. Kunkel, Jr. And Louise R. Kunkel, Barbara
F. Reily, Salomon Smith Barney-Custodian for the Sep IRA of Marc S.
Levine, and V.R. Investments, LP at an aggregate consideration of
$595,000.
14. On November 11, 1998 we issued a warrant to purchase 280,000 shares of
common stock to one investor, RealSelect, Inc. for an exercise price of
$1.43 per share.
15. On December 8, 1998 we issued a total of 70,000 shares of Series A
preferred stock to three U.S. Investors: Mario M. Rosati, W.S.
Investment Company, 98B, and Matthew Kunzweiler and a total of 161,000
shares of Series A preferred stock to seven investors: Acheson Family
Trust, Paula Oprica Aicklen, Charmaine Doyle, Michael J. Hemmer, Carol
Smith Slavens and Darin Vest at an aggregate consideration of
C$330,000.
16. On January 1, 1999 we issued a total of 7,421,536 shares of Class B
redeemable common stock to twenty-eight shareholders: 421272 Ontario
Limited, Alevai Developments Limited, Nolan Bederman, Sam Bederman, Roy
Dalton, Howard Field, Lisa Field, Peter Field, Duncan Fortier, Global
Technology Investments Ltd., Donna Goldstein, Justin Holmes, Lloyd
Hope, IBT Ventures, Jascan Investments Inc., Matthew Kunzweiler, Lanek
Limited, Pierre G. Lesperance, Jane McCurdy, Kristy McCurdy, Kevin B.
McCurdy, Vince Oddy, Cameron Roach, Roseco Incorporated, Carol Smith
Slavens, Michael Slavens, Paul Slavens, and Vestmark Limited as part of
the amalgamation and reorganization of our business as a Delaware
corporation.
17. On February 25, 1999 we issued a total of 120,400 shares of common
stock to two investors: Mario M. Rosati and WS Investment Company, 99A
for an aggregate consideration of $21,500.
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<PAGE>
18. On March 12, 1999 we issued a total of 6,027,194 shares of Series B
preferred stock to eighteen investors: Comstock Net Services, Inc.,
Dain Rauscher Wessels Investors LLC, DigaComm (JVN), L.L.C., Jerome
Gotkin, Melody Kean Haller, Information Associates-II, L.P., IA-II
Affiliates Fund, L.L.C., Intel Corporation, JVC Associates Partnership,
Bill Kunzweiler, Peter S. Lawrence, Michael A. Berke-Trustee of the JV
#1 Trust, Silicon Valley Bancshares, Michael Stefonick, Walden Media
and Information Technology Fund, L.P., Walden EDB Partners, L.P.,
Walden Japan Partners, L.P., and WS Investment Company, 99A for an
aggregate consideration of $12,499,962.37.
19. On May 5, 1999 the Company issued 482,177 shares of Series B preferred
stock to one investor, Walden Media and Information Technology Fund,
L.P. for a total purchase price of $1,000,000.24.
20. On June 11, 1999 the Company entered into an agreement to sell 1,100
shares of its Series C redeemable preferred stock and 1,250,830 shares
of its common stock to five investors: GCW&F Investment Partners, HKL
I, LLC, Jason Strober, VantagePoint Venture Partners III, LP, and
VantagePoint Communications Partners, LP for an aggregate consideration
of $11,000,000.
21. Since our incorporation, we have issued options and stock purchase
rights to purchase an aggregate of 6,620,986 shares of our common stock
under the 1998 Employee Director and Consultant Stock Plan to
employees, directors, and consultants with exercise prices ranging from
$0.1786 to $3.5714.
The issuances of securities described in Items 1-12 were sold Canadian
dollars and are denominated above in Canadian dollars. "C$" means Canadian
dollars.
The issuances of securities described in Items 1, 3-6, 8-11 were sold to
persons who were neither nationals nor residents of the United States and no
facilities or instrumentalities of U.S. interstate commerce were used in
connection with any offer or sale thereof.
The number of shares of Series A and Series B preferred stock described in
Items 13, 15, 18 and 19 are adjusted to reflect the number of shares of common
stock into which the preferred stock will convert upon the consummation of the
offering.
The issuance of the other above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of such
Securities Act as transactions by an issuer not involving any public offering.
In addition, the issuances described in Item 20 were deemed exempt from
registration under the Securities Act in reliance upon Rule 701 promulgated
under the Securities Act. The recipients of securities in each such transaction
represented their intentions to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates and warrants issued
in such transactions. All recipients had adequate access, through their
relationships with us, to information about us.
Item 16. EXHIBITS.
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1.1 Form of Underwriting Agreement.**
3.1 Certificate of Incorporation of Registrant as currently in effect.*
3.2 Form of Certificate of Incorporation of Registrant to be filed
immediately following the closing of the offering made under this
Registration Statement.*
3.3 Articles of Amalgamation of Jutvision Canada, Inc. (bamboo.com) dated
January 1, 1999.*
3.4 Articles of Amendment of Jutvision Canada, Inc. (bamboo.com) dated
April 23, 1999.*
3.5 Articles of Amendment of bamboo.com Canada, Inc. dated June 7, 1999.*
3.6 Amended and Restated Conversion and Pairing Agreement with bamboo.com
Canada, Inc. dated as of June 7, 1999.*
3.7 Bylaws of Registrant as currently in effect.*
3.8 Form of Bylaws of Registrant to be adopted immediately following the
closing of the offering made under this Registration Statement.*
</TABLE>
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<PAGE>
<TABLE>
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3.9 Series C Redeemable Preferred Stock Purchase Agreement dated as of
June 11, 1999.*
4.1 Specimen Common Stock Certificate.**
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.*
9.1 Share Contribution, Subscription, Right of First Refusal and Voting
Agreement Dated Jan. 1, 1999.*
10.1 Form of Indemnification Agreement between the Registrant and each of
its directors and officers.*
10.2 1998 Employee, Director and Consultant Stock Plan and the form
agreement thereunder, as currently in effect.*
10.3 Amended and Restated 1998 Employee, Director and Consultant Stock Plan
and the Form Agreement thereunder to be adopted immediately upon the
effectiveness of the Registration Statement (which supersedes the
Amended and Restated 1998 Employee, Director and Consultant Stock Plan
originally filed on June 14).*
10.4 1999 Employee Stock Purchase Plan and Form of Agreements thereunder
(which supersedes the 1999 Employee Stock Purchase Plan and form of
agreements thereunder originally filed on June 14).*
10.5 Investors' Rights Agreement dated as of March 12, 1999 among
bamboo.com and certain investors.*
10.6 Joint Services Agreement with RealSelect, Inc. dated as of Nov. 11,
1998, as amended June 11, 1999.+*
10.7 Distribution Agreement with Microsoft Corporation dated as of March
16, 1999.+*
10.8 Distribution Agreement with HomeSeekers.com, Inc. dated as of Nov. 20,
1998.+*
10.9 Distribution Agreement with Homes.com, a division of PCL Media
Limited, dated as of May 10, 1999.+*
10.10 Form of Distribution Agreement with multiple listing services.*
10.11 Form of bamboo.com Approved Web Pro Agreement.*
10.12 Form of Distribution and Co-marketing Agreement with real estate
brokerage companies.*
10.13 Line of Credit with Silicon Valley Bank dated April 16, 1999.*
10.14 Master lease agreement with Silicon Valley Bank dated March 24, 1999.*
10.15 Sublease with Pete's Brewing Company dated November 2, 1998.*
10.16 Sublease with Pete's Brewing Company dated December 1, 1998.*
10.17 Sublease with Information Access Inc. dated Nov. 15, 1998, and
amendment dated Feb. 22, 1999.*
10.18 Service Provider Agreement with TBI Imaging dated Nov. 23, 1998 (also
form of).+*
10.19 Employment Agreement with Leonard B. McCurdy.*
10.20 Employment Agreement with Kevin B. McCurdy.*
10.21 Employment Agreement with Andrew P. Laszlo.*
10.22 Employment Agreement with Howard D. Field.*
10.23 Amended and Restated Employment Agreement with Mark R. Searle dated
June 1, 1999 (which supersedes the Employment Agreement with Mark R.
Searle originally filed on June 14, 1999).*
10.24 Employment Agreement with Randall I. Bresee.*
10.25 Employment Agreement with Andrew J. Aicklen.*
10.26 Sublease with Transmode Consultants Inc./Traxis Inc. dated May 27,
1999.*
10.27 Distribution and Co-Marketing Agreement with The Equity Group dated
May 5, 1999.*
10.28 Distribution and Co-Marketing Agreement with Northside Realty dated
June 3, 1999.+*
10.29 Distribution and Co-Marketing Agreement with Carlson Real Estate dated
May 19, 1999.+*
10.30 Sales and Co-Marketing Agreement with Metropolitan Regional
Information Systems, Inc. dated June 9, 1999.+*
10.31 Distribution and Co-Marketing Agreement with Sudler/Beliard Gordon
dated May 28, 1999.+*
</TABLE>
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<PAGE>
<TABLE>
<C> <S>
10.32 Distribution and Co-Marketing Agreement with Keller Williams Southwest
Region dated May 25, 1999.*
10.33 Distribution and Co-Marketing Agreement with Pacific Union Real Estate
Group, Inc. dated June 9, 1999.+*
10.34 Services Agreement with The Prudential Real Estate Affiliates, Inc.
dated June 8, 1999.+*
10.35 Non-Exclusive Distribution Agreement with Multiple Listing Service of
Northern Illinois dated May 26, 1999.+*
10.36 Distribution and Co-Marketing Agreement with Keller Williams Fox &
Associates dated June 10, 1999.+*
10.37 Distribution Agreement with Toronto Real Estate Board dated April 14,
1999.+*
10.38 Distribution and Co-Marketing Agreement with John L. Scott, Inc. dated
April 7, 1999.+*
10.39 Distribution Agreement with Windermere Real Estate Services Company
dated March 17, 1999.+*
10.40 Distribution Agreement with St. Joe Real Estate Services, Inc., d/b/a
Arvida Realty Services dated March 5, 1999.+*
10.41 Distribution Agreement with GTE Enterprise Solutions dated January 12,
1999 as amended January 19, 1999.+*
10.42 Agreement with Loop Ventures, Inc. dated Nov. 6, 1998.+*
10.43 Access Agreement with Cendant Corporation dated July 15, 1999.+
10.44 RE/MAX Approved Supplier License Agreement with RE/MAX International,
Inc. dated April 5, 1999.+*
21.1 Subsidiaries of Registrant.*
23.1 Consents of Accountants.*
23.2 Consents of Attorneys.*
24.1 Power of Attorney (see page II-5).*
27.1 Financial Data Schedule.*
</TABLE>
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*Previously Filed
**To be filed by amendment
+Confidential Treatment Requested
(b)Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts
Other schedules are omitted because they are not applicable, or because the
information is included in the Financial Statements or the Notes thereto.
Item 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-5
<PAGE>
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial BONA FIDE offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 4 to the Registration Statement on Form S-1
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Palo Alto, State of California on July 23, 1999.
/s/ Randall I. Bresee
By: _________________________________
Randall I. Bresee
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
* Leonard B. McCurdy Chief Executive Officer, July 23, 1999
______________________________________ Chairman and Director
Leonard B. McCurdy
* Kevin B. McCurdy Executive Vice President July 23, 1999
______________________________________ and Director
Kevin B. McCurdy
/s/ Randall I. Bresee Chief Financial Officer July 23, 1999
______________________________________
Randall I. Bresee
* Duncan Fortier Director July 23, 1999
______________________________________
Duncan Fortier
* John Moragne Director July 23, 1999
______________________________________
John Moragne
* Philip Sanderson Director July 23, 1999
______________________________________
Philip Sanderson
* James Marver Director July 23, 1999
______________________________________
James Marver
*By: /s/ Randall I. Bresee
______________________________________
Randall I. Bresee
(Attorney-In-Fact)
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.**
3.1 Certificate of Incorporation of Registrant as currently in effect.*
3.2 Form of Certificate of Incorporation of Registrant to be filed
immediately following the closing of the offering made under this
Registration Statement.*
3.3 Articles of Amalgamation of Jutvision Canada, Inc. (bamboo.com) dated
January 1, 1999.*
3.4 Articles of Amendment of Jutvision Canada, Inc. (bamboo.com) dated
April 23, 1999.*
3.5 Articles of Amendment of bamboo.com Canada, Inc. dated June 7, 1999.*
3.6 Amended and Restated Conversion and Pairing Agreement with bamboo.com
Canada, Inc. dated as of June 7, 1999.*
3.7 Bylaws of Registrant as currently in effect.*
3.8 Form of Bylaws of Registrant to be adopted immediately following the
closing of the offering made under this Registration Statement.*
3.9 Series C Redeemable Preferred Stock Purchase Agreement dated as of
June 11, 1999.*
4.1 Specimen Common Stock Certificate.**
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.*
9.1 Share Contribution, Subscription, Right of First Refusal and Voting
Agreement Dated Jan. 1, 1999.*
10.1 Form of Indemnification Agreement between the Registrant and each of
its directors and officers.*
10.2 1998 Employee, Director and Consultant Stock Plan and the form
agreement thereunder, as currently in effect.*
10.3 Amended and Restated 1998 Employee, Director and Consultant Stock Plan
and the Form Agreement thereunder to be adopted immediately upon the
effectiveness of the Registration Statement (which supersedes the
Amended and Restated 1998 Employee, Director and Consultant Stock Plan
originally filed on June 14).*
10.4 1999 Employee Stock Purchase Plan and Form of Agreements thereunder
(which supersedes the 1999 Employee Stock Purchase Plan and form of
agreements thereunder originally filed on June 14).*
10.5 Investors' Rights Agreement dated as of March 12, 1999 among
bamboo.com and certain investors.*
10.6 Joint Services Agreement with RealSelect, Inc. dated as of Nov. 11,
1998, as amended June 11, 1999.+*
10.7 Distribution Agreement with Microsoft Corporation dated as of March
16, 1999.+*
10.8 Distribution Agreement with HomeSeekers.com, Inc. dated as of Nov. 20,
1998.+*
10.9 Distribution Agreement with Homes.com, a division of PCL Media
Limited, dated as of May 10, 1999.+*
10.10 Form of Distribution Agreement with multiple listing services.*
10.11 Form of bamboo.com Approved Web Pro Agreement.*
10.12 Form of Distribution and Co-marketing Agreement with real estate
brokerage companies.*
10.13 Line of Credit with Silicon Valley Bank dated April 16, 1999.*
10.14 Master lease agreement with Silicon Valley Bank dated March 24, 1999.*
10.15 Sublease with Pete's Brewing Company dated November 2, 1998.*
10.16 Sublease with Pete's Brewing Company dated December 1, 1998.*
10.17 Sublease with Information Access Inc. dated Nov. 15, 1998, and
amendment dated Feb. 22, 1999.*
10.18 Service Provider Agreement with TBI Imaging dated Nov. 23, 1998 (also
form of).+*
</TABLE>
<PAGE>
<TABLE>
<C> <S>
10.19 Employment Agreement with Leonard B. McCurdy.*
10.20 Employment Agreement with Kevin B. McCurdy.*
10.21 Employment Agreement with Andrew P. Laszlo.*
10.22 Employment Agreement with Howard D. Field.*
10.23 Amended and Restated Employment Agreement with Mark R. Searle dated
June 1, 1999 (which supersedes the Employment Agreement with Mark R.
Searle originally filed on June 14, 1999).*
10.24 Employment Agreement with Randall I. Bresee.*
10.25 Employment Agreement with Andrew J. Aicklen.*
10.26 Sublease with Transmode Consultants Inc./Traxis Inc. dated May 27,
1999.*
10.27 Distribution and Co-Marketing Agreement with The Equity Group dated
May 5, 1999.*
10.28 Distribution and Co-Marketing Agreement with Northside Realty dated
June 3, 1999.+*
10.29 Distribution and Co-Marketing Agreement with Carlson Real Estate dated
May 19, 1999.+*
10.30 Sales and Co-Marketing Agreement with Metropolitan Regional
Information Systems, Inc. dated June 9, 1999.+*
10.31 Distribution and Co-Marketing Agreement with Sudler/Beliard Gordon
dated May 28, 1999.+*
10.32 Distribution and Co-Marketing Agreement with Keller Williams Southwest
Region dated May 25, 1999.*
10.33 Distribution and Co-Marketing Agreement with Pacific Union Real Estate
Group, Inc. dated June 9, 1999.+*
10.34 Services Agreement with The Prudential Real Estate Affiliates, Inc.
dated June 8, 1999.+*
10.35 Non-Exclusive Distribution Agreement with Multiple Listing Service of
Northern Illinois dated May 26, 1999.+*
10.36 Distribution and Co-Marketing Agreement with Keller Williams Fox &
Associates dated June 10, 1999.+*
10.37 Distribution Agreement with Toronto Real Estate Board dated April 14,
1999.+*
10.38 Distribution and Co-Marketing Agreement with John L. Scott, Inc. dated
April 7, 1999.+*
10.39 Distribution Agreement with Windermere Real Estate Services Company
dated March 17, 1999.+*
10.40 Distribution Agreement with St. Joe Real Estate Services, Inc., d/b/a
Arvida Realty Services dated March 5, 1999.+*
10.41 Distribution Agreement with GTE Enterprise Solutions dated January 12,
1999 as amended January 19, 1999.+*
10.42 Agreement with Loop Ventures, Inc. dated Nov. 6, 1998.+*
10.43 Access Agreement with Cendant Corporation dated July 15, 1999.+
10.44 RE/MAX Approved Supplier License Agreement with RE/MAX International,
Inc. dated April 5, 1999.+*
21.1 Subsidiaries of Registrant.*
23.1 Consents of Accountants.*
23.2 Consents of Attorneys.*
24.1 Power of Attorney (see page II-5).*
27.1 Financial Data Schedule.*
</TABLE>
- --------
*Previously Filed
**To be filed by amendment
+Confidential Treatment Requested
(b)Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts
Other schedules are omitted because they are not applicable, or because the
information is included in the Financial Statements or the Notes thereto.
<PAGE>
Exhibit 10.43
ACCESS AGREEMENT
----------------
THIS ACCESS AGREEMENT (the "Agreement") is entered into as of July 15,
1999 (the "Effective Date"), by and between bamboo.com.Inc, a Delaware
corporation with an office located at 124 University Avenue #202, Palo Alto, CA
94301 ("bamboo.com") and Cendant Corporation, a Delaware corporation with an
office located at 6 Sylvan Way, Parsippany, NJ 07054 ("Company").
Bamboo.com uses the Bamboo.com Technology and provides the Production
Services to its customers on a nationwide basis. In the event that Company, or
a Company affiliate establishes a real estate Super Site which aggregates
property listings contained on the web sites of the Franchisors for the Real
Estate Systems and the Super Site offers the opportunity to associate images
with such listings, bamboo.com desires that any such listings of the Real
Estate Systems for which bamboo.com provides Bamboo.com Images shall display
the Bamboo.com Images, on a non-exclusive basis, on the Super Site. In
consideration of the mutual promises and covenants contained herein, and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS
-----------
1.1 "Grant Fees" means the fees bamboo.com will pay to Company, as
------------
provided in Section 4.1.
1.2 "Bamboo.com Image" means an electronic image of a property
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produced by or on behalf of Bamboo.com through the use of Bamboo.com Technology.
1.3 "Bamboo.com Technology" means the software and hardware owned
-----------------------
or liscensed by Bamboo.com, including Bamboo.com Images and the Bamboo.com for
Java Software, used to capture, process and view Bamboo.com Images.
1.4 "Franchisee" means any Franchisee of the Real Estate Systems
------------
including the liscensed brokers and sales associates of the Franchisee.
1.5 "Real Estate Systems" means the CENTURY 21, ERA and Coldwell
---------------------
Banker real estate brokerage franchise systems.
1.6 "Franchisors" mean the franchisors of the Real Estate Systems.
-------------
1.7 "Commencement Date" means the date on which the earlier of
-------------------
the following events occurs (i) all of the Real Estate System Web Sites are
capable and available to receive links to or postings of Bamboo.com Images and
integrating such Bamboo.com Images with listings or (ii) the Super Site is
launched, includes aggregated property listings contained on the Real Estate
System Web Sites and offers the opportunity to associate images with such
listings.
1.8 "Confidential Information" means any trade secrets,
--------------------------
confidential data or confidential information oral or written relating to or
used in the business of the other party (the "Disclosing Party"), that a party
may obtain from the Disclosing Party during the Term (the "Confidential
Information"). The terms of this Agreement will constitute Confidential
Information.
1.9 "Real Estate System Web Sites" means the collection of HTML
------------------------------
documents residing on servers operated by or for Company or its affiliates and
currently accessible on or after the Effective Data by Franchisees or the public
via the Internet at the following URLs: http://www.coldwellbanker.com:
-----------------------------
http://www.era.com and http://www.century21.com.
- ------------------ ------------------------
1.10 "Production Services" means the services provided by or on
---------------------
behalf of bamboo.com in producing the Bamboo.com Images through the use of
Bamboo.com Technology.
1.11 "Service Provider Network" means the network of individuals
--------------------------
throughout bamboo.com's service area in North America with whom bamboo.com has
entered into agreements to capture images at designated sites on bamboo.com's
behalf.
1.12 "Super Site" means the contemplated real estate Internet
------------
portal which may aggregate property listings contained on the Real Estate System
Web Sites.
1.13 "Term" means the Term of this as set forth in Section 6.
------
1.14 "Virtual Tour Images" means any 360/0/, three dimensional or
virtual tour or virtual walkthrough utilizing images.
2. GRANT OF ACCESS TO BAMBOO.COM
To the extent the Real Estate System Web Sites offer the opportunity
to associate Virtual Tour Images with property listings contained on any or all
of the Real Estate System Web Sites, any such listings of the Real Estate System
Web Sites for which bamboo.com provides Bamboo.com Images shall display (i.e.
link to or receive postings of) the Bamboo.com Images, on a non-exclusive basis,
on the Real Estate System Web Sites. The parties acknowledge that as of the date
of this Agreement Virtual Tour Images of such property listings on such Real
Estate System Web Sites are offered and that the parties shall cooperate with
each other in good faith in an effort to display Bamboo.com Images as provided
in the preceding sentence by November 30, 1999. Further, in the event that
Cendant or a Cendant affiliate establishes a Super Site which aggregates
property listings contained on the Real Estate System Web Sites and the Super
Site offers the opportunity to associate images with such listings, any such
listings of the Real Estate System Web Sites for which bamboo.com provides
Bamboo.com Images shall display (i.e. link to or receive postings of) the
Bamboo.com Images, on a non-exclusive basis, on the Super Site.
[*] Confidential treatment has been requested for potions of this exhibit.
The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as *****. A complete
version of this exhibit has been filed separately with the Securities
Exchange Commission.
<PAGE>
3. BANNER AD PLACEMENT; PROVISION OF PRODUCTION SERVICES
3.1 Banner Ads. Company will place banner ads on the Super Site which
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ads shall appear on prominent web pages of the Super Site (except that no
banners shall be placed on any web pages of the Super Site which pages are
designated to or used for the purpose of joint or co-marketing activities with
parties other than bamboo.com). The parties will cooperate to establish the
precise size and placement of such banner ads. When clicked on, these banner
ads shall link directly to HTML pages hosted and designated by bamboo.com that
will focus on the promotion of bamboo.com and its products. In no event shall
such banner ads link to any web site other than HTML pages hosted and
designated by bamboo.com or shall any such banner ad links be utilized to
offer for sale, market or otherwise promote the sale of products or services
other than the Production Services. Nothing contained in this Agreement shall
entitle bamboo.com to place any banner ads on the Real Estate System Web
Sites.
3.2 Press Releases. There will be a joint press release issued, which
--------------
the parties in good faith will endeavor to issue on July 15, 1999, approved by
both parties, which approvals shall not be unreasonably withheld, indicating
the relationship entered into by and between Company and bamboo.com under this
Agreement, but in no event later than July 21, 1999. Additionally and subject
to the prior approval of Company, not to be unreasonably withheld, bamboo.com
may (i) briefly describe the terms of this Agreement in amendments (the
"Amendments") to bamboo.com's registration statement to be filed in connection
with the sale of bamboo.com's common stock in a firm commitment underwriting
(the "Bamboo.com IPO"); provided, however, in no event shall such description
include any more information or descriptions than are (x) required by
applicable law or regulations as they relate to such Amendments or (y)
disclosed in any press release issued under this Section 3.2; and (ii) if
legal counsel for bamboo.com advises, and subject to the prior approval of
Company, not to be unreasonably withheld, attach a redacted version of this
Agreement as an exhibit to the Amendments, provided that the bamboo.com seeks
confidential treatment of this Agreement with the Securities and Exchange
Commission. Any other press announcement by either party regarding the subject
matter of this Agreement will be subject to the other party's approval, which
shall not be withheld unreasonably. [*].
3.3 Customer Sales and Billing. Bamboo.com is responsible for and
--------------------------
will manage and coordinate any and all sales of Production Services, including
by means of bamboo.com's direct sales force, to its customers. Bamboo.com will
be responsible for receiving and fulfilling orders for Production Services and
will assume all costs and responsibility for invoicing and collecting revenue
for all customer sales. Bamboo.com will maintain a full-service, live customer
call center, available seven days per week, at reasonable hours, to handle
inquires from prospective customers and customers alike.
3.4 Image Capturing, Processing and Linking. Bamboo.com will have
---------------------------------------
sole responsibility for, and will bear all costs associated with, capturing
images at designate sites through its Service Provider Network and processing
captured images to create Bamboo.com Images. Subject to Section 2 above,
Bamboo.com will provide HTML links from the Super Site and the Real Estate
System Web Sites to bamboo's servers so that users searching listings on the
Super Site or any Real Estate System Web Site will be able to view any
Bamboo.com Image associated with a listing that appears in the solution set
generated by the user's search query. Notwithstanding anything to the contrary
in this Agreement, in the event that Company, in its reasonable discretion,
determines that posting of Bamboo.com Images to the Super Site or the Real
Estate System Web Sites is preferable to linking, than, subject to Section
5.2, bamboo.com will post images to the Super Site or Real Estate Web Sites.
Company will permit linking of the Super Site and Real Estate System Web Sites
to Bamboo.com Images, or posting of Bamboo.com images to the Super Site or
Real Estate System Web Sites, as the case may be, and the parties will use
commercially reasonable efforts to work together to expeditiously implement,
and maintain throughout the Term, a system whereby bamboo.com will be capable
of linking or posting, as the case may be, to the Super Site and Real Estate
System Web Sites, subject to Section 2 above. Any Bamboo.com Images posted or
linked to the Super Site and the Reals Estate System Web Sites will fully
render within a reasonable time comparable to similar services, unless a delay
in such rendering is caused by the internet or the systems of Company or
Company affiliates.
3.5 Prominence of Promotion. A third-party provider of Virtual Tour
-----------------------
Images may be able to obtain more favorable treatment than bamboo.com, online
or offline, in marketing on the Super Site and in other marketing or
promotional materials generated by Company or Company affiliates; provided
that bamboo.com will be granted a right of first refusal to participate on the
same basis. To the extent that Company or Company affiliates publish in any
media a list of vendors for the Super Site, as reasonably determined by
Company in good faith, Company may include bamboo.com in such list during the
Term.
3.6 Bamboo.com Promotion Obligations. At Company's election,
--------------------------------
Bamboo.com will include and display the logo of the designated Company
affiliate relating to the Super Site in any page on bamboo.com's Web site that
lists, and displays the logos of, other alliances of bamboo.com. In addition,
at the sole election of Company, bamboo.com will permit Company or a
designated Company affiliate to make a presentation at any regularity
scheduled meeting (generally, held on a quarterly basis) of Regional Directors
of bamboo.com.
3.7 Solution Set Symbol. Company shall ensure that, when a listing
-------------------
solution set queried on the Super Site or a Real Estate System Web Site
includes a listing associated with a Bamboo.com Image, there shall appear
beside the listing a generic symbol selected by Company indicating that the
listing is associated with Virtual Tour Images. In no event shall any such
symbol as may be placed on the Real Estate System Web Sites include or
identify "bamboo.com" or imply any affiliation with or to bamboo.com.
4. FEES; BANNER PURCHASES
4.1 [*] In consideration of the [*] afforded to bamboo.com in
Section 2 above, bamboo.com will pay Company a [*] in the aggregate amuont of
[*] as follows: [*] Said fee is fully earned upon payment by bamboo.com.
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[*] Confidential Treatment Requested.
<PAGE>
4.2. Banner Purchases. In the aggregate, Bamboo.com will purchase
----------------
from Company (or Company's affiliate as may be designated by Company) a [*]
banner ads per year over two years. [*] Bamboo.com banner ads will not exceed
5% of Super Site ad Inventory in a given month. Should the purchased banner
ads exceed 5% of Super Site Inventory, the excess ads will be applied at
subsequent period(s) when the addition of those ads to the scheduled ad buy
for the particular subsequent month does not exceed the 5% threshold;
provided, however, that the deferral of such ads will in no way modify the
timing or amount of monthly payments provided for in the first sentence of
this Section 4.2.
5. PROPRIETARY RIGHTS
5.1 Bamboo.com Images.
-----------------
(a) All Bamboo.com Technology, including without
limitation all Bamboo.com Images are, and at all times will remain, the
exclusive property of bamboo.com, and no provision of this Agreement implies
any transfer to Company or Company affiliates of any ownership interest in any
Bamboo.com Technology.
(b) Bamboo.com hereby grants to Company or the designated
Company affiliate a nonexclusive, worldwide, royalty-free, non-transferable
license to include on the Super Site and Real Estate System Web Sites links to
Bamboo.com Images on bamboo.com's server solely for the purposes contemplated
in this Agreement. Except with respect to designated Company affiliates, the
foregoing license does not include any right to grant or authorize
sublicenses. In the event that Company requires bamboo.com to post the
Bamboo.com Images to the Super Site and the Real Estate System Web Sites,
bamboo.com grants Company and/or designated Company affiliates the licenses
set forth in Exhibit A attached hereto.
5.2 Trademarks.
----------
(a) Bamboo.com owns and at all times will continue to own
the trademarks, service marks and/or trade names BAMBOO.COM and the bamboo.com
logo, as well as any name or mark bamboo.com may subsequently adopt as a trade
name or to designated the Production Services (collectively, the "Bamboo.com
Marks"), and Company will not take any actions inconsistent with bamboo.com's
ownership rights.
(b) Bamboo.com specifically acknowledges that this
Agreement does not confer upon bamboo.com any interest in or right to use any
trademark, service mark or other intellectual property right of Company or any
Company affiliate (collectively referred to as the "Company Marks") in
connection with Agreement unless bamboo.com receives the prior written consent
of Company which consent Company may grant or withhold in its sole discretion;
provided, however, that, subject to the prior approval of Company, not to be
unreasonably withheld, bamboo.com may include the logos of the Real Estate
Systems in the amendments to the registration statement filed in connection
with bamboo.com's IPO. Bamboo.com further agrees that upon termination of this
Agreement, bamboo.com shall immediately cease and discontinue all use of the
Company Marks, including the Super Site Marks. Further, if Bamboo.com wishes
to utilize the Company Marks in advertising or promotional materials, it must
submit such materials to Company for final approval before utilizing them. In
no event may Bamboo.com or any affiliated or associated person or entity
utilize the Company Marks in connection with any products or services other
than the Production Services as contemplated in the Agreement. Bamboo.com
further acknowledges that this Agreement does not create or grant any rights
in bamboo.com to use any intellectual property rights owned or controlled by
any Franchisee or its affiliates, not does Company have any right to grant any
such rights.
(c) Subject to the restrictions set forth herein, the
parties contemplate that bamboo.com shall have the right to use the logo of the
designated Company affiliate relating to Super Site, if any, subject to the
consent of Company or such Company affiliate in its sole discretion.
(d) Subject to the restrictions set fort herein, bamboo.com
hereby grants Company and designated Company affiliates a nonexclusive,
worldwide, royalty-free, fully paid up, non-transferable right to use the
Bamboo.com Marks, during the Term, with bamboo.com's prior written approval,
which bamboo.com will not unreasonably withhold, solely in connection with
Section 3.1 above.
(e) Further, subject to the restrictions set forth herein,
each party only use the Bamboo.com Marks or Company Marks, as the case maybe, as
expressly permitted herein and agrees to use such marks in a manner
commensurate with the style, appearance and quality of the other party's
services and/or products bearing such marks. Notwithstanding anything contained
in this Agreement to the contrary in no event shall bamboo.com use the Company
Marks to indicate that bamboo.com has the right to include Bamboo.com Images on
the Real Estate System Web Site or that, except with respect to the banner
purchases for the Super Site provided for in Section 3.1 or access to Bamboo.com
Images provided for in Section 2, Bamboo.com entered into or maintains any
marketing or promotion arrangement with Company or Company affiliates to be
marketed or promoted to the Franchisees of the Real Estate Systems or any other
brand or franchised system of Cendant or a Cendant affiliate.
6. TERM AND TERMINATION
--------------------
6.1 Term. Unless earlier terminated as set forth below, this
----
Agreement will become effective upon the Effective Date and shall continue for
a period of two (2) years from the Commencement Date; provided, however, that,
in the event that the event described in Section 1.7(D) does not occur within
two (2) years from the Commencement Date, this Agreement shall terminate three
(3) years and three (3) months after the Effective Date. Notwithstanding
anything contained in this Agreement to the contrary, the Term will be
automatically extended to the extent required to expend all of the purchased
banner ads consistent with the 5% Inventory limitation described above in
Section 4.2; provided, however, that no such extension shall be provided if
this Agreement is terminated by Company pursuant to Section 6.2 below. In no
event will the Term extend beyond three (3) years and three (3) months from
the Effective Date.
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[*] Confidential Treatment Requested.
<PAGE>
6.2 Termination For Breach. This Agreement will terminate in the
----------------------
event a party materially breaches any material term, condition or
representation of this Agreement or materially fails to perform any of its
material obligations or undertaking hereunder, and fails to remedy such
default within sixty (60) days (ten (10) days in the event of a payment
default) after being notified by the non-breaching party of such breach or
failure. Without regard to the foregoing, Company may terminate this Agreement
immediately and without liability in the event that Bamboo.com [*] except with
respect to the banner purchases for the Super Site provided for in Section 3.1
or access to Bamboo.com images provided for in Section 2.
6.3 Survival Of Certain Terms. The provisions of Section 5.1 (a),
-------------------------
5.2 (a) and (b), 6.1, 6.3, 7,8,9,10 and Sections (c) and (e)- (h) of Exhibit A
will survive the expiration or termination of this Agreement for any reason.
All other rights and obligation of the parties will cease upon expiration or
termination of this Agreement. Upon termination, (i) Company and Bamboo.com
will cease all use of marks of the other party and (ii) Company will cease all
use of the Bamboo.com Technology and will purge all such Bamboo.com Technology
from its servers,systems and products.
7. CONFIDENTIALITY
---------------
Each party agrees to treat the other party's Confidential Information
with the same degree of care as it maintains its own information of a similar
nature. Each party will use at least the same procedures and degree of care
which it uses to protect the confidentiality of its own Confidential Information
of like importance, and in no event less than reasonable care.
8. REPRESENTATIONS AND WARRANTIES
-------------------------------
8.1 Each party represents and warrants to the other that (i) it is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) it has full right, power and
authority to enter into this Agreement and to perform all of its obligation
hereunder, (iii) this Agreement constitutes its valid and binding obligation,
enforceable against it in accordance with its terms; and (iv) its execution,
delivery and performance of this Agreement will not result in a breach of any
material agreement or understanding to which it is a party or by which it or any
of its material properties may be bound or constitute a violation of any
applicable law or regulation.
8.2 Bamboo.com represents and warrants that (i) bamboo.com has all
necessary rights, permissions and authorizations to use and permit Company
and/or Company affiliates to use Bamboo.com Technology as contemplated by this
Agreement; (ii) neither Bamboo.com Technology nor Company's or Company
affiliates' use thereof as contemplated under this Agreement does or will
violate any proprietary intellectual property rights of any third party; and
(iii) Bamboo.com Technology shall to the extent provided to and utilized by
Company or Company affiliates conform, without cost to Company or Company
affiliates, to the reasonable applicable specifications and meet the
reasonable performance and technical standards as required or developed by
Company to install, implement and operate Bamboo.com Technology for the
purpose of accessing or viewing Bamboo.com images with respect to the Super
Site and the Real Estate System Web Sites as contemplated under this
Agreement.
8.3 Bamboo.com warrants that the system (including any software
technology) leased or owned by bamboo.com in connection with the provision and
operation of Bamboo.com Technology, Bamboo.com Images and/or the Production
Services include or shall include, at no additional cost to Company, design
and performance so that Company shall not experience abnormally ending and/or
invalid and/or incorrect results by or through the use of the systems not
attributable to the internet or the systems of Company or Company affiliates.
Futhermore, bamboo.com represents and warrants that subject to the proper
functioning of the systems of Company or Company affiliates, such systems will,
under normal use and service record, store, process and present calendar
dates falling on or after January 1, 2000, in the same manner and with the
same functionality, data integrity and performance, as the systems record,
store, process and present on or before December 31, 1999. Bamboo.com warrants
that, subject to the proper functioning of the systems of Company or Company
affiliates, the systems will lose no functionality with respect to the
introduction of records containing dates falling on or after January 1, 2000.
8.4 Without limiting any of the rights and remedies available to Company
under this Agreement or at law or equity, in the event of a breach of the
representations and warranties under sections 8.2 and 8.3 above, Bamboo.com
shall use its best efforts to correct such defect or non-compliance, at no cost
to Company or Company affiliates, upon receipt of written notification of such
defect or non-compliance from Company.
8.5 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE WARRANTIES
PROVIDED BY THE PARTIES UNDER THIS SECTION 8 ARE THE ONLY WARRANTIES PROVIDED
HEREIN AND ARE IN LIEU OF ALL OTHER WARRANTIES BY THE PARTIES, EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
9. INDEMNITY & LIMITATION OF LIABILITY
9.1 Indemnity. Bamboo.com will indemnify, defend and hold Company
---------
and Company affiliates harmless from and against any and all claims, actions,
liabilities, demands, damages, costs, and expenses (including reasonable
attorneys' fees and disbursements) arising from or relating to any claims of
the following nature, to the extent caused by Bamboo.com: (i) any actual or
alleged violation of the right of privacy, right of publicity or similar
rights of any third party; (ii) any actual or alleged violation of the
intellectual property rights of any third party in connection with Bamboo.com
Technology, Bamboo.com Images, the Production Services, and Bamboo.com Marks
or any part thereof; (iii) any claim relating to an end-user's or customer's
use of Bamboo.com Images or the Production Services and (iv) any claim arising
out of the marketing or promotion of Bamboo.com, Bamboo.com Images and/or the
Production Services to the Franchisees of the Real Estate Systems as a
preferred alliance or under any other affiliation with Company or Company
affiliates, except with respect to the banner purchases for the Super Site
provided for in Section 3.1 or access to Bamboo.com Images provided for in
Section 2.
9.2 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE
-----------------------
LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF
ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATION
OF LIABILITY PROVIDED IN THIS SECTION 9.2 SHALL NOT APPLY WITH RESPECT TO (i)
THIRD PARTY CLAIMS AND/OR (ii) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A
PARTY.
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[*] Confidential Treatment Requested.
<PAGE>
10. GENERAL PROVISIONS
------------------
10.1 Notices. Any notice required or permitted by this Agreement will
-------
be deemed given if sent by registered mail, postage prepaid, addressed to the
other party at the address set forth at the top of this Agreement. Delivery
will be deemed effective three (3) days after deposit with postal authorities.
10.2 Miscellaneous. Nonperformance of either party will be excused to
-------------
the extent that performance is rendered impossible by storm, lockout or other
labor trouble, riot, war, rebellion, strike, fire, flood, accident or other act
of God, governmental acts, orders or restrictions, or any other reason where
failure to perform is beyond the control and not caused by the negligence or
willful misconduct of the non-performing party. The relationship of bamboo.com
and Company established by this Agreement is that of independent contractors.
This Agreement will be governed by and construed under the laws of the State of
New York without reference to conflict of laws principles. This Agreement,
together with all exhibit and attachments hereto, sets forth the entire
agreement and understanding of the parties relating to the subject matter herein
and merges all prior discussions between them. No modification of or amendment
to this Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing signed by the party to be charged, and the waiver of
any breach or default will not constitute a waiver of any other right hereunder
or any subsequent breach or default. Neither party may assign this Agreement, or
assign or delegate any right or obligation hereunder, without the prior written
consent of the other party; provided, however, that Company may assign this
Agreement or assign or delegate its rights and obligations under this Agreement
to an affiliate or in connection with a successor to all or substantially all of
its business or assets relating to this Agreement whether by sale, merger,
operation of law or otherwise. This Agreement may be executed by exchange of
signature pages by facsimile and/or in any number of counterparts, each of which
shall be an original as against any party whose signature appears thereon and
all of which together shall constitute one and the same instrument.
10.3 Acknowledgments. Bamboo.com acknowledges and understands that
---------------
Company has entered into and maintains as of the date of this Agreement a
preferred alliance agreement ("Preferred Alliance Agreement") with a provider
(the "Preferred Alliance") of panoramic imaging services (in the capacity of a
supplier of such services) under which Preferred Alliance Agreement the
Franchisors of the Real Estate Systems, among other Company affiliates,
recommend, on an exclusive basis, such provider (including the panoramic
imaging services) to the Franchisees of the Real Estate Systems, Bamboo.com
acknowledges and agrees that in no event shall this Agreement be deemed to:
(i) require or commit Company or the Franchisors to recommend, market or
promote Bamboo.com, Bamboo.com Images or the Production services to the
Franchisees of the Real Estate Systems in any matter whatsoever, and (ii)
grant to Bamboo.com any right or authority to market or promote Bamboo.com,
Bamboo.com Images and/or the Production Services to any Franchisees of the
Real Estate Systems as a preferred alliance, approved vendor or supplier or
under any other affiliation with Company or Company affiliates, except with
respect to the banner purchases for the Super Site provided for in Section 3.1
or access to Bamboo.com Images provided for in Section 2.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
BAMBOO.COM, INC. CENDANT CORPORATION
By: /s/ Andrew P. Laszlo By: /s/ SIGNATURE ILLEGIBLE
------------------------------ ---------------------------------
Name: Andrew P. Laszlo Name: /s/ SIGNATURE ILLEGIBLE
---------------------------- -------------------------------
Title:SVP, Business Development Title: Vice President - Business
---------------------------
Development
Date: July 15, 1999 Date: 7/15/99
---------------------------- -------------------------------
<PAGE>
EXHIBIT A
---------
POSTING LICENSES
In the event that Company or a designated Company affiliate requires
bamboo.com to post the Bamboo.com Images to the Super Site and the Real Estate
System Web Sites:
(a) Bamboo.com grants to Company a nonexclusive, worldwide,
royalty-free, nontransferable license to display, perform and reproduce on the
Super Site, and Real Estate System Web Sites, each Bamboo.com Image that is
posted to such sites during the Term, solely for the purposes contemplated in
this Agreement. Company and designated Company affiliates will not distribute,
modify, edit, or prepare derivative works from the Bamboo.com Images without the
prior written permission of bamboo.com. Except with respect to the designated
Company affiliates, the foregoing license does not include any right to grant or
authorize sublicenses.
(b) Bamboo.com further grants to Company a nonexclusive, worldwide,
royalty-free license to use the Bamboo.com for Java Software, in object code
only, to display on the Super Site and Real Estate System Web Sites Bamboo.com
images licensed above. "Use" means storing, loading, installing, executing or
displaying the Bamboo.com for Java Software. Company and designated Company
affiliates may not modify the Bamboo.com for Java Software or disable any
licensing or control features of the Bamboo.com for Java Software. Except with
respect to the designated Company affiliates, the foregoing license does not
include any right to grant or authorize sublicenses.
(c) The Bamboo.com for Java Software is owned and copyrighted by
bamboo.com. The license set forth herein confers no life to, nor ownership in,
the Bamboo.com for Java Software and is not a sale of any rights in the
Bamboo.com for Java Software.
(d) Company and designated Company affiliates may only make copies or
adaptations of the Bamboo.com for Java Software for archival purposes or when
copying or adaptation is an essential step in the authorized use of the
Bamboo.com for Java Software. Company and designated Company affiliates must
reproduce all copyright notices in the original Bamboo.com for Java Software on
all copies or adaptions. Company and designated Company affiliates may only
transfer class files when they are called on by a "requesting" server in the
normal course of Java Applet execution. Company and designated Company
affiliates may not distribute the Bamboo.com for Java Class files. Any transfer
or copying of the Bamboo.com for Java Software by Company or designated Company
affiliates other than as expressly provided herein constitutes a material breach
of this Agreement.
(e) Company and designated Company affiliates may only use the
Bamboo.com for Java Software to read .jut files, a file format proprietary to
bamboo.com.
(f) Company and designated Company affiliates will not disassemble or
decompile the Bamboo.com for Java Software including single Bamboo.com for Java
Class files under any circumstances. The disassembly or decryption by Company or
designated Company affiliates of any Bamboo.com for Java Class file constitutes
a material breach of this Agreement.
(g) Company and designated Company affiliates will not export or
re-export any Bamboo.com for Java Software or any copy or adaptation in
violation of any applicable laws or regulations.
(h) The Bamboo.com for Java Software and any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DFARS
252.227-7013 (Oct. 1988), DFARS 252.211-7015 (May 1991) or DFARS 282.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101 (a), or "Restricted
computer software" as defind in FAR 52.227-19 (Jun 1987)(or any equivalent
existing or superseding agency regulation or contract clause), whichever is
applicable. Company has only those rights provided for such Bamboo.com for Java
Software and any accompanying documentation by the applicable FAR or DFARS
clause or agreement between Company and bamboo.com.
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